Column: Dear Historic District Commission

Dear members of the Ann Arbor Historic District Commission,

On behalf of The Ann Arbor Chronicle, I’m writing to encourage to you to take a specific step to help guarantee future public access to all of your meetings. This step would serve to make sure the deliberations and decisions of the HDC are fully open, transparent, and documentable by third parties like The Chronicle – as part of the independent public record of our city’s governance.

What prompts us to write is a recent occasion when HDC deliberations on an important decision, and the vote itself, were inadvertently shielded from public view.

The decision related to the Glen Ann Place project, located in the city’s Old Fourth Ward historic district. In 2007, the developer of the project and the city signed a consent agreement, in order to settle a lawsuit that had been filed against the city, when the HDC declined to give Glen Ann Place its approval.

On Nov. 30, 2010, the HDC convened a special meeting to consider extending the agreement. The Chronicle was aware that the special meeting would be taking place, pending the scheduling of a time when all HDC members could attend. And we had taken measures to ensure that we would be notified of the special meeting’s scheduling – some of those options are outlined in a recent column by AnnArbor.com’s lead blogger, Ed Vielmetti.

But despite our best active efforts, we did not find out about the special meeting time until after it had taken place. The outcome, we later learned, was a 5-2 vote in favor of the extension. We were not able to find out about the scheduled meeting time, because the city did not follow its own policies and procedures that are in place to ensure public access to meetings, and to ensure compliance with the Michigan Open Meetings Act (OMA). The conclusion of our analysis is that the failure of the city to conform to its noticing requirements impaired the public’s rights under the act.

Of course, a court might not agree with us. Indeed, we’ve had recent experience challenging – with no success, at least initially – what we believe is a separate OMA violation, by the Ann Arbor city council. But on Wednesday last week, Judge Melinda Morris ruled that even though we had stated a claim, there was insufficient evidence filed in our initial complaint even to warrant further collection of evidence.

The situation with the Glen Ann Place special meeting does not have the same ramifications as the city council case that prompted our lawsuit, which we think likely involves problematic patterns and practice. The Glen Ann special meeting situation was clearly that – special and likely unique.

But in this case, we believe the HDC has the opportunity to undertake voluntarily a specific initiative that could serve as a model of openness and transparency for other boards and commissions of the city.

Background: Glen Ann Place Project

Glen Ann Place was a planned unit development (PUD) approved by the council in July 2005, but it did not win subsequent approval from the city’s historic district commission. The developer, Joseph Freed and Associates LLC, then filed suit against the city, the outcome of which was a consent judgment.

Per the 2007 consent agreement, the height of the building was reduced from 10 to 9 stories. Glen Ann Place is planned to include retail and office uses on its first two floors, with residential on upper stories.

The consent agreement was due to expire on Nov. 30, 2010.

Background: Consent Extension

HDC members will recall that it was not just the HDC that needed to approve the extension of the Glen Ann Place consent agreement. Approval was required also from the city council. On Oct. 4, 2010 the city council postponed its Glen Ann Place decision on its first consideration. But the council ultimately approved the extension of the consent agreement at its Oct. 18, 2010 meeting

Between the two October meetings of the city council, the HDC considered the consent agreement extension for the first time – on Oct. 16. At that meeting, the commission engaged in some deliberations on Glen Ann Place, but decided to postpone voting, in order to find a time when all of its members could be present for the deliberations. Two of the seven members were absent from the Oct. 16 meeting.

The idea behind scheduling the vote to take place at a special meeting, instead of at the regular November meeting of the HDC, was that some commissioners at the Oct. 16 meeting had indicated they wouldn’t be able to attend the regular November meeting. The Glen Ann Place decision was felt to be important enough to schedule the vote at a special time, to ensure that all seven commissioners could participate in the deliberations.

But the desire to make sure that all seven commissioners could be present for the vote wound up unintentionally shielding the vote and its deliberations from public view.

How Ann Arbor’s Noticing Works

When a special meeting of any commission like the HDC is called, the city of Ann Arbor must meet the legal requirements in the OMA that the public be properly notified. The requirement is minimal – to post a piece of paper with the meeting information in the city hall lobby. But the city of Ann Arbor has policies in place to ensure that this minimal notification is amplified.

Here’s how it works. By city policy, the location in the city hall that’s deemed appropriate to meet the OMA statutory posting requirement is a locked glass display case, sectioned off with labels for various city boards and commissions.

Who has the key? The city clerk’s office.

This means that in order to meet the legal requirement to notify the public of a special meeting, the staff member responsible for posting the meeting notice must contact the city clerk’s office. The city clerk’s office, once notified, has the responsibility to deploy a variety of electronic communications tools – email and the city’s website – that expand the impact of the glass display case.

It’s actually a clever arrangement that marries old and new technology. The legal requirement is met by posting in the glass case. But posting in the glass case triggers the full force of the city’s electronic communications apparatus.

How Noticing Can Fail

If the meeting notice is not posted in the glass display case, then the city clerk’s office will not be made aware of the meeting. And the meeting won’t be posted on the city’s website. Nor will notice of the meeting be emailed to people who’ve requested they be notified.

That’s what happened for the Nov. 30, 2010 special meeting of the HDC. No meeting notice was posted in the glass case. Instead, the notice was posted on an unlabeled tack strip located a considerable distance away.

So there was clearly an intent to post a notice of the meeting. From what we understand, it was a newly trained city staff member who chose the tack strip instead of the glass display case as the posting location. But by city policy, the tack strip is not an appropriate location to post meeting notices for city boards and commissions. It’s intended for use by the general public.

The Chronicle has made a written request of the city as allowed by the OMA statute to receive emailed notices of meetings. But as a consequence of the city’s failure to follow its own glass-case policy for meeting the legal posting requirement, The Chronicle was not emailed a notice of the meeting. I even took the extra step of asking one of the HDC members to send me an email when the special meeting time had been scheduled – but he forgot.

Impact of Failure to Notice

The failure to properly notice the Nov. 30 special meeting may not seem like such a big deal. There’s no assurance that anyone from the public would have shown up. Most of the public likely does not care what the HDC does, even though the commission routinely makes decisions that have a material impact on the built fabric of our community.

But even if members of the public might not have cared enough to attend the special meeting, The Chronicle did care. It’s The Chronicle’s role to witness and record, from the perspective of a third-party, as many small and large decisions as possible that are being made in the various halls of our local government. It’s what our voluntary subscribers are buying for themselves and the rest of the community with their contributions.

We believe it’s important to our community that The Chronicle has maintained a record of the discussions and decisions that shape what Ann Arbor is. The controversy that forms the background of the Glen Ann project was important enough that the HDC scheduled a special meeting so that all commissioners could be present. The Chronicle thought it was important enough that I wrote an extra email to a commissioner to make doubly sure we were notified. But the end result was that we could not perform our function as a journal of record, due to the failure of the city to properly notify us.

Even though the failure was inadvertent and unintentional – and the result of a special situation – it still had a negative impact. We think the situation needs to be rectified.

Action Step

What can you, as members of the HDC, do to rectify this situation? Ideally, The Chronicle would like to have you agree to meet again to deliberate and take the vote on Glen Ann Place.

However, nearly two months have elapsed since the vote took place, and one commissioner has been replaced in that time. There would likely be little change in the outcome of the vote. And the city attorney’s office would likely advise you against it. What’s more, we’ve already asked you to do that, and the city administrator has declined on your behalf.

So what we’d really like to focus on are some steps that members of the HDC could undertake that are not contingent on getting advice or approval from the city attorney’s office, the city administrator, or the city council.

This is a step that would demonstrate that HDC members themselves take responsibility for making sure their meetings are noticed to the public. We’d like to ask the HDC to consider and pass some form of the following resolution:

Whereas, the city of Ann Arbor’s historic district commission is committed to taking responsibility to ensure that all of its meetings are fully accessible to the public,

Resolved, that the HDC chair shall include at the start of each meeting a recitation of the meeting notifications that the chair has personally verified to be in place for that meeting.

Had the Nov. 30, 2010 meeting been properly noticed, the chair might have said something like this:

I have verified that this special meeting has been noticed to the public by posting the meeting information in the glass display case in the city hall lobby, by entering it into the city’s Legistar website calendar, and that emails have been sent to all those who’ve requested them.

For a regular meeting, the language would be similar. The HDC chair would simply make a two-minute routine out of checking the city’s Legistar system to confirm the meeting is listed there with an attached agenda, and of visually checking the glass display case on the way to the meeting  that, yes, the regular meeting schedule for the year is still posted there.

While The Chronicle has written reports about some HDC meetings in the past, the commission is not currently a part of our routine coverage. But I would look forward to covering a meeting when the HDC passes that resolution. Could someone please tell me when it’s happening?

Sincerely,

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Dave Askins

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Editor’s note: For readers who would like to encourage HDC members to act on The Chronicle’s request, we’d suggest transmitting that encouragement through your city council representative. To send an email to all city councilmembers, including the mayor, use this link, which will automatically launch your email program: Send email to Ann Arbor city councilmembers.