Ballot Questions: Parks, Public Art Funding

Ann Arbor city council debates proposals for Nov. 6 ballot

Ann Arbor city council meeting (Aug. 9, 2012) Part 1: Three questions were considered by the council for possible inclusion on the Nov. 6 general election ballot – two about parks and one about public art. The two parks questions were included on the council’s online agenda, which was available on Aug. 1. Details of their content had been publicly aired well in advance of that. The same was not true for the public art millage proposal.

Charter Amendment graphic

At its Aug. 9 meeting, the Ann Arbor city council considered three different charter amendments for inclusion on the Nov. 6 ballot. Two were for millages, and a third was for a restriction on the contractual powers of the city with respect to parkland.

The council voted unanimously to place on the ballot a renewal of the city’s parks maintenance and capital improvements millage at the rate of 1.1 mills. One mill is $1 for every $1,000 of taxable value on a property. So for a house worth $200,000, with a state-equalized value of $100,000, a 1.1 mill tax would cost that property owner $110 per year. A renewal would run from 2013-2018 and raise about $5 million next year.

Examples of park maintenance activities include forestry and horticulture, natural area preservation, park operations, recreation facilities, and targets of opportunity. Capital improvement projects would cover parks, forestry and horticulture, historic preservation, neighborhood parks and urban plazas, park operations, pathways, trails, boardwalks, greenways and watersheds, and recreation facilities. The city’s park advisory commission (PAC) had voted unanimously nearly two months ago at its June 19, 2012 meeting to recommend placing that millage renewal before voters.

But one day before the council’s Aug. 9 meeting, PAC had voted unanimously against recommending that another park-related question be placed on the ballot – one that would have asked voters if they wanted to amend the city charter to require a referendum to lease parkland for non-park or non-recreational use for longer than five years. PAC was able to consider a recommendation only because the council had postponed the measure at its July 16, 2012 meeting.

And at its Aug. 9 meeting, the city council did not meet the 7-vote threshold on the 11-member body to place that charter amendment on the ballot. It got just four votes – from Marcia Higgins (Ward 4), Mike Anglin (Ward 5), Jane Lumm (Ward 2) and Stephen Kunselman (Ward 3). Sabra Briere (Ward 1), who had co-sponsored the original resolution, did not vote for it, after modifications to the wording had failed to win the council’s approval.

Not originally on the council’s Aug. 9 agenda, but added at the start of the meeting, was a resolution to place a ballot question before voters in November that would ask them if they want – at least temporarily – to change the way that funds are accumulated to pay for public art in the city. Currently, funds must be set aside as part of most capital improvement project budgets – 1% up to a limit of $250,000 per project.

The ballot proposal on public art would levy a 0.1 mill tax for a four-year period – which translates roughly to $450,000 per year. In its current version, the wording of the proposal would suspend the collection of Percent for Art funds under the city’s ordinance just for the four-year period of the millage. So if voters approved the public art millage this year, and then failed to approve a millage renewal four years from now – either because the council did not place a renewal on the ballot, or voters rejected the renewal – the Percent for Art ordinance would again require that funds from capital project budgets be set aside for public art.

The reaction from councilmembers to the proposal from Christopher Taylor (Ward 3) was generally positive; however, there was considerable dissatisfaction expressed – at the meeting and subsequently – with the secretive nature of the work that had produced it. Taylor’s apparent goal in placing it on the agenda at all was to reveal the content of the proposal, without asking his colleagues to vote on it. Taylor asked for postponement of the resolution after reading aloud a speech about it. The council agreed unanimously to postpone action until its next meeting, on Aug. 20.

Voting on Aug. 20 to place the question on the ballot would allow for some public discussion before taking action on that issue, while still meeting the statutory deadline for delivering ballot language to the Washtenaw County clerk.

The public art commission has called a special meeting for Aug. 15 in order to weigh in on the subject.

Part 1 of this council meeting report deals just with these ballot questions. Part 2 will handle other business items at the Aug. 9 meeting.

Public Art Millage

The council was asked to consider a resolution that would place a question on the Nov. 6 ballot, asking Ann Arbor voters to pay a 0.1 mill tax for four years to support public art.

Public Art Millage: Content

The ballot question would read:

Shall the Charter be amended to limit sources of funding for public art and to authorize a new tax of up to one-tenth (0.10) of a mill for 2013 through 2016 to fund public art, which 0.10 mill will raise in the first year of levy the estimated revenue of $459,273?

The corresponding charter language would be [emphasis added]:

Funds for Public Art
SECTION 8.24. In addition to any other amount which the City is authorized to raise by general tax upon the real and personal property by this Charter or any other provision of law, the City shall, in 2013 through 2016, annually levy a tax of up to one-tenth (0.10) of a mill on all taxable real and personal property situated within the City for the purpose of providing funds for public art, including but not limited to the permanent and temporary acquisition, maintenance and repair of works of art for display in or on public structures or sites and/or as part of or adjacent to public streets and sidewalks, and performance art on City streets, sidewalks or sites. Except for funds previously raised, set aside, allocated or otherwise designated to be used for public art, including such funds in the July 1, 2012 to June 30, 2013 fiscal year budget, and except for funds that are received by grant, gift, bequest or other donation to the City for public art, for the duration of this millage, the City shall not raise, set aside or designate funds for public art in any other manner. This millage also shall not preclude the grant, gift, bequest or other donation to the City of works of art.

One mill is $1 for every $1,000 of taxable value on a property. So for a house worth $200,000, with a state-equalized value of $100,000, a 0.1 mill public art tax would cost that property owner $10 per year. In Ann Arbor, a rule of thumb for the amount of revenue generate by 1 mill is $4.5 million. So a 0.1 mill public art tax would generate roughly $450,000 annually.

In place since 2007, the city’s Percent for Art program requires that 1% of the budget for any capital improvement project be set aside for public art – up to a cap of $250,000 per project. More than $1 million in Percent for Art revenues have been expended to date, primarily for the Herbert Dreiseitl water sculpture in front of city hall.

By year, here’s how much money has been set aside for public art by the Percent for Art program, according to information provided to The Chronicle by public art administrator Aaron Seagraves:

FY 08    $318,689    
FY 09    $521,457    
FY 10    $450,166    
FY 11    $451,213    
FY 12    $334,660    
FY 13    $320,837 (estimated)

So the proposed millage would generate somewhat more money per year than the Percent for Art program has generated, on average, over its first six years of existence.

If approved by voters, the public art funds from a millage would not necessarily be restricted to permanent “monumental” type art, as the current Percent for Art funds are. The additional flexibility afforded by a millage-based public art program might include the ability to fund performance art or support artist-in-residency programs. It would also enjoy the endorsement of a referendum, eliminating the criticism that residents had not voted on the question of the Percent for Art program.

Public Art Millage: History

As far back as Feb. 1, 2009 at a council Sunday caucus, Marcia Higgins (Ward 4) publicly expressed her concern about the large amount of money the program was generating. Later that year, at a Dec. 7, 2009 meeting, the council gave initial approval to an ordinance revision that would have reduced the allotment from 1% to 0.5%. But at the council’s following meeting, on Dec. 21, 2009, the council voted down the ordinance revision, with councilmembers citing art as key to Ann Arbor’s identity.

Thomas Partridge peruses a Detroit Free Press article about the Detroit Institute of Arts millage that won voter approval on Aug. 7, 2012.

At the Aug. 9 meeting, Ann Arbor resident Thomas Partridge peruses a Detroit Free Press article about the Detroit Institute of Arts millage that won voter approval on Aug. 7, 2012.

In connection with approval of the fiscal year 2012 budget in May 2011, Higgins brought forward a budget amendment that would have directed the city attorney to prepare an ordinance amendment to reduce the percentage in the public art ordinance from 1% to 0.5%. That attempted amendment failed on a 4-7 vote. Six months later, the council again gave initial approval to a reduction in the percentage allocated from 1% to 0.5%. But in its Dec. 5, 2011 vote, the council ultimately opted to make only a minor tweak to the ordinance, without changing the basic percentage.

During deliberations on May 7, 2012 about a piece of public art to be commissioned for the city’s new justice center, Stephen Kunselman (Ward 3) mentioned the possibility of establishing a millage just for public art. Kunselman has been a vocal critic of the funding mechanism of the Percent for Art program, based on the idea that it is not legal to appropriate public utility funds or dedicated millage funds for other purposes to public art, as the city’s Percent for Art ordinance does.

The council voted down a proposal by Kunselman on April 2, 2012 to request a legal opinion on the question from city attorney Stephen Postema.

Public Art Millage: Analysis

The effect of passing the public art millage would be to suspend the accumulation of funds for public art purposes under the city’s current Percent for Art ordinance. The language that does that is this:

for the duration of this millage, the City shall not raise, set aside or designate funds for public art in any other manner.

Christopher Taylor has stated that the reason that the Percent for Art ordinance cannot be repealed with the same ballot resolution is a state law restricting ballot proposals to a single question. [From an email Taylor has sent to constituents of his]:

… state law requires that ballot measures be one-subject, Yes/No questions. For this reason, we cannot ask the voters to approve or reject a millage AND effect an ordinance repeal in the event of a No vote.

The state law in question is the Home Rule City Act:

A proposed charter amendment shall be confined to 1 subject. If the subject of a charter amendment includes more than 1 related proposition, each proposition shall be separately stated to afford an opportunity for an elector to vote for or against each proposition. If a proposed charter amendment is rejected at an election, the amendment shall not be resubmitted for a period of 2 years.

Taylor’s email to constituents continues:

That said, after a No vote, one could easily imagine an effort to wind down the program on the grounds that the people had spoken and rejected taxpayer support for the arts.

Taylor does not indicate that he would support such an effort to “wind down” the Percent for Art program – only that he can imagine such an effort. Based on the results of the Aug. 7 primary election, the necessary votes to repeal the Percent for Art ordinance might exist on post-general-election council in November – even without Taylor’s vote to repeal it. That scenario would allow Taylor to maintain that he’d never voted in a way to place funding for public art in jeopardy.

But if the public art millage were approved by voters, then the ballot initiative mandates that funds would not be set aside for public art through the Percent for Art ordinance for the duration of the millage. And if the public art millage were not approved by voters, then Taylor appears to be indicating that the council would be inclined to repeal the Percent for Art ordinance – even if that took place without his vote.

If the Percent of Art ordinance will not persist after the millage vote election – no matter what the outcome – it is not clear what argument would exist against repealing of the ordinance before a millage vote.

With the Percent for Art ordinance in place during the millage vote, the intent of voters in casting yes and no votes is not necessarily clear. A no vote might mean, “I support public art funding, and I think that the best way is through the Percent for Art ordinance, not this millage that I’m being asked to approve.” On the other hand, a yes vote might mean, “I do not support the use of public money on public art, but if it’s going to be spent, then I prefer that the funds be flexible enough to support performance art.”

If the city council were to eliminate the Percent for Art funding mechanism before the millage vote – through a partial rescinding of the ordinance (keeping the parts that establish the public art commission) – it would give clarity to the question on the ballot and to voters’ intent.

However, repeal of the Percent for Art ordinance before the millage vote would likely require Taylor’s vote of support for the repeal – given the current composition of the council.

Public Art Millage: Adding to the Agenda

Christopher Taylor (Ward 3) had added the item to the agenda at the start of the meeting, though he seemingly had not wanted or planned to do so, and had intended only to share the content of the resolution with his colleagues, without placing it on the agenda formally. Taylor’s demeanor at the table as he added the item, and the fact that he was unprepared to name the title of the agenda item, is consistent with the idea that Taylor added the item to the agenda only because of pressure from a council colleague just prior to the meeting.

According to city council rules, an item can only be added to the agenda with a 3/4 majority, and typically a separate vote is taken on the action to add the item, and then on the amended agenda. However, mayor John Hieftje, who chairs city council meetings, skipped the vote on the agenda addition.

The secrecy that Taylor maintained around the proposal was a point of friction for some councilmembers. Responding to an email from a WDET reporter asking for an interview, Jane Lumm wrote back to the reporter:

When I became aware that a ballot initiative was to be added (again, at the start of the council meeting), I did attempt to obtain information about the initiative from [city attorney] staff, but was told they were instructed and “not permitted to discuss” the matter. (That’s a verbatim statement.)

Responding to an emailed query from The Chronicle, Taylor refused to say whether he’d instructed the assistant city attorney to keep information from other councilmembers, but defended that kind of secrecy as an appropriate application of the attorney-client privilege:

… the ACP [attorney-client privilege] exists to incentivize clients to consult with their lawyers. Client knowledge of the law, its boundaries and opportunities is a social good. In this context, we want council members to consult with the attorney’s office – we want members to enlist the assistance of counsel early and often. If Member Jones thought that Attorney Miller would cavalierly discuss the subject of their conversation – the legal advice given to Jones – then that would have a chilling effect. In this case, Jones would not readily consult with counsel and the public would be harmed. It strikes me, therefore, that the attorney who declines to speak with one council member about legal advice given to another council member does so in the public interest.

By way of comparison, the Legislative Services Bureau – the group of attorneys who help legislators in Lansing do research, draft bills and the like – is bound by strict confidentiality rules with respect to their work for different legislators. So if a state legislator wants to work on a new bill and shield that work from other legislators, then the rules of confidentiality for the LSB would allow a legislator to keep that work secret, as Taylor did.

Public Art Millage: Taylor’s Remarks

The secretive nature of the work was one aspect Taylor had anticipated as objectionable, based on the prepared speech he read aloud. Although he had not previously indicated publicly his intent to bring forward this proposal, he portrayed the initiative as one that had been arrived at collectively:

I view this proposal without a sense of authorship, but rather as a collective product – the sum total of the many conversations we’ve had at this table and in and among the public.

Another foreseeable objection to the timing of the proposal was that input from the public art commission had not yet been sought.

The proposal did not originate with the commission; when The Chronicle reached Marsha Chamberlin, chair of Ann Arbor’s public art commission, by phone on the afternoon of Aug. 9, she told The Chronicle that she had not heard anything about the specific proposal until a few days ago, when she’d received a phone call to get her reaction to the concept. The issue has not been discussed at AAPAC’s monthly meetings, which are regularly covered by The Chronicle.

Taylor appeared to have anticipated the same criticism that had been made against the timing of the parks charter amendment proposal – that the park advisory commission had not yet been consulted. So Taylor indicated that he hoped to receive input from the public art commission, as part of the public input the council would receive before the council voted on the question of putting an art millage in front of voters.

He then contrasted the function of the public art commission as compared to the park advisory commission, pointing out that the public art commission is primarily a body that implements policy, not one that advises the council on policy as the park advisory commission does.

In order to meet before the council’s Aug. 20 vote, the commission would need to call a special meeting – because its next regular meeting is scheduled for Aug. 22. And subsequently the public art commission did call a special meeting, for Aug. 15 at 4:30 p.m. in the basement of city hall.

Taylor’s remarks also included the standard arguments for using public money to pay for art.

Public Art Millage: Council Deliberations

After Taylor’s immediate move to postpone the issue, councilmembers weighed in with generally supportive comments. Stephen Kunselman (Ward 3) told his colleagues that he’d already submitted his request for co-sponsorship as soon as he’d found out about the resolution. “Kudos to councilmember Taylor, I’m so, so, so pleased that you have taken the lead on this.” Kunselman said he’d support the resolution, saying it’s exactly what the community needs to move forward with public art.

Mayor John Hieftje followed up on Taylor’s attempt to portray the effort as “collective,” pointing out that several other councilmembers had previously floated the idea. He noted that the restrictions that are placed on the funding due to their source make it difficult to fund the kind of art that people would like to – and that’s the fundamental reason why the millage is needed.

Tony Derezinski (Ward 2), who serves on the public art commission, noted that the commission had bemoaned the restrictions on the use of funding. The restrictions are onerous, he said, but the millage is a good alternative to that. He felt that the public art commission would want to understand the reasons for the proposal.

Sandi Smith (Ward 1) appreciated the postponement, because she wanted the public art commission to have a chance to weigh in on it – to be consistent with the council’s approach to the parks charter amendment, when the council had sought input from PAC before voting. Hieftje assured Smith that the public art commission would be able to meet, saying that the commission was going to meet anyway to talk about something else. [It's not clear what he was referring to, as there had not been any special meeting scheduled at that point.]

Sabra Briere (Ward 1) supported the postponement, because the council had not had a chance to look at the proposal, and the public needed to weigh in as well. It’s not desirable for the council to look like the proposal was being rushed onto the ballot.

Jane Lumm (Ward 2) supported the postponement, as well as the resolution. But she complained about the lack of a heads up about the proposal. She told Taylor it would have been a nice gesture to have included those councilmembers who also had been interested in the topic.

She called Taylor’s announcement the “most surprising thing” she has seen since she has returned to the council [following her election in November 2011, after having served in the mid-1990s]. She wanted to see the council work in a more open, collaborative, cohesive fashion. Analyzing the resolution as partially a response to the Aug. 7 primary elections, Lumm concluded, “It’s truly amazing what a few elections will do.”

Carsten Hohnke (Ward 5) indicated support for the postponement. He felt the point of introducing it and then postponing it was to seek the kind of collaboration that Lumm had mentioned. So rather than having the resolution on the agenda on the Wednesday before the next council meeting, it would be available to the public sooner. He looked forward to the conversation over the next couple of weeks and hearing from residents about what they thought.

Outcome: The council voted unanimously to postpone action on the public art millage resolution until Aug. 20.

Contractual Powers: Sale, Leasing of Parkland

Two other ballot-related issues were on the Aug.9 city council agenda, including a possible ballot proposal to amend the city charter with respect to the leasing of parkland.

Concerns about parkland sale are not peculiar to Ann Arbor. Michigan state law addresses the question of parkland sale; and other communities in Michigan have their own recent history with controversial parkland sales. The question of amending the parkland protection clause in Ann Arbor’s city charter dates back to at least 2006.

So this section begins with some general historical background, continues with Ann Arbor’s specific history, before characterizing the public commentary and council deliberations at the Aug. 9 meeting.

Sale, Leasing of Parkland: General Background

Michigan’s Home Rule City Act addresses the question of parkland sale by stipulating that cities don’t have the power to sell parkland, except under certain conditions [emphasis added]:

117.5 Prohibited powers.
Sec. 5. (1) A city does not have power to do any of the following: … to sell a park, cemetery, or any part of a park or cemetery, except where the park is not required under an official master plan of the city; [Home Rule City Act, Act 279 of 1909]

Before November 2008, the charter of the city of Ann Arbor mirrored that statutory language as follows:

Limitations on Contractual Power
(b) The city shall not sell any park or cemetery, or any part thereof except in accordance with restrictions imposed by law. [Pre-2008 Ann Arbor city charter]

The idea that city parkland could be sold by a city – by first removing it from the official master plan – was tested (successfully) by the city of Novi around a decade ago in connection with the settlement of a legal dispute. The city owed a developer a considerable sum, and sought to meet that financial obligation by transferring 95 acres of parkland to the developer. The Oakland County circuit court ruled that the transfer could only meet the statutory requirement if the 95 acres were first re-designated in the city’s master plan as not parkland.

So that’s what the city of Novi did, beginning the process with review by its planning commission:

After a full hearing, the Court entered an Order on December 11, 2001, which held that, while most aspects of the settlement concept were approved, in order to provide the full approval of the Court, the following action could be taken: If the city’s Master Plan is amended so as to reflect a designation of the property to be transferred in a manner other than “park” . . . it is the determination of this Court that, without further action on the part of any party, the land in question may be transferred as contemplated in the [city council Resolution of October 15, 2001] in conformance with MCL 117.5(e) [the Home Rule Cities Act]. [Excerpt from Jan. 9, 2002 city of Novi planning commission minutes]

Sale, Leasing of Parkland: Ann Arbor’s Background – 2006-2007

In 2006, Ann Arbor’s park advisory commission (PAC) passed a resolution recommending to the city council that a charter amendment be placed before voters, asking them to change the city charter’s clause on parkland sale. The resolution contemplated by PAC offered the potential for some confusion, because the text includes not only the clause to be changed, section 14.3(b), but also section 14.3(a) – even though no change was proposed to 14.3(a).

Section 14.3(a) imposes a requirement that real estate transactions – generally, not just related to parks – require an eight-vote majority on the 11-member council. Leases are among the real estate transactions that require the eight-vote majority . So glancing quickly at the 2006 PAC resolution might lead to the unwarranted conclusion that the PAC resolution proposed some change in the charter with regard to leasing of parkland.

Here’s the language that PAC, in its Aug. 15, 2006 resolution, recommended that the council add to the city charter [added text in italics]:

Limitations on Contractual Power
(a) The city shall not purchase, sell, or lease any real estate or any interest therein except by resolution concurred in by at least eight members of the council.
(b) The city shall not sell any park, cemetery, or any part thereof except in accordance with restrictions imposed by law and with the approval of a majority of the electors voting in a regular or special election. No park, or any part thereof, identified in the official master plan of the city, or any subsequent acquisition to the park system, or any part thereof, identified as part of the official master plan of the city after January 23, 2006, shall be severable from the city park system and the official master plan of the city. [PAC resolution from Aug. 15, 2006]

A year later, the city council considered placing a ballot question in front of voters. The text of the charter initially considered by the city council at its Aug. 20, 2007 meeting was more succinct than the language recommended by PAC, did not include the issue of severability and underwent some further refinement at the meeting, which resulted in the following:

Limitations on Contractual Power
(a) The city shall not purchase, sell, or lease any real estate or any interest therein except by resolution concurred in by at least eight members of the council.
(b) The city shall not sell without the approval, by a majority vote of the electors of the city voting on the question at a regular or special election, any city park or land acquired by the city for park purposes (whether or not currently designated as a park), cemetery, or any part thereof. [Amended language considered in city council resolution from Aug. 20, 2007]

The council then rejected placing the question before voters – on 2-7 vote. The two yes votes were from then Ward 1 councilmembers Ron Suarez and Bob Johnson.

Sale, Leasing of Parkland: Ann Arbor’s Background – 2008

A year later, the council again considered that kind of ballot question on a charter amendment protecting parks. This time, the text of the resolution included just section 14.3(b) – because 14.3(a), which involves general real estate transactions (like leasing), had never been at issue. The council considered the following text for the charter on Aug. 7, 2008.

Limitations on Contractual Power
(b) The city shall not sell, without the approval by a majority vote of the electors of the city voting on the question at a regular or special election, any city park or land in the city acquired for park purposes, (whether or not currently designated as a park), cemetery, or any part thereof. [Initial resolution considered by the city council on Aug. 7, 2008]

The council postponed until Aug. 18, 2008 a vote to place the question on the ballot. And on Aug. 18 the council amended that text as follows:

Limitations on Contractual Power
(b) The city shall not sell, without the approval by a majority vote of the electors of the city voting on the question at a regular or special election, any city park or land in the city acquired for park purposes, (whether or not currently designated as a park), cemetery, or any part thereof. [Final resolution considered by the city council on Aug. 18, 2008]

The council voted to place a question on the ballot for November 2008. Voters in November that year decisively approved the change to the charter – 80% voted yes.

Compared to the pre-2008 version of the charter, here’s how the current (2012) language stacks up [added text in italics and deleted text in strikethrough]:

Limitations on Contractual Power
(b) The city shall not sell, without the approval by a majority vote of the electors of the city voting on the question at a regular or special election, any city park or land in the city acquired for park, cemetery, or any part thereof , except in accordance with restrictions imposed by law.

Sale, Leasing of Parkland: Ann Arbor’s Background – 2012

The city council formally considered a resolution at its July 16, 2012 to place a question on the Nov. 6, 2012 ballot, asking voters if they would like to revise the city charter further [proposed additions indicated in italics]:

Limitations on Contractual Power
(b) The city shall not sell, lease, license or contract for any non-park or non-recreational long term use, without the approval, by a majority vote of the electors of the city voting on the question at a regular or special election, any city park, or land in the city acquired for park, cemetery, or any part thereof. For purposes of this subsection long-term shall be defined as a period greater than 5 years.

Two weeks before the July 16 meeting, one of the resolution’s sponsors, Jane Lumm (Ward 2), had alerted her council colleagues that she was intending to bring the question forward. At that point, she’d been working with Mike Anglin (Ward 5) on the resolution. At the PAC meeting held on Aug. 8, Sabra Briere (Ward 1) told commissioners that when she saw a draft of the resolution, she was interested in supporting it, but wanted some “whereas” clauses deleted. Briere felt those “whereas” clauses introduced needless contentiousness. The clauses in question included these:

Whereas, subsequent to the November 2008 passage of the amended section 14.3(b) section of the Ann Arbor City Charter the City has proposed that alternative long-term uses for parkland would be considered and issued an initial RFP for Huron Hills that included the phrase, “at the time of execution of the SALES contract” in the letter to respondents, and the final RFP did not use the words “sale” or “lease”, but “agreement” and “contract for services”, and
Whereas, a sale, lease, agreement, or contract for services are not dissimilar to the extent that they essentially permit the City to enter into a long term arrangement that potentially involves development at a city park and, in so doing, violates the spirit and intent of the voter approval requirement, and
Whereas, the voter approval requirement was not intended to permit the City to utilize alternative terminology to avoid the requirement to present a parkland sale question to voters, but was intended to provide the necessary protection for parkland, and
Whereas, the City continues to utilize language other than the words “sale” or “sell” to permit long-term leases and alternative uses of parkland to avoid the voter approval and referendum requirement,

When the “whereas” clauses were deleted, Briere told PAC, she added herself as a sponsor to the resolution that came forward on July 16, 2012. The council voted to postpone its vote until Aug. 9, amid questions that Briere had raised about interpretation, as well as a desire to have PAC weigh in on the issue.

At PAC’s Aug. 8 meeting, commissioners voted unanimously not to recommend that the council pursue the charter amendment that would require a popular referendum on long-term leasing of parkland for non-park uses.

Sale, Leasing of Parkland: Public Commentary

Public commentary at the Aug. 9 city council meeting featured many of the same speakers who’d addressed PAC the previous day.

Rita Mitchell asked the council to join her as park stewards – and in that capacity, she asked for their continued support for parkland as “a treasured resource in our community.” Parks are valuable to future generations, she said. That’s why the resolution is important. She reminded councilmembers that she’s appeared before them in the past – because she’s concerned about the potential precedent that various projects might set. Parkland has been targeted for permanent transformation, she said – as a parking structure or a train station [at Fuller Road] and to allow a private management group to use parkland for private profit [an allusion to the Miles of Golf proposal for operation of Huron Hills golf course]. Memoranda of understanding (MOUs), long-term leases and various legal agreements other than a direct sale set a precedent to circumvent the referendum requirement in the event that the city desired to sell city parkland, she said.

Dark green patches indicated city of Ann Arbor parkland

Dark green patches indicate city of Ann Arbor parkland.

That allows the city to dispose of parkland using a more casual method of transfer. She believes that the council should consult the public regarding the initial basic question of whether to change the ownership or the use of parkland to something else. If the council wants to consider a change in the use of parkland, she suggested, the council should make a good case for it and convince voters.

The point of the resolution, Mitchell said, is to reinforce the public nature of park ownership. She ventured that referenda would come into play only rarely, as part of the routine management of city parkland. The resolution was initiated due to specific projects, she allowed – and that’s how she knew that such protection was needed for all of the city’s parkland. Members of PAC had raised good questions, she said, about what would constitute a park use versus a non-park use of land as specified in the proposed charter amendment.

Diane Giannola told the council she had two things to say about the proposed charter amendment. First, she said, there is “nothing wrong, improper, devious, unethical or inappropriate” about using parkland for a public purpose that benefits the rest of the city. Parks are not just about nature – they’re also about recreation, athletics, entertainment and community.

She contended that the local chapter of the Sierra Club would like to convince residents that parkland should be exclusively nature areas. But that’s not been the intent of residents, Giannola said. She called that an overreach by a private group with its own agenda. She would welcome some repurposing of parkland as long as it benefits residents. She would not welcome a vote on decisions about every change in use. She felt that a train station built on top of an already paved parking lot that lies between a road and the University of Michigan hospital is in the best interests of the residents of the city.

She called it patently false that the intent of voters in 2008 was to prevent the city council from repurposing or leasing parkland. She had voted for the 2008 charter amendment because she thought she was preventing the balancing of the city budget through parkland sale. She did not think it was about changing the definition of a sale. She objected to the idea that anyone should be able to interpret the intent of voters in a way that was false.

Alan Jackson introduced himself as a park advisory commissioner. [He was recently appointed to replace Sam Offen, who was term limited.] He had been asked to summarize PAC’s conclusions from the previous day’s meeting of the commission.

PAC had voted unanimously against that resolution, he reported. That’s not to say that the commissioners are not passionate about the parks, he said, and they felt that stricter restrictions on the use of parkland is worth careful consideration. PAC felt that the drafting of the ballot language was unnecessarily hasty, he said. PAC felt that a more careful process would yield more predictable results, and would allow citizens to understand the implications better and to develop better informed opinions. Some commissioners also questioned the need for a remedy, given that none of the “egregious transfers” – which people have been concerned about – have actually occurred. There are a number of gray areas, regarding the definition of non-park and non-recreational uses of land. Who would arbitrate the definition of those terms?

There are also a number of unintended consequences, Jackson said, with regard to some institutions that are near and dear to him, giving the example of Leslie Science and Nature Center and other groups that have arrangements with the city. The charter amendment could have a chilling effect. PAC feels that the city’s exposure to litigation could be increased by this charter amendment, he said. PAC wondered what the charter amendment would accomplish, given that the city council would be the arbiter of what constituted park and non-park use.

Nancy Shiffler introduced herself as chair of the Sierra Club Huron Valley Group. She began by responding implicitly to remarks from Diane Giannola, whose public commentary had come a couple of turns earlier. For the last 30 years – during the time Shiffler has been involved with the group – the local Sierra Club has been engaged in protecting the park system, both natural areas and recreational areas. A fundamental question raised by the Fuller Road parking structure and now the rail station is this, she said: Does the city council have the authority to change the use of city parkland to some other use, through lease agreements, contracts or some re-designation?

The council has not sought to answer that question as it has discussed the Fuller Road site, Shiffler said. Instead, the city has been “backing in” to setting a precedent that has the potential to subvert the assumption that voters make when they vote to support parks millages – that the parks they voted to support will continue to be parks. The charter amendment would establish a process by which the council would be forced to answer that fundamental question. The language of the charter can’t anticipate every proposal that might come before the council, she allowed, but she encouraged the council to put the question before the voters.

Sale, Leasing of Parkland: Council Deliberations – Initial Round

Jane Lumm (Ward 2) introduced the resolution, stressing that it was unchanged from the version she’d provided to the rest of the city council on July 9. She reviewed much of the historical context and the intent of resolution. She noted that the previous day, the city’s park advisory commission had met and voted not to recommend its support.

Jane Lumm (Ward 2) and Christopher Taylor (Ward 3)

Councilmembers Jane Lumm (Ward 2) and Christopher Taylor (Ward 3).

The 2008 change was a solid step forward in strengthening protection for parks, she said. But since that time, it’s become apparent that “loopholes” still exist that need to be closed in order to ensure that the clear intent of the voters in 2008 is to be realized. The 2008 charter amendment addressed only the sale of parkland, but did not address other mechanisms, such as leasing or long-term contracts. That could result in the outcome that the 2008 amendment was trying to prevent, she contended – conversion of parkland to a non-park or non-recreational use without the approval of residents. The goal of the current amendment, she said, is to close that loophole.

She pointed out that the five-year span that defines “long-term” in the proposed amendment corresponds to the parks planning cycle. She stressed that the proposed amendment doesn’t mean that no city park could ever have its use changed, but rather that voters would need to decide the question.

The intent, she said, is not to require the shorter-term arrangements the city has with various organizations to be subjected to voter approval – as those arrangements are part of ongoing management of the parks system.

Mike Anglin (Ward 5) described PAC as the protectors of the parks. He described the previous day’s discussion as lively and diverse. But with any piece of legislation, he said, there are uncertainties. He contended that the intent of the legislation back in 2008 was to make the restrictions tighter [than just "sale" of parkland], but he said there was concern that the tighter restrictions would not have been approved for the ballot by the city council.

Anglin described the amount of energy and money that had been invested by citizens to oppose different proposals that have come forward, citing the Miles of Golf proposal for the operation of Huron Hills golf course as an example.

The choice is between having a law that has a high standard, or whether the council says to voters that they have to come together, get organized, and “fight your city.” The council should be fair with the citizens and be fair with the proposals. As a hypothetical, he suggested that perhaps he wanted to donate a merry-go-round to Veterans Memorial Park and it would cost $2 million – he’d pay for all of it. Would that be supported? The charter amendment would help us understand that, he said. He ventured that parks uses continually change.

He suggested that the charter amendment was not perfect, and alluded to the medical marijuana ordinance, which was not perfect, describing that situation as “total chaos.” Based on the charter amendment, Anglin said, if the city chooses to go ahead with locating a rail station at Fuller Road, then the charter amendment would require asking voters. It might be that voters approve it, he said. He also contended that the proposed charter amendment would require a proposal like Miles of Golf had made for operation of Huron Hills to get voter approval. He also maintained that a possible removal of Argo Dam would also require voter approval.

Sabra Briere (Ward 1) followed up on Anglin’s statements about different projects that would and would not require a voter referendum, and ventured that some councilmembers have different understandings of what the proposed resolution would accomplish. She asked assistant city attorney Mary Fales, who had helped draft the language, how the proposed charter amendment would have applied to various past proposals, or hypothetical future proposals, if it had then been in place. In bulleted list form, here are responses by Fales to the topics Briere asked her about:

  • Building Argo Cascades: The proposed charter amendment would not have applied, because it’s a recreational use.
  • Removing Argo Dam: If the purpose of removing it was to improve the waterway for recreational purposes, then the proposed charter amendment would not apply, because the use would be recreational.
  • Ice Cube operation of Veterans Memorial Park ice rink or Miles of Golf operation of Huron Hills golf course: Because those parks would still be used for ice rink and golf course services, the proposed charter amendment would not apply.
  • Closing Huron Hills golf course and using it for wild land and sledding: The proposed charter amendment would have no bearing on closing a city park – because it affects only the contractual powers of the city. If the city administration or park advisory commission recommended that a golf course be used in a different recreational format, then that could be done without a voter referendum – even under the proposed charter amendment.
  • Building a parking structure on a park: A surface lot or a structure could be incidental to the customary use of the land as a park – because it creates a place for people to be able to use the park safely, so no referendum would necessarily be required.
  • A 15-year lease with University of Michigan for a parking structure at Fuller Road: If the purpose is to commercialize the property or for some other purpose that is not for park or recreational use, and the contract is longer than five years, then it would require a vote of the people.

Both mayor John Hieftje and Margie Teall (Ward 4) appeared to want to explore the idea that if the commercial purpose of a parking facility would generate revenue supporting the parks [as is the case with the current arrangement between UM and the city for the surface parking lot at Fuller Road], then that arrangement might be construed as a park purpose. But the question was never framed clearly enough to get a specific response from Fales.

Assistant city attorney Mary Fales

Assistant city attorney Mary Fales.

Stephen Kunselman (Ward 3) indicated that he’d be supporting the proposal. A 99-year lease for the Fuller Road parking structure would be outrageous, he said. That went beyond any reasonable expectation about the use of the city’s parkland. [.pdf of MOU with University of Michigan. It does not appear to stipulate any term lengths, but rather an intent to develop some kind of agreement.]

Kunselman felt that the five-year period was reasonable, based on the park planning cycle. There could be multiple renewals of shorter arrangements, so he did not see that as a problem. He did see a problem with a 99-year lease.

Kunselman allowed that they’d been hearing things about voter intent in 2008 – from both sides of the debate. He was not looking at it from a past perspective, but rather was looking toward the future. He did not want to see a future council trying to lease parkland for 99 years. One attempt had been seen, he said, and he doubted it would be tried again anytime soon. But because it has happened once, it could happen again, because it’s a typical response, he contended.

Responding to a standard argument that the Fuller Road site is currently a paved parking lot, he pointed out that it had not always been a parking lot – as he’d played soccer there as a kid back in the 1980s. In the past, Hieftje had made campaign pledges to add additional soccer fields, Kunselman contended – and this was a chance to do that, if the city wanted to convert the Fuller Road parking lot to a soccer field. That would take away the “piddly” amount of money that the lease arrangement with UM generates – about $30,000 he said. That’s small compared to what UM charges its employees for parking passes, he said, and he ventured that UM is making money off the city’s parking lot.

Kunselman figured that if the voter intent wasn’t there, they would vote down the charter amendment: “Let’s just give them that opportunity.” He didn’t think the city would harm itself, the public or the relationship with UM by doing that.

Responding implicitly to remarks from Diane Giannola about repurposing parkland – as long as it benefits the residents – Kunselman asked: Did a 1,000 car parking garage at Fuller Road offer a benefit to residents or rather to UM?

Sale, Leasing of Parkland: Council Deliberations – Amendment

Sabra Briere (Ward 1) told her colleagues that she’d sent around a draft of a proposed amendment. She said she did not think the charter amendment is a terrible thing to put on the ballot – but we have to be honest about what it accomplishes, she said. She felt like there was confusion in the public about whether a proposal like the one that Miles of Golf had made to operate Huron Hills would require a voter referendum. [Anglin and Lumm feel it would require a referendum; assistant city attorney Mary Fales indicated it would not.]

A very informal poll of Briere’s constituents showed that more than 37% believe the proposed amendment would protect parks from bad decisions by the city council, she said. “But I have to tell you, it wouldn’t, as drafted,” she cautioned.

She did not think there’s any way to amend the charter to prevent the council from making a mistake.

She then proposed a substitute amendment for the charter language:

Limitations on Contractual Power
SECTION 14.3(b)
The city shall not, without the approval by a majority vote of the electors of the city voting on the question at a regular or special election, do any or all of the following with any city park or land in the city acquired for a park or cemetery or with any part thereof: (1) sell any such land; (2) lease, license or contract for any non-park or non-recreational use any such land for a period longer than 5 years; (3) contract for the operation of any such land for non-park or non-recreational use for a period longer than 5 years; (4) contract for the construction of any building on any such land, except as is customarily incidental to the principal use and enjoyment of such land.

Briere said that in her personal view, this was a legitimate effort to look at what the city could do and to worry about whether the city could contract for recreational services and what the implications of that would be. The answer is that the city could maintain its current relationships with vendors at the farmers market, and also with Project Grow, the Leslie Science and Nature Center, and Community Action Network, she said. But it means there could not be automatic renewals. Leases for non-park use would have to come back to the council at least every five years, she said.

The text about customarily incidental use, Briere said, she’d taken from the allowable uses of parks as public land, as described in the city’s zoning ordinance.

She noted that it meant that the city council could still contract with a builder to construct a new swimming pool or a skatepark or a new ice rink, without having a referendum on it. But the city might have a problem if the city wanted to build a new senior center on a park, she ventured. And the city might have a problem, she said, if it wanted to contract to build a train station on parkland. She indicated that with all the additional language, she had wanted to make the language accomplish what people thought it already did.

Sandi Smith (Ward 1) expressed the view that even with Briere’s changes, there are still some unclear issues, and she didn’t think that’s a good way to dive into something. At the PAC meeting the previous day [which Smith attended], she observed that at least two people spoke about the Leslie Science and Nature Center. For an organization of that small size, running a campaign to make sure an arrangement for use of the parkland is approved by voters takes away from the core mission of the center, she said – which is about educating young citizens about nature. And if the voters didn’t approve it, then what?

Smith also pointed to the possibilities for things we haven’t thought about – like new land that the city is thinking about developing along the Huron River. If the city had the opportunity to develop a restaurant, there’s no way a small-business owner would make that kind of investment on a five-year basis. She allowed that Briere’s amendment made things slightly clearer, but didn’t feel she could support the amendment.

Hieftje picked up on Smith’s point about a restaurant. He reported that he’d talked to three restaurateurs about it in the last couple of weeks. He asked them to consider the possibility that the city could make some land available for a restaurant in the Huron River corridor. They said: Great! And they said they could imagine that people would come from a long way away to eat at such a restaurant. The restaurateurs indicated that for them to bring a development proposal would cost hundreds of thousands of dollars – and that would be necessary, because people won’t vote based just on a concept. They would not be willing to risk that on a vote of the people, or base it on a five-year arrangement – which depending on the city council might not be renewed. At some point, he said, folks around this table are elected to make decisions. He appreciated Briere’s amendment but did not see that it achieved enough clarity.

Lumm felt that the example of a restaurant had been floated before at the Huron Parkway bridge near the golf course, and that residents had said that that’s the kind of repurposing that they opposed. She felt that it’s important to know from voters what they think about such a proposal. Lumm then responded implicitly to Smith’s description of the PAC meeting, saying she [Lumm] was there for the duration. [Her point appeared to be that Smith had left a bit before the conclusion of the meeting.]

Lumm did not understand what is so difficult to understand about the proposal. It does restrict what can be done with parks, she allowed, but not if it stays within what any reasonable human being would say is an acceptable parks and recreation use. She felt that the changes proposed by Briere were redundant and unnecessarily complicating. She felt the original language was clear, concise and had the right level of detail.

Carsten Hohnke (Ward 5)

Carsten Hohnke (Ward 5)

Kunselman responded to comments from Smith and Hieftje about efforts to commercialize parks along the river. He pointed out that the national park system has concessionaires for many of the national parks. The city could own the building and then contract out the operation, if you want to have a restaurant down on the riverfront. That reduces the risk to the vendor, he pointed out. So those goals can be accomplished, he said.

Carsten Hohnke (Ward 5) said he appreciated Briere’s efforts with the amendment – but for him, it made an unclear bad policy a much more clear worse policy. He felt that asking PAC to look at the proposal was exactly the right thing to do. The discussion by PAC highlighted that the language in the amendment was not capturing what we’re trying to capture. He called it a classic example of “hard cases making bad law.”

Hohnke also suggested that all the significant decisions take time – and each year it’s possible to turn over half the council, so voters have had the chance to turn over this council three times over since the Fuller Road memorandum of understanding was signed. So he did not support the amendment or the underlying resolution.

Anglin described the amendments as covering a lot of “what-ifs.” It’s not possible to build in language that covers every possible situation, he said. But it’s possible to start a process for how to treat the city parks. He reminded his council colleagues that he had voted against the PROS plan [the city's Parks and Recreation Open Space plan], because he did not think that the city was protecting its own land as well as it was protecting private investments.

Margie Teall (Ward 4) felt that the system of representative democracy has worked – it worked with the Huron Hills proposal from Miles of Golf. Staff had been asked to bring ideas to the table and they had brought ideas to the table. The golf course has never made any money, she said. The process worked for the people who wanted that land to be protected. She didn’t feel there was a need for Briere’s amendment or the charter amendment, so she’d be voting against both of them, she said.

Briere said her efforts to go through the hypotheticals was an effort to make sure she’d considered as many possibilities as she could. The real question, she said, is whether you view this an improvement of the city charter, and whether the language belongs in the city charter. It’s not just whether the council reassures residents that the council values parks by giving them an opportunity to affirm that they value parks. She believed that we all value parks.

If you feel it’s not an improvement to the city charter, she said, she respected that viewpoint. If you feel it’s an improvement because it clarifies things about the contractual limits on the council, that’s also fine, she said. She’d heard that PAC’s concern was not whether the city could contract, or whether the city could lease, or even whether the city could use parkland for non-park purposes. Their concern was to have a coherent process to follow that would put PAC’s considerations before other considerations. The idea would be that when someone had an idea about how parkland would be used, then that would go to PAC first.

Kunselman addressed the issue of representative democracy. He gave the example of Sylvan Township – a legislative body that moved ahead with a project that put the community into an extreme amount of debt. None of the members of the township board are still on the board. The charter amendment, he said, was to protect citizens from “representative democracy gone awry.”

“It’s important that we protect our parks from ourselves as councilmembers,” he said. He called the 2008 charter amendment redundant, given the Home Rule City Act, but Ann Arbor had gone ahead with that amendment because other communities had found a way around the state statute.

Christopher Taylor (Ward 3) allowed that the amendment increases the specificity and scope of the provided language. He shared PAC’s concerns, and the amendment creates opportunities for those concerns to be exacerbated. So he’d decline to support the amendment, he said.

Outcome: Briere’s amendment failed, with support only from Briere herself and Kunselman.

Sale, Leasing of Parkland: Council Deliberations – Final

Back on the discussion on the main motion, Lumm asked assistant city attorney Mary Fales if the charter amendment would allow renewal of leases in 5-year increments. Fales essentially confirmed that was the case. Lumm also got Fales to confirm that she’d looked at all the various existing contractual arrangements the city had with different groups, related to the parks – like the rowers at Bandemer, the farmers market, Leslie Science Center and the like.

Lumm returned to her basic point – that even though some interpretation is required, the language is clear, straightforward and focused on how parkland is used. The leases that arise in the course of normal operations, she said, would not trigger a vote. She did not feel the standard is hard to apply.

Responding to the idea that the ultimate rejection of the Miles of Golf proposal showed there was no reason for the charter amendment, Lumm contended that it had been rejected only because it wasn’t a good financial deal for the city. She contended that a proposal like Miles of Golf’s could not have been accepted without prior approval of the voters – based on the language of her proposed charter amendment. [However, Fales had indicated that it would not have triggered a referendum, based on the fact that it would have maintained a recreational use.]

Lumm raised an implicit specter that voters might not approve the parks maintenance and capital millage [which the council placed on the ballot later that evening], if the council did not place the charter amendment before voters. She saw no better way to complement that “ask” than by reassuring voters that the city would be good stewards of the “precious assets of the parks.”

Anglin allowed that the council has discussed the issues and they’re well understood. He described Ann Arbor as a place where people have the free time and expertise to participate in the community, and it makes the community better. The park system is the envy of many towns, he said. In other communities, they’re taking little bits of green away, which Ann Arbor has not yet begun to do. He ventured that in a poorer community, parkland would have already been lost.

Mike Anglin (Ward 5)

Mike Anglin (Ward 5)

In light of Lumm’s statement about Miles of Golf, Briere came back to the past Miles of Golf proposal by asking Fales again to confirm that if the city had contracted for management of the existing course, or a converted 9-hole course with a driving range, the proposed charter amendment would not have triggered a popular vote – Fales confirmed that was the case.

Sandi Smith noted that the council postponed a vote on July 16 in order for PAC to be consulted. That body of citizen volunteers had voted unanimously against placing the ballot question before voters, she said, so she wanted to honor that group by following their advice.

She’d heard terms like “steward” and “sacred trust” and she had faith that future councils will also be good park stewards. She noted that since 2000 Ann Arbor has added 151 acres to the park system and no parkland has been lost or repurposed. Since 2007, she said, 44.5 acres have been added. And just this year 10 acres have been added to the park system. That’s a pretty good record, she said. Since 2007 the acreage added represents almost $1 million in taxable value, and that’s about $45,000 in general fund revenue that the city is forgoing. She asked, “Who is the park steward?” She did not want to tie the hands of future councils on ways the city can grow the park system, or find a way to maintain the parks. She pointed to the longer mowing cycle the city had to use last year (19 days), noting that the grass was knee-deep in some places. The city was not able to maintain the soccer fields it has, she contended.

Smith did not want a future council to be in a situation where it could work with a commercial entity to solve a problem, but could not do that without taking it to the voters. The amendment would not allow the city to be as “nimble” as it needs to be. And if it’s a non-presidential election, she wondered how many people might get to the polls to make these decisions. She would trust future councils, she said.

Christopher Taylor began by saying that the Fuller Road Station was never contemplated as a “lease” but rather as a “use agreement.” That’s an important legal distinction, he contended. [In the context of standard principles of statutory interpretation that would apply to a city charter – namely, their ordinary and plain meaning as would have been understood by the electorate, not the way a real estate attorney would understand them – it's not obvious that the distinction Taylor is drawing between a lease and a use agreement would be relevant.]

He addressed the suggestion that the charter amendment is necessary in order to save residents from the need to advocate for their positions. He felt that it is completely appropriate that residents gather on questions of public interest – and it’s not something to be “feared or bemoaned or coddled.” He didn’t think the language of the resolution, if passed, would be a disaster, but did not feel it would be good policy or good for parks. He called it a “solution in search of a problem.” So he opposed the resolution for the reasons cited by PAC – reviewing each of them.

Taylor then turned his attention to the idea that this charter amendment would finally redeem the intent of the voters in 2008. Aside from the fact that the word “sale” could not be more plain, he contended, and that voters are presumed to have read the ballot language that they passed, he reported that he’d learned at PAC’s meeting the previous day that the council specifically removed the word “lease” from the ballot language that went before the voters in 2008. In light of this specific and intentional deletion of “lease” from the 2008 ballot language, he said, the continued assertion that “lease” was part of the initiative’s intent is “demonstrably false.” Its knowing repetition, he claimed, is “simply shocking.” It may be a good idea or a bad idea, he said, but to suggest that opposition to the current proposal is contrary to the demonstrated will of the people is patently false.

Sabra Briere (Ward 1), Christopher Taylor (Ward 3)

Councilmembers Sabra Briere (Ward 1) and Christopher Taylor (Ward 3).

By way of additional background, Taylor did not make clear at the council table how he reasoned from the city council’s reported action of deleting the word “lease” back in 2008 to conclusions about what some voters wanted out of the initiative. Responding to an email query from The Chronicle, Taylor identified Rita Mitchell’s remarks to PAC on Aug. 8 as the source of his contention that the council had consciously acted to delete “lease” from the charter amendment proposal – and conceded he could not cite “chapter and verse” of relevant documents. However, The Chronicle did not discern in Mitchell’s remarks any claims about deletion of the word “lease.” In her remarks, Mitchell’s mention of the 2008 proposal included the outcome of the vote – which was 80% in favor – and her statement that: “The value of adding the terminology that we’re talking about today will provide that extra protection that I believe voters did want.”

Taylor might have confused Mitchell’s comments with those of Jane Lumm – whose remarks at the Aug. 8 PAC meeting included the following: “The language that was brought forward in 2008 and approved by PAC included ‘lease.’ Council chose to amend it and remove that language.”

However, based on The Chronicle’s review of meeting minutes from PAC and the city council during the relevant time frame, it does not appear that the council ever had before it a proposal that included the word lease in Section 14.3(b) – despite Lumm’s characterization. [See the background subsection earlier in this report for the possible source of the confusion.] Taylor maintained in his emailed response to The Chronicle that in his remarks made at the council table he did not draw a negative inference about residents themselves, but rather their tactics.

Taylor also contended that his conclusion that residents’ claims are demonstrably false – about the intent of voters in 2008 – could be derived from the plain meaning of “sale” alone. Taylor did not respond to a follow-up question about the possibility that voters in 2008 might have included a 99-year lease as part of their notion of sale.

At the council’s Aug. 9 meeting, Hieftje wrapped up the deliberations by contending that the council is sometimes punished even for considering options. He would put his record on parks up against any elected official in the state, he said.

Outcome: The resolution received support only from Marcia Higgins, Mike Anglin, Jane Lumm and Stephen Kunselman. Sabra Briere, who pointedly paused when the roll call came to her turn, voted no.

The vote eliminated the chance of placing that type of ballot question before voters on Nov. 6. There have been some smattering of conversations about the possibility of placing the charter amendment before the voters, perhaps in May, through a petition drive, which would require around 4,000 signatures.

However, an easier path to another consideration of the issue might result from the new composition of the city council that will result from the Aug. 7 primary election and subsequent Nov. 6 general election. Democratic primary winners Sally Petersen in Ward 2 and Sumi Kailasapathy in Ward 1, assuming they win the general election, would almost certainly replace no votes with yes votes. And the version that Briere proposed might win her vote. That would give the council the seven votes it needs to put the measure on a future ballot.

Parks Maintenance, Capital Improvements Millage

The council also considered placing a question on the Nov. 6 ballot that would renew the parks maintenance and capital improvements millage at the rate of 1.1 mills.

The city’s park advisory commission had voted at its June 19, 2012 meeting to recommend that the council put the millage renewal on the ballot. The current 1.1 mill tax expires this year. A renewal would run from 2013-2018 and raise about $5 million next year. The recommended allocation of revenues is 70% for park maintenance activities, and 30% for park capital improvement projects. Of that allocation, up to 10% can be shifted between the two categories as needed.

Examples of park maintenance activities include “forestry and horticulture, natural area preservation, park operations, recreation facilities, and targets of opportunity,” according to a staff memo. Capital improvement projects would cover parks, forestry and horticulture, historic preservation, neighborhood parks and urban plazas, park operations, pathways, trails, boardwalks, greenways and watersheds, and recreation facilities.

PAC was first briefed about the millage renewal at its March 22, 2012 meeting. At the time, PAC chair Julie Grand – who served on a working group to strategize about the renewal – said concerns about the economic climate were a major reason why an increase wasn’t being recommended. City parks staff and PAC members subsequently held several public forums about the renewal that were sparsely attended. Technically, the rate of 1.1 is an “increase” inasmuch as the currently authorized millage rate has been reduced from 1.1 mills to 1.0969 by the Headlee Amendment.

The proposed ballot language reads as follows: “Shall the Charter be amended to authorize a tax up to 1.10 mills for park maintenance and capital improvements for 2013 through 2018 to replace the previously authorized tax for park maintenance and capital improvements for 2007 through 2012, which will raise in the first year of the levy the estimated total revenue of $5,052,000.”

Deliberations were brief at the Aug. 9 council meeting, as Christopher Taylor (Ward 3) gave the background on the millage. He’s one of two council representatives to the park advisory commission. Sabra Briere (Ward 1) noted that it’s a “frugal” millage in that it does not ask for an increase above the originally approved amount – but she noted that costs have increased.

Outcome: The council voted unanimously to place the parks maintenance and capital improvements millage on the Nov. 6 ballot.

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

Next council meeting: Monday, Aug. 20, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [Check Chronicle event listings to confirm date]

The Chronicle could not survive without regular voluntary subscriptions to support our coverage of public bodies like the Ann Arbor city council. Click this link for details: Subscribe to The Chronicle. And if you’re already supporting us, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!


  1. By Diane
    August 13, 2012 at 7:53 pm | permalink

    I believe it was Sabra who mentioned that the word lease was taken out of the 2008 ballot proposal. Whether that action back in 2008 was actually done at a council meeting or just in discussions between authors of the 2008 resolution, I don’t know. Nonetheless, this topic was brought up at PAC as Christopher Taylor said. I was quite shocked when i heard it said out loud during discussions. It completely backed up my main point regarding the validity of the claim that the voter’s intent was being circumvented.

    Regardless, the residents only were asked to vote on the SALE of parkland and were never asked about leasing. The intent of the local Sierra club and of some other activist might have been to include leasing, but it was not the intent of the voter, the intent of council or the intent of PAC. You cannot imply that the public wanted to include “leasing” because the public was never asked the question.

  2. By cosmonıcan
    August 13, 2012 at 11:46 pm | permalink

    I may have misinterpreted the map, but it appears to assign ownership of the Arboretum to Ann Arbor instead of the U of M.

  3. By John Floyd
    August 14, 2012 at 1:23 am | permalink

    If you ask me if I like chocolate ice cream, and I tell you “Yes”, does that mean that I must not like strawberry, as well? Does my, “Yes”, on chocolate ice cream tell you anything at all about my opinion of strawberry ice cream, one way or the other?

    Lesser minds (e.g., mine) might have figured that since voters were only allowed an up-or-down, take-it-or-leave-it, vote on a single transaction type, that you could not read into that vote people’s feelings about any other transaction type, one way or another.

    As a lesser mind, it simply had not occurred to me to consider other, non-available, transaction forms when I voted on the “Sale” amendment. I was asked to vote on “Sale”, so I did. I wasn’t asked to to vote on “Long-term lease”, so it didn’t occur to me to think about it when I voted on “Sale”. However, even if it had occurred to me to think about long-term leases, I would NOT have voted NO on the question of sales approval just because leases were not also included. To my mind, something beats nothing. If we needed to come back around to the question a second time, in the interim I’d rather have some protection in place than none.

    Lastly, trusting simpleton that I am, it also had not dawned on me that our friends and neighbors on council would play their friends and neighbors (i.e., us) for suckers by attempting to accomplish their ends – parkland sales – by structuring transactions in nominally different forms – and this fast on the heels of “Sale needs approval” amendment. Friends and neighbors don’t do that sort of thing to each other, do they?

  4. By Rod Johnson
    August 14, 2012 at 7:16 am | permalink

    @cosmonıcan: The Arb is (or was) partly owned by the city and partly by the U, although the two have an agreement that the U would administer it all. The city portion is relatively small (about a third), and that’s what’s shown on the map.

  5. By Diane
    August 14, 2012 at 8:03 am | permalink

    @ John Floyd The beginning of your statement is exactly my point. You cannot tell what people are thinking about other issues when you only ask about one. You may think that everyone may want additional restrictions, but you cannot say that with absolute certainty. People cannot point to the 80% passage of the ballot proposal and insist it includes leasing. Many, such as myself would not have voted for it, if it included leasing.

    This distinction is not about playing politics. It is about the truth. It is about presenting something to the residents that is factual. A new resolution presented at council should not include hyperbole or misrepresented facts. When one uses the words circumvent, loophole, against the will of the people, the writer is painting a picture of deception, malice and ill will. These words are intentionally included in order to convince the public that things occurred in a different way than they actually did. Council and PAC did discuss leasing, but somewhere along the line it was decided upon to not include it. That is called process, not circumventing.

    Everyone is allowed their own opinion, but they are not allowed their own facts. Repeating something that is incorrect throughout the years does not make it anymore true than the first time they said it. It is extremely hypocritical to accuse others of misbehavior when the supporters of the leasing restriction are the ones, misrepresenting the past and the intent.

    If the leasing restriction cannot pass through PAC, council and the public on its own merits than it should not be instituted. Truth matters. Stretching the truth and/or lying, claiming it has already been done, and actually re-writing history is not something councilmemebers should be doing when creating ordinances, laws or ballot proposals. Those actions are ones the Republicans have used for years while trying to ram through their ultra conservative agenda through congress and the state house and I, and other Democrats, find those actions unconscionable. Oh wait…hhmm

  6. By Tom Whitaker
    August 14, 2012 at 1:08 pm | permalink

    @5: So, those trying to protect parkland from being sold off, leased, privatized, or otherwise misused in addition to being called liars, are now being called ultra-conservative Republicans? Not only is that hyperbole, it is the opposite of political reality. Time to take it down a notch, folks.

    The fact is, Jane Lumm was very active in a grassroots effort in her ward (and across the city) to prevent a potential sale of the Huron Hills golf course. After the referendum restricting parkland sales passed, and concerns of a sale put to rest, the potential of a Huron Hills sale morphed into a long-term lease/privatization RFP. Once again, Jane and other citizen activists, like Rita Mitchell, had to jump up and organize a grassroots opposition effort, because their council members simply weren’t listening–especially in the Second Ward.

    As a result of her deep involvement in this and similar efforts, I believe Jane and Rita are both highly qualified to understand and speak about what was in the hearts and minds of voters regarding the park sale referendum, both before and after. Further, I believe Jane’s bringing this current proposal forward, not only on the basis of her personal knowledge and sincere beliefs, but also because of her sense of duty to the voters who elected her.

    This sense of duty is something that’s been largely absent in local politics lately. For example, a couple of years ago, the development of the publicly-owned Library Lot, while it wasn’t ever a park, also drew considerable public attention and concern that our elected representatives were not listening to their constituents on how to properly manage yet another valuable community asset.

    These issues drew a clear distinction between council incumbents and their opponents, and as a partial result, voters in the second ward tossed out Stephen Rapundalo and just recently, Tony Derezinski. Their successful opponents supported greater protection of our parklands and also pledged to represent their constituents at the council table instead of pushing their own “visions” down their constituents’ throats.

    Similar to Huron Hills, but not yet driven to a head, the proposal to put a parking structure/train station in Fuller Park has drawn considerable public concern, and an organized public effort to oppose it. All the candidates who won in the recent Democratic council primary supported a public vote on re-purposing Fuller Park, with the exception of Margie “parks should make money” Teall (who barely won). Even Chuck Warpehoski, strongly endorsed by the Mayor and other like-minded individuals, pledged his support for a public vote on the matter.

    I believe that Jane Lumm’s and Rita Mitchell’s take on voter sentiment about parkland sales/leases/privatizations/re-purposing, is far more accurate than that of a previously unified, but out-of-touch mayor and council, or its appointees. Christopher Taylor should apologize for his arrogant and insulting remarks–the kind of remarks that have led to the ouster of three of his colleagues in the recent past. Those throwing around online accusations of lying, misrepresentation, and truth-stretching ought to have the courage of their convictions and use their full, real names. Perhaps this would help the reader to better establish the context of their ugly, politically-charged comments.

  7. By Tom Hollyer
    August 14, 2012 at 4:13 pm | permalink

    C’mon Diane, a reasonable person can indeed infer from the passage of the 2008 amendment that the voters intent was to prevent the disposal of parkland prior to a vote of the people. My guess is that most voters were completely unaware of the previous discussions regarding leasing and its explicit rejection for inclusion.

    Inferences and guesses… so no, I can’t prove them. But they sure seem reasonable. Much more reasonable than the assumption that by voting for the amendment we were explicitly granting approval to lease parkland to someone else for 99 years. Hard to imagine anyone in the voting booth thinking “Let’s see. I’m prohibiting sale, but that’s OK, they can still lease away our parkland.”

    I don’t think it is unreasonable at all for people who voted for the amendment to feel betrayed, circumvented, and loopholed by councils’ attempts to enter into a 99-year lease, regardless of whatever other benefits may or may not accrue to the citizens.

    In the interest of full disclosure, I actually think we have too much parkland and would like to see some of it go away. And I did not vote for the amendment. But it passed, and I believe you can indeed infer the intent of the voters, and that council should honor it.

  8. By Diane
    August 15, 2012 at 7:19 am | permalink

    Tom, I 100% disagree. Not only can you not infer what people were thinking, you should not infer. There may be 100 different reasons why people voted the way they did, that is not what is being debated. What is being debated is that someone is trying to say that everyone’s reasoning was the same and then wants to use that as justification for saying everyone was betrayed. That is too big an overeeach and I personally find that insulting for some to do this.

    Most voters do not watch council, most do not even pay attention to the issues. Voters walk into the voting box, including some who may not even know that the issue is on the ballot at all. They read what is there and interpret what the language says. It does not matter why the chose to vote they way they did, it only matters that they chose yes or no. A simple question has a simple answer.

    A 99 year lease was not talked about in the ballot proposal, that is true. That still does not mean that voters are against a 99 year lease. It is VERY unreasonable to assume everyone is betrayed. Are voters now against the Leslie Science Center and their long lease? Should we push to close them down because voters said no to selling parkland? When the facts are discussed about leasing, most, including myself, do not support it. Leasing is a much more complicated issue and even PAC is not ready to consider any restrictions on it. The 80% passage of the 2008 proposal is not an indication about leasing in any form.

    Losing the fight to include leasing on the 2008 ballot proposal does not give them the right to cry, foul, corruption,circumventing the will of the people etc. Obviously they think leasing will not be supported on its own merits, so they want to convince the public that it was already approved. I have a big problem with that.

  9. By Diane
    August 15, 2012 at 7:20 am | permalink

    My previous comment was for #5 Tom Hollyer.

  10. By Steve Bean
    August 15, 2012 at 11:07 am | permalink

    Diane, I’m curious why you say you would not have voted for the ballot proposal if it had included leasing.

  11. By John Floyd
    August 17, 2012 at 11:26 pm | permalink

    Ms. Giannola,

    The major point I attempted to make- unsuccessfully, I see – was that the use of the transaction form of “long-term lease” to get around the requirement to obtain consent of the governed, before a parkland sale, played us voters for suckers. Council did not propose renting out the Huron Hills concession stand; it proposed a long-term lease in order to turn over Huron Hills to a private entity so that they could permanently turn Huron Hills into something other than a public golf course. Similarly, the attempted “lease” of part of Fuller Park was not to outsource management of lawn care, operation of the pool, or maintenance of soccer fields: it was to turn over part of Fuller Park to an entity that would permanently remove part of the park from the park system in a way that a gravel parking lot does not.

    These “leases” of park land are not at all like the agreement with Leslie Science Center, to run an existing program in an existing building. Rather, the purpose of the ‘lease” transactions at Fuller and Huron Hills was to enable the leasees to make changes to parks that permanently divert them from their park use, to make uncompensated capital investments that only an owner would make, and to earn a return from their investments. I am comfortable with the assertion that these attempts to use capital leases as a vehicle for avoiding recent commitments to public accountability, played the friends and neighbors of council members for suckers.

    You may wish to familiarize yourself with the difference between a capital lease, and an operating lease.

    I observe that whenever the Council Party or their supporters find themselves caught doing or espousing something that should not be done or espoused, they try to turn to conversation to some national political topic, and away from the thing they should not be doing. Apparently, the logic is that because someone in Washington is nuts, there should be no accountability in city hall. I wonder how much longer the Council Party can get away with this tactic.

  12. By Diane
    August 18, 2012 at 9:57 am | permalink

    @ John Floyd No, voters were not played for suckers and council did not circumvent the voter intent at all. You do not speak for my and others intent regarding how we think a “sale” actually is defined. Long-term leases ARE in the best interest of the city. Huron Hills Golf Course is an infrequently used golf course and should be used for more than it currently is. It is redundant (the city has a better and more frequently used, award winning golf course) and loses money year after year. The city and council did nothing inappropriate whatsoever when looking into other uses for the golf course. Why not use that space for some other recreational or entertainment park activity (not condo or houses)? Why not build a water slide park? The skatepark could have been built there. How about a boardwalk with restaurants along the river. Another public pool? Why NOT a miles of golf driving range? Miniature golf? And my personal favorite would be a garden and sculpture park along the lines of Federik Meijer Gardens and Sculpture Park in Grand Rapids. All prior park uses are not sacrosanct, and all new uses are not bad.

    The only way to accomplish these things is to lease…using a long-term lease. The city cannot possibly expect to have expertise in all things all the time. At times, specific expertise is required for certain park amenities, some are not just menial jobs that can be temped in or hired in yearly. Also, the city does not have the budget to pay for the upfront capital costs anymore. A long-term lease is the only way some other private entity can afford to invest in our community while bringing us, the residents, some type of activity we can all enjoy. The city saves the upfront costs while bringing a new, more useful and updated use to the residents and the private entity makes some money off the user fees. So what? Sounds fine to me. Due to the reality of the situation, if one does not want long term leasing, then one is saying that they want everything to stay the same, no change, and no innovation. Personally I like change and I like innovation.

    I could care less that a bunch of rich people in ward 2 want to keep an empty golf course as their backyard. They are using “leasing” as a way to get what they want, which is no change. If the Leslie Science Center was a new concept and they wanted to locate on the Huron Hills golf course today, we would be hearing the same arguments from them just so they could stop the repurposing of the golf course into another park use. In hindsight we now know the value of the Leslie Science Center, should we have not leased to them years ago. Was their lease unethical or wrong? Their attempts at trying to keep an empty golf course for a backyard, IMO, are actually hurting the entire parks system.

    As for the train station, it is a moot point now because UM pulled out of the deal that would have saved the residents and the city a lot of money. Now the train haters can only rely on their ridiculous argument about how building upon this parking lot is going to ruin the city and the park system. This is the same piece of land that 20 years ago was so meaningless, that PAC and the local Sierra Club TRADED it for TWO TREES. Really? Now we want to throw away an opportunity to build mass transit that could help our environment by getting more cars off the road? If the rescue of two trees is worth paving over a strip of grass that falls between a road and a railroad track, then I think building mass transit that could help improve our air quality and decrease road congestion is even more justified. The train issue is not about long-term leases in the parks either.

    Selling parkland for private use for office or condos is completely different than leasing park land for an amenity that serves the public. That is why, Steve Bean, I would not have voted for the 2008 ballot proposal if it included leases. I actually understand the difference between a sale, a lease, and a long-term lease. I am only against selling the parks in general. However, for a good use that has not been thought of yet, who knows? The unknown is the unknown and I could not say I would never back the “sale” of any park without knowing all the facts…having an open mind and all.

    And John Floyd, your intimidation tactics have not gone unnoticed. I post in my first name. So what? My choice to post under whatever name I choose is my business, not yours. There is no policy against it. Ignoring my decision to use only my first name, does not make you honorable it makes you an a………! The Ann Arbor Chronicle has transformed into the Ann Arbor Curmudgeon and could use some other voices in its comments section.

  13. August 18, 2012 at 10:19 am | permalink

    Ha, Diane, your style and voice are unmistakeable. I spotted you on your first comment of this series.

    We’ve been around this block before but I continue to believe that people in public life (which you are, as a commission member) should post in their actual names. Be accountable.

  14. By Diane
    August 18, 2012 at 10:37 am | permalink

    @ Vivienne I am not a person in public life. I am a volunteer on a commission, not an elected official or anyone who has ever ran for an elected office. You and John Floyd have ran for office. If I debate your stance on things, it is extremely unethical of both you and John Floyd to try and scare me into silence by invading my privacy. You are the candidates with campaign platforms, I am a member of the public.

    It is not for you or anyone else to choose for me what I should do. You do not get to take my privacy away from me especially when it is done for intimidation.

    As for accountability, I am not hiding. I used my first name and people can tell who I am just like you said. My reasons are my own why I don’t want to use my last name. You and others may think it is justified. I think it just shows what type of people you really are.

  15. August 18, 2012 at 10:50 am | permalink

    A note regarding the issue of screen names versus actual names in commenting.

    First, the comment in [11], which attempts to reveal the identity of another commenter, is not consistent with the general Chronicle commenting policy of “Be Generous.” If someone chooses to comment using a screen name that is not the same as their actual name, then we expect that others will generously assume there’s some good reason for that. If readers think that someone’s writing is recognizable as unmistakably that of some specific person, then that’s great fodder for a conversation at a bar, but not really consistent with what we’re trying to accomplish here.

    The comment in [11] appears in the thread, despite not being generous in that specific regard, because either (1) The algorithm that senses potential problems was not triggered and it was automatically approved; or (2) I was asleep at the switch when I moved the comment out of the moderation queue.

    On the general issue of screen names compared to real names there is a vast corpus of argument stretching back to the beginning of remote online communication. I have nothing new to add to that.

    For The Chronicle’s part, we appreciate the fact that many commenters are willing to use their actual names in their comments. But our policy does not preclude the alternative of a screen name. On the whole, I think this has worked out for the good. While the world would not end without the inclusion of remarks by, for example, “abc” or “Marvin Face”, I think on balance the remarks of screen-named commenters add to the richness of the commentary in a positive way. It can be frustrating not to know who these people are. Marvin sounds like an interesting person – based solely on this statement: “I have recorded at Sun Studio using the same mic as Mr. Cash.” Though that makes me curious about him, that’s just too bad for me.

    Personally, I don’t find it at all persuasive when one commenter seeks to diminish the merit of another’s comment by “calling coward” – either implicitly or explicitly – based on a choice to use a screen name.

    This comment is meant to end any discussion of screen names versus real names in this comment thread.


    Dave Askins
    Editor, The Ann Arbor Chronicle

  16. By Orphaned Comment
    August 18, 2012 at 12:45 pm | permalink

    Comment has been relegated to the orphaned comments page: [link] I’m not kidding, when I write: “This comment is meant to end any discussion of screen names versus real names in this comment thread.” — Dave Askins

  17. By Orphaned Comment
    August 18, 2012 at 12:46 pm | permalink

    Comment has been relegated to the orphaned comments page: [link] I’m not kidding, when I write: “This comment is meant to end any discussion of screen names versus real names in this comment thread.” — Dave Askins

  18. By Orphaned Comment
    August 18, 2012 at 2:12 pm | permalink

    Comment has been relegated to the orphaned comments page: [link] I’m not kidding, when I write: “This comment is meant to end any discussion of screen names versus real names in this comment thread.” And with that, this comment thread is closed. I have actual work to do today. — Dave Askins