At its regular meeting on April 21, Ann Arbor’s planning commission voted 6-3 to recommend to city council that it approve the City Place project proposed along Fifth Avenue. It was the fourth time that developer Alex de Parry had brought the project before the planning commission. The first proposal was a conditional rezoning, while the second two proposals were planned unit developments – which are also rezoning proposals. The proposal sent to city council on Tuesday night did not require any changes or variances from the property’s current R4C zoning – it’s thus what’s commonly referred to as a “by right” project.
No one in the room on Tuesday seemed particularly fond of the project, from neighbors to planning commissioners. Even the developer emphasized that it was not his preferred project to build. If planning commissioners were unenthused about the project, why did a majority of them vote for it? Conversely, if it’s a “by right” project, how could three commissioners vote against it, instead of following Tony Derezinski, city council’s representative to the commission, who stated flatly: “I feel constrained to follow the law.”
On Tuesday evening, commissioner Eric Mahler couched the answer to the first of these questions in terms of chickens – the kind that come home to roost. As for the second question, the legal basis of dissenting commissioners could be playfully paraphrased as this: All those chickens that come home to roost will have no place to park their cars.
Legalities of Zoning Decisions
On Tuesday evening, one of the speakers at the public hearing invited the planning commission to reflect on a “by right” proposal from 1996, which city council had ultimately denied. It involved a plan by Burger King to construct a restaurant at Ashley and Huron streets – 206 W. Huron. Based on the council minutes of that meeting in which the speakers at the public hearing cited traffic and pedestrian hazards from the drive-through, and the summary of the petitioner’s traffic engineer’s comments, a main area of contention seemed to be the traffic flow in and out of the fast food restaurant:
Jonathan Reid, traffic engineer representing the petitioner, stated that his traffic study shows that external traffic flow, sight distances and stacking room at this location would not be a problem for the proposed use, and that the internal one-way traffic flow would not be hazardous to pedestrians crossing the driveways.
The apparent legal basis on which city council (on a voice vote) denied approval of the site plan was to disagree with Burger King’s traffic engineer and to cite point (c) below:
5:122 (6) Standards for site plan approval.
A site plan shall be approved by the appropriate body after it determines that:
(a) The contemplated development would comply with all applicable state, local and federal law, ordinances, standards and regulations; and
(b) The development would limit the disturbance of natural features to the minimum necessary to allow a reasonable use of the land, applying criteria for reviewing a natural features statement of impact set forth in this Chapter; and
(c) The development would not cause a public or private nuisance and would not have a detrimental effect on the public health, safety or welfare. [Emphasis added]
That case contrasts with an earlier one from 1975, in which a decision not to approve a site plan seemed explicitly to be given no particular legal basis: Hesse Realty, Inc. v. City of Ann Arbor, a case reviewed in 1975 by the Court of Appeals of Michigan. The summary of that case includes a quotation from councilmember Robert Faber during deliberations on the project:
We are supposed to be acting on sound planning considerations. Quite obviously we are just running around picking at straws and seeing a piece of light here and seeing a piece of dark there. … Of course, I’m going to ask that the attorney and planning staff try to come up with something. … Finally, I will vote against this and I will move that the attorney and the planning director tell us why we voted no because obviously we don’t know yet and see what he can do with that in the court …
The court found that the city of Ann Arbor had failed to base its decision to deny the site plan on legitimate evidence, and therefore found in favor of Hesse Realty.
In the year or so since staff for The Ann Arbor Chronicle has monitored planning commission and city council deliberations, we’ve never heard anyone make remarks in any way similar to Faber’s. On the contrary, public officials have cited specific reasons for voting against a “by right” project. An example was the 42 North project at Maple and Pauline, which had first been submitted (and rejected) as a planned unit development, then approved when the plan was revised and submitted as a “by right” project that conformed with zoning. Councilmembers who in September 2008 voted against the 42 North project in its “by right” form cited a different interpretation from city staff on the question of how wetlands can be mitigated.
The staff report evaluating the City Place project indicates that City Place exactly meets the relevant codes for the R4C zoning of the area:
As de Parry and his legal counsel, Scott Munzel, emphasized throughout the evening’s discussion, the project meets the relevant code and could not, they contended, be denied.
The reference to chickens coming home to roost was to the previously proposed PUD which had been denied, a project that provided an affordable housing component, as well as a green building benefit. De Parry had shown drawings of a flat-roofed version of the “by right” project when pitching the PUD. Derezinski pointed out on Tuesday night that it was well understood that the denial of the PUD meant the “by right” project would be brought forward.
How Tall Is 30 Feet and What Is a Roof?
During public commentary, planning commissioners heard from several neighbors who contended that the building’s height did not meet the 30-foot maximum, or at least took advantage of a loophole, because the drawings indicate that the buildings are 42.5 feet tall. And during deliberations, two commissioners – Evan Pratt and Kirk Westphal – scrutinized the question of whether the building as proposed met the R4C standard of 30 feet.
At issue is the definition of building height as specified in Ann Arbor’s city code:
Building height. The vertical distance of a building measured from the average elevation of the finished grade within 20 feet of the building to the highest point of the roof for a flat roof, to the deck line of a mansard roof, or to the midpoint elevation between eaves and ridge for a gable, hip or gambrel roof of a building. [Emphasis added]
For the City Place buildings, (B) is the midpoint between (A) the ridge and (C) the eaves. The vertical distance between (B) and the ground is 30 feet, thus satisfying the R4C requirement for building height.
Pratt and Westphal wondered how the relevant “eave” was identified, given the prominence of the dormers constituting the third floor of the buildings. If the eave of the dormer – which is higher than the eave specified in the drawings – is taken to be the eave in the definition, then the plan would not conform to the 30-foot height requirement. Westphal wondered specifically how narrow the strip of roof could be that connects the eave with the ridge and still have it qualify as the eave. Pratt joked that given the interior layout of the building, and the apparent interpretation that the slanted covering of the dormer was not the roof, it meant that one-third of the residents “would not have a roof over their heads!”
Pratt would eventually vote against the approval, while Westphal voted for it.
Although commissioner Craig Borum shared some misgivings about the height interpretation, he said that he could not hang his hat on that, because the pitched roof was a better design than the flat-roof alternative. Borum pointed out that above the 30-foot mark was only attic space in the proposed building – so the design plus the height definition wasn’t used to gain additional living area.
Is 36 Spaces Enough Parking for N Units?
Where Borum did seem to feel he could hang his hat was on the question of adequate parking – not the number of units per se (which meet code) but on the practical reality of the potential number of vehicles that might be associated with these particular dwelling units. Each of the six bedrooms per unit can be rented separately – a “household” can consist of up to six unrelated people. In this case, the market for such units would be students, each of whom could potentially own a car. The idea is that an increase in parking demand could become a public nuisance, so it’s on point (c) that Borum wanted to hang his hat – similar to the Burger King case:
(c) The development would not cause a public or private nuisance and would not have a detrimental effect on the public health, safety or welfare.
Commissioner Eric Mahler countered Borum’s argument with the general principle that “the specific trumps the general.” In this case the code requirement is specific: 1.5 parking spaces are required per dwelling unit. Mahler thus contended that this requirement trumped the more general concern that a lack of adequate parking could cause a public nuisance.
Commissioner Ethel Potts took up the point of how a dwelling unit is defined, saying that if each bedroom was equipped with a bathroom, then a microwave oven could work as a minimal cooking facility, with the result that each bedroom was in effect an efficiency apartment – a dwelling unit. Based on comments from planning staff and commissioner Jean Carlberg, however, the common area and configuration of the entrances make the rooms part of a larger dwelling unit.
The Central Area Plan and Zoning Decisions
In evaluating the merits of City Place against the city’s central area plan, city planning staff’s report highlighted the project’s lack of consistency with the scale and character of the existing neighborhood. From the staff report:
The following are some of the applicable goals and actions stated in the central area plan.
(a) Neighborhood preservation
i. To protect, preserve, and enhance the character, scale and integrity of existing housing established residential areas, recognizing the distinctive qualities of each neighborhood.
ii. To encourage the development of new architecture, and modifications to existing architecture, that complements the scale and character of the neighborhood.
(b) Infill development
i. To ensure that new infill development is consistent with the scale and character of the existing neighborhoods, both commercial and residential. (HN47: identify sites where a compilation of small parcels for larger developments is appropriate. Otherwise the combining of smaller parcels and subdivided residential areas is considered inappropriate.)
(c) Tension between commercial and residential uses
i. To protect housing stock from demolition or conversion to business use, and to retain the residential character of established, sometimes fragile, neighborhoods adjacent to commercial or institutional uses.
(d) Out of scale construction
i. To encourage the construction of buildings whose scale and detail is appropriate to their surroundings.
(e) Historic preservation
i. To encourage the preservation, restoration or rehabilitation of historically and culturally significant properties, as well as contributing or complementary structures, streetscapes, groups of buildings and neighborhoods.
ii. To preserve the historic character of Ann Arbor’s central area.
iii. Where new buildings are desirable, the character of historic buildings, aggregates and streetscapes should be respectfully considered so that new buildings will complement the historic, architectural and environmental character of the neighborhood.
Although the scale of the proposed project is inconsistent with the scale and character of the surrounding residential neighborhood due to the size of the proposed buildings …
Scott Munzel, attorney for the developer, noted his disappointment that elements of the central area plan with which the site plan was consistent were not highlighted by city staff (e.g., protection of neighborhoods from commercial encroachment), but emphasized that the central area plan had no legal relevance.
Whether the central area plan has legal relevance was a point contested at the public hearing on Tuesday night, as well as in an email sent to all the relevant parties by Tom Whitaker, president of the Germantown Neighborhood Association. Whitaker cited two court cases – LeDuc v Charter Township of Lyon (December 23, 2008) and Jarvis Associates v Charter Township of Ypsilanti (November 25, 2008) – in which master planning documents like the central area plan had been upheld as the basis for denying approval of proposed projects.
On Tuesday evening, Derezinski said that what struck him immediately about the two cases was that they both involved rezoning. In the case at hand, City Place, there is no rezoning requested.
Whitaker also cited the Michigan Zoning Enabling Act, which specifies (without regard to whether a site plan requests a rezoning):
(4) A decision rejecting, approving, or conditionally approving a site plan shall be based upon requirements and standards contained in the zoning ordinance, other statutorily authorized and properly adopted local unit of government planning documents, other applicable ordinances, and state and federal statutes.
In deliberations, Mahler said that he did not interpret the “shall be” clause to mean that a site plan had to meet every condition specified in every one of the planning documents referenced.
In the interim between the rejection of the PUD version of City Place by city council and the “by right” proposal on Tuesday, there had been discussions between de Parry and neighbors on a compromise plan. De Parry reported that the compromise version of the project would have preserved the facades of six of the seven houses that are to be demolished for the project. Planning commissioners expressed disappointment that they weren’t being presented with some version of that compromise. De Parry indicated that neighbors had broken off the discussions.
A Moratorium on R4C Building?
In early March, city council passed a resolution directing city planning staff to evaluate R4C zoning districts in the central area. In light of that initiatve, begun by council’s representative Tony Derezinski, some of the speakers asked for a moratorium on all building in R4C districts. Commissioner Evan Pratt indicated some interest in floating the idea formally, but the idea didn’t gain much traction.
Outcome: Voting for approval were Wendy Woods, Eric Mahler, Tony Derezinski, Jean Carlberg, Kirk Westphal, Bonnie Bona; voting against approval were Evan Pratt, Craig Borum, Ethel Potts.