In the foreground is Carsten Hohnke (Ward 5) as his council colleague Mike Anglin (Ward 5) explained the reasons why he wanted to appoint a historic district study committee for the area south of William Street along Fourth and Fifth avenues.

Heritage Row had been considered and rejected more than once before by the council, with a history in front of Ann Arbor’s legislative body dating back well over a year. The project had been brought back for reconsideration because the demolition of the seven houses was apparently imminent – as part of the construction of City Place. City Place is a different, already-approved project on the same Fifth Avenue site by the same developer.

But by the Friday before Monday’s meeting, all four agenda items related to Heritage Row (site plan, zoning ordinance and their respective public hearings) had been deleted from the agenda. The developer had withdrawn the Heritage Row project.

With the construction of City Place a virtual certainty – along with demolition of the houses – on Monday afternoon Mike Anglin (Ward 5) placed a proposal on the agenda that would have started a procedure to establish a historic district in the area. The related moratorium on demolition in the study area would have, at least temporarily, blocked the City Place development.

But in the end, the council was in no mood to repeat the same exercise it had gone through two years ago. At that time, the council had appointed a historic district study committee, then subsequently rejected the committee’s recommendation that a historic district be established in the neighborhood. Arguing against the establishment of a historic district study committee this time around, Tony Derezinski (Ward 2) said he didn’t want the council to become a joke. Later during deliberations Margie Teall (Ward 4) ventured that already, “We’ve become a bit of a joke.”

Also on Monday afternoon, two other items – which asked the council to reconsider votes it had taken at the Oct. 17 meeting about the City Place project – were placed on the agenda by Stephen Kunselman (Ward 3). Kunselman was not interested in getting the votes reversed, but had questions he wanted answered. While other councilmembers agreed to reconsider the items, the council then dispatched them with unanimous votes after Kunselman’s questions.

That left one item on the agenda – added on Friday after the agenda’s Wednesday publication – that actually resulted in a vote that might change the course of events in the city. The resolution directed city staff to make recommendations on improvements to crosswalks throughout the city. Councilmembers expressed some interest in tweaking a new pedestrian ordinance that it approved on July 19, 2010.

Also at the meeting, the council went into closed session to discuss the city attorney’s performance evaluation. It resulted in no change to city attorney Stephen Postema’s salary, but allowed him to cash out 250 hours of accrued time before Dec. 31, 2011.

Fifth Ave. Historic District

On the council’s agenda was a proposal to reappoint a historic district study committee for an area along Fourth and Fifth avenues near downtown Ann Arbor. The council also had on its agenda a separate but related proposal to enact an emergency moratorium on demolition in the proposed study area.

The scope of the study would have included an area roughly from William south to Madison along Fourth and Fifth avenues, as well as some addresses on Packard Street. Members of the committee were proposed to be Ellen Ramsburgh, Tom Luczak, Ethel Potts and Susan Wineberg.

It was Mike Anglin (Ward 5) who pushed the historic district proposals forward.

Historic District: Background

The site where City Place and Heritage Row have been proposed, and the area further south near Madison Street, have a long history [timeline]. An area in the same vicinity had previously been studied by a committee, which resulted in a recommendation to establish a historic district south of William and north of Packard on Fourth and Fifth avenues. However, on July 6, 2010, the city council rejected the historic district on a 4-6 vote. Voting for the district on that occasion were Sabra Briere (Ward 1), Stephen Kunselman (Ward 3), Carsten Hohnke (Ward 5) and mayor John Hieftje. Anglin was absent that evening, but his yes vote would not have been enough to achieve the majority needed to pass the resolution.

The original recommendation to establish a historic district had been made by a committee established by the city council on Aug. 6, 2009, along with a moratorium on demolition in the area to be studied. [For additional background, see: "S. Fifth Ave: Historic District Development"]

The council had established that 2009 study committee (in conjunction with a moratorium) in an attempt to block the City Place matter-of-right project that had been considered by the council, but postponed until January 2010 – under an arrangement with then-developer Alex de Parry. [De Parry recently sold his interest in the project.]

When the historic district committee was established in August 2009, the City Place project was then brought forward and ultimately approved on Sept. 21, 2009, about a month after the historic district study committee and moratorium had been established. This was a key difference between then and now: Two years ago, the historic district study committee was appointed before there was an approved project on the site.

The same night in July 2010 when councilmembers rejected the Fourth/Fifth Avenue historic district, now nearly 15 months ago, they reconsidered a vote on the Heritage Row planned unit development for the same site as City Place. In the version before the council at that time, Heritage Row would have constructed three new apartment buildings behind seven existing houses and preserved the houses to historic district standards. The July 6, 2010 vote on Heritage Row was 7-3 in favor, leaving it one vote short of the 8-vote majority the project needed for approval. The council had initially considered the Heritage Row project on June 21, 2010 and rejected it on a 7-4 vote.

With Heritage Row and a historic district both rejected, and the City Place project approved, a number of efforts have been made since the summer of 2010 to avoid the construction of City Place. Those efforts culminated most recently in a council decision reached on Oct. 3, 2011 to reconsider Heritage Row another time. That came shortly after the ownership of the City Place and Heritage Row projects changed. The Oct. 3 decision to reconsider Heritage Row was hoped by many to culminate in a final vote at an extra council meeting scheduled for Oct. 24. However, on Oct. 21 news emerged that the developer had pulled the item from the Oct. 24 agenda.

City Place, Historic District: Public Commentary

Thomas Partridge introduced himself as an advocate for all those who can’t attend the meeting, seniors and disabled people. He called on the council to show the courage to withdraw the City Place items from their agenda. No other university city with the prestige of Ann Arbor has allowed itself to be bullied by land developers, he said. Other communities have turned aside businesses – like Walmart.

Partridge said the increasing power of corporations is a prime reason why Occupy Wall Street is gaining strength every day. Occupy Wall Street is about people taking themselves away from the comfort of their homes and families to demonstrate. Heritage Row is illustrative of corrupt business practices, he said. Alluding to the crosswalk items on the agenda, Partridge also called for safe access to all forms of transportation.

Rita Mitchell asked the council to take advantage of a chance to reset the process. She talked about the mutliple dimensions of benefit to doing that. The houses, she said, can’t be replaced. They’re valuable to residents, who live there. They provide unique living spaces. They provide for an interesting and unique landscape near downtown. The city of Ann Arbor’s website notes the 1824 founding of Ann Arbor and highlights the city’s historic districts. If we allow houses like these to be removed, she said, it would contribute to the erosion of a sense of time and place and neighborhood.

Mitchell stressed the importance of what Fifth Avenue means to the neighborhood. She urged reconsideration of the votes on City Place. She asked the council to support the appointment of the historic district committee and asked for the council to support the moratorium. She suggested that councilmembers could all be remembered for making a decision for the benefit of the community.

Ethel Potts noted that Ann Arbor is getting press about how great it is due to its walkability, great neighborhoods and charm. But she said that not everything built new in the city enhances its charm – there are some “clunkers” built, she said. The particular block on Fifth Avenue has historic houses and are well worth keeping for all of us, she said. She asked that the council support appointment of a historic district study committee and moratorium. After all the confusion the council has been through, she said, it’s worth taking a step back to consider the livability of the city. She also asked that they reconsider the amendments to City Place – the developer wanted those revisions for his own reasons, she said.

Kathy Boris supported the resolutions proposed by Mike Anglin (Ward 5) to establish a study committee and the moratorium on demolition. It was her understanding, she said, that the moratorium would apply to City Place. If no action were taken, the project would bulldoze away seven houses and replace them with apartment buildings. It would be a shame to dismantle the block. She urged the mayor and the council to protect historic houses and Ann Arbor’s heritage.

Historic District: Council Deliberations

Mike Anglin (Ward 5) led off deliberations by thanking everyone for their continued interest. He said the strong minority vote on the historic district in July of 2010 (which was 4-6 in favor, and would have been 5-6 had Anglin been present) indicates uncertainty on the part of the council. He thanked the community members who were willing to step up now and serve on another study committee. He described a process that would include establishing a historic district study committee, appointing its members that night, and asking them to meet that night and consider the recommendation made by the previous committee.

Assistant city attorney Kevin McDonald (standing) confered with Mike Anglin (Ward 5) before the Oct. 24 meeting started.

Anglin then spoke about other historic districts in Ann Arbor and historic districts in general. He described how Ann Arbor’s Old West Side historic district was established in a crisis situation. [Google Map of Ann Arbor's historic districts] Buildings were torn down and cinder block buildings were put up. A historic district study committee, he said, alerts the town to what is going on. He said we’re lucky to have a strong historic district statute in Michigan. The area proposed for study, because of its location near downtown, plays a unique role in the community. There’s an affinity for this area, he continued.

The council had allowed a great deal of student housing to be put in, he said, without opposition, because those projects are suitable for their locations, Anglin said. [Anglin was likely referring to Zaragon West, being built at Thompson and William.] But in areas where there’s a legacy of some kind, it’s different.

Anglin said he enjoys living in an area where things are clearly defined. [Anglin lives in the Old West Side historic district.] There are things he can do and things he can’t – he likes that. He said his neighborhood has lots of graduate students, so historic districts don’t stop diversity, but rather encourage it. Most of the homes are privately owned and well-maintained, he said. They provide lower and affordable rents.

Coming back to the question of the procedure that night, Anglin said the process would be to appoint the committee. The council would recommend that the committee meet that evening. The mandate would be to act as a committee to determine if the intended study area is threatened. He said it was his understanding that this part of the procedure was “pretty foolproof.” He said that councilmembers, as “guardians of the city,” have the right to do their own planning. He believed the council should do everything possible to try to help the proposed study area achieve some kind of historic designation.

Anglin returned to the issue of the strong minority view, saying that back on July 6, 2010, the vote had been 6-4 vote against establishing the historic district. He wasn’t at the meeting, he said, but would have voted for the historic district. By establishing a historic district, he said, the council would be leaving the city a beautiful statement about their terms in office.

Anglin allowed that the timeline would be shorter, but that is because one study has already been done. The citizens who were asked to serve on the new committee, Anglin said, had stepped right forward.

Sabra Briere (Ward 1) noted that it’s the third time the issue of establishing a historic district study committee for the area has appeared before the council. The first time [on Dec. 15, 2008] the council did not support it. The second time [on Aug. 6, 2009] it was brought as a surprise to many, she said, but it passed. Many people felt it was warranted at that time. When the committee’s report came out, some councilmembers felt the case the committee had made was not strong enough to support establishment of the district.

Briere alluded to the city’s past experience with the establishment of historic districts where they’d initially been rejected by the council, but had eventually won approval in some form. Briere said she’d support establishing a study committee, because she thinks the area would benefit from historic district protection.

Other options, she said, have not materialized as strong protections for existing neighborhoods. For example, prevention of the accumulation of separate parcels for use to construct a single building was something that had not yet been brought forward.

She noted she had a problem with one of the “whereas” clauses:

Whereas, This proposed historic district is threatened by immediate development pressure and demolition or modifications not in keeping with the intent of the proposed district;

She said she was personally opposed to using every possible tool to prevent something [City Place] that the council had already approved. She proposed amending out that “whereas” clause. Anglin ventured he could live without it. Briere clarified that she interpreted that clause as direction to the committee. Anglin’s statement that the committee would meet that night, she said, belies the 12-month timeframe normally given for a historic district study committee to do its work. Anglin agreed to strike the clause as a “friendly” amendment and the change was made to the resolution without a vote.

Mayor John Hieftje said he’d voted to establish a study committee in the past and had voted in favor of the district. But the council had been wrestling around with it for a long time. The council as a body had voted no on the previous study committee’s recommendation, he said. Establishing a study committee creates expectations. It also puts a burden on the city staff. It re-does something the council has already spent a lot of time talking about. Hieftje said he had no expectation it would pass the second time around. He concluded that he didn’t think the council needed to go down the same road again.

Carsten Hohnke (Ward 5) and Sabra Briere (Ward 1) before the council meeting.

Marcia Higgins (Ward 4) allowed that she’d voted for formation of committee previously, but the data that had come back didn’t support the creation of the district. She saw no advantage in going through the same exercise again.

Carsten Hohnke (Ward 5) said he appreciated Anglin’s efforts. Anglin had articulated the historic value in that area of the community, Hohnke said. Hohnke’s view was that those historic assets are worth preserving. He’d supported the historic district the first time around. But Hohnke said that if it moved forward, it would be with the expectation that the moratorium would be attached to it. Incorporating the clear view from the city attorney, Hohnke said, led him to conclude that it wouldn’t be in the best interest of the city to establish the study committee. [Before the council began deliberations, they held a closed session to discuss written communication from the city attorney that lasted around 25 minutes.]

Tony Derezinski (Ward 2) noted that earlier in the meeting, someone had said they were concerned about the tone the city sends out. [It was Anglin, who during his communications had relayed a complaint from a constituent about the tone of warning letters sent out by the city in connection with rental property inspections.] By reconsidering and reconsidering and reconsidering something to which the council had apparently already brought finality to, it sends out the wrong tone, Derezinski said. He thought predictability and finality is an important aspect to the character of the city council. You have to accommodate the future as well as the past, he said. We don’t want to become a joke, Derezinski said.

Stephen Kunselman (Ward 3) noted that the University of Michigan continues to buy land in the general vicinity of the proposed area of study (next to the Institute for Social Research, which has been expanding). He asked assistant city attorney Kevin McDonald if a historic district influences what the university does. McDonald, who specializes in land use issues for the city, answered in one word: No.

Anglin took on the perception that the council couldn’t make up its mind. “It’s not that we can’t make our minds up,” he contended. It’s that you tend to waver when you have important decisions. Indecision is often a good thing, he said. Indecision had allowed everyone to look at this area for a long time and to look at the scope of the neighborhood. Anglin reasserted his belief the procedure for establishing a study committee is foolproof and would not be contested.

Sandi Smith (Ward 1) said she could appreciate the desire to maintain the row of charming houses. They present a certain rhythm as you stroll past. And they’ve been around for a long time. In an apparent allusion to a deal she’d helped work out in December 2010, but for which expected support at the council table from Carsten Hohnke had not been forthcoming, Smith said there had been opportunities to come to different conclusions along the way. She said she did not think it was now in the city’s best interest to establish a study committee and she could not support it.

Christopher Taylor (Ward 3) noted that this area of town and the issues surrounding it had been a part of the community conversation at least since 2008 when he was first elected to the council. It has presented moments of difficulty and reflection. He felt the reason the council was in the place it was that night was its “failure to achieve reasonable compromise.” There’d been a failure to accept something that was less than ideal. He had thought long and hard about whether the area is suitable for a historic district.

Nothing Taylor had heard had changed his conclusion. However, he said that if the council is in this situation because of a failure to compromise, then he felt he had to listen again, even if he felt there was no reason to think he would come to a different conclusion. There are people who are interested in devoting their time to the project and there’s an existing knowledge base. If the demolition is not attached to the resolution, he said he’d be open to listening and to learning.

Kunselman noted the issue certainly has a long history. He said he’d recently visited Chicago, where he’d seen a neighborhood that had some zoning in place that prevented the accumulation of parcels. He asked if it were possible to pass a zoning ordinance that specified a maximum lot size. The answer from assistant city attorney Kevin McDonald was: Yes, it’s possible.

Kunselman said he had no problem having a historic district study committee, but he was also looking to the existing R4C/R2A zoning district study committee. If that committee doesn’t take action, then he’d initiate a change in the zoning code to establish a maximum lot size. He said he’d hate to have something like City Place on Hamilton Place [the next street to the east from Fifth Avenue, where City Place is likely to be built]. In the Chicago neighborhood, he said, it was possible to have modern single-family homes right next to the old ones. The city has to allow for rebuilding, he said. He was open to learning and listening like Taylor, but concluded by saying that the council needed to move in some way.

Derezinski offered as a point of information on the R4C process – which he had kicked off with his first resolution made at the council table after winning election – that the committee had held a number of meetings, then doubled its size. He contended that the committee has been meeting consistently, and has added more meetings. The 10th and last meeting is scheduled for Nov. 9, he said. Everyone is welcome to come to add comments. It’s been a long and hard process, he said. He hoped to have a report from the committee in November, and then it’ll be up to council to decide what to do.

Hohnke said that since some councilmembers had expressed a desire to separate the resolution on establishing a study committee from the moratorium against demolition, he thought it would be worth considering establishing a study committee. But he had not had a chance to look at the staff input – it had come late to the agenda. If the council was going to consider the issue of a study committee independently, then a postponement would not have a negative effect, he said. So Hohnke moved to postpone the issue until the council’s next meeting.

On the postponement, Hieftje said the council had already done this, and had considered it over a long period of time. He did not expect he’d change his mind. Derezinski said it had been a long discussion for years and nothing has changed. It would be kicking the can down the road a little further, he concluded.

Outcome on postponement: The council rejected postponement, with only Christopher Taylor (Ward 3), Stephen Kunselman (Ward 3) and Carsten Hohnke (Ward 5) supporting it.

Margie Teall (Ward 4) said she could not support establishing a study committee. Thinking about what Derezinski had said about kicking the can down the road, she said that as the council continued to do this, “We’ve become a bit of a joke.” The council continues to bring up the same issue and vote the same way, she said.

Briere finished off the deliberations by saying there’s a difference between a historic district and a designation in the register of historic places. She said that for the seven houses, the council had essential made a decision one and a half years ago. Her fear now is for the rest of the neighborhood – the other side of Fifth Avenue, Hamilton Place, and Packard Street. The rest of the neighborhood is worth protecting, she said, so the issue will come back to the council eventually.

Outcome on establishing the historic district study committee: The council rejected it, with support only from Sabra Briere (Ward 1), Christopher Taylor (Ward 3), Stephen Kunselman (Ward 3) and Mike Anglin (Ward 5).

When the resolution to establish the historic district committee failed, the related resolution on the moratorium was withdrawn.

City Place Votes Reconsidered

The council was asked to reconsider two votes taken at its previous meeting on Oct. 17 about the City Place matter-of-right project on Fifth Avenue south of William Street.

Christopher Taylor (Ward 3) looks on as Stephen Kunselman (Ward 3) moves for reconsideration of a vote on the City Place project.

It’s worth distinguishing between the parliamentary notion of reconsideration and the common understanding of “to reconsider” as meaning something like “to contemplate again and reach a different conclusion.” When the council votes to reconsider a previous vote, it’s only settling the question of whether the vote will be taken again. If a vote to reconsider succeeds, then the council must vote again on the same question it considered previously.

The two votes on Oct. 17 had related to requests from the City Place developer. One request was to waive a landscape buffer requirement that was introduced through an ordinance change made after the project was initially approved in 2009. The second request was for approval of changes to the buildings that included a new window on the upper floors of the north and south-facing sides, and a change from horizontal siding to simulated shingle siding on the dormer.

Both re-votes were prompted by Stephen Kunselman (Ward 3), who had posed questions at the Oct. 17 meeting to which he did not feel he’d received adequate answers. One question related to fire exits for the upper floors of the development, which calls for demolition of seven existing houses to be replaced by two apartment buildings, separated by a parking lot.

City Place: Landscaping

Kunselman led off by saying that he did not have the same experience that his colleagues did with City Place. [He was not on the council when the project had been approved.] He just wanted to ask some questions, he said, and he asked for their indulgence. He assured his colleagues that he would move it along promptly, but noted that the City Place developer did not seem to have answers to his questions at the Oct. 17 meeting, so he wanted to try to get those answers that evening.

Tony Derezinski (Ward 2) said he appreciated the need to study issues carefully. But he said that this particular resolution had not been a surprise. He then stated that the council’s decisions need to have some finality. If the council keeps reconsidering decisions, the council is not well-served – because people need to have confidence in the finality of the council’s decisions. He said he was against the motion to reconsider the previous vote.

Sabra Briere (Ward 1) said she appreciated Derezinski’s remarks. However, the one time the council’s rules say that councilmembers can reconsider a vote is at the very next meeting. “That’s tonight,” she said. She concluded that Kunselman was following the rules exactly, and she thanked him for that. Margie Teall (Ward 4) asked Kunselman if there was information that he needed from the building inspector. Kunselman turned the question aside, saying that the motion before the council was to reconsider the previous decision. Mayor John Hieftje said that when the council had previously voted, he had all information he needed, but he was happy to reconsider the vote if Kunselman didn’t have the information he needed.

Outcome on reconsideration: The council voted to reconsider the previous vote on City Place landscaping requirements. Voting against the reconsideration were Sandi Smith (Ward 1), Tony Derezinski (Ward 2) and Stephen Rapundalo (Ward 2).

The specific issue Kunselman wanted to ask about stemmed from a recent change to the city’s landscaping ordinance that requires a conflicting land use buffer of 15 feet between a building and any adjacent land zoned or used for residential purposes. In the case of the City Place project, this comes into play on the south side of the property, where there is not enough room for the required 15-foot buffer. The proposed City Place building is set back 16 feet from the property line, but an existing driveway for the immediately adjacent residential parcel is located on the City Place property where the buffer would be. There is an easement on the driveway.

In response to a question from Kunselman, city planning manager Wendy Rampson explained that when the landscape ordinance changed, it required a buffer between the building itself and the other property. There’s a driveway where the trees would need to be planted, she said. Kunselman asked if there was any possibility to install some vegetation.

Rampson allowed that there might be room for some kind of vegetation, but not trees. Conflicting land use buffers usually contemplate something more substantial, like a berm, she said. Kunselman asked if it were possible to add screening of some kind. The interaction concluded with Kunselman expressing his hope that the building and its occupants will be screened by the developer from ins and outs of traffic from the adjoining driveway.

Outcome on City Place landscape requirements on revote: The council voted unanimously to approve the flexible application of the landscape ordinance.

City Place: Elevations

During an earlier communications slot on the agenda, Kunselman inquired about asbestos abatement associated with the seven houses to be demolished for City Place. The city’s chief development official, Ralph Welton, attended the meeting to answer Kunselman’s questions.

Kunselman said he was concerned because a house demolished in his neighborhood cost quite a lot to have the work done, due to asbestos that was present on the site. He asked Welton to describe the asbestos situation for the seven houses on Fifth Avenue. Welton explained that a survey was done and that the survey did find some asbestos – it would need to be abated. But he said the Environmental Protection Agency (EPA) handles that. He said he really could not speak to the pricing, but he did note that it drops the cost to have several houses in one spot.

Kunselman led off the short deliberations on the reconsideration by saying he was not that familiar with the “area wells” [aka window wells] on the ground level. He’d also not received answers about questions he’d had on the windows for the mezzanine level.

Outcome on reconsideration: The council voted to reconsider the previous vote on City Place elevation changes. Voting against the reconsideration were Sandi Smith (Ward 1), Tony Derezinski (Ward 2) and Stephen Rapundalo (Ward 2).

Kunselman said that the guardrails around the window wells were not part of the original site plans and now they’re included. What’s their purpose? he asked.

Excerpt from City Place site plan drawings showing the metal guard rail at the area (window) wells.

Responding to Kunselman’s question, Welton said he had seen the first set of plans – he could only talk about the code. He ventured that the reason for for the guardrails is to prevent people from falling into the window wells. Welton allowed that he’d heard that the developer was interested in reconfiguring the interior of the buildings with respect to the bedrooms, but that he had not discussed that with them. Welton said he’d had a conversation about the city code on how egress and sprinkling would work in bedrooms and mezzanine levels.

Kunselman asked if an egress window from the fourth floor would require a fire escape – no, replied Welton. Kunselman came back to the area well issue, asking why they now had guard rails. Rampson indicated that at the site plan stage, planning staff don’t typically get into that level of detail. However, when construction drawings are put together, that’s when elements like guard rails are shown. That’s why they’re shown now, but not before. They’re to ensure that people don’t fall in, Rampson said.

Kunselman asked for confirmation that the guard rails are not a site plan issue. Rampson described them as an appurtenance in a site like a light pole – it’s part of the site, but not the site plan. On an elevation drawing, she said, the city wouldn’t require somebody to show the light poles.

Outcome on City Place elevation drawings on revote: The council voted unanimously to approve the elevation drawings.

Crosswalk Improvements

Before the council was a resolution that called on city staff to make recommendations on improvements to crosswalks throughout the city, identifying locations where technologies like High-intensity Activated crossWalK beacons (HAWK), and Rectangular Rapid Flashing Beacons (RRFB) would be appropriate. The resolution directed city staff to focus on Washtenaw Avenue near Tappan Middle School and Plymouth Road near the intersection of Beal Avenue. According to the resolution, the staff is supposed to present recommendations for the Plymouth & Beal intersection sometime in December 2011.

Crosswalks: Public Commentary

At the time set aside for public commentary at the end of the council meeting, Kathy Griswold said she’d met with the mayor and with city staff to get a clearer understanding of what the sight-distance requirements are at intersections. She reminded the council that she’s advocated in the past for moving a crosswalk at King Elementary School, which is located midblock, to a four-way-stop intersection. The requirements for sight distance, she said, involved two drivers being able to make eye contact. She asked about bike lanes and pedestrians. How can the city have an ordinance that says the pedestrian has the right of way, if you can’t see the pedestrians?

Crosswalks: Council Deliberations

Carsten Hohnke (Ward 5) led off deliberations by thanking mayor John Hieftje for bringing the resolution forward. There’s always an opportunity to review engineering of pedestrian safety as part of the “three Es” – education, enforcement, and engineering. Hohnke called it a useful request to ask staff to explore alternatives. Although they had thought that a HAWK was the best thing out there, now it appears there could be something even better.

Seated is Stephen Rapundalo (Ward 2). He's kidding around with Tony Derezinski (Ward 2) and Sandi Smith (Ward 1) before the meeting.

Stephen Rapundalo (Ward 2) also thanked the mayor for bringing the resolution forward. Rapundalo said he’d heard from many constituents about their experiences with this issue on Plymouth Road and he had some of his own experiences. He described the dangerous situations that arise from the city’s ordinance [cars stopping in a moving stream of rapidly moving traffic, in order to comply with the ordinance]. So as an aside, he said, the council might want to take another look at the language on “approaching” a crosswalk. Does that mean someone who is ready to step into the crosswalk, or someone who is two or three feet away? He ventured that maybe the council could add some clarity to the ordinance.

Tony Derezinski (Ward 2) noted the focus in the resolution on the part of Washtenaw Avenue near Tappan Middle School. He pointed out that it’s near the new Arbor Hills Crossing development. There’ll be a bus stop there, and it’s also near the Washtenaw Recreation Center.

Building on remarks by Rapundalo and Derezinski, Sabra Briere (Ward 1) noted it’s difficult to anticipate that a pedestrian is attempting to cross, when the crosswalk location is in the vicinity of a bus stop: Is the person trying to cross or are they waiting for the bus? In some other communities, Briere said, pedestrians are expected to signal that they’re intending to cross. The council should look at the language that’s been used, she said. Maybe the ordinance needs another level of tweaking.

Briere wondered if the issue could be postponed until the council’s first meeting in November. Hieftje wasn’t amenable to a postponement, saying he wanted to “get this out the door.” Briere was not insistent about the postponement, and stated the everyone had learned that the language is too vague.

Hohnke responded to some of the sentiment that seemed to be emerging that a further revision to the ordinance might be in order. [Hohnke was one of the architects of the initial ordinance revision.] With respect to the ambiguity that exists for bus stops located near crosswalks, he noted that many traffic regulations incorporate some ambiguity and require judgment. As an example he gave yellow lights. He paraphrased the law as requiring motorists to stop for a yellow light “if you can do so safely,” but what is “safely”? By way of background, the Michigan Vehicle Code states:

257.612 Traffic control signals …
Sec. 612.
(1) When traffic is controlled by traffic control signals …
(b) If the signal exhibits a steady yellow indication, vehicular traffic facing the signal shall stop before entering the nearest crosswalk at the intersection or at a limit line when marked, but if the stop cannot be made in safety, a vehicle may be driven cautiously through the intersection.

Hohnke noted that the city’s old pedestrian ordinance required the same analysis of what “approach” meant. It simply required that analysis under slightly different circumstances, namely if a pedestrian was approaching their side of the roadway. [More detail on the differences between the old and the new pedestrian ordinance is included in the July 19, 2010 Chronicle council report, when it was enacted.]

Marcia Higgins (Ward 4) said she appreciated moving the resolution forward that night and wanted to bring back another resolution addressing the ordinance. In the last couple of weeks, she said, she’d seen motorists stop on one side of the street, with motorists behind the stopped car honking their horns and shooting around them. This kind of issue exists in several locations, she said, where cars are traveling quickly and pedestrians don’t want to jump out into a crosswalk.

Hieftje mentioned how some residents had made a video of someone trying to cross the street and having to leap back to the curb to save their life. The question, he said, is how to provide some assurance to pedestrians that the motorist will stop – that was the puzzle to be solved. If the city had just decided to enforce the old state law, they’d have the same issues, he said. The existing state law was being violated routinely. He said his concern was that 4-5 lane roads would begin to divide the city.

Higgins replied to the mayor by saying it was not a 4-5 lane road where she’d observed the phenomenon she’d described – it was at Crest and Liberty. One motorist had stopped and motioned the pedestrians to cross, Higgins said, but the pedestrians could see traffic coming the other way and didn’t want to cross.

Christopher Taylor (Ward 3) said he appreciated the mayor bringing the resolution forward. He said he was also interested in looking at the standard on “approaching.” The previous evening, he said, he’d sent out a constituent communication on the issue and his inbox has lit up. He said it was important to weigh the burden on the driver and the burden placed on the pedestrian.

Stephen Kunselman (Ward 3) also thanked the mayor for bringing the resolution forward. He wondered why the council was limiting things to Washtenaw Avenue and Plymouth Road. What about Packard? Hieftje appeared irritated at the question and cited the first “resolved” clause, which speaks generally to crosswalks in the city. Hieftje told Kunselman that if he wanted the city staff to look at a particular crosswalk, he should send them an email.

Briere noted that one of the big problems that drivers have is that they’re adjusting to pedestrians crossing on streets where they’d never noticed pedestrians before. The idea that people are having to get used to is that they have to be alert to pedestrians, she said. It’s fortunate there’s only been “one rear-ender” so far, she said – both drivers were not from Ann Arbor.

Rapundalo followed up by saying that Briere’s comment had reminded him about the need for signage. He noted that many of the crosswalks are not equipped with signs. For crosswalks that do have signs, he said, they say that local law requires motorists to stop for pedestrians in the crosswalk, but the ordinance specifies “approaching” a crosswalk. That’s where some of the confusion is coming in, Rapundalo said. Hieftje said he was thinking about signs addressing pedestrians, warning them that even though it’s the law, the motorists might not stop.

Outcome: The council unanimously approved the resolution calling on staff to study crosswalk locations in the city.

City Attorney’s Personnel Evaluation

The council held a closed session at the end of their meeting based on the part of the Open Meetings Act that reads:

15.268 Closed sessions; permissible purposes.
Sec. 8. A public body may meet in a closed session only for the following purposes:
(a) To consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing. A person requesting a closed hearing may rescind the request at any time, in which case the matter at issue shall be considered after the rescission only in open sessions.
…

The personnel evaluation was for city attorney Stephen Postema. The city attorney and the city administrator are the two positions hired by the city council.

At the meeting, the council did not publicly address the issue of whether Postema had fulfilled the statutory requirement for a closed session by requesting that his personnel evaluation be closed. However, Postema’s contract contains a clause specifying that: “The results of the evaluation shall be in writing and shall be discussed with the Employee in closed session.”

When the council emerged from its closed session, Stephen Rapundalo (Ward 2) moved a resolution to amend Postema’s contract by allowing him to cash in 250 hours of accrued banked time before the end of the calendar year, but did not change his base salary. The award of the cash-equivalent of roughly 12% of his annual salary was based only on Postema’s performance in 2009-10. Postema’s base salary as reflected in city records for FY 2010 stood at $141,540.

Outcome: The council voted unanimously to authorize Postema to cash in 250 hours of accrued time.

After the vote, Postema volunteered that it was a pleasure to serve the city and that he and the council shared a common concern.

Postema started working for the city in 2003. After awarding percentage increases in Postema’s base salary in the early part of his career with the city, the council has more recently opted to award one-time lump sums, extra vacation days, or the ability to cash in accrued days, as it did this year.

An overview of Postema’s compensation history:

• Oct. 24, 2011: can cash in 250 hours before Dec. 31, 2011
• Nov. 5, 2009: can cash in 120 hours before June 30, 2010
• Oct. 20, 2008: paid lump sum of 2.75% annual salary ($142,000); cash in 150 hours before June 30, 2009; allowed to engage in outside legal work
• Nov. 5, 2007: base salary increased by 2.75% for “merit increase” and 1.25% “market increase;” vacation days increased to 25 days per year.
• March 20, 2006: can cash in 80 hours of unused vacation time before June 30, 2006.
• Oct. 5, 2005: base salary increased at Postema’s discretion up to 3%; awarded 80 hours of vacation time.
• Sept. 13, 2004: base salary increased by 3% to $130,810; annual vacation days increased to 22 days;
• April 3, 2003: started work at base salary of $127,000 (20 vacation days in addition to legal holidays)

Communications and Comment

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

Comm/Comm: Open Door Thank You

Sabra Briere (Ward 1) offered thanks to city administrator Steve Powers, who’d greeted her at the front door of city hall the previous evening to let her and residents into the building. She noted that the previous night was not a normal caucus night based on the council’s calendar set at the beginning of the year. But because the council had added a “regular” meeting to its calendar, the associated caucus, which is held the Sunday evening before all regular council meetings, was also due to be held.

Before the meeting, Sabra Briere (Ward 1) chatted with William Hampton, president of the Ann Arbor chapter of the NAACP.

Briere said it was delightful to have someone waiting with a key – three residents had showed up for the event.

[No other councilmembers attended the caucus on Oct. 23, 2011. The majority of councilmembers, including the mayor, have a record of perfect non-attendance at caucus for the calendar year 2011. The meetings are, according to the city's website, meant to provide a chance for councilmembers "to discuss and gather information on issues that are or will be coming before them for consideration." The meetings are also described on the website as "optional."]

Comm/Comm: NCCAP Freedom Fund Dinner

William Hampton, president of the Ann Arbor branch of the NAACP, thanked the council for the chance to speak. He called their attention to the annual Freedom Fund dinner on Nov. 5 at 6:30 p.m. He said that several councilmembers were planning to come and he appreciated that. Although the mayor won’t be there, he said, mayor pro tem Marcia Higgins would be. This year, the speaker would be someone who many people have not heard of, he said. However, it was someone who was a sit-in demonstrator, who had been arrested and put in jail.

Comm/Comm: Civil Rights

Thomas Partridge said he has consistently urged the council to take civil rights into consideration and to provide access for the most vulnerable residents to voting booths that are properly maintained. But the council has ducked every opportunity to do that, he contended.

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

Next council meeting: Thursday, Nov. 10, 2011 at 7 p.m. in the council chambers at 301 E. Huron. [confirm date]

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The plan calls for tearing down the one-story building and constructing a two-story, single-family, owner-occupied house with an attached two-car garage. The entrance will be oriented to the north, and the garage will be accessed from the public alley on the west side of the site. The site is directly north of the Armory condos and south of a two-story residential rental property.

The project requires a site plan because the single-family house is on property that’s not zoned solely for residential purposes. It’s zoned D2 (downtown interface) and is located in the Old Fourth Ward Historic District. The Ann Arbor historic district commission already reviewed the site plan and issued a certificate of appropriateness at its Feb. 10, 2011 meeting. The Ann Arbor city planning commission had given its recommendation for approval of the site plan at its March 15, 2011 meeting.

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

The project requires a site plan because the single-family house is on property that’s not zoned solely for residential purposes. It’s zoned D2 (downtown interface) and is located in the Old Fourth Ward Historic District. The Ann Arbor Historic District Commission has already reviewed the site plan and issued a certificate of appropriateness at its Feb. 10, 2011 meeting. The project will next be voted on by city council for final approval.

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

Sabra Briere (Ward 1) and Carsten Hohnke (Ward 5) confer during a brief break at the city council meeting. After the break, Hohnke withdrew his motion that would have asked the council to consider the Heritage Row project for a third time in total, and for the second time at their July 6 meeting. (Photos by the writer.)

Rejection of the district then set off a series of parliamentary procedures by the council. The actions were prompted by concern that without the protection afforded by the historic district, seven houses would be demolished through construction of an already-approved matter-of-right project (MOR), City Place.

So the council brought back for reconsideration a different project on the same site – Heritage Row, which the council had rejected at its previous meeting. A key feature of the Heritage Row project, which includes three new apartment buildings, is that it would also retain the seven houses.

The vote on the reconsideration of Heritage Row failed. That resulted in an attempt by Carsten Hohnke (Ward 5) to have the council reconsider the historic district, which the council had just rejected. Hohnke’s council colleagues weren’t interested in revisiting the issue.

So Hohnke then began the parliamentary procedure to reconsider the Heritage Row project – for the second time that evening and for the third time total. The move required another rule suspension – this one concerning the number of times a question could be considered.

After a brief recess, however – during which Hohnke was apparently persuaded that developer Alex de Parry would not actually follow through and build the City Place MOR project – Hohnke withdrew his motion. A comment from Ann Arbor resident Ethel Potts, who attended the council meeting and who has witnessed more than four decades of city politics, summarized the sentiments of many in the audience: “As weird goes, this was pretty weird.”

A moratorium on demolition, which covers the area considered by the historic district study committee, will remain in place through Aug. 6. The council meets on Aug. 5, after the primary elections on Aug. 3.

In other business, the city council approved a resolution opposing legislation recently enacted by the state of Arizona that requires local law enforcement officials to investigate a person’s immigration status, when there is a reasonable suspicion that the person is in the U.S. unlawfully.

The council transacted a range of other business and communications as well. Those issues are covered in Part 2 of the July 6 meeting report. Part 1 focuses on the Arizona immigration law and the historic district.

Immigration Status: Against Arizona Senate Bill 1070

Before the council was a resolution sponsored by Sabra Briere (Ward 1) and Sandi Smith (Ward 1) that expressed opposition to a recent law enacted in the state of Arizona that requires local law enforcement to investigate a person’s immigration status when there is a reasonable suspicion that the person is in the U.S. unlawfully. [draft of resolution] Briere had announced at the council’s previous meeting that she would bring a resolution like this forward.

When the council approved the evening’s agenda, Margie Teall (Ward 4) proposed moving the item up so that it could be considered immediately following the public commentary at the start of the meeting, to accommodate those who were attending the meeting just for that item. That agenda change was approved with dissent from Marcia Higgins (Ward 4). Higgins left the table during public commentary, and did not return until well after the vote on the immigration law had been taken.

One of the themes that emerged during the public comment period was that racial profiling already exists in the Ann Arbor community – which led the council to ask chief of police Barnett Jones to address the issue from the podium.

Councilmembers also stressed that the resolution had not used city staff resources, a theme that echoed sentiments expressed at a recent candidate forum held in Ward 1, when incumbent Sandi Smith and challenger Sumi Kailasapathy were asked if they felt it was appropriate for the city council to address national-level issues.

Immigration Status: Public Comment

Introducing herself as a recent graduate of Huron High School and a community organizer for a Washtenaw County worker center was Jasmine Franco. She described her own background, beginning with her parents’ arrival in the U.S. from Guatemala in the 1990s. Two years after that, she was born in Chicago. She lived in Ann Arbor for 10 years with her family until her mother was sent back to Guatemala. In 2008, she said, her Michigan ID expired. Despite her U.S. citizenship and her possession of a valid birth certificate, a Social Security number and a U.S. passport, she was denied the right to a Michigan ID. The reason, she had been told, was that several undocumented immigrants had used her home address for Michigan IDs.

Franco was then given a case number and an agent, who told her that to get any form of ID, he had to visit her home and see her documents in person, to validate her citizenship and residency. For over two years, Franco said, she tried to arrange a home visit, but the agent refused to return her calls. When she complained, she said, she was told that her agent had been laid off. She was assigned a new agent, who continued to ignore her requests. It was only after the intervention of Pastor Melanie Carey, a woman with whom Franco was living, that Franco said she was able to get her Michigan driver’s license.

The agent never met with her in her home to verify her citizenship or residency  – all it took was for Carey to tell the agent over the phone that Franco was a citizen living in her home. Two weeks later the agent delivered the ID into Carey’s hands, without Franco needing to be present. Franco contended that her experience was not unique. If Arizona-style legislation passes in Michigan, she warned, countless citizens will be denied their rights. The resolution before the city council, Franco said, sends a clear message to the rest of the country: We will not tolerate Arizona-style legislation. She urged support of the resolution.

Blaine Coleman began by addressing the council in Spanish, and then provided a translation: Remember that Arizona has been occupied since 1848 – like Palestine is occupied today. He said he was glad that city councils were condemning the government of Arizona for passing such a blatantly racist law that can only result in racial profiling against anyone who the government decides looks like they’re not a citizen. He asked the city council: How could they be so brave in condemning Arizona for that law it had enacted, and “enforce such silence” when it comes to racial profiling against Palestinians? How is it, Coleman asked, that it’s only for one night that the Ann Arbor city council stands against racism and only against Arizona, but never against Israel, or against the U.S. government for the murder of Iraqis and Afghans? Coleman then concluded his remarks by repeating the question five times: How much is an Arab’s life worth to you?

Mozhgan Savabiesfahani told the council it was hard for her to believe that they were against racism – she’s been coming to the council for five to six years to speak about racism in Israel, but the council had never acknowledged her existence. That, she concluded, is racist. She showed the council a flier she’d brought that presented research concluding that the U.S. bombing in Fallujah had a negative effect on infant mortality and increased cancer rates. Councilmembers had refused to accept the flier from her, she reported. “You want to tell me you’re not racist?” She concluded her remarks by saying, “Boycott Israel!”

Speaking on behalf of Michigan Peaceworks and its immigrant rights task force was Max Heirich. He began by framing the question as one of opportunity: What is the opportunity represented by the resolution? It’s relevant to Ann Arbor, he said, because 160 area families had been disrupted by Homeland Security actions – parents have been separated from children, children have been put in foster care, he said. Law enforcement actions are proceeding without search warrants, he said, similar to what would happen if Michigan were to enact laws being introduced in the legislature now, which are similar to laws already enacted in Arizona. Taking a stand in Ann Arbor could be a model for other cities, he said. He reminded the council that the U.S. is a nation of immigrants. Various immigrants have faced oppression at different points in the country’s history, he said. The resolution is an opportunity to do something positive, instead of simply saying, “Isn’t it too bad.”

Mary Anne Perrone began by addressing the council in Spanish, then translating her remarks: She came to speak to the mayor and the city council with a deep conviction, asking them to vote in favor of the resolution. She’s lived in Ann Arbor for over 20 years, she said, and is a member of the Interfaith Council for Peace and Justice, and also the Washtenaw Interfaith Coalition for Immigrant Rights. She said that although she is a U.S. citizen – the granddaughter of immigrants – if she were in Arizona and she had spoken in her adopted language of Spanish, that could form the basis of a suspicion that she is not here in the U.S. lawfully.

Law enforcement officers could then ask her to produce documents and to detain her. It’s important, Perrone said, that cities like Ann Arbor raise their voices as a conscience for the nation and to make clear that using intolerance and discrimination is not the way that we want our government to operate. In Ann Arbor, Perrone said, we care about art, we care about parks, we care about rivers, and we care about people’s human rights.

Deputy director of the American Civil Liberties Union of Michigan, Mary Bejian, appeared in order to give the ACLU’s official endorsement of the resolution. She emphasized that it’s not just that Arizona’s legislation – as well as the pending legislation in Michigan – gives the police the right to ask people to prove their lawful residence, but rather it actually requires them to do that. Law enforcement officers face penalties if they’re found to be negligent. The U.S. Department of Justice, Bejian reported, had filed suit this week against the state of Arizona regarding the legislation – the ACLU and a number of other organizations had already filed suit back in May.

Mary Bejian, deputy director of the American Civil Liberties Union of Michigan.

Bejian said they were confident that the law will be shown to be unconstitutional – the law invites and compels racial profiling. The notion of “reasonable suspicion,” she said, is a vague legal concept. What other possible criteria would law enforcement officers use, other than the color of one’s skin, whether someone speaks English with an accent or a foreign language? Supporters of the law are not able to offer any other criteria that would constitute reasonable suspicion, other than looking or sounding foreign, she said.

Bejian pointed out that the law enforcement community was not happy with the legislation, either. The Arizona Association of Chiefs of Police has gone on record against it. Locally, she said, law enforcement officials have said that local law enforcement should not be doing the job of federal immigration agents. For one thing, she said, they are not trained to do that job. There are also no local resources to do this kind of work, she said.

Vivianne Schnitzer told the council she’d lived for 10 years in Ann Arbor among the diverse population of residents. She said she considers Ann Arbor to be an enlightened city. The city’s humanity and solidarity are now being tested, she said. Tonight, she suggested, we could choose one path or the other, and it would have profound implications for our children and grandchildren. One day they will ask us: “What did you do that day?” We have to reject the politics of fear and chose the politics of reason, she said.

Laura Sanders introduced herself as an Ann Arbor resident, local therapist, and instructor at the University of Michigan School of Social Work. She told the council she was representing the Washtenaw Interfaith Coalition for Immigrant Rights. They’d documented over 160 cases of raids, detainments and deportations of immigrants, many of which included participation of local law enforcement in addition to Immigration and Customs Enforcement (ICE). Those cases showed that racial profiling is already playing a major role in traffic stops that are resulting in deportations of innocent and hard-working immigrants, she said.

There’s not any admission by officers, Sanders said, that the reason they’ve stopped people is they’re brown-skinned, or they speak with a thick accent, or that they’re wearing their hats to the side, or because they’re driving a car with a decal of a foreign flag. They’re then interrogated about their immigration status and arrested for offenses for which white people would simply be ticketed.

Laura Sanders spoke on behalf of the Washtenaw Interfaith Coalition for Immigrant Rights.

Sanders then ticked through a list of actual of traffic stop offenses for which immigrants have been arrested in the community: cracked windshield, rosary hanging off rear-view mirror, low air in tires, crooked license plate, malfunctioning tail light, failure to use blinker turning from private driveway onto street, expired license plate, driving on expired license, possessing expired license sitting in passenger seat, broken headlight, making a wrong turn, failing to change lanes when passing a car pulled over by the police, failing to wear a seat belt, making a fast stop. There’s already a racial-profiling problem, she contended. It’s important to take a proactive step against it, she said. She asked everyone attending in support of the resolution to stand, and an estimated 50 people rose from their seats.

Samantha Narawski introduced herself as a University of Michigan student working with a group called One Michigan, a statewide organization made up of undocumented and documented youth who were fighting for immigrant rights and the Dream Act. She explained how the Arizona legislation had affected a member of the Ann Arbor community – a co-founder of One Michigan, Mohammad Abdollahi. He’d lived in Arizona for a month, organized there, and participated in a sit-in.

Abdollahi came to Ann Arbor as a three-year-old from Iran, when his father was working on his doctorate at the University of Michigan. An attorney had failed to inform the family about a $20 fee change and that had resulted in the family being undocumented, Narawski explained. Abdollahi grew up volunteering at the Ozone House and cheering on the Huron High School River Rats. He didn’t know what it meant, she explained, until his friends started applying to colleges and he couldn’t because he didn’t have a Social Security number.

Abdollahi attended Washtenaw Community College and earned enough credits to transfer to Eastern Michigan University. At the admissions office at EMU, they told him he was the kind of student they wanted there. But a few minutes later, she continued, the admissions officer’s supervisor retracted the offer of admission, saying that they had missed the fact that he’d checked the box indicating he was not a citizen.

He searched out resources online, Narawski said, and headed to Arizona with three undocumented students to participate in a sit-in. They asked that the Dream Act be enacted, which would allow undocumented students to receive citizenship. She asked the council to stand with Abdollahi and oppose the Arizona legislation, as he had done. “Do it for Mohammad and the immigrant community here.”

Immigration Status: Council Deliberations

Sabra Briere (Ward 1), who drafted the resolution that was also sponsored by Sandi Smith (Ward 1), began by thanking Margie Teall (Ward 4) for moving the item forward on the agenda.

Briere ticked off various groups who had come to this county to escape religious persecution, to seek economic opportunity, or political freedom. Her own ancestors arrived before immigration was an issue – to leave the Old World behind and to find new opportunity. The men had fought in every war, including the American Revolution. The women had done what women always did – ran the farms, businesses, the home, sacrificing for freedom or just keeping their heads down. Each generation defines freedom for itself, she continued, but also fights to defend that freedom. In that spirit, seven years ago the council had passed a resolution protesting the erosion of civil liberties under the U.S. Patriot Act, Briere said. [Excerpted minutes from the July 7, 2003 Ann Arbor city council meeting.]

Stereotyping of the sort that is encouraged by the Arizona legislation, Briere said, is at its very heart against American principles. The U.S. attorney general had filed suit that day against the state of Arizona, Briere said, and a broad variety of academic organizations spoke against the Arizona bill immediately after it was passed. City councils and city governments “from Arizona to Minneapolis” have voted their opposition to the legislation. She asked her colleagues to support the attorney general’s position that immigration enforcement is properly the purview of the federal government, not the state. She asked the council to support the Obama administration to address the problems with the immigration law.

During public commentary on the subject, the speakers’ comments were met with audience applause, and the pattern continued after Briere’s remarks. Mayor John Hieftje admonished the audience that “we don’t have applause for a councilmember statement.”

“Now you say that!” quipped Sandi Smith (Ward 1), who was next to speak. She thanked Briere for doing “the heavy lifting” on the resolution. It had been simply reviewed briefly by the city attorney’s office, and she stressed that very few city resources had been used to accomplish the resolution. Why would Ann Arbor take on something like this? Smith’s answer: “This is what Ann Arbor does.” And the council would finish their entire agenda, Smith said, no matter how late they needed to stay.

Michigan as a state had become known as an unfriendly place, Smith cautioned. Passing Arizona-style legislation in Michigan would contribute further to that. The language of Arizona’s legislation – “without a warrant,” for example – was frightening to her, she said. She encouraged the council to support the resolution.

Margie Teall (Ward 4) echoed the sentiments of Smith and Briere, and stressed that although it might not appear that it had to do with Ann Arbor or its operation, it’s sometimes important to make a symbolic statement and to share that statement with other cities. In the past, she said, Ann Arbor had sometimes raised its voice as a beacon to other communities and the city can be proud of that.

In response to a constituent question she’d received that day, Teall explained that any councilmember can place a resolution on the agenda. She also stressed that no other business was being delayed or postponed or otherwise neglected, due to the vote on the immigration resolution.

Tony Derezinski (Ward 2) echoed the comments of Teall, noting that the council had a long agenda that night. But the council had spoken out on other issues like this, giving as an example a resolution that he’d sponsored recognizing a veterans group and a peace group who were working together on a water project in Iraq. Things like that deserve recognition and the council’s impetus behind it. If you look around at the make-up of the council, he said, you heard some curious names like “Derezinski,” “Rapundalo,” “Hohnke” and “Hieftje.” Those are names from other countries, Derezinski said. It’s an immigrant nation, and we’re all immigrants, he said. It’s a positive thing that new people are constantly coming into the country, he said: “They will save us, when our blood gets old and tired.”

Hieftje expressed his agreement with the resolution and thanked Smith and Briere for their work on it.

Stephen Rapundalo (Ward 2) indicated that he was greatly troubled by elements of the Arizona legislation – “they are vile at best,” he said. He said he abhorred the thought of immigrants being pulled aside because of the color of their skin or for other reasons. He noted that he was a landed immigrant himself and except for the color of his skin, he could be pulled over – he noted he had a foreign flag on the back of his car. [Rapundalo has dual Candadian-U.S. citizenship.] He said he wholeheartedly supports the idea that immigration is a federal matter – just as Briere had asked the council to support the U.S. attorney general’s position on that. However, for that reason, he said that he regrettably could not support the resolution.

Rapundalo said he would be consistent with his position on similar issues in the past – it’s not an issue for the Ann Arbor city council at the moment. When there is a piece of legislation that has a direct impact on local citizens, he said, he’d be more than happy to consider it then. He’d received many emails from supporters of the resolution, but also many messages asking why the city council was not focusing more on local issues. He allowed that his colleagues were correct in saying that they would finish the agenda that night, despite their consideration of the resolution. But he said that there were more pressing issues – roads and budgets, for example.

Responding to Rapundalo’s remarks, Hieftje noted that the council had passed resolutions previously concerning the Patriot Act and the war in Iraq. He contended that it was rare that the Ann Arbor city council took up such resolutions, and said he felt it did not take time away from other important business that came before the council. He disagreed with the idea that it was an action that was inappropriate for the Ann Arbor city council.

Responding to the remarks of Laura Sanders during public commentary that racial profiling was already happening in the Ann Arbor community, Hieftje said that Ann Arbor chief of police Barnett Jones and Washtenaw County sheriff Jerry Clayton would like to know about those issues.

Outcome: The resolution opposing the Arizona law on how local law enforcement officers are to handle possible immigration violations was approved, with dissent from Rapundalo. Marcia Higgins was not at the table when the vote was taken.

Immigration Status: Response from Police Chief

After the vote was taken, chief of police Barnett Jones was asked to the podium by Sabra Briere to respond to the issue concerning the number of people who had been arrested during ICE raids.

Carsten Hohnke (Ward 5) and Sabra Briere (Ward 1) talk with Ann Arbor chief of police Barnett Jones, right.

Jones indicated that he didn’t know where Laura Sanders had gotten her numbers from: “Her figures are her figures,” he said. He asked that he be forwarded any statistics that are relevant to the city of Ann Arbor. He said he thought that the bulk of Sanders’ figures came from outside the city. He indicated that he’d met with Sanders and her group and had worked with her. He described the relationship of the Ann Arbor police with the undocumented community as “wonderful.” There’s a council resolution that addresses how local law enforcement is supposed to handle situations like these.

From the council’s 2003 resolution cited earlier by Briere:

RESOLVED, That the Ann Arbor City Council, as a matter of public policy, directs the Ann Arbor Chief of Police, to the extent permitted by law, to:

1. Continue to limit local enforcement actions with respect to immigration matters to penal violations of federal immigration law (as opposed to administrative violations) except in cases where the Chief of Police determines there is a legitimate public safety concern and in such public safety instances, to report the situation to the City Council no later than 60 days after the incident.
2. Continue to refrain from covert surveillance of and/or collection and maintenance of information on individuals or groups based on their participation in activities protected by the First Amendment, such as political advocacy or the practice of a religion, without a particularized suspicion of unlawful activity.
3. Affirm the existing practice, as required by Michigan state law, of providing simultaneous notice of the execution of a state court search warrant to any resident of the City of Ann Arbor whose property is the subject of such a warrant, except in cases of anticipatory search warrants.
4. Report to the City Council any request made by federal authorities for the Ann Arbor Police Department to participate in any activity under the USA Patriot Act, to the extent the Chief of Police has knowledge of such request.
5. Refrain from participating in informational interviews conducted by federal authorities similar to those conducted by the Federal Bureau of Investigation (FBI) in early 2002 in Ann Arbor of individuals not suspected of criminal activity, unless the interviewee has specifically requested the presence of an AAPD official;
   RESOLVED, That the City Administrator be directed to seek semi-annually, by form letter, from federal authorities the following information on behalf of the residents of the City of Ann Arbor:
6. The names of all residents of the City of Ann Arbor who have been arrested or otherwise detained by federal authorities as a result of terrorism investigations since September 11, 2001; the location of each detainee; the circumstances that led to each detention; the charges, if any, lodges against each detainee; the name of counsel, if any, representing each detainee;
7. The number of search warrants that have been executed in the City of Ann Arbor without notice to the subject of the warrant pursuant to Section 213 of the USA PATRIOT Act;
8. The extent of electronic surveillance carried out in the City of Ann Arbor under powers granted in the USA PATRIOT Act;
9. The extent to which federal authorities are monitoring political meetings, religious gatherings or other activities protected by the First Amendment within the City of Ann Arbor;
10. The number of times education records have been obtained from public schools and institutions of higher learning in the City of Ann Arbor under Section 507 of the USA PATRIOT Act;
11. The number of times library records have been obtained from libraries in the City of Ann Arbor under Section 215 of the USA PATRIOT Act;
12. The number of times that records of the books purchased by store patrons have been obtained from bookstores in the City of Ann Arbor under Section 215 of the USA PATRIOT Act;

Jones said that he was appalled that Sanders’ presentation made it sound like the Ann Arbor police department is out looking for undocumented immigrants and that they’re using racial profiling to effect those arrests. “This is a professional law enforcement agency, with professional men and women, [...] who know what the rules are [...],” Jones said. He said that he figured there were some of those men and women in uniform who may have been watching the city council proceedings on television, who might have been a little upset by Sanders’ statements. [City council meetings are broadcast live on Community Television Network.]

He concluded by stressing that he felt that most of the stats Sanders had cited related to incidents outside of Ann Arbor and that he’d asked her to provide any specific information about problems inside the city – as she’d done in the past.

He concluded by saying, “And I will calm down now!”

Fourth/Fifth Avenue Historic District

Before the council for its second and final reading was a proposal to accept the recommendation of a study committee that had been established on Aug. 6 last year, to create a local historic district along Fourth and Fifth avenues south of William Street and north of Packard. Detailed background can be found in previous Chronicle coverage: “The Constitution of Historic Districts” and “S. Fifth Avenue: Historic District, Development.”

The proposed district was controversial for some who oppose the creation of any district at all in the general area, as well as for some neighbors living south of Packard Street, who objected to the way the proposed boundaries were drawn. Many residents living in the 500 blocks of Fourth and Fifth avenues, south of Packard just north of Madison, wanted to be included in a historic district as well.

Historic District: Public Hearing

Identifying himself as the only resident member of the historic district study committee was Tom Whitaker. He asked for the council’s support of the study committee’s recommendation to create a historic district. He said that state officials who had reviewed a preliminary version of the report had called it “exemplary.” The committee had adopted the recommendation to create the district unanimously, he said, just as they had recommended that the council have an additional area studied, which includes the block south of Packard Street, where many residents support the establishment of a historic district.

Whitaker said he didn’t agree with the attempts by some of those residents to “sabotage” the creation of a smaller district. The boundaries recommended by the report, he said, would withstand any of the “baseless” challenges that had been made. Rejecting the district wouldn’t be fair to the owners of individual properties that had previously been part of a citywide district that had been ruled legally invalid by the 2001 Draprop decision – they’d been waiting to have their properties reinstated. It also wouldn’t be fair, he said, to the property owners in the neighborhood who had seen three development proposals for the neighborhood in the last few years, all of which were counter to the city’s master planning and zoning, he contended.

A historic district would not mean the end of improvements in the area, Whitaker said, as the experience of other historic districts showed – neighborhoods stabilize and property values rise under historic designation, he said. Liberty Lofts was built in a historic district, he pointed out, and the new CVS on State Street is being built in a historic district. The Zingerman’s Deli expansion is likely to be approved in a historic district, he said. In addition, he continued, large numbers of smaller homeowner projects are routinely completed in historic districts with a high percentage requiring only staff approval. Those requiring approval from the historic district commission have an approval percentage better than 90%, he said. The older neighborhoods, as well as the historic neighborhoods, are what define Ann Arbor to visitors and what attract people to live here and to stay here. If the council chose not to support the historic district, then Whitaker asked that they explain what they’d done to help resolve the conflict. “None of you can afford to sit back any longer and watch this neighborhood being torn apart,” he warned.

Kristi Gilbert introduced herself as a member of the study committee and urged the council to vote for the district. She said that she would defer to Whitaker and others like him who are more skilled in making the arguments for a historic district. She noted that they are not just passionate about historic preservation, but are equally concerned about sustainability, a dense urban environment and economic vitality. All of these things can happen together, she said, and that had happened in Ann Arbor over the last 30 years with its 14 historic districts, many of which are in the downtown core.

Gilbert referred to the Michigan Historic Preservation Network conference recently, when mayor John Hieftje had bragged about the 14 historic districts and why they make Ann Arbor so beautiful. There’s some good modern architecture in Ann Arbor, she said, but the majority of it doesn’t help define the identity or brand of Ann Arbor.

Tom Luczak introduced himself as a resident of the proposed historic district and urged the council to support the recommendation in the study committee’s report. He allowed that it is council’s judgment call as to whether they value having the houses of the neighborhood preserved, but he noted that they are under tremendous development pressure. He contended that a number of people who are supportive of a district were not there that evening, but that they would be around in early August. [The primary election will be held on Aug. 3 – several councilmembers are running for reelection.]

Luczak reminded councilmembers that many of them had placed importance on process with respect to the city planning commission’s recommendation. So if they wanted to respect process, he contended, then they should support the recommendation of the committee. If the historic district is not approved, he asked, what would be his motivation not to sell his house to a developer? He called the argument that the boundaries are wrong a “red herring.” He said he supported the idea of expanding the district later, but asked the council not to “throw the baby out with the bath water.”

Claudius Vincenz, who lives south of Packard Street, an area not included in the study committee’s recommended district, showed the council a poster of Gottfried Maedel who used to live in Vincenz’s house. The German past of the block, he said, was not included in the study committee’s report. He said he agreed with Tony Derezinski (Ward 2), who had called the exercise a “self-fulfilling prophecy.”

However, Vincenz said, it would not have been a self-fulfilling prophecy if the committee had used their expertise to write a report that was consistent with the Secretary of the Interior guidelines, which it was not, he contended. The area of greatest concentration of historical value, he said, was actually south of the proposed area. He contended that the committee had suppressed evidence of many German founders of Ann Arbor who had lived south of the proposed area.

The most blatant omission, Vincenz said, was the last remaining residence of Raoul Wallenberg, who had stepped forward during World War II and saved thousands of Jews from the gas chambers. He called the resolution suggesting the council study the area south of Packard evidence that the committee knew something was not quite right, characterizing it as a way of saying, “We wash our hands in innocence.”

Ellen Thackery, who is the Michigan Historic Preservation Network field representative, asked the council to pass the resolution establishing a historic district. She reminded them that the neighborhood is in the city’s central area, and the central area plan recognizes that the neighborhood is integral to the city. One of the most effective means of preserving the character of the area, she said, is a historic district. Historic districts have been upheld at the U.S. Supreme Court level, she said, citing the Penn Central case.

Likely responding to a letter conveyed a few weeks ago to the city council by attorney Peter Webster, which argues that a local historic district creates a preservation easement, Thackery said that historic districts do not create an easement. Historic preservation easements, she said, are donated by a property owner and can be donated by any owner of a historic property. They can be donated on National Register properties, properties with state markers, or properties in local historic districts or properties without such a designation. Such easements are perpetual and run with the land. That contrasts with local historic districts, she said, which have a legal process for establishment, for their amendment, and their dissolution.

Piotr Michalowski told the council that he’d written to them on many occasions and did not want to repeat himself. Instead, he said, he wanted to remind the council what the purpose of a historic district is: to manage change. It doesn’t stop any change, but rather manages it, and that’s all they were asking for. He contended that the reason there is pressure for development in that neighborhood is because land is cheaper than it is downtown. It was not simply the recent developments that had been proposed in the neighborhood, like City Place and Heritage Row, but also other proposed developments that could come very soon, if a historic district is not established.

Scott Munzel introduced himself as legal counsel for the Fifth Avenue Limited Partnership, the owner of the Heritage Row project. He criticized the proposed district as both bad law and bad public policy. First, he said, the recommended district as described in the report does not meet the requirements described in the statutes, which require that the buildings be related by archeology, architecture, history, engineering, or culture. The “broad net” that is cast in the study report does not meet those criteria, he said.

Stephen Kunselman (Ward 3), left, chats with local attorney Scott Munzel during a break. Behind them, Stephen Rapundalo (Ward 2) talks with Sandi Smith (Ward 1).

By the study committee’s standard, Munzel said, every building that is near the downtown or the University of Michigan would qualify as historic and should be included in a historic district. Munzel cited the Draprop case, in which an Ann Arbor historic district had been invalidated, and said that based on that case, the proposed historic district could be invalidated on the same reasoning. Secondly, he said, the district may violate equal protection requirements in that it treats similarly situated landowners differently.

Along Jefferson Street to the east are examples of buildings that were excluded from the district, and Munzel noted that building south of Packard Street had been excluded. There is no rational basis he could see, on reading the report, for why those areas were excluded. He noted that the council had expressed concern through its earlier resolution on Arizona’s immigration law about violation of the U.S. Constitution, and he suggested that the historic district might violate the equal protection provisions of the Constitution.

Munzel also contended that establishing a historic district would amount to bad public policy. The role of the urban core is changing, he said. Environmental, social, and economic forces are pointing to the need for increased density. The area of the proposed district is surrounded on the north and west by the commercial core, on the east by the university and on the south by university and industrial uses, so it may be suitable for redevelopment proposals under the control of the city council. A historic district would put the decision on proposals, which could otherwise meet city goals, in the hands of the city’s historic district commission. It amounted to an abdication of council’s ability to control public policy. He reminded the council that everyone is free to preserve their own houses, without a historic district.

Much later in the public hearing, Thomas Partridge, like Munzel, also drew a connection to the discussion about the Arizona legislation on immigration. Partridge noted that the council had gone from talking about constitutional rights and human rights issues to talking about the selfish and restrictive attitudes of property owners. If the historic district were established, he asked, what will that mean for the immigrants coming to Ann Arbor seeking places to live? He concluded by saying there needs to be a compromise.

Jane Belanger introduced herself as the owner of two properties on South Fifth Avenue. She was one of the signers of a protest petition that was submitted to the city around 2 p.m. that day. She also told the council that she owned property in the Kerrytown area and lived in the Old West Side. She thus had some experience as an owner and investor in historic districts. She said she didn’t agree that her property values increased due to their historic designation – but rather due to the proximity to the university and to the downtown area. The properties are expensive to maintain, she said.

Belanger said the district had been proposed in order to block a specific development in the neighborhood. She said that people should take care of their houses, whether they are in a historic neighborhood or not, and that a historic neighborhood made it more difficult. She said she’d had positive encounters with the historic district commission for work she’d wanted to undertake, but that the process had taken longer than it would have otherwise.

Brad Mikus told the council that he thought the houses were old but not necessarily significant. He said it was bad public policy to use historic districts to stop development. But he also indicated that he thought the City Place matter-of-right development is a “turd.” No one likes it, he said, so whatever it takes to stop it is potentially a good idea.

Brad Mikus appealed to his smart phone to quote from the city's central area plan during the public hearing on the historic district.

Looking at the central area plan, Mikus said that the repeated goal and objective in the document is to “preserve” various aspects of the neighborhoods. From that he concluded that the zoning didn’t really match the master plan. He cited a passage from the Calthorpe report that seemed to indicate that removal of historic districts could facilitate new zoning. Running out of time, Mikus quickly concluded by saying he was in favor of establishing a historic district.

Betsy de Parry, who is Alex de Parry’s wife and part of the Heritage Row development team, reminded the council that the Heritage Row project had been rejected at the last council meeting. That project, she said, would have preserved seven houses on South Fifth Avenue. They were interested in preserving the houses, she said, but a historic district was not the way to do that. The study committee was formed hastily, she said, in order to stop the City Place matter-of-right project, which met existing zoning.

She contended that the council resolution establishing the committee contained an error when it claimed that the area included the most intact 19th century streetscape in the city – the 400 block of South Fifth Avenue. That block is actually interrupted by two parking lots and a large playground created by the demolition of early houses, she said. She pointed out that many of the owners of houses outside the recommended district want to be included in a district if one is established. But many of the owners of properties inside the proposed district are opposed to being included in the district, she said, which is demonstrated by the petitions that had been submitted that day. The creation of a district, she concluded, would be for the wrong reasons.

Ellen Ramsburgh, who is a historic district commissioner, told the council that she applauded the committee’s work and understood the conflicting views about the southern boundary. She suggested that the council appoint a study committee to study the expansion. She reminded the council that historic districts are a tool that can be used to manage development and to preserve neighborhoods. A good example of a historic district that works is the Old West Side historic district, she said. The city’s historic district commission, she said, performs its function well. The commission approves about 90% of the proposals that are presented to it. She said that projects are improved by going through the historic district commission review.

Susan Wineberg introduced herself as a member of the historic district study committee. She said she’s lived in the Old Fourth Ward since 1983, when a historic district was established there, and that she’d only seen improvements. It had resulted in the creation of a neighborhood group and a sense of identity for the neighborhood. She said that 95% of the neighborhood is rental, but the renters benefit from having the neighborhood group advocate for everything from parking permits to street cleaning to tree planting.

Seated are three members of the historic district study committee (left to right): Susan Wineberg, Kristi Gilbert, Patrick McCauley.

Wineberg also sought to dispel a misconception that historic districts regulate paint colors or issues inside of houses. A historic district does not regulate paint colors and deals only with the exterior of the houses, she said. She gave the example of subdivisions that have various rules about what can be done to houses, which is something that people like – it provides a sense of predictability and stability, she said. She allowed that she did not know if the increase in property values in the Old Fourth Ward had been a function of the properties’ inclusion in a historic district or if it reflected a general rise in property values near the university. She also pointed out that one of the benefits to property owners in historic districts is the tax credits that are available – she’d taken advantage of them and had saved a lot of money, she said.

Ethel Potts told the council they’d heard a lot about the strong desire to honor the history of Ann Arbor and the excellence of architecture and workmanship by establishing a historic district. Less talked about, she said, are the financial and economic benefits of establishing a historic district. The Old West Side had started as “scruffy,” she said, and had now become “charming.”

Christine Crockett told the council that a historic district would give property owners an incentive to maintain their property, something they already had demonstrated even without a historic district. It would encourage property owners to maintain the beauty of Ann Arbor, she said. When pictures are shown of Ann Arbor, you never see pictures of the newer buildings. It’s the older buildings that are chosen for pictures depicting Ann Arbor, she said. Responding to Jane Belanger’s comments to the effect that houses in a historic district are expensive to maintain, Crockett said that maintaining any house is expensive. In a historic district, however, there are tax credits available to offset some of the expense.

John Floyd, a Republican candidate for Ward 5 city council in November, began by applauding what Alex de Parry had proposed to do with the Heritage Row project, which would preserve the seven historic houses. He’d toured the site twice, he said – once with a member of the study committee. What de Parry proposed to do with the site was, Floyd said, “fabulous” and should be acknowledged. He also said it should be acknowledged that de Parry had the right to develop something on the backside of the site.

Floyd said he also supports the establishment of a historic district. If there were not some concern about the houses being destroyed, he said, the topic of a historic district would not come up. He characterized the area where the district was proposed as part of the “charm zone” of Ann Arbor – the ring of pre-WWII houses around downtown. As part of the charm zone, Floyd said, the houses are part of the signature element of Ann Arbor’s built environment.

Leafy neighborhood blocks surrounding the downtown core, Floyd contended, give Ann Arbor a unique character that helps to partly offset the disadvantages of climate and geography in the competition to attract and retain talented people. He said he also advocates appointing a committee to explore expanding the district southward of Packard Street and over to Jefferson and perhaps even Hamilton Place.

Rita Mitchell asked the council to vote to support the district and immediately approve a study committee for an expanded district – south of Packard and eastward as well. The money spent on rehabbing houses, she said, would immediately create jobs, and the increased value of the properties would also increase the tax base.

Richard Jacobson criticized the study committee report for neglecting to include notable residents who had lived in the area south of Packard Street. Among the notables were Henry Otto, who’d led the Otto band, which had been the first band to play the UM fight song, “Hail to the Victors.” Bruno St. James had owned a dry goods shop and was a partner in Goodyear & St. James, on South Main. He’d served as an alderman from 1906-1910, Jacobson said. George Walker was the owner of Walker & Co., the most successful carriage shop in Ann Arbor, Jacobson told the council.

Anne Eisen, who lives in the proposed district, asked the council to approved the district – it would get the city about half way to the goal. How much she would continue to invest in her house, she said, depended in part on whether the city council voted to extend the protection of a historic district to the neighborhood.

Ray Detter stated that there should be no question that the houses in the proposed district were worthy of historic district designation. The committee had approached its work, he said, with honesty, hard work, and transparency. The city staff had provided assurance that there was a legal right to establish the district. As far as the boundaries were concerned, Detter said, in his experience boundaries of historic districts were always arbitrary. A historic district for the neighborhood would be consistent with the city’s master planning, he said. He rejected the policy position of the Ann Arbor-Ypsilanti Regional Chamber of Commerce to expand the downtown area to the surrounding neighborhoods.

Alex de Parry, the developer who had proposed the Heritage Row and the City Place projects, said he wanted to go on the record as not supporting the establishment of a historic district – it was being proposed for all the wrong reasons, he said. It did not meet the Secretary of Interior guidelines, he said, and the committee’s report contained many mistakes. He called it “an abuse of the historic district process.” Potential tax credits are not a rationale for creating a district, he said. Responding to a remark by Ray Detter that boundaries of historic districts are arbitrary, de Parry said he found the idea “rather strange.”

Beverly Strassmann introduced herself as president of the Germantown Neighborhood Association. She said that the residents north and south of Packard Street wanted the historic district to extend all the way to Madison Street. The boundaries that had been proposed, she said, are “arbitrary and capricious” and denied many of the residents equal protection under the law. The houses left out of the district, she contended, would be subject to even greater development pressures. Those property owners, she said, have every right to the same tax credits for historic preservation and renovation as the residents north of Packard.

Strassmann contended that the consultant who had advised the study committee had not adequately advised the committee about their obligations under the law. Strassmann quoted from the Secretary of the Interior guidelines: “When selecting boundaries for a historic district, include the area that contains the highest concentration of intact resources.” The most intact block, Strassmann said, was the 500 block of South Fifth Street between Packard and Madison. She told the council that establishing a historic district would put the city in legal jeopardy. She urged the council to table the proposal and to convene an entirely new study committee.

Graham Miles introduced himself as the owner of several properties in the 500 blocks of Fourth and Fifth avenues south of Packard. He said he’d like to see those houses included in a historic district.

Susan Whitaker thanked Carsten Hohnke (Ward 5) and Marcia Higgins (Ward 4) for sponsoring the resolution that established the historic district study committee. She noted that it had been the city council that had set the boundaries for the study area. She said that the neighborhood supported development when it was done right, citing Zaragon Place 2 as an example of high-density development done in an area suitable for that [at the southeast corner of William and Thompson]. She alluded to the support that Margie Teall (Ward 4) had shown for her own ward’s Lower Burns Park neighborhood by leading an effort to downzone part of the area to protect single-family houses.

Susan Whitaker spoke in favor of establishing a historic district.

[Teall is campaigning partly on that rezoning. From The Chronicle's coverage of a recent Ward 4 candidate forum: "Two years ago, she said, she had worked with her colleague from Ward 4, Marcia Higgins, to rezone part of Lower Burns Park to prevent more single-family residences from being broken up into multiple rental units."]

The area proposed for a historic district, Whitaker said, provides diverse housing options for people ranging from older couples, to young singles, to college students. She called it a model neighborhood for new urbanism and livability. She said the study report shows that the area is a “precious commodity.”

Patrick McCauley, who chaired the historic district study committee, said he’d prepared a long list of reasons for establishing the district and how they’d followed all the rules. Despite what some people were saying, he said, the study committee “did not kill anybody, we are not an Al-Qaeda plot.” He said he wanted to talk about why he still lived in Ann Arbor, given that he’d been “trying to get out of here for a long time.” He described himself as a housepainter, whose wife is a managing editor who works in Plymouth. They’d decided to stay in town after graduating from college, he said. Why? Because Ann Arbor is different. He said he kept checking out other places to live, but he kept coming back because it’s different – it’s not Royal Oak. Ann Arbor doesn’t believe in development at all costs, he said.

Marianne Zorza introduced herself as resident and owner of a house south of Packard Street that would be excluded from the proposed historic district. She said she wanted to tell the story of a family of historic preservationists who had saved six houses on the block. The matriarch of the family had been able to buy a house on the block. Her children and grandchildren had then been able to buy houses around that house, when there’d been a trend to tear down houses and replace them with modern apartment buildings. She said that she hoped the city council would honor the family’s early preservation efforts by taking steps to preserve the block south of Packard.

Zorza said that the report improperly draws the boundary line. She said she was not a politician and didn’t know how to make it work so that the cohesive neighborhood becomes one historic district – that’s what they’re trying to achieve, she said. She urged the council to work towards that end.

At the subsequent public hearing – on the establishment of an industrial development district for a portion of Green Road – Brad Mikus stepped again to the microphone to point out that there was not a lot of notetaking by councilmembers during the historic district public hearing. What had been the point of the public hearing? When mayor John Hieftje admonished him to address the topic of the current public hearing, Mikus said he’d made the point he wanted to make.

Historic District: City Council Deliberations

Carsten Hohnke (Ward 5) led off council discussion by saying that when he and Marcia Higgins (Ward 4) had brought forth the resolution to form a study committee, it was because there was a recognition that the area should be considered for historic preservation. The committee’s report, he said, confirmed that they were right about the formation of the study committee, which he said the majority of the council had supported.

Hohnke contended that the final report demonstrated that the resources in the precisely defined area of study unambiguously exceeded the criteria for listing in the national register – in terms of their age, integrity and significance of the resources. He said that 90% of the resources are contributing and 75% have a high level of integrity. It’s pretty clear, he said, that on the historic merits it’s reasonable to consider the area for preservation.

Hohnke said that Tony Derezinski (Ward 2) had appropriately brought forth at the previous meeting of the council – when the district had received its first reading – comments from a study committee member [Rebecca Lopez Kriss] to the effect that the study committee had considered only the historic merits of a district. It’s up to the city council to take a broader view, Hohnke said.

Hohnke allowed that there were many stories about people who might have had difficulty undertaking some modification to a structure in a historic district. However, he said that was different from the question of the establishment of a district. He noted that 90% of proposed projects in historic districts are approved by Ann Arbor’s historic district commission.

He pointed to the economic vitality that historic districts can provide to a community and to the uniqueness that they contribute to Ann Arbor.

Hohnke thanked the members of the study committee for their hard work, which they had done rigorously, fairly and openly. They’d produced a report of high quality, he said. Based on the association with the history of Ann Arbor, the association with important civic leaders, and benefit to the economic vitality of the city, he said he supported the establishment of the district. The balance between development and preservation would be well-served by the district, he concluded.

Derezinski said that the debate could be had by people of good intentions on both sides. He suggested that a simple way of looking at it is this: Do we look to the past, or do we look to the future? Are we looking forward or backwards? He called it a real moment of truth for the city involving two significant issues – the historic district and the Heritage Row development, which the council had rejected at its last meeting.

Derezinski said that while the legalities of establishing the historic district had been raised by some, he wanted to ask whether it was wise to establish a district. As he had done at the council’s first reading, Derezinski again quoted from a letter that Rebecca Lopez Kriss had written to council as a member of the historic district study committee. The committee had not been asked to analyze the economic effects, the feasibility, how it would fit into long-term planning on land use, or the impact on revenue compared to alternate uses.

Derezinski then quoted a passage from a blog posting by Lou Glazer, cofounder of Michigan Future Inc., which was written in the wake of the city council’s decision to reject the Heritage Row project [From "Why Ann Arbor Won't Be an Economic Engine"]:

But the notion that Ann Arbor is best positioned to drive Michigan’s transition to a knowledge-based economy is widely held across the state. Unfortunately Ann Arbor’s politics make it unlikely to happen. Yes, Ann Arbor is home to the University of Michigan – a world class research university – which is a terrific asset. But to leverage the asset there has to be a large pool of talent that both will attract knowledge-based enterprises and commercialize the ideas coming out of the university. That talent pool won’t concentrate in Ann Arbor as long as it’s politics are anti-growth, particularly anti-density.

The City Council just turned down another development designed primarily for young professionals. It’s a regular occurrence. Is it easier in Ann Arbor to do higher density development today than five years ago? Yes, but it still is real hard.

The result: Ann Arbor has about one third the young professional households as Madison. A chief reason, Madison offers the kind of high density, mixed use, walkable neighborhoods that Millennials are looking for, Ann Arbor doesn’t. [...] So Madison is an engine for the Wisconsin economy, Ann Arbor isn’t for Michigan.  Unless Ann Arbor becomes much more development friendly and much more responsive to the changing demands for housing and density don’t count on Ann Arbor being an engine for the Michigan economy.

Derezinski then unfurled a large city map showing those parcels that were either university-owned land or in one of the 14 already-existing historic districts in the city.

City councilmember Tony Derezinski (Ward 2) unfurls a map of Ann Arbor that shows land that's either owned by the University of Michigan or in an existing historic district.

He then read a long passage from a letter that Jan Barney Newman had written to AnnArbor.com on the city council’s rejection of Heritage Row. “I don’t understand the logic of these decisions,” Newman wrote.

Derezinski began the wrap-up of his comments by quoting Alfred, Lord Tennyson’s “Locksley Hall”:  “Let the great world spin for ever down the ringing grooves of change.” He called on his colleagues not to “calcify” their vision of the city in the past. He concluded with a pun on the “Cross of Gold” speech given by William Jennings Bryan at the 1896 Democratic National Convention in Chicago on July 8, 1896: “Do not crucify us on a cross of old.”

In his remarks, Christopher Taylor (Ward 3) rejected the idea that the decision on the historic district was a referendum on preservation versus progress. For him, he said the questions were: (i) Does the proposed district meet the National Register Bulletin 15 standards? (ii) If it meets the standards, is the district in the long-term interest of the city?

In 50 years, Taylor said, they would be “the dead hand of the past” and so the decision had better be right.

By way of background, the criteria for consideration from the National Register Bulletin 15 subsequently cited by Taylor are these:

A. That are associated with events that have made a significant contribution to the broad patterns of our history; or

B. That are associated with the lives of persons significant in our past; or

C. That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction;

Taylor said that according to the study committee’s report, collectively the resources in the district are historically significant according to criterion (A) and several meet the criteria (B) and (C) at the local level.

In his view, Taylor said, collectively meeting the criterion (A) would be a sufficient condition for establishing a historic district, while those criteria of only limited satisfaction – (B) and (C) – would not be a sufficient condition to establish a district. He then set about to evaluate criterion (A).

The study committee’s report concludes that the district meets criterion (A) because it encompasses a residential neighborhood that was established and has survived since Ann Arbor’s earliest days, Taylor said. It provides an excellent example of a neighborhood established in the latter half of the 19th century and evolved through the first half of the 20th century.

However, on reading Bulletin 15, in the section that explains criterion (A), Taylor did not feel the criterion was met. From the bulletin:

The event or trends, however, must clearly be important within the associated context: settlement, in the case of the town, or development of a maritime economy, in the case of the port city. Moreover, the property must have an important association with the event or historic trends, and it must retain historic integrity. [...] Mere association with historic events or trends is not enough, in and of itself, to qualify under Criterion A: the property’s specific association must be considered important as well.

Based on the study committee’s report, the proposed associative event is general, not specific. Survival, said Taylor, is not an important event or trend. He contrasted it with the report of the Old Fourth Ward study committee, which clearly and consistently related the Old Fourth Ward area to Ann Arbor’s founding. For the Fourth/Fifth Avenue proposed district, that kind of specific founding is absent, Taylor contended. The report itself acknowledges that the primary area of German settlement was in an area west of Main Street in what is now the Old West Side (OWS) and clearly referenced in the OWS study report.

Taylor then looked at criterion (B), which the committee report contends is met because the proposed district contains several homes of several Ann Arbor citizens who were locally important to the development of the city. Quoting from Bulletin 15 again, Taylor expressed doubt that this was sufficient to meet the criterion:

The criterion is generally restricted to those properties that illustrate (rather than commemorate) a person’s important achievements. [...] The persons associated with the property must be individually significant within a historic context. A property is not eligible if its only justification for significance is that it was owned or used by a person who is a member of an identifiable profession, class, or social or ethnic group. It must be shown that the person gained importance within his or her profession or group.

As he read the report, Taylor said, the people who lived in the houses were of standing in the community, but with the possible exception of mayors Hiram Beakes, Samuel Beakes and William Walz, they do not appear to have been important within their profession.

For criterion (C), Taylor again quoted from Bulletin 15:

A structure is eligible as a specimen of its type or period of construction if it is an important example (within its context) of building practices of a particular time in history.

As he read the report, Taylor said, there are several resources that exemplify to varying degrees a type or method of construction, but he did not believe that any of them are “important” examples.

Based on his understanding of the Bulletin 15 criteria and his reading of the report, Taylor said, he did not think the criteria were met. Even if they were met, he said, it would be necessary to establish it was in the long-term economic interest of the city. His vote against the district, Taylor said, should not be seen as a lack of concern for neighborhood cohesion or a sense of place.

Sandi Smith (Ward 1) thanked the members of the committee for their work – the detailed house-by-house cataloging of the district. She said she enjoyed reading the report. It struck her that at the time, 60-year-old houses had been torn down and moved to build the houses that now existed there. For Smith, the protest petition signed by 22 owners of the 53 properties in the district – 41% of them – was significant. She noted that a protest petition for a planned unit development (PUD) required only a 20% threshold. [That threshold had been met for the Heritage Row project, which had the effect of requiring an 8-vote super-majority for approval. Protest petitions have no formal role in the process for establishing historic districts.]

Smith indicated she was still wrestling with the issue, and was looking forward to hearing the rest of her colleagues’ comments.

Stephen Rapundalo (Ward 2) echoed the sentiments of Taylor and Derezinski. He said his interpretation was that the standards were not met collectively. Rapundalo also said he agreed with Smith’s observation that opposition to the district within the proposed area, based on the protest petition, was significant.

Addressing the contentions that some speakers had made about the state agency considering the report to be a model,  Rapundalo said he had not seen anything that addressed the substance as opposed to the form of the report. He also noted that the central area plan calls for integrative architecture and design guidelines to ensure consistency of scale and character of neighborhoods. Nowhere does it point to historic districts as the sole tool for achieving that. He concluded that he would be opposing the district.

Hohnke acknowledged that Taylor had argued forcefully in terms of the district persisting functionally in perpetuity. But he said he didn’t think that was accurate. In exactly the same way that they were now going through a process to form a district, said Hohnke, at some future point the community could elect to undergo the prescribed process to dissolve the district, if it no longer served the interests of the community.

Alluding to Derezinski’s remarks, Hohnke said “I dare not refute Tennyson, so I will refute Mr. Glazer!” He said that the idea that politics in Ann Arbor are anti-growth is simply not accurate. He noted that dozens of projects over the last 10 years have been approved – Hohnke said he would not bore his colleagues with the list, which he has ticked through on a couple of recent occasions.

Hohnke then stated that the idea that Ann Arbor is not an economic engine in the way that Madison is – as Glazer had contended – “is just bunk.”

Sabra Briere (Ward 1) said that back in 2005, before she had been elected to the city council, she’d stood at the podium asking the council for their support for a historic district. She’d spent a lot of hours working on the study committee and then waiting for the council to act. She therefore knew that a lot of work went into the process.

Briere said it’s difficult to imagine what it would take to answer the question about the economic effect of a district on future economic growth. However, she said she believes that Ann Arbor’s historic districts create an opportunity for the stabilization of neighborhoods. The establishment of the Old Fourth Ward and the Old West Side historic districts had both resulted in redevelopment, she said.

We want to keep the charm of our neighborhoods, she said, and we don’t think about how to convince people that our houses are interesting. They’re the fabric of what makes Ann Arbor Ann Arbor.

Derezinski responded to Hohnke’s contention that a historic district could be dissolved by a prescribed process by asking if any of the already-established districts in Ann Arbor had been abolished. What is the momentum in a situation like this? He pointed out that many people were already calling for the district’s expansion.

Margie Teall (Ward 4) said it was a difficult decision and that she was troubled by the large number of people who had signed the protest petition. She said she appreciated Smith’s speculation about how many houses the current mayor has lived in might be seen as historic. She noted that the Heritage Row development that had been rejected would have preserved the houses. She concluded that she would not be supporting the district.

Mayor John Hieftje said he could see how the vote was going to go and he didn’t want to make a long statement. He said that the city might want to look at the issue that Smith had raised about the contrast between a PUD protest petition that could raise the threshold to an 8-vote super-majority and the historic district protest petition, which had no particular legal standing.

Hieftje also said that he’d been talking to a lot of people lately and had concluded that there is a very clear generational divide in the city on the issue of preservation. He said he’d been taking a lot of flak for some votes he’d made in the past. A lot of people under 40 have said that they were very upset that he hadn’t voted for certain projects, he reported. To hear that they felt they weren’t being given a chance was interesting for him to hear, he said. There would be a change eventually, he said, because there would be a new generation that takes over.

Hieftje concluded by saying he agreed with Hohnke’s statements and he’d come to the meeting prepared to support the district and that’s what he intended to do.

Stephen Kunselman (Ward 3) said he would support the district not based on a heavy analysis, but rather on the fact that it was the right thing to do. All 14 historic districts lend character to the community, Kunselman said. We can listen to what other people say about our community and talk about economics, but he said that if you look outside of the inner ring of the city, there are a lot of empty apartments and houses. In his neighborhood, Kunselman said, three houses had been torn down and a fourth would soon meet the same fate.

Stephen Kunselman (Ward 3) and Sabra Briere (Ward 1).

Kunselman said that one of the issues the community continued to deal with is the policy set by the first president of the University of Michigan, Henry Tappan: Students would live in the community and the university would not build housing for them. That’s what we’re living with today, he said.

[Note: For a detailed analysis of University of Michigan student housing and its impact on the community, a good place to start is Dale Winling's 2007 master's thesis, which he discussed on his blog, Urban Oasis.]

North Quad, set to open this fall, is a step in the right direction, Kunselman said, but for the last few decades we haven’t seen construction of many new dormitories. That contributed to the conversion of near downtown neighborhoods to rental housing. He said that as a townie who’d grown up in Ann Arbor, he was dismayed by the change that has taken place in the neighborhoods closer to downtown. Without a historic district, we’d see the houses torn down, lots accumulated and “cash boxes” constructed, with the loss of the city’s neighborhood character. He said he supported a historic district and asked his colleagues to consider changing their votes.

Smith asked Kevin McDonald of the city attorney’s office if there was any mechanism for residents of a historic district to opt out. His one-word answer: No. So it’s all or nothing? she asked. McDonald’s answer: Yes!

Smith asked if historic districts precluded construction behind houses or additions. Jill Thacher, who is a city planner specializing in historic preservation, told Smith that additions were possible in a historic district, and that the historic district commission routinely approved them.

Briere then asked about the ease of adding another story. That’s not usually encouraged, said Thacher.

Outcome: The vote on the historic district was 4-6. Voting against it were: Stephen Rapundalo, Margie Teall, Sandi Smith, Tony Derezinski, Marcia Higgins, and Christopher Taylor. Voting for it were: Sabra Briere, Carsten Hohnke, John Hieftje, and Stephen Kunselman.

Reconsideration: Heritage Row

After the historic district vote, Stephen Rapundalo called his colleagues’ attention to the fact that there was an approved site plan for the City Place matter-of-right project that could still be built if there were no historic district. So he floated the idea of reconsidering the Heritage Row vote from the council’s last meeting.

Two parts of the council’s Rule 12 eventually came into play in the ensuing parliamentary maneuvers. The first part concerns who may bring a motion for reconsideration. The second part concerns how many times a question can be considered.

From the council rules [emphasis added]:

Rule 12 – Consideration of Questions When a question has been taken, it shall be in order for any member voting with the prevailing side to move a reconsideration thereof at the same or the next regular meeting; but, no question shall a second time be reconsidered.

Rapundalo had voted for the Heritage Row project, which had been defeated – he was thus not on the prevailing side, and was prohibited by Rule 12 from bringing a motion to reconsider Heritage Row. Rule 19 provides a mechanism for overriding other rules.

RULE 19 – How Rules May Be Altered Council-adopted rules may be altered or amended by a vote of the members-elect, if notice of the changes proposed to be made shall have been given the Council at a preceding regular meeting, and a written copy of the proposed changes distributed to all members of the Council.

Council-adopted rules may be suspended for the time being by a vote of two-thirds of the members present.

Rapundalo said he’d prefer not to go through the suspension of the rules, if someone from the prevailing side wanted to bring the motion. But neither Briere, nor Kunselman, nor Hohnke were so inclined.

So Rapundalo’s first step was to bring a motion to suspend Rule 12 so that he could bring a motion for reconsideration. With Mike Anglin’s absence, the 2/3 requirement translated to 7 votes required for the suspension of rules. The vote on that motion was 7-3, with Briere, Kunselman and Hohnke voting against it.

Rapundalo then brought the motion to reconsider the Heritage Row vote. That vote was 7-3 with Briere, Kunselman and Hohnke voting against it.

On the Heritage Row project itself deliberations were brief. Smith said that preserving the seven houses was a real benefit. That had been a reason for her to consider the historic district. Hohnke indicated that he was still processing the rule change. The historic district would have done a very good job of preserving the houses, so if the Heritage Row project were now approved, he would move to reconsider the historic district.

Teall said she appreciated Rapundalo’s “winging it” and understood Hohnke’s point that a historic district would provide the benefit of preserving the seven houses. But she returned to the fact that many of the property owners in the neighborhood didn’t want to be included in the historic district.

Rapundalo addressed Hohnke’s contention that a historic district was a better preservation tool by saying that in absolute terms that might be correct, but the situation was that there was a matter-of-right project with a green light for construction if the Heritage Row project were not reconsidered.

Hieftje said that based on conversation with one of the neighborhood leaders, that person didn’t think the matter-of-right City Place project would ever be built. But Hieftje said he didn’t agree with that. And for that reason the best course of action – given that the historic district had been turned down – would be to approve Heritage Row. He didn’t want to take a chance and wanted to support Heritage Row because it did preserve the houses.

Briere said that she appreciated the mayor’s comments, but noted that the council had a choice about whether  to support a historic district. She also contended that Alex de Parry and his wife had said boldly and strongly at the podium that they had no intention of building the matter-of-right development. She said that nothing had changed with respect to the Heritage Row project in the last two weeks. The only thing that had changed, she said, was that the council had chosen not to support a historic district.

Smith said that she’d seen some heads shaking over among the developer’s team in response to Briere’s remarks. She asked the de Parrys to address the council to clarify. Alex de Parry said that the language regarding the public easement for Heritage Row had been prepared – the lack of an easement for the public plaza in the actual supplemental regulations had been noted as a deficiency by Kunselman at the council’s previous meeting.

De Parry also said that they would be replacing all the street trees in need of replacement along Fifth Avenue between William and Packard on both sides of the street. He also corrected the number of bedrooms that people had talked about at the council’s previous meeting – it’s 154 bedrooms, not 163, he said.

Betsy de Parry also clarified that they had never indicated that they were not going to build the matter-of-right project, as Briere had contended. What they’d wanted to do was to rehabilitate the houses – that was their “wish and deepest desire,” she said.

Hieftje said it wasn’t just the matter-of-right project that concerned him. He said he figured, if the matter-of-right project were not built, there would be other proposals that would not result in the preservation of the houses.

Kunselman, however – who was perceived as the possible swing vote – said that if there was to be no historic district, he didn’t understand the need to preserve the homes. Moving them closer to the road as proposed would put them out of character and out of context, he said. He suggested that perhaps townhomes would be in order – 3-4 stories with garages.

Outcome: The vote on the reconsideration of Heritage Row was 7-3, with Briere, Kunselman and Hohnke voting against it. It thus failed because it did not achieve the required 8-vote super-majority.

Hohnke then attempted to bring back the historic district for reconsideration, but could not, because he had not been on the prevailing side. He’d incorrectly understood the previous suspension of Rule 12 to apply for the rest of the meeting. He thus needed to first bring a motion to suspend Rule 12. That motion failed 6-4 – it needed 2/3 of 10 present members, or 7 votes, to succeed. Teall, Higgins, Derezinski and Rapundalo voted against it.

Then Hohnke moved to suspend the part of Rule 12 that concerns how many times a question can be considered, so that the Heritage Row project could be considered for a third time total and for the second time that night. That motion succeeded, with only Kunselman and Briere voting against it.

Hieftje then called for a brief recess, and during the break, Hohnke and Briere conferred. In a telephone interview with The Chronicle the day after the meeting, Briere said she shared with Hohnke her belief that de Parry would not build the matter-of-right City Place project.

Returning from the break, Hohnke apologized to his colleagues, citing confusion about the suspension of the rules and what he contended had been conflicting advice from the city attorney. He then withdrew his motion to reconsider Heritage Row.

Pressed during a break to assess whether she considered the proceedings weird, Ethel Potts, who has witnessed several decades of Ann Arbor politics allowed, “As weird goes, this was pretty weird.”

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

Absent: Mike Anglin.

Next council meeting: Monday, July 19, 2010 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave.

Grace Singleton, a managing partner with Zingerman's Deli, talks about plans to apply to the local and state brownfield program as part of the deli's renovation plans. The business hosted a public meeting about the plans on June 21. (Photos by the writer.)

On June 21, Zingerman’s hosted a public meeting to answer questions about their plans for the brownfield application. Matt Naud, the city’s environmental coordinator, was on hand as well, and distinguished between this project and those that are typically associated with the term “brownfield.” In the case of Zingerman’s Deli, “it’s economic development,” he said, “It’s not about environmental cleanup.”

Specifically, brownfield status would allow Zingerman’s to be eligible for tax increment financing (TIF), a mechanism that would let the business recoup certain qualified expenses related to the project – possibly as much as $817,000 over 15 years.

It’s a different approach than the brownfield application most recently approved by city council for the Near North affordable housing project on North Main. In that case, the site’s need for environmental cleanup qualifies it for a brownfield status. Zingerman’s application also differs from Near North’s in that Near North isn’t seeking reimbursement through TIF. Both projects plan to apply for Michigan Business Tax credits.

Though Zingerman’s mailed out 1,014 postcards to surrounding residences and businesses to announce the meeting, only three members of the public attended, plus The Chronicle. One of those attending was Ray Detter, head of the Downtown Citizens Advisory Council. He offered at least a partial explanation for the low turnout: The city’s Historic District Commission was holding a reception at the same time for its annual preservation award recipients – lots of people were at the Hands On Museum for that event, he said. One of the winners – Quinn Evans Architects – is also the architect for the Zingerman’s expansion.

There’s perhaps an even more crucial HDC connection to the project: Assuming Zingerman’s secures site plan approval from city council, they would still need to seek a “notice to proceed” from the commission. If denied, the project can’t move forward as planned.

At a city of Ann Arbor brownfield plan review committee on Monday, the “what if” question was raised by Marcia Higgins, one of three councilmembers who serves on that committee. They were meeting to review the project’s brownfield plan and make a recommendation to council, which is expected to consider both the site plan and brownfield plan at their July 19 meeting. While affirming Zingerman’s commitment to that location, Rick Strutz, a managing partner in the deli, said that as a business decision, at the end of the day if the project doesn’t get HDC approval, they’d likely have to move.

How the Brownfield Program Works

The Michigan legislature passed the Brownfield Redevelopment Financing Act – Act 381 – in 1996. The law allows local municipalities to set up brownfield redevelopment authorities and to use various financing mechanisms to promote the cleanup and redevelopment of contaminated properties. It was later amended to include sites that are designated as “blighted” or “functionally obsolete” – Zingerman’s is seeking the “functionally obsolete” designation. The latter two categories are designed to promote economic development.

Brownfield status allows projects to get reimbursed for certain qualified expenses via tax increment financing (TIF). Redevelopment of a site increases its taxable value – the difference between its original taxable value and the new value is the “increment.” In the case of Zingerman’s Deli, the business paid $49,100 in real property taxes in 2009. A preliminary estimate by the owners is that their taxes would increase to $107,000 when the project is complete.

After tax revenues are collected, the owners of approved projects apply to get repaid out of the funds available from the “increment.” The TIF is authorized for only a certain period – after that, all tax revenue is kept by the taxing authorities.

The act also allows owners of brownfield properties to apply for Michigan Business Tax credits, which are granted by the Michigan Economic Growth Authority, or MEGA. Those credits – awarded to spur job growth and economic development – can amount to up to 20% of costs related to demolition, lead and asbestos abatement, infrastructure and other qualified expenses.

Locally, the Washtenaw County board of commissioners set up the Washtenaw County Brownfield Redevelopment Authority in 1999. Within the county, 23 municipalities have joined the authority, including the city of Ann Arbor. Because these municipalities operate under the county brownfield authority, the county board of commissioners must approve the plan before it’s submitted to the state. But first, the county requires that the local municipality sign off on the project. [.pdf file of brownfield application used for projects in the city of Ann Arbor]

The county has never rejected a brownfield plan.

As part of the process, the county charges an application fee based on the total project investment – $3,000 for projects of up to $5 million, and as much as $5,000 for projects over $10 million. The county can also take up to 10% of the total tax increment annually, for the duration of the project, for administrative expenses.

Near North, Other Ann Arbor Brownfield Plans

The Ann Arbor city council has approved one other brownfield plan so far this year – for the Near North affordable housing project on North Main. That development, just north of the downtown district, is eligible for brownfield status because of cleanup needed on the 1.19-acre site along 626-724 N. Main St., south of Summit. [.pdf file of Near North brownfield plan]

Specifically, the plan cited results from soil and groundwater samples taken in April 2009 and February 2010:

Benzo(a)pyrene, arsenic and lead were measured in soil samples at concentrations above the Part 201 Generic Residential Cleanup Criteria and Screening Levels (residential cleanup criteria) for Drinking Water Protection and/or Direct Contact.

Arsenic, barium, chromium, copper, lead, mercury, selenium, silver and zinc were measured in groundwater samples at a concentration above the residential cleanup criteria for Drinking Water and/or GSI.

Unlike Zingerman’s, Near North developers – led by the nonprofit Avalon Housing – will not seek reimbursement through TIF. But Near North does plan to apply for Michigan Business Tax brownfield redevelopment credits, which require that the brownfield status is authorized at the local level. Near North developers have identified $720,000 in eligible expenses to which the tax credits can be applied. The plan must next be approved by the Washtenaw County board of commissioners, and will likely be considered at their Aug. 4 meeting.

Beyond that, no other brownfield plans have been approved in Ann Arbor since 2008, when city council authorized three projects for brownfield status: The site of the former Michigan Inn on Jackson Road, the 601 S. Forest housing development in the South University area, and Maple Shoppes at the northeast corner of Maple and Dexter-Ann Arbor Roads, where the Aldi grocery is now located. To date, only the Maple Shoppes site has been redeveloped.

The largest brownfield plan approved by the city was for the Broadway Village at Lower Town project, which qualified for environmental cleanup. The plan, approved in 2003, requested TIF reimbursement of up to $40.4 million over a period of up to 30 years. Existing structures on the site were demolished, but otherwise the development hasn’t moved forward. On the county’s brownfield project website, its status is listed as “unknown.”

Zingerman’s Deli Expansion

Zingerman’s Deli has been working on plans for its major renovation for about four years – managing parter Rick Strutz reports that when the project team first began meeting every Tuesday morning, they didn’t think they’d still be at it 200 weeks later.

Because it’s located in the Old Fourth Ward historic district, the project needs approval from the city’s historic district commission. Business owners officially approached the HDC in 2008, asking for permission to demolish two buildings on the site – a fire-damaged house at 322 E. Kingsley St., directly behind the main deli building, and a two-story building at 420 Detroit St., known as “the orange house” or the Annex.

That request was denied, and set in motion a different approach to first seek approval for the project from the city planning commission and city council, then to return to the HDC for a “notice to proceed.” [See Chronicle coverage: "Zingerman's: Making It Right for the HDC"]

Project Timeline To Date

At the same time, the city was working through an extensive revision to its zoning ordinances, known as A2D2. Among those revisions was the rezoning of the 322 E. Kingsley parcel from residential to D2, which allows for commercial development. Here’s a timeline of the Zingerman’s project over the past two years, and related city zoning initiatives:

• June 12, 2008: Historic district commission denies request for demolition of 322 E. Kingsley St. and 420 Detroit St. [Rocco Disderide's former residence, aka "the orange house" or the Annex]
• Feb. 19, 2009: Planning commission adopts downtown plan with various revisions but no change to existing R4C zoning of 322 E. Kingsley St.
• April 6, 2009: City council gives initial approval to zoning revisions to downtown requiring alterations to the downtown plan adopted by the planning commission; major alterations include changes in South University area, but also included a rezoning of 322 E. Kingsley St. from R4C to the new D2 classification. The amendment on 322 E. Kingsley St. is introduced by Sandi Smith (Ward 1) and passes with dissent only from Sabra Briere (Ward 1). [link]
• May 19, 2009: Planning commission approves revisions to the downtown plan to accommodate part of the city council’s South University zoning revisions, an East Huron zoning revision, and the 322 E. Kingsley St. revision. [link]
• June 15, 2009: City council adopts downtown plan as revised by the planning commission. [link]
• Nov. 16, 2009: City council gives final approval to downtown zoning revisions, including the D2 designation to 322 E. Kingsley St.
• Jan. 14, 2010: At an HDC work session, Zingerman’s presents plan showing demolition of two houses.
• March 8, 2010: Zingerman’s holds a public participation open house on its proposed expansion.
• March 11, 2010: At an HDC work session, Zingerman’s presents a plan showing demolition of one house only. [link]
• May 18, 2010: Zingerman’s gets unanimous approval for its site plan from the Ann Arbor planning commission. The plan includes renovation of the Annex and demolition of 322 E. Kingsley. [link]
• June 21, 2010: Zingerman’s holds public meeting regarding brownfield application.
• June 28, 2010: Zingerman’s meets with the city’s brownfield plan review committee, which recommends approval. Both the site plan and brownfield plan are expected to be on the council’s July 19, 2010 meeting.

The site plan now calls for tearing down the house at 322 E. Kingsley and building a two-story, 10,340-square-foot addition that would be connected to the 5,107-square-foot deli building via a glass atrium. They’ll add underground tanks for stormwater detention and several environmentally-friendly design elements, including a green roof on the deli’s existing one-story wing. Phoenix Contractors of Ypsilanti is the project’s construction manager and general contractor.

All along, Zingerman’s executives have cited concerns over the project’s expense, particularly the cost of renovating the Annex. The overall project is expected to cost about $6.7 million. Roughly $500,000 is associated with renovating the house, which is relatively small – less than 900 square feet. Renovation will entail moving the Annex off its existing foundation, replacing the foundation, renovating the house, then moving it onto the new foundation and incorporating the structure into the new deli addition.

That expense was one motivation for seeking brownfield status.

Brownfield Plan Review Committee Weighs In

Because Ann Arbor has been identified by the state as a “core community,” the brownfield designation can be applied more broadly – not just for environmental cleanup, but for economic development as well, to reimburse expenses such as public infrastructure improvements and stormwater management. That’s the path that Zingerman’s is pursuing.

They’re making their case based on their track record as well as plans for future growth. Since 1982, the business has grown from four employees to around 200. Because of added capacity from the expansion, they plan to add another 40 deli employees over the next five years, and a total of 65 employees throughout all of Zingerman’s operations, which include their mail order business, bakery and creamery, among others.

One of the first steps in the brownfield process was to ask the city assessor to designate the property at 322 E. Kingsley as “functionally obsolete.” Because that property is part of the entire parcel to be redeveloped, the whole site qualifies for a brownfield under that designation. The city’s assessor, David Petrak, is expected to submit a letter to that effect this week, after it’s vetted by the city attorney’s office.

The process also includes hosting a public meeting – that happened on June 21, at the second floor of Zingerman’s Next Door, which is adjacent to the deli. Three members of the public attended.

Zingerman's Deli managing partner Rick Strutz, left, and attorney Gary Bruder, the owner's representative on the deli's expansion project, at the June 28 meeting of the city's brownfield plan review committee, held at city hall.

The turnout was much higher at the June 28 meeting of the brownfield plan review committee, which is charged with making a recommendation to city council. The committee consists of three city councilmembers – Sandi Smith (Ward 1), Stephen Kunselman (Ward 3) and Marcia Higgins (Ward 4). All of them attended Monday’s meeting, as did several city staff: Matt Naud, environmental coordinator; Tom Crawford, chief financial officer; and Matt Horning, city treasurer. Also at the meeting were Susan Polllay, executive director of the Ann Arbor Downtown Development Authority; and Brett Lenart, a Washtenaw County staff member who handles brownfield issues. Three members of the Zingerman’s team were there as well: Rick Strutz, managing partner of the deli; Gary Bruder, an attorney and owner’s representative; and Jared Belka, a paralegal with Warner Norcross & Judd, a Lansing-based law firm that’s helping with the brownfield plan.

In describing the project, Strutz told the group that their No. 1 priority is to preserve the historic brick structure that houses the deli. “We are beating the crud out of this building,” he said. The addition will allow them to move all cooking out of the old building, to eliminate the moisture and humidity that’s generated in the kitchen.

Bruder and Strutz highlighted several other aspects of the project: meeting ADA standards of accessibility; adding bathrooms and a staff breakroom; building a storage area which will allow them to take fewer deliveries, with an aim of reducing traffic congestion; sharing an area for trash and composting with neighboring Community High School, and working with students on an instructional composting project.

Strutz said the project’s general contractor, Phoenix Contractors of Ypsilanti, calls it a “surgical construction process” because of the tight site within a neighborhood setting, and the need to keep the deli open throughout construction. In response to a query, Bruder noted that it’s not a planned unit development (PUD), which prompted Higgins to say, “Thank god!”

But much of the meeting’s discussion centered on issues related to the historic district.

Challenges of the Historic District

Bruder reiterated that because the Historic District Commission had determined that 322 E. Kingsley and the Annex were “contributing” structures and could not be demolished, the only alternative for Zingerman’s was to request what’s called a “notice to proceed” from the HDC.

The criteria for issuance of such a notice, from the city code, are as follows:

8:416. Notice to proceed.
(1) Work within a historic district shall be permitted through the issuance of a notice to proceed by the commission if any of the following conditions prevail and if the proposed work can be demonstrated by a finding of the commission to be necessary to substantially improve or correct any of the following conditions:
(a) The resource constitutes a hazard to the safety of the public or to the structure’s occupants.
(b) The resource is a deterrent to a major improvement program that will be of substantial benefit to the community and the applicant proposing the work has obtained all necessary planning and zoning approvals, financing, and environmental clearances.
(c) Retaining the resource will cause undue financial hardship to the owner when a governmental action, an act of God, or other events beyond the owner’s control created the hardship, and all feasible alternatives to eliminate the financial hardship, which may include offering the resource for sale at its fair market value or moving the resource to a vacant site within the historic district, have been attempted and exhausted by the owner.
(d) Retaining the resource is not in the interest of the majority of the community.

Before Zingerman’s can make a request for the “notice to proceed,” their site plan must be approved by city council and their financing must be in place, among other things. Bruder said they’d held four working sessions with the HDC – the project as it stands is one that Zingerman’s is comfortable with, he said, and one that they think the HDC will be able to support.

At the June 21 public meeting, Detter had said he couldn’t imagine anyone on the HDC who’d be against the project – only an “extreme historic preservationist” wouldn’t want it to proceed, he said. He also said the Downtown Citizens Advisory Council – which he chairs – supports the project, and he felt it undoubtedly had the enthusiastic support of the entire community. But members of the Zingerman’s team indicated that they didn’t take approval for granted.

During Monday’s meeting of the brownfield plan review committee, Sandi Smith clarified that it was possible for the HDC to turn them down. “We really hope they don’t,” Bruder said, “But they could.”

Bruder pointed out that Zingerman’s is taking a big risk – if the HDC denies their request, their investment of time and money in the project so far will be for nothing.

Smith asked how much additional cost was added to the project due to preserving the Annex. About $500,000, Bruder said – or $550 per square foot. That doesn’t include all of the fees and expenses spent up until this point, he noted, related to working with the HDC and revising the site plan based on the rejection of Zingerman’s original plan, which included tearing down the Annex.

Smith asked whether it was fair to say that they were seeking tax credits because of those additional costs. Bruder responded by saying that the Zingerman’s team had recently met with the DDA’s operations committee, which had asked the question more bluntly: Will the project proceed if Zingerman’s doesn’t get the assistance it’s seeking? The project will go forward, Bruder said, but not necessarily as it’s now envisioned. Contrary to urban legend, he added, Zingerman’s does have finite resources. And if they get TIF reimbursement and state tax credits, it would allow them to do other things to enrich the project.

Strutz noted that at one point they’d talked about putting in a geothermal system, but when they found out they’d have to “put lipstick on the pig” – referring to the renovation of the Annex – that removed some options in other areas, he said.

Smith suggested that keeping the Annex was actually costing taxpayers. Kunselman then asked whether Zingerman’s planned to apply for historic preservation tax credits. They’re pursuing it, Bruder said, but they might not qualify. He noted that because they’re committed to that site, they realize that it adds to their costs.

Kunselman said he recalled the time before Zingerman’s was founded – he went to Community High School, and remembers the site before it became the well-known deli. The historic district helps give Zingerman’s its ambiance, he noted, saying he didn’t want the discussion to become one about how costly a historic district is.

Strutz said that after their staff, the most important thing to the business is its look and feel. They’ve spent a lot of time making sure the Annex won’t look out of place in the new campus, he said, but it’s been challenging.

Higgins asked what would happen to the business if the project weren’t approved. Bruder said they’ve never wanted to come to the city and threaten to move if they weren’t approved – Higgins assured him that she wasn’t getting that impression.

Strutz reported that at one of the working sessions, they’d been told by a member of the HDC that the greenest building was one that was already built, and that Zingerman’s should move to another location if it wanted to expand – the vacant commercial space at Liberty Lofts was suggested, he said.

The Chronicle has attended two working sessions between Zingerman’s and the HDC, and reported the exchange that Strutz referenced. From coverage of the Jan. 14, 2010 meeting:

Commissioners discussed how far the notion of “necessity” in the criteria for a notice to proceed extended – was it “necessary” that Zingerman’s undertake the expansion at that location?

Commissioner Ellen Ramsburgh wondered if the expansion was more than the site could take. She noted that the Zingerman’s Creamery and Bake House had moved to peripheral locations. “Do you need to be there?”

In her remarks, Ramsburgh was echoing sentiments expressed by then-commissioner Michael Bruner back in June 2008, when he had made the suggestion that Zingerman’s think of moving their operations. The specific location he had in mind was the Old West Side structure adjoining the Liberty Lofts development:

“Commissioner Bruner – [...] This may be less than what they need, but there stands today, a project that we reviewed and was approved, a development that includes a 20,000 square foot commercial retail area with parking that is begging to be occupied. [An apparent allusion to the Liberty Lofts greenhouse building.] As preservationists that want to encourage the success of economic projects in the city, perhaps Zingerman’s should consider moving their location as they have with their Creamery, which is at a satellite location, their Bakery which is at a satellite location, their Roadhouse that is a satellite location – this could be relocated as a satellite component at another location, nevertheless retaining this location as it is.”

Ken Clein [a Quinn Evans architect who's handling the Zingerman's project] responded to Ramsburgh at the January 2010 HDC working session by wondering if there were another historic district in another town where Zingerman’s could contemplate locating their operations. Ramsburgh: “That’s a threat!”

On Monday, Strutz said that at the end of the day, as a business decision they probably would have to move if the project isn’t approved. They’re losing business because they lack capacity now – you can see it when people are waiting in lines that wrap around the block, he said. Bruder added that there’s a breaking point, but they haven’t hit it yet.

Kunselman wondered if rejection of the plan would lead to a Glen Ann scenario. [He was referring to Glen Ann Place, a project that won approval from the planning commission and city council but was denied by the HDC. The situation ended in a lawsuit, settled in the summer of 2007 in a way that allowed the project to move ahead. But so far, nothing has yet been built on that vacant lot just north of Ann Street on the west side of Glen Avenue, where two houses previously stood.]

Strutz replied that he didn’t think they had the time to deal with it in that way.

Other Issues: Pro Forma Analysis

Matt Horning, the city’s treasurer, said that in the past they’ve looked at a project’s pro forma income statements with and without the brownfield TIF capture, and he wondered whether councilmembers wanted that kind of anaylsis on this project. Higgins suggested making it part of the committee’s recommendation to council.

With that, the committee voted unanimously to recommend approval of the brownfield plan, pending the pro forma analysis. “It’s moving forward!” Higgins said.

What’s Next?

One pending issue is related to the Ann Arbor Downtown Development Authority. The property straddles the boundary of the DDA, which also gets its funding, in part, from a TIF. The DDA is first in line to get new TIF revenues, which would amount to about $407,000 from that site over a 15-year period.

Rather than asking the DDA to forgo those revenues, Zingerman’s is asking that it identify other things of equivalent value to contribute to the project. They discussed possibilities with the DDA’s operations committee at a meeting last week.

Following Monday’s brownfield committee meeting, DDA executive director Susan Pollay told The Chronicle that the project is attractive to the DDA for several reasons, including the number of new jobs it will create and the amount of tourism dollars it attracts to the downtown, as a destination for visitors. The business has become an iconic identifier for the city, she said – and building a unique identity is one of the DDA’s strategies for creating a vibrant downtown.

On Tuesday, Strutz sent a letter to Pollay outlining some specific requests for the DDA board to consider. They include:

• $100,000 to reimburse Zingerman’s for costs associated with LEED certification.
• $160,000 for costs associated with on-site water detention.
• $50,000 to install ADA-compliant curb ramps at the Detroit and Kingsley intersection.
• $45,000 for sidewalk removal and replacement.
• $10,000 for wayfinding signs pointing to the deli, plus a roof sign on the addition that can be picked up by Google maps.
• Several other items with a cost to-be-determined, including parking spaces for contractors and a staging area, plus replacement or repair of brick pavers, curbs and water/sewer lines on Detroit Street between Kingsley and Catherine.

The letter states that support from the DDA would significantly improve their changes to receive Michigan Business Tax credits. Pollay expects the DDA board will consider and vote on a resolution of support for the Zingerman’s project at their July 7 board meeting.

City council is expected to consider the site plan and brownfield plan at their July 19 meeting. The county board of commissioners will likely vote on the brownfield plan at their Aug. 4 meeting – if approved, the brownfield plan would then be forwarded to the state.

Bruder said they hope to have the project considered by the historic district commission in September.

Assuming all approvals are in place, site work would begin in the late fall of 2010, with work on the addition starting in February of 2011. The goal is to complete the project by March of 2012, in time for the deli’s 30th anniversary celebration. They plan to keep the deli open during construction.

More information about the Zingerman’s project is available on a section of the deli’s website.

The state’s constitution also came up in a recent letter conveyed to the city of Ann Arbor by an attorney for Alex de Parry, the developer of a proposed project called Heritage Row along Fifth Avenue south of William Street. The project was voted down at the Ann Arbor city council’s June 21 meeting on a 7-4 vote in favor, thus failing to meet the eight-vote majority required. [Chronicle coverage of that meeting is forthcoming.]

The main focus of the letter, sent to the city by de Parry’s legal counsel the same day as the council met to vote on Heritage Row, is not that project per se, but rather the historic district that the council may decide to establish at its next meeting on July 6. The recommended historic district, which includes the parcels that were to be used to build Heritage Row, received its initial consideration by the council at their June 21 meeting.

While its more customary for councilmembers to vote for a proposal at its first reading, even if they’re against it, three councilmembers at the June 21 meeting chose to oppose the establishment of the district already at its first reading. Tony Derezinski (Ward 2), Stephen Rapundalo (Ward 2) and Marcia Higgins (Ward 2 Ward 4) all voted against the historic district.

None of the three cited the specific issues raised in the letter from de Parry’s legal counsel as reasons for voting against the district – Derezinski had voted at the council’s Aug. 6, 2009 meeting against establishing a committee to study the question. And Rapundalo had supported a postponement of that vote.

But for the final vote on July 6, the points raised in the letter from de Parry’s legal counsel may well factor explicitly into the council’s deliberations. The legal reasoning in the letter leads to the conclusion that the way local historic districts are set up in Michigan potentially violates the state’s constitution. And if the reasoning in the letter stands legal scrutiny, it could change the way any future historic districts in the state of Michigan are established.

The Letter’s Main Points

The letter, written by Peter Webster, an attorney with Dickinson Wright PLLC, includes four basic points concerning the proposed historic district. The first two are general in nature, and relate to any historic district. The second two concern specific issues related to the proposed district in Ann Arbor along Fourth and Fifth avenues south of William Street.

1. Establishment of a historic district results in an unconstitutional “taking.”
2. The city council does not have the authority to adopt a historic district because a majority of the property owners within the proposed historic district have not signed a written petition in support of the district.
3. The study report submitted by the study committee does not justify the establishment of a historic district.
4. The study committee had a member with a conflict of interest.

We consider the letter’s points in reverse order.

Letter: Contention of Conflict of Interest

On Dec. 15, 2008, the city council considered but rejected establishing a committee to study an area south of William Street, continuing south of Packard Street to Madison Street to determine whether it would be appropriate to establish a historic district there.  Then at its Aug. 6, 2009 meeting, the council established a study committee for a smaller area along Fourth and Fifth avenues south of William Street and north of Packard Street. [Previous Chronicle coverage: "S. Fifth Avenue: Historic District, Development"]

The establishment of the study committee came when a “matter of right” version of a previously rejected development by Alex de Parry, called City Place, was moving through the city’s approval process. On the night of Aug. 6, 2009, the deliberations by councilmembers included references to the establishment of the study committee – and an associated moratorium on construction in the area – as a “tool in the tool box” and an option in the city council’s “arsenal.”

The council subsequently appointed members to the study committee: Ina Hanel-Gerdenich, Susan Wineberg, Sarah Shotwell Wallace, Patrick McCauley, Rebecca Lopez Kriss, Tom Whitaker and Kristi Gilbert.

Webster’s letter contends that Tom Whitaker’s membership on the historic district study committee posed a possible conflict of interest. From the letter [Fifth Avenue Limited Partnership is de Parry's development company]:

Mr. Whitaker wanted to buy the property owned by Fifth Avenue Limited Partnership for a cheap price. To that end, he created a limited liability company called Limited Resources, LLC on January 16, 2009. On January 17, 2009, he entered into a confidentiality and non-disclosure agreement with Fifth Avenue Limited Partnership, and on January 30, 2009 provided a non-binding letter of intent as to basic terms for the purchase of the property under land contract.

Mr. Whitaker established a deadline for Fifth Avenue Limited Partnership to accept his offers after which he communicated that he would withdraw his offers and put his focus fully on the efforts of the Germantown Neighborhood Association which is to prevent the development of the property. After Fifth Avenue Limited Partnership rejected Mr. Whitaker’s offers and submitted redevelopment plans, Mr. Whitaker continued his efforts to advocate a moratorium against any redevelopment of the site, the establishment of a historic district, and sought to be appointed to the Historic District Study Committee which would have the practical effect of destroying Mr. DeParry’s redevelopment plans and reduce its market value. Perhaps it was, and still remains, Mr. Whitaker’s desire to buy the property at a depressed value after the establishment of a historic district.

In a telephone interview with The Chronicle, Whitaker declined to discuss details, citing the confidentiality and non-disclosure agreement he’d signed. He did confirm the formation of Limited Resources, LLC, but noted that the entity was not formed solely to explore the possible purchase of properties owned by de Parry. For example, Whitaker had used Limited Resources to purchase the house next door to his own house, he said.

Whitaker also characterized the negotiations as cordial, but said they did not ultimately converge to agreement with respect to a mechanism for the financial transaction or the dollar amounts involved. Responding to the characterization in the letter of his desire to purchase the properties at “a cheap price,” Whitaker said his was not a “low-ball” offer. Whitaker also noted his personal belief was that historic districts stabilize or increase the value of property, as opposed to lowering its value – which, Whitaker said, would be counter to the goal that Webster’s letter contends Whitaker had.

Letter: Justification in the Study Committee Report

Webster’s June 21 letter also contends that the study committee’s final report does not justify the establishment of the district. Without a great deal of elaboration about the specifics that are included in the report, the June 21 letter ticks through various requirements, concluding for each that they are not met.

• The preliminary report must address at a minimum the historic district or districts studied [MCL 399.203(1)(d)].
• The study committee must inventory all resources in the proposed district and express the percentage of historic to non-historic as required by the Local Historic Districts Act [MCL 399.201 - 399.215].
• The study committee was required to [d]etermine the total number of historic and nonhistoric resources within a proposed historic district and the percentage of historic resources of that total [MCL 399.203(1)(c)].

A previous letter sent by Webster on May 5, 2010 lays out in more detail some of the issues surrounding the identification and enumeration of all the resources in the district.  For example, the preliminary report created by the committee included the following description of previous studies of the area:

Portions of the district were surveyed as part of larger surveys by the city of Ann Arbor in 1973, 1975, 1976, 1978, 1982, 1988 and 1990. Copies of the survey forms and photographs are located at the City of Ann Arbor in the offices of the Community Services Area, Planning and Development Services Unit.

The May 5 letter from Webster criticizes that section of the preliminary report as follows:

The Report acknowledges that portions of the study area were part of other “surveys” in the following years 1973, 1975, 1976, 1978, 1982, 1988, and in 1990. In fact, the entire City of Ann Arbor had been exhaustively studied over the years to determine historic resources and proposed historic districts. Beyond the literal one sentence about these prior studies, nothing was addressed, and consequently, the Report fails to meet the legal requirements in this regard.

And in the final report approved by the committee, the section on previous surveys is expanded, essentially to explain why those previous surveys did not factor more prominently in the report [new material in italics]:

Portions of the proposed district were surveyed as part of larger formal and informal “windshield” surveys by the city of Ann Arbor in 1973, 1975, 1976, 1978, 1982, 1988 and 1990. These surveys consist only of a photo inventory and covered many different areas of the city. The inventories do not have associated survey reports and do not make evaluations or conclusions about potential historic properties or districts. The surveys do not contain any historic research and were of little value to the Committee’s work. Copies of all the survey data are located at the City of Ann Arbor in the offices of the Community Services Area, Planning and Development Services Unit.

In another example, the preliminary study committee report describes fencing in the recommended district:

Seven properties have mature (possibly lilac) bushes in the front and/or side or rear yards. The historic fencing in the district consists of a wrought iron fence shared by two properties and one example of a wood frame fence with a middle section of metal chicken wire. The latter is unique in that it includes one section topped with old wrought iron cresting. Both fences have associated gates.

Webster’s May 5 letter critiques that section, which was not modified in the final report, as follows:

… the Report must define essential features that must be present for the property to be considered historic. There is no explanation of why claimed features are historic. For example, there is no explanation of why a chicken wire fence is significant to German immigrants. Was chicken wire (apparently a historic feature), a symbol or especially important to such residents? Or was it run of the mill that is just old.

The central point from Webster’s June 21 letter about the justification of the district is a critique of three themes identified in the report as helping to justify the establishment of the district:

The Fourth and Fifth Avenue district is located at the intersection of three key elements of Ann Arbor’s settlement history: early settlement, German ethnic settlement, and settlement associated with the University of Michigan.

In the June 21 letter, Webster writes:

Recognition of historic significance does not justify the concocted “period of significance” and use of three different and separate “themes” to justify inclusion of virtually every single building in the area as being historic. Under this rationale, which knows no bounds, the City of Ann Arbor could claim the “theme” is the “history of development in Ann Arbor” with a “period of significance” from its inception to present and claim the entire City as a historic district.

Webster’s May 5 letter also contends that there is no principled basis for the proposed boundary of the district. That is a point of possible agreement among residents living south of Packard along Fourth and Fifth avenues, and whose property is not recommended for inclusion in the district.

At the city council’s June 21 meeting, several residents addressed the council, objecting to  the recommended southern boundary at Packard Street, arguing that the proposed district should extend southward to Madison. An argument for a larger district is based partly on residents’ contention that the block of Fifth Avenue south of Packard is actually the center of the historic resources in the area – it’s the only completely intact streetscape in the neighborhood. It’s also based on the historical significance of specific people who lived in the houses.

Letter: Is a Supporting Petition Required?

While two of the four points raised in Webster’s June 21 letter are specific to the establishment of a historic district on Fourth and Fifth avenues, the other two also bear in a general way on the interpretation of Michigan statutes.

One of those points is a single sentence of the Local Historic Districts Act concerning time frames and petitions [MCL 399.203(3)(b)]:

A local unit shall not pass an ordinance establishing a contiguous historic district less than 60 days after a majority of the property owners within the proposed historic district, as listed on the tax rolls of the local unit, have approved the establishment of the historic district pursuant to a written petition.

Webster’s letter contends that this sentence requires a petition to be signed by a majority of the property owners within a proposed district in order for a local government to establish an historic district. That’s counter to a state attorney general opinion on the question, which Webster acknowledges in his letter, but argues against, citing the legislative intent of the language.

The attorney general’s opinion from 1997, written by then-attorney general Frank Kelley, gives deference to the interpretation provided by  The Michigan Historical Center, which is the state agency charged with administering the Local Historic Districts Act. The attorney general’s opinion cites the center’s interpretation as summarized in Michigan Historic Preservation Network’s publication, “A Guide to Michigan’s Local Historic Districts Act”:

The last sentence of 3(3), included in P.A. 96 by amendment, must be carefully read. It provides that if a petition of support, signed by more than 50% of the property owners in a proposed contiguous historic district, is presented to the local legislative body, then the local legislative body must wait sixty days before adopting an ordinance of designation for that district. Note that no petition is required; note also that the section does not address the issue of petitions in opposition, which do not trigger the waiting period. If a support petition is presented, the sixty day wait must be observed. After that time, the local legislative body is free to adopt, reject, or otherwise handle the proposed ordinance as if there had been no petition.

Webster’s letter, on the other hand, contends that the legislative intent of the language was to protect property rights, and was intended to preclude the enactment of an ordinance until 60 days after a majority petition has approved of the establishment of the historic district.

Webster’s letter also alludes to the petition requirement arising from a “plain reading” of the statute. The Chronicle sought to compare the language in the Local Historic Districts Act to grammatically similar language in other contexts, and identified the following parallel construction in a regulation on human resources policies in Latvia:

The dismissal process cannot be commenced less than 60 days after the employer has submitted a formal notification to the State Employment Service and the appropriate municipality.

Here, on a plain reading interpretation, it seems apparent enough that a dismissal process requires the submission of a formal notification to the State Employment Service.

Not discussed in Webster’s letter, but also relevant to the interpretation of the Local Historic Districts Act, is a basic tenet of statutory interpretation that a legislative body did not intend an absurd result with its legislative language.

The result of the attorney general’s opinion is that someone who is interested in supporting the establishment of an historic district – and who demonstrates that support by circulating a petition that succeeds in garnering a majority of resident signatures – succeeds in only in delaying the establishment of the district upon submission of that supporting petition. A reasonable contention, then, is that this is an absurd result, and therefore could not have been the intent of the legislators.

The point of Webster’s letter with respect to the historic district currently being weighed by the Ann Arbor city council is that no supporting petition has been submitted.

At least some councilmembers might apply the requirement of majority support before voting for the district – independently of whether that support is shown through a written petition. For example, in a 2006 interview with Stephen Kunselman (Ward 3), he stated:

My very first comment regarding historic districts is I don’t think that it’s the government’s role to impose something of that nature, unless the majority of the people in the neighborhood want it.

Letter: The Constitutional Argument

Of the four points made in Webster’s letter, the one with potential for broadest impact is the contention that Michigan’s statutes have a combined effect that a formation of a local historic district results in an unconstitutional de facto taking of property.

Regulatory Taking

It’s worth first considering a different kind of infringement of property rights, which Webster does not focus on in his letter – but also explicitly reserves the right to claim. From Webster’s letter [emphasis added]:

Without waiving or discussing traditional arguments that the City’s exercise of the police power to establish a historic district is an unconstitutional regulatory taking, I wanted to identify that under Michigan statutes, the establishment of a historic district is not merely a regulatory taking, but a de facto taking and a conveyance of a real property interest without due process or just compensation and violates the Michigan Constitution.

While Webster’s letter does not discuss regulatory taking, it’s still worth understanding what it is, in order to understand how it contrasts with a de facto taking.

It’s generally accepted that certain regulations on how land is used contribute to the public good, even though those regulations impinge to some extent on the rights of property owners to use that property in any way they see fit. Zoning is an example of a broad category of land use regulation that is generally accepted to contribute to the public good. For example, it prevents people from setting up iron ore mining and smelting operations in their residentially zoned Ann Arbor backyards.

While it might not be possible to reap whatever economic benefit might come from trying to mine and smelt iron ore in a typical Ann Arbor backyard, it’s still possible to use a residentially zoned parcel for something reasonable – living there.

It’s possible to conceive of a hypothetical situation, though, where zoning regulations might result in a situation where it’s not possible to use a piece of land for anything reasonable. By way of a simplistic example, suppose a 100-foot square parcel is subject to zoning that requires a 40-foot setback on every side, which results in a buildable area of 400 square feet in the center of the parcel.

Suppose further the zoning regulations are imposed that require a minimum 500 square foot building footprint. In that situation, the zoning regulations interact to result in an unbuildable lot. The owner of such a lot might reasonably claim that this amounts to an unfair regulatory taking and argue that the imposition of such zoning requires just compensation.

Requirements of historic districts regulate what property owners within a district can do with their property. So it’s conceivable that this regulation might be seen as an unfair burden on property owners and that a situation might arise where a property owner contends that the regulations of a historic district amount to a regulatory taking.

However, in the 1978 case Penn Central Transportation Co. v. New York City, the U.S. Supreme Court ruled against Penn Central’s contention that the city’s Landmarks Law, which prevented Penn Central from constructing a multi-story office building above Grand Central Station, was a regulatory taking. The court thus denied Penn Central’s claim that it was entitled to just compensation, saying that Penn Central was still able to use the property in essentially the same manner it had up to that point.

While not waiving a possible claim for regulatory taking, Webster’s letter focuses on a different kind of taking: de facto.

De Facto Taking, Easements

The de facto taking of a property involves a governmental action that appropriates private property for public use. When the government exercises its power of eminent domain to transfer private property to public ownership, for example, then it must provide just compensation to the owner of the property. In Michigan, eminent domain is covered in the Uniform Condemnation Procedures Act.

Webster’s argument is that the enactment of a local historic district involves the transfer of private property to public ownership – not all of it, but just part. The idea that rights to parts of real estate can be assigned to various parties is consistent with the commonly-used analogy of a bundle of sticks to characterize property rights. Any one stick can be separated from the bundle and treated separately.

One familiar way that a single stick can be separated out from the bundle is through an easement. For example, if one parcel is located behind another, the owner of the front property might sell an easement to the owner of the rear property so that the rear property can be easily accessed by its owner.

Easements are not just about access to property. They include the notion of restricting use of property. For example, in The Chronicle’s coverage of the city’s greenbelt advisory commission (GAC), one of the frequently encountered concepts is that of a “conservation easement.” A conservation easement on a property can require, for example, that the property not be developed. Easements are sticks in the bundle of property rights associated with land – sticks that can be bought and sold.

So why does Webster think that a local historic district amounts to an easement on the properties within a district? It’s not a matter of interpretation, but rather what Webster calls in his letter “the operation of law.”

Local Historic Districts as Easements

When a local historic district is enacted, the operation of law applying to the district includes the language of the Natural Resources and Environmental Protection Act [emphasis added]:

“Historic preservation easement” means an interest in land that provides a limitation on the use of a structure or site that is listed as a national historic landmark under chapter 593, 49 Stat. 593, 16 U.S.C. 461 to 467, [...] or is recognized under a locally established historic district created pursuant to the local historic districts act, Act No. 169 of the Public Acts of 1970, being sections 399.201 to 399.215 of the Michigan Compiled Laws,

And the effect of a local historic district that creates an easement is, as Webster’s letter points out, reflected in the Michigan Historical Commission Act 271 of 1913. The act requires that the local government record the historic district ordinance with the Register of Deeds – the office that maintains records of easements on properties.

Webster continues, pointing out that the Natural Resources and Environmental Protection Act also states [emphasis added]:

A historic preservation easement is an interest in real estate, and a document creating 1 of those easements shall be considered a conveyance of real estate and shall be recorded in accord with Act No. 103 of the Public Acts of 1937, being sections 565.201 to 565.203 of the Michigan Compiled Laws, in relation to the execution and recording of instruments.

In his letter, Webster then points that “Michigan statutes require such interests in land be acquired in the same manner as a governmental unit acquires an interest in land (i.e. conveyance or condemnation under the Uniform Condemnation Procedures Act (UCPA) MCL 213.51 et seq.).”

Webster concludes that the enactment of a local historic district in Michigan requires a local government to purchase the easement through voluntary agreement of the property owner, or else to provide the due process of condemnation stipulated in the UCPA.

Failure to purchase the easement through voluntary agreement or through condemnation would, Webster writes, amount to a violation of Michigan’s constitution.  The constitution of the state of Michigan reads in relevant part:

ARTICLE X PROPERTY

§ 2 Eminent domain; compensation.

Sec. 2. Private property shall not be taken for public use without just compensation therefore being first made or secured in a manner prescribed by law. If private property consisting of an individual’s principal residence is taken for public use, the amount of compensation made and determined for that taking shall be not less than 125% of that property’s fair market value, in addition to any other reimbursement allowed by law. Compensation shall be determined in proceedings in a court of record.

“Public use” does not include the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenues. Private property otherwise may be taken for reasons of public use as that term is understood on the effective date of the amendment to this constitution that added this paragraph.

Implications for Historic Districts: Generally, Specifically

There is nothing peculiar to the recommended Ann Arbor Fourth/Fifth Avenue historic district in this constitutional argument. If the argument were to be used successfully to contest the establishment of that historic district, it would mean that any local historic district enacted under Michigan’s statutes would need to provide for compensation to property owners in the district.

If the city council does not establish the historic district at its July 6 meeting or some subsequent meeting before the construction moratorium ends on Aug. 6, then there are various possibilities for the future of South Fifth Street.

One possibility is that the “matter of right” City Place project could be built, which would demolish the seven houses. Another possibility is that a councilmember who voted against the Heritage Row project on June 21 could bring a motion to reconsider it at the council’s July 6 meeting and the Heritage Row project could be approved. Those voting against Heritage Row were Sabra Briere (Ward 1), Stephen Kunselman (Ward 3), Carsten Hohnke (Ward 5) and Mike Anglin (Ward 5).

Left in the frame, scanning through the protest petition documents, is Scott Munzel, legal counsel for Alex de Parry, developer of the Heritage Row project. De Parry is seated in the row behind with his arms resting on the bench back. In the foreground is Bradley Moore, architect for Heritage Row. (Photos by the writer.)

Councilmembers were also informed that a protest petition had been filed on Heritage Row Monday afternoon, which – once validated – would bump the requirement for approval from a simple six-vote majority to eight out of 11 council votes. Petition filers have calculated that they’ve collected signatures from 51% of adjoining property owners, weighted by land area. That exceeds the 20% required for a successful petition, but as of late Wednesday, the city had not completed its verification process for the signatures. [Update: Early Thursday afternoon, the city confirmed the 20% threshold had been met.]

In other business, the council approved increases in water and sewer rates and gave initial approval to changes in the city code language on the placement of recycling carts.

A wording change in the list of permissible uses for public land was also given initial approval, but not without discussion. Thematically related to land use was a presentation during the meeting’s concluding public commentary in response to a request for proposals (RFP) for the privatization of the city-owned Huron Hills golf course.

Also receiving discussion was an item pulled out of the consent agenda that authorized $75,000 for Ann Arbor SPARK, for economic development.

Criticism during public commentary on the appointment and nomination process used by the mayor to fill seats on boards and commissions stirred mayor John Hieftje to defend shielding individual members of those bodies from public demands.

Public commentary also elicited from Stephen Rapundalo (Ward 1) an update on the development of the Library Lot – he chairs the committee charged with overseeing the RFP process.

Heritage Row

Heritage Row is a residential project proposed for South Fifth Avenue just south of William Street. In its current form it includes 79 units – 12 efficiencies, 9 1-bedroom, 43 2-bedroom, 14 3-bedroom, and 1 5-bedroom apartment. Those units will be distributed over seven renovated existing houses and three buildings to be constructed behind the existing houses. [Additional Chronicle coverage: "Heritage Row Moves to City Council"]

Heritage Row is a planned unit development (PUD), which would require a rezoning of the property. That’s because, as proposed, the project does not conform to the existing R4C zoning on the land.

Sabra Briere (Ward 1), Carsten Hohnke (Ward 5) and Tony Derezinski (Ward 2) confer before the start of the council meeting.

The project has a history stretching back over two years, when it was called City Place. In January 2009 the city council considered a different version PUD, consisting of a single building that would have replaced the seven houses. Subsequently, a matter-of-right version of the project has been proposed and approved. The city also has established an historic district study area that includes the site of Heritage Row. [See Chronicle coverage: "S. Fifth Avenue: Historic District, Development"]

Events of the last two weeks have a certain déjà vu flavor with respect to the project’s long history. A procedural error on the city’s part involving proper publication of the public hearing notice for the site plan led in part to the council’s decision to postpone both votes on Monday night – for the site plan and for the rezoning. [See Chronicle coverage: "Heritage Row Vote Likely Delayed"] That was reminiscent of a procedural error last year that led the city council to remand a matter-of-right version of City Place back to the planning commission.

On Monday, the council learned that a protest petition had been filed about Heritage Row – by Tom Whitaker, who is former president of the Germantown Neighborhood Association. The petition had been filed around 3 p.m. the afternoon of the meeting.

That recalled the late-hour submission of a protest petition in January 2009, which came the Friday before the Monday meeting. From The Chronicle’s report of the Jan. 3, 2009 meeting:

[Kevin] McDonald said the protest petition had been received late Friday, then turned over to planning and development services on Monday (the day of the meeting). The calculations of area were done by a planner working with a GIS specialist. It’s a calculation made complex because public area must be subtracted. Names of owners on the petition were compared with names in the assessor’s system. McDonald indicated that 24% of the area was covered, and thus met the requirement of at least 20%. [Mayor John] Hieftje elicited from McDonald an assessment of the late-hour submission of the protest as not unusual.

As of late Wednesday, the city had not yet verified the petition submitted Monday afternoon on Heritage Row.

That meant there were two reasons for postponing the vote on the project. First, there had been a public noticing issue with the site plan public hearing, so the site plan vote needed to be postponed – and that is intimately related to the rezoning issue. Another reason for postponing was the still-uncertain status of the petition’s validation.

Heritage Row: Protest Petition

The impact of a protest petition is that it bumps the required majority for city council approval from six votes to eight. A recent vote on The Moravian – a PUD in the same neighborhood – failed when it had six votes, but not the eight required for approval. [See Chronicle coverage: "Six Vote Majority Leaves The Moravian Short"]

On the protest petition, Chapter 55 Article XI, Section 5:107 (5) of the city code specifies that:

(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.

Heritage Row: What Lies Ahead

The decision on Heritage Row, now projected for June 21, 2010, would overlap with the first reading before the city council of a proposed historic district, tentatively scheduled for the same meeting.

If the council approves the Heritage Row PUD, it’s also possible that the historic district would be approved, and that the Heritage Row project would not pass muster with the city’s historic district commission – although developer Alex de Parry has said that he thinks the project would meet historic restoration standards. [See Chronicle coverage: "Fifth Avenue Project to Meet Historic Standards"]

If the council rejects the Heritage Row PUD and also declines to establish the area as an historic district, then the matter-of-right version of the project that has already won council approval remains a possibility.

The Chronicle asked Whitaker in a phone interview whether he thought it wasn’t somewhat of a risk to file the protest petition, thus helping to defeat the Heritage Row PUD, when the historic district is also not certain, and the matter-of-right project was already approved for the R4C zoning. But Whitaker was still sanguine, pointing to the possibility of zoning reform for R4C – reforms that would address the definition of setbacks for properties without perfectly uniform edges and the definition of a dormer.

Those specific reforms would have an impact on the matter-of-right City Place project already approved. Whitaker contends the reforms could still be enacted and would apply to the City Place matter-of-right project, and at The Chronicle’s request he emailed a description of a case supporting his contention:

A Michigan case that affirms this is Belvidere Township v. Heinze, 241 Mich.App. 324, 615 N.W. 2d 250 (2000). In that case a hog farmer planned and spent a considerable sum in preparing (designs, permits, estimates, access road, etc,) to build a consolidated animal feeding operation, but in the meantime, the township changed the zoning ordinance. He had not put a substantial amount of money into actual construction of the feeding operation itself and the court held that he did not have vested rights and the new zoning would apply, so, no CAFO.

Heritage Row: Public Hearings

Ethel Potts stated that she did not think the council could approve the rezoning, citing the Chapter 55 requirement in the city code that there be a compelling justification for the requested departure from the existing zoning.

In this case, Potts said, the departures were an increase in height, a decrease in the setbacks, an increase in the density, and a request to put aside parking requirements. Against that, she questioned what the public benefit was. She asked the council to state their compelling justifications before voting, which was something that the planning commission had not done, and it left everyone “mystified,” she said.

Ethel Potts prepares to speak against the Heritage Row project.

Potts spoke at both the PUD rezoning hearing as well as the site plan hearing. She allowed that a PUD can deviate from the existing zoning, but that the amount of deviation proposed by Heritage Row was unacceptable – there would be only a 15-foot setback instead of the big backyards currently behind the houses, she said. She cautioned the council against being fooled by the new name and proposal to renovate the old houses. They would be lined up in a rigid row like a “pseudo-historic theme park,” she said.

Adam de Angeli introduced himself as a resident of 427 S. Fifth, one of the houses that is slated to be renovated as part of the project. During the construction, he said, he would not be able to live there, so the project would effectively put him out of his home. However, he noted that there was nothing in the lease that said he could live there as long as he liked. It was the landlord’s property, he said, and he did not see a reasonable cause to prevent the landlord from developing his property.

Joan Lowenstein – a former city councilmember, former planning commissioner, and current member of the Ann Arbor Downtown Development Authority board – told the council that she did not think that leaving the property the way it currently is would improve the city. As a planning commissioner, she allowed, she had voted against an earlier version of the project, saying that it “would break [her] heart” to see the houses lost.

Joan Lowenstein speaks in support of Heritage Row.

But the current proposal, Lowenstein said, would restore the houses and take off the additions that had been made over the years. She said the new construction would provide more places for people to live, provide public space that didn’t now exist, add to the amount of affordable housing available and improve the streetscape.

There were a few minor changes, she said, that needed to be made to the city’s zoning to accommodate the project. The idea that a single family would come and purchase one of the houses for half a million dollars and invest another half million to fix it up so that a family could live there was, she said, a “fiction.” She characterized the new building proposed for construction behind the seven houses as within the character of the neighborhood.

Piotr Michalowski told the council he lived one block away from the proposed project. He said he’d spoken many times before about the project – on the first occasion he’d talked about the fact that the whole point centered around where the project is proposed and how that related to plans like the city’s Central Area Plan. Plans such as those, he said, had been subject to substantial public interaction. Speaking from a “moral point of view,” he said, those plans are the basis for “what we’re supposed to do.” The project, he said, breaks the pact between the government and the area residents. He allowed that the changes between earlier versions of the project and the current version represented tremendous progress, but it was still too massive and did not work.

Nick Collins introduced himself as a resident of one of the houses on Fifth Avenue that is part of the project site: 433 S. Fifth Ave., the Herbert Slauson house. Collins noted that he’d attended Slauson Middle School. He commended the developer, Alex de Parry, for his efforts to include restoration of the seven houses in the current plan. However, he urged the council to reject the proposal, saying that the PUD option should be reserved for extraordinary situations. If the council was considering an historic district designation, why would it grant the PUD rezoning? Collins told the council that they needed to have the rezoning debate out in the open instead of letting it be fought out between neighborhoods and developers.

Tom Petiet wondered how many times he needed to appear to speak against this proposal. The citizenry, he said, kept getting beat on until they were tired. The number of units proposed in the project, he said, had not changed from the first proposals and he contended that they would be student rentals. The neighborhood, like the Old West Side historic district, he said, was worth preserving.

Kathy Boris urged the council to vote against the proposal. A PUD should be the exception, not the rule, she said. She asked the council to uphold the social compact.

Christine Crockett said that several weeks ago she’d been a guest at the Downtown Citizens Advisory Council to hear a presentation on Zaragon Place 2 – it would be a high rise and she was delighted to see it. It was the right project in the right place, she said. [The proposed 14-story apartment building would be located at the southeast corner of Thompson and William, next to Cottage Inn.] The Heritage Row project, said Crockett, would destroy seven of the most historic homes in Ann Arbor. If the city needed more density – and she believed there was a demand – then density should be put into the newly defined D1 areas.

Kim Kachadoorian cited the goals of the city’s Central Area Plan in arguing against the Heritage Row project. One of the goals, she said, was to protect houses from conversion to business use. It was a largely intact neighborhood, she said.

Deanna Relyea said she appreciated the gradual changing of the project from the original proposal, but concluded that it was “not there, yet.” She contended that the massiveness of the buildings behind the houses to be renovated canceled out the benefit of the renovation. She also asked that the project be postponed until a decision on the recommended historic district is voted on.

Bill Kreighbaum said there was a compelling public interest in higher density. The location was within walking distance to the University of Michigan campus as well as downtown, he said, and would allow a 2-3 car household to get by with 1-2 cars. It would help provide a critical mass for improved public transportation, he said.

Jim Mogensen described the city as being in a battle that was larger than the project. On one extreme was a view – the Libertarian view – that took as a premise that there shouldn’t be zoning at all and that it would all work itself out. He noted that there would be a final meeting of the R4C/R2A review committee, and the decision on a recommended historic district in the area would be made, but as the debate over what happens in the neighborhoods downtown continued, projects happened in the meantime. A PUD was a way to negotiate the view on each side of the spectrum, he said. He was concerned about the debate taking place through a PUD.

Susan Whitaker spoke in opposition to the Heritage Row project.

Susan Whitaker, alluding to Joan Lowenstein’s description of a family purchasing a house in the neighborhood in order to live in it as a “fiction,” introduced herself as a “fiction” who lived with her school-aged children on Fifth Avenue. She then cited various sections of the Downtown Plan adopted last year by the city council, including “[p. 24] improve downtown’s appeal as a residential location by protecting the stability of its adjacent residential neighborhoods edges.” She concluded by saying, “Zoning matters. Please don’t throw it out.” She added that the residents of the neighborhood are opposed to the project – council could see that from the petition that had been signed.

Outcome: With no discussion, the council voted to postpone the votes on the Heritage Row site plan and rezoning until June 21, 2010. The council received advice from legal counsel during a closed session, added to the agenda in a slot before the public hearings, which was presumably about the Heritage Row project.

Water/Sewer Rate Increase

To illustrate the increase for water and sewer rates, here’s the proposed changes for the Residential 1 rate. A unit is 100 cubic feet, or 748 gallons:

UNITS    $Old  $New

1-7      1.14  1.23
8-28     2.43  2.53
29-45    3.99  4.23
over 45  5.75  6.10

-

From the city code:

(5) “Residential 1 rate” shall mean the rate applied to the domestic meter usage for residential customers where 4 or fewer dwelling units are served off of the same meter.
(6) “Residential 2 rate” shall mean the rate applied to the domestic meter usage for residential customers with both a domestic and a water only meter where 4 or fewer dwelling units are served off of the same meter.

Water/Sewer Public Commentary

Thomas Partridge spoke against the water and sewer rate increases.

Jim Mogensen referenced the cover memo accompanying the resolution that increased water and sewer rates. He noted that we are “not out of the woods yet” but that the city now had better plans. He observed that one effect of less consumption was a greater need to raise rates. He noted that one approach was to wait until everything fell apart and then try to fix it, citing the approach that had been taken with the city’s parking structures. He reminded council that the University of Michigan recently had to “help us out” with work done in connection with the Central Campus Transit Center on North University by giving the city a “gift” [$450,000] to do work related to utilities and street repair that the city would ordinarily have paid for.

Water/Sewer Council Deliberations

Before the council approved the rate increases, mayor John Hieftje asked Sue McCormick, the city’s public services area administrator, to comment. She described how they planned by looking six years out, but focused on the first three years. The idea was to “levelize” rate increases – to smooth them out so that increases were smaller in any given year. The strategy also allowed the city to develop a reserve to help fund major infrastructure projects. As examples, she gave the solids handling facility at the wastewater treatment plant, which was nearly complete – a $42 million investment. Half of the liquid processing plant would also be reconstructed, she said, with $28 million to be spent next year on the $70 million project.

In future years, she said, they were projecting increases in rates of 3-3.5%.

Carsten Hohnke (Ward 5) indicated that he’d done research on utility rate increases in other cities and that in communities like Sterling Heights, Lansing and Grand Rapids they were looking at increases of 6% to 10% this year. He concluded that it demonstrated the rate increases in Ann Arbor were having the desired effect.

Sabra Briere (Ward 1) asked for information on citizens’ conservation efforts through rain barrels and other measures. McCormick indicated that she’d assemble some data.

Outcome: The council unanimously approved the increases in water and sewer rates.

Ann Arbor SPARK Allocation

Sandi Smith (Ward 1) asked that a $75,000 allocation for Ann Arbor SPARK, which is an organization that does economic development work, be pulled out of the consent agenda.

She stated that she didn’t think that $75,000 reflected enough energy directed to economic development. She asked Carsten Hohnke (Ward 5) to provide some comment – he recently served on SPARK’s executive committee.

Hohnke indicated that he no longer served on the executive committee.

[The recent round of new executive committee appointments for Ann Arbor SPARK, announced in late May, included: Elliot Forsyth, senior vice president at ProQuest; Jan Garfinkle, managing director for Arboretum Ventures; Leigh R. Greden, former Ann Arbor city councilmember and attorney for Miller Canfield, but now executive director of government and community relations for Eastern Michigan University; Verna McDaniel, Washtenaw County administrator; Michael Staebler, an attorney with Pepper Hamilton LLP; and Maria Thompson, former president of A123’s Ann Arbor operations.]

New members to the Ann Arbor SPARK board of directors are EMU president Susan Martin and Ann Arbor mayor John Hieftje.

Hohnke suggested that people who had more experience with the local development finance authority (LDFA) might be better able to comment. It was an allusion to Stephen Rapundalo (Ward 2), who serves as the city council representative to the LDFA and currently chairs that body. The LDFA is a tax increment finance district created as a Michigan SmartZone. It contracts with SPARK to operate a business accelerator. [Previous Chronicle coverage: "Budget Round 5: Economic Development"]

Rapundalo began his remarks by stating that the $75,000 the council was authorizing was not a membership fee. It was likely an allusion to the cover memo accompanying the resolution which indicates: “Funding for this contract is included in the city-wide membership account in the approved FY 2010/11 budget.” The funding source is likely a legacy of the previous entity with which SPARK merged – the Washtenaw Development Council – a membership-based organization to which the city belonged.

Rapundalo noted that historically the amount of funding that had been allocated to SPARK was $50,000. The ostensible purpose of the funding, he said, was to help in the promotion of the city in SPARK’s recruitment efforts and with some aspects of the business accelerator. He indicated that other support came from Washtenaw County and from the University of Michigan.

Smith expressed an interest in continuing the dialog about economic development and increasing the amount of support.

Stephen Kunselman (Ward 3) had a number of questions about SPARK. Was the funding an extra incentive to give extra attention to Ann Arbor? Had other communities in the Ann Arbor area given extra? He asked for a reminder of what the projected deficit was for next fiscal year. Could the city afford the extra $25,000?

Hieftje responded to Kunselman’s question about the deficit by saying that the city had just recently balanced its budget.

Marcia Higgins (Ward 4) indicated that the additional $25,000 was based on the idea that SPARK would leverage the entire southeast Michigan region and that several other communities contributed to SPARK’s funding as well. Some of the money went to “overhead,” not specific activities, she said. The money Ann Arbor gave, she continued, did not give Ann Arbor any more leverage than any other group. The idea, she said, is that what’s good for the county is good for the city. She concluded that Ann Arbor had gotten a return on its $75,000 investment.

Outcome: The council unanimously approved the $75,000 allocation to Ann Arbor SPARK.

Recycling Code Revision

Before the council were amendments to the city code that are being enacted in anticipation of the city’s conversion to single-stream recycling in July – two separate small totes will be replaced with a single 64-gallon cart. Some examples of changes [italics indicates new language, while a strike-through indicates that the language will be deleted from the code]:

The weight of the recyclables inside the recycling curbcarts must not exceed 224 pounds for a 64 gallon curbcart or pro-rated amount for a different sized container.

Recyclable containers and bundles must not exceed 50 pounds.

[...]

Upon lease signing, property managers must provide new residents with recycling educational materials and show them where recycling containers are located at rental properties. Property managers must also provide annual reminders to all tenants about recycling. Recycling educational materials are available free of charge by contacting the city’s recycling contractor, Recycle Ann Arbor, at 734-662-6288 or info@recycleannarbor.org.

Marcia Higgins (Ward 4) noted that under the section on points of collection, the city could refuse collection if snow was not cleared to provide access. She got clarification that residents were not expected to shovel the city streets in order to provide access – the reference was to access points on private streets or in multi-family complexes.

Stephen Kunselman (Ward 3) wanted to know who had reviewed the code changes. Tom McMurtrie, the city’s solid waste coordinator, told Kunselman there was no longer a solid waste commission, but that it had been reviewed by the Washtenaw Area Apartment Association as well as the Ann Arbor Area Chamber of Commerce and the city attorney’s office.

Kunselman asked if the actual weight limits could be included as part of the ordinance instead of requiring someone to perform the calculations for the pro-rated limits – “that’s a lot of math,” he said.

He also wondered if the trucks were actually capable of lifting some of the larger containers if they were loaded to the maximum pro-rated amount. McMurtrie indicated that the truck arms could lift the containers.

Kunselman questioned whether it was appropriate to revoke a certificate of occupancy – as allowed in the code – if the requirements of the code were not met. He also questioned whether the educational requirement on landlords should be included in a piece of legislation. McMurtrie indicated that the rationale for including the educational requirement was to encourage as much compliance as possible. Kunselman agreed with McMurtrie on the goal of compliance and the role of education, but still wondered whether it should be legislated – “How do you enforce that?” he asked.

Mayor John Hieftje offered that there were other requirements on landlords that they provide educational information, which Kevin McDonald of the city attorney’s office confirmed. Sandi Smith (Ward 1) gave another example: the federal requirement that information on lead-based paint be provided.

Outcome: The amendments to the city code on recycling carts were approved on first reading. The city council will need to approve them on second reading in order for them to take effect.

Permissible Uses of Public Land

Before the council was a change to the list of designated uses for land zoned as public land (PL). The planning commission had considered and unanimously recommended the change at its May 4, 2010 meeting. It’s been the subject of conversation in the community over the last couple of months in connection with the proposed Fuller Road Station – the project that prompted the desire to change the possible uses in the PL designation. The proposed change would replace “municipal airport” with “transportation facilities.”

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

Marcia Higgins (Ward 4) wanted to know why the change was a replacement of one term with another – why not add a term instead? Wendy Rampson, head of planning for the city, indicated that adding a list of possible facilities would possibly be seen as exhaustive. Higgins got confirmation that the impetus for the change was one project – Fuller Road Station.

Sabra Briere (Ward 1) said it was an interesting question as to whether parking structures were transportation facilities. Rampson commented that before the A2D2 initiative, which rezoned downtown Ann Arbor, parking lots and structures were zoned P for parking district. They’ve moved away from that approach, she said, and the result of the A2D2 process was to zone those areas either D1 or PL in order to reflect the expectation that their use could be multi-faceted.

Briere asked about the park-and-ride lots, which were simple parking not associated with any use. Rampson explained that the new park-and-ride lots were located in the public right of way and were zoned PL.

Christopher Taylor (Ward 3) wanted to know if “transportation facility” had an established definition. Rampson indicated that it was not listed out separately and defined in the code, but rather it was taken to be what is commonly understood by a reasonable person. Taylor got confirmation from Rampson that within the industry it’s an established and understood term.

Higgins indicated that while she’d support the change at its first reading, she’d prefer to see the word “airport” included in the language. Margie Teall (Ward 4) concurred with Higgins on leaving in the word “airport.” Tony Derezinski (Ward 2) said that Rampson had accurately depicted the rationale from the planning commission’s discussion – Derezinski is the council’s representative on the planning commission. He urged the council to go along with the change.

Kunselman suggested that the language be made parallel with the “such as” language in other possible uses for PL. He wondered if that change would be significant enough to require a second first reading. Kevin McDonald from the city attorney’s office indicated he didn’t think it would require an additional reading – it would amount to an explication of what a particular term meant.

Outcome: On first reading, the council unanimously approved the wording change for possible PL uses. Approval at a second reading will be required for final approval.

Golf Courses

Also related to public land was some public commentary made near the end of the meeting.

The city is currently working on a request for proposals to privatize certain operations at Huron Hills golf course. The city council gave its tacit approval for the city to develop an RFP at a meeting it held earlier in the year on Feb. 8 devoted to the topic of the city’s budget.

Left to right: Jane Lumm, Ted Annis, and Leslie Morris.

On Monday during public commentary general time at the conclusion of the meeting, three people spoke about the issue.

Leslie Morris, who served on the Ann Arbor city council in the late 1970s and early 1980s, addressed the council about the possibility of privatizing part of Huron Hills. She began by noting that Ann Arbor likes parks and that was demonstrated by the passage of every parks-related millage since 1966.

Morris concluded by stating that residents did not want the city to sell parks, lease parks, or to use parks for opportunities for someone else’s private business development. She cautioned that any attempt to privatize operations at Huron Hills would be met with opposition from the community, and hinted that some community support for a possible future income tax ballot proposal would be contingent on the city not pursuing privatization at Huron Hills. [.pdf of Morris' complete statement]

Myra Larson was next up to address the council on the topic of the golf courses. Larson is professor emerita at the University of Michigan School of Art and Design. She referred the council to an Other Voices piece she’d written for The Ann Arbor News about Huron Hills – “Huron Hills site is valuable even if no one is golfing there,” which is available through the Ann Arbor District Library’s online archives of News articles. [Registration is required, but it is free.] At Monday’s meeting, Larson hit some of the same themes as in that piece, which included the line: “To alter the environment of the Huron Hills site in any manner will have a very direct and negative impact on the river and the green infrastructure of our city.” On Monday, she noted that in 2003 the voters of Ann Arbor had voted to tax themselves for the greenbelt millage – why not have green space in the city as well? She noted that the 90-year-old course had been designed by Thomas Bendelow, who was the “Johnny Appleseed of golf.”

Jane Lumm was the third speaker to address the council about the golf courses. Lumm served on the city council in the mid- to late 1990s, and gave mayor John Hieftje the most serious challenge he’s faced in a November election – in 2004, gaining the endorsement of the now defunct Ann Arbor News.

Lumm offered some reasons why the privatization of Huron Hills didn’t make sense. The plan to increase revenues at both of the city’s golf courses – Leslie Park and Huron Hills – was working, she said, so she encouraged the city to “work the plan.” The total revenues for FY 2009 and 2010, she said, had exceeded their targets by over $100,000. Over the last three years, she added, Huron Hills had show 39% growth in revenues and Leslie had shown 37% growth. The total revenue from both courses for the FY 2011 budget, she noted, was $1.176 million.

Lumm objected to the portrayal in the community of golf courses costing the city a fortune, with Huron Hills as the main problem. On an operating basis, she said, Leslie showed a $98,000 surplus while Huron Hills showed a $10,000 loss. Only when the municipal service charges were factored in to compute the fully allocated costs, she continued, did the picture change to one where Leslie showed $220,000 and Huron Hills $250,000 worth of losses.

She asked the council not to place a “90-year-old jewel” at risk.

AATA Board Appointment

At their May 17 meeting, the council had confirmed the nomination of Anya Dale to the Ann Arbor Transportation Authority board to replace Paul Ajegba. Nominated, but not confirmed at that meeting, was Roger Kerson as a replacement for Ted Annis. The confirmation of Dale came with dissent from Sabra Briere (Ward 1) and the suggestion from Stephen Kunselman (Ward 3) that both nominees introduce themselves to the council.

AATA: Public Comment on Appointments

Tim Hull introduced himself as a resident of Ward 2. He stated that there needs to be adequate citizen representation on the board of the Ann Arbor Transportation Authority, but that there seems to be no available contact information for board members. He asked how board members could represent the public interest if the public cannot contact them.

Hull characterized the process for making appointments as flawed and disorganized. Aside from occasional brief comments made at the council meetings, there was no information presented about the process or the appointees, he said. He stated that he agreed with Kunselman’s suggestion made at the previous meeting that nominees for board appointments introduce themselves to the council and take questions. He said that mayor John Hieftje’s response to Kunselman – that they should do things the way they’d always done it – was a poor reason to do things that way. Hull said he expected better from elected officials. He said that elected officials should represent us, not sit back and do what’s always been done.

AATA: Mayoral Comment and Confirmation

The council approved the nomination of Roger Kerson to the board of the Ann Arbor Transportation Authority, to replace Ted Annis. That nomination had been placed before the council at its last meeting.

Annis was in the audience as part of a group that addressed the council on the topic of the possible privatization of some operations at the Huron Hills golf course. Annis himself did not speak during public commentary. Hieftje took the opportunity to thank Annis for the work he’d done on the AATA board, bringing his financial and management expertise to bear on the AATA.

Hieftje then responded to Tim Hull’s comments made at the start of the meeting by stating that all appointments are taken seriously. He said the reason that there is a period of time between nomination and confirmation was so that people could have a chance to read the resumes of nominees and give them a call.

Hieftje said that the city asked a lot of its board and commission members, and that they tried to shield them from being individually approached by the public. This was different from what was expected of city councilmembers, he said, who campaigned for the job.

Hieftje said it would be a burden if nominees had to appear before the council to answer questions, which could wind up being a “grilling.” These were not appointments to the Supreme Court, he said. The public should have to “go through the front office” for access to board and commission members, he said.

It was a good system that had been used for a very long time, Hieftje concluded, and until a better one came along, it would be the one that was used.

Sandi Smith (Ward 1) noted that people who wanted to serve on boards and commissions needed to apply in order to be considered.

Hieftje continued by saying that often people stopped by to talk to him during his office hours on Fridays when they picked up the application.

Later, Stephen Kunselman (Ward 3) thanked the mayor for nominating him to the planning commission back in 2004.

Outcome: The council unanimously confirmed the appointment of Roger Kerson to the AATA board.

Library Lot

Alan Haber said he wanted to continue to put before the council the issue of the Library Lot. The committee overseeing the request for proposals (RFP) process had received a variety of proposals, he said, but had not found any of them satisfactory. The committee was “just sitting on this,” he said, when they should report back to the council what they’d found. Many people were interested, he said, in a self-development process through some kind of community consortium – not in a commercial context, but in a human context. He noted that the construction currently underway on the underground parking garage is amazing and that there needed to be a viewing area so that people could see it.

Stephen Rapundalo (Ward 2) responded to Haber’s comments on the Library Lot by describing the process as being in a “holding pattern.” The committee had been prepared to engage a consultant to assist in the review of the two finalist proposals, and the potential consultant had been reviewed by city administrator Roger Fraser and executive director of the DDA Susan Pollay, but they’d stopped short of signing a contract with the consultant. An unanticipated change in personnel within the consultant’s organization had led them to re-evaluate the pool. Rapundalo said it was unfortunate that Fraser himself was not there at the meeting to provide more details.

Other Agenda Items

The council handled a variety of other items as a part of its agenda. They included the following:

Other: Property Assessed Clean Energy (PACE) Legislation

The council considered a resolution urging the state senate to pass enabling legislation already approved by the state house that would allow residents to leverage their property tax bill in order to undertake energy improvements in their homes. Sandi Smith (Ward 1) noted that the good thing about the initiative was that the improvements would stay with the property. Carsten Hohnke (Ward 5) praised the efforts of the city’s environmental coordinator, Matt Naud, to make sure that the city was ready to take advantage of the legislation when it passed. [Previous Chronicle coverage: "Special District Might Fund Energy Program"]

Outcome: The council unanimously approved the resolution urging passage of PACE legislation.

Other: Near North Brownfield

Before the council was a resolution that amended the development agreement for the Near North project on North Main Street. The amendment, said Marcia Higgins (Ward 4), had come as a suggestion from the brownfield review committee. The city had an interest in seeing that the soil was actually cleaned up, and the amended agreement simply reflects that the developer will provide documentation that the clean up has taken place. Near North is an affordable housing complex being developed by the nonprofit Avalon Housing.

Outcome: The council unanimously approved the resolution.

Other: Tiger 2 Application

Before the council was a resolution supporting the city’s Transportation Investment Generating Economic Recovery (TIGER) 2 grant application for the East Stadium bridges replacement project. Margie Teall (Ward 4) urged everyone to support the resolution, saying it was similar to the county’s resolution and would be provided as part of the application packet.

Outcome: The council unanimously approved the resolution.

Other: Compost Carts

On the agenda was a $386,470 item that authorized purchase of 8,000 compost carts from Toter Inc. Sandi Smith (Ward 1) wanted to know how many carts the city kept on hand as inventory. Tom McMurtrie, the city’s solid waste coordinator, told her that the city typically purchases carts a truckload at a time, which corresponded to their on-hand inventory – about 500 carts, he said.

According to a memo accompanying the resolution, the city is switching vendors for the carts, due to some reported problems with wheels breaking and slippage in the automated arm for the carts from the previous vendor. Marcia Higgins (Ward 4) wanted to know what happens if there’s wheel breakage on a cart supplied by the previous vendor. McMurtrie explained that there’s a 10-year warranty provided by that vendor, Cascade Corporation.

The city is making the carts available at a cost of $25, which is less than the city’s cost for the carts, in order to encourage their use. The city is moving to a completely containerized approach to fall leaf collection.

Compost carts can be ordered online at www.a2gov.org/compost. They can also be purchased at the city’s customer service center, 220 E. Huron, or by calling 734-994-7336.

Outcome: The council unanimously approved the resolution.

Other: Airport-Related Items

Three agenda items related to the airport. The main items were a $101,200 contract with the Michigan Department of Transportation for an airfield marking and signage project, as well as a mapping project. The $101,200 consists of $96,140 in federal funds, $2,530 in state funds and $2,530 in airport matching funds.

The other two items were part of the MDOT project – $54,190 for the airfield marking and signage, with a local share of $1,355. And the final item was $25,000 for the mapping project.

In response to a question from Sabra Briere (Ward 1), the airport manager, Matthew Kulhanek, confirmed that the agenda items would not result in anything resembling a runway expansion.

Stephen Kunselman (Ward 3) asked about the “Exhibit A” referenced in a cover memo. Kulhanek said it included a boundary survey of the property – the airport was made up of several parcels, he said. Asked what future purpose the survey had, Kulhanek indicated that it would be used to satisfy MDOT and FAA requirements.

Outcome: All three airport-related items were unanimously approved.

Communications and Public Commentary

Beyond public commentary already mentioned, several other people, including some public officials, spoke on topics not necessarily on the agenda.

Comment: Couch Ban

Kim LeMasters addressed the council on the topic of a possible ban on porch couches. She introduced herself as the mother of Renden LeMasters, who had died in a house fire on South State street the day before Easter this year. The final report on the fire, she said, was not complete, but there were strong indications that it had started in a trash container, spread to a couch, and then caught the house on fire. She noted that previous attempts to pass an ordinance banning porch couches had met with opposition from the student community.

Kim LeMasters’ son Renden died in a house fire in which a couch is thought to have played a role in the rapid spread of the flames.

LeMasters said that if Renden were here, he’d advocate for such a ban. She said that she’d simply wanted to introduce herself to the council and asked for verification that some kind of ordinance had been drafted. She also inquired about a possible timeline for its consideration, then concluded by saying that she would be a strong and active voice for such an ordinance.

[In the wake of the fire, Bob Snyder also called for a review of the possibility of a couch ban ordinance – at the council's April 5, 2010 meeting and at the council's April 18 Sunday caucus.]

Comment/Communications: Heavy Rains

Mae Keller introduced herself as speaking on behalf of residents of Village Oaks Court and Chaucer Court, located off Ann Arbor-Saline Road. She related how stormwater flowing over land in the neighborhood had resulted in 70,000 gallons of water coming through an egress window in the basement of the home of Larry and Linda Fingerle, a torrent that had posed an immediate danger to life. She also described other damage to homes in the neighborhood. The Fingerles’ house had sustained $100,000 to $150,000 in damage, she said, which was not covered by insurance because it had not been a “flood.” The excessive overland flow of water, she said, was the result of a poorly designed stormwater sewer system. Improvements had been undertaken to the system, she said, but the area had not been tied into it. She concluded by saying that the neighborhood was willing to work with anyone who was willing to work with them.

Filling in for city administrator Roger Fraser for the evening was Sue McCormick, the city’s public services area administrator. In her report, the recent heavy rains were a main topic. Depending on the specific area of the city, she said, up to 2.7 inches of rain had fallen. Just after midnight between Saturday and Sunday, she said, an inch of rain had fallen in a half hour. As of 4 p.m. on Monday, the city had received 42 calls with various issues – McCormick said each one would be investigated. There’d also been several reports of downed trees and limbs, as well as erosion along gravel roads.

Communication: Residential Parking Permits

In her communications time, Sandi Smith (Ward 1) told her colleagues that she and her Ward 1 colleague, Sabra Briere, would be bringing a proposal at the following meeting for a residential parking permit program for the Old Fourth Ward. [The program is meant, in part, to ensure that residents' street parking will not be taken up by residents of the University of Michigan North Quad dormitory, which is due to open this fall.]

Comment: Traffic Safety

Kathy Griswold noted that there was an item on the council’s consent agenda that addressed traffic calming. She said she supported traffic calming, because the goal of traffic calming measures is the safety of citizens. However, she said that the most cost effective measure that can be taken to improve safety – according to the book “Roadway Safety and Tort Liability”– was improving sightlines at intersections. She pointed out that traffic calming measures had been installed at the intersection at 7th & Washington, but that the sight distance at two of the four corners of the intersection is in violation of the city’s ordinances.

She told the council that in 2000 she was hired by the Ann Arbor Public Schools (AAPS) as a consultant to improve the safety of students while traveling to and from public school by doing a school walk zone analysis. She said that in response to a question from Stephen Rapundalo (Ward 2) about the King Elementary School crosswalk – she’s advocated for moving that crosswalk from its mid-block location to a nearby intersection – she’d looked at the situation at Thurston Elementary. She reported that there was graffiti covering some of the signs there and that this needed to be addressed. She stated that the joint city/school transportation safety committee, on which she serves, would be meeting to update a safety plan, and she asked the council to support it when it came before them. She thanked the councilmembers who’d attended the previous night’s caucus meeting for their discussion on the issue.

Comment: Advocacy for Most Vulnerable

Tom Partridge introduced himself as a Washtenaw County Democratic candidate for the District 18 state senate seat. He said he was an advocate for all people of Washtenaw County – seniors, the disabled, and the economically challenged. They need representation that will protect them, who are the most vulnerable, he said. He called for affordable housing, public transportation, education and health care.

Comment: Palestine and Israel

Blaine Coleman began his remarks by asking the Community Television Network camera operator to focus on the sign he’d placed in front of the podium, which read “Ann Arbor hereby boycotts all products from Israel.” He stated that he was bringing the resolution printed on the sign before the council for consideration that night. The Ann Arbor boycott of Israeli products, he said, had been proposed back in 1984, so the council had had 26 years to think about it. A week ago, Coleman said, the Israel military had killed nine people on boarding a humanitarian aid boat headed for Gaza and had shot an American citizen in the head. That was the kind of state they were supporting, Coleman said, when mayor John Hieftje and councilmember Mike Anglin attend the “Celebrate Israel” event.

Coleman repeated the resolution on the sign and queried councilmembers individually on how they would vote, beginning on the right: “Sandi Smith, how do you vote?” He noted the lack of response of each councilmember – Smith, Briere, and Derezinski – before moving on to the next, reaching Rapundalo before his time was up.

[Editor's note: By custom, councilmembers do not respond to direct questions during public commentary. Doing so would likely violate the council rule against allotting speaking time to someone other than the person signed up to speak. However, councilmembers often do use their own communications time on the agenda to respond to public commentary.]

Mozhgan Savabiesfahani noted that she’d personally been appearing before the council since 2002, and that subsequently the state of Israel had committed various crimes, including the most recent case involving the killing of people aboard a humanitarian aid boat. The council had ignored her, she said, and concluded: “I hold you responsible. You are guilty.” She used the remainder of her three-minute speaking time to hold her sign aloft, which read “Boycott Israel.”

Comment: U.S. Census

Tarik Green addressed the council as a member of the U.S. Census. He indicated that as of May 27 on a national level, 75% of the survey was complete. As the work wrapped up, he asked that people cooperate with census workers when they knocked on the door – it would only take 10 minutes, he said. He asked that the community “look out for” the census workers’ safety and noted that all workers would be equipped with a badge with a logo, a flag, and a signature.

Communication: Good News

In the category of good news, Sue McCormick highlighted the city’s LED streetlight program, which is one of three U.S. nominees for the EnergyGlobe Awards.

The Veterans Memorial Park ice arena had also received two awards, she reported.

McCormick gave an update on the construction for the municipal building – they’re currently working on bathroom tile and plumbing, among other projects. Concrete barriers have been repositioned to accommodate the contractors who’ll be coming down Fifth Avenue in connection with the Fifth and Division streetscape improvements being done by the Ann Arbor Downtown Development Authority.

McCormick reported that the warm weather over the weekend had resulted in 4,000 visitors to the city’s public pools and 1,110 canoe rentals.

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

Next council meeting: June 21, 2010 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]

Plans to build an addition behind the brick Zingerman’s Deli building will ultimately require approval from the city’s historic district commission. (Photos by the writer.)

Zingerman’s itself is “handling a complaint” from the city’s Historic District Commission (HDC) – one that can be traced back to a June 2008 Zingerman’s request to demolish two houses, which are located in the city’s Old Fourth Ward historic district.

Now Zingerman’s is bringing back another proposal, but this time they’re not starting formally with the HDC. Instead, they’ll begin by seeking approvals from the city’s planning commission and the city council.

The site plan calls for a two-story, 9,500-square-foot structure to be added to the rear of the deli building, which will carry a price tag of around $4 million. The new building would replace the house at 322 E. Kingsley St. and extend lengthwise towards Community High School.

Zingerman’s started satisfying the formal steps for getting approval of their expansion project this week, on Monday, March 8, by holding a citizens participation meeting.

But Zingerman’s has also met informally with the HDC at two separate work sessions since the start of the year – one in January and the other on Thursday, March 11. Based on a significant change in design between those two meetings, which integrates “the orange house” into the project instead of demolishing it, Zingerman’s is trying to “make it right” for the HDC.

Still, at Thursday’s HDC work session, the Zingerman’s team stressed how great the challenges were – financial and logistical – to preserving the orange house as part of the project design. It seemed apparent that Zingerman’s was making an implicit pitch for members of the HDC to give a green light for the previously proposed project – the one minus both houses.

It was clear enough, in any case, that Jill Thacher – the city planning department’s historic preservation specialist – finally said towards the end of the meeting: “We’ve been over that. I want to keep you from going back to that.”

Background: Certificates, Notices, Zoning Change

In June 2008, the first step Zingerman’s took with their project was to request permission to demolish the two houses from the city’s historic district commission. This time around, Zingerman’s will first seek approval from the city’s planning commission and city council, and then ask for approval from the historic district commission.

Understanding the reason for ordering things differently this time requires a clear understanding of the difference between two notions: (i) a certificate of appropriateness; and (ii) a notice to proceed.

It’s also useful to understand how the zoning code has changed for part of the land since June 2008.

Background:  Certificates of Appropriateness

The minutes from the historic district commission’s June 12, 2008 meeting show that the commission considered Zingerman’s application to demolish two houses – along with a garage – as an application for a certificate of appropriateness. This is one “flavor” of the kind of permission that the HDC can grant.

That application was brought before the HDC without a site plan or drawings to show what Zingerman’s planned to build there. What Zingerman’s had planned at that point was a 3-story new building, compared to the 2-story building that is now being proposed.

During the June 12, 2008 HDC public hearing on the matter, the lack of a presentation on their actual plans was a point on which  Zingerman’s drew criticism. Responding to that criticism, Ken Clein, an architect with Quinn Evans who is working on the project, explained the absence of a specific site plan. From the HDC minutes of that meeting:

Applicant Rebuttal: Mr. Clein – [...] the fact that they are not presenting plans or designs to replace these structures with. It was at the suggestion of staff that we separate that issue from the issue for request for demolition.

The issuance of a certificate of appropriateness for work in an historic district depends in part on whether the building in question is a “contributing” or  a “non-contributing” resource. A building that’s determined to be “non-contributing” is more easily altered than a building that’s “contributing,” under the Secretary of the Interior standards governing historic renovation.

A recent case of requested demolition in the Old West Side historic district – unrelated to Zingerman’s proposal in the Old Fourth Ward – highlighted the same issue of “contributing” versus “non-contributing” buildings. Permission to demolish two houses and a gas station on Second Street was sought by the developer of the Liberty Lofts project, to make it possible to construct additional parking spaces. He’d hoped that the potential for adding parking spaces would help attract a retail tenant for the still-vacant space in the greenhouse structure at First & Washington. [Chronicle coverage: "Demolition in Historic District?" and "Historic Commission: No Approval for Demolition"]

The HDC found the gas station – at the corner of Liberty & Second – to be non-contributing, but found the houses to be contributing. Commissioners voted to issue a certificate of appropriateness to demolish the garage, but wound up splitting 3-3 on all possible resolutions on the two houses.

Similarly, in June 2008 the HDC voted to issue a certificate of appropriateness for the demolition of the Zingerman’s non-contributing garage, but voted to deny the request to demolish the two houses, which commissioners found to be contributing to the Old Fourth Ward. While the HDC vote on the house at 420 Detroit St. was unanimously against demolition, the vote on the fire-damaged 322 E. Kingsley St. house was only 4-3 against demolition.

Background: Notices to Proceed

It seems impossible to reconcile Secretary of Interior standards for appropriate work in an historic district – one of which concerns “reversibility” of the work – with demolition of a building that the commission has determined to be a contributing resource.

However, another option to contemplate – a second “flavor” of permission – is that the HDC could issue a “notice to proceed.” The criteria for issuance of such a notice, from the city code, are as follows:

8:416. Notice to proceed.
(1) Work within a historic district shall be permitted through the issuance of a notice to proceed by the commission if any of the following conditions prevail and if the proposed work can be demonstrated by a finding of the commission to be necessary to substantially improve or correct any of the following conditions:
(a) The resource constitutes a hazard to the safety of the public or to the structure’s occupants.
(b) The resource is a deterrent to a major improvement program that will be of substantial benefit to the community and the applicant proposing the work has obtained all necessary planning and zoning approvals, financing, and environmental clearances.
(c) Retaining the resource will cause undue financial hardship to the owner when a governmental action, an act of God, or other events beyond the owner’s control created the hardship, and all feasible alternatives to eliminate the financial hardship, which may include offering the resource for sale at its fair market value or moving the resource to a vacant site within the historic district, have been attempted and exhausted by the owner.
(d) Retaining the resource is not in the interest of the majority of the community.

In the case of the recent request in the Old West Side for demolition, the Liberty Lofts developer argued that all of the criteria might apply, including (b). However, the commission – in consultation with the city attorney’s office – seemed ultimately to reject (b) as a possibility, citing the fact that the developer had no “planning and zoning approvals, financing, and environmental clearances” as required by (b).

And when Zingerman’s went before the HDC in June 2008, they also did not have planning commission or city council approval for the project.

With their current plan to obtain permissions from the planning commission and the city council first, before returning to the HDC, Zingerman’s would be in a position to make a case for alteration of contributing structures, based on criterion (b).

At the earlier public hearing in June 2008, Peter Pollack, a landscape architect who also lives near Zingerman’s Deli, laid out the case based on exactly that criterion. From the summary of Pollack’s remarks in the HDC minutes of that meeting:

[...] I ask you to put in context with the historic development of what has occurred on this property. Buildings have been  relocated, reoriented and adjusted. This is in the same spirit of that reorientation and adjustment. If you look at the “Notice to Proceed,’ this is a major deterrent to an  improvement program, and I say that this is exactly the case.

Background: Zoning

The Zingerman’s project that will be brought before the planning commission – probably in May – will be intended to meet all applicable zoning codes. That will make it a so-called “matter of right” project. That is possible due in part to a rezoning of the 322 E. Kingsley St. parcel, which took place last summer as part of the Ann Arbor Discovering Downtown (A2D2) rezoning project for all of downtown.

The previous zoning for 322 E. Kingsley St. was R4C, which is designated for residential, not commercial use. The new D2 zoning classification allows for various commercial uses, including restaurants and offices.

The rezoning of 322 Kingsley St. was given preliminary approval by the city council in April 2009 as part of a comprehensive rezoning of downtown Ann Arbor. That required review of the change by the planning commission, which ultimately approved it, in connection with its revision of the city’s downtown plan.

The 322 E. Kingsley St. rezoning was controversial for the planning commission, passing on a 4-3 vote. From The Chronicle’s report of the May 19, 2009 planning commission meeting, when the revision was approved.

During the public hearing, the  planning commission heard from several speakers who objected to the assignment of the D2 designation to the property, on the grounds of  “fairness” and “favoritism” – everyone loves Zingerman’s, themselves included, they said. But that didn’t translate into changing the zoning, just because Zingerman’s asked for it.

They also heard from representatives of Zingerman’s about why the D2 zoning was requested, as well as from a speaker who noted that he’d just witnessed two hours of “serious participation” by citizens who were engaged, and had been properly noticed, and concluded that the notion of fairness had not been violated.

The vote on the commission was 4-3 for following council’s lead in assigning D2 zoning to the parcel. Voting for the D2 designation were: Eric Mahler, Tony Derezinski, Jean Carlberg, and Wendy Woods. Voting against it were: Bonnie Bona, Kirk Westphal, and Ethel Potts. Mahler, responding to an argument made by Peter Pollack at the previous week’s work session, said that the option of pursuing a PUD for a particular project (as an alternative to having the D2 zoning) would, in his opinion, be difficult. For a PUD, Mahler said, a public benefit would have to be demonstrated – and from what he could tell, the kind of project Zingerman’s was contemplating would most likely be for Zingerman’s benefit.

Westphal did not cite “fairness” in voting against the D2 designation, but rather a respect for the long, extended process of community participation that had extended over a few years – none of which had included discussion of the 322 E. Kingsley parcel.

Background: Timeline Overview

• June 12, 2008: Historic district commission denies request for demolition of 322 E. Kingsley St. and 420 Detroit St. [Rocco Disderide's former residence, aka "the orange house."]
• Feb. 19, 2009: Planning commission adopts downtown plan with various revisions but no change to existing R4C zoning of 322 E. Kingsley St.
• April 6, 2009: City council gives initial approval to zoning revisions to downtown requiring alterations to the downtown plan adopted by the planning commission; major alterations include changes in South University area, but also included a rezoning of 322 E. Kingsley St. from R4C to the new D2 classification. The amendment on 322 E. Kingsley St. is introduced by Sandi Smith (Ward 1) and passes with dissent only from Sabra Briere (Ward 1). [link]
• May 19, 2009: Planning commission approves revisions to the downtown plan to accommodate part of the city council’s South University zoning revisions, an East Huron zoning revision, and the 322 E. Kingsley St. revision. [link]
• June 15, 2009: City council adopts downtown plan as revised by the planning commission. [link]
• Nov. 16, 2009: City council gives final approval to downtown zoning revisions, including the D2 designation to 322 E. Kingsley St.
• Jan. 14, 2010: At an HDC work session, Zingerman’s presents plan showing demolition of two houses.
• March 8, 2010: Zingerman’s holds a public participation open house on its proposed expansion.
• March 11, 2010: At an HDC work session, Zingerman’s presents a plan showing demolition of one house only.

Zingerman’s Expansion: January 2010 HDC Work Session

The city’s historic district commission typically conducts its work sessions just after its regular meetings conclude – in the city council workroom, which adjoins the council chambers where the commission holds its regular meetings.

At the Jan. 14, 2010 HDC work session, Ken Clein of Quinn Evans Architects was joined by Gary Bruder, Zingerman’s legal counsel, and Nancy Rucker, who works in Zingerman’s Deli operations.

Clein presented the project with conceptual drawings and a study model – which at that time showed the removal of both the 322 E. Kingsley St. house and the 420 Detroit St. house.

Clein explained that the proposal to expand was related to an interest in preserving the original historic deli building. The current cooking and dishwashing operations in the building, he explained, generated moisture that escaped through the exterior brick, and caused deterioration of the wall. The evidence of the toll that it takes, he said, can be seen on the exterior of the wall facing Kingsley in the form of efflorescence – white salt deposits.

Clein also outlined a number of challenges associated with the Zingerman’s campus, one of them the seven-inch elevation change, which has an impact on what’s required to meet ADA accessibility standards, as well as the tight quarters, which has an impact on where stormwater detention can be undertaken.

The key issue for commissioners, naturally, was the question of removing both houses. Generally, commissioners did not seem wed to the idea of preserving the 322 E. Kingsley St. house.

[The June 2008 vote on that house had been close: 4-3 against demolition. One of the votes against demolition was Michael Bruner, who has since been replaced on the HDC with Patrick McCauley. McCauley's comments at the work session suggest he could be supportive of removing the 322 E. Kingsley St. house.]

On the 420 Detroit St. house, however, McCauley was unambiguous: “I’ll just come out and say it. I don’t think you should tear that house down.”

What McCauley pointed to was the fact that the proposed new building seemed to impinge on just one corner of the house, and for that reason, he did not think the condition was met that the removal of the house be “necessary.”

Clein countered by saying that there was more to it than just the small corner of the house. Among the specific issues he enumerated were: the impact on accessibility and the need to construct ramps; plus proximity of the house to the new structure triggering a requirement of fire-proof sheathing, which added to the expense; and the need to temporarily move the house to accommodate the actual construction of the new building.

Key for Clein was the idea that if cost were no object, then anything was possible – but it was a matter of how much cost was reasonable to ask of someone in order to rehabilitate an historic property.

On the question of expense, commissioner Diane Giannola wondered what the cut-off was for rehabilitation being “too expensive.” She allowed that it was “something to think about.” On the cost question, McCauley contended that it was only a small part of the overall project budget. Clein countered that in ballpark numbers, the rehabilitation of the house would likely be $0.5 million out of a project budget of $3.5 million to $4 million – or 1/7 of the budget, which he did not consider to be a small part of it.

Giannola raised the question of whether the 420 Detroit St. house could be seen from the street, to which McCauley responded: “You can totally see it from the street!” Giannola maintained that it was not a part of the streetscape, but noted that it was still a part of going to Zingerman’s Deli.

On the topic of location, Jill Thacher, the city planning department’s specialist in historic preservation, addressed the topic of the house’s history. It had been moved from the corner where the brick deli building now stands, she said, but that was during the district’s period of significance. This meant the fact that it had been moved was not an argument that it wasn’t a contributing structure. “Let me get the ‘it’s been moved’ argument off the table,” she said. [The same issue had been discussed fairly thoroughly at the HDC's June 2008 meeting.]

Commissioners discussed how far the notion of “necessity” in the criteria for a notice to proceed extended – was it “necessary” that Zingerman’s undertake the expansion at that location?

Commissioner Ellen Ramsburgh wondered if the expansion was more than the site could take. She noted that the Zingerman’s Creamery and Bake House had moved to peripheral locations. “Do you need to be there?”

In her remarks, Ramsburgh was echoing sentiments expressed by then-commissioner Michael Bruner back in June 2008, when he had made the suggestion that Zingerman’s think of moving their operations. The specific location he had in mind was the Old West Side structure adjoining the Liberty Lofts development:

Commissioner Bruner – [...] This may be less than what they need, but there stands today, a project that we reviewed and was approved, a development that includes a 20,000 square foot commercial retail area with parking that is begging to be occupied. [An apparent allusion to the Liberty Lofts greenhouse building.] As preservationists that want to encourage the success of economic projects in the city, perhaps Zingerman’s should consider moving their location as they have with their Creamery, which is at a satellite location, their Bakery which is at a satellite location, their Roadhouse that is a satellite location – this could be relocated as a satellite component at another location, nevertheless retaining this location as it is.

Clein responded to Ramsburgh at the January 2010 HDC working session by wondering if there were another historic district in another town where Zingerman’s could contemplate locating their operations. Ramsburgh: “That’s a threat!”

Zingerman’s Expansion: March Public Meeting, HDC Work Session

At the open house event held on March 8 to introduce the new project to the public, a key difference in the plan was apparent, made since the January HDC work session: The 420 Detroit St. house – “the orange house” –  is now incorporated into the design, both in the drawings and the study model.

HDC work session, March 11, 2010. From the far end of the table, at right, going clockwise: Paul Saginaw, Lori Saginaw, Lesa Rozmarek, Kristina Glusac, Diane Giannola, Ellen Ramsburgh, Nancy Rucker, Gary Bruder, Bill Kinley, Deb Cooper, Ken Clein, Jill Thacher, Patrick McCauley, Rick Strutz, Grace Singleton.

At the open house, Ray Detter, president of the city’s downtown citizen’s advisory council, responded to a mention that the plan now included “the orange house” with the clarification: “You mean the Disderide house?”

Rocco Disderide was the proprietor of a grocery in the brick deli building, who moved the house from the corner to make way for that building.

Detter had told the board of the Downtown Development Authority at their last meeting, on March 3, 2010, that the advisory council was concerned about Zingerman’s plan to expand:

Zingerman’s plan generated “heated discussion” at DCAC, said Detter. The deli is located in the Old Fourth Ward historic district. He said they agreed that Zingerman’s is an essential part of the community, but that they needed to make sure there’s not a precedent set that would undermine planning. The decision needed to be oriented around the city’s planning documents: the downtown plan, the central area plan, and the historic district.

At the March 11, 2010 HDC work session, Ken Clein mentioned that some of the attendees of their March 8 open house were puzzled as to why they were keeping the 420 Detroit St. house as a part of the design.

As a designer and an architect, Clein said, he did have some concern for the judgment of history – would people look back 50 or 100 years from now and wonder why that house was incorporated into the design? “Will they look back and say, ‘What the …? Stupid preservationists!’” Patrick McCauley joked in response: “They’re going to say that anyway!”

At the March 8 open house, Paul Saginaw, a founding partner of Zingerman’s, is not explaining how he fought his way through the curds, swimming to the surface after falling into a vat of cheese. He’s explaining to a neighbor how the Zingerman’s project is going to look.

The question of how much the preservation of the 420 Detroit St. house would cost arose again, just as it had at the January work session. In the interim, some more concrete numbers had been attached to the cost of rehabilitating the house for integration into the design. The house is shown in the design to be attached to the building at the rear via a glass connector.

Bill Kinley, who owns Phoenix Contractors Inc., was at the work session on Zingerman’s behalf to provide comment on some of the construction costs. McCauley was skeptical of the costs shown for electrical upgrades to the structure, citing some familiarity with the cost of a complete electrical replacement of a house. Kinley pointed out that there’s a rule of thumb for residential rewiring of $30-$35 per opening (switch plate or plug) versus a $120-$140 rule of thumb for work to bring things up to commercial code.

The code requirements that the 420 Detroit St. house would need to meet are commercial standards.

Clein reported that the kind of work that would be necessary, and which Zingerman’s had now had estimated in more detail, included a rebuild of the foundation, new floor framing for the first floor, new joist hangers for the second floor and the addition of exterior sheathing. [The house is built with the balloon-frame construction technique.]

The additional cost of the project attributable to the rehabilitation of the 420 Detroit St. house would be between $600,000-$750,000. In terms of cost per square foot, Clein said, it came out to $572/sq. ft.  By comparison, the new construction cost of a laboratory building at the University of Michigan – the Biomedical Sciences Research Building – was $100/sq. ft. less, at $480/sq. ft., Clein said. Kinley added that the new construction of a recent project that Phoenix had completed – the Towsley Children’s Center at Forest & Willard – came in at only $300/sq. ft.

Commissioners pointed to the importance of retaining the spatial relationships between the 420 Detroit St. house and the other buildings in the compound. At their regular meeting just before the work session, they’d turned down a request to add a second story to a 1-story garage, partly on the basis of those spatial relationships.

Picking up on this need to preserve the spatial relationships, Kinley suggested that they could simply rebuild the 420 Detroit St. house anew and replace it with new construction that would have the same shape and massing of the old house. Clein pointed out to the commissioners that with all of the work that would be required on the house to bring it up to code, there would likely be little of the original “fabric” of the house remaining.

Commissioners seemed cool to the implicit pitch that the Zingerman’s team was making to go back to a scenario where both houses would be demolished. Said Jill Thacher: “We’ve been over that. I want to keep you from going back to that.”

Commissioners also took care to stress that they were really happy with the proposal that removed the 322 E. Kingsley St. house but integrated the 420 Detroit St. house into the design, characterizing it as a good compromise. “I really like this,” said McCauley, allowing that he had been “the most strident person about the preservation of the orange house.”

On the fact that Zingerman’s had taken their feedback and incorporated it into their new proposal, McCauley summed it the contrast between the HDC’s experience with some applicants: “This is much preferable to getting yelled at.”

The current schedule calls for the proposal to come before the city’s planning commission in May. In the meantime, the Zingerman’s team will meet with the city’s building inspector on code issues related to the 420 Detroit St. house.

A rough study model of the area as it currently stands. The view is from the north. Detroit Street runs from front to back. Kingsley runs left and right. The Zingerman’s Deli brick building is on the corner of Detroit and Kingsley.

A study model of the Zingerman’s expansion viewed from Detroit Street, looking east. The finger is pointing at the screening for mechanicals on the roof of the proposed new building.

The Zingerman’s Deli building viewed from Detroit Street. The 420 Detroit St. property is the orange house to the right of the brick deli building.

Nancy Rucker and Gary Bruder with the Zingerman’s team at the January 2010 HDC working session.

City planner Jill Thacher and Rick Strutz, a partner in Zingerman’s Deli, inspect the current study model at the March 11 HDC work session. In the backround is Grace Singleton, another Zingerman’s Deli partner.

Efflorescence on the spawled brick of the Zingerman’s Deli building on the wall facing Kingsley Street.