City Council Sets Up for 413 E. Huron

Controversial apartment project, other items postponed until May 13 meeting; DDA ordinance change pushed back until September

Ann Arbor city council meeting (May 6, 2013 – May 6 session): Although the council did not take final action on many agenda items, it did complete eight public hearings and postponed some significant questions – before deciding to recess the meeting for a week. When the same meeting resumes on May 13, the first item to be confronted by the council is the site plan approval for the 413 E. Huron apartment project.

Fourth Avenue between Huron and Washington streets.

Recess of the Ann Arbor city council’s May 6 meeting around 11:30 p.m.  – after eight public hearings and action on a few business items – paved the way for the council to resume the same meeting on May 13, with the 413 E. Huron project as the first item to be considered at that time. This photo shows Fourth Avenue between Huron and Washington streets, which will be repaired in the summer of 2013 as the result of a contract approved at the council’s May 6 session. (Photos by the writer.)

The council decided to suspend the proceedings around 11:30 p.m. – a different strategy than the one taken at the council’s April 15 meeting. On that occasion, councilmembers let the meeting continue until about 3 a.m. before deciding to end the session, postponing all remaining items until the next regular meeting on May 6.

At its May 6 meeting, the council voted unanimously to postpone until Sept. 3 one of the most controversial items on the agenda – revisions to the ordinance governing the Ann Arbor Downtown Development Authority. The most significant revision would clarify language from the original 1982 ordinance, which caps tax increment finance (TIF) revenue to the DDA. The clarifications would not allow for the kind of interpretation the DDA has given the ordinance for the last two years, which has resulted in no return of excess TIF to jurisdictions that have their taxes captured by the DDA.

Stephen Kunselman (Ward 3) led off communications time early in the meeting by describing some further changes he was prepared to make to the DDA ordinance – which would earmark money to support affordable housing. During the public hearing on the ordinance changes, the council heard from speakers on both sides, including five members of the DDA board. A highlight was the apparent initial indication of a slightly moderated position by some opponents of the ordinance changes. The council’s relatively brief deliberations on postponement revealed only grudging support from some councilmembers for putting off the vote for four months. Margie Teall (Ward 4) and Christopher Taylor (Ward 3) made clear they did not support the proposed changes to the ordinance.

The council also postponed action on a revision to the city’s sign ordinance, which would allow only certain types of digital signs. The ordinance amendments would cap the total number of billboards in the city at 28 and allow them to remain in place as non-conforming signs. It would not allow for retrofitting any existing billboards with digital technology. The council has already given the ordinance initial approval, and will take up the issue again on June 17.

Another item postponed by the council was consideration of a video privacy ordinance, which has not yet been given initial approval. That will come back to the council’s May 20 meeting.

Receiving approval from the council was the site plan for Summit Townhomes, located on Ellsworth Road. The project has been working through the city’s review and approval process for more than a year.

The downtown section of Fourth Avenue was somewhat of a geographic highlight for the May 6 meeting. The council approved a $741,900 contract with E.T. MacKenzie Co. to make improvements on Fourth Avenue between Huron and Liberty streets this summer. And the council formally withdrew its objection to renewal of the liquor license for The Arena, a bar located at Washington and Fourth. The Arena finally paid back taxes, which led to the council’s vote – but not without complaint from some councilmembers.

Another highlight of the meeting was the general topic of appointments to city boards and commissions. A brief discussion of how appointments work was prompted by the observation during public commentary that none of the appointments are current for members of the downtown citizens advisory council. The city council put off voting to confirm Stephanie Buttrey’s appointment to the greenbelt advisory commission. And not reached on the agenda were nominations to replace Jesse Bernstein on the board of the Ann Arbor Transportation Authority and Eric Mahler on the city planning commission – with Susan Baskett and Paras Parekh, respectively.

413 E. Huron Site Plan

The site plan for 413 E. Huron – a proposed 14-story, 216-apartment building at the northeast corner of Huron and Division streets – was a major item on the council’s May 6 agenda.

413 E. Huron project. Left is the original rendering considered by the planning commission. Right is an updated version presented to the city council on March 18, 2013

Images for the proposed 413 E. Huron project, at the northeast corner of Huron and Division. On the left is an early rendering provided by the developer. On the right is an updated version presented to the city council on March 18, 2013.

The apartment complex was presented to the council as a “by right” project, which means that in the judgment of the city planning staff, it met all the zoning requirements.

The council had previously postponed a site plan decision on April 15, 2013, April 1, 2013 and March 18, 2013.

The planning commission had considered the project at its Feb. 5, 2013 and Jan. 15, 2013 meetings. The Feb 5 vote of 5-3 on the planning commission – with one commissioner absent – left the project one vote short of the six-vote majority it needed for a recommendation of approval.

On May 6, the council heard from 31 people during a continuation of the project’s public hearing, as well as from others during regular public commentary. This report organizes the commentary thematically.

413 E. Huron Site Plan: Development Process

During communications time at the start of the meeting, Mike Anglin (Ward 5) mentioned a proposed project on Glendale as a good model for proceeding in the future. If a developer meets with staff continually, the surrounding community might not be heard if residents don’t have a lot of expertise, he said. The city should provide representation for the community, Anglin said. He stated that citizens should not be asked to do all the work. Staff and councilmembers should be helping neighborhoods – as allies, not in an adversarial relationship. Public hearings are fine but they’re always too late, Anglin said.

Christine Brummer described the site plan approval process in Ann Arbor in years past as a meeting between the developer’s budget, the planning department’s vision and citizen complaints in front of the city council. She described how that process had been fractured into a half-dozen different meetings, as elements have been added to the site plan approval process – such as citizen participation meetings and design guideline review board meetings. She encouraged reexamining each of these different process elements as the D1 zoning undergoes review.

413 E. Huron – Public Hearing Mechanics

The public hearing on the 413 E. Huron site plan was continued from the April 15 meeting. Because it was the same public hearing, mayor John Hieftje explained toward the start of it (after the first speaker had addressed the council) that anyone who had spoken on April 15 would not be allowed to speak again.

Thomas Partridge was the third person who attempted to speak during the public hearing on the 413 E. Huron site plan. But Hieftje refused to allow him to speak – because it would have been Partridge’s second time speaking, as he’d addressed the council during the same public hearing on April 15. Partridge was reluctant to yield, and asked for a citation of the rule preventing him from speaking again. Assistant city attorney Kevin McDonald advised Partridge that no amendments had been made to the site plan since the previous meeting and that Hieftje had indicated that Partridge did not have the right to speak. McDonald concluded: “We would ask you to sit down at this time.”

A recess was called while the issue was sorted out and Partridge was convinced he wouldn’t be allowed to speak.

When the meeting came back out of recess, John Floyd took the podium and observed that if the rule was that there was only a single opportunity to speak, then Partridge’s question – requesting to know what the statute number is – wasn’t unreasonable. Floyd continued by saying that calling in a policeman to stand as an intimidating presence was, he thought, “a little uncalled for.” [An officer from the Ann Arbor Police Department is often in attendance at council meetings, sometimes more visibly than others. On May 6, an officer was standing in the back of the council chambers.]

Floyd began his own remarks by stating: “The developers of 413 [E. Huron] are not evil people. They’re like the rest of us.” He continued with remarks on the site plan. As he reached the end of his turn, he perceived that not all councilmembers were paying attention to what he was saying, and he conveyed to them his thoughts on their inattention:

I see that several people have things to do other than to listen to the public speaking. I appreciate that it’s a hard and annoying thing – to pay attention to the people in front of you – but I think that’s what you get your pay for, among other things. If you don’t feel like you want to earn it, there’s a door over here – you might want to try walking through it!

[Floyd's blistering rebuke, which seemed directed toward Ward 4 council representatives Margie Teall and Marcia Higgins, elicited some gasps and a "Holy smokes!" from the audience.]

413 E. Huron – Legacy

The substance of Floyd’s remarks included one of the common threads that ran through several speakers’ comments – namely the legacy that the council would be creating for itself in its decision. Floyd’s remarks, before delivering a rebuke to those he didn’t think were listening, included the following:

[Developers have] got a way of making money, and they want to go where they can go and make money. They’re not any different than the rest of us this way. Nonetheless, the site plan approval requires adhering to things beyond the zoning … It’s entirely possible that I’ve missed something, because I haven’t been privy to your conversations over the last two weeks. But I have not yet heard of a substantive response to any of the points raised by the speakers who spoke two weeks ago, about the various ordinances they are required to meet. And I don’t think that the council or the developer gets to choose which ordinances they decide to obey or enforce. That doesn’t mean that they are evil people, it just means that there are ordinances that have not been met to approve a site plan. You know, every one of us is going to be remembered for something. One of the questions tonight – in addition to “Do the laws of Ann Arbor have any meaning?” – is “What is this council going to be remembered for?” Twenty years from now, will the Ann Arbor Observer be writing articles about you, and the way you decided not to follow the law, and destroyed, in consequence of that, one of the most important trees in town? … So what do you want to be remembered for? Following the law? Or not following the law and causing irreparable harm to one of the jewels of the city? Thank you for paying attention.

Reena Liberman cautioned the council that 10 years from now, if the building is constructed, it will be seen as a mark of poor city council management.

Cheri Alexander told the council that when she teaches, what she asks are simple questions: What result do you want to create? What will be your legacy? What will be the story that will be told about you?

David Olson told the council that a lot of people are concerned about the project. The implications go beyond this particular project, he said. Olson contended it would set a precedent for future downtown development. In particular, it would reflect how the letter and spirit of the A2D2 zoning would be adhered to. He characterized the proposal as disregarding the city’s design guidelines. He questioned whether it was worth it for him to participate in the community conversation, if there’s not follow-through on the vision that’s been agreed on.

413 E. Huron: Booklet

A nine-point booklet was distributed to councilmembers. Later in the week, on May 10, Ann Arbor city planning staff provided responses to the nine points. For an overview, see “413 E. Huron: 9-Point Booklet.”

Sumi Kailasapathy (Ward 1) receives her copy of the booklet.

Sumi Kailasapathy (Ward 1) receives her copy of a booklet listing out the nine points of objection to the 413 E. Huron project.

Hugh Sonk introduced the council to the booklet with nine topics. He noted that subsequent speakers would be citing specific points in the booklet.

Sonk highlighted sections in the city code that require a finding that the development complies with all federal, state and local standards and regulations. He also highlighted the natural features requirement that allows disturbance of such features only to the extent that it’s required for a reasonable, not maximal, use of the land. And finally he pointed out the requirement of a finding that there not be a detrimental effect on the public health, safety and welfare.

“Fact 1″ of the booklet was introduced by Liz Knibbe, who told the council that she’d worked for 35 years in architecture and urban planning. In her experience, the local jurisdictions work under the state’s enabling legislation. She quoted the definition of “site plan” from Michigan’s Zoning Enabling Act 110 of 2006:

“Site plan” includes the documents and drawings required by the zoning ordinance to ensure that a proposed land use or activity is in compliance with local ordinances and state and federal statutes.

She also quoted from Section 203 of the statute, which imposed requirements on the kind of local zoning laws that can be established:

A zoning ordinance shall be based upon a plan designed to promote the public health, safety, and general welfare, to encourage the use of lands in accordance with their character and adaptability, to limit the improper use of land, to conserve natural resources and energy, to meet the needs of the state’s residents for food, fiber, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land, to ensure that uses of the land shall be situated in appropriate locations and relationships, to avoid the overcrowding of population, to provide adequate light and air, to lessen congestion on the public roads and streets, to reduce hazards to life and property, to facilitate adequate provision for a system of transportation including, subject to subsection (5), public transportation, sewage disposal, safe and adequate water supply, education, recreation, and other public requirements, and to conserve the expenditure of funds for public improvements and services to conform with the most advantageous uses of land, resources, and properties. A zoning ordinance shall be made with reasonable consideration of the character of each district, its peculiar suitability for particular uses, the conservation of property values and natural resources, and the general and appropriate trend and character of land, building, and population development.

“Fact 2″ from the booklet was introduced by Tom Stulberg, a member of the city’s historic district commission, who stated that the site plan doesn’t comply with city codes and ordinances:

Chapter 57, Section 5:122(6):
Standards for site plan approval. A site plan shall be approved by the appropriate body after it determines that: (a) The contemplated development would comply with all applicable state, local and federal law, ordinances, standards and regulations; and (b) The development would limit the disturbance of natural features to the minimum necessary to allow a reasonable use of the land, applying criteria for reviewing a natural features statement of impact set forth in this Chapter; and (c) The development would not cause a public or private nuisance and would not have a detrimental effect on the public health, safety or welfare.

“Fact 4″ from the booklet was introduced by Susan Morrison, acting as legal counsel for Norm and Ilene Tyler, who own a property on North Division to the north of the proposed project. The issue identified by Morrison was the application of the special exception use. Morrison contended that the parking structure component of the building should be analyzed as a “special exception use” – for which the project had not sought review and approval from the city planning commission.

“Fact 5″ was addressed by both Gwen Nystuen and Ingrid Ault. Nystuen is a former member of the park advisory commission, and Ault is a current member of that group. Nystuen cited the natural features plan, and stated that the development would remove 50% of the critical root zone of one of the landmark trees. The project also would condemn trees in that area to perpetual shade. Her call for the council to “do the courageous thing” elicited applause. Ault told the council that it was the legacy tree that had brought her to the table. She reported the assessment of an arborist who’d predicted the death of the 250-year-old oak tree within five years, if the building were constructed.

“Fact 6″ was addressed by Richard Peshkin, Ben Hooper, Emily Bellock, Carolyn Fahey and Cathy Hufano. The code provision they cited was the requirement that a development not cause a public or private nuisance. Their contention of a nuisance and detrimental effect on health, safety and welfare was based on traffic safety issues related to the configuration of the service drive entrance off Division, as well as the driveway entrance on Huron Street. Issued cited in the booklet included:

  • No off-street drop-off area on Huron Street.
  • Lack of provision for move-in/move-out student drop off days.
  • Acute 81 degree turn-in for auto entry is a traffic hazard.
  • Traffic delays for cars entering underground parking.
  • Cars leaving the underground ground will impede Huron Street’s 23,000 cars per day.
  • Cars going east will cut through Ann Street residential area.

On a related note later in the hearing, Barbara Bach questioned whether the logistics of move-in had been adequately addressed.

“Fact 7″ was addressed by Andrea Van Houweling. The ordinance provision cited is the city’s noise ordinance. Her contention was that the allowable noise level for construction activity is a hazard to health.

“Fact 8″ was addressed by architect Jan Culbertson. While she supported increasing density in the urban core, she contended that there are details missing on the site plan to indicate height and manner of construction for the retaining wall on the east side of the property.

“Fact 9″ was introduced by another member of the historic district commission – John Beeson. The objection to the project was based on the requirement that zoning ordinances ensure that “adequate light and air” are provided. The solar study showed that the properties immediately to the north would have an unreasonable amount of shade, he said.

Betsy Price told the council that it’s not the high-density zoning that has gotten people riled up. What citizens are pushing back against is the lack of conformance with specific clauses of the zoning code.

The owner of the property immediately to the north of the project, Steve Bellock, stressed that the objections that had been raised were not to the appropriateness of the zoning, but rather to the specific elements of the site plan.

Herb Kaufer introduced himself as a downtown resident. He disagreed with the conclusion that the project would not cause a public or private nuisance.

413 E. Huron: Risk of Lawsuit, Tough Decision

Norman Hyman characterized the recent letters that had been sent to the council by attorneys for the 413 E. Huron project – Pat Lennon and Susan Friedlaender – as a one-two punch. Hyman, who represents Sloan Plaza residents, noted that he’d sent a short letter of his own to the council in response to them. Hyman characterized Lennon’s letter as saying that the site plan proposal had to be approved because it conformed with all the standards, but Hyman contended that Friedlaender had told the council in her letter that the council should not follow one of the standards.

Piotr Michalowski told the council he walked by the corner of Division and Huron almost every day. He couldn’t imagine that the project might be built. He described himself as “shaken” by the fact that the council doesn’t have any choice. He felt that it wasn’t true that the council had to vote to approve the project. The council had heard various arguments from lawyers and he understands that councilmembers had to be concerned about the legal risks and whether it was worth spending the money to defend the city. He observed that the city already spent money to defend itself in various ways – by fixing potholes and hiring firefighters, for example. He felt that in the case of 413 E. Huron, it was worth risking.

Harvey Falit alluded to a quote from Christopher Taylor (Ward 3) reported in to the effect that site plan review is an administrative process rather than a deliberative one, and did not allow for the council to exercise judgment as to whether the project was good for the neighborhood or Ann Arbor. Falit questioned whether that was true. Falit didn’t think anybody was encouraging anyone to go against the law, but he allowed that denying the project approval might lead to a lawsuit. He ventured that enough legal opinions had been offered to indicate that a lawsuit would be defensible.

Mark Koroi told the council that he thought only poor excuses had been offered as reasons for not being willing to defend a lawsuit. He pointed out the Ann Arbor Transportation Authority is willing to fight a lawsuit to keep an ad off a bus. He stated that if a lawsuit were filed, it would go to the Washtenaw County 22nd Circuit Court. Of the six judges for that court, he said, five are Ann Arbor residents. He told the council not to be afraid of a lawsuit.

Vivienne Armentrout wanted to respond to a comment quoted in the media – an apparent allusion to Taylor’s remark on the idea that site plan review is not a deliberative process but rather an administrative one. She invited the council to reflect on its function. Councilmembers don’t manage the city, collect the taxes or collect the garbage. Instead she said, “We depend on you for the heavy thinking.” She described city councilmembers as the “prefrontal lobes,” telling them that residents were depending on them to ensure that their answer to the dilemma is the best thing for the city and its residents.

Doug Kelbaugh, former dean of the University of Michigan college of architecture and urban planning, introduced himself as a nearby resident. [He lives at the old re-purposed armory building at Fifth Avenue and Ann Street.] He criticized the 413 E. Huron structure as crowding the “view corridors” from both the east and the west. The building “looms well above Sloan Plaza,” he said, and “hoards” the sunlight from the neighboring buildings to the north.

The revisions that had been made to the project by trimming off eight units at the top was, Kelbaugh said, “a haircut, not a redesign.” The issue is not a matter of architectural style or detail, he said, but rather a matter of urban design. He questioned the desirability of a “monocultural” building: Do we really want 500 of any one kind of resident – 500 empty nesters, 500 yuppies, or 500 architects? He challenged the council to make “a tough, hardball call.”

413 E. Huron: Quality of Neighborhoods

Trey Bailey told the council that he was opposed to “this slum in the sky.” But on the positive side, he quipped that the proposed building might displace city hall as the ugliest building in the city.

Marilyn Green told the council that when she’d seen recent University of Michigan graduates spilling out of the auditorium, she’d been reminded of what she likes about Ann Arbor. The city is charming, historic, cultural and cares for its students and its community. She asked councilmembers: Would you want to live next door to this building?

Kat Steih told the council she’d lived in Ann Arbor for seven years, and was now a student at the University of Michigan. She said she was speaking for students who’d chosen to live in the Kerrytown neighborhood because of the character of the neighborhood. She expressed the view that the proposed project would have a negative impact on that character.

413 E. Huron: Economics

Steve Beisheim told the council he’s 32 years old and has lived in a variety of cities and different places within Ann Arbor. He loves the walkable density of Ann Arbor, he said. What makes Ann Arbor attractive to students is what makes it attractive to professionals – walkability. He told the council that they were either supporting sprawl or they were supporting density. To regulate neighborhood character there are other options besides stopping the building, he said. He told the council they would be supporting affordable housing on the outskirts of the city where he lives, by allowing more units to be built downtown. That put downward pressure on rents in the periphery, he said. He allowed that the building is not going to be “the prettiest thing ever.” But he did not think that the building would have an impact on Kerrytown, as Steih had indicated in her remarks.

During public commentary reserved time, Peter Eckstein told the council that beyond the loss of Blimpy Burger, the new graduate student resident hall to be built at that location by the University of Michigan has other implications. The residence hall will offer 600 beds a short walk from the campus and will be subsidized by a $110 million gift, he noted. The student luxury housing market is already saturated – and will become more saturated even if 413 E. Huron is not added, he warned.

Peter Eckstein also addressed the council at a previous meeting, on April 15, and referred to an article on student housing published in The Ann Magazine, which he showed the council.

Peter Eckstein also addressed the council at a previous meeting, on April 15, when this photo was taken. At the time, he referred to an article on student housing published in The Ann Magazine, which he showed the council.

This suggested, Eckstein continued, that the council’s planned review of D1 zoning might not be enough. Whatever vote the council takes on 413 E. Huron – up or down – needs to be followed up by a moratorium on new downtown development in certain areas, he said. Any legal concerns surrounding a moratorium will become moot once 413 E. Huron is off the table, he said. A moratorium would ensure that no new proposal could come along and sneak a “camel’s nose under the tent” before new zoning can be enacted.

Speaking to the developer, Eckstein said it’s not too late to reconsider the risks of adding to a shrinking housing market. Undergrad enrollment at the university has been frozen, he contended, and other new buildings are coming on line. University dorms are being refurbished, and the new graduate student residence hall will offer more bang for the buck, he said. Ann Arbor has a lot of history a developer can learn from, Eckstein said, alluding to large real estate projects that have gone broke and been sold off for pennies on the dollar. He told the developer that the developer owed the financial backers an explanation of how risky the project really is. Eckstein cited mayor John Hieftje as someone with real estate experience, who’d said he’d have stopped investing in high-rise student housing about three buildings ago.

Outcome: The council recessed the meeting at 11:30 p.m. just as it reached the 413 E. Huron site plan review on its agenda. The item will be first on the agenda when the council resumes the May 6 meeting on May 13. That meeting will start at the usual time – 7 p.m.

DDA Ordinance

On May 6 the city council considered a final vote – for the second time – on changes to the ordinance regulating the Ann Arbor Downtown Development Authority.

Ann Arbor DDA TIF Revenue projections

Ann Arbor DDA TIF revenue projections. The vertical line indicates the year when the clarified calculations would be implemented. The red line is the amount of TIF revenue assumed by the DDA in its FY 2014 and FY 2015 budgets, and in its 10-year planning document. The blue line is the estimated TIF revenue under the proposed clarified ordinance calculations. The yellow line is the estimated TIF revenue the DDA would receive if the DDA continued to interpret the city’s ordinance in its own way. (Numbers from the city of Ann Arbor and DDA. Chart by The Chronicle.)

Several revisions to Chapter 7, the DDA-governing ordinance, had received an initial approval from the city council at its April 1, 2013 meeting. If the revisions are given final approval, the result would be roughly $490,000 in additional annual revenue for the city of Ann Arbor – compared to what the city would receive under the DDA’s current interpretation of the ordinance.

After voting around 3 a.m. to postpone the item at its April 15, 2013 meeting, the council voted again on May 6 to postpone final consideration.

The ordinance revisions considered by the council fell roughly into two categories: (1) those involving board composition and policies; and (2) calculation of tax increment finance (TIF) capture in the DDA district.

In the first category, the revisions to Chapter 7 that had received initial approval by the council included: a new prohibition against non-mayoral elected officials serving on the DDA board except by agreement with the other taxing jurisdictions; term limits on DDA board members; and a new requirement that the DDA submit its annual report to the city in early January.

More significantly are the revisions to Chapter 7 that would clarify how the DDA’s TIF capture is calculated. While the interpretation of the ordinance language is disputed, it’s mostly acknowledged that the ordinance doesn’t provide explicit and clear enough guidance on those TIF calculations.

The “increment” in a tax increment finance district refers to the difference between the initial value of a property and the value of a property after development. The Ann Arbor DDA captures the taxes – just on that initial increment – of some other taxing authorities in the district. Those are the city of Ann Arbor, Washtenaw County, Washtenaw Community College and the Ann Arbor District Library. For FY 2013, the DDA will capture roughly $3.9 million in taxes.

The ordinance revisions would clarify existing ordinance language, which includes a paragraph that appears to limit the amount of TIF that can be captured. The limit is defined relative to the projections for the valuation of the increment in the TIF plan, which is a foundational document for the DDA. The result of the clarification to the Chapter 7 language would mean about $360,000 less TIF revenue for the DDA in FY 2014 – compared to the $3.933 million shown in the DDA’s adopted budget for that year. But for FY 2015, the gap between the DDA’s budget and the projected TIF revenue – using the proposed clarifying change to Chapter 7 – is just $74,000.

However, an amendment to the ordinance changes – accepted as “friendly” at the council’s April 15 meeting – would apply the clarified calculations starting in FY 2015. That would result in minimal impact on TIF revenue to the DDA – compared with the DDA’s own recently adopted FY 2014-15 budgets and its 10-year planning document.

However, the total increment in the district on which TIF is computed has shown significant development growth. And under the proposed clarification of Chapter 7, that growth would result in a return of TIF money to other taxing jurisdictions (which would otherwise be captured by the DDA) totaling around $900,000 each year from FY 2015 through the next 10 years. The city of Ann Arbor’s share of that would be roughly $490,000.

These projections do not include the tax capture that would result in future years from completion of major downtown projects like City Apartments, 624 Church, 618 S. Main, or 413 E. Huron (assuming that it is approved).

The amount of TIF capture that’s returned to the other taxing jurisdictions is tied to growth in the valuation by the existing Chapter 7 language. Under Chapter 7, if the actual rate of growth outpaces the growth rate that’s anticipated in the TIF plan, then at least half the excess amount is supposed to be redistributed to the other taxing authorities in the DDA district.

In 2011, the DDA for the first time returned excess TIF capture to other authorities, when the existence of the Chapter 7 language was reportedly first noticed. At that time, the DDA made repayments of TIF monies to other authorities of around $400,000, which covered what was owed going back to 2003. When the DDA calculated the amounts owed in 2011, the city of Ann Arbor waived its roughly $700,000 share.

In 2011, the DDA used a year-to-year interpretation of the Chapter 7 language instead of computing rate of growth against the base year in a cumulative fashion. That is a point that the Chapter 7 revisions would clarify.

Before giving initial approval on April 1, 2013 – but then postponing the ordinance amendments on April 15 – the council had previously postponed voting at its March 18, 2013 and March 4, 2013 meetings.

DDA Ordinance Revisions: Public Hearing, Communications

During the April 15 public hearing on the DDA ordinance revisions, a number of speakers contended there was a connection between the ordinance revisions and support for affordable housing. During communications time at the start of the May 6 meeting, Stephen Kunselman (Ward 3) announced that he had several possible suggestions to make that would could establish an actual connection between the ordinance revisions and affordable housing.

Kunselman sketched out three possible proposals: (1) 10% of the DDA’s TIF capture would be earmarked for affordable housing; (2) the DDA’s housing fund would be reserved for affordable housing at 30% of the area’s average median income; (3) 50% of the city of Ann Arbor’s TIF “rebate” would be deposited into the city’s affordable housing trust fund; and (4) for the FY 2014 budget, $0.5 million of the DDA’s TIF would be transferred to the DDA’s housing fund.

The public hearing on May 6 was continued from April 15.

DDA Ordinance: Public Hearing – Board Members

Five members of the 12-member Ann Arbor DDA board addressed the council.

DDA board chair Leah Gunn commended the council for making affordable housing one of its priorities. The DDA had supported affordable housing for the last 20 years, she said, and she was afraid if the ordinance were enacted the DDA’s TIF would be “destroyed.”

Joan Lowenstein told councilmembers that they had not allocated any money for economic development – saying the only economic development arm the council has is the DDA. She criticized the idea of cutting economic development money right at the time when the economy is starting to come back. She told the council if they wanted to be mired in the “toxic sludge of the status quo,” then they should enact the ordinance amendments, and do it in the middle of the night.

Other supporters of the DDA were somewhat more moderate in tone.

Newcombe Clark listed off his credentials beyond his service on the DDA board, which included stints on the boards of the Main Street Area Association and the Michigan Theater. He described himself as a three-time graduate of the University of Michigan. Downtown Ann Arbor is where he’s made his money and where he’s met his girlfriends, he said. His frustration that the downtown is not perfect has caused him a lot of pain, he said. The DDA is also not perfect, he allowed. But it’s that imperfection that causes him to wake up every day wanting to try to make it perfect. And he was working with so many smart people on various boards, and with the city council, who were working to make the downtown perfect. He called that the “greatest luxury of my life.” Whether or not the proposed ordinance amendments are the right way to try to make the DDA a little closer to perfect, he thanked councilmembers for trying.

Clark felt that the ordinance changes are not about money, telling the council that the city had already taken all the DDA’s money. [This was an allusion to the contract under which the DDA manages the city's public parking system.] He told the council they had appointed DDA members to be “your eyes and your hands, in the soil of the downtown.” The DDA board is supposed to think about a small part of the city, which is the downtown, so that the council can think about the broader good. He invited councilmembers to ask him questions and to practice inquiry over advocacy. If it’s about politics, then be honest about it, he said – noting that’s not his area of expertise. [It was perhaps an oblique self-deprecating allusion to Clark's unsuccessful candidacy for a Ward 5 city council seat in the 2010 election.] Clark told the council: “I’m happy to give you everything I have.”

Sandi Smith introduced herself as former city councilmember, a member of the DDA board and a resident of Ward 1. She told the council she’d served on the board of the DDA for more than two terms, so one of the proposed amendments to the DDA ordinance – on term limits – would affect her. About that she said, “It doesn’t matter.” Some of the things the council was considering, she said, “They’re passable, it’s fine – I don’t have a problem with them.” But she did have a problem with picking out amendments and adding them – calling it a moving target. If the goal was to achieve clarity in the ordinance, she said, “Let’s sit down and talk about it.” She understood that it’s tough to find money in the budget, so it looks easy to grab it and move it around. But she encouraged the council to celebrate the success of the downtown and create some more successes.

Russ Collins, executive director of the Michigan Theater, said he appreciated the city council’s interest in improving the DDA and in improving the city. He reviewed some of the facts surrounding how the DDA works. Members of the board are appointed to four-year terms, and the appointments are voted on by the city council. Collins said he believed that the DDA had been a very good partner of the city. He reviewed some of the history of the contract under which the DDA manages the city’s public parking system.

In 2005, the city and the DDA agreed to a contract under which the city received $1 million a year for 10 years, Collins explained. But the contract allowed the city to request up to $2 million in any given year, so long as the total didn’t exceed $10 million for the 10-year period. The city requested $2 million in each of the first five years, at which point the city requested that the contract be renegotiated, Collins said. Now the city receives over $3 million per year. [The amount is based on 17% of gross parking revenues. Not all of the roughly $3 million goes to the general fund. About $800,000 goes to the city's street fund. Historically, that amount had been paid to the city outside the terms of the parking contract. The connection to the street fund is related to the fact that the city turned over management of the on-street parking spaces to the DDA in the early 2000s.]

DDA Ordinance: Public Hearing – Non-board Members

Rita Mitchell expressed thanks to the DDA for 30 years of improvements to the parking system. She ventured that perhaps the work of the DDA is done. Perhaps the city should contract directly with Republic Parking for day-to-day operation of the system, which is what the DDA currently does. She thanked Sumi Kailasapathy (Ward 1) and Stephen Kunselman (Ward 3) for their proposed amendments to the ordinance, saying that it would bring clarity. No “interpretation” of the ordinance should be required. She pointed out that the city is more than just a downtown.

John Floyd said that to him, the proposed revisions to the ordinance seemed like they were low-key, good-governance proposals. Instead of having TIF revenue grow at 4% for the DDA, it would perhaps grow at a 2% rate. He didn’t see that as the end of the world. While there are pros and cons about term limits or who should sit on the board, he didn’t think those provisions were the end of the world. While Floyd thought it was great that the DDA was involved in affordable housing, he saw no reason why other government entities could not fulfill that function – the entities from which the DDA captures taxes. Floyd told the council the unfounded assumption was that affordable housing wouldn’t be funded unless the DDA did it. On the whole, the ordinance revisions seemed like a reasonable thing for the council to approve, Floyd said. He added that many arguments against the revisions had been made by people who have not read what they’re speaking about.

Rich Bellas – owner of Van Boven Shoes, a downtown shop – told the council to look to the past at what the DDA had accomplished, with an eye to the future. He felt that cutting the DDA’s funding would handcuff the organization.

Ali Ramlawi, owner of Jerusalem Garden, said he was not there to thank the DDA for building the Library Lane underground parking garage, but he was glad the project was done. [Ramlawi, whose restaurant is located almost immediately adjacent to the new garage, was party to a lawsuit about the parking garage before it was built and addressed the council and the DDA on several occasions during the course of the construction.]

Ramlawi described how he’d met with mayor John Hieftje and learned why the DDA was formed back in the early 1980s – when the downtown area was suffering. Back in the 1970s and early 1980s, downtown Ann Arbor was not the kind of place to bring kids or start a business. But today it’s different. Ramlawi contended that the DDA’s purpose needs to be altered and the organization needs to be reformed. He said he was there to speak against the status quo, saying that the DDA should reflect 2013 not 1982. Ann Arbor no longer has a suffering downtown, he said.

Mark Koroi thanked Kailasapathy and Kunselman for putting forward the ordinance changes. As some evidence that the DDA needs more oversight than it currently has, he offered the recently discovered situation with the downtown citizens advisory council, which exists under the DDA statute. None of the members have appointments that are current – because their terms have all expired. He characterized this as resulting from a failure of members to renew their applications.

Odile Huguenot-Haber expressed skepticism of the DDA’s support for affordable housing. She said she’d look at the budget and couldn’t find any money allocated for it. [The DDA's budgets for FY 2014 and FY 2015, adopted earlier this spring, include a $100,000 transfer into its housing fund for each of those years. The DDA's 10-year planning document also includes a $100,000 transfer into the housing fund.] Huguenot-Haber said in any case she was not sure the DDA is the appropriate agency to address the issue of affordable housing. She supported the ordinance changes, and would like to see the DDA have more accountability and transparency.

Brian Kelly spoke on behalf of young professionals like himself. Curtailing the DDA’s budget and not allowing the DDA to grow as Ann Arbor grows would be dangerous, he cautioned, and would ultimately result in the loss of young professionals.

Gwen Nystuen appreciated the fact that Kunselman and Kailasapathy had worked on the clarification of the ordinance. She felt those who’d spoken at the public hearing on April 15 about the DDA ordinance [many of whom had been recruited from the homeless community to appear and speak in support of affordable housing] were missing the point. She ventured that some of the people hadn’t read the proposed ordinance changes. It was not some drastic thing that would cause great damage, she said. And everyone seems to agree there’s ambiguity and a lack of clarity.

Frances Todoro-Hargreaves spoke on behalf of the State Street Area Association. She told the council she was happy to hear and to see the dialogue. She admired the creative thinking that the council had shown at its previous meeting. [This was an allusion to the friendly amendment Sally Petersen had put forth, which delays enactment of the clarified calculations until FY 2015 and essentially eliminates any shortfall of TIF revenue to the DDA, compared to the revenue the DDA has planned for over the next 10 years.] She’d been looking forward to that open dialogue between the council and the DDA. She encouraged a longer dialogue before making a long-term decision.

Maggie Ladd spoke on behalf of the South University Area Association. She called it dangerous to try to fix something that isn’t broken. She called the DDA an organization that gets things done, and listed out a number of the DDA’s accomplishments. Ladd urged the council to exercise caution, even with the wise amendment that Sally Petersen had made to the proposal on April 15. She urged the council to take a measured approach.

DDA Ordinance Revisions: Council Deliberations

Marcia Higgins (Ward 4) said she was happy that Stephen Kunselman (Ward 3) had now taken steps to work collaboratively. She felt that additional time was needed to look at the issue. So she moved to postpone the question until the council’s first meeting in September, which falls on Sept. 3.

Stephen Kunselman (Ward 3)

Stephen Kunselman (Ward 3).

Kunselman agreed that there’s a lot to be discussed. He said it was worth trying to make sure that the council got things right.

Responding to previous statements from Christopher Taylor (Ward 3) that “the DDA ain’t broke,” Kunselman stated that clearly there is something broken – otherwise the council wouldn’t be having this discussion today.

Sumi Kailasapathy (Ward 1) then read aloud from a 10-year old article published in the Ann Arbor News, which was still in publication at the time. [.pdf of Sept. 16, 2003 article retrieved from the Ann Arbor District Library online archives] The letter includes the following:

After holding the future of the Downtown Development Authority in limbo for 16 months, the Ann Arbor City Council on Monday approved a new 30-year deal for the DDA on the premise it will spend more of its money on affordable housing. With a 10-0 vote, the council extended what many hoped would be an olive branch to the DDA.

The city and the DDA have had a tense relationship that has been strained for years in arguments over parking structures, money and conflicting personal relationships. The City Council and the DDA both use tax money to keep Ann Arbor’s downtown chugging along in what both boast is one of the economic pearls of the state.

The nonprofit DDA captures a portion of property taxes from new development is built in its district, also known as tax increment financing (TIF). Just how to spend that nearly $3 million a year has been a source of friction between the city and DDA.

“There has been a history of cutting deals more than partnering,” said DDA board Chairwoman Rene Greff, who owns the Arbor Brewing Co.

Kailasapathy paraphrased Karl Marx by saying that history repeats itself – the first time as a tragedy and the second time as a farce. She highlighted Greff’s statement that the history had been more about cutting deals than partnering. Kailasapathy stressed the issue should be approached with sincerity. She asked that people not pretend the situation was created by her and Kunselman.

Margie Teall (Ward 4) said that the issue was difficult for her because she doesn’t think the DDA is broken. She felt that the DDA has bent over backboards backwards to partner with the city. She was not particularly interested in delving into the issue. She did feel that there is some clarification that needs to be made in the ordinance language – but she felt that could be handled by staff even sooner than September. She said she would support the postponement, but not enthusiastically.

Christopher Taylor (Ward 3)

Christopher Taylor (Ward 3).

Taylor said that as a matter of “comity” he’d support postponement. But he felt that what he’d learned about the DDA from its actions since the time he’d been familiar with the organization is that it is “not fixed.” He then paused to recover from the mis-statement, and made clear that he’d meant to say that the DDA is “not broken.”

Responding to Kailasapathy’s citation of the 2003 newspaper article, Taylor contended that whatever happened in 2003, Greff had appeared in front of the council much more recently – at a previous public hearing – to speak against the proposed ordinance changes. What the DDA does is good for the downtown, and that’s good for the other taxing authorities, Taylor said.

Taylor claimed that the ordinance amendment would pull millions of dollars out of the downtown. That didn’t make any sense to him. He objected in particular to removal of a provision that he construed as putting a rebate to other taxing jurisdictions ahead of payments toward debt. He would not mind seeing the wording of the existing ordinance clarified – but he wanted the clarification to be to the downtown’s benefit.

Jane Lumm (Ward 2) indicated she would support the postponement – although she had been prepared to vote in support of the ordinance revisions. She reiterated remarks she’d made previously to the effect that she did not think the proposal would harm the DDA and she would not support the proposal if it did that.

Outcome: On a unanimous vote, the Ann Arbor city council again delayed final enactment to changes in the city’s ordinance governing the Ann Arbor Downtown Development Authority. The postponement is until the council’s second first meeting in September – on Sept. 3, 2013.

Digital Sign Ordinance

The council considered final approval to changes in the city’s sign ordinance – to allow for only a limited type of digital signs. The council had given initial approval of the changes at its meeting on March 18, 2013. But at the council’s April 1, 2013 meeting, the council delayed action until May 6. [.pdf of proposed outdoor advertising ordinance]

A council-enacted moratorium on applications for digital signs was set to expire on April 11, 2013. At its April 1 meeting the council decided to extend that moratorium until July 1, 2013.

According to the resolution approved by the council on April 1, the purpose of postponing a decision on the ordinance amendment and extending the moratorium was to allow for additional time to review the proposed amendments and to “gather input from the public and interested parties, and to promote the public health, safety, and welfare of city residents.”

A town hall meeting on billboards, hosted by Ward 5 councilmembers Chuck Warpehoski and Mike Anglin at Downtown Home & Garden at Ashley and Liberty streets, took place on May 8. [.pdf of town hall flyer] Most of the existing billboards in the city are located in Ward 5.

If enacted, the changes would mean that a limited type of digital signs would be allowed in the city. But the effect of the proposed ordinance changes would be that no new billboards would be permitted – although the existing 28 billboards in the city would be allowed to remain as non-conforming signs. Existing billboards would not be allowed to be retrofitted for digital displays.

Under the proposed ordinance changes, new signs with an area greater than 200 square feet could not be constructed. And existing signs of that size could not have electronic features added to allow for changeable text or images.

The existing sign ordinance does not allow for any changeable text, except for “noncommercial information which requires periodic change” – like time and temperature. So the proposed changes to the ordinance would allow for changeable portions of a sign, subject to the limitation that the changeable portion of the sign not be more than half the area of any sign, and no more than 30 square feet per sign and 15 square feet per sign face. Additional limitations would prevent flashing and scrolling – by not allowing changes to content more often than 15 minutes. The proposed ordinance language states:

Changeable copy shall not and shall not appear to flash, undulate, pulse, blink, expand, contract, bounce, rotate, spin, twist, or otherwise move.

The proposed ordinance restrictions on dynamic elements of signs were motivated in part – based on remarks of city planning manager Wendy Rampson at the council’s March 18 meeting – by the perception that these elements are a distraction to motorists. That argument has been countered by Adams Outdoor Advertising in written communication to the city by citing studies that conclude any distraction does not cause a greater rate of traffic accidents.

The proposed ordinance changes would place a maximum brightness of any illuminated sign, including those that are digital/electronic: 5,000 nits during the day and 100 nits at night, and in no case greater than 0.1 foot-candles above the already existing amount of light at a residential property line. One nit is defined as one candela per square meter. A candela is about the amount of light produced by a common tallow candle.

By way of comparison, an iPhone 5 display is reported to have a brightness of about 500 nits.

The moratorium on digital signs was first enacted for 180 days at the council’s April 17, 2012 meeting. And the city council had extended the moratorium for an additional 180 days at its Oct. 1, 2012 meeting.

Falling under the moratorium are “billboards commonly referred to as ‘electronic message centers,’ ‘electronic message boards,’ ‘changeable electronic variable message signs,’ or any billboard containing LEDs, LCDs, plasma displays, or any similar technology to project an illuminated image that can be caused to move or change, or to appear to move or change, by a method other than physically removing and replacing the sign or its components, including by digital or electronic input.”

Sign Ordinance: Public Hearing

Thomas Partridge said the prohibition of digital signs reflected a lost opportunity to inform the public about public safety issues. He questioned whose signs and what messages might be limited? Was it messages from rival candidates for mayor or city council? Partridge contended that there hadn’t been adequate consideration of the proposed amendments and said the vote shouldn’t be taken at that meeting.

Ellen Ramsburgh, a member of the city’s historic district commission (HDC), began by saying that she was not familiar with the proposed amendments. Ann Arbor’s HDC had followed the leadership of Ypsilanti’s HDC, she said, by putting together a list of iconic signs in the city that should be preserved. She wasn’t sure where that list had gone, but the Beer Depot sign was an example of a sign that was on the list. The HDC had wanted to grandfather them in so they could be replaced if they fell down.

Christine Brummer told the council that she’d served on the sign board of appeals for at least a decade. During her time on that board, if a sign was iconic – like the sign for the Big 10 Party Store, which became that became Morgan & York, or the Beer Depot sign – the board had allowed them to be preserved as quasi-historic. She pointed out that the sign board of appeals had now been folded into the zoning board of appeals – so those kinds of sign issues would go before the zoning board of appeals.

Sign Ordinance: Council Deliberations

Chuck Warpehoski (Ward 5) indicated that he wanted to postpone the vote until June 17. He noted that a town hall meeting on billboards would take place on May 8 hosted by him and Mike Anglin (Ward 5) at Downtown Home & Garden at Ashley and Liberty streets. Most of the existing billboards in the city are located in Ward 5. Anglin noted that representatives from Adams Outdoor Advertising would be there.

Sally Petersen (Ward 2) and Mike Anglin (Ward 5) talke before the meeting started.

Sally Petersen (Ward 2) and Mike Anglin (Ward 5) talk before the May 6 meeting started.

Sally Petersen (Ward 2) got some clarification about the date to which it would be postponed. There’d been a staff recommendation to postpone until May 20. City planning manager Wendy Rampson indicated that postponing until June 17 would provide some additional time for staff to prepare its report.

Jane Lumm (Ward 2) asked that the issue about iconic signs be addressed – which Ramsburgh and Brummer had raised during the public hearing. Christopher Taylor (Ward 3) – sponsor of the changes to the sign ordinance – said that the signs those two had talked about were not billboards, and were thus not in the scope of the ordinance changes.

Commenting on the fact that the majority of the billboards in the city are in Ward 5, Taylor quipped that the effect of the proposed ordinance changes would “for good or ill” allow Ward 5 to retain that honor.

Stephen Kunselman noted that there’s a billboard near Packard and US-23 in Ward 3 – which he represents – so he hoped that sign could be included in the discussion.

Outcome: The council again decided to postpone final action – this time until June 17.

Video Privacy Ordinance

The council was asked to give initial consideration of a new ordinance regulating the use of public surveillance cameras. The council had previously postponed the item at its April 15 meeting – due to the length of that meeting. [.pdf of ordinance as presented to the council on April 15, 2013]

The proposed video privacy ordinance would not apply to CTN cameras like this one mounted in the Ann Arbor city council council chambers

The proposed video privacy ordinance would not apply to CTN cameras like this one mounted in the Ann Arbor city council chambers.

The new ordinance would apply only to a limited range of cameras – those used by the city of Ann Arbor “to monitor human activity without the physical presence of an operator, including cameras on remotely operated aerial vehicles.” The ordinance would not apply to a range of city of Ann Arbor cameras, for example: cameras used to improve traffic design, security cameras operating in jails, prisons, water treatment facilities, public housing facilities, or the Ann Arbor Airport and other governmental facilities.

The new ordinance would allow for public surveillance cameras to be installed for 15 days or less at the discretion of the city administrator if the purpose is to address a specific criminal problem.

A period of longer than 15 days would require two-thirds of nearby residents to give written permission. Regardless of the period of the installation, onsite notice of the camera’s presence would be required. If a private residence is in the public surveillance camera’s range, then the residents of that property would have to give written permission for the installation.

Public surveillance cameras could not be used for live-monitoring, except in emergencies, and audio recording would not be permitted. Access to the recorded images would be limited to “employees of the police department and attorneys involved in criminal proceedings.” After 90 days, surveillance recordings would be deleted unless they are part of an ongoing investigation. A report on the effectiveness of a camera would be published on a public website after its removal.

The council had been alerted to the forthcoming ordinance proposal nearly four months ago, when Chuck Warpehoski (Ward 5) told his colleagues at their Dec. 20, 2012 meeting that he and wardmate Mike Anglin would be bringing a proposal forward.

At that Dec. 20 meeting, Warpehoski said that the Ann Arbor police department doesn’t currently use that technique, but there’d been some concerns in other communities.

By way of additional background, the ordinance has been long in the works but has been delayed. Former Ward 1 councilmember Sandi Smith had announced at a council meeting over a year ago, on Aug. 4, 2011, that she’d be bringing a video surveillance ordinance for consideration at the council’s Sept. 6, 2011 meeting. And a year before that she’d indicated the city’s human rights commission would be working on the issue.

During the brief deliberations on the issue on May 6, Warpehoski indicated that after discussion with city administrator Steve Powers and chief of police John Seto, he’d be asking for a postponement.

Outcome: The council postponed action on the proposed video privacy ordinance until May 20.

Summit Townhomes Project

On the council’s agenda was the site plan approval for the Summit Townhomes project.

Both the site plan and the new zoning for the parcel, located at 2081 E. Ellsworth Road, had appeared on the council’s April 15 meeting agenda. The council approved the R3 (townhouse) zoning at that meeting. But as the hour grew late, at around 3 a.m. the council postponed all remaining items, including the Summit Townhomes site plan, until May 6.

Both the site plan and zoning request previously had been postponed by the council at its March 18, 2013 meeting.

Parcel (shaded yellow) requested to be zoned as R3 (townhouse dwelling district). The blue boundary delineates the Malletts Creek watershed.

The parcel for the Summit Townhomes development (shaded yellow). The blue line is the boundary between the Malletts Creek and the Swift Run watersheds.

The developer plans to build 24 attached residential units in four separate buildings, with each building between 80 to 160 feet in length. Each of the 24 units would have a floor area of about 1,300 square feet, and an attached one-car garage. The plan includes two surface parking areas on the east and west sides of the site, each with 12 spaces. To do this, the property needed to be zoned as R3.

March 18 had been the first time the site plan had been before the council. But the R3 zoning for the property, annexed from Pittsfield Township, had been previously considered by the council, and referred to the planning commission for re-review. The planning commission then confirmed its original recommendation for R3 zoning.

In more chronological detail, the zoning item had first appeared on the city council’s Jan. 7, 2013 agenda, when it received initial approval. However, at its Feb. 4, 2013 meeting, the council heard from about a half dozen people who spoke during the public hearing, in opposition to the zoning – citing concerns about congestion and overcrowding. So councilmembers voted unanimously to refer the zoning issue back to planning commissioners for another look. The council indicated interest in hearing more detail on drainage issues, and the level of recreational services offered in that general area of the city, as well as information about public safety issues.

At their Feb. 21, 2013 meeting, planning commissioners voted again to recommend that the site be zoned R3 – the same zoning they had previously recommended at their Nov. 20, 2012 meeting.

The project has been working its way through the city’s approval process for several months. The site plan had been postponed by planning commissioners in June of 2012 and again on Nov. 20, 2012, but was ultimately recommended for approval at the commission’s meeting on Jan. 3, 2013.

Before recommending the site plan, planning commissioners had previously recommended approval of annexation and zoning of the site in 2012. At their June 19, 2012 meeting, commissioners had approved annexing the 2.95-acre site, just east of Stone School Road, from Pittsfield Township into the city of Ann Arbor. The annexation was subsequently authorized by the city council.

Outcome: Without discussion at the May 6 meeting, councilmembers approved the site plan for Summit Townhomes.

Fourth Avenue Improvements

The council was asked to consider a $741,900 contract with E.T. MacKenzie Co., to make improvements on Fourth Avenue in downtown Ann Arbor between Huron and Liberty Streets.

The work is meant to deal with the poor pavement conditions as well as replace the existing 4-inch water main with about 320 feet of new 12-inch pipe. A stormwater management system will also be installed as part of the project, which will collect water in a stone reservoir under the street. Water in the reservoir will infiltrate into the ground from there. Besides construction of the street, the project includes replacement of the curb, curb ramps, and some sidewalk.

The work is to be paid from the water fund, the street resurfacing millage and the stormwater fund.

During the relatively brief deliberations by the council, Stephen Kunselman (Ward 3) inquired as to whether the Ann Arbor Downtown Development Authority was contributing to the project, and whether the DDA had been asked. City administrator Steve Powers indicated that the DDA had been asked and that the DDA was not contributing – because the Fourth Avenue project was not part of the DDA’s capital project budgeting.

Outcome: The council unanimously approved the contract for Fourth Avenue improvements.

The Arena: Liquor License

The council was asked to consider withdrawing a formal objection it had made at its March 18, 2013 meeting, to object to the renewal of the liquor license for The Arena – a bar located on the northeast corner of Washington and Fourth in downtown Ann Arbor.

According to the staff memo accompanying the resolution, The Arena paid all outstanding obligations to the city on April 30, 2013.

Those obligations had been the basis of the council’s objection to the renewal: The Arena’s failure to pay a combined $8,755 of 2011 taxes and an additional default judgment. The default judgment was made in the 15th District Court by then-judge Julie Creal in favor of the city for $1,659. It involved non-payment for police services.

The city’s objection had been forwarded to the Michigan Liquor Control Commission (MLCC) for final action. Because The Arena paid the taxes, the MLCC indicated a willingness to extend The Arena’s license, conditioned on the Ann Arbor city council’s withdrawal of the original objection by May 31, 2013.

During deliberations on the matter, several councilmembers expressed their concern about the amount of time and legal resources The Arena had consumed from the city by delaying its payment as long as it did.

Outcome: The council voted unanimously to withdraw objection to The Arena’s liquor license renewal.

FY 2014 Budget Hearing

Three public hearings related to the FY 2014 budget – on fees for the public services, community services and public safety services areas – did not draw any speakers. The main hearing on the budget, however, had more participation.

Thomas Partridge said better thinking was needed on issues of homelessness and those who are disadvantaged.

Former city councilmember Jean Carlberg urged the council to add to human services funding.

Carole McCabe, executive director of Avalon Housing, and Julie Steiner, executive director of the Washtenaw Housing Alliance, both highlighted the need for affordable and supportive housing, especially in light of reduced funding due to federal sequestration.

Jeff Hanyer Hayner drew a comparison between downtown Springfield, Illinois, and the possible future of downtown Ann Arbor. For all the money that had been spent on downtown Springfield, they couldn’t keep it from turning into a ghost town. He noted that Ann Arbor doesn’t have a great amount of affordable housing, so that’s something that needs to be considered when deciding what to do with money that might come back to the city from the DDA. What are we going to do differently in Ann Arbor so that it stays vibrant and doesn’t have a feeling of decay? he asked.

Rita Mitchell thanked the council for its decision to remove expenses for a train station from the capital budget. She’d followed that issue since 2009, she said. She remained concerned that there was a continued focus on parkland as a possible location for a new train station. She noted that Amtrak owns the current train station and provides a functional station. She wondered why the city would build a new station for Amtrak, at a cost of $44 million.

Alan Haber allowed he had not studied the budget, but said probably a lot of people hadn’t. He highlighted the need for housing of low income and very low income residents. He called on the council to dedicate the gross proceeds of the sale of the Fifth and William city-owned parcel (the former YMCA lot) to affordable housing, not just some of the net proceeds. [For an account of the city council's policy on proceeds of land sales, enacted in October 2012, see "Proceeds of Land Sales: Mostly Case-by-Case."]


The topic of appointments to city boards and commissions arose in a few different ways at the May 6 meeting. During the public hearing on the Ann Arbor Downtown Development Authority ordinance revisions, Mark Koroi pointed out that none of the members of the downtown citizens advisory council had current appointments. That group exists, based on the state enabling legislation for downtown development authorities.

The meeting’s agenda included nominations for re-appointment of all those members.

Another nomination of interest on the agenda was Susan Baskett to replace Jesse Bernstein on the board of the Ann Arbor Transportation Authority. Baskett currently is a member of the Ann Arbor Public Schools board of education, an elected position. Her nomination was not surprising, given that her name had previously been put forward to serve on the board of the newly incorporated Act 196 transit authority last year – before that effort was discontinued.

During communications time, Mike Anglin (Ward 5) alerted people to vacancies on the community corrections advisory board. That group is supposed to “formulate a comprehensive plan for the development, implementation, and operation of the community correctional services in Washtenaw County/City of Ann Arbor and to develop a plan for the administration, monitoring, and control of the community correctional services under the comprehensive plan.”

The council postponed action on the appointment of Stephanie Buttrey as a member of the greenbelt advisory commission (GAC). This item also had been postponed from the April 15 meeting. The council considered its appearance on the agenda as a nomination. Action will take place on May 20. Appointments to GAC are somewhat different from those to other boards and commissions, in that the nominations are made by the council as a body, not by the mayor.

During communications time in response to Koroi’s point made at the DDA ordinance hearing, Sabra Briere (Ward 1) picked up on his phrasing, which implied that the members of the downtown citizens advisory council had failed to re-apply for appointment. She didn’t think that was an accurate way to describe the situation. When someone confronts the expiration of their appointment on any board or commission, they generally don’t know, she said. She asked mayor John Hieftje: “Is there a reapplication process that I’ve missed?” No, replied Hieftje. He said that sometimes he has a discussion with someone about whether they’d like to be reappointed.

For the more prominent boards and commissions like the park advisory commission or the planning commission, Hieftje continued, it’s generally known when appointments expire. But for other boards and commissions, he said, he depends on a staff person or the chair of the body to let him know. That doesn’t always happen in a timely way, he said. He also said some people continue to serve on boards through their expiration date until they’re re-appointed.

Jane Lumm (Ward 2) said this issue had been examined in the last couple of years to see whose responsibility it is to take action – in the case, for example, when board members aren’t attending regularly. There’s a committee she serves on where a member had been absent for a year. It’s hard for the mayor to fill the position, if he’s not aware the member isn’t attending, she said.

Communications and Comment

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

Comm/Comm: Regional Fire Protection

Mayor John Hieftje and Sabra Briere (Ward 1), who’d both attended a meeting earlier that morning of the Metro Alliance, reported out to the council about that meeting. The focus of the Metro Alliance meeting had been regional cooperation for fire protection. Briere described how the mutual aid system currently works: Firefighters arrive at the scene and they determine if they need additional support – if those arriving units needed a “box alarm,” they’d call it in at that point. A “box alarm” is a predetermined set of equipment and personnel that gets deployed from surrounding jurisdictions.

What’s being proposed, Briere continued, is to implement something more robust – a Mutual Aid Box Alarm System (MABAS). It would trigger automatically – at the point of the first dispatch – all the mutual aid response. If the first-arriving firefighters on the scene determined that the mutual aid was not necessary, then other units would be called off. But that means if it’s a serious fire, you get quick response, Briere said. She also pointed out that when there’s a “box alarm” summoning mutual aid from other jurisdictions, Ann Arbor’s off-duty firefighters are also called. But that’s time we can’t afford to wait, she said, and citizens shouldn’t be expected to wait. After hearing about how long it can take for off-duty firefighters to arrive, she’d concluded that first responders are welcome – whichever jurisdictions they come from.

Comm/Comm: Human Rights, Affordable Housing

Thomas Partridge introduced himself as a resident of Ward 5, the 53rd District of the Michigan house of representatives and the 18th District of the Michigan senate. He told councilmembers they should place greater attention on affordable housing and supportive services. He called for protection of disability rights, human rights and for tax reform and zoning reform. Alluding to John Hieftje’s long tenure as mayor, Partridge said that if he had been mayor for 10 years, those kinds of issues would have been given primary importance. [Partridge did not mention it, but he'd taken out petitions to run for city council representing Ward 5 earlier in the day.]

Comm/Comm: Washtenaw Area Transportation Study (WATS)

During communications time at the start of the meeting, Chuck Warpehoski (Ward 5), who is the city council’s representative to WATS, noted that comment is being sought on long-range planning and budgeting.

Comm/Comm: Palestine/Israel

Henry Herskovitz described recent events in and around Israel. Israeli forces had attacked Syria and the U.S. supported the move, he said. He also cited news reports about statements made by Carla Del Ponte, a member of a United Nations independent commission of inquiry on Syria, who’d said that they’d not seen evidence of government forces using chemical weapons, but there were suspicions that rebel forces had used sarin gas. And near the Church of the Holy Sepulchre, Christians had been prevented by Israeli security forces from worshiping on orthodox Easter, he said.

Herskovitz told the council that on April 17, 23 people had staged an anti-Israel protest outside the Michigan Theater, on the occasion of a performance by an Israeli singer. The protest had attempted to educate local residents to the idea that atrocities couldn’t be concealed by the beauty of a performer.

Present: Jane Lumm, Mike Anglin, Margie Teall, Sabra Briere, Sumi Kailasapathy, Sally Petersen, Stephen Kunselman, Marcia Higgins, John Hieftje, Christopher Taylor, Chuck Warpehoski.

Next council meeting: The May 6, 2013 meeting will continue on May 13 at 7 p.m. in the council chambers at 301 E. Huron. [Check Chronicle event listings to confirm date]

The Chronicle could not survive without regular voluntary subscriptions to support our coverage of public bodies like the Ann Arbor city council. Click this link for details: Subscribe to The Chronicle. And if you’re already supporting us, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!


  1. By Mark Koroi
    May 11, 2013 at 11:07 pm | permalink

    “Mark Koroi pointed out that none of the members of the downtown citizens advisory council had current appointments……..[t]he meeting’s agenda included nominations for all those members.”

    The Agenda was apparently amended after I gave my public commentary on the issue. The appointments of the purported eleven “members” of the Downtown Area Citizen’s Advisory Council (DADAC) expired during the years 2008 through 2012.

    The problem with amending the Agenda at this juncture is that there is no Public Commentary in between the addition of this item to the Agenda and the consideration of the matter on May 13th – the only Public Commentary period available is after the May 13, 2013 Agenda matters are decided. This very possibly violates the public’s rights as citizens are imbued with rights under the First Amendment, Article I, Section III of the State of Michigan Constitution and the Open Meetings Act to attend and address open meetings of public bodies.

    The right to attend and address a public body is governed by the Open Meetings Act is provided under MCL 15.263, and subject to reasonable rules and regulations of that public body. My argument is that it is wholly unreasonable for City Council to amend its Agenda during a meeting after I raise an issue and schedule it for vote without an opportunity for intervening Public Commentary; such conduct of City Council violates the spirit, if not the letter of the Open Meetings Act.

    “(The Mayor)depends on a staff person or chair of a public body to let him know” if a board member’s term of office is about to expire. “That doesn’t always happen in a timely way” said the Mayor.

    Ray Detter’s almost 30-year tenure as DADAC chairman has been criticized and many members of the public have called on a fresh set of faces to fill seats on DADAC. The purpose of DADAC under the state enabling statute was to give residents of the downtown area a voice in the functioning of the Downtown Development Authority, however some feel Ray Detter has been a rubber-stamp for whatever the DDA and the Mayor wants. It was Detter who spearheaded the political candidacy of Eric Sturgis against Sumi Kailasapathy, and composed a glowing op-ed piece in why Ann Arborites in the First Ward should make Sturgis their choice for City Council in 2012.

    The citizens should be allowed a Public Commentary period before the City Council votes on who is appointed to DADAC and allow an opportunity for other members of the public to apply – especially since Detter claims only ten are currently sitting on the board and 15 seats are authorized.

  2. By jcp2
    May 12, 2013 at 6:51 am | permalink

    It seems like it was a very long meeting. “…the DDA has bent over backboards to partner with the city.” A subconsious portmanteau of backwards and waterboard?

  3. May 12, 2013 at 7:33 am | permalink

    Per #1
    The agenda / nomination packet I found waiting for me when I arrived at Council chambers on the 6th included a list of people to be nominated (through Council vote) as well as a list of those who had been nominated, and could now be appointed (through Council vote). This list included nominations for the Citizens’ Advisory Council, the Huron River Watershed Council, AATA and the Planning Commission.

    Generally speaking, this list of nominations and appointments is available at every Council meeting – although the names vary from meeting to meeting.

    The agenda was not amended to include the list of appointments.

    The process is: nominations are made at one meeting; appointments at a subsequent meeting (generally – and if not, the appointment requires a super-majority). Council members are provided the list of nominations at a Council meeting (it is generally not posted on the web site in advance); Council members see the list of appointments at the meeting, as well – but the appointments generally follow a nomination; those names are posted on the web site. Each Council member has the ability to approve or reject a nominee. Each on also has the ability – after the nomination – to review the nominations, consider the supporting documents, possibly talk with the nominee and vote against the appointment.

    As I understand it – by observation, at least – RE-nominations and RE-appointments follow the same procedures – but the Chair of the committee/board/commission, the staff members who work with the committee/board/commission, and the members of the group may be asked for advice about whether someone should be reappointed. Appointed members are, of course, asked if they wish to continue to serve. A list of terms (start and end dates) and term limits – if any – is maintained in the Clerk’s office.

    Members of boards, commissions and committees must be residents of Ann Arbor – a general rule, although a super-majority of Council may approve the appointment of a non-resident, given cause.

    If a committee/board/commission has vacant seats, the Chair, the Council, and the Mayor may all attempt to recruit new candidates for nomination. Some seats are very hard to fill; others may have multiple applications which must be considered. The Mayor has the responsibility of evaluating candidates for nomination; the Council has the responsibility of approving candidates.

  4. May 12, 2013 at 10:19 am | permalink

    Thanks for the information on appointments, Sabra. But since Council almost always votes unanimously to approve the Mayor’s picks, don’t all candidates get a supermajority? I can think of several examples of nonresidents serving on boards and I wonder how carefully that requirement is enforced.

  5. By Timothy Durham
    May 12, 2013 at 10:23 am | permalink

    When two big thinkers on urbanism get together: [link]

    You can lead a horse to water….

  6. May 12, 2013 at 10:28 am | permalink

    Re: “bent over backboards” To be clear, that was our mistake, not the speaker’s and we’ll correct it.

  7. May 12, 2013 at 11:18 am | permalink

    Re: #4

    While in most cases members of Council vote unanimously for all appointments, those of folks who don’t live in Ann Arbor are specifically called out as needing that super-majority.

    The same thing happens with other items on the agenda – most are passed unanimously, but some still need a super-majority. In all cases, the need for a super-majority is called out – either during debate/discussion or after the vote is taken. (Let the record show that, with 10 Council members present and voting, the vote was unanimous . . .)

    And of course, from where I’m sitting, I’m aware that the Mayor relies on the recommendations of many for the nominations. I don’t think of these folks as ‘the Mayor’s picks’ the way I did before I sat at the table.

  8. May 12, 2013 at 11:39 am | permalink

    Re: Koroi: “The Agenda was apparently amended after I gave my public commentary on the issue.” Briere: “The agenda was not amended to include the list of appointments.”

    I think those comments on the technical aspect of agenda “amendment” (as opposed to a “late addition” to the agenda) miss the general point of reasonable notification of matters to be discussed at a council meeting – which is, I think, Koroi’s actual point. By council rule, members are supposed to use best efforts to ensure that any items they add to the agenda are added before Friday, i.e., by the end of the day Thursday, in the week preceding a Monday meeting. This is a completely reasonable rule, as it ensures that if the rule is followed, then (except in extraordinary circumstances) the public has Friday plus two weekend days, plus all day Monday to orient itself to the items to be confronted by the council at its meeting.

    Now, one of the wonders of the Legistar online meeting management software is that it records on the .pdf version of the file the date an item was added to the agenda (if it’s added after the initial agenda goes live on the Wednesday, before the following Monday’s meeting).

    The set of nominations listed for the May 6 meeting was added on May 6. And I think that if you search through Legistar, you’ll find that late additions to the agenda for the mayoral nominations is pretty common. That is, mayoral nominations are added to the agenda outside the parameters set forth in the council rules. So while it’s technically true that the council didn’t “amend” the agenda during its May 6 meeting, the item was “added to the agenda” only on the day of the meeting – which seems to support Koroi’s overall point about adequate notification.

    Yes, the public still two weeks to look at the nominations before the council actually votes to confirm them at a subsequent meeting – so it’s not like the practice of waiting until the last possible moment to unveil the nominations eliminates any ability to comment on them before the council vote. But maybe it’s also reasonable to think that the nominations could be included in the Wednesday edition of the council agenda, instead of waiting until the last possible moment.

    It would also be nice if the applications of appointees could be routinely provided as attachments to Legistar so that the public could get an answer to the basic question of: Who are these people? Because councilmembers seem to get a different meeting packet pushed to them (which apparently includes the application or resume of those to be appointed) they might not even be aware that it’s not the same material that is publicly available.

    I think it’s fine to talk about how the nomination and the notification process are implemented – which seem to involve the mayor’s (possibly reasonable) expectation that chairs of the boards of commissions let him know when appointments are expiring and someone needs to be appointed or re-appointed. But ultimately, I think, the responsibility for expired appointments and non-renewal should be accepted by the elected official responsible for making them.

    And in this case, the responsible party is the mayor. It’s worth remembering that the mayor of Ann Arbor, in its council-manager form of governance, is essentially a councilmember “at large.” Other than being elected to be a member of the council for the entire city (not just a ward), the mayor has only a few additional duties: ceremonial head of the city, power of veto, powers during an emergency, and making appointments to boards and commissions. The privilege of making these appointments is the one extra duty of the mayor that seems like it might take up some time on a regular, ongoing basis.

    The pay differential between a councilmember (~$16K) and the mayor (~$42K) is about $26K per year. I think it’s reasonable to think of the better part of that differential – say $20K of it – as covering the practical job of ensuring that the city’s boards and commissions are fully staffed and functional. Legistar makes monitoring this a straightforward task. Or if that monitoring task exceeds the time available to the mayor, then it’s a task he could assign to his half-time assistant. [For example, will the 7-member local officers compensation commission be staffed up before the end of the year? This year is an odd-numbered year, so it's supposed to meet sometime before Dec. 31, 2013 to make recommendations on mayoral and councilmember salary – but that will be difficult with just two members who have current appointments.]

    In any case, the mayor is quite literally paid more than a councilmember, in part at least, to handle this specific duty of making appointments. So when the ball gets dropped, it’s the mayor who should step up and say: “I blew it; that’s on me; I’ll do better in the future.” What happened instead? At the meeting, Briere responded to Koroi by saying essentially: Don’t blame the members of the board or commission. And then Hieftje added some remarks that could be paraphrased as: Yeah, and don’t blame me, either.

  9. May 12, 2013 at 12:40 pm | permalink

    I have the impression that terms for different boards and commissions expire in different months – some in May, some in July, some in November, etc. This makes it difficult for the public to track this issue and to determine when openings might occur.

    One of the things the county BOC did when I was on there (and I assume still does)was to make all appointments expire in November, at which time there was a massive appointment process with extensive discussion of potential candidates (and sometimes, debate and lobbying on certain appointments). One could argue pluses and minuses but it made the process very clear and understandable. Other times of the year, the Chair might appoint (with BOC concurrence) people to fill in terms of those who had resigned for some reason – rare. The super-efficient Tammy Richards sent out notices to all expiring appointees so they could submit applications for renewal. We probably need an “appointment master” within the administration. I’ll assume the Mayor would participate at a review level. But if terms could be adjusted to some sort of consistency, it would be easier for everyone.

  10. By Junior
    May 12, 2013 at 2:37 pm | permalink



    The typed agenda made available to the public just before the City Council meeting did NOT include reference to Downtown Area Citizens Advisory Council re-appointments – only a general reference to appointments. So the public had no way of knowing that the CAC would even be raised that evening. The “packet” you get may be more than the public at large gets.

    However Messrs. Dettter and Kaufer of the CAC were down at the City Council meeting so someone told them what was going on.

    The flap over the CAC “members” having expired appointments came as a result of Patricia Lesko’s visit and investigation of City Clerk records about 10 days ago and the publishing of her findings on the website on May 1st. This apparently led to panic and damage control among the Powers That Be in municipal government.

    The people up for re-appointment include some whose term expired in 2008 – almost five years ago. From Ms. Lesko’s article, only about three persons are active on a regular basis in the CAC. WE have no idea if any of these persons are still active in the CAC – or even wish to be. There is no indication any of these person have submitted re-applications or seek re-appointment.

    The number of persons whose expirations were occurring on the CAC from 2008 onward create the impression that the CAC may have been opeating wthout a quorum for years and therefore had no authority to transact business and issue advisory resolutions to the appropriate public bodies.

    The state law authorizing the creation of the development authorities requires the establisment of a citizens’ advisory body to transnmit recommendations to both the development authority and also the governing body of the locality. In his case Mr. Detter’s appearances before City Council and the DDA for the last several months – and possibly years – had no proper confirmation since the council he sits on had inadequate representation to constitute a quorum. There is a very reasonable argument that the non-compliance of the City of Ann Arbor with respect to having a duly-constituted advisory body for the DDA voids the actions taken by the DDA.

    According to the article, the City Clerk is quoted as saying that Detter recently submitted a re-application – but about the other “members” whose terms had expired years ago – did they file re-applications? Don’t they need to?

    I would like to see the minutes of the CAC fo the last year or so published so we can see if quorums were noted and who exactly was attending these meetings.

    Dave Askins points are good, as well. Ultimate responsibilty for this situation resides with the Mayor. There should not be any action taken on these matters until the public has an opportunity to review and comment on this situation in a reasonable manner. The only reason these were jammed onto the agenda at the last possible moment was Ms. Lesko’s very enlightening article.

    I would personally like to see a fair appointment process where residents of the downtown area are given an opportunity to apply for vacancies instead of cronies getting rushed through an abbreviated appointment process.

  11. May 12, 2013 at 6:43 pm | permalink

    Junior (#10) says “I would like to see the minutes of the CAC fo the last year or so published so we can see if quorums were noted and who exactly was attending these meetings.”

    I just did a FOIA request to the DDA and to the City for those minutes, and presumably that response will come back in due time. I searched the City and the DDA web sites for a list of minutes and didn’t find any; that’s not saying they weren’t online, since sometimes it’s tricky to get a web search that unearths everything that’s published.

  12. By Patricia Lesko
    May 12, 2013 at 6:53 pm | permalink

    I hope Council members will hold up the reappointment of CAC members until there has been an opportunity to discuss why Ray Detter added members to the Committee (as he suggested in an email to me when I asked him if he knew his appointment had expired 6 months before he slammed the DDA Resolution as “irrational” under the cover of speaking as the chair of a committee to which he no longer belonged and on behalf of the “Board” of the CAC. Council needs to direct that the openings be “advertised.” The public needs to have an opportunity to give input concerning the fact that Detter has served for 28 years.

    The last Council record of adding anyone to the CAC is October 2009, when Detter and the Kaufer’s were appointed and confirmed or a 3-year term, so states the Council record.

    Term-limits were added via Council resolution, and I’d be interested to know why people whose 3-year terms are up are being reappointed.

    The CAC has been run like a private club, and Ray Detter appears in public and speaks on behalf of the “CAC Board” or “downtown residents.” It is really a sham, and one wonders if the Michigan Attorney General might be consulted, since a CAC is required by Michigan law, and Ann Arbor’s DDA has been in breach of the law for 6 months.

  13. By John Q.
    May 12, 2013 at 6:59 pm | permalink

    It’s the mayor’s job to make appointments. It’s the City Clerk’s job to track the terms of the members of committee and commissions. You would be hard pressed to find a municipality where this is the responsibility of anyone but the Clerk.

  14. By bob elton
    May 12, 2013 at 7:51 pm | permalink

    Re #7

    For what it’s worth, almost every time I was appointed to a commission or committee, it was by a 6-5 vote. Good thing I live in Ann Arbor, I guess.

  15. May 12, 2013 at 8:23 pm | permalink

    Re: [13] In Ann Arbor the city clerk does, in fact, track the terms – in the online Legistar system. There’s ongoing notification, to the public, which includes the mayor, about the status of the terms for all the boards and commissions. The Legistar system lets you download a report of vacancies on all boards an commissions. Resident Michael Benson (and now a member of the taxicab board) has occasionally, over the last two years, addressed the council during public commentary about the fact that the vacancies aren’t coded properly so that the vacancy report isn’t always up to date. For example, the current report doesn’t include vacancies for the taxicab board, but if you look at the taxicab board itself you notice it’s not fully staffed.

    At any rate, in Ann Arbor the mayor has the specific duty to notify the council of vacancies – at least for the set of boards and commissions defined in the city code. From Chapter 8, which covers many, but not all of the city boards and commissions:

    1:171. – General provisions.
    Such of the boards and commissions provided for in this chapter, as are in existence at the time of the adoption of this Code, shall be continued and the members serving thereon shall remain in office for the duration of the term for which they were appointed. Except as otherwise provided for by law, Charter or this Code, the following provisions shall be applicable to all boards and commissions of the city.

    (1) Vacancies. Any vacancy occurring in the membership of any board or commission shall be filled for the remainder of the unexpired term in the manner provided for original appointment to such board or commission.
    (2) Notice of appointment. The mayor shall notify council at least 30 days prior to the expiration date of the term of office of any person serving on a board or commission. The mayor shall place on the table the name of all reappointments no later than 60 days after the expiration date of the term of office.

    But the the downtown citizens advisory council is not covered in Chapter 8. And related to John Q’s point, the city charter does assign the clerk a duty to inform officers themselves when their terms expire:

    (f) Give notice to the proper officials of the expiration or termination of each franchise and contract to which the City is a party, and to city officers, personally, of the expiration of the terms of their respective offices and of any official bonds required of them;

    From that language, it’s not totally clear to me what the purpose of the clerk’s notice is – and that has implications for what the duty actually is. Is the purpose to make people aware that contracts and terms of office have expired, and are no longer in force? [Excuse me, but you need to stop showing up to meetings and trying to vote, because your term is over.] Is it to give some window of opportunity to deal with the situation before a contract or term of office expires? [Excuse me, but the city's contract with Recycle Ann Arbor expires in 30 days, so we should re-up or live with unemptied recycling carts.] Or is it to let someone know officially at the start, for their own records, when a term of office will be over? [Just so you understand, you'll serve on the planning commission just through June 30, 2015, unless you're re-appointed, and also, just so you know, an official bond won't be required.]

    In any case, I think it’s fair to say that the information is maintained well enough in the Legistar system by the city clerk’s office that the mayor is in a reasonable position to fulfill his responsibility under the city code to notify the city council 30 days in advance of an expiring term – and in light of those pending term expirations to make the appointments necessary to ensure the city boards and commissions are fully staffed. If the Chapter 8 appointments were handled “by the book” I think it would establish a culture in which all the other appointments were handled efficiently as well.

  16. May 12, 2013 at 8:39 pm | permalink

    To be fair to the clerk and/or mayor, there are 101 boards and commissions listed in Legistar, and no single report that I could find that spat out a list of everyone whose term was expiring soon. You’d have to comb through 101 pages and check each one. (Or perhaps Legistar has features hidden to the public that make this easy).

    101 boards and commissions! That’s a robust public process if I ever saw one.

  17. By JamesJefferson
    May 12, 2013 at 9:03 pm | permalink

    I know several people, people of good standing in this community, who meet the requirements for sitting on the CAC, and who wish to serve on the CAC. However, I was told by Ray Detter and Sabre that essentially that ship had sailed.. Ray told me they would be welcome on the board, but the chairs were full, and Sabre told me that all the seats were up for renewal, so they would have to wait (I paraphrase their remarks) until someone passed on their renewal or decided to vacate a seat. So… once again we see that attempts to interrupt the status quo go unheard by the powers that be.

  18. May 12, 2013 at 9:20 pm | permalink

    Re: “… and no single report that I could find that spat out a list of everyone whose term was expiring soon”


    Legistar lets you filter a master list of people in various ways here: [link]

    That’s the functionality I think you’re looking for. For example, type two dates into the “filter” at the top of the column and choose the “between” filter. Typing in 5/1/2013 and 6/30/2013 into the expiration of terms field and choosing the “between” option under the funnel yielded this output:

    Disability Issues, Ann Arbor Commission on Ian Scott Committee Start Date: 9/20/04 4/16/2007 5/17/2013
    Park Advisory Commission Tim Doyle 6/7/2010 5/17/2013
    Design Review Board Chet Hill Termed-out: 6/16/2013 6/20/2011 6/16/2013
    Design Review Board Paul Fontaine Termed-out: 6/19/2013 6/20/2011 6/19/2013
    Historic District Commission Thomas Stulberg Vice Chair 6/21/2010 6/21/2013
    City Planning Commission Bonnie Bona 7/16/2007 6/30/2013
    Greenbelt Advisory Commission (GAC) Tom Bloomer Commissioner Agricultural Rep. 7/1/2007 6/30/2013
    Greenbelt Advisory Commission (GAC) Dan Ezekiel CommissionerAt-Large 7/1/2007 6/30/2013
    Greenbelt Advisory Commission (GAC) Laura Rubin Commissioner Conservation Rep. 7/1/2007 6/30/2013
    Housing Board of Appeals Cindi Christiansen 7/2/2007 6/30/2013
    Housing Board of Appeals Melissa R. Goldstein 7/2/2007 6/30/2013
    City Planning Commission Eric A. Mahler 7/16/2007 6/30/2013
    City Planning Commission Sabra Briere Councilmember 12/3/2012 6/30/2013
    City Planning Commission Tony Derezinski 11/8/2012 6/30/2013
    Ann Arbor-Ypsilanti SmartZone Local Development Finance Authority Board Richard Beedon Ann Arbor City Rep. 7/1/2009 6/30/2013
    Housing Board of Appeals Kevin Busch 11/5/2007 6/30/2013
    Ann Arbor-Ypsilanti SmartZone Local Development Finance Authority Board Phil Tepley Ypsilanti City Rep. 7/1/2009 6/30/2013
    Ann Arbor-Ypsilanti SmartZone Local Development Finance Authority Board Carrie Leahy 1/7/2013 6/30/2013

  19. May 12, 2013 at 9:32 pm | permalink

    Re: #17
    Although I don’t know that I’ve ever spoken with you – I cannot put your name to a face – I believe that saying all seats are ‘up for renewal’ would be a stretch, even for me.

    I could easily have told you that I understood people who were currently serving were being considered for reappointment. That is an accurate statement – but until Monday night, I hadn’t seen a list, and knew very little about whose nominations would be considered.

    By statute, there are 15 seats on the CAC, I believe – and only 10 nominations on the agenda. Mr. Jefferson can certainly apply.

  20. May 12, 2013 at 10:08 pm | permalink

    Junior (#10), here’s one set of minutes from a forthcoming Council meeting sent in by the Downtown Area Citizens Advisory Council:

    [link to .pdf file]

    You’ll note from reading it that there’s no mention made of when the meeting happened, who was there, where the meeting was, what was on the agenda for the meeting, what comments were made by the members of the advisory council during the meeting, or what comments if any came from the public. In short, it’s nothing like what normal meeting minutes look like for normal public meetings.

  21. By Mark Koroi
    May 12, 2013 at 10:47 pm | permalink

    I also want to make it clear that the written Agenda copy provided to the public at the commencement of the meeting at 7:00 p.m. May 6th did NOT specifically mention the CAC with respect to appointments and it was the article that made me aware of the expiration of the CAC seats. The fact that Sabra Briere has recently conceded above that she was not made aware of the nominees for re-appointment until that night begs the question of the fundamental fairness of the whole process.

    Completed application forms should be expected of all seeking appointment or re-appointment to public boards and commissions and these completed forms should be available for public inspection several days prior to the vote by City Council so that informed citizen input can be solicited. This is especially so when Mr. Detter’s performance as CAC chairman has drawn so much controversy from various quarters.

    Several citizens approached Ray Detter during a City Council and asked him about Patricia Lesko’s article to which he replied he still considered himself the CAC chair until the City Council renewed his appointment – which made little sense to me since the City Clerk lists an October 2012 expiration date.

    I still take the position, as set forth above, that the Open Meeting Act will likely have been violated if these appointments pass without the benefit of the citizenry being afforded Public Commentary.

    What seems convincing to me is that someone at City Hall attempted a “jam job” to get these appointments voted in at the last minute before the public could respond appropriately.

    Some of these seats expired years ago and I am aware of no evidence that anyone but Detter has attempted to submit re-application materials to City Hall.

    The comments of Messrs. Elton and Jefferson are well-taken that the City Council confirmation process should not be, nor often is, a “rubber stamp” for the mayoral appointment process and that public input on the appointment process to the CAC and any opposition to Mr. Detter or any other nominee to the CAC should be welcomed and duly considered by City Council members.

  22. By Mark Koroi
    May 13, 2013 at 2:09 am | permalink

    @20. Edward: Check out the Open Meetings Act requirements of minutes that are to be kept in all public meetings and you may reasonably conclude the act was violated by the very minutes you have in your link.

    These minutes are required under Public Act 197 of 1975 that established the CAC to be filed with City Council, so someone should have made sure at that level that the CAC was properly preparing its minutes.

    Keep on digging!

  23. By Curious
    May 13, 2013 at 6:06 am | permalink

    While I’m growing weary of all the money misspent on affordable housing (the concept is nice, but the execution seems to lead to more waste than help), it seems like it will never cease to be a priority (which in itself proves how poorly it works).

    Given that, I DO hope that this focus on affordable housing being “forced” on the DDA (which has ALREADY given quite a bit of money for that purpose) does NOT include giving money to Avalon, and DOES include some kind of regular assessment of the performance of recipients of said money. Please see issue with Avalon/3-Oaks-owned North Main properties we are paying to demolish after paying Avalon to buy it, all for affordable housing.

  24. By Steve Bean
    May 13, 2013 at 11:22 am | permalink

    The comments of several council members and DDA board members regarding a preference for the two bodies to discuss the matter of the TIF capture rules as well as referencing dollar amounts that have been transferred or agreed to demonstrates the MO of city council in recent years. It’s a preference for agreements and negotiations over policy. I think that some of the objections by citizens are—without using the word explicitly—a call for policy to replace those other practices.

    This is one of the (apparently largely unrecognized) dysfunctional aspects of AA city government. The charge of certain city commissions is to make _policy_ recommendations to city council. The apparent preference of council for non-policy approaches (i.e., ‘getting things done’) clashes with those charges.

    A related dysfunction is the inability of council to interpret such input of citizens (and possibly even their own members) for what it is.

    A transition to a policy orientation would likely present challenges for both entities. However, without a change, this type of situation is likely to recur.

    Assuming that this assessment is accurate, there are several possibilities for a successful transition: 1) a new understanding on the part of a majority of council members, with the mayor being an important player, 2) turnover on council via elections, 3) leadership from ‘below’ by a majority of DDA board members to recognize the long-term benefits of clear policy to their organization’s interests, 4) citizen referenda, or 5) some combination of the above.

    Options 1 and 3 haven’t shown promise. Option 2 seems to be showing signs of potential.

  25. By Steve Bean
    May 13, 2013 at 11:39 am | permalink

    Another interesting aspect of the DDA/TIF amendments discussion (that may or may not qualify as dysfunctional at the council rather than the individual level) is the apparent belief that council members are not acknowledged as having the rightful power to propose legislative changes without some effort at “collaboration”.

    This isn’t very different from my initial observation of practice in #24, but the implications are different. I won’t comment on how this appears to have played out to this point on this matter, but it’s a misguided attitude that doesn’t make for good government. There are better ways of functioning.

    I think our best hope in the very near term is that newest members Sumi, Sally, and Chuck have a fresher perspective and might see such confused thinking for what it is and might have the ability to constructively influence their colleagues.

  26. By Mark Koroi
    May 13, 2013 at 2:47 pm | permalink


    Steve Bean wants to pursue “Option #2″!!

  27. May 21, 2013 at 2:58 pm | permalink

    #22 – I’ve received a full set of CAC minutes from 2012 and 2013. Not surprisingly, they all fail to fulfill the minimal requirements for minutes as set out by the Open Meetings Act. I’ve filed an appeal with the City Administrator, and hope to at least get a roll call of who has in fact been in attendance at these meetings if that is indeed available.

    I figure it’s a no-lose appeal; either the minutes get brought up to par with what’s minimally required by the Open Meetings Act, or the city admits that it’s been violating the OMA if I get denied.

  28. May 21, 2013 at 3:40 pm | permalink

    Re: [27] “I figure it’s a no-lose appeal …”

    The first step in arguing an OMA violation is to establish that the body in question is a public body that falls under the OMA statute. It would be worth reading through this 1977 opinion from the attorney general, with particular attention to the specifics of “advisory bodies” and then weighing what the arguments are that the downtown citizens advisory commission is or isn’t a public body falling under Michigan’s OMA: [link]

    But even if the downtown citizens advisory commission is not a public body under the OMA, the existence of the commission is enabled by the DDA Act, and that statute itself sets forth requirements that its meetings must be open to the public, be properly noticed, with a record kept of its meetings and information presented at those meetings. But the language of the DDA statute is more vague and general than the OMA’s Sec. 9 about what must be included in that “record” of the downtown citizens advisory commission’s meetings.

    By long-standing city policy enacted through a council resolution in the early 1990s, all boards and commissions of the city, whether they’re subject to the OMA or not, are supposed to conform with the Sec. 3 (basically on the openness of the meetings, but not including the section on minutes, which is Sec. 9) of the OMA to “the best of their abilities.”

  29. May 21, 2013 at 5:07 pm | permalink

    Re (27) & (28) Another question is whether the DACAC could actually meet in its official capacity after all of its members’ appointments expired in October 2012. Under either the OMA or the DDA act, if the committee has no members, can anyone be held responsible for failing to keep minutes or otherwise comply with the applicable statute?

    The enforcement provisions in section 13 of the OMA require an action to enforce the act to commence within 180 days of the OMA violation. So any violation at the October 2012 meeting would need to be challenged by the Attorney General or a member of the public by the end of April (if my count is correct). With no members after October, there would be no “public officials” on the DACAC to hold accountable under the OMA (if that is the applicable law).

    I did not look at the DDA act to see if it had an enforcement process or penalties for violations of the act.

  30. May 21, 2013 at 6:46 pm | permalink

    Re: [29] “The enforcement provisions in section 13 of the OMA require an action to enforce the act to commence within 180 days of the OMA violation.”

    That’s the timeframe provision for prosecution of intentional violation. In order to have the specific intent of violating the OMA, you have have a mental state something like, “Even though I know that I am required to do X under the OMA, I shall now decide consciously not to do X and to thereby violate the OMA.” I find it difficult to reconcile the idea of knowing the exact requirements of the OMA and then consciously violating the act, with the idea of not having the wherewithal to keep appointments to the body current. So I don’t think the idea of intentional violation is very plausible.

    As far as litigating to invalidate a decision made by a public body that’s subject to the OMA, it’s only select portions of the OMA that can be the basis of such an invalidation. Failure to produce adequate minutes isn’t one of them. And on top of that, the downtown citizens advisory council is not capable of, I don’t think, making “decisions” in the relevant sense under the OMA – that is of effectuating a public policy.

    And it’s still worth pointing out that it’s not obvious that the downtown citizens advisory council is a public body under the OMA, given the AG opinion to which I’ve linked above.

  31. May 21, 2013 at 7:18 pm | permalink

    #28, #29, #30 – well perhaps not a “no-lose appeal”, but pretty close. Appeals are free.

    Worst case would be “we don’t have these records, and we don’t have to have them, and we don’t intend to provide them in the future”. I don’t think that’s good public policy, but at least it elevates the question from negligence to policy.

    Better case is “we don’t have these records, and we will do a good faith effort to provide them in the future because they are required by city ordinance (even if not by state law)”, which is better policy.

    The current state of affairs is that of lack of “wherewithal” to keep appointments current, so the minimum test is to bring this all into the public eye and correct the minor technical flaws in the current system. There’s a broader question as to whether the CAC is representative of citizens of downtown, but it’s hard to know who actually shows up at meetings to see if that’s a real issue.

  32. By Steve Bean
    May 21, 2013 at 8:31 pm | permalink

    My recollection is that at least some city commissions have within their establishing ordinances/resolutions a provision that members remain as such until their term is renewed or replaced even after term expiration, perhaps even in the case of term limits. I don’t know if that is the case for the CAC.

    I think that would be worth investigating before continued speculation.

  33. May 21, 2013 at 9:13 pm | permalink

    Re: [32] “… provision that members remain as such until their term is renewed …”

    The Legistar description for DACAC doesn’t indicate a provision for that. But there are two general provisions in the city charter and in the city code on boards and commissions, which could allow for the continuation of service beyond the expiration of an appointment term. I don’t think the condition is met for either the charter or the code.

    Ann Arbor City Charter provision [not satisfied because there's been no consent of the Council given]:

    With the consent of the Council, an [appointive] officer may continue provisionally, in office, after the expiration of the term of office, until a successor has been elected or appointed and has qualified for and assumed the duties of the office.

    Chapter 8 City Code Provision [not applicable because the downtown citizens advisory commission not included in Chapter 8; also because it's been more than 60 days and the council hasn't extended the terms]:

    Tenure of office. No member of any board or commission shall be allowed to hold over for more than 60 days beyond the term of office fixed by ordinance whether or not a successor has been appointed except that council may extend the term for periods of 90 days upon the recommendation of the mayor and vote of at least 6 members of council.

  34. May 29, 2013 at 6:18 pm | permalink

    I figured it was a no-lose appeal (27), but I was wrong; the city denied my right to appeal, stating that they had provided me with a full response to my request and that under FOIA I had no right to appeal.

    The exact wording:

    “Only denials of requests for public records may be appealed under FOIA. Your FOIA request 13-161 was originally partly denied, however the City then provided supplementary records fully granting your request. As there is no denial, and as your request for an appeal based on the content of the records is not provided for under FOIA, the City cannot process your request as a FOIA appeal. Your concerns regarding the content of the records have been relayed to the City Administrator.”

    I think I may still have some rights under OMA, but given #28, I’m not sure how that plays out except in court.