From the public notices published in the Oct. 1, 2009 edition of the Washtenaw Legal News: "Ann Arbor City Notice, Notice of Public Hearing on Proposed A2D2 Downtown Design Guidelines."

Ann Arbor City Council Sunday night caucus (Oct. 4, 2009): At its Sunday night meeting attended by only three councilmembers – Mayor John Hieftje, Sabra Briere (Ward 1) and Mike Anglin (Ward 5) – downtown zoning was again center stage.

A dozen or so residents attended the caucus and many of them addressed the changes that can be traced in the draft documents for A2D2 downtown building design guidelines from Oct. 15, 2007 to April 30, 2008, to Aug. 28, 2009, and most recently in the Sept. 30, 2009 version of the document.

The council will open a public hearing on the proposed guidelines on Oct. 5, but is not scheduled to vote on the matter until at least Oct. 19. At caucus, Hieftje said that the public hearing might be left open until Oct. 19 and that it was possible that no vote would be taken then – there was “no rush,” he said.

The complaint of many of those who addressed caucus was this: A commitment to the design guidelines as a compulsory part of project review had been gradually written out of the various drafts.

The challenge in following the changes to the draft was made more difficult, some speakers contended, by the fact that the city had altered its strategy for publicizing public hearings. That’s a strategic necessity driven by the fact that the closing of The Ann Arbor News leaves The Washtenaw Legal News as the only local “newspaper of general circulation.” Other issues that came up at caucus included an item on Monday’s agenda to spend $122,480 to have the consulting firm Clarion Associates to review the city’s zoning code – as well as master plans, and other documents related to development – for inconsistencies. Clarion has offices in Colorado, Florida, Illinois, North Carolina, Ohio, and Pennsylvania.

Although an ordinance addressing toy guns returns to Monday’s agenda, it will likely be put off again – this time to be tabled instead of postponed to a date certain. Caucus also previewed an extension of a moratorium on the installation of parking meters in residential neighborhoods.

Design Guidelines Draft: A Work in Progress

The latest draft of the design guidelines document, which is a part of the A2D2 rezoning process, was released by the city on Sept. 30. The specific guidelines themselves seem to be materially the same as those in the Aug. 28 draft, which underpinned the city council’s mid-September joint work session with planning commission and the Downtown Development Authority board. [See previous Chronicle coverage: "Downtown Design Guides: Must vs. Should."] However, the role that those guidelines play in the project review process has changed in the Sept. 30 version as compared to the Aug. 28 draft. To get a clearer picture of how the guidelines’ role has changed since the earliest draft, we’ve excerpted the language in relevant part, dating back two years.

[Oct. 17, 2007 Draft] The Design Review System …
Design Advisory Resource Panel A special panel will be established to provide advice to staff in making design review decisions. The majority of this group shall be design professionals, but it should also include some downtown property owners and community advocates. The panel will meet on an as-needed basis. Since their actions will only be advisory, no formal hearing will be required. All meetings will be open to the public and advance notice will be given in order to give the public an opportunity to attend their meetings. The panel will provide their advice to staff on the interpretation of the design guidelines as needed/requested …

Six months later, the “system” had become a “process.” But the notion of a panel or a board of some kind was retained.

[April 30, 2008 Draft] Design Review Process …
Design Advisory Panel. A special design advisory panel will be established as a resource for the decision-making process. Their role will be advisory only. Staff may draw upon the expertise of this panel for interpreting the design guidelines. Applicants may also request the assistance of the panel as part of the review.

More than a year after that, the “process” had become a discussion of “application” of the guidelines. No notion of a review panel is included in the Aug. 28 draft. But there is a specific requirement that a submitted project include a statement by  developers explaining how their projects meet the goals of the guidelines :

[Aug. 28, 2009 Draft] Application of the Design Guidelines …
Compliance with the design guidelines is voluntary but applications for site plan approval in the D1 and D2 zoning districts must include a Design Guidelines Statement describing how the proposed project relates to the priority guidelines in Chapter 2: General Design Guidelines and any priority guidelines for the relevant character district in Chapter 3: Design Guidelines for Character Districts. Refer to the Land Development regulations within Chapter 57 of the City Code for specific requirements.

Those regulations in Chapter 57 would need to be enacted – there’s nothing currently in the code requiring such a statement.

Considered as a whole document, the  latest version of the guidelines includes some superficial differences – mainly the symbol used to designate high-priority guidelines. It’s been changed from the “Texaco Star” symbol to a tree – which to The Chronicle’s eye appears to be the same tree that appears in the city of Ann Arbor’s seal.

By way of material differences between the Aug. 28 and the Sept. 30 drafts, there is no reference to specific requirements in Chapter 57 of a statement that’s required from a developer:

[Sept. 30, 2009 Draft] Application of the Design Guidelines …
The design guidelines in this document apply to development on all properties within the Downtown Core (D1) and Downtown Interface (D2) zoning districts. For properties that are in a designated historic district, refer to the separate Design Guidelines for Historic Districts. When considering a project downtown, property owners, developers and architects are encouraged to refer to the downtown design guidelines. Compliance with the design guidelines is voluntary.

There is also a checklist included in the appendix to the Sept. 30 draft, but there is no role in the project review process specified for it. So in terms of the scale of voluntary-to-compulsory described at the council’s joint work session by the consultant on the project, the changes in the draft documents correspond to a change from (3) to (1).

1. Completely voluntary: Design guidelines exist as a resource for developers. Developers are free to look at the guidelines or not. They’re free to incorporate the guidelines into their downtown projects or not.
2. Obligatory process, voluntary compliance – a checklist: As a part of the site plan approval process, developers must submit a statement evaluating their project against a checklist of design guidelines. The statement would explain how a project does and does not meet the intent of the design guidelines. Regardless of how the project stacks up based on the developer’s self-evaluation or planning staff’s evaluation and feedback, the developer would not be legally compelled to change the project based on the design guidelines alone.
3. Obligatory process, voluntary compliance – a design review board/panel: As part of the site plan approval process, a design review panel/board reviews the proposal independently of city planning staff with respect to meeting the intent of relevant design guidelines. The panel/board would issue a written opinion of their evaluation, but the developer would not be legally compelled to change the project based on that opinion.
4. Obligatory process, obligatory compliance: As part of the site plan approval process, a design review panel/board reviews the proposal independently of city planning staff with respect to meeting the intent of relevant design guidelines. The panel/board would issue a written opinion of their evaluation and that opinion would be legally binding. Otherwise put, a project could be denied based on a design review board’s assessment.

As previously reported, the direction to the consultant, Winter & Company, to craft the document in a way that presented the guidelines as voluntary came from the A2D2 oversight committee this past summer. The three-member committee consists of Marcia Higgins (city council, Ward 4), Evan Pratt (planning commission), and Roger Hewitt (DDA board).

Residents at caucus pointed out that the Sept. 30 draft had come just a day before the public notice had been published – and the publication of that notice had been in a newspaper some of them didn’t know existed: The Washtnaw Legal News.

Publication of Public Notices

The closing of The Ann Arbor News has had an impact on the city of Ann Arbor’s ability to cost-effectively meet its legal obligations to publish notices, as well as to adequately disseminate the information. The topic has come up recently with great frequency, most recently at the last regular meeting of the city council.

From The Chronicle’s Sept. 21 city council meeting report:

During public commentary on the need to adopt a sense of “diminished astonishment” when trying to follow public events, Jim Mogensen mentioned the fact that the public hearing on City Place had been published in the Detroit Free Press, but not in AnnArbor.com’s print edition.

It’s worth noting that the state statute requires that a newspaper be in publication for a year before it meets the legal requirement for publication of legal notices – so AnnArbor.com, which started publishing in July 2009, doesn’t qualify.

During a break in council’s meeting, city clerk Jackie Beaudry clarified for The Chronicle that from the point of view of cost, the Washtenaw Legal News is the city’s preferred choice, but that sometimes the timing of the once-a-week Legal News publication schedule forces the city to resort to the more expensive Detroit Free Press. Compared to the old Ann Arbor News, Beaudry said, the Free Press notices cost 10 times as much.

It was the Washtenaw Legal News (Oct. 1, 2009 edition) that the city used to publicize the Oct. 5 public hearing on the design guidelines. The Legal News is a weekly publication that comes out on Thursdays. Subscribers, who currently pay $5 per year, receive their copy of the paper in the mail.

One resident at caucus described her frustration visiting the Legal News website, discovering that she needed a subscription to see the content, then having difficulty finding the notices after she subscribed.

Mayor Hieftje acknowledged the challenge now faced by the city in meeting its legal obligations for publication, and suggested that the charter amendments to appear on November’s ballot would address part of that challenge. However, as Sabra Briere (Ward 1) pointed out, the amendments to the charter do not address printing. [The proposed amendments would allow the city to satisfy its legal obligations for publication of ordinances by posting them on its own website.]

One idea floated by a resident at caucus was to recruit the University of Michigan Record and/or the Michigan Daily, which both have printed editions, in the effort to publicize public hearings and the like. The idea involved expanding the distribution area beyond campus.

In the course of the discussion among councilmembers and residents, an important distinction crystallized: Legal obligation versus effective dissemination. Part of the challenge in using the Legal News for effective dissemination of information is related to its weekly publication schedule. City council rules allow changes to its agenda up until the last minute, with recent revisions to those rules only requiring members to use “best efforts” to make such changes by the Friday before a Monday meeting.

Asked at caucus why the council had not enforced more discipline on itself with respect to these rules, Briere said that in her service on the rules committee, for late agenda changes she’d weighed in for language like “emergency” or “rare occurence,” but that she’d been talked out of it. There were, she said, occasions on which the council needed to be able to respond quickly to a situation. The response from the resident who raised the question: The council always has the option of suspending the rules. Briere summed up by saying, “It’s difficult to change people’s mind when life has been convenient.”

For reference, here’s how the State of Michigan defines “newspaper,” which is the source of the city of Ann Arbor’s challenge in meeting its legal obligations as well as serving the public interest.

Michigan Compiled Laws 691.1051: Newspaper; definition; publication of notices.

Sec. 1. The term “newspaper” as used in any statute of this state, except the revised judicature act of 1961 relative to the publication of a notice of any kind, shall be construed to refer only to a newspaper published in the English language for the dissemination of local or transmitted news and intelligence of a general character or for the dissemination of legal news, which

(a) has a bona fide list of paying subscribers or has been published at not less than weekly intervals in the same community without interruption for at least 2 years, and

(b) has been published and of general circulation at not less than weekly intervals without interruption for at least 1 year in the county, township, city, village or district where the notice is required to be published. A newspaper shall not lose eligibility for interruption of continuous publication because of acts of God, labor disputes or because of military service of the publisher for a period of not to exceed 2 years and provided publication is resumed within 6 months following the termination of such military service,

(c) annually averages at least 25% news and editorial content per issue. The term “news and editorial content” for the purpose of this section means any printed matter other than advertising.

If no newspaper so qualifies in the county where the court is situated, the term “newspaper” shall include any newspaper in an adjoining county which by this act is qualified to publish notice of actions commenced therein.

Zoning Code Overhaul

Residents asked the caucusing councilmembers to provide some clarity on a resolution to approve $122,480 for a contract with the consulting firm Clarion Associates to review the city’s zoning code. Sabra Briere (Ward 1) explained that there was money in the city attorney’s budget to reorganize the city’s zoning ordinances to make them more compatible with each other.

After caucus, Briere cited for The Chronicle as an example of problems with compatibility various wetlands regulations, which had arisen during the contentious approval process for the 42 North development. [Briere voted against the project when it was brought forward as a matter of right proposal, based in part on the interpretation of wetlands rules.]

Briere clarified that the work to be done by Clarion is not the A2D2 process and does not involve the substance of the code. She said that for her, given the cost, the question about the need to resolve conflicting language was this: Is this the year to do it?

Here’s the rationale for the legal work to be done by Clarion, taken from the administrative memo accompanying the resolution:

The current zoning and development ordinances have many issues that make it difficult to use. The issues can be summarized as: 1) the overall organization structure is cumbersome and it can be challenging to find code sections; 2) related standards are often contained in different code sections and can be difficult to navigate; 3) a lack of clarity in code language makes the code difficult to interpret; 4) there are some ordinance gaps and provisions that are out-of-date or may have minor inconsistencies with state law, and 5) the use of terms is inconsistent.

The professional services agreement with Clarion Associates is for consulting services to reorganize eleven different chapters of the Ann Arbor City Code and to address the identified issues to produce an integrated, internally consistent and user-friendly version that is: 1) comprehensive – to eliminate cross referencing between code sections to determine standards governing development and redevelopment; 2) clear and internally consistent; 3) usable, both internally by staff and externally by the public; 4) enforceable and legally defensible based on objective standards and Michigan enabling laws; and 5) adaptable and structured to make it easy to amend or to add/ delete provisions in the future.

Material changes to the code will not be addressed in this project. This effort will focus on the development of a solid framework so that future code changes – both technical and substantive – can be more easily incorporated. Material code changes will be undertaken as a rewrite of zoning standards following the development of the City of Ann Arbor Master Plan: Land Use Element, Phase II: Update Land Use Recommendations, a three-year process scheduled to begin in 2010. Material code changes that may surface as part of this effort will be collected in a “Suggestions for Future Changes” document for use as a part of the future zoning rewrite effort.

Toy Guns

At the council’s Sept. 8 meeting, a second reading was heard of an ordinance that would allow enforcement of prohibitions against so-called look-alike weapons. Sabra Briere (Ward 1) had raised questions about the adequacy of the language in the ordinance. [See Chronicle coverage: "City Council Begins Transition."] For that meeting, the city attorney’s office had asked that the resolution be tabled so that the language could be rewritten.

The council voted to postpone the resolution – until Oct. 5. As Briere clarified at caucus, the attorney’s office had actually wanted a tabling of the resolution (with no date fixed). No changes have been made to the language in the interim. As a consequence, explained Briere,  the request from the attorney’s office is again to table the resolution so that adequate time can be put into reworking the language.

Based on her deliberations at the Sept. 8 meeting, Marcia Higgins (Ward 2) might float the idea of simply voting down the ordinance, instead of tabling it, and letting it come back clean, thus eliminating the need to track changes from one version to the next.

Sandi Smith (Ward 1) indicated early in the meeting that action on the Near North development would be postponed. A speaker during public commentary noted that a controversial resolution affecting the municipal airport had been yanked from the meeting’s agenda. And Mike Anglin (Ward 5) announced a delay in his intention to bring a resolution that would make publicly available numerous city council emails dating to the early 2000s. Council did not contemplate any resolutions in connection with the Argo Dam. [The Chronicle will report separately on the work session held immediately prior to the council meeting, which focused on Argo Dam.]

But as it turned out, on Tuesday night a lot happened: Ann Arbor’s city council began a transition – to what will perhaps be a different way of doing business and to a new set of leaders.

That transition was reflected overtly when the announcement came at the end of the meeting that Margie Teall (Ward 4) and Leigh Greden (Ward 3) were stepping down from the Budget and Labor Committee to be replaced by Mike Anglin (Ward 5) and Sabra Briere Ward (Ward 1).

But it was also reflected in the deliberative dynamic when a resolution on toy guns was considered, and ultimately postponed. Marcia Higgins (Ward 4) and Stephen Rapundalo (Ward 2) found themselves playing “outsiders” to Sabra Briere’s “insider” position with the city attorney’s office – a complete role reversal.

Later, Briere relayed a key message on the toy guns ordinance to her colleagues by email. That action became an example when council discussed new rules regarding electronic communication. The rules take a “thou shalt not” approach to the kinds of emails that councilmembers are supposed to exchange during council meetings.

In other business, council revised the ballot language of a charter amendment that it had approved at its previous meeting. The impact of that revision is not clear in light of county clerk deadlines, which have already passed.

Transitioning Council Leadership

At the end of the night, Mayor John Hieftje announced that Leigh Greden would be stepping down from the Budget and Labor Committee. Hieftje said he thought that Greden was looking forward to his departure from council. [Greden lost the August Democratic primary election in Ward 3 to Stephen Kunselman]. Hieftje followed that announcement with the news that Margie Teall (Ward 4) would also be stepping down from Budget and Labor. She found herself very well occupied with her other committee work, Hieftje said. Teall currently serves on the Administration Committee, the Community Events Funds Committee, and as one of two council representatives to the Environmental Commission. She also serves on the recently formed Senior Center Task Force.

Replacing Greden and Teall on Budget and Labor will be Sabra Briere (Ward 1) and Mike Anglin (Ward 5).

Their first meeting on the Budget and Labor committee will be on Sept. 14 starting at 5:30 p.m. at the Ann Arbor Transportation Authority board room [confirm time and date]. On the same evening, the city council has a joint working session with the Downtown Development Authority and the planning commission, which will be held at the Community Television Network studios starting at 7 p.m. City administrator Roger Fraser explained that the AATA, which is located directly across South Industrial Avenue from CTN, had offered the location for Budget and Labor. They’d need to go into closed session at some point, and the CTN studio was not suitable for that, Fraser explained.

Toy Guns

At its Aug. 6 meeting, the council had approved on first reading a revision to the city’s ordinances that would make it possible to take enforcement action on people who are carrying realistic look-alike toy guns. At that meeting there had been scant discussion from councilmembers, except a brief indication from Sabra Briere (Ward 1) that she had several questions she wished to get clarified before the revision came before council for its second reading.

Analysis

The ordinance change came at the request of the Ann Arbor Police Department. What was the rationale for the ordinance change? From the memo accompanying the ordinance change:

The current provisions of Chapter 115 of the Ann Arbor City Code covering weapons and explosives do not allow for any enforcement action on subjects carrying realistic, look-alike toy handguns unless some other crime has been committed. On several occasions, subjects have been in possession of these types of toy handguns in public, sometimes concealed. Because the subjects were not in violation of any law or ordinance, there was no crime or violation with which to charge them.

Because these look-alike weapons pose a real threat to the public, law enforcement, and those in possession on many levels, Ann Arbor Police Services believes our City Code needs to address this issue and ban the possession of such items in public places and limit the discharge of them.

The ordinance change intends to accomplish its goal in two ways. The first is to make precise the definition of “weapon.”

A suitable definition of “weapon,” coupled with the general prohibition on possession of weapons in any public place (and suitably defined exceptions) would allow AAPD to take enforcement actions on people carrying look-alike toy handguns.

Old language: (7) Weapon means any air pistol, air rifle, slingshot, crossbow, bow, firebomb, bomb, nun-chuk, or throwing star, but shall not include antique guns not in operating condition.

New language: (7) Weapon means any air pistol, air gun, air rifle, BB gun, any type of gun that is discharged by air, gas, or a spring, slingshot, crossbow, bow, firebomb, bomb, nun-chuk, or throwing star, but shall not include antique guns not in operating condition.

The revised definition of “weapon,” however, does not include a notion of a “look-alike gun.” So this part of the ordinance revision does not appear to accomplish its stated goal.

The second way the ordinance change attempts to accomplish its goal is to include look-alike toy guns – and a definition of what they are – in a section on how weapons are allowed to be discharged.

9:263. Discharge of weapons or firearms.

No person shall discharge any weapon or firearm within the city, with the following exceptions:

• in connection with a regularly scheduled educational, recreational, or training program under adequate supervision;
• in connection with the performance of lawful duties of law enforcement;
• in connection with the protection of person or property when confronted with deadly force;
• in connection with the discharge on private property of toy, look-alike, and imitation weapons and firearms, which have the appearance, shape, and/or configuration of a firearm. [emphasis added] This exception does not apply if the toy, look-alike, or imitation weapon or firearm is discharged toward an area within the public right-of-way or the projectile discharged enters into an area within the public right-of-way. This exception also does not apply to BB guns.

It’s not obvious what “configuration” adds to the definition of a look-alike firearm, nor is it clear why it merits the “and/or” conjunction. It’s possible that “appearance” and “shape” are meant to cover two-dimensions, but that “configuration” means that in order to qualify, the object needs to be more than a cardboard cutout.

Further, there’s an unfortunate syntactic consequence of embedding this definition of look-alike guns in a section about the discharge of real guns. This embedding appears to have the unintended consequence of allowing the discharge of a real firearm – if a toy firearm is discharged in connection with the discharge of that real firearm.

Public Commentary on Toy Guns

Two members of the public spoke during the hearing on toy guns.

Lou Glorie: Glorie described the ordinance as “over the top,” saying that the problems with “play weapons” did not rise to the level of criminal activity. She reminded councilmembers that it’s legal to carry a gun in Michigan.

Karen Sidney: Sidney wondered, “Who thinks this stuff up?” She expressed her concern that the ordinance could be used to target specific ethnic groups, and give rise to the firearm equivalent of “driving while black.” She suggested that the Ann Arbor police force would do better to focus on specific crime problems in Ann Arbor like drug dealing in Courthouse Square, break-ins on the west side, theft from downtown offices, and thefts from cars in parking structures.

Council Deliberations on Toy Guns

Right out the gate, Sabra Briere (Ward 1) moved to table the resolution, based on a request from the city attorney’s office. As she’d indicated at the council’s Aug. 6 meeting, she’d had concerns about the ordinance, and had followed up with questions to the city attorney’s office. She had received a reply on Thursday, Sept. 3, that included the request to table it, because the city attorney’s office was not ready to move it forward at this time.

Marcia Higgins (Ward 4) appeared annoyed to not have been in the communication loop, saying, “I wasn’t privy to those conversations.” She asked to what date the resolution would be postponed.

Stephen Rapundalo (Ward 2) seemed to echo Higgins’ annoyance, saying that the postponement was “news to [him].” He asked Abigail Elias, who was representing the city attorney’s office at the council table, to share the content of the communication with the rest of the city council.

Elias indicated that it was “not a change of heart” by either the city attorney’s office or the police department. Rather, it was a matter of cleaning up the language.

Rapundalo asked that in the future, such requests from the city attorney’s office [to postpone a resolution] be made of all councilmembers.

Higgins weighed in again, pointing out that this was the second reading of the proposed ordinance and that this was the second time recently when changes needed to be made at a second reading – she was prepared to vote and didn’t favor postponing.

Asked by Carsten Hohnke (Ward 5) what the concerns were in the language, and what had triggered a review, Elias replied that there had been questions about references to “toy guns” and specific kinds of toy guns – it was a matter of cleaning up the language.

Hohnke pressed Elias: “What prompted the review?” Elias: “Some questions were raised.”

For her part, Briere apologized for the fact that the communication had not been sent earlier. She said she’d had several communications with the city attorney’s office after the first reading and had not received a reply until the previous Thursday.

Higgins attempted to speak again, but Mayor John Hieftje did not allow her to take a third speaking turn, which would have required a suspension of council rules.

Sandi Smith (Ward 1) weighed in for postponement, saying that it was not a pressing issue to resolve.

Higgins’ Ward 4 colleague, Margie Teall, then moved to suspend the council rules on speaking turns to allow Higgins another turn. That motion passed unanimously.

Higgins said that instead of postponing the resolution, they should vote it down. Then, when it came back, it would be a fresh start, and there would not be a need to track what had changed and what had not.

Hieftje expressed his support for postponement.

Outcome: The motion to postpone consideration of the toy guns ordinance until the first meeting in October passed with dissent from Rapundalo and Higgins.

Mail

Council considered two resolution about mail – one related to the potential closing of the post office in the South University area, the other related to new council rules regarding email during council meetings.

South University Post Office

The council considered a resolution co-sponsored by Sabra Briere (Ward 1) and Christopher Taylor (Ward 3) calling on the United States Postal Service to take the South University location off its list of locations targeted for closure. Taylor and Briere both expressed the view that closing the post office would place a heavy burden on those with no motorized transport to get to a different location.

Briere said that they should be encouraging people to get on their feet and walk to the post office with small packages, not drive to the post office. The measure, she said, had support from Senators Carl Levin and Debbie Stabenow, and as well as from Congressman John Dingell.

Outcome: The resolution opposing the closure of the South University post office was unanimously approved.

Council Rules on Electronic Mail

The council began its discussion of revisions to its own rules by suspending its rule on speaking turns. Marcia Higgins (Ward 4) read aloud Rule 8, which now addresses, among other things, electronic communications during meetings:

Electronic communication during Council meetings shall pertain only to City matters. During Council meetings, members shall not send electronic communication to persons other than City Staff; provided however, that members may send draft motions, resolutions, and amendments to all members. Members shall not respond to member-distributed draft language via electronic communication. All draft language sent by electronic communication during Council meetings shall be read into the record prior to discussion by Council.

Briere noted that even with the best of intentions, it’s difficult to adhere to the rules – citing her own email she’d sent to fellow councilmembers earlier, which relayed the communication she’d received from the city attorney’s office. [Under the new rules, such communication would presumably be prohibited, because it was not a motion, resolution, or amendment.] Briere said that there needed to be a middle ground between the need to share information in general versus during a council meeting.

Higgins suggested that the struggle with electronic communication was generation-based (after prompting a round of laughs when she first mis-spoke, saying “gender-based”). She said that you can’t have a rule for every instance.

Higgins went on to describe how the practice of being able to forward email automatically from an a2gov.org account to some other accounts should perhaps be revisited in light of the fact that council email accounts were now accessible via a web-based portal – they can be accessed anywhere.

For her part, Sandi Smith (Ward 1) said that she routinely forwarded email from her a2gov.org account to a different one to facilitate printing – was that what Higgins meant? Higgins clarified that she was only talking about auto-forwarding. Smith said she didn’t see how that related to the conduct issue addressed by the rule.

Christopher Taylor (Ward 3) seemed intrigued that auto-forwarding was even an option, and asked Higgins if she was suggesting an action item. She was not. Taylor then turned the council’s attention to the rules on how the council’s agenda was pushed out to the public, as well as the construction of the agenda. The idea was to eliminate the notion of a “newspaper deadline,” he said.

3B – Review of the Draft Agenda
The City Administrator shall submit the draft agenda and supporting materials to the members of the Council Administration Committee for review and comment 10 days prior to the next Council meeting. Such review and comment shall be made no later than 7 days prior to the next Council meeting. Once reviewed by the Council Administration Committee, no matter from staff shall be placed on the agenda. Council members may add items to the agenda at any time, but will use best efforts to do so prior to the Friday before the next Council meeting.

3F – Publication of Agenda
After review of the agenda under 3B, the agenda for all meetings of Council, including Work Sessions, shall be published by prominent link on the home page of the City’s Website, distributed electronically to each branch of the Ann Arbor District Libraries, and posted in the lobby of City Hall. The Clerk shall use best efforts to promptly disseminate amended agendas by the foregoing distribution channels.

If a councilmember places an item on the agenda after the Friday before the next council meeting, Taylor explained, the idea behind the language of “best efforts” was that the councilmember would “make some species of explanation” as to why it could not be added sooner.

Briere went to considerable lengths to make clear what the proposed rules changes were not about, because of what she said were expectations on the part of the public about what would come out of the rules changes. Rules did not address ethics, for example. Also, the rules did not address how council committees were selected, she stressed. “It’s about council meetings, not about council,” she said.

Higgins pointed out another rule that would help make the agenda understandable:

RULE 10 – Resolutions and Motions To Be Made In Writing
Every resolution and ordinance shall be in writing. Resolution titles shall, unless impractical or required by law, be twenty (20) words or less and describe in plain language the subject matter thereof.

Mayor John Hieftje suggested that an additional slot for communications from council be added immediately following public hearings. Councilmembers agreed to add the slot.

Outcome: The council adopted its revised set of rules on a unanimous vote.

Charter Amendment on Publication of Ordinances

At its last meeting, the council had passed a resolution placing on the November ballot a charter amendment that would change publication requirements for the city’s ordinances. Since that meeting, the state Attorney General’s office had made suggestions for changes in the ballot language that the council had approved, and Tony Derezinski (Ward 2) brought forward the revised versions for council approval.

The Chronicle published a column analyzing the charter amendment in detail, which gives the city council discretion to determine what is an appropriate form of publication for the city’s ordinances: “A Charter Change on Publishing.”

In that column we called attention to the fact that the phrasing “permitted by law” was inaccurately included in the ballot language for one of the amendments, likely due to a copy/paste error. Last week The Chronicle phoned the state Attorney General’s Office to offer our view that because of this error, the ballot language did not meet the standard for ballot language as set forth in the Home Rule City Act:

The purpose of the proposed charter amendment or question shall be designated on the ballot in not more than 100 words, exclusive of caption, that shall consist of a true and impartial statement of the purpose of the amendment or question in language that does not create prejudice for or against the amendment or question [emphasis added].

The AG likely would have make the recommendation for a change on its own. Here’s the contrast between the previously approved version and the version approved at Tuesday’s council meeting:

Old Version: Shall Sections 7.4(a) (1) and (2) of the Ann Arbor City Charter be amended to permit the current requirement of newspaper publication of City ordinances to be satisfied also by posting to the City website, any media permitted by law or determined appropriate to inform the general public by City Council? [emphasis added]

New Version: Shall Sections 7.4(a) (1) and (2) of the Ann Arbor City Charter be amended to permit the current requirement of newspaper publication of City ordinances to be satisfied also by posting to the City website, or by any media determined appropriate to inform the general public by City Council?

In council deliberations, Sandi Smith (Ward 1) asked why the Attorney General’s office had made a suggestion for revision, given that she’d been led to believe that it had already been approved by the Attorney General’s office. [City Attorney Stephen Postema had reported at the council's last meeting that the AG's office had vetted the proposal.]

Abigail Elias, speaking for the city attorney’s office, described the prior process as an “informal review” and that the suggestion now was to prevent an outcome on the formal review that would be either negative or else an opinion with comments.

Outcome: The council unanimously approved the wording changes to the ballot language.

What’s next? That’s not clear. According to deputy county clerk Matt Yankee, who handles elections for the Washtenaw County clerk’s office, the Aug. 25 deadline for submission of ballot language is set by the State of Michigan. In a phone conversation, he told The Chronicle that his office is already in the process of programming the ballots for November.

Chronicle conclusion: It’s not clear if the city of Ann Arbor can get the revised ballot language swapped out.

Near North

In her communications from council towards the beginning of the meeting, Sandi Smith (Ward 1) advised her colleagues that the Near North planned unit development had experienced a “meeting of the minds” and that action on the project was unlikely that evening. Still, she said, it would be important for councilmembers to ask any questions they had of the developer that evening. Mayor John Hieftje echoed the importance of getting questions answered that evening. The public hearing, he said, would be left open for the next meeting.

Several people spoke during the public hearing on Near North, which is an affordable housing project of around 40 units proposed for North Main Street. The nonprofit Avalon Housing and the developer Three Oaks are working on the project together.

Karen Sidney: In an apparent allusion to Lily Au’s speaking turn [see below], and a council chambers filled with residents and supporters of Camp Take Notice, Sidney noted that there’s a homeless epidemic. She expressed her hope that Avalon Housing could work out an acceptable solution to their differences with neighbors about the proposed development. However, she expressed concern about the $270,000 per unit it was going to cost to build the affordable units – that’s not cost effective, she said. She noted that the project was being financed with tax credits – that is, public money – and that public monies should not be used to cover the losses of a bad investment made by the developer [in purchasing the individual lots where the project is situated, at the height of the real estate market]. She suggested focusing on finding money to help with operating costs that Avalon needs to cover in order to finance its services. The $200,000 that the DDA allocates to bricks-and-mortar construction of affordable housing, she suggested, should be considered as possible funding for operating costs.

Tom Fitzsimmons: Fitzsimmons spoke representing the North Central Property Owners Association. He began by asking the council for a two-week postponement of the resolution before them approving the PUD rezoning and the site plan. He reported that the NCPOA had been working with the development team from Three Oaks, and that they’d made significant progress in addressing concerns about massing, height, setbacks, and the appropriate fit for retail in the space. He described the development team as having made “an honest effort,” to the point that “we no longer officially oppose this project.” But he noted that there were remaining concerns about the policy precedents that such a project might set. Tearing down eight houses to build 14 supportive housing units is poor public policy, he said. Further, the acquisition of multiple properties with the intent of building a project that was inconsistent with the master plan for the area was bad neighborhood policy.

Michael Brinkman: Brinkman said he was extremely opposed to building a giant PUD. “The end doesn’t justify the means,” he said. He accused Avalon executive director Michael Appel and the developers of using Avalon as a shield for the developer’s bad real estate investment. Alluding to a comment by Tony Derezinski (Ward 2) at a previous council meeting, Brinkman said there was not 90% agreement about the project. Instead, he said, it was about “minimizing the damage.” He characterized the description that Mayor John Hieftje had used in his communications from council to describe the importance of councilmembers getting their questions answered as a Freudian Slip – Hieftje had said that questions needed to be answered at that night’s meeting, so that council could go ahead and pass the project at its next meeting.

Jeff Jenkins: Jenkins told the council how he’d moved away from being next door to Miller Manor to where he now lives, right next to the Near North proposed project. He described how Miller Manor lacked a sense of community with the surrounding neighborhood. The extent of interactions with that housing project, he said, had been based on complaints from the project about noise caused by him. In contrast to noise issues that had been settled through interpersonal negotiation with his other neighbors, Miller Manor seemed like a “large, looming complaint that doesn’t have a face.” He liked living just outside of downtown, he said, and Near North brought downtown right to him.

Thomas Partridge: Partridge described himself as a progressive Christian Democrat who’d previously been a case worker for social services. He said he supported Near North as a “test of character” for the neighborhood and for the other residents of the city for their commitment to the principle of affordable housing.

Council Deliberations on Near North

At Stephen Rapundalo’s (Ward 2) behest, Bill Godfrey of Three Oaks gave the council a quick synopsis of what had happened since the first reading at council’s Aug. 6 meeting. Godfrey said the design team and the neighbors had worked on an alternative concept that included a work list with nine specific design changes, and that they had found common ground. Among the design changes were a reduction in massing, increased separation between the two buildings, reduction of building height to four stories or less, and a delay in the construction of the neighborhood market.

“We’re thrilled with this design,” Godfrey declared. The design changes meant that the project was left with 39 1-bedroom units with no 2-bedroom units, he said. In response to a question from Mike Anglin, Godfrey said that the $273,000 per unit in construction cost would need to be recalculated – it would be lower.

Sandi Smith (Ward 1) asked about the level of LEED certification. Damian Farrell, the project’s architect, described the building at “comfortably in gold,” based on preliminary worksheets. The outstanding questions concerned big-ticket items like geothermal systems.

Smith said the energy savings that would result from a building that was LEED certified would contribute to the ongoing affordability of the units. Michael Appel, executive director of Avalon, clarified that the reduced utility bills associated with the units would accrue to residents’ benefit. Why? Because credits awarded to cover utilities were geared to traditional utility bills – if the actual cost were less, the difference would go to the resident.

Smith also asked Appel to speak to how competitive the rents would be for the units, which had been described as around $675 per month without utilities. Appel cited the city’s needs assessment for affordable housing indicating the need for additional units in the area of the “rest of Ann Arbor,” which was neither downtown nor in student areas. The rents near downtown, he said, were higher than in other “rest of Ann Arbor” areas – part of the goal of affordable housing was to provide access to higher rent areas as well.

Christopher Taylor (Ward 3) asked Appel to address a concern about possible aggregation of affordable housing on that side of town. Appel acknowledged that such aggregation anywhere would be a concern, but that Avalon wouldn’t be doing the Near North project if they thought they would be contributing to that kind of problem. The project was 40 units, not 100 units, he said.

Outcome: Action on Near North – both the PUD and the site plan – was postponed until Sept. 21 by unanimous vote.

A2D2 Zoning

Two people spoke during the public commentary reserved time about the A2D2 rezoning proposal, which was passed on its first reading – it had been returned to first reading after having been previously passed.

John Etter: Etter introduced himself as the attorney for the Sloan Plaza Condominium Association. He spoke against the rezoning of the East Huron Street corridor as D1 (core downtown) under the A2D2 proposal, arguing that it should be zoned D2 instead. The arguments that he ticked through included: (i) D2 would function better as a transition to the historic neighborhoods abutting Huron, (ii) a D1 designation would disregard the recommendation of the Calthorpe report, (iii) a D1 designation ignored the University of Michigan activity affecting the corridor – construction of North Quad and expansion of the hospital, and (iv) a D1 designation is opposed by the Michigan Department of Transportation.

In his communications from council, Mayor John Hieftje sought to rebut Etter’s contention that MDOT opposed the rezoning of Huron Street as D1, pointing out that Etter had communicated with MDOT’s Brighton office, whereas the city of Ann Arbor had run the zoning by MDOT’s Lansing office – a higher level within MDOT.

Hugh Sonk: Sonk spoke to the character of Ann Arbor as including charming neighborhoods, and said that the design guidelines developed in connection with the A2D2 process were a good effort to reflect the unique and eclectic collection of downtown areas. However, he was disappointed that these design guidelines did not include a means of enforcement. As a Sloan Plaza resident, he said that the Huron Street area was more aligned with D2 zoning as opposed to D1. He asked for side setbacks to be included for Huron Street and suggested that there was no need to rush into adoption of the new zoning.

After brief introductory remarks in which Marcia Higgins – who served as the council’s representative on the A2D2 oversight committee – encouraged her colleagues to pass the rezoning package on its first reading, council did just that. The package had previously been approved on first reading, but was returned because of changes that were substantial enough to warrant an additional first reading. Those changes related in large part to changes in the D1-D2 boundary in the South University area.

Outcome: A2D2 was unanimously approved on first reading.

Historic Districts

The council handled two matters related to historic districts.

Historic District Study Committee

After previously approving the establishment of a historic district study committee for a two-block area south of William Street near downtown, the council appointed the committee’s membership, which Carsten Hohnke (Ward 5) read aloud: Ina Hanel-Gerdenich, Susan Wineberg, Sarah Shotwell, Patrick McCauley, Rebecca Lopez Kriss, Tom Whitaker, Kristi Gilbert.

Outcome: The council unanimously approved the membership of the committee.

Historic District Review Fees

Council considered a resolution to establish fees for historic district review. They’re considerably higher than they’d been previously, and higher than peer communities. One member of the public spoke to the issue during the public hearing.

Lou Glorie: Glorie said that the historic district review fees are “out of whack.” She further characterized the fees as hostile to historic preservation, because it was cost prohibitive to apply for permits.

Sabra Briere (Ward 1) expressed concern to Jayne Miller, director of community services for the city, that the fees were “really rather high.” Reacting to a description by Briere about what constituted a one-story addition and what did not, Christopher Taylor (Ward 3) asked Miller to clarify: Is the addition of a single story upon an existing story an addition that is “taller than a single story”? It’s a difference of $250.

10. Residential Additions: Taller than single story $500.00

11. Residential Additions: Single story $250.00

Miller said she was not sure.

Miller explained to councilmembers that part of the reason fees were higher in Ann Arbor was the higher number of historic districts – whereas communities with a lower number of requests could simply absorb the additional costs, the sheer number of requests meant that Ann Arbor could not use that as a reasonable strategy.

There was enough uncertainly that councilmembers seemed unenthusiastic about approving the higher fees without getting some additional answers.

Outcome: The historic district review fees were postponed until Sept. 21.

Industrial Development District

Council considered a resolution establishing an industrial development district for Anika and Associates, Inc., located at 3885 Research Park Drive. An industrial development district has to be established before receipt of any applications for an industrial facilities exemption certificate within the industrial development district. An industrial facilities exemption falls into the category of what’s commonly known as a tax abatement. One member of the public spoke to the issue

Karen Sidney: Sidney said that she found no justification in the supporting materials for the establishment of the district. Sidney wanted to know what the public benefit was. She suggested that if the public benefit was to be realized in the increased tax revenue from improvements undertaken to the property, then the city should contemplate offering the same kind of tax break to homeowners. If the idea was to bring jobs to the city, then Sidney asked the council to consider how many jobs tax abatements had brought through Google and Pfizer. [Google had said it would be hiring 1,000 workers by 2001, but to date has hired only around 250. Pfizer has left Ann Arbor.] Ann Arbor can’t afford to give away more taxes, she concluded.

Outcome: With no discussion, the council approved the industrial development district.

Municipal Airport

Sol Castell: Castell spoke against the adoption of a resolution that supplemented an agreement between the city of Ann Arbor and Pittsfield Township concerning jurisdictional issues around the municipal airport. [Opponents of the proposed airport runway expansion see the resolution as a way to circumvent public process.] Castell began by acknowledging the item had been stricken from the night’s agenda. He focused his remarks on safety issues – speaking from his perspective as a 747 pilot. He pointed out that extending the runway would have an impact on the risk to areas surrounding the airport, because on takeoff an airplane is heavier (maximum fuel load), slower, and close to the ground.

Andrea Van Houweling: Van Houweling spoke against the resolution supplementing the agreement between the city of Ann Arbor and Pittsfield Township regarding the municipal airport. She said that Ann Arbor residents were “the last to know” about proposed construction and changes to layout. She pointed out that the Ann Arbor city council had historically supported the notion that residents needed to be informed about proposed changes at the airport. She cited a Jan. 22, 2007, council resolution which approved and updated the then-current airport layout plan and called for city staff to bring back a separate proposal about extending the runway. The resolution also stated that notification of the proposal be sent to citizens in the surrounding area. But it was only 18 months later that citizens in the surrounding area were notified, she said. Before the supplemental agreement with Pittsfield was acted on, she suggested, there should be a public hearing on the matter.

Other Public Commentary

Thomas Partridge: Partridge introduced himself as a Washtenaw County Democrat, advocating for those in most need of government services. He called for a new effort to establish countywide regional transportation. He said that the voters must be asked to do their part.

Jeff Deboer: Deboer introduced himself as president of the Pioneer Rowing Club. He commended staff for the clarity of their presentation on Argo Dam, which was presented at a working session immediately preceding the council meeting. He said that he supported the formation of an oversight committee. He weighed in for keeping the dam in place, citing the heavy use of Argo Pond. He also said that it made no ecological sense to remove the dam, and stressed that the concrete and steel dam holding back the Argo impoundment was in good shape. [The Chronicle will provide separate coverage of the working session prior to council's regular meeting, which was devoted solely to discussion of the Argo Dam.]

Lily Au: Lily Au spoke to the issue of homelessness in Ann Arbor. She pointed out that there were hundreds of homeless people, but that the Delonis Shelter had only 50 beds, which resulted in people sleeping in chairs when there was overflow. She described the homeless as an “invisible” population that lived in the woods or under bridges, or in bathrooms. She called the council’s attention to the eviction of Camp Take Notice from their location behind Arborland and the arrest of one of the residents. She called on the community to get together and honor their Christian or other religious commitments to act on behalf of the homeless population. [Many of the supporters and residents of Camp Take Notice attended council's meeting. See "Laws of Physics: Homeless Camp Moves."]

Libby Hunter: Hunter held forth in song, which has become her preferred way to address the city council over the last few months. This time it was a medley, beginning with lyrics sung to the tune of Scarborough Fair and ending with London Bridge is Falling Down. The focus was the poor condition of roads in Ann Arbor and the Stadium Bridge in particular. Her concluding lyric was “Defeat Higgins!” [Marcia Higgins (Ward 4) is opposed in the November general election by independent candidate Hatim Elhady. The Stadium Bridge is in Ward 4.]

In his communications from council, Mayor John Hieftje sought to put into context Hunter’s contention that Ann Arbor had the second-worst roads in the state, saying that it had been a 2007 survey done by the Michigan Road Builders Association. [The Michigan Road Builders Association merged with the Associated Underground Contractors in 2005 to become the Michigan Infrastructure & Transportation Association. MITA issued a press release in October 2008 about their conclusions based on data from the 2007 Michigan Asset Management Council report.] Hieftje said that a 2008 version of the same survey showed that Ann Arbor actually had some of the better roads in the state.  The data in question can be found on the Washtenaw Area Transportation Study (WATS) website. [The 2008 data seem to be problematic in an order-of-magnitude kind of way, compared to previous years.]

Communications from Council

Carsten Hohnke (Ward 5) reported that the Greenbelt Advisory Committee had gone on a field trip to two potential sites that could be acquired through greenbelt millage funds. Both sites, he said, were connected to local food production. He mentioned this, he continued, because it reflected the modification of the overall greenbelt strategy that councilmembers had previously been briefed on.

Mike Anglin (Ward 5) gave councilmembers an update on his request that all city council emails dating back to 2000 be released to the public. He advised his colleagues that a resolution would be brought forward at the Sept. 21 council meeting addressing the issue. The delay, he said, was due to the fact that staff had needed time to compute cost estimates. The question, he said, was whether the council would do this on its own or whether the public would request the records through the Freedom of Information Act.

Sabra Briere (Ward 1) followed up Anglin’s discussion of council emails by alerting her colleagues to an exhibit on 19th century events in Washtenaw County at the Museum on Main Street (500 N. Main at Beakes Street). It was an exhibit, Briere said, that would be an appropriate title for council emails: “Murder, Mayhem, and Mischief.” [The exhibit runs through Nov. 29 – the museum is open from 12-4 p.m. Mondays, Wednesdays, Saturdays and Sundays.]

Sandi Smith (Ward 1) reminded her colleagues that it was Local Food Month and alerted them to the HomeGrown Festival to take place on Sept. 12 at the Ann Arbor Farmers Market from 5-10 p.m.

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

Next council meeting: Tuesday Monday, Sept. 21, 2009 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]