The Saga Of The Appleton Apostolic Truth Church Rezoning – Why Did 5 Alderpersons Abstain From Voting?

[Note: After this post was published, Alderperson Denise Fenton reached out with a statement.]

As you may recall, back in May and June of this year the Common Council approved a rezoning request and Future Land Use Map amendment for a parcel of land on the north side of town in District 13 that was owned by the Apostolic Truth Church. The property had been purchased back in the 90s by the church with the intention of constructing a church building on it; however, by the time they were ready to move forward with their project, the land was zoned as Residential and listed as such on the city’s Future Land Use Map and needed to be rezoned as Public Institutional to allow them to build a church on it. The rezoning request turned out to be surprisingly controversial with two City Plan Commissioners (Alderperson Denise Fenton (District 6) and Commissioner Andrew Dane) voting against it during the 05/11/2022 Plan Commission meeting, citing concerns about Appleton’s housing needs, and five alderpersons (Vered Meltzer (District 2), Fenton, Joss Thyssen (District 8), Alex Schultz (District 9), and Nate Wolff (District 10)) abstaining from voting on it during the 06/15/2022 Common Council meeting. (Because they abstained from voting they were not supposed to participate in the discussion about the item and therefore could not explain the reasons why they chose to not support the rezoning request.)

As an outside observer, the Common Council meeting in particular seemed very strange to me and I commented in my recap of the meeting, “I feel like there is a huge part of this story that is missing. Given the circumstances around this—i.e., the length of time the property has been owned by the church, the fact that their ownership of the land predated Appleton’s control of the area, and the neighbors’ general acceptance or even welcoming of the development, there seems to be no reasons why these items should not have sailed through the approval process without barely a second look. The parking concerns seemed adequately addressed, and the housing issues brought up during the Plan Commission meeting ended up not even being raised during the Council meeting. Ultimately, there was zero indication given as to why the 5 alderpersons chose to abstain from voting. If it hadn’t passed, I would think that the city would have just been setting itself up for a lawsuit given the dearth of reasons to not approve the requested changes.”

I ended up submitting a number of open records requests in an effort to get a better idea of what was going on, but even after going through all the records I am still left baffled as to exactly what was going on and why 5 alderpersons were unwilling to support a property-owner building a church on their land.

City Planner Jessica Titel provided some background and history on the parcel in question.

• The church purchased part of the property in 1993 and the remaining part in 1997.
• When the church purchased the land, the lot was not a part of the City of Appleton and was only annexed into the city after the church purchased both parcels.
• At the time on annexation, Appleton zoned the lot as R-1A Residential.
• The P-I Public Institutional Zoning District was not added to the zoning code until 2004.
• In Appleton’s 2010-2030 Comprehensive Plan, the city originally listed the futural land use of the lot as being Public Institutional
• During the 2016/2017 update to the 2010-2030 Comprehensive Plan, the city changed the future land use of the lot from Public Institutional to Two Family Residential and Multi-Family Residential. Per Ms. Titel, “The change to this property was made because staff was being proactive in their planning for the future of this site. The church had not moved forward with plans for development at that time and staff was also fielding several inquiries regarding development proposals on this property. The change in the future land use was a result of staff being proactive based upon information we had at that time.”

Additionally, although the parcel had at one point been designated as Public Institutional on the Future Land Use Map, during the 05/11/2022 City Plan Commission meeting Ms. Titel mentioned that typically the city’s Future Land Use Map does not identify specific locations for future Public Institutional land use.

Pastor Aaron Soto of Apostolic Truth Church noted in an email to the Common Council that after they purchased the land, “ATC’s founding pastor, Michael J. Schmalz, was given the honor of naming the new street adjacent to the property. He named the street Glory Lane. For twenty-nine years, the Glory Lane property has been viewed by the congregation and community as ATC’s future church home. Many church services and fundraisers have been held on the property over the years. At the time of this land acquisition, the adjoining properties were completely undeveloped.”

He also pointed out that ATC had paid $80,000 worth of assessments for road, sidewalks, and curbs and that amount would rise to a total of $120,000 by the time construction on a church building began.

Essentially, for almost 30 years the church owned this land, always with the intention of one day building a church on it. They owned it before the rest of the surrounding area was developed, and they owned it before Appleton ever annexed it and zoned it as a residential lot. For 29 years they maintained the land and paid assessments associated with the development of the surrounding area.

Additionally, ahead of and throughout the rezoning process the church had been proactive in engaging the neighborhood around their land, communicating with them about what their development plans were, and making an effort to answer their questions and respond to their concerns.

In my opinion, given the totality of those facts, there really ought to have been a very strong, convincing, and immediately obvious reason why a church building shouldn’t be erected on that site in order to justify not supporting the rezoning request, but in looking through the records I received in response to my open records request, I simply don’t see that.

The concern raised during the City Plan Commission meeting in May was that Appleton has a limited stock of parcels zoned for residential use and, therefore, this lot should not be removed from that stock.

Council President Katie Van Zeeland (District 5) reached out to the City Attorney’s Office to find out what the Council was allowed to legally consider when approving or denying a rezoning request.

Attorney Amanda Abshire responded that the proper standards for zoning map amendments were addressed in the staff report.

Additionally, Attorney Abshire noted that the Religious Land Use and Institutionalized Persons Act (RLUIPA) was a factor in this particular request. This law was “designed to prevent discrimination in zoning decisions on the basis of religion and scrutinizes a zoning decision that adversely effects a religious institution. In short, zoning decisions may be deemed illegal if a church is treated differently than a nonreligious assembly or institution. This is particularly important since this analysis can also be forward looking. In other words, if this zoning request (from residential to P-I) is denied based on residential housing concerns, but a future rezoning request from residential to another classification is approved, it may suggest that the present applicant was treated differently. In this scenario, the availability of vacant parcels for developing residential housing may be a factor in comparing how similarly situated applicants were treated.”

She also pointed out that the City of Appleton’s Housing Affordability Report showed that, at the time of publication, “there were 617 vacant parcels of land zoned as residential and another 149 vacant parcels zoned non-residential.” 13 of the 63 pages within the report are taken up listing all the vacant residential lots in the city.

It is not clear to me where the concern about the availability of housing stock in Appleton arose to begin with. The City Plan Commission meeting was on 05/11/2022. I submitted a request for electronic records going back to 05/01/2022 from all 15 alderpersons as well as City Plan Commissioner Andrew Dane who had voted against the rezoning.

Commissioner Dane had no records responsive to my request, and the first communication I found raising housing issues as a reason to deny the rezoning request came not from a member of the public but from Alderperson Nate Wolff (District 12), who on 05/09/2022, two days before the Plan Commission meeting, contacted Alderperson Brad Firkus (District 3), who was not even a member of the Commission, and told him, “We need more housing not more churches.” He also told Alderperson Firkus that, if the Council approved the rezoning, he would like Apostolic Truth Church to promise to redevelop the site of their current church into housing. “They clearly have the money.”

Private Message conversation between Alderpersons Wolff and Firkus regarding ATC rezoning (05/09/2022)

Additionally, Alderperson Fenton stated in her 05/09/2022 Aldermanic blog post that she was concerned that the rezoning would be “removing part of the 5.5% (from the last comprehensive plan) of land within the city limits that is zoned for multi-family housing at a time when we have a serious problem with a lack of affordable housing in the city.”

Within the records I received, the first members of the public I saw raising concerns did not do so until the end of May.

On 05/28/2022 a resident of District 12 named Sarah sent a message to the Council saying, “I think Appleton residents need more housing options, not larger churches. More housing options allows for affordable housing options for citizens, thus ensuring workers can live [cl]ose to home and help our community flourish. Please do not change zoning in Appleton.”

Alderperson Wolff responded, “Thank you for reaching out on this, I intend to vote against this because we need more housing and not another church, this area has one 1 minute away.”

A District 1 resident named Helen contacted the Council members and said, “I think Apostolic Truth should have to play by the same rules as everyone else: if they bought a residential lot in this city – where we desperately need low income residential housing – then it should stay residential and they should not be allowed to change the zoning so they can build a new church. Maybe they could build some low income housing and do something useful, instead.”

A District 1 resident named Kari emailed the Council and said, “Please do not allow the change of zoning from residential to allow for the building of a mega church. The land is better suited to it’s current Zoning. We need housing the mega church can be built on land already designated for such buildings.”

A resident named Keith did not contact the full Council, but he did reach out to Alderperson Vaya Jones (District 10) and said, “I am urging you to vote NO, to not allow the land to be rezoned. They purchased the land knowing it was zoned as residential, and I believe that is the way it should stay. They can choose to build residential there or sell it to others who would.”

None of those four residents were District 13 residents, and three of the four made statements which gave the impression they lacked relevant information about the situation. Both Helen and Keith seemed to not have a full understanding of the history of the property, and Kari did not seem to know that the city does not often designate land as Public Institutional on the Future Land Use map.

Feedback from District 13 residents themselves did not seem focused on housing concerns.

Paula, a resident of both District 13 and the neighborhood by the church, contacted Alderperson Sheri Hartzheim (District 13) and the City Planning Department on 05/08/2022 ahead of the City Plan Commission meeting and told them, “My husband and I have no concerns about the requests by Apostolic Truth Church and look forward to having them in the neighborhood.”

Another District 13 resident asked, “Can you please tell me how I can find out more of what is being proposed? I certainly think that building a church there would be a terrible idea but I’m worried about other ideas that may be proposed now or in the future.”

Alderperson Hartzheim directed him to a blog post she wrote about the rezoning request and invited him to let her know if he had any questions after he read it.

An anonymous commenter on Alderperson Hartzheim’s blog asked a question about why there was a section next to the road that was not included in the rezoning request, and Alderperson Hartzheim explain that that section of land was a drainage ditch owned by the city.

A District 13 resident named Jennifer contacted Alderperson Hartzheim via the NextDoor app and said, “We have lived in our home for over 15 years. When we purchased our home, it was know[n] that that land was to become a church. It is disgusting to me that the city allowed [the] church owner to pay for everything while they seem to not be in favor of allowing [the] church to build.”

Additionally, one neighborhood resident appeared in person at the 06/15/2022 Common Council meeting and expressed concern that traffic and on-street parking would be impacted by the church; however, it was noted during the meeting that the church intended to build a parking lot with ample parking.

I reached out to Community and Economic Development Director Karen Harkness to ask her about whether or not there was a housing crisis in the City of Appleton. She did not consider housing a “crisis” although it was a challenge. She provided me a copy of the Fox Cities and Greater Outagamie County Regional Housing Strategy Final Report which came out June 2022.

This report indicates that the Fox Cities region has maintained a residential vacancy rate of about 4% for the last 22 years. The report also states that a health residential vacancy rate is between 5% and 7%.

This echoes statements Director Harkness made during the 07/27/2022 City Plan Commission meeting in which she talked about affordable housing and the housing issues in the city. Also presented in that meeting were many new residential developments both planned for the future and currently under construction. In that meeting she also noted that 21% of the 461 dwelling units that had been added to the downtown Appleton area were units that met the HUD definition of “affordable housing”.

So, the situation seems to be that Appleton has a slight housing underproduction with a 4% vacancy instead of a 5%-7% vacancy. The city is facing challenges with its housing but those challenges are not a crisis and residential development is ongoing with a reasonable chunk of that development being affordable housing.

Additionally, the Housing Affordability Report that deal specifically with Appleton instead of all Outagamie County shows that the “housing cost burden” in Appleton is very much in line with the housing cost burden in the Fox Cities, Oshkosh, and Fond Du Lac. Appleton is not a regional outlier with an uncommonly high housing cost burden.

Beyond that, as indicated by their report recommending approval, city staff clearly was supportive of rezoning ATC’s parcel and obviously believed the request met the relevant legal requirements and fell within the bounds of city code guidelines.

I reached out to both Alderperson Fenton and Alderperson Wolff, the two alderpersons who had specifically expressed concerns about housing as their reason for opposing rezoning the property, and I asked them if they could provide any sort of information or literature regarding the housing issues in the area that lead them to oppose the rezoning.

Email from Jessica Anderson (All Things Appleton) to Alderperson Wolff (07/22/2022); message through city contact form from Jessica Anderson to Alderperson Fenton (07/23/2022)

Alderperson Fenton did not response, but Alderperson Wolff did respond and said that he was influenced by Director Harkness as well as “personal life experience and conversations with people who rent. As well as the Appleton housing departments 2 year wait list.”

Based on the records I received it’s not clear to me if the three other alderpersons who abstained (Meltzer, Thyssen, and Schultz) also did so due to concerns about the impact this rezoning would have on the Appleton housing market or if they had other reasons for their abstentions. So, I reached out and asked them why they abstained. None of them responded.

Message sent through city contact form from Jessica Anderson to Alderperson Meltzer (07/23/2022), Alderperson Schultz (08/01/2022), and Alderperson Thyssen (08/01/2022)

[The next several paragraphs are just my thoughts on the matter, so feel free to skip them if you don’t like reading my thoughts.

Firstly, I realize that I’m not a lawyer; nonetheless, it is very hard to read the City Attorney’s email referencing RLUIPA and review the staff report on the rezoning request which very clearly states that staff recommended the rezoning request and Future Land Use Map amendment be approved and not come away thinking that, had the Common Council either outright denied or in some other way prevented the rezoning from happening, it would have been setting the city up for a lawsuit that would have been very hard to successfully defend against. From the standpoint of fiscal responsibility, that’s concerning, and I would be surprised if there was any taxpaying resident who wanted our elected representatives to inexplicably and unnecessarily open the city up to lawsuits.

I understand the benefit in sometimes casting unpopular votes as a matter of conscience or as a way to raise awareness about something. However, I do also think that if elected officials are going to take actions that have the potential to open the city up to legal repercussions, they ought to clearly explain their reasoning behind those votes, or non-votes as the case may be.

Secondly, the fact that 5 alderpersons were unwilling to support this particular rezoning is concerning from a property rights standpoint. ATC was not a developer that swooped in yesterday. They purchased this land nearly 30 years ago before there was much other development in that area and before the City of Appleton ever had control over it. They maintained it, paid assessments levied by the city, and didn’t raise a stink during the times when the city zoned it and set/changed the lot’s designations in the Future Land Use Map. The idea that the city somehow has a greater say in what should be done with this property than does the actual owner because the city annexed it and engaged in administrative processes such as zoning it and labeling it on a Future Land Use Map is scary. The idea that the government has a greater right to a property than the actual owner is scary. An elected official wanting a property owner to develop other land they own in a specific way that meets the elected official’s personal desires if the city allows them to move forward with their plans for an unrelated property is scary.

Private property rights are hugely essential to maintaining a healthy society, so when 1/3^rd of a city’s governing body does not seem to respect those rights, that’s scary.

Thirdly, the city has rules and a process laid out for how rezonings can happen. ATC followed the rules, met the requirements, and, as a result, received a recommendation of approval from city staff. I didn’t see objections to the rezoning arising from concern about how the relevant codes and statutes were being applied to the request. I cannot speak as to why Alderpersons Meltzer, Thysson, and Schultz did not support the rezoning, but Alderperson Fenton, Alderperson Wolff, and Commissioner Dane all expressly tied their opposition to the rezoning to their concern about housing. That concern seemed to be a personal concern that they did not make any effort to tie to the codes and guidelines by which rezoning requests were to be judged.

In reading through the standards they were supposed to be judging the rezoning and Future Land Use Map amendment against, the only thing it looks like to me that their argument could possibly tie into was that Land Use Map amendments can be denied if a different use for the land “provide[s] a proportionally greater benefit to the community as a whole.” But, outside of a voicing a general concern about housing affordability, they made no efforts to demonstrate what the proportional benefit of keeping the land designated as residential would be as compared to the benefit the church would bring or the benefit the city would enjoy by avoiding a religious discrimination lawsuit.

To me, it seems like a serious problem if plan commissioners and alderpersons are adding personal rules to the guidelines that applicants must meet. Those personal rules are not publicly known, they have not been debated openly or subject to public feedback, and they have not been officially codified. How are property owners and developers supposed to know what the rules are if their applications are being judged by off-the-book rules?

This does not seem to be a one-off situation, either. During the 08/10/2022 City Plan Commission meeting, Commissioner Sabrina Robins voted against the joining of two residential lots because it would result in the loss of one lot on which a single-family home could be built. The item passed regardless (as did the ATC rezoning before it), but it’s concerning that it seems like some commissioners are now, as a matter of course, going to vote against anything they worry will impact housing. What will happen if other commission members join them, or if a majority of alderpersons suddenly decide they also will refuse to permit any change that reduces the amount of lots zoned residential?

Rather than implementing this extra rule without any sort of public discussion or vote, a more sensible response would be to review the housing situation in the city, determine the scope of the problem, and then figure out proactive steps the city could take to deal with that problem while also respecting the rights of property owners and the needs of developers. At a minimum, if the city decides it is no longer going to allow any changes that reduce the number of residential lots in the city, they should discuss that openly and publicly and clearly place that rule into city code so that property owners can be aware of that and know that, should the city take steps to rezone their undeveloped land or change its listing in the Future Land Use Map, they need to take vigorous steps to maintain their rights instead of allowing the city to unilaterally zone their land into something they will never be able to remove it from.]

As something of a side note, separate from the still somewhat unclear reasons as to why 5 alderpersons did not support the ATC rezoning, another issue showed up in the records I received. Apparently, there was some concern that Common Council members were communicating inappropriately with each other about city business outside of posted meetings. [As a side note to the side note, this was a surprise to me. I had assumed alderpersons (and legislators in general across all levels of government) talked about stuff with each other all the time behind the scenes, but it turns out there are legal issues regarding that.]

On 06/08/2022, at the request of Council President Van Zeeland, City attorney Christopher Behrens sent an email to all of the council members reminding them to be careful about communicating electronically with each other outside of posted meetings.

In that email he stated, “Electronic communications may result in walking quorums. A series of gatherings, which could include e-mails or other electronic communications between a small enough number of alderpersons, could constitute a quorum (whether of a committee or council).” He went on to discuss the appropriate way to send group emails then went on to say, “While the dangers of group emails are more apparent, individual emails among alderpersons discussing issues may also constitute a walking quorum, through a various exchanges, until a sufficient number of parties are involved who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum.”

He also quoted a section from the Common Council Handbook:

“From the public’s perspective, the danger of the walking quorum is that it may produce a consensus or predetermined outcome with the result that the publicly held meeting is a mere formality without any real consideration of the issue being conducted in public. The use of a walking quorum is subject to prosecution under the open meeting law.”

“Any member of a governmental body, who knowingly attends a meeting held in violation of the statutes, or who, in his or her official capacity, otherwise violates the statues by some act or omission shall forfeit without reimbursement not less than $25 nor more than $300 for each such violation. ‘Without reimbursement’ is just that, a personal obligation of the official. The law prohibits the City from paying the forfeiture for you.”

Outside of Alderperson Wolff’s private message communication with Alderperson Firkus on 05/09/2022, the records I received did not show outside electronic communication taking place. It should, however, be noted that when Alderperson Wolff first fulfilled my open records request, he did not include the private message in question. I sent him a couple follow-up emails asking him if the records he provided were all the records responsive to my request. He did not respond to either of those emails. Only after I contacted the City Attorney’s Office and asked what the process was if an alderperson was withholding records responsive to FOIA request did Alderperson Wolff provide a screenshot of his private message conversation with Alderperson Firkus and a screenshot of a text message he received from Pastor Aaron Soto of ATC.

I did see Alderperson Kristen Alfheim (District 11) mention in an email to Director Harkness that her colleagues were not happy that she was holding her ground.

Additionally, a text message exchange between Alderperson Jones and a friend indicates that Alderperson Jones had been planning to abstain from the vote but then changed her mind. (Note, Alderperson Jones did not provide screenshots, but rather simply a notepad document with the content of the messages exchanged, which is why there is no identifying information for the two participants in the screenshot I provided below.)

[***Update 09/16/2022*** – Alderpersons Jones contacted me and said, “I was never planning on abstaining in the vote discussed. I had initially discussed voting no as I am a strong supporter of affordable housing. I had no personal connections or conflicts that would have had me abstain. Her response of “why did I change my mind” referred to my previous thought of voting no.”]

At least some of the alderpersons were concerned about the vote, and on their behalf Alderperson Chad Doran (District 15) reached out to the City Attorney’s Office and asked to discuss those concerns.

Attorney Behrens responded that, given the email he had sent to the council on 06/11/2022, “all alderpersons should be aware (if they weren’t already) of the potential issues surrounding conversations, whether electronic or otherwise, outside of regularly posted meetings.”

Alderperson Chris Croatt (District 14) emailed Pastor Soto to congratulate him on the successful rezoning and in that email expressed disappointment “that several of my colleagues felt the need to abstain from voting. That was very frustrating to see and I can’t speak to the rationale behind it as I never use abstaining as a method for not making a decision unless I have a conflict on interest. I don’t think that was the case for those that abstained from voting.”

I reached out to the 5 alderpersons who abstained from voting, explained to them that there was some concern that the ATC rezoning had been discussed among alderpersons outside of posted meetings and that some sort of coordination of voting may have taken place, and asked them if they had discussed it with other alderpersons outside of posted meetings. None of them responded to me.

Alderperson Fenton, however, on her aldermanic blog, posted, “Apparently, a local blogger believed that there was some organized plan to abstain and submitted a Freedom of Information Act request for all of our communications for May and most of June that contained a large number of key words, including ‘vote’. My vote was based solely on my research and understanding of the issue, and I did not discuss it with any colleague before making my decision.”

I would assume I am the blogger she referenced, but, somewhat inexplicably, she posted her blogpost on July 8, while I never asked her about discussions outside of posted meetings until July 23.