That 90-day window ended last Monday, May 9, without a resubmission by de Parry, according to city of Ann Arbor planning staff. The project could still be submitted to the city for review, but would not enjoy the fee reduction offered by the city council in February. A public engagement meeting, which is required by city ordinance for new projects, was held on March 25, 2011 for the Heritage Row project.

At the March 25 meeting, held at the downtown location of the Ann Arbor District Library, the presentation included the most recent revisions that had been reviewed by city staff. The last proposal reviewed by the city includes the following revisions: (1) the top floor of the new south building would be removed from the design; (2) the density would be reduced from 79 units to 76 units and the number of bedrooms would be reduced from 154 to 147; (3) the project would include five affordable units at the 50% AMI (average median income) level, in addition to six affordable units at the 80% AMI level; and (4) the three new buildings would be LEED certified.

The residential project, located on the east side of South Fifth Avenue, would renovate seven houses and construct three new apartment buildings behind those houses, with an underground parking garage. The council initially rejected Heritage Row on June 21, 2010, with a 7-4 vote in favor. It required an 8-vote majority for approval, due to a petition filed by adjoining property owners. The city council then reconsidered the project at its July 6, 2010 meeting, and it failed again, on a 7-3 vote. Then at the council’s Dec. 6, 2010 meeting, some councilmembers seemed poised to suspend council rules to allow another reconsideration, but the vote to suspend council rules failed.

Instead of resubmitting Heritage Row, another possibility for de Parry is to begin construction on a different project at the same location, which the city council approved as a “matter of right” project on Sept. 21, 2009. That project, called City Place, would include two buildings separated by a surface parking lot with 24 total units, each with six bedrooms.

At its March 15 meeting, the Ann Arbor city planning commission had unanimously recommended approval of the Packard Square site plan. [Chronicle coverage: "Packard Square, Fraternity Site Plan OK'd"]

This brief was filed from the city council’s chambers on the second floor of city hall, located at 301 E. Huron. A more detailed report will follow: [link]

Last Thursday, news of a breach in the earth-retention system of a downtown Ann Arbor construction site had reached all the way to Detroit’s Channel 4 News. Channel 4 sent a crew Friday evening to file a report. It was tagged on the Channel 4 website with the summary: “An Ann Arbor construction project is sinking, literally.” Chalk that up to the hyperbole of television news.

Top: View to the northeast along Fifth Avenue from Valiant Partners' concept for a conference center and hotel, proposed for the top of the Library Lot underground parking garage. Bottom: Breach in the earth retention system for the underground parking garage currently under construction on the Library Lot.

While the roughly 640-space underground parking garage, being built by Ann Arbor’s Downtown Development Authority, is not sinking in any way, a conference center and hotel proposal for the top of the underground structure might be sinking.

At first glance, the 190,000-square-foot project proposed by Valiant Partners Inc. seems like it’s on a path to approval by the city council. In November 2010, an advisory committee – charged with evaluating responses to a city of Ann Arbor request for proposals issued in late 2009 – finally settled on the Valiant proposal as the best of the six the city had received.

That decision came with the aid of Roxbury Group, a consultant hired to help evaluate the proposals and to negotiate an agreement with a developer. At an early March meeting of the advisory committee, a Roxbury representative presented a draft letter of intent, which had been worked out by Valiant and Roxbury, to be signed by the city of Ann Arbor and Valiant. The committee voted unanimously to recommend that the city council consider the letter of intent.

Then, on March 14, the city council held a work session on the proposed conference center. The council heard essentially the same presentation about the letter of intent that Roxbury had made to the advisory committee. The council is scheduled to consider the letter formally at its second meeting in April, which is now scheduled for Tuesday, April 19, to accommodate the first night of Passover. The letter of intent calls for a development agreement to be presented to the city council within four months of signing the letter of intent – which would mean sometime near the end of August 2011.

But I think it’s clear at this point that a development agreement between Valiant and the city of Ann Arbor to develop the Library Lot would not achieve the necessary eight-vote majority for an actual real estate deal. That’s why I think the city council might vote down the letter of intent – even if there are at least six councilmembers who would support going forward with the letter, which is all it would take for the letter’s approval.

I base that conclusion on remarks made by councilmembers at the March 14 work session, and regular politics as reflected in the council’s history – both recent and ancient. But before considering politics, let’s dig into some really ancient history – the kind measured in geological time – to gain some additional insight into why a pile of dirt spilled unintentionally into the underground parking garage construction pit.

Earth-Retention Wall Breach

On Thursday afternoon, March 24, a sinkhole appeared behind the Jerusalem Garden and Earthen Jar restaurants, on the north side of the underground garage construction site. Where did that dirt go? It had poured through a small breach in the earth-retention wall about 30-feet below grade.

Earth-Retention Wall Breach: Jerusalem Garden

When I visited Jerusalem Garden on Friday morning, owner Ali Ramlawi was preparing for regular business after the sinkhole had forced the evacuation of his restaurant the day before.

That morning, he seemed even a little more exasperated than he did in October 2010, when he’d addressed a meeting of the DDA board during the time reserved for public comment. On that occasion he’d ticked through a variety of concerns, including the underground parking garage, which he called the DDA’s “civil engineering project.” Ramlawi was also one of the plaintiffs in a lawsuit filed in August 2009 over the construction of the garage.

On Friday, Ramwali told me how one of his employees had driven over the spot where the sinkhole opened up, just 10 minutes before the earth gave way. He considered it just lucky that nobody got hurt.

Earth-Retention Wall Breach: Geology – It’s Sand, Man

So how exactly does dirt that far down pour through a gap that appears to be just a few feet wide?

To get a better idea of why that might happen, I talked to Kevin Foye. Foye is a Ph.D who works as a project engineer with CTI & Associates, a civil engineering firm in Wixom, Mich. How earth settles and moves is part of Foye’s specific area of expertise – he recently gave a lecture as part of the University of Michigan’s Department of Civil and Environmental Engineering Geotechnical Engineering Seminar Series, called “Differential Settlement of Landfill Foundations Modeled Using Random Fields.”

As it happens, Foye had taken photos of the construction site a few weeks earlier, and was somewhat familiar with the site. He described how not all soil is the same – it’s some combination of sand, silt and clay. The Library Lot site in Ann Arbor, he continued, is a little different – it’s predominantly sand. So it’s going to be more apt to move through a slot like the one that opened up in the retention wall.

The make-up of the soil at the site as predominantly sand was also reported by then-library board member, and geologist, Carola Stearns in a presentation she gave to the board back in September 2010. She described the site as 55 feet of coarse, well-bedded, well-sorted sand and gravel – the product of glacial activity.

And at the end of the day Friday, I spoke with Pat Podges, the Christman Company’s construction manager on site; he also described how the dirt on the site would just run through your fingers when you pick up a handful.

Earth-Retention Wall Breach: Don’t Tear Down that Wall

On Friday, Podges also confirmed that the earth-retention system used at Ann Arbor’s Library Lot site is the same one the Christman Company had previously used in building an underground parking garage in Grand Rapids, as part of the Michigan Street Improvement project. The Ann Arbor Downtown Development Authority awarded the pre-construction services contract to Christman back in August 2009, partly based on the strength of that experience.

Site of the breach in the earth-retention wall at the site of the Library Lot construction. The view is to the north.

The earth-retention system was also familiar to Foye, who described what he’d seen when he’d visited the site a few weeks ago. Visitors to downtown Ann Arbor last summer will likely remember seeing the tall drill operating on the site and the vertical pieces of steel that were then pounded into the holes – down to the silt layer that the water table sits on. Those vertical pieces of steel were subsequently encased in concrete.

Between each pair of steel-beam reinforced concrete columns, additional inner columns were poured – but not reinforced with steel beams. Podges described how for most of the steel-reinforced pairs, two additional columns were poured between them, but for some pairs, three additional columns were poured. The idea is that the columns between the steel beams interlock with each other, wedging against the steel beams.

This specific earth-retention system, called a “tangent wall” system, is used on the north face of the site, but not everywhere. Podges explained it’s used there because it’s better at preventing water from entering the pit than an alternative wood lagging system, which is used in some other locations. In the wood lagging system, heavy timbers span the vertical steel beams.

Chronicle readers might remember that outgoing DDA chair John Splitt received a memento of appreciation for his service, which was fashioned from a piece of timber left over from the wood lagging system.

A bucket is filled with gravel before getting hoisted over to back-fill the sinkhole.

In addition to the structural elements of the basic earth-retention wall, additional supporting elements include: (1) “whalers” – steel beams that are bolted horizontally across vertical members; and (2) “tie-backs,” which are essentially guy wires installed into the face of the wall.

To install tie-backs, Foye explained that a small-diameter hole is drilled from the face of the wall on the pit side, around 30-50 horizontal feet into the surrounding soil. That hole is filled with high-strength grout. A steel rod is inserted into the hole and bolted to a bearing plate on the face of the wall. That rod is then tensioned with a hydraulic jack to the pressure that’s been calculated to be appropriate for that specific location, then locked off at that specified pressure. Foye said in these kinds of applications, the pressure would be in the tens of thousands of pounds.

When construction of the parking garage is complete, the retention wall elements will remain in place, even though they won’t actually be needed to hold back the earth, Podges told me. The floors of the deck, which are braced against each opposing wall, will provide adequate opposing force. The tensioned tie-backs nearer to the surface will likely be de-tensioned, Podges said, because if someone were excavating years from now and hit one of the rods, it would be best for it not to be under tension.

A construction worker prepares to release the load of gravel into the sinkhole. Note the safety tether attached to his harness. In the background is the Ann Arbor District Library building, to the south of the construction site.

It’s apparent, from looking at photos as well as at the site itself, that the element that failed was part of one of the inner columns in the tangent wall system. And it failed at a point just below a horizontal reinforcement (a “whaler”) that was bolted onto the face of the retention system. That whaler spans six of the steel-beam reinforced columns. Foye said that based on photos he’d seen, it appeared that for some reason, there was a loss of the interlock between the inner columns – it would take further investigation to figure out what was different on Thursday from all the days before, during the time the pit has been open.

Podges said that the analysis of why the breach occurred is being done by Soil and Materials Engineers Inc., the company that designed the retention system. But they’ve determined that the problem was isolated. They’ve checked all the motion monitors that are attached to various points of the earth-retention wall, as well as the surrounding buildings – and everything is still in the same place, Podges said. Visual inspection of the perimeter has revealed no obvious other problems.

By Friday morning, a Christman crew had begun filling in the sinkhole with coarse gravel. The night before, a concrete cap had been poured over bags of gravel that had been dropped in to plug the breach from the sinkhole side. Additional repairs will need to be undertaken to the pit side of the wall – they appeared to be partly underway on Saturday morning, when I passed by the construction area. A team of workers on a platform had been lowered by crane to the breach point.

According to a briefing email sent out early Sunday morning by Susan Pollay, executive director of the DDA, among other measures, ground-penetrating radar will also be used to check for any other voids that might have developed.

What Is the City Council Thinking?

The closest thing we have to ground-penetrating radar to detect any voids in the heads of city councilmembers is simply to pay attention to what they say, when they do their work in public view. And based on that kind of radar, I don’t detect any voids on the conference center issue – but it does look to me like there could be sufficiently solid opposition to doing a real estate deal, that the council could vote down the letter of intent before even getting to that point.

City Council: Work Session – Background

At the city council’s March 14 work session about the conference center proposal, the Roxbury Group’s David Di Rita walked the council through the draft letter of intent. He’d done the same thing for the RFP review committee at its March 8, 2011 meeting. Here’s how the 190,000-square-foot project breaks down, as described in the draft letter of intent:

(i) Core elements:

• 150 hotels units – 87,000 sq. ft.
• Conference center – 26,000 sq. ft.
• Restaurant/Retail – 6,000 sq. ft.
• Public space/Plaza

(ii) Additional elements

• Office space – up to 48,000 sq. ft.
• Residential condos – up to 22,000 sq. ft.

That square footage breakdown is slightly different from Valiant’s original proposal, which included 12 condo units compared to the six in its revised proposal. More significantly, the size of the conference center in Valiant’s revised proposal is 6,000 square feet smaller than the 32,000-square-foot facility in the original proposal.

At the March 14 city council work session about the proposed Valiant conference center: (left to right) Sandi Smith (Ward 1), Stephen Kunselman (Ward 3), Mike Anglin (Ward 5) and Tony Derezinski (Ward 2).

The reduction in condo units and the size of the conference center is offset by the possible addition of up to 48,000 square feet of office space. [See page 27 of the .pdf for Roxbury Group's report, submitted in November 2010, for a breakdown of the contrast between Valiant's original and revised proposals.]

DDA board member Newcombe Clark has expressed some skepticism to The Chronicle that prevailing rental rates for office space in downtown Ann Arbor would be adequate to support new construction of office space. [Clark has worked in real estate, most recently with Jones Lang LaSalle, but is no longer with that firm.]

But it’s the revised configuration of the square footage that has allowed Valiant to eliminate from its proposal a request that the city of Ann Arbor issue bonds to fund the project’s construction. The use of public bonds as a financing tool has been described as a deal-breaker, even by the chair of the RFP review committee, Stephen Rapundalo, who represents Ward 2 on the city council. And Rapundalo is widely perceived as one of the strongest supporters of a conference center at the Library Lot location.

Remaining in the letter of intent, however, is a requirement that the city of Ann Arbor would own the conference center. Valiant has pitched this as a benefit to the city, but it carries with it potential for liability as well.

City Council: Work Session Views – Legal Ownership

It was the conference center ownership question that drew the specific attention of Sabra Briere (Ward 1) during the work session. She told the Roxbury Group’s David Di Rita that the whole proposal seemed to be predicated on a belief that the city of Ann Arbor wants to own a conference center. Di Rita responded in a way that suggested that the ownership question is not a closed issue and could be subject to further discussion.

Briere’s reply was fairly sharp. She told Di Rita that maybe there is stuff in the letter of intent that doesn’t need to be in there.

The city’s relationship to the conference center, as described in the draft letter of intent, is one of ownership. The city would have an agreement with the developer whereby the developer would manage the center. And just as long as the developer holds that management agreement, the city would not be liable for costs related to operation and maintenance.

The draft letter of intent also describes how the developer could itself use the money being paid to the city for development rights, to develop the conference center. That strategy only makes sense in a scenario where the city owns the center. It reduces to this: At least part of the compensation the city would get for allowing the developer to build the project – instead of a lease payment or property taxes – is ownership of the conference center.

But ownership does not translate directly to a financial benefit to the city, any more than ownership of additional parkland does. Stephen Rapundalo (Ward 2) has frequently pointed out that continued acquisition of additional parkland, without an adequate revenue source for maintenance, has led Ann Arbor to a situation where it can maintain the parkland it has only with great difficulty. And the same principle applies to ownership of a conference center.

So far, Valiant has tried to make its financial offer more attractive to the city by eliminating the need for the city to issue bonds. It’s conceivable that the letter of intent the council considers on April 19 will continue that trend by eliminating the requirement that the city own the center, and that Valiant will find some other way to pay for that part of the deal.

But right now, we’re presented with a tale of a profitable project that even the teller of the tale apparently doesn’t believe. Frankly, I believe that a place where you can host a 1,200-person conference in downtown Ann Arbor without breaking a sweat would be a well-used and welcome facility. You could imagine some kind of center of intellectual inquiry – that’s not necessarily a university – sprouting up in concert with the Ann Arbor District Library’s downtown location. Indeed, Valiant representatives have talked a lot about their desire to partner with the library.

But I don’t think Valiant really trusts their own narrative. If they did, we would not see a proposal for the city to issue bonds, or for the city to own the conference center, or any other creative approach to financing. Instead, we’d see a straight-up offer to lease or purchase development rights for some dollar figure.

What should that dollar figure be? Before the work session began, local developer Peter Allen told The Chronicle that a rule of thumb for land value would be 10-20% of the total value of the planned development. So if you’re planning to build a $54 million project, then $5.4 million would be a low-end ballpark number for the land value.

You might make a case that the city should accept a somewhat lower offer than Allen’s rule of thumb. An outline of that case might go something like this: (1) Look, this conference center of intellectual inquiry that we’re going to build is not going to be as profitable as, say, a project consisting of mostly residential units, and here’s why; (2) A conference center is going to have a greater positive economic impact to the downtown than just residential units would have, and here’s why; (3) You should be willing to accept a slightly lower direct financial return to the city of Ann Arbor’s general fund, in exchange for a greater positive economic impact overall, and here’s what that impact looks like.

If Valiant were inclined to make that kind of offer, however, I think they’d already have done that – between November 2010 and March 2011, when they negotiated the draft letter of intent with the Roxbury Group. But a simple, straightforward lease or purchase of development rights did not emerge from that negotiation.

The letter of intent is to be considered by the council at its April 19 meeting. Among the revisions to be added to the final draft of a letter of intent is language that makes clear that the city of Ann Arbor will not bear any risk. It’s not yet clear what linguistic form those revisions would take.

Work Session: Work Session Views – Ownership of Advocacy

Near the conclusion of the March 14 work session, Marcia Higgins (Ward 4), who was chairing the session in mayor John Hieftje’s absence, floated a question about who would take responsibility for making revisions to the letter of intent. Here’s how she put it: “Who owns those revisions now?” City administrator Roger Fraser indicated that he felt revisions fell now into the category of “staff work” – the RFP committee’s work was done, he said.

Higgins question about “ownership” of a specific task – like revising a document – could just as well be asked about the entire conference center proposal. Up to now, the project seems to have been owned by Roger Fraser. He first introduced the council to the existence of Valiant’s proposal at the 2009 budget retreat.

Chronicle file photo from the January 2009 Ann Arbor city council budget retreat. City administrator Roger Fraser, left, talks with Christopher Taylor (Ward 3). They're looking at conceptual drawings for a possible conference center on top of the underground parking garage now being built at the Library Lot between Fifth and Division streets.

On that occasion, he’d announced the existence of a proposal for a conference center, and told councilmembers they could look at the conceptual drawings. But he would not disseminate the proposal publicly – at the request of the proposers.

Later, it was revealed he’d done that against the explicit advice of the council.

With Fraser’s departure at the end of April to become a deputy treasurer for the state of Michigan, it’s not clear who might take ownership of Valiant’s proposal on the city’s side to make sure that an acceptable development agreement is struck, based on a letter of intent. Even if Susan Pollay, the DDA’s executive director, might seem a logical candidate to champion the project through to completion, her remarks at the work session suggest she’s not necessarily publicly embracing that kind of role.

Pollay began the work session by telling the council that she was there as a city staffer. The RFP had been issued through the city’s community services area, and only a few months after the RFP was issued, the community services area administrator, Jayne Miller, left the city to take a different position. Because the project was of interest to her, Pollay said, she’d volunteered to help out as needed. But she stressed that the project is not a DDA project – she’s just assisting.

Before the March 14 work session: Susan Pollay, executive director of the DDA, and David Di Rita of The Roxbury Group, which acted as a consultant for the RFP review committee.

On the council itself, Sandi Smith (Ward 1) might be a logical choice to champion the project through to final approval. In fact, at least as far back as March 2009, Smith has pushed specifically for planning some kind of use on the top of the underground parking structure. On that occasion, she introduced a successful resolution at the DDA’s March 2009 board meeting that articulated the DDA’s readiness to support the planning process for the top of the structure.

But as recently as the March 21, 2011 city council meeting, Smith has demonstrated that she can be a fiscal hard-ass, who might give priority to the city’s near-term bottom line over long-term overall economic impact. At that meeting, she was the sole voice of dissent in voting against an amendment to a state grant application that prioritized support for a skatepark over improvements to the Gallup canoe livery. She had established during deliberations that the canoe livery improvements would necessarily add revenue, whereas the skatepark was a question mark.

With the current murky level of detail available, use of the top of the parking garage as additional surface parking might actually mean more for the city’s bottom line than striking a deal with Valiant. And at the March 14 work session, Smith described the conference center proposal as “one of the largest decisions that I will have had to make in my brief tenure here.”

So I don’t think Smith is likely to pursue the conference center with the single-minded bull-doggedness of purpose that would likely be required for its eventual approval. The project needs someone to champion it who is absolutely dedicated and practically blind to all other options, if it’s to win ultimate approval from the council, and I don’t think Smith is that person.

As chair of the RFP committee, Stephen Rapundalo would also be a logical candidate to take ownership of the project – even if the committee’s work is over. But to be successful, whoever takes ownership of the project will need to enjoy a certain amount of deference from the council as a whole. And based on deliberations at the March 7, 2011 council meeting, his fellow councilmembers aren’t willing to give Rapundalo that deference, even when he clearly has earned it.

On that occasion, the council voted, over his objections as chair of the council’s liquor license review committee, to allow the appointment of a single hearing officer for liquor license non-renewal hearings – Tony Derezinski (Ward 2) – instead of appointing the entire committee as the hearing board. Any councilmember who voted with Derezinski on that – which was everyone except for Sabra Briere (Ward 1) and Marcia Higgins (Ward 4) – gave little weight to Rapundalo’s record of service on the council’s liquor committee since its very creation back in 2007. So I think the council is unlikely to show Rapundalo any deference when it comes to the conference center development agreement.

Work Session Views: Decision Time?

Historically, the Ann Arbor city council’s inclination has been, whenever possible, not to make a decision at all. The current status of the city’s Argo Dam is a good example of that. In early 2009, the city embarked on a public engagement process about the Argo Dam, which led the community to believe that the city council would be making a major policy decision that summer about leaving the dam in place or removing it.

But the council has never voted on the issue, which formally leaves the question open, though from a practical point of view, the dam is still in place. Margie Teall (Ward 4) and Carsten Hohnke (Ward 5) have remained vigilant in making sure that subsequent decisions made the council – like approving construction of a portage-free bypass around the dam – don’t necessarily preclude the dam’s eventual removal.

From the time of the Library Lot RFP issuance, councilmembers were eager to stress that the issuance of the RFP did not represent a decision to develop any of the proposals that might be submitted. After receiving proposals, it was again stressed that the city was under no obligation to accept any of them. And after identifying Valiant as the best of the six proposals received, the RFP review committee stressed that there was no obligation to do a deal with Valiant.

At the work session, councilmembers again appeared eager to downplay the significance of approving a letter of intent. Sandi Smith (Ward 1) characterized it as a “going steady” phase, with a prenuptial agreement to be possibly realized in the form of a development agreement. Margie Teall (Ward 4) indicated she was satisfied with David Di Rita’s characterization of the letter of intent as an outline to get to a final deal, but not the deal itself.

But at the RFP committee meeting in early March, Eric Mahler indicated his skepticism that the letter of intent did not place an obligation on the city to see the negotiations through to the proposal of an actual real estate deal. Mahler, an attorney, represented the city’s planning commission on the committee.

And at the council’s work session, the same concern about the contractual nature of the letter of intent was expressed by Stephen Kunselman (Ward 3), who did little at the session to hide his overall displeasure with the whole proposal. He stated flatly that he felt the arrangement being proposed was “very squirrelly,” and offered up his assessment that when the city went fishing for development proposals, “we catch nothing but leeches that want to suck on the public dollar.”

Even if Kunselman’s colleagues on the council may have rolled their eyes at his rhetorical flourish, they likely took to heart his point about the contractual nature of the letter of intent. It’s not “just another step” in the process where the city can take any action, or no action, for any reason at all. This is, in fact, a decision point of some kind that requires a proposal to come before the council.

What kind of decision point does the letter of intent represent? I think it’s somewhat similar to appointing a study committee to make a recommendation on establishing a historic district in a particular area. The council has a recent record to show that appointing a committee does not necessarily result in establishing such a district. At its July 6, 2010 meeting, the council rejected a study committee’s recommendation that a historic district be established along Fourth and Fifth Avenues, just south of the Library Lot. I can imagine that some councilmembers might even draw upon that episode as an analogy: Just as appointing a committee did not obligate us to vote for a historic district, we are not obligated to approve the development agreement that emerges in four months time after the letter of intent is signed.

But I think that for any councilmembers who appeal to that analogy, there will be others who are persuaded by a different historical episode involving the non-appointment of a historic district study committee – at the council’s Oct. 20, 2008 meeting. The committee in question would have studied an existing district, the Old Fourth Ward, to consider removing one property from the district. Then representing Ward 3, Leigh Greden argued against even appointing a committee, independent of what recommendation the committee might eventually make. Here’s how The Chronicle reported Greden’s sentiments:

Councilmember Leigh Greden suggested that if a recommendation came back from the committee to remove the property, he still did not imagine he could vote for its removal – acknowledging that he’d perhaps made that conclusion too soon.

Put coarsely, if you’re going to vote no later, you might as well vote no now.

At the March 14 city council work session: Carsten Hohnke (Ward 5).

I think some councilmembers might follow that same logic in weighing their vote on the letter of intent between Valiant and the city of Ann Arbor – a letter that is supposed to lead to a development agreement. An additional factor playing into that logic is that the real estate deal associated with the development agreement will need eight votes for approval by the city council.

So even if the letter of intent might have sufficient votes for approval, the real estate deal already looks like it will fall short of the eight-vote requirement.

Based on their remarks at the work session, Briere and Kunselman are likely no votes, as is Mike Anglin (Ward 5). At the work session, Anglin recited a laundry list of criticism of the project, from insufficient public process to the project’s lack of viability.

Anglin’s Ward 5 colleague, Carsten Hohnke, expressed his view at a 2010 Democratic primary election forum that the conversation about what should go on top of the library should start fresh, with a clean slate:

Hohnke said he is not convinced that any of the proposals that had been submitted are good ones, and it’s important to remember that a request for proposals does not need to be acted on by the city. If none of them meet the satisfaction of the community, there’s no need to accept one, he stressed.

Hohnke continued that he would like to see a renewed effort of community conversation – starting from a blank slate, with no preconceptions. What is the best solution for this vital parcel right in the center of our community?

Hohnke’s contribution to the March 14 work session conversation hinted that he was still thinking along the lines of starting fresh. He asked Rapundalo to review for the council how the RFP committee had winnowed down the six proposals to the final two proposals, both of which called for some kind of hotel and conference center. Among the six proposals that did not make the final cut was one for a community commons put forward by Alan Haber and Alice Ralph – who both attended the work session. [Chronicle coverage from January 2010: "Hotel/Conference Center Ideas Go Forward"]

Mayor John Hieftje’s vote could be purely political. It was Hieftje’s penchant for using the privilege of voting last in any roll call vote, to cast such purely political votes, that finally led the council in 2006 to change its rules for roll calls. The start of a roll call vote now rotates among councilmembers.

With four likely votes against the letter of intent – Anglin, Briere, Kunselman, Hohnke – there’s sufficient safety in those numbers that Hieftje could join them. With potentially five votes against the letter of intent, it’s hard to see how Valiant or other councilmembers would want to invest time and energy in putting together a development agreement that’s not going to meet the eight-vote minimum.

Certainly in the past, the council has been reluctant to proceed with only thin majorities. In early 2005, DDA board members were told that there were at least six votes in support of the 3-Site Plan to develop city-owned downtown properties – all the plan needed to go forward. But then councilmembers Leigh Greden and Chris Easthope counseled against placing the 3-Site Plan on the council’s agenda, in order to generate additional support on the city council. By late in 2005, the public engagement process had actually seemed to diminish rather than increase council support, and the 3-Site Plan never made it to the council’s agenda.

Conclusion: Get the Dirt out of the Hole

Besides offering a rule of thumb for calculating land value, at the March 14 work session Peter Allen also told me he thinks the entire Library Lot block needs to be master planned, before trying to develop that individual parcel. For a course he teaches at the University of Michigan, Allen assigned his students in 2009 to complete an exercise like that. [Chronicle coverage: "Column: Visions for the Library Lot"]

Restarting the conversation about the Library Lot – as Hohnke suggested back during his 2010 Democratic primary campaign – is a process that would be consistent with Allen’s suggestion to master plan the whole block. That conversation could take place in the context of a proposal currently being worked out by the DDA and the city that would assign the DDA responsibility to facilitate the development of other uses for downtown city-owned surface parking lots. That proposal, however, is currently stalled.

I think any use of the space above the underground parking garage needs to be considered as a coherent part of the city’s thinking, not just with respect to that entire block, but also in connection with the Ann Arbor Transportation Authority’s countywide transportation plan, the possible construction of a new downtown library – which has been put on hold, but might re-emerge – and even the current discussion of a corridor improvement authority along Washtenaw Avenue.

The sooner the city council votes down Valiant’s specific proposal for its conference center, the sooner we can settle into a process that might well produce a community consensus for a different kind of conference center – one that includes a real vision for the kind of inquiry and collaboration that might take place at the conferences such a center might host.

Valiant’s proposal is, I think, like the pile of dirt that poured through the breach in the retaining wall, piling at the bottom of the underground parking garage site. As a guy in a hardhat told me Thursday morning, the pile of dirt wasn’t hurting anything, but it was in the way. Valiant’s current proposal is like that pile of dirt, because it just needs to be cleaned out of the hole for now. If we need more dirt, there’s plenty more where that came from.

We shouldn’t adopt the attitude that if we let Valiant’s conference center proposal sink out of view, we’ll lose forever the opportunity to enjoy the benefits that a conference facility in downtown Ann Arbor might bring.

Why do I think that? It’s because I believe in second-hand learning. At the DDA’s January 2011 board meeting, management assistant Joan Lyke’s last one before her retirement, she addressed a few remarks to the board, summarizing what she’d learned working at the DDA.

On Lyke’s bulleted list was this: “If an idea is good, it will always resurface.”

The postponement at the March 7 meeting was accomplished on a 10-1 vote, with Sandi Smith (Ward 1) casting the dissenting vote. Smith also serves on the DDA board. Christopher Taylor (Ward 3) noted that the DDA appeared to be interested in creating a contractual, binding relationship – instead of working based on city council and DDA board resolutions – and in light of that he wanted to postpone the issue until the council’s first meeting in April.

The two “mutually beneficial” committees of the city council and the DDA board met for the first time since the council’s Jan. 18 meeting on the morning of March 7, providing little lead time for the discussion by the whole council of the latest proposal. The committees are negotiating a revision to the contract under which the DDA manages the city’s public parking system, as well as a framework under which the DDA would lead the redevelopment of city-owned downtown surface parking lots.

At its Jan. 5 board meeting, the Ann Arbor DDA had passed a resolution urging passage of the council resolution, which had been circulated as early as the city council’s Dec. 20, 2010 meeting, when Taylor attached a copy of the the draft resolution to the council’s meeting agenda, and alerted his council colleagues to it at that meeting.

This brief was filed from the boardroom in the Washtenaw County administration building, where the council is meeting due to renovations in the city hall building. A more detailed report will follow: [link]

Outgoing management assistant Joan Lyke was honored by the board with a resolution acknowledging her service to the DDA. She gave a few remarks on the subject of what she'd learned working at the DDA.

Following the regular board meeting was a board retreat that lasted until around 3 p.m. The board’s retreat focused on the contract under which the DDA manages the city’s parking system. It runs through 2015, but is being renegotiated so that the city receives more of the parking system’s revenue than is currently stipulated in the contract. The retreat will be left to a future Chronicle report.

Also left to a future report will be a third meeting held later Wednesday evening, which was tied to the DDA board meeting via the theme of surface parking lot development – though it was not a DDA meeting. It was hosted by First Hospitality Group Inc., a developer that’s proposing a new 9-story, 104-room hotel at the southeast corner of Division and Washington streets. Held at the downtown branch of the Ann Arbor District Library, the gathering satisfied the city’s citizen participation ordinance for new site plans.

Besides The Chronicle, four others attended all three meetings – DDA board chair Joan Lowenstein, chair of the downtown citizens advisory council Ray Detter, newly elected Ann Arbor library board member Nancy Kaplan, and Ann Arbor city councilmember Sabra Briere. 

DDA-Led Development Plan

In reporting out from the DDA’s “mutually beneficial” committee, Roger Hewitt indicated that the DDA’s committee had met with the city council’s corresponding committee twice in December. The two committees are currently negotiating two issues: (1) the parking contract under which the DDA manages the city’s parking system, and (2) a plan for the DDA to lead the development of downtown city-owned surface parking lots.

The resolution before the DDA on Wednesday expressed support for the city council resolution that the council will consider at its Jan. 18 meeting. The city council resolution has been circulated to councilmembers. Christopher Taylor (Ward 3) attached a copy of the the draft resolution to the council’s Dec. 20 meeting agenda and alerted his council colleagues to it at that meeting.

The proposal would establish phases:

• Phase I – DDA assembles information and brings in development expertise. This includes information from the city’s relevant boards and commissions, Ann Arbor SPARK, and real estate professionals.
• Phase II – Visioning downtown development. This includes building on previous work done, for example, during the Calthorpe process, and would involve work sessions with city council, the city’s planning commission and public engagement.
• Phase III – Taking these ideas and shaping a strategic plan for city council approval. This phase will yield the draft of a “parcel-by-parcel” plan, with the idea that it be incorporated as an amendment to the city’s Downtown Plan.
• Phase IV – Implement the parcel-by-parcel plan. This entails selecting a specific parcel and developing a request for proposals (RFP) for that parcel. This process would then be repeated for other parcels.

Two key resolved clauses would require the city administrator to place items on the agenda for the council to consider, and would require the city to reimburse the DDA for expenses, if the council were to decline a specific site plan for any reason other than a failure to meet zoning regulations.

RESOLVED, that for items above requiring City Council approval, the City Administrator shall place such items on the agenda of City Council no later than thirty (30) days after the City Administrator’s receipt thereof and determination that such items comply with City requirements. In the event that such item is not voted upon within thirty (30) days of being placed upon the agenda, then at each subsequent meeting of the City Council where the item does not appear on the agenda, the City Administrator during Communications from the City Administrator shall provide a status report as to reasons for the item’s failure to appear on the agenda.

RESOLVED, that in light of the DDA’s expenditures of Phase IV monies in reliance upon City Council’s approval of the Parcel-by-Parcel Plan, any resulting RFP, and the DDA-proposal recommendation, if City Council declines to approve a Parcel site plan for any reason other than the site plan not complying with applicable zoning regulations, then the City of Ann Arbor shall reimburse the DDA for all direct DDA Phase IV costs related to such Parcel.

Newcombe Clark wanted to know what the timing of the council’s resolution would be and what effect the DDA’s resolution had. Hewitt explained that the DDA’s resolution would serve to inform the city council that the parcel-by-parcel development was something the DDA is interested in doing.

Clark was concerned that the DDA’s resolution not be construed as the board’s input or feedback on the council’s resolution. He wanted to know whether the resolution superseded having a contract, saying that the resolution was not the same as having an agreement to develop surface parking lots. Hewitt responded by saying that the resolution expressed that the DDA board “embraces this responsibility.”

Clark then focused on the phrase “applicable zoning” in the final “resolved” clause – did that include the design guidelines, which have not yet been finalized?

Gary Boren allowed that he’d been one of the more critical members of the mutually beneficial committee. He said he could not support the resolution unless it was to be understood as meaning that the fine points of an agreement on how to develop surface lots are yet to be worked out. As it stood, he said, the resolution doesn’t nail down all that much.

Leah Gunn characterized the resolution as the expression that philosophically, the council’s resolution was a good draft for discussion. John Mouat said the mutually beneficial committee would disappear when the negotiations with the city are done, so he raised the question of which DDA committee would take up the issue. He wondered what the next step would be. Mouat asked if it would be helpful for the city council to have some feedback on their resolution.

Board chair Joan Lowenstein noted that the council resolution was more specific than many of its resolutions, and said she hoped the city council would pass it. The next step, she said, would be to turn the resolution into something more than just a framework.

Lowenstein allowed that the council resolution is clearly not a contract – it’s just a resolution. There could perhaps later be a contract, she said.

Clark proposed an amendment to the DDA’s resolution of support, adding the clarification that the DDA board looked forward not just to the approval of the city council’s resolution, but also to “working out the details [suggested by Bob Guenzel] of the development plan [suggested by Sandi Smith]. [.pdf of original text of the DDA resolution].

The amendment was accepted as friendly.

Mouat characterized the resolution as a great first step. Mayor John Hieftje concurred with Mouat’s sentiments, but cautioned that the city council might take a couple of meetings to work through it.

Outcome: The DDA unanimously approved the resolution urging support of the city council resolution articulating the parcel-by-parcel plan.

Communications, Committee Reports

The board’s meeting included the usual range of reports from its standing committees and the downtown citizens advisory council. No one addressed the board during the two opportunities the board provides for public commentary.

Comm/Comm: Downtown Citizens Advisory Council

Ray Detter gave his report from the CAC, which typically meets each month on the Tuesday evening before the Wednesday DDA board meeting. Detter noted that Ward 1 councilmember Sabra Briere attended the meeting and had given an update on the first five meetings of the street outreach task force. Three downtown panhandlers had attended a recent meeting of the task force, said Detter. [See Chronicle coverage: "Ann Arbor Task Force Consults Panhandlers"] They confirmed that panhandling is not a problem of homelessness, rather a problem of substance abuse and mental illness. They’d also received a report from Susan Pollay, executive director of the DDA, Detter said.

The CAC has always supported area planning, Detter said. He alerted the audience that there would be a citizens participation meeting later that evening at the Ann Arbor District Library for a proposed hotel at the corner of Washington and Division, across from the former Ann Arbor News building. Detter said that the proposed project claimed to be a “by right” project that meets the A2D2 zoning standards, but Detter questioned whether it will meet the design guidelines that have yet to be approved by the city council.

On Monday, Jan. 10, the city council will conduct a work session on the design guidelines. Detter characterized the newest version of the guidelines as a good improvement over the last set and said they may need to be revised in light of what kinds of projects are proposed. The guidelines relate to what is acceptable with respect to what gets built on top of the underground parking structure on the city-owned Library Lot, as well as whatever project is proposed for the Kline’s Lot, a surface parking lot that’s also owned by the city.

Comm/Comm: Library Lot RFP Review Committee

John Splitt reported that the committee reviewing proposals for the top of the Library Lot underground parking structure has not met since the last DDA board meeting.

Comm/Comm: Bricks and Money

Roger Hewitt made short shrift of the latest monthly parking report, saying that the year-over-year comparison showed a 7% increase in revenue. The numbers reflected that the parking system is maintaining steady usage, he said – there is no significant falloff of usage. [.pdf of November 2010 DDA parking report].

John Splitt gave an update on the underground parking garage construction. Concrete pours of between 1,000 and 2,000 cubic yards at a time continue. About 99% of the mass excavation has been completed, he said.

The Fifth and Division streetscape improvement project has been shut down for the winter, he said.

Comm/Comm: Economic Development, Communications

The DDA’s newest committee – the economic development and communications committee – had met for the first time, Joan Lowenstein reported. They had reviewed economic development efforts locally, regionally and  statewide, she said. There is a lot of work being done in the area of economic development, she said, especially by Washtenaw County. The big picture vision, she said, is for the committee to act as the point agency for downtown.

They will be focusing on image, defining or branding what the downtown is and develop a marketing plan. They plan to include business encouragement and the creative recruitment of businesses downtown. The committee’s action steps will include: (1) establishing partnerships, (2) assembling research and information, and (3) establishing metrics to measure outcomes.

Lowenstein said the communications aspect of the committee would be considered next.

Comm/Comm: Partnerships

Reporting out from the partnerships committee, Sandi Smith gave an update on the energy-saving grant program – 32 applications had been received this year for the first phase of the program. The program has two phases – an energy audit phase and an implementation phase. The DDA’s grant program funds the audits and provides a 50% match for installation of energy-saving measures recommended in the audit, with a cap of $20,000 per installation. Smith noted that across from the Ann Arbo Farmer’s Market, MAVDevelopment is drilling 11 600-foot geothermal wells that will be used to heat and cool the Market Place building. She noted that the DDA is not matching the entire cost of the project, because it reached the $20,000 cap fairly quickly.

Comm/Comm: Transportation

Reporting out for the transportation committee, John Mouat indicated that the committee had not met. As a preview of the next topics the committee would be tackling, he said they would start working on transportation demand management.

Resolution Honoring Joan Lyke

Working her last board meeting before her retirement was Joan Lyke, management assistant at the DDA. Board member Leah Gunn read aloud the resolution honoring Lyke’s service, highlights of which included the fact that she’s served the DDA for nearly two decades, a stretch that covered nearly four dozen different DDA board members. Lyke was the sole staff member during the transition period between DDA director Reuben Bergman and Susan Pollay – a period when Gunn chaired the DDA board. In response to an email query from The Chronicle after the meeting, Gunn wrote about Lyke during that time: “She was my rock.”

Lyke delivered a few remarks of her own to the board, prefacing them by saying that the board is a living example of how government can work for the good of the people. She’d said that she’d learned a lot while working at the DDA. Highlights of what she’d learned:

• Nothing is simple.
• Parking isn’t free.
• If an idea is good, it will always resurface.
• Retreats are just extended board meetings.
• Criticism is ample.
• Compliments are few.

She concluded by saying that she looked forward to reading about the board’s future accomplishments.

Lyke’s post will be filled by Julie Uden, who’s been working with Lyke for the last month learning the details of the job. On Wednesday, one vignette from Uden’s day included greeting an Ann Arbor resident who appeared at DDA offices with a question about the new ePark machines. The resident was in luck, because Republic Parking manager Mark Lyons was in the building for the board meeting, and Uden was able to make introductions. [Republic Parking is under contract with the DDA to manage the city's parking.] The two went out to Fifth Avenue to have a look at a machine. The DDA is installing the devices in place of standard parking meters.

Present: Gary Boren, Newcombe Clark, Bob Guenzel, Roger Hewitt, John Hieftje, John Splitt, Sandi Smith, Leah Gunn, Joan Lowenstein, John Mouat.

Absent: Russ Collins, Keith Orr.

Next board meeting: Noon on Wednesday, Feb. 2, 2011, at the DDA offices, 150 S. Fifth Ave., Suite 301. [confirm date]

Sabra Briere (Ward 1) and Carsten Hohnke (Ward 5) confer during a brief break at the city council meeting. After the break, Hohnke withdrew his motion that would have asked the council to consider the Heritage Row project for a third time in total, and for the second time at their July 6 meeting. (Photos by the writer.)

Rejection of the district then set off a series of parliamentary procedures by the council. The actions were prompted by concern that without the protection afforded by the historic district, seven houses would be demolished through construction of an already-approved matter-of-right project (MOR), City Place.

So the council brought back for reconsideration a different project on the same site – Heritage Row, which the council had rejected at its previous meeting. A key feature of the Heritage Row project, which includes three new apartment buildings, is that it would also retain the seven houses.

The vote on the reconsideration of Heritage Row failed. That resulted in an attempt by Carsten Hohnke (Ward 5) to have the council reconsider the historic district, which the council had just rejected. Hohnke’s council colleagues weren’t interested in revisiting the issue.

So Hohnke then began the parliamentary procedure to reconsider the Heritage Row project – for the second time that evening and for the third time total. The move required another rule suspension – this one concerning the number of times a question could be considered.

After a brief recess, however – during which Hohnke was apparently persuaded that developer Alex de Parry would not actually follow through and build the City Place MOR project – Hohnke withdrew his motion. A comment from Ann Arbor resident Ethel Potts, who attended the council meeting and who has witnessed more than four decades of city politics, summarized the sentiments of many in the audience: “As weird goes, this was pretty weird.”

A moratorium on demolition, which covers the area considered by the historic district study committee, will remain in place through Aug. 6. The council meets on Aug. 5, after the primary elections on Aug. 3.

In other business, the city council approved a resolution opposing legislation recently enacted by the state of Arizona that requires local law enforcement officials to investigate a person’s immigration status, when there is a reasonable suspicion that the person is in the U.S. unlawfully.

The council transacted a range of other business and communications as well. Those issues are covered in Part 2 of the July 6 meeting report. Part 1 focuses on the Arizona immigration law and the historic district.

Immigration Status: Against Arizona Senate Bill 1070

Before the council was a resolution sponsored by Sabra Briere (Ward 1) and Sandi Smith (Ward 1) that expressed opposition to a recent law enacted in the state of Arizona that requires local law enforcement to investigate a person’s immigration status when there is a reasonable suspicion that the person is in the U.S. unlawfully. [draft of resolution] Briere had announced at the council’s previous meeting that she would bring a resolution like this forward.

When the council approved the evening’s agenda, Margie Teall (Ward 4) proposed moving the item up so that it could be considered immediately following the public commentary at the start of the meeting, to accommodate those who were attending the meeting just for that item. That agenda change was approved with dissent from Marcia Higgins (Ward 4). Higgins left the table during public commentary, and did not return until well after the vote on the immigration law had been taken.

One of the themes that emerged during the public comment period was that racial profiling already exists in the Ann Arbor community – which led the council to ask chief of police Barnett Jones to address the issue from the podium.

Councilmembers also stressed that the resolution had not used city staff resources, a theme that echoed sentiments expressed at a recent candidate forum held in Ward 1, when incumbent Sandi Smith and challenger Sumi Kailasapathy were asked if they felt it was appropriate for the city council to address national-level issues.

Immigration Status: Public Comment

Introducing herself as a recent graduate of Huron High School and a community organizer for a Washtenaw County worker center was Jasmine Franco. She described her own background, beginning with her parents’ arrival in the U.S. from Guatemala in the 1990s. Two years after that, she was born in Chicago. She lived in Ann Arbor for 10 years with her family until her mother was sent back to Guatemala. In 2008, she said, her Michigan ID expired. Despite her U.S. citizenship and her possession of a valid birth certificate, a Social Security number and a U.S. passport, she was denied the right to a Michigan ID. The reason, she had been told, was that several undocumented immigrants had used her home address for Michigan IDs.

Franco was then given a case number and an agent, who told her that to get any form of ID, he had to visit her home and see her documents in person, to validate her citizenship and residency. For over two years, Franco said, she tried to arrange a home visit, but the agent refused to return her calls. When she complained, she said, she was told that her agent had been laid off. She was assigned a new agent, who continued to ignore her requests. It was only after the intervention of Pastor Melanie Carey, a woman with whom Franco was living, that Franco said she was able to get her Michigan driver’s license.

The agent never met with her in her home to verify her citizenship or residency  – all it took was for Carey to tell the agent over the phone that Franco was a citizen living in her home. Two weeks later the agent delivered the ID into Carey’s hands, without Franco needing to be present. Franco contended that her experience was not unique. If Arizona-style legislation passes in Michigan, she warned, countless citizens will be denied their rights. The resolution before the city council, Franco said, sends a clear message to the rest of the country: We will not tolerate Arizona-style legislation. She urged support of the resolution.

Blaine Coleman began by addressing the council in Spanish, and then provided a translation: Remember that Arizona has been occupied since 1848 – like Palestine is occupied today. He said he was glad that city councils were condemning the government of Arizona for passing such a blatantly racist law that can only result in racial profiling against anyone who the government decides looks like they’re not a citizen. He asked the city council: How could they be so brave in condemning Arizona for that law it had enacted, and “enforce such silence” when it comes to racial profiling against Palestinians? How is it, Coleman asked, that it’s only for one night that the Ann Arbor city council stands against racism and only against Arizona, but never against Israel, or against the U.S. government for the murder of Iraqis and Afghans? Coleman then concluded his remarks by repeating the question five times: How much is an Arab’s life worth to you?

Mozhgan Savabiesfahani told the council it was hard for her to believe that they were against racism – she’s been coming to the council for five to six years to speak about racism in Israel, but the council had never acknowledged her existence. That, she concluded, is racist. She showed the council a flier she’d brought that presented research concluding that the U.S. bombing in Fallujah had a negative effect on infant mortality and increased cancer rates. Councilmembers had refused to accept the flier from her, she reported. “You want to tell me you’re not racist?” She concluded her remarks by saying, “Boycott Israel!”

Speaking on behalf of Michigan Peaceworks and its immigrant rights task force was Max Heirich. He began by framing the question as one of opportunity: What is the opportunity represented by the resolution? It’s relevant to Ann Arbor, he said, because 160 area families had been disrupted by Homeland Security actions – parents have been separated from children, children have been put in foster care, he said. Law enforcement actions are proceeding without search warrants, he said, similar to what would happen if Michigan were to enact laws being introduced in the legislature now, which are similar to laws already enacted in Arizona. Taking a stand in Ann Arbor could be a model for other cities, he said. He reminded the council that the U.S. is a nation of immigrants. Various immigrants have faced oppression at different points in the country’s history, he said. The resolution is an opportunity to do something positive, instead of simply saying, “Isn’t it too bad.”

Mary Anne Perrone began by addressing the council in Spanish, then translating her remarks: She came to speak to the mayor and the city council with a deep conviction, asking them to vote in favor of the resolution. She’s lived in Ann Arbor for over 20 years, she said, and is a member of the Interfaith Council for Peace and Justice, and also the Washtenaw Interfaith Coalition for Immigrant Rights. She said that although she is a U.S. citizen – the granddaughter of immigrants – if she were in Arizona and she had spoken in her adopted language of Spanish, that could form the basis of a suspicion that she is not here in the U.S. lawfully.

Law enforcement officers could then ask her to produce documents and to detain her. It’s important, Perrone said, that cities like Ann Arbor raise their voices as a conscience for the nation and to make clear that using intolerance and discrimination is not the way that we want our government to operate. In Ann Arbor, Perrone said, we care about art, we care about parks, we care about rivers, and we care about people’s human rights.

Deputy director of the American Civil Liberties Union of Michigan, Mary Bejian, appeared in order to give the ACLU’s official endorsement of the resolution. She emphasized that it’s not just that Arizona’s legislation – as well as the pending legislation in Michigan – gives the police the right to ask people to prove their lawful residence, but rather it actually requires them to do that. Law enforcement officers face penalties if they’re found to be negligent. The U.S. Department of Justice, Bejian reported, had filed suit this week against the state of Arizona regarding the legislation – the ACLU and a number of other organizations had already filed suit back in May.

Mary Bejian, deputy director of the American Civil Liberties Union of Michigan.

Bejian said they were confident that the law will be shown to be unconstitutional – the law invites and compels racial profiling. The notion of “reasonable suspicion,” she said, is a vague legal concept. What other possible criteria would law enforcement officers use, other than the color of one’s skin, whether someone speaks English with an accent or a foreign language? Supporters of the law are not able to offer any other criteria that would constitute reasonable suspicion, other than looking or sounding foreign, she said.

Bejian pointed out that the law enforcement community was not happy with the legislation, either. The Arizona Association of Chiefs of Police has gone on record against it. Locally, she said, law enforcement officials have said that local law enforcement should not be doing the job of federal immigration agents. For one thing, she said, they are not trained to do that job. There are also no local resources to do this kind of work, she said.

Vivianne Schnitzer told the council she’d lived for 10 years in Ann Arbor among the diverse population of residents. She said she considers Ann Arbor to be an enlightened city. The city’s humanity and solidarity are now being tested, she said. Tonight, she suggested, we could choose one path or the other, and it would have profound implications for our children and grandchildren. One day they will ask us: “What did you do that day?” We have to reject the politics of fear and chose the politics of reason, she said.

Laura Sanders introduced herself as an Ann Arbor resident, local therapist, and instructor at the University of Michigan School of Social Work. She told the council she was representing the Washtenaw Interfaith Coalition for Immigrant Rights. They’d documented over 160 cases of raids, detainments and deportations of immigrants, many of which included participation of local law enforcement in addition to Immigration and Customs Enforcement (ICE). Those cases showed that racial profiling is already playing a major role in traffic stops that are resulting in deportations of innocent and hard-working immigrants, she said.

There’s not any admission by officers, Sanders said, that the reason they’ve stopped people is they’re brown-skinned, or they speak with a thick accent, or that they’re wearing their hats to the side, or because they’re driving a car with a decal of a foreign flag. They’re then interrogated about their immigration status and arrested for offenses for which white people would simply be ticketed.

Laura Sanders spoke on behalf of the Washtenaw Interfaith Coalition for Immigrant Rights.

Sanders then ticked through a list of actual of traffic stop offenses for which immigrants have been arrested in the community: cracked windshield, rosary hanging off rear-view mirror, low air in tires, crooked license plate, malfunctioning tail light, failure to use blinker turning from private driveway onto street, expired license plate, driving on expired license, possessing expired license sitting in passenger seat, broken headlight, making a wrong turn, failing to change lanes when passing a car pulled over by the police, failing to wear a seat belt, making a fast stop. There’s already a racial-profiling problem, she contended. It’s important to take a proactive step against it, she said. She asked everyone attending in support of the resolution to stand, and an estimated 50 people rose from their seats.

Samantha Narawski introduced herself as a University of Michigan student working with a group called One Michigan, a statewide organization made up of undocumented and documented youth who were fighting for immigrant rights and the Dream Act. She explained how the Arizona legislation had affected a member of the Ann Arbor community – a co-founder of One Michigan, Mohammad Abdollahi. He’d lived in Arizona for a month, organized there, and participated in a sit-in.

Abdollahi came to Ann Arbor as a three-year-old from Iran, when his father was working on his doctorate at the University of Michigan. An attorney had failed to inform the family about a $20 fee change and that had resulted in the family being undocumented, Narawski explained. Abdollahi grew up volunteering at the Ozone House and cheering on the Huron High School River Rats. He didn’t know what it meant, she explained, until his friends started applying to colleges and he couldn’t because he didn’t have a Social Security number.

Abdollahi attended Washtenaw Community College and earned enough credits to transfer to Eastern Michigan University. At the admissions office at EMU, they told him he was the kind of student they wanted there. But a few minutes later, she continued, the admissions officer’s supervisor retracted the offer of admission, saying that they had missed the fact that he’d checked the box indicating he was not a citizen.

He searched out resources online, Narawski said, and headed to Arizona with three undocumented students to participate in a sit-in. They asked that the Dream Act be enacted, which would allow undocumented students to receive citizenship. She asked the council to stand with Abdollahi and oppose the Arizona legislation, as he had done. “Do it for Mohammad and the immigrant community here.”

Immigration Status: Council Deliberations

Sabra Briere (Ward 1), who drafted the resolution that was also sponsored by Sandi Smith (Ward 1), began by thanking Margie Teall (Ward 4) for moving the item forward on the agenda.

Briere ticked off various groups who had come to this county to escape religious persecution, to seek economic opportunity, or political freedom. Her own ancestors arrived before immigration was an issue – to leave the Old World behind and to find new opportunity. The men had fought in every war, including the American Revolution. The women had done what women always did – ran the farms, businesses, the home, sacrificing for freedom or just keeping their heads down. Each generation defines freedom for itself, she continued, but also fights to defend that freedom. In that spirit, seven years ago the council had passed a resolution protesting the erosion of civil liberties under the U.S. Patriot Act, Briere said. [Excerpted minutes from the July 7, 2003 Ann Arbor city council meeting.]

Stereotyping of the sort that is encouraged by the Arizona legislation, Briere said, is at its very heart against American principles. The U.S. attorney general had filed suit that day against the state of Arizona, Briere said, and a broad variety of academic organizations spoke against the Arizona bill immediately after it was passed. City councils and city governments “from Arizona to Minneapolis” have voted their opposition to the legislation. She asked her colleagues to support the attorney general’s position that immigration enforcement is properly the purview of the federal government, not the state. She asked the council to support the Obama administration to address the problems with the immigration law.

During public commentary on the subject, the speakers’ comments were met with audience applause, and the pattern continued after Briere’s remarks. Mayor John Hieftje admonished the audience that “we don’t have applause for a councilmember statement.”

“Now you say that!” quipped Sandi Smith (Ward 1), who was next to speak. She thanked Briere for doing “the heavy lifting” on the resolution. It had been simply reviewed briefly by the city attorney’s office, and she stressed that very few city resources had been used to accomplish the resolution. Why would Ann Arbor take on something like this? Smith’s answer: “This is what Ann Arbor does.” And the council would finish their entire agenda, Smith said, no matter how late they needed to stay.

Michigan as a state had become known as an unfriendly place, Smith cautioned. Passing Arizona-style legislation in Michigan would contribute further to that. The language of Arizona’s legislation – “without a warrant,” for example – was frightening to her, she said. She encouraged the council to support the resolution.

Margie Teall (Ward 4) echoed the sentiments of Smith and Briere, and stressed that although it might not appear that it had to do with Ann Arbor or its operation, it’s sometimes important to make a symbolic statement and to share that statement with other cities. In the past, she said, Ann Arbor had sometimes raised its voice as a beacon to other communities and the city can be proud of that.

In response to a constituent question she’d received that day, Teall explained that any councilmember can place a resolution on the agenda. She also stressed that no other business was being delayed or postponed or otherwise neglected, due to the vote on the immigration resolution.

Tony Derezinski (Ward 2) echoed the comments of Teall, noting that the council had a long agenda that night. But the council had spoken out on other issues like this, giving as an example a resolution that he’d sponsored recognizing a veterans group and a peace group who were working together on a water project in Iraq. Things like that deserve recognition and the council’s impetus behind it. If you look around at the make-up of the council, he said, you heard some curious names like “Derezinski,” “Rapundalo,” “Hohnke” and “Hieftje.” Those are names from other countries, Derezinski said. It’s an immigrant nation, and we’re all immigrants, he said. It’s a positive thing that new people are constantly coming into the country, he said: “They will save us, when our blood gets old and tired.”

Hieftje expressed his agreement with the resolution and thanked Smith and Briere for their work on it.

Stephen Rapundalo (Ward 2) indicated that he was greatly troubled by elements of the Arizona legislation – “they are vile at best,” he said. He said he abhorred the thought of immigrants being pulled aside because of the color of their skin or for other reasons. He noted that he was a landed immigrant himself and except for the color of his skin, he could be pulled over – he noted he had a foreign flag on the back of his car. [Rapundalo has dual Candadian-U.S. citizenship.] He said he wholeheartedly supports the idea that immigration is a federal matter – just as Briere had asked the council to support the U.S. attorney general’s position on that. However, for that reason, he said that he regrettably could not support the resolution.

Rapundalo said he would be consistent with his position on similar issues in the past – it’s not an issue for the Ann Arbor city council at the moment. When there is a piece of legislation that has a direct impact on local citizens, he said, he’d be more than happy to consider it then. He’d received many emails from supporters of the resolution, but also many messages asking why the city council was not focusing more on local issues. He allowed that his colleagues were correct in saying that they would finish the agenda that night, despite their consideration of the resolution. But he said that there were more pressing issues – roads and budgets, for example.

Responding to Rapundalo’s remarks, Hieftje noted that the council had passed resolutions previously concerning the Patriot Act and the war in Iraq. He contended that it was rare that the Ann Arbor city council took up such resolutions, and said he felt it did not take time away from other important business that came before the council. He disagreed with the idea that it was an action that was inappropriate for the Ann Arbor city council.

Responding to the remarks of Laura Sanders during public commentary that racial profiling was already happening in the Ann Arbor community, Hieftje said that Ann Arbor chief of police Barnett Jones and Washtenaw County sheriff Jerry Clayton would like to know about those issues.

Outcome: The resolution opposing the Arizona law on how local law enforcement officers are to handle possible immigration violations was approved, with dissent from Rapundalo. Marcia Higgins was not at the table when the vote was taken.

Immigration Status: Response from Police Chief

After the vote was taken, chief of police Barnett Jones was asked to the podium by Sabra Briere to respond to the issue concerning the number of people who had been arrested during ICE raids.

Carsten Hohnke (Ward 5) and Sabra Briere (Ward 1) talk with Ann Arbor chief of police Barnett Jones, right.

Jones indicated that he didn’t know where Laura Sanders had gotten her numbers from: “Her figures are her figures,” he said. He asked that he be forwarded any statistics that are relevant to the city of Ann Arbor. He said he thought that the bulk of Sanders’ figures came from outside the city. He indicated that he’d met with Sanders and her group and had worked with her. He described the relationship of the Ann Arbor police with the undocumented community as “wonderful.” There’s a council resolution that addresses how local law enforcement is supposed to handle situations like these.

From the council’s 2003 resolution cited earlier by Briere:

RESOLVED, That the Ann Arbor City Council, as a matter of public policy, directs the Ann Arbor Chief of Police, to the extent permitted by law, to:

1. Continue to limit local enforcement actions with respect to immigration matters to penal violations of federal immigration law (as opposed to administrative violations) except in cases where the Chief of Police determines there is a legitimate public safety concern and in such public safety instances, to report the situation to the City Council no later than 60 days after the incident.
2. Continue to refrain from covert surveillance of and/or collection and maintenance of information on individuals or groups based on their participation in activities protected by the First Amendment, such as political advocacy or the practice of a religion, without a particularized suspicion of unlawful activity.
3. Affirm the existing practice, as required by Michigan state law, of providing simultaneous notice of the execution of a state court search warrant to any resident of the City of Ann Arbor whose property is the subject of such a warrant, except in cases of anticipatory search warrants.
4. Report to the City Council any request made by federal authorities for the Ann Arbor Police Department to participate in any activity under the USA Patriot Act, to the extent the Chief of Police has knowledge of such request.
5. Refrain from participating in informational interviews conducted by federal authorities similar to those conducted by the Federal Bureau of Investigation (FBI) in early 2002 in Ann Arbor of individuals not suspected of criminal activity, unless the interviewee has specifically requested the presence of an AAPD official;
   RESOLVED, That the City Administrator be directed to seek semi-annually, by form letter, from federal authorities the following information on behalf of the residents of the City of Ann Arbor:
6. The names of all residents of the City of Ann Arbor who have been arrested or otherwise detained by federal authorities as a result of terrorism investigations since September 11, 2001; the location of each detainee; the circumstances that led to each detention; the charges, if any, lodges against each detainee; the name of counsel, if any, representing each detainee;
7. The number of search warrants that have been executed in the City of Ann Arbor without notice to the subject of the warrant pursuant to Section 213 of the USA PATRIOT Act;
8. The extent of electronic surveillance carried out in the City of Ann Arbor under powers granted in the USA PATRIOT Act;
9. The extent to which federal authorities are monitoring political meetings, religious gatherings or other activities protected by the First Amendment within the City of Ann Arbor;
10. The number of times education records have been obtained from public schools and institutions of higher learning in the City of Ann Arbor under Section 507 of the USA PATRIOT Act;
11. The number of times library records have been obtained from libraries in the City of Ann Arbor under Section 215 of the USA PATRIOT Act;
12. The number of times that records of the books purchased by store patrons have been obtained from bookstores in the City of Ann Arbor under Section 215 of the USA PATRIOT Act;

Jones said that he was appalled that Sanders’ presentation made it sound like the Ann Arbor police department is out looking for undocumented immigrants and that they’re using racial profiling to effect those arrests. “This is a professional law enforcement agency, with professional men and women, [...] who know what the rules are [...],” Jones said. He said that he figured there were some of those men and women in uniform who may have been watching the city council proceedings on television, who might have been a little upset by Sanders’ statements. [City council meetings are broadcast live on Community Television Network.]

He concluded by stressing that he felt that most of the stats Sanders had cited related to incidents outside of Ann Arbor and that he’d asked her to provide any specific information about problems inside the city – as she’d done in the past.

He concluded by saying, “And I will calm down now!”

Fourth/Fifth Avenue Historic District

Before the council for its second and final reading was a proposal to accept the recommendation of a study committee that had been established on Aug. 6 last year, to create a local historic district along Fourth and Fifth avenues south of William Street and north of Packard. Detailed background can be found in previous Chronicle coverage: “The Constitution of Historic Districts” and “S. Fifth Avenue: Historic District, Development.”

The proposed district was controversial for some who oppose the creation of any district at all in the general area, as well as for some neighbors living south of Packard Street, who objected to the way the proposed boundaries were drawn. Many residents living in the 500 blocks of Fourth and Fifth avenues, south of Packard just north of Madison, wanted to be included in a historic district as well.

Historic District: Public Hearing

Identifying himself as the only resident member of the historic district study committee was Tom Whitaker. He asked for the council’s support of the study committee’s recommendation to create a historic district. He said that state officials who had reviewed a preliminary version of the report had called it “exemplary.” The committee had adopted the recommendation to create the district unanimously, he said, just as they had recommended that the council have an additional area studied, which includes the block south of Packard Street, where many residents support the establishment of a historic district.

Whitaker said he didn’t agree with the attempts by some of those residents to “sabotage” the creation of a smaller district. The boundaries recommended by the report, he said, would withstand any of the “baseless” challenges that had been made. Rejecting the district wouldn’t be fair to the owners of individual properties that had previously been part of a citywide district that had been ruled legally invalid by the 2001 Draprop decision – they’d been waiting to have their properties reinstated. It also wouldn’t be fair, he said, to the property owners in the neighborhood who had seen three development proposals for the neighborhood in the last few years, all of which were counter to the city’s master planning and zoning, he contended.

A historic district would not mean the end of improvements in the area, Whitaker said, as the experience of other historic districts showed – neighborhoods stabilize and property values rise under historic designation, he said. Liberty Lofts was built in a historic district, he pointed out, and the new CVS on State Street is being built in a historic district. The Zingerman’s Deli expansion is likely to be approved in a historic district, he said. In addition, he continued, large numbers of smaller homeowner projects are routinely completed in historic districts with a high percentage requiring only staff approval. Those requiring approval from the historic district commission have an approval percentage better than 90%, he said. The older neighborhoods, as well as the historic neighborhoods, are what define Ann Arbor to visitors and what attract people to live here and to stay here. If the council chose not to support the historic district, then Whitaker asked that they explain what they’d done to help resolve the conflict. “None of you can afford to sit back any longer and watch this neighborhood being torn apart,” he warned.

Kristi Gilbert introduced herself as a member of the study committee and urged the council to vote for the district. She said that she would defer to Whitaker and others like him who are more skilled in making the arguments for a historic district. She noted that they are not just passionate about historic preservation, but are equally concerned about sustainability, a dense urban environment and economic vitality. All of these things can happen together, she said, and that had happened in Ann Arbor over the last 30 years with its 14 historic districts, many of which are in the downtown core.

Gilbert referred to the Michigan Historic Preservation Network conference recently, when mayor John Hieftje had bragged about the 14 historic districts and why they make Ann Arbor so beautiful. There’s some good modern architecture in Ann Arbor, she said, but the majority of it doesn’t help define the identity or brand of Ann Arbor.

Tom Luczak introduced himself as a resident of the proposed historic district and urged the council to support the recommendation in the study committee’s report. He allowed that it is council’s judgment call as to whether they value having the houses of the neighborhood preserved, but he noted that they are under tremendous development pressure. He contended that a number of people who are supportive of a district were not there that evening, but that they would be around in early August. [The primary election will be held on Aug. 3 – several councilmembers are running for reelection.]

Luczak reminded councilmembers that many of them had placed importance on process with respect to the city planning commission’s recommendation. So if they wanted to respect process, he contended, then they should support the recommendation of the committee. If the historic district is not approved, he asked, what would be his motivation not to sell his house to a developer? He called the argument that the boundaries are wrong a “red herring.” He said he supported the idea of expanding the district later, but asked the council not to “throw the baby out with the bath water.”

Claudius Vincenz, who lives south of Packard Street, an area not included in the study committee’s recommended district, showed the council a poster of Gottfried Maedel who used to live in Vincenz’s house. The German past of the block, he said, was not included in the study committee’s report. He said he agreed with Tony Derezinski (Ward 2), who had called the exercise a “self-fulfilling prophecy.”

However, Vincenz said, it would not have been a self-fulfilling prophecy if the committee had used their expertise to write a report that was consistent with the Secretary of the Interior guidelines, which it was not, he contended. The area of greatest concentration of historical value, he said, was actually south of the proposed area. He contended that the committee had suppressed evidence of many German founders of Ann Arbor who had lived south of the proposed area.

The most blatant omission, Vincenz said, was the last remaining residence of Raoul Wallenberg, who had stepped forward during World War II and saved thousands of Jews from the gas chambers. He called the resolution suggesting the council study the area south of Packard evidence that the committee knew something was not quite right, characterizing it as a way of saying, “We wash our hands in innocence.”

Ellen Thackery, who is the Michigan Historic Preservation Network field representative, asked the council to pass the resolution establishing a historic district. She reminded them that the neighborhood is in the city’s central area, and the central area plan recognizes that the neighborhood is integral to the city. One of the most effective means of preserving the character of the area, she said, is a historic district. Historic districts have been upheld at the U.S. Supreme Court level, she said, citing the Penn Central case.

Likely responding to a letter conveyed a few weeks ago to the city council by attorney Peter Webster, which argues that a local historic district creates a preservation easement, Thackery said that historic districts do not create an easement. Historic preservation easements, she said, are donated by a property owner and can be donated by any owner of a historic property. They can be donated on National Register properties, properties with state markers, or properties in local historic districts or properties without such a designation. Such easements are perpetual and run with the land. That contrasts with local historic districts, she said, which have a legal process for establishment, for their amendment, and their dissolution.

Piotr Michalowski told the council that he’d written to them on many occasions and did not want to repeat himself. Instead, he said, he wanted to remind the council what the purpose of a historic district is: to manage change. It doesn’t stop any change, but rather manages it, and that’s all they were asking for. He contended that the reason there is pressure for development in that neighborhood is because land is cheaper than it is downtown. It was not simply the recent developments that had been proposed in the neighborhood, like City Place and Heritage Row, but also other proposed developments that could come very soon, if a historic district is not established.

Scott Munzel introduced himself as legal counsel for the Fifth Avenue Limited Partnership, the owner of the Heritage Row project. He criticized the proposed district as both bad law and bad public policy. First, he said, the recommended district as described in the report does not meet the requirements described in the statutes, which require that the buildings be related by archeology, architecture, history, engineering, or culture. The “broad net” that is cast in the study report does not meet those criteria, he said.

Stephen Kunselman (Ward 3), left, chats with local attorney Scott Munzel during a break. Behind them, Stephen Rapundalo (Ward 2) talks with Sandi Smith (Ward 1).

By the study committee’s standard, Munzel said, every building that is near the downtown or the University of Michigan would qualify as historic and should be included in a historic district. Munzel cited the Draprop case, in which an Ann Arbor historic district had been invalidated, and said that based on that case, the proposed historic district could be invalidated on the same reasoning. Secondly, he said, the district may violate equal protection requirements in that it treats similarly situated landowners differently.

Along Jefferson Street to the east are examples of buildings that were excluded from the district, and Munzel noted that building south of Packard Street had been excluded. There is no rational basis he could see, on reading the report, for why those areas were excluded. He noted that the council had expressed concern through its earlier resolution on Arizona’s immigration law about violation of the U.S. Constitution, and he suggested that the historic district might violate the equal protection provisions of the Constitution.

Munzel also contended that establishing a historic district would amount to bad public policy. The role of the urban core is changing, he said. Environmental, social, and economic forces are pointing to the need for increased density. The area of the proposed district is surrounded on the north and west by the commercial core, on the east by the university and on the south by university and industrial uses, so it may be suitable for redevelopment proposals under the control of the city council. A historic district would put the decision on proposals, which could otherwise meet city goals, in the hands of the city’s historic district commission. It amounted to an abdication of council’s ability to control public policy. He reminded the council that everyone is free to preserve their own houses, without a historic district.

Much later in the public hearing, Thomas Partridge, like Munzel, also drew a connection to the discussion about the Arizona legislation on immigration. Partridge noted that the council had gone from talking about constitutional rights and human rights issues to talking about the selfish and restrictive attitudes of property owners. If the historic district were established, he asked, what will that mean for the immigrants coming to Ann Arbor seeking places to live? He concluded by saying there needs to be a compromise.

Jane Belanger introduced herself as the owner of two properties on South Fifth Avenue. She was one of the signers of a protest petition that was submitted to the city around 2 p.m. that day. She also told the council that she owned property in the Kerrytown area and lived in the Old West Side. She thus had some experience as an owner and investor in historic districts. She said she didn’t agree that her property values increased due to their historic designation – but rather due to the proximity to the university and to the downtown area. The properties are expensive to maintain, she said.

Belanger said the district had been proposed in order to block a specific development in the neighborhood. She said that people should take care of their houses, whether they are in a historic neighborhood or not, and that a historic neighborhood made it more difficult. She said she’d had positive encounters with the historic district commission for work she’d wanted to undertake, but that the process had taken longer than it would have otherwise.

Brad Mikus told the council that he thought the houses were old but not necessarily significant. He said it was bad public policy to use historic districts to stop development. But he also indicated that he thought the City Place matter-of-right development is a “turd.” No one likes it, he said, so whatever it takes to stop it is potentially a good idea.

Brad Mikus appealed to his smart phone to quote from the city's central area plan during the public hearing on the historic district.

Looking at the central area plan, Mikus said that the repeated goal and objective in the document is to “preserve” various aspects of the neighborhoods. From that he concluded that the zoning didn’t really match the master plan. He cited a passage from the Calthorpe report that seemed to indicate that removal of historic districts could facilitate new zoning. Running out of time, Mikus quickly concluded by saying he was in favor of establishing a historic district.

Betsy de Parry, who is Alex de Parry’s wife and part of the Heritage Row development team, reminded the council that the Heritage Row project had been rejected at the last council meeting. That project, she said, would have preserved seven houses on South Fifth Avenue. They were interested in preserving the houses, she said, but a historic district was not the way to do that. The study committee was formed hastily, she said, in order to stop the City Place matter-of-right project, which met existing zoning.

She contended that the council resolution establishing the committee contained an error when it claimed that the area included the most intact 19th century streetscape in the city – the 400 block of South Fifth Avenue. That block is actually interrupted by two parking lots and a large playground created by the demolition of early houses, she said. She pointed out that many of the owners of houses outside the recommended district want to be included in a district if one is established. But many of the owners of properties inside the proposed district are opposed to being included in the district, she said, which is demonstrated by the petitions that had been submitted that day. The creation of a district, she concluded, would be for the wrong reasons.

Ellen Ramsburgh, who is a historic district commissioner, told the council that she applauded the committee’s work and understood the conflicting views about the southern boundary. She suggested that the council appoint a study committee to study the expansion. She reminded the council that historic districts are a tool that can be used to manage development and to preserve neighborhoods. A good example of a historic district that works is the Old West Side historic district, she said. The city’s historic district commission, she said, performs its function well. The commission approves about 90% of the proposals that are presented to it. She said that projects are improved by going through the historic district commission review.

Susan Wineberg introduced herself as a member of the historic district study committee. She said she’s lived in the Old Fourth Ward since 1983, when a historic district was established there, and that she’d only seen improvements. It had resulted in the creation of a neighborhood group and a sense of identity for the neighborhood. She said that 95% of the neighborhood is rental, but the renters benefit from having the neighborhood group advocate for everything from parking permits to street cleaning to tree planting.

Seated are three members of the historic district study committee (left to right): Susan Wineberg, Kristi Gilbert, Patrick McCauley.

Wineberg also sought to dispel a misconception that historic districts regulate paint colors or issues inside of houses. A historic district does not regulate paint colors and deals only with the exterior of the houses, she said. She gave the example of subdivisions that have various rules about what can be done to houses, which is something that people like – it provides a sense of predictability and stability, she said. She allowed that she did not know if the increase in property values in the Old Fourth Ward had been a function of the properties’ inclusion in a historic district or if it reflected a general rise in property values near the university. She also pointed out that one of the benefits to property owners in historic districts is the tax credits that are available – she’d taken advantage of them and had saved a lot of money, she said.

Ethel Potts told the council they’d heard a lot about the strong desire to honor the history of Ann Arbor and the excellence of architecture and workmanship by establishing a historic district. Less talked about, she said, are the financial and economic benefits of establishing a historic district. The Old West Side had started as “scruffy,” she said, and had now become “charming.”

Christine Crockett told the council that a historic district would give property owners an incentive to maintain their property, something they already had demonstrated even without a historic district. It would encourage property owners to maintain the beauty of Ann Arbor, she said. When pictures are shown of Ann Arbor, you never see pictures of the newer buildings. It’s the older buildings that are chosen for pictures depicting Ann Arbor, she said. Responding to Jane Belanger’s comments to the effect that houses in a historic district are expensive to maintain, Crockett said that maintaining any house is expensive. In a historic district, however, there are tax credits available to offset some of the expense.

John Floyd, a Republican candidate for Ward 5 city council in November, began by applauding what Alex de Parry had proposed to do with the Heritage Row project, which would preserve the seven historic houses. He’d toured the site twice, he said – once with a member of the study committee. What de Parry proposed to do with the site was, Floyd said, “fabulous” and should be acknowledged. He also said it should be acknowledged that de Parry had the right to develop something on the backside of the site.

Floyd said he also supports the establishment of a historic district. If there were not some concern about the houses being destroyed, he said, the topic of a historic district would not come up. He characterized the area where the district was proposed as part of the “charm zone” of Ann Arbor – the ring of pre-WWII houses around downtown. As part of the charm zone, Floyd said, the houses are part of the signature element of Ann Arbor’s built environment.

Leafy neighborhood blocks surrounding the downtown core, Floyd contended, give Ann Arbor a unique character that helps to partly offset the disadvantages of climate and geography in the competition to attract and retain talented people. He said he also advocates appointing a committee to explore expanding the district southward of Packard Street and over to Jefferson and perhaps even Hamilton Place.

Rita Mitchell asked the council to vote to support the district and immediately approve a study committee for an expanded district – south of Packard and eastward as well. The money spent on rehabbing houses, she said, would immediately create jobs, and the increased value of the properties would also increase the tax base.

Richard Jacobson criticized the study committee report for neglecting to include notable residents who had lived in the area south of Packard Street. Among the notables were Henry Otto, who’d led the Otto band, which had been the first band to play the UM fight song, “Hail to the Victors.” Bruno St. James had owned a dry goods shop and was a partner in Goodyear & St. James, on South Main. He’d served as an alderman from 1906-1910, Jacobson said. George Walker was the owner of Walker & Co., the most successful carriage shop in Ann Arbor, Jacobson told the council.

Anne Eisen, who lives in the proposed district, asked the council to approved the district – it would get the city about half way to the goal. How much she would continue to invest in her house, she said, depended in part on whether the city council voted to extend the protection of a historic district to the neighborhood.

Ray Detter stated that there should be no question that the houses in the proposed district were worthy of historic district designation. The committee had approached its work, he said, with honesty, hard work, and transparency. The city staff had provided assurance that there was a legal right to establish the district. As far as the boundaries were concerned, Detter said, in his experience boundaries of historic districts were always arbitrary. A historic district for the neighborhood would be consistent with the city’s master planning, he said. He rejected the policy position of the Ann Arbor-Ypsilanti Regional Chamber of Commerce to expand the downtown area to the surrounding neighborhoods.

Alex de Parry, the developer who had proposed the Heritage Row and the City Place projects, said he wanted to go on the record as not supporting the establishment of a historic district – it was being proposed for all the wrong reasons, he said. It did not meet the Secretary of Interior guidelines, he said, and the committee’s report contained many mistakes. He called it “an abuse of the historic district process.” Potential tax credits are not a rationale for creating a district, he said. Responding to a remark by Ray Detter that boundaries of historic districts are arbitrary, de Parry said he found the idea “rather strange.”

Beverly Strassmann introduced herself as president of the Germantown Neighborhood Association. She said that the residents north and south of Packard Street wanted the historic district to extend all the way to Madison Street. The boundaries that had been proposed, she said, are “arbitrary and capricious” and denied many of the residents equal protection under the law. The houses left out of the district, she contended, would be subject to even greater development pressures. Those property owners, she said, have every right to the same tax credits for historic preservation and renovation as the residents north of Packard.

Strassmann contended that the consultant who had advised the study committee had not adequately advised the committee about their obligations under the law. Strassmann quoted from the Secretary of the Interior guidelines: “When selecting boundaries for a historic district, include the area that contains the highest concentration of intact resources.” The most intact block, Strassmann said, was the 500 block of South Fifth Street between Packard and Madison. She told the council that establishing a historic district would put the city in legal jeopardy. She urged the council to table the proposal and to convene an entirely new study committee.

Graham Miles introduced himself as the owner of several properties in the 500 blocks of Fourth and Fifth avenues south of Packard. He said he’d like to see those houses included in a historic district.

Susan Whitaker thanked Carsten Hohnke (Ward 5) and Marcia Higgins (Ward 4) for sponsoring the resolution that established the historic district study committee. She noted that it had been the city council that had set the boundaries for the study area. She said that the neighborhood supported development when it was done right, citing Zaragon Place 2 as an example of high-density development done in an area suitable for that [at the southeast corner of William and Thompson]. She alluded to the support that Margie Teall (Ward 4) had shown for her own ward’s Lower Burns Park neighborhood by leading an effort to downzone part of the area to protect single-family houses.

Susan Whitaker spoke in favor of establishing a historic district.

[Teall is campaigning partly on that rezoning. From The Chronicle's coverage of a recent Ward 4 candidate forum: "Two years ago, she said, she had worked with her colleague from Ward 4, Marcia Higgins, to rezone part of Lower Burns Park to prevent more single-family residences from being broken up into multiple rental units."]

The area proposed for a historic district, Whitaker said, provides diverse housing options for people ranging from older couples, to young singles, to college students. She called it a model neighborhood for new urbanism and livability. She said the study report shows that the area is a “precious commodity.”

Patrick McCauley, who chaired the historic district study committee, said he’d prepared a long list of reasons for establishing the district and how they’d followed all the rules. Despite what some people were saying, he said, the study committee “did not kill anybody, we are not an Al-Qaeda plot.” He said he wanted to talk about why he still lived in Ann Arbor, given that he’d been “trying to get out of here for a long time.” He described himself as a housepainter, whose wife is a managing editor who works in Plymouth. They’d decided to stay in town after graduating from college, he said. Why? Because Ann Arbor is different. He said he kept checking out other places to live, but he kept coming back because it’s different – it’s not Royal Oak. Ann Arbor doesn’t believe in development at all costs, he said.

Marianne Zorza introduced herself as resident and owner of a house south of Packard Street that would be excluded from the proposed historic district. She said she wanted to tell the story of a family of historic preservationists who had saved six houses on the block. The matriarch of the family had been able to buy a house on the block. Her children and grandchildren had then been able to buy houses around that house, when there’d been a trend to tear down houses and replace them with modern apartment buildings. She said that she hoped the city council would honor the family’s early preservation efforts by taking steps to preserve the block south of Packard.

Zorza said that the report improperly draws the boundary line. She said she was not a politician and didn’t know how to make it work so that the cohesive neighborhood becomes one historic district – that’s what they’re trying to achieve, she said. She urged the council to work towards that end.

At the subsequent public hearing – on the establishment of an industrial development district for a portion of Green Road – Brad Mikus stepped again to the microphone to point out that there was not a lot of notetaking by councilmembers during the historic district public hearing. What had been the point of the public hearing? When mayor John Hieftje admonished him to address the topic of the current public hearing, Mikus said he’d made the point he wanted to make.

Historic District: City Council Deliberations

Carsten Hohnke (Ward 5) led off council discussion by saying that when he and Marcia Higgins (Ward 4) had brought forth the resolution to form a study committee, it was because there was a recognition that the area should be considered for historic preservation. The committee’s report, he said, confirmed that they were right about the formation of the study committee, which he said the majority of the council had supported.

Hohnke contended that the final report demonstrated that the resources in the precisely defined area of study unambiguously exceeded the criteria for listing in the national register – in terms of their age, integrity and significance of the resources. He said that 90% of the resources are contributing and 75% have a high level of integrity. It’s pretty clear, he said, that on the historic merits it’s reasonable to consider the area for preservation.

Hohnke said that Tony Derezinski (Ward 2) had appropriately brought forth at the previous meeting of the council – when the district had received its first reading – comments from a study committee member [Rebecca Lopez Kriss] to the effect that the study committee had considered only the historic merits of a district. It’s up to the city council to take a broader view, Hohnke said.

Hohnke allowed that there were many stories about people who might have had difficulty undertaking some modification to a structure in a historic district. However, he said that was different from the question of the establishment of a district. He noted that 90% of proposed projects in historic districts are approved by Ann Arbor’s historic district commission.

He pointed to the economic vitality that historic districts can provide to a community and to the uniqueness that they contribute to Ann Arbor.

Hohnke thanked the members of the study committee for their hard work, which they had done rigorously, fairly and openly. They’d produced a report of high quality, he said. Based on the association with the history of Ann Arbor, the association with important civic leaders, and benefit to the economic vitality of the city, he said he supported the establishment of the district. The balance between development and preservation would be well-served by the district, he concluded.

Derezinski said that the debate could be had by people of good intentions on both sides. He suggested that a simple way of looking at it is this: Do we look to the past, or do we look to the future? Are we looking forward or backwards? He called it a real moment of truth for the city involving two significant issues – the historic district and the Heritage Row development, which the council had rejected at its last meeting.

Derezinski said that while the legalities of establishing the historic district had been raised by some, he wanted to ask whether it was wise to establish a district. As he had done at the council’s first reading, Derezinski again quoted from a letter that Rebecca Lopez Kriss had written to council as a member of the historic district study committee. The committee had not been asked to analyze the economic effects, the feasibility, how it would fit into long-term planning on land use, or the impact on revenue compared to alternate uses.

Derezinski then quoted a passage from a blog posting by Lou Glazer, cofounder of Michigan Future Inc., which was written in the wake of the city council’s decision to reject the Heritage Row project [From "Why Ann Arbor Won't Be an Economic Engine"]:

But the notion that Ann Arbor is best positioned to drive Michigan’s transition to a knowledge-based economy is widely held across the state. Unfortunately Ann Arbor’s politics make it unlikely to happen. Yes, Ann Arbor is home to the University of Michigan – a world class research university – which is a terrific asset. But to leverage the asset there has to be a large pool of talent that both will attract knowledge-based enterprises and commercialize the ideas coming out of the university. That talent pool won’t concentrate in Ann Arbor as long as it’s politics are anti-growth, particularly anti-density.

The City Council just turned down another development designed primarily for young professionals. It’s a regular occurrence. Is it easier in Ann Arbor to do higher density development today than five years ago? Yes, but it still is real hard.

The result: Ann Arbor has about one third the young professional households as Madison. A chief reason, Madison offers the kind of high density, mixed use, walkable neighborhoods that Millennials are looking for, Ann Arbor doesn’t. [...] So Madison is an engine for the Wisconsin economy, Ann Arbor isn’t for Michigan.  Unless Ann Arbor becomes much more development friendly and much more responsive to the changing demands for housing and density don’t count on Ann Arbor being an engine for the Michigan economy.

Derezinski then unfurled a large city map showing those parcels that were either university-owned land or in one of the 14 already-existing historic districts in the city.

City councilmember Tony Derezinski (Ward 2) unfurls a map of Ann Arbor that shows land that's either owned by the University of Michigan or in an existing historic district.

He then read a long passage from a letter that Jan Barney Newman had written to AnnArbor.com on the city council’s rejection of Heritage Row. “I don’t understand the logic of these decisions,” Newman wrote.

Derezinski began the wrap-up of his comments by quoting Alfred, Lord Tennyson’s “Locksley Hall”:  “Let the great world spin for ever down the ringing grooves of change.” He called on his colleagues not to “calcify” their vision of the city in the past. He concluded with a pun on the “Cross of Gold” speech given by William Jennings Bryan at the 1896 Democratic National Convention in Chicago on July 8, 1896: “Do not crucify us on a cross of old.”

In his remarks, Christopher Taylor (Ward 3) rejected the idea that the decision on the historic district was a referendum on preservation versus progress. For him, he said the questions were: (i) Does the proposed district meet the National Register Bulletin 15 standards? (ii) If it meets the standards, is the district in the long-term interest of the city?

In 50 years, Taylor said, they would be “the dead hand of the past” and so the decision had better be right.

By way of background, the criteria for consideration from the National Register Bulletin 15 subsequently cited by Taylor are these:

A. That are associated with events that have made a significant contribution to the broad patterns of our history; or

B. That are associated with the lives of persons significant in our past; or

C. That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction;

Taylor said that according to the study committee’s report, collectively the resources in the district are historically significant according to criterion (A) and several meet the criteria (B) and (C) at the local level.

In his view, Taylor said, collectively meeting the criterion (A) would be a sufficient condition for establishing a historic district, while those criteria of only limited satisfaction – (B) and (C) – would not be a sufficient condition to establish a district. He then set about to evaluate criterion (A).

The study committee’s report concludes that the district meets criterion (A) because it encompasses a residential neighborhood that was established and has survived since Ann Arbor’s earliest days, Taylor said. It provides an excellent example of a neighborhood established in the latter half of the 19th century and evolved through the first half of the 20th century.

However, on reading Bulletin 15, in the section that explains criterion (A), Taylor did not feel the criterion was met. From the bulletin:

The event or trends, however, must clearly be important within the associated context: settlement, in the case of the town, or development of a maritime economy, in the case of the port city. Moreover, the property must have an important association with the event or historic trends, and it must retain historic integrity. [...] Mere association with historic events or trends is not enough, in and of itself, to qualify under Criterion A: the property’s specific association must be considered important as well.

Based on the study committee’s report, the proposed associative event is general, not specific. Survival, said Taylor, is not an important event or trend. He contrasted it with the report of the Old Fourth Ward study committee, which clearly and consistently related the Old Fourth Ward area to Ann Arbor’s founding. For the Fourth/Fifth Avenue proposed district, that kind of specific founding is absent, Taylor contended. The report itself acknowledges that the primary area of German settlement was in an area west of Main Street in what is now the Old West Side (OWS) and clearly referenced in the OWS study report.

Taylor then looked at criterion (B), which the committee report contends is met because the proposed district contains several homes of several Ann Arbor citizens who were locally important to the development of the city. Quoting from Bulletin 15 again, Taylor expressed doubt that this was sufficient to meet the criterion:

The criterion is generally restricted to those properties that illustrate (rather than commemorate) a person’s important achievements. [...] The persons associated with the property must be individually significant within a historic context. A property is not eligible if its only justification for significance is that it was owned or used by a person who is a member of an identifiable profession, class, or social or ethnic group. It must be shown that the person gained importance within his or her profession or group.

As he read the report, Taylor said, the people who lived in the houses were of standing in the community, but with the possible exception of mayors Hiram Beakes, Samuel Beakes and William Walz, they do not appear to have been important within their profession.

For criterion (C), Taylor again quoted from Bulletin 15:

A structure is eligible as a specimen of its type or period of construction if it is an important example (within its context) of building practices of a particular time in history.

As he read the report, Taylor said, there are several resources that exemplify to varying degrees a type or method of construction, but he did not believe that any of them are “important” examples.

Based on his understanding of the Bulletin 15 criteria and his reading of the report, Taylor said, he did not think the criteria were met. Even if they were met, he said, it would be necessary to establish it was in the long-term economic interest of the city. His vote against the district, Taylor said, should not be seen as a lack of concern for neighborhood cohesion or a sense of place.

Sandi Smith (Ward 1) thanked the members of the committee for their work – the detailed house-by-house cataloging of the district. She said she enjoyed reading the report. It struck her that at the time, 60-year-old houses had been torn down and moved to build the houses that now existed there. For Smith, the protest petition signed by 22 owners of the 53 properties in the district – 41% of them – was significant. She noted that a protest petition for a planned unit development (PUD) required only a 20% threshold. [That threshold had been met for the Heritage Row project, which had the effect of requiring an 8-vote super-majority for approval. Protest petitions have no formal role in the process for establishing historic districts.]

Smith indicated she was still wrestling with the issue, and was looking forward to hearing the rest of her colleagues’ comments.

Stephen Rapundalo (Ward 2) echoed the sentiments of Taylor and Derezinski. He said his interpretation was that the standards were not met collectively. Rapundalo also said he agreed with Smith’s observation that opposition to the district within the proposed area, based on the protest petition, was significant.

Addressing the contentions that some speakers had made about the state agency considering the report to be a model,  Rapundalo said he had not seen anything that addressed the substance as opposed to the form of the report. He also noted that the central area plan calls for integrative architecture and design guidelines to ensure consistency of scale and character of neighborhoods. Nowhere does it point to historic districts as the sole tool for achieving that. He concluded that he would be opposing the district.

Hohnke acknowledged that Taylor had argued forcefully in terms of the district persisting functionally in perpetuity. But he said he didn’t think that was accurate. In exactly the same way that they were now going through a process to form a district, said Hohnke, at some future point the community could elect to undergo the prescribed process to dissolve the district, if it no longer served the interests of the community.

Alluding to Derezinski’s remarks, Hohnke said “I dare not refute Tennyson, so I will refute Mr. Glazer!” He said that the idea that politics in Ann Arbor are anti-growth is simply not accurate. He noted that dozens of projects over the last 10 years have been approved – Hohnke said he would not bore his colleagues with the list, which he has ticked through on a couple of recent occasions.

Hohnke then stated that the idea that Ann Arbor is not an economic engine in the way that Madison is – as Glazer had contended – “is just bunk.”

Sabra Briere (Ward 1) said that back in 2005, before she had been elected to the city council, she’d stood at the podium asking the council for their support for a historic district. She’d spent a lot of hours working on the study committee and then waiting for the council to act. She therefore knew that a lot of work went into the process.

Briere said it’s difficult to imagine what it would take to answer the question about the economic effect of a district on future economic growth. However, she said she believes that Ann Arbor’s historic districts create an opportunity for the stabilization of neighborhoods. The establishment of the Old Fourth Ward and the Old West Side historic districts had both resulted in redevelopment, she said.

We want to keep the charm of our neighborhoods, she said, and we don’t think about how to convince people that our houses are interesting. They’re the fabric of what makes Ann Arbor Ann Arbor.

Derezinski responded to Hohnke’s contention that a historic district could be dissolved by a prescribed process by asking if any of the already-established districts in Ann Arbor had been abolished. What is the momentum in a situation like this? He pointed out that many people were already calling for the district’s expansion.

Margie Teall (Ward 4) said it was a difficult decision and that she was troubled by the large number of people who had signed the protest petition. She said she appreciated Smith’s speculation about how many houses the current mayor has lived in might be seen as historic. She noted that the Heritage Row development that had been rejected would have preserved the houses. She concluded that she would not be supporting the district.

Mayor John Hieftje said he could see how the vote was going to go and he didn’t want to make a long statement. He said that the city might want to look at the issue that Smith had raised about the contrast between a PUD protest petition that could raise the threshold to an 8-vote super-majority and the historic district protest petition, which had no particular legal standing.

Hieftje also said that he’d been talking to a lot of people lately and had concluded that there is a very clear generational divide in the city on the issue of preservation. He said he’d been taking a lot of flak for some votes he’d made in the past. A lot of people under 40 have said that they were very upset that he hadn’t voted for certain projects, he reported. To hear that they felt they weren’t being given a chance was interesting for him to hear, he said. There would be a change eventually, he said, because there would be a new generation that takes over.

Hieftje concluded by saying he agreed with Hohnke’s statements and he’d come to the meeting prepared to support the district and that’s what he intended to do.

Stephen Kunselman (Ward 3) said he would support the district not based on a heavy analysis, but rather on the fact that it was the right thing to do. All 14 historic districts lend character to the community, Kunselman said. We can listen to what other people say about our community and talk about economics, but he said that if you look outside of the inner ring of the city, there are a lot of empty apartments and houses. In his neighborhood, Kunselman said, three houses had been torn down and a fourth would soon meet the same fate.

Stephen Kunselman (Ward 3) and Sabra Briere (Ward 1).

Kunselman said that one of the issues the community continued to deal with is the policy set by the first president of the University of Michigan, Henry Tappan: Students would live in the community and the university would not build housing for them. That’s what we’re living with today, he said.

[Note: For a detailed analysis of University of Michigan student housing and its impact on the community, a good place to start is Dale Winling's 2007 master's thesis, which he discussed on his blog, Urban Oasis.]

North Quad, set to open this fall, is a step in the right direction, Kunselman said, but for the last few decades we haven’t seen construction of many new dormitories. That contributed to the conversion of near downtown neighborhoods to rental housing. He said that as a townie who’d grown up in Ann Arbor, he was dismayed by the change that has taken place in the neighborhoods closer to downtown. Without a historic district, we’d see the houses torn down, lots accumulated and “cash boxes” constructed, with the loss of the city’s neighborhood character. He said he supported a historic district and asked his colleagues to consider changing their votes.

Smith asked Kevin McDonald of the city attorney’s office if there was any mechanism for residents of a historic district to opt out. His one-word answer: No. So it’s all or nothing? she asked. McDonald’s answer: Yes!

Smith asked if historic districts precluded construction behind houses or additions. Jill Thacher, who is a city planner specializing in historic preservation, told Smith that additions were possible in a historic district, and that the historic district commission routinely approved them.

Briere then asked about the ease of adding another story. That’s not usually encouraged, said Thacher.

Outcome: The vote on the historic district was 4-6. Voting against it were: Stephen Rapundalo, Margie Teall, Sandi Smith, Tony Derezinski, Marcia Higgins, and Christopher Taylor. Voting for it were: Sabra Briere, Carsten Hohnke, John Hieftje, and Stephen Kunselman.

Reconsideration: Heritage Row

After the historic district vote, Stephen Rapundalo called his colleagues’ attention to the fact that there was an approved site plan for the City Place matter-of-right project that could still be built if there were no historic district. So he floated the idea of reconsidering the Heritage Row vote from the council’s last meeting.

Two parts of the council’s Rule 12 eventually came into play in the ensuing parliamentary maneuvers. The first part concerns who may bring a motion for reconsideration. The second part concerns how many times a question can be considered.

From the council rules [emphasis added]:

Rule 12 – Consideration of Questions When a question has been taken, it shall be in order for any member voting with the prevailing side to move a reconsideration thereof at the same or the next regular meeting; but, no question shall a second time be reconsidered.

Rapundalo had voted for the Heritage Row project, which had been defeated – he was thus not on the prevailing side, and was prohibited by Rule 12 from bringing a motion to reconsider Heritage Row. Rule 19 provides a mechanism for overriding other rules.

RULE 19 – How Rules May Be Altered Council-adopted rules may be altered or amended by a vote of the members-elect, if notice of the changes proposed to be made shall have been given the Council at a preceding regular meeting, and a written copy of the proposed changes distributed to all members of the Council.

Council-adopted rules may be suspended for the time being by a vote of two-thirds of the members present.

Rapundalo said he’d prefer not to go through the suspension of the rules, if someone from the prevailing side wanted to bring the motion. But neither Briere, nor Kunselman, nor Hohnke were so inclined.

So Rapundalo’s first step was to bring a motion to suspend Rule 12 so that he could bring a motion for reconsideration. With Mike Anglin’s absence, the 2/3 requirement translated to 7 votes required for the suspension of rules. The vote on that motion was 7-3, with Briere, Kunselman and Hohnke voting against it.

Rapundalo then brought the motion to reconsider the Heritage Row vote. That vote was 7-3 with Briere, Kunselman and Hohnke voting against it.

On the Heritage Row project itself deliberations were brief. Smith said that preserving the seven houses was a real benefit. That had been a reason for her to consider the historic district. Hohnke indicated that he was still processing the rule change. The historic district would have done a very good job of preserving the houses, so if the Heritage Row project were now approved, he would move to reconsider the historic district.

Teall said she appreciated Rapundalo’s “winging it” and understood Hohnke’s point that a historic district would provide the benefit of preserving the seven houses. But she returned to the fact that many of the property owners in the neighborhood didn’t want to be included in the historic district.

Rapundalo addressed Hohnke’s contention that a historic district was a better preservation tool by saying that in absolute terms that might be correct, but the situation was that there was a matter-of-right project with a green light for construction if the Heritage Row project were not reconsidered.

Hieftje said that based on conversation with one of the neighborhood leaders, that person didn’t think the matter-of-right City Place project would ever be built. But Hieftje said he didn’t agree with that. And for that reason the best course of action – given that the historic district had been turned down – would be to approve Heritage Row. He didn’t want to take a chance and wanted to support Heritage Row because it did preserve the houses.

Briere said that she appreciated the mayor’s comments, but noted that the council had a choice about whether  to support a historic district. She also contended that Alex de Parry and his wife had said boldly and strongly at the podium that they had no intention of building the matter-of-right development. She said that nothing had changed with respect to the Heritage Row project in the last two weeks. The only thing that had changed, she said, was that the council had chosen not to support a historic district.

Smith said that she’d seen some heads shaking over among the developer’s team in response to Briere’s remarks. She asked the de Parrys to address the council to clarify. Alex de Parry said that the language regarding the public easement for Heritage Row had been prepared – the lack of an easement for the public plaza in the actual supplemental regulations had been noted as a deficiency by Kunselman at the council’s previous meeting.

De Parry also said that they would be replacing all the street trees in need of replacement along Fifth Avenue between William and Packard on both sides of the street. He also corrected the number of bedrooms that people had talked about at the council’s previous meeting – it’s 154 bedrooms, not 163, he said.

Betsy de Parry also clarified that they had never indicated that they were not going to build the matter-of-right project, as Briere had contended. What they’d wanted to do was to rehabilitate the houses – that was their “wish and deepest desire,” she said.

Hieftje said it wasn’t just the matter-of-right project that concerned him. He said he figured, if the matter-of-right project were not built, there would be other proposals that would not result in the preservation of the houses.

Kunselman, however – who was perceived as the possible swing vote – said that if there was to be no historic district, he didn’t understand the need to preserve the homes. Moving them closer to the road as proposed would put them out of character and out of context, he said. He suggested that perhaps townhomes would be in order – 3-4 stories with garages.

Outcome: The vote on the reconsideration of Heritage Row was 7-3, with Briere, Kunselman and Hohnke voting against it. It thus failed because it did not achieve the required 8-vote super-majority.

Hohnke then attempted to bring back the historic district for reconsideration, but could not, because he had not been on the prevailing side. He’d incorrectly understood the previous suspension of Rule 12 to apply for the rest of the meeting. He thus needed to first bring a motion to suspend Rule 12. That motion failed 6-4 – it needed 2/3 of 10 present members, or 7 votes, to succeed. Teall, Higgins, Derezinski and Rapundalo voted against it.

Then Hohnke moved to suspend the part of Rule 12 that concerns how many times a question can be considered, so that the Heritage Row project could be considered for a third time total and for the second time that night. That motion succeeded, with only Kunselman and Briere voting against it.

Hieftje then called for a brief recess, and during the break, Hohnke and Briere conferred. In a telephone interview with The Chronicle the day after the meeting, Briere said she shared with Hohnke her belief that de Parry would not build the matter-of-right City Place project.

Returning from the break, Hohnke apologized to his colleagues, citing confusion about the suspension of the rules and what he contended had been conflicting advice from the city attorney. He then withdrew his motion to reconsider Heritage Row.

Pressed during a break to assess whether she considered the proceedings weird, Ethel Potts, who has witnessed several decades of Ann Arbor politics allowed, “As weird goes, this was pretty weird.”

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

Absent: Mike Anglin.

Next council meeting: Monday, July 19, 2010 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave.

Developer Alex de Parry addresses the Ann Arbor city council in support of the Heritage Row project at council's June 21 meeting. (Photos by the writer.)

The number of houses to be renovated – called the “Seven Sisters” by some in the community who support their preservation – matched the number of votes the project received Monday night from the 11-member city council.

While that is a majority, the seven votes in favor of Heritage Row did not meet the eight-vote minimum that was required. The super-majority requirement came as a result of a protest petition that was successfully filed on the same day as the council’s last meeting, June 7. On that occasion, the council first considered this newest iteration of the project, but postponed it until their June 21 meeting.

The project rejected by the council on Monday in its 7-4 vote was a planned unit development (PUD), which would have required the city to amend its zoning. That leaves in play an already-approved earlier project at the same location, called City Place. City Place was authorized by the council last year as a “matter of right” (MOR) project – because it was judged to meet all applicable codes and zoning regulations.

The City Place (MOR) would demolish the seven houses and replace them with two apartment buildings separated by a parking lot. It’s a project that would be almost certainly denied by the city’s historic district commission – if a historic district were established in the area, as a study committee has recently recommended. The council is expected to make its final vote on the historic district at its July 6 meeting.

But the council gave its initial consideration to establishment of that historic district on Monday night. It’s more customary for councilmembers to vote for proposals on their first reading – to advance a proposal to a public hearing – even if they ultimately plan to vote against it. But Monday’s meeting saw three councilmembers already voting against establishing the district.

The council’s meeting also started off with the theme of historic preservation, as the city’s historic district commission presented its annual preservation awards.

In other business, the council gave a short extension to developer Village Green, which has an option-to-purchase agreement with the city for the city-owned parcel at First and Washington streets. The time for the extension is to be used to work with the city planning staff to put together milestones that need to be met.

Heritage Row

Heritage Row is a residential project proposed for South Fifth Avenue that would renovate seven houses and construct three new 3.5-story apartment buildings behind those houses, with an underground parking garage. In total, there would be a maximum 82 apartments with no more than 163 bedrooms. The public hearings on both the site plan and the rezoning were continued from the council’s previous meeting on June 7. [Chronicle coverage of that meeting: "Heritage Row Likely to Need Super-Majority"]

Heritage Row: Public Hearings

Speaking during public commentary general time, Shirley Zempel began with a simple, “Hello, Mayor, hello council!” She told them she was back before them because once again the council was being asked to approve a construction project that was too big for the neighborhood. Alluding to the long timeline the project has traced in various iterations, Zempel said she wished the issue could be finally settled. She said she’d visited with developer Alex de Parry and he’d showed them some things he was going to change. But the problem, to her, is the increased density – traffic is going to be “messed up,” she said. She is skeptical, she said, that the tenants of the project would really ride the bus or use Zipcars – the tenants of the new project would have cars, she said.

Thomas Partridge noted that he’d stated his position on similar resolutions many times in the past – all rezoning requests need to require a significant amount of the housing to be affordable. The proposal before the council that night, Partridge said, failed to meet that standard and should be taken back to the drawing board.

Tom Luczak referred to Partridge’s speaking turn during general public commentary reserved time, when Partridge had measured time based on the start of the Obama administration. Luczak said it was possible to measure time based on the start of the Heritage Row project. “Let’s throw the dirt on this thing,” Luczak said. He told the council he wanted to make a few points in defense of zoning. He took a walk from the south of downtown through the downtown to the area north of downtown, he said, and it was striking that there was a clear difference as he walked through these areas.

Zoning, Luczak said, reflected the collective value judgment of how we want to live. The city council is the final adjudicator of a PUD proposal like Heritage Row, which entails a rezoning. It’s only justified, he said, if the value outweighs the detriment to the surrounding neighbors. Density could be achieved on any number of other parcels around town, he said – 40 paces away in the actual downtown, not just near the downtown. For example, he said, Zaragon Place 2 is a project he supports, be cause it’s located in the downtown, where it belongs. [Zaragon Place 2 is a 14-story apartment building proposed for the southeast corner of Thompson and William streets, and was recently approved by the city planning commission.]

Patricia Lesko introduced herself as a candidate for mayor. She said she wanted to talk to the council about zoning. She said she had been riding her bike home and that a neighbor had flagged her down who lived in the area of the location where the Near North development is being proposed. The neighbors had not so much agreed to support that development, she contended, as given up on believing local government would enforce its own zoning. They had given up on the people they looked to to enforce what should be clear-cut zoning rules. Projects like Near North, The Moravian, and Heritage Row, she said, were similar in that they reflected zoning by exception – we were intruding into those neighborhoods and it was upsetting, she said.

The neighbor Lesko said she’d spoken with asked, Why buy a house in a neighborhood that abuts downtown, if we can’t rely on local government to enforce zoning? If we want to have greater density, Lesko continued, we need to have an open and frank discussion about dense development in “fringe neighborhoods.” She said that the discussion should not be about NIMBYs, which would make it personal, but rather about zoning. Planned unit developments are zoning by exception and by favor, she concluded, and we need to think very carefully about that.

Kyle Mazurek, vice president of government affairs for the Ann Arbor Ypsilanti Area Regional Chamber of Commerce, spoke in support of Heritage Row. Among the reasons he cited were that it supported goals of the chamber: higher density development, support for development of multiple modes of transit, increasing the supply of workforce housing, increasing the supply of parking with 60 underground spaces. He cited the plaza that would be available for public art. He also cited the provision of critical tax revenue to the city. The project, he concluded, was consistent with the goals of the general community.

Gwen Nystuen announced that she was there for the neighborhoods. She said that everyone who lived close to the center of the city had pressure on them for development of that land. The Heritage Row area was already zoned R4C, which was already dense – why was a PUD necessary? she asked. It was a way to get around zoning, she said. In the interest of maintaining the neighborhoods, she urged the council to reject the project.

Bob Dascola told the council that his family had been in business for 70 years in Ann Arbor. He watched urban sprawl take over. He used to live on Fifth Avenue, he said, and had friends who lived there. They always spoke of living downtown, he said. He described Heritage Row as a creative project that would support more people living downtown.

Rita Mitchell said that she was pleased to see the historic district commission awards. She noted that the recent A2D2 rezoning of downtown did not include designation for higher zoning for the site of Heritage Row. She felt that it was important to have the information about the proposed historic district in the area before having the discussion about the Heritage Row PUD. She asked the council to defer action on it, or else deny it. Once a historic building is gone, she cautioned, it is lost forever.

Ellen Ramsburgh, who had presented the historic district commission awards at the start of the council’s meeting, said that the standards for approving a PUD were high and that the project had not met them. She also contended that the intended preservation of the seven houses as part of the project would not comply with the Secretary of the Interior standards for historic preservation – due to the moving of foundations and the removal of additions. The planned buildings in back of the seven houses, she said, would be a detriment.

Ellen Ramsburgh, who serves on the city's historic district commission, spoke against the Heritage Row project.

Joe Ferrario urged the council to support the project. He noted that over the next 30 years, the population of Ann Arbor was projected to grow by only around 500 people, but was projected to add 18,000 jobs. Mindful of all the traffic that US-23 fed into Ann Arbor, he cautioned that sometime in the future we’d be talking about a proposed Heritage Row parking structure. Students already live in the neighborhood, he pointed out. Nothing deteriorates the character of a neighborhood more, he cautioned, than crumbling infrastructure – potholes that aren’t filled, trash that’s not collected, and snow that’s not plowed. He said he hoped the council would support the project and others like it, because it is the only way that Ann Arbor can become a real city.

Alex de Parry began by thanking the full range of people involved in the project – planning staff, city councilmembers and neighbors – for their input on it. He noted that he’d lived in Ann Arbor since the early 1970s and he’d seen the area improve since that time when he’d begun buying property there. During many meetings with neighbors, other citizens, planning staff and the city planning commission, he said, six main goals had emerged:

• Keep existing houses – the Heritage Row project does that, he said.
• Keep density close to the same density allowed under code, the density allowed for the matter-of-right project, which had 144 bedrooms in 24 6-bedroom units. Heritage Row, de Parry  said, is a mix of efficiencies, 1-bedroom units, 2-bedroom units, 3-bedroom units, plus one 5-bedroom unit that’s already present in an existing house. The unit count is 79, he said, but the bedroom count is 154, or 10 more than what the matter-of-right project had. Fourteen of those units, he said, were designated for affordable housing.
• Have adequate parking and keep it underground – the project has 60 underground parking spaces, which represents a 40% increase over the requirement of R4C requirement of 36 spaces. By putting the parking underground, he said, 53% open space would be achieved, including a public plaza.
• The new buildings should be background buildings behind the houses.

When it was her turn to take the podium, Betsy de Parry, wife of Alex de Parry, picked up on the list of goals where her husband had left off:

• Keep the height of the new buildings in scale with existing buildings – across the street, the church stands 60 feet tall, and Tom Whitaker’s house stands 44 feet 3 inches tall, she noted. At 39.625 feet, Heritage Row was shorter than both of those buildings and therefore consistent with the existing scale.
• Keep total massing consistent with what would be allowable under existing zoning – R4C would allow a total of 96,000 square feet, she said, whereas the PUD proposal would occupy only 75,882 square feet in both the new buildings and the existing houses.

Betsy de Parry finished off a list of points that Alex de Parry had started during his own public commentary segment, then made some more of her own.

She summarized the city’s central area plan by saying that Heritage Row is consistent with its stated goals – it’s consistent with the scale, height, and character of the neighborhood; it protects and enhances the existing houses and streetscape; and expands the supply of housing near downtown. The future land use map, she said, specifically designates the area for higher density. The reason Heritage Row exceeds the density allowable by code is because it includes affordable housing units, she said. The planning staff had verified that the project is consistent with the city’s planning documents, she said.

What Heritage Row does, essentially, is change what’s behind the houses, which are parking lots – and “there’s nothing sacred about parking lots,” she concluded.

Scott Betzoldt of Midwestern Consulting, civil engineer for the project, described it as a challenging project from a civil engineering point of view – challenges associated with providing modern utilities to seven existing houses. But he characterized the project as now conceived as something that was typical of the Ann Arbor feel that people have come to know and enjoy. Among the benefits were the preservation of the seven houses and provision of underground parking. Currently, he said, there were seven driveways and curbcuts along with seven different parking arrangements on gravel lots and the like. The existing spaces would be moved underground along with 30 additional spaces, he said, for a total of 62 spaces. Associated with the underground parking, he said, was an increase in the amount of usable open space – 53% of the area. Environmental benefits to the project include taking in stormwater from offsite as well as management of stormwater onsite – there currently is no stormwater management.

David Birchler, a city planning consultant with Birchler Arroyo Associates, addressed the project in the context of various city plans and policies – the central area plan, the downtown residential task force report and various provisions of the PUD ordinance. Many of the goals of the central area plan designed to affect density and affordability, he said, are furthered by Heritage Row: the development of new architecture that complements the scale and character of the existing neighborhood, to protect and maintain the diversity of housing options, to expand the supply of housing to meet a variety of lifestyles and incomes, to increase the availability of low-income rentals, to facilitate private initiatives to increase rental opportunities, and to improve the appearance of buildings and grounds to enhance the appearance of the neighborhood.

The downtown residential task force, Birchler said, had studied an area that includes the Heritage Row site – the area located within a 1/4 mile of the Downtown Development Authority boundary. The goal spelled out in the report, he said, was 1,000 new units of housing near the downtown. Heritage Row contributes to the goal in a way that is consistent with the task force recommendations, he concluded. With respect to the PUD regulations, the Heritage Row project encourages innovation in land use and design, achieves economy and efficiency in the use of land, encourages usable open space, provides adequate housing options suitable to the demands of Ann Arbor and expands the supply of affordable housing. Heritage Row provides opportunities suitable for those people who would choose a less automobile-oriented lifestyle, he said. The project would help cultivate a new model for in-town residential projects that’s sensitive to the quality that Ann Arbor deserves, the affordability it needs and the commitment to historic preservation that it demands.

Bradley Moore is the architect for the project. He described Heritage Row as an infill project that preserves the existing streetscape, while permitting construction of three new apartment buildings behind the existing houses. The new buildings are designed to be background buildings, and to be consistent with the scale of the other buildings in the area. The new buildings were not taller, from the ground to the top of the roof, of existing houses on the site, not taller than other houses on Fifth Avenue, not as tall as the Washtenaw Building less than a block away, not as tall as the public library also less than a block away, and not as tall as some of the houses found on Hamilton Place.

Architect for the Heritage Row project, Bradley Moore, shows councilmembers how the public plaza is configured.

The footprint of the proposed new north building is only 5,200 square feet, compared with 22,000 of the existing house at 415 S. Fifth, Bradley stated. The other two new buildings have footprints of 3,200 and 3,000 respectively, a total of 11,400 for new construction, plus a combined footprint of 13,100 for existing buildings. The new buildings don’t loom over the neighborhood, he said. The materials had been chosen in a way to respect the aesthetic of the existing neighborhood. The architecture of the new buildings has been designed so as not to compete with the existing surrounding architecture, he said, and to blend into the background. They would be constructed to comply with EPA Energy Star standards, which means that they’ll be 20-30% more efficient than a standard building.

The shading studies that had been done, Moore explained, showed that no significant shadows would be cast on buildings to the south, west, or east of the site, and that the existing building to the north of the site would be only modestly shadowed and only for part of the year. Moore said that the project would not shade its neighbors more than Tom Whitaker’s home shaded Tom Luzcak’s house next door.

John Dziurman introduced himself as a historic preservation architect by trade, certified as a historic architect by the state and the federal government. He said he’d served on the historic district commission of Rochester Hills, Mich. since 1987. His role in the Heritage Row project, he explained, was in connection with the preservation of the seven houses and the streetscape, and he’d evaluated the entire proposal with respect to the Secretary of the Interior standards. He stated that the project was consistent with the historic preservation theme in the city’s central area plan.

The seven houses would be restored in accordance with the historic standards for the period of historical significance as determined by the historic district study committee, which was 1838-1941. That would include the removal of some rear additions, Dziurman said. Five of the seven houses would be moved forward, he explained, in order to facilitate construction of the underground parking garage and to comply with the 19-foot setback. He allowed that moving a historic resource is discouraged, but noted that the standards allow it if the structure is primarily of historical significance due to its architectural value, or its association with a historic person or event. Buildings are allowed to be moved, he said, if doing so will preserve the building. After restoration, he said, the seven homes would be repainted with historically correct colors. The elimination of onsite surface parking, through construction of the underground parking garage, he said, was also consistent with historic restoration standards.

Dziurman also spoke at the site plan public hearing on Heritage Row. He noted that he’d served for 20 years on the historic district commission of Rochester Hills and told the council that he’d seen many cases where they’d actually lost their resources. In Rochester Hills, the council would turn down historic preservation in favor of development. One strategy he used, he said, was to allow development but to require preservation of historic buildings. He then said he was not sure if he should say it, but added that building underground parking is very, very expensive, as is preserving seven historic houses.

It’s not a big money-maker for anyone, Dziurman said. So there has to be a little give-and-take by the community. Any one of the houses would cost at least $100,000 to restore, or probably more. If you multiply that by seven houses, and look at the cost per space of building underground parking spaces, he said, you could see how the restoration of the seven houses was a good deal for everybody. Otherwise, he feared that the historic resources would be lost. In Rochester Hills, he’d seen that happen, he said.

Bob Snyder, introduced himself as representing the South University Neighborhood Association. He characterized the situation as a “stalemate” that was not a win-win for anyone. He described the seven houses as having lost all vestige of their architectural integrity. With or without Heritage Row, he said, the seven houses have, for the last two-thirds of their lives, been “savaged and pillaged” all in the name of student housing. Both de Parry and the Germantown neighbors, he said, were being ill-served by the lack of coherence in the administration of the city’s zoning laws. Whichever side wins, he said, it will be a hollow victory.

What needs to happen, Snyder said, is for people to lay down arms and make something good happen that might not be perfect. Snyder appealed to the notion of the Pareto optimality, which is an economic state when no one can be made better off by making someone else worse off. It would take eight votes to approve it, or five [sic] to shoot it down, he said. He suggested that the councilmembers should make sure they’d taken a walking tour of the “crime scene” before making their decision. He concluded that he was neither for or against Heritage Row, but encouraged the council to act as a well-prepared jury before “sticking it to either side.”

Scott Munzel introduced himself as legal counsel for the Fifth Avenue Limited Partnership, the owner of the Heritage Row project. He noted that a PUD is a rezoning, and therefore a “legislative act.” There is, therefore, no higher standard for PUD approval. Also under state law, a PUD is separate from all the others and any decision on a PUD would not set a precedent for any future proposals. Munzel pointed out how the planning staff report details how the project meets the eight criteria outlined in the PUD ordinance. The first criteria is the beneficial effect. Among the effects listed are innovation in land use and variety in design, efficient land use, and expansion of affordable housing inventory. Heritage Row met the standard by innovatively unlocking the hidden area of these unusually large lots, he said, in a way that conformed with the central area plan and the downtown residential task force recommendations. Increased urban density, he said, was an environmental imperative.

Heritage Row is “doubly green” because it increases the energy efficiency of the existing houses, and provides new construction that was in virtue of its location environmentally sound – cutting vehicle miles traveled and allowing residents to walk to work, Munzel said. It also provides affordable and moderately-priced units which would ultimately help downtown succeed. A second PUD standard is whether the project could be achieved under a different zoning class. Other zoning classes, he said, are too rigid to allow this project’s design. A third PUD standard is conformance with the city’s master plan, which has been confirmed by the city’s planning staff, Munzel said. A fourth PUD standard is to eliminate disturbance of historical features. Munzel stated that the project advances the historical preservation goals of the city – it’s “historic preservation plus,” he said. Heritage Row, Munzel concluded, does meet the standard. The concerns of the neighbors, he said, boil down to the neighbors not liking change. It takes courage to face our future challenges, he said, but he thought that city residents had the courage to face them.

David Peters introduced himself as an architect and planner who has worked and lived in the community for 50 years. He said he supported Heritage Row. The renovation of the seven houses would enhance and improve the value of the current neighborhood, he said. He said he’d walked the site and driven by the site. The existing rooflines and structures of the seven houses would minimize the view of the proposed new buildings behind the existing houses. He urged the council to agree with the planning commission and to approve the project.

Peter Webster, an attorney with Dickinson Wright, described the Heritage Row proposal as an alternative to the matter-of-right site plan that has already been approved by the city council, and would remain if the PUD is not approved. The main characteristic of the PUD proposal is the preservation of the seven existing houses, he said. He commented on the compliance of the proposal with the city’s planning documents and the downtown residential task force report. The goal, he said, is to increase the amount and the density of housing – that is achieved by Heritage Row, he said, but in a balanced way.

Peter Webster, an attorney with Dickinson Wright and legal counsel for Heritage Row, spoke in support of the project.

It increases the amount of allowed density only slightly above that which is allowed by the matter-of-right project, Webster noted. The project also overcomes the challenges inherent in the location of the site, he said, noting the underground parking, plus the lack of any increased burden to the infrastructure. The tie-ins for water and sewer plus the stormwater management were significant upgrades to the infrastructure, he said. Two items in the downtown residential task force report highlighted by Webster as challenges were (i) zoning as a barrier to innovative site plans; and (ii) the lack of open space. Heritage Row, he said, attempted to meet the first challenge by asking for a rezoning, and met the second by providing for additional open space.

Anne Eisen spoke about zoning and in support of long-term planning. The question is whether to rezone half a block on Fifth Street, she said. The area is separated from downtown by an existing historic district along William Street, she said, and the current zoning of R4C had been in place for 50 years.

The city’s long-term planning documents have recommended maintaining preservation of the scale and character of the neighborhood, Eisen said. The R4C zoning had not been modified to accommodate that recommendation, she said. When the historic designation of houses in the area was lost [in the Draprop court case, which disallowed the creation of a catchall historic district of various individual, unrelated properties], Eisen said, residents tried but failed to restore the houses’ historic designation. The new A2D2 rezoning, she said, recognized the appeal of the historic neighborhoods in making Ann Arbor special and attractive. The neighborhood had spent three years under siege from those want to “mow down the neighborhood” to build inappropriate structures.

Eisen also spoke during the public hearing on the site plan for Heritage Row. She said she’d been involved in the negotiations with Alex de Parry, and said that it had come a really long way since the original City Place proposal. She appreciated very much that he’d respected the request that the houses be preserved and agreed herself that there were additions that had been put on the houses that should be removed. She said she was not sure that some of the additions were structurally sound. She felt that the possibility should be respected that the historic district could be established. As for the proposed new buildings, she said that an honest height comparison needed to be made between the height of those buildings with long flat roofs versus houses with peaked roofs.

Al McWilliams told the council he’d lived within a few blocks of the neighborhood for 10 years and supported the project. He said it was not an age issue – he employs 10 professionals downtown from 19-45 years old, all of whom need places to live, he said. He had lived in the neighborhood for 10 years and was tired of paying $1,000 a month for a “wall-to-wall barf pit” – he told the council he’d let them figure out what that meant.

Alluding to previous speakers who’d noted the exact height of his house, Tom Whitaker began by quipping that there must have been a lot of people over at his house with ladders. One thing about his house, he said, however tall it is, it’s not 100 feet long, and that’s the difference. In January 2009, as the City Place iteration of the PUD had moved its way through the city’s planning process, a member of the city planning commission had sent a letter to the city council, Whitaker said. He wanted to highlight some of its points.

Noting that the site in question is zoned R4C and therefore creates specific limits on density, the letter goes on to say that the central area plan could not be clearer on the point of the need to protect, preserve, and enhance the character of the neighborhoods. It was not a question of preserving historic homes, but rather one of making sure that infill development is consistent with maintaining scale and existing density.

The goal of PUD zoning, the letter said, was not to allow for a dramatic percentage increase in density in exchange for other benefits. The letter refers to a “bargain” made with residents over the course of the years-long planning process connected to rezoning – there would be increased density in the core that would help protect the integrity of near-downtown residential neighborhoods. If that end of the bargain was not maintained, the letter warned, the fallout could jeopardize future consideration of increased density anywhere near established neighborhoods.

Whitaker reminded the council that the council had rejected the City Place PUD on a 10-0 vote and contended that Heritage Row is no improvement. City Place had 90 units, 164 bedrooms and 97 parking spaces. It had 14 affordable units plus 38 more affordable units at a higher rental rate, plus geothermal HVAC. Heritage Row, on the other hand, has 82 units with 163 bedrooms, 60 parking spaces, and 14 affordable units, but no geothermal system. There’s been no compromise, he concluded, and that’s why he is still opposed to the project.

Ray Detter asked the council to reject the project. Although he is the president of the Downtown Citizens Advisory Council, he said he was speaking only for himself, because the project was a situation outside the downtown area. Detter said that his position is that if a PUD is opposed by a clear majority of residents in the neighborhood, then it should not be forced upon people. He also noted that he is not opposed to projects inside the downtown that increase density, like Zaragon Place 2. Referring to the citations of the downtown residential task force report, which many who had already spoken in support of Heritage Row had cited, Detter noted that the report had not advocated “ripping out” sections of the area near downtown. He’d attended every one of the meetings of the task force, he said. Detter also asked that the council establish a historic district for the area.

During a recess called so that Stephen Kunselman (Ward 3) could review the site plan for the matter-of-right City Place project, Kunselman got a visit from Ray Detter, right.

Detter also spoke during the public hearing on the site plan for Heritage Row. He noted that he lives in a house zoned R4C abutting a D1-zoned area. Even D1, he said, does not allow development without a 30-foot setback next to R4C. And then at the 30-foot height, D1 buildings need to step back further, he said.

The Heritage Row project, he noted, allows for only 13-15 feet of a setback and then goes straight up to 39 feet. Detter noted that he’d attended all the meetings of the R4C task force that is currently studying the R4C zoning code – he contended that those who’ve attended the meetings are in favor of keeping things the way they are, to the point of opposing the combination of parcels, as the Heritage Row project does. He allowed that Heritage Row is better than the previous proposals.

Following Detter at the mic during the site plan hearing was Alex de Parry, who told Detter, who was seated behind the podium, that he’d also attended the R4C task force meetings. He told Detter he saw the density question somewhat differently. As de Parry was not facing the podium, Detter admonished him that he needed to speak into the microphone. Continuing, this time speaking into the mic, de Parry observed that allowable density in R4C zoning is greater than what people think. On Hamilton Place there were small lots with large houses – it is extremely dense. The density on the Heritage Row site, he said, was allowed to be 144 bedrooms under R4C zoning. The Heritage Row PUD asked for 154 bedrooms. Of the 79 units, 14 were affordable units. If the affordable unit were subtracted out, the proposed density is would be less than what’s allowed by the existing R4C zoning.

Bradley Moore also addressed the council during the site plan hearing in order to respond to some of Detter’s comments. Moore noted that he had served on the citizens advisory committee on the A2D2 rezoning project for the zoning overlay committee. He said that Detter was correct about the need for setback in D1 areas, but that it was motivated by the fact that in D1 it is possible to do a whole host of other things – it’s for the core of downtown. In D1 zoning, you’re looking at buildings in excess of 150 feet, so it is an entirely different situation that motivates the need for setbacks. The reduced distance in setback to 15 feet, he said, was appropriate to a residential-residential interface and to a three-story building as opposed to a 150-foot-tall building. He also adduced the real-world example of the Washtenaw Building on William Street, which was much longer than the three proposed new buildings, yet did not destroy the character of Hamilton Place.

Beverly Strassmann, who is president of the Germantown Neighborhood Association, said that the bottom line is that Heritage Row will “wreck” the 400 block of South Fifth Avenue in the same way that the omission of the 500 block of South Fifth Avenue from the proposed historic district will wreck that block. Instead of wrecking both those blocks, she asked the council to reject Heritage Row and to add the intact historic 500 block of South Fifth Avenue to the recommended historic district. Strassmann indicated that she felt like the project would be acceptable if the new buildings had one story knocked off of them – as they were currently designed, they could not hide behind the houses.

Lou Glorie, who is contesting Carsten Hohnke’s Ward 5 city council seat in the Democratic primary, told the council she hoped that they would reject the project. She said the benefits don’t outweigh the detriments, and it would set a precedent that is damaging. She also said that the decision should not be made in advance of the decision on the establishment of a historic district.

Heritage Row: Council Deliberations

Tony Derezinski (Ward 2) led off deliberations on Heritage Row with a suggestion of an amendment to the development agreement to make clear that if the PUD request were granted, the matter-of-right project that had been previously approved could not be built. The amendment, as read aloud by assistant city attorney Kevin McDonald, stated that the supplemental regulations would apply to the property, “including any previously approved development for the property.”

Outcome: The amendment ruling out the matter-of-right project on approval of the PUD was unanimously passed.

Sabra Briere (Ward 1) then led off a discussion of the public plaza area. She wanted to know how visible the area would be and how accessible to the public it would be. Bradley Moore, the architect for the project, used the poster of the site plan to indicate how it was situated – there would be no gate, he said, but it would likely be differentiated through use of different colored pavers. Moore indicated that he thought it would be accessible to the public and no one would be asked to leave unless they presented themselves as a nuisance.

Kevin McDonald, assistant city attorney, was asked to weigh in to clarify legal aspects at various points during deliberations on the Heritage Row project.

Stephen Kunselman (Ward 3) followed up on the public plaza issue by comparing the project with Ashley Mews – that project actually has a public easement, he said. Would Heritage Row have a public easement for the plaza? Developer Alex de Parry indicated that it would be accessible to the public and that if it were not already in the supplemental regulations, it could be added.

Kevin McDonald, assistant city attorney, indicated that he was not aware of anything in the supplemental regulations that addressed a public easement. Wendy Rampson, head of planning for the city, indicated that the planning commission was presented with an accessible amenity, but not a public amenity.

Carsten Hohnke (Ward 5) confirmed with Rampson that the public plaza was a non-trivial, important part of the open space, that was included in the claimed benefits of the project. He noted that it was a benefit to the residents, but not the public. De Parry responded by saying that it was his intent to have a public plaza with public art. If the supplemental regulations needed to be fine-tuned, he said, that’s fine: “Whatever I gotta do, we’ll do it.”

Hohnke said it felt like déjà vu all over again. He said he appreciated the effort on the part of the developer. A place of agreement Hohnke identified was that the city should tread lightly when rezoning a central part of a neighborhood. One-off exceptions, he said, should provide significant benefits, noting that the historic district study committee had indicated that the houses were historic resources. He noted that for the previous PUD, City Place, the staff report had warned that it would set a precedent that is attractive to targeting R4C zoned neighborhoods for development. The same things that were true of the previous report are also true of the current proposal, Hohnke said. The number of bedrooms had dropped from 164 to 163, he said, and the setbacks for the current project were smaller. For the previous project, Hohnke said, the staff recommendation against it and the council’s 10-0 vote against it showed that the benefits offered were not sufficient.

Hohnke contended that they were still left with a “benefit gap.” The number of parking spaces had dropped from 97 to 60; the affordable housing units offered in the previous project had been 52, as compared to 14 in the current project; the geothermal heating and cooling system had dropped to Energy Star buildings. The project offered reduced benefits with the same density, said Hohnke. The big difference, he allowed, was that the project no longer sought to demolish seven houses – that covered some but not all of the benefit gap.

Hohnke said he was surprised at how often density is quoted as a benefit. Most people are supportive of downtown density, he allowed, but by community consensus and by the city’s planning documents, Heritage Row is not a part of the downtown, Hohnke said. As you walk through the downtown into the residential neighborhoods, he said, it was clear that there’s a boundary, Hohnke said, and it’s fair to have a discussion about whether it’s a living boundary. But Hohnke contended that we haven’t had that discussion.

Hohnke expressed concern that the vote would be seen as a litmus test for supporting downtown residential density. [Hohnke Whoever wins the Ward 5 Democratic primary will likely face an independent challenge from real estate broker and DDA board member Newcombe Clark in November, based in part on a campaign that is more supportive of development than Hohnke has been during his first two years on the city council.] Hohnke’s defense of the council’s record on development included essentially the same list, with some additions, that he’d read aloud at a recent meeting between members of the DDA board and city councilmembers [Chronicle coverage: "Parking Deal Talks Open Between City, DDA"]

• 14 stories at S. Forest & S. University [601 S. Forest]
• 9 stories at Washington & Division [Metro 202]
• 5 stories at Liberty & First
• 10 stories S. University & E. University [Zaragon Place]
• 9 stories at First & Washington [Village Green's City Apartments]
• 4 stories at Liberty near Division
• 5 stories on N. Main near Summit [Near North]
• 9 stories at Kingsley & Ashley [Kingsley Lane]
• 8 stories at Maynard & William [The Collegian]
• 8 stories at State & Washington [411 Lofts]
• 8 stories at Washington & Ashley [Tierra on Ashley]
• 11 stories at Ashley & Huron [Ashley Terrace]
• 11 stories on North Main near Catherine [The Gallery]
• 12 stories at Main & William [William Street Station]
• and probably 14 stories at William & Thompson [Zaragon Place 2]

Because of all those approved projects, Hohnke said, the community’s commitment to downtown residential density and change was not hanging in the balance.

He came to the conclusion that the Heritage Row PUD did not meet the threshold for benefits, especially at that location.

Derezinski said he’d come to the opposite conclusion from Hohnke’s. He noted that he’d gotten a double-dose of the project – it had been around since he’d been on council and he was appointed as the council’s representative to the planning commission. He said he felt that the project had been modified to accommodate criticisms. He then ticked through some of the history of how the matter-of-right project had been introduced and the historic district study committee had been appointed with an associated moratorium to prevent the demolition of the seven houses.

Derezinski echoed the sentiments of Bob Dascola during public commentary, and called it one of the most creative projects he’d seen. It had been fine-tuned in response to input from the neighborhood, like the Near North project, he said. He compared the situation to the Peanuts comic strip where Lucy is holding the football for Charlie Brown – at some point you have to let him kick the ball, he said. The distinction of downtown versus non-downtown was not one that Derezinski felt was valid with respect to density.

Mike Anglin (Ward 5) said he wanted to join Hohnke in congratulating the people who had contributed to the dialogue during the long process. He noted that de Parry has maintained a strong sense of humor, and he applauded de Parry for that. Anglin put his comments in the context of “social capital” – a person’s home in the context of their social neighborhood are a part of that. It applies in particular to neighborhoods, Anglin said.

Anglin said he did not feel that the council would be protecting the public welfare with this project. He did not find a compelling justification, he said, for the project. He did not feel “dragged to” that decision. A hypothetical example of a compelling justification, he said, might be if there were an abandoned factory at the location and the owners did not want to take it down. If the owner came back and said that he wanted to demolish the factory and create a park, that would be a compelling reason for a change. Heritage Row, however, did not provide for a change that he was “absolutely thrilled with.”

Anglin speculated that the places where zoning would be challenged were the older parts of the city first – in 50 years he figured there might be debate over what should happen to Briarwood Mall. Maybe the affordable housing for the city would be built outside of downtown. He stated that people were obsessed with the idea that the downtown had to become a “major place.” Maybe that’s a place where affordable housing can be built, he said.

Marcia Higgins (Ward 4) alluding to the lengthy speaking turns of those who’d already spoken, asked mayor John Hieftje to enforce the time limits on councilmember speaking turns – five minutes for their first turn on an item and three minutes for their second turn.

Sandi Smith (Ward 1) began by describing PUDs as a tool – it allows something to happen that doesn’t quite fit into existing zoning. With R4C, she said, it was somewhat problematic, because what actually fit is not always pleasing. They tend to be big blocky buildings with six-bedroom units. She stated that she did not want it to be the case that the city’s development strategy tended towards having only a wealthy downtown. She said she was for a diversity of housing stock and different levels of affordability.

Smith said she did not want it to be the case that only the wealthy could live downtown. She echoed Derezinski’s points. She also pointed out that Heritage Row offered an opportunity to preserve the houses, and she did not see any other way for that to happen. Restoration of the houses could proceed only by someone purchasing each of them and deciding to renovate them – that would set up an elite neighborhood, she said. She concluded that she was willing to support the project – neither side was particularly happy, she said.

Margie Teall (Ward 4) characterized her thinking on the project as a “back-and-forth struggle.” Addressing Hohnke’s benefit gap, she said she felt that the gap had been crossed. She indicated that there was a high emotional attachment to the houses across the city – she found the restoration of the houses to be a benefit. She called the underground parking “terrific.” Alluding to the parking lots currently behind the houses where the new buildings would be constructed, she observed that living in an area where backyards are graveled is not a benefit. She allowed that Zaragon Place 2 was in the right place, but that it would not be cheap to live there, which is something that Heritage Row might offer. She concluded that she would support Heritage Row.

Christopher Taylor (Ward 3) said he would be supporting the project and that he adopted the planning staff’s review of benefits. He cited specifically the use of the backyard space as innovative, the use of the existing buildings, and the introduction of additional open space. He said he took very seriously the objections of those who had addressed the council.

In his view, Taylor indicated that some of the things he’d heard that night suggested that the project was not so far from the character of the existing neighborhood. Specifically, he alluded to a comment from someone [from Beverly Strassmann] who had suggested that the project would be acceptable if it had one story lopped off the rear buildings. That indicated to Taylor, he said, that “we’re pretty close with this thing.”

The current matter-of-right R4C project allows 144 beds, and the 163 beds offered by Heritage Row was very close to “where R4C lands us,” he said. He also noted the presence of the Washtenaw Building on William Street. All of these factors, Taylor said, suggested to him that the project was “not out of the heartland of the neighborhood” and that the neighborhood could “bear it.” The neighborhood was a “contradictory” neighborhood on the edge and takes elements of downtown and residential and marries them together in a useful and innovative way, concluded Taylor. He said he’d be supporting the project.

Stephen Kunselman (Ward 3) began by saying he would not be supporting the project. He referenced Hohnke’s argument about the failure to meet the standard of benefit. Kunselman observed that the project offered housing – but housing is built all across the city. Just because the buildings are in the backyards of some historic houses doesn’t make it a public benefit. He expressed dismay that the project had made its way all the way through the planning commission and to the council table without the public easement being included in the supplemental regulations.

During a recess that was called so that he could review the site plan for the matter-of-right City Place project, Stephen Kunselman (Ward 3) got a visit from Sabra Briere (Ward 1).

Kunselman expressed concern at hearing de Parry talk about buying the parcels since the 1970s, as if it was part of a plan to tear the houses down and build an apartment building. He suggested that the houses could be rehabilitated by having their old additions torn off and have new additions added – as opposed to constructing new buildings in the backyard.

One of the awards handed out by the historic district commission that evening, said Kunselman, was for a duplex that had been converted back to a single-family home. That was still possible, he said. The houses would not be torn down because of the temporary moratorium and if a historic district is established they will also not be torn down.

Kunselman said that a city that destroys its character by putting houses behind houses doesn’t always realize its density goals.

Note: During his election campaign, Kunselman had stated that he was against “backyard development.” From The Chronicle’s report of the July 11, 2009 city Democratic Party candidate forum:

The big thing for me about density of our community is that our downtown can obtain some greater density, but our neighborhoods need to be protected. And I think my record is pretty clear on that. I have fought hard for the changes to prevent backyard development – or make it much more difficult, I should say – to do backyard development in our neighborhoods. Particularly, in the neighborhood where I grew up, where we had three-quarter acre lots and developers could then come in and buy it and start building houses behind houses. Those are subdivisions, those areas need to be protected, and I understand the great concern that neighborhoods have, especially in our urban ring, are feeling about this idea of what density means.

Kunselman noted that many of the projects that Hohnke had listed off he was proud to say he’d voted for – so he was not concerned about achieving downtown density. He also questioned how affordable the units would be in Heritage Row, noting that they’d just heard someone from the developer’s team [John Dziurman] say that it was very expensive to renovate houses and to build underground parking. Maybe 14 of the units might be cheap, Kunselman said, but what about the rest?

Sabra Briere (Ward 1) began by saying she would not support the project. She said that the PUD was something that allowed the city and developers some flexibility to accomplish projects that were not otherwise possible. She noted that the report from the downtown residential task force – which several supporters of the project had cited – was one of several planning documents used by the city. The study area included a 1/4 mile band around the DDA area. She read aloud a passage from page 10:

The Task Force spent a great deal of time discussing the importance of adjacent neighborhoods to the downtown. The task force felt that adjacent neighborhoods should be preserved and supported. Although these neighborhoods are outside of the DDA district, many residents of these neighborhoods consider themselves to be “living downtown.”

As one strategy for increasing density, the task force report goes on to suggest that the city council consider a revision to the city’s accessory dwelling unit ordinance. That was the way the task force’s report suggested increasing density in the near downtown neighborhoods, Briere said, not through PUD rezoning like Heritage Row.

On page 16 of the report, she said, the task force identifies zoning as a possible barrier to density:

[...] zoning changes and development must be undertaken carefully to reaffirm the Downtown Plan goals of protecting the near-downtown neighborhoods and recognizing the transition in intensity, building scale and height on neighborhood edges, the Task Force recommends some change to almost every existing zoning district within the near downtown area.

But Briere pointed out that the task force pointedly recommended leaving R4C alone. And the areas near downtown where the task force had identified as possibly supporting greater density – the North Main corridor and commercial nodes like Packard & State – did not include the Heritage Row site, she said.

Examining the PUD ordinance language, Briere observed that the land itself was not difficult to build on. She noted that the public plaza was not actually available to the public.

Hewing to Higgins’ earlier request that time limits be enforced, Hieftje informed Briere that her five minutes were up – but suggested she might continue, using her second speaking turn of three minutes. To that, Briere declared cheerily, “Oh, no, that would be so wrong, and I would hate to disappoint councilmember Higgins.”

Stephen Rapundalo (Ward 2) said he found himself in agreement with the planning staff report. It strikes a balance between the look and charm that people want to maintain in the area, while providing a diversity of housing stock. He supported the addition of workforce-type housing, which is needed near downtown. The underground parking is also a plus, he said. He was struck by the fact that R4C would allow for more square footage to be built on those parcels, which he said nobody wants to see.

For his part, Hieftje first confirmed with the Kevin McDonald, assistant city attorney, that if the Heritage Row project were approved, it would no longer be possible to build the matter-of-right City Place project.

Hieftje characterized Heritage Row as “more palatable” than the matter-of-right project. If a historic district were not enacted, he said, de Parry could build that project. Hieftje said he was largely in agreement with Hohnke’s list of approved developments. He said he was torn, but would support the project based on the idea that the matter-of-right project would be built if no historic district is established.

Taking his second speaking turn, Hohnke said he feared it would set a precedent for other developers – building something would be okay as long as the houses are not demolished. He also noted that the amount of affordable housing that’s offered is only 14 units and that it’s located in an area that has not been identified as in need of additional affordable housing.

Kunselman then raised some doubt as to how he’d vote – a switch to yes from no by Kunselman would have given Heritage Row the eight votes it needed for approval.

He noted that he was the only councilmember who was not serving when the matter-of-right project was approved, so he wanted some description of it. Hieftje told him that it was “blockish” in nature and that it would replace the seven houses instead of restoring them.

While Kunselman mulled the matter-of-right, Briere noted that the developer for The Moravian had studied previous PUDs in the city – and that meant that future developers would look at the council’s words and actions on this decision. Is the accumulation of lots and building buildings behind buildings appropriate for infill development to increase density? Is that our intent? she asked. There were seven individual lots that were likely not appropriately zoned R4C, but were accumulated – not through a legal prescription, but merely for the purposes of this development. The lots have to be combined for the development to work, but they’re not legally one lot today. It was a question of whether we want to do that, she said.

In response to Briere’s hinting that a decision about a PUD represented a precedent of some kind, Hieftje elicited from McDonald the explanation that a decision on a PUD was a legislative decision, and did not have “precedential value.”

Responding to earlier points that only 14 units would be affordable, Smith pointed out that there was a difference between workforce housing and elite housing. She said she wanted to see a diversity in housing options. She noted that she was able to count and realized that it would have to be sent back to the drawing board. She encouraged the developer to come back with fewer units and it would fit the R4C zoning and would not require rezoning approval.

Taylor said he differed from Briere and Hohnke in that the city currently has a site plan on the books that’s ready to go that has aggregated parcels. Whether that’s something that should be changed going forward is an “open and good question,” he allowed, but at this point, the parcels are capable of aggregation.

Kunselman asked McDonald what would prevent the council from postponing the vote. McDonald indicated that it would be appropriate to postpone if the council felt there needed to be additional work done on the project, or if there are additional questions that need to be answered, or for some other reasonable reason. Kunselman said he appreciated the mayor’s concern about the matter-of-right project and asked his colleagues to postpone the vote until the next council meeting. He said that because he didn’t have intimate knowledge of the matter-of-right project, he’d like two weeks to look at it and perhaps change his vote.

Briere noted that a two-week postponement would put Heritage Row on the same agenda as the final historic district vote. Hieftje suggested that Kunselman request that the postponement be placed on the agenda after the historic district decision.

Hohnke, though he seconded the motion to postpone, said he would not support the postponement, saying that it would not be fair to everyone to delay. As far as the concern about the matter-of-right project, Hohnke noted that there was still a moratorium in place and that if a historic district were established, the matter-of-right would have to be reviewed by the historic district commission.

Smith suggested that the meeting be recessed so that Kunselman could be informed enough to be comfortable.

Outcome: After the recess, the roll call vote on the postponement had in favor: Kunselman, Taylor, Hieftje, Smith and Briere. The postponement thus failed with just five out of 11 votes.

Outcome: Heritage Row was rejected on a 7-4 vote in favor. It needed eight votes for approval. On the PUD itself, the four councilmembers voting against it were Kunselman, Anglin, Briere and Hohnke.

Fourth/Fifth Avenue Historic District (First Reading)

Before the council was a recommendation to establish a historic district along Fourth and Fifth avenues that can be described roughly as between William Street on the north and Packard Street on the south. The council had rejected the idea of establishing a study committee in late 2008, but changed its mind in mid-2009, when the matter-of-right City Place development project was moving through the city’s approval process. The council gave the study committee appointed in 2009 a smaller area to study than had been suggested in 2008. Chronicle coverage includes:

• “The Constitution of Historic Districts“
• “S. Fifth Avenue: Historic District Development“
• “No Formal Study Committee for Germantown“
• “Demolition Moratorium for Two-Block Area“

Historic District: Public Commentary

Beverly Strassmann introduced herself as a resident on South Fifth Avenue. She lives south of Packard Street and spoke on behalf of other residents who live south of Packard on South Fifth, which is an area not included in the area recommended as a historic district by the study committee. She said they opposed the historic district as currently configured, with a southern border at Packard Street. She characterized it as created “on the fly” – set up to prevent developer Alex de Parry from demolishing houses for a new development. She said the way the committee and the proposed district had been set up was not lawful. She said they supported a historic district, and that it was important to include the one intact block of South Fifth – south of Packard – in the whole neighborhood. The 500 block of South Fifth, she said, is the center of the district, the area with the greatest density of historic resources.

There were also historically important people who lived south of Packard, among them the Manns and the Allmendingers, she said.

Claudius Vincenz told the council he’d try to pick up where his wife, Beverly Strassmann, had left off. He pointed to the relationship between the Mann family – who still own a house in the neighborhood south of Packard, who had married with the Schmids, who lived north of Packard. Packard Street, he concluded, was not any real boundary in the neighborhood.

Vincenz said he was against the historic district as proposed. There is a lot of value in protecting historical houses, he said, but this historic district had been “conceived in a hurry,” because of the fear that the seven houses on Fifth Avenue would be destroyed. The study committee, he continued, faced an impossible task of completing the study. It was a case, he said, of the city council wanting to use the study committee’s expertise as “cover,” but defining the boundary of the historic district itself as the council. He characterized the way the council had proceeded as “circular” – the kind of reasoning that would crash a computer, but is common to the council, he said.

Historic District: Council Deliberations

Tony Derezinski (Ward 2) led off the deliberations on the establishment of a historic district by noting that the council had just witnessed a lot of history and he wanted to go back to the time when the study committee had first been proposed. The boundaries had been substantially larger, he said, and the council had voted it down. He’d voted against it then, he said, because he felt that such study committees were self-fulfilling prophecies. From The Chronicle’s Dec. 15, 2008 meeting report:

[Higgins] also noted that the supporters of the study committee came from a two-block square, much smaller than the area of proposed study. She said she would like to see a bigger dialogue.

Councilmember Tony Derezinski reiterated Higgins’ points. He also said that in his work as the council’s representative to the planning commission that there was a lot of comprehensive planning work going on citywide, and that this neighborhood needed to be considered in that context. He expressed concern about the short time frame from Friday to Monday that council had for consideration of the resolution. He also expressed concern about the possibility that the appointment of a study committee would result in a “self-fulfilling prophecy.”

He’d also objected when the historic district, with an accompanying moratorium on demolition, was introduced in August 2009, he said. From The Chronicle’s report of the Aug. 6, 2009 city council meeting deliberations for a smaller study area:

Derezinski said that while he was glad that some councilmembers had had a chance to consider the proposal, he had not, because it had been sprung the same night. He contrasted the process for the moratorium on development in R4C areas, which had stretched over four meetings. Here, the council was being asked to make a decision in 10 minutes. He said he wanted to hear staff input. “I’m asking for 12 days [until the next meeting],” he said. Derezinski noted that while it was a similar proposal to the one council had considered in December 2008, it was not the same one.

That had passed, Derezinski reminded the council. And now, one of the recommendations of the study committee on the size of the district was, “Guess what? To expand it again!” One of the speakers during the public commentary [Beverly Strassmann], Derezinski said, was right when she characterized it as proposed at the last minute to block a project. That was a very candid assessment, Derezinski said, while allowing that the speaker was making the point to argue that the district should include another block of buildings. He then read a chunk of a letter sent to the council from one of the members of the study committee, Rebecca Lopez Kriss:

The committee was not tasked with analyzing economic effects that may result from this designation, nor the feasibility of its historic rejuvenation. We were not asked to analyze how a historic area would fit into long-term planning and land use for the City of Ann Arbor, nor how historic designation would fit into the current review of the R4C/R2A areas. We did not study how the area would affect long-term revenues for the city based on alternative uses. The reality is that our committee members are not experts in economics, urban planning, or urban finance. Our committee was made up of dedicated historians answering a single question.

Derezinski said that the letter provided a cogent argument against establishing the district and urged his colleagues to vote against it.

Mayor Johnn Hieftje reminded councilmembers that the proposal was receiving only its first reading. [It's somewhat unusual for councilmembers to vote against a proposal on first reading.]

Carsten Hohnke (Ward 5) indicated that he would support the proposal at the first reading “as is the custom.” He noted that the fact that the committee didn’t take into account the economic impact was not an argument against a district. Those factors needed to be taken into account – as well as the challenges that homeowners would face. He also noted that there could be significant benefits to the community. He thanked Derezinski for the reminder that there are other things to think about.

Mike Anglin (Ward 5) said he’d read the letter. He noted that there were enough local historic districts that it would be worth it for staff to prepare an analysis of property values and taxes collected in the city’s historic districts to determine if the districts played a vital role in economic development.

Stephen Kunselman (Ward 3) indicated that he guessed he hadn’t received the letter, but noted that the writer had spoken at the public hearing on The Moravian project. His recollection was that her comments were quite disturbing with respect to the characteristics of the neighborhood. He felt the letter should be viewed in the context of those remarks. The commentary that Kriss gave on The Moravian is summarized this way in The Chronicle’s report of the April 5, 2010 council meeting:

Introducing herself as a member of the board of the Ann Arbor Area Chamber of Commerce and a member of the Fourth/Fifth Avenue historic district study committee, Rebecca Lopez Kriss urged the council to vote yes [on The Moravian]. As a young professional and graduate student, she said, she did not want to live in a dilapidated old house or in a “white box” out by Briarwood Mall. She questioned the criticism that The Moravian would be out of character with the neighborhood, pointing to the Perry School, the university building and the light industrial uses across the street. She described The Moravian as functioning as a buffer between those uses and the neighborhood to the north. She encouraged people to read Jonathan Levine’s book, “Zoned Out,” which discusses zoning as a tool of exclusion.

Outcome: The council voted at first reading to approve the historic district with dissent from Derezinski, Higgins, and Rapundalo.

Development Approval Process: Display of Plans

Before the council for its first reading was an ordinance revision affecting the availability of site plans for public inspection.

Currently, the city’s code on the approval process requires that up-to-date drawings for site plans be available in the lobby of the city hall 24/7 for a week before public hearings. The proposal recommended by the planning commission would relax the code by deleting the 24/7 requirement and by making clear that there’s not an obligation to continually update the material with any changes that might be made. Material recommended to be deleted is struck through, with proposed added language in italics.

5:135. Public information and hearings.

(2) Area plans, site plans, site plans for Planning Commission approval, PUD site plans, and preliminary plats and land divisions under review shall be displayed in a publicly accessible location in City Hall open to the public 24 hours per day, 7 days each week, for at least 1 week prior to the City Council and Planning Commission public hearings. Plans shall be current at the time of placement and subsequent revisions, if any, shall be available in the planning offices.

Back in the summer of 2009, City Place came before the city council, but was remanded back to the planning commission, due in part to errors the city had acknowledged involving the public information requirements of the city code.

The city’s planning commission has recommended approval of the ordinance change along with other technical revisions. [Chronicle coverage: "Planning Commission: A Matter of Timing"]

During the deliberations on the ordinance revision, Sabra Briere (Ward 1) noted that the issue was of interest to many people in the community – she wished for a more creative solution than simply not requiring plans to be available 24 hours a day. The solution was more restrictive, not more open, and she lamented the fact that the city planning commission had not discussed it at their meeting.

Briere asked Tony Derezinski (Ward 2), who is the city council’s representative to the planning commission, to clarify the thought behind the ordinance change. He deferred to planning staff. Head of planning, Wendy Rampson, took the podium and said she could answer specific questions. Briere noted there are so many technological opportunities available besides making paper copies of blueprints available – for example, making them available on touch screens. The ordinance change means that you have to go to the sixth floor of city hall during business hours. It makes the information less accessible.

Briere wondered why more time had not been invested in coming up with something more cutting edge, instead of just adding a restriction. Rampson said she believed that the lobby display of plans had become somewhat outdated – up until a few years ago, it was the only way to see the plans. But now, she said, all the plans are included as .pdf files as a part of the Legistar system available on the web. So for those who have computers, they can access the information that way. For those who don’t have computers, the public library has public computers available, she said.

Part of the challenge, Rampson said, is that they cannot necessarily guarantee access to the lobby due to security concerns. As far as touch screens, she said, due to budget constraints, the staff had not explored that as an option.

Stephen Kunselman (Ward 3) indicated he shared Briere’s concerns. He asked city administrator Roger Fraser about access to the lobby of the new municipal center, but Fraser said that the details had not yet been worked out.

Outcome: At first reading, the ordinance revision for display of plans passed. To be enacted, the council will need to approve it at a second reading.

Development: Village Green Option Extension

Before the council on June 21 was a resolution to give a brief extension on Village Green’s option to purchase on the First & Washington property. The company has site plan approval to develop the City Apartments project on that city-owned site. City Apartments is a planned unit development (PUD) featuring 156 dwelling units and 244 public parking spaces. The extension goes through Aug. 5, 2010, which is the date of the council’s first meeting in August.

Village Green: DDA Connection

The extension of the purchase option has been part of the discussions between the Downtown Development Authority and the city about the parking agreement under which the DDA manages the city’s parking system. DDA board member Newcombe Clark has pushed for a sunset on the DDA’s commitment to support the City Apartments project as part of the consideration that the city would offer to the DDA in exchange for a $2 million payment that the DDA has already made. The DDA has made a $9 million commitment for the City Apartments project in connection with a public parking deck that is a part of the building.

The council’s meeting featured an update from Christopher Taylor (Ward 3) on the meetings between the city council and the DDA board. Taylor gave a report on the activity of the council’s mutually beneficial committee, which met with the corresponding committee of the DDA to discuss a renegotiation of the parking agreement. He reported that the DDA had revealed a distaste for the idea of taking responsibility for code enforcement beyond the rules that apply to the parking system.

There would be further conversations, reported Taylor, about the DDA taking responsibility for enforcement of parking regulations. The DDA had expressed enthusiasm for serving as the development engine for downtown city-owned lots, and would be developing a more complete proposal for how that would be implemented. Later in the meeting during an additional communications slot on the agenda, Taylor indicated to his council colleagues that there would be a working session on the topic of the city-DDA discussions just before the council’s next regular meeting, scheduled for Tuesday, July 6.

Village Green: More Background

The cover memo to the resolution on Village Green that was considered by the council on Monday cited the overall economic climate and the difficulty in obtaining financing as the reason for Village Green’s inability to move forward. The fact that Village Green has named financial partners on the deal is cited as part of the reason for granting the extension.

From Village Green’s letter, included in the council information packet:

We have selected a joint venture equity partner, LaSalle Investment Management, a national institutional investor based in downtown Chicago with an extensive portfolio of real estate and a strong financial standing in the industry. Like many institutional investors, they were reluctant to invest in real estate over the past 18 months due to the turmoil in the economy. Now that they are ready to get back into investing in apartments, they are excited about the opportunity to complete a transaction in the City of Ann Arbor with Village Green. LaSalle has full discretion of a fund that has over $400MM of equity to invest, so they have the ability to execute in an expeditious and streamlined manner. [...]

As it relates to construction financing, we now have a term sheet from U.S. Bank with whom Village Green has completed 4 other new construction projects in the past eight years. We work with their downtown Chicago office where they understand the Midwest and Ann Arbor markets. Also, we now have a source to provide gap financing in the event that the primary construction lender cannot provide sufficient proceeds. That source is the general contractor, Skanska.

Village Green: Council Deliberations

Sandi Smith (Ward 1) asked for more of an update than what’s in the packet. What exactly was the short extension for? Tom Crawford, chief financial officer for the city, indicated that the short extension was to be used to establish a timeline of events – a reasonable timeframe for the next steps to occur. There would be a more comprehensive document, Crawford said, by the time the item reappeared on the council’s agenda. Smith wanted to know if there was an anticipated start date for the project. Crawford said that a start date was a little too soon to talk about at this point. In response to Smith’s desire to know some ballpark idea, Crawford asked Jonathan Holtzman of Village Green to come to the podium to answer questions.

Jonathon Holtzman of Village Green appeared before the council to answer questions about the extension for the purchase option Village Green has on the city-owned property at First & Washington.

Holtzman indicated that Village Green’s delay on the project was a function of the financial markets and not any lack of commitment to doing the project. Their financial partners seemed now open to receive letters of inquiry to talk about transactions. At the end of last year, he said, Village Green had done a project in Minneapolis – the only new apartment construction in the entire Midwest.

A project Village Green expects to start in Chicago, he said, could be the only new apartment construction for this year. Ann Arbor, he said, would be in excellent company. He noted that Village Green had been an owner-operator of apartments in Ann Arbor since the early 1970s. The request for an extension, he said, was to be able to work directly with the city staff to re-engage the fire department, the building department, the architects and engineers, to create a very specific timeline so that they can respond with a detailed list of milestones.

The problems from this point, Holtzman said, were not expected to be financial, but rather the normal problems between a developer and a city. Holtzman said the list of milestones would be the way of measuring whether Village Green deserved an extension.

Stephen Kunselman (Ward 3) said that for him it was déjà vu – it reminded him of the project on the old YMCA site [William Street Station]. That developer had had milestones, too, said Kunselman. And at that time the economy was supposedly in good shape. [The city council eventually pulled the plug on William Street Station when the developer missed milestones. It is now the subject of a lawsuit that the developer brought against the city, although major elements of that suit have already been dismissed.]

Kunselman said he wouldn’t be supporting the short extension – it would require staff time. That planning staff time would wind up being charged as overhead under the municipal service charge. And that was important, he said, because the council was not amending the budget to accommodate the staff work. It was different from the residential parking permit program the council was considering that evening, which required amendment of the budget so that city staff could work on that project.

Kunselman stated that under an option agreement, typically a developer would put some money down as a down payment. “Would you be willing to pay … so that the taxpayers aren’t paying for this effort of ours to continue this charade of a partnership?” Kunselman asked Holtzman. Mayor John Hieftje interceded and suggested that Tom Crawford might be able to address the question. Kunselman stated that the council had been down this road before and it had not come to fruition – they need to go in a different direction. He suggested that new direction was to take the design specifications for the project and put them into a deed restriction on the city-owned property, then put it up for sale with those restrictions. Now is the time to try that, Kunselman said.

It was city administrator Roger Fraser who eventually addressed Kunselman’s question. Fraser said that the city would not be providing anything beyond what they’d provide any developer at this point, which would be a review of the pending approvals that would be necessary once the construction plans were submitted, and what timelines would be in connection with those plans. There would be no extraordinary efforts, said Fraser – it would simply be a normal plan review and estimation of what it would take to get this job done. The city would not expect an developer to pay extra for that, said Fraser, to take what is an already-approved project from a planning phase to a construction project.

Kunselman wanted to know what has happened during the last three years. Fraser said that Village Green had been waiting for the financial markets to open up so that they could go forward with the project. He reminded Kunselman that this was one of those rare projects that had received support from the neighborhood. The project meets the objectives of the community, said Fraser, and is a project the DDA is partnering on. Rather than asking for a longer extension, Fraser said, it was only a short-term extension in order to develop a more comprehensive plan with milestones. The idea is that the city would not have to do this again – this would be the last shot, said Fraser.

Kunselman asked if that meant that in August the council would be approving another extension. Kunselman also questioned whether the development of milestones was actually typical of staff efforts with regard to developers in general. Reviewing construction plans is one thing, Kunselman said, but review of construction plans for construction permits does not entail establishing a series of milestones. Fraser indicated that what Village Green was asking for was estimates for time required to perform the various stages of review.

Outcome: The council approved the extension of the option to purchase for Village Green, with dissent from Kunselman.

Public Commentary, Council Responses, Communications

A number of speakers addressed the council at the start of the meeting during public commentary reserved time, and councilmembers had several communications they conveyed.

Communications on Parking Permit Programs

During her communications time, Sandi Smith (Ward 1) indicated that the agenda item that evening would be for a residential parking permit program for the Old Fourth Ward neighborhood. At the council’s next meeting, she hoped, on the council’s agenda would be a residential parking program for the South University neighborhood. [Note: The residential parking permit program was approved, but is not covered in detail in this meeting report.]

Communication on Civil Rights

Sabra Briere (Ward 1) told her colleagues that there was a bill that some legislators were contemplating for Michigan that would be similar to the law Arizona had passed, making it legal for police to ask for IDs. She informed her council colleagues that she would likely be bringing forward a resolution stating the council’s opposition such a law.

Communications from the City Administrator

Roger Fraser, during his communications time, told the council that as the elections were drawing nigh, the absentee ballots were being sent out. [See Chronicle coverage: "Column: A Pitch for Absentee Voting"]

Fraser also indicated that the summer tax bills were being sent out the following week, which are, he quipped, “another joy of summer.” He reminded councilmembers that tax bills could be paid online.

Fraser reported that on June 10 the Center for Independent Living had hosted a picnic in Gallup Park and that over 200 people had attended – they’d taken out canoes and kayaks, he said.

Fraser’s update on the ongoing construction of the municipal center was that work continues on electrical, plumbing, drywall, and bathroom tiling. A lot of work was being done in the basement of the Larcom Building as well, he reported. The streetscape contractor for the Fifth and Division project was working its way past the municipal center work site on Fifth, he said.

The structural steel work is complete for the elevator tower. A barrier had been removed from the third floor, where the administrator and mayor’s offices are located, he said – adding that it is possible now to jump, if the mayor ever felt the need to do so after a council meeting.

The mayor confirmed with Fraser that the construction was still on schedule to be completed and for the city to be out of the leased facility with the county by Jan. 1, 2011.

Comment on Local Ordinances: Vegetation

Tom Petiet introduced himself as the landlord at a property on Arch Street. He suggested to the council that they consider a revision to the city’s ordinance that prohibits vegetation on lawn extensions – the area between the sidewalk and the road – higher than 3 feet. Last year, he said, they’d received notice that a bush at their rental property was four feet tall. They had not been able to act in time, and the city had then cut the bush down to 3 feet tall. They’d gone to court about it, he said, but the court had no latitude in the matter due to the vagueness of the ordinance language, he said, that prohibited any vegetation from being taller than 3 feet. He distributed some photographs of different properties in the general area of the property.

Petiet noted that several cultivated plantings in the area were all in violation of the city’s ordinance, but that they contributed to the beauty of the city and were ecologically sound. He said they do no harm, so he wondered why the ordinance condemns the plantings. As it stands, the police have no alternative but to cite these plantings. Exceptions to the 3 foot height shall be granted in cases where decorative bushes and flowers are maintained which do not hinder automobile sightlines at corners and do not impinge on walkways and roadways. He also suggested that the warning and notification methods be changed – he said they’ve only been given 24 hours from the time they were notified to the time they needed to remediate the situation. In the case of rental properties, he said, the notification should go to the owner of the property, not the address of the property itself.

Later during the council meeting, during her communications time, Margie Teall (Ward 4) indicated that she felt the ordinance needed to be re-examined.

Comment on Local Ordinances: Pedestrian Safety

Kathy Griswold reminded the council that she’d spoken to them in the past about the need to move a crosswalk in front of the King Elementary School from a mid-block location to an intersection. A related issue, she said, was a press release issued by the city of Ann Arbor on June 10 about a program to promote pedestrian safety. However, she said, what sounded like good news actually revealed a superficial understanding of pedestrian safety issues and laws. Three conditions contributed the problem, she said. First is city officials who micromanaged things. Second is an autocratic city administrator, and third is traffic engineers who are required to make decisions based on what is politically popular, she said. Alluding to Petiet’s comments about his experience with the vegetation ordinance, she said the requirements make the professional police force and traffic engineers look stupid – the laws were not being applied consistently and nothing but political games were being played, she said.

At the point where a child is injured or killed due to the political game-playing, she predicted, city officials would then form a task force to make sure this issue is addressed. She therefore wanted to make sure it was a part of the public record that political gamesmanship had been going on for years and that it was wrong. There is a state law that prohibits parking within 20 feet of a crosswalk, she said, but the city itself had configured a crosswalk located next to parking spaces near city hall, then placed a flashing warning sign there to warn motorists.

MICHIGAN VEHICLE CODE (EXCERPT)
Act 300 of 1949

257.674 Prohibited parking; exceptions; bus loading zone; violation as civil infraction. Sec. 674.

(1) A vehicle shall not be parked, except if necessary to avoid conflict with other traffic or in compliance with the law or the directions of a police officer or traffic-control device, in any of the following places:
(a) On a sidewalk.
(b) In front of a public or private driveway.
(c) Within an intersection.
(d) Within 15 feet of a fire hydrant.
(e) On a crosswalk.
(f) Within 20 feet of a crosswalk, or if there is not a crosswalk, then within 15 feet of the intersection of property lines at an intersection of highways.

Returning to the issue of the King Elementary crosswalk, Griswold indicated that Hieftje had recently suggested to her a holistic approach. She said that the city had had a holistic and comprehensive approach in place since the late 1960s in the form of a transportation safety committee and that the committee had recommended the crosswalk be moved, but on Oct. 30, 2010 the city administrator had vetoed a decision to move the crosswalk, instead opting for a “good old boys” approach of studying the problem for maybe another year or two, she said.

During his communications time, Carsten Hohnke (Ward 5) told his council colleagues there was a targeted enforcement campaign for crosswalks going on, with flashing signs at Seventh & Washington and at Fifth & Ann. The signs indicate that it’s local law to require motorists to yield to pedestrians. There would be additional steps taken soon, Hohnke said. [An agenda item proposing an ordinance revision had been stricken from the agenda.]

Comment on Allen Creek Study

Vince Caruso spoke on behalf of the Allen Creek Watershed Group, which he said had produced a watershed management plan for Allen Creek in 2001 that had been accepted by the Washtenaw County drain commissioner’s office, the city of Ann Arbor and the Michigan Dept. of Environmental Quality. He called for a scientific study of the Allen Creek watershed and a remapping of the floodplain. All major watersheds in the Ann Arbor area had been scientifically studied, he said, except for Allen Creek. There was a great desire by some to develop in the floodway, he said, citing the arts community interest in developing the 415 W. Washington property, which has an entrance in the floodway. But he noted that a letter of map revisions from FEMA showed a 33% increase in the floodway, and said the MDEQ did not support building on stilts in the floodway. Southern Michigan had seen several 100-year rains in the last three years, he said, as well as a 500-year rain. After a recent rainfall, Caruso said, there had been 4.5 feet of standing water behind Virginia Park. Scientific groups, he said, had attributed this change in rain patterns to global warming. There are 1,500 homes at risk in the Old West Side, he said.

During his communications time, Mike Anglin (Ward 5) picked up on comments made by Caruso about the Allen Creek watershed. Anglin said it was the largest, yet least studied watershed in the area. He said it was important to understand how much water flows through it – at what points and in what intensities. He acknowledged that there had been a lot of money spent on two projects to address issues in the Allen Creek watershed – at Pioneer High School and in West Park – and the city had been moving forward. But he also stressed the importance of having a scientific study of Allen Creek like the city had for the other watersheds.

Communications on Fuller Road Station

Christopher Taylor (Ward 3) gave an update from the park advisory commission (PAC), on which he serves as an ex officio member as a representative of the city council.

He described how PAC had passed a resolution on the Fuller Road Station after a long discussion, which would be forwarded to the council. He indicated that PAC had expressed a measure of concern that PAC’s role as an advisory body had not been recognized to its satisfaction and would like there to be appropriate consultation with it. The PAC resolution Taylor summarized urged that the complete plans for the station be made public, that there be hearings on the project and that PAC be held harmless with respect to revenue plans. [Chronicle coverage of that PAC discussion: "Park Commission Asks for Transparency"]

Following up on Taylor’s remarks, Mike Anglin (Ward 5), who also serves as an ex officio member of PAC representing the city council, reported that PAC had spent six hours discussing the resolution related to Fuller Road Station. He said that the way the city had proceeded had “upset the stewards of the park system.” Anglin indicated that the mayor had presented his view of the situation directly to PAC. [Chronicle coverage: "Hieftje Urges Unity on Fuller Road Station"]

If Fuller Road Station were not proposed on land designated as a park, Anglin said, they wouldn’t be hearing about it. PAC had indicated that it was not pleased with the terms of the memorandum of understanding signed between the city and the University of Michigan, but that the mayor had indicated it could be renegotiated. The concept had merit, Anglin said, but the vision for the station should have been conveyed to PAC earlier. If there are plans like these, he said, it is important to make them public way in advance.

Later during an additional communications slot, Anglin noted that the city had launched a survey on the PROS plan and had received around 600 responses so far – he said they were hoping for 1,000 responses.

Hieftje clarified that the proposed location for the Fuller Road Station was not on the same side of the street as the swimming pool at Fuller Park. He also said it had not been stressed enough that the university’s contribution to the project would be enough to satisfy the local match requirement for various federal grants. He allowed that the timetable was a “little fluid” depending on when the transportation bill moves through the Congress.

Comment from State Senate Candidate

Thomas Partridge noted that the country had entered the second year of President Obama’s administration, as he introduced himself as a Washtenaw County resident living in Scio Township. He told the council that he was running for the 18th state Senate seat to represent senior citizens, the disabled and veterans – all those without a voice. He called the various awards handed out for local preservation efforts at the start of the meeting “worthy” and said that there were other sites worthy of recognition as well. Those other sites were places where civil rights demonstrations and peace protests had been held. He noted the importance of providing affordable housing, affordable transportation, health care and education to everyone.

Comment on Homelessness

Lilly Au asked the council to consider issues from a balanced point of view. She contended that the historical designation for the houses in the Heritage Row project was not appropriate because there was nothing historically remarkable about them. She asked the city council to consider the supply and demand for affordable housing units – mentioning in particular the loss of 100 units of affordable housing in connection with the demolition of the old YMCA building several years ago. She then described basic conditions of life at Camp Take Notice, a tent city now located west of town near Wagner Road on a public right-of-way. She described in mildly graphic detail how residents made accommodations for going to the bathroom.

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

Next council meeting: Tuesday, July 6, 2010 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]

Mike Rein of Bowers + Rein spoke to the Ann Arbor city planning commission in opposition to eliminating time deadlines for planning commission and city council review of site plan submissions. (Photos by the writer.)

He was illustrating why he thought deadlines in the approval process for site plans and other petitions were a good idea.

But Pratt was the lone dissenter on the commission, which recommended that deadlines in the city’s zoning code be replaced with a standard of “reasonable time.”

The current deadlines apply to two different stages of site plan reviews. The first is the maximum time between the planning commission’s receipt of a report from city staff and the commission’s recommendation – 60 days. The second stage is the time between the planning commission’s recommendation and city council action – 30 days. The commission voted to recommend replacement of the deadlines with language that refers to a “reasonable” time.

Currently, if the bodies do not act within the prescribed time parameters, site plan petitions are considered to be recommended or approved automatically – by default. At its Tuesday meeting, the automatic approval language was recommended to be dropped from the city code.

The code changes regarding timing would now need city council approval in order to take effect.

The timing issue joins two other technical revisions to the city’s zoning code, which the planning commission voted to recommend at its previous meeting. Those revisions involve fee reimbursements associated with applications and a requirement that up-to-date drawings for site plans be publicly accessible 24/7 for a week prior to public hearings.

At Tuesday’s meeting, the commission also heard a presentation from the city’s environmental coordinator, Matt Naud, on the city’s environmental indicators. Part of the background of the presentation was a recent joint meeting of the city’s planning, energy and environmental commissions that focused on sustainability.

Technical Revisions – Time Parameters for Decisions

Before the planning commission was a technical issue on the maximum time allowed for decisions on projects that are brought through the city’s development review process. The proposed amendments to the city’s zoning code are part of a related set of technical revisions the planning commission is handling. The timing issue had been looked at a year ago and had been sent back to the city attorney’s office by the planning commission with suggested revisions.

Any change to the city code would need to be approved by the city council.

Time Parameters: Background Description

Wendy Rampson, head of planning for the city, summarized the proposed code changes for the commission. The amendments, she said, will change when the planning commission provides its recommendation to the city council for area plans, site plans, plats, and planned project petitions. It will eliminate the 60-day limit. It will also eliminate the current requirement for the city council to approve or reject a petition within 30 days. Instead it requires the city council to take action within a “reasonable time.” Finally the amendments will eliminate the assumption that a petition is considered approved if no action is taken within the currently specified time period.

For most of the petitions, she said, planning commission makes its recommendations to the city council within 60 days of receiving the staff recommendation. And the city council must make a decision within 30 days of receiving the planning commission’s recommendation on those items – 90 days in the case of a planned project. Any of the petitions are considered to be recommended by the planning commission or approved by the city council, unless the body acts within the specified time limit. But both bodies, she said, can exceed the time limits by 30 days if they elect to extend the time limit.

None of the time limits, she told the commission, are required by state law. She suggested that the time limits were included in the code as a way to indicate accountability for the process. There’s always an interest, she said, in moving forward with projects so that they are not stalled. But city staff and the commission have also expressed concern about moving forward with projects without full staff review and being complete in the evaluation before petitions are put up for recommendation or a decision.

The current timing requirements, Rampson said, leave very little room for the resolution of complex issues – for example, when there is a neighborhood concern that requires staff to go back and meet with the developer. Rampson called the assumption that a petition is approved if not acted on within the time parameters “burdensome” because of situations where a review would not be complete if they adhere to the strict rule of the time frame.

The language, Rampson said, was in the state enabling legislation for planned unit developments (PUDs) – it allows for a “reasonable time” to do the review. Among the petitioner, the public, the planning commission, and the city council, Rampson said, there’s an interest in moving projects forward. The proposal, she said, would also remove the assumption that a project would be approved by default if no action were taken. She said that the planning commission’s ordinance review committee had reviewed the changes a year ago, and the planning commission as a body had already reviewed some of the items – the plat project changes that needed to be made not been included at that time – and the planning commission had at that time recommended approval.

But Rampson told the commission that a year ago there had been some concern about the language. The city attorney’s office as well as planning staff had gone back and done additional research, and the insertion of the phrase “reasonable time” had come out of that additional work. The ordinance review committee had most recently looked at the issue in March of this year and recommended the changes for approval. So the city staff is recommending approval of the changes, she said.

Time Parameters: Ordinance Text

The amendments on time parameters cover submissions for approval of planned projects, area plans, site plans, and plats. Here’s the proposed amendment for site plans. The language to be deleted is indicated with a strike-through. Language proposed to be added is in italics.

Chapter 57 – 5:122. Site plans.
(3) Site plans for City Council approval. Except as otherwise provided in this section, City Council shall review and approve or reject a site plan after receiving a report and recommendation from the Planning Commission. The Planning Commission shall submit its report and recommendation to the City Council within 60 days of receiving a report and recommendation from the planning and development services manager or designee. The City Council shall approve or reject the site plan within 30 days of the recommendation by the Planning Commission. Within a reasonable time following the close of the public hearing, the Planning Commission shall make a recommendation to the City Council to approve or deny the planned project. Upon receipt of the Planning Commission’s recommendation, the City Council shall approve or reject the planned project within a reasonable time following the close of the public hearing. If approval is conditioned on changes to the site plan, the petitioner shall submit revised drawings with the necessary changes to the planning and development services manager or designee within 30 days of approval by the City Council or the site plan approval shall lapse. Any changes to a condition placed on the site plan by City Council shall require City Council approval.

Time Parameters: Public Hearing and Commentary

Mike Rein of the architectural planning firm of Bowers + Rein was first to address the commission during the public hearing. He began by saying that he wanted to clarify he was not against dropping the provision that a project would automatically be approved if no action were taken within the time parameters. He had concerns instead about eliminating the time requirements. From a petitioner’s standpoint, he told them, to get before the planning commission was already a very difficult and time-consuming process.

If it’s a complex petition, Rein said, there are a lot of different review departments and professional staff who have to review the project. It’s “no small undertaking” to get before the planning commission, he said. One thing you could always count on as a petitioner, he said, was that if you got before the planning commission or the city council, it would move along in a timely manner. He asked why it was necessary to eliminate the 60-day time limit entirely. Why was it not possible to try a 90-day or a 120-day time limit? The language of a “reasonable” time frame did not provide a lot of assurance, he said.

Kyle Mazurek, vice president of government affairs for the Ann Arbor-Ypsilanti Area Chamber of Commerce, spoke on behalf of that organization, which had completed a merger between the two cities’ chambers that very same day. He expressed opposition to the proposal to eliminate time frames from the current review process and to replace them with “reasonable time” parameters. The objections were based on two considerations, he said: accountability and certainty. The vagueness and murkiness of the language was not adequate to hold the bodies accountable, he contended. The lack of a quantifiable standard could result in a lengthier, more burdensome review process.

Kyle Mazurek, vice president for government affairs with the Ann Arbor-Ypsilanti Chamber of Commerce, speaks to the planning commission in opposition to dropping specific time parameters from the city's approval process.

The uncertainty would also create a major deterrent for developers to invest in the community, create jobs and help grow the tax base. Rather than create uncertainty, Mazurek said, the city should seek to expedite the current review  process. He reminded the commission that previously when the proposal had come before the planning commission, they had been “concerned that the proposed language did not offer any assurance to petitioners that their petitions would be acted upon in any reasonable time.” He said that the chamber did not see how the current proposal addressed that concern.

Mazurek said that he could reasonably argue that in the past, Ann Arbor’s review process had been influenced by political considerations. He was concerned that the reasonable time standard would only exacerbate the role of such considerations in projects moving forward. He suggested that if modifications were needed, then an incremental change should be explored, instead of an outright repeal.

Brad Mikus echoed the sentiments of Mazurek and Rein. If there was a problem completing review within the current time frame, he suggested that the time frame be increased. Concerning the proposed language, he asked, “What’s ‘reasonable’?”

At the conclusion of the meeting, Jim Mogensen put the timeline issue in the context of future staffing conditions. Five years ago, he said, there were more projects and more staff. Now there are fewer projects and fewer staff. In another five years, he said, there will hopefully be more projects – but fewer staff. Staffing levels would have an impact, he suggested, on the ability to meet deadlines. One of the possibilities that had been considered in the budget process for this year, he said, was the idea of outsourcing the planning function. He cautioned the planning commission against that, as he’d cautioned the city council against that approach as well. There would be too many opportunities for conflict of interest, he said, with people involved in the approval process, who also might have other projects coming to the city for approval.

Time Parameters: Commission Deliberations

Throughout deliberations there was a lot of support expressed for dropping the automatic approval clause if the time parameters were not met.

Tony Derezinski, who also represents Ward 2 on city council, said he was one of the people who had raised concerns about the language the last time the planning commission had reviewed the issue. He said he still had those concerns. They were essentially the same concerns as expressed by Rein and Mazurek, as well as conveyed in a letter from developer Dan Ketelaar. Said Derezinski: “It is a worry.”

Derezinski said that making the allowable time longer is justified, especially in the case of complex projects. He was interested, therefore, in knowing how long the review process currently took. Wendy Rampson said that as part of the A2D2 downtown rezoning process they had reviewed the time it had taken for site plans and rezoning just for the downtown area – not citywide. The time period covered was from the year 2000 forward. [.pdf of the review for process times]

Based on those projects, Rampson said any of them that had zoning already in place ranged between three and five months. Projects that involved a planned unit development (PUD) rezoning were substantially longer. One of them took a year and a half, she said. For those that have taken an extraordinarily long time, she said there had been a mutual agreement between the planning commission or the city council and the petitioner to hold off making a decision.

Derezinski asked what the usual pattern was in cities across Michigan – are there time frames in the ordinances? Rampson said that she could not speak to that issue and that Kevin McDonald of the city attorney’s office and Alexis di Leo of the planning staff had focused on the language of the state enabling legislation, she thought. Reacting to the suggestion that some of the public commenters had made to try a longer time frame instead of getting rid of the time frame together, Derezinski said he would be willing to try the “reasonable” standard as long as it’s tracked for a year to see how long it actually takes for a review process. Lawyers are used to the “reasonable man” standard, he said.

Evan Pratt also asked about the average time frame for current review processes. He wanted to know what the “on switch” was for starting the clock. Was it the completed application? Rampson said they measured from the date of application until the final approval. Pratt suggested that one thing the commission would like to see is petitioners coming to the planning commission for pre-application meetings. If complex issues could be raised before the clock started to tick, he said, it would minimize the time it takes. It was important, he said, to get all the issues on the table prior to the project coming before planning commission and city council.

Pratt said that things that have deadlines seem to get done sooner than things that don’t. He wondered if it’s possible to figure out what the current practice is and write that down, in terms of time frames that could actually be met. “My garden doesn’t have a deadline and there may be no corn this year,” he joked. He came back to the idea that pre-petition meetings with a working session would be a good idea.

Jean Carlberg said in her experience, it was unusual for a review process to take more than one extra meeting of the planning commission. She allowed that she understood developers’ fear about there being delays, but that recent experience did not support that fear. Everyone had an interest in moving projects through the process. Wendy Woods echoed Carlberg’s sentiments.

Erica Briggs said she shared concerns about the lack of definiteness and wondered if time periods of different lengths had been entertained. She said she supposed there had been good reasons for inserting the time periods into the code in the first place. Rampson responded by telling Briggs she had not been part of the review of the ordinance when it took place a year ago. [Rampson recently moved into the planning and development area from systems planning.] But she said there was a reluctance to set time frames generally – getting items onto the council’s agenda, she said, was a lengthy process.

Derezinski suggested an amendment that would require the tracking of the time it took for various projects to make their way through the process. That tracking would take place over the course of a year and then there would be a report back to the planning commission and the city council.

Pratt wanted to know how well the city was performing against the current standard. He asked, “What is the problem? What are we trying to fix?”

Derezinski’s amendment requiring that performance be tracked for a year was unanimously approved.

Pratt came back to the issue of understanding why the revision to the ordinance was being examined. “Why are we doing this?” he asked. He argued for delaying consideration until they had a clearer understanding of that. However, he did not move for a postponement.

Carlberg characterized any specific time frame as “arbitrary.” Either body – the planning commission or the city council – could always vote to extend the deadline anyway, so it’s effectively not a deadline. The commission always gave it their “best shot,” she said, and setting a specific time created an “unrealistic expectation.” It was more realistic, she said, to say that they would move as fast as they could.

Kirk Westphal, responding to Carlberg, said he would like to think the way she described things held true. However, he understood the fear that removing a schedule could mean things get slower – there’d be no schedule to check against. Westphal expressed some concern about what “best practices” were across other communities. He felt he needed more information to make that call, because there were issues of perception related to whether Ann Arbor was business-friendly. Perception of communities as business-friendly, he said, played a role in how people allocated their investments.

Briggs said she would like to see all the cross-community comparisons done, but recognized that the city’s planning staff had limited resources.

Westphal suggested that he’d be comfortable passing the recommended revision on to the city council with some kind of cursory review before the council voted on it – 5-6 phone calls and a couple of hours, to gather information about what other communities are doing.

Rampson indicated that Kalamazoo had no time limits and made reference to the collaboration of all parties, but said that the language was too broad for this particular ordinance revision.

Woods said she’d feel okay sending it to the city council – some projects would simply take “forever,” no matter what, she said.

Eric Mahler, an attorney, stressed he was not offering a legal opinion on behalf of the city. But he said that it’s always better to have certainty than uncertainty. There was a vested interest, he said, in handling things in the most expedient way possible. He said it would be nice to see a legal memo that explicated what “reasonable” meant. He was concerned about the legal risks that the term might pose. However, he said given that the city attorney’s office had reviewed it, he assumed that any risk had been properly assessed.

Mahler said he was not concerned with the planning commission as it was currently composed, but rather with the fact that the body would change in the future. But he also allowed that the world might be very different 30 years from now or 50 years from now, and the flexibility of “reasonable time” might be appropriate.

Outcome: The planning commission recommended that time limits be removed from the city’s zoning code about review of area plans, site plans, plats, and planned project petitions – to be replaced by a standard of “reasonable time.” The automatic approval for failure to act within a prescribed time was recommended to be dropped. The motion was passed with Derezinski’s amendment on one-year tracking.

Technical Revisions – Availability of Plans

At the planning commission’s previous meeting, on May 18, 2010, the group had recommended another technical revision to the city code addressing the requirements of the city with respect to the way that petitions are handled.

Currently, the city’s code on the approval process requires that up-to-date drawings for site plans be available in the lobby of the city hall 24/7 for a week before public hearings. The proposal recommended by the planning commission would relax the code by deleting the 24/7 requirement and by making clear that there’s not an obligation to continually update the material with any changes that might be made. Material recommended to be deleted is struck through, with proposed added language in italics.

5:135. Public information and hearings.

(2) Area plans, site plans, site plans for Planning Commission approval, PUD site plans, and preliminary plats and land divisions under review shall be displayed in a publicly accessible location in City Hall open to the public 24 hours per day, 7 days each week, for at least 1 week prior to the City Council and Planning Commission public hearings. Plans shall be current at the time of placement and subsequent revisions, if any, shall be available in the planning offices.

This code requirement has factored into the review of a project in the city’s recent history – City Place.  The current version of that project – called Heritage Row – is coming before the city council for approval at its June 7, 2010 meeting.

Back in the summer of 2009, City Place came before the city council, but was remanded back to the planning commission, due in part to errors the city had acknowledged involving the public information requirements of the city code.

From the text of the June 15, 2009 city council resolution that sent the project back to the planning commission [emphasis added]:

Whereas, Upon investigation, city staff have determined that there were errors and inconsistencies in site plan documents presented to the city planning commission and available to the public for review prior to, during and after the planning commission’s consideration of the city place site plan on April 21, 2009; and

The specific issue with City Place was called to the attention of the city attorney’s office by Ann Arbor resident Tom Whitaker, and the city attorney’s office was reminded of Whitaker’s objection by his legal counsel, Susan Morrison. From a May 27, 2009 letter sent by Morrison:

As described below by Mr. Whitaker, the site plan drawings on display in the City Hall lobby prior to the April 21 st Planning Commission public hearing did not include subsequent amendments made by the petitioner that were acted on by the Planning Commission. In a letter to the Mayor, City Council, Planning Commission members and other staff dated May 13, 2009,  Mr. Whitaker stated:

The drawings on the table in the lobby of City Hall were not, as of yesterday [5/12/09], are still not the actual ones reviewed and acted on by Staff, City Planning Commission, and soon-to·be, by City Council. Because the public cannot access the planning department files after business hours, the public did not have access to these site plans 24 hours per day, one week before the Planning Commission meeting, as required. The drawings in the lobby are original submittals that were changed rather dramatically by the petitioner prior to final Staff review and Planning Commission action. One of the drawings reviewed and included in the CPC packet (showing a newly-added accessory building) was not even completed by the architect until 4/15/09 – just six days prior to the hearing – a violation on its face.

Had the now recommended changes to the city code been in place back in 2009, the errors and inconsistencies cited by Morrison and Whitaker, and acknowledged by the city, would not have existed.

In the city planning staff report recommending the change, one reason given is the practical challenges of meeting the standard:

Given recent security changes to City Hall, this strict standard is virtually impossible to achieve and leaves the City vulnerable to procedural challenges. After normal business hours, and particularly in the overnight hours, there may be instances when City Hall is not open to the public. There have also been times during the normal business day (such as the recent closure of City Hall for 2 hours for an all-employee meeting in January and a 36-hour closure in April due to elevated carbon monoxide levels) when the building was closed to the public.

The staff report also cites the increased prevalence of high-speed telecommunication technology – among private citizens as well as through the public library – as a reason for recommending the change. For commentary on the issue, see a previous Chronicle comment written by Tom Whitaker: [link]

Planning Commission Work Plan

In its other business, the commission approved its work program for the year. Highlights include work on master plans:

• Corridors (1-Washtenaw, 2-State, 3-Plymouth, 4- N. Main)
• Master Plan – Land Use Update
• Master Plan – PROS (Parks, Recreation & Open Space) Update
• Capital Improvements Plan
• Connector Feasibility Study – State, Plymouth
• Sustainability Study
• Allen Creek Greenway Plan
• Huron River Impoundment Plan

Also on the planning commission’s work plan is a review of various ordinances:

• Minor Zoning Text Revisions
• Downtown Zoning A2D2
• Downtown Design Guidelines
• A2D2 Floodplain Ordinance
• Area, Height & Placement
• R4C/R2A Study
• Citizen Participation Ordinance
• Sign Ordinance amendments
• Zoning Ordinance Re-Organization (ZORO)

Outcome: The planning commission approved its work program for the year.

Environmental Coordinator: State of the Environment

Matt Naud, the city’s environmental coordinator, gave a presentation to planning commissioners on the city’s environmental indicators. They are based on 10 environmental goals set by the city council. Naud’s presentation to the commission was a follow-up to a recent joint meeting of the environmental commission, the energy commission, and the planning commission on sustainability. [Chronicle coverage: "Building a Sustainable Ann Arbor" See also The Chronicle series on environmental indicators.]

Matt Naud, the city's environmental coordinator, presents the city's environmental indicators to the planning commission. At left is Wendy Rampson, head of planning for the city.

Naud  reviewed with the planning commission how the city’s State of the Environment report had been developed by the environmental commission originally in 2000. In that year, it was a 10-page report. In 2004 it had become a 100-page report. And at that point, the city realized there was so much information that needed to be included that it should be a web-based document. It would be a living document that can change.

The report is now organized, Naud said, around large goals like clean air and clean water and mobility – significant goals that will take a while to achieve. Within those goals are specific objectives that correspond to 60 different environmental indicators. Questions from planning commissioners drew out the fact that there is a difficulty in measuring certain areas because they depend more on regional factors than on things local to the city of Ann Arbor. One example is air quality – there is an Environmental Protection Agency air-monitoring site in Ypsilanti that is used. But Naud said the real determinant of air quality depends on what kind of air is coming from Chicago and Grand Rapids – “their air comes our way.”

During public commentary, Brad Mikus told the commissioners that last week he was at the environmental commission talking to that body about planning issues, so he figured this week he might as well be at planning commission talking about environmental issues. He told commissioners that a couple of years ago, the city had put in a new park – Mary Beth Doyle Park. There’s a big detention pond there, which fills up and then slowly releases water into Malletts Creek, he told them.

The idea is that it’s supposed to help remove phosphorus and other pollutants. Mikus told the commission that it was a really nice park and that there will be a volunteer work detail on June 5 to help with park maintenance – he encouraged them to come. With respect to the state of the environment report, he wondered if people use it simply as a report or if they use it as an action tool. For example, do people focus energy on those indicators where we’re currently doing poorly? Or do they focus resources on those areas where we are doing well, reasoning that we’re actually able to have an impact on those areas. He also wondered if the planning commission could suggest to developers that they use more environmentally friendly design, by citing the report.

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

Absent: Bonnie Bona.

Next meeting: The planning commission next meets on Tuesday, June 15 at 7 p.m. in city hall council chambers, 150 N. Fifth Ave. [confirm date]

A sign opposing property rezoning in Superior Township. (Photos by the writer.)

It’s evident in words like those on a banner in the township hall touting a commitment to preservation. It’s evident in actions like voter approval of a special tax to defend the community’s growth-management plan.

But for all the agreement, there’s discord over the means to that end.

Rather than fighting a lawsuit they say they expected to win, township officials have struck a deal with a development group that sued after a zoning change was denied.

Disappointed residents say the settlement bails out the developers, and is a retreat from a strategy of enacting and defending a strong master plan and zoning. Township officials say buying land and development rights – as the $400,000 settlement deal will do – is the only sure way to end the battle for good.

The real goal isn’t a legal victory, but the conservation of the community’s rural character, says township supervisor Bill McFarlane. “I feel we would have won the lawsuit this time, but land values will eventually go up again and we could be fighting this again in a year, or two years or five years.”

The Background

The property at issue is a 77-acre parcel on the northwest corner of Prospect and Geddes roads.

It’s a corridor that Ann Arbor’s greenbelt program, Washtenaw County’s natural areas preservation program and the Southeast Michigan Land Conservancy have all invested in, buying land or the development rights to hundreds of acres of property. Zoned agricultural, the land is also subject to the township’s prohibition on extending water and sewer service north of Geddes Road.

Developers sought a zoning change and proposed a privately operated sewage-treatment system to serve a planned 236-home subdivision. After the zoning change was denied in 2007, the limited-liability companies holding the land filed suit.

Citizen activists, township officials and the lawyer representing the township in the lawsuit all say the defense was solid.

“We had a watertight defense and were going to win in court,” says Jan BenDor, who worked to organize opposition to the settlement.

McFarlane and Fred Lucas, the attorney handling the township’s defense, say they, too, were confident.

Nevertheless, township officials opted for a settlement. Last week, they signed off on a multi-part deal that will end the 2008 lawsuit.

The Deal – and Reaction

Not final until authorized by the Circuit Court, the settlement will require the township to pay $100,000 to purchase a conservation easement on 40 of the 77 acres. In addition, Superior Township will pay $300,000 to acquire an 8.1-acre chunk of the land at the corner of Prospect and Geddes roads. Township officials will set that parcel aside for the future construction of a new fire house. [.pdf file of map from consent agreement]

The deal further OKs new business activities on the remaining 28.5 acres.

That provision, which is expected to result in the construction of a feed store and warehouse along Prospect Road, is among the more controversial components of the settlement. Reaction was strong, and at a Jan. 19 public hearing on the settlement, as many as 100 people piled into the township hall to voice their views on both sides of the issue.

Matt Schuster was among the residents unhappy with the plan. Neither the fire station nor the feed store are appropriate under the zoning or master plan that community members have worked hard to create, he told township officials.

“This doesn’t support our long-term goals,” he said, earning a chorus of “amens” from like-minded neighbors.

Fewer than 30 of the citizens who attended the hearing spoke. Those with objections or concerns slightly outnumbered those who backed the agreement set forth in a consent judgment. [.pdf file of agreement]

Some, like Schuster, objected to provisions of the settlement. Others focused on the the broader decision to settle.

Voters, who in 2006 approved a special tax to defend the township’s growth-management plan, expected to see the case litigated to a successful judgment, said Jan BenDor in an interview. Instead, she said, their dollars are “bailing out” developers.

BenDor – and others who spoke at the hearing – argue that a settlement invites future litigation.

Fred Lucas of Lucas and Baker in Onsted – who’s handling the case for the township – disagrees. “We’ve fought other suits and won, but that hasn’t deterred litigation,” he said.

Supporters of the settlement included those who favor setting aside land for a fire station. (The $300,000 for that purchase will come from a fire department building fund.)

Other supporters voiced enthusiasm for the provisions that will allow a feed and agriculture supply store. But homeowners close to the property targeted for the business had a different view.

Dennis Donahue, standing at right, spoke at the Jan. 19 public hearing about a proposed lawsuit settlement between Superior Township and developers.

Neighbors to the west voiced concerns about potential water contamination from stored fertilizer products at a feed store. Dennis Donahue, whose home would be nearest to the planned business, objected to the prospect of semi-trailer trucks and commercial activity that’s prohibited under the existing agricultural zoning.

“If having a feed store is appropriate, then our zoning should be changed to allow it,” Donahue said at the hearing, rebutting arguments that such an operation supports the community’s interest in preserving agricultural land use.

The zoning for the feed store parcel will not technically change. But, once-approved, the terms of the consent agreement will trump zoning and planning rules. That amounts to “spot zoning,” said critics, or “zoning by contract.”

The terms of the consent agreement are enforced by the court. They can only be altered if the  parties bound by the settlement – at this point, the township and Hummana LLC and NYR2 LLC – agree.

Hummana and the second limited-liability company are entities created by the real-estate interests that purchased the acreage for a proposed residential development. The Farmington Hills-based Friedman Real Estate Group is among the Hummana partners.

Commercial Activity

The feed store parcel includes an existing equestrian facility. Originally built by the Donahue family, it will operate as a public stable. The terms of the consent agreement allow additional structures, but limit uses and the total square footage on the parcel.

Hummana expects to sell that piece of property to Michael Schofield, who’s run an agricultural supply store on Whitmore Lake Road.

Lucas said that it’s true there’ll be a change – the township doesn’t allow commercial activity there now. However, the existing zoning would permit construction of one residence on every two acres. That’s potentially far more development, he said, as well as development that would affect the rural character of the Geddes-Prospect area.

Township residents critical of the settlement say there’s little chance of residential development anyway. The clay soil in the area is unsuitable for septic fields, said BenDor.

McFarlane’s more cautious: “Eventually someone will want to build there again. The only way to make sure the land isn’t developed is to own it or tie it up with an easement.” A conservation easement is an agreement that puts restrictions on property, such as preventing dense housing developments.

Sagging property values, which allow the township to spend less to acquire or protect land, present the opportunity to prevent development, he said. “And we have to do what’s in the best interest of the entire township.”

McFarlane also countered assertions about the intended use of revenue from the special tax passed in 2006. It was meant to be used for a variety of activities that would support the master plan, he told The Chronicle. “That includes purchasing land or easements. It’s not just a legal defense fund.”

The $100,000 to buy the conservation easement will come from that fund.

Land Preservation

Township officials had hoped to have partners in acquiring conservation easements.

A sign marking the LeFurge Woods Nature Preserve in Superior Township.

Clerk David Phillips said they approached officials at the Southeast Michigan Land Conservancy, Washtenaw County’s natural areas preservation program and the Ann Arbor greenbelt program. All three have holdings nearby, including the conservancy’s LeFurge Woods Nature Preserve on the northeast corner of Geddes and Prospect. [Map of Superior Township's preserved land.]

With help from one or more of the land-conservation programs, it should have been possible to draft a settlement that didn’t include a commercial component, said Phillips. “We could have conserved more land.”

But the relatively short timeline and the nature of the property worked against it, and all three groups declined to participate.

Each program has its own criteria and focus. For example, the county program buys largely natural areas, Tom Freeman, who leads the program, told The Chronicle. Although some parcels have included a portion of agricultural land, the bulk of the properties are natural, he said.

For its part, the conservancy wasn’t able to respond as quickly as needed, said executive director Jill Lewis. The group was asked to participate in a predefined way that wasn’t a good fit, she said. Lewis declined to elaborate and the conservancy opted not to take a public position on the consent agreement.

“We’re not involved and we don’t think it’s a good idea to take a position other than we are in favor of land protection in the township and the 7-county southeast Michigan region,” Lewis said.

When the township failed to come up with additional funding to create a larger conservation easement – and boost the payout to Hummana – the company opted to slice off and sell the 28.5 acres with the stable, Phillips said.

McFarlane still holds out hope that a conservancy group may accept the conservation easement that is being secured. “It would tie the land up more and reduce the chance that a future township board would undo this,” he said.

But he’s satisfied that township officials have made the right decision for the long term, even though there’s some discontent today. “You can’t make everyone happy. I think about 25% are unhappy about this.”

“It’s a balance,” said McFarlane, “between what we’re getting and what we’re giving up.”

As for giving up on what some considered a bulletproof land-use plan: “I can sue you for anything,” Lucas said at last week’s hearing.

The plaintiff’s damage claim is “iffy at best,” Lucas said. “But you can never guarantee a result and if you succeed, nothing prevents another owner or developer from seeking rezoning again.”

About the writer: Judy McGovern lives in Ann Arbor. She has worked as a journalist here, in Ohio, New York and several other states.

Council voted down the more general prohibition on new development in R4C/R2A residential districts, but approved the historic district study committee with its attached moratorium on demolition. It’s a case where the vote tally alone doesn’t tell the whole story – or even an accurate one: Counter to what one might expect, Mike Anglin (Ward 5) voted against the R4C/R2A moratorium, while Leigh Greden (Ward 3) voted for it.

A third major agenda item facing council was also related to new development: the Near North planned unit development (PUD) proposed for North Main Street just south of Summit Street, which is an affordable housing project that includes the nonprofit Avalon Housing as a partner. The council voted to move Near North on to a second reading, when a final decision will be made.

But probably the most important matter considered by council on Thursday appeared on the agenda as an “introduction” by the city’s chief financial officer, Tom Crawford, who spent around a half hour telling the city council why the city’s projected financial condition is worse now than it had been when the FY 2010 budget was adopted in the spring. Crawford’s presentation was characterized during commentary from the public later in the meeting as the “first salvo in a PR campaign” for a city income tax.

A bit of breaking news from Crawford’s report: bonds for the Fifth Avenue underground parking garage were issued on Aug. 5.

Revenue Projections: Report from the CFO

The city’s CFO, Tom Crawford, started his update by acknowledging that oftentimes speakers begin their remarks with a joke, but he said, “There is no joke tonight.” He then spent the next half hour not joking.

There are some national-level reports with glimmers of hope that the economy is starting to turn around, Crawford said, like the fact that stocks are starting to climb. But the glimmers are based primarily on the fact that the measurables are not declining as fast, he said.

What we confront locally, Crawford said, is grim: June unemployment figures for Ann Arbor and the state of Michigan are 10.6% and 15.2%, respectively. Part of the impact of high unemployment levels is that people spend less money – that causes state sales tax revenues to decrease. So far this year, state sales tax revenues are down 8%.

Sales Tax and State Revenue Sharing

What does state sales tax have to do with the city of Ann Arbor’s budget? Part of the sales tax collected by the state of Michigan is allocated to municipalities like Ann Arbor through “state revenue sharing.” That state revenue sharing has two components: (i) a constitutional part based on a fixed formula, and (ii) a statutory part over which the state legislature can exercise discretion, depending on state budget needs.

Queried by Carsten Hohnke (Ward 5) about possible changes in the two kinds of state revenue sharing, Crawford clarified that both kinds of state shared revenue would go down as a function of the 8% year-to-date decrease in sales tax revenues. That’s because the total amount of sales tax revenues determines the “size of the bucket” from which both types of shared revenue are taken. The statutory share could go down even further, Crawford explained, because the state legislature showed no signs that the resolution to the state’s budget issues would be addressed – the state currently shows $9 billion in expenses compared to $7 billion in revenues. Part of the $2 billion gap is expected to be covered with state sales tax money that would have otherwise gone to municipalities through state revenue sharing.

How much money are we talking about? And what has been the historical pattern of state shared revenue? In 2002 the city of Ann Arbor received $6.2 million in statutory state shared revenue and $7.5 million in constitutional state shared revenue. In FY 2009 those totals had changed to $2.9 million and $7.9 million, respectively – roughly a $3 million decrease since 2002.

Projections on which the adopted FY 2010 budget were based saw state shared revenue levels as flat compared to last year. Based on the actual 8% drop in sales tax collections, plus a pessimistic assessment of likely action by the state legislature to address its own budget, Crawford is now projecting $1 million to $1.9 million less in state shared revenue in FY 2010.

Added with $1 million less than projected in investment income, $0.2 million less in traffic citations, and $0.2 million less in development review fees, Crawford sketched a picture for councilmembers of a $2.4 million to $3.3 million shortfall for FY 2010, which is the current budget year. For next year, continued decreases in state shared revenue, traffic citations, and development review fees, together with a yet-to-be renegotiated parking agreement that assumes $1.7 million to be paid to the city by the Downtown Development Authority, led to a possible projected shortfall of $4 million to $5.8 million, said Crawford.

In terms of percentage of the budget, those shortfalls translate into 3-4% and 5-7% deficits for FY 2010 and FY 2011 respectively. In terms of people, it translates into 24-40 full-time employees for the first year, and 50-70 in the second year, whose salaries would not be covered.

New Reality

Declining property tax revenues did not factor into the slides Crawford showed councilmembers explaining why the forecast had become more grim since they had adopted their budget for FY 2010 in May. Why not? While property tax revenues continued to decline, Crawford said, so far this year they were tracking as they’d been forecast.

Still, factors other than property taxes had led to Crawford’s conclusion that, “We’re looking at a new reality.” Part of that reality was, said Crawford, that the city would be facing the prospect of service reductions. Whereas in the last decade, the reduction in staffing levels – from around 1,000 in 2001 to around 800 in 2009 – had been achieved through greater efficiencies, without reducing services, this next cycle could be different.

Councilmember Questions

Mike Anglin (Ward 5) wanted to know what the impact of the early-out police retirement incentive had been, which the council had authorized in the spring. [There had been 34 officers who qualified for the program and based on a June 30, 2009 memo from Crawford, 26 of them had elected to accept the incentive, with the possibility that two additional officers might also accept because they'd been given a deadline extension for the decision.] In responding to Anglin, Crawford indicated that the cost of the buyout had been around $5 million, which had been paid out of the city’s reserve.

Anglin wanted to know what the effect the reduction of the reserve from around 17% of expenditures to around 10% had had on the city’s bond rating. Crawford indicated that the city’s 10-11% reserve fell within the policy range of 8-12%. Further, Crawford said, the city had been given a rating of Aa2 the previous day, when they had issued the bonds for the Fifth Avenue underground parking structure.

Tony Derezinski (Ward 2) asked what other programs might exist at the federal level to help cities. Crawford said that he was not aware of any that might be relevant, and stressed that to date the federal stimulus package dollars that had been approved did not address needs that are related to recurring operations.

Derezinski inquired to what extent collaboration with other government entities was being explored – Ypsilanti and the Ann Arbor Public Schools, for example. Crawford said that in the IT department there were three different projects he was working on in collaboration with Washtenaw County. As a matter of philosophy, Crawford explained, whenever any issue comes up, possible collaborations are considered. City administrator Roger Fraser stressed that no two public sector organizations do business the same way, which meant that a desired collaboration might not happen today, but rather could be realized one to two years down the road. Fraser pointed to the new sheriff, Jerry Clayton, as “a major turn for the positive” in terms of the potential for collaboration with the county.

Christopher Taylor (Ward 3) asked when council might be provided with “some species of articulation” for the kind of decreases in services they might be looking at. Crawford deferred to Fraser on the question. Fraser stressed that the forecast reflected a “probable case.” He said he continued to stress that managers of departments needed to make cost reductions a priority. In September, Fraser said, the exact picture would be clearer.

Moratorium on New Development in R4C/R2A

The proposed moratorium on new development in R4C/R2A areas had been brought forward by Mike Anglin (Ward 5) at the previous council meeting, when it had been postponed. The key resolved clause of the resolution submitted by Anglin read: “That City Council hereby imposes a moratorium on all new development that requires site plan approval, expansion of existing development that requires site plan approval, zoning changes, special exception uses, or other comparable zoning items, in the R4C and R2A zoning districts … ”

The idea of a moratorium had been mooted at planning commission at least as far back as April 2009. [See previous Chronicle coverage.] Several speakers at public commentary voiced their support for a moratorium.

Moratorium: Public Commentary

Mozhagn Savabiesfahani: Savabiesfahani was signed up under public commentary reserve time to speak to the issue of the moratorium on new development in R4C districts. She began by thanking the city’s CFO, Tom Crawford, for the grim presentation on the city’s economic outlook. If the state of Michigan needed $2 billion dollars to make up a budget shortfall, she suggested, then the U.S. should think about getting back the $300 billion in aid that it had given to Israel. She then called on the council to stop the demolition of the seven houses on South Fifth Avenue where the City Place project is proposed to be built. She said that her response to a friend who asked her why she cared about those houses was this: If you destroy history anywhere, you’re destroying history everywhere. So she was opposed to the erasure of history locally, just the same as she was opposed to it in the Middle East.

Susan Morrison: Morrison introduced herself as a resident and an attorney speaking on behalf of several individuals who are members of the Germantown Neighborhood Association. She urged the adoption of the temporary moratorium on new development in R4C zoning districts. She noted that courts have upheld the validity of moratoria, and contended that the need for a moratorium is evident, given that the goals and recommendations of the Central Area Plan had not yet been implemented in the zoning code. As a legal matter, she said, there is no question that the moratorium would be considered a reasonable one. No one could argue that it’s been a sudden or rash decision, she said, given the long history of discussion throughout the community.

Marvin Bartlett: Bartlett urged the council to adopt the moratorium on new development in R4C districts. He read aloud a poetic effort, that went by too quickly for The Chronicle to capture in any significant part. It included the line, “Disarm the developers, please!”

Claudius Vincenz: Vincenz offered council a compliment for their rapid turnout on consideration of the moratorium. He asked that the moratorium include a prohibition against demolition, because it’s easy to “create facts on the ground.” He also asked that the council not exempt PUD site plans from the moratorium, saying that such an exemption would introduce new dynamics in the play and counter-play between developers and residents. Such an exemption, he said, would change the dynamic from “little league” matter-of-right developments to “big league” PUDs. He drew an analogy of having a flat tire while driving on the highway – instead of stopping and fixing the problem, an exemption would be like deciding to slow down to 10 mph but keep going. Addressing the historic district study committee, he argued that the boundaries should not be defined by artificial lines on a map, but should be based on the natural topography. That meant that the area should go down to Madison Street, which is the beginning of the flood plain, and not stop at Packard Street.

Moratorium: Council Deliberations

Mike Anglin (Ward 5) began by emphasizing that the resolution provided protections for people who wanted to do work on their homes – only those projects requiring site plan approval would be subject to the moratorium. Referring to the R4C/R2A study committee, which would be appointed the same night, he said that the moratorium would allow time to “get our house in order.” The study committee will provide the city council with a report and recommendations for potential ordinance changes in R4C/R2A zoning districts.

One basic premise of the moratorium is that while revisions to the zoning are being considered, no development should take place, to prevent a rush of proposals that aim to avoid compliance with any new changes that might be proposed.

Christopher Taylor (Ward 3) indicated that he was supportive of the notion of a moratorium, but wanted to propose a total of four amendments. We’ve indicated those amendments by red-lining strikethroughs and blue-facing additions:

RESOLVED, That City Council hereby imposes a moratorium on all new development that requires site plan approval, expansion of existing development that requires site plan approval, [Amendment 3; see also below] zoning changes, special exception uses, or other comparable zoning items, in the R4C and R2A zoning districts [Amendment 1] within the Central Planning Area, and that any petitions or permits for such items be deferred for a period of [Amendment 2] 180 365 days from the date of this resolution in conjunction with the study and revision of the zoning ordinances pertaining to these districts, with the following exceptions:

• Approval of development, redevelopment, or the issuance of building permits for projects that do not require an approved site plan, including but not limited to construction of or addition to one single or two-family dwelling or accessory structure on a parcel;
• [Amendment 3] Petitions for Planned Unit Developments (PUDs) and PUD site plans;
• [Amendment 4] The following petitions that have been accepted by the City for review prior to the date of this resolution and are under review by the City:
  
  1. City Place Site Plan
  2. Casa Dominick’s Revised and Expanded PUD Zoning District
  3. The Moravian PUD Zoning District and PUD Site Plan;

Anglin accepted the first two amendments as friendly to his resolution, saying they dealt with timing and geographic scope and were thus “non-substantive.” The third and fourth prompted a longer council discussion.

Council first handled Amendment 3.

In response to a question from Margie Teall (Ward 4) about why the PUD site plans would be exempted, Taylor argued that the rationale for the moratorium was to give the city an opportunity to align the zoning with the master plan, and that affected specifically “matter-of-right” projects. PUDs inherently did not follow existing zoning, and their approval “rises and falls not by right,” said Taylor, but by a separate ordinance – an ordinance that is not currently under review by any study committee.

Taylor did allow that a PUD was in a way tied to the nature of the prevailing zoning where a PUD was proposed – the prevailing zoning acted as a foil to establish whether or not a proposal required a PUD rezoning.

Sabra Briere (Ward 1) contrasted the experience of councilmembers in reviewing PUD proposals with that of neighborhoods who opposed them. For councilmembers, she said, it was always intriguing to see how well planning commission, planning staff, the developer and the public had done their respective jobs, and that it was an enlightening and rewarding experience. For the neighborhoods, however, she felt like it was merely frustrating. She compared the idea of imposing a moratorium, but exempting PUDs, with offering a carrot but hitting the neighborhoods with a stick, too.

Carsten Hohnke (Ward 5) indicated that he’d gotten to a place where he was not inclined to be supportive of a moratorium – the downside was the perception that the city was changing the rules in the middle of the game. But he said that he’d support the amendments because they would lessen the city’s legal exposure. Responding to Briere’s comments, he said he appreciated her concern about the neighborhoods feeling threatened, but said that a moratorium wouldn’t have an effect on what could eventually wind up being built.

Tony Derezinski (Ward 2) echoed some of the same sentiment as Hohnke in not supporting the overall idea of a moratorium, but supporting the amendments. This was consistent, he explained, with the legislative role of “making something bad less bad.”

Stephen Rapundalo (Ward 2) said he supported the sound logic that Taylor had used, saying that a PUD is a customized form of zoning that gave the council great discretion.

Anglin weighed in against excluding PUDs from the moratorium, saying that they reflected a radical change to a neighborhood. Rapundalo objected to the way that Anglin had characterized PUDs, saying that Anglin implied that PUDs were inherently bad and negative. It does a disservice to the PUD designation, said Rapundalo, to suggest they’re all bad.

Mayor John Hieftje posed a hypothetical: What if the study committee finished its work in two weeks? Then anyone would still be free to bring a PUD proposal forward next week. [This seemed to be a different way of making the same point that Hohnke had made earlier – for a PUD, there'd be no material effect on what could eventually be proposed.]

A discussion ensued about whether amendment 4 was in part redundant – if amendment 3 meant that all PUDs were exempt from the moratorium. The city attorney and staff were called on to interpret. Marcia Higgins (Ward 4) asked if it might not be possible to find wording that didn’t require the interpretation of the city attorney. The word “all” was inserted into amendment 3, with councilmembers indicating that they would delete the specific reference to Casa Dominick’s and The Moravian when amendment 4 was considered.

While the wording change and the plan to delete specific reference to two PUDs in amendment 4 seemed like a technicality, it appeared to change Briere’s mind about her vote. She said that the discussion had provided some clarity – it would be all PUDs that would be exempted, not just two specific projects.

Outcome: Taylor’s amendment 3 passed on a roll call vote, with dissent from Anglin.

With the change to amendment 4 to reflect only exemption of the City Place project (the other projects being subsumed under amendment 3 as PUDs), councilmembers focused their deliberations on that project. Hieftje led off by saying that a moratorium on development was not the best mechanism to apply to the City Place project, if the intent was to protect the houses there. Why not? The moratorium on new development did not include a prohibition against demolition. Plus, said Hieftje, a failure to exempt City Place provided some legal exposure for the city.

Briere prefaced her argument for exempting the project from the moratorium by saying, “I don’t think there are many people who think I love this project.” Briere then articulated a view that was echoed by many others: In postponing the City Place matter-of-right project at its previous meeting, the city council had made a commitment to the developer that he could bring it back with 35 days notice. If it were included in the moratorium, then that would reflect a failure to honor that commitment.

Sandi Smith (Ward 1) and Rapundalo echoed much the same sentiment. Smith stressed that it was dangerous to deviate from the predictability of the regulatory process when someone goes down a path in good faith. Rapundalo noted, “There are such things as property rights,” adding, “Let’s be honest – it’s an attempt to stop a development.” Rapundalo cautioned that it would send a very chilling message to the broader community that Ann Arbor is closed for development.

Deliberations seemed to be covering much of the same ground when Higgins called the question – a parliamentary move that forces councilmembers to vote immediately on whether to continue discussion of the current motion, which in this case was amendment 4. Hieftje at first mistakenly asked for discussion on the calling of the question – and had to appeal to the city attorney for help. There is no discussion that’s attached to the calling of the question, and councilmembers voted on whether to continue deliberations. Hieftje, Hohnke, and Anglin voted against cutting off deliberations, with their colleagues forcing a vote on amendment 4.

Outcome: Taylor’s amendment 4 passed with dissent only from Anglin.

For the resolution on the moratorium, even as amended, there turned out to be little support. So the first part of Smith’s statement as she opened deliberations seemed mistaken in hindsight: “I sense I may be in the minority, but I can’t in good conscience send a message to the rest of the world that we’re not interested in growth in our city.” She noted that as the other aspects of the city’s zoning had been reviewed, no moratoria had been needed. This last point later was echoed by Higgins and Hohnke.

Derezinski also echoed Smith’s view, adding that he was concerned about potential litigation. If the moratorium did, in fact, pass muster, he said, then it would be in a court – and that would be expensive. He recalled that when he practiced law he had “a wonderful hourly rate.” He then described the amended resolution as an attempt to “put lipstick on a pig.”

Anglin said that by amending the resolution, council had said to residents that if they came forward with cogent arguments then they didn’t really count and their rights weren’t protected. As amended, Anglin said, he was not going to vote for the resolution, either.

Rapundalo said that his concern with the resolution was: What is the specific protection for people that needed to be put in place? The amendments, he said, gave him some comfort that the risk of legal exposure was diminished and he was thus willing to support it.

Taylor said that there were some other areas of R4C/R2A zoning districts besides the one where City Place was sited that should be considered – on Church, Tappan, and Hill streets.

Teall said the amendments went a long way but not all the way. For her, the moratorium was too broad.

Hohnke also characterized the moratorium as too broad a tool, and the concern being addressed – the incompatibility of master planning with zoning ordinances – did not rise to the level of health, safety and welfare. In any case, Hohnke said, it would not prevent demolition.

Briere, for her part, said that the moratorium applied to a much wider area than what had been the focus, namely Germantown. The area of the moratorium, she warned, was large enough that the decision should not be made based on the emotion of City Place in Germantown. A moratorium was the wrong tool, she said.

Outcome: The moratorium failed with only Rapundalo, Taylor and Leigh Greden voting yes.

Historic District Study Committee

A resolution sponsored by Carsten Hohnke (Ward 5) and Marcia Higgins (Ward 4) to establish a historic district study committee was added to the agenda on the day of the council’s meeting. The council had considered a similar resolution in December 2008. One difference between the resolution the council considered on Thursday and the one it rejected in December was the inclusion Thursday for a moratorium on demolition in the study area.

Another difference was that the study area was considerably smaller:

… the area encompassing properties that abut the east and west sides of South Fourth Avenue and South Fifth Avenue, bounded by the East William Historic District on the north, and Packard Street on the south, and also including 209, 215, and 219 Packard Street;

Hohnke led off deliberations by reminding his colleagues that they’d considered something similar before, and that this time the area was smaller. The study committee could extend the boundaries for a recommended historic district, he said, if they thought it was appropriate to do so.

Tony Derezinski (Ward 2) said that the proposal raised a lot of intriguing issues, but given that it had just been added to the agenda that day, he had not had a chance to look at it. He thus moved to postpone the decision. Stephen Rapundalo (Ward 2) and Leigh Greden (Ward 3) supported Derezinski’s effort to postpone. Greden said he’d like to see a map. His colleagues pointed out that a map was included in the meeting packet.

Marica Higgins (Ward 4) said she was not in favor of a postponement. She noted that they’d said back in December 2008 they’d bring back a resolution if the proposed study area was smaller – it was smaller.

Margie Teall (Ward 4) and Honhke got clarification that the study committee had to be established first and then, at a separate meeting, the members appointed.

Mike Anglin (Ward 5) initially said that he was in favor of a postponement to expand the scope of the study area, but when it was clarified that the committee could recommend a wider area for establishment of a historic district than the study area, he was content to vote on it that night.

The clarification on the boundary issue came from Sabra Briere (Ward 1), who said she could not support a postponement based on the boundary issue.

Derezinski said that while he was glad that some councilmembers had had a chance to consider the proposal, he had not, because it had been sprung the same night. He contrasted the process for the moratorium on development in R4C areas, which had stretched over four meetings. Here, the council was being asked to make a decision in 10 minutes. He said he wanted to hear staff input. “I’m asking for 12 days [until the next meeting],” he said. Derezinski noted that while it was a similar proposal to the one council had considered in December 2008, it was not the same one.

Christopher Taylor (Ward 3), responding in part to Derezinski, weighed in against postponement. He noted there’d been a great deal of discussion on the point and that he considered it to be a subset of the previous proposal and thus felt adequately prepared to vote.

Mayor John Hieftje then reduced the talk to a very practical level: How long does it take to issue a demolition permit? The implication here was that a property owner who wanted to demolish a building within the study area might have enough time to accomplish that, if the council were to postpone the decision until its next meeting. Wendy Rampson, with the city’s systems planning unit, estimated that for a residential building it would probably take around two weeks, including the utility shutoffs.

Hohnke got clarification from the city attorney’s staff that a site plan is not tied to demolition. So the commitment the council made to the City Place developer to bring back the matter-of-right site plan with 35 days notice could still be honored.

Assessing the 12 days they’d have to wait until next council meeting and the estimated two weeks it would take to get a demolition permit, Taylor concluded: “That’s pretty close.”

Outcome: The motion to postpone consideration of the historic district study committee failed, with Smith, Derezinski, Rapundalo, and Greden voting for it.

Faced with the need to vote that night on the study committee, Smith criticized the proposal with its accompanying moratorium on demolition as “punitive.” She said that the council had set aside the City Place matter-of-right project, with the expectation that the PUD version of the project would be worked on as a part of the regulatory process – an expectation that would not be met with the creation of a historic district study committee.

Derezinski agreed with Smith, saying that it sends a “bad message.” He said it was “aimed at one project.”

Taylor Hohnke argued for the resolution he’d sponsored, saying, “This is within the rules of the game. It’s within our arsenal of options.” While he allowed that he was not sure if he would ultimately support a historic district for the area, Taylor Hohnke said he was eager to learn what the study committee had to say.

Hieftje was blunt in saying that the matter-of-right project was a “lever” in order to achieve a PUD down the road. The developer, Hieftje contended, was using every tool in the toolbox, and the establishment of a historic district study committee was a tool in council’s tool box.

Outcome: The establishment of a historic district study committee passed, with dissent from Smith and Derezinski.

Near North PUD

Near North is a planned unit development – as contrasted with a “matter-of-right” project. As such it does not conform to the existing zoning, and the city council’s role will be to assess whether the public benefit offered by the project is adequate to justify a rezoning so that it can be built.

The building, proposed for the east side of North Main Street just south of Summit Street, comprises 40 residential units (44 bedrooms total) to be built in a five-story apartment building with 2,950 square feet of commercial space and 1,645 square feet of office space attached to the building. Forty parking spaces would be provided below the building, with an additional 10 spaces not under the building.

All of the units are proposed to be affordable under Michigan State Housing Development Authority (MSHDA) standards, which target rents for income levels at or below 50% of area median income (AMI). In addition, 14 of the units are designated as “supportive housing” for individuals having no more than 30% of AMI.

Several people spoke during the public commentary reserved time at the start of the meeting – this was not the official public hearing on the matter. That will be scheduled when the proposal comes before council for a second and final reading.

Near North Public Comment Reserved Time

Bill Godfrey: Godfrey is a partner in Three Oaks Group, the team that is developing the Near North project. He stressed that the project consists of 100% affordable housing units. He also emphasized that the public engagement process had been extensive, which had included three design charettes and three planning commission meetings. That process he characterized as constructive and collaborative – one that had resulted in many changes to the design. He allowed that the 5-2 vote for the project by the planning commission was a recommendation for denial, but said that commissioner Craig Borum, who’d been absent for the vote, had indicated via email that he would have voted for the project, had he been present. Later, during council deliberations, Tony Derezinski (Ward 2) – who is the city council’s representative to planning commission and was also absent from the Near North vote – said he, too, would have voted for the project.

Kate Warner: Warner introduced herself as a retired University of Michigan urban planning professor, who’d previously served on the housing policy board, the affordable housing commission and co-directed the Washtenaw Affordable Housing Corporation. She said that in her 35 years of study and work to increase the supply of affordable housing, she’d rarely seen factors of land use and economics so well aligned as with Near North. Its moderate density, she said, made it appropriate for alocation in an “interface zone” between the neighborhoods and downtown, which is proximate to the pool of service jobs in the downtown that could employ residents. Its mixed commercial use component strengthened its economics, she said.

Mary Browning: Browning introduced herself as speaking on behalf of the Religious Action for Affordable Housing (RAAH). She reported that her son has an efficiency apartment with Avalon Housing and expressed her hope that the council would approved the Near North project, in which Avalon is a partner. She pointed out that the Delonis Center – the downtown homeless shelter – can only be successful if there is housing to which shelter residents can eventually move.

Michael Appel: Appel is the executive director of Avalon Housing. He emphasized that the 100% affordable nature of the project set an unprecedented high standard for affordable housing in PUD projects. The design with a mixture of uses and its density, he contended, were right for the location. The moderate density, he said, was not as high as the proposed D2 zoning district closer to downtown and not as low as the residential areas further from downtown. He concluded by saying that he knew they had not achieved the support for the project from the immediate neighbors, but that they would continue to listen and participate in dialogue.

Lisa Marra: Marra spoke in favor of Near North, saying that there was no doubt about the quality of services that Avalon would offer. Addressing concerns about the scale of the project, she noted that the neighborhood shows a variety of different scales and that the new building would have a positive impact on that mix of scales. Damian Farrell, the architect for the project, would not site the building poorly, she said. The North Main corridor, she continued, does not currently convey the spirit of the town, which has historic homes coexisting with green new buildings. The Near North project, she said, would serve as a symbol that the community is serious about its goals.

Thomas Partridge: Partridge introduced himself as a progressive, Christian-guided Democrat. He called on the council, the residents of Ann Arbor, Washtenaw County and southeast Michigan, to recognize the need for enlightened development. He encouraged the council to invite expert economists and leaders of local economic institutions to study the situation. We cannot wait, he said, to begin addressing the need for affordable housing and transportation. He suggested that the council begin with a reform of site plan requirements for new developments that would include a human rights amendment.

Near North: Council Deliberations

Tony Derezinski (Ward 2) led off deliberations by characterizing the project as “not new to us.” He’d had a chance to see the project in a fair amount of detail already, as the city council’s representative to the planning commission, which had recommended denial of the project on a 5-2 vote for it. Even though it had a majority of votes for it, the failure to reach a 6-vote majority from the 9-member body meant that it had been recommended for denial. Derezinski said he “pled guilty” to being absent for that vote, but would have voted for it.

Derezinski said he felt that better than 90% agreement had been achieved on the project among all parties and that it was a case of being willing to accept a three-quarter loaf.

Leigh Greden (Ward 3) indicated that he’d support the project at this first reading, but wanted to continue to listen to the public and the developer. Sabra Briere (Ward 1) said she agreed with Greden’s sentiments, but said that she did not think a three-quarter loaf was enough – she’d prefer nine-tenths of a loaf.

Mike Anglin (Ward 5) said that the success of Avalon Housing depended on its integration into the neighborhood. He noted that there were two Avalon houses in his own neighborhood that were not noticeable as low-income supportive housing. He said that the kind of harmony and agreement expressed by the developer was not true, saying that there was still disagreement with the project from residents.

Anglin said that even though an alternate proposal had been brought forward at the 11th hour, he hoped that it would be considered by the developer. [In The Chronicle's caucus report, we noted that North Central Property Owners Association representatives at that meeting indicated that they had developed an alternative proposal that would have roughly 30 units at around the same size (750 sq ft) as the developer’s version. A key difference would be that it would have a maximum of three stories, as contrasted with Near North, which includes a section of the structure that is five stories tall.]

Margie Teall (Ward 4) said that she would support the project at this first reading because of the extent of the affordability offered by the housing units.

Marcia Higgins (Ward 4) advised that the minutes from the planning commission meeting when Derezinski had been absent from the vote indicated that only Derezinksi had been absent – which was not consistent with the statement made by Michael Appel that commissioner Craig Borum had also been absent, but would have voted for Near North. She asked the city administrator, Roger Fraser, to follow up to see that the minutes were corrected.

Higgins also emphasized that whether someone would have voted for the project or not did not change the fact that the project had failed to win the planning commission’s recommendation. Still, she said that the levels of affordable housing offered by the project made her more than willing to move the proposal to a second reading.

Sandi Smith (Ward 1) noted the importance of the continued dialog between the developer and the neighborhood group. She characterized the issue as not the affordability of the housing, but rather the massing of the building.

Mayor John Hieftje reported that he’d met with representatives of NCPOA and had appreciated ttheir alternate proposal. He said he found the levels of affordability very attractive.

Outcome: The Near North PUD approved at first reading. Final approval will not come until its second reading before council, which will be accompanied by a public hearing.

Exemption Certificate for AVL Inc.

There was a public hearing on the receipt of the application for an exemption certificate, but the council did not have an action item on its agenda.

Karen Sidney: Sidney noted that while the city’s CFO, Tom Crawford, had just given a presentation on the doom and gloom of the city’s financial picture, the exemption certificate was a tax break, which “the rest of us pay for.” Sidney pointed to the $38 million in Single Business Tax abatement provided by the state to Google, as well as the free parking spaces provided by the city of Ann Arbor, but asked what Google had provided. [The internet company had said it expected to hire 1,000 people over five years, but in the first three years, they've only brought around 250 on board at its Ann Arbor location.]

Thomas Partridge: Partridge asked that all such certificates have a return on investment clause attached.

During his communications from council turn, Stephen Rapundalo (Ward 2), objected to what he said was a characterization by Sidney of the certificate as writing a check and handing it over. He said there’s a prescribed procedure and that the step to be considered by the council that night was simply the acceptance of the application. When the details of the certificate were worked out, he explained, they would reflect the city’s policy of what community elements are expected.

Communications from Council: Driving and Cell Phones

Stephen Rapundalo (Ward 2) reported that he and his Ward 2 colleague, Tony Derezinski, had asked the city attorney’s office to draft an ordinance to prohibit cell phone usage and texting while driving. He owned up to currently being an offender, but said that New York City had passed a similar ordinance and that it was a public safety issue. It will likely come before council at its Aug. 17 meeting.

Sandi Smith (Ward 1) noted that the council’s agenda was now time-stamped, which meant that it was easier to distinguish different versions of that document.

Mike Anglin (Ward 5) reported on a “wonderful thing” that had happened in Ward 5, namely the Michigan Inn on Jackson near I-94 had been demolished. “Let’s hope something good goes up,” he concluded.

Marcia Higgins (Ward 4) reported that the rules committee had been meeting over the last several months and that there would be a need for the council as a whole to have a work session to have a dialogue on rules changes.

Higgins also advised that the council’s administrative committee was asking that councilmembers fill out their surveys on the performance review of the city administrator (Roger Fraser) and the city attorney (Stephen Postema), as it was time for their annual assessments. [Both of these positions report to the city council.]

Mayor John Hieftje explained his rationale for objecting to the unison choral singing that had taken place at the previous council meeting: It could not be tolerated, he contended, because enforcing a rule against multiple people speaking at the same time was the only way catcalls and heckling could be prevented.

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

Absent: none.

Next Council Meeting: Monday, Aug. 17, 2009 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]