Some of the votes, all of which were unanimous, reflected non-action.

Left to right: Mike Anglin (Ward 5) and mayor John Hieftje.

The council voted to table a revision to its medical marijuana licensing ordinance, having postponed it twice previously. Tabling is unlike a postponement to a date certain, and leaves open the possibility that the council might not ever take the question up again. However, Sabra Briere (Ward 1) indicated she intended to take up the medical marijuana ordinance again within six months.

The council has yet to act on recommendations from the city’s medical marijuana licensing board, made at the start of the year, to award licenses to 10 dispensaries. In the meantime, those dispensaries continue to operate. At the council’s Oct. 1 meeting, city attorney Stephen Postema indicated he would be creating a public document for the licensing board that would include a summary of pending legislation and court cases.

The council tabled a resolution on establishing a citizens committee to study the question of how to use proceeds from city-owned land sales. That tabling came at the request of the resolution’s sponsor, Mike Anglin (Ward 5), who had originally brought it forward at the council’s previous meeting.

The council also voted to extend by another 180 days a moratorium on digital billboards in the city – which the council first enacted back in April.

Three of the items on which the council took final action were at least indirectly related to stormwater. The council confirmed the appointment of the top area administrator whose department is responsible for stormwater management – Craig Hupy. Hupy’s appointment as public services area administrator comes after 26 years of service with the city.

The council also approved a $300,000 stormwater improvements component of a much larger $6.5 million street reconstruction project for Miller Avenue. The council authorized $50,000 to study the feasibility of opening up the railroad berm near Depot Street, which might allow floodwater to flow unimpeded to the Huron River on the other side. The study is also meant to cover the possibility of a non-motorized transportation connection under the berm, for pedestrians and bicyclists.

Related to water only in name was a tax abatement granted by the council to Barracuda Networks, which is relocating from Depot Street to downtown Ann Arbor and expecting to add 144 jobs.

The council also approved a raft of proposals related to land use. Winning approval were site plans for a Fiat dealership on West Stadium Boulevard and an expansion of the Food Gatherers facility on Carrot Way. The rezoning of a strip around the perimeter of a parcel at Miller and Maple, where a Speedway gas station will be constructed, got final approval.

A proposed townhouse project on Catherine Street got its rezoning as well as site plan approved. At the public hearing neighbors praised the project and developer Tom Fitzsimmons for what he had done to work with them.

The Plymouth Green Crossings project, which has already been built, got initial approval for revisions to its planned unit development (PUD) supplemental regulations.

The council also added 73 acres to the land protected under the city’s greenbelt program by approving the purchase of development rights on the Hornback farm in Salem Township.

The council weighed in on a state ballot question – which would require electric utility companies in Michigan to provide 25% of their power with renewable sources by the year 2025 – by passing a resolution in support of it.

One of the more significant pieces of news to come out of the meeting was an announcement from Stephen Kunselman (Ward 3) that he could not attend the council’s Oct. 15 meeting. That’s when the council is due again to take up the question of putting $60,000 towards a $300,000 local match for a $1.2 million federal grant that would fund a transportation connector study. It needs eight votes to pass.

Medical Marijuana

The council considered a resolution that would change amendments to its medical marijuana licensing ordinance.

The ordinance amendments in question were recommended by the city’s medical marijuana licensing board at the start of the year. Representative of the revisions is a change that strikes the role of city staff in evaluating the completeness of a license application. The following phrase, for example, would be struck: “Following official confirmation by staff that the applicant has submitted a complete application …” The changes also establish a cap of 20 licenses, and grant the city council the ability to waive certain requirements. The board-recommended revisions to the medical marijuana licensing ordinance are laid out in detail in The Chronicle’s coverage of the medical marijuana licensing board’s Jan. 31, 2012 meeting. [.pdf of recommended licensing ordinance revisions]

The licenses that the board recommended be granted to 10 dispensaries citywide – recommendations also made at the board’s Jan. 31, 2012 meeting – have not yet come before the city council for final action. The proposed ordinance revisions, recommended by the city’s medical marijuana licensing board on Jan. 31, had already been considered and postponed once before, at the council’s April 2, 2012 meeting. When the item came back on June 18, 2012, it was postponed, again until Oct. 1.

The general background of the current medical marijuana climate includes enactment of two kinds of local regulations for medical marijuana businesses last year, at the city council’s June 20, 2011 meeting. One piece of legislation set the zoning laws that apply to such businesses – establishing where medical marijuana dispensaries and cultivation facilities could be located. The other piece of legislation established a process for granting licenses to medical marijuana dispensaries. Cultivation facilities are not required to be licensed.

In the meantime, medical marijuana dispensaries in Ann Arbor continue to dispense marijuana to patients.

Medical Marijuana: Council Deliberations

Sabra Briere (Ward 1) noted this was the third time the item had been on the agenda. Up to now the postponements have involved pending legislation in Lansing. She noted that there would be six months during which it could be taken up off the table, before it would demise, by council rule. She felt she’d likely do so within six months but found no reason to postpone to some date certain.

Jane Lumm (Ward 2) said that given what’s going on at the state level, it’s clearly the wiser approach for now to table it. She also looked forward to seeing a memo that the city attorney, Stephen Postema, has said he’d be providing publicly for the city’s medical marijuana licensing board. Postema noted that the Michigan Supreme Court is taking two cases to be heard on Oct. 11. Those cases deal with the dispensary issue, he said. The court of appeals has ruled against dispensaries, he said. He reported that he’d met with a state representative who’s sponsoring legislation that would provide a local option for municipalities to enact or not, that could allow dispensaries to exist, regardless of the outcome of the state Supreme Court cases.

Outcome: The council voted unanimously to table the amendments to the medical marijuana licensing ordinance.

Committee on Land Sale Proceeds

On the agenda was a proposal to create a 10-person citizens committee to study options for proceeds of the sale of city-owned downtown Ann Arbor properties.

The resolution had been added by Mike Anglin (Ward 5) to the agenda of the council’s previous meeting on Sept. 17, 2012, but was postponed until the Oct. 1 meeting. Anglin’s resolution called for establishing a committee of 10 residents – two from each ward, to be selected by councilmembers from each ward – plus other city officials to address the issue of city-owned parcels in downtown Ann Arbor.

Anglin’s resolution was somewhat vague about how the committee was supposed to address the issue or in what timeframe, and was met with questions at the Sept. 17 meeting about the scope of the committee’s intended purview or its deliverables.

At the Sept. 17 meeting, Anglin’s resolution was one of two that the city council had been asked to consider on the topic. The other one had been brought forward by Sandi Smith (Ward 1), who first outlined the idea to other councilmembers in an email written three weeks prior to their Sept. 17 meeting. It involved directing the proceeds from city-owned land sales to the city’s affordable housing trust fund. Smith’s resolution was postponed at the Sept. 17 meeting until Oct. 15, and was in the meantime referred to the council’s budget committee. Based on the budget committee’s discussion, at a meeting immediately preceding the Oct. 1 meeting of the full council, that committee’s recommendation to the council will likely be for a much weaker version of Smith’s resolution, if it recommends anything at all.

Committee on Land Sale Proceeds: Council Deliberations

Mike Anglin (Ward 5) said that because of other discussions on similar topics that are taking place in the community – among city councilmembers and other groups that are interested in the downtown properties – he wanted to see the proposal tabled. He was satisfied that other councilmembers had expressed at the previous meeting their feeling that the proposal had merit.

Outcome: The council voted unanimously to table Anglin’s resolution.

Digital Billboard Moratorium

The council considered a moratorium on the erection of digital billboards in Ann Arbor. The moratorium, which also prevents city staff from even considering applications to put up digital billboards, was first enacted at the council’s April 17, 2012 meeting.

Falling under the moratorium are “billboards commonly referred to as ‘electronic message centers,’ ‘electronic message boards,’ ‘changeable electronic variable message signs,’ or any billboard containing LEDs, LCDs, plasma displays, or any similar technology to project an illuminated image that can be caused to move or change, or to appear to move or change, by a method other than physically removing and replacing the sign or its components, including by digital or electronic input.”

The resolution passed by the city council in April acknowledges that such signs are already prohibited by the city’s sign ordinance. From that ordinance, the list of prohibited signs include those that “… incorporate in any manner or are illuminated by any flashing or moving lights other than for conveyance of noncommercial information which requires periodic change.”

Digital Billboard Moratorium: Council Deliberations

Christopher Taylor (Ward 3) reminded the council of the moratorium that had been enacted back in April. He reported that it’s taking more time for the staff to determine best practices and to research the relevant case law. So the request was to extend the same moratorium for another 180 days.

Outcome: The council voted unanimously to approve the extension of the moratorium on digital billboards.

Craig Hupy as Public Services Area Administrator

The council was asked to appoint Craig Hupy as public services area administrator for the city of Ann Arbor. Hupy has been serving as interim area administrator for the better part of a year. Public services includes drinking water, stormwater, sanitary sewer, streets, fleet, systems planning and field operations.

Hupy is an engineer by training, and holds a bachelor of science degree from Michigan Technological University. He’s worked for the city since 1986.

The city council’s appointment of the position is stipulated in the city charter in Section 12.1(b):

The appointive officers shall be the City Administrator and the Attorney, who shall be appointed by the Council; the Assessor and the Treasurer, the Clerk, the Controller, the Director of Building and Safety Engineering, the Fire Chief, the Police Chief, the Superintendent of Parks and Recreation, the Superintendent of Public Works, and the Superintendent of Utilities, who shall be appointed by the Council on the recommendation of the City Administrator;

Hupy had replaced Sue McCormick as public services area administrator on an interim basis, after she left that post to take a job as head of the Detroit water and sewerage department in late 2011. McCormick’s last day on the job was Dec. 16, 2011.

When the city administrator announced the interim appointment of Hupy at the Dec. 29, 2011 meeting, he said that Hupy wouldn’t be a candidate for the permanent job: “City administrator Steve Powers announced at the council’s Dec. 5 meeting that the city’s head of systems planning, Craig Hupy, will fill in for McCormick on an interim basis. Powers reported that Hupy had no interest in the permanent position.”

Hupy wrote to The Chronicle in response to an emailed query about the reason for rethinking his interest in the job: “The realization that my public service within the various operations of the City of Ann Arbor had prepared me well to lead the Public Services Area forward and face the future’s challenges.”

Craig Hupy: Council Deliberations

Mayor John Hieftje stated that he fully concurred with the city administrator’s selection, saying that Hupy had performed well as interim.

Mayor John Hieftje.

Hupy would have big shoes to fill, he said – an allusion to former public services area administrator Sue McCormick. He said that Hupy has stepped up to the task and has been successful working with citizens on some controversial issues [like overland and basement flooding].

Mike Anglin (Ward 5) praised Hupy’s leadership on the flooding issue in West Park. Jane Lumm (Ward 2) heard that people were receiving water bills much higher than expected, who were asking questions, which she had forwarded to Hupy. Hupy had handled those questions, she said. She congratulated Hupy, saying it’s one of the most senior positions in the city, to which he’d be bringing lots of experience and technical knowledge.

Stephen Kunselman (Ward 3) offered praise not just for Hupy, but for city administrator Steve Powers as well – for making Hupy his choice. Hupy has been a city employee since 1986, so that means Powers is looking at hiring from within. That means the city has cultivated qualified applicants, he said. And hiring from within encourages people to stick around.

Outcome: The council voted unanimously to confirm Craig Hupy’s appointment as public services area administrator.

Miller Avenue Stormwater Project

The council considered a $300,000 stormwater improvements proposal for Miller Avenue – between Maple Road on the west and Newport Road on the east. The stormwater improvements are part of a larger road reconstruction project, which will cost about $6.505 million.

The stormwater improvements will consist of rain gardens and infiltration basins within the right-of-way. The pavement will not be porous, however – it will be a traditional road surface.

The goal of the improvements is to reduce the amount of stormwater entering the stormwater pipes that flow directly to the Huron River. The idea is that if water is processed through rain gardens and infiltration basins, it will contain fewer contaminants that would otherwise be introduced directly into downstream creeks and the river. The city is subject to state-mandated total maximum daily load (TMDL) for total suspended solids, E. coli and phosphorus.

The council’s requested action was to approve the required petitioning of the Washtenaw County water resources commissioner’s office. The project is eligible for financing through the state’s revolving fund loan program at 2.5%. And the water resources commissioner will be assessing the city no more than $19,245 a year for the payments. It’s possible that up to 50% of the loan will be forgiven because it’s a “green” project.

Mike Anglin (Ward 5) was encouraged by the fact that some people who live along the corridor are putting in more rain gardens and the city staff is helping people to do that. It’s going to be possible to have bicycle paths five feet wide on each side of the road, and a lot of water will be held onsite, which he called really terrific. He felt the project should help the situation downstream as well. He was disappointed that the same approach to achieving some water detention on the property was not achieved for the Stadium Boulevard reconstruction project.

Sabra Briere (Ward 1) commended staff for being creative by building structures under the street for stormwater capture.

Jane Lumm (Ward 2) said she thought the financing piece is also very attractive – given the low interest on the $300,000 loan.

Outcome: The council voted unanimously to approve the petitioning of the county water resources commissioner for the Miller Avenue stormwater project.

Railroad Underpass

The council considered a $50,000 contract with Orchard, Hiltz & McCliment Inc. to conduct a study of a possible underpass for some active railroad tracks in Ann Arbor – which separate the area south of Depot Street (including 721 N. Main) from the Huron River.

The railroad tracks run along the top of a berm. The idea is to study the possible impact of replacing the solid berm – which acts as a dam for stormwater flow from the Allen Creek creekshed – with a culvert or a trestled system for suspending the tracks. The idea of opening up the railroad berm is that it would allow floodwater to pass unimpeded to the Huron River, and lower the depth of potential floods in the area. Also a part of the study is the potential for using the opening as a non-motorized access point to the river, for pedestrians and bicyclists.

For additional detail, see previous Chronicle reporting: “Burrowing under Railroad Berm Feasible?”

Railroad Underpass: Council Deliberations

Sabra Briere (Ward 1), who’d asked that the item be pulled out from the consent agenda for separate consideration, noted that the study is one of many ways the city is looking at dealing with stormwater. She pointed out that one of the council mandates to a task force currently looking at the North Main corridor is to give advice on the best way to get over, under or around the railroad tracks – to connect 721 N. Main to the Border-to-Border trail. At the same time, the city is looking at ways of dealing with floodwater. The study will explore if there’s an acceptable way to find a passage for floodwater and a passage for pedestrians and bicycles in the same location, she said.

Outcome: The council voted unanimously to approve studying the opening of the railroad berm.

Barracuda Tax Abatement

The council was asked to consider a tax abatement to Barracuda Networks in connection with its relocation from 201 Depot Street to the old corporate headquarters of Borders in downtown Ann Arbor, off Maynard Street. The total tax break for the 5-year period of the abatement is expected to be worth $61,000. That’s less than the originally estimated amount of $85,000.

Barracuda is a computer network security company. On its application for the abatement, Barracuda indicates that it currently has 155 employees who will be retained due to the abatement. The firm expects to add 144 employees by July 1, 2014. The property on which Barracuda is requesting the abatement ranges from cubicles and desk chairs to telephone network equipment and wiring.

The tax abatement agreement between the city of Ann Arbor and Barracuda makes the expectation of 144 new hires an explicit condition on receiving the abatement:

Barracuda Networks will add not less than one hundred forty four (144) jobs at the facility named on the Application as compared to its number of employees as of the effective date of the Certificate. If Barracuda Networks adds less than one hundred forty four (144) additional jobs by December 31, 2014, Barracuda Networks shall have materially breached the terms of this Agreement and the City shall have the right to recommend revocation of the Certificate subject to provision 10 of this agreement to the State Tax Commission or taking other appropriate legal action in connection with the default.

The council had voted at its Sept. 4 meeting to set the public hearing held on Oct. 1. And the council had previously set a hearing on the establishment of an industrial development district (Michigan’s Act 198 of 1974) at 317 Maynard St. in downtown Ann Arbor and voted to establish that district at its Aug. 9, 2012 meeting. That set up the opportunity for Barracuda Networks to apply for a tax abatement as it moves to the downtown site. [.jpg of parcel map showing 317 Maynard] [.jpg of aerial photo showing 317 Maynard]

Barracuda Tax Abatement: Public Hearing

Thomas Partridge told the council that recipients of the tax abatements should be required to come before the council to present their case for why they can’t find private capital to achieve the same goals. Those companies should also have policies in place so that senior citizens and lower income workers won’t face job discrimination.

Sean Heiney introduced himself as founder of Ann Arbor’s Barracuda research and development office. He told the council it’s worked out well so far. In 2007 Barracuda had started its Ann Arbor location with five software development engineers; now, over 200 people are employed on Depot Street. He characterized the 144 position to be added as great-paying jobs, which would have a positive impact on the community. He called Ann Arbor a “cornerstone” of the company’s planned expansion.

Barracuda Tax Abatement: Council Deliberations

Jane Lumm (Ward 2) thanked the city’s CFO, Tom Crawford, for the due diligence done on the application. She noted that many cities grant abatements to retain businesses.

Sandi Smith (Ward 1).

Ann Arbor is already attractive and rarely needs to provide such incentives, she said. Lumm noted that it’s important to have Barracuda occupy the old Borders corporate location, and felt that adding 144 jobs is a positive outcome.

Mayor John Hieftje asked Crawford how much the relocation of Barracuda would add to property tax revenues. Crawford didn’t have the figures in front of him, but noted the city already receives property tax revenue from the parcel. Hieftje said he’d had meetings with folks over at Barracuda, and appreciate their resolve to stay in Ann Arbor. He said the company is bringing a lot of energy to the downtown area.

Sabra Briere (Ward 1) reported that she’d had several exchanges with Crawford and wanted to point out that when the council approved the establishment of the industrial development district, the estimated value of the tax abatement for the five-year period was higher [$85,000] than the current estimate of $61,000. That had been based on an investment by Barracuda of almost $2 million in improvements, she said. But Barracuda had been able to be more frugal, so it was less of a “hit” to the city. Sandi Smith (Ward 1) balked at the word “hit,” saying that it’s money that the city is forgoing for a short period of time.

Outcome: The council voted unanimously to approve Barracuda’s tax abatement.

Food Gatherers Site Plan

The council considered a proposal from Food Gatherers to expand its large warehouse, adding cooler and freezer space to accommodate its focus on fruits, vegetables and other fresh food. The Carrot Way site, on Ann Arbor’s far north side, is a hub for the nonprofit’s food distribution. The city planning commission recommended approval of the site plan at its Aug. 21, 2012 meeting.

The site plan was a revision to the nonprofit’s planned unit development (PUD), which will allow for a 12,646-square-foot addition to the back of the existing 16,977-square-foot building.

That building houses the nonprofit’s administrative offices, storage warehouse, and training space. The plan also will add 22 parking spaces to the site, and includes an expansion of produce-washing stations, used to clean vegetables grown at gardens on the site. The Carrot Way site is located on the north side of Ann Arbor off of Dhu Varren Road, east of Pontiac Trail.

According to a staff memo, the changes include a separate administrative land transfer request to shift a shared lot line between the site and a parcel of vacant land to the southeast – both owned by Food Gatherers. The lot line will be moved about 70 feet south, adding 0.43 acres to site where the Food Gatherers’ facility is located. The larger lot size is necessary so that the building addition will conform to the permitted floor-area ratio (FAR). FAR – a measure of density – is the ratio of the square footage of a building divided by the size of the lot. A one-story structure built lot-line-to-lot-line with no setbacks corresponds to a FAR of 100%. A similar structure built two-stories tall would result in a FAR of 200%.

The site plan conforms with the existing PUD zoning, so one approval by the council at the Oct. 1 meeting was sufficient. Changes to zoning require two readings before the council.

Food Gatherers Site Plan: Public Hearing

Former board member Gary Bruder addressed the council on behalf of Eileen Spring, who is executive director of Food Gatherers. He described the addition of the warehouse and office space, and characterized the need for it as straightforward: the economy is facing great challenges. In Washtenaw County, 1 in 7 adults and 1 in 6 children are experiencing hunger, he said, and of those only 1 of 8 have sufficient access to fruits and vegetables. That had driven a Food Gatherers decision to add cold storage to meet those needs. The addition to the space would allow the doubling of the nonprofit’s food distribution capacity, from 5 million to 10 million pounds a year, and increase their storage capacity for proteins and produce from 32 pallets to 260 pallets.

They’ll have better work space for volunteers and be able to increase the diversity of food choices for people who receive food from the nonprofit, Bruder said. The project team was there, he said, who would be available to answer questions: David Esau of Cornerstone Design, John Curry from Professional Engineering Associates, and John Reed, Food Gatherers director of operations.

Food Gatherers Site Plan: Council Deliberations

Other than a remark from mayor John Hieftje to the effect that the renaming of the street where Food Gatherers is located had resulted in some pushback from the U.S. post office, the council did not deliberate further on the request.

Outcome: The council voted unanimously to approve the Food Gatherers site plan.

Fiat Site Plan

The council considered a plan to build a new Fiat showroom next to the post office on West Stadium Boulevard. The property is owned by the Suburban Collection of Troy. The site plan was recommended to the council for approval by the planning commission at its Aug. 21, 2012 meeting.

The property had originally been developed in the late 1950s as a gas station, but underground tanks have been removed. It had been purchased by the Naylor Chrysler dealership in the mid-1990s, and most recently was acquired by the Suburban Collection of Troy, which operates a Chrysler Jeep dealership across the street at 2060 W. Stadium. Suburban also owns local Cadillac and Chevrolet dealerships located on Jackson Avenue.

The site plan calls for demolishing a 2,505-square-foot automotive service building and constructing a 3,408-square-foot showroom. The 30,010-square-foot site is zoned C3 (fringe commercial) and is located next to the post office on the west side of Stadium Boulevard between Federal Drive and East Liberty. The new showroom building will be on the south side of the site, roughly in the same spot as the existing building. However, it will be shifted toward the front lot line to comply with the city’s maximum 25-foot front setback requirement.

There are two driveways now off of West Stadium Boulevard. The southern driveway and curb cut will be closed, and filled in with landscaping.

According to a staff memo, the site has 43 parking spaces. The city granted a variance in 1998 as part of an addition to the building and expansion of the parking lot. The variance allows four parking spaces in the front – at the time, a 40-foot minimum front setback was required. The variance also permits parking stalls to be “stacked” for vehicle storage, with a 20-foot aisle between the stacked parking spaces.

There is no current stormwater management on the site. The proposed plan includes underground stormwater management for a 100-year storm volume.

Fiat Site Plan: Public Hearing

Thomas Partridge told the council that a dedicated and reliable form of revenue for affordable housing in Ann Arbor was needed.

Stanley Tkacz, of Studio Design-ST, addressed the council representing the Suburban Collection. He hoped the council would look at the building program and support it.

Fiat Site Plan: Council Deliberations

The council did not deliberate further on the Fiat site plan.

Outcome: The council voted unanimously to approve the Fiat site plan.

Plymouth Green Crossings

The council considered several changes to the PUD supplemental regulations for Plymouth Green Crossings – a mixed-use complex off of Plymouth Road, west of Green Road.

The city planning commission gave its recommendation to approve the change at its Aug. 21, 2012 meeting.

The current request proposes six major changes: (1) adding parking or flexible space for special events as permitted uses in the ground floor of a proposed three-story mixed-use building, on the site’s northeast corner; (2) increasing the use of potential restaurant space within the site from 7,000 square feet to 14,224 square feet; (3) eliminating requirements for a free-standing restaurant that had previously been planned; (4) increasing the maximum number of parking spaces from 275 to 290; (5) reducing the minimum number of bicycle storage spaces from 70 to 64; and (6) adding the following language to the facade section: “ground level facades of Building A if used as interior parking shall include architectural columns, a minimum 3-foot height masonry screen wall, and louvers or grills to screen views to parking while permitting natural ventilation.”

In addition, the city recently discovered that the bank building was built one foot from the west property line, although the approved site plan and supplemental regulations required a two-foot setback. To resolve this, the owner proposed an amendment of the PUD supplemental regulations, according to a staff memo. The memo also indicates that the owner has been making contributions to the city’s affordable housing fund, rather than providing affordable housing within the complex. The final payment is due at the end of this year. [For background on a current policy discussion on the affordable housing trust fund, see "City Council to Focus on Land Sale Policy"]

This isn’t the first time that changes have been requested for the site. In 2009, developers also asked to amend the original PUD agreement. Rather than build a restaurant, they asked for permission to turn that part of the site into a temporary parking lot, adding 26 additional parking spaces and 11 spots for motorcycles. The planning commission didn’t act on that request until its Feb. 18, 2010 meeting. Although all five commissioners at that meeting voted to approve the request, the action required six votes to pass, so it failed for lack of votes. However, the request was forwarded to the city council, which ultimately granted approval at its April 19, 2010 meeting.

Outcome: The council voted unanimously to approve changes to the PUD supplemental regulations for Plymouth Green Crossings.

Speedway Rezoning

The council considered the final step to rezone a small portion of a parcel at North Maple and Miller – essentially a formality associated with development of a Speedway gas station at that location. The zoning will change from PL (public land) to C3 (fringe commercial).

The portion of the parcel that’s subject to the rezoning has an easement requiring public access; that easement will remain. The project is located at 1300 N. Maple on a 1.39-acre site. The portion of the parcel that’s subject to the rezoning request is a path that circles the property along the east and north sides. [.jpg of drawing showing the property and the portion to be rezoned]

Approval of the site plan and the initial approval of the rezoning for the gas station had come at the council’s Sept. 4, 2012 meeting. The recommendations for approval by the Ann Arbor planning commission came at that body’s July 17, 2012 meeting.

At the council’s Sept. 4 meeting, city planning manager Wendy Rampson indicated that by looking through the city’s files, planning staff had not been able to determine why the portion of the parcel had been zoned PL in the first place. Every era has its own set of practices, she said. She felt it’s possible that planning staff at the time thought that the PL zoning would send a message that the property was to be used by the public, which is consistent with the easement requiring public access. Rampson said the city does things a bit differently now. She said if the council chose not to approve the rezoning, it wouldn’t change anything on a practical level. But she felt that it’s “cleaner” to make it clear that the land is owned by the private property owner and that maintenance is the responsibility of the owner.

Outcome: Without deliberating further, the council voted unanimously to approve the Speedway parcel rezoning.

Catherine Street Townhouse Project

The council considered a site plan and rezoning request for a residential project on Catherine Street that includes a three-story townhouse with five housing units at 922-926 Catherine St. The initial approval of the rezoning request had been given at the council’s Sept. 4, 2012 meeting. That rezoning request had been recommended for approval at the July 17, 2012 meeting of the Ann Arbor planning commission.

The two vacant parcels are on the south side of Catherine between Ingalls and Glen, across from the University of Michigan School of Nursing building. The lots are located in the Old Fourth Ward historic district.

The development – which according to the owner, Tom Fitzsimmons, will be marketed to students, UM employees, young homebuyers, and empty nesters – entails rezoning the parcels from PUD (planned unit development) to R4C (multi-family residential). The PUD zoning is tied to a previous development that was approved but never built. The current site plan was contingent on approval from the city’s zoning board of appeals for variances from the conflicting land use buffer requirement. The ZBA granted that variance at an August meeting.

Five garages would be part of the development, with nine parking spaces and bike storage located below the townhouses. A 24-foot-wide curb cut is proposed off Catherine Street for a driveway, which would run along the east side of the site leading to the garages.

The proposed building and site layout plans were approved by the Ann Arbor Historic District Commission on April 12, 2012.

Catherine Street Townhouse Project: Public Hearing

Thomas Partridge introduced himself as an advocate for residents who would benefit from affordable housing. He endorsed this rezoning but said that the city council should pass an ordinance that requires dedication of significant amount of available acreage to affordable housing for every proposal. During a separate hearing on the site plan, Partridge questioned the lack of density on the site, saying that Ann Arbor needs to be known as a university town not a real estate Mecca.

Christine Crockett introduced herself as president of the Old Fourth Ward Association. Alluding to the frequently debated topic of public art, she said the most important public art is good architecture. The developer and builder of the project had hired a talented architect, she said: Lincoln Poley. She called it the right project for the right place. She welcomed these condos into the ward, saying that the project adds to the kind of dwelling units people want in the R4C-zoned neighborhood. She was pleased with the way Fitzsimmons has handled the project. Every step of the way, he has included the neighbors in the process. She reiterated that good architecture is the best public art.

Julie Ritter told the council she lives next door to the proposed project. She’s delighted it’s going up. Fitzsimmons had been professional, courteous and thoughtful in his interactions with the neighbors, she said. She asked the council to support the project.

Tom Fitzsimmons introduced himself to the council as the developer as well as the builder for the project. He told the council it’s been a long time since he’s appeared before the council, so he wasn’t sure if there’d be Q & A. But he told them that he was available, as was the engineer on the project.

Catherine Street Townhouse Project: Council Deliberations

The council did not deliberate further on the project.

Outcome: The council took separate unanimous votes of approval on the rezoning and site plans for the Catherine Street project.

Ann Arbor Greenbelt: Hornback Farm

The council was asked to approve the acquisition of development rights on the Hornback farm in Salem Township as a part of Ann Arbor’s greenbelt program. The specific request was to approve $199,367 from the city’s open space and parkland preservation millage for the purchase of development rights on the property. The roughly 73-acre farm is located on Pontiac Trail and Brookville Road.

Jane Lumm (Ward 2) and Paul Fulton of the IT department before the Oct. 1 meeting.

The appraised value of the property was $321,000, but the landowner made a 10% donation of $32,100, leaving a purchase price of $288,900. Of that, the city of Ann Arbor’s share was $160,500 after contributions from Salem Township and Washtenaw County of $64,200 apiece. The city incurred due diligence costs ($10,000), closing costs ($5,000) and made a contribution to the greenbelt endowment ($23,867) that brought the city’s share to $199,367.

The city’s 30-year 0.5 mill greenbelt tax was established by a voter referendum in 2003 for the purpose of “funding the acquisition of land for parks and the acquisition and management of land and land rights in undeveloped and developed land both within and outside the City of Ann Arbor for the purpose of preserving and protecting open space, natural habitats and the City’s Source-waters.”

Ann Arbor Greenbelt: Hornback Farm – Council Deliberations

Jane Lumm (Ward 2) allowed that other councilmembers might be getting tired of her objections to some of the greenbelt acquisitions. She said that when the millage was passed, the idea was that the city’s share would not be more than a third of the cost. For this particular property, she noted, the city’s share was closer to a half. But she said she would support this acquisition, because of the participation of Salem Township and Washtenaw County.

Outcome: The council voted unanimously to approve the acquisition of development rights on the Hornback farm.

25-by-25 Ballot Question

The council considered a resolution in support of a statewide Michigan ballot proposal that would require electric utilities to provide at least 25% of their annual retail sales of electricity from renewable energy sources by the year 2025.

Renewable energy sources are defined as wind, solar, biomass, and hydropower. Although it would change the state’s constitution, the proposal includes provisions that could extend the 2025 deadline into the indefinite future. An annual extension could be granted if it would prevent rate increases of more than 1% per year. The proposal would limit rate increases required to achieve the 25% standard to no more than 1% per year.

25-by-25 Ballot Question: Public Comment

Not speaking directly to the ballot question, but nonetheless commenting on a related topic, Kermit Schlansker stated that he’s in favor of building new nuclear plants. But he wanted to build as few as possible, in order to lower cost and reduce safety problems. He encouraged the use of solar, wind, biomass, and geothermal sources of energy, to reduce the number of nuclear plants that would be required. He then described a range of applications of solar energy, including photovoltaic arrays, building-oriented systems, and mirrored arrays.

Wayne Appleyard introduced himself as the current chair of the city’s energy commission. He told the council it was important to pass the resolution supporting Proposal 3. The energy commission will be sending a climate action plan to the council next month, which a task force has been working on for the past year. That plan recommends that 25% of the community’s energy be produced by renewable sources by the year 2025. That parallels a goal adopted by the University of Michigan, he said. Proposal 3 is the single most important element of reaching that goal, he said. The current law –Public Act 295 – is moving electric utilities toward the goal of 10% renewable energy in 2015. But utilities have not endorsed Proposal 3, and essentially intend, he contended, to stop producing more renewable energy in 2015. The cost of wind and solar continues to fall but the long-term cost of burning fossil fuel is increasing, he said.

Outcome: The council voted unanimously to approve the resolution in support of Proposal 3.

Communications and Comment

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

Comm/Comm: Future Attendance – Transit Connector Study

Stephen Kunselman (Ward 3) announced that he would be absent for the next council meeting on Oct. 15. [He's attending a professional conference in connection with his employment as energy liaison at the University of Michigan.] So he alerted his colleagues that his seat would be empty at that time.

The impact of Kunselman’s absence is that his vote will not be available to support an item on that meeting’s agenda – a request for $60,000 to study a transit connector for the corridor that runs from US-23 and Plymouth southward along Plymouth to State Street and farther south to I-94. This alternatives analysis phase of the study is to result in identifying a preferred choice of technology (e.g., bus rapid transit, light rail, etc.) and the location of stations and stops.

The Ann Arbor city council already voted on Sept. 4, 2012 to reject the $60,000 request, but reconsidered that vote two weeks later on Sept. 17, 2012. But on reconsideration of the vote, the council decided to postpone a decision until Oct. 15. Kunselman voted for the proposal at the Sept. 4 meeting, but at that meeting he appeared somewhat non-committal. His absence on Oct. 15 will reduce the body to no more than 10 members for a vote that requires eight to pass.

In the meantime, some of the requested $60,000 might actually be provided by the Ann Arbor Downtown Development Authority. Initial indications to the AATA were that the DDA’s budget constraints would not allow a contribution to the local match. But at a Sept. 26, 2012 meeting of the DDA’s operations committee, it was decided that the full DDA board would be asked to consider a connector study funding resolution at its Oct. 3 meeting. The DDA resolution would specify a $30,000 total contribution by the DDA, in two $15,000 payments to be made in each of the next two years. Members of the DDA’s operations committee wanted to make the $30,000 contingent on the city of Ann Arbor providing the other $30,000.

The $60,000 is a portion of $300,000 in local funding that has been identified to provide the required match for a $1.2 million federal grant awarded last year to the AATA for the alternatives analysis phase. The breakdown of local support was originally intended to be: $60,000 from the city of Ann Arbor; $150,000 from the University of Michigan; and $90,000 from the AATA.

Comm/Comm: Retirement System

Jane Lumm (Ward 2) said she’d be bringing forward a resolution that would transition the retirement system from a defined benefit to a defined contribution system. It would be just for new hires, she said.

Comm/Comm: Towing

Sabra Briere (Ward 1) reported that she’d talked to the city attorney’s office about the existing ordinances affecting the towing of vehicles. Some kind of revision could be forthcoming.

Comm/Comm: Living Wage

Jane Lumm (Ward 2) announced that a revision to the living wage ordinance will be introduced at a future meeting to address a nonprofit exemption. The housing and human services advisory board would review it first. She hoped that by the second meeting in October something might be ready, but allowed it could be later.

Comm/Comm: Lewy Body Dementia Proclamation

At the start of the meeting, Tamara Real received a mayoral proclamation declaring October as Lewy Body Dementia (LBD) Awareness Month. In her brief remarks, Real told the council that her husband, Carl Rinne, suffered from LBD. So it was personal to her that it helps other people learn about the illness, she said. She suggested that for people who have loved ones who show shifts in behavior, they should visit the website of the Lewy Body Dementia Association, concluding: “You don’t have to go through this alone.”

Chronicle readers might remember that the Ward 5 Democratic primary debate in 2010 was hosted by Real and Rinne in their home. Real is former president of the Arts Alliance. Rinne is a University of Michigan associate professor emeritus of education.

Comm/Comm: Citizens United Decision

Weston Vivian – who’d been introduced for public commentary by mayor John Hieftje as “Vivian Weston” because the agenda showed his name printed that way – jokingly led off in falsetto. He asked the council to show its support for a Constitutional amendment to reverse the impact of the Citizens United U.S. Supreme Court decision, which held that corporations could spend money on “electioneering communications.” Vivian described the situation as one where the actions of one member of the Supreme Court would take 100 million Americans to reverse. He allowed that it’s a long and tedious task. He asked the council to consider passing a resolution, indicating the city’s desire that the change to the Constitution be made. He pointed to other governing bodies that had passed similar resolutions recently in the state of Michigan (Ypsilanti, Ingham County, Lansing) and elsewhere (Chicago and Los Angeles).

Comm/Comm: A2 Open City Hall

City administrator Steve Powers noted that the city’s online Open City Hall had two topics open: the fire station reconfiguration and the urban forestry plan.

Powers also noted that the city is still seeking feedback on the solid waste plan through an online survey.

Comm/Comm: Living Next to Construction

Eleanor Linn introduced herself and her husband as residents of Forest Court. She noted that it’s been four and a half years since the first uproar about a proposed high rise building at the corner of Forest and South University. [The building in question was originally named 601 S. Forest, but changed to the Landmark.] On the occasion of the building’s recent opening, Linn gave the council a summary of what has happened, saying that “noise and dust” as a description of living next to a construction site was a gross underestimate. She estimated over $5,000 worth of expense related to air filtering and ventilation.

Linn counted five doctor’s visits for eye and respiratory problems. They’d experienced cleaning and repair problems caused by oily dirt or scratchy dirt and pink mortar that stuck permanently to wet surfaces. She’d made more than a dozen calls about construction noise – which extended beyond the permitted hours from 7 a.m. to 8 p.m. Monday-Saturday. Water and electricity were sometimes cut off without advance notification. The city’s garbage collection sometimes was not provided due to construction equipment blocking the entrance to their street. Muddy water had been allowed to flow into the city’s stormwater system. The developer didn’t secure the abandoned building adequately and squatters had started a fire, she said.

Many claims of the developers didn’t materialize, Linn contended – giving as examples the lack of a green roof and no LEED certification. They’d been told that students recycle so there’d be no garbage. Of course, she said, there’s garbage. They’d been told that students would not bring cars. But instead, she characterized the area as “overrun with automobiles.” The ventilators for the underground parking garage operate all day and all night, and are not supposed to be audible beyond the confines of the property. But she reported that she is frequently awakened by them. The trees along the property line lost their leaves in one week and are now dead. The grading of the pavement is several inches higher than next door, which leaves dangerous gaps. So she urged the council to think carefully when other large projects are proposed.

Comm/Comm: The Most Vulnerable

During public commentary at the start of the meeting, Thomas Partridge identified himself as a Democrat and advocate for all those who need government services the most. He was there to forward the cause of Ann Arbor’s and Michigan’s most vulnerable citizens – the seniors and people with disabilities and those with lower incomes. He said it was time to get behind the election of president Barack Obama. People need to go door-to-door and make sure that everyone is registered and has transportation to the polls, he said.

During public commentary at the conclusion of the meeting, Partridge criticized the lack of an effort to do more to get people registered to vote. He said he’d be a write-in candidate for state representative of the 53rd District, supporting the cause of those who need government services the most – like affordable housing, health care, and education.

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

Absent: Tony Derezinski, Marcia Higgins.

Next council meeting: Monday, Oct. 15, 2012 at 7 p.m. in the second-floor council chambers at city hall, 301 E. Huron. [Check Chronicle event listings to confirm date]

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From left: Councilmember Tony Derezinski (Ward 2) and 618 S. Main developer Dan Ketelaar at the June 18, 2012 Ann Arbor city council meeting. (Photos by the writer.)

The council debated but ultimately approved both the site plan and the brownfield plan for the 618 S. Main project – an apartment complex that Dan Ketelaar’s Urban Group Development Co. intends to market to young professionals. The 7-story building would include 190 units for 231 bedrooms, plus two levels of parking for 121 vehicles. The project had received a recommendation for approval from the city planning commission on Jan. 19, 2012.

The project’s approval meant that the council granted a variance in the height allowed in the D2 (downtown interface) zoning district – 85 feet, which is 25 feet taller than the 60-foot limit allowed in D2. The majority of councilmembers felt that the project reflected a months-long positive collaboration by the developer with neighbors and with the Ann Arbor Downtown Development Authority, which approved a $650,000 grant to complement the $3.7 million brownfield plan.

The project was opposed by Stephen Kunselman (Ward 3), who essentially indicated he did not trust Ketelaar and other “speculators.” Kunselman also seemed unconvinced of the environmental benefits of the project. Mike Anglin (Ward 5) joined Kunselman in voting against the site plan and the brownfield plan. Both votes were 8-2 – Sandi Smith (Ward 1) was absent from the 11-member council.

In other business, the council made an adjustment to the current fiscal 2012 budget just before the fiscal year ends on June 30, to ensure that the city conforms with the state statute on uniform budgeting and accounting. The adjustment to the city’s general fund allowed for $1.3 million in additional expenses. Despite that, CFO Tom Crawford said he felt the city would end the year around “break even.”

The council also took action to allocate $1,244,629 to different nonprofits that provide human services. The amount was set as part of the FY 2013 budget, which the city council approved on May 22, 2012.

The council also authorized around $1.5 million for new dump trucks – with stainless steel parts to ensure a longer life than the vehicles they are replacing. And councilmembers approved a roughly $800,000 contract for a five-phase study to analyze stormwater in the city.

Other expenses authorized by the council included a $48,000 annual contract renewal with Governmental Consultant Services Inc., the city’s lobbyist in Lansing, and a $75,000 contract with Ann Arbor SPARK, the area’s economic development agency.

Also at the council’s meeting, nominations for three commissions were floated, to be voted on at the next meeting: Ken Clein for the planning commission; John German for the environmental commission; and Archer Christian for the greenbelt advisory commission.

618 S. Main

In separate items, the city council considered a site plan and the brownfield development financing for the 618 S. Main project.

618 S. Main: Background

The 618 S. Main project is an apartment complex that developer Dan Ketelaar intends to market to young professionals. The 7-story building would include 190 units for 231 bedrooms, plus two levels of parking for 121 vehicles. The project had received approval from the city planning commission on Jan. 19, 2012.

At 85-feet tall, the project is 25 feet higher than permitted in the D2 (downtown interface) zoning district where the site is located. So it was submitted as a “planned project” – a provision in the zoning code that allows some flexibility in height or setbacks, in exchange for public benefits.

A planned project is not the same thing as a planned unit development (PUD), which allows for significant variance from the existing zoning by actually changing the zoning on a parcel. Among the public benefits cited for 618 S. Main is a rain garden system for stormwater infiltration, which is expected to reduce stormwater volume in the city’s piped system (as required by code), but would also result in cleaner flow.

The project borders the Old West Side historic district – and the board of the Old West Side Association submitted a letter of support for the development.

The proposed brownfield tax increment finance (TIF) plan works in concert with a $650,000 TIF grant (paid over a period of four years) awarded by the Ann Arbor Downtown Development Authority board at its June 6, 2012 meeting. Both the brownfield TIF and the DDA TIF grant work in a similar way: The developer must build the project and pay the new taxes on the project. After that, the developer receives reimbursement for eligible expenses.

The DDA’s grant covers work in the following categories: streetscape improvement costs; a rain garden to infiltrate stormwater, as opposed to detention-and-release; and upsizing a water main. Work covered by the brownfield plan includes: site investigations for characterization of soils and dewatering if water is encountered during excavation; disposal of soils; demolition of buildings and removal of existing site improvements; lead and asbestos abatement; infrastructure improvements like water, storm sewer and sanitary sewer upgrades, street repair and improvements to streets; and site preparation like staking, geotechnical engineering, clearing and grubbing.

The brownfield plan includes reimbursements to the developer of $3.7 million over 21 years. The city’s financial analysis puts the rate of return to the developer on his investment at between 5.81% and 6.13%. The city’s analysis concludes that the rates of return are below previously-approved brownfield plans. A risk identified in the city’s analysis is the fact that, based on the financial pro forma submitted by the developer, the return to the developer is low. [.pdf of the TIF analysis]

The city council’s brownfield review committee – Sandi Smith (Ward 1), Stephen Kunselman (Ward 3) and Marcia Higgins (Ward 4) – had given the 618 S. Main project a 3-0 vote recommending the city council’s approval of the plan.

618 S. Main: Public Hearing

Several people spoke at the public hearing on the site plan.

Barbara Hall introduced herself as representing the board of the Old West Side Association. Members of the OWS board are pleased to have participated in several months of productive discussion about the 618 S. Main project, she said. All aspects of the final design reflect input made during that process. The project gives the Main Street side an industrial facade, but uses a rain garden to buffer the impact on the other side, abutting the neighborhood.

An alliance of groups – from downtown neighborhoods, to the Ann Arbor Downtown Development Authority, the city’s design review board and the planning commission – have agreed that 618 S. Main is worth their support, Hall said. For the OWS board, the project as now presented offers a number benefits as compared to the strict D2 zoning. The benefits don’t completely offset the loss of locations for three long-standing businesses, she said. But she hoped that a large residential presence will re-invigorate existing retail business and spur additional businesses – like a grocery store. The OSW board sees the building as a gateway and urges approval of this opportunity for housing near the center of the city, Hall concluded.

Thomas Partridge expressed opposition to the project. As he understood the project, Partridge said, it includes no connection to a commitment to affordable housing – not even a single apartment. He urged reconsideration of the project as an affordable housing project.

Rita Mitchell introduced herself as a Fifth Street resident. She said she appreciates living in the Old West Side historic district – which is a great place to live, she said. She also appreciates the work of the OWS board, which has done a lot of work in connection with the 618 S. Main project. However, she was not sure the OWS board’s work represents all the people in the area – so she would speak for herself, Mitchell said. As presented, she noted, the 618 S. Main project requests a variance from the newly established D2 zoning – two stories taller than what the D2 zoning would allow. Immediately next to the building are one- and two-story buildings, Mitchell said. A 7-story building would create an out-of-character wall towering over the other buildings. Why would the council spend the time that had been invested to complete the A2D2 downtown rezoning process, only to approve a non-conforming project? she asked.

Mitchell said the developer appeared to have made a threat to build a worse alternative that could comply with the D2 zoning – the kind of approach that had led to City Place. [City Place is a controversial apartment project being built on South Fifth Avenue.] It’s an approach where a developer drives the agenda, she said. People feel compelled to agree, for fear of a worse outcome. Mitchell also questioned the value of the brownfield financial plan. She asked the council to vote no on the site plan and to return to the A2D2 process, to review and revise the downtown zoning again, so that effective step-downs are provided between downtown and neighborhoods.

Mike Siegel, associate principal of VOA Associates, a Chicago architecture firm, introduced himself as the project architect. He told the council that the project team had explored several schemes that were “by right” zoning. The distribution of the “building program” was lot-line-to-lot-line, from Ashley Street to Main Street down to Mosley Street, with a small courtyard in the middle. The building was 60 feet tall [the maximum height for D2 zoning] with some articulation architecturally along the streetwall.

Siegel said the project team was not really sure that “by right” approach was the right solution for the surrounding context. It’s a dynamic site from one side to the other, and it’s a transitional site, he said. So the team approached the city’s planning staff and had some conversations about how to deal with the issue. Planning staff suggested that with the “planned project” approach, there would be more flexibility for distributing the massing of the building – but there would need to be public benefits. In response to that suggestion, Siegel said three design schemes had been developed. To guide which of the three schemes would be pursued, the team had invited the community to a series of meetings, including local businesses. [For Chronicle coverage of one of those meetings held in November of 2011, see: "Public Gets View of 618 S. Main Project."]

A dialogue had been started, Siegel said. The community guided the shifting of the massing from Ashley Street to Main Street. Additional parking was requested, so an additional story of parking was added. The community asked that parking entries be divided on both side of the site, and that had been done, he said. The community wanted an enhanced pedestrian experience on Main Street, he said, so the building had been set back five feet to accommodate that. As the project went along, the team had appeared before the city’s design review board (DRB). The DRB was interested in the articulation of the streetwall. Out of that DRB conversation a tower element had been developed on the corner of Main and Mosley.

Shannan Gibb-Randall introduced herself as the project’s landscape architect. She’s with Insite Design Studio, an Ann Arbor firm. Gibb-Randall explained the concept of the rain garden, which she said could have been surface parking. But the team felt it had the potential to be something better. So the courtyard was created as an amenity for the people who will live in the building. But it’s also a great way to handle stormwater on the site in a sustainable way. She described it as the “back yard” for future residents of the building. Currently the site where the project is planned is 100% impervious, which means that every drop of rain runs into the Allen Creek and on into the Huron River.

Gibb-Randall explained that the rain garden will act as a sponge, with three feet of special soils and native plantings that are good at absorbing water. Anything that doesn’t get absorbed is connected to the sand seam layer, which is about nine feet down. So the stormwater will not travel through the city’s piped stormwater system. The site will be connected “just in case,” but a 100-year storm will infiltrate, she assured the council. The project would remove an acre of impervious surface that leads to Allen Creek, she said. She indicated that the project team hopes this approach will be a catalyst for other projects in downtown to do the same, which is possible because the downtown “sits on a pile of sand.”

Gibb-Randall also commented on the Main Street side of the building. The building has been pushed back, she said, which increases the 9-foot-wide sidewalk to a 14-foot-wide sidewalk. She also pointed to the densely planted area on the Mosley side of the building.

Dan Ketelaar, president of Urban Group Development Co., described the process as “surprisingly enjoyable.” He described the review process of the city’s design review board as working perfectly. The result shows how when people work together, you get something better than what you start with, he said.

The D2 is intended as a buffer between the downtown and the neighborhoods, he said. How do you do that, when one side is residential and one side is the downtown community? The project strives to do that in the best way it can, he said, and he felt like it had been successful. He described the process as difficult, but felt the community had enjoyed the process too.

Ketelaar stressed that 618 S. Main is not a student housing project, but rather it’s designed for young professionals. Of the units, 37% are studios, and 37% are one-bedroom units. The remainder are two-bedroom units. The amenities are meant to appeal to a young professional group – features like meeting rooms and lounge areas. The apartments are small, but with large common areas, so that residents can get together and spend time together, he said. It’s within walking distance to downtown, he said, and includes 120 parking spaces, which is twice the number required.

Ketelaar said the project team has tried to be as responsible as they know how to be. He felt that the project meets the requirement for a “planned project” outlined in the city code.

John Byl, an attorney with Warner Norcross & Judd LLP, told the council he was a brownfield specialist, and has been working on that aspect of the project. He was there and available to answer any questions about that aspect of the project, he said.

Ray Detter spoke on behalf of the downtown citizens advisory council. He said that CAC strongly supports the position of the Old West Side Association. He noted that 618 S. Main was unanimously approved by the planning commission. He pointed to the additional housing units. He allowed that the project exceeds the D2 height limit, but noted that as a “planned project” it provides commensurate benefit.

Dick Carlisle of Carlisle/Wortman Associates introduced himself as an owner and tenant of the South Main Market, located across Main Street from the proposed 618 S. Main project. He said he was very supportive of the project. He said that he and the other partners of South Main Market had achieved 100% occupancy of the market, but that’s because they’d invested a lot and worked hard at it. With any project as dense as 618 S. Main, there’ll be issues, he said, but he’s satisfied that they can work with this project. As one of the closest neighbors of the project, he said, they’re very supportive and hope it will get the city council’s support, too.

618 S. Main Site Plan: Council Deliberations–Bona fides

The council’s deliberations included a range of claims to connections to the neighborhood, which are extracted from this report’s summary of deliberations.

Mayor John Hieftje stated that he grew up in that neighborhood and that friends of the Fox family [owners of the former Fox Tent and Awning, which had been located on the 618 S. Main site] were friends of his family.

Sabra Briere (Ward 1) said she used to live next to the Washtenaw Dairy. [The popular shop is located less than a block away from the proposed project, at Madison and Ashley.] The Old West Side was her home for over a decade, Briere said. She bought Christmas trees at the lot where Fox Tent and Awning was located – because it was easy for her and her little boy to carry them home.

Stephen Kunselman (Ward 3) said he’d live in the Old West Side for half of his adult life, so he had a strong affinity for the neighborhood.

Carsten Hohnke (Ward 5) stated that as long as others had put their bona fides on the table, he wanted to mention that he used to work at Washtenaw Dairy: “So I see your living in the neighborhood, and [raise you a worked-at-the-dairy] …” The remark elicited laughs around the table.

618 S. Main Site Plan: Council Deliberations

Carsten Hohnke (Ward 5) led off deliberations by picking up on one of the comments made by Rita Mitchell during public commentary. He asked planning manager Wendy Rampson for the city staff’s perspective on the idea that the accommodation for the extra height – 85 feet compared to 60 feet – is a reflection that the A2D2 downtown rezoning process did not get the specific regulations for D2 exactly right.

Rampson responded to Hohnke by describing D2 as a wide-ranging district that interacts with neighborhoods in a variety of ways. She noted that on the other side of Ashley from the project site is a historic district (Old West Side) and the buildings in the historic district aren’t likely to expand in the same way as 618 S. Main. But she pointed out that those properties [including the Washtenaw Dairy] are zoned C2B (commercial).

Rampson also pointed out that originally there was no height limit for the proposed downtown districts, but the city council had felt it was important to include height limits. She noted that the 618 S. Main project is not using the full premium available in the D2 district – which would allow up to 400% FAR (floor-area ratio). The 618 S. Main project has a FAR of 355%. It was envisioned, Rampson said, that in some places it would be desirable to push a building to one side or another, and that would result in pushing the building taller.

Hohnke confirmed with Rampson that the site of the project itself was not in a historic district.

Hohnke then asked Rampson to summarize the public benefits of the project. Rampson mentioned that by increasing the height along Main Street, the setback on Ashley is increased. Hohnke also asked about streetscape improvements. Rampson indicated that she couldn’t speak to that, because that had been added after the project had been voted on by the planning commission. Hohnke indicated that he was content to leave that issue aside until the discussion of the brownfield plan.

View from the southeast of the 618 S. Main parcel.

Mayor John Hieftje indicated that the site had looked the same way for decades – but right now, it’s a parking lot encircled by a fence. Normally, he said, he’s not in favor of planned projects. But he appreciated the way the developer has worked with the community and with the design review board. Hieftje said he was moved by the fact that the project has met with approval at every stage. There seems to be a great deal of support for it, he said. The project deviates from the height limitation of D2 zoning, he noted, but provides public benefits.

Hieftje said he’s not troubled by the lack of retail in the project, because there’s plenty of retail across the street. He joked that building the 618 S. Main project might mean that people have to wait a little longer for an ice cream cone at Washtenaw Dairy [which is located at the southwest corner of Madison and Ashley, down the street from the 618 S. Main site].

Mike Anglin (Ward 5) noted that D2 was established for areas close to residential neighborhoods. The height limit of 60 feet seemed appropriate to provide a kind of transition from downtown to residential he said. But the proposed 618 S. Main project is 40% higher than the D2 zoning’s 60-foot height limit. He contended that it’s the first projected presented in a D2-zoned area, since the A2D2 zoning was approved. [As Sabra Briere (Ward 1) would point out later in the meeting, the Zingerman's Deli expansion, approved by the city council at its July 19, 2010 meeting, was also located in a D2-zoned area.]

Anglin mentioned that it’s the block where Washtenaw Dairy is located. The site is a prime area to develop, he said. During the public engagement process, he said, a lot was achieved, but not much was ever said about the 60-foot height limit. Anglin expressed an objection to the presentation of a building design at one of the early public meetings that was 60-feet tall, conforming to the zoning – with the subsequent conversation focused on the idea that the design was not very good, but could be made better, by making it taller. Anglin characterized that approach as a game of changing rules for each new player.

The D2 zoning district is supposed to be a transition into neighborhoods, Anglin said. The 60-foot height limit was determined by looking at what was currently close to neighborhoods and found that it averaged 60 feet, which fit in quite nicely, he said. He gave Liberty Lofts, a former factory at Liberty and First that was converted into condominiums, as an example.

Councilmember Mike Anglin (Ward 5).

As for community input, Anglin said, he characterized it as “organizational input,” but when someone at a public meeting raised the issue of height, Anglin contended, that was put aside very quickly. Anglin reported receiving a note from someone who attended a meeting – someone that Anglin characterized as an intelligent person who owns his own business. The gist of the note was that the ability to make the building taller and the support through brownfield financing reflected “double-dipping.” Anglin indicated that people are confused by the process of inviting development and paying for it. He did commend the architect and the developer for their work on the project.

Sabra Briere (Ward 1) said it was not often that she found herself in opposition to statements Anglin made about development.

At a recent meeting of the Ann Arbor DDA, Briere had run into an old neighbor from the time when she lived in the area of the 618 S. Main project. And she asked her former neighbor on Mosley how she felt about the project. When it was first proposed, Briere reported, her former neighbor said she was not happy. But now she said it’s really amazing and she thinks it’ll be good for the neighborhood.

Because her former neighborhood is not the most liberal or conservative person in town, Briere had listened carefully to what she’d said. Briere also pointed out that 618 S. Main is the second project to be proposed in a D2 zone, not the first, as Anglin had said. The first had been the Zingerman’s Deli expansion, which Briere said was easy to forget – because the Zingerman’s project was not residential and not very controversial.

Briere said she’d met with Ketelaar the previous week and had reflected on her own reservations about the project. The benefit of a “planned project” is that the accommodations that can be made can’t result in a greater number of units – that is, it can’t be denser.

By way of background, the relevant section of the city code on “planned projects” to which Briere was alluding reads as follows:

A planned project shall maintain the permitted uses and requirements for maximum density, maximum floor area and minimum usable open space specified in this Chapter for the zoning district(s) in which the proposed planned project is located.

Briere noted that in the course of the several public meetings and the city’s approval process, the project was amended over and over. She concluded that she supported the project.

Tony Derezinski (Ward 2) said he watched the project as it was considered by a number of bodies that he sits on – the planning commission as well at the DDA partnerships committee. He allowed that the D2 zoning “was on our minds.” He described the project as an “incredible piece of work” and said it was gratifying to see the very collaborative process. He characterized the 618 S. Main project as tall only on one side – and on the residential side, it’s short, he said.

Margie Teall (Ward 4) called the “planned project” approach a tool that should be used cautiously – but concluded that in the case of 618 S. Main, it had been used beautifully.

Marcia Higgins (Ward 4) ventured that the outcome of the A2D2 downtown rezoning process was that “we got D2 right.” The result of the D2 zoning, the design review board, and the planned project status allowed it to come together as an extraordinary project, she said.

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

Jane Lumm (Ward 2) expressed her appreciation for all the work than had gone into developing the A2D2 zoning, which happened before she won a seat on the council in 2011. Her perspective on the project was from the point of view of the DDA partnerships committee on which she serves. The focus of that committee’s work was on the TIF grant from the DDA. The policy guidelines that were created by the DDA, as well as the A2D2 zoning, all helped to create a great project, she said. The fact that the project adds to the diversity of the housing stock is important, Lumm said, as is the environmental cleanup of the site. She noted that the planning commission’s support had been unanimous. She concluded by indicating she supported the project.

Christopher Taylor (Ward 3) said he’d support the project, which he believes was the result of a process that is well-designed and works. It begins with the benchmark of D2 zoning, the citizen participation ordinance, the work of the city’s planning staff, input from the design review board, and the opportunity to deviate from the more rigid aspects of the zoning.

Taylor also mentioned the indicated market for the residents of the project – “workforce housing.” Taylor noted that councilmembers often hear references to that kind of housing. But when a developer says the project is intended for workforce housing, Taylor said it’s rare for him to sit at the council table and say to himself, “Yeah, that’s right!” In this case, however, he felt that considering the design of the units and their size and the type of amenities that are being provided, it was, in fact, a workforce housing project. He said he looked forward to seeing construction.

Councilmember Stephen Kunselman (Ward 3).

Stephen Kunselman (Ward 3) noted that there’d been reviews of D2 zoning mentioned – the Zingerman’s Deli expansion. He reminded his council colleagues of the denial of a request to rezone a D2 parcel (conditionally to D1) on South University. [That denial by the council came at its April 16, 2012 meeting]. It was denied unanimously, he said, because of what that would have meant in terms of setting a precedent. Kunselman allowed that the 618 S. Main project as a “planned project” had a different standard. But he felt that the additional 25 feet allowed for the 618 S. Main project could be analyzed as “capricious and arbitrary.” And he felt the council could be setting itself up for something – in terms of “how we play with our local speculators” compared to other developers from outside Ann Arbor.

Kunselman also said he saw the evolution of the project very differently from the “Kumbaya of how … this speculator worked with the community.” Kunselman characterized it as no different from “a speculator with a big smile on his face and a knife in your back.” The strategy used by the developer, he said, was essentially, “You give me what I want, or I’ll give you what you don’t want.” Kunselman contended that the “by right” alternative that had been shown was not feasible and not marketable – so that scenario could not be used as a baseline against which to compare the “planned project.” Even the project that was being proposed was “on a string” financially, Kunselman said – which the brownfield financing analysis showed.

Kunselman said he didn’t share the impression others had of Ketelaar’s approach. Kunselman contended that Ketelaar did the same thing with the 601 S. Forest project. [Ketelaar was involved early on with that apartment project, now called the Landmark Building]. It started with a shorter building, was then proposed to be taller, and then everyone worked together to reduce the height. That was a building, Kunselman contended, that started the discussion about height limits. Now the height limits were to be adjusted for one particular “speculator,” Kunselman said.

Kunselman said he’d attended one of the citizens meetings and he mentioned that he’d be opposing the project. He said that the fear people expressed was astounding – that the developer would build something else that was worse. He repeated the phrase: “a knife to the back and smile on the face.” Development should start from a fresh slate of honesty and integrity, working with the community in a truly cooperative fashion, Kunselman said. He reiterated his concern that the city would be setting itself up to need to defend height limits in other situations. He concluded that he’d be opposing the project.

Hohnke noted that the 618 S. Main project is in Ward 5, which he and Anglin represent. It’s in a sensitive location, across from a historic district that has a significant amount of character, Hohnke said. But it’s also in the DDA district, which is the “official downtown,” he noted, where the community has said we want denser development. Hohnke was impressed with the collaborative process. He felt that in all his conversations, he never heard anything like a threat to build something worse, if this project was not approved. Hohnke noted that the extra height had resulted in a 60-100 foot setback on the Ashley Street side of the project, which he called an “enormous improvement.” He’d heard from a number of residents, who said they had a lot of concerns but were impressed by how input was incorporated by the development team – from a family that has lived near the project site for over 40 years.

Hohnke felt that the right balance had been achieved. He couldn’t imagine how a project could have been managed better than 618 S. Main.

Outcome: The council voted to approve the 618 S. Main site plan, with dissent from Stephen Kunselman (Ward 3) and Mike Anglin (Ward 5).

618 S. Main Brownfield Plan: Council Deliberations

Marcia Higgins (Ward 4) led off by summarizing the work that the Ann Arbor DDA’s $650,000 grant would pay for: Main Street streetscape improvement costs (including the stretch from Mosley to Ashley Mews, which is well north of the 618 S. Main site); a rain garden to infiltrate stormwater, as opposed to detention-and-release; and upsizing a water main.

Andrew Cluley of WEMU interviews councilmember Marcia Higgins (Ward 4) after the June 18 meeting.

Higgins described the work on the streetscape improvements as an important part of transitioning from the proper downtown into the rest of the city, and described how the project would help establish a gateway to the city.

Higgins – who serves on the city council’s brownfield committee with Sandi Smith (Ward 1) and Stephen Kunselman (Ward 3) – reported that the committee had met twice to go over the project.

Higgins described the process for approval of the brownfield plan, which would need to go before the Washtenaw County brownfield redevelopment authority and the county board of commissioners before being forwarded to the state of Michigan. She ventured that within the next month or so, a decision would be made on the project by the state.

Higgins said that many brownfield projects would not go forward, if the brownfield financing were not available – because of the increased costs to the developer for cleanup of contamination. This isn’t the only project that needs this brownfield financing, Higgins said. She recalled that for the Zingerman’s Deli expansion, the owners of Zingerman’s had said that if they had not received approval of the brownfield plan, they would have needed to move out of the city of Ann Arbor – something she could not imagine.

The 618 S. Main project had met all the requirements. She asked the city’s environmental coordinator, Matt Naud, and the city’s chief financial officer, Tom Crawford, to step to the podium and explain the project.

Crawford explained that the site is in the DDA tax capture district. The tax capture in the plan totals $3.7 million. Of that, Crawford said, about $400,000 is related to the city of Ann Arbor – and the rest is taxes from other jurisdictions.

In a previous brownfield project, Crawford said, the city had approved interest as a cost to be covered – during the period when the developer had not yet completed the project, and was borrowing money until the point when the project was completed and was generating the TIF that reimbursed the developer for eligible costs. However, the state decided not to approve the interest, which mean that the city of Ann Arbor had to cover the interest. So for the 618 S. Main project, Crawford explained, the city is only approving interest as an expense, if the state agrees that it’s eligible. If the state does not agree to cover the interest, Crawford said, then Ann Arbor is held harmless.

One of the criteria used to evaluate the project, Crawford said, is whether the return to the developer on his investment is reasonable, or if public dollars are being used to generate an excessive return to the developer. In this case, the return was estimated at around 6%, which is lower than the city had seen for other projects, Crawford said.

Responding to a question from Higgins, Crawford explained that the tax capture on the increment goes to the DDA, which would be used by the DDA as part of the grant it had made to the project. The city receives taxes on the additional property value over time that’s attributed to inflation, Crawford said.

Naud added that there also is economic development associated with the construction of the project. After the fourth year of the DDA grant, Naud continued, the DDA would be capturing the full increment and would have that money available to make further reinvestments in the downtown area. Naud characterized the brownfield plan as leveraging a relatively small local investment to get a larger investment from the state.

Mayor John Hieftje stressed that the local contribution being made by the DDA does not use funds that exist now, but rather uses the new taxes that the developer pays on the additional value of the property. Hieftje also wanted to stress that the DDA’s $650,000 TIF grant had been initially proposed to be $725,000. He had asked at the June 6, 2012 meeting of the DDA board [on which he sits] that money be removed that would have paid for elements required of the developer by city code. Hieftje pointed to enthusiasm for the streetscape improvements that Mike Anglin (Ward 5) had expressed early on.

Jane Lumm (Ward 2) noted that the topic had been discussed since March by the DDA partnerships committee, on which she serves. A policy and a set of guidelines had been developed in the context of the history of DDA grants. There was a consensus, Lumm said, that the DDA doesn’t finance projects that don’t need it. The initial request had been for $1.3 million, she noted. A lot of effort had gone into ensuring that support was being given for public benefits, not private developer costs. She felt that the only way the project would work is with the brownfield financing, and she supported the brownfield plan.

Stephen Kunselman (Ward 3) indicated he would not support the brownfield plan. Later in the meeting, Carsten Hohnke (Ward 5) asked Kunselman if something had changed since the time that Kunselman had voted for the brownfield plan as a member of the city council’s brownfield committee. Kunselman indicated that he viewed his committee vote as parallel to the way that city councilmembers will sometimes vote for an ordinance change on initial consideration – in order to move it forward for additional public discussion – but will vote against it on final consideration by the council.

Kunselman characterized the brownfield plan as “highly speculative.” He stated that the DDA grant in support of off-site improvements – the streetscape on Main Street northward to Ashley Mews – is breaking new ground when it comes to financing public infrastructure. He expressed concern that there’d be no local control over low bids for that work if the developer was undertaking it.

Kunselman also expressed concern about the use of federal HUD [U.S. Dept. of Housing & Urban Development] financing. Kunselman noted that there’s another project in town that is hoping for HUD financing – on the site of the former Georgetown Mall. Given that there are other developments moving forward in downtown Ann Arbor with market-rate financing, Kunselman wondered why HUD financing was being used.

Kunselman also noted that Crawford had described how the rate of return for the developer is low – which Kunselman concluded meant that the project is speculative.

Kunselman also expressed concern about the Armen Cleaners site – at the northwest corner of Mosley and Ashley – which is contaminated. Once a hole is dug for underground parking, Kunselman contended, it changes the hydrology underground. The 618 S. Main project is not intended to clean up the Armen Cleaners site. Groundwater is 15 feet below grade, Kunselman said, based on Village Green’s City Apartments site at First and Washington. A number of changes had to be made to the City Apartments project, in order to accommodate the groundwater, he said. He said he wouldn’t be surprised if Ketelaar later asks for additional height to lift the building out of the groundwater.

Kunselman also ventured that the pollution from Armen Cleaners might be induced to spread after the hole is dug for 618 S. Main – because water follows the path of least resistance. He allowed that “smart people” will tell us that this has been analyzed and that this scenario won’t happen, but Kunselman insisted that “we don’t know.”

Kunselman dismissed the reduction of the DDA’s TIF grant from $725,000 to $650,000 as “a pittance” compared to the amount of money that will be going into the project.

He also expressed concern that the 618 S. Main project would be competing with Georgetown Mall for brownfield and HUD money. [Later during deliberations, Higgins got clarification from Matt Naud, the city's environmental coordinator, that the two projects were not in competition – because the brownfield plan for the Georgetown Mall site has already been approved by the state.] He called the brownfield plan “padding” for the developer.

Sabra Briere (Ward 1) noted that she’d attended several DDA partnerships meetings. At those meetings, she reported, Kunselman’s question about modeling the hydrology for the impact of 618 S. Main on the contamination at Armen Cleaners had been raised, and answered. John Byl, attorney with Warner Norcross & Judd LLP who’s worked for the development team on the brownfield aspects of the project, told Kunselman it’s an excellent question and it had been raised. Hydro-geologists had been retained and a report had been submitted to the DDA – the conclusion was that it wouldn’t have an impact on the Armen Cleaners site.

Anglin asked about the wells that were used to monitor the site. He expressed skepticism that there was significant contamination at the site that would warrant brownfield status.

Kunselman came back to the question of the impact of groundwater on the 618 S. Main construction. He wanted to know if the model that concluded there’d be no impact on the Armen Cleaners site included any pumping of groundwater associated with dewatering of the site. Byl indicated that not a lot of dewatering was expected, but Kunselman expressed skepticism that would be the case. Bob Wanty of Washtenaw Engineering told Kunselman that the amount of dewatering was expected to be nominal. The footings are about two feet above the high water elevation, so there’d be minimal dewatering for footings. “And if you’re wrong?” asked Kunselman. “That’s what the tests show,” Wanty replied.

Kunselman wanted to know if additional dewatering was needed, if that changed the model for the impact on the Armen Cleaners site. Wanty explained that a trimming seal would be put down so that not a lot of dewatering would be necessary. Kunselman asked additional questions that confirmed there would be a connection to the city’s stormwater system to provide for the possibility that the rain garden’s capacity for infiltration was exceeded.

City of Ann Arbor chief financial officer Tom Crawford (back to camera) returns to the podium after conferring with the 618 S. Main development team to get an answer to a question from Mike Anglin (Ward 5).

Responding to questions from Carsten Hohnke (Ward 5), Naud clarified that not all of the eligible expenses that a brownfield plan can cover are just environmental cleanup. A brownfield plan can also cover the additional costs associated with infill development. He also clarified that the burden is on the developer – because you have to actually build something, achieve an increment in value on the property, and then the taxes paid by the developer on that increment are what drive the financing in the brownfield plan. Only the actual expenses incurred by the developer are reimbursed. The taxes the city is already receiving would continue to be received, Naud said. Compared to other communities, Naud said, Ann Arbor does a lot of review for these proposals.

Responding to a question from Hohnke, Naud indicated that there would be full remediation of contaminated soils on a “dig and haul” basis.

Lumm commended the DDA for the development of their brownfield policy, which took two months to craft. She stressed that the brownfield money is not paid upfront. It can’t be used to cover the developer’s land cost, for example.

Anglin asked Crawford how much of the project was hoped to be financed through HUD. After conferring with Ketelaar, Crawford told Anglin about 75-80%.

Outcome: The council voted to approve the 618 S. Main brownfield plan, with dissent from Stephen Kunselman (Ward 3) and Mike Anglin (Ward 5).

Medical Marijuana Licensing Ordinance

On the city council’s June 18 agenda were revisions to Ann Arbor’s medical marijuana licensing ordinance – which the council enacted a year ago on June 20, 2011.

The proposed ordinance revisions, recommended by the city’s medical marijuana licensing board at its Jan. 31, 2012 meeting, had already been considered and postponed once before, at the council’s April 2, 2012 meeting. The licenses that the board recommended be granted to 10 dispensaries citywide – recommendations also made at the board’s Jan. 31 meeting – have not yet come before the city council for final action.

The board-recommended revisions to the medical marijuana licensing ordinance are laid out in detail in The Chronicle’s coverage of the medical marijuana licensing board’s Jan. 31, 2012 meeting. [.pdf of recommended licensing ordinance revisions] Representative of the revisions is a change that strikes the role of city staff in evaluating the completeness of a license application. The following phrase, for example, would be struck: “Following official confirmation by staff that the applicant has submitted a complete application …” The changes also establish a cap of 20 licenses, and grant the city council the ability to waive certain requirements.

Mayor John Hieftje and councilmember Sabra Briere (Ward 1).

Council deliberations were brief. A move to postpone the medical marijuana ordinance revisions came at the start of deliberations, and was made by Sabra Briere (Ward 1), who serves as the city council’s representative to the medical marijuana licensing board. In arguing for postponement, she cited pending state legislation for regulating medical marijuana that could result in a need to further amend the city’s ordinance. Pending legislation includes House Bill 5681 (which would amend the public health code and create a “pharmaceutical-grade cannabis program”) and House Bill 5580 (which would give local authorities the option to allow dispensaries and testing facilities).

Briere invited city attorney Stephen Postema to comment on the pending legislation. He described the local option as allowing municipalities to regulate dispensaries in a manner similar to the way that Ann Arbor does. He expressed uncertainty about the likelihood that some of the legislation would pass – given that an amendment to a voter-initiated piece of legislation, like the 2008 Michigan Medical Marijuana Act, requires a 75% majority vote in the Michigan legislature.

Briere moved for postponement.

Outcome: The council voted unanimously to postpone action on revisions to the medical marijuana licensing ordinance until Oct. 1.

FY 2012 Budget Adjustments

The council was asked to amend the budget for its current fiscal year to bring actual expenditures in line with budgeted amounts – so that the city’s various funds do not show an excess in expenditures over budgeted amounts for the year. The amendments are necessary in order to conform with Act 621 of 1978 (Uniform Budgeting and Accounting Act).

The council’s action bumped the general fund expense budget from $79,642,485 to $80,993,946 – an increase of $1,351,461. According to a staff memo accompanying the budget resolution, city staff are still projecting that a little less than $0.5 million of fund balance will need to be used for the year, due to other offsetting expenses.

For the general fund, some of the larger adjustments included: tax refunds higher than budgeted ($444,700); police services severances greater than budgeted ($250,000); two unbudgeted elections ($165,000) and a golf fund subsidy that was higher than budgeted ($131,761). [.pdf of all adjustments]

The bulk of the adjustment outside the city’s general fund was for bond refinancing at a lower interest rate ($2,758,100).

Council deliberations were brief. Jane Lumm (Ward 2) indicated she did not have a problem with the adjustments. But she indicated to city chief financial officer Tom Crawford that in a prior communication to the council, Crawford had been more confident that the city would end the year by essentially breaking even. She asked if the projected deficit [of $0.5 million] reflected Crawford being conservative or if things had actually deteriorated a bit.

Crawford told Lumm that he still felt the city would be close to breaking even. The reason the amendment is necessary, Crawford said, is that expenditures are approved by fund and by agency – and favorable news in one area can’t automatically offset negative news in another area, due to the way that expenses are approved. He believed the city would come close to breaking even, despite that evening’s necessary amendments to the budget.

Outcome: The council voted unanimously to approve the FY 2012 budget adjustments.

Human Services Allocations

The council was asked to authorize allocations totaling $1,244,629 to different nonprofits that provide human services. The amount was set as part of the FY 2013 budget, which the city council approved on May 22, 2012. That amount reflected a $46,899 increase to the amount in the proposed budget – an increase that was approved with the budget on May 22.

The process of making allocations followed a “coordinated funding” approach, as the city worked in concert with the Ann Arbor Area Community Foundation, the United Way of Washtenaw County, Washtenaw County, and the Washtenaw Urban County to make the allocations. That approach was approved by the city council on Nov. 4, 2010.

The total amount allocated through the coordinated funding process is expected to be $4,285,089, from the following sources: Ann Arbor ($1,244,629); United Way of Washtenaw County ($1,677,000); Washtenaw County ($1,015,000); and Washtenaw Urban County ($348,460).

Proposals from nonprofits for funding exceeded the amount allocated by $2,295,428. The five priority areas used to evaluate proposals were aging, early childhood, housing & homelessness, safety-net health, and school-aged youth. A sixth priority area (hunger relief) was identified as a “sole-source activity” that’s provided by Food Gatherers, and wasn’t included in the evaluation process.

The largest awards made to 73 different programs included: $276,766 from the United Way to The Corner Health Center’s patient assistance and care management program; $204,892 from the United Way Safety Net Health Services to Catholic Social Services of Washtenaw’s program for maintaining the independence of older adults; $207,551 from the city of Ann Arbor to the Shelter Association of Washtenaw County’s residential program. [Google Spreadsheet of all awards compiled by The Chronicle]

Deliberations were brief. Jane Lumm (Ward 2) said it was a pleasure to serve on the city’s housing and human services advisory board with Sandi Smith (Ward 1). Lumm said she was pleased that the budget was amended to increase the allocation. She described the allocation process as “robust” and said it ensured that the dollars are used wisely and leveraged as much as possible. She said the coordinated funding approach works well and that the amounts allocated to the different nonprofits were “reasonable and studied.”

Outcome: The council voted unanimously to make the $1,244,629 in human services allocations.

Trucks and Plows

The council considered the purchase of 11 dump trucks and four front plows from Wolverine Truck Sales. The total cost of the vehicles and equipment was $1,548,376.

The 11 trucks to be replaced with the new vehicles are described in a staff memo accompanying the resolution as averaging $14,000 in repairs each for the last five years. Most of them date from 1999-2001. The dump bodies for some of the trucks are described as rusted out to the point that they would need to be replaced – at a cost of $30,000.

The plows to be replaced date from 1979–1981, and have a fixed angle. The new plows will have an angle that’s adjustable by the driver from inside the cab.

The money for the trucks and plows will be taken from the approved FY 2012 budget for fleet and facilities.

Jane Lumm (Ward 2) noted that the expenditure is not insignificant. She said she had inquired about the city’s vehicle inventory and felt the size of the fleet is not unreasonable for a community Ann Arbor’s size.

Sabra Briere (Ward 1) noted the possible $30,000 per truck cost for some of the repairs and the ongoing repair costs for the vehicles. She also highlighted the fact that the city is anticipating that the trucks the city is purchasing will last longer because they have stainless steel bodies. The best part, Briere said, is the replacement of the snowplows – because instead of a fixed angle, they’ll be adjustable. Drivers will have a lot more control to tackle whatever snow we have, she concluded. Mayor John Hieftje said he appreciated the point Briere had made about the stainless steel.

Outcome: The council unanimously approved the purchase of the 11 trucks and 4 snowplows.

Stormwater Study

The council was asked to approve a $822,700 contract with CDM Michigan Inc. for a stormwater analysis project. The project has five phases: (1) collect stormwater GIS data; (2) integrate the GIS with the model information and gather general monitoring data; (3) engage the public and perform preliminary model calibration; (4) gather comprehensive monitoring data and finalize model calibration; and (5) analyze modeling results and engage creekshed groups/neighborhoods.

In 2007, CDM was hired to complete the first two phases of the project. The contract considered by the council on June 18 is supposed to allow completion of the project.

Outcome: The council approved the stormwater study without discussion.

Ann Arbor SPARK Contract

The council considered a $75,000 contract with the economic development agency Ann Arbor SPARK.

The contract has been renewed annually since the Washtenaw Development Council and Ann Arbor SPARK merged in 2006. Previously, Ann Arbor had contracted with the WDC for business support services for which it now contracts with SPARK. On June 20, 2005, the city council authorized that one-year contract with WDC for $40,000. This year’s $75,000 contract with SPARK describes the organization’s focus the same way it did last year, as “building our innovation-focused community through continual proactive support of entrepreneurs, regional businesses, university tech transfer offices, and networking organizations.”

Ann Arbor SPARK is also the contractor hired by the city’s local development finance authority (LDFA) to operate a business accelerator for the city’s SmartZone, one of 11 such districts established in the early 2000s by the Michigan Economic Development Corp. (MEDC). The SmartZone is funded by a tax increment finance (TIF) mechanism, which in the current fiscal year captured around $1.5 million in taxes from a TIF district (the union of the Ann Arbor and Ypsilanti Downtown Development Authority districts, though revenue is generated only in Ann Arbor’s district.) The specific taxes on which the increment since 2002 is captured are the school operating and state education taxes, which would otherwise be sent to the state and then redistributed back to local school districts.

For recent Chronicle reporting on the LDFA and its relationship with SPARK, see: “SmartZone Group OKs SPARK Contract.”

SPARK’s contract was included on the city council’s consent agenda, which consists of items involving less than $100,000. Consent agenda items are considered routine, and are voted on as a set. Any councilmember can pull out an individual item for separate discussion, which Sabra Briere (Ward 1) chose to do for the SPARK contract.

She had posed some questions about the contract before the meeting, which Skip Simms, SPARK’s vice president for entrepreneurial business development, had answered. So at the meeting, Briere asked Simms to the podium to provide the answers publicly. Simms did not have the written material in front of him, and Briere ended up essentially reporting on the information she’d received.

In summary strokes, she’d been told that in 2011 SPARK specifically recruited 20 companies to locate in Ann Arbor, and of those 20, 12 had moved into the city of Ann Arbor. Of those 12, according to SPARK, five had no knowledge, relationships or inclination to locate in Ann Arbor before 2011.

The companies that moved to Ann Arbor employ a total of 143 people.

Briere asked what kind of companies these are that moved to Ann Arbor. Simms explained that they are primarily technology and IT-based – software developers, for example. Simms indicated that the reason such companies relocated to Ann Arbor is that Ann Arbor has that kind of talent. In most cases, Simms continued, the companies are expanding. That expansion is sometimes accomplished by transferring an executive to Ann Arbor, who then starts up a new location for the company in Ann Arbor.

Marcia Higgins (Ward 4) noted that the city has had this line item to contract with SPARK for several years, and noted that it had been increased a few years ago to $75,000 per year. She indicated she was happy to support the contract – because SPARK was able to entice companies to relocate to Ann Arbor with only a minimal amount of money. Simms contended that with $405,000 of city of Ann Arbor support over the last five years, SPARK had aided companies that had committed to $177 million worth of build-out, investments in projects and new equipment, and those companies have created 3,886 jobs, he said.

Jane Lumm (Ward 2) thanked Simms for responding to the questions and told Simms that SPARK is great at what it does. She also noted that SPARK is partnering with the Pure Michigan campaign. Simms described a video that SPARK has produced that will promote the whole area. Lumm said the work that SPARK does – to help start-up companies and incubate new companies – is important. She allowed that it’s difficult to measure, but contended that SPARK is bringing added value. Lumm indicated she’d seen the video, which she praised as looking like something straight out of Madison Avenue.

Outcome: The council unanimously approved the $75,000 SPARK allocation.

Ann Arbor Contract with Lobbyist

At its June 18 meeting, the city council was asked to approve a $48,000 contract with Governmental Consultant Services Inc., a Lansing-based lobbying firm. It’s a one-year contract for fiscal year 2013, which starts July 1, 2012. The funds were part of the city administrator’s office budget, in the FY 2013 budget approved by council on May 22, 2012. The contract is the same amount as last year.

According to a staff memo accompanying the resolution, “GCSI has provided excellent work in the areas of legislation monitoring along with advocating fire protection grants and comprehensive corridor planning.”

GCSI’s Kirk Profit, a former member of the state House of Representatives representing the eastern part of Washtenaw County, typically makes an annual presentation to the council with an update on state-level legislative issues relevant to the city’s budget situation. Written updates to councilmembers on legislative activity are sent on a weekly or daily basis.

GCSI also has a contract with Washtenaw County and several other local units of government.

The GCSI contract was included on the city council’s consent agenda, which are items involving less than $100,000. Consent agenda items are considered routine, and are voted on as a set. No one pulled out this item for separate discussion.

Outcome: The council unanimously approved the GCSI lobbying contract as part of its consent agenda.

Nominations: Boards and Commissions

Four nominations were made at the council meeting – to the planning commission, the greenbelt advisory commission and the environmental commission. Nominations to the planning commission are made by the mayor, with confirmation by a vote of the city council at the meeting following the nomination. Most of the other boards and commissions of the city follow that pattern.

However, nominations to the environmental commission and the greenbelt advisory commission are made by the council as a body and then also voted on by the council. The council will vote on all four nominations at its July 2, 2012 meeting.

Planning Commission: Ken Clein, Kirk Westphal

Mayor John Hieftje announced his nomination to replace Erica Briggs on the city planning commission: Ken Clein, a principal with Quinn Evans Architects. Briggs did not seek re-appointment.

Among the architectural projects Clein has worked on locally are the University of Michigan’s Hill Auditorium renovation, the new Ann Arbor municipal center, and the Zingerman’s Deli expansion.

Hieftje also announced that he was nominating Kirk Westphal for re-appointment to the planning commission.

The city council will vote on the appointments of Clein and Westphal at its July 2 meeting. City planning commissioners serve three-year terms.

Environmental Commission: John German

The council’s nomination to re-appoint John German to the city’s environmental commission was made by Sabra Briere (Ward 1). She is the city council’s appointee to that commission. German’s term expired in August 2011, but he has continued to serve. The council will be asked at its next meeting to re-appoint him retroactively for a three-year term ending on Aug. 7, 2014.

German’s background includes work with Chrysler, the U.S. Environmental Protection Agency, Honda, and the International Council for Clean Transportation.

Ann Arbor’s environmental commission was established 12 years ago through a city ordinance, with the charge to “advise and make recommendations to the city council and city administrator on environmental policy, environmental issues and environmental implications of all city programs and proposals on the air, water, land and public health.”

Greenbelt Advisory Commission: Archer Christian

Carsten Hohnke (Ward 5), the city council appointee to the greenbelt advisory commission, announced Archer Christian as the council’s nomination to replace Mike Garfield on the city’s greenbelt advisory commission. Garfield is director of the Ecology Center, a nonprofit based in Ann Arbor, and Ms. Christian is the center’s development director. The council will vote on the nomination at its July 2 meeting.

The greenbelt advisory commission oversees the proceeds generated by two-thirds of the city’s open space and parkland preservation millage, which is levied at a rate of 0.5 mills.

Garfield is term-limited as a GAC member, having served two consecutive three-year terms. The spot vacated by Garfield is not designated for a representative of the Ecology Center. However, the 109-member commission includes two slots for representatives of environmental and/or conservation groups.

In his remarks at the June 18 council meeting, Hohnke highlighted Christian’s masters degree in crop and soil science. Hohnke also praised Garfield’s service on land preservation from the very beginning of the greenbelt initiative and thanked Garfield for his many years of leadership.

At GAC’s June 7 meeting, Christian briefly had addressed the commission, saying that as long as she can remember, she has wanted to be a farmer. Being able to translate that passion into helping preserve land in the greenbelt would be an honor, she told them. She gave a brief overview of her background, including the fact that she started at the Ecology Center four years ago as grants director, and became development director in January of 2012.

Christian told commissioners that she’s lived in Ann Arbor for eight and a half years, and it feels like home. Being in a forward-thinking community is a delight beyond measure, she said. [.pdf of Christian's résumé]

Communications and Comment

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

Comm/Comm: Ann Arbor Marathon

As a part of his city administrator’s report, Steve Powers noted the running of the Ann Arbor marathon, which had taken place the previous day.

Ann Arbor city administrator Steve Powers.

A number of complaints had been received about disruption caused by the race. Powers asked councilmembers to forward complaints from constituents to him. The city staff is reviewing the event and would appreciate hearing from councilmembers’ constituents, Powers said.

Comm/Comm: Green Streets

During public commentary at the start of the meeting, Valerie Strassberg introduced herself as chair of the city’s water committee, a subset of the environmental commission. She called the city council’s attention to a communications item on the agenda. That item includes the environmental commission’s resolution in support of a green streets policy. She hoped Sabra Briere (Ward 1), who serves as the city council’s representative to the environmental commission, will bring that resolution forward to the council for the July 2 meeting. The idea of the green streets initiative is for city staff to look at green streets as a formal process. Right now, when the city reconstruct roads, the project includes a look at what can be done to integrate green infrastructure – planting vegetation, bioswales, curbs, bump-outs and other devices to control runoff.

From the communications item Strassberg mentioned:

The terms Green Streets or Green Infrastructure are adaptable terms used to describe an array of products, technologies, and practices that use natural systems – or engineered systems that mimic natural processes – to enhance overall environmental quality and provide utility services. Green Streets usually treat and/or infiltrate storm water which improves water quality and reduces the volume and rate at which stormwater leaves the street.

Currently, those features are considered when the city undertakes a project, she said, but it’s not the norm. Sylvan Avenue [which was reconstructed using permeable pavement] is an example, as is the city hall’s rain garden. But those are the exceptions, she said, not the norm. The resolution would allow staff to explore opportunities to make those kind of features “the norm,” Strassberg said. She asked councilmembers to give the resolution consideration when it comes across their desks.

The environmental commission’s resolution includes the “resolved” clause that asks the city council to give direction to the city staff:

RESOLVED, that the Ann Arbor Environmental Commission is fully supportive of the Green Streets Initiative of the Environmental Commission Water Committee, and hereby recommends Ann Arbor City Council directs City Staff (from the Systems Planning, Project Management, and Field Operations Units of Public Services; Parks and Recreation, and Planning from Community Services) to work with the Environmental Commission in the development of a Green Streets policy.

Later in the meeting, Briere indicated she intended to bring forward a green streets resolution to the council’s July 2 meeting.

Comm/Comm: Countywide Transit

Sabra Briere (Ward 1) reported to her colleagues on the result of a committee meeting held earlier that day on possible amendments to the 4-party agreement and articles of incorporation that are associated with a possible expansion of governance and service area of the Ann Arbor Transportation Authority. The four parties to the agreement are the cities of Ann Arbor and Ypsilanti, Washtenaw County and the AATA.

The cities and the AATA have approved the documents. But now the Washtenaw County board of commissioners has begun to focus on the document details. Briere noted that a June 14 working session of the county board, which had included AATA staff and legal counsel, had resulted in the airing of specific concerns by commissioners, who had suggested amendments to the documents. [Chronicle coverage: "Differences on Countywide Transit Debated"]

A committee with representation from each of the parties met the afternoon of June 18, Briere reported. [Members of the committee are: Sabra Briere and Christopher Taylor (Ann Arbor city council); Paul Schreiber and Pete Murdock (Ypsilanti mayor/city council); Conan Smith and Alicia Ping (Washtenaw County board); Jesse Bernstein and Charles Griffith (AATA board); David Read and David Phillips (U196 board).]

The committee’s consensus was that the possible amendments would not be brought before the city councils of Ann Arbor and Ypsilanti or the board of the AATA at this time, and that the original language would be allowed to stand. The choice of phrasing by Briere resulted in some confusion.

Later in the Ann Arbor city council meeting, Jane Lumm (Ward 2) clarified that there will still be a formal vote by the Washtenaw County board of commissioners. Taylor stressed that it’s a matter of the other three parties declining to bring the county board’s amendments to their respective bodies.

Comm/Comm: Local Action on Energy Conservation

During public commentary, Kermit Schlansker told the council that the real argument about global warming is whether we should try to save energy or not. The Ann Arbor city council has shown almost no interest in saving the planet for our children, he said. Unless there’s a decided shift in local government goals, we’ll gradually become poorer and poorer as national resources become more scarce. Europe uses about half the energy per capita that U.S. residents do, he said. That’s because there are more apartment houses in Europe and more compact cities, more public transportation and smaller cars, he said.

An apartment house is an energy conservation device that “costs nothing and can live for 1,000 years,” Schlansker said. The whole cost of the building can be charged to habitation, which means the energy costs nothing, he said. An apartment building saves energy by using about 25% of the heating energy as a house, he said. More compact cities reduce the need for travel, and there is ready access to farmland, so that people can grow food.

The city needs to start a project consisting of an apartment house on farmland – because that’s the only way we can care for poor people in the coming time of universal poverty, Schlansker said. He called for planting trees as the best way to store carbon. Fruit and nut trees can be planted to provide cheap food for future generations. Local generation of food by the local population is a must, he said. Sewage needs to go back into farmland, not into the rivers, he said. Engineering research groups need to be formed to create energy-saving devices.

Schlansker concluded by saying that the problems of the future are just as much the responsibility of local governments as they are for the federal government. All the steps necessary for energy sustainability – aside from nuclear power – are a “part of local living,” Schlansker said. He suggested that the role of governments is to create models of ideal systems that could be implemented by private enterprise. If local governments do some of the right things, he said, President Barack Obama will follow – but “he needs our help.”

Comm/Comm: Crosswalks, Sight Distance

Kathy Griswold told the council she wanted to provide them with an update on two topics she’s commented on in the past. The first was a sidewalk construction project near King Elementary School that would allow moving the crosswalk from a midblock point to an intersection where there’s a four-way stop. [The new sidewalk would extend from the northeast corner the Waldenwood and Penberton intersection to a path that continues to the school building.] Griswold described the project as funded and at one point staked out, but then was stopped. She told the council that the city staff had determined the crossing was unsafe, and had thus deployed a crossing guard at that location, which she described as requiring recurring dollars. If crossing guards were to be provided, she said, then all locations should be considered and prioritized based on those that are the most dangerous.

Griswold also objected to the continued mowing by the city of private property near streets. Griswold told the council that former public services area administrator Sue McCormick had told Griswold that it bothered her, too. When visibility is obstructed, she said, private property owners need to be notified so that the private property owners can take care of it. She highlighted Glacier Way and Huron Parkway as areas that need attention.

Comm/Comm: Camp Take Notice

Thomas Partridge told the council he was there as a resident of city of Ann Arbor and of the county, as a grandfather, and as a Democratic candidate for 53rd District of the Michigan house of representatives. He called for expansion of integrated human services, including affordable housing – in the context of what he described as the housing crisis of Camp Take Notice, an encampment off of Wagner Road [on state-owned land in Scio Township]. He called for emergency housing shelter as well as transitional housing. He called for an expansion of affordable transportation – countywide and regionwide. He told councilmembers they should set special interests like medical marijuana aside.

Partridge said it was important to work to re-elect President Barack Obama, to advance the goals of Ann Arbor, the state and the nation. Returning to the topic of Camp Take Notice, he said that now is a time of crisis for the people who live there, living in a tent city without protection from the environment. They’re under a brutal eviction order from the Michigan Dept. of Transportation, he said. [The camp is on MDOT land.] Partridge called on Gov. Rick Snyder to revoke the eviction order.

Later in the meeting, Sabra Briere (Ward 1) asked mayor John Hieftje to give an update on Camp Take Notice. Hieftje indicated that MDOT is working with all human services providers in the community at the city, county, and state levels. Housing vouchers will be provided, he said. The Delonis Center will provide some help for people in transition. And all-out effort is being made to make sure a place is found for everyone. Hieftje said he expected conditions will be better than at camp itself. [As an example, at its June 6, 2012 meeting, the Washtenaw County board of commissioners authorized a grant agreement for up to $60,000 in emergency housing assistance for residents facing eviction from Camp Take Notice.]

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

Absent: Sandi Smith.

Next council meeting: Monday, July 2, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [Check Chronicle event listings to confirm date]

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The proposed ordinance revisions, recommended by the city’s medical marijuana licensing board at its Jan. 31, 2012 meeting, had already been considered and postponed once before, at the council’s April 2, 2012 meeting. The licenses that the board recommended be granted to 10 dispensaries citywide – recommendations also made at the board’s Jan. 31 meeting – have not yet come before the city council for final action.

The board-recommended revisions to the medical marijuana licensing ordinance are laid out in detail in The Chronicle’s coverage of the medical marijuana licensing board’s Jan. 31, 2012 meeting. [.pdf of recommended licensing ordinance revisions] Representative of the revisions is a change that strikes the role of city staff in evaluating the completeness of a license application. The following phrase, for example, would be struck: “Following official confirmation by staff that the applicant has submitted a complete application …” The changes also establish a cap of 20 licenses, and grant the city council the ability to waive certain requirements.

The move to postpone the medical marijuana ordinance revisions came at the start of deliberations, and was made by Sabra Briere (Ward 1), who serves as the city council’s representative to the medical marijuana licensing board. In arguing for postponement, she cited pending state legislation for regulating medical marijuana that could result in a need to further amend the city’s ordinance. Pending legislation includes House Bill 5681 (which would amend the public health code and create a “pharmaceutical-grade cannabis program”) and House Bill 5580 (which would give local authorities the option to allow dispensaries and testing facilities).

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]

The ordinance change that the council would have considered would have eliminated from the zoning ordinance one sentence: “Medical marijuana dispensaries and medical marijuana cultivation facilities shall be operated in compliance with the MMMA (Michigan Medical Marijuana Act).” [.pdf of the recommended zoning ordinance change.

The recommendation for the change in the ordinance language had originally come from the city's medical marijuana licensing board. At its April 2, 2012 meeting, the city council then directed the city planning commission to consider the licensing board's recommendation. The planning commission then reviewed and considered the recommendation at its May 1, 2012 meeting, voting unanimously against striking the sentence in the zoning ordinance. The change would have likely not had majority support on the city council, if it had remained on the June 4 agenda.

From a practical point of view, striking the sentence has implications for the timing of the decision point for granting dispensary licenses: Is the decision made by the city council or by city staff? [See Chronicle coverage: "Ann Arbor Marijuana Licenses: Who Decides?"] For the first round  of license applications, submitted after the council approved a licensing and zoning ordinance, the medical marijuana licensing board has recommended the award of licenses to 10 dispensaries, some of them conditionally. No licenses have been awarded.

The decision to remove the item comes amid an uncertain legislative and judicial environment in Michigan regarding medical marijuana.

The city’s medical marijuana licensing board had recommended one change – to strike the following sentence from the zoning ordinance: “Medical marijuana dispensaries and medical marijuana cultivation facilities shall be operated in compliance with the MMMA (Michigan Medical Marijuana Act).” [.pdf of the recommended zoning ordinance change]

The board’s recommendation had been sent to Ann Arbor city council. But at their April 2, 2012 meeting, councilmembers voted 9-1 to instead direct the planning commission to review the medical marijuana zoning ordinance. The councilmember voting against that direction was Tony Derezinski (Ward 2), who also serves as a planning commissioner.

In a staff memo to planning commissioners, planning staff had recommended denial of the ordinance change. From the memo: “Without this provision in the City’s ordinance, there would be no way for staff to distinguish between a use legally allowed under the MMMA and a clearly illegal one. For instance, if the provision is removed, an applicant claiming to be a medical marijuana dispensary could comply with zoning, but actually be an illegal drug operation. Finally, keeping this provision in the list of requirements for the establishments for a medical marijuana dispensary or cultivation facility serves to clarify for potential applicants that the City will not approve a facility that is inconsistent with state law.”

There was only brief discussion of the resolution, and all commissioners seemed in agreement. Diane Giannola noted that if she were asked to insert the sentence, she’d argue that it wouldn’t be necessary – it’s implied that state law should be followed. But deleting the sentence would indicate that people don’t have to comply with state law, she said, and that bothered her. Evan Pratt said that leaving the sentence in place makes the ordinance less ambiguous.

Kevin McDonald of the city attorney’s staff was present at the meeting, but did not formally address the commission and was not asked any questions by commissioners.

Only one person spoke during the public hearing on the item. Dennis Hayes asked commissioners to remove the sentence from the ordinance – it’s inappropriate and unnecessary for zoning.

This proposed zoning ordinance change was one of three medical marijuana-related items that city council considered at its April 2 meeting. The other items were (1) revisions to the city’s medical marijuana licensing ordinance; and (2) direction to the city attorney to delay enforcement action against those dispensaries for which the city’s medical marijuana licensing board has recommended licenses. The council had unanimously postponed consideration of the licensing ordinance revisions until the council’s June 18 meeting.

And on a 6-4 vote, the council had tabled the resolution directing the city attorney to delay enforcement activities until the revisions to the local ordinances have been either adopted or rejected. A tabled resolution will demise if it’s not brought back off the table in six months.

For additional background, see Chronicle coverage: “Tension Grows in Medical Marijuana Debate,” and “Ann Arbor Marjiuana Licenses: Who Decides?”

This brief was filed from the second-floor council chambers at city hall, 301 E. Huron St., where the planning commission holds its meetings. A more detailed report will follow: [link]

Ann Arbor city councilmembers Sabra Briere (Ward 1) and Tony Derezinski (Ward 2). (Photo by the writer.)

Part 1 of this meeting report focuses just on the medical marijuana-related items. In a separate article, The Chronicle has analyzed some of the key issues at stake: “Ann Arbor Marijuana Licenses: Who Decides?”

In front of the council for its consideration were three separate agenda items involving medical marijuana: (1) revisions to the city’s medical marijuana licensing ordinance as recommended by the licensing board; (2) direction to the city planning commission to make a recommendation on revisions to the city’s medical marijuana zoning ordinance; and (3) direction to the city attorney to delay enforcement action against dispensaries.

The council unanimously postponed consideration of the licensing ordinance revisions until June 18 – the council’s second meeting that month. During deliberations on the licensing ordinance, several councilmembers expressed concerns about the board-recommended revisions, in particular one that would allow the city council to waive requirements of the licensing ordinance for a dispensary.  In postponing, councilmembers wanted to give the planning commission enough time to act on its direction to review the medical marijuana zoning ordinance and give a recommendation to the city council. The intent is to bring forward any changes to the licensing and zoning at the same time.

The direction to the planning commission passed on a 9-1 vote, with dissent from the Tony Derezinski (Ward 2), who is the city council’s representative to the planning commission. [Marcia Higgins (Ward 4) was absent, leaving the 11-member council with 10 members present.]

The council tabled the resolution directing the city attorney to delay enforcement activities. The tabling was achieved on a 6-4 vote. Voting against the tabling were mayor John Hieftje, Sabra Briere (Ward 1), Margie Teall (Ward 4) and Mike Anglin (Ward 5). A tabled resolution will demise if it’s not brought back for consideration in six months.

The medical marijuana licensing board made recommendations on the award of licenses to 10 dispensaries at its  Jan. 31, 2012 meeting. Given remarks made at the council’s April 2 meeting by Sandi Smith (Ward 1), Carsten Hohnke (Ward 5) and Stephen Kunselman (Ward 3), there’s some sentiment in support of having the council go ahead and vote on those recommendations – before the council considers ordinance revisions in June. But it’s not clear whether the city attorney’s office would be prepared before June to provide advice on the license awards.

This report includes coverage of public commentary and council deliberations on the medical marijuana items, presented in detail. Other agenda items from the April 2 meeting will be included in a separate forthcoming report.

Medical Marijuana: Public Commentary

Luis Vazquez told the councilmembers he was standing before them as an Ann Arbor resident. He noted that he paid a lot of money in taxes. Of all the things the city attorney could and should be spending time and taxpayer money on, the recent actions of the city attorney on medical marijuana dispensaries are questionable – in light of the desire of Ann Arbor residents to have safe access points for medical marijuana, he said. He reminded the council that in 2004, three out of four Ann Arbor voters supported the city charter amendment on medical marijuana, which city attorney Stephen Postema claimed at the time was unenforceable. In 2008, around 4 out of 5 Ann Arbor voters supported the statewide ballot initiative on medical marijuana – it’s an overwhelming majority of Ann Arborites who are saying they prefer an end to the drug war, he contended.

The number of patients who legally use marijuana – and who applied for their patient cards – has outstripped the ability of the state of Michigan to process the paperwork in a timely fashion, Vazquez said. That may force some patients to use the black market to obtain their medicine until they can find a caregiver or find a way to grow their own. Vazquez said that in his view, Michigan attorney general Bill Schuette has vowed to thwart the will of the state’s voters by dragging patients and caregivers into court and proposing that the legislature change the Michigan Medical Marijuana Act to make it more difficult for patients to exercise their health care rights. To hear Schuette arguing for continued prohibition is like listening to Al Capone arguing for continued prohibition of alcohol, Vazquez said. Schuette’s actions have now prompted a ballot petition to legalize all uses of marijuana, he said.

Vazquez continued by saying that the city attorney should not be using his taxes to support the misguided and political actions of the state’s attorney general. He concluded by suggesting that the council consider three actions: (1) require that the city attorney’s office cease and desist action against dispensaries operating in Ann Arbor; (2) place on the ballot for the November 2012 election a measure similar to that passed by Kalamazoo voters – that the city charter be amended so that consumption or use of less than 1 ounce of marijuana by adults is the lowest priority for law enforcement personnel; and (3) appoint a marijuana regulatory commission, which would set quality standards, maximum prices, licenses and other fees, and an enforcement apparatus.

Jamie Lowell spoke on behalf of the Michigan Association of Compassion Centers (MACC). He thanked the council for being so steadfast on medical marijuana issues and working to resolve the challenges that have come up. He pointed out that the Michigan Supreme Court has decide to hear the appeal of the McQueen case. MACC has been invited to file an amicus brief in the case, he said. The court of appeals ruling on the McQueen case has served to cause more confusion and disagreement about how the state medical marijuana act impacts what a municipality may or may not do, he said.

MACC contends that the judges on the court of appeals lacked foundation and erred in their decision, Lowell said. He also indicated that MACC interprets the court of appeals ruling to be narrower than the interpretation by the attorney general and by some prosecutors and city attorneys. So MACC was not surprised when the supreme court decided to hear the case and take a closer look at it. Lowell said it would be appropriate for the council to set aside any implications that the McQueen case is thought to have had, until the supreme court rules.

Lowell also pointed out that state legislators are working on a “local option bill” entitled the Michigan Medical Marijuana Provisioning Center Act. Some legislators backing the bill are part of a bipartisan workgroup. The legislation would require a simple majority to pass (as opposed to the super-majority that would be required to change the voter-approved Michigan Medical Marijuana Act), so they believe it’s viable. During MACC’s discussions with state legislators, Lowell said, he’s repeatedly heard Ann Arbor cited as an example of a community that has embraced the opportunity to help citizens with their health care.

Nancy Wright Maxwell introduced herself as a 30-year Washtenaw County resident. She told the council that she was speaking in support of dispensaries. She said she’d been active her whole life, and she allowed that people might not think she looked like the face of the medical marijuana movement. She’s been a competitive athlete her whole life, she said, and has been playing national tournaments for the last 10-20 years. She’s had a lot of surgeries – three knee surgeries and two hip surgeries. She has chronic pain, she said.

Because she’s a senior executive for an insurance company and travels all over the world, she has limited options, Maxwell said. Vicodin isn’t a viable option, she said, citing the effects on the liver. She said that because she’s an athlete, she doesn’t want to smoke – so having safe, reliable dispensaries that she can trust is important. She doesn’t want to grow marijuana, she said, and did not want any part of that. She’d shown her 73-year-old conservative Grosse Pointe parents her registry card, and said it was a place of pride that she is legal. She said it’s important to be able to walk into a dispensary and get a little “medible,” that takes the edge off her pain so she doesn’t have to take Vicodin. She can no longer take the level of Advil that she’d been taking.

Maxwell allowed that she’d made the bed she was sleeping in with respect to her choice to engage in athletics. Ann Arbor is one of the most amazing places in the world to live – she wants Ann Arbor be a part of the cutting edge of having the model that will allow people to be helped. She allowed that some people will abuse it, and that’s unfortunate, but that’s a reality of every type of business.

Mitchell Elkiss began by saying he’d be offering a slightly different perspective – as a health care provider, a physician. So he had watched the emerging and evolving science of medical marijuana over the years, demonstrating its safety and efficacy. As a caregiver, he takes care of a lot of patients with chronic pain. He also suffers from chronic pain.

So with his doctor’s guidance, Elkiss had identified safe alternative therapeutic options that can be integrated into a whole complex of caregiving. With respect to dispensaries, if you’re going to write or fill a prescription, you need a quality source of whatever it is you’re going to use, he said. It needs to be a reliable source over time, each time you go. It has to be obtained in a safe and secure manner. So one of the things that distinguishes a dispensary from a single caregiver is that a dispensary can offer variety – different strains, medibles and tinctures. That’s not something a single caregiver can legally secure by himself. Elkiss told the council he’s a member of OM of Medicine, an Ann Arbor dispensary, and noted that the professionalism with which the dispensary conducts itself is part of the experience.

He reviewed the importance of finding a safe, effective alternative for the adjunctive use of medical marijuana, noting that it has to be done in a safe and reliable way, requiring special places where the products can be regularly of high quality.

Laurel Hufano introduced herself as a 33-year-old Ann Arborite, born and bred. She loves Ann Arbor and it’ll always be her home, she said. She felt very passionate about it being a safe, tolerant and welcoming place. She’s glad the University of Michigan and its hospital are located here.

Hufano had originally received her patient’s card in 2009 – she has arthritis and disc degeneration in her lumbar spine, along with a misaligned kneecap. She’s also suffered from migraines since she was 20 years old. So she has lived with chronic pain for some time. This year she was diagnosed with idiopathic inter-cranial hypertension. She’s had no positive response from various medications.

Having a medical marijuana patient card has made a world of difference in terms of making her daily pain livable, she reported. Dispensaries are important, because she needs a safe place that she can trust and access easily, and that is accountable to the city and that’s there to support patients. The center she visits has given her better care than many doctors, she said.

Drew Driver addressed the council from a wheelchair. He told the council he has a spinal cord injury. His primary care physician was barred from writing prescriptions for medical marijuana because of the hospital group he was with. So he recommended another doctor. Together they decided that medical marijuana was a good choice to deal with his muscle spasms, his pain and his lack of appetite.

Medical marijuana provides relief for him, Driver said. He said that although he visits Ann Arbor on a regular basis, he’s actually from Gaylord, about four hours north of Ann Arbor. After learning that medical marijuana helped him, he embarked on a mission to help others relieve their pain in a way so that they felt safe. He worked with his local city council, city police, county officials. They had a half dozen meetings about what they’d do – his goal was to have safe access and get dispensaries licensed and zoned properly. They’d come up with rules and regulations that worked for their town – they didn’t want a big marijuana leaf on the signs, for example. They didn’t want dispensaries within 500 feet of schools – that sort of thing, he said. It was a great experience for him, he said, because it got him involved in government and they all worked together and had a good outcome.

They had not actually written city ordinances, because at the time, Gaylord was worried they’d write an ordinance and they wouldn’t have control one way or another. His point, Driver said, was that a lot of other municipalities look to Ann Arbor for guidance – his own community had done that. There would be a lot of other cities who look to Ann Arbor as a leader on this issue. State legislators would also look to Ann Arbor as a leader.

Medical Marijuana Licensing Ordinance Revisions

The council was asked to consider a set of licensing ordinance revisions that had been recommended by the medical marijuana licensing board at its Jan. 31, 2012 meeting. Those recommended changes are included in the report that the licensing board subsequently submitted to the city council. [In the presentation below, the language recommended to be added is in italics, and language recommended for deletion is struck through.]

Licensing Revisions: Completeness, Conditions

The issue of completeness of applications is one that has been a chaffing point between the licensing board and the city staff. City staff were reluctant to present the board with license applications that they did not consider complete.

The licensing board agreed at its Jan. 31 meeting to recommend that the explicit role of city staff in determining completeness of applications be struck from two places in the ordinance [added language in italics; deleted language with strike-through]:

7:504 (4) Following official confirmation by staff that the applicant has submitted a complete application City Council approval of the issuance of a license, a new license shall not be issued to a medical marijuana dispensary until the applicant for the license complies with all of the following requirements…

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

At the licensing board’s Jan. 18 meeting, the idea was entertained to remove staff from part of the process, by requiring that all the application materials be forwarded directly to the board, instead of to the city planning staff. Ultimately, the board weighed the volume of actual work it would take for board members to handle application materials, concluding it was more than a clerical task.

The board also agreed to a recommendation making explicit that there is flexibility in the kind of conditions that can be set.

7:502 (7) … The Board shall annually send to City Council a proposed resolution recommending either approval or rejection of each complete license application. A recommended resolution may set conditions for approval. The conditions may include a waiver by City Council of any provision or provisions of the licensing ordinance, and/or the imposition of a new provision or new provisions, if the public interest so requires.

Licensing Revisions: Entry for Inspection

The board agreed to recommend a change to make explicit that requests from the city to inspect a dispensary would be complaint-driven:

Pursuant to a complaint, an authorized person shall consent to the entry into a medical marijuana dispensary by the Building Official and zoning inspectors for the purpose of inspection to determine compliance with this chapter pursuant to a notice posted in a conspicuous place on the premises two (2) or more days before the date of the inspection or sent and by first class mail to the address of the premises four (4) or more calendar business days before the date of the inspection.

Licensing Revisions: Number of Licenses, Frequency of Recommendation

At its Jan. 31 meeting, the licensing board grappled with the tension between having a single annual recommendation on licenses (as the ordinance now specifies) versus a rolling recommendation as applications are submitted. The board agreed not to suggest changing from the process described in the ordinance as an annual recommendation for the award of licenses.

The board settled on capping the number of licenses at 20, which is the maximum number specified in the ordinance for the first year.

… but not more than 20 medical marijuana dispensary licenses shall be issued in the first year and shall be capped at that number.

Also recommended was a standardization of the timing requirements for applications – in some places there’s a 70-day condition but in others it’s a 90-day condition. The board agreed to recommend making that timing requirement uniformly 90 days.

Licensing Revisions: Council Deliberations

Sabra Briere (Ward 1) is the city council representative to the medical marijuana licensing board, so she led off the deliberations by reviewing how the licensing ordinance revisions had come to the council. She summarized them by saying that most of the changes were clarificational, but called her council colleagues’ attention two substantive changes – the cap at 20 licenses and the council’s ability, in the context of a license recommendation for a specific dispensary, to waive provisions of the licensing ordinance or add a new provision to the licensing ordinance.

Because only 10 dispensaries had applied in the first year, the board saw no reason to increase the number. With respect to the ability of the council to waive or add provisions to the licensing ordinance, Briere said it was not a recommendation about what provisions should be waived or added.

Sandi Smith (Ward 1) asked Briere what the impetus was for imposing a cap. Briere explained that the cap of 20 had been established by the council for the first year only. The board had been asked to recommend a number going forward. The recommendation to set the cap at 20 amounted to a recommendation to make no change, Briere said.

With respect to the other revision to allow waivers and additional requirements, Briere described how there was rigidity with respect to the way some people were attempting to apply the ordinance to existing conditions. Because those conditions weren’t being applied by the council (the governing body), she said, but by city staff just trying to figure out the right thing to do, the board didn’t want to say what new conditions might indicate making a waiver, but felt it should be within the council’s authority to do that without conflicting with the ordinance. What you run into, she said, is the licensing board’s sincere effort to anticipate things that can’t be anticipated.

Carsten Hohnke (Ward 5) asked Briere if she thought it would be useful to separate out the proposed actions into different motions. He identified the change that would make inspection “pursuant to a complaint” as one that some people might feel is substantive, as well as the two that Briere had identified. Briere responded by saying that one of the possibilities was not to vote on the changes that night. Her bias was to take up any changes to the zoning ordinance at the same time as the licensing ordinance.

Tony Derezinski (Ward 2) said he was somewhat troubled by the revision that would allow for the waiver or imposition of an additional requirement by the city council. He characterized it as amending an ordinance through a simple resolution. [By the city charter, ordinance revisions require votes by the council at two separate meetings and a public hearing before the second vote. A resolution can be passed by the council at a single meeting.] He said he had concerns about that. The licensing ordinance was, he said, to say the least hard fought and well thought out. There were a lot of compromises that were made, he said. He was troubled by the idea of altering an ordinance through a simple resolution and would not support it on that basis.

Jane Lumm (Ward 2) also expressed concerns about the idea of waiving provisions of the licensing ordinance. She wanted to understand what the change was meant to accomplish. She found it of concern to be routinely waiving ordinance provisions. Briere told Lumm that Lumm was understanding the ordinance “moderately correctly.” But Briere went on to clarify that she did not know if the licensing board felt very strongly about whether there should be a specific ordinance change associated with a waiver or a new provision. The board did feel that there were no criteria given for granting a license, and the lack of criteria of evaluating a license created a clear conflict “of the board.”

That is, Briere said, board members felt like all they could do, more or less, would be to see if all elements of the applications were present. There were not criteria offered by the council in the ordinance. And the board didn’t develop criteria, because the board didn’t have any guidance to develop criteria. As a result, she said, the board felt that if the council wants criteria, it should be able to say, for example, this dispensary would be too close to that dispensary, even though no criterion has been set that says dispensaries can’t be within 500 feet of each other.

Briere reiterated that her preference would be to introduce the revisions and then postpone them, to discuss zoning changes at the same time.

Lumm followed up with a question about the revisions that would strike language about the completeness of applications. She wondered why the change was needed. She felt that before council could act, it needs to know if the application is complete. Briere explained to Lumm that what the change does is ensure that the council has a consistent role. It’s the council that approves a license, not the staff, Briere said. The change clarifies what the final step is. The council won’t consider an application that hasn’t been through the licensing board, she said.

Mayor John Hieftje remarked that if the council were going to postpone the licensing ordinance revisions, he didn’t want to spend a lot of time discussing it that night.

Licensing Revisions: Council Deliberations – Postponement

Briere then made a formal motion to postpone the licensing ordinance revisions. She suggested that the postponement be to a date no later than the middle of June. The reason for the ambiguity was because of the subsequent resolution that the council would be considering, that asks the planning commission to evaluate the zoning ordinance for possible changes. She did not want to put pressure on the planning commission to act.

Christopher Taylor (Ward 3) wondered if a postponement to a date certain could be achieved with a “not later than” phrase. Hieftje suggested making it June 18 – the second meeting in June.

Derezinski said he supported the postponement. He wanted to see the issue he’d raised addressed [about the idea of essentially revising an ordinance through a resolution]. The ordinance language had gone through “a meat grinder, or a sausage grinder,” he said, so to amend it by a simple resolution in the context of a license approval gave him a lot of concern. That gives the council a lot of latitude to act in the “public interest,” he said. Derezinski expressed concern about the vagueness of that phrase, as well.

Stephen Kunselman (Ward 3) also supported postponement. He said he shared Derezinski’s concern over the waiver of a provision of the licensing ordinance. It struck him as far-reaching, he said.

Outcome: The council unanimously postponed the medical marijuana licensing ordinance revisions until June 18.

Direction to City Attorney on Enforcement

On the council’s agenda was a resolution to “delay all enforcement activities against medical marijuana dispensaries and cultivation facilities except for claims that they violate Section 5:50.1(3) of the City Code [zoning regulations], until the Council amends or rejects amendments to the zoning and licensing ordinances for medical marijuana.”

The resolution had been twice-previously postponed. On March 5, the council did not arrive at the agenda item until after midnight, due to lengthy deliberations on the four-party countywide transit agreement. So on that occasion the council opted to postpone until they were mentally fresher. And on March 19, three of 11 members were absent, and the prevailing sentiment on the council was that postponement would be appropriate, in order to allow those three absent members to vote.

Direction to City Attorney: Background

To evaluate compliance with the Michigan Medical Marijuana Act (MMMA), the city attorney’s office required that dispensaries submit with their license applications a clear statement of exactly how their business models would conform with the MMMA. [For analysis of the role of the city council compared with the role of the city attorney and the licensing board in the licensing process set up by the city council, see "Ann Arbor Marijuana Licenses: Who Decides?"]

For example, Cannabis Counsel, the attorney for MedMarx at Arborside, included a statement explaining its MMMA conformance in the wake of Michigan v. McQueen (Compassionate Apothecary). An Aug. 23, 2011 court of appeals ruling on the case has been interpreted by many authorities to mean that no medical marijuana dispensaries are legal. [.pdf of letter from Cannabis Counsel regarding Arborside's business model] The McQueen case has been accepted for review by the Michigan Supreme Court, which means that it’s not yet settled case law. And the broadest interpretation of the McQueen case – that it bans all dispensaries – is itself controversial.

The Cannabis Counsel letter lays out why the court of appeals in the McQueen case found that the Compassionate Apothecary business model was not in compliance with the MMMA: The problem was that Compassionate Apothecary did nothing to “assist” patients in administering or using marijuana, beyond exchanging marijuana for money. In contrast to Compassionate Apothecary, argues Cannabis Counsel, Arborside does assist patients in the manner described by the court – by assisting the patient “in preparing the marihuana to be consumed in any of the various ways that marihuana is commonly consumed.” Those ways include providing patients with “cleaned prepared de-stemmed cannabis including pre-rolled joints, medibles which have been inspected, tested, cleaned, grinded and rolled, or cooked in combination with foodstuff.”

The Ann Arbor dispensaries met the city’s request to submit with their applications an explanation of their compliance with the MMMA. And on Jan. 31, 2012, the city’s medical marijuana licensing board voted to recommend licenses to 10 dispensaries. Yet after that, when dispensary owners felt like they’d completed the application process with the final step to be a vote by the city council, the city attorney’s office sent out letters demanding additional data.

Among the questions posed to all dispensaries in the letters are the following: “Does any person or entity deliver marijuana to [Dispensary Name]? If so, does [Dispensary Name] ever pay, donate, or in any way give money to the person or entity who delivers the marijuana or to anyone else? If so, to whom is the money paid, donated, or given and how much?” [.pdf of set of letters]

Dispensaries have balked at the additional data request, arguing that the information is sensitive and the collection of such data by the city was explicitly removed by the city council during the legislative process that resulted in approval of the licensing and zoning ordinances. But the city is currently not granting Chapter 55 zoning compliance permits to license applicants – on the grounds that compliance with the MMAA cannot yet be verified.

The licensing board met on Feb. 24 in response to the new letters, and asked that the resolution, which the council was considering for the third time on April 2, be voted on by the council.

Direction to City Attorney: Deliberations

Sabra Briere (Ward 1) led off deliberations by sketching out the background of the licensing board’s meeting on Feb. 24, describing it as an unanticipated meeting. The board felt very strongly that the role of the city attorney’s office needed to be clarified, and the only body that can do that is the city council, Briere said. [The city attorney is one of two positions hired directly by the city council. The other position is city administrator.]

Sandi Smith (Ward 1) expressed sympathy with the intent of the resolution, but wanted to offer an additional resolved clause that would allow the resolution to be rescinded at any regular or special meeting called for that purpose. That amendment was accepted as a “friendly amendment,” which did not require a vote of the council.

Tony Derezinski (Ward 2) cited the same issue he’d raised earlier, in connection with the proposed licensing ordinance revisions – it’s a resolution that has the effect of changing an ordinance the council has passed. It says don’t enforce the law as the council wrote the law, Derezinski contended. With respect to the idea that the enforcement would be delayed until the council decides what to do, Derezinski felt that’s pretty “loosey-goosey” and that it left open the possibility that enforcement could be delayed for quite some time – until licensing ordinance revisions are decided on. The council had passed an ordinance, and the city attorney is obliged to enforce it, Derezinski said, so he’d be voting against the resolution.

Addressing the amendment proposed by Smith, Carsten Hohnke (Ward 5) asked if it’s an action reserved for the council in any case – to call a special meeting and rescind a resolution. Briere confirmed that was the case – it’s a belt and suspenders approach.

Responding to Derezinski’s concern about the indefiniteness of the delay in enforcement, Briere pointed out that by its decision to postpone the ordinance revisions until June 18, there was a date in the future by which time the council expected the issue to be settled.

Christopher Taylor (Ward 3) stated his belief that the status of medical marijuana in the state law as currently articulated by the courts is inconsistent and at odds with the way that most Ann Arborites would like it to be. He included himself in that view. That resulted in a tension between the council’s action and the state of the law generally. He characterized the resolution as “wandering towards” that tension and seeking to resolve it. But he said he did not believe that the council should do that. The council is a body that is subordinate to state law. The council has also enacted local laws and he felt that until the council chooses to change the law, the law should be enforced. So he said he would not support the resolution.

Mike Anglin (Ward 5) asked for clarification of the request of a delay. He asked what information the city attorney was requesting of dispensaries – was it information that’s supposed to be protected? Briere confirmed that this was the case. The letter sent by the city attorney’s office requested the names of individuals involved in providing medical marijuana to dispensaries and other information as well. She said that for her part the line was crossed when the city began seeking information that it’s not supposed to be seeking.

As the legislation was being crafted, Briere noted that the council had talked about whether to require dispensaries to maintain lists of patients or people growing marijuana. The council learned that if it did collect such a list, it would in any case not be able to confirm that someone was allowed to grow marijuana, or have a patient card, because that information is restricted and the state would not release it. For the city’s purposes, they could not match a name with patient or caregiver numbers.

Briere said she could appreciate the desire of the city attorney’s office to verify that a dispensary operation is in compliance with the Michigan Medical Marijuana Act, but indicated she felt it was as difficult for the city attorney’s office to do that as it was for the licensing board to develop any criteria by which to evaluate applications.

It shouldn’t be sufficient that someone merely fills out all the paperwork in the right order in order to get a license, she said. But the board didn’t try to set criteria, because there were so many other issues in front of the board. The city attorney’s office is, through its recent letter, trying to set those criteria – which includes the collection of information that the council had agreed it shouldn’t collect. That caused a problem for the licensing board and it caused a problem for her, Briere concluded.

Derezinski invited city attorney Stephen Postema to tell his side of the story, because he’d been mentioned as the staff person involved. In an aside to Derezinski, Briere pointed out that she’d cited the city attorney’s office, not Postema.

Postema then spoke at length on the issue, characterizing his office’s letters as simply trying to verify that a dispensary is in compliance with state law. He argued that the council should be considering whether to award licenses to dispensaries recommended by the licensing board, not thinking about revising the licensing ordinance.

… frankly I don’t know why, under the ordinance, the business licenses aren’t before the council. Ordinarily they’d come there. So again, this is all sort of backwards in one sense, because what they’re trying to do is get a license. They can’t operate right now, they’re not allowed to operate at all – without a license. And that is what they should be wanting to be in front of you, so you can rule on it. So if they do comply with state law, they can get a license. So asking them for basic information is part of what needs to be there. And that’s nothing surprising. The fact that the licensing board somehow took offense to this, that’s because they’re operating in a different realm in some ways than what I’m being asked to do. So there’s nothing surprising there.

[Postema's claim that the lack of a license, while an application is pending, precludes operation of a dispensary is contradicted by the ordinance language, which specifically allows a dispensary to operate while its application is pending. For more detail, see "Ann Arbor Marijuana License: Who Decides"]

Postema expressed puzzlement that the licensing board was recommending that compliance with the MMMA be struck from the zoning ordinance. [The zoning ordinance issue was discussed by the council later in the meeting.]

With respect to the sensitivity of the information that his office was requesting, he contended that dispensary owners have been told specifically that they can disguise the information in “the way it’s talked about in the ordinance.” The ordinance provides for unique alphanumeric codes to be used in labeling as follows:

(4) All marijuana delivered to a registered qualifying patient shall be packaged and labeled as provided in this chapter. The label shall include:
(a) a unique alphanumeric identifier for the person to whom it is being delivered;
(b) a unique alphanumeric identifier for the registered primary caregiver who is delivering;
(c) a unique alphanumeric identifier for the medical marijuana cultivation source of the marijuana;

[In asking "... does [Dispensary Name] ever pay, donate, or in any way give money to the person or entity who delivers the marijuana or to anyone else? If so, to whom is the money paid, donated, or given and how much?” the city attorney is apparently seeking to establish whether a “sale” of marijuana is taking place at the dispensary. The McQueen case turned in part on the court’s view that the dispensary in that case was not providing assistance to patients in the medical use of marijuana beyond the provision of the raw material and was thus engaged merely in the sale of marijuana.]

Briere countered Postema’s contention that the names could be disguised by pointing out that the letters sent by Postema’s office asked, “… to whom is the money given?” She said that she understood that to mean, “… give me the name of the person …” And that’s how dispensary owners and the licensing board had understood it, she said. Briere recalled the lengthy council discussion about whether to collect the names of people who were involved.

She also said that given all the intricacies, the licensing board is not asking that other laws not be enforced, but that until the council decides what it will do with the ordinances, it asks the city attorney not to consider anything else. The members of the licensing board don’t want to talk about whether a license should be granted, if they believe that the council will be advised that no licenses should be granted. The board wants the council to consider amendments to the ordinances first. What she hears from the city attorney is that he can’t assert at this time that anybody complies with the ordinances. So why should licenses be considered, if the advice from the city attorney will be that nobody is in compliance? The licensing board was asking the council to deal with the ordinances, she said.

Stephen Kunselman (Ward 3) zeroed in on Postema’s question about why the licenses were not in front of the council. He noted that Briere had implied that if the licenses came before the council, the council would be advised that the dispensaries don’t comply with state law. He alluded to the public commentary about the narrow interpretation of the McQueen case.

So Kunselman asked Postema why the licenses are not in front of the council. Who would bring them, he asked? Would it be the city attorney, or the city administrator? That seems the most rational thing to do, he said, to start moving forward, rather than delaying enforcement. “Let’s get the license applications in front of us,” Kunselman said. Postema then contended, “I think they are in front of you in one sense. I don’t really know why, in the ordinary course of something like this, they would just come in front of you … it is before you, it just doesn’t show up on the agenda.” He indicated that his office would not ordinarily put such an item on the agenda, but that it would happen “automatically.”

Briere responded to Postema’s remarks by noting that the council had been provided with the licensing board’s report, which includes the dispensaries that have been recommended for licenses. She said that if it’s the council’s desire, she could bring the license recommendations to the council for a vote – she could do that as soon as the next meeting. But she noted that if the ordinances have not been resolved, then the council may not believe it has the ability to approve a license. It’s the council’s decision about the order in which things flow, she said. But the licensing board wants the ordinances dealt with first.

Mayor John Hieftje said that in following reports out of Lansing, it seemed to him that the state law is in “flux” – alluding to the supreme court’s decision to hear the appeal of the McQueen case and possible new legislation that’s being considered.

Postema told Hieftje that the state of the law is not in flux. The body of law in the court of appeals has been consistent, he said. Postema said it was not a surprise that the supreme court had agreed to hear the McQueen case. He said most people who are following the case don’t believe the ruling would change. However, he allowed that there could be a change in the analysis of McQueen. He indicated he’d shared his thoughts with people working on new state legislation. He said he was not going to pursue the issue right now. But he repeated his contention that “… right now they don’t have a license, they’re not in compliance with the ordinance.”

Hieftje noted how much time the council had spent on the issue over many months, and said he was reluctant to “do anything concrete” with the possibility that legislation might move in Lansing and court cases still being considered. He said he didn’t want to spend any more time on the issue than they needed to: “We’ve spent way too much time on this issue for what it should have warranted.” He laid that at the feet of the state legislature in Lansing, saying they’d totally dropped the ball on providing guidelines for local governments.

Sandi Smith (Ward 1) asked for confirmation from Postema that other cities have collected fees and issued licenses for dispensaries. Postema allowed that was true. Smith ask if there’d been any state action against the cities that had done that. Postema said he didn’t think there’d been state action.

Smith felt the council’s discussion had provided fodder for the licensing board to reconsider the methodology of trying to get the licenses to go forward. She suggested that the council send the message back that the council wants to look at the licenses – that was the approach she wanted to take. If the state does something, the council could make adjustments as needed.

Carsten Hohnke (Ward 5) expressed concern about the order of things. He indicated support for Smith’s desire to go ahead and have the council consider the licenses. He felt that if the council considered the licensing applications after changing the ordinances, the council might find itself wishing that it had maintained the same ordinance language. He felt that the point is to get some better understanding of how dispensaries are conforming. In the discussion of whether to approve licenses, the council might come up with an approach to dealing with that.

So Hohnke moved to table the resolution directing the city attorney. It did not feel like the right order of things, he said. Hieftje said his concern was that the council could consider the licenses and then find that six months later the rules have changed at the state level and the council would be back to considering the licenses again. “It doesn’t seem to end, is the problem here,” he said. Hieftje was somewhat reluctant to consider the licenses, given what he thinks the city attorney’s advice would be in the context of the state law. What he liked about the resolution is that it says basically, “Listen, there’s nothing really wrong right now, and we haven’t had any particular problems, let’s give ourselves some time …”

Hohnke said it would be nice to get direction from the legislature. But absent the consideration of a license, Hohnke said, the need for asking questions about whether there is compliance to support approval of the licenses would be moot. It’s not clear then what might happen that the resolution would address. So Hohnke moved to table the resolution and it was seconded by Smith.

Briere noted that it’s completely in the control of the council to postpone to a date certain or to table. She allowed that the need to bring this back off the table might not exist, if the council evaluates licenses. Things might not be resolved at the state level in three months. To delay this longer than three months seems wrong, she said. If the council wants to see licenses before June 18, it may never need to come off the table.

Christopher Taylor (Ward 3) said that as he understands the status quo, one suspects businesses are operating and people are obtaining medical marijuana under what they believe to be safe and comfortable conditions. He said he had a problem with the idea of ceasing the enforcement of existing laws, so he’d support the tabling.

Outcome: The council tabled the resolution on a 6-4 vote. Dissenting were Sabra Briere (Ward 1), Margie Teall (Ward 4), Mike Anglin (Ward 5) and mayor John Hieftje.

Given the sentiment expressed by Smith, Hohnke and Kunselman, there is at least some interest on the council in seeing the license recommendations come before the council. However, the city attorney has told at least one councilmember that his office would not be prepared to give advice on the issue at least until June.

Direction to Planning Commission

Another resolution on the April 2 council agenda would direct the city planning commission to review the medical marijuana zoning ordinance, including the licensing board’s recommended change. The one board-recommended change is to strike the following sentence: “Medical marijuana dispensaries and medical marijuana cultivation facilities shall be operated in compliance with the MMMA (Michigan Medical Marijuana Act).” [.pdf of the recommended zoning ordinance change. For analysis of the implication of striking the sentence, see "Ann Arbor Marijuana Licenses: Who Decides?"]

The discussion at the licensing board’s Jan. 18, 2012 meeting on this issue included concern expressed by dispensary owner Chuck Ream, who indicated that deleting the phrase could cause alarm and attract unwanted attention to Ann Arbor if it were incorrectly perceived as sending a message that Ann Arbor’s dispensaries would not be following Michigan’s medical marijuana law.

Tony Derezinski (Ward 2) led off deliberations on April 2 by saying that with the action the council had just taken – postponing the licensing ordinance revisions and tabling the direction to the city attorney – giving direction to the planning commission didn’t make sense. He said that action should be postponed.

Sabra Briere (Ward 1) pointed out that one reason for postponing the licensing ordinance revisions was to allow time for the planning commission to consider the medical marijuana zoning ordinance. There was no other reason to postpone it. So she did not encourage postponing the resolution.

Christopher Taylor (Ward 3) asked if there was any reason to think the planning commission would not take action on the licensing board’s request in due course. Briere said that if the council were to ask the planning commission to take a look at the recommended change, the commission would take some action.

Taylor followed up by saying that his understanding was that the ordinary course of things would have the planning commission considering the licensing board’s request [without involvement of the city council]. He asked if the licensing board had communicated its request to the planning commission. Briere indicated that it’s the council that would make the request, not the licensing board. Taylor questioned whether the planning commission really would not consider any zoning change unless it’s been specifically requested by the council. Briere replied that this was the order in which she’d been told she had to do things. Based on her conversations with the city attorney’s office, this was the order in which things needed to go.

Jane Lumm (Ward 2) asked if there were a legal reason why for the recommended change to delete the explicit mention of MMMA compliance. She felt it was not an unreasonable requirement to include in the zoning ordinance. She wondered if the suggestion was that dispensaries don’t need to be in compliance with the MMMA.

Briere explained that during the course of the application process, the licensing board members learned that in part because of that specific clause, that [in the city attorney's view] each license applicant had to prove they were in compliance. The rest of the zoning ordinance has requirements that mirror the requirements in the MMMA. But the specific clause prevented any of the dispensaries from obtaining a zoning compliance permit – because they couldn’t, to the satisfaction of the city staff, prove they were in compliance with the MMMA. Without a zoning compliance permit, no application was complete, Briere said.

Postema said he didn’t think it was unreasonable for the process to go to the planning commission and come back to the council.

Carsten Hohnke (Ward 5) said that the merits of the appropriate changes could be discussed later, but he felt that the proper order of things was to send it to the planning commission. Mayor John Hieftje felt it wouldn’t take the planning commission an inordinate amount of time to act.

Derezinski asked if the city council was asking the planning commission to delete the section that had been recommended for deletion by the licensing board. Postema clarified that the resolution was asking the planning commission to take a look at it – it would not require the planning commission to make any particular recommendation. Derezinski asked if this were a case of making a change to an ordinance through a resolution. No, said Postema. Derezinski confirmed with Postema that the planning commission could do whatever it felt was best.

Lumm found the deletion of the sentence confusing, from the perspective of a planning commissioner. Postema noted that any change would need to come back to the council. Briere observed that it’s within the purview of the planning commission to make any recommendation.

May 7 was specified in the resolution as the date by which the planning commission was supposed to act. Mike Anglin (Ward 5) asked if the May 7 date was appropriate. Planning manager Wendy Rampson noted that they’d need 15 days for noticing any public hearing on the issue. Also it might be hard to respond quickly without additional background. It would be helpful to have some additional time, say until the end of May, Rampson said. Hieftje proposed June 1, for which there was general agreement.

Outcome: The council approved the resolution giving direction to the planning commission to review the zoning ordinance over the sole dissent of Tony Derezinski (Ward 2).

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

Absent: Marcia Higgins.

Next council meeting: April 19, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [confirm date]

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The council unanimously postponed consideration of the licensing ordinance revisions until the council’s second meeting in June – June 18.

The council approved the  resolution that gives direction to the planning commission to review the medical marijuana zoning ordinance, on a 9-1 vote.

The council tabled the resolution directing the city attorney to delay enforcement activities until the revisions to the local ordinances have been either adopted or rejected. The tabling was achieved on a 6-4 vote. Voting against the tabling were mayor John Hieftje, Sabra Briere (Ward 1), Margie Teall (Ward 4) and Mike Anglin (Ward 5). A tabled resolution will demise if it’s not brought back off the table in six months.

The board-recommended revisions to the medical marijuana licensing ordinance are laid out in detail in The Chronicle’s coverage of the medical marijuana licensing board’s Jan. 31, 2012 meeting. [.pdf of recommended licensing ordinance revisions] Representative of the revisions is a change that strikes the role of city staff in evaluating the completeness of a license application. The following phrase, for example, would be struck: “Following official confirmation by staff that the applicant has submitted a complete application …” The changes also establish a cap of 20 licenses, and grant the city council the ability to waive certain requirements. The power to grant a waiver to provisions in an ordinance through a simple resolution did not meet with a positive reception from several councilmembers, most notably Tony Derezinski (Ward 2).

The zoning ordinance revision recommended by the medical marijuana licensing board was not itself considered by the city council on April 2. Instead, the council considered a resolution directing the city planning commission to review the medical marijuana zoning ordinance, including the licensing board’s recommended change. The one board-recommended change is to strike the following sentence: “Medical marijuana dispensaries and medical marijuana cultivation facilities shall be operated in compliance with the MMMA (Michigan Medical Marijuana Act).” [.pdf of the recommended zoning ordinance change] Derezinski was the sole vote against giving the planning commission direction. He’s the council’s representative to the planning commission.

The tabled resolution to direct the city attorney to delay enforcement activity against dispensaries would have directed the city attorney to “… delay all enforcement activities against medical marijuana dispensaries and cultivation facilities except for claims that they violate Section 5:50.1(3) of the City Code [zoning regulations], until the Council amends or rejects amendments to the zoning and licensing ordinances for medical marijuana.”

The resolution stemmed from recent action taken by the city attorney’s office, demanding that dispensaries submit additional details of their business operation, contending that such details were required in order to evaluate a dispensary’s  compliance with the MMMA. Dispensaries recommended for licenses by the board had already been required to submit a written explanation of their conformance with the MMMA. So the additional demand for information was not well-received by dispensary owners.

The general background of the current medical marijuana climate includes enactment of  two kinds of regulations for medical marijuana businesses last year, at the city council’s June 20, 2011 meeting. One piece of legislation established the zoning laws that apply to such businesses – establishing where medical marijuana dispensaries and cultivation facilities could be located. The other piece of legislation established a process for granting licenses to medical marijuana dispensaries. Cultivation facilities are not required to be licensed.

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. Meeting Report: [link] Analysis of meeting issues: [link]

Screen shot excerpt for April 2, 2012 Ann Arbor city council's online agenda. Image links to online agenda.

Medical marijuana is the subject of three different agenda items. The first has previously been postponed twice – at the council’s March 19 and March 5 meetings. It would direct the city attorney to delay enforcement of the Michigan Medical Marijuana Act, as well as the city’s licensing and zoning ordinances (with one exception), until the city council has acted on possible amendments to the city’s local ordinances on medical marijuana.

Amendments to those ordinances, as recommended by the city’s medical marijuana licensing board at its Jan. 31, 2012 meeting, are covered in two other items on the April 2 agenda. One item includes a series of amendments to the licensing ordinance, which in part help clarify the role of city staff, as compared to the licensing board, in the licensing process. The council will be considering the amendments for the first time at the April 2 meeting. If approved, the amendments would require a second and final approval by the council at a subsequent meeting before taking effect.

The other agenda item regarding the city’s ordinances on medical marijuana is not itself a proposed amendment. Instead, the council resolution would give direction to the city planning commission to review the recommended revision to the zoning regulations for medical marijuana businesses. That’s because it’s the purview of the city planning commission to review changes to the zoning code. The planning commission would then forward its recommendation to the city council.

Added to the agenda on Friday were two items that Stephen Kunselman (Ward 3) had announced at the council’s previous meeting, on March 19, that he would be bringing forward. The first is a resolution that would direct the city attorney to prepare a written opinion on the transfer of funds from the street millage fund to the city’s public art fund. It’s a point of contention that has a history going back at least two and a half years. Kunselman’s resolution refers to the context of the fiscal year 2013 budget, which the council will be presented by the city administrator on April 16. The council will need to act on that budget by the end of May.

Another item on the agenda that’s related to public art is the approval of a $150,000 sculpture for the interior of the new municipal center, in the Justice Center building. And finally, the report from the public art commission’s planning retreat, held on Feb. 26, 2012, is attached to the council’s agenda as a communication.

The second item added to the agenda by Kunselman on Friday directs the city staff to analyze the compliance of the Ann Arbor DDA with Chapter 7 of the city’s code, which is the legislation that established the DDA in 1982. Kunselman’s resolution asks for an analysis by Ann Arbor city staff of the DDA’s capture of taxes in its tax increment finance (TIF) district. The DDA is slated on April 9 to present its board-approved FY 2013 budget at a city council working session.

Chapter 7 appears to impose a limit on the amount of TIF capture, based on the rate of growth of property valuation inside the DDA district. Last year, when the relevance of the ordinance was pointed out by city financial staff, the DDA returned over $400,000 to other taxing authorities in the district. The city of Ann Arbor waived its share of over $700,000.

However, the DDA subsequently has contended that the money it reimbursed to other taxing authorities was not required. The DDA claims that Chapter 7 does not impose a limit on TIF capture, but rather addresses how money would be returned to other taxing authorities, if the DDA did not use the money. At stake this year and in future years is several hundred thousand dollars, depending on how the calculations are done. The Ann Arbor District Library, one of the taxing authorities whose taxes are subject to DDA capture, has publicly stated that it has not changed its original legal position – which interprets Chapter 7 as a limit on TIF capture and questions the methodology used by the DDA to calculate the excess.

The April 2 Ann Arbor city council meeting begins at 7 p.m. in city council chambers on the second floor of city hall, located at 301 E. Huron. The meetings are broadcast live on Channel 16 of the Community Television Network. The Channel 16 broadcast is also streamed live on the Internet.

Medical Marijuana

Three different medical marijuana-related items appear on the council’s April 2 agenda.

Medical Marijuana: Background

The Ann Arbor city council enacted two kinds of regulations for medical marijuana businesses last year, at its June 20, 2011 meeting. One piece of legislation established the zoning laws that apply to such businesses – establishing where medical marijuana dispensaries and cultivation facilities could be located. The other piece of legislation established a process for granting licenses to medical marijuana dispensaries. Cultivation facilities are not required to be licensed.

Part of the licensing legislation included the establishment of a five-member licensing board. The board began meeting in the fall of 2011. The board was required to review license applications and make recommendations to the city council for any changes in the medical marijuana ordinances by Jan. 31, 2012. The board met on Jan. 31, 2012 and made recommendations to grant licenses to 10 dispensaries, some of them conditionally. The city council has not yet considered the recommended license awards. The board also agreed at its Jan. 31 meeting on recommendations for specific changes to the city’s licensing and zoning ordinances. [.pdf of medical marijuana licensing board report to the city council]

Throughout the license review process, a certain amount of tension has emerged between the licensing board and city attorney’s office. Among other disputed issues is whether the board has purview over the question of whether an application for a license is complete. The city attorney’s office was also pursuing legal action against at least one dispensary, while its licensing application was being considered by the board.

Medical Marijuana: Tension Between Board, City Attorney

That tension between the medical marijuana licensing board and the city attorney’s office was highlighted in a statement sent by members of the board to city councilmembers on March 2, which reads in part: “[The city attorney's office] has been aggressively trying to shut [dispensaries] down while we actively try to license them.” The statement goes on to point out that a representative from the city attorney’s office had been present at all of the board’s meetings and that the board’s recommendations had been reported to the city council. But after that, the city attorney’s office had sent out new letters to all dispensaries requesting them to provide information about how their business operates. [.pdf of entire statement from Ann Arbor's medical marijuana licensing board to the Ann Arbor city council]

Before sending that letter, the city’s medical marijuana licensing board had met on Feb. 28 in response to concerns raised by several dispensary owners, who had received letters dated Feb. 24 from the city attorney’s office. The letters make specific inquiries into several aspects of the business model of dispensaries – in order to assess whether they are in compliance with the Michigan Medical Marijuana Act. Compliance with the MMMA is a requirement for issuance of a medical marijuana license, and recipients of the letters have license applications pending with the city. Although the legal position of the city attorney appears to be that it’s possible for a dispensary to operate in compliance with the MMMA, no explication of what that model would entail has been set forth publicly.

Among the questions being posed to all dispensaries in the letters is the following: “Does any person or entity deliver marijuana to [Dispensary Name]? If so, does [Dispensary Name] ever pay, donate, or in any way give money to the person or entity who delivers the marijuana or to anyone else? If so, to whom is the money paid, donated, or given and how much?” [.pdf of set of letters]

Medical Marijuana: Agenda Item – Direction to the City Attorney

The resolution on the April 2 agenda directs the city attorney to:

… delay all enforcement activities against medical marijuana dispensaries and cultivation facilities except for claims that they violate Section 5:50.1(3) of the City Code [zoning regulations], until the Council amends or rejects amendments to the zoning and licensing ordinances for medical marijuana.

The part of the city code called out for continued enforcement in the resolution [Section 5:50.1(3)] specifies the zones in the city where medical marijuana businesses may be located. From the code: “Medical marijuana dispensaries shall only be located in a district classified pursuant to this chapter as D, C, or M, or in PUD districts where retail is permitted in the supplemental regulations. Medical marijuana cultivation facilities shall only be located in a district classified pursuant to this chapter as C, M, RE, or ORL.” [.pdf of Section 5:50.1(3)]

The city council resolution on the April 2 agenda was sponsored by Sabra Briere (Ward 1), who is the council’s representative to the medical marijuana licensing board.

The council has twice-previously postponed voting on the resolution giving direction to the city attorney. On March 5, the council did not arrive at the agenda item until after midnight, due to lengthy deliberations on the four-party transit agreement. So on that occasion the council opted to postpone until they were mentally fresher. And on March 19, three of 11 members were absent, and the prevailing sentiment on the council was that postponement would be appropriate, in order to allow those three absent members to vote.

At the March 19 meeting, Briere circulated a possible revision to the resolution. The amended text reads in relevant part:

… delay all enforcement of Medical Marijuana Act and the licensing and zoning ordinances against medical marijuana dispensaries and cultivation facilities that the Licensing Board had recommended for licensing and that the Licensing Board found to be in operation prior to Aug. 5, 2010, except for claims that they violate Section 5:50.1(3) of the City Code …

So the revised version restricts the topic of the resolution to the 10 dispensaries that the licensing board recommended for licenses, and even further to just those of the 10 that the board found to be in operation prior to Aug. 5, 2010. That was the date when the city council imposed a moratorium on additional dispensaries or cultivation facilities in the city. Of the 10 dispensaries that were recommended for licenses, the Medical Grass Station, on West Liberty, was found to have started operation after the Aug. 5, 2010 moratorium.

The resolution directing the city attorney on enforcement actions ties the duration of the direction to the time at which the council acts on recommendations for amendments to the city’s medical marijuana ordinances. The resolution stipulates that the council act by June 18, 2012.

Medical Marijuana: Agenda Item – Licensing Ordinance Revision

Also appearing on the agenda for the April 2 meeting are revisions to the medical marijuana licensing ordinance suggested by the city’s licensing board. [.pdf of recommended revisions]

The revisions are covered in somewhat more detail in The Chronicle’s coverage of the licensing board’s Jan. 31, 2012 meeting. Representative of the revisions are the following changes, which make explicit that the role of city staff in determining completeness of applications be struck from two places in the ordinance [added language in italics; deleted language with strike-through]:

7:504 (4) Following official confirmation by staff that the applicant has submitted a complete application City Council approval of the issuance of a license, a new license shall not be issued to a medical marijuana dispensary until the applicant for the license complies with all of the following requirements…

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

It’s possible that the changes will generate little discussion by councilmembers on April 2, because the changes, even if unanimously approved on April 2, will still need to receive a second and final approval by the council after a public hearing at a subsequent meeting.

Medical Marijuana: Agenda Item – Zoning Ordinance Revision

The zoning ordinance revision recommended by the medical marijuana licensing board is not being considered by the city council on April 2. Because zoning is the purview of the city planning commission, the council is considering a resolution directing the city planning commission to review the licensing board’s recommended change.

The one recommended change is to strike the following sentence: “Medical marijuana dispensaries and medical marijuana cultivation facilities shall be operated in compliance with the MMMA (Michigan Medical Marijuana Act).” [.pdf of the recommended zoning ordinance change]

The board’s recommendations on the award of the 10 licenses is not on the April 2 agenda.

Public Art Ordinance

The Ann Arbor city council enacted an ordinance in 2007 that sets forth funding requirements for public art in the city. It stipulates that all capital projects in the city set aside 1% of their budgets for public art, with a limit of $250,000 per capital project.

The nature of the funding mechanism – capital budgets – puts constraints on the type of project that can be funded as public art under the Percent for Art program. For example, the work of art must be permanent. The ordinance has faced criticism based on the fact that it appears to take funds designated and approved by voters or rate payers for one purpose (for example, repairing streets or providing a stormwater system) and to re-appropriate those funds for a different purpose (public art).

Ann Arbor’s city attorney, Stephen Postema, has to date resisted individual requests to produce a legal analysis of the city’s public art ordinance in the form of written opinion, which by city charter must be filed with the city clerk’s office and made public. But because the city attorney is, according to the city charter, under the direct supervision of the city council, he would be required to produce such an opinion if directed to do so by the city council.

That’s the direction that Kunselman’s resolution would give. In relevant part:

RESOLVED, City Council directs the City Attorney to provide a written opinion on the legality of transferring funds from the “street millage” fund to the “public art” fund as proposed in the FY 13 draft budget; and
RESOLVED, The City Attorney shall provide the written opinion to City Council by Monday, April 16, 2012; and
RESOLVED, The City Attorney shall file said written opinion with the Clerk in accordance with the City Charter.

[.pdf of complete resolution on city attorney opinion on public art]

Public Art Ordinance: Timeline

By way of additional background, the public art ordinance has been somewhat controversial since its approval in 2007.

• 33,000 BCE: Dude in cave draws on the wall.
• 2007-Nov-05: City council gives final approval to Percent for Art ordinance. [.pdf of ordinance text as approved on Nov. 5, 2007]
• 2009-Feb-01: At Sunday night council caucus, Marcia Higgins (Ward 4) expresses concern about the amount of money accumulating in the public art fund. Christopher Taylor (Ward 3) ventures that a Half-Percent for Art Program doesn’t have the same ring as the Percent for Art program.
• 2009-Nov-16: Through an attachment of a communication to the city council’s agenda, Stephen Kunselman (Ward 3) requests a written opinion from the city attorney on the legal basis of the public art ordinance. See Chronicle coverage: “Getting Smarter About City Charter“
• 2009-Dec-07: At the council’s meeting, Stephen Kunselman (Ward 3) expresses dissatisfaction that no city attorney opinion analyzing the legal basis for the public art program has been made public, and contends that the opinion is required to be made public in accordance with a city charter provision. (The city attorney asserted attorney-client privilege in responding to Kunselman’s Nov. 16, 2009 request.)
• 2009-Dec-07: Ann Arbor city council gives initial approval to a change in the city’s Percent for Art ordinance, reducing the amount allocated from capital project budgets from 1% to 0.5%.
• 2009-Dec-21: Ann Arbor city council decides to reject final approval to reducing the Percent for Art allocation from 1% to 0.5%.
• 2011-May-31: Marcia Higgins (Ward 4) proposes a budget amendment directing the city attorney to prepare a revision to the city’s public art ordinance, that would reduce the percentage of all capital projects designated to support public art – from 1% to 0.5%. The amendment fails.
• 2011-Aug-04: Mayor John Hieftje nominates Tony Derezinski (Ward 2) to serve on the public art commission, replacing Jeff Meyers, who resigned in June 2011. Derezinski is the first councilmember appointed to the commission. Hieftje indicates he’d like to review the city’s public art ordinance in September. Hieftje thus heads off council deliberations at that meeting about incorporating restrictions on the use of the city’s street millage for public art. The street millage was approved for the November ballot at the same meeting. The street millage easily passed.
• 2011-Sep-06: Stephen Kunselman (Ward 3), during communications time, points to a Tuscola County document that assures voters on a potential millage that funds for that millage could not be transfered out of the millage fund to be used for some other purpose. He questions how Ann Arbor’s public art ordinance conforms with that principle.
• 2011-Sep-19: Ann Arbor city council postpones public art ordinance amendements to Nov. 21, 2011. At the meeting, Carsten Hohnke (Ward 5) challenges Stephen Kunselman (Ward 3) to bring forward a resolution directing the city attorney to produce a public opinion on the legal basis for the the Percent for Art program. Kunselman indicates it should be a supporter of the program who would bring such a resolution forward.
• 2011-Nov-21: Ann Arbor city council gives initial approval to ordinance revision that would, among other things, reduce the funding level of the Percent for Art program from 1% to 0.5%.
• 2011-Dec-5: Ann Arbor city council votes to maintain funding level at 1%, but does agree to explicitly eliminate the general fund from use in the public art program. Another revision to the Percent for Art ordinance that did survive was an exclusion of sidewalk repair from the definition of capital projects that trigger the Percent for Art ordinance.
• 2012-Mar-19: At the city council’s meeting, during communications time, Stephen Kunselman (Ward 3) announces he’ll be bringing forward a resolution at the next meeting requesting an opinion from the city attorney on the transfer of street millage money to the public art fund.

TIF Capture

Another item added to the agenda on Friday by Stephen Kunselman (Ward 3) involves an issue that has lingered unresolved for almost a year. Last year, on May 2, 2011, the Ann Arbor Downtown Development Authority was set to ratify its side of a new agreement with the city of Ann Arbor under which the DDA would continue to manage the public parking system.

At the May 2 board meeting, however, it was announced that the vote would be postponed, in light of a previously overlooked detail of the ordinance that governs the tax increment finance (TIF) capture inside the DDA district. The ordinance (Chapter 7) appears to indicate a clear limit on the taxes that the DDA can capture from the taxing authorities in its district. The DDA postponed that vote, but eventually ratified the contract and reimbursed taxing authorities in its district for $473,000 in excess TIF that had been captured since 2003. Those taxing authorities include the Ann Arbor District Library, Washtenaw County and Washtenaw Community College. The city of Ann Arbor was due to be reimbursed for $712,000, but the city council waived that amount.

Subsequently, the DDA reversed its legal position and currently claims that Chapter 7 does not indicate a clear limit on its TIF capture.

Before taking a look at what the ordinance says, here is some brief background on how TIF works in general.

TIF Capture: Brief Background

A tax increment finance (TIF) district is a mechanism for “capturing” certain property taxes to be used in a specific geographic district – taxes that would otherwise be received by the entity with the authority to levy the taxes. So in the DDA’s TIF district, the DDA doesn’t levy taxes directly. Rather, a portion of the property taxes that would otherwise be collected by taxing units (like the library, community college and the county) is instead used by the Ann Arbor DDA for improvements within a specific geographic district, covering about 66 city blocks downtown.

What is the portion of the property taxes that is captured by the DDA? The captured tax is only that which applies to the difference between (1) the baseline value of the property when the district was first formed, and (2) the value of the property after new construction or improvements to the property. That difference is the “increment” in “tax increment finance.” Subsequent appreciation of property value due to inflation, after it’s been constructed or improved, is not included in the Ann Arbor DDA’s TIF capture.

TIF Capture: What the Ordinance Says

Chapter 7 of the city of Ann Arbor’s city code lays out how the tax capture of the Ann Arbor DDA is limited, or capped. The mechanism used to cap the amount of tax that can be captured by the Ann Arbor DDA is the projected value of the increment in the TIF district, as laid out in the TIF plan – a required document under the state enabling legislation for DDAs (Act 197 of 1975). From Chapter 7 [emphasis added]:

If the captured assessed valuation derived from new construction, and increase in value of property newly constructed or existing property improved subsequent thereto, grows at a rate faster than that anticipated in the tax increment plan, at least 50% of such additional amounts shall be divided among the taxing units in relation to their proportion of the current tax levies. If the captured assessed valuation derived from new construction grows at a rate of over twice that anticipated in the plan, all of such excess amounts over twice that anticipated shall be divided among the taxing units. Only after approval of the governmental units may these restrictions be removed. [.pdf of Ann Arbor city ordinance establishing the DDA]

The TIF plan includes a table that lays out the projected valuation of the increment in the district, starting in 2003. The table includes three scenarios for the projected valuation: “realistic,” “optimistic” and “pessimistic.” They’re each based on a constant percentage increase each year. So the three different scenarios are generated from three different estimates of the percentage increase each year. [.pdf of DDA TIF plan appendix]

TIF Capture: What Kunselman’s Resolution Says

Kunselman’s resolution does not acknowledge the DDA’s current legal position that Chapter 7 is inapplicable, but implicitly challenges that position by assuming Chapter 7 is applicable and asking for an analysis of the calculations. Among the issues that factor into the calculation are: (1) Does Chapter 7 involve real property only, or does it include personal property? (2) Which set of projections in the DDA TIF plan should be the baseline for the Chapter 7 calculation – the optimistic, pessimistic or realistic projections? (3) For Chapter 7 purposes, should the rate of increase be calculated year-to-year or cumulatively?

Depending on how the calculations are done, it could result in the DDA capturing several hundred thousand dollars less taxes each year in the future. For a look at the tax arithmetic, see previous Chronicle op-eds: “Column: Tax Capture Is a Varsity Sport” and “Column: Taxing Math Needs a Closer Look.”

In relevant part, here’s what Kunselman’s resolution says [.pdf of complete resolution on TIF capture]:

RESOLVED, Council directs city staff to review, analyze, and report on the compliance of the DDA provided TIF calculation and capture amount for the FY13 budget in accordance with the DDA development and financing plan, State law, and local ordinance; and
RESOLVED, city staff shall provide to Council an example of a TIF calculation and capture amount using the same methodology that resulted in the return of excess TIF funds to the taxing authorities in 2011 by the DDA; and
RESOLVED, city staff shall provide the example TIF calculation and capture amount and the report on the compliance of the DDA TIF calculation and capture amount in accordance with the DDA development and financing plan, State law, and local ordinance to Council by Monday, April 9th.

TIF Capture: Timeline Overview of Excess TIF Issue

• 2011-Apr-28: City of Ann Arbor chief financial officer Tom Crawford steps in as interim city administrator in the wake of Roger Fraser’s departure.
• 2011-Apr-29: City financial staff notice the implications for TIF capture that are written into the city’s 1982 ordinance which established the DDA. The timing of the discovery was reported by mayor John Hieftje at the DDA board’s May 2 meeting. In summary strokes, the ordinance provides that if the rate of growth in taxable value is more than what was anticipated in the TIF plan, then the DDA would capture only half of the increment on that additional value.
• 2011-May-02 (noon): The Ann Arbor DDA board was expected to ratify its side of the contract with the city of Ann Arbor under which it would continue management of the city’s parking system. Instead, it was announced that the board would be tabling the vote on the parking contract pending a closer review of the excess TIF capture issue.
• 2011-May-02 (7 p.m.): Ann Arbor city council strikes the city-DDA parking contract approval from its agenda.
• 2011-May-16: Ann Arbor city council begins its second meeting in May, at which it must approve the FY 2012 budget. The council does not vote on the budget, but recesses the meeting until May 23.
• 2011-May-20: At a special meeting, the Ann Arbor DDA board approves a parking contract with the city of Ann Arbor that provides 17% of gross parking revenue to the city of Ann Arbor. The approved contract includes a provision that the city of Ann Arbor will backstop the DDA’s financial position if the DDA’s fund balance falls below $1 million.
• 2011-May-20: At the same meeting, the Ann Arbor DDA board votes to affirm the excess TIF calculations raised at the May 2 meeting. The DDA calculates that a total of $1,185,132 should be returned to taxing authorities that levy property taxes in the downtown district. The city of Ann Arbor’s share of that is $711,767, with the remaining money owed to the Ann Arbor District Library, Washtenaw County and Washtenaw Community College. The method of calculation is “year-to-year” not cumulative, and is based on the “optimistic” projections in the DDA’s TIF plan.
• 2011-May-23: City council convenes the continuation of its May 16 meeting, but immediately recesses, likely in order to prevent any discussion of a proposal from Stephen Kunselman (Ward 3) to return responsibility for the public parking system from the DDA to the city of Ann Arbor’s public services area.
• 2011-May-25: “Mutually beneficial” committees from the city council and the DDA board meet and finalize language on fund balance underwriting and required consultation with the city council on rate changes in the proposed parking agreement.
• 2011-May-31: Ann Arbor city council votes to waive the $711,767 in excess TIF capture that the DDA calculated it owed to the city of Ann Arbor.
• 2011-May-31: At the same meeting, the Ann Arbor city council ratifies the city-DDA parking contract, which provides 17% of gross parking revenue to the city of Ann Arbor. The approved contract includes a provision that the city will backstop the DDA’s financial position if the DDA’s combined fund balance falls below $1 million.
• 2011-Jul-27: At a special meeting, the DDA convenes in closed session and emerges to approve a resolution that reverses its previous position on excess TIF capture. Now the DDA contends that the local ordinance doesn’t actually place a limit on its TIF capture.
• 2011-Aug-15: Ann Arbor District Library board holds closed session as part of its regular meeting to review the written legal opinion of its legal counsel with respect to the excess TIF capture. AADL board director Josie Parker indicates that the AADL will ask its legal counsel, Hooper Hathaway, to prepare a response to the DDA’s new position on the interpretation of the ordinance.
• 2011-Nov-02: Ann Arbor DDA holds a closed session to review the written opinion of its legal counsel on the issue of excess TIF capture.
• 2011-Dec-07: Ann Arbor DDA holds a closed session to review the written opinion of its legal counsel on the issue of excess TIF capture.
• 2012-Mar-19: Ann Arbor District Library director Josie Parker tells The Chronicle that AADL is not pressing the matter of the excess TIF, but is open to a conversation with the DDA.
• 2012-Mar-19: Stephen Kunselman (Ward 3) announces he’ll be bringing forward a resolution to address the issue of excess TIF capture. Kunselman has not consulted with AADL on the issue.
• 2012-Mar-21: During a budget update at the Washtenaw County board of commissioners meeting, the $348,000 received by Washtenaw County from the DDA in TIF reimbursement is presented as one of several factors contributing to the better-than-expected financial condition for the county.

April 2, 2012 Council Meeting

The Ann Arbor city council’s agenda includes a range of other business items as well. Each agenda is published online on the Wednesday before the council’s Monday meetings, using the city’s Legistar system.

The April 2 council meeting begins at 7 p.m. in city council chambers on the second floor of city hall, located at 301 E. Huron. The meetings are broadcast live on Channel 16 of the Community Television Network. The Channel 16 broadcast is also streamed live on the Internet.

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From left: Ann Arbor city councilmembers Tony Derezinski (Ward 2), Jane Lumm (Ward 2) and Stephen Kunselman (Ward 3) as they arrive to the March 19 meeting. Lumm was clearly feeling ill and was encouraged by her colleagues to head home, advice she heeded. (Photos by the writer.)

The council postponed for a second time (without deliberation) a resolution that would direct Ann Arbor’s city attorney to delay enforcement activities against medical marijuana dispensaries, except in limited circumstances. The only reason offered for postponing was to allow the absent councilmembers to participate in that vote. The same resolution had been postponed previously, at the council’s March 5 meeting. On that occasion, other deliberations had pushed the council’s meeting past midnight, and councilmembers had wanted to deal with the issue while they were fully awake.

And the council found itself unable to muster a six-vote majority for any intermediate action on a proposed change to the landscape and screening ordinance – and thus wound up simply defeating it. The changes would have restricted additional landscaping requirements just to those site plans requiring planning commission or city council approval, and would have exempted R4C (multi-family residential) districts from certain buffering requirements. Attempts to amend, postpone and table the resolution all failed on 5-3 votes, one vote short of the majority needed.

Several agenda items highlighted the Ann Arbor police department in some fashion. The council authorized the purchase of four new police vehicles, along with a street sweeper. And a new contract with the command officers union was one of two labor contracts ratified by the council at its meeting – the other was with the firefighters union. Deputy chief John Seto, who’ll be interim police chief when Barnett Jones retires at the end of the month, briefed the council on police activity on St. Patrick’s Day as well as during a severe storm the week before. Seto also was criticized during public commentary for a traffic stop he’s alleged to have made as a patrol officer in the mid-1990s.

The police department was also a key actor in the city council’s action to recommend to the Michigan Liquor Control Commission that the liquor license not be renewed for Dream Nite Club, located on Fourth Avenue in downtown Ann Arbor. At an administrative hearing earlier in the day on that issue, much of the evidence presented by the city was based on police reports or police officer testimony.

In other business, the council approved an upgrade to control room equipment for Community Television Network. The city also added a total of around 160 acres to its greenbelt program, while selling a tiny wedge of property on Summit Street that had a murky history. Also related to land and its use, the city gave final approval to a rezoning request for the Les Voyageurs Society property located near Argo Dam.

The council passed a resolution expressing opposition to pending state legislation, which has already won approval from the Michigan house of representatives, that would allow grass clippings to be dumped in landfills under certain conditions.

The topic of Fuller Road Station emerged during public commentary as well as during remarks at the council table.

And councilmember Stephen Kunselman (Ward 3) alerted his council colleagues that he’d be pressing two issues in the near future: (1) getting a written, public legal opinion from the city attorney regarding the city’s Percent for Art program; and (2) getting a calculation by the city treasurer of the tax capture to which the Ann Arbor Downtown Development Authority is entitled.

Direction on Medical Marijuana

The council considered for a second time a resolution that would direct the city attorney, Stephen Postema, to “delay all enforcement activities against medical marijuana dispensaries and cultivation facilities except for claims that they violate Section 5:50.1(3) of the City Code [zoning regulations], until the Council amends or rejects amendments to the zoning and licensing ordinances for medical marijuana.”

The part of the city code called out for continued enforcement in the resolution, Section 5:50.1(3), specifies the zones in the city where medical marijuana businesses may be located. From the code: “Medical marijuana dispensaries shall only be located in a district classified pursuant to this chapter as D, C, or M, or in PUD districts where retail is permitted in the supplemental regulations. Medical marijuana cultivation facilities shall only be located in a district classified pursuant to this chapter as C, M, RE, or ORL.” [.pdf of Section 5:50.1(3)]

The attempted resolution reflects an ongoing tension between the city’s medical marijuana licensing board and the city attorney’s office.

That tension between the medical marijuana licensing board and the city attorney’s office is highlighted in a statement sent by members of the board to city councilmembers on March 2, which reads in part: “[The city attorney's office] has been aggressively trying to shut [dispensaries] down while we actively try to license them.” The statement goes on to point out that a representative from the city attorney’s office had been present at all of the board’s meetings and that the board’s recommendations had been reported to the city council. But after that, the city attorney’s office had sent out new letters to all dispensaries requesting them to provide information about how their business operates. [.pdf of entire statement from Ann Arbor's medical marijuana licensing board to the Ann Arbor city council]

The attempted council resolution stemmed from a meeting of the city’s medical marijuana licensing board on Feb. 28 that was convened in response to concerns by several dispensary owners, who had received letters dated Feb. 24 from the city attorney’s office. The letters make specific inquiries into several aspects of the business model of dispensaries – in order to assess whether they are in compliance with Michigan’s Medical Marijuana Act. Compliance with the MMMA is a requirement for issuance of a medical marijuana license, and recipients of the letters have license applications pending with the city. Although the legal position of the city attorney appears to be that it’s possible for a dispensary to operate in compliance with the MMMA, no explication of what that model would entail has been set forth publicly.

Among the questions being posed to all dispensaries in the letters is the following: “Does any person or entity deliver marijuana to [Dispensary Name]? If so, does [Dispensary Name] ever pay, donate, or in any way give money to the person or entity who delivers the marijuana or to anyone else? If so, to whom is the money paid, donated, or given and how much?” [.pdf of set of letters]

The city council resolution was sponsored by Sabra Briere (Ward 1), who is the council’s representative to the medical marijuana licensing board. After its Jan. 31, 2012 meeting, the board submitted a required report to the council with recommendations on the issuance of the first dispensary licenses and revisions to the city’s medical marijuana ordinance. The report recommends to the council that 10 dispensaries be issued licenses.

The city council enacted zoning and licensing regulations for medical marijuana businesses at its June 20, 2011 meeting.

The resolution requested that the council decide on recommendations for amendments to the city’s medical marijuana ordinance before June 18, 2012.

Direction on Medical Marijuana: Public Comment

Chuck Ream told the council that he helps operate a medical marijuana dispensary in town that helps a lot of people. He offered councilmembers a pile of medical benefit report forms that they could read and see how medical marijuana can help people. Ream said he’d sent councilmembers an email about the science of medical marijuana, which he described as incontrovertible and conclusive. Right now they can get the medicine to the people, he said.

Ream told the council that the attempt at marijuana prohibition has nothing to do with marijuana, it’s about social control, he said. He told the council, “You guys have done the right thing in the past, even though it’s difficult.” He said he was confident they would do the right thing in the future. He reviewed the voter support for medical marijuana locally – 74% voted in favor of a charter amendment in 2004, he said. The voter-initiated state law in 2008 had enjoyed support of 79% of Ann Arbor voters, he noted. He said he didn’t think apple pie could bring in that kind of numbers.

What’s needed is a legal basis for dispensaries to exist and to be regulated in a reasonable and consistent manner, Ream said. Ann Arbor has demonstrated how that can be done [through its licensing ordinance]. He told councilmembers that they should be proud of themselves. He called the medical marijuana licensing board almost as smart as the council.

Local attorney Dennis Hayes, who represents some of the dispensaries in Ann Arbor, said he thought it would be a long time before he and Thomas Partridge agreed on everything, but he agreed with everything Partridge had said that night. [Partridge spoke about a right to affordable transportation, health care, education and housing. In the past, Partridge has also spoken against the city's initiative to license medical marijuana dispensaries.]

Hayes described the background of the resolution that the council was considering. The issue arose after a letter was sent to dispensaries asking for additional information. And the medical marijuana licensing board had proposed the resolution that was before the council that night. All the questions posed in the letter, Hayes said, were items in the original licensing ordinance drafted back in October 2010.

Those items were removed from the ordinance because it was clear that city couldn’t prevent that information from being disclosed, Hayes said. The licensing ordinance was discussed over a period of time, he said, and it was recognized in the course of that discussion that the city would wind up with information that it couldn’t protect, if the information were collected that’s asked for in the recent letter. Yet the questions have come back, he noted. He stated that it’s inappropriate for the city attorney to ask dispensaries for information that the city can’t protect against disclosure.

Direction on Medical Marijuana: Council Deliberations

Sabra Briere (Ward 1) immediately asked for a postponement of the measure. Mayor John Hieftje said he had no problem with a postponement. Christopher Taylor (Ward 3) asked on what basis Briere wanted to postpone. Briere indicated that some of the absent three members had expressed a desire to participate in the vote on the issue. To give them an opportunity to vote would be “good manners,” she said.

Outcome: The council voted unanimously to postpone the resolution giving the city attorney direction on enforcement of the city’s medical marijuana ordinance.

Liquor Licenses: Dream Nite Club, Rush Street

The council considered resolutions with recommendations concerning the renewal of annual liquor licenses for two downtown bars – Rush Street and Dream Nite Club.

For Rush Street the recommendation was for the Michigan Liquor Control Commission (MLCC) to renew the license, because the bar had finally paid nearly $10,000 in back taxes.

Assistant city attorney Bob West at the liquor license hearing on March 19, 2012.

But for Dream Nite Club, the recommendation approved by the city council was to object to the renewal of that bar’s license. The recommendation was consistent with the finding of hearing officer Tony Derezinski, a city councilmember representing Ward 2 who presided over a hearing earlier in the day on March 19. The hearing was scheduled to begin at 8 a.m., and lasted until the early afternoon.

The March 19 hearing had been set at the council’s March 5 meeting, when councilmembers had passed a resolution with an initial recommendation that liquor licenses for both businesses – Dream Nite Club and Rush Street – not be renewed this year. That initial vote was based on the recommendation of the city council’s liquor license review committee, which met on Feb. 23, 2012 to conclude its annual review of licenses in the city.

Initially, no one appeared on behalf of Rush Street at the March 19 hearing, but later, a representative did appear. Derezinski re-heard the matter and based on the report that back taxes had been paid, which was verified by city treasurer Matt Horning, Derezinski made the recommendation that the council recommend renewal of Rush Street’s license to the MLCC.

[.jpg file of map showing liquor license locations in Washtenaw County] [link to dynamic map showing liquor license locations in Washtenaw County] Note: Maps include all liquor licensees, not just those with on-premise consumption.

Liquor Licenses: Council Deliberations

Tony Derezinski (Ward 2) summarized what had happened at the hearings earlier in the day.

He characterized the rationale for the recommendation against renewing the liquor license for Dream Nite Club as based on numerous complaints and conduct on the premises and violation of state liquor laws. He told his colleagues that the hearing earlier in the day had included testimony from police officers, and a number of police reports had been provided as evidence. He noted that there were two court reporters taking notes – one for the city and one for Dream Nite Club.

Liquor Licenses: Hearings

During the portion of the Monday morning hearing observed by The Chronicle, at least a dozen different Ann Arbor police officers offered testimony, elicited by assistant city attorney Bob West, in support of the city’s contention that Dream Nite Club constitutes a nuisance. Legal counsel for Dream Nite Club – Roger Farinha and Brent Leder – sharply questioned the officers about their reports and the conclusions they drew from what they’d witnessed.

Roger Farinha, attorney for Dream Nite Club, at the March 19 liquor license review hearing.

Objections by Dream Nite Club’s counsel, contending hearsay evidence or a lack of foundation, became routine during the hearing – to the point that on several occasions, a “standing objection” was made to subsequent testimony and introduction of evidence. At one point Leder rose to object that the police officer who was providing testimony was doing so on behalf of another officer who could not attend the hearing, and that the absent officer’s testimony was itself hearsay – which made the testimony double hearsay.

Derezinski’s response to the objections was simply to advise that they were noted; however, he allowed the testimony and the admission of the evidence. During the hearing, assistant city attorney Bob West argued for admission of the evidence and the testimony, saying that the rules of evidence for administrative hearings are different from that for courts of law. From Michigan’s Administrative Procedures Act 306 of 1969 [emphasis added]:

24.275 Evidence; admissibility, objections, submission in written form.
Sec. 75. In a contested case the rules of evidence as applied in a nonjury civil case in circuit court shall be followed as far as practicable, but an agency may admit and give probative effect to evidence of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. Irrelevant, immaterial or unduly repetitious evidence may be excluded. Effect shall be given to the rules of privilege recognized by law. Objections to offers of evidence may be made and shall be noted in the record. …

The general direction of much of the cross examination by Dream Nite Club’s legal counsel mirrored the themes in a federal lawsuit that the owners of the club have filed against the city of Ann Arbor, which is currently pending in the U.S. District Court for the Eastern District of Michigan (Southern Division).

Tony Derezinski presided over the liquor license hearing on March 19, 2012.

The lawsuit, filed on Jan. 17, 2012, names the city of Ann Arbor, Ann Arbor’s police department, chief of police Barnett Jones, city administrator Steve Powers and former city administrator Roger Fraser. [.pdf of the complaint in V.R. Entertainment v. city of Ann Arbor]

The city of Ann Arbor answered the complaint, filing a motion to dismiss the claim. [.pdf of city of Ann Arbor's motion to dismiss] In responding to the city’s motion, V.R. Entertainment (Dream Nite Club) re-asserted its claim. [.pdf of response to motion to dismiss] A motion hearing is scheduled before judge Paul Borman on May 30, 2012.

The lawsuit contends violations of Section 1983 and 1985 of the Civil Rights Act of 1871 as well as violations of the U.S. Constitution – Fourth Amendment (prohibition of unreasonable search and seizure), Fourteenth Amendment (guarantee of due process), and Eighth Amendment (prohibition of unusual punishment). The lawsuit also claims infliction of emotional distress and conspiracy.

The set of facts alleged in the lawsuit includes the following:

10 On or about May 29, 2011, the City of Ann Arbor brought a nuisance action against the Plaintiffs for an alleged altercation and shooting that occurred in the vicinity of the Plaintiffs night club.

11 The fight and shooting in fact occurred on federal government property after the club was closed specifically the United States Postal Service Parking Lot, a property that does not belong to the club and is overseen by federal authorities.

12 The Defendants unjustly sought and obtained without a full hearing and without consideration to the facts a Temporary Restraining Order shutting the Plaintiffs club for several weeks; thereafter, a ‘security receiver’ was appointed to oversee the security at the club.

13 The report that was submitted by the ‘security receiver’ Mr. John Phillips indicated that the problems in the area came allegedly from the parking garage immediately next to the club, not from the club itself, albeit without evidence.

14 Throughout the State Court case, Case No. GCW-11-597-CH and up to the filing of this action, the Defendant Police Department has focused extraordinary police attention on the club without justification, routinely targeting surveillance on the club as evidenced by parked Police vehicles directly in front of the Plaintiffs club.

During the liquor license hearing, AAPD officers were asked under cross examination to comment on the assignment of patrol officers to the general vicinity of the Dream Nite Club. They were also asked to assess the demographic makeup of the crowd at the club.

Liquor License: Outcomes

Derezinski’s conclusion as hearing officer was based on the police reports as well as violations of the Michigan Liquor Control Code. His conclusion was that the city of Ann Arbor had a basis to object to the renewal of Dream Nite Club’s liquor license. For Rush Street, he concluded that the city should have no objection to the renewal. The council handled those issues on separate votes.

Outcome: On separate votes, the council’s unanimously recommended to the Michigan Liquor Control Commission that Rush Street’s license be renewed, but that Dream Nite Club’s license not be renewed. The license renewal will be decided by the MLCC.

Policing in Ann Arbor

Like the Dream Nite Club liquor license renewal, a number of other items at the March 19 council meeting touched on Ann Arbor police department activity. Blair Shelton led things off during public commentary at the start of the meeting – he’d attended the Dream Nite Club liquor license hearing earlier in the day as well.

Shelton had filed a lawsuit in 1995 against the city of Ann Arbor, after he’d been targeted in an investigation and eventually provided blood evidence for DNA testing. He sued for the return of his blood evidence and was successful. The complaint in the lawsuit alleged a set of facts that essentially amounts to racially profiling of Shelton, which is parallel to allegations in the current Dream Nite Club lawsuit. [.pdf of Shelton v. city of Ann Arbor police department]

Policing: Public Commentary

Blair Shelton told the council he was there to talk about the new police chief. By way of background, current chief Barnett Jones will be retiring at the end of the month. Deputy chief John Seto has been appointed interim chief.

Blair Shelton at the liquor license hearing for Dream Nite Club on March 19.

Shelton told the council that before he’d filed a lawsuit against the city in 1995, he’d been pulled over by Seto on Geddes near Forest Hill Cemetery in a brand new Camero. It was around 7 a.m., Shelton said. Seto didn’t say why he’d pulled Shelton over, he said.

Shelton told the council that when he looked at Seto, he thought, “Oh, great, an Asian police officer, I don’t have to worry about any, you know, typical Ann Arbor police.” Shelton then described how Seto had verified that Shelton had a driver’s license, had insurance and was the owner of the vehicle and had no police record. When Shelton asked Seto why he’d pulled him over, Shelton contended that Seto had replied, “You’re a smart guy, you can figure it out.”

Shelton told the council that he had figured it out. He concluded that there is no way Seto should be police chief. He said he’d spoken to many African Americans about trouble they’ve had with the police department, and that Seto’s name came up quite a bit.

Shelton wondered why Barnett Jones was being “pushed out.” He ventured that it was because Jones did not agree with DNA testing of everyone in the city. He said he’d spoken with Jones and liked him. He’d warned Jones that the city will turn on you and make you a scapegoat the first chance they get, he said. He contended that Jones had replied: I’m beginning to see that. Shelton stressed the importance of vetting the new police chief.

Former police chief Carl Ent wasn’t vetted, Shelton said, and it was discovered that he was having sex in the back of a patrol car. Dan Oates was also not vetted properly, he said, and alluded to an occasion when Oates had used his lights and siren in order to catch a plane. Shelton then concluded with an intended reference to city attorney Stephen Postema, saying that if adopting an African American child meant Postema couldn’t be labeled a racist, then he could still be labeled a “slave owner.”

Responding later in the meeting to Shelton’s remarks about chief Barnett Jones, mayor John Hieftje described Jones as his friend and stated that Jones’ decision to retire was entirely personal. The city would get Jones to stay on as chief, if that were possible. Jones’ decision came as a surprise, Hieftje said. He ventured that the deputy chiefs would be glad to have Jones stay on as chief. Jones deserves his time off, Hieftje said.

Policing: Fire, Police Labor Contracts

The council considered a resolution approving new contracts with its firefighters as well as with its police command officers.

The contract with Local 693 of the International Association of Fire Fighters (IAFF) is retroactive to July 1, 2010 and runs through June 30, 2014. Ann Arbor’s firefighters have been working without a new contract since the previous agreement expired on June 30, 2010. Features of the new contract include the restoration of pay to the 2008 level – the union had previously accepted a wage decrease of 3% in order temporarily to preserve jobs. The restoration to previous wage levels will take place over the course of two years, at 1.5% each year.

The contract reduces the food allowance for firefighters, who work 24-hour shifts. The contract also includes a change in the firefighters’ schedule to increase the average number of hours worked from 50.4 to 54. Health care provided under the contract meets the new state mandated hard caps on health care contributions by public employers.

The new contract with the Command Officers Association of Michigan runs retroactively from July 1, 2009 to June 30, 2013. The command officers have been operating without a contract since the expiration of the previous one.

The health care plan in the contract is similar to the health care offered to non-union city staff, with the state of Michigan’s mandated hard cap on the amount that a public employer can contribute to employees’ health care.

The council considered the two contracts on separate votes – they were listed as different items on the agenda. Up first was the contract for the firefighters. Marcia Higgins (Ward 4) said she was pleased to bring the firefighters resolution forward for the council’s labor committee, which has worked hard on it. [In addition to Higgins, others on the labor committee are Sandi Smith (Ward 1), Jane Lumm (Ward 2), Margie Teall (Ward 4), and mayor John Hieftje.] Higgins praised the firefighters union for working to resolve the contract outside the framework of arbitration. She called the agreement a “win-win,” and said she thinks it’s a good contract. She urged other councilmembers to support it.

Christopher Taylor (Ward 3) said he wanted to thank the labor committee for its work – as someone who does not serve on that committee. He also thanked the union for working with the city outside the arbitration process. Mayor John Hieftje complimented the labor committee and the members of the firefighters union. He remarked that this would be the first time in a long time that the city has all of its labor contracts settled. Higgins quickly interjected that this would be true as soon as the command officers contract was approved. When that contract came up as the next item on the agenda, Higgins said she hope this meant there would be labor peace for at least some period of time.

Outcome: The council unanimously approved both labor contracts on separate votes.

Policing: Police Cars

The council considered separate resolutions that authorized the purchase of a total of four police cars from three different vendors: two from Gorno Ford for $49,420; one from Signature Ford for $27,067; and one from Shaheen Chevrolet for $26,081.

The acquisition of the vehicles comes in the context of the city’s planned evaluation of pursuit-rated vehicles from all three major manufacturers in the wake of the retirement of the Crown Victoria, a model that was retired by Ford last year.

Outcome: The council voted without comment to approve the purchase of the vehicles.

Policing: Graffiti

Sandi Smith (Ward 1) said she’d heard a lot about graffiti and that there’s been a lot of dialogue about it. There’d been a commercial building completely cleaned and hit from top-to-bottom within 72 hours of it being cleaned. The issue is “creeping,” She thought it would be a good time to have an update from the police about what the public can do. People are getting very frustrated, she said.

Mayor John Hieftje (left) and deputy chief of police John Seto, who'll serve as interim chief when Barnett Jones retires at the end of March.

When deputy chief John Seto was at the podium to report on St. Patrick’s Day policing issues, mayor John Hieftje asked Seto about the graffiti. As he typically does, Hieftje mentioned the fact that he attends a weekly Wednesday meeting with the city administrator and the police department about crime in the city. Hieftje said he knew that the police department is “engaged on this issue,” saying that graffiti has risen to a higher priority than he’d ever seen. Hieftje said it’s not just an Ann Arbor problem – there’s a surge of graffiti among communities nationwide, he said. And one of the theories for that is that it’s been glorified on the Internet, Hieftje said.

Seto said the police had heard the frustration from citizens and the community. He said there’s a detective assigned to graffiti cases, and the department is trying to combat the problem. There’s a lot of awareness of the issue within the police department, but also in the community, he said. And the department continues to explore all its options.

Smith asked Seto for recommendations for homeowners or business owners. She’s told people to call community standards. Seto allowed that calling community standards is a good option for correcting the situation once the graffiti is there. But it’s also important to be alert so that the police can be notified when perpetrators are doing the graffiti – in the act or soon afterwards, he said.

Policing: Tornado

Sabra Briere (Ward 1) reminded the public that the neighborhood of the broader community had suffered from a tornado. [On March 15, a tornado touched down in the Dexter area, west of Ann Arbor.] She said that who are able should be doing what they can to help rebuild houses, schools, businesses and lives.

Marcia Higgins (Ward 4) reported that on Thursday night [March 15] she’d called city administrator Steve Powers to see how Ann Arbor was faring as a city after the storm. The southwest side (which includes Ward 4, represented by Higgins) got hit really hard. As she was driving home, lightning hit a transformer, and there was a live wire dancing around the street. She’d also watched a garage get hit and a resulting fire. She said that city staff had responded well.

Several “lakes” had formed and were named for the streets where they were located, Higgins said. It was good to see people helping each other, Higgins said, getting cars out of the deep water. There were two firefighters injured, she said, and she hoped the city would get a report that they’re doing better. The staff did a good job and it was quite a display, she said.

During his report to the council, Powers noted that by the luck of nature, the storm on Thursday was less damaging than it could have been. Two firefighters were injured by the live wire Higgins had described earlier. One firefighter had been off-duty until the previous day.

Six roads were barricaded in connection with the storm, Powers said. High-priority roads were chosen for those barricades. There’d been six reports of basements flooding and two property owners had accepted the city’s offer of assistance for catastrophic cleanup. Compared to surrounding communities, Ann Arbor was very fortunate, he said.

Deputy police chief John Seto told the council that between 6-9 p.m. the police department received 64 calls for service, the majority of which were to assist motorists who’d been trapped in the rising water. The police department also assisted the fire department in responding to a structure fire as well as to some smaller fires created by downed wires.

Craig Hupy, interim public services area administrator, also stepped to the podium to respond to councilmember questions about the city’s response to the storm. Briere said that after the storm she’d driven through several low-lying areas. She’d spoken with a crew that was staffing a truck dealing with cleanup efforts, and one of the crew members said next time the city repaves Depot Street, the stormwater pipes should be enlarged. Briere said she had no way to assess whether that was a good idea or a bad idea. But she wanted to know when Depot Street is up for repaving.

Hupy said he didn’t know off the top of his head when Depot Street would be repaved. Generally, he said, stormwater on Depot Street flows to the west. He described a project that had been put in to give some relief in Depot Street and take the water directly to the Huron River. The challenge there is that you have to cross the MichCon site, and the cost of constructing across a contaminated site is so high that the project never went to its full scale. Hupy and Briere agreed that the basic problem is that the area is in the floodplain.

Stephen Kunselman (Ward 3) asked for information on the amount of rainfall. Hupy gave a report out from the city’s rain gauges, but noted there was a possibility that accuracy had been affected due to the hail.

Policing: St. Patrick’s Day

City administrator Steve Powers described the St. Patrick’s day events as also somewhat weather-related, but ventured that the outcome was determined not by luck but by decisions made by police officers on Saturday evening.

Deputy police chief John Seto noted that this year, St. Patrick’s Day fell on a Saturday and came in conjunction with unseasonably warm weather. From the 24 hours from 6 a.m. to 6 a.m., the police department had received 308 calls for service, Seto told the council. By way of comparison to a similar timeframe for the previous week, he said, that’s twice as many. Five arrests were made in which someone was taken into custody, three of which were for fighting.

There was a period of time when the crowd grew to a point where South University Avenue needed to be closed off for the safety of the public, Seto said. Working with the University of Michigan department of public safety, he said, officers were able to clear the street of people in 90 minutes without any major incidents.

Sabra Briere (Ward 1) told Seto she’d begun receiving complaints about debris left from Saturday. She wondered what the role of community standards officers would be in addressing that debris. Briere had alluded to football Saturdays in her question, and Seto described how that’s addressed through the day on a Saturday and on that evening. Seto indicated that community standards officers had gone out to address the St. Patrick’s Day litter on Monday morning.

Stephen Kunselman (Ward 3) asked what kind of people took part in the St. Patrick’s Day revelry – were they students, or did they come into the city from out of town? Seto said the police don’t keep track of whether someone is a student, but said that they were not all students. A lot of visitors came from outside the city, Seto said.

Landscaping Buffer Change

The council considered a resolution that would have made changes in landscaping and land use buffer requirements in the city code. The council had previously postponed the vote from its March 5, 2012 meeting.

The first change would have restricted some requirements that have been added recently just to those plans that require city planning commission or city council approval: (1) providing landscaped islands for every 15 parking spaces; and (2) providing bioretention areas in 50% of the interior landscaping areas. Administrative amendments to existing plans would not trigger the requirements.

The second change would have involved existing requirements to provide buffers between parcels with conflicting land uses. Recent amendments to the code had added requirements that properties in R3 (townhouse dwelling) and R4 (multiple-family dwelling) districts include a buffer along the side and rear property lines if the parcel is immediately adjacent to a property that is principally used or zoned as residential.

The change considered by the council on March 19 would have removed the R4C zoning district from the recently-added land use buffer requirement. The rationale for exempting the R4C sites from the requirement was characterized in the staff memo as due to the fact that the R4C sites “are typically located on small lots in older neighborhoods near downtown. Most R4C lots are too small to accommodate a 15-foot wide conflicting land use buffer along the entire side and rear property lines.”

City councilmembers’ discussion included their interest in first receiving the report of a study committee, which has been looking at possible revisions to the R4C and R2A zoning code. The committee has looked at the issue of establishing maximum lot sizes in R4C districts, to prevent the accumulation of multiple parcels for a single project.

The change had been recommended 6-2 by the planning commission.

Landscape Buffer: Council Deliberations

Sabra Briere (Ward 1) led off deliberations by noting that she’d raised the point at the council’s previous meeting that the focus of the proposed ordinance change is on property zoned R4C. Because the R4C/R2A study committee is still going through its process and has not yet issued its report, Briere was interested in making sure the council did not modify the zoning code to eliminate protections for R4C properties. Briere noted the staff memo had described R4C parcels as generally small, so it would be difficult to apply the code and include a buffer.

However, Briere continued, it’s possible to combine R4C parcels to make a larger site for building. So Briere proposed to include R4C back into the list of zoning classifications that require a buffer. In terms of the actual wording of the proposed change, that meant eliminating the listing of R4 types, of which R4C is one. If all R4 types required a buffer, then R4C would as well.

City councilmembers Sabra Briere (Ward 1) and Tony Derezinski (Ward 2).

It’s worth pointing out that the “amendment” considered by the council with respect to R4C would essentially have taken the proposed revision to the city code and restored it to the status quo.

Marcia Higgins (Ward 4) inquired of Briere when the issue of R4C property might be taken up – after the study committee’s report comes out? Briere allowed that the council might see that report and decide not to revise the buffer requirement at all.

Higgins wanted to postpone consideration until the council sees the study committee report. She felt it would be “cleaner” to handle all the ordinance revisions that were going to be undertaken all in one go, instead of piecemeal. Briere wanted to know if Higgins was making a formal motion to that effect. Higgins said she would move for postponement, but that Briere would need to withdraw the effort to amend the proposal. Her amendment, explained Briere, was a effort to respect the planning staff recommendation to move ahead on the other aspects of the proposed revision – which related to the kinds of projects that trigger the landscaping requirements.

Tony Derezinski (Ward 2) described how a final draft of the R4C study committee is currently being circulated. He agreed with Higgins that it’s better to handle everything together. His own view was that postponing the resolution would be better, and it could then be folded into the broader ordinance revision.

Higgins asked city planner Alexis DiLeo if it would be burdensome to the staff if council postponed the proposed revision. DiLeo indicated that postponing all of the revisions might be burdensome – there’s a somewhat pressing need for some of them, she said. However, with respect to Briere’s proposed amendment, it would not have a very large impact. For the part Briere wanted to amend out, it’s workable to deal with a postponement of a few months, DiLeo said.

Higgins observed that over the years, when the council has done things piecemeal, it’s created some of its own problems. She was less inclined to approve just part of the proposed revision. She said it sounded like, based on Derezinski’s remarks, that the study committee report is coming soon, so she’d support postponing. At that, Briere withdrew her proposed amendment.

Derezinski then moved to postpone the issue until the second meeting in April.

Christopher Taylor (Ward 3) asked if the R4C/R2A study committee would include recommended ordinance changes. Derezinski indicated that it would not include explicit proposed ordinance changes. Rather, it would include the relevant concepts – setbacks, bundling of parcels and the like. That report would go first to the planning commission for drafting of ordinance language.

Based on Derezinski’s description of what would be included in the study committee’s report, Taylor said he would not support postponement. The work of the committee has been hard and difficult, but it’s taken longer than expected, he observed. Clean language is not going to be brought forward in the report. And the city planning staff says some of the revisions being proposed now would be useful now. So let’s get it done, Taylor suggested.

Mike Anglin (Ward 5) indicated he was in favor of postponement and alluded to the hard work of the citizen study committee.

Mayor John Hieftje wanted to know why R4C was not included in the R4 classifications that would require a buffer. DiLeo reviewed how about nine months ago, the ordinance was revised to require the buffer – for R4C as well. Subsequently, the planning staff felt it would be good to remove the R4C area, so that R4C areas could be treated comprehensively. Based on DiLeo’s remarks, Hieftje said he would not support postponement, but would like to go back to consider Briere’s previous amendment.

City councilmember Marcia Higgins (Ward 4).

Higgins expressed her disappointment at the view of Hieftje and Taylor, noting that the council had tasked the committee to do the work, and now a report was a month away from being produced. She felt if the council were not going to see the report for another six to eight months, she’d be less amenable to postponing.

Higgins cited Derezinski’s status as the city councilmember representative to the planning commission, saying that if the city council’s planning commission liaison says it makes sense to postpone, she felt she was willing to support postponement, and she encouraged her colleagues to support postponement as well.

Hieftje pointed out to Higgins that Derezinski had said the report would not contain specific ordinance language. Derezinski, however, followed up by saying that Higgins was “right on the money on this one.” Derezinski recalled how the study committee was first formed with one citizen representative per ward. That was then doubled to two citizens per ward. That doubled the amount of input, Derezinski said. Additional extended meetings were held so that other groups in the community could be included, he said. The council’s resolution didn’t ask for ordinance language from the study committee, he said. Derezinski said no one likes to kick the can down the road – but it’s a short road and a small can, he contended.

Taylor again pointed out the difference between two portions of the proposed revision under the council’s consideration – the portion that refers to R4C and portion that refers to site plan review, which the planning staff indicated would be useful to have in place now.

Anglin mentioned that small R4C parcels near downtown are not the only properties zoned R4C. Briere agreed with Anglin and noted that R4C areas near downtown could be at risk of a consolidation of lots, yielding a large lot where no buffer would be required. She felt it’s premature to go ahead with that portion of the revision that deals with R4C areas, but indicated agreement with Taylor’s point of view, saying that her bias is to go forward with the things that can be done today. Even with the study committee report in hand, she said, it could take a long time before an ordinance revision was drafted.

Outcome on postponement: The vote for postponement failed on a 5-3 vote. Voting for it were Anglin, Smith, Derezinski, Kunselman and Higgins. Voting against it were Briere, Taylor and Hieftje.

The council then returned to Briere’s amendment, which she re-introduced. It would have restored R4C as a zoning classification that required a buffer. Briere said she felt she was not causing conflict by essentially removing a staff-proposed revision to the ordinance. If it needed to be revised in the future, she said, the council could do that.

Derezinski indicated that rather than bounce back and forth, he felt the best way would be to consider the issue in the context of the study committee report, and he asked his colleagues to join him in voting against the amendment.

Taylor said he understood the vote for Briere’s amendment as a vote for the status quo. It does no violence to the ordinance and the consistency principle is maintained, Taylor said. He’d support the amendment. Hieftje said the amendment would continue to protect R4C areas.

Higgins characterized the amendment as yet another example of making changes at the council table when extensive work on a complex project had been done. She said she would not support the amendment or main motion.

Outcome on amendment: The amendment failed on a 5-3 vote. Voting for it were Hieftje, Smith, Briere, Taylor and Kunselman. Voting against it were Anglin, Derezinski and Higgins.

With the main motion back before the council, Briere said she’d take Higgins’ advice and vote no.

Kunselman said he’d also lean toward a no vote. He sought confirmation from the city attorney that all the council’s options would be preserved, even if the council voted down the proposed revisions.

Sandi Smith (Ward 1) indicated that instead of voting it down, she would prefer to table the resolution. [Tabling is functionally similar to postponing, but does not include a specific time at which the council needs to consider the action again. After six months, if a tabled agenda item has not been taken back up, it automatically dies.] So Smith put forward a motion to table the issue.

Higgins pointed out that a tabled item needs to be brought back in six months. She felt that would allow enough time for the planning commission to put together an entire package of recommended revisions based on the R4C/R2A study committee recommendations. Derezinski indicated that he totally agreed with Higgins.

A Community Television Network technician swapped out mayor John Hieftje's microphone during the March 19 meeting.

Briere pointed out that if the revision were simply defeated, they could be brought back to the council in whatever form it’s deemed appropriate. But with a motion to table, the resolution would need to be taken up off the table with exactly the same language that is currently in front of the council. So tabling would be the best outcome only if the council wants to see the same language again in the future.

Kunselman wondered if that night’s agenda could simply be re-opened – with the idea that the council could simply solve its dilemma by taking the item off the agenda. Hieftje, who presides over the meetings, indicated no enthusiasm for getting Smith to withdraw her motion to table, so that Kunselman’s suggestion could be pursued. So he simply told Kunselman there was a motion on the floor to table. Hieftje observed that the council did not seem to be accomplishing very much.

Taylor briefly reiterated his view that there’s part of the proposed revision that has current usefulness, indicating his disinclination to support tabling.

Outcome on tabling: The motion to table failed on a 5-3 vote. Voting for tabling were Anglin, Smith, Derezinski, Kunselman, and Higgins. Voting against it were Briere, Hieftje and Taylor.

On the question of the (unamended) ordinance revision, Hieftje said he wouldn’t support it, because the amendment had not been approved.

Outcome on the main question: The council rejected the ordinance revision on a 1-7 vote. The sole supporting vote was from Taylor.

Les Voyageurs Rezoning

The council considered a resolution to give final approval to a rezoning request and a site plan for an addition to the Habe Mills Pine Lodge – owned by the Society of Les Voyageurs. The rezoning was unanimously recommended for approval by the Ann Arbor planning commission at its Jan. 19, 2012 meeting. It also received initial approval from the city council at its Feb. 21, 2012 meeting.

The property owned by the society, at 411 Long Shore Drive near Argo Pond, is zoned public land, even though it’s owned by a private entity. The society is asking that the land be rezoned as a planned unit development (PUD), which would allow the group to build a 220-square-foot, one-story addition to the rear of the existing lodge, on its east side.

The nonprofit society is a University of Michigan student and alumni club, focused on nature and the outdoors. Named for French-Canadian voyageurs of the Great Lakes fur trade, it was founded in 1907 and is one of the university’s oldest fraternal student groups. The lodge was built in 1925 – about the same time as the city’s first zoning ordinance and zoning map. Five student members live at the lodge, and society alumni gather there for potluck Sunday dinners from September to April.

Les Voyageurs: Public Hearing

Thomas Partridge stated that he felt the French name of the society illustrated that what was being requested was a decision based on privilege, and claimed that it was related to the society’s connection with the University of Michigan. He called for every rezoning request to be tied to a requirement of paying into a fund to establish adequate and radically expanded affordable housing within the city of Ann Arbor.

Les Voyageurs: Council Deliberations

Responding to Partridge’s comments immediately following his turn at the microphone, mayor John Hieftje described the society’s house as an old house down by the river – not fancy. Hieftje ventured that it was hard to see how it could be criticized.

Stephen Kunselman (Ward 3) noted that he believed there was a regular Sunday night dinner that would provide an opportunity for Partridge to visit and mingle with members of the society. Kunselman also ventured that the society had a backyard chicken permit so they’re doing what they can to maintain the property in a sustainable fashion. It’s a benefit to the society and the whole community to provide the proper zoning, Kunselman said.

Outcome: The council gave unanimous final approval to the Les Voyageurs rezoning.

Greenbelt Acquisitions

The council considered a resolution authorizing the purchase of development rights for two additional properties under its greenbelt program – the Van Natter Farm in Webster Township (about 25 acres for $126,867) and the Boike Farm in Northfield Township (about 136 acres for $502,307). Both owners agreed to make a donation of 20% of the fair market value of the property as part of the deals.

Greenbelt: Related Public Commentary, Council Communication

Kermit Schlansker addressed the council by saying that the government is breaking the Golden Rule – by not planning for the future. By not making material sacrifices that would help our children, we’re not treating our progeny in the way that we’d like to be treated, if we were them. We face a sure prospect of eternal poverty for our grandchildren and grandchildren, he said. As the price of oil grows so high that poor people can’t buy the gasoline they need to go to work, great hardships will follow, he warned. Urban sprawl is not just deplorable, it will become a killer if we don’t start to deal with it.

The only way to reduce energy use to sustainable levels is to use compact housing that reduces energy use by having reduced heating and transportation needs, Schlansker said. Common sense says we should put as much biomass back into the soil as possible, to make it more fertile, yet we ignore these basic concepts of sustainability, he said. He told councilmembers that when they are his age, they might be desperate because of the increased costs for everything. Schlansker reported that he’d attended a recent city forum on sustainability and based on that compared the city’s efforts to using a toothpick to shovel out from a snowstorm.

Schlansker called for a ring of farms around the city that could help feed the city. The starting point should be a series of colloquia, not lectures, he said. He called for an expansion of the city’s energy commission, in order to start implementing that.

Mayor John Hieftje responded to Schlansker’s comments by saying he was glad that Schlansker had mentioned the series of sustainability forums. He contended that the city was, as Schlansker had recommended, planning for local agriculture and doing more in that area than any other city Hieftje was aware of. He alluded to the building of hoop houses on greenbelt properties.

Sabra Briere (Ward 1) followed up later in the meeting on the issue of sustainability, by mentioning that the city is looking at updating its solid waste plan. At some point, she said, that plan will come before the city council. There will be public engagement meetings in May 2012, she said. She ventured that it’s well past time to rewrite the solid waste plan.

During the brief council deliberations about the greenbelt acquisitions, Briere connected the acquisition of the land to Schlansker’s remarks during public commentary. Hieftje observed that the size of the Van Natter property was small, but good for growing food that could be sold at the farmers market.

Sandi Smith (Ward 1) asked for a future update on the finances of the greenbelt program, including the endowment and what the endowment is being used for. [A detailed financial update for the past fiscal year, which ended June 30, 2011, was given at the greenbelt advisory commission's September 2011 meeting.]

Outcome: On separate votes, the council approved both greenbelt acquisitions.

Grass in Landfills

The council considered a resolution supporting the continued maintenance and enforcement of a 1990 statewide ban on adding yard waste, like lawn grass clippings, to landfills.

The city council’s resolution came in opposition to two bills, HB 4265 and HB 4266, passed by the Michigan state house of representatives on March 15 on a 67-40 and 66-41 vote, respectively. Together the bills would allow for yard waste to be added to landfills under certain conditions – when the landfill has a gas collection system and that gas is used in the production of electricity. Ann Arbor’s now-closed landfill uses such a gas collection system, which has produced around 3,000 MWh (mega-watt hour) of electricity a year. [.pdf of analysis of HB 4265 and HB 4266]

The council’s resolution was accompanied by a staff memo contending that methane gas-fueled generation is a less effective way to manage wastes, citing the U.S. Environmental Protection Agency’s municipal solid waste assessment: “Combustion or gasification with energy recovery, or waste-to-energy (WTE), is the environmentally preferable route for mixed solid wastes that are neither recyclable nor compostable.” The council’s resolution cites in situ composting as a more beneficial policy than adding yard waste to landfills in order to create and collect methane gas for electricity generation.

The council’s resolution also criticizes the pending state legislation for creating an “unfair competitive environment for yardwaste resources, impacting current tipfees and pricepoints.” Ann Arbor’s current costs for disposing of waste in a landfill is $24.83/ton, while its composting costs are $19/ton.

Mayor John Hieftje said that the legislation was being pushed by landfill owners. Stephen Kunselman (Ward 3) said that in his past he’d worked as an intern with the city and delivered yard waste. He said the politics of landfills and solid waste are well known.

Outcome: The resolution against putting yard waste into landfills was passed on a unanimous vote of the eight councilmembers present.

Sale of Land Wedge

The council was asked to consider the sale of 877 square feet of city land on Summit Street for $7,500.

The wedge-shaped parcel of land on Summit Street that is being sold by the city.

The parcel apparently had a murky history and was a part of the right-of-way for Wildt Street. Sale of the land to the owner of the immediately adjacent property will allow the new owner to construct a duplex after demolishing a dilapidated nuisance property.

Outcome: The council unanimously approved the land sale.

New Street Sweeper

The council considered a resolution authorizing the purchase of an Elgin street sweeper from Bell Equipment Co. for $175,175. It’s a replacement of a 10-year old sweeper that has required frequent repair over the last two years. The staff memo accompanying the resolution indicates that over the last two years, the old sweeper required maintenance and repairs 82 times with a total cost of more than $104,300.

The old sweeper will be cannibalized for high-value parts to be used by other sweepers in the city’s fleet, all of which are Elgin sweepers. The remaining vehicle shell will be sold as scrap metal.

Outcome: The council voted without comment to approve the purchase of a street sweeper.

Television Upgrades

The council considered a resolution approving a purchase order for $118,620 with VTP Inc. for an upgrade to the Community Television Networkstudio and control room equipment. The equipment will give CTN high-definition video capture capabilities to create television productions and internet content.

Outcome: The council approved the CTN equipment upgrade without deliberation.

Communications and Comment

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

Comm/Comm: Public Art – Attorney Opinion

Toward the end of the meeting, during time reserved for councilmembers to communicate to the public and to their colleagues on upcoming issues, Stephen Kunselman (Ward 3) told his colleagues he’d be bringing forward a resolution that would provide the necessary direction to get a written opinion from the city attorney regarding the legal basis of the city’s public art ordinance. Kunselman contends, along with many others in the community, that the use of dedicated millage funds or fees by the public art program does not conform with Michigan law.

It’s an issue Kunselman has talked about for over two years, but he has never gone as far as to bring a resolution to the council table.

Comm/Comm: DDA TIF Capture

Kunselman also alerted his colleagues to the fact that he’d be bringing forward a resolution related to the computation of the taxes that can be captured by the Ann Arbor Downtown Development Authority in its tax increment finance (TIF) district.

Stephen Kunselman (Ward 3) wrangles his computer power cord at the start of the March 19 meeting.

By way of background, in May 2011 the city pointed out a provision in the DDA ordinance that indicates a limit on the amount of taxes that can be captured, based on the rate of increased taxable value in the DDA TIF district. It resulted in a return of taxes by the DDA to other taxing authorities. It’s an open question as to whether the amount of returned money was correct.

Subsequently, the DDA took a completely different position, saying that the ordinance does not limit TIF capture, and that it had not needed to return the money it had already paid.

One of the other taxing authorities, which has some of its taxes captured under the DDA TIF, is the Ann Arbor District Library. At the library board’s most recent meeting, AADL director Josie Parker indicated that the library’s position has not changed with respect to the interpretation of the ordinance. It’s up to the DDA as to whether they want to have a conversation, she said.

In a phone interview after the library board meeting, Kunselman told The Chronicle that he had not had any communication with Parker about the TIF capture issue.

[For background, see Chronicle coverage: "Library Weighs DDA Excess Tax Decision" and "Column: Tax Capture Is a Varsity Sport"]

Comm/Comm: Fuller Road Station

During public commentary, Rita Mitchell reviewed how the University of Michigan pulled out of a university-city partnership to build a parking structure at the Fuller Road location. [See Chronicle coverage: "UM, Ann Arbor Halt Fuller Road Project"] She felt it’s a good time to reassess where the city is going with the project, and it’s time to have open discussion about it. That discussion, she said, had started the previous Friday in the form of a walkaround on the property across from the current Amtrak station, organized by Sabra Briere (Ward 1). It was great to have members of the city staff there to have a give-and-take discussion about the kinds of things that can happen for rail service to Ann Arbor, she said.

During a walkaround on Friday, March 16, 2012, an Amtrak train pulled into the station as the group of residents and staff were talking.

Mitchell felt that everyone supports non-motorized transportation into town and out of town with less use of cars. But she said the discussion needs to be careful and open – more open than she felt it’s been so far. She then ticked through some questions that she said should be answered: (1) How would a station be funded? (2) Should Ann Arbor own and operate a train station? Does Ann Arbor have the resources to do that? (3) What’s a good design, and what’s the appropriate location? (4) How can the alternative locations be assessed impartially?

Mitchell then indicated some attributes she felt the location of a train station should have: It should support the downtown and the Lowertown area, and provide easy non-motorized access to its location. She suggested a continuation of the dialogue.

Following public commentary, when Mitchell had made her remarks on the location of a new train station, Mike Anglin (Ward 5) took the occasion of the council communications time to address the Fuller Road Station project and Fuller Park – he said he liked to refer to it as Fuller Park because it is a park. He said he wanted to review the four resolutions the council had considered in connection with the project. The very first one, he said, he’d voted for. In November 2009, Anglin said, there’d been additional money appropriated. The specific council votes to which Anglin referred to were these:

• 2009-Aug-17: Ann Arbor city council approves $213,984 of city funds for an environmental study and site assessment. Of that amount, $104,742 was appropriated from the economic development fund.
• 2009-Nov-05: Ann Arbor city council approves memorandum of understanding with UM on Fuller Road Station.
• 2009-Nov-05: Ann Arbor city council authorizes additional $111,228 for environmental study and site assessment.

A subsequent action that Anglin contends is connected to the Fuller Road Station project was taken by the council on June 20, 2011. That was the award of a $1,216,100 construction contract to Hoffman Brothers Inc. The project involves relocating a sanitary sewer south of Fuller Road, and east of the Maiden Lane and East Medical Center Drive intersection.

Standing is councilmember Mike Anglin (Ward 5) as he talks with city administrator Steve Powers before the start of the meeting.

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

Anglin voted for that contract award at the June 20 meeting, but then brought it back for reconsideration on July 5, 2011 and voted against it. His was the only dissenting vote.

At the council’s March 19, 2012 meeting, Anglin said he felt the city was starting to wade into the water of the project without the council’s approval. He said he was glad that the walkaround had taken place on Friday. But he said that as a council, they are tiptoeing into the water and it’s getting deeper and deeper. He wanted to re-evaluate the whole item so the city doesn’t keep spending staff time on it.

During his own communications, mayor John Hieftje responded to Anglin’s remarks by saying the Fuller Road Station process is ongoing, and there would be council action requested in the next little while. With respect to Anglin’s review of the action to date, Hieftje said, he believed that those expenditures will help secure the $2.8 million federal grant that is part of the federal funding for the a train station.

If you go back and read the record, Hieftje said, the $1.3 million utilities relocation work was a “free-standing effort” that benefited the Fuller Pool area and the UM hospital – and something like 30,000 people in Ward 1. It had been part of the program of utility work for some time, he said. It could have been done this year or next year, Hieftje said, but it was something that the council had decided was a free-standing effort.

Comm/Comm: Warming Center

Alexandra Hoffman made some remarks in support of medical marijuana dispensaries, but told the council she was there to talk about the Imagine Community. She reminded the council that representatives of the community have been coming to council meetings since the fall of 2011, and they’d been talking about the possibility of using the city-owned building at 721 N. Main since December. It would be a simple space, she said, that the city would still own, for the people of Ann Arbor to work on and congregate in. Liability has been an often-voiced concern, she noted, so one of their community, Alan Haber, has suggested that a lease could be signed and the liability could be transferred to her organization. She then showed the council a lease drawn up on poster board to illustrate what elements such a lease might contain.

Hoffman allowed that the winter is over, but the community will continue to work to prepare for next year, she said. There will be a fundraising benefit held on April 1, 2012, after the FestiFools parade, she said. [The April 1 event will be held at Hathaway's Hideaway from 5:30-7:30 p.m.] Every Wednesday from 4-6 p.m. the group has been holding a vigil in front of the old Borders store on East Liberty. She reported that last week a police officer had asked the group to take their banner down: “Let the people in.” Their banner would continue to say that and she hoped that they would not allow Ann Arbor to be turned into a city that silences protest.

Comm/Comm: Access to Knight’s

Mike Anglin (Ward 5) thanked staff for ensuring that businesses along Dexter Avenue will remain accessible during the construction work along that road, including Knight’s restaurant. Knight’s will remain open, he said.

Comm/Comm: Argo Cascades

Christopher Taylor (Ward 3) gave a brief update from the park advisory commission, on which he serves as one of two councilmember representatives. The newly-constructed bypass around the Argo Dam – which has been named the Argo Cascades – is quickly becoming a favorite, he reported. A new bridge is being installed at the entrance. It’ll be poured the following week, he said, so it’s expected to be open again by the middle of April, but is currently closed in connection with the bridge construction. The Border-to-Border Trail segment in that area is also due to be paved by the end of April or the beginning of May, Taylor said.

Comm/Comm: Basic Rights

During public commentary at the start of the meeting, Thomas Partridge said he was there to call attention of the public to the ongoing onslaught against civil rights of Americans, perpetrated by Republican candidates for president. There’s an attempt to deny the basic civil right to affordable transportation, housing, education, and health care, Partridge said, and the denial of those rights is being given the deceptive heading of “budget reductions.”

At the end of the meeting, Partridge called for radical improvement in support of the full range of services that make life worthwhile, including for the poorest members of the community.

Present: Mike Anglin, Sabra Briere, Sandi Smith, Tony Derezinski, Stephen Kunselman, Marcia Higgins, John Hieftje, Christopher Taylor

Absent: Jane Lumm, Carsten Hohnke, Margie Teall

Next council meeting: April 2, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [confirm date]

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The part of the city code called out for continued enforcement in the resolution, Section 5:50.1(3), specifies the zones in the city where medical marijuana businesses may be located. From the code: “Medical marijuana dispensaries shall only be located in a district classified pursuant to this chapter as D, C, or M, or in PUD districts where retail is permitted in the supplemental regulations. Medical marijuana cultivation facilities shall only be located in a district classified pursuant to this chapter as C, M, RE, or ORL.” [.pdf of Section 5:50.1(3)]

The attempted resolution reflects an ongoing tension between the city’s medical marijuana licensing board and the city attorney’s office. The resolution had been postponed from the council’s March 5 meeting – due to the late hour when the council arrived at that point on the agenda. The council’s postponement on March 19 was based on the fact that some councilmembers who had wanted to vote were absent, according to Sabra Briere (Ward 1). Absent from the meeting were Carsten Hohnke (Ward 5), Margie Teall (Ward 4) and Jane Lumm (Ward 2).

That tension between the medical marijuana licensing board and the city attorney’s office is reflected in a statement sent by members of the board to city councilmembers on March 2, which reads in part: “[The city attorney's office] has been aggressively trying to shut [dispensaries] down while we actively try to license them.” The statement goes on to point out that a representative from the city attorney’s office had been present at all of the board’s meetings and that the board’s recommendations had been reported to the city council. But after that, the city attorney’s office had sent out new letters to all dispensaries requesting them to provide information about how their business operates. [.pdf of entire statement from Ann Arbor's medical marijuana licensing board to the Ann Arbor city council]

The attempted resolution stemmed from a meeting of the city’s medical marijuana licensing board on Feb. 28 that was convened in response to concerns by several dispensary owners, who have received letters, dated Feb. 24, from the city attorney’s office. The letters make specific inquiries into several aspects of the business model of dispensaries – in order to assess whether they are in compliance with Michigan’s Medical Marijuana Act. Compliance with the MMMA is a requirement for issuance of a medical marijuana license, and recipients of the letters have license applications pending with the city. Although the legal position of the city attorney appears to be that it’s possible for a dispensary to operate in compliance with the MMMA, no explication of what that model would entail has been set forth.

Among the questions being posed to all dispensaries in the letters is the following: “Does any person or entity deliver marijuana to [Dispensary Name]? If so, does [Dispensary Name] ever pay, donate, or in any way give money to the person or entity who delivers the marijuana or to anyone else? If so, to whom is the money paid, donated, or given and how much?” [.pdf of set of letters]

The city council resolution was sponsored on the agenda by Briere, who is the city council’s representative to the medical marijuana licensing board. After its Jan. 31, 2012 meeting, the board submitted a required report to the council with recommendations on the issuance of the first dispensary licenses and revisions to the city’s medical marijuana ordinance. The report recommends to the council that 10 dispensaries be issued licenses.

The city council enacted zoning and licensing regulations for medical marijuana businesses at its June 20, 2011 meeting.

The resolution that was postponed for a second time would have requested that the council decide on recommendations for amendments to the city’s medical marijuana ordinance before June 18, 2012.

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]