Medical Marijuana Plan Amended, Delayed

Also: Final approval for zoning revisions, traffic code adoption

Ann Arbor City Council meeting (Jan. 3, 2011): The council’s meeting was held in the Washtenaw County board of commissioners boardroom to accommodate current renovations to city hall. Before the meeting, advocates for medical marijuana demonstrated with signs and chants on the sidewalk outside the Washtenaw County administration building on North Main.

Protesters outside the Jan. 3, 2011 Ann Arbor city council meeting

Signs held by advocates for medical marijuana before the start of the Jan. 3 Ann Arbor city council meeting. Stephen Postema is the city attorney for Ann Arbor, and also president of the Michigan Association of Municipal Attorneys, a section of the Michigan Municipal League. Postema has pushed for a licensing scheme that some medical marijuana advocates say violates the state statute. (Photos by the writer.)

Inside at the meeting, the council ultimately delayed their vote on an initial approval of a licensing scheme for medical marijuana dispensaries, cultivation facilities and home occupations. That initial vote is now scheduled for Jan. 18, with final approval expected in early February, along with zoning regulations affecting medical marijuana-related businesses. The licensing proposal to be considered by the council at its next meeting will be significantly different from the one that they started with Monday night, due to various amendments councilmembers approved, before voting to postpone the measure.

Amendments included: eliminating home occupations from the licensing scheme; increasing the number of licenses to 20 for dispensaries and 10 for cultivation facilities; creating a licensing board; removing reference to “misdemeanor involving a controlled substance”; and revising the language of required internal signage.

The council also dispatched with several other pieces of major business, with scant deliberation. Those included: final approval of revisions to the city’s area, height and placement regulations in the zoning code; final approval for adoption of the Michigan Vehicle Code and the Uniform Traffic Code; appropriation of funds for footing drain disconnection; approval of new fire inspection fees; and a contract for weapons screening services at the new municipal center.

Medical Marijuana Licensing

At Monday’s meeting, the council considered initial approval of a licensing scheme for medical marijuana dispensaries and home occupations.

Sabra Briere, Stephen Postema

Before the council's Jan. 3 meeting started, Sabra Briere (Ward 1) talked with city attorney Stephen Postema.

Key elements of the original draft licensing scheme included: no more than 15 licenses would made available citywide for cultivation facilities and dispensaries; preference for applications would be given to facilities operating before Aug. 5, when the city council passed a moratorium on the use of facilities for dispensing and cultivation; provision of names and addresses of various individuals associated with a facility; installation of security measures; posting of signs advising that use of marijuana is against federal law; consent to inspections of unspecified frequency. [.pdf of original draft licensing ordinance]

After considerable public commentary, the council contemplated a series of seven amendments to the licensing proposal, most of which were approved – most significantly the exclusion of home occupations from the proposal. The postponement of the initial vote on the licensing until the council’s Jan. 18 meeting means that a final vote on licensing will not come until February. That also resulted in a rescheduling until February of the final approval of zoning regulations on medical marijuana, to which the council has already given its initial approval.

Medical Marijuana Licensing: Public Commentary

Tony Keene had distributed a yellow two-side sheet to the audience that described an alternative strategy to the city’s proposed licensing scheme. During his public commentary turn, Keene highlighted some of main points of the alternative. Key among them is the idea that “dispensaries” are in concept not lawful under the Michigan Medical Marijuana Act, but that business models developed along the lines of “compassion clubs” and “co-ops” are. So the proposal would be to close down all dispensaries and start from scratch – with compassion clubs and co-ops and individual caregivers making up “caregiver centers.” The caregiver centers could include, among other amenities, lockbox storage for members. Dispensaries would be recast as surplus management shops that would purchase surplus medical marijuana from registered caregiver centers. The proposal also called for a non-partisan impartial commission to provide oversight.

Keene cautioned against fear and greed as two words that could destroy the conversation.

[With respect to lockbox storage for members, this appears to be part of the business model for a facility in the Mt. Pleasant area, that successfully defended against a recently attempted shut-down of the facility. The trial court opinion in State of Michigan v. Compassionate Apothecary found that the facility is operated in conformance with the state statute and does not pose a public nuisance. The inclusion of storage for members, who all have state-issued registry cards, is relevant to any proposed licensing scheme that includes regular search and inspection of facilities, because the state statute prohibits searches based on possession of a registry card.

City attorney Stephen Postema has defended regular searches and inspections of facilities as part of licensing on the grounds that seeking to operate a business is a different proposition from seeking to be a patient or a caregiver by obtaining a registry card. But the consequence of using a registry card to obtain marijuana – through membership in a co-op or compassion club – is that one's possessions could be subject to search due to licensing requirements. The contrast between searches based on possession of a registry card and searches based on separate licensing requirements for businesses could be seen as a distinction without a difference.]

Dennis Hayes told the council that he’d sent them letters expressing his view. He recalled from his days in law school, he said, how the Bill of Rights provides citizens with protection when the government possesses broad overreaching power that is unequal with respect to citizens. He reminded the council of the city’s charter amendment on medical marijuana, which also gives priority to individual rights. Hayes said that the proposed licensing scheme overlooks these individual rights. He asked the council to defer passage of the licensing scheme on its first reading and to form a committee to study the issue further.

Robin Schneider introduced herself as an advocate for medical marijuana from the Lansing area. She expressed concerns about the licensing requirements for home occupations, which would require those who are cultivating marijuana in their homes to place their names on a list. She expressed concern about what might happen if the wrong person got hold of the list. She said she did not believe that such a list would be enforceable under the state act.

Rhory Gould spoke against the stigma associated with use of marijuana to provide comfort and relief from pain. People should not have to suffer, as his grandmother had, because of their refusal to ingest marijuana due to the stigma associated with it. He said when the city council passed its moratorium, he had been in the process of setting up a business to help give patients access to marijuana. He suggested that a limit on licenses of 15 is too low, given that there could be an influx of patients who live in more conservative neighboring communities. He spoke against the idea that caregivers should have to be licensed as home occupations. He also raised the possibility that some of the information required of licensees could violate HIPPA regulations.

Charmie Gholson noted that despite the memo issued by U.S. Attorney General Eric Holder, people in Michigan have been raided by federal authorities in the last two months. [.pdf of Holder Memo, authored by David W. Ogden] Patients fear having their information placed in yet another database, she said. Gholson addressed the idea that licensing would help prevent confusion on the part of law enforcement by saying that the Michigan Medical Marijuana Act did not change the responsibilities of a police officer – an insight she attributed to attorney Mark Matt Newburg. She drew an analogy to a driver’s license – when an officer stops a motorist, the first step is to ask the driver to produce a driver’s license.

Matthew Abel echoed the sentiment that a working committee should be formed. He noted that federal search warrants had been served in June 2010 on the Michigan Department of Community Health regarding registry information. He called the limit of 15 licenses unnecessary and anti-competitive.

Rick Thompson introduced himself as the editor of Michigan Medical Marijuana Magazine. He ticked through some of the approaches to medical marijuana that other communities in Michigan had taken. He noted that in some communities, regulations had been enacted so that no facility could meet the requirements of the regulations, citing Macomb County as an example. Inspection requirements had resulted in people declining to apply for permits in Ferndale. In Livonia, an ordinance had been passed declaring the primacy of federal law and as a result, a lawsuit has been filed, he said. He noted that the litigants are patients – voters. He asked that the council strike the parts of the licensing that require registration of names and addresses of business owners, as well as the licensing requirement on home occupations.

Chuck Ream protesting

Chuck Ream demonstrating outside the Washtenaw County administration building before the Jan. 3 Ann Arbor city council meeting.

Chuck Ream criticized the characterization by city attorney Stephen Postema of parts of the Michigan Marijuana Act as “nonsensical.” Ream said the demonstration outside the building before the meeting started was to encourage the city of Ann Arbor to give up its membership in the Michigan Municipal League. [Postema and Ream have a contentious history on medical marijuana. Postema is president of the Michigan Association of Municipal Attorneys (MAMA), which is a section of the Michigan Municipal League. The MML has issued a statement indicating that it has no position on medical marijuana. However, MAMA has commissioned a study on the issue from Gerald Fisher, professor of law at the Thomas M. Cooley Law School.]

Ream criticized the approach that has been taken to the Michigan Medical Marijuana Act in some communities – trying to block it by appeal to the supremacy of federal law, having the state legislature ”mess with” it, and creating ordinances that will spur endless litigation. That approach, Ream said, would force activist judges to change the law. He criticized the inclusion of marijuana as a Schedule I drug, which he said was for drugs with no medicinal value and that are extremely dangerous. He compared the situation with Germany in the 1940s or the Middle Ages, when governments went along with the “repression of the day.”

Brandy Zink spoke on behalf of Americans for Safe Access. She thanked the council for engaging in the conversation. She described herself as a cancer survivor and an epilepsy patient, who visits Ann Arbor dispensaries. She said she would not be inclined to move to Ann Arbor if the licensing ordinance results in list-keeping. She stressed the importance of confidentiality. She said the state law is clear about prohibiting searches. She suggested that the council consult other sources of information besides the U.S. Drug Enforcement Administration and the MML.

Medical Marijuana Licenses: Council Deliberations

The council deliberations were structured by a series of seven amendments that Sandi Smith (Ward 1) and Sabra Briere (Ward 1) had worked out. Smith distributed a printed sheet with a summary of amendments, making the discussion somewhat easier to follow.

Medical Marijuana Licenses: Council Deliberations – Amendment 1 (Home Occupations)

The first proposed amendment was to eliminate Section 6:418, which sets forth licensing requirements for home occupations. It also replaced references to “cultivation facilities, dispensaries, and/or home occupations” with the phrase “cultivation facilities or dispensaries.” By way of background, a “home occupation” is defined in the city’s zoning code as: “An accessory use of a nonresidential nature which is performed within a dwelling or within an accessory building, and conducted by members of the family residing in the dwelling, and not more than one additional employee.”

Margie Teall (Ward 4) indicated she would support the amendment. Smith said she would also support it – removal of home occupations from the purview of the licensing scheme would take care of a lot of concerns that had been expressed about list-keeping and privacy, she said.

In response to a query from Carsten Hohnke (Ward 5), Briere said she was not certain that zoning would be affected by the amendment. The point, she said, was that the licensing provision for home occupations would entail the city asking to inspect homes in ways that the state law doesn’t allow. Wiring and plumbing should be handled with ordinary permitting, she said, but that is different from collecting private information.

Hohnke followed up with a query to city attorney Stephen Postema about the extent of the overlap between the proposed zoning regulations. He wanted to know what the rationale was for having the language in the original proposal. Postema responded by saying that he’d been asked by the council to provide a range of options. He indicated that he disagreed that the state law did not cover the city’s ability to include the language. He told the council that their issue was to determine whether there’s something of concern to them – it’s within the power of the city to do this, he said.

Regarding the speakers during public commentary who had expressed concerns about privacy, Postema allowed that some of their concerns would be alleviated by deleting the section. Their fear was, he said, being borne out at the state level. The federal authorities are interested in the state’s lists, he conceded. The activity of the federal authorities, Postema said, did not reflect the sentiments expressed in the Holder memo [.pdf of Holder Memo, authored by David W. Ogden].

The language on home occupations had been included in the proposed licensing scheme, Postema said, at the request of the police department so that they could avoid wasting resources on an investigation. He rejected the comparison that Charmie Gholson had made to a driver’s license during her public commentary. He reiterated that Briere was correct insofar as the privacy concerns public speakers had expressed would be taken care of, but he told the council that they needed to consider whether there are other concerns that they had.

Mayor John Hieftje indicated that based on discussions with the police, there’s a concern about growing facilities, in that other people might find out about them and a threat could develop from outside individuals.

Outcome: The council voted 6-4 to strike home occupations from the licensing proposal. Voting for the amendment were: Christopher Taylor (Ward 3), Stephen Kunselman (Ward 3), Margie Teall (Ward 4), mayor John Hieftje, Sandi Smith (Ward 1), Sabra Briere (Ward 1). Voting against it were: Stephen Rapundalo (Ward 2), Marcia Higgins (Ward 4), Carsten Hohnke (Ward 5), and Tony Derezinski (Ward 2).

Medical Marijuana Licenses: Council Deliberations – Amendment 2 (Number of Licenses)

The second amendment proposed was to modify the cap of 15 total licenses – for dispensaries and cultivation facilities combined. This was to be achieved by striking a section and substituting a new one:

6:415 (4) There shall be no more than fifteen (15) licenses total made available for cultivation facilities and dispensaries and no limit on the number of licenses available for home occupations.

6:415 (4) The first year’s licenses shall be capped at a number 10% higher than the facility licenses applied for in the first 60 days. Any license terminated during the license year returns to the City for re-issuance.

In explaining the rationale for the proposal, Sandi Smith (Ward 1) called the number 15 arbitrary. The idea was to have the number of licenses relate to the level of demand. The additional 10%, she said, would not amount to a large number of additional licenses, even if a much larger number of businesses applied. If 50 businesses applied, that would only mean an additional five licenses.

Stephen Rapundalo, Marcia Higgins

Stephen Rapundalo (Ward 2) raises his hand to be recognized to speak. To his left is Marcia Higgins (Ward 4).

Stephen Rapundalo (Ward 2) wanted to know if the city attorney’s office had any specific idea as to how many businesses were currently operating. City attorney Stephen Postema indicated that they had a list of about 12 – three are in zoning districts that would not permit their operation if the proposed zoning regulations are passed. Kristen Larcom, an assistant city attorney, clarified that they estimated about 18 businesses total – she was not certain if they were all in operation prior to the enactment of the moratorium. Sabra Briere (Ward 1) clarified that the numbers they were discussing reflected a combined total of dispensaries plus growing facilities.

Rapundalo wondered if it was possible that some businesses opened after the moratorium was enacted.

Marcia Higgins (Ward 4) expressed concern about opening up the number – 50 is more than the city can support, she said, so she would not support the amendment.

Responding to Higgins, Smith said that if the city thinks there are only 18 businesses, but there are actually 50, then those businesses must be operating in a very careful and non-obtrusive manner.

Briere noted that the licensing scheme clearly stated that the business had to already be in operation before the moratorium was enacted.

Christopher Taylor (Ward 3) tried to elicit from Postema an articulation of any possible benefits to having an absolute versus a flexible number. Postema’s response did not seem to indicate any particular benefit.

Briere suggested that the city attorney’s office had a pretty good idea of how many businesses there currently are – she thought it was more than 10 but less than 50.

Higgins suggested modifying Smith’s amendment by stipulating 20 as the number of licenses. Smith indicated she might consider that a “friendly” amendment to her amendment if it were 25. Mayor John Hieftje said the communities that have had the most problems had widespread proliferation of businesses. He felt the licensing scheme would be unenforceable without a set limit, but suggested separating dispensaries and cultivation facilities, capping each at 15.

Recognizing that only one of the existing businesses is a cultivation facility, Margie Teall (Ward 4) suggested a different mix: 25 licenses for dispensaries and 10 for cultivation facilities, which Smith accepted as a friendly amendment to her amendment.

Taylor allowed it is possible that there are businesses currently operating that the city is not aware of, but said in light of the outreach that the city attorney’s office has done, he’d wager that something like 18 is a relatively good number. Based on that, he said, he felt that the 25/10 numbers were “excessive.” He allowed, however, that to date “it has not been an apocalypse.” Still, he did not feel that multiplying the number of licenses in that way was warranted.

Smith clarified that what was being proposed was not 25/10 as the number of licenses. Instead, the number would still result from the number of applications in the first year plus 10%, with an absolute cap of 25/10. Taylor clarified with Smith that the number of licenses would be the lesser of: (1) the number of applications plus 10%; and (2) 25 licenses for dispensaries and 10 for cultivation facilities.

Stephen Kunselman, Sandi Smith, Carsten Hohnke

Left to right: Stephen Kunselman (Ward 3), Sandi Smith (Ward 1) and Carsten Hohnke (Ward 5).

Stephen Kunselman (Ward 3) said that the strategy they were contemplating seemed like a reasonable way to deal with any “surprise” about the actual number of facilities that were operating. He expressed some concern that if the cap were too low, it might cause the size of individual businesses to increase.

Postema ventured that one constraint on the size of a business is fear of being raided by the federal government. Hieftje suggested that a numerical combination he could support would be 20/10.

Carsten Hohnke (Ward 5) wanted to have a better idea of what the actual demand is for medical marijuana. Postema allowed that this is hard to assess but he ventured that businesses in California and Colorado that were looking at Michigan were not coming to Ann Arbor to fill a need for patients in Ann Arbor, but rather looking to set up a distribution network for the entire state.

Hohnke said he’d support the amendment, noting that if the number does not meet the need, the number could be increased.

Outcome: The council approved an amendment that set the number of medical marijuana licenses as the lesser of: (1) the number of applications in the first year plus 10%, and (2) 20 dispensary licenses and 10 cultivation facility licenses. Voting against the amendment were Rapundalo and Higgins.

Medical Marijuana Licenses: Council Deliberations – Amendment 3 (Licensing Board)

The third amendment considered by the council was to introduce language that set up a licensing board. In its original form, the section establishing the board read:

(7) The City Council will establish a licensing board to consist of three members of Council, one physician, one medical marijuana caregiver; these are Mayoral appointments. The Board will annually review the licensing criteria, establish the license fee structure, and recommend approval of license applications. Any changes to the number or requirements for licensing will derive from recommendations from this committee and be made to City Council for their approval.

Tony Derezinski (Ward 2) noted that the word “committee” in the last sentence should be replaced by “board” for the sake of consistency. Christopher Taylor (Ward 3) continued deliberations by suggesting the deletion of the last sentence entirely, with its main content – the review of the number of licenses – to be included in the enumeration of the annual activities of the board. The modification was accepted as a friendly amendment to the amendment.

Marcia Higgins (Ward 4) expressed concern about the weighting of the board with councilmembers and suggested a reduction from three to one councilmember. The modification was accepted as friendly to the amendment.

Mayor John Hieftje drew out the fact that staff support for the board would translate into a cost and that this could be funded with licensing fees.

Stephen Rapundalo (Ward 2) drew an analogy to the liquor license review committee – a body he chairs. He described how a great deal of energy had gone into overhauling the city’s process in order to be able to address a “few bad apples,” and went on to say that this had incurred considerable staff time from the fire and police departments. He said that initially, it had cost more because overtime expenses by staff were being incurred, so the committee modified its meeting times to avoid that. He indicated that the medical marijuana board would also need some way to set up its own processes.

Alluding to the possibility that businesses have to sell a liquor license to another business, Sabra Briere (Ward 1) noted that the language included in the limit on the number of licenses stipulated that any license that’s terminated would be returned to the city for re-issuance.

Derezinski indicated that he agreed with Rapundalo in recognizing the need of the board to determine its own procedures and to engage staff resources in the fire and police departments.

Outcome: The council unanimously approved the amendment setting up a licensing board.

Medical Marijuana Licenses: Council Deliberations – Amendment 4 (Misdemeanor)

The fourth amendment considered by the council was to remove reference to “misdemeanor involving a controlled substance” in two places:

6:415. License Required, Number of Licenses Available, Eligibility.

(2) A cultivation facility, dispensary, or home occupation shall not be eligible for a license if any person required under this chapter to be named on the application has been convicted of a misdemeanor involving any controlled substance or any felony under Michigan law, or the law of any other state or the United States.

6:417. Application for and Issuance of New Annual License or Renewal of Existing License for Medical Marijuana Dispensaries and Medical Marijuana Cultivation Facilities.

(2) An application for a new annual license or the renewal of an existing license for a cultivation facility or dispensary, shall be submitted to the City Clerk on a form provided by the City, which shall fulfill all of the requirements indicated on the form, including but not limited to:

(g) A signed release on a form included with the application form permitting the Ann Arbor Police Department to perform a criminal background check to ascertain whether any person named on the application has been convicted of a misdemeanor involving any controlled substance or any felony under Michigan law, or the law of any other state or the United States.

Stephen Rapundalo (Ward 2) asked what the rationale was for the insertion of the language. City attorney Stephen Postema indicated that it related to the ability of someone to comply with laws and that a person’s track record was one way to approach that.

Mayor John Hieftje said that when people commit crimes and then pay their debt to society, they sometimes have that held against them for the rest of their lives. He suggested a further modification that would exclude felony convictions as well, with some kind of timeframe like 10 years in the past.

Sabra Briere (Ward 1) – alluding to the provisional quarters for that night’s council meeting, in the county board of commissioners chambers – said she’d sat in the same room when the county board had struggled with the issue and she would consider Hieftje’s suggestion a friendly amendment. [See Chronicle coverage: "No More Felony Box on County Job Forms"]

Responding to a query from Christopher Taylor (Ward 3), Postema indicated that the state Michigan Medical Marijuana Act had language referencing felonies, which assistant city attorney Kristen Larcom confirmed. Hieftje then withdrew his amendment to the amendment. However, Carsten Hohnke (Ward 5) pointed out that the state law had to do with patient and caregiver registration cards, not the ability to operate a business. Postema indicated he could get back to the council on the issue.

Outcome: The council unanimously approved the amendment striking reference to misdemeanor infractions, leaving the question of felonies for analysis by the city attorney.

Medical Marijuana Licenses: Council Deliberations – Amendment 5 (Signage)

The licensing scheme proposed by the city attorney’s office included a requirement that licensed businesses post signs inside the business with the following language:


In introducing the amendment, Sandi Smith (Ward 1) noted that the revision simply reflected the full context of the Michigan Medical Marijuana Act [portion that's excised out of context in the city attorney's draft is in bold]:


Outcome: The council unanimously approved the revision to the language on the sign.

Medical Marijuana Licenses: Council Deliberations – Amendment 6 (May vs. Shall)

The sixth amendment considered by the council replaced “may” with “shall” in one section:

(3) Approval of Application. The city administrator or designee may shall issue a license for a cultivation facility or dispensary if inspections for safety and zoning compliance, criminal history background checks of all persons named on the application, …

The distinction between “may” and “shall” marks a distinction between what is permissive and what is mandatory. So Stephen Kunselman (Ward 3) expressed concern that the obligation to issue a license might conflict with the upper limit on the number of licenses available. Marcia Higgins (Ward 4) also expressed concern about the change from “may” to “shall.”

Sandi Smith (Ward 1) pointed out that there’s a distinction between “approval” of the license and “issuance” of the license – the latter being a clerical act.

Outcome: The change from “may” to “shall” was approved, with dissent from Higgins.

Medical Marijuana Licenses: Council Deliberations – Amendment 7 (Package Labels)

The amendment was to remove a requirement that a patient’s name and the prices of the product be affixed to the label of packages:

(4) All marijuana delivered to a patient shall be packaged and labeled as provided in this chapter. The label shall include:
(a) the name of the person to whom it is being delivered
(b) the name of the business delivering the marijuana
(c) that the package contains marijuana
(d) the date of delivery, weight, type of marijuana and dollar amount or other consideration of being exchanged in the transaction; and,

Stephen Rapundalo (Ward 2) asked what the rationale was behind the insertion of the language. City attorney Stephen Postema indicated that it was a requirement that would allow dispensaries to keep track of their product. He ventured that it was hard to say whether it was intrusive or not.

Rapundalo said that this is the way that pharmaceuticals are handled – it’s an issue of the product’s pedigree, he said. He didn’t see a problem with the patient name on the label, but was less definitive about having the dollar amount included.

Sabra Briere (Ward 1) indicated that she wouldn’t have objected to the original language if it had required a dispensary to maintain a ledger – it’s the idea that the information must go on the packaging that she objected to.

Marcia Higgins (Ward 4) noted that if people other than the patient – a caregiver, for example –  can pick up a package for a patient, then the patient needs to be able to know that they are getting the package intended for them and that it actually cost what was paid. Sandi Smith (Ward 1) suggested splitting the issues of the name and the dollar amount into separate amendments. However, Rapundalo suggested that the amendment be withdrawn pending further input from the city attorney.

Outcome: The amendment on package labeling was withdrawn.

Medical Marijuana Licenses: Council Deliberations – Main Motion

Amid the many amendments that had been undertaken and in light of some remaining issues, the council was reluctant to vote the proposal through on its first reading. In addition to the packaging and felony record issues, Christopher Taylor (Ward 3) indicated that he wanted to make sure that a caregiver growing 72 plants was not counted as a cultivation facility.

The council elected to postpone the issue until its second meeting of the month, on Jan. 18, which pushes the second reading of the licensing as well as the second reading of the zoning regulations to February.

Outcome: The city council voted unanimously to postpone its first-reading consideration of the medical marijuana licensing proposal.

Area, Height and Placement (AHP)

The council had already given initial approval of the area, height and placement (AHP) revisions at its Sept. 7, 2010 meeting. The changes are intended to allow more compact use of land, preserve natural systems, accommodate new growth along transit corridors, and locate buildings to promote non-motorized access. [Previous Chronicle coverage of the city planning commission's deliberations on AHP changes: "AHP Zoning Revisions Go to City Council"]

A series of postponements since the early September 2010 council meeting led ultimately to amendments approved at the council’s Dec. 6, 2010 meeting. The amendments ensure that districts providing for employment uses – Office (O), Research (RE), Office/Research/Limited Industrial (ORL) – are not subject to a cap on building height, except in areas directly abutting residential areas.

Although city planner Jeff Kahan and head of city planning Wendy Rampson were on hand to answer questions, the council, having discussed the proposal at previous meetings, approved the measure without deliberation.

Outcome: The city council unanimously gave final approval to the AHP revisions.

Traffic Codes

At Monday’s meeting the council considered final approval to a revision of the city’s traffic ordinances. The revision adopts the Michigan Vehicle Code and the Uniform Traffic Code as part of the city’s own code. The council had given initial approval of the ordinance change at its Dec. 6, 2010 meeting, and had undertaken an amendment at its Dec. 20, 2010 meeting clarifying that the adoption of the MVC and the UTC was being made only to the extent that the codes did not conflict with city ordinances and codes.

The adoption of the two codes is motivated by a desire to make sure that the city’s speed limits are legally defensible.

Traffic Code: Public Commentary

Speaking during the public hearing on the ordinance, James Walker encouraged the council to adopt the ordinance change. He expressed concern that some people appeared not to believe that the state rules are designed to produce the smoothest and safest traffic flow. He cautioned that artificially low speed limits decrease safety. He objected to a media quote from Bob West, in the city attorney’s office, that the speed limit on a section of Newport Road could be increase from 25 mph to 30 mph – Walker characterized that increase as a token gesture. Walker also expressed concern about the use of other studies to justify lower speed limits.

Traffic Code: Council Deliberations

Tony Derezinski (Ward 2) proposed amendments to the ordinance to change the effective date from Jan. 1, which was already three days in the past, to Jan. 13. The amendments were approved with no deliberation.

Outcome: The city council unanimously approved the adoption of the Michigan Vehicle Code and the Uniform Traffic Code.

New Fire Fees

Before the council was approval of a new fee schedule for fire suppression plan review and inspection of alarms and sprinklers.

According to the city, the new schedule is a result of moving the responsibility for the plan review and inspections from the fire department to the city’s construction services, in order to achieve compliance with the Stille-DeRossett-Hale Single State Construction Code Act, 1972 (PA 230).

Sandi Smith (Ward 1) wanted to know if the new schedule was more complex that the old one. She received the clarification that in some places it was, but the fee schedule is for the initial inspection only.

Outcome: The city council unanimously approved the new fee schedule for fire inspections.

Footing Drains

On the council agenda was an item to approve a $1,384,350 amendment to the city’s contract with CDM Michigan Inc. for work on the city’s footing drain disconnection (FDD) program. The FDD program was put in place in the early 2000s as a strategy for mitigating against sanitary sewer backups in some residents’ basements during heavy rains. Part of the load on the sanitary sewer system is due to storm water from footing drains that is led into the sanitary system. The aim of the FDD program is to disconnect these footing drains from the sanitary system, because the water does not need treatment and adds needlessly to the volume of water in the sanitary system.

To help fund the FDD program, the city requires that builders of projects adding to the sanitary sewage volume balance out that additional volume by removing the equivalent of 1.2 times their additional volume from elsewhere in the system – through footing drain disconnects.

Recent renovations to the University of Michigan football stadium added to the load on the sanitary sewage system. So the university paid the city for the equivalent of 140 disconnections at $10,040 per disconnection, for a total of $1,405,600. The city is using $1,275,080 of that sum for the current contract amendment and appropriating $109,270 from its capital budget. The balance of the UM money – the equivalent of 13 disconnections – can be used at the city council’s discretion.

Some of the work to be funded by this amendment will be undertaken along Iroquois Place, where several homes had sewage backups during the June 6, 2010 heavy rains.

Outcome: The city council unanimously approved the footing drain funding allocation without deliberation.

Weapons Screening

Before the council was approval of a $187,000 contract with Washtenaw County for weapons screening services for the 15th District Court. When the court relocates to the new city municipal center from the Washtenaw County Courthouse – where the city has previously leased space – it will not be able to take advantage of the weapons screening services provided there. The scheduled date of relocation is Jan. 14.

The amount of the annual contract is based on a $25.25 per hour cost for officers from the Washtenaw County sheriff’s office. Funds for the contract have been budgeted for FY 2011 and will also be included in the court’s FY 2012 budget.

Sabra Briere (Ward 1) emphasized that this was a cost that was appropriately not included in the cost of constructing the municipal center – it related to operations.

Outcome: The city council unanimously approved the weapons screening contract.

Housing Commission Appointment

The council voted on approval of the nomination of Leigh Greden to the Ann Arbor Housing Commission, which had been put before the council by mayor John Hieftje at the council’s previous meeting. Greden replaces Jayne Miller, who previously served as the city’s community services area administrator, before leaving that post in February 2010 to take a position leading the Huron-Clinton Metroparks. Miller had been appointed to the housing commission after leaving her job at the city, in connection with the wholesale replacement of the entire housing commission board in March 2010. Miller’s tenure with the Metroparks was brief, and she subsequently took a job in Minnesota as superintendent of the Minneapolis park system, which began in November 2010, making it impossible for her to continue to serve on the city’s housing commission.

Greden previously served on the city council, representing Ward 3, until he was voted out of office in the 2009 Democratic primary, due in part to voter dissatisfaction with his use of electronic mail during council meetings – for communications that ranged from sophomoric humor to possible violations of the Open Meetings Act and campaign finance laws. After leaving the city council, Greden left his job as an attorney with Miller Canfield to take a position with Eastern Michigan University as that institution’s head of government relations.

Tony Derezinski (Ward 2) said he wanted to applaud Greden’s appointment, saying that it was Greden who had encouraged Derezinski to serve as the city council liaison to the housing commission. Greden, he said, had an abiding interest in housing issues.

Outcome: The city council unanimously approved Greden’s appointment.

Communications and Comment

There are multiple slots on every agenda for city councilmembers and the city administrator to give updates or make announcements about important issues that are coming before the city council. And every meeting typically includes public commentary on subjects not necessarily on the agenda.

Comm/Comm: Fuller Road Station

Sabra Briere (Ward 1) expressed regret that the scheduled work session on the Fuller Road Station late last year had been postponed and hoped that it would be rescheduled soon. She said she’d had conversations about the station with Sandi Smith (Ward 1) and the mayor. City administrator Roger Fraser indicated that there would be a work session on the subject on Monday, Jan. 10.

Comm/Comm: DDA-City

Christopher Taylor (Ward 3) reported that the two mutually beneficial committees from the city and the Ann Arbor Downtown Development Authority – which are currently discussing the parking contract between the city and the DDA, as well as a plan for the DDA to lead development of city-owned downtown surface parking lots – had met on Dec. 27. Taylor reported that the DDA board will be considering a resolution supporting the council’s planned resolution that would set forth a parcel-by-parcel plan for surface-parking-lot development.

Comm/Comm: Mercury

During his communications time, city administrator Roger Fraser reported a recent hazardous materials incident on Dec. 30, 2010, which involved a mercury spill in a resident’s home. The source of the spill was the weight in an old grandfather’s clock. The fire department and the U.S. Environmental Protection Agency were called and followed the national guidelines for any cases where more than two tablespoons of mercury – about a pound – are spilled. Fraser reminded everyone that cleanup of mercury should be left to professionals.

Comm/Comm: Palestine

During public commentary reserved time, Henry Herskovitz spoke on the issue of Palestine. He noted that the printed agenda contained an error – he was recorded as speaking on the issue of medical marijuana. He reminded the council that he’d spoken to them in June 2009 about a peace activist who’d been killed by a tear gas canister in the city of Bi’lin in Palestine – Bassem Abu Rahmah. He held up a photo of himself with Abu Rahmah. The man’s sister, Jawaher Abu Rahmah, Herskovitz reported, had been heavily tear gassed and had died on New Year’s Day. The identity of the person who had killed her, he said, had not been released. He characterized the actions of Israeli military forces as that of “gangsters.” Even when it’s a U.S. citizen who is killed, he said – as was the case when Rachel Corrie of Olympia, Washington was killed by a bulldozer – there is little reaction. He wondered what the reaction would be if North Korea killed a U.S. citizen. The demonstration outside the Beth Israel congregation for the coming Saturday, Herskovitz said, would be an occasion to remember Jawaher.

Present: Stephen Rapundalo, Margie Teall, Sabra Briere, Sandi Smith, Tony Derezinski, Stephen Kunselman, Marcia Higgins, John Hieftje, Christopher Taylor, Carsten Hohnke

Absent: Mike Anglin

Next council meeting: Due to the Jan. 17 Martin Luther King Jr. holiday, the meeting will be held on Tuesday, Jan. 18, 2010 at 7 p.m. in Washtenaw County administration building 220 N. Main St. [confirm date]


  1. By Steve Borgsdorf
    January 6, 2011 at 4:48 pm | permalink

    The second paragraph in “Housing Commission Appointment” seems rather tendentious. Just the facts please.

  2. January 6, 2011 at 6:39 pm | permalink

    Regarding AHP,

    the council, having discussed the proposal at previous meetings,

    And the understatement of the day award goes to…Dave Askins!

  3. January 6, 2011 at 7:18 pm | permalink

    Re (1):Please stay just as you (DA) are. That second paragraph is full of useful history.

  4. January 6, 2011 at 9:38 pm | permalink

    Thank you for your thorough and thoughtful reporting.

    The attorney I quoted is actually Matt Newburg.

    Happy New Year!

  5. January 7, 2011 at 9:45 am | permalink

    The paragraph in question dramatically understates Greden’s role on Council and the benefits to the public upon his departure.

    Greden was scripting a large proportion of what Council did, including writing speeches for other Council members. So the fix was in. Now that he is gone, the fix is no longer in. Council is turning into a real legislative body, not just a rubber stamp for Greden and the staff. Its behavior is impossible to predict.

    This change in behavior is will illustrated by the controversy over medical marijuana. Three times Postema has proposed extremely repressive legislation – the moratorium, the zoning ordinance, and the licensing ordinance. Each time Council has removed most of “Postema’s Poison Pills” on the Council floor. More deletions may be on the way, particularly considering Mayor Hieftje’s comments on felonies.

  6. By Alan Goldsmith
    January 7, 2011 at 10:57 am | permalink

    “Greden previously served on the city council, representing Ward 3, until he was voted out of office in the 2009 Democratic primary, due in part to voter dissatisfaction with his use of electronic mail during council meetings – for communications that ranged from sophomoric humor to possible violations of the Open Meetings Act and campaign finance laws.”

    Welcome back. Lol.

  7. By Rod Johnson
    January 7, 2011 at 11:44 am | permalink

    Ugh, Greden is like a bad penny.

  8. By Steve Borgsdorf
    January 7, 2011 at 4:15 pm | permalink

    In addition to being tendentious, the paragraph is redundant. How else does one get voted out of office in a primary but by voter dissatisfaction? And “useful history” my eye. It would be more helpful to readers who haven’t heard of Leigh Greden (does the Chronicle have any such readers?) to hyperlink them to your thorough coverage of the council email flap. For a reporter to call something, anything, “sophmoric” is a statement of opinion. Just the facts, please.

  9. January 7, 2011 at 6:25 pm | permalink

    Re: [8] “In addition to being tendentious, the paragraph is redundant. How else does one get voted out of office in a primary but by voter dissatisfaction?”


    There are myriad reasons why an incumbent might be voted out of office besides voter dissatisfaction. For example, one can contemplate a scenario in which some voters know nothing of an incumbent’s record, but are impressed enough with what they know of a challenger that they cast a vote for the challenger. One could imagine the possibility, for example, that LuAnne Bullington drew support from voters who may well have known nothing about Greden’s performance in office, or even been pleased with it, but who simply felt that they wanted someone on the council with a stronger voice for the disability community than Greden.

    In the case of Greden’s defeat, however, based on conversations with several people who voted against Greden — not necessarily for either Kunselman or Bullington — it’s clear that he lost at least in part due to voter dissatisfaction, as opposed to a desire to see either Kunselman or Bullington sitting on the council.

    So, even a much shorter sentence would have not been redundant: “… until he was voted out of office in the 2009 Democratic primary, due in part to voter dissatisfaction.”

    That sentence, of course, would have prompted the obvious question: Voter dissatisfaction with what? And the answer to that question is provided with the explanation that the dissatisfaction was related to Greden’s use of email during council meetings.

    I think this clearly refutes any contention that the sentence in question is redundant. An actual example of redundancy would be something along the lines of “Greden was voted out of office when he didn’t receive enough votes to win the election.”

    Regarding “sophomoric humor,” it is a fair and accurate description of some of the subject matter in Greden’s emails, which included the kind of base material that is part of the semantics of “sophomoric” [e.g., Golden Vomit Award]. As such, it is a useful summary of the kind of content Greden’s emails included — which I think was a reasonable choice as an alternative to republishing the content of any of Greden’s emails as a part of this meeting report.

    I also don’t agree with your coarse dismissal of Vivienne Armentrout’s suggestion that there was useful history in the summary in this meeting report.

    As for your suggestion that linking to previous coverage would be helpful, that’s true. You may have noticed that some other readers include links in their comments — something you can also do when you’re feeling helpful — by just pasting the whole URL into the comment, which we then manually convert to an HTML link.

    Here’s a link to an opinion column that probably provides a useful starting point for rummaging through Chronicle archives on the topic of council emails during meetings: “When’s An Open Meeting Open?

  10. By Mark Koroi
    January 7, 2011 at 6:36 pm | permalink

    Regarding the Rachel Corrie killing alluded to by Henry Herskovitz: her family’s wrongful death trial is proceeding in a Haifa court in Israel. Caterpillar Tractor has suspended sales of bulldozers to the Israeli military pending the outcome of the trial. In her hometown of Olympia, Washington, the Olympia Food Co-op has recently enforced a boycott of Israeli products by vote of the board of directors.

    Regarding the Leigh Greden appointment to the Housing Commission: I am glad to see someone has mentioned the possible Michigan Campaign Finance Act violations in addition to the Open Meetings Act violations. What should have been emphasized also that voters reportedly voted against Greden for his support of a proposed city income tax at a time when many Ann Arborites were struggling due to the economic conditions. I wonder if Mr. Greden is considering challenging Steve Kunselman for his former Third Ward seat?

    Leigh and his family have remained active in local campaigns, supporting the primary candidacy of Ned Staebler in 2010 for his State House run. He joins many former City Council members, including Jean Carlberg, Joan Lowenstein, and Wendy Woods who have received board and commission appointments after leaving City Council.

    Greden earns over $133,000 per year in his EMU post, which had been formerly held by Freeman Hendrix.

  11. By junior
    January 8, 2011 at 3:57 pm | permalink

    The re-entry of Leigh Greden into the realm of Ann Arbor municipal government is indeed significant news. He joins his former fellow Miller Canfield colleague Marta Manildi on the Housing Commission.

    Leigh Greden is a true political genius and visionary who shaped Ann Arbor city government during his tenure on City Council. His attempts at introducing a municipal incime tax would have had a profound impact on the city treasury. He was the guiding hand behind the creation of what one former First Ward City Council member termed the “Gang of Seven” and what Vivienne Armentrout later called the “Council Party”. The controversial police/court project was largely spearheaded by Greden.

    What Leigh Greden may have lacked in charisma, he certainly had in political savvy. He attended homeowner’s association meetings and was readily accessible to his constituents. Some considered him the most powerful elected official in Ann Arbor – in large part due to his Council Party affiliation.

    While he did take considerable heat over was has been jocosely referred to as E-mailgate, Greden initially shrugged it off as a manifestation of his mordant sense of humor. Mr. Askins characterization of the content of these e-mails was undoubtedly sophomoric and did cost him votes in the August of 2009 primary.

    Perhaps he is attempting to rebuild his political persona, which took a beating after E-mailgate.

    Greden will no doubt go down as one of the most controversial members of Ann Arbor City Council. The question is will he move forward and learn from his previous shortcomings?

  12. By Steve Borgsdorf
    January 10, 2011 at 4:51 pm | permalink

    Dave, you have jammed 56 words into one sentence including the opinion-laden word “sophomoric.” Those are the facts. I suppose the readers will decide if the sentence is redundant, tendentious, or just plain too wordy.