“Do not touch” reflects the attitude of some Ann Arbor homeowners toward their houses in the context of the city’s footing drain disconnection program. These class projects from Johanna Nader’s material science class at Slauson Middle School were on display at the Slauson media center. That’s where the most recent meeting took place for the city of Ann Arbor’s citizens committee that is advising the city’s sanitary sewer wet weather evaluation study. (Photos by the writer.)

The group’s charge includes making recommendations to the city council about the best way to manage the impact of rainfall on the city’s sanitary sewer system. Flows in the sanitary system are related to wet weather, even though the city has separate pipes for its sanitary and stormwater systems. That’s due to a variety of factors, including cracks in sanitary system pipes. Cracks can allow rainwater to soak into the pipes from above, and groundwater can come in from below.

But the factors that can increase the amount of water in the sanitary system during wet weather also include direct connections from stormwater systems into sanitary pipes. An example is a connection between a footing drain – part of a homeowner’s stormwater system running around the perimeter of basement foundations – and a sanitary sewer pipe. That’s a connection now prohibited by current building code, but still present in an estimated 16,000 houses in Ann Arbor.

If a deluge of water flowing into the sanitary system during a heavy rain becomes large enough, that can lead to two problems: (1) the extra volume can come up through the sanitary pipes in a homeowner’s basement, flooding the basement with a mixture of raw sewage and stormwater; and (2) the extra volume can overwhelm the city’s wastewater treatment facility, leading to the discharge of untreated sewage into the Huron River.

Over a decade ago, the city’s legislative response to this issue was to enact an ordinance that created a program requiring the systematic disconnection of property owners’ footing drains from the sanitary system. The city also created a way to pay for the work that uses funds from two sources – the city’s utility funds, or contributions from the owners of new developments. New developments help pay for the work because the city also created a program requiring that the developer of any new building in the city compensate for the additional load that the new building places on the sanitary sewer system. And the main way that developers choose to mitigate a new building’s added load on the sanitary system is to pay for footing drain disconnections.

So literal backups – of raw sewage in people’s basement, in the past and possibly in the future – were part of the basis for the committee’s work. But the group’s Jan. 9 meeting was devoted to “backups” in other ways as well. Assistant city attorney Abigail Elias presented the group with a couple of different assurances: (1) that the city would back the committee up if a lawsuit were to be filed against its members as a result of their recommendation; and (2) that she felt the city’s footing drain disconnect program had an adequate legal backup.

Meanwhile, rumblings that a lawsuit over the program could be filed continue to percolate to the surface.

Elias appeared before the group on Jan. 9 as a consequence of the committee’s interest in getting answers to questions raised by an email sent by Ann Arbor resident and attorney Irv Mermelstein on Oct. 29, 2013. In advance of the Jan. 9 meeting, which was originally scheduled for Dec. 17, 2013, Elias provided a written memo to the committee on Nov. 25, 2013. Elias’ memo responded to the arguments made by Mermelstein, which are based in part on the idea that the city’s program amounts to an unconstitutional taking of private property by the government.

And in a Nov. 27, 2013 email, Elias also provided written answers responding to follow-up questions from the committee about her memo from two days earlier. Those questions related to whether the citizens committee members had any legal exposure as a result of their participation in the committee. Elias was fairly emphatic in her written response, as well as in her remarks on Jan. 9, that she did not think such a lawsuit filed against the committee or its members could possibly have any merit.

Also surfacing during the committee’s Jan. 9 meeting was the notion of “backup” in the sense of a secondary system that activates if the primary system fails. The city’s footing drain disconnect program relies on installation of an interior basement sump – to collect water that gravity previously led away from the foundation through sanitary sewer pipes. The approach requires an electric pump to transfer stormwater collecting in the sump to the surface – because the interior sump would otherwise overflow, flooding the basement. The city’s program does not currently pay for a battery backup system for the pump. But Elias stated at the Jan. 9 meeting that she was exploring the possibility that the city could legally fund such a backup system.

Part of the committee’s discussion on Jan. 9 focused on how a backup system could improve peace of mind for homeowners who had a sump pump installed as part of the city’s footing drain disconnection program. That peace-of-mind discussion came in the context of a survey sent to 2,350 participants in the city’s footing drain disconnection program as a part of the current study project. Based on initial analysis of survey results presented at the Jan. 9 meeting, 40% of the 819 survey respondents reported an increase in anxiety after the installation of a sump and a pump as part of the footing drain disconnection program.

Finally, the meeting agenda included “backup” in the sense of backing up to review the committee’s mission. Resident Cy Hufano addressed the committee during public commentary made to the committee at the end of the meeting. Hufano described himself as “perplexed” that several months into the study, the citizens advisory group was still raising questions about their vision and purpose. Hufano also challenged the committee to make clear to themselves whether the city’s footing drain disconnection program exists to support developers at the expense of citizens.

This report is organized partly in terms of these various notions of “backup.” It begins with an overview of the physical mechanics of footing drains and how they work.

Footing Drains

The city of Ann Arbor has separate sanitary and stormwater conveyance systems. That is, the city has built separate pipes for (1) carrying human waste flushed down toilets to the wastewater treatment plan; and (2) moving rainwater from higher elevations to the Huron River.

However, during construction of new developments before roughly 1980, footing drains were frequently connected directly to the sanitary sewer pipes. Footing drains are permeable pipes buried around the perimeter of a foundation, roughly at the depth of a basement floor. The purpose of footing drains is to lead water – that soaks into the ground during a rainfall – away from the foundation of the building.

Those footing-drain-to-sanitary-sewer connections were convenient to make, because the footing drains and the sanitary sewers are typically buried at roughly the same depth. That means that gravity can be used to lead stormwater away from a building foundation by connecting footing drains into the sanitary system. Storm sewer pipes are typically not as deep, so gravity works against moving water from footing drains into the stormwater system.

Figure 1 shows a connected configuration.

Figure 1. Footing drains connected to the sanitary system. (Original illustration from screenshot of YouTube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

However, during very heavy rains, that connected configuration can conceivable lead to a volume of stormwater flow into the sanitary sewer system that it’s not designed to handle. That can cause two problems.

First, near the point where the extra water is entering the sanitary system, it can cause raw sewage to back up through the floor drains of basements. Second, farther downstream at the wastewater treatment plant, the amount of water flowing into the plant can exceed the plant’s capacity. That can result in only partially-treated wastewater being discharged into the Huron River. Such connections are now against city code.

The city’s footing drain disconnection program was established in the early 2000s in the context of basement backups and sanitary sewage overflows during heavy rainstorms. Two key steps of the procedure are to disconnect the footing drain from the sanitary pipe, and then to install a sump outfitted with a pump to transfer the water to a higher elevation, where it can then flow into the city’s stormwater system.

Figure 2 shows a disconnected configuration with a sump and a pump.

Figure 2. Disconnected footing drains with installation of a sump pump. (Original illustration from screenshot of YouTube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

The contrast between the pre-FDD configuration and a post-FDD configuration – a combination of Figures 1 and 2 – is shown in the animation of Figure 3.

Figure 3. Animation of contrast between the pre-FDD configuration and the post-FDD configuration. (Original illustration from screenshots of YouTube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

To see something close to a full-screen version of the animation, use this [link].

Disconnecting footing drains of individual buildings from the sanitary sewer system is not the only possible way to address the issue. Instead of trying to reduce the additional wet weather flow in the sanitary system, it’s possible to accept as a given that there will be a certain amount of stormwater entering the sanitary system during wet weather. And given that flow, the response would be engineer larger sanitary sewer pipes or to create temporary storage facilities to handle that flow. At the Jan. 9 meeting, one committee member ventured that this is the sort of solution the city should have pursued – because “the solution should be in the right-of-way, not in people’s homes.”

But those were not the approaches that were ultimately implemented by the city of Ann Arbor. Instead, the approach Ann Arbor took was to use footing drain disconnection, to reduce the amount of additional wet weather volume in the system.

The citizens advisory committee is now weighing a range of different approaches to the issue, while the current program is partially suspended. It will be up to the committee to make a recommendation – about whether to continue the footing drain disconnection program at all, and if so, in what form.

Historical Overview: Narrative

A basic sketch of the history of the city’s footing drain disconnection program (FDDP) begins in the mid-1990s with a series of backups of raw sewage into residents’ basements and overflows of sewage into the Huron River during heavy rainfalls. That obviously drew the attention of residents who had raw sewage sitting in their basements, but also of the Michigan Department of Environmental Quality.

The city council appointed a task force in 1999 to study the issue and make recommendations. Five localized areas of the city, where more than half of the basement backups had occurred, were targeted: Orchard Hills, Bromley, Morehead, Dartmoor and Glen Leven. The first two of those areas are adjacent to each other in the northeast part of the city. The other three are clustered in the southwest part of the city.

The initially recommended solutions in the five targeted geographic areas were a mix of footing drain disconnections (Bromley, Dartmoor, Glen Leven), upsizing pipes and creating storage facilities (Orchard Hills, Morehead). The final recommendations of the sanitary sewer overflow (SSO) prevention task force were for footing drain disconnections across the board.

In response to an emailed query from The Chronicle, assistant city attorney Abigail Elias indicated that it’s possible to contemplate a program that would require FDD in some areas of the city but not others, if there were a rational basis for doing so. The question and Elias’ response are as follows:

Question: The SSO report of June 2001 contains initial recommendations for implementation of FDDs in three geographic areas of the city but for storage and upsizing of sanitary sewers in two other areas. From a legal point of view, would it have been possible to establish an FDD ordinance that applied in just some areas of the city but not in others?

Elias: It might be possible to require footing drain disconnects in only certain areas of the City if there was a rational basis for defining each of the areas included or excluded. Because of the nature of flow in both sanitary and storm sewer systems, and based on our experience with heavy rains not necessarily repeating where they fall or where the flow has occurred and backed up within the sanitary sewer system, the areas designated for removal might have to expand or change. The City has shifted some areas in terms of priority for disconnect based on experience with certain areas having sanitary sewer backups into basements that did not have them during the 1998 and 2000 heavy rain events.

To support the program of footing drain disconnections, the city council passed an ordinance in 2001 that states the city can compel a homeowner to disconnect a footing drain from the sanitary system. The city also set up a reimbursement program to cover the cost of the plumbing work, and an option for a homeowner to pay $100 a month not to have the disconnection done.

The ordinance on FDDs was already in place by 2003 when the city signed a consent order with the Michigan Department of Environmental Quality on the issue of sanitary sewage overflows. The consent order required the city to disconnect at least 155 footing drains a year for four years for a total of 620. The 620 required disconnections were to be done in addition to 179 disconnections that had already been completed by the city by the time the consent order was signed.

Five target areas with the majority of basement backups citywide. The colored dots indicate locations of flow-monitoring meters.

The 2003 consent order also required the city to implement a developer offset mitigation program. That program requires developers of new projects to compensate for their additional load by reducing the flow elsewhere in the sanitary system. The option chosen by a developer to mitigate additional flow is not mandated to be footing drain disconnections elsewhere in the city. But as public services area administrator Craig Hupy put it at the Jan. 9 committee meeting, the “coin of the development realm” has become FDDs. Hupy described options like retrofitting toilets with lower-flow models as not being as cost-effective for developers as FDDs.

Based on information presented to the citizens advisory committee at its Aug. 21, 2013 meeting, as of July 1, 2013 the mandate of the consent order has already been satisfied with nearly three times as many FDDs as the consent order required. Specifically, 1,834 footing drain disconnections had been completed in the city’s FDD program by July 1, 2013. Another 805 FDD equivalents had been completed in the developer offset mitigation program.

Assistant city attorney Abigail Elias confirmed at the Jan. 9 citizens advisory committee meeting that as far as FDDs currently required by the MDEQ: “The state is not requiring it – that part of the administrative consent order is no longer in effect.”

In terms of the target geographic areas where the majority of basement backups had occurred back in the late 1990s, footing drain disconnections in two areas in the northeast part of Ann Arbor – Orchard Hills and Bromley – are about 99% complete. Footing drain disconnections in the southwest target areas of the city are all at least halfway done: Glen Leven (56%), Dartmoor (89%), and Morehead (63%).

On March 15, 2012 an especially heavy rain hit Ann Arbor, which caused extensive overland flooding in the southwestern part of the city in the vicinity of the southwest target areas. Questions were raised by residents about the possibility that the FDD program had exacerbated the overland flooding issue.

An Aug. 22, 2012 public meeting was held at the Pittsfield branch of the Ann Arbor District Library – located in the southwest part of the city. Some residents at the meeting complained that they were experiencing flooding of their previously dry basements after participation in the city’s FDD program.

The city council voted on Sept. 17, 2012 to partially suspend the city’s FDD program, and it remains suspended. The developer offset mitigation requirement remains in place. The council also authorized three water-related studies around the same time: (1) a stormwater study for upper Mallets Creek; (2) a citywide stormwater model calibration study; and (3) a study of wet weather on the sanitary sewer system.

The citizens committee that met on Jan. 9, 2014 is providing advisory input on the third study.

Historical Overview: Timeline

The timeline below is not exhaustive.

• 1997-03-31 200 gallons of sanitary sewer overflow (SSO) due to sewer blockage.
• 1997-09-05 Unknown amount of SSO due to sewer blockage.
• 1998-03-09 Unknown amount of SSO due to surcharging manholes at three separate locations due to heavy rains. Basement floodings also occurred.
• 1998-07-08 150-200 gallons of SSO due to sewer blockage.
• 1998-09-06 168,000 gallons of SSO due to bypass at outfall 002 due to heavy rains. Hydraulic pumping capacity exceeded.
• 1998-09-29 Unknown amount of SSO due to broken sanitary sewer line.
• 1999-03-30 Unknown amount of SSO due to sewer blockage.
• 1999-04-23 1.12 million gallons of SSO due to bypass at outfall 005 due to heavy rains.
• 1999-07-06 City council establishes an SSO prevention task force with specific membership of city staff and others, with five slots for residents of the five affected neighborhoods.
• 2000-07-10 Unknown amount of SSO on Swift Run Trunk Line due to heavy rains.
• 2001-07-06 Unknown amount of SSO due to sewer blockage caused by roots.
• 2001-07-09 City council is presented with final SSO prevention study report done by CDM. [.pdf of SSO report] [.pdf of SSO report appendices] The report includes initial recommendations for a mix of footing drain disconnections (FDDs) and upsizing of pipes and creation of storage facilities, but the final recommendations in the report are for FDDs across the board.
• 2001-08-20 City council approves FDD ordinance.
• 2001-10-17 2,000 gallons of SSO due to heavy rains causing flows to inadvertently enter influent channel at plant, which was under construction and overflow to storm sewer.
• 2002-04-22 200 gallons of SSO due to plugged sanitary sewer main.
• 2002-06-24 700 gallons of SSO due to force main break.
• 2002-09-03 City council revises FDD ordinance with respect to reimbursements.
• 2003-08-18 City council authorizes MDEQ administrative consent order.
• 2003-08-18 City council authorizes developer offset mitigation program as part of resolution authorizing MDEQ administrative consent order.
• 2003-08-14 Region-wide power outage and generator failure at wastewater treatment plant leads to 13 million gallons of partially-treated sewage being discharged into the river, 4 million of it undisinfected.
• 2003-09-04 MDEQ administrative consent order entered. [.pdf of MDEQ consent order]
• 2005-01-03 City council revises FDD ordinance with myriad other ordinances in context of citywide reorganization.
• 2008-06-16 City council increases FDD reimbursement cap from $3,700 to $4,100.
• 2008-08-07 City council revises FDD ordinance to allow for cap to be set by council resolution. [.pdf of city of Ann Arbor FDD ordinance]
• 2009-11-03 MDEQ consent order is terminated.
• 2010-06-07 Public commentary at city council about overland flooding near Village Oaks Court and Chaucer Court, located off Ann Arbor-Saline Road.
• 2010-08-5 [24 FDDs] City council approves Zaragon Place 2 with 24 required FDDs.
• 2011-01-03 [140 FDDs] City council approves contract amendment with CDM Michigan using money paid by University of Michigan associated with 127 required FDDs and 13 supplemental FDDs as a part of the Michigan Stadium renovation project.
• 2011-11-10 [41 FDDs] City council approves The Varsity residential development with 41 required FDDs.
• 2012-03-15 Rainfall of nearly 2 inches, all of which fell between 5 p.m. and 7 p.m. as measured at the city’s Jackson Road rain gauge.
• 2012-04-16 Public commentary at city council meeting about March 15, 2012 and other localized overland flooding events.
• 2012-05-07 Public commentary at city council meeting about March 15, 2012 localized overland flooding.
• 2012-09-17 City council suspends a part of the FDD program.
• 2013-02-04 City council authorizes contract with OHM for sanitary sewer wet weather evaluation study.
• 2013-03-04 [20 FDDs] City council approves 624 Church St. with 20 required FDDs.
• 2013-05-13 [59 FDDs] City council approves 413 E. Huron with 59 required FDDs.
• 2013-08-08 [5 FDDs] City council approves Kerrytown Place with 5 required FDDs.
• 2013-12-02 [1 FDD] City council approves Running Fit expansion with 1 required FDD.
• 2014-01-06 [8 FDDs] City council approves Montgomery Building expansion with 8 required FDDs.

Backup (Secondary Systems): Peace of Mind

At the first meeting of the citizens advisory committee, on Aug. 21, 2013, committee member Frank Burdick’s sentiments in favor of a win-win solution were fairly representative of the group.

Frank Burdick at the initial meeting of the wet weather sanitary sewer citizens advisory committee on Aug. 21, 2013. He’s describing how a gravity-based back-up system would work.

The win for a homeowner would include having peace of mind – that the disconnected footing drain configuration would not result in a risk of basement flooding.

What is the nature of that risk? After a footing drain is disconnected from the sanitary pipe, the water that collects in the drains is conveyed to an internal sump, and then pumped up and out to the surface – where the water eventually finds its way into the stormwater system. If the pump fails or the electrical power goes out, the sump will overflow into the basement and flood the area.

Losing electric power is a plausible scenario exactly when a pump might be called on to perform under heavy load – during a very heavy rainfall, oftentimes associated with electrical storms.

Burdick drew an analogy to the dam-in-dam-out controversy associated with Argo Dam a few years ago. That divisive issue was resolved by leaving the dam in place, but constructing the Argo Cascades, which allows kayakers to paddle from Argo Pond around the dam and continue on down the Huron River.

Several other committee members at the initial meeting also introduced themselves by saying they wanted to see some kind of compromise solution. Committee member Peter Houk, for example, said he was in favor of a solution that was acceptable to present and future participants in the FDD program.

Gravity-based backup system for sump pump sketched out by Frank Burdick.

Burdick sketched up one possibility for a compromise solution that relies on a specific plumbing configuration for the sump. The plumbing he sketched would – if the water reached a certain level in the sump – allow it to drain into the sanitary pipe. That way, if the pump fails or if the electricity goes out, a homeowner would have peace of mind that a gravity-based system would prevent the sump from overflowing.

At the Jan. 9 meeting, Burdick expressed some frustration that the city staff had not given his idea for the gravity-based backup system fair consideration. The facilitator for the study, Charlie Fleetham of Project Innovations, responded to Burdick by telling him that he thought the city had responded to his suggestion. Burdick characterized the response from the city as brief with no opportunity for dialogue.

Burdick said he wanted the city staff to get to the point of discussing what might work instead of simply concluding that something wouldn’t work. Fleetham reiterated that the city staff had concluded that Burdick’s design wouldn’t work. Burdick responded by saying that if the committee was really going to pursue a win-win solution, then there are technical resources in the city that need to participate more actively in the committee’s work. Though it was not made clear during the Jan. 9 meeting, the problem with Burdick’s design does not appear to involve its fluid dynamics, but rather whether it would meet city code.

At the Jan. 9 meeting, assistant city attorney Abigail Elias reported that making a battery backup system eligible for reimbursement under the FDD program is something the city is considering. She told the committee it’s a disadvantage to not have all the paperwork from 12 years ago when she’d initially researched the issue. [Elias was serving as city attorney when the FDD program was created. She held that position from 1996 to late 2002.] She told the committee that the legal research she’d done previously was not the kind of thing the city kept forever and ever. But she’s now taking a very serious look at whether there’s a reason not to be funding the battery backups.

A battery backup for a sump pump is not part of the building code, Elias said, so the city couldn’t require one. But Elias said her view is that if the battery backups are necessary for the sump pump to actually work and to function, then the city ought to be able to cover that cost. Elias said the city knew that backup systems are a concern – from looking at the data that’s coming back from a recent survey of participants in the FDD program.

The preliminary survey results were presented at the Jan. 9 meeting. The survey was sent to 2,350 participants in the city’s footing drain disconnection program and 819 people had responded by the time of the Jan. 9 meeting. [.pdf of preliminary, draft survey results]

Those results show many residents are very satisfied after participating in the FDD program, but many residents are also very dissatisfied. Several FDD program participants who’d previously had no basement water problems reported having water problems in their basements after the sump pump was installed. And several participants reported that their previous water problems have persisted even after participation in the FDD program. Anxiety about the installed sump pump was also an issue identified in the survey – that’s the aspect of the survey to which Elias alluded in her remarks.

But Elias said the city needs to make sure that it wouldn’t be getting into trouble by giving someone a backup system that exceeds code requirements and that violates some requirement in terms of who’s paying for it. “We would love to be able to cover the battery packs,” she said. That would be one more thing for people not to worry about, she noted. Elias indicated that the question of whether a battery backup system could be paid for by the city would be resolved by the time the committee made its recommendations – if FDDs are still one of the options the committee recommends.

Burdick seemed somewhat skeptical of the battery backup as a solution, saying that a gravity-based system is really the only way you can truly have a backup. He ventured that a battery would only last for a few hours, “and then you’re bailing your sump!” he said.

Legal Backup Issues: Citizens Committee

Abigail Elias of the city attorney’s office attended the Jan. 9 citizens advisory committee meeting in part to address concerns that had been prompted by a memo she’d written for the committee explaining why she thinks the city’s FDD program has a solid legal foundation. The memo drew questions about the possibility of a lawsuit being filed against members of the citizens committee.

Elias provided a written response to those questions in advance of the Jan. 9 meeting. [.pdf of Elias' response to questions about the committee's possible legal liabilities]

The three questions Elias answered were as follows:

1. Does the memorandum mean that the City legal staff now represents CAC members?
2. If the above is true, am I now prohibited from talking to other lawyers?
3. If the City is sued regarding this project, will I be required to support the City’s position even if I do not agree with it?

To summarize her responses briefly – written, as well as remarks made at the Jan. 9 meeting – the memorandum does not establish an attorney-client relationship between the city attorney’s staff and committee members. And the fact that Elias wrote a memo does not prohibit a committee member from talking to other lawyers. Further, if the city were sued, committee members would be eligible for representation, provided they responded to phone calls and emails and showed up for required meetings.

But Elias stressed throughout that she did not think a lawsuit of that type – filed against committee members over the performance of duties in connection with the committee – could possibly have any merit, and would almost certainly be thrown out of court at the start.

By way of background, the citizens advisory committee associated with the wet weather sanitary sewer study is a different kind of committee from other groups that are sometimes established by the city council for advisory purposes. For example, the pedestrian safety task force that the city council established last year through a council resolution included an application process, after which selected members were nominated to serve. Confirmation by the council of those pedestrian task force appointments is on the Jan. 21 city council meeting agenda.

The original sanitary sewer overflow prevention task force from the late 1990s was also established and partly populated by a council resolution passed on July 6, 1999. Membership of that original group was established partly through the resolution establishing the task force:

• Utilities Senior Engineer Peter Perala
• Utilities Field Services Superintendent Craig Hupy
• Acting Utilities Director Sumedh Bahl
• City Engineer Sabah Yousif
• Public Services Director William Wheeler
• Associate City Administrator Ronald Olson
• Huron River Watershed Council Executive Director Laura Rubin
• County Drain Commissioner Janis Bobrin
• Lee Roberts, plumbing expert
• One representative from each of the five affected neighborhoods
• An engineering professional

The city’s online Legistar records don’t reflect a subsequent city council action appointing the representatives of the five affected neighborhoods. But some of the subsequent meeting minutes of the task force reflect the following as task force members: Stephen Rapundalo, Barbara Bruemmer, Wendy Carman, Jim Nieters. Fran Alexander is mentioned as both a subcommittee member and the person handling public relations. [Those minutes also reflect a discussion of the desirability of having private contractors retain data, instead of the city, in order to prevent access to it via Michigan's Freedom of Information Act.]

The current citizens advisory committee was not established through a separate council resolution. Instead, a citizens advisory committee was part of the public engagement strategy in the scope of work for Orchard, Hiltz & McCliment Inc. approved by the city council about a year ago, on Feb. 4, 2013.

At the study’s kickoff meeting on April 23, 2013, an invitation was made for anyone to join the committee who wished to participate. And at the first meeting on Aug. 21, 2013, the meeting information packed lists 21 members of the committee: Kathe Atkins, Stan Baker, Mary Rinne Barnett, Peter and Marilyn Batra, Kathy Boris, Colin Breed, Frank Burdick, Vince Caruso, Joe Conen, Ted Dorr, Iris Floyd, Bruce Geffen, Thomas Holden, Peter Houk, Michelle Lovasz, Patricia Marten, Jim Osborn, Frank Pelosi, Frank Richardson, Beverly Smith, Mark Wagner and Matt Wherry. Not all of those listed have chosen to continue as members.

Assistant city attorney Abigail Elias.

Addressing the committee on Jan. 9, Elias indicated that she didn’t think a potential lawsuit filed against the citizens committee could have any merit. “I could give you a glib comment,” she said, “which is: It doesn’t take much to file a lawsuit. Anyone can file a lawsuit against anybody.”

She told the committee that courts do not like cases that do not have merit. That’s a huge discouragement to lawyers against filing lawsuits that they shouldn’t be filing, she said. As the citizens advisory committee, she told the members, “you are part of the city government in the sense that you’ve been asked to engage in what is a quintessential governmental function.” That function includes planning, recommending, studying, looking at the data, and looking at the information.

Governments in Michigan have broad governmental immunity for what they do, she said. “And that means, we can be negligent, but we are not liable.” Elias allowed that sounded very crass, but said that is basically what governmental immunity is.

The reason for governmental immunity is that the government performs core functions to serve the residents, and it needs to be able to do those things when the government is the only one doing them – without liability hanging over its head. “Does that mean we say, ‘Fine, we’ll go out and be negligent?’ Absolutely not,” Elias assured the committee. She allowed there are some exceptions – if the city doesn’t maintain streets properly or if there is a defect in the sewer system that causes a backup under limited circumstances. She also noted that drivers of city vehicles don’t have immunity if there’s a car accident.

But sitting on a planning committee making recommendations is the kind of function and action for which there should be no liability at all, Elias said. That doesn’t stop someone from filing a lawsuit, she allowed, but that means the lawsuit should be kicked out almost immediately. She concluded that it’s not something a committee member should be losing any sleep over.

As far as representation if the committee were sued, Elias said, “We’ll represent you. You’re part of the city process.” But she cautioned that did not mean that she and the committee had an attorney-client relationship. “I represent the city; you’re advising the city,” she said.

Elias said there could be exceptions to the city’s willingness to represent a committee member: “If one of you gets so excited at the meeting that you punch the guy sitting next to you, no, we’re not going to help you out in that case.” She said she didn’t want to make light of the issue, but indicated that punching someone is not part of the duties as a committee member.

Committee member Vince Caruso asked Elias if there were any cases where a citizens committee has been sued. Elias told Caruso that part of the problem in researching cases is that only the court of appeals cases are easily accessible. Some of those opinions are published, and some are not published. Elias felt that a case where a citizens committee had been sued would have been dismissed at the get-go and would never have gotten to the appellate court. There would be no way to find it except by word of mouth. She told the committee she had never heard of any such a lawsuit.

Committee member Peter Houk asked Elias: If a family member of yours were serving in a similar capacity on a similar board or position, would you tell them they shouldn’t do it because of the liability issue? Elias responded by saying that she would never tell them that. “If it was my sister in her town, I’d tell her to go for it, you should,” Elias said.

Committee member Jim Osborn ventured that another key issue is that the committee was not making policy, but rather just advising. Elias agreed: “Right. Somebody else is going to be making the decision. If someone messes up, it’s not going to be you guys.”

Committee Frank Burdick wanted to entertain the worst-case scenario – that the city was sued and lost. He wanted to know if the city paid the judgment. Elias told Burdick that the city’s policy is to indemnify, which is the legal term for paying a settlement. Elias also explained that the city has a policy that as long as an individual is cooperative – which did not mean someone has to agree with the city’s final position – the city will represent a committee member.

Elias said the city had experienced a couple of situations where employees didn’t respond to emails, they were supposed to show up for depositions in the discovery process and refused to show up, or refused to talk to the attorney. At that point, that’s not cooperation, Elias said. Elias also said that the city’s representation did not depend on how someone voted on the committee. Whether the recommendation is unanimous or not doesn’t make anyone ineligible for representation, if the group as a whole were sued, Elias said.

Burdick asked for Elias’ assurance in writing, saying that right now it’s just a verbal and emailed assurance. Houk observed that Elias’ remarks would be part of the minutes of the meeting. Elias indicated that her email was in writing. Elias also said that in terms of the city’s policy on indemnification, variations of it are worked into the city’s collective bargaining agreements.

Caruso thanked Elias for coming to talk to the committee. He said he didn’t think there was much standing for someone to threaten this committee with a lawsuit. He thought it was unfortunate that the threat was made, and even more unfortunate that people gave it credibility. Caruso thought it’s important that if people want to join in and help find viable solutions, they’re not threatened with lawsuits.

Legal Backup Issues: Unconstitutional Takings

In addition to the indemnification of the citizens committee, the other legal issue Elias addressed at the Jan. 9 meeting was the question of whether the city’s footing drain disconnection program is an unconstitutional taking of private property by the government.

One aspect of the unconstitutional takings legal theory, in broad strokes, is that the city is occupying space in a homeowner’s basement with sump pump equipment without compensation or due process for such an occupation. The theory is based in part on the Loretto v. Teleprompter Manhattan CATV Corp. et al U.S. Supreme Court case, which found that a required installation of cable wiring amounted to an unconstitutional taking. An email from Irv Mermelstein on Oct. 29, 2013 – sent to facilitator Charlie Fleetham and others – lays out some aspects of his legal arguments in more detail.

In a Nov. 25, 2013 memo, Elias responded to the arguments made by Mermelstein, which are based in part on the idea that the city’s program amounts to an unconstitutional taking of private property by the government.

At the Jan. 9 meeting, Elias explained the notion of “taking” by telling the committee that under the U.S. Constitution, a government cannot take private property without compensation. [It's specifically the Fifth Amendment that guarantees that right.] Elias told the committee: “If I condemn your land because I need to run a street through it, I have to pay you for that land.”

In the case of a water main easement, she said, the city might not need to pay for the use of the land – because the resident is getting water from the water main. The resident will say: Go ahead and take that part of the property you need to install the water main, and I’m not going to make you pay for it, because now I finally get water.

Elias also explained that a regulatory taking – which would prevent someone from being able to use their property – could also be unconstitutional. She described a case where a city required commercial property owners to contribute part of their land to a greenway along the riverfront. The regulatory requirement prevented the beneficial use of the commercial property along the riverfront of that city, she said. And even though the city had a good reason for it, the amount of land that was required to put into the greenway prevented property owners from being able to use their property. And that was considered a regulatory taking, she said.

Legal Backup Issues: Unconstitutional Takings – Pump Ownership

Elias began her explication of the legal framework for city’s footing drain disconnection (FDD) program by saying that the situation is “very, very different” from the Loretto case. Elias described how, when the Loretto case was decided, everybody said: Oh my goodness, they’re talking about a couple of inches on the side of a building! That couple of inches was considered a taking because New York City had required building owners to allow the local cable provider to attach its antennas to the building so that the tenants could get service – whether the landlord wanted it or not. The court in the Loretto case said that the requirement of allowing installation of cable equipment might be for a public purpose, but it involved a third party occupying space with its equipment – and that’s not allowed because that’s a taking.

In the Loretto case, if the ordinance had required landlords to provide cable installations, or if the landlord owned the equipment, it would have been decided differently, Elias said. In the Loretto case, the cable company – not the landlord – still owned the equipment. If you consider the sump pumps in the city’s FDD program, they are owned by the homeowner, Elias said. The sump pumps are not a part of the city’s system. The pumps become part of the property owner’s house. The fact that the Loretto case was a physical occupation by a third party was what made the difference – tipping Loretto over the edge to being analyzed as a taking that was prohibited.

Responding to an emailed query from The Chronicle about the ownership of the pumps, Elias wrote that the homeowner becomes the owner of the pump at the point when it’s installed and the work is accepted by the homeowner [Jan. 9, 2014 email exchange]:

Question: It was reiterated at the Jan. 9 meeting that a key difference between the city’s FDD program and the set of facts in the Loretto case involves the ownership of the installed equipment. From a legal perspective at what specific point in the transaction does the Ann Arbor homeowner become the owner of the FDD equipment?

Elias: The property owner owns the sump pump and lead lines as soon as they are installed and the property owner accepts the work done by the plumbing contractor with whom the property owner contracted to do the work. Except as inventory for the plumbing contractor, they are never owned by anyone else.

Committee member Frank Burdick noted that Elias was stressing the fact that the Loretto case involved third-party ownership of the equipment. In the case of the city’s FDD program, Burdick said, the sump pumps are owned by the homeowner, so it’s not third-party ownership. But Burdick told Elias: “It just doesn’t stand up for me very well, that the city makes it mandatory that the homeowner has one of [the pumps] installed, the city pays for it, but then you say … that it belongs to the homeowner.”

Legal Backup Issues: Unconstitutional Takings – Power to Compel

Elias responded to the part of Burdick’s comment about the mandatory nature of the city’s FDD program by pointing out an amendment that had been made [in 2002, a year after the city's FDD ordinance was enacted] to Michigan’s Home Rule City act. It says you can require property owners to separate footing drains from the sanitary sewer. From the amended statute:

117.5j Sewer separation; authorization; ordinance; special assessment.
Sec. 5j. A city, in order to protect the public health, may adopt an ordinance to provide for the separation of storm water drainage and footing drains from sanitary sewers on privately owned property. The legislative body of a city may determine that the sewer separation authorized by this section is for a public purpose and is a public improvement and may also determine that the whole or any part of the expense of these public improvements may be defrayed by special assessment upon lands benefited by the public improvement or by any other lawful charge. A special assessment authorized by this section shall be considered to benefit only lands where the separation of storm water drainage and footing drains from sanitary sewers occurs.

Elias pointed out that the amended statute also says a city can impose a charge on those who benefit, and can even impose the cost only on the homeowners who benefit from the separation. About the city’s FDD program, Elias said: “So we could make the homeowners pay.” But she said the policymakers in Ann Arbor didn’t think that making property owners pay was the right way to do it, and the policymakers’ choice was to fund the program.

Legal Backup Issues: Unconstitutional Takings – Retro Compliance, Health, Safety, Welfare

Elias also noted that some people had raised the issue about requiring retroactive compliance with building codes. Houses built to code, say in 1967, were allowed to have footing drain connections to the sanitary sewer. The current building code disallows such connections. But how is it that a requirement can be imposed retroactively to bring a building up to current code?

Elias said that a lot of the Loretto case actually talked about how governments can impose regulations for health, safety and welfare that are reasonable and that are not takings. She said the courts distinguish exercising police powers – which are for health, safety and welfare of the community and its residents – from takings by a third party by occupying somebody’s property. The health, safety and welfare argument is based at least in part on the risk of sanitary sewer overflows into the Huron River.

There was a case after Loretto where asbestos abatement was required if there was renovation of the property, Elias said. The person who sued said: Wait a second, my property was in compliance with the code when it was built, so why are you making me do retroactively the asbestos abatement that I wasn’t required to do before? And the court said that case had nothing to do with Loretto, Elias said. Rather, the asbestos abatement was legitimate regulation for public heath, safety and welfare that is not a taking.

Elias said about 6,600 cases have mentioned Loretto since the opinion had come out [in 1982]. She had looked at the cases in Michigan where Loretto had been referenced. And Elias said she’d found nothing that says that requiring residents to bring a building into compliance with a building code would be considered a taking.

Courts that have looked at retroactive application of building codes, Elias said, look at a couple of things: (1) Is there a public safety, health and welfare reason for doing it? and (2) Is it an overwhelming or undue burden on the property owner?

Elias said referenced a 1946 case, which she said was still good law after Loretto, that said the extraordinary cost of a retrofit was not a reason not to do it. She allowed that she’d found one case out of Ohio – a trial court decision, not a court of appeals decision – where a city that was requiring disconnects was making residents pay the cost of the disconnects. And for one elderly woman who was on a fixed income, her cost was something like $30,000 – because she had to build a line down to the road in order to do the disconnect. And on that one instance, the court had said that given the inordinate burden on that individual, the disconnection requirement was not legitimate as applied to that individual.

By way of background, the kind of case that might see litigation in Ann Arbor could stem from the city’s FDD program as applied to specific individuals. The website a2underwater.org describes a participant in the FDD program, Mrs. Y, who has limited financial resources for maintaining the sump pump system, is elderly, and has physical disabilities preventing her from easily accessing the location of the crawl-space sump pump.

Committee member Frank Burdick implicitly challenged the welfare part of the health, safety and welfare argument by questioning whether a sump with a pump adds value to a house. If he has the same floor plan as his neighbor, but his neighbor has an FDD sump pump and the neighbor’s basement now continually floods – because the pump has failed or there is water that was never there before – then Burdick’s house has more value than his neighbor’s, Burdick said. His neighbor has to disclose that when he tries to sell his house.

Elias responded by saying if the sump pump is working properly, it’s going to help prevent sanitary sewer backups. If stormwater is getting into the house through the sump, that at least is clean water, she said. It’s still wet, Elias allowed, but it’s not unsanitary in the way it would be if water were backing up through the sanitary system.

Legal Backup Issues: Unconstitutional Takings – Developer Offset Mitigation Program

At the conclusion of the Jan. 9 meeting, during the time allotted for public commentary, Cy Hufano addressed the committee.

[Hufano is a resident of Sloan Plaza, which is just to the east of 413 E. Huron – a 14-story, 216-apartment building at the northeast corner of Huron and Division that's currently in the beginning phases of construction. The project was controversial but eventually won approval on a 6-5 city council vote. As part of the developer mitigation offset program, the 413 E. Huron project is required to complete the equivalent of 59 FDDs.]

Hufano told the committee that they needed to make clear to themselves why developers have a responsibility to mitigate their additional burden on the sanitary system. “I think you should know that,” he said. “Who mandates that they have to mitigate?” Hufano noted that the 413 E. Huron project required the equivalent of 59 FDDs. His understanding was that the University of Michigan stadium renovation also required FDDs. Hufano wanted to know: Is the city of Ann Arbor involved in FDDP with developers? His perception was that the FDD program exists to support developers, at the expense of citizens.

By way of additional background, the perception that the FDD program now exists to support developers is partly due to the fact that the city has now completed nearly three times the number of FDDs that were required under the 2003 MDEQ consent order. So it might be argued that the risks to health, safety and welfare that led the MDEQ to seek that agreement with the city have been addressed through FDD activity up to now. Part of the goal of the current wet weather study is to assess accurately the current risk of sanitary sewer overflows – that is, to assess the current level of risk to health, safety and welfare posed by footing drain connections.

It’s not absolutely clear if it’s legally possible to have a requirement that developers mitigate their additional load on the sanitary system without having an FDD ordinance in place. That’s a question posed by The Chronicle to Elias via email:

Question: The Administrative Consent Order with the MDEQ, which was authorized in 2003, requires implementation of an offset mitigation program – but it does not appear necessarily to require a local ordinance to be in place involving FDDs. Is that a fair statement? From a legal point of view (without regard to the practicalities), wouldn’t it possible to require developers to mitigate their new sanitary flows by convincing residents through direct financial negotiation to disconnect their footing drains from the sanitary system – without an FDD ordinance in place?

Elias: From a practical standpoint, if the only issue were to achieve zero (or a modest improvement over zero) impact from new development, then the developer offset mitigation program would serve that purpose – if developers chose to do residential FDDs instead of other possible mitigation measures. However, the overflows that resulted in the ACO were from existing conditions, and it was those existing conditions that needed to be addressed to try to prevent future overflows. Similarly, the sewer backups experienced by property owners in 1998 and 2000 were due to existing conditions and, as with the overflows, it was those existing conditions that needed to be addressed.

Requiring a developer to mitigate beyond mitigation of the new flow their development is contributing (plus 20%) would be inconsistent with the concept of developer offset mitigation. More important, the volume of flow to be removed by the number of FDDs mandated by the ACO within the amount of time mandated by the ACO would have imposed on developers an arguably substantial burden, not necessarily related to their development. The developer offset mitigation program serves to prevent new developments from undermining the removal of flow that is being accomplished by the FDD program. The FDD program operates separately from the Developer Offset Mitigation Program – even though a decision to perform FDDs for residents who agree is an option and commonly used by developers to comply with the mitigation requirements.

While the ACO did not mandate an ordinance, (1) the FDD ordinance was already in place, (2) an FDD ordinance was required to provide the ability for the City to enforce the program requirements, and (3) an ordinance also helps to make sure the FDD program requirements were spelled out clearly so that it is understood, in addition to being managed and applied uniformly and consistently. Adoption of the ordinance also meant it was subject to City Council review and approval through the usual ordinance approval process, including public input at the public hearing on the ordinance in addition to the input from the SSO Task Force.

Legal Backup Issues: Unconstitutional Takings – Specific Prior Case Law?

Committee member Joe Conen asked Elias if she was aware of any cases where a sump pump had to be installed, and then that issue was tried and judged – and where the installation was upheld or overturned. Elias referred the committee to her written memo. [The memo does not appear to cite any cases where an analysis of an FDD program as an unconstitutional taking was specifically presented to and ruled on by a court.]

Elias said that one of the cases was heard by John Feikens, a federal judge in Detroit, who managed the litigation of the Detroit Water and Sewerage System. The case that came before Feikens dealt with issues that had to do with cost, but not with legality of the disconnection that was required. Elias ventured that Feikens would not have hesitated to strike something down that was unlawful. [City attorney Stephen Postema once clerked for Feikens.]

Elias’ favorite case from those described in her memo, she said – partly because she thought the judge had a bit of a sense of humor – was Magnuson v. City of Hickory Hills in Illinois. [The judge's sense of humor is reflected in this quip from the opinion: "It didn't matter much to Noah, but Hickory Hills, Illinois, cares very much where the water goes." The reference is to the biblical Noah who built an ark in advance of a flood that resulted from 40 days and 40 nights of rainfall, not to Noah Hall, an environmental law professor at Wayne State University.]

In the Magnusun case, Elias said, the court did find that using water service is directly related to discharge to the sanitary system, so it’s a perfectly legitimate consequence for refusing to comply with the footing drain disconnection requirements that the water service to a house could be shut off.

The current citizens advisory committee is expected to submit its recommendations to the city council when the study concludes. The final study report is due in July of 2014.

The Chronicle could not survive without regular voluntary subscriptions to support our coverage of municipal topics like sanitary sewer pipes. Click this link for details: Subscribe to The Chronicle. And if you’re already helping The Chronicle sift through the sewage, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!

The parliamentary procedure the council would need to use is to move for reconsideration. It’s only a member of the prevailing side – one of the six who voted in favor – who can move for reconsideration. Moving for reconsideration of a vote at the next regular meeting following the initial vote does not require more than a six-vote majority. The council is likely to treat the exercise as a formality and not as an opportunity to re-open the debate on the issue.

From the site plan application for 413 E. Huron. Critical root zones of landmark trees are shown by the dashed circles. The root zones were a focus of much of the questioning by councilmembers on March 18, and had been a focus of public commentary on April 15.

The vote came on May 13, 2013 at a meeting that had started on May 6. On that night councilmembers had recessed the meeting around 11:30 p.m., just as the council reached the 413 E. Huron item on its agenda.

The development was presented to the council as a “by right” project, which means that in the judgment of the city planning staff, it met all the zoning requirements. The site is zoned D1 (core downtown).

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

Consideration of the site plan came after the council had considered and postponed – over the course of several earlier meetings – then finally voted not to impose a possible moratorium on site plan applications in the D1 area.

Instead, the council voted on March 18 to give the planning commission direction to review the city’s D1 zoning. The scope of that review and a deadline of Oct. 1 was given at the council’s April 1 meeting.

A new public hearing on the 413 E. Huron project was started at the April 1 meeting, and held open so that it could resume on April 15. That public hearing continued on May 6.

The council’s split on the site plan vote, taken on May 13, was different from the 6-5 split on the moratorium question, which was considered on March 18. On that occasion, those who voted to leave some kind of moratorium in the resolution were Jane Lumm, Chuck Warpehoski, Mike Anglin, Sumi Kailasapathy and Sabra Briere. Voting to strike any mention of a moratorium on March 18 were John Hieftje, Sally Petersen, Christopher Taylor, Stephen Kunselman, Marcia Higgins and Margie Teall.

[.pdf of letter from attorney Pat Lennon] [.pdf of letter from Susan Friedlaender] [.pdf of nine-point booklet] [.pdf of planning staff response to 9-point booklet] [.pdf of response to 9-point booklet from Conor McNally for the developer] [.pdf of Norm Hyman, Christopher Taylor Q&A]

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

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

Door to the Ann Arbor city council chamber.

The May 13 session – scheduled to start at 7 p.m. – will begin immediately with the agenda item on the 413 E. Huron site plan, unless the agenda is re-opened and amended in some fashion. None of the routine elements associated with the start of meetings, like public commentary reserved time, will be included. Those items were already dispatched on May 6.

It was around 11:30 p.m. on May 6 when the council decided to recess the meeting, and to resume it on May 13. At that point the council had completed eight public hearings and voted on a number of other items, before reaching the 413 E. Huron site plan.

While the 413 E. Huron site plan will be the first item that the council confronts, several other significant items appear on the remainder of the council’s agenda.

The council is scheduled to hear a first reading of proposed 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.

Another ordinance change to which the council will be asked to give initial approval is a change to utility connection charges for undeveloped property.

In addition to initial consideration of changes to those two ordinances, the council will be asked to give an 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 supposed 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. 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 is also on the agenda for approval.

The Ann Arbor fire department shows up on two different items – one to accept a federal grant that will pay for exhaust fume removal systems for fire stations, and another to appropriate funds to replace protective gear worn by firefighters.

And the University of Michigan appears in two different agenda items. One item authorizes a contract for the city worth more than $600,000 in connection with the vehicle-to-vehicle study – for which the UM Transportation Research Institute (UMTRI) won a $14 million federal grant. The other item related to UM involves a right-of-way agreement for the placement of electrical conduit under Tappan Street, so that an emergency generator can serve a law school dorm.

Other agenda items include some resolutions necessary to impose a special assessment on property owners along Miller Avenue, to help pay for construction of new sidewalks. And the council will be asked to choose Coke over Pepsi as the vendor for Ann Arbor’s city parks.

6:45 p.m. Pre-meeting activity. The council labor committee is meeting in the workroom adjoining the council chambers. A half dozen members of the 413 E. Huron development team have arrived, with several posters mounted on foam core. Two members of the public are here. One of those is Jack Eaton, whose candidate petitions have been verified by the city clerk for the Ward 4 city council Democratic primary. Incumbent Democrat Marcia Higgins has also filed her petitions. The deadline is tomorrow. Scheduled council meeting start time is 7 p.m.

7:05 p.m. About 40 people are now here. All councilmembers in chambers except for Sabra Briere (Ward 1). She reportedly filed her nominating petitions today to seek re-election to her Ward 1 council seat.

7:06 p.m. Briere has now arrived. We’re waiting, poised to begin.

7:10 p.m. The meeting has now started. There’s no roll call to start the meeting, but all councilmembers are present and correct. The council moves immediately to its first business item.

7:11 p.m. 413 E. Huron site plan. This is a 14-story residential project proposed for the northeast corner of Division and Huron Streets.

7:15 p.m. Sabra Briere has led off the discussion by questioning representatives of the developer about the curb cut onto Huron Street. It has an 81-degree angle, which is within the 15-degree variance from 90 degrees allowed by Michigan Dept. of Transportation (MDOT) standards.

7:20 p.m. Stephen Kunselman (Ward 3) questions whether the project complies with requirements of the East Huron character district. He’s highlighted the language that describes how the building should be seen “in the round” and have open space in the front. Kunselman states clearly: “I will not be supporting the project.”

7:22 p.m. Sally Petersen (Ward 2) highlighted her concern as the shading on the adjoining residences. She allows that for some of the properties, there wouldn’t be a significant increase. She expresses concern about the overall massing. She wants to know if there are any other revisions the developer would be willing to make to reduce massing. Conor McNally, the developer’s representative, points to efforts made to reduce some of the massing by removing some of the units from the top of the building. Further reductions in density are unlikely to be considered, he says.

7:27 p.m. Jane Lumm (Ward 2) questions whether the unit mix would actually attract young professionals. Conor McNally points out that 60% of the units are 1-2 bedrooms. He also responds to the view of Kunselman that the project doesn’t conform to the East Huron character district, because it contains a range of building types.

7:31 p.m. Lumm is now addressing the issue of the retention wall on the Sloan Plaza side of the site. The response from city planning staff on this issue is that the additional detail will be provided at the stage of obtaining construction permits, not at the site plan review. Lumm would like additional detail now.

7:34 p.m. Conor McNally is describing the retention system that will be used to build the underground parking garage. He describes vertical elements that will be drilled, not pounded into the ground. Between the vertical elements, there’ll be lagging. It sounds similar to the kind of system used to build the Library Lane underground parking garage earth retention system.

7:36 p.m. Briere now takes up the issue of the loading and unloading area and traffic on Division Street. She ventures that it seems to require trash collection that involves a garbage truck backing out onto Division. Conor McNally points out that the loading dock was moved off the street at the suggestion of the design review board. He compares the configuration to other large buildings downtown. He ventures that a large truck would need to back in or else back out.

7:40 p.m. Briere tells McNally she expects the project will have full composting capacity, including plate scrapings – because that’s the direction the city is headed. She says it’s not unrealistic that the tenants will demand this.

7:41 p.m. Chuck Warpehoski (Ward 5) brings 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 is fielding the question. She explains that it’s a secondary accessory use.

7:45 p.m. Rampson explains that the key is that the parking use is customarily incidental to the primary use – residential.

7:49 p.m. Sumi Kailasapathy (Ward 1) asks where customers to the retail tenants will park. McNally explains that not a lot of parking will be provided. 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 says, but that’s not certain.

7:53 p.m. Margie Teall (Ward 4) brings up the issue of the bur oak and the critical root zone. Rampson explains that the root zone is required to be identified on the site plan. Code doesn’t require mitigation for off-site impact. The developer has proposed to do maintenance on the tree for five years, Rampson says.

7:55 p.m. Kunselman returns to the issue of principal use and accessory use for the parking structure component of the building. He contends that the council could send the project back to seek a special exception use permit. He also returns to the issue of the East Huron character district and the open space description. Rampson explains that Kunselman is talking about the intent statement, not a regulation with numerical requirements. It’s an “explanatory piece,” she says.

8:02 p.m. Briere follows up on the character overlay district and the rules about setbacks and streetwall height. She says she can’t remember why the rules were done in a way that “don’t match.” Rampson questions Briere’s conclusion that they don’t match. Rampson and Briere go back-and-forth on this issue.

8:07 p.m. Mike Anglin brings 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 says. There’s too much confusion, he adds, and there’s a lack of certainty. He cites the public safety, health and welfare clause.

8:08 p.m. Anglin asks about City Apartments at First & Washington, which is currently under construction: What is the height? Rampson looks it up: 104 feet. Anglin fears that the site plan for 413 E. Huron will change from the one that the council is approving. He raises the possibility that changes will be approved administratively – which was done with the City Apartments project. Anglin notes that for the City Apartments project, changes were made as a result of the hydrogeologic conditions discovered.

8:10 p.m. Anglin wants 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 doesn’t mean much to him, because the city is responsible for the safety of its residents, not MDOT.

8:15 p.m. Petersen refers to previous public commentary on May 6: What will be your legacy? She’s baffled about why the parcel wasn’t zoned D2 back in 2009. The legacy began in 2009 when it was intentionally zoned D1, she says. Even if a lawsuit would be won, that will cost the city a lot of money. She worries about the long-term consequences of a lawsuit, when the university is buying up city land. She fears a legacy of ill will from developers. Literal hisses come from the audience. She prefaced her remarks by saying that she knew it would be unpopular with many people in the room.

8:18 p.m. Kunselman comes back to the issue of setbacks: The developer has the ability to move the building back 10 feet. Rampson confirms that. Kunselman allows that moving it back will reduce the number of bedrooms. He recalls the zoning that preceded the D1 zoning enacted in 2009. Kunselman again states he’ll be voting against the project.

8:23 p.m. Lumm states that she doesn’t think the project conforms with the statement of intent in the East Huron Street character overlay district. She appeals to the criteria for site plan approval. She finds that the project hasn’t met all the standards. One possible nose count looks like this for those likely to vote no: Anglin, Kailasapathy, Briere, Lumm, Kunselman.

8:31 p.m. Warpehoski says the design has come a long way, but is simply too large for the area. In the various enforceable regulations in the code, he felt like previous councils hadn’t gotten everything right. That’s a reason he had previously voted for the moratorium. He describes piles of papers and full email inboxes from residents and the developers and their attorneys. He listens to it all and questions it all. He’s weighing the risk. What level of risk is he willing to take? He cites Kunselman’s statement on a different occasion that Kunselman doesn’t like to gamble with other people’s money. Warpehoski is not afraid of a lawsuit, but weighs what the cost is of losing a lawsuit. He refers to millions of dollars of damages, and calls that “too rich for my blood.” He calls his anticipated vote “a very pit-in-my-stomach-sickening vote yes.” That elicits hisses from the audience.

Assistant city attorney Kevin McDonald asks the council to amend the resolution to refer to the proper date of the development agreement.

8:35 p.m. Teall describes how she doesn’t like the massing of the building but isn’t willing to risk the taxpayers’ money. She thought there was merit to the consideration of legacy – on both sides. She says she’ll very reluctantly vote yes.

8:38 p.m. Marcia Higgins (Ward 4) recalls the history of A2D2: “It wasn’t done in a vacuum.” She recalls the consensus that density would be restricted to the downtown, which kept it out of neighborhoods. She describes the tension between planning commission and the council. The developer has listened to a lot of things and some changes have been made. She notes there’s less massing than the original proposal. She contends 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 neighborhoods. She reports that after the last public hearing, she started hearing from people who supported the project. There are 80,000 other people in the town who don’t always have the same viewpoint, Higgins says. She’s supporting it.

8:40 p.m. Christopher Taylor (Ward 3) acknowledges the various detriments that the project will cause. He describes the tension between Huron Street, which can bear great density, and Division Street, which is residential. He notes that the project satisfies the regulations. He states that the task is not legislative, but rather administrative. He extends that to the idea that the task is actually judicial. He’s voting for it. He had no doubt who’d win if the developer and the city came to blows. When the head, the heart and millions of taxpayer dollars are in conflict, the head has to win, he says.

Taylor says his duty is unwelcome but also clear. The developer has not reduced the density for only one reason: profit. “They should own it and admit it,” Taylor says. He allows it’s their right.

8:47 p.m. Kailasapathy can’t fathom how the parcel was not zoned D2. The developer is providing minimum requirements. She hopes the developer goes back to the drawing board. She’s voting against it.

8:51 p.m. Briere thanks her colleagues for their coherent thought. No one is proud of this development, she contends. The council feels a little bit helpless, she says. A previous decision on a “by right” project resulted in City Place being constructed on Fifth Avenue, Briere notes. “This is a terrible way to make decisions.”

Briere calls for evaluating the entire set of information the council has received. She finds the project doesn’t meet all the requirements and could cause a nuisance. It fits the limited numeric zoning that is quantifiable, but the intangible shouldn’t be ignored. She’ll be voting against it.

8:55 p.m. Lumm is explaining again why she’ll be voting no. She echoes the code requirements cited by Briere that she thinks the project fails to meet. She highlights the traffic issues.

8:59 p.m. Mayor John Hieftje compliments the opponents of the project. He states it was not a NIMBY opposition. He worked to gain acceptance of a different plan that envisioned a 20-story building and scaling down as it moved towards Sloan Plaza. That would have been a “planned project,” he says. The building doesn’t honor the site. But he says it comes down to an unwillingness to take the legal risk. It’s too large a risk, with too small a chance of succeeding.

Outcome: The council voted 6-5 to approve the 413 E. Huron site plan. Voting against it were: Anglin, Kailasapathy, Briere, Lumm, Kunselman. Voting for it were: Higgins, Warpehoski, Hieftje, Petersen, Taylor, and Teall.

9:03 p.m. Theta Delta Chi site plan. 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, which is located on the southwest corner of Monroe and South State.

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

9:04 p.m. Establishment of a contingency budget of roughly $10 million for the facilities renovations project at the wastewater treatment plant. The council had previously awarded a roughly $10.8 million contract with Malcolm Pirnie Inc. (MPI) for engineering services. And the council had approved the tentative award of a roughly $93 million construction contract with Walsh Construction Company II LLC. This had been postponed from the April 15, 2013 meeting.

Outcome: The council unanimously approved the contingency budget.

9:07 p.m. Approval of $262,000 in payments to Ultimate Software Group over the next two fiscal years. The city uses the software for human resources and payroll services. This had been postponed from the April 15, 2013 meeting.

Outcome: The council unanimously approved the payments to the Ultimate Software Group.

9:10 p.m. Confirmation of appointments left over from April 1 and April 15 meeting. These include Sheila Steinman to the commission on disability issues, and Ingrid Ault to the housing and human services advisory board. Also included were appointments of Eric Mahler to the board of the Ann Arbor Transportation Authority and Leon Moore to the housing board of appeals.

The council engaged in long deliberations on Eric Mahler’s appointment.

Outcome: The council voted to approve the appointments. But on Mahler’s appointment, Kunselman, Kailasapathy, Anglin, and Lumm dissented.

9:34 p.m. The council is now in recess.

9:48 p.m. Utility improvement changes ordinance. The charges in question 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. When the council was asked for the annual adjustment upwards earlier this year, the council declined. This ordinance change would cut the charges roughly in half for the next two years. [.pdf of connection charge comparison]

Outcome: The council voted unanimously to give initial approval to changes to the utilities improvement ordinance.

10:16 p.m. Public art ordinance. The major change proposed for the Percent for Art ordinance is that capital improvement projects would no longer be required to set aside 1% their budgets for public art – up to a maximum of $250,000 per project.

Jane Lumm has proposed an amendment to allow the return of funds set aside for public art in FY 2014 to their funds of origin.

10:27 p.m. Lumm’s amendment is unanimously approved.

Outcome: The council voted unanimously to give initial approval to changes to the public art ordinance.

10:29 p.m. 490 Huron Parkway zoning. The request is to rezone the parcel from R3 (townhouse district) to R1B (single-family dwelling). The rezoning would allow the currently vacant 1.22-acre site, located north of Ruthven Park, to be divided into three separate lots.

Outcome: The council voted unanimously to give initial approval to the rezoning at 490 Huron Parkway.

10:30 p.m. State Street Center zoning. The parcel is near the intersection of State and Ellsworth. The site plan 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 building with a 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. Rezoning is requested from O (office) to C3 (fringe commercial) – because the official city zoning map already erroneously shows the parcel zoned C3.

Outcome: The council voted unanimously to give initial approval to the rezoning for State Street Center.

10:31 p.m. Hideaway Lane site plan. This is 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.

Outcome: The council voted unanimously to approve the Hideaway Lane site plan.

10:35 p.m. Acceptance of money for vehicle-to-vehicle study. The council is being asked to approve receipt of $622,884, which will flow to 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 implement a pilot study of vehicle-to-vehicle technology. After the study, the city will own the telecommunications fiber, sensors and electronic equipment, as well as some network support.

Outcome: The council voted unanimously to approve the contract with the University of Michigan for the vehicle-to-vehicle research study.

10:37 p.m. Airport fencing. Outcome: The council unanimously approves the airport fencing item.

10:38 p.m. UM and city right-of-way agreement. The agreement would allow the University of Michigan to install conduits in Tappan Street – to connect a new emergency generator to the Lawyers Club buildings at 551 S. State Street.

The city and the university appear to have reached an understanding on how to disagree about the significance of the agreement. According to the staff 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 is being submitted to City Council for approval with a requirement of 8 votes as if it granted an interest in land.

Outcome: The council voted to deny the right-of-way occupancy agreement. It needed eight votes. Higgins, Anglin, and Kailasapathy voted against it. Because Taylor left the meeting early, the item had only seven votes in support.

10:47 p.m. Coke vs. Pepsi. This item awards the vendor contract for beverages in the city’s parks and recreation facilities to Coke. The 10-year deal with Pepsi is set to expire, and Pepsi didn’t meet the deadline to respond to the city’s request for proposals. The contract with Coke 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.

Outcome: The council voted unanimously to give initial approval to Coke as the parks and recreation beverage vendor. However, Warpehoski expressed concerns about Coke’s human rights record, as well as concerns about nutrition.

10:56 p.m. Miller Avenue special assessment. The properties will be special assessed for sidewalk improvements ($5,976) and curb/gutter improvements ($3,429) totaling $9,405. The two actions that the council was asked to take were to set the roll and schedule a public hearing – for June 3, 2013.

Outcome: The council voted unanimously to approve the two resolutions involved in the Miller Avenue special assessment.

10:57 p.m. Appropriation for firefighter gear. The council is being asked to appropriate $150,000 to replace protective gear that firefighters wear.

Outcome: The council voted unanimously approve the purchase of firefighter protective gear.

10:59 p.m. Grant for exhaust removal at fire stations. The federal grant is for $87,876 and comes from the Department of Homeland Security under the auspices of the Assistance to Firefighters grant program (AFGP). Ann Arbor’s project involves installation of vehicle exhaust capturing systems – so that diesel fumes don’t accumulate inside the fire stations.

Outcome: The council voted unanimously to accept the federal grant for installation of exhaust removal equipment.

11:00 p.m. Nominations. These nominations will be put before the council for confirmation on May 20, 2013. Among them are Susan Baskett to the Ann Arbor Transportation Authority board and Paras Parekh to the city planning commission. Also included are the re-appointments of all the members of the downtown citizens advisory council, whose terms have all expired.

11:15 p.m. Public comment general time. Speakers are Thomas Partridge, Mark Koroi and Steve Beisheim.

11:24 p.m. The council is now adjourned. Details on some individual voting items can be found in The Chronicle’s Civic News Ticker.

A sign on the door to the Ann Arbor city council chambers gives instructions for post-meeting clean-up.

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

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

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

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

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

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

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

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

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

413 E. Huron Site Plan

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

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

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

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

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

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

413 E. Huron Site Plan: Development Process

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

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

413 E. Huron – Public Hearing Mechanics

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

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

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

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

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

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

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

413 E. Huron – Legacy

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

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

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

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

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

413 E. Huron: Booklet

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

413 E. Huron: Risk of Lawsuit, Tough Decision

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

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

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

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

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

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

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

413 E. Huron: Quality of Neighborhoods

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

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

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

413 E. Huron: Economics

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

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

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

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

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

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

DDA Ordinance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DDA Ordinance Revisions: Public Hearing, Communications

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

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

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

DDA Ordinance: Public Hearing – Board Members

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

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

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

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

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

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

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

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

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

DDA Ordinance: Public Hearing – Non-board Members

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

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

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

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

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

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

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

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

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

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

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

DDA Ordinance Revisions: Council Deliberations

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

Stephen Kunselman (Ward 3).

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

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

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

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

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

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

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

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

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

Christopher Taylor (Ward 3).

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

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

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

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

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

Digital Sign Ordinance

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

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

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

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

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

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

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

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

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

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

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

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

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

Sign Ordinance: Public Hearing

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

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

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

Sign Ordinance: Council Deliberations

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

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

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

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

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

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

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

Video Privacy Ordinance

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

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

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

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

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

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

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

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

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

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

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

Summit Townhomes Project

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

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

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

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

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

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

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

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

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

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

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

Fourth Avenue Improvements

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

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

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

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

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

The Arena: Liquor License

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

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

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

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

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

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

FY 2014 Budget Hearing

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

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

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

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

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

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

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

Appointments

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

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

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

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

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

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

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

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

Communications and Comment

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

Comm/Comm: Regional Fire Protection

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

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

Comm/Comm: Human Rights, Affordable Housing

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

Comm/Comm: Washtenaw Area Transportation Study (WATS)

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

Comm/Comm: Palestine/Israel

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

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

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

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

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The council suspended its May 6 meeting at around 11:30 p.m. after completing eight public hearings – including one on 413 E. Huron – and voting on a number of other business items. The same meeting will resume at 7 p.m. on May 13.

This brief was filed shortly after the May 6 meeting concluded. A more complete report of the meeting will follow: [link]

From the site plan application for 413 E. Huron. Critical root zones of landmark trees are shown by the dashed circles. The root zones were a focus of much of the questioning by councilmembers on March 18, and was a focus of public commentary on April 15.

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

The council’s action to postpone all remaining action items took place during deliberations on revisions to the Ann Arbor Downtown Development Authority ordinance, which was also postponed through the action.

The duration of the meeting was due in part to 45 speakers during the public hearing on the DDA ordinance, and 51 speakers on the 413 E. Huron site plan.

The council had previously postponed a site plan decision on April 1, 2013 and on March 18, 2013. The consideration of the site plan came after the council had considered and postponed, then finally voted not to impose a possible moratorium on site plan applications in the D1 (core downtown) area.

Instead the council voted on March 18 to give the planning commission direction to review the city’s D1 zoning. The scope of that review and a deadline of Oct. 1 was given at the council’s April 1 meeting.

A new public hearing on the project was started at the April 1 meeting, and held open so that it could resume on April 15. That public hearing will continue on May 6.

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

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]