Changes to Landscape Ordinance Debated

Ann Arbor planning commission meeting (Dec. 7, 2010): Tuesday’s meeting drew no public commentary, but about a dozen University of Michigan graduate students watched the proceedings to fulfill a requirement for their “Legal Aspects of the Planning Process” class. The course, taught by urban planning professor Dick Norton, includes a final paper, which requires attendance at a public meeting. The paper is due on Thursday.

What they sat through was two hours dominated by a discussion on proposed changes to the city’s landscape ordinance, which the commission ultimately tabled. Several concerns were raised regarding required landscape buffers between multi-family dwellings and public parks or single-family homes. The ordinance would also increase the fines for violating the ordinance, from $500 to up to $2,500 – that change was not debated. Commissioners asked planning staff to revisit the draft.

During the time set aside for communications, Tony Derezinski – who also represents Ward 2 on city council – gave an update on actions at Monday night’s council meeting that touched on planning issues. Saying it was “like the corpse that would wink,” he reported that he and councilmember Sandi Smith had attempted, unsuccessfully, to bring back the Heritage Row project, a residential development on South Fifth Avenue that had been approved by the planning commission in March. Some modifications had been made to the proposal – which council has previously rejected in July – and Derezinski felt that might have persuaded enough councilmembers to support it. But before the project could be reconsidered, council needed to approve suspending their rules – and not enough councilmembers would vote to do that. “I needed one more vote,” Derezinski said, “and didn’t get it.”

Planning commissioner Wendy Woods asked whether there had been enough changes in the project to enable it to be submitted to the city as a new project. Derezinski said that was possible. However, he indicated that the developer, Alex de Parry, had already spent considerable time trying to move Heritage Row forward, and it wasn’t clear whether the financing he had lined up would allow further delays. Derezinski also noted that de Parry has another project, City Place, that’s already approved for that site – it’s possible he’ll build that instead.

Communications: Council, Commission

Wendy Rampson, head of the city’s planning unit, reported that the planning staff had moved their offices last week from the sixth floor of city hall to the fifth floor. It’s a temporary location – in the spring, they’ll move again to the first floor, where space is now being renovated.

Rampson also told commissioners that discussions have begun for the next two-year budget cycle, and the administration anticipates the need for cuts. She said she’d keep commissioners posted as that process moves forward.

Finally, Rampson reported on progress in the city’s application to the Home Depot Foundation for a sustainability grant. [See Chronicle coverage: "Ann Arbor Pursues Sustainability Grant"] A phone interview with Home Depot was scheduled for Dec. 8, she said. The hope is that the grant would allow the city to fund a person who can pull together all of the sustainability elements that already exist in the city’s various master plans, with the intent of creating a “sustainability framework.”

Communications: R4C, R2A Study Committee

Commissioner Jean Carlberg reported that work on the R4C and R2A zoning district study is progressing. The study committee will provide the city council with a report and recommendations for potential ordinance changes in R4C (multi-family residential) or R2A (two-family residential) zoning districts. She said the advisory committee is reaching consensus, and will likely plan a public hearing on proposed changes in January or February. In addition to Carlberg, committee members include Tony Derezinski, Chuck Carver, Ilene Tyler, David Merchant, Wendy Carman, Carl Luckenbach, Ellen Rambo, Michele Derr, Julie Weatherbee, Nancy Leff, Ethel Potts and Anya Dale.

Derezinski complimented the planning staff on their patience and “incredible tact” over the past several committee meetings. He said it hasn’t been easy, as several people have their own areas of concern.

Communications: City Council Update

Derezinski reported that Monday’s city council meeting lasted until about 1:15 a.m., and had touched on several planning-related items. They had given initial approval to zoning changes that changes affect area, height and placement (AHP), with several amendments from the version that had been approved by the planning commission in July. In addition to the “biggie” of the attempted Heritage Row resurrection, Derezinski said the other issue that the council discussed was a medical marijuana licensing proposal developed by the city attorney’s office. He characterized their discussion as a good one, but they ultimately postponed an initial vote on the issue until council’s Jan. 3, 2011 meeting.

The licensing piece is being considered in conjunction with zoning regulations, which have already received initial approval by council, after first being approved by planning commission at their Oct. 5, 2010 meeting. Final consideration for both zoning and licensing is set for the council’s Jan. 18, 2011 meeting.

Rampson elaborated on the proposed licensing requirements, reminding commissioners that they had recommended that a licensing process be developed.

By way of background, the planning commission voted at their Oct. 5 meeting to recommend that the city institute a business license for medical marijuana, with dissent from Eric Mahler. From Chronicle coverage:

There were no additional details in the planning staff report about a possible license. Although it had been mentioned at previous meetings that the city attorney’s office was developing a proposal about licensing medical marijuana businesses, planning commissioners had not previously discussed the topic in depth.

Deliberations were brief. Jean Carlberg asked whether a license would only apply to dispensaries, or if it would be required of cultivation facilities and “home occupation” businesses as well. Kristen Larcom of the city attorney’s office said she didn’t know, because they hadn’t yet drafted a proposal for the license. Kirk Westphal asked if the license might include a cap on the number of dispensaries in the city, or require that there be building security. Larcom said that it might.

Outcome: In a 7-1 vote, the planning commission approved a motion to recommend that city council institute a medical marijuana business license. Eric Mahler dissented, and Wendy Woods was absent from the meeting.

Mahler did not comment during the public meeting on this issue. When asked by The Chronicle following the meeting about his reason for voting against it, Mahler indicated that they didn’t know what the license would entail at this point, and it was difficult to support something without that information.

At Tuesday’s meeting, Rampson said the licensing proposal would limit the number of medical marijuana dispensaries and cultivation facilities in the city to 15. Home occupations wouldn’t be limited, she said, but they would be required to obtain a license and they’d be subject to inspection.

Derezinski also reported that he had updated city council about efforts to develop a Washtenaw Avenue corridor improvement authority. Four jurisdictions are involved – Ann Arbor, Ypsilanti, Ypsilanti Township and Pittsfield Township. Of those, Derezinski said that Pittsfield Township and Ypsilanti have both approved some version of the project, and that Ypsilanti Township’s board will be considering it soon.

He noted that at the Dec. 4 Ann Arbor council budget retreat, city administrator Roger Fraser had stressed the importance of collaboration. It was a message that Kirk Profit, a Lansing lobbyist for the city, had reiterated at Monday’s council meeting, Derezinski said – collaboration is an important priority for the incoming governor, Rick Snyder. Derezinski added that the Washtenaw Avenue project is a major example of collaboration that could produce wonderful results for a stressed corridor.

Landscape Ordinance

City planner Jeff Kahan and Jerry Hancock, Ann Arbor’s stormwater and floodplain programs coordinator, gave a detailed report on the proposed changes to Chapter 62 of the city code – the landscape and screening ordinance. [.pdf draft of landscape/screening ordinance changes]

Hancock said the intent is to improve water quality by requiring that a greater amount of stormwater runoff is “infiltrated” on the site where it is generated. [Infiltration is a process that retains water before allowing it to filter out into the soil.] The changes also aim to encourage the use of native plants and prohibit the use of non-native invasive plant species, he said.

In addition, Hancock said the planning commission’s ordinance review committee, which had evaluated and provided input on the changes, had requested that the ordinance include: (1) additional types land use – such as multi-family dwellings – that are required to have a conflicting land use buffer; and (2) an increase in the number of trees in the conflicting land use buffer.

Highlights of the proposed changes include:

• Prohibiting the use of invasive species, such as euonymus alatus (burning bush), lonicera tatarica (tatarian honeysuckle) and acer platanoides (Norway maple). For the past decade, the city has been encouraging projects to use non-invasive species, Hancock said – this change simply codifies that request. He later indicated that information on salt-tolerant native species is available from the city’s natural area preservation program.
• Mandating that some of the required interior landscape islands in parking lots be constructed for use as bioretention.
• Building in design flexibility by allowing variable-width landscape buffers.
• Adding multi-family and townhouses to the list of land uses that require a conflicting land use buffer. Currently no buffer is required between buildings, though it is required between parking lots and dumpster areas.
• Increasing by 25% the number of trees required in a conflicting land use buffer.
• Providing the planning commission and/or city council with flexibility to modify the strict planting requirements, to accommodate bioretention and native prairie plantings.
• Omitting the “grandfather clause” on nonconforming sites that has existed since 1986 for by-right projects, and allowing the planning commission to review nonconforming sites on a case-by-case basis.

Another notable change is that fines for violating the ordinance would increase from $500 to up to $2,500.

The landscape and screening ordinance comes into play when: (1) a site plan is submitted to the city for approval; or ( 2) the estimated expenses of construction for a site improvement project exceed 50% of the appraised replacement cost of the entire building or structure (exclusive of foundation), prior to its improvement; or (3) a shared driveway is constructed within an easement.

Hancock noted that he’s been working on these changes since 2000. The natural features committee of the city’s environmental commission got involved in the project in 2006, and the full environmental commission recommended approval of this draft in March 2010.

No one spoke during the public hearing on these ordinance changes. For purposes of this report, the commission’s discussion is organized by topic.

Landscape Ordinance: Nonconforming Sites

Tony Derezinski began the commission’s discussion by asking whether the city attorney’s office had reviewed the draft. He wondered whether substituting the case-by-case process in place of the grandfather clause related to nonconforming sites would constitute a “taking” – this was an issue that had emerged during the discussion of the medical marijuana ordinance, he said.

The section that is proposed to be stricken from the landscape ordinance is this:

5:611. Nonconforming Sites.

Landscape elements which are a part of site plans approved and constructed prior to the effective date of this ordinance and which meet the requirements of Chapter 62 as adopted March 17, 1986 may be maintained and continued as nonconforming sites, provided no alterations of the existing landscape elements are proposed.

Hancock replied that the city attorney’s office had looked at some of the proposed changes and hadn’t raised any red flags. The ordinance would be fully vetted by the city attorneys prior to going to city council, he said. Hancock also noted that this ordinance would only kick in for new site plans or if a property owner planned a major change on the site.

Later in the meeting, Eric Mahler said he was concerned about striking this section. In evaluating projects on a case-by-case basis, there’s a danger of being too subjective. He wanted to see more guidance on this issue written into the ordinance.

Landscape Ordinance: Bioretention and Parking

Jean Carlberg congratulated the planning staff for including bioretention in parking lots, saying it was something she’d been pushing for many years. She asked why a carport had been included in the definition for a “vehicular use area” – which is required to have landscaping and screening. Hancock said they were trying to close an existing loophole. Carports, because they aren’t enclosed, have the same impact as any outdoor parking space. But under the current ordinance, they aren’t required to have landscaping or screening.

Kirk Westphal asked whether the kind of bioretention that’s proposed is more expensive than current requirements. Hancock said it would be. Currently, the only requirement is for an “inhospitable” mound for a tree and grass, he said.

Wendy Woods asked whether this requirement could be counted toward the site’s overall stormwater retention requirements – Hancock said that it would, clarifying that it would allow the property owner to use a smaller underground retention tank, for example.

Woods asked if there are sites that currently use this type of bioretention, and whether there are any problems with it. Hancock gave the example of the Mallets Creek branch of the Ann Arbor District Library – bioretention islands are used in its parking lot, he said. There haven’t been any probems with it, he said. It’s more visible because the vegetation used is higher than grass, and it is bordered by curbs, just like other parking lot islands.

Woods also asked about the additions related to snow removal (the additions are indicated in italics):

5:602. Vehicular Use Area Landscaping and Screening. …

(h) Provision shall be made for snow pile storage locations such that they do not damage required plantings nor diminish required parking capacity.

and

5:607. Site Plans. …

(13) Identification of snow storage areas including a statement that snow shall not be pushed onto interior landscape islands unless designed for snow storage.

How would these requirements be enforced? she asked. Hancock admitted that enforcement would be difficult. However, in the current ordinance there’s nothing to enforce against, he noted. These changes require that some consideration of the issue be given during the design phase, he said, and if someone files a complaint, there’s something the planning staff can point to as a requirement. Kahan clarified that such a complaint would be filed with the planning staff, not the police.

Landscape Ordinance: Conflicting Land Use Buffer

Carlberg noted that parts of the conflicting land use buffer had been hotly debated in the ordinance review committee meetings. That section on conflicting land use buffers reads as follows (strike-throughs indicate proposed deletions; italics type indicates proposed additions):

5:603. Conflicting Land Use Buffers.

A vehicular use area; or an office, commercial, or industrial use; or a refuse dumpster which is adjacent to a public park facility or land principally used or zoned for residential purposes shall have a conflicting land use buffer between this use and the park or residential land. A conflicting land use buffer shall be provided under the following conditions:

A) A vehicular use area adjacent to a public park or land principally used or zoned for residential purposes.

B) A refuse/recycling container adjacent to a public park or land principally used or zoned for residential purposes.

C) The portion of a parcel zoned O, RE, ORL, C, or M abutting a public park or parcel principally used or zoned for residential purposes.

D) The portion of a parcel zoned R3 or R4 adjacent to a parcel zoned R1, R2 or a public park.

The conflicting land use buffer shall consist of the following:

(1) A landscape buffer strip averaging at least 15 feet wide over the entire length of the required buffer area, with no specific location along the buffer strip being less than 8 feet in width.

(2) One tree for each 20 15 feet or fraction thereof of abutting land. At least 50% of the trees within the conflicting land use buffer shall be evergreen. Arrangement of trees in clusters or groupings is encouraged, but in no case shall trees be more than 50 and shall be between 15 feet and 30 feet apart on center. Plantings should be placed to screen the views between buildings, that existed at the time of site plan approval, (especially windows and patio views) on the adjacent property.

(3) A hedge, landform berm, wall, fence or combination thereof forming a continuous screen at least 4 feet high. All gasoline or service stations shall employ opaque walls as the continuous screen.

(4) The site design and planting scheme shall comply with the requirements set forth in this Chapter.

(5) Materials used in these areas shall comply with standards set forth in this Chapter.

Carlberg asked why there was a requirement to have a landscaped buffer between two residentially-zoned properties, as stated in (D). Kahan explained that during public forums about changes to the city’s area, height and placement (AHP) zoning, they’d heard concerns from residents about large multi-family structures that could be built next to single-family homes. So the planning staff looked for ways to mitigate the visual impact of that situation – a conflicting land use buffer was one approach. Kahan pointed out that it wouldn’t require additional land – the buffer would be part of the existing setback, and would simply require more vegetation. That would provide a benefit for both the existing residences and the new development, he said.

Carlberg said it’s an extensive requirement – to form a continuous screen at least 4 feet high. That amount of landscaping could be difficult for some developers to afford. Kahan responded by saying that it could be added in stages, for larger developments. He also noted that as a percentage of an overall project, it was a relatively small cost. It wouldn’t be something that would deter deveopment, he said. “I guess we’ll hear about that later,” Carlberg replied.

Hancock later noted that with the exception of changes to the conflicting land use buffers section, the ordinance changes affect the quality of landscaping, not the quantity. That is, there would be no change to the amount of landscaping required – except for instances involving conflicting land use.

Erica Briggs asked if it would be possible to get a variance for the requirement of a buffer between residential properties. Yes, Hancock said – there are two mechanisms for doing that: (1) go through the regular variance process; or (2) appeal to the “modifications” section of the ordinance. That section had been developed so that a petitioner could ask the planning commission to deviate from the ordinance, depending on the details of any given proposal.

Evan Pratt asked about requiring a buffer adjacent to a public park. Was there any flexibility there? He gave the example of the Elks Lodge project, a condo development that had been proposed next to Bluffs Nature Area. [The project had been approved by the planning commission in 2007, but ultimately was rejected by the city council.] Pratt said he wasn’t sure that putting a row of plantings next to a woods made sense. Perhaps there was another option, he suggested, like a payment-in-lieu approach.

Hancock again pointed to the “modifications” section of the ordinance. Specifically, one of the instances where flexibility is allowed is when “the topographic features of the site create conditions so that the strict application of the provisions of this chapter will result in less effective screening and landscaping than alternative landscape designs.”

Diane Giannola objected to requiring a buffer for multi-family and townhome residences next to a public park. She noted that she lives in a complex of two-story townhomes next to a golf course. Even though the structures are no taller than a two-story single-family house, complexes like that would fall under the new requirement, she said. People in her neighborhood would hate having a buffer, Giannola said – they like the view of the golf course.

Kahan noted that the staff was most concerned about multi-family housing adjacent to single-family housing – the buffer for parkland was far less of a concern, he said. Rampson gave some historical context, saying that buffers between buildings and parks date back to the 1970s, when the common belief in the planning profession was that buildings and parks couldn’t co-exist. Hancock pointed out that the buffer is currently in place between parks and parking lots or dumpster areas – what’s new is adding the requirement for multi-family housing.

Bonnie Bona weighed in, saying that for park users, it’s better to have a screen of vegetation at the boundary than to have a building. She said she’s glad to see the buffer there. That said, it’s more important for her to see a buffer between multi-family and single-family zones.

Hancock again noted that there is language in the ordinance to allow the planning commission some flexibility in setting these requirements.

Carlberg raised the issue of landscaping on adjacent properties. If there was an existing landscape buffer on the property adjacent to a new development, for example, could the buffer requirement be lifted? Woods agreed that there are times when it would make sense to look at what’s on adjoining property.

Hancock said that if it’s private property, there’s an issue of equity. For example, imagine if a property owner submits a site plan and is required to put in the landscaping buffer. Then the owner of the adjacent property submits a site plan but is exempted from putting in a buffer, because the other property has it. That wouldn’t be fair, he said: “I think you’d be opening yourself up to litigation.”

Landscape Ordinance: Direction to Staff

Eric Mahler, the commission’s chair, wrapped up the discussion by asking if anyone wanted to make amendments based on the concerns that had been raised. Pratt stated his reluctance to craft amendments on the fly. Several commissioners indicated their desire for the ordinance to give the commission more flexibility, though Pratt pointed out that each time they add flexibility, they also increase the amount of time they’ll spend during site plan reviews.

Giannola reiterated that unless there’s a specific building height indicated for the multi-family dwellings, those units shouldn’t be treated differently than single-family residences.

Rampson summarized, saying that she understood the commission wanted the flexibility to say that a requirement doesn’t make sense in a particular situation, while at the same time not giving the impression that it’s open-ended.

Outcome: Commissioners unanimously tabled the resolution on changes to the city’s landscaping and screening ordinance, and directed staff to craft a revised draft to be considered at a future meeting.

Rampson clarified that after staff revises the draft, the changes would first be evaluated by the ordinance review committee, before coming back to the full planning commission.

Annexation Approved

Earlier in the meeting, with no discussion, the planning commission unanimously recommended approval of a request to annex 2562 Newport Road into the city – it’s now located in Ann Arbor Township. The city council must also approve the annexation. The parcel is on the east side of Newport, north of Warrington. The request included zoning the land as R1A (single-family residential) – a single-family home is already on the site.

The staff report indicates that the owner, Michael Betke, plans to connect the house to the city’s public water system. A water improvement charge of $1,447.09 will be assessed, and the owner must connect to water service within 90 days of annexation. When sanitary sewer service becomes available, the owner will be required to connect to the sewer and pay a fixed sanitary sewer improvement charge. The 2010 fixed sanitary sewer improvement charge was $21,930 – that charge is recalculated annually.

Public Hearings Set

The commission set public hearings for two projects at its Dec. 21 meeting: (1) a request to annex the 1.1-acre parcel at 2437 Newport Road into the city and zone it for single-family residential, use; and (2) a proposal to demolish the Allen Creek Preschool building at 1515 Franklin St. and construct a 1,101-square-foot structure there. The building is in a location that’s zoned residential – the project is requesting a special exception use, as well as site plan approval.

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

Next regular meeting: The planning commission next meets on Tuesday, Dec. 21 at 7 p.m. in the second-floor council chambers at city hall, 150 N. Fifth Ave. [confirm date]