City Council Moves Toward Height Limits

Ann Arbor City Council Meeting Part I (April 6, 2009): At city council’s meeting Monday evening, there was a clear consensus among councilmembers that they wanted to amend the rezoning package for the downtown that had been recommended by the planning commission. The consensus was to include an absolute building height limit. The deliberations thus focused on the exact nature of the limit and where it would apply.

The outcome of those deliberations was that the final version of the rezoning package – which council will consider for a final vote on June 1, 2009 – will include a 180-foot height limit, roughly 16 stories, for the core downtown (D1) zoning. Exceptions include the South University character area, which was amended on Monday to be split into two different character areas – South U. 1 and South U. 2, to be zoned D1 and D2, respectively. In contrast to other areas zoned D1, South U. 1 is now proposed to have building heights capped at 150 feet.

The second exception to the 180-foot limit is the East Huron Street 1 character area – East Huron was also split into two different character areas last night, but is still zoned D1 in both. For the East Huron 1 area, which is the north side of Huron Street between North Thayer and Division, the building height limit is now also proposed  be 150 feet.

Originally scheduled for a final vote in May, the date has been moved – to allow planning commission to reconsider the downtown plan, which it has already adopted. The subdivision of character areas undertaken by council on Monday will require revision to the downtown plan, which state law mandates that both council and planning commission  adopt. So instead of adopting the downtown plan at its April 20 meeting as originally scheduled, council will vote to send the downtown plan back to planning commission. Planning commission could then have time to consider whether it would like to amend the downtown plan to accommodate the changes council made on Monday to the zoning package.

In addition to adding a building height cap and subdividing two character areas, council also eliminated the active use requirements for certain streets that planning commission had passed. Other amendments made to the zoning proposal on Monday addressed issues ranging from street frontage to a formula for calculating a penalty for a broken promise.

A possible amendment sponsored by Marcia Higgins (Ward 4) to eliminate character districts from the zoning package was not brought forward.

Amendments to the Proposal (Chronological Order)

We present each amendment in the chronological order it was considered.

They’re presented as excerpted from a compilation that Ann Arbor city staff made of councilmembers’ requests for amendments to the A2D2 zoning proposal. The complete .pdf of the April 3, 2009 memo of possible amendments can be downloaded here. (Caveat: There’s a more recent, April 6 memo, of which we don’t yet have a copy.) Planning commission’s recommendations can be downloaded here.

Sponsors of amendments are indicated in parenthesis. The list of considerations include both the rationale for the amendment, plus possible downsides identified by staff.

Amendment 8 (Greden, Taylor, Teall): Add and revise height limits in Character Overlay Zoning Districts.

• Provides clear direction for building design.
• May prevent larger parcels from fully using premium floor area bonuses if diagonal requirements in Character Overlay Districts are retained.
• Inconsistent with Downtown Zoning Advisory Committee recommendation.

Result of Deliberations: Areas zoned D1 get an absolute height limit of 180 feet, with the exception of the South University character area, which was given a height limit of 150 feet. [Later in the meeting, the South University character area was split into South University 1 and South University 2, zoned D1 and D2, respectively. The 150-foot height limit thus applies to South University 1, while a lower limit of 60 feet, common to D2 areas,  applies to South University 2.]

Deliberations: Planning commission’s approved recommendation was for no height limits in D1, with the exception of a 170-foot height limit in the South University character area. On Monday night, Leigh Greden’s  proposed absolute building height limit for the D1 district was 180 feet except for the South University character district, which was 120 feet.

In a brief exchange with Greden (Ward 3), Mayor John Hieftje established that 180 feet corresponded roughly to 16 stories. [Hieftje has championed a 14-story height limit for some time]. Hieftje asked that a motion be brought to amend the 180-foot limit to 160-feet, and that motion was made by Carsten Hohnke (Ward 5). In deliberations, there was a clear consensus that some height limit or other was desired, in order to have clarity for the community about possible building heights. But councilmembers differed in their assessment of their conversations with developers and planning professionals about the practicality of using allowable square-footage premiums under the additional constraint of an absolute building height limit.

Briefly, here’s how square-footage premiums work. Developers are allowed to built a certain amount of floor area “by right” as long as the project meets building codes (like minimum doorway widths, adequate structural supports, and the like). That automatically-allowed square footage is proposed to be 400% FAR in D1. What’s FAR? It’s the floor-area-ratio, where the numerator is the square footage of the building and the denominator is the lot size. As an example, if a developer were to construct a building on just half of a lot, and left the other half open, then they could construct a (perfectly rectangular) building 8 stories tall based on 400% FAR. If the developer elected to build on just 1/4 of the lot, then 400% FAR would correspond to a 16-story building. Clearly, there are economic factors that mitigate against building on just 1/4 of the lot.

In addition to the automatically-allowed 400% FAR, the proposed zoning package recognizes various bonus FAR – premiums – that can be earned by a project. This bonus square footage is related to various aspects of development that the city would like to encourage: residential use, affordable housing, green building, historic preservation, pedestrian amenities, public parking. The idea is that developers would prefer to build more than 400% FAR, and will thus be encouraged to include elements in their projects that the city would like to see. As proposed by planning commission, the maximum FAR that could be built is 900% – if a developer designed a project that included every possible premium element. Built on just half the lot, a perfectly rectangular building at 900% FAR would result in an 18-story building.

From a design perspective, the  hope is to avoid perfectly rectangular buildings that extrude straight up from the bottom to the top on all sides. To encourage buildings to “skinny-up” as they get taller, one of the mechanisms proposed by the planning commission was to use a maximum tower diagonal (shorter than the dimensions of the typical building base diagonal) to encourage slender design, letting air and light through. But a slender design versus a squatty design with the same FAR needs to be taller. If an absolute building height maximum is added to the mix, a slender design with maximum FAR could possibly exceed that limit, depending on what the limit is.

So with  900% maximum FAR and an aesthetic that prefers slender over squatty design, the question confronting council was this: Can developers take reasonable advantage of the FAR premiums, without bumping up against a height limit of 160 feet? For Carsten Hohnke, the answer was yes, based on conversations with developers and professional planners. For Stephen Rapundalo (Ward 2), the answer was no, based on conversations with developers and professional planners. “Maybe,” suggested Rapundalo, “we talked to different individuals!” Rapundalo also noted that the understanding he’d gained was that there was a tipping point for economic viability at somewhere around 14-15 stories.

The proposal to revise Greden’s 180-foot limit downward to 160 failed on a rollcall vote: For 160: Anglin, Hieftje, Briere, Teall, Hohnke. Against 160: Smith, Derezinski, Rapundalo, Greden, Taylor, Higgins.

On the question of the height limit for South University, which Greden had proposed to change to 120 feet,  Derezinski noted that planning commission had discussed the limit at some length, and that the recommended limit of 170 feet had come as the result of much debate and deliberation. (Derezinski serves as council’s representative on planning commission.) As a compromise, he proposed to revise Greden’s 120-foot limit upward to 150 feet.

Greden argued against the 150-foot limit, saying that South University was “a little bit different.” The planning commission, he said, had also recognized this, and he therefore urged his colleagues to maintain the distinction.  He offered two examples of projects currently under construction that are shorter than 120 feet: Zaragon Place and 411 Lofts. This showed that 120 feet was not a barrier to economically successful development, he said.

Countering Greden was Sandi Smith, who argued that projects like Greden mentioned, which are limited in height, are targeted towards student renters, and are on the high end of the economic scale – $1,000 per bed.  This, she said, did not promote variety and diversity of housing options.

Briere reported that she’d walked South University on Sunday with a developer – part of Ward 1, which she represents – and acknowledged that $900+ per bed was what you expect with a 120-foot limit. She said that she’d drafted a 120-foot limit for South University in another amendment, and would be supporting the 120-foot limit.

Christopher Taylor (Ward 3) asked his colleagues to consider what it would be like to have One North Main (at 132 feet plus 12) or Campus Inn (at 144 feet) in the South University area – both of which are under 150 feet. He urged his colleagues to err on the side of caution. If a 120-foot height limit is a limit on development, then council will see that, he said, and can change it. The only think that would be lost, he said, is opportunity. If the mistake is made in the other direction – embodied in bricks and steel – the we’ll have lost something else, he said.

The rollcall vote went in favor of the 150-foot limit. Against 150 feet: Anglin, Hieftje, Briere, Greden, Taylor. For 150 feet: Smith, Derezinski, Rapundalo, Teall, Higgins, Hohnke.

On the main motion for a 180-foot height limit in D1 and a 150-foot limit in the South University character area, the council voted unanimously in favor of it.

Higgins noted that with a planned unit development (PUD), it might be possible to exceed the 180-foot height limit. PUDs must be approved on a case-by-case basis and have their own criteria and standards.

Amendment 2 (Greden, Taylor, Teall): Rezone properties in the South University commercial district that are outside of the Downtown Development Authority boundary to D2, rather than D1.

• Reflects “interface” area between South University retail core and adjacent residential.
• Inconsistent with Vision and Policy Framework and Downtown Zoning Advisory Committee recommendations.
• Represents a “downzoning” from the current C2A floor area ratio (by-right from 400% to 200% and premiums from 660% to 400%).
• Would require amendment of the Downtown Plan (Future Land Use map and Zoning Plan), which was adopted by Planning Commission on Feb. 19, 2009.
• Forest Street parking structure would not conform with D2 height, coverage and open space requirements.
• For consistency, should be linked with separate character area district (see Amendment 4).

Result of Deliberations: Areas outside the DDA boundary but in the South University character area were changed from the proposed D1 zoning to D2. In the D2 South University area, a 40-foot setback for areas that abut residential properties was added and approved. A similar 40-foot setback in the D1 South University area was attempted but not approved, so it remained at the 30-foot distance recommended by planning commission.

Deliberations: One basic argument, advanced by Greden, was that to leave the area in question zoned D1 would make it the only area outside the DDA that is zoned D1. A second argument was based on the fact that one of the great underlying purposes of the rezoning was to ensure adequate stepping down from the core downtown area to the neighborhoods, and that the change to D2 would help realize that purpose.

The concerns expressed about the change were reflected in Higgins’ questioning of Wendy Rampson, with systems planning at the city of Ann Arbor (who has led much of the staff effort on the A2D2 project). Higgins wanted to know if the change represented a “downzoning.” Rampson’s answer: Yes, inasmuch as the area was currently zoned C2A, which allows 400% FAR construction, whereas the D2 area would allow only 200% FAR.

Asked if a conversation had occurred with owners of the downsized property about this possibility, Rampson said that up to now, the proposal had always been for D1. Otherwise put, no. Higgins contemplated the possibility that such a conversation could precede any change from D1, so she asked Kevin McDonald, senior assistant city attorney, to clarify if the change was “substantive.”

The reason Higgins wanted clarification is this: A “substantive change” – if  made  at the second reading of the ordinance before council (yesterday’s meeting was the first reading) – would require the matter have an additional reading in order to satisfy the requirement that any ordinance change have a first and second reading before council.

McDonald said that the change was substantive, so if it were made at the second reading (now scheduled for June 1, 2009), it could not be given a final vote at that time.

Outcome: The properties outside the DDA district, but still within the South University character area, were changed from D1 to D2 with a 40-foot setback for construction that abuts residential areas. Dissent on the rollcall vote came from Derezinski and Higgins.

A separate motion attempting to similarly increase the setback (to 40 feet) in the area of South University that remained D1 was then put forward. Higgins noted that the original setback proposed by planning commission had been 15 feet, and that the 30-foot recommendation before them had been the result of a compromise on planning commission. Derezinski confirmed that the 30-foot setback had been “hard fought” on planning commission and had involved a lot of discussion.

Outcome: For D1 areas in the South University character area, the setback to residential properties stayed as originally proposed at 30 feet. The rollcall vote: For 40 feet: Hieftje, Briere, Greden, Taylor. For 30 feet: Anglin, Smith, Derezinski, Rapundalo, Teall, Higgins, Hohnke.

Amendment 4 (Briere): Subdivide the South University Character Overlay Zoning District into two separate districts.

Result of Deliberations: Subdivision of the South University character area into two different areas based on the previously passed change of some areas to D1. Passed on a voice vote, with no audible dissent. Briere characterized the amendment as largely definitional. Here’s a map of the proposed South University 1-2 split.

Amendment 9 (Higgins, Hohnke): Remove diagonal requirements from Character Overlay Zoning District massing standards.

• Provides maximum flexibility for building design.
• Inconsistent with Design Guidelines Advisory Committee recommendations.

Result of Deliberations: Maximum diagonal requirements were removed.

Deliberations: The argument for removing the diagonal, advanced by Hohnke, was based on the fact that council had approved a height limit. Height limits work against maximum diagonal requirements, he said. [See discussion of FAR in connection with Amendment 8 above.] Greden also argued against diagonals as unnecessarily complicated. Rapundalo echoed Greden’s sentiments about simplification, saying Greden had “hit the nail on the head.”

Outcome: Motion carried on a voice vote.

Amendment 6 (Higgins, Hohnke): Eliminate “active use” requirements for retail streets in D1.

• Addresses concern about creating non-conforming uses for existing businesses.
• Removes tool for retaining pedestrian-attracting uses on retail streets.

Result of Deliberations: “Active use” requirements were eliminated for retail streets in D1.

Deliberations: Hohnke said he had a great deal of respect for the work the planning commission had done and that the intuition was good: Downtown should promote a vibrant pedestrian experience. However, the “active use” requirements, Hohnke said, were “too blunt an instrument.” He noted that some banks – a typical example of a “non-active use” tenant – were starting to become “third-places” with the introduction of coffee bars. The goals of a vibrant pedestrian experience, he said, could be accomplished better through design guidelines.

Briere argued against the requirements as somewhat overreaching in the government’s role in prescribing possible uses to property owners. Higgins suggested that in the current economy, there might be tenants for the downtown that they never imagined could be possible. Derezinski noted that there had been a nice “Other Voices” point-counterpoint run in the Sunday edition of The Ann Arbor News, with planning commissioner Kirk Westphal writing for the “active-use” perspective and local developer Ed Shaffran writing against it. Derezinski noted that eliminating the “active use” requirements would put additional pressure on the design guidlines. Greden said it was better to have some tenant, even if a “non-active” one, than no tenant.

Outcome: Motion carried on a voice vote.

Amendment 5 (Briere): Subdivide the East Huron Character Overlay Zoning District into two separate districts with different massing standards, including a height limit in the proposed East Huron 1 character district.

• Reflects unique massing requirements of D1 zoning adjacent to residential.
• May prevent parcels from fully using premium floor area bonuses if diagonal requirements in Character Overlay Districts are retained.

Result of Deliberations: The East Huron character area was split into two different character areas with the area between Division and North Thayer on the north side of Huron Street designated as Huron Street 1. Huron Street 1 was given a 30-foot setback as a buffer to the abutting residential historic district, along with a 150-foot building height limit.

Deliberations: Smith said that the parallel to South University struck a chord with her. The buffer, she said, goes a long way towards creating a transitional zone. The height limit, she suggested, would help taper the area off as it led from the downtown core to the residential neighborhoods. The buffer versus the height limit were broken out as separate motions at Higgins’ request.

Outcome on 30 foot buffer: Unanimously approved.

On the question of height, Taylor said he understood the parallel of treating distinct cases distinctly, but that South University was different from East Huron. East Huron, he said, was a downtown space, and should be treated accordingly. Hieftje acknowledged that Huron Street was one of the widest streets downtown, but said that it qualified as a special circumstance. Increased density, he said, could be achieved with 150 feet.

Higgins countered that all along the planning process, there’d been agreement that the Huron Street corridor was the place to put tall buildings. Briere made a case based on the fact that as a practical matter, the 150-foot limit was an issue for only a single side of the street for a single block: between State and Division. That would not limit the ability to construct taller buildings along Huron. Greden was ambivalent, saying that the arguments from Smith and Briere were outstanding, but that when he looked at his colored map, the area stood out as “the core of downtown.”

Outcome on 150-foot height limit: Approved, with Derezinski, Greden, Taylor and Higgins dissenting.

Non-numbered Amendment (Smith): Designate the  property at 322 East Kingsley (recently the subject of a historic district commission hearing on its proposed demolition) as D2.

Result of Deliberations: The property at 322 East Kingsley was designated as D2. The motion passed on a voice vote with dissent from Briere.

Non-numbered Amendment (Smith): Define “adult entertainment” in language that is neutral with respect to sexual orientation.

Result of Deliberations: In the section on possible uses, the definition of “adult entertainment” was altered to be neutral with respect to sexual orientation.

Amendment 3 (Greden, Taylor): Revise building frontage designations on Washtenaw Avenue and Forest Street.

• Reflects existing character along the street frontage segments.
• Will make buildings at 1338 Washtenaw and 1335 South University non-conforming due to insufficient building frontage (i.e., buildings have less than 15-foot front setback).

There are three types of frontage:

1. Primary Street: Lot frontage where placement of buildings at the front property line is desired.

2. Secondary Street: Lot frontage where a range of building setbacks from the front property line is acceptable.

3. Front Yard Street: Lot frontage where a setback from the front property line is desired.

Result of Deliberations: The proposed frontage changes in the amendment made a section of Washtenaw Avenue a “front yard street” and a section of South Forest a “primary street.” Here’s a map of the proposed frontage designation changes.

Outcome: Motion carried unanimously.

Amendment 11 (Taylor): Increase penalty for failure to meet premium LEED commitment proportional to the benefit gained by the premium.

• Formula reflects increased penalty with increasing scale of premium.
• Formula is complex and may be difficult to explain.

Here’s the formula:

P = [(LC-CE) /LC] x CV x GPUP

P is the penalty; LC is the minimum number of credits to earn the requested LEED certification; CE is the number of credits earned as documented by the U.S. Green Building Council report; CV is the construction value, as set forth on the building permit for the new structure; and GPUP, the green premium utilization percentage, is the greater of (i) .075; or (ii) a fraction, the numerator of which is LEED FAR, the denominator of which is TFAR. LEED FAR is the minimum amount of floor area proposed that is attributable to the Green Building Premium; TFAR is the total floor area proposed.

Taylor has provided an Excel Spreadsheet that can be used to see how the formula reflects the interplay between the different variables by plugging in different values.

Deliberations: Taylor introduced the formula as conforming to previous practice in that it makes the penalty proportional to the degree to which a developer falls short of meeting the LEED standard. Queried by Higgins, Taylor said that if a developer promised Gold certification, but only achieved Silver, the formula recognized that the developer had done something, namely achieved Silver, and penalized based on the gap between the achieved Silver and the promised Gold.

Where Taylor’s formula improved on previous practice, he said, was also to relate the penalty to the benefit obtained: the additional square footage the developer was allowed to build as a result of making a promise to achieve a particular LEED standard.

There were assurances from staff that the formula could be made clear.

Outcome: Motion carried unanimously.

Amendment 10 (Briere): Revise Affordable Housing Premium to state that cash-in-lieu of units is not permitted.

• Reinforces that the purpose of the premium is to provide on-site affordable units.
• May not be necessary, since section refers specifically to providing on-site units.

Result of Deliberations: No language was changed.

Deliberations: In the course of the discussion, Briere allowed that her added langauge might be somewhat redundant, but that she’d been asked by a constituent to emphasize the point.

Outcome: Motion failed on a voice vote.

In discussions related to the affordable housing provisions that did not lead to an amendment, Rapundalo inquired about where the 600-square-foot minimum unit size came from, which applies to affordable housing units. He described the 600-square-foot size as “somewhat sizable.” Wendy Rampson clarified that the number had been discussed with Jennifer L. Hall, with the office of community development. Rapundalo did not offer an amendment, but clarified with assistant city attorney Kevin McDonald that a change downward in size would not be sustantive, and could thus be brought forward at the second reading in June without delaying the process.  Rapundalo said he’d ask staff to follow up with some specific questions.

Amendment 12 (Briere): Add Small Business Premium.

• Currently no definition of “small business” in zoning ordinance.
• Standards for affordability would need to be developed.

Result of Deliberations: No premium created for “affordable small business space.”

Deliberations: There was a great deal of support in concept, but as Smith put it, the proposal needed a lot more “meat on the bones,” in order for her to support it. She noted that “small business” needed to be defined – as volume, gross sales, people, floor space, or some other means. Others also expressed support for the concept, but found the proposal insufficient in detail.

Outcome: Motion fails on voice vote.

Definition of Floor Area: Asked by Rapundalo to clarify how floor area was calculated (important for FAR calculations) with respect to mechanical systems and and elevator shafts, assistant city attorney Kevin McDonald said that staff was still examining the question and that a decision on the matter would affect language across all of the city’s code. It was something that the council’s  ordinance revisions committee would be looking at, he said. The ordinance revisions commitee was appointed to clean up langauge across the city’s code.

Motion to Postpone: Mike Anglin (Ward 5) moved to postpone the A2D2 zoning package until September when the zoning revisions could be accompanied by the design guidelines, which are supposed to eventually accompany the zoning revisions. Further, he said, the FEMA (Federal Emergency Management Agency) flood maps would then be in place, which would allow council to evaluate the zoning proposals in light of the maps.

Higgins, who serves on the A2D2 steering committee, has said that once the zoning piece is handled, work could proceed much faster on the design guidelines. She has indicated that design guidelines could come before council in September.

Anglin’s motion, though receiving a second from Briere, received no support in the deliberations.

Vote on First Reading

The proposal as amended above was unanimously approved. Greden urged that a clean copy of the entire proposal be publicized as soon as possible. That way the public would have a clear understanding of the state of the proposed ordinance that will heard at second reading before council on June 1, 2009 – at which time there’ll be a public hearing.

[Editor's note: A write-up of other events at the council meeting, unrelated to A2D2 zoning, is forthcoming.]

Present: Sabra Briere, Sandi Smith, Tony Derezinski, Stephen Rapundalo, Leigh Greden, Christopher Taylor, Margie Teall, Marcia Higgins, Carsten Hohnke, Mike Anglin, John Hieftje

Next Council Meeting: Monday, April 20, 2009 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave [confirm date]