Another Draft of Downtown Design Guides

Ann Arbor City Council Sunday night caucus (Oct. 4, 2009): At its Sunday night meeting attended by only three councilmembers – Mayor John Hieftje, Sabra Briere (Ward 1) and Mike Anglin (Ward 5) – downtown zoning was again center stage.

A dozen or so residents attended the caucus and many of them addressed the changes that can be traced in the draft documents for A2D2 downtown building design guidelines from Oct. 15, 2007 to April 30, 2008, to Aug. 28, 2009, and most recently in the Sept. 30, 2009 version of the document.

The council will open a public hearing on the proposed guidelines on Oct. 5, but is not scheduled to vote on the matter until at least Oct. 19. At caucus, Hieftje said that the public hearing might be left open until Oct. 19 and that it was possible that no vote would be taken then – there was “no rush,” he said.

The complaint of many of those who addressed caucus was this: A commitment to the design guidelines as a compulsory part of project review had been gradually written out of the various drafts.

The challenge in following the changes to the draft was made more difficult, some speakers contended, by the fact that the city had altered its strategy for publicizing public hearings. That’s a strategic necessity driven by the fact that the closing of The Ann Arbor News leaves The Washtenaw Legal News as the only local “newspaper of general circulation.” Other issues that came up at caucus included an item on Monday’s agenda to spend $122,480 to have the consulting firm Clarion Associates to review the city’s zoning code – as well as master plans, and other documents related to development – for inconsistencies. Clarion has offices in Colorado, Florida, Illinois, North Carolina, Ohio, and Pennsylvania.

Although an ordinance addressing toy guns returns to Monday’s agenda, it will likely be put off again – this time to be tabled instead of postponed to a date certain. Caucus also previewed an extension of a moratorium on the installation of parking meters in residential neighborhoods.

Design Guidelines Draft: A Work in Progress

The latest draft of the design guidelines document, which is a part of the A2D2 rezoning process, was released by the city on Sept. 30. The specific guidelines themselves seem to be materially the same as those in the Aug. 28 draft, which underpinned the city council’s mid-September joint work session with planning commission and the Downtown Development Authority board. [See previous Chronicle coverage: "Downtown Design Guides: Must vs. Should."] However, the role that those guidelines play in the project review process has changed in the Sept. 30 version as compared to the Aug. 28 draft. To get a clearer picture of how the guidelines’ role has changed since the earliest draft, we’ve excerpted the language in relevant part, dating back two years.

[Oct. 17, 2007 Draft] The Design Review System …
Design Advisory Resource Panel A special panel will be established to provide advice to staff in making design review decisions. The majority of this group shall be design professionals, but it should also include some downtown property owners and community advocates. The panel will meet on an as-needed basis. Since their actions will only be advisory, no formal hearing will be required. All meetings will be open to the public and advance notice will be given in order to give the public an opportunity to attend their meetings. The panel will provide their advice to staff on the interpretation of the design guidelines as needed/requested …

Six months later, the “system” had become a “process.” But the notion of a panel or a board of some kind was retained.

[April 30, 2008 Draft] Design Review Process …
Design Advisory Panel. A special design advisory panel will be established as a resource for the decision-making process. Their role will be advisory only. Staff may draw upon the expertise of this panel for interpreting the design guidelines. Applicants may also request the assistance of the panel as part of the review.

More than a year after that, the “process” had become a discussion of “application” of the guidelines. No notion of a review panel is included in the Aug. 28 draft. But there is a specific requirement that a submitted project include a statement by  developers explaining how their projects meet the goals of the guidelines :

[Aug. 28, 2009 Draft] Application of the Design Guidelines …
Compliance with the design guidelines is voluntary but applications for site plan approval in the D1 and D2 zoning districts must include a Design Guidelines Statement describing how the proposed project relates to the priority guidelines in Chapter 2: General Design Guidelines and any priority guidelines for the relevant character district in Chapter 3: Design Guidelines for Character Districts. Refer to the Land Development regulations within Chapter 57 of the City Code for specific requirements.

Those regulations in Chapter 57 would need to be enacted – there’s nothing currently in the code requiring such a statement.

Considered as a whole document, the  latest version of the guidelines includes some superficial differences – mainly the symbol used to designate high-priority guidelines. It’s been changed from the “Texaco Star” symbol to a tree – which to The Chronicle’s eye appears to be the same tree that appears in the city of Ann Arbor’s seal.

By way of material differences between the Aug. 28 and the Sept. 30 drafts, there is no reference to specific requirements in Chapter 57 of a statement that’s required from a developer:

[Sept. 30, 2009 Draft] Application of the Design Guidelines …
The design guidelines in this document apply to development on all properties within the Downtown Core (D1) and Downtown Interface (D2) zoning districts. For properties that are in a designated historic district, refer to the separate Design Guidelines for Historic Districts. When considering a project downtown, property owners, developers and architects are encouraged to refer to the downtown design guidelines. Compliance with the design guidelines is voluntary.

There is also a checklist included in the appendix to the Sept. 30 draft, but there is no role in the project review process specified for it. So in terms of the scale of voluntary-to-compulsory described at the council’s joint work session by the consultant on the project, the changes in the draft documents correspond to a change from (3) to (1).

1. Completely voluntary: Design guidelines exist as a resource for developers. Developers are free to look at the guidelines or not. They’re free to incorporate the guidelines into their downtown projects or not.
2. Obligatory process, voluntary compliance – a checklist: As a part of the site plan approval process, developers must submit a statement evaluating their project against a checklist of design guidelines. The statement would explain how a project does and does not meet the intent of the design guidelines. Regardless of how the project stacks up based on the developer’s self-evaluation or planning staff’s evaluation and feedback, the developer would not be legally compelled to change the project based on the design guidelines alone.
3. Obligatory process, voluntary compliance – a design review board/panel: As part of the site plan approval process, a design review panel/board reviews the proposal independently of city planning staff with respect to meeting the intent of relevant design guidelines. The panel/board would issue a written opinion of their evaluation, but the developer would not be legally compelled to change the project based on that opinion.
4. Obligatory process, obligatory compliance: As part of the site plan approval process, a design review panel/board reviews the proposal independently of city planning staff with respect to meeting the intent of relevant design guidelines. The panel/board would issue a written opinion of their evaluation and that opinion would be legally binding. Otherwise put, a project could be denied based on a design review board’s assessment.

As previously reported, the direction to the consultant, Winter & Company, to craft the document in a way that presented the guidelines as voluntary came from the A2D2 oversight committee this past summer. The three-member committee consists of Marcia Higgins (city council, Ward 4), Evan Pratt (planning commission), and Roger Hewitt (DDA board).

Residents at caucus pointed out that the Sept. 30 draft had come just a day before the public notice had been published – and the publication of that notice had been in a newspaper some of them didn’t know existed: The Washtnaw Legal News.

Publication of Public Notices

The closing of The Ann Arbor News has had an impact on the city of Ann Arbor’s ability to cost-effectively meet its legal obligations to publish notices, as well as to adequately disseminate the information. The topic has come up recently with great frequency, most recently at the last regular meeting of the city council.

From The Chronicle’s Sept. 21 city council meeting report:

During public commentary on the need to adopt a sense of “diminished astonishment” when trying to follow public events, Jim Mogensen mentioned the fact that the public hearing on City Place had been published in the Detroit Free Press, but not in AnnArbor.com’s print edition.

It’s worth noting that the state statute requires that a newspaper be in publication for a year before it meets the legal requirement for publication of legal notices – so AnnArbor.com, which started publishing in July 2009, doesn’t qualify.

During a break in council’s meeting, city clerk Jackie Beaudry clarified for The Chronicle that from the point of view of cost, the Washtenaw Legal News is the city’s preferred choice, but that sometimes the timing of the once-a-week Legal News publication schedule forces the city to resort to the more expensive Detroit Free Press. Compared to the old Ann Arbor News, Beaudry said, the Free Press notices cost 10 times as much.

It was the Washtenaw Legal News (Oct. 1, 2009 edition) that the city used to publicize the Oct. 5 public hearing on the design guidelines. The Legal News is a weekly publication that comes out on Thursdays. Subscribers, who currently pay $5 per year, receive their copy of the paper in the mail.

One resident at caucus described her frustration visiting the Legal News website, discovering that she needed a subscription to see the content, then having difficulty finding the notices after she subscribed.

Mayor Hieftje acknowledged the challenge now faced by the city in meeting its legal obligations for publication, and suggested that the charter amendments to appear on November’s ballot would address part of that challenge. However, as Sabra Briere (Ward 1) pointed out, the amendments to the charter do not address printing. [The proposed amendments would allow the city to satisfy its legal obligations for publication of ordinances by posting them on its own website.]

One idea floated by a resident at caucus was to recruit the University of Michigan Record and/or the Michigan Daily, which both have printed editions, in the effort to publicize public hearings and the like. The idea involved expanding the distribution area beyond campus.

In the course of the discussion among councilmembers and residents, an important distinction crystallized: Legal obligation versus effective dissemination. Part of the challenge in using the Legal News for effective dissemination of information is related to its weekly publication schedule. City council rules allow changes to its agenda up until the last minute, with recent revisions to those rules only requiring members to use “best efforts” to make such changes by the Friday before a Monday meeting.

Asked at caucus why the council had not enforced more discipline on itself with respect to these rules, Briere said that in her service on the rules committee, for late agenda changes she’d weighed in for language like “emergency” or “rare occurence,” but that she’d been talked out of it. There were, she said, occasions on which the council needed to be able to respond quickly to a situation. The response from the resident who raised the question: The council always has the option of suspending the rules. Briere summed up by saying, “It’s difficult to change people’s mind when life has been convenient.”

For reference, here’s how the State of Michigan defines “newspaper,” which is the source of the city of Ann Arbor’s challenge in meeting its legal obligations as well as serving the public interest.

Michigan Compiled Laws 691.1051: Newspaper; definition; publication of notices.

Sec. 1. The term “newspaper” as used in any statute of this state, except the revised judicature act of 1961 relative to the publication of a notice of any kind, shall be construed to refer only to a newspaper published in the English language for the dissemination of local or transmitted news and intelligence of a general character or for the dissemination of legal news, which

(a) has a bona fide list of paying subscribers or has been published at not less than weekly intervals in the same community without interruption for at least 2 years, and

(b) has been published and of general circulation at not less than weekly intervals without interruption for at least 1 year in the county, township, city, village or district where the notice is required to be published. A newspaper shall not lose eligibility for interruption of continuous publication because of acts of God, labor disputes or because of military service of the publisher for a period of not to exceed 2 years and provided publication is resumed within 6 months following the termination of such military service,

(c) annually averages at least 25% news and editorial content per issue. The term “news and editorial content” for the purpose of this section means any printed matter other than advertising.

If no newspaper so qualifies in the county where the court is situated, the term “newspaper” shall include any newspaper in an adjoining county which by this act is qualified to publish notice of actions commenced therein.

Zoning Code Overhaul

Residents asked the caucusing councilmembers to provide some clarity on a resolution to approve $122,480 for a contract with the consulting firm Clarion Associates to review the city’s zoning code. Sabra Briere (Ward 1) explained that there was money in the city attorney’s budget to reorganize the city’s zoning ordinances to make them more compatible with each other.

After caucus, Briere cited for The Chronicle as an example of problems with compatibility various wetlands regulations, which had arisen during the contentious approval process for the 42 North development. [Briere voted against the project when it was brought forward as a matter of right proposal, based in part on the interpretation of wetlands rules.]

Briere clarified that the work to be done by Clarion is not the A2D2 process and does not involve the substance of the code. She said that for her, given the cost, the question about the need to resolve conflicting language was this: Is this the year to do it?

Here’s the rationale for the legal work to be done by Clarion, taken from the administrative memo accompanying the resolution:

The current zoning and development ordinances have many issues that make it difficult to use. The issues can be summarized as: 1) the overall organization structure is cumbersome and it can be challenging to find code sections; 2) related standards are often contained in different code sections and can be difficult to navigate; 3) a lack of clarity in code language makes the code difficult to interpret; 4) there are some ordinance gaps and provisions that are out-of-date or may have minor inconsistencies with state law, and 5) the use of terms is inconsistent.

The professional services agreement with Clarion Associates is for consulting services to reorganize eleven different chapters of the Ann Arbor City Code and to address the identified issues to produce an integrated, internally consistent and user-friendly version that is: 1) comprehensive – to eliminate cross referencing between code sections to determine standards governing development and redevelopment; 2) clear and internally consistent; 3) usable, both internally by staff and externally by the public; 4) enforceable and legally defensible based on objective standards and Michigan enabling laws; and 5) adaptable and structured to make it easy to amend or to add/ delete provisions in the future.

Material changes to the code will not be addressed in this project. This effort will focus on the development of a solid framework so that future code changes – both technical and substantive – can be more easily incorporated. Material code changes will be undertaken as a rewrite of zoning standards following the development of the City of Ann Arbor Master Plan: Land Use Element, Phase II: Update Land Use Recommendations, a three-year process scheduled to begin in 2010. Material code changes that may surface as part of this effort will be collected in a “Suggestions for Future Changes” document for use as a part of the future zoning rewrite effort.

Toy Guns

At the council’s Sept. 8 meeting, a second reading was heard of an ordinance that would allow enforcement of prohibitions against so-called look-alike weapons. Sabra Briere (Ward 1) had raised questions about the adequacy of the language in the ordinance. [See Chronicle coverage: "City Council Begins Transition."] For that meeting, the city attorney’s office had asked that the resolution be tabled so that the language could be rewritten.

The council voted to postpone the resolution – until Oct. 5. As Briere clarified at caucus, the attorney’s office had actually wanted a tabling of the resolution (with no date fixed). No changes have been made to the language in the interim. As a consequence, explained Briere,  the request from the attorney’s office is again to table the resolution so that adequate time can be put into reworking the language.

Based on her deliberations at the Sept. 8 meeting, Marcia Higgins (Ward 2) might float the idea of simply voting down the ordinance, instead of tabling it, and letting it come back clean, thus eliminating the need to track changes from one version to the next.