View looking northeast at Division and Huron. A chain link fence around the construction site has been installed in anticipation of construction for the 413 E. Huron project. (Photos by the writer.)

While there’d been some speculation earlier in the day that Christopher Taylor (Ward 3) would not be able to attend the May 13 session – which was a continuation of the meeting that began on May 6 – he was present for the meeting. And his support of the project was crucial in providing the six-vote majority it needed. Taylor was joined in the vote by mayor John Hieftje, Marcia Higgins (Ward 4), Margie Teall (Ward 4), Chuck Warpehoski (Ward 5) and Sally Petersen (Ward 2).

A decision on the site plan for the project, which will offer more than 200 apartments with more than 500 bedrooms, had been previously postponed on April 15, 2013, April 1, 2013 and March 18, 2013. The council recessed its May 6 meeting at around 11:30 p.m. just as it reached the 413 E. Huron site plan. So when the meeting resumed on May 13, the site plan was first on the council’s agenda.

Councilmembers who voted against site plan approval for 413 E. Huron gave pointedly specific reasons for voting no – citing traffic safety issues or failure to comply with aspects of the East Huron character district, or other aspects of the city code. It was a clear contrast to the approach a previous council had taken nearly 40 years ago in 1975, when then-councilmember Bob Faber explained his vote to deny approval of a site plan this way: “Finally, I will vote against this and I will move that the attorney and the planning director tell us why we voted no because obviously we don’t know yet and see what he can do with that in the court …” That decision had led to a losing lawsuit.

It was fear of losing a lawsuit that councilmembers cited in voting to approve the 413 E. Huron project.

After voting on the 413 E. Huron project, the council finished off the substantial number of remaining items on its agenda.

The council gave initial approval to changes to the city’s public art ordinance. The proposal includes removing the requirement that 1% of all capital project budgets be set aside for public art. Drawing some discussion from councilmembers was an additional change to which they gave preliminary approval. The additional change allows the council the flexibility to return money to its fund of origin, which might be set aside for public art in the FY 2014 budget. The council takes up the ordinance changes for final approval on June 3.

Another ordinance change to which the council gave initial approval is a change to utility improvement charges for undeveloped property. That will also appear on the council’s June 3 agenda for final approval.

In addition to initial approval of changes to those two ordinances, the council gave initial approval to rezoning of two different parcels – a property at 490 Huron Parkway and on South State Street. The property on Huron Parkway is proposed to be rezoned from R3 (townhouse district) to R1B (single-family dwelling) and would allow the currently vacant 1.22-acre site, located north of Ruthven Park, to be divided into three separate lots.

The State Street Center project is located adjacent to a new Tim Hortons restaurant, which opened last year near the intersection of State and Ellsworth. The rezoning request is from O (office) to C3 (fringe commercial). It would make the actual zoning consistent with the city’s official zoning map, which had been mislabeled. The site plan calls for demolishing a vacant 840-square-foot house and building a one-story, 1,700-square-foot building with a drive-thru Jimmy John’s restaurant facing South State Street.

An expansion to the Theta Delta Chi house on State Street near the University of Michigan campus was given quick approval after first appearing on the April 15 agenda and getting bumped to the May 6 agenda, when the council postponed all remaining items due to the late hour. The council didn’t reach the Theta Delta Chi item until the May 13 session.

And the council gave approval to two items affecting the Ann Arbor fire department – one to accept a federal grant that will pay for exhaust fume removal systems at fire stations, and another to appropriate funds to replace protective gear worn by firefighters.

The University of Michigan appeared in connection with two different agenda items. One resolution authorized a contract for the city worth more than $600,000 in connection with a vehicle-to-vehicle study – for which the UM Transportation Research Institute (UMTRI) won a $14 million federal grant. That won quick approval from the council.

The other item related to UM involved a right-of-way agreement for placing electrical conduit under Tappan Street – so that an emergency generator can serve a law school dorm. The resolution reflected a disagreement between the city and the university about whether the agreement was a transfer of land interest. The university insisted the council treat it as such a transfer, with an eight-vote majority requirement. The resolution received only seven votes, and thus failed.

Councilmembers passed two resolutions necessary to impose a special assessment on property owners along Miller Avenue, to help pay for construction of new sidewalks. And the council authorized a contract with Coca-Cola as the vendor for Ann Arbor’s city parks – but not without concern expressed by some councilmembers about the company’s human rights record and the nutritive value of soft drinks.

Receiving more discussion than they typically do were confirmations of mayoral appointments, in particular that of Eric Mahler to the board of the Ann Arbor Transportation Authority. Four councilmembers voted against Mahler, though that was still not enough to derail his appointment. Dissenters argued in part that it’s important to expand the total pool of people who are appointed to boards and commissions. Mahler has served two terms on the city planning commission. Dissenters also cited an alternate candidate, unnamed at the meeting, who was thought to be preferable to Mahler – because she would be able to represent the disability community better. The alternate candidate was LuAnne Bullington.

413 E. Huron

The site plan submitted by the owner of the project, located on the northeast corner of Division and Huron streets, is a mixed-use residential building with 216 apartments, two layers of parking, and retail space on the ground floor. A council decision had been previously postponed on April 15, 2013, April 1, 2013 and March 18, 2013.

Before that, the planning commission had voted 5-3 on the project, which did not achieve the 6-vote majority on that 9-member body necessary for a recommendation of approval. That vote came at the commission’s Feb. 5, 2013 meeting. It followed an earlier decision by the commission on Jan. 15, 2103 to postpone a recommendation, pending input from the Michigan Dept. of Transportation.

The development was presented as a “by right” project – and Ann Arbor city planning staff had offered their analysis that the project meets all applicable regulations.

413 E. Huron: Legalities of Zoning Decisions – History

At the May 6 session of the council’s May 6 meeting, a booklet highlighting nine legal points had been circulated to councilmembers, which several speakers cited in their remarks during the project’s public hearing. The booklet subsequently received a point-by-point response from the city planning staff as well as the developer. And responding to those responses, an addendum was provided to the booklet. In the addendum, a 1996 city council decision was cited in which a site plan for a Burger King restaurant was denied.

Drawing on previous Chronicle reporting from 2009 – in connection with the City Place site plan approval for a development on South Fifth Avenue – that Burger King proposal was also presented as a “by right” project. It involved a plan by Burger King to construct a restaurant at Ashley and Huron streets – 206 W. Huron. The council minutes of that meeting indicate that speakers at the public hearing cited traffic and pedestrian hazards from the drive-through. A main area of contention seemed to be the traffic flow in and out of the fast food restaurant:

Jonathan Reid, traffic engineer representing the petitioner, stated that his traffic study shows that external traffic flow, sight distances and stacking room at this location would not be a problem for the proposed use, and that the internal one-way traffic flow would not be hazardous to pedestrians crossing the driveways.

The apparent legal basis on which city council (on a voice vote) ultimately denied approval of the Burger King site plan was to disagree with Burger King’s traffic engineer and to cite point (c) below:

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. [Emphasis added]

That case contrasts with an earlier one from 1975, in which a decision not to approve a site plan seemed explicitly to be given no particular legal basis: Hesse Realty, Inc. v. City of Ann Arbor, a case reviewed in 1975 by the Court of Appeals of Michigan. The summary of that case includes a quotation from councilmember Robert Faber during deliberations on the project:

We are supposed to be acting on sound planning considerations. Quite obviously we are just running around picking at straws and seeing a piece of light here and seeing a piece of dark there. … Of course, I’m going to ask that the attorney and planning staff try to come up with something. … Finally, I will vote against this and I will move that the attorney and the planning director tell us why we voted no because obviously we don’t know yet and see what he can do with that in the court …

In that case, the court found that the city of Ann Arbor had failed to base its decision to deny the site plan on legitimate evidence, and therefore found in favor of Hesse Realty.

413 E. Huron: May 13 Council Deliberations

Sabra Briere (Ward 1) led off the discussion by calling the site a unique and significant location. She noted that a lot had been heard from outside expert voices. She asked the developer’s representatives to come to the podium, then questioned them about the traffic patterns that would result from construction of the building by noting that the developer had chosen to use an existing curb cut onto Huron Street. That resulted in an acute angle – 81 degrees.

The entrance onto Huron Street for the 413 E. Huron project from the site plan drawings.

Briere also expressed concern beyond the acuteness of the angle, noting that use of the existing curb cut put the driveway onto Huron opposite from a driveway access onto Huron from The Varsity, a high-rise residential building on the opposite side of Huron from 413 E. Huron. She asked the developer how the impact of the turning motions onto Huron would be addressed.

Conor McNally, Carter’s chief development officer, described the angle as 71 degrees but was subsequently corrected by another member of the development team, Earl Ophoff of Midwestern Consulting. Ophoff noted that it’s 81 degrees. That’s within the range allowed by Michigan Dept. of Transportation (MDOT) standards – which allows a 15-degree variance from 90 degrees.

Briere understood that people exiting the driveway are expected to turn right. But she wanted to know about the people who would be entering the driveway to access the underground parking. Ophoff explained they’d be coming from both directions. The intent is that mostly people would approach from the east and make a right turn into the driveway. But he allowed there’s no practical way to limit left-turn traffic for eastbound traffic. That could be done with signs, but people would ignore it. That can also be done by educating the residents of the building, he said.

Briere ventured that the amount of traffic in various directions would depend on who the residents are and where they wanted to go. But she’d read that the expectation was most residents would be exiting by turning right (west) onto Huron. If half of them really wanted to head east, she wondered how that would affect traffic on Division and Ann Streets. Ophoff explained that such residents would have two choices – one of them turning right on Division, proceeding to Ann Street and turning right again. That would add, during peak hour periods, about one additional car per six minutes on Ann Street, he indicated. The other option is to go one more block to Fifth Avenue and make a series of left hand turns.

Ophoff ventured that the main discouragement to residents from trying to make a left (eastbound) turn out of the driveway would be the difficulty in making that turn. During peak hours, he said, eventually you’d weigh putting up with a 20-second delay or just turn right and make a series of other turning movements. The pattern just works itself out. McNally also pointed out that the curb design mitigates against left turns out of the driveway, saying there’s a “pork chop” that will prevent exiting traffic from turning left onto Huron. A driver would have to jump a curb to do that, he said, or take a very wide angle to turn left.

Susan Friedlaender, an attorney for the developer, pointed out that MDOT is required to look at these issues when it approves a permit for a driveway. Briere countered by telling Friedlaender that even though the developer’s team might have answered the questions several times, the council would still ask them.

Stephen Kunselman (Ward 3) questioned whether the project complies with requirements of the East Huron 1 character district. He highlighted the language that describes how the building should be seen “in the round” and have open space in the front. From the city code:

East Huron 1 and 2. The East Huron Character Districts center along the eastern portion of the Huron Street civic corridor. These areas differ from most of downtown in that the uses are primarily institutional and are seen “in the round” with open space surrounding them. The intent for these districts are to continue the tradition of free-standing buildings with open space in front, incorporating design that includes signature building elements that give landmark qualities to properties.

Kunselman said the council had heard time and again that the project is “by right,” but in his view it did not conform to the requirements of the East Huron character districts. The building wouldn’t be seen “in the round” because it’s being built lot-line-to-lot-line, he said. And there’s no open space in front of the building. It also doesn’t continue the tradition of a freestanding building like Sloan Plaza. Kunselman stated: “I will not be supporting the project.”

Sally Petersen (Ward 2) led off her remarks by saying, “Wow, this is a big moment tonight.” She noted the council had spent months looking at the issue. Councilmembers individually, and as a group, had had so many different facts and opinions communicated to them, she observed. It’s tough to figure out the right thing to do, Petersen said.

Her concern early on was the amount of shading on the adjoining properties. Her understanding was that the slight reduction of some of the massing on the north side of the building resulted in no significant shading on two of the properties. For the property immediately adjacent to 413 E. Huron, she allowed, any structure over four stories would increase shading on the property. But for the homes of Norm and Ilene Tyler and of Ray Detter, she said, there wouldn’t be a significant increase in shading.

But she still had concerns about the overall massing of the building. It still seemed out of character to her. She asked if there was anything further the developer would be willing to do, to make the building more consistent with the other buildings on the block. Conor McNally, the developer’s representative, pointed to efforts made to reduce some of the massing by removing some of the units from the top of the building. He noted that massing had been an issue since the very start. A lot of money had been spent to change the building design in ways suggested by the design review board, he said – by changing the facade treatments and materials. More recently, a step had been taken to remove some density from the top of the building. The building is now considerably below the floor area ratio (FAR) allowable under the code. Further substantive reductions in density are unlikely to be considered, he said, adding that alternatives were considered in a lot of detail.

Councilmembers Jane Lumm (Ward 2) and Stephen Kunselman (Ward 3).

Jane Lumm (Ward 2) questioned whether the unit mix would actually attract young professionals – in addition to students – as contended by the developer. If a different unit mix had been pursued, that would have resulted in a better building geometry, she said. Conor McNally pointed out that 60% of the units are 1-2 bedrooms and that had stayed fairly consistent from the start. He felt the mix would attract graduate students and younger professionals. There’s nothing bigger than a four-bedroom unit, he noted. He pointed to 411 Lofts across the street on the south side of Huron Street, which he described as having a unit mix like that of 413 E. Huron. And 411 Lofts, he said, had a nice mix of young professionals, graduate students and upperclassmen. That’s the mix to which 413 E. Huron is meant to appeal, he said.

Lumm questioned whether that mix had an effect on the project’s ability to conform to the character district. McNally responded that this was more a function of the design of the building. He noted that he disagreed with Kunselman’s view that the project doesn’t conform to the East Huron character district, saying that the district contains a range of building types. The definition of the character district encompasses a range – from the very “stark” design of the Campus Inn to historic churches and historic homes. He felt the 413 E. Huron building fits into that range and is therefore consistent with the character district.

Lumm then addressed the issue of the retention wall on the Sloan Plaza side of the site. The response from city planning staff on this issue had been that the additional detail will be provided at the stage of obtaining construction permits, not at the site plan review. Lumm wanted to have the additional detail now, saying it was a unique structural situation. She didn’t think there was an adequate understanding of soil conditions.

In response, McNally noted first that the first four feet of the 413 E. Huron property won’t be touched either above or below grade. At about four feet in, the earth retention system for the underground parking structure will start. He then described the retention system that will be used to build the underground parking garage. He described vertical elements that will be drilled, not pounded, into the ground. Between the vertical elements, there will be lagging. [It's similar in design to the kind of system used to build the Library Lane underground parking garage earth retention system.]

McNally described how borings had been done by the developer’s geotechnical consultant to understand the conditions under the surface. And he pointed out that constructing buildings close together is something that happens frequently. He described vibration monitors than can be installed to immediately alert the construction crew. The foundation design details would be worked through with the city’s building department, he concluded.

Briere then took up the issue of the loading and unloading area and traffic on Division Street. She described the loading/unloading area as “not very big.” She ventured that trash collection would require a garbage truck to back out onto Division, which could cause traffic to back up on Division. She asked McNally to describe how deliveries would work.

Service drive diagram showing the 413 E. Huron trash pickup plan.

McNally pointed out that the loading dock was moved off the street at the suggestion of the design review board. It had originally been planned as a loading dock directly on Division, he said – which is similar to what North Quad and 411 Lofts have. He allowed that a large truck would not have the ability to make a full turn in the 20-foot wide area. So such a truck would need to back out or else back into the drive. But a smaller delivery truck, like a UPS truck, might be able to manage a three-point turn. He compared the configuration to that of other large buildings downtown. He said the project team had worked with the city extensively on the details of the garbage collection. He described how the truck would pull in nose-first and pick up the compactor to empty it.

Briere brought up how one of the Zaragon buildings and The Landmark building have difficulty with trash collection. She asked McNally what had been done to ensure there’s sufficient space for the trash, compost and recycling. McNally ventured that The Landmark and 413 E. Huron would be expected to generate about the same amount of trash. At The Landmark, they have a small compactor and 2-yard dumpsters, he said. So they have to stack them up. He thought the problem there related to where those dumpsters were stored, which made it “unsightly.” McNally described how the compactor at the 413 E. Huron building would be designed to use 8-yard dumpsters. He said they’d work with the property management to figure out the right frequency for pickup. There’d never be a situation where a dumpster would be stored out on the curb, he noted.

Briere asked what provisions had been made for recycling and composting. McNally allowed that for composting, he didn’t think there were any provisions. For recycling, there were bins and recycling rooms on every floor of the building, he said. That would be collected by building management, he said. Briere told McNally she expected him to come up with solutions for composting – because the city does food composting now, and expects to move toward plate scrapings, including meats and fats in the next year. She expected the project to have full composting capacity for its tenants. McNally ventured that would come mostly from the retail operation. Briere stated that it’s not unrealistic that the tenants will demand the ability to compost. She described efforts being made by University of Michigan students in this regard.

Chuck Warpehoski (Ward 5) and Mike Anglin (Ward 5).

Chuck Warpehoski (Ward 5) then brought up the issue of requirements for special exception uses. The question is whether the underground parking garage would require a special exception use. Planning manager Wendy Rampson fielded the question, by explaining that the parking structure use is a secondary, accessory use, not a principal use. Rampson explained that the key is that the parking use is customarily incidental to the primary use, which is residential. For whatever reason, she said, the city of Ann Arbor code has not historically stated that parking is an accessory use. So if you look through the zoning ordinance, you wouldn’t find that stated.

By way of additional background, part of the issue is the zoning code’s listing of permitted uses, special exception uses, and prohibited uses in the areas zoned D1 and D2. The listing shows separate items for “parking structure” and “parking lot.”

Parking Structure          S  Section 5:104
Parking Lot-Principal Use  S  Section 5:104

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The fact that the “parking lot” item includes the phrase “principal use” formed part of an argument made by Susan Morrison – who’s legal counsel for near neighbors of the project (Ilene and Norm Tyler) – in a May 13 letter to the council. Morrison argued that the phrase’s omission for the “parking structure” item indicates that the listing of “parking structure” is not intended to be limited only to a principal use. [.pdf of Susan Morrison's May 13, 2013 letter]

Rampson explained to Warpehoski that a property can have multiple principal uses. She illustrated the difference between an incidental use and a principal use by taking the example of a car wash that 413 E. Huron could hypothetically establish in the service drive. If the vacuum hoses and water were provided for residents of the building to service their own cars, the city would treat that as an incidental use, she said. If the facilities were meant for other paying customers, then the city would treat it as a principal use.

Sumi Kailasapathy (Ward 1) asked where customers to the retail portion of the building will park. She wondered if they would use the underground parking facility. McNally told her that the underground parking would just be used by the residents. He thought perhaps 8-10 spaces would be available at grade level in the service drive for retail tenants. A significant amount of parking will not be provided for the retail establishments, he said. The expectation is that the retailers will rely on foot traffic. The 6,500-7,000 square feet of retail space would most likely be split between two different retailers, he said, but that’s not certain. When Kailasapathy ventured that the amount of parking wouldn’t be adequate, McNally responded by comparing the approach taken by other downtown retailers.

Mike Anglin (Ward 5) and Sumi Kailasapathy (Ward 1).

Margie Teall (Ward 4) brought up the issue of the bur oak on the property to the north of the site and its critical root zone. She asked Rampson to explain how setbacks work. Rampson explained that setbacks are determined from “the ground to the sky.” She explained that the underground parking structure extends beyond the footprint of the building. Teall asked how the natural features part of the ordinance allowed the developer to intrude into the critical root zone of the tree. Rampson explained that the root zone is required to be identified on the site plan. But the code doesn’t require mitigation for off-site impact. However, the developer has proposed to do maintenance on the tree for five years, Rampson said, if the property owner is willing.

Rampson also explained that in the view of the city staff who reviews the natural features ordinance, the actual root zone of the tree is unlikely to be as expansive as indicated – because currently much of the area is already paved over. And previously a building had stood there.

Kunselman returned to the issue of principal use and accessory use for the parking structure component of the building. He highlighted the argument made by Susan Morrison that “parking structure” in the list was not limited only to principal uses. He argued that under the city’s view, any of the other uses could be accessory uses if they were a part of the building, and he doubted if that were the intent of the ordinance. Rampson ventured that “principal use” was included for “parking lot” use in the listing only for clarificational purposes. The chart was a new format for the staff, she explained. Kunselman contended that it was a matter of interpretation, and the council could send the project back to seek a special exception use permit.

Kunselman also returned to the issue of the East Huron character district and the open space description. Rampson explained that Kunselman was talking about the intent statement, not a regulation with numerical requirements – like streetwall height, massing and articulation. It’s an “explanatory piece,” she said. The intent statement might be used, she said, to evaluate whether a rezoning were appropriate. It’s not a regulatory component in the zoning ordinance, she said. Kunselman contended that the regulations conflict with the intent. Rampson responded by saying that it’s for the body making the regulations to determine that there’s an incongruity – and then to try to bring those incongruities into alignment. Kunselman replied that he had a hard time understanding why the intent statement would be given less weight than the other parts of the code.

Briere followed up on the character overlay district and the rules about setbacks and streetwall height. Although they were done at the same time, Briere couldn’t remember why the rules were done in a way that “don’t match.” Rampson questioned Briere’s conclusion that they don’t match. Rampson and Briere went back and forth on this issue.

Briere questioned the description that said there should be open space, in contrast to the numerical table, which indicated that the front setback was supposed to be 0-10 feet. She said she couldn’t understand how the council had allowed that inconsistency. Rampson explained that the council’s discussion had centered around the idea that it was desirable to pull buildings toward Huron Street, away from the residential neighborhood to the north. Briere ventured that the allowance of a zero setback was designed to maximize floor area ratio (FAR). Rampson countered that it was to allow a reasonable amount of depth for a building footprint.

Mike Anglin (Ward 5) brought up the issue of the criteria for site plan approval. The council is being asked to approve something based on a lot of presuppositions, he said. There’s too much confusion, he added, and there’s a lack of certainty. He cited the public safety, health and welfare clause. The welfare of many people would be affected, he said. He cited the possible decrease in values of nearby parcels.

Anglin asked about City Apartments at First & Washington, which is currently under construction: What would the height of the building be when it’s finished? Rampson looked it up: 104 feet. Anglin feared that the site plan for 413 E. Huron will change from the one that the council is approving. He raised the possibility that changes will be approved administratively – which was done with the City Apartments project. Anglin noted that for the City Apartments project, changes were made as a result of the hydro-geologic conditions that were discovered.

Anglin wanted to make the health, safety and welfare clause the primary consideration. He’s heard too many things that seem arbitrary and conflicting. MDOT’s approval didn’t mean much to him, Anglin said, because the city is responsible for the safety of its residents, not MDOT. Anglin felt that the developer had ignored public input as well as many of the city’s master planning documents. The council has a right to speak out for the people of the city, he said.

Petersen referred to previous public commentary on May 6: What will be your legacy? She was baffled that the parcel wasn’t zoned D2 back in 2009, and instead was zoned the higher-density D1. The legacy began in 2009 when it was intentionally zoned D1, she said. Even if a lawsuit were won by the city, she said, that will cost the city a lot of money. She worried about the long-term consequences of a lawsuit, when the university is buying up city land. She feared a legacy of ill will from developers. Literal hisses came from the audience at that point. She had prefaced her remarks by saying that she knew it would be unpopular with many people in the room. She also feared that failure to approve the project – viewed in the longer term – would go against the council’s priorities of fiscal responsibility, economic development and affordable housing.

Petersen stated that she continues to be disappointed in the massing of the building and would encourage the developer to reduce the massing.

Stephen Kunselman (Ward 3).

Kunselman came back to the issue of setbacks: The developer has the ability to move the building back 10 feet, he ventured. Rampson confirmed that Kunselman was right – as Division and Huron are both secondary streets. Kunselman allowed that moving the building back would reduce the number of bedrooms. But moving the building back 10 feet would also allow the building to meet the intent of the character district’s description of open space in front of the building. Kunselman again stated he would be voting against the project.

Lumm also said she didn’t think the project conforms with the statement of intent in the East Huron Street character overlay district. She appealed to the criteria for site plan approval and said she found that the project hasn’t met all the standards. She adduced master plan land use access goals, among others, that she did not feel were met by the project.

Warpehoski reported that when he was first elected (in November 2012), this project was something he’d sat down with city staff to talk about. He said the design has come a long way since the originally proposed building, but he felt the building simply is too large for the area. In the various enforceable regulations in the code, he felt like previous councils hadn’t gotten everything right. He was not serving on the city council at the time, and he didn’t mean to say that he would have gotten everything right. The belief that not everything was right was a reason prompting him previously to vote for the moratorium. He described piles of papers and full email inboxes with communications from residents and the developers and their attorneys. He had listened to it all and had questioned it all. He’d weighed the risk. What level of risk was he willing to take?

Warpehoski cited Kunselman’s statement on a different occasion – when the council was deliberating on a possible moratorium – that Kunselman doesn’t like to gamble with other people’s money. That had been running through his head a lot over the last week, Warpehoski said. He added that he was not afraid of a lawsuit, but weighed the cost of losing a lawsuit. He referred to millions of dollars of damages, and called that “too rich for my blood.” He also feared losing the concessions in design that the developer had made. Either way, he didn’t see a good outcome. He called his anticipated vote “a very pit-in-my-stomach-sickening vote yes.” Warpehoski’s expression of his intent to vote for the project drew hisses from the audience.

At that point, assistant city attorney Kevin McDonald asked the council to amend the resolution to refer to the proper date of the development agreement, which the council did.

Teall described how she didn’t like the massing of the building but wasn’t willing to risk the taxpayers’ money. She called it the toughest decision. She said she didn’t want to try to assign blame – saying she thought the council would be blamed for something, either way. She thought there was merit to the consideration of legacy – on both sides. The legacy of being regarded as a city that’s toxic to economic development was also a risk, she said. “I don’t like a lot about this building,” she said. But she didn’t want to risk the taxpayers’ money. She said she would very reluctantly vote yes, but added “I’m not happy about it.”

From left: Marcia Higgins (Ward 4) and Sabra Briere (Ward 1).

Marcia Higgins (Ward 4) recalled the history of the A2D2 process and noted that it wasn’t done in a vacuum. She said that nobody got everything they wanted. She recalled the community consensus that density would be restricted to the downtown, which kept it out of neighborhoods. She described the tension that had played out between the planning commission and the council about which areas would be zoned D1 and which would be D2. “It’s very easy in hindsight to say we should have done this or we should have done that.” The council had done what it thought was right at the time, she said.

Higgins pointed out that some changes have been made to the project since it was originally proposed, saying that there’s less massing than the original proposal. She contended it never happens that everyone says: “Yippee, let’s build this building and we’re all for it.” There’s always friction where downtowns rub up against residential neighborhoods, she said, and you’ll never be able to satisfy everyone.

Higgins said she’d known many of the people for years who’d addressed the council, and said they’d almost swayed her. But she reported that after the last public hearing, she started hearing from a lot of people who wanted to see the building constructed. Why didn’t they come and talk to the council about that? It was because they didn’t realize that it was that big a deal, she explained. Not everyone participates in the same way.

Those who’ve been a part of the conversation in the council chambers over the last few months are well connected and are very concerned about how the city should look, Higgins said. But that’s not the only voice, she cautioned. There are 80,000 other people in the town who don’t always have the same viewpoint as those in attendance at the council meeting, Higgins said. She indicated she’d be supporting the project. She allowed that wouldn’t make those in attendance happy. She hoped the developer would continue to look at the project and make some additional accommodations. She had to weigh the opinions of the city attorneys and the city staff as well.

Following Higgins, Christopher Taylor (Ward 3) said his inclination was to say “what she said,” but he’d already prepared other remarks. Taylor acknowledged the various detriments that the project will cause – massing, shading, a poorly designed service drive and potential inconveniences in traffic. He described the tension between Huron Street, which can bear great density, and Division Street, which is residential. The A2D2 had tried to balance that tension. And he noted that the project satisfies the regulations – which he characterized as inadequate to embody the city’s desires.

Taylor stated that the council’s task is not legislative, but rather administrative, and he extended that to the idea that the task is actually judicial. The council should approach the issue as a court would and should strive to be impartial. That’s the council’s obligation, he said. The council’s role is sharply limited, he said. He would be voting for the project. He had no doubt who’d have the upper hand if the developer and the city came to blows. When the head, the heart and millions of taxpayer dollars are in conflict, he said, the head has to win.

He didn’t believe there was a justifiable reason for voting against the project. Taylor did not fear losing a lawsuit, he said, but he feared losing an eight-figure lawsuit. Taylor stated that his duty is unwelcome but also clear. The developer has chosen not to reduce the density of the project for only one reason, he said – for profit. “They should own it and admit it,” Taylor said. But he allowed it’s their right. He hoped the developer might bring forward an amended plan that reflects the idea of being a good neighbor.

Kailasapathy said she couldn’t fathom how the parcel was not zoned D2. No one is saying that the developer doesn’t have a right to build something there. But the developer is meeting only the minimum requirements, she said. She hoped the developer would go back to the drawing board. She indicated she’d be voting against the project.

Briere thanked her council colleagues for their coherent thought. No one is proud of this development, she contended. The council feels a little bit helpless, she said. A previous decision on a “by right” project resulted in City Place being constructed on Fifth Avenue, Briere noted. “This is a terrible way to make decisions.”

Briere called for evaluating the entire set of information the council has received. She found the project doesn’t meet all the requirements, and could cause a nuisance. While the project fit the limited numeric zoning regulations that are quantifiable, the intangible elements shouldn’t be ignored, she said. So she’d be voting against it.

Lumm then explained again why she’d be voting no. She echoed the code requirements cited by Briere that she thinks the project fails to meet. Among those, she highlighted the traffic issues.

Mayor John Hieftje complimented the opponents of the project. He stated that it was not a NIMBY opposition. He described how he’d worked to gain acceptance of a different plan that envisioned a 20-story building and scaling down as it moved toward Sloan Plaza. That would have been a “planned project,” he said. But that plan didn’t go forward. The building that has been proposed, he said, doesn’t honor the site. But he said his decision comes down to an unwillingness to take the legal risk. It’s too large a risk, with too small a chance of succeeding, he said.

Outcome: The council voted 6-5 to approve the 413 E. Huron site plan. Voting against it were: Mike Anglin (Ward 5), Sumi Kailasapathy (Ward 1), Sabra Briere (Ward 1), Jane Lumm (Ward 2) and Stephen Kunselman (Ward 3). Voting for it were: Marcia Higgins (Ward 4), Chuck Warpehoski (Ward 5), mayor John Hieftje, Sally Petersen (Ward 2), Christopher Taylor (Ward 3) and Margie Teall (Ward 4). A few in the audience expressed their displeasure at the outcome of the vote, calling out statements like “Shame on you!” and “Disgusting!”

Percent for Art Funding

The council was asked to take the initial step toward changing the city’s public art ordinance, so that capital improvement projects are no longer required to set aside 1% of their budgets for public art – up to a maximum of $250,000 per project.

The ordinance change would mean a fundamental change from the Percent for Art approach to funding.

The main change is to eliminate in the ordinance any reference to a specific percentage for art in a capital project budget. Also, art funds would not be pooled as they are now – which entails setting aside money from projects into which it would be difficult to incorporate public art. Under the amended approach, city staff would work to determine whether a specific capital improvement project should have enhanced design features “baked in” to a project – either enhanced architectural work or specific public art. The funding for any of the enhanced features would be included in the project’s budget and incorporated into the RFP (request for proposals) process for the capital project.

At the council’s April 1, 2013 meeting, a vote was taken to extend a moratorium on spending of public art funds – through May 31. The council had originally enacted the moratorium on spending at its Dec. 3, 2012 meeting.

The action to impose a moratorium came in the context of a failed millage proposal in November 2012, which was meant to provide an alternative funding mechanism to the Percent for Art approach. The millage proposal was put forward in part in response to objections that voters had not explicitly approved the Percent for Art mechanism, which taps all capital funds – even those deriving from fees and millages designated for other purposes.

At the Dec. 3, 2012 meeting, a committee consisting of Sally Petersen (Ward 2), Sabra Briere (Ward 1), Stephen Kunselman (Ward 3), Margie Teall (Ward 4) and Christopher Taylor (Ward 3) was appointed to recommend amendments to the city’s public art ordinance. The committee has met several times and has made recommendations on revisions to the ordinance.

Percent for Art Funding: Council Deliberations

Jane Lumm (Ward 2) led off deliberations by offering an amendment to the ordinance change. Her amendment would allow the council to amend the FY 2014 budget to return to the respective funds of origin some or all of the funds required to be allocated under the current ordinance.

Sabra Briere (Ward 1) indicated that the task force had left the budget issue alone – because the task force had hoped the ordinance change would be voted on sooner than now. Her understanding from talking to the city attorney’s office was that if the ordinance change were enacted before the start of FY 2014 – which is July 1, 2013 – then Lumm’s amendment to the ordinance would not be necessary.

Assistant city attorney Abigail Elias said that if the council wants to undo the FY 2014 public art budget appropriations made the following week on May 20, then the council would, with Lumm’s amendment, be able to do that.

Marcia Higgins (Ward 4) ventured that the FY 2014 budget could be amended at anytime during the budget year. Elias indicated that would be legally possible, but if the funds were appropriated, and then were used, it could be difficult to undo.

After some back and forth about the timing issue, the council voted unanimously to accept Lumm’s amendment to the ordinance change.

Briere noted that she and Petersen had worked to come up with a survey for the city’s Open City Hall on public art. It’s available now, she said.

Outcome: The council voted unanimously to give initial approval to the change in the public art ordinance. It will come back for final approval on June 3, 2013.

Utility Improvement Charges

The council was asked to give initial approval to changes in the way utility improvement charges are calculated. If the changes are given final approval at a subsequent meeting, the charges would be calculated differently for the next two years. That would give the city time to hire a consultant to give a more comprehensive review to the charges.

The charges are due when a single- or two-family property connects to water and sewer for the first time. The charges are paid by either the contractor/developer or the property owner, depending on who makes the request for a connection. [.pdf of connection charge comparison]

The action on improvement charges comes after the council had debated proposed increases to the charges at its Jan. 22, 2013 meeting and ultimately rejected the increase for this year.

Utility Improvement Charges: Council Deliberations

The item was introduced by Sabra Briere (Ward 1), who explained that she and Sumi Kailasapathy (Ward 1) had worked together on it and they’d been joined by Stephen Kunselman (Ward 3) as a sponsor. Briere said the goal was to make certain that Ann Arbor’s improvement charges are equitable and reasonable. Another goal was to make sure that all the improvement charges are consistent across the board.

The proposal, Briere explained, would generally speaking create an opportunity for infill development that did not result in a property owner having to pay improvement charges that totaled nearly half the cost of the lot to build on. As an example, she gave a parcel cost of around $100,000 with the improvement charges of around $42,000.

Kailasapathy cited the high cost of the connection fees as an obstacle to infill development. For water and sanitary sewer lines, she explained, repair and replacement is covered by the capital repair replacement portion of the user rates. It’s important to note that a lot what is connecting now is not going to pay for the operational costs of the plant and systems for treating or providing water or collecting or treating sewage, she noted. That’s fair, she added, because developed and undeveloped lots would pay for the initial construction of the connection, but only the developed lots would continue to pay for the maintenance costs of the infrastructure.

Under the ordinance revision, when you connect, you are only paying for the repair and maintenance portion of the costs that you haven’t paid up to that point, Kailasapathy said. The revised rates are reasonable compared to the previous rates, she said – about $10,000 compared to $40,000. She felt the city could do even better. Part of the proposal is to have a consulting firm come in and crunch the numbers to create an equitable solution for the future.

Jane Lumm (Ward 2) asked public services area administrator Craig Hupy to weigh in. He said that Kailasapathy had explained the ordinance revision really well. He thought that the improvement charges were due for a review. He was comfortable with what’s being proposed and with the review that would take place over the next two years – given Michigan law and national practices.

Mike Anglin (Ward 5) said he’d heard from a resident who’d invested in some property. The resident felt that through the years he’d satisfied all the requirements the city had imposed. Anglin wanted to know what the methodology was before 2004.

Hupy explained that the improvement charge was imposed without factoring in any cost forwarding or cost recovery for “the cost of money or of maintaining the investment over the years.” Anglin ventured that a lot that was worth $10,000 in the 1970s might have appreciated in value to around $100,000 and because of that increase in value, it would be required to make a significant contribution. Hupy responded by saying he wasn’t following Anglin’s question. The property value doesn’t factor into the contribution to the water and sewer system, Hupy explained, but rather to the general fund.

Anglin compared it to making a reservation at a hotel and not using the room – saying that you couldn’t be charged for that. When you pay your taxes that fund police and fire services, you’re not asked to reflect on the history of payments that you didn’t benefit from, he said.

Sumi Kailasapathy (Ward 1).

Responding to Anglin’s request for an explanation, Kailasapathy illustrated with an analogy of buying a car. As an example, she suggested that she and Briere were buying a car together. They each put in $10,000 to buy a car. Briere decides she’ll use the bus instead, but when she needs to use the car – say, five years from now – she’ll start using it. But Kailasapathy would use it daily from the start. That would mean Kailasapathy would pay for all the gas and parking and other expenses. But annually, to keep the car in good condition, Briere might contribute $500 for general maintenance. So five years later, when she doesn’t want to use public transit any longer, Briere and Kailasapathy would split gas and parking charges.

Under the revised ordinance, Kailasapathy explained, property owners would only pay something analogous to the annual maintenance. Previously, they were charged for the equivalent of the gas and parking charges as well – the depreciation.

Anglin then asked a resident, Steven Sivak, to come to the podium and share his experience. Sivak is an architect who is planning to build a house on Pomona Street. He described how there were 480 vacant lots in the city. He didn’t know how many of those were “bird sanctuaries” that weren’t big enough to support a house.

Sivak responded to Anglin’s questions. He told Anglin that the lot he’d purchased two years ago for $115,000 would have a $38,000 “improvement charge” in addition to the “connection charge.” “Assessment charges” had been imposed since the beginning of time. But in 2004, he said, then-public service administrator Sue McCormick had instituted improvement charges and connection fees. The connection fees accurately describe just the metering and the tap-in charges, he said. The improvement charges were a new item imposed on lots starting in 2004. The effect is that it’s too expensive to build on the lot. Houses in his neighborhood have values in the $200,000-$350,000 range, so a $40,000 improvement charge can’t be easily absorbed into that cost. That’s why last year only four lots paid the improvement charge and were developed. Sivak reported that Hupy had told him that.

Stephen Kunselman (Ward 3) said he’d support the ordinance change. He noted that while Sivak had described lots worth $100,000, over in Ward 3, which Kunselman represents, some of the lots themselves were worth only $40,000.

Briere stressed the point that if the policy changed, that simply meant the policy had been changed. You don’t fault somebody, Briere said, for paying less today than somebody else paid two days ago. Rates are adjusted all the time, she said. She said it gives the city an opportunity to look at bringing all the improvement charges together in a uniform fashion – for single-family or multi-family or commercial properties. Right now they’re not consistent, she said.

Marcia Higgins (Ward 4) got clarification about which properties the ordinance changes applied to – single-family and duplex, not commercial. Higgins recalled the discussion the council had had not long ago when it voted not to implement increases in the improvement charges.

Briere clarified that annexation charges were a completely “different kettle of fish.”

Outcome: The council unanimously gave initial approval to changes in the ordinance on utility improvement charges.

490 Huron Parkway Rezoning

The council was asked to give initial approval to a rezoning request for 490 Huron Parkway from R3 (townhouse district) to R1B (single-family dwelling).

Aerial view of 490 Huron Parkway, outlined in black. The major road running west of the site is Huron Parkway. The land on the far west of this image is the site of Huron High School.

If given final approval at a subsequent council meeting, following a public hearing, the rezoning would allow the currently vacant 1.22-acre site, located north of Ruthven Park, to be divided into three separate lots. City planning staff had recommended the rezoning, and noted that the adjacent parcel at 500 Huron Parkway is also zoned R1B.

However, the proposal did not win approval from the city planning commission at its Dec. 18, 2012 meeting.

At that meeting, planning commissioner Bonnie Bona said she couldn’t support the rezoning. With 70,000 people commuting into Ann Arbor each day, it didn’t make sense to build single-family homes in that area. “Single-family homes should be built in townships, where they don’t want bus service,” she said. Only six of nine commissioners were present – and because a rezoning needs six votes to achieve a recommendation of approval, the request received a denial on a 5-1 vote.

At the council’s May 13 session, Jane Lumm (Ward 2) reported that residents in the area support the rezoning. Questions had been raised about the stabilization of the hill. She thanked the staff for sending an inspector out to confirm the slope was stabilized.

Outcome: The council unanimously gave initial approval to the rezoning.

State Street Center Zoning

The council was asked to approve a rezoning request for State Street Center, near the intersection of State and Ellsworth. A site plan for the project has not yet received council action.

The project calls for demolishing a vacant 840-square-foot house on this site. In its place, the developer plans a one-story, 1,700-square-foot drive-thru Jimmy John’s restaurant facing South State Street. A one-story, 6,790-square-foot retail building will be built behind the restaurant. The driveway off South State Street would be relocated and widened. The site would include 39 parking spaces, as well as covered bicycle parking between the buildings.

Aerial view of State Street Center project near South State and Ellsworth.

The project is estimated to cost $900,000. The property, which is located in Ward 4, is owned by Jack Schwarcz of Oak Park, Mich.

The site plan approval would be contingent on dedicating a 50-foot South State Street right-of-way to the city prior to any permits being issued.

The development is located adjacent to a new Tim Hortons restaurant, which opened last year. However, there is no driveway connection between the two sites. Planning staff indicated that such a connection was encouraged, but is not happening at this time.

The project was approved by the city planning commission at its April 2, 2013 meeting. It had originally been on the commission’s March 19, 2013 agenda. At that time, the city’s planning staff recommended postponement after discovering that the city’s official zoning map had been incorrectly labeled. It showed the site as zoned C3 (fringe commercial). The developer had made plans based on that erroneous labeling. But during background research for this proposal, planning staff discovered that the site actually had been zoned as O (office) in 2003.

Outcome: Without deliberations, the council gave initial approval to the rezoning.

Theta Delta Chi

The council was asked to give approval to an expansion of the Theta Delta Chi house at 700 S. State. The property is located at the southwest corner of State and Monroe streets.

Aerial view of Theta Delta Chi property, at Monroe and State streets.

The city planning commission had recommended the project for approval at its Feb. 21, 2013 meeting. Commissioners also granted a special exception use for the building.

The item had been postponed from the council’s April 15 session. The April 15 meeting lasted until 3 a.m. – and all remaining items on the council’s agenda at that point were postponed until May 6, including the Theta Delta Chi site plan. The May 6 meeting was recessed and continued on May 13.

The proposal includes expanding the square footage from 12,386 square feet to 14,752 square feet by making an addition at the rear of the fraternity house. The property is zoned R2B (two-family dwelling district and student dwelling district), and the size of the lot would allow for occupancy of up to 50 people. However, the fraternity is not proposing to increase its current occupancy of 33 residents.

The new addition will include an expanded restroom and shower facilities, common space, a resident manager’s apartment, and a bike room with nine bicycle spaces. According to a staff memo, the project entails moving the driveway, which is accessed off of Monroe Street, about five feet to the east. To do this, the fraternity will need to enter into an agreement with the Ann Arbor Downtown Development Authority and shift two on-street parking meters a few feet to the east.

The project also will require several variances from the city’s zoning board of appeals, including: (1) permission to alter a nonconforming structure (due to height and setbacks); (2) variances from Chapter 59 (off-street parking) to reduce the number of parking spaces required and allow one parking space in the front open space; (3) a variance from Chapter 47 (streets) to reduce the drive opening width; and (4) a variance from Chapter 62 (landscape and screening) to reduce the conflicting land use buffer width.

Other changes planned for this project include converting a yard on the south side of the house into a large patio. That area is currently used for parking. A new shed for a dumpster, recycling carts, and bike storage is proposed near the southwest corner of the site.

The fraternity is adjacent to apartment buildings and across the street from the University of Michigan law school.

Deliberations on the site plan were scant. Sabra Briere (Ward 1), who also serves on the planning commission, encouraged councilmembers to support the project. She called it an excellent example of infill development, which was very respectful of the neighborhood. The developer is a fraternity, she said, and was looking to expand the floorplate.

Outcome: The council voted unanimously to approve the Theta Delta Chi site plan.

Hideaway Lane

The council was asked to approve a proposal to build 19 single-family houses on a 4.6-acre site on Hideaway Lane off Traver Road – near the city’s Leslie Park Golf Course. The planning commission had recommended approval of the plan at its March 19, 2013 meeting.

Aerial map showing the location of the Hideaway Lane project.

Action on the planned project’s site plan and development agreement had been postponed at the planning commission’s Feb. 5, 2013 meeting. At that time, the city’s planning staff had cited the need to resolve several outstanding issues, such as determining the project’s impact on the property’s natural feature and mitigation requirements. Traver Creek runs along the site’s western border.

Also needed was preliminary approval from the Washtenaw County water resources commissioner. On Feb. 5 the commission’s vote to postpone was 5-3, with dissent from Bonnie Bona, Kirk Westphal and Diane Giannola. The item had come up late in the Feb. 5 meeting – after 11 p.m., following a long discussion and public hearing on the controversial 413 E. Huron project.

At the commission’s March 19 meeting, the recommendation from staff was to approve the project’s site plan and development agreement, which the commission did unanimously. In separate votes, commissioners also: (1) authorized the project’s anticipated disturbance of the natural features open space, and (2) recommended approval of an alternative mitigation plan for the site.

The project is located on the site of a development that began in 2005 but was never completed – and the site plan for that earlier development had expired. Currently, there are nine townhomes and one single-family home on the property, as well as infrastructure for additional development. The site is zoned R4A (multi-family dwelling district). The proposed new homes would all be two stories with either two or three bedrooms. The planned project proposal calls for spacing the houses 10 feet apart. Because the city’s zoning ordinance requires a minimum building spacing of 20 feet, the spacing modifications allowed under a planned project are being requested.

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

At the council’s May 13 session, Sabra Briere (Ward 1) noted that it’s the third attempt to develop the parcel. The infrastructure is already in place – including the plumbing, electricity and the streets. It’s not a very dense project, she said. It’s planned as a single-family development. She said there are no sidewalks along Traver Road in front of this parcel.

Stephen Kunselman (Ward 3) wondered if sidewalks are required. Briere noted that sidewalks are considered an improvement and are not a requirement.

Mike Anglin (Ward 5) wondered if that meant not following the non-motorized plan for the city. He felt that should become a standard requirement for new developments.

Planning manager Wendy Rampson clarified that a sidewalk is proposed for part of the front of the parcel and for the interior. Mayor John Hieftje clarified that a resident of the development would be able to take an interior sidewalk and access a public sidewalk to go in a westerly direction.

Outcome: The council unanimously approved the Hideaway Lane project.

Fire Department Federal Grant

The council was asked to accept $87,876 in federal grant funding for the fire department. The grant, which comes from the Department of Homeland Security under the auspices of the Assistance to Firefighters grant program (AFGP), is for a specific project for which the local fire department applied.

The project involves installing vehicle exhaust capturing systems – so that diesel fumes don’t accumulate inside the fire stations. The federal grant requires a local match of $21,969 (25%). That local match is being made with money from the city’s general fund.

Outcome: Without discussion, the council unanimously approved receipt of the Homeland Security grant.

New Gear for Firefighters

The council was asked to authorize $150,000 worth of firefighter gear to be supplied by Phoenix Safety Outfitters.

According to the labor contract between the city and the International Association of Firefighters Local 693, the city is required to provide two sets of turnout gear for each firefighter – in accordance with National Fire Protection Association (NFPA) standards.

According to the staff memo, at least 20 sets of gear are due for scheduled replacement, and 14 more sets of gear are needed in order to equip seven new hires.

Jane Lumm (Ward 2) said she was happy to see both of the firefighter-related items on the agenda.

Outcome: The council approved the purchase of the firefighter gear.

$600K for UM Smart Vehicle Study

The council was asked to consider an agreement with the University of Michigan that would result in $622,884 for the city of Ann Arbor as a result of a much larger grant that was awarded to the University of Michigan Transportation Research Institute (UMTRI). UMTRI received a $14.9 million grant from the U.S. Department of Transportation to pilot the use of vehicle-to-vehicle (V2V) and vehicle-to-infrastructure (V2I) safety technology in the city.

The money will be used by the city of Ann Arbor to install telecommunications fiber, sensors and electronic equipment, as well as some network support.

The pilot study undertaken by UMTRI will be a large-scale test of connected vehicle technology that will take place over a 30-month period. Data will be collected through wireless communications between vehicles participating in the program and roadside equipment.

After the study, the city will own the fiber and equipment that was installed with the grant money.

Outcome: Without deliberation, the council voted unanimously to approve the contract with UM.

UM, City Right-of-Way Issue

The council was asked to grant a right-of-way occupancy for the University of Michigan to install conduits in Tappan Street. The purpose of the conduits under Tappan Street is to connect a new emergency generator to the Lawyers Club buildings at 551 S. State Street. The Lawyers Club and the generator are located on opposite sides of the street.

The item was treated as if it required an 8-vote majority – that is, as if it conveyed an interest in land.

According to the staff memo accompanying the agreement, it could have broader implications – because the agreement on the Tappan Street conduit could serve as a template for long-term occupancy agreements. The city and the university legal staff appeared to have reached an understanding on how to disagree about the significance of the agreement. According to the memo:

The University has insisted that each occupancy agreement be processed as if the document grants to the University an interest in land, even if it doesn’t. The City does not believe that the occupancy agreement grants to the University any interest in land. As drafted, it grants to the University an interest in land only to the extent it grants to the University, by its terms, an interest in land.

Nevertheless, in accordance with the University’s request, but without agreeing that the agreement grants an interest in land, the document was submitted to City Council for approval with a requirement of 8 votes as if it granted an interest in land.

Sabra Briere (Ward 1) asked for an explanation of how the resolution did not confer any rights to the land under Tappan Street.

Assistant city attorney Abigail Elias explained that the city did not view the transaction as a land transfer. She explained that UM had wanted to prevent the council or some future council from acting in a “whimsical, capricious or arbitrary” manner and simply revoking the rights under the agreement “because it felt like it.” She allowed that she was exaggerating the university’s position at the negotiating table, saying the council had never acted in an arbitrary or whimsical way.

The city has the ability to control the rights of way, Elias said. The resolution accommodates the city’s rights, which are protected, she said. Briere responded, saying she did not see this as an opportunity for the university to come back and say they want the street vacated.

Stephen Kunselman (Ward 3) raised the issue of Tappan Street’s status as a platted road. He doubted it was possible even to convey a platted road. This kind of arrangement has been done with license agreements in other situations, Elias said, but the university wasn’t willing to do that.

Mike Anglin (Ward 5) wondered if the transaction could be done as a lease. Elias replied that a lease is an interest in land. Anglin asked if there was a similarity to fees that are received from telecommunication companies for equipment in the rights-of-way. Elias gave a general explanation of how those telecom fees work.

Outcome: The vote was 7-3, with dissent by Marcia Higgins (Ward 4), Mike Anglin (Ward 5), and Sumi Kailasapathy (Ward 1). Because Christopher Taylor (Ward 3) left the meeting early, the item had only seven votes in support. So the item failed to win approval.

Steps Toward Special Assessment for Miller Ave.

The council was asked to authorize two steps required to establish special assessments on properties on Miller Avenue in Ann Arbor. According to the staff memo accompanying the resolution, the properties will be special assessed for sidewalk improvements ($5,976) and curb/gutter improvements ($3,429) totaling $9,405.

One of the resolutions directed the city assessor to prepare a special assessment roll. [.pdf of table showing parcels and amounts] The second step was to set a public hearing on the matter – for June 3, 2013.

Outcome: With scant comment, the council approved both resolutions.

Contract with Coke

The council was asked to act on a recommendation by the Ann Arbor park advisory commission – made at PAC’s April 16, 2013 meeting – to approve a five-year contract with Coca-Cola Refreshments.

A 10-year contract with Pepsi Bottling Group of Michigan is set to expire in June of 2013. In vying for the new contract, only two companies responded to an RFP (request for proposals). According to a staff memo, the other bidder was disqualified after failing to meet the bid deadline. The memo did not name that company, but deputy parks and recreation manager Jeff Straw told commissioners at the PAC meeting that it was Pepsi who had missed the deadline.

The new contract will cost the city an estimated $25,000 annually for non-vending items, but the city expects to generate $47,500 in revenues from the beverage sales. In addition, Coca-Cola Refreshments will provide an annual sponsorship fee of $10,000 to the parks and recreation unit, and give a 96-cents-per-case rebate on each case that’s sold. These funds will be used to provide scholarships to low-income kids for parks and recreation programs. The case rebate is estimated to bring in $700 to $1,000 each year for scholarships, according to Straw.

The company also will provide 50 cases of free product each year for public special events, and will sponsor four special events annually with product sampling and free giveaways. The firm also will provide recycling containers with credit for returnables.

Concessions and vending are located at Leslie Park Golf Course, Huron Hills Golf Course, Veterans Memorial Park, Buhr Park Pool and Ice Rink, Fuller Park Pool, Mack Indoor Pool, Gallup Park Canoe Livery and Argo Canoe Livery.

On May 13, Chuck Warpehoski (Ward 5) led off deliberations by saying that he’d support the resolution, because only one vendor had responded. But he shared concerns related to public health based on sugared beverages. His deeper concern related to human rights issues in Colombia about Coca-Cola, and environmental issues in India. He pointed to a UM student effort to remove Coca-Cola products.

Mike Anglin (Ward 5) noted that this was reviewed by PAC. He mentioned that the discussion by PAC had included an interest in pursuing local vendors. Community services area administrator Sumedh Bahl explained that the contract expires on June 6, 2013.

Sally Petersen (Ward 2) wondered if vending machines with either Coke or Pepsi would be possible for city hall. Not under this RFP, explained city administrator Steve Powers.

Stephen Kunselman (Ward 3) urged that a wider pool of respondents to the RFP be pursued. Jane Lumm (Ward 2) highlighted the sponsorship fee and the rebate per case that Coke would provide. It’s unfortunate that Pepsi missed the deadline, but “Coke’s coming through,” she said.

Marcia Higgins (Ward 4) lamented the fact that the council had relatively little flexibility to decline to approve the contract. She agreed with Warpehoski’s point about sugar beverages.

City administrator Steve Powers.

Powers said if council’s desire was to specify beverage types, that would need to be put into the RFP. Sabra Briere (Ward 1) wondered if the five-year term of the contract could be shortened. She felt that in five years, many people would have forgotten the conversation.

Petersen reminded people that Coca-Cola owned a lot of brands other than soda with sugar – including Dasani water and Minute Maid. Powers confirmed that the bestseller last year was Gatorade, followed by bottled water.

Outcome: The council unanimously approved the Coke contract.

Appointments

The council was asked to approve several appointments and was notified of several nominations for consideration at subsequent meetings.

Appointments: HHSAB, Commission on Disability Issues

The first two appointments were Sheila Steinman to the commission on disability issues, and a reappointment of Ingrid Ault to the housing and human services advisory board.

Other than a brief remark from Sally Petersen (Ward 2), who serves on the city’s commission on disability issues, the two appointments, which had been nominated at a previous meeting, drew no deliberations. Petersen pointed out that Steinman goes by the name “Re.”

Outcome: The council unanimously approved the appointments of Steinman and Ault.

Appointments: Housing Board of Appeals

For the city’s housing board of appeals, mayor John Hieftje had nominated Leon Moore as a replacement for Dick Fleece, who’s the director of Washtenaw County’s public health department. The board has a provision requiring a representative from the health department – and Moore was nominated to fill that role. Moore is not a city resident, however. That means his confirmation would require a seven-vote majority, under terms of the Ann Arbor city charter.

Hieftje led off discussion by mentioning that information had been provided by email about the nature of Moore’s appointment. By way of background, Stephen Kunselman (Ward 3) had indicated preference for an alternate candidate, which prompted a response from Hieftje, sarcastic in part, explaining the rationale for Moore’s nomination. [.pdf of email from John Hieftje to Stephen Kunselman] Hieftje mentioned that the board had some appeals that it needed to hear, so the appointment was important to be made.

After the deliberations on the AATA appointment (see below), Moore’s appointment was handled. Kunselman noted that there would be another vacancy. He got confirmation from Hieftje that Donna Tope – Kunselman’s preferred candidate – would be nominated to fill another vacancy.

Outcome: The council voted unanimously to confirm Moore’s appointment to the housing board of appeals.

Appointments: Ann Arbor Transportation Authority

Initially, the council had been presented with both Eric Mahler’s name as an appointee to the AATA board as well as Leon Moore’s name as an appointee to the housing board of appeals. The original intent was that these appointments would be voted on together.

Mike Anglin (Ward 5) began the discussion among councilmembers on both appointments with an apparent allusion to the appointment of Mahler, who is finishing out a second term on the planning commission this summer, though he will not continue in that capacity. Anglin felt that many of the same people were being appointed to multiple boards and commissions. That was of concern to him. He felt it might be appropriate to appoint a “handicapped person” to the board. He also felt it was important to consider who the leaders of the community were who might have people behind them, who could then be useful in bringing more community members to support the efforts of a particular board.

There were some applicants out there he’d encourage, Anglin said, particularly from the “handicapped community.” They represent a large percent of the users of the bus system and they’re in the most need, he said. That would make a strong statement to the rest of the community, he said – that the city is trying to use the AATA to support those who are less fortunate and who can’t drive themselves. He said he’d watched Mahler serve on the planning commission and Mahler had done a good job. But Anglin felt that others should be given an opportunity to serve as well. He ventured that perhaps the process of notifying people that openings were available was not effective. He suggested adding a section to the council agenda right after public commentary, for that purpose. For a board as important as the AATA board, he said, it’s important to find the best applicant instead of finding someone who is “willing to serve.”

Mayor John Hieftje responded to Anglin by saying he often spoke with members of boards and directors of organizations. And he indicated he’d been requested to find someone who was a minority and an attorney. With the retirement of David Nacht from the board – whom Mahler would replace – that left the board without an attorney as a member. Hieftje noted that Nacht had been instrumental in negotiating a contract with AATA’s union. Hieftje said he was also following through on a request to appoint someone with whom he had experience.

Stephen Kunselman (Ward 3) agreed with Anglin about the appointment process. He said he couldn’t support Mahler “at this time,” though he appreciated Hieftje’s goals in making Mahler the nominee. But he noted that the council had received an applicant from the “disability community” who was able and knowledgeable about transportation issues. Kunselman offered that the AATA board currently has a city staff member [transportation program manager Eli Cooper] who is not a city resident. If that person were to remove himself, then there’d be a place for Mahler and for the applicant from the disability community, Kunselman said.

Kunselman said he didn’t understand the need for an attorney on the board, when the AATA hires outside counsel. Given the “legal snafu” last November, Kunselman felt it made no sense to have an attorney on the board, because it didn’t work last time. [Kunselman was alluding to technical legal requirements associated with the incorporation of an Act 196 transportation authority, which eventually got no traction.] He suggested that Hieftje could put the appointment on hold to give Cooper a chance to resign. Otherwise, he’d be voting against Mahler, he said.

Sumi Kailasapathy (Ward 1) indicated agreement with the general sentiments of Anglin and Kunselman. She said it seemed to her that as the same names kept coming up, there seemed like a “professional class” of board and commission members. That itself has a negative impact. She heard people say that they weren’t in the “in group” so they wouldn’t bother applying. She questioned the idea of replacing a lawyer with another lawyer – given that the AATA hired its own legal counsel. Having a “disabled member” of her family – for whom she’d just obtained an ADA card – this is the place in local government where people’s needs can really be met. She noted that she sometimes uses the bus to get to work and she sees that a lot of people who are disabled use AATA buses. So she wanted to wait until someone from the disabled community could be appointed.

At that point, the votes on the two appointments – to the housing board of appeals and the AATA – were separated so that councilmembers could vote differently on the two appointments.

Jane Lumm (Ward 2) drew out the fact that another vacancy on the AATA board also exists. Hieftje had nominated Susan Baskett for that vacancy, in an item that appeared on the agenda later in the evening. Lumm said she was torn because while Mahler is qualified, she felt that a voice representing the “disability community” is important. Lumm noted that she’d heard from people in Ward 2 about Route #14 changes – residents who had someone in their family for whom the service is inadequate. She felt like having a member of the disability community on the board would result in advocacy that could bring meaningful change. She reiterated that she was torn, saying Mahler did a good job on the planning commission.

Anglin suggested that if the council said to the “handicapped community” that they were not empowered, that would send a very strong message. It also sent a strong message to place someone on a board that really “has some bite.” The AATA board was such a board, Anglin said. We’ll all eventually probably need a bus, Anglin ventured. He uses the bus more now than he did before and really enjoys it. But most people were drivers and were lucky enough to be able to afford that, he said. In the handicapped community, he added, that’s not a possibility. Their opportunities are more limited. If they sat on the AATA board, they could bring their concerns straight to the board.

Sabra Briere (Ward 1) ventured that Sally Petersen (Ward 2) might have more insight into the “disabled community,” given her service on the city’s commission on disability issues. First, Briere ventured that this was a nomination that was in front of the council, but she was corrected by her colleagues. Briere allowed that the debate was, in fact, appropriate given that it was now at the confirmation stage. She noted that the people in front of the council were the only candidates under consideration – and they’d be voted up or down. Alternate candidates wouldn’t be put forward that evening, she ventured.

In light of Briere’s remarks, Petersen inquired when it was appropriate to debate – at the nomination stage or the confirmation stage? She got clarification that the debate the council was having now was happening at the right time.

Petersen then recalled that she’d looked up on the AATA website a description of the local advisory council (LAC), which is an advisory group to the AATA that provide recommendations on disability and senior issues. There’s a specific council to advocate for people with disabilities, she said, but the fact that she had to look it up on the AATA website indicated to her that the LAC is insufficient to represent those with disabilities who regularly ride the AATA buses. Re Steinem had been recruited to the city’s commission on disability issues because Steinem was riding the bus and met another member of the commission. So having the LAC as the sole place for advocacy for the disability community was not sufficient, Petersen said. She felt it’s important for the AATA to have someone with a disability on their board.

Hieftje indicated he was aware of the LAC. He said he’d do his best to find an appointee from the “handicapped community” – then self-corrected to “the less-abled community.” [Up to that point, councilmembers had been using a range of different terms.] Petersen told Hieftje that she’d prefer that he use the term “people with disabilities” rather than “handicapped” or “less abled.” Hieftje told Petersen that if she’d mentioned that preference when others had used the term, he would have caught up to it by then.

That night, however, Mahler’s name was before the council as the nominee – not anyone else, Hieftje said. He ventured that it’s not needed to have a person from a certain community on a public body, in order for that community to be represented on the body. He stated that the council itself does its best to represent everyone in Ann Arbor. Mahler himself is a minority, Hieftje said. [Mahler is African American.]

Chuck Warpehoski (Ward 5) said that as long as the council was discussing majority and minority communities, he ventured that no person represents the community to which they belong. He doesn’t represent the white community or the male community, for example.

Kailasapathy essentially echoed Warpehoski’s comments by saying she didn’t feel she could claim to represent the Asian community. But when you bring in people from a different community, you bring people with perspectives on issues that affect them. It’s a functional argument, she said.

Kunselman pointed out that Baskett, who was Hieftje’s other nominee to the AATA board, is also a minority. [Baskett is African American.] Kunselman would vote for Baskett, he indicated. She also had good qualifications in the area of transit needs for youth. Kunselman said he didn’t think Mahler would represent the “less abled” community as well as another person from whom an application had been received. Kunselman urged that Mahler be voted down and that Hieftje put forth the other applicant.

Christopher Taylor (Ward 3) was brief in his remarks: “Mr. Mahler is a man of skill, integrity and ability, and judgment.” He described Mahler as a trained professional. Taylor, an attorney himself, quipped that he feels it’s useful to have attorneys on boards. But he gave reasons for having them – including “issue spotting” and the incorporation of legal advice into deliberations. He also felt that it’s useful to have CPAs on boards as well as accountants and others. He’d support Mahler.

Briere addressed some of her remarks to Hieftje. She said it’s difficult to imagine a situation where the council would come to the table and be talking about a candidate as somehow unqualified, when those who are concerned about it have not communicated those concerns to him. So the council was having a conversation about the fact that somebody else might be better qualified or differently qualified, she observed. But the person in front of the council is Mahler, Briere said.

Briere noted that she’s not friends with Mahler, but has have served on the planning commission with him. If asked, she’d say she respects his judgment. But she’s not beholden to or intimate with him, she said. Briere thought he was qualified to serve on the AATA, which is the question the council is facing. She told Hieftje she thought she was hearing from councilmembers that they thought he should consider other factors in his future appointments. She felt Mahler brings the necessary skills to the table. She’d vote solely on whether she believed Mahler brought the necessary skills to the table.

Petersen agreed with Briere, saying that she doesn’t know Mahler or the other candidate – but she didn’t think it’s fair to vote against him because he doesn’t have a disability. That said, she told Hieftje, there was a lot of concern about the nomination and confirmation process. She cautioned against mixing that analysis with the confirmation of Mahler. She wanted to open the door to additional discussions.

Anglin wanted to know how many “handicapped people” had served in the history of the AATA board. He also wanted to know if the appointment was a standard 5-year appointment.

Outcome: Mahler was confirmed on a 7-4 vote with dissent from Mike Anglin (Ward 5), Sumi Kailasapathy (Ward 1), Jane Lumm (Ward 2), and Stephen Kunselman (Ward 3). As a coda, mayor John Hieftje stated that he would be looking for other candidates from the “less-abled community,” which resulted in a bit more back-and-forth on terminology.

Appointments: Nominations

Nominations put forward by mayor John Hieftje included Susan Baskett to the Ann Arbor Transportation Authority board and Paras Parekh to the city planning commission. Also included were the re-appointments of all members of the downtown citizens advisory council, whose terms have all expired. Hieftje also noted that Donna Tope was being nominated to the housing board of appeals.

The nominations will be on the agenda for a confirmation vote by the council on May 20.

The nominations to the downtown citizens advisory council generated discussion among councilmembers as well as public commentary at the end of the meeting.

Sally Petersen (Ward 2) wondered why so many of the DCAC members are married couples. Sabra Briere (Ward 1) ventured that service on the DCAC is an activity that couples do together.

During pubic commentary at the conclusion of the meeting, Mark Koroi reminded the council that he’d attended the May 6 meeting of the council and spoken during public commentary about the DCAC – and how the terms of the members had all expired. He’d learned after he left, he said, that it had been “jammed onto the agenda” the same day. He called it a big issue in the city that all the appointments had been expired. He complained that no opportunity had been made available before the council voted on it. [The council had received the nominations, but will not vote on them until May 20.]

Koroi pointed out that the DCAC is a required body under the state enabling legislation for downtown development authorities. He raised the specter of a lawsuit filed under Michigan’s Open Meetings Act. He was critical of the performance of Ray Detter, who’s acted as chair of the DCAC.

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.

Public Commentary

In addition to Mark Koroi, whose remarks are reported above, two other people addressed the council during public commentary time at the conclusion of the meeting.

Steve Baisheim characterized himself as a “walkaholic.” He described what makes areas walkable in the city and what makes people drive slow – narrow streets. He said he wanted to get more involved on various committees. He encouraged councilmembers to think about the idea of “mixed use.”

Thomas Partridge introduced himself as a Democrat standing for progress. He asked the public to call in and encourage mayor John Hieftje to step aside. He contended that there was a tone that allows and condones corruption and discrimination.

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: May 20, 2013 at 7 p.m. in the second-floor council chambers at city hall, 301 E. Huron. [Check Chronicle event listings to confirm date]

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During the lengthy public hearing at the city council’s May 6 session, some opponents of the 413 E. Huron project presented their case against the project in terms of a nine-point booklet they’d distributed to councilmembers.

On May 10, Ann Arbor city planning staff provided responses to the nine points. The nine points presented in the booklet  – titled “The Facts” – are summarized as follows, with a brief synopsis of the planning staff response in italics. In all cases, the material in the booklet, as well as the planning staff response, were longer than the brief overview presented here.

1. The 413 E. Huron site plan is not in compliance with applicable Michigan statutes. [It is correct that the Michigan Zoning Enabling Act guides the development of municipal zoning ordinances. ... [But] This section of state law does not provide any explicit requirements for site plans.]
2. The site plan is not in compliance with Ann Arbor city codes and ordinances. [Staff review has determined that all city code requirements have been satisfied.]
3. The developer’s Citizen Participation Report failed to include required detail. [Initial submission did not include responses to citizen comments; however, a supplement added later included those responses.]
4. Special exception use for underground parking was not approved. [The underground parking use is not a principal use, but rather an accessory to the residential use, and thus does not require approval as a special exception.]
5. Construction will kill a 250-year-old legacy Burr Oak tree. [This site does not meet the definition of Woodland per Chapter 57, and is therefore not a native forest fragment. The area covering the critical root zone of the tree after construction will be landscaped with other trees or shrubs as contrasted with the current conditions, which is a paved parking lot.]
6. The proposed building imposes a traffic safety hazard. [The traffic impact study was reviewed by the city’s traffic engineer, as well as the Michigan Dept. of Transportation, and was determined to meet all city and MDOT requirements.]
7. Allowable construction noise level is a health hazard. [Noise levels at construction projects are periodic, not constant, and the standards apply uniformly across the city for all construction projects.]
8. The site plan does not explain how the Sloan Plaza foundation will be protected from damage. [Site plans aren't required to provide engineered construction details of the same kind that will be required at the building permit stage.]
9. Lack of solar access on adjacent properties is a violation of city code. [The design guideline noted in the objection is not a code requirement, but a voluntary guideline to be used in designing a site.]

The developer has also provided a point-by-point response to the booklet in a letter to the city council dated May 10, 2013.

The 413 E. Huron site plan will be the first item considered by the council when the May 13 session of the May 6 meeting resumes.

A new public hearing on the project was started at the April 1 meeting, and held open so that it can resume on April 15. The council first considered the 413 E. Huron site plan at its March 18, 2013 meeting.

This brief was filed from the city council’s chambers on the second floor of city hall, located at 301 E. Huron. A more detailed report will follow: [link]