Zoning, Design Guides on Council’s Agenda

Ann Arbor City Council Sunday Caucus (Nov. 15, 2009): Around two dozen residents came to city council chambers Sunday night to convey their thoughts on two major planning issues on the city council’s agenda for Monday.

The downtown zoning ordinance package – known as A2D2, which the council has approved on two prior occasions at a “first reading” – will be given a public hearing, with a vote also scheduled for Monday night. In addition, the downtown design guidelines will have its public hearing continued, which started on Oct. 5. No vote on design guidelines is scheduled for Monday.

Also receiving discussion at caucus were the six projects that were submitted before last Friday’s Nov. 13 deadline, in response to the city’s request for proposals to use the space on top of the Fifth Avenue underground parking garage.

Also the council’s agenda, but not receiving discussion among councilmembers who attended the caucus, is the council’s formal acceptance of the Huron River and Impoundment Management Plan (HRIMP) from the city’s environmental commission – but not the plan’s recommendations related to Argo Dam.

And a consent agenda item that requests funds to purchase additional electronic parking meter equipment contains in its description a plan to install meters in new areas that have not been previously identified.

Finally, there’s a whole new category of item on Monday’s agenda – a category that raises questions.

Councilmembers attending the caucus were Mayor John Hieftje, Sabra Briere (Ward 1), Mike Anglin (Ward 5) and Stephen Kunselman (Ward 3).

Design Guidelines

Prior community-wide discussion on proposed design guidelines for Ann Arbor’s downtown has focused on the lack of a mandatory process into which the guidelines would be integrated. [Previous Chronicle coverage: "Downtown Design Guides: Must vs. Should" and "Mandatory Process Likely for Design Guides"]

At Sunday’s caucus, the councilmembers who were present heard from representatives of a citizen volunteer group that has been meeting and going through the proposed design guidelines. Overall, their message was that more time was needed to get the guidelines right: “There’s no reason to hurry this. It’s too important to hurry,” one resident said.

Among the specific areas needing focus, they said, were the following:

• Coordination between new zoning codes, design guidelines and the Downtown Plan.
• Specification of a design review process; the city’s new public participation ordinance helps define a “schedule” for a project approval process – where does the design review process fit into this schedule?
• Elimination of the checklist, because “checking all the boxes doesn’t mean good design.”
• Context of new construction in terms of respecting surrounding buildings.
• Use of example projects on which to test-run the guidelines before they’re formally adopted.
• Use of premiums for additional floor area ratios (i.e., taller buildings) only when a project is approved by a design review panel; this would be a way to leverage compliance.
• Improvement of photographs and graphics in the design guidelines document.
• Sustainability should be included in the design guidelines document not just in the context of new buildings, but also in the context of rehabbing older buildings.
• Character districts are not completely articulated and in some cases seem rather “open ended.”

Another area of concern was the need to clarify language so that the the meaning would be clear to three distinct groups of readers of the document: the general public, developers, and members of the design guideline panel.

Sabra Briere (Ward 1) was intrigued by the idea of using compliance with design guidelines as a condition on granting premiums – but had questions about how the ordinance language would be crafted to achieve that goal. She also wondered, as a  practical matter, how a developer might deal with the need to provide a design that assumed premiums, when the developer could not know in advance that the design would meet with the approval of a design guidelines review panel.

The composition of such a design review panel was suggested by one representative of the volunteer group to have five members: one member of the public, an architect, an urban planner, a specialist in historic preservation, and a real estate developer. The number of people on the review panel was not an area of complete consensus among the volunteer group, with one alternative having two representatives from each professional category, for a total of 10 or more people.

There was, however, a consensus that the members of such a design review panel should not also be members of other development-related boards and commissions in the city, e.g., the planning commission or the Downtown Development Authority.

Mayor John Hieftje raised the question of whether sufficient numbers of such professionals could be found who’d be willing to serve on a design review panel, and if so, whether they would find themselves with frequent conflicts of interest when projects they were working on came before the panel for review.

A2D2 Zoning

During discussion at the Sunday caucus, much of the history of the A2D2 was drawn out.

The A2D2 rezoning initiative was meant to simplify Ann Arbor’s downtown zoning code by reducing multiple zoning districts into something easier for city staff, developers, and the public to grasp. In broad strokes, the outcome of the A2D2 process was the establishment of two zoning districts for the downtown: D1 (core) and D2 (interface). One key defining feature of D1 is its 180-foot height limit, as contrasted with a maximum of 60 feet in D2. That D1 height limit applies across all D1 areas except for a swatch along East Huron and in the South University area, where the height limit for D1 is 150 feet.

For the South University area, the planning commission had originally envisioned all of South University as a D1 area and passed along that recommendation to the city council. The city council saw things differently, and carved out roughly half the South University area as D2. That meant that the council could not accept the planning commission’s proposed Downtown Plan, which specified all of South University as “core.”

But unlike zoning code, over which the city council has the final decision, the Downtown Plan requires agreement between the planning commission and the city council – on master planning documents, the planning commission has equal standing with the council.

The outcome of that interplay between the city council and the planning commission was a greatly reduced D2 area in South University, compared to what the city council had wanted. Council’s amendment to its originally passed A2D2 zoning – with its large D2 area in South University – was substantial enough that the ordinance had to be brought back again for a “first reading.” [All ordinances are heard by the city council at a "first reading" and a "second reading," before a vote is taken.] Here’s a more detailed chronology:

• April 4, 2009: City council passes A2D2 Zoning “first reading” – version with South University larger D2.
• April 20, 2009: City council refers Downtown Plan back to the planning commission [Useful backround in previous Chronicle coverage: "What's Your Downtown Plan?"]
• May 19, 2009: Planning  commission revised slightly different Downtown Plan with smaller D2 in South University.
• June 15, 2009: City council accepts revised Downtown Plan with smaller D2 in South University.
• July 6, 2009: City council postpones A2D2 Zoning “first reading” – version accepting smaller D2 in South University.
• July 20, 2009: City council again postpones A2D2 Zoning “first reading” – version accepting smaller D2 in South University.
• Sept 9, 2009: City council passes A2D2 Zoning “first reading” – version accepting smaller D2 in South University.
• Nov. 16, 2009: City council’s agenda includes A2D2 Zoning “second reading” – version accepting smaller D2 in South University.

Some of the discussion at caucus centered on the question of how rezoning affected property values. Hieftje allowed that it was important to remember when rezoning, the city is rezoning property that is owned by people.

One resident focused on the block that includes the First Methodist and First Baptist churches downtown – bounded by Huron, State, Washington, and Division streets. She observed that the new construction at the corner of Washington and Division [411 Lofts] would already violate D2 zoning if it were to be zoned that way, but wondered if it was possible “to grandfather it in.” Stephen Kunselman (Ward 3) explained that it was possible, and that it would simply be a “non-conforming use.”

Another resident wondered why it was not possible to “down-zone” when it was clearly possible to “up-zone.” Sabra Briere (Ward 1) said that from a legal point of view, it was always easier to give than to take.

That led to a discussion of the fact that by up-zoning a parcel, there could be a kind of “taking” from the owners of smaller residential properties adjacent to the up-zoned parcels.

Underground Parking Garage: What Goes on Top?

A topic on several residents’ minds was the request for proposals the city had made for use of the area on top of the underground parking garage currently beginning constructed on the lot along Fifth Avenue, next to the library. The deadline for submission of proposals was last Friday, Nov. 13. The city has received six different proposals.

One sentiment expressed at Sunday’s caucus was that all six should receive interviews, given that it was a relatively small number. It falls to the selection committee to determine which proposals are to advance to the interview stage, but on Sunday, Mayor John Hieftje stressed that the city council could determine to hear whatever proposals it wanted.

The selection committee consists of Stephen Rapundalo (Ward 2), Margie Teall (Ward 4), Eric Mahler (planning commission), John Splitt (DDA board), and Scott Rosencrans (Park Advisory Commission).

At caucus, there was support for inclusion of a proposal for a community commons, which was one of the six submitted. In response to the suggestion that there was not adequate open space downtown, Hieftje pointed to the University of Michigan Diag, West Park, the Arboretum, and Liberty Plaza, which he said needed to be redesigned to be all on one level.

Hieftje also pointed out that the city was planning to build a greenway, and that the surface parking lot at First & William had been designated for future use as a park in that greenway corridor. What had been common to the majority of parkland additions to the city’s park system in the time he’d been in office, said Hieftje, was that they were natural areas.  Natural areas, he continued, posed lower costs for security and for maintenance than urban parks.

Referencing the development of the top of the underground parking garage, Stephen Kunselman (Ward 3) cautioned against speculative development, saying that there’d been two examples of less-than-successful attempts: Tally Hall and William Street Station. The former developer of William Street Station, which would have been located on the site of the old YMCA at the northwest corner of Fifth and William, has filed a lawsuit against the city over the city’s cancellation of the project.

Kunselman suggested exploring public-public partnerships, saying it made more sense to think of putting the new library on top of the parking structure, then simply selling the old library parcel and the old YMCA lot. [The library board had planned to build a new library on the site of its current downtown building at the northeast corner of Fifth and William, but called off the project late last year, citing the poor economy.]

After caucus, Kunselman pointed out to The Chronicle that the public-public involved with putting a new library on top of the parking structure would be a four-way partnership: the city of Ann Arbor, the DDA, the Ann Arbor District Library, and the Ann Arbor Public Schools. AAPS still holds its board meetings at the library, and there’s a historical relationship between the library and the school system, dating back to when the library system was actually a part of the school system.

A possible different approach to the RFP process the city had undertaken with the top of the underground parking garage, suggested Kunselman, would be to sell the air rights to a developer, with that developer then able to bring a project forward in a standard site-plan review process. In order to get the open space the city wanted, deed restrictions could be placed on the sale of such air rights.

Cell Phones

One resident at caucus wanted to know what happened to a proposed cell phone ordinance that had been mentioned at a previous council meeting. Mayor John Hieftje said that Stephen Rapundalo (Ward 2) was still working on it. [At the council's Aug. 6 meeting, Rapundalo indicated that he and Tony Derezinski (Ward 2) had asked the city attorney's office to draft an ordinance to prohibit cell phone usage and texting while driving, and they expected it to come before council at its Aug. 17 meeting. It didn't come forward then.]

Single Stream Recycling

A question was raised about the investment being made in single-stream recycling infrastructure: Was a $0.5 million investment worth it during this economic time, when the payback period could be seven years? Mayor John Hieftje pointed out that there was more being invested than $.05 $0.5 million. Discussion of the dollar amounts clarified that in any case it was not general fund money being invested. [At its Nov. 5 meeting, council approved roughly $3.35 million related to the program. See previous Chronicle coverage: "Council OKs Recycling, Transit, Shelter"]

HRIMP: Dam-in/Dam-out

Also on the council’s agenda is its formal acceptance of the Huron River Impoundment and Managment Plan. That report contains 32 recommendations – the resolution to be considered by council will accept 30. The two recommendations that the resolution leaves out are those that say the dam should be removed or kept in place. The HRIMP committee could not reach a consensus on the dam-in/dam-out question, and included both recommendations in its final report, which was completed in the spring of 2009.

Acceptance of the HRIMP could set the stage for the city council to contemplate making a dam-in/dam-out decision, or if not, then at least to consider a previous resolution to repair the toe drains in the earthen embankment along the headrace. That resolution had been tabled at the council’s Oct. 19, 2009 meeting. [Chronicle coverage of that meeting: "Still No Dam Decision"]

Parking Meters

An item on council’s consent agenda for Monday will appropriate up to $87,000 for purchase of electronic parking meters for the Wall Street area. This is an area that was identified as a place where additional parking meters could be installed to generate additional revenue, and which the city council approved as a part of the FY 2010 budget.

The supporting memo on the agenda item indicates that city staff overestimated the number of meters that could be installed in the area, which means that revenue projections associated with the FY 2010 budget would not be met. The memo indicates that other areas have been identified for meter installation to make up for the shortfall [emphasis added]:

On June 15, 2009, City Council approved the installation of parking meter equipment in various locations within the city via Resolution #R-09-233. Wall Street was one of the areas identified for installation of equipment for 115 spaces. As staff began the field work for the installation, it was noted that the original count of 115 spaces did not account sufficiently for drive approaches and no-parking areas. The space count for Wall Street has been updated to 71 spaces for metering. This decrease in metered spaces will decrease our projected meter revenue by approximately $80,000.00. Staff has identified an additional area for meter installation that will be presented to council during discussions about potential budget adjustments for the current fiscal year.

Kunselman’s Questions

In reviewing the council’s agenda online, The Chronicle noticed a novel kind of item – attachment of a communication from a councilmember with questions about agenda items asked of the city administrator and city attorney. In this case, the questions were from Stephen Kunselman (Ward 3):

PH-1 A2D2 Design Guidelines

What is the state enabling legislation that allows for a community to enforce mandatory compliance with community-adopted design guidelines (also known as “design standards”)?

What is the case history for legal challenges to mandatory compliance with community-adopted design guidelines? Specifically, has a community legally defended in a Michigan Court withholding a certificate of occupancy for violating a community-adopted design guideline for a building permitted, constructed, and compliant under the State Building code enforced by the municipality?

DS-6 Contracts for West Park Improvements

Are funds from the voter approved Park Millage being used for this project? If so:

Are any funds from the Park Millage being directed to the 1% for Art Fund? If so:

Please provide the voter approved Park Millage language that authorizes said funds to be directed to public art. If such language is not explicit, then, please provide a written legal opinion that substantiates the Administration’s position that voter approved Park Millage funds can be directed to other uses such as public art by Council majority approval.

If such is the opinion, is it legally defensible for the City to adopt a 1% for the Homeless program using the same rationale?

Are funds from the Stormwater Fund, a utility enterprise fund, being directed to the 1% for Art Fund? If so:

Please provide a written legal opinion that substantiates the Administration’s position that utility enterprise funds, including loans from the State, can be directed to public art by Council majority approval. If such is the opinion, is it legally defensible for the City to adopt a 1% for the Homeless program using the same rationale?

Given the phrasing of at least some of the questions, which request an opinion from the city attorney, their answers could be expected to be filed with the city clerk’s office as required by the city’s charter, which reads in relevant part:

The Attorney shall:

(1) Advise the heads of administrative units in matters relating to their official duties, when so requested, and shall file with the Clerk a copy of all the Attorney’s written opinions