Arbor Dog Daycare Returns – and Prevails

Ann Arbor planning commission meeting (Dec. 21, 2010): More than a year after making their initial request, the owners of Arbor Dog Daycare were granted a special exception use on Tuesday, allowing the South Main Street business to expand.

Several conditions were added, including requirements related to the number of dogs allowed outside, and action to be taken if there’s continuous barking. Noise concerns had been a reason cited by commissioners who previously voted against the request.

Also at Tuesday’s meeting, the commission granted a special exception use and approved the site plan for Allen Creek Preschool, which plans to tear down an existing house and build a larger one at its Franklin Street location.

Commissioners also heard several updates and communications, including a request for feedback on a draft resolution regarding a proposed development agreement between the city and the Ann Arbor Downtown Development Authority.

Arbor Dog Daycare Gains Approval

The owners of Arbor Dog Daycare, Jon and Margaret Svoboda, have come before the planning commission several times, dating back to December 2009. They’ve been seeking approval for a special exception use that would allow the business to expand. A special exception use is needed because the business – located at 2856 S. Main St., near the corner of Eisenhower – is in an area zoned for offices. It is surrounded by residential areas, and the commission’s main concern has been noise issues associated with barking dogs disturbing the neighbors.

The project came before the commission at its Sept. 21 meeting, when commissioners ultimately rejected the request by a 5-4 vote due to concerns about noise generated by dogs using the outdoor dog run. Then at the commission’s Oct. 5 meeting, the Svobodas returned to ask that their request be reconsidered, and commissioners voted unanimously to take up the proposal again at their Oct. 19 meeting.

The major change between the original request and the one to be reconsidered is that the Svobodas offered to keep only 15 dogs outside at any one time, a decrease from the 25 dogs that have been allowed. They also offered to cut the number of hours that dogs would be permitted outside – on weekdays, for example, the time would be limited to 10 a.m. to 5 p.m.

At the commission’s Oct. 19 meeting, the proposal was tabled so that staff could explore possible conditions – such as an annual review or written policy requirement – that could be added to the special exception use to address the problem of continuously barking dogs.

At Tuesday’s meeting, Chris Cheng of the city’s planning staff reported that staff had consulted with the city attorney’s office to seek answers to four questions that commissioners had raised:

• Q: Can the commission add a condition preventing the owners from transferring ownership of the business to another owner? A: No – a special exception use is an approval that is granted to the use on the land, not the owner.
• Q: Can the commission add a condition requiring that the operator’s record of noise violations be reviewed annually to determine whether they are complying with limits on noise coming from the business? A: Yes – however, it would be for informational purposes only. The planning commission could not revoke a special exception use after the original approval.
• Q: Can the commission add a condition requiring the operator to make a report to the commission each year? Yes – however, it would be for informational purposes only. The commission could not revoke a special exception use after the original approval.
• Q: If a special exception use is approved for an expanded number of dogs, how would repeated noise problems be addressed? A: Noise from barking and howling dogs that violates the standards of Chapter 107 (Animals) and Chapter 119 (Noise Control) would be addressed by issuing civil infractions, which could include a fine of up to $500 per instance. Violating the conditions of a special exception use would also be a violation of Chapter 55 (Zoning) and Chapter 57 (Subdivision and Land Use Control), and could be ticketed as a civil infraction.

The definition of a noise nuisance under the animals ordinance is:

Barking, howling, meowing, squawking or making other sounds, frequently or for a continued duration, which annoys, endangers, injures or disturbs a person of normal sensitivities on premises other than that occupied by the owner of the animal. After 10 p.m. and before 7 a.m., animal noises audible beyond the property line of the property where the animal is located are presumed to be an annoyance and disturbance and are presumed to constitute a noise nuisance.

Cheng then described the conditions that staff was recommending for the Arbor Dog Daycare’s special exception use, in response to commissioners’ concerns. There are eight:

1. limiting the size of the operation to a maximum of 10,000 square feet;
2. limiting the hours of operation from 6 a.m. to 8 p.m. Monday through Friday and 8 a.m. to 8 p.m. on weekends, and allowing indoor boarding during the hours the day care is closed;
3. limiting the number of dogs in the building to 125;
4. limiting the number of dogs in the outdoor dog run to 15 at one time and limiting the outdoor dog run hours to 10 a.m. to 5 p.m.;
5. requiring supervision of all dogs taken outside of the facility by an employee or employees of the facility or by their owners;
6. requiring compliance with Chapter 119 of the city code (Noise Control);
7. requiring compliance with Chapter 107 (Animals), such that the owner of the dog daycare facility shall be considered the owner of the animal for purposes of enforcement of noise nuisance violations;
8. requiring compliance with fire department requirements for additional fire extinguishers, No Parking Fire Lane signs on site and a future fire department review if the business changes use.

The planning staff recommended granting the special exception use, Cheng said.

Arbor Dog Daycare: Public Hearing

Jon Svoboda, co-owner of Arbor Dog Daycare, was the only person to speak during the public hearing. [His wife and co-owner, Margaret Svoboda, attended the meeting but did not address commissioners during public commentary.] He said they were fine with the proposed conditions, and that their intent was to address the noise concerns. His only question, he said, was whether there were enough commissioners present to vote.

A special exception use requires six votes. Only six commissioners were present at Tuesday’s meeting – including three commissioners who had previously voted against the special exception use: Jean Carlberg, Kirk Westphal, and Diane Giannola. Bonnie Bona, who was absent on Tuesday, also had voted against it.

Eric Mahler, the commission’s chair, noted that with six commissioners present, there was a quorum, which would allow a vote to be taken. “So we’ll see how it goes,” he said.

Arbor Dog Daycare: Commission Deliberations

Jean Carlberg kicked off the discussion by saying she’d become “painfully aware” of the limitations of a special exception use. Legally, once the special exception use is granted, it can’t be revoked – even if the owners don’t meet its conditions. She said she appreciated that supervision of the dogs had been added as a requirement, but was disappointed that there wasn’t any action required to deal with barking dogs. She proposed adding another requirement – to remove dogs from the outside area if they barked continuously for more than three minutes.

Carlberg added that she didn’t want the burden to be on neighbors to file a complaint. There should be some requirement for the owners to take action, she said.

Kirk Westphal wondered whether they might just apply the existing noise ordinance, but impose the ordinance’s more stringent requirements for longer hours. The ordinance standards prior to 7 a.m. and after 10 p.m. are more strict, he noted, stating that “animal noises audible beyond the property line of the property” are considered to be a nuisance. Could those stricter standards be applied all day long? Tickets for violating the ordinances would be a deterrent, he said.

Carlberg said she believed both approaches would be helpful, but that the first thing should be to get the barking dogs inside. Then there wouldn’t be a need for ticketing, she said.

Diane Giannola agreed with Carlberg, noting that a ticket is a punishment. She’d prefer including an action clause requiring the owners to deal with the barking dogs before it became a problem that required ticketing.

Giannola also expressed concern over the city’s ability to enforce these conditions. How long would a special exception use be in effect? Wendy Rampson explained that there two types of enforcement:(1) issuing tickets, and (2) taking the owners to court, if ticketing isn’t effective. She noted that the city has done this in the past, for property owners that haven’t complied with city ordinances.

Cheng told commissioners that if the city receives complaints, the planning staff can start going out to the business at random times, to check on compliance.

Westphal proposed adding a condition requiring the “mitigation of barking noises such that barking is not audible for more than three minutes at a time.” Eric Mahler expressed concern that this would be overly broad, in that it doesn’t specify whether the dogs are inside or outside – how reasonable was it to expect that condition to be met, given that there would be 125 dogs inside?

Carlberg said she’d visited the business when the door to the building had been open. The sounds of barking dogs on the inside hadn’t been audible from the property line, she said.

Commissioners ultimately reached consensus to amend condition No. 7, adding a requirement to remove barking dogs from the outside area [added language in italics]:

7. compliance with Chapter 107 (Animals), such that the owner of the dog daycare facility shall be considered the owner of the animal for purposes of enforcement of noise nuisance violations; if noise as defined by this ordinance persists for more than three minutes, the owner shall take the dog or dogs inside.

Derezinski pointed out that “500 bucks a whack” would be a pretty effective deterrent. From his seat in the audience section of the room, Jon Svoboda called out, “Yeah!” Derezinski also noted that people would be watching the situation closely.

Outcome: All six commissioners present voted unanimously to approve the special exception use, as amended, for Arbor Dog Daycare. It does not require further approval.

After the vote, Mahler commented to the Svobodas that “perseverance pays off.” They responded by thanking the commissioners before leaving the meeting.

Allen Creek Preschool Project OK’d

In October 2008, the Allen Creek Preschool had been granted a special exception use to hold its preschool in an 810-square-foot residential home at 1515 Franklin Street, north of Miller Avenue. Now, the preschool owners are asking to build a larger house on the site, which would also be used for the preschool. The new 1,101-square-foot building is designed to look like a single-family home and it could be converted into a home in the future. The project requires another special exception use and site plan approval by the city. The existing house would be demolished.

Allen Creek Preschool: Public Hearing

One person – Andrew Boschma, the school’s treasurer and a Brighton resident – spoke at the public hearing. He told commissioners that the existing building is in very poor condition. They had originally thought they could rehab it, but came to realize they’d just be wasting money. The new, larger building would have a more functional layout, he said.

Allen Creek Preschool: Commission Deliberations

Kirk Westphal began by asking about citizen participation – had neighbors been contacted about the project? Chris Cheng reported that a postcard mailing had been sent to neighbors within 500 feet of the property, but there had been no neighborhood meeting. Wendy Rampson, head of the planning staff, explained that no meeting is required for smaller projects like this – it’s only site plans for major projects that trigger neighborhood meetings and citizen participation reports.

Jean Carlberg commented that the new building seemed like a better amenity for the neighborhood. She liked the fact that parking would be handled primarily through formalizing a parking easement with an existing preschool facility at 2350 Miller Ave., and through a supplemental parking lot use agreement with the Korean Methodist Church at 1526 Franklin St.

Carlberg noted that the preschool is quite unusual and is an asset to the community, adding that the project is well worth supporting.

Tony Derezinski agreed, citing the importance of early childhood education in general. He also liked the fact that the preschool is located in a neighborhood, making it walkable for local residents. The design is unique, he said, and is well-suited to the neighborhood.

Outcome: Commissioners unanimously approved the Allen Creek Preschool special exception use and site plan. The special exception use needs no further approval, but the site plan must be voted on by the city council.

Newport Road Property Annexation Approved

Without discussion, commissioners recommended approval of a request to annex a 1.1-acre Newport Road parcel from Ann Arbor Township, and zone it as R1A single-family residential. The property is owned by Lisa Brush and Jim Frey, and includes a single-family house.

In order to hook up to city utilities, the owners must sign water and sanitary sewer agreements with the city. According to a memo regarding the annexation, charges will be based upon the date of active service. The property’s fixed water improvement charge is estimated to be $14,539; its fixed sanitary sewer improvement charge is estimated at $22,530.

Misc. Communications

There were several items of information presented during the meeting by commissioners and staff.

Misc. Communications: City/DDA Development Deal

Wendy Rampson, head of the city’s planning staff, noted that at the city council’s Dec. 20 meeting, councilmember Christopher Taylor (Ward 3) had brought forward an item of communication – a draft resolution regarding a proposed agreement between the city and the Ann Arbor Downtown Development Authority. [.pdf file of the draft resolution. See also Chronicle coverage of Taylor's remarks from Monday's city council meeting.]

The proposal is one outcome of the “mutually beneficial” committees of the two entities, which have been working for over a year to negotiate a new parking agreement. [The DDA administers the parking structures and surface lots for the city.] As part of those negotiations, a proposal emerged for the DDA to redevelop city-owned surface parking lots in the downtown area. The resolution – which Rampson said Taylor intends to put on the agenda at a January city council meeting – would authorize the DDA to develop a proposal for what’s called the “parcel-by-parcel” plan.

The proposal includes a role for the planning commission in developing the plan and reviewing specific proposals, Rampson said. She asked commissioners to read through the draft resolution and let her know if they have questions or comments to forward to Taylor.

Misc. Communications: Updates from City Council

Tony Derezinski, who also represents Ward 2 on Ann Arbor city council, reported that the council had a full discussion at its Dec. 20 meeting about a proposed corridor improvement authority (CIA) for Washtenaw Avenue. After what he characterized as a few minor, friendly amendments, the council unanimously approved a resolution of intent to coordinate with Pittsfield Township, Ypsilanti Township and the city of Ypsilanti to explore establishing a CIA. Derezinski described it as an initial step, but a positive one for development of that stretch between Ann Arbor and Ypsilanti, which covers for jurisdictions. [See Chronicle coverage of the discussion from Monday's city council meeting.]

Misc. Communications: Design Guidelines

Kirk Westphal quipped that “some thought it might never happen,” but he reported that the design guidelines task force is nearing completion of their work. They’ll be presenting a proposal at a city council working session in January, he said. The design guidelines are the final piece of the A2D2 rezoning initiative for downtown Ann Arbor. The zoning provisions have already been approved by the council.

Present: Jean Carlberg, Tony Derezinski, Diane Giannola, Eric Mahler, Evan Pratt, Kirk Westphal.

Absent: Bonnie Bona, Erica Briggs, Wendy Woods.

Next regular meeting: The planning commission next meets on Tuesday, Jan. 4  at 7 p.m. in the Washtenaw County administration building boardroom, 220 N. Main St., Ann Arbor. [confirm date]