“This is never going to end,” lamented Kathy Zickert, an attorney representing the controversial Foster Park housing development project, at the end of Monday night’s Madison Mayor and City Council meeting.
Earlier, Madison Mayor Fred Perriman publicly expressed hopes that Monday’s long-awaited votes on two zoning applications for the 19-house development proposal would put the matter to rest once and for all. “We have heard from both sides tonight and we know this particular project has been before us for probably about 18 months…I think our council has had ample time to really think about this project, the good and the bad for our community and for our neighborhoods, especially this neighborhood. I ask them to vote their conscience…and we can all get this behind us with a decision,” said Perriman.
But the Foster Park project debate is not over yet.
One application was denied in a 3-to-1 vote after a long and heated public hearing, and the other application was shockingly halted before the second public hearing could begin when local attorneys James Orr and Elizabeth rushed to the podium to throw a legal wrench into the proceedings, which led to the council tabling the application once again until March.
After more than a year-and-a-half of public hearings, application altering, and community protests, the council was poised to vote on the two separate zoning requests for Foster Park—that in and of itself a bizarre situation according to city planners. Developer Brad Good’s original rezoning application requesting a Residential 4 (R4) zoning designation that would allow reduced lot sizes for the project, which was fiercely opposed by Historic District residents and advocates, was still on the docket to be voted upon only if the first application, which sought to keep the current Residential 2 (R2) zoning but required an unprecedented number of variances, was denied.
Despite Good’s compliance with the council’s request last month to reduce the number of variances, which Good decreased to 28 from 80, the council voted 3-to-1 to deny the first application.
“We did exactly what you directed us to do,” said a frustrated Zickert. Zickert argued that not only did they reduce the number of variances, but also complied with the rear-yard setbacks to make the development look more like an R2 subdivision design.
“The long and narrow width of this property is what justifies these variances from a topographical standpoint,” said Zickert of the remaining variances. “I know there was concern at one point about precedent, and I think you were correctly advised that every single case lives and breathes on its own. I doubt seriously that there will ever be another piece of property in Madison that is this long next to R2 in back of a historic structure where this would become a relevant precedent.”
Despite the concessions, multiple numbers of the public spoke against the application designed as a compromise with opponents against the original R4 zoning request for the project. Theresa Bishop, Stratton Hicky, David Land, Cathy Andres, Betsy Wagenhauser were among those who spoke against the variance application.
“This is a little like putting lipstick on a pig,” said Wagenhauser of Zickert’s claim that the development would “look like” a traditional R2 design.
“We are not for any undermining of R2 zoning,” said Andrews of the large number of variances requested.
After public comments and a failed motion for approval, Councilmembers Rick Blanton, Carrie Peters Reid, and Eric Joyce voted to deny the application.
“It’s commendable progress,” said Councilman Joyce of the variance reduction. “But the other part of my hope was that the number of lots would be reduced and that hope was not fulfilled…My main argument is that we have an obligation to protect our zoning ordinance. I think this really does damage to the requirements of R2. I fear what this means to the historic district and I fear what this means for all our zoning districts as well.”
The denial vote was met with raucous applause from the crowd.
Councilman Joe DiLetto was the sole vote to approve the application. “The hard part for me is trying to balance Mr. Freisen’s property rights with a good development and the concerns I heard from those who live around it,” said DiLetto. “It’s been a very difficult thing to do that.”
The council then asked City Planner Mollie Bogle to present the original application seeking an R4 zoning classification for the Foster Park development, which was the application that originally earned the ire of opponents and inspired the R2 application with variances as a compromise. However, before Bogle could reach the podium, Orr and Bell interjected with claims that any presentation or public hearing on the R4 application would be “illegal” due to their discovery that the Friesen Real Estate Holdings, LLC had been dissolved.
“As a point of order, if I may” interjected Orr, “Friesen Real Estate Holdings, LLC has been dissolved by the Secretary of State. It is the owner of record of these properties and has no authority to pursue this rezoning application. Under the Madison zoning ordinance, a request for a zoning map amendment must be made by the owner of the property or the owner’s designee.”
According to Orr, on Dec. 7, 2016, the secretary of state dissolved Friesen Real Estate Holdings, LLC due to a failure to file the annual registration by the state’s deadline. According to Orr, the rezoning R4 application was filed June 19, 2017, five months after the company had been dissolved.
“Under Georgia Law a corporation that has been administratively dissolved is prohibited from carrying on any business except that is necessary to wind up and liquidate its business and affairs,” argued Orr. “So obviously, seeking to have this property rezoned so they that they can build out this development and sell houses is not necessary to wind up the affairs of Friesen Real Estate Holdings, LLC or liquidate its business. Thus, what you have before you is an application that is prohibited under Georgia law. It is illegal. It cannot go forward and must be denied.”
However, Zickert stuck to her guns and accused Orr trying to manipulate the council with a last-minute strategic maneuver.
“The argument has been waived by virtue of the failure of these folks to raise it in conjunction with the variance application filed by the exact same entity… This is a pure method of gamesmanship,” shot back Zickert. “This is necessary to wind up the affairs of the corporation. This is the last held and owned property of this particular entity and it needs to get rid of it. That is all we are doing.”
While the council may have wanted to settle the saga of the proposed Foster Park project, the new objections raised by Orr and Bell were enough to halt further action.
“I am not sure what any of this means,” confessed Blanton. The council, admittedly confused about how to proceed, let down both sides. Zickert and Good hoped the council would continue the public hearing and make a final vote on the R4 application, and Orr hoped the council would immediately vote to deny the application once and for all without a public hearing. The council reluctantly voted to table the matter until March.
“They have had more than enough time to do their due diligence on their client and their corporation,” argued Orr who wanted the council to send a stern message to Good and future developers. “Why give them yet another extension…to someone who won’t even be honest with you and us about the existence of their corporation?”
“This council should send a message to the applicant and every other applicant that if you bring an illegal application to this council it will not be tabled so the applicant can have more time, it will be denied. What you have before you is an illegal application,” insisted Orr. “This application is prohibited by law. It should be denied.”
“We are not asking for a public hearing,” said Orr. “Deny this application outright, it is void, they have no right to bring it.”
But City Attorney Joe Reitman advised that a public hearing would be required if the council were to vote.
“The safe move here is to table this and re-advertise,” said Reitman. “That is the smart move.”
The council voted to table the R4 application’s public hearing and vote until March, but the writing may already be on the wall concerning its fate.
“Based on the response of the council, to what I considered a relatively sound adjusted R2 layout, is there any chance in Hades, for an R4 to get passed?” asked a skeptical DiLetto.
DiLetto won’t get his answer as to whether or not the next vote will be the final nail in the coffin for the Foster Park development until the next regular meeting on March 12.