The Ann Arbor Chronicle » FDD

Shelton to Hear Motions in FDD Case

Dave Askins — Sat, 23 Aug 2014 21:07:10 +0000

The footing drain disconnection lawsuit filed against the city of Ann Arbor in late February has taken several procedural turns over the last six months, with virtually no issues on the merits of the case yet resolved.

From left: Assistant city attorney Abigail Elias, city attorney Stephen Postema and co-counsel for the plaintiffs Irvin Mermelstein. The photo is from the July 2, 2014 hearing on a preliminary injunction in the Yu v. Ann Arbor case, which judge Donald Shelton denied.

The latest procedural issues now appear set to be decided on Aug. 27, 2014 – judge Donald Shelton’s final motion day before his retirement.

The case involves a claim of unconstitutional takings – inverse condemnation. Plaintiffs in the case, Yu v. City of Ann Arbor, are three Ann Arbor residents who had their footing drains disconnected under the city FDD program.

The procedural issues that could be decided next week include a motion to disqualify the city attorney’s office from representing the city due to conflicts; a motion to sanction city attorneys for filing documents with statements that plaintiffs allege are not well-grounded in fact; and a motion to reassign the case to a judge other than Timothy Connors. All three motions were filed with the court on Wednesday, Aug. 20.

A dispute about whether those Aug. 20 filings were properly served upon the city is one of the issues Shelton could decide at the start of the hearing.

By way of background, the case was originally filed in the Washtenaw County 22nd circuit court and assigned to Shelton in late February. The city then removed the case to federal court. However, the plaintiffs moved for remand from the federal court back to the circuit court – a motion that was granted by judge Avern Cohn in late May.

When the case returned to the circuit court, plaintiffs filed a motion for a preliminary injunction, which was heard and denied by Shelton in early July. The city had filed a motion for summary disposition on June 9, which was originally scheduled for July 30. It was subsequently rescheduled by the city for Aug. 13, and then shifted by the city again to Sept. 18 – which is after Shelton’s scheduled retirement.

According to the court administrator’s office, the case will not officially be reassigned to a different judge until Sept. 2. However, when The Chronicle inquired with the 22nd circuit court’s central scheduling office, the staff indicated that the plan was to reassign all of Shelton’s civil cases to Connors. So the city’s paperwork scheduling of the Sept. 18 hearing specifies Connors as the judge.

Motion on Reassignment

The Sept. 18 hearing date on the city’s motion for summary disposition could change if Shelton grants the motion to reassign the case to a judge other than Connors.

The motion to reassign is based on the fact that attorney Mark Koroi is co-counsel for the plaintiffs. According to the brief in support of the motion to reassign the case away from Connors, Koroi has filed four Judicial Tenure Commission grievances against Connors, two of which have been upheld. Koroi’s brief also notes that he has engaged in “vigorous public advocacy against political candidacies of both Timothy Connors and his wife.”

The plaintiff’s brief notes that Michigan court rules stipulate that it is the challenged judge who must make an initial ruling on a motion for disqualification, so the motion to reassign is a proactive measure to eliminate the need to file a motion in front of Connors, which would asked that Connors disqualify himself. [Aug. 20, 2014 Yu v. City of Ann Arbor brief on reassignment]

The city’s response brief argues that the motion is actually a motion for disqualification, and as such the motion is premature and should be heard by Connors. The city also argues explicitly against the idea that Connors should be disqualified, noting that if political speech critical of a judge were adequate grounds for disqualification, then an attorney could engage in such speech specifically so that the attorney would never have to appear in front of that judge.

The city also argues that the brief in support of the motion to reassign doesn’t provide any evidence that Connors is aware of Koroi’s political advocacy or that Connors is actually biased against Koroi. [Aug. 22, 2014 Yu v. City of Ann Arbor response brief on reassignment]

Motion for Sanctions

A second motion filed on Aug. 20 for hearing on Aug. 27 is to sanction the city attorney’s office for filing papers that are “neither well-grounded in fact nor warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” The papers in question are the city’s brief in support of its motion for summary disposition. [June 9, 2014 Yu v. City of Ann Arbor brief on summary disposition]

Included in the plaintiffs’ claims asking for sanctions to be imposed are that some of the key arguments in the city’s motion for summary judgment are frivolous. Plaintiffs assert that the city’s argument that the plaintiffs’ complaint is time-barred is frivolous. The plaintiffs then argue that one of the city’s positions – that the plaintiffs’ federal claims should be dismissed – is crucially based on the city’s contention that the claims are time-barred.

The plaintiffs’ brief in support of sanctions also asserts that the city has mischaracterized the plaintiffs’ position, highlighting instances where the city states that the plaintiffs have “recognized” or “conceded” some key aspect of the city’s legal position. The plaintiffs argue that the plaintiffs have not recognized or conceded the things that the city claims in its brief. [Aug. 20, 2014 Yu v. City of Ann Arbor brief on sanctions]

For example, the city claims in its brief that [emphasis added]:

Plaintiffs recognize that they own the sump pumps they installed and that the sump pumps and footing drain system operate as an integral part of their houses; in other words that neither the city nor a third party owns anything located in their homes, occupies their properties, or has otherwise taken their properties.

The claim is presented in the “introduction” section of the city’s brief, a section of pleadings where recitations of uncontroversial fact are typically presented. The question of pump ownership and occupation of residents’ homes by the third party are central points of dispute in the case. The plaintiffs’ brief in support of sanctions argues that the citations by the city to the plaintiffs’ pleadings – in support of the claim of “recognition” – do not in fact support a claim of “recognition.”

Another claim by the city – presented in the “background facts” portion of its brief in support of summary disposition – is that [emphasis added]:

“Plaintiffs concede that Sec. 1.1 [the footing drain disconnection ordinance] was adopted by the City to address the public health, safety and welfare issues of sanitary sewer back-ups in basements and sanitary overflows.”

The portion of the plaintiffs’ brief cited by the city in making that characterization does not, according to the plaintiffs, provide any support for the city’s contention that a concession has been made. And elsewhere in the plaintiffs’ brief, they state [emphasis added]:

Upon information and belief, the Ordinance was not enacted in response to emergency conditions or some other imminent threat to public health, safety or welfare. Rather, the Ordinance was enacted by the City in order to facilitate a solution to long-standing and self-created conditions in the least expensive and/or most expedient way possible.

Based on the city’s descriptions of the plaintiffs’ statements, the plaintiffs contend that the city is distorting the record. From the plaintiffs’ brief in support of sanctions:

This level of mischaracterization goes beyond zealous advocacy: it is misleading and is unfair to both the Court and to the Plaintiffs, whose lawyers are forced to ferret out mischaracterizations and distortions of the record when they should be responding to a “fair presentation of the issues” by opposing counsel.

The city’s response to the plaintiffs’ brief in support of sanctions deals with the part involving plaintiffs’ frivolous legal arguments by arguing for the merit of those arguments.

In its brief opposing sanctions, the city responds to the plaintiffs’ contention that their statements have been misrepresented to the court by insisting that the city’s characterization is based on the plaintiffs’ recitation of facts – and an attachment to the complaint of the city’s written “homeowner’s package” for sump pump install-ees.

The city’s position appears to be that whatever factual claims and characterizations that are made in the “homeowner’s package” were recognized and represented to the court by the plaintiffs as true – by dint of the attachment of the “homeowner’s package” to the plaintiffs complaint as an exhibit. So the city is not analyzing the plaintiffs’ exhibit merely as a representation by the plaintiff as to what the city itself claims to be true (via public documents produced by the city), but also what the plaintiff is recognizing to be true. [Aug. 22, 2014 Yu v. City of Ann Arbor response brief on sanctions]

The city blames any misunderstanding on the plaintiffs, arguing that the plaintiffs wrote poorly worded filings. From the city’s response brief, opposing sanctions:

[T]he City has not mischaracterized Plaintiffs’ Complaint, but has simply analyzed it as written by Plaintiffs. Plaintiffs’ dissatisfaction with the City’s reading of their Complaint arises from Plaintiffs’ own failure to draft a well-pleaded Complaint.

Motion on Disqualification

A third motion filed by the plaintiffs for hearing on Aug. 27 is one that would disqualify assistant city attorney Abigail Elias, and thereby the city attorney’s office, from representing the city in this lawsuit. [Aug. 20, 2014 Yu v. City of Ann Arbor brief in support of disqualification]

The brief arguing for disqualification cites an email sent by plaintiffs’ counsel in early February notifying Elias that she would likely be called as a witness in the case:

I am advising that your non-privileged testimony and evidence will likely be required in connection with litigation over the FDDP, which is now in preparation for filing. The case will include a claim for inverse condemnation. You are a necessary witness on both liability and relief, which probably comes as no surprise.

The plaintiffs argue partly on grounds that they need to depose Elias as a reason to disqualify her as the city’s representation.

In its brief in opposition to the motion on disqualification, the city contends that there is no testimony that Elias is in a unique position to provide other than testimony that would be subject to the attorney-client privilege. [Aug. 22, 2014 Yu v. City of Ann Arbor brief opposing disqualification]

The city also contends that disqualification of its city attorneys would be prejudicial to the city, because “Ms. Elias has been involved with the FDD program since its inception 13 years ago. Her familiarity with and knowledge of the issues in this case from those years cannot be replicated easily or quickly.”

Hearing

The next hearing is currently scheduled for Aug. 27 at 1:30 p.m. in front of judge Donald Shelton at the 22nd circuit courthouse, 101 E. Huron in downtown Ann Arbor.

FDD Contract Extended for CDM Smith

Chronicle Staff — Tue, 03 Jun 2014 05:05:37 +0000

A contract extension with CDM Smith Inc. for continued work as part of Ann Arbor’s footing drain disconnection (FDD) program has been approved by the city council. The vote at the council’s June 2, 2014 meeting was 6-2, over dissent from Jack Eaton (Ward 4) and Sumi Kailasapathy (Ward 1). Mike Anglin (Ward 5) was absent.

It had previously been postponed at the council’s May 5, 2014 meeting, to be taken up again on June 2. During the postponement, the dollar amount of the contract extension had been reduced from $748,106 to $143,440. That reflects a reduction in the scope of the work. The original May 5 resolution called for the following activities to be funded: citizen support ($36,928); FDD citizens advisory committee meetings ($24,180); information management for sump pump monitors ($93,707); developer offset mitigation (DOM) program support; ($95,213); and multi-family FDD implementation ($498,005).

No longer a part of the scope of work in the approved June 2 resolution were the FDD citizens advisory committee meetings, information management, or the multi-family FDD implementation. The revised memo describes how the funding would only provide a bridge until recommendations from a study group have been received, which will determine the future of the FDD program:

This amendment would provide the services needed to bridge the gap until the SSWWE [Sanitary Sewer Wet Weather Evaluation] Project recommendations have been made. Presently, the anticipated timeline for completion of the SSWWE Project is in the autumn of 2014. That does not allow sufficient time to issue a new RFP, collect and review proposals, award a contract, and bring a new consultant up to speed to manage the remaining FDD and DOM work outlined above. Existing City staff does not currently have the available resources or expertise to perform the inspections required for the DOM program.

Details on the council’s June 2 deliberations are provided in The Chronicle’s live updates filed during the meeting.

By way of additional background, in 2012 the city’s program to disconnect footing drains from the sanitary sewer system was suspended by the council in some areas of the city. Specifically, it was suspended in the Glen Leven and Morehead (Lansdowne neighborhood) areas. The program was allowed to continue in other geographic areas and as part of the city’s developer offset mitigation (DOM) program. The DOM requires owners of new developments to complete a certain number of FDDs to offset the additional flow in the sanitary system caused by new construction.

The CDM contract drew scrutiny at the May 5 meeting because the city is currently undertaking a sanitary sewer wet weather evaluation (SSWWE) study. It’s supposed to yield a recommendation about whether to continue with the FDD program, and if so, in what form. In addition, the city’s ordinance – which requires property owners to undertake FDDs – was challenged in a lawsuit filed earlier this year. That case is pending as the city first removed the case from state to federal court. But the result of a May 28 hearing before a federal judge will be to return the case to the Washtenaw County 22nd circuit court.

The previous three iterations of the CDM contract totaled about $3.6 million. The money for these contracts is drawn from the city’s sewer fund.

The proposed contract extension drew criticism during public commentary on May 5 from Frank Burdick, a Ward 4 resident who urged the council to reject it. Burdick spoke again during public commentary on June 2, and again advocated for rejecting the contract.

Since the FDD program’s start in 2001, about 1,834 footing drains have been disconnected through the city program and 848 footing drains have been disconnected through the developer offset mitigation program.

Animation of contrast between the pre-FDD configuration and the post-FDD configuration. (Original illustration from screenshots of YouTube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

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

June 2, 2014: Council Live Updates

Dave Askins — Mon, 02 Jun 2014 20:13:16 +0000

Editor’s note: This “Live Updates” coverage of the Ann Arbor city council’s June 2, 2014 meeting includes all the material from an earlier preview article published last week. The intent is to facilitate easier navigation from the live updates section to background material already in this file.

The council’s first meeting after adopting the budget for fiscal year 2015 – which was approved on May 19, 2014 – features a housekeeping adjustment for the current year’s budget, so that expenditures don’t exceed allocations.

The sign on the door to the Ann Arbor city council chamber includes Braille.

But the June 2 meeting agenda is dominated by items related to the physical attributes and layout of the city. Several items deal with city-owned physical assets, while several more involve land use and planning.

Possibly one of the more controversial agenda items related to physical infrastructure – and future development in the city – is a contract extension with CDM Smith Inc. for work related to the city’s footing drain disconnection (FDD) program. While the city council suspended the program in certain areas of the city in 2012, it continued in other areas, backed by the city’s ordinance under which the city can require residents to disconnect their footing drains from the sanitary sewer system.

Also not suspended was the city’s developer offset mitigation program, which requires developers to offset the increased flow from new construction into the sanitary sewer system. The vote on the CDM Smith Inc. contract extension was postponed from the council’s May 5 meeting. The dollar amount of the contract extension has been substantially reduced in the meantime – from about $750,000 to $143,000.

Part of the backdrop of the CDM Smith contract extension is a lawsuit that’s been filed against the city, challenging the legal foundation of the footing drain disconnect ordinance. The city sought to remove the case from state court to the federal system, but at a hearing on the matter this week, a federal judge indicated he’d be remanding the case back to the Washtenaw County 22nd circuit court.

City assets on the June 2 agenda include trees – as the council will be asked to approve the city’s urban and community forest management plan. The council will also consider a resolution on the city’s possibly most recognizable asset – the city hall building. The resolution would remove a $4 million renovation of city hall (a “reskinning”) from the city’s capital improvements plan for 2017 and 2018. This resolution was postponed from the council’s May 19 meeting.

Another city-owned asset on the agenda is the Library Lane underground parking garage. The council has already directed the city administrator to engage a real estate broker to test the market for the development rights for the surface of the garage. The resolution on the June 2 agenda, which was postponed at the council’s April 7 meeting, would set a policy to deposit 50% of the net proceeds from the sale of the development rights into the city’s affordable housing trust fund.

Land use and planning items on the June 2 agenda include a roughly $300,000 contract for study of the State Street transportation corridor. Related to transportation infrastructure, the council will also be asked to approve resolutions that move along the process of special assessing property owners on Stone School Road for the cost of installing a sidewalk on the west side of the road in connection with a road reconstruction project.

Also related to land use, three Ann Arbor housing commission properties will be given initial consideration for rezoning. A site plan and associated rezoning for the Delta Gamma house will be given final consideration. Also up for final consideration is a revision to the ordinance regulating drive-thrus. Councilmembers will also consider the site plan for a new Ruth’s Chris restaurant to be located downtown on South Fourth Avenue.

A rate increase for Ann Arbor water, sewer and stormwater rates is on the June 2 agenda for final approval.

Two items connected to parks and recreation appear on the agenda. One is approval of the receipt of funding for a program that helps Bridge cardholders purchase local produce at the farmers market. The second item is approval of a five-year agreement with the Community Action Network to continue operating the city’s Northside and Bryant community centers.

The council will also be considering a resolution in support of the local development finance authority’s application to the Michigan Economic Development Corp. for a possible 15-year extension of the arrangement under which the LDFA captures taxes. The captured taxes are used to fund a business accelerator that’s operated by Ann Arbor SPARK through a contract with the LDFA. Without an extension, the LDFA would end in 2018.

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

The Chronicle will be filing live updates from city council chambers during the meeting, published in this article below the preview material. Click here to skip the preview section and go directly to the live updates. The meeting is scheduled to start at 7 p.m. at city hall, 301 E. Huron.

Amend Current Year’s Budget

On June 2 the council will consider a resolution amending the current fiscal year’s budget (FY 2014) to ensure that expenditures do not exceed appropriated amounts. The budget amendment will ensure compliance with Public Act 621 of 1978.

The total requested general fund budget amendment is $60,000. For all other funds, the amendment to be considered by the council on June 2 totals $310,000.

The non-general fund amount will cover right-of-way maintenance and purchase of materials that were necessary to deal with the severe winter weather. The general fund amount was the city’s cost for the Ann Arbor Area Transportation Authority’s special election held on May 6. That amount will eventually be reimbursed by Washtenaw County – which in turn will receive reimbursement from the AAATA to cover the roughly $100,000 cost of the election.

FDD Program Contract Extension

A contract extension with CDM Smith Inc. for continued work as part of Ann Arbor’s footing drain disconnection (FDD) program appears on the June 2 agenda. It had been postponed at the council’s May 5, 2014 meeting.

No longer a part of the scope of work in the revised June 2 resolution are the FDD citizens advisory committee meetings, information management, or the multi-family FDD implementation. The revised memo describes how the funding would only provide a bridge until recommendations from a study group have been received, which will determine the future of the FDD program:

This amendment would provide the services needed to bridge the gap until the SSWWE [Sanitary Sewer Wet Weather Evaluation] Project recommendations have been made. Presently, the anticipated timeline for completion of the SSWWE Project is in the autumn of 2014. That does not allow sufficient time to issue a new RFP, collect and review proposals, award a contract, and bring a new consultant up to speed to manage the remaining FDD and DOM work outlined above. Existing City staff does not currently have the available resources or expertise to perform the inspections required for the DOM program.

The previous three iterations of the CDM contract totaled about $3.6 million. The money for these contracts is drawn from the city’s sewer fund.

The proposed contract extension drew criticism during public commentary on May 5 from Frank Burdick, a Ward 4 resident who urged the council to reject it. Council deliberations on this item were included as part of The Chronicle’s live updates from the May 5 meeting.

Urban Forest

The city’s first comprehensive plan for managing Ann Arbor’s urban forest will be considered at the council’s June 2 meeting. The Ann Arbor park advisory commission recommended adoption of the plan at its meeting on April 15, 2014. [.pdf of Urban & Community Forest Management Plan]

An urban forest is defined as all the trees, shrubs and woody vegetation growing along city streets, in public parks and on institutional and private property. In Ann Arbor, about 25% is on public property, with 75% on private property. Based on a U.S. Dept. of Agriculture Forest Service i-Tree Eco Analysis done in 2012, Ann Arbor’s urban forest has an estimated 1.45 million trees. It creates a 33% tree canopy – the layer of leaves, branches and stems of trees that cover the ground when viewed from above.

The city manages 43,240 street trees and about 6,900 park trees in mowed areas. A tree inventory conducted in 2009 didn’t include natural areas, she noted, so there are thousands of trees that aren’t counted. The urban forest includes over 200 species, representing 82 genera.

Map of selected tree variety by The Chronicle from city of Ann Arbor 2009 survey. Image links to dynamic map hosted on geocommons.com

PAC had been briefed on the 135-page Urban & Community Forest Management Plan at its Feb. 25, 2014 meeting by Kerry Gray, the city’s urban forest & natural resources planning coordinator. The management plan includes 17 recommendations, listed in priority based on community feedback for implementation. Each of the 17 recommendations includes action tasks and implementation ideas, case studies, and resources that are needed, including funding. The recommendations are:

Implement proactive tree maintenance program.
Strengthen tree planting and young tree maintenance programs.
Monitor threats to the urban and community forest.
Increase landmark/special tree protections.
Secure adequate city‐funding for urban forestry core services.
Develop street tree master plans.
Pursue grant and philanthropic funding opportunities.
Strengthen forestry related ordinances.
Update tree inventory and canopy analysis.
Develop urban forest best management practices.
Increase urban forestry volunteerism.
Strengthen relationships with outside entities who impact trees.
Implement community outreach program.
Obtain the best use of wood from removed trees.
Create city staff working groups to coordinate projects that impact trees.
Engage the city’s Environmental Commission in urban and community forestry issues.
Review the urban forest management plan periodically and update as needed.

The city council has adopted a budget for FY 2015, which starts July 1, 2014 that includes a one-time expenditure of $1 million to address the backlog in maintenance of trees in the public right of way.

Included in the focus of the effort to remove the backlog are trees classified as Priority 1 removals (red dots), Priority 2 removals (yellow dots), Priority 3 removals (blue dots) for large trees and Priority 1 prunings (green dots). [Map by The Chronicle with data from the city of Ann Arbor.]:

City Hall Reskinning

At its June 2 meeting, the council will consider a proposal to recommend to the planning commission that the capital improvements plan (CIP) for FY 2017 and FY 2018 be revised to remove the $4.4 million that is included for a city hall reskinning project. The planning commission is the body that approves the CIP. But the council has budgetary discretion to fund projects in the CIP or not – so the resolution in some sense calls on the planning commission to take an action it does not have the authority to execute. This was a point made during deliberations at the council’s May 19, 2014 meeting when the item was postponed.

According to a staff memo written in response to a councilmember question, reskinning of the Larcom City Hall building would mean replacing the existing exterior walls and windows of the building. The result would be new squared-off exterior, eliminating the inverted pyramid design. The new exterior would hang vertically from the sixth floor.

The focus of the project is on improving energy efficiency. The memo describes existing windows as mostly single-pane glass on aluminum frames, which offer little insulation value. The project would also result in an incremental gain in square footage – because the lower floors would have the same footprint as the sixth floor, which is currently the largest floor of the building. The materials used for the exterior would “blend better” with the recently constructed Justice Center, which adjoins city hall.

Library Lot Sale Proceeds

On June 2 the city council will consider a resolution setting a policy for distribution of the proceeds from the sale of development rights on the Library Lot. The proposed policy would set aside 50% of the net proceeds to the city’s affordable housing trust fund.

The council has already directed the city administrator to hire a real estate broker to explore selling the rights to develop the site – above the Library Lane underground parking structure, which was completed in 2012.

The item was postponed at the council’s April 7, 2014 meeting. The vote was 6-5 to postpone, with dissent from Sabra Briere (Ward 1), Christopher Taylor (Ward 3), Margie Teall (Ward 4), Chuck Warpehoski (Ward 5), and mayor John Hieftje.

State Street Transportation Corridor Study

The June 2 agenda includes a resolution for a $299,911 contract with Parsons Brinckerhoff Michigan Inc. to conduct a study of the South State Street transportation corridor. The 1.3 mile long area of the study extends from the intersection of Ellsworth Road and South State Street north to the intersection of Oakbrook Drive and South State Street. The money to pay for the study will be drawn in equal parts from the current fiscal year and next year’s general capital fund budget. The study will take a year, starting in June 2014.

The goal of the study is focused on transportation needs in the corridor and to provide base conceptual engineering plans for the redesign of the corridor – possibly including a boulevard “Complete Street” design. The redesign would be intended to “address all modes of travel; enhance vehicle flow; improve safety; create an aesthetically pleasing entrance to the City; and, utilize sustainable concepts such as low impact design (‘LID’), and low energy use lighting.”

The study of the area as a transportation corridor comes not long after a recently completed South State Street corridor plan, adopted by the city council into the city’s master plan at its July 15, 2014 meeting. That corridor plan established planning objectives for the land use along the corridor.

Besides Parsons Brinckerhoff, the other bidder for the work was DLZ.

Stone School Road Sidewalk Special Assessment

As part of a road reconstruction project for Stone School Road, the city is planning to install a sidewalk on the west side of the road. To fund the sidewalk construction, part of the cost will come from a special assessment of property owners. The extent of the project on Stone School Road runs from I-94 to Ellsworth Road. Construction is planned for the project during the 2014 and 2015 construction seasons.

The project is being funded in part through a federal surface transportation grant, which can pay about 80% of construction costs, but not engineering, testing or inspection costs. The total project cost is roughly $128,500, of which about $55,000 will be special assessed.

The council will be asked to approve a resolution directing the city assessor to set the roll of properties to be assessed.

Rezoning: Housing Commission Properties

At its June 2 meeting, the city council will consider giving initial approval to the rezoning of three Ann Arbor Housing Commission properties. The planning commission had recommended the rezoning at its May 6, 2014 meeting. The current PL (public land) zoning for some of the properties is a vestige of the AAHC properties’ status as city-owned land. The city council approved the transfer of deeds to the AAHC at its June 2, 2013 meeting. The three sites to be considered on June 2 are part of the housing commission’s major initiative to upgrade the city’s public housing units by seeking private investors through low-income housing tax credits.

Rezoning is recommended for the following public housing sites, two of which are currently zoned as public land:

Baker Commons: Rezone public land to D2 (downtown interface). The 0.94-acre lot is located at 106 Packard Street, at the intersection with South Main, in Ward 5. It includes a 64-unit apartment building.
Green/Baxter Court Apartments: Rezone public land to R4A (multi-family dwelling district). The 2-acre site is located at 1701-1747 Green Road and contains 23 apartments in four buildings and a community center. It’s in Ward 2.
Maple Meadows: Currently zoned R1C (single-family dwelling district), the recommendation is to rezone it as R4B (multi-family dwelling district). The site is 3.4 acres at 800-890 South Maple Road and contains 29 apartments in five buildings and a community center. It’s located in Ward 5.

At the planning commission’s May 6 meeting, AAHC director Jennifer Hall explained that PL zoning doesn’t allow housing to be built on it. As AAHC seeks private funding to rehab its properties, it needs to ensure if a building burns down, for example, it could be rebuilt. In general that’s why the rezoning is being requested. It’s also being requested to align the zoning with the current uses of the property. She stressed that the highest priority properties to be rezoned are Baker Commons, Green/Baxter and Maple Meadows, because investors have already been found to renovate those sites.

For these three sites, planning commissioners also voted to waive the area plan requirements for the AAHC rezoning petitions, because no new construction is proposed and surveys of the improvements have been provided.

For additional background on the AAHC process of renovating its properties, see Chronicle coverage: “Public Housing Conversion Takes Next Step.”

Delta Gamma Site Plan, Rezoning

The city council will be asked on June 2 to give final approval of a rezoning request for 515 Oxford, to convert a house for use as an annex to the Delta Gamma sorority. The main sorority house is located nearby at 626 Oxford. The council gave initial approval to the rezoning at its May 5, 2014 meeting. Also on the June 2 agenda is consideration of the site plan approval for the same project. The site plan was recommended for approval by planning commissioners on April 15, 2014.

Aerial view showing the location of 515 Oxford, south of Geddes and at the eastern end of South University.

The rezoning request, recommended by the planning commission on Jan. 23, 2014, is to rezone the parcel from R4A (multi-family dwelling) to R2B (two-family dwelling and student housing). Most of the surrounding parcels are zoned R2B, although the site immediately to the north is also zoned R4A. Also nearby is public land (PL) where the University of Michigan’s Oxford Houses complex is located.

The two-story house at 515 Oxford includes two one-story wings. It is currently a rental property with three units – a studio apartment, one-bedroom apartment, and four-bedroom apartment – and a maximum occupancy of 8 people. One of the units is in a former garage.

The proposal for a renovation would accommodate a maximum of 20 residents, including a required resident manager.

The building is notable because it was originally designed in 1940 by architect George Brigham, who used it as his home and architectural studio. He designed over 40 houses in Ann Arbor, including many in Arbor Hills and Barton Hills between 1936 and 1958.

Drive-Thru Ordinance: Final Approval

On the city council’s June 2 agenda is final approval of amendments to Ann Arbor’s zoning ordinance related to drive-thrus. Initial approval came at the council’s May 5 meeting. The amendments would add a definition of a “drive-thru facility” to Chapter 55 of the city code. Currently, the term used throughout the code is “drive-in,” which is not explicitly defined in the code.

The proposed revisions define a drive-thru in this way: “Any building or structure, or portion thereof, that is constructed or operated for the purpose of providing goods or services to customers who remain in their vehicle during the course of the transaction.” The revisions also clarify that a drive-thru is an accessory use, not the principle use of the building. A project in which a drive-thru would be the principle use would not be allowed. Basic layout requirements would also be added to the ordinance.

In addition, the changes would require drive-thrus to obtain special exception use permits, which would be allowed only in the O (office), C2B (business service) and C3 (fringe commercial) zoning districts. Drive-thrus would not be allowed in the C1, D1, D2, and other commercial districts.

Currently, drive-thrus are allowed in C3 districts without a special exception use. They are allowed as special exception uses in the C2B district.

When considering whether to grant a special exception use – which does not require additional city council approval – the planning commission considers these issues:

1. Is the location, size and character of the proposed use compatible with the principal uses of the district and adjacent districts? Is it consistent with the Master Plan? Is it consistent with the surrounding area? Will it have any detrimental effects to the use or value of surrounding area, or the natural environment?

2. Is the location, size, character, layout, access and traffic generated by the use hazardous or inconvenient or conflicting with the normal traffic of the neighborhood? Is off-street parking safe for pedestrians? Do the necessary vehicular turning movements block normal traffic flow? Are any additional public services or facilities needed by the use, and will they be detrimental to the community?

3. Is the maximum density and minimum required open space at least equal to the standards normally required by the Zoning Ordinance for the district?

The planning commission recommended the changes at its April 1, 2014 meeting.

The proposed amendments were first reviewed by the commission’s ordinance revisions committee in 2007, but never moved forward to the full commission for consideration. The ORC most recently reviewed these changes in March of 2014. [.pdf of staff memo and proposed amendments]

Ruth’s Chris Site Plan

The site plan for a new Ruth’s Chris Steak House on Fourth Avenue in downtown Ann Arbor is on the June 2 agenda for consideration. The planning commission recommended approval at its April 1, 2014 meeting.

Proposed facade of Ruth’s Chris Steak House at 314 S. Fourth Ave.

The site plan calls for renovating the single-story building at 314 S. Fourth Ave. and putting up a 1,943-square-foot second-floor mezzanine addition over the front part of the existing building. The current structure is 8,024 square feet, and most recently housed the Dream Nite Club, which closed in 2012. The project is estimated to cost $2.2 million. [.pdf of staff report on Ruth's Chris site plan]

Part of the planning commission’s discussion focused on whether there might be outdoor dining in front of the restaurant. The project’s architect indicated that at this point, outdoor seating wouldn’t be appropriate, in part because of bus traffic. The building is located near the Blake Transit Center, a hub for public transportation. The architect also indicated that the restaurant will be using valet parking, with valets positioned in front of the building.

This would be the first Ruth’s Chris Steak House in Ann Arbor. The chain is based in Florida, with locations nationwide.

Utility Rates

The council will consider giving final approval to higher utility rates – for water, sewer and stormwater. Initial approval came at the council’s May 19 meeting.

Water rates will increase across all tiers of consumption. For the first 7 “units” of water, the charge is will increase from $1.35 to $1.40. For the next 21 units, the charge is proposed to increase from $2.85 to $2.96 per unit. And for the 17 units after that, the increase is proposed to be from $4.88 to $5.08. A unit is 100 cubic feet, which is 748 gallons.

Sewer rates will increase from $3.65 to $3.85 per unit. And stormwater fees would increase for all tiers of impervious service. For the middle tier – for more than 2,187 square feet but less than or equal to 4,175 square feet – on a quarterly basis, the increase would be from $24.85 to $26.32.

According to the staff memo accompanying this agenda item, the recommended rate changes in water, sewer, and stormwater would increase revenues to the water, sewer, and stormwater funds by $765,119, $1,171,931 and $410,235 respectively. The reason given for the rate increases is to cover maintenance and debt payments, and to maintain funding for capital improvement requirements. The city calculates the impact to be an additional $6.25 per quarter or $24.98 per year for an average consumer, which is a net increase of 4.2%.

Water consumption for a typical single family is assumed at 19 units per quarter.

History of city of Ann Arbor water rates. The city converted to a tiered system 10 years ago in 2004, based on usage. The 2015 amount is proposed.

Grant to Farmers Market for Food Stamp Recipients

At its June 2 meeting, the city council will consider approval of an agreement with the Fair Food Network to continue administering the Double Up Food Bucks program at the Ann Arbor farmer’s market. Approval would entail acceptance of $32,000 in funding.

The Double Up name stems from the fact that it provides a match of up to $20/person/day for people using SNAP (Bridge cards/EBT/food stamps) to purchase Michigan-grown produce at farmers markets in Michigan.

The city of Ann Arbor has received Double Up Food Bucks grant funding since 2010.

Partnership with Community Action Network

A proposal for a five-year partnership with the nonprofit Community Action Network is on the June 2 agenda. The partnership was recommended for approval by the Ann Arbor park advisory commission at its May 20, 2014 meeting.

The agreement would be for CAN to continue operating the city’s Bryant and Northside community centers, which the nonprofit has been managing since 2008. The proposed amount is not to exceed $130,000 annually – an increase of $25,000 from the current agreement. The higher amount is included in the FY 2015 general fund budget for parks and recreation that the city council approved on May 19. According to a staff memo, the higher amount will address increases in fixed costs and “assist in retaining quality staff that is at the core of the services that CAN provides.” [.pdf of staff memo]

The staff memo also noted that a request for proposals (RFP) was not issued for this work, because CAN has been the sole respondent to the previous two RFPs and the city is satisfied with its work.

During the May 20 PAC meeting, CAN received praise for their work from several commissioners and Colin Smith, the city’s parks and recreation manager. CAN executive director Joan Doughty and deputy director Derrick Miller were on hand to answer questions. Part of the discussion focused on CAN’s exemption from the city’s living wage requirement, which the city council granted in 2012 for a three-year period through Nov. 8, 2015. Doughty noted that the exemption was sought in part because CAN was paying a living wage to part-time employees who were high school or university students, which limited the nonprofit from paying higher wages to full-time workers. She also pointed out that the city parks and recreation unit isn’t required to pay the living wage to its seasonal workers.

LDFA Extension

On the council’s June 2 agenda is an item that would express city council support of the local development finance authority’s application to the Michigan Economic Development Corp. to extend the life of the tax capture arrangement for up to 15 years. Without an extension, the LDFA would end in 2018.

Ann Arbor’s local development finance authority is funded through a tax increment finance (TIF) district, as a “certified technology park” described under Act 281 of 1986. The Michigan Economic Development Corp. (MEDC) solicited proposals for that designation back in 2000. The Ann Arbor/Ypsilanti “technology park” is one of 11 across the state of Michigan, which are branded by the MEDC as “SmartZones.”

The geography of the LDFA’s TIF district – in which taxes are captured from another taxing jurisdiction – is the union of the TIF districts for the Ann Arbor and the Ypsilanti downtown development authorities (DDAs). It’s worth noting that the Ypsilanti portion of the LDFA’s TIF district does not generate any actual tax capture.

The LDFA captures Ann Arbor Public Schools (AAPS) operating millage, but those captured taxes don’t diminish the school’s budget. That’s because in Michigan, local schools levy a millage, but the proceeds are not used directly by local districts. Rather, proceeds are first forwarded to the state of Michigan’s School Aid Fund, for redistribution among school districts statewide. That redistribution is based on a per-pupil formula as determined on a specified “count day.” And the state reimburses the School Aid Fund for the taxes captured by SmartZones throughout the state.

In FY 2013, the total amount captured by the LDFA was $1,546,577, and the current fiscal year forecast is for $2,017,835. About the same amount is forecast for FY 2015.

The extension of the LDFA is made possible by Public Act 290 of 2012, which amended the Local Development Financing Act to allow a SmartZone to capture school taxes for an additional five years or an additional 15 years. The staff memo accompanying the resolution describes the five-year extension as possible “upon approval of the MEDC President and the State Treasurer, if the Ann Arbor/Ypsilanti SmartZone LDFA agrees to additional reporting requirements and the LDFA requests, and the city councils of Ann Arbor and Ypsilanti approve, the amendment of the LDFA tax increment financing (TIF) plan to include regional collaboration.”

A 15-year extension is possible, according to the memo, “if, in addition to the above requirements, Ann Arbor and Ypsilanti, as the municipalities that created the SmartZone, enter into an agreement with another LDFA [a "Satellite SmartZone"] that did not contain a certified technology park to designate a distinct geographic area, as allowed under Section 12b of the Act…”

The council’s resolution states that if the MEDC approves the extension, the city of Ann Arbor will work with the LDFA and the city of Ypsilanti to identify another LDFA – called the “Satellite SmartZone LDFA.” The arrangement will allow the Satellite SmartZone LDFA to capture local taxes in its own distinct geographic area for the maximum 15 years allowed by statute.

Responding to an emailed query from The Chronicle, Sally Petersen (Ward 2) – who sponsored the resolution on the agenda and serves as the council appointee to the LDFA board– wrote that possibilities for an LDFA satellite for Ann Arbor’s SmartZone include Adrian (Adrian College) or Brighton and Livingston County (with Cleary University).

4:07 p.m. The public speaking line-up for reserved speaking slots is now available on the agenda. Four people are signed up to talk about the policy for distributing proceeds from the sale of the development rights to the Library Lane site: Amanda Carlisle, Jean Carlberg, Jim Mogensen, and Seth Best.

Two people are signed up to talk about the routine adjustment to the city’s budget for the current fiscal year: Thomas Partridge and Jeff Hayner. Two people are signed up to talk about the resolution supporting the LDFA application for a 15-year extension: David Jsa and Gregg Hammerman.

Signed up to talk about the footing drain disconnection contract with CDM Smith is Frank Burdick. And Henry Herskovitz is signed up to talk about Israel’s attack on the USS Liberty in 1967. Signed up as an alternate speaker on the topic of engine powered heating is Kermit Schlansker.

5:08 p.m. Staff responses to councilmember questions about agenda items are now available: [.pdf of staff responses]

6:33 p.m. Council chambers are set up with the dividers already moved back to create more room and about 40 additional folding chairs are set up. The item involving the policy on the proceeds from the sale of development rights for the Library Lane lot is expected to draw a large number of people. About a dozen people have already arrived.

6:42 p.m. Jack Eaton (Ward 4) is the first councilmember to arrive. Two dozen people now in the audience in support of affordable housing. They include former councilmember and planning commissioner Jean Carlberg, who has signed up to speak during public commentary. Round yellow sticker read “Homes for the Homeless Now!”

6:49 p.m. Sally Petersen (Ward 2) has arrived. She’s talking to people in the audience, which now numbers about 40 people.

6:53 p.m. Jane Lumm (Ward 2) has arrived. She’s chatting with Paul Fulton of the city’s IT services staff.

6:54 p.m. Mayor John Hieftje has arrived. He’s chatting with Jack Eaton. City attorney Stephen Postema is here.

6:54 p.m. Jim Mogensen has arrived. He’s signed up to speak tonight on affordable housing.

6:54 p.m. Pre-meeting activity. The scheduled meeting start is 7 p.m. Most evenings the actual starting time is between 7:10 p.m. and 7:15 p.m.

7:01 p.m. Remaining councilmembers are starting to filter in. Stephen Kunselman (Ward 3) is here. Chuck Warpehoski (Ward 5), Sabra Briere (Ward 1) and Sumi Kailasapathy (Ward 1) have also arrived.

7:02 p.m. City administrator Steve Powers is here, along with the city clerk, Jackie Beaudry.

7:06 p.m. Not yet here are Mike Anglin (Ward 5) and Christopher Taylor (Ward 3).

7:06 p.m. Ann Arbor SPARK CEO Paul Krutko has arrived. He’s talking to John Hieftje.

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

7:10 p.m. Roll call of the council. Taylor, Anglin and Margie Teall (Ward 4) are absent.

7:10 p.m. Hieftje reports that Teall and Taylor will likely be along later. Anglin, however, is sick.

7:12 p.m. Approval of the agenda Eaton moves the closed session to just before DS-1 – that’s the footing drain disconnection contract with CDM Smith.

7:12 p.m. The council has approved the evening’s agenda.

7:12 p.m. Communications from the city administrator.

7:13 p.m. City administrator Steve Powers is ticking through some upcoming events, including his favorite – Red Fish, Blue Fish, which teaches kids how to fish. It’s on June 8 from 9:30 to 11 a.m. at the Gallup Park livery.

7:13 p.m. Hieftje says Petersen represented the city well in the half-marathon of the Dexter-Ann Arbor Run that was held on Sunday, June 1. [She ran a sub-2-hour race.]

7:13 p.m. Proclamation honoring the University of Michigan International Center as volunteer of the month. The proclamation honors students, scholars and families affiliated with the center who have volunteered their service in city parks.

7:16 p.m. Public commentary. This portion of the meeting offers 10 three-minute slots that can be reserved in advance. Preference is given to speakers who want to address the council on an agenda item. [Public commentary general time, with no sign-up required in advance, is offered at the end of the meeting.]

Four people are signed up to talk about the policy for distribution of proceeds from the sale of the development rights to the Library Lane lot: Amanda Carlisle, Jean Carlberg, Jim Mogensen, and Seth Best.

7:19 p.m. Amanda Carlisle is executive director of the Washtenaw Housing Alliance. That’s a coalition of more than 30 organizations working to end homelessness, she says. She invites people to stand if they’re here to support affordable housing. [Just about everyone in the center section and the additional chairs set up is standing is support.]

Carlisle says she visited people living under bridges last week, not a mile away from where she’s standing – and they need housing, she says. We can’t rely on state and federal funding, she says, so we need to find local solutions. She’s calling for support of DC-1, a resolution that would allocate 50% of the proceeds from the sale of development rights for the Library Lane lot to the city’s affordable housing trust fund.

7:22 p.m. David Jsa is a web developer and chief technology officer at Seelio. About 2.5 years ago, that company was invited into SPARK’s incubator – a company of four people. They were barely going to make it, he said. But they’ve now grown to a company of 15 employees. So they’ve moved into a larger office space. They’re indebted to the LDFA SmartZone and SPARK for helping the business grow. He says they expect to add around another 20 people. They love Ann Arbor and love to tell stories about how great a place Ann Arbor is to start up a company. He refers to people to the services his company received from the LDFA. He supports the extension of the term for the LDFA SmartZone.

7:25 p.m. Jean Carlberg is a former city councilmember and former city planning commissioner. She says she’s been working on affordable housing and housing for the homeless for 30 years. It’s not often you get a chance to put a “pile of money” to put into the affordable housing trust fund, she says. Affordable housing is at best a break-even proposition, she says. There are over 4,000 who need assistance in one year, she says. Councilmembers have all said they think that affordable housing is critical to the community, she notes. Carlberg urges the council to take the step of putting the proceeds from the Library Lane development rights into the affordable housing trust fund. She calls it a rare opportunity. Their actions should match their values and the values of the community, she says.

7:28 p.m. Jim Mogensen is speaking on the Library Lane resolution. He’s speaking for Religious Action for Affordable Housing. Back in the 1990s, one of the subgroups was looking for additional funds. That’s why RAAH was set up, he explains. They’ve raised about a half-million dollars, he says. Mogensen notes that it sounds like a lot of money, but it’s not. They compete with Habitat for Humanity and other organizations, so it’s difficult to raise money, he says. It’s important to have a trust fund available when projects happen, he says. For every complex problem there’s a simple solution – and it’s wrong, he quips. Putting all the affordable housing in Ypsilanti is one such “simple” solution, he says.

7:31 p.m. Seth Best apologizes for his attire. At the house on Stone School Road, they’ve been doing some renovating work, and he didn’t have a chance to change. He’s speaking in support of the Library Lane lot resolution. For every 100 people who are searching for affordable housing in the U.S., there are 30 homes available, he says. Affordable housing takes time, he says. He suggests that some of the money should support a community center or a warming center: Where do people go tonight? he asks. It’s national LGBT month, he says – and if you send people down South, that could put people’s lives in danger.

7:34 p.m. Frank Burdick introduces himself as a Ward 4 resident. He’s encouraging the council to vote no on the contract extension for CDM Smith for footing drain disconnection work. He says the city council has for the last 13 years listened only to the city staff and the city attorney, but not their constituents. He tells the council they have “married” the consultant, CDM. He talks about unhappy and anxious citizens who have failing sump pumps and frozen, improperly installed pipes. The city’s developer offset mitigation (DOM) program should be 100% funded by developers, he says. He contends that the DOM program is in serious legal jeopardy. He suggests that developers should deposit money into an escrow account instead of continuing the DOM program. He challenges mayoral candidates to consider their vote on the resolution.

7:37 p.m. Thomas Partridge introduces himself as a recent candidate for various public offices. He calls on the mayor and council to re-open the city budget to allow for more housing for affordable housing and community development for the most vulnerable residents of the city. Protections under existing city policies are not adequate, he says. He calls for a change in attitude to bring about rules changes so that the public could have greater lobbying access to city hall. He wants public participation periods during the meeting, not just at the start and at the end. He supports the resolution on the Library Land lot sale proceeds, but says that all of the money should go into the trust fund, not just 50%.

7:40 p.m. Gregg Hammerman is cofounder of Larky – a mobile, web-based service that helps people keep track of discounts and perks to which they’re entitled through professional associations, alumni associations, credit cards, health insurance, shopping clubs, community groups, museums and the like. He graduated from UM in 1994 and started his first company then, called Techstreet. At that time, Ann Arbor SPARK didn’t exist, he says. Still, they managed to persevere and Techstreet was finally purchased – and it now has $30 million in revenue and about 25 employees. Now there’s a real start-up culture here in Ann Arbor, which he attributes to LDFA and SPARK. His new company has eight employees, which had been achieved in a two-year cycle, instead of the nine years that his first company required.

7:43 p.m. Jeff Hayner is speaking against voting on the LDFA resolution tonight and encourages the council not to approve it until more information on the efficacy of SPARK’s programs is available. He’s arguing that the SmartZones statewide amount to a geographic transfer of wealth.

7:46 p.m. Henry Herskovitz begins by asking: What if you heard through the news media that fighter jets from South Korea were used to attack a U.S. ship? Our answer would be clear – that the U.S. would not tolerate an attack by an ally. South Korea has not done that, but that’s what happened in 1967 with the USS Liberty when Israel [mistakenly] attacked the ship. U.S. citizens should take it seriously when a foreign government can influence U.S. foreign policy, he says.

7:46 p.m. Christopher Taylor (Ward 3) has now arrived.

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

7:47 p.m. Sally Petersen (Ward 2) says that the topic of the work session on June 9 will be ethics and council rules.

7:49 p.m. Jane Lumm (Ward 2) thanks everyone who has come in to license their dogs. She was here on Friday afternoon and there was a long line at the clerk’s office. Everyone wants to do the right thing, she says.

7:52 p.m. Stephen Kunselman (Ward 3) thanks staff for the repaving of the St. Aubin service drive near Platt Road. He announces he’ll be bringing forth a resolution at a future meeting to tender an offer on 8 acres where the Burton Commons affordable project is proposed. [The idea would be to use open space millage money.] Here’s an animated .gif of the aerial photos of the property: Burton Commons land. He’s arguing for the purchase based on climate change and the adjacency of Sylvan Park to the north. The resolution would direct staff to make an offer to purchase at fair market value.

7:53 p.m. Eaton conveys Anglin’s regrets that he can’t attend.

7:53 p.m. Appointments: Confirmation. Tonight the council is voting on nominations to city boards and commissions made at the council’s May 19 meeting. Larry Eiler was nominated to the Economic Development Corporation, replacing Daniel Blakemore. Andy Baker-White and Amanda Carlisle were nominated to the housing and human services advisory board to fill vacancies.

7:54 p.m. Outcome: The council has unanimously approved all the appointments.

7:54 p.m. Appointments: Nominations. Being nominated tonight for reappointment to the city planning commission are Wendy Woods and Eleanore Adenekan. Being nominated for reappointment to the commission on disability issues are Linda Evans and Larry Keeler. Their appointments will be voted on at the council’s next meeting.

7:54 p.m. Hieftje asks Lumm how many openings still remain on HHSAB. Lumm thinks there are still three vacancies.

7:54 p.m. Public hearings. All the public hearings are grouped together during this section of the meeting. Action on the related items comes later in the meeting. Five public hearings are scheduled tonight: PH-1 Ordinance to raise water, sewer, and stormwater rates; PH-2 Ordinance to amend drive-thru facilities and permitted uses; PH-3 Rezoning 515 Oxford (Delta Gamma); PH-4 Site plan for 515 Oxford (Delta Gamma); PH-5 Site plan for Ruth’s Chris.

7:55 p.m. PH-1 Ordinance to raise water, sewer, and stormwater rates.

7:56 p.m. Thomas Partridge asks that rates be revised so that the impact on the most vulnerable residents is ameliorated.

7:57 p.m. Margie Teall (Ward 4) has now arrived.

8:01 p.m. Jeff Hayner says that water rates have gone up every year. He notices it as homeowner, he says. He cites some Sierra Club information that indicates that only three Michigan municipalities operate water services as a utility, including Detroit and Ann Arbor. He questions why the fourth heavy use tier has been dropped – and wonders if it resulted from an effort to accommodate the University of Michigan. He asks the council to please keep Ann Arbor affordable.

8:01 p.m. PH-2 Ordinance to amend drive-thru facilities and permitted uses. No one speaks on this hearing.

8:02 p.m. PH-3 Rezoning 515 Oxford (Delta Gamma).

8:04 p.m. Thomas Partridge says the property needs to be accessible to disabled students.

8:05 p.m. PH-4 Site plan for 515 Oxford (Delta Gamma).

8:05 p.m. No one speaks at this public hearing.

8:06 p.m. PH-5 Site plan for Ruth’s Chris. Steve Fry, who is representing Ruth’s Chris, tells the council that he’s here if there are questions.

8:07 p.m. Thomas Partridge calls on the council to require the restaurant to be truly accessible to those who are disabled and to seniors and those who need to use public transportation. He says there should be menu items that are affordable to those with lower incomes.

8:09 p.m. Approval of minutes. Outcome: The council has approved the minutes of the previous meeting.

8:09 p.m. Consent agenda. This is a group of items that are deemed to be routine and are voted on “all in one go.” Contracts for less than $100,000 can be placed on the consent agenda. This meeting’s consent agenda includes …

8:09 p.m. Councilmembers can opt to select out any items for separate consideration. Kunselman pulls out CA-4. It’s a resolution authorizing $28,444 in sanitary sewer and water improvement charges for 3980 Platt Road.

8:09 p.m. Outcome: All items on the consent agenda except for CA-4 have now been approved.

8:10 p.m. CA-4 Authorize sanitary sewer and water improvement charges for 3980 Platt Road. ($28,444). Kunselman says the property has been under construction for some time. If this resolution is approved, he wonders if the builder will be pursuing this more diligently. Craig Hupy, the city’s public services area administrator, says that he won’t comment on the builder’s intent, but this will remove one hurdle.

8:11 p.m. Outcome: All items on the consent agenda have now been approved.

8:11 p.m. B-1 Increase water, sewer, and stormwater rates. The council will consider giving final approval to higher utility rates – for water, sewer and stormwater. Initial approval came at the council’s May 19 meeting.

8:13 p.m. Hieftje says he’s been following this for several years. And the city does a comparison with other communities. He calls the rate increases middle-of-the-pack and appropriate for a city with infrastructure the age of Ann Arbor’s. Hieftje is comparing the issue with roads – that to maintain the infrastructure, it requires money. He says the city’s departments are efficient with their use of money.

8:15 p.m. Kailasapathy asks about the four tiers of the previous approach: Why did the city move from a four-tier system to a three-tier system? Hupy says that those tiers are residential tiers. That was done in response to customers and councilmembers – and that fourth tier hit the large residential users. Powers adds that the commercial rates – including institutional uses – have a different rate structure.

8:16 p.m. Briere notes that years ago, the council used to receive the comparative analysis with other communities and asks that it be provided. Hupy will forward it to councilmembers.

8:17 p.m. Lumm reviews the elimination of the fourth pricing tier – and describes how it affected people who were watering their lawns. She describes the previous rates as involving “ungodly sums.” She notes that the rate increases will translate to $2.3 million in additional revenue. No one wants to increase prices, unless it’s absolutely necessary, and that standard is met, she says.

8:20 p.m. Kunselman asks if it will be possible to slow the rate of increase in future years. Hupy indicates he’s pessimistic that could happen for water rates, given that about half of the drinking water treatment plant might need to be replaced. Hupy expects at a minimum that water rate increases will be similar to what the city is doing for sewer rates.

8:20 p.m. Outcome: The council has voted to give final approval to the increase in water, sewer and stormwater rates.

8:20 p.m. B-2 Ordinance to amend regulations regarding drive-thru facilities and permitted uses. On tonight’s agenda is final approval of amendments to Ann Arbor’s zoning ordinance related to drive-thrus. Initial approval came at the council’s May 5 meeting. The amendments would add a definition of a “drive-thru facility” to Chapter 55 of the city code. Currently, the term used throughout the code is “drive-in,” which is not explicitly defined in the code. [For additional background, see Drive-Thru Ordinance: Final Approval above.]

8:23 p.m. Eaton asks planning manager Wendy Rampson how this change differs from the standard the city has in the code now. Rampson describes how the new standard makes it clear that all drive-thrus are subject to planning commission review for special exception use. And windows can’t face the right-of-way, she says. Eaton ventures that this means that planning commission and the council have discretion to grant the special exception use. Rampson notes that he’s correct, but adds that the planning commission has purview on the special exception use. Eaton asks what the standards are for exercise of that discretion. Rampson points to the relevant section of the code.

8:26 p.m. Eaton raises the specter of a long line of cars extending into a neighborhood. Could anything be done about that? Rampson says that the planning commission has discretion on a case-by-case basis – and the commission could deny the application. Eaton ventures that the denial would not be required. Eaton says it would be easy to write this kind of requirement into the code – to prevent that kind of impact on a neighborhood. He revises “easy” to “plausible.”

8:26 p.m. Warpehoski says he’s glad to see this going through. Changing from by-right to discretionary is a good step, he says.

8:28 p.m. Briere says that she can send councilmembers the section of the ordinance that deals with special exception uses. There’s always the risk of making one size fit all, she says. The language in the ordinance revision is flexible enough that each site can be considered on a case-by-case basis.

8:29 p.m. Eaton says he wants to send this back to the planning commission to write into the ordinance what will happen when a drive-thru window is adjacent to a residential neighborhood.

8:30 p.m. The motion in front of the council is to refer this back to the planning commission. Warpehoski says he doesn’t think this needs to be sent back to the planning commission in order for Eaton’s goal to be realized. He doesn’t want to hold up the effort now.

8:31 p.m. Hieftje says he’s siding with Warpehoski, and wants to see the council pass what is good, instead of holding it up until it is perfect.

8:33 p.m. Briere says if there are concerns about drive-thru windows operating near residential neighborhoods, they should be looked into, but says there are already a lot of protections in the code.

8:34 p.m. Outcome on Eaton’s motion to refer it back to the planning commission: It fails on a 3-7 vote with support only from Eaton, Lumm and Kailasapathy. Anglin is absent.

8:34 p.m. Taylor says he’d also like to see the additional criteria, but adds that the changes in front of the council tonight already move the ball in the right direction.

8:34 p.m. Outcome: The council has voted to give final approval to the revised regulations on drive-thrus.

8:34 p.m. B-3 Rezone 515 Oxford (Delta Gamma). The city council is being asked tonight to give final approval of a rezoning request for 515 Oxford, to convert a house for use as an annex to the Delta Gamma sorority. The main sorority house is located nearby at 626 Oxford. The council gave initial approval to the rezoning at its May 5, 2014 meeting. Later on tonight’s agenda is consideration of the site plan approval for the same project. The site plan was recommended for approval by planning commissioners on April 15, 2014. [For additional background, see Delta Gamma Site Plan, Rezoning above.]

8:36 p.m. Briere says that for many people, this is a landmark building, designed by an architect for his home and studio.

8:36 p.m. Outcome: The council has voted to give final approval to the rezoning required as part of the Delta Gamma project.

8:37 p.m. Recess. We’re in recess.

8:45 p.m. We’re back.

8:45 p.m. C-1 Rezone Green/Baxter (AAHC). At tonight’s meeting, the council will consider giving initial approval to the rezoning of three Ann Arbor Housing Commission properties. The planning commission had recommended the rezoning at its May 6, 2014 meeting. The current PL (public land) zoning for some of the properties is a vestige of the AAHC properties’ status as city-owned land.

The three sites to be considered are part of the housing commission’s major initiative to upgrade the city’s public housing units by seeking private investors through low-income housing tax credits. [For additional background, see Rezoning: Housing Commission Properties above.] First up is the AAHC property at Green/Baxter Court Apartments from PL (public land) to R4A (multi-family dwelling district). The 2-acre site is located at 1701-1747 Green Road and contains 23 apartments in four buildings and a community center. It’s in Ward 2.

8:46 p.m. Outcome: The council has voted without discussion to give initial approval of the rezoning of the AAHC property at Green/Baxter.

8:46 p.m. C-2 Rezone Baker Commons (AAHC). This would rezone the property from PL (public land) to D2 (downtown interface). The 0.94-acre lot is located at 106 Packard Street, at the intersection with South Main, in Ward 5. It includes a 64-unit apartment building.

8:48 p.m. Kunselman has a question. Rampson comes to the podium. He ventures that Baker Commons would exceed the 60-foot height limit in D2. Rampson says they don’t have an official height of the building, but agrees that it could be taller than 60 feet. She says that this would be a non-conforming structure. AAHC has been notified, and she says it’s not an issue as far as she understands. There’s not really a viable alternative zoning, she says. There was not a planning commission discussion of the possible non-conformance, Rampson tells Kunselman.

8:49 p.m. Outcome: The council has voted to give initial approval to the rezoning of the AAHC property at Baker Commons.

8:49 p.m. C-3 Rezone Maple Meadows (AAHC). This item would rezone the property from R1C (single-family dwelling district) to R4B (multi-family dwelling district). The site is 3.4 acres at 800-890 South Maple Road and contains 29 apartments in five buildings and a community center. It’s located in Ward 5.

8:49 p.m. Outcome: The council has voted to give initial approval to the rezoning of the AAHC property at Maple Meadows.

8:49 p.m. DC-1 Establish policy for distribution of proceeds from sale of Library Lane lot development rights. Tonight the city council will consider a resolution setting a policy for distribution of the proceeds from the sale of development rights on the Library Lane lot. The proposed policy would set aside 50% of the net proceeds to the city’s affordable housing trust fund. [For additional background, see Library Lot Sale Proceeds above.]

8:52 p.m. Hieftje says he wants to talk about some history. Several years ago, Michael Appel of Avalon Housing had come and talked with him about a pot of money that was available from the feds. [Appel was here earlier, but has departed.] That effort by Avalon had led to a partnership with the nonprofit Food Gatherers and the creation of Carrot Way on Dhu Varren Road.

But the funding landscape has changed a lot since then, Hieftje says. He doesn’t think anything can get done without a “pot of money” here locally. The community’s plans were set back during the Great Recession, he says. Now is an opportunity to create that pot of money, he says, but the exact way the money will be spent can be decided later.

8:55 p.m. As one example, Hieftje floats the idea of creating something like a Carrot Way – that could be located on Platt Road, where Washtenaw County’s former juvenile court facility was located. Hieftje says that the number of people in attendance reflects how well the proposal has been received. He ventures that the sale price might be around $8-10 million, which would mean the city’s general fund would receive several million dollars.

8:59 p.m. Kailasapathy says she’s heard from constituents that they’d like to see an “Arrowwood Part II” and calls it a worthy goal. But she says that there needs to be criteria set for the use of the affordable housing trust fund. It’s there to create new capital assets, she says. It’s not for recurring expenses. She wants to protect this fund for capital assets and says it shouldn’t be used as a slush fund.

Kailasapathy also has mixed feelings about the Library Lane lot. She was the one vote in the 10-1 vote on the hiring of a real estate broker to sell the development rights. She says she’ll support this resolution, and she knows millions of dollars are needed and this is just a start. She’d support 100% of a Palio Lot sale going to affordable housing, she says.

9:00 p.m. Petersen agrees with Kailasapathy that this doesn’t end the conversation about the Library Lane lot. She looks forward to the conversation. It’s more than a great cause, she says – it’s one of the council’s budget priorities and supports economic development.

9:05 p.m. Kunselman says it’s nothing more than a “teaser” resolution, as it’s non-binding. The number of $8-10 million is different from the number that Jim Chaconas had given, he notes – it seems inflated. The same people who sponsored this resolution are the same people who voted to bond for a $50 million underground parking structure, he says. “We’ve spent more money housing cars than housing people.” He points toward a June 4, 2007 vote when the council had rescinded a previous affordable housing policy as part of a land sale – because the council needed the money from the sale of the First & Washington property to build the police/courts facility. When the sale is actually done, he’ll support putting that money into affordable housing.

9:06 p.m. Taylor says he’s delighted to be a co-sponsor. He says the resolution is a moral commitment to use the money for an important community need. Local government can’t wave a magic wand to make things affordable, he says.

9:09 p.m. Briere says that after Kunselman brought forward the resolution to sell the development rights, she’s had a conversation with Hieftje about what percentage should go to affordable housing. The council’s budget committee had recommended 10% at a minimum. She cautioned that she didn’t want to see the community benefit of affordable housing used as an argument for a project on the top of the Library Lane lot that might not be a community benefit. She’s recounting the contributions that the council has made to the affordable housing trust fund – including from the former Y lot and from a strip of land associated with that parcel, as well as general fund contributions.

9:11 p.m. Briere asks if it’s political or if it’s good policy – and she concludes it’s not a political circus, saying that it’s an attempt to make good policy.

9:14 p.m. Lumm is concerned about the percentage and the timing of the decision. She’d supported the minimum 10% of the council’s budget committee, she says. This was first brought up on April 7, she says. The 50% amount is not unreasonable, she adds. But she says that the city’s general fund reserves are currently on the low side. She wouldn’t support any more than 50%. Chaconas’ estimate of $6-7 million would go down as chunks were taken away for public space, she says. Lumm is also concerned about other needs the city might have. She ventures that it might make sense to postpone again.

9:14 p.m. Lumm says she could go either way on this.

9:17 p.m. Eaton says this decision is premature. He notes that it’s not clear that the council has decided that the Library Lane lot development rights will be sold. This would put pressure on the council to sell those development rights, and cautions that it would possibly taint a decision to sell those rights. He’s also concerned about a lack of clear criteria for use of money in the affordable housing trust fund. It should be restricted to capital investments, he says. So he resists the idea of accumulating such large sums. He’d expressed those concerns when the council had sold the former Y lot. So he won’t support the resolution, he says.

9:19 p.m. Kunselman said he’d detailed some problems at a previous meeting about the bonding used for the construction of the underground parking garage. [The issue relates to how many spaces can be dedicated to private use.] He wants to know if staff now has an analysis of how many spaces are available for private use. Powers says that some of that information is still being compiled, but notes that some of the issues were addressed in a confidential memo to councilmembers from the city attorney. Powers allows that the answer to the question probably affects how valuable the property is.

9:23 p.m. Warpehoski notes that some councilmembers have wanted to lock down the amount of space designated as public open space before moving forward – and didn’t feel that it was premature to make that determination. Similarly, he doesn’t think that locking down a percentage for affordable housing is premature. Warpehoski will support the resolution.

9:23 p.m. Lumm says that her point is that things do change and that she wants to see how much money the sale actually generates.

9:24 p.m. Lumm is reviewing the changing in funding strategies by MSHDA – the Michigan State Housing Development Authority.

9:26 p.m. Kunselman proposes an amendment, saying that the Ann Arbor Housing Commission is the largest affordable housing provider in the city. He wants to stipulate that 25% of all proceeds go to the AAHC – in addition to the 50% that would go to the affordable housing trust fund.

9:28 p.m. Briere gets clarification that Kunselman that he’s not confining the AAHC allocation to just downtown AAHC properties. She notes that money from the affordable housing trust fund has been used in the past for AAHC properties. She doesn’t think this amendment is necessary.

9:30 p.m. Briere says she’s heard the concern that too much money would be used for the AAHC. Kunselman says it’s important that the AAHC be given money “straight up” without having to come ask. He doesn’t think they should have to go through hoops – saying that AAHC shouldn’t have to go before the HHSAB.

9:32 p.m. Kunselman says the council has neglected the AAHC for so many years, trying to engage in speculative development. He cites the former Y lot, Near North and Burton Commons. He points out that AAHC is also looking to increase their number of units.

9:33 p.m. Teall appreciates Kunselman’s concern for the AAHC, but doesn’t think that AAHC has been neglected. It’s good for the process that when the AAHC needs funds, they come and request the funds and explain what the funds are needed for, she says.

9:37 p.m. Hieftje agrees with Teall and Briere that the AAHC can come and ask for money when they need it.

9:37 p.m. Outcome on the amendment: The council has voted to reject Kunselman’s amendment with support only from Kunselman, Kailasapathy and Eaton.

9:39 p.m. Briere speaks in support of the resolution, saying she’ll carry the concerns she’s heard back to HHSAB. Kunselman says he won’t support this for reasons he’s already described. He noted that he’d been the one to push forward the Y lot sale and he’d also been the one to push for the sale of Library Lane lot development rights. The resolution tonight is premature. He wants the council to have concrete information instead of making “grand gestures” to appease people.

9:42 p.m. Hieftje is now unable to resist responding to Kunselman’s remarks about using public TIF (tax increment finance) dollars to support parking – saying it’s an important economic development tool. He’s giving others on the council credit for some of the good things that have happened – reacting to Kunselman’s previous remarks about his own role.

9:43 p.m. Outcome: The council has voted to approve the policy on designating proceeds from sale of development rights on the Library Lane lot. Voting for it were Taylor, Teall, Warpehoski, Hieftje, Kailasapathy, Briere and Petersen. Anglin was absent. Kunselman, Lumm and Eaton voted against it.

9:43 p.m. DC-2 Remove funding for Larcom reskin. This is a proposal to recommend to the planning commission that the capital improvements plan (CIP) for FY 2017 and FY 2018 be revised to remove the $4.4 million that is included for a city hall reskinning project. The council postponed this item from its May 19, 2014 meeting. According to a staff memo written in response to a councilmember question, reskinning of the Larcom City Hall building would mean replacing the existing exterior walls and windows of the building. The result would be new squared-off exterior, eliminating the inverted pyramid design. The new exterior would hang vertically from the sixth floor. [For additional background, see City Hall Reskinning above.]

9:45 p.m. Lumm is reading aloud a prepared statement about other capital needs in the city. She describes the reskin of the Larcom building as being something that “might be nice” and expresses skepticism that the energy savings would translate to a positive business case.

9:48 p.m. Briere says that she has a bureaucratic problem with the resolution: The council can remove the funding, but the planning commission approves the content. The resolution asks the planning commission to remove the funding. So she had to ask what would happen if the planning commission removed the Larcom reskin from the CIP. Briere wants to remove the reference to the $4.4 million, but Petersen says that it’s merely an adjectival modifier of the project.

9:50 p.m. Petersen says that the council isn’t voting on the bureaucratic issue – and she’s going to support this resolution. She’s urging the council to explore the energy improvements. Hieftje says that he’ll support this resolution, because the city doesn’t have $4.4 million lying around. He recalls efforts the city had made to find federal dollars for the energy improvements.

9:52 p.m. Kailasapathy says that she doesn’t believe that there’s “free money” even if it comes from the federal or state government, because it’s all taxpayer money. She wants the cosmetic components of the project removed. “I just want to see this gone,” she says.

9:53 p.m. Teall won’t support this tonight. Energy efficiency is and should be a priority, she says. She recognizes that she’s fighting a losing battle. She’s concerned not just about the windows, but also about the insulation in the walls. Having the project in the CIP doesn’t mean we’re spending the money, Teall notes. She’s citing a common sentiment of Kunselman that the council shouldn’t tie the hands of future councils.

9:56 p.m. Kunselman says it’s ironic that he’d tried to fight the airport runway extension by removing it from the CIP, but he wasn’t sure he wanted to adopt that approach here. He wants to know more about the windows: Did they date from the 1960s? Powers notes that this is a project in the 2017 year of the CIP. Hupy confirms that it’s a very conceptual budget at this point. He confirms that the windows are original. Kunselman ventures that the title of the project can be changed from “reskinning” to something involving energy efficiency. He doesn’t think this resolution will do anything, but now suggests an additional resolved clause to address a title that will be more limiting in scope.

9:57 p.m. Hieftje suggests a recess to craft the language Kunselman is trying to come up with.

9:57 p.m. Recess.

10:05 p.m. Samuel McMullen, Ward 3 candidate for council, has arrived at the meeting.

10:05 p.m. We’re back.

10:09 p.m. Kunselman reads aloud the additional “resolved” clause that expresses a council desire that an energy-efficiency project be developed for city hall. Lumm is now arguing against the amendment based on skepticism that there’d be adequate payback. Kunselman allows that window replacements don’t pay back in energy savings, but it does affect the comfort for building occupants. It’s also a strain on the HVAC system, he ventures.

10:12 p.m. Kunselman says that if the building is going to be around for a few more decades, it might be worth putting in some new windows. Petersen says that she’ll support Kunselman’s amendment, characterizing it as formally asking what councilmembers have been talking about. Briere says that Kunselman’s amendment suggests a more cost-effective approach to the problems with the walls and windows. Briere notes that the building has historic status now that it is older than 50 years. She’s not particularly fond of the building, though.

10:14 p.m. Eaton says that the message to the planning commission is that the council won’t support anything that has the scope of a $4.4 million project. Teall says she’ll support the amendment, but not necessarily the main question. Hieftje reiterates his support for the main question and for the amendment as well.

10:15 p.m. Outcome on the amendment: The council has voted to approve the amendment.

10:16 p.m. Lumm is happy that it appears this will pass.

10:16 p.m. Outcome: The council has voted to approve this resolution, over the dissent of Teall.

10:16 p.m. DC-3 Approve a five-year partnership agreement with Community Action Network for Operation of Bryant and Northside community centers. This is proposal for a five-year partnership between the city and the nonprofit Community Action Network. The partnership was recommended for approval by the Ann Arbor park advisory commission at its May 20, 2014 meeting. [For additional background, see Partnership with Community Action Network above.]

10:18 p.m. Taylor is reviewing the resolution. [Taylor is a council appointee to the park advisory commission.] Taylor says that CAN is uniquely qualified to provide this service. He encourages support of the resolution.

10:18 p.m. Outcome: The council has voted to approve the operating agreement with CAN for Northside and Bryant community centers.

10:18 p.m. DC-4 Approve application to MEDC for extension of LDFA term. This resolution would support the LDFA’s application to the MEDC for an extension of its current 15-year term, ending in 2018. The length of the extension would be for at least five years, and possibly as long as 15 years. [For additional background, see LDFA Extension above.]

10:21 p.m. Petersen is reviewing some points in a letter from the LDFA board to the council. First is that LDFA SmartZones are enabled by state statute. Second is that the LDFA has had its contract with SPARK audited. SPARK’s financials are now on SPARK’s website, she says. She notes that the LDFA has heard the council’s interest in high-speed telecommunications networks.

10:22 p.m. Carrie Leahy, chair of the LDFA board, has come to the podium to answer questions. She tells Lumm that the most serious conversations about who might be the satellite are Adrian and Brighton. She says that Flint is no longer on the table. She’s explaining that a satellite LDFA would set up its own TIF capture.

10:24 p.m. Lumm wants to know what the impact would be on the Ann Arbor Ypsi SmartZone. Leahy says the Ann Arbor Ypsi SmartZone funds wouldn’t be spent outside of Ann Arbor and Ypsi.

10:27 p.m. Hieftje ventures that Lumm is raising a good question: Why does the MEDC want to do this? SPARK CEO Paul Krutko says that MEDC worked with the legislature to see how to allow the LDFA program to continue. Currently there are 15 SmartZones, each with an opportunity to extend for five years. Three of the 15 have the chance to extend for 15 years. One of the three is already decided – Marquette. There’s a deadline set by the state, Krutko says, of June 30 and Sept. 30. The effort reflects the state’s emphasis on regional cooperation.

10:29 p.m. Leahy stresses that tonight’s resolution is just the first step. The application will then go to the MEDC. Then it will come back to the council. Krutko says that the LDFA wanted to come to the council early, because the other communities have a lot of steps to complete. Both of the communities still on the table are very interested, Krutko says.

10:32 p.m. Kailasapathy is returning to the topic of “windfall” gains that the LDFA had realized due to increased valuation in the TIF district. She’d proposed a budget amendment on May 19, when the council adopted next year’s budget, that would have reserved some of that windfall for construction of a high-speed telecommunications network. That amendment hadn’t succeeded. Kailasapathy wants to know if the LDFA can provide audited job creation numbers.

10:34 p.m. Leahy tells Kailasapathy that the LDFA has heard the council’s interest in infrastructure improvements and has begun to reach out to other communities and the MEDC to get more information about that.

10:35 p.m. Leahy says that the LDFA does not ask an independent party to verify the job creation numbers in an audit. “Why don’t you just do it?” Kailasapathy asks. Leahy says that the LDFA board has not had a meeting since the last council meeting.

10:37 p.m. Eaton is getting clarification from Leahy about the council’s options for denying an extension in the future. It sounds like the council could opt to extend only for five years, even if the MEDC approved an extension for 15 years.

10:38 p.m. Lumm says she doesn’t see any justification not to apply, because it would mean sending money elsewhere in the state.

10:42 p.m. Hieftje says he’s fully in support of this. He says that the city is interested in the best performance it can get out of Ann Arbor SPARK. Hieftje says that if the LDFA were to cease to exist, it would have no impact on the School Aid Fund.

Taylor is delighted to support this resolution. Both Ann Arbor SPARK and the LDFA do an excellent job, he says. About the drive for metrics, he says it’s the council’s obligation to oversee the money that is spent. It’s important to note, he says, that job creation statistics are not a science. It’s multivariable, he says.

10:46 p.m. Kunselman says he’s sitting on the fence. He doesn’t understand why the five-year extension is being discussed now five years ahead of the expiration of the LDFA. Kunselman expresses skepticism about the state’s reimbursement of the School Aid Fund, saying that the state has consistently underfunded the School Aid Fund. Powers quips that CFO Tom Crawford can’t speak for the governor except for the fact he’s not wearing a tie. Krutko corrects Kunselman’s understanding – pointing out that we’re only three years away from the expiration of the current LDFA.

10:47 p.m. Crawford is clarifying for Kunselman how the state reimburses the School Aid Fund.

10:47 p.m. Outcome: The council has voted to support the LDFA’s application for the extension of its term, over dissent from Kailasapathy.

10:47 p.m. DC-5 Approve Bravo Brio Restaurant Group Inc. for a new Resort Class C liquor license. The restaurant is located at 760 Briarwood Circle.

10:49 p.m. Lumm is reporting out the liquor license review committee’s work on considering these license applications.

10:49 p.m. Outcome: The council has voted to recommend approval of Bravo Brio’s application for a liquor license.

10:49 p.m. DC-6 Approve P.F. Chang’s China Bistro Inc. for a new Resort Class C liquor license. The restaurant is located at 720 Briarwood Circle.

10:49 p.m. Outcome: The council has voted to recommend approval of P.F. Chang’s application for a liquor license.

10:50 p.m. Closed Session. The council has voted to go into closed session to discuss pending litigation.

11:30 p.m. We’re back.

11:30 p.m. Recess. The council immediately takes a break.

11:36 p.m. We’re back.

11:38 p.m. DC-7 Community Events Fund Disbursements. This allocates $1,972 from the FY 2014 Community Events Fund to the African-American Downtown Festival scheduled for June 7, 2014.

11:38 p.m. Outcome: The council has unanimously approved the allocation.

11:39 p.m. DB-1 Approve 515 Oxford (Delta Gamma) site plan. This is the same project for which the zoning was given final approval earlier in the meeting.

11:39 p.m. Outcome: The council has voted to approve the Delta Gamma site plan.

11:39 p.m. DB-2 Approve Ruth’s Chris Site Plan This is the site plan for a new Ruth’s Chris Steak House on Fourth Avenue in downtown Ann Arbor. The planning commission recommended approval at its April 1, 2014 meeting. The site plan calls for renovating the single-story building at 314 S. Fourth Ave. and putting up a 1,943-square-foot second-floor mezzanine addition over the front part of the existing building. The current structure is 8,024 square feet, and most recently housed the Dream Nite Club, which closed in 2012. The project is estimated to cost $2.2 million. [.pdf of staff report on Ruth's Chris site plan] [For additional background, see Ruth’s Chris Site Plan above.]

11:39 p.m. Outcome: Without discussion, the council has voted to approve the Ruth’s Chris site plan.

11:39 p.m. DS-1 Approve amendment No. 4 to the contract with CDM Smith Michigan Inc. for the footing drain disconnect (FDD) program. This item is an extension of a contract with CDM Smith Inc. for continued work as part of Ann Arbor’s footing drain disconnection (FDD) program. It had been postponed at the council’s May 5, 2014 meeting.

In the interim, the dollar amount of the contract extension has been reduced from $748,106 to $143,440. That reflects a reduction in the scope of the work. The original May 5 resolution called for the following activities to be funded: citizen support ($36,928); FDD citizens advisory committee meetings ($24,180); information management for sump pump monitors ($93,707); developer offset mitigation (DOM) program support; ($95,213); and multi-family FDD implementation ($498,005). No longer a part of the scope of work in the revised June 2 resolution are the FDD citizens advisory committee meetings, information management, or the multi-family FDD implementation. [For additional background, see FDD Program Contract Extension above.]

11:41 p.m. Eaton says he’s glad to see that the amount in the contract has been pared down. But he does not think the city should be spending money on the DOM, saying that the DOM should be funded by the developers. Residents in Ward 4 have expressed concern about the quality of work done by CDM Smith, Eaton says. When the work isn’t done right, water can freeze, he adds.

11:43 p.m. Eaton contends that about 1/3 of the houses that have had FDDs done don’t have a proper air gap in the discharge pipe. Eaton doesn’t think the city should continue to spend money to this consultant, when it should be funded by the developers, not taxpayers.

11:43 p.m. Teall says she doesn’t share the same level of distrust of the consultant that Eaton does. She allows that she’s heard from constituents who’ve had these issues. She says that the council hears a lot from only a few constituents.

11:46 p.m. Hupy is now at the podium. Teall asks him to respond to Eaton’s remarks. Hupy says there are simply not 1/3 of the houses with FDDs that don’t have proper air gaps. He says that the city is working through various complaints. Out of the nearly 600 installations the city has done, only five were frozen this past winter, he says. So the issue is not as widespread as it’s been reported, Hupy says. The city is now looking at solving the root causes of any problems, he notes.

11:48 p.m. Hupy describes what CDM Smith does: When a developer identifies a candidate for an FDD, they go in and verify that it’s a viable candidate and also verify that the work was done properly. Hupy doesn’t know why the program is set up so that the city pays for the administration of the DOM program. Hupy says that going forward, that would be an obvious aspect of the program to consider changing.

11:51 p.m. Teall asks what the impact on city staff would be if the resolution were not approved. Nick Hutchison says it would require about half the time of two full-time employees – that is, one FTE. And some workloads would need to be moved around. Summer road projects would need to be managed with outside resources, he says. Teall characterizes the situation as substituting different consultancies for the consultancy with CDM Smith. Teall says she’ll support the resolution. She’s dismayed by some of the communication that the council has been receiving from some people. There hasn’t been a balance from other members of the citizens advisory committee, she says.

11:53 p.m. Eaton says that his 1/3 figure was based on the results of a survey done by the committee – Question 18. Hupy says that residents who reported that don’t understand what they’re looking at. Hupy adds that when the city inspects those situations, they don’t find 1/3 with inadequate air gaps.

11:55 p.m. Back and forth between Eaton and Hupy ensues. Eaton ventures that the survey documents a great deal of dissatisfaction. Hupy says that a question about whether you’d recommend the procedure to a neighbor had a 70% positive response.

11:57 p.m. Warpehoski says he understands and hears the concerns. He’s also a satisfied participant in the DOM program, he says. For him, it had worked well – as part of a basement renovation program. CDM Smith had answered his questions and worked with his general contractor. Warpehoski says that the council has approved site plans that have development agreements requiring FDDs, so he thinks the council needs to approve this resolution.

11:59 p.m. Lumm thanks Eaton for his work on this issue. She’s glad to see the reduced amount in the contract. The recommendation from the committee won’t be coming back until the fall, she notes. She doesn’t think it makes sense to stop all the development projects that are currently in process.

12:01 a.m. Kunselman gets confirmation that the DOM program is voluntary from the point of view of the homeowner.

12:03 a.m. Kunselman asks if there are houses in the queue for the DOM. Yes, about 13. But there are about 350 that are on the books as required. About 150-160 are at some point in the process. Kunselman asks if anyone who is paying $100 a month instead of doing an FDD. Yes, there are two.

12:04 a.m. Hieftje says he appreciates the light that Eaton’s work has shone on the issue. But the consequences of not approving this resolution would be onerous, he says.

12:06 a.m. Briere notes that the DOM program does not mandate FDDs, but rather that the flow mitigate in some way. Hupy confirms that. She wants to know if the city encourages alternatives to FDDs. Hupy says that the city reviews any ideas that developers have. He cites how some developers own enough fixtures that they can reduce flow in those and achieve the needed offset – e.g., Ann Arbor Public Schools and University of Michigan.

12:07 a.m. Briere asks if there’d be a benefit to having developers pay cash in lieu. Hupy isn’t sure.

12:08 a.m. Briere notes that some alternatives will need to be found, because there’s only a finite number of footing drains. Hupy agrees that there will be a point of diminishing returns.

12:09 a.m. Outcome: The council has voted to approve the CDM Smith contract for FDD work, over dissent from Eaton and Kailasapathy.

12:09 a.m. DS-2 Resolution No. 2 for special assessment district for Stone School Road reconstruction project. As part of a road reconstruction project for Stone School Road, the city is planning to install a sidewalk on the west side of the road. To fund the sidewalk construction, part of the cost will come from a special assessment of property owners. This resolution sets the roll of properties to be special assessed. [For additional background, see Stone School Road Sidewalk Special Assessment above.]

12:10 a.m. Kunselman says he’s very excited that this project is moving forward. He’s also excited that about 80% of the cost of the special assessment is being covered by public dollars.

12:10 a.m. Outcome: The council has voted to set the assessment roll for the Stone School sidewalk special assessment.

12:10 a.m. DS-3 Approve contract with Parsons Brinckerhoff Michigan Inc. South State Street transportation corridor study. This item would approve a $299,911 contract with Parsons Brinckerhoff Michigan Inc. to conduct a study of the South State Street transportation corridor. The 1.3 mile long area of the study extends from the intersection of Ellsworth Road and South State Street north to the intersection of Oakbrook Drive and South State Street. [For additional background, see State Street Transportation Corridor Study above.]

12:10 a.m. Outcome: The council has voted to approve the contract with Parsons Brinckerhoff for the State Street transportation corridor study.

12:10 a.m. DS-4 Adopt the City of Ann Arbor urban and community forest management plan. This item would adopt the first comprehensive plan for managing Ann Arbor’s urban forest. The Ann Arbor park advisory commission recommended adoption of the plan at its meeting on April 15, 2014. [.pdf of Urban & Community Forest Management Plan] [For additional background, see Urban Forest above.]

12:12 a.m. Lumm says that it represents a huge amount of work. She’s thanking those who were responsible for its development. She says she agrees that the urban forest is a defining and highly-valued characteristic of the community.

12:14 a.m. Taylor says that the plan was presented to the park advisory commission a while ago. [He's a council appointee to the PAC.] PAC was extremely impressed with the plan, he says.

12:14 a.m. Outcome: The council has voted to adopt the urban forestry plan.

12:14 a.m. DS-5 Accept a Fair Food Network grant for the Ann Arbor Farmer’s Market. This item would approve an agreement with the Fair Food Network to continue administering the Double Up Food Bucks program at the Ann Arbor farmer’s market. Approval would entail acceptance of $32,000 in funding. [For additional background, see Grant to Farmers Market for Food Stamp Recipients above.]

12:14 a.m. Outcome: The council has voted to accept the Fair Food Network grant.

12:15 a.m. DS-6 Amend Ann Arbor City budget for fiscal year 2014. This resolution would amend the current fiscal year’s budget (FY 2014) to ensure that expenditures do not exceed appropriated amounts. The budget amendment will ensure compliance with Public Act 621 of 1978. The total requested general fund budget amendment is $60,000. For all other funds, the amendment to be considered by the council on June 2 totals $310,000. [For additional background, see Amend Current Year's Budget above.]

12:15 a.m. Outcome: The council has voted to amend the FY 2014 budget.

12:15 a.m. Communications from council. Teall notes that Cinetopia is starting. It runs from June 4-8 at the Michigan Theater in Ann Arbor and also in Detroit.

12:16 a.m. Hieftje notes that the Ozone House celebrated its 45th anniversary, and there was a recent celebration for the 50th anniversary of the city’s Elizabeth Dean trust fund.

12:16 a.m. Clerk’s report. Outcome: The clerk’s report has been received.

12:16 a.m. Public comment. There’s no requirement to sign up in advance for this slot for public commentary.

12:18 a.m. Thomas Partridge salutes the council for passing the resolution on the distribution of proceeds from the sale of development rights for the Library Lot. It would have been better to have dedicated 100% of the money to affordable housing instead of 50%, he adds. Partridge says we need a new governor. He calls for the election of Democrat Mark Schauer.

12:22 a.m. Mark Koroi says he’s here to address the “debacle” that had occurred in the Bob Dascola lawsuit. The judge had excoriated the city in his opinion, and the city would now be paying tens of thousands of dollars in attorney’s fees, he notes. Koroi says that Jack Eaton has stated publicly that the council had not given authorization for the city attorney’s action, so who did? Koroi says he’s endorsing McMullen in the race, but felt that Dascola should not have been denied access to the ballot.

12:25 a.m. Caleb Poirier is addressing the council on the challenge of dealing with the homeless population and those who are living under bridges. There are some unmet needs: toileting and trash removal. It’s the desire of his nonprofit to deal with the trash. He has a two-part request – to get trash into city dumpsters and to keep fecal matter out of the river. So he’d support port-a-potties at those locations.

12:28 a.m. Elizabeth Kurtz says she’s presentable because she just got her hair cut. Having lived on the streets for about 14 months, she’d been able to get into temporary housing. Generally she has little access to laundry and bathing facilities, she says. Despite the council’s resolution tonight, there’s little attention to immediate needs, she says. She describes herself as living a Third World existence. She was part of a Detroit Public Schools layoff – up until then, she was part of the middle class. We’ve got to get our priorities straight, she says.

12:31 a.m. Judy Bonnell-Wenzel is lamenting the fact that a friend of hers, Alan Haber, is away for the summer and is not here to speak in favor of a public commons on the Library Lot. She also says that people who have no place to sleep and unmet basic needs have no democracy. She worries about gentrification – pushing people out. She and her husband pay $527 a month for their housing, she says.

12:31 a.m. Adjournment. We are now adjourned. That’s all from the hard benches.

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

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June 2, 2014: City Council Meeting Preview

Dave Askins — Fri, 30 May 2014 01:21:06 +0000

Screenshot of Legistar – the city of Ann Arbor’s online agenda management system. Image links to the June 2, 2014 meeting agenda.

Also related to land use, three Ann Arbor housing commission properties will be given initial consideration for rezoning. A site plan and associated rezoning for the Delta Gamma house will be given final consideration. Also up for final consideration is a revision to the ordinance regulating drive-thrus. And the site plan for a new Ruth’s Chris restaurant to be located downtown on South Fourth Avenue will be given consideration.

A rate increase for Ann Arbor water, sewer and stormwater rates is on the June 2 agenda for final approval.

Amend Current Year’s Budget

The total requested general fund budget amendment is $60,000. For all other funds, the amendment to be considered by the council on June 2 totals $310,000.

FDD Program Contract Extension

This amendment would provide the services needed to bridge the gap until the SSWWE [Sanitary Sewer Wet Weather Evaluation] Project recommendations have been made. Presently, the anticipated timeline for completion of the SSWWE Project is in the autumn of 2014. That does not allow sufficient time to issue a new RFP, collect and review proposals, award a contract, and bring a new consultant up to speed to manage the remaining FDD and DOM work outlined above. Existing City staff does not currently have the available resources or expertise to perform the inspections required for the DOM program.

The previous three iterations of the CDM contract totaled about $3.6 million. The money for these contracts is drawn from the city’s sewer fund.

Urban Forest

Map of selected tree variety by The Chronicle from city of Ann Arbor 2009 survey. Image links to dynamic map hosted on geocommons.com

Implement proactive tree maintenance program.
Strengthen tree planting and young tree maintenance programs.
Monitor threats to the urban and community forest.
Increase landmark/special tree protections.
Secure adequate city‐funding for urban forestry core services.
Develop street tree master plans.
Pursue grant and philanthropic funding opportunities.
Strengthen forestry related ordinances.
Update tree inventory and canopy analysis.
Develop urban forest best management practices.
Increase urban forestry volunteerism.
Strengthen relationships with outside entities who impact trees.
Implement community outreach program.
Obtain the best use of wood from removed trees.
Create city staff working groups to coordinate projects that impact trees.
Engage the city’s Environmental Commission in urban and community forestry issues.
Review the urban forest management plan periodically and update as needed.

City Hall Reskinning

Library Lot Sale Proceeds

State Street Transportation Corridor Study

Besides Parsons Brinckerhoff, the other bidder for the work was DLZ.

Stone School Road Sidewalk Special Assessment

The council will be asked to approve a resolution directing the city assessor to set the roll of properties to be assessed.

Rezoning: Housing Commission Properties

Rezoning is recommended for the following public housing sites, two of which are currently zoned as public land:

Baker Commons: Rezone public land to D2 (downtown interface). The 0.94-acre lot is located at 106 Packard Street, at the intersection with South Main, in Ward 5. It includes a 64-unit apartment building.
Green/Baxter Court Apartments: Rezone public land to R4A (multi-family dwelling district). The 2-acre site is located at 1701-1747 Green Road and contains 23 apartments in four buildings and a community center. It’s in Ward 2.
Maple Meadows: Currently zoned R1C (single-family dwelling district), the recommendation is to rezone it as R4B (multi-family dwelling district). The site is 3.4 acres at 800-890 South Maple Road and contains 29 apartments in five buildings and a community center. It’s located in Ward 5.

For additional background on the AAHC process of renovating its properties, see Chronicle coverage: “Public Housing Conversion Takes Next Step.”

Delta Gamma Site Plan, Rezoning

Aerial view showing the location of 515 Oxford, south of Geddes and at the eastern end of South University.

The proposal for a renovation would accommodate a maximum of 20 residents, including a required resident manager.

Drive-Thru Ordinance: Final Approval

Currently, drive-thrus are allowed in C3 districts without a special exception use. They are allowed as special exception uses in the C2B district.

When considering whether to grant a special exception use – which does not require additional city council approval – the planning commission considers these issues:

1. Is the location, size and character of the proposed use compatible with the principal uses of the district and adjacent districts? Is it consistent with the Master Plan? Is it consistent with the surrounding area? Will it have any detrimental effects to the use or value of surrounding area, or the natural environment?

2. Is the location, size, character, layout, access and traffic generated by the use hazardous or inconvenient or conflicting with the normal traffic of the neighborhood? Is off-street parking safe for pedestrians? Do the necessary vehicular turning movements block normal traffic flow? Are any additional public services or facilities needed by the use, and will they be detrimental to the community?

3. Is the maximum density and minimum required open space at least equal to the standards normally required by the Zoning Ordinance for the district?

The planning commission recommended the changes at its April 1, 2014 meeting.

Ruth’s Chris Site Plan

Proposed facade of Ruth’s Chris Steak House at 314 S. Fourth Ave.

This would be the first Ruth’s Chris Steak House in Ann Arbor. The chain is based in Florida, with locations nationwide.

Utility Rates

The council will consider giving final approval to higher utility rates – for water, sewer and stormwater. Initial approval came at the council’s May 19 meeting.

Water consumption for a typical single family is assumed at 19 units per quarter.

History of city of Ann Arbor water rates. The city converted to a tiered system 10 years ago in 2004, based on usage. The 2015 amount is proposed.

Grant to Farmers Market for Food Stamp Recipients

The city of Ann Arbor has received Double Up Food Bucks grant funding since 2010.

Partnership with Community Action Network

The staff memo also noted that a request for proposals (RFP) was not issued for this work, because CAN has been the sole respondent to the previous two RFPs and the city is satisfied with its work.

LDFA Extension

In FY 2013, the total amount captured by the LDFA was $1,546,577, and the current fiscal year forecast is for $2,017,835. About the same amount is forecast for FY 2015.

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Footing Drain Lawsuit Back to State Court

Dave Askins — Thu, 29 May 2014 01:41:15 +0000

A lawsuit filed against the city of Ann Arbor over its footing drain disconnection ordinance will be remanded from federal court back to Michigan’s state court system – over the objection of the city of Ann Arbor. The indication came at an 11-minute hearing on Wednesday May 28, 2014 before federal district judge Avern Cohn at the Theodore Levin U.S. Courthouse in downtown Detroit.

Theodore Levin U.S. Courthouse in downtown Detroit.

The lawsuit had originally been filed against the city three months ago, on Feb. 27, in Washtenaw County’s 22nd circuit court. There it had been assigned to judge Donald Shelton. On March 17, about two weeks after it was filed, the city removed the case from the state court to the federal court.

But the plaintiffs in the case – Ann Arbor residents who had their footing drains disconnected from the sanitary sewer system under the city’s ordinance – filed a motion for remand back to the 22nd circuit court. At the Wednesday hearing, Cohn indicated that he’d be granting the motion for remand.

By way of background, the ordinance that’s being challenged was enacted in 2001. It establishes a program under which property owners can be required to disconnect their footing drains from the city’s sanitary sewer system. Its intent is to diminish the risk of sanitary overflows into the Huron River and of sanitary sewage backups in homeowners’ basements.

The lawsuit – Yu v. City of Ann Arbor – claims the city’s FDD ordinance violates: (1) the Michigan state law setting forth requirements for a government to take private property for public use; (2) the Michigan state constitutional prohibition against taking private property for public use without just compensation; (3) the corresponding U.S. constitutional prohibition against taking private property, which is a Fifth Amendment claim; and (4) the prohibition against violating the federally protected rights of others, which is a claim under 42 U.S. Code Section 1983.

In broad strokes, Cohn summarized all of the plaintiffs’ claims against the city as reducible to claims about inverse condemnation – taking of private property without just compensation. The plaintiffs contend that the city’s ordinance requiring disconnection of footing drains from the sanitary sewer system – and its associated installation of a sump with a pump – is a physical occupation of a homeowner’s property with equipment not belonging to the homeowner.

Inverse condemnation is a kind of claim for which remedies in the state courts must first be exhausted, before moving to federal court. And although the complaint cites federal law in its causes of action, Cohn was not willing to sever the state claims from the federal claims or to stay the federal claims in the complaint.

Because all the claims were about inverse condemnation, Cohn said, “All I know is that I don’t have subject matter jurisdiction until there’s an exhaustion of remedies under state law. I’m going to have to remand it – I can’t keep it. The only way they can exhaust their remedies is in Washtenaw County circuit court.”

Cohn made his position so clear in his initial remarks that the plaintiffs’ counsel – Dan O’Brien of Woods Oviatt Gilman in Rochester, New York – was initially content not to offer oral argument: “I’ll rely on my papers, your honor.”

So assistant city attorney Abigail Elias, who represented the city at the May 28 hearing, was arguing before a judge who’d essentially already indicated how he would rule. She still made a bid to convince Cohn at least to dismiss the federal claims without prejudice, if he was going to remand the state claims back to the circuit court. She opened her remarks by saying, “I understand generally it’s an uphill battle…” but Cohn interrupted, “Not generally. Specifically.”

In the course of the short hearing, Cohn was not generous in his assessment of the city’s legal briefs that had been filed, calling them “jurisprudential legerdemain.”

For previous Chronicle coverage, see “Lawsuit Filed on City Footing Drain Program” and “Backups: Lawyers, Sewers, Pumps.”

The hearing is reported below in more detail.

May 28, 2014 Hearing

Plaintiffs in the case are Ann Arbor residents John Boyer, Mary Jean Raab and Anita Yu. They are represented by attorneys Dan O’Brien, who’s chair of the litigation department at Woods Oviatt Gilman in Rochester, New York; Irvin Mermelstein, a local Ann Arbor attorney in private practice; and Mark Koroi, a Plymouth attorney. All three attorneys attended the hearing. O’Brien handled the oral argument.

Representing the city of Ann Arbor at the hearing was assistant city attorney Abigail Elias.

The hearing was before federal judge Avern Cohn of the U.S. District Court Eastern District of Michigan. Cohn was appointed to the bench during the Carter administration in 1979, and assumed senior status in the federal court system in 1999.

May 28,2014 Hearing: Proceedings

The hearing began at 2:15 p.m. as Cohn told the parties: “I’ve read your papers and I’ve read the complaint carefully.” He commented on the “amount of paper” that’s been generated in this case, and ticked through the seven causes of action in the complaint. He noted that some of the causes of action weren’t really causes of action – for example, a request for declaratory relief. But Cohn summarized them all as arising from one basic cause of action under the Michigan constitution: The plaintiffs were making inverse condemnation claims, Cohn concluded.

All of these claims can be adjudicated in state court – because there is a remedy for the claims under state law, Cohn said. If the plaintiffs prevail under state law, he added, “that’s the end of it. Under Williamson, the case doesn’t belong here.”

By way of background, the Williamson case Cohn cited in his remarks was a Supreme Court case – Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City (1985). It held that inverse condemnation cases are not appropriate for federal review until there is a final determination in state court.

Cohn then commented on the briefs filed in the case by the city of Ann Arbor, calling them “jurisprudential legerdemain.”

After ending his commentary, Cohn gave attorneys on both sides the chance to respond. When asked if he wanted to address the court, plaintiffs’ counsel Dan O’Brien told Cohn: “I’ll rely on my papers, your honor.”

Abigail Elias, representing the city of Ann Arbor, then stepped to the podium to address the court. “I understand generally it’s an uphill battle…” but Cohn interrupted, “Not generally. Specifically.”

Elias cited England v. La. State Bd. of Med. Exam’rs (1964) in support of her contention that the court had an obligation to adjudicate the federal claims over which it has jurisdiction. The plaintiffs had not made an “England reservation” with the state court, Elias said. “That troubles me,” she added.

By way of background, the federal practice manual for legal aid attorneys from the Shriver Center characterizes an “England reservation” as follows:

An express England reservation has three elements: (1) explicit expression to the state tribunal of an intent to return to federal court in the wake of an adverse state determination, if any; (2) explicit notification to the state tribunal of the federal questions that would be reserved, and (3) an absence of voluntary litigation in the state court by the reserving party of the federal questions that would be preserved for federal trial.

Elias suggested that the federal claims in the Yu v. City of Ann Arbor case could be dismissed by Cohn without prejudice.

Cohn, who’d been shaking his head in disagreement while Elias spoke, told her that he wouldn’t sever the state claims from the federal claims – and he wouldn’t stay the federal claims. If the plaintiffs want to assert federal claims in state court, they can try to do that. Regarding the claims of inverse condemnation, the federal court doesn’t have subject matter jurisdiction, he said, until the plaintiffs have exhausted all remedies under state law.

Theoretically, Cohn noted, he could remand the state claims and stay the federal claims. But he hadn’t seen cases where that had been done. “I’m going to have to remand it – I can’t keep it,” Cohn said. The only way that the plaintiffs can exhaust their remedies is in Washtenaw County circuit court, he said.

O’Brien then spoke briefly. This case, O’Brien said, is “on all fours” with another recent case handled by the same court [Oakland 40, LLC v. City of South Lyon (2011)]. In that case, an inverse condemnation claim had been removed from the state court to the federal court, and the federal court had granted a motion for remand back to the state court. “The same thing should happen here,” O’Brien said. The plaintiffs had not brought the case in federal court because of Williamson, he noted.

Elias then appeared to attempt to secure a clarification about whether the plaintiffs were in fact pleading involuntary servitude – a federal claim. Cohn told Elias he didn’t see such a pleading in the briefs. Elias contended such a claim seemed to be present in the complaint – in a reference to homeowners having to work without pay [to maintain their sump pumps].

Cohn then told Elias that when the case was remanded to state court, the city of Ann Arbor could move to dismiss the federal claims. Cohn said he didn’t know why the plaintiffs had chosen to plead the federal causes of action. Cohn said he read the complaint as about inverse condemnation “and nothing more.”

The hearing, which lasted about 11 minutes, ended at 2:26 p.m.

Briefs Filed

Briefs filed in the case so far include the following:

02.27.14 [.pdf of Yu v. City of A2: Complaint]
02.27.14 [.pdf of Yu v. City of A2: Motion for Preliminary Injunction]
03.17.14 [.pdf of Yu v. City of A2: Notice of Removal]
03.24.14 [.pdf of Yu v. City of A2: Motion to Dismiss]
04.03.14 [.pdf of Yu v. City of A2: Motion for Remand]
04.17.14 [.pdf of Yu v. City of A2: Response to Motion for Remand]
04.24.14 [.pdf of Yu v. City of A2: Reply to Response on Remand]

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CDM Smith $750K Contract Extension Delayed

Chronicle Staff — Tue, 06 May 2014 01:25:23 +0000

A $748,106 contract extension with CDM Smith Inc. for continued work as part of Ann Arbor’s footing drain disconnection (FDD) program has been postponed by the city council until June 2, 2014. City council action to postpone the contract extension came at its May 5, 2014 meeting.

In 2012, the city’s program to disconnect footing drains from the sanitary sewer system was suspended by the council in some areas of the city. Specifically, it was suspended in the Glen Leven and Morehead (Lansdowne neighborhood) areas. The program was allowed to continue in other geographic areas and as part of the city’s developer offset mitigation (DOM) program. The DOM requires owners of new developments to complete a certain number of FDDs to offset the additional flow in the sanitary system caused by new construction.

The CDM contract drew scrutiny because the city is currently undertaking a sanitary sewer wet weather evaluation (SSWWE) study. It’s supposed to yield a recommendation about whether to continue with the FDD program, and if so, in what form. In addition, the city’s ordinance, which requires property owners to undertake FDDs, was challenged in a lawsuit filed earlier this year. That case is pending as the city has removed the case from state to federal court and the plaintiffs are seeking to remand it back to state court. A hearing is scheduled for May 28 on the question of remand. Questions have been raised about the quality of work performed by CDM.

City administrator Steve Powers offered to set up meetings between staff and councilmembers in advance of the council’s May 5 meeting to discuss the resolution. The resolution is perceived by some as an indicator that the sanitary sewer wet weather evaluation (SSWWE) would have a forgone conclusion that the FDD should continue. However, at more than one meeting of the advisory committee that’s working on the study, staff and consultants have indicated that if the FDD were to continue at all, it would almost certainly not continue in its current form.

And the staff memo accompanying the resolution on the contract addressed possible questions by stressing that until the SSWWE is completed and a determination is made on the city’s approach to wet weather sanitary sewer flows, the services of CDM will be required in order to continue the existing FDD and DOM programs. It’s expected that this contract would cover services that are needed through January 2015.

This item on the May 5 agenda would have approved the fourth contract extension of an original contract with CDM dating back to 2006. This amendment to the CDM contract includes: citizen support ($36,928); FDD citizens advisory committee meetings ($24,180); information management for sump pump monitors ($93,707); developer offset mitigation program support; ($95,213); and multi-family FDD implementation ($498,005). When the item appears on the June 2 agenda it’s possible that some of those items might not be included.

The previous three iterations of the CDM contract totaled about $3.6 million. The money for these contracts is drawn from the city’s sewer fund.

The proposed contract extension drew criticism during public commentary on May 5 from Frank Burdick, a Ward 4 resident who urged the council to reject it. Council deliberations on this item are included as part of The Chronicle’s live updates from the meeting.

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

Lawsuit Filed on City Footing Drain Program

Dave Askins — Fri, 28 Feb 2014 13:54:24 +0000

A lawsuit has now been filed in Washtenaw County’s 22nd Circuit Court challenging the legal foundation of the city of Ann Arbor’s footing drain disconnection (FDD) ordinance.

A lawsuit has been filed in the 22nd Circuit Court challenging the constitutionality of the city of Ann Arbor’s footing drain disconnection program. (Illustration by The Chronicle.)

The ordinance was enacted in 2001. It establishes a program under which property owners can be required to disconnect their footing drains from the sanitary sewer system. Its intent is to diminish the risk of sanitary overflows into the Huron River and of sanitary sewage backups in homeowners’ basements.

In connection with that lawsuit, a motion for a preliminary injunction has also been filed, asking that the court order the city immediately to stop enforcement of its ordinance.

[FDDP-Complaint-Feb.27.2014-OCR] [FDDP-Motion-Feb.27.2014-OCR]

In September 2012, the Ann Arbor city council already took action partially to suspend the FDD program. That council decision of nearly 18 months ago came not in response to a formal legal action, but rather coincided with complaints from residents in the southeastern part of the city.

Then about a year ago, in February 2013, the city authorized a contract with an engineering firm to undertake a sanitary sewer wet weather evaluation (SSWWE) – in part to determine the impact of the FDD program to date. At a public meeting on the SSWWE held two weeks ago, on Feb. 6, 2014, the future status of the FDD program was portrayed as dubious: Even if the SSWWE study eventually identified an ongoing risk of sewage backups in Ann Arbor basements, the FDD would probably not continue “as is.”

The lawsuit claims the city’s FDD ordinance violates: (1) the Michigan state law setting forth the requirements for a government to take private property for public use; (2) the Michigan state constitutional prohibition against taking private property for public use without just compensation; (3) the corresponding U.S. constitutional prohibition against taking private property, which is a Fifth Amendment claim; and (4) the prohibition against violating the federally protected rights of others, which is a claim under 42 U.S.C. Section 1983.

The lawsuit asks that the court declare the FDD ordinance is “unconstitutional, on its face and as implemented.”

Background leading up to the filing, as well as a description of the filing, has been tracked on a2underwater.com. Mermelstein is the resident agent for a2underwater, LLC.

The lawsuit was filed on Feb. 27, 2014. It has been assigned to judge Donald Shelton.

Some of the legal theories on which the lawsuit is based have already surfaced in correspondence that’s become public. And some aspects of the city’s potential defense against a lawsuit may have already been described publicly by assistant city attorney Abigail Elias. That description came at a recent meeting of a citizens advisory committee that is supposed to make a recommendation sometime in the summer of 2014 on the future of the FDD program. For additional background on the topic of the footing drain disconnection program, see Chronicle coverage: “Backups: Lawyers, Sewers, Pumps.”

Physical Taking: Whose Pump Occupies the Space?

One aspect of the unconstitutional takings legal theory, in broad strokes, is that the city is occupying space in a homeowner’s basement – without compensation or due process for such an occupation. The theory is based in part on the Loretto v. Teleprompter Manhattan CATV Corp. et al U.S. Supreme Court case, which found that a required installation of cable wiring amounted to an unconstitutional taking. In the case of Ann Arbor’s footing drain disconnection program, it’s the installation of a sump and a pump that allegedly amounts to an illegal physical occupation.

From the complaint:

The mandatory disconnection of the Plaintiff’s footing drains and the forced installation of sump pumps and related equipment constituted a physical intrusion by the City, or others acting on its behalf or in its stead, resulting in a permanent physical occupation of the Plaintiffs’ property and a significant interference with the Plaintiffs’ use of their property.

Where does a sump and a pump fit into the requirement that footing drains be disconnected from the sanitary sewer? Before a disconnection, rain water flowed away from the foundation of a house through forces of gravity into the sanitary sewer. So after disconnection, that water needs to be managed. It’s managed by installing a sump, where the water collects. A pump then lifts the water up and out to the surface, where it can eventually flow into the stormwater pipes – which are designed to handled that kind of flow. The animation below illustrates the contrast between a pre-FDD and a post-FDD configuration. To see something close to a full-screen version of the animation, use this [link].

Figure 3. Animation of contrast between the pre-FDD configuration and the post-FDD configuration. (Original illustration from screenshots of YouTube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

The physical occupation of a homeowner’s basement through a sump and a pump is a theory on which assistant city attorney Abigail Elias has already commented publicly. She made the comments on Jan. 9, 2014 to a citizens advisory committee that formed in connection with the city’s sanitary sewer wet weather evaluation (SSWWE). On Jan. 9 Elias essentially reviewed the content of her Nov. 25, 2013 memo for the committee, which came in part in response to an email sent by attorney Irvin Mermelstein on Oct. 29, 2013 to the consultant hired by the city to facilitate the committee’s work.

Elias explained the notion of “taking” by telling the committee that under the U.S. Constitution, a government cannot take private property without compensation. Elias told the committee: “If I condemn your land because I need to run a street through it, I have to pay you for that land.”

The requirement that someone be paid for their land is reflected in the causes of action listed in the Feb. 27 complaint. Payment is one required component of Michigan law (MCL Section 213.23) for taking someone’s property. But the law also includes an additional requirement that it be for a public use. The proposed use of the property must, by statute, be fairly deemed a governmental activity by one or more of the following standards:

(a) A public necessity of the extreme sort exists that requires collective action to acquire property for instrumentalities of commerce, including a public utility or a state or federally regulated common carrier, whose very existence depends on the use of property that can be assembled only through the coordination that central government alone is capable of achieving.

(b) The property or use of the property will remain subject to public oversight and accountability after the transfer of the property and will be devoted to the use of the public, independent from the will of the private entity to which the property is transferred.

(c) The property is selected on facts of independent public significance or concern, including blight, rather than the private interests of the entity to which the property is eventually transferred.

The complaint alleges that the city of Ann Arbor would have failed to meet that requirement. From the complaint:

Alternatively, if the City had attempted to comply with the requirements of MCL Section 213.23, it would have failed in its burden of proving that the taking was necessary in accordance with Section 213.23 (2) because no public necessity of an extreme sort existed, the property taken will not remain subject to public oversight and the property was not selected on facts of independent public significance or concern, including blight.

The complaint cites the statutory requirement on takings that transfer the property to a private entity. By implication, the legal theory on which the lawsuit is based includes the possibility that the sump pump, after it is installed in someone’s home, is not owned by the homeowner, but rather a private party, presumably the plumbing contractor. The ownership question arose at the Jan. 9 meeting of the citizens advisory committee.

At the Jan. 9 meeting, Elias began her explication of the legal framework for the city’s footing drain disconnection (FDD) program by saying that the situation is “very, very different” from the Loretto case. According to Elias, a key difference is this: Who owns the pump? Her answer: The homeowner.

Elias explained that in the Loretto case, a couple of inches on the side of a building for installing cable wiring was, in fact, considered a taking. That was because New York City had required building owners to allow the local cable provider to attach its antennas to the building so that the tenants could get service – whether the landlord wanted it or not. According to Elias, in the Loretto case the court said that the requirement of allowing installation of cable equipment might be for a public purpose, but it involved a third party occupying space with its equipment – and that’s not allowed because that’s a taking.

In the Loretto case, the cable company – not the landlord – still owned the equipment. If you consider the sump pumps in the city’s FDD program, they are owned by the homeowner, Elias contended. The sump pumps are not a part of the city’s utility system, she contended – as the pumps become part of the property owner’s house. The fact that the Loretto case was a physical occupation by a third party was what made the difference – tipping Loretto over the edge to being analyzed as a prohibited taking.

Responding to an emailed query from The Chronicle about the ownership of the pumps, Elias wrote that the homeowner becomes the owner of the pump at the point when it’s installed and the work is accepted by the homeowner:

Question: It was reiterated at the Jan. 9 meeting that a key difference between the city’s FDD program and the set of facts in the Loretto case involves the ownership of the installed equipment. From a legal perspective at what specific point in the transaction does the Ann Arbor homeowner become the owner of the FDD equipment?

Elias: The property owner owns the sump pump and lead lines as soon as they are installed and the property owner accepts the work done by the plumbing contractor with whom the property owner contracted to do the work. Except as inventory for the plumbing contractor, they are never owned by anyone else.

Retro Compliance: Health, Safety, Welfare

While connections between footing drains and the sanitary sewer system do not currently comply with the existing code, at one time they did. Until around 1980, footing-drain-to-sanitary-sewer connections were legal to make. They were also (and still would be) convenient to make, because the footing drains and the sanitary sewers are typically buried at roughly the same depth. That means gravity can be used to lead stormwater away from a building foundation by connecting footing drains into the sanitary system. Storm sewer pipes are typically not as deep, so gravity works against moving water from footing drains into the stormwater system.

At the start of the FDD program, the city identified roughly 16,000 houses in Ann Arbor that had such connections. But how is it that a requirement can be imposed retroactively to bring a building up to current code? That question is raised in the complaint that’s been filed with the 22nd Circuit Court:

Because the Plaintiffs’ homes were constructed in conformity with the then applicable building code and other relevant standards and the Plaintiffs or their predecessors-in-title received Certificates of Occupancy and/or other necessary approvals from the City, the Plaintiffs acquired vested rights to the footing drains and related storm water and sanitary sewer facilities related thereto.

One tack the city’s defense against the lawsuit might take is to cite a 2002 amendment to Michigan’s Home Rule City Act, which came a year after the city’s FFD ordinance passed. At the Jan. 9 meeting, Elias pointed out the amendment, which says you can require property owners to separate footing drains from the sanitary sewer. From the amended statute:

117.5j Sewer separation; authorization; ordinance; special assessment.
Sec. 5j. A city, in order to protect the public health, may adopt an ordinance to provide for the separation of storm water drainage and footing drains from sanitary sewers on privately owned property. The legislative body of a city may determine that the sewer separation authorized by this section is for a public purpose and is a public improvement and may also determine that the whole or any part of the expense of these public improvements may be defrayed by special assessment upon lands benefited by the public improvement or by any other lawful charge. A special assessment authorized by this section shall be considered to benefit only lands where the separation of storm water drainage and footing drains from sanitary sewers occurs.

Elias pointed out that the amended statute also says a city can impose a charge on those who benefit, and can even impose the cost only on the homeowners who benefit from the separation. About the city’s FDD program, Elias said: “So we could make the homeowners pay.” But she said the policymakers in Ann Arbor didn’t think that making property owners pay was the right way to do it, and the policymakers’ choice was to fund the program.

At the Jan. 9 meeting, Elias also said the courts distinguish exercising police powers – which are for health, safety and welfare of the community and its residents – from takings by a third party by occupying somebody’s property. The health, safety and welfare argument is based at least in part on the risk of sanitary sewer overflows into the Huron River, which can be caused by excess flows in the sanitary system during wet weather.

That concern – based on actual overflows – led in 2003 to the city’s signing of a consent order with the Michigan Dept. of Environmental Quality. That included a requirement that the city perform at least 155 footing drain disconnections a year for four years, for a total of 620. The 620 required disconnections were to be done in addition to 179 disconnections that had already been completed by the city by the time the consent order was signed. Those 179 disconnections were based on the 2001 FDD ordinance. The city has completed more than 1,800 disconnections under its program, nearly three times the number required under the consent order.

At the Jan. 9 meeting, Elias told the citizens advisory committee that when courts have looked at retroactive application of building codes, they look at a couple of issues: (1) Is there a public safety, health and welfare reason for doing it? and (2) Is it an overwhelming or undue burden on the property owner?

Regarding the first test mentioned by Elias, the complaint denies there’s a public safety, health and welfare reason for doing it. From the complaint:

Upon information and belief, the Ordinance was not enacted in response to emergency conditions or some other imminent threat to public health, safety or welfare. Rather, the Ordinance was enacted by the City in order to facilitate a solution to long-standing and self-created conditions in the least expensive and/or most expedient way possible.

As for the second test mentioned by Elias, the complaint contends that an unreasonable burden is imposed on the property owners. From the complaint:

Moreover, the ongoing and perpetual responsibilities for the operation and maintenance of the sump pumps and related equipment represent an unreasonable financial and personal burden upon the Plaintiffs’ use and enjoyment of their property and represent an inappropriate delegation by the City to its citizens of its governmental obligations.

People Affected

Two of the plaintiffs in the case are Ann Arbor homeowners John Boyer and Mary Jean Raab, who have lived in their Ward 4 home since 1970, according to the complaint. And until 2006 when their footing drain was disconnected from the sanitary system, their basement had been dry and they had experienced no flooding, dampness or other water problems in their home. According to the complaint, their backyard and basement have flooded on a significant and recurring basis: “Two flooding events were particularly severe, with the basement living space under water while the sump pumps were fully operational.”

An additional plaintiff in the case is Anita Yu, who had her footing drains disconnected in 2003 – with a sump pump installed in a “The sump and sump pump were installed in a location accessible to plaintiff, Anita Yu, only with difficulty as she suffers from a disabling condition that it makes it impossible for her to perform the operation and maintenance mandated by the FDDP and the FDD Ordinance without hiring a contractor at her own cost.” Before the disconnect, Yu had “complete peace of mind,” according to the complaint.

The complaint also cites results of a survey of homeowners who’ve had their footing drains disconnected. For the survey, which was conducted in connection with the SSWWE study, 2,350 surveys were mailed and 850 responses were received. [.pdf of survey report]

One of many highlights of the survey responses were the divergent results on the kind of “peace of mind” issue cited by the complaint. According to the summary, after disconnection and installation of a sump pump, 35% of respondents had at least some reduction in anxiety, but 40% had at least some increase in anxiety. That difference is reflected in the verbatim comments of respondents:

This is the worst thing possible. The drain disconnect has cost me thousands of dollars. The installation destroyed my basement floor, holes dug, tiles not replaced, check valve at toe stubbing level. I’ve had 2 major floods, both happened during summer storms when the power went out. Both times I was traveling and did not know until I came home. Coach’s Catastrophe Carpet Care came both times; $2,200 the first time – all furniture, carpet, everything had to be thrown out, the second cost was $1,800, the same thing, everything had to be thrown away. I bought a generator at a cost of $7,000, then the pump stopped working – another flood. Replaced the pump for a few hundred dollars. I am a 73 year old widow on a fixed income, living alone. This program has cost me thousands of dollars, destroyed my peace of mind and had a negative impact on the value of my home. Also, I would be interested in knowing whether anyone has paid the onerous fines we were threatened with.

Survey results also included comments indicating that anxiety was eased:

I am much less concerned about sewage backups since the sump pump was installed.

We were very glad to have the pump installed. We had heard about flooding in this basement before we had the house. It provides peace of mind and has worked well for years ago.

So happy with this new system!! Greatly relieved, thank you so much!

Next Steps

The brief for the preliminary injunction sets forth four points as the standards that the court should balance in determining whether the injunction should be granted.

Those four points are: (1) whether the plaintiff has shown a substantial likelihood of success on the merits; (2) whether the plaintiff has shown “irreparable injury”; (3) whether issuing a preliminary injunction will cause substantial harm to others (or whether harm to the plaintiff in the absence of a preliminary injunction outweighs the harm to defendant if a preliminary injunction is granted); and (4) whether the public interest will be served by issuing a preliminary injunction.

With respect to those standards, the brief gives five summary points, in addition to the more detailed arguments in favor of an injunction:

The brief argues that the suit is likely to succeed on its merits: the “… United States Supreme Court’s decision in Loretto v. Teleprompter CATV Corp. and case law in Michigan have clearly held such governmental invasions to be takings in violation of the U.S. Constitution.”
The brief contends there would be no harm to the city of Ann Arbor as a result of granting a preliminary injunction: “The remedy sought herein is to prevent the city of Ann Arbor from enforcing its FDD ordinance. There is no proof that the city will be damaged from issuance of an injunction barring FDD ordinance enforcement.” The brief points to hardships endured by the three plaintiffs as described in their affidavits.
The brief contends that the injury is irreparable: “… irreparable injury, also known as inadequacy of legal remedies, is present here as is the danger of a multiplicity of suits.”
On the permanent and continuous question, the brief states that: “… equity will enjoin interference of enjoyment and use of land where the invasion is of a continuous character.”
On the question of public interest, the brief argues that “… the public interest is advanced by preventing future constitutional injury and preventing a multiplicity of suits due to enforcement of an unconstitutional ordinance.”

A posting on the website a2underwater.com indicates that a show cause hearing on the preliminary injunction would take place no earlier than March 26, 2014. Based on the posting on a2underwater.com the complaint has not yet been formally served to the city of Ann Arbor, but that is expected Friday or Monday.

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Backups: Lawyers, Sewers, Pumps

Dave Askins — Mon, 20 Jan 2014 03:59:13 +0000

As part of a city study of Ann Arbor’s sanitary sewer system, a citizens advisory committee met on Jan. 9, 2014. The meeting was about backups – in several different senses.

“Do not touch” reflects the attitude of some Ann Arbor homeowners toward their houses in the context of the city’s footing drain disconnection program. These class projects from Johanna Nader’s material science class at Slauson Middle School were on display at the Slauson media center. That’s where the most recent meeting took place for the city of Ann Arbor’s citizens committee that is advising the city’s sanitary sewer wet weather evaluation study. (Photos by the writer.)

The group’s charge includes making recommendations to the city council about the best way to manage the impact of rainfall on the city’s sanitary sewer system. Flows in the sanitary system are related to wet weather, even though the city has separate pipes for its sanitary and stormwater systems. That’s due to a variety of factors, including cracks in sanitary system pipes. Cracks can allow rainwater to soak into the pipes from above, and groundwater can come in from below.

But the factors that can increase the amount of water in the sanitary system during wet weather also include direct connections from stormwater systems into sanitary pipes. An example is a connection between a footing drain – part of a homeowner’s stormwater system running around the perimeter of basement foundations – and a sanitary sewer pipe. That’s a connection now prohibited by current building code, but still present in an estimated 16,000 houses in Ann Arbor.

If a deluge of water flowing into the sanitary system during a heavy rain becomes large enough, that can lead to two problems: (1) the extra volume can come up through the sanitary pipes in a homeowner’s basement, flooding the basement with a mixture of raw sewage and stormwater; and (2) the extra volume can overwhelm the city’s wastewater treatment facility, leading to the discharge of untreated sewage into the Huron River.

Over a decade ago, the city’s legislative response to this issue was to enact an ordinance that created a program requiring the systematic disconnection of property owners’ footing drains from the sanitary system. The city also created a way to pay for the work that uses funds from two sources – the city’s utility funds, or contributions from the owners of new developments. New developments help pay for the work because the city also created a program requiring that the developer of any new building in the city compensate for the additional load that the new building places on the sanitary sewer system. And the main way that developers choose to mitigate a new building’s added load on the sanitary system is to pay for footing drain disconnections.

So literal backups – of raw sewage in people’s basement, in the past and possibly in the future – were part of the basis for the committee’s work. But the group’s Jan. 9 meeting was devoted to “backups” in other ways as well. Assistant city attorney Abigail Elias presented the group with a couple of different assurances: (1) that the city would back the committee up if a lawsuit were to be filed against its members as a result of their recommendation; and (2) that she felt the city’s footing drain disconnect program had an adequate legal backup.

Meanwhile, rumblings that a lawsuit over the program could be filed continue to percolate to the surface.

Elias appeared before the group on Jan. 9 as a consequence of the committee’s interest in getting answers to questions raised by an email sent by Ann Arbor resident and attorney Irv Mermelstein on Oct. 29, 2013. In advance of the Jan. 9 meeting, which was originally scheduled for Dec. 17, 2013, Elias provided a written memo to the committee on Nov. 25, 2013. Elias’ memo responded to the arguments made by Mermelstein, which are based in part on the idea that the city’s program amounts to an unconstitutional taking of private property by the government.

And in a Nov. 27, 2013 email, Elias also provided written answers responding to follow-up questions from the committee about her memo from two days earlier. Those questions related to whether the citizens committee members had any legal exposure as a result of their participation in the committee. Elias was fairly emphatic in her written response, as well as in her remarks on Jan. 9, that she did not think such a lawsuit filed against the committee or its members could possibly have any merit.

Also surfacing during the committee’s Jan. 9 meeting was the notion of “backup” in the sense of a secondary system that activates if the primary system fails. The city’s footing drain disconnect program relies on installation of an interior basement sump – to collect water that gravity previously led away from the foundation through sanitary sewer pipes. The approach requires an electric pump to transfer stormwater collecting in the sump to the surface – because the interior sump would otherwise overflow, flooding the basement. The city’s program does not currently pay for a battery backup system for the pump. But Elias stated at the Jan. 9 meeting that she was exploring the possibility that the city could legally fund such a backup system.

Part of the committee’s discussion on Jan. 9 focused on how a backup system could improve peace of mind for homeowners who had a sump pump installed as part of the city’s footing drain disconnection program. That peace-of-mind discussion came in the context of a survey sent to 2,350 participants in the city’s footing drain disconnection program as a part of the current study project. Based on initial analysis of survey results presented at the Jan. 9 meeting, 40% of the 819 survey respondents reported an increase in anxiety after the installation of a sump and a pump as part of the footing drain disconnection program.

Finally, the meeting agenda included “backup” in the sense of backing up to review the committee’s mission. Resident Cy Hufano addressed the committee during public commentary made to the committee at the end of the meeting. Hufano described himself as “perplexed” that several months into the study, the citizens advisory group was still raising questions about their vision and purpose. Hufano also challenged the committee to make clear to themselves whether the city’s footing drain disconnection program exists to support developers at the expense of citizens.

This report is organized partly in terms of these various notions of “backup.” It begins with an overview of the physical mechanics of footing drains and how they work.

Footing Drains

The city of Ann Arbor has separate sanitary and stormwater conveyance systems. That is, the city has built separate pipes for (1) carrying human waste flushed down toilets to the wastewater treatment plan; and (2) moving rainwater from higher elevations to the Huron River.

However, during construction of new developments before roughly 1980, footing drains were frequently connected directly to the sanitary sewer pipes. Footing drains are permeable pipes buried around the perimeter of a foundation, roughly at the depth of a basement floor. The purpose of footing drains is to lead water – that soaks into the ground during a rainfall – away from the foundation of the building.

Those footing-drain-to-sanitary-sewer connections were convenient to make, because the footing drains and the sanitary sewers are typically buried at roughly the same depth. That means that gravity can be used to lead stormwater away from a building foundation by connecting footing drains into the sanitary system. Storm sewer pipes are typically not as deep, so gravity works against moving water from footing drains into the stormwater system.

Figure 1 shows a connected configuration.

Figure 1. Footing drains connected to the sanitary system. (Original illustration from screenshot of YouTube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

However, during very heavy rains, that connected configuration can conceivable lead to a volume of stormwater flow into the sanitary sewer system that it’s not designed to handle. That can cause two problems.

First, near the point where the extra water is entering the sanitary system, it can cause raw sewage to back up through the floor drains of basements. Second, farther downstream at the wastewater treatment plant, the amount of water flowing into the plant can exceed the plant’s capacity. That can result in only partially-treated wastewater being discharged into the Huron River. Such connections are now against city code.

The city’s footing drain disconnection program was established in the early 2000s in the context of basement backups and sanitary sewage overflows during heavy rainstorms. Two key steps of the procedure are to disconnect the footing drain from the sanitary pipe, and then to install a sump outfitted with a pump to transfer the water to a higher elevation, where it can then flow into the city’s stormwater system.

Figure 2 shows a disconnected configuration with a sump and a pump.

Figure 2. Disconnected footing drains with installation of a sump pump. (Original illustration from screenshot of YouTube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

The contrast between the pre-FDD configuration and a post-FDD configuration – a combination of Figures 1 and 2 – is shown in the animation of Figure 3.

To see something close to a full-screen version of the animation, use this [link].

Disconnecting footing drains of individual buildings from the sanitary sewer system is not the only possible way to address the issue. Instead of trying to reduce the additional wet weather flow in the sanitary system, it’s possible to accept as a given that there will be a certain amount of stormwater entering the sanitary system during wet weather. And given that flow, the response would be engineer larger sanitary sewer pipes or to create temporary storage facilities to handle that flow. At the Jan. 9 meeting, one committee member ventured that this is the sort of solution the city should have pursued – because “the solution should be in the right-of-way, not in people’s homes.”

But those were not the approaches that were ultimately implemented by the city of Ann Arbor. Instead, the approach Ann Arbor took was to use footing drain disconnection, to reduce the amount of additional wet weather volume in the system.

The citizens advisory committee is now weighing a range of different approaches to the issue, while the current program is partially suspended. It will be up to the committee to make a recommendation – about whether to continue the footing drain disconnection program at all, and if so, in what form.

Historical Overview: Narrative

A basic sketch of the history of the city’s footing drain disconnection program (FDDP) begins in the mid-1990s with a series of backups of raw sewage into residents’ basements and overflows of sewage into the Huron River during heavy rainfalls. That obviously drew the attention of residents who had raw sewage sitting in their basements, but also of the Michigan Department of Environmental Quality.

The city council appointed a task force in 1999 to study the issue and make recommendations. Five localized areas of the city, where more than half of the basement backups had occurred, were targeted: Orchard Hills, Bromley, Morehead, Dartmoor and Glen Leven. The first two of those areas are adjacent to each other in the northeast part of the city. The other three are clustered in the southwest part of the city.

The initially recommended solutions in the five targeted geographic areas were a mix of footing drain disconnections (Bromley, Dartmoor, Glen Leven), upsizing pipes and creating storage facilities (Orchard Hills, Morehead). The final recommendations of the sanitary sewer overflow (SSO) prevention task force were for footing drain disconnections across the board.

In response to an emailed query from The Chronicle, assistant city attorney Abigail Elias indicated that it’s possible to contemplate a program that would require FDD in some areas of the city but not others, if there were a rational basis for doing so. The question and Elias’ response are as follows:

Question: The SSO report of June 2001 contains initial recommendations for implementation of FDDs in three geographic areas of the city but for storage and upsizing of sanitary sewers in two other areas. From a legal point of view, would it have been possible to establish an FDD ordinance that applied in just some areas of the city but not in others?

Elias: It might be possible to require footing drain disconnects in only certain areas of the City if there was a rational basis for defining each of the areas included or excluded. Because of the nature of flow in both sanitary and storm sewer systems, and based on our experience with heavy rains not necessarily repeating where they fall or where the flow has occurred and backed up within the sanitary sewer system, the areas designated for removal might have to expand or change. The City has shifted some areas in terms of priority for disconnect based on experience with certain areas having sanitary sewer backups into basements that did not have them during the 1998 and 2000 heavy rain events.

To support the program of footing drain disconnections, the city council passed an ordinance in 2001 that states the city can compel a homeowner to disconnect a footing drain from the sanitary system. The city also set up a reimbursement program to cover the cost of the plumbing work, and an option for a homeowner to pay $100 a month not to have the disconnection done.

The ordinance on FDDs was already in place by 2003 when the city signed a consent order with the Michigan Department of Environmental Quality on the issue of sanitary sewage overflows. The consent order required the city to disconnect at least 155 footing drains a year for four years for a total of 620. The 620 required disconnections were to be done in addition to 179 disconnections that had already been completed by the city by the time the consent order was signed.

Five target areas with the majority of basement backups citywide. The colored dots indicate locations of flow-monitoring meters.

The 2003 consent order also required the city to implement a developer offset mitigation program. That program requires developers of new projects to compensate for their additional load by reducing the flow elsewhere in the sanitary system. The option chosen by a developer to mitigate additional flow is not mandated to be footing drain disconnections elsewhere in the city. But as public services area administrator Craig Hupy put it at the Jan. 9 committee meeting, the “coin of the development realm” has become FDDs. Hupy described options like retrofitting toilets with lower-flow models as not being as cost-effective for developers as FDDs.

Based on information presented to the citizens advisory committee at its Aug. 21, 2013 meeting, as of July 1, 2013 the mandate of the consent order has already been satisfied with nearly three times as many FDDs as the consent order required. Specifically, 1,834 footing drain disconnections had been completed in the city’s FDD program by July 1, 2013. Another 805 FDD equivalents had been completed in the developer offset mitigation program.

Assistant city attorney Abigail Elias confirmed at the Jan. 9 citizens advisory committee meeting that as far as FDDs currently required by the MDEQ: “The state is not requiring it – that part of the administrative consent order is no longer in effect.”

In terms of the target geographic areas where the majority of basement backups had occurred back in the late 1990s, footing drain disconnections in two areas in the northeast part of Ann Arbor – Orchard Hills and Bromley – are about 99% complete. Footing drain disconnections in the southwest target areas of the city are all at least halfway done: Glen Leven (56%), Dartmoor (89%), and Morehead (63%).

On March 15, 2012 an especially heavy rain hit Ann Arbor, which caused extensive overland flooding in the southwestern part of the city in the vicinity of the southwest target areas. Questions were raised by residents about the possibility that the FDD program had exacerbated the overland flooding issue.

An Aug. 22, 2012 public meeting was held at the Pittsfield branch of the Ann Arbor District Library – located in the southwest part of the city. Some residents at the meeting complained that they were experiencing flooding of their previously dry basements after participation in the city’s FDD program.

The city council voted on Sept. 17, 2012 to partially suspend the city’s FDD program, and it remains suspended. The developer offset mitigation requirement remains in place. The council also authorized three water-related studies around the same time: (1) a stormwater study for upper Mallets Creek; (2) a citywide stormwater model calibration study; and (3) a study of wet weather on the sanitary sewer system.

The citizens committee that met on Jan. 9, 2014 is providing advisory input on the third study.

Historical Overview: Timeline

The timeline below is not exhaustive.

1997-03-31 200 gallons of sanitary sewer overflow (SSO) due to sewer blockage.
1997-09-05 Unknown amount of SSO due to sewer blockage.
1998-03-09 Unknown amount of SSO due to surcharging manholes at three separate locations due to heavy rains. Basement floodings also occurred.
1998-07-08 150-200 gallons of SSO due to sewer blockage.
1998-09-06 168,000 gallons of SSO due to bypass at outfall 002 due to heavy rains. Hydraulic pumping capacity exceeded.
1998-09-29 Unknown amount of SSO due to broken sanitary sewer line.
1999-03-30 Unknown amount of SSO due to sewer blockage.
1999-04-23 1.12 million gallons of SSO due to bypass at outfall 005 due to heavy rains.
1999-07-06 City council establishes an SSO prevention task force with specific membership of city staff and others, with five slots for residents of the five affected neighborhoods.
2000-07-10 Unknown amount of SSO on Swift Run Trunk Line due to heavy rains.
2001-07-06 Unknown amount of SSO due to sewer blockage caused by roots.
2001-07-09 City council is presented with final SSO prevention study report done by CDM. [.pdf of SSO report] [.pdf of SSO report appendices] The report includes initial recommendations for a mix of footing drain disconnections (FDDs) and upsizing of pipes and creation of storage facilities, but the final recommendations in the report are for FDDs across the board.
2001-08-20 City council approves FDD ordinance.
2001-10-17 2,000 gallons of SSO due to heavy rains causing flows to inadvertently enter influent channel at plant, which was under construction and overflow to storm sewer.
2002-04-22 200 gallons of SSO due to plugged sanitary sewer main.
2002-06-24 700 gallons of SSO due to force main break.
2002-09-03 City council revises FDD ordinance with respect to reimbursements.
2003-08-18 City council authorizes MDEQ administrative consent order.
2003-08-18 City council authorizes developer offset mitigation program as part of resolution authorizing MDEQ administrative consent order.
2003-08-14 Region-wide power outage and generator failure at wastewater treatment plant leads to 13 million gallons of partially-treated sewage being discharged into the river, 4 million of it undisinfected.
2003-09-04 MDEQ administrative consent order entered. [.pdf of MDEQ consent order]
2005-01-03 City council revises FDD ordinance with myriad other ordinances in context of citywide reorganization.
2008-06-16 City council increases FDD reimbursement cap from $3,700 to $4,100.
2008-08-07 City council revises FDD ordinance to allow for cap to be set by council resolution. [.pdf of city of Ann Arbor FDD ordinance]
2009-11-03 MDEQ consent order is terminated.
2010-06-07 Public commentary at city council about overland flooding near Village Oaks Court and Chaucer Court, located off Ann Arbor-Saline Road.
2010-08-5 [24 FDDs] City council approves Zaragon Place 2 with 24 required FDDs.
2011-01-03 [140 FDDs] City council approves contract amendment with CDM Michigan using money paid by University of Michigan associated with 127 required FDDs and 13 supplemental FDDs as a part of the Michigan Stadium renovation project.
2011-11-10 [41 FDDs] City council approves The Varsity residential development with 41 required FDDs.
2012-03-15 Rainfall of nearly 2 inches, all of which fell between 5 p.m. and 7 p.m. as measured at the city’s Jackson Road rain gauge.
2012-04-16 Public commentary at city council meeting about March 15, 2012 and other localized overland flooding events.
2012-05-07 Public commentary at city council meeting about March 15, 2012 localized overland flooding.
2012-09-17 City council suspends a part of the FDD program.
2013-02-04 City council authorizes contract with OHM for sanitary sewer wet weather evaluation study.
2013-03-04 [20 FDDs] City council approves 624 Church St. with 20 required FDDs.
2013-05-13 [59 FDDs] City council approves 413 E. Huron with 59 required FDDs.
2013-08-08 [5 FDDs] City council approves Kerrytown Place with 5 required FDDs.
2013-12-02 [1 FDD] City council approves Running Fit expansion with 1 required FDD.
2014-01-06 [8 FDDs] City council approves Montgomery Building expansion with 8 required FDDs.

Backup (Secondary Systems): Peace of Mind

At the first meeting of the citizens advisory committee, on Aug. 21, 2013, committee member Frank Burdick’s sentiments in favor of a win-win solution were fairly representative of the group.

Frank Burdick at the initial meeting of the wet weather sanitary sewer citizens advisory committee on Aug. 21, 2013. He’s describing how a gravity-based back-up system would work.

The win for a homeowner would include having peace of mind – that the disconnected footing drain configuration would not result in a risk of basement flooding.

What is the nature of that risk? After a footing drain is disconnected from the sanitary pipe, the water that collects in the drains is conveyed to an internal sump, and then pumped up and out to the surface – where the water eventually finds its way into the stormwater system. If the pump fails or the electrical power goes out, the sump will overflow into the basement and flood the area.

Losing electric power is a plausible scenario exactly when a pump might be called on to perform under heavy load – during a very heavy rainfall, oftentimes associated with electrical storms.

Burdick drew an analogy to the dam-in-dam-out controversy associated with Argo Dam a few years ago. That divisive issue was resolved by leaving the dam in place, but constructing the Argo Cascades, which allows kayakers to paddle from Argo Pond around the dam and continue on down the Huron River.

Several other committee members at the initial meeting also introduced themselves by saying they wanted to see some kind of compromise solution. Committee member Peter Houk, for example, said he was in favor of a solution that was acceptable to present and future participants in the FDD program.

Gravity-based backup system for sump pump sketched out by Frank Burdick.

Burdick sketched up one possibility for a compromise solution that relies on a specific plumbing configuration for the sump. The plumbing he sketched would – if the water reached a certain level in the sump – allow it to drain into the sanitary pipe. That way, if the pump fails or if the electricity goes out, a homeowner would have peace of mind that a gravity-based system would prevent the sump from overflowing.

At the Jan. 9 meeting, Burdick expressed some frustration that the city staff had not given his idea for the gravity-based backup system fair consideration. The facilitator for the study, Charlie Fleetham of Project Innovations, responded to Burdick by telling him that he thought the city had responded to his suggestion. Burdick characterized the response from the city as brief with no opportunity for dialogue.

Burdick said he wanted the city staff to get to the point of discussing what might work instead of simply concluding that something wouldn’t work. Fleetham reiterated that the city staff had concluded that Burdick’s design wouldn’t work. Burdick responded by saying that if the committee was really going to pursue a win-win solution, then there are technical resources in the city that need to participate more actively in the committee’s work. Though it was not made clear during the Jan. 9 meeting, the problem with Burdick’s design does not appear to involve its fluid dynamics, but rather whether it would meet city code.

At the Jan. 9 meeting, assistant city attorney Abigail Elias reported that making a battery backup system eligible for reimbursement under the FDD program is something the city is considering. She told the committee it’s a disadvantage to not have all the paperwork from 12 years ago when she’d initially researched the issue. [Elias was serving as city attorney when the FDD program was created. She held that position from 1996 to late 2002.] She told the committee that the legal research she’d done previously was not the kind of thing the city kept forever and ever. But she’s now taking a very serious look at whether there’s a reason not to be funding the battery backups.

A battery backup for a sump pump is not part of the building code, Elias said, so the city couldn’t require one. But Elias said her view is that if the battery backups are necessary for the sump pump to actually work and to function, then the city ought to be able to cover that cost. Elias said the city knew that backup systems are a concern – from looking at the data that’s coming back from a recent survey of participants in the FDD program.

The preliminary survey results were presented at the Jan. 9 meeting. The survey was sent to 2,350 participants in the city’s footing drain disconnection program and 819 people had responded by the time of the Jan. 9 meeting. [.pdf of preliminary, draft survey results]

Those results show many residents are very satisfied after participating in the FDD program, but many residents are also very dissatisfied. Several FDD program participants who’d previously had no basement water problems reported having water problems in their basements after the sump pump was installed. And several participants reported that their previous water problems have persisted even after participation in the FDD program. Anxiety about the installed sump pump was also an issue identified in the survey – that’s the aspect of the survey to which Elias alluded in her remarks.

But Elias said the city needs to make sure that it wouldn’t be getting into trouble by giving someone a backup system that exceeds code requirements and that violates some requirement in terms of who’s paying for it. “We would love to be able to cover the battery packs,” she said. That would be one more thing for people not to worry about, she noted. Elias indicated that the question of whether a battery backup system could be paid for by the city would be resolved by the time the committee made its recommendations – if FDDs are still one of the options the committee recommends.

Burdick seemed somewhat skeptical of the battery backup as a solution, saying that a gravity-based system is really the only way you can truly have a backup. He ventured that a battery would only last for a few hours, “and then you’re bailing your sump!” he said.

Legal Backup Issues: Citizens Committee

Abigail Elias of the city attorney’s office attended the Jan. 9 citizens advisory committee meeting in part to address concerns that had been prompted by a memo she’d written for the committee explaining why she thinks the city’s FDD program has a solid legal foundation. The memo drew questions about the possibility of a lawsuit being filed against members of the citizens committee.

Elias provided a written response to those questions in advance of the Jan. 9 meeting. [.pdf of Elias' response to questions about the committee's possible legal liabilities]

The three questions Elias answered were as follows:

Does the memorandum mean that the City legal staff now represents CAC members?
If the above is true, am I now prohibited from talking to other lawyers?
If the City is sued regarding this project, will I be required to support the City’s position even if I do not agree with it?

To summarize her responses briefly – written, as well as remarks made at the Jan. 9 meeting – the memorandum does not establish an attorney-client relationship between the city attorney’s staff and committee members. And the fact that Elias wrote a memo does not prohibit a committee member from talking to other lawyers. Further, if the city were sued, committee members would be eligible for representation, provided they responded to phone calls and emails and showed up for required meetings.

But Elias stressed throughout that she did not think a lawsuit of that type – filed against committee members over the performance of duties in connection with the committee – could possibly have any merit, and would almost certainly be thrown out of court at the start.

By way of background, the citizens advisory committee associated with the wet weather sanitary sewer study is a different kind of committee from other groups that are sometimes established by the city council for advisory purposes. For example, the pedestrian safety task force that the city council established last year through a council resolution included an application process, after which selected members were nominated to serve. Confirmation by the council of those pedestrian task force appointments is on the Jan. 21 city council meeting agenda.

The original sanitary sewer overflow prevention task force from the late 1990s was also established and partly populated by a council resolution passed on July 6, 1999. Membership of that original group was established partly through the resolution establishing the task force:

Utilities Senior Engineer Peter Perala
Utilities Field Services Superintendent Craig Hupy
Acting Utilities Director Sumedh Bahl
City Engineer Sabah Yousif
Public Services Director William Wheeler
Associate City Administrator Ronald Olson
Huron River Watershed Council Executive Director Laura Rubin
County Drain Commissioner Janis Bobrin
Lee Roberts, plumbing expert
One representative from each of the five affected neighborhoods
An engineering professional

The city’s online Legistar records don’t reflect a subsequent city council action appointing the representatives of the five affected neighborhoods. But some of the subsequent meeting minutes of the task force reflect the following as task force members: Stephen Rapundalo, Barbara Bruemmer, Wendy Carman, Jim Nieters. Fran Alexander is mentioned as both a subcommittee member and the person handling public relations. [Those minutes also reflect a discussion of the desirability of having private contractors retain data, instead of the city, in order to prevent access to it via Michigan's Freedom of Information Act.]

The current citizens advisory committee was not established through a separate council resolution. Instead, a citizens advisory committee was part of the public engagement strategy in the scope of work for Orchard, Hiltz & McCliment Inc. approved by the city council about a year ago, on Feb. 4, 2013.

At the study’s kickoff meeting on April 23, 2013, an invitation was made for anyone to join the committee who wished to participate. And at the first meeting on Aug. 21, 2013, the meeting information packed lists 21 members of the committee: Kathe Atkins, Stan Baker, Mary Rinne Barnett, Peter and Marilyn Batra, Kathy Boris, Colin Breed, Frank Burdick, Vince Caruso, Joe Conen, Ted Dorr, Iris Floyd, Bruce Geffen, Thomas Holden, Peter Houk, Michelle Lovasz, Patricia Marten, Jim Osborn, Frank Pelosi, Frank Richardson, Beverly Smith, Mark Wagner and Matt Wherry. Not all of those listed have chosen to continue as members.

Assistant city attorney Abigail Elias.

Addressing the committee on Jan. 9, Elias indicated that she didn’t think a potential lawsuit filed against the citizens committee could have any merit. “I could give you a glib comment,” she said, “which is: It doesn’t take much to file a lawsuit. Anyone can file a lawsuit against anybody.”

She told the committee that courts do not like cases that do not have merit. That’s a huge discouragement to lawyers against filing lawsuits that they shouldn’t be filing, she said. As the citizens advisory committee, she told the members, “you are part of the city government in the sense that you’ve been asked to engage in what is a quintessential governmental function.” That function includes planning, recommending, studying, looking at the data, and looking at the information.

Governments in Michigan have broad governmental immunity for what they do, she said. “And that means, we can be negligent, but we are not liable.” Elias allowed that sounded very crass, but said that is basically what governmental immunity is.

The reason for governmental immunity is that the government performs core functions to serve the residents, and it needs to be able to do those things when the government is the only one doing them – without liability hanging over its head. “Does that mean we say, ‘Fine, we’ll go out and be negligent?’ Absolutely not,” Elias assured the committee. She allowed there are some exceptions – if the city doesn’t maintain streets properly or if there is a defect in the sewer system that causes a backup under limited circumstances. She also noted that drivers of city vehicles don’t have immunity if there’s a car accident.

But sitting on a planning committee making recommendations is the kind of function and action for which there should be no liability at all, Elias said. That doesn’t stop someone from filing a lawsuit, she allowed, but that means the lawsuit should be kicked out almost immediately. She concluded that it’s not something a committee member should be losing any sleep over.

As far as representation if the committee were sued, Elias said, “We’ll represent you. You’re part of the city process.” But she cautioned that did not mean that she and the committee had an attorney-client relationship. “I represent the city; you’re advising the city,” she said.

Elias said there could be exceptions to the city’s willingness to represent a committee member: “If one of you gets so excited at the meeting that you punch the guy sitting next to you, no, we’re not going to help you out in that case.” She said she didn’t want to make light of the issue, but indicated that punching someone is not part of the duties as a committee member.

Committee member Vince Caruso asked Elias if there were any cases where a citizens committee has been sued. Elias told Caruso that part of the problem in researching cases is that only the court of appeals cases are easily accessible. Some of those opinions are published, and some are not published. Elias felt that a case where a citizens committee had been sued would have been dismissed at the get-go and would never have gotten to the appellate court. There would be no way to find it except by word of mouth. She told the committee she had never heard of any such a lawsuit.

Committee member Peter Houk asked Elias: If a family member of yours were serving in a similar capacity on a similar board or position, would you tell them they shouldn’t do it because of the liability issue? Elias responded by saying that she would never tell them that. “If it was my sister in her town, I’d tell her to go for it, you should,” Elias said.

Committee member Jim Osborn ventured that another key issue is that the committee was not making policy, but rather just advising. Elias agreed: “Right. Somebody else is going to be making the decision. If someone messes up, it’s not going to be you guys.”

Committee Frank Burdick wanted to entertain the worst-case scenario – that the city was sued and lost. He wanted to know if the city paid the judgment. Elias told Burdick that the city’s policy is to indemnify, which is the legal term for paying a settlement. Elias also explained that the city has a policy that as long as an individual is cooperative – which did not mean someone has to agree with the city’s final position – the city will represent a committee member.

Elias said the city had experienced a couple of situations where employees didn’t respond to emails, they were supposed to show up for depositions in the discovery process and refused to show up, or refused to talk to the attorney. At that point, that’s not cooperation, Elias said. Elias also said that the city’s representation did not depend on how someone voted on the committee. Whether the recommendation is unanimous or not doesn’t make anyone ineligible for representation, if the group as a whole were sued, Elias said.

Burdick asked for Elias’ assurance in writing, saying that right now it’s just a verbal and emailed assurance. Houk observed that Elias’ remarks would be part of the minutes of the meeting. Elias indicated that her email was in writing. Elias also said that in terms of the city’s policy on indemnification, variations of it are worked into the city’s collective bargaining agreements.

Caruso thanked Elias for coming to talk to the committee. He said he didn’t think there was much standing for someone to threaten this committee with a lawsuit. He thought it was unfortunate that the threat was made, and even more unfortunate that people gave it credibility. Caruso thought it’s important that if people want to join in and help find viable solutions, they’re not threatened with lawsuits.

Legal Backup Issues: Unconstitutional Takings

In addition to the indemnification of the citizens committee, the other legal issue Elias addressed at the Jan. 9 meeting was the question of whether the city’s footing drain disconnection program is an unconstitutional taking of private property by the government.

One aspect of the unconstitutional takings legal theory, in broad strokes, is that the city is occupying space in a homeowner’s basement with sump pump equipment without compensation or due process for such an occupation. The theory is based in part on the Loretto v. Teleprompter Manhattan CATV Corp. et al U.S. Supreme Court case, which found that a required installation of cable wiring amounted to an unconstitutional taking. An email from Irv Mermelstein on Oct. 29, 2013 – sent to facilitator Charlie Fleetham and others – lays out some aspects of his legal arguments in more detail.

In a Nov. 25, 2013 memo, Elias responded to the arguments made by Mermelstein, which are based in part on the idea that the city’s program amounts to an unconstitutional taking of private property by the government.

At the Jan. 9 meeting, Elias explained the notion of “taking” by telling the committee that under the U.S. Constitution, a government cannot take private property without compensation. [It's specifically the Fifth Amendment that guarantees that right.] Elias told the committee: “If I condemn your land because I need to run a street through it, I have to pay you for that land.”

In the case of a water main easement, she said, the city might not need to pay for the use of the land – because the resident is getting water from the water main. The resident will say: Go ahead and take that part of the property you need to install the water main, and I’m not going to make you pay for it, because now I finally get water.

Elias also explained that a regulatory taking – which would prevent someone from being able to use their property – could also be unconstitutional. She described a case where a city required commercial property owners to contribute part of their land to a greenway along the riverfront. The regulatory requirement prevented the beneficial use of the commercial property along the riverfront of that city, she said. And even though the city had a good reason for it, the amount of land that was required to put into the greenway prevented property owners from being able to use their property. And that was considered a regulatory taking, she said.

Legal Backup Issues: Unconstitutional Takings – Pump Ownership

Elias began her explication of the legal framework for city’s footing drain disconnection (FDD) program by saying that the situation is “very, very different” from the Loretto case. Elias described how, when the Loretto case was decided, everybody said: Oh my goodness, they’re talking about a couple of inches on the side of a building! That couple of inches was considered a taking because New York City had required building owners to allow the local cable provider to attach its antennas to the building so that the tenants could get service – whether the landlord wanted it or not. The court in the Loretto case said that the requirement of allowing installation of cable equipment might be for a public purpose, but it involved a third party occupying space with its equipment – and that’s not allowed because that’s a taking.

In the Loretto case, if the ordinance had required landlords to provide cable installations, or if the landlord owned the equipment, it would have been decided differently, Elias said. In the Loretto case, the cable company – not the landlord – still owned the equipment. If you consider the sump pumps in the city’s FDD program, they are owned by the homeowner, Elias said. The sump pumps are not a part of the city’s system. The pumps become part of the property owner’s house. The fact that the Loretto case was a physical occupation by a third party was what made the difference – tipping Loretto over the edge to being analyzed as a taking that was prohibited.

Question: It was reiterated at the Jan. 9 meeting that a key difference between the city’s FDD program and the set of facts in the Loretto case involves the ownership of the installed equipment. From a legal perspective at what specific point in the transaction does the Ann Arbor homeowner become the owner of the FDD equipment?

Elias: The property owner owns the sump pump and lead lines as soon as they are installed and the property owner accepts the work done by the plumbing contractor with whom the property owner contracted to do the work. Except as inventory for the plumbing contractor, they are never owned by anyone else.

Committee member Frank Burdick noted that Elias was stressing the fact that the Loretto case involved third-party ownership of the equipment. In the case of the city’s FDD program, Burdick said, the sump pumps are owned by the homeowner, so it’s not third-party ownership. But Burdick told Elias: “It just doesn’t stand up for me very well, that the city makes it mandatory that the homeowner has one of [the pumps] installed, the city pays for it, but then you say … that it belongs to the homeowner.”

Legal Backup Issues: Unconstitutional Takings – Power to Compel

Elias responded to the part of Burdick’s comment about the mandatory nature of the city’s FDD program by pointing out an amendment that had been made [in 2002, a year after the city's FDD ordinance was enacted] to Michigan’s Home Rule City act. It says you can require property owners to separate footing drains from the sanitary sewer. From the amended statute:

117.5j Sewer separation; authorization; ordinance; special assessment.
Sec. 5j. A city, in order to protect the public health, may adopt an ordinance to provide for the separation of storm water drainage and footing drains from sanitary sewers on privately owned property. The legislative body of a city may determine that the sewer separation authorized by this section is for a public purpose and is a public improvement and may also determine that the whole or any part of the expense of these public improvements may be defrayed by special assessment upon lands benefited by the public improvement or by any other lawful charge. A special assessment authorized by this section shall be considered to benefit only lands where the separation of storm water drainage and footing drains from sanitary sewers occurs.

Legal Backup Issues: Unconstitutional Takings – Retro Compliance, Health, Safety, Welfare

Elias also noted that some people had raised the issue about requiring retroactive compliance with building codes. Houses built to code, say in 1967, were allowed to have footing drain connections to the sanitary sewer. The current building code disallows such connections. But how is it that a requirement can be imposed retroactively to bring a building up to current code?

Elias said that a lot of the Loretto case actually talked about how governments can impose regulations for health, safety and welfare that are reasonable and that are not takings. She said the courts distinguish exercising police powers – which are for health, safety and welfare of the community and its residents – from takings by a third party by occupying somebody’s property. The health, safety and welfare argument is based at least in part on the risk of sanitary sewer overflows into the Huron River.

There was a case after Loretto where asbestos abatement was required if there was renovation of the property, Elias said. The person who sued said: Wait a second, my property was in compliance with the code when it was built, so why are you making me do retroactively the asbestos abatement that I wasn’t required to do before? And the court said that case had nothing to do with Loretto, Elias said. Rather, the asbestos abatement was legitimate regulation for public heath, safety and welfare that is not a taking.

Elias said about 6,600 cases have mentioned Loretto since the opinion had come out [in 1982]. She had looked at the cases in Michigan where Loretto had been referenced. And Elias said she’d found nothing that says that requiring residents to bring a building into compliance with a building code would be considered a taking.

Courts that have looked at retroactive application of building codes, Elias said, look at a couple of things: (1) Is there a public safety, health and welfare reason for doing it? and (2) Is it an overwhelming or undue burden on the property owner?

Elias said referenced a 1946 case, which she said was still good law after Loretto, that said the extraordinary cost of a retrofit was not a reason not to do it. She allowed that she’d found one case out of Ohio – a trial court decision, not a court of appeals decision – where a city that was requiring disconnects was making residents pay the cost of the disconnects. And for one elderly woman who was on a fixed income, her cost was something like $30,000 – because she had to build a line down to the road in order to do the disconnect. And on that one instance, the court had said that given the inordinate burden on that individual, the disconnection requirement was not legitimate as applied to that individual.

By way of background, the kind of case that might see litigation in Ann Arbor could stem from the city’s FDD program as applied to specific individuals. The website a2underwater.org describes a participant in the FDD program, Mrs. Y, who has limited financial resources for maintaining the sump pump system, is elderly, and has physical disabilities preventing her from easily accessing the location of the crawl-space sump pump.

Committee member Frank Burdick implicitly challenged the welfare part of the health, safety and welfare argument by questioning whether a sump with a pump adds value to a house. If he has the same floor plan as his neighbor, but his neighbor has an FDD sump pump and the neighbor’s basement now continually floods – because the pump has failed or there is water that was never there before – then Burdick’s house has more value than his neighbor’s, Burdick said. His neighbor has to disclose that when he tries to sell his house.

Elias responded by saying if the sump pump is working properly, it’s going to help prevent sanitary sewer backups. If stormwater is getting into the house through the sump, that at least is clean water, she said. It’s still wet, Elias allowed, but it’s not unsanitary in the way it would be if water were backing up through the sanitary system.

Legal Backup Issues: Unconstitutional Takings – Developer Offset Mitigation Program

At the conclusion of the Jan. 9 meeting, during the time allotted for public commentary, Cy Hufano addressed the committee.

[Hufano is a resident of Sloan Plaza, which is just to the east of 413 E. Huron – a 14-story, 216-apartment building at the northeast corner of Huron and Division that's currently in the beginning phases of construction. The project was controversial but eventually won approval on a 6-5 city council vote. As part of the developer mitigation offset program, the 413 E. Huron project is required to complete the equivalent of 59 FDDs.]

Hufano told the committee that they needed to make clear to themselves why developers have a responsibility to mitigate their additional burden on the sanitary system. “I think you should know that,” he said. “Who mandates that they have to mitigate?” Hufano noted that the 413 E. Huron project required the equivalent of 59 FDDs. His understanding was that the University of Michigan stadium renovation also required FDDs. Hufano wanted to know: Is the city of Ann Arbor involved in FDDP with developers? His perception was that the FDD program exists to support developers, at the expense of citizens.

By way of additional background, the perception that the FDD program now exists to support developers is partly due to the fact that the city has now completed nearly three times the number of FDDs that were required under the 2003 MDEQ consent order. So it might be argued that the risks to health, safety and welfare that led the MDEQ to seek that agreement with the city have been addressed through FDD activity up to now. Part of the goal of the current wet weather study is to assess accurately the current risk of sanitary sewer overflows – that is, to assess the current level of risk to health, safety and welfare posed by footing drain connections.

It’s not absolutely clear if it’s legally possible to have a requirement that developers mitigate their additional load on the sanitary system without having an FDD ordinance in place. That’s a question posed by The Chronicle to Elias via email:

Question: The Administrative Consent Order with the MDEQ, which was authorized in 2003, requires implementation of an offset mitigation program – but it does not appear necessarily to require a local ordinance to be in place involving FDDs. Is that a fair statement? From a legal point of view (without regard to the practicalities), wouldn’t it possible to require developers to mitigate their new sanitary flows by convincing residents through direct financial negotiation to disconnect their footing drains from the sanitary system – without an FDD ordinance in place?

Elias: From a practical standpoint, if the only issue were to achieve zero (or a modest improvement over zero) impact from new development, then the developer offset mitigation program would serve that purpose – if developers chose to do residential FDDs instead of other possible mitigation measures. However, the overflows that resulted in the ACO were from existing conditions, and it was those existing conditions that needed to be addressed to try to prevent future overflows. Similarly, the sewer backups experienced by property owners in 1998 and 2000 were due to existing conditions and, as with the overflows, it was those existing conditions that needed to be addressed.

Requiring a developer to mitigate beyond mitigation of the new flow their development is contributing (plus 20%) would be inconsistent with the concept of developer offset mitigation. More important, the volume of flow to be removed by the number of FDDs mandated by the ACO within the amount of time mandated by the ACO would have imposed on developers an arguably substantial burden, not necessarily related to their development. The developer offset mitigation program serves to prevent new developments from undermining the removal of flow that is being accomplished by the FDD program. The FDD program operates separately from the Developer Offset Mitigation Program – even though a decision to perform FDDs for residents who agree is an option and commonly used by developers to comply with the mitigation requirements.

While the ACO did not mandate an ordinance, (1) the FDD ordinance was already in place, (2) an FDD ordinance was required to provide the ability for the City to enforce the program requirements, and (3) an ordinance also helps to make sure the FDD program requirements were spelled out clearly so that it is understood, in addition to being managed and applied uniformly and consistently. Adoption of the ordinance also meant it was subject to City Council review and approval through the usual ordinance approval process, including public input at the public hearing on the ordinance in addition to the input from the SSO Task Force.

Legal Backup Issues: Unconstitutional Takings – Specific Prior Case Law?

Committee member Joe Conen asked Elias if she was aware of any cases where a sump pump had to be installed, and then that issue was tried and judged – and where the installation was upheld or overturned. Elias referred the committee to her written memo. [The memo does not appear to cite any cases where an analysis of an FDD program as an unconstitutional taking was specifically presented to and ruled on by a court.]

Elias said that one of the cases was heard by John Feikens, a federal judge in Detroit, who managed the litigation of the Detroit Water and Sewerage System. The case that came before Feikens dealt with issues that had to do with cost, but not with legality of the disconnection that was required. Elias ventured that Feikens would not have hesitated to strike something down that was unlawful. [City attorney Stephen Postema once clerked for Feikens.]

Elias’ favorite case from those described in her memo, she said – partly because she thought the judge had a bit of a sense of humor – was Magnuson v. City of Hickory Hills in Illinois. [The judge's sense of humor is reflected in this quip from the opinion: "It didn't matter much to Noah, but Hickory Hills, Illinois, cares very much where the water goes." The reference is to the biblical Noah who built an ark in advance of a flood that resulted from 40 days and 40 nights of rainfall, not to Noah Hall, an environmental law professor at Wayne State University.]

In the Magnusun case, Elias said, the court did find that using water service is directly related to discharge to the sanitary system, so it’s a perfectly legitimate consequence for refusing to comply with the footing drain disconnection requirements that the water service to a house could be shut off.

The current citizens advisory committee is expected to submit its recommendations to the city council when the study concludes. The final study report is due in July of 2014.

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