Signs held by advocates for medical marijuana before the start of the Jan. 3 Ann Arbor city council meeting. Stephen Postema is the city attorney for Ann Arbor, and also president of the Michigan Association of Municipal Attorneys, a section of the Michigan Municipal League. Postema has pushed for a licensing scheme that some medical marijuana advocates say violates the state statute. (Photos by the writer.)

Inside at the meeting, the council ultimately delayed their vote on an initial approval of a licensing scheme for medical marijuana dispensaries, cultivation facilities and home occupations. That initial vote is now scheduled for Jan. 18, with final approval expected in early February, along with zoning regulations affecting medical marijuana-related businesses. The licensing proposal to be considered by the council at its next meeting will be significantly different from the one that they started with Monday night, due to various amendments councilmembers approved, before voting to postpone the measure.

Amendments included: eliminating home occupations from the licensing scheme; increasing the number of licenses to 20 for dispensaries and 10 for cultivation facilities; creating a licensing board; removing reference to “misdemeanor involving a controlled substance”; and revising the language of required internal signage.

The council also dispatched with several other pieces of major business, with scant deliberation. Those included: final approval of revisions to the city’s area, height and placement regulations in the zoning code; final approval for adoption of the Michigan Vehicle Code and the Uniform Traffic Code; appropriation of funds for footing drain disconnection; approval of new fire inspection fees; and a contract for weapons screening services at the new municipal center.

Medical Marijuana Licensing

At Monday’s meeting, the council considered initial approval of a licensing scheme for medical marijuana dispensaries and home occupations.

Before the council's Jan. 3 meeting started, Sabra Briere (Ward 1) talked with city attorney Stephen Postema.

Key elements of the original draft licensing scheme included: no more than 15 licenses would made available citywide for cultivation facilities and dispensaries; preference for applications would be given to facilities operating before Aug. 5, when the city council passed a moratorium on the use of facilities for dispensing and cultivation; provision of names and addresses of various individuals associated with a facility; installation of security measures; posting of signs advising that use of marijuana is against federal law; consent to inspections of unspecified frequency. [.pdf of original draft licensing ordinance]

After considerable public commentary, the council contemplated a series of seven amendments to the licensing proposal, most of which were approved – most significantly the exclusion of home occupations from the proposal. The postponement of the initial vote on the licensing until the council’s Jan. 18 meeting means that a final vote on licensing will not come until February. That also resulted in a rescheduling until February of the final approval of zoning regulations on medical marijuana, to which the council has already given its initial approval.

Medical Marijuana Licensing: Public Commentary

Tony Keene had distributed a yellow two-side sheet to the audience that described an alternative strategy to the city’s proposed licensing scheme. During his public commentary turn, Keene highlighted some of main points of the alternative. Key among them is the idea that “dispensaries” are in concept not lawful under the Michigan Medical Marijuana Act, but that business models developed along the lines of “compassion clubs” and “co-ops” are. So the proposal would be to close down all dispensaries and start from scratch – with compassion clubs and co-ops and individual caregivers making up “caregiver centers.” The caregiver centers could include, among other amenities, lockbox storage for members. Dispensaries would be recast as surplus management shops that would purchase surplus medical marijuana from registered caregiver centers. The proposal also called for a non-partisan impartial commission to provide oversight.

Keene cautioned against fear and greed as two words that could destroy the conversation.

[With respect to lockbox storage for members, this appears to be part of the business model for a facility in the Mt. Pleasant area, that successfully defended against a recently attempted shut-down of the facility. The trial court opinion in State of Michigan v. Compassionate Apothecary found that the facility is operated in conformance with the state statute and does not pose a public nuisance. The inclusion of storage for members, who all have state-issued registry cards, is relevant to any proposed licensing scheme that includes regular search and inspection of facilities, because the state statute prohibits searches based on possession of a registry card.

City attorney Stephen Postema has defended regular searches and inspections of facilities as part of licensing on the grounds that seeking to operate a business is a different proposition from seeking to be a patient or a caregiver by obtaining a registry card. But the consequence of using a registry card to obtain marijuana – through membership in a co-op or compassion club – is that one's possessions could be subject to search due to licensing requirements. The contrast between searches based on possession of a registry card and searches based on separate licensing requirements for businesses could be seen as a distinction without a difference.]

Dennis Hayes told the council that he’d sent them letters expressing his view. He recalled from his days in law school, he said, how the Bill of Rights provides citizens with protection when the government possesses broad overreaching power that is unequal with respect to citizens. He reminded the council of the city’s charter amendment on medical marijuana, which also gives priority to individual rights. Hayes said that the proposed licensing scheme overlooks these individual rights. He asked the council to defer passage of the licensing scheme on its first reading and to form a committee to study the issue further.

Robin Schneider introduced herself as an advocate for medical marijuana from the Lansing area. She expressed concerns about the licensing requirements for home occupations, which would require those who are cultivating marijuana in their homes to place their names on a list. She expressed concern about what might happen if the wrong person got hold of the list. She said she did not believe that such a list would be enforceable under the state act.

Rhory Gould spoke against the stigma associated with use of marijuana to provide comfort and relief from pain. People should not have to suffer, as his grandmother had, because of their refusal to ingest marijuana due to the stigma associated with it. He said when the city council passed its moratorium, he had been in the process of setting up a business to help give patients access to marijuana. He suggested that a limit on licenses of 15 is too low, given that there could be an influx of patients who live in more conservative neighboring communities. He spoke against the idea that caregivers should have to be licensed as home occupations. He also raised the possibility that some of the information required of licensees could violate HIPPA regulations.

Charmie Gholson noted that despite the memo issued by U.S. Attorney General Eric Holder, people in Michigan have been raided by federal authorities in the last two months. [.pdf of Holder Memo, authored by David W. Ogden] Patients fear having their information placed in yet another database, she said. Gholson addressed the idea that licensing would help prevent confusion on the part of law enforcement by saying that the Michigan Medical Marijuana Act did not change the responsibilities of a police officer – an insight she attributed to attorney Mark Matt Newburg. She drew an analogy to a driver’s license – when an officer stops a motorist, the first step is to ask the driver to produce a driver’s license.

Matthew Abel echoed the sentiment that a working committee should be formed. He noted that federal search warrants had been served in June 2010 on the Michigan Department of Community Health regarding registry information. He called the limit of 15 licenses unnecessary and anti-competitive.

Rick Thompson introduced himself as the editor of Michigan Medical Marijuana Magazine. He ticked through some of the approaches to medical marijuana that other communities in Michigan had taken. He noted that in some communities, regulations had been enacted so that no facility could meet the requirements of the regulations, citing Macomb County as an example. Inspection requirements had resulted in people declining to apply for permits in Ferndale. In Livonia, an ordinance had been passed declaring the primacy of federal law and as a result, a lawsuit has been filed, he said. He noted that the litigants are patients – voters. He asked that the council strike the parts of the licensing that require registration of names and addresses of business owners, as well as the licensing requirement on home occupations.

Chuck Ream demonstrating outside the Washtenaw County administration building before the Jan. 3 Ann Arbor city council meeting.

Chuck Ream criticized the characterization by city attorney Stephen Postema of parts of the Michigan Marijuana Act as “nonsensical.” Ream said the demonstration outside the building before the meeting started was to encourage the city of Ann Arbor to give up its membership in the Michigan Municipal League. [Postema and Ream have a contentious history on medical marijuana. Postema is president of the Michigan Association of Municipal Attorneys (MAMA), which is a section of the Michigan Municipal League. The MML has issued a statement indicating that it has no position on medical marijuana. However, MAMA has commissioned a study on the issue from Gerald Fisher, professor of law at the Thomas M. Cooley Law School.]

Ream criticized the approach that has been taken to the Michigan Medical Marijuana Act in some communities – trying to block it by appeal to the supremacy of federal law, having the state legislature ”mess with” it, and creating ordinances that will spur endless litigation. That approach, Ream said, would force activist judges to change the law. He criticized the inclusion of marijuana as a Schedule I drug, which he said was for drugs with no medicinal value and that are extremely dangerous. He compared the situation with Germany in the 1940s or the Middle Ages, when governments went along with the “repression of the day.”

Brandy Zink spoke on behalf of Americans for Safe Access. She thanked the council for engaging in the conversation. She described herself as a cancer survivor and an epilepsy patient, who visits Ann Arbor dispensaries. She said she would not be inclined to move to Ann Arbor if the licensing ordinance results in list-keeping. She stressed the importance of confidentiality. She said the state law is clear about prohibiting searches. She suggested that the council consult other sources of information besides the U.S. Drug Enforcement Administration and the MML.

Medical Marijuana Licenses: Council Deliberations

The council deliberations were structured by a series of seven amendments that Sandi Smith (Ward 1) and Sabra Briere (Ward 1) had worked out. Smith distributed a printed sheet with a summary of amendments, making the discussion somewhat easier to follow.

Medical Marijuana Licenses: Council Deliberations – Amendment 1 (Home Occupations)

The first proposed amendment was to eliminate Section 6:418, which sets forth licensing requirements for home occupations. It also replaced references to “cultivation facilities, dispensaries, and/or home occupations” with the phrase “cultivation facilities or dispensaries.” By way of background, a “home occupation” is defined in the city’s zoning code as: “An accessory use of a nonresidential nature which is performed within a dwelling or within an accessory building, and conducted by members of the family residing in the dwelling, and not more than one additional employee.”

Margie Teall (Ward 4) indicated she would support the amendment. Smith said she would also support it – removal of home occupations from the purview of the licensing scheme would take care of a lot of concerns that had been expressed about list-keeping and privacy, she said.

In response to a query from Carsten Hohnke (Ward 5), Briere said she was not certain that zoning would be affected by the amendment. The point, she said, was that the licensing provision for home occupations would entail the city asking to inspect homes in ways that the state law doesn’t allow. Wiring and plumbing should be handled with ordinary permitting, she said, but that is different from collecting private information.

Hohnke followed up with a query to city attorney Stephen Postema about the extent of the overlap between the proposed zoning regulations. He wanted to know what the rationale was for having the language in the original proposal. Postema responded by saying that he’d been asked by the council to provide a range of options. He indicated that he disagreed that the state law did not cover the city’s ability to include the language. He told the council that their issue was to determine whether there’s something of concern to them – it’s within the power of the city to do this, he said.

Regarding the speakers during public commentary who had expressed concerns about privacy, Postema allowed that some of their concerns would be alleviated by deleting the section. Their fear was, he said, being borne out at the state level. The federal authorities are interested in the state’s lists, he conceded. The activity of the federal authorities, Postema said, did not reflect the sentiments expressed in the Holder memo [.pdf of Holder Memo, authored by David W. Ogden].

The language on home occupations had been included in the proposed licensing scheme, Postema said, at the request of the police department so that they could avoid wasting resources on an investigation. He rejected the comparison that Charmie Gholson had made to a driver’s license during her public commentary. He reiterated that Briere was correct insofar as the privacy concerns public speakers had expressed would be taken care of, but he told the council that they needed to consider whether there are other concerns that they had.

Mayor John Hieftje indicated that based on discussions with the police, there’s a concern about growing facilities, in that other people might find out about them and a threat could develop from outside individuals.

Outcome: The council voted 6-4 to strike home occupations from the licensing proposal. Voting for the amendment were: Christopher Taylor (Ward 3), Stephen Kunselman (Ward 3), Margie Teall (Ward 4), mayor John Hieftje, Sandi Smith (Ward 1), Sabra Briere (Ward 1). Voting against it were: Stephen Rapundalo (Ward 2), Marcia Higgins (Ward 4), Carsten Hohnke (Ward 5), and Tony Derezinski (Ward 2).

Medical Marijuana Licenses: Council Deliberations – Amendment 2 (Number of Licenses)

The second amendment proposed was to modify the cap of 15 total licenses – for dispensaries and cultivation facilities combined. This was to be achieved by striking a section and substituting a new one:

6:415 (4) There shall be no more than fifteen (15) licenses total made available for cultivation facilities and dispensaries and no limit on the number of licenses available for home occupations.

6:415 (4) The first year’s licenses shall be capped at a number 10% higher than the facility licenses applied for in the first 60 days. Any license terminated during the license year returns to the City for re-issuance.

In explaining the rationale for the proposal, Sandi Smith (Ward 1) called the number 15 arbitrary. The idea was to have the number of licenses relate to the level of demand. The additional 10%, she said, would not amount to a large number of additional licenses, even if a much larger number of businesses applied. If 50 businesses applied, that would only mean an additional five licenses.

Stephen Rapundalo (Ward 2) raises his hand to be recognized to speak. To his left is Marcia Higgins (Ward 4).

Stephen Rapundalo (Ward 2) wanted to know if the city attorney’s office had any specific idea as to how many businesses were currently operating. City attorney Stephen Postema indicated that they had a list of about 12 – three are in zoning districts that would not permit their operation if the proposed zoning regulations are passed. Kristen Larcom, an assistant city attorney, clarified that they estimated about 18 businesses total – she was not certain if they were all in operation prior to the enactment of the moratorium. Sabra Briere (Ward 1) clarified that the numbers they were discussing reflected a combined total of dispensaries plus growing facilities.

Rapundalo wondered if it was possible that some businesses opened after the moratorium was enacted.

Marcia Higgins (Ward 4) expressed concern about opening up the number – 50 is more than the city can support, she said, so she would not support the amendment.

Responding to Higgins, Smith said that if the city thinks there are only 18 businesses, but there are actually 50, then those businesses must be operating in a very careful and non-obtrusive manner.

Briere noted that the licensing scheme clearly stated that the business had to already be in operation before the moratorium was enacted.

Christopher Taylor (Ward 3) tried to elicit from Postema an articulation of any possible benefits to having an absolute versus a flexible number. Postema’s response did not seem to indicate any particular benefit.

Briere suggested that the city attorney’s office had a pretty good idea of how many businesses there currently are – she thought it was more than 10 but less than 50.

Higgins suggested modifying Smith’s amendment by stipulating 20 as the number of licenses. Smith indicated she might consider that a “friendly” amendment to her amendment if it were 25. Mayor John Hieftje said the communities that have had the most problems had widespread proliferation of businesses. He felt the licensing scheme would be unenforceable without a set limit, but suggested separating dispensaries and cultivation facilities, capping each at 15.

Recognizing that only one of the existing businesses is a cultivation facility, Margie Teall (Ward 4) suggested a different mix: 25 licenses for dispensaries and 10 for cultivation facilities, which Smith accepted as a friendly amendment to her amendment.

Taylor allowed it is possible that there are businesses currently operating that the city is not aware of, but said in light of the outreach that the city attorney’s office has done, he’d wager that something like 18 is a relatively good number. Based on that, he said, he felt that the 25/10 numbers were “excessive.” He allowed, however, that to date “it has not been an apocalypse.” Still, he did not feel that multiplying the number of licenses in that way was warranted.

Smith clarified that what was being proposed was not 25/10 as the number of licenses. Instead, the number would still result from the number of applications in the first year plus 10%, with an absolute cap of 25/10. Taylor clarified with Smith that the number of licenses would be the lesser of: (1) the number of applications plus 10%; and (2) 25 licenses for dispensaries and 10 for cultivation facilities.

Left to right: Stephen Kunselman (Ward 3), Sandi Smith (Ward 1) and Carsten Hohnke (Ward 5).

Stephen Kunselman (Ward 3) said that the strategy they were contemplating seemed like a reasonable way to deal with any “surprise” about the actual number of facilities that were operating. He expressed some concern that if the cap were too low, it might cause the size of individual businesses to increase.

Postema ventured that one constraint on the size of a business is fear of being raided by the federal government. Hieftje suggested that a numerical combination he could support would be 20/10.

Carsten Hohnke (Ward 5) wanted to have a better idea of what the actual demand is for medical marijuana. Postema allowed that this is hard to assess but he ventured that businesses in California and Colorado that were looking at Michigan were not coming to Ann Arbor to fill a need for patients in Ann Arbor, but rather looking to set up a distribution network for the entire state.

Hohnke said he’d support the amendment, noting that if the number does not meet the need, the number could be increased.

Outcome: The council approved an amendment that set the number of medical marijuana licenses as the lesser of: (1) the number of applications in the first year plus 10%, and (2) 20 dispensary licenses and 10 cultivation facility licenses. Voting against the amendment were Rapundalo and Higgins.

Medical Marijuana Licenses: Council Deliberations – Amendment 3 (Licensing Board)

The third amendment considered by the council was to introduce language that set up a licensing board. In its original form, the section establishing the board read:

(7) The City Council will establish a licensing board to consist of three members of Council, one physician, one medical marijuana caregiver; these are Mayoral appointments. The Board will annually review the licensing criteria, establish the license fee structure, and recommend approval of license applications. Any changes to the number or requirements for licensing will derive from recommendations from this committee and be made to City Council for their approval.

Tony Derezinski (Ward 2) noted that the word “committee” in the last sentence should be replaced by “board” for the sake of consistency. Christopher Taylor (Ward 3) continued deliberations by suggesting the deletion of the last sentence entirely, with its main content – the review of the number of licenses – to be included in the enumeration of the annual activities of the board. The modification was accepted as a friendly amendment to the amendment.

Marcia Higgins (Ward 4) expressed concern about the weighting of the board with councilmembers and suggested a reduction from three to one councilmember. The modification was accepted as friendly to the amendment.

Mayor John Hieftje drew out the fact that staff support for the board would translate into a cost and that this could be funded with licensing fees.

Stephen Rapundalo (Ward 2) drew an analogy to the liquor license review committee – a body he chairs. He described how a great deal of energy had gone into overhauling the city’s process in order to be able to address a “few bad apples,” and went on to say that this had incurred considerable staff time from the fire and police departments. He said that initially, it had cost more because overtime expenses by staff were being incurred, so the committee modified its meeting times to avoid that. He indicated that the medical marijuana board would also need some way to set up its own processes.

Alluding to the possibility that businesses have to sell a liquor license to another business, Sabra Briere (Ward 1) noted that the language included in the limit on the number of licenses stipulated that any license that’s terminated would be returned to the city for re-issuance.

Derezinski indicated that he agreed with Rapundalo in recognizing the need of the board to determine its own procedures and to engage staff resources in the fire and police departments.

Outcome: The council unanimously approved the amendment setting up a licensing board.

Medical Marijuana Licenses: Council Deliberations – Amendment 4 (Misdemeanor)

The fourth amendment considered by the council was to remove reference to “misdemeanor involving a controlled substance” in two places:

6:415. License Required, Number of Licenses Available, Eligibility.
…
(2) A cultivation facility, dispensary, or home occupation shall not be eligible for a license if any person required under this chapter to be named on the application has been convicted of a misdemeanor involving any controlled substance or any felony under Michigan law, or the law of any other state or the United States.

6:417. Application for and Issuance of New Annual License or Renewal of Existing License for Medical Marijuana Dispensaries and Medical Marijuana Cultivation Facilities.
…
(2) An application for a new annual license or the renewal of an existing license for a cultivation facility or dispensary, shall be submitted to the City Clerk on a form provided by the City, which shall fulfill all of the requirements indicated on the form, including but not limited to:
…
(g) A signed release on a form included with the application form permitting the Ann Arbor Police Department to perform a criminal background check to ascertain whether any person named on the application has been convicted of a misdemeanor involving any controlled substance or any felony under Michigan law, or the law of any other state or the United States.

Stephen Rapundalo (Ward 2) asked what the rationale was for the insertion of the language. City attorney Stephen Postema indicated that it related to the ability of someone to comply with laws and that a person’s track record was one way to approach that.

Mayor John Hieftje said that when people commit crimes and then pay their debt to society, they sometimes have that held against them for the rest of their lives. He suggested a further modification that would exclude felony convictions as well, with some kind of timeframe like 10 years in the past.

Sabra Briere (Ward 1) – alluding to the provisional quarters for that night’s council meeting, in the county board of commissioners chambers – said she’d sat in the same room when the county board had struggled with the issue and she would consider Hieftje’s suggestion a friendly amendment. [See Chronicle coverage: "No More Felony Box on County Job Forms"]

Responding to a query from Christopher Taylor (Ward 3), Postema indicated that the state Michigan Medical Marijuana Act had language referencing felonies, which assistant city attorney Kristen Larcom confirmed. Hieftje then withdrew his amendment to the amendment. However, Carsten Hohnke (Ward 5) pointed out that the state law had to do with patient and caregiver registration cards, not the ability to operate a business. Postema indicated he could get back to the council on the issue.

Outcome: The council unanimously approved the amendment striking reference to misdemeanor infractions, leaving the question of felonies for analysis by the city attorney.

Medical Marijuana Licenses: Council Deliberations – Amendment 5 (Signage)

The licensing scheme proposed by the city attorney’s office included a requirement that licensed businesses post signs inside the business with the following language:

THE MICHIGAN MEDICAL MARIHUANA ACT ACKNOWLEDGES THAT “FEDERAL LAW CURRENTLY PROHIBITS ANY USE OF MARIHUANA EXCEPT UNDER VERY LIMITED CIRCUMSTANCES.” SEE, MCL 333.26422(c). IF YOU HAVE ANY QUESTIONS OR CONCERNS PLEASE CONSULT WITH YOUR ATTORNEY.

In introducing the amendment, Sandi Smith (Ward 1) noted that the revision simply reflected the full context of the Michigan Medical Marijuana Act [portion that's excised out of context in the city attorney's draft is in bold]:

ALTHOUGH FEDERAL LAW CURRENTLY PROHIBITS ANY USE OF MARIHUANA EXCEPT UNDER VERY LIMITED CIRCUMSTANCES, STATES ARE NOT REQUIRED TO ENFORCE FEDERAL LAW OR PROSECUTE PEOPLE FOR ENGAGING IN ACTIVITIES PROHIBITED BY FEDERAL LAW. THE LAWS OF ALASKA, CALIFORNIA, COLORADO, HAWAII, MAINE, MONTANA, NEVADA, NEW MEXICO, OREGON, VERMONT, RHODE ISLAND, AND WASHINGTON DO NOT PENALIZE THE MEDICAL USE AND CULTIVATION OF MARIHUANA. MICHIGAN JOINS IN THIS EFFORT FOR THE HEALTH AND WELFARE OF ITS CITIZENS. SEE, MCL 333.26422(c). IF YOU HAVE ANY QUESTIONS OR CONCERNS PLEASE CONSULT WITH YOUR ATTORNEY.

Outcome: The council unanimously approved the revision to the language on the sign.

Medical Marijuana Licenses: Council Deliberations – Amendment 6 (May vs. Shall)

The sixth amendment considered by the council replaced “may” with “shall” in one section:

(3) Approval of Application. The city administrator or designee may shall issue a license for a cultivation facility or dispensary if inspections for safety and zoning compliance, criminal history background checks of all persons named on the application, …

The distinction between “may” and “shall” marks a distinction between what is permissive and what is mandatory. So Stephen Kunselman (Ward 3) expressed concern that the obligation to issue a license might conflict with the upper limit on the number of licenses available. Marcia Higgins (Ward 4) also expressed concern about the change from “may” to “shall.”

Sandi Smith (Ward 1) pointed out that there’s a distinction between “approval” of the license and “issuance” of the license – the latter being a clerical act.

Outcome: The change from “may” to “shall” was approved, with dissent from Higgins.

Medical Marijuana Licenses: Council Deliberations – Amendment 7 (Package Labels)

The amendment was to remove a requirement that a patient’s name and the prices of the product be affixed to the label of packages:

(4) All marijuana delivered to a patient shall be packaged and labeled as provided in this chapter. The label shall include:
(a) the name of the person to whom it is being delivered
(b) the name of the business delivering the marijuana
(c) that the package contains marijuana
(d) the date of delivery, weight, type of marijuana and dollar amount or other consideration of being exchanged in the transaction; and,
(e) the warning that THIS PRODUCT IS MANUFACTURED WITHOUT ANY REGULATORY OVERSIGHT FOR HEALTH, SAFETY OR EFFICACY. THERE MAY BE HEALTH RISKS ASSOCIATED WITH THE INGESTION OR USE OF THIS PRODUCT.

Stephen Rapundalo (Ward 2) asked what the rationale was behind the insertion of the language. City attorney Stephen Postema indicated that it was a requirement that would allow dispensaries to keep track of their product. He ventured that it was hard to say whether it was intrusive or not.

Rapundalo said that this is the way that pharmaceuticals are handled – it’s an issue of the product’s pedigree, he said. He didn’t see a problem with the patient name on the label, but was less definitive about having the dollar amount included.

Sabra Briere (Ward 1) indicated that she wouldn’t have objected to the original language if it had required a dispensary to maintain a ledger – it’s the idea that the information must go on the packaging that she objected to.

Marcia Higgins (Ward 4) noted that if people other than the patient – a caregiver, for example –  can pick up a package for a patient, then the patient needs to be able to know that they are getting the package intended for them and that it actually cost what was paid. Sandi Smith (Ward 1) suggested splitting the issues of the name and the dollar amount into separate amendments. However, Rapundalo suggested that the amendment be withdrawn pending further input from the city attorney.

Outcome: The amendment on package labeling was withdrawn.

Medical Marijuana Licenses: Council Deliberations – Main Motion

Amid the many amendments that had been undertaken and in light of some remaining issues, the council was reluctant to vote the proposal through on its first reading. In addition to the packaging and felony record issues, Christopher Taylor (Ward 3) indicated that he wanted to make sure that a caregiver growing 72 plants was not counted as a cultivation facility.

The council elected to postpone the issue until its second meeting of the month, on Jan. 18, which pushes the second reading of the licensing as well as the second reading of the zoning regulations to February.

Outcome: The city council voted unanimously to postpone its first-reading consideration of the medical marijuana licensing proposal.

Area, Height and Placement (AHP)

The council had already given initial approval of the area, height and placement (AHP) revisions at its Sept. 7, 2010 meeting. The changes are intended to allow more compact use of land, preserve natural systems, accommodate new growth along transit corridors, and locate buildings to promote non-motorized access. [Previous Chronicle coverage of the city planning commission's deliberations on AHP changes: "AHP Zoning Revisions Go to City Council"]

A series of postponements since the early September 2010 council meeting led ultimately to amendments approved at the council’s Dec. 6, 2010 meeting. The amendments ensure that districts providing for employment uses – Office (O), Research (RE), Office/Research/Limited Industrial (ORL) – are not subject to a cap on building height, except in areas directly abutting residential areas.

Although city planner Jeff Kahan and head of city planning Wendy Rampson were on hand to answer questions, the council, having discussed the proposal at previous meetings, approved the measure without deliberation.

Outcome: The city council unanimously gave final approval to the AHP revisions.

Traffic Codes

At Monday’s meeting the council considered final approval to a revision of the city’s traffic ordinances. The revision adopts the Michigan Vehicle Code and the Uniform Traffic Code as part of the city’s own code. The council had given initial approval of the ordinance change at its Dec. 6, 2010 meeting, and had undertaken an amendment at its Dec. 20, 2010 meeting clarifying that the adoption of the MVC and the UTC was being made only to the extent that the codes did not conflict with city ordinances and codes.

The adoption of the two codes is motivated by a desire to make sure that the city’s speed limits are legally defensible.

Traffic Code: Public Commentary

Speaking during the public hearing on the ordinance, James Walker encouraged the council to adopt the ordinance change. He expressed concern that some people appeared not to believe that the state rules are designed to produce the smoothest and safest traffic flow. He cautioned that artificially low speed limits decrease safety. He objected to a media quote from Bob West, in the city attorney’s office, that the speed limit on a section of Newport Road could be increase from 25 mph to 30 mph – Walker characterized that increase as a token gesture. Walker also expressed concern about the use of other studies to justify lower speed limits.

Traffic Code: Council Deliberations

Tony Derezinski (Ward 2) proposed amendments to the ordinance to change the effective date from Jan. 1, which was already three days in the past, to Jan. 13. The amendments were approved with no deliberation.

Outcome: The city council unanimously approved the adoption of the Michigan Vehicle Code and the Uniform Traffic Code.

New Fire Fees

Before the council was approval of a new fee schedule for fire suppression plan review and inspection of alarms and sprinklers.

According to the city, the new schedule is a result of moving the responsibility for the plan review and inspections from the fire department to the city’s construction services, in order to achieve compliance with the Stille-DeRossett-Hale Single State Construction Code Act, 1972 (PA 230).

Sandi Smith (Ward 1) wanted to know if the new schedule was more complex that the old one. She received the clarification that in some places it was, but the fee schedule is for the initial inspection only.

Outcome: The city council unanimously approved the new fee schedule for fire inspections.

Footing Drains

On the council agenda was an item to approve a $1,384,350 amendment to the city’s contract with CDM Michigan Inc. for work on the city’s footing drain disconnection (FDD) program. The FDD program was put in place in the early 2000s as a strategy for mitigating against sanitary sewer backups in some residents’ basements during heavy rains. Part of the load on the sanitary sewer system is due to storm water from footing drains that is led into the sanitary system. The aim of the FDD program is to disconnect these footing drains from the sanitary system, because the water does not need treatment and adds needlessly to the volume of water in the sanitary system.

To help fund the FDD program, the city requires that builders of projects adding to the sanitary sewage volume balance out that additional volume by removing the equivalent of 1.2 times their additional volume from elsewhere in the system – through footing drain disconnects.

Recent renovations to the University of Michigan football stadium added to the load on the sanitary sewage system. So the university paid the city for the equivalent of 140 disconnections at $10,040 per disconnection, for a total of $1,405,600. The city is using $1,275,080 of that sum for the current contract amendment and appropriating $109,270 from its capital budget. The balance of the UM money – the equivalent of 13 disconnections – can be used at the city council’s discretion.

Some of the work to be funded by this amendment will be undertaken along Iroquois Place, where several homes had sewage backups during the June 6, 2010 heavy rains.

Outcome: The city council unanimously approved the footing drain funding allocation without deliberation.

Weapons Screening

Before the council was approval of a $187,000 contract with Washtenaw County for weapons screening services for the 15th District Court. When the court relocates to the new city municipal center from the Washtenaw County Courthouse – where the city has previously leased space – it will not be able to take advantage of the weapons screening services provided there. The scheduled date of relocation is Jan. 14.

The amount of the annual contract is based on a $25.25 per hour cost for officers from the Washtenaw County sheriff’s office. Funds for the contract have been budgeted for FY 2011 and will also be included in the court’s FY 2012 budget.

Sabra Briere (Ward 1) emphasized that this was a cost that was appropriately not included in the cost of constructing the municipal center – it related to operations.

Outcome: The city council unanimously approved the weapons screening contract.

Housing Commission Appointment

The council voted on approval of the nomination of Leigh Greden to the Ann Arbor Housing Commission, which had been put before the council by mayor John Hieftje at the council’s previous meeting. Greden replaces Jayne Miller, who previously served as the city’s community services area administrator, before leaving that post in February 2010 to take a position leading the Huron-Clinton Metroparks. Miller had been appointed to the housing commission after leaving her job at the city, in connection with the wholesale replacement of the entire housing commission board in March 2010. Miller’s tenure with the Metroparks was brief, and she subsequently took a job in Minnesota as superintendent of the Minneapolis park system, which began in November 2010, making it impossible for her to continue to serve on the city’s housing commission.

Greden previously served on the city council, representing Ward 3, until he was voted out of office in the 2009 Democratic primary, due in part to voter dissatisfaction with his use of electronic mail during council meetings – for communications that ranged from sophomoric humor to possible violations of the Open Meetings Act and campaign finance laws. After leaving the city council, Greden left his job as an attorney with Miller Canfield to take a position with Eastern Michigan University as that institution’s head of government relations.

Tony Derezinski (Ward 2) said he wanted to applaud Greden’s appointment, saying that it was Greden who had encouraged Derezinski to serve as the city council liaison to the housing commission. Greden, he said, had an abiding interest in housing issues.

Outcome: The city council unanimously approved Greden’s appointment.

Communications and Comment

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

Comm/Comm: Fuller Road Station

Sabra Briere (Ward 1) expressed regret that the scheduled work session on the Fuller Road Station late last year had been postponed and hoped that it would be rescheduled soon. She said she’d had conversations about the station with Sandi Smith (Ward 1) and the mayor. City administrator Roger Fraser indicated that there would be a work session on the subject on Monday, Jan. 10.

Comm/Comm: DDA-City

Christopher Taylor (Ward 3) reported that the two mutually beneficial committees from the city and the Ann Arbor Downtown Development Authority – which are currently discussing the parking contract between the city and the DDA, as well as a plan for the DDA to lead development of city-owned downtown surface parking lots – had met on Dec. 27. Taylor reported that the DDA board will be considering a resolution supporting the council’s planned resolution that would set forth a parcel-by-parcel plan for surface-parking-lot development.

Comm/Comm: Mercury

During his communications time, city administrator Roger Fraser reported a recent hazardous materials incident on Dec. 30, 2010, which involved a mercury spill in a resident’s home. The source of the spill was the weight in an old grandfather’s clock. The fire department and the U.S. Environmental Protection Agency were called and followed the national guidelines for any cases where more than two tablespoons of mercury – about a pound – are spilled. Fraser reminded everyone that cleanup of mercury should be left to professionals.

Comm/Comm: Palestine

During public commentary reserved time, Henry Herskovitz spoke on the issue of Palestine. He noted that the printed agenda contained an error – he was recorded as speaking on the issue of medical marijuana. He reminded the council that he’d spoken to them in June 2009 about a peace activist who’d been killed by a tear gas canister in the city of Bi’lin in Palestine – Bassem Abu Rahmah. He held up a photo of himself with Abu Rahmah. The man’s sister, Jawaher Abu Rahmah, Herskovitz reported, had been heavily tear gassed and had died on New Year’s Day. The identity of the person who had killed her, he said, had not been released. He characterized the actions of Israeli military forces as that of “gangsters.” Even when it’s a U.S. citizen who is killed, he said – as was the case when Rachel Corrie of Olympia, Washington was killed by a bulldozer – there is little reaction. He wondered what the reaction would be if North Korea killed a U.S. citizen. The demonstration outside the Beth Israel congregation for the coming Saturday, Herskovitz said, would be an occasion to remember Jawaher.

Present: Stephen Rapundalo, Margie Teall, Sabra Briere, Sandi Smith, Tony Derezinski, Stephen Kunselman, Marcia Higgins, John Hieftje, Christopher Taylor, Carsten Hohnke

Absent: Mike Anglin

Next council meeting: Due to the Jan. 17 Martin Luther King Jr. holiday, the meeting will be held on Tuesday, Jan. 18, 2010 at 7 p.m. in Washtenaw County administration building 220 N. Main St. [confirm date]

Before the meeting started, Scott Rosencrans, right, knocks on wood in conversation with Stephen Rapundalo (Ward 2). Behind them are Sandi Smith (Ward 1) and Nicholas Nightwine, president of the city's AFSCME union Local 369. Nightwine was there to oppose the outsourcing of city composting operations. Rosencrans, former chair of the park advisory commission, attended as part of a presentation made by the Ann Arbor Skatepark. (Photos by the writer.)

Council rules factored prominently later in the meeting, when a motion to suspend them failed. Had the rules been suspended, it would have cleared the way for the council to reconsider their previous decision to reject a residential planned unit development (PUD) on Fifth Avenue – Heritage Row. The project, which began as a conditional rezoning proposal three years ago, went through iterations since 2007 that included a brownstone-style PUD and a matter-of-right proposal called City Place, which eventually did win approval from the council.

After their previous council meeting, which featured water as a prominent theme, the council focused much of its attention on land-related issues like Heritage Row. In another land-use related item, the council approved revisions to the city’s area, height and placement (AHP) zoning provisions in the city code. But amendments to the AHP resolution were substantive enough that the approval process was reset to the initial, first-reading step. The AHP changes – which, as amended, provide that height limits do not apply in so-called “employment districts,” unless they abut residential areas – will need approval at a second reading in order to be enacted.

A land-use item that was intended mostly as administrative housekeeping – several park areas previously designated as residential, office, and business districts were rezoned with the public land (PL) designation – generated substantial public commentary and council deliberations. Several public commenters expressed concern about whether the PL designations, which the council approved, afforded adequate protection for the continued use of the land as parks.

Although not strictly a land-use issue in a zoning sense, a proposed contract with WeCare Organics to operate the city’s compost facility was linked to terra firma by acreage owned by the city where the facility is located, plus the fact that it processes yard waste generated from residents’ property. The council approved the WeCare contract after extended questioning of city staff and a representative from WeCare.

Also tangentially related to land use was an item that introduced a licensing scheme for medical marijuana dispensaries and cultivation facilities in the city. After questioning the city attorney about several provisions of his proposed licensing requirements, councilmembers decided to postpone the issue until their Jan. 3, 2011 meeting. The new zoning regulations regarding where medical marijuana dispensaries and cultivation facilities can be located, which were scheduled to be heard at second reading on Dec. 20, were rescheduled for Jan. 18.

A land travel-related agenda item the adoption of the Michigan Vehicle Code (MVC) as part of the city’s traffic ordinances. Two years ago, the city had adopted the MVC but excluded portions of that state law relating to the setting of speed limits. The adoption of the full MVC came in response to a possible class-action lawsuit against the city.

As heavily land-centric as the agenda was, Ann Arbor city council also dealt with $9 million worth of water issues. It approved petitions of the Washtenaw County Water Resources Commissioner (WCWRC) office for five different projects in drainage districts that lie at least partly inside the city of Ann Arbor. The total cost of all the projects, including the non-city share, is a bit over $9 million. They qualify for low-interest state-revolving fund loans, up to 50% of which may be forgiven by the state. The payments on the loans will come from the city’s stormwater fund.

New Council Rules

The council formally adopted its rules for the coming year, without commentary. The rules included two revisions, which can be traced to the filing of a lawsuit by the Great Lakes Environmental Law Center in 2009. The lawsuit included allegations that the city council violated the Open Meetings Act by engaging in deliberative email communications with each other out of public view, but during their public meetings.

The council had previously enacted a rule that limits their use of email during their meetings and provides that any emails that are sent or received during a meeting by councilmembers are routinely attached to the meeting’s minutes. But the lawsuit settlement, which left open the question of whether the city council violated the Michigan Open Meetings Act, required the city council to consider formally the enactment of an additional rule stipulating that they only use their government accounts for city council business. That consideration took place at the council’s April 19, 2010 meeting in the form of a resolution remanding the issue to the council’s rules committee. [Coverage and analysis of that meeting: "Ann Arbor City Council Also Remands Email Rule to Committee"]

The rules committee is – by council rule – required to report back to the council at its next meeting. However, the rules committee did not mention its work on the email rule until Oct. 19, 2010. From The Chronicle’s coverage of that meeting:

Comm/Comm: Email Rule

Sabra Briere (Ward 1) reported out from the council rules committee that in November they would likely have a recommendation for a change to email rules. By way of background, as part of a lawsuit settlement, the council agreed to formally consider a rule on use of non-government email accounts. The council satisfied the requirement of the settlement in the spring by remanding the question to its rules committee, which – by council rule – should have reported back to the council at the council’s subsequent regular meeting.

The two revisions to the council rules adopted at Monday’s meeting were as follows [added material in italics and deleted material in strike-through]:

RULE 15 – Committees and Officers Must Report

All committees and officers shall make immediate report on matters referred to them at the first stated meeting after such references unless further time shall be given them by the Council or unless requested to report to the working committee.

All committees and officers shall make immediate report on matters referred to them at the first stated meeting of Council after such referrals are first addressed by the committee or the officer unless another time shall be given them by the Council or unless requested to report to the work committee. In any event, a status report should be given to the Council by a committee after each meeting of the committee at which the referred matter is discussed.

…

RULE 18 – Council Email

Councilmembers shall use the City electronic mail system for their electronic mail communications for City business.

Outcome: The city council voted unanimously to adopt its new council rules.

Heritage Row

The  council was set to take a sequence of three votes on the Heritage Row PUD (planned unit development) project, which would have concluded with the scheduling of a reconsideration of the proposal as a first-reading agenda item on Dec. 20. [.pdf of the set of parliamentary motions]

The residential project, located on the east side of South Fifth Avenue, would renovate seven houses and construct three new 3.5-story apartment buildings behind those houses, with an underground parking garage. The city council has already reconsidered the project once before – at its July 6, 2010 meeting. That reconsideration came after the council had initially rejected it on June 21 with a 7-4 vote in favor. The project needs an 8-vote super-majority due to a successful petition filed by adjoining property owners. At the July 6 meeting, the project was nearly reconsidered yet another time at the same meeting, as Carsten Hohnke (Ward 5) appeared ready to change his vote – but he withdrew his motion to suspend the rules, and no additional reconsideration occurred.

On Monday, the proposal that was intended to be reconsidered by the items sponsors –  Sandi Smith (Ward 1) and Tony Derezinski (Ward 2) – included the following revisions: (1) the top floor of the new south building would be removed from the design; (2) the density would be reduced from 79 units to 76 units and the number of bedrooms would be reduced from 154 to 147; (3) the project would include five affordable units at the 50% AMI (average median income) level, in addition to six affordable units at the 80% AMI level; and (4) the three new buildings would be LEED certified [.pdf of current proposal] [Previous Chronicle coverage: "Heritage Row Redux: Again"]

The first in the sequence of three votes was a motion to suspend the council rules:

RESOLVED, That the following requirements of Council Rule 12 be suspended for the sole purpose of allowing Councilmember Derezinski to request City Council reconsideration of the Heritage Row PUD Zoning and the PUD Site Plan and Development Agreement:

• The requirement that the motion for reconsideration be made by a member voting with the prevailing side
• The requirement that the motion be made at the same or the next regular meeting of Council
• The requirement that a motion only be reconsidered once

When the council came to the item on its agenda, Derezinski began to introduce the substance behind the motion. But Carsten Hohnke (Ward 5) objected, noting that a motion to suspend the council rules is, from a parliamentary point of view, not debatable. That observation was confirmed by city attorney Stephen Postema. Derezinski ventured that explaining what the motion would do did not amount to debating it. Postema stated that the motion was self-explanatory.

[Editor's note: The agenda item was labeled a "motion" but in every other respect resembled a "resolution," including written text with "whereas" and "resolved" clauses. We leave to parliamentarians the question of whether the issue could have properly been debated as a resolution.]

Without the benefit of any debate, the council voted.

Outcome: The 2/3 majority of members present that was needed to suspend the council rules was not achieved – the vote was 6-5 in favor of suspension. All four councilmembers who had previously voted against Heritage Row voted against suspending the council rules: Mike Anglin (Ward 5), Carsten Hohnke (Ward 5), Sabra Briere (Ward 1), and Stephen Kunselman (Ward 3). They were joined by Marcia Higgins (Ward 4).

On July 6, when the council had successfully suspended the rules, the 2/3 majority had been achieved with Higgins’ vote, which made seven. That was enough for the 2/3 majority – out of 10 present – because Mike Anglin (Ward 5) had been absent on that occasion.

Christopher Taylor and Stephen Kunselman, Ward 3 council colleagues, share a smile.

At Monday’s meeting, Kunselman had left the table and was outside council chambers when the rollcall vote was called. Briere, possibly alert to the possibility that his absence could have resulted in a 7-3 outcome – enough to get the rules suspended – asked for a brief delay, which lasted only a few seconds until Kunselman returned to his seat. Christopher Taylor, Kunselman’s Ward 3 colleague, congratulated him on his timing.

The developer of the project, Alex de Parry, and his wife Betsy de Parry were in council chambers for the vote, having returned to Ann Arbor from Denver earlier in the day. In a phone interview with The Chronicle on Tuesday, de Parry said that he landed in Ann Arbor to find a voicemail on his phone from Sandi Smith indicating that the one vote she’d counted on changing to give his project approval would not be forthcoming.

De Parry said that through August, he’d worked with Briere and Derezinski to revise the project in a way that would gain enough support to win council approval. [Additional insight from Chronicle coverage of a September city council caucus: "Council Chess Talk: Building City Place"] De Parry indicated that as they were working on LEED certification requirements, Briere had decided not to continue in the discussions, and her Ward 1 colleague, Sandi Smith, had taken up the issue. [The project itself is in Ward 5.]

In a phone interview Tuesday afternoon, after the Monday council meeting, The Chronicle asked Smith why she and Derezinski went to the trouble to bring the item forward to the agenda, if they were not certain there were sufficient votes. Smith indicated that she had confirmation from a councilmember who’d previously voted no, that they would support the project in the way it had been revised.

As far as what happens next with the Fifth Avenue properties, de Parry was not certain – he’d been working on the assumption that Heritage Row was on a path to approval. [Among his options are: (1) to start from scratch with the city's site plan approval process for the revised version of Heritage Row; (2) build the matter-of-right City Place project that already has approval; or (3) sell City Place to another developer.]

Area, Height, and Placement

At Monday’s meeting, the council considered a set of changes in the city’s zoning code for areas outside the downtown, across most of the city’s zoning classifications, for regulations affecting area, height and placement (AHP).

The council had already given initial approval of the AHP revisions at its Sept. 7, 2010 meeting. The changes are intended to allow more compact use of land, preserve natural systems, accommodate new growth along transit corridors, and locate buildings to promote non-motorized access. [Previous Chronicle coverage of the city planning commission’s deliberations on AHP changes: “AHP Zoning Revisions Go to City Council”]

The measure was set to be voted on for final, second-reading approval the council’s Oct. 4 meeting, but was postponed at the request of Marcia Higgins (Ward 4). At the council’s Oct. 18 meeting, Higgins brought forth amendments that removed some of the height restrictions that were part of the revision to the code. After some deliberation on the merits of the amendments, Higgins withdrew them and the council again elected to postpone the measure. At its Nov. 15 meeting, the council again put off a vote on the proposal.

At Monday’s meeting, Higgins again brought forward her set of amendments, to ensure that zoning districts that provide for employment uses – Office (O), Research (RE), Office/Research/Limited Industrial (ORL) – are not subject to a cap on building height, except in areas directly abutting residential areas.

The amendments proposed by Higgins, which the council approved, changed the ordinance revision in a substantial enough way that the council’s eventual approval of the AHP proposal on Monday counted only as a first-reading, initial approval.

AHP: Council Deliberations

Higgins led off deliberations by thanking her council colleagues for their patience. She proposed her amendments, which removed the height caps in areas that are considered to have potential for high employment – Office (O), Research (RE), Office/Research/Limited Industrial (ORL). She had originally included M1 (Limited Industrial) districts as well, but told her colleagues that she’d taken them off the table.

Hearing that M1 was no longer part of the set of Higgins’ amendments, Sandi Smith (Ward 4) (Ward 1) was prepared to support the amendments without modification. She’d had concerns about property near the railroad and the Huron River, zoned M1, that would have had no height cap.

Outcome on Higgins’ amendment: The council unanimously approved Higgins’ amendments to the AHP revisions.

Smith then proposed an amendment of her own, to remove the minimum square footage and width requirement for residential, single-family dwelling districts. Smith’s proposed deletion is indicated by strike-through:

(2) Permitted principal uses.

(a) Single-family dwelling firmly attached to a permanent foundation, connected to a public sewer and water supply, at least 14 feet wide and contain at least 900 square feet of floor area. Single-family dwellings in the R1E district shall not exceed 2,000 square feet of floor area.

Stephen Kunselman (Ward 3) inquired what the rationale was for the minimum width and floor area. Upon confirmation from Wendy Rampson, head of planning for the city, that it was to prevent placement of mobile homes in these districts, said that he would not be supporting the amendment.

Mayor John Hieftje elicited from Rampson the fact that attachment to a permanent foundation would also mitigate against mobile homes. Sabra Briere (Ward 1), Mike Anglin (Ward 5) and Kunselman batted the amendment around, in the course of which various facts about mobile homes emerged: a single-wide trailer typically measures 12-14 feet wide, while a double-wide measures 25-30 feet.

Smith noted that the difficulty in trying to prevent the use of manufactured housing is that it’s a building method more-so than a type of housing.

Outcome on Smith’s amendment: The council approved Smith’s amendment, with dissent from Stephen Rapundalo (Ward 2), Christopher Taylor (Ward 3), Stephen Kunsleman (Ward 3) and Mike Anglin (Ward 5).

Before the vote on the whole set of revisions as amended, Higgins expressed her thanks to the planning staff, and Carsten Hohnke (Ward 5) added a layer of thanks.

Outcome: The AHP revisions were unanimously approved by the council, but the amendments were substantial enough that the approval was considered to be only the initial, first-reading approval. An additional approval will be necessary to enact the revisions.

Rezoning of Parks to Public Land

Before the council was a resolution to rezone several park properties (Arbor Oaks Park, Berkshire Creek Nature Area, Bluffs Nature Area, Glacier Highlands Park, Mallets Creek Nature Area, Scheffler Park) from various zoning classifications – AG (Agriculture District), R1B and R1C (Single-Family Dwelling Districts), R4A and R4B (Multiple-Family Dwelling Districts), O (Office District), C1 (Local Business District) – to PL (Public Land District). The resolution is part of an ongoing comprehensive effort by planning staff to identify land used as parks and to assign it the zoning classification that the city deems appropriate to parks.

Parks to Public Land: Public Hearing

Thomas Partridge addressed the council on the rezoning, making a point that he’s made in connection to many similar rezoning proposals – that it does not go far enough because there is no stipulation that areas be set aside for use as affordable housing.

Several other speakers – Ethel Potts, Kathy Boris, Rita Mitchell and Dorothy Nordness – expressed their concern that the PL designation does not afford adequate protection for the park areas. [.pdf of full text of Mitchell's commentary]

That concern stems from the fact that other land – along Fuller Road, which is also designated as PL – is now planned for use as a parking garage and eventually a rail transit center: Fuller Road Station. [A council work session on Fuller Road Station, originally scheduled for Dec. 13, 2010, has been canceled. The cancellation was announced at Monday's meeting by city administrator, Roger Fraser.]

The land where Fuller Road Station is planned is currently used as a surface parking lot. At its July 6, 2010 meeting, the council had approved a change in the definition of the PL designation to include “transportation facilities” as a possible use, to make clear that the Fuller Road Station fell within the possible uses for PL. Before the council enacted that change, based on a recommendation from the city planning commission, the possible uses included municipal airports, among other things.

In that context, Boris, during her time at the podium, asked the council what assurance the public had that the land being rezoned to PL that night would not be repurposed as a transportation facility. Potts challenged the council to provide assurance that park land can be protected for continued use as parks. Mitchell pointed specifically to the part of the zoning code that provides: “No structure shall be erected or maintained upon dedicated park land which is not customarily incidental to the principal use of the land.” [The city's analysis of the Fuller Road property is that it is not technically "dedicated park land."]

Parks to Public Land: Council Deliberations

Marcia Higgins (Ward 4) inquired why the Arbor Hills Nature Area – which had appeared on an original list of park areas recommended by planning staff to be rezoned as PL – was not included in the recommendation. The conclusion of that discussion with Wendy Rampson, head of planning for the city, included the fact that the land is currently zoned as a planned unit development (PUD) in connection with a condominium development, with includes various utilities.

Outcome: The rezoning of the parks properties was unanimously approved by the council.

Compost Facility

Before the council was a resolution to approve a five-year contract with WeCare Organics for the operation of the city’s composting operations. The arrangement would result in the payment of tipping fees by the city to WeCare in an amount not to exceed $200,000 a year, and the transfer of current city union workers at the facility to other open positions at the city. The move is estimated to save the city’s solid waste fund about $65,000 in the current fiscal year and more than $375,000 a year starting in FY 2012, which begins July 1, 2011. The resolution had been postponed from the council’s Nov. 15 meeting, when it received considerable discussion by the council and commentary from the public.

The proposal to transform the city’s compost center to a merchant operation had previously been discussed with the council during the FY 2011 budget planning process at a March 8, 2010 budget work session. From Chronicle coverage of that session:

Conversion to Merchant Composting Operations

McCormick’s budget impact statement for solid waste also indicates a net gain of $150,000 for the possible transfer of the city’s composting facility to a merchant operation. That gain was due to a one-time capital recovery for the sale of equipment to the successful bidder on the request for proposals (RFP). The city’s RFP for the composting operations indicates that the equipment would include items like front-end loaders, light-duty trucks, and tub grinders.

Tony Derezinski (Ward 2) inquired about any implications for the city’s labor agreement. McCormick told him there were two full-time positions at the city that would be lost – a mechanic and a supervisor – but that the city had held vacancies open for them in other parts of the organization.

Sabra Briere (Ward 1) wondered what would happen if the city contracted with a merchant, then elected to decide against that contractor based on performance and then opt for a different contractor. McCormick indicated that the city had received four strong responses to the RFP.

Stephen Kunselman (Ward 3) was clear about his opposition to the the proposed conversion to merchant operations: “I’m really opposed to this,” he said. At the second round of budget talks he had already expressed skepticism about the idea.

Kunselman’s opposition is based in part on an inherent skepticism about the viability of yard waste compost as a commodity, along the lines of recyclable material. [The city uses a merchant operation for its materials recovery facility.] Because it’s not a commodity that can be reliably sold in large quantities, said Kunselman, the city would essentially be providing the merchant with tax-free land to store compostable material, until it could eventually be moved on the market. He said he did not imagine that they would be able to sell the material in 50-pound bags at Lowes.

Kunselman’s opposition is also based on the idea that there’s a built-in assumption that the merchant operation will accept yard waste from other surrounding communities – even while the city is trying to encourage its own residents to “keep it home” and reduce the amount of yard waste that is hauled from one place to another. [The elimination of the loose leaf collection program is one example.] Conversion to merchant operations, he said, was a way of subsidizing yard waste collection for surrounding suburban communities. Promoting the idea of trucking and hauling yard waste, Kunselman said, is “going in the wrong direction.”

Kunselman also noted that the composting facility was located in the southeast part of the city – his ward – and he did not want to see additional truck traffic on the roads in that part of town.

Compost: Public Commentary

Scheduled to address the council during public commentary was Phyllis Ponvert, who also attended the Sunday night city council caucus the previous evening to express her objections to the proposed contract with WeCare. Ponvert chose not to address the council; however, the sentiments she conveyed in an email to The Chronicle touched on many of the issues expressed by councilmembers and other members of the public. She questioned whether adequate effort had been put into making the city’s compost operation competitive with privately produced compost products, and expressed concern about any possibility that WeCare might contract with other communities to introduce biosolids from sanitary sewer systems into the city of Ann Arbor’s composting facility’s operations. She called for the creation of a taskforce:

City Council must put a hold on the decision to outsource the facility. Hold public hearings and create a task force to come up with a plan to keep the compost facility. Responsible oversight with on site management and creative marketing will enable the compost facility to pay for itself.

Appearing before the council was Jeannine Palms, who described the quality of the city’s compost end product as “black gold.” She asked the council to postpone action on the proposal so that the city staff could review the details of the proposal at a citizen meeting. She appealed to the notions of investment in social capital, shared prosperity and ecological equity.

Again delivering her public commentary in the form of a song – this one to the tune of “You Better Watch Out” – was Libby Hunter. The lyrics included a characterization of the contract with WeCare as a “sweetheart deal.”

Following Hunter at the podium was Nicholas Nightwine, who is president of the AFSCME Local 369. In response to a quip from mayor John Hieftje, Nightwine indicated that he would not be providing music. Nightwine noted that he’d addressed the council on previous occasions on the same topic. He reiterated his point that some of the compost facilities financial losses are due to pricing the end product at below-market rates. He asked the council to consider working to fix some of the operating shortfalls, before outsourcing the compost facility’s operation to a company based in another state. [WeCare Organics is New York-based, whereas another bidder, Spurt Industries, is based in Michigan.] Nightwine rejected the characterization of the proposed arrangement with WeCare as a partnership, saying that it was a “privatization of services.” If it were a partnership, he said, then WeCare would also share in the financial losses – which are expected to continue for the city, but at a much reduced level.

Lou Glorie noted that the composting facility is not a “greenish frill” but rather a state-mandated core service, because the dumping of yard waste in landfills is prohibited by state law. The cost of maintenance for the facility, she said, would continue to be shouldered by the city, which would result in a situation where the profit is privatized, but the cost is socialized.

Compost: Council Deliberations

Stephen Kunselman (Ward 3) led off council deliberations by making a gambit for a postponement in order to facilitate additional public engagement, saying it was no different than the current process underway to determine if the city wanted to contract out for operation of Huron Hills golf course. Sandi Smith (Ward 1) said she also had concerns but felt they could get answers in two weeks, which was shorter than the timeline that Kunselman seemed to have in mind.

Hieftje said he wouldn’t support a postponement at that point in the meeting, given that there was a lot of false information that had been put out. He felt the council meeting was an educational opportunity. If there were questions at the end of the discussion, he said, he might be willing to entertain a postponement.

Sabra Briere (Ward 1) said she was also hoping for some kind of discussion that evening, which would be precluded by a successful vote to postpone, so she asked Kunselman to withdraw the motion to postpone, which he did.

Mike Anglin (Ward 5) echoed concerns expressed during public commentary that the city had not made an adequate effort to make the compost facility profitable. He noted that several acres had been purchased to create the facility and the challenge is how to make the facility a benefit to our community. He expressed concern that the state law could change and allow for inclusion of biosolids. He called for the inclusion of the University of Michigan School of Natural Resources and Environment as a part of the effort.

Smith ticked through a number of questions for the city’s solid waste coordinator, Tom McMurtrie. She wanted some clarification about the setting of prices – in the context of the possibility that prices for the end product were set too low by the city for the compost facility to have been profitable. McMurtrie allowed that pricing was not in the core competency of the city.

McMurtrie outlined how circumstance this past spring had led to the setting of very low prices in order to try to liquidate some of the inventory of compost that had accumulated on the compost facility site –  state law limits the amount of compost that can be stored on property, and it also has a shelf life. Those same circumstances led to a lack of availability of compost for local residents, who were accustomed to being able to purchase a finished compost product from the city.

An explanation from McMurtrie for the shortage of compost available to city residents was conveyed to The Chronicle last spring. McMurtrie’s explanation described how it was not a policy decision, but rather an operational error that resulted in the shortage:

… For these reasons, and the fact that finished compost loses its nutrient value over time, we were interested in selling this substantial backlog of materials.

In an effort to gauge the wholesale market for this material, the city issued an invitation to bid in 2009 requesting pricing for 1,000 cubic yards or more. This bid was sent to approximately 100 landscape suppliers in the area. Two bids were received: One at 50 cents per cubic yard, and the other at $2.75 per cubic yard, for 1,000 cubic yards. The City decided to reject the 50 cents per cubic yard bid, and price the bulk purchases at $2.75 per cubic yard.

Normally, a small amount of compost would be retained for small quantity sales such as to homeowners. Due to operational error, that small set aside was not retained. Changes in operations are being reviewed to prevent that from happening again.

Later in deliberations, Briere established that the city did not track statistically how much compost local residents used. She pressed McMurtie to account for the city’s estimate that the 1,000 cubic yards that would be set aside for sale to residents under the WeCare contract would be sufficient. McMurtrie said the figure was based on input from staff at the compost facility and at the scale house.

Sue McCormick, public services area administrator, responded to a query from Smith about the business case for adopting the contract with WeCare now, as opposed to waiting a year. McCormick said that everything is about the cost of providing the service – $600,000 for the city to run the operation versus $200,000 to pay WeCare to do it. “I don’t know how to put it more simply,” she concluded. She said it was a possibility for the city to try to bring in increased tonnages of yard waste from surrounding communities and to charge those communities tip fees – essentially playing the same role that WeCare would play under the proposed contract.

However, McCormick pointed out that the city staff had asked the council to do that when Waste Management had expressed interest in establishing a long-term contract with the city to roughly double the tonnages it brought to the city’s compost facility. But the city council had turned down the request. By way of specific background, the vote came on April 3, 2007. From the resolution:

…

Whereas, Waste Management of Michigan, Inc. is interested in initially delivering approximately 10,000 tons/year and ultimately 20,000 tons/year of compost from its Central Wayne Disposal Authority communities, including Wayne, Westland, Inkster, Garden City and Dearborn Heights to the Ann Arbor Compost Center;

Whereas, The City expects to generate approximately $335,000.00 in tipping fee revenue during the first full year of the ten year agreement with Waste Management for the processing and buy-back of finished compost;

Whereas, It is forecast that a net return to fund balance of $1,500,000.00 will be generated by the City during the life of this agreement;

…

RESOLVED, That City Council approves a ten-year agreement with Waste Management of Michigan, Inc. commencing May 1, 2007 and continuing until June 30, 2017 subject to the terms of the contract for the delivery and processing of yard waste at the Ann Arbor Compost Center;

That 2007 vote was 5-4. Voting yes were [councilmembers currently serving on the council are in italics]: Joan Lowenstein, Leigh Greden, Margie Teall, Chris Easthope, and John Hieftje. Voting no were:  Ron Suarez, Stephen Kunselman, Marcia Higgins, Wendy Woods. Stephen Rapundalo and Bob Johnson were absent.

At Monday’s meeting, McCormick said that without the guaranteed throughput of long-term contracts, it was difficult to market the finished product. McMurtrie indicated that when the city subsequently raised its tipping fees, Waste Management had elected to stop bringing any material to the city’s facility.

Kunselman quizzed McMurtie on the terms of the WeCare contract: Could WeCare charge other communities less per ton as a tipping fee than it charges the city of Ann Arbor? Matt Kulhanek, fleet and facility manager with the city, confirmed this is the case. Kunselman said he objected to that on basic principle. Hieftje indicated that he did not see how the city would be damaged by that – Kulhanek concurred.

With respect to the pricing of Ann Arbor’s tipping fee versus what WeCare might charge other communities, Christopher Taylor (Ward 3) wondered if some kind of “most favored nation” status for the city could be explored with WeCare. McMurtrie said that the contract with WeCare is modeled on the one that the city has with FCR to operate the city’s materials recovery center.

Mike Nicholson, senior vice president with WeCare Organics, put the tipping fee charges in the context of the total cost to another community to tip yard waste at the Ann Arbor facility. Compared to the $19/ton that Ann Arbor would be charged under the contract, Nicholson suggested by way of a purely hypothetical example that the city of Detroit could be charged $17/ton, but that their cost for transfer from Detroit to Ann Arbor might well work out to $10/ton, so that their total cost would come to $27/ton – more than what it cost Ann Arbor, which has no transfer costs after collection of the material.

Carsten Hohnke (Ward 5) drew out the fact that the length of a contract WeCare might be able to achieve could also affect the tipping fee – WeCare might offer a lower tipping fee in order to secure a longer-term deal.

Smith asked Kulhanek to explain how the New York-based WeCare was selected over a Michigan company, Spurt Industries, which had submitted a proposal that appeared competitive on cost. Kulhanek clarified that the bidders where evaluated on their technical competency separately from the financial proposal. WeCare not only had more experience, Kulhanek said, but also specific experience working with municipalities. Spurt’s tipping fees, he said, were lower and went up each year of the contract, whereas WeCare’s went down. He also said that Spurt’s estimated additional tonnages they could achieve contracts for – 30-40 tons– may not be realistic.

Smith also established with city staff and with Nicholson that the combination of state law and the contract language with WeCare meant that there is no possibility biosolids would be introduced at the city compost facility.

Hohnke elicited an assurance from McMurtrie that the quality of the end product would continue to be high – it would be tested three times a year. Councilmembers engaged in some discussion of the possibility that some amount  of compost might be made available to Ann Arbor residents at no cost to them for the compost – it would cost something for the city to make that part of the contract.

Kunselman allowed that the deliberations had dispelled much of the misinformation, but noting the late hour – the meeting did not conclude until after 1 a.m. – said that many residents don’t stay up past midnight or get the news. So he made another bid for postponement. Hieftje said he didn’t see a reason to postpone, but also did not see a downside. Smith asked McCormick if a two-week delay would have a negative impact on the city and WeCare’s ability to implement the transition before the spring. After consulting briefly with Nicholson, McCormick indicated that “a two week delay may not kill us,” but did not convey any enthusiasm for delaying.

Outcome on postponement: The motion to postpone failed, with only Briere, Kunselman, Anglin and Smith voting for it.

Outcome on the resolution: The council approved the five-year contract with WeCare, with Kunselman and Anglin dissenting.

Medical Marijuana Licensing

Before the council was a draft of a licensing scheme for medical marijuana dispensaries, cultivation facilities and home occupations that the city attorney’s office had put together. Key elements of the licensing to be considered included: no more than 15 licenses will made available citywide for cultivation facilities and dispensaries; preference for applications will be given to facilities operating before Aug. 5, 2010, when the city council passed a moratorium on use of facilities for dispensing and cultivation; provision of names and addresses of various individuals associated with a facility; installation of security measures; posting of signage advising that use of marijuana is against federal law; consent to inspections of unspecified frequency. [.pdf of original draft licensing ordinance]

The specific direction to undertake the drafting of the licensing scheme came at the council’s Oct. 18 meeting from Tony Derezinski (Ward 2), who serves as the city council’s representative on the planning commission. By council rule, the introduction of ordinances like medical marijuana licensing is stipulated to come from councilmembers, but ordinances can be referred by councilmembers to other entities within the city, like the city attorney’s office:

RULE 13 – Ordinances, How Introduced

Proposed ordinances shall be introduced by one or more individual members of Council. Ordinances may be referred to any or all of the following: the City Attorney, the City Administrator, appropriate agencies, and Council committees, for study and recommendation. Ordinances shall be reported back to the working committee of the Council.

As a member of the planning commission, Derezinski had voted to recommend a zoning ordinance, as well as an unspecified licensing scheme. The zoning ordinance, which came before the city council at its Oct. 18 meeting and was approved then at its first reading, also enjoyed unanimous support on the planning commission. In broad strokes, under the proposed zoning ordinance, medical marijuana dispensaries can only be located in zoning districts classified as D (Downtown), C (Business), or M (Industrial), or in PUD (planned unit development) districts where retail is permitted in the supplemental regulations. Also, medical marijuana cultivation facilities would only be located in C (Business), M (Industrial), RE (Research), or ORL (Office/Research/Limited Industrial) districts.

However, the licensing proposal did not enjoy unanimous support on the planning commission. From The Chronicle’s account of the Oct. 5 planning commission meeting:

There were no additional details in the planning staff report about a possible license. Although it had been mentioned at previous meetings that the city attorney’s office was developing a proposal about licensing medical marijuana businesses, planning commissioners had not previously discussed the topic in depth.

Deliberations were brief. Jean Carlberg asked whether a license would only apply to dispensaries, or if it would be required of cultivation facilities and “home occupation” businesses as well. Kristen Larcom of the city attorney’s office said she didn’t know, because they hadn’t yet drafted a proposal for the license. Kirk Westphal asked if the license might include a cap on the number of dispensaries in the city, or require that there be building security. Larcom said that it might.

Outcome: In a 7-1 vote, the planning commission approved a motion to recommend that city council institute a medical marijuana business license. Eric Mahler dissented, and Wendy Woods was absent from the meeting.

Mahler did not comment during the public meeting on this issue. When asked by The Chronicle following the meeting about his reason for voting against it, Mahler indicated that they didn’t know what the license would entail at this point, and it was difficult to support something without that information.

The planning commission had undertaken their study and recommendation of a zoning ordinance at the direction of the city council as part of the moratorium on medical marijuana dispensaries and cultivation facilities, which it passed on Aug. 5, 2010. However, the resolution establishing the moratorium did not reference a licensing scheme.

Medical Marijuana: Public Comment

Chuck Ream appeared before the council to criticize the draft licensing proposal that the city attorney’s office had produced. He began by complimenting the city’s planning commission for the tremendous work they’d done on the zoning ordinance, but he did not lavish the same praise on the city attorney’s office for its work on the licensing scheme. The inspection of dispensaries as home occupations, he said, is illegal under the Michigan Medical Marijuana Act. The current draft of the licensing scheme inappropriately mixes dispensaries with cultivation facilities, he said.

Ream said that the people of Ann Arbor did want the council and the city attorney’s office to do things that are illegal, cautioning against any attempt by the Michigan Association of Municipal Attorneys to take over the state act. He noted that ACLU lawsuits have begun, and cautioned against Ann Arbor setting a bad example for other communities in the state.

Medical Marijuana: Council Deliberations

City attorney Stephen Postema began by giving his perspective on the issue, which appears heavily influenced by the general prohibition in federal law against use of marijuana. “Federal law does not allow any of this,” he stated. The signage required of licensees under the licensing scheme would read:

THE MICHIGAN MEDICAL MARIHUANA ACT ACKNOWLEDGES THAT “FEDERAL LAW CURRENTLY PROHIBITS ANY USE OF MARIHUANA EXCEPT UNDER VERY LIMITED CIRCUMSTANCES.” SEE, MCL 333.26422(c). IF YOU HAVE ANY QUESTIONS OR CONCERNS PLEASE CONSULT WITH YOUR ATTORNEY.

Postema cited the unclarity of the Michigan Medical Marijuana Act, which was enacted by statewide voter referendum in 2008. He contended that there is a question about whether the absence of reference in the state law to dispensaries indicates that such facilities are allowed or rather that they are prohibited.

Postema indicated that the proposed licensing scheme combined businesses and home occupations into a single ordinance. It was this point on which Carsten Hohnke (Ward 5) focused in opening the council questioning of Postema: Why were both businesses and home occupations subject to licensing? In answering Hohnke, Postema indicated dispensaries were felt to need regulation, based on the negative experience of other communities in California and Colorado. An approach where there was no regulation, Postema said, was acknowledged as a “clear error.” Postema then said that Colorado now had a much higher level of regulation than what he was proposing. He alluded to various safety concerns, and contended that federal authorities have not taken a hands-off policy. Postema did not mention home occupations in his response.

Hohnke followed up by asking specifically why home occupations were included. Postema suggested that a licensing mechanism for home occupations would help prevent LAWNET (the Livingston and Washtenaw Narcotics Enforcement Team) and the Ann Arbor police department from raiding a suspected illegal operation, only to find out after the fact that it was a licensed operation. Hohnke concluded that this was potentially a benefit to the licensee.

Hohnke pressed Postema on the issue that Ream had raised during public commentary, namely the apparent conflict between Postema’s proposed regulations and the state law provision that those who apply for registry cards not be subject to inspection. From the state law:

Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency.

Postema said that the state law does not prohibit all inspection, but does afford a broad provision against prosecution for personal or caregiver use. Postema alluded to the broad powers that municipalities have to ensure safety. He indicated that he thinks the licensing requirements are reasonable, but that they may have to be tested in court.

Picking up on the idea that it would be useful to know “who not to go after,” Christopher Taylor (Ward 3) floated the idea of getting addresses from the state registry, but Postema seemed to indicate that this would not be feasible. Taylor wondered if people who grow orchids indoors are subject to the same kind of ventilation requirements that would be imposed on licensees.

Sandi Smith (Ward 1) suggested that a portion of the licensing fee be allocated to an educational effort. In response to a question from Stephen Kunselman (Ward 3) Postema suggested that the licensee fee might be a few hundred dollars. The fee has not yet been specified, but will eventually be set by the council, according to the draft ordinance.

Kunselman wanted to know what the rationale was for the limit of 15 licenses. Postema allowed that it was a good question. He said that some kind of cap was appropriate, due to the ambiguity of the state law and safety concerns. He deferred to Wendy Rampson, head of planning for the city, for the rationale for the number. She said there were bit more than 43,000 registered patients in the state of Michigan so far, but she allowed the number would go up. That’s less that 1% of the population of Michigan.

If 5% of Ann Arbor residents were registered patients, she said, that would work out to 5,700 patients. For dispensaries already operating, she said, the number of patients they serve ranges between 300 and 1,000. Assuming that a typical dispensary might serve 500 patients, 12 dispensaries could serve the needs of the estimated 5,700 patients. She concluded that 15 would be a good starting point, and after a year, the city would have a clearer understanding of what an appropriate number would be.

Kunselman asked if limiting the number of licenses could have the consequence of driving the creation of larger dispensaries. Postema allowed that it could.

Sabra Briere (Ward 1) observed that the ordinance was before the council at its first reading and that the council should have more answers to their questions than they currently did. She suggested that they could either work on it more between the first and second reading of the ordinance, or they could postpone its consideration. She asked Postema what he thought the council should do. Postema suggested a postponement.

Outcome: The council unanimously voted to postpone the medical marijuana licensing scheme until its Jan. 3, 2011 meeting. The new zoning rules regulating where medical marijuana dispensaries and cultivation facilities can be located, which were scheduled to be heard at second reading on Dec. 20, were rescheduled for Jan. 18.

Michigan Vehicle Code Adoption

Before the council for its first reading was a measure that proposed to adopt the complete Michigan Vehicle Code (MVC) as a part of the city code – Chapter 126 Traffic. In early 2008, the council had adopted the MVC, but excluded portions of the MVC addressing speed limits. [.pdf of corresponding Michigan Vehicle Code]

Part of the background to the proposal is that the city of Ann Arbor lost an August 2008 court case in which two speeding tickets issued in late 2007 were thrown out, because the city of Ann Arbor’s posted speed limits did not conform to state law with respect to the number of access points in a half-mile stretch of road, or a guideline that stipulates posted limits not be lower than the travel speed of the 85th percentile of traffic. From an Aug. 23, 2008 Ann Arbor News article:

An Ann Arbor judge’s decision to throw out two speeding tickets last January – along with the way the city sets speed limits  – was upheld on appeal in Washtenaw County Circuit Court on Friday.

…

Two Ann Arbor residents who were ticketed for speeding last year challenged the legality of the posted speed limits. They based their argument on a 2006 state Motor Vehicle Code that requires the use of the number of access points – driveways and intersections along a half-mile stretch of road – to set speed limits. The fewer access points, the higher the speed that must be set under the law.

One of the ticketed drivers, James Walker, is a recognized expert on speed limits. He’s testified before state lawmakers on setting 85th percentile speed limits.

National studies indicate that setting limits at or below the speed that 85 percent of drivers travel reduces friction between drivers and boosts safety.

Walker said Ann Arbor’s posted limits typically fall in the 10th to 30th percentile of the speeds drivers actually travel.

Walker’s attorney, John Shea, argued that the city cannot legally set a limit other that what’s allowed under the access-point law unless it adopts the 2006 Uniform Traffic Code, which allows cities to use the 85th percentile formula.

Sabra Briere (Ward 1), Tony Derezinski (Ward 2), and Stephen Rapundalo (Ward 2).

On Monday, Tony Derezinski (Ward 2) introduced the proposal to adopt the MVC by noting there’d been some sentiment expressed in the community that some of the local speed limits appear to be set too low, and part of the impetus to change the city’s code to bring it into conformity with the MVC was based on the implicit threat of a class-action lawsuit.

In the back-and-forth among city attorney Stephen Postema, mayor John Hieftje and Sabra Briere (Ward 1), it emerged that Postema felt that adoption of the complete MVC would allow the city to contemplate additional speed studies as part of the method it uses to set speed limits.

Outcome: The council voted unanimously to adopt the MVC as a part of its traffic code for the ordinance change on first reading. To enact the change will require a final approval at a second reading after a public hearing.

Communications and Comment

Sometimes city council meetings include presentations at the start of the meeting that fall under the “introductions” section of  the agenda. There are also multiple slots on every agenda for city councilmembers and the city administrator to give updates or make announcements about important issues that are coming before the city council. And every meeting typically includes public commentary on subjects not necessarily on the agenda.

Comm/Comm: Christmas Trees

Sabra Briere (Ward 1) asked the question: What are people supposed to do with their Christmas trees after Christmas? The question arose because the city has announced it will not be picking them up immediately after the holidays. Sue McCormick, the city’s public services area administrator, sketched out three options: (1) take trees to the drop-off station, at 2950 E. Ellsworth, (2) leave them in the backyard for the birds, or (3) cut them up and place them in a compost cart – they’ll be picked up when yard waste collection resumes in April.

Comm/Comm: Library Lot

Alan Haber addressed the council on the topic of the future use of the city-owned Library Lot, on the top of the underground parking garage currently under construction on Fifth Avenue. He criticized what he characterized as an inclination to transform public property into something private. He suggested that The Roxbury Group’s report – evaluating the two finalist proposals that had come in response to the city’s RFP (request for proposals) for the lot’s future – was a matter of hiring a consultant to tell the city to do what the city already wanted to do. He contended that the Library Lot is the only suitable spot for a public gathering place in the city, that could serve as the center’s city. [In response to the city's RFP, Haber had helped to put forward a proposal for a community commons, which was ultimately rejected by the review committee. Coverage of the Ann Arbor Downtown Development Authority board's Dec. 1 meeting includes that body's reaction to The Roxbury Group's report.]

Haber’s wife, Odile Hugont-Haber, also addressed the council on the topic of the future use of the Library Lot. She said she wants to see a green area there. She described how there is no place for citizens of Ann Arbor to interact other than perhaps the “gourmet ghetto” of the Main Street area. Creating a community commons at the Library Lot site, she said, was not a matter of money, but a matter of will. She called for the inclusion of children’s playground equipment at the site.

In his time for communications, Stephen Rapundalo (Ward 2), who chairs the committee that is reviewing responses to the Library Lot proposals, indicated that no decisions have yet been made. [The Roxbury Group's report indicated a preference for the proposal from Valiant for a hotel/conference center, over Acquest's proposal for a hotel.] Rapundalo stated that it had not been the task of the consultant to do a feasibility study, but rather to determine whether the proposers had the wherewithal to bring their proposals to completion.

Comm/Comm: Affordable Housing

Lily Au appeared before the council to criticize an Avalon Housing plan to demolish apartments at 1500 Pauline Blvd. and built new units. [Chronicle coverage of the Avalon proposal: "Low Income Housing Project Planned"] She told the council she was wearing black to mourn the death of a homeless person who had died behind the Kroger at Westgate.

Comm/Comm: Progressive Agenda

Thomas Partridge called upon the city council to renew a spirit of goodwill, and called upon the new governor’s state administration to enact measures to support affordable housing, transportation, health care and education.

Comm/Comm: Liquor License for Bar Louie

Tim Hull addressed the council on the topic of an agenda item involving a liquor license transfer from one corporate entity to another related one – from Bar Louie Ann Arbor, Inc. to BL Restaurant Operations, LLC.  d/b/a Bar Louie. Hull told the council that he’d tried to get service from Bar Louie, using his state ID for proof of age, but had been denied service because he could not produce a driver’s license. Hull told the council he does not own a car and does not have a license. He encouraged the council to use the occasion of a liquor license transfer as an opportunity to raise those types of issues with licensees. The council later approved the request for transfer without comment.

Comm/Comm: Budget, Economics

Kirk Profit – director of Governmental Consultant Services Inc., which the city retains as its paid lobbyist in Lansing – gave the council a presentation on the condition of the state’s budget, in the context of a transition to a new governor and new leadership in the legislature.

Councilmembers and city administrator Roger Fraser reported out in various ways from the  council’s 8 a.m.-2 p.m. Dec. 4 budget retreat. One key theme of the retreat, which was organized around a list of city services, was communication. The topic came up in the context of communication between the administration and the public, between the public and the city council, between the city’s labor unions and the administration, and between individual councilmembers.

The Chronicle will offer coverage of the Dec. 4 retreat and discussion of it from Monday’s council meeting separate from this meeting report.

Comm/Comm: Dundee’s Appreciation

Representatives from Dundee Village and Dundee Township appeared before the council to express their thanks for assistance the city had provided to them in connection with the June 6, 2010 tornado disaster that had struck their community.

Comm/Comm: Human Rights Award

Leslie Stambaugh appeared before the council on behalf of the city’s human rights commission to present the city with a plaque from the Michigan Alliance Against Hate Crimes, recognizing the Ann Arbor community response group.

Comm/Comm: Ann Arbor Skatepark

Trevor Staples and Scott Rosencrans gave a presentation to the council on behalf of the Friends of the Ann Arbor Skatepark, tracing the history of the group from a loosely organized collection of individuals to a formally established nonprofit corporation. A highlight of the presentation was the group’s participation in a $250,000 challenge sponsored by Pepsi. In the Pepsi Refresh challenge project, proposals compete for votes each month – one vote per project is allowed each day. The skatepark is competing for the month of December. To vote for the Ann Arbor Skatepark proposal, Chronicle readers can visit the website: Pepsi Refresh Project.

Comm/Comm: Rugby NAP Volunteers

At one of the council’s two council meetings per month, a proclamation is made to honor specific volunteers in the city’s parks program. This month, recognition was given to the rugby community, which includes men’s and women’s teams at the University of Michigan as well as city-based teams. The park they’ve adopted is the one where they practice and play, Riverside Park. [Chronicle Rugby coverage: "Football Saturday, Not Just at the Big House"]

Present: Stephen Rapundalo, Mike Anglin, Margie Teall, Sabra Briere, Sandi Smith, Tony Derezinski, Stephen Kunselman, Marcia Higgins, John Hieftje, Christopher Taylor, Carsten Hohnke.

Next council meeting: Monday, Dec. 20, 2010 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]

Wendy Rampson, head of the city's planning staff, and Eric Mahler, newly elected chair of the Ann Arbor planning commission, at the commission's July 8, 2010 meeting. (Photos by the writer.)

That business included approval of revised area, height and placement (AHP) standards that have been under review for more than two years. The revisions have pulled back from some of the original proposals – for example, there’s no longer an uncapped building height in certain districts. It’s the first significant overhaul of these standards in roughly 50 years, with the goal of reflecting prevailing community values. The recommendations will now be forwarded to city council for final approval.

The planning commission also voted to postpone action on a project at the Kroger on South Maple. The grocery is adding a drive-thru pharmacy, and needs city approval to reconfigure its parking lot to accommodate the drive-thru lane. A few unresolved issues led commissioners to push back consideration until their July 20 meeting.

And the commission elected a new slate of officers, with local attorney Eric Mahler replacing architect Bonnie Bona as chair.

Area, Height & Placement

The fact that no one spoke during the meeting’s public hearing on changes to the city’s area, height and placement standards might be attributable to the July 4th holiday week, or it could be related to the multiple public forums held on the topic over the past year, most recently on June 16, 2010. [For a primer on AHP, see Chronicle coverage: "Zoning 101: Area, Height, Placement." Additional information is on a page of the city's website dedicated to the AHP revision process.]

Revisions to these standards have been in the works since 2007, when the planning commission and staff started looking at doing a comprehensive update – for the first time in more than 50 years. The rationale for making revisions is summarized in a planning staff report that accompanied the proposed changes:

More recently, best practices in urban planning and environmental design recommend a more sustainable approach to land use practices including: a) more compact use of land and infrastructure, b) the preservation of natural systems, c) accommodating new growth along transit corridors in existing urban areas which have existing infrastructure, d) locating buildings closer to the right-of-way to promote non-motorized access, and e) mixed land uses. The challenge that decision makers in Ann Arbor now face is that current ordinances related to area, height and placement do not encourage these land use practices.

After working with an advisory committee, in the summer of 2008 the planning commission passed a recommendation for initial revisions.

Planning staff presented the recommendations to a city council work session in September 2008, and got direction from council to get additional public input about the changes. Eight public workshops were held, and at its Dec. 7, 2009 meeting, the council passed a resolution kicking the issue back to the planning commission for further consideration. Since then, planning staff and the commission’s ordinance revisions committee have been working on further revisions. Those revisions were presented to the full commission at their July 8 meeting.

AHP: Proposed Changes to Draft

Based on public input, as well as staff and committee review, there are a raft of proposed changes to the AHP amendments that were originally drafted. [.pdf of summarized list of substantive AHP changes and .pdf of complete revisions] Here’s a general overview of some of the current proposed changes:

• Area: “Area” is a measure of density, specifically using a floor-area ratio (FAR). FAR is the ratio of the square footage of a building divided by the size of the lot. A one-story structure built lot-line-to-lot-line with no setbacks corresponds to an FAR of 100%. A similar structure built two-stories tall would result in an FAR of 200%. Originally, three retail zoning districts had a proposed FAR of 200%, an increase compared to the current maximum of 40-50%. Some of those increases were scaled back under the revised draft. Now, the proposed FARs are: 1) 100% in the C1 retail district; 2) 150% in the C1B retail district; and 3) 200% in the C3 retail district.
• Height: Building heights in four zoning districts – office, retail, research, and research & light industrial – had originally been proposed as uncapped, but now have height limits of 55 feet and four stories. The maximum height for hotel districts – originally proposed for 120 feet – now have height limits of 50 feet, or up to 80 if there is parking below at least 35% of the building. The maximum height in the C2B (business service) zoning district has been reduced from 60 feet to 55 feet.
• Placement/Setbacks: “Placement” regulations govern where a building can be constructed within a particular lot, and are expressed in terms of “setbacks.” For example, a 25-foot minimum front setback would mean that a building needs to have a 25-foot buffer between it and the front lot line. There are several setback changes proposed. In the original proposal, setbacks in two retail zoning districts – C1 and C1B – had no minimum setback, compared to the existing 25-foot minimum. Now, the minimum setback is proposed at 10 feet.

Jeff Kahan of the city’s planning staff is the point person for the AHP initiative, and gave the staff report to commissioners.

No one spoke during a public hearing on the AHP changes. Earlier in the meeting, Rampson had said that the official notice of the meeting had included an incorrect start time – 7 p.m. – which might result in people coming late. Though planning commission meetings typically start at 7 p.m., Thursday’s meeting began at 6 p.m. to accommodate the change of venue. However, no one arrived to address the commission – there were no speakers during the final opportunity for general public commentary, either.

AHP: Commissioner Discussion

During their discussion of the AHP changes, commissioners primarily asked clarificational questions and gave some feedback, but did not suggest substantive revisions.

Evan Pratt asked a question about instances when a “skinny” piece of land doesn’t abut a residential property, but comes close. He asked whether they could modify the language to indicate a distance, rather than specify only parcels that abut residential.

Pratt was referring to the following changes, as outlined in a memo from the planning staff:

• Increase side and rear setbacks where non-residential abuts residentially zoned land from 20’ to 30’ wherever 20’ was required

• Require additional 1 foot side and rear setback for each 1 foot of building height above 30’ (e.g. a new 55’ building abutting residential would need to be set back 55’ from the residential property line)

• Restore the 100’ setback requirement for RE (Research) for side and rear setbacks

• Proposed adding modifications to Chapter 62 (Landscaping & Screening) in the following manner: a) add multiple family uses to those uses requiring a conflicting land use buffer when abutting residential property; b) increase the number of required trees in the conflicting land use buffer from 1 tree per 20 lineal feet to 1 tree per 15 lineal feet. This change is being coordinated with Public Services (Systems Planning) which is currently pursuing amendments to Chapter 62.

Kahan said he could talk to Kerry Gray and Jerry Hancock, members of the city staff who are handling revisions to Chapter 62. The overall goal is to provide a buffer to residential areas, he said.

Pratt next asked whether the lower building height for hotels (R5 zoning districts) was in response to public input. He noted that those parcels don’t seem to be imposing on any residential areas. Kahan confirmed that the R5 districts are proximate to freeways: the South State corridor at I-94, Plymouth Road at US-23, and Jackson Road at I-94. The main concern from the public had been uncapping height limits, he said. Responding to a follow-up from Pratt, he clarified that there are no FAR restrictions in those districts – there are no limits to a building’s massing.

Pratt said that Ann Arbor isn’t currently a big hotel town, but looking to the future, that might change.

Bonnie Bona spoke next, noting that other than Kahan, she was the only other person on the commission who’d been around throughout the long AHP process. The longer they’ve worked on it, she said, the more it feels like they’re going backwards – but that’s not the case. The current changes are a step back from a year ago, but are far better than the existing standards.

She made several observations about the revisions – noting, for example, that restrictions to height limitations in R4 (residential) districts do not include the R4C district. That’s because a separate study committee is looking at revisions to R4C and R2A districts.

Overall, “we’ve come a long way with this,” Bona said, adding that she thinks it will reduce number of planned projects that are proposed. [Planned projects are those requiring zoning variances, but not a rezoning as with planned unit developments.]

Diane Giannola raised a question about an additional one-foot setback requirement:

Require additional 1 foot side and rear setback for each 1 foot of building height above 30’ (e.g. a new 55’ building abutting residential would need to be set back 55’ from the residential property line)

Not many parcels – other than Georgetown Mall on Packard – would fit into this category, she noted. She wondered why it was necessary to include it, given that there were so few parcels to which the requirement would apply.

Kahan cited a few other applicable properties: The Colonnade on Eisenhower, the Cranbrook shopping plaza at Ann Arbor-Saline and Eisenhower, the Busch’s plaza on Green Road. These “micro-sized” lots won’t be able to easily build up to 55 feet, he noted, unless they put parking underground, which is expensive. Smaller developers won’t likely take advantage of the extra height option, but larger developers would be able to afford it.

Jean Carlberg added that in looking toward potential future development, there needed to be those safeguards on height and setback.

Planning commissioners Evan Pratt, left, and Kirk Westphal at the July 8, 2010 planning commission meeting.

Kirk Westphal asked about changes in the C2B retail district. FAR isn’t changing, but rear setbacks are going from none to 30 feet when abutting residential, plus an extra foot for every additional foot of height. He wondered whether that would pose an additional hardship for property owners – for example, along Stadium Boulevard. In other districts, there’s been an increase in FAR to promote compact development closer to the street.

Kahan said that overall, the intent is not only to increase workability, but also to ensure consistency among the city’s employment and commercial districts. He noted that a big plus is the large reduction in the required front setback – a minimum of 40 feet is being reduced to 10. They’re hoping that it will increase pedestrian-oriented development, Kahan said, with buildings positioned closer to the street and away from neighborhoods.

Westphal said he’d forgotten about the dramatic decrease in front setbacks.

Eric Mahler said he was a little confused about the phrase “below at least 35% of the building,” in reference to parking. Kahan clarified that at least 35% of the building’s footprint would need to include underground parking, in order to gain height premiums in certain districts. The intent is to encourage putting parking underground, he said.

Wendy Woods noted that there had been a lot of public input and staff input in this process, and that it truly was a community effort. She applauded planning staff for attending the many public meetings on the topic.

Outcome: Changes to the area, height and placement standards were unanimously approved. The city council will consider and vote on the issue at an upcoming meeting before the changes can take effect.

After the vote, Mahler wrapped up by saying, “That long saga comes to an end – good work.”

Kroger Site Plan Postponed

Owners of the Kroger store on South Maple, near the Westgate Shopping Center, want to add a drive-thru pharmacy on the south side of the building, and need city approval to reconfigure the parking lot to add a drive-thru lane.

The proposal includes widening the driveway along the south side of the building, and removing 14 of the 22 existing parking spaces there. Even after eliminating those spaces, the site will have 42 spaces more than the maximum allowed by code. [The grocery store site pre-dates changes to zoning that imposed a maximum number of parking spaces.] The existing walkway and landscaped areas will be reconfigured, with a pedestrian walkway flowing through an island that’s encircled by the pharmacy drive-thru lane. Bicycle parking will be moved to the front of the store.

Staff is proposing modifications to the driveway width and configuration, narrowing a proposed east-west lane from 35 feet to 26 feet.

The planning staff presentation was made by Alexis DiLeo, and the staff recommendation was for postponement.

Kroger Site Plan: Public Hearing

Two representatives of the Kroger project spoke during the public hearing.

Jeffery Scott, an architect based in Farmington, is working on the Kroger addition and spoke to the planning commission about the project at their July 8 meeting.

Jeffery Scott introduced himself as the architect on the project. He explained that trucks going back to the store’s loading dock often jump the curb on the southwest corner, and the reconfiguration would give those semis a wider turning radius. He said he was confident that they could tweak the project to the city’s satisfaction, with the caution that they didn’t want to make the overall configuration “too curvy.” He asked that the planning commission approve the project, contingent on “fine tuning” some of the details with city staff.

Stephan Hennard of Kroger’s Michigan operations, based in Novi, introduced himself and indicated he was there to answer questions, if commissioners had any.

Kroger Site Plan: Commissioner Discussion

Bonnie Bona began by asking for additional clarification from Scott about the driveway width. Scott said the site plan proposes to widen the driveway to allow trucks more room to maneuver. Bona indicated that the city staff would work with Kroger on that.

She then asked whether Kroger considered moving the parking spaces further west, noting that there’s 32 additional feet beyond the end of the parking area. She also wondered whether they could eliminate one or two of the parking spots along that stretch. DiLeo said they hadn’t considered that, but it might be possible, given the excess amount of parking on the overall site. She said the staff wouldn’t mind if all the spaces were removed from the south side and replaced with landscaping – a suggestion that Bona endorsed.

Wendy Woods agreed with Bona that reducing some of the parking to the west of the drive-thru would be good. She was concerned that customers parking in those spots would have to walk across the drive-thru lane in order to get to the store’s entrance. She was also concerned about pushing carts along that path in inclement weather. Scott noted that the volume for drive-thru customers isn’t high – typically four cars per hour, on a good day.

Woods asked whether the pharmacy would be open 24/7. Hennard indicated that the pharmacy would close at 9 p.m. on Monday-Saturday, and at 6 p.m. on Sunday. Responding to other queries, he said that there is lighting on that side of the building, and that there would be yield signs and pavement markings to guide both traffic and pedestrians.

A site plan detail of the proposed pharmacy drive-thru at the Kroger on South Maple Road. (Links to larger image)

Erica Briggs wondered whether it would be possible to remove the parking spaces along the store’s southwest side, saying it’s potentially confusing for customers to have parking there. She also asked whether the sidewalk next to the parking was envisioned as a staff break area.

Hennard said that Kroger could mark those spots as employee-only parking. The area next to the parking has picnic tables and is the only outside break area for staff, he said.

Earlier in the discussion, Tony Derezinski had noted that they needed to decide between two options: 1) approve the site plan, contingent on working out any unresolved issues, and 2) postpone the vote. He pointed out that Scott would like to know generally whether the commission approves of the project, and it seemed that they did, he said. Derezinski then asked DiLeo whether this could be brought up at the commission’s next meeting – was there sufficient time to wrap things up by then?

DiLeo noted that the next regular meeting was on July 20, and if they canceled their Aug. 3 meeting [which they did, later in the meeting], then the next meeting after that was Aug. 17. Two weeks would be tight, she said, and there are no guarantees that they could finish, but they’d make every effort.

DiLeo said there were five outstanding issues to address, including 1) coming to agreement about modifying the driveway width; 2) updating the “existing conditions” sheet to reflect the current site, specifically showing the wireless communications tower, accessory buildings and enclosure; 3) revising a comparison chart to include all variances that had been previously granted for the site; and 4) showing documentation that Kroger will get a temporary grading easement from the adjacent property owner.

Outcome: Commissioners voted unanimously to postpone the project until their July 20, 2010 meeting.

New Officers Elected, Election Day Meeting Canceled

The commission elected a slate of new officers at their July 8 meeting, which had been moved from Tuesday to Thursday because of the July 5 holiday. Slips of paper were distributed for anonymous voting, but when it became clear that none of the seats were contested, they bagged the written ballots and held elections by a show of hands.

Eric Mahler is the new chair, taking over from Bonnie Bona. Vice chair is Kirk Westphal, and Diane Giannola was elected secretary. Bona walked over to Mahler, handed him the wooden gavel, shook his hand – and once again, a smooth democratic transition was secured.

Diane Giannola, the planning commission's newly elected secretary, proposed canceling their Aug. 3 meeting to accommodate the primary election.

Later in the meeting, another organizational issue emerged. Giannola proposed canceling the commission’s Aug. 3 meeting, since it falls on the date of the primary elections. Giannola said that in general, she didn’t think that any city business should be done on that day, in order to give people the chance to vote.

Wendy Rampson of the city’s planning staff indicated that things were pretty quiet – the Kroger site plan was the only item coming up that she was aware of. Giannola asked whether they could make it a standard practice not to schedule meetings on primary election days – it would be consistent with the practice of not holding meetings on the date of the November general election. Bona said that one good thing about having it as a standing practice is that they could set their official meeting calendar with that in mind, rather than setting the date and then canceling it.

Tony Derezinski said it would be possible to consider, given that they were currently revising their bylaws. But he noted that the next batch of commissioners might have a different view, and perhaps they’d want the flexibility to make that call themselves.

Mahler suggested running the question by the city attorney’s office. A vote to cancel the Aug. 3, 2010 meeting passed unanimously.

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