Mandatory Process Likely for Design Guides

Ann Arbor City Council meeting (Oct. 5, 2009): State Rep. Rebekah Warren (D-District 53) addressed the city council at the start of the meeting, bringing the council up to date on the state budget that had passed, but which she’d voted against. Over the next year, there will be $1.16 million less in  revenue sharing paid to the city of Ann Arbor, starting with an October check that will be around $200,000 less than last year. This outcome is on the optimistic end of the projected range provided to the city council several weeks ago by Tom Crawford, the city’s chief financial officer.

Before the public hearing began on the proposed new building design guidelines for downtown, Mayor John Hieftje indicated his and other councilmembers’ strong preference for a set of guidelines that were integrated into a required process as a part of a project review. So the several members of the public who spoke on the issue knew there was support on council for their view.

And University of Michigan student life was a part of the meeting in several ways – seen and unseen. The seen part included students who spoke against recent increased ordinance enforcement activity in the Hoover Street area on homecoming weekend. They announced a protest march.

The unseen part included an item stricken from the agenda that would have allowed the city to generate revenue from parking cars in Frisinger Park on home football Saturdays. And it included a closed session on a lawsuit stemming from the tasering of a UM student by Ann Arbor police in 2005. The incident arose out of the student’s arrest for having an open container of alcohol. A recent opinion from the U.S. District Court (Eastern Division) on a motion from the city for summary judgment found that the police officer was entitled to qualified immunity on the first application of the taser, but not on the second.

State of Michigan Budget

At its Sept. 21 meeting, the city council had passed a resolution opposing the proposed state budget, and asking Ann Arbor’s state legislative contingent to outline their positions:

BE IT FURTHER RESOLVED, That the Ann Arbor City Council urges Senator Brater, Representative Byrnes, and Representative Warren to provide the City Council with a written summary of their position on the Dillon-Republican budget proposal.

So on Monday night, Rep. Rebekah Warren, who represents District 53, which includes most of Ann Arbor, appeared at council to explain that she’d voted against the state budget, which included cuts in arts and educations funding, as well as reductions in state shared revenue – payments the state makes to municipalities like Ann Arbor. [The payments, which are funded by the state sales tax, are intended to some extent compensate individual municipalities for their restricted ability to levy additional taxes to increase revenue.]

The bad news: The state budget reduces the amount of statutory revenue sharing to Ann Arbor by about $850,000, which together with a $310,000 drop in constitutional revenue sharing means $1.16 million less for Ann Arbor, starting with the state’s fiscal year in October. The payments, which Warren explained come from the state in even-numbered months, will be $200,000 less, starting now.

Why it’s not worse news: The $1.16 million reduction in state shared revenues is actually on the optimistic end of the range forecast by CFO Tom Crawford in his presentation to the city council at its Aug. 6 meeting. [Coverage of that meeting: "Also: Ann Arbor CFO gives bleak report."] From our account of that meeting:

In 2002 the city of Ann Arbor received $6.2 million in statutory state shared revenue and $7.5 million in constitutional state shared revenue. In FY 2009 those totals had changed to $2.9 million and $7.9 million, respectively – roughly a $3 million decrease since 2002.

Projections on which the adopted FY 2010 budget were based saw state shared revenue levels as flat compared to last year. Based on the actual 8% drop in sales tax collections, plus a pessimistic assessment of likely action by the state legislature to address its own budget, Crawford is now projecting $1 million to $1.9 million less [emphasis added] in state shared revenue in FY 2010.

Added with $1 million less than projected in investment income, $0.2 million less in traffic citations, and $0.2 million less in development review fees, Crawford sketched a picture for councilmembers of a $2.4 million to $3.3 million shortfall for FY 2010, which is the current budget year.

The $1.16 million hit leaves FY 2010 with “only” about a $2.5 million shortfall.

Again, why it’s not worse news: Warren reported that the fire protection grant that the city receives from the state to provide fire protection for state-owned facilities would not be cut. [The grant itself is generally acknowledged to be underfunded.]

Warren, for her part, said she felt that the state legislature had “the responsibility and the tools” to provide the necessary funding. She noted that the state’s budget was dramatically lower than the Headlee cap – the state could, by law, collect $9 billion more in taxes than it does. She suggested that an overhaul of the state’s tax system was in order.

She did indicate that the legislature had passed a supplemental spending bill that would restore funding for some areas that had been cut, including state revenue sharing. However, as Leigh Greden (Ward 3) drew out, there is not any cash behind the supplemental bill. That is, the bill is an expression of intent. So when Carsten Hohnke (Ward 5) sought to pin down whether or not Ann Arbor’s state revenue share could be restored in the next couple of days through some dramatic action, the answer was no.

Downtown Building Design Guidelines

A public hearing, but no vote, was scheduled on the design guidelines for new downtown buildings. The guidelines are proposed in connection with the A2D2 rezoning process. In his communications to council, Mayor John Hieftje indicated that when he and former Ward 1 councilmember Bob Johnson had originally supported the concept of design guidelines – prompted partly by a trip to Boulder, which has a mandatory process with voluntary compliance – they had always imagined a mandatory process and a design review board.

Hieftje said that he’d spoken with Marcia Higgins (Ward 4), who could not attend the council’s meeting due to illness, as well as with other councilmembers, and that there was a consensus that such a mandatory process with a review board should be added to the document. [Higgins, along with Evan Pratt from the planning commission and Roger Hewitt of the Downtown Development Authority board, constitute the A2D2 oversight committee.] As a result, Hieftje said, the vote on the design guidelines, which had originally been planned for Oct. 19, would be moved to Nov. 5, with the public hearing for the evening left open through Nov. 5.

In response to a question raised at the previous night’s caucus about why the mandatory review process had been gradually deleted from the document in the course of different drafts dating back to 2007, Hieftje said that he did not know. [Coverage of the previous night's caucus: "Another Draft of Downtown Design Guides." Coverage of a joint work session, which includes the fact that direction to the consultant to construe the design guidelines as voluntary in their draft came in a conference call held over the summer with the A2D2 oversight committee and the consultant: "Design Guides: Must vs. Should."]

Because the public hearing will be left open, the several speakers who chose to address council on the topic of design guidelines will not be able to speak again when it resumes on Nov. 5.

More than a dozen residents spoke at Monday’s part of the hearing. Many of them focused on the issue of a mandatory versus voluntary process. Speakers wanted to see “guidelines with teeth.”

John Floyd allowed that he understood why someone might object to an “aesthetics police” and that it’s “obnoxious to say that my judgment is better than yours,” but suggested that if the city was going to have guidelines at all, why not have them with teeth. He asked councilmembers to provide a description of the benefits of having guidelines that are merely voluntary.

Christine Crockett, who introduced herself as the only member of the original A2D2 design guidelines committee, described how disappointed they’d been to see the mandatory process written out of the proposal. A bit of humor was provided when she was followed to the podium by Eric Lipson, a former planning commissioner who’d also served on the committee with Crockett. “Sorry!” Crockett exclaimed. Lipson pointed out that he’d been hidden from her view behind a brick column.

In addition to the mandatory-versus-voluntary issue, speakers addressed other aspects of the proposal. Alan Haber alluded to a lecture given by Peter Calthorpe, in which he said that planning always comes down to politics. Haber asked to what extent the design guidelines supported non-economic transactions – those based on communication and creativity.

Peter Pollack stressed that the document would be read by at least three different audiences: (i) neighborhood groups, (ii) developers, and (iii) city officials. The language – down to specific phrases like “human scale” – needed to be evaluated from the perspective of each of those groups, he said.

Zoning Structure Overhaul

Also related to the design guidelines in a tangential way was a resolution considered by the council to approve $122,480 for a contract with the consulting firm Clarion Associates to review the city’s zoning codes and land use regulations to make them unified and more efficient to deal with.

In response to a query from Sandi Smith (Ward 1), city attorney Stephen Postema explained that the work to be done by Clarion could proceed simultaneously with various other zoning initiatives like A2D2, the Area Height and Placement project and the R4C review. That’s because the effort to make all the various codes compatible will not, Postema said, change zoning policies themselves. The idea is to put a structure in place. City administrator Roger Fraser also stressed that zoning policies would not change as a result of Clarion’s work.

Christopher Taylor (Ward 3) clarified with Postema that the decision to hire outside expertise was not a function of a lack of expertise in the city attorney’s office, but rather a lack of adequate time to tackle the project.

Clarion has offices in Colorado, Florida, Illinois, North Carolina, Ohio, and Pennsylvania. Possibly to address a question raised at the previous night’s caucus by a resident about why an out-of-state firm was hired for the work, Postema explained that Clarion was the firm that senior assistant city attorney Kevin McDonald had identified. [The work was not put out for a bid.]

Outcome: The council voted unanimously to approve the $122,480 expenditure to review all of the city’s zoning and land use regulations.

University of Michigan Student Culture

There was a heavy UM student presence in council chambers. Three students spoke about an increased focus by the city of Ann Arbor on football game day parties, specifically in the area of Hoover and State streets. [Coverage by the Michigan Daily: "City Attorney's Office threatens BOX House, other State Street tailgates."]

Public Comment on Tailgating

Joey Juanico: Juanico introduced himself as a UM junior, who objected to the increased attention on enforcement of city ordinances in the Hoover and State street areas, which threatened to “destroy the culture” of tailgating. That increased attention had been reflected in a letter sent to residents in the area by Kristin Larcom, of the city attorney’s office. That culture, he said, was about community and friendship. He announced that he’d organized a protest march for Oct. 16 that would lead from the UM president’s house to Ann Arbor city hall. The protest, he said, was to defend students’ right to partake in a tradition. He punctuated his turn at the podium with “Go Blue!”

[For readers unfamiliar with the connection between Kristin Larcom's name and the name of the building that houses Ann Arbor's city hall: She is married to Geoff Larcom, former Ann Arbor News editor/writer, whose father was Guy Larcom, the former city administrator after whom the building was named.]

Abhishek Mahanti: Mahanti is president of the Michigan Student Assembly. He raised concerns about an apparent change in policy regarding parties in the State Street area. But he conveyed a willingness on the part of the student community to be cooperative: “We’re all ears to working together to be moderate about it.”

Aaron Miller: Miller is the new UM student liaison to the Ann Arbor city council, having been appointed last week by the Michigan Student Assembly. Miller said that he’d be attending council meetings and would talk to councilmembers individually about concerns of students. He said he’d also be there to listen to concerns in the Ann Arbor community about the campus community.

Council Comment on Tailgating

During his communications to his colleagues, Stephen Rapundalo (Ward 2) took the opportunity to respond to some of the sentiments expressed by the student speakers during public commentary, in particular the “supposed tailgate ban.” He wanted to set the record straight, he said. There was no ban on tailgating and there was no policy change. Rather, he continued, the city had identified some acute public safety issues involving some “quite worrisome” behavior, and was consequently using existing regulations (e.g., on noise) to address those safety issues. The city, he concluded, had no intention of bringing the tailgating tradition to a stop.

Closed Session on Pending Litigation

At the conclusion of the council’s meeting councilmembers went into closed session to discuss legal strategy in a lawsuit that is tangentially related to some of the tailgating issues mentioned by speakers during public commentary.

The  lawsuit stems from an incident dating back to Sept. 1, 2005, which began with Ann Arbor police officers identifying a student, Daniel Perach, who was holding a red plastic cup filled with fruit juice and vodka. The incident involved a foot chase, and ended with Ann Arbor police officer Craig Lee twice using a taser on Perach in order to effect Perach’s arrest.

In a Sept. 30, 2009 ruling by the U.S. District Court (Eastern Division) on a motion from the city of Ann Arbor for summary judgment, the court found that the police officer was entitled to qualified immunity on the first application of the taser, but not on the second.

Relevant documents [.PDF files]:

• Initial Complaint
• City Response to Complaint
• City Motion for Summary Judgement
• Court Ruling on Summary Judgement

The suit was originally filed on Sept. 1, 2008. It claimed that:

10. The actions of Defendant in deploying his taser and intentionally striking Plaintiff caused Plaintiff great pain and injuries about his body.

11. By using unnecessary and brutal force to restrain Plaintiff where there was no legal basis to do such, the Defendant’s actions were objectively unreasonable and violated Plaintiff’s Fourth and Fourteenth Amendment rights to the United States Constitution.

12. The Defendant does not have qualified immunity for his illegal actions as any reasonable person or police officer should have known that such actions were objectively unreasonable.

The suit asked for $150,000 in damages.

In asking for a summary judgment, the city had argued that the force used by Lee to stop Perach from fleeing – from Lee and other officers – and to overcome Perach’s resistance to efforts to handcuff him were “objectively reasonable,” and thus did not constitute excessive force, nor did it violate clearly established law. The city also argued that Perach’s “no contest” plea to resisting arrest prevented him from claiming that Lee had used excessive force by employing his taser in order to keep Perach from fleeing and in order that he could be handcuffed – because it was Perach’s attempts to flee and to resist handcuffing that had led to Perach being charged with resisting arrest.

But in its Sept. 30 ruling on the summary judgment motion, the court found that:

… Perach’s plea of no contest to the resisting arrest charge does not prohibit the continuation of his claims under Section 1983 action for excessive force against Lee.

The Court also holds that Lee’s first taser deployment (1) was an unconstitutional use of excessive force, but (2) did not violate a clearly established right. Hence, Lee is entitled to qualified immunity on this issue.

As to the issue relating to the application of the second taser, the Court concludes that this act of law enforcement constituted a use of excessive force which was in violation of the clearly established right of Perach who has proffered sufficient evidence to establish that Lee’s conduct was objectively unreasonable. Thus, Lee’s request for qualified immunity on this issue is denied.

In the court’s view, then, the second taser deployment is a matter for a jury to decide.

The court’s analysis cites Ann Arbor police department policy on deployment of a taser, which is not to use a taser in the manner that Lee did:

The memorandum, written by Sergeant Baird, stated that “the Taser is not generally intended to be used as a tool to apprehend someone that is attempting to escape by running away” and that “[w]hen deciding to use the device in this manner the main consideration upon the officer is the severity of the crime they are wanted for” (emphasis in original). In addressing Perach’s arrest, Baird also wrote that “[i]n this case the suspect was wanted for a code violation only. Using the device in this manner is inappropriate.”

In light of the summary judgment ruling, the city of Ann Arbor can (i) appeal the ruling on the summary judgment to the 6th Circuit Court, (ii) go to trial, or (iii) attempt a settlement.

Based on the motion considered by the city council after it came out of its closed session, during the closed session the city attorney had presented his preferred course of action and asked council to support it.

Outcome: The council voted unanimously to authorize the city attorney’s office to pursue his recommended course of action.

Parking on Football Saturdays: Frisinger Park?

Placed on the agenda on Oct. 2, with sponsorship from Sandi Smith (Ward 1), Sabra Briere (Ward 1), Carsten Hohnke (Ward 5), and Mike Anglin (Ward 5), was a resolution that would have allowed the city to generate revenue from parking cars in Frisinger Park on home football Saturdays. Frisinger Park is just south of East Stadium Boulevard between Woodbury and Iroquois. It was pulled off the agenda on Oct. 5.

Here’s how the resolution read:

Whereas, Frisinger Park is well situated to provide special event parking, in particular for University of Michigan home football games; and

Whereas, The City is providing home football game parking at other City-owned facilities, including its facility on S. Industrial and these parking revenues are a new source of funds for the City which is striving to maintain high quality level of service for its citizens;

Resolved, That the City Administrator establish a parking program for University of Michigan home football days at Frisinger Park, including the option for pre-game/post-game tailgating.

The football parking proposal was an idea that came in the “turning over every stone” approach that Sandi Smith (Ward 1) has been taking to find a way to generate the revenue that would go missing if parking meters are not installed in certain neighborhoods near downtown, which is an assumption currently built into the budget for FY 2010 passed by city council.

In deliberations about the extension of the moratorium on installation of parking meters in neighborhoods near downtown – which came later in the meeting – Margie Teall (Ward 4) gave perhaps some insight into why the Frisinger Park parking resolution had been pulled from the agenda. She said she would simply not support football parking in Frisinger Park. The park is located in Ward 4, which she represents.

Moratorium on Parking Meter Installation

Back when the FY 2010 budget was first introduced with a proposal for installation of parking meters on service drives, it was quickly changed to a proposal for meters in neighborhoods near downtown. Sandi Smith (Ward 1), with support from Sabra Briere (Ward 1), Carsten Hohnke (Ward 5), and Mike Anglin (Ward 5), has adopted the project of finding additional revenues to offset the estimated $380,000 that would come from not installing meters as planned near certain neighborhoods downtown.

Part of the strategy to avoid installation of parking meters has been to buy some time by enacting, at the council’s June 15, 2009 meeting, a moratorium on installation in some areas.

During public commentary reserved time at the start of the council meeting, Bob Snyder and Ray Detter both spoke in support of the moratorium.

Pressed by Margie Teall (Ward 4) to describe some of the revenue streams identified so far that would replace revenues otherwise generated by the parking meters, Smith pointed to the restructuring of fees for the surface parking lot at 415 W. Washington [also passed at council's June 15 meeting] plus the agreement with the Downtown Development Authority about where those proceeds go.

Extending enforcement of existing meters downtown past 6 p.m. was also a possibility, Smith said, but that would require negotiations with the DDA, via the “mutually beneficial” committee, which includes members of city council and the DDA board.

Stephen Rapundalo (Ward 2) gave his support to the moratorium, but cautioned against exploring budget solutions outside the discussion within the budget and labor committee.

Outcome: The council voted unanimously to approve the resolution extending the moratorium on installation of parking meters until the council’s second meeting in December.

Sign Board Task Force

The council considered a resolution to create a task force to evaluate the placement of sandwich boards on downtown sidewalks and to explore the possibility of assessing a fee for their placement, handling the signs in a way that’s similar to how sidewalk cafe chairs and tables are regulated. Right now, said Sandi Smith (Ward 1), the signs are “a little bit haphazard.”

It’s part of the effort to find additional revenue so that parking meters won’t need to be installed in neighborhoods near downtown. Smith easily won support for the idea for adding a member of the sign board of appeals and a member from the commission on disabilities. The sandwich board task force, she said, was expected to be short-lived.

Outcome: The council voted unanimously to establish a task force to look at regulation of sign boards.

Sylvan Pavement

Pulled out of the consent agenda for individual consideration by the council was an expenditure for $54,271 to pay for engineering services (from Fishbeck, Thompson, Carr & Huber, Inc.) connected to the Sylvan Avenue permeable pavement project. Permeable pavement allows storm water to filter straight through the surface. The surface parking lot where the old YMCA building stood at Fifth Avenue and William is paved with permeable pavement.

Sylvan is a short one-block-long street running east-west, nestled into the upside down”V” formed by State and Packard streets, near Yost Ice Arena. Nick Hutchinson, who’s a civil engineer with the city, fielded questions from Margie Teall (Ward 4) in whose ward Sylvan Avenue is located.

The reason Sylvan was chosen, he said, was that it had suitable soil underneath, it was flat, and there were existing drainage problems. He was asked first by Teall about maintenance, a question that was followed up with a specific question from Mayor John Hieftje about the possible need to vacuum the pavement to maintain its permeable properties. Hutchinson explained that it was more a matter of running a street sweeper an extra time per year over the street as opposed to vacuuming it. He also noted that during the winter, no sand – just salt – should be spread on the street.

The extra cost of permeable pavement, he explained, came mostly from the extra cost of the asphalt itself, not from the street reconstruction activity. So the extra cost for this project, he said, was not significant, given the 800-foot length and narrowness of the street.

The project should be finished, Hutchinson said, in spring 2010.

Outcome: The council voted unanimously to approve the resolution authorizing the expenditure for porous pavement installation on Sylvan Street.

Other Public Comment

Henry Herskovitz: Herskovitz began by suggesting that Israel, which is generally characterized as a U.S. ally with common cultural threads, has some important cultural differences. In the U.S., he said, all men and women are created equal, but in Israel, all men and women are not created equal unless they’re Jewish. Noting that if he argued that the non-Jews on the Ann Arbor city council could not become Israeli citizens, the argument would not be compelling: the non-Jews on the city council likely preferred to live in Michigan, anyway. So he sketched out a hypothetical scenario, in which the Jews of Cleveland, Ohio, decided to try to make Ward 2, with Burns Park, a Jewish ward. To achieve that goal, he asked councilmembers to contemplate that they killed some non-Jewish families there, and forced the remaining non-Jewish families to seek refuge in Wards 1, 3, 4 and 5. Thinking about the issue of Palestine from that point of view, Herskovitz suggested, might enable councilmembers to understand Palestinian issues.

Thomas Partridge: Partridge introduced himself as a Washtenaw County Democrat. He continued to come to meetings like this, he said, as he’s done throughout his life, to influence people to take responsibility to protect those who most need and deserve protection. He commended Rep. Rebekah Warren for her efforts [she spoke to the council on the budget at the start of the meeting] and challenged the city council to protect the most vulnerable in society.

Other Public Comment: Development Issues

Alan Haber: Haber sketched out some possibilities for use of the surface on top of the underground parking garage, for which ground was broken last week. He argued for the space to remain owned by the public as a gathering space, a mixed-use, many-use, flexible-use, garden, stage – a tourist attraction for those who come to discover downtown Ann Arbor.

Haber alerted interested residents to a meeting on Oct. 11, from 10 a.m. to noon at 310 S. Ashley to work on a proposal for the new downtown public space on top of the library lot.

John Etter: Etter introduced himself as representing the Sloan Plaza Condominium Association. He couched his remarks on development in terms of earning and keeping the public trust. The councilmembers had gained sufficient trust, he said, to win election to that body. But he contended that they would lose that trust if input from citizens did not affect their decision-making. In the case of Sloan Plaza residents, they’d made the case, he said, that a D2 zoning designation was more suitable for Huron Street than D1 – D1 is core downtown, while D2 is transition. Alluding to the city’s contention that MDOT’s Lansing office had given the D1 zoning a green light, Etter concluded by saying that if the matter gets to another forum, evidence of that approval would have to be produced.

James D’Amour: D’Amour is a former planning commissioner. Referring to the “by right” City Place project, which the council had approved at its last meeting, he contended that there was no such thing as a “by right” project. He maintained that if a project had a detrimental effect on public safety, health and welfare, that the project could be turned down. “Staff’s hands are tied,” he said, “but yours are not.”

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 had 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. The request from the attorney’s office is again to table the resolution so that adequate time can be put into reworking the language.

Outcome: The council voted unanimously to table the resolution.

Work Session

In his communications to council, city administrator Roger Fraser advised councilmembers that there would be a work session the following week, Monday, Oct. 12, starting at 7 p.m. [confirm date] to address three main topics:

• Downtown BIZ (Business Improvement Zone)
• The Fuller Road Station [formerly known as FITS]
• Single-stream recycling

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

Absent: Marcia Higgins.

Next council meeting: Monday, Oct. 19, 2009 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]