Ward Changes Paused, No Recycling Pay Hike

Ann Arbor city council meeting (July 5, 2011): Baked into the council’s post-Independence Day meeting was a fundamentally democratic theme: voting.

It began with public commentary on the topic of a proposed redrawing of the boundaries for the city’s five wards. The city charter requires the wards to be pie-shaped wedges. The redrawing of the lines themselves was not thought to be particularly controversial. But the timing of the redistricting stirred a representative of the American Civil Liberties Union to appear before the council to address councilmembers. Attorney John Shea, speaking for the ACLU, told them they shouldn’t enact boundary changes between the primary and the general elections. Ultimately, the council kneaded the advice into their thinking, and voted to postpone the whole question of redistricting.

The meeting ended with a voting snafu, when the council tried to convene a closed session to discuss land acquisition. So even though the vote was 6-3 in favor of entering into a closed session, a 2/3 majority of members present did not satisfy the statutory requirement of a 2/3 majority of the council’s 11 members. The vote was eventually recognized as only half-baked, and the council came out of their workroom, revoted 8-1 to re-enter the closed session, and completed the meeting without further complications.

Part of the meeting’s creamy dessert filling also depended on a somewhat infrequent parliamentary exercise that resulted in revoting an item that the council had approved two weeks earlier. That vote was on a contract for the reconstruction and relocation of water, sanitary sewer and stormwater lines in the vicinity of the proposed site for the Fuller Road Station. Mike Anglin (Ward 5) brought the resolution back for reconsideration, and council members voted unanimously to roll out the dough again by rediscussing and revoting the issue. The outcome was the same – it was approved – but Anglin registered his dissent this time by voting against it. He told his colleagues that when they’d voted two weeks ago, he had not realized that the project was related to the Fuller Road Station site.

Also part of the council’s meeting was a significant vote that received no discussion by the council. A proposal to voluntarily increase an already-approved contract with Recycle Ann Arbor was voted down 5-4, thus failing by one vote to achieve the six-vote majority it required.

The council also wrapped up a loose end from its previous approval of ordinances related to zoning and licensing of medical marijuana, by approving a non-disclosure policy. The policy ensures that private information of patients and caregivers is not divulged.

In an item added late to the agenda, councilmembers also approved a one-year contract with the city’s deputy police chiefs union.

In other business, the council set a new design review board fee at $500. It also approved three water-related projects: a porous pavement project in the Burns Park neighborhood, a rain garden on Kingsley Street, and a level-of-service study of the city’s water system.

The council also received a presentation from the director of the Ann Arbor District Library, Josie Parker. Highlights included data on the more than 600,000 annual visitors to the library’s downtown location.

Ward Boundary Changes

The council was asked to consider a proposal to redraw the boundaries of the city’s five wards and to make the new ward boundaries effective after the Aug. 2 city council primary elections, but before the Nov. 8 general election. Most of the boundary changes involved reassigning Ward 1 areas to other wards to balance out the population among the city’s five wards.

By the numbers, if the 2010 census population were distributed perfectly evenly across the city’s five wards (pie-shaped, per the city charter), they would each have a population of 22,787 – the “ideal” number in redistricting terms. Without any redistricting, the imbalance among wards, due to relative population growth in Ward 1 since 2000, breaks down as follows: Ward 1 [24,616 population, +1,829 whole number deviation from ideal (+8.03%)]; Ward 2 [22,419, -368 (-1.61%)]; Ward 3 [22,206, -581 (-2.55%)]; Ward 4 [22,585, -202 (-0.89%)]; Ward 5 [22,108, -679 (-2.98%)].

In 2000, the variance from the ideal for each ward ranged between +1.5% and -1.5%.

As proposed, the city’s redistricting plan would yield the following breakdown: Ward 1 [22,795, +8 (+0.04%)]; Ward 2 [22,739, -48, (-0.21%)]; Ward 3 [22,919, +132 (+0.58%)]; Ward 4 [22,760, -27 (-0.12%)]; Ward 5 [22,721, -66 (-0.29%)]. To restore the balance in the wards, the redistricting proposal focuses on reassignment where the five wedges of ward pie meet, in the center of the city near the downtown. [.pdf of city of Ann Arbor proposed ward boundary changes ] [.pdf of ward boundary changes proposed by councilmember Sabra Briere]

As far as the timing of the boundary change goes, the apparent thinking on the part of the city attorney’s office, which led to the proposal before the council, was that unless this change were made before the general election, the city would be in violation of the state of Michigan’s Home Rule Cities Act 279 of 1908 [emphasis added]:

117.27a Apportionment of wards; definitions.
…
(4) In each such city subject to the provisions of this section the local legislative body, not later than December 1, 1967, shall apportion the wards of the city in accord with this section. In subsequent years, the local legislative body, prior to the next general municipal election occurring not earlier than 4 months following the date of the official release of the census figures of each United States decennial census, shall apportion the wards of the city in accord with this section.

[Previous Chronicle coverage: "Column: Ann Arbor Ward Shifts Should Wait"]

Ward Boundary Changes: Public Commentary

Public commentary included remarks from John Shea – a representative of the Washtenaw branch of the lawyer’s committee for the American Civil Liberties Union – and local attorney Tom Wieder. County clerk Larry Kestenbaum attended the meeting, but did not sign up in time to be included among the first 10 reserved speaker slots. Reserved commentary slots are assigned on a first-come-first-served basis.

Wieder told the council that it’s not always the case that common sense and legal analysis lead to the same place, but they do in the case of the proposal before the council: The council should not change the boundaries between the primary and the general election. It’s a matter of basic fairness that every person should be treated the same. The courts understand that idea and so do the councilmembers’ constituents, Wieder said. Changing the boundaries in the middle of the process is not in the interest of fairness.

Wieder summarized some of the case law on the issue by saying that orderly election processes are not to be disrupted – the courts have said that common sense must apply. From a practical view, he said, if the council does not change the boundaries between the primary and the general election, the city will likely not be sued. And if the city were sued [based on the idea that the city did not adhere to the Home Rule Cities Act and that it left the wards in a disproportionate state for an election cycle], it’s unlikely that the suit would be successful.

But if the council did change the boundaries between the primary and the general elections, it was likely a lawsuit would be filed and it would likely be successful, and that would cost money, Wieder cautioned. Changing boundaries between the primary and the general election would make the city of Ann Arbor’s elections be seen as less legitimate, Wieder said. The common sense solution would be to adopt new boundaries before Nov. 8, but not put them into effect until after the election. That way, the council would meet the strict letter of the statute, but avoid disruption of the process and preserve respect for city elections.

Speaking on behalf of the Washtenaw branch of the American Civil Liberties Union, Shea told the council he’d sent them a letter detailing the ACLU’s opposition to the boundary changes. He made clear that it’s the effective date, not the lines on the map, to which the ACLU objected.

The first objection was based on the idea that when candidates file petitions, they do so with a clear electorate in mind. Changing boundaries could skew who wants to be a candidate in an election. A second consideration is that if a councilmember or a challenger had barely enough signatures on a nominating petition, if some of those signatures were from residents of a different new ward, that could invite challenges. A third consideration is that it would disenfranchise hundreds of voters.

Given the political realities of Ann Arbor’s heavily Democratic electorate, the primary election practically equates to the general election, Shea said. So for people who are redistricted from a ward without a primary into a ward that had a primary but no contested general election, they’ll have no choice in their city council representation. Shea said he had no doubt the proposal had been put forward in good faith. Although everyone knows that redistricting processes can be used for partisan purpose, he didn’t think that was the case here. Still, 10-20 years from now that might become the case. And in the interim, it sets a bad precedent, and that ought to be avoided. The guiding principle of equal protection is rationality. He concluded by encouraging the council to do what is rational.

Kestenbaum handed out copies of a statement to councilmembers. It was made also on behalf of the state elections director Chris Thomas and the county election director Matt Yankee. It urged the council to delay the boundary changes until after the general election:

The proposed boundary changes are minor, but what if they weren’t? There is no bright line between minor changes and changes which have a political impact. And even minor changes will have an impact on the affected voters.

Ward Boundary Changes: Council Deliberations

Marcia Higgins (Ward 4) got things started by offering an amendment to the resolution stating that the ordinance would take effect on Nov. 9, 2011, the day following the general election.

Sabra Briere (Ward 1) said she was happy to support the amendment but would be willing to make the effective date the start of a month, to make it nice and round. Higgins said her point was to make it after the general election, so she did not have problem with Dec. 1.

Carsten Hohnke (Ward 5) said he was happy to support the amendment. He understood the concern that prompted the original proposal to change the boundaries prior to the general election. But he felt it’s fairly clear that if the boundaries were changed before the general election, “we miss the forest for the trees.” He said it’s important to make sure voters are enfranchised and felt that there is greater risk in moving forward with new boundaries before the general election than in waiting. Christopher Taylor (Ward 3) also indicated his support and appreciated the way the people who brought the issue forward had done so.

Stephen Kunselman (Ward 3) ventured that his ward would probably be one of those that would would be most affected, so he supported the amendment. [Kunselman faces two challengers in the Ward 3 Democratic primary.]

Outcome on the amendment changing the effective date to Dec. 1: The council voted unanimously to approve the Dec. 1 effective date.

Higgins then noted her disappointment at not being able to attend the June 13 city council working session about how the wards were proposed to be reapportioned. She still had some questions about how the process was working. Noting the city charter requirement that wards be roughly the shape of wedges in a pie, she said that Ward 4 [the one she represents] couldn’t be any more of a “log jam.” She said she’d worked on reapportionment 10 years ago with four other councilmembers. [At that time, Higgins was a Republican – she now is a Democrat.]

At that time, the group had wondered when the city would ever do what the charter states, Higgins said. She was disappointed that the council still hasn’t done that. The new township islands that are likely to be annexed will also be a factor. She said she’d like to see the city staff take a stab at making wards more pie-shaped, given that there was now some additional time to work on it.

Higgins moved for a postponement of four weeks until Aug. 4.  Mayor John Hieftje confirmed with assistant attorney Abigail Elias that this would not cause any problems.

In a back-and-forth between Briere and Higgins, it was confirmed that councilmembers could be consulted in some fashion by the staff, as the proposed ward boundaries are developed.

Taylor said he was unclear about the direction to be given to the staff and wondered what Higgins’ view was of “pie-shaped.” Higgins restated that the charter says the wards should be pie-shaped and the direction to the staff is to ask them to look at the charter. Taylor indicated that he felt the proposed redrawing satisfies the charter, so he would vote against a postponement. Hohnke said he’d be happy to support postponement, because no harm results from it.

Outcome: The council voted to postpone the boundary changes. Dissent came from Taylor. Before the postponement vote, the council had amended the ordinance to make the changes that they eventually agree on effective on Dec. 1, after the Nov. 8 election.

Revote on Sewer Project

Mike Anglin (Ward 5) made a motion to reconsider a June 20, 2011 vote that the council took in awarding a $1,216,100 construction contract to Hoffman Brothers Inc. The project involves relocating a sanitary sewer south of Fuller Road, and east of the Maiden Lane and East Medical Center Drive intersection.

The project includes moving and replacing an 825-foot, 30-year-old section of 60-inch sanitary sewer pipe. It also includes construction of 525 feet of 24-inch stormwater pipe, as well as construction of 925 feet of a new 12-inch water main for service to Fuller Pool. The water main portion of the project will be completed in two phases, the second of which is planned for 2013.

Anglin’s effort to reconsider the motion was based on criticism that the work is being undertaken only because of the planned Fuller Road Station (FRS) in the area – a project  to which he has expressed opposition. Proposed in partnership between the city and the University of Michigan, it calls for construction of a large parking structure, bus depot and possibly an eventual train station. [Recent Chronicle coverage of that project: "PAC Gets Update on Fuller Road Station"]

The motion to reconsider came in the context of a memo written to the council by Dietrich Bergmann, a transportation planning engineer who participated in a 2008 University of Michigan Sustainable Mobility & Accessibility Research & Transformation (SMART) conference on the transportation economy. The memo is critical of several aspects of the proposed sewer work, including the idea that 30 years is old for a sanitary sewer: “The city staff has not provided any evidence that the sanitary drain at the site should be moved, absent going forward with the FRS project. The 30-year age issue makes little sense. I suspect that most sanitary sewers in Ann Arbor are older.” [.pdf of Dietrich Bergmann memo]

Revote on Sewer Project: Public Commentary

In addition to sending an emailed message, Dietrich Bergmann also spoke during public commentary to address councilmembers about the issue.

The reason he was asking the council to reconsider their previous vote is that the fundamental project has not yet been approved by the city council, Bergmann said.

If the council did not know if the city is going to proceed with Fuller Road Station and the parking structure, then it did not make sense to do the work now. He summarized the significance of the schematic he’d provided as an attachment to the letter. On the schematic, pink is sanitary sewer, green is storm sewer, and blue is the water main. Neither the green nor the blue lines are usable until additional work is done, he said. So there’s no point in doing it now – it should be done later.

George Gaston told the council he would spare them his prepared remarks. He wanted to simply stress that there is now a website that details what is going on with the Fuller Road Station project and he would like people to have a chance to see it: protecta2parks.org Other people will talk about the sewer relocations – he hoped the issue will be reconsidered.

James D’Amour told councilmembers that he was once again before them to speak. He said he had a swim meet the next day in Detroit and had not practiced, so he was a little cranky. About Fuller Road Station, he said, ”Let’s call it what it is.” He characterized Fuller Road Station as a parking structure for the University of Michigan hospital expansion. He’d read that 500 new jobs are coming to Mott Children’s Hospital, and that’s not necessarily a bad thing. As the council looks at the reconsideration, he suggested looking at it in the full context. He allowed that the council was probably favorably disposed to the project, but it needs to be discussed in all its dimensions. The council needs to take a step back, he said. “You’re voting on something before you know what you want to do,” D’Amour cautioned.

Ann Larimore expressed her deep concern about spending $1.2 million on the utilities relocation. Her concern about the expenditure led to looking at the project in context of the city’s stated goals of increasing sustainability and the environment. A 1,000-space, 5-story parking structure will bring thousands of cars into Ann Arbor, she said. The option of using shuttle vans plus peripheral parking lots should be explored instead. Building the parking structure is not in keeping with sustainability, she said. She noted that the mayor annually hosts a green fair, the city is proud of its urban forest and its parks, and the university has launched a campaign for sustainability. In that context, she wondered if building a 1,000-car parking lot could be justified

Revote on Sewer Project: Deliberations – Reconsideration

From a parliamentary point of view, what Anglin was requesting was a reconsideration of a previous vote. Only those who voted on the prevailing side of a vote may make such a motion.

Anglin told his colleagues that he was bringing forward the reconsideration in order discuss with councilmembers what he’s heard from the community about questions to which he doesn’t have answers. He said he’d voted for the contract on June 20, thinking it was related to flooding conditions on the city’s northside. Now he realized the project is for water utilities at the Fuller Road Station site. And in light of an upcoming July 11 work session on that topic, he was hoping other councilmembers would join him to postpone the utilities work. He noted that the city’s park advisory commission had been updated, but the infrastructure project was not discussed by that body.

In response, mayor John Hieftje rejected the idea that there was a work session scheduled on Fuller Road Station, and confirmed with interim city administrator Tom Crawford that there was no new information about Fuller Road Station to provide at such a session.

The issue with the work session stems from an expectation that the council’s addition to its calendar of the July 11 work session would include a presentation on the Fuller Road Station. From previous Chronicle reporting:

At its June 20, 2011 meeting, the Ann Arbor city council revised its calendar for the year to include a work session scheduled for July 11. While the staff memo accompanying the resolution indicates only that the additional session is due to “numerous activities developing in the city,” a likely topic to be addressed at the July 11 session is the city’s proposed Fuller Road Station.

…

At the council’s June 6 meeting, the Fuller Road Station had received extensive public commentary, despite the lack of any item on the agenda related directly to the project.

Partly in response to that commentary and to remarks from Mike Anglin (Ward 5), at that meeting Sabra Briere (Ward 1) pushed for a city council working session on the project. From The Chronicle’s report of that meeting: “Sabra Briere (Ward 1) anticipated mayor John Hieftje’s reaction to Anglin’s comments [Hieftje has pushed hard for the project] by telling the mayor that she knew he had a lot of thoughts about Fuller Road Station. But she thought the council should have a working session, so that councilmembers can become more knowledgable about the issue. Hieftje indicated that he would look into adding something to the calendar.”

When the work session was added, many people, including some councilmembers, concluded that the work session would include Fuller Road Station. As of July 10, no agenda had been posted for the July 11 working session.

The council then considered the motion that the previous vote be reconsidered. Before the meeting there was some speculation that the motion would not receive a seconding motion and would die for lack of a second. But Stephen Rapundalo (Ward 2) offered a second.

Outcome on the motion to reconsider: The council voted unanimously to reconsider the motion to approve the contract.

Revote on Sewer Project: Deliberations – Substance

Anglin led off the discussion by saying he realized it’s out of the ordinary to reconsider the vote. However, on the previous June 20 vote, he thought the resolution to award the contract concerned an area of the city that had experienced mudslides and water damage. The item had inadvertently slid through, he said. If he had known at the time what the resolution was about, he said he would have raised questions.

By way of background, the second line of the staff memo on the resolution states:

The Northside Interceptor Sanitary Sewer Relocation Project is located south of Fuller Road and east of the intersection with Maiden Lane and East Medical Center Drive.

From The Chronicle’s summary of the park advisory commission meeting of May 17, 2011, which Anglin attended as a council representative to PAC:

After the council gives approval, the city would start immediately with work to relocate utilities on the site – bids have already been secured, [city transportation manager Eli Cooper] said. That might start in June or July, although there’s no firm date for council approval.

At the council’s July 5 meeting, Anglin characterized the sewer relocation as putting infrastructure repairs into the future site of the proposed Fuller Road Station. He expressed concern about moving forward on a project that the council has not agreed to. He said the work sessions have been informative on phase one – the parking structure – but not on phase two, which would include a train station.

Sabra Briere (Ward 1) told the council she wanted to to address some details and provide some information based on answers to a set of questions she’d sent to city staff.

Some key points from those answers: (1) the 60-inch pipe is a sanitary sewer and deals with human waste; (2) the sanitary sewer portion of the project serves nearly all residents on the city’s north side; (3) city staff acknowledges that if the Fuller Road Station were not being built, the relocation of utilities would not be as high a priority as it is; (4) starting work now would allow the work to be completed by mid-November 2011, which would allow the replacement of the adjacent soccer field next year, instead of delaying another year; and (5) the pipe, which leads under the river, has greater potential for problems due to the high volume of the flow and the turbulent nature of that flow.

In subsequent deliberations, Cresson Slotten – unit manager for the city of Ann Arbor’s systems planning unit – noted that it’s “not a nice, pretty flow, either.” He clarified that the issue is the potential for “scouring” along the bottom of the pipe and that it would gradually be eroded. Part of the project involves installing access panels so that the condition of this critical pipe can be monitored.

After laying out the additional information she’d received from staff, Briere then contrasted her position with Anglin’s. Two weeks ago, she said, she knew what she was voting on. She’d read her packet of background materials provided for that meeting and knew the pipes ran across the Fuller Road Station site. The fact that staff was recommending moving and beefing up the utilities shouldn’t be surprising. She was less inclined to change her vote, she said, because at the previous meeting, “I knew what I was doing.”

Rapundalo, too, said he was happy to have the discussion, but it had been very clear at the previous meeting what was being proposed. He characterized it as an infrastructure improvement that would benefit the new University of Michigan children’s hospital. It was first and foremost an infrastructure in the city’s capital improvement plan (CIP) that the council had previously approved, he said, so he couldn’t support changing his vote.

Hieftje reiterated Briere’s information that completing the work this year means the soccer field replacement can be done in 2013. The utilities work was going to be done anyway, he said, and would benefit 40,000 residents. He also reiterated Rapundalo’s point about the children’s hospital coming online.

Tony Derezinski (Ward 2) said he wanted to compliment Anglin on his candor – it took a lot to say, “Gulp, I missed it.” He acknowledged the question about whether the utilities relocation is really only about the Fuller Road Station and whether the utilities work is just the beginning of “a rear guard action.” He said he was not at the council meeting when the first vote was taken, but said the staff information was good. He noted that he was getting a chance to vote on it in a roundabout way.

Carsten Hohnke (Ward 5) said he was happy to support the discussion for the sake of understanding the item. He said that on the previous vote, he, too, felt comfortable about what the council was acting on. Early in the text of the staff memo, he noted, was a specific reference to the location of the project along Fuller Road. It’s a mild shift in priority, he said, whether it happens this year or next. It seems like a no-cost option for the ability to consider FRS down the line, and he would not support the postponement, he said.

Stephen Kunselman (Ward 3) pointed to the staff’s acknowledgment that the utilities relocation project had been moved up in priority. So he wanted to know what got moved down. Slotten allowed that off the top of his head none came to mind. The project went through prioritization last fall and winter, he said. Kunselman pressed for any projects that were being deprioritized as a result of this project. Slotten indicated that he couldn’t say for sure if other projects were deprioritized.

Kunselman asked Slotten to describe the infrastructure project’s basic design. The items that are included in the project are in there because of their relationship to one another, Slotten said: a single contractor with the same equipment can more easily work on stormwater, drinking water and sanitary sewer in the same general vicinity. As for the sanitary sewer specifically, it’s been laid out to take Fuller Road Station into consideration. To put it in one location and then move it – that’s not doing a good job of management, Slotten said.

Kunselman drew out the fact that the stormwater aspect of the project would serve the surface parking lot currently at the site, but only later would add flow. His concern was that the project would to some degree make infrastructure improvements that would sit idle. [Essentially, Kunselman was pressing the same kind of issue that Bergmann had raised during public commentary.] Slotten told him that the sanitary sewer part of the project would be active immediately on completion.

Kunselman said he understood Anglin’s issue, because there was not a direct communication in the packet about the project’s connection to preparation for the Fuller Road Station.

Anglin wondered what the risk would be to allowing the utilities to remain in place as they are – right now, those utilities are operating efficiently, he contended. He wondered if the council was now starting a project that the entire council hadn’t agreed to, referring to Fuller Road Station. He called it a “wading in” approach.

Responding to Anglin, Slotten said that the project would extend fire hydrant coverage down the roadway on Fuller Road – there’s currently a gap in fire hydrant coverage with respect to car fires. On the sanitary sewer side, the 30-year age of the pipe had to be put in the context of the amount of flow through the pipe. It’s at a high volume and it’s very turbulent. The pipe can thus be susceptible to scouring and would be worn out from the inside out. By having access panels in the new pipe, the city will be able to monitor that better, he said.

Briere drew out from Slotten why simply lining the sanitary sewer pipe, instead of replacing it, was not a feasible option.

Anglin reiterated his objections, saying that the council was dealing with a park, which is a sensitive area. To him, he said, it seems to be site preparation for the Fuller Road Station. As far as the access panels for monitoring, he said, the city has cameras for doing those kinds of inspections, so he was “not buying that argument at all.”

Outcome: The council voted again to approve the contract for the utilities work, but this time with dissent from Anglin.

Contract Increase for Recycle Ann Arbor

On the July 5 city council agenda was a proposal to increase the payment that the city makes to Recycle Ann Arbor (RAA) for curbside collection of the city’s single-stream recycling carts – from $3.25 to $3.55 per month per cart.

The city council had voted on March 15, 2010 to adopt the single-stream recycling program, which began exactly one year ago, on July 5, 2010.

At that time, the city approved a contract with RAA that called for a payment of $3.25 per month per cart that RAA empties, plus a per-ton payment of between $18.74 and $30.00. The amount of revenue RAA has received through these two kinds of revenue was less than projected last fiscal year. Specifically, the tonnage payments received by RAA for fiscal year 2011 (which ended June 30, 2011) for recyclable material were projected to be $406,332. In fact, tonnage payments only generated $187,560 for RAA – 46% of what was expected. The shortfall was $218,772.

Also, the city expected to distribute 32,779 carts, but only 29,734 carts were deployed, or 9.3% fewer than planned. The staff memo accompanying the resolution explained the reduced number this way: “… many of the smaller multi-family residential units that were previously using the 11-gallon recycling ‘totes’ are able to share recycle carts, resulting in a smaller number of deployed carts.” In terms of revenue, the reduced number of carts meant that RAA received only $1,159,626 compared to the projected $1,278,381 – for a shortfall of $118,755.

Summing the shortfalls in the two kinds of revenue ($118,755 + $218,772), RAA received $337,527 less than it expected for FY 2011. The increase in the monthly per-cart service fee requested (but rejected by the council) – for all five years of the five-year contract – would have worked out to nearly cover the annual shortfall that was due only to the decreased number of carts: $107,042 versus $118,755.

The overly-optimistic projections were made by the city’s recycling consultant – Resource Recycling Systems – and RecycleBank, a company that administers a coupon-based incentive program to encourage residents to recycle. When the council approved the single-stream recycling contract with RAA last year, it also struck a 10-year deal with RecycleBank, at roughly $200,000 per year, to administer their coupon-based incentive program to help boost recycling rates in conjunction with the single-stream rollout.

At the time, Stephen Kunselman (Ward 3) questioned the length of the RecycleBank contract, and established in the course of deliberations that the city’s opt-out clause would be less costly than the cost of the contract. He was concerned that the city had options in the event that RecycleBank’s incentives did not boost recycling tonnage to the levels that were forecast. [Chronicle coverage: "Council Banks on Single-Stream Recycling"]

As of May 2011, roughly 10,000 out of 23,600 (42%) households have signed up for the RecycleBank program. The city is nine months into the contract, which started September 2010. The termination clause allows the city to end the contract with 30 days notice if funds are not appropriated. However, the contract was presumably funded through FY 2012 as a part of the budget the council adopted in May this year.

Outcome: The council voted 5-4 to increase the amount of the contract, which meant it fell short of the six votes it needed to pass. The vote was made without any deliberations. Voting against it were Stephen Kunselman (Ward 3), Carsten Hohnke (Ward 5), Mike Anglin (Ward 5) and Sabra Briere (Ward 1).

Non-Disclosure on Medical Marijuana

Before the council for consideration was approval of a non-disclosure policy on information that the city might collect as part of its medical marijuana licensing and zoning ordinances. The council approved those ordinances at its June 20, 2011 meeting. In relevant part, the resolution states that a long list of various kinds of information “shall be protected against public disclosure in the course of the zoning and licensing process …”

The resolution was also amended to read: “Ann Arbor city staff shall treat the foregoing information as exempted from disclosure …”

A similar non-disclosure policy had been discussed, but postponed, at the council’s March 7, 2011 meeting. When the matter was before the council again, at its March 21, 2011 meeting, the council chose not to pursue that non-disclosure policy. That’s because the amendments to the medical marijuana legislation it approved on March 21 did not include the collection of personal information. So the resolution had been withdrawn by its sponsor, Sabra Briere (Ward 1).

Non-Disclosure on Medical Marijuana: Public Commentary

Not all of the public commentary regarding medical marijuana related specifically to the non-disclosure policy on the agenda, but it fits most naturally into this section of the meeting report.

Gersh Avery said he wanted to let the council know he understands there are supporters among them. He has a sense that people are concerned about the increase in marijuana use in the community. He said he doesn’t believe anyone is trying to attack patients. With respect to the confidentiality section of the ordinance, he noted that former attorney general for the state of Michigan, Mike Cox, had issued an opinion when he was still AG, because he was concerned about farming out the printing of patient and caregiver registry cards. The new attorney general, Bill Schuette, has expressed a similar concern. He cautioned councilmembers that they were essentially asking people to photocopy their information and hand it over.

Charles Ream – alluding to his frequent appearances before them to speak on issues related to medical marijuana – quipped that perhaps soon they’d have a meeting where councilmembers didn’t get to see him. Describing Briere’s proposed non-disclosure policy, Ream said it’s really important: “Let’s do it.” He noted that the policy is what the law says already. He contended there was a discrepancy between the licensing and the zoning: home occupations do not require licenses, but they require zoning compliance permits. People won’t participate in the program if the requirement for zoning compliance permits remains part of the code, he said.

Matthew Abel told the council that he was there as legal counsel on behalf of Rhory Gould with Arborside Health and Wellness. He said he supported the non-disclosure policy, but wanted to speak about the number of licenses allowed by the city’s ordinance. He cited the ordinance language on the cap to the number of licenses:

7.502 (4) The first year’s licenses shall be capped at a number 10% higher than the number of complete applications for licenses submitted to the City in the first 60 days after the effective date of this chapter, but not more than 20 medical marijuana dispensary licenses shall be issued in the first year. Any license terminated during the license year returns to the City for possible reissuance.

He asked if 10% of 15 or 18 would be considered one or two? When the language goes on to say “not more than 20,” it seems that it rewards the “cowboys” who went ahead and started businesses, and penalizes those who waited, Abel said.

He also pointed to the language about the issuance of licenses [emphasis added]:

7:505. Issuance of License. If the applicant has successfully demonstrated compliance with all requirements for issuance of a license within 10 weeks (70 calendar days) after the date of City staff’s official confirmation that the application for a license was complete, the city administrator or designee shall grant renewal of an existing license or issue a new license for a medical marijuana dispensary to the applicant if a license is available.

That sounds like a first-come-first-served approach, he said, and that’s why there’s someone standing in line outside city hall waiting for a license. A different mechanism needs to be created for that, he said. Otherwise, he’d have to advise his client to stand in line.

Non-Disclosure on Medical Marijuana: Council Deliberations

Briere led off the discussion by saying that during the last three weeks, since the council had approved the zoning and licensing ordinances, they’d heard from many people about the requirement of a zoning compliance permit. She stressed that this requirement in the zoning regulations is what is required of all home occupations. The council was careful, she said, not to make the requirements any different for medical marijuana home occupations. Still, she said, there was concern about the compiling of lists and making them available. She said she thought the exemptions in the Freedom of Information Act (FOIA) were sufficient to give direction. But she said she also believed in a “belt and suspenders.”

Briere reminded her colleagues that a similar proposal was before them at the March 7 meeting, but she had eventually withdrawn it.

Stephen Kunselman (Ward 3) wanted to know how the resolution overrides the law. Assistant city attorney Abigail Elias indicated that the way she read the resolution was for the city to treat the information consistent with state law. There’s no overriding, said Elias.

Briere offered as a point of clarity that the city would indeed continue to require zoning compliance permits of medical marijuana-based home occupations, but the information wouldn’t be subject to required disclosure under the Freedom of Information Act unless the state law changed. Under the proposed resolution, the information on zoning compliance permits remains private, Briere concluded.

Christopher Taylor (Ward 3) indicated he understood the intent of the resolution: The city will treat the information as exempt. The way it’s drafted is that it’s already the law, and he didn’t mind it being restated. But he asked for additional clarification. Elias indicated that the resolution can’t create a privacy protection, but gives direction to city staff to consider it in connection with the request for documents.

Taylor observed that as drafted, the resolution is not a direction to the city’s FOIA officer, which seems like what the council is trying to do. Taylor said that’s all well and good, and he agreed that it should be so, but he wanted to amend the language “on the fly.” He offered first something along the lines of: “Ann Arbor’s Freedom of Information Act officer shall treat the foregoing information as exempted from disclosure …”

Briere responded by agreeing that the FOIA officer should be directed, but she wondered about including other city staff. The final version of the amendment was: “Ann Arbor city staff shall treat the foregoing information as exempted from disclosure …”

Outcome: The non-disclosure policy passed on a 6-3 vote. Dissenting were Marcia Higgins (Ward 4), Tony Derezinski (Ward 2) and Stephen Rapundalo (Ward 2).

It’s worth noting that withholding information under the Freedom of Information Act is optional. The resolution approved by the council appears to confirm only that the information meets the criteria for exempting it from disclosure, but does not establish an administrative policy that states the city will not disclose that information.

In broad strokes, the FOIA says that public bodies must produce information upon request. But certain exemptions apply. The two FOIA exemptions relevant to the council’s discussion include one that allows a public body to withhold information that would represent an unwarranted intrusion on someone’s privacy, and another that allows a public body to withhold information if an exemption is provided by some other statute [emphasis added]:

15.243 Exemptions from disclosure …
Sec. 13. (1) A public body may exempt from disclosure as a public record under this act any of the following:
(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy. …
(d) Records or information specifically described and exempted from disclosure by statute.

The operative verb is “may,” which means that while a public body can choose to withhold certain information, it is not required by the FOIA to withhold it. The attorney general’s outline of the FOIA statute affirms the withholding of information as optional: “A public body may (but is not required to) withhold from public disclosure certain categories of public records under the Freedom of Information Act.” The attorney general’s outline was last updated a decade ago, but the AG’s office has confirmed for The Chronicle that the document is still accurate – in the intervening period, no changes have taken place in the statute or with case law.

Deputy Police Chiefs Labor Agreement

Before the council for consideration was authorization of a collective bargaining agreement with its deputy police chiefs. It’s a one-year deal, expiring June 30, 2012. As part of the deal, the deputy chiefs are exempt as employees under the federal Fair Labor Standards Act, which means they are not eligible for overtime. The deputy chiefs will also continue on the same health care plan as non-union employees, which requires a contribution by the employee.

In adding the item to the agenda that night, Stephen Rapundalo (Ward 2), who is chair of the council’s labor committee, lamented the fact that the much larger police officers union had voted down a contract with similar provisions to those accepted by other bargaining units and the city’s non-union staff.

Outcome: The council voted unanimously to approve the deputy chiefs collective bargaining agreement.

Water-Related Projects

Councilmembers were asked to approve several water-related items.

Water-Related Projects: Permeable Surface Alley

On the agenda was a permeable surface alley project in the Burns Park neighborhood – the alley connects Wells Street and Scott Court, running parallel to and between Lincoln Avenue and Martin Place. The porous pavement will allow rainwater to soak through the surface, reducing runoff. Money for the $121,139 contract with Audia Concrete Construction Inc. on the $200,000 project will come from the city’s stormwater capital budget. But that will be repaid as a loan from the State Revolving Fund (SRF) and will include 50% loan forgiveness. The use of stormwater funds on road construction was a practice that was criticized during the public hearing held at the council’s June 20, 2011 meeting, on the increase in stormwater rates.

Outcome: The council voted unanimously to approve the Audia Concrete contract.

Water-Related Projects: Rain Garden

The council also approved a $25,440 contract with Conservation Design Forum to design and construct a rain garden on the property at 215-219 W. Kingsley St. The rain garden is meant to alleviate some of the flooding that occurs there during heavy rains. The parcel has drawn the curiosity of Chronicle readers due to its boarded-up house and the prodigious amounts of water that accumulate there during heavy rains. At its Nov. 15, 2010 meeting, the council accepted a FEMA grant that will help pay for the demolition of the structure to aid stormwater remediation efforts.

Originally part of the consent agenda (a set of items that are moved and voted on as a group), the rain garden was pulled out for separate consideration by Sabra Briere (Ward 1). Conversation between Briere and Jerry Hancock, the city’s stormwater and floodplain programs coordinator, revealed that the land parcel would be back before the council for actual purchase. Currently the house is not habitable. FEMA is paying 75% of the cost for demolition.

The idea is that instead of filling the hole back in, the city will use the space to alleviate the flooding, Hancock said. The scale of flooding in the area is greater than the area of the house, but the rain garden should provide some relief for some of it, he said. The timing was such that the grading plan for the rain garden would be provided to the demolition contractor. Hancock said he hoped the demolition would take place this fall.

Outcome: The council voted unanimously to approve the contract with Conservation Design Forum.

Water-Related Projects: Level-of-Service Study

The council also approved a level-of-service study for its drinking water distribution system with AECOM. The outcome of the study will be a recommendation for a sustainable level of service for the city’s water distribution system, and determination of how much investment it would take to achieve that level. The study would also help the city decide, for example, which water mains should be replaced first.

The council had tabled the resolution at its May 16, 2011 meeting after amending out a $10,550 contingency in the $208,984 contract. Later in that same meeting, at a session reconvened on May 31, the council took the item up off the table and postponed it until July 5.

In support of the study, city staff prepared additional documentation for the July 5 vote.

Outcome: The council voted unanimously to approve the contract with AECOM.

Design Board Review Fee

The council was asked to consider approval of a fee for the city’s new design review process, which is now part of the city code. Projects in Ann Arbor’s downtown area, zoned D-1 and D-2, are now subject to a mandatory process of design review, but compliance with the board’s recommendations is voluntary.

The application fee was proposed at $1,000 – to cover estimated mailing costs of $500 and about five hours of city staff time.

The vote on the fee had been postponed at the council’s June 20 meeting. At that same meeting, the council also had confirmed the nominations for initial membership of the design review board: Tamara Burns, Paul Fontaine, Chester B. Hill, Mary Jukari, Bill Kinley, Richard Mitchell, and Geoffrey M. Perkins.

On July 5, Marcia Higgins (Ward 4) led off discussion by saying she wanted to reduce the fee to $500. It’s a new processs, she said, and most of the review is done by the board, not by staff.

Tony Derezinski (Ward 2) asked Wendy Rampson, head of planning for the city, how the $1,000 cost was determined. Rampson explained that part of the cost arose from mailings to people to invite them to the meeting. She estimated it took an hour of staff time to put together the mailing list. For the first meeting that the board had convened, the staff spent a couple of hours at the meeting, plus subsequent time putting together the design review board’s report and posting it on the web.

Rampson concluded that five hours is fairly realistic. She offered that staff could track that time for the next year. She noted that the fee [having been postponed by the council at its previous meeting] wasn’t passed in time to capture any of the costs associated with the board’s review of The Varsity at Ann Arbor.

Outcome: The design board review fee was set at $500. On the voice voice, Carsten Hohnke (Ward 5) dissented, but did not offer any comment at the council table.

Retirement Benefit Technical Changes

Before the council for consideration was final approval to purely technical changes to its ordinance on retiree benefits for non-union employees. For example, the phrase “three years” was revised to read “36 consecutive months.”

During the public hearing on the issue, Thomas Partridge voiced his opposition to the changes, characterizing them as the downgrading of Ann Arbor retiree benefits. He admonished mayor John Hieftje that Hieftje, as a teacher at the University of Michigan, should understand the connection between political and social issues.

Outcome: The council approved the changes without discussion.

Parks Renovation Projects

On the agenda were two items that had been discussed and recommended by the city’s park advisory commission at that body’s June 21, 2011 meeting.

One was a $166,331 contract with ABC Paving Company to renovate the tennis courts at West Park. The second was a $119,700 contract with Construction Solutions Inc. to renovate locker rooms at Veterans Memorial Park pool.

The council did not deliberate on the items, but at the PAC committee meeting, commissioners had questions about the lack of additional bidders on the tennis court project. Only one firm had responded to the city’s request for proposals.

Outcome: The council approved both parks renovation projects.

Closed Session: Land Acquisition

Near the conclusion of the meeting, some confusion unfolded about whether there would be a closed session.

The council had reportedly planned to convene a closed session on the subject of the ward redistricting, citing attorney-client privileged communication. It did not follow through on that possibility. If the council had convened such a closed session, it would have been the first such session convened since being sued by The Chronicle over a similar session in early September 2010.

Marcia Higgins (Ward 4) indicated she did not see any closed session listed on the agenda. It was established that a closed session did, in fact, appear on the agenda. However, mayor John Hieftje told assistant city attorney Abigail Elias that he’d received communication from city attorney Stephen Postema (who did not attend the council meeting), to the effect that no closed session would be necessary. But Elias told the mayor that the session was in fact necessary, and that it involved land acquisition.

Land acquisition is within a narrow range of reasons for which a public body may hold part of a meeting out of public view, according to the Michigan Open Meetings Act (OMA). The OMA stipulates that a public body must vote to go into a closed session and that the vote be done in a roll call fashion – i.e. not as a voice vote as one group.

On the roll call vote, Higgins expressed her dissatisfaction by voting against the session, and Sabra Briere (Ward 1) joined her. When Stephen Rapundalo (Ward 2) added his no vote, the final tally was 6-3, which appeared just barely to satisfy the majority required for action. The council then retreated to their work room.

A few minutes later, a somewhat sheepish group emerged for a revote. The OMA requires that the vote to enter a closed session be at least a 2/3 majority of the members of the entire body, not just a 2/3 majority of those who are present. Although there are certain exceptions to the 2/3 rule for some closed session topics, land acquisition is not one of them.

On the second try, all councilmembers voted to go into the closed session on land acquisition, except for Higgins, who again dissented.

Ann Arbor District Library Update

As part of the scheduled introductions at the start of the council meeting, councilmembers received an update from Josie Parker, director of the Ann Arbor District Library.

Several representatives of the library attended the meeting in addition to Parker. Eli Neiburger, AADL’s associate director for IT and production, was in the audience, as were current board members Nancy Kaplan, Barbara Murphy, Prue Rosenthal, and Jan Barney Newman. Parker also pointed out to councilmembers Don Axon, who was one of the original AADL board members in 1996.

Parker told the council that the information in the presentation was “as upbeat and as positive as it can get.” She began by countering the idea that the Internet had eliminated the need and demand for libraries. Parker said that Ann Arbor proves that claim is patently false. She pointed to Ann Arbor’s recent ranking as the community with the highest per capita circulation: 59 items per capita. The listing was compiled from a 2008 national study by selecting the 549 libraries from that study that serve a population of over 100,000. Ann Arbor also ranked fourth on an Amazon list of most well-read cities. Ann Arbor was one of only two cities on both lists, Parker said. Portland, Ore. was the other one.

Parker emphasized the high number of active library card holders, compared with the total number of households in the community. In the 48103 area code, there are roughly 20,000 active card holders and around 23,000 households. That’s significant, she said, in the context of a system that requires a person to affirmatively obtain at library card – that is, they’re not automatically issued to everyone in the community.

Parker’s update included data on the impact of the library’s Fifth Avenue location on the downtown.

Other highlights of the presentation included the organization’s funding stream, which comes not just from the city of Ann Arbor property taxes. In fiscal year 2010, in addition to the $7,344,364 that the AADL received from Ann Arbor property owners, it also received taxes from Pittsfield Township ($1,849,036), Scio Township ($1,252,179), and Ann Arbor Township ($804,236), as well as other surrounding municipalities.

In 2010, 1,792,526 visits were made to the library’s five branches – 627,196 of them to the downtown location. In 2010, a total of 62,696 visitors attended library events – 23,612 of them at the downtown location. For those downtown events, 79% of attendees arrived to the event by car, compared with 7% by bus, 2% by bicycle and 12% by walking. Of those who drove a car to the event, half parked either at an adjacent surface lot or at the Fourth and William Street structure, and 31% used street parking.

If one-third of all 627,196 visits to the downtown library location are assumed to be made by people who pay to park downtown, then visitors to the downtown library in 2010 generated at least $200,000 in public parking revenue.

The presentation came in the general context of an effort by the Ann Arbor Downtown Development Authority, at the direction of the Ann Arbor city council, to start leading a public process to evaluate alternative uses for city-owned surface lots in the downtown area. Immediately to the north of the downtown library location is the construction site of an underground parking garage, expected to offer around 640 spaces. Known as the Library Lot, though not owned by the library, the top of the underground parking garage is one of the pieces of land that the public process is meant to address. [Recent Chronicle coverage: "Ann Arbor DDA Continues Planning Prep"]

Responding to Parker’s presentation, Carsten Hohnke (Ward 5) noted that she’d mentioned the Internet won’t result in the death of the library. He asked Parker to share with the council what the current mission of the library is, if it’s beyond books. Parker told Hohnke that the mission of the library is to guarantee public access to facilities for life-long learning, and that hasn’t changed. From the AADL website:

Vision Statement

The Ann Arbor District Library provides collections, programs, and leadership to promote the development of literate and informed citizens through open and equal access to cultural, intellectual, recreational, and information resources.

Mission Statement

The existence of the Ann Arbor District Library assures public ownership of print collections, digital resources, and gathering spaces for the citizens of the library district. We are committed to sustaining the value of public library services for the greater Ann Arbor community through the use of traditional and innovative technologies.

Parker pointed to two significant projects the library had undertaken in the past couple of years that have served that mission. First, AADL had agreed to absorb responsibility for the library for the blind to keep it from being eliminated by the county, which previously supported it. The library had also agreed to preserve the old Ann Arbor News archive to preserve the history of the community as reflected in the newspaper. If the library had not done that, she said, the material would be sitting in a warehouse somewhere.

The library’s commitment requires and uses technology, Parker said. The mission is still about literacy and learning – it’s just that there’s another way to achieve those goals. Hohnke asked if there was any discussion between the library and city about opportunities for consolidating services and for providing greater impact for tax dollars. Parker told Hohnke that this is something that former city administrator Roger Fraser was good about – making sure the Ann Arbor District Library was part of those opportunities. That will continue, she said. Parker pointed to some money saved for the city through the library’s collaboration with the city clerk’s office – the library provides space to test voting machines, and serves as a polling place. No one is reading about those kinds of things, she said, but the library does them.

Parker alluded to other services that libraries in other areas provide to their communities, which the AADL might also explore, but said she was not prepared to name them at that time. [.pdf of AADL slide presentation to the Ann Arbor city council]

Communications and Comment

Every city council agenda contains multiple slots for city councilmembers and the city administrator to give updates or make announcements about important issues that are coming before the city council. And every meeting typically includes public commentary on subjects not necessarily on the agenda.

Comm/Comm: DDA – Outside the District Investment

Stephen Kunselman (Ward 3) expressed his satisfaction that TIF (tax increment finance) reports from the Ann Arbor Downtown Development Authority had been located and submitted to the city clerk’s office. He’d previously complained that the Ann Arbor DDA had not complied with certain reporting requirements of the state’s DDA statute.

But another issue he’d identified, said Kunselman, was a statement on the state tax commission website, a substantial portion of which he then read aloud. From the statement:

Question: Can a DDA or TIFA plan spend revenue outside of its development area?

Answer: According to state law, the plan may spend revenue only for projects described in the development plan and/or tax increment financing plan, and the projects must be allowable under the law. The revenue must be spent for the benefit of the development area. Revenue of one plan may not be used to pay an obligation or expense of another plan. The State Tax Commission’s policy is that revenue must also be spent on improvements or properties located in the plan’s development area. …

The State Tax Commission may waive this requirement for certain infrastructure improvements made in the development plan that must extend outside the development area’s boundaries.

Kunselman said he was interested in finding out whether the Near North affordable housing project has such a waiver. He alerted his council colleagues that he had requested information on that issue.

By way of background, the question of spending TIF dollars outside the DDA district is not novel. The Ann Arbor DDA has its own explicit policy on affordable housing that allows for investment outside the DDA district. A resolution establishing the policy of investing in projects up to 1/4 mile outside the district was approved at the board’s March 4, 2009 board meeting.

When the question of outside-the-boundary investment has been posed at DDA board meetings, the legal position of the board’s legal counsel, Jerry Lax, has been characterized by staff and board members as essentially this: It’s not explicitly proscribed by the state statute. That’s reflected in the DDA renewal plan, which includes explicit reference to spending outside the district in at least two places.

In an effort to accomplish its mission, it is understood that the DDA may elect to participate in important projects outside the DDA District.
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…
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The funds allocated by the DDA are intended to strengthen the downtown area and attract new private investments. This Plan recognizes that solutions to downtown problems (for example, traffic, access, and parking problems) may best be developed by spending funds outside the DDA district.

Comm/Comm: Society in Peril

In the final turn at public commentary, held at the end of the meeting, Thomas Partidge told the council that society is in peril – the mayor and the council have not taken up the question of the immediate danger if Congress fails to come to an agreement on the budget by Aug. 7. Failure by the Congress to adopt a budget would leave a large cross-section of society in peril and at risk for robberies, holdups and murders, he said. Alluding to the city council’s recent approval of licensing and zoning ordinances for medical marijuana, Partridge contended that the city has taken on a campaign to increase drug use. When 911 is called, he claimed, people are too often met with a surly, dismissive response. It leaves the impression that the city does not have a working police department patroling the city.

Comm/Comm: General Disconent

In an earlier turn at public commentary, Thomas Partridge introduced himself as a Washtenaw County and Ann Arbor resident who is an advocate for those being left behind. He said he’s a Democrat dedicated to significant reforms. He supports the recall movement of Gov. Rick Snyder and other members of Snyder’s administration. We should not sit back and go backward in time, he said. The city had suffered undue losses, he said, including in the fire department, the police department, and the civilian work force. As part of the reapportionment of wards, Partridge contended that access to polls for seniors or disabled persons is not taken into consideration.

Comm/Comm: Huron River Day

The mayor handed out a proclamation recognizing Huron River Day on July 17, 2011.

Comm/Comm: Volunteer of the Month

Paul and Tyler Clark were recognized for their efforts in volunteering for the mayor’s annual green fair.

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

Absent: Margie Teall, Sandi Smith.

Next regular city council meeting: Monday, July 18, 2011 at 7 p.m. in the city hall’s second-floor council chambers at 301 E. Huron. [confirm date]