Planning Commission: Project Meets Code
At its regular meeting on April 21, Ann Arbor’s planning commission voted 6-3 to recommend to city council that it approve the City Place project proposed along Fifth Avenue. It was the fourth time that developer Alex de Parry had brought the project before the planning commission. The first proposal was a conditional rezoning, while the second two proposals were planned unit developments – which are also rezoning proposals. The proposal sent to city council on Tuesday night did not require any changes or variances from the property’s current R4C zoning – it’s thus what’s commonly referred to as a “by right” project.
No one in the room on Tuesday seemed particularly fond of the project, from neighbors to planning commissioners. Even the developer emphasized that it was not his preferred project to build. If planning commissioners were unenthused about the project, why did a majority of them vote for it? Conversely, if it’s a “by right” project, how could three commissioners vote against it, instead of following Tony Derezinski, city council’s representative to the commission, who stated flatly: “I feel constrained to follow the law.”
On Tuesday evening, commissioner Eric Mahler couched the answer to the first of these questions in terms of chickens – the kind that come home to roost. As for the second question, the legal basis of dissenting commissioners could be playfully paraphrased as this: All those chickens that come home to roost will have no place to park their cars.
The "by right" version of City Place as seen from Fifth Avenue. The space between the two separate buildings would provide 36 parking spaces for 24 dwelling units with 6 bedrooms each. The parking area would have underground detention tanks for storm water.
The PUD version of City Place as seen from Fifth Avenue. Although it appears to be three separate buildings in this drawing, the building continues through the apparent gaps. There would have been 90 units with 164 total bedrooms. The proposal included 96 underground parking spaces.
Legalities of Zoning Decisions
On Tuesday evening, one of the speakers at the public hearing invited the planning commission to reflect on a “by right” proposal from 1996, which city council had ultimately denied. It involved a plan by Burger King to construct a restaurant at Ashley and Huron streets – 206 W. Huron. Based on the council minutes of that meeting in which the speakers at the public hearing cited traffic and pedestrian hazards from the drive-through, and the summary of the petitioner’s traffic engineer’s comments, a main area of contention seemed to be the traffic flow in and out of the fast food restaurant:
Jonathan Reid, traffic engineer representing the petitioner, stated that his traffic study shows that external traffic flow, sight distances and stacking room at this location would not be a problem for the proposed use, and that the internal one-way traffic flow would not be hazardous to pedestrians crossing the driveways.
The apparent legal basis on which city council (on a voice vote) denied approval of the site plan was to disagree with Burger King’s traffic engineer and to cite point (c) below:
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. [Emphasis added]
That case contrasts with an earlier one from 1975, in which a decision not to approve a site plan seemed explicitly to be given no particular legal basis: Hesse Realty, Inc. v. City of Ann Arbor, a case reviewed in 1975 by the Court of Appeals of Michigan. The summary of that case includes a quotation from councilmember Robert Faber during deliberations on the project:
We are supposed to be acting on sound planning considerations. Quite obviously we are just running around picking at straws and seeing a piece of light here and seeing a piece of dark there. … Of course, I’m going to ask that the attorney and planning staff try to come up with something. … Finally, I will vote against this and I will move that the attorney and the planning director tell us why we voted no because obviously we don’t know yet and see what he can do with that in the court …
The court found that the city of Ann Arbor had failed to base its decision to deny the site plan on legitimate evidence, and therefore found in favor of Hesse Realty.
In the year or so since staff for The Ann Arbor Chronicle has monitored planning commission and city council deliberations, we’ve never heard anyone make remarks in any way similar to Faber’s. On the contrary, public officials have cited specific reasons for voting against a “by right” project. An example was the 42 North project at Maple and Pauline, which had first been submitted (and rejected) as a planned unit development, then approved when the plan was revised and submitted as a “by right” project that conformed with zoning. Councilmembers who in September 2008 voted against the 42 North project in its “by right” form cited a different interpretation from city staff on the question of how wetlands can be mitigated.
The staff report evaluating the City Place project indicates that City Place exactly meets the relevant codes for the R4C zoning of the area:
(Image links to higher resolution file.)
As de Parry and his legal counsel, Scott Munzel, emphasized throughout the evening’s discussion, the project meets the relevant code and could not, they contended, be denied.
The reference to chickens coming home to roost was to the previously proposed PUD which had been denied, a project that provided an affordable housing component, as well as a green building benefit. De Parry had shown drawings of a flat-roofed version of the “by right” project when pitching the PUD. Derezinski pointed out on Tuesday night that it was well understood that the denial of the PUD meant the “by right” project would be brought forward.
How Tall Is 30 Feet and What Is a Roof?
During public commentary, planning commissioners heard from several neighbors who contended that the building’s height did not meet the 30-foot maximum, or at least took advantage of a loophole, because the drawings indicate that the buildings are 42.5 feet tall. And during deliberations, two commissioners – Evan Pratt and Kirk Westphal – scrutinized the question of whether the building as proposed met the R4C standard of 30 feet.
At issue is the definition of building height as specified in Ann Arbor’s city code:
Building height. The vertical distance of a building measured from the average elevation of the finished grade within 20 feet of the building to the highest point of the roof for a flat roof, to the deck line of a mansard roof, or to the midpoint elevation between eaves and ridge for a gable, hip or gambrel roof of a building. [Emphasis added]
For the City Place buildings, (B) is the midpoint between (A) the ridge and (C) the eaves. The vertical distance between (B) and the ground is 30 feet, thus satisfying the R4C requirement for building height.
(A) ridge, (B) midpoint, (C) eave
Pratt and Westphal wondered how the relevant “eave” was identified, given the prominence of the dormers constituting the third floor of the buildings. If the eave of the dormer – which is higher than the eave specified in the drawings – is taken to be the eave in the definition, then the plan would not conform to the 30-foot height requirement. Westphal wondered specifically how narrow the strip of roof could be that connects the eave with the ridge and still have it qualify as the eave. Pratt joked that given the interior layout of the building, and the apparent interpretation that the slanted covering of the dormer was not the roof, it meant that one-third of the residents “would not have a roof over their heads!”
Pratt would eventually vote against the approval, while Westphal voted for it.
Although commissioner Craig Borum shared some misgivings about the height interpretation, he said that he could not hang his hat on that, because the pitched roof was a better design than the flat-roof alternative. Borum pointed out that above the 30-foot mark was only attic space in the proposed building – so the design plus the height definition wasn’t used to gain additional living area.
Is 36 Spaces Enough Parking for N Units?
Where Borum did seem to feel he could hang his hat was on the question of adequate parking – not the number of units per se (which meet code) but on the practical reality of the potential number of vehicles that might be associated with these particular dwelling units. Each of the six bedrooms per unit can be rented separately – a “household” can consist of up to six unrelated people. In this case, the market for such units would be students, each of whom could potentially own a car. The idea is that an increase in parking demand could become a public nuisance, so it’s on point (c) that Borum wanted to hang his hat – similar to the Burger King case:
(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.
Commissioner Eric Mahler countered Borum’s argument with the general principle that “the specific trumps the general.” In this case the code requirement is specific: 1.5 parking spaces are required per dwelling unit. Mahler thus contended that this requirement trumped the more general concern that a lack of adequate parking could cause a public nuisance.
Commissioner Ethel Potts took up the point of how a dwelling unit is defined, saying that if each bedroom was equipped with a bathroom, then a microwave oven could work as a minimal cooking facility, with the result that each bedroom was in effect an efficiency apartment – a dwelling unit. Based on comments from planning staff and commissioner Jean Carlberg, however, the common area and configuration of the entrances make the rooms part of a larger dwelling unit.
The Central Area Plan and Zoning Decisions
In evaluating the merits of City Place against the city’s central area plan, city planning staff’s report highlighted the project’s lack of consistency with the scale and character of the existing neighborhood. From the staff report:
The following are some of the applicable goals and actions stated in the central area plan.
(a) Neighborhood preservation
i. To protect, preserve, and enhance the character, scale and integrity of existing housing established residential areas, recognizing the distinctive qualities of each neighborhood.
ii. To encourage the development of new architecture, and modifications to existing architecture, that complements the scale and character of the neighborhood.
(b) Infill development
i. To ensure that new infill development is consistent with the scale and character of the existing neighborhoods, both commercial and residential. (HN47: identify sites where a compilation of small parcels for larger developments is appropriate. Otherwise the combining of smaller parcels and subdivided residential areas is considered inappropriate.)
(c) Tension between commercial and residential uses
i. To protect housing stock from demolition or conversion to business use, and to retain the residential character of established, sometimes fragile, neighborhoods adjacent to commercial or institutional uses.
(d) Out of scale construction
i. To encourage the construction of buildings whose scale and detail is appropriate to their surroundings.
(e) Historic preservation
i. To encourage the preservation, restoration or rehabilitation of historically and culturally significant properties, as well as contributing or complementary structures, streetscapes, groups of buildings and neighborhoods.
ii. To preserve the historic character of Ann Arbor’s central area.
iii. Where new buildings are desirable, the character of historic buildings, aggregates and streetscapes should be respectfully considered so that new buildings will complement the historic, architectural and environmental character of the neighborhood.Although the scale of the proposed project is inconsistent with the scale and character of the surrounding residential neighborhood due to the size of the proposed buildings …
Scott Munzel, attorney for the developer, noted his disappointment that elements of the central area plan with which the site plan was consistent were not highlighted by city staff (e.g., protection of neighborhoods from commercial encroachment), but emphasized that the central area plan had no legal relevance.
Whether the central area plan has legal relevance was a point contested at the public hearing on Tuesday night, as well as in an email sent to all the relevant parties by Tom Whitaker, president of the Germantown Neighborhood Association. Whitaker cited two court cases – LeDuc v Charter Township of Lyon (December 23, 2008) and Jarvis Associates v Charter Township of Ypsilanti (November 25, 2008) – in which master planning documents like the central area plan had been upheld as the basis for denying approval of proposed projects.
On Tuesday evening, Derezinski said that what struck him immediately about the two cases was that they both involved rezoning. In the case at hand, City Place, there is no rezoning requested.
Whitaker also cited the Michigan Zoning Enabling Act, which specifies (without regard to whether a site plan requests a rezoning):
(4) A decision rejecting, approving, or conditionally approving a site plan shall be based upon requirements and standards contained in the zoning ordinance, other statutorily authorized and properly adopted local unit of government planning documents, other applicable ordinances, and state and federal statutes.
In deliberations, Mahler said that he did not interpret the “shall be” clause to mean that a site plan had to meet every condition specified in every one of the planning documents referenced.
Compromise Plan?
In the interim between the rejection of the PUD version of City Place by city council and the “by right” proposal on Tuesday, there had been discussions between de Parry and neighbors on a compromise plan. De Parry reported that the compromise version of the project would have preserved the facades of six of the seven houses that are to be demolished for the project. Planning commissioners expressed disappointment that they weren’t being presented with some version of that compromise. De Parry indicated that neighbors had broken off the discussions.
A Moratorium on R4C Building?
In early March, city council passed a resolution directing city planning staff to evaluate R4C zoning districts in the central area. In light of that initiatve, begun by council’s representative Tony Derezinski, some of the speakers asked for a moratorium on all building in R4C districts. Commissioner Evan Pratt indicated some interest in floating the idea formally, but the idea didn’t gain much traction.
Outcome: Voting for approval were Wendy Woods, Eric Mahler, Tony Derezinski, Jean Carlberg, Kirk Westphal, Bonnie Bona; voting against approval were Evan Pratt, Craig Borum, Ethel Potts.
I was at this meeting. The lack of backbone among most members of the planning commission was amazing. All the developer had to do was say “law suit” and most members rolled over. As this article makes clear, it is for the members of the p.c. to interpret and apply the zoning codes, and it may do so even if its contrary to staff interpretation. Here the roof line and number of units quite arguably violated a fair reading of the applicable provisions of the code. And then there’s the health and safety requirement. And then there’s the fact that the law of Michigan allows them to rely on the Central Area plan. If p.c. members wanted to vote against this they easily could have. If they didn’t its because they didn’t want to or were afraid of potential legal action. If its the latter, this is NOT a way our city government should operate.
Question:
How much will this project add to the city’s tax base? What will be the additional property tax revenue?
Not being sued seems like a good thing to me. And, David, you are sure it would hold up in court if they turned it down? So you are an attorney who specializes in zoning law?
The city attorneys do. Most people I know who of who didn’t follow their attorney’s advice got into deep dodo. If I was on the PC and the city attorney said “this is a by-right proposal” I would vote for it.
Health and safety? A new apartment building is going to be unhealthy and unsafe? Prove it.
Alan has a good point. Why not some new development in this town? Why does every development have to run a gauntlet of fierce opposition? Surely there must be some good developments?
40% of the real estate in this town is untaxed. Anybody who ever complains about the city budget should swear off opposing development.
Hi Ted. I actually am an attorney with experience in municipal law. To my knowledge, the city attorney has not weighed in on this project or the issue of the planning committee’s purview. My guess is, if s/he had, they’d say basically what I’m saying — that the P.C. has the right to interpret and apply the zoning regulations to a proposed project, and as long as their reading isn’t arbitrary and capricious, it will be upheld in Court. What, to my mind, made the P.C. back down the other night was the threat of litigation, not their chances of success in it. Basically, they adopted your motto of “not being sued is a good thing.” They had no clear sense of their rights/powers and need one if they are to operate as they are supposed to.
Thank you for your excellent reporting and analysis on this question. It is a critical one and needs to be answered in an authoritative way.
David: Good to hear.
The PC has I am sure heard from the city attorney’s office regarding By-Right proposals in the past. They may have received communications from the attorney’s office on this development as well.
I think there are two attorneys (Eric Mahler?) on the PC. Council Member Derezinski is one and I remember from his campaign that he worked on zoning law when he was in the state senate. Thus his quote in this article.
The Michigan Zoning Enabling Act was passed in 2006. It combined three separate zoning acts (county, township, and city/village) into one act. Under the provisions regarding site plan approvals, the 2006 MZEA explicitly stated:
“(4) A decision rejecting, approving, or conditionally approving a site plan shall be based upon requirements and standards contained in the zoning ordinance, other local unit of government planning documents, other applicable ordinances, and state and federal statutes.”
The legislature then amended the language in 2008 to add the words “statutorily authorized and properly adopted” so that it now reads:
“(4) A decision rejecting, approving, or conditionally approving a site plan shall be based upon requirements and standards contained in the zoning ordinance, other statutorily authorized and properly adopted local unit of government planning documents, other applicable ordinances, and state and federal statutes.”
Clearly the City has not taken the time to consider the impact of this legislation on local ordinances (even though it is THE enabling legislation that gives them the power to have a zoning ordinance at all) or they would not be following a more restrictive procedure for site plan approvals than the one mandated by the State. Heck, if the Central Area Plan cannot be considered in a site plan approval, then why did they have the staff spend hours researching and writing a multi-page report on how many ways this project violates it? The CAP is also used for all sorts of other zoning functions so it is clearly a living, breathing policy document that is valued by the City (or at least sometimes it is).
But let’s forget about the “statutorily authorized and properly adopted” Central Area Plan for a moment and just focus on the zoning ordinance itself.
The Planning Commission made numerous statements about how the zoning codes are faulty and how they’ve been in this same spot numerous times in the past. There are vagaries surrounding roof heights and what makes up a dwelling unit, and there’s no definition of such zoning basics as “roof,” “dormer,” “kitchen” or “common facilities.” Vagueness provides an opportunity for more discretion in interpreting the ordinances, not less. Instead, the City simply retreats into its shell, allowing developers to interpret the ordinances for them and approving anything that can even remotely be interpreted as meeting the minimum requirements. This is not good zoning practice and is not what planning and zoning was intended to do for our community.
By far the best and safest approach for the City to take right now is to call a moratorium on developments in the areas in question, get the errors and loopholes corrected, and bring the code into compliance with the master plan. Such moratoria have a very sound basis in case law as long as they are specific and temporary. In Michigan, even projects in the approval pipeline are not exempt from a legally applied moratorium.
I would point out one minor correction to the article. Mr Pratt stated that he intended to bring forth a motion to recommend a moratorium to Council during “New Business.” Unfortunately the meeting ran long and they adjourned prior to getting to any new business. So, it’s not that the idea had no traction, but simply that it was never formally considered and debated. I thought I sensed interest by several commissioners.
I think that the relevant eaves would have to be those atop the dormers, which would fit with the intent of the building height language. Consider an extreme case where the “roof” extends even further toward the ground, for whatever reason–shading south-facing windows might be a valid reason, while designing to gain more building height would be less so.
Similarly, the intent of the parking requirement per dwelling unit likely wasn’t adopted with six or more unrelated adults per unit in mind–at least not for all units in a building. This is really a private dorm, not typical multi-family housing. Is parking metered in that area as it is near U-M dorms?
Interesting that Mahler interpreted the “and” in section 4 of the MZEA as an “or”.
Well its nice to see that the NIMBY’s have made it from the PC meeting to the Chronicle.
Unfortunately, the earlier version of the project – which were better for the environment, City, neighbors and developer – were rejected. Now we are saddled with a future student ghetto project because the neighbors/city are deathly afraid of change.
The reactionary citizens of this city, who are deathly afraid of change, have used the zoning code (specifically provisions of the PUD) to fight change, oops I mean projects. Now when a project complies with the same code, they still complain.
My hope for the future is that people will be honest and simply say, “I don’t want X in my neighborhood/city”.
In the case of some small buildings, like garages, the type of foundation required by the city depends on the height of the eve. This seems reasonable to me. The height of the eve is used as a simple predictor of the wall load on the foundation. As the wall load increases so should the foundation.
Defining eve height in the manner used to approve this development would allow construction of a two story building on the foundation of a small garage or shed. I do not believe the Ann Arbor building department would approve such a structure.
I would like to thank the Chronicle for covering this important story, and also to comment briefly on no 10 (anonymous). It is not that neighbors are afraid of change at all costs, it is the nature of the change that is at stake. The destruction of a whole panorama of old houses, a panorama that defines the very area, is a matter of great concern to many who live in the city, not just in the immediate environs. Add to that the fact that everything that has been proposed as a replacement for these lovely old houses is an architectural monstrosity, one by one, is also extremely troubling. There was a time, apparently, when architecture was an art; these proposals are simply a disgrace. There is plenty of room for reasonable development in Ann Arbor, and the plans that were drawn up at great cost describe where that development should take place. A few people want to destroy our neighborhoods for a few dollars, and this does not serve the public good. Mr. Whitaker, moreover, has demonstrated that there is a legal basis for turning down such monstrosities.
Just so there is no misunderstanding, I think this project should be turned down. While I think many times there is this push against NO new building in the city, that everything related to new housing is bad, and that people who claim to support ‘affordable housing’ start screaming when it’s in their neighborhood, the proposal approved last night was a mistake.
Has anyone looked at the developer and previous projects they’ve been involved in? Wiping out an entire block for ‘student housing’ with next to no parking shouldn’t be approved and city council should have some guts and reject it when it comes up for approval.
Hopefully my 4th Ward Council members will vote NO.
I, too, oppose either proposal for the site, though not because it is student housing; most of those houses are currently student apartments. Instead, I oppose it for the same reasons as #11 above; they are awful designs that will contribute poorly to the historic streetscape. I sympathize with the developer’s efforts to create functional housing and increase residential density (even if it is just students). However I can’t sympathize with his (or his architect’s) inability to put together a building or buildings that have anything to do with Ann Arbor’s unique character, or that will aesthetically replace what’s being lost. I realize he’s trying; I also recognize he’s failing.
Having said that, Council’s continuing inability on their part to construct a coherent set of downtown development guidelines, after years of effort, is maddening in itself.
The initial proposal was for work force, affordable housing. The location allowed for residents to work at the University or Downtown.
Allegedly, this is a key desire in Ann Arbor (increased pedestrian traffic, reduced car emissions, more density downtown). Yet the project is rejected under the auspices of historic preservation (in a non-historic district), bad architecture (everyone has their own opinion) and the project is not in the character of the neighborhood (code for ‘I’m a NIMBY’).
This city is filled with people who do not want to see any change but are too intellectually corrupt to admit the reasons why.
Young Urban Amateur – This proposal isn’t downtown but in case you haven’t noticed the whole community, or least all those who want to, has been involved in re-visioning downtown and doing it properly with a lot of public involvement takes time but it is almost there.
Anonymous Obs. makes a good point. It does not seem like there is anywhere in this town where change is acceptable.
Not on South U, Not on Fifth, not on N. Main even with Avalon Housing involved, not even Zingermans can replace a burned out building.
Sometimes people say “but there is no affordable housing.” But Avalon’s proposal is all affordable housing!
Zingermans is the best company, the most giving organization anywhere. Avalon has a sterling reputation. And yet not even these icons of the community can develop property to do more of what they do best.
Where in this town is it OK for people to develop the property they own and pay taxes on?
The law is the law. If the new plan falls within the law the council has to vote yes. What kind of example is it if our own government to pick and choose which laws they want to obey. Citizens are not allowed to do that and I would hope our elected officials would not.
I think the original proposal was a much better proposal. When a group in town is anti-everything and fights tooth and nail against every planned development regardless of the merits of the proposal, they lose all credibility. Now the entire city must suffer with a proposal that is law abiding but not as appropriate for the city.
Be careful what you wish for…..
Yes, I recognize that nearly all the voices in the city (and even from the county) have a place in constructing the planning guidelines. Note I didn’t say exactly which piece of the process I found maddening ;) I hope that all involved parties can come to a consensus soon.
For the record, I support (with some strong reservations) the Near North proposal.
Let me also say that the City Place developer does seem to be making a good faith effort in being open with the city about the merits of his designs, and in working under the restrictions placed upon him by the city. It’s unfortunate that better coordination of efforts was not apparently possible under the circumstances.
The Zingerman house should have been approved, the scaled down South U and North Main Street projects should have as well. I don’t think the Germantown project should be. And the Courts/Police building I was opposed to cash coming from the budget surplus, carefully built up to be used as a funding source while services were being cut. I didn’t like the dishonesty.
Some of us who aren’t for a couple of projects on this list can’t be caged into being called ‘anti-everything’. I think affordable housing doesn’t mean just’rental’ apartments. It means being able to purchase a place of your own.
But it also means I get sick to my stomach at the elistism of groups that scream ‘we love history’ and make homeowners on the Old West Side spend months begging to replace a previously brown down with a green door too. The key is a balance between the two extremes.
The Down South U. project was approved but I think it was only because it was a by-right project. The Avalon proposal on N. Main is still at the planning commission so you can still come out and support it.
The City Place proposal is now a by-right, the better looking PUD was turned down. I bet this version is approved. Obviously the case law cited here and at the planning commission does not, did not stand up to legal review by the city’s attorneys who study this stuff all the time.
The down payment on the much needed new courthouse and police headquarters came from a facilities savings fund the city had been building since the 1990′s. No dishonesty there.
Very little of it came from the fund balance. The fund balance is still above the target they set years ago. Besides, I don’t think it would be wise to spend the fund balance on recurring expenses, that is how governments get into trouble.