The vote that was again postponed is the first of two votes the council must take on any new ordinance it enacts. At its meetings over the last few months, the council has heard extensive public commentary on medical marijuana, but that commentary does not constitute a formal public hearing, which will be held at the same meeting when the council votes on final approval of the licensing, provided it eventually gives initial approval to the licensing system.

At its Oct. 18, 2010 meeting, the  council gave its initial approval to a set of zoning regulations for medical marijuana businesses, but it has not yet given its final approval to those regulations. The council’s strategy is to bring licensing and zoning forward at the same time for a final vote.

The context for development of zoning regulations was set at the council’s Aug. 5, 2010 meeting, when councilmembers voted to impose a moratorium on the use of property in the city for medical marijuana dispensaries or cultivation facilities and directed its planning commission to develop zoning regulations for medical marijuana businesses. Subsequently, the city attorney’s office also began working on a licensing system.

At its Jan. 3 meeting, the council heavily amended the licensing proposal. At its Jan. 18 meeting, the council was poised to undertake further amendments to the licensing proposal, including many that concerned limiting the amount of information that is required to be divulged by those associated with license applications. However, the council did not amend the proposal further at that meeting. The council undertook additional amendments to the licensing proposal at its Feb. 7, 2011 meeting.

The moratorium on additional facilities in the city to be used as medical marijuana dispensaries and cultivation facilities was extended by the council at its Jan. 18 meeting to go through March 31, 2011.

This brief was filed from the boardroom in the Washtenaw County administration building, where the council is meeting due to renovations in the city hall building. A more detailed report will follow: [link]

At the Sunday Ann Arbor city council caucus, from left: Tony Derezinski (Ward 2), Stephen Kunselman (Ward 3) and Sabra Briere (Ward 1). Also attending the caucus from the city council were Mike Anglin (Ward 5) and John Hieftje (mayor). (Photo by the writer.)

Due to receive its first reading on Monday night at the council’s regular meeting is The Moravian – a  five-story residential and work/live space planned unit development (PUD) along the 500 block of Fifth Avenue and the 200 block of East Madison. The project was given a recommendation for approval from the city’s planning commission on a 7-1 vote in January 2010. [Chronicle coverage: "Moravian Moves Forward Despite Protests"]

At Sunday’s caucus, some residents said they were keen to see a substantive discussion at The Moravian’s first reading, but councilmembers cautioned that the first reading was typically not the time when they argued a particular position. Residents indicated that they’d gathered enough signatures from surrounding land owners to meet a city code threshold that would force an 8-vote super-majority – out of 11 votes – at a second reading of the PUD proposal.

Also receiving a first reading on Monday will be a proposed ban on cell phone use while driving. The ban had already received approval on first reading at the council’s last meeting, but due to subsequent significant revisions to the ordinance language, it will be heard again Monday as a first reading. The council’s agenda indicates that the public hearing, generally held along with an ordinance’s second reading, has been canceled. That will be rescheduled to coincide with the second reading.

A budget directive – reducing all non-union staff salaries by 3% – had been postponed from the last council meeting and will be considered by the council on Monday in a slightly revised form. As a council resolution – as opposed to an ordinance – it will require just one reading. A key revision in the intervening postponement: It’s now a minimum 3% cut that’s specified, which leaves the door open for even greater cuts.

Background: First, Second Readings and Petitions

Why do ordinances require two readings before city council in order to be enacted? It’s a requirement of the city charter:

SECTION 7.3.
…
(b) Each proposed ordinance shall receive two readings, which may be by title only, unless ordered by the Council to be read in full or in part. After the first reading of a proposed ordinance, the Council shall determine whether it shall be advanced to a second reading. The second reading shall not be given earlier than the next regular Council meeting.

The Moravian, as a planned unit development (PUD), requests a change in the city’s zoning – zoning districts are a part of the set of city ordinances and are recorded in Chapter 55 of the city code.

The zoning of parcels surrounding The Moravian also came up in discussion at Monday’s caucus, because those parcels factor into a calculation for protest petitions that can be filed against a PUD. Chapter 55 Article XI, Section 5:107 (5) specifies that [emphasis added]:

(5) A protest against any proposed amendment to this chapter may be presented in writing to the City Clerk at or before the public hearing thereon. Such protest shall be duly signed by the owners of at least 20% of the area of land included in the proposed change, or the owners of at least 20% of the area of land included within an area extending outward 100 feet from any point on the boundary of the land included in the proposed change, excluding any other publicly owned land. Following the filing of a valid protest petition, adoption of an amendment to this chapter shall require at least 8 affirmative votes of the Council at the second reading on the ordinance.

Beverly Strassmann, who is president of the Germantown Neighborhood Association, contended at Sunday’s caucus that the city clerk’s office had thus far declined to accept the petition that had been prepared against The Moravian – apparently on the grounds that the first reading on The Moravian had not yet taken place. Strassmann was concerned that the petition would not be accepted in time to have an impact. Councilmembers at caucus assured her that they’d check into the petition submission issue.

Aerial view of The Moravian, looking northeast. A computer-generated image of the proposed project is located in the center of this picture – the U-shaped building. The South Main Market complex is in the foreground; Perry School, now used as offices by the University of Michigan, is to the upper right. (Image links to higher resolution file.)

Strassmann’s other concern about the petition was that the University of Michigan-owned building across Fourth Avenue, east of the proposed The Moravian, was inappropriately zoned as M1, which is “limited industrial district,” not PL, or “public land.”

If it were zoned as public land, she said, it would not factor into the land area calculation for the protest petition, making it easier to meet the 20% threshold – on the assumption that UM would not sign. [Editor's note: The Chronicle's reading of the code requirement on the protest petition is that the university property would properly be excluded, because it is "publicly owned." The code requirement on petitions does not say "zoned as public land."]

On the issue of whether the university-owned building was currently improperly zoned as M1, Stephen Kunselman (Ward 3) weighed in saying that actual land use was different from zoning – the zoning might well be different from the land’s actual use.

Kunselman queried Strassmann as to whether she had enough signatures even without the UM property, and she indicated that she did. However, she was not able to give an estimate of what percentage had been achieved.

Past Protest Petitions: City Place

About a year ago, the same kind of protest petition had an impact on the City Place PUD north of Packard on Fifth Avenue, but in the same general neighborhood as the The Moravian. [Chronicle coverage: "Residents Organize to Defeat City Place"]

The petition not only raised the number of votes necessary for approval to eight – the fact of the petition caused councilmembers who’d been inclined to vote for the project to change their thinking. At a Sunday caucus on July 19, 2009, some months after the City Place vote in January, Christopher Taylor (Ward 3) allowed that he’d come to the City Place vote inclined to support the project, but the fact of the petition had given the neighborhood opposition to the project greater clarity.

The vote against City Place was thus 10-0 – the council had had six likely votes in favor of the project, but not the eight needed to make it stick. [Sandi Smith (Ward 1) did not attend that meeting.]

The Moravian: Due Process and Deliberations at First Reading

At Sunday’s caucus, Beverly Strassmann, president of the Germantown Neighborhood Association, asked the council not to approve The Moravian for a second reading but rather to send the developer back for a public participation meeting. Why? In January 2009, an ordinance took effect that the council had approved, which requires developers to hold a meeting with neighbors of proposed developments and submit a report on that meeting with their site plan submission.

It was that report that Strassmann had a problem with. She contended that the representations in the report were “fraudulent” and thus could not possibly satisfy the ordinance requirement. She said she took issue with the characterization of herself as “verbally abusive” and reported that other residents at the meeting also felt that their comments had been misrepresented by the developer. One of the meetings described in the report, Strassmann said, took place on Dec. 23, 2008. [Chronicle coverage of the Dec. 23 meeting: "The Madison Redux"]

Stephen Kunselman (Ward 3) commented that this was the nature of the public participation ordinance – it was up to the developer to hold the meeting and to write the report. Kunselman said he wasn’t so concerned about the he-said-she-said aspect. Rather, his main question was whether the objections of Strassmann and others to the content of the report had been established as a part of the public record. Strassmann indicated that at least one resident, Walt Spiller, had registered his objections at the planning commission’s public hearing, but she was uncertain whether that had been included in the commission’s minutes.

Mike Anglin (Ward 5) used his laptop computer to retrieve the minutes and read aloud:

Walt Spiller, 548 South Fifth Avenue, adjacent homeowner to the north, asked that appropriate buffering be provided between his property and this project. He believed the petitioner’s representation of his comments were a misinterpretation, adding that he told the petitioner he would not bring this up in a public forum if the petitioner would redact the entire statement under his name. It was not done, he said. His main opposition to this proposal was that it was out of scale and character with the existing neighborhood.

Sabra Briere (Ward 1), who had helped push forward the passage of the still relatively new public participation ordinance, noted that it was due for an annual review and that the issue of a report’s content should be included in its review. [The ordinance took effect in January 2009.] The question of when additional meetings are triggered is also something she said should be reviewed – city staff were interpreting the ordinance’s reference to “amended planned unit development zoning district” in a way that didn’t include all changes, she said. [Related Chronicle coverage: "Heritage Row Redux: Process Clarified"]

Jack Eaton, responding to Strassmann’s use of the word “fraud,” suggested that the council focus attention away from that word and instead focus on the idea that the public participation ordinance should be taken seriously. He suggested that one way to achieve that at Monday’s first reading would be to ask the developer to amend the report on the public participation meeting to reflect residents’ comments accurately.

At Sunday’s caucus, many of the same concerns  were expressed about The Moravian that neighbors had conveyed at the planning commission’s meeting: the building was out of scale with the neighborhood; the building would create shadows on surrounding buildings; 5th floor terraces should not count as open space. Strassmann summarized the way she felt the planning commission had treated the developer: “Planning commission has coddled the developer as if he was breastfeeding.” [In early 2006, the city council passed a revision to Chapter 112 of the city code that makes explicit a mother's right to breastfeed in places of public accommodation.]

Briere, responding to concerns raised by Strassmann that there was no actual brownfield on The Moravian site, told Strassmann that brownfields did not necessarily require that there be pollution – “urban blight” was sufficient. And someone could decide that there was “urban blight,” Briere said, even though you might not agree that it was blighted. Briere drew upon her experience with a proposed development near her neighborhood – the Lowertown development near Broadway – in providing the explanation to Strassmann.

The Moravian is an almost 75,000-square-foot, four-story building over one level of parking containing 62 dwelling units, with a combined total of 150 bedrooms, and 90 off-street parking spaces. Twelve of the 62 proposed dwelling units are to be affordable to lower-income households.

Ethel Potts, a resident of Ward 5, expressed her hope that the council would use their deliberations at the first reading of The Moravian to give the public “some clue” as to how they were thinking about the project. Sabra Briere (Ward 1) indicated that she tried to keep a really open mind at first reading and avoided getting to an actual decision until “the last possible moment.” She also told Potts that she felt the council had done a better job recently of discussing things at first reading.

Stephen Kunselman (Ward 3) indicated that The Moravian looked to him to be very similar to The Courtyards, a development near UM’s north campus at 1780 Broadway.

Mayor John Hieftje compared the process to the evaluation a jury makes and that it was important not to make a decision until all the evidence was in.

Tony Derezinski (Ward 2), a former state senator, said that was a similar pattern in the state legislature. The first reading, said Derezinski, basically alerts the public that the issue is now before the public body.

Cell Phones: Back to First Reading

At their last regular meeting on Feb. 16, 2010, the city council approved at its first reading a ban on cell phone use while driving. Tony Derezinski (Ward 2) noted that the discussion at their deliberations and feedback from residents – he’d received at least 40 emails – had reflected the usefulness of the first reading. Since then, the ordinance has undergone significant and numerous revisions, so that on Monday, it comes before council again as a first reading. [.txt file of original cell phone ordinance; .txt file of revised cell phone ordinance].

Mayor John Hieftje said that some of the revisions, allowing exceptions involving public emergency drills, had been prompted by resident input. From the revised ordinance:

(e) the person uses the electronic device while performing his or her duties as a volunteer in the Radio Amateur Civil Emergency Service (RACES) created by the Federal Emergency Management Agency and the Federal Communications Commission and as provided for in Title 47, Part 97, Subpart E, Section 97.407 of the Code of Federal Regulations.

Budget

Caucus conversation touched on a number of budget-related issues.

How Is This Paid For?

Sabra Briere (Ward 1) noted that the Monday agenda provided a number of “opportunities to spend money.” So she floated the idea to her council colleagues that the fund from which the money would be drawn be included on the agenda, so that the public would have a clearer understanding of where the money came from. Mayor John Hieftje said he thought that was not a bad idea.

The 3% Budget Directive

Postponed from the council’s last regular meeting, on Feb. 16, 2010, and now coming before the council on Monday, is a resolution directing the city administrator to cut non-union salaries by 3%. The resolution has been revised in the interim. [.txt file of original budget directive; .txt file of revised budget directive].

At Sunday’s caucus, Briere characterized a key difference between the two versions as the requirement that the cut be a minimum of 3%, which highlights the possibility that the cut could  be greater than 3%. In a “budget white paper,” circulated to residents, Briere has suggested specifically that for top management positions, the amount of the cut could be greater – as much as 10%. [.pdf file of Briere's budget white paper]

The Municipal Service Charge

Leslie Morris attended caucus and reflected on her service on the Ann Arbor city council from the mid-’70s through the early ’80′s and subsequently on the city’s park advisory commission. She told councilmembers that she was there to talk about golf,  though she had never been a golfer. She recalled how a park open space plan from 1966, in its first sentence, had identified a new golf course as the city’s greatest park need. She noted that there was no supporting material or data in the plan for that statement. She attributed it to the fact that the Leslie family was interested in selling the land to the city that is now the Leslie Golf Course – on “very favorable terms” to the city, she said.

Mayor John Hieftje clarified that for the land where the Leslie Science and Nature Center is located, it was a donation, and that for the golf course it was $1,000 per year.

Morris noted that during her period of public service, they had always felt that golf should pay its own way. But sometime in the ’90s, she said, golf was separated from the general fund, with the result that there were charges made “to ourselves” for golf that were not applied to other recreational activities. She characterized the situation that the city had gotten itself into as not quite fair.

Stephen Kunselman (Ward 3) noted that the municipal service charges made to different service units was what Morris meant by “charging ourselves.” He said that unclarity on this charge was one reason the council had asked city staff to explain it more clearly at an upcoming meeting on the budget, on March 8.

Hieftje said that when he was first elected to city council in 1999, he had heard that the reason the golf courses were separated out from the general fund was to “protect” them. Kunselman agreed that this rationale was based on the idea that if the golf courses were making money, then they would be “milked.” Kunselman suggested that the city’s municipal service charge was, in fact, a way of “milking” the golf courses.