For all the claims of attorney-client privilege, they certainly showed their hands, or at least what they thought were their hands–some even before all the cards were dealt. I would love to play poker with these folks some time.

On the other hand, Jane Lumm did exactly the right thing. This was an administrative decision and thus, it was up to Council to decide it based on “competent and material evidence.” Lumm, after taking in all the information presented, recited chapter and verse as to why she felt the project did not meet the standards for approval and voted no accordingly.

Ironically, the “competent and material evidence” standard is often cited in relation to the Hessee realty v. City of Ann Arbor case mentioned in the article. In that case, the City Council gave no specific reasons for rejecting a site plan–even making sarcastic remarks about their lack of reasons. Even so, the judge only awarded the plaintiffs their attorney and court costs, and ordered the City to issue a permit. No punitive damages, let alone damages in eight-figures.

Courts are loathe to interfere in local planning and zoning decisions and usually defer to municipalities to interpret their own ordinances. By providing a firm, concise and specific list of reasons in rejecting the site plan, City Council would have been on very firm ground, but would also have had the option to settle, if the developer chose to sue. (Burger King chose to walk away when they were rejected by Council in 1996.)

By repeating over and over that the site plan “met all requirements and they were obligated to approve it or suffer a huge legal loss” Council gave itself no credible options. Perhaps that’s precisely what some council members intended to happen.

The councilmembers that voted to approve the project cited recommendations from the City Attorney’s office.

I spoke to an experienced builder in the City Council chambers audience right after the vote. He said developers typically beat municipalities in court actions over projects like 413 E. Huron. He also pointed out that such legal proceedings often take 2-3 years and the City of Ann Arbor could have denied the project at the City Council level and most likely extracted further concessions from the developer if it had intended to agree to the project anyway. In this manner the ball had been dropped by the City Council by throwing in the towel so early.

Regarding the DCAC, I am hoping that the City of Ann Arbor makes a diligent search for applicants to fill the 15 seats that expired. The DCAC is mandated under state law to issue recomendations to the DDA and City Council. It should be a representative cross-section of students, young professionals and other residents that actually inhabit that area.

Some of the people re-nominated had their seats expire many years ago. Did they re-apply? Do they wish to resume being active on the DCAC?

The chairman of any public body should remind all members that their seat is about to expire as that deadline approaches. The chairman should also know how to prepare minutes of that public body in accordance with the strictures of the Open Meetings Act. The failures that may have occurred in the operation of the DCAC should be investigated and findings be made as well as needed corrective action proposed. Ray Detter often has spoken before City Council or the DDA without realizing his own seat had expired in October of 2012.

I would like to see fresh leadership and new faces running the DCAC from now onward. City Council should ensure that happens.