413 E. Huron Highlights A2D2 Concerns

Ann Arbor planning commission meeting (Feb. 5, 2013): The contentious debate about zoning for the north side of East Huron Street – which had appeared to be settled with the 2009 A2D2 (Ann Arbor Discovering Downtown) zoning project – emerged again as the planning commission deliberated the proposed 413 E. Huron development this month.

Following a lengthy discussion and public hearing that drew 33 speakers, commissioners voted 5-3 to recommend approval of the site plan and development agreement for the residential project at the northeast corner of Huron and Division. However, because a recommendation of approval for site plans requires at least six votes, the project will be forwarded to city council with a technical denial.

Voting against the project were Sabra Briere, Ken Clein and Wendy Woods. Voting to recommend the project were Diane Giannola, Bonnie Bona, Tony Derezinski, Kirk Westphal and Eleanore Adenekan. Eric Mahler was absent.

The action at the commission’s Feb. 5 meeting followed an earlier decision on Jan. 15, 2013 to postpone a recommendation, pending input from the Michigan Dept. of Transportation. That meeting also included an extensive public hearing.

The proposal calls for a 14-story, 271,855-square-foot apartment building with 533 bedrooms, marketed primarily to university students. The parcel is zoned D1 – the highest allowable density in the city. The northern edge of the site is adjacent to the Old Fourth Ward Historic District, including historic single-family homes along North Division.

Most speakers during the public hearing were harshly critical of the project, as were most planning commissioners – even those who eventually voted to recommend approval. Diane Giannola, describing herself as a very “design tolerant” person, said that even for her, the building’s design isn’t attractive. Clein, a commissioner who is a principal with Quinn Evans Architects, noted that the building’s design has been dubbed “Death Star Moderne” for its dark, looming style.

Many of the objections related to the design’s insensitivity to the adjacent neighborhood. However, Scott Reed – one of the few speakers who supported the project – argued that if context is an issue, then the context of the surrounding neighborhood should be changed. “Bulldoze it if you have to,” he said. Also supporting the project was Adam Lowenstein – owner of BTB Burrito, Good Time Charley’s and LIVE – who said that downtown business owners welcome the influx of new residents.

Several planning commissioners advocated for starting a review of the A2D2 zoning and of the city’s design review process – echoing the sentiments of several speakers at the public hearing, too. Although the city council had directed such a review to occur one year after the new zoning and design guidelines were approved in 2009, there have been few projects completed during that time and a review has not yet taken place. The planning commission and staff are expected to take up the issue.

At the end of the Feb. 5 meeting, commissioners dealt with another project, voting to postpone action on a proposal to build 19 single-family houses on Hideaway Lane off Traver Road – near the city’s Leslie Park Golf Course. Commissioners were following a staff recommendation that cited the need to resolve several outstanding issues.

413 E. Huron

The main item on the Feb. 5 agenda had initially been postponed by commissioners at their Jan. 15, 2013 meeting – a site plan and development agreement for 413 E. Huron, at the northeast corner of Huron and Division. Staff had recommended the postponement, pending input from the Michigan Dept. of Transportation. Even so, a public hearing at that meeting drew extended commentary, mostly from residents opposed to the 14-story residential project.

Many of those same speakers attended the Feb. 5 meeting, when 33 people addressed the commission.

This time, however, the planning staff recommended approval of the project, having received comments from MDOT. According to a planning staff report, MDOT reviewed the developer’s traffic impact study and agreed that a proposed East Huron driveway could operate as a right-in/right-out-only drive. A plan to make a curbcut onto East Huron will require an MDOT right-of-way permit. Separate from the project, MDOT indicated that a formal left-turn phasing study would be needed to determine whether a dedicated left arrow from westbound Huron onto southbound Fifth Avenue would improve that intersection. If signal changes are needed there, the developer has offered to contribute to the cost. That offer was added to the draft development agreement.

The staff report also noted that a shadow study conducted by the developer had been “inadvertently omitted” from previous meeting packets. The lack of a shadow study had been criticized by speakers during the public hearing on both Jan. 15 and Feb. 5. [.pdf of shadow study for 413 E. Huron]

The planning staff had recommended approval of this project, saying that it met all standards for new development in that part of town. Estimated to cost $45 million, the proposal calls for combining three lots on that corner and building a 14-story, 271,855-square-foot apartment building with 216 units (533 bedrooms) and underground parking for 132 vehicles. [.pdf of aerial map for the project]

The northern edge of the site is adjacent to the Old Fourth Ward Historic District. Existing structures – including a house on North Division that was built in 1901, and a small shop at the corner that most recently housed Papa John’s Pizza – would be demolished.

The first floor would include about 4,000-square-feet for retail space. On the third floor, the building would include a range of facilities for residents, including a gym, yoga studio, business center and outdoor pool. According to a planning staff memo, more than 40% of the apartments would have two bedrooms, with other apartment sizes including one-bedroom units (19%), three-bedroom units (10%) and four-bedroom units (28%). Bike parking and bike lockers would also be provided on site.

Zoning approved by city council as part of the A2D2 zoning project would allow for the type of building being proposed. The site is zoned D1, the highest density allowed. However, nearby residents who oppose the development – including many living along North Division and in the nearby Sloan Plaza – object to its size and massing. The city’s historic district commission also passed a resolution opposing the project. Two HDC members were among the 21 people who spoke at a public hearing on the project at the planning commission’s Jan. 15 meeting, almost all of them opposed to the development.

On Feb. 5, Alexis DiLeo – the city planner who had prepared the staff report – also gave a brief background of the city’s A2D2 project, which had led to the current D1 zoning on this site. In 2003, the city established a downtown residential task force to evaluate strategies for encouraging “smart growth” in the city. The timing was linked to passage of the open space and land preservation millage – a 30-year tax that voters approved in November of 2003 to fund the city’s greenbelt program. The concept was to preserve farmland and natural areas from development in the suburbs surrounding Ann Arbor, while fostering growth within the city.

In 2005, the city council had commissioned Calthorpe Associates to prepare a downtown development strategy. Known as the Calthorpe report, it outlined a range of recommendations to increase residential density while maintaining the city’s character.

In 2006, the council appointed a seven-person downtown zoning advisory committee and a three-person steering committee, which took about a year to make a report on implementing the Calthorpe strategies with recommendations to the city’s zoning ordinance. The Ann Arbor Discovering Downtown (A2D2) steering committee members were city councilmember Marcia Higgins (Ward 4), Evan Pratt of the planning commission, and Roger Hewitt of the Ann Arbor Downtown Development Authority.

In the committee’s report, the 413 E. Huron site was recommended to be zoned as an interface zoning that was intended to act as a buffer between neighborhoods and the downtown core. The interface zoning was eventually called D2. [.jpg of final zoning decision overlaid with committee recommendation]

However, DiLeo said, the first draft of zoning changes that was brought to the planning commission called for the entire north side of East Huron – including the 413 E. Huron property – to be zoned D1, the highest density zoning. At that time just one East Huron character district was proposed. In the following months, the packet of zoning changes and amendments when back and forth between planning commission and city council, DiLeo said, and ultimately two character districts were created – East Huron 1 and East Huron 2.

In 2009, after significant debate, the planning commission agreed to a compromise with the city council: Zoning the East Huron block as D1, but with additional tower setback regulations on the north side (East Huron 1 district). The south side of the street (East Huron 2 district) does not have those same setback requirements.

DiLeo also noted that at the beginning of this process, the proposed zoning drafts included a maximum diagonal dimension requirement, which was intended to make buildings tall and slender. But along the way in the back and forth between council and the planning commission, she said, “that got dropped.”

At the end of 2009, the planning commission and city council adopted the A2D2 zoning package, as well as the downtown plan as an element of the city’s master plan. [.pdf of Ann Arbor downtown plan] For some additional background on these deliberations, see Chronicle coverage from 2009: “Planning Commission Draws Line Differently“; “Zoning 101: Area, Height, Placement“; and “Downtown Planning Process Forges Ahead.”

413 E. Huron: Public Hearing

In a public hearing that lasted nearly two hours, 33 people spoke about the project, most of them opposed to it. About half of the speakers had also addressed commissioners at the Jan. 15, 2013 meeting. At that time, commissioners voted to postpone the project without deliberating on it.

Before the start of the Feb. 5 public hearing, planning commission chair Kirk Westphal reminded participants of the time limits – three minutes for individuals, and five minutes for a representative of the petitioner or for people who represented neighborhood associations that are registered with the city.

What follows is a summary and highlights of the public hearing.

As he did on Jan. 15, Conor McNally, chief development officer for Atlanta-based Carter – the lead firm in this development – started off the public hearing. He said the developers are excited about this project, and believe it will add vibrancy and energy to a very important but underutilized corner of downtown Ann Arbor. The building has been thoughtfully designed to conform with the letter and intent of the city’s D1 zoning, he said, and to incorporate the city’s design guidelines. “Pretty significant” changes were made based on feedback from the city’s design review board, he said, as well from a citizen participation meeting and other meetings with residents. Those changes had increased the project’s cost, he said. McNally pointed out that the site plan had been submitted in November of 2012, and that it met the city’s zoning and all other requirements. The staff concurs with that assessment, he noted. The only outstanding item had been getting comments from MDOT, he concluded, and now those comments have been received.

Christine Crockett identified herself as president of the Old Fourth Ward Association, noting that the association includes the Division Street Historic District and the Ann Street historic block. “This project acutely affects all three historic districts,” she said. She then reviewed comments from the previous public hearing on Jan. 15 “to refresh everyone’s memory,” highlighting the concerns expressed by several other speakers. [.pdf of Crockett's commentary] She said the design fails to incorporate principles of the character area of the historic district. The developer didn’t even know what the designated character area was, Crockett said, and instead “arrogantly” imposed their own definition that included buildings still under construction.

Ilene Tyler, who lives at 126 N. Division – just down the street from the proposed development – said she was there representing the Ann Arbor Preservation Alliance. She began by stating her credentials, saying that she has some extra understanding of what the challenges are, based on her professional experience and career. Among the credentials she cited were her teaching experience at Eastern Michigan University and work at Quinn Evans Architects. She’s a principal of that Ann Arbor firm, and its director of preservation. She said she’s participated in all of the design review processes that led to the creation of the design guidelines and design review board. She also is a former Ann Arbor planning commissioner and former member of the city’s historic district commission.

Regarding the 413 E. Huron project, she showed slides to illustrate the building’s size – larger than The Varsity and 411 Lofts combined – as well as its size in relation to adjacent two-story houses on North Division. Even the adjacent Sloan Plaza at 505 E. Huron would be dwarfed by the project, she said. There are only two “small” elevators on each end of the building, she said, calling it an absurd notion that tenants would bring their bikes up the elevator and park them in bike lockers on each floor. The design does not highlight the building’s entrance, and it’s hard to find. The building juts out and that’s a concern to her. Safety should be a priority, she said, and the project would make that corner unsafe. Tyler also highlighted the “perpetual shade” that would be thrown onto buildings in the residential neighborhood, and noted that the city’s design guidelines say that new projects should minimize shading of adjacent properties. She argued that a lower-density buffer zone is needed to protect the historic residences and the integrity of the historic district. “We deserve more for our city, and we deserve better in this important location.”

Norm Tyler, Ilene Tyler’s husband, told commissioners that he’s a registered architect and certified planner, and that he was representing the downtown design guidelines neighborhood review committee, a group of eight neighborhood and downtown associations. He said he wanted to raise a new issue that hasn’t been previously addressed. When the A2D2 zoning and design guidelines were approved over two years ago, the city council agreed that they’d be reviewed after a year to make necessary changes and improvements, he said. Tyler noted that most of the downtown district is surrounded by D2 zoning or the university. D2 zoning allows for a transition from D1 – the highest density – to the lower-scale residential areas. It makes good sense, he said, and those transition areas are clearly called for in the city’s downtown plan, central area plan, the historic district ordinances, downtown design guidelines, and the Ann Arbor Downtown Development Authority’s Connecting William Street recommendations.

However, some areas – notably the north side of East Huron – are designated D1, he said. The current proposal for 413 E. Huron has made it clear that some areas are zoned in a way that’s not consistent with the city’s master plan. The city should initiate action to bring these parcels into legal conformance, he said. D2 zoning was originally called for along Huron in a 2007 plan, Tyler noted. When that area was later considered for D1 zoning, Tyler said he did a sketch to show what could happen if D1 were allowed – and that’s what did happen, he noted. He cited a passage in the book “Michigan Zoning, Planning and Land Use,” to support his contention that an action by the city of Ann Arbor now to rezone this area to D2 “is clearly within the authority of the city, since current owners of these parcels have as yet no vested rights in their development.” The planning commission shouldn’t recommend site plan approval for any developments on these parcels until the city has reviewed the situation and made zoning consistent with its planning documents. He said the group he represents isn’t opposed to development there, but strongly opposes large-scale development that’s completely out of scale with the residential neighborhood.

Christine Brummer spoke next. She had also sent commissioners an email on behalf of the Old West Side Association. She’s president of that group. [.pdf of Brummer email] She began by referencing page 29 of the 2009 downtown plan, which states that the interface area goal is to “preserve and enhance incremental transitions in land use, density, building scale and height in the Interface areas located between downtown’s neighborhood edges and Core Areas.” She continued reading this section of the downtown plan:

Development within the DDA district, especially in the area which forms the Interface between the intensively developed Core and near-downtown neighborhoods, should reinforce the stability of these residential areas – but without unduly limiting the potential for downtown’s overall growth and continued economic vitality. Ideally, development within this portion of the DDA district should blend smoothly into the neighborhoods at one edge and into the Core at the other.

Brummer also referenced page 33 of the downtown plan, regarding “development character” and a sensitivity to context. The plan includes the goal to “encourage design approaches which minimize the extent to which highrise buildings create negative impacts in terms of scale, shading, and blocking views.” [.pdf of Ann Arbor downtown plan] Further, the city’s central area plan recognizes these potential conflicts in areas where the downtown commercial core meets low-scale residential areas, she said. Brummer quoted from the central area plan:

In various locations, houses are overshadowed by larger commercial, residential or institutional buildings that are out of scale with existing surrounding development. In addition to being aesthetically displeasing, out-of-scale construction alters the quality of living conditions in adjacent structures. Often it is not so much the use that impacts negatively on the neighborhoods, but the massing of the new buildings.

She also pointed to Objective 5 of the plan’s historic preservation goals, which states: “Where new buildings are desirable, the character of historic buildings, neighborhoods and streetscapes should be respectfully considered so that new buildings will complement the historic, architectural and environmental character of the neighborhood.” [.pdf of central area plan]

Benjamin Muth told commissioners that Houston, Texas is a developer’s dream, because there’s no zoning, and you can build whatever you want. That’s why Houston looks the way it does, he said. But Ann Arbor is special because it has downtown design guidelines. [.pdf of design guidelines] Muth referenced section B.1.1. of the guidelines, which calls for designing a building “to minimize its impact on adjacent lower-scale areas.” In addition, section B.1.2. states that “When a new building will be larger than surrounding structures, visually divide it into smaller building modules that provide a sense of scale.” The design guidelines suggest several ways of doing that, he noted. The guidelines also state – in section A.2.2. – that “site designs should accommodate solar access and minimize shading of adjacent properties and neighborhoods.”

Muth concluded by saying that the design guidelines and the draft recommendations for Connecting William Street make it clear that surrounding context should be considered. The proposal at 413 E. Huron may be in serious conflict with these principles.

Steve Kaplan described himself as a layman whose perspective might be helpful amid “a dizzying onslaught of facts and metrics.” It’s possible to lose the forest for the trees, he said. There’s no doubt that this project meets the D1 zoning, Kaplan said, but it’s also clear that D1 zoning for this area was questionable from the beginning. It seems that D2 better meets the needs of this area. If approving projects were just a simple formula – plugging in the requirements – then “we could do it with a computer program,” he said, and there’d be no purpose for the commission or for a public hearing. But the purpose of the commission is to ask whether a project is what the city really wants. Does it address the spirit of the zoning? In this case, the project “casts in high-relief why this [zoning] should be reconsidered.” Density is good, but should be mitigated by the needs of surrounding communities and preserving core historical areas of the city.

Scott Reed said it’s his understanding that the project complies with current zoning, but several other speakers have contemplated whether this is the right zoning for the site. That’s beside the point for this project, he said. He disagreed with the premise that the building doesn’t fit into the surrounding context, but said that if he accepts that premise, “then I would say we should fix the context.” The low-density area should be changed, he said: “Bulldoze it if you have to,” he said. [That comment was met with derisive laughter by many of the project's opponents in the room.] The city needs more density and more vibrancy, Reed continued. This project would create a place worth caring about, he said, in a place where there’s currently blight. It would benefit the whole city, “not just a small, very vocal group of property owners and historical enthusiasts who are very well-organized.” He said it’s hard to take people seriously when they throw around words like “ghettoize” and “student warehouse.” Most people are clamoring for density and mixed-use development, he said. And parking won’t be a problem, Reed added, because when people live downtown, they’ll want to walk everywhere.

Barbara Hall read a statement from the Old West Side Association board. They know what the A2D2 zoning was intended to accomplish, but now they find themselves arguing that the framework for zoning in downtown Ann Arbor has been derailed. That framework allowed Old West Side residents and developers to create the new Y, Ashley Mews, Liberty Lofts, Jefferson Court, and City Apartments by Village Green, she said. “When all parties work together, the system works.” The first project on the Old West Side under the D1/D2 zoning is 618 S. Main, she noted. When first presented with that proposal, residents questioned the D2 zoning. However, there was ample opportunity for comments and questions, and the developer for 618 S. Main made substantial changes. This is how the system is supposed to function, she said.

The contrast between that project and 413 E. Huron “could not be greater,” Hall said. Concerns have been raised at each stage in the process, but have not been resolved. Those include citizen participation, fit within the neighborhood, and impact. The greatest problem is that a voluntary process is only valid with willing participants on all sides, she said. The OWS board is asking that the planning commission consider the project in light of the spirit and letter of zoning provisions, including the new ZORO (zoning ordinance reorganization) draft. Hall also noted that news about the upcoming conference on aging had resonated with her – mentioned by Tony Derezinski at the start of the planning commission’s Feb. 5 meeting – and she wondered why there are so many dormitory projects underway. What could the city do to encourage projects for people who want to retire, enjoy Ann Arbor, and spend money downtown?

Jeff Crockett referred to Steve Kaplan’s comment about being unable to see the forest for the trees. But Crockett said his own comments were to help people focus on the trees, because Ann Arbor is named for the original stand of oak trees in this neighborhood. These oak trees are over 300 years old, he said, and he’s concerned that some of these landmark trees will be affected by this project. He has consulted with Chris Graham, chair of Ann Arbor’s environmental commission and of its natural features subcommittee, and a former planning commissioner. Since 1980, Graham has owned the Oak Arbor Company. He’s an arborist who cares about the city’s natural features, Crockett said.

Crockett gave commissioners a handout showing an historic oak on the property of Ray Detter. [.pdf of Crockett's handout] It’s one of Ann Arbor’s largest bur oaks, Crockett said, with a canopy of about 150 feet and a trunk that’s about 10 feet from the north lot line of the proposed new building. Graham has indicated that this project needs an assessment that shows the impact of natural features both off-site and on-site, Crockett said. This assessment should look at not just the critical root zone, but also the impact of shade, he said. Has this been done for this oak and other natural features that might be affected? he asked. How do you mitigate the loss of something that’s part of this city’s historical identity?

Later in the hearing, Herb Kaufer read the letter from Chris Graham, who could not attend the meeting. [.pdf of Graham's letter]

Adam Lowenstein said he lives on Main Street and owns a couple of restaurants and bars in downtown Ann Arbor. [Lowenstein owns BTB Burrito, Good Time Charley's and LIVE.] He said he shares some viewpoints of people who oppose this project, but wanted to give his perspective as a business owner. A project like this is very welcome, because it brings more people to the downtown, he said. It’s the type of development that supports local businesses like his that make Ann Arbor unique. “This is the type of project that makes us excited,” he said. Lowenstein wanted to emphasize the importance of livability downtown, where you can walk to work, to restaurants, to get groceries. A development like this brings vitality and grows the tax base, allowing the city to keep up its parks and schools. Historic areas need to be protected, but at the same time places are needed for people to live who can support the economy and vibrancy of the city. He said he’s very much in favor of the project.

Ellen Thackery, a southeast Michigan field rep for the Michigan Historic Preservation Network and the National Trust for Historic Preservation, told commissioners she believed the project would affect the quality of life in the nearby historic neighborhoods. These neighborhoods are public assets and contribute to the city in many ways – aesthetically, economically, historically – so they should be preserved. The city also adopted design guidelines so that new development would be compatible with and respectful to its surroundings. The 413 E. Huron project ignores all this, she said. She wondered why the city couldn’t require a redesign of the project. Responding to Lowenstein’s comments, Thackery said she thought there is a way to get the density he desires, but the design needs to be more sensitive. The current project doesn’t do that.

Several residents of Sloan Plaza – an office and residential building located adjacent to the proposed project – spoke against the development. Linda Binkow said she’s originally from Brooklyn, New York, so she’s not uncomfortable with big buildings. But she opposes this development because it’s “way out of proportion for the city.” The construction itself will affect people like her, who have asthma. There have been no efforts to make accommodation for that, she said. “I might have to leave.” There’s great value in density, but not when it destroys the values you have. The planning commission should not thumb its nose at the concerns of people who live nearby. Binkow said she can understand why someone who owns restaurants and bars would be happy to have more students around. But that shouldn’t be the only criteria for development. “We are not housing for the university,” she said. Binkow hoped commissioners would take seriously their responsibility in protecting the city.

Joan French said she’s lived at Sloan Plaza for 16 years. She noted that students basically leave town all summer. The city needs downtown housing for people who’ll live there year-round. French said that she’s been a downtown business owner in the past. She didn’t mind having a building on that side, but she’d like one that she can see out of her window and be proud of, “not one that looks like it belongs in a prison setting.”

Cy Hufano, another Sloan Plaza resident, said he’d been moved to speak because of a previous speaker, and he wondered what the city planned to do about the future of a 300-year-old tree. If this project moves forward and that tree dies, “then what have you contributed to?” Because of some health problems, he’s been trying to understand food. He called up a beekeeper in mid-Michigan who produces most of the raw honey for beekeepers in Michigan. This beekeeper told him that all of her hives died this winter. Einstein said that if the bees die, mankind has four or five years to live, Hufano noted. So he wanted to tell commissioners about that, and to ask them to think about respect. What would it mean to cause the death of a 300-year-old tree? What would it mean if they didn’t take the time to consider the impact, given that this is the city of trees? He wanted commissioners to think about this intangible.

Two other Sloan Plaza residents – Hugh Sonk and Don Duquette – also argued against the project, as they had at the Jan. 15 public hearing. Sonk contended that the development isn’t bringing new people downtown. It’s simply “shuffling” students from other parts of the city. He wondered if the building – because it will jut out and obstruct sight lines along East Huron – will result in lawsuits based on accidents at that intersection. He noted that the developer doesn’t want to make changes because it will impact their concrete pour cycle for the coming construction season – and the city will be stuck with an undesirable building for 100 years. Duquette highlighted the fact that the A2D2 zoning hasn’t yet been reviewed by the city council, as promised. There have been many unintended consequences of zoning that corner parcel as D1. This project is not the right one for this site, he concluded, and there are many legal grounds that the city could use to defend a denial.

Also speaking on behalf of Sloan Plaza residents was attorney Norm Hyman, who had spoken at the Jan. 15 public hearing, too. He again referred commissioners to the points raised in his Dec. 4, 2012 letter. [.pdf of Hyman's letter to the commission] He noted that integral to the discussions about zoning back in 2009 had been the establishment of downtown design standards. It had been clear that the city council had wanted to revisit that design review process after a year or so. Hyman then said he wanted to focus his remarks on the traffic impact study, which he called deficient and not current. It’s also unclear what forecasting methodology was used, he said. Further, he disagreed with the staff’s characterization that MDOT agreed with the traffic study submitted by the developer. MDOT expects a final version that hasn’t yet been completed, he contended. He hoped commissioners would take a hard look at that.

Finally, Hyman noted that Ann Arbor is a magnet for retirees, and many Sloan Plaza residents have been drawn there for that reason. But this 413 E. Huron development is detrimental to that goal. He suggested that the best approach would be to postpone action at this point, to give the council a chance to consider what it wants to do with zoning at that site.

Later in the hearing, Earl Ophoff of Midwestern Consulting, the project’s civil engineer, responded to Norm Hyman’s contention that the traffic study had been done incorrectly. The study had been completed by Jim Valenta of Midwestern Consulting, who had previously been the city of Ann Arbor’s traffic engineer. Valenta had indicated that MDOT’s comments about the left turn at Huron and Fifth has been a recurring issue since the 1980s, and it’s something that the community as a whole is supposed to be evaluating. It’s not a turn that’s being affected by this development, Ophoff said. Regarding the traffic forecasting, Ophoff said it’s a sophisticated computerized model and does include current traffic counts.

Deborah Zahn, a Dexter resident, told commissioners that her family was one of the families that sold the property in that area. Her family sold the lots at 110 N. Division and 401 E. Huron, and had previously owned those parcels for over 70 years. Her grandfather started his real estate business there, and also owned a gas station. The sale of that property was done with the understanding that there would be a high-rise there. Her understanding is that the building design meets the requirements of the city’s master plan. The developer isn’t asking for variances, she noted. The direction that the city is taking to develop Huron Street is very good, Zahn said, and as a long-time resident of the area, she felt this project is good for the area. As previous owners, she said her family supports the project.

Eleanor Pollack, who lives in the Old Fourth Ward, disagreed that the project fits the Huron corridor – at least not in the way envisioned by the 2004 Huron, Division and Fifth corridor study prepared by Pollack Design Associates for the Ann Arbor DDA. That study suggests that buildings need to be “gracious,” with at least a 10-foot setback for new construction so that the corridor would create a feeling of spaciousness for pedestrians, she said. The study also recommended modulating setbacks between 10 and 20 feet to allow for green space and plazas. Building heights should also modulate, in keeping with the existing character of downtown Ann Arbor.

In 2010, new design guidelines talked about new development “stepping down” to meet the character of existing, adjacent neighborhoods. “You’d have to go long and hard to convince me that this project meets the intent of what the citizens of Ann Arbor want out of design,” she said. Pollack said there’s legal standing to delay this project. She read from section 10.7 of the book “Michigan Zoning, Planning and Land Use”:

Landowners do not have a vested interest in the current zoning classification of their land or their neighbors’ land that will remain unchanged. A Michigan landowner does not acquire a vested right to a particular land use until it has made substantial physical improvements to the land, pursuant to a validly issued building permit. This does not include demolition of existing structures on the site. Money spent preparing to construct will not suffice to create a vested right in the current zoning classification. The substantial improvements also must be made under authority of a building permit in order for the owner to acquire a vested interest in the current zoning.

Pollack said that generally, courts have held that wishes of the city are the predominant factor in determining whether rezoning is legally acceptable. “So maybe we need to look at the rezoning of this property,” she concluded.

Mercedes Pascual, who lives on East Ann Street, described a negative domino effect on the community if this project moves forward. The development would cast a shadow directly on properties in the neighborhood. And if that causes those properties to be neglected – which she believes will happen – then that neglect will propagate to the rest of the neighborhood, she said, “all the way to Kerrytown.” It’s sad and ironic that the historic houses that are closest to the development are the most beautiful and best preserved, Pascual said. She noted that she works at the University of Michigan, and like many of her colleagues, she moved to Ann Arbor because of the special character of this city. “I’m not sure that if this type of development continues, I would make the same choice,” she concluded.

Peter Nagourney told commissioners that he was co-chair of the North Burns Park Association. He said he expected the planning commission to discuss what the mayor, city council, DDA and many business people have been saying for years – that Ann Arbor needs to attract new businesses to the downtown, to attract and retain more young professionals, to be friendlier to retired people and empty-nesters who’d love to live within walking distance of the downtown amenities. Everyone agrees that these goals would make Ann Arbor more prosperous.

But there’s a lack of affordable housing options downtown, he noted. Where are the studio, one- and two-bedroom apartments? Instead, the city has seen seven student-only large structures, he said, and the current project adds another 500-plus expensive student bedrooms to what might be an already overbuilt market. The city’s planning staff shouldn’t just be fact-checking for an out-of-town developer who’s only interested in maximizing profits. If this project is approved after overwhelming opposition, “the community may well question what is the purpose of our public input,” Nagourney said. Everyone will wonder why the planning commission didn’t plan for what the city so obviously needs. He urged commissioners to discuss some real planning as they look at the future of the city.

Ron Motsinger spoke on behalf of the Washtenaw County Building Trades Council, which he said represented over 5,700 construction workers and over 100 businesses. He’s lived around Ann Arbor his whole life, and his dad owned a business in town for over 30 years. Every construction project usually displaces someone, he said, and changes the area. He recalled that just a few years ago, city officials were worried about downtown Ann Arbor, because there weren’t enough people coming downtown and businesses were closing. The area needs the business of downtown residents.

Motsinger also reported that the unionized and local construction industry is experiencing over 40% unemployment now. O’Neal Construction is a fine local company, he said, and demands safety and the highest-skilled workforce. [O'Neal Construction is general contractor for the project.] He said O’Neal is happy to use local workers, and this project would mean up to 300 jobs. He noted that the trades council is affiliated with the unions that bring three conferences to Washtenaw County each summer, adding over $15 million to the local economy, he said. Motsinger said he didn’t want to change Ann Arbor negatively, but noted that students have to be housed near the UM campus where they can support local businesses and the community.

Tom Whitaker referred to the Michigan Zoning & Enabling Act of 2006, from which the city derives its authority to establish and enforce its zoning ordinances. He referenced the following section:

125.3501 Submission and approval of site plan; procedures and requirements.
Sec. 501
…
(5) A site plan shall be approved if it contains the information required by the zoning ordinance and is in compliance with the conditions imposed under the zoning ordinance, other statutorily authorized and properly adopted local unit of government planning documents, other applicable ordinances, and state and federal statutes.

Whitaker also cited Ann Arbor city code, as amended in 2011: “The purpose of the zoning ordinance is to provide standards that result in development that’s consistent with the land use principles described in the properly adopted city master plans.” But the proposal for 413 E. Huron is not consistent with the city’s master plans, he contended – specifically, the downtown plan that was adopted in 2009. The downtown plan calls for preserving and enhancing incremental transition and land use, density, building scale and height between downtown neighborhood edges and core areas. This project does none of that, he said. Instead, it would create an abrupt and jarring change from historic two-story houses with yards to a looming structure rising 14 stories straight up from the ground.

While the downtown plan calls for protecting the livability of residentially zoned neighborhoods adjacent to downtown, this proposal would diminish the quality of life for residents in those areas, Whitaker said. Nor would the proposal reinforce the contribution of the nearby historic buildings, as called for in the downtown plan. The proposal is out of scale, heavily shades the properties to the north, and blocks views of the sun and sky. It’s a perfect example of how to violate completely this most critical element of the master plan. He urged commissioners to recommend denial because the development is not in compliance with the master plan. “If built, this building would haunt us all for decades, just as University Towers has haunted us for decades past on South University.”

Ethel Potts said this proposal is putting the D1/D2 zoning to the test. So far, the zoning doesn’t fit the city’s plans, which in general call for low negative impact on existing neighborhoods, stepping down the height when abutting two-story houses, and conforming with existing street setbacks. The new D1/D2 zoning is failing to generate the kinds of projects that the city has described in its planning documents, Potts said. She said that this section of town ended up being zoned D1, over the protests of citizens. Overlay district standards aren’t being enforced, and the design guidelines process was weakened to be optional and can be easily ignored by developers. Potts said she hoped commissioners would address bringing the zoning into conformance with city plans, as well as the need to remap the zoning areas. She asked them to consider the public participation input, and strengthen the design review process.

Susan Friedlaender, an attorney representing the developer, told commissioners that the 1988 downtown plan has a lot of language in it that’s almost indistinguishable from the 2009 plan. There’s a section in the 1988 plan that discusses interface areas, and in particular the area between East Huron and Ann Street. The plan states that in that area, because there is no room for an interface zoning district, a setback can be sufficient as an interface. That’s what informed the planning commission in 2009 to recommend D1 zoning for this East Huron district, and when it imposed regulations like the 150-foot height limit, the tower setback, and the 30-foot rear yard setback. It had been a negotiation with neighbors to reach that point, she said. The city chose D1 zoning because of existing density and tall buildings on East Huron, like Sloan Plaza and Campus Inn. She also noted that these parcels are not in an historic district, and pointed out that only about 40% of the D1 area can actually be developed.

Alice Ralph asked the question: “Is this development for living or for staying?” She described the project as a huge building that’s “a bully at the skyline and at curbside.” It offers bleakness instead of benefit, she said. The planning commission can and should deny approval of this site plan, she said. By emphasizing TIF (tax increment finance) revenue for new downtown development, Ralph continued, “official Ann Arbor” chooses between enhancing quality of life, or maximizing quantity of development opportunities. “That official choice has been coldly codified in zoning ordinance, inconsistent with adopted plans,” she said. Planning staff evaluates proposals for compliance with ordinances, but the planning commission renders judgment on the adequacy of that compliance. It’s the duty of elected and appointed officials to consider a larger picture, she said, and to protect the health, safety and welfare of neighborhoods and those who live in them. “Look for legacy,” she concluded, “and put living first.”

Ben Bushkuhl, who serves on the city’s historic district commission, read aloud a resolution that the HDC passed at its Dec. 13, 2012 meeting. [.pdf of HDC resolution on 413 E. Huron] It was the same resolution that HDC member Ellen Ramsburgh had read aloud at the Jan. 15 public hearing. After reading, Bushkuhl added a personal comment, saying that a lot of people who are involved in historic preservation get excited when there’s construction or renovation that adds vibrancy to the downtown and that increases density. There are some good examples in Ann Arbor and nationally, ones that find ways to balance all needs, he said.

Ray Detter, chair of the downtown citizens advisory council, told commissioners that no project should be considered “by right” until it conforms to the city’s adopted city plans and ordinances, and does not have a major negative impact. This project is not “by right,” he argued, and is a threat to the city. He noted that over two years ago, the design guidelines had been completed in conjunction with the A2D2 zoning process. It had been done in a rush, he said, but the council had promised to revisit those guidelines and make improvements as needed. The DCAC and the design guidelines neighborhood review committee believe that now is the time to make necessary changes.

Detter noted that the city is reviewing its citizen participation ordinance, because it’s not working. The out-of-town developer for 413 E. Huron called the citizen participation meeting, ignored much of what was said, then wrote an inaccurate report, Detter contended. “That must not happen again.” None of the changes in mass or setbacks suggested by the design review board were made, he said, because compliance is voluntary. Guidelines need to be clear and more specific, and the process must have “more teeth.” The planning commission should discuss the guidelines as part of its approval process. He noted that the DDA’s Connecting William Street recommendations cite the importance of surrounding context. That consideration should be required for all development. Finally, Detter said the zoning is clearly wrong for this site: It should be D2, he contended. This isn’t the only area where zoning needs to be cleared up, he added. The surface parking lot on East Ann Street – formerly owned by the Ann Arbor News, now owned by the UM Credit Union – is also zoned D1, which allows for an 18-story building. That’s another mistake, and he hoped the commission would look at these issues.

Doug Kelbaugh, a UM professor of architecture and urban planning who lives at the nearby Armory condos, said he’s been a long-term, outspoken proponent of denser downtown development. He noted that the zoning code clearly indicates the need for a buffer area to avoid “rude adjacencies.” In most areas that buffer exists, but the north side of East Huron is a “glaring and troubling exception.” He urged the city to reconsider the extent of the D1 zone, and limit it to the true downtown core with crisp, well-defined edges: A 15-block area within Division, Huron, First/Ashley, and William. Let’s shape the city more intentionally, he said, and completely surround the core with a buffer zone that gracefully builds up from neighborhoods to a vibrant urban core.

Pat Lennon, an attorney with Honigman who’s in charge of the law firm’s land use and zoning group, was on hand representing the developer. He noted that he’s also chair of the western region of the Urban Land Institute of Michigan. It was interesting to him that the majority of comments at the hearing had focused on rezoning and how it should change. But that’s not the question that must be answered, he said. As the planning staff knows – and as probably the most hostile opponents of the project know – this development complies with the city’s ordinance. It’s a straightforward situation, he said. There had been a long debate about zoning in this area, but the result was D1 zoning, and this project complies with that. A change in the zoning category or standards at this point “would be treading on thin ice,” Lennon said. The project is a great benefit to the community and should be allowed to move forward, and he hoped commissioners would recommend it for approval. Postponing it would be unfair and unnecessary. “To change our rights now …would be something we’d view with great skepticism.”

413 E. Huron: Commission Discussion

Planning commissioners spent nearly two hours deliberating on the 413 E. Huron proposal. Their deliberations covered issues related to traffic, natural features, construction, citizen participation, zoning and design. This report summarizes that discussion and organizes the comments thematically.

413 E. Huron: Commission Discussion – Traffic Study, MDOT

Eleanore Adenekan asked for clarification about the traffic study, which had been questioned during the public hearing. Had it been completed?

Yes, replied city planner Alexis DiLeo. It had been provided to the city and forwarded to MDOT. [.pdf of traffic impact study]

MDOT officials agreed with the study, which indicated that a proposed driveway on East Huron – a right-in/ right-out-only turn – would be acceptable. The development will need a right-of-way permit from MDOT to make the curbcut, because Huron is a state trunkline.

Kirk Westphal later asked for clarification that although MDOT raised other issues, the agency was satisfied with the report as it related specifically to the 413 E. Huron project. DiLeo noted that MDOT’s response had raised several points. The city got a little “tsk, tsk” from MDOT for submitting the data and full report at the same time, she said – because MDOT prefers getting the raw data first.

MDOT’s response also commented on two long-standing issues with the city, DiLeo said. The agency stated that more study is required before MDOT will approve a dedicated left turn arrow from westbound Huron onto southbound Fifth Avenue, she said – that’s something the city has been seeking. And separately, MDOT apparently would recommend installation of a dedicated left turn arrow from westbound Washington onto Division, she noted, but the city isn’t particularly interested in that.

Neither of these issues relate directly to the 413 E. Huron project, DiLeo noted, adding that MDOT is OK with that development.

413 E. Huron: Commission Discussion – Natural Features

Eleanore Adeneken said she appreciated the comments by Cy Hufano about the 300-year-old trees. Years ago she had moved out of New York City because she wanted her children to grow up in a setting with more trees. She wanted to ask about what would happen to those trees in the neighborhood behind the proposed project.

Conor McNally of the development team said there are several landmark trees on neighboring property. What’s required by the city relates to a tree’s critical root zone, and any overlap with the project’s excavation. The building’s basement was redesigned to pull back from the north property line, so that it’s out of the critical root zone of those trees, he said. As for shading impact, McNally said his team talked to several arborists. There are a variety of opinions, but no scientific studies related to that issue exist, he said.

Sabra Briere expressed skepticism, saying that she’d spent just 10 minutes on the Internet to find information about the effect of shade on oaks, hickories, walnuts and other “upper story” trees. The trees need sun to thrive, she said. Briere found it surprising that an accredited arborist couldn’t tell the developers that.

Earl Ophoff of Midwestern Consulting replied that Briere’s observations were accurate, but he reported that there are no studies to show the impact of putting an existing mature tree into shade. When Briere noted that the effect of shade is real, Ophoff agreed, but added that no one really knows what exactly that effect might be.

Wendy Woods pointed out that the commission had received a letter from Chris Graham – chair of the city’s environmental commission, who’s an arborist – that indicates shade will be problematic for these trees. [.pdf of Graham's letter] Woods also wondered what would happen to grass or vegetable gardens in the neighborhood, if there was not enough sun.

Ophoff suggested that commissioners look around at other sites. The University of Michigan’s law quad, for example, includes a “forest” of vegetation, even though it’s heavily shaded. Woods replied that it would be great to have UM’s resources and to be able to replant, but this project will affect existing neighborhoods. The commission needs to find a balance that’s reasonable.

Ophoff noted that it’s an overstatement to imply that the trees will be in shade all the time. Members of the development team walked commissioners through details of the project’s shadow study, conducted by the landscape architecture firm Humphreys & Partners. [.pdf of shadow study for 413 E. Huron]

Bonnie Bona asked the planning staff if there is any requirement to protect trees on adjacent properties. Alexis DiLeo replied that the only requirement relates to a tree’s critical root zone. If those root zones for trees on adjacent properties don’t extend onto the site being developed, then there’s no requirement to mitigate any effect that might occur.

From the staff report:

There are no protected natural features on the site. The one landmark-sized tree on the subject site is in such poor condition that it does not qualify as a protected natural feature. There are three landmark trees on adjacent properties whose critical root zones extend onto the subject site. One of those landmark trees, a 24-inch Black Walnut at 114 North Division Street, will be impacted by the proposed development in more than half of its critical root zone and will be mitigated. Half (six caliper inches) of the required mitigation will be provided on-site and the other half will be made alternatively by providing funds for the management of natural features on public land nearby or for the street tree planting program.

Bona wondered whether the developer had offered to plant appropriate vegetation on the adjoining neighbors’ property, rather than paying the city for plantings elsewhere. No, Ophoff said, adding that it would not count as part of the city’s required mitigation. Bona asked whether the developer would consider doing that, if it counted as mitigation? It would be difficult in this case, Ophoff pointed, because the black walnut tree on the adjacent property contains toxins, which makes planting other kinds of vegetation problematic.

DiLeo also noted that city code requires mitigation to occur in the right-of-way or parkland, not on private property. Planting street trees in that neighborhood might be an option, however.

McNally told commissioners that the developers are open to replacing the smaller trees that are on the property line and that will need to be removed, even though that’s not a city requirement. They’ve talked to the adjacent property owner, and would be open to putting those replacement trees on his property.

Bona suggested the developers “wrap some specificity” into these proposals before taking the project to the city council.

Briere wanted the development agreement to include specific mention of the parks that will benefit from the project’s parks contribution. DiLeo said the agreement will be revised to indicate that Wheeler Park and the Ann Arbor farmers market will be designated to receive the funding from this project.

413 E. Huron: Commission Discussion – Construction

Ken Clein asked several questions related to materials, eliciting the fact that the building facade will use various types of full-depth brick, laid by masons. He speculated that there would likely be lane closings for two or three months along North Division related to the project’s construction.

Conor McNally responded, saying the full logistical plan is not yet in place. Responding to additional queries from Clein, McNally said the developer hopes to start construction in the summer of 2013, and that the project would take about 15 months to complete.

Will Gordon, president of O’Neal Construction, came forward to answer any other questions about the construction process, but Clein indicated that he simply wanted to highlight the impact on the neighborhood. There will be an inconvenience to the community during the process, he said, especially for the surrounding neighborhood.

Clein also asked about how dust control would be handled during construction. DiLeo replied that noise, debris and other construction-related issues are handled by the building department, which is charged with enforcing city ordinances during the construction process.

Clein asked whether dust and debris is allowed to travel off-site. DiLeo indicate that typically the most problems arise when a site requires dirt to be moved or existing buildings to be demolished. New vertical construction typically doesn’t cause problems from blowing dust, she said.

DiLeo’s remark prompted someone from the audience to call out that pouring concrete is “enormously dirty.”

Sabra Briere noted that the project has been complimented for the quality of bricks that are intended to be used. She wanted the building materials to be written into the development agreement, as had been recommended by the design review board. She said she sometimes sees the effect of “value engineering” after a project gets approval, and wanted to guard against that.

Kirk Westphal clarified with staff that specific materials are labeled on the site plan, to which the development plan refers. DiLeo said the staff can make sure that the information on the site plan about building material is very detailed and clear.

413 E. Huron: Commission Discussion – Citizen Participation

Sabra Briere focused some of her comments on the project’s compliance with the city’s citizen participation ordinance. She noted that the information about the process is posted on the city’s website and that the developer would have received a copy of it from city staff. [.pdf of citizen participation ordinance] Referencing the report that the developers had submitted to the city, Briere said she’d tried in vain to find all of the required components. She said she can’t see that they have complied with the ordinance. She noted that she had raised the same concerns at the commission’s Jan. 15, 2013 meeting related to another development – at 624 Church St.

Briere listed several things that she had expected to find in the citizen participation report, including a detailed description of efforts to notify residents about the project’s citizens participation meeting; a copy of all written material provided to people at the meeting; a written statement about the number of notices sent out and the number of people who attended; and a copy of the meeting’s sign-in sheet.

The reason that a sign-in sheet is important is because the developer is supposed to send out a report of the meeting to everyone who attended, she said. She couldn’t tell if they had complied with that requirement. Briere described the report on the citizen participation meeting as “kind of gossipy” and not very helpful, and there was no indication that the developers had responded to comments and concerns raised by residents. She said that upset her, because she relies on this part of the process to assure her that the developer hears what people are saying. [.pdf of 413 E. Huron citizens participation meeting report]

Conor McNally replied that the development team had talked with planning manager Wendy Rampson and city planner Alexis DiLeo about the requirements. He said he had not read the ordinance requirements nor the two-page document outlining Ann Arbor’s public input process. [.pdf of public input document] He said the development team had submitted a roster of meeting attendees to the city’s planning staff, along with a report.

Briere told McNally that the project failed to comply with this ordinance, and that it’s very significant. The ordinance is only effective if it’s used properly, she said.

Rampson noted that the sign-in sheet for the citizens participation meeting is available via eTRAKit, an online document management system. Briere replied that she found eTRAKit impossible to use. She expected the information to be included in the commission’s meeting packet.

Later in the deliberations, Tony Derezinski asked planning staff about the materials from the citizens participation meeting. Wasn’t it just a matter of getting the information into the right hands? he asked.

DiLeo indicated that it might just be a matter of formatting or template style. She believed that all of the required information had been submitted.

413 E. Huron: Commission Discussion – Zoning, A2D2 Review

Kirk Westphal asked the planning staff to provide some history of the previous zoning on that site.

Alexis DiLeo described the pre-A2D2 zoning as fairly typical, and primarily regulated by floor-area ratio (FAR), with standard setbacks and a limit on the total square footage that could be built. [FAR, a measure of density, is the ratio of the square footage of a building divided by the size of the lot. A one-story structure built lot-line-to-lot-line with no setbacks corresponds to an FAR of 100%. A similar structure built two-stories tall would result in an FAR of 200%.]

In some zoning districts there were height limits, DiLeo said, but there were no height limits in the downtown core. In the location of the 413 E. Huron project, the zoning had been C2B and C2A, with no height limits, she said.

Currently, the D1 and D2 zoning regulates the square footage, and FAR is still used. She called the A2D2 zoning a “hybrid ordinance that you probably won’t find anywhere else in the country.” In addition, there are “character districts” and street frontage requirements that start to shape how the square footage on lots can be configured, she said.

In the character district of East Huron 1, where the 413 E. Huron parcel is located, the regulations focus on the rear of the parcels, DiLeo said. The intent was to “frontload” the mass onto the part of the site facing Huron. That was a compromise, she added, and there are no streetwall setbacks on the Huron site.

The height limit in the D1 East Huron 1 district is 150 feet. In most other areas that are zoned D1 – including the East Huron 2 district, on the south side of the street – the height limit is 180 feet.

In response to a query from Westphal, DiLeo said that height limits result in buildings that are typically wider with greater massing, in order to achieve the density that would otherwise be achieved in a taller building.

Bonnie Bona pointed out that she’s the only one on the current planning commission who was also on it from the beginning of the A2D2 zoning process. She served on the committee that struggled with what type of new downtown zoning to recommend. Many of the people who spoke during the public hearing were also part of that process, she noted. She reminded everyone that because the 413 E. Huron project is a site plan, the planning commission is just making a recommendation on it. Even if commissioners turn it down, the project could still be approved by the city council.

With master plans, it’s different, Bona explained. For changes in the master plan, the city council and planning commission have to agree. During the A2D2 process, she recalled, there was disagreement over the zoning of three specific sites, including the one where 413 E. Huron is located. Other sites that were problematic were on South University and next to the Zingerman’s Deli on Kingsley, which had previously been a residentially zoned property. The other general issue that commissioners and the council struggled with was height. [For some additional background on these deliberations, see Chronicle coverage from 2009: "Planning Commission Draws Line Differently"; "Zoning 101: Area, Height, Placement"; and"Downtown Planning Process Forges Ahead."]

Those four topics had been the focus of one long meeting in 2009, Bona recalled, which had lasted four or five hours. All of the issues raised during the current meeting had been brought up then, too. These issues are relevant, “but we made a decision to zone it this way,” she said. The East Huron 1 district was made so that it wouldn’t be treated the same as the other side of Huron. Now, if the commission decides to reconsider zoning on this site, they should also reconsider the zoning on South University. “We went through an incredibly laborious process,” Bona said. “I completely understand the shading concerns. I didn’t want it zoned this way, but I lost that vote. It’s a democratic process between planning commission and council. We spent a lot of time on this site – far more than on any other piece of property in town.”

Bona said she didn’t claim it was a perfect process, and the question now relates to a one-year review of the A2D2 zoning. When the A2D2 was finally approved in late 2009, it happened at about the same time as the national economic crisis hit, she noted, and there were no new projects and therefore nothing to evaluate. It’s not just site plans that are needed, Bona added. The city needs built projects in order to review the outcome of the A2D2 changes.

Planning manager Wendy Rampson noted that the A2D2 zoning review is in the commission’s work program, but no staff resources have been allocated to do it at this point. The other review is for the design guidelines, she said. The design review board has provided a report with some suggested changes to the guidelines and procedures. That report was presented to the city council as a communication at their Feb. 4, 2013 meeting. [.pdf of design review board report] It’s up to the council to decide what to do next, she said.

Rampson reported that since 2009, the 413 E. Huron project will be the fifth site plan for the downtown. Of those five site plans, two have been completed: (1) the Zingerman’s Deli expansion at Kingsley and Detroit (zoned D2); and (2) Zaragon West, a residential project at Thompson and William, with first floor retail (zoned D1). Two other residential projects are not completed: The Varsity on East Washington (zoned D1); and 618 S. Main (zoned D2), which hasn’t yet broken ground. Another major residential project – 624 Church St., zoned D1 – was recommended for approval by the planning commission at its Jan. 15, 2013 meeting but has not yet been considered by the city council.

Bona suggested that commissioners use an upcoming working session to discuss when might be an appropriate time to evaluate the A2D2 zoning. [Subsequently, that item was scheduled for the commission's Feb. 12 working session.]

Bona also said she respectfully disagreed with the public commentary that this project won’t bring new people to live downtown. It will bring students downtown who previously lived at the edges of the city, she contended. One of the huge advantages for the city is that there will be fewer cars coming downtown, she said. Students are the people who are most willing to walk, she noted, so she’s very supportive of more student housing in the downtown area, near campus. Baby boomers who are nearing retirement are more likely to want to drive everywhere.

Bona noted that she’s grateful the university doesn’t build more student housing, because if it did, the city would not get any tax benefit from that. Ann Arbor is lucky to have a university that has decided to support the private property owners in this way, she said.

At the same time, it’s important for commissioners to think about housing for mixed ages. But it’s not the city’s responsibility to determine the exact use of any building, she noted. “It’s hard enough for the developers to figure that out.” It’s not appropriate for the city to control the demographics that buildings might target, although there are ways to encourage certain things, she said. For example, the city could adjust the premiums offered for residential developments based on the size of a unit.

Density is just a tool, Bona concluded. The goal is to have a vibrant downtown, and to make sure there aren’t cars “overrunning us everywhere” – not just because of pollution, but also for public health. “Density gets us there,” she said, “but density isn’t the goal.”

Tony Derezinski noted that the planning staff has recommended approval of the 413 E. Huron site plan. He read the rationale provided by staff, that the project “would comply with all applicable state, local, and federal law, ordinances, standards and regulations; and the development would not cause a public or private nuisance, limits the disturbance of natural features to the minimum necessary to allow a reasonable use of the land, and would not have a detrimental effect on the public health, safety or welfare.”

He clarified with DiLeo that the city attorney’s staff had been involved in the process and had reviewed all relevant materials. He noted that it was assumed by people speaking at the public hearing that the project met the D1 requirements. The arguments are that D1 is improper, he said. But that decision to zone the parcel as D1 was made in a “long and querulous process” and a legislative decision was made by council, he noted. [Derezinski served on council at the time.] If you eliminate that question, then the only other question is whether the city’s process has been followed, he said.

If the project meets the D1 requirements, what latitude does the planning commission have? Derezinski asked. DiLeo replied that the planning staff has recommended approval. Beyond that, the commission could consult with Kevin McDonald of the city attorney’s office, she said.

Wendy Woods teased Bona, thanking her for taking credit for “this whole big mess.” [Woods was also a member of the planning commission when the A2D2 zoning was approved.] Part of the dilemma for Woods is that if the process were just a recipe, “then my question is why are we here?” She thanked the public for coming and taking the time to weigh in, saying that they had reminded her of some things she’d forgotten. People talk about livability and quality of life, and one of the thoughts that kept occurring to her is “maybe we made a mistake before.” Perhaps the commission and city council should have spent more time thinking about the transition neighborhoods.

Alluding to Derezinski’s comments, Woods said that when people mention the city attorney, the implication is that the project should be approved or the city will get sued. But the decision is important, she said, because if you live in the area, you walk past these places, you walk down Huron and take your grandchildren to Kerrytown. Woods said she needs to be able to live with herself if the 300-year-old tree doesn’t survive and her granddaughter asks her “What did you do about that?”

Woods said she knows the staff put a lot of work into this and that when she votes against it, she’s not saying that she’s smarter than them or that she’s scared of the city attorney. It means she has to live with her decision. “Too often, those of us who have the possibility of speaking out are reluctant to say, ‘Man, we blew it that time – we made a mistake.’” She said she couldn’t support this project.

Kirk Westphal agreed with Bona’s remarks. He said that although it’s impossible to zone every parcel individually, this parcel came pretty close to being specifically zoned. It would be remiss to disregard the public process that went into zoning this section of Huron, he said. At the time the zoning was approved, he had taken comfort in the design guidelines and design review committee to give the city the ability to shape projects more finely than the D1/D2 zoning would allow. [Westphal also served on the planning commission in 2009, when A2D2 was approved.] He’d been involved in that process and had felt optimistic about it. There are always things that can be tweaked, he concluded, but it’s tough to disregard the public input and process that created this zoning in the first place.

Ken Clein said he shared Westphal’s sentiments, and he thanked everyone who’d spoken during the public hearing. He was empathetic to the majority of speakers’ view that the project is insensitive to the adjacent neighborhood, especially the historic area. The parcel should probably have been zoned D2, he said, though he wasn’t blaming anyone for that decision. However, the project appears to meet the current ordinances and there are other precedents about what can be done in a location as sensitive as this one.

Diane Giannola described the A2D2 outcome as a “well-thought-out compromise” that had been argued over “ad nauseam.” The planning commission should live by the zoning that was imposed on this parcel, she said, and let council change it if they want. “I don’t think it’s our place to do that.”

Briere responded, saying of course it’s a good thing to admit a mistake. It’s also good to listen to the reason of law. But this wasn’t just a council decision, she said. “Decisions about zoning are made by the planning commission.” Regarding A2D2, councilmembers had made some recommended changes, said Briere, who represents Ward 1 on the council. The planning commission accepted some and rejected others. The night that the D1/D2 plan came back to the council, councilmembers had discussed the fact that they could bounce the decision back and forth between the council and planning commission forever “and see who breaks first,” or they could accept what the planning commission decided as the right zoning. “So it’s really our responsibility, and not the council’s responsibility to deal with issues of zoning,” she said.

That said, Briere felt that the current discussion about zoning was “a wonderful distractant, but it’s not the point. The point is whether the bare minimum was met, and whether the bare minimum is good enough for Ann Arbor.”

413 E. Huron: Commission Discussion – Design

Kirk Westphal noted that the issue of design guidelines had been raised during the public hearing, and he asked the planning staff to speak about the process and what’s legally required.

Alexis DiLeo replied that the project must go before the design review board, which provides a report on the project in relation to the city’s design guidelines. The petitioner is not required to provide a written response, although that is requested. Nor is there a requirement to make any design changes in response to the board’s report. The petitioner doesn’t have to take any advice that the city staff or design review board offers, DiLeo said.

Diane Giannola directed her main comments toward the project’s design, noting that commissioners can’t consider design factors when weighing their decision. She described herself as a very “design tolerant” person – in general, mass and height usually don’t bother her. She said she can only think of two buildings constructed in Ann Arbor over the last 20 years that she didn’t like. But something about this building “rubs me the wrong way,” Giannola said. And if someone like her finds a problem with it, then perhaps the design will affect the owner’s ability to rent apartments there. It might reflect some kind of inherent design flaw, she said. It seems like the kind of building that’s more appropriate for a large city. If the project moves forward, Giannola said, she strongly suggested that the design be altered so that it fit the character of Ann Arbor.

Sabra Briere pointed out that the design guidelines are there to express community values, not to be ignored. She noted that she and Giannola might not agree on what the ugliest buildings are, but they might agree that this could be one of the ugliest. It doesn’t follow the design guidelines. The guidelines are not mandatory, but they’re certainly recommended, Briere said. They were put in place to encourage creative problem-solving, not to end up with piled-up Lego blocks.

She noted that the commission had spent a lot of community effort to come up with the downtown plan in 2009 and the design guidelines in 2011. Those are master planning documents that go hand-in-hand in many ways with the actual zoning, she said. One of the problems with master planning documents is that they’re not prescriptive or even proscriptive, she said – saying in many ways, they’re “diagnostic.” The documents aren’t very tight, but they’re community statements that the community worked quite hard on.

Briere read from the downtown plan:

New downtown development will be encouraged; but at the same time, existing assets and valued downtown characteristics will be conserved and strengthened. This balance between conservation and change will be fostered by emphasizing the use of incentives and guidelines.

For 413 E. Huron, the developer definitely benefited from the incentives, she said, “but not so much from the guidelines,” and that’s a shame, she said.

She then read the downtown plan’s goal for achieving a sensitivity of context:

Encourage articulation in the massing of larger new buildings to fit sensitively into the existing development context. Encourage design approaches which minimize the extent to which highrise buildings create negative impacts in terms of scale, shading, and blocking views.

It’s just a fact that if you live next to a high-rise and someone builds a high-rise next to you, you’ll have a blocked view, she said. But if you live in a single-family home, you don’t expect to spend your middays or your mornings in the shade. “It’s not an anticipated consequence of designs which are articulated to fit sensitively into the existing environment.”

Briere also pointed to the following section of the downtown plan:

The most fundamental recommendations for the design of new downtown buildings are to (1) complement the scale and character of the existing development context; (2) reinforce the clarity of the overall urban form; and (3) add to the area’s identity as a special place.

Directing her comments to the development team, Briere said that in so many ways “I don’t believe you hit the mark.” She said she’d prefer to send the developer back to redraw the site plan, working with the design guidelines, rather than to look at the zoning. “The zoning is only a piece of it,” she said. “Our disappointment is not about density.”

The project tests the bounds of the city’s good intentions in terms of opening up development, Briere said. This is art, she concluded, “and the inspiration is lacking.”

Ken Clein, an architect, said he has a fairly open mind. He finds the dark tone-on-tone of the exterior intriguing, but given the size of the building, it will appear dark, massive and looming. He’d heard it described as “Death Star Moderne.”

While he appreciated that some modest changes were made in response to suggestions by the design review board, clearly it does not meet the intent or suggested requirements of the design guidelines. That’s a shortcoming of the development team as well as the city’s own ordinance, he said. Clein was in favor of revisiting issues related to D1/D2 zoning as well as the design review process, at a future commission working session. One possibility would be to revisit the diagonal massing approach, which probably would have addressed issues related to the 413 E. Huron project, he said.

Clein expressed misgivings about the project. “As a design professional, I have serious concerns that this is not the right project for that site, despite what the zoning says.”

Outcome: The commission voted 5-3 to recommend approval of the site plan and development agreement, with dissent from Sabra Briere, Ken Clein and Wendy Woods. Voting to recommend the project were Diane Giannola, Bonnie Bona, Tony Derezinski, Kirk Westphal and Eleanore Adenekan. Eric Mahler was absent.

413 E. Huron: Approval or Denial?

There was some initial confusion about the outcome. At the meeting, chair Kirk Westphal clarified with planning manager Wendy Rampson that the five votes were sufficient for approval, and he declared that the motion had passed. However, the following day Rampson confirmed that the project did need six votes for approval. Because it fell short of achieving those votes, the project will receive a recommendation of denial. From the planning commission’s bylaws [emphasis added]:

Petitions pertaining to zoning changes, annexations, area plans, site plans, street vacations, and other related matters shall … require the affirmative vote of six (6) commissioners for approval and scheduling for Council action. Lacking six (6) affirmative votes, a denial recommendation is recorded. The petitioner may choose to schedule the item for City Council consideration.

The project can now be forwarded to the city council for consideration, but without a formal recommendation from the planning commission for approval.

Hideaway Lane

It was just after 11 p.m. by the time commissioners reached the agenda item for another residential project – a proposal to build 19 single-family houses on a 4.6-acre site on Hideaway Lane off Traver Road, near the city’s Leslie Park Golf Course.

The commission’s bylaws state that in order to consider any item that’s brought up after 11 p.m., a vote must be taken to extend the meeting. There was some discussion about whether it was worth extending the meeting, since planning staff had recommended postponing this item anyway. Some commissioners noted that a representative of the project had waited through the four hours of commentary and deliberations on the 413 E. Huron project – so as a courtesy, the item should be addressed.

Outcome on extending the meeting: On a 7-1 vote, commissioners agreed to extend the meeting past 11 p.m., with dissent from Sabra Briere.

City planner Alexis DiLeo gave the staff report. The project is located on the site of a development that began in 2005 but was never completed – and the site plan for that earlier development has now expired.

Currently, there are nine townhomes and one single-family home on the property, as well as infrastructure for additional development. The site is zoned R4A (multi-family dwelling district). The proposed new homes would all be two stories with either two or three bedrooms. The planned project proposal calls for spacing the houses 10 feet apart. Because the city’s zoning ordinance requires a minimum building spacing of 20 feet, the spacing modifications allowed under a planned project are being requested.

Outstanding issues include determining the project’s impact on the property’s natural feature and mitigation requirements. Traver Creek runs along the site’s western border. Also needed is preliminary approval from the Washtenaw County Water Resources Commissioner.

The developer is listed as Trowbridge Homes of Hideaway LLC of Auburn Hills, Mich.

DiLeo concluded her report by saying that there are a lot of details to be worked out on this project, and the staff recommended postponement.

A public hearing was opened for the project, but no one spoke.

Hideway Lane: Commission Discussion

Tony Derezinski moved to postpone, based on the staff recommendation. Eleanore Adenekan asked when the project would be brought back for consideration. Planning manager Wendy Rampson did not give a specific date, saying that it would be back on the commission’s agenda after the staff had sufficient information and all of the outstanding issues are addressed.

Outcome: The vote to postpone was 5-3, with dissent from Bonnie Bona, Kirk Westphal and Diane Giannola.

Present: Eleanore Adenekan, Bonnie Bona, Sabra Briere, Ken Clein, Tony Derezinski, Diane Giannola, Kirk Westphal, Wendy Woods.

Absent: Eric Mahler.

Next regular meeting: Thursday, Feb. 21, 2013 at 7 p.m. in the second-floor council chambers at city hall, 301 E. Huron St., Ann Arbor. The meeting will be held on Thursday to accommodate a schedule change by the city council, which will be meeting on Tuesday, Feb. 19 due to the President’s Day holiday on Monday. [Check Chronicle event listings to confirm date]

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