The meeting, which is scheduled for the Sunday evening before Monday council meetings, is described on the city’s website as an opportunity “to discuss and gather information on issues that are or will be coming before them for consideration.”

Developer Alex de Parry hams it up with councilmembers Mike Anglin (Ward 5) and Sabra Briere (Ward 1) before the Sunday caucus got started. (Photo by the writer.)

Yesterday evening, what was on the minds of residents Ethel Potts, Tom Whitaker, Scott Munzel and Alex de Parry was an issue coming to the council for consideration today, Monday, June 7 – the Heritage Row project proposed for South Fifth Avenue, south of William Street. De Parry is the developer for that project and Munzel is legal counsel.

Kathy Griswold gave a report out from a recent meeting on the city’s urban forestry plan, which she had attended from the perspective of sight lines for traffic at intersections – vegetation can interfere with visibility.

During the discussion about vegetation on lawn extensions, John Floyd, who’s running for the Ward 5 seat currently occupied by Carsten Hohnke, arrived at the meeting. And Floyd was able to settle a point of good-natured disagreement on the status of corn as a grass.

Heritage Row

The Heritage Row project includes 79 units – 12 efficiencies, 9 1-bedroom, 43 2-bedroom, 14 3-bedroom, and 1 5-bedroom apartment. Those units will be distributed over seven renovated existing houses and three buildings to be constructed behind the existing houses. [Additional Chronicle coverage: "Heritage Row Moves to City Council"]

Heritage Row: Public Hearings

Because the public hearing for the site plan was not properly noticed a week in advance of the June 7 hearing, that public hearing is expected to be continued to the June 21 meeting of the council, when a decision on the site plan will be made. [Chronicle coverage: "Heritage Row Vote Likely Delayed"] Procedurally separate from the site plan approval is a council decision on the rezoning request for the Heritage Row project.

The public hearing on the rezoning associated with Heritage Row was properly noticed, but there is speculation that the council will postpone a decision on the rezoning until June 21 as well – arguments for or against the site plan potentially bear on the rezoning decision.

The intimate connection between site plans and PUD (planned unit development) rezoning requests was the focus of much of the conversation at the caucus. Sabra Briere (Ward 1) pointed out that there was one exception she could think of to the connectedness between rezoning and site plan – the council had approved a PUD request for Casa Dominick’s [Oct. 19, 2009] without approving a site plan at the same time.

Typically the site plan is approved after a rezoning – but still at the same meeting. Briere asked Potts to explain why she felt that a two-week time difference, as opposed to the time difference internal to a single meeting, would be significant. Potts indicated that if the council passed the rezoning, they’d essentially have “no choice” but to pass the site plan, and delaying the vote by two weeks would amount to “pretending” that there is no site plan.

Potts also noted that pushing a decision to June 21 would mean that the council would be faced with deliberations on a proposed historic district for the area on the same evening – the first reading on the South Fifth/Fourth Avenue historic district is scheduled for June 21. [See Chronicle coverage: "S. Fifth Avenue: Historic District, Development"] Potts characterized the overlap as “awkward” – Heritage Row is located within the area that would become a historic district if the council approves the study committee’s recommendation. Briere observed that “Some people would say it’s poetic!”

Heritage Row: Merits of Project

Potts called on the council to have a deeper discussion on Heritage Row than the staff report and the planning commission’s deliberations had reflected – “give your reasons for voting one way or the other.”

On the question of how to evaluate the merits of a particular PUD proposal, Anglin pointed to his interest in certainty – he wanted to know that the project as described would actually be built.

Speaking to the substance of the Heritage Row project, Whitaker noted that one requirement of Ann Arbor’s PUD ordinance was that a project is not supposed to be detrimental to surrounding properties. Based on the shading study, he said, adjoining properties on William Street would be subject to shading. Whitaker used that to illustrate the connectedness of this particular rezoning request to the site plan:  “You can’t tell [the shading] from the development agreement, but you can tell it from the site plan.”

Whitaker said he didn’t think the project met the high bar for public benefit described in the PUD ordinance – it offered less benefit than The Moravian, he said. [The Moravian was another residential development, proposed for a site on East Madison between South Fifth and Fourth avenues – the city council lacked sufficient votes to approve the project. See Chronicle coverage: "Six-Vote Majority Leaves The Moravian Short"]

Whitaker also reflected on the A2D2 rezoning process the city had recently completed and noted that the D2 zoning designation had been designed for interface areas between the core and the neighborhoods. De Parry’s Heritage Row project was more akin to a D2-like project than one in a residential neighborhood, he said. But no one had suggested that D2 should extend southward down Fifth Avenue, during the process of developing the A2D2 zoning for downtown.

If the idea was to stop suburban sprawl, said Whitaker, then there needed to be residential neighborhood options near to the core.

Munzel countered Whitaker’s remarks by saying that there was never any community consensus for density restricted just to the downtown. The Calthorpe process, which fed into the A2D2 rezoning effort, he said, had excluded the area outside the downtown for political reasons. However, the Downtown Residential Task Force, which was formed before the Calthorpe process began in 2005, had suggested that the focus of greater density include the area within a quarter mile of the downtown area. The reason the task force had reached that conclusion, he said, was because density is difficult to increase in the core.

Speaking to the issue of how the PUD ordinance is to be evaluated with respect to a project, Munzel characterized it essentially as “making legislation” which could be achieved by citing specific details or also by appeal to broad-based themes. A PUD, he said, was essentially a bargain struck between a municipality and a developer based on a good-faith argument that a project is better for the community.

Alex de Parry, the developer of Heritage Row, which has at least a two-year history, told Briere and Anglin that to him, the probable delay in the vote due to lack of proper noticing felt like a repeat of what had happened a year ago. On that occasion, the project – then called City Place – had come before the council for a vote, but it had been remanded back to the planning commission because of procedural mistakes on the part of city staff. [.txt of June 7 email sent by Alex de Parry to the city council concerning publication of notices]

Heritage Row: Window into Approval Process Procedure

Related to procedural issues, Munzel told Briere and Anglin that he was against the removal of specific time parameters from the approval process for site plans. The city planning commission has recently discussed timing as well as other issues in the approval process and made recommendations on them. [Chronicle coverage: "Planning Commission: A Matter of Timing"]

One of the procedural mistakes alluded to by de Parry was a requirement that the most recent up-to-date site plan drawings be publicly accessible 24/7 for a week before public hearings. Whitaker allowed that the 24/7 requirement was probably too stringent, but that the planning commission’s recommended language went “too far in the other direction.” Whitaker suggested that there needed to be some accommodation for accessibility after regular business hours. What the planning commission had recommended, he said, amounted to shrinking access to public information instead of expanding it.

Grass, Trees, Foliage

Kathy Griswold reported that she’d attended the recent meeting on the urban forest management plan. She described the meeting as facilitated by a consultant and that it had involved receiving input only in a very controlled fashion – participants had to answer the presenter’s questions using the presenter’s process. There were around 30 people at the meeting, she said. There’d been some discussion of revision to Chapter 40 of the city code.

Griswold said she’d attended the meeting from the perspective of foliage and interference with sight lines at intersections. Before the caucus, Griswold showed The Chronicle a video montage she’d put together of vegetation obscuring sight lines for pedestrians and bicyclists.

Related to the sight-line issue were 30 citations Griswold said the city had issued for day lilies growing in people’s lawn extensions [the area between the sidewalk and the street] – while the lilies were in bloom. It would make more sense, she said, to approach the issue with education, informing people before the spring what the rules are and then ask people to play by the rules.

Griswold contrasted enforcement of the ordinance that prohibits plants as tall as day lilies on lawn extensions, with the city’s approach to dealing with foliage that obstructs sight lines at intersections. The city would not deal with foliage at intersections, she said, even when complaints were made about it. [Griswold has set up a website on this issue: SeeKids.org]

The conversation at caucus then veered “into the weeds,” as people then talked about ways that people liked to keep their lawns and how that fit with the city’s ordinances. The question arose as to whether corn was a grass – because some people like to grow corn in their front yards or in their lawn extensions. John Floyd used a handheld mobile computing device to consult the Internet on the question – and yes, corn is in the grass family, according to Wikipedia, he reported.

Sabra Briere (Ward 1) and Stephen Kunselman (Ward 3) listen to a presentation from the Committee for the Preservation of Community Quality at the city council's Sunday night caucus. (Photo by the writer.)

The Committee for the Preservation of Community Quality gave a presentation of their response to the recently conducted environmental assessment of a possible runway extension at the Ann Arbor municipal airport. And residents expressed concerns about the proposed Fuller Road Station and its location on city-owned land designated as a park in the city’s PROS (Parks and Recreation Open Space) Plan.

By the time questions about the possible upcoming budget amendments were raised, the number of councilmembers attending the caucus had dwindled from four to two. Mayor John Hieftje, Sabra Briere (Ward 1), Stephen Kunselman (Ward 3), and Mike Anglin (Ward 5) were there through most of the meeting, but it concluded with just Briere and Anglin.

And at the tail end of the gathering, the residents who attended weighed in on the nature of caucus itself. They offered their perceptions of the value of discussions among councilmembers at the caucus versus their own remarks. They’d prefer to see councilmembers in action and would be willing to trade some of their own time for watching the work of council.

The Nature of the Sunday Night Caucus

The relatively brief discussion of the function of caucus evolved from a conversation about possible amendments to the city’s budget that might be undertaken before it’s adopted. The public hearing on the budget is May 3, but it won’t be adopted until the council’s May 17 meeting. Asked if the council would be circulating proposed budget amendments beforehand – as they’d done with the A2D2 downtown rezoning project – Sabra Briere (Ward 1) replied that she did not foresee that happening.

There was, said Briere, no “leader of the Senate” for the council, so it was unlikely that the wisdom of the council would be pooled together beforehand for presentation at the May 17 meeting. And if the council were to do that, she cautioned, there would be a perception that they’d held closed meetings.

Asked if some of the discussion of amendments could be undertaken at a council working session, Briere noted that the topic of the working sessions is typically set by the city administrator. The next available slot for a working session is May 10. “What about the caucus itself?” Briere was asked. Briere observed that the open discussion among councilmembers at a caucus was limited by the number of councilmembers who attended. [Attendance by councilmembers other than Hieftje, Kunselman, Briere, and Anglin is a relative rarity. Some councilmembers have enjoyed perfect non-attendance at the caucus for nearly a year.]

Resident Ethel Potts observed that for councilmembers to have a discussion amongst themselves at the caucus on their upcoming business would be a challenge, because “we take up most of your time.” [The caucus has evolved to be, practically speaking, an additional opportunity for public commentary by residents, not the kind of event described on the city's website:  "... meetings of the mayor and members of council to discuss and gather information on issues that are or will be coming before them for consideration." Chronicle commentary: "Column on Caucus: Make It a Real Event"]

Asked if she’d be willing to trade some of the opportunity for the public to comment at the caucus for watching the council engage in discussion amongst themselves, Potts allowed that she would. The same three-minute time limit that is enforced for public commentary at regular council meetings would be fine, she said.

Budget Amendments, Cash from the DDA

As The Chronicle reported last week, the operations committee of the Downtown Development Authority will be bringing forward a resolution to the full DDA board at its Wednesday, May 5 meeting, calling for the DDA to pay the city $2 million. [Chronicle coverage: "DDA to Tie $2 million to Public Process"]

Up to now, there has been no formal request from the city council to the DDA for a payment in a specific dollar amount. There is also not a way to enforce, from the city’s side, the commitment to a future public process for negotiations between the city and the DDA, which the DDA’s draft resolution calls for. The last opportunity before the DDA’s May 5 meeting  for the council to pass a resolution of its own addressing the $2 million question would be at the council’s May 3 meeting.

Although there is currently one DDA-related item on the council’s May 3 agenda, it does not concern the $2 million payment, but rather the approval of the revised DDA bylaws, which the DDA board adopted at its Feb. 3, 2010 meeting.

Asked if they foresaw the possible $2 million from the DDA being used to avert layoffs in safety services – police and firefighters – both Briere and Anglin indicated they felt that was likely. Anglin said that cuts to police would make it a reactive rather than a proactive force. Briere noted that the city is not a business, but rather a service organization. The city employs people to provide services, she said. And because of that, to reduce costs meant looking at cutting people. But she said if police and firefighters were cut, residents would find that they were not happy with the level of service they were being provided.

So if the DDA board approves the $2 million payment, it appears there is at least some support on the council for using it to avert safety services layoffs.

Fuller Road Station

[For The Chronicle's most recent coverage of Fuller Road Station: "AATA Gets Its Fill of Fuller Road Station"]

Resident Nancy Kaplan expressed two points on the proposed Fuller Road Station. First, she contended that it’s “for sure city parkland.” To say that it’s already used for a parking lot because of a mistake in the past does not mean, she said, that the city should continue with that mistake. Second, she pointed out that the University of Michigan had not promised not to build the two parking structures on Wall Street in exchange for construction of the Fuller Road Station. Rather, she pointed to the memorandum of understanding, which says that the university will suspend those plans “at this time.”

Regarding the status of the land, the city’s transportation program manager, Eli Cooper, had pointed out at his recent presentation to the AATA board that the public land zoning designation has many possible uses, according to city code:

5:10.13. PL public land district.
(1) Intent. This district is designed to classify publicly-owned uses and land and permit the normal principal and incidental uses required to carry out governmental functions and services.
(2) Permitted principal uses.
(a) Outdoor public recreational uses, such as: playgrounds, playfields, golf courses, boating areas, fishing sites, camping sites, parkways and parks. No structure shall be erected or maintained upon dedicated park land which is not customarily incidental to the principal use of the land.
(b) Natural open space, such as: conservation lands, wildlife sanctuaries, forest preserves.
(c) Developed open space, such as: arboreta, botanical and zoological gardens.
(d) Educational services, such as: public primary and secondary schools, and institutions of higher education.
(e) Cultural services, such as: museums and art galleries.
(f) Public-service institutions, such as: hospitals, sanatoria, homes for the elderly, children’s homes and correctional institutions.
(g) Essential services, buildings containing essential services and electrical substations.
(h) Municipal airports.
(i) Civic center.
(j) Government offices and courts.

The list of possible uses does not currently specify a transportation facility like the Fuller Road Station. However, at its May 4 meeting, the city’s planning commission is scheduled to hold a public hearing on a text amendment to that section of the city code that would replace “municipal airports” with “transportation facilities.”

At the caucus, Kaplan went on to say that there were other ways for UM to address its parking needs. She pointed to the fact that the facility had been divided into two components – the train station and the parking deck with bus bays. The project currently has nothing to do with rail transportation, she said. [The project has been divided into those two components and staged chronologically, with the train station in a later phase.]

Briere told Kaplan that whatever happened with Fuller Road Station – whether it’s built or not – she hoped Kaplan would remember her passion. She said she wanted Kaplan to remember how she feels now, and that in case UM in the future decided to build parking decks on Wall Street, Kaplan would let her voice be heard. When UM wanted to build parking decks on Wall Street earlier, Briere said, Kaplan’s voice was silent.

Kaplan countered that just because she’d not spoken up against the proposed Wall Street parking decks did not mean that she could not speak up now. Briere clarified that she did not mean that Kaplan should be silent now, but that if UM resurrects its plans to build Wall Street parking structures, she hoped Kaplan would weigh in.

Kaplan then noted that the situation felt as if one part of the community was being pitted against another and that she felt like this happened fairly often. Briere allowed that Kaplan was “quite right” about that.

Mayor John Hieftje weighed by ticking through the standard talking points on the rationale for locating Fuller Road Station where it’s proposed: east-west rail is key to the region’s future success; the UM hospital employs 20,000 employees and has 2 million visitors per year; the site is consistent with a possible north-south intra-city connector being studied for the Plymouth-State corridor.

Hieftje indicated that Obama’s University of Michigan commencement address the previous day had provided an occasion for him to talk to U.S. Sen. Carl Levin and Congressman Sandy Levin about possible federal support for the Fuller Road Station. [The Levins were among a slew of dignitaries in attendance at UM commencement.]

Hieftje asked Kaplan where she would put parking for the university. She responded by saying that just because she objected to a parking deck at one location did not obligate her to provide the solution. Briere then drew out from Kaplan that Kaplan objected to a parking deck at the Fuller Road location, and also objected to a train station there, though Kaplan said she supported the idea of rail transportation.

In light of Kaplan’s objections to a train station at that location, Briere encouraged Kaplan to think about where she would put a train station, working under the relevant constraints. Specifically, it would need to be next to the railroad track, and the land would need to be already city-owned or else acquired. Briere told Kaplan she was not asking her to solve the problem, but rather just asking her to think about it.

Asked if there was some possibility of putting a ballot question before voters in November on the sale of the land where the Fuller Road Station is proposed, Briere figured that would not happen. Once a proposal to sell land was put on the ballot, she said, that would be seen as a step away from the assurances that many councilmembers have given over the years that they were not thinking of selling parkland.

Briere then recounted some to the history of the charter amendment passed in 2008 requiring a vote of residents before any parkland could be sold. She noted that former councilmember Bob Johnson, who “sat in this chair before me” representing Ward 1, had been the father of the “we-will-not-sell amendment.” And Johnson – who was no longer on the city council, but provided advice to Briere on the wording of the amendment – had said that it should not include leasing. That is, leasing without a voter referendum would be allowed.

Airport Runway Extension

The caucus was led off by a multi-person presentation by the Committee for the Preservation of Community Quality. The committee gave their response to the environmental assessment (EA) recently completed on a proposed runway extension at the Ann Arbor municipal airport. [Chronicle coverage of the public hearing on the EA: "Ann Arbor Airport Study Gets Public Hearing"] Kathe Wunderlich introduced the group.

Barbara Perkins led off by saying that she hadn’t attended a caucus in a long time, but she’d been active in local politics 40 years ago, when she first moved to Ann Arbor and when the airport runway was an issue. She said she never thought she’d have to be back in the 21st century to argue against the extension again.

Perkins called the airport layout plan a “disaster” and criticized the EA for failure to address issues like the potential impact on the city’s water supply. She said that after passage of the airport layout plan in 2007, the city staff had been called upon to gather public input, but that had not happened. She said that she’d requested to meet with her Ward 4 city council representatives [Marcia Higgins and Margie Teall] on the issue and that they’d arranged to meet, but the chair and the vice-chair of the city’s airport advisory committee had attended, and her city council representatives had left, saying,”These gentlemen will answer your questions.”

The bulk of the presentation was delivered by Andrew McGill, based on a spiral-bound 60-page document that was the group’s formal response to the Michigan Dept. of Transportation and the Federal Aviation Administration on the EA.

Key points presented by McGill from the report:

I. The project’s stated purpose and need is unsupported by the evidence.
A. The EA supports neither the problem it aims to solve nor its purported solution.
B. The EA incorrectly relies on total annual operations to support the proposed runway extension.
C. Shifting Runway 6/24 150 feet to the southwest will not achieve an additional margin of safety.
D. The EA falsely intends to convey rural setting in a densely populated area.

II. The EA does not consider all reasonable alternatives.

III. The EA fails to adequately analyze or disclose the project’s air quality impacts where it fails to address or determine the project’s Clean Air Act conformity.
A. The EA fails to establish that the project is exempt.
B. The EA fails to establish that the project is presumed to conform.
C. The EA fails to establish the project’s conformity status.

IV. The EA fails to account for wells on airport property.

V. The EA fails to analyze the presence of hazardous wildlife near the airport and fails to present any mandatory mitigation measures.

VI. The EA does not acknowledge or analyze the project’s manifest growth-inducing impacts.

VII. Political jurisdictions that proposed action or alternatives would impact.

VIII. Noise modeling for the project failed to include increased jet aircraft and nighttime operations in developing noise contours.

IX. Procedural justice

Key among the many conclusions presented by McGill was that there is a habitat at the airport  conducive to Canada geese – which are numerous enough to warrant goose-crossing signs on nearby roads. The FAA requires appropriate mitigating measures if a habitat that could cause movements of hazardous wildlife (Canada geese) into the approach and departure airspace is located within five miles of the airport. The cost of those mitigating measures, McGill felt, would be prohibitive.

Sol Castell, a commercial airline pilot, addressed the issue of whether a longer runway would mean that heavier aircraft could take off and land there. For him as a pilot, he said, it was clear: a longer runway allows heavier aircraft. He then cited a landing-distance chart showing that prescribed landing distances increase with increased weight.

As a part of his recurrent pilot training, Castell said, they distiguish between managing threats and managing errors. Managing errors, he said, is managing the past. You manage the future by managing threats. The threat of heavier aircraft flying at low altitudes over residential areas, he said, could be eliminated by not extending the runway. The idea that runway overruns could be addressed by a runway extension was, said Castell, “managing the past.” The accident reports for the runway overruns, said Castell, showed that the incidents were attributable to pilot error in failing to control the direction of the aircraft.

There is no action currently before the city council – or scheduled to come before the council – regarding the proposed runway extension. The Committee for the Preservation of Community Quality does not expect any action to be brought to the council, because they see the EA as flawed in so many ways.

Other agenda items receiving some discussion were the public hearing scheduled on the Google Fiber initiative, plus a contract revision for Recycle Ann Arbor to perform single-stream curbside recycling using automated carts.

Ban on Cell Phone Use While Driving

At its Feb. 16, 2010 meeting, the city council had given initial approval to a proposed city ordinance banning cell phone use while driving. That initial approval – at the ordinance’s first reading before the council– was followed by revisions to the ordinance that were numerous enough that it was presented again as a first reading at the council’s March 1, 2010 meeting. The council again gave the ordinance its preliminary stamp of approval.

On the agenda for Monday is the second reading of the ban on cell phone use while driving, together with a public hearing on the item.

But at the Sunday caucus, Sabra Briere (Ward 1) indicated that she’d heard from the ordinance’s sponsor, Stephen Rapundalo (Ward 2), that it would likely be postponed – more revisions had been undertaken to the ordinance language. Mayor John Hieftje confirmed that he’d heard similar news from Christopher Taylor (Ward 3).

Asked if this might mean a third presentation of the ordinance to the council as a “first reading,” Hieftje allowed that it could mean that. He said he saw it as evidence that the process was working – the community was giving feedback on the proposed ordinance that was being incorporated into the language.

Asked if the council might consider – in lieu of passing a local ordinance – passing a resolution calling on the state legislature to take action on a cell phone ban, Hieftje allowed that this was a possibility. He also said that if the ordinance eventually failed to win council’s approval, that it would likely be based – for some councilmembers – on the fact that they see the issue as more appropriately addressed at the state level.

Briere, for her part, said she had a concern about the fact that the ordinance specified it was a primary offense – drivers could be pulled over for cell phone use specifically. Secondary offenses require some other additional reason for a driver to be pulled over. Resident Eppie Potts remarked that she figured if she were pulled over by the police, by the time the officer would approach the car she’d have put the cell phone down.

Resident Jack Eaton, who works as an attorney, indicated that he represented transit unions. Every transit union in the state, he said, has a rule against drivers using cell phones while driving. The difficulty, he said, is that enforcement becomes a he-said-she-said issue. How could a hands-free Bluetooth device be seen under long hair, for example?

Hieftje said he was concerned that when stopping motorists, looking for evidence of cell phone use was one more reason that police officers could use to look around in people’s cars.

Briere said she’d hate to think that we’d be sending police officers chasing after people using cell phones, while acknowledging that cell phone use is seen to be a genuine safety hazard by local traffic enforcement officers.

Briere elaborated on a statement from chief of police Barnett Jones, made at a recent city council meeting, that drivers using cell phones could currently be cited for careless driving, but that a cell phone ordinance would make things cleaner in a court of law. She said it would need to be shown that the cell phone was in use at the time of an accident, and that it would need to be demonstrated that such cell phone use caused the accident.

Mike Anglin (Ward 5) noted that the use of various hand-held electronic devices would only proliferate. He cited a demonstration of voice-activated commands for such devices that he’d witnessed as two tech people had squared off – one with a voice-activated smart phone and the other without – as they’d tried to find the answer to the question he’d posed: When was Budweiser founded? The guy with the voice-activated device was faster.

Google Fiber

The city council is holding a public hearing Monday evening on the city’s proposal that Google choose Ann Arbor as a site for installation of a fiber-to-the-home network. The council will be considering a resolution urging Google to select Ann Arbor as a site and promising “to take all lawful measures to expedite and accommodate the safe and efficient installation of the Google FTTH network.”

Though the Google Fiber network has been widely discussed as cost-free, the language of Google’s request for information (RFI) specifies that homeowners would be offered Internet service “at a competitive price” and this is reflected in the city council resolution.

Asked what they would consider to be a “competitive” price, Hieftje, Briere and Anglin required some time to noodle through what they currently paid to Comcast for their high-speed access, plus TV and phone. Consensus put that number between $60 and $100.

Asked how many residents of Ann Arbor they thought would be adopters of fiber and at what price, councilmembers were not sure. Hieftje said that Ann Arbor was one the most wired communities in the world.

Hieftje reported that he’d been included on a conference call with someone in the governor’s office the previous Friday in the wake of Gov. Jennifer Granholm’s trip to California to lobby Google to choose a Michigan city as a location for their fiber network. Based on his understanding from that phone call, he said, Google’s goal is to see the federal government take the lead on installation of fiber networks – their initiative would be a pilot to demonstrate how successful it could be. In Google’s view, said Hieftje, fiber optic access to the Internet should be like a utility.

On the question of competitive price, resident Jack Eaton speculated that the actual dollar amount would be comparable to Comcast, but that the Google fiber network would compete on quality and speed of service.

With respect to the service, Briere said she’d heard from constituents that they were already at the point of needing the kind of bandwidth that fiber offered (100-times faster than typical cable service), even if many people were not. She said in the next decade, she thought that video conferencing via fiber networks [an extremely high-bandwidth application] would play an increasing role.

On the question of neighborhood reaction to any hardware that might need to be installed external to houses, Briere offered her view that in light of the potential benefit, the aesthetic concerns could come later, not now.

Single-Stream Recycling

Late last year, the city made several decisions setting in motion a switch to single-stream curbside collection of recyclable materials from the current two-tote system – one for paper and the other for containers. The council heard a presentation at its Oct. 12, 2009 work session on the approach, which will include incentives for residents to set out their new single-stream carts for collection.

At their Nov. 5, 2009 meeting, the council authorized upgrades necessary for the materials recovery facility (MRF), and at their Dec. 21, 2009 meeting, they authorized the purchase of four new trucks plus 33,000 carts equipped with RFI (radio-frequency identification) chips.

At the Sunday caucus, resident Eppie Potts contended that most people didn’t know anything about the new single-stream system, and that when she told people about it they were shocked. She said that she did not want to dump the containers, which she rinsed out, on top of the paper she collected, out of concern that it would contaminate the paper. This was something the single-stream system would do anyway.

Potts wondered if the old recycling totes could be recycled. Hieftje said he would get an answer for her on that. From The Chronicle’s report of the council’s Nov. 5, 2009 meeting: “The new carts will be available in June/July 2010. The old totes can be recycled.”

Potts questioned the amount of public money spent on the project, which included, she said, $1.4 million for the carts, $1.2 million for trucks, and $3.2 million for upgrades to the facility.

Hieftje told Potts that the payback on the investment was estimated to be around six years and that money from the city’s solid waste millage had been set aside incrementally to be able to pay for those investments.

On the subject of the solid waste millage, resident Jack Eaton put the investment in single-stream recycling in the context of the cost-cutting measures for the solid waste fund being contemplated in this year’s budget planning. Those measures include elimination of curbside holiday tree pickup, as well as elimination of loose leaf collection. [Chronicle coverage: "Budget Round 4: Lights, Streets, Grass"]

The benefits of single-stream recycling, contended Eaton, would still be there when the time came, even if its implementation were delayed. He wondered if it might not have been wiser to delay that implementation.

Briere responded to Eaton by noting that the cost savings of eliminating the leaf collection and holiday tree pickup were relatively small. The question to ask about single-stream recycling, she said, was not just what it costs, but rather also what Ann Arbor gains.

On the solid waste millage, however, Eaton suggested that now, when the city is short of cash, the solid waste millage rate could be reduced, instead of investing in a single-stream system. Eaton suggested that with a reduction in the solid waste millage, the city could make a stronger case to voters that they should approve a Headlee override – which would restore property taxes to their original rates, before the Headlee amendment rolled them back.

Much of the conversation focused on a resolution added to the council’s Monday agenda on Friday, which calls for restarting a process to develop a city-owned parcel at 415 W. Washington. The land is currently used as a surface parking lot – net revenues from that lot were recently adjusted so that they go to the city of Ann Arbor, not the Downtown Development Authority.

Caucus attendees were generally skeptical about the 415 W. Washington resolution on the council’s agenda. They said it was merely a diversionary tactic to distract attention from the Library Lot, another city-owned property where some are advocating for an urban park. Hieftje disavowed the idea that there was a trade-off – open space at 415 W. Washington, but no urban park at the Library Lot. Hieftje left the Library Lot decision as still open, saying that he “would bet” that none of the submitted proposals would be adopted by the council.

Caucus conversation covered a range of other topics, including: golf, historic districts, and design guidelines for new construction in downtown Ann Arbor.

Design Guidelines

On the council’s Monday agenda is a resolution to appoint a task force which would oversee the formulation of design guidelines for new projects in downtown Ann Arbor. Those guidelines are the final piece of the A2D2 rezoning project for downtown. The city council recently dissolved the A2D2 oversight committee, with its work largely complete. [See previous Chronicle coverage on design guidelines: "Downtown Design Guides: Must vs. Should," "Another Draft of Downtown Design Guides," and "Zoning, Design Guides on Council's Agenda."]

At Sunday’s caucus, Ray Detter said he thought there was little opposition to the appointment of a task force to look at the final formulation of design guidelines and a plan for their implementation in the planning process. He said that he and numerous other people had been working for years on the idea, and alluded to their participation in the Calthorpe planning process in 2005. When the concept of a design advisory board did not show up in the final draft of the design guidelines document presented in September 2009, Detter said, they were “shocked.” That document had nothing to do with what they had been discussing, he said.

Detter, who serves on the Downtown Area Citizens Advisory Council, reported that this had prompted 16 citizens to meet and go over the design guidelines document to suggest corrections and refinements and additions. They welcomed the appointment of the task force, he said, which he hoped would move their work forward.

He felt that the resulting document would be better than what the city originally proposed. It would include specification of the design guideline review board, an outline of the board’s operation, and a mandatory process with voluntary compliance. Detter wound up his remarks with praise for councilmember Marcia Higgins (Ward 4)  for her participation in the A2D2 planning process, as well as for Hieftje. Detter stressed that the board needed above all else people with expertise, people who know what they are talking about.

Norm Tyler sketched out the contents of a handout he had provided to the city council concerning the appointment of the design guidelines task force. He said the document covered (i) problems that have been identified in the city’s original document, (ii) an outline of the responsibility of the task force, and (iii) a sketch of what the design review board could look like. Hieftje said he thought it would be good to take a couple of existing buildings and run them through the proposed process as a way of testing the process. Tyler replied that it was a good idea – this what his group had suggested.

Peter Pollock told the caucus that the job of the design guidelines task force was to prepare guidelines for the council to approve. But he stressed that two things were key: (i) more research needed to be done into how other communities dealt with design guidelines, and (ii) the guidelines needed to reflect the sentiments of this community in Ann Arbor. He echoed the sentiments of Detter in saying that there needed to be people with expertise on the design guidelines board, who understand what a design process actually is.

Part of the work of the task force, Pollack said, would entail determining what specific questions would be on an application for a project – the questions would largely determine the kind of answers that developers would give. Pollack also stressed the importance of making sure that the public was aware of the task force’s process throughout their work. He expressed the hope that the design guidelines would stimulate conversation about quality of design and what is important in a project.

Sabra Briere (Ward 1) clarified that the task force would be charged with creating the ordinance and at the conclusion of their work, the entity would be dissolved. But the ordinance would specify the creation of a design guideline review board, which would then have a role in the review of new projects.

Tom Whitaker addressed the caucus on the design guidelines as well, saying that he threw his support to them, echoing remarks that others had made on the subject.

415 W. Washington and the Library Lot

Although mayor John Hieftje explicitly disavowed at Sunday’s caucus any trade-off between the Library Lot and the resolution the council will be addressing on Monday concerning the 415 W. Washington parcel, caucus attendees drew a connection. The idea of restarting a process for development of the 415 W. Washington lot – partly as a park – was a way of directing attention away from the Library Lot, they said.

Last year, the city solicited proposals to develop the top of an underground parking structure that’s being built on city-owned property on South Fifth Avenue, just north of the Ann Arbor District Library. After formal interviews with proposers, the review committee set aside two projects that proposed open space on the Library Lot. The two remaining proposals that will move forward to city council are for hotel/conference centers.

Much of the caucus conversation centered on either the 415 W. Washington resolution, the Library Lot, or the connections people saw between them.

Alan Haber requested additional information about the cost of the footings to be installed in the underground parking structure so that he and his group, which had put forward a Library Lot proposal called the Community Commons, could develop a more precise business plan. The Community Commons, as well as the Ann Arbor Town Square – the two open-space proposals submitted in response to the city’s RFP (request for proposals) for the Library Lot – are not being recommended by the RFP review committee. But Haber pointed out that the council would have his group’s proposal in front of them to consider, even if it did not come in the form of a committee recommendation. [The city council is free to consider any of the proposals.]

Regarding the 415 W. Washington resolution , Ethel Potts said that it “just appeared” and was not on the city clerk’s printed agenda yet. That made things hard to follow, she said, when items were added to the agenda on Friday. At that, Sabra Briere (Ward 1) mused that Friday was better than Monday [the day of the meeting].

Rita Mitchell also spoke about the 415 W. Washington parcel. Mitchell said she appreciated the attention to the greenway, but noted that the parcel is located in Ward 5, said that the resolution should have included both city council representatives of Ward 5. [The sponsors of the resolution are John Hieftje (mayor), Margie Teall (Ward 4), and Carsten Hohnke (Ward 5). Teall and Hohnke were absent from the Sunday caucus.]

Mitchell went on to describe the resolution as “loose” and having “no teeth.” She said that she hoped for something “more toothsome.” She emphasized that she hoped that any community involvement in the development of open space at 415 W. Washington would not preclude open space in other areas. This was an apparent allusion to the still-hoped-for outcome for the top of the Library Lot – that one of the two open-space proposals would be considered and adopted by the city council.

Nancy Kaplan followed up on Rita Mitchell’s point, stressing that she felt it was not a matter of shifting energy for community participation towards the 415 W. Washington front but rather it was a matter of shifting away from the Library Lot. “It could be a diversion,” she said. She noted that having an “innovative process of community collaboration” as specified in the council resolution was something that had been explicitly rejected in the two open-space proposals for the Library Lot. “Why now?” she asked. The timing, she said, made it seem like a decision on the Library Lot had already been made. She said she hoped it was not merely a diversion. She echoed Mitchell’s sentiments that there was “not much tooth” in the resolution.

Bob Snyder said he was taken aback by an article that he’d read in AnnArbor.com over the excitement for a process to start planning for 415 W. Washington. He described it as a diversionary tactic. There were 16 “whereas” clauses and four “resolved” clauses, he said. For some of the “whereas” clauses, Snyder said, he couldn’t tell if they were “good, bad or indifferent.” He said he felt like the resolution was simply putting up a straw man while the Library Lot RFP review committee does its deliberations. Why, he wondered, was there no discussion on the agenda about the Library Lot?

Sabra Briere replied to Snyder by saying that the Library Lot would not be coming before the council until March. About the resolution concerning 415 W. Washington, Briere said she did not find out about it until Friday afternoon, just before she met with the mayor. She said she took the resolution to mean that the 415 W. Washington RFP process is broken. She recounted how the RFP review committee for 415 W. Washington had concluded in its final report that none of the three proposals the city had received were good enough to warrant a recommendation, as they did not meet all of the site objectives. And then nothing had happened, she said.

By way of background, the 415 W. Washington RFP review committee made a recommendation in its final report that the vision for the site be revised. They made a recommendation for how the vision should be revised, and said that the revised vision should be provided to the three proposers with an opportunity to respond by the end of March 2009. Asked whether she thought this “ball” from the committee had been in the city council’s or rather the city staff’s “court,” Briere pointed to it as city staff’s responsibility.

Hieftje described the 415 W. Washington resolution as stemming from a look at the greenway task force’s report, combined with his expectation that the historic district commission would not allow the demolition of the 415 W. Washington building. He described the first task of the groups identified in the council’s resolution as raising enough money to fund a full-time person who would then write grants – the mayor felt that there was a lot of money out there, energy grants for example, that could be found. The idea would then be to get matching funds for those grants. This process of writing grants and getting matching funds, he said, could be applied to other properties that could become a part of the greenway.

In response to Kaplan’s question of “Why now?” Hieftje said that the conversation around the Library Lot had inspired the 415 W. Washington resolution, and that it was not a matter of a diversion or any kind of “bait and switch.”

Hieftje said that he himself predicted that the council would recommend “none of the above” after evaluating the proposals for a Library Lot. He said he would bet the top of the underground parking garage would simply be a surface parking lot as a “holding pattern.” As far as the 415 W. Washington resolution, he said he had been in conversation with both the Arts Alliance and Allen Creek Greenway Conservancy, and that both of those organizations were ready to go.

Jack Eaton engaged the mayor in an extended conversation on the 415 W. Washington resolution as compared to the Library Lot. In response to remarks made by Hieftje earlier in the caucus, Eaton said he was happy to learn that the mayor didn’t think there was support on the council for any public financing of the project on the Library Lot. But he pointed out that $50,000 had been allocated by the Ann Arbor Downtown Development Authority to pay for a consultant to study the two remaining proposals, which involved public financing. In that light, Eaton said that he hoped that the $50,000 could be saved.

With respect to the 415 W. Washington resolution, Eaton said he hoped the public participation process outlined there would address the shortfall on public participation for the Library Lot process. At that point Hieftje interrupted Eaton, saying there had already been lot of public process around the 415 W. Washington parcel, which had included work by the greenway task force. Eaton acknowledged the previous public process, but noted that the resolution talks about “groups,” saying that the general public also needed to be included. There was then some back-and-forth among the mayor, Briere and Eaton about the exact language of the resolution and whether “individuals who are willing to invest time” was the public that Eaton was talking about.

Eaton summarized his point by saying it was simply important to seek public input early – from taxpayers generally. Hieftje then seemed to suggest that what Eaton meant was that all of the previous work involving public process with the greenway task force should be re-done. Apparently trying to move on to a different point, Eaton offered that they would have to agree to disagree on that point. At that, Hieftje declared, “I’m not disagreeing at all!” The mayor then went on to say that it was the second alternative suggestion for 415 W. Washington from the greenway task force that the resolution was exploring, and that it was clear that’s what they were doing. “It’s clear,” he concluded. To which Eaton replied, “It’s not clear.”

Eaton then transitioned to the topic of the Library Lot. With respect to the Town Square proposal [one of the open-space propsals – an urban park design submitted by Dahlmann Apartments], Eaton said that one argument against it had been that policing it – providing security – was an impediment. However, he noted, policing the proposed 415 W. Washington green space was not seen as having the same kind of impediment. That, contended Eaton, exposed the security argument as a fiction.

Mike Anglin (Ward 5) followed up on the point about security by saying that the council was now asking for data from the police chief about resources required to provide security. Eaton continued on the security theme, saying that the underground parking structure itself would need to be policed anyway, with its entrances and exits –  it’s not as if an urban park at that location would need separate and distinct policing resources.

Hieftje then told Eaton that Eaton might not have been as aware of the process that the 415 W. Washington parcel went through as those who had been working on it longer. Hieftje said he did not understand what Eaton meant regarding the Library Lot – there was not a trade-off between 415 W. Washington and the Library Lot, the mayor said. Eaton then reiterated his point that the argument against a downtown urban park based on police policing was, he felt, just a reason to claim that the proposals were not economically viable.

Emergency Moratorium in Historic District Study Area

Ethel Potts urged the council to extend the emergency moratorium associated with the historic district study committee for South Fourth and South Fifth avenues. She reported that the committee had been working as fast as it could and that they had been doing their own work.

Tom Whitaker confirmed what Potts had said about the historic district study committee – Whitaker is a member of that committee, but stressed that he was speaking there just as a member and not on behalf of the committee.

Whitaker advised the council that he’d sent them a message regarding state enabling legislation for historic districts. The legislation allows that projects coming before the city during a period of review can be reviewed by the historic district commission, even before a historic district is established. He pointed out that the Heritage Row project [a proposed housing development on South Fifth Avenue previously known as City Place] was coming before the city’s planning commission on Feb. 18.

There was then some discussion among Whitaker, Briere, and Hieftje about the proper sequencing of review for projects that are brought forward in a historic district. There seemed to be a consensus among the three that the project should first go to the historic district commission, followed by the planning commission, and then city council for final approval. The Glen-Ann project was cited as an example of a project that did not follow that sequence – a lawsuit was filed and eventually settled over that project.

Development Issues

Included in the caucus conversation were some development topics not related to 415 W. Washington or the Library Lot.

The Moravian

Tom Whitaker, who touched on a variety of topics,  also alerted the council to the fact that a project called The Moravian [proposed on East Madison] would be coming before them as a planned unit development. [See Chronicle coverage: "Moravian Moves Forward, Despite Protests"] Whitaker said he did not think that the Moravian rose to the level of what a PUD requires in terms of the public benefit required by city code. LEED certification, Whitaker said, should be a matter of course, and environmental certification was not a public benefit in the sense of the code. A PUD project, he continued, should benefit the use of immediately surrounding parcels. Required elements – like storm water retention – should not count as a public benefit, he said.

General State of Real Estate

Mike Anglin (Ward 5) conveyed the concerns of a resident of Ward 5, which he represents, who was unable to attend the caucus. The resident lives on Jackson Road, where there are hotels. In contemplating the possibility of a hotel built on the Library Lot, the resident wondered, “Who do we want to put out of business?” Anglin noted that hotels are currently only about 50% occupied.

Another concern of the resident, Anglin said, was that there was a lot of empty commercial square footage for rent, in and around downtown Ann Arbor. Mayor John Heiftje replied to concerns about empty space for rent by citing the hour and a half that a PBS television crew had spent with him last year, saying that they had told him they were surprised by the relatively low rates of unoccupied space. They were impressed, Hieftje said, by how well Ann Arbor was doing in comparison to other places they had seen.

Golf Courses

Nancy Kaplan also asked about the city’s golf courses and the municipal service charges, as well as the IT charges, that had been assessed to the enterprise fund out of which they are operated. “Why can’t there be cuts made there, instead of cutting services or selling land to generate more revenue?”

Sabra Briere (Ward 1) offered an explanation of the municipal service charges and IT charges by saying that they were “kind of mythical.” She described them as being included in financial reports for the “enlightenment of council.” But she said it was not a matter of literally taking money from one place in the general fund and putting it in another place in the general fund. “They’re not real charges,” she stressed. “We are assured that they are not real charges, we are told that the charges reflect what it would cost if they were assessed.”

Kaplan said that the charges were confusing. Briere allowed that municipal service charges for the golf courses versus other funds, which had more employees than were accounted for in the golf fund, made the charges for the golf enterprise fund seem “a bit high.” Briere said that efforts to combine IT services with the county should result in some savings and that she expected to see IT charges go down.

Stephen Kunselman (Ward 3) drew on his previous experience serving on the city’s park advisory commission, pointing out that golf is the only recreational activity assigned to an enterprise fund. If golf were handled within the general fund, Kunselman contended, it would not have municipal service charges and people could not point to the golf fund as failing. Golf as a recreational activity had been “set up to fail,” he said.

Referring to Kaplan’s suggestion that attempts be made to cut the amount of useful service charges and IT funds, Kunselman described the situation as “not a matter of cutting – it’s a matter of accounting.” Referring to Kaplan’s objection to the selling of any parks, Hieftje said that he would be surprised if she could find any councilmember in favor of selling a park.

Stephen Rapundalo (Ward 2) revealed that when city administrator Roger Fraser mentioned an unsolicited development proposal at the city council budget retreat in January 2009, he had acted against the advice of members of the council’s budget and labor committee. The committee had become aware of the proposal’s existence prior to the retreat, Rapundalo reported, and when they did, “We said that should be put away on a shelf somewhere. … (but) Roger chose to mention it at the retreat.” Rapundalo also added that while some councilmembers had seen the unsolicited proposal, he had not.

Sabra Briere (Ward 1) recalled a phase in the community conversation about the future of the city-owned Library Lot that predated the January 2009 budget retreat. It was a time when the discussion centered on leaving the top of the parking structure as a temporary surface parking lot while its eventual, more permanent fate was considered – still a possibility, based on Sunday’s caucus discussion.

Besides the Library Lot, residents who attended caucus touched on other issues – the city council’s role in city governance, and the capital improvements plan for the year, which is on the council’s Tuesday night meeting agenda. Council is meeting on Tuesday, rather than its usual Monday schedule, because of the Martin Luther King Jr. holiday.

Library Lot

Remarks by Stephen Rapundalo (Ward 2) and Sabra Briere (Ward 1) about the history of the discussion surrounding the Library Lot’s future came in the context of a conversation with resident Bob Snyder.

Snyder began by saying he was happy that two previously eliminated proposals had been re-included in the interview process. [Chronicle coverage: "Library Lot Math: 6 – 2 + 2 = 6"] He suggested that the two proposals envisioning the parcel as primarily open space were a “sentimental favorite.” That was due, he said, to the sense that the city needed to have a “heart, a center.”

The University of Michigan Diag, Snyder continued, is not such a center. Even as a three-time graduate of UM, he said, he did not feel that the Diag was the heart of the city for him as a townie. The downtown, he concluded, needs to have something worth coming to.

Snyder contemplated the possibility that none of the six proposals would be accepted.

At that, Briere noted that when the concept for the underground parking garage was initially approved, the plan had been that nothing would be built initially. Instead, it would be a surface parking lot with a plaza and a cut-through street – having a surface parking lot was intended to prevent people from thinking it would be a park. The idea was that Ann Arbor would, she said, “sit on it for a while.” Briere and Rapudalo would later identify late 2007 as the relevant timeframe for that concept.

So the question Briere then put to Snyder was this: If the request for proposals (RFP) review committee were to accept none of the proposals, and the space were made into a surface parking lot until such time as something else could be built, how would people feel? Snyder said that for his part, he’d feel “disappointed.” He suggested that instead of surface parking, the area should be planted in prairie grass so that the space at least felt like it was alive.

Then Rapundalo followed up with Snyder on a suggestion Snyder had made about the proposals being considered based on “softer” criteria. How fair is it, wondered Rapundalo, and how can the committee do its job, if the responses to the RFP did not include the minimum baseline of requested information? [Rapundalo chairs the RFP review committee.]

The two proposals that had been initially eliminated, continued Rapundalo, had not talked at all about costs in their responses – what would the construction, concrete and steel costs for what they were proposing. “How can I stack that up against the other four?” he asked.

Rapundalo said, “Dahlmann, at least, should have been able to crank that out. I don’t know why he didn’t. I guess I will have a chance to ask him on Tuesday!” [Dahlmann Apts Ltd. is one of the two open space proposals now being considered. Interviews for those two proposals are scheduled for Tuesday, Jan. 19 starting at 1 p.m. at the downtown library, 343 S. Fifth Ave.]

From the January 2009 budget retreat. On the left is city administrator Roger Fraser with city councilmember Christopher Taylor (Ward 3). They're looking at conceptual drawings for a possible conference center on top of the underground parking garage to be built at the city-owned Library Lot between Fifth and Division streets. (Photo by the writer.)

Rapundalo also clarified how the RFP process had worked so far. The first step he characterized as an evaluation of the administrative requirements: Was there text in all of the right places? All six of the proposals that had met the deadline also met the administrative requirements, he said.

The second step, he continued, was to evaluate the text in each of the sections of the proposal.  The minimum requirement, he said, was for there to be some cost estimates – which the two open space proposals were completely lacking. After this week’s interviews, Rapundalo concluded, the scoring metric would be applied, including the 10% weighting of the financial return to the city.

In describing the proposal from Valiant Partners – which had been presented to Fraser in advance of the RFP process – Snyder alluded at one point during the caucus conversation to a “presentation” that had been made at last year’s budget retreat by that developer.

Both Briere and Rapundalo clarified that there’d been no presentation, but rather that the city administrator, Roger Fraser, had made councilmembers aware of the unsolicited proposal and offered to show it to them. From The Chronicle’s retreat coverage:

The second idea Fraser asked council to reflect on is one also associated by many community members with [Jesse] Bernstein: the idea of a downtown conference center. Holding a large manila envelope, Fraser said that he had conceptual drawings that had been developed by someone interested in seeing the parcel developed – it would sit on top of the proposed Fifth Avenue underground parking garage. He said he had permission from the proposer to show councilmembers the conceptual drawings. For The Chronicle, Fraser declined to identify the parties who had conveyed the drawings beyond saying that it was a developer in New York who had local ties. He said if the idea received traction on council, then the developer might be inclined to disseminate the drawings more widely.

At Sunday’s caucus, Rapundalo seemed to express some frustration that Fraser had taken that path. Rapundalo served then, as now, on the budget and labor committee, which is now simply the budget committee. And he reported at caucus that when the committee had learned of the unsolicited proposal’s existence, some committee members had told Fraser the proposal should be “put away on a shelf somewhere.” Instead, Rapundalo said, Fraser had introduced the topic at the January 2009 budget retreat.

Following up by email with Rapundalo after the caucus, The Chronicle asked for some additional clarification about his caucus remarks. In responding, Rapundalo put the timeframe of receipt by Fraser of the unsolicited proposal in late 2008 – Fraser then apprised the budget and labor committee of the report’s existence. The budget and labor committee, wrote Rapundalo, indicated that “we did not wish to have the matter come forward as it was going to take the focus away from budget discussions and other matters.”

When Fraser had introduced the topic at the budget retreat, Rapundalo wrote, “We were displeased because it countermanded our express direction to the contrary.”

In his emailed response to The Chronicle, Rapundalo noted that some councilmembers had seen the unsolicited proposal – he cited Sabra Briere and Sandi Smith as specific examples – but he had not. He’d not been offered to look at the proposal, nor did he wish to, he wrote. And that, he added, put him in a position now – as part of the RFP review committee – to help evaluate the proposals objectively based on their merits.

In his caucus comments about the Library Lot proposals, Rapundalo also stressed that he did not see the choice as between some big building and open space – open space had been part of the RFP. Briere concurred, saying that by open space the RFP did not mean “a pocket park in front of somebody’s building.”

Rapundalo also clarified that questions by the public for the proposers during the interview process could be submitted via email in advance [librarylotrfp@a2gov.org] or on 3 x 5 index cards at the interviews. They would try to get through as many of the questions as possible, he said.

All interviews and an open house will be held at the downtown library, 343 S. Fifth Ave. The interview times for the Library Lot proposals are:

• Tues., Jan. 19: 1 p.m. Dahlmann Apts Ltd.
• Tues., Jan. 19: 2:45 p.m. Ann Arbor Community Commons
• Wed., Jan. 20: 9 a.m. Jarratt Architecture
• Wed., Jan. 20: 10:45 a.m. Acquest Realty Advisors
• Wed., Jan. 20: 12:45 p.m. Valiant Partners LLC
• Wed., Jan. 20: 2:30 p.m. Beztak Companies
• Wed., Jan. 20: 6-8 p.m. Public open house

Briere remarked that the Library Lot RFP process had been much more open than the last one [for 415 W. Washington], which earned a “Thank you!” from Rapundalo. [Link to city website with .pdf files of all six proposals.]

City Administrator and the City Council

Prior to Stephen Rapundalo’s (Ward 2) remarks about the city administrator’s choice at last year’s budget retreat to introduce the topic of the unsolicited proposal, resident Kathy Griswold had addressed the caucus on the topic of city governance.

Griswold contended that the city council was not holding city administrator Roger Fraser accountable. Instead, she said, the council was doing the work of city staff. The council was allowing Fraser to re-direct their conversation.

As an example, she cited the conversation at the last council meeting on the topic of problems with deer-car interactions, which Rapundalo had raised, along with Tony Derezinski (Ward 2). Fraser had compared the 30 incidents per year in Ann Arbor to the 150 incidents per year in a similar-sized community in Minnesota where he’d previously worked – suggesting that he didn’t think there would be a herd-culling program in the offing.

Rapundalo responded to Griswold by saying he’d interpreted the conversation at the council table differently. He said that he and Derezinski had heard from a constituent who was interested in seeing the city hire someone to cull the deer herd, and that Rapundalo thought it unlikely that that would happen in Ann Arbor.

Griswold allowed that in her remarks about the need to hold the city administrator accountable, she was perhaps “preaching to the choir.” [The caucus choir on Sunday was Stephen Rapundalo (Ward 2), Sabra Briere (Ward 1), and Mike Anglin (Ward 5).]

Capital Improvements Plan

Resident Ethel Potts addressed the caucus, urging them to actually read through and consider the capital improvements plan (CIP), which is on the council’s Tuesday meeting agenda. She asked them to make sure that they could stand behind all of the line items in the plan.

Potts told councilmembers that the solid waste capital improvements associated with single-stream recycling had been like a “punch in the stomach” for her. She characterized the move to single-stream as a setback, saying that Ann Arbor residents were willing to separate their recycleables and that she’d need to resist her natural inclination to continue to do so.

Asked to clarify the status of items in the CIP, Stephen Rapundalo (Ward 2) said that it was a plan or a guide – a set of priorities – but was not authorization for the expenditures listed. That would need to come separately from the council. Sabra Briere (Ward 1) confirmed that the CIP is a wish-list as opposed to authorization.

Briere noted that some items appear in the plan year after year and are not implemented – bridge repair, for example. [Items in the plan are categorized as desireable, important, or urgent.] The total funding specified for all of the “funded” projects for the plan, which covers 2011-2016, is $162 million.

Tangerine Tower is not an alternate proposal for the Library Lot development. But in providing an illustration to accompany an article, sometimes you go to press with the fruit you have, not the fruit you wish you had.

A committee appointed to review the proposals submitted for the city-owned parcel, known as the Library Lot, recently dropped two of those proposals from consideration. [Chronicle coverage: "Two Library Lot Proposals Eliminated"]

The two proposals – one from Ann Arbor residents Alan Haber and Alice Ralph, and the other from a local developer, Dahlmann Apartments Ltd. – both envision the top of the underground garage primarily as open space.

At Sunday’s city council caucus, seven supporters of an open-space use for the Library Lot outnumbered the four councilmembers who attended: Sabra Briere (Ward 1), Stephen Kunselman (Ward 3), Mike Anglin (Ward 5) and mayor John Hieftje.

Conversation at caucus was devoted almost exclusively to the RFP (request for proposals) process and dissatisfaction with its preliminary outcome. On the council’s Monday night agenda is a resolution sponsored by Briere that seeks – “delicately,” in Briere’s words – to address some of that dissatisfaction.

Briere likened the winnowing down of the alternatives in advance of public participation to asking someone if they’d like an apple or a pear – you might get a different answer, she said, if you ask, “What kind of fruit would you like?” Maybe, she said, people want grapefruit.

Briere’s Resolution: Directing Proposers

Sabra Briere’s resolution that will be considered by the council on Monday night is a directive to the proposers who responded to the city’s Library Lot RFP. Its text reads:

Whereas, The RFP advisory committee is charged with making a recommendation to the entire City Council about the proposals submitted in response to the RFP involving the “Library Lot”;

Whereas, The City Council has the right to accept any proposal or reject all proposals; and

Whereas, The City Council should therefore have equivalent information about all six proposals;

RESOLVED, That City Council requests that any proposers eliminated by the RFP advisory committee submit all relevant financial information about their projects to the City Council at their earliest convenience; and

RESOLVED, That any proposers eliminated by the RFP advisory committee be prepared to respond to questions from the City Council in advance of City Council’s consideration of any recommendation the RFP advisory committee may make.

Asked at caucus to explain the rationale behind her resolution, Briere described it as: “This is me being delicate.” It was a way, she said, to get what she wanted, stepping on as few toes as possible.

What she wanted, Briere said, was all the information about all the proposals. She said that up until the last Sunday night caucus – when mayor John Hieftje had stressed that the city council could bring back any proposals it wished to – she’d been under the impression that the council would have to accept or reject the RFP committee’s recommendation. [Chronicle coverage: "Mayor: 'Council can bring back any proposal it wants.'"]

The mayor’s revelation at the last caucus, Briere said, made clear that the council would have the freedom to explore other proposals not recommended by the review committee. But if the council did not have equivalent information on all of the proposals, she said, it would be in no position to make a decision other than up or down on the committee’s recommendation. [City website with .pdf files of all six proposals]

The sense in which Briere’s resolution is intended to step on as few toes as possible is that it does not direct the RFP committee to undertake any action or to undo any of its work to date. Briere noted that she felt it was important as a general principle that committees appointed by the council be given independence to do their work, without interference from council. That did not mean, she cautioned, that the council needed to abide by any committee’s recommendation.

The resolution – by directing the proposers to take an action, as opposed to the committee – is intended to elicit information from eliminated proposers that might have come to light in the course of the next steps of the process. Those next steps include in-person interviews on Jan. 20, which allow 90 minutes for each of the four remaining proposals, during which time questions from the public will be entertained.

If the resolution does not pass, Briere said, then proposers whose projects had already been eliminated, or that were eliminated at future points along the way, could still expect questions from her, if not from the council as a body.

Objections to the Process to Date

It is the exclusion of the two open space proposals in the next steps of the process that residents attending Sunday night’s caucus criticized. The criticisms at caucus mirrored many of those cited in a letter forwarded to the council from several citizens – some of those who signed the letter were in attendance at caucus.

Chief among the objections was that there was an expectation – based on the resolution passed by council establishing the RFP review committee – that the public would be able to weigh in before any decisions on the proposals were made. At caucus, the decision by the committee first to eliminate two of the proposals, and then provide the public with an opportunity to react, was described as “backwards.”

Another objection, raised both in the letter and at caucus, is the membership of the RFP committee. There is no “citizen at large” on the committee who is not also a member of council, city staff, or an appointed city board or commission. Caucus attendees emphasized that they did not question the qualifications of Sam Offen – who’s on the RFP committee and also serves on the city’s park advisory commission – and allowed that “he’s a regular person.” But he was not a citizen who had no connection to other city entities, they said.

At caucus, mayor John Hieftje said that membership on the committee by a park advisory commission member had been seen as useful in light of the fact that the council had expected there would be proposals that included predominantly open space.

Centrally Located Park versus Greenway?

In the Sunday caucus discussion, mayor John Hieftje said that in weighing the merits of a park for the top of the Library Lot, he saw a connection between such a park and the city’s financial ability to realize the vision of a greenway along Allen Creek: “I can’t for the life of me figure how we can maintain a park [at the Library Lot] and a greenway.”

The choice between a centrally located park versus a greenway was rejected by one caucus attendee as an artificial one. She told the mayor that he should not connect the two, based on her support of both. Another caucus attendee suggested that the choice as yet “does not appear to be either-or, but rather neither.”

Stephen Kunselman (Ward 3) suggested that until the railroad came to the table – which they had not yet – the greenway was unlikely to happen.

When Hieftje expressed concern about security costs associated with a park on top of the underground parking structure, Mike Anglin (Ward 5) offered this solution: “You gate it!”

Vision for Ann Arbor: Where’s Its Heart?

A thread that ran through much of the caucus conversation was the community’s vision for Ann Arbor. When one caucus attendee asked that councilmembers individually and as a group articulate their overall vision for Ann Arbor, mayor John Hieftje noted that he’d done that before in response to a question from The Chronicle and that it could be found online. [Hieftje's vision for Ann Arbor]

Some of that discussion on vision concerned where the “center of Ann Arbor” is. Stephen Kunselman (Ward 3) and Hieftje – who both grew up in Ann Arbor – pointed to the University of Michigan Diag as a natural place where the community gathered. Sabra Briere (Ward 1) allowed that when she’d moved to Ann Arbor in her early 20s, the Diag served that purpose. But she felt its role as a central gathering place for Ann Arbor – as opposed to the university community – was less and less significant.

Caucus attendees saw the Library Lot as an opportunity to define a “heart” of Ann Arbor, which it had not had since the old county courthouse was torn down and a new one built.

Hieftje noted that in a video produced by Kirk Westphal – who serves on the city’s planning commission – people were asked to identify the center of Ann Arbor and that people tended to point to the Main and Liberty intersection. [Link to that video, now available on YouTube: "Insights into a Lively Downtown"]

Public-Private Partnership?

Another theme that ran through the caucus discussion was the question of public-private partnerships – which some of the hotel/conference center proposals would entail.

Stephen Kunselman (Ward 3) was not bashful at caucus about his opposition to public-private partnerships, and proposed instead that the question of what goes on top of the underground garage could be settled without an RFP process. An alternative that he described would have a public process to determine how much of the area would remain public space and where that space would be located. Then, he said, you draw a line around that, and the rest is available for sale and development through the regular site planning and review process.

The idea of essentially fixing the location of buildable space above the parking structure was also mentioned at caucus by Sabra Briere (Ward 1), who described how other communities had built underground parking garages, placed supporting foundations in a way that dictated where things could be built, and then allowed proposals to be made under those constraints.

As for public-private partnerships and RFP processes for city-owned property, Briere observed that the city did not have a great track record – citing William Street Station (the old YMCA lot), 415 W. Washington, and Village Green as examples. The developer of William Street Station has filed a lawsuit against the city for canceling the project, no recommendation for one of the three proposals was ever rendered by the city’s RFP review committee for 415 W. Washington, and Village Green may or may not happen, depending on the developer’s ability to get financing.

But residents still stirred the pot – on the issue of extended hours of parking enforcement as well as development proposals for the Library Lot.

The parking issue is part of a more complex resolution that the council will consider on Monday night, but possibly postpone, based on comments at caucus made by Mayor John Hieftje. A separate, but related item on the agenda calls for the purchase of parking equipment for installation on Wall Street at a cost of $87,000.

Receiving no discussion at the caucus was the second reading of the resolution that would reduce the Percent For Art program to a Half-Percent for Art program for the next three years. The resolution passed on its first reading at the council’s previous meeting.

Also receiving no discussion was the first project to be funded through the city’s public art program – a sculpture by German artist Herbert Dreiseitl proposed for for installation outside the new municipal center currently under construction. Council had been expected to have the approval of the Dreiseitl project on its agenda in November, but that expectation then shifted to the Dec. 7 council meeting. It was further shifted to the meeting on Monday, Dec. 21. And now it appears that the Dreiseitl vote will not be taken until sometime in 2010. [Update: The Dreiseitl project was added to the agenda at just after 11 a.m. Dec. 21, 2009.]

Extended Parking Hours

Bob Snyder, president of the South University Neighborhood Association, appeared at the caucus to convey his opposition to the installation of parking meters in neighborhoods near downtown. That meter installation is connected to a revenue generation plan that was a part of the FY 2010 budget adopted by city council in May 2009. Monday’s agenda item approving purchase of some parking equipment is part of that plan.

At the caucus, Mayor John Hieftje contended that the parking meter installation, which the council had approved and adopted, had caused the council to “scratch our heads” about how much sense it made.

Councilmember Sabra Briere (Ward 1), who will not attend the council’s Monday meeting due to travel plans, reminded caucus attendees that the purchase of the parking equipment has been on the agenda at two previous meetings and that the council had postponed its consideration, because Sandi Smith (Ward 1) had indicated she’d be bringing a more comprehensive alternative. Smith has now done that in the form of the Monday resolution, which would provide revenues from the Fifth and William surface parking lot to the city, extend meter enforcement to 10 p.m., and discontinue the city’s plan to install additional meters. [Chronicle coverage: "City-DDA Parking Deal Possible"]

Snyder did not weigh in for extended meter enforcement hours, even though the issue has been framed by the council resolution as trading longer enforcement hours for installation of additional meters – which Snyder opposes. Said Snyder: “There’s nothing better for dessert than a $20 ticket!”

When Hieftje suggested that one obstacle to implementing extended enforcement hours was staff to enforce the meters, Snyder quipped: “I could use a part-time job.”

Hieftje revealed at caucus that the South University Area Association State Street Area Association, a merchant group, had sent an email saying that they were “not opposed” to the extended meter enforcement.

But the mayor also indicated that email communications he’d received in general were overwhelmingly against the extended meter enforcement, and hinted that council would not act Monday on the question.

A question about “bagged meters” and enforcement hours was raised by Nancy and Harvey Kaplan, the other two residents at caucus: Does the reservation of the space afforded to the purchaser of the meter bags extend 24/7 or does it end with meter enforcement? [The orange bags, which are placed over the meter heads and indicate that parkers will be towed, are administered by the Downtown Development Authority. Typical uses include special event street closures, or construction sites where contractors need guaranteed space for unloading materials.]

The Kaplans’ question couldn’t be answered by Hieftje, Briere, or Mike Anglin (Ward 5). [The Chronicle will try to follow up on that as resources allow.]

Library Lot RFP

The majority of the discussion at caucus dwelt on an issue that is not on the council’s Monday agenda: the recent decision of the Library Lot RFP (Request for Proposals) review committee to eliminate two of the six proposals. [Chronicle coverage: "Two Library Lot Proposals Eliminated"]

Nancy Kaplan lamented the fact that the two proposals that called for a majority of the space above the underground parking garage to be open space had been eliminated from further consideration. She called the committee’s intention to now hire a consultant to evaluate further the remaining four proposals “backwards” – the consultant should evaluate all of the proposals, she contended.

Kaplan wondered if Hieftje, as the mayor, could exert some pressure on the committee to consider the open space proposals and “show some leadership.” Hieftje responded by saying that he did not want to tell the committee how to go about its work, but that the council could choose to consider all of the proposals. In this the mayor was repeating a sentiment he’d expressed at the council’s Nov. 15, 2009 caucus. At Sunday’s caucus, he suggested that there were three votes on council in favor of hearing the open space proposals in the room right then – Briere and Anglin did not disagree.

Hieftje’s main concern about a predominantly park use of the space was related to maintenance and security – not just balanced against existing parks, but also against the future parks planned in connection with the greenway.  He wondered if the maintenance commitment to a centrally-located park would put off  the city’s ability to develop a greenway [along Allen Creek] for another 20 years.

Hieftje expressed his fondness of the idea of an ice-skating rink – included in one of the open space proposals for the lot – and recounted the experience of his youth in Ann Arbor skating on the ad hoc outdoor rinks formed by the city in various parks. But he expressed reservations about the amount of city investment required for the ice-rink proposal, which was made by Dahlmann Apartments Ltd. Dahlmann offered $2.5 million for construction, but did not identify funds for ongoing maintenance.

With respect to the need for maintenance, Briere pointed out that most of the maintenance for New York’s Central Park is paid for by a nonprofit group [Central Park Conservancy]. She suggested that a similar effort – perhaps coordinated through the Ann Arbor Area Community Foundation – might allay some concerns about future funding for upkeep and maintenance.

Regarding one of the other six proposals – for a conference center – Briere wondered whether the conference center proposal actually reflected a future where travel budgets would be curtailed and “virtual conferences” would be more common. Resident Harvey Kaplan also wondered if the newly acquired Pfizer space by the University of Michigan might be better suited for adaptation to a conference center-type use. Hieftje noted that there was a huge dining facility on the Pfizer property.

Anglin said he’d like to see an analysis of the financial benefit that the open space proposals would bring, something he felt had not been given due attention.

Residents who attended the caucus expressed concerns about probable firefighter layoffs, possible threats to city parks, and a Monday meeting agenda item approving $895,000 for an accounting system overhaul. In responding to residents, councilmembers mentioned an idea that Mayor John Hieftje had briefly floated at the council’s budget retreat: an across-the-board wage cut of 3% for all city employees.

Besides the accounting system overhaul, the other Monday meeting agenda item residents spoke about was the council’s “acceptance” of the Huron River and Impoundment Management Plan. Representatives of the Huron River Watershed Council encouraged the council to accept the plan. That discussion led to the topic of the city’s Percent for Art program and its legal status. The council has an item on its Monday agenda to reduce the percentage reserved from 1% to a 0.5%.

On the council side, the caucus was attended by Hieftje, Sabra Briere (Ward 1), Mike Anglin (Ward 5), Stephen Rapundalo (Ward 2) and Stephen Kunselman (Ward 3).

Firefighter Layoffs: Negotiations, Safety

Karen Sidney addressed the caucus on a range of topics, including the pending layoff of 14 of the city’s 94 budgeted firefighter positions. At the budget retreat the previous day, city administrator Roger Fraser and Mayor John Hieftje had maintained that the firefighters union had been unreceptive to a proposal to accept a wage cut in exchange for preserving jobs.

At the caucus, Sidney said she’d heard that the wage cut proposed to the union had been 25%, which she said was not a reasonable proposal.

Sidney also suggested that the city’s plan to provide fire protection services in the face of firefighter layoffs would have a negative impact on the fire department’s ability to rescue people from burning buildings. Based on the safety protocol for firefighters described by safety services area administrator Barnett Jones at Saturday’s budget retreat, firefighters cannot enter a burning building without a partner, and without having two coordinating staff remaining outside – a total of four people are required on scene.

Based on the standard staffing of a three-person crew for a truck, and Jones’ description of planned delays in sending a second truck, Sidney reasoned that this would have to mean delays in the fire department’s ability to send firefighters into burning buildings to rescue people trapped there.

Across-the-Board Wage Cut for City Staff?

Nancy Kaplan asked councilmembers if – in the spirit of everything budget-wise being on the table for consideration – the city administrator’s salary was also on the table. Sabra Briere (Ward 1) replied that she didn’t mean to seem defensive about it, but that the city administrator, Roger Fraser, had not had a raise in at least three years.

That led Stephen Rapundalo (Ward 2) to mention that the mayor had proposed at the budget retreat a 3% across-the-board pay cut for all city employees – something he said had not been reported in the newspaper account of the retreat. Asked for clarification at caucus about whether this was a serious proposal, or just an idea, Hieftje said that it was a proposal and that there was support on the council for it – but that council didn’t have control to make it happen. That was something the unions would have to agree to do, he said.

The 3% corresponds to concessions made this year by unions representing most of Washtenaw County government employees, but in that case it reflected forgoing a contracted 3% wage increase. [Chronicle coverage: "AFSCME union concessions help, but other issues remain"] Hieftje said he didn’t have the exact dollar figure the move would save, but would have the number by Monday’s meeting.

Asked if the council might implement the 3% cut for at least the non-union employees, Hieftje said that implementing the wage cut for just that group would not have as strong an effect. Resident Karen Sidney pointed out that the city had 190 non-union employees.

In an earlier comment, Sidney had noted that historically, union jobs at the city had been cut more than non-union jobs. In 2002, she said, there were 205 non-union jobs compared to 190 now, for a reduction of 7.5%. In contrast, she said, 696 union jobs in 2002 have decreased to 571 union jobs today, for an 18% decrease.

Accounting System Overhaul

Given the budget crunch, Karen Sidney asked the council to delay spending $895,000 to overhaul the city’s accounting system – an item that’s on Monday’s agenda.

The overhaul includes new software, management of its installation, and programmers to move the legacy system, which is based in part on COBOL, an older programming language. The business case for the expenditure provided with the council’s meeting packet projects a return on the investment to be realized in two years and eight months. The new system is seen as easing use of the accounting system for people who don’t have a deep understanding of accounting, for increased transparency of the system.

Sidney pointed out that the business case also contains a description of risks associated with the project, which include budget overruns and the possibility of project failure. She concluded that the expenditure should be delayed.

In a later discussion, Sidney asked that the monthly financial reports that Stephen Rapundalo (Ward 2) said the budget and labor committee received also be posted on the city’s website. Mike Anglin (Ward 5) reported that such reports had been very helpful for members of the park advisory commission – a body on which he represents the city council.

Parks and the Huron River and Impoundment Management Plan

Gwen Nystuen, who is a member of the city’s park advisory commission, appeared before the caucus saying that she’d come because she’d been alarmed about what she’d read in Sunday’s paper about possible cuts to the park program. Stephen Rapundalo (Ward 2) said that what had been printed was a verbatim presentation of the PowerPoint slides shown at the budget retreat, but stressed that the context of the slides was to provoke the council to rethink everything. There was, Rapundalo said, little appetite on the council for selling parks.

Glenn Thompson appeared at caucus to express his support for keeping the Argo Dam in place. He allowed that there’d likely be a reduction in the water temperature by a half degree or so, but that this benefit to the river needed to be balanced against the potential for hydropower to be generated by the dam. The electricity that could be generated by the dam, he said, would save 1,000 tons of CO2 released into the atmosphere, when compared to the same electricity when generated by a coal-fired plant.

Laura Rubin, the executive director of the Huron River Watershed Council, came to caucus to make the case that the Huron River and Impoundment Management Plan committee had not been “stacked,” as some in the community have contended. She said that over the course of three years, the city’s environmental commission had engaged in a painstaking process of identification of stakeholders. It was important to have a river plan, she told the council, just as it was important for the city to have a transportation plan, a parks plan, and a city master plan.

Rubin said she hoped the council would “approve” the plan and that it would not languish. This prompted Stephen Rapundalo (Ward 2) to stress that the council would not be “approving” the plan, but rather “accepting” it. That is, there was no implication attached that the recommendations would be implemented. Stephen Kunselman (Ward 3) suggested that he wasn’t sure that “accept” was the right word either, saying that “receive” might be better. In any case, Rapundalo said there was simply not money to commit to anything in the HRIMP at this time, and the same sentiment was echoed by Sabra Briere (Ward 1).

Scott Munzel introduced himself as a Ward 5 resident of Ann Arbor, who also serves on the board of the watershed council. He noted that the purpose of the HRWC was to advocate for the river and that it was thus fitting and proper for its executive director, Laura Rubin, to weigh in on the Argo Dam question. She did so, he said, with the support of the board.

If the council decided to leave the dam in place, he said, he hoped that they would take seriously the question of how much it costs to maintain, which he said was around $50-60,000 per year. Currently, he said, that is paid out of the drinking water fund, which was not just inappropriate, but possibly even illegal, based on the Bolt v. City of Lansing case. That case involved a stormwater fee, which in the view of the court amounted to a tax. The court established criteria distinguishing a fee from a tax as follows [from the Michigan Municipal League summary]:

1. a user fee must serve a regulatory purpose rather than a revenue-raising purpose;
2. a user fee must be proportionate to the necessary costs of the service; and
3. a user fee must be voluntary – property owners must be able to refuse or limit their use of the commodity or service.

Responding to Munzel, Mayor John Hieftje noted that the intention was to rectify the funding source issue when the next budget is prepared.

Stephen Kunselman (Ward 3) was curious to know from Munzel, who’s an attorney, if he had any thoughts on the legality of the city’s Percent for Art program in the context of the Bolt v. City of Lansing case. Munzel did not offer a legal opinion on the matter.

The Percent for Art program is on the council’s agenda in the form of a resolution brought forward by Sandi Smith (Ward 1) to reduce the percentage reserved for public art from 1% to 0.5%.

Kunselman followed up on Munzel’s comments on the advocacy role of the HRWC by saying that the advocacy made him a little “squeamish” given that the city of Ann Arbor paid $10,000 a year to the HRWC as a member organization. Stephen Rapundalo (Ward 2) then asked if HRWC was a 501(c)(3) or a 501(c)(6) organization. Rubin replied that it was a 501(c)(3) – the nonprofit status that allows contributions to be deducted from income tax.

Rapundalo’s response to Rubin’s answer was: “Well, then you can’t lobby.” He cited his own experience setting up a parallel 501(c)(3) organization to a 501(c)(6), saying that he was well aware of what was allowed under each organization.  Rubin countered by saying that the HRWC had relied on their legal counsel as far as what their advocacy role could be and that the issue had been looked at in detail. [While there are contraints on 501(c)(3) organizations in how they lobby, they are allowed to do so: NP Action]

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

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

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

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

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

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

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

Design Guidelines

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

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

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

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

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

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

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

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

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

A2D2 Zoning

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

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

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

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

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

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

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

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

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

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

Underground Parking Garage: What Goes on Top?

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

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

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

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

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

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

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

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

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

Cell Phones

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

Single Stream Recycling

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

HRIMP: Dam-in/Dam-out

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

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

Parking Meters

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

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

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

Kunselman’s Questions

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

PH-1 A2D2 Design Guidelines

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

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

DS-6 Contracts for West Park Improvements

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

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

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

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

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

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

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

The Attorney shall:

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

Piezometer installed in mid-September along the earthen berm separating the Argo Dam headrace from the river. (Photo by the writer)

But those speakers were supported by the presence of almost two dozen others who attended the regular Sunday evening affair, to make clear that they also supported a resolution on the dam – which was added to Monday’s Oct. 19 agenda on Friday, Oct. 16.

Monday’s resolution, which is sponsored by Stephen Rapundalo (Ward 2), Marcia Higgins (Ward 4), and Sandi Smith (Ward 1), expresses the intent of city council to keep the dam in place. [Text of the resolution]

At caucus, one of the voices of dissent on the resolution belonged to Laura Rubin, executive director of the Huron River Watershed Council. She told the three councilmembers present – Stephen Rapundalo (Ward 2), Sabra Briere (Ward 1), and Mike Anglin (Ward 5) – that there’d been an expectation that the city council would follow the example of the city’s Park Advisory Commission and the Environmental Commission by holding a formal public hearing on the vote.

The resolution on Monday’s agenda does not include a public hearing.

After the caucus concluded, Rubin told The Chronicle that the expectation of a city council public hearing was based on a hearing that had been planned for July 6, 2009, but that was canceled when the council decided to ask the Michigan Department of Environmental Quality for more time to decide. We had a look at The Chronicle archives to verify that contention.

Other caucus topics addressed by residents included a crosswalk to be installed at the intersection of Waldenwood and Penberton drives and a request for an update on the East Stadium bridges. Council will consider a resolution on Monday to follow the advice of an outside engineering consultant to proceed with removal of bridge beams supporting the southern lanes, which are currently closed to traffic.

Was a City Council Public Hearing Planned for Argo?

The Ann Arbor city council agenda for July 6, 2009 does not reflect a public hearing on Argo. But if the public hearing had been canceled before the agenda was initially posted, there would be no record of that on the document. So, to determine if there’d been discussion of a July 6, 2009 public hearing, we submitted a query on The Chronicle’s recently upgraded search tool – which uses Google Custom Search: “July 6 ” Argo.

That yielded  references by two different city staff members at two different public meetings. From The Chronicle write-up of an Energy Commission meeting in June, “Hydropower at Argo Dam?“:

[Matt] Naud [environmental coordinator for the city] characterized his presentation to commissioners as “food for thought.” He outlined a timeline for next steps that includes a working session on Argo that city council will hold an hour prior to its June 15 meeting, starting at 6 p.m. (The council meeting starts at 7 p.m.) Council will hold a public hearing on whether to keep or remove the dam at its July 6 meeting, he said [emphasis added].

And here’s a comment added to an article on an Environmental Commission meeting in May,”City Council to Weigh Mixed Advice on Dam“:

Of possible interest to commenters on this article is this announcement by the city’s director of community services, Jayne Miller, at yesterday evening’s [June 1, 2009] city council: The June 15 council meeting will be preceded by a work session on the Argo dam issue. That work session is scheduled for 6-7 p.m.

Miller also indicated that council’s formal public hearing on the Argo dam issue is currently planned for July 6, 2009 [emphasis added].

At its June 15 work session, the city council opted to ask the Michigan Department of Environmental Quality for additional time to decide the fate of Argo Dam, so the public hearing and vote were put off. In early August the MDEQ gave the city of Ann Arbor a response to its request for more time: Close the headrace and dewater it by November. In September, city staff developed a plan to respond – which included the possibility of contesting the MDEQ order, something that’s now begun, with the law firm Bodman engaged by the city as legal counsel.

The earthen embankment at Argo sloping upward from left to right. The river is to the left; the headrace waters held back by the embankment are to the right. (Photo by the writer)

Older History and Background

Before diving in to developments of the last month or so, it’s worth reviewing very briefly how the city came to this point. Where did the idea come from to remove the dam, and who wants it to stay? The possibility of removing the dam has been attached historically to maintenance issues associated with the earthen berm adjacent to the concrete and steel structure, both of which the MDEQ subsumes under the term “Argo Dam.” [For the sake of coherent discourse, it's worth maintaining a distinction between "earthen berm" and "concrete and steel structure" when only one of those is intended.]

The idea of removing Argo Dam and returning the section of the Huron River between Barton Dam and Geddes Dam to a more natural riverine state has been supported by the Michigan Department of Natural Resources on grounds of water quality and quality of the fishery. Locally, the Huron River Watershed Council has supported removal of Argo Dam for environmental reasons.

If around $300,000 needed to be invested in the repair of toe drains in the earthen embankment, the thought was: Why not contemplate the removal of Argo Dam to avoid any future maintenance costs, plus reap environmental benefits? But that view was challenged. In addition to disputing the merits of the environmental arguments, local opposition also focused on the benefit of Argo Pond to the rowing community – high school and college teams, as well as individual rowers, use the pond heavily.

As Sunday’s night’s caucus demonstrated, however, opposition to the removal of Argo Dam is not limited to the rowing community. Mark Hodesh, owner of Downtown Home & Garden, also appeared at caucus to oppose the dam’s removal: “I really like that pond!” he said. Hodesh recalled that his parents took him to swim there in the ’40s and ’50s and that it served as a northern gateway to the city.

A timeline on Argo Dam from previous Chronicle coverage: “MDEQ to Ann Arbor: Close  Argo Millrace“:

• 2001 Inspection report from MDEQ notes problem with toe drains in earthen embankment.
• Nov. 18, 2004 A letter from the MDEQ references the 2001 inspection report that first pointed out problems with toe drains: “The inspection report for the Argo Dam identifies problems that may threaten its safety. Specifically, the toe drains along the downstream side of the raceway canal embankment are failing. The toe drain failure is complicated by the dense growth of trees and brush on the raceway embankment and by the inability to block the flow of water into the raceway during an emergency. The toe drain system should be repaired immediately, and a means of blocking flow into the raceway canal should be devised as soon as possible.”
• March 2006 The city’s Environmental Commission creates the Huron River and Impoundment Management Plan (HRIMP) committee
• Sept. 12, 2007 The assessment of the dam’s condition and recommendations in the dam safety report includes: “The principal spillway and main embankment of the Argo Dam are in good condition. However, the headrace embankment is in poor condition. The dam has adequate spillway capacity to pass the design flood. The following recommended actions are listed by priority. (1.) Submit a copy of the contingency plan to block off flow from the millrace by February 29, 2008. (2.) Remove overhanging and dead trees from the headrace embankment by July 31, 2008. …”
• Dec. 26, 2007 A letter from the DEQ includes the following: “The headrace embankment of the Argo Dam is in poor condition, and the toe drains are not totally functional. This has been described in past reports, and you have received a permit to perform repairs to the toe drain system. It is our understanding that this work has not been done yet, and discussion is ongoing regarding the future disposition of the dam.”
• March 24, 2008 A letter from the DEQ includes the following: “One of the recommendations of this report was that a contingency plan be developed to rapidly shut off flow to the headrace in the event of concerns over the headrace. You provide this contingency plan to this office in your letter of February 21, 2008. The contingency plan lacks detail on how an actual or impending failure of the headrace embankment would be determined. … [P]lease be reminded that this headrace contingency plan is intended to be a short term plan to alleviate potential impacts caused by a headrace embankment failure. It does not address the significant structural concerns with the headrace embankment.”
• January-February 2009 City staff conduct a series of public meetings. [Chronicle coverage of a public meeting at Forsythe Middle School.]
• April 28, 2009 The final version of HRIMP report is finished. Key conclusion: “The decision at the Argo area comes down to one of community preference. Both options will require significant investment of capital and operation and maintenance dollars in addition to staff time.”
• May 19, 2009 The city’s Park Advisory Commission recommends on a narrow 1-vote margin to retain the Argo Dam. [Chronicle coverage of PAC Argo Dam discussion.]
• May 28, 2009 The city’s Environmental Commission recommends removal of the dam. [Chronicle coverage of EC Argo Dam discussion.]
• June 15, 2009 At a work session conducted by the city council, the apparent consensus was that staff should be directed to identify questions that would need to be studied for dam-in and dam-out scenarios and to ask DEQ for additional time.
• July 16, 2009 Ann Arbor sends a letter to MDEQ outlining specific areas of study for the dam-in and dam-out options, and asks for an extension of the deadline until April 2010.
• Aug. 6, 2009 MDEQ sends a letter in reply granting the extension, but ordering the closure and dewatering of the headrace.

Additional Chronicle coverage: “Huron River of Data” and “Dam Questions Dominate Caucus.”

More Recent History: Ann Arbor’s Response to the MDEQ

At their Sept. 8 regular meeting, the city council received an update from city staff on their planned strategy for responding to the MDEQ order, which includes closing the headrace, dewatering it, and making a decision on the dam-in/dam-out question by spring 2010. There’s a December 2010 deadline for repairs if the city makes a dam-in decision, or a December 2012 deadline for removal if the city opts for dam-out.

During her Sept. 8 update, Sue McCormick, director of public services, conveyed a fairly defensive posture with respect to the MDEQ order. The MDEQ had, she said, inappropriately conflated two separate issues: (i) the technical issues with respect to public safety, and (ii) the longer-term fate of the Argo Dam. She cast doubt on the urgency with which the toe drains needed repair, saying that of the 30 toe drains, the 10 that were visible were in good shape.

In her briefing, McCormick said that city staff intended to request a meeting with the MDEQ to resolve the technical issues in dispute, and if they were not able to convince the MDEQ to revise its order, they planned to file a contested case – which is a formal appeal.

The city has now submitted at least the initial filings for that appeal and has retained Bodman as legal counsel for that purpose.

Schematic provided by Joe O'Neal, whose construction company built the concrete and steel dam, showing a possibility for a redesign of the headrace embankment. Christopher Taylor (Ward 3) is expected to suggest amendments to the Argo Dam resolution that would explicitly mention the possibility of a redesigned embankment that would eliminate the need for a portage. (Image links to higher resolution file)

One of the ways that McCormick said they hoped to convince the MDEQ that the earthen berm was not in danger of failing due to the toe drains was to ask Stantec – an engineering firm that the city uses for support services – to install piezometers (test wells) on the berm to measure the water pressures at a cost of around $20,000. [City council will be considering a resolution on Monday to award a professional services contract in the amount of $250,000 to Stantec to cover a wide range of future services.] Key would be to convince the MDEQ to consider any data from the piezometers as relevant to the technical discussion.

On Sept. 17, the city began installing piezometers. [Chronicle Stopped.Watched item: "Argo"]

The city’s webpage on Argo Dam chronicles the outcome of those initial meetings with the MDEQ, which took place Sept. 24, 2009. Salient in that report is the MDEQ’s agreement with the city’s position that if the condition of the toe drains could be addressed through some other means – like a redesign of the berm to give a continuous flow for canoeists down the headrace, eliminating the portage – then no timeline for a dam-in/dam-out decision needed to be enforced:

MDEQ indicated that they included item #4 in the order (item #4 says removal must be complete by 2012) as recognition that in the event the City chooses dam removal as the alternative offered to address the embankment deficiency, they wanted a date certain for dam removal to occur. MDEQ agreed that if the deficiency is addressed in another manner, there is no deadline for a decision on dam removal or any subsequent required schedule for dam removal [emphasis added].

Why a Decision Now?

At Sunday’s caucus, Stephen Rapundalo (Ward 2), who is one of three sponsors of the resolution to be considered on Monday night, defended the Friday addition of the Argo Dam item as within the council’s protocols. In response to the suggestion that some other councilmembers might not have known about the resolution, he cited the late addition of a resolution to appoint a historic district commitee, which he had not known about until it appeared on the agenda the day of the council’s meeting. [Chronicle coverage of the meeting: "Demolition Moratorium for Two Block Area"]

Rapundalo also explicitly rejected the speculation that the timing of the resolution was motivated by anything other than the fact that there was no definitive scientific evidence that the dam needed to be removed, and that there was an interest in the city resolving its dispute with the MDEQ in a fiscally responsible way. Filing contested orders was not, he said, a good way for two government agencies to resolve their issues.

Asked what other motivations and speculations he was alluding to, he reported that there’d been emails contending that the resolution had been put on the agenda to take advantage of Mayor John Hieftje’s possible absence on Monday – Rapundalo said that they’d become aware of that possibility only after the resolution was added. Further, it was not certain that the mayor would be absent.

[Editorial aside: Hieftje, who began serving in 1998 on the board of directors of the Huron River Watershed Council, and is currently an alternate member of that body, is seen as at least a mild supporter of the dam-out option. At a recent meeting on the local economy, Hieftje took a third-person view of the situation, when he said that he did not think the Argo Dam would be removed. It reflects the difficulty of his political position. On the one hand, Hieftje's affiliation with HRWC and his interest in staking out the pure environmental ground are an argument for him to support the dam-out option. On the other hand, there's a general consensus that public sentiment is greater for the dam-in option. If the vote on the question happens in his absence, his voting record won't reflect any position on the issue, which gives him maximum political flexibility in the future. So any possible maneuvering based on Hieftje's presence or absence at the meeting could be analyzed as providing Hieftje with a way to avoid voting at all, but could not reasonably be seen as a way to avoid Hieftje's opposition to the resolution. After all, there's nothing to fear from the additional "no" vote the mayor might cast – successful passage of the resolution depends only on getting six votes in support. It's an issue that will be moot if the mayor is able to attend Monday's meeting, or if the decision is postponed until a later time when he's present.]

In addition to rejecting the idea that the mayor’s presence or absence had anything to do with the timing of the resolution, Rapundalo ruled out the possibility that the timing was motivated by an interest in shoring up Marcia Higgins’ re-election chances. Higgins’ opponent in the Ward 4 race is Hatim Elhady, who supports keeping Argo Dam. The success of two candidates in the August Democratic primary – Mike Anglin in Ward 5 and Stephen Kunselman in Ward 3 – has been ascribed partly to their support of keeping Argo Dam in place.

Questions to be Answered

In council deliberations on Monday, the focus could be on the the issue of process as opposed to the merits of the dam-in versus dam-out scenarios.

That’s because, from a short-term practical point of view, a consensus seems to have already emerged that the dam-in scenario is the favored option. As Sabra Briere (Ward 1) put it on Sept. 8, in the week prior to that briefing she’d sensed a shift from a question of whether to keep the dam or not to the question of who pays to mantain the dam. Together with Hieftje’s prediction that the dam would stay, this suggests an acknowledgement that the dam-in scenario has won the day. In that regard, it’s worth pointing out, however, that Rapundalo stressed at the Sunday caucus that the resolution would not preclude ongoing discussions by various environmental groups and that the dam’s removal was not being ruled out for all time.

Briere’s identification of the question on Sept. 8 of who pays was echoed Sunday evening by the watershed council’s Laura Rubin. She pointed out that the dam is currently maintained out of the water fund – something she suggested was probably illegal – and called for the cost to be transferred to parks and recreation where it belonged, because Argo Dam is a recreational dam. Rubin also pointed out that in two years, the dam is due for $250,000 worth of maintenance, a cost that needed to be factored into budget calculations.

Rubin also wanted to know how the legal action was being paid for, which the city was undertaking in the form of the contested order. Rapundalo speculated that it was coming from the city attorney office’s budget but said he’d look into that to get a definitive answer.

Summarizing some questions that might be given some clarity in the course of council deliberations on Monday:

• How will maintenance costs for Argo Dam be funded in the future?
• Have the piezometers yielded data that bears one way or another on the berm safety issue?
• What’s the formal status of the contested order with the MDEQ – has the order actually been contested to the full extent that it can be contested?
• How much has Bodman been paid already, and how much is the legal bill expected to be if the contested order continues to be pursued?
• Out of what fund is the legal fee being paid?