City Council’s Directive: 3% Cut for Workers

Also: Initial approval for The Moravian, cell phone ban

Ann Arbor City Council meeting (March 1, 2010) Part 1: Having postponed a resolution at its last meeting – which directed the city administrator to reduce wages of non-union workers by 3% – on Monday the council passed a revised version of it.

Tony Derezinski talking on a cell phone

Tony Derezinski (Ward 2), who co-sponsored a new ordinance banning use of cell phones while driving or bicycling. The ban does not apply to driving one's council chair before the meeting starts. (Photos by the writer.)

But it was approved without the support of the measure’s two sponsors, Marcia Higgins (Ward 4) and Stephen Rapundalo (Ward 2). The version adopted by council specified a 3% minimum cut in compensation packages, taken over the aggregate of non-union workers. By the time the resolution was passed, it had also shed a “whereas” clause that Christopher Taylor (Ward 3) called “self-laudatory.”

In development news, The Moravian – a planned unit development (PUD) proposed on East Madison Street – received unanimous council support at its first reading. Approval at two readings is required for final approval. But Stephen Kunselman (Ward 3) responded to a resident request made at the previous night’s caucus to give some clue at the first reading as to how councilmembers were thinking about the project: “I’ll be voting against it at second reading – so there’s no question in the community’s mind.”

Based on the Sunday caucus, The Moravian will face a protest petition, which raises the bar for approval from six to eight votes.

The council also wrangled through a proposed ban on cell phone use while driving and bicycling – at a level of detail unusual for a first reading. The measure had undergone enough revisions since it was approved at the council’s previous meeting that its status Monday was reset to a first reading. Dissent on the ban came from Sandi Smith (Ward 1), who questioned whether it should be undertaken at the local level – as opposed to the state. Marcia Higgins (Ward 4) also dissented, pointing to the fact that the ban did not include hands-free phones.

The council also transacted a variety of other business, including a repeal of the city’s bicycle registration program, which is to be replaced with a new system after further consultation with stakeholders. The bicycle registration program, as well as other business and announcements, will be wrapped up in Part 2 of this report.

The 3% Budget Directive

Before the council on Monday was a resolution that gave the city administrator, Roger Fraser, direction on preparing the city’s budget. Fraser must, per the city charter, submit a budget to the council by its second meeting in April – this year, that’s on April 19. By May 17, their second meeting in May, the council must vote to adopt the budget with any amendments they choose to make. If the council does not adopt a budget, then the budget proposed by the city administrator is adopted by default.

The resolution before the council on Monday night requires Fraser to report back on the directives by April 1, which is before the budget proposal is due.

The resolution before the council differed from an earlier version, which had called for a 3% reduction in the “base salary” of non-union workers. The version before the council on Monday called for a minimum of a 3% reduction in their “compensation packages.”

Budget Directive: Amendment on Travel Allowance

The resolution before the council eliminated a $1,000/year travel allowance for the mayor and a $560/year travel allowance for councilmembers.

Sandi Smith (Ward 1) proposed an amendment to keep the mayor’s travel allowance, saying that it’s important for the mayor to go forward throughout the state to represent the city. Mike Anglin (Ward 5) agreed, saying that he’d been unaware that councilmembers had a travel allowance, and that he didn’t need one. However, said Anglin, the mayor is the symbol of the city.

Outcome: The amendment to keep the mayor’s travel allowance was approved, with dissent from Stephen Rapundalo (Ward 2).

Budget Directive: Amendment on Self-Laudatory Language

The resolution included a “whereas” clause that listed off councilmembers who had voluntarily committed to giving back 3% of their council salaries as having demonstrated leadership. [Chronicle coverage: "Ann Arbor Council Delays Vote on Pay Cuts"]

Christopher Taylor (Ward 3), whose name was listed, said that for his part he felt the clause was “self-laudatory” and did not see the need for it. An accompanying “resolved” clause called on all councilmembers to commit to the 3% give-back. Independently of whether it was possible for the council to compel the action of individual councilmembers, said Taylor, he felt it was not proper as a body to mandate something that is voluntary by nature.

Outcome: The clauses involving city councilmembers’ 3% salary give-back’s were deleted, with dissent from Marcia Higgins (Ward 4) and Stephen Rapundalo (Ward 2).

Budget Directive: Amendment on Percentage for Administrator and Attorney

Sabra Briere (Ward 1) proposed an amendment to a “resolved” clause that singled out the city attorney and the city administrator among the non-union workers targeted by the resolution for a minimum 3% reduction in compensation.  The attorney and the administrator are positions that report directly to the council, and the council sets their salaries.

Calling the 3% artificial, Briere said she felt the top of the pay scale could take a bigger hit: 5%.

Sandi Smith (Ward 1), however, said that she was encouraged by the word “minimum” and thought that it allowed enough flexibility, so she didn’t support specifying 5%.

Stephen Kunselman (Ward 3) wanted to know what the implications were numerically – the compensation packages covered salary, benefits, and vacation days. As much as he wanted the top administrators to show leadership, said Kunselman, he hesitated to use a broad brush.

Margie Teall, Marcia Higgins, Carsten Hohnke, Mike Anglin

Foreground to background: Margie Teall (Ward 4), Marcia Higgins (Ward 4), Carsten Hohnke (Ward 5), Mike Anglin (Ward 5).

Stephen Rapundalo (Ward 2) and Marcia Higgins (Ward 4), who had sponsored the resolution, said that the April deadline provided an opportunity to give additional direction before the final budget is proposed by the administrator.

Mayor Hieftje noted that council sets the pay of the city administrator and the city attorney, and could do so at their next performance review.

Higgins also noted that the resolution was a way to give public notice of the expectation and to give the two top administrators the “platform” to make changes.

Carsten Hohnke (Ward 5) noted that the 3% reduction was what they’d asked staff in general to accept and that the language specified a minimum, so he was not supportive of the amendment. He allowed, however, that if the amendment passed, he would be contributing an additional 2% of his council salary back to the city to bring his total up to 5%.

Christopher Taylor (Ward 3), however, said he felt that 5% was the proper place for the bar to be set.

Outcome: Briere’s amendment that reduced the city attorney and the city administrator’s compensation by 5% – instead of a minimum of 3% – failed, with support only from Briere and Taylor.

Budget Directive: Amendment on Collective versus Distributive

For linguists who specialize in the sub-field of semantics focusing on the the interpretation of English plurals, Monday’s council meeting would have been a welcome respite from their usual fodder, which tends to focus on pianos and the men who lift them.

Consider, for example, the following sentences about some men, say, Smith, Jones and Green:

  1. The men ate cake.
  2. The men gathered in the kitchen.
  3. The men lifted a piano.

Sentence (1) is true just when Smith, Jones, and Green each ate cake. That is, the meaning of sentence (1) requires the eating of cake to distribute over each of them: Smith ate cake, Jones ate cake and Green ate cake. For sentence (2), Smith, Jones and Green each have to be in the kitchen together in some event of gathering, but the sentence is not about the men as individuals – it’s about the men collectively. That is, the meaning of the sentence does not require that Smith gathered, Jones gathered and Green gathered.

Sentence (3) is the one that applies to the discussion at the city council meeting. It’s a sentence that has a distributive meaning – it could be about Smith lifting a piano, Jones lifting a piano and Green lifting a piano. Or it could have a collective meaning – it could be about Smith, Jones and Green, who worked together to lift a piano. On the collective meaning, it’s not the case that Smith lifted a piano, and Jones lifted a piano and Green lifted a piano.

At issue was the following “resolved” clause in the budget resolution:

RESOLVED, That beginning July 1, 2010 the compensation packages for all non-union employees will be reduced by a minimum of 3%;

Replace “the compensation packages for all non-union employees” with “the men” and replace “be reduced by a minimum of 3%” with “lift a piano” and you get something like sentence (3).

Councilmembers debated whether the resolution meant that the total of compensation packages summed over all employees had to be reduced by 3% – maybe Smith got a 1% cut but Jones got a 4% cut – or rather that it meant each employee had to get at least a 3% cut.

The Chronicle asked Peter Lasersohn, a professor of linguistics and specialist in the semantics of plurals at the University of Illinois, to weigh in on that question. His response was unambiguous:

Sentences with plural definite subjects are systematically ambiguous between collective and distributive readings, so I think the “RESOLVED” clause can be interpreted either way. I feel bad for Jones …

At the city council meeting, it was Carsten Hohnke (Ward 5), who brought up the question of the distributive versus the collective understanding of the sentence. He’d begun his questioning by asking if the city administrator was “compelled” by the resolution to deliver a budget as described by the resolution. City attorney Stephen Postema allowed that this was the intent of the resolution, but that it was the budget process itself [see section introduction] that compelled the kind of budget the council wanted.

Christopher Taylor Sabra Briere

As Christopher Taylor (Ward 3) wraps up his point about the aggregate interpretation of the budget directive, Sabra Briere (Ward 1) raises her hand to ask to speak.

Hohnke wanted to know if the 3% reduction applied to each person. Turning to Fraser, he asked: “How do you understand this?” Fraser replied that the resolution did not specify how to do it and that his staff’s job was to come back with their suggestion as to how to do it.

About the idea that it was each employee who had to have at least a 3% cut, concluded Hohnke: “That’s not what I’m understanding you to understand.” Otherwise put, Hohnke was on the same page with Fraser that it did not require a minimum 3% reduction of each employee’s compensation.

Christopher Taylor (Ward 3) weighed in, saying that it was fine if the intent was to allow for an aggregation that amounted to a 3% reduction, but contended that was not what the resolution said. “If Jones is not reduced, then it’s not consistent,” he said. Taylor then proposed an amendment that added the phrase “in the aggregate.”

Marcia Higgins (Ward 4) objected, saying that what Taylor was doing was changing the words to something that Fraser already understood the resolution to mean, and that they would have an opportunity to make any adjustments in April.

Sabra Briere (Ward 1) characterized the change as a grammarian’s correction, which she appreciated. City attorney Stephen Postema weighed in, saying that Higgins was correct about the opportunity in April, but allowed that Taylor’s suggestion of “in the aggregate” was useful.

When Sandi Smith (Ward 1) attempted to end the deliberation on Taylor’s proposed amendment by “calling the question,” the motion to end deliberations narrowly failed with only five votes – those of Smith, Briere, Rapundalo, Higgins, and Hohnke.

So Stephen Rapundalo (Ward 2), who sponsored the original resolution, weighed in. The intent, he said, actually was to set a baseline, with the idea that Fraser could adjust that.

Margie Teall (Ward 4) observed that Fraser and Taylor had a different interpretation of what the resolution said – so it was worth addressing – and wondered if deleting the word “all” would help. Taylor didn’t think so, saying that it was useful for highlighting the aggregate.

Tony Derezinski (Ward 2) took the “grammatical quibbling” to illustrate the futility of the process. By “process” he meant the idea that the council would express a budget directive in the form of a resolution. He’d weighed in earlier during the deliberations against the idea of doing that, and asked Higgins, who was one of the most senior members of the council, if that had been done in the past. Higgins affirmed it had been done.

Also on the subject of process, earlier in the deliberations Rapundalo had said that in the past the budget committee had given budget directives that had “never seen the light of day.” Passing a resolution of the council was a way to make it public and transparent, he said.

Mayor John Hieftje gave a nudge to wrap up the discussion by saying that if they were spending that much time on this amendment, then the budget decisions themselves were going to be “fun.”

Before they voted on Taylor’s amendment, Hohnke picked up on the topic of process, and noted that Fraser had asked the council for direction, and that the resolution provided that explicit direction.

Outcome: The amendment inserting “in the aggregate” succeeded, with Anglin, Briere, Derezinski, Taylor, Kunselman, Teall and Hohnke voting for it.

Overall final outcome: The council passed the 3% budget directive resolution as amended, with dissent from Derezinski, Rapundalo and Higgins.

Ban on Cell Phone Use While Driving

Before the council was an ordinance that prohibits use of cell phones while driving or bicycling.

Cell Phones: Public Commentary

At the conclusion of their meeting during public commentary general time, two speakers addressed the council about cell phone use. One speaker was concerned about allowing exceptions for certain people involved in emergency preparedness exercises – that set a bad precedent, he said. He encouraged the city to allow the issue to be addressed at the state level.

A second speaker asked the council to at least consider the cost of informing the public that such an ordinance would be enforced in the city, noting that there were numerous access points into the city, where signage might be required.

Cell Phones: Council Deliberations

The ordinance had already won the support of the council at its previous meeting. But it had undergone changes that were numerous enough that an additional first reading was warranted, said one of the measure’s sponsors, Stephen Rapundalo (Ward 2), on Monday. The changes were not really substantive, he contended, but their sheer number created enough red lines that it gave “the appearance thereof.”

Paul Green

Paul Green, a research professor at the University of Michigan Transportation Research Institute, provided some expert testimony on cell phone use while driving.

The changes, he said, were the result of various communication with other councilmembers and community members. Rapundalo called to the podium Paul Green, a research professor at the University of Michigan Transportation Research Institute, whose research focuses on driver distraction and driver workload.

One of the key research findings that Green explained to councilmembers was the idea that the problem with cell phones is not the object held in the hand, but rather the distraction of the conversation. The proposed ordinance would also make it illegal to do “destination entry” for GPS devices – Green explained that the distraction of a GPS device use was in the attention required to do that data entry, not in reading the map or listening to directions.

Why, asked Christopher Taylor (Ward 3), was talking on the phone different from talking to a passenger? Green explained that the key difference was that the passenger is also aware of the driving situation: you come to a stop, then look left and right – your passenger also looks left and right. The person on the other end of a cell phone conversation with a driver, Green said, will continue to “blab on until they hear a crash.” Listening to the radio, Green said, is completely discretionary, whereas the demands of a phone conversation are not – it’s rude not to take one’s regular conversational turn.

Tony Derezinski (Ward 2) wanted to know whether the ordinance made cell phone use while driving a primary or secondary offense. It’s proposed to be a primary offense, which means that police officers would be able to pull over a driver just for cell phone use. Secondary traffic offenses are only enforced if there is some other reason to pull a driver over.

Responding to a question from Rapundalo, chief of police Barnett Jones said it was important that it be a primary offense, because it would allow them to begin to “harden the community” against the behavior. Jones cited a 2003-04 statistic that attributed 24,000 traffic deaths nationwide to cell phone use while driving. He characterized it as a major safety hazard.

Chief Jones allowed that he himself has switched to hands-free Bluetooth technology for use while driving. Taylor picked up later on the hands-free versus hand-held distinction, and pointed to Green’s research conclusion that the distraction arises not because the hands are occupied, but because the mind is occupied. So Taylor wanted to know how the ordinance might be enforced, if the exception for hands-free use were not made in the ordinance. [The ordinance language provides for a number of exceptions, hands-free devices among them.]

Jones said that without the exception, it would put officers in a very prohibitive position. In that case, he said, they should consider going the whole way, and address people applying lipstick and eating cheeseburgers as well.

Marcia Higgins (Ward 4) said that if it was about safety, then “let’s go all the way.” She took a shot at the overall clarity of the language, asking, “Was this written up by the attorney’s office?” When city attorney Stephen Postema acknowledged that it had been written up by his office, she told him that she had to break down the paragraphs to understand what it meant.

Higgins asked Jones if other non-driving tasks were prohibited under other aspects of the vehicle code. Jones allowed that something like applying lipstick while driving could be enforced as “careless driving.” Higgins wanted to know why use of a cell phone while driving could not be handled the same way. Jones said that having an ordinance with specific language addressing cell phones made it “cleaner in a court of law.”

Higgins also asked about the burden of proof. In the case that a driver offers a defense that they were using a device in a hands-free manner, the burden of proof falls to the driver.

Stephen Kunselman (Ward 3) wondered what the difference was between holding an iPhone with a map displayed on it – which seemed to be prohibited – versus holding a paper map. Green clarified that the ordinance as written allowed someone to look at an iPhone map, but not to enter the destination.

Taylor came back to the data entry question by focusing on the “or otherwise operate” phrase in the ordinance. If the concern was typing, he said, they should talk about typing. Green clarified that the “or otherwise operate” phrase was meant to prevent the pressing of the various buttons to select “points of interest” from the map, which entailed reading through detailed menus of options.

Sandi Smith (Ward 1) said she had trouble with the ordinance – she’d prefer to see it done at the state level. She said she appreciated the efforts and the work of those who’d put time into the ordinance, but she felt it should happen in the context of the Michigan State Vehicle Code. Rapundalo had mentioned earlier that violations of the local ordinance would not result in points added to a driver’s license – because there’s no analogous state statute.

Hiefte said he thought that the work on the ordinance, with the changes that had been made to the ordinance since its first introduction, was a good example of the process working to produce a better piece of legislation.

Outcome: The ordinance banning cell phone use while driving or cycling was approved on first reading with dissent from Higgins and Smith. Enactment will be contingent on approval at a second reading.

Planned Unit Development (PUD): The Moravian

Planned unit developments are requests for rezoning of a parcel to accommodate projects that offer a public benefit in exchange for the rezoning. They are, stressed Stephen Kunselman on Monday night, discretionary on the part of the city council. They contrast with “by right” proposals that meet all aspects of city code. Kunselman also offered a tweak of the interpretation of the letters PUD – “promises until developed” – an allusion to the fact that a number of PUDs have been granted, but never built.

The Moravian is an almost 75,000-square-foot, four-story building over one level of parking containing 62 dwelling units, with a combined total of 150 bedrooms, and 90 off-street parking spaces. Twelve of the 62 proposed dwelling units are to be for affordable- to lower-income households. The project is located on East Madison Street, between Fourth and Fifth avenues.

Moravian: Public Comment

Several people signed up to comment during reserved time at the start of the meeting, but not all of them appeared. Speculation called out from the audience suggested some might have had problems finding parking or that they thought their speaking time was at the end of the meeting.

Beverly Strassmann, president of the Germantown Neighborhood Association, touched on a number of points speaking in opposition to the project. She contended that since the year 2000, 41 projects had been approved by the city that had not begun construction – for example, 601 S. Forest, Ann Arbor City Apartments, Broadway Village, and Kingsley Lane. She noted that there was a high percentage of vacancy in developments targeting student renters – 411 Lofts and The Courtyards, for example.

Strassmann also emphasized that South Fifth Avenue is a major commuter artery and that it needs to flow smoothly. The addition of 150 more bedrooms and 90 parking spaces, she feared, would cause ingress/egress problems. She was also concerned about the net effect on affordable housing, saying that while The Moravian offered 12 units of affordable housing, 19 units would be lost.

Shirley Zempel characterized The Moravian as “huge.” The building goes right up to the sidewalk on three sides, she said – Fifth Avenue, East Madison Street, and Fourth Avenue. She echoed the point Strassmann had made about the impact on traffic along Fifth, saying she’d have difficulty pulling out of her own driveway.

Kim Kachadoorian stressed the idea that The Moravian was not in downtown, but rather near downtown. She cautioned the council that some of the renderings provided by the developer showed surrounding houses with 5-6 stairs leading up to their front porches, when in fact they had 3-4 stairs. This left the impression that the houses were taller than they are, she said. Kachadoorian also contended that one rendering of The Moravian depicted the 5-story building as the same height as a 3-story University of Michigan building across Fourth Avenue from The Moravian. She cautioned against giveaways for developers.

Claudius Vincenz also stressed that The Moravian was not in downtown, but rather near downtown. He characterized the city staff report as deficient and biased. He said that when reading through the staff report, he thought it was the developer’s application. He objected to the fact that the planning commission had referred to some houses in the the neighborhood with the word “dumps.” He allowed that they are not mansion-type houses, but that they are affordable.

Richard Jacobson spoke during public commentary general time at the conclusion of the meeting. He stressed that based on the PUD review standards, a request should not be granted if the request is made in order to circumvent existing zoning. Jacobson contended that the project, in fact, was an attempt to circumvent existing zoning standards. He characterized the housing offered as “private dorms.”

Anne Eisen also spoke at the conclusion of the meeting. She asked the council to read carefully the planning commission minutes. What the developer characterizes as support from neighbors is, in fact, not support, she said.

Kyle Mazurek, vice president of government affairs for the Ann Arbor Area Chamber of Commerce, spoke on behalf of that organization as well as himself, a young professional living in Ward 5. He ticked through a number of benefits provided by the project: higher density development of the downtown area, expansion of workforce affordable housing opportunities in the downtown area, removal of blighted structures and obsolete industrial buildings, floodplain mitigation, property tax revenue to the city, enhanced housing options for young professionals, encouragement of alternative modes of transportation, enhancement of downtown area businesses and energy efficiency.

At the conclusion of the council meeting, speaking during public commentary general time, the developer of the project, Jeff Helminski, addressed the council saying that he recognized the challenge they faced in analyzing such a complex project, which had taken two years to bring to this point. He encouraged the council to rely on the city’s professional planning staff as well as the PUD standards of review. Responding to Strassmann’s concerns about approved projects that had not yet been built, he said he was confident that he could bring the project to fruition.

Responding to a report Mike Anglin (Ward 5) had given during his communications that he’d found studio apartments in the neighborhood that rented for $760 including utilities, Helminski stated that the affordable units in The Moravian would rent for no more than $690, and that their affordable status was assured in perpetuity through the supplemental regulations of the PUD. Addressing concerns about the FEMA flood maps that had not been finalized, he contended that the data was final and that The Moravian had been planned based on that data. What they were waiting for, he said, was the final publication of the maps based on the data.

Moravian: Council Deliberations

At the caucus held the previous evening, on Sunday, Beverly Strassmann, president of the Germantown Neighborhood Association, indicated that a protest petition would be submitted against The Moravian. That would raise the bar for council approval from six to eight votes out of 11.

Helminski and Teall

Jeff Helminski, developer of The Moravian, chatted with Margie Teall (Ward 4) before the council meeting started.

On Monday, Stephen Kunselman (Ward 3) responded to a resident request made at the previous night’s caucus to give some clue at the first reading as to how councilmembers were thinking about the project: “I’ll be voting against it at second reading – so there’s no question in the community’s mind,” he said.

At the council table on Monday, Carsten Hohnke (Ward 5) and Mike Anglin (Ward 5) made remarks that could fairly be interpreted to mean their support at second reading is uncertain. Sabra Briere (Ward 1) read from two contrasting passages in the city’s central area plan to illustrate the conflicting concerns that surround council’s evaluation of the project.

Council deliberations began with Hohnke alluding to another project in roughly the same neighborhood, Heritage Row – which began life as City Place. The council had voted down the City Place PUD a little over a year ago. Hohnke said he imagined that residents were getting a bit weary. He characterized the conversation about what kind of development is appropriate for the neighborhood as a “long slog.”

On the question “What is downtown?” Hohnke said it was clear for him: The downtown boundary is William Street. That meant, said Honhke, that the neighborhood under discussion – which lies south of William – is not downtown. So Hohnke said that many of the considerations for added public benefit offered by The Moravian – based on what’s called for in the downtown (e.g., added density) – did not carry a lot of weight with him. Hohnke concluded that the benefits required of a PUD were a significant threshold that had to be met, given that the city would be setting aside the existing zoning on the site.

Mike Anglin (Ward 5) reported that there had been an extended discussion at the previous night’s caucus and that he had a whole series of questions that he would be circulating by email. Among his concerns: statements by neighbors that had been misrepresented by the developer; the number of projects in the city that had been approved, but not started; flood maps that had not yet been issued.

During his communications time earlier in the meeting, Anglin said he’d walked the neighborhood and found a house with three studio units for rent: $760 including utilities. He questioned whether it was possible to build new construction that was equally affordable.

Marcia Higgins (Ward 4) picked up on the issue of flood maps, and Wendy Rampson, head of planning for the city, confirmed that no permits could be pulled until the FEMA flood maps were finalized, which would potentially be within the next year.

Sandi Smith (Ward 1) said she’d vote yes at first reading so that the dialog could continue. She allowed that the Downtown Development Authority‘s taxing district is one way to define downtown. But she noted that the neighborhood in question was near downtown. She noted that there’d been a lot of time spent discussing what is appropriate in a near downtown neighborhood. One of those issues, she said, involved whether parking meters were appropriate there. [Smith has worked since last year to forestall installation of parking meters in neighborhoods near downtown, which were seen as a potential revenue source.]

Smith noted that they were getting pushback from people who also objected to development in the center city – they wanted the top of the Library Lot to be established as a park.

Tony Derezinski (Ward 2) noted that the role of the first reading was to introduce a topic to the public, but that in this case, “it’s like introducing Methuselah.” Derezinski, who serves as the city council’s representative to the planning commission, had already seen the project in a fair amount of detail when it was reviewed by that body. Derezinski stressed that the city’s professional planning staff had put a lot of time into the project. He said that you have to pay serious attention to staff recommendations – city staff had recommended approval, and the planning commission vote was 7-1 in favor. He urged his council colleagues to really read the staff report so that the project got a fair hearing.

Margie Teall (Ward 4) echoed Derezinski’s sentiments, saying that the DDA boundary was artificial – the site in question was an urban neighborhood in an urban setting, she said.

Stephen Kunselman (Ward 3) suggested that for a project to take two years to come forward, it meant that there was likely something wrong with the project. He said he thought the project was out of context and character for the neighborhood and did not do much for “more doors on the street.” He felt that it was geared towards students. It was like taking The Courtyards housing development on the north end of Broadway, he said, and “plopping” it near downtown. He said he’d vote for it at first reading, but would oppose it at the second reading.

Sabra Briere (Ward 1) said she was not quite as definitive – she said she’d hate to cut off debate this early. She said she’d not looked at the project in detail, yet. Instead, she said, she’d oriented herself to the city’s central area plan and the PUD regulations [.txt file of PUD review standards].  She’d done that, she said, as a response to the challenge that had been made at the previous night’s caucus by Eppie Potts to give some clue what the council was thinking. Briere said it had caused her to reflect on what one should say at a first reading, when the council is just moving the process forward.

The standards for PUD review referenced by Briere, contained in the city code and presented here in severely abbreviated form, are as follows:

(6) Standards for PUD zoning district review. The commission shall recommend approval, approval with conditions, or denial, and City Council shall approve or deny the proposed PUD zoning district based on the following standards:

(a) The use or uses, physical characteristics, design features, or amenities proposed shall have a beneficial effect for the City, in terms of public health, safety, welfare, aesthetics, or convenience, or any combination thereof, on present and potential surrounding land uses. …

(b) This beneficial effect for the City shall be one which could not be achieved under any other zoning classification and shall be one which is not required to be provided under any existing standard, regulation or ordinance of any local, state or federal agency.

(c) The use or uses proposed shall not have a detrimental effect on public utilities or surrounding properties.

(d) The use or uses proposed shall be consistent with the master plan and policies adopted by the City or the petitioner shall provide adequate justification for departures from the approved plans and policies.

(e) If the proposed district allows residential uses, the residential density proposed shall be consistent with the residential density recommendation of the master plan, or the underlying zoning when the master plan does not contain a residential density recommendation, unless additional density has been proposed in order to provide affordable housing for lower income households …

(f) The supplemental regulations shall include analysis and justification sufficient to determine what the purported benefit is, how the special benefit will be provided, and performance standards by which the special benefit will be evaluated.

(g) Safe, convenient, uncongested, and well-defined vehicular and pedestrian circulation within and to the district shall be provided and, where feasible, the proposal shall encourage and support the use of alternative methods of transportation.

(h) Disturbance of existing natural features, historical features and historically significant architectural features of the district shall be limited to the minimum necessary to allow a reasonable use of the land and the benefit to the community shall be substantially greater than any negative impacts.

The passages from the city’s central area plan, which Briere read aloud, were these:

[page 21] Finally, the current zoning does not provide guidelines for what is appropriate density in relationship to the area, and it does not reflect density differences between the various neighborhoods.  The ordinance allows more bulk and density than many neighborhoods want or consider appropriate.  Conversely, the City Council and Planning Commission have steadily decreased allowable density since the 1960s, making it difficult for residential infill development to occur, resulting in nonconformities.

[page 41 ] In various locations around Ann Arbor, houses are overshadowed by larger commercial, residential or institutional buildings that are out of scale with existing surrounding development. In addition to being aesthetically displeasing, out-of-scale construction alters the quality of living conditions in adjacent structures by blocking air and light and by covering open green space with excessive building mass.

Outcome: The Moravian was given approval on first reading. Final approval would need to be given at a second reading.

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

Next council meeting: Monday, March 15, 2009 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]


  1. By Alan Goldsmith
    March 3, 2010 at 6:35 am | permalink

    “Higgins also asked about the burden of proof. In the case that a driver offers a defense that they were using a device in a hands-free manner, the burden of proof falls to the driver.”

    So here we go, with a law that finds you guilty until proven innocent and will probably end up in court. Kudos to Marcia Higgins for bringing up this issue and voting against the resolution.

  2. By Christopher Taylor
    March 3, 2010 at 8:54 am | permalink

    I read the “hands free” exception as an affirmative defense to what would otherwise be a violation of the ordinance — talking on a cell phone while driving. In other words, the driver will say, “I admit that I was talking on a phone, but I was using a hands free device and therefore my speaking on a phone is excused.” The burden to prove an affirmative defense always rests with the defendant. The provision does not alter the burden, it explains the burden.

    If anything it is superfluous.

  3. By Rod Johnson
    March 3, 2010 at 9:21 am | permalink

    As a linguist, although admittedly not one who specializes in plurals, I don’t remember ever seeing an example sentence involving pianos.

    Semi-unrelatedly, I’ve never understood the function of “whereas” and “resolved” clauses in resolutions. Do they actually have some specific force, or are they just part of the rhetoric of resolution-talk? Some sort of archaic survival from the 18th century? Any reason they couldn’t just be bullet points, PowerPoint stylee, or any other arrangement of words? Do resolution writers put a lot of energy into getting their whereases and resolveds right?

  4. By MargaretS
    March 3, 2010 at 9:23 am | permalink

    Re: Moravian “Margie Teall (Ward 4) echoed Derezinski’s sentiments, saying that the DDA boundary was artificial – the site in question was an urban neighborhood in an urban setting, she said.”

    Well how about A2D2 then? This very expensive, lengthy, and intensive effort calls for increased density/height downtown, with stepped down density in the near downtown. This level of density and site usage outside downtown leap-frogs the downtown, there by reducing the likelihood of more intense development downtown.

    Derezinski’s comment that the staff recommendation should be respected is laughable. He has a record of showing zero concern for staff denial when voting for projects he likes.

    Sandi Smith’s comment about citizen support for a park vs. a conference center on the library lot makes a false comparison. A hotel/conference center will not increase housing density downtown. The choice there is not between housing vs. a park on the library lot. I support the park, but would support afforable/mixed-rate housing there instead if that option were on the table. So would most park proponents I imagine.

    Kudos to Kunselman for giving the public a clear understanding of his position. Anglin, Briere and Hoenke should be commended for candor and careful thought.

    Smith, Derizinski always come down pro-development and against protection of near-downtown neighborhoods. I would love to hear them state this clearly in their re-election platforms, so everyone knows where they stand. Not likely.

  5. By Tom Bourque
    March 3, 2010 at 9:36 am | permalink

    Dave: What a thorough and clear report on what was obviously a confusing meeting. I feel as though I do not need to attend the meetings as long as I read your articles. Keep up the good work.

  6. March 3, 2010 at 10:35 am | permalink

    With regard to the question in #3, there is a very specific meaning to whereas and resolved clauses. Basically, the whereas statements are background to establish the thinking behind a legislative motion. They are also used as political puffery. (I’m becoming a real connoisseur of Christopher Taylor’s locutions.) But the “resolved” is actually the law being made. It is common practice in legislative negotiations to move important clauses from the “resolved” to the “whereas” category, thereby making them nonenforceable.

    So a resolution might say, “Whereas, motherhood is as American as apple pie”, it then may say “Resolved, the city will not grant maternal leave beyond that required by Federal law.” It’s the resolved clauses that you have to watch.

  7. By ChuckL
    March 3, 2010 at 12:22 pm | permalink

    People should keep in mind that anytime a police officer is allowed to stop a vehicle, an infringement of the Fourth Amendment to the US Constitution has occurred. Yes, there may be a valid reason to pull over a vehicle, but this fact does not mean no infringement has occurred. It is not necessarily the case that enforcement will result in fewer distracted drivers meaning then that there would be no justification for any rights infringement. The city should be willing to demonstrate that the enforcement is effective at reducing accidents in the city. It is also note worthy that seat belt laws started off as being non-primary. Non-primary has less of an effect at infringing on civil rights.

  8. By Rod Johnson
    March 3, 2010 at 5:00 pm | permalink

    I don’t think that your viewpoint on the constitutionality of vehicle stops is a mainstream one, at least since Carroll v. United States (1925). What are you basing this claim on?

  9. By ChuckL
    March 3, 2010 at 7:03 pm | permalink


    You don’t get the point. The police have to have a good reason to pull over a vehicle. Laws that are passed in the name of protecting the public have to actually protect the public. If enforcement is ineffective at reducing accidents, there is no justification for pulling people over for talking on their cell phones. Reducing distraction is a good objective but there is no proof at this point that enforcement actions will be effective at reducing accidents. I suspect the real reason for passing a cell-phone ban is to generate revenue for the city. We could end up with a situation where drivers in Ann Arbor are paying millions in fines and there is no improvement in the safety situation; why should we give up our civil rights in that case?

  10. By Rod Johnson
    March 3, 2010 at 9:33 pm | permalink

    I get the point that you think it’s wrong and unwise, and I’m not necessarily in favor of this law. I’m just doubting your specific Constitutional reasoning about unlawful searches and seizures. You say “anytime a police officer is allowed to stop a vehicle, an infringement of the Fourth Amendment to the US Constitution has occurred.” But in Carroll v. US the Supreme Court held that motor vehicles are to some extent exempt from 4th Amendment protections. So that’s why I’m asking what you’re basing your claim on.

  11. March 3, 2010 at 11:10 pm | permalink

    The Carroll Doctrine simply allows police to search a vessel, that is mobile (or capable of mobility), without a warrant based on the ability of said vessel to be mobile while the officer obtains a warrant. It does not stop the officer from needing probable cause to engage in the search nor does it protect the officer from liabilities should the search be conducted without probable cause. So, it’s not really exempt from the protection of the 4th amendment per se. That being said… I think this law is a ridiculous waste of time.

    Of the “24,000 traffic deaths nationwide,” how many occurred within the jurisdiction of Ann Arbor? What percentage of the traffic deaths in Ann Arbor are a direct result of this issue? Even should we assume that all life is precious, surely there are more important activities to target to improve the safety of our roads; not to mention the physical roads themselves.

    I disagree with this proposed ordinance. What’s next? Shall we ban singing in the car? Will you not be allowed to adjust your radio, turn on windshield wipers, or put a cd in the player? Enough is enough.

  12. By Rod Johnson
    March 4, 2010 at 12:23 am | permalink

    Fred, my only point is that since Carroll, it is simply not true that “anytime a police officer is allowed to stop a vehicle, an infringement of the Fourth Amendment to the US Constitution has occurred.” If there’s probable cause, you can stop and search without a warrant. If an officer observes someone violating an ordinance (like the cell phone ordinance), that seems like the kind of thing a court might recognize as probable cause. Even if it’s a dumb law, fighting it on constitutionality grounds seems unlikely to get anywhere. (Kind of like the guys who, year after year, argue that they shouldn’t have to pay income taxes for similar reasons.)

    I agree with you otherwise. I was in Marshall yesterday, lost, and started to make a call, and then thought wait, is cell phone use legal in Marshall? How would I know, if I’m just passing through some random town? What if I get dinged for cell phone use in Ann Arbor but it turns out I’m in a township island? I’m not opposed to this law in principle–if it can be justified–but it should be done at a state level, It seems stupid to have a patchwork of laws like this based on invisible municipal boundaries.

  13. By ChuckL
    March 4, 2010 at 7:50 am | permalink


    Homicide is homicide even when justified and an infringement is an infringement even when justified. The Fourth says we have a right to be left alone; if the state wants to impinge on our right to be left alone it needs a good reason to do so. If we do not see an improvement in safety as a result of this ordinance, it should be eliminated.

  14. March 4, 2010 at 10:41 am | permalink

    The fact is there is growing regulatory action in other cities, states, and countries regarding cell phone regulation that is driven by safety concerns. Here’s what I found our Canadian neighbors in British Columbia did recently regulate the technologies. FYI – This
    law was in effect during the Olympics in Vancouver. Whether it was enforced I don’t know, but I do know I never heard any reporter or athlete complain about it and if you watched the closing ceremonies you couldn’t possibly keep count of all the cell phone devices in use. One interesting point in the BC law is that NEWLY licensed drivers have more restrictions. I kind of like that approach since kids get in more accidents and they’re using more mobile devices then older, more experienced drivers.

    The British Columbia Cell Phone Ban (went into effect 1/1/10 w/ 1 month grace period). There’s an interesting video that goes along with it with this article. [Link]

    Here’s the nuts and bolts of what is being regulated, and what’s not.
    Note, they take into account lots of technologies including 1/2 duplex hand microphones, 2-way radios and data terminals. [downloadable .pdf file]

    Since I still believe it’s not the technologies that need regulating but rather the vehicle operators my concerns to city council have been expressed from that perspective.

    Here’s what I think should be considered.

    “Professionally trained vehicle operators, with proof of active federal, state, or municipal licensing, OR professional certification, THAT INCLUDES SAFE MOBILE COMMUNICATIONS OPERATIONS, are exempt from this law.”

    So if I wrote that single sentence as I meant to, it would replace many of the separate line item exemptions in the current draft and help improve professional training in effected organizations.

    I look forward to a spirited debate.

    aka a2works
    aka KD8MZM

  15. March 4, 2010 at 11:16 am | permalink

    As mentioned above, there is action in other states toward cell phone-distracted driving. Question: what is happening in Michigan in this regard? (As a state-wide rule.)

  16. By ChuckL
    March 4, 2010 at 12:40 pm | permalink

    The point I keep trying to make and the point people seem to be missing is that passing a law and handing out tickets do not necessarily make us safer. Just because some activity has been proven to produce safety related issues does not mean police enforcement is the most effective way to attack the problem or that it will even be effective at reducing accidents. As I’ve said, we could end up with a situation where the number of distracted drivers is still the same but now the only difference is that we are paying the state millions to “protect” us and giving up our civil rights along with the millions in protection money.

  17. By Rod Johnson
    March 4, 2010 at 1:30 pm | permalink

    If that’s the point you’re trying to make, then why not just say that? Put this way it seems pretty obviously true. It was only the constitutional red herring–both here and in the Moravian thread–I was taking issue with.

  18. By Christopher
    March 6, 2010 at 12:04 pm | permalink

    Once again, Dave Askins, thank you for the very comprehensive writeup. This is a tremendous service to the community.

  19. By Mark Koroi
    March 15, 2010 at 11:38 pm | permalink

    Cell phone usage while driving kills 1,400 Americans per year.

    On the other hand, the Fourth Amendment proscribes unreasonable searches and seizures.

    A practical aspect is enforcement, which will be diffficult. How can a police officer, who is perhaps several hundred feet away distinguish a cell phone user with perhaps someone listening to a portable radio or tape recorder.

    The careless driving section of the Michigan Motor Vehicle Code could be used currently to proseute those not paying attention to the road while driving.

    I see potential abuses by police trying to initiate pretext stops under this proposed ordinance.