Ann Arbor city councilmember Christopher Taylor (Ward 3) also attended the meeting and answered questions from the commission. He had unexpectedly proposed the millage at the council’s Aug. 9 meeting, although action was postponed until Aug. 20.

The resolution would ask Ann Arbor voters to pay a 0.1 mill tax for four years to support public art. The public art commission oversees the current Percent for Art program, but had not previously been consulted about the proposal. AAPAC chair Marsha Chamberlin had only been informed of it a few days prior to its presentation to the council. [See Chronicle coverage: "Public Art Millage Mooted, Postponed," "Ballot Questions: Parks, Public Art Funding," and "Column: Two Questions on Public Art."]

The ballot question would read: “Shall the Charter be amended to limit sources of funding for public art and to authorize a new tax of up to one-tenth (0.10) of a mill for 2013 through 2016 to fund public art, which 0.10 mill will raise in the first year of levy the estimated revenue of $459,273?”

The public art millage would at least temporarily replace the city’s current Percent for Art program, which was approved by the council in 2007, but has been controversial. The program requires that 1% of the budget for any capital improvement project be set aside for public art – up to a cap of $250,000 per project. For the current fiscal year, it’s estimated that $320,837 in new revenues will be made available through this funding mechanism. That’s in addition to about $1.367 million in unspent funds that have accumulated from previous years.

This brief was filed from the basement conference room at city hall, 301 E. Huron, where the public art commission meeting was held. A more detailed report will follow: [link]

Is this art? Or is it a question about art? Or is it two questions about art? Or is it a lazy way to add a picture to a boring op-ed piece? One thing’s for sure: It cost $7.05 and was not paid for by a millage.

The ballot question rejected by councilmembers last week would have asked voters if they wanted certain kinds of long-term leases on city parkland to require the same voter approval. Much of the debate this time around centered on what voters meant when they approved the charter amendment in 2008.

Next week, at its Aug. 20 meeting, the council will weigh whether to place a different question on the Nov. 6 ballot – asking voters if they’d like to tax themselves an average of around $10 a year to pay for public art. [For details, including the ballot language and charter amendment, see: "Ballot Questions: Parks, Public Art Funding"]

If the council pursues this specific proposal for a public art millage, then we will face another challenge in discerning voter intent – a challenge even greater than the one posed by the parks charter amendment. But it’s a challenge that can be easily met – by asking voters to vote on two separate questions, instead of just one. 

The city already has a Percent for Art program, established by a 2007 ordinance, that requires 1% of all capital project budgets be set aside for public art – up to a limit of $250,00o per project. The program has generated a fair amount of controversy, partly because it’s not clear that it has a solid legal foundation. The city council also has considered but ultimately rejected a reduction in the percentage on three separate occasions since 2007.

The extraordinarily short time frame for consideration of the current public art millage proposal has led to considerable confusion about the legal effects of different millage vote outcomes. The short time frame is due to the fact that councilmember Christopher Taylor (Ward 3) unveiled the proposal for the first time at the council’s Aug. 9 meeting. It was not a proposal that had come through the city’s public art commission, though commissioners subsequently called a special meeting for Aug. 15 to consider it.

Here’s the ballot question that Taylor proposed:

Shall the Charter be amended to limit sources of funding for public art and to authorize a new tax of up to one-tenth (0.10) of a mill for 2013 through 2016 to fund public art, which 0.10 mill will raise in the first year of levy the estimated revenue of $459,273?

The corresponding charter language would be [emphasis added]:

Funds for Public Art
SECTION 8.24. In addition to any other amount which the City is authorized to raise by general tax upon the real and personal property by this Charter or any other provision of law, the City shall, in 2013 through 2016, annually levy a tax of up to one-tenth (0.10) of a mill on all taxable real and personal property situated within the City for the purpose of providing funds for public art, including but not limited to the permanent and temporary acquisition, maintenance and repair of works of art for display in or on public structures or sites and/or as part of or adjacent to public streets and sidewalks, and performance art on City streets, sidewalks or sites. Except for funds previously raised, set aside, allocated or otherwise designated to be used for public art, including such funds in the July 1, 2012 to June 30, 2013 fiscal year budget, and except for funds that are received by grant, gift, bequest or other donation to the City for public art, for the duration of this millage, the City shall not raise, set aside or designate funds for public art in any other manner. This millage also shall not preclude the grant, gift, bequest or other donation to the City of works of art.

If approved by voters, the proposal would, for a four-year period, suspend the Percent for Art ordinance requirement of the current set-aside for public art. If the millage were to fail, the ballot language would not eliminate or reduce the Percent for Art program. Indeed, if the millage were to fail, the ballot language would have no legal impact on the existing Percent for Art program.

The amounts of money per year that the two approaches would generate are roughly comparable – but at around $450,000 a year, the millage would generate somewhat more than the Percent for Art program has historically yielded, on average.

A key difference between the two approaches – Percent for Art versus a millage – is the way the funds can be used. Casually speaking, the Percent for Art funds – which are tied to capital projects – can be spent only on permanent, “monumental” types of art. Funds generated from a millage could be spent on nearly anything that someone could plausibly claim is art – including temporary works, or performance pieces.

So what would it mean if someone votes no on the proposed single ballot question?

A no vote could mean: “I do not support public spending on art.” That’s too bad, because a no vote implicitly supports leaving the Percent for Art program in place.

A no vote could also mean: “I support public spending on art – but only through the Percent for Art program.” That’s too bad, because some elected officials are prepared to analyze a failure of the millage as a lack of support for public spending on art and are willing, on that basis, to eliminate the Percent for Art program.

What would it mean if someone votes yes on the single ballot question for the public art millage?

A yes vote could mean: “I support public spending on art – even though I don’t think a millage is the best way to fund it. I’m voting yes because I don’t want my no vote to be misconstrued as a lack of support for public spending on art.” That’s too bad, because there’s no guarantee that a no vote would be interpreted by the city council as a lack of support for public art.

A yes vote could mean: “I do not support public spending on art – but if we’re going to spend public money on art, then it should be in a way that offers reasonable flexibility.” That’s too bad, because you’re agreeing to let the hand of local government reach into your pocket and take $10 a year out of it to pay for art.

What I think we might have learned from the park sale/lease charter amendment debate is this: What voters mean is something we’re going to argue about – no matter how simple and straightforward it might seem at first glance.

But even at first glance the public art millage ballot question does not seem simple and straightforward. We’ve been told that the state attorney general has approved the language as to its form. But it’s not clear (to me, anyway) that it meets the statutory standard requiring that the question is confined to a single proposition. Two propositions appear to be included in the single question: (a) Shall we enact a public art millage? and (b) Shall this millage be the only source of public art funding for the duration of the millage?

Even if the single question meets the attorney general’s review standard, I think it’s still a bad idea to place that in front of voters. Instead, it would be possible to ask voters clearly, in two separate questions, what they’d like to do. This approach would not require exploring the contents of the electorate’s collective mind to discern what voters meant. The two questions could be these: (1) Shall we enact a public art millage? and (2) Shall we continue to set aside funds for public art under the city’s Percent for Art ordinance?

If you don’t like the idea of public money being spent on art, then vote no on both questions. If you’d like both forms of funding (i.e., to increase current levels of funding), then vote yes on both questions. If you like one but not the other form of using public money to pay for art, then vote for one but not the other.

That’s the kind of choice it makes sense for the city council to give us on the ballot. If it takes a bit longer to work out the details of giving voters that kind of choice, then it will be worth the extra time. If the question doesn’t go on the Nov. 6 ballot then it can just as easily be placed on the ballot at a future election.

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At its Aug. 9 meeting, the Ann Arbor city council considered three different charter amendments for inclusion on the Nov. 6 ballot. Two were for millages, and a third was for a restriction on the contractual powers of the city with respect to parkland.

The council voted unanimously to place on the ballot a renewal of the city’s parks maintenance and capital improvements millage at the rate of 1.1 mills. One mill is $1 for every $1,000 of taxable value on a property. So for a house worth $200,000, with a state-equalized value of $100,000, a 1.1 mill tax would cost that property owner $110 per year. A renewal would run from 2013-2018 and raise about $5 million next year.

Examples of park maintenance activities include forestry and horticulture, natural area preservation, park operations, recreation facilities, and targets of opportunity. Capital improvement projects would cover parks, forestry and horticulture, historic preservation, neighborhood parks and urban plazas, park operations, pathways, trails, boardwalks, greenways and watersheds, and recreation facilities. The city’s park advisory commission (PAC) had voted unanimously nearly two months ago at its June 19, 2012 meeting to recommend placing that millage renewal before voters.

But one day before the council’s Aug. 9 meeting, PAC had voted unanimously against recommending that another park-related question be placed on the ballot – one that would have asked voters if they wanted to amend the city charter to require a referendum to lease parkland for non-park or non-recreational use for longer than five years. PAC was able to consider a recommendation only because the council had postponed the measure at its July 16, 2012 meeting.

And at its Aug. 9 meeting, the city council did not meet the 7-vote threshold on the 11-member body to place that charter amendment on the ballot. It got just four votes – from Marcia Higgins (Ward 4), Mike Anglin (Ward 5), Jane Lumm (Ward 2) and Stephen Kunselman (Ward 3). Sabra Briere (Ward 1), who had co-sponsored the original resolution, did not vote for it, after modifications to the wording had failed to win the council’s approval.

Not originally on the council’s Aug. 9 agenda, but added at the start of the meeting, was a resolution to place a ballot question before voters in November that would ask them if they want – at least temporarily – to change the way that funds are accumulated to pay for public art in the city. Currently, funds must be set aside as part of most capital improvement project budgets – 1% up to a limit of $250,000 per project.

The ballot proposal on public art would levy a 0.1 mill tax for a four-year period – which translates roughly to $450,000 per year. In its current version, the wording of the proposal would suspend the collection of Percent for Art funds under the city’s ordinance just for the four-year period of the millage. So if voters approved the public art millage this year, and then failed to approve a millage renewal four years from now – either because the council did not place a renewal on the ballot, or voters rejected the renewal – the Percent for Art ordinance would again require that funds from capital project budgets be set aside for public art.

The reaction from councilmembers to the proposal from Christopher Taylor (Ward 3) was generally positive; however, there was considerable dissatisfaction expressed – at the meeting and subsequently – with the secretive nature of the work that had produced it. Taylor’s apparent goal in placing it on the agenda at all was to reveal the content of the proposal, without asking his colleagues to vote on it. Taylor asked for postponement of the resolution after reading aloud a speech about it. The council agreed unanimously to postpone action until its next meeting, on Aug. 20.

Voting on Aug. 20 to place the question on the ballot would allow for some public discussion before taking action on that issue, while still meeting the statutory deadline for delivering ballot language to the Washtenaw County clerk.

The public art commission has called a special meeting for Aug. 15 in order to weigh in on the subject.

Part 1 of this council meeting report deals just with these ballot questions. Part 2 will handle other business items at the Aug. 9 meeting.

Public Art Millage

The council was asked to consider a resolution that would place a question on the Nov. 6 ballot, asking Ann Arbor voters to pay a 0.1 mill tax for four years to support public art.

Public Art Millage: Content

The ballot question would read:

Shall the Charter be amended to limit sources of funding for public art and to authorize a new tax of up to one-tenth (0.10) of a mill for 2013 through 2016 to fund public art, which 0.10 mill will raise in the first year of levy the estimated revenue of $459,273?

The corresponding charter language would be [emphasis added]:

Funds for Public Art
SECTION 8.24. In addition to any other amount which the City is authorized to raise by general tax upon the real and personal property by this Charter or any other provision of law, the City shall, in 2013 through 2016, annually levy a tax of up to one-tenth (0.10) of a mill on all taxable real and personal property situated within the City for the purpose of providing funds for public art, including but not limited to the permanent and temporary acquisition, maintenance and repair of works of art for display in or on public structures or sites and/or as part of or adjacent to public streets and sidewalks, and performance art on City streets, sidewalks or sites. Except for funds previously raised, set aside, allocated or otherwise designated to be used for public art, including such funds in the July 1, 2012 to June 30, 2013 fiscal year budget, and except for funds that are received by grant, gift, bequest or other donation to the City for public art, for the duration of this millage, the City shall not raise, set aside or designate funds for public art in any other manner. This millage also shall not preclude the grant, gift, bequest or other donation to the City of works of art.

One mill is $1 for every $1,000 of taxable value on a property. So for a house worth $200,000, with a state-equalized value of $100,000, a 0.1 mill public art tax would cost that property owner $10 per year. In Ann Arbor, a rule of thumb for the amount of revenue generate by 1 mill is $4.5 million. So a 0.1 mill public art tax would generate roughly $450,000 annually.

In place since 2007, the city’s Percent for Art program requires that 1% of the budget for any capital improvement project be set aside for public art – up to a cap of $250,000 per project. More than $1 million in Percent for Art revenues have been expended to date, primarily for the Herbert Dreiseitl water sculpture in front of city hall.

By year, here’s how much money has been set aside for public art by the Percent for Art program, according to information provided to The Chronicle by public art administrator Aaron Seagraves:

FY 08    $318,689    
FY 09    $521,457    
FY 10    $450,166    
FY 11    $451,213    
FY 12    $334,660    
FY 13    $320,837 (estimated)

-
So the proposed millage would generate somewhat more money per year than the Percent for Art program has generated, on average, over its first six years of existence.

If approved by voters, the public art funds from a millage would not necessarily be restricted to permanent “monumental” type art, as the current Percent for Art funds are. The additional flexibility afforded by a millage-based public art program might include the ability to fund performance art or support artist-in-residency programs. It would also enjoy the endorsement of a referendum, eliminating the criticism that residents had not voted on the question of the Percent for Art program.

Public Art Millage: History

As far back as Feb. 1, 2009 at a council Sunday caucus, Marcia Higgins (Ward 4) publicly expressed her concern about the large amount of money the program was generating. Later that year, at a Dec. 7, 2009 meeting, the council gave initial approval to an ordinance revision that would have reduced the allotment from 1% to 0.5%. But at the council’s following meeting, on Dec. 21, 2009, the council voted down the ordinance revision, with councilmembers citing art as key to Ann Arbor’s identity.

At the Aug. 9 meeting, Ann Arbor resident Thomas Partridge peruses a Detroit Free Press article about the Detroit Institute of Arts millage that won voter approval on Aug. 7, 2012.

In connection with approval of the fiscal year 2012 budget in May 2011, Higgins brought forward a budget amendment that would have directed the city attorney to prepare an ordinance amendment to reduce the percentage in the public art ordinance from 1% to 0.5%. That attempted amendment failed on a 4-7 vote. Six months later, the council again gave initial approval to a reduction in the percentage allocated from 1% to 0.5%. But in its Dec. 5, 2011 vote, the council ultimately opted to make only a minor tweak to the ordinance, without changing the basic percentage.

During deliberations on May 7, 2012 about a piece of public art to be commissioned for the city’s new justice center, Stephen Kunselman (Ward 3) mentioned the possibility of establishing a millage just for public art. Kunselman has been a vocal critic of the funding mechanism of the Percent for Art program, based on the idea that it is not legal to appropriate public utility funds or dedicated millage funds for other purposes to public art, as the city’s Percent for Art ordinance does.

The council voted down a proposal by Kunselman on April 2, 2012 to request a legal opinion on the question from city attorney Stephen Postema.

Public Art Millage: Analysis

The effect of passing the public art millage would be to suspend the accumulation of funds for public art purposes under the city’s current Percent for Art ordinance. The language that does that is this:

… for the duration of this millage, the City shall not raise, set aside or designate funds for public art in any other manner.

Christopher Taylor has stated that the reason that the Percent for Art ordinance cannot be repealed with the same ballot resolution is a state law restricting ballot proposals to a single question. [From an email Taylor has sent to constituents of his]:

… state law requires that ballot measures be one-subject, Yes/No questions. For this reason, we cannot ask the voters to approve or reject a millage AND effect an ordinance repeal in the event of a No vote.

The state law in question is the Home Rule City Act:

A proposed charter amendment shall be confined to 1 subject. If the subject of a charter amendment includes more than 1 related proposition, each proposition shall be separately stated to afford an opportunity for an elector to vote for or against each proposition. If a proposed charter amendment is rejected at an election, the amendment shall not be resubmitted for a period of 2 years.

Taylor’s email to constituents continues:

That said, after a No vote, one could easily imagine an effort to wind down the program on the grounds that the people had spoken and rejected taxpayer support for the arts.

Taylor does not indicate that he would support such an effort to “wind down” the Percent for Art program – only that he can imagine such an effort. Based on the results of the Aug. 7 primary election, the necessary votes to repeal the Percent for Art ordinance might exist on post-general-election council in November – even without Taylor’s vote to repeal it. That scenario would allow Taylor to maintain that he’d never voted in a way to place funding for public art in jeopardy.

But if the public art millage were approved by voters, then the ballot initiative mandates that funds would not be set aside for public art through the Percent for Art ordinance for the duration of the millage. And if the public art millage were not approved by voters, then Taylor appears to be indicating that the council would be inclined to repeal the Percent for Art ordinance – even if that took place without his vote.

If the Percent of Art ordinance will not persist after the millage vote election – no matter what the outcome – it is not clear what argument would exist against repealing of the ordinance before a millage vote.

With the Percent for Art ordinance in place during the millage vote, the intent of voters in casting yes and no votes is not necessarily clear. A no vote might mean, “I support public art funding, and I think that the best way is through the Percent for Art ordinance, not this millage that I’m being asked to approve.” On the other hand, a yes vote might mean, “I do not support the use of public money on public art, but if it’s going to be spent, then I prefer that the funds be flexible enough to support performance art.”

If the city council were to eliminate the Percent for Art funding mechanism before the millage vote – through a partial rescinding of the ordinance (keeping the parts that establish the public art commission) – it would give clarity to the question on the ballot and to voters’ intent.

However, repeal of the Percent for Art ordinance before the millage vote would likely require Taylor’s vote of support for the repeal – given the current composition of the council.

Public Art Millage: Adding to the Agenda

Christopher Taylor (Ward 3) had added the item to the agenda at the start of the meeting, though he seemingly had not wanted or planned to do so, and had intended only to share the content of the resolution with his colleagues, without placing it on the agenda formally. Taylor’s demeanor at the table as he added the item, and the fact that he was unprepared to name the title of the agenda item, is consistent with the idea that Taylor added the item to the agenda only because of pressure from a council colleague just prior to the meeting.

According to city council rules, an item can only be added to the agenda with a 3/4 majority, and typically a separate vote is taken on the action to add the item, and then on the amended agenda. However, mayor John Hieftje, who chairs city council meetings, skipped the vote on the agenda addition.

The secrecy that Taylor maintained around the proposal was a point of friction for some councilmembers. Responding to an email from a WDET reporter asking for an interview, Jane Lumm wrote back to the reporter:

When I became aware that a ballot initiative was to be added (again, at the start of the council meeting), I did attempt to obtain information about the initiative from [city attorney] staff, but was told they were instructed and “not permitted to discuss” the matter. (That’s a verbatim statement.)

Responding to an emailed query from The Chronicle, Taylor refused to say whether he’d instructed the assistant city attorney to keep information from other councilmembers, but defended that kind of secrecy as an appropriate application of the attorney-client privilege:

… the ACP [attorney-client privilege] exists to incentivize clients to consult with their lawyers. Client knowledge of the law, its boundaries and opportunities is a social good. In this context, we want council members to consult with the attorney’s office – we want members to enlist the assistance of counsel early and often. If Member Jones thought that Attorney Miller would cavalierly discuss the subject of their conversation – the legal advice given to Jones – then that would have a chilling effect. In this case, Jones would not readily consult with counsel and the public would be harmed. It strikes me, therefore, that the attorney who declines to speak with one council member about legal advice given to another council member does so in the public interest.

By way of comparison, the Legislative Services Bureau – the group of attorneys who help legislators in Lansing do research, draft bills and the like – is bound by strict confidentiality rules with respect to their work for different legislators. So if a state legislator wants to work on a new bill and shield that work from other legislators, then the rules of confidentiality for the LSB would allow a legislator to keep that work secret, as Taylor did.

Public Art Millage: Taylor’s Remarks

The secretive nature of the work was one aspect Taylor had anticipated as objectionable, based on the prepared speech he read aloud. Although he had not previously indicated publicly his intent to bring forward this proposal, he portrayed the initiative as one that had been arrived at collectively:

I view this proposal without a sense of authorship, but rather as a collective product – the sum total of the many conversations we’ve had at this table and in and among the public.

Another foreseeable objection to the timing of the proposal was that input from the public art commission had not yet been sought.

The proposal did not originate with the commission; when The Chronicle reached Marsha Chamberlin, chair of Ann Arbor’s public art commission, by phone on the afternoon of Aug. 9, she told The Chronicle that she had not heard anything about the specific proposal until a few days ago, when she’d received a phone call to get her reaction to the concept. The issue has not been discussed at AAPAC’s monthly meetings, which are regularly covered by The Chronicle.

Taylor appeared to have anticipated the same criticism that had been made against the timing of the parks charter amendment proposal – that the park advisory commission had not yet been consulted. So Taylor indicated that he hoped to receive input from the public art commission, as part of the public input the council would receive before the council voted on the question of putting an art millage in front of voters.

He then contrasted the function of the public art commission as compared to the park advisory commission, pointing out that the public art commission is primarily a body that implements policy, not one that advises the council on policy as the park advisory commission does.

In order to meet before the council’s Aug. 20 vote, the commission would need to call a special meeting – because its next regular meeting is scheduled for Aug. 22. And subsequently the public art commission did call a special meeting, for Aug. 15 at 4:30 p.m. in the basement of city hall.

Taylor’s remarks also included the standard arguments for using public money to pay for art.

Public Art Millage: Council Deliberations

After Taylor’s immediate move to postpone the issue, councilmembers weighed in with generally supportive comments. Stephen Kunselman (Ward 3) told his colleagues that he’d already submitted his request for co-sponsorship as soon as he’d found out about the resolution. “Kudos to councilmember Taylor, I’m so, so, so pleased that you have taken the lead on this.” Kunselman said he’d support the resolution, saying it’s exactly what the community needs to move forward with public art.

Mayor John Hieftje followed up on Taylor’s attempt to portray the effort as “collective,” pointing out that several other councilmembers had previously floated the idea. He noted that the restrictions that are placed on the funding due to their source make it difficult to fund the kind of art that people would like to – and that’s the fundamental reason why the millage is needed.

Tony Derezinski (Ward 2), who serves on the public art commission, noted that the commission had bemoaned the restrictions on the use of funding. The restrictions are onerous, he said, but the millage is a good alternative to that. He felt that the public art commission would want to understand the reasons for the proposal.

Sandi Smith (Ward 1) appreciated the postponement, because she wanted the public art commission to have a chance to weigh in on it – to be consistent with the council’s approach to the parks charter amendment, when the council had sought input from PAC before voting. Hieftje assured Smith that the public art commission would be able to meet, saying that the commission was going to meet anyway to talk about something else. [It's not clear what he was referring to, as there had not been any special meeting scheduled at that point.]

Sabra Briere (Ward 1) supported the postponement, because the council had not had a chance to look at the proposal, and the public needed to weigh in as well. It’s not desirable for the council to look like the proposal was being rushed onto the ballot.

Jane Lumm (Ward 2) supported the postponement, as well as the resolution. But she complained about the lack of a heads up about the proposal. She told Taylor it would have been a nice gesture to have included those councilmembers who also had been interested in the topic.

She called Taylor’s announcement the “most surprising thing” she has seen since she has returned to the council [following her election in November 2011, after having served in the mid-1990s]. She wanted to see the council work in a more open, collaborative, cohesive fashion. Analyzing the resolution as partially a response to the Aug. 7 primary elections, Lumm concluded, “It’s truly amazing what a few elections will do.”

Carsten Hohnke (Ward 5) indicated support for the postponement. He felt the point of introducing it and then postponing it was to seek the kind of collaboration that Lumm had mentioned. So rather than having the resolution on the agenda on the Wednesday before the next council meeting, it would be available to the public sooner. He looked forward to the conversation over the next couple of weeks and hearing from residents about what they thought.

Outcome: The council voted unanimously to postpone action on the public art millage resolution until Aug. 20.

Contractual Powers: Sale, Leasing of Parkland

Two other ballot-related issues were on the Aug.9 city council agenda, including a possible ballot proposal to amend the city charter with respect to the leasing of parkland.

Concerns about parkland sale are not peculiar to Ann Arbor. Michigan state law addresses the question of parkland sale; and other communities in Michigan have their own recent history with controversial parkland sales. The question of amending the parkland protection clause in Ann Arbor’s city charter dates back to at least 2006.

So this section begins with some general historical background, continues with Ann Arbor’s specific history, before characterizing the public commentary and council deliberations at the Aug. 9 meeting.

Sale, Leasing of Parkland: General Background

Michigan’s Home Rule City Act addresses the question of parkland sale by stipulating that cities don’t have the power to sell parkland, except under certain conditions [emphasis added]:

117.5 Prohibited powers.
Sec. 5. (1) A city does not have power to do any of the following: … to sell a park, cemetery, or any part of a park or cemetery, except where the park is not required under an official master plan of the city; [Home Rule City Act, Act 279 of 1909]

Before November 2008, the charter of the city of Ann Arbor mirrored that statutory language as follows:

Limitations on Contractual Power
SECTION 14.3
(b) The city shall not sell any park or cemetery, or any part thereof except in accordance with restrictions imposed by law. [Pre-2008 Ann Arbor city charter]

The idea that city parkland could be sold by a city – by first removing it from the official master plan – was tested (successfully) by the city of Novi around a decade ago in connection with the settlement of a legal dispute. The city owed a developer a considerable sum, and sought to meet that financial obligation by transferring 95 acres of parkland to the developer. The Oakland County circuit court ruled that the transfer could only meet the statutory requirement if the 95 acres were first re-designated in the city’s master plan as not parkland.

So that’s what the city of Novi did, beginning the process with review by its planning commission:

After a full hearing, the Court entered an Order on December 11, 2001, which held that, while most aspects of the settlement concept were approved, in order to provide the full approval of the Court, the following action could be taken: If the city’s Master Plan is amended so as to reflect a designation of the property to be transferred in a manner other than “park” . . . it is the determination of this Court that, without further action on the part of any party, the land in question may be transferred as contemplated in the [city council Resolution of October 15, 2001] in conformance with MCL 117.5(e) [the Home Rule Cities Act]. [Excerpt from Jan. 9, 2002 city of Novi planning commission minutes]

Sale, Leasing of Parkland: Ann Arbor’s Background – 2006-2007

In 2006, Ann Arbor’s park advisory commission (PAC) passed a resolution recommending to the city council that a charter amendment be placed before voters, asking them to change the city charter’s clause on parkland sale. The resolution contemplated by PAC offered the potential for some confusion, because the text includes not only the clause to be changed, section 14.3(b), but also section 14.3(a) – even though no change was proposed to 14.3(a).

Section 14.3(a) imposes a requirement that real estate transactions – generally, not just related to parks – require an eight-vote majority on the 11-member council. Leases are among the real estate transactions that require the eight-vote majority . So glancing quickly at the 2006 PAC resolution might lead to the unwarranted conclusion that the PAC resolution proposed some change in the charter with regard to leasing of parkland.

Here’s the language that PAC, in its Aug. 15, 2006 resolution, recommended that the council add to the city charter [added text in italics]:

Limitations on Contractual Power
SECTION 14.3.
(a) The city shall not purchase, sell, or lease any real estate or any interest therein except by resolution concurred in by at least eight members of the council.
(b) The city shall not sell any park, cemetery, or any part thereof except in accordance with restrictions imposed by law and with the approval of a majority of the electors voting in a regular or special election. No park, or any part thereof, identified in the official master plan of the city, or any subsequent acquisition to the park system, or any part thereof, identified as part of the official master plan of the city after January 23, 2006, shall be severable from the city park system and the official master plan of the city. [PAC resolution from Aug. 15, 2006]

A year later, the city council considered placing a ballot question in front of voters. The text of the charter initially considered by the city council at its Aug. 20, 2007 meeting was more succinct than the language recommended by PAC, did not include the issue of severability and underwent some further refinement at the meeting, which resulted in the following:

Limitations on Contractual Power
SECTION 14.3.
(a) The city shall not purchase, sell, or lease any real estate or any interest therein except by resolution concurred in by at least eight members of the council.
(b) The city shall not sell without the approval, by a majority vote of the electors of the city voting on the question at a regular or special election, any city park or land acquired by the city for park purposes (whether or not currently designated as a park), cemetery, or any part thereof. [Amended language considered in city council resolution from Aug. 20, 2007]

The council then rejected placing the question before voters – on 2-7 vote. The two yes votes were from then Ward 1 councilmembers Ron Suarez and Bob Johnson.

Sale, Leasing of Parkland: Ann Arbor’s Background – 2008

A year later, the council again considered that kind of ballot question on a charter amendment protecting parks. This time, the text of the resolution included just section 14.3(b) – because 14.3(a), which involves general real estate transactions (like leasing), had never been at issue. The council considered the following text for the charter on Aug. 7, 2008.

Limitations on Contractual Power
SECTION 14.3.
(b) The city shall not sell, without the approval by a majority vote of the electors of the city voting on the question at a regular or special election, any city park or land in the city acquired for park purposes, (whether or not currently designated as a park), cemetery, or any part thereof. [Initial resolution considered by the city council on Aug. 7, 2008]

The council postponed until Aug. 18, 2008 a vote to place the question on the ballot. And on Aug. 18 the council amended that text as follows:

Limitations on Contractual Power
SECTION 14.3.
(b) The city shall not sell, without the approval by a majority vote of the electors of the city voting on the question at a regular or special election, any city park or land in the city acquired for park purposes, (whether or not currently designated as a park), cemetery, or any part thereof. [Final resolution considered by the city council on Aug. 18, 2008]

The council voted to place a question on the ballot for November 2008. Voters in November that year decisively approved the change to the charter – 80% voted yes.

Compared to the pre-2008 version of the charter, here’s how the current (2012) language stacks up [added text in italics and deleted text in strikethrough]:

Limitations on Contractual Power
SECTION 14.3.
(b) The city shall not sell, without the approval by a majority vote of the electors of the city voting on the question at a regular or special election, any city park or land in the city acquired for park, cemetery, or any part thereof , except in accordance with restrictions imposed by law.

Sale, Leasing of Parkland: Ann Arbor’s Background – 2012

The city council formally considered a resolution at its July 16, 2012 to place a question on the Nov. 6, 2012 ballot, asking voters if they would like to revise the city charter further [proposed additions indicated in italics]:

Limitations on Contractual Power
SECTION 14.3.
(b) The city shall not sell, lease, license or contract for any non-park or non-recreational long term use, without the approval, by a majority vote of the electors of the city voting on the question at a regular or special election, any city park, or land in the city acquired for park, cemetery, or any part thereof. For purposes of this subsection long-term shall be defined as a period greater than 5 years.

Two weeks before the July 16 meeting, one of the resolution’s sponsors, Jane Lumm (Ward 2), had alerted her council colleagues that she was intending to bring the question forward. At that point, she’d been working with Mike Anglin (Ward 5) on the resolution. At the PAC meeting held on Aug. 8, Sabra Briere (Ward 1) told commissioners that when she saw a draft of the resolution, she was interested in supporting it, but wanted some “whereas” clauses deleted. Briere felt those “whereas” clauses introduced needless contentiousness. The clauses in question included these:

Whereas, subsequent to the November 2008 passage of the amended section 14.3(b) section of the Ann Arbor City Charter the City has proposed that alternative long-term uses for parkland would be considered and issued an initial RFP for Huron Hills that included the phrase, “at the time of execution of the SALES contract” in the letter to respondents, and the final RFP did not use the words “sale” or “lease”, but “agreement” and “contract for services”, and
Whereas, a sale, lease, agreement, or contract for services are not dissimilar to the extent that they essentially permit the City to enter into a long term arrangement that potentially involves development at a city park and, in so doing, violates the spirit and intent of the voter approval requirement, and
Whereas, the voter approval requirement was not intended to permit the City to utilize alternative terminology to avoid the requirement to present a parkland sale question to voters, but was intended to provide the necessary protection for parkland, and
Whereas, the City continues to utilize language other than the words “sale” or “sell” to permit long-term leases and alternative uses of parkland to avoid the voter approval and referendum requirement,

When the “whereas” clauses were deleted, Briere told PAC, she added herself as a sponsor to the resolution that came forward on July 16, 2012. The council voted to postpone its vote until Aug. 9, amid questions that Briere had raised about interpretation, as well as a desire to have PAC weigh in on the issue.

At PAC’s Aug. 8 meeting, commissioners voted unanimously not to recommend that the council pursue the charter amendment that would require a popular referendum on long-term leasing of parkland for non-park uses.

Sale, Leasing of Parkland: Public Commentary

Public commentary at the Aug. 9 city council meeting featured many of the same speakers who’d addressed PAC the previous day.

Rita Mitchell asked the council to join her as park stewards – and in that capacity, she asked for their continued support for parkland as “a treasured resource in our community.” Parks are valuable to future generations, she said. That’s why the resolution is important. She reminded councilmembers that she’s appeared before them in the past – because she’s concerned about the potential precedent that various projects might set. Parkland has been targeted for permanent transformation, she said – as a parking structure or a train station [at Fuller Road] and to allow a private management group to use parkland for private profit [an allusion to the Miles of Golf proposal for operation of Huron Hills golf course]. Memoranda of understanding (MOUs), long-term leases and various legal agreements other than a direct sale set a precedent to circumvent the referendum requirement in the event that the city desired to sell city parkland, she said.

Dark green patches indicate city of Ann Arbor parkland.

That allows the city to dispose of parkland using a more casual method of transfer. She believes that the council should consult the public regarding the initial basic question of whether to change the ownership or the use of parkland to something else. If the council wants to consider a change in the use of parkland, she suggested, the council should make a good case for it and convince voters.

The point of the resolution, Mitchell said, is to reinforce the public nature of park ownership. She ventured that referenda would come into play only rarely, as part of the routine management of city parkland. The resolution was initiated due to specific projects, she allowed – and that’s how she knew that such protection was needed for all of the city’s parkland. Members of PAC had raised good questions, she said, about what would constitute a park use versus a non-park use of land as specified in the proposed charter amendment.

Diane Giannola told the council she had two things to say about the proposed charter amendment. First, she said, there is “nothing wrong, improper, devious, unethical or inappropriate” about using parkland for a public purpose that benefits the rest of the city. Parks are not just about nature – they’re also about recreation, athletics, entertainment and community.

She contended that the local chapter of the Sierra Club would like to convince residents that parkland should be exclusively nature areas. But that’s not been the intent of residents, Giannola said. She called that an overreach by a private group with its own agenda. She would welcome some repurposing of parkland as long as it benefits residents. She would not welcome a vote on decisions about every change in use. She felt that a train station built on top of an already paved parking lot that lies between a road and the University of Michigan hospital is in the best interests of the residents of the city.

She called it patently false that the intent of voters in 2008 was to prevent the city council from repurposing or leasing parkland. She had voted for the 2008 charter amendment because she thought she was preventing the balancing of the city budget through parkland sale. She did not think it was about changing the definition of a sale. She objected to the idea that anyone should be able to interpret the intent of voters in a way that was false.

Alan Jackson introduced himself as a park advisory commissioner. [He was recently appointed to replace Sam Offen, who was term limited.] He had been asked to summarize PAC’s conclusions from the previous day’s meeting of the commission.

PAC had voted unanimously against that resolution, he reported. That’s not to say that the commissioners are not passionate about the parks, he said, and they felt that stricter restrictions on the use of parkland is worth careful consideration. PAC felt that the drafting of the ballot language was unnecessarily hasty, he said. PAC felt that a more careful process would yield more predictable results, and would allow citizens to understand the implications better and to develop better informed opinions. Some commissioners also questioned the need for a remedy, given that none of the “egregious transfers” – which people have been concerned about – have actually occurred. There are a number of gray areas, regarding the definition of non-park and non-recreational uses of land. Who would arbitrate the definition of those terms?

There are also a number of unintended consequences, Jackson said, with regard to some institutions that are near and dear to him, giving the example of Leslie Science and Nature Center and other groups that have arrangements with the city. The charter amendment could have a chilling effect. PAC feels that the city’s exposure to litigation could be increased by this charter amendment, he said. PAC wondered what the charter amendment would accomplish, given that the city council would be the arbiter of what constituted park and non-park use.

Nancy Shiffler introduced herself as chair of the Sierra Club Huron Valley Group. She began by responding implicitly to remarks from Diane Giannola, whose public commentary had come a couple of turns earlier. For the last 30 years – during the time Shiffler has been involved with the group – the local Sierra Club has been engaged in protecting the park system, both natural areas and recreational areas. A fundamental question raised by the Fuller Road parking structure and now the rail station is this, she said: Does the city council have the authority to change the use of city parkland to some other use, through lease agreements, contracts or some re-designation?

The council has not sought to answer that question as it has discussed the Fuller Road site, Shiffler said. Instead, the city has been “backing in” to setting a precedent that has the potential to subvert the assumption that voters make when they vote to support parks millages – that the parks they voted to support will continue to be parks. The charter amendment would establish a process by which the council would be forced to answer that fundamental question. The language of the charter can’t anticipate every proposal that might come before the council, she allowed, but she encouraged the council to put the question before the voters.

Sale, Leasing of Parkland: Council Deliberations – Initial Round

Jane Lumm (Ward 2) introduced the resolution, stressing that it was unchanged from the version she’d provided to the rest of the city council on July 9. She reviewed much of the historical context and the intent of resolution. She noted that the previous day, the city’s park advisory commission had met and voted not to recommend its support.

Councilmembers Jane Lumm (Ward 2) and Christopher Taylor (Ward 3).

The 2008 change was a solid step forward in strengthening protection for parks, she said. But since that time, it’s become apparent that “loopholes” still exist that need to be closed in order to ensure that the clear intent of the voters in 2008 is to be realized. The 2008 charter amendment addressed only the sale of parkland, but did not address other mechanisms, such as leasing or long-term contracts. That could result in the outcome that the 2008 amendment was trying to prevent, she contended – conversion of parkland to a non-park or non-recreational use without the approval of residents. The goal of the current amendment, she said, is to close that loophole.

She pointed out that the five-year span that defines “long-term” in the proposed amendment corresponds to the parks planning cycle. She stressed that the proposed amendment doesn’t mean that no city park could ever have its use changed, but rather that voters would need to decide the question.

The intent, she said, is not to require the shorter-term arrangements the city has with various organizations to be subjected to voter approval – as those arrangements are part of ongoing management of the parks system.

Mike Anglin (Ward 5) described PAC as the protectors of the parks. He described the previous day’s discussion as lively and diverse. But with any piece of legislation, he said, there are uncertainties. He contended that the intent of the legislation back in 2008 was to make the restrictions tighter [than just "sale" of parkland], but he said there was concern that the tighter restrictions would not have been approved for the ballot by the city council.

Anglin described the amount of energy and money that had been invested by citizens to oppose different proposals that have come forward, citing the Miles of Golf proposal for the operation of Huron Hills golf course as an example.

The choice is between having a law that has a high standard, or whether the council says to voters that they have to come together, get organized, and “fight your city.” The council should be fair with the citizens and be fair with the proposals. As a hypothetical, he suggested that perhaps he wanted to donate a merry-go-round to Veterans Memorial Park and it would cost $2 million – he’d pay for all of it. Would that be supported? The charter amendment would help us understand that, he said. He ventured that parks uses continually change.

He suggested that the charter amendment was not perfect, and alluded to the medical marijuana ordinance, which was not perfect, describing that situation as “total chaos.” Based on the charter amendment, Anglin said, if the city chooses to go ahead with locating a rail station at Fuller Road, then the charter amendment would require asking voters. It might be that voters approve it, he said. He also contended that the proposed charter amendment would require a proposal like Miles of Golf had made for operation of Huron Hills to get voter approval. He also maintained that a possible removal of Argo Dam would also require voter approval.

Sabra Briere (Ward 1) followed up on Anglin’s statements about different projects that would and would not require a voter referendum, and ventured that some councilmembers have different understandings of what the proposed resolution would accomplish. She asked assistant city attorney Mary Fales, who had helped draft the language, how the proposed charter amendment would have applied to various past proposals, or hypothetical future proposals, if it had then been in place. In bulleted list form, here are responses by Fales to the topics Briere asked her about:

• Building Argo Cascades: The proposed charter amendment would not have applied, because it’s a recreational use.
• Removing Argo Dam: If the purpose of removing it was to improve the waterway for recreational purposes, then the proposed charter amendment would not apply, because the use would be recreational.
• Ice Cube operation of Veterans Memorial Park ice rink or Miles of Golf operation of Huron Hills golf course: Because those parks would still be used for ice rink and golf course services, the proposed charter amendment would not apply.
• Closing Huron Hills golf course and using it for wild land and sledding: The proposed charter amendment would have no bearing on closing a city park – because it affects only the contractual powers of the city. If the city administration or park advisory commission recommended that a golf course be used in a different recreational format, then that could be done without a voter referendum – even under the proposed charter amendment.
• Building a parking structure on a park: A surface lot or a structure could be incidental to the customary use of the land as a park – because it creates a place for people to be able to use the park safely, so no referendum would necessarily be required.
• A 15-year lease with University of Michigan for a parking structure at Fuller Road: If the purpose is to commercialize the property or for some other purpose that is not for park or recreational use, and the contract is longer than five years, then it would require a vote of the people.

Both mayor John Hieftje and Margie Teall (Ward 4) appeared to want to explore the idea that if the commercial purpose of a parking facility would generate revenue supporting the parks [as is the case with the current arrangement between UM and the city for the surface parking lot at Fuller Road], then that arrangement might be construed as a park purpose. But the question was never framed clearly enough to get a specific response from Fales.

Assistant city attorney Mary Fales.

Stephen Kunselman (Ward 3) indicated that he’d be supporting the proposal. A 99-year lease for the Fuller Road parking structure would be outrageous, he said. That went beyond any reasonable expectation about the use of the city’s parkland. [.pdf of MOU with University of Michigan. It does not appear to stipulate any term lengths, but rather an intent to develop some kind of agreement.]

Kunselman felt that the five-year period was reasonable, based on the park planning cycle. There could be multiple renewals of shorter arrangements, so he did not see that as a problem. He did see a problem with a 99-year lease.

Kunselman allowed that they’d been hearing things about voter intent in 2008 – from both sides of the debate. He was not looking at it from a past perspective, but rather was looking toward the future. He did not want to see a future council trying to lease parkland for 99 years. One attempt had been seen, he said, and he doubted it would be tried again anytime soon. But because it has happened once, it could happen again, because it’s a typical response, he contended.

Responding to a standard argument that the Fuller Road site is currently a paved parking lot, he pointed out that it had not always been a parking lot – as he’d played soccer there as a kid back in the 1980s. In the past, Hieftje had made campaign pledges to add additional soccer fields, Kunselman contended – and this was a chance to do that, if the city wanted to convert the Fuller Road parking lot to a soccer field. That would take away the “piddly” amount of money that the lease arrangement with UM generates – about $30,000 he said. That’s small compared to what UM charges its employees for parking passes, he said, and he ventured that UM is making money off the city’s parking lot.

Kunselman figured that if the voter intent wasn’t there, they would vote down the charter amendment: “Let’s just give them that opportunity.” He didn’t think the city would harm itself, the public or the relationship with UM by doing that.

Responding implicitly to remarks from Diane Giannola about repurposing parkland – as long as it benefits the residents – Kunselman asked: Did a 1,000 car parking garage at Fuller Road offer a benefit to residents or rather to UM?

Sale, Leasing of Parkland: Council Deliberations – Amendment

Sabra Briere (Ward 1) told her colleagues that she’d sent around a draft of a proposed amendment. She said she did not think the charter amendment is a terrible thing to put on the ballot – but we have to be honest about what it accomplishes, she said. She felt like there was confusion in the public about whether a proposal like the one that Miles of Golf had made to operate Huron Hills would require a voter referendum. [Anglin and Lumm feel it would require a referendum; assistant city attorney Mary Fales indicated it would not.]

A very informal poll of Briere’s constituents showed that more than 37% believe the proposed amendment would protect parks from bad decisions by the city council, she said. “But I have to tell you, it wouldn’t, as drafted,” she cautioned.

She did not think there’s any way to amend the charter to prevent the council from making a mistake.

She then proposed a substitute amendment for the charter language:

Limitations on Contractual Power
SECTION 14.3(b)
The city shall not, without the approval by a majority vote of the electors of the city voting on the question at a regular or special election, do any or all of the following with any city park or land in the city acquired for a park or cemetery or with any part thereof: (1) sell any such land; (2) lease, license or contract for any non-park or non-recreational use any such land for a period longer than 5 years; (3) contract for the operation of any such land for non-park or non-recreational use for a period longer than 5 years; (4) contract for the construction of any building on any such land, except as is customarily incidental to the principal use and enjoyment of such land.

Briere said that in her personal view, this was a legitimate effort to look at what the city could do and to worry about whether the city could contract for recreational services and what the implications of that would be. The answer is that the city could maintain its current relationships with vendors at the farmers market, and also with Project Grow, the Leslie Science and Nature Center, and Community Action Network, she said. But it means there could not be automatic renewals. Leases for non-park use would have to come back to the council at least every five years, she said.

The text about customarily incidental use, Briere said, she’d taken from the allowable uses of parks as public land, as described in the city’s zoning ordinance.

She noted that it meant that the city council could still contract with a builder to construct a new swimming pool or a skatepark or a new ice rink, without having a referendum on it. But the city might have a problem if the city wanted to build a new senior center on a park, she ventured. And the city might have a problem, she said, if it wanted to contract to build a train station on parkland. She indicated that with all the additional language, she had wanted to make the language accomplish what people thought it already did.

Sandi Smith (Ward 1) expressed the view that even with Briere’s changes, there are still some unclear issues, and she didn’t think that’s a good way to dive into something. At the PAC meeting the previous day [which Smith attended], she observed that at least two people spoke about the Leslie Science and Nature Center. For an organization of that small size, running a campaign to make sure an arrangement for use of the parkland is approved by voters takes away from the core mission of the center, she said – which is about educating young citizens about nature. And if the voters didn’t approve it, then what?

Smith also pointed to the possibilities for things we haven’t thought about – like new land that the city is thinking about developing along the Huron River. If the city had the opportunity to develop a restaurant, there’s no way a small-business owner would make that kind of investment on a five-year basis. She allowed that Briere’s amendment made things slightly clearer, but didn’t feel she could support the amendment.

Hieftje picked up on Smith’s point about a restaurant. He reported that he’d talked to three restaurateurs about it in the last couple of weeks. He asked them to consider the possibility that the city could make some land available for a restaurant in the Huron River corridor. They said: Great! And they said they could imagine that people would come from a long way away to eat at such a restaurant. The restaurateurs indicated that for them to bring a development proposal would cost hundreds of thousands of dollars – and that would be necessary, because people won’t vote based just on a concept. They would not be willing to risk that on a vote of the people, or base it on a five-year arrangement – which depending on the city council might not be renewed. At some point, he said, folks around this table are elected to make decisions. He appreciated Briere’s amendment but did not see that it achieved enough clarity.

Lumm felt that the example of a restaurant had been floated before at the Huron Parkway bridge near the golf course, and that residents had said that that’s the kind of repurposing that they opposed. She felt that it’s important to know from voters what they think about such a proposal. Lumm then responded implicitly to Smith’s description of the PAC meeting, saying she [Lumm] was there for the duration. [Her point appeared to be that Smith had left a bit before the conclusion of the meeting.]

Lumm did not understand what is so difficult to understand about the proposal. It does restrict what can be done with parks, she allowed, but not if it stays within what any reasonable human being would say is an acceptable parks and recreation use. She felt that the changes proposed by Briere were redundant and unnecessarily complicating. She felt the original language was clear, concise and had the right level of detail.

Carsten Hohnke (Ward 5)

Kunselman responded to comments from Smith and Hieftje about efforts to commercialize parks along the river. He pointed out that the national park system has concessionaires for many of the national parks. The city could own the building and then contract out the operation, if you want to have a restaurant down on the riverfront. That reduces the risk to the vendor, he pointed out. So those goals can be accomplished, he said.

Carsten Hohnke (Ward 5) said he appreciated Briere’s efforts with the amendment – but for him, it made an unclear bad policy a much more clear worse policy. He felt that asking PAC to look at the proposal was exactly the right thing to do. The discussion by PAC highlighted that the language in the amendment was not capturing what we’re trying to capture. He called it a classic example of “hard cases making bad law.”

Hohnke also suggested that all the significant decisions take time – and each year it’s possible to turn over half the council, so voters have had the chance to turn over this council three times over since the Fuller Road memorandum of understanding was signed. So he did not support the amendment or the underlying resolution.

Anglin described the amendments as covering a lot of “what-ifs.” It’s not possible to build in language that covers every possible situation, he said. But it’s possible to start a process for how to treat the city parks. He reminded his council colleagues that he had voted against the PROS plan [the city's Parks and Recreation Open Space plan], because he did not think that the city was protecting its own land as well as it was protecting private investments.

Margie Teall (Ward 4) felt that the system of representative democracy has worked – it worked with the Huron Hills proposal from Miles of Golf. Staff had been asked to bring ideas to the table and they had brought ideas to the table. The golf course has never made any money, she said. The process worked for the people who wanted that land to be protected. She didn’t feel there was a need for Briere’s amendment or the charter amendment, so she’d be voting against both of them, she said.

Briere said her efforts to go through the hypotheticals was an effort to make sure she’d considered as many possibilities as she could. The real question, she said, is whether you view this an improvement of the city charter, and whether the language belongs in the city charter. It’s not just whether the council reassures residents that the council values parks by giving them an opportunity to affirm that they value parks. She believed that we all value parks.

If you feel it’s not an improvement to the city charter, she said, she respected that viewpoint. If you feel it’s an improvement because it clarifies things about the contractual limits on the council, that’s also fine, she said. She’d heard that PAC’s concern was not whether the city could contract, or whether the city could lease, or even whether the city could use parkland for non-park purposes. Their concern was to have a coherent process to follow that would put PAC’s considerations before other considerations. The idea would be that when someone had an idea about how parkland would be used, then that would go to PAC first.

Kunselman addressed the issue of representative democracy. He gave the example of Sylvan Township – a legislative body that moved ahead with a project that put the community into an extreme amount of debt. None of the members of the township board are still on the board. The charter amendment, he said, was to protect citizens from “representative democracy gone awry.”

“It’s important that we protect our parks from ourselves as councilmembers,” he said. He called the 2008 charter amendment redundant, given the Home Rule City Act, but Ann Arbor had gone ahead with that amendment because other communities had found a way around the state statute.

Christopher Taylor (Ward 3) allowed that the amendment increases the specificity and scope of the provided language. He shared PAC’s concerns, and the amendment creates opportunities for those concerns to be exacerbated. So he’d decline to support the amendment, he said.

Outcome: Briere’s amendment failed, with support only from Briere herself and Kunselman.

Sale, Leasing of Parkland: Council Deliberations – Final

Back on the discussion on the main motion, Lumm asked assistant city attorney Mary Fales if the charter amendment would allow renewal of leases in 5-year increments. Fales essentially confirmed that was the case. Lumm also got Fales to confirm that she’d looked at all the various existing contractual arrangements the city had with different groups, related to the parks – like the rowers at Bandemer, the farmers market, Leslie Science Center and the like.

Lumm returned to her basic point – that even though some interpretation is required, the language is clear, straightforward and focused on how parkland is used. The leases that arise in the course of normal operations, she said, would not trigger a vote. She did not feel the standard is hard to apply.

Responding to the idea that the ultimate rejection of the Miles of Golf proposal showed there was no reason for the charter amendment, Lumm contended that it had been rejected only because it wasn’t a good financial deal for the city. She contended that a proposal like Miles of Golf’s could not have been accepted without prior approval of the voters – based on the language of her proposed charter amendment. [However, Fales had indicated that it would not have triggered a referendum, based on the fact that it would have maintained a recreational use.]

Lumm raised an implicit specter that voters might not approve the parks maintenance and capital millage [which the council placed on the ballot later that evening], if the council did not place the charter amendment before voters. She saw no better way to complement that “ask” than by reassuring voters that the city would be good stewards of the “precious assets of the parks.”

Anglin allowed that the council has discussed the issues and they’re well understood. He described Ann Arbor as a place where people have the free time and expertise to participate in the community, and it makes the community better. The park system is the envy of many towns, he said. In other communities, they’re taking little bits of green away, which Ann Arbor has not yet begun to do. He ventured that in a poorer community, parkland would have already been lost.

Mike Anglin (Ward 5)

In light of Lumm’s statement about Miles of Golf, Briere came back to the past Miles of Golf proposal by asking Fales again to confirm that if the city had contracted for management of the existing course, or a converted 9-hole course with a driving range, the proposed charter amendment would not have triggered a popular vote – Fales confirmed that was the case.

Sandi Smith noted that the council postponed a vote on July 16 in order for PAC to be consulted. That body of citizen volunteers had voted unanimously against placing the ballot question before voters, she said, so she wanted to honor that group by following their advice.

She’d heard terms like “steward” and “sacred trust” and she had faith that future councils will also be good park stewards. She noted that since 2000 Ann Arbor has added 151 acres to the park system and no parkland has been lost or repurposed. Since 2007, she said, 44.5 acres have been added. And just this year 10 acres have been added to the park system. That’s a pretty good record, she said. Since 2007 the acreage added represents almost $1 million in taxable value, and that’s about $45,000 in general fund revenue that the city is forgoing. She asked, “Who is the park steward?” She did not want to tie the hands of future councils on ways the city can grow the park system, or find a way to maintain the parks. She pointed to the longer mowing cycle the city had to use last year (19 days), noting that the grass was knee-deep in some places. The city was not able to maintain the soccer fields it has, she contended.

Smith did not want a future council to be in a situation where it could work with a commercial entity to solve a problem, but could not do that without taking it to the voters. The amendment would not allow the city to be as “nimble” as it needs to be. And if it’s a non-presidential election, she wondered how many people might get to the polls to make these decisions. She would trust future councils, she said.

Christopher Taylor began by saying that the Fuller Road Station was never contemplated as a “lease” but rather as a “use agreement.” That’s an important legal distinction, he contended. [In the context of standard principles of statutory interpretation that would apply to a city charter – namely, their ordinary and plain meaning as would have been understood by the electorate, not the way a real estate attorney would understand them – it's not obvious that the distinction Taylor is drawing between a lease and a use agreement would be relevant.]

He addressed the suggestion that the charter amendment is necessary in order to save residents from the need to advocate for their positions. He felt that it is completely appropriate that residents gather on questions of public interest – and it’s not something to be “feared or bemoaned or coddled.” He didn’t think the language of the resolution, if passed, would be a disaster, but did not feel it would be good policy or good for parks. He called it a “solution in search of a problem.” So he opposed the resolution for the reasons cited by PAC – reviewing each of them.

Taylor then turned his attention to the idea that this charter amendment would finally redeem the intent of the voters in 2008. Aside from the fact that the word “sale” could not be more plain, he contended, and that voters are presumed to have read the ballot language that they passed, he reported that he’d learned at PAC’s meeting the previous day that the council specifically removed the word “lease” from the ballot language that went before the voters in 2008. In light of this specific and intentional deletion of “lease” from the 2008 ballot language, he said, the continued assertion that “lease” was part of the initiative’s intent is “demonstrably false.” Its knowing repetition, he claimed, is “simply shocking.” It may be a good idea or a bad idea, he said, but to suggest that opposition to the current proposal is contrary to the demonstrated will of the people is patently false.

Councilmembers Sabra Briere (Ward 1) and Christopher Taylor (Ward 3).

By way of additional background, Taylor did not make clear at the council table how he reasoned from the city council’s reported action of deleting the word “lease” back in 2008 to conclusions about what some voters wanted out of the initiative. Responding to an email query from The Chronicle, Taylor identified Rita Mitchell’s remarks to PAC on Aug. 8 as the source of his contention that the council had consciously acted to delete “lease” from the charter amendment proposal – and conceded he could not cite “chapter and verse” of relevant documents. However, The Chronicle did not discern in Mitchell’s remarks any claims about deletion of the word “lease.” In her remarks, Mitchell’s mention of the 2008 proposal included the outcome of the vote – which was 80% in favor – and her statement that: “The value of adding the terminology that we’re talking about today will provide that extra protection that I believe voters did want.”

Taylor might have confused Mitchell’s comments with those of Jane Lumm – whose remarks at the Aug. 8 PAC meeting included the following: “The language that was brought forward in 2008 and approved by PAC included ‘lease.’ Council chose to amend it and remove that language.”

However, based on The Chronicle’s review of meeting minutes from PAC and the city council during the relevant time frame, it does not appear that the council ever had before it a proposal that included the word lease in Section 14.3(b) – despite Lumm’s characterization. [See the background subsection earlier in this report for the possible source of the confusion.] Taylor maintained in his emailed response to The Chronicle that in his remarks made at the council table he did not draw a negative inference about residents themselves, but rather their tactics.

Taylor also contended that his conclusion that residents’ claims are demonstrably false – about the intent of voters in 2008 – could be derived from the plain meaning of “sale” alone. Taylor did not respond to a follow-up question about the possibility that voters in 2008 might have included a 99-year lease as part of their notion of sale.

At the council’s Aug. 9 meeting, Hieftje wrapped up the deliberations by contending that the council is sometimes punished even for considering options. He would put his record on parks up against any elected official in the state, he said.

Outcome: The resolution received support only from Marcia Higgins, Mike Anglin, Jane Lumm and Stephen Kunselman. Sabra Briere, who pointedly paused when the roll call came to her turn, voted no.

The vote eliminated the chance of placing that type of ballot question before voters on Nov. 6. There have been some smattering of conversations about the possibility of placing the charter amendment before the voters, perhaps in May, through a petition drive, which would require around 4,000 signatures.

However, an easier path to another consideration of the issue might result from the new composition of the city council that will result from the Aug. 7 primary election and subsequent Nov. 6 general election. Democratic primary winners Sally Petersen in Ward 2 and Sumi Kailasapathy in Ward 1, assuming they win the general election, would almost certainly replace no votes with yes votes. And the version that Briere proposed might win her vote. That would give the council the seven votes it needs to put the measure on a future ballot.

Parks Maintenance, Capital Improvements Millage

The council also considered placing a question on the Nov. 6 ballot that would renew the parks maintenance and capital improvements millage at the rate of 1.1 mills.

The city’s park advisory commission had voted at its June 19, 2012 meeting to recommend that the council put the millage renewal on the ballot. The current 1.1 mill tax expires this year. A renewal would run from 2013-2018 and raise about $5 million next year. The recommended allocation of revenues is 70% for park maintenance activities, and 30% for park capital improvement projects. Of that allocation, up to 10% can be shifted between the two categories as needed.

Examples of park maintenance activities include “forestry and horticulture, natural area preservation, park operations, recreation facilities, and targets of opportunity,” according to a staff memo. Capital improvement projects would cover parks, forestry and horticulture, historic preservation, neighborhood parks and urban plazas, park operations, pathways, trails, boardwalks, greenways and watersheds, and recreation facilities.

PAC was first briefed about the millage renewal at its March 22, 2012 meeting. At the time, PAC chair Julie Grand – who served on a working group to strategize about the renewal – said concerns about the economic climate were a major reason why an increase wasn’t being recommended. City parks staff and PAC members subsequently held several public forums about the renewal that were sparsely attended. Technically, the rate of 1.1 is an “increase” inasmuch as the currently authorized millage rate has been reduced from 1.1 mills to 1.0969 by the Headlee Amendment.

The proposed ballot language reads as follows: “Shall the Charter be amended to authorize a tax up to 1.10 mills for park maintenance and capital improvements for 2013 through 2018 to replace the previously authorized tax for park maintenance and capital improvements for 2007 through 2012, which will raise in the first year of the levy the estimated total revenue of $5,052,000.”

Deliberations were brief at the Aug. 9 council meeting, as Christopher Taylor (Ward 3) gave the background on the millage. He’s one of two council representatives to the park advisory commission. Sabra Briere (Ward 1) noted that it’s a “frugal” millage in that it does not ask for an increase above the originally approved amount – but she noted that costs have increased.

Outcome: The council voted unanimously to place the parks maintenance and capital improvements millage on the Nov. 6 ballot.

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

Next council meeting: Monday, Aug. 20, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [Check Chronicle event listings to confirm date]

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The strategy pursued by the resolution’s sponsor, Christopher Taylor (Ward 3), was to reveal the details of the proposal on Aug. 9, but to seek its immediate postponement. Voting on Aug. 20 to place the question on the ballot would allow for some public discussion before taking action on that issue, while still meeting the statutory deadline for delivering ballot language to the Washtenaw County clerk.

The fact that the proposal was being actively discussed and would be coming before the council was not known to many councilmembers or council watchers until mid-day on Aug. 9, the same day as the meeting. It’s expected that the public art commission will have a chance to meet before the city council decision, to provide feedback to the council. To do that, the commission would need to call a special meeting – its next regular meeting is scheduled for Aug. 22.

The ballot question would read: “Shall the Charter be amended to limit sources of funding for public art and to authorize a new tax of up to one-tenth (0.10) of a mill for 2013 through 2016 to fund public art, which 0.10 mill will raise in the first year of levy the estimated revenue of $459,273?”

The public art millage would replace the city’s current Percent for Art program, which was approved by the council in 2007, but has been controversial. The program requires that 1% of the budget for any capital improvement project be set aside for public art – up to a cap of $250,000 per project. More than $1 million in Percent for Art revenues have been expended to date, primarily for the Herbert Dreiseitl water sculpture in front of city hall.

As of June 30, 2012, an additional $1,367,148 was available in Percent for Art funds collected from previous capital projects. And based on upcoming capital projects, another $320,837 in Percent for Art revenues is anticipated in FY 2013. That includes estimated funding from the following sources: water fund ($55,797); stormwater fund ($20,608); street millage ($112,700); sewer fund ($93,610); parks millage ($11,647); and administration ($26,475).

The public art millage proposal does not stem from the public art commission. Marsha Chamberlin, chair of Ann Arbor’s public art commission, told The Chronicle in a phone interview on Aug. 9 that she had not heard anything about the specific proposal until a few days ago, when she’d received a phone call to get her reaction to the concept. Today, she’d been informed by the mayor’s office that the proposal would be brought forward at the council’s meeting later this evening.

One mill is $1 for every $1,000 of taxable value on a property. So for a house worth $200,000, with a state-equalized value of $100,000, a 0.1 mill public art tax would cost that property owner $10 per year. In Ann Arbor, a rule of thumb for the amount of revenue generate by 1 mill is $4.5 million. So a 0.1 mill public art tax would generate roughly $450,000 annually.

If approved by voters, the public art funds from a millage would not necessarily be restricted to permanent “monumental” type art, as the current Percent for Art funds are. The additional flexibility afforded by a millage-based public art program might include the ability to fund performance art or support artist-in-residency programs. It would also enjoy the endorsement of a referendum, eliminating the criticism that residents had not voted on the question of the Percent for Art program.

During deliberations on May 7, 2012 about a piece of public art to be commissioned for the city’s new justice center, Stephen Kunselman (Ward 3) mentioned the possibility of establishing a millage just for public art. Kunselman has been a vocal critic of the funding mechanism of the Percent for Art program, based on the idea that it is not legal to appropriate public utility funds or dedicated millage funds for other purposes to public art, as the city’s Percent for Art ordinance does. The council voted down a proposal by Kunselman on April 2, 2012 to request a legal opinion on the question from city attorney Stephen Postema.

However, the possible proposal on a public art millage on Aug. 9 came from Christopher Taylor (Ward 3), not Kunselman.

As of mid-afternoon on Aug. 9, no item on a public art millage had been added to the council’s online agenda. When Taylor led off the meeting with the change to the agenda, it was met with some grumbles from Marcia Higgins (Ward 4) and Jane Lumm (Ward 2), because of the late change – which caught most councilmembers off guard. But councilmembers were generally enthusiastic about the proposal’s content.

For a full report of council’s deliberations, see Chronicle coverage: “Ballot Questions: Parks, Public Art Funding.”

Councilmember Sandi Smith (Ward 1) asks to be called on during the July 16 meeting. (Photos by the writer.)

The council considered a resolution that would have placed a question on the Nov. 6 ballot about a charter amendment affecting city parkland. The amendment would require a voter referendum not just for the sale of parkland, but also for leases or other contracts that have a practical effect similar to a sale.

The majority of the council wanted to allow time for the city’s park advisory commission (PAC) to weigh in before taking council action. To facilitate that timeline, PAC is convening a special meeting on Aug. 8 to consider the matter. The council’s postponement was until Aug. 9 – its next regularly scheduled meeting. That’s a Thursday instead of the usual Monday, pushed back because of the Aug. 7 primary election.

Some supporters of the possible amendment had hoped to bring the matter to a council vote before the August primary, because they wanted incumbent council candidates to be judged by the electorate based on their vote on the parkland ballot question. That led Sandi Smith (Ward 1), who is not seeking re-election to a third term, to call the resolution on the ballot question a “poorly disguised political stunt.”

Other park-related items on the agenda included approval of a $89,560 contract with Wally Hollyday Skateparks for the design and construction oversight of a skatepark to be built in the northeast corner of Veterans Memorial Park. The council also gave initial approval to the rezoning of two parcels recently acquired by the city for expansion of the Bluffs Nature Area at 1099 N. Main St., north of Sunset Road. On final approval, both parcels will receive the PL (public land) zoning designation. The city expects the additional land to make the entrance to the nature area more accessible.

The Leslie Science and Nature Center will get $115,309 worth of improvements to create accessible pathways at the city-owned site – the council approved a contract with JB Contractors Inc. for that work. The center is operated by a separate independent nonprofit on land and buildings that are owned and maintained by the city of Ann Arbor.

The possibility of a mixed-use park and art center at the city-owned 415 W. Washington property was given a chance to move forward, with the council’s authorization of $50,000 in general fund money to pay for physical surveys of the building on the property. The building, which would potentially house a space for working artists, would need environmental, hazardous materials and topographic surveys done, even if a decision were ultimately made to demolish the building.

Open space outside the city got a boost from the council’s acceptance of $396,900 in federal funds for the purchase of development rights (PDR) on properties in Webster and Superior townships. The federal funds will be matched with city funds from the open space and parkland preservation millage, which supports the city’s greenbelt program.

The wetlands at Plymouth Parkway Park that were impacted by last year’s railroad embankment washout along Plymouth Road will be restored through a $97,687 contract with Fonson Inc. authorized by the council. The funds will come from the city’s park maintenance and capital improvements millage.

Only tangentially related to parks was the council’s approval of the site plan for the Maple Cove development. Located on 2.96 acres at 1649 N. Maple, north of Miller Road between North Maple and Calvin Street on the city’s west side, the plan calls for combining two sites – 1649 N. Maple and 1718 Calvin – and demolishing an existing single-family home and detached garages there. Two 3-story apartment buildings would be built with a 64-space parking lot. The project also includes building a private street to serve seven new single-family houses near Calvin Street.

The parks connection to Maple Cove is that the city requested a $26,660 contribution from the developer to support the city’s parks – a voluntary contribution, with the amount determined by formula. The developer has declined to make that contribution.

The council also voted to appoint John Seto as chief of police and head of safety services – he’s now permanently in charge of policing the city, including city parkland. Seto has served since April as interim in the wake of Barnett Jones’ retirement.

In other action, councilmembers voted to suspend the use of construction unity board (CUB) agreements in construction contracts – after voting to restore their use earlier this summer. On the CUB issue, the council has been responding to a changing landscape of law, as state legislation is passed and court decisions are handed down.

Park Lease Ballot Question

The council considered a possible ballot question on a charter amendment affecting city parkland. It would require a voter referendum not just for the sale of parkland, but also for leases or other contracts that have a practical effect similar to a sale.

Ultimately, the council voted to refer the issue to the city’s park advisory commission (PAC).

Councilmembers Jane Lumm (Ward 2) and Stephen Kunselman (Ward 3) confer after the meeting.

The chair of that commission, Julie Grand, had written in an email to mayor John Hieftje on July 12 that she felt “… it is critical for PAC to provide a formal resolution prior to any council vote. I therefore propose to find an alternative time for PAC to hold an open work session with councilmembers [Jane] Lumm, [Mike] Anglin and [Sabra] Briere [co-sponsors of the resolution] in accordance with the deadlines imposed on ballot initiatives prior to council’s vote on this matter.”

In the last two months, the nine-member PAC has seen the departure of three long-time members, because of term limitations: Gwen Nystuen, Sam Offen and David Barrett. Nystuen and Offen were replaced by Ingrid Ault and Alan Jackson. Nominated at the council’s July 2 meeting and confirmed on July 16 was Barrett’s replacement – Bob Galardi, a former Ann Arbor Public Schools administrator.  The two city council representatives to PAC – Christopher Taylor (Ward 3) and Mike Anglin (Ward 5) – are non-voting ex officio positions.

The special meeting by PAC is scheduled for Aug. 8 at 3 p.m. at city hall. The Ann Arbor city council has until its second meeting in August to put various questions before voters on the Nov. 6, 2012 ballot. A resolution placing a question on the ballot requires a seven-member (2/3) majority on the 11-member council.

The draft language before the council on July 16 was: “Shall Section 14.3(b) of the Ann Arbor City Charter be amended to require voter approval for long-term (greater than 5 yrs) non-park or non-recreational uses of parkland within the city while retaining the section’s current requirement for voter approval of the sale of any city park, or land acquired by the city for a park or cemetery?”

If approved by voters, the charter would be changed to read [added language in italics]: The city shall not sell, lease, or contract for any non-park or non-recreational long-term use, without the approval, by a majority vote of the electors of the city voting on the question at a regular or special election, any city park, or land in the city acquired for park, cemetery, or any part thereof. For purposes of this subsection long-term shall be defined as a period greater than 5 years.”

The existing charter provision, which deals only with the sale of parkland, had been approved in November 2008 by a 81%-19% margin of voters (42,969 to 9,944).

Michigan’s Home Rule City Act already lists among a city’s prohibited powers: “… to sell a park, cemetery, or any part of a park or cemetery, except where the park is not required under an official master plan of the city …”  The council voted to place the question before voters in 2008 over dissent from councilmember Marcia Higgins (Ward 4) and former councilmember Leigh Greden.

That year, the council had consciously settled on wording that included just selling, as opposed to leasing. In an Oct. 31, 2008 Ann Arbor News article, mayor John Hieftje was quoted as follows: “From time to time, we’ve thought about how nice it might be to have a restaurant near the river. I think it’s something people would really enjoy … That would be impossible if the ballot measure was expanded to include leasing.”

Park Ballot Question: Public Commentary

Several people spoke in favor of the resolution that would place a ballot question before voters, including two candidates for city council who are competing for seats in the Democratic primary. One person spoke against the resolution.

James D’Amour spoke on behalf of the Sierra Club Huron Valley Group. A fundamental value of the Sierra Club is protection of parks, he said. The Sierra Club stands fully behind the effort of councilmembers Jane Lumm and Mike Anglin to “close a loophole” in the charter amendment passed by voters in 2008. [The council resolution was also co-sponsored by Sabra Briere, but she was not mentioned by D'Amour.]

He called the parks a trust meant for future generations. D’Amour described city actions in connection with Huron Hills golf course and Fuller Park since 2008 as demonstrating a fundamental betrayal of that trust, he contended. It could be argued that the events that occurred were within the letter of the law, he said, but the long-term arrangements that were contemplated were a violation of the intent of the voters in 2008. He asked councilmembers to support the resolution.

Rita Mitchell also encouraged the council to vote for the resolution, because it provides support for parkland – which is jointly owned by all Ann Arbor taxpayers, she said, and is enjoyed by residents and visitors. She pointed to the significant environmental benefit that parkland provides to the city as a whole. She said the 2008 charter vote shows that citizens do want a voice in how the city uses parkland. Subsequent actions have challenged the spirit, if not the letter of the charter language. As an example she gave the plan for a large parking structure and train station at Fuller Park. If a good case can be made for land transfer or different use of a park, then that case can be made to the “real owners of the land,” she said.

Lawrence Baird described the proud history of natural area preservation and parkland protection in Ann Arbor going all the way back to 1920 when Huey Eli Gallup was the city’s first parks superintendent and created the first parks development plan. Since then Ann Arborites have placed a high priority on protecting open space and parkland. Baird reminded the council of Washtenaw County’s natural area preservation millage which Ann Arbor citizens had helped pass and renew. He reminded the council of the city’s 2003 open space and parkland preservation millage passed by Ann Arbor voters. [That millage funds the greenbelt program to preserve natural areas and farmland outside the city, as well as park acquisition within the city.]

Jane Lumm (Ward 2) talks to Lawrence Baird before the meeting.

He reminded councilmembers of the city’s park maintenance and capital improvements millage that voters had approved and will likely renew this year. There’s a loophole in the 2008 charter amendment, he said, and recent events show that if the city chooses to do so, it can enter into long-term leases for non-park purposes. That violates the spirit of the 2008 charter amendment, he said. It also violates the spirit of the various millage votes Ann Arbor voters have made, he said. He contended that greenbelt properties enjoy more protection than city parkland. He described Ann Arbor voters as a “smart, informed, passionate bunch,” and they should be entrusted with the bigger decisions now and then.

Jack Eaton, who is challenging incumbent Margie Teall for a seat on the council representing Ward 4, told the council he was there to support the resolution. He was opposed to putting off the vote on the resolution until a meeting after the primary election. He felt it’s important to consider what’s not involved in passing the resolution. The council’s resolution does not amend the charter, he stressed, but merely allows voters to express their opinion on amending the charter. If the council opposes the resolution because of a fear that voters might approve the amendment, then the council is trying to circumvent the will of the people, he contended. But even if voters approve the charter amendment, the new protections don’t prevent putting the train station at Fuller Park – but rather requires that voters approve it. If the council fears that voters won’t approve the train station, he said, then they’re trying to circumvent the will of the voters.

As he talks to voters, Eaton said, he hears that the community holds parkland in special esteem. He asked the council to pass the resolution and to move it to the ballot immediately before the primary so that voters can know who supported the amendment and who opposed it, before residents cast their votes in the Aug. 7 primary. If the council expects voters to trust them with another park maintenance and capital improvements millage, the council needs to trust voters to weigh in on decisions about parkland, he concluded.

Sally Petersen, who is challenging incumbent Tony Derezinski for a seat on the council representing Ward 2, urged the city council to approve the resolution, because not doing so is not consistent with the city’s open space and parkland preservation, the parks and recreation open space (PROS) plan and the city’s 2008 charter amendment. The additional clarifying language would close a loophole, she said. She reported the results of an informal poll she’d sent to 160 people measuring their support for the resolution: by 6 p.m. she’d received 70 yes votes, compared to 7 no votes.

Gwen Nystuen, who served on the city’s park advisory commission until recently, told the council that until a few years ago she thought the city’s parks were permanently protected. But she contended that it’s not true – and much of the city’s parkland would be commercially valuable. She then enumerated some of the ways that parks are protected. One way is through deed restrictions, and conservation easements. Another way, she ventured, is if parkland has been purchased with millage money voted by the people. She’d contacted the head of county parks, and found that the county’s parks are considered protected because they’ve been purchased with millage money. Another way parks are protected, she said, is through tradition. Ann Arbor has been acquiring parkland for over a century – and most of our leaders say they’d never ever sell parkland. Beyond that, she said, she can’t find any real protection. The proposed resolution doesn’t prevent the sale or alternate use, but it does require a consensus by the voters, she said.

Elizabeth Colvin told the council she lives on Maiden Lane near the University of Michigan medical center. She urged the council not to support the resolution. She spoke as a supporter of parks and as a supporter of some of the projects that have been proposed for some parkland that don’t involve parks and recreation. The current process of handling projects involving non-park uses provides the public with sufficient opportunity to make their wishes known, she said.

Colvin perceives the current process as consisting of professionals with expertise in their fields – whether running a golf business or planning a train station – studying options, comparing alternatives, making recommendations, drawing up plans, submitting ideas for review and input. During that process, she said, people like her who are interested in a particular process can make their preferences known – by speaking during public commentary at meetings or emailing councilmembers. She felt that requiring a public referendum on top of that process adds unnecessary steps and adds delays to projects that should be completed with all due speed. For her, she said, it hits home with the train station that was initially proposed for parkland at Fuller Road. That project means the most to her, she said, because she feels strongly that improved public transit is absolutely key to the long-term economic health of the community. A new and improved train station in the right location is a critical component of a long-term mass-transit plan for our community, she said. Because that’s important to her, she said, she’d follow those discussions closely and she’d provide input on it. For those projects she doesn’t feel strongly about, she wouldn’t follow them closely and she wouldn’t care if there were a public vote.

Summarizing, Colvin said she thinks the current process works and it gives the public opportunity for input. She was addressing the council on behalf of herself, she said, but knew that several of her neighbors shared her view. She encouraged the council to vote no or at least postpone the issue to get input from the city’s park advisory commission.

Park Ballot Question: Council Talk – Intro

Jane Lumm (Ward 2) led off deliberations by noting the resolution had been co-sponsored by Mike Anglin (Ward 5) and Sabra Briere (Ward 1). She thanked assistant city attorney Mary Fales for her help in drafting the language of the resolution. Councilmembers had been given the draft a week ago, she said, and it is unchanged from that version. The language has received a preliminary approval from the state attorney general’s office.

Lumm reviewed the purpose of the resolution – to close a “loophole” left when the 2008 charter amendment was approved. That amendment only specifically referenced the sale of parkland. As a result, the city could retain ownership and not sell it, but could still change the use of that parkland to a non-recreational or non-park use. The resolution is not about Huron Hills golf course or Fuller Road Station or about any specific site, she said. Those situations demonstrated the existence of the loophole. It also does not establish a principle that voters have a say in the long-term use of parkland – because that principle was already established with the charter vote in 2008. It’s simply tightening up the language, she said.

Park Ballot Question: Council Talk – Postponement

Briere said she cheerfully co-sponsored the resolution when it showed up – because she’d heard the same discussion over the last four years as everybody else on the council. However, she looked for unintended consequences. When the ballot measure was placed before voters in 2008, the council anticipated that a problem was being solved. But an unintended consequence was that the city could engage in long-term leases, she said, and indeed had flirted with that idea. The city had not followed through on that – but had talked about it. And that’s what the city is supposed to do, she said – look at its options. It’s that “opening” that the current proposal is intended to close.

From left: assistant city attorney Mary Fales, councilmember Sabra Briere (Ward 1).

But there are also unintended consequences for the current proposal, Briere said, which she’d learned of that day. If the current version appears on the ballot, here’s what could occur without a public vote, she said: The city could contract with a company that manages water parks to run Fuller pool – because it would be the same recreational use. The city could contract with a golf-course operator to operate Huron Hills – because it’s the same recreational use. Or the city could build and own a fire station, a homeless shelter, a train station or a parking structure on a park without voter approval – because the city wouldn’t be selling land or engaging in a long-term lease or contract.

She knew that these were not things the framers of the resolution had intended. So she indicated a desire to postpone the resolution to try to work out the details and at the same time refer the topic to the park advisory commission (PAC), to look at any implications she might have missed.

Briere noted that they needed to specify a date to which the resolution would be postponed. Mayor John Hieftje noted that the chair of PAC, Julie Grand, had written to the council, and the PAC meeting for the following day, July 17, had been cancelled. But the intent was to use the first Tuesday in August, which is the scheduled time for PAC’s land acquisition committee meeting, as a time to hold a full PAC meeting to discuss the park ballot question. [Because that day, Aug. 7, coincides with the primary election, it was abandoned as the time for PAC to meet. Currently, PAC is scheduled to meet on Aug. 8 at 3 p.m.]

The council’s first meeting in August is Aug. 9 – due to the primary election. So Briere made her motion for postponement specifically to the council’s second meeting in August – Aug. 20.

Park Ballot Question: Council Talk – Postponement to When?

Lumm moved to amend the postponement to the first meeting in August.

Sandi Smith (Ward 1) responded to Lumm’s proposal to postpone just to Aug. 9 by saying, “I’m not sure why we’re rushing this.” It could be voted on at either meeting in August, Smith said, and that would be soon enough to place it on the Nov. 6 ballot. The only reason that the item was on that night’s agenda [the last council meeting before the Aug. 7 primary], she said, is that “it’s a really poorly-disguised political stunt.” The remark from Smith, who is not seeking re-election to her Ward 1 seat, generated a discontented murmur among some in the audience.

In support of her contention that the timing of the resolution was political, Smith noted that the council had heard from a city council candidate during public commentary [Jack Eaton], which had indicated to her that it was a political stunt. It’s not about parks, she contended. Smith said the council does not as a habit rush things, noting that they had postponed the four-party transit agreement three times. The council didn’t vote on something that significant for three meetings, she said.

What was before the council that night affected the city charter: “This is our constitution! This is what we operate our city on. I cannot see the rush.” Smith noted there’s no memo or cover letter on the agenda, and councilmembers have had very little information delivered to them. The council should slow the whole process down, she concluded.

Responding to Smith, Lumm told her she had the draft of the resolution on June 26. Subsequent to that, she was trying to answer questions, she said, and she had been told [by Smith] that by answering questions she was potentially violating the Open Meetings Act (OMA). She had been trying to be helpful, Lumm said: “Damned if you do, damned if you don’t, I guess.”

By way of background on the OMA issue, Smith had emailed questions about the resolution to the city administrator and the city attorney, CC-ing the message to all councilmembers. Lumm responded to everyone with her answers to Smith’s questions and what Smith perceived as possible advocacy of a point of view on the questions. That was the source of Smith’s caution about OMA issues. If more than a quorum of councilmembers engage in back-and-forth via email it could establish a “meeting” that has not been properly noticed to the public and not open to the public.

The strongest rationale for postponement, Lumm felt, had to do with the definition of potential uses of parkland that might not have been addressed. She felt that assistant city attorney Mary Fales was “Thomas Jeffersonian” in her efforts to craft the language. Fales addressed concerns about the things the city wants to continue to do. It’s a matter of not being able to legislate everything and anticipate every eventuality, she said. Lumm stated that it’s not political. She felt it should not be postponed, but if it were to be postponed, it should be just to the first meeting in August.

Councilmembers Mike Anglin (Ward 5) and Marcia Higgins (Ward 4) before the July 16 meeting.

Mike Anglin (Ward 5) said that back in 2008, the moment had been right, even though some members of council at the time didn’t want it to move forward. But the moment was right then, and it moved forward – with its limitations. He believed the moment was right now. It had been addressed at PAC several times, he contended. Mayor John Hieftje cautioned Anglin that the issue under discussion was to postpone to the first or the second meeting in August.

Anglin felt that the historical context was important. He felt that the council had not rushed – that it had been very deliberate and it had been going on for some time. As policymakers, that’s the council’s role. The city would have a continual rehashing of the issue – or it could be settled, by saying that those who own the parks have the right to say what happens to them. So he was not in favor of any kind of postponement. He had not been able during that night’s deliberations to speak to the main issue, because the postponement had been brought up before he’d had a chance do that. Postponement will send a chilling statement to those who support parks, he contended.

Briere appreciated the comments by Lumm and Anglin, and indicated that her discovery of loopholes in the current proposal was also a problem for her. If everyone were to move “extraordinarily expeditiously,” the issue could be resolved by the first meeting in August. If not, then the council still has another meeting in August. It’s important that it go to the public, she said, so it’s important that it be the best legislation that the city could have. She said she was content to bring it back on Aug. 9, knowing there’s another meeting in August.

Stephen Kunselman (Ward 3) confirmed with city clerk Jackie Beaudry that the last date for certifying ballot language with the county clerk is Aug. 28. Kunselman ventured that even a special meeting could be possible. He called it the “common practice” to postpone it initially and then postpone it again if necessary. He’d support postponement to the first meeting in August.

Hieftje expressed concern about the timing, but didn’t have a problem postponing to the first meeting in August. But he was not enthusiastic about the kind of special meeting that Kunselman had described.

Smith took exception to something that Anglin had said about a “thorough and deliberate process.” Speaking to Anglin, Smith told him: “You serve on PAC and you didn’t feel this was appropriate to bring it to the commission you serve on.” Smith stated that the council is delaying in part because PAC hasn’t weighed in. PAC consists of citizen volunteers, she said. It disrespects PAC not to include that body in the process, so she questioned if it had really been a careful and deliberate process. The only appropriate way to go forward, Smith continued, is to have PAC weigh in on it. A Thursday council meeting [on Aug. 9] catches the public off guard, she said. It’s not always the best time to do something – because it’s harder to get the word out. Because of the need for PAC to weigh in appropriately, and because of the Thursday council meeting, she couldn’t support a postponement any earlier than the second meeting in August.

Kunselman sought confirmation that PAC would have time to weigh in on the proposal before Aug. 9. Hieftje told him that was the plan that PAC chair Julie Grand had proposed.

Outcome on postponement timing: The council settled on the timing of the postponement as Aug. 9 – over dissent from Sandi Smith (Ward 1) and Tony Derezinski (Ward 2).

Park Ballot Question: Council Talk – Postponement or Not

At that point, the question before the council was to postpone to Aug. 9 or not.

Lumm felt the resolution is very straightforward. She indicated that the concerns people had expressed about the language had already been addressed by the city attorney. She felt the language offered a good framework. And she reiterated that it could not anticipate every eventuality. She reviewed the basic arguments for the resolution. Lumm did not understand the need to postpone or the need for PAC to review it. The charter was not being changed, she said, but rather the issue was being put before the voters. She didn’t have a problem with PAC providing comment. She had a problem with the timing, she said. She said she didn’t receive a response from a question she’d posed to PAC chair Julie Grand about the scheduling of the meeting.

Responding to Smith’s criticism of Anglin for not moving the proposed charter amendment through PAC, Lumm said Smith had taken an unfair “potshot” at Anglin. PAC cancelled its meeting scheduled for July 17, when Anglin had been “poised to speak to this.” Apparently, Lumm said, PAC didn’t have very much on the agenda and had cancelled its meeting.

Smith picked up on the timeline issue that was part of Lumm’s argument. Smith said she was not sure how PAC could inform the council that night if the commission had been scheduled to talk about it the following day.

Smith then recalled the discussions the council had earlier in the year on the four-party transit agreement. She found some parallels that she found ironic. She then cited coverage in The Chronicle from deliberations conducted at the Jan. 9, 2012 meeting. The complete passage reads as follows:

Lumm reiterated many of her concerns, saying she felt the timeline is “backwards.” She said she doesn’t understand how the council could go forward without having critical documents. Lumm said the issue is not about whether regional transit is good. It’s about seeing information about the specific benefits. She described the process as a “rush” and as putting the cart before the horse.

Smith ventured that “parks” could be swapped in for “regional transit” in that quote. In February 2012, Smith continued, Lumm was quoted by The Chronicle during the four-party transit deliberations as saying “If it’s a good concept today, it’ll be a good concept tomorrow.”

If the park proposal is not on the Nov. 6 ballot, Smith said, it can be on a different ballot. She didn’t necessarily care if it was on this November’s ballot, she said, because she didn’t think there was an impending issue that would change things. She didn’t feel that the city council would be taking a vote on a long-term lease anytime in the next year – though she allowed she could be wrong about that. She did not see the need to rush. It’s important that the council have some robust input from citizens, and that night was the first opportunity she knew of that citizens had a chance to come to the podium to talk to the council about it. So it had to be postponed at least until the first meeting in August, she said.

Anglin said he was fearful the proposal would disappear and then never appear again. He felt the presidential election year, with its larger turnout, would yield a resounding yes or no answer. Over the last few years, the issue has been very contentious, he said, costing time and effort by staff and the council. He described most of the work as having been done by the Sierra Club – writing and re-writing language.

Carsten Hohnke (Ward 5).

Anglin  contended that he’d raised these issues at PAC, but they were dismissed – because PAC members didn’t see them as significant enough to discuss. For his part, if the council goes back to PAC, “We’ll just get an opinion.” He noted that PAC has three new members. So the “real skilled PAC members” who served for multiple years, are now out in the community willing to work. [He was referring to Gwen Nystuen, Sam Offen and David Barrett, whose terms recently ended on PAC.] The council does itself a disservice not to see this as a public process, he said. “Just ask the voters – it’s so simple,” he said.

Carsten Hohnke (Ward) said he felt that there were good reasons to consider the proposal and to look at the language – but he hadn’t heard any reason not to postpone. Getting input from PAC makes perfect sense, he said. Having PAC’s input can only help, he said. While Anglin might feel PAC’s input doesn’t add value, Hohnke didn’t think it would hurt. In the interest of furthering the dialogue on a thoughtful effort to change the charter, he’d support postponement.

Stephen Kunselman (Ward 3) indicated that he felt it was important to have PAC weigh in. He lamented the fact that back on Nov. 5, 2009, when the council had approved an MOU (memorandum of understanding) with the University of Michigan on Fuller Road Station, the council didn’t get advice prior to voting. But two wrongs don’t make a right, he said.

Marcia Higgins (Ward 4) weighed in supporting the postponement to the first meeting in August. A problem with the volume adjustment on Higgins’ microphone prompted Thomas Partridge to chime in from the audience with a request that Hieftje make certain to ensure that microphone levels are loud enough for people to hear. Hieftje retorted with, “Could you make certain to keep quiet?”

Hieftje said the worst thing the council could do is put a flawed proposal on the ballot – a proposal that doesn’t do what voters think it will. So he’d support postponement.

Outcome: The council voted to postpone the proposal until Aug. 9, over dissent by Mike Anglin (Ward 5).

Skatepark Design Contract

The Ann Arbor city council was asked to authorize a $89,560 contract with Wally Hollyday Skateparks for the design and construction oversight of a skatepark to be built in the northeast corner of Veterans Memorial Park. The city’s park advisory commission had recommended approval of the contract on June 19.

City council action on the skatepark at that location dates back to a Dec. 1, 2008 approval of a memorandum of intent. [.pdf of memorandum of intent]

The roughly $1 million project – including an anticipated $100,000 endowment for ongoing maintenance – will be financed through a combination of funds. Those include private donations – primarily solicited through the Friends of the Ann Arbor Skatepark – as well as a $300,000 state grant, and up to $400,000 in matching funds from the Washtenaw County parks and recreation commission. The Ann Arbor Area Community Foundation is acting as fiduciary.

Selection of Wally Hollyday Skateparks for the work came after a selection committee reviewed six responses to a request for proposals (RFP) issued by the city of Ann Arbor in April. The committee selected two California firms – Wally Hollyday Skateparks and Wormhoudt Inc. – as finalists. Additional review and interviews resulted in the choice of Wally Hollyday Skateparks as the recommended designer. Wally Hollyday had already been involved in the project to some extent, leading design workshops for the Friends of the Ann Arbor Skatepark in 2009 and 2010.

Outcome: The council voted to approve the skatepark design contract as a part of its consent agenda.

Initial Rezoning for Bluffs

The council considered giving initial approval to the rezoning of two parcels that were recently acquired by the city for expansion of the Bluffs Nature Area at 1099 N. Main St., north of Sunset Road. The city planning commission had recommended the rezoning at its June 5, 2012 meeting.

A 1.12-acre parcel to the north of the Bluffs – connecting the existing parkland to Huron View Boulevard – is currently zoned O (office), and had been donated to the city by a nursing home near that site. A 0.57-acre addition to the south connects the existing parkland to Sunset Road and is currently zoned R4C (multiple-family dwelling). It had been purchased by the city from the Elks lodge, using funds from the open space and parkland preservation millage. Both parcels were recommended to be rezoned as PL (public land).

City planner Alexis DiLeo told planning commissioners at their June 5 meeting that the parcels make the nature area more accessible. Though there is frontage onto North Main, there’s no easy access there for pedestrians or cyclists.

Outcome: The council voted unanimously to give initial approval to the rezoning of the parcels.

Accessible Path Work at Leslie Science Center

The council considered approval of a $115,309 contract with JB Contractors Inc. to construct barrier-free pathways at the Leslie Science and Nature Center. The recommendation includes a 10% contingency, for a total project cost of $126,840.

The city’s park advisory commission had recommended approval of the contract at its June 19, 2012 meeting.

JB Contractors provided the lowest of two bids. Fonson Inc. had submitted a much higher bid of $197,459. Funding is available from the city’s park maintenance and capital improvements millage.

Francie Krawcke, raptor program director with the Leslie Science & Nature Center, brought a snowy owl to the June 19, 2012 meeting of the Ann Arbor park advisory commission. The owl did not fly around council chambers, but did enjoy a few snacks at the meeting.

PAC had been initially briefed on this project – the first phase of a larger renovation – at its Feb. 28, 2012 meeting. The center, located at 1831 Traver Road, was previously part of the city’s parks system, but since 2007 has operated as an independent nonprofit. However, the city still owns and maintains the buildings and property.

Parks planner Amy Kuras told commissioners at PAC’s June 19 meeting that the goal of the changes to the pathways is to make the center compliant with requirements of the Americans with Disabilities Act (ADA), and to make the pathways and overall organization of the site less confusing. The project includes replacing the paths that connect various buildings on the site, and constructing new paths to connect the center’s raptor enclosures.

At the council’s July 16 meeting, mayor John Hieftje expressed general support for Leslie Science and Nature Center, mentioning the Mayfly annual fundraiser. [Hieftje is a former board member for the center.] Tony Derezinski (Ward 2) added that representatives of the LSNC attended the July 16 Townie Party and brought the center’s raptors.

Outcome: The council voted unanimously to approve the contract with JB Contractors Inc. for work at the Leslie Science & Nature Center.

Physical Testing of 415 W. Washington

The Ann Arbor city council considered a resolution approving $50,000 of general fund reserve money to be used for various physical surveys on the city-owned 415 W. Washington property. The property, with its three buildings, was previously used by the city as a vehicle maintenance facility, before the construction of the Wheeler Service Center south of town on Stone School Road.

From left: Carl Goins, executive director of 555 Nonprofit Gallery and Studios, and architect Chuck Bultman before the city council’s July 16 meeting.

The council received a presentation at its May 7, 2012 meeting from representatives of 555 Nonprofit Gallery and Studios on the physical survey work. The 555 group has assumed responsibility for the art community’s component of an initiative established by the city council on Feb. 1, 2010 to explore a collaboration between the greenway and art communities for adaptive reuse of the property. The 555 group stepped in when the Arts Alliance could no longer devote staff time to the project. Prior to that initiative, the city had gone through an RFP (request for proposals) process for the property that did not lead to the selection of any of the three proposals submitted.

Chuck Bultman, an architect who is working with the 555 group, had attended the Sunday night city council caucus on July 15. He had compared the physical surveys to be done on the 415 W. Washington property to a through medical workup for a patient. It would be more than taking blood pressure, and would include “drawing blood samples.” For the buildings, the work will include taking core samples to evaluate the structural integrity of the concrete and steel.

Besides the structural testing, other work to be done includes: an environmental survey; hazardous materials assessment; a topographic and boundary survey; a site survey; and architectural drawings of the existing buildings.

Bultman, along with several other professionals, have thus far volunteered their time to move the project forward. Others include: Paul Dannels (a structural engineer with Structural Design Inc.), Shannan Gibb-Randall (a landscape architect with Insite Design Studio Inc.), and Matt Grocoff (an energy performance consultant with Thrive).

Much of the survey work – in particular, the environmental, hazardous materials and topographic surveys – would be required regardless of the parcel’s future use.

415 W. Washington: Public Comment

During public commentary at the start of the meeting, Carl Goins – executive director of 555 Nonprofit Gallery and Studios – told the council that a team of local professional had been working with the city’s task force. He noted the 555 group’s experience in transforming underused spaces into facilities that provided resources to hundreds of artists. The 415 W. Washington building’s size, location and historic character make it an ideal candidate for that kind of re-use, he said. The project could be a model for public, private and nonprofit collaboration. The physical surveys could put things on track for the building to become a regional hub for the arts.

415 W. Washington: Council Deliberations

Mayor John Hieftje led off deliberations by saying that the funding would move the process along. The city had been working with the Allen Creek Greenway Conservancy and the Arts Alliance for the last couple of years, on the idea of developing a greenway park and art center. He alluded to an “outshoot” of the North Main corridor task force that was focusing on the greenway. The first greenway park, he said, would be the 721 N. Main city-owned parcel. The effort on 415 W. Washington and 721 N. Main need to be coordinated and connected, he said. He mentioned hooking up the greenway to the county’s Border-to-Border trail. Even if you don’t agree that the dream of an art center will come to pass, the surveys would need to be done, he concluded.

Carsten Hohnke (Ward 5) agreed that it was an important and judicious investment in preserving options for the building. Absent a clear understanding of the potential for re-use, he said, the move would be toward seeing the building demolished. [The city's historic district commission would need to grant the city a notice to proceed with that demolition, which is not a foregone conclusion.] Hohnke noted there are a number of people now involved with the effort, who have experience with this type of repurposing. The expenditure increases the likelihood that something exciting happens at the site, he said.

Sandi Smith (Ward 1) called it pretty exciting that the city is going forward with the work. She made a note that the terminology used in the resolution refers to the future “conveyance” of the land. The council’s deliberations on the ballot question then spilled into the 415 W. Washington item, when Smith said she’d love to have a legal opinion on what the city would need to do in order to “convey” the property. It was an excellent example, she said, of a situation where a special election might have to be called in order to enter into an eventual long-term lease. She wanted to know what the impact would be of the proposed city charter amendment on the 415 W. Washington project – not that night, but eventually.

Responding to Smith, Jane Lumm (Ward 2) ventured that the 415 W. Washington project would not be affected at all – because the proposed charter amendment speaks to parkland and cemetery use. The 415 W. Washington site is public land, not parkland. So it has nothing at all to do with the 415 W. Washington site. Responding to Lumm, Smith said, “Thank you very much, councilmember Lumm. I’d love to have a discussion with the attorneys at a later time.” Lumm wrapped up the exchange with “Sorry, I was just trying to help.”

Lumm continued with her remarks by thanking Chuck Bultman, the architect who’s been working with the 555 group. Bultman had given her and others a tour of the site last week. Bultman really has a vision for the future of the building, she said. She understands that what’s contemplated is finding a positive use for the city-owned site. She asked city administrator Steve Powers to outline what the resolution does. Powers reviewed the physical surveys of the building that would need to be done – regardless of its future re-use. To provide more detail on what’s been done to date, Powers told Lumm he’d need to prepare that information and provide it at a later time.

Lumm wanted more information about what the phase 2/3 environmental surveys would tell us. Public services area administrator Craig Hupy was called on to address that question. Hupy described a phase 1 environmental assessment as an analysis of past use. The site does have a history of past uses that causes a suspicion of contamination. A phase 2 study looks at the ground more in depth to see if pollution exists, and if so, to what level.

Lumm asked why the funding was not included in the FY 2013 budget. Powers characterized it as an oversight and nothing more. He was not aware of the momentum of the project at the time the budget proposal was put together, he said.

Sabra Briere (Ward 1) reported to her colleagues that the previous night at the council caucus, she heard from people who are working with the 555 group [Bultman and Trevor Stone] and had heard quite a bit about what could be learned from an environmental assessment – from taking core samples of concrete, looking at groundwater, studying what part of the flooding is caused by the water table and what part is caused by grading of the site and the additional gravel that’s been added to create the parking lot. At the caucus meeting, she’d also learned there is a section of the site that is inaccessible.

Responding to Lumm’s concern about the failure to include this item in the FY 2013 budget, from Briere’s perspective, she was not surprised to see the item come forward until after the budget was approved. Frequently, she said, an item is not “ripe” until after the budget has been approved. It’s a one-time expense, she continued, and she indicated that it’s typical for such items to be approved outside the regular budget cycle.

Margie Teall (Ward 4) said she appreciated all the words of support from other councilmembers. She’s excited about this project, she said, which she contended she’d been working on for a decade – a public space for the arts and the performing arts. She characterized it as a first step. The surveys will tell us whether the building is usable, she said, and she hopes the answer is affirmative.

Stephen Kunselman (Ward 3) said he supported the resolution and viewed 415 W. Washington as a roadmap for how to deal with 721 N. Main. He noted there’s a lot of community interest in how to use the 721 N. Main property for community needs – whether it’s a day-use center or not. [The council has heard frequent public commentary at its meetings since the fall of 2011 on the idea of a day shelter and warming center. And 721 N. Main has been a property that organizers asked the city to turn over for such use.] How the city handles 415 W. Washington sets up a framework for other city-owned properties, and he’s excited to hear what information the city gets from the work, Kunselman concluded.

Hieftje responded to the 721 N. Main thread that Kunselman had picked up. Hieftje indicated that 721 N. Main is moving forward as part of a state Natural Resources Trust Fund application by the city – because 721 N. Main already has its environmental “clearance.”

Outcome: The council voted unanimously to approve the $50,000 expenditure for physical surveys on the 415 W. Washington building.

Federal Money for Greenbelt

The council considered approval of the acceptance of $396,900 in federal funds from the Farm and Ranch Land Protection Program (FRPP) for the purchase of development rights (PDR) on properties in Webster and Superior townships owned by the Robbin Alexander Trust (90 acres) and Robert Schultz (136 acres). The grant amount represents 49% of the purchase price.

Ann Arbor greenbelt as of June 2012 (not including the properties the council voted on at their July 16, 2012 meeting). The large square-ish area is the greenbelt boundary area – the land eligible for protection with Ann Arbor greenbelt millage funds. Darker green areas indicate protected property. (Image links to dynamic map.)

The council had approved the application for the federal funds at its Feb. 21, 2012 meeting. The local share will be provided through the city’s parkland and open space preservation (greenbelt) millage.

Carsten Hohnke (Ward 5), who serves as the city council representative to the greenbelt commission, noted that the applications for federal grant money had been approved by the council in February 2012. He highlighted the fact that the federal grants covered 49% of the purchase price, which is the maximum amount that the FRPP will approve. Hohnke said that 49% reflects the quality of the applications that the city staff are submitting. He characterized it as great leverage for the millage funds that Ann Arbor voters have approved.

Jane Lumm (Ward 2) said she certainly supported accepting the funds but contended that it could be better – if other sources of local funding (from the townships) besides the city’s greenbelt millage had factored into the local match component. She ventured that this was not the funding proportion that had been anticipated when the millage was approved.

Outcome: The council voted unanimously to approve the receipt of the FRPP funds.

Wetland Restoration at Plymouth

The council considered approval of a $97,687 contract with Fonson Inc. for restoration of a wetland in Plymouth Parkway Park that was filled in as a result of a railroad embankment collapse caused by heavy rains in July 2011. The funds will be taken from the park maintenance and capital improvements millage.

Immediately after the collapse, about half of the soil from the embankment washout was removed from the site, and the rest was removed last month, according to a staff memo accompanying the resolution. The staff memo also states that  Ann Arbor Railroad worked with the city to restore and improve drainage systems in and around the railroad embankment.

The work covered by the contract with Fonson is to repair underground drainage systems in the park, complete final site grading and replanting the wetland with appropriate species.

Council deliberations consisted of a remark by Sabra Briere (Ward 1) that she is delighted the restoration will go forward.

Outcome: The council voted unanimously to approve the contract with Fonson Inc.

Maple Cove Site Plan

The council considered the site plan for the Maple Cove development located on 2.96 acres at 1649 N. Maple, north of Miller Road between North Maple and Calvin Street on the city’s west side.

The plan calls for combining two sites – 1649 N. Maple and 1718 Calvin – and demolishing an existing single-family home and detached garages there. Two 3-story apartment buildings would be built with a 64-space parking lot and eight bike spaces. The project also includes building a private street to serve seven new single-family houses near Calvin Street, but with an entrance off of North Maple. According to a staff memo, there will be no access to Calvin Street, which “is a private street with a checkered history regarding access rights.” The apartment complex would have a separate entrance, also off of North Maple.

Each apartment building would contain a total of 18 one-and two-bedroom apartments ranging from 745 to 1,057 square feet. The plan calls for each apartment building to have a rooftop patio for use by residents, with the possibility of a vegetated cover (green roof) for the remainder of the roof surface. The staff memo noted that the city has requested a $26,660 parks contribution, but the developer has declined to make that contribution.

The project has a somewhat unusual history. Planning commissioners originally approved it at their March 20, 2012 meeting. But that vote was rescinded because Scio Township residents on Calvin Street had not been included in an original public notice mailed out for the commission’s March meeting.

There were no changes to the plan in the interim period, but at their May 1, 2012 meeting, planning commissioners voted to postpone action to get more information from the traffic engineer about whether the proposed two separate entrances to the property created a health, safety and welfare hazard. According to city planning staff, the city’s traffic engineer raised some concerns, but he subsequently confirmed that the site plan – with two entrances off of North Maple – does conform with city code.

Planning commissioners ultimately approved the project at their June 5 meeting on a unanimous vote, but three of the nine commissioners – Bonnie Bona, Evan Pratt and Kirk Westphal – were absent. Bona and Eric Mahler had dissented on the commission’s March 20 original approval. Part of their objection stemmed from concern that no sidewalks were planned for the private street.

At the Sunday night city council caucus held on July 15, the project’s developer indicated the possibility that the private street portion of the project might be sold to another developer – and that developer would have the option to submit a revised site plan that includes sidewalks.

Maple Cove: Public Hearing

Thomas Partridge spoke, describing himself as an advocate for the most vulnerable residents of the city. He contended that amendments should be made to the proposal that would require a percentage of the units to include affordable housing.

At the conclusion of the public hearing, mayor John Hieftje responded to Partridge’s mention of an affordable housing requirement by saying that with a planned unit development (PUD), the city could require affordable units; but for a “by right” development like Maple Cove, something like that couldn’t be required.

Maple Cove: Council Deliberations

Project area for Maple Cove is shown outlined in black. (Image links to higher resolution .pdf file)

Carsten Hohnke (Ward 5) began by saying that there are some positive aspects to the proposal, including the fact that it will help fill in Maple Road. He noted there had been a healthy discussion by the planning commission on the site plan. The developer had been asked to consider some minor improvements – not required by code, but that would have improved the experience for future residents of the project and for the public at large. The developer had not undertaken the suggested changes. He was disappointed, Hohnke said, but did not feel it rose to the level of concern that would cause him to vote against the project.

Stephen Kunselman (Ward 3) said he wouldn’t support the project. As city councilmembers, he said, they have a right to do everything they can to protect the health, safety and welfare of the community. Because the developer did not want to include some things that affect safety – like sidewalks on the private street – he would not support the project. He characterized that as “cutting corners,” saying the developer should be held to the same standards as everybody else.

Mayor John Hieftje then asked city planning manager Wendy Rampson to the podium to ask her a single question to which everyone already knew the answer: “Is this a by-right development?” Rampson told Hieftje that yes, Maple Cove meets the requirements of the zoning ordinance.

Hieftje then ventured that if Kunselman requested it, the council could have a closed session to discuss the ramification of voting no. [Assistant city attorney Mary Fales whispered to Hieftje words to the effect that Hieftje's idea for a closed session wouldn't work, because the council would need a written memorandum from the attorney's office to discuss in order to justify the closed session. That had been part of the point of a lawsuit filed by The Chronicle in September 2010. Since that time, closed sessions held by the Ann Arbor based on the attorney-client privilege have become rare events, when previously they were regular occurrences. Hieftje subsequently relayed Fales' comments at the table.]

Because Maple Cove is a by-right development, Hieftje said, a vote against it would be a “protest vote” but he felt the course was clear. There are many by-right developments where the developer doesn’t cooperated to the utmost, but the council has to follow the law.

Sabra Briere (Ward 1) noted that many councilmembers would like to see sidewalks included in all new neighborhoods, but that’s not a code requirement. While the council could change the city’s ordinance to require sidewalks in the future, it was not an option that night. She indicated she would cheerfully tell the developer that, as she did the previous night at the council’s caucus.

Jane Lumm (Ward 2) noted that it’s a complicated project that has generated a lot of discussion by staff and the neighbors. She concurred with Hohnke in his conclusion that the developer had not been very flexible – with respect to the possibility of eliminating one of the driveway entrances (curbcuts) and the voluntary parks contribution. But she concluded that the project met the code requirements. She felt that the project reflected an improvement.

Responding to a question from Lumm about the city staff’s recommendation for approving the project, Rampson said that “as near as we can tell” the project complies with city code.

Rampson noted that city code requires a sidewalk for a private street with eight lots or more, but the private street for Maple Cove includes seven lots, so there’s no requirement for sidewalks. She noted that the project had been reviewed twice by the planning commission, because the township neighbors weren’t notified the first time around. Neighbors from the township had concerns about the different lot sizes in the Maple Cove project compared to those on Calvin Street – and they felt the project reflected an increase in density. However, Rampson pointed out that the property was already zoned, and the proposed lots are consistent with zoning.

On the traffic issue, related to the two driveways, a city traffic engineer took a look at the placement of the two driveways. The conclusion, Rampson allowed, was that the two driveways were “not ideal” – in that they don’t have the desired spacing between each other or the desired distance from the intersection. But the city does not have anything about access management in the code. According to the traffic engineer, Rampson said, if the driveway configuration becomes a hazard, one of the drives can be removed under the city code.

About the parks contribution, she noted that it’s a suggestion based on a formula, but it’s not a code requirement. She noted that there are some amenities included in the project that might actually count toward the park contribution.

Hohnke asked Rampson to share some views of the expected benefit for the development, compared to the existing situation. Rampson told Hohnke that the planning commission had pointed to the fact that the current site is not very well maintained. The project would bring additional housing to the area – both rental and homeowner opportunities. It would also provide a sidewalk link on the public frontage along North Maple, so it’s consistent with the city’s master plan, she said.

Maple Cove driveway configuration. Magenta arrows show the two driveways.

Hohnke said he shared Kunselman’s concerns, but indicated surprise that Kunselman was considering voting against the project. He felt it’s hard to make a reasonable argument that it’s a detriment to health, safety and welfare. He ventured that it could be considered irresponsible [of Kunselman] to put people of Ann Arbor at [legal] risk by denying a site plan that meets code and provides some benefit. He encouraged people to understand the weightiness of denying a by-right proposal.

Kunselman responded by noting that Rampson had said the driveway curbcuts don’t meet the desired standard, but that the city doesn’t have a mechanism in the city code to do anything about that. If it were determined that there was a hazard being caused, he said, and the driveway entrance to the private street had to be closed, then the only access to the private street would be through the other driveway entrance – and that would lead past the additional lot for the multi-family housing in the project, for a total of eight lots. If that’s what happens, Kunselman ventured, the developer will have been able to circumvent the requirement of having sidewalks for the private street.

Kunselman restated his view that it’s an issue of public safety. There are no sidewalks in his neighborhood, he said, and walking down the street last year with the mayor of Tübingen [Ann Arbor's sister city in Germany], they almost got run over. He rejected Hohnke’s suggestion that Kunselman’s would be a protest vote. Kunselman noted that he grew up in that part of town. He wanted to make sure that sidewalks are added.

Tony Derezinski (Ward 2), who is the city council’s representative to the city planning commission, contended all these questions were raised and answered. He restated the fact that it’s a by-right development. “When it meets the code, that’s it!” he said. He characterized the application of the rubric of health, safety and welfare as a very “slippery slope.” He felt the council should vote for the project.

Hieftje indicated he would support the project because he did not think there’s any latitude, citing the potential of a lawsuit, and saying the council would be on extremely thin ice to deny it.

Outcome: The council voted to approve the Maple Cove project, with dissent from Stephen Kunselman (Ward 3).

Ann Arbor Police Chief: John Seto

The council considered a resolution appointing John Seto as permanent police chief and head of safety services.

John Seto at the March 30, 2012 farewell for former chief Barnett Jones.

Seto has served as interim in both roles since the resignation of former police chief Barnett Jones effective March 31.

At his farewell sendoff on March 30, Jones was emphatic about his view that Seto should be hired as permanent chief, describing Seto as “the right person to follow me.”

Seto was hired in 1990 as a patrol officer in the AAPD and achieved the rank of deputy chief in 2008.

Seto’s college degree is from Eastern Michigan University, and his subsequent professional development has included training from the FBI. He also holds certification as a firefighter.

As head of safety services, Seto oversees the fire chief. The administrative position of safety services administrator is appointed by the city administrator. But the city charter requires that the council approve the appointment of police chief.

Police Chief Appointment: Public Commentary

During public commentary, Ann Arbor resident Blair Shelton reprised sentiments he’d expressed at the council’s March 19, 2012 meeting, alleging racism on the part of the Ann Arbor police department and Seto specifically. [By way of brief background, Shelton won a lawsuit against the city of Ann Arbor in the mid-1990s in a case involving racial-profiling in the AAPD's approach to collection of blood samples.] At the July 16 meeting, Shelton told the council that in 1995 when Channel 7 came to his home to interview him about winning his lawsuit, Channel 7′s Bill Proctor told him that on the way there, the AAPD had pulled over the Channel 7 news truck on suspicion of having stolen the vehicle. He invited people to ask Proctor about the ethnicity of the AAPD officer.

[Shelton was implying that the officer was Seto. In a phone conversation with The Chronicle, Proctor could not confirm the episode that Shelton described. Proctor noted that he did not recall interviewing Shelton, noting that the incident in question took place in 1995. Proctor indicated he did not recall ever being pulled over in the news truck because an officer questioned his legal right to be behind the wheel.]

Shelton contended that the “vestiges of racism have been enshrined in the department” since its inception. He pointed to the hiring of the first African American officer in the early 1900s, an officer Thomas Blackburn. He contended that Blackburn had been accused of raping a white university student and that the courthouse had been surrounded by people screaming: “Lynch the ‘n-word’ kill the ‘n-word.’”

In connection with his court case, he said, through the discovery process, they’d learned that the AAPD had wanted to perform DNA testing on the University of Michigan football team, but coach Bo Schembechler had said, “Hell, no.” Shelton told the council, “I am a human being!” with the right to move freely through the community. On the hiring of Seto as permanent chief, he told them, “Good luck.”

By way of additional background on the history of the Ann Arbor police department and racial issues, from former AAPD police officer Michael Logghe’s “True Crimes and the History of the Ann Arbor Police Department“:

Officer Clayton Collins was thought to be the first black Ann Arbor Officer when he was hired in 1950. However, according to Officer Camp’s report, a black officer named Thomas Blackburn, was hired in 1907. I discovered a photo of Officer Blackburn and it does not appear that he was black. Officer Blackburn was with the department for ten years and it is open for debate if he or Officer Collins was the first black officer. …

Officer Collins told me he was asked to apply to the department by Albert Wheeler (Wheeler would later become mayor). He stated Wheeler was always trying to get blacks to apply for positions which they had historically been barred. Officer Collins thought about it and finally applied. The department hired him and thus he became the first black officer in the city’s history. (I should note that in Officer Camp’s report, he stated a black man named Thomas Blackburn was an officer with the department at the turn of the century. Officer Collins had heard about Blackburn and thought he was half-Indian. In any event Officer Collins was the first black officer in the modern era.)

I was surprised to find that Officer Collins encountered very little racism, not only within the department, but within the city. Almost all of the officers were very accepting of him and none made a negative comment to him. At worst, some of the officers were distant to him. He stated his experience as an Ann Arbor Officer was very positive and enjoyable. He said Ann Arbor was a wonderful place in the 1950′s.

Jonathan Marwil’s “A History of Ann Arbor” gives an account of the hiring of Blackburn that’s consistent with Logghe’s. The Chronicle was not able to confirm in those two sources Shelton’s account of the rape accusation against officer Blackburn.

More recently, the AAPD was reviewed for possible racial profiling in a 2004 study of traffic stops, conducted by Lamberth Consulting. The AAPD scored well in the study, according to a Feb. 12, 2004 Ann Arbor News article. [.pdf of the Lamberth Consulting study on AAPD traffic stops]

Police Chief Appointment: Council Deliberations

Mayor John Hieftje said he’d had an opportunity to work with a few police chiefs in his time as mayor – Dan Oates and then Barnett Jones. Hieftje felt like he knows what it takes to be a good police chief – and whatever it is, John Seto has it. Seto has proven himself in this interim period, he said.

John Seto received a round of applause on his appointment as chief of Ann Arbor police. From left: Sandi Smith (Ward 1), Sabra Briere (Ward 1), Tony Derezinski (Ward 2) and Jane Lumm (Ward 2).

Marcia Higgins (Ward 4) praised Seto in the context of her work with him over the years. She was pleased to see promotion from within. She said that former chief Barnett Jones did a great job of succession planning. Jane Lumm (Ward 2) said she wholeheartedly supported the appointment. Sandi Smith (Ward 1) asked Seto to come to the podium so that the public could see him.

Mike Anglin (Ward 5) congratulated Seto for his work on sensitive issues. He was impressed with his professionalism and sensitivity. Carsten Hohnke (Ward 5) hoped that Seto recognized the unanimous support from the council reflected full faith and trust on the part of the council for his ability to lead. Tony Derezinski (Ward 2) offered a single word: “Amen!” Stephen Kunselman (Ward 3) called Seto’s appointment a recognition of the quality of the department as a whole, saying that it was the department that helped create Seto as he moved up the ranks.

Outcome: The council voted unanimously to appoint John Seto as chief of police and head of safety services. He was given an enthusiastic round of applause.

Seto thanked city administrator Steve Powers for the confidence to make the recommendation to appoint him. For the last 22 years, Seto said, it has been a privilege to work with the men and women of the police and fire departments. He’s witnessed first-hand the hard work, dedication and the sacrifices they’ve made to serve and protect the community. More than the honor of being appointed chief, he said, it’s his honor to be a part of this organization. Throughout his entire career, he said, he’d worked very hard to represent the city in the most professional manner and to treat everyone he meets with great respect – and he’d continue to do that, he concluded.

CUB Agreements

The council considered a resolution to reverse at least temporarily an earlier action on restoring the use of CUB agreements. Construction unity board (CUB) agreements are negotiated between local trade unions and contractors, and require that contractors who sign the agreement abide by terms of collective bargaining agreements for the duration of the construction project. In return, the trade unions agree that they will not strike, engage in work slow-downs, set up separate work entrances at the job site or take any other adverse action against the contractor.

The resolution considered by the council at its July 16 meeting suspended the use of CUB agreements for contracts over $25,000. The resolution appeared on the agenda after Michigan Gov. Rick Snyder signed Public Act 238 of 2012 into law on June 29. The law amends the Michigan Fair and Open Competition Act.

The council’s previous action was taken about a month earlier on June 4, 2012, and had restored the use of such CUB agreements. The July 16 suspension allows for the resolution using the CUB agreements to be restored administratively, pending possible court rulings.

An alternating series of positions by the city of Ann Arbor began with the adoption by the city council of the use of CUB agreements at its Nov. 16, 2009 meeting. The resolution required that contractors and subcontractors execute such agreement with the Washtenaw County Skilled Building Trades Council as a condition of award for all city construction contracts.

But last year, the Michigan legislature passed Act 98 of 2011, which prohibited municipalities from signing construction contracts in which contractors were required to make an agreement with a collective bargaining organization.

So on Aug. 15, 2011, in response to the state law, the city council rescinded that requirement. However, the U.S. District Court subsequently found Act 98 to be unenforceable, based on the supremacy clause of the U.S. Constitution and the National Labor Relations Act. So at its June 4, 2012 meeting, the city council restored the use of CUB agreements. The lone voice of dissent at that meeting was Jane Lumm (Ward 2), who opposed the resolution on philosophical and practical grounds. She pointed to similar pending legislation (Act 238) that might be enacted.

And the pending legislation was, in fact, passed and signed into law, which led to the city council’s action on July 16 again to suspend the use of CUB agreements.

The staff memo accompanying the resolution states that the suspension of CUB agreements does not affect the city’s living wage ordinance. Not discussed in the memo is how a Michigan Supreme Court order from April 7, 2010 might affect the city’s living wage ordinance. The order affirmed an unpublished court of appeals opinion that found a Detroit living wage law to be unenforceable.

During the brief council deliberations, Margie Teall (Ward 4) noted that the way the resolution is intended to work is that the use of CUB agreements will be suspended – but on the outcome of court decisions, the use of the agreements could be restored administratively.

Outcome: The council voted unanimously to approve the resolution suspending the use of CUB agreements.

Communications and Comment

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

Comm/Comm: Library Lane Parking Structure

Sandi Smith (Ward 1) reported on the grand opening of the new underground parking garage at South Fifth Avenue, called the Library Lane parking structure. [As of July 20, the parking facility was open with temporary occupancy permits, according to Susan Pollay, executive director of the Ann Arbor Downtown Development Authority. Remaining issues to be finalized include one elevator (which has a wall that's damp to the touch) and the water pressure in the fire suppression system.]

Smith invited mayor John Hieftje to reprise his remarks made on the occasion of the grand opening. He held forth at length. Highlights included the fact that the parking structure did not use any city general fund money, but rather money dedicated through the DDA. The parking structure revenue is supposed to pay for the bonds. [The DDA will be drawing on tax increment finance (TIF) capture for some initial capital costs and debt service.]

Later Stephen Kunselman (Ward 3) would pick up on the bond payment topic, noting that it was Build American Bonds that were used to pay for the structure. He wanted some communication directly from the city’s bond counsel on any restrictions to the possible uses for the parking spaces. By way of background, in April 2010 the Great Lakes Environmental Law Center had sent the council a letter outlining its view of the applicable restrictions. The concern in the letter is that dedicated use of spaces in the structure by private, non-governmental entities could jeopardize the federal subsidy provided to the city through this type of bond. [.pdf of GLELC bonding analysis]

Kunselman’s view is that any problem caused by a private entity undertaking a development on the site could be solved if the Ann Arbor District Library were to build its new building on top of the structure, just to the north of its current location. That same night, the AADL board voted to place a $65 million bond proposal on the Nov. 6 ballot for construction of a new library on its current site. It appears unlikely that the library would follow Kunselman’s suggestion.

Comm/Comm: Non-Partisan Elections, Public Speaking

During public commentary at the conclusion of the meeting, Michael Benson noted that of the eight candidates for four city council seats that are contested in the Aug. 7 Democratic primary, the vast majority have responded positively to the idea of converting Ann Arbor’s local city elections to a non-partisan format. Regardless of whether non-partisan elections are a good idea or bad idea, Benson said, he thought it might be good for the council to form a task force to study the issue and report back on it.

Benson also pointed out to the council that for that night’s agenda, more than 10 people had signed up to speak for public commentary at the start of the meeting. So some people who wanted to address the council on an action item had been assigned only an alternate slot and had not been able to address the councilmembers. Benson alluded to the fact that some speakers will meet the condition of speaking on an “agenda item” by referencing attachments of communications on the agenda, like minutes from various boards and commissions. He suggested that the council look at its priorities on allotting public speaking time. [Benson has previously suggested that the time per speaker be reduced from the current three minutes to two minutes, while adding 10 minutes to the current 30-minute time block. That would result in a doubling of the number of possible speakers from 10 to 20.]

Comm/Comm: AATA

Tim Hull related to the council how he had needed to travel to Canton and had discovered there is no way to ride on the Canton Express from Ann Arbor to Canton. [The service is configured for commuters from Canton to Ann Arbor, not the other way around. The issue has been raised by Stephen Kunselman (Ward 3) when the council has been addressed by Michael Ford, CEO of the Ann Arbor Transportation Authority.] Hull was critical of the AATA’s plan for countywide expansion – it amounts to an effort to get people from the county into Ann Arbor, and running empty buses out to Chelsea and Canton to start the service. AATA remains “woefully inadequate,” he said. He pointed to the New Year’s Day Winter Classic hockey game, a day when there’d be no regular bus service scheduled.

Comm/Comm: Better Services

Thomas Partridge told the council he was there as he has been for over a decade to lobby for increased services, attention and priorities for residents needing and deserving services the most. He told the council he was there as a candidate in the Democratic primary for the state house of representatives 53rd District, which covers most of Ann Arbor. [He's running against incumbent Jeff Irwin.] He called on the council and the public at large to adopt a progressive agenda. He called for expansion of affordable transportation and housing in a way that is balanced and that is backed by adequate appropriations. He contended that the expansion of employment in the city is being neglected.

During public commentary at the conclusion of the meeting, Partridge repeated his call for expanded services, including an expanded competent public transportation system. He lamented the lack of a public hearing on John Seto’s appointment as permanent police chief. He said the public deserves open, transparent government. It’s not good public policy to approve large contracts without due deliberations on them or to approve site plans that would require little children to walk in the streets, he concluded. [Partridge was alluding in his last comment to the Maple Cove site plan approved by the council that night. The site plan does not include sidewalks for a private street leading to single-family homes.]

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

Absent: Christopher Taylor.

Next council meeting: Thursday, Aug. 9, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [Check Chronicle event listings to confirm date]

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Eunice Burns, former Ann Arbor city councilmember and Downtown Development Authority board member, introduces herself to city administrator Steve Powers before the July 2 council meeting started. Burns was on hand to receive a proclamation for Huron River Day, which falls on July 15 this year. Burns, along with Shirley Axon, is co-founder of the event. (Photos by the writer.)

Most obviously fitting that theme was a resolution passed by the council directing the city’s planning commission to incorporate 16 sustainability goals into the city’s master plan. The 16 goals, which were compiled from existing planning documents, had worked their way through a community engagement process and were adopted by several city commissions before arriving before the city council. The goals fall into four categories: climate and energy; community; land use and access; and resource management.

Clearly related to land use and access (the goal of “preserve our natural systems”), as well as resource management (“eliminate pollutants in our air and water systems”) was a resolution directing city staff to develop a “green streets” policy. The policy would formalize an approach to stormwater management that would allow city street projects to incorporate various technologies to mimic natural processes, to reduce the amount of stormwater runoff that goes directly into the city’s stormwater pipes and on into the Huron River. Features like bioswales, for example, would filter stormwater through natural systems so that pollutants from street surfaces would not flow directly to the river.

The river itself was part of the meeting’s sustainability theme as it was highlighted with a mayoral proclamation in honor of Huron River Day, which falls on July 15 this year.

Among the specific sustainability goals in the category of “community” is one that addresses economic sustainability: “Develop a prosperous, resilient local economy that provides opportunity by … rewarding investment in our community …” In that spirit, the council took the first step toward awarding a tax abatement to Barracuda Networks, a company that recently announced it’s moving from its Depot Street location into downtown Ann Arbor as part of a planned expansion of its workforce.

Another agenda item could be analyzed as part of the “integrated land use” and “economic vitality” sustainability goals: final approval of a rezoning request for the Shell station on the northeast corner of Ann Arbor-Saline and West Eisenhower Parkway.

Fitting into the “community” sustainability category was a resolution that made Ann Arbor a member of the Washtenaw Health Initiative (WHI) by authorizing a $10,000 annual membership fee. The goal of the WHI is to help local health care providers handle an influx of an estimated 50,000 newly insured patients when federal health care reforms take effect in 2014. The specific sustainability goal is to “provide services that meet basic human needs of impoverished and disenfranchised residents to maximize the health and well-being of the community.”

The council also approved appointments to three city commissions that are connected thematically to the sustainability goals – environmental, greenbelt advisory, and planning.

Making the city of Ann Arbor more financially sustainable is not an explicit part of the sustainability goals adopted by the city council. Yet financial sustainability could be seen as an outcome of the council’s ratification of three different union contracts. All three contracts increase the retirement benefit vesting period for new hires from five to 10 years, and increase the period for the final average compensation calculation to five years from three. The three labor groups that had their contracts ratified were the police professional assistants, civilian supervisors, and the deputy police chiefs.

Some of the public commentary also featured a sustainability theme – as former Allied Bendix engineer Kermit Schlansker outlined the energy efficiency benefits of cisterns. Also weighing in during public commentary were opponents of the new “smart meters” that are being installed by DTE Energy in Ann Arbor and other Michigan communities.

In other business, the council approved a weapons screening contract with the Washtenaw County sheriff’s office – for the 15th District Court, located inside the new justice center along with the Ann Arbor police department.

During communications time, city attorney Stephen Postema updated the council on legal action related to the Dream Nite Club, which had its liquor license revoked earlier this year. He said four significant court rulings on lawsuits filed by the club’s owners against the city had gone the city’s way.

The council’s communications also included mention of two ballot questions that voters might have to decide in November. One is a renewal of the park maintenance and capital improvements millage. The council is almost certain to place that millage renewal on the Nov. 6 ballot. Another question is less certain – one that would change the city charter to require a voter referendum, if the city were to lease parkland. The charter already prohibits the sale of parkland without a referendum.

Sustainability Goals: Master Plan

The council considered a resolution directing the city planning commission to start a process of incorporating 16 sustainability goals into the city’s master plan. While that master plan review process is underway, the council’s resolution directs the city administrator to apply the 16 goals in staff work. [.pdf of 16 sustainability goals]

The sustainability goals are divided into four categories: resource management; land use and access; climate and energy; and community. By way of illustration, from the land use and access category, one of the goals is: “Establish a physical and cultural environment that supports and encourages safe, comfortable and efficient ways for pedestrians, bicyclists, and transit users to travel throughout the city and region.”

The goals were culled from more than 200 goals that are already found in existing city planning documents, as part of a project that began in early 2011. The work has been funded by a Home Depot Foundation grant.

Development of the work by city staff was initially guided by volunteers who serve on four city advisory commissions: park, planning, energy and environmental. Members from those groups met at a joint working session in late September of 2011. Since then, the city’s housing commission and housing & human services commission have been added to the conversation. A series of panel discussions on each category was held earlier this year, as was a public forum to solicit input.

The city planning commission voted on June 5, 2012 to recommend to the city council that it pass the resolution considered by the council on July 2.

Additional background on the Ann Arbor sustainability initiative is on the city’s website. See also Chronicle coverage: “Building a Sustainable Ann Arbor,” “Sustaining Ann Arbor’s Environmental Quality,” “Land Use, Transit Factor Into Sustainability,” and “Final Forum: What Sustains Community?”

Sustainability Goals: Public Commentary

Alan Haber told the council that in some circles he’s considered a pest. But he perseveres, he said. He supports the sustainability goals and he thinks they’re an important step. He related the notion of sustainability to the efforts of homeless people to organize their own community along the lines of Camp Take Notice. He then pointed to the city-owned building at 721 N. Main and contended that if the city made it available, that would help a community form, and that would be a part of the realization of sustainability goals.

Haber also contended that sustainability requires space for a community on top of the new underground parking structure on South Fifth Avenue. That space can change and create its own story, he said. When he attended a recent meeting of the Connecting William Street committee, which is working to develop possible scenarios for alternate uses of city-owned surface lots, all of the scenarios involved developing the top of the parking structure in some way. None of the scenarios allowed for open space there. The committee had not heard a word of the input that had been provided, he contended – because people all over town said they wanted an open space. That’s what the community wants, he said.

Kermit Schlansker.

Kermit Schlansker, a former engineer with Allied Bendix, told the council that the problem with wind and solar power is that it’s intermittent. A way to store the energy is needed, he said. He suggested that cisterns could be part of the solution. In the summer, he said, cistern water can cool buildings. In the winter, the use of a heat pump on cistern water – at 55 F degrees – would be relatively efficient, he said. Forget about rain gardens and rain barrels, he said, because they don’t store energy.

The big problem with cisterns, Schlansker said, is how to build them. The work of digging them has to be done by hand, but that would make jobs for poor people. He compared cistern digging to coal mining. The best way to store carbon is to leave it in the ground, he said. Like apartment houses, cisterns are one of the few energy devices that can last 1,000 years.

Sustainability Goals: Council Deliberations

At the July 2 meeting, Tony Derezinski (Ward 2) asked city planning manager Wendy Rampson to come to the podium. Rampson introduced Jamie Kidwell, sustainability associate with the city. Kidwell had done most of the work, along with some interns, Rampson said. City environmental coordinator Matt Naud and Rampson had assisted Kidwell, Rampson said. Kidwell ventured that many councilmembers had seen the sustainability goals through commissions and boards they sit on.

Derezinski asked Kidwell to give a succinct definition of sustainability. By way of responding to Derezinski, Kidwell noted that an effort had been made to build the vision of sustainability from existing planning documents. It’s from those documents that the four “chapters” were distilled: resource management; land use and access; climate and energy; and community. They build on the city of Ann Arbor’s 10 environmental goals that were adopted in 2007, she said.

Carsten Hohnke (Ward 5) asked Kidwell to talk about how we’ll know if the city is making progress. In responding, Kidwell alluded to the city’s State of Our Environment Report. She indicated that for sustainability, more detailed indicators would be developed along the lines of the environmental indicators. Those indicators will be tied to targets, she said, and she ventured that those indicators would be reviewed on a biennial basis.

Outcome: The council unanimously approved the resolution directing the planning commission to integrate the 16 sustainability goals into the city’s master plan.

Green Streets Policy

The council considered a resolution that directs city staff from a range of different departments to work with the environmental commission to develop a “green streets” policy.

The policy would formalize an approach to stormwater management that would allow street projects to incorporate an “array of products, technologies, and practices that use natural systems – or engineered systems that mimic natural processes – to enhance overall environmental quality and provide utility services …” The goals of developing and implementing the policy include a reduction in the amount of untreated stormwater flowing from streets directly to the city’s stormwater system and into the Huron River. By implementing systems like bioswales, for example, a portion of the stormwater runoff from streets, which includes contaminants from the road surface, would be filtered naturally before entering the river.

To emphasize the impact that the city’s streets have on stormwater runoff, a staff memo accompanying the resolution indicates that Ann Arbor’s 27 square miles includes 11.2 square miles of impervious surface, of which about one quarter (2.9 square miles) is the city right-of-way. City staff estimate that half of the runoff in the city’s stormwater system comes directly from the city right-of-way.

At the council’s meeting on June 18, 2012, city environmental commissioner Valerie Strassberg had addressed councilmembers, asking for their support in bringing the resolution forward. At that meeting, Sabra Briere (Ward 1) indicated she’d be bringing the resolution forward at the July 2 meeting. It was co-sponsored by Carsten Hohnke (Ward 5). Hohnke and Briere are the two city council appointees to the environmental commission.

The city staff who are directed to take part in the development of the green streets policy are in the systems planning, project management, field operations, parks and recreation, and planning departments.

The resolution was introduced by Briere. She noted that the city staff have already worked hard to implement various green streets approaches. However, the city has no policy about how to implement those approaches or what level of priority to assign them. She stressed that the green streets policy that will be developed by the environmental commission under the direction of the council’s resolution would come back to the council for its review. The council would then decide if the policy has been properly developed.

Hohnke characterized it as a move to provide formal guidance. City staff have been involved in the green streets techniques. And this approach has always been a growing part of how the city has thought about managing its streets, he said. Stormwater has an impact on infrastructure and the quality of our water, he continued. The city should bring new technologies to bear on this problem. Those technologies include pervious pavement and a “whole suite of actions that improve stormwater runoff.”

Jane Lumm (Ward 2) stated that she does support the resolution. She offered her thanks in advance to the staff and the environmental commission for the work they’d be doing. However, she wanted to add that when the green streets policy comes back to the council for review, she hopes to see supporting data that clearly articulates costs and benefits, including benchmark data with other cities. She noted that the council had recent approved a pervious pavement project, and it wasn’t clear what the capital and operational differentials were. She understood that a policy doesn’t mean something is set in stone. But she wanted a solid sense of the costs that are contemplated by the green streets policy.

Outcome: The council voted unanimously to direct the development of a green streets policy.

Huron River

The Huron River was featured twice during the meeting – in connection with a proclamation about Huron River Day, and during public commentary about park rules against swimming in the river.

Misty Lyn and the Big Beautiful from their Sonic Lunch performance during the summer of 2011. From left: Ryan Gimpert, Misty Lyn, Matt Jones, Carol Gray, Jim Roll.

Huron River: Huron River Day

The proclamation in honor of Huron River Day is an annual one. This year the celebration falls on July 15. Co-founders of the event – Eunice Burns and Shirley Axon – were on hand to receive the proclamation.

Burns put in a plug for one of the bands that’s playing this year: Misty Lyn and the Big Beautiful. She noted that her granddaughter, Carol Gray, plays in the band.

In her brief remarks to councilmembers, Burns told them that some new events are included this year, among them a triathlon. The three legs of the event require bicycling from Argo to Gallup, running a circuit on land around Argo Pond and then kayaking back down to Gallup. [Swimming is not a part of the triathlon.]

Huron River: Swimming

David Collins introduced himself as an avid canoeist and occasional swimmer. He told the council he wanted to address some signs he’d seen posted at the Argo Cascades [a new bypass around Argo Dam that includes a series of drop pools]. The posted signs indicate that no swimming is allowed pursuant to Chapter 39 of the city code, which Collins described as apparently prohibiting swimming from city-owned land adjacent to waterways, except for those areas that are designated for it.

By way of background, Chapter 39 reads in relevant part:

3:2. – Restrictions.
While in a park, no person shall:
…
(16) swim, dive or play golf or hockey except in areas specifically designated for such purpose.

The idea of swimming in the Argo Cascades had been discussed at the park advisory commission meeting on May 15, 2012, when commissioners ventured that it might be a way to deal with the heat. From The Chronicle’s coverage:

David Barrett ask about the possibility of people swimming in the pools of the cascades – especially as the weather gets warmer. Colin Smith [the city's parks and recreation manager] noted that there’s a park rule against swimming in the river using parkland as a bank. And given the level of boating activity in the cascades, he said, if the intent was to go for a relaxing dip, it wouldn’t be all that relaxing.

During his remarks to the council on July 2, however, Collins contended that the park rule was unenforceable. He appreciated the city’s interest in promoting safety and in protecting itself from liability. But the city, he contended, does not have the authority to enact an ordinance like Chapter 39 that restricts use of the river. He cited the public trust doctrine that governs riparian rights and referred to a state of Michigan publication – ”Public Rights on Michigan Waters“:

It is quite clear that although a riparian owns the fee to the bed of a navigable (public) stream, his ownership is subordinate to the right of the public to the free and unobstructed use of the stream for navigation, fishing, swimming and other uses inherently belonging to the public.

Collins noted that if the city “invites guests,” it might have additional responsibility. For open and obvious dangers, he said, the city did not have liability. Only when the risks are hidden dangers are there real issues, he said.

Rather than post warnings about violations of an abstract, unenforceable piece of the city’s code, Collins suggested that the signs should provide warnings about real danger – like sharp, hidden rocks. That kind of sign could be more effective to prevent people from trying to use the Argo Cascades chutes as a water slide.

Barracuda Tax Abatement

The council considered setting a public hearing under Michigan’s Act 198 of 1974 on establishing an industrial development district for 317 Maynard St. in downtown Ann Arbor. Setting the hearing – for Aug. 9, 2012 – is the first of several actions that will be necessary to grant a tax abatement to Barracuda Networks, which is relocating from Depot Street to the downtown property owned by First Martin Corp. A letter dated June 1, 2012 from First Martin to the Ann Arbor city clerk requested the establishment of the district.

After the public hearing on the district, the council will need to vote on establishing the district. Then Barracuda Networks will need to apply for the abatement. The city council will need to vote to set another public hearing – this time on the abatement. And then the council will need to vote on the abatement itself. According to reports from Barracuda, the value of the abatement to be requested is estimated at around $85,000.

The city is prohibited by state statute from abating taxes on any more than 5% of the total state equalized value (SEV) of property in the city. Responding to an emailed query in May 2012 (in connection with a tax abatement for Sakti3), Tom Crawford, the city of Ann Arbor’s chief financial officer, wrote to The Chronicle that total SEV for the city for 2012 stands at $5,294,974,640, and the total SEV of abated property in 2012 is $8,935,974. That works out to 0.169% – well under 5%.

Outcome: Without discussion, the council voted to set a public hearing for Aug. 9, 2012 on establishing an industrial development district for 317 Maynard St.

Shell Station Rezoning, Site Plan

The council considered final approval of a request to revise the zoning regulations associated with the parcel on the northeast corner of Ann Arbor-Saline and West Eisenhower Parkway, where a Shell service station is located.

The city planning commission had previously voted unanimously to recommend approval of the zoning changes at its April 17, 2012 meeting.

The council was also asked to consider the site plan for the project.

Owners of the station are asking for revisions to the site’s planned unit development (PUD), which would allow them to build additions onto the existing 1,000-square-foot convenience store. The new additions would total 4,089 square feet, including 2,189 square feet to the north and east of the store. Their plan also calls for converting the 900-square-foot carwash area into new retail space. The existing access drive to the carwash would be landscaped, and the parking lot would be reconfigured for a new total of 16 spaces.

According to a planning staff memo, the PUD revisions were recommended because they are seen as providing an overall benefit to the city, by: (1) supporting the continued viability of retail options for the surrounding neighborhood; (2) creating job opportunities from this expansion; and (3) controlling the architectural design standards of this building as a gateway into the city.

The initial approval to the PUD rezoning was given at the council’s May 21, 2012 meeting.

Shell Station: Public Hearings

Separate public hearings were held on the PUD rezoning and the site plan.

Thomas Partridge was the only person who spoke at either hearing. He introduced himself as a resident and candidate to represent the 53rd District in the Michigan house of representatives. He called on the city council to come together behind a specific and firm commitment to affordability goals and environmental goals as part of the sustainability goals that were on that evening’s agenda. Those goals should include a commitment by service stations to support the public transportation system, he said. Service stations should be required to provide charging stations for electric vehicles, he contended. They should also be required to provide adaptable technology for hydrogen-powered vehicles.

Partridge called for the zoning change to be revised to require access to affordable housing.

Outcome: Without discussion, on separate votes, the council unanimously approved the site plan and rezoning request for the Shell station at the northeast corner of Ann Arbor-Saline and West Eisenhower Parkway.

City Membership in Washtenaw Health Initiative

The council considered a resolution that allows the city of Ann Arbor to become a member of the Washtenaw Health Initiative (WHI). The resolution altered the budget for fiscal year 2013 (which began July 1, 2012) by adding $10,000 of general fund money to the budget for the office of community development – to cover the membership fee for this year. The resolution also recommends consideration of renewing the membership next year. [The city of Ann Arbor adopts budgets only one year at a time.]

A goal of WHI is to help local health care providers handle an influx of an estimated 50,000 newly insured patients when federal health care reforms take effect in 2014. The goal is to develop a plan to provide better health care for the county’s low-income residents, the uninsured and people on Medicaid – prior to changes that will be mandated by the federal Patient Protection and Affordable Care Act, recently upheld by the U.S. Supreme Court.

Currently, 2,719 people in Washtenaw County are already eligible for Medicaid but not enrolled – and of those, 958 are city of Ann Arbor residents.

The WHI is a collaboration co-chaired by former county administrator Bob Guenzel and retired University of Michigan treasurer Norman Herbert, along with Ellen Rabinowitz, executive director of the Washtenaw Health Plan. The effort is jointly sponsored by the UM Health System and Saint Joseph Mercy Health System, and facilitated by Marianne Udow-Phillips, director of the Center for Healthcare Research & Transformation – a joint venture of UM and Blue Cross Blue Shield of Michigan.

Other partners involved in the project include the Ann Arbor/Ypsilanti Regional Chamber of Commerce, Arbor Hospice, Catholic Social Services, Dawn Farm, Hope Clinic, Huron Valley Ambulance, Integrated Health Associates, Packard Health, Planned Parenthood of Mid and South Michigan, United Way of Washtenaw County, and the Women’s Center of Southeastern Michigan.

The Washtenaw County board of commissioners voted on April 4, 2012 to make the county a member of WHI – and approved the $10,000 membership fee. The city and county are two of over 30 members of WHI, who have together contributed more than $100,000 to the effort.

Washtenaw Health Initiative: Council Deliberations

Appearing before the council were Bob Guenzel, community co-chair of WHI, and Marianne Udow-Phillips, director of the Center for Healthcare Research & Transformation. CHRT is facilitating the initiative, Udow-Phillips told the council.

Sabra Briere (Ward 1) noted that when the council had been briefed about the initiative at a previous working session, councilmembers had been told they’d eventually be asked for funding. Briere asked: What will the $10,000 help accomplish? Guenzel noted that WHI has been a voluntary effort led by the two major health systems in the area – the University of Michigan Health System and Saint Joseph Mercy Health System. Guenzel continued by saying that retired Saint Joseph Mercy Health System CEO Bob Laverty had started the effort and that Udow-Phillips had provided her organization’s support. The first year and a half, Guenzel said, the entire effort had been voluntary. They’d decided they didn’t want to incorporate as a 501(c)(3).

Instead, he said, they’re asking entities to become charter members of the organization. Many of the member agencies contribute in-kind support, he said – like the hospitals and safety-net clinics. For next year, Guenzel said, they’ve developed a budget of about $100,000. That will ensure the availability of a dedicated employee from Udow-Phillips’ CHRT.

Guenzel told the council that WHI had approached the two major health systems for support and they’d agreed to help with $30,000 each. But the two health systems also wanted the community to contribute a piece of the support. Guenzel said that WHI had asked the Ann Arbor Area Community Foundation, United Way and the Washtenaw County board of commissioners for $10,000 a year. So WHI was now asking the city to contribute the same amount that the county had contributed.

Guenzel felt that this approach is effective and efficient. CHRT has made a great commitment, he said, in terms of their expertise and their ability to draw other agencies together. Whether the Affordable Health Care Act was upheld or not, Guenzel said, WHI thinks the initiative is important. The Supreme Court ruling meant that it had gotten over one hurdle, but he expected there would be others.

Guenzel concluded by allowing he’d given a long answer to Briere’s question. Briere told him it had been a good answer.

Briere followed up by asking how WHI will dovetail with what the state of Michigan does. Udow-Phillips responded to Briere’s question by saying that assuming the state moves ahead with Medicaid expansion, the WHI efforts will help the community plan to provide access to health care for those who’ll be newly insured. Even if the state does not move ahead with an expansion of Medicaid, she said, then the state or the federal government will move ahead by establishing a health care exchange. That will result in 300,000-400,000 people in Michigan who will get subsidies to buy private health insurance. Many of those people will be in Washtenaw County, she said, so by planning, the county’s health care system will be able to serve these newly-insured people.

In Washtenaw County, Udow-Philips continued, there are about 28,000 people who are uninsured. About 13,000 of those would be eligible for Medicaid under a Medicaid expansion, and most of those would be eligible for a subsidy to purchase private insurance, if that’s the route that’s taken.

Tony Derezinski (Ward 2) said he’s happy to hear this news. Ann Arbor is a great place to retire, he said, because of the quality of the health care. He asked Udow-Philips if she’d looked at other community health plans before developing an approach. She indicated that the model was Massachusetts – and the planning that Massachusetts had failed to do. When more people became eligible, there were not enough providers to give them access, she said. Massachusetts had not done the kind of planning WHI is doing in this county, she said. Once the Affordable Health Care Act was passed, the WHI organizers decided they wanted to do the necessary planning. No other counties are doing the kind of planning WHI is doing, she said. She’d like Washtenaw to be a role model for other counties in Michigan.

Carsten Hohnke (Ward 5) thanked Udow-Philips for her efforts. If it turns out that WHI determines there’s a lack of health care capacity compared to the needs of the newly-insured, Hohnke wanted to know what some of the options are for expanding that capacity. Udow-Philips told Hohnke that they’re in the final stages of that analysis right now. Both major health systems are bringing in more practitioners to Washtenaw County, she said. But it’s important to make sure those practitioners serve the Medicaid population. So WHI is working with major safety-net providers – like the Packard Clinic, Ypsilanti Family Practice and the Taubman Center – to make sure practitioners will be available. Udow-Philips stressed that not just doctors are considered practitioners – it could mean nurse practitioners, she said. The preliminary numbers would be looked at the following week, she said, to look at what the gap in capacity might be.

Outcome: The council voted unanimously to approve the $10,000 of support for the Washtenaw Health Initiative.

Commission Appointments

The council considered confirmation of four nominations to three different commissions; all nominations had been made at the council’s previous meeting, on June 18, 2012.

Toward the end of the July 2 meeting, Ken Clein and Kirk Westphal were considered as appointments to the city planning commission. The late agenda slot is reserved for confirmation of mayoral nominations. The vast majority of board and commission appointments are made by the mayor.

However, nominations to the environmental commission and the greenbelt advisory commission are made by the council as a body. So those confirmation votes came relatively early in the meeting as a part of “council business.” The council considered John German’s nomination to the city’s environmental commission and Archer Christian’s nomination to the greenbelt advisory commission.

Appointments: Christian to Greenbelt

On the greenbelt advisory commission, Christian is replacing Mike Garfield. Garfield is director of the Ecology Center, a nonprofit based in Ann Arbor, and Ms. Christian is the center’s development director. Garfield was term-limited as a GAC member, having served two consecutive three-year terms. The spot vacated by Garfield is not designated for a representative of the Ecology Center. However, the nine-member commission includes two slots for representatives of environmental and/or conservation groups. The greenbelt advisory commission oversees the proceeds generated by two-thirds of the city’s open space and parkland preservation millage, which is levied at a rate of 0.5 mills.

Council deliberations were brief. Carsten Hohnke (Ward 5), who serves as the city council’s representative to the greenbelt advisory commission, reminded his colleagues that Ms. Christian is filling a slot on the commission designated for someone who works with a conservation organization. Christian also has a long history of involvement in land conservancy, Hohnke said.

Outcome: The council unanimously confirmed Archer Christian’s appointment to the greenbelt advisory commission.

Appointments: German to Environmental

John German’s term on the environmental commission expired in August 2011, but he has continued to serve. His nomination and confirmation amounted to formalizing what was already the case. German’s background includes work with Chrysler, the U.S. Environmental Protection Agency, Honda, and the International Council for Clean Transportation.

Ann Arbor’s environmental commission was established 12 years ago through a city ordinance, with the charge to “advise and make recommendations to the city council and city administrator on environmental policy, environmental issues and environmental implications of all city programs and proposals on the air, water, land and public health.”

The council’s deliberations consisted of a reminder from Sabra Briere (Ward 1), one of the council’s representatives to the environmental commission, that German is currently serving on the commission, that his re-appointment was missed at its time of renewal last year. So the appointment the council would be making, she said, would extend retroactively. The three-year term would thus end on Aug. 7, 2014.

During her communications time, Briere also announced that applications for a vacancy on the commission would be considered at the commission’s next meeting. She encouraged people to apply.

Outcome: The council voted unanimously to confirm John German’s appointment to the environmental commission.

Appointments: Clein, Westphal to Planning

On the city planning commission, Ken Clein, a principal with Quinn Evans Architects, replaces Erica Briggs, who did not seek re-appointment. Among the architectural projects Clein has worked on locally are the University of Michigan’s Hill Auditorium renovation, the new Ann Arbor municipal center, and the Zingerman’s Deli expansion.

Kirk Westphal’s appointment was a re-appointment. Westphal is principal at Westphal Associates, a firm that produces video documentaries. He holds a master’s degree in urban planning from the University of Michigan. City planning commissioners serve three-year terms.

Outcome: The council voted unanimously to confirm the appointments of Ken Clein and Kirk Westphal to the planning commission.

Labor Agreements

The council considered separately three collective bargaining agreements with members of the Teamsters Local 214: with the police professional assistants (4 employees), the deputy chiefs (2 employees) and the civilian supervisors (~30 employees). Robyn Wilkerson, human resources and labor relations director for the city of Ann Arbor, responded to questions from Jane Lumm (Ward 2).

From left: Marcia Higgins (Ward 4) confers with Jane Lumm (Ward 2).

Lumm had questions about the new-hire pension program, which the city began implementing for its employees last year. It involves increasing the vesting period for the pension program from five years to 10 years, and calculating the pension based on a final average compensation of five years instead of three years. All of the collective bargaining agreements include no wage increase, but instead a lump sum payment of $1,000. The contracts for all three units are for two years, through June 30, 2014.

Wilkerson clarified for Lumm that the same pension program language is in previous agreements – for police and fire department employees. It’s now officially city-wide. Lumm inquired if it had been discussed by the council’s labor committee. Marcia Higgins (Ward 4) indicated that the policy had been considered and moved forward in June 2011.

Higgins, who serves as chair of the council’s labor committee, explained that the contracts came up quickly on the council’s agenda because the items move to the agenda when the bargaining units ratify the contracts. City administrator Steve Powers confirmed that the collective bargaining units had just ratified the agreements the previous Thursday. Lumm briefly mulled the possibility of asking for postponement, but decided simply to express her view that she feels strongly that the city needs to move to a defined contribution plan instead of the defined benefits plan it currently has. She reminded her colleagues that she had been prepared to bring forward a resolution on the night they’d deliberated on the FY 2013 budget – a resolution that would have directed the development of a defined contribution plan. That night she’d declined to put the resolution before the council, due to the meeting’s late hour, but she indicated at the July 2 meeting that she’d bring the proposal to the council’s budget committee.

Stephen Kunselman (Ward 3) observed that with the move to shorter, two-year contracts, the city would basically be in a phase of continuing negotiations. Wilkerson pointed out that they are all two-year agreements with wage re-openers after one year. She observed that since the state legislature has passed a law regulating how much public employers could contribute to employee health care, it means that the focus of the bargaining is on wages. Kunselman ventured that there would be plenty of time to address the issues if concerns come up.

Lumm asked how many employees were in the group of civilian supervisors. Wilkerson told her it was about 30. Lumm wanted to know if Wilkerson had a sense of how many new hires would be made in that category. Wilkerson indicated that based on what she was seeing in other departments, she thinks there will be a significant increase in retirees.

Outcome: On three separate votes, the council unanimously approved the collective bargaining agreements.

Weapons Screening Contract

On the July 2 agenda was a resolution to approve a contract with the Washtenaw County sheriff’s office. The city would pay $187,000 annually for the sheriff’s office to provide weapons screening services for the 15th District Court, located inside the city’s new justice center building at the corner of Fifth and Huron.

The contract pays $25.25 per hour per officer, with the number of officers estimated to be roughly three each day. Currently, the weapons screening takes place at metal detectors at the building’s entrance.

During the brief council deliberations, Jane Lumm (Ward 2) recalled the council’s previous discussion about the location of the security checkpoint within the building.

The city council engaged in lengthy deliberations at its April 2, 2012 meeting about the placement of the security check. The context of those deliberations was a vote on the acquisition of Ed Carpenter’s proposed “Radius” sculpture, at a cost of $150,000, to be installed in the lobby of the justice center building. As proposed, and eventually approved by the council, viewing the sculpture from inside the building during normal business hours would require going through a security check.

Lumm asked about a meeting of the city council’s building committee that had been mentioned at the time. City administrator Steve Powers told her that a meeting of that committee had been set for July 16. The meeting will include a discussion of the location of the security checkpoint.

Ballot Questions

The Ann Arbor city council has until its second meeting in August to put various questions before voters on the Nov. 6, 2012 ballot.

Ballot Questions: Charter Amendment on Leasing Parks

During communications time at its July 2 meeting, the council heard from Jane Lumm (Ward 2) that she and Mike Anglin (Ward 5) are working to bring a ballot question to Ann Arbor voters that would further tweak a city charter provision related to the sale of parkland.

The charter provision had been approved in November 2008 by a 81%-19% margin (42,969 to 9,944). The tweak would involve adding actions like “lease,” “license,” or “re-designate” to the set of actions on city parkland that require a voter referendum.

The 2008 ballot question had asked voters if they wanted to add a clause to the city charter that would prevent the sale of city parkland without a voter referendum. Michigan’s Home Rule City Act already lists among a city’s prohibited powers: “… to sell a park, cemetery, or any part of a park or cemetery, except where the park is not required under an official master plan of the city …” But that year some residents were concerned that the city was looking to sell Huron Hills golf course – and they saw the exception in the state statute as a possible loophole. The council voted to place the question before voters that year over dissent from councilmember Marcia Higgins (Ward 4) and former councilmember Leigh Greden.

That year, the council had consciously settled on wording that included just selling, as opposed to leasing. In an Oct. 31, 2008 Ann Arbor News article, mayor John Hieftje was quoted as follows: “From time to time, we’ve thought about how nice it might be to have a restaurant near the river. I think it’s something people would really enjoy … That would be impossible if the ballot measure was expanded to include leasing.”

What prompts the current desire to contemplate adding “leasing” and other arrangements to the mix is concern that a portion of Fuller Park could eventually be used for a new rail station. Amtrak currently operates a station on Depot Street near the Broadway bridges. [See coverage of the council's June 4, 2012 meeting, when it accepted a $2.8 million federal grant to complete a planning study to confirm the Fuller Road site as the locally preferred alternative location for a new rail station.]

One draft of the ballot question that Lumm and Anglin are crafting reads: “Shall the voters of the City of Ann Arbor amend the city charter to require that the city shall not sell, lease, license, re-categorize or repurpose, without the approval, by a majority vote of the electors of the city voting on the question at a regular or special election, any city park, or land in the city acquired for a park, cemetery, or any part thereof?” Lumm indicated that she’d bring the resolution to the council for a vote at its July 16 meeting.

Mike Anglin (Ward 5).

Lumm recounted much of the history of the previous charter amendment and thanked assistant city attorney Mary Fales for her help in drafting the ballot question.

Later during a second round of council communications, Anglin followed up on Lumm’s remarks. He described the history of the 2008 resolution as not enjoying support from some environmental groups – saying that many people knew the language was imperfect when it was presented. Still, Anglin said, the charter amendment was a way of moving something forward that was needed at the time. There’s always been a group of people who are interested in how to further protect our parks, he said. When the PROS (parks and recreation open space) plan was adopted [at the city council's March 7, 2011 meeting], Anglin said he refused to voted for it because he felt that the plan was not as assiduous as it should be about protecting the city’s own land.

From The Chronicle’s coverage of Anglin’s opposition to the PROS plan in early 2011:

Mike Anglin (Ward 5) weighed in saying that he was 95% in favor of the plan but had some problems with it that would lead him to vote against it. He then read aloud a statement with objections, including issues with the proposed Fuller Road Station and public-private partnerships in the parks.

Speaking about the upcoming charter amendment resolution, Anglin allowed that there are a number of “tricky” items in it. But he felt it’s important to continue to work to fulfill the intent of the 2008 charter amendment. He said he’d be talking to individual councilmembers about it, and he hoped it could make it onto the ballot in November.

Ballot Questions: Park Maintenance & Capital Improvements Millage

While council support for placing a parkland lease question on the November 2012 ballot is uncertain, it’s likely that the council will follow the park advisory commission’s recommendation to place a renewal of the parks maintenance and capital improvements millage on the ballot. Christopher Taylor (Ward 3), who is one of two council ex officio members of PAC, indicated that consideration of that millage question would take place at the council’s July 16 meeting.

Taylor described PAC’s approach in evaluating the millage renewal as a long and diligent process to put the renewal of the existing parks millage before voters in November. PAC has also recommended that the council re-affirm the administrative policies that guide the use of the taxes generated by the millage.

Ballot Questions: Art, Non-Partisan Elections?

Other possible ballot questions that have received some consideration by councilmembers include a charter amendment that would make city elections non-partisan.

And during deliberations on May 7, 2012 about a piece of public art to be commissioned for the city’s new justice center, Stephen Kunselman (Ward 3) mentioned the possibility of establishing a millage just for public art. That would require placing a question on the ballot.

Locally, any city of Ann Arbor ballot questions might be joined by one that is likely to be put forward by the Ann Arbor District Library to support a downtown building project. A countywide transportation millage is less likely to be placed on the November ballot, given the delays in approval of all the necessary documents.

Communications and Comment

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

Comm/Comm: Voting

During his turn at public commentary at the conclusion of the meeting, Thomas Partridge called on all clerks in all jurisdictions in the next few days to promote voter registration before the deadline [July 9, 2012 for the Aug. 7, 2012 primary].

Example of a voter registration card recently mailed to Ann Arbor residents.

It’s important that citizens express themselves at the polls, Partridge said. Voting should be made more accessible and barriers to voting must be removed, he said. It should also be possible to vote without producing undue amounts of personal information and documentation. He also stated that serious consideration should be given to internet voting in the state of Michigan

And during his communications time at the start of the meeting, city administrator Steve Powers noted that residents have received in the mail an updated voter registration card. The reason for that is related to redistricting in connection with the 2010 census. The outcome of the changes in the city ward boundaries had not changed the voting location for the vast majority of residents, Powers noted, but the notification is required by law to be sent out.

Comm/Comm: Pool Closing

During his communications time, city administrator Steve Powers reported that the closure of Veterans Memorial Park pool had been caused by a pump failure – caused by a small towel getting into the mechanism. Staff are looking at ways to prevent that in the future, he said. [The pool is expected to be closed until July 11, 2012.]

Comm/Comm: 4-3 Jackson Lane Conversion

At its April 2, 2012 meeting, the Ann Arbor city council voted to submit a request to the Michigan Dept. of Transportation to convert the segment of Jackson Road between Maple Road and South Revena from four traffic lanes to three. At the council’s July 2 meeting, during his communications time, Mike Anglin (Ward 5) called that action by the council premature. [He and Jane Lumm (Ward 2) had voted against submitting the request.] Because of the public outcry, Anglin said, MDOT had scheduled another meeting: on Tuesday, July 10 from 5-8 p.m. at Abbott Elementary School, 2670 Sequoia Parkway.

Anglin said that commuters, who will be affected by the conversion, are also part of the community. He allowed that he’d also heard from members of the bicycling community on the issue [many of whom support the lane conversion].

Comm/Comm: Affordable Services

As he typically does, Thomas Partridge addressed the city council at the beginning of the meeting during public commentary reserved time and at the conclusion of the meeting as well. During his first turn at public commentary, he told councilmembers he’s running for state representative in the 53rd District of the Michigan house of representatives. He called for greater attention to affordable housing, transportation, health care and education. He also stated that it’s important to provide economic development and job growth for the city, the county and the region. As a representative, he said, he’d take on these goals and build from the ground up and fully fund these areas.

Comm/Comm: Smart Meters

Several people reprised public commentary from previous council meetings – on the topic of “smart meters,” which can record electricity consumption at relatively small intervals (less than an hour). The meters then communicate that usage information to the utility for monitoring and billing purposes. For the first time at an Ann Arbor city council meeting, a resident questioned the scientific and health claims made by those who oppose installation of the meters.

DTE smart meter.

Linda Kurtz expressed her objection to smart meters based on health effects. She described the biological mechanism by which smart meters affect the human body – by disrupting the regular voltage differences across cellular membranes. RF radiation dislodges calcium ions and causes membranes to leak, she contended, and it disrupts the blood-brain barrier.

Carol Neylon called it unconscionable that DTE has been allowed to install smart meters. She cited a multitude of independent issues, including personal privacy concerns and health issues. She contended that in Toronto, where such meters had been installed, the impact had been that customers received higher bills. She was concerned about the ability of DTE to shut off someone’s power remotely and to track energy usage 24/7. She characterized smart meter installation as being about a big company doing whatever it takes to make profits.

Bethanni Grecynski cited privacy concerns. She expressed concern about the ability to hack the system and obtain people’s energy consumption information. Although an option was being discussed to opt out of smart meter installation, she contended that it would cost $50/month. Many people can’t afford to pay that. She also contended that the smart meters can cause people’s bills to go up. She questioned whether it’s fair that only the rich can opt out – that didn’t seem like an American idea to her.

But her real interest, said Grecynski, is health. She allowed that statistics have shown the smart meters are safe – but she asked councilmembers to remember how cigarettes and processed food were once thought to be safe.

Nanci Gerler told councilmembers that she’d lived in Ann Arbor 44 years. She noted that she had appeared before the city council previously. She’s not happy about the continued installation of smart meters in the community. A recent meeting about smart meters held at Crazy Wisdom bookstore was standing-room only, she reported, so concern is growing. She noted that a Michigan Public Service Commission (MPSC) report recommends an opt-out provision. Now, she said, DTE has 90 days to respond. But in the meantime, the community will be saturated with smart meters, she said. She contended that the effect is already palpable for those who are hypersensitive to electromagnetic radiation.

Michael Benson introduced himself as a Ward 2 resident, but wanted to address the council as a graduate student in the University of Michigan radiation laboratory. He deals with electromagnetic radiation on a regular basis, he said. He’s not an expert, he allowed, but felt it was appropriate to provide a few facts. He noted that public commenters had said that smart meters provide additional RF radiation – sure, that’s true, he said. A cell phone, or a computer, or even the microphone he was speaking into are radiating a little bit. The FCC provides standards for levels of radiation that are acceptable, he continued, and testing is done by the NIH (National Institutes of Health). Cell phones operate at a maximum of 1W of transmitting power compared to smart meters at 250 mW – or about 1/4 the level of a cell phone, he said. Those figures are the maximum – and they’re often below that, he said.

Benson also observed that during public commentary, councilmembers had heard about electromagnetic hypersensitivity. He contended that WebMD is a pretty good reference source for medical conditions, and this condition is not listed on WebMD. Benson told the council he was not there to comment on the public policy issue of smart meters, but as far as the science goes, he suggested that councilmembers take everything they’d heard “with a grain of salt.”

By way of anecdotal illustration, no apparent impact can be seen on The Chronicle’s measured residential electricity use since installation of a smart meter in March 2012:

Over the last four fiscal years, electricity usage at The Chronicle’s residence has shown essentially the same seasonal variation. Green bars are the most recent year. Lines are previous years.

In this gas-furnace house (thermostat 60 F), supplemented by electric space heaters, the electricity usage (blue bars) patterns with heating/cooling degree days.

Comm/Comm: Dream Nite Club Lawsuit

During his communications time, city attorney Stephen Postema told the council that before that night’s meeting, Tony Derezinski (Ward 2) had asked Postema to mention the Dream Nite Club cases. [The city had taken steps that led to the revocation of the club's liquor license. For some previous Chronicle coverage, see the March 19, 2012 city council meeting report.]

Four significant rulings – two in federal court and two in state court – had gone the city’s way, Postema reported. The ruling illustrated the importance of the process the city followed, he said. The courts had upheld every aspect of the city’s action. Postema stressed that a liquor license does not involve just rights, but also responsibilities.

Postema described Derezinski’s handling of the liquor license hearing, over which Derezinski had presided, as requiring “great patience.” Postema felt like the judges in the cases had read the entire transcript of the hearing. The conclusion had been that all the due process elements were met. Postema stated that the city was ready to be challenged, and it was gratifying to have the courts confirm the city’s position. He also emphasized that the entire process associated with revoking the Dream Nite Club liquor license had taken a lot of work – and people sometimes forget the amount of work that it takes to do the business of the city.

Not reported by Postema to the council at their meeting was the filing earlier that day, July 2, of a motion to set aside the judgment that had been made against the Dream Nite Club owners by judge Paul Borman. The motion seeks to set aside the judgment and to file an amended complaint. The amended complaint lists out a number of specific allegations, including the use of racial epithets by individual Ann Arbor police department officers in their interactions with Dream Nite Club management staff. The amended complaint alleges that AAPD officers had indicated a desire to shut down the club because of its black clientele, and had scrutinized black patrons in a manner that white patrons were not forced to undergo.

The original complaint did not include those specific allegations.

Borman’s opinion in dismissing the case had been based on the unamended complaint. Borman’s ruling relied in part on a U.S. Supreme Court case, Ashcroft v. Iqbal (2009).

Defendant City of Ann Arbor’s increase in police activity outside of Plaintiffs’ nightclub after a violent incident may have incidentally impacted the racial minorities who happen to patronize Plaintiffs’ nightclub, but the purpose of increasing the police presence was not to target racial minorities. The facts alleged impel the conclusion that police activity increased as a result of crime at and in the vicinity of the nightclub. Thus, Plaintiffs’ conclusory allegations of racial animus “are … not entitled to be assumed true.” Iqbal, 556 U.S. at 681.

Inferring racially discriminatory intent from the sequence of events alleged in the Complaint, as Plaintiffs ask the Court to do, requires an inferential leap that is not supported by the facts.

The Iqbal case was significant, because it’s been analyzed as signaling a change in the basic way that courts are supposed to consider motions to dismiss a case. Following Iqbal requires district courts to distinguish allegations that are statements of fact from those that are conclusions of law. It’s been analyzed as a return to “fact pleading” – which requires a claim to include all the relevant facts in support of the claims that have been asserted. From 1938 until Iqbal, the prevailing system had been “notice pleading,” which requires only sufficient facts to put someone on notice about the claims asserted against them. Under “notice pleading,” the expectation is the facts would be introduced partly under the discovery process – where a plaintiff would be able to depose witnesses and subpoena additional documents from a defendant.

Comm/Comm: Human Rights

Sandi Smith (Ward 1) who also serves on the city’s human rights commission, announced that the commission is partnering with the Michigan Department of Civil Rights to hold a public hearing on Thursday, July 12, from 6:30-9 p.m. in the city council chambers in city hall. The purpose of this hearing is to hear testimony on discrimination based on sexual orientation and gender identity – especially as it relates to the Elliot-Larsen Civil Rights Act.

Comm/Comm: Nuclear Weapons

Odile Hugonot Haber addressed the council on the topic of nuclear weapons. She recalled how 10 years ago she’d organized a week-long teach-in on nuclear weapons. She lamented the fact that not very much progress is being made – nuclear states are not reducing their stocks. The weapons will be smaller and meaner, she said. We’re spending a trillion dollars on nuclear weapons rather than on life, she said, and that’s concerning to her.

Comm/Comm: Half-Crosswalks

Kathy Griswold told the council that in the course of her work to document crosswalks and intersections that do not have adequate sight distance, she’d noticed two crosswalks that are only “half a crosswalk.” One is in front of Casey’s Tavern on Depot Street – on the north side of the street there’s not anything, but on the south side there’s a curbcut. The other location is on Traver at Nixon. She said there’s a curbcut on the south side of the street, but nothing on the north side.

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

Absent: John Hieftje.

Next council meeting: Monday, July 16, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [confirm date]

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