Baker Commons is a 64-unit building located at the southeast corner of Packard and Main, within the DDA district. Miller Manor is a 103-unit building on Miller Avenue outside the DDA district, but within a quarter-mile of the district boundary. That conforms with the DDA’s policy on use of its tax increment finance (TIF) funds for housing.

The $600,000 – which is to be paid in three $200,000 annual installments starting this year – was approved at the DDA board’s April 2, 2014 meeting. The grant will support planned capital improvements at the two public housing facilities. [.pdf of Baker Commons plan] [.pdf of Miller Manor plan] DDA board member John Mouat abstained from the vote, noting that the AAHC is a longtime client of his business, Mitchell & Mouat Architects.

The $600,000 amount will push the total contribution by the DDA to AAHC – from 2012 through 2016 – to at least $1.16 million. The April 2 board action comes in addition to a $300,000 grant made by the DDA board to AAHC for Baker Commons a year ago at its March 6, 2013 meeting. That grant was for driveway and sidewalk replacement and repair; installation of energy-efficient lighting; insulation and air sealing; window replacement; adding a second entrance; door replacement; upgrade of fixtures appliances, flooring and cabinetry; replacement of heating and cooling units; generator replacement, elevator replacement, upgrade of common area furniture, and installation of additional security cameras. As part of the DDA board’s April 2 action, it extended the term of the $300,000 grant, as the AAHC has not yet used the funds.

Prior to that, at its Oct. 3, 2012 meeting, the DDA board had granted $260,000 to the AAHC for the replacement of the roof on Baker Commons.

For many DDA board members, the $600,000 grant to AAHC this year was contingent on action by the city council  to grant a similar $600,000 request made by AAHC of the city of Ann Arbor. At its March 3, 2014 meeting, the council directed the city administrator to develop a budget amendment that would allocate $600,000 from the city’s affordable housing trust fund to help the AAHC pay for capital improvements.

Approval of that amendment by the city council would be contingent on the upcoming closing of the sale of city-owned property at Fifth & William in downtown Ann Arbor – the former Y lot. Net proceeds of the sale, at around $1.4 million, are to be deposited in the affordable housing trust fund. The closing on the property was scheduled for April 2, 2014.

This brief was filed from the DDA offices at 150 S. Fifth Ave., where the DDA board holds its meetings. A more detailed report of the meeting will follow: [link]

The $301,600 contract with MDOT would resurface the section of Huron Street from Main Street westward as Huron becomes Jackson Avenue on to I-94. The project will include a re-striping to reduce the number of lanes from four to three and to add bicycle lanes. An agreement with MDOT is required because the city must contribute 12.5% of the funding for the resurfacing. That accounts for $198,700. Additional funding is needed to pay for the resurfacing of the portion of South Maple Road, as part of the project. South Maple is a city-owned street. MDOT has agreed to include the South Maple resurfacing as part of the project, but it will be funded by the city of Ann Arbor for $102,900.

The council also approved the first in a series of resolutions that could lead to special assessment of property owners on parts of Stone School Road and Scio Church Road for constructing sidewalks. The resolutions direct the city administrator to prepare plans and specifications for the sidewalk improvement projects, determine an estimate of the cost, and make a recommendation on what portion of the cost should be special assessed.

The Stone School sidewalk would be constructed as part of a road reconstruction project.

The location of the potential Scio Church sidewalk is west of Seventh Street. The Scio Church resolution appropriates $35,000 for the design work. [For Chronicle coverage of a neighborhood meeting on the Scio Church sidewalk, see "Sidewalks: Build, Repair, Shovel"]

This brief was filed from the city council’s chambers on the second floor of city hall, located at 301 E. Huron. A more detailed report will follow.

According to a staff memo, until 2010 there were three steam-absorption chillers for the building. One was replaced in 2010, and the $7 million project aims to replace the other two with new electric chillers, pumps, piping, controls, and a new electrical substation. Staff estimates there will be a $600,000 annual energy savings after the replacement.

Regents also authorized a $1.2 million project to replace two hydraulic elevators and related equipment with two overhead traction elevators at the Modern Languages Building, 812 E. Washington. The project includes construction of a new rooftop penthouse mechanical room. The current elevators were installed in 1972 when the building was constructed, and according to staff they are increasingly difficult to maintain.

This brief was filed from the Michigan Union’s Anderson Room on the Ann Arbor campus, where regents held their September meeting.

Ann Arbor city councilmember Christopher Taylor, left, accepts a ballot from Tim Doyle, right, a park advisory commissioner. In the center is Sam Offen, who was re-elected as chair of PAC's budget committee. Taylor is a non-voting ex-officio member of PAC.

The report – including 16 recommendations for changes to improve the Burns Park center and senior services – is the latest in an effort that dates back to 2009, when the city considered closing the center. Suggestions include: (1) expanding programs to other locations, particularly to low-income senior housing; (2) partnering with other programs in the area, such as the popular travel program offered by Pittsfield Township’s senior center; and (3) possibly making the Burns Park facility more of a community center, and renaming it to reflect that broader mission.

Staff will be taking this report and incorporating elements of it into a strategic plan, which will be reviewed by PAC and city council before action is taken.

The meeting also included votes to recommend awarding contracts for renovations at Island Park, and support for a bioremediation pilot project at Southeast Area Park. Matt Naud, the city’s environmental coordinator, told commissioners that the test would determine the effectiveness of an approach to remove an existing vinyl chloride plume. The process would involve giving nutrients to naturally occurring microorganisms that can break down the contaminant. The plume resulted from vinyl chloride being released from the now-closed city landfill into groundwater on the south side of Ellsworth Road.

Margaret Parker, a member of the Ann Arbor public art commission (AAPAC), gave a presentation about two potential public art projects along the Huron River – at the Argo Dam bypass, and the Gallup Park canoe livery. Since the work would likely be on city-owned parkland, members of the parks staff and park advisory commission would be part of a task force for the project. Laura Rubin, executive director of the Huron River Watershed Council, also attended PAC’s meeting. She spoke in support of a more comprehensive vision for art as part of RiverUp!, an effort to improve a 104-mile stretch of the Huron River.

During public commentary, commissioners heard suggestions for several ways to improve non-motorized connections between South State and South Main streets.

The October meeting also included a review of FY 2011 and first-quarter FY 2012 financials for the parks system, and PAC’s annual election of officers. There were no deliberations, and current officers – including PAC chair Julie Grand – were re-elected unanimously.

Senior Center Report

Two consultants hired to analyze operations of the Ann Arbor senior center presented their report to the commission at PAC’s October meeting. Frank Bednarek of Hooker DeJong and Kevin Woods of Woods Consulting Group reviewed highlights of the report, and answered questions from commissioners. [.pdf. of Senior Center report] PAC had most recently received a staff update on the senior center at its June 24, 2011 meeting.

By way of background, the report stems from city budget talks in 2009, when city officials were looking to cut costs and said that closing the senior center would save about $150,000 annually in the city’s general fund. In response to objections from local residents, the city formed a task force to develop strategies to keep the center open.

In November 2010, the city council approved a $34,750 contract for the consulting firm Hooker DeJong to develop a long-term strategic plan for the senior center. The Ann Arbor Area Community Foundation funded $16,949 of that amount, with the remainder coming from the city’s general fund.

Hooker DeJong’s 60-page report makes 16 recommendations regarding the senior center. They include: (1) expanding senior programming to other locations, including North Community Center and Bryant Community Center; (2) exploring partnerships with senior centers outside Ann Arbor, such as Pittsfield Township’s senior center, which offers a popular travel program; (3) using more volunteers to expand programs and activities; (4) reaching out to affordable housing developments to do programming for low-income seniors; (5) marketing to seniors over 70; (6) possibly eliminating the word “senior” from marketing materials; and (7) making future development program-based rather than facility-based.

The report also recommends that the current senior center at Burns Park be used for non-senior programming as well, and that the center be renamed to reflect that broader use – possibly as the Burns Park Community Center.

The consultants said that one thing they heard loud and clear in their research is that people who are on the younger edge of the Baby Boomer generation don’t see themselves as seniors. People who are 55-64 look at themselves as active older adults, so the challenge is to design strategies that speak to that group, Woods said. He also noted that people in a higher-income bracket have many more options, and might not be as likely to seek out activities at the senior center. That’s why the consultants see an opportunity to reach out to lower-income seniors, who might benefit from programming for seniors.

The report recommends continuing the same kinds of programming at the Burns Park location, but if the city wants to expand, staff should look at other locations, Bednarek said. The report includes an analysis of the building where the center is currently located, and makes several recommendations for reconfiguring the space and making renovations.

Woods noted that demographics indicate higher concentrations of seniors in the city’s north and east sides. Those are possible places to add senior services, if expansion occurs. There are also about 800 units of affordable housing in the city, Woods reported, targeted to seniors below the $40,000 income level. Offering services at those locations would be another way to expand.

Woods said the message should be that Ann Arbor wants to provide recreational activities for all citizens to be physically active to the highest extent possible for their entire lives. Gwen Nystuen quipped: “And mentally!”

Senior Center Report: Commissioner Discussion

Nystuen asked if the consultants had come up with any options for new names for the center. Not really, Woods said, adding that it would need to be something other than “senior,” to broaden its appeal. Christopher Taylor asked if the resistance to being identified as a senior lessens over time – that is, will these people change their view as they age? Woods said it might be that people start to think of themselves as seniors when they reach ages 75-80.

Bednarek noted that this isn’t an issue unique to Ann Arbor. Boomers aren’t using senior services in the same way that people have in the past. He also noted that the consultants didn’t find a silver bullet that will suddenly double participation in the senior center’s programs. Nor did they find anything being done that’s particularly awful, he said. The center has solid programming that appeals to a certain demographic – bridge, for example, is especially strong.

Frank Bednarek of Hooker DeJong, and Pamela Simmons, facility supervisor for the Ann Arbor senior center.

Tim Berla asked if there are any activities unavailable elsewhere, that the senior center could offer to draw people in. Though the goal is to make sure the center breaks even, it’s not a business, he said. Part of the point is to offer services that people can’t get anywhere else. Woods said there’s nothing compelling that would cause people to rush in. People want diverse options – birding, hiking, bridge – but most activities are already available in the city.

Bednarek identified the top three things that bring people to the senior center now: (1) the need for socialization, especially for people over 70; (2) bridge; and (3) meals. There’s a strong core group of people – about 350 seniors – who use the center now and who really want those services. It costs the city about $84,000 to do that, he noted.

Sam Offen asked if the consultants had talked with other agencies that provide senior services. Was there much conversation about having more interaction between these entities? Woods said the Turner Resource Center, which is operated by the University of Michigan Health System, is very interested, as is the Chelsea Senior Center and others. They don’t see each other as competition, he said.

Offen asked what kind of services are offered at market rate senior housing. You’d be more likely to find amenities like fitness centers and programmed activities, Woods replied. Bednarek added that for affordable housing sites, there might be arrangements for social services, but not recreational offerings.

Karen Levin said it seemed like a travel program would be a big draw, but the report didn’t recommend that. Bednarek noted that the city had previously solicited proposals for someone to operate a travel program, but there were no responses. The consultants talked to a reputable travel agent, Bednarek said, and to see how the agent reacted to the possibility of starting a travel program here.

Bednarek said the agent felt it would take three to five years to build a program from scratch. That led the consultants to look at other travel programs for seniors in this area, including the one offered by the Pittsfield Township Senior Center. The report recommends possibly negotiating to provide referrals to other travel programs, perhaps in exchange for a fee paid to the city for referrals.

Levin felt that even if Ann Arbor started a small travel program, it could still be a draw. Woods pointed out that if so, the city might want to consider a higher-end offering, because the mid-level market was competitive. The city would also be competing against educational travel programs offered by the University of Michigan, he said.

Taylor observed that it seemed the most fertile ground was for the over-70 resident – is that where the consultants suggest focusing the city’s services for seniors? Yes, Woods said, but don’t ignore the younger ages either. It’s important to offer multi-generational programs – just don’t label them as being for “seniors.”

But why not just walk away from services for the 55-70 age group? Taylor asked. Playing devil’s advocate, he wondered why the city should compete with existing alternatives, if the city can provide more focused options for people over 70. Bednarek said that in practice, the city is already doing that – they’re providing non-generational activities like golf and swimming that attract people in the 55-70 age group.

Julie Grand said that if they focus on activities for people over 70, that frees up space in the senior center for other purposes, which might serve as an entree to the center, and get younger people into the building. She really liked the idea of using it as a community center – but she noted that perhaps people over 70 won’t be comfortable with 4-year-olds running around.

Tim Doyle said there’s an opportunity for the center to be a conduit of information regarding broader city offerings. He lives four blocks from the center and he’s a senior – though he said he doesn’t admit to it. Until PAC’s discussion, he didn’t know what went on at the center. If forms and sign-ups are available there for any city program, then that could draw people of all ages to the center, he said. When they’re older, they might remember that it offers services for seniors, too.

Grand also noted that the city is fortunate in that there are a lot of college students here. UM students in social work, kinesiology and health care might be interested in working with the senior center in some way, she said. They could be a valuable resource, especially in delivering services in a low-cost way to low-income seniors.

During the first public commentary of PAC’s meeting – prior to the senior center presentation – Margaret Leslie, a member of the senior center task force, had asked whether the task force’s work was now done. She wondered who would be responsible for carrying out the report’s recommendations, and when those recommendations would be implemented.

Toward the end of PAC’s discussion later in the meeting, Colin Smith, manager of city parks and recreation, responded to her questions. This is the start toward a strategic plan, he said – the report is not the plan itself. It gives the city tools and information for developing a plan. The staff will review this report, he said, and return to PAC this winter with a plan on implementing some of these recommendations. A lot of the recommendations will likely be acted on, he said, but probably not all of them.

FY 2011, First-Quarter FY 2012 Financial Update

Sam Offen, chair of PAC’s budget committee, reported that the first-quarter report for parks  and recreation looks good. He noted that PAC had reviewed preliminary year-end budget numbers for FY 2011, which ended June 30, at its July 2011 meeting. The financial report included final FY 2011 results, as well as a report on the three-month period of FY 2012 from July 1 through Sept. 30 [.pdf of first-quarter financial statement]

Year to date for FY 2012, revenues of $787,837 are 33% ahead of budget, Offen noted. Expenses of $965,047 are 27% over budget, but offset by the higher-than-budgeted revenues, he said. The full-year FY 2012 budget projects a $1.2 million contribution from the city’s general fund.

Colin Smith, manager of parks & recreation, noted that the FY 2011 budget had called for a $1.227 million contribution to parks from the city’s general fund. The year ended with a $1.219 million draw from the general fund. Getting that close to the projected budget, he said, required coordination and management of many individual budgets within the parks program. He credited his staff for making that happen, noting that while revenues were about $100,000 less than budgeted, expenses had been kept down by about an equal amount.

Park commissioners Gwen Nystuen and John Lawter.

John Lawter asked whether the parks system gets to keep excess revenues, if revenues are higher than projected. Smith noted that for areas that operate as enterprise funds – like the public market or golf courses – then any excess goes to the fund balances for those units. But for parks in general, because they receive general fund support, any excess at year’s end would be returned to the general fund. Gwen Nystuen clarified with Smith that revenues from fees are also returned to the general fund.

Lawter said that in that case, if a unit sees an excess, they’re almost encouraged to spend it – the money can’t be carried over to the next year. That might be true if each parks unit operated in isolation, Smith replied. But managers across the entire parks system are encouraged to work collectively, and they realize they’re all in this together, he said. If one facility does better than expected, that might offset a different facility that had unexpected expenses or less revenue than expected. That way, in aggregate, the overall parks budget hits its target. Last year, for example, the pools didn’t do as well, but the canoe liveries did better than expected, Smith said. This year, the opposite was true, because of construction at Argo – the pools bailed out the liveries a bit, he said.

Offen noted that parks gets $1.2 million from the general fund, so there’s a ways to go before they see any excess as a whole.

Smith reviewed results from several individual units, including the senior center, Mack Pool and the golf course enterprise fund. [PAC had received detailed updates on the senior center and Mack Pool at its June 2011 meeting.]

For Huron Hills, the net cost for FY 2011 was expected to be $259,000, but the course ended up with a net cost of $230,000 – a little better than budgeted, Smith noted. Leslie had budgeted for a net cost of $223,000 but ended up a bit worse, he said, at $243,000. Originally the staff had projected the two courses would lose a total of about $494,000 – and that’s roughly where they ended up, he said.

However, at the end of 2011 the staff had revised their estimate for the projected loss, setting it at $390,000, Smith said. For the golf courses, the first half of the season – July through December – is used to project performance in the second half, January through June. Historically, the courses recognize just less than half of the total year revenues during the first half of the year. Based on that historical trend and the $632,000 in revenues from July to December of FY 2011, staff revised its budget estimate and projected that total revenues for FY 2011 would reach $1.265 million.

However, the spring was an historically poor one, Smith said, with more rainy days than usual. The result was total FY 2011 revenues of $1.15 million – or about $100,000 less than budgeted. For all of April and May, Smith noted, there were only two periods that didn’t see consecutive days of rain. “That’s kind of what we were up against,” he said.

David Barrett asked why Huron Hills did better than Leslie Park for the year. [Huron Hills posted a net loss of $230,051 for FY 2011, compared to a net loss of $243,112 at Leslie.] At Huron Hills, Smith said, golf cart use was higher than projected.

Barrett asked about fees for use of the city’s Fuller Park soccer fields, which have been recently renovated. Smith said it was wrapped into the overall category of park use fees. Use fees totaled $291,084 for FY 2011, up slightly from $289,859 in FY 2010. Tim Berla noted that when fees were set for use of the soccer fields, they were set at a rate that was keyed to anticipated costs of operating the fields. He requested a report on that, to see if the fees are set at a financially sustainable rate.

Smith said they could make a report at an upcoming meeting. He explained that the use fees are a little behind budget so far this year, mainly because of refunds that were made due to rainouts.

In response to a question from Offen, Smith said that he and Matt Warba, field operations supervisor, would be coming to PAC in the next few months with some suggestions for spending part of an accumulated fund balance from the park maintenance and capital improvements millage – about $1.5 million, out of a total of roughly $25 million in millage proceeds over the past five years.

Parks Capital Projects

Amy Kuras, the city’s park planner, gave a quarterly update of capital projects that are completed or in the works. Later in the meeting, commissioners voted to recommend awarding contracts for two renovation projects at Island Park.

Parks Capital Projects: Quarterly Update

Kuras gave brief descriptions of work being done in more than a dozen of the city’s parks, including Beckley Park, Buhr Park, Hunt Park, Riverside Park, and several others. [.pdf of full capital project update]

The city will be notified in November if it received the state grant for improvements at the Gallup Park boat launch and canoe livery, Kuras said. A conceptual design is finished for livery renovations, an entry path and the dock area. The scope of the improvements will depend in part on whether those grant funds are awarded. [For details, see Chronicle coverage: "PAC Supports Grants for Skatepark, Gallup"] Kuras said a state grant was awarded for preliminary engineering of a boat launch at Gallup, which also needs renovation. The city will apply for a construction grant following completion of that engineering work.

A public meeting was held to discuss renovations at Riverside Park, Kuras said. [See Chronicle coverage: "Work Planned at Ann Arbor's Riverside Park"] The work there will be coordinated with repair to Canal Street by the city’s public services unit.

Problems with West Park’s underground storm management system are still being addressed. Additional work will be done during the next construction season. [As part of the city's recent renovation of West Park, underground swirl concentrators were installed – four each near the north and south entrances of the park off Seventh Street. It was later discovered that all were in some state of failure or were suspected to be on the verge of failing. This summer, a city staff memo indicated that the city expects to recover any additional costs due to the failures – either from the manufacturer or the design firm.]

Parks Capital Projects: Island Park Renovations

On the agenda for PAC’s October meeting were two resolutions related to Island Park, located next to the Huron River – north of Fuller Road and east of Maiden Lane.

PAC was asked to recommend approval of a $92,586 contract with Legacy Custom Builders Inc. for repair of the Island Park Greek Revival shelter. The price includes an $84,169 bid and a $8,417 (10%) construction contingency.

According to a staff memo, the shelter was built in 1914 and has been renovated several times, most recently in 1995. Weather, insect and animal damage has caused the structure to deteriorate. Four contractors made bids on the project, and Legacy Custom Builders proposed the lowest bid. The firm is based in Northville, Mich.

In a separate resolution, the commission was asked to approve a $71,500 contract with Saladino Construction Company Inc. to restore the Island Park bridge and the concrete portions of the Greek Revival shelter. The price includes a $65,000 bid and $6,500 (10%) construction contingency.

The bridge was built in 1916, two years after the shelter. The work includes the repair and sealing of cracks, repair of spalling concrete, and repainting the bridge. Structural concrete support would be added to the shelter, which has sunk slightly in one corner, causing cracks in the concrete walls. According to a staff memo, the city’s Historic District Commission has been consulted on the renovations, though the park is not in an historic district.

Sam Offen said he thought it was interesting that for both projects, four companies submitted bids – and three of those four bid on both projects. But in each case, it was the company that only bid on one project that got the contract, he noted.

Park planner Amy Kuras said that the three companies bidding on both projects are general contractors. But the bids were awarded to companies with specific expertise in the necessary work, she said – Legacy is a builder, and Saladino does concrete work. She said the staff talked about whether to package the work into one bid, but ultimately decided two separate bids would possibly result in a better price.

Funding for these projects is already allocated from the approved FY 2012 Park Maintenance and Capital Improvements Millage proceeds.

Outcome: On separate votes, commissioners unanimously approved both resolutions recommending the contracts for work at Island Park. Both contracts require approval by the city council.

Bioremediation at Southeast Area Park

Matt Naud, the city’s environmental coordinator, solicited a recommendation from PAC regarding whether to pursue a bioremediation pilot test in a section of Southeast Area Park, a 26.5-acre city park at Ellsworth and Platt roads. The test would determine if technology to remove an existing vinyl chloride plume is effective. The plume resulted from vinyl chloride being released from the now-closed city landfill into groundwater on the south side of Ellsworth Road.

Aerial view of a section of Southeast Area Park, showing the location of the city's bioremediation project. (Links to larger image.)

Naud told commissioners that the city has been managing “legacy problems” at the former landfill since it closed in 1982. In the 1990s a slurry wall was built to stop potential contaminants from polluting clean groundwater. The wall did not extend across the landfill’s northern side. Instead, extraction wells are used there to pull the groundwater and contaminants back to the extraction wells, where the water is discharged to the sanitary sewer for treatment.

The city isn’t legally required to do more than it’s already doing, Naud said, but they’d like to try an additional approach. The pilot project would test a different type of remedial process called bioremediation, where naturally occurring microorganisms are given food and nutrients to encourage the metabolic breakdown of the contaminant. [.pdf of bioremediation proposal] Consultants Patti McCall and Mike Kovacich, who’ll be working on the project, were on hand to answer questions from commissioners.

According to Naud, the park would be affected for three days. The park would remain open, but a portion of it would be fenced off while testing is conducted.

Naud assured commissioners that no park users would be exposed to hazardous materials – the plume is at least 25 feet underground. Soybean oil would be injected in eight locations. They’d likely use a fire hose to push down and distribute the oil for the bacteria, then wait 4-5 weeks and repeat the process. They’d monitor the plume to see if there’s any improvement.

Naud said he’d talked through possible worst-case scenarios with Colin Smith, the city’s parks and rec manager. The worst outcome could be if a hose broke and soybean oil spurted out, he said. Even so, he wanted to make sure the public was aware of what they’re doing, and that the process is open.

Bioremediation: Commissioner Discussion

David Barrett indicated that it seemed the only risk was for public relations – when he hears “bioremediation,” he imagines people in white hazmat suits. Naud said the staff thought about that, because it’s not something the city is required to do. But this community usually tries to do more than it’s required to do, Naud said. If they were pumping contaminated groundwater out of the ground, or doing it near kids, that would be different, he said. But since this is trying to augment a natural process, he thought it was worth at least proposing it.

Naud said the city staff is reaching out to nearby housing cooperatives – residents there are primary users of the park. Sam Offen asked if there was any contamination leading underneath the housing units. No, Naud replied. All of the contamination is south of I-94. As a practical matter, there was more concern about methane gas coming off the site. A collection system is in place to handle that, which is also used to generate electricity. The city has done sampling of some basements in the housing cooperatives and never detected methane, Naud said.

There is some 1,4 dioxane in groundwater underneath one of the cooperatives related to contamination from Pall/Gelman, Naud added, but there are no private wells there – the housing units are hooked up to the city water system. The 1,4 dioxane is not above regulated standards, he said. That’s why they’re focusing on the vinyl chloride plume.

Doug Chapman pointed out that some people might think the city is introducing new bacteria, but they’re really just trying to increase the population of existing bacteria so that more bacteria will break down the vinyl chloride. Kovacich explained that the microorganisms breathe in vinyl chloride, but need to feed on a hydrogen source – in this case, soybean oil.

Julie Grand asked about the tripping hazard of pipes that will be used at the site. The one-inch pipes will be flush-mounted, Naud said, similar to those that are in other locations in town, like the Armen Cleaners site.

Grand asked if this process could be used to clean up other contaminated sites in the city, noting that several sections of a proposed greenway need remediation. It’s typically an expensive process, she noted. Naud said it depends on what kind of contamination is present. He offered to hold a working session for commissioners with more information on that, if they wanted.

Barrett asked whether Naud would let PAC know about the results of this bioremediation effort. “We always tell you good news,” Naud joked. The consultants already test samples from the former landfill every quarter. This will be added to their testing, he said, and those results can be shared.

Smith then read a resolution supporting the project. It directed city staff to inform and educate neighbors in the area about the project before starting, and asked staff to provide updates to PAC on its progress. The resolution states:

WHEREAS, A vinyl chloride plume exists underneath Southeast Area Park;
WHEREAS, A bioremediation pilot is being proposed to treat the vinyl chloride plume;
WHEREAS, Funding is available from the Solid Waste Fund;
RESOLVED, That staff and consultants provide educational outreach to the Southeast Area Park neighborhood prior to implementation of the bioremediation;
RESOLVED, That staff proceed with this bioremediation pilot, and;
RESOLVED, That staff report back to the Park Advisory Commission after regular monitoring is able to determine the efficiency of the bioremediation pilot.

Outcome: Commissioners voted unanimously to move forward with the bioremediation project.

River Artwalk Proposal

Margaret Parker, a member of the Ann Arbor public art commission (AAPAC), gave a presentation about a potential public art project along the Huron River. The art commission’s annual plan for FY 2012 calls for possibly adding public art at two locations on the river. Since the work would likely be on city-owned parkland, members of the parks staff and park advisory commission would be part of a task force for the project.

As one of 10 priorities for the year, Parker told park commissioners that the annual public art plan identified two possible locations for public art along the river: At the Gallup Park canoe livery, and the Argo Dam headrace. Both are attractive locations because they are centrally located and accessible to the public. The plan calls for evaluating this possible project – nothing more, she said.

The first step, Parker said, was to meet with members of the city’s parks staff: Colin Smith, head of parks and recreation; park planner Amy Kuras; and Cheryl Saam, head of the city’s canoe liveries. The staff had three recommendations for possible public art at Gallup Park:

• A memorial wall that combines art with donor names on the north side of the livery building – this was the staff’s preference, Parker said.
• Artwork on the far shore, across the river from the livery.
• Decorative elements on a walkway that will be built between the livery and new docks, as part of a renovation project at the park.

For the second site – at the Argo headrace, near Argo Pond – parks staff cited four possibilities for public art locations:

• At the end of the headrace near Broadway, where a public area with an amphitheater is planned.
• On top of the embankment: A way-finding system could feature the area’s history – its use as a Native American path, for example, or the location of mills.
• Along the river: A way-finding system could mark a water trail.
• At the area connecting Argo Dam with the headrace.

Maintenance and graffiti were mentioned by the parks staff as issues that need to be considered, Parker said.

Parker took these ideas to the public art commissioners, and after discussing the ideas at their August meeting, they were supportive, she said. So the next step was to meet with PAC and get their input. [.pdf of memo to PAC regarding possible Huron River art projects]

These two art projects could connect to a broader vision for art along Huron River, Parker said, as part of RiverUp!, an effort to improve a 104-mile stretch of the Huron River, starting from the north at Milford through Ann Arbor and Ypsilanti, and downstream to Flat Rock. [See Chronicle coverage: "RiverUp! Focuses on Revitalizing Huron River"] Public art at Gallup and Argo could be considered as pilot projects for a larger river artwalk, she said.

The Huron River Watershed Council, which is taking the lead in organizing RiverUp!, could also manage the larger river art project, Parker said. Laura Rubin, the council’s executive director, was on hand to voice her support for the art project. Several groups are working together on a river renaissance, Rubin said, trying to orient communities toward the river. She strongly supports the public art proposal, and noted that the University of Michigan – which also owns property along the river – is interested in this too. With a diverse partnership involved, Rubin said, they can create something beautiful.

River Artwalk: Commissioner Discussion

Tim Berla said it would be cool to have an open-ended call for proposals, not tied to specific sites and with the understanding that funding hasn’t yet been identified. The art commission could vet the proposals, with input from city staff and PAC. He also suggested that they think about creating something that’s meant to be covered with graffiti. “I’m just saying take advantage of our community,” he said.

Sam Offen asked whether the projects were meant to be outside, or perhaps would they be located inside – like in the livery building, for example. Parker replied that the process is generally to set up a task force, which would then analyze each site in more detail to determine where the artwork might go. Exterior pieces are more accessible, but an interior work might be possible, she said.

Offen said he likes the idea of an artwalk along the river. He asked how it would be funded. Colin Smith, manager of the city’s parks and recreation unit, explained how the Percent for Art program works. A percent of the budget for each city capital project – up to $250,000 per project’s budget – goes toward public art. That includes capital projects in the parks system. Money earmarked for the Percent for Art program must be used for public art that somehow relates to the original funding source. Offen observed that capital projects for parks in general contribute funding to public art – whether the city does this particular art project or not.

Gwen Nystuen described the artwalk as an exciting project – she especially liked the idea of public art for way-finding along the river.

Smith said the next steps would be to set up a task force, and brainstorm all the things they need to consider. It will also be important to get feedback from the public about what they’d like to see along the river. He reminded commissioners of the art installation by the visiting artist at the University of Michigan. [In 2009-10, William Dennisuk, a visiting artist at UM's Witt Residency program, proposed an art installation of large wire vase-like sculptures in and near the Huron River, as a way to conceptually bridge the town and campus communities. See Chronicle coverage: "Sculptor Tries to Weld City, University."]

Smith said he personally liked Dennisuk’s sculptures, but he recalled that there was a great deal of opposition to the project, and even some anger. So a full discussion about what might go into an area that’s very special to a lot of people is important, he said.

PAC Officer Elections

Julie Grand, who has served as PAC chair since April 2010, said she hoped the gods of the bylaws would forgive the commission for not holding their annual elections in September. [PAC's September meeting was cancelled.] She noted that terms for several commissioners will be expiring in the coming year, so that should be a factor in their nominations.

PAC chair Julie Grand and Mike Anglin, a city councilmember and ex-officio member of PAC.

Gwen Nystuen nominated Grand for another one-year term as chair, and John Lawter for another term as vice chair. Tim Doyle nominated Sam Offen for another term as chair of PAC’s budget committee. There were no competing nominations for any of these positions.

Colin Smith, manager of parks and recreation, noted that Offen’s term ends on June 15, 2012. Doyle offered to serve as chair-in-training for the budget committee. Other PAC members with terms expiring in 2012 include Nystuen in May, David Barrett in August, and Lawter in December. They are all term-limited and can’t be reappointed.

“Change is good,” Offen said. Grand acknowledged that they’d be welcoming some new energy to PAC, but added that there will clearly be losses.

PAC bylaws require that votes be taken by secret ballot, so commissioners wrote their choices on paper and passed them to Smith, who tallied the votes. ”OK,” he said wryly, after counting the ballots. “I have some not especially surprising results.” Grand, Lawter and Offen were re-elected unanimously.

Misc. Communications, Public Commentary

During every meeting there are typically updates from staff and commissioners, as well as two opportunities for public commentary.

Misc. Comm/Comm: Non-Motorized Paths

Eric Boyd spoke during time set aside for public commentary at the beginning of PAC’s October meeting. His comments focused on the need for more non-motorized connectivity between west and south central Ann Arbor – essentially the area between South Main to South State streets. He noted that on South State, from the corner of East Hoover to Eisenhower, is a two-mile stretch. That’s out of the way for someone trying to go from south central Ann Arbor to southwest Ann Arbor – for example, if you’d like to go from the Produce Station on South State, to Busch’s grocery on South Main, after the East Stadium bridge is torn down.

Currently, there are only three ways to go from South State to South Main, he said:

1. Via East Stadium – but that route won’t be available during reconstruction of the East Stadium bridge, which will begin later this year. It also requires a roundabout path through Stimson and South Industrial.
2. Via the University of Michigan field hockey field to Kipke – but the university has restricted use of that route to the hours of 7:30 a.m. to 5 p.m.
3. Via a short gravel path between UM’s varsity tennis facilities and Lynden Glen Drive. That’s a relatively unknown route, Boyd noted, and would be a mess in the winter.

There are several options the city could pursue, Boyd said, and some of those could fall under the aegis of the park advisory commission:

• Create a section of the Ann Arbor Greenway linking East Hoover with the intersection of South State and Stimson, with a spur connecting to Kipke/Stadium Way. This would enable passage from Kipke to Stimson without going along the university field hockey field.
• Work with the UM golf course to create a publicly accessible non-motorized path linking South State to South Main along the southern border of the golf course.
• Work with the UM varsity tennis facility to create a non-motorized connection to Golfview.
• Pave the short gravel section between the university soccer facilities and Lynden Glen Drive. Add signage for non-motorized transportation on South State and South Main showing the path.
• Work with the university to reopen the connection between South State and Kipke for all hours – or at least until 8 p.m., when most commuters have gone home.

Tim Berla thanked Boyd, and requested that he email the suggestions to PAC.

Misc. Comm/Comm: Parks and Rec Manager Update

Colin Smith, parks and recreation manager, told commissioners that work on the Argo Dam bypass is well underway. It’s pretty exciting to see the outline of the series of pools being built, he said. [PAC had recommended approval of the project at its October 2010 meeting. The $1,168 million project is being designed by Gary Lacy of Boulder, Colo., and built by TSP Environmental, a Livonia firm. The project includes removing the canoe portage, and replacing it with a series of “drop pools” so that no portage is required.] Smith said Lacy thinks they’ll be able to run water through the pools this year, to see how it will work.

Colin Smith, manager of Ann Arbor parks and recreation.

Smith said the staff has been working on a plan for improvements to the city’s baseball and softball fields. Some areas are in real need, he said – it’s analogous to the former conditions of the soccer fields, which underwent a major upgrade over the past few years. [PAC member David Barrett, who took the lead on assessing the conditions of the fields, presented a report at PAC's September 2010 meeting. There are 28 fields at Ann Arbor public schools, and 26 owned by the city. .pdf file of Barrett's ballpark report] An item regarding the baseball and softball fields will likely be on PAC’s November meeting agenda, Smith said.

Smith also mentioned that he’d driven down Fuller Road and utility work is happening along both sides – DTE was replacing a gas main in an easement granted by the city on the north side of Fuller Road, and sanitary sewer pipes are being replaced on the south side.

Tim Berla asked whether any of this work is related to the proposed Fuller Road Station, which hasn’t yet been approved by city council. Smith replied that the work would need to be done anyway, but that it’s likely there could be a tie-in to Fuller Road Station at some point. Berla observed that the city council hasn’t take a vote on the project – a partnership with the University of Michigan to build a large parking structure, bus depot and possible train station on city-owned property that’s designated as parkland. He noted that it’s possible the project won’t be approved.

Smith said his understanding is that an operating agreement is being developed between the city and UM. He acknowledged PAC’s previous request to see such an agreement prior to it being presented at city council. Staff is aware of that request, he said, but there’s no update at this point. Gwen Nystuen asked whether Smith is part of the negotiations for the operating agreement. No, he said – nor has he seen a draft of the document. As far as he knew, it hasn’t been added to the agenda for any upcoming council meetings at this point.

Mike Anglin, one of two councilmembers who serve as ex-officio members of PAC, said the commission could request an update from Eli Cooper, the city’s transportation program manager, or any of the managers involved in the Fuller Road Station project. [Most recently, Cooper briefed PAC on the project at its May 2011 meeting.]

Berla noted that sometimes people ask him about Fuller Road Station, and he’d like to know the truth so that he can respond to them. He wanted to confirm that the council wasn’t sneaking into it and that just because utility work is taking place, that doesn’t mean Fuller Road Station is “a go.”

Present: David Barrett, Tim Berla, Doug Chapman, Tim Doyle, Julie Grand, Karen Levin, Sam Offen, Gwen Nystuen, John Lawter, councilmember Mike Anglin (ex-officio), councilmember Christopher Taylor (ex-officio). Also Colin Smith, city parks manager.

Next meeting: PAC’s meeting on Tuesday, Nov. 15, 2011 begins at 4 p.m. in the city hall second-floor council chambers, 301 E. Huron St., Ann Arbor. [confirm date]

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According to a staff memo, the shelter was built in 1914 and has been renovated several times, most recently in 1995. Weather, insect and animal damage has caused the structure to deteriorate. Four contractors made bids on the project, and Legacy Custom Builders proposed the lowest bid. The firm is based in Northville, Mich.

In a separate resolution, the commission recommended approval of a $71,500 contract with Saladino Construction Company Inc. to restore the Island Park bridge and the concrete portions of the Greek Revival shelter. The price includes a $65,000 bid and $6,500 (10%) construction contingency.

The bridge was built in 1916, two years after the shelter. The work includes the repair and sealing of cracks, repair of spalling concrete, and repainting the bridge. Structural concrete support would be added to the shelter, which has sunk slightly in one corner, causing cracks in the concrete walls. According to a staff memo, the city’s Historic District Commission has been consulted on the renovations, though the park is not in an historic district.

Funding for these projects is already allocated from the approved FY 2012 Park Maintenance and Capital Improvements Millage proceeds. Both contracts require approval by the city council.

This brief was filed from the city council chambers at city hall, located at 301 E. Huron St. A more detailed report will follow.

The $2.4 million cost of the bus storage facility project will be financed using a combination of roughly $1 million in ARRA (federal stimulus) funds and $1.4 million in existing federal formula funds. The $980,500 bus hoist replacement will be financed by a combination of existing grants and from federal formula funds. The blanket concrete contract lasts for five years for up to $250,000 worth of concrete work for the contract period. The detention pond work will cost $98,500 and will be financed through a combination of Federal Transit Authority funds and federal formula funds.

This brief was filed shortly after the AATA board meeting, which took place at the AATA headquarters at 2700 South Industrial Highway: [link]

View of construction site (Ed. note: corrected from "sight") for proposed underground parking garage looking east to west. Herb David Guitar Studios and Jerusalem Garden are located in the upper right corner of the block. (Image links to Microsoft's Bing Maps for full interactive display.)

As The Chronicle previously reported, at last week’s city council meeting, Ann Arbor CFO Tom Crawford announced that bonds for the 677-space South Fifth Avenue underground parking garage had been sold on Aug. 5.

And on Friday, Aug. 7, the Downtown Development Authority’s capital improvements committee conducted interviews with four candidate companies for the job of construction manager of the garage.

Then, by Wednesday morning of this week, references and financials for the Christman Company had checked out to the satisfaction of the DDA staff and Carl Walker – the design firm that’s been hired for the project. DDA executive director Susan Pollay is working out a time for a special meeting of the whole board to award the job to Christman.

But the day before, on Aug. 11, a lawsuit in connection with the parking garage project – which had previously been threatened by the Great Lakes Environmental Law Center – was actually filed. The complaint alleges violations of the Michigan Environmental Protection Act, the Michigan Open Meetings Act, as well as nuisance and trespass violations.  Herb David Guitar Studio and Jerusalem Garden restaurant are plaintiffs in the suit, along with GLELC.

Bonds

On Wednesday morning, after arriving at a consensus that they wanted the Christman Company as their construction manager for pre-construction services, several DDA capital improvement committee members wanted to know: “When do we get the money?” That is, when does the bond money arrive so that they can pay Christman?

The money is coming from municipal bonds. And it’s supposed to arrive next week  (on Aug. 19), Tom Crawford told The Chronicle in a phone conversation. It’ll be a wire transfer for roughly $49 million. Here’s a brief historical sketch of the bonds.

The municipal bonds for the proposed underground parking garage were first authorized by Ann Arbor’s city council at its Feb. 17, 2009 meeting – that’s a key date with respect to the lawsuit that’s been filed. Then at its July 20 meeting, the council authorized a change from tax-free bonds to taxable municipal bonds, which have higher interest rates, thus costing the city more in debt service. That’s more than offset, however, by money from the federal stimulus package through its Build America Bonds program.

In his presentation to the DDA board at its July 3 meeting, Crawford said that switching to the BABs would actually save around a $1.5 million over the life of the bond.

At the council’s most recent meeting, on Aug. 6, Mike Anglin (Ward 5) queried Crawford about the city’s bond rating in light of a $5 million payment out of cash reserves, which was needed to finance the early-out police retirements. Crawford told Anglin that the cash reserves were still within the policy range of 8-12% of expenditures, and that the city’s bond rating  had been confirmed the previous day at Aa2 when the bonds for the parking garage had been sold.

So the bond sale date was Aug. 5. How exactly are bonds sold? There’s a bidding process. In this case the “sale date” corresponds to the deadline for submitting sealed bids. From the city’s Preliminary Official Statement for the issuance of the bonds:

Sealed bids for the purchase of the issue of  bonds described below of the aggregate par value of $49,420,000 to be issued by the  City of Ann Arbor, Washtenaw County, Michigan (“City”), will be received by the undersigned at the office of the Treasurer, at 100 N. Fifth Ave. Ann Arbor, Michigan
48107, until 11:30 o’clock, A.M., Eastern Daylight Time, on Wednesday, the 5th day of  August, 2009, at which time and place such bids will be publicly opened and read.

Delivery of the bonds is scheduled for Aug. 19. After delivery, the city would receive a wire transfer of around $49 million, which would be invested in low-risk financial instruments – like U.S. Treasury bonds – in a manner that would allow those investments to be cashed out in the course of the project. That way, when the DDA requests funds to meet its construction payment obligations, those funds will be available.

When we spoke with Crawford, we asked him explicitly not to factor in any possible implications of the lawsuit on what might happen to the bonds – from Crawford we wanted to know how things worked in a garden-variety case. In a usual course of events, after the “sale,” Crawford told The Chronicle, “We’re in, we’re done.”

However, based on the Preliminary Official Statement, it appears that delivery of the bonds might founder on the need to attest that there is no pending litigation:

DELIVERY OF BONDS: The City will furnish bonds ready for execution at its expense. Bonds will be delivered at the principal office of the Bond Registrar, or any other place mutually agreeable, at the expense of the City. The usual closing documents, including a certificate that no litigation is pending affecting the issuance of the bonds [emphasis added], will be delivered at the time of delivery of the bonds. If the bonds are not tendered for delivery by twelve o’clock noon, Eastern Daylight Time, on the 45th day following the date of sale, or the first business day thereafter if said 45th day is not a business day, the successful bidder may on that day, or any time thereafter until delivery of the bonds, withdraw its proposal by serving written notice of cancellation on the undersigned, in which event the City shall promptly return the good faith deposit.

The lawsuit filed by GLELC alleges Open Meeting Act violations at the Feb. 17 meeting when the bonds were issued.

If the lawsuit delays bond delivery, that would delay construction start. And based on the construction manager interviews,  delays in the construction start could potentially wreck the timing of crucial phases of the project.

Construction Interviews

The DDA board’s capital improvements committee interviewed four candidate construction companies from around noon to 7 p.m. last Friday in a meeting open to the public.

We’re Going to Dig a Big Hole

At least two companies  for the construction manager job had taken to heart an apparent message from the DDA about timing: Get Fifth Avenue back open in time for the Art Fairs.

Timing of closure and opening of Fifth Avenue was a key part of presentations from Barton Malow and Christman Company – we missed Spence Brothers, and Granger Construction Company’s pitches. Those four had been winnowed down from 14 companies that submitted bids.

Barton Malow described digging the big hole from west to east. Christman had an idea for digging from east to west.  They both talked about the project in terms that pretty much anybody could understand. Barton Malow, whose construction trailers can currently be seen parked on the north end of Michigan Stadium in connection with the university project, described the process like this: “We’re going to dig a hole – a big hole. And we’re going to fill it with concrete – a lot of concrete.” For their part, Christman described starting the excavation then “chasing ourselves around the hole with our concrete.”

Interviews for the construction manager job by the DDA's capital improvements committee. From left, Roger Hewitt (DDA), Michael Ortlieb (Carl Walker), Neal Morton, standing (Barton Malow). (Photo by the writer.) (Ed. note: "Barton" corrected from "Baron")

The presentation was by no means just a bunch of concrete guys pouring out homespun phrases. It was a bunch of concrete guys with 3-D renderings of the site and their proposed phasing of the construction to take place in the tight quarters on the library lot.

Both companies had put effort not just into 3-D modeling, but into getting to know their potential client. Christman met with councilmembers.  Barton Malow attended DDA board and city council meetings – at the interviews, The Chronicle had noticed the face of Neal Morton of Barton Malow, which had grown familiar from some of those meetings. Morton had also put time into measuring current light levels (in  foot candles) and noise levels (in decibels) at the site so that they’d know what kind of comparative impact the construction was having.

Morton’s effort, however, was ultimately not rewarded with a recommendation to the board that his company be selected as construction manager.

Still, Barton Malow and Morton could make money on the job – if they’re selected as a concrete subcontractor. The construction manager candidates have their “in house” concrete divisions, and would ordinarily not need to subcontract out that work. But the DDA would like the construction manager for this project to bid out the concrete work. It was a question that DDA board member Leah Gunn put to the construction manager candidates during the interviews: Would they be comfortable having to compete for the concrete work with other bidders? The correct answer was yes.

The candidates for the job emphasized that the close quarters of the site made it a challenge – both logistically and in terms of minimizing impact on the immediately surrounding property. They’d be installing earth retention systems that would minimize vibration impacts, for example.

Why Christman is the Committee’s Choice for the Job

At Wednesday’s meeting of the DDA’s capital improvements committee, Mike Ortlieb of Carl Walker reported that they’d followed up with six different references for Christman: the cities of Lansing, East Lansing, and Traverse City; Foote Hospital, Catalyst Development, and Spectrum Hospital.

They heard back from four of them. There was “not a negative word in any of them,” said Ortlieb. What had been particularly impressive was the fine job of coordination on any issues that had come up. It was their people who really made the difference, he reported.

The financial picture for Christman had also checked out. Adrian Iraola of Park Avenue Consultants, who’ll be coordinating with the construction manager for the DDA, said that Joe Morehouse, deputy director of the DDA, had cross-referenced the financial statements. Asked by board member Roger Hewitt if they’d looked at an audit, DDA executive director Susan Pollay indicated that Christman’s numbers had been checked using an online service from Dun & Bradstreet Inc.

But for Hewitt and other capital improvement committee members, what made Christman rise above the other three was the fact that they just recently completed three simultaneous projects of the same kind as the underground parking project planned in downtown Ann Arbor – they’d worked on the Michigan Street Development project in Grand Rapids. Plus, they’d be bringing that same project team to Ann Arbor.

Carl Luckenbach of Luckenbach|Ziegelman Architects listens to a presentation from the Christman Company, one of four candidates for the job of construction manager for the Fifth Avenue underground parking garage. (Photo by the writer.)

Recently-elected board chair John Splitt placed a high enough value on the people on the project team that he said he’d like it written into the contract that if Christman were selected to handle the actual construction phase – the current award for the job is just the pre-construction phase – then he wanted that same project team in place.

Recently-appointed board member Newcombe Clark noted there was an interesting parallel between Christman as a construction company with its own “in house” concrete division, and Christman as a construction company that is also affiliated with its own development company:  Christman Capital Development Company. As previously noted, the DDA wants its construction manager to solicit sealed bids for subcontracted work – the construction company’s “in house” concrete division won’t have any advantage against other bidders.

In the same way, Clark said, it’d be important that Christman as a development company not have any advantage in an RFP (request for proposals) process for the question of what, if anything, gets built on top of the underground parking structure.

The question of “what goes on top” was a contentious one at city council’s July 6 meeting when the council ultimately passed a resolution to set an RFP process into motion for how the top of the parking garage would be developed.

It’s possible, even likely, that alterations in the parking garage design might need to be undertaken on the fly during construction to accommodate plans for what goes on top. So, during the interviews last Friday, Carl Luckenbach of Luckenbach|Ziegelman Architects, who’s on the design team, asked candidates how well-equipped they might be to deal with such design revisions.

At Wednesday’s capital improvement committee meeting, Hewitt emphasized that “no RFP would come from us [the DDA]!”

The Lawsuit Against the City of Ann Arbor

Recall that references were checked for Christman, the construction company recommended by the DDA’s capital improvements committee for the construction manager job. Of those, Mike Ortlieb indicated that one was a neighbor to the Grand Rapids street improvement project that Christman had worked on, directly across the street from the site.

In Ann Arbor, it’s two immediate neighbors to the Fifth Avenue construction site – Herb David Guitar Studios and Jerusalem Garden restaurant – who are parties to the lawsuit filed on Aug. 11 against the city of Ann Arbor.

One: Nuisance

The  first count of the suit’s claim is one of nuisance:

86. The City’s proposed Parking Garage project will cause vibrations, noise and dust, creating a nuisance that will cause damage to, and interfere with the businesses, of Plaintiffs Herb David Guitar Studio and Jerusalem Garden.

Two: Trespass

The second count of the suit’s claim is one of trespass:

94. If the Parking Garage project is permitted to go forward, vibrations, noise and dust from the construction process will physically invade the Plaintiffs’ properties.

95. The vibrations, noise and dust which will enter, settle upon and physically invade Plaintiffs’ properties will interfere with Plaintiffs’ use and possession of their properties and will constitute a continuing trespass upon Plaintiffs’ properties.

96. Plaintiffs do not consent to having vibrations, noise and dust physically invade their land and property.

Three: FOIA Violation

The third count of the suit’s claim is that the city of Ann Arbor violated the Freedom of Information Act in failing to provide documents that the Great Lakes Environmental Law Center had requested under that act:

108. The City has failed to meet its burden of claiming an exemption because FOIA exemptions must be supported by substantial justification and explanation, not merely conclusory assertions.

109. The City withheld email communications among Council members concerning whether to postpone a decision on the Parking Garage resolution which is clearly a matter of urgent public interest. These communications do not fall within any of the exemptions to FOIA claimed by the City.

In part, GLELC became aware  of the failure of the city to provide responsive documents through a FOIA request made by The Chronicle:

69. Upon information and belief, much of the material exempted from GLELC’s FOIA requests were disclosed as part of a similar FOIA request submitted by The Ann Arbor Chronicle.

Four: Open Meetings Act Violation

The FOIA violation claimed in the third count of the suit is a key element related the fourth count, which is a claim that the  Open Meetings Act was violated at the Feb. 17 meeting of the city council:

122. The Open Meetings Act requires that all decisions and deliberations of a public body shall be made at a meeting open to the public. MCL 15.263

123. The City violated the Open Meetings Act when City Council members discussed and decided not to postpone a vote on the resolution to approve the Parking Garage project through private email communication.

124. After the private email discussion among Council members, Council voted to approve the site plan for the new Parking Garage and the bonding to finance the project.

Paragraph 54 (b) of the complaint indicates the specific councilmembers, whose email exchanges during the Feb. 17 meeting are alleged to constitute a violation of the Open Meetings Act, are Carsten Hohnke, Sandi Smith, Margie Teall, Leigh Greden, Marcia Higgins and Sabra Briere. In The Chronicle’s set of emails, we identify only one email involving Briere, which was sent to her and Smith by Higgins at 8:27 p.m. with an empty body and the subject line: “I won’t be asking for a postponement.” To the extent that  GLELC wants to make a quorum-based argument that a meeting took place that was not properly noticed,  it may depend on demonstrating that Briere looked at that email during the meeting.

As a part of that OMA count, the suit states that because of the FOIA violation, GLELC did not become aware of the OMA violation until long after it occurred:

126. In response to GLELC’s FOIA request, the City refused to provide the email communications between Council members regarding postponement of the vote on the resolution to approve the Parking Garage.

127. As a result of the City’s failure to comply with FOIA, Plaintiffs did not become aware of the private emails and the City’s violation of the Open Meetings Act until on or about July 9, 2009.

Five: Violation of MEPA

The details of the claimed violation of the Michigan Environmental Protection Act are discussed more fully in a previous Chronicle article. From the complaint:

148. The proposed Parking Garage will “pollute, impair and destroy” the natural resources in several respects, including, but not limited to, the following:

(a) The Parking Garage will increase motor vehicle miles traveled (“VMT”) to downtown Ann Arbor, causing increased greenhouse gas pollution and other air pollution impacts;

(b) Construction  of the Parking Garage will create significant localized environmental impacts such as particulate pollution, dust and noise in the project area; (c) The manufacture and synthesis of construction materials require vast amounts of resources and energy with associated pollution, impairment and destruction of the natural environment; and (d) Such other pollution impacts as may become apparent during the course of discovery in this matter.

149. During the City Council meeting on February 17, 2009, Environmental Commission Chairman Bean urged City Council to postpone its decision regarding the bonding and approval of the new Parking Garage until the City properly considered the need for the project, the environmental impact of the project and the range of less impacting alternatives to the project.

150. In clear violation of MEPA, the City failed to consider the environmental impacts of the proposed new Parking Garage and/or the alternatives to the Parking Garage.

What’s Being Asked of the Court?

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs request the following relief:

(a) Declare that the City approved the Parking Garage project in violation of the Open Meetings Act;

(b) Declare that the City’s nondisclosure of requested documents violated the Freedom of Information Act;

(c) Enter an order which invalidates City Council’s approval of the site plan for the Parking Garage and the bonding to fund the project which occurred at its meeting on February 17 , 2009 ;

(d) An order which enjoins City Council members from engaging in any further private emails discussions during public meetings regarding the Parking Garage project or funding for the project; [emphasis added]

(e) Enter an order holding that the proposed Parking Garage project constitutes a threatened nuisance to Plaintiffs’ properties;

(f) Enter an order holding that the proposed Parking Garage project constitutes a threatened trespass to Plaintiffs’ properties;

(g) Enter an order holding that the proposed Parking Garage project is likely to pollute, impair or destroy the air, water and other natural resources;

(h) Enter a preliminary injunction requiring the City to undertake a study to determine the following:

• (i) Consideration of the environmental impacts of the proposed new Parking Garage;
• (ii) Identification and evaluation of the purpose and need for the proposed new Parking Garage; and
• (iii) Evaluation of alternatives to the proposed new Parking Garage;

(i) Enter a preliminary injunction which prohibits the City from constructing the Parking Garage until a comprehensive study as detailed above is completed;

(j) If construction of the Parking Garage proceeds, award Plaintiffs damages for the City’s interference with the use and enjoyment of their properties as more fully described above;

(k) If construction of the Parking Garage proceeds, award Plaintiffs damages for the trespass upon their properties committed by the City as more fully described above;

(1) Award GLELC its actual and reasonable attorney’s fees, as required by MCL 15.240(6);

(m) Award Plaintiffs their actual and reasonable attorney’s fees as required by MCL 15.271(4); and

(n) Award Plaintiffs such other relief as the Court deems just under the circumstances.

Chronicle Commentary on What’s Next

The city of Ann Arbor has 21 days to file a written answer to the court in response to the suit filed by GLELC. Based on The Chronicle’s understanding of the requirements of bond delivery – described at the beginning of this article – the fact that a lawsuit has been filed surrounding the issuance of the bonds could stop the parking garage project at least until the city files a response. Specifically, on our understanding, the existence of the lawsuit stops the project because it makes bond delivery impossible – because  bond delivery requires there be no pending litigation on the issuance of the bonds.

The full DDA board will not meet to vote on the award of the construction manager job for pre-construction services until sometime in the week of Aug. 17. But if the lawsuit remains unresolved past the end of next week, it’s fair to start the clock on the length of the project’s delay.

The request (d) in the lawsuit by the plaintiffs that the court enjoin city councilmembers from further email communications on the topic of the underground parking garage is a narrowly drawn version of requests to the city council that The Chronicle made earlier this week. That is, The Chronicle’s requests have not yet been escalated to litigation, and the request is not confined to the topic of the underground parking garage. Those requests are numbered 1-3 in this excerpt from the full text of our communication.

On examination of the corpus of email exchanges between city council members during open meetings, it is clear that many of these exchanges augmented the open deliberations as viewed by a public observer, thus effectively shielding a portion of the council’s deliberation from public view. This is not a gray area and constitutes a violation of both the letter and spirit of the OMA.

It is The Chronicle’s position that the city council should adopt a policy to prevent such instances of Open Meetings Act violations in the future. Our concerns for the openness of future discussions of public policy could be addressed by immediately enacting a council policy that does the following:

1. Prohibits electronic communications between members of city council during public meetings, because such electronic communications are not accessible to the public at the time of the meeting.
2. Defines “electronic communications” broadly enough to include email, instant messaging, text messaging and use of third party message services such as Facebook.
3. Does not rely on self-policing or FOIA requests made by citizens to check for compliance with the policy.

There are obvious technology solutions that would allow for the council to conduct its business in an efficient and convenient way, while still enforcing the openness that Open Meetings Act requires, a requirement which the Ann Arbor city council has not met in its recent history as demonstrated by the corpus of emails obtained by The Chronicle under the FOIA.

In light of our specific interest in the Open Meetings Act, it is that aspect of GLELC’s lawsuit that has been filed against the city on which we will focus as the litigation makes its way through the court.

[Partially Searchable Text of Complaint]