Anthony Nudo says ordinance change is unconstitutional

Former Alderperson Anthony Nudo gave his opinion on the ordinance change regarding the setback of major streets and the definition of build-to line.  He said that, as the past president and president-elect of the realtor’s association, he reviews legislation and property rights.  His opinion was that this ordinance seeks to relieve pressures on property owners with stringent standards that are unconstitutional.  He believes the ordinance is, therefore, flawed.

He stated that he didn’t feel that this was the correct way to address the issues.  “This was written at the beginning of the 20th century, 100 years ago, and the exact intent was not known.  Reasons could be to widen the roads, increase the vision clearance, or keep pedestrian traffic away from auto traffic.  Nudo says that “the remedy this proposed ordinance is seeking is flawed and, therefore, unconstitutional.”

The major street setback provides that a property owner can’t build on that piece of property.  The proposed exception waives the compensation.  Nudo said that this is against the 5th Amendment and the Wisconsin state constitution as well.  He said that “the government must provide just compensation for any taking of property.  The compensation must be the market value of the property at the time of the taking.  The ordinance would waive the compensation for “successors in interest, any future property owners.”  Nudo said that this was unenforceable by the city.  “I’m not an attorney.  I would have to seek legal counsel.  But, this also forces lienholders to waive their constitutional rights.”  The example he gave was, if the Federal government put a lien on a property, and a property owner signed this waiver, the Federal government would surely want their share of the value of the property.  He suggested tabling or denying the ordinance, and sending it back for further work.  He also called for finding out the legislative intent of the original ordinance.

Nasser Museitif, owner of Our Kenosha Tap, also spoke.  He wanted to enclose his smoking area to accommodate his smoking customers.

Alderperson Rocco LaMacchia stated that he appreciated Nudo’s comments.  He asked for the city attorney’s ruling.  Ed Antaramian didn’t feel that any rights were being illegally implicated.  He stated that the attorneys in the city attorney’s office discussed this issue, and they felt that there was not a problem, like Nudo purported.  “We are not leading you into a blind alley,” he said.

Alderperson David Bogdala wanted to know what brought this forward.  Alderperson Jan Michalski said that, several of the 60th Street businesses in his district initiated this business problem, and asked him to fix it.  Bogdala stated that this ordinance change would affect every business in the city, and he felt that it would cause problems long-term.  Bogdala stated that he thought a better way would be to address the issues of the individual businesses.  He stated that he felt that someone down the road will have an issue with this.

Alderperson Michael Orth wanted to know if the city can grant an exception to the setback currently, and Antaramian said that there are no exceptions in the current law.  Orth stated that, if the city deemed the exception worthy, if necessary, they should pay the owner what’s needed.  Orth said that he was “nervous about creating a rule that is arbitrary.  I understand the concerns, but this ordinance needs more work.”

Alderperson Tod Ohnstad said that owners would know the risk and would go into the arrangement with “their eyes wide open.  The one size does fit all nature of the ordinance is what we need.  I look forward to the adoption of this ordinance change.  I also want to remind everyone that the City Plan Commission approved it.”

Nudo stated that he believed that the city’s legal counsel was wrong, but he’s not an attorney.  He is well versed in property rights.  He wants the sponsor to see what the legislative intent was.  We shouldn’t be providing an exception not knowing the outcome.

The proposed ordinance change was referred to both the Public Works Committee and and the City Planning Commission and deferred for 30 days.  The roll call vote was 9 to 5.



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