Council to Start Early for Closed Session

The regularly-scheduled city council meeting for Sept. 8, 2008 will start at 6 p.m. instead of 7 p.m. so that council can go into closed session. A phone call to the Larcom Building confirmed that the meeting would begin with a motion to go into closed session, that council would conduct its closed session, and then at 7 p.m. the meeting would start as it usually does, complete with its public commentary segment.

Closed sessions are allowed under Michigan’s Open Meetings Act for the following reasons:

1. to consider the purchase or lease of real property;
2. to consult with its attorney about trial or settlement strategy in pending litigation, but only when an open meeting would have detrimental financial effect on the public body’s position;
3. to review the contents of an application for employment or appointment to a public office when the candidate request the application to remain confidential. However, all interviews by a public body for employment or appointment to a public office have to be conducted in an open meeting; and
4. to consider material exempt from discussion or disclosure by state or federal statute.

Explanation for the closed session could be found in a letter dated Aug. 29, 2008, from Robert Carson of Carson Fischer, legal counsel for Hughes Properties, to city attorney, Stephen Postema. [.pdf of complete letter text] Carson requested that his client’s project be voted on at the next occurring city council meeting (in this case, Sept. 8) and not be delayed until it is next on the agenda, Oct. 6.

Section 5:122.(3) Site plans for City Council approval – provides in relevant part: “The City Council shall approve or reject the site plan within 30 days of the recommendation by the Planning Commission.” City Council did not address the site plan within 30 days of the June 3, 2008 Planning Commission recommendation. Therefore, the city has violated and continues to violate its own mandate to the essential detriment of Applicant.

Summarizing the position of the developer:

City Council has wholly failed to act upon the site plan in a timely and lawful manner. Further, pursuant to both applicable Michigan statues and the ordinance of the City, not only must City Council approve or reject the site plan within 30 days of the recommendation of the Planning Commission, it is required to approve the site plan since this site plan complies with all requirements.

The requirements in this case are specified as follows in the Ann Arbor city code:

5.122.(6) Standards for site plan approval. A site plan shall be approved by the appropriate body after it determines that:
(a) The contemplated development would comply with all applicable state, local and federal law, ordinances, standards and regulations; and
(b) The development would limit the disturbance of natural features to the minimum necessary to allow a reasonable use of the land, applying criteria for reviewing a natural features statement of impact set forth in this Chapter; and
(c) The development would not cause a public or private nuisance and would not have a detrimental effect on the public health, safety or welfare.

Based on public commentary at council meetings, public hearings, and planning commission meetings to date, it does not seem to be controversial that the proposed 25-story building satisfies (a) and (b). Claims that the project would not satisfy (c) have centered on traffic impact and wind-tunnel effects. City staff has concluded that traffic and wind impact do not violate (c).

The Chronicle has not yet successfully tapped the requisite legal expertise to assess whether (c) offers the kind of legal basis that the city would need to defend itself against a possible lawsuit. That’s why comments are open.