Planning Commission: A Matter of Timing

Ann Arbor City Planning Commission (June 1, 2010): City planning commissioner Evan Pratt’s garden doesn’t have any deadlines attached to the work he does in it. So there might not be any corn this year, he says.

He was illustrating why he thought deadlines in the approval process for site plans and other petitions were a good idea.

But Pratt was the lone dissenter on the commission, which recommended that deadlines in the city’s zoning code be replaced with a standard of “reasonable time.”

The current deadlines apply to two different stages of site plan reviews. The first is the maximum time between the planning commission’s receipt of a report from city staff and the commission’s recommendation – 60 days. The second stage is the time between the planning commission’s recommendation and city council action – 30 days. The commission voted to recommend replacement of the deadlines with language that refers to a “reasonable” time.

Currently, if the bodies do not act within the prescribed time parameters, site plan petitions are considered to be recommended or approved automatically – by default. At its Tuesday meeting, the automatic approval language was recommended to be dropped from the city code.

The code changes regarding timing would now need city council approval in order to take effect.

The timing issue joins two other technical revisions to the city’s zoning code, which the planning commission voted to recommend at its previous meeting. Those revisions involve fee reimbursements associated with applications and a requirement that up-to-date drawings for site plans be publicly accessible 24/7 for a week prior to public hearings.

At Tuesday’s meeting, the commission also heard a presentation from the city’s environmental coordinator, Matt Naud, on the city’s environmental indicators. Part of the background of the presentation was a recent joint meeting of the city’s planning, energy and environmental commissions that focused on sustainability.

Technical Revisions – Time Parameters for Decisions

Before the planning commission was a technical issue on the maximum time allowed for decisions on projects that are brought through the city’s development review process. The proposed amendments to the city’s zoning code are part of a related set of technical revisions the planning commission is handling. The timing issue had been looked at a year ago and had been sent back to the city attorney’s office by the planning commission with suggested revisions.

Any change to the city code would need to be approved by the city council.

Time Parameters: Background Description

Wendy Rampson, head of planning for the city, summarized the proposed code changes for the commission. The amendments, she said, will change when the planning commission provides its recommendation to the city council for area plans, site plans, plats, and planned project petitions. It will eliminate the 60-day limit. It will also eliminate the current requirement for the city council to approve or reject a petition within 30 days. Instead it requires the city council to take action within a “reasonable time.” Finally the amendments will eliminate the assumption that a petition is considered approved if no action is taken within the currently specified time period.

For most of the petitions, she said, planning commission makes its recommendations to the city council within 60 days of receiving the staff recommendation. And the city council must make a decision within 30 days of receiving the planning commission’s recommendation on those items – 90 days in the case of a planned project. Any of the petitions are considered to be recommended by the planning commission or approved by the city council, unless the body acts within the specified time limit. But both bodies, she said, can exceed the time limits by 30 days if they elect to extend the time limit.

None of the time limits, she told the commission, are required by state law. She suggested that the time limits were included in the code as a way to indicate accountability for the process. There’s always an interest, she said, in moving forward with projects so that they are not stalled. But city staff and the commission have also expressed concern about moving forward with projects without full staff review and being complete in the evaluation before petitions are put up for recommendation or a decision.

The current timing requirements, Rampson said, leave very little room for the resolution of complex issues – for example, when there is a neighborhood concern that requires staff to go back and meet with the developer. Rampson called the assumption that a petition is approved if not acted on within the time parameters “burdensome” because of situations where a review would not be complete if they adhere to the strict rule of the time frame.

The language, Rampson said, was in the state enabling legislation for planned unit developments (PUDs) – it allows for a “reasonable time” to do the review. Among the petitioner, the public, the planning commission, and the city council, Rampson said, there’s an interest in moving projects forward. The proposal, she said, would also remove the assumption that a project would be approved by default if no action were taken. She said that the planning commission’s ordinance review committee had reviewed the changes a year ago, and the planning commission as a body had already reviewed some of the items – the plat project changes that needed to be made not been included at that time – and the planning commission had at that time recommended approval.

But Rampson told the commission that a year ago there had been some concern about the language. The city attorney’s office as well as planning staff had gone back and done additional research, and the insertion of the phrase “reasonable time” had come out of that additional work. The ordinance review committee had most recently looked at the issue in March of this year and recommended the changes for approval. So the city staff is recommending approval of the changes, she said.

Time Parameters: Ordinance Text

The amendments on time parameters cover submissions for approval of planned projects, area plans, site plans, and plats. Here’s the proposed amendment for site plans. The language to be deleted is indicated with a strike-through. Language proposed to be added is in italics.

Chapter 57 – 5:122. Site plans.
(3) Site plans for City Council approval. Except as otherwise provided in this section, City Council shall review and approve or reject a site plan after receiving a report and recommendation from the Planning Commission. The Planning Commission shall submit its report and recommendation to the City Council within 60 days of receiving a report and recommendation from the planning and development services manager or designee. The City Council shall approve or reject the site plan within 30 days of the recommendation by the Planning Commission. Within a reasonable time following the close of the public hearing, the Planning Commission shall make a recommendation to the City Council to approve or deny the planned project. Upon receipt of the Planning Commission’s recommendation, the City Council shall approve or reject the planned project within a reasonable time following the close of the public hearing. If approval is conditioned on changes to the site plan, the petitioner shall submit revised drawings with the necessary changes to the planning and development services manager or designee within 30 days of approval by the City Council or the site plan approval shall lapse. Any changes to a condition placed on the site plan by City Council shall require City Council approval.

Time Parameters: Public Hearing and Commentary

Mike Rein of the architectural planning firm of Bowers + Rein was first to address the commission during the public hearing. He began by saying that he wanted to clarify he was not against dropping the provision that a project would automatically be approved if no action were taken within the time parameters. He had concerns instead about eliminating the time requirements. From a petitioner’s standpoint, he told them, to get before the planning commission was already a very difficult and time-consuming process.

If it’s a complex petition, Rein said, there are a lot of different review departments and professional staff who have to review the project. It’s “no small undertaking” to get before the planning commission, he said. One thing you could always count on as a petitioner, he said, was that if you got before the planning commission or the city council, it would move along in a timely manner. He asked why it was necessary to eliminate the 60-day time limit entirely. Why was it not possible to try a 90-day or a 120-day time limit? The language of a “reasonable” time frame did not provide a lot of assurance, he said.

Kyle Mazurek, vice president of government affairs for the Ann Arbor-Ypsilanti Area Chamber of Commerce, spoke on behalf of that organization, which had completed a merger between the two cities’ chambers that very same day. He expressed opposition to the proposal to eliminate time frames from the current review process and to replace them with “reasonable time” parameters. The objections were based on two considerations, he said: accountability and certainty. The vagueness and murkiness of the language was not adequate to hold the bodies accountable, he contended. The lack of a quantifiable standard could result in a lengthier, more burdensome review process.

The uncertainty would also create a major deterrent for developers to invest in the community, create jobs and help grow the tax base. Rather than create uncertainty, Mazurek said, the city should seek to expedite the current review  process. He reminded the commission that previously when the proposal had come before the planning commission, they had been “concerned that the proposed language did not offer any assurance to petitioners that their petitions would be acted upon in any reasonable time.” He said that the chamber did not see how the current proposal addressed that concern.

Mazurek said that he could reasonably argue that in the past, Ann Arbor’s review process had been influenced by political considerations. He was concerned that the reasonable time standard would only exacerbate the role of such considerations in projects moving forward. He suggested that if modifications were needed, then an incremental change should be explored, instead of an outright repeal.

Brad Mikus echoed the sentiments of Mazurek and Rein. If there was a problem completing review within the current time frame, he suggested that the time frame be increased. Concerning the proposed language, he asked, “What’s ‘reasonable’?”

At the conclusion of the meeting, Jim Mogensen put the timeline issue in the context of future staffing conditions. Five years ago, he said, there were more projects and more staff. Now there are fewer projects and fewer staff. In another five years, he said, there will hopefully be more projects – but fewer staff. Staffing levels would have an impact, he suggested, on the ability to meet deadlines. One of the possibilities that had been considered in the budget process for this year, he said, was the idea of outsourcing the planning function. He cautioned the planning commission against that, as he’d cautioned the city council against that approach as well. There would be too many opportunities for conflict of interest, he said, with people involved in the approval process, who also might have other projects coming to the city for approval.

Time Parameters: Commission Deliberations

Throughout deliberations there was a lot of support expressed for dropping the automatic approval clause if the time parameters were not met.

Tony Derezinski, who also represents Ward 2 on city council, said he was one of the people who had raised concerns about the language the last time the planning commission had reviewed the issue. He said he still had those concerns. They were essentially the same concerns as expressed by Rein and Mazurek, as well as conveyed in a letter from developer Dan Ketelaar. Said Derezinski: “It is a worry.”

Derezinski said that making the allowable time longer is justified, especially in the case of complex projects. He was interested, therefore, in knowing how long the review process currently took. Wendy Rampson said that as part of the A2D2 downtown rezoning process they had reviewed the time it had taken for site plans and rezoning just for the downtown area – not citywide. The time period covered was from the year 2000 forward. [.pdf of the review for process times]

Based on those projects, Rampson said any of them that had zoning already in place ranged between three and five months. Projects that involved a planned unit development (PUD) rezoning were substantially longer. One of them took a year and a half, she said. For those that have taken an extraordinarily long time, she said there had been a mutual agreement between the planning commission or the city council and the petitioner to hold off making a decision.

Derezinski asked what the usual pattern was in cities across Michigan – are there time frames in the ordinances? Rampson said that she could not speak to that issue and that Kevin McDonald of the city attorney’s office and Alexis di Leo of the planning staff had focused on the language of the state enabling legislation, she thought. Reacting to the suggestion that some of the public commenters had made to try a longer time frame instead of getting rid of the time frame together, Derezinski said he would be willing to try the “reasonable” standard as long as it’s tracked for a year to see how long it actually takes for a review process. Lawyers are used to the “reasonable man” standard, he said.

Evan Pratt also asked about the average time frame for current review processes. He wanted to know what the “on switch” was for starting the clock. Was it the completed application? Rampson said they measured from the date of application until the final approval. Pratt suggested that one thing the commission would like to see is petitioners coming to the planning commission for pre-application meetings. If complex issues could be raised before the clock started to tick, he said, it would minimize the time it takes. It was important, he said, to get all the issues on the table prior to the project coming before planning commission and city council.

Pratt said that things that have deadlines seem to get done sooner than things that don’t. He wondered if it’s possible to figure out what the current practice is and write that down, in terms of time frames that could actually be met. “My garden doesn’t have a deadline and there may be no corn this year,” he joked. He came back to the idea that pre-petition meetings with a working session would be a good idea.

Jean Carlberg said in her experience, it was unusual for a review process to take more than one extra meeting of the planning commission. She allowed that she understood developers’ fear about there being delays, but that recent experience did not support that fear. Everyone had an interest in moving projects through the process. Wendy Woods echoed Carlberg’s sentiments.

Erica Briggs said she shared concerns about the lack of definiteness and wondered if time periods of different lengths had been entertained. She said she supposed there had been good reasons for inserting the time periods into the code in the first place. Rampson responded by telling Briggs she had not been part of the review of the ordinance when it took place a year ago. [Rampson recently moved into the planning and development area from systems planning.] But she said there was a reluctance to set time frames generally – getting items onto the council’s agenda, she said, was a lengthy process.

Derezinski suggested an amendment that would require the tracking of the time it took for various projects to make their way through the process. That tracking would take place over the course of a year and then there would be a report back to the planning commission and the city council.

Pratt wanted to know how well the city was performing against the current standard. He asked, “What is the problem? What are we trying to fix?”

Derezinski’s amendment requiring that performance be tracked for a year was unanimously approved.

Pratt came back to the issue of understanding why the revision to the ordinance was being examined. “Why are we doing this?” he asked. He argued for delaying consideration until they had a clearer understanding of that. However, he did not move for a postponement.

Carlberg characterized any specific time frame as “arbitrary.” Either body – the planning commission or the city council – could always vote to extend the deadline anyway, so it’s effectively not a deadline. The commission always gave it their “best shot,” she said, and setting a specific time created an “unrealistic expectation.” It was more realistic, she said, to say that they would move as fast as they could.

Kirk Westphal, responding to Carlberg, said he would like to think the way she described things held true. However, he understood the fear that removing a schedule could mean things get slower – there’d be no schedule to check against. Westphal expressed some concern about what “best practices” were across other communities. He felt he needed more information to make that call, because there were issues of perception related to whether Ann Arbor was business-friendly. Perception of communities as business-friendly, he said, played a role in how people allocated their investments.

Briggs said she would like to see all the cross-community comparisons done, but recognized that the city’s planning staff had limited resources.

Westphal suggested that he’d be comfortable passing the recommended revision on to the city council with some kind of cursory review before the council voted on it – 5-6 phone calls and a couple of hours, to gather information about what other communities are doing.

Rampson indicated that Kalamazoo had no time limits and made reference to the collaboration of all parties, but said that the language was too broad for this particular ordinance revision.

Woods said she’d feel okay sending it to the city council – some projects would simply take “forever,” no matter what, she said.

Eric Mahler, an attorney, stressed he was not offering a legal opinion on behalf of the city. But he said that it’s always better to have certainty than uncertainty. There was a vested interest, he said, in handling things in the most expedient way possible. He said it would be nice to see a legal memo that explicated what “reasonable” meant. He was concerned about the legal risks that the term might pose. However, he said given that the city attorney’s office had reviewed it, he assumed that any risk had been properly assessed.

Mahler said he was not concerned with the planning commission as it was currently composed, but rather with the fact that the body would change in the future. But he also allowed that the world might be very different 30 years from now or 50 years from now, and the flexibility of “reasonable time” might be appropriate.

Outcome: The planning commission recommended that time limits be removed from the city’s zoning code about review of area plans, site plans, plats, and planned project petitions – to be replaced by a standard of “reasonable time.” The automatic approval for failure to act within a prescribed time was recommended to be dropped. The motion was passed with Derezinski’s amendment on one-year tracking.

Technical Revisions – Availability of Plans

At the planning commission’s previous meeting, on May 18, 2010, the group had recommended another technical revision to the city code addressing the requirements of the city with respect to the way that petitions are handled.

Currently, the city’s code on the approval process requires that up-to-date drawings for site plans be available in the lobby of the city hall 24/7 for a week before public hearings. The proposal recommended by the planning commission would relax the code by deleting the 24/7 requirement and by making clear that there’s not an obligation to continually update the material with any changes that might be made. Material recommended to be deleted is struck through, with proposed added language in italics.

5:135. Public information and hearings.

(2) Area plans, site plans, site plans for Planning Commission approval, PUD site plans, and preliminary plats and land divisions under review shall be displayed in a publicly accessible location in City Hall open to the public 24 hours per day, 7 days each week, for at least 1 week prior to the City Council and Planning Commission public hearings. Plans shall be current at the time of placement and subsequent revisions, if any, shall be available in the planning offices.

This code requirement has factored into the review of a project in the city’s recent history – City Place.  The current version of that project – called Heritage Row – is coming before the city council for approval at its June 7, 2010 meeting.

Back in the summer of 2009, City Place came before the city council, but was remanded back to the planning commission, due in part to errors the city had acknowledged involving the public information requirements of the city code.

From the text of the June 15, 2009 city council resolution that sent the project back to the planning commission [emphasis added]:

Whereas, Upon investigation, city staff have determined that there were errors and inconsistencies in site plan documents presented to the city planning commission and available to the public for review prior to, during and after the planning commission’s consideration of the city place site plan on April 21, 2009; and

The specific issue with City Place was called to the attention of the city attorney’s office by Ann Arbor resident Tom Whitaker, and the city attorney’s office was reminded of Whitaker’s objection by his legal counsel, Susan Morrison. From a May 27, 2009 letter sent by Morrison:

As described below by Mr. Whitaker, the site plan drawings on display in the City Hall lobby prior to the April 21 st Planning Commission public hearing did not include subsequent amendments made by the petitioner that were acted on by the Planning Commission. In a letter to the Mayor, City Council, Planning Commission members and other staff dated May 13, 2009,  Mr. Whitaker stated:

The drawings on the table in the lobby of City Hall were not, as of yesterday [5/12/09], are still not the actual ones reviewed and acted on by Staff, City Planning Commission, and soon-to·be, by City Council. Because the public cannot access the planning department files after business hours, the public did not have access to these site plans 24 hours per day, one week before the Planning Commission meeting, as required. The drawings in the lobby are original submittals that were changed rather dramatically by the petitioner prior to final Staff review and Planning Commission action. One of the drawings reviewed and included in the CPC packet (showing a newly-added accessory building) was not even completed by the architect until 4/15/09 – just six days prior to the hearing – a violation on its face.

Had the now recommended changes to the city code been in place back in 2009, the errors and inconsistencies cited by Morrison and Whitaker, and acknowledged by the city, would not have existed.

In the city planning staff report recommending the change, one reason given is the practical challenges of meeting the standard:

Given recent security changes to City Hall, this strict standard is virtually impossible to achieve and leaves the City vulnerable to procedural challenges. After normal business hours, and particularly in the overnight hours, there may be instances when City Hall is not open to the public. There have also been times during the normal business day (such as the recent closure of City Hall for 2 hours for an all-employee meeting in January and a 36-hour closure in April due to elevated carbon monoxide levels) when the building was closed to the public.

The staff report also cites the increased prevalence of high-speed telecommunication technology – among private citizens as well as through the public library – as a reason for recommending the change. For commentary on the issue, see a previous Chronicle comment written by Tom Whitaker: [link]

Planning Commission Work Plan

In its other business, the commission approved its work program for the year. Highlights include work on master plans:

• Corridors (1-Washtenaw, 2-State, 3-Plymouth, 4- N. Main)
• Master Plan – Land Use Update
• Master Plan – PROS (Parks, Recreation & Open Space) Update
• Capital Improvements Plan
• Connector Feasibility Study – State, Plymouth
• Sustainability Study
• Allen Creek Greenway Plan
• Huron River Impoundment Plan

Also on the planning commission’s work plan is a review of various ordinances:

• Minor Zoning Text Revisions
• Downtown Zoning A2D2
• Downtown Design Guidelines
• A2D2 Floodplain Ordinance
• Area, Height & Placement
• R4C/R2A Study
• Citizen Participation Ordinance
• Sign Ordinance amendments
• Zoning Ordinance Re-Organization (ZORO)

Outcome: The planning commission approved its work program for the year.

Environmental Coordinator: State of the Environment

Matt Naud, the city’s environmental coordinator, gave a presentation to planning commissioners on the city’s environmental indicators. They are based on 10 environmental goals set by the city council. Naud’s presentation to the commission was a follow-up to a recent joint meeting of the environmental commission, the energy commission, and the planning commission on sustainability. [Chronicle coverage: "Building a Sustainable Ann Arbor" See also The Chronicle series on environmental indicators.]

Naud  reviewed with the planning commission how the city’s State of the Environment report had been developed by the environmental commission originally in 2000. In that year, it was a 10-page report. In 2004 it had become a 100-page report. And at that point, the city realized there was so much information that needed to be included that it should be a web-based document. It would be a living document that can change.

The report is now organized, Naud said, around large goals like clean air and clean water and mobility – significant goals that will take a while to achieve. Within those goals are specific objectives that correspond to 60 different environmental indicators. Questions from planning commissioners drew out the fact that there is a difficulty in measuring certain areas because they depend more on regional factors than on things local to the city of Ann Arbor. One example is air quality – there is an Environmental Protection Agency air-monitoring site in Ypsilanti that is used. But Naud said the real determinant of air quality depends on what kind of air is coming from Chicago and Grand Rapids – “their air comes our way.”

During public commentary, Brad Mikus told the commissioners that last week he was at the environmental commission talking to that body about planning issues, so he figured this week he might as well be at planning commission talking about environmental issues. He told commissioners that a couple of years ago, the city had put in a new park – Mary Beth Doyle Park. There’s a big detention pond there, which fills up and then slowly releases water into Malletts Creek, he told them.

The idea is that it’s supposed to help remove phosphorus and other pollutants. Mikus told the commission that it was a really nice park and that there will be a volunteer work detail on June 5 to help with park maintenance – he encouraged them to come. With respect to the state of the environment report, he wondered if people use it simply as a report or if they use it as an action tool. For example, do people focus energy on those indicators where we’re currently doing poorly? Or do they focus resources on those areas where we are doing well, reasoning that we’re actually able to have an impact on those areas. He also wondered if the planning commission could suggest to developers that they use more environmentally friendly design, by citing the report.

Present: Erica Briggs, Jean Carlberg, Tony Derezinski, Diane Giannola, Eric Mahler, Evan Pratt, Kirk Westphal, Wendy Woods.

Absent: Bonnie Bona.

Next meeting: The planning commission next meets on Tuesday, June 15 at 7 p.m. in city hall council chambers, 150 N. Fifth Ave. [confirm date]