Wednesday, January 19, 2022

Retracted my last post

My last post has been retracted

In my previous blog, I raised questions. Those questions have been resolved to my satisfaction, and I will no longer be addressing this matter. I make no insinuations of wrongdoing vs. John Duke, Elizabeth Duke, Alderman Mary Anne Gibson or anyone else.

John Duke is a long-time (43 years), respected developer. The Wilder project is his twelfth development in Germantown. Duke, who resides in Germantown, has, through his developments and civic work, contributed much to our city. His good reputation is, I am sure, well deserved.

In my previous blog post, I stated that Duke’s wife owned The Firm. In fact, she is simply one of four owners. John Duke has no ownership interest in, and is in no way involved in the management of, The Firm’s business.

Neither Alderman Mary Ann Gibson, her mother, nor Kathleen Huisman owns any interest in The Firm. While I did not say otherwise in the previous blog post, I do now think it is important to make clear their lack of any ownership in The Firm. These three individuals are merely affiliate brokers — not employees, but independent contractors. John Duke does not now have, and never has had, any business dealings or financial connection with either Alderman Gibson, Alderman Gibson’s mother, or Ms. Huisman.
 

It was only because of a changed circumstance — a school was being added to the south — that the land comprising the Wilder development could be rezoned. The land had previously laid idle for a long time because no changed circumstance had taken place. Duke recognized the justification for the change in zoning, saw its potential and has turned it into a nice walk-to-school neighborhood. From all appearances, it’s a win-win outcome for all concerned.

When Duke initially sought to rezone the property, there were a relative handful of objectors. One particular individual, as I understand it, was quite vocal in his objection. The City asked Duke to work the matter out, and, at considerable time and expense, he did. Duke and the neighbors ultimately worked out a compromise that, as I understand it, all the neighbors liked.

There was also a private covenant, to which the City of Germantown was not a party, that operated as a cloud on Duke’s title. Through considerable time and effort, Duke ultimately was able to secure enough waivers sufficient to remove this cloud. 

The City has long sought redundancy in its water system — provided by a gravity-fed water tower — due to the fact the water system nearly collapsed following a power outage caused by a storm. The City initially determined that the new water tower should be placed behind the new elementary school. This, however, would have put the tower in the rear yards of many neighbors who had supported the Wilder development. Duke revised his plan and proposed to the City that the tower be moved to its current location next to the railroad track and a commercial area.  The City agreed. In order to make this work, a three-way land swap among Duke, the City, and GMSD was effected. The City ended up not only with the water tower being placed in a more neighborhood-friendly location, but also with a tree-laden 3.5-acre parcel, conveyed to the City by Duke, that now serves as a park. Again, the result was another win-win situation. 

Duke advises that the Wilder Development, in addition to moving the water tower, also donated the 3.5 acres for the parkland that was not part of the swap. This donated land will be used for a city park full of majestic hardwoods to be enjoyed by the City’s citizens in perpetuity. This satisfied the tree mitigation requirements per the Design Review Commission.





Saturday, January 15, 2022

Cozy Family and Political Interests involving "The Firm"- Retracted

This blog post is hereby retracted. I came into some significant information that alters the facts enough for a retraction. The new version is found here. I apologize for relying on the Secretary of State website for the ownership of the firm, and for relying on the Facebook page of the business of Alderman Gibson for characterizing her new position with the firm as a "merger". 

                          RETRACTED


The Firm (is this name a nod to the John Grisham book?) is a Germantown real estate company owned by Elizabeth Duke, the wife of John Duke. (The ownership is verified by the Tennessee Secretary of State website.) John Duke is the developer of the Wilder project (72 homes) next to Forest Hill Elementary School. The Firm currently has listings in Collierville and Germantown. The Firm undoubtedly stands to earn substantial brokerage fees from the Wilder project.


Guess who was recently employed by The Firm? 

On September 13, Kathleen Huisman, wife of City Administrator Jason Huisman, was hired by The Firm.   
  
Two months later, on November 15, Alderman Mary Ann Gibson and Ganelle Roberts (mother of Alderman Gibson) merged their business with The Firm.

The firm's hiring of Ms. Huisman and its merger two months later may raise some questions for Germantown citizens.

Some Background Considerations: 

1. In March of 2018, against the vehement objections of the neighborhood, Alderman Gibson voted twice in favor of an ordinance rezoning the Duke property from estate-sized lots to residential. The required third vote was postponed twice for legal reasons related to a covenant on the property that had not been filed with Shelby County, but had been read into the minutes of a 2006 BMA meeting. Eventually, after the neighbors retained counsel, a compromise was reached between the neighbors and Duke on the number of homes to be built on the property. 

Here are some past blog posts on the issue: 





2. A City ordinance provides that a developer pay a fee to mitigate the removal of trees that takes place when developing a property. In accordance with the formula set forth in the tree ordinance, Duke would have been required to pay a mitigation fee in excess of $270,000. The Design Review Commission, however, waived this fee in its entirety at its May 25, 2021 meeting. It did so based on representations, principally by Commissioner Brian White, that Duke had "donated" the land for the water tower. In fact, Duke had exchanged the land on which the water tower was to be erected for a parcel of land located by Forest Hill Elementary School, conveyed to him by Germantown Municipal School District. GMSD agreed to make this conveyance to Duke in return for the City's deeding to GMSD parkland needed for school athletic fields. During the May 25 meeting, while the supposed "donation" was prominently mentioned, no mention was made of the land swap.  

Clear cutting of Wilder Project
I find it noteworthy that the land swap had been voted on at both a GMSD meeting and a BMA meeting, and had been publicized by various media outlets. Yet, neither the Germantown administration, nor Alderman Sherrie Hicks, the liaison to the Commission, mentioned it. The Commission, in waiving the $270,000 fee, simply ignored the value of the land received by Duke from GMSD.   

As I understand it, Jason Huisman played a lead role in negotiating the land swap between GMSD and Mr. Duke. 

The City administration, once again, allowed the Design Review Commission to break our City Ordinance on the tree mitigation fee. According to the ordinance, an arborist report is required for a fee reduction, and I can assure you there was no arborist report showing that Wilder development owed $00.00.


From Abigail Warren reporting-- 





3. At the Monday, October 13 BMA meeting, the approval of the final plan for Phase 1 of the Wilder development was put on the Consent Agenda by the administration. The inclusion of an item on the Consent Agenda signifies that it is to be passed, along with other supposedly non-controversial items, with no discussion. Although Kathleen Huisman had already been employed by The Firm, this fact was not brought to the attention of the aldermen prior to the vote on the Consent Agenda items. It is interesting to note that Alderman Gibson voted on the measure, and two months later her firm was merged with The Firm.

Addendum: I will be happy to print anyone's response to this post, in full.

 

Thursday, July 8, 2021

Tree Mitigation Costs for Developers Slashed by City Staff/Design Review Commission


I knew that the tree mitigation fee ordinance would run into trouble when it was passed in early 2019, and boy, was I right. In the two cases discussed below, the mitigation fees for developers as determined by the ordinance were reduced, in one case by over $600,000. Scott Sanders mentioned it in the last BMA meeting, so I decided to investigate. The ordinance is in Sec. 22-107 c (1). It reads   

Should the city choose to require a payment in-lieu of tree dedication fee, the fee shall be calculated as follows: A (total DBH of trees removed) × B (the current market rate cost of a typical 3" DBH caliper tree, type and cost determined by the parks director (or designee) and/or economic and community development director (or designee), broken down by inch) = amount of in-lieu of tree dedication fee to be paid. (A cap to the payment in-lieu of tree dedication fee may be implemented, at the discretion of the design review commission, if the owner is proposing to retain trees of significant size and species and/or if the trees being removed are unhealthy or of a less significant species. In this case, an independent arborist report shall be required, at the applicant's expense.) The payment in-lieu of tree dedication fee shall be collected prior to approval by the board of mayor and aldermen of the development contract for the project.


Now let's take a look at the implementation of this, in two cases. 

Olde Field Green 


The Olde Field Green is a 20 acre development south of Forest Hill School, off Forest Hill Road. 

The Olde Field Green Tree Mediation dollar fee is discussed in the Design Review Commission meeting of August 27, 2019 

Link to meeting-- start at 2:44 


The Design Review Commission accepts the staff recommendation of tree mitigation cost of $24,750. Staff does state that the amount was reduced from the full amount in the ordinance, by recalculating the number based on the property being a field, rather than heavily forested.  The staff does not say the dollar amount of the calculation as per the ordinance (which, incidentally, as you can see above, does not specify that a forest can be calculated as a field.) Please note that in this case, this was an arbitrary decision by the staff-- the staff seemed to ignore the requirements of the ordinance. The ordinance does give the Design Review Commission authority to reduce the amount, given certain conditions, but it says nothing about the staff arbitrarily reducing the amount, and, as you can see, the conditions of the ordinance for reducing the amount of the fee were not met.

The original figure per the ordinance for this development came up at another meeting, the one discussing Neshoba Farms, on January 26, 2021. At that meeting, staff was asked for the original number of Old Field Green as calculated by the Ordinance. After checking, staff said that the dollar mitigation produced by the ordinance would have been $654,000. The Commission members noted that the final figure charged was 3.8% of the amount in the ordinance!


Neshoba Farms 

Neshoba Farms is the 6.5 acre PUD on Neshoba Road west of Riverdale.  
 
The tree mitigation fee recommended by staff was calculated per the ordinance--$74,000.

At the January 26, 2021 meeting, the developer requested that the tree mitigation fee computed by the staff of $74,000 be waived. This was based on worthy trees being removed being replaced by newly planted trees. To the developer, a worthy tree is a hardwood tree, and an unworthy tree is a non-hardwood tree such as pine tree or crape myrtle.  There was a considerable amount of discussion on this topic by the Design Review Commission. 

When the staff was asked about the Ordinance-computed amount for Olde Field Green development, we learned that it was $654,000. The Commission decided to keep the precedent set by that development, and slashed the staff-recommended $74,000 tree mitigation fee to $4,500.   

Link to Entire Discussion 38.15 

Link to Justification for the Reduction 1:22.28   



Discussion: 

Obviously staff thought that the $654,000 mitigation fee for Olde Field Green, as computed by the ordinance, was excessive, and would have kept the land from being developed as it should have done. The staff, rather arbitrarily, and against the code, recomputed the figure as if it had been fields, and submitted that figure--$24,750 to the Design Review Commission.

The staff did not believe that the $75,000 fee computed per the ordinance for the Neshoba farms field was excessive, so that figure was submitted to the Design Review Commission. Keep in mind that the Neshoba Farms property is one-third the size of the Olde Field Green Property, yet the staff submitted a tree mitigation fee three times the size for that property than for Olde Field Green. The Design Review Commission felt that a precedent had been set by the Old Field Green development, and drastically reduced the ordinance amount. Because the Old Field Green $654,000 mitigation fee as determined by the ordinance had been reduced to $24,750, the decision was made to reduce the Neshoba Farms fee from $75.000 to $4.500.

However, if any precedent was set by Olde Field Green, it was that all tracts of land should be considered as farmland rather than forests. Had that precedent been followed, then the tree mitigation amount for Neshoba Farms should have been roughly one-third of the amount of Olde Field Green, because the size of the Neshoba Farms property is about one-third of the size of Olde Field Green. That figure would have been about $8,000, rather than $4,500.   

Conclusion: The methodology of computing the Olde Field Green tree mitigation fee was not allowed by the Ordinance, and it now stands as the precedent for other fee mitigation fee cases that come before the Design Review Board. 

Recommendation: 

The Design Review Commission and the Staff need help, in the form of a new tree mitigation fee ordinance.  The Design Review Commission is using Olde Field Green as a precedent, yet that precedent did not follow the ordinance! The amounts per tree are fine, but an established minimum amount per acre should be built into the code. The developer would be charged the lesser of the amount as determined by the ordinance, or the minimum amount per acre.  There could continue to be a measure for a builder to reduce the fee below this, with an arborist report.  If I had my druthers, the minimum per acre would be set above the amount that would be above the amount set by assuming the land was a field. After all the purpose of the ordinance is to preserve trees. Also developers here, unlike many places pay no impact fees. Funds into this go into a special tree fund that is used for the care and planting of trees on public land.  

Addendum: The Duke property development north of Forest Hill School has also had a tree ordinance passed, on May 25, but it was decided in Executive Session of the Design Review Commission, and it was passed as part of the consent agenda. It would take a a couple of weeks to get information about that through open records requests, and I thought this issue needs attention now.












Saturday, February 20, 2021

Actual Return to Transparency proposed for BMA meetings

 


In the future, will all aldermen once again be allowed to speak on subjects important to the City at BMA meetings?  That depends on whether a proposal by Scott Sanders is passed on Monday.

At the Monday, Feb. 22 BMA meeting, Alderman Sanders is proposing a return to Robert's Rules of Order, and the Consent Agenda, rather than the so-called Preliminary Agenda. Robert's Rules of Order is the gold standard of parliamentary procedure that virtually every municipality in the country adheres to, other than Germantown.

 
History: April 6, 2019 was a day that will live in infamy in the history of our City. That was the day that the BMA ditched Robert's Rules of order and silenced minority voices of the aldermen. The "consent agenda" was abandoned, in favor of a "preliminary agenda".  In a consent agenda, a number of different items can be passed at the same time, with no discussion, as long as all aldermen agree to it. This is a useful time-saving measure.  In the made-up term "preliminary agenda", only three of the five aldermen have to agree for something that can be passed with absolutely no discussion.  For more information, see this blog post:  

City Administration Wants Sanitized BMA Meetings 


A Call to Action: 
 
Please consider sending in your thoughts on the subject to "Citizens To be Heard." 

From the City Website:  

The Board of Mayor and Aldermen encourage active participation and engagement with governing by making available Citizens to be Heard as part of the meeting agenda. To participate in Citizens to be Heard, please send your submittals, 500 words or less, to CTBH@germantown-tn.gov and include your name, address and phone number. All emails submitted between Wednesday at 12 pm before the meeting and 12 pm the day of the meeting will be delivered to the Board prior to the 6 pm Board meeting.  The CTBH emails will be included in the agenda packet and available for the public to view at 6 p.m.


Here were my thoughts on the subject, shared with the BMA in Citizen's to Be Heard later on that year-- 

This Board’s new rule regarding the consent agenda is an arrow aimed at the heart of transparency.


The change surrounding the renamed Consent Agenda, now called “Preliminary Agenda”, is shocking in its abandonment of good governance. In the preliminary Agenda, items can be passed as a group with zero discussion. Items can now be removed from the preliminary agenda only by the vote of three aldermen. The name change became necessary because the term consent” is an official term used by Robert’s Rules of Order. Robert’s Rules is the centuries old gold standard of parliamentary procedure, the time tested way of balancing the need for orderly meetings while respecting the rights of minority members to be heard. In a jaw-dropping move, the City has abandoned Robert’s Rules of Order. An item’s inclusion in a consent agenda requires unanimous approval using the time-tested Robert’s rules.


And, for your information, the word preliminary means an event preceding something fuller or more important. Just when do we get to the something that is fuller and more important? It actually sounds like the vote itself is preliminar


The only conclusion that I can draw is that you fear the citizens’ hearing honest debate and discussion. Only in the short, untelevised Executive session is there a small hint of discussion allowed about the preliminary agenda.

Sunday, November 1, 2020

Update on Campaign Donations-- the Rich get Richer

Just a quick update on the latest (through October 24) total dollar amount of campaign contributions that aldermen candidates are reporting. There is obviously a lot at stake this election. The establishment candidates candidates, specifically those endorsed retiring aldermen Janda and Owens-- McCreery, Hicks, and Ueleke, are still raking in the cash. Their challengers-- Johnson, Musso, Miles, and Motley, cannot keep pace. I reported third quarter accumulated contributions in this Donations Over the Top in Aldermen Races. Here are the updated figures of contributions reported to the Shelby County Election Commission through October 24:   


 
As I was writing this, I realized that The Daily Memphian has come out with an article on contributions, with totals:  
 
Finances, Endorsements, Show Alignment in Germantown Elections

I have collected the new reports from the candidates' filings and placed them in this folder for your convenience. 

Folder with October Alderman Candidates Filings  

The previous reports: 

Quarters 1-3 Candidate filings

Of particular note are two large donations to Ueleke's campaign from PACs-- the FEDEX PAC, and the Tennessee Association of Realtors PAC.  McCreery scored a large donation from Ray Gill, developer of Travure, the multi-story office building and hotels on Poplar just east of Kirby. Hicks also reported a large donation from the Tennessee Association of Realtors PAC and from the campaign funds of Forrest Owens. 


Monday, October 19, 2020

Donations Over The Top in Aldermen Races

The $$$ donations reported to the Shelby County Election Commission by alderman candidates are staggering, especially for a job that pays only $12,000 per year. These are the totals reported as of September 30:  


Jon McCreery took the prize, with only a little less money than former Alderman Barzizza had when he ran for Mayor in 2018. The three candidates most flush with cash are all supported by Mayor Palazzolo, Alderman Forrest Owens, and Alderman Rocky Janda. Their signs are in front of the former Germantown News Building, now owned by ex-alderman and current SCEC Commissioner Frank Uhlhorn, and they are all using Watkins-Uiberall accounting firm, the long-time City auditor, for their filings.  
  
As you can see, in each position, the administration-supported candidates have considerably more than twice the donations of their challengers. Educated voters will keep that in mind when they see television ads or read slick mailers.  

Where does all this money come from?

Although the SCEC has most of the filings on its website, for easy access I put them all in a folder. For convenience I combined reports when a candidates reported more than one quarter.


I wondered if Collierville candidates for Mayor needed this much cash, so I checked some SCEC filings for them. I found only two candidates with significant donations, one with $11,000, and another with $10,250. 

As of this writing, some third quarter reports have not yet been updated on the SCEC website.