The Ann Arbor Chronicle » attorney-client privilege

Opinion on Tax Assessment Now Public

Chronicle Staff — Wed, 02 Apr 2014 19:39:17 +0000

Sixteen days after the Ann Arbor city council directed its city attorney to re-draft for a public audience a privileged memo on tax assessment procedures, the city attorney’s office has provided the document to the city clerk’s office, councilmembers and the city administrator.

The council voted at its March 17, 2014 meeting to direct the preparation of a new memo – instead of simply voting to waive privilege on an existing memo. [.pdf of public opinion on tax assessment]

Ann Arbor Releases Bond Memo

Chronicle Staff — Thu, 20 Mar 2014 20:14:18 +0000

After the Ann Arbor city council voted on March 17, 2014 to waive attorney-client privilege on a memo written by outside bond counsel, the city of Ann Arbor has provided the document to The Chronicle in response to a request made under Michigan’s Freedom of Information Act. [.pdf of Aug. 9, 2012 Dykema memo]

The Chronicle has not yet reviewed the memo, which deals with private-use tests as applied to the Library Lane underground parking structure. The private-use limitations stem from the fact that the structure was financed with Build America Bonds. For additional background, see: “Column: Rocking Back on the Library Lot.”

Council Takes Steps on Library Lane Future

Chronicle Staff — Tue, 18 Mar 2014 07:01:42 +0000

The question of how the top of the Library Lane underground parking structure in downtown Ann Arbor will eventually be used has taken some steps toward getting answered. The city council acted on two key related resolutions at its March 17, 2014 meeting.

The Library Lane parking deck is highlighted in yellow. The name “Library Lane” is based only on the proximity of the structure to the downtown location of the Ann Arbor District Library. The library does not own the structure or the mid-block cut-through. (Base image from Washtenaw County and City of Ann Arbor GIS services.)

The council’s meeting actually featured three items related to the future of the Library Lane deck surface: (1) a resolution reserving part of the surface for a publicly owned urban park; (2) a resolution that moved toward hiring a brokerage service for selling development rights to the surface; and (3) a resolution that waived attorney-client privilege on a memo from the city’s outside bond counsel.

On the third item, the council voted to approve the waiver of an attorney-client privileged memo on the use of Build America Bonds that financed the parking deck.

The council vote on the urban park resolution was ultimately 7-3 with mayor John Hieftje, Christopher Taylor (Ward 3) and Margie Teall (Ward 4) dissenting. Sally Petersen (Ward 2) was absent. That came after a significant amendment to the resolution that gave flexibility to the square footage to be reserved instead of fixing it at 12,000 square feet. The key resolved clause, as adopted by the council, read:

Resolved, That City Council approve the reservation of the site for an urban public park of between approximately 6,500 and 12,000 square feet on the surface of the Library Lane Structure bounded by the Fifth Avenue sidewalk on the west, the Library Lane Street curb to the south, the western entry to the central elevator to the east, with the northern boundary to be determined at a future date;

The council’s vote came after public commentary from several speakers in support of the resolution. In addition, Ann Arbor District Library director Josie Parker was asked to the podium to comment and she read aloud a resolution that the library board had passed earlier that evening, opposing the council’s resolution.

A report on council deliberations, which lasted over 2.5 hours, is included in The Chronicle’s live updates from city hall during the March 17 meeting.

The resolution on reserving a portion of the surface of the Library Lane parking structure for a publicly-owned urban park had been postponed from the council’s March 3, 2014 meeting.

Library Lane park proposal as presented to the city’s park advisory commission on Feb. 25.

The proposal had been presented to the city’s park advisory commission, the week before the March 3 council meeting. For a detailed report of the PAC meeting of Feb. 25, 2014, see Chronicle coverage: “Concerns Voiced over Urban Park Proposal.”

One of the central points of friction over how to proceed is the question of who will own the area on which the publicly accessible space – a park or plaza – is placed.

The original resolution contemplated a publicly-owned facility that is designated as a park in the city’s park planning documents. That would have made it subject to a charter requirement on its sale – which would require a public referendum. The resolution as amended did not include that stipulation in its “resolved” clauses.

Councilmembers who are open to the possibility that the publicly accessible facility could be privately owned are concerned about the cost of maintenance of a publicly-owned facility. The city’s costs for maintaining Liberty Plaza – an urban park located northeast of the proposed Library Lane public park – are about $13,000 a year. That doesn’t include the amount that First Martin Corp. expends for trash removal and other upkeep of Liberty Plaza. [urban park cost estimates]

Revisions to the resolution were undertaken between the council’s March 3 and March 17 meetings. The version considered on March 17 indicated that the area designated as a park would be 12,000 square feet, compared to 10,000 square feet in the original resolution. That square footage reflects the actual dimensions of the proposed boundaries, according to a staff memo. That square footage was then revised at the meeting to “between approximately 6,500 and 12,000 square feet.” The revised resolution also eliminated an October 2014 deadline for making design recommendations to the council, and deleted any reference to PAC. [.pdf of revised resolution considered March 17 council meeting]

An additional point of friction involves how much of the site would be left for development if the northwest corner of the site were devoted to a public plaza/park. Related to that issue is whether the existing northern border of the site – which currently features the sides and backs of buildings – can adequately support a public plaza/park. The fact that the site does not currently enjoy other surrounding buildings that turn toward it is part of the reason advocates for a park are now asking that the Ann Arbor District Library, located to the south of the site, relocate its entrance from Fifth Avenue to the north side of its building. However, at the library board’s March 17 meeting, trustees on the board’s facilities committee reiterated reasons why they were not recommending to relocate the entrance.

In terms of the color-shaded map produced by city staff, the focus of controversy is the light orange area, which was designed to support “medium density building.” Based on staff responses to councilmember questions, the density imagined for that orange rectangle could be transferred to the planned high-density (red) portion of the site. The maximum height in the D1 zoning area is 180 feet, and the parking structure was designed to accommodate the structural load of an 18-story building.

City staff diagram illustrating the building possibilities for the top of the underground Library Lane parking structure.

Related to the urban park item was a resolution also approved at the March 17 meeting – to obtain brokerage services and to list the surface of the Library Lane deck for sale. It was brought forward by Stephen Kunselman (Ward 3).

The approach being taken would be similar to the path that the city council took to sell the former Y lot. For that parcel, the council directed the city administrator to move toward hiring a real estate broker to test the market for development rights. The council took the initial step with that property, located on William between Fourth and Fifth avenues in downtown Ann Arbor, close to a year ago at its March 4, 2013 meeting.

A rider agreement – to ensure against non-development and to sketch out the amount of open space and density – was part of the approach the city took to the former Y lot deal with hotelier Dennis Dahlmann.

The issue of open space figures prominently in Kunselman’s resolution. At the March 17 meeting, the council amended out the phrase “highest and best use” from the resolution. A key “whereas” clause and two of the “resolved” clauses read as follows:

Whereas, Developing the public space at the same time the site is developed will provide for increased activity, safety, and security; limit nuisance behavior at this public space; provide potential funding for public space features and programming; and have a responsible private entity for ongoing maintenance and
…
Resolved, That the City will seek, as conditions for development rights at a minimum, public open space, private maintenance of the public space, and pedestrian access to the public space as features of any private development;

Resolved, That implementation of the conditions for development rights will be determined by City Council through selection of the purchase offer that best responds to mixed-use, density, integration with surrounding uses, and public space and through the City’s established site plan procedures and policies;

The phrase “public space” sometimes is meant to include publicly-accessible, but privately-owned space. Kunselman responded to an emailed query about his intended interpretation of “public space” by writing: “It’s meant to give the broadest interpretation so as to solicit the widest range of interest by prospective purchasers.”

Also related to the council’s brokerage service resolution, the Ann Arbor planning commission agenda for March 18, 2014 includes a resolution giving advice to the council about how to handle the sale the parking deck surface. The two resolved clauses are:

Resolved, that the City Planning Commission recommends to City Council that if the development rights over the “Library Lot” underground parking structure are sold, an RFQ/RFP process be utilized that conditions the sale of the property in order to obtain a long-term, ongoing and growing economic benefit for the residents of the city;

Resolved, that the City Planning Commission recommends to City Council that if the development rights over the “Library Lot” underground parking structure are sold, an RFP contain some or all of the following conditions:

A building that generates foot traffic, provides a human scale at the ground floor and creates visual appeal and contains active uses on all first floor street frontage and open space;

A requirement for an entry plaza or open space appropriately scaled and located to be properly activated by adjacent building uses and to be maintained by the developer;

A “mixed use” development with a density at around 700% FAR that takes advantage of the investment in footings and the mid-block location with active uses that have a high level of transparency fronting the plaza and at least 60% of Fifth Avenue and Library Lane frontages, while encouraging large floor plate office or lodging as a primary use, residential as a secondary use, and incorporating a cultural venue.

A requirement for the entry plaza or open space to incorporate generous landscaping;

A requirement that discourages surface parking, limits vehicular access for service areas to be located in alleys where available and prohibits service areas from being located on Fifth Avenue

To seek an iconic design for this site that is visible on all four sides and that creates an iconic addition to the skyline;

A requirement for high quality construction; and

A request for a third party environmental certification (e.g., LEED Gold or Platinum)

The planning commission resolution is being brought forward by commissioners Diane Giannola and Bonnie Bona. It’s similar in intent to the recommendation that the commission gave to council regarding the sale of the former Y lot.

This brief was filed from the city council’s chambers on the second floor of city hall, located at 301 E. Huron.

Council Waives Privilege on Bond Memo

Chronicle Staff — Tue, 18 Mar 2014 06:19:12 +0000

A memo prepared by Dykema Gossett, the city of Ann Arbor’s outside bond counsel, will now be made public as a result of city council action taken on March 17, 2014.

The council voted over dissent from Christopher Taylor (Ward 3) – who is himself an attorney – to waive attorney-client privilege on the document, dated August 9, 2012. The memo apparently provides an analysis of the implications for use of the Library Lane parking structure, based on the Build America Bonds used to finance its construction. Facilities financed by such bonds carry with them private-use limitations.

The Chronicle has not yet been provided with a copy of the memo.

Taylor made a bid to amend the resolution so that it directed the city attorney to write a memo that included the information in the bond counsel’s memo. That was subsequently modified to direct the bond counsel to rewrite the memo for public consumption. But the amendment failed. It got support only from Taylor, mayor John Hieftje, Sabra Briere (Ward 1) and Margie Teall (Ward 4).

The idea of giving direction to rewrite an existing memo had proven to be a successful strategy on a resolution passed earlier in the March 17 meeting. That original resolution would have waived privilege on a Feb. 25, 2014 city attorney memo that described how property assessment appeals work. Instead, the council amended that resolution to direct the city attorney to prepare a new memo for public consumption.

In broad strokes, the American Recovery and Reinvestment Act (ARRA) of 2009 – also known as the stimulus act – created the Build America Bonds program. BAB authorized state and local governments to issue taxable bonds to finance any capital expenditures for which they otherwise could issue tax-exempt governmental bonds. The bonds have a limitation related to how the facilities financed through such bonds can be used. Glossing over details, only up to 10% of a facility financed through BAB can be dedicated to private use.

Related to the private use question are monthly parking permits. All other things being equal, the Ann Arbor Downtown Development Authority – which manages Ann Arbor’s public parking system under an arrangement with the city – does not contract with businesses for monthly parking permits in public parking structures. Instead, the DDA contracts with individuals on a first-come-first-serve basis.

For the Library Lane structure, the DDA offered introductory pricing of its monthly permits to encourage the structure’s initial use. Construction was completed in the summer of 2012.

The nature of that introductory pricing scheme could prompt questions about whether some of those permits might properly count as “private use” of the structure. A $95 introductory rate (which reflects a $50 savings over most other structures) was offered to employees of “new to downtown businesses” and to permit holders in the Maynard or Liberty Square parking structures who were willing to transfer their permit to Library Lane. The pricing is good through August 2014.

Two years ago, Barracuda Networks was moving to downtown Ann Arbor, and therefore qualified as a “new to downtown” business. So its employees thus qualified for the discounted monthly parking permits.

In a July 13, 2012 email to Ward 2 councilmember Jane Lumm, DDA executive director Susan Pollay wrote in part:

I met with the two key individuals directing the Ann Arbor Barracuda office and told them point blank, that that there will be parking for Barracuda employees now when they move to downtown, and as they grow their employee ranks over the next few years.

To the extent that Barracuda employees (or employees of other downtown businesses) have privileged access or enjoy an economic advantage (like reduced rates), then it’s possible the private use test could be met for those spaces.

Four years ago, Wayne State University professor of law Noah Hall, writing on behalf of the Great Lakes Environmental Law Center (GLELC), sent the city of Ann Arbor a letter on the BAB private-use issue. [For more detail, see his letter: April 14, 2010 letter from Noah Hall] GLELC was a party to a lawsuit filed over the Library Lane parking structure, which eventually was settled.

The document for which the council voted to waive attorney-client privilege on March 17 appears to be one of the items denied in a response to a request made by The Chronicle under Michigan’s Freedom of Information Act. The item not provided to The Chronicle was a file attached to an email sent by CFO Tom Crawford on August 13, 2012 to councilmembers – named “BHO 1-# 1607254-v8-Ann_Arbor _ -_Memo_re_Permitted_Parking_Arrangements.docx” The request for that document was denied based on the statutory exemption allowed for items protected under attorney-client privilege.

The resolution waiving attorney-client privilege on the Dykema memo was put forward by the city council’s audit committee. Members of that committee are Sumi Kailasapathy (Ward 1), Jane Lumm (Ward 2), Sally Petersen (Ward 2), Stephen Kunselman (Ward 3), and Jack Eaton (Ward 4). [For additional background, see: "Column: Rocking Back on the Library Lot."]

This brief was filed from the city council’s chambers on the second floor of city hall, located at 301 E. Huron.

March 17, 2014: Council Live Updates

Dave Askins — Mon, 17 Mar 2014 19:06:32 +0000

Editor’s note: This “Live Updates” coverage of the Ann Arbor city council’s March 17, 2014 meeting includes all the material from an earlier preview article published last week. The intent is to facilitate easier navigation from the live updates section to background material already in this file.

The Ann Arbor city council’s March 17, 2014 meeting features an agenda with one significant item held over from the March 3 meeting: a resolution that reserves a portion of the surface of the Library Lane underground parking structure in downtown Ann Arbor for an urban park that would remain publicly owned.

The sign on the door to the Ann Arbor city council chamber, installed in the summer of 2013, includes Braille.

But related to that item is a new resolution that directs the city administrator to move toward listing for sale the development rights for the top of the parking structure. The urban park designation was postponed from the March 3, 2014 meeting in part to synch up its timing with this resolution, which is being brought forward by Stephen Kunselman (Ward 3).

An additional related item is a resolution that would waive the attorney-client privilege on a document prepared by Dykema Gossett, the city’s outside bond counsel. The Build America Bonds used to finance construction of the Library Lane structure have private-use limitations on facilities constructed with financing from such bonds. The Dykema memo analyzes those limitations with respect to Library Lane.

That’s one of two separate resolutions on the waiver of attorney-client privilege. The other one, postponed from the council’s March 3 meeting, would waive privilege on a city attorney memo dated Feb. 25, 2014 on the topic of how appeals to property assessments work. The memo apparently helps explain “… the effect of a reduction of the assessment for one year by the Board of Review and/or the Michigan Tax Tribunal on the property tax assessment for the subsequent year.” The council’s agenda also includes an attachment of a report sent to the state tax commission, explaining how the city has complied with various deficiencies in documentation identified previously by the commission.

The council will be considering two items related to energy issues. First, the council will consider a resolution that directs the city’s energy commission and staff to convene a stakeholder work group, with the support of the city attorney’s office, to draft a commercial building energy benchmarking and disclosure ordinance. It’s an effort to help achieve goals in the city’s climate action plan.

The second energy-related item is a resolution that would direct the city administrator to hire an additional staff member for the city’s energy office, bringing the total back to two people, according to the resolution. The energy office staffer would “create and implement additional community energy efficiency, conservation, and renewable energy programs that further the Climate Action Plan’s adopted targets.”

After approving the purchase of 18 replacement vehicles on March 3 and several pieces of basic equipment at its Feb. 18 meeting, the council will be considering three resolutions that involve additional vehicles and equipment: two forklifts for the city’s materials recovery facility, a Chevrolet Impala for use by police detectives, and a lease for golf carts from Pifer Inc.

The 15th District Court, which is the responsibility of the city of Ann Arbor, is featured in two agenda items. The council will be asked to approve a $160,000 contract with the Washtenaw County sheriff’s office for weapons screening services for the 15th District Court, which is housed at the Justice Center – the police/courts building immediately adjoining city hall at the northeast corner of Huron and Fifth.

A second item related to the court is an introduction of Shryl Samborn as the new administrator of the 15th District Court. Samborn is currently deputy administrator. Current administrator Keith Zeisloft is retiring. His last day of work is March 28.

At its March 17 meeting, the council will also be asked to approve the temporary relocation of Precinct 1-7 from Pierpont Commons, 2101 Bonisteel, to Northwood Community Center (family housing). That relocation will be in effect for the May 6 vote on the transit millage and for the Aug. 5 primary elections.

Among the items attached to the March 17 agenda as reports or communications is one from the city administrator noting that for the April 5 Hash Bash event on the University of Michigan campus, all sidewalk occupancy permits and peddler’s licenses in the immediately surrounding area will be suspended. The possibility of such suspension – which the city administrator’s memo indicates is motivated by a desire to relieve congestion – is part of the terms and conditions of such licenses. They’ve been suspended for Hash Bash for at least the last six years, according to the memo.

Also among the attachments are the Ann Arbor Downtown Development Authority’s annual reports for 2004, 2005, 2006 and 2007. Those reports have been the subject of back-and-forth between Stephen Kunselman (Ward 3) and The Ann Arbor Observer over a report in The Observer’s December edition. A follow-up to an initial correction by The Observer is anticipated in the April edition – establishing that Kunselman’s contention had been correct: The DDA annual reports had not been filed with the governing body as required.

The consent agenda also includes approval of street closings for seven upcoming events: a soap box derby, SpringFest, Cinco de Mayo, Burns Park Run, Dexter-Ann Arbor Run, Washington Street Live and the Mayor’s Green Fair.

This report includes a more detailed preview of many of these agenda items. More details on other agenda items are available on the city’s online Legistar system. The meeting proceedings can be followed Monday evening live on Channel 16, streamed online by Community Television Network starting at 7 p.m.

The Chronicle will be filing live updates from city council chambers during the meeting, published in this article below the preview material. Click here to skip the preview section and go directly to the live updates. The meeting is scheduled to start at 7 p.m.

Top of Library Lane

The council’s March 17 meeting features three items related to the future development of the surface of the Library Lane underground parking structure in downtown Ann Arbor: (1) a resolution reserving part of the surface for a publicly owned urban park; (2) a resolution that moves toward hiring a brokerage service for selling development rights to the surface; and (3) a resolution that waives attorney-client privilege on a memo from the city’s outside bond counsel.

Top of Library Lane: Urban Park

A significant item was postponed from the council’s March 3, 2014 meeting: a resolution that reserves a portion of the surface of the Library Lane parking structure in downtown Ann Arbor for an urban park that would remain publicly owned.

Library Lane park proposal as presented to the city’s park advisory commission on Feb. 25.

The proposal was also presented to the city’s park advisory commission, the week before the March 3 council meeting. For a detailed report of the Feb. 25 PAC meeting, see Chronicle coverage: “Concerns Voiced over Urban Park Proposal.”

One of the central points of friction over how to proceed is the question of who will own the space on which the publicly accessible land – a park or plaza – is located.

The proposal put forward to PAC by Will Hathaway, of the Library Green Conservancy, and incorporated into the resolution to be considered by the council envisions a publicly-owned facility that is designated as a park in the city’s park planning documents. That would make it subject to a charter requirement on its sale – which would require a public referendum.

Councilmembers who are open to the possibility that the publicly accessible facility could be privately owned are concerned about the cost of maintenance. The city’s costs for maintaining Liberty Plaza – an urban park located northeast of the proposed Library Lane public park – are about $13,000 a year. That doesn’t include the amount that First Martin Corp. expends for trash removal and other upkeep of Liberty Plaza. [Urban park cost estimates]

Revisions to the resolution were undertaken since the council meeting on March 3. The now revised resolution – “version 3” in the city’s Legistar system – indicates that the area designated as a park would be 12,000 square feet, compared to 10,000 square feet in the original resolution. That square footage reflects the actual dimensions of the proposed boundaries, according to a staff memo. The revised resolution also eliminates an October 2014 deadline for making design recommendations to the council, and deletes any reference to PAC. [.pdf of revised resolution for March 17 council meeting]

The memo accompanying the revised resolution describes the changes as follows:

Square Footage and Boundaries. The first resolved clause is modified to reflect the information we received from City staff regarding the dimensions of the area. A site plan from staff showed the accurate square footage of the area to be designated as urban park as approximately 12,000 square feet.

Encouragement of Creative Public Programming. The second resolved clause text is now clearer that the various City government offices and the DDA are being asked to give thought to how they can encourage other groups to reserve the space on the Library Lane structure and put on creative public events.

Integration of Park Design with Adjacent Development. The third resolved clause is an acknowledgement that the two spaces should be designed to complement each other and that the City will play a leadership role in making that integration occur.

Activation of the Public Park through Integration with the Block. The fourth resolved clause acknowledges the necessity for the City to work with all the neighboring property owners on the Library Block in order to achieve the pedestrian connectivity that will result in vital, attractive public spaces. The text has been modified to clarify that reorientation need not entail major redevelopment.

Process for Creation of the Public Park and Development of the Remaining Library Lane Site. The resolved clauses that spelled out specific next steps have been removed from the resolution. The assumption now is that these respective City government bodies will move forward autonomously to accomplish these tasks.

An additional point of friction involves how much of the site would be left for development if the northwest corner of the site is devoted to a public plaza/park. Related to that issue is whether the existing northern border of the site – which currently features the sides and backs of buildings – can adequately support a public plaza/park. The fact that the site does not currently enjoy other surrounding buildings that face toward it is part of the reason advocates for a park are now asking that the Ann Arbor District Library, located to the south of the site, relocate its entrance from Fifth Avenue to the north side of its building.

City staff diagram illustrating the building possibilities for the top of the underground Library Lane parking structure.

Top of Library Lane: Brokerage Services

Related to the urban park item is a new resolution with the title: “Resolution to Direct City Administrator to List for Sale 319 South Fifth and to Retain Real Estate Brokerage Services.” That’s the address of the Library Lane underground parking structure.

The urban park designation was postponed from the March 3, 2014 meeting in part to synch up its timing with this resolution, which is being brought forward by Stephen Kunselman (Ward 3).

The council gave final approval to the sale – to hotelier Dennis Dahlmann for $5.25 million – on Nov. 28, 2013. That sale is now set to close on April 2, according to city administrator Steve Powers, who responded on March 12 to an emailed query from The Chronicle.

A rider agreement – to ensure against non-development and to sketch out the amount of open space and density – was part of the approach the city took to the former Y lot deal with Dahlmann.

The issue of open space figures prominently in Kunselman’s resolution. A key “whereas” clause and three of the “resolved” clauses read as follows:

Whereas, Developing the public space at the same time the site is developed will provide for increased activity, safety, and security; limit nuisance behavior at this public space; provide potential funding for public space features and programming; and have a responsible private entity for ongoing maintenance and
…
Resolved, That City Council deems the highest and best use for the property located at 319 South Fifth (Library Lane) to be mixed-use consisting of commercial, residential, and public use.
Resolved, That the City will seek, as conditions for development rights at a minimum, public open space, private maintenance of the public space, and pedestrian access to the public space as features of any private development;
Resolved, That implementation of the conditions for development rights will be determined by City Council through selection of the purchase offer that best responds to mixed-use, density, integration with surrounding uses, and public space and through the City’s established site plan procedures and policies;

Also related to the council’s agenda item about hiring a brokerage service to sell development rights to the Library Lane surface, the Ann Arbor planning commission agenda for March 18, 2014 now includes a resolution giving advice to the council about how to handle that sale. The two resolved clauses are:

Resolved, that the City Planning Commission recommends to City Council that if the development rights over the “Library Lot” underground parking structure are sold, an RFQ/RFP process be utilized that conditions the sale of the property in order to obtain a long-term, ongoing and growing economic benefit for the residents of the city;

Resolved, that the City Planning Commission recommends to City Council that if the development rights over the “Library Lot” underground parking structure are sold, an RFP contain some or all of the following conditions:

A building that generates foot traffic, provides a human scale at the ground floor and creates visual appeal and contains active uses on all first floor street frontage and open space;

A requirement for an entry plaza or open space appropriately scaled and located to be properly activated by adjacent building uses and to be maintained by the developer;

A “mixed use” development with a density at around 700% FAR that takes advantage of the investment in footings and the mid-block location with active uses that have a high level of transparency fronting the plaza and at least 60% of Fifth Avenue and Library Lane frontages, while encouraging large floor plate office or lodging as a primary use, residential as a secondary use, and incorporating a cultural venue.

A requirement for the entry plaza or open space to incorporate generous landscaping;

A requirement that discourages surface parking, limits vehicular access for service areas to be located in alleys where available and prohibits service areas from being located on Fifth Avenue

To seek an iconic design for this site that is visible on all four sides and that creates an iconic addition to the skyline;

A requirement for high quality construction; and

A request for a third party environmental certification (e.g., LEED Gold or Platinum)

The resolution is being brought forward by planning commissioners Diane Giannola and Bonnie Bona. It’s similar in intent to the recommendation that the commission gave to council regarding the sale of the former Y lot.

Top of Library Lane: Bond Counsel

An item also related to the future development of the area above the Library Lane structure is a resolution that would waive the attorney-client privilege on a document prepared by Dykema Gossett, city’s outside bond counsel. The Build America Bonds used to finance construction of the Library Lane project have private-use limitations on facilities constructed with financing from such bonds. The Dykema memo apparently analyzes those limitations with respect to Library Lane.

For the Library Lane structure, the DDA offered introductory pricing of its monthly permits to encourage the structure’s initial use. Construction was completed in the summer of 2012. And the nature of that introductory pricing scheme could prompt questions about whether some of those permits might properly count as “private use” of the structure. A $95 introductory rate (which reflects a $50 savings over most other structures) was offered to employees of “new to downtown businesses” and to permit holders in the Maynard or Liberty Square parking structures who were willing to transfer their permit to Library Lane. The pricing is good through August 2014.

In a July 13, 2012 email to Ward 2 councilmember Jane Lumm, DDA executive director Susan Pollay wrote in part:

I met with the two key individuals directing the Ann Arbor Barracuda office and told them point blank, that that there will be parking for Barracuda employees now when they move to downtown, and as they grow their employee ranks over the next few years.

The document for which the council might vote to waive attorney-client privilege on March 17 appears to be one of the items denied in a response to a request made by The Chronicle under Michigan’s Freedom of Information Act. The item not provided to The Chronicle was a file attached to an email sent by CFO Tom Crawford on Aug. 13, 2012 to councilmembers – named “BHO 1-# 1607254-v8-Ann_Arbor _ -_Memo_re_Permitted_Parking_Arrangements.docx.” The request for that document was denied based on the statutory exemption allowed for items protected under attorney-client privilege.

However, members of the city council’s audit committee have placed a resolution on the council’s March 17 agenda to waive attorney-client privilege on the document in question. [For additional background, see: "Column: Rocking Back on the Library Lot."]

Tax Assessment

The outside bond counsel’s memo on the use of Build America Bonds is not the only item on the March 17 agenda involving the waiver of attorney-client privilege. The other one, postponed from the council’s March 3 meeting, would waive privilege on a city attorney memo dated Feb. 25, 2014 on the topic of how appeals to property assessments work.

The memo apparently helps explain “… the effect of a reduction of the assessment for one year by the Board of Review and/or the Michigan Tax Tribunal on the property tax assessment for the subsequent year.”

The memo may help explain how one section of Michigan’s General Property Tax Act is properly interpreted and applied:

211.30c Reduced amount as basis for calculating assessed value or taxable value in succeeding year; applicability of section.
Sec. 30c. (1) If a taxpayer has the assessed value or taxable value reduced on his or her property as a result of a protest to the board of review under section 30, the assessor shall use that reduced amount as the basis for calculating the assessment in the immediately succeeding year. However, the taxable value of that property in a tax year immediately succeeding a transfer of ownership of that property is that property’s state equalized valuation in the year following the transfer as calculated under this section.

In Chart 1 below, a homeowner purchased the property in 2006 for $227,000. It was assessed at market value of $281,600, or $140,800 state equalized value. On appeal to the board of review in 2007, the assessed value was reduced to $113,500. In 2008, the 2007 assessed value does not appear to have been used as the basis for calculating the assessment.

Chart 1: Taxable and assessed value for a Ward 4 property as evaluated by the city (reds) and the board of review on appeal (blues). The property changed hands in 2006. An appeal to the board of review was granted in 2007, but the city assessor appears not to have used the reduced amount in calculating the assessment in 2008.

Also related to the issue of tax assessment, the March 17 agenda includes an attachment of a report sent to the state tax commission by city assessor David Petrak, explaining how the city has complied with various deficiencies in documentation identified previously by the commission. Among the notes in the letter was an issue that’s become a routine point of council meeting public commentary for Ann Arbor resident Ed Vielmetti – the timely filing of meeting minutes by various boards and commissions. From Petrak’s report to the tax commission:

Concern #2: Board of Review prepared minutes were not filed with the local unit clerk
Response: On February 18th 2014 the Board of Review minutes were officially filed with and recorded by The City Clerk. Staff will insure all future minutes are similarly recorded in a timely fashion.

Energy

The council will be considering two items related to energy issues: (1) a resolution directing the drafting of an energy disclosure ordinance; and (2) a resolution calling for a staff position to be filled.

Energy: Resolution on Development of Energy Disclosure for Commercial Buildings

The council will consider a resolution that directs the city’s energy commission and staff to convene a stakeholder work group, with the support of the city attorney’s office, to draft a commercial building energy benchmarking and disclosure ordinance. Such an ordinance would require owners of commercial buildings to disclose data on energy consumption by their buildings. It’s an effort to help achieve goals in the city’s climate action plan, which was approved by the city council at its Dec. 17, 2012 meeting. Ann Arbor’s climate action plan calls for a reduction in greenhouse gas emissions of 8% by 2015, 25% by 2025, and 90% by 2050. Baseline for the reductions are 2000 levels.

The resolution on the council’s March 17 agenda originated with the city’s energy commission. The staff memo compares the idea of a disclosure requirement for energy usage by commercial buildings to a miles-per-gallon rating for vehicles or nutritional facts labeling for food products. According to the memo, awareness of energy consumption has been shown to encourage building owners to have energy audits done on their buildings. Those audits can then lead to energy efficiency upgrades that result in cost savings to the building owners and reduced emissions.

An estimate for the potential energy cost savings that would result from an energy benchmarking ordinance in Ann Arbor – prepared by the Institute for Market Transformation (IMT) – is between $2 million and $2.5 million, annually. According to the staff memo, similar ordinances in place in other cities typically employed a phased approach, often with municipal buildings as well as the largest private buildings (by square footage) complying in the initial year(s), and medium-sized and/or smaller buildings participating in later years.

The energy commission is recommending that an ordinance be developed with a phased approach, with the phases based on building categories and sizes. One possibility is to start with all qualifying municipal buildings in the first six months, commercial buildings over 100,000 square feet in 12 to 18 months, multifamily and commercial buildings over 50,000 square feet in 24 to 36 months, and all commercial buildings over 10,000 square feet in 36 to 48 months. The goal would be to have reported energy consumption information for 80% of the commercial square feet in the city within five years of adoption.

Energy: Resolution on Energy Office Staff

The second energy-related item on the March 17 council agenda is a resolution that would direct the city administrator to hire an additional staff member for the city’s energy office, bringing the total back to two people, according to the resolution.

The energy office staffer would “create and implement additional community energy efficiency, conservation, and renewable energy programs that further the Climate Action Plan’s adopted targets.” Among the specific efforts cited in the resolution are the city’s property assessed clean energy (PACE) program.

At its March 4, 2014 meeting, the city’s planning commission passed a resolution in support of the hiring. Planning commissioners were briefed on the issue by Wayne Appleyard, chair of the energy commission. Resolutions of support were also passed by the city’s energy and environmental commissions.

Wheels

Wheels: Forklifts

The council will be asked to approve the purchase of two Clark C30 forklifts for use at the city’s materials recovery facility (MRF) for a total of $55,268.

The forklifts to be purchased would replace two that are currently being rented at a cost of $12,000 a year. The city is calculating that the purchase cost will be covered by savings in rental costs in 2.3 years.

Wheels: Detective

On the council’s March 17 agenda is the approval of the purchase of a police detective vehicle – a Chevrolet Impala – from Berger Chevrolet in Oakland County for $26,750. The car will replace a vehicle that in the next year will have reached an 80,000-mile limit specified in the city’s labor contract.

Wheels: Golf Carts

The council will be asked to approve an amendment to a two-year golf cart lease with Pifer Inc. The agreement would increase the original number of 65 leased carts by 34 carts, for a total of 99 carts. The city leases golf carts from Pifer for the Huron Hills and Leslie Park golf courses.

The lease amendment would be for two years, for an amount not to exceed $50,340 over the length of the lease amendment term. Funding for FY 2014 would come from the parks and recreation services general fund and would be in the proposed budget for FY 2015, according to a staff memo. In FY 2013, the city generated about $225,000 in revenue from golf cart rentals.

The council’s resolution also will approve the sale of 32 city-owned golf carts to Pifer for $50,340. The city’s park advisory commission recommended the action on golf carts at its Feb. 25, 2014 meeting.

15th District Court

The 15th District Court, which is the responsibility of the city of Ann Arbor, is featured in two agenda items.

15th District Court: Weapons Screening

The council will be asked to approve a $160,000 contract with the Washtenaw County sheriff’s office for weapons screening services for the 15th District Court, which is housed at the Justice Center – the police/courts facility immediately adjoining the Larcom city hall building at the northeast corner of Huron and Fifth.

The total amount of the contract reflects an amount of $26.24 per hour per court security officer. According to the staff memo accompanying the resolution, it’s estimated that three officers would be assigned on a given day with hours staggered to match the ebb and flow of court business through a typical day.

15th District Court: New Administrator

A second item related to the 15th District Court is an introduction of Shryl Samborn as the new administrator. Samborn is currently deputy administrator. Current administrator Keith Zeisloft is retiring after 12 years of service at the court. His last day of work for the court is March 28.

Samborn has worked in public service since 1998, starting with the Washtenaw County Clerk/Register of Deeds moving then to the 15th District Court in 2002. She began her work in the 15th District Court as secretary to judge Julie Creal, moving to be secretary for court administrator Keith Zeisloft in 2004. She became deputy court administrator in 2007. Her undergraduate degree is from Eastern Michigan University. She’ll be enrolling in the fall of 2014 as a graduate student in Michigan State University’s school of criminal justice judicial administration masters program.

Election Polling Places

At its March 17 meeting, the council will also be asked to approve the temporary relocation of Precinct 1-7 from the University of Michigan’s Pierpont Commons, 2101 Bonisteel, to Northwood Community Center (family housing), which is the location for Precinct 2-1. That relocation will be in effect for the May 6 vote on the transit millage and for the Aug. 5 primary elections.

The relocation is needed because Pierpont Commons will be unavailable due to renovations being undertaken by the University of Michigan to that facility.

The council’s resolution is needed only on the relocation for Aug. 5 – when the two precincts will operate separately but at the same Northwood Community Center location. The city election commission has the authority to consolidate the two locations – which it did for the May 6 election at its Feb. 26 meeting.

Map of Precincts 1-7 and 2-1.

Attachments

The online agenda for March 17 includes myriad reports and communications as attachments.

Attachments: Hash Bash

Among the items attached to the agenda as reports or communications is one from the city administrator noting that for the April 5, 2014 Hash Bash event on the University of Michigan campus, all the sidewalk occupancy permits and peddler’s licenses in the immediately surrounding area will be suspended.

The possibility of such suspension – which the city administrator’s memo indicates is motivated by a desire to relieve congestion – is part of the terms and conditions of such licenses. They’ve been suspended for Hash Bash for at least the last six years, according to the memo. Hash Bash is a gathering that focuses on reform of marijuana laws.

Map of area where peddler and sidewalk occupancy permits have been suspended for the April 5, 2014 Hash Bash.

Attachments: DDA Annual Reports

Also among the attachments are the Ann Arbor Downtown Development Authority’s annual reports for 2004, 2005, 2006 and 2007. Those reports have been the subject of back-and-forth between Stephen Kunselman (Ward 3) and The Ann Arbor Observer over a report in The Observer’s December edition. A follow-up to an initial correction by The Observer is anticipated in the April edition – establishing that Kunselman’s contention had been correct: Before 2011, the reports had not been filed with the governing body as required under state statute.

Street Closings

The March 17 agenda features a number of street closings for upcoming events. They appear on the consent agenda, which includes a group of items voted on “all in one go.” So unless a councilmember pulls out a consent agenda item for separate consideration, these items won’t be mentioned explicitly at the meeting.

Saturday, March 29, 2014: Sixth Annual Box Cart Race/Soap Box Derby. The event is sponsored by Phi Delta Theta Fraternity and Ann Arbor Active Against ALS to honor the legacy of their fraternity brother, Lou Gehrig, and to raise money for ALS research. All proceeds from the event will be donated to ALS research. Streets to be closed: South University from Oxford to Walnut; Linden from South University to Geddes.
Map of street closings for Sixth Annual Soap Box Derby.
Thursday, April 10, 2014: SpringFest. The sponsor, the University of Michigan-MUSIC Matters organization, is presenting a day of festivities to be capped off with a MUSIC Matters concert. The festivities will feature an assortment of student groups from the innovation, arts, sustainability, music and social justice communities on campus. Speakers will begin the program at 1 p.m. with live music featuring students and other local Ann Arbor talent to begin at 2:30 p.m. Streets to be closed: North University Street between Thayer and Fletcher Streets.
Map of street closings for SpringFest.
Sunday, May 4, 2014: Burns Park Run. Streets to be closed: Several streets in the Burns Park neighborhood.
Map of street closures associated with the Burns Park Run.
Monday, May 5, 2014: Ann Arbor Cinco de Mayo Party. The event is sponsored by Tios Restaurant to celebrate Cinco de Mayo. Streets to be closed: Liberty Street between Thompson and Division.
Map of street closures associated with Cinco de Mayo.
Saturday, June 1, 2014: Live on Washington. This is a youth-curated outdoor arts festival, featuring performances on a stage as well as more “interactive street art” like break dancing, puppetry, and mural art. It’s sponsored by the Neutral Zone. Streets to be closed: Washington Street between Fifth Avenue and Division.
Map of street closures associated with Live on Washington.
Sunday, June 1, 2014: Dexter-Ann Arbor Run. The Dexter-Ann Arbor race is sponsored by the Ann Arbor Track Club. Streets to be closed: Several downtown streets and surface parking lots.
Map of downtown street closings for Dexter-Ann Arbor Run.
Friday, June 14, 2014: Mayor’s Green Fair.
Map of street closings for Mayor’s Green Fair.

4:18 p.m. City staff responses to councilmember questions on the March 17 agenda items are now available: [responses to March 17, 2014 agenda questions]

4:58 p.m. Eight people are signed up for public commentary reserved time, all of them except one at least in part to talk about the surface of the underground Library Lane parking structure. Those signed up to talk about the future of the surface are Will Hathaway, Thomas Partridge (among other topics), Barbara Bach, Eric Lipson, Peter Allen, Ingrid Ault and Alan Haber. Signed up to talk about synagogue vigils at Beth Israel Congregation is Henry Herskovitz.

6:58 p.m. Councilmembers are starting to arrive. Jack Eaton (Ward 4) and Jane Lumm (Ward 2) are here. City attorney Stephen Postema and assistant city attorneys Abigail Elias and Mary Fales are here. The Hathaways have arrived, as has Peter Allen.

6:59 p.m. AADL director Josie Parker has arrived. Mayor John Hieftje is now here.

7:03 p.m. City administrator Steve Powers has made appropriate sartorial choices for St. Patrick’s Day: green tie and green shirt. Margie Teall (Ward 4) has a green jacket. Sumi Kailasapathy (Ward 1) is wearing a green sari. Eaton is wearing a green tie.

7:09 p.m. Call to order, moment of silence, pledge of allegiance. And we’re off.

7:10 p.m. Roll call of council. All councilmembers are present and correct except for Sally Petersen (Ward 2), who is spending her husband’s 50th birthday with him.

7:11 p.m. Approval of agenda.

7:11 p.m. Outcome: The council has voted to approve the agenda.

7:11 p.m. Public comment on the urban forestry management plan will be accepted through March 28, 2014. Curbside composting will be resuming at the end of March. Meetings on the Arbor rail station will be starting.

7:13 p.m. Shryl L. Samborn: New 15th District Court administrator. Samborn is currently deputy court administrator. Keith Zeisloft is retiring from the court administrator position, with his last day to be on March 28. Samborn has been deputy administrator since 2007 and has worked for the court since 2002. [For more background, see 15th District Court: New Administrator above.]

7:15 p.m. Keith Zeisloft is making the introduction in judge Libby Hines’ place. He says that on March 28, Samborn is going to be sworn in as the new court administrator. He calls her his good friend. She’s “very capable,” he says. “Council, this is Shryl. Shryl, this is council!”

7:15 p.m. Public commentary. This portion of the meeting offers 10 three-minute slots that can be reserved in advance. Preference is given to speakers who want to address the council on an agenda item. [Public commentary general time, with no sign-up required in advance, is offered at the end of the meeting.]

Eight people are signed up for public commentary reserved time, all of them except one at least in part to talk about the surface of the underground Library Lane parking structure. Those signed up to talk about the future of the surface are Will Hathaway, Thomas Partridge (among other topics), Barbara Bach, Eric Lipson, Peter Allen, Ingrid Ault and Alan Haber. Signed up to talk about synagogue vigils at Beth Israel Congregation is Henry Herskovitz. Added to the list was Rita Mitchell.

7:18 p.m. Will Hathaway is speaking on behalf of the Library Green Conservancy. He calls the resolution a modest proposal and a compromise. His group has met with many people, including urban planning professionals, he says. He calls it the next step in the public process. He says some concerns that have been expressed have been addressed in the revisions that have been made to the resolution. He contrasts an approach where a developer is in charge of the design and building of the public open space, compared to one where the community is in charge. He says the action tonight won’t flip a switch to create a park. This resolution encourages the park advisory commission to continue its effort, he says.

7:22 p.m. Thomas Partridge introduces himself as a recent candidate for the Michigan legislature and the city council. He’s calling the council’s attention to the situation in Ukraine. He calls it a valiant struggle for an independent democracy. He calls the planned urban park in a poor location, saying it’s polluted and congested with traffic. He raises the specter of a driver losing control of their vehicle and crashing into the open space.

7:25 p.m. Barbara Bach says that once the boundaries for a park have been defined, the planning can begin. She’s looking forward to the Ann Arbor District Library’s participation in the planning for the space. She describes a possible puppet stage among other possibilities. PAC’s planning process can begin after the boundaries are defined, she says. She asks the council to vote yes on the urban park resolution.

7:31 p.m. Former planning commissioner Eric Lipson says he’s a member of the Library Green Conservancy. He’s reviewing some of the history of the planning process, which dates back to the early 1990s. When he served on the city planning commission, the community engaged in the Calthorpe planning process. The outcome of that process was a designation of the entire Library Lot as a community gathering space, he says. Later, PAC came up with a recommendation for the area, he says. There have been concerns about panhandlers, he says. This park won’t cure or exacerbate that problem, he says. “This is the place. It’s about time we acted.” As far as “eyes on the park” go, Earthen Jar and Jerusalem Garden might serve that function, he ventures.

7:32 p.m. Peter Allen is educating councilmembers about the virtues of leasing versus selling. He tells them that they should not be selling land, but rather using very long-term leases. He says the Library Lot is worth more than the former Y lot.

7:35 p.m. Ingrid Ault introduces herself as the chair of PAC. She reiterates that PAC had some concerns with the first resolution and the revisions to the resolution don’t address them. PAC is opposed to moving forward with the development of a park until it’s clear how it will be paid for without jeopardizing the maintenance of the city’s other 157 parks. She draws an analogy to buying a wedding dress before even going out on a date. She says the resolution will place unnecessary restrictions on the process.

7:38 p.m. Alan Haber says he wants to speak on Stephen Kunselman’s resolution to sell the property. He says that the space should be designated as a park so that we can see what kind of financial support might grow up from the Ann Arbor Community Foundation and other sources. That seems like a no-brainer, Haber says, but quips, “I’m getting old, I’ve got problems.” He says that there’s been no opportunity to develop a commons in Ann Arbor, to let the public see how that central area can be developed as a community space. There’s no need to sell the land, he says. He says he has a list of five people in Ann Arbor who could finance a park.

7:41 p.m. Henry Herskovitz says the regular demonstrations outside Beth Israel have been criticized. But he’s addressing various points of that criticism made by Reverend James Rhodenheiser, Rector, St. Clare of Assisi Episcopal Church last year.

7:44 p.m. Rita Mitchell speaks in favor of the urban park resolution. She thanks the councilmembers who sponsored the resolution. She’s addressing the concerns about cost of maintenance. She says that concern doesn’t recognize the potential for private-public partnerships. A public gathering space will draw people to local businesses, she says. Residents of new 14-story buildings will also benefit from having access to open space. It will be their version of a backyard, she says. The city already owns the property, so there’s no acquisition costs, she says. She describes an underground parking structure in Boston with a park on top that has the slogan: Park below, Park above.

7:45 p.m. Communications from council. This is the first opportunity on the agenda for councilmembers to share matters they deem important.

7:46 p.m. Sabra Briere (Ward 1) says she’s going to bring forward a nomination for reappointments to the environmental commission: David Stead, Susan Hutton, and Kirk Westphal.

7:47 p.m. Mike Anglin (Ward 5) is reading aloud a letter from a constituent in favor of the urban park resolution. The letter is apparently from Mary Hathaway.

7:50 p.m. Communications from the mayor. Mayor John Hieftje is reading aloud several nominations to boards and commissions. They’ll be voted on at a future meeting.

7:50 p.m. Approval of council minutes. Outcome: The council has voted to approve the minutes of its previous meeting.

7:50 p.m. Consent agenda. This is a group of items that are deemed to be routine and are voted on “all in one go.” Contracts for less than $100,000 can be placed on the consent agenda. This meeting’s consent agenda includes:

CA-1 Lease golf carts from Pifer Inc., authorize sale of 32 carts ($50,336) [For more background, see Wheels: Golf Carts above.]
CA-2 Purchase police detective vehicle from Berger Chevrolet ($26,750) [For more background, see Wheels: Detective above.]
CA-3 Accept minutes of board of insurance administration minutes for Feb. 27, 2014
CA-4 Street Closing: Burns Park Run [For more background, see Street Closings above.]
CA-5 Street Closing: Cinco de Mayo at Tios
CA-6 Street Closing: Box Car Derby
CA-7 Street Closing: Mayor’s Green Fair
CA-8 Street Closing: Live on Washington
CA-9 Street Closing: Dexter-Ann Arbor Run
CA-10 Street Closing: Spring Fest
CA-11 Temporary polling place change: Precinct 1-7 to Northwood Community Center (Family Housing) [For more background, see Election Polling Places above.]

7:51 p.m. Councilmembers can opt to select out any items for separate consideration. Jane Lumm (Ward 2) wants to pull out the item on the board of insurance minutes.

7:52 p.m. CA-3 Accept minutes of board of insurance administration minutes for Feb. 27, 2014. Lumm says that they’re looking at separating out the approvals by amount.

7:53 p.m. Outcome: The consent agenda is now approved.

7:53 p.m. DC-1 Designating an urban public park location on the Library Lot site. This resolution was postponed from the council’s March 3 meeting. It would reserve a specific 12,000-square-foot portion of the top of the Library Lane parking structure as a public urban park. [For more background, see Top of Library Lane: Urban Public Park above.]

7:54 p.m. Jack Eaton (Ward 4) says that the “whereas” clauses go on for three pages. That reflects the long history of the issue. Our community has always given great support for parks, he notes. He points out that the parks millage was passed, but the library millage failed.

7:56 p.m. Eaton supports Hieftje’s idea of a string of parks that extend from Liberty Plaza to a greenway. He says this is a great place to start. The resolution doesn’t do a lot, he says. It draws some boundaries and sends the issue back to the park advisory commission (PAC). He imagines that PAC might return with basic options and ballpark cost estimates. He says that this resolution will refer the issue back to PAC for further consideration. He also says that having a new park will not affect homelessness. What we need to do is establish a day shelter and downtown foot patrols, he says.

7:58 p.m. Eaton says that a park designed with active uses is the key. During the development of the resolution, he’s met with various people and groups, including the library board. At some point the concerns amount to just not wanting a park downtown, he says. The sale of the eastern portion will require eight votes, he says. There won’t be eight votes without this resolution, he says. Having a private owner repudiates the whole idea of a public space, he says.

7:59 p.m. Sumi Kailasapathy (Ward 1) picks up where Eaton left off. For those who want a park, she notes, there are two visions: (1) a developer buys the land and it’s a privately held park for public use; or (2) a commons that is publicly held.

8:01 p.m. Kailasapathy says that you can’t attend a Democratic Party meeting without hearing people complain about Citizens United. She wonders if a private owner will allow anti-war demonstrations. Democracy can only survive when there are checks and balances on capitalism. A public space must be publicly owned, she says, not a private developer allowing us to use his space on his terms. On paper it seems like a free lunch, she says. But in effect it’s not going to be a public space.

8:03 p.m. Jane Lumm (Ward 2) thanks Eaton for his leadership. She says the Connecting William Street study recommended 5,000 square feet. This resolution recommends 12,000 square feet, which she compares to about the same size as Liberty Plaza. There’s been consistent support for public space on this site of about this size, she says. She says there’s an overwhelming consensus that this should be public space. The best way to do that is through city control, she says.

8:04 p.m. Lumm doesn’t agree that if you support an urban park here, then you’re against development. “That’s nonsense,” she says.

8:06 p.m. Lumm hopes everyone will support this resolution. Mike Anglin (Ward 5) says that if 100 spoke, there would be 100 different opinions. We solve problems in our town, we don’t just create them, he says. It’s our time to say: This will be our future, this is what we want our town to be. He’s thanking Haber and Hathaway. He’s also thanking mayor John Hieftje, who had attended a picnic on top of the parking structure.

8:08 p.m. Anglin is now talking about the problem of homelessness. “We don’t want a dead zone in our town,” he says. There is a dead zone around city hall at night, he says. The library is one of the best in the state, he says. The library’s leadership will take us to a future we can be proud of, he says. He notes that the new bus station has been constructed downtown. The addition of a park will bring more families downtown, he says. He ventures that dances could be held.

8:10 p.m. Anglin says the city is blessed that people are willing to come forward to help. Anglin reiterates Eaton’s point about there being four votes on the current council that would block any sale of land without the stipulation that there will be a publicly-owned park.

8:13 p.m. Hieftje is now inviting Josie Parker, AADL director, to address the council. She thanks those who have made positive comments about the quality of the library. There’s a lot of fiction in the library, she quips, but it’s not a fiction that it takes a lot of effort to manage a public space. She calls the library building a park within walls. It’s not about a label, but rather behavior, she says. Teenagers or a lot of crying babies can tip the balance in a public space.

8:15 p.m. Some of the most obnoxious behavior at the public library, she says, is by people who are well-housed and well off. She’s reading aloud a library board resolution passed tonight, urging the city council to reject the council resolution on establishing an urban park on top of the Library Lane parking structure. [The resolution was passed by the AADL board on a 6-1 vote, over dissent from Nancy Kaplan.]

8:18 p.m. Hieftje is now saying that there’s always been a plan for a park or public space or whatever you want to call it. He’s saying it could be privately owned and owned by the city, but maintained by the developer. There could be a development agreement stipulating that there would be political rallies there, just as in a public park. There are two ways to go, he says: developer-owned or city-owned.

8:19 p.m. Jim Chaconas, of Colliers International, is now being invited to the podium.

8:20 p.m. Hieftje asks what the impact of the real estate value would be if the frontage on the South Fifth Avenue were removed. Chaconas says it would be negative. You’d lose a couple million dollars of value, he says.

8:21 p.m. Eaton asks Chaconas to estimate the value of land: $6-7 million. Chaconas says that a park would be an asset to the building.

8:23 p.m. Kunselman says he doesn’t necessarily agree that the northwest portion needs to be retail. He’s describing the possibility of a building over that portion that would not block off access.

8:24 p.m. Kunselman and Chaconas are talking about how things have changed. Chaconas used to be in the beer business so he knows about restaurants, he says. He’s talking about creating a new “mid-town.” He calls Kunselman’s cantilevering idea a good one.

8:27 p.m. Lumm is now talking to Chaconas. She wants to know why it’s more difficult to build a building without constructing something on the northwest corner. The ability to go “street-to-street” had increased the Y lot deal by around $1 million, Chaconas says.

8:30 p.m. Chuck Warpehoski (Ward 5) is now asking Chaconas how eyes-on-the-site can be achieved with only development on the high-density portion of the site. Chaconas is comparing relative square footage costs for retail, office and residential.

8:32 p.m. Kunselman weighs in for his cantilevered building, by saying that now, when it rains at Sonic Lunch, everybody runs. [Sonic Lunch is a weekly summer concert series held in Liberty Plaza and sponsored by the Bank of Ann Arbor.]

8:32 p.m. Chaconas says deed restrictions can be put in.

8:34 p.m. Anglin says he’s not interested in this kind of discussion right now. Anglin says he wants to focus on what the public is paying for and what the public wants. If the public says they want it, they’ll support it. Downtown can’t be just restaurants and Disney style entertainment.

8:35 p.m. Chaconas says a lot of Google, PRIME Research and Barracuda employees are living in the new student high rises.

8:38 p.m. Sabra Briere (Ward 1) now proposes an amendment to the first “resolved clause.” It describes a public space, publicly owned, of at least 6,500 square feet, with the northern boundary to be determined at a future time.

8:39 p.m. Briere doesn’t like the idea of putting a box around the park and telling PAC to fill the box.

8:40 p.m. Her approach gives PAC room to be creative, she says. And it gives the city administrator flexibility in talking to prospective purchasers. The value of the land is not just a financial value, but a community value, she says.

8:41 p.m. Briere says she has a personal desire to see a park, but she doesn’t see a park as an entertainment venue. She’d love to see a play park, a place with water for kids to splash in or a place for kids to climb.

8:43 p.m. We’re now discussing Briere’s amendment. Anglin asks about the indefiniteness of her proposal. Briere explains that this would be determined by PAC.

8:44 p.m. Anglin says he hopes that people understand that what’s happening is an effort at compromise. A lot of compromises have been made already, he says. Teall says she appreciates the effort at compromise, but says she won’t support the amendment or the resolution as a whole.

8:46 p.m. Hieftje says he has a question for Briere. The background to his question includes the DTE property down by the Huron River. Hieftje says that he thinks that land should be owned by DTE with the ability of the city to use the land. Hieftje says he’s reluctant to make this parcel a publicly-owned parcel. He wants to know if that part of the resolution is important to Briere. She replies that it’s important to those who proposed the resolution.

8:48 p.m. Briere expresses skepticism that privately-owned spaces can be truly public without making people feel like intruders. She stresses that it will not be a very big space that will serve well as a gathering space, or a commons or a place for parades.

8:50 p.m. Christopher Taylor (Ward 3) says he’ll support the amendment because it will improve the resolution. But he says that the resolution is flawed and continues to have flaws. He’ll address those when the resolution is voted on.

8:53 p.m. Chuck Warpehoski (Ward 5) is asking whether the requirement for a vote on the sale of parkland would apply to the air rights cantilevered over the top of a public park. Based on remarks from planning manager Wendy Rampson and assistant city attorney Mary Fales, the transaction would be more complex than a fee simple arrangement. Rampson indicates that a condominium agreement would be a suitable kind of arrangement.

8:54 p.m. Kunselman ventures that Tally Hall is an example of a condominium arrangement.

8:56 p.m. Anglin is now talking to Rampson about condominium arrangements. He’s making sure that the parcel could, in fact, be a park.

8:59 p.m. Fales says if there’s development over the parking structure, then you would have ownership of the parking structure. The development would be one unit of the condo, she says, and the parking structure and the park would be another unit of the condo. Kunselman is explaining that there could be common areas in a condo arrangement, jointly owned, and gives Tally Hall as an example.

9:00 p.m. Kunselman says he doesn’t want it to be called a park, saying that the council was getting caught up in vocabulary. He wants to call it public space with no limitation on politics or music.

9:03 p.m. Lumm is skeptical that the maintenance costs would be all that great. The estimate per square foot for maintenance of an urban park is $1.20-$1.50, she says, which would be about $15,000 for this space. Kunselman appreciates the effort to compromise. He says we can get what everybody wants. He wants the full frontage of Fifth Avenue for public open space, which is why he wants the cantilevered portion. He points out that part of the point of the Library Lane mid-block cut-through was to be able to close it off for events. “Size is important,” he says. The three-side requirement is described by Kunselman as “bunk,” giving Sculpture Plaza as a counter example, he says.

9:05 p.m. Kunselman says the council would get flak for not doing it right, but he says, “It’s going to be really horrible if we don’t do anything at all.”

9:06 p.m. Kunselman floats the idea of postponing. He ventures that it would be an advantage to have Petersen at the table [she's absent]. Eaton wants to know if Kunselman would want to postpone the urban park resolution as well as the listing for sale. Kunselman’s answer: Yes.

9:08 p.m. Warpehoski says he’ll support the amendment. It’s important to get the northern boundary right, he says.

9:11 p.m. Lumm says that obviously she is in favor of declaring 12,000 square feet of open space. But she’s not sure if Briere would support the resolution if the amendment passes. She says she’s trying to count noses. Warpehoski says he wants to see the part about the parks and recreation open space (PROS) plan struck from the resolution, noting that the council doesn’t have the ability to unilaterally place a parcel in the PROS plan. With that part stricken and with the current amendment, he’d support the resolution.

9:12 p.m. Briere says she’ll remove the final sentence about establishing the space as a part of the PROS plan. Lumm, as the seconder of the amendment, agrees to accept that as “friendly.” Teall says she’s still concerned about the role of the Ann Arbor District Library.

9:13 p.m. Briere responds to Teall by saying that she doesn’t anticipate anyone at the library dealing with maintenance or programming of the space. She would never want to burden the library.

9:15 p.m. Teall says her concern is not that the library is being told to do anything. But the burden of having space next to the library that is unprogrammed will fall on the library regardless, she says.

9:18 p.m. Eaton is addressing the idea that a park would create a safety problem that does not already exist. When he sat down with the library board, they told him about someone who discovered a couple having sex in the underground parking structure stairwell. The idea that having a park will create a new problem is silly, Eaton says. Hieftje quips that in light of the problem Eaton described, perhaps a new downtown hotel was needed.

9:19 p.m. Kunselman says that there’s politics involved, and fear mongering by the library board about the problems that could result from having a public park.

9:19 p.m. Teall says there’s not fear mongering but rather people who know their business [library board] and who know it well.

9:25 p.m. Hieftje highlights the vocabulary of the “resolved clause” that Briere wants to amend: “urban public park.” Briere is now talking about what she meant. She means it to be interchangeable. Hieftje says the resolution has some promise, but he’s reluctant to give up the whole Fifth Avenue frontage. It’s important for the building to feel like it has an entrance onto Fifth, he says.

9:25 p.m. Outcome: The amendment passes with dissent from Kunselman, Teall, and Anglin.

9:25 p.m. Taylor now says he’ll vote against the resolution. The boundaries should be decided at the same time the rest of the location is designed. That would be critical to the success of the public space. He also gives significance to the library board’s resolution. PAC and the library board are against pre-answering the question, he says. If you have any sense of respect for those bodies, in his view there’s only one vote on this, and that’s no.

9:27 p.m. Taylor calls Kunselman’s description of the library board as “fear mongering” is a “shocking insult for which an apology is due.” The library board was weighing in in good faith based on knowledge and expertise, he says.

9:29 p.m. Lumm says it’s not collegial to suggest that adding 6,500 square feet to a public space shows disrespect to the library. The concerns Lumm heard were about the process, she said. So many experts have looked at this and analyzed this, Lumm says.

9:30 p.m. Lumm says if we don’t act now, we’ll likely see cars parked there years from now. Lumm is describing Centennial Park in Atlanta, which she visited when she attended a Final Four game years ago.

9:35 p.m. Warpehoski says the safety concerns had been described as “silly,” so he wants AADL director Josie Parker to come to the podium. He recalls her remark to him a year ago: “We’re all alone down there.” Parker says she doesn’t want to leave tonight appearing silly. The concerns about safety are not silly because the events that the library deals with are real. It’s important to consider what is reality now around that space, she says. She says the Ann Arbor police are called to the downtown library location every third day, and to Liberty Plaza every second day. There have been five heroin overdoses in the last three years, she says. It’s not about making a problem worse, she says, it’s just about acknowledging reality. Most of the issues are “drunk and disorderly.” Right now it’s almost every day, she says. “This is your downtown public library.” They have $250,000 in security costs – just for the downtown location.

9:36 p.m. Parker says, “I have to walk back down there from here, and I’m already worried about it.” You have heroin in your community and no one wants to talk about it. Heroin is being used in the public library, she says, and she doesn’t like talking about it in public.

9:38 p.m. Parker says, “We manage it, and you don’t know about it, and that makes it successful.”

9:40 p.m. Lumm asks if the DDA is aware of the situation. She recalls the council resolution asking the DDA to consider funding three downtown beat cops. The DDA had decided not to do that. Parker says that it’s not about policing, but rather about order, maintenance and management. When a patron is so drunk they don’t wake up or can’t walk out, that’s when the police are called, Parker says. She can’t speak for the DDA.

9:43 p.m. Warpehoski thanks Parker. He says when he brings his kids to the downtown location, he still feels like it’s a safe space. It’s not just about an added 5,000 square feet. Having a safe library is important and having a safe space outside the library is also important, he says.

9:46 p.m. Warpehoski says that at the last council meeting, he tried to make a joke and it came off as hurtful and he’d apologized. He now says that he thinks the dismissive comments about the library board merit an apology. Kunselman responds: “I will not be apologizing.”

9:50 p.m. Kunselman says he finds it insulting that the library board passed a resolution telling the council not to pass the resolution. He repeats his contention that the library board was fear mongering. He’d called out the library board, he says, and “That’s what I did – that’s what I do.” He adds: “That’s what I get elected for, to stand up …” for the people who will be using the public space, and let them enjoy their cigarette. [That's a pointed reference to Warpehoski's in-the-works ordinance to regulate outdoor smoking in some areas of public parks.]

9:51 p.m. Briere says that she won’t try to control bad behavior. [The reference is presumably dual – bad behavior in public spaces and bad behavior at the council table.]

9:52 p.m. Briere reviews the content of the resolution. She says that a cooperative spirit at the council table sometimes requires not getting upset when you don’t like what you hear from the other side.

9:54 p.m. Parks and recreation manager Colin Smith is called to the podium to comment. Teall asks him if he has any ideas about programming for the public space. He pauses before answering. He talks about the process that the staff would go through.

9:55 p.m. Teall wants to strike the part of the resolution that makes a request of community services and parks staff.

9:57 p.m. Smith returns to the podium at Eaton’s request. Eaton asks about cost.

10:00 p.m. Hieftje says he has a basic problem with the resolution. He describes Liberty Plaza as a shadow that hangs over the issue of parks. He says that he thinks the problems associated with Liberty Plaza will migrate to the new space. He wonders why the effort described in the resolution to ask staff to program the Library Lane space in the interim could not be directed to Liberty Plaza.

10:01 p.m. Eaton says that Liberty Plaza is believed by many in the homeless community to be a place where they can gather and not be rousted. The responsibility of having a day shelter has been implicitly placed on the library and that’s not right, he says.

10:02 p.m. Eaton says if there’s a heroin epidemic in town, we probably need some more police officers. He says we need to add park space downtown as we add residents and we also need to address the social consequences of increased density.

10:07 p.m. Briere says the council is going off on a tangent. Requesting that parks staff work to program active uses might result in one event in a year. She describes a possibility of an event where the city’s fire trucks and other heavy equipment were driven to the top of the parking structure and kids were allowed to climb all over them. She ventures that the cost would not be that great. But she allows that the language of the resolution talks about “encouraging” and that is not very specific. It takes time to develop a new program, she says.

10:09 p.m. Hieftje wants to move toward voting on Teall’s amendment. Teall says she likes the sentiment, but doesn’t think it’s fair to staff. Warpehoski says that he doesn’t think staff will be trying to put on a book fair, but rather will work to set policies on use for the space.

10:11 p.m. Warpehoski says he’ll support Teall’s amendment to give staff maximum flexibility.

10:11 p.m. Outcome: Teall’s amendment fails with support only from Teall, Warpehoski, Taylor, Briere and Hieftje.

10:12 p.m. Anglin says that everyone agrees that this should continue to be a process.

10:16 p.m. Taylor says that we entrust our parks to PAC. Commissioners were unequivocal about their opposition to this resolution, he says. The library board had also communicated its opposition to the resolution. That’s how boards should communicate with each other, he says. The council has no problem asking the state legislature to vote on matters affecting the city. So it’s proper for the library board to convey its view to the council, he says. Taylor will vote against it.

10:20 p.m. Kunselman says the resolution has brought out a lot of feeling in the community. Kunselman says that he’d met with members of the library board last Friday and that they had not given him a heads up that they’d be passing a resolution on this. Kunselman says everyone has to come together to get something out of this. He floats the idea that he might bring forth a resolution calling on the library to move its building on top of the parking structure. “Most of the people we think of as having bad behavior also ride the bus,” he notes. He talks about taking a first step. If the resolution on the broker also passes, then a purchaser will have some idea of what to expect. “I didn’t pour the water for this effort, but I’m helping to carry it,” Kunselman says.

10:21 p.m. Kailasapathy calls the resolution a baby step. She says she feels developers rule supreme. She doesn’t want to leave the future of the public space to a developer. She’s voting for it.

10:24 p.m. Warpehoski says he’ll vote for it. He rejects the idea that it’s the first step in the process. He recounts several other steps: PAC’s recommendation, Connecting William Street, the design of the parking structure itself. He can celebrate this step because it provides flexibility. It’s important that First Amendment rights be protected on that space. He points out that the Occupy Wall Street movement started in a privately owned public space.

10:27 p.m. Teall says it looks like it’s going to pass. She says that it’s been discussed many times. She’s concerned about moving forward at this pace at this point without a partner who will work and understand what the public would like to see there. She’s also concerned about programming the space. The cost also worries her, she says.

10:30 p.m. Briere now weighs in. She appreciates comments by Warpehoski and Teall. Everyone is working toward the same goal, she says. The question is what to do first. If the city is not clear about its expectations, the city can’t negotiate effectively, she says. It sets a minimum and a maximum. She doesn’t care as much as she should, she says, about the difference between public space, park and plaza. The resolution has been opened up a little bit more to give it flexibility for PAC, she says. A prospective developer should be talking with PAC and the council and trying to figure out the best way to work out how much land is available for public use so they can offer the best possible deal.

10:34 p.m. Briere says she’ll vote yes on this resolution, but is not sure if she’ll vote yes on the brokerage services issue. Teall points out that heroin use should not be equated with homelessness. Hieftje is now defending the city’s record on efforts to work on homelessness. He says that downtown does need more policing. He says if the three new police positions in the initial budget requests for FY 2015 are deployed in downtown, then that would have a positive impact. Hieftje rejects the idea that voting against this resolution means you’re against parks. He recounts his own efforts to expand the park system. He says he’ll vote against this resolution.

10:35 p.m. Hieftje said he’d hoped that the resolution could have been revised to the point where it won the support of PAC and the library board.

10:36 p.m. Hieftje says he’s concerned about the city’s ability to maintain this new space along with a new greenway.

10:38 p.m. Outcome: The council has voted to approve the amended resolution on reserving an area for a public urban park on top of the Library Lane underground parking structure. Dissenting on the 7-3 vote were Hieftje, Taylor and Teall. Petersen is absent.

10:39 p.m. Recess. We’re now in recess.

10:53 p.m. We’re back.

10:57 p.m. The council is going to deal with its closed session now instead of later.

10:57 p.m. Eaton declares that he’s supposed to disclose that he has a potential conflict of interest in the matter to be discussed in closed session. It’s the Yu v. City of Ann Arbor case. Eaton explains that he had accepted a nominal sum from an attorney in the Yu v. City of Ann Arbor case to create an attorney-client privileged relationship. That relationship ended before Eaton took office, he explains.

11:04 p.m. Closed session.

11:04 p.m. The council has emerged from closed session.

11:05 p.m. Briere says, “We’ve got the whole meeting in front of us!”

11:05 p.m. DC-2 Waive attorney-client privilege for Feb. 25, 2014 city attorney memo on property assessment. This item was postponed from the council’s March 3, 2014 meeting. It would waive privilege on a Feb. 25, 2014 memo from the city attorney explaining aspects of how tax assessment and appeals work. [For more background, see Tax Assessment above.]

11:06 p.m. Eaton explains that while campaigning he’d received questions on this issue. He reports that the city attorney, Stephen Postema, doesn’t have a problem with it. Briere has a question for Postema.

11:06 p.m. Briere says that in the past, the council has provided direction to craft an opinion that’s suitable for a public audience. Postema says that would be best practice. Briere asks Eaton if that would be all right with him. Eaton says that he sees no reason or purpose to it. There’s no risk to the city. Briere says her concern is for coherence.

11:11 p.m. Taylor agrees with Eaton’s concern about educating the public is appropriate. He says that directing the city attorney to provide a memo for public consumption would alter the nature of the advice the council would receive – if the city attorney had in the back of his mind that it might have privilege waived.

11:14 p.m. Anglin has some questions about what information will be attached.

11:14 p.m. Lumm doesn’t care how it’s done but wants to see the information provided to the public.

11:15 p.m. Eaton says he doesn’t see any purpose to it. He ventures that the outside bond counsel will not be going through the cosmetic procedure that the council is going through. He’ll opposed Taylor’s amendment.

11:17 p.m. Kunselman will support Taylor’s amendment. If there’s any information that’s different in the revised memo, the council can just come back and waive the privilege. If that makes the city staff comfortable, he’s willing to go along with that. Lumm reiterates her concern that the important thing is to get the information out, but understands Eaton’s point.

11:17 p.m. Outcome: The council has voted to direct the city attorney to prepare an advice memo for public consumption.

11:18 p.m. DC-3 Charitable gaming license for Pearls & Ivy Foundation Inc. Passage of the resolution will allow the Pearls & Ivy Foundation Inc. to hold a poker event at the Heidelberg, located at 215 N. Main Street.

11:18 p.m. Outcome: The council has voted to approve the charitable gaming license.

11:18 p.m. DC-4 Direct development of a commercial building energy benchmarking and disclosure ordinance. The resolution would direct the city’s energy commission and staff to convene a stakeholder work group, with the support of the city attorney’s office, to draft a commercial building energy benchmarking and disclosure ordinance. It’s an effort to help achieve goals in the city’s climate action plan. [For more background, see Energy: Resolution on Development of Energy Disclosure for Commercial Buildings above.]

11:18 p.m. Hieftje says the motivation is explained very well in the memo accompanying the resolution.

11:20 p.m. When companies were forced to report how much pollution was being put into the air and water, they started reducing how much pollution they produced, Hieftje says. He draws an analogy to this resolution.

11:23 p.m. Briere recalls the city’s sustainability guidelines. She says she likes looking at her monthly utility bills and comparing her energy use to her neighbors’. She likes the firm date and the fact that it’s a direction to the energy commission.

11:25 p.m. Lumm is reading aloud a prepared statement of opposition based on the amount of staff time it might require. She is concerned that those who would be impacted had not been contacted. She says that the premise is that building owners are not already aware of their energy costs. She can’t tell if she’d ultimately vote to support to support a resolution if it were developed.

11:26 p.m. Anglin says it’s a good way to proceed, but ventures that the private sector is well aware of its energy use. Anglin is more concerned about the fact that the city needs four more foresters. He ventures that someone would need to be hired to do this – which is the next resolution.

11:27 p.m. Hieftje says that the city, as municipal entity, makes up a small portion of the energy use in the city. So other sectors have to be engaged, he says.

11:30 p.m. Kunselman says he thinks that other model ordinances can be used. He doesn’t think it will be that time-consuming. He indicates he won’t necessarily support a hire of energy staff to accomplish this. Taylor says that it will be a benefit to the public. Lumm is reiterating the points she’s already made by reading aloud the staff responses to councilmember questions about agenda items.

11:32 p.m. Outcome: The council has voted to direct development of an energy disclosure ordinance on a 7-3 vote. Dissenting were Lumm, Eaton and Anglin.

11:32 p.m. DC-5 Recommend filling energy office staff position. The resolution would direct the city administrator to hire an additional staff member for the city’s energy office, bringing the total back to two people, according to the resolution. [For more background, see Energy: Resolution on Energy Office Staff above.]

11:34 p.m. Briere is offering an amendment that directs the city administrator to develop a plan for realizing the goals of the climate action plan, but not direct a staff hire. Briere says that she feels it’s inappropriate to determine staffing issues. The council is a policy-making body and the level of staffing to effectuate that policy is the city administrator’s responsibility, she says.

11:35 p.m. Lumm wants city administrator Steve Powers’ reaction to the amended resolution.

11:38 p.m. Powers says he doesn’t know if this effort will require an additional staff member. That will depend on the result of the report that this resolution directs. Lumm wants to know if an additional staff member will be required. Powers reiterates that this depends on the finding.

11:40 p.m. Kunselman ventures that the FY 2015 budget will not include the FTE that the original resolution called for. Powers says that it still might. Kunselman says that the council could then remove it from the budget. Powers allows that’s right.

11:44 p.m. Lumm is not comfortable with this because it seems like a commitment to more spending. She doesn’t like the idea of handling this kind of thing outside the ordinary budget process. She’s not comfortable with the lack of clarity, so she’s not comfortable. Warpehoski says he wants the city administrator’s report so that he can make that decision based on what’s in it.

11:45 p.m. Warpehoski weighs in for it.

11:46 p.m. Outcome: The council has voted 6-4 to direct the city administrator to present a plan to realize the goals of the sustainability plan. Dissenting were Kailasapathy, Lumm, Eaton and Anglin.

11:46 p.m. DC-6 Waive attorney-client privilege on Aug. 9, 2012 memo from the outside bond counsel. This resolution would waive attorney-client privilege on a document prepared by Dykema Gossett, city’s outside bond counsel. The Build America Bonds used to finance construction of the Library Lane project have private-use limitations on facilities constructed with financing from such bonds. The Dykema memo apparently analyzes those limitations with respect to Library Lane.[For more background, see Top of Library Lane: Bound Counsel above.]

11:48 p.m. Kunselman is giving background on the memo. It came back up when the audit committee reviewed the DDA audit. It would help answer some questions the public have, he says. He doesn’t think the city administrator, or the city attorney or the chief financial officer has a problem waiving privilege on the document.

11:51 p.m. Taylor makes a similar amendment to the previous one on attorney-client privilege. He doesn’t want subsequent attorney-client privileged information to have uncertainty about whether privilege would eventually be waived.

11:52 p.m. Briere doesn’t want the city attorney to rewrite the bond counsel’s advice memo. Assistant city attorney Abigail Elias says she thinks it would be appropriate to ask the city attorney to ask the outside bond counsel to prepare a memorandum.

11:57 p.m. The amendment is to direct the city attorney to ask outside bond counsel to prepare a memo that has the same information as the original memo.

11:57 p.m. Kailasapathy says she doesn’t see the point in having the document rewritten.

11:58 p.m. Kunselman says that the memo didn’t include some issue he wanted to be addressed. So if it’s going to be rewritten, there are things that he’d like to have included in the re-written memo.

12:01 a.m. Eaton says it’s a fiction that rewriting an opinion protects the city’s interests. An attorney whose advice changes based on whether that advice is made public is not an attorney you’d want to hire, he says. Taylor calls the gratuitous waiver of privilege unprofessional and doesn’t want the council to get a reputation for being unprofessional.

12:03 a.m. Lumm says it’s about transparency. She doesn’t see a legal reason not to make it public. Asking the bond counsel to rewrite something for no good reason.

12:03 a.m. Outcome: The amendment fails 4-6, with support only from Hieftje, Briere, Taylor and Teall.

12:06 a.m. Briere says that she voted for the amendment because she thinks the city attorney should be routinely directed to rewrite memos. She felt that the memo in question should never have been considered privileged in the first place.

12:06 a.m. Outcome: The council has voted to waive attorney-client privilege on the 2012 outside bond counsel memo, over dissent from Taylor, who does not insist on a roll-call vote.

12:06 a.m. DC-7 Banfield Bar & Grill liquor license: Withdraw objection and renew license. At its March 3, 2014 meeting the council voted to recommend withdrawal of Banfield Bar & Grill’s liquor license. That had been based on non-payment of taxes. No one appeared on Banfield’s behalf at a hearing on the matter. The taxes were subsequently paid. So this resolution withdraws the recommendation that the license not be renewed and instead recommends that it be renewed.

12:06 a.m. Outcome: The council has voted to recommend the renewal of Banfield’s liquor license.

12:07 a.m. Recess. We’re in recess.

12:17 a.m. We’re back.

12:17 a.m. DC-8 Direct city administrator to list surface of Library Lane parking structure for sale; retain real estate brokerage services. This resolution would direct the city administrator to obtain real estate brokerage services for the sale of right to develop the city-owned property on top of the Library Lane parking structure. [For more background, see Top of Library Lane: Brokerage Services above.]

12:20 a.m. Kunselman reviews the item. He points out that this is not a sale of the property. We’ve done a lot of talking and we’ve got a lot of ideas, he says, but we don’t have any money. He hopes for everyone’s support.

12:21 a.m. Briere is interested in finding a civic use of the property. So she wasn’t sure that “highest and best use” should be the criterion.

12:23 a.m. Kailasapathy says highest is not necessarily best use. Hieftje responds by saying that “highest and best use” is a real estate term. It’s a term of art that means that we want to get a good return for the taxpayers.

12:25 a.m. Kunselman says he’s willing to strike the phrase “highest and best use.” That appears to be accepted on a friendly basis.

12:28 a.m. Warpehoski says that the highest price is not the most important thing. “Let’s give this a try,” he says.

12:30 a.m. Lumm says she’s comfortable supporting this, given the passage of the urban park resolution.

12:31 a.m. Lumm says she’s seen the planning commission’s resolution and she thinks it might be too prescriptive. Now is a good time to move forward, she says. [.pdf of planning commission's resolution]

12:39 a.m. Eaton says he’s supporting this resolution because he sees it as direction to the city administrator to explore what’s possible. Taylor says he’ll be supporting this, because he’s excited about what we might find out. He’s excited about seeing this area of the city activated. He says that the level of detail that Dennis Dahlmann had provided for the Y lot would also be expected, if not more, for this parcel. Warpehoski and Lumm get some clarity about the previous resolution. Hieftje calls 415 W. Washington a piece of city-owned blight. He wants to use this resolution tonight as a template for other properties like 415 W. Washington.

12:41 a.m. Outcome: The council has voted 8-1 to direct the city administrator to list the Library Lot property for sale. Dissenting was Kailasapathy. Petersen was absent from the start of the meeting. Teall departed late in the meeting.

12:41 a.m. DS-1 Approve changes to bylaws of the Ann Arbor city planning commission. This item has been on the council’s agenda since last fall and repeatedly postponed as the planning commission considered additional changes to its bylaws. Three changes have been approved by the planning commission: (1) a change to the requirements on request for accommodations for people with a disability – from a day to two days in advance; (2) an outright prohibition against city councilmembers addressing the planning commission; and (3) a clarification that people can speak only once during a public hearing, even if that hearing is continued at a subsequent meeting. The planning commission adopted (2) and (3) at its Feb. 20, 2014 meeting, having previously adopted (1) last summer at its July 16, 2013. Tonight the only change in front of the council is (1), because the city attorney’s office “has suggested the wording of one of the amendments should be clarified before moving forward,” according to a city staff memo.

12:42 a.m. Briere gives the background. Eaton asks what would happen if the council waited until the other bylaws changes were approved. Briere says it wouldn’t be a problem.

12:42 a.m. Outcome: The council has voted to approve the changes to the planning commission bylaws.

12:42 a.m. DS-2 Approve a contract with the Washtenaw County sheriff’s office for weapons screening services in the Ann Arbor Justice Center for the 15th Judicial District Court ($160,000). The total amount of the contract reflects an amount of $26.24 per hour per court security officer. [For more background, see 15th District Court: Weapons Screening above.]

12:43 a.m. Outcome: The council has voted to approve the weapons screening contract.

12:44 a.m. DS-3 Accept easement for stormwater drainage facilities at 3500 Fox Hunt Drive. This is a standard easement.

12:44 a.m. Outcome: The council has voted to accept the easement for stormwater facilities.

12:45 a.m. DS-4 Purchase of two Forklifts ($55,268) This resolution will authorized the purchase of two Clark C30 forklifts for use at the city’s materials recovery facility (MRF) for a total of $55,268. [For more background, see Wheels: Forklifts above.]

12:46 a.m. Outcome: The council has voted to approve the purchase of two forklifts.

12:50 a.m. Public commentary. There’s no requirement to sign up in advance for this slot for public commentary.

12:54 a.m. Kai Petainen is addressing the council. He’s talking about Ann Arbor SPARK. He’s reading aloud from a dissatisfied participant in SPARK’s boot camp. Their marketing costs are increasing by 100%. He says that SPARK has just lost the pre-seed fund. He says he wants SPARK’s investment to go to local businesses.

Ed Vielmetti notes that the council is getting decade-old reports from the DDA attached to tonight’s agenda. He’s making a request that the city make its FOIA log a part of the city’s data catalog, making it not just a public document, but a published document.

12:56 a.m. Alan Haber expresses his total dissatisfaction with the passage of the resolution on the listing of the Library Lot for sale. He pounds the podium. None of the mayoral candidates on the council should be mayor, he says, because they should be people who speak for the people.

12:56 a.m. Adjournment. We are now adjourned. That’s all from the hard benches.

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

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March 17, 2014: Ann Arbor Council Preview

Dave Askins — Fri, 14 Mar 2014 16:06:37 +0000

Screenshot of Legistar – the city of Ann Arbor’s online agenda management system. Image links to the March 17, 2014 meeting agenda.

But related to that item is a new resolution that directs the city administrator to move toward listing for sale the development rights for the top of the parking structure. The urban park designation was postponed from the March 3, 2014 meeting in part to sync up its timing with this resolution, which is being brought forward by Stephen Kunselman (Ward 3).

Top of Library Lane

Top of Library Lane: Urban Park

Library Lane park proposal as presented to PAC on Feb. 25.

The proposal was also presented to the city’s park advisory commission, the week before the March 3 council meeting. For a detailed report of the PAC meeting of Feb. 25, 2014, see Chronicle coverage: “Concerns Voiced over Urban Park Proposal.”

One of the central points of friction over how to proceed is the question of who will own the space on which the publicly accessible space – a park or plaza – is placed.

Councilmembers who are open to the possibility that the publicly accessible facility could be privately owned are concerned about the cost of maintenance. The city’s costs for maintaining ~~Library~~ Liberty Plaza – an urban park located northeast of the proposed Library Lane public park – are about $13,000 a year. That doesn’t include the amount that First Martin Corp. expends for trash removal and other upkeep of Liberty Plaza. [Urban park cost estimates]

The memo accompanying the revised resolution describes the changes as follows:

Square Footage and Boundaries. The first resolved clause is modified to reflect the information we received from City staff regarding the dimensions of the area. A site plan from staff showed the accurate square footage of the area to be designated as urban park as approximately 12,000 square feet.

Encouragement of Creative Public Programming. The second resolved clause text is now clearer that the various City government offices and the DDA are being asked to give thought to how they can encourage other groups to reserve the space on the Library Lane structure and put on creative public events.

Integration of Park Design with Adjacent Development. The third resolved clause is an acknowledgement that the two spaces should be designed to complement each other and that the City will play a leadership role in making that integration occur.

Activation of the Public Park through Integration with the Block. The fourth resolved clause acknowledges the necessity for the City to work with all the neighboring property owners on the Library Block in order to achieve the pedestrian connectivity that will result in vital, attractive public spaces. The text has been modified to clarify that reorientation need not entail major redevelopment.

Process for Creation of the Public Park and Development of the Remaining Library Lane Site. The resolved clauses that spelled out specific next steps have been removed from the resolution. The assumption now is that these respective City government bodies will move forward autonomously to accomplish these tasks.

An additional point of friction involves how much of the site would be left for development if the northwest corner of the site is devoted to a public plaza/park. Related to that issue is whether the existing northern border of the site – which currently features the sides and backs of buildings – can adequately support a public plaza/park. The fact that the site does not currently enjoy other surrounding buildings that turn toward it is part of the reason advocates for a park are now asking that the Ann Arbor District Library, located to the south of the site, relocate its entrance from Fifth Avenue to the north side of its building.

City staff diagram illustrating the building possibilities for the top of the underground Library Lane parking structure.

Top of Library Lane: Brokerage Services

The urban park designation was postponed from the March 3, 2014 meeting in part to synch up its timing with this resolution, which is being brought forward by Stephen Kunselman (Ward 3).

This approach would be similar to the path the city council took to sell the former Y lot. For that parcel, the council directed the city administrator to move toward hiring a real estate broker to test the market for development rights . The council took the initial step with that property, located on William between Fourth and Fifth avenues in downtown Ann Arbor, close to a year ago at its March 4, 2013 meeting. The council gave final approval to the sale – to hotelier Dennis Dahlmann for $5.25 million – on Nov. 28, 2013. That sale is now set to close on April 2, according to city administrator Steve Powers, who responded on March 12 to an emailed query from The Chronicle.

A rider agreement – to ensure against non-development and to sketch out the amount of open space and density – was part of the approach the city took to the former Y lot deal with Dahlmann.

Top of Library Lane: Bond Counsel

In broad strokes, the American Recovery and Reinvestment Act (ARRA) of 2009 – also known as the stimulus act – created the Build America Bond program. BAB authorized state and local governments to issue taxable bonds to finance any capital expenditures for which they otherwise could issue tax-exempt governmental bonds. The bonds have a limitation related to how the facilities financed through such bonds can be used. Glossing over details, only up to 10% of a facility financed through BAB can be dedicated to private use.

All other things being equal, the Ann Arbor DDA does not contract with businesses for monthly permits. Instead, the DDA contracts with individuals on a first-come-first-serve basis.

For the Library Lane structure, the DDA offered introductory pricing of its monthly permits to encourage the structure’s initial use. And the nature of that introductory pricing scheme could prompt questions about whether some of those permits might properly count as “private use” of the structure. A $95 introductory rate (which reflects a $50 savings over most other structures) was offered to employees of “new to downtown businesses” and to permit holders in the Maynard or Liberty Square parking structures who were willing to transfer their permit to Library Lane. The pricing is good through August 2014.

In a July 13, 2012 email to Ward 2 councilmember Jane Lumm, DDA executive director Susan Pollay wrote in part:

I met with the two key individuals directing the Ann Arbor Barracuda office and told them point blank, that that there will be parking for Barracuda employees now when they move to downtown, and as they grow their employee ranks over the next few years.

Four years ago, Wayne State University professor of law Noah Hall, writing on behalf of the Great Lakes Environmental Law Center (GLELC), sent the city of Ann Arbor a letter on the BAB private use issue. [For more detail, see his letter: April 14, 2010 letter from Noah Hall] GLELC was a party to a lawsuit filed over the Library Lane parking structure, which eventually was settled.

The document for which the council might vote to waive attorney-client privilege on March 17 appears to be one of the items denied in a response to a request made by The Chronicle under Michigan’s Freedom of Information Act. The item not provided to The Chronicle was a file attached to an email sent by CFO Tom Crawford on August 13, 2012 to councilmembers – named “BHO 1-# 1607254-v8-Ann_Arbor _ -_Memo_re_Permitted_Parking_Arrangements.docx” The request for that document was denied based on the statutory exemption allowed for items protected under attorney-client privilege.

Tax Assessment

The memo may help explain how one section of Michigan’s General Property Tax Act is properly interpreted and applied:

211.30c Reduced amount as basis for calculating assessed value or taxable value in succeeding year; applicability of section. Sec. 30c. (1) If a taxpayer has the assessed value or taxable value reduced on his or her property as a result of a protest to the board of review under section 30, the assessor shall use that reduced amount as the basis for calculating the assessment in the immediately succeeding year. However, the taxable value of that property in a tax year immediately succeeding a transfer of ownership of that property is that property’s state equalized valuation in the year following the transfer as calculated under this section.

Also related to the issue of tax assessment, the March 17 agenda includes an attachment of a report sent to the state tax commission by city assessor David Petrak, explaining how the city has complied with various deficiencies in documentation identified previously by the commission. Among the notes in the letter was an issue that’s become a routine point of public commentary for Ann Arbor resident Ed Vielmetti – the timely filing of meeting minutes by various boards and commissions. From Petrak’s report to the tax commission:

Concern #2: Board of Review prepared minutes were not filed with the local unit clerk
Response: On February 18th 2014 the Board of Review minutes were officially filed with and recorded by The City Clerk. Staff will insure all future minutes are similarly recorded in a timely fashion.

Energy

The council will be considering two items related to energy issues: (1) a resolution directing the drafting of an ordinance; and (2) a resolution calling for a staff position to be filled.

Energy: Resolution on Development of Energy Disclosure for Commercial Buildings

Energy: Resolution on Energy Office Staff

The second energy-related item on the March 17 city council agenda is a resolution that would direct the city administrator to hire an additional staff member for the city’s energy office, bringing the total back to two people, according to the resolution.

Wheels

Wheels: Forklifts

The council will be asked to approve the purchase of two Clark C30 forklifts for use at the city’s materials recovery facility (MRF) for a total of $55,268.

Wheels: Detective

Wheels: Golf Carts

15th District Court

The 15th District Court, which is the responsibility of the city of Ann Arbor, is featured in two agenda items.

Election Polling Places

At its March 17 meeting, the council will also be asked to approve the temporary relocation of Precinct 1-7 from Pierpont Commons, 2101 Bonisteel, to Northwood Community Center (family housing), which is the location for Precinct 2-1. That relocation will be in effect for the May 6 vote on the transit millage and for the Aug. 5 primary elections.

The relocation is needed because Pierpont Commons will be unavailable due to renovations being undertaken by the University of Michigan to that facility.

Map of Precincts 1-7 and 2-1.

Attachments

The online agenda for March 17 includes myriad reports and communications as attachments.

Attachments: Hash Bash

Map of area where peddler and sidewalk occupancy permits have been suspended for the April 5, 2014 Hash Bash.

Attachments: DDA Annual Reports

Also among the attachments are the Ann Arbor Downtown Development Authority’s annual reports for 2004, 2005, 2006 and 2007. Those reports have been the subject of back-and-forth between Stephen Kunselman (Ward 3) and The Ann Arbor Observer over a report in The Observer’s December edition. A follow-up to an initial correction by The Observer is anticipated in the April edition – establishing that Kunselman’s contention had been correct: Before 2011, the reports had not been filed with the governing body as required under state statute.

Street Closings

Saturday, March 29, 2014: Sixth Annual Box Cart Race/Soap Box Derby. The event is sponsored by Phi Delta Theta Fraternity and Ann Arbor Active Against ALS to honor the legacy of their fraternity brother, Lou Gehrig, and to raise money for ALS research. All proceeds from the event will be donated to ALS research. Streets to be closed: South University from Oxford to Walnut; Linden from South University to Geddes.
Map of street closings for Sixth Annual Soap Box Derby.
Thursday, April 10, 2014: SpringFest. The sponsor, the University of Michigan-MUSIC Matters organization, is presenting a day of festivities to be capped off with a MUSIC Matters concert. The festivities will feature an assortment of student groups from the innovation, arts, sustainability, music and social justice communities on campus. Speakers will begin the program at 1 p.m. with live music featuring students and other local Ann Arbor talent to begin at 2:30 p.m. Streets to be closed: North University Street between Thayer and Fletcher Streets.
Map of street closings for SpringFest.
Sunday, May 4, 2014: Burns Park Run. Streets to be closed: Several streets in the Burns Park neighborhood.
Map of street closures associated with the Burns Park Run.
Tuesday, May 6, 2014: Ann Arbor Cinco de Mayo Party. The event is sponsored by Tios Restaurant to celebrate Cinco de Mayo. Streets to be closed: Liberty Street between Thompson and Division.
Map of street closures associated with Cinco de Mayo.
Saturday, June 1, 2014: Live on Washington. This is a youth-curated outdoor arts festival, featuring performances on a stage as well as more “interactive street art” like break dancing, puppetry, and mural art. It’s sponsored by the Neutral Zone. Streets to be closed: Washington Street between Fifth Avenue and Division.
Map of street closures associated with Live on Washington.
Sunday, June 1, 2014: Dexter-Ann Arbor Run. The Dexter-Ann Arbor race is sponsored by the Ann Arbor Track Club. Streets to be closed: Several downtown streets and surface parking lots.
Map of downtown street closings for Dexter-Ann Arbor Run.
Friday, June 14, 2013: Mayor’s Green Fair.
Map of street closings for Mayor’s Green Fair.

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Oct. 7, 2013 Ann Arbor Council: Final

Dave Askins — Mon, 07 Oct 2013 00:13:23 +0000

At least two topics on the council’s Oct. 7 agenda could offer potential points of friction: (1) leftover controversy from the confirmation of Al McWilliams to the board of the Ann Arbor Downtown Development Authority at the council’s previous meeting on Sept. 16; and (2) adoption of an update to the city’s solid waste plan.

The sign on the door to the Ann Arbor city council chamber, installed in the summer of 2013, includes Braille.

A resolution added to the agenda on Friday, Oct. 4 would, if approved, result in the waiver of attorney-client privilege with respect to a specific advice memo that has already been written by the city attorney’s office on the McWilliams appointment.

The memo responds to questions that were raised about the procedure used to appoint McWilliams to the DDA board. Mayor John Hieftje had asked the council to vote on McWilliams’ appointment after saying at a previous meeting that he was withdrawing the nomination. Under the council’s rules, an 8-vote majority is required for confirmation of an appointment when the nomination is made at the same meeting when the confirmation vote is taken. McWilliams was confirmed on a 6-5 vote.

It’s also possible that a motion could be put forward to reconsider McWilliams’ confirmation, in order to eliminate the procedural controversy. However, by the end of the weekend before the meeting, no such item had been added to the agenda.

The council will also be asked to adopt an update to its solid waste plan. [Waste Less: City of Ann Arbor Solid Waste Resource Plan] [Appendices to Waste Less] The update proposes a number of initiatives, including goals for increased recycling/diversion rates – both generally and for apartment buildings in particular. A pilot program would add all plate scrapings to the list of materials that can be placed in the brown carts used to collect compostable matter.

And if that pilot program is successful, the plan calls for exploring the possibility of reducing the frequency of curbside pickup – from the current weekly regime to a less frequent schedule. Also included in the draft plan is a proposal to relocate and upgrade the drop-off station at Platt and Ellsworth. The implementation of a fee for single-use bags at retail outlets is also part of the plan. [Previous Chronicle coverage: "Waste as Resource: Ann Arbor's Five-Year Plan."]

The solid waste plan update could face opposition from some councilmembers who don’t think it would be feasible or desirable to reduce the frequency of curbside trash pickup to once every two weeks.

The council will be asked to give initial consideration to a new definition of a sidewalk, covering so-called cross-lot walkways. Such walkways aren’t really on the “side” of anything. They connect a street to a park or school, or two parallel streets. The item had been up for final consideration at the council’s July 1, 2013 meeting, but it was postponed until Oct. 7.

In the meantime, the city’s approach to the cross-lot walkways has changed. Currently if an existing walkway meets the definition of a “sidewalk,” then the city bears responsibility for its repair for the duration of the sidewalk repair millage. All other things being equal, the adjacent property owner would be responsible for snow removal in the winter. The new approach, to be considered on Oct. 7, would allow the cross-lot walkways to qualify as sidewalks under the city’s ordinance, but not trigger a winter maintenance requirement for adjacent property owners. This fresh look would mean that any action taken on Oct. 7 would be considered only an initial approval of the ordinance change.

Land use is on the agenda in the form of two developments and one annexation.

Returning to the council’s agenda is the planned unit development (PUD) zoning for the Shell/Tim Hortons at the northeast corner of Ann Arbor-Saline Road and Eisenhower Parkway. The proposal for the 1.44-acre site would allow for a drive-thru restaurant within the existing convenience store, where a Tim Hortons is already located. The project includes constructing a 109-square-foot drive-thru window addition and access driveway on the north side of the building.

The council had given initial approval for changes to the project’s PUD supplemental regulations at its Sept. 3, 2013 meeting. That’s when Chuck Warpehoski (Ward 5) objected to including the drive-thru as a public benefit in the regulations: “To say that somebody now doesn’t have to spend the 10 extra calories between getting out of their car to get their salt-sugar-fat fix?! I don’t see that as a public benefit and I don’t want us to list that as some big thing that we’re modifying our zoning for in our ordinance.” On that occasion, the council modified the PUD regulations to accommodate his objection. The final approval of the PUD zoning as well as the site plan is on the council’s Oct. 7 agenda.

Councilmembers will also be asked to approve a site plan for Belle Tire on the north side of Ellsworth, adjacent to and east of a different Tim Hortons – one that’s located near the intersection with South State. The currently vacant 1-acre site will become a one-story, 9,735-square-foot auto service facility with 49 parking spaces, including 10 spaces located in service bays.

The council will also be asked to vote on a standard annexation from Ann Arbor Township to the city of Ann Arbor – a 0.39-acre site at 2640 Miller Ave.

Also on the Oct. 7 agenda is an item to approve a change to fees associated with liquor licenses. Some fees are being eliminated – those related to licenses for which the state of Michigan doesn’t require local review.

Other Oct. 7 agenda highlights include an allocation for more traffic calming studies and a resolution that would direct the city administrator to apply for a Rockefeller Foundation grant to make Ann Arbor one of 100 Resilient Cities.

More details on other meeting agenda items are available on the city’s Legistar system. Readers can also follow the live meeting proceedings on Channel 16, streamed online by Community Television Network. The Chronicle will be filing live updates from city council chambers during the meeting, published in this article “below the fold.” The meeting is scheduled to start at 7 p.m.

6:38 p.m. Pre-meeting activity. The scheduled meeting start is 7 p.m. Most evenings the actual starting time is between 7:10 p.m. and 7:15 p.m. A handful of members of the public are here who are not usual suspects: “It looks bigger on TV, doesn’t it.”

6:51 p.m. About 20 people here now. Taxicab board member Michael Benson is here, as is Jack Eaton, who is the Democratic Party nominee in Ward 4, unopposed on the Nov. 5 ballot.

6:56 p.m. City administrator Steve Powers has been in and out of council chambers since about 6:30 p.m. Peter Eckstein is here. Councilmembers have started to arrive: Jane Lumm (Ward 2), and Sumi Kailasapathy (Ward 1). Jeff Hayner, Ward 1 independent city council candidate, is also here. He has his motorcycle helmet in hand.

7:03 p.m. Mike Anglin (Ward 5) has arrived. Still missing several councilmembers. Sally Petersen (Ward 2) and Christopher Taylor (Ward 3) are not expected to attend. Sabra Briere (Ward 1) has now arrived.

7:11 p.m. And we’re off.

7:13 p.m. Only eight councilmembers are present. Christopher Taylor (Ward 3) and Sally Petersen (Ward 2) are attending the International Downtown Association conference in New York City, which runs Oct. 6-9. A contingent of Ann Arbor Downtown Development Authority board members is also attending the conference. The Chronicle has not yet received a response from the DDA about which, if any, conference and travel costs are being covered by the DDA. City administrator Steve Powers responded with requested information about the council’s travel budget: $6,500 was budgeted for FY 2014 with $0 used to date. Marcia Higgins (Ward 4) is also absent.

[Added on Oct. 8, 2013: Petersen responded to a Chronicle emailed inquiry by saying that the DDA is paying for her conference registration, but she is paying for her own airfare, hotel, meals, etc.]

7:16 p.m. Communications from the city administrator. Steve Powers announces an Oct. 8 meeting on WALLY station locations at 7 p.m. at the Ann Arbor Community Center. He also reports that tree removal has begun. Trees to be removed have been painted with a green dot. The report on University of Michigan football game street closures is now available, Powers says.

7:17 p.m. The report on football game day street closures has been attached to the agenda. [.pdf of UM football street closures report] Police chief John Seto gave a preliminary oral report at the council’s Sept. 16, 2013 meeting.

7:17 p.m. Proclamations. The Concordia University football team is being recognized for volunteering in the Ann Arbor parks – specifically for participating in the city’s adopt-a-facility at Fuller Park pool.

7:17 p.m. Public commentary. This portion of the meeting offers 10 three-minute slots that can be reserved in advance. Preference is given to speakers who want to address the council on an agenda item. [Public commentary general time, with no sign-up required in advance, is offered at the end of the meeting.]

All 10 slots have been reserved tonight, including two alternates. Thomas Partridge is signed up to promote his write-in candidacy for the Ward 5 city council seat and to call for the replacement of mayor John Hieftje, Gov. Rick Snyder and U.S. House speaker John Boehner. Signed up to speak on the amendment to the current fiscal year budget for traffic calming studies ($55,000) are: Diane Kreger, James Billingslea, Alissa Ruelle, Sheila Henley, Zoltan Jung, Lisa Richardson, and Ana Morgan (alternate). Signed up to speak on the resolution to waive attorney-client privilege are: Jeff Hayner, Peter Zetlin, Mary Underwood, and Rita Mitchell (alternate).

7:21 p.m. Diane Kreger is addressing the council. She loves living in Ann Arbor. She loves her neighborhood. She’s lived on Northside for many years, but she’s concerned about the lack of traffic calming. She calls it a “recipe for disaster.” She describes a situation where a car had come whipping down the street and almost hit a little girl. She reads a statement from a 10-year old girl, Ana Morgan, who writes that she’s not allowed to play in the front yard because the cars go faster than the 25 mph speed limit and there are no sidewalks. “Please help make my street safer for everyone,” the statement concludes.

7:25 p.m. James Billingslea notes that the traffic calming item has six of the 10 speaking slots. He says that there would have been more people who would have come to address the council, except for the limit on reserved slots. He stresses that these measures are not luxuries. He describes several of the specific locations where there are problems. He lives on Northside. It’s a short street, with 20 houses, eight of which have young children. He describes how cars often have taken out mailboxes or the stop sign. A short 25 mph street shouldn’t have to endure that, he says. There’s a blind rise and a blind corner, he says. Without the budget amendment, it would be 2017 before traffic calming measures would be implemented, he notes.

7:28 p.m. Jeff Hayner reads from the New York City charter, Chapter 68, on conflicts of interest. He asked why the council has no conflict of interest policy, citing the deliberations on Al McWilliams’ appointment to the Ann Arbor Downtown Development Authority. He says we can’t trust the national or the state government, or now the local government to make good appointments. It’s important to choose carefully. He said he’d asked to be appointed to the North Main Street Huron River task force, and the reply he’d received from Sabra Briere (Ward 1) indicated that the members of that task force had been pre-selected before the task force had been established.

7:31 p.m. Tom Partridge is now at the podium. He’s asking for write-in votes for the Ward 5 council seat. He’s a declared write-in candidate. He calls for a new attitude in Ann Arbor, one that’s family-friendly. The number of speakers in favor of traffic calming is a testament to the problem with the socio-economic environment, Partridge says. He calls for the end of crime and corruption. He calls for the replacement of mayor John Hieftje, Gov. Rick Snyder, and U.S. House speaker John Boehner. Ann Arbor and its families and college students suffer without a respectful set of attitudes, he says. Partridge calls for building affordable housing and ending homelessness in Ann Arbor.

7:34 p.m. Peter Zetlin is talking about community values related to Al McWilliams’ appointment to the DDA board. He’d looked at McWilliams’ blog and seen images of women that objectified them. He invites councilmembers to think about if the images had related to race or religion. If the images were appropriate, he asks, why did McWilliams take them down? He says McWilliams is immature. He alludes to the recommendation by Maura Thomson of McWilliams. Thomson, who’s executive director of the Main Street Area Association, declined to answer his question to her, he says: Did she still support McWilliams? Zetlin’s remarks get a smattering of applause.

7:37 p.m. Alissa Ruelle is representing residents who live on Pomona, a street that runs north-south from the water treatment facility down to Miller. Newport is a main road, but Pomona is a secondary road. Pomona winds downhill and has only one stop sign. Cars drive very fast down Pomona, she says. The neighborhood had petitioned back in 2009 for traffic calming measures. Her understanding is that the traffic calming measures are supposed to be implemented next year. Regarding the children who live on the street, she said she didn’t want their young mistakes to be their last mistakes. Residents are looking forward to traffic calming measures. Her remarks generate applause.

7:38 p.m. Sheila Henley is also representing Pomona. There are definitely kids in the neighborhood, she says. Her mother is 78 and there are Alzheimer patients. She signed the petition back in 2005, she said. She definitely supports the resolution. More applause.

7:41 p.m. Mary Underwood says that after all the “brouhaha” about the McWilliams appointment, she decided to look at his blog. She calls it third-grade level potty humor. She’s embarrassed for the mayor, the council, and downtown merchants. She questions the ability of McWilliams to exercise good judgment. She asks if he was the best candidate that could be found to represent the city. She refers to a phrase that she attributes to McWilliams about an ice cream promotion: “Hey everybody, don’t forget to shove an ice cream cone up your ass.”

7:43 p.m. Zoltan Jung is speaking on behalf of the Northside neighborhood in support of traffic calming measures. He characterizes the demographics as a bimodal distribution of very old and very young. Our kids run and play on this street, he says. Cars bounce off the neighbor’s tree and wind up in his yard, he reports.

7:46 p.m. Lisa Richardson lives on Wells, seven houses from Packard and Burns Park Elementary. Drivers routinely speed down the street, using it as a cut-through. Someone is going to be injured or killed, she says. Fourteen small children live on the street, she says. No one stops at the three-way stop, she says. When drivers turn onto Wells, they “gun it” to get to Packard, in order to make the light, Richardson reports. A traffic study was completed in 2010, she said, but it’s not scheduled for implementation until 2016. The city knows that a dangerous situation exists and results in liability for the city. The reaction time of drivers doesn’t allow them to react if they’re speeding. She thinks the city needs to look at speeding on all the city’s roads. Lots of applause follows her commentary.

7:46 p.m. Council communications. This is the first of three slots on the agenda for council communications. It’s a time when councilmembers can report out from boards, commissions and task forces on which they serve. They can also alert their colleagues to proposals they might be bringing forward in the near future.

7:49 p.m. Sabra Briere (Ward 1) responds to Jeff Hayner’s remarks during public commentary about the task force appointments. Often a task force is appointed the same night they are established, she says. When the North Main Huron River task force was established, many people stepped forward and asked that additional seats be added. They’d tried to make the process open and transparent. Many of the non-members of the task force had attended meetings and helped the process.

Briere also reports that a public meeting will take place on Wednesday, Oct. 9 at 6:30 p.m. at Clague Middle School about the intersection of Dhu Varren, Green and Nixon roads. She also notes that she attended the Michigan Association of Planning conference in Kalamazoo the previous weekend.

7:52 p.m. Jane Lumm (Ward 2) is talking about the crosswalk ordinance and the possibility of repealing the city’s ordinance and replacing it with the uniform vehicle code. It sounds like that proposal will be coming forward at a future meeting. On the topic of education about crosswalk safety, Lumm says there’s the possibility about posting signs for bicyclists to educate them about how to approach crosswalks. This is appropriate in the context of launching a bike sharing program next spring, she says. She wants the signs placed first at the busiest crosswalks. She also thanks city administrator Steve Powers for the announcement about tree removal.

7:54 p.m. Mike Anglin (Ward 5) says that as the city has less money, residents will come forward about public safety, health and welfare issues. He says that signs could work as traffic calming devices. He also suggests that concrete barriers be placed on streets. “Drivers will not go through impediments,” he says.

7:55 p.m. Appointments. The council will be asked to vote tonight on nominations that were made at the Sept. 16, 2013 meeting. Those include Brock Hastie to the employees’ retirement system board of trustees. That’s a re-appointment. Being appointed to the city’s energy commission tonight are Erik Eibert (replacing Cliff Williams), and Elizabeth Gibbons (replacing Josh Long). Being appointed to fill a vacancy on the housing and human services advisory board is Kyle Hunter, and to fill a vacancy on the recreation advisory commission is Katie Lewit.

7:57 p.m. There’s back and forth between Anglin and Hieftje on the nomination of Wayne Appleyard to the city’s energy commission. Appleyard’s nomination was not moved tonight, Hieftje says. Anglin responds that he doesn’t think it’s necessary to recruit people who don’t live in the city. Appleyard is not a city resident. Hieftje is now saying that he will probably bring the nomination forward at a later time.

7:59 p.m. Appleyard’s confirmation, as a non-city resident, would have needed seven votes, which he would likely not have received, given the short-handed council tonight. From the city charter: [emphasis added]:

Section 12.2. Except as otherwise provided in this charter, a person is eligible to hold a City office if the person has been a registered elector of the City, or of territory annexed to the City or both, and, in the case of a Council Member, a resident of the ward from which elected, for at least one year immediately preceding election or appointment. This requirement may be waived as to appointive officers by resolution concurred in by not less than seven members of the Council.

Appleyard lives in Grass Lake, Mich., according to the nomination information. The city energy commission was established in 1985 by a council resolution to “oversee City policies and regulations in areas of energy efficiency concerns and make periodic public reports and recommendations to the City Council.” Under special qualifications, the online Legistar description states: “wide spread representation; interest in energy.”

Appleyard has served on the energy commission since 2002. Terms of appointment for energy commissioners are three years. When Appleyard was up for reappointment in 2010, no objections were raised. Hieftje separated out Appleyard’s confirmation for a separate vote at that time to ensure it was clear that he’d specifically received adequate support from the council, despite not being a city resident. Appleyard is principal with Sunstructures Architects, with a focus in renewable energy and sustainable architecture.

7:59 p.m. Public hearings. All the public hearings are grouped together during this section of the meeting. Action on the related items comes later in the meeting.

Five public hearings are scheduled tonight. Separate public hearings are being held for PUD (planned unit development) zoning and site plan for the Shell/Tim Hortons at the northeast corner of Ann Arbor-Saline Road and Eisenhower Parkway. The changes to the PUD supplemental regulations on the 1.44-acre site would allow for a drive-thru restaurant within the existing convenience store, where a Tim Hortons is already located. The project includes constructing a 109-square-foot drive-thru window addition and access driveway on the north side of the building.

The third public hearing is on a site plan for Belle Tire. The 1-acre site – currently vacant – is on the north side of Ellsworth, adjacent to and east of a new Tim Hortons. That’s a different Tim Hortons from the one that’s the subject of the Shell station PUD. The Belle Tire proposal calls for putting up a one-story, 9,735-square-foot auto service facility with 49 parking spaces, including 10 spaces located in service bays. The planning commission voted to recommend approval of the Belle Tire site plan at its Aug. 20, 2013 meeting.

The fourth public hearing is on a standard annexation – from Ann Arbor Township to the city of Ann Arbor. It’s 0.39 acres, located at 2640 Miller Ave.

The final public hearing is on a change to fees associated with liquor licenses. Some fees are being eliminated – those related to licenses for which the state of Michigan doesn’t require local review. And the remaining license fee schedule is being revised to reflect actual costs:

on-premise liquor license annual renewal: $90 (increase from $50)
new liquor license: $600 (reduction from $2,500)
new liquor license application fee: $150 (increase from $100)
new DDA district license: $600 (reduction from $1,000)

8:01 p.m. PH: Shell/Tim Hortons PUD zoning. Thomas Partridge is holding forth. He says it’s a very busy location. He contends there’s no evidence of a traffic study being done, especially during rush hour. He asks that the proposal be referred back to the planning commission.

8:03 p.m. A resident who lives near the corner of Eisenhower and Ann Arbor-Saline Road is speaking. A number of concerns had been voiced by residents, none of which had been addressed so far, he says. Because of the speed on Ann Arbor-Saline, bicyclists use the sidewalk. So he has concerns about pedestrians being impacted by this development. Planning staff contends that traffic would not increase, but he is skeptical. He asks that the project be referred to the planning commission for further review.

8:05 p.m. A resident of Pomona, who’s a practicing Muslim, wants to advocate against negative perceptions of Muslims. Hieftje explains that speakers must address the topic of the public hearing. The resident thanks the mayor for the explanation and leaves the podium.

8:06 p.m. PH: Shell/Tim Hortons site plan. Thomas Partridge is again criticizing the project based on traffic issues.

8:08 p.m. PH: Belle Tire site plan. No one speaks at this public hearing.

8:11 p.m. PH: Rayer annexation. Thomas Partridge says he’s very concerned about the proliferation of zoning changes and annexations that are brought before the council without transparent information about them. He calls for this annexation proposal to be returned to the planning commission, so that an equal amount of acreage should be zoned for affordable housing and for businesses on public transportation routes.

8:14 p.m. PH: Liquor license review fees. Jeff Hayner is addressing the council on this issue. He’d just received a text message from a Ward 1 bar owner. The bar owner’s message says that lowering the fee for new licenses helps reduce the barrier to entry, but the owner is not in favor of the increase of fees for existing license holders. He appreciated the fact that the city wants to cover its staff costs.

8:17 p.m. Thomas Partridge is concerned about the loss of income to the city through the lowering of the fees. He calls for the proposal to be returned to the council’s liquor license review committee, to see if fees can be raised.

8:18 p.m. A young man is addressing the council based on free market principles. It should be easier to start businesses in all areas. We should make it cheaper to obtain liquor licenses, he says. He gets applause.

8:24 p.m. Minutes. Kunselman alludes to an updated version of the council minutes. He questions whether the minutes accurately reflect the McWilliams confirmation to the DDA board. Kunselman reviews the Sept. 3 meeting minutes. He now reviews the Sept.16 meeting minutes. He asks mayor John Hieftje to correct the characterization that the mayor gave on Sept. 16 when he said the nomination had been “postponed.” Kunselman notes that the nomination was crossed out after the Sept. 3 meeting. There’s a blow-by-blow here: “Column: How to Count to 8, Stopping at 6.”

8:24 p.m. Kailasapathy says she thought the nomination of McWilliams had been withdrawn on Sept. 3.

8:28 p.m. Kunselman asks that the minutes be amended to say that the mayor “pretended” the nomination had been postponed. Briere expresses no enthusiasm for discussing it. She asks for input from city attorney Stephen Postema. Postema says that it’s not a legal issue, and that what the council is being asked to do is approve the minutes. Anglin ventures that the minutes could be approved with an exception. There’s no interest in that from Kunselman.

8:28 p.m. Warpehoski says that Kunselman is proposing to falsify the historical record, and that he’s just engaging in political theater.

8:35 p.m. Lumm says that she thought McWilliams’ name had been withdrawn and was surprised to see it brought forward on Sept. 16. She says she wished she’d had better command of the parliamentary procedures. Teall says she thought the confirmation had been postponed on Sept. 3. She tells Kunselman that what he’s proposing isn’t accurate.

8:39 p.m. Kunselman says that others took the mayor at his word when he said he was withdrawing the nomination. There’s back and forth between Teall and Kunselman on the question of what Hieftje’s intent was. Briere raises a point of order, asking Hieftje to recognize each speaker in turn to regulate the speaking turns.

Hieftje apologizes for contributing to the murkiness. He says his intent was to have the motion for confirmation withdrawn, but not to withdraw the nomination. If he had it to do over again, he would have said that he wanted to have the motion withdrawn. But Hieftje says he doesn’t have a problem having the minutes amended to reflect the exact transcript of the meeting.

8:40 p.m. Outcome: The amendment on the minutes is unanimously approved, as are the minutes themselves.

8:40 p.m. Consent agenda. This is a group of items that are deemed to be routine and are voted on “all in one go.” Contracts for less than $100,000 can be placed on the consent agenda. This meeting’s consent agenda includes:

Contract with TSP Services, Inc. for the demolition of farmhouse, barns and outbuildings at the Wheeler Service Center ($57,940)
Purchase Order to Telvent USA for Fiber Optic Network (FON) asset management software ($41,520)
Schedule 17 of interagency agreement for collaborative technology and services (Washtenaw County, Provider) ($80,643)
Transfer Delinquent water utility, board up, clean up, vacant property inspection, housing inspection, fire inspection, fire alarm, police alarm and graffiti removal invoices to the December 2013 City Tax Roll
Professional services agreement with The Azimuth Group, Inc. for organizational development ($53,010) This consultant is supposed to help the city over the next 18 months to develop “strategies and tactics to improve employee engagement, improve organizational alignment with the City’s mission statement, and foster a cohesive organizational culture.”
Street closings for the Ann Arbor Thanksgiving Day Turkey Trot – Thursday, Nov. 28, 2013
Purchase of a turf aerator and a thatcher/seeder from Spartan Distributors ($29,989)
Purchase of a light rescue vehicle for the fire department from Red Holman GMC ($26,777)

8:41 p.m. Briere pulls out the Azimuth Group Inc. professional services agreement from the consent agenda, to be considered separately.

8:42 p.m. Briere asks city administrator Steve Powers to explain the item. Powers says the intent is to help improve the city government’s ability to organize among the departments and to align the staff with the priorities set by the council. He describes the involvement of the consultant as lasting about 12 months.

8:42 p.m. Outcome: The council has approved the consent agenda.

8:42 p.m. Shell/Tim Hortons PUD zoning. The Shell/Tim Hortons is at the northeast corner of Ann Arbor-Saline Road and Eisenhower Parkway. The changes to the PUD (planned unit development) supplemental regulations on the 1.44-acre site would allow for a drive-thru restaurant within the existing convenience store, where a Tim Hortons is already located. The project includes constructing a 109-square-foot drive-thru window addition and access driveway on the north side of the building.

8:44 p.m. Teall invites city planning manager Wendy Rampson to address the traffic issues. Rampson indicates that the study concluded that most of the traffic that would be turning into the drive-thru would already be on the road.

8:44 p.m. Outcome: The council has voted unanimously to approve the changes to the PUD supplemental regulations for the Shell/Tim Hortons drive-thru on Ann Arbor-Saline Road.

8:45 p.m. Shell/Tim Hortons site plan. A request for approval of the site plan for this project is considered separately.

8:45 p.m. Outcome: The council has voted unanimously to approve the site plan for the Shell/Tim Hortons drive-thru on Ann Arbor-Saline Road.

8:45 p.m. Recess. The council is now in recess.

8:54 p.m. Have been told by his elementary school principal from years ago, that the young man who addressed the council during the liquor license public hearing was Josh Nacht, David Nacht’s son.

8:56 p.m. We’re back.

8:56 p.m. Sidewalk ordinance changes. This ordinance change – to the definition of a sidewalk – was up for final approval on July 1, 2013. If an existing walkway meets the definition of a “sidewalk,” then the city bears responsibility for its repair for the duration of the sidewalk repair millage – which was approved by voters in November 2011 for a five-year period. All other things being equal, the adjacent property owner would be responsible for snow removal in the winter.

The change to the definition relates to walkways that aren’t really on the “side” of anything – walkways that connect a street to a park or school, or that connect two parallel streets. The city calls them “cross-lot” walkways. The ordinance change would allow such walkways to be “sidewalks” if the council votes to accept them for “public use.” A companion resolution later on the agenda would do that – for 34 cross-lot walkways.

If such walkways were added into the definition of “sidewalk” in this way, then the city would be responsible for repair. That’s a result welcomed by property owners. But all other things being equal, that would put the burden for snow removal on those property owners – a less welcome result. That was the sentiment that led the council to postpone final consideration of the change back in July.

But tonight the council will be asked to consider a different approach to that definitional change – one that would allow the so-called “cross-lot” paved pathways to qualify as sidewalks under the city’s ordinance, but not trigger a winter maintenance requirement for adjacent property owners. This fresh look tonight would mean that any action taken would be considered only an initial approval of the ordinance change. Final enactment of the change would require a second vote at a subsequent council meeting.

8:59 p.m. Briere thanks the staff for responding to concerns of the council. The ordinance doesn’t just change the definition, but also makes clear that adjacent property owners are not responsible for winter snow clearance or mowing the grass. Historically, they’ve never been responsible, she says. She notes that this approach will eliminate the possibility that one of four property owners might be regarded as a “slacker.” Lumm also says she’ll support the ordinance tonight.

9:01 p.m. Lumm says the original intent was a good one – to allow the sidewalk repair funds to be used for these cross-lot paths. She compliments the staff for looking at other communities. The $7,000 cost to the city for repair and maintenance, she says, is “peanuts.” It’s just what local government should do, she says.

Kunselman also says he supports this approach. He wants to know what happens if a renewal of the sidewalk repair millage does not pass.

9:01 p.m. Cresson Slotten, manager of the city’s systems planning unit, says that if that millage were not renewed, the property owners would still not have any responsibility.

9:07 p.m. Responding to a question from Anglin, Slotten indicates that the new ordinance makes clear that adjacent property owners do not have responsibility for repair and maintenance. Anglin wants it to be made clearer. Briere says she can understand Anglin’s confusion, because the two parts of the ordinance don’t appear to be related. But she reiterates Slotten’s point that the ordinance simply states that property owners don’t have responsibility for cross-lot walkways.

Assistant city attorney Abigail Elias explains that the exception for the cross-lot walkways is an absolute exception – that is, not contingent on the passage of the sidewalk repair millage. Lumm is now saying that this clarification was sent to the property owners, saying it was “great work on staff’s part.”

9:14 p.m. Warpehoski brings up subsection (B) and wonders if it voids existing agreements with neighborhood associations. Elias says that it’s an exception to the exception. Anglin wants the city to provide a document for residents that they can keep with their deeds. Kailasapathy questions whether the cross-lot walkways belong to the property owners. Elias is reluctant to record any documents with deeds, because the council can change the ordinance in the future.

9:17 p.m. Anglin says a resident has just handed him some communication he’d received from the city in 2009. That communication had stated that the resident now had responsibility for maintenance. Anglin suggests that a similar communication could be sent to state that people don’t have responsibility.

Slotten responds to a question from Warpehoski saying that two of the 34 cross-lot walkways have existing maintenance agreements with a homeowner’s association. Elias says that the agreements with the homeowner’s associations will remain intact.

9:19 p.m. Kunselman asks about the dates in the ordinance that refer to the Ann Arbor DDA. Elias allows that the ordinance would need to be revised if the sidewalk repair millage is renewed. She explains that this is part of the ordinance that relates to ordinary sidewalks on the side of streets.

9:19 p.m. Outcome: The council has voted unanimously to give initial approval to the inclusion of cross-lot walkways in the definition of sidewalk, but without the associated requirement that adjacent property owners are responsible for snow clearance.

9:20 p.m. Accept 34 sidewalks for public use (8 votes required). This is the companion resolution to the ordinance change that would broaden the definition of a sidewalk to include cross-lot walkways. The ordinance change – which was given initial approval earlier in the meeting – allows such walkways to qualify as sidewalks for purposes of spending from the sidewalk repair millage, without triggering a winter maintenance requirement by adjacent property owners. But to qualify, the walkways must be accepted for public use by the city council. This resolution would accept 34 cross-lot walkways for public use.

9:20 p.m. Lumm moves to postpone. It will be considered at the second reading of the ordinance change. Steve Powers confirms it should be postponed.

9:21 p.m. Outcome: The council has voted unanimously to postpone acceptance of 34 different cross-lot walkways for public use until the council’s Oct. 21 meeting

9:21 p.m. Authorization of sewage disposal revenue re-funding bonds.

9:22 p.m. Lumm says she appreciates that all the costs associated with the bond issuance are included in the savings.

9:22 p.m. Outcome: The council has voted unanimously to approve the re-funding of the sewage disposal revenue bonds.

9:22 p.m. Liquor license fee changes. This item is coming forward from the liquor license review committee. Some fees are being eliminated – those related to licenses for which the state of Michigan doesn’t require local review. And the remaining license fee schedule is being revised to reflect actual costs:

on-premise liquor license annual renewal – $90 (increase from $50)
new liquor license – $600 (reduction from $2,500)
new liquor license application fee – $150 (increase from $100)
new DDA district license – $600 (reduction from $1,000)

9:24 p.m. Lumm is speaking on behalf of the council’s liquor license review committee. She explains that transfers don’t require review by the state, so those fees are being eliminated. She notes that the adjustments are meant to reflect the actual underlying city costs. The fees hadn’t been reviewed in a quite a while, she says.

9:25 p.m. Lumm thanks the various staff who helped with the recommendation.

9:25 p.m. Outcome: The council has voted unanimously to approve the changes to the liquor license fees.

9:25 p.m. 100 Resilient Cities Centennial challenge grant application. This resolution directs the city administrator to apply for the grant, which is sponsored by the Rockefeller Foundation. Each of 100 winning cities will receive three forms of support, according to the Rockefeller Foundation website:

membership in the newly formed 100 Resilient Cities Network, which will provide support to member cities and share new knowledge and resilience best practices.
support to hire a chief resilience officer (CRO). The CRO would oversee the development of a resilience strategy for the city.
support to create a resilience plan, along with tools and resources for implementation.

9:26 p.m. Warpehoski says the resolution was recommended by the city environmental commission. He says it might be somewhat of a long shot, but the strength of the city’s application resides in the work that the city has already done. Staff effort to put together the application is not anticipated to be onerous, he says.

9:29 p.m. Kailasapathy asks Matt Naud, environmental coordinator for the city, to come to the podium. She asks about working toward rankings compared to actually approving the quality of life. Naud says that the amount of the grant would be $1 million, with the only requirement that the city name someone as the chief resilience officer. Kailasapathy asks about staff time. Naud says the city would be buying someone to work on this for the period of the grant. He says it would supplement the work that the city is already doing.

9:30 p.m. Kunselman asks what “resiliency” means in this context and what would the city be planning for. Naud’s first try gets this response from Kunselman: “You didn’t answer my question.” Naud says it’s being resilient to natural and made-made disasters. He refers to emergency management and climate action plans as examples.

9:32 p.m. Briere says that the environmental commission, on which she serves as a councilmember, has been talking about resiliency. It includes helping neighborhoods to make connections to the city to make sure that assistance can be provided – to deal with a tree that’s fallen down or a road that’s collapsed. The goal is to create the capacity to recover quickly when things go wrong, she says.

9:34 p.m. Briere says the issue has been studied in New Orleans in the wake of Katrina, as well as in Chicago, studying how neighborhoods responded to economic downturns. Anglin wonders if these grants were intended for cities much larger than Ann Arbor.

9:35 p.m. Anglin says he thinks it’s a good idea to be prepared. Hieftje says he doesn’t see a reason not to apply. The reward could be great. He ventures that these kinds of grants tend to be awarded to cities that already have “a lot on the ball.” Ann Arbor is not immune from natural disasters, he says. He calls the departure of Pfizer as an economic storm that the city had weathered very well. He appreciates the environmental commission bringing it forward.

9:36 p.m. Outcome: The council has voted unanimously to direct the city administrator to apply for the Rockefeller Foundation 100 Resilient Cities grant.

9:36 p.m. Street closure for University of Michigan Victors for Michigan Campaign. The Victors campaign is the university’s capital fundraising campaign. The proposed street closure would shut down North University from Thayer to Fletcher from noon to midnight on Friday, Nov. 8, 2013 for the launch of the campaign. The staff memo indicates that the activities will include live music, entertainment, activities, free food and drinks and giveaways. The event itself starts at 5 p.m.

9:36 p.m. Outcome: The council has voted unanimously to approve the street closure for the UM Victors campaign.

9:36 p.m. Amend FY 2014 general fund budget for traffic calming (speed bumps) projects ($55,000). (8 votes required). This resolution would add an additional five traffic calming projects to the work plan over this year and the next fiscal year. Starting in 2010, the city had reduced the number of traffic calming studies that it would fund to just one per year. Tonight’s resolution would transfer $55,000 from the city’s general fund to the local street fund, to pay for an additional two studies this year (FY 2014). In addition, the resolution directs city administrator Steve Powers to include three traffic calming projects in FY 2015.

The five projects mentioned in the resolution are: South Boulevard (Ward 3 – qualified for traffic calming in 2009); Pomona Road (Ward 5 – qualified in 2009); Wells (Ward 3 – qualified in 2009); Larchmont Drive (Ward 2 – qualified in 2010); Northside (Ward 1 – qualified in 2012). The resolution is being sponsored by Sumi Kailasapathy (Ward 1), Sabra Briere (Ward 1), Jane Lumm (Ward 2) and Christopher Taylor (Ward 3).

9:40 p.m. Briere says that her neighborhood had sought traffic calming measures back in about 2003. They’d first asked for stop signs and had been told they couldn’t have them. She recalled the confusion about the petitioning process. She’s describing her neighborhood’s experience in a fair amount of detail. Duck and mating season are a point of information. A porch was torn off by a speeding car. A stopped speeder told the police officer to just keep her driver’s license because she was in a hurry. Briere is now talking about the importance of addressing the traffic calming measures in other neighborhoods.

9:42 p.m. Kailasapathy says that cars speeding down quiet streets is not the kind of Ann Arbor we want to see. Traffic calming helps make neighborhoods livable, she says. She’s contrasting the importance of funding projects like this, with the constant push to focus on the downtown area.

9:46 p.m. Lumm says she’s happy to co-sponsor the resolution, and thanks Briere and Kailasapathy. She asks Nick Hutchinson, senior project manager, some questions. He says that the five petitions mentioned in the resolution are the only petitions currently active.

Lumm wants to know if the money allocated for the State Street corridor study could be used for the FY 2014 traffic calming. City administrator Steve Powers indicates that the State Street corridor study is complete. There’s also a State Street traffic study, he says. Community services area administrator Sumedh Bahl explains that the study in the FY 2014 budget is for traffic and transportation in the State Street area.

9:47 p.m. Lumm says she’s supportive of the resolution and is glad to see it move forward. Kunselman says he’s also supportive.

9:48 p.m. Kunselman says he’s concerned about a future backlog. He says he’d hate to have a backlog in FY 2016. He wants to know who makes the decisions about opening up the petitioning process.

9:51 p.m. Nick Hutchinson says the FY 2014 would need to be done by June 30, 2014. The other two would need to be done after July 1, 2014. Kunselman says there are a number of street projects coming up in FY 2014. Kunselman wants to know if the traffic calming project would impact the staff’s ability to complete those projects. The design, Hutchinson says, is not complicated. It’s more the public engagement process that requires effort. He says the 2010 decision to suspend acceptance of petitions was made by the public services area administrator at the time [Sue McCormick].

9:54 p.m. Kunselman is pressing for details about the program. He wants to know why more money wasn’t already budgeted n FY 2014. Powers says it was a question of priority. Kunselman wants to know why the council would now amend the budget. Briere ventures that the reason that the city council didn’t ask for more traffic calming is that they had forgotten that such projects were done. She says the neighborhoods might not have pestered councilmembers about it.

10:00 p.m. Teall says that the rerouted traffic from the East Stadium bridges project had led a neighborhood to delay a request for traffic calming. Lumm says she now has a list of streets where people have said they want traffic calming for their streets. She suggests that the $237,000 of street funds in the public art fund could be tapped for additional traffic calming projects. She wants information from the city attorney about how to proceed with that. That seems like a logical and appropriate source for funding traffic calming.

Briere says she appreciates the reminder about the public art fund. She notes that the public art ordinance would need to be amended in order to return those public art funds to the street fund.

10:04 p.m. Kunselman says he doesn’t think that the street millage fund can be used for traffic calming. But he wants more information about how to fund it for a much longer duration. He doesn’t want a stop-and-go approach for the funding of the program. As much as he’d like to spend the money, he says he still wants to be careful. It would open up the door for other safety projects – streetlights, crosswalks and the like.

10:04 p.m. Kunselman wants a postponement. [As a budget amendment, the resolution needs eight votes and any one of the councilmembers could effectively "veto" the resolution.] Kunselman moves for postponement.

Anglin is holding forth. Teall raises a point of order, saying that Anglin should be speaking to the postponement. Anglin replies that he’s speaking about a reason for the postponement – he wants a more scientific way of looking at it. Lumm understands the intent of the postponement, but won’t support it. The resolution tonight is modest, she says.

10:09 p.m. Briere says she appreciates Kunselman goal in postponement. She feels it’s an infrastructure improvement, so it’s a resolution consistent with the council’s priorities. It focuses on Kunselman’s regular critique of the council, she notes – that the council doesn’t focus on health, safety and welfare. Briere says she appreciates the need for more data, but thinks a lot of the data already exists.

Teall says she won’t support the postponement, but appreciates what Kunselman’s goal is – to look at the issue more comprehensively.

10:09 p.m. Outcome on postponement: The motion to postpone fails.

10:12 p.m. Kunselman says he’ll support the resolution. It brings forth a new era of projects supporting safety in neighborhoods, he says. Lumm reiterates her support of the resolution.

Hieftje recalls being around when the traffic calming program started. During the recession, many things were cut, he says. He warned there is pushback on these kinds of projects, because some people don’t support traffic calming.

10:12 p.m. Outcome: The council has voted to add five traffic calming projects.

10:12 p.m. Waive attorney-client privilege. If approved, the resolution would result in the waiver of attorney-client privilege with respect to a specific advice memo that has already been written by the city attorney’s office. The memo responds to questions that were raised about the procedure used to appoint Al McWilliams to the board of the Ann Arbor Downtown Development Authority at the council’s Sept. 16, 2013 meeting.

Mayor John Hieftje had asked the council to vote on McWilliams’ appointment after saying at a previous meeting that he was withdrawing the nomination. Under the council’s rules, an 8-vote majority is required for confirmation of an appointment when the nomination is made at the same meeting when the confirmation vote is taken. McWilliams was confirmed on a 6-5 vote.

The advice memo likely establishes that it’s doubtful a successful court challenge could be brought – partly because it’s not clear who might have standing to bring such a suit. A “whereas” clause in the waiver resolution states that “the public good will be best served by releasing this advice to the public.” The first of two “resolved” clauses makes clear that the waiver of the attorney-client privilege is confined to a narrow circumstance: “The Council waives privilege in this specific circumstance, as the waiver of privilege does not expose the City to material legal risk and disclosure of the legal issues raised in this memo would not unduly constrain future Council actions.”

10:18 p.m. Warpehoski explains that the resolution was developed before the city attorney’s advice memo was written. The city attorney’s advice is generally confidential for a good reason, he says. Warpehoski proposes four tests: (1) legal risk should be small; (2) public interest is wide; (3) release of information doesn’t unduly constrain future council action; and (4) it doesn’t blindside the city attorney. Based on conversations with Christopher Taylor and the city attorney, Warpehoski says, the idea is to ask that an opinion, for a third party, be written as opposed to waiving privilege for an existing document.

10:21 p.m. Warpehoski is explaining the difference between the first draft of the resolution and the revised one: “That City Council requests that the City Attorney draft an opinion by October 16, 2013 for the benefit of the public that answers whether the September 16, 2013 vote to appoint Al McWilliams to the DDA can be challenged on the grounds that the confirmation motion should have required 8 votes…”

10:23 p.m. Postema says that it would make no sense for him to prepare an opinion for an audience outside the council in the ordinary course of business. But this resolution is an action taken by the council, his client, so he’s prepared to draft the opinion.

10:27 p.m. Kailasapathy addresses the issue of the public’s interest. Postema says that the vote was taken and the vote was announced. The legal significance of that is the only thing he’s going to put in his opinion, and the answer is going to be fairly easy.

Kailasapathy is not satisfied: “People are really upset.” She’s really troubled that the legal opinion will be so narrowly focused. She’s concerned about the integrity of the entire confirmation process. Briere says that the city attorney has suggested that the rules be revised to make the appointment process clear. She says she’s not sure how to change the outcome of the vote. She doesn’t know how Kailasapathy’s goal can be realized – which Briere thinks is to rescind McWilliams’ nomination.

10:31 p.m. Kunselman says he finds the resolution bizarre, because the provision in the charter already sets forth the procedure for filing the opinion. Kunselman reviews the arguments regarding the procedural requirement of 8 votes. He reviews his email correspondence with the city clerk. Kunselman says that the clerk has asked the city attorney for advice, which Kunselman says triggers the charter requirement for when an administrative head requests advice. Postema says that he responds only to council requests.

Hieftje says he’s happy to support the resolution.

10:36 p.m. Anglin says that anyone who voted in favor could bring it back now. Warpehoski asks Kailasapathy what she was looking for in the resolution. She says she doesn’t have the exact verbiage. She feels that justice was not served. It was not just the council feeling blindsided, but also the public. Warpehoski says he hears that, and as he reads Roberts Rules, he doesn’t see a motion to reconsider as being in order – based on the DDA Act that states that a member can only be removed after a public hearing. He was ready to move forward with a motion to reconsider, but doesn’t think it’s in order under parliamentary rules.

10:39 p.m. Kunselman says that city clerk Jackie Beaudry was due a response. Postema says she was not due a response. Kunselman asks Postema if Warpehoski could bring back the motion for reconsideration. Postema says that’s up to Warpehoski to answer. Warpehoski says that the outcome of the confirmation vote has been partially executed, and for that reason Roberts Rules would prohibit it.

10:41 p.m. Kunselman asks Hieftje if he would allow Warpehoski to bring a motion to reconsider. Hieftje appeals to the DDA Act and what’s required for removal of a DDA member. Kunselman says that the entire board has engaged in willful neglect. So that would be the “cause” that could be used to remove members of the DDA board.

10:46 p.m. Lumm says it’s important to clear the air on this. Postema says that the question is the legal effect of the vote. Lumm says that that doesn’t clear the air. She discusses various council rules.

10:46 p.m. Anglin says that the councilmembers who are “hiding behind” legal consideration should move for a reconsideration.

10:47 p.m. Outcome: The council voted over dissent from Mike Anglin to direct the city attorney to draft an opinion on McWilliams’ appointment.

10:48 p.m. Closed session. The council has voted to go into closed session to discuss land acquisition.

11:08 p.m. We’re back from closed session that was followed by a recess.

11:08 p.m. Adopt solid waste resource plan. The council is being asked to adopt a plan that includes a number of initiatives, including goals for increased recycling/diversion rates – generally and for apartment buildings in particular. A pilot program would add all plate scrapings to the materials that can be placed in the brown carts used to collect compostable matter. And if that pilot program is successful, the plan calls for the possibility of reducing the frequency of curbside pickup – from the current weekly regime to a less frequent schedule.

Also included in the draft plan is a proposal to relocate and upgrade the drop-off station at Platt and Ellsworth. The implementation of a fee for single-use bags at retail outlets is also part of the plan. Previous Chronicle coverage: Waste as Resource: Ann Arbor’s Five Year Plan[Waste Less: City of Ann Arbor Solid Waste Resource Plan.] [Appendices to Waste Less]

11:12 p.m. Sabra Briere (Ward 5) is explaining the background of how the plan was developed. The goal is to reduce the amount of material that is thrown away, she says. Solid waste manager Tom McMurtrie is at the podium explaining that there was a lot of participation from various parts of the community to develop the plan. There’s a big item that the plan includes, he says – reduced organic waste. It’s the next big “frontier,” he says, to expand organics collection for composting.

11:16 p.m. Briere is now asking questions of McMurtrie. When the manual sorting of the waste in a truck had been done, she said, it was hard to estimate how much food waste could be diverted. McMurtrie explained that it was hard because it was mixed in with all the other material, and he asked councilmembers to imagine “ripping open garbage bags pawing through material.”

Responding to a question from Briere, McMurtrie allows there will be increased costs associated with processing food waste.

11:19 p.m. Briere asks McMurtrie to address the issue of some items that could not be composted – like diapers. McMurtrie described the plan as directing the evaluation of reduced frequency, not to implement it. He gives Portland as an example. Briere ventures that the food waste collection could be implemented and then be evaluated for the potential. She says that reduced frequency could voluntarily be implemented by people simply not setting out their carts if they’re not full.

11:23 p.m. Lumm thanks all those involved. She understands that the plan doesn’t commit the city to particular actions, but is concerned about some that are mentioned – like the reduced frequency of trash pickup. People can’t believe that the solid waste millage, which generates $12 million annually, she says, isn’t enough to pay for weekly trash pickup. She calls this the most basic and fundamental service to residents. She moves an amendment to the solid waste plan, to remove all references to every-other-week curbside pickup. Kailasapathy also wants “pay as you throw” to be deleted from the plan.

11:26 p.m. Lumm considers Kailasapathy’s suggestion friendly. Lumm recalls her previous tenure on the council when pay-as-you-throw proposals had been studied. Briere tells McMurtrie that she recalls him saying that not everything the city has done in the last 10 years has been included in the plan. She ventures that even if mention of the frequency reduction is omitted, it’s still possible that it could be implemented. McMurtrie says yes, but not without approval of the council.

11:34 p.m. Kunselman brings up RecycleBank. He also questions whether Portland should be used as an example, since that region doesn’t deal with freezing weather. Kunselman says that he supports the amendments. He says that if you leave a baby diaper in a cart for more than a week, it will be pretty “rank.”

Teall won’t support the amendments. You have to study an issue, she said, to find out if it will work. She’s grateful that we live in an environment where “poop freezes,” Teall says. Warpehoski teases Teall that the council will not appoint her – a reference to the McWilliams appointment to the DDA.

11:41 p.m. Hieftje says that Portland is generally regarded as a model city in the U.S. Briere says that it’s possible to track how often people set out their refuse carts, so the city could measure the impact of its efforts. Briere points out that Portland has privatized its trash collection, so its approach can’t be compared directly.

Kunselman says that Briere’s point is an important piece of information. He asks if Portland has a “dumping problem.” McMurtrie says that hasn’t been researched. Briere says she couldn’t find anything on that topic. Responding to Teall’s point that there’s a lot of citizens who really like to reduce, reuse, and recycle, Kunselman says he’s one of them. But it’s important to give residents confidence that the city is staying on track with weekly trash collection.

11:47 p.m. Hieftje wants to have the amendments on pay-as-you-throw and on every-other-week trash collection separated out again. Lumm and Kailasapathy agree to that. Hieftje says that on his block, many people don’t put out their trash every week. Warpehoski says he understands Teall’s frustration about not being leaders. But he’ll support the amendment on the mention of every-other-week. There’s other lower hanging fruit than food waste – like improving multi-family recycling rates – which offer less angst, he says.

11:50 p.m. Kunselman says there’s nothing he likes more than “talking trash,” apparently completely aware of the pun. He was responding to Hieftje’s effort to move the council along to a vote on the amendment. Lumm says she supports the amendment.

11:51 p.m. Outcome on the every-other-week amendment: The council has approved the amendment over dissent from Hieftje and Teall.

11:52 p.m. Kailasapathy is now arguing for her amendment that would remove mention of pay-as-you-throw from the five-year solid waste plan. Hieftje says he’ll support the amendment and hopes it’ll move along quickly.

11:53 p.m. Outcome on the pay-as-you-throw amendment: The council has unanimously approved the amendment removing mention of pay-as-you-throw as a possibility.

11:57 p.m. Anglin has raised the question of how dangerous materials are disposed of, like fluorescent light bulbs. Lumm says she’ll support the solid waste plan. Kunselman reads a headline out of Portland indicating that when Portland switched to every-other-week pickup, dirty diapers started piling up in recycling bins.

11:58 p.m. Outcome: The council has voted unanimously to adopt the solid waste plan as amended.

11:58 p.m. Belle Tire site plan. The planning commission recommended approval of the site plan at its Aug. 20, 2013 meeting. The site is located at 590 W. Ellsworth – just east of the intersection with South State Street.

Aerial view of a proposed Belle Tire site.

The 1-acre site – currently vacant – is on the north side of Ellsworth, adjacent to and east of a new Tim Hortons. A restaurant building formerly located on the property was demolished.

The proposal calls for putting up a one-story, 9,735-square-foot auto service facility with 49 parking spaces, included 10 spaces located in service bays. An existing curb cut into the site from Ellsworth would be closed, and the business would share an entrance with the Tim Hortons site. The project includes a new sidewalk along Ellsworth.

11:58 p.m. Outcome: The council voted unanimously to approve the Belle Tire site plan.

11:58 p.m. Rayer annexation. This is a standard annexation into the city of Ann Arbor. It’s 0.39 acres, located at 2640 Miller Ave.

11:58 p.m. Outcome: The council has voted unanimously to approve the Rayer annexation.

11:58 p.m. Annual purchase order for U.P.M. high performance cold patch material (pothole repair) Barrett Paving Materials Inc. ($116,500). UPM seems to stand for “universal patching material.”

11:59 p.m. Briere says it’s always good to see it on the list of things the city is doing.

11:59 p.m. Outcome: The council has voted unanimously to approve the purchase of cold patch material.

11:59 p.m. Easement for water main from the University of Michigan at 2850 South Industrial Highway (8 votes required). The easement is needed in connection with the construction of a bus storage facility at the adjacent Ann Arbor Area Transportation Authority headquarters at 2700 South Industrial Hwy.

11:59 p.m. Outcome: The council has voted unanimously to accept the easement for a water main from the University of Michigan.

12:08 a.m. Open agenda. Warpehoski wants to open the agenda to reconsider the McWilliams nomination. Agenda is now open.

Warpehoski moves reconsideration of the nomination. He says that whether it took six or eight votes, the ruling of the meeting made at the meeting should stand, saying that it’s too late to raise a point of order. A point of order has to be made at the time of ~~breech~~ breach. So he feels the vote stands.

However, for purposes of the public interest and the smooth working of the council, Warpehoski wanted to put forward this reconsideration. He’s asking for some assurances: (1) that there’ll be support for a postponement, and that the council won’t vote on it tonight; (2) the vote required at a later meeting will be a six-vote tally, not eight; and (3) if six votes in support aren’t in attendance at Oct. 21, then there’d be support for postponement until the Nov. 7 meeting.

12:11 a.m. Kunselman says he really supports Warpehoski’s leadership. He offers the assurance requested by Warpehoski. Now Warpehoski moves for postponement – but the council hasn’t voted on the motion to reconsider. Hieftje indicates the motion to reconsider will be moved to the next meeting. If that vote is successful, then the council will debate the confirmation.

12:13 a.m. Hieftje says he’ll support the effort. He apologizes for using the wrong word – “nomination” versus “motion.” Briere says she appreciated Warpehoski’s work on the effort. They’d worked together on the issue of the attorney’s opinion as well.

12:13 a.m. Outcome: The council has postponed until Oct. 21 the motion to reconsider the vote on the Al McWilliams appointment to the DDA board.

12:13 a.m. Public Commentary. There’s no requirement to sign up in advance for this slot for public commentary.

12:17 a.m. The Muslim speaker from earlier has waited until the end of the meeting. He invites councilmembers to the Islamic Center of Ann Arbor to learn more about their community. His name is Eldred Bruce Meadows.

12:17 a.m. Adjournment. We are now adjourned. That’s all from the hard benches.

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

Ann Arbor Council to Weigh Privilege Waiver

Chronicle Staff — Fri, 04 Oct 2013 22:05:50 +0000

A resolution that’s been added to the Ann Arbor city council’s Monday, Oct. 7, 2013 agenda would, if approved, result in the waiver of attorney-client privilege with respect to a specific advice memo that has already been written by the city attorney’s office.

The memo responds to questions that were raised about the procedure used to appoint Al McWilliams to the board of the Ann Arbor Downtown Development Authority at the council’s Sept. 16, 2013 meeting. Mayor John Hieftje asked the council to vote on McWilliams’ appointment after saying at a previous meeting that he was withdrawing the nomination. Under the council’s rules, an 8-vote majority is required for confirmation of an appointment when the nomination is made at the same meeting when the confirmation vote is taken. McWilliams was confirmed on a 6-5 vote.

The advice memo likely establishes that it’s doubtful a successful court challenge could be brought – partly because it’s not clear who might have standing to bring such a suit.

A “whereas” clause in the waiver resolution states that “the public good will be best served by releasing this advice to the public.”

The first of two “resolved” clauses makes clear that the waiver of the attorney-client privilege is confined to a narrow circumstance: “The Council waives privilege in this specific circumstance, as the waiver of privilege does not expose the City to material legal risk and disclosure of the legal issues raised in this memo would not unduly constrain future Council actions.”

Under the Ann Arbor city charter, written opinions of the city attorney are to be filed with the city clerk’s office. City attorney Stephen Postema has contended in the past that his advice memos are not written opinions under the city charter and has declined to file them with the clerk’s office.

In the past, the council has voted on a resolution that would have made an attorney opinion public – on the legal basis for the Percent for Art program. That vote, taken on April 2, 2012, failed with support only from Sabra Briere (Ward 1), Mike Anglin (Ward 5) and Stephen Kunselman (Ward 3).

The Oct. 7, 2013 agenda item is sponsored by Sabra Briere (Ward 1) and Chuck Warpehoski (Ward 5).

Column: Making Sunshine with FOIA

Dave Askins — Mon, 11 Mar 2013 15:01:05 +0000

National Sunshine Week started yesterday. That’s not a celebration of daylight saving time, which started the same day. But the two could be connected. Yesterday’s annual conversion to daylight saving time is supposed to give everyone some extra literal sunshine toward the end of the day. Sunshine Week is an occasion to remind ourselves of the extra figurative sunshine in our governance – ensured in many states through legislation enacted in the 1970s.

Assertion of the attorney-client privilege can, on occasion, inappropriately shield public records from view. This column shines a light on the subject by considering such a case.

Sunshine Week is an occasion to remind ourselves that open government is good government.

Michigan has two laws that are key to open government: the Open Meetings Act (OMA) and the Freedom of Information Act (FOIA). Both of these laws rely crucially on good faith. For example, the FOIA allows a public body to deny access to certain public records – like those that are protected by the attorney-client privilege.

If a record is requested and then denied based on the attorney-client privilege, a requester has no way of judging whether the assertion of privilege is appropriate. A requester relies on the good faith of government officials that privilege is not inappropriately extended to records that are not in fact protected by privilege. A requester can resort to a lawsuit, which under Michigan case law can result in the review of the records by a judge to confirm – or refute – the public body’s assertion of privilege. But few requesters have the wherewithal to file a lawsuit over a FOIA denial.

Here at The Ann Arbor Chronicle, we’re celebrating Sunshine Week by laying out a recent occasion when we requested records under the FOIA, were denied the records, appealed to the city administrator, were denied under the appeal, but then were able to obtain some of the records by other means. The record in question is an email written by Ann Arbor city attorney Stephen Postema. This provides an opportunity to evaluate independently, without filing a lawsuit, whether the city inappropriately asserted attorney-client privilege in denying access to a record.

We consulted on the matter with an attorney, Marcia Proctor, who agreed to analyze the relevant factors in a hypothetical scenario. Proctor is former general counsel of the Michigan Bar Association, a specialist in legal ethics, whose practice specializes in professional responsibility for lawyers and judges.

We first present the hypothetical scenario, followed by a brief discussion of the relevant factors in the scenario identified by Proctor. We then present the text of the email and apply the various tests outlined by Proctor. We reach the conclusion that the city inappropriately asserted attorney-privilege to the document.

We then evaluate whether a different exemption provided by the FOIA might apply. That exemption allows a public body to withhold communications internal to the body – to the extent that they are non-factual and preliminary to a final decision by the body. In the balancing test prescribed by the state statute, we reach a different conclusion than the city did: We think the public interest in disclosure outweighed any interest the city had in shielding this frank internal communication from public view.

Finally, we urge the city council to weigh in on the city’s administrative policy on FOIA response, which is currently being revised. It’s important for councilmembers to set the overarching principle that guides the city’s FOIA responses. And we think that guidance should be biased in favor of disclosure.

The Hypothetical

Here’s the hypothetical scenario we outlined for Proctor:

The results of a city’s annual financial audit are presented to the city’s audit committee at a regularly scheduled public meeting. Among the items in the report, and highlighted by the auditor orally, are instances of an employee who claimed mileage reimbursements while at the same time receiving a vehicle allowance. The auditor characterizes the instances as a “double dip” and violation of city policy. The records produced under a FOIA request identify the employee as the city attorney. The city attorney reports directly to the city council, and serves at the council’s pleasure.

Sometime after the meeting, the city attorney writes an email to all city councilmembers, the chief financial officer and the city administrator, addressing his reimbursements identified in the audit report.

Subsequently a second meeting of the audit committee is convened, in part to discuss the mileage reimbursements. The records produced under a second FOIA request exclude the city attorney’s email, and an appeal to the city administrator challenging the denial is unsuccessful.

Factors to Consider

Proctor identified four key factors to consider, in evaluating whether the email described in the hypothetical scenario might have attorney-client privilege properly attached. Summarizing Proctor, in Michigan the attorney-client privilege attaches to information satisfying the following factors:

The information is a communication;
The communication is made in confidence by a client to his or her attorney (or by the attorney to his client);
In the communication, the attorney is acting as legal advisor;
The communication must be for the purpose of obtaining legal advice on some right or obligation.

In the hypothetical, Proctor noted that the record in question is an email communication, thus satisfying Factor 1.

With respect to Factor 2, Proctor identified as relevant whether all the parties copied on the email – representatives of finance and administration – are ongoing clients in the scope of the city attorney’s duties. Although it wouldn’t be unusual for finance and administrative staff to be included in the scope of the city attorney’s duties, Proctor notes that if the city attorney’s duties don’t cover giving advice to those staff, then communications that include a third party are generally not privileged. She also identified as relevant whether there was a label or some other indication that the communication was made in confidence. Based just on the limited facts in the hypothetical scenario, Proctor couldn’t conclude whether Factor 2 would be satisfied.

For Factor 3, Proctor highlighted that attorney-client privilege applies just when the lawyer is acting as legal advisor to the client in the matter. In the hypothetical scenario, she observed, it’s the city attorney’s own conduct that appears to be the core subject matter of the communication – given that the auditor’s report has called into question whether the city attorney’s mileage reimbursements were proper. Proctor noted that under lawyer ethics rules, a conflict of interest between a client’s interest and the lawyer’s own interests can prevent a lawyer from advising the client. But if the lawyer is not advising the client as the client’s lawyer, then the communication cannot be privileged.

Also related to Factor 3, Proctor notes that a lawyer might be asked to perform a variety of functions beyond providing legal advice – including providing input on business, financial or political issues. The email described in the hypothetical scenario, Proctor observed, appears to relate to the business duties of the audit committee. It’s only when the lawyer is acting as a lawyer for the client that a communication can be privileged, Proctor stressed.

Under Factor 4, Proctor indicated that if the purpose of the email is merely to explain the city attorney’s own past acts, not to advise the city council on some right or obligation, then the attorney-client privilege would not apply. The attorney-client privilege only protects the legal advice requested or provided, Proctor notes, and does not protect underlying facts relating to the subject matter.

Here we note that Proctor’s identification of the relevant factors in the hypothetical scenario should not be construed as Proctor making any claims about anyone’s professional conduct.

City Attorney’s Email

The hypothetical scenario is consistent with an actual recent scenario. How do the four relevant factors apply to the actual text and context of the email? We think that application of the four factors leads to the clear conclusion that the email in question was improperly withheld under Michigan’s FOIA under the exemption covering the attorney-client privilege.

City Attorney’s Email: Full Text

We’ve numbered the paragraphs for ease of reference.

1. From: Postema, Stephen
Sent: Fri 1/18/2013 5:03 PM
To: Postema, Stephen; *City Council Members (All)
Cc: Powers, Steve; Crawford, Tom
Subject: RE: Privileged and Confidential: FW: File: A05-01217 Litigation Updates Mayor and Council:

2. This is to inform you that I am back in the office after a restful vacation in Costa Rica with two of my children. However, I came back with a bad case of bronchitis. My body is clearly not used to all that rest.

3. It is always interesting to find what issues have arisen when one leaves. When I came in on Wednesday, I met briefly with Tom Crawford to discuss e a copy of the audit report. I had never seen the audit report, much less the paragraph on “reimbursement” issues, although Tom had discussed just in general terms the issue with me on December 31st when he asked about my contractual provisions and I gave him the appropriate paragraphs.

4. I will provide you additional information in a longer memo, but the audit report is obviously incorrect:

5. First, there is no violation of City policy as stated. Tom and I called the auditor on Wednesday to inquire what City policy he was referring to. (Steve Powers agreed that we should call the auditor.) The auditor didn’t know off the top of his head and reviewed the file. I spoke with him today and he admitted that there was no violation of City policy in the files he reviewed and the statement was incorrect. However, he is going to talk to his associates further, and let us know if he has missed anything. Any one-second review of the City’s mileage policy demonstrates that the auditor’s statement is incorrect.

6. Second, in any case, the terms of my agreement with the Council is my contract which was specifically negotiated. It calls for a car allowance (not a mileage allowance) and separately for travel reimbursement. This is no surprise to anyone. I have followed mileage reimbursement procedure for almost a decade. (Although I rarely file them even when entitled to.)

7. Amazingly, as to my contract, the auditor confirmed for me that he had not been informed of my contract, nor had he reviewed it, but that it would certainly be relevant. I told him I appreciated his candor.

8. Third, the fact that an auditor has put an incorrect statement in an audit report without even checking whether a City policy is in fact violated or whether another document (such as a contract) may govern the situation raises a host of concerns in my mind, but that is for Steve Powers and Tom Crawford to deal with in the bigger audit picture.

9. As to the specific issue of the incorrect statements in the audit report, Tom and I will be dealing with the auditor on this correction.

10. Fourth, the third sentence of the paragraph is also incorrect: “the City became aware of this situation during the year..” The City and the finance department has always been aware of my contract, as is the whole City, as the contract is FOIAed all the time and is posted on the internet.

11. Fifth, there seems to be a question about my decision to give up the car allowance. I thought about this issue in September as I completed my year end report. I then made this proposal in early October to Councilmember Higgins as I always have done. I did this because the raise I was due this past fall, would have put me in a situation where I had a similar salary to the City Administrator – but still a car allowance. If the City Administrator did not have a car allowance, I thought it best for me to forgo mine – just as a leadership issue. (Steve Powers wouldn’t have cared about the issue, as he is not like that, but I just thought this was the right thing to do.)

12. There was no discussion with the admin. Committee on my part about this first. I just thought it was a reasonable proposal that made good policy sense. It was not because of any issue or problem with a car allowance. Related to this, I have to manage a whole department, and I have other things to spend this car allowance money on in the upcoming budget as I am down two FTEs from when I started this job, and things are always tight.

13. Finally, I will provide additional information to the Council as we resolve this issue. In the meantime, I request that this information not be made public while this is ongoing. It is always a sensitive issue when an auditor has made a factually incorrect statement in an audit, particularly one stating that a violation of City policy has occurred. Tom Crawford will be providing a formal written response the audit, which will include this issue. Obviously, the audit committee will also be involved at the next audit committee meeting.

14. I’m sorry for delay from Wednesday when I reviewed this issue, but I wanted to get an understanding of what was going on here from the auditor’s side before I wrote you.

15. I have been informed that the reporting on this issue has not bothered to link the actual reimbursement policy at issue nor mention the actual terms of my contract. When appropriate I will address this issue also.

16. As always, please contact me with any questions or concerns.

17. Stephen K. Postema
Ann Arbor City Attorney

City Attorney’s Email: Ann Arbor Chronicle’s Factor 1 Analysis

Factor 1 requires that the privileged information be a communication, and there’s no question that the email is a communication. So it’s uncontroversial that this factor is satisfied.

City Attorney’s Email: Ann Arbor Chronicle’s Factor 2 Analysis

Factor 2 requires that the communication be made in confidence and not include third parties who aren’t clients.

The email includes at least two indications that it was sent in confidence. First, the subject line includes “RE: Privileged and Confidential.” The subject line also includes reference to “Litigation Updates.” Because the email itself doesn’t include litigation updates, it’s possible that the subject line label was inadvertently recycled from a different email and that the label was not intentionally applied. But even if the label was recycled, we think it’s almost certain that the label reflects an intention that the email was sent in confidence.

Second, the body of the email, in paragraph (13), includes a statement from Postema that “I request that this information not be made public while this is ongoing.” Here it’s not clear what the antecedent is of “this information.” The phrasing as a “request” – that the recipients of the communication could choose to honor or not – seems to allow for the possibility that this is not meant as an attorney-client privileged communication. That’s supported by the qualification “while this is ongoing,” which implicates that it would be appropriate at some future time to disclose the information – which doesn’t seem consistent with attorney-client privilege.

But all this hinges on the intended antecedent of “this information.” And “this information” might plausibly be the fact that, according to the city attorney, the city’s independent auditor has characterized the audit report as containing an inaccuracy. That is, the referent of the phrase “this information” is plausibly not the city attorney’s email itself, but rather some of the facts contained in it. Based on the email itself, and the subsequent assertion of attorney-client privilege, we think it’s fair to conclude that it was Postema’s understanding that the email was sent in confidence.

And based on The Chronicle’s experience, it’s the general understanding among most city officials that employees of the city – in particular, top level staff like the city administrator or the chief financial officer – are considered ongoing clients of the city attorney’s office. So the fact that Steve Powers and Tom Crawford are included doesn’t exclude the communication from attorney-client privilege.

We think it’s fair to conclude that Factor 2 is satisfied.

City Attorney’s Email: Ann Arbor Chronicle’s Factor 3 Analysis

Factor 3 requires that the lawyer be acting in his capacity as the client’s legal advisor. However, the majority of the email appears to be confined to Postema’s reports on the content of conversations with others – including the auditor, who is not Postema’s legal client – and Postema’s explanations of his past actions. It’s difficult to see how attorney-client privilege could be extended to Postema’s report of a conversation he had with a non-client. Further, the explanation for Postema’s desire to eliminate his car allowance from his contract – which involves Postema’s theory of how his car allowance might be perceived when contrasted with the city administrator’s lack of a car allowance – doesn’t appear to involve a legal analysis or legal advice, but rather Postema’s theory of good leadership. So by sending this communication, Postema does not appear in any way to be acting as the council’s legal advisor.

The only paragraphs that might conceivably be construed as containing legal analysis or advice are paragraphs (6), (7) and (8). In those paragraphs, Postema might be considered to be offering an implicit legal opinion that his employment contract governs whether there was a policy violation, and an implicit opinion that his contract allows for both a vehicle allowance and mileage reimbursements.

But to the extent that Postema is acting as the city council’s legal advisor by writing the email, then he would have an apparent conflict in rendering this legal advice – because his own interest in establishing that he did nothing wrong obviously conflicts with the city’s interest in having a clear understanding of the facts, so that appropriate policy changes can be undertaken if necessary.

The most generous approach, we think, is to assume that Postema was adhering to his ethical obligation not to provide legal advice to a client on a matter in which he had a conflicting personal interest, in which he could reasonably anticipate could conflict with the city’s interest. But that forces the conclusion that he was not acting in his capacity as anyone’s lawyer by writing the email; thus, he was not making a communication to which attorney-client privilege properly applies.

It’s fair to conclude that Factor 3 is not satisfied.

City Attorney’s Email: Ann Arbor Chronicle’s Factor 4 Analysis

Factor 4 requires that the purpose of the communication be to provide legal advice on some right or obligation. The evaluation of Factor 4 is similar to that of Factor 3. In evaluating Factor 3, we noted that the email does not appear to contain much – if anything – in the way of legal analysis or advice. It’s confined to Postema’s explanation of his past actions and his reports of conversations with others.

Because the underlying facts related to the subject matter aren’t protected by privilege, it’s difficult to see how any of Postema’s reporting of facts concerning the audit are protected by attorney-client privilege.

It’s fair to conclude that Factor 4 is not satisfied.

Frank Communication

In addition to citing the Michigan FOIA’s attorney-client privilege exemption in denying Postema’s email to The Chronicle, the city of Ann Arbor asserted another exemption allowed under the FOIA. That exemption allows a public body to withhold records that are communications internal to a public body – but only to the extent that they are non-factual and preliminary to a final determination of the body, and only to the extent that the public interest in disclosure is outweighed by the public body’s interest in frank communication.

First, it’s not clear how the “frank communication” exemption could apply to the entire text of the email. The exemption applies only to non-factual communication – and much of the content of the email recites factual information pertinent to the audit committee’s work. When a record contains information that does qualify for an exemption as well as information that does not qualify for an exemption, then the Michigan FOIA requires that the exempt information must be separated from the non-exempt information (i.e., it must be redacted), and the non-exempted information must be disclosed.

The only portions of Postema’s email that appear potentially to be eligible for redaction under Michigan’s FOIA are those portions where Postema appears to draw negative conclusions about the professional performance of the independent auditor. For example in paragraph (8), Postema writes:

… the fact that an auditor has put an incorrect statement in an audit report without even checking whether a City policy is in fact violated or whether another document (such as a contract) may govern the situation raises a host of concerns in my mind, …

If we confine ourselves to just those portions of the email where Postema is expressing his exasperation to the council about the auditor’s performance, the Michigan FOIA requires a balancing test to be applied: Does the city’s interest in frank communication among its agents outweigh the public’s interest in disclosure?

In weighing that balance, the city appears to have concluded that the city’s interest in shielding from public disclosure Postema’s attitudes toward the auditor’s performance outweighed the public’s inherent interest in disclosure. Obviously, we weighed the balance differently. We think the public interest is best served by revealing the character of the city attorney’s relationship to the city council as documented in his email.

And in his email, Postema appears to have selectively omitted factual aspects of his conversation with the auditor that tend to mitigate Postema’s apparent position. His position seems to be this: Even though there was no factual basis for doing so, the auditor still inserted the note about mileage reimbursements in his report.

What Postema omitted in his email to the council was a significant consideration, and one we think he certainly should have included – if his purpose was to apprise the council of relevant facts related to his investigation of how the audit was conducted.

In his email, Postema faithfully reported to the council the fact that the auditor had, in conversation with Postema, acknowledged the factual incorrectness of the phrasing in the report – the phrasing indicating that there’d been a violation of city policy. What Postema did not convey to the council was the fact that his conversation with the auditor, described in his email, included a statement by the auditor characterizing the situation as “illogical.” From the auditor’s email to Postema, recounting the same conversation [emphasis added]:

As I also stated in our conversations, from a business practices standpoint, our conclusion (with or without the existence of a policy) was it would be illogical and, therefore inappropriate, to make mileage reimbursements to persons having a car allowance. This conclusion is in the absence of knowledge of an agreement that would reasonably identify that payment of both mileage reimbursement and car allowance is acceptable and appropriate.

We think it’s to the city’s credit that this email from the auditor was included in the city’s official formal response to the auditor’s note.

But in his own communication to the council, Postema chose not to include this perspective on the auditor’s original conclusion – that the conclusion had been based on the idea that the mileage reimbursements were illogical, if not a violation of a written policy. At the January council audit committee meeting that followed Postema’s email, the auditor emphasized that there had not been a violation of a policy per se, because there was no written statement among the city’s policies that if an employee had a vehicle allowance, then the employee was not eligible for reimbursement for mileage.

For the auditor, it may have been self-evident that vehicle allowances are not compatible with mileage reimbursements – so self-evident that a written policy wouldn’t be needed. Whether Postema’s “travel” clause in his contract would cover ordinary mileage – for example, to drive to Lansing to represent the city in court – was not a question the city council audit committee wanted to entertain at its January meeting.

It’s worth noting that even in the revised version of the report, the auditor notes the problematic character of the reimbursements, observing that ”… in each instance the expense report was not subject to independent review and approval.” And the city’s own recommended policy revision includes a new procedure that would require the chair of the council administration committee to sign off on the mileage reimbursements for its two direct reports – the city attorney and the city administrator.

In addition to the omission of a relevant fact, Postema made an assertion in his email to the council that is factually wrong. In addition to the “violation of city policy” phrase, in paragraph (10), Postema disputes the accuracy of part of the auditor’s note:

Fourth, the third sentence of the paragraph is also incorrect: “the City became aware of this situation during the year..” The City and the finance department has always been aware of my contract, as is the whole City, as the contract is FOIAed all the time and is posted on the internet.

First, Postema’s reasoning here is muddled. Whether the finance staff had always been aware of his contract is not material to whether the city became aware of the issue of possibly inappropriate mileage reimbursements during the year.

Postema’s assertion is also refuted by the facts. In responding to a different request made under the FOIA, the city provided The Chronicle with a written statement from the auditor to a member of the city council’s audit committee. And that statement indicates that the issue of the city attorney’s mileage reimbursements had been brought to the auditor’s attention through a fraud risk questionnaire response, dated June 29, 2012, filled out by a member of the financial services staff.

It’s also significant that according to the auditor’s statement, the questionnaire response indicated that the issue had been raised previously, and that the city’s internal staff auditor had communicated the issue to the city’s CFO. This gives additional context to the auditor’s recommendation this year that the city consider having the internal staff auditor report directly to the city council audit committee, instead of to the CFO.

In any case, it’s evident that the auditor’s original report – stating that the city became aware of the situation during the year – was accurate, contrary to Postema’s assertion.

Conclusion: More Sunshine, Please

It’s in the public interest, we believe, for the public to understand the nature of the relationship between the current city council and the person who currently serves as the city attorney.

So we weighed the balance differently than the city did with respect to the “frank communication” FOIA exemption. We think it’s clear from Postema’s email that the city council – at least in this instance – did not receive a complete, accurate and unvarnished report from its city attorney about city business. And we think it’s important that the public be aware of that.

It’s not an appropriate use of Michigan’s FOIA exemptions to shield officials from embarrassment or to allow for needless denials of information. It’s our view that the city of Ann Arbor is routinely over-broad in its assertion of exemptions under the FOIA. And it’s our view that the city’s FOIA response procedures rely too heavily on input and control by the city attorney’s office. But we think it’s to the credit of the city of Ann Arbor that the administration is currently engaged in a revision to the administrative policy on FOIA response.

Given that it’s Sunshine Week, we call on the city council to weigh in on that administrative policy. We think the city council should weigh in on the basic overarching principle guiding the FOIA policy.

Currently, the guiding principle of the policy can be fairly paraphrased as follows:

(A) The city of Ann Arbor will produce no requested records, except those that the city is required by the FOIA to produce.

A better policy would be one that is biased in favor of disclosure. That guiding principle would be the following:

(B) The city of Ann Arbor will produce all requested records, except those records that the city is expressly prohibited from producing by some federal, state or local law.

We think (B) is a better starting point for an administrative policy. Even if the city council were to opt for (A), then the council should make that decision explicitly and openly as the governing body of the city – through a formal resolution put forth at an open meeting.

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