The recommendations, which in general aim to create more of a buffer between downtown development and adjacent or nearby residential neighborhoods, included the following:

• Rezone the parcel located at 336 E. Ann from D1 (downtown core) to D2 (downtown interface).
• Reduce the maximum height in the East Huron 1 Character District (on the north side of Huron, between Division and State) to 120 feet. Include a tower diagonal maximum and consider a step-back requirement to reduce the shading of residential properties to the north.
• Rezone the parcel at 425 S. Main, at the southeast corner of Main and William, from D1 (downtown core) to D2 (downtown interface) and establish a maximum height of 60 feet for D2 zoning in the Main Street Character District.
• Revise the premium conditions to require mandatory compliance with core design guidelines for a project to receive any premium in the D1 or D2 districts.
• Reduce the residential premium with the goal of encouraging the use of other existing or proposed premiums to compensate for this reduction, such as increased energy efficiency certification, open space with landscape, active ground floor use, balconies and workforce housing.
• Review options in D1 and D2 districts, with the housing and humans services advisory board (HHSAB), for providing additional affordable housing within mixed income projects or through other funding mechanisms.
• Eliminate the affordable housing 900% FAR (floor area ratio) “super premium.”
• Evaluate the downtown real estate market to determine the effectiveness of premium incentives every 2-5 years.

The commission debated most of these recommendations at its Nov. 19, 2013 meeting, which adjourned at about 12:30 a.m. The group did not tackle the most controversial item that night: Possible changes to the parcel at 425 S. Main, at the southeast corner of Main and William.

On Dec. 3, commissioners heard from Scott R. Bonney of Neumann/Smith Architecture, who spoke on behalf of KRG Investments, the owners of the Main and William property. Bonney had previously written a letter to the city that suggested a third option to consider: Keep the D1 zoning on that site, but reduce the maximum height to 122 feet and add a tower diagonal maximum of 50% of the maximum diagonal dimension of the site. The letter included diagrams showing the impact this proposal, which Bonney discussed on Dec. 3. [.pdf of Bonney's letter]

Bonnie Bona, who had been involved in the original A2D2 process, advocated for downzoning the entire site, to provide a buffer between D1 zoning and the nearby residential neighborhood. Some commissioners, including chair Kirk Westphal, would like more density in the downtown, and noted that the site has allowed for denser development since the 1960s. The final vote on the recommendation for that site was 5-4, with support from Bona, Eleanore Adenekan, Sabra Briere, Jeremy Peters and Wendy Woods. Voting against it were Westphal, Ken Clein, Diane Giannola and Paras Parekh.

Also, because of feedback received from the city’s design review board, commissioners revisited one of the previously settled recommendations regarding compliance with design guidelines. They unanimously voted to change the recommendation – so that it would require mandatory compliance with some of the design guidelines. The intent is to develop a process that will clarify the design compliance that will be required in order to receive premiums.

The vote on the full resolution with all of the recommendations, as amended, passed unanimously.

The downtown zoning evaluation began earlier this year, following a city council directive to the planning commission on April 1, 2o13 that was prompted in part by the controversial 413 E. Huron development, at the northeast corner of Huron and Division. The council’s direction was for the planning commission to make recommendations to the city council by Oct. 1.

Planning consultant ENP & Associates was hired to gather public input and evaluate certain aspects of downtown zoning known as A2D2 (Ann Arbor Discovering Downtown), which was adopted in 2009. ENP’s Erin Perdu took the lead on this project.

Her report had been originally presented at the commission’s Oct. 8, 2013 working session. [.pdf of consultant's downtown zoning report] [.pdf of Appendix A: city council resolution regarding zoning review] [.pdf Appendix B: list of downtown development projects since 2000] [.pdf of Appendix C: public input results]

Commissioners held a public hearing on the consultant’s recommendations that began on Oct. 15, 2013, and continued at their Nov. 6, 2013 meeting. They also discussed the recommendations at a Nov. 12 working session. Based on that discussion, planning manager Wendy Rampson made revisions to Perdu’s original set of recommendations. Rampson drafted a memo and resolution containing these revised recommendations, which served as the basis for the Nov. 19 discussion. [.pdf of Nov. 19 memo and draft resolution]

The recommendations approved by planning commissioners on Dec. 3 now will be forwarded to the city council for consideration. The intent is for the council to review the recommendations and give direction back to the commission about which recommendations to implement. At that point, the commission’s ordinance revisions committee would work with city planning staff to craft actual ordinance language.

Any specific ordinance changes would be reviewed by the full planning commission and ultimately would require city council approval before taking effect. That process would include additional opportunities for public input.

For additional background on this process, see Chronicle coverage: “Feedback on Downtown Zoning Continues“; “Downtown Zoning Review Nears Final Phase“; “Priorities Emerge in Downtown Zoning Review”; ”Downtown Zoning Review Moves Forward” and “Downtown Zoning Review to Wrap Up Soon.”

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

Ann Arbor planning commissioners Eleanore Adenekan and Ken Clein sign papers attesting that these high school students had attended the Nov. 19 meeting. The class assignment did not require that the students stay for the entire meeting, which adjourned at about 12:30 a.m. (Photos by the writer.)

Planning commissioners made decisions on the majority of recommendations for revising the city’s downtown zoning ordinance, but adjourned after midnight before completing their final resolution for city council. Though they did not formally vote to postpone action on the resolution, the item will be taken up again at the commission’s Dec. 3 meeting. [.pdf of revised draft recommendations to be considered on Dec. 3]

Generally, the changes reflect a downzoning in some locations in an attempt to lessen the impact of development on adjacent residential neighborhoods.

A public hearing on the downtown zoning review drew seven speakers, all of whom had previously addressed the commission on this topic. Andy Klein – one of the owners of a site at the southeast corner Main and William, which is being considered for downzoning – spoke against rezoning that property, calling himself the “lone dissenter.” Other speakers at the hearing were in favor of downzoning in general, including at that site. The recommendation for that property – possibly one of the most controversial – was not debated or acted on by commissioners at their Nov. 19 meeting.

Attached to the commission’s Dec. 3 agenda was a communication from Scott R. Bonney of Neumann/Smith Architecture, written on behalf of KRG Investments, the owners of the Main and William property. It suggests a third option to consider as a compromise, and indicates that Bonney will attend the Dec. 3 meeting to make a presentation about this proposal in person. [.pdf of Bonney's letter]

After the planning commission finalizes and approves its resolution regarding these downtown zoning recommendations, the resolution will be forwarded to the city council for consideration. The intent is for the council to review the recommendations and give direction to the commission about which recommendations to implement.

At that point, the commission’s ordinance revisions committee would work with city planning staff to craft actual ordinance language. Any specific ordinance changes would be reviewed by the full commission and ultimately would require city council approval before taking effect. That process would include additional opportunities for public input.

In addition to downtown zoning, three other projects were on the Nov. 19 agenda. Commissioners recommended approval of a proposal to build two restaurants adjacent to Macy’s at Briarwood Mall. They also recommended approval of a four-story addition to the existing two-story building at 210-216 S. Fourth Ave., between East Liberty and East Washington in downtown Ann Arbor, known as the Montgomery Building. The expansion will create 32 new housing units, including four studios, 14 one-bedroom, and 14 two-bedroom units.

One project that didn’t move forward was a proposed expansion of Germain Motors – the former Howard Cooper dealership on South State Street. Owner Steve Germain and his daughter Jessica Germain attended the meeting and described the growth of their business, with a 55% increase in combined sales compared to last year. They indicated that expanded showrooms and additional parking and vehicle display areas are needed to accommodate future growth. However, planning staff recommended postponement to address several outstanding issues, and commissioners acted on that advice.

Downtown Zoning Review

A downtown zoning evaluation began earlier this year, following a city council directive to the planning commission on April 1, 2o13 that was prompted in part by the controversial 413 E. Huron development, at the northeast corner of Huron and Division. The council’s direction was for the planning commission to make recommendations to the city council by Oct. 1.

Planning consultant ENP & Associates was hired to gather public input and evaluate certain aspects of downtown zoning known as A2D2 (Ann Arbor Discovering Downtown), which was adopted in 2009. ENP’s Erin Perdu took the lead on this project.

Her report had been originally presented at the commission’s Oct. 8, 2013 working session. [.pdf of consultant's downtown zoning report] [.pdf of Appendix A: city council resolution regarding zoning review] [.pdf Appendix B: list of downtown development projects since 2000] [.pdf of Appendix C: public input results]

Commissioners held a public hearing on the consultant’s recommendations that began on Oct. 15, 2013, and continued at their Nov. 6, 2013 meeting. They also discussed the recommendations at a Nov. 12 working session. Based on that discussion, planning manager Wendy Rampson made revisions to Perdu’s original set of recommendations. Rampson drafted a memo and resolution containing these revised recommendations, which served as the basis for the Nov. 19 discussion. [.pdf of Nov. 19 memo and draft resolution]

Commissioners made several amendments during their deliberations on Nov. 19, and adopted the following recommendations, which will likely be part of the final resolution to the city council. In general, the changes reflect a downzoning in an attempt to lessen the impact of development on adjacent residential neighborhoods:

• Rezone the parcel located at 336 E. Ann from D1 (downtown core) to D2 (downtown interface).
• Reduce the maximum height in the East Huron 1 Character District (on the north side of Huron, between Division and State) to 120 feet. Include a tower diagonal maximum and consider a step-back requirement to reduce the shading of residential properties to the north.
• Revise the premium conditions to require compliance with Design Review Board recommendations for a project to receive any premium in the D1 or D2 districts.
• Reduce the residential premium with the goal of encouraging the use of other existing or proposed premiums to compensate for this reduction, such as increased energy efficiency certification, open space with landscape, active ground floor use, balconies, and workforce housing.
• Review options in D1 and D2 districts with the housing and human services advisory board (HHSAB) for providing additional affordable housing within mixed-income projects or through other funding mechanisms.
• Eliminate the affordable housing 900% FAR (floor area ratio) “super premium.”
• Evaluate the downtown real estate market to determine the effectiveness of premium incentives every 2-5 years.

The only draft recommendation that was not discussed on Nov. 19 was for a parcel located at the southeast corner of Main and William (425 S. Main). A surface parking lot and a building that currently houses DTE offices are located there.

Commissioners are expected to weigh two options for that site at their Dec. 3 meeting: (1) Rezone the parcel from D1 (downtown core) to D2 (downtown interface) and establish a maximum height of 60 feet for D2 zoning in the Main Street Character District; or (2) Change the maximum height in the Main Street Character District to 100 feet when within 20 feet of a residential zoning district and add a tower diagonal maximum and/or “shadow setback” requirement to limit shading on adjacent residential properties.

For additional background on this process, see Chronicle coverage: “Feedback on Downtown Zoning Continues“; “Downtown Zoning Review Nears Final Phase“; “Priorities Emerge in Downtown Zoning Review”; and ”Downtown Zoning Review Moves Forward.”

Downtown Zoning Review: Public Hearing

The public hearing on the downtown zoning review drew seven speakers – all but one in favor of downzoning. All of them had previously addressed the commission on this topic.

Ray Detter said he was speaking on behalf of the downtown citizens advisory council. The group based its support of the 2009 zoning revisions on the goal of minimizing the negative impact of downtown development on neighbors in terms of height, scale, shading and harm to natural and historic resources, he said. In general, Erin Perdu has done a good job of summarizing the community’s view, Detter told commissioners.

Detter noted that at the Nov. 12 working session, which he and several others attended, they were pleased that the planning commission was supportive of changes to the three locations where the city “made past zoning mistakes,” he said. The advisory council believes the Ann Street lot should be downzoned from D1 to D2, as it’s clearly an interface area across the street from historic properties in the Old Fourth Ward, he said. But it’s also true that D2 zoning should be used for the property south of Ann Street all the way to North Fourth Avenue, he added.

From left: Ray Detter, Jeff Crockett and Chris Crockett.

Detter said the advisory council was also pleased that the commission supported decreasing the allowable height of property between Campus Inn and Sloan Plaza from 150 feet to 120 feet, and to use diagonals, setbacks, stepbacks, and a shadow setback requirement to eliminate shading. There should also be at least a 25-foot separation between Sloan Plaza and any development next to it, he said. The advisory council supported rezoning the other parcels on the north side of East Huron between North Division and North Fifth – from 180 feet to 120 feet with possible diagonals, setbacks and stepbacks. That includes the Ahmo’s site, he noted, and the property management office next to Ahmo’s. The 120-feet zoning change should also be extended to include the northeast corner of North Fourth, where a former gas station is located.

Detter said there were cheers during the Nov. 12 working session when it seemed that commissioners agreed that the property at the southeast corner of Main and William should be rezoned from D1 to D2. Apparently that’s still open to discussion, he noted, but the downtown citizens advisory council definitely supports D2 on that entire site. He encouraged commissioners not to give premiums to things that the community doesn’t want – like student housing – but instead to give premiums to features that the community supports, like more open space and affordable housing. Also, the advisory commission supports giving no approvals or premiums unless the development follows recommendations of the design review board, which he said should include a member of the historic district commission.

Jeff Crockett supported what Detter had said, and added that he’s been pleased with the process in that it reflects community input. He encouraged the city in the future to look carefully at the landmark tree ordinance and toughen it up. He liked the idea of D2 on the William and Main site, and also supported creating shadow setbacks as well as a review of premiums every two to five years.

Chris Crockett also thanked the commission for reviewing A2D2, especially in proximity to residential areas. She noted that although the property at Main and William is viewed as a gateway to the city, it’s also adjacent to a residential area and D2 zoning there is as valid as any. She was happy that the commission is reconsidering the use of premiums. People hadn’t understood the ramifications of the original zoning, she said, and didn’t realize that the city would end up with “essentially dormitories.” The premiums haven’t led to good architecture or good development, she said. The city also needs affordable housing, to make sure there’s a good urban mix.

Eleanor Linn told commissioners she hadn’t seem the most recent draft of recommendations before she wrote her comments, so some of the things she was asking them to consider are things that are now in the recommendations. She read her statement, which noted that she lives near the 13-story Landmark “private student dormitory” at South University and Forest. She’s learned something about the problems of high-rise buildings invading residential neighborhoods, she said. Large setbacks are crucial, and she supported 40-60 foot setbacks where D1 or D2 zoning abuts residential zoning. D1 buildings are far too tall to ever abut residential areas. She wants lower height limits where D2 abuts residential, and she hoped the city would review other vulnerable parcels that aren’t included in this current review. She also thinks it’s necessary to reinstate the cash-in-lieu option for affordable housing, if it’s legally possible.

Marc Gerstein also read a statement that had been prepared before he’d seen the updated recommendations. He also lives near South University and Forest, and urged that no D1 zoning should abut residential areas. He supported rezoning the Main and William parcel to D2, and lowering the height limit on the parcel next to Sloan Plaza with bigger side setbacks. He supported shadow setbacks and other requirements that would reduce the impact of D1 and D2 zoning on residential areas. There should always be an interface between D1 parcels and residential areas, and the city should re-examine areas where this occurs – like on the north side of Willard, between East University and South Forest. He also wanted protections for Hill Auditorium and Burton Tower, which are across from D1 zoning on Thayer Street.

Andy Klein, one of the owners of the property at the southeast corner of Main and William.

Andy Klein introduced himself by saying he was the “lone dissenter.” He’s one of the owners of the property at Main and William, where the DTE building is located. It’s interesting to hear other people’s comments about property that you’ve spent millions of dollars on, he said. He respects the concerns that have been voiced, but there’s no pressure to make any changes on the site. It’s been owned by his family and other investors for over 30 years, Klein said, “and that’s the way it’s going to stay.” Whatever they do with the site in the future will respect the residents and protect the property value, he said, and would be something that the city would be proud of.

Reducing the zoning from D1 to D2 is a “Draconian measure,” Klein said, and is a response to other buildings that have been developed in an “untasteful way.” Every other corner of that intersection is zoned D1, he noted. Lowering the height by 40% could be an option, and adding a diagonal requirement is a flexible solution, he said. “I just don’t think that solutions that are so harsh that they really destroy the potential development of a key site in the city makes a lot of sense.”

Klein noted that his voice is the only one on his side. He can’t come to every meeting and he doesn’t have a group of people to argue vehemently on his behalf. “But my voice is important,” Klein said. His family and other investors have contributed millions of dollars to the city’s tax base, and continue to do so. He urged commissioners not to impose D2 zoning at the site.

[Attached to the commission's Dec. 3 agenda was a communication from Scott R. Bonney of Neumann/Smith Architecture, written on behalf of KRG Investments, the owners of the Main and William property. It suggests a third option to consider: Keep the D1 zoning on that site, but reduce the maximum height to 122 feet and add a tower diagonal maximum of 50% of the maximum diagonal dimension of the site. The letter, which includes diagrams showing the impact this proposal, indicates that Bonney will attend the Dec. 3 meeting to make this presentation in person.] [.pdf of Bonney's letter]

The last speaker Doug Kelbaugh, who said he was speaking as a private citizen. [Kelbaugh is a professor at the University of Michigan College of Architecture and Urban Planning.] It’s been a “very productive if tedious process for you,” he told commissioners, but he was in favor of continuing it in some way. He knew there were no additional funds for consultants, but he hoped the commission would ask the city council for more funding to continue the zoning review beyond the current scope.

In particular, he hoped they could look at extending some of their “wise decisions.” For example, he hoped to extend the zoning changes next to Sloan Plaza, with lower height limits, all the way along the north side of Huron to Main Street, or perhaps even further west to Ashley or First. The changes at Division and Ann should also be extended all the way to Main Street or further, he said. Other edges of the downtown – like the church site at Huron and State Street, and the block of Thayer – need to be re-examined, where D1 zoning hits the UM campus. Kelbaugh hoped the city could find the wherewithal to continue its zoning review.

Downtown Zoning Review: Commission Discussion – Affordable Housing

The commission considered this draft recommendation regarding affordable housing:

• Revise the affordable housing premium so that the provision of affordable housing or a contribution-in-lieu of affordable housing is mandatory for receiving any premiums in the D1 or D2 districts.

In reviewing the proposed recommendations at the start of the Nov. 19 discussion, planning manager Wendy Rampson noted that the draft recommendation to add a contribution-in-lieu as an option for the affordable housing requirement was seen as problematic by the city attorney’s office. Any type of in-lieu-of payment is very difficult in Michigan because the state statute does not clearly indicate that it can be done, she reported. It’s more straightforward with elements like parking, she added. But with affordable housing, it’s harder to draw a connection between the need for affordable housing in one location, and addressing that need through a payment to the affordable housing trust fund, which can be used to support affordable housing anywhere in the city, not just downtown. The commission could still include it in their recommendations, she said, but as it moves to city council, it might be tempered by advice from the city attorney.

Kirk Westphal highlighted a communication regarding a more detailed recommendation that had been approved by the housing and human services advisory board (HHSAB). It was included as part of the planning commission’s meeting packet. [.pdf of HHSAB recommendation] The HHSAB recommended modifying the premiums to require building affordable housing or making a cash-in-lieu contribution to affordable housing, and included a detailed formula for calculating contributions:

(i) For purposes of obtaining any premium listed in (_______) above, developments less than 400 FAR shall provide 10% of the total square footage as dwelling units affordable to very low income households. Projects exceeding 400 but less than 700 FAR shall provide 15% of the total square footage as dwelling units affordable to very low income households.

(ii) Payment in Lieu Formula, Discretion of City Council to Allow. Dwelling units affordable to very low income households shall be provided by the development of units on-site, or through an affordable housing contribution “in lieu of” units. The amount shall be set consistent with a “payment in lieu” formula set by recommendation of the HHSAB annually by the end of March each year and submitted to City Council for approval or rejection.

(iii) Calculation for Pro Rata Amounts. When the affordable housing requirement results in a fractional unit, the fractional unit shall be converted to an affordable housing contribution in lieu of units, using the following formula: the fraction shall be multiplied by the per-unit affordable housing contribution as determined by the formula adopted annually by City Council.

(iv) Recommendation of Planning Commission, Approval of City Council required. For each proposed development utilizing a premium to exceed base FAR, the Planning Commission shall recommend approval, approval with conditions, or denial, and City Council, in its sole discretion, may approve or deny payment of an affordable housing contribution in lieu of all or part of units on site.

Westphal wondered whether commissioners would be able to “button down” the legal issue that night related to the contribution-in-lieu approach to affordable housing. Rampson indicated that it would not be possible to determine that at the meeting. She also didn’t think the issue could be handled in isolation from other recommendations.

From left: Ken Clein, Kirk Westphal, Wendy Rampson and Bonnie Bona.

Sabra Briere asked Rampson is there’s any scenario that she’s heard the city attorney support when it comes to cash-in-lieu for affordable housing. Rampson noted that the planned unit development (PUD) approach includes a contribution-in-lieu option. That’s possible because a PUD is “a very special animal under state law,” she said.

But in a standard zoning district, the only requirement for affordable housing is if a developer wants to secure premiums. The question becomes whether there’s a nexus between that requirement and making a payment into a fund that won’t necessarily result in what you’re looking for – affordable housing in the downtown. So one possibility might be to create a separate fund to be used only for affordable housing downtown, Rampson said. But according to the city attorney’s office, even that might not be sufficient, she added.

“Any time you’re asking people for money in exchange for approval of zoning, there is some discomfort about that,” Rampson said. It’s different when you ask for requirements like parking or landscaping, she said. Requiring affordable housing is a bit of a stretch in Michigan, she noted, but it’s the contribution-in-lieu option that becomes really problematic.

Ken Clein said he’s in favor of affordable housing downtown, but he pointed out that you can build a lot more affordable housing outside of the downtown, where land prices are lower. Rampson replied that if you require contributions to affordable housing that can be spent outside of the downtown, you’d be creating an island in the downtown where affordable housing isn’t deemed appropriate – that’s one way of looking at it, she said.

Briere noted that at the Nov. 18 city council meeting, the council had revised the ordinance regulating the Ann Arbor Downtown Development Authority. Starting in FY 2016, the DDA will put aside $300,000 annually to use on affordable housing within the DDA’s boundaries or within a quarter mile of those boundaries. It will be challenging, Briere said, but the goal is to encourage affordable housing downtown. She wondered if the zoning could require affordable housing as a gateway for getting a housing premium.

Rampson replied that because seeking a premium is optional, that might be possible. Briere pointed out that it might then discourage the development of housing altogether.

Bonnie Bona felt that the most effective approach to affordable housing is when it’s part of a mixed-income development. If the city collects affordable housing funds and steers those funds toward property that’s less valuable, “we’re actually segregating,” she said. The gap in housing options is big enough that it requires multiple approaches, Bona said. She wondered if the recommendations to the council can include a recommendation to look more deeply into this issue, working with the city’s housing and human services advisory board.

Later in the meeting, Bona proposed a revised recommendation: “Review options for providing additional affordable housing within mixed-income projects and through a fund, with the assistance of the housing and human services advisory board.”

Ann Arbor planning commissioner Sabra Briere, who also serves on the city council representing Ward 1.

Paras Parekh asked whether they needed to specify D1 and D2 districts, or whether the recommendation was for the whole city. Bona felt it’s an issue for the entire city, but the downtown zoning review is why it’s being addressed. She didn’t want to be restrictive.

In response to another query from Parekh, Bona said the phrase “mixed-income projects” is to prevent segregating affordable housing into one location. “We don’t want housing projects, if we can help it,” she said.

Wendy Woods was concerned about including a reference to the housing and human services advisory board (HHSAB). She didn’t feel the recommendations should be so specific at this point. She made a motion to strike that reference from the recommendation.

Ken Clein said he didn’t feel strongly about it, noting that the commission can always consult with other entities if it wants to. But if the recommendation specifies the HHSAB, he wondered whether they should also specify consulting with the city attorney’s office. The suggestion elicited a laugh from commissioners. Clein said his point is that the recommendation might be getting “too in the weeds” by specifying who they’ll consult.

Rampson noted that HHSAB did provide very specific feedback to the commission regarding the affordable housing issue.

Bona thought that including a reference to HHSAB acknowledges that the commission has received that feedback, and that it’s important. Affordable housing also is a complicated topic – much more so than something like LEED certification, she said. Affordable housing has been a problem for centuries, Bona added, and the city doesn’t seem to be any closer to a solution.

Outcome on amendment to strike the reference to HHSAB: It failed on a 1-8 vote, with support only from Wendy Woods.

Commissioners also discussed the phrasing “and through a fund.” Bona said she’d stayed away from saying “payment-in-lieu” because of concerns that the city attorney’s office had raised.

Clein suggested using the phrase “or through other funding mechanisms” instead. It was accepted by Bona as a friendly amendment.

Another amendment was suggested by Woods, to add “D1 and D2 districts.” Bona said she wanted to leave it vague. She pointed out that the title of the overall resolution is “Recommended Downtown Zoning Amendments.” She thought that adding D1 and D2 would be redundant, and noted that it’s not included in the other recommendations.

Woods pointed out that earlier in the evening, commissioners had discussed concerns about possibly locating affordable housing outside of the downtown. That’s why she wanted to be more specific.

Outcome on amendment to add D1 and D2: It passed on a 6-2 vote, over dissent from Bonnie Bona and Jeremy Peters. Sabra Briere was out of the room during the vote.

The final revised recommendation states:

Review options in D1 and D2 districts with the housing and human services advisory board (HHSAB) for providing additional affordable housing within mixed-income projects or through other funding mechanisms.

Outcome: Commissioners voted unanimously to make this recommendation.

Downtown Zoning Review: Commission Discussion – Residential Premiums

Commissioners discussed how to combine these two separate items from the draft resolution:

• Reduce the residential use premium from 0.75 sf to 0.25 sf per square foot of residential use to encourage the use of other premiums.
• Include other types of premiums in addition to the ones currently available.

The consensus was to make the first recommendation less specific, and to include several examples of the types of premiums that commissioners would like to see. Affordable housing was left out in favor of a broader goal of workforce housing.

Jeremy Peters suggested a premium of the shadow setback, but when planning manager Wendy Rampson asked whether commissioners wanted that as a premium or a requirement, the consensus initially was to recommend shadow setbacks as a requirement.

Planning manager Wendy Rampson.

Ken Clein suggested making LEED silver certification as a premium. Rampson reminded commissioners that LEED certification is already included as an A2D2 premium – silver, gold and platinum certification can result in additional floor-area ratio (FAR). Only two projects so far – at 618 S. Main and 624 Church St. – have proposed using LEED certification as a premium, she reported. And because the developer of 618 S. Main subsequently scaled back that project, that premium isn’t needed. There are also energy efficiency “points” that are required as a gatekeeper to securing premiums.

Bonnie Bona counseled against being too specific at this point regarding LEED certification, and suggested a more general recommendation of increasing the energy efficiency requirements as a premium.

Sabra Briere noted that the LEED premium is the only one that comes with a penalty. That is, if you get a premium to build additional FAR on the premise that the building will be LEED-certified, but it doesn’t achieve that status, then there’s a financial penalty. “I’m not going to even try to replicate the incredibly complex equation that nobody understood sitting around the table except maybe the person who was proposing it – and maybe not,” she said. But it reminded her that when the city grants premiums, there’s an expectation that the city will reap a benefit. One option would be to look at applying a cash penalty for other premiums that aren’t met. She described her suggestion as “a very unformed thought.”

Later in the discussion, Briere pointed out that the directive from council was not to rewrite the zoning ordinance at this point. It was to make broader recommendations. What’s needed is for the council to clearly define the problems that it wants the planning commission to address, and at that point the commission can work on revising the ordinance. Getting into details at this point could really bog down the work, she said.

Rampson cautioned that if the commission sent recommendation to the council that are too general, the subsequent direction from council might not be clear. Briere countered that if the planning commission is too specific, it could result in some councilmembers pushing back because they don’t like the specifics. Briere indicated that if the commission looks like it’s done all the work, that’s not a good approach.

Rampson also pointed out that if more options are provided as premiums, it might dilute the ability to encourage any one particular goal, like residential development.

The final revised recommendation states:

Reduce the residential premium with the goal of encouraging the use of other existing or proposed premiums to compensate for this reduction, such as increased energy efficiency certification, open space with landscape, active ground floor use, balconies, and workforce housing.

Outcome: This recommendation was passed unanimously.

Briere suggested eliminating another recommendation related to residential premiums, which she felt could be addressed elsewhere:

• Revise the residential use premium to be more specific about the types of units that will be eligible for premiums.

Bona agreed, saying she was very opposed to having premiums for specific unit types that could be reconfigured soon after a building is constructed. The buildings need to be designed to be flexible, if they’re going to last a long time, she added. One possibility is to require that developers show the interior design during the site plan phase, to show that the interior could be flexible, she said.

Clein agreed with Bona, saying it would be very difficult to enforce any kind of interior requirement.

Outcome: This recommendation was eliminated on a 7-2 vote, over dissent by Eleanore Adenekan and Jeremy Peters.

Downtown Zoning Review: Commission Discussion – East Huron

Commissioners discussed two related draft recommendations for the East Huron area:

• Reduce the maximum height in the East Huron 1 Character District to 120 feet and add a tower diagonal maximum and/or “shadow setback” requirement to limit shading on adjacent residential properties.
• Rezone the block bounded by Huron, Division, Ann and Fifth Avenue from E. Huron 2 Character Overlay District to East Huron 1 Character Overlay District.

Wendy Rampson explained that if these recommendations are approved, the height limits for properties adjacent to city hall and the University of Michigan Credit Union site – currently a parking lot off of Ann Street, next to city hall – would be reduced from 180 feet to 120 feet.

Kirk Westphal, chair of the Ann Arbor planning commission.

Kirk Westphal clarified with Rampson that owners of those properties weren’t interviewed for this zoning review. He said he wouldn’t be comfortable making the changes proposed for the East Huron 1 Character District, adding that it’s beyond the scope of the council directive.

Diane Giannola said she’s not in favor of shadow setbacks. She wondered how it would affect property rights. Shadows come from everything, including trees, she said, “and when you own property, you don’t necessarily own the sun.” The concept is way too vague, she added, and she’d rather see diagonals used to address the issue of shadowing.

Jeremy Peters didn’t think it was fair to talk about trees in this context. It’s clear that the shadow setbacks refer to buildings, he said. He didn’t support removing it.

Sabra Briere voiced concern over investments that people make in solar panels and alternative energies that rely on solar gain. What happens when something happens next door that shades the investment? It’s a different set of property rights at stake, she said, compared to the rights that Giannola mentioned. Briere supported the idea of shadow setbacks, because the city is encouraging alternative energy investments and they need to be protected. “We have to come up with a way to balance the individual’s rights with the community’s rights,” Briere said.

Westphal was cautious about introducing a completely new tool at this point, and would prefer to stick to responding to the council’s charge.

Paras Parekh wondered why the shadow setbacks were only proposed for the East Huron 1 Character District, and not elsewhere. On philosophical grounds, he had concerns about requiring something in one part of the city that wasn’t required anywhere else.

Rampson noted that Briere’s concerns are more related to solar access law, and the shadow setback requirement wasn’t intended to regulate solar access. The reason Rampson included a mention of shadow setbacks in the draft was because commissioners had discussed the issue at the Nov. 12 working session. It was specified for that particular part of town because of D1 zoning that abuts residential neighborhoods located to the north, “which is probably the worst shadow configuration that you could get,” Rampson said. Perhaps there’s a better term to use instead of shadow setbacks, she added.

Ken Clein agreed that solar access rights are best left for longer-term study.

Bonnie Bona noted that this section of East Huron is the only area where D1 zoning is directly adjacent to residential. She described this part of the downtown zoning as a “major flaw” in the final A2D2 zoning. She thinks an interface district is needed around the entire downtown, but “we need it here more than anywhere.” Especially in the winter, there’s a lot of shade. If the shadow setback isn’t included, Bona said she’d then support rezoning that area to D2. She noted that the Sloan Plaza site could also be built to a greater height, which would impact the residential neighborhood to the north.

Briere cautioned against rewriting the East Huron 1 Character District – in terms of height and shadow setback. That’s too ambitious to do on the fly at midnight, she said. Instead, Briere proposed recommending that the East Huron 1 Character District be revised.

After further discussion – which included distinguishing between “setback” and “step-back” – commissioners reached a compromise wording:

Reduce the maximum height in the East Huron 1 Character District (on the north side of Huron, between Division and State) to 120 feet. Include a tower diagonal maximum and consider a step-back requirement to reduce the shading of residential properties to the north.

Outcome: The revised recommendation was unanimously approved.

Regarding the draft recommendation to rezone the block bounded by Huron, Division, Ann and Fifth Avenue from East Huron 2 Character Overlay District to East Huron 1 Character Overlay District, commissioners were reluctant to make that specific recommendation at this time. Clein noted that it wasn’t part of the charge from the city council. Westphal said he’d be willing to strike it.

Clein and Peters both suggested that instead of this recommendation, the commission should create a separate recommendation that would focus on review of additional sections of the downtown.

Outcome: Commissioners unanimously voted to strike the draft recommendation to rezone block bounded by Huron, Division, Ann and Fifth Avenue.

Downtown Zoning Review: Commission Discussion – Review of Other Areas

Ken Clein proposed adding a new recommendation to request that the planning commission review any area where D1 zoning directly abuts or is within 25 feet of residential or historic districts, and to review whether those areas should be rezoned to D2 or whether to modify the zoning in these sensitive areas.

Ann Arbor planning commissioner Ken Clein, who is a principal with Quinn Evans Architects.

Sabra Briere noted that one area where D1 abuts an historic district is on Main Street. About a third of the block between Liberty and William is not in an historic district, and is zoned D1. “The day that someone proposes a 180-foot tall building [there] is a day that this body will … hear from the public about problems with that,” she said. Briere noted that other areas have been mentioned by members of the public as problematic, including Thayer Street, South University, and some parts of Forest, for example. She supported Clein’s recommendation.

Diane Giannola felt that if any area abutting an historic district must be rezoned, then there likely won’t be any D1 zoning downtown – because there are so many parts of downtown that are designated historic districts. Jeremy Peters noted that Clein was suggesting only to review those areas, not to actually make recommendations at this point.

Wendy Rampson clarified that the current review already includes all the areas where D1 directly abuts residential. The review does not include areas that abut historic districts, she added.

Giannola thought Clein’s proposal was outside of the council’s charge, and that it would require an entirely new study, starting the process all over again. Bonnie Bona also said she didn’t support the proposal.

Briere noted that the planning commission and council have heard from people who want the city to review all character districts. It’s true that it wasn’t in the council’s charge to the commission, she said, but people have brought it up. She suggested recommending that the council consider whether all the areas that aren’t zoned D2 need to be re-evaluated.

Rampson pointed out that the planning commission and staff spent six years creating the A2D2 zoning, which was just adopted in 2009. “If you are really opening the door to rethinking all of the character districts, are you really ready to say that’s a priority, given your work program – to revisit everything in the downtown?”

Briere said the only way to get more specific direction from council is to put a resolution on the council agenda, which she was reluctant to do. Instead, she wants to take a “deep dive” into the Redevelopment Ready project, to see if the city’s existing ordinances match its master plans. She’d also like to get the ZORO (zoning ordinance reorganization) project completed, before taking on something else. She said she was struggling to find a way to indicate that the commission has heard the problems that people have raised.

Wendy Woods noted that for sites next to the University of Michigan, it didn’t make sense to be overly concerned about zoning. “The university can change what it has on campus next year, if they want to. We could be worried about shadowing Hill Auditorium, and it could be gone – because that’s the reality.” She thought the commission should focus on what it was asked by council to do.

After some additional discussion, Clein offered to withdraw his proposal.

Outcome: Clein withdrew his proposed recommendation.

Downtown Zoning Review: Commission Discussion – Other Recommendations

Two draft recommendations were accepted without substantive discussion:

• Rezone the parcel located at 336 E. Ann from D1 (downtown core) to D2 (downtown interface).
• Revise the premium conditions to require compliance with Design Review Board recommendations for a project to receive any premium in the D1 or D2 districts.

Downtown Zoning Review: Commission Discussion – Adjournment

At about 12:30 a.m., commission chair Kirk Westphal said he wasn’t prepared to tackle the remaining draft recommendations. He offered to entertain a motion to adjourn.

Outcome on adjournment: The motion passed 8-1, over dissent from Jeremy Peters.

Downtown Zoning Review: Commission Discussion – Final Public Commentary

After adjournment, Westphal realized he had omitted the final public commentary. The only person remaining was Ray Detter, who told commissioners: “I’ve got a lot to say, but you’re not really interested in hearing it.”

Germain Motors Expansion

Earlier in the meeting, commissioners discussed a proposal to expand two buildings and the parking area for Germain Motors – the former Howard Cooper dealership on South State Street. Planning staff had recommended postponement, to allow the owners to address staff feedback on the project.

Aerial view of Germain Motors site, outlined in green. South State Street is on the left (west) side of this property. Expansion is proposed for the two smaller buildings on the north and center of the site that fronts South State.

The proposal calls for a 4,877-square-foot addition to the Volkswagen building on the northern portion of the State Street frontage, bringing the total square footage to 18,722 for that structure. A 6,429-square-foot addition is proposed for the Porsche/Audi building, in the center of the site, which would create a total building size of 31,097 square feet. The site’s third building, housing the Honda dealership on the southern part of the property, would remain at 36,101 square feet.

Also, the owner – Steve Germain, who attended the Nov. 19 meeting with several members of the project team – would like to add 248 parking spaces, bringing the total number of spaces to 1,039. The new spaces would be in three locations: (1) along the southern half of the South State Street frontage; (2) along the Oakbrook Drive frontage; and (3) in the rear car storage lots. The proposal would require three variances from Chapter 59 (off-street parking) in order to allow tandem parking, to reduce the aisle widths, and to exceed the maximum percentage (30%) of allowable small car parking spaces.

The owner also wants a variance from Chapter 62 (landscaping) to eliminate the requirement for interior depressed landscape islands in the car inventory and display areas.

The total expansion is estimated to cost $5.5 million. In a staff memo, city planners called the project an upgrade to the appearance of the site, but also cited several concerns.

The work would result in the loss of three out of four landmark trees on the property, to be mitigated by planting 11 additional trees. City staff were concerned by that reduction in landmark trees, as well as by the proposed request for planting fewer interior landscaping trees. Another concern was the additional amount of impervious surface that would be created by this expansion.

That was also an issue cited by the Malletts Creek coordinating committee, a group that includes representatives from the city, the office of the Washtenaw County water resources commissioner, the Huron River Watershed Council, and Pittsfield Township. That committee, which is focused on improving the condition of the Malletts Creek watershed, felt that a variance might be justified or mitigated only if the project included offsetting stormwater management on the site – such as green roofs, sand filters, or other low-impact development techniques.

Germain Motors Expansion: Public Hearing

Four people – all affiliated with Germain Motors and its proposed expansion – spoke during a public hearing on the project.

John Oney of Architectural Alliance, the architect for an expansion of Germain Motors – formerly the Howard Cooper dealership on South State Street.

John Oney of Architectural Alliance in Worthington, Ohio, gave an overview of the project. He said it’s their goal to work through any issues and hopefully agree to any conditions that the city deems to be appropriate so that the project can move forward as quickly as possible.

The existing site was “piece-mealed together,” Oney said, so they’d like to develop a comprehensive master plan to upgrade the buildings to the new “image requirements” of the auto manufacturers, to address the working needs of the business as it expands, and to improve the State Street corridor and the dealership’s customer experience. The new design is intended to provide connecting pedestrian walkways throughout the campus, as well as additional landscaping and upgraded building materials, he said.

Oney showed some architectural renderings of the buildings, then introduced Steve Germain. He said Germain had taken “a leap of faith here in these uncertain economic times to acquire the dealership and make some significant improvements.”

Steve Germain, owner of Germain Motors, began by introducing his daughter, Jessica Germain. He told commissioners that they live in Columbus, Ohio, “but don’t hold that against me, please.” He noted that Jessica Germain is a 2004 graduate of the University of Michigan, with strong ties to this community. One of her responsibilities is to help manage this region, and he said he was proud of her work.

Germain described how his business had acquired most of the assets of Howard Cooper Imports about a year ago, noting that Cooper has been a member of this community for over 45 years. They purchased the three dealerships on South State Street, and the rights to four franchises. They took over a business with a great reputation both in the industry and in this community, he said. The business employs 92 people, Germain reported, saying it was an honor to carry on a tradition with such wonderful employees in a vibrant market.

In order for the business to continue to grow and prosper, Germain added, they need to do three things. They need to upgrade the facilities to meet the requirements of the manufacturers. They need to provide ample, safe and convenient parking to enhance the customer experience and allow the business to create more jobs. Third, he said, they need to maximize their storage capacity and grow their inventory to meet the market demand.

Jessica Germain then reviewed the sales for the past 10 months. She said the business has achieved significant growth, beyond industry averages. Ann Arbor’s demographics align with Honda’s target buyers for fuel-efficient and economic products, she said. Honda sales from January through October of 2013 have exceeded last year’s sales by 31%.

Volkswagen sales are up 40% compared to last year, she reported, and sales for Audi have increased 76%. The business services both the Ann Arbor and Toledo markets for the luxury brand of Porsche, Germain said, and sales have increased 89% in 2013 compared to the first 10 months of 2012. In the sale of pre-owned (used) cars, sales are up 108% in 2013.

Jessica Germain and Steve Germain of Germain Motors.

Strengthening the inventory for new and pre-owned sales gives the business an opportunity and range of price points to provide in this market, she explained. Overall, they’ve seen a 55% increase in combined sales, but she said the business still hasn’t met the requirements and expectations of manufacturers. Germain Motors aspires to exceed those requirements, she added.

Steve Germain spoke again, saying that when they acquired the business in September 2012, they soon realized that the potential in this market with these brands would require that they expand the inventory. Their first thoughts were for off-site storage, he said, but it’s not recommended because of the costs involved in security, fencing and shuttling cars back and forth. They also considered a parking deck, but the cost at about $18,000 per space would put the total cost at over $3.6 million. He indicated that the proposal that was before the planning commission is the best approach.

Bob Wanty of Washtenaw Engineering, the project’s civil engineer, noted that there are three issues that the planning staff raised. One is the increased amount of impervious surface. The city also would like to add additional landscaping islands and address some stormwater management issues. The landscaping islands that the city is requiring are located in the storage area, Wanty said, but he argued that the requirement of landscaping islands should apply to parking for the public, not for storage.

Regarding staff concerns over a “heat island effect,” Wanty noted that over 50% of the vehicles sold are lighter in color – silver and white – and these cars would be parked there 24/7. He contended that the site plan exceeds the city’s requirements for interior landscape island area by 2,300 square feet. Wanty noted that the soil is mostly clay, so the landscape islands don’t really result in infiltration. The site has a very good stormwater management system, he said. He described the system, and noted that it meets the county water resources commissioner’s standards.

Germain Motors Expansion: Commission Discussion

Bonnie Bona asked about the requested landscape modifications, and wanted to know whether there are any alternatives if the required landscaping can’t be provided on site – such as planting trees at another location. City planner Matt Kowalski replied that there’s an option of planting trees to mitigate the removal of landmark trees, but it has to occur on public land and meet other standards, such as proving that the mitigation can’t occur on site. The city’s natural features coordinator didn’t feel Germain Motors had met that requirement, he said. This applies only to mitigation trees, Kowalski noted. There are no options like that for trees required under the city’s landscaping ordinance, other than a variance.

Bona pointed out that 103 trees are required to be planted, but the proposal calls for planting 95 – eight trees short of the requirement.

Bona asked about the extension of the parking 32 feet toward State Street, on the south side of the site. Bob Wanty of Washtenaw Engineering replied: “That is not parking. That is display.”

From left: Ann Arbor planning commissioners Diane Giannola and Bonnie Bona, and city planner Matt Kowalski. Kowalski was recently elected to the Dexter city charter commission.

Bona referred to the presentation that Kowalski had given earlier in the meeting, which included a slide that showed cars parked on the lawn. “I can’t let that go,” Bona said. She asked whether the business is proposing to pave that area. Yes, Wanty replied. Are those cars allowed to be parked there now? she asked. “They’re not there,” Wanty said. Kowalski noted that the cars were parked there that morning, prompting Steve Germain to call out: “But they won’t be there tomorrow.”

“This is a huge amount of parking,” Bona said, so the total number of required trees and the depressed landscape islands need to be provided. She understands that their business requires a lot of parking, and that the site is sloped so there area certain areas where parking can’t be located. Because the parking doesn’t directly benefit the public, she said, “I think you have even more of a responsibility to help Tree City plant urban trees in areas that are impervious.” She wouldn’t be voting in favor of a variance. “You’ve got to do your fair share.”

Sabra Briere said she wanted to echo Bona’s comments, saying that an area to display vehicles is still parking. Adding impervious surface impacts the Malletts Creek area, especially since that area has clay soil and the Malletts Creek system is already overwhelmed, Briere said. For her, the big issue is that there will be a lot of polluted water running off that surface.

Ken Clein asked whether other dealerships in town have asked for variances to not put in landscape islands and trees. Kowalski wasn’t sure how many dealerships are left in Ann Arbor. There’s Varsity Ford, but that dealership hasn’t done any recent renovations, he said. There was a Fiat dealership project, but no variance had been requested for that. [Planning commissioners had recommended approval of the Fiat project on West Stadium Boulevard at their Aug. 21, 2012 meeting.]

Clein said he agreed that the requirement for landscape islands shouldn’t be waived, and that the full amount of trees should be planted to mitigate the removal of landmark trees. Otherwise, it would seem like the city is giving the business a free pass, he said. The purpose of planting trees isn’t just because Ann Arbor is Tree City, he said, but because it helps mitigate the impact of climate change a little. “Those eight trees may not save the world, but those eight trees done again and again and again may help,” Clein said.

Paras Parekh asked why the business didn’t feel that the eight trees could be added to the site. Wanty replied that the trees could probably be squeezed onto an area on the site’s slope, but vegetation is already located there and it’s “like a jungle.” Putting in more trees would disturb the existing vegetation, he said, and create the potential for erosion. He noted that the city requires the mitigation trees to be interior to the site, not on the perimeter.

Rick Meader, a landscape architect with Washtenaw Engineering, came to the podium. He said the landmark trees are only characterized as landmark in aggregate. They aren’t “big, majestic oaks,” he said. Three of them are box elders that are being replaced with better trees, he said, including oaks and tulip trees.

In response to a query from Kirk Westphal, Kowalski said the business submitted one alternative plan, which included a parking structure on the lower level of the site. It didn’t result in any landmark trees being removed. Westphal wondered if there were a middle option, in order to preserve the trees but still provide the amount of desired parking. Kowalski replied that there might be other options – such as quadruple stacking – but probably anything would require some sort of variance.

Westphal wondered if quadruple stacking was possible. Wanty said they didn’t look at that option, and it would entail re-aligning the aisles and spaces. It was something they could look at, he said.

Wendy Woods noted that the Malletts Creek coordinating committee had suggested some options, like the use of green roofs and other low-impact development techniques. She wondered whether the business would consider any of these.

Ann Arbor planning commissioners Wendy Woods and Jeremy Peters.

Wanty replied that the site currently drains into a sediment forebay, then into a wetland, then into a second wetland – before it enters Malletts Creek. It’s a good system to break down any oils, he said, and there’s very little silt or sediment that comes off of the site. The new cars don’t leak the fluids that older cars would leak, he noted. “So we’ve really got a clean site here,” Wanty said. That’s why they felt that additional stormwater management wasn’t necessary.

John Oney indicated that a green roof had been considered, but it wasn’t economically feasible so they didn’t pursue it.

“So it looks like what we have is a difference of opinion,” Woods said. Kowalski clarified that the site plan meets the stormwater management requirements. That shouldn’t be confused with a separate issue, he said – the landscaping requirements, and the functions that the interior landscape islands serve.

Bona took issue with Oney’s contention that a green roof isn’t economically feasible. She recommended that he contact A3C Architects, who’ve been monitoring the temperature of their roof – a black section, a white section and a green section. The amount of heat that’s retained from their green roof in the winter, and the amount of heat that’s not absorbed in the summer, significantly reduces the building’s heating and air-conditioning costs, Bona said. A green roof is not just for the environment, she added. There are strong reasons why that greenery moderates the temperature of the roof.

Jeremy Peters echoed some of the previously stated concerns about runoff and water quality. As someone who previously lived near Malletts Creek, he agreed with the coordinating committee’s suggestions. He also agreed with Bona’s suggestion to look at installing a green roof.

Outcome: Commissioners voted unanimously to postpone action on the Germain Motors proposal.

Montgomery Building Apartments on S. Fourth

Planning commissioners were asked to recommend approval of a four-story addition to the existing two-story building at 210-216 S. Fourth Ave., between East Liberty and East Washington in downtown Ann Arbor. It’s known as the Montgomery Building, because from the late 1920s until 1960 it housed a Montgomery Ward’s department store.

The plan calls for creating 32 new housing units, including four studios, 14 one-bedroom, and 14 two-bedroom units.

Aerial view of the Montgomery building (indicated with crosshatches) at 210 S. Fourth Ave. in downtown Ann Arbor.

City planner Matt Kowalski gave the staff report. The estimated $3.8 million project would expand the existing 17,273-square-foot building to 38,373 square feet, with housing on the second through fifth floors. The footprint of the existing building won’t change, and the ground floor would remain commercial space. Current tenants include Salon Vertigo and Bandito’s Mexican Restaurant. The top floor will include a stair/elevator lobby, restroom, wet bar, and access to several roof decks. Part of the fifth-floor roof will be covered in vegetation as a green roof.

The third-floor addition will be set back 11 feet from the existing building’s facade. The fourth floor will be set back an additional nine feet.

Because the building is located in an historic district, it required a certificate of appropriateness from the city’s historic district commission. The HDC granted that certificate at its Sept. 12, 2013 meeting.

The site is zoned D1, which allows for the highest level of density. According to a staff memo, eight footing drain disconnects will be required.

According to a report from the July 10, 2013 citizen participation meeting, the units will be marketed to “anyone who wants to live downtown.” If approvals are received, construction is expected to begin next summer.

Montgomery Building Apartments on S. Fourth: Public Hearing

Three people spoke during a public hearing on this project. Luke Norman, who lives on South Fourth Avenue, wondered if there would be any affordable housing in this development.

Brad Moore, the project’s architect, told commissioners that the project would rejuvenate the building. The plan is to completely reconstruct the facade and give it a look that’s “more characteristic of its heyday,” he said, while adding some additional stories to increase the amount of downtown residential space.

Rendering of proposed Montgomery Building addition.

The hope is to also increase the amount of retail space along that section of Fourth Avenue, he said, in conjunction with the development at Fourth and Liberty. [Moore is also the architect for an expansion project on the adjacent property – a three-floor addition to the Running Fit building at East Liberty and South Fourth, which will create six residential units. That project received a recommendation of approval from planning commissioners at their Oct. 15, 2013 meeting but still needs city council approval.]

The proposed setbacks of the upper floors are intended to prevent a feeling of the building encroaching on the street, Moore said. He said he had additional information if the commissioners had any questions.

Ray Detter noted that the downtown citizens advisory council had looked at this project. The proposed changes will be a marvelous addition to that block, he said, and it’s a positive direction to restore something that’s part of the city’s past and will be part of its future. The advisory council strongly supports the addition of mixed-income housing in that part of the downtown, Detter said.

Montgomery Building Apartments on S. Fourth: Commission Discussion

Bonnie Bona began by taking up a question asked during public commentary: Is there any affordable housing in this project? Brad Moore replied that there’s nothing that would be dedicated affordable housing, but there are some studio apartments – at about 500 square feet apiece – that would have a lower rent than the other units, because of the smaller size. The one-bedroom apartments will average about 750-800 square feet, and the two-bedroom units will be about 950 square feet.

Brad Moore, architect for the Montgomery Building expansion.

Bona said it would be nice to get some market-rate affordable units rather than subsidized affordable housing. She hoped that if the project is forwarded to the city council for approval, it would include pricing for the various units, relative to income levels. For example, would someone who makes 80% or 60% of the area median income be able to afford the rent?

Bona then asked about the building in relation to neighboring parcels. Moore explained that a portion of the building on the north and south sides will be built up to the property line. Bona wondered how it was possible to put in windows there, considering the fact that the building adjacent to this proposed expansion could also add additional floors someday.

Moore said that the developer will be applying for a variance from the building board of appeals in order to install windows on walls that aren’t set back from the property line. He indicated that a city building official has told him that it’s been the city’s practice to grant such a variance for a limited quantity of windows, with the caveat that additional fire sprinklers must be installed to prevent fire from shooting out the windows into the adjacent building.

There’s also the understanding that if the adjacent building increases in height, the windows would be blocked in, Moore said. There are other opportunities for light in the units, so the windows on those sides would be “supplemental,” he said.

Ken Clein confirmed with Moore that the windows on the property line would be non-operable. He also asked about exterior materials that will be used. [Clein is an architect, and typically asks about exterior materials.] Moore explained that some of the color choices were made in response to feedback from the historic district commission.

Wendy Woods asked about the west side of the building, facing a back alley. The units on that side have balconies over the alley – what would those balconies be facing? Moore replied that most of the buildings on the other side of the alley are three stories high. So balconies on the Montgomery Building’s second and third floors would be looking across the alley at other residential units. Moore confirmed for Woods that the trash pickup and recycling takes place in that alley.

In response to another query from Woods, Moore reported that the studio apartments will be in the building’s southwest corner.

Clein asked about the first floor “arcade,” and wondered if that configuration would remain. Moore noted that the arcade walkthrough ceased to exist 10 years ago, when the hair salon expanded across the back of the building. The rear entrance from the alley serves only the hair salon and as an emergency exit. He said there’s been no commitment to a specific layout, so it’s possible that they could reestablish the arcade walkthrough.

Diane Giannola asked if there would be any coordination in the construction of this project and the adjacent expansion at the corner of Fourth and Liberty.

Ann Arbor planning commissioner Diane Giannola.

It’s possible, Moore replied, though he noted that the buildings have separate ownership. The merchants on that street are sensitive about the sidewalks being closed all summer, so there’s an effort not to do that, he said. It depends on the timing of the construction for each project, however.

Jeremy Peters said he’s glad to see a project that could revitalize an area that seems to need some help. He liked the fact that the design would evoke the building’s historic facade, and was happy to see more density in the downtown core.

Bona asked about the building’s mechanicals. She said one deficiency in the city’s zoning code is a lack of requirements to screen the mechanical units. When screening does occur, it sometimes looks worse than just leaving the mechanicals exposed, she said.

Moore explained that there would be a screen of the rooftop mechanicals, behind the penthouse. The building will likely use a heat-pump system, he said, so that the only equipment mounted on the roof will be a boiler and a chiller. There will be a parapet around the perimeter of the roof that’s about two feet tall, and the mechanical screen will rise above that, but will be unenclosed at the top.

Bona wondered what it would look like if someone were to look down onto the roof from a taller building. Moore indicated that there might be room for potential solar panels toward the back of the roof, but three sides in front will have a green roof, wrapping around patios.

Sabra Briere asked about the noise that would be generated by the mechanicals. She hears from people about the noise caused by such heating and cooling elements, especially from residents whose units back up to shared alleys. Moore said he hoped the screening would address that to some extent. He didn’t know how many decibels the equipment would generate. Briere hoped he would keep the noise factor in mind as the project moved forward.

Clein noted that from his experience, most modern boilers and chillers are fairly quiet. [Clein is a principal with Quinn Evans Architects.] Condensers and pressers tend to make a lot of noise, he observed – but those won’t be used in this project. He wondered whether the mechanicals include an emergency generator. Moore replied that the generator will likely be located in the basement.

A slide from the city planning staff’s presentation showing a photo of the 1960 fire at the Montgomery Building on South Fourth Avenue.

Wendy Woods noted that fires had occurred in both the Montgomery Building and the adjacent Running Fit structure – was it the same fire? No, Moore replied. The fire at the Running Fit building pre-dated the Montgomery Building fire, which occurred in 1960. He noted that in doing historic research for this project at the Bentley Historical Library, he was amazed by how many buildings had burned in Ann Arbor. “It seemed to be a big problem,” he said.

Kirk Westphal said people were pleased that the building design respected the historical context. Referring to the city’s master plan, Westphal noted that it strongly encouraged active uses on the ground floor. He asked if the owners were willing to abide by those desires. “Absolutely,” Moore replied.

Westphal also asked about the contractor that would be used for this project – did they use local labor? Moore wasn’t certain but thought that they did. He noted that the contractor is a firm based in Ypsilanti.

Clein pointed out that despite the questions from commissioners, this is the kind of development that’s needed downtown and he hasn’t heard many people object to the project.

Outcome: Commissioners unanimously approved the site plan, which will now be forwarded to the city council for consideration.

Briarwood Mall Restaurants

Planning commissioners were also asked to recommend approval of a site plan and development agreement for two restaurants at Briarwood Mall. [.pdf of development agreement] The project was originally considered at the commission’s Oct. 15, 2013 meeting, but postponed because of outstanding issues.

Angeline Lawrence gave the staff report. The proposal calls for building two new freestanding restaurants – one at 6,470 square feet, the other at 7,068 square feet – on the east side of the Macy’s building at Briarwood Mall, 700 Briarwood Circle. The restaurants would be two chains: P.F. Chang’s and Bravo! Cucina Italiana.

Aerial view of Briarwood Mall. The cross-hatched section indicates the parcel where two new restaurants are proposed, adjacent to Macy’s.

The parking lot north and east of the new restaurants would be reconfigured, reducing the total amount of parking by 188 spaces. Bicycle parking will be added to the north and west entrances to Macy’s.

The estimated cost of the project is $1,577,094. The site is located in Ward 4.

Originally, the planning staff had indicated that the project would require rezoning a portion of the parking lot from P (parking) to C2B (business service. However, according to a memo accompanying the commission’s Nov. 19 meeting packet, planning staff have subsequently determined that because the original 1973 Briarwood Mall zoning anticipated the expansion of Hudson’s (now Macy’s ) to the east, no rezoning is needed.

The city’s planning staff previously had recommended postponement in order to allow the developer to deal with some outstanding issues related to zoning, landscaping, easements and utilities. Those issues are now resolved, according to staff.

For example, concerns had been raised about the location of the area for trash and recycling. That area has been reconfigured and approved by the city’s solid waste staff. Also, plans were eliminated for a new detention pond on the northeast corner of the mall site, based on a recommendation by the Washtenaw County water resources commissioner. Instead, an existing detention pond on that site will be dredged and retrofitted.

Briarwood Mall Restaurants: Public Hearing

The only speaker during the public hearing for this project was Scott Richardson, representing the Briarwood Mall owners. He noted that he and the project’s engineer were on hand to answer any questions.

Briarwood Mall Restaurants: Commission Discussion

Bonnie Bona asked staff to explain how they interpreted “this convoluted site” during their review of the project. She described it as a fairly odd-shaped site, and some of the improvements are being included not just near the restaurants, but elsewhere around the Macy’s building. She clarified with staff that the improvements, such as adding landscape islands in the parking area, are being done in response to the addition of the two restaurants.

Scott Richardson, a representative of the Briarwood Mall owners.

Planning manager Wendy Rampson pointed to a page in the meeting packet that showed the site configuration of the mall and indicated each parcel’s ownership. [.pdf of site configuration] She said that at the Oct. 15 meeting, the planning staff was still struggling to understand how the parcel configuration ended up that way. As far as staff can tell, the parcels inside the mall’s “ring road” never went through a formal land division process, she said. “That was what we tried to untangle.”

Macy’s owns the land where the restaurants are proposed, Rampson explained, so the mall owners – Simon Company – are buying and developing that parcel.

Bona then asked Scott Richardson about the future development of the mall. It’s important to make sure that “we’re not boxing ourselves into something that looks like the past, instead of like the future,” she said. Bona wondered whether the mall site’s subdivisions would prevent the site from more progressive development in the future.

Richardson replied that when the company looks at a master plan for any mall that it’s developing, “we tend to lose sight of the property lines.” When there’s a “win-win” for all of the parties involved, he said, “there’s ultimately a deal that can be done” to allow for what he called “grand development.” Even though parcel lines might change, nothing being done for this restaurant deal will eliminate the possibility for anything in the future, he said. Representatives for Simon Company meet at least quarterly with representatives from the key department store companies, he said, to talk about issues that arise, including opportunities for future development.

As an example, it would be possible to develop the property so that the road in front of the two new restaurants becomes “like an intimate Main Street,” Richardson said, with additional shops, restaurants – or even a parking structure with some residential units above it, built to face the street. He said that everyone recognizes the fact that a lot of parking is underused, and a lot of the site is undervalued and can be improved. It’s not a change that happens quickly, he added, but it’s something “that we certainly have on our plate, to make sure that we think big picture – because the last thing you want to do is sell yourself short in the future for a bird in the hand today.”

Bona said she was glad Richardson “could see more optimism here than I’m seeing, so I’ll take you at your word.” She then asked about the number of trees and bioswales on the site, saying that at first glance it seemed to her to be in excess of what would be required by the two new restaurant buildings. She noted that it seemed to relate to the fact that two parcels were impacting this development – a parcel owned by Macy’s, a the parcel owned by Simon Company.

City planner Angeline Lawrence replied that 169 trees are required by code for the Macy’s parcel, but the city allowed the developer to count some of the existing trees on the site as part of that total. That means that only 133 trees will be added, she said.

From left: Ann Arbor planning commissioners Jeremy Peters and Paras Parekh.

Bona also wondered how the regional detention system worked. Lawrence replied that the existing detention pond is just to the north of the proposed new restaurant site. There’s a similar pond on the other side of Briarwood Circle, she said. The plan calls for dredging sediment from the bottom of the existing detention pond that’s near the to-be-developed site, and to install a new pipe that would allow runoff to flow into that pond.

Rampson added that when Briarwood Mall was developed, a regional detention system was created for the whole area. The detention ponds drain east into Malletts Creek.

Jeremy Peters asked about a possible scenario in which one of the core companies at the mall goes out of business, and was sold to a “less cooperative” holding company. Would the property lines pose any problems in that case? Richardson replied that the property lines have nothing to do with what happens in that situation. There are legally binding documents between the mall developer and the property owner, he explained, that restrict what a retailer can or can’t do with their property. There would also be a dialogue between Simon Company and the retailer, he said, because Simon Company has more invested in Briarwood Mall than any individual retailer, and would “vigorously” protect its asset.

Saying that she frequented the mall, Eleanore Adenekan asked about handicapped parking spaces. Richardson assured her that all of the spaces are being designed to meet current Americans with Disabilities (ADA) codes.

In response to a query from Ken Clein, the project’s engineer – Gary Tressel, with the engineering firm of Hubbell, Roth & Clark in Bloomfield Hills – explained that the lights in the parking lot at Macy’s will be retrofitted with LED fixtures. The new parking area will also have LED fixtures.

Noting that it wasn’t directly related to this project, Wendy Woods asked about a new skating area at the mall. Richardson replied that an inside “faux ice” skating rink was installed in the mall near the JC Penney store. He described how skaters use special shoes with pads to simulate ice skating.

Outcome: The site plan and development agreement was unanimously approved. The proposal will be forwarded to city council for consideration.

Present: Eleanore Adenekan, Sabra Briere, Bonnie Bona, Ken Clein, Diane Giannola, Paras Parekh, Jeremy Peters, Kirk Westphal, Wendy Woods. Also: City planning manager Wendy Rampson.

Next regular meeting: Tuesday, Dec. 3, 2013 at 7 p.m. in the second-floor council chambers at city hall, 301 E. Huron St., Ann Arbor. [Check Chronicle event listings to confirm date]

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This zoning evaluation began earlier this year, following a city council directive to the planning commission on April 1, 2o13 that was prompted in part by the controversial 413 E. Huron development. The council’s direction was to make recommendations to the city council by Oct. 1. Planning consultant ENP & Associates was hired to gather public input and evaluate certain aspects of downtown zoning known as A2D2 (Ann Arbor Discovering Downtown), which was adopted in 2009. ENP’s Erin Perdu took the lead on this project.

Her report had been originally presented at the commission’s Oct. 8, 2013 working session. [.pdf of consultant's downtown zoning report] [.pdf of Appendix A: city council resolution regarding zoning review] [.pdf Appendix B: list of downtown development projects since 2000] [.pdf of Appendix C: public input results]

Commissioners held a public hearing on the consultant’s recommendations that began on Oct. 15, 2013, and continued at their Nov. 6, 2013 meeting. They also discussed the recommendations at a Nov. 12 working session. Based on that discussion, planning manager Wendy Rampson made revisions to Perdu’s original set of recommendations. Rampson drafted a memo and resolution containing these revised recommendations, which served as the basis for the Nov. 19 discussion. [.pdf of Nov. 19 memo and draft resolution]

Commissioners made several amendments during their deliberations on Nov. 19, and adopted the following recommendations, which will ultimately be part of the resolution to the city council. In general, the changes reflect a downzoning in an attempt to lessen the impact of development on adjacent residential neighborhoods:

• Rezone the parcel located at 336 E. Ann from D1 (downtown core) to D2 (downtown interface).
• Reduce the maximum height in the East Huron 1 Character District (on the north side of Huron, between Division and State) to 120 feet. Include a tower diagonal maximum and consider a “shadow setback” requirement to limit shading on adjacent residential properties to the north.
• Revise the premium conditions to require compliance with Design Review Board recommendations for a project to receive any premium in the D1 or D2 districts.
• Reduce the residential premium with the goal of encouraging the use of other existing or proposed premiums to compensate for this reduction, such as open space with landscape, increased energy efficiency certification, active ground floor use, balconies, and workforce housing.
• Review options in D1 and D2 districts with the housing & human services advisory board (HHSAB) for providing additional affordable housing within mixed-income projects or through other funding mechanisms.
• Eliminate the affordable housing 900% FAR (floor area ratio) “super premium.”
• Evaluate the downtown real estate market to determine the effectiveness of premium incentives every 2-5 years.

The only draft recommendation that was not discussed on Nov. 19 was for a parcel located at the southeast corner of Main and William (425 S. Main). A surface parking lot and a building that currently houses DTE offices are located there. Commissioners are expected to weigh two options for that site at their Dec. 3 meeting: (1) Rezone the parcel from D1 (downtown core) to D2 (downtown interface) and establish a maximum height of 60 feet for D2 zoning in the Main Street Character District; or (2) Change the maximum height in the Main Street Character District to 100 feet when within 20 feet of a residential zoning district and add a tower diagonal maximum and/or “shadow setback” requirement to limit shading on adjacent residential properties.

During a public hearing on the downtown zoning review that drew seven speakers, Andy Klein – who’s one of the owners of that Main and William site – spoke against rezoning the property, calling himself the “lone dissenter.” Other speakers at the hearing were in favor of downzoning.

The late hour (about 12:30 a.m.) persuaded most commissioners to adjourn rather than continue the discussion of this item. Jeremy Peters was the only commissioner voting against adjournment.

After the planning commission finalizes and approves its resolution regarding these downtown zoning recommendations, the resolution will be forwarded to the city council for consideration. The intent is for the council to review the recommendations and give direction to the commission about which recommendations to implement. At that point, the commission’s ordinance revisions committee would work with city planning staff to craft actual ordinance language. Any specific ordinance changes would be reviewed by the full commission and ultimately would require city council approval before taking effect. That process would include additional opportunities for public input.

This brief was filed from the second-floor council chambers at city hall, where the planning commission holds its meetings. A more detailed report will follow: [link]

Illustration showing potential development on Main Street between William and Packard, if recommendations for new zoning standards are adopted. The changes would include reduced height and a new diagonal requirement, compared to existing zoning.

The commission’s Oct. 15 meeting also included a public hearing on the recommendations. Ten people spoke.

Although commissioners spent about two hours on this agenda item, they ultimately voted to postpone action and will continue their discussion at a future meeting.

In general, the recommendations – prepared by consultants ENP & Associates – call for some sections of the downtown to be downzoned, to create better transitions between residential neighborhoods and property that’s zoned for denser development. The recommendations also call for mandatory approval from the city’s design review board for any projects that are seeking premiums.

The report had been revised following feedback on Oct. 8. [See Chronicle coverage: "Downtown Zoning Review Nears Final Phase."] The recommendations reviewed on Oct. 15 include: (1) rezone the parcel located at 336 E. Ann from D1 (downtown core) to D2 (downtown interface); (2) rezone the Municipal Center parcel from PL (public land) to D2; (3) reduce the maximum height in the East Huron 1 Character District (on the north side of Huron, between Division and State) to 120 feet and add a tower diagonal maximum of 130 feet; (4) rezone the D-zoned parcels on the block bounded by Huron, Division, Ann and Fifth Avenue (where city hall is located) from East Huron 2 Character District to East Huron 1 Character District; (5) change the maximum height in the Main Street Character District to 150 feet when within 20 feet of a residentially zoned area and add a tower diagonal requirement of 50% of the maximum parcel diagonal; (6) rezone the south half of the parcel at 425 S. Main (between William and Packard) from D1 to D2.

In addition, several recommendations relate to premiums: (1) require approval of the design review board for a project to be eligible for any premium; (2) revise the residential premium to be more specific about the types of units that will be eligible for premiums; (3) revise the affordable housing premium so that the provision of affordable housing is mandatory for receiving any premiums; (4) eliminate the affordable housing 900% FAR (floor area ratio) “super premium”; and (5) include other types of premiums in addition to those currently available.

This zoning evaluation began earlier this year, following a city council directive to the planning commission that was prompted in part by the controversial 413 E. Huron development. Planning consultant ENP & Associates was hired to gather public input and evaluate certain aspects of downtown zoning known as A2D2, which was adopted in 2009. ENP’s Erin Perdu has taken the lead on this project, and attended the commission’s Oct. 15 meeting to answer questions.

The public hearing was held prior to a discussion by the commission. After the public hearing was opened and four people had spoken, Sabra Briere challenged a statement that commission chair Kirk Westphal had made at the opening of the hearing. Westphal had stated that anyone speaking at the Oct. 15 public hearing could not speak again when the hearing is continued at a future meeting. After debating the issue, commissioners voted 5-3 to allow people to speak at the public hearing over multiple meetings. Supporting that approach were Briere, Jeremy Peters, Paras Parekh, Bonnie Bona and Eleanore Adenekan. Three commissioners – Westphal, Diane Giannola and Wendy Woods – were in favor of one speaking turn only.

The commission will eventually vote on a final set of recommendations to be forwarded to the city council for consideration.

This brief was filed from the second-floor council chambers at city hall, where the planning commission holds its meetings. A more detailed report will follow: [link]

413 E. Huron from the northwest. Division Street is in the foreground in this rendering – from the site plan submission by the developer.

The vote on 413 E. Huron came at the same meeting when the council finally took action on a proposed moratorium on D1 site plans – by voting not to enact a moratorium, but to direct the planning commission to review D1 zoning regulations.

The city’s planning staff had recommended approval of this project, noting that it met all standards for new development in that part of town. Estimated to cost $45 million, the proposal calls for combining three lots on that corner and building a 14-story, 271,855-square-foot apartment building with 216 units (533 bedrooms) and underground parking for 132 vehicles. [.pdf of aerial map for the project]

The northern edge of the site is adjacent to the Old Fourth Ward Historic District. Existing structures – including a house on North Division that was built in 1901, and a small shop at the corner that most recently housed Papa John’s Pizza – would be demolished.

The first floor would include about 4,000-square-feet for retail space. On the third floor, the building would include a range of facilities for residents, including a gym, yoga studio, business center and outdoor pool. According to a planning staff memo, more than 40% of the apartments would have two bedrooms, with other apartment sizes including one-bedroom units (19%), three-bedroom units (10%) and four-bedroom units (28%). Bike parking and bike lockers would also be provided on site.

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

Voting against the project at the planning commission’s Feb. 5 meeting were Sabra Briere, Ken Clein and Wendy Woods. Voting to recommend the project were Diane Giannola, Bonnie Bona, Tony Derezinski, Kirk Westphal and Eleanore Adenekan.

Zoning approved by city council as part of the A2D2 rezoning project would allow for the type of building being proposed. The site is zoned D1, the highest density allowed. However, nearby residents who oppose the development – including many living along North Division and in the nearby Sloan Plaza – object to its size and massing. The city’s historic district commission also passed a resolution opposing the project.

Public commentary has been extensive – at the two planning commission meetings as well as at the three city council meetings when the topic of downtown development was considered, related to the proposed moratorium on downtown site plans. The public commentary has included roughly 100 speaking turns.

The vote to postpone action on 413 E. Huron took place at around 1:30 a.m. after councilmembers questioned representatives of the developer about various aspects of the site plan. They focused on an analysis of natural features in the site plan.

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]

Would a moratorium on D1 zoning site plan review be consistent with a view that Ann Arbor is “radioactive” to development? Components of this graphic include the D1 zoned areas of downtown Ann Arbor (darker red), D2 zoned areas (orange-ish), the symbol for radioactivity and a question mark. At a recent public meeting, the characterization of Ann Arbor as “radioactive” for developers was cheered by some residents who would prefer to see smaller-scale growth, if any. The city council considered but did not enact a moratorium on March 18.

The resolution gives specific direction to the planning commission to review the D1 zoning code and to make recommendations to the city council on possible revisions to the code.

In the original resolution, the planning commission was supposed to complete its work on or before June 4, 2013, and the city council was to act on the planning commission’s recommendations on or before August 19, 2013. But the specific timeline for the review was amended out of the resolution, in favor of a clause that indicates a specific timeline and scope of work will be forthcoming from the council. Also amended out of the resolution was any reference to a moratorium on site plans in areas zoned as D1.

There was some sentiment on the council for a moratorium, but possibly with the exclusion of projects already in the review process. Voting to keep some kind of moratorium as a part of the resolution were Jane Lumm (Ward 2), Chuck Warpehoski (Ward 5), Mike Anglin (Ward 5), Sumi Kailasapathy (Ward 1) and Sabra Briere (Ward 1). The vote on the final resolution, without the moratorium, was unanimous.

Not affected by the council’s resolution is 413 E. Huron, located on the northeast corner of Huron and Division streets. It’s a 14-story apartment building that would include 216 units totaling 533 bedrooms, with underground parking for 132 vehicles.

Also not affected by the council’s resolution is a proposed project at 624 Church Street – a 14-story building with 75 apartments and a total of about 175 bedrooms. The council gave the site plan for 624 Church Street unanimous approval at its March 4 meeting.

The wording of the original resolution exempted site plans that had already received the planning commission’s recommendation of approval by Feb. 19. So the 624 Church Street project would not have been encompassed by the originally proposed moratorium, because it received a recommendation of approval from the city planning commission on Jan. 15, 2013.

The moratorium was initially postponed from the council’s Feb. 19, 2013 meeting. That was the first council meeting after the 413 E. Huron project failed to achieve a recommendation of approval from the city planning commission. Under the originally proposed language of the moratorium resolution, the 413 E. Huron project would not have been allowed to move forward, because its site plan did not receive that recommendation of approval.

The outcome of the planning commission’s vote on Feb. 4, 2013 was not a recommendation for approval of 413 E. Huron, because the 5-3 tally in favor did not give the project the required six-vote majority. But even without a planning commission recommendation, a developer has the option of bringing a site plan proposal for consideration by the city council, which the 413 E. Huron developer did. The project appeared on the March 18 agenda, but had not been considered by the time this brief was filed at around midnight.

As they had at the council’s Feb. 19 and March 4 meetings, supporters and opponents of the moratorium addressed the city council during the public commentary period at the March 18 meeting. In written correspondence, legal action was intimated by some on both sides of the issue. A partial list of written correspondence included:

• A2Y Chamber opposition to moratorium
• Zaragon Place (Larry Deitch) in support of moratorium
• Norm Hyman in support of moratorium
• Norm Hyman comments in support of moratorium
• Christine Brummer in support of moratorium
• Multiple residents in support of moratorium
• historic district commission’s resolution in support of moratorium
• Susan Friedlaender (developer’s attorney) opposition to moratorium
• Pat Lennon (developer’s attorney) opposition to moratorium

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]

The conditions on the D1 designation would have included restrictions on height and floor area that are less than what’s allowed in “unconditioned” D1. For example, the by-right height limit in D1 is 180 feet, but one condition the owner of the property – Philip Sotiroff – wanted to place on the property was a 145-foot height limit.

That 145-foot limit, however, is more than twice the limit of the parcel’s current D2 zoning, which allows buildings only as tall as 60 feet. Currently at the site – on the south side of South University, between Forest and Washtenaw avenues – is the three-story Park Plaza apartment building.

The site is adjacent to a D1 parcel to the east, where the Landmark apartment building is being constructed, at 601 S. Forest. But the 1320 S. University property also abuts lower-density residential zoning. Single-family homes are located to the south of the site, and a fraternity is located to the west.

The South University area was an intensely debated part of the A2D2 downtown rezoning initiative, which the city council finally ratified on Nov. 16, 2009 after more than two years of planning work. As part of that process, the city planning commission had initially recommended a zoning map that assigned D1 zoning to the 1320 S. University parcel. The city council subsequently drew the lines differently, which resulted in a D2 designation for the parcel, and sent the map back to the planning commission. The planning commission then revised some parts of its map, including the designation for 1320 S. University.

More recently, at its Feb. 7, 2012 meeting, planning commissioners voted unanimously not to recommend that 1320 S. University be rezoned from D2 to D1.

The city council’s vote was just its initial consideration of the request – a “first reading.” A rezoning request, like any ordinance change, requires initial approval, followed by a public hearing and a final approval at a subsequent meeting. But often, councilmembers will advance an ordinance change to a second reading, if they have not settled on a position and are interested in hearing the sentiments that might be expressed at a public hearing. So the fact that the council rejected the proposal on first reading can be taken as a measure of the council’s strong opposition to changing the zoning that was agreed on as part of the A2D2 process.

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]

Kirk Westphal, an Ann Arbor planning commissioner, served on the city task force that helped developed design guidelines for downtown development. (Photo by the writer.)

One person, former planning commissioner Ethel Potts, spoke during a public hearing on the topic. Potts said she was glad the design review comes early in the project approval process, but she wondered how the review would be used – that could be a challenge. Commissioners discussed the issue only briefly before the vote.

In the city’s project approval process, the design review would take place before the mandatory citizen participation meeting, so that the design review board’s comments could be incorporated into the project’s design before it’s presented to citizens. However, developers aren’t required to act on the review board’s recommendations. Though the review process is mandatory, implementation of the board’s suggestions is voluntary.

Downtown Design Review Program

The city council had approved a program of design guidelines at its Feb. 7, 2011 meeting, and also appointed a temporary design review committee. In addition, they asked the planning staff and planning commission to draft ordinances that would lay out details of a design review program in the city’s code. On Tuesday, planning commissioners got an update from staff on the code changes, held a public hearing on the proposal, and briefly discussed it before voting to recommend approval by the city council.

Downtown Design Review: Staff Report

Wendy Rampson, who leads the city’s planning staff, gave a brief history and overview of the design guidelines process, which is part of the broader A2D2 (Ann Arbor Discovering Downtown) initiative. She noted that it’s an issue they’ve been talking about for many years, going back to the 1980s. More recently, in 2007, the city council identified five priorities that emerged from the Calthorpe study, which had been commissioned by the city to plan a strategy for future downtown development. Design guidelines were one of those priorities. [Other aspects of A2D2 include downtown zoning changes; historic preservation updates; changes to the development process; and parking and transportation strategies.]

An advisory committee was formed to work on developing design guidelines with city staff and a consultant, Winter & Co., who had been hired to lead workshops and community discussions. In 2009, a set of design guidelines was presented to the community. Feedback at the time, Rampson said, was that the guidelines were too difficult to understand – that they needed to be simplified, with examples to illustrate the different design concepts. It was also felt that a design guidelines process should be developed too.

In early 2010, the council dissolved the original advisory committee and formed a new design guidelines task force to review the guidelines and develop a review process. Members included city councilmember Marcia Higgins (Ward 4), planning commissioner Kirk Westphal, Tamara Burns, Bill Kinley, Dick Mitchell, Peter Pollack and Norm Tyler. That group met 34 times, and came up with recommendations that the city council approved at its Feb. 7, 2011 meeting after holding a working session on the topic in January.

Also at that Feb. 7 meeting, council appointed a temporary design review committee, which will become the official design review board (DRB) after changes to the city code are approved. Its members are: Chet Hill (landscape architect); Mary Jukari (landscape architect); Dick Mitchell (architect); Tamara Burns (architect); Paul Fontaine (planner); Bill Kinley (developer); and Geoff Perkins (contractor). [For additional background on the process of developing design guidelines, see Chronicle coverage: "Ann Arbor Hotel First to Get Design Review?"]

To codify the design review process, two new sections were added to the city code: (1) Section 1:239 “Design Review Board” was added to Title 1, Chapter 8; and (2) Section 5:126 “Design Review Board review for certain downtown properties” was added to Title V, Chapter 57. [.pdf file of proposed city code changes – new additions to the code are underlined; strike-throughs indicate deletions.]

The design review will apply to certain downtown properties:

• projects on land that’s zoned D1 or D2, or rezoned to PUD (planned unit development) within the Downtown Development Authority district;
• projects that result in an increase in usable floor area;
• projects with a site plan that requires planning commission or city council approval, a PUD site plan; a planned project; or an administrative amendment that significantly alters the appearance of the building from the public right of way.

Projects located in a historic district will not go through this design review process, because those properties would be covered by the Historic District Commission design review.

As the first step in a project approval process, developers would submit preliminary project design plans to the DRB, along with an application and fee. The review process would occur before the mandatory citizen participation meeting.

At the DRB meeting, the developer will present the project to board members and discuss whether it meets the intent of the downtown design guidelines. No public commentary will be allowed at the meeting. The DRB will make a report of its finding, which will be forwarded to the planning commission and city council.

If a project goes through the design review process but later changes significantly, the project is allowed – but not required – to reapply to the DRB for another review.

Downtown Design Review: Public Hearing

Ethel “Eppie” Potts was the only speaker during the public hearing on Tuesday. “This has indeed been a long process,” she began, adding that it seems this is the end of the years-long A2D2 process. She said she wished that the different elements of A2D2 had been better coordinated, so that they could be more effective as a whole. Potts wondered what planning commissioners expected out of the design guidelines and review board. She said she asked some people she knew what they thought the design guidelines would accomplish. Their expectation is that the guidelines will result in a much better quality of architecture, suitability, scale, context of buildings downtown, she reported. But many of these results stem from zoning, not design guidelines, she observed.

Potts wondered what the legal force of the design guidelines would be. She thought the process was good, since the design review comes at the beginning of the approval process – even before the mandatory citizen participation meeting. The review board will provide a report on each project, but what will planning commissioners do with that feedback? It will be a challenge for them to decide how much weight to give the review board’s input, Potts said, and how that will fit in with all the legal requirements they have to consider. “We are all going to be learning to what degree we can make this all fit together,” she concluded.

Downtown Design Review: Commissioner Discussion

Bonnie Bona said it was exciting to see these design guidelines finally ready to be implemented. Responding to Potts’ comments, Bona said it’s important to have a document that tells developers what the community wants, rather than having to ask for changes later in the process. Giving developers a better idea of what the city wants to see in a building will make a significant improvement in the projects that are brought forward, she said. It was important to get this process started, she added – but they need to be willing to make changes to it in the future, if necessary.

Eric Mahler pointed to one of the review board’s duties as stated in the revised code:

1:239 (3) c: To report periodically to City Council regarding the effectiveness of the design review process and make recommendations for any changes to the Downtown Design Guidelines.

What’s meant by effectiveness, he asked, and how will it be measured?

Kirk Westphal, who served on the design guidelines task force, said his understanding is that for each project, the board will track what kind of information and feedback is most helpful to the developer. The hope is that there will be communication between the board and the city council, and that the process can be tweaked if needed. The language in the code is to ensure that there’s an expectation of feedback, he said.

Tony Derezinski, who serves on the planning commission as well as city council, said that if certain design guidelines prove particularly useful or popular, there’s the possibility that the council could enact them into the city’s zoning ordinances.

Outcome: Planning commissioners unanimously recommended approval of amendments to Ann Arbor’s city code that establish a design review board and design review procedures. The item needs city council approval before taking effect.

Communications from Staff

Wendy Rampson – head of the city’s planning staff – gave several updates during her report to the commission. She noted that the city’s budget for fiscal 2012 would be presented at the April 11 city council work session, followed by an April 13 town hall meeting, where city administrator Roger Fraser will answer questions from the public. [The meeting will be held from 7-9 p.m. at the studios of Community Television Network (CTN), 2805 S. Industrial Highway.] The council will formally receive the budget at its April 19 meeting, and is expected to give final approval in May.

Rampson reported that a farewell open house for Fraser – who’s leaving the city at the end of April to take a job as deputy treasurer for the state of Michigan – will be held from 1-4 p.m. on Friday, April 29 at city hall, 301 E. Huron St.

At the planning commission’s April 12 work session, they’ll be discussing details of their April 26 retreat, Rampson said. They’ll also talk about possibly moving ahead on a request for proposals (RFP) to seek a consultant for the State Street area corridor planning process.

Finally, Rampson noted that at their April 19 meeting, the city council is expected to take a final vote on both licensing and zoning regulations for medical marijuana facilities. City staff is preparing to implement these new regulations, in case they are in fact approved on April 19. Several different areas are involved in addition to planning staff, she said, including representatives from the city attorney’s office, the police department, and the clerk’s office. She said she’d keep the commission updated on that progress.

Present: Bonnie Bona, Jean Carlberg, Tony Derezinski, Diane Giannola, Eric Mahler, Evan Pratt, Kirk Westphal, Wendy Woods.

Absent: Erica Briggs.

Next regular meeting: The planning commission has canceled its April 21 meeting because no projects are ready to come forward. Its next regular meeting will be on Tuesday, May 3, 2011 at 7 p.m. in the city hall second-floor council chambers, 301 N. Huron St., Ann Arbor. [confirm date]

Sabra Briere (Ward 1) confirms with an Ann Arbor resident at the city council's Sunday caucus that the map she's sketched reflects accurately the block bounded by Huron, State, Washington, and Division streets. In the background, Mike Anglin (Ward 5) and Stephen Kunselman (Ward 3). (Photo by the writer.)

The downtown zoning ordinance package – known as A2D2, which the council has approved on two prior occasions at a “first reading” – will be given a public hearing, with a vote also scheduled for Monday night. In addition, the downtown design guidelines will have its public hearing continued, which started on Oct. 5. No vote on design guidelines is scheduled for Monday.

Also receiving discussion at caucus were the six projects that were submitted before last Friday’s Nov. 13 deadline, in response to the city’s request for proposals to use the space on top of the Fifth Avenue underground parking garage.

Also the council’s agenda, but not receiving discussion among councilmembers who attended the caucus, is the council’s formal acceptance of the Huron River and Impoundment Management Plan (HRIMP) from the city’s environmental commission – but not the plan’s recommendations related to Argo Dam.

And a consent agenda item that requests funds to purchase additional electronic parking meter equipment contains in its description a plan to install meters in new areas that have not been previously identified.

Finally, there’s a whole new category of item on Monday’s agenda – a category that raises questions.

Councilmembers attending the caucus were Mayor John Hieftje, Sabra Briere (Ward 1), Mike Anglin (Ward 5) and Stephen Kunselman (Ward 3).

Design Guidelines

Prior community-wide discussion on proposed design guidelines for Ann Arbor’s downtown has focused on the lack of a mandatory process into which the guidelines would be integrated. [Previous Chronicle coverage: "Downtown Design Guides: Must vs. Should" and "Mandatory Process Likely for Design Guides"]

At Sunday’s caucus, the councilmembers who were present heard from representatives of a citizen volunteer group that has been meeting and going through the proposed design guidelines. Overall, their message was that more time was needed to get the guidelines right: “There’s no reason to hurry this. It’s too important to hurry,” one resident said.

Among the specific areas needing focus, they said, were the following:

• Coordination between new zoning codes, design guidelines and the Downtown Plan.
• Specification of a design review process; the city’s new public participation ordinance helps define a “schedule” for a project approval process – where does the design review process fit into this schedule?
• Elimination of the checklist, because “checking all the boxes doesn’t mean good design.”
• Context of new construction in terms of respecting surrounding buildings.
• Use of example projects on which to test-run the guidelines before they’re formally adopted.
• Use of premiums for additional floor area ratios (i.e., taller buildings) only when a project is approved by a design review panel; this would be a way to leverage compliance.
• Improvement of photographs and graphics in the design guidelines document.
• Sustainability should be included in the design guidelines document not just in the context of new buildings, but also in the context of rehabbing older buildings.
• Character districts are not completely articulated and in some cases seem rather “open ended.”

Another area of concern was the need to clarify language so that the the meaning would be clear to three distinct groups of readers of the document: the general public, developers, and members of the design guideline panel.

Sabra Briere (Ward 1) was intrigued by the idea of using compliance with design guidelines as a condition on granting premiums – but had questions about how the ordinance language would be crafted to achieve that goal. She also wondered, as a  practical matter, how a developer might deal with the need to provide a design that assumed premiums, when the developer could not know in advance that the design would meet with the approval of a design guidelines review panel.

The composition of such a design review panel was suggested by one representative of the volunteer group to have five members: one member of the public, an architect, an urban planner, a specialist in historic preservation, and a real estate developer. The number of people on the review panel was not an area of complete consensus among the volunteer group, with one alternative having two representatives from each professional category, for a total of 10 or more people.

There was, however, a consensus that the members of such a design review panel should not also be members of other development-related boards and commissions in the city, e.g., the planning commission or the Downtown Development Authority.

Mayor John Hieftje raised the question of whether sufficient numbers of such professionals could be found who’d be willing to serve on a design review panel, and if so, whether they would find themselves with frequent conflicts of interest when projects they were working on came before the panel for review.

A2D2 Zoning

During discussion at the Sunday caucus, much of the history of the A2D2 was drawn out.

The A2D2 rezoning initiative was meant to simplify Ann Arbor’s downtown zoning code by reducing multiple zoning districts into something easier for city staff, developers, and the public to grasp. In broad strokes, the outcome of the A2D2 process was the establishment of two zoning districts for the downtown: D1 (core) and D2 (interface). One key defining feature of D1 is its 180-foot height limit, as contrasted with a maximum of 60 feet in D2. That D1 height limit applies across all D1 areas except for a swatch along East Huron and in the South University area, where the height limit for D1 is 150 feet.

For the South University area, the planning commission had originally envisioned all of South University as a D1 area and passed along that recommendation to the city council. The city council saw things differently, and carved out roughly half the South University area as D2. That meant that the council could not accept the planning commission’s proposed Downtown Plan, which specified all of South University as “core.”

But unlike zoning code, over which the city council has the final decision, the Downtown Plan requires agreement between the planning commission and the city council – on master planning documents, the planning commission has equal standing with the council.

The outcome of that interplay between the city council and the planning commission was a greatly reduced D2 area in South University, compared to what the city council had wanted. Council’s amendment to its originally passed A2D2 zoning – with its large D2 area in South University – was substantial enough that the ordinance had to be brought back again for a “first reading.” [All ordinances are heard by the city council at a "first reading" and a "second reading," before a vote is taken.] Here’s a more detailed chronology:

• April 4, 2009: City council passes A2D2 Zoning “first reading” – version with South University larger D2.
• April 20, 2009: City council refers Downtown Plan back to the planning commission [Useful backround in previous Chronicle coverage: "What's Your Downtown Plan?"]
• May 19, 2009: Planning  commission revised slightly different Downtown Plan with smaller D2 in South University.
• June 15, 2009: City council accepts revised Downtown Plan with smaller D2 in South University.
• July 6, 2009: City council postpones A2D2 Zoning “first reading” – version accepting smaller D2 in South University.
• July 20, 2009: City council again postpones A2D2 Zoning “first reading” – version accepting smaller D2 in South University.
• Sept 9, 2009: City council passes A2D2 Zoning “first reading” – version accepting smaller D2 in South University.
• Nov. 16, 2009: City council’s agenda includes A2D2 Zoning “second reading” – version accepting smaller D2 in South University.

Some of the discussion at caucus centered on the question of how rezoning affected property values. Hieftje allowed that it was important to remember when rezoning, the city is rezoning property that is owned by people.

One resident focused on the block that includes the First Methodist and First Baptist churches downtown – bounded by Huron, State, Washington, and Division streets. She observed that the new construction at the corner of Washington and Division [411 Lofts] would already violate D2 zoning if it were to be zoned that way, but wondered if it was possible “to grandfather it in.” Stephen Kunselman (Ward 3) explained that it was possible, and that it would simply be a “non-conforming use.”

Another resident wondered why it was not possible to “down-zone” when it was clearly possible to “up-zone.” Sabra Briere (Ward 1) said that from a legal point of view, it was always easier to give than to take.

That led to a discussion of the fact that by up-zoning a parcel, there could be a kind of “taking” from the owners of smaller residential properties adjacent to the up-zoned parcels.

Underground Parking Garage: What Goes on Top?

A topic on several residents’ minds was the request for proposals the city had made for use of the area on top of the underground parking garage currently beginning constructed on the lot along Fifth Avenue, next to the library. The deadline for submission of proposals was last Friday, Nov. 13. The city has received six different proposals.

One sentiment expressed at Sunday’s caucus was that all six should receive interviews, given that it was a relatively small number. It falls to the selection committee to determine which proposals are to advance to the interview stage, but on Sunday, Mayor John Hieftje stressed that the city council could determine to hear whatever proposals it wanted.

The selection committee consists of Stephen Rapundalo (Ward 2), Margie Teall (Ward 4), Eric Mahler (planning commission), John Splitt (DDA board), and Scott Rosencrans (Park Advisory Commission).

At caucus, there was support for inclusion of a proposal for a community commons, which was one of the six submitted. In response to the suggestion that there was not adequate open space downtown, Hieftje pointed to the University of Michigan Diag, West Park, the Arboretum, and Liberty Plaza, which he said needed to be redesigned to be all on one level.

Hieftje also pointed out that the city was planning to build a greenway, and that the surface parking lot at First & William had been designated for future use as a park in that greenway corridor. What had been common to the majority of parkland additions to the city’s park system in the time he’d been in office, said Hieftje, was that they were natural areas.  Natural areas, he continued, posed lower costs for security and for maintenance than urban parks.

Referencing the development of the top of the underground parking garage, Stephen Kunselman (Ward 3) cautioned against speculative development, saying that there’d been two examples of less-than-successful attempts: Tally Hall and William Street Station. The former developer of William Street Station, which would have been located on the site of the old YMCA at the northwest corner of Fifth and William, has filed a lawsuit against the city over the city’s cancellation of the project.

Kunselman suggested exploring public-public partnerships, saying it made more sense to think of putting the new library on top of the parking structure, then simply selling the old library parcel and the old YMCA lot. [The library board had planned to build a new library on the site of its current downtown building at the northeast corner of Fifth and William, but called off the project late last year, citing the poor economy.]

After caucus, Kunselman pointed out to The Chronicle that the public-public involved with putting a new library on top of the parking structure would be a four-way partnership: the city of Ann Arbor, the DDA, the Ann Arbor District Library, and the Ann Arbor Public Schools. AAPS still holds its board meetings at the library, and there’s a historical relationship between the library and the school system, dating back to when the library system was actually a part of the school system.

A possible different approach to the RFP process the city had undertaken with the top of the underground parking garage, suggested Kunselman, would be to sell the air rights to a developer, with that developer then able to bring a project forward in a standard site-plan review process. In order to get the open space the city wanted, deed restrictions could be placed on the sale of such air rights.

Cell Phones

One resident at caucus wanted to know what happened to a proposed cell phone ordinance that had been mentioned at a previous council meeting. Mayor John Hieftje said that Stephen Rapundalo (Ward 2) was still working on it. [At the council's Aug. 6 meeting, Rapundalo indicated that he and Tony Derezinski (Ward 2) had asked the city attorney's office to draft an ordinance to prohibit cell phone usage and texting while driving, and they expected it to come before council at its Aug. 17 meeting. It didn't come forward then.]

Single Stream Recycling

A question was raised about the investment being made in single-stream recycling infrastructure: Was a $0.5 million investment worth it during this economic time, when the payback period could be seven years? Mayor John Hieftje pointed out that there was more being invested than $.05 $0.5 million. Discussion of the dollar amounts clarified that in any case it was not general fund money being invested. [At its Nov. 5 meeting, council approved roughly $3.35 million related to the program. See previous Chronicle coverage: "Council OKs Recycling, Transit, Shelter"]

HRIMP: Dam-in/Dam-out

Also on the council’s agenda is its formal acceptance of the Huron River Impoundment and Managment Plan. That report contains 32 recommendations – the resolution to be considered by council will accept 30. The two recommendations that the resolution leaves out are those that say the dam should be removed or kept in place. The HRIMP committee could not reach a consensus on the dam-in/dam-out question, and included both recommendations in its final report, which was completed in the spring of 2009.

Acceptance of the HRIMP could set the stage for the city council to contemplate making a dam-in/dam-out decision, or if not, then at least to consider a previous resolution to repair the toe drains in the earthen embankment along the headrace. That resolution had been tabled at the council’s Oct. 19, 2009 meeting. [Chronicle coverage of that meeting: "Still No Dam Decision"]

Parking Meters

An item on council’s consent agenda for Monday will appropriate up to $87,000 for purchase of electronic parking meters for the Wall Street area. This is an area that was identified as a place where additional parking meters could be installed to generate additional revenue, and which the city council approved as a part of the FY 2010 budget.

The supporting memo on the agenda item indicates that city staff overestimated the number of meters that could be installed in the area, which means that revenue projections associated with the FY 2010 budget would not be met. The memo indicates that other areas have been identified for meter installation to make up for the shortfall [emphasis added]:

On June 15, 2009, City Council approved the installation of parking meter equipment in various locations within the city via Resolution #R-09-233. Wall Street was one of the areas identified for installation of equipment for 115 spaces. As staff began the field work for the installation, it was noted that the original count of 115 spaces did not account sufficiently for drive approaches and no-parking areas. The space count for Wall Street has been updated to 71 spaces for metering. This decrease in metered spaces will decrease our projected meter revenue by approximately $80,000.00. Staff has identified an additional area for meter installation that will be presented to council during discussions about potential budget adjustments for the current fiscal year.

Kunselman’s Questions

In reviewing the council’s agenda online, The Chronicle noticed a novel kind of item – attachment of a communication from a councilmember with questions about agenda items asked of the city administrator and city attorney. In this case, the questions were from Stephen Kunselman (Ward 3):

PH-1 A2D2 Design Guidelines

What is the state enabling legislation that allows for a community to enforce mandatory compliance with community-adopted design guidelines (also known as “design standards”)?

What is the case history for legal challenges to mandatory compliance with community-adopted design guidelines? Specifically, has a community legally defended in a Michigan Court withholding a certificate of occupancy for violating a community-adopted design guideline for a building permitted, constructed, and compliant under the State Building code enforced by the municipality?

DS-6 Contracts for West Park Improvements

Are funds from the voter approved Park Millage being used for this project? If so:

Are any funds from the Park Millage being directed to the 1% for Art Fund? If so:

Please provide the voter approved Park Millage language that authorizes said funds to be directed to public art. If such language is not explicit, then, please provide a written legal opinion that substantiates the Administration’s position that voter approved Park Millage funds can be directed to other uses such as public art by Council majority approval.

If such is the opinion, is it legally defensible for the City to adopt a 1% for the Homeless program using the same rationale?

Are funds from the Stormwater Fund, a utility enterprise fund, being directed to the 1% for Art Fund? If so:

Please provide a written legal opinion that substantiates the Administration’s position that utility enterprise funds, including loans from the State, can be directed to public art by Council majority approval. If such is the opinion, is it legally defensible for the City to adopt a 1% for the Homeless program using the same rationale?

Given the phrasing of at least some of the questions, which request an opinion from the city attorney, their answers could be expected to be filed with the city clerk’s office as required by the city’s charter, which reads in relevant part:

The Attorney shall:

(1) Advise the heads of administrative units in matters relating to their official duties, when so requested, and shall file with the Clerk a copy of all the Attorney’s written opinions

From the public notices published in the Oct. 1, 2009 edition of the Washtenaw Legal News: "Ann Arbor City Notice, Notice of Public Hearing on Proposed A2D2 Downtown Design Guidelines."

Ann Arbor City Council Sunday night caucus (Oct. 4, 2009): At its Sunday night meeting attended by only three councilmembers – Mayor John Hieftje, Sabra Briere (Ward 1) and Mike Anglin (Ward 5) – downtown zoning was again center stage.

A dozen or so residents attended the caucus and many of them addressed the changes that can be traced in the draft documents for A2D2 downtown building design guidelines from Oct. 15, 2007 to April 30, 2008, to Aug. 28, 2009, and most recently in the Sept. 30, 2009 version of the document.

The council will open a public hearing on the proposed guidelines on Oct. 5, but is not scheduled to vote on the matter until at least Oct. 19. At caucus, Hieftje said that the public hearing might be left open until Oct. 19 and that it was possible that no vote would be taken then – there was “no rush,” he said.

The complaint of many of those who addressed caucus was this: A commitment to the design guidelines as a compulsory part of project review had been gradually written out of the various drafts.

The challenge in following the changes to the draft was made more difficult, some speakers contended, by the fact that the city had altered its strategy for publicizing public hearings. That’s a strategic necessity driven by the fact that the closing of The Ann Arbor News leaves The Washtenaw Legal News as the only local “newspaper of general circulation.” Other issues that came up at caucus included an item on Monday’s agenda to spend $122,480 to have the consulting firm Clarion Associates to review the city’s zoning code – as well as master plans, and other documents related to development – for inconsistencies. Clarion has offices in Colorado, Florida, Illinois, North Carolina, Ohio, and Pennsylvania.

Although an ordinance addressing toy guns returns to Monday’s agenda, it will likely be put off again – this time to be tabled instead of postponed to a date certain. Caucus also previewed an extension of a moratorium on the installation of parking meters in residential neighborhoods.

Design Guidelines Draft: A Work in Progress

The latest draft of the design guidelines document, which is a part of the A2D2 rezoning process, was released by the city on Sept. 30. The specific guidelines themselves seem to be materially the same as those in the Aug. 28 draft, which underpinned the city council’s mid-September joint work session with planning commission and the Downtown Development Authority board. [See previous Chronicle coverage: "Downtown Design Guides: Must vs. Should."] However, the role that those guidelines play in the project review process has changed in the Sept. 30 version as compared to the Aug. 28 draft. To get a clearer picture of how the guidelines’ role has changed since the earliest draft, we’ve excerpted the language in relevant part, dating back two years.

[Oct. 17, 2007 Draft] The Design Review System …
Design Advisory Resource Panel A special panel will be established to provide advice to staff in making design review decisions. The majority of this group shall be design professionals, but it should also include some downtown property owners and community advocates. The panel will meet on an as-needed basis. Since their actions will only be advisory, no formal hearing will be required. All meetings will be open to the public and advance notice will be given in order to give the public an opportunity to attend their meetings. The panel will provide their advice to staff on the interpretation of the design guidelines as needed/requested …

Six months later, the “system” had become a “process.” But the notion of a panel or a board of some kind was retained.

[April 30, 2008 Draft] Design Review Process …
Design Advisory Panel. A special design advisory panel will be established as a resource for the decision-making process. Their role will be advisory only. Staff may draw upon the expertise of this panel for interpreting the design guidelines. Applicants may also request the assistance of the panel as part of the review.

More than a year after that, the “process” had become a discussion of “application” of the guidelines. No notion of a review panel is included in the Aug. 28 draft. But there is a specific requirement that a submitted project include a statement by  developers explaining how their projects meet the goals of the guidelines :

[Aug. 28, 2009 Draft] Application of the Design Guidelines …
Compliance with the design guidelines is voluntary but applications for site plan approval in the D1 and D2 zoning districts must include a Design Guidelines Statement describing how the proposed project relates to the priority guidelines in Chapter 2: General Design Guidelines and any priority guidelines for the relevant character district in Chapter 3: Design Guidelines for Character Districts. Refer to the Land Development regulations within Chapter 57 of the City Code for specific requirements.

Those regulations in Chapter 57 would need to be enacted – there’s nothing currently in the code requiring such a statement.

Considered as a whole document, the  latest version of the guidelines includes some superficial differences – mainly the symbol used to designate high-priority guidelines. It’s been changed from the “Texaco Star” symbol to a tree – which to The Chronicle’s eye appears to be the same tree that appears in the city of Ann Arbor’s seal.

By way of material differences between the Aug. 28 and the Sept. 30 drafts, there is no reference to specific requirements in Chapter 57 of a statement that’s required from a developer:

[Sept. 30, 2009 Draft] Application of the Design Guidelines …
The design guidelines in this document apply to development on all properties within the Downtown Core (D1) and Downtown Interface (D2) zoning districts. For properties that are in a designated historic district, refer to the separate Design Guidelines for Historic Districts. When considering a project downtown, property owners, developers and architects are encouraged to refer to the downtown design guidelines. Compliance with the design guidelines is voluntary.

There is also a checklist included in the appendix to the Sept. 30 draft, but there is no role in the project review process specified for it. So in terms of the scale of voluntary-to-compulsory described at the council’s joint work session by the consultant on the project, the changes in the draft documents correspond to a change from (3) to (1).

1. Completely voluntary: Design guidelines exist as a resource for developers. Developers are free to look at the guidelines or not. They’re free to incorporate the guidelines into their downtown projects or not.
2. Obligatory process, voluntary compliance – a checklist: As a part of the site plan approval process, developers must submit a statement evaluating their project against a checklist of design guidelines. The statement would explain how a project does and does not meet the intent of the design guidelines. Regardless of how the project stacks up based on the developer’s self-evaluation or planning staff’s evaluation and feedback, the developer would not be legally compelled to change the project based on the design guidelines alone.
3. Obligatory process, voluntary compliance – a design review board/panel: As part of the site plan approval process, a design review panel/board reviews the proposal independently of city planning staff with respect to meeting the intent of relevant design guidelines. The panel/board would issue a written opinion of their evaluation, but the developer would not be legally compelled to change the project based on that opinion.
4. Obligatory process, obligatory compliance: As part of the site plan approval process, a design review panel/board reviews the proposal independently of city planning staff with respect to meeting the intent of relevant design guidelines. The panel/board would issue a written opinion of their evaluation and that opinion would be legally binding. Otherwise put, a project could be denied based on a design review board’s assessment.

As previously reported, the direction to the consultant, Winter & Company, to craft the document in a way that presented the guidelines as voluntary came from the A2D2 oversight committee this past summer. The three-member committee consists of Marcia Higgins (city council, Ward 4), Evan Pratt (planning commission), and Roger Hewitt (DDA board).

Residents at caucus pointed out that the Sept. 30 draft had come just a day before the public notice had been published – and the publication of that notice had been in a newspaper some of them didn’t know existed: The Washtnaw Legal News.

Publication of Public Notices

The closing of The Ann Arbor News has had an impact on the city of Ann Arbor’s ability to cost-effectively meet its legal obligations to publish notices, as well as to adequately disseminate the information. The topic has come up recently with great frequency, most recently at the last regular meeting of the city council.

From The Chronicle’s Sept. 21 city council meeting report:

During public commentary on the need to adopt a sense of “diminished astonishment” when trying to follow public events, Jim Mogensen mentioned the fact that the public hearing on City Place had been published in the Detroit Free Press, but not in AnnArbor.com’s print edition.

It’s worth noting that the state statute requires that a newspaper be in publication for a year before it meets the legal requirement for publication of legal notices – so AnnArbor.com, which started publishing in July 2009, doesn’t qualify.

During a break in council’s meeting, city clerk Jackie Beaudry clarified for The Chronicle that from the point of view of cost, the Washtenaw Legal News is the city’s preferred choice, but that sometimes the timing of the once-a-week Legal News publication schedule forces the city to resort to the more expensive Detroit Free Press. Compared to the old Ann Arbor News, Beaudry said, the Free Press notices cost 10 times as much.

It was the Washtenaw Legal News (Oct. 1, 2009 edition) that the city used to publicize the Oct. 5 public hearing on the design guidelines. The Legal News is a weekly publication that comes out on Thursdays. Subscribers, who currently pay $5 per year, receive their copy of the paper in the mail.

One resident at caucus described her frustration visiting the Legal News website, discovering that she needed a subscription to see the content, then having difficulty finding the notices after she subscribed.

Mayor Hieftje acknowledged the challenge now faced by the city in meeting its legal obligations for publication, and suggested that the charter amendments to appear on November’s ballot would address part of that challenge. However, as Sabra Briere (Ward 1) pointed out, the amendments to the charter do not address printing. [The proposed amendments would allow the city to satisfy its legal obligations for publication of ordinances by posting them on its own website.]

One idea floated by a resident at caucus was to recruit the University of Michigan Record and/or the Michigan Daily, which both have printed editions, in the effort to publicize public hearings and the like. The idea involved expanding the distribution area beyond campus.

In the course of the discussion among councilmembers and residents, an important distinction crystallized: Legal obligation versus effective dissemination. Part of the challenge in using the Legal News for effective dissemination of information is related to its weekly publication schedule. City council rules allow changes to its agenda up until the last minute, with recent revisions to those rules only requiring members to use “best efforts” to make such changes by the Friday before a Monday meeting.

Asked at caucus why the council had not enforced more discipline on itself with respect to these rules, Briere said that in her service on the rules committee, for late agenda changes she’d weighed in for language like “emergency” or “rare occurence,” but that she’d been talked out of it. There were, she said, occasions on which the council needed to be able to respond quickly to a situation. The response from the resident who raised the question: The council always has the option of suspending the rules. Briere summed up by saying, “It’s difficult to change people’s mind when life has been convenient.”

For reference, here’s how the State of Michigan defines “newspaper,” which is the source of the city of Ann Arbor’s challenge in meeting its legal obligations as well as serving the public interest.

Michigan Compiled Laws 691.1051: Newspaper; definition; publication of notices.

Sec. 1. The term “newspaper” as used in any statute of this state, except the revised judicature act of 1961 relative to the publication of a notice of any kind, shall be construed to refer only to a newspaper published in the English language for the dissemination of local or transmitted news and intelligence of a general character or for the dissemination of legal news, which

(a) has a bona fide list of paying subscribers or has been published at not less than weekly intervals in the same community without interruption for at least 2 years, and

(b) has been published and of general circulation at not less than weekly intervals without interruption for at least 1 year in the county, township, city, village or district where the notice is required to be published. A newspaper shall not lose eligibility for interruption of continuous publication because of acts of God, labor disputes or because of military service of the publisher for a period of not to exceed 2 years and provided publication is resumed within 6 months following the termination of such military service,

(c) annually averages at least 25% news and editorial content per issue. The term “news and editorial content” for the purpose of this section means any printed matter other than advertising.

If no newspaper so qualifies in the county where the court is situated, the term “newspaper” shall include any newspaper in an adjoining county which by this act is qualified to publish notice of actions commenced therein.

Zoning Code Overhaul

Residents asked the caucusing councilmembers to provide some clarity on a resolution to approve $122,480 for a contract with the consulting firm Clarion Associates to review the city’s zoning code. Sabra Briere (Ward 1) explained that there was money in the city attorney’s budget to reorganize the city’s zoning ordinances to make them more compatible with each other.

After caucus, Briere cited for The Chronicle as an example of problems with compatibility various wetlands regulations, which had arisen during the contentious approval process for the 42 North development. [Briere voted against the project when it was brought forward as a matter of right proposal, based in part on the interpretation of wetlands rules.]

Briere clarified that the work to be done by Clarion is not the A2D2 process and does not involve the substance of the code. She said that for her, given the cost, the question about the need to resolve conflicting language was this: Is this the year to do it?

Here’s the rationale for the legal work to be done by Clarion, taken from the administrative memo accompanying the resolution:

The current zoning and development ordinances have many issues that make it difficult to use. The issues can be summarized as: 1) the overall organization structure is cumbersome and it can be challenging to find code sections; 2) related standards are often contained in different code sections and can be difficult to navigate; 3) a lack of clarity in code language makes the code difficult to interpret; 4) there are some ordinance gaps and provisions that are out-of-date or may have minor inconsistencies with state law, and 5) the use of terms is inconsistent.

The professional services agreement with Clarion Associates is for consulting services to reorganize eleven different chapters of the Ann Arbor City Code and to address the identified issues to produce an integrated, internally consistent and user-friendly version that is: 1) comprehensive – to eliminate cross referencing between code sections to determine standards governing development and redevelopment; 2) clear and internally consistent; 3) usable, both internally by staff and externally by the public; 4) enforceable and legally defensible based on objective standards and Michigan enabling laws; and 5) adaptable and structured to make it easy to amend or to add/ delete provisions in the future.

Material changes to the code will not be addressed in this project. This effort will focus on the development of a solid framework so that future code changes – both technical and substantive – can be more easily incorporated. Material code changes will be undertaken as a rewrite of zoning standards following the development of the City of Ann Arbor Master Plan: Land Use Element, Phase II: Update Land Use Recommendations, a three-year process scheduled to begin in 2010. Material code changes that may surface as part of this effort will be collected in a “Suggestions for Future Changes” document for use as a part of the future zoning rewrite effort.

Toy Guns

At the council’s Sept. 8 meeting, a second reading was heard of an ordinance that would allow enforcement of prohibitions against so-called look-alike weapons. Sabra Briere (Ward 1) had raised questions about the adequacy of the language in the ordinance. [See Chronicle coverage: "City Council Begins Transition."] For that meeting, the city attorney’s office had asked that the resolution be tabled so that the language could be rewritten.

The council voted to postpone the resolution – until Oct. 5. As Briere clarified at caucus, the attorney’s office had actually wanted a tabling of the resolution (with no date fixed). No changes have been made to the language in the interim. As a consequence, explained Briere,  the request from the attorney’s office is again to table the resolution so that adequate time can be put into reworking the language.

Based on her deliberations at the Sept. 8 meeting, Marcia Higgins (Ward 2) might float the idea of simply voting down the ordinance, instead of tabling it, and letting it come back clean, thus eliminating the need to track changes from one version to the next.