Possible Moratorium To Delay 413 E. Huron?
According to city council sources, a resolution calling for a moratorium on development in downtown Ann Arbor will be placed on the Feb. 19, 2013 meeting agenda. As of Feb. 14, the item had not yet been added.
Ann Arbor zoning. Darker red areas are zoned D1. Lighter brownish areas are zoned D2.
If the moratorium were enacted – a pause that might last up to a year – it would delay a controversial proposed residential project at 413 E. Huron. During the proposed moratorium, the planning commission would be directed to review the zoning designations for the D1 (downtown core) and D2 (interface), and make recommendations to the city council for possible zoning changes. During the moratorium, projects for D1 and D2 areas that do not already have a planning commission recommendation of approval could not be considered by the city council. The D1 and D2 zoning is relatively young, having been enacted on Nov. 16, 2009 – as the result of the Ann Arbor Discovering Downtown (A2D2) process.
Results of the planning commission’s review of D1 and D2 zoning, according to the Feb. 19 draft resolution, would be due to the city council by the end of August 2013. The maximum length of the moratorium would be a year from the date of enactment. If the council were to change the zoning designation, and if that decision survived any legal challenge, that could ultimately stop the 413 E. Huron project from ever being built.
That project 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.
During extended commentary at the project’s public hearing before the planning commission – on Feb. 5, 2013 and Jan. 15, 2013 – several speakers called for changing the zoning of the parcel from D1 to D2. And more than one speaker addressed the idea that changing the zoning of the parcel now – when the developer is in the process of submitting the project to the city for approval – might give the developer a basis for a legal claim against the city.
In support of their contention that the city would, even at this stage in the process, be on solid legal ground in changing the zoning, speakers cited section 10.7 of the book “Michigan Zoning, Planning and Land Use”: “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.”
The resolution evidently is an attempt to ensure that possible future action by the council to rezone property in the downtown would not target just the 413 E. Huron project. Instead, the idea would be that any changes would stem from a more general evaluation of the city’s downtown zoning.
The 413 E. Huron project failed to get a recommendation of approval from the planning commission – because the 5-3 vote tally on Feb. 5 left it one vote short of the required six-vote majority. [One commissioner, Eric Mahler, was absent.] That 5-3 vote factors crucially in the moratorium that the council will reportedly be asked to consider on Feb. 19. The moratorium would stipulate that the city council won’t consider any future site plans for approval, except those already recommended for approval by the planning commission. So 413 E. Huron would not be eligible for consideration by the city council if the moratorium were enacted.
Another downtown project still needing action by the city council in order to proceed is a residential development at 624 Church St. The moratorium would not apply to the 624 Church St. project – because it received a recommendation of approval from the planning commission on Jan. 15, 2013. That 83,807-square-foot, $17 million project is located next to Pizza House, on the west side of Church between South University and Willard. The building would include 75 apartments with a total of about 175 bedrooms, ranging in size from 490 to 1,100 square feet.
The Ann Arbor city council considered a similar kind of moratorium, a bit more than three years ago, in connection with the City Place apartment project on South Fifth Avenue, which has since been completed. On that occasion, a moratorium was proposed on new development in districts zoned with the classification of R4C (multi-family residential) or R2A (two-family residential).
The intent of that moratorium was to block the construction of the City Place project. But on Aug. 6, 2009, the council voted down the proposed moratorium. The proposal had come from Mike Anglin (Ward 5), who ultimately did not support the final resolution – because it was amended so heavily in the course of council deliberations. It was amended specifically to allow the City Place project to proceed. The only councilmembers who supported the amended moratorium resolution were Stephen Rapundalo, Leigh Greden and Christopher Taylor.
Glossing over several details of the City Place timeline, the council instead opted to appoint a historic district study committee for a two-block area that included the City Place site, and attached a moratorium on the demolition of structures in the study area. The council eventually received a recommendation from the study committee to establish a historic district, but chose not to establish one. Subsequently, the two-building, 144-bedroom City Place project was built.
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I’m sorry, but this is one of the worst ideas that have been floated in recent memory. Someone on council is seriously considering shutting down construction—and therefore the expansion of Ann Arbor’s downtown tax base—for a year or more? Because of ONE building they don’t like?
This development is not a surprise. The property has always allowed for highest downtown density, and could have been built even taller decades ago. If you don’t like how it looks, take your lumps and ask staff how to make buildings better in the future. I’m told it’s not rocket science.
I truly hope likeminded folks reading this will 1) pay very close attention to the council members who vote for this ludicrous resolution, and 2) do everything you can to get them out of office. It will be a crystal clear indication of who wants to move Ann Arbor forward or shut it down.
If the Council is going to follow legal advice offered by Tom Whitaker, does that make him eligible for a vehicle allowance?
The article didn’t say anything about shutting down downtown construction for a year or more. It said a moratorium may “last up to a year”. Nowhere did it say more than a year and there’s nothing to say that it could be less than a year. It also has nothing to do with construction. It has to do with the approval process of proposed development. Projects that have been approved can proceed to construction. If one wants to question the relative merits of this idea, please do so. But your making unsubstantiated claims and fighting strawmen.
Re: [3], I’ll put the question to you: When was the last time the city council did something ahead of schedule? Based on history, I’d say there would be an option for a 6-month extension at the end of that one year.
And your point about construction vs. approvals is specious. If approvals are halted for a year (plus), it would stand to reason that the pipeline of construction would shut down for a year (plus) at some point in the future, correct? Not to mention that this temporary loss of taxes would be minor relative to the collateral damage a moratorium would cause: the renewal of Ann Arbor’s stellar reputation for pulling the rug from under rational actors in the real estate business.
But since we all already have our spiffy homes here, who cares, right? Let all the students keep renting their slumlord fire traps, and we’ll all keep boo-hoo-ing about our shrinking tax base.
The tax base keeps getting brought up. But most of the new taxes would go to the DDA, our unelected shadow government, not to our municipal services like police, fire, and all the functions paid for by dedicated millages that are instead diverted to the DDA. The DDA in turn will use it to promote – more development! They are even talking about developer subsidies again.
So whatever the advantage of downtown development, the tax base is not it.
A growing downtown supports the tax base directly (consult the DDA TIF formula, in addition to its ATM function), but most of all indirectly, by increasing overall desirability to live in the city and supporting property values throughout.
Unless we think the downtown is fine the way it is and shouldn’t grow or support more types of businesses that locals want. Which may be where we differ, and that’s fine.
And this “shadow government” boogyman keeps getting brought up. Honestly, what gives me nightmares is city council being responsible for debating parking structure maintenance vs. funding swimming pools.
“by increasing overall desirability to live in the city and supporting property values throughout. ”
So a tall ugly student tower that shades an entire neighborhood and is a blight on one of our major streets will increase desirability and property values throughout the city?
The item on the moratorium has now been added to the agenda: [link]
The recitation of facts before the language of the resolution is pretty long, but here’s the resolution itself:
[See subsequent revision prior to the meeting, which is posted below.]
Liberalimby, you can speculate to no end about what might happen. But the facts are that the moratorium that is proposed is for a less than a year in length and doesn’t impact any current construction in the areas under study or the approval of projects that fall outside the D1 and D2 districts. This will affect a few projects at most and I have no doubt that whatever the outcome, developers will continue to come to Ann Arbor to build. The hand-wringing may play at the Chamber of Commerce meetings but it is mostly all noise, little substance in your arguments.
Significant contrasts between an early draft resolution and the version that appears on the agenda include:
1. Timeframe for planning commission review and recommendation and council action is sonner: The final version of the resolution specifies June 30 for completion of planning commission work and Aug. 31 for council action.
2. The length of the moratorium (which is effected by deferral of new site plans) is shorter: 180 days from the date the resolution passes [not up to a year as in the draft]. From Feb. 19, counting 180 days gets us to Aug. 18.
3. Vagueness introduced with respect to the status of 413 E. Huron, if the resolution were to pass. It’s not clear (to me, anyway) that the version attached to the agenda would exclude 413 E. Huron from consideration. If it does exclude 413 E. Huron, mightn’t it also exclude 624 Church?
I think it hinges on what the meaning is of “new site plan petition.” A previous draft resolution teased apart 413 E. Huron from 624 Church by appealing to the notion of planning commission’s recommendation of approval: 413 E. Huron has no recommendation of approval; 624 Church has a recommendation of approval. But if “new” means “not yet before the city council” then neither project would be considered for six months. If “new” means “has not been submitted to the city,” then both projects seem like they’d escape the temporary moratorium.
@2: Good one, Jack, but I didn’t speak to a zoning change or moratorium, but merely listed all the ways the proposed building was counter to major elements of the master plan. This alone is grounds for denying a site plan per state law and local ordinance. If planning commissioners thought the proposal met all zoning requirements, well, then one can only conclude that the zoning and master plan are not consistent with each other. Since State law requires the zoning to be based on the master plan, I don’t see how the City has a choice but to call a halt on new projects until they fix that.
As to a car allowance—no need. We moved to one of the historic neighborhoods next to downtown so we could walk most everywhere, just like many of our neighbors, or those who live in Sloan Plaza, or in the Old Fourth Ward area that would be shadowed by this proposed building. Downtown needs permanent residents and owner-occupants as much, if not more than it needs more transient apartments. Hundreds of those have already been built or are approved to be built. The master plan calls for diversity in downtown living, but it seems the only segments currently being catered to are students and the exalted “young professionals.”
Instead of just encouraging more high rises, how about a little balance? Why not a program to encourage owner-occupants to fix up former student rental houses? How about encouraging more housing for families and retirees? Downtown density will have no effect on sprawl unless everyone is welcome to live there. Many of us chose to live the downtown lifestyle before it was hip, but the reward has been to see our neighborhoods dismantled or our quality of life diminished by insensitive projects built in the name of density. Let’s take a time-out and see how we can move forward together.
City planners sometimes create maps that show the downtown population in “day” “night” maps. A dead downtown is one that just has workers and not enough residents to sustain the businesses in the area, which end up being just for the workers.
For Ann Arbor, we need a different map: October vs June. I imagine swaths of empty units during the summer. That’w not real healthy for the downtown.
NYC, Berlin, etc. are irritated by lots of weekend apartments bought by the very wealthy who only use them a few weekends a year. If you live in one of those buildings it must be an odd feeling to be the only occupied unit on a floor.
@11 – Tom, please provide a statutory citation for your statement that “State law requires the zoning to be based on the master plan.” I can’t find it.
While there’s some general language in state law that addresses the relationship of zoning to the master plan, the real concern would be legal. Woe is the community that goes into court on a zoning dispute where the zoning is contrary to the Master Plan.
@13:
MCL Section 125.3203,(1)
MCL Section 125.3501,(5)
Ann Arbor City Code, Title V, Chapter 55, Article III, 5:24.1
Very interesting. Thanks! What happens if a zoning district (or portion thereof) complies with parts of the master plan and violates other parts? Is the zoning district legally invalid?
I consulted a very useful reference, “Michigan Laws Relating to Planning”, 10th edition, from the Planning & Zoning Center and Land Policy Institute at MSU. I noted some of the same items that Tom refers to, and particularly lit on this portion of the site plan section: “other statutorily authorized and properly adopted local unit of government planning documents”. I would argue that those documents include the Master Plan.
The Master Plan has its own section, MCL 125.3807. “The general purpose of a master plan is to guide and accomplish…development that satisfies all the following criteria…” (followed by a long list that closely resembles that in the first section cited above, including “light and air”)
Also, MCL 125.3833 (2)(d)(part of a list describing the parts of a master plan)
“For a local unit of government that has adopted a zoning ordinance, a zoning plan for various zoning districts controlling the height, area, bulk, location, and use of buildings and premises. The zoning plan shall include an explanation of how the land use categories on the future land use map relate to the districts on the zoning map.”
The lines between the Master Plan and the zoning ordinance are rather thin and hard to see, but they are there.
“The lines between the Master Plan and the zoning ordinance are rather thin and hard to see, but they are there.”
If they are “thin and hard to see” in the state law and local ordinances, they’ll be quite clear to a court of law. Courts generally defer to decisions made by municipalities in the area of zoning except when those decisions are contrary to the locally adopted General or Master Plan. Once that happens, the courts will often use that as a reason to strike down that action.
A revised version of the resolution on a moratorium, replacing the original one, was posted to the city’s online Legistar system on the afternoon of Tues. Feb. 19, the day of the council’s meeting. So deliberations will start based on the revised text: