City Settles Lawsuit: Must Conduct Study

Council required to have substantive talk on use of email

On March 15, the Ann Arbor city council voted to direct its city attorney to settle a lawsuit filed in August 2009 over the construction of an underground parking garage on the city-owned Library Lot site along Fifth Avenue. The lawsuit addressed environmental concerns, open meetings and freedom of information issues, as well as nuisance allegations by neighboring property owners.

Now the city of Ann Arbor has settled that lawsuit, accepting a range of requirements under the agreement.

Under terms of the settlement signed on Monday, the city has agreed to comply substantively with a request that one of the plaintiffs – The Great Lakes Environmental Law Center – had originally made over two months before the lawsuit was filed. That request was to conduct a study of environmental impacts associated with construction of the new underground parking structure, which is being built by the Downtown Development Authority.

The lawsuit settlement does not resolve the question of whether city councilmembers committed violations of the Open Meetings Act, when they communicated during their meetings via email about an agenda item related to approval of bonds for the parking structure.

However, the Ann Arbor city council is required by the settlement terms to discuss publicly, at one of their April 2010 meetings, the possibility of establishing a council rule that addresses which email accounts they use to conduct city business.

In the part of the lawsuit settlement that addresses the nuisance claims, the city must make various accommodations to ameliorate the impact of construction on neighboring properties. Those accommodations are primarily focused on providing adequate advance notice about specific construction events, and include 2-hour parking validation stickers for patrons to be provided by the city.

The settlement agreement does not require the city explicitly to make expenditures associated with any of the obligations that the city has agreed to meet, or to compensate any of the parties monetarily.

Backdrop to the settlement is an election-year political dynamic, which includes Steve Bean, chair of the city’s environmental commission, who’s now declared himself as an independent candidate for mayor of Ann Arbor. Bean was not a party to the lawsuit.

However, before the decision to issue bonds for the underground garage construction was made, he had argued unsuccessfully for the city to treat the construction of the parking garage as an environmental issue, calling for an environmental impact study to be completed before a decision was made. Elected officials, including mayor John Hieftje – who has now taken out petitions to run for mayor again – had resisted Bean’s call for an environmental study.

Construction on the underground structure has now begun. In settling the lawsuit, the city has agreed to undertake, after the fact, some of what Bean had asked them to do before they started.

Background material includes:

Background: Environmental Issues

Part of the lawsuit and the settlement involve environmental issues. The key piece of legislation is the Michigan Environmental Policy Act (MEPA), which prohibits activity that is “likely to pollute, impair, or destroy” the environment unless “there is no feasible and prudent alternative.”

In its May 14, 2009 letter to the city council, the Great Lakes Environmental Law Center (GLELC) pointed to the MEPA and contended that:

For the City of Ann Arbor to ensure that it is in full compliance with the MEPA and not polluting, impairing, or destroying Michigan’s environment, it must engage in a thorough, thoughtful, and public process to identify and understand any potential environmental impacts of, and alternatives to, the proposed new parking structure.

The letter, sent on behalf of several parties – including the Natural Resources Defense Council – outlined what that public process should look like, from which we extract the bullet points:

  • Identification and Evaluation of the Purpose and Need of the Proposed New Parking Structure
  • Evaluation and Requirement of Alternatives to the Proposed New Parking Structure
  • Evaluation and Requirement of Steps to Minimize the Impacts of the Proposed New Parking Structure
  • Open and Public Process

The letter also cites Feb. 16, 2009 email correspondence from Steve Bean to the city council and the mayor. GLELC’s letter points out that Bean was writing as a private citizen, not as chair of the environmental commission, because that body was not asked to evaluate the project from an environmental point of view. In part, that correspondence from Bean reads as follows:

I’m writing to ask that you

- postpone action on the proposed underground parking structure at the “library lot”,

- request a comprehensive presentation by the DDA on its parking availability data for the structures as well as on its parking demand management efforts, and

- perform a more extensive analysis of the presumed need for the structure and possible alternatives before approving its construction.

I believe that a delay is fully justified given the state of the economy, the upcoming addition of several hundred new parking spaces elsewhere downtown, the incomplete implementation of alternatives for managing peak parking demand, the lack of consideration of environmental impacts (such as greenhouse gas emissions) from increasing parking supply, and the likelihood of a permanent decrease in parking demand early in the lifetime of the proposed structure. (The last two might seem contradictory, but any increase in emissions, no matter how short-lived, would be very detrimental.)

In a follow-up letter sent by GLELC to the city attorney and to legal counsel for the DDA on May 29, 2009, also signed by Natural Resources Defense Council, the proposed remedy to address the requirements of the MEPA are listed out as follows:

1. Working with the Ann Arbor Downtown Development Authority (DDA), identify
and inventory all actual and anticipated changes in the City’s public parking in the
downtown area [...]

2. Working with the DDA, implement a “formalized process for determining when new [parking] supply is needed” as recommended in the Ann Arbor Downtown Parking Study [...]

3. Working with the DDA and its consultants (ideally Nelson\Nygaard given their expertise and previous work with Ann Arbor’s downtown parking and transportation data and planning), conduct a preliminary study to predict if the proposed new parking structure will impact VMT in the City of Ann Arbor and southeast Michigan region. [...]

4. Allocate an additional $1.5 million per year for the next 5 fiscal years from the DDA’s parking revenues for alternative transportation and transportation demand management measures, to implement “toolbox” recommendations from the 2007 parking study. [...]

5. Working with the DDA, mitigate to the extent feasible pollution and other environmental impacts during construction using measures that include the use of low sulfur fuels and particulate traps on diesel equipment, storm water management, and dust suppression. [...]

6. To partially address the impact of increased traffic to and from the proposed new parking structure and the impact of significant new parking availability at this location on the environment and character of the nearby Germantown neighborhood, [...]

Settlement: Environmental Issues

The lawsuit’s settlement agreement signed on Monday does not include the allocation of any money for alternative transportation measures as suggested under point (4) of the May 29 letter. However, the settlement agreement requires the city to implement a process that reflects (1) and (3) of that letter and echoes the sentiments expressed by Bean in his attempts to convince the council to delay a decision in order to conduct a study.

The settlement agreement text outlines the requirements the city must meet in undertaking a study:

Step 1. The New Study will list all decisions regarding public parking that have  been made by the DDA or the City after the 2007 Ann Arbor Downtown Parking Study (the  “2007 Study”) data were gathered but on or before January 31, 2010, and determine the difference in the overall number of public parking spaces available in Ann Arbor in 2011  (assuming the new garage is completed in 2011, and without regard to the effect of any decisions  that may be made after January 31, 2010) compared to the 2007 Study level. If the difference is  a net increase of 100 or fewer public parking spaces, then the New Study will be deemed to be complete. If the difference is a net increase exceeding 100 spaces, then the New Study shall continue to Step 2.

Step 2. The New Study shall estimate the expected number of cars seeking public  parking in 2011. If parking demand is expected to decrease from the 2007 Study level, the New  Study will be deemed to be complete.

Step 3. The New Study shall estimate how many of the additional cars could be  accommodated by the net increase in the number of spaces determined in Step 1, except that the maximum number of spaces evaluated shall be the number of spaces in the new parking structure. That figure will then be multiplied by an estimate of the additional vehicle miles traveled (likely from the 2007 Study regarding vehicle miles traveled by users of the parking  system). An emissions factor will then be applied to the number of vehicle miles to estimate the  greenhouse gas emission impact from net additional vehicles that could be accommodated by the  parking structure. It is understood that the 2007 Study’s survey had insufficient sampling and insufficient statistical power to generate the additional vehicle miles traveled, and therefore, the New Study will be an educated guess with significant uncertainty, and not a scientific determination of such emissions. At the sole discretion of the City, the New Study may use an emissions factor that is the same or different from the one used in the 2007 Study, and may consider any new information to supplement the survey data from the 2007 Study regarding vehicle miles traveled by users of the parking system.

Step 4. The New Study will identify new measures, policies, and actions that may  mitigate any estimated greenhouse gas impact (if any) of the additional cars seeking public  parking that can be accommodated by the new parking structure. This may include new  measures, policies, and actions to offset and reduce greenhouse gas emissions in furtherance of the City’s resolution to reduce greenhouse gas emissions 20% from 2000 levels by 2015. However, nothing in this Agreement requires the City or the DDA to implement any measure, policy, or action identified in the New Study or obligates or restricts the City or the DDA in any  manner other than is described in this Settlement Agreement.

Step 5. An opportunity for public participation will occur prior to the New Study being finalized. That participation shall consist of a minimum of one public hearing (which may  be satisfied by a televised public meeting of the Environmental Commission at which there is an  opportunity for public comment), and one opportunity to submit written comments.

If the net increase in parking spaces is less than 100, it would allow for quick dispatch of the study requirement at Step 1. While that would eliminate some subsequent steps, it would call into question the financing plan for the project’s bond repayments, which assumed a combination of increased parking rates and increased parking inventory.

The city council passed a resolution at its July 6, 2009 meeting that commits the city eventually to establish the surface parking lot at First & William, which has 108 spaces, as a park. However, that future reduction will not be countable as a reduction in the net available parking for purposes of the settlement agreement’s “New Study” – unless that conversion of the First & William lot to a park can be shown to be expected by 2011. [Additional Chronicle coverage: "First & William to Become a Greenway?"]

Also part of the assumptions underpinning the financing plan for the bond repayments is the idea that demand for parking will not decrease – either as a result of higher rates or other factors – but will continue to be commensurate with the parking available in the system after construction of the underground parking garage. This assumption is addressed in Step 2, which deems the new study to be complete if it’s shown that demand for parking is expected to decrease. Again, while this would satisfy the requirement of the settlement agreement, it would raise questions about the viability of a financing plan that is dependent on stable or increasing demand for parking.

After “completion” of the study in Steps 1-4, the settlement agreement requires a Step 5 – a public hearing – before the study is “finalized.”

The settlement agreement also does not require the city to engage the services of a consultant, as suggested in the May 29, 2009 letter sent by GLELC. Rather, the agreement specifies that it’s “the City’s environmental staff, working with [Downtown Development Authority] DDA staff” who will conduct the study.

The settlement agreement explicitly rejects the implication that the city of Ann Arbor must undertake environmental impact studies for other building projects:

Nothing in this Agreement shall mean that the City has any obligation to conduct any environmental study for any other building project, or that the City is required under the Michigan Environmental Protection Act or any other environment act to conduct any similar environmental study for any other building project.

The city is, however, conducting an environmental assessment in connection with the Fuller Road Station, which in Phase I consists of a parking structure and a bus station. The memorandum of understanding on the project between the city of Ann Arbor and the University of Michigan makes clear that the environmental assessment is related to its hope that federal funding can be obtained:

The City will conduct an Environmental Assessment consistent with the National Environmental Policy Act, at its expense and for its sole benefit, to enable federal funding of Fuller Road Station.

Background: OMA and FOIA Issues

Part of the complaint in the lawsuit alleges that the city violated the Freedom of Information Act (FOIA) because “[u]pon information and belief, much of the material exempted from GLELC’s FOIA requests were disclosed as part of a similar FOIA request submitted by The Ann Arbor Chronicle.”

The complaint also alleged that the city council violated the Open Meetings Act (OMA) in the course of exchanging emails unseen at the time by the public during council’s Feb. 17, 2009 meeting. Some of the emails exchanged by councilmembers addressed the subject of postponement of a vote on the parking structure bonds.

The Chronicle published an opinion column on Oct. 1, 2009 that analyzed why such email exchanges are violations of the OMA, regardless of whether a quorum of councilmembers participated in them. That position is aligned with the Attorney General’s OMA Handbook, which states:

… e-mail, texting, or other forms of electronic communications among members of a  board or commission during the course of an open meeting that constitutes deliberations toward decision-making or actual decisions violates the OMA, since it is in effect a “closed” session.

The publication of the opinion column ["When's an Open Meeting Open?"] prompted a phone call to The Chronicle from the city attorney, Stephen Postema, but he declined to speak on the record about the legal analysis presented in the column. Postema also refused a later request to be interviewed on the subject, and also declined an opportunity to be interviewed for this article.

Settlement: FOIA and OMA Issues

In the settlement agreement, the question of the alleged FOIA violation is resolved as part of the “recitations” as follows:

The parties recognize that the City has provided all documents (subject to permissible statutory exemptions) requested by the FOIA requests of the plaintiff Great Lakes Environmental Law Center.

The question of the OMA violations as a result of emails sent during council meetings, however, is essentially left open.

In the wake of the email scandal that had erupted the previous spring, at its Sept. 10, 2009 meeting, the city council approved a new council rule that requires email activity during meetings to be restricted to city business. Messages from councilmembers are required to go only to city staff – or other councilmembers, if the content is limited to draft amendments and resolutions. All such drafts are to be read aloud before discussion by the council.

At its  Sept. 21, 2009 meeting, the council approved a resolution requiring that emails sent and received by councilmembers during the meeting will be attached to the minutes of those meetings.

Under the current set of rules and resolutions on how city council meeting minutes are handled, it would be possible for councilmembers to use non-government accounts to send email messages, and thereby shield those communications from public view. Outside of their meetings, it is known to The Chronicle that councilmembers use non-government accounts to communicate with each other on topics of council business, and that the city of Ann Arbor does not produce records of such communications, even when those city records are responsive to requests made under the FOIA.

The settlement agreement requires the city council to contemplate their use of non-government email accounts on substantive council matters by considering the following amendment to their rules:

City Council members will use their City e-mail accounts when sending e-mail communications about substantive City business, to the extent feasible. This rule does not cover communication to constituents or residents or communication regarding political activity.

The settlement agreement does not require the council to adopt such a rule, but just to consider it at one or more of their April 2010 meetings.


  1. By John Floyd
    March 23, 2010 at 11:40 pm | permalink


    Do the rules and resolution adopted by council in September 2009 apply only to council e-mails made with the city’s e-mail system? From your description above, it seemed that the requirement to attach e-mails to meeting minutes was not limited to particular e-mail systems, that it would apply even if a council-person used their own private e-mail system to discuss council e-mail.

    It strikes me that the whole issue would go away if council members adopted the legislative version of “hang up and drive”: turn off your computer, and pay attention to the meeting”. If paying attention is too much trouble, perhaps these members are not really the right choices for elective office.

  2. By Dave Askins
    March 24, 2010 at 3:33 am | permalink

    Re: [1] “Do the rules and resolution adopted by council in September 2009 apply only to council e-mails made with the city’s e-mail system?”

    The emails to be attached to the minutes are described in the resolution as follows:

    … all electronic communications defined as public records under the Freedom of Information Act sent to and/or from members of Council during a City Council meeting, with deletions authorized by that Act, to the official minutes of that meeting when published on the City’s website.

    Based on empirical inspection of the results, it appears the city has a production process that works like this: Using administrator access to the email system, harvest any relevant email messages through appropriate machine filtering; do not exclude from production any emails that are sent from accounts to private email systems; do not exclude from production any emails that are sent to accounts from private email systems.

    What that production process systematically excludes is those messages that might be sent from a private email system to another private email system. To produce such messages, the city would need to ask people to look at their private email systems and identify any responsive emails and to provide them.

    As the article mentions, based on our experience in requesting documents created outside of council meeting times, the city seems not to provide the private-private emails in response to FOIA requests. This could be due to the city’s failure to ask people to provide them, or the failure of people to provide them when asked. It’s also possible that it’s not possible to generalize from our limited experience about what the city’s policy is. On that score, we’ve been able to elicit from the city attorney’s office only that they “do not exclude” the private emails from production.

    It actually boils down to a charter issue: city records are required to be stored in city offices, according to the city charter. At first glance that means that private-private emails on council business would not be stored in city offices, hence be a charter violation. There’s a whole issue there, however, about what it means to be stored somewhere. If the record can be accessed from a city office, even if the digital storage medium is not physically in the office, does that count as being stored in the office? It’s hard to see, though, how private-private email messages would ever count as stored in a city office.

    So the new rule that the council is required to contemplate as a part of the settlement agreement appears to be a corollary to the city charter.

  3. By John Floyd
    March 24, 2010 at 9:24 pm | permalink

    David, sometimes your knowledge & thoroughness is almost frightening.

    In any case, it seems that use of a private e-mail account for public business depends upon both the good will and the memory of the user to be available to the public.

    2nd Q (not rhetorical): beyond distributing bill amendments to council members, what is the justification for computers even being on during council meetings. Seems a bit like texting your buddies during class, instead of following the lecture. At the risk of repeating, “Hang up and drive”.

    3) That any of this comes up at all suggests that this council lacks street cred.

  4. By Dave Askins
    March 24, 2010 at 10:37 pm | permalink

    Re:[3] ” … beyond distributing bill amendments to council members, what is the justification for computers even being on during council meetings?” I’ll rephrase the question slightly: What useful, constructive purpose does a laptop computer for each councilmember serve during a council meeting? Rather than speculate and theorize, consider a photo of a laptop screen in use at a city council meeting: [photo]. In that April 2009 photo, Marcia Higgins is reviewing a frontage map in connection with deliberations on the A2D2 downtown rezoning package.

    Higgins’ use of her laptop on that occasion is surely an example of useful and constructive use. Other examples could include reviewing the staff memos that are attached to various resolutions — they’re typically chock full of background information. The same information is also available to the public online as a part of the city’s Legistar system. So I think it’s pretty easy to make a case that there are myriad useful and constructive uses for laptop computers during a council meeting.

    Returning to the point of the original question, however, which is about “justification”: Do the myriad useful and constructive uses of laptop computers justify their use during council meetings? The question presupposes there is some downside to their use during meetings. Some members of the community see a risk that councilmembers will exchange snarky email messages, or play Doom, or update their Facebook pages, or conduct deliberations via email. Councilmembers typically acknowledge that there is a risk, but that it’s extraordinarily small, given their revisions to council rules, and heightened public awareness.

    Discussion in the community has focused on that kind of risk, to the exclusion of another kind of downside. It’s precisely the reliance on laptop computers by councilmembers for these myriad useful and constructive purposes that makes their meetings very difficult to follow — for anyone who does not have access to the electronic council packet as they watch the meeting. Imagine a world where there were no laptop computers and complete paper packets were provided to councilmembers. It would only be fair to provide copies of the material to the attending public as well, so that they could follow along. In our actual world, however, the only way you can follow along with the same access to information that’s available to councilmembers is to (i) stay home with your desktop computer and watch on CTN or else (ii) bring your own laptop plus wireless modem aircard — there’s no free wireless available in the council chambers. Rather than focus on the first kind of downside, I think we’d more usefully focus on the second — it’s not tied to our faith in a particular set of councilmembers, so is perhaps less fraught with controversy.

    I think it’s a reasonable standard for any public meeting that the information upon which the body deliberates is as accessible to the public at the time of deliberation as it is to the members of the body.

    That standard currently isn’t met by the Ann Arbor city council. Yet it is mostly met by the historic district commission and the planning commission. Both of those bodies use a single staff computer, hooked up to a projector, and the material in the staff reports is projected on the screen. Members of those bodies are reasonably well practiced in asking to look at various slides from different points in the presentation. Everyone is “on the same page” — commission members and public alike.

    The city council could adopt a similar strategy. I suggested that in a previous column: [link]. It would require some adjustments to the layout of the seating to create projection sightlines (currently the mayor and city administrator have to move out of the way for presentations), and it might require some expenditures for different furniture or remodeling to the dais. I wonder if the needed configuration could be achieved with the 3% “give-back” of their salaries that councilmembers made: ~$5,500.

  5. By LiberalNIMBY
    March 24, 2010 at 10:52 pm | permalink

    I second the call for laptop-free council meetings. Perhaps someone could chime in and cite an instance where it was essential that councilmembers have their computers operating–meaning, for example, it saved 15 minutes of time–and I’d re-think my position. Even then, I’d suspect that that the cumulative damage to quality debate and decision making over the long term has got to outweigh the benefit of being able to Google a 50-cent word that the councilmember next to you just used.

    Perhaps someone can dig up a study that demonstrates that laptop use during (what are supposed to be) intellectually demanding discussions is just as damaging to decision making as cell phone use is to driving? Since the latter equates to consuming 3 pints of beer, I’m confident someone could pass a compromise resolution like serving each councilmember 1.5 pints in exchange for closing their computer.

  6. By John Floyd
    March 25, 2010 at 9:58 pm | permalink


    There seems to be concern about which e-mail system council members use precisely because when using a private e-mail system, the public cannot check on what a council member is doing. The presumption, then, is that when council members think they can do something unobserved – like violating the Open Meetings Act – they will. As the distinguished and beloved editor of a well-known on-line newspaper once observed, it is OMA violations that are the real danger of council’s use of computers during meetings, not the opportunity to share their contempt for the public with colleagues – contempt they likely would feel even without e-mail. Instead of passing increasingly arcane rules, that increasingly devious elected officials can find their way around, I still say, “Hang up and drive”.

    It is embarrassing that we have to wonder what our elected officials are REALLY doing when they use computers during council meetings. Even if it turns out that they have got religion on computer use, it seems that we cannot give them the benefit of the doubt about that. We have to keep them afraid that we might check on them. Makes me feel like I need three pints of beer.

  7. By Dave Askins
    March 25, 2010 at 10:06 pm | permalink

    Re: [6] ” Instead of passing increasingly arcane rules, that increasingly devious elected officials can find their way around, I still say, ‘Hang up and drive’.”

    Just to clarify, my suggestion to use a single staff computer — with its screen connected to a projector — was meant as a specific implementation of the “Hang up and drive” approach. That is to say, it presupposes that councilmembers will not also use their own laptops to supplement that staff computer.

  8. March 25, 2010 at 10:06 pm | permalink

    Just to point out that BOC members do not have laptops. The things in front of them are just screens to be shown what is being projected.

  9. March 25, 2010 at 10:52 pm | permalink

    @8: “BOC” = Washtenaw County Board of Commissioners.

    @6: “Even if it turns out that they have got religion on computer use, it seems that we cannot give them the benefit of the doubt about that.”

    Council had an opportunity to repair the trust that had been eroded by making more emails public, and they passed on it, choosing instead to put it behind them (if not necessarily us.) I like Dave’s suggestion as a belated compensation for that as well as its value to the public following the meeting.

  10. By Mark Koroi
    March 29, 2010 at 11:18 pm | permalink

    I believe that Noah Hall and the Plaintiffs can claim a well-deserved victory in this lawsuit.

  11. By Rod Johnson
    March 30, 2010 at 8:27 pm | permalink

    Good band name too.

  12. By John Floyd
    April 1, 2010 at 6:37 pm | permalink

    @7 David,

    Thanks for the clarification. I had missed your meaning.

    @11 Rod Johnson

    Clever, but I have a hard time imagining hoards of screaming teenage girls lining up for “Noah Hall & the Plaintiffs”. Maybe if the girls are all trial lawyers.