A Manitowoc couple has written a letter to several city leaders in opposition to a proposed transitional housing unit in the downtown area of the city.
The letter, which was submitted by Jeffery and Karen Patterson, was sent to Mayor Justin Nickels, City Attorney Eric Nycz, and City Clerk Mackenzie Reed.
It refers to a proposed Conditional Use Permit for Lotus Recovery Homes Inc., which is looking to use some property in the 400 block of North Lake Street as transitional housing.
The Plan Commission recommended that the Common Council approve the application, which the Petersons vehemently disagree with as they live within 12 feet of where Lotus would operate.
In the letter, (which can be read in its entirety below), the Pattersons point to three reasons they want the City Attorney to give an opinion on the proposal.
The first is that Lotus would not be operating as transitional housing as defined by the Code of Ordinances.
Second, they say that the change of use would require compliance with off-street parking regulations, which the Conditional Use Permit would fail to do.
Lastly, the Pattersons say that Lotus has not met a Critical Prerequisite to obtain a conditional use permit.
We spoke with Mayor Justin Nickels, who said that the Plan Commission looked over the conditional use permit request previously and saw no issues.
“Ultimately, the Plan Commission did vote unanimously to forward it to the council for their consideration to hopefully approve this transitional house,” Nickles explained.
He also noted that Lotus has worked with other local recovery centers in the past.
The permit request will be discussed, along with two other similar requests, at tonight’s Common Council meeting, which is scheduled for 6:30 p.m. in the Council Chambers.
Letter from Jeffery and Karen Patterson to the City of Manitowoc
Jeffrey P. Patterson
Karen M. Patterson
414 Chicago Street
Manitowoc, WI 54220
Monday, November 13, 2023
VIA EMAIL:
Mr. Justin Nickels, Mayor (jnickels@manitowoc.org)
Mr. Eric Nycz, City Attorney (enycz@manitowoc.org)
Ms. Mackenzie Reed, City Clerk (mreed@manitowoc.org)
Re:
Notice of Claim regarding Conditional Use Permit (“CUP”)
to Lotus Recovery Homes Inc. (“Lotus”)
for 404-406-408 N. Lake Street (“the Lake Street Parcel”)
Gentlemen and Ms. Reed:
We own and occupy the home at 414 Chicago Street. The eastern boundary of our parcel is approximately twelve feet from the Lake Street Parcel.
At its meeting on October 25th, the Plan Commission recommended the Common Council’s approval of Lotus’ application for a Conditional Use of the Lake Street Parcel. The Common Council has not approved such CUP, and could
- reject it,
- limit it,
- revise it,
- add conditions to it, or
- make the pending conditions more specific.
This is a courtesy notice, preliminary to a formal notice that will be issued under Wisconsin Statutes §893.80 if the Common Council approves the CUP as written.
There are currently three bases for our claim, all related to the fact that the Common Council has no legal authority to grant a CUP that violates the Code of Ordinances. The current members of the Common Council have no legal authority to disregard the Manitowoc citizens’ Code of Ordinances.
Opinion of City Attorney: We request that Mr. Nycz be tasked with providing an opinion to the Common Council as to the merit of our claim before the CUP is decided upon by the Common Council. Since
1) the Common Council, not Mayor Nickels, appointed Mr. Nycz, and
2) the Common Council has not taken a position on Lotus’ CUP,
we expect that Mr. Nycz’s opinion would be objective and not a work of advocacy for a position that may be favored by Mr. Nickels but upon which he might never have to take a binding vote and answer to his constituents.
There are three bases for our claim:
- Lotus’ Use will not be for Transitional Housing as defined under the Code of Ordinances
Under the Code of Ordinances, §15.01, “Transitional Housing” is defined as:
. . . housing intended to provide the support needed for temporary occupants who lack a fixed, regular and adequate nighttime residence to move into long-term housing, and which is usually offered as part of a transitional program that helps homeless individuals and families become independent through counseling, job training, child care, skills training, and health care assistance.
The above actually describes the use proposed by The Haven for its 19th Street CUP, which is being considered contemporaneously with Lotus’ CUP. The Haven’s proposed use fits squarely within the City’s definition of Transitional Housing. Lotus’ proposed use does not, but the Plan Commission staff elected to define Lotus’ use as Transitional Housing in order to ease the CUP’s approval.
The Haven’s application describes the first purpose of its 19th Street location this way:
The purpose of the shared housing program is to:
- Provide Affordable Housing: The program aims to offer affordable housing options to individuals or families who may face housing insecurity or financial challenges.
The Haven’s application states:
“Contrary to prevailing stigma and stereotypes, most of the men at The Haven are not grappling with addiction . . .”.
In contrast, Lotus describes its proposed use in these ways:
- Occupancy will be “for individuals in drug and/or alcohol recovery programs.” This is the principal purpose for Lotus’ operation. This is an honorable aspiration, but not a purpose that meets the definition of Transitional Housing under the Code of Ordinances.
- Lotus residents will have gone through “extensive addiction treatment before coming to” Lotus. However, residents will not have successfully completed such addiction treatment program; Lotus says its residents will “continue their recovery services” while occupying Lake Street.
- Residents will be “monitored through regular and random UA’s (Urine Analysis) and camera monitoring . . .”.
- The use or possession of drugs or alcohol on the property will result in “an automatic expulsion . . . and reporting of the incidents to the appropriate legal authorities.”
As judged by Lotus’ own submission, its principal purpose is to house persons with substance abuse disorders. Some of Lotus’ occupants have been charged with drug crimes, including the
manufacturing and/or delivery of drugs, and all present a high risk of recidivism. (See minutes of Manitowoc County Human Services Board of Directors meeting, October, 2022.) This explains the requirement for random drug tests and camera monitoring. Residents of The Haven’s 19th Street location – a total of three – will last have resided at The Haven’s homeless shelter. But there is no prerequisite that an applicant for Lotus’ Lake Street facility,” lack a fixed, regular and adequate nighttime residence.”
Although Plan Commission staff has described Lotus’ proposed use as “Transitional Housing,” the truth of such use is admitted in the Plan Commission’s own treatment of Lotus’ request: the proposed CUP imposes several public safety requirements that are highly unusual as an aspect of zoning regulation. (As an aside, we urge the Common Council to regulate operations like those of Lotus, where a near-fatal overdose took place two weeks ago, as an aspect of public safety regulations, not as a zoning issue under the Plan Commission and the Community Development Authority, whose statutorily-defined purpose is “carrying out blight elimination, slum clearance, urban renewal programs and projects and housing projects.”)
The Plan Commission’s treatment of Lotus’ application is completely different in critical ways than the CUP for The Haven: the Haven’s CUP does not contain any public safety conditions. In contrast, the Lotus CUP has several such conditions. These conditions show that any reasonable person, such as those on the Plan Commission and its staff, will conclude that the Lotus facility presents a risk to public safety:
- “A resident advocate shall be present in the residence at all times when residents are present.”
- Lotus shall expressly prohibit the use, consumption or possession of alcohol and illegal drugs in the residence anywhere on the Lake St. property by the residents.
- Lotus shall, at the written request of the Manitowoc Police Chief, install any required security enhancements into the Residence . . .”.
These are on top of Lotus’ written assurance to the Plan Commission that its residents are subject to random drug tests and camera monitoring within their residence.
Conclusion: In Lake Street’s residential R-7 zoning district, “Transitional Housing,” as defined under the Code of Ordinances §15.01, is a Conditional Use. However, Lotus has not in fact proposed a Transitional Housing use and has not even described its use that way when free to do so; only Plan Commission staff has done so. The Common Council has no legal authority, under the Code of Ordinances, to grant a Conditional Use Permit for the type of use proposed by Lotus.
II Lotus’ Change of Use Requires Compliance with Off-Street Parking Requirements
The prior legal use of the Lake Street Parcel was as a three-family residence. Under the Code of Ordinances, §15.030(1):
Residential dwelling means any building, structure, or part of the building or structure that is used or intended to be used as a home, residence, or sleeping place by one person or by two or more persons maintaining a common household, to the exclusion of others, as defined in Wis. Stat. § 66.0615(1)(di).
Dwelling, multiple means a building, or portion thereof, used or designed as a residence for three or more families living independently of each other and having their own cooking and bathroom facilities.
Under §15.430 of the Code of Ordinances, the proposed change of use of the Lake Street parcel, which will result in occupancy by 15 adults rather than the 3-6 previously permitted, requires compliance with the City’s off-street parking requirements.
Concurrently with Lotus’ Lake Street CUP application, Lotus has an application pending for the same use, for 12 persons, at 1111 Marshall Street. The Marshall Street application was also unanimously approved by the Plan Commission at its October 25th meeting.
Marshall Street is in zoning district B-1 and had been used as an office building. So, it has a parking lot to the rear of the building. The Marshall Street CUP requires that:
All over-night vehicles shall be parked off-street on hard surfaced areas on the 1111 Marshall Street property.
While imprecise, the Marshall Street CUP acknowledges the requirement under the Code of Ordinances to provide for adequate off-street parking when the use of a site changes.
The Lake Street Parcel has three single-car garages and no parking spaces as defined under Code of Ordinances 15.430(1).
Lake Street is a substandard width. For this reason, no parking is permitted on its east side. In front of 404-408 Lake Street, the street is on a hill. Where Lake Street and Chicago Street meet, they form an acute angle – sharper than 90 degrees. Until they are close to each other, drivers southbound on Lake Street cannot see drivers eastbound on Chicago Street, and vice versa. Vehicles must — often suddenly — slow or stop to allow an oncoming vehicle to pass. Lake Street is potentially the worst location within the City of Manitowoc to force more vehicles into on-street parking. Nonetheless, the proposed CUP makes no provision for off-street parking, even though the full-time resident count will increase by nine to twelve.
With the change of use to 15 unrelated residents, the Lake Street Parcel cannot meet off-street parking regulations under any interpretation of the Code of Ordinances. Apparently owing to such inability, and again wishing to ease the CUP’s approval, the Plan Commission staff made no requirement for off-street parking in Lotus’ proposed CUP. This is a glaring difference from
1) the Marshall Street CUP and
2) the CUP just granted for Lotus’ facility at 419 Park Street,
both of which have large parking areas, and are located on wide streets with much available parking nearby. Lotus also proposes to “maintain a meeting area/occasional office in the facilities, which would bring even more vehicles to the Lake Street area.
Conclusion: The proposed CUP is inherently defective in its failure to comply with the Code of Ordinances’ off-street parking requirement where the zoning use of a property changes.
III Lotus has not Met a Critical Prerequisite to a CUP: Substantial Evidence it can Fulfillthe CUP Requirements
Lotus has not, as required under City of Manitowoc Code of Ordinances 15.370 (27)(c), met the following prerequisite to a CUP:
“The applicant must demonstrate by substantial evidence that the application and all requirements and conditions established by the city are or shall be satisfied.”
Under the applicable Wisconsin Statute, § 62.23(7)(de):
“Substantial evidence” means facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons would accept in support of a conclusion.
Lotus has submitted only a half-page narrative with its application and has not demonstrated by substantial evidence that the following “conditions that would be established by the city in the proposed CUP are or shall be satisfied”:
1)“A resident advocate shall be present in the residence at all times when residents arepresent.”
With 14 adults under treatment residing at the Lake Street Parcel, who are highly unlikely to all be predictably absent from the residence at the same time, staffing such resident advocate position would require more than one full-time employee. 24/7/365; time off; vacations; holidays; weekends; 3 8-hour shifts. Lotus has not provided the City with any information as to how, in fact, it will meet such staffing requirement. Are such persons currently on staff or must they be hired? If they must be hired, what manner of compensation will Lotus offer that, in the current jobs environment in Manitowoc, will immediately result in hiring more than one capable person willing to take up residence in such a facility? If such persons are currently on Lotus’ staff, have they committed to fulfill their employee obligations while residing at the Lake Street building? What is Lotus’ plan if such a person is terminated or quits?
2) Beginning in 2024, Lotus shall file a report with the Community Development Department on or before December 31st of each calendar year detailing the status of the Residence. This report shall be filed by December 31st in each subsequent year the CUP is effective, and each report shall detail the activities at the Residence from the prior calendar year. This report shall include, but not be limited to: (i) a summary of the financing in place to operate the Residence including a summary of foundation grants, donations, lender financing and State and/or Federal grants in hand, and volunteer hours worked ; (ii) residence summary identifying the number of residents in the Residence; (iii) a description of the services being provided at the Residence and the number of residents accessing various services; (iv) the number of residents that were at the Residence, but left without notice; (v) a summary of agreements with third party providers for support services for residents at the Residence; and (vi) any other information that may be requested by the Community Development Department to address identification of common characteristics or experiences of residents at the Residence.
Although the deadline to meet such requirements is December 31, 2024, Lotus has not provided substantial evidence to the Common Council that it can satisfy such requirements. Lotus has illegally operated the Lake Street building for over two years. Lotus has stated, in its application, that the proposed conditional use will simply be a continuation of the use it has made since 2021 and that “This application is to correct the error for 404/406 Lake Street . . .”. Since the proposed CUP is a request to continue the same use, Lotus should be in a position to provide from its own existing records “substantial evidence” that the 2024 requirements “shall be satisfied.” But Lotus has failed to meet such prerequisite. As an aside: with the Plan Commission knowing of Lotus’ illegal two-year occupancy, one must wonder why such records have not been requested. These would be the most “substantial evidence” of whether Lotus can and will meet the CUP requirements. Presumably, the records exist.
Conclusion: Lotus has not provided the statutorily-required “substantial evidence that it will satisfy the conditions of the proposed CUP. Lacking such evidence, Lotus’ proposal is legally defective.
Sincerely,
Jeffrey P. Patterson
Karen M. Patterson
Cc: Common Council
bvanderkin@manitowoc.org, cbeeman@manitowoc.org, jbrey@manitowoc.org,
dkaderabek@manitowoc.org, esitkiewitz@manitowoc.org, tboldt@manitowoc.org,
bschlei@manitowoc.org, sczekala@manitowoc.org, treckelberg@manitowoc.org,
