The plan covers 400-408 N. River St. and 107 E. Cross St., an historic property that has been declared ”functionally obsolete and blighted.” That qualifies the project as a brownfield under the state’s brownfield redevelopment financing act (Public Act 381), which allows the owner to receive reimbursements for eligible activities through tax increment financing (TIF). Approval also will allow the developer to apply for Michigan Business Tax Credits. The property is currently owned by Thompson Block Partners LLC, led by Stewart Beal of Beal Properties. Beal’s father, Fred Beal, attended the April 2 meeting but did not formally address the board.

Beal plans to create 16 “luxury lofts” in the structure’s second and third floors, and up to 14,000 square feet of commercial space in the remainder of the site. The project is estimated to cost about $7 million.

The resolution given initial approval by the board also ends a previous brownfield plan for part of the same site, which was approved in 2008. A fire in 2009 delayed the project. The new plan now covers the 107 E. Cross, which was not part of the original plan, and includes public infrastructure improvements, such as streetscape enhancements along North River Street.

The Washtenaw County brownfield redevelopment authority approved this plan at its March 6 meeting. Subsequently, the plan was approved by the Ypsilanti city council on March 18. The city council’s action included approving an “Obsolete Properties Rehabilitation” certificate, which freezes local millages at the current, pre-development level for 12 years. Because of that, the project’s TIF capture will apply only to the state’s school taxes.

The project can get up to $271,578 in eligible cost reimbursed over a 12-year period, for activities including brownfield plan and work plan preparation, limited building demolition, selective interior demolition, site preparation and utility work, infrastructure improvements, architectural and engineering design costs, asbestos and lead abatement, and construction oversight.

The intent of the state’s brownfield redevelopment financing is to support the redevelopment of urban sites that will increase the municipality’s tax base. Tax increment financing allows an entity to capture the difference between the taxable value before a project is undertaken, and the value of the property after it’s developed.

A public hearing on this proposal was also held at the April 2 meeting. Only one person – Tyler Weston, representing Thompson Block Partners – spoke, telling the board that it would help the project.

This brief was filed from the boardroom of the county administration building, 220 N. Main St. in Ann Arbor. A more detailed report will follow: [link]

The board approved an ordinance that designates the 1.42-acre property as an historic district under the jurisdiction of the Washtenaw County Historic District Commission. The property is owned by the Salem Area Historical Society, which uses the school as its headquarters. It would be the second historic district in Salem Township. The first one is Conant Farm on Napier Road.

The Salem Township board had granted a request to consider the property as an historic district in 2011. And at its Oct. 19, 2011 meeting, the county board voted to establish a study committee regarding the request. That report was completed this year. [.pdf of study committee report]

This brief was filed from the boardroom of the county administration building at 220 N. Main St. in Ann Arbor. A more detailed report will follow: [link]

Owners of five properties – including the University of Michigan’s Burton Memorial Tower and The Relax Station at 300 W. Huron – will be honored for rehabilitating those properties “in accordance with good preservation practice as established by the U.S. Department of the Interior.”  Owners of another 10 properties will be recognized for having preserved their property for over 10 years of continuous ownership. People in that category include councilmember Mike Anglin and his wife Kathy Clark, for the house they own at 549 S. First, and Herb David for his shop at 302 E. Liberty.

A lifetime achievement award will be give to Rosemarion Blake. The press release cites her work “to promote local history by serving on the City of Ann Arbor Historic District Commission, the Washtenaw County Historical Society, the Ann Arbor Historical Foundation, the Kempf House Board, the Cobblestone Farm Association, and many historic study committees including one which resulted in the publication of Historic Buildings, Ann Arbor.”

Nancy Deromedi and Tracy Aris will receive special merit awards for establishing the A2Modern group and website. And two entities – the UM Rackham Graduate School and Zal Gaz Grotto Club – will be given Centennial Awards for the longevity of their organizations.

The award winners were selected by the following committee: Patricia Austin, Ina Hanel-Gerdenich, Patrick McCauley, Louisa Pieper, Ellen Ramsburgh, Mark Rueter, Fran Wright, Grace Shackman, Tom Stulberg and Susan Wineburg. McCauley, Ramsburgh and Stulberg are members of the Ann Arbor historic district commission.

By way of brief recap, Heritage Row was a planned unit development for the site, which would have preserved a row of seven houses to historic district standards (in the version presented to the city council in summer 2010) and constructed three apartment buildings behind them. City Place is a “matter-of-right” project that will likely start construction in the next few weeks. [Most recent Chronicle coverage: "Chapter Added to Fifth Ave. Historic Saga"]

Why will we likely see the demolition of those seven houses instead of their preservation in some form? At the city council’s Oct. 24 meeting, Christopher Taylor (Ward 3) called it a failure by the city council to reach a compromise – on something that was less than ideal, but still reasonable.

The functioning of the city council as a body is an issue that has emerged as part of the Ward 2 city council race this year, which is being contested between independent Jane Lumm and Democratic incumbent Stephen Rapundalo. Lumm served on the council in the mid-1990s and has faced criticism from Rapundalo for being part of a group that he contends was characterized by brinksmanship and an inability to work constructively despite disagreements.

The functioning of the city council as a body is one of the themes of a email message written earlier today to members of the city council by Larry Kestenbaum. As far as I’m aware, Kestenbaum is not involved in the campaign of either Ward 2 candidate – that’s not his home ward, and he is not listed as a supporter on either of the candidates’ websites. In any case, the specific point of his email message was about the demolition of the seven houses on Fifth Avenue.

Kestenbaum is known to many in the community as the Washtenaw County clerk, an elected position. But he was not writing to the council as the clerk. He’s also an attorney who has a degree in land use and historic preservation from Cornell University. He served on Ann Arbor’s historic district commission in the 1990s. Also in that decade, he taught a course in historic preservation law at Eastern Michigan University. He lives in Ann Arbor.

Though his message to the council comes now, after the decisions on the South Fifth Avenue development seem to have finally been made, Kestenbaum did not exactly come late to the party as far as expressing his views on that area of the city. Writing on the now defunct ArborUpdate in August 2008, Kestenbaum stated: “I’d redesignate all of the former individual historic properties that were left unprotected after that bad court decision on 9/11/2001. And I think the area immediately south of William Street, along Fifth and Hamilton for example, should be a [historic] district.”

I think Kestenbaum’s recent email is unlikely to persuade any member of the council to take the action he suggests. But in my view, it’s a particularly well-written exposition of the idea that a city council is fairly judged by what it accomplishes as a body, not by the individual actions of its members. I think it’s important to preserve that exposition in The Chronicle’s archives.

It’s also important to preserve in the archives if it turns out that Kestenbaum’s message does manage to convince the council to set a process in motion to establish a historic district for the area.

And that’s why we’re sharing it with readers. Kestenbaum’s message begins after the jump.

Kestenbaum’s Email

The following email was sent to all councilmembers on Oct. 27, 2011 and forwarded to The Chronicle.

I write, not as County Clerk, but as a citizen of Ann Arbor.

My daughter is a student at Herbert M. Slauson Middle School.

Herbert M. Slauson (1853-1936), the namesake of that school, was Ann Arbor’s superintendent of schools for many years. It was under his leadership that our schools moved into the 20th century, taking on an enormously larger and more discerning population along the way.

Mr. Slauson lived for many years and died at 433 S. Fifth Avenue, one of the houses in the City Place/Heritage Row controversy. Samuel Beakes, the congressman for whom Beakes Street is named, also lived in one of those houses.

I spoke with some of the staff, students, and teachers at Slauson Middle School. They were shocked to hear that the City Council had passed up the opportunity to preserve the Slauson house for future generations.

What has happened, as I wrote in a previous email, is that the council has, by default, chosen the worst possible alternative for this site. By your action and inaction, you are leaving a scar in the middle of Ann Arbor.

I know that each of you want to take me aside to say, “Larry, I voted …” or “I did my best to …” But that is not enough.

A city council is not judged by the good intentions of its members. It is judged by what it accomplishes, or fails to accomplish, as a body.

Each one of you is well qualified to sit where you do, and most of you are my friends.

But your group process has completely failed. All I hear is mutual blame, and no investment in the group’s endeavor. Your total is much less than the sum of the parts.

I have been a defender and apologist for this council since long before any of you were members of it. I spoke up for you when your deliberations looked messy, or your priorities seemed odd. I spoke up for you when you were embarrassed about emails you exchanged. I have supported most of you in your individual campaigns.

But even I can see that difficulty with group process has gotten this body into trouble again and again. If you are worried about the council’s image, you should think back on all those events and hang your heads in shame.

Now, I understand that at a recent meeting, a proposal was made to revive the Germantown historic district, in a last-ditch effort to undo the damage you have done. I read with incredulity that some of you were angry that this was brought forward, and attempted to stop it from even being discussed.

Given that the current developer chose to enter into this project which already had a long and contentious history, I don’t see that he is owed “finality” on previous bad decisions. This is not someone who has owned the property for years and finds unexpected hurdles to development. It is entirely predictable that the city council would be interested in other development options.

Let me remind you that the city has vast powers to control development, and all kinds of tools that you’re not using here.

Here’s a very modest suggestion.

First, set out a territory that includes only the front portion of the seven properties, where the houses themselves stand. Reappoint your Germantown study committee and charge them with studying only that limited area. Since studies of the neighborhood have already been completed, it should not take long to create a recommendation. Give them a very short deadline, like 30 or 45 days, and limit the demolition moratorium to that time.

Second, while that is pending, rezone those properties to the higher density that is justified by close proximity to the transit center and the new underground parking facility.

You have ample legal justification to support both of those actions.

Under these different constraints, any reasonably creative developer ought to be able to come up with a profitable project, closely similar to the Heritage Row project, perhaps even without a PUD. And this combination of action would limit historic district protection and restriction to a specific ensemble of well-documented historic and architectural resources.

It’s time for the Ann Arbor City Council to redeem itself, to work together instead of separately, to show some creativity and compromise. Please don’t be so dug in to your past mistakes that you disdain positive outcomes in favor of scorched earth.

Larry Kestenbaum

Note: Dave Askins is editor of The Ann Arbor Chronicle. The Chronicle could not survive without regular voluntary subscriptions to support our coverage of public bodies like the Ann Arbor city council. Click this link for details: Subscribe to The Chronicle. And if you’re already supporting us, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!

In following The Chronicle’s coverage of these issues, local architect Chuck Bultman has been wrestling with the notion of where old barns fit into this preservation picture.

Every architect remembers that first time they went into a barn – the vastness of the space, the hewn beams, the light streaming through all of those gaps. For me it was in southwest Virginia, in the country going to college. I was captivated by the light and space. Outside, the farmyard also made its statement. The large red barn, along with the out-buildings made a room with a silo in it, not so much unlike a piazza with a campanile.

Barns have an interesting place in the built world. They are icons in the landscape, and as such it is easy for us all to assume a familiarity, bordering on ownership. After all, they have been there for as long as you can remember and you expect them to be there long after you are gone. We think of barns not as in the landscape. Instead, like rivers or mountains, they seem part of it – an inseparable part of the countryside that surrounds towns and cities across the country, coloring the landscape with distinct personalities. They are variously described as timeless, strong, permanent, and historic.

But barns are not part of the landscape, nor are they timeless, permanent, or historic – at least as we might commonly apply the word “historic” to an achievement, for example.

And while they may have been strong, many are now weak and vulnerable. The reality is that barns are, or at least were, working buildings owned by individuals whose intentions were to have a building where their tools and animals could be out of the weather, and where hay could be kept dry and close to the animals. Iconic pastoral landscapes were not on the agenda – livelihood or even survival was. Barns were pragmatic buildings, built to be strong because they had work to do and they had to last. Depending on the time and location, the barn was more important than the house.

Which Barns Do I Mean?

I am talking about 18th and early 19th century barns, built with mortise and tenon joinery, heavy hand-hewn beams and posts that can be 8, 10 and even 12 inches in size, wide plank floors and wide board siding.

Guenther Road – A classic arrangement of barn, silo and shade trees.

I am also talking about late 19th century barns that used finer, and more efficient, balloon-framing with rough sawn timbers. I am talking about church-like interiors with honey-brown wood, and bright red exteriors now graying from sun and age.

The old barns of southeast Michigan are like barns everywhere; many are out of work due to obsolescence or neglect or both. The size and weight of modern farm equipment and less need for a place to shelter a few animals, means these wonderful old structures have less work to do on the farm. The big farms of today have fewer farmers who are doing a much smaller range of things. The old wood barn doesn’t fit into the plan. And depending on the location, the barns are being left as orphans in the landscape slowly deteriorating as the elements take their toll.

Many of the barns in our area are elegant buildings, sited well in the landscape, with craftsmanship that would be impossible to reproduce. Regardless, most of these old buildings will not meet the criteria to be protected as historically significant; or landmark buildings. Even if a barn was built by someone who may now lend an adjacent road its name, generally no one of enough importance owned the barn that would allow it to be considered a landmark. Likewise, it is not common to hear that an important event ever occurred on the site which could classify it as a landmark.

Dancer Road – A well maintained, and presumably, well used gable barn.

Finally – as I paraphrase the Department of the Interior’s standards for determining whether a building is historically significant – is the architecture. And again, it is rare that a barn will be so distinguished in its appearance or construction to warrant it being declared a landmark. These were utilitarian structures that we now prize for their subliminal beauty.

To put this in perspective, a recent USDA Census of Agriculture lists over 21,000 barns in Michigan built before 1960. However the state’s Historic Preservation Office’s website lists only 17 landmark barns in the state. That means less than .08% of all of the barns in the state are protected as historic landmarks.

Checking for “farms” on SHPO’s website produces only 58 additional listings, ostensibly to single out the house. What about the rest of the barns? Certainly some of the remaining 99.9% of the barns in the state, if evaluated, may be considered historically significant; the vast majority, however, will not. The problem is this: Within that vast majority there are many fine barns.

Historic Districts for Barns

Historic districts are used to protect groups of buildings, or neighborhoods. Historic districts are an effective way to declare that the structures within the district add up to more than the sum of their parts. In some historic districts it is tough to single out any one outstanding building. The district’s character sometimes stems from the collection of buildings as a whole, along with the landscape and site, each contributing to the significance of the place.

To protect barns with an historic district, particularly in Washtenaw County, would be cumbersome, as there is such a wide range of barns, in varying conditions, spread over a wide landscape. Our barns are not in one particular section of the county. They had been pretty evenly spread out and are now mixed in among many other kinds of non-contributing buildings – as farmland has been subdivided and other buildings have been built. You can find barns in the backyards of tract houses, on the edges of subdivisions, behind commercial buildings, or standing alone as the sole survivor of a long-gone farmstead.

“Historic” Barns

Reading about old barns you will typically find them referred to as “historic.” What is signified by calling a barn “historic”? An historic barn is one that is more than 50 years old, nothing more, nothing less. Attaching the word “historic” does not imply any other significance other than it is age. By that standard much of Ann Arbor is historic, but we rarely refer to historic office buildings, or historic warehouses, or historic shopping centers just because they are 50 years old.

Dixboro & Five Mile Roads – A less maintained and un-used, gable barn.

Conversely, when we make reference to historic events or speeches or other happenings, we are typically not just noting their age; something important is always implied. This is not the case when you read “historic barn” and it’s due to this confusion that I typically refer to a barn as “old.”

With this understanding, all of the 21,000 barns in the state that are older than 50 years can be called historic – regardless of their construction, location, condition, or visual appeal. Less than .1% of these barns are landmark buildings, meaning they have an historic significance that distinguishes them from other barns, and that the state or federal government has determined that they are an asset to all of us and deserve to be protected.

The U.S. Department of the Interior, the government agency authorized by the National Historic Preservation Act of 1966, published a series of briefs collectively called “The Preservation of Historic Architecture” [emphasis by USDOI]. Brief 20 is titled “The Preservation of Historic Barns.”

In this Brief the plight of the roughly 665,000 barns found in all 50 states is characterized as follows:

… historic barns are threatened by many factors. On farmland near cities, barns are often seen only in decay, as land is removed from active agricultural use. In some regions, barns are dismantled for lumber, their beams sold for reuse in living rooms. Barn raisings have given way to barn razings. Further threats to historic barns and other farm structures are posed by changes in farm technology, involving much larger machines and production facilities, and changes in the overall farm economy, including increasing farm size and declining rural populations.

Brief 20 offers this suggestion:

Yet historic barns can be refitted for continued use in agriculture, often at great savings over the cost of new buildings. This Brief encourages the preservation of historic barns and other agricultural structures by encouraging their maintenance and use as agricultural buildings, and by advancing their sensitive rehabilitation for new uses when their historic use is no longer feasible.

Michigan Avenue – This barn is but one small part of a 148 acre parcel for sale today. Even in this condition the frame may still be salvageable.

The USDOI can encourage maintenance, but the record speaks for itself. More and more old barns are in disrepair, fewer and fewer are serving farms, and many are abandoned. We all know of at least one barn that is falling down but might be hard pressed to single out one that has been restored.

Two Threats to Barns

There are two major threats to barns.

The first threat is internal; the buildings are old and typically need expensive maintenance. In most cases a barn is a fairly big building, meaning when it needs materials like roofing – a typical maintenance item – it needs a lot of it. And, as a barn, if it leaks a little, no one complains. Roof repair is often deferred when money is tight; and on a farm, money is always tight.

A barn’s foundation is also a universal weak point. Foundations were made of field stones, mortared together, but after more than 100 years the mortar decays and chips out. Water then migrates through, causing more mortar to fail. And then stones fall. Soon that barn is teetering on only a partial base. Barns are strong, but as the foundation moves out from under it, many bad things happen. And these problems are expensive to repair. With neglect comes decay; the boards rot and the roof sags. The fatal blow, though, may be when you get your insurance bill and find that it is much higher than you expect, because your insurance company has had bad experiences with barns: “Someone could be seriously injured in there.” That is where many barn owners draw the line, and barns get removed.

Michigan Avenue – The roof of the gable barn while rusty still appears to be keeping the rain out. The foundation however is beginning to lose its battle; sections have fallen away and the corner closest to the gambrel barn is no longer under its corner post at all.

It is here that I would specifically quibble with the USDOI’s notion that barns “can be refitted for continued use in agriculture, often at great savings over the cost of new buildings.” When presented with the actual cost to retrofit a barn many people look to alternatives. One of the choices is demolition.

The second threat is external. Many barns were built very close to the road that served the farm, for obvious reasons. Clustered with other farm buildings, farmers wanted easy road access to get to their fields, other farms, and to town.

Dexter-Ann Arbor Road – A gable barn about 30 feet from the asphalt. This barn might even be in the road easement.

But these roads were narrow dirt roads, and if you drive down some that have yet to be “improved” you’ll see what I mean. Dancer, Guenther, Joy, Feldcamp, Macon and Willow, just to name a few, are lined with barns just feet from the road. However because these roads are dirt, it is hard to drive much faster than a horse can trot.

And somehow a slow car does not seem to disrupt the 19th century feeling of the place.

Improved roads, however, are another story. Scio Church, North Territorial, Island Lake, Dexter and Jackson, among others, also have barns and farm buildings within feet of the road. And cars go by at 50 to 70 mph. At those speeds, most drivers don’t even notice the barn. However from inside the barn, a 50-mph car whizzing by is like a rocket.

Up until about 2005 there were two old barns very close to Jackson Road, on the Terumo property. Relics of a past farm, they crowded the newly improved boulevard. These barns were of no use to Terumo and were dismantled. As we press further and further out into the countryside and widen and improve the roads, more barns will suffer the same fate.

What Can Become of an Old Barn?

Owning an old barn is as much a liability, as an asset; and occasionally the liability outweighs the benefit. When this is the case many look to change or as the USDOI rightly encourages, “… by advancing their sensitive rehabilitation for new uses when their historic use is no longer feasible.”

While there is no official policy or approach to what might be considered a “sensitive rehabilitation,” it is widely believed that a barn should be preserved, based on three descending orders of priority. The first is to preserve them in place. The second is to allow them to be moved and re-erected. And the third is to salvage the materials and reuse them to build something else.

Michigan Avenue – Three barns a mere 30 feet from Michigan Ave.

The wild card for the first two is: What is the function for this building? If someone is going to invest in restoring a barn, or moving and restoring a barn, what are they going to do with it? It might seem best to let them remain barns, but few will pay the price to wind up with just a barn in the end. That opens the door to consider alternative uses.

Restoring the barn in place rarely makes sense. Most of the time, the barn’s foundation is too far gone, and the cost to undertake work under the barn is very high. Even if the foundation is found to be sound, the barn’s siting is rarely ideal. As some of the photos published with this piece illustrate, a barn sitting on the side of a road may not prove to be the best place to invest your money. Likewise, a barn off in the middle of a cornfield might make an equally poor investment. Barns were not located to be houses or offices, so in many instances the desire to move the barn is the first decision to be confirmed.

Moving an old barn does not preserve whatever historic relationship it might have had to its site, but then neither does letting it rot and turn to dust. Given those choices – and in many instances these are the only choices – I would opt for moving the barn every time. At least a barn that has been moved can be enjoyed and would contribute to the architecture of its new use. Also, barns are filthy, and sometimes the beams and posts have rot or damage. Dismantling the barn gives you the opportunity to clean, inspect, and restore the barn before re-building on a new foundation – which can now be located anywhere.

A hand-hewn barn frame that utilizes mortise and tenon joinery. Pegs are driven through the tenons locking the joints in place. Old barn frames would have had no fasteners other than pegs.

The last in the descending orders of priority is simply to take down the barns and salvage their materials. In this scenario, the parts of the barn – the planks, the siding, the beams – are sold at will.

The most lamented aspect of this approach, though, is the disregard for the barn’s timber frame with all of its joinery. The beams and posts are basically treated as raw materials again. Usually the beams are just chain-sawed apart, discarding the joints as unwanted knots, and their four faces are sliced off to make old-looking flooring.

While I can see this approach making some sense for small quantities of material, or maybe for partially collapsed barns, it pains me to hear that a viable barn has been turned into boards. It feels like a step backward.

Old barns are both beauty and beast. While they are extensively photographed to capture their aged and worn materials, it is these old materials that make a barn conversion difficult to comprehend and maybe even scary to some. The wood is old, rotten, cracked, and dirty.

You must be crazy to begin with a barn. But the massive beams are also rich with texture from being hewn by hand. They have a warm golden tone that only time can produce. The sheathing boards exposed to the weather read like driftwood or Van Gogh’s “Starry Night.” Yes, these barns are challenging to work with but the reward is well worth the effort.

Serendipitous barn art

Done sensitively, an old barn can find new life mixed with new materials through a deft compromise of form, function and fabric and can be the center of really exciting “new” architecture. Whether your goal is to have an old barn within your house, or just to have the warmth and character of the hewn beams, or even to keep old material out of landfills, an old barn can provide a great starting point.

A striking example of mixing new and old buildings is Camden Yards in Baltimore. In the 1980s, Baltimore’s downtown was backdropped by what was possibly the largest brick building on the east coast– the Baltimore and Ohio Warehouse. This building is eight stories high and over 1,000 feet long, but was abandoned. Roughly 80 years old at the time, the warehouse was both an icon and an eyesore. What do you do with 400,000 square feet of ruin? Some wanted to simply tear it down but instead it was given a new life as a major component to the new ball field. This warehouse is the windowed wall you see behind right field – it has been rehabilitated and adapted as part of the new ball field. Camden Yards’ architectural success launched a series of retro ball fields that embraced the warmth and scale of older ball parks.

Similarly, barns – these wonderful old structures – can be salvaged, moved and re-erected, insulated and converted to be houses, offices, studios, etc. While not officially “preservation,” barns can have a new life adapted to a new use. And the charm and craftsmanship of the old barn timbers can become the focal point for new architecture. The spaces can soar to the rafters as some barns do; or lofts can be built to make the spaces more intimate, as other barns did; or a combination of both. The barns can have wood boards on the frame and therefore look much like the barn originally did, or painted materials to introduce color and be a little brighter.

A salvaged barn frame being rebuilt to become a house.

Barns, being industrial buildings, seem comfortable with industrial elements. Exposed ductwork and metal railings have been successfully integrated into barn projects. From my perspective a barn can put up with a lot.

But in David Larkin’ s book, “Barn: The Art of a Working Building,” Mr. Larkin describes a renovation of dubious design: “Sad though it may be to see a fine Bucks County stone barn falling into ruin because of neglect, such quiet, gradual deterioration might seem a kinder fate than the rude transformation imposed on another small Pennsylvania barn.”

The message is clear: A barn is a simple building, and one must tread lightly and listen to what the barn wants, when one is trying to coax a new use out of the old structure. Mr. Larkin warns that architects are, “… too often prone to impose their own clever devises …” Indeed, it is easy to let the heart and soul of the original barn slip away.

A Tale of Two Barns: Not Mine or Yours

Saving barns can be complicated, because they are not my barns. On Scio Church Road there is a pair of barns built right next to each other. Now, I have seen multiple barns on one site before, but normally they are built over time. These two however appear to be built at the same time; they are twins, but they are not kits. They are two hand-built, hewn frames – with posts and beams a little bigger than I have come to expect in Michigan, which is a good thing. They are also in very good shape. One of the barns was awkwardly renovated to be a house, but I think a fair number of the timbers could still be salvaged, possibly the whole frame. The other barn has not been touched. Its foundation is in great shape and it is dry, or at least it was when I saw it last.

Scio Church Road – The left barn has been renovated to be a house. The right barn has not been renovated.

About two years ago, I was asked by a builder to walk these two barns for the new owner – to assess their condition and to discuss how [or was it if?] they could be used. I made my comments, which were all positive, and went back to my other work. Over the coming months I tried to see if anything was going to happen with the barns, but got word that with the market softening the owner was not interested in doing anything at the time.

Just this summer, though, while driving past, I noticed a hole in the roof of one of the barns. And I know that a barn can decay very quickly, if that kind of thing is not dealt with. So I tried to reach the owners to let them know that their asset is at risk. And so far, I have not heard back – maybe something is being planned and workers are lining up to repair it or salvage it, but I do not know, and it is not for me to decide.

You see, whatever may be possible with an old barn is only possible with the support and the ability of the owner. If a barn falls into disrepair, and it goes beyond a certain point, it becomes economically unfeasible to restore. Those of us who do this restoration work all have heard stories: People inquire about having their barn restored or salvaged after particularly bad winters or after it has been open to the rain for a few seasons. Usually the call comes after owners notice the ridge sagging or worse. Many times these calls are too late, because as you might imagine, once a building moves far enough to be noticed by a non-builder type, it usually has moved too far.

Barns do not fall apart nicely – everything breaks and cracks, leaving little to salvage. Paying attention to the building and maintaining it is essential to preserving the barn’s frame but not everyone can, or does, keep the building up.

There is a truth that some like to reveal with a question: “If you can pick up a calf today, can you pick it up tomorrow?” It is easy to want to answer yes, because the daily growth of a cow goes unnoticed. But a cow can gain pounds in a day and, of course, the day will come when the cow can’t be lifted by the strongest of men. These two barns are still apparently fine and strong, but with the roof open, it is not possible to know how much they weaken every day. Like the growing cow, if nothing is done, the barn will continue its descent, and there will be a day when the barn will yield. Right now, two strong, timeless, and beautiful barns sit by the side of the road – their fate wholly in someone else’s hands.

North Territorial Road (all photographs are by the author)

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About the author: Chuck Bultman is the principal at Charles Bultman, architect. His practice has included integrating barns and other salvaged materials into buildings. Bultman has worked with over thirty barns converting them to new uses, many in new locations.

The plain brick wall on the Michigan Theater Building on East Liberty in downtown Ann Arbor – rising up behind the storefronts – will be the site of a solar panel installation funded by XSeed Energy, a program of the Clean Energy Coalition and the city of Ann Arbor. (Photos by Mary Morgan.)

As a project manager for the Ypsilanti-based Clean Energy Coalition, Bona specializes in this art of saving energy. She is quick to add, however, that “my goal isn’t to make people sacrifice and suffer. It’s to make them see opportunities where life can be better and, oh, by the way, it uses a lot less energy.”

But it’s not just about using less energy. Bona and others in the Ann Arbor area are involved with projects that focus on generating alternative energy, too – in particular, solar power. Prompted in part by the lure of tax credits and available state and federal funding, an increasing number of efforts are underway to install solar panels on individual residences, businesses, nonprofits and schools – including, as one recent example, the Rudolf Steiner School of Ann Arbor.

And in mid-August, the Ann Arbor Historic District Commission unanimously approved two solar installation projects in historic districts, one for a private home on South Seventh Street, and another at the Michigan Theater. With some citing concern over aesthetics, commissioners acknowledged that they’ll likely see more of these requests in the future, and discussed the need to develop guidelines for solar installations within the city’s historic districts.

City Solar Initiatives: XSeed Energy

The Michigan Theater solar project is being funded by an especially ambitious program that Bona is leading, called XSeed Energy. The program, part of the Clean Energy Coalition (CEC), aims at installing solar projects and encouraging “community-supported local energy,” Bona says, “which means that whether it’s solar or wind or geothermal, it’s locally-sourced energy versus having coal shipped from West Virginia.”

XSeed evolved from a partnership between CEC and the city of Ann Arbor, through the U.S. Dept. of Energy’s Solar America Cities program. In 2007, the U.S. Dept. of Energy declared Ann Arbor one of 25 Solar America Cities. As a result, the city received $632,000 in funds dedicated to advancing solar energy. Since then, the city has published a comprehensive report titled “Solar Ann Arbor: A Plan for Action” – a 114-page document that Bona strongly recommends reading. XSeed was launched to help implement the plan. [.pdf of the plan's executive summary – the full document is available on the city's website.]

Andrew Brix, the city’s energy programs manager, worked closely with the consultant who created the plan, and says of its purpose: “It helps to remove or reduce the barriers associated with solar energy, such as cost, and tries to allow [solar energy] to become a mainstream production of energy.” Bona adds that the plan details the “potential for Ann Arbor, as a city, to be entirely powered by locally-generated power.”

Solar panels are installed on the shelter roof of the Ann Arbor Farmers Market.

One of the city’s already-installed solar projects is a 10-kilowatt solar array at the Ann Arbor Farmer’s Market, put in place in 2008 with money from the Dept. of Energy along with matching funds from the Ann Arbor Downtown Development Authority. Not only does the system advance the goal of using solar energy, it also tackles another facet of the city’s solar plan: awareness. The strategically placed array is easily within view, and – given the popularity of the farmer’s market – is guaranteed many viewers.

Public awareness is key, says Bona, who is also a member of the city’s planning commission: “The goal of XSeed is two-fold: one is to implement the installation of solar panels in lots of different locations – starting with nonprofits. The second piece is to make the general public aware of the installation, aware of how it works, have read-outs where people can see how much power it’s generating.”

The city is already providing information for property owners to raise awareness about the potential of solar energy. Wayne Appleyard, chairman of the city’s energy commission, explains that city staff, with the help of some University of Michigan interns, developed a system that estimates how much energy each residential home could generate via solar power in Ann Arbor.

Residents can use that system by visiting the city’s website and entering their address. They’ll then see a list of tabs, including one that’s labeled “Solar Potential.” Clicking on that tab generates a listing that looks like this:

Address: 101 Your Street
Full Zip Code: 48103-4357
Solar Potential: Excellent
Solar Hot Water Candidate: Yes
Roof Size:  756 sq. ft.
Estimated solar PV potential: 0.55 - 1.09 KW
Estimated electricity produced: 717.3 - 1434.61 KWh/yr
Estimated electricity savings: 304.9 - 383.81 per year
Estimated greenhouse gas savings: 1.65 - 2.36 tonnes CO2/yr

-

Appleyard, who has been a member of the energy commission for over 10 years and chair for the past year, cautions that the information is “an approximation.” But it’s useful as a guide for homeowners who are interested in the solar-energy option. Encouraging the use of residential solar energy is an explicit city goal, as outlined in its effort to put solar installations on 5,000 roofs by 2015, primarily for solar hot water systems.

Working Within a Historic District

While the city has a history of advocating for solar energy, it’s not common for solar projects to be located within the city’s historic districts. But during the Historic District Commission’s Aug. 12 meeting, the group unanimously approved two proposed solar initiatives: one for a Seventh Street residential home, and one for the Michigan Theater that’s funded by XSeed Energy. When completed, it will be the most high-profile solar project in the city.

In early 2010, XSeed began an application process for a solar panel project. The nonprofit Michigan Theater had the most potential of the applicants for two reasons, Bona explained. First, the project at the Michigan Theater offers an additional aspect of awareness because of the theater’s downtown location and because the system, once installed, would be easily visible from the street – the solar array will be installed on the south-facing wall of the theater, rather than on the out-of-sight roof.

As another factor in choosing Michigan Theater, Bona also cites the willingness of the theater’s staff – including executive director Russ Collins – to work with XSeed and fundraise, bringing in money to fund future projects.

Along with installing the solar system, XSeed required the Michigan Theater to reduce its energy use by 5%. Including the 5% that the solar array will offset from the theater’s electrical use, the entire project will reduce the theater’s need for fuel-based electricity by 10%.

“The goal with solar is not to replace the electricity we’re using today, but to step back and reduce the wasted energy,” says Bona, in explaining XSeed’s requirement for separate conservation measures. “Then we won’t need as much solar to make up the difference.” It’s an approach akin to avoiding the food processor while making pesto.

While the Michigan Theater was the first of the applicants selected by XSeed, Bona says they intend to do more projects.

Deliberations at the HDC: Questions, Concerns – and Approval

At their Aug. 12 meeting, historic district commissioners spent about 90 minutes discussing the two solar proposals. The first was for a home at 553 S. Seventh St., just north of West Madison in the Old West Side historic district. Homeowner Chris Hewett was asking for a “certificate of appropriateness,” which would allow him to proceed on installing solar panels on the roof of his 19th-century house.

The house at 553 S. Seventh St., with an indication of one option for installing solar panels on the roof. This image was included in the Aug. 12 meeting packet for the Ann Arbor Historic District Commission.

At the request of the city’s planning staff, he presented three configurations for installing the panels – commissioners were asked to weigh in on which of the three options would be most preferable, from their perspective.

Hewett told commissioners that he and his wife bought the house about a year ago, and were planning to make it more sustainable and energy efficient, while at the same time restoring its historical features. He said they were trying to take advantage of the credits available through DTE and federal programs, which would make the project financially feasible.

He said they use about 3 kilowatts of energy each month, and that the solar panels would likely generate about 1 kilowatt. In the future, they might return to the HDC to seek permission to install additional panels, he said.

Some commissioners posed questions about structural issues related to placing the array of 3-feet-by-5-feet panels on the roof. Kristina Glusac stated repeatedly that she felt there was insufficient information provided about the structure of the house and how the panels would be installed. Lesa Rozmarek was concerned about the possibility of ice damming.

Some of the commissioners were concerned about aesthetics, and initially wanted to choose an option that would minimize the visual impact of the panels. That issue was reflected in the staff report, presented by historic preservation coordinator Jill Thacher:

Staff’s initial thoughts on solar panels are that they are an acceptable, reversible addition to residential structures in historic districts if the panels a) match the color of the roof, b) match the angle of the roof and do not project more than eight inches above it, and c) do not cover more than 30% of the roof surface on which they are installed if any part of the panel is visible from a street or sidewalk, and most importantly, d) do not detract from the historic character of the house or destroy, obscure, or damage character-defining features.

During the time available for public comment, several people spoke – including many who were attending the meeting in connection with the Michigan Theater project, and who responded to some of the concerns raised by commissioners.

Saying he was a huge advocate of historic preservation, Matt Grocoff – founder of Greenovation TV – noted that he lived down the street from Hewett, and that he intends to make his home the oldest in America to achieve net-zero energy. While he was excited by the discussion, he said the commissioners were asking the wrong questions about the aesthetics. “The real question is what point is there in preserving our history if we don’t protect our future?” He urged commissioners to set a precedent by unanimously approving the installation of solar panels.

Clean Energy Coalition project managers Dave Strenski and Christina Snyder both spoke to the commission, addressing some of the technical concerns. Both have worked on other solar panel installations, and said they didn’t have problems with drainage or ice damming. Strenski, who volunteers with Solar Ypsi and did the installation of panels at the Ypsilanti city hall, said it was dumb to install the panels in a way that wouldn’t yield the highest efficiency. Shading was another factor to consider, he said – if any part of the array is in shade, it affects the performance of the entire system.

When asked by commissioner Tom Stulberg for his thoughts on the question of aesthetics, Strenski said aesthetics is in the eye of the beholder. Most people who install solar panels are proud of them and want them to be visible, he said, but energy efficiency – not aesthetics – should be the main factor.

Later in the meeting, HDC chair Ellen Ramsburgh said it was important for the commission to weigh in on placement. Part of their job was to make sure the additions didn’t detract from the historic character of the house, she said, and a roof is a very visible part of that. In general, she said, she preferred a less-distracting placement of the panels.

The fact that the solar panels could be removed was compelling for several commissioners, and some mentioned that they had a steep learning curve on this issue. But despite some concerns, the project received unanimous support from commissioners, giving the homeowner the option of choosing which solar array would work best for the site.

Next up was the Michigan Theater project on East Liberty, an installation on the south-facing wall of the main theater building, which is located in the State Street historic district. Though the wall is set back 58 feet from the front of the shops along East Liberty, the panels will be visible from the street.

The staff report recommended approval of the project, but again brought up aesthetic issues. Of particular concern to the XSeed project team was a possible restriction on color. From the staff report:

Staff supports the proposal if the panels and their supporting armature are a neutral, and preferably matte, brown, gray, or black color when feasible. Very conspicuous panels, such as bright blue ones, and bare metal frame finishes should be avoided if they detract from character-defining features of the structure and neighboring ones.

In addressing the commission, Bonnie Bona noted that the color of the panels is determined by the technology that’s used to create them, and that she would not want to restrict their ability to select the appropriate technology for the project. They plan to put the project out to bid, and would be open to new technologies, she said.

Mark Ritz, a volunteer with the Clean Energy Coalition who’s working with the XSeed program, elaborated on that topic, saying he’d researched the different types of solar panels available and that almost without exception, the panels are dark blue, mounted on silver anodized aluminum frames. The panel absorbs light and creates electricity from the light it absorbs, he explained. The most efficient wavelengths of light are the longer ones, he added, so what’s reflected are the shorter wavelengths – the dark blue and violet, which are not as efficient in being converted to electricity. By imposing a color restriction, he said, it would restrict their choices immensely in selecting the best technology for this site.

Both Snyder and Strenski spoke again in support of the project. Snyder noted that the panels that commissioners might find the most “distracting” from an aesthetic view – made of polycrystalline silicon, with the crystals showing – are those she finds most beautiful. “I could stand and look at them for hours,” she said. “It’s almost like looking at fire or moving water.”

Strenski encouraged commissioners to check out seminars offered by the Great Lakes Renewable Energy Association, based near Lansing. In addition to solar energy, the group provides training for wind energy too. “Wind energy’s going to be next on your list here,” Strenski said.

Andrew Brix, who’s a member of the XSeed advisory board, also addressed the commission. He mentioned that the city council approved a “green energy challenge” in 2006, with the goal of achieving 20% renewable energy use by 2015. He said he hoped the HDC would support the project and that they could continue this conversation about solar installations in historic districts, finding ways to address both the needs of historic preservation and the energy goals of the city.

During the commission’s deliberations, Lesa Rozmarek pointed out that the panels are being deliberately placed in a location that’s very visible. She said she didn’t have a problem with it in this case, but it’s something the commission should be aware of.

Diane Giannola said that a major point with this project is that the panels will be placed on a plain brick wall, and won’t interfere with the building’s historic front. She said she liked the educational aspect of the project, too.

The commissioners voted unanimously to issue a certificate of appropriateness for the Michigan Theater solar installation.

Coda to HDC Approval

In a follow-up email, Bona told The Chronicle that XSeed has budgeted about $30,000 for the Michigan Theater installation – $10,000 per kilowatt for a 3 kilowatt array. Bids are expected back from solar installers by the end of September. For other recent projects, prices have been in the range of $7,000 to $9,000 per kilowatt.

They expect to get about $15,000 from the DTE SolarCurrents program. The program allows the energy utility to buy renewable energy credits (RECs) from the state – credits that would otherwise go to homeowners or businesses. This helps the utility meet Michigan’s renewable energy standard, which was established by Public Act 295. The standard is a state mandate for Michigan electric utilities to generate 10% of their power from renewable resources by 2015.

In addition, XSeed is using the Michigan Theater installation to raise funds from corporate sponsorships, private donations and grants for public awareness efforts and future projects. That funding, in turn, will allow XSeed to provide incentives for private projects at residences, businesses and organizations. XSeed will also be pursuing public installations to provide power to residents, businesses, and organizations that don’t have adequate solar access on their own sites.

The focus on solar power, Bona wrote, is because of attractive incentives that are currently available to offset the cost of installation. In the future, XSeed will be looking at other renewable energy sources, too.

DTE, State Incentives Help Rudolf Steiner School

Yet another solar installation is coming in October – this one at the Rudolf Steiner School, on the campus of its high school on Pontiac Trail. The school received funding through two grants in June of this year: one from the Michigan Renewable Schools Program, which is funded by the Michigan Public Service Commission and administered by Energy Works Michigan; and one from DTE through its SolarCurrents program.

Rudolf Steiner School will receive $1,000 annually, says Sandra Greenstone, the school’s administrator, and is expected to save another $1,000 in electricity costs – about 12,000 kilowatt hours’ worth. In addition to a solar installation, the school will be making energy-saving changes based on results of an energy audit funded by the Michigan Renewable Schools Program, such as replacing windows and using energy-efficient light bulbs and fixtures.

Appleyard, of the city’s energy commission, considers the importance of the DTE program to be paramount in the accessibility of solar-powered systems. “It makes pretty good sense,” he says. “Certainly with DTE’s [SolarCurrents] program, photovoltaic arrays are a relatively secure investment in these times of uncertainty … since you’re signing a 20-year contract with DTE that basically guarantees that they’re going to pay you upfront money and then pay you every month for whatever you generate.”

Though DTE’s SolarCurrents program is viewed as progressive, hopes are set still higher for the possibility of incentives by the city, if pending state legislation is passed.

Andrew Brix, the city’s energy programs manager, believes the single most helpful piece of legislation is PACE (Property Assessed Clean Energy). Through the program, the city would use municipal bonds  to fund the upfront installation of a solar system to a resident’s home. The resident would then pay the city through property taxes in the coming years – probably over 15 to 20 years.

Wayne Appleyard and Bonnie Bona at a joint working session of the Ann Arbor planning commission, energy commission and environmental commission in April 2010. Appleyard chairs the energy commission. At the time, Bona was chair of the planning commission. (Chronicle file photo)

“This is incredibly helpful,” says Brix, “because most people don’t have the money for solar initiatives. It’s been passed in the House and is waiting to be reviewed in the Senate.” If legislation is approved, Brix says the city is “poised and ready” to run a PACE program.

The issue of PACE legislation came up during an April 13, 2010 joint working session of the Ann Arbor planning commission, energy commission and environmental commission, focused on the topic of sustainability and organized in part by Bona, who served as planning commission chair at the time. Matt Naud, the city’s environmental coordinator, explained some of the issues related to implementing a PACE program. From Chronicle coverage:

The program would be voluntary. Homeowners would first get an energy audit to find out if they’ve already taken initial steps on their own – for example, Naud said, you wouldn’t want to install solar power if you haven’t sufficiently caulked around your windows. You’d sign a contract with the city, which Naud said would microfinance the improvements. To repay the loan, homeowners would get an additional assessment on their property tax bills.

The risk is low, Naud said, as long as they structure the program in the right way – for example, not lending to people who are upside down on their mortgages, owing more than the home is worth. There’s already a system in place to make payments – the tax bills – and the improvements would add value to the property. The city has set aside $400,000 from a federal Energy Efficiency and Conservation Block Grant it received, to use as a loan loss reserve fund. If the enabling legislation is passed, the city would be able to put together a package that would work, Naud said.

[Link to a September 2009 article about the PACE program, written by Eric Jamison, a law student at Wayne State University Law School who's working with the Great Lakes Environmental Law Center to develop the program in Michigan. More information is also available on the PACE Now website. Previous Chronicle coverage related to PACE: "Special District Might Fund Energy Program"]

Local banks will likely be involved in the effort as well – the Bank of Ann Arbor, for example, has been talking with the city for several months about how a “green lending” program might be structured.

Appleyard says that the DTE program certainly changed the economics of solar installation, but he hopes a feed-in tariff law will be enacted, too. He contends that it’s a case of politicians saying they want to do it and then having the political will to back it up. “It’s just a question of how long we wait and how many more droughts we have and sea level rises and all those other things that are happening – climate change – before we go ahead and decide that we have to do something.”

Hayley Byrnes is an intern with The Ann Arbor Chronicle. Chronicle Publisher Mary Morgan contributed to this report.

Developer Alex de Parry addresses the Ann Arbor city council in support of the Heritage Row project at council's June 21 meeting. (Photos by the writer.)

The number of houses to be renovated – called the “Seven Sisters” by some in the community who support their preservation – matched the number of votes the project received Monday night from the 11-member city council.

While that is a majority, the seven votes in favor of Heritage Row did not meet the eight-vote minimum that was required. The super-majority requirement came as a result of a protest petition that was successfully filed on the same day as the council’s last meeting, June 7. On that occasion, the council first considered this newest iteration of the project, but postponed it until their June 21 meeting.

The project rejected by the council on Monday in its 7-4 vote was a planned unit development (PUD), which would have required the city to amend its zoning. That leaves in play an already-approved earlier project at the same location, called City Place. City Place was authorized by the council last year as a “matter of right” (MOR) project – because it was judged to meet all applicable codes and zoning regulations.

The City Place (MOR) would demolish the seven houses and replace them with two apartment buildings separated by a parking lot. It’s a project that would be almost certainly denied by the city’s historic district commission – if a historic district were established in the area, as a study committee has recently recommended. The council is expected to make its final vote on the historic district at its July 6 meeting.

But the council gave its initial consideration to establishment of that historic district on Monday night. It’s more customary for councilmembers to vote for proposals on their first reading – to advance a proposal to a public hearing – even if they ultimately plan to vote against it. But Monday’s meeting saw three councilmembers already voting against establishing the district.

The council’s meeting also started off with the theme of historic preservation, as the city’s historic district commission presented its annual preservation awards.

In other business, the council gave a short extension to developer Village Green, which has an option-to-purchase agreement with the city for the city-owned parcel at First and Washington streets. The time for the extension is to be used to work with the city planning staff to put together milestones that need to be met.

Heritage Row

Heritage Row is a residential project proposed for South Fifth Avenue that would renovate seven houses and construct three new 3.5-story apartment buildings behind those houses, with an underground parking garage. In total, there would be a maximum 82 apartments with no more than 163 bedrooms. The public hearings on both the site plan and the rezoning were continued from the council’s previous meeting on June 7. [Chronicle coverage of that meeting: "Heritage Row Likely to Need Super-Majority"]

Heritage Row: Public Hearings

Speaking during public commentary general time, Shirley Zempel began with a simple, “Hello, Mayor, hello council!” She told them she was back before them because once again the council was being asked to approve a construction project that was too big for the neighborhood. Alluding to the long timeline the project has traced in various iterations, Zempel said she wished the issue could be finally settled. She said she’d visited with developer Alex de Parry and he’d showed them some things he was going to change. But the problem, to her, is the increased density – traffic is going to be “messed up,” she said. She is skeptical, she said, that the tenants of the project would really ride the bus or use Zipcars – the tenants of the new project would have cars, she said.

Thomas Partridge noted that he’d stated his position on similar resolutions many times in the past – all rezoning requests need to require a significant amount of the housing to be affordable. The proposal before the council that night, Partridge said, failed to meet that standard and should be taken back to the drawing board.

Tom Luczak referred to Partridge’s speaking turn during general public commentary reserved time, when Partridge had measured time based on the start of the Obama administration. Luczak said it was possible to measure time based on the start of the Heritage Row project. “Let’s throw the dirt on this thing,” Luczak said. He told the council he wanted to make a few points in defense of zoning. He took a walk from the south of downtown through the downtown to the area north of downtown, he said, and it was striking that there was a clear difference as he walked through these areas.

Zoning, Luczak said, reflected the collective value judgment of how we want to live. The city council is the final adjudicator of a PUD proposal like Heritage Row, which entails a rezoning. It’s only justified, he said, if the value outweighs the detriment to the surrounding neighbors. Density could be achieved on any number of other parcels around town, he said – 40 paces away in the actual downtown, not just near the downtown. For example, he said, Zaragon Place 2 is a project he supports, be cause it’s located in the downtown, where it belongs. [Zaragon Place 2 is a 14-story apartment building proposed for the southeast corner of Thompson and William streets, and was recently approved by the city planning commission.]

Patricia Lesko introduced herself as a candidate for mayor. She said she wanted to talk to the council about zoning. She said she had been riding her bike home and that a neighbor had flagged her down who lived in the area of the location where the Near North development is being proposed. The neighbors had not so much agreed to support that development, she contended, as given up on believing local government would enforce its own zoning. They had given up on the people they looked to to enforce what should be clear-cut zoning rules. Projects like Near North, The Moravian, and Heritage Row, she said, were similar in that they reflected zoning by exception – we were intruding into those neighborhoods and it was upsetting, she said.

The neighbor Lesko said she’d spoken with asked, Why buy a house in a neighborhood that abuts downtown, if we can’t rely on local government to enforce zoning? If we want to have greater density, Lesko continued, we need to have an open and frank discussion about dense development in “fringe neighborhoods.” She said that the discussion should not be about NIMBYs, which would make it personal, but rather about zoning. Planned unit developments are zoning by exception and by favor, she concluded, and we need to think very carefully about that.

Kyle Mazurek, vice president of government affairs for the Ann Arbor Ypsilanti Area Regional Chamber of Commerce, spoke in support of Heritage Row. Among the reasons he cited were that it supported goals of the chamber: higher density development, support for development of multiple modes of transit, increasing the supply of workforce housing, increasing the supply of parking with 60 underground spaces. He cited the plaza that would be available for public art. He also cited the provision of critical tax revenue to the city. The project, he concluded, was consistent with the goals of the general community.

Gwen Nystuen announced that she was there for the neighborhoods. She said that everyone who lived close to the center of the city had pressure on them for development of that land. The Heritage Row area was already zoned R4C, which was already dense – why was a PUD necessary? she asked. It was a way to get around zoning, she said. In the interest of maintaining the neighborhoods, she urged the council to reject the project.

Bob Dascola told the council that his family had been in business for 70 years in Ann Arbor. He watched urban sprawl take over. He used to live on Fifth Avenue, he said, and had friends who lived there. They always spoke of living downtown, he said. He described Heritage Row as a creative project that would support more people living downtown.

Rita Mitchell said that she was pleased to see the historic district commission awards. She noted that the recent A2D2 rezoning of downtown did not include designation for higher zoning for the site of Heritage Row. She felt that it was important to have the information about the proposed historic district in the area before having the discussion about the Heritage Row PUD. She asked the council to defer action on it, or else deny it. Once a historic building is gone, she cautioned, it is lost forever.

Ellen Ramsburgh, who had presented the historic district commission awards at the start of the council’s meeting, said that the standards for approving a PUD were high and that the project had not met them. She also contended that the intended preservation of the seven houses as part of the project would not comply with the Secretary of the Interior standards for historic preservation – due to the moving of foundations and the removal of additions. The planned buildings in back of the seven houses, she said, would be a detriment.

Ellen Ramsburgh, who serves on the city's historic district commission, spoke against the Heritage Row project.

Joe Ferrario urged the council to support the project. He noted that over the next 30 years, the population of Ann Arbor was projected to grow by only around 500 people, but was projected to add 18,000 jobs. Mindful of all the traffic that US-23 fed into Ann Arbor, he cautioned that sometime in the future we’d be talking about a proposed Heritage Row parking structure. Students already live in the neighborhood, he pointed out. Nothing deteriorates the character of a neighborhood more, he cautioned, than crumbling infrastructure – potholes that aren’t filled, trash that’s not collected, and snow that’s not plowed. He said he hoped the council would support the project and others like it, because it is the only way that Ann Arbor can become a real city.

Alex de Parry began by thanking the full range of people involved in the project – planning staff, city councilmembers and neighbors – for their input on it. He noted that he’d lived in Ann Arbor since the early 1970s and he’d seen the area improve since that time when he’d begun buying property there. During many meetings with neighbors, other citizens, planning staff and the city planning commission, he said, six main goals had emerged:

• Keep existing houses – the Heritage Row project does that, he said.
• Keep density close to the same density allowed under code, the density allowed for the matter-of-right project, which had 144 bedrooms in 24 6-bedroom units. Heritage Row, de Parry  said, is a mix of efficiencies, 1-bedroom units, 2-bedroom units, 3-bedroom units, plus one 5-bedroom unit that’s already present in an existing house. The unit count is 79, he said, but the bedroom count is 154, or 10 more than what the matter-of-right project had. Fourteen of those units, he said, were designated for affordable housing.
• Have adequate parking and keep it underground – the project has 60 underground parking spaces, which represents a 40% increase over the requirement of R4C requirement of 36 spaces. By putting the parking underground, he said, 53% open space would be achieved, including a public plaza.
• The new buildings should be background buildings behind the houses.

When it was her turn to take the podium, Betsy de Parry, wife of Alex de Parry, picked up on the list of goals where her husband had left off:

• Keep the height of the new buildings in scale with existing buildings – across the street, the church stands 60 feet tall, and Tom Whitaker’s house stands 44 feet 3 inches tall, she noted. At 39.625 feet, Heritage Row was shorter than both of those buildings and therefore consistent with the existing scale.
• Keep total massing consistent with what would be allowable under existing zoning – R4C would allow a total of 96,000 square feet, she said, whereas the PUD proposal would occupy only 75,882 square feet in both the new buildings and the existing houses.

Betsy de Parry finished off a list of points that Alex de Parry had started during his own public commentary segment, then made some more of her own.

She summarized the city’s central area plan by saying that Heritage Row is consistent with its stated goals – it’s consistent with the scale, height, and character of the neighborhood; it protects and enhances the existing houses and streetscape; and expands the supply of housing near downtown. The future land use map, she said, specifically designates the area for higher density. The reason Heritage Row exceeds the density allowable by code is because it includes affordable housing units, she said. The planning staff had verified that the project is consistent with the city’s planning documents, she said.

What Heritage Row does, essentially, is change what’s behind the houses, which are parking lots – and “there’s nothing sacred about parking lots,” she concluded.

Scott Betzoldt of Midwestern Consulting, civil engineer for the project, described it as a challenging project from a civil engineering point of view – challenges associated with providing modern utilities to seven existing houses. But he characterized the project as now conceived as something that was typical of the Ann Arbor feel that people have come to know and enjoy. Among the benefits were the preservation of the seven houses and provision of underground parking. Currently, he said, there were seven driveways and curbcuts along with seven different parking arrangements on gravel lots and the like. The existing spaces would be moved underground along with 30 additional spaces, he said, for a total of 62 spaces. Associated with the underground parking, he said, was an increase in the amount of usable open space – 53% of the area. Environmental benefits to the project include taking in stormwater from offsite as well as management of stormwater onsite – there currently is no stormwater management.

David Birchler, a city planning consultant with Birchler Arroyo Associates, addressed the project in the context of various city plans and policies – the central area plan, the downtown residential task force report and various provisions of the PUD ordinance. Many of the goals of the central area plan designed to affect density and affordability, he said, are furthered by Heritage Row: the development of new architecture that complements the scale and character of the existing neighborhood, to protect and maintain the diversity of housing options, to expand the supply of housing to meet a variety of lifestyles and incomes, to increase the availability of low-income rentals, to facilitate private initiatives to increase rental opportunities, and to improve the appearance of buildings and grounds to enhance the appearance of the neighborhood.

The downtown residential task force, Birchler said, had studied an area that includes the Heritage Row site – the area located within a 1/4 mile of the Downtown Development Authority boundary. The goal spelled out in the report, he said, was 1,000 new units of housing near the downtown. Heritage Row contributes to the goal in a way that is consistent with the task force recommendations, he concluded. With respect to the PUD regulations, the Heritage Row project encourages innovation in land use and design, achieves economy and efficiency in the use of land, encourages usable open space, provides adequate housing options suitable to the demands of Ann Arbor and expands the supply of affordable housing. Heritage Row provides opportunities suitable for those people who would choose a less automobile-oriented lifestyle, he said. The project would help cultivate a new model for in-town residential projects that’s sensitive to the quality that Ann Arbor deserves, the affordability it needs and the commitment to historic preservation that it demands.

Bradley Moore is the architect for the project. He described Heritage Row as an infill project that preserves the existing streetscape, while permitting construction of three new apartment buildings behind the existing houses. The new buildings are designed to be background buildings, and to be consistent with the scale of the other buildings in the area. The new buildings were not taller, from the ground to the top of the roof, of existing houses on the site, not taller than other houses on Fifth Avenue, not as tall as the Washtenaw Building less than a block away, not as tall as the public library also less than a block away, and not as tall as some of the houses found on Hamilton Place.

Architect for the Heritage Row project, Bradley Moore, shows councilmembers how the public plaza is configured.

The footprint of the proposed new north building is only 5,200 square feet, compared with 22,000 of the existing house at 415 S. Fifth, Bradley stated. The other two new buildings have footprints of 3,200 and 3,000 respectively, a total of 11,400 for new construction, plus a combined footprint of 13,100 for existing buildings. The new buildings don’t loom over the neighborhood, he said. The materials had been chosen in a way to respect the aesthetic of the existing neighborhood. The architecture of the new buildings has been designed so as not to compete with the existing surrounding architecture, he said, and to blend into the background. They would be constructed to comply with EPA Energy Star standards, which means that they’ll be 20-30% more efficient than a standard building.

The shading studies that had been done, Moore explained, showed that no significant shadows would be cast on buildings to the south, west, or east of the site, and that the existing building to the north of the site would be only modestly shadowed and only for part of the year. Moore said that the project would not shade its neighbors more than Tom Whitaker’s home shaded Tom Luzcak’s house next door.

John Dziurman introduced himself as a historic preservation architect by trade, certified as a historic architect by the state and the federal government. He said he’d served on the historic district commission of Rochester Hills, Mich. since 1987. His role in the Heritage Row project, he explained, was in connection with the preservation of the seven houses and the streetscape, and he’d evaluated the entire proposal with respect to the Secretary of the Interior standards. He stated that the project was consistent with the historic preservation theme in the city’s central area plan.

The seven houses would be restored in accordance with the historic standards for the period of historical significance as determined by the historic district study committee, which was 1838-1941. That would include the removal of some rear additions, Dziurman said. Five of the seven houses would be moved forward, he explained, in order to facilitate construction of the underground parking garage and to comply with the 19-foot setback. He allowed that moving a historic resource is discouraged, but noted that the standards allow it if the structure is primarily of historical significance due to its architectural value, or its association with a historic person or event. Buildings are allowed to be moved, he said, if doing so will preserve the building. After restoration, he said, the seven homes would be repainted with historically correct colors. The elimination of onsite surface parking, through construction of the underground parking garage, he said, was also consistent with historic restoration standards.

Dziurman also spoke at the site plan public hearing on Heritage Row. He noted that he’d served for 20 years on the historic district commission of Rochester Hills and told the council that he’d seen many cases where they’d actually lost their resources. In Rochester Hills, the council would turn down historic preservation in favor of development. One strategy he used, he said, was to allow development but to require preservation of historic buildings. He then said he was not sure if he should say it, but added that building underground parking is very, very expensive, as is preserving seven historic houses.

It’s not a big money-maker for anyone, Dziurman said. So there has to be a little give-and-take by the community. Any one of the houses would cost at least $100,000 to restore, or probably more. If you multiply that by seven houses, and look at the cost per space of building underground parking spaces, he said, you could see how the restoration of the seven houses was a good deal for everybody. Otherwise, he feared that the historic resources would be lost. In Rochester Hills, he’d seen that happen, he said.

Bob Snyder, introduced himself as representing the South University Neighborhood Association. He characterized the situation as a “stalemate” that was not a win-win for anyone. He described the seven houses as having lost all vestige of their architectural integrity. With or without Heritage Row, he said, the seven houses have, for the last two-thirds of their lives, been “savaged and pillaged” all in the name of student housing. Both de Parry and the Germantown neighbors, he said, were being ill-served by the lack of coherence in the administration of the city’s zoning laws. Whichever side wins, he said, it will be a hollow victory.

What needs to happen, Snyder said, is for people to lay down arms and make something good happen that might not be perfect. Snyder appealed to the notion of the Pareto optimality, which is an economic state when no one can be made better off by making someone else worse off. It would take eight votes to approve it, or five [sic] to shoot it down, he said. He suggested that the councilmembers should make sure they’d taken a walking tour of the “crime scene” before making their decision. He concluded that he was neither for or against Heritage Row, but encouraged the council to act as a well-prepared jury before “sticking it to either side.”

Scott Munzel introduced himself as legal counsel for the Fifth Avenue Limited Partnership, the owner of the Heritage Row project. He noted that a PUD is a rezoning, and therefore a “legislative act.” There is, therefore, no higher standard for PUD approval. Also under state law, a PUD is separate from all the others and any decision on a PUD would not set a precedent for any future proposals. Munzel pointed out how the planning staff report details how the project meets the eight criteria outlined in the PUD ordinance. The first criteria is the beneficial effect. Among the effects listed are innovation in land use and variety in design, efficient land use, and expansion of affordable housing inventory. Heritage Row met the standard by innovatively unlocking the hidden area of these unusually large lots, he said, in a way that conformed with the central area plan and the downtown residential task force recommendations. Increased urban density, he said, was an environmental imperative.

Heritage Row is “doubly green” because it increases the energy efficiency of the existing houses, and provides new construction that was in virtue of its location environmentally sound – cutting vehicle miles traveled and allowing residents to walk to work, Munzel said. It also provides affordable and moderately-priced units which would ultimately help downtown succeed. A second PUD standard is whether the project could be achieved under a different zoning class. Other zoning classes, he said, are too rigid to allow this project’s design. A third PUD standard is conformance with the city’s master plan, which has been confirmed by the city’s planning staff, Munzel said. A fourth PUD standard is to eliminate disturbance of historical features. Munzel stated that the project advances the historical preservation goals of the city – it’s “historic preservation plus,” he said. Heritage Row, Munzel concluded, does meet the standard. The concerns of the neighbors, he said, boil down to the neighbors not liking change. It takes courage to face our future challenges, he said, but he thought that city residents had the courage to face them.

David Peters introduced himself as an architect and planner who has worked and lived in the community for 50 years. He said he supported Heritage Row. The renovation of the seven houses would enhance and improve the value of the current neighborhood, he said. He said he’d walked the site and driven by the site. The existing rooflines and structures of the seven houses would minimize the view of the proposed new buildings behind the existing houses. He urged the council to agree with the planning commission and to approve the project.

Peter Webster, an attorney with Dickinson Wright, described the Heritage Row proposal as an alternative to the matter-of-right site plan that has already been approved by the city council, and would remain if the PUD is not approved. The main characteristic of the PUD proposal is the preservation of the seven existing houses, he said. He commented on the compliance of the proposal with the city’s planning documents and the downtown residential task force report. The goal, he said, is to increase the amount and the density of housing – that is achieved by Heritage Row, he said, but in a balanced way.

Peter Webster, an attorney with Dickinson Wright and legal counsel for Heritage Row, spoke in support of the project.

It increases the amount of allowed density only slightly above that which is allowed by the matter-of-right project, Webster noted. The project also overcomes the challenges inherent in the location of the site, he said, noting the underground parking, plus the lack of any increased burden to the infrastructure. The tie-ins for water and sewer plus the stormwater management were significant upgrades to the infrastructure, he said. Two items in the downtown residential task force report highlighted by Webster as challenges were (i) zoning as a barrier to innovative site plans; and (ii) the lack of open space. Heritage Row, he said, attempted to meet the first challenge by asking for a rezoning, and met the second by providing for additional open space.

Anne Eisen spoke about zoning and in support of long-term planning. The question is whether to rezone half a block on Fifth Street, she said. The area is separated from downtown by an existing historic district along William Street, she said, and the current zoning of R4C had been in place for 50 years.

The city’s long-term planning documents have recommended maintaining preservation of the scale and character of the neighborhood, Eisen said. The R4C zoning had not been modified to accommodate that recommendation, she said. When the historic designation of houses in the area was lost [in the Draprop court case, which disallowed the creation of a catchall historic district of various individual, unrelated properties], Eisen said, residents tried but failed to restore the houses’ historic designation. The new A2D2 rezoning, she said, recognized the appeal of the historic neighborhoods in making Ann Arbor special and attractive. The neighborhood had spent three years under siege from those want to “mow down the neighborhood” to build inappropriate structures.

Eisen also spoke during the public hearing on the site plan for Heritage Row. She said she’d been involved in the negotiations with Alex de Parry, and said that it had come a really long way since the original City Place proposal. She appreciated very much that he’d respected the request that the houses be preserved and agreed herself that there were additions that had been put on the houses that should be removed. She said she was not sure that some of the additions were structurally sound. She felt that the possibility should be respected that the historic district could be established. As for the proposed new buildings, she said that an honest height comparison needed to be made between the height of those buildings with long flat roofs versus houses with peaked roofs.

Al McWilliams told the council he’d lived within a few blocks of the neighborhood for 10 years and supported the project. He said it was not an age issue – he employs 10 professionals downtown from 19-45 years old, all of whom need places to live, he said. He had lived in the neighborhood for 10 years and was tired of paying $1,000 a month for a “wall-to-wall barf pit” – he told the council he’d let them figure out what that meant.

Alluding to previous speakers who’d noted the exact height of his house, Tom Whitaker began by quipping that there must have been a lot of people over at his house with ladders. One thing about his house, he said, however tall it is, it’s not 100 feet long, and that’s the difference. In January 2009, as the City Place iteration of the PUD had moved its way through the city’s planning process, a member of the city planning commission had sent a letter to the city council, Whitaker said. He wanted to highlight some of its points.

Noting that the site in question is zoned R4C and therefore creates specific limits on density, the letter goes on to say that the central area plan could not be clearer on the point of the need to protect, preserve, and enhance the character of the neighborhoods. It was not a question of preserving historic homes, but rather one of making sure that infill development is consistent with maintaining scale and existing density.

The goal of PUD zoning, the letter said, was not to allow for a dramatic percentage increase in density in exchange for other benefits. The letter refers to a “bargain” made with residents over the course of the years-long planning process connected to rezoning – there would be increased density in the core that would help protect the integrity of near-downtown residential neighborhoods. If that end of the bargain was not maintained, the letter warned, the fallout could jeopardize future consideration of increased density anywhere near established neighborhoods.

Whitaker reminded the council that the council had rejected the City Place PUD on a 10-0 vote and contended that Heritage Row is no improvement. City Place had 90 units, 164 bedrooms and 97 parking spaces. It had 14 affordable units plus 38 more affordable units at a higher rental rate, plus geothermal HVAC. Heritage Row, on the other hand, has 82 units with 163 bedrooms, 60 parking spaces, and 14 affordable units, but no geothermal system. There’s been no compromise, he concluded, and that’s why he is still opposed to the project.

Ray Detter asked the council to reject the project. Although he is the president of the Downtown Citizens Advisory Council, he said he was speaking only for himself, because the project was a situation outside the downtown area. Detter said that his position is that if a PUD is opposed by a clear majority of residents in the neighborhood, then it should not be forced upon people. He also noted that he is not opposed to projects inside the downtown that increase density, like Zaragon Place 2. Referring to the citations of the downtown residential task force report, which many who had already spoken in support of Heritage Row had cited, Detter noted that the report had not advocated “ripping out” sections of the area near downtown. He’d attended every one of the meetings of the task force, he said. Detter also asked that the council establish a historic district for the area.

During a recess called so that Stephen Kunselman (Ward 3) could review the site plan for the matter-of-right City Place project, Kunselman got a visit from Ray Detter, right.

Detter also spoke during the public hearing on the site plan for Heritage Row. He noted that he lives in a house zoned R4C abutting a D1-zoned area. Even D1, he said, does not allow development without a 30-foot setback next to R4C. And then at the 30-foot height, D1 buildings need to step back further, he said.

The Heritage Row project, he noted, allows for only 13-15 feet of a setback and then goes straight up to 39 feet. Detter noted that he’d attended all the meetings of the R4C task force that is currently studying the R4C zoning code – he contended that those who’ve attended the meetings are in favor of keeping things the way they are, to the point of opposing the combination of parcels, as the Heritage Row project does. He allowed that Heritage Row is better than the previous proposals.

Following Detter at the mic during the site plan hearing was Alex de Parry, who told Detter, who was seated behind the podium, that he’d also attended the R4C task force meetings. He told Detter he saw the density question somewhat differently. As de Parry was not facing the podium, Detter admonished him that he needed to speak into the microphone. Continuing, this time speaking into the mic, de Parry observed that allowable density in R4C zoning is greater than what people think. On Hamilton Place there were small lots with large houses – it is extremely dense. The density on the Heritage Row site, he said, was allowed to be 144 bedrooms under R4C zoning. The Heritage Row PUD asked for 154 bedrooms. Of the 79 units, 14 were affordable units. If the affordable unit were subtracted out, the proposed density is would be less than what’s allowed by the existing R4C zoning.

Bradley Moore also addressed the council during the site plan hearing in order to respond to some of Detter’s comments. Moore noted that he had served on the citizens advisory committee on the A2D2 rezoning project for the zoning overlay committee. He said that Detter was correct about the need for setback in D1 areas, but that it was motivated by the fact that in D1 it is possible to do a whole host of other things – it’s for the core of downtown. In D1 zoning, you’re looking at buildings in excess of 150 feet, so it is an entirely different situation that motivates the need for setbacks. The reduced distance in setback to 15 feet, he said, was appropriate to a residential-residential interface and to a three-story building as opposed to a 150-foot-tall building. He also adduced the real-world example of the Washtenaw Building on William Street, which was much longer than the three proposed new buildings, yet did not destroy the character of Hamilton Place.

Beverly Strassmann, who is president of the Germantown Neighborhood Association, said that the bottom line is that Heritage Row will “wreck” the 400 block of South Fifth Avenue in the same way that the omission of the 500 block of South Fifth Avenue from the proposed historic district will wreck that block. Instead of wrecking both those blocks, she asked the council to reject Heritage Row and to add the intact historic 500 block of South Fifth Avenue to the recommended historic district. Strassmann indicated that she felt like the project would be acceptable if the new buildings had one story knocked off of them – as they were currently designed, they could not hide behind the houses.

Lou Glorie, who is contesting Carsten Hohnke’s Ward 5 city council seat in the Democratic primary, told the council she hoped that they would reject the project. She said the benefits don’t outweigh the detriments, and it would set a precedent that is damaging. She also said that the decision should not be made in advance of the decision on the establishment of a historic district.

Heritage Row: Council Deliberations

Tony Derezinski (Ward 2) led off deliberations on Heritage Row with a suggestion of an amendment to the development agreement to make clear that if the PUD request were granted, the matter-of-right project that had been previously approved could not be built. The amendment, as read aloud by assistant city attorney Kevin McDonald, stated that the supplemental regulations would apply to the property, “including any previously approved development for the property.”

Outcome: The amendment ruling out the matter-of-right project on approval of the PUD was unanimously passed.

Sabra Briere (Ward 1) then led off a discussion of the public plaza area. She wanted to know how visible the area would be and how accessible to the public it would be. Bradley Moore, the architect for the project, used the poster of the site plan to indicate how it was situated – there would be no gate, he said, but it would likely be differentiated through use of different colored pavers. Moore indicated that he thought it would be accessible to the public and no one would be asked to leave unless they presented themselves as a nuisance.

Kevin McDonald, assistant city attorney, was asked to weigh in to clarify legal aspects at various points during deliberations on the Heritage Row project.

Stephen Kunselman (Ward 3) followed up on the public plaza issue by comparing the project with Ashley Mews – that project actually has a public easement, he said. Would Heritage Row have a public easement for the plaza? Developer Alex de Parry indicated that it would be accessible to the public and that if it were not already in the supplemental regulations, it could be added.

Kevin McDonald, assistant city attorney, indicated that he was not aware of anything in the supplemental regulations that addressed a public easement. Wendy Rampson, head of planning for the city, indicated that the planning commission was presented with an accessible amenity, but not a public amenity.

Carsten Hohnke (Ward 5) confirmed with Rampson that the public plaza was a non-trivial, important part of the open space, that was included in the claimed benefits of the project. He noted that it was a benefit to the residents, but not the public. De Parry responded by saying that it was his intent to have a public plaza with public art. If the supplemental regulations needed to be fine-tuned, he said, that’s fine: “Whatever I gotta do, we’ll do it.”

Hohnke said it felt like déjà vu all over again. He said he appreciated the effort on the part of the developer. A place of agreement Hohnke identified was that the city should tread lightly when rezoning a central part of a neighborhood. One-off exceptions, he said, should provide significant benefits, noting that the historic district study committee had indicated that the houses were historic resources. He noted that for the previous PUD, City Place, the staff report had warned that it would set a precedent that is attractive to targeting R4C zoned neighborhoods for development. The same things that were true of the previous report are also true of the current proposal, Hohnke said. The number of bedrooms had dropped from 164 to 163, he said, and the setbacks for the current project were smaller. For the previous project, Hohnke said, the staff recommendation against it and the council’s 10-0 vote against it showed that the benefits offered were not sufficient.

Hohnke contended that they were still left with a “benefit gap.” The number of parking spaces had dropped from 97 to 60; the affordable housing units offered in the previous project had been 52, as compared to 14 in the current project; the geothermal heating and cooling system had dropped to Energy Star buildings. The project offered reduced benefits with the same density, said Hohnke. The big difference, he allowed, was that the project no longer sought to demolish seven houses – that covered some but not all of the benefit gap.

Hohnke said he was surprised at how often density is quoted as a benefit. Most people are supportive of downtown density, he allowed, but by community consensus and by the city’s planning documents, Heritage Row is not a part of the downtown, Hohnke said. As you walk through the downtown into the residential neighborhoods, he said, it was clear that there’s a boundary, Hohnke said, and it’s fair to have a discussion about whether it’s a living boundary. But Hohnke contended that we haven’t had that discussion.

Hohnke expressed concern that the vote would be seen as a litmus test for supporting downtown residential density. [Hohnke Whoever wins the Ward 5 Democratic primary will likely face an independent challenge from real estate broker and DDA board member Newcombe Clark in November, based in part on a campaign that is more supportive of development than Hohnke has been during his first two years on the city council.] Hohnke’s defense of the council’s record on development included essentially the same list, with some additions, that he’d read aloud at a recent meeting between members of the DDA board and city councilmembers [Chronicle coverage: "Parking Deal Talks Open Between City, DDA"]

• 14 stories at S. Forest & S. University [601 S. Forest]
• 9 stories at Washington & Division [Metro 202]
• 5 stories at Liberty & First
• 10 stories S. University & E. University [Zaragon Place]
• 9 stories at First & Washington [Village Green's City Apartments]
• 4 stories at Liberty near Division
• 5 stories on N. Main near Summit [Near North]
• 9 stories at Kingsley & Ashley [Kingsley Lane]
• 8 stories at Maynard & William [The Collegian]
• 8 stories at State & Washington [411 Lofts]
• 8 stories at Washington & Ashley [Tierra on Ashley]
• 11 stories at Ashley & Huron [Ashley Terrace]
• 11 stories on North Main near Catherine [The Gallery]
• 12 stories at Main & William [William Street Station]
• and probably 14 stories at William & Thompson [Zaragon Place 2]

Because of all those approved projects, Hohnke said, the community’s commitment to downtown residential density and change was not hanging in the balance.

He came to the conclusion that the Heritage Row PUD did not meet the threshold for benefits, especially at that location.

Derezinski said he’d come to the opposite conclusion from Hohnke’s. He noted that he’d gotten a double-dose of the project – it had been around since he’d been on council and he was appointed as the council’s representative to the planning commission. He said he felt that the project had been modified to accommodate criticisms. He then ticked through some of the history of how the matter-of-right project had been introduced and the historic district study committee had been appointed with an associated moratorium to prevent the demolition of the seven houses.

Derezinski echoed the sentiments of Bob Dascola during public commentary, and called it one of the most creative projects he’d seen. It had been fine-tuned in response to input from the neighborhood, like the Near North project, he said. He compared the situation to the Peanuts comic strip where Lucy is holding the football for Charlie Brown – at some point you have to let him kick the ball, he said. The distinction of downtown versus non-downtown was not one that Derezinski felt was valid with respect to density.

Mike Anglin (Ward 5) said he wanted to join Hohnke in congratulating the people who had contributed to the dialogue during the long process. He noted that de Parry has maintained a strong sense of humor, and he applauded de Parry for that. Anglin put his comments in the context of “social capital” – a person’s home in the context of their social neighborhood are a part of that. It applies in particular to neighborhoods, Anglin said.

Anglin said he did not feel that the council would be protecting the public welfare with this project. He did not find a compelling justification, he said, for the project. He did not feel “dragged to” that decision. A hypothetical example of a compelling justification, he said, might be if there were an abandoned factory at the location and the owners did not want to take it down. If the owner came back and said that he wanted to demolish the factory and create a park, that would be a compelling reason for a change. Heritage Row, however, did not provide for a change that he was “absolutely thrilled with.”

Anglin speculated that the places where zoning would be challenged were the older parts of the city first – in 50 years he figured there might be debate over what should happen to Briarwood Mall. Maybe the affordable housing for the city would be built outside of downtown. He stated that people were obsessed with the idea that the downtown had to become a “major place.” Maybe that’s a place where affordable housing can be built, he said.

Marcia Higgins (Ward 4) alluding to the lengthy speaking turns of those who’d already spoken, asked mayor John Hieftje to enforce the time limits on councilmember speaking turns – five minutes for their first turn on an item and three minutes for their second turn.

Sandi Smith (Ward 1) began by describing PUDs as a tool – it allows something to happen that doesn’t quite fit into existing zoning. With R4C, she said, it was somewhat problematic, because what actually fit is not always pleasing. They tend to be big blocky buildings with six-bedroom units. She stated that she did not want it to be the case that the city’s development strategy tended towards having only a wealthy downtown. She said she was for a diversity of housing stock and different levels of affordability.

Smith said she did not want it to be the case that only the wealthy could live downtown. She echoed Derezinski’s points. She also pointed out that Heritage Row offered an opportunity to preserve the houses, and she did not see any other way for that to happen. Restoration of the houses could proceed only by someone purchasing each of them and deciding to renovate them – that would set up an elite neighborhood, she said. She concluded that she was willing to support the project – neither side was particularly happy, she said.

Margie Teall (Ward 4) characterized her thinking on the project as a “back-and-forth struggle.” Addressing Hohnke’s benefit gap, she said she felt that the gap had been crossed. She indicated that there was a high emotional attachment to the houses across the city – she found the restoration of the houses to be a benefit. She called the underground parking “terrific.” Alluding to the parking lots currently behind the houses where the new buildings would be constructed, she observed that living in an area where backyards are graveled is not a benefit. She allowed that Zaragon Place 2 was in the right place, but that it would not be cheap to live there, which is something that Heritage Row might offer. She concluded that she would support Heritage Row.

Christopher Taylor (Ward 3) said he would be supporting the project and that he adopted the planning staff’s review of benefits. He cited specifically the use of the backyard space as innovative, the use of the existing buildings, and the introduction of additional open space. He said he took very seriously the objections of those who had addressed the council.

In his view, Taylor indicated that some of the things he’d heard that night suggested that the project was not so far from the character of the existing neighborhood. Specifically, he alluded to a comment from someone [from Beverly Strassmann] who had suggested that the project would be acceptable if it had one story lopped off the rear buildings. That indicated to Taylor, he said, that “we’re pretty close with this thing.”

The current matter-of-right R4C project allows 144 beds, and the 163 beds offered by Heritage Row was very close to “where R4C lands us,” he said. He also noted the presence of the Washtenaw Building on William Street. All of these factors, Taylor said, suggested to him that the project was “not out of the heartland of the neighborhood” and that the neighborhood could “bear it.” The neighborhood was a “contradictory” neighborhood on the edge and takes elements of downtown and residential and marries them together in a useful and innovative way, concluded Taylor. He said he’d be supporting the project.

Stephen Kunselman (Ward 3) began by saying he would not be supporting the project. He referenced Hohnke’s argument about the failure to meet the standard of benefit. Kunselman observed that the project offered housing – but housing is built all across the city. Just because the buildings are in the backyards of some historic houses doesn’t make it a public benefit. He expressed dismay that the project had made its way all the way through the planning commission and to the council table without the public easement being included in the supplemental regulations.

During a recess that was called so that he could review the site plan for the matter-of-right City Place project, Stephen Kunselman (Ward 3) got a visit from Sabra Briere (Ward 1).

Kunselman expressed concern at hearing de Parry talk about buying the parcels since the 1970s, as if it was part of a plan to tear the houses down and build an apartment building. He suggested that the houses could be rehabilitated by having their old additions torn off and have new additions added – as opposed to constructing new buildings in the backyard.

One of the awards handed out by the historic district commission that evening, said Kunselman, was for a duplex that had been converted back to a single-family home. That was still possible, he said. The houses would not be torn down because of the temporary moratorium and if a historic district is established they will also not be torn down.

Kunselman said that a city that destroys its character by putting houses behind houses doesn’t always realize its density goals.

Note: During his election campaign, Kunselman had stated that he was against “backyard development.” From The Chronicle’s report of the July 11, 2009 city Democratic Party candidate forum:

The big thing for me about density of our community is that our downtown can obtain some greater density, but our neighborhoods need to be protected. And I think my record is pretty clear on that. I have fought hard for the changes to prevent backyard development – or make it much more difficult, I should say – to do backyard development in our neighborhoods. Particularly, in the neighborhood where I grew up, where we had three-quarter acre lots and developers could then come in and buy it and start building houses behind houses. Those are subdivisions, those areas need to be protected, and I understand the great concern that neighborhoods have, especially in our urban ring, are feeling about this idea of what density means.

Kunselman noted that many of the projects that Hohnke had listed off he was proud to say he’d voted for – so he was not concerned about achieving downtown density. He also questioned how affordable the units would be in Heritage Row, noting that they’d just heard someone from the developer’s team [John Dziurman] say that it was very expensive to renovate houses and to build underground parking. Maybe 14 of the units might be cheap, Kunselman said, but what about the rest?

Sabra Briere (Ward 1) began by saying she would not support the project. She said that the PUD was something that allowed the city and developers some flexibility to accomplish projects that were not otherwise possible. She noted that the report from the downtown residential task force – which several supporters of the project had cited – was one of several planning documents used by the city. The study area included a 1/4 mile band around the DDA area. She read aloud a passage from page 10:

The Task Force spent a great deal of time discussing the importance of adjacent neighborhoods to the downtown. The task force felt that adjacent neighborhoods should be preserved and supported. Although these neighborhoods are outside of the DDA district, many residents of these neighborhoods consider themselves to be “living downtown.”

As one strategy for increasing density, the task force report goes on to suggest that the city council consider a revision to the city’s accessory dwelling unit ordinance. That was the way the task force’s report suggested increasing density in the near downtown neighborhoods, Briere said, not through PUD rezoning like Heritage Row.

On page 16 of the report, she said, the task force identifies zoning as a possible barrier to density:

[...] zoning changes and development must be undertaken carefully to reaffirm the Downtown Plan goals of protecting the near-downtown neighborhoods and recognizing the transition in intensity, building scale and height on neighborhood edges, the Task Force recommends some change to almost every existing zoning district within the near downtown area.

But Briere pointed out that the task force pointedly recommended leaving R4C alone. And the areas near downtown where the task force had identified as possibly supporting greater density – the North Main corridor and commercial nodes like Packard & State – did not include the Heritage Row site, she said.

Examining the PUD ordinance language, Briere observed that the land itself was not difficult to build on. She noted that the public plaza was not actually available to the public.

Hewing to Higgins’ earlier request that time limits be enforced, Hieftje informed Briere that her five minutes were up – but suggested she might continue, using her second speaking turn of three minutes. To that, Briere declared cheerily, “Oh, no, that would be so wrong, and I would hate to disappoint councilmember Higgins.”

Stephen Rapundalo (Ward 2) said he found himself in agreement with the planning staff report. It strikes a balance between the look and charm that people want to maintain in the area, while providing a diversity of housing stock. He supported the addition of workforce-type housing, which is needed near downtown. The underground parking is also a plus, he said. He was struck by the fact that R4C would allow for more square footage to be built on those parcels, which he said nobody wants to see.

For his part, Hieftje first confirmed with the Kevin McDonald, assistant city attorney, that if the Heritage Row project were approved, it would no longer be possible to build the matter-of-right City Place project.

Hieftje characterized Heritage Row as “more palatable” than the matter-of-right project. If a historic district were not enacted, he said, de Parry could build that project. Hieftje said he was largely in agreement with Hohnke’s list of approved developments. He said he was torn, but would support the project based on the idea that the matter-of-right project would be built if no historic district is established.

Taking his second speaking turn, Hohnke said he feared it would set a precedent for other developers – building something would be okay as long as the houses are not demolished. He also noted that the amount of affordable housing that’s offered is only 14 units and that it’s located in an area that has not been identified as in need of additional affordable housing.

Kunselman then raised some doubt as to how he’d vote – a switch to yes from no by Kunselman would have given Heritage Row the eight votes it needed for approval.

He noted that he was the only councilmember who was not serving when the matter-of-right project was approved, so he wanted some description of it. Hieftje told him that it was “blockish” in nature and that it would replace the seven houses instead of restoring them.

While Kunselman mulled the matter-of-right, Briere noted that the developer for The Moravian had studied previous PUDs in the city – and that meant that future developers would look at the council’s words and actions on this decision. Is the accumulation of lots and building buildings behind buildings appropriate for infill development to increase density? Is that our intent? she asked. There were seven individual lots that were likely not appropriately zoned R4C, but were accumulated – not through a legal prescription, but merely for the purposes of this development. The lots have to be combined for the development to work, but they’re not legally one lot today. It was a question of whether we want to do that, she said.

In response to Briere’s hinting that a decision about a PUD represented a precedent of some kind, Hieftje elicited from McDonald the explanation that a decision on a PUD was a legislative decision, and did not have “precedential value.”

Responding to earlier points that only 14 units would be affordable, Smith pointed out that there was a difference between workforce housing and elite housing. She said she wanted to see a diversity in housing options. She noted that she was able to count and realized that it would have to be sent back to the drawing board. She encouraged the developer to come back with fewer units and it would fit the R4C zoning and would not require rezoning approval.

Taylor said he differed from Briere and Hohnke in that the city currently has a site plan on the books that’s ready to go that has aggregated parcels. Whether that’s something that should be changed going forward is an “open and good question,” he allowed, but at this point, the parcels are capable of aggregation.

Kunselman asked McDonald what would prevent the council from postponing the vote. McDonald indicated that it would be appropriate to postpone if the council felt there needed to be additional work done on the project, or if there are additional questions that need to be answered, or for some other reasonable reason. Kunselman said he appreciated the mayor’s concern about the matter-of-right project and asked his colleagues to postpone the vote until the next council meeting. He said that because he didn’t have intimate knowledge of the matter-of-right project, he’d like two weeks to look at it and perhaps change his vote.

Briere noted that a two-week postponement would put Heritage Row on the same agenda as the final historic district vote. Hieftje suggested that Kunselman request that the postponement be placed on the agenda after the historic district decision.

Hohnke, though he seconded the motion to postpone, said he would not support the postponement, saying that it would not be fair to everyone to delay. As far as the concern about the matter-of-right project, Hohnke noted that there was still a moratorium in place and that if a historic district were established, the matter-of-right would have to be reviewed by the historic district commission.

Smith suggested that the meeting be recessed so that Kunselman could be informed enough to be comfortable.

Outcome: After the recess, the roll call vote on the postponement had in favor: Kunselman, Taylor, Hieftje, Smith and Briere. The postponement thus failed with just five out of 11 votes.

Outcome: Heritage Row was rejected on a 7-4 vote in favor. It needed eight votes for approval. On the PUD itself, the four councilmembers voting against it were Kunselman, Anglin, Briere and Hohnke.

Fourth/Fifth Avenue Historic District (First Reading)

Before the council was a recommendation to establish a historic district along Fourth and Fifth avenues that can be described roughly as between William Street on the north and Packard Street on the south. The council had rejected the idea of establishing a study committee in late 2008, but changed its mind in mid-2009, when the matter-of-right City Place development project was moving through the city’s approval process. The council gave the study committee appointed in 2009 a smaller area to study than had been suggested in 2008. Chronicle coverage includes:

• “The Constitution of Historic Districts“
• “S. Fifth Avenue: Historic District Development“
• “No Formal Study Committee for Germantown“
• “Demolition Moratorium for Two-Block Area“

Historic District: Public Commentary

Beverly Strassmann introduced herself as a resident on South Fifth Avenue. She lives south of Packard Street and spoke on behalf of other residents who live south of Packard on South Fifth, which is an area not included in the area recommended as a historic district by the study committee. She said they opposed the historic district as currently configured, with a southern border at Packard Street. She characterized it as created “on the fly” – set up to prevent developer Alex de Parry from demolishing houses for a new development. She said the way the committee and the proposed district had been set up was not lawful. She said they supported a historic district, and that it was important to include the one intact block of South Fifth – south of Packard – in the whole neighborhood. The 500 block of South Fifth, she said, is the center of the district, the area with the greatest density of historic resources.

There were also historically important people who lived south of Packard, among them the Manns and the Allmendingers, she said.

Claudius Vincenz told the council he’d try to pick up where his wife, Beverly Strassmann, had left off. He pointed to the relationship between the Mann family – who still own a house in the neighborhood south of Packard, who had married with the Schmids, who lived north of Packard. Packard Street, he concluded, was not any real boundary in the neighborhood.

Vincenz said he was against the historic district as proposed. There is a lot of value in protecting historical houses, he said, but this historic district had been “conceived in a hurry,” because of the fear that the seven houses on Fifth Avenue would be destroyed. The study committee, he continued, faced an impossible task of completing the study. It was a case, he said, of the city council wanting to use the study committee’s expertise as “cover,” but defining the boundary of the historic district itself as the council. He characterized the way the council had proceeded as “circular” – the kind of reasoning that would crash a computer, but is common to the council, he said.

Historic District: Council Deliberations

Tony Derezinski (Ward 2) led off the deliberations on the establishment of a historic district by noting that the council had just witnessed a lot of history and he wanted to go back to the time when the study committee had first been proposed. The boundaries had been substantially larger, he said, and the council had voted it down. He’d voted against it then, he said, because he felt that such study committees were self-fulfilling prophecies. From The Chronicle’s Dec. 15, 2008 meeting report:

[Higgins] also noted that the supporters of the study committee came from a two-block square, much smaller than the area of proposed study. She said she would like to see a bigger dialogue.

Councilmember Tony Derezinski reiterated Higgins’ points. He also said that in his work as the council’s representative to the planning commission that there was a lot of comprehensive planning work going on citywide, and that this neighborhood needed to be considered in that context. He expressed concern about the short time frame from Friday to Monday that council had for consideration of the resolution. He also expressed concern about the possibility that the appointment of a study committee would result in a “self-fulfilling prophecy.”

He’d also objected when the historic district, with an accompanying moratorium on demolition, was introduced in August 2009, he said. From The Chronicle’s report of the Aug. 6, 2009 city council meeting deliberations for a smaller study area:

Derezinski said that while he was glad that some councilmembers had had a chance to consider the proposal, he had not, because it had been sprung the same night. He contrasted the process for the moratorium on development in R4C areas, which had stretched over four meetings. Here, the council was being asked to make a decision in 10 minutes. He said he wanted to hear staff input. “I’m asking for 12 days [until the next meeting],” he said. Derezinski noted that while it was a similar proposal to the one council had considered in December 2008, it was not the same one.

That had passed, Derezinski reminded the council. And now, one of the recommendations of the study committee on the size of the district was, “Guess what? To expand it again!” One of the speakers during the public commentary [Beverly Strassmann], Derezinski said, was right when she characterized it as proposed at the last minute to block a project. That was a very candid assessment, Derezinski said, while allowing that the speaker was making the point to argue that the district should include another block of buildings. He then read a chunk of a letter sent to the council from one of the members of the study committee, Rebecca Lopez Kriss:

The committee was not tasked with analyzing economic effects that may result from this designation, nor the feasibility of its historic rejuvenation. We were not asked to analyze how a historic area would fit into long-term planning and land use for the City of Ann Arbor, nor how historic designation would fit into the current review of the R4C/R2A areas. We did not study how the area would affect long-term revenues for the city based on alternative uses. The reality is that our committee members are not experts in economics, urban planning, or urban finance. Our committee was made up of dedicated historians answering a single question.

Derezinski said that the letter provided a cogent argument against establishing the district and urged his colleagues to vote against it.

Mayor Johnn Hieftje reminded councilmembers that the proposal was receiving only its first reading. [It's somewhat unusual for councilmembers to vote against a proposal on first reading.]

Carsten Hohnke (Ward 5) indicated that he would support the proposal at the first reading “as is the custom.” He noted that the fact that the committee didn’t take into account the economic impact was not an argument against a district. Those factors needed to be taken into account – as well as the challenges that homeowners would face. He also noted that there could be significant benefits to the community. He thanked Derezinski for the reminder that there are other things to think about.

Mike Anglin (Ward 5) said he’d read the letter. He noted that there were enough local historic districts that it would be worth it for staff to prepare an analysis of property values and taxes collected in the city’s historic districts to determine if the districts played a vital role in economic development.

Stephen Kunselman (Ward 3) indicated that he guessed he hadn’t received the letter, but noted that the writer had spoken at the public hearing on The Moravian project. His recollection was that her comments were quite disturbing with respect to the characteristics of the neighborhood. He felt the letter should be viewed in the context of those remarks. The commentary that Kriss gave on The Moravian is summarized this way in The Chronicle’s report of the April 5, 2010 council meeting:

Introducing herself as a member of the board of the Ann Arbor Area Chamber of Commerce and a member of the Fourth/Fifth Avenue historic district study committee, Rebecca Lopez Kriss urged the council to vote yes [on The Moravian]. As a young professional and graduate student, she said, she did not want to live in a dilapidated old house or in a “white box” out by Briarwood Mall. She questioned the criticism that The Moravian would be out of character with the neighborhood, pointing to the Perry School, the university building and the light industrial uses across the street. She described The Moravian as functioning as a buffer between those uses and the neighborhood to the north. She encouraged people to read Jonathan Levine’s book, “Zoned Out,” which discusses zoning as a tool of exclusion.

Outcome: The council voted at first reading to approve the historic district with dissent from Derezinski, Higgins, and Rapundalo.

Development Approval Process: Display of Plans

Before the council for its first reading was an ordinance revision affecting the availability of site plans for public inspection.

Currently, the city’s code on the approval process requires that up-to-date drawings for site plans be available in the lobby of the city hall 24/7 for a week before public hearings. The proposal recommended by the planning commission would relax the code by deleting the 24/7 requirement and by making clear that there’s not an obligation to continually update the material with any changes that might be made. Material recommended to be deleted is struck through, with proposed added language in italics.

5:135. Public information and hearings.

(2) Area plans, site plans, site plans for Planning Commission approval, PUD site plans, and preliminary plats and land divisions under review shall be displayed in a publicly accessible location in City Hall open to the public 24 hours per day, 7 days each week, for at least 1 week prior to the City Council and Planning Commission public hearings. Plans shall be current at the time of placement and subsequent revisions, if any, shall be available in the planning offices.

Back in the summer of 2009, City Place came before the city council, but was remanded back to the planning commission, due in part to errors the city had acknowledged involving the public information requirements of the city code.

The city’s planning commission has recommended approval of the ordinance change along with other technical revisions. [Chronicle coverage: "Planning Commission: A Matter of Timing"]

During the deliberations on the ordinance revision, Sabra Briere (Ward 1) noted that the issue was of interest to many people in the community – she wished for a more creative solution than simply not requiring plans to be available 24 hours a day. The solution was more restrictive, not more open, and she lamented the fact that the city planning commission had not discussed it at their meeting.

Briere asked Tony Derezinski (Ward 2), who is the city council’s representative to the planning commission, to clarify the thought behind the ordinance change. He deferred to planning staff. Head of planning, Wendy Rampson, took the podium and said she could answer specific questions. Briere noted there are so many technological opportunities available besides making paper copies of blueprints available – for example, making them available on touch screens. The ordinance change means that you have to go to the sixth floor of city hall during business hours. It makes the information less accessible.

Briere wondered why more time had not been invested in coming up with something more cutting edge, instead of just adding a restriction. Rampson said she believed that the lobby display of plans had become somewhat outdated – up until a few years ago, it was the only way to see the plans. But now, she said, all the plans are included as .pdf files as a part of the Legistar system available on the web. So for those who have computers, they can access the information that way. For those who don’t have computers, the public library has public computers available, she said.

Part of the challenge, Rampson said, is that they cannot necessarily guarantee access to the lobby due to security concerns. As far as touch screens, she said, due to budget constraints, the staff had not explored that as an option.

Stephen Kunselman (Ward 3) indicated he shared Briere’s concerns. He asked city administrator Roger Fraser about access to the lobby of the new municipal center, but Fraser said that the details had not yet been worked out.

Outcome: At first reading, the ordinance revision for display of plans passed. To be enacted, the council will need to approve it at a second reading.

Development: Village Green Option Extension

Before the council on June 21 was a resolution to give a brief extension on Village Green’s option to purchase on the First & Washington property. The company has site plan approval to develop the City Apartments project on that city-owned site. City Apartments is a planned unit development (PUD) featuring 156 dwelling units and 244 public parking spaces. The extension goes through Aug. 5, 2010, which is the date of the council’s first meeting in August.

Village Green: DDA Connection

The extension of the purchase option has been part of the discussions between the Downtown Development Authority and the city about the parking agreement under which the DDA manages the city’s parking system. DDA board member Newcombe Clark has pushed for a sunset on the DDA’s commitment to support the City Apartments project as part of the consideration that the city would offer to the DDA in exchange for a $2 million payment that the DDA has already made. The DDA has made a $9 million commitment for the City Apartments project in connection with a public parking deck that is a part of the building.

The council’s meeting featured an update from Christopher Taylor (Ward 3) on the meetings between the city council and the DDA board. Taylor gave a report on the activity of the council’s mutually beneficial committee, which met with the corresponding committee of the DDA to discuss a renegotiation of the parking agreement. He reported that the DDA had revealed a distaste for the idea of taking responsibility for code enforcement beyond the rules that apply to the parking system.

There would be further conversations, reported Taylor, about the DDA taking responsibility for enforcement of parking regulations. The DDA had expressed enthusiasm for serving as the development engine for downtown city-owned lots, and would be developing a more complete proposal for how that would be implemented. Later in the meeting during an additional communications slot on the agenda, Taylor indicated to his council colleagues that there would be a working session on the topic of the city-DDA discussions just before the council’s next regular meeting, scheduled for Tuesday, July 6.

Village Green: More Background

The cover memo to the resolution on Village Green that was considered by the council on Monday cited the overall economic climate and the difficulty in obtaining financing as the reason for Village Green’s inability to move forward. The fact that Village Green has named financial partners on the deal is cited as part of the reason for granting the extension.

From Village Green’s letter, included in the council information packet:

We have selected a joint venture equity partner, LaSalle Investment Management, a national institutional investor based in downtown Chicago with an extensive portfolio of real estate and a strong financial standing in the industry. Like many institutional investors, they were reluctant to invest in real estate over the past 18 months due to the turmoil in the economy. Now that they are ready to get back into investing in apartments, they are excited about the opportunity to complete a transaction in the City of Ann Arbor with Village Green. LaSalle has full discretion of a fund that has over $400MM of equity to invest, so they have the ability to execute in an expeditious and streamlined manner. [...]

As it relates to construction financing, we now have a term sheet from U.S. Bank with whom Village Green has completed 4 other new construction projects in the past eight years. We work with their downtown Chicago office where they understand the Midwest and Ann Arbor markets. Also, we now have a source to provide gap financing in the event that the primary construction lender cannot provide sufficient proceeds. That source is the general contractor, Skanska.

Village Green: Council Deliberations

Sandi Smith (Ward 1) asked for more of an update than what’s in the packet. What exactly was the short extension for? Tom Crawford, chief financial officer for the city, indicated that the short extension was to be used to establish a timeline of events – a reasonable timeframe for the next steps to occur. There would be a more comprehensive document, Crawford said, by the time the item reappeared on the council’s agenda. Smith wanted to know if there was an anticipated start date for the project. Crawford said that a start date was a little too soon to talk about at this point. In response to Smith’s desire to know some ballpark idea, Crawford asked Jonathan Holtzman of Village Green to come to the podium to answer questions.

Jonathon Holtzman of Village Green appeared before the council to answer questions about the extension for the purchase option Village Green has on the city-owned property at First & Washington.

Holtzman indicated that Village Green’s delay on the project was a function of the financial markets and not any lack of commitment to doing the project. Their financial partners seemed now open to receive letters of inquiry to talk about transactions. At the end of last year, he said, Village Green had done a project in Minneapolis – the only new apartment construction in the entire Midwest.

A project Village Green expects to start in Chicago, he said, could be the only new apartment construction for this year. Ann Arbor, he said, would be in excellent company. He noted that Village Green had been an owner-operator of apartments in Ann Arbor since the early 1970s. The request for an extension, he said, was to be able to work directly with the city staff to re-engage the fire department, the building department, the architects and engineers, to create a very specific timeline so that they can respond with a detailed list of milestones.

The problems from this point, Holtzman said, were not expected to be financial, but rather the normal problems between a developer and a city. Holtzman said the list of milestones would be the way of measuring whether Village Green deserved an extension.

Stephen Kunselman (Ward 3) said that for him it was déjà vu – it reminded him of the project on the old YMCA site [William Street Station]. That developer had had milestones, too, said Kunselman. And at that time the economy was supposedly in good shape. [The city council eventually pulled the plug on William Street Station when the developer missed milestones. It is now the subject of a lawsuit that the developer brought against the city, although major elements of that suit have already been dismissed.]

Kunselman said he wouldn’t be supporting the short extension – it would require staff time. That planning staff time would wind up being charged as overhead under the municipal service charge. And that was important, he said, because the council was not amending the budget to accommodate the staff work. It was different from the residential parking permit program the council was considering that evening, which required amendment of the budget so that city staff could work on that project.

Kunselman stated that under an option agreement, typically a developer would put some money down as a down payment. “Would you be willing to pay … so that the taxpayers aren’t paying for this effort of ours to continue this charade of a partnership?” Kunselman asked Holtzman. Mayor John Hieftje interceded and suggested that Tom Crawford might be able to address the question. Kunselman stated that the council had been down this road before and it had not come to fruition – they need to go in a different direction. He suggested that new direction was to take the design specifications for the project and put them into a deed restriction on the city-owned property, then put it up for sale with those restrictions. Now is the time to try that, Kunselman said.

It was city administrator Roger Fraser who eventually addressed Kunselman’s question. Fraser said that the city would not be providing anything beyond what they’d provide any developer at this point, which would be a review of the pending approvals that would be necessary once the construction plans were submitted, and what timelines would be in connection with those plans. There would be no extraordinary efforts, said Fraser – it would simply be a normal plan review and estimation of what it would take to get this job done. The city would not expect an developer to pay extra for that, said Fraser, to take what is an already-approved project from a planning phase to a construction project.

Kunselman wanted to know what has happened during the last three years. Fraser said that Village Green had been waiting for the financial markets to open up so that they could go forward with the project. He reminded Kunselman that this was one of those rare projects that had received support from the neighborhood. The project meets the objectives of the community, said Fraser, and is a project the DDA is partnering on. Rather than asking for a longer extension, Fraser said, it was only a short-term extension in order to develop a more comprehensive plan with milestones. The idea is that the city would not have to do this again – this would be the last shot, said Fraser.

Kunselman asked if that meant that in August the council would be approving another extension. Kunselman also questioned whether the development of milestones was actually typical of staff efforts with regard to developers in general. Reviewing construction plans is one thing, Kunselman said, but review of construction plans for construction permits does not entail establishing a series of milestones. Fraser indicated that what Village Green was asking for was estimates for time required to perform the various stages of review.

Outcome: The council approved the extension of the option to purchase for Village Green, with dissent from Kunselman.

Public Commentary, Council Responses, Communications

A number of speakers addressed the council at the start of the meeting during public commentary reserved time, and councilmembers had several communications they conveyed.

Communications on Parking Permit Programs

During her communications time, Sandi Smith (Ward 1) indicated that the agenda item that evening would be for a residential parking permit program for the Old Fourth Ward neighborhood. At the council’s next meeting, she hoped, on the council’s agenda would be a residential parking program for the South University neighborhood. [Note: The residential parking permit program was approved, but is not covered in detail in this meeting report.]

Communication on Civil Rights

Sabra Briere (Ward 1) told her colleagues that there was a bill that some legislators were contemplating for Michigan that would be similar to the law Arizona had passed, making it legal for police to ask for IDs. She informed her council colleagues that she would likely be bringing forward a resolution stating the council’s opposition such a law.

Communications from the City Administrator

Roger Fraser, during his communications time, told the council that as the elections were drawing nigh, the absentee ballots were being sent out. [See Chronicle coverage: "Column: A Pitch for Absentee Voting"]

Fraser also indicated that the summer tax bills were being sent out the following week, which are, he quipped, “another joy of summer.” He reminded councilmembers that tax bills could be paid online.

Fraser reported that on June 10 the Center for Independent Living had hosted a picnic in Gallup Park and that over 200 people had attended – they’d taken out canoes and kayaks, he said.

Fraser’s update on the ongoing construction of the municipal center was that work continues on electrical, plumbing, drywall, and bathroom tiling. A lot of work was being done in the basement of the Larcom Building as well, he reported. The streetscape contractor for the Fifth and Division project was working its way past the municipal center work site on Fifth, he said.

The structural steel work is complete for the elevator tower. A barrier had been removed from the third floor, where the administrator and mayor’s offices are located, he said – adding that it is possible now to jump, if the mayor ever felt the need to do so after a council meeting.

The mayor confirmed with Fraser that the construction was still on schedule to be completed and for the city to be out of the leased facility with the county by Jan. 1, 2011.

Comment on Local Ordinances: Vegetation

Tom Petiet introduced himself as the landlord at a property on Arch Street. He suggested to the council that they consider a revision to the city’s ordinance that prohibits vegetation on lawn extensions – the area between the sidewalk and the road – higher than 3 feet. Last year, he said, they’d received notice that a bush at their rental property was four feet tall. They had not been able to act in time, and the city had then cut the bush down to 3 feet tall. They’d gone to court about it, he said, but the court had no latitude in the matter due to the vagueness of the ordinance language, he said, that prohibited any vegetation from being taller than 3 feet. He distributed some photographs of different properties in the general area of the property.

Petiet noted that several cultivated plantings in the area were all in violation of the city’s ordinance, but that they contributed to the beauty of the city and were ecologically sound. He said they do no harm, so he wondered why the ordinance condemns the plantings. As it stands, the police have no alternative but to cite these plantings. Exceptions to the 3 foot height shall be granted in cases where decorative bushes and flowers are maintained which do not hinder automobile sightlines at corners and do not impinge on walkways and roadways. He also suggested that the warning and notification methods be changed – he said they’ve only been given 24 hours from the time they were notified to the time they needed to remediate the situation. In the case of rental properties, he said, the notification should go to the owner of the property, not the address of the property itself.

Later during the council meeting, during her communications time, Margie Teall (Ward 4) indicated that she felt the ordinance needed to be re-examined.

Comment on Local Ordinances: Pedestrian Safety

Kathy Griswold reminded the council that she’d spoken to them in the past about the need to move a crosswalk in front of the King Elementary School from a mid-block location to an intersection. A related issue, she said, was a press release issued by the city of Ann Arbor on June 10 about a program to promote pedestrian safety. However, she said, what sounded like good news actually revealed a superficial understanding of pedestrian safety issues and laws. Three conditions contributed the problem, she said. First is city officials who micromanaged things. Second is an autocratic city administrator, and third is traffic engineers who are required to make decisions based on what is politically popular, she said. Alluding to Petiet’s comments about his experience with the vegetation ordinance, she said the requirements make the professional police force and traffic engineers look stupid – the laws were not being applied consistently and nothing but political games were being played, she said.

At the point where a child is injured or killed due to the political game-playing, she predicted, city officials would then form a task force to make sure this issue is addressed. She therefore wanted to make sure it was a part of the public record that political gamesmanship had been going on for years and that it was wrong. There is a state law that prohibits parking within 20 feet of a crosswalk, she said, but the city itself had configured a crosswalk located next to parking spaces near city hall, then placed a flashing warning sign there to warn motorists.

MICHIGAN VEHICLE CODE (EXCERPT)
Act 300 of 1949

257.674 Prohibited parking; exceptions; bus loading zone; violation as civil infraction. Sec. 674.

(1) A vehicle shall not be parked, except if necessary to avoid conflict with other traffic or in compliance with the law or the directions of a police officer or traffic-control device, in any of the following places:
(a) On a sidewalk.
(b) In front of a public or private driveway.
(c) Within an intersection.
(d) Within 15 feet of a fire hydrant.
(e) On a crosswalk.
(f) Within 20 feet of a crosswalk, or if there is not a crosswalk, then within 15 feet of the intersection of property lines at an intersection of highways.

Returning to the issue of the King Elementary crosswalk, Griswold indicated that Hieftje had recently suggested to her a holistic approach. She said that the city had had a holistic and comprehensive approach in place since the late 1960s in the form of a transportation safety committee and that the committee had recommended the crosswalk be moved, but on Oct. 30, 2010 the city administrator had vetoed a decision to move the crosswalk, instead opting for a “good old boys” approach of studying the problem for maybe another year or two, she said.

During his communications time, Carsten Hohnke (Ward 5) told his council colleagues there was a targeted enforcement campaign for crosswalks going on, with flashing signs at Seventh & Washington and at Fifth & Ann. The signs indicate that it’s local law to require motorists to yield to pedestrians. There would be additional steps taken soon, Hohnke said. [An agenda item proposing an ordinance revision had been stricken from the agenda.]

Comment on Allen Creek Study

Vince Caruso spoke on behalf of the Allen Creek Watershed Group, which he said had produced a watershed management plan for Allen Creek in 2001 that had been accepted by the Washtenaw County drain commissioner’s office, the city of Ann Arbor and the Michigan Dept. of Environmental Quality. He called for a scientific study of the Allen Creek watershed and a remapping of the floodplain. All major watersheds in the Ann Arbor area had been scientifically studied, he said, except for Allen Creek. There was a great desire by some to develop in the floodway, he said, citing the arts community interest in developing the 415 W. Washington property, which has an entrance in the floodway. But he noted that a letter of map revisions from FEMA showed a 33% increase in the floodway, and said the MDEQ did not support building on stilts in the floodway. Southern Michigan had seen several 100-year rains in the last three years, he said, as well as a 500-year rain. After a recent rainfall, Caruso said, there had been 4.5 feet of standing water behind Virginia Park. Scientific groups, he said, had attributed this change in rain patterns to global warming. There are 1,500 homes at risk in the Old West Side, he said.

During his communications time, Mike Anglin (Ward 5) picked up on comments made by Caruso about the Allen Creek watershed. Anglin said it was the largest, yet least studied watershed in the area. He said it was important to understand how much water flows through it – at what points and in what intensities. He acknowledged that there had been a lot of money spent on two projects to address issues in the Allen Creek watershed – at Pioneer High School and in West Park – and the city had been moving forward. But he also stressed the importance of having a scientific study of Allen Creek like the city had for the other watersheds.

Communications on Fuller Road Station

Christopher Taylor (Ward 3) gave an update from the park advisory commission (PAC), on which he serves as an ex officio member as a representative of the city council.

He described how PAC had passed a resolution on the Fuller Road Station after a long discussion, which would be forwarded to the council. He indicated that PAC had expressed a measure of concern that PAC’s role as an advisory body had not been recognized to its satisfaction and would like there to be appropriate consultation with it. The PAC resolution Taylor summarized urged that the complete plans for the station be made public, that there be hearings on the project and that PAC be held harmless with respect to revenue plans. [Chronicle coverage of that PAC discussion: "Park Commission Asks for Transparency"]

Following up on Taylor’s remarks, Mike Anglin (Ward 5), who also serves as an ex officio member of PAC representing the city council, reported that PAC had spent six hours discussing the resolution related to Fuller Road Station. He said that the way the city had proceeded had “upset the stewards of the park system.” Anglin indicated that the mayor had presented his view of the situation directly to PAC. [Chronicle coverage: "Hieftje Urges Unity on Fuller Road Station"]

If Fuller Road Station were not proposed on land designated as a park, Anglin said, they wouldn’t be hearing about it. PAC had indicated that it was not pleased with the terms of the memorandum of understanding signed between the city and the University of Michigan, but that the mayor had indicated it could be renegotiated. The concept had merit, Anglin said, but the vision for the station should have been conveyed to PAC earlier. If there are plans like these, he said, it is important to make them public way in advance.

Later during an additional communications slot, Anglin noted that the city had launched a survey on the PROS plan and had received around 600 responses so far – he said they were hoping for 1,000 responses.

Hieftje clarified that the proposed location for the Fuller Road Station was not on the same side of the street as the swimming pool at Fuller Park. He also said it had not been stressed enough that the university’s contribution to the project would be enough to satisfy the local match requirement for various federal grants. He allowed that the timetable was a “little fluid” depending on when the transportation bill moves through the Congress.

Comment from State Senate Candidate

Thomas Partridge noted that the country had entered the second year of President Obama’s administration, as he introduced himself as a Washtenaw County resident living in Scio Township. He told the council that he was running for the 18th state Senate seat to represent senior citizens, the disabled and veterans – all those without a voice. He called the various awards handed out for local preservation efforts at the start of the meeting “worthy” and said that there were other sites worthy of recognition as well. Those other sites were places where civil rights demonstrations and peace protests had been held. He noted the importance of providing affordable housing, affordable transportation, health care and education to everyone.

Comment on Homelessness

Lilly Au asked the council to consider issues from a balanced point of view. She contended that the historical designation for the houses in the Heritage Row project was not appropriate because there was nothing historically remarkable about them. She asked the city council to consider the supply and demand for affordable housing units – mentioning in particular the loss of 100 units of affordable housing in connection with the demolition of the old YMCA building several years ago. She then described basic conditions of life at Camp Take Notice, a tent city now located west of town near Wagner Road on a public right-of-way. She described in mildly graphic detail how residents made accommodations for going to the bathroom.

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: Tuesday, July 6, 2010 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]

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).