The items often involve technology licensing agreements or leases. This month, all items were approved unanimously and without discussion. They related to the following businesses and organizations: JV Biolabs LLC (sub-lease agreement at 2900 Huron Parkway); Avicenna Medical Systems (contract to license Avicenna’s chronic disease management software, called Avitracks); Echo360 Inc. (contract to license UM technology); and Vortex Hydro Energy LLC (master agreement for collaboration between UM and the startup business).

As an example of these items, disclosure of the contract with Echo360 was triggered because Perry Sampson – a UM professor of atmospheric, oceanic and space sciences – is a partial owner in the firm. Sampson founded the UM startup LectureTools, which was acquired by Echo 360 earlier this year. Echo360 is based in Dulles, Virginia. The contract licenses UM technology to the company for undisclosed terms. In addition, UM is authorized to invest up to $2.5 million in the firm, as part of the Michigan Investment in New Technology Startups program (MINTS) that regents authorized in December of 2011.

This report was filed from the Michigan Union’s Anderson room on UM’s central campus, where the regents held their December meeting.

Ann Arbor city councilmembers Sabra Briere (Ward 1) and Tony Derezinski (Ward 2). (Photo by the writer.)

Part 1 of this meeting report focuses just on the medical marijuana-related items. In a separate article, The Chronicle has analyzed some of the key issues at stake: “Ann Arbor Marijuana Licenses: Who Decides?”

In front of the council for its consideration were three separate agenda items involving medical marijuana: (1) revisions to the city’s medical marijuana licensing ordinance as recommended by the licensing board; (2) direction to the city planning commission to make a recommendation on revisions to the city’s medical marijuana zoning ordinance; and (3) direction to the city attorney to delay enforcement action against dispensaries.

The council unanimously postponed consideration of the licensing ordinance revisions until June 18 – the council’s second meeting that month. During deliberations on the licensing ordinance, several councilmembers expressed concerns about the board-recommended revisions, in particular one that would allow the city council to waive requirements of the licensing ordinance for a dispensary.  In postponing, councilmembers wanted to give the planning commission enough time to act on its direction to review the medical marijuana zoning ordinance and give a recommendation to the city council. The intent is to bring forward any changes to the licensing and zoning at the same time.

The direction to the planning commission passed on a 9-1 vote, with dissent from the Tony Derezinski (Ward 2), who is the city council’s representative to the planning commission. [Marcia Higgins (Ward 4) was absent, leaving the 11-member council with 10 members present.]

The council tabled the resolution directing the city attorney to delay enforcement activities. The tabling was achieved on a 6-4 vote. Voting against the tabling were mayor John Hieftje, Sabra Briere (Ward 1), Margie Teall (Ward 4) and Mike Anglin (Ward 5). A tabled resolution will demise if it’s not brought back for consideration in six months.

The medical marijuana licensing board made recommendations on the award of licenses to 10 dispensaries at its  Jan. 31, 2012 meeting. Given remarks made at the council’s April 2 meeting by Sandi Smith (Ward 1), Carsten Hohnke (Ward 5) and Stephen Kunselman (Ward 3), there’s some sentiment in support of having the council go ahead and vote on those recommendations – before the council considers ordinance revisions in June. But it’s not clear whether the city attorney’s office would be prepared before June to provide advice on the license awards.

This report includes coverage of public commentary and council deliberations on the medical marijuana items, presented in detail. Other agenda items from the April 2 meeting will be included in a separate forthcoming report.

Medical Marijuana: Public Commentary

Luis Vazquez told the councilmembers he was standing before them as an Ann Arbor resident. He noted that he paid a lot of money in taxes. Of all the things the city attorney could and should be spending time and taxpayer money on, the recent actions of the city attorney on medical marijuana dispensaries are questionable – in light of the desire of Ann Arbor residents to have safe access points for medical marijuana, he said. He reminded the council that in 2004, three out of four Ann Arbor voters supported the city charter amendment on medical marijuana, which city attorney Stephen Postema claimed at the time was unenforceable. In 2008, around 4 out of 5 Ann Arbor voters supported the statewide ballot initiative on medical marijuana – it’s an overwhelming majority of Ann Arborites who are saying they prefer an end to the drug war, he contended.

The number of patients who legally use marijuana – and who applied for their patient cards – has outstripped the ability of the state of Michigan to process the paperwork in a timely fashion, Vazquez said. That may force some patients to use the black market to obtain their medicine until they can find a caregiver or find a way to grow their own. Vazquez said that in his view, Michigan attorney general Bill Schuette has vowed to thwart the will of the state’s voters by dragging patients and caregivers into court and proposing that the legislature change the Michigan Medical Marijuana Act to make it more difficult for patients to exercise their health care rights. To hear Schuette arguing for continued prohibition is like listening to Al Capone arguing for continued prohibition of alcohol, Vazquez said. Schuette’s actions have now prompted a ballot petition to legalize all uses of marijuana, he said.

Vazquez continued by saying that the city attorney should not be using his taxes to support the misguided and political actions of the state’s attorney general. He concluded by suggesting that the council consider three actions: (1) require that the city attorney’s office cease and desist action against dispensaries operating in Ann Arbor; (2) place on the ballot for the November 2012 election a measure similar to that passed by Kalamazoo voters – that the city charter be amended so that consumption or use of less than 1 ounce of marijuana by adults is the lowest priority for law enforcement personnel; and (3) appoint a marijuana regulatory commission, which would set quality standards, maximum prices, licenses and other fees, and an enforcement apparatus.

Jamie Lowell spoke on behalf of the Michigan Association of Compassion Centers (MACC). He thanked the council for being so steadfast on medical marijuana issues and working to resolve the challenges that have come up. He pointed out that the Michigan Supreme Court has decide to hear the appeal of the McQueen case. MACC has been invited to file an amicus brief in the case, he said. The court of appeals ruling on the McQueen case has served to cause more confusion and disagreement about how the state medical marijuana act impacts what a municipality may or may not do, he said.

MACC contends that the judges on the court of appeals lacked foundation and erred in their decision, Lowell said. He also indicated that MACC interprets the court of appeals ruling to be narrower than the interpretation by the attorney general and by some prosecutors and city attorneys. So MACC was not surprised when the supreme court decided to hear the case and take a closer look at it. Lowell said it would be appropriate for the council to set aside any implications that the McQueen case is thought to have had, until the supreme court rules.

Lowell also pointed out that state legislators are working on a “local option bill” entitled the Michigan Medical Marijuana Provisioning Center Act. Some legislators backing the bill are part of a bipartisan workgroup. The legislation would require a simple majority to pass (as opposed to the super-majority that would be required to change the voter-approved Michigan Medical Marijuana Act), so they believe it’s viable. During MACC’s discussions with state legislators, Lowell said, he’s repeatedly heard Ann Arbor cited as an example of a community that has embraced the opportunity to help citizens with their health care.

Nancy Wright Maxwell introduced herself as a 30-year Washtenaw County resident. She told the council that she was speaking in support of dispensaries. She said she’d been active her whole life, and she allowed that people might not think she looked like the face of the medical marijuana movement. She’s been a competitive athlete her whole life, she said, and has been playing national tournaments for the last 10-20 years. She’s had a lot of surgeries – three knee surgeries and two hip surgeries. She has chronic pain, she said.

Because she’s a senior executive for an insurance company and travels all over the world, she has limited options, Maxwell said. Vicodin isn’t a viable option, she said, citing the effects on the liver. She said that because she’s an athlete, she doesn’t want to smoke – so having safe, reliable dispensaries that she can trust is important. She doesn’t want to grow marijuana, she said, and did not want any part of that. She’d shown her 73-year-old conservative Grosse Pointe parents her registry card, and said it was a place of pride that she is legal. She said it’s important to be able to walk into a dispensary and get a little “medible,” that takes the edge off her pain so she doesn’t have to take Vicodin. She can no longer take the level of Advil that she’d been taking.

Maxwell allowed that she’d made the bed she was sleeping in with respect to her choice to engage in athletics. Ann Arbor is one of the most amazing places in the world to live – she wants Ann Arbor be a part of the cutting edge of having the model that will allow people to be helped. She allowed that some people will abuse it, and that’s unfortunate, but that’s a reality of every type of business.

Mitchell Elkiss began by saying he’d be offering a slightly different perspective – as a health care provider, a physician. So he had watched the emerging and evolving science of medical marijuana over the years, demonstrating its safety and efficacy. As a caregiver, he takes care of a lot of patients with chronic pain. He also suffers from chronic pain.

So with his doctor’s guidance, Elkiss had identified safe alternative therapeutic options that can be integrated into a whole complex of caregiving. With respect to dispensaries, if you’re going to write or fill a prescription, you need a quality source of whatever it is you’re going to use, he said. It needs to be a reliable source over time, each time you go. It has to be obtained in a safe and secure manner. So one of the things that distinguishes a dispensary from a single caregiver is that a dispensary can offer variety – different strains, medibles and tinctures. That’s not something a single caregiver can legally secure by himself. Elkiss told the council he’s a member of OM of Medicine, an Ann Arbor dispensary, and noted that the professionalism with which the dispensary conducts itself is part of the experience.

He reviewed the importance of finding a safe, effective alternative for the adjunctive use of medical marijuana, noting that it has to be done in a safe and reliable way, requiring special places where the products can be regularly of high quality.

Laurel Hufano introduced herself as a 33-year-old Ann Arborite, born and bred. She loves Ann Arbor and it’ll always be her home, she said. She felt very passionate about it being a safe, tolerant and welcoming place. She’s glad the University of Michigan and its hospital are located here.

Hufano had originally received her patient’s card in 2009 – she has arthritis and disc degeneration in her lumbar spine, along with a misaligned kneecap. She’s also suffered from migraines since she was 20 years old. So she has lived with chronic pain for some time. This year she was diagnosed with idiopathic inter-cranial hypertension. She’s had no positive response from various medications.

Having a medical marijuana patient card has made a world of difference in terms of making her daily pain livable, she reported. Dispensaries are important, because she needs a safe place that she can trust and access easily, and that is accountable to the city and that’s there to support patients. The center she visits has given her better care than many doctors, she said.

Drew Driver addressed the council from a wheelchair. He told the council he has a spinal cord injury. His primary care physician was barred from writing prescriptions for medical marijuana because of the hospital group he was with. So he recommended another doctor. Together they decided that medical marijuana was a good choice to deal with his muscle spasms, his pain and his lack of appetite.

Medical marijuana provides relief for him, Driver said. He said that although he visits Ann Arbor on a regular basis, he’s actually from Gaylord, about four hours north of Ann Arbor. After learning that medical marijuana helped him, he embarked on a mission to help others relieve their pain in a way so that they felt safe. He worked with his local city council, city police, county officials. They had a half dozen meetings about what they’d do – his goal was to have safe access and get dispensaries licensed and zoned properly. They’d come up with rules and regulations that worked for their town – they didn’t want a big marijuana leaf on the signs, for example. They didn’t want dispensaries within 500 feet of schools – that sort of thing, he said. It was a great experience for him, he said, because it got him involved in government and they all worked together and had a good outcome.

They had not actually written city ordinances, because at the time, Gaylord was worried they’d write an ordinance and they wouldn’t have control one way or another. His point, Driver said, was that a lot of other municipalities look to Ann Arbor for guidance – his own community had done that. There would be a lot of other cities who look to Ann Arbor as a leader on this issue. State legislators would also look to Ann Arbor as a leader.

Medical Marijuana Licensing Ordinance Revisions

The council was asked to consider a set of licensing ordinance revisions that had been recommended by the medical marijuana licensing board at its Jan. 31, 2012 meeting. Those recommended changes are included in the report that the licensing board subsequently submitted to the city council. [In the presentation below, the language recommended to be added is in italics, and language recommended for deletion is struck through.]

Licensing Revisions: Completeness, Conditions

The issue of completeness of applications is one that has been a chaffing point between the licensing board and the city staff. City staff were reluctant to present the board with license applications that they did not consider complete.

The licensing board agreed at its Jan. 31 meeting to recommend that the explicit role of city staff in determining completeness of applications be struck from two places in the ordinance [added language in italics; deleted language with strike-through]:

7:504 (4) Following official confirmation by staff that the applicant has submitted a complete application City Council approval of the issuance of a license, a new license shall not be issued to a medical marijuana dispensary until the applicant for the license complies with all of the following requirements…

7:505. If the applicant has successfully demonstrated compliance with all requirements for issuance of a license within 10 weeks (70 calendar days) after the date of City staff’s official confirmation that the application for a license was complete City Council’s approval of a license, the city administrator or designee shall grant renewal of an existing or issue a new license…

At the licensing board’s Jan. 18 meeting, the idea was entertained to remove staff from part of the process, by requiring that all the application materials be forwarded directly to the board, instead of to the city planning staff. Ultimately, the board weighed the volume of actual work it would take for board members to handle application materials, concluding it was more than a clerical task.

The board also agreed to a recommendation making explicit that there is flexibility in the kind of conditions that can be set.

7:502 (7) … The Board shall annually send to City Council a proposed resolution recommending either approval or rejection of each complete license application. A recommended resolution may set conditions for approval. The conditions may include a waiver by City Council of any provision or provisions of the licensing ordinance, and/or the imposition of a new provision or new provisions, if the public interest so requires.

Licensing Revisions: Entry for Inspection

The board agreed to recommend a change to make explicit that requests from the city to inspect a dispensary would be complaint-driven:

Pursuant to a complaint, an authorized person shall consent to the entry into a medical marijuana dispensary by the Building Official and zoning inspectors for the purpose of inspection to determine compliance with this chapter pursuant to a notice posted in a conspicuous place on the premises two (2) or more days before the date of the inspection or sent and by first class mail to the address of the premises four (4) or more calendar business days before the date of the inspection.

Licensing Revisions: Number of Licenses, Frequency of Recommendation

At its Jan. 31 meeting, the licensing board grappled with the tension between having a single annual recommendation on licenses (as the ordinance now specifies) versus a rolling recommendation as applications are submitted. The board agreed not to suggest changing from the process described in the ordinance as an annual recommendation for the award of licenses.

The board settled on capping the number of licenses at 20, which is the maximum number specified in the ordinance for the first year.

… but not more than 20 medical marijuana dispensary licenses shall be issued in the first year and shall be capped at that number.

Also recommended was a standardization of the timing requirements for applications – in some places there’s a 70-day condition but in others it’s a 90-day condition. The board agreed to recommend making that timing requirement uniformly 90 days.

Licensing Revisions: Council Deliberations

Sabra Briere (Ward 1) is the city council representative to the medical marijuana licensing board, so she led off the deliberations by reviewing how the licensing ordinance revisions had come to the council. She summarized them by saying that most of the changes were clarificational, but called her council colleagues’ attention two substantive changes – the cap at 20 licenses and the council’s ability, in the context of a license recommendation for a specific dispensary, to waive provisions of the licensing ordinance or add a new provision to the licensing ordinance.

Because only 10 dispensaries had applied in the first year, the board saw no reason to increase the number. With respect to the ability of the council to waive or add provisions to the licensing ordinance, Briere said it was not a recommendation about what provisions should be waived or added.

Sandi Smith (Ward 1) asked Briere what the impetus was for imposing a cap. Briere explained that the cap of 20 had been established by the council for the first year only. The board had been asked to recommend a number going forward. The recommendation to set the cap at 20 amounted to a recommendation to make no change, Briere said.

With respect to the other revision to allow waivers and additional requirements, Briere described how there was rigidity with respect to the way some people were attempting to apply the ordinance to existing conditions. Because those conditions weren’t being applied by the council (the governing body), she said, but by city staff just trying to figure out the right thing to do, the board didn’t want to say what new conditions might indicate making a waiver, but felt it should be within the council’s authority to do that without conflicting with the ordinance. What you run into, she said, is the licensing board’s sincere effort to anticipate things that can’t be anticipated.

Carsten Hohnke (Ward 5) asked Briere if she thought it would be useful to separate out the proposed actions into different motions. He identified the change that would make inspection “pursuant to a complaint” as one that some people might feel is substantive, as well as the two that Briere had identified. Briere responded by saying that one of the possibilities was not to vote on the changes that night. Her bias was to take up any changes to the zoning ordinance at the same time as the licensing ordinance.

Tony Derezinski (Ward 2) said he was somewhat troubled by the revision that would allow for the waiver or imposition of an additional requirement by the city council. He characterized it as amending an ordinance through a simple resolution. [By the city charter, ordinance revisions require votes by the council at two separate meetings and a public hearing before the second vote. A resolution can be passed by the council at a single meeting.] He said he had concerns about that. The licensing ordinance was, he said, to say the least hard fought and well thought out. There were a lot of compromises that were made, he said. He was troubled by the idea of altering an ordinance through a simple resolution and would not support it on that basis.

Jane Lumm (Ward 2) also expressed concerns about the idea of waiving provisions of the licensing ordinance. She wanted to understand what the change was meant to accomplish. She found it of concern to be routinely waiving ordinance provisions. Briere told Lumm that Lumm was understanding the ordinance “moderately correctly.” But Briere went on to clarify that she did not know if the licensing board felt very strongly about whether there should be a specific ordinance change associated with a waiver or a new provision. The board did feel that there were no criteria given for granting a license, and the lack of criteria of evaluating a license created a clear conflict “of the board.”

That is, Briere said, board members felt like all they could do, more or less, would be to see if all elements of the applications were present. There were not criteria offered by the council in the ordinance. And the board didn’t develop criteria, because the board didn’t have any guidance to develop criteria. As a result, she said, the board felt that if the council wants criteria, it should be able to say, for example, this dispensary would be too close to that dispensary, even though no criterion has been set that says dispensaries can’t be within 500 feet of each other.

Briere reiterated that her preference would be to introduce the revisions and then postpone them, to discuss zoning changes at the same time.

Lumm followed up with a question about the revisions that would strike language about the completeness of applications. She wondered why the change was needed. She felt that before council could act, it needs to know if the application is complete. Briere explained to Lumm that what the change does is ensure that the council has a consistent role. It’s the council that approves a license, not the staff, Briere said. The change clarifies what the final step is. The council won’t consider an application that hasn’t been through the licensing board, she said.

Mayor John Hieftje remarked that if the council were going to postpone the licensing ordinance revisions, he didn’t want to spend a lot of time discussing it that night.

Licensing Revisions: Council Deliberations – Postponement

Briere then made a formal motion to postpone the licensing ordinance revisions. She suggested that the postponement be to a date no later than the middle of June. The reason for the ambiguity was because of the subsequent resolution that the council would be considering, that asks the planning commission to evaluate the zoning ordinance for possible changes. She did not want to put pressure on the planning commission to act.

Christopher Taylor (Ward 3) wondered if a postponement to a date certain could be achieved with a “not later than” phrase. Hieftje suggested making it June 18 – the second meeting in June.

Derezinski said he supported the postponement. He wanted to see the issue he’d raised addressed [about the idea of essentially revising an ordinance through a resolution]. The ordinance language had gone through “a meat grinder, or a sausage grinder,” he said, so to amend it by a simple resolution in the context of a license approval gave him a lot of concern. That gives the council a lot of latitude to act in the “public interest,” he said. Derezinski expressed concern about the vagueness of that phrase, as well.

Stephen Kunselman (Ward 3) also supported postponement. He said he shared Derezinski’s concern over the waiver of a provision of the licensing ordinance. It struck him as far-reaching, he said.

Outcome: The council unanimously postponed the medical marijuana licensing ordinance revisions until June 18.

Direction to City Attorney on Enforcement

On the council’s agenda was a resolution to “delay all enforcement activities against medical marijuana dispensaries and cultivation facilities except for claims that they violate Section 5:50.1(3) of the City Code [zoning regulations], until the Council amends or rejects amendments to the zoning and licensing ordinances for medical marijuana.”

The resolution had been twice-previously postponed. On March 5, the council did not arrive at the agenda item until after midnight, due to lengthy deliberations on the four-party countywide transit agreement. So on that occasion the council opted to postpone until they were mentally fresher. And on March 19, three of 11 members were absent, and the prevailing sentiment on the council was that postponement would be appropriate, in order to allow those three absent members to vote.

Direction to City Attorney: Background

To evaluate compliance with the Michigan Medical Marijuana Act (MMMA), the city attorney’s office required that dispensaries submit with their license applications a clear statement of exactly how their business models would conform with the MMMA. [For analysis of the role of the city council compared with the role of the city attorney and the licensing board in the licensing process set up by the city council, see "Ann Arbor Marijuana Licenses: Who Decides?"]

For example, Cannabis Counsel, the attorney for MedMarx at Arborside, included a statement explaining its MMMA conformance in the wake of Michigan v. McQueen (Compassionate Apothecary). An Aug. 23, 2011 court of appeals ruling on the case has been interpreted by many authorities to mean that no medical marijuana dispensaries are legal. [.pdf of letter from Cannabis Counsel regarding Arborside's business model] The McQueen case has been accepted for review by the Michigan Supreme Court, which means that it’s not yet settled case law. And the broadest interpretation of the McQueen case – that it bans all dispensaries – is itself controversial.

The Cannabis Counsel letter lays out why the court of appeals in the McQueen case found that the Compassionate Apothecary business model was not in compliance with the MMMA: The problem was that Compassionate Apothecary did nothing to “assist” patients in administering or using marijuana, beyond exchanging marijuana for money. In contrast to Compassionate Apothecary, argues Cannabis Counsel, Arborside does assist patients in the manner described by the court – by assisting the patient “in preparing the marihuana to be consumed in any of the various ways that marihuana is commonly consumed.” Those ways include providing patients with “cleaned prepared de-stemmed cannabis including pre-rolled joints, medibles which have been inspected, tested, cleaned, grinded and rolled, or cooked in combination with foodstuff.”

The Ann Arbor dispensaries met the city’s request to submit with their applications an explanation of their compliance with the MMMA. And on Jan. 31, 2012, the city’s medical marijuana licensing board voted to recommend licenses to 10 dispensaries. Yet after that, when dispensary owners felt like they’d completed the application process with the final step to be a vote by the city council, the city attorney’s office sent out letters demanding additional data.

Among the questions posed to all dispensaries in the letters are the following: “Does any person or entity deliver marijuana to [Dispensary Name]? If so, does [Dispensary Name] ever pay, donate, or in any way give money to the person or entity who delivers the marijuana or to anyone else? If so, to whom is the money paid, donated, or given and how much?” [.pdf of set of letters]

Dispensaries have balked at the additional data request, arguing that the information is sensitive and the collection of such data by the city was explicitly removed by the city council during the legislative process that resulted in approval of the licensing and zoning ordinances. But the city is currently not granting Chapter 55 zoning compliance permits to license applicants – on the grounds that compliance with the MMAA cannot yet be verified.

The licensing board met on Feb. 24 in response to the new letters, and asked that the resolution, which the council was considering for the third time on April 2, be voted on by the council.

Direction to City Attorney: Deliberations

Sabra Briere (Ward 1) led off deliberations by sketching out the background of the licensing board’s meeting on Feb. 24, describing it as an unanticipated meeting. The board felt very strongly that the role of the city attorney’s office needed to be clarified, and the only body that can do that is the city council, Briere said. [The city attorney is one of two positions hired directly by the city council. The other position is city administrator.]

Sandi Smith (Ward 1) expressed sympathy with the intent of the resolution, but wanted to offer an additional resolved clause that would allow the resolution to be rescinded at any regular or special meeting called for that purpose. That amendment was accepted as a “friendly amendment,” which did not require a vote of the council.

Tony Derezinski (Ward 2) cited the same issue he’d raised earlier, in connection with the proposed licensing ordinance revisions – it’s a resolution that has the effect of changing an ordinance the council has passed. It says don’t enforce the law as the council wrote the law, Derezinski contended. With respect to the idea that the enforcement would be delayed until the council decides what to do, Derezinski felt that’s pretty “loosey-goosey” and that it left open the possibility that enforcement could be delayed for quite some time – until licensing ordinance revisions are decided on. The council had passed an ordinance, and the city attorney is obliged to enforce it, Derezinski said, so he’d be voting against the resolution.

Addressing the amendment proposed by Smith, Carsten Hohnke (Ward 5) asked if it’s an action reserved for the council in any case – to call a special meeting and rescind a resolution. Briere confirmed that was the case – it’s a belt and suspenders approach.

Responding to Derezinski’s concern about the indefiniteness of the delay in enforcement, Briere pointed out that by its decision to postpone the ordinance revisions until June 18, there was a date in the future by which time the council expected the issue to be settled.

Christopher Taylor (Ward 3) stated his belief that the status of medical marijuana in the state law as currently articulated by the courts is inconsistent and at odds with the way that most Ann Arborites would like it to be. He included himself in that view. That resulted in a tension between the council’s action and the state of the law generally. He characterized the resolution as “wandering towards” that tension and seeking to resolve it. But he said he did not believe that the council should do that. The council is a body that is subordinate to state law. The council has also enacted local laws and he felt that until the council chooses to change the law, the law should be enforced. So he said he would not support the resolution.

Mike Anglin (Ward 5) asked for clarification of the request of a delay. He asked what information the city attorney was requesting of dispensaries – was it information that’s supposed to be protected? Briere confirmed that this was the case. The letter sent by the city attorney’s office requested the names of individuals involved in providing medical marijuana to dispensaries and other information as well. She said that for her part the line was crossed when the city began seeking information that it’s not supposed to be seeking.

As the legislation was being crafted, Briere noted that the council had talked about whether to require dispensaries to maintain lists of patients or people growing marijuana. The council learned that if it did collect such a list, it would in any case not be able to confirm that someone was allowed to grow marijuana, or have a patient card, because that information is restricted and the state would not release it. For the city’s purposes, they could not match a name with patient or caregiver numbers.

Briere said she could appreciate the desire of the city attorney’s office to verify that a dispensary operation is in compliance with the Michigan Medical Marijuana Act, but indicated she felt it was as difficult for the city attorney’s office to do that as it was for the licensing board to develop any criteria by which to evaluate applications.

It shouldn’t be sufficient that someone merely fills out all the paperwork in the right order in order to get a license, she said. But the board didn’t try to set criteria, because there were so many other issues in front of the board. The city attorney’s office is, through its recent letter, trying to set those criteria – which includes the collection of information that the council had agreed it shouldn’t collect. That caused a problem for the licensing board and it caused a problem for her, Briere concluded.

Derezinski invited city attorney Stephen Postema to tell his side of the story, because he’d been mentioned as the staff person involved. In an aside to Derezinski, Briere pointed out that she’d cited the city attorney’s office, not Postema.

Postema then spoke at length on the issue, characterizing his office’s letters as simply trying to verify that a dispensary is in compliance with state law. He argued that the council should be considering whether to award licenses to dispensaries recommended by the licensing board, not thinking about revising the licensing ordinance.

… frankly I don’t know why, under the ordinance, the business licenses aren’t before the council. Ordinarily they’d come there. So again, this is all sort of backwards in one sense, because what they’re trying to do is get a license. They can’t operate right now, they’re not allowed to operate at all – without a license. And that is what they should be wanting to be in front of you, so you can rule on it. So if they do comply with state law, they can get a license. So asking them for basic information is part of what needs to be there. And that’s nothing surprising. The fact that the licensing board somehow took offense to this, that’s because they’re operating in a different realm in some ways than what I’m being asked to do. So there’s nothing surprising there.

[Postema's claim that the lack of a license, while an application is pending, precludes operation of a dispensary is contradicted by the ordinance language, which specifically allows a dispensary to operate while its application is pending. For more detail, see "Ann Arbor Marijuana License: Who Decides"]

Postema expressed puzzlement that the licensing board was recommending that compliance with the MMMA be struck from the zoning ordinance. [The zoning ordinance issue was discussed by the council later in the meeting.]

With respect to the sensitivity of the information that his office was requesting, he contended that dispensary owners have been told specifically that they can disguise the information in “the way it’s talked about in the ordinance.” The ordinance provides for unique alphanumeric codes to be used in labeling as follows:

(4) All marijuana delivered to a registered qualifying patient shall be packaged and labeled as provided in this chapter. The label shall include:
(a) a unique alphanumeric identifier for the person to whom it is being delivered;
(b) a unique alphanumeric identifier for the registered primary caregiver who is delivering;
(c) a unique alphanumeric identifier for the medical marijuana cultivation source of the marijuana;

[In asking "... does [Dispensary Name] ever pay, donate, or in any way give money to the person or entity who delivers the marijuana or to anyone else? If so, to whom is the money paid, donated, or given and how much?” the city attorney is apparently seeking to establish whether a “sale” of marijuana is taking place at the dispensary. The McQueen case turned in part on the court’s view that the dispensary in that case was not providing assistance to patients in the medical use of marijuana beyond the provision of the raw material and was thus engaged merely in the sale of marijuana.]

Briere countered Postema’s contention that the names could be disguised by pointing out that the letters sent by Postema’s office asked, “… to whom is the money given?” She said that she understood that to mean, “… give me the name of the person …” And that’s how dispensary owners and the licensing board had understood it, she said. Briere recalled the lengthy council discussion about whether to collect the names of people who were involved.

She also said that given all the intricacies, the licensing board is not asking that other laws not be enforced, but that until the council decides what it will do with the ordinances, it asks the city attorney not to consider anything else. The members of the licensing board don’t want to talk about whether a license should be granted, if they believe that the council will be advised that no licenses should be granted. The board wants the council to consider amendments to the ordinances first. What she hears from the city attorney is that he can’t assert at this time that anybody complies with the ordinances. So why should licenses be considered, if the advice from the city attorney will be that nobody is in compliance? The licensing board was asking the council to deal with the ordinances, she said.

Stephen Kunselman (Ward 3) zeroed in on Postema’s question about why the licenses were not in front of the council. He noted that Briere had implied that if the licenses came before the council, the council would be advised that the dispensaries don’t comply with state law. He alluded to the public commentary about the narrow interpretation of the McQueen case.

So Kunselman asked Postema why the licenses are not in front of the council. Who would bring them, he asked? Would it be the city attorney, or the city administrator? That seems the most rational thing to do, he said, to start moving forward, rather than delaying enforcement. “Let’s get the license applications in front of us,” Kunselman said. Postema then contended, “I think they are in front of you in one sense. I don’t really know why, in the ordinary course of something like this, they would just come in front of you … it is before you, it just doesn’t show up on the agenda.” He indicated that his office would not ordinarily put such an item on the agenda, but that it would happen “automatically.”

Briere responded to Postema’s remarks by noting that the council had been provided with the licensing board’s report, which includes the dispensaries that have been recommended for licenses. She said that if it’s the council’s desire, she could bring the license recommendations to the council for a vote – she could do that as soon as the next meeting. But she noted that if the ordinances have not been resolved, then the council may not believe it has the ability to approve a license. It’s the council’s decision about the order in which things flow, she said. But the licensing board wants the ordinances dealt with first.

Mayor John Hieftje said that in following reports out of Lansing, it seemed to him that the state law is in “flux” – alluding to the supreme court’s decision to hear the appeal of the McQueen case and possible new legislation that’s being considered.

Postema told Hieftje that the state of the law is not in flux. The body of law in the court of appeals has been consistent, he said. Postema said it was not a surprise that the supreme court had agreed to hear the McQueen case. He said most people who are following the case don’t believe the ruling would change. However, he allowed that there could be a change in the analysis of McQueen. He indicated he’d shared his thoughts with people working on new state legislation. He said he was not going to pursue the issue right now. But he repeated his contention that “… right now they don’t have a license, they’re not in compliance with the ordinance.”

Hieftje noted how much time the council had spent on the issue over many months, and said he was reluctant to “do anything concrete” with the possibility that legislation might move in Lansing and court cases still being considered. He said he didn’t want to spend any more time on the issue than they needed to: “We’ve spent way too much time on this issue for what it should have warranted.” He laid that at the feet of the state legislature in Lansing, saying they’d totally dropped the ball on providing guidelines for local governments.

Sandi Smith (Ward 1) asked for confirmation from Postema that other cities have collected fees and issued licenses for dispensaries. Postema allowed that was true. Smith ask if there’d been any state action against the cities that had done that. Postema said he didn’t think there’d been state action.

Smith felt the council’s discussion had provided fodder for the licensing board to reconsider the methodology of trying to get the licenses to go forward. She suggested that the council send the message back that the council wants to look at the licenses – that was the approach she wanted to take. If the state does something, the council could make adjustments as needed.

Carsten Hohnke (Ward 5) expressed concern about the order of things. He indicated support for Smith’s desire to go ahead and have the council consider the licenses. He felt that if the council considered the licensing applications after changing the ordinances, the council might find itself wishing that it had maintained the same ordinance language. He felt that the point is to get some better understanding of how dispensaries are conforming. In the discussion of whether to approve licenses, the council might come up with an approach to dealing with that.

So Hohnke moved to table the resolution directing the city attorney. It did not feel like the right order of things, he said. Hieftje said his concern was that the council could consider the licenses and then find that six months later the rules have changed at the state level and the council would be back to considering the licenses again. “It doesn’t seem to end, is the problem here,” he said. Hieftje was somewhat reluctant to consider the licenses, given what he thinks the city attorney’s advice would be in the context of the state law. What he liked about the resolution is that it says basically, “Listen, there’s nothing really wrong right now, and we haven’t had any particular problems, let’s give ourselves some time …”

Hohnke said it would be nice to get direction from the legislature. But absent the consideration of a license, Hohnke said, the need for asking questions about whether there is compliance to support approval of the licenses would be moot. It’s not clear then what might happen that the resolution would address. So Hohnke moved to table the resolution and it was seconded by Smith.

Briere noted that it’s completely in the control of the council to postpone to a date certain or to table. She allowed that the need to bring this back off the table might not exist, if the council evaluates licenses. Things might not be resolved at the state level in three months. To delay this longer than three months seems wrong, she said. If the council wants to see licenses before June 18, it may never need to come off the table.

Christopher Taylor (Ward 3) said that as he understands the status quo, one suspects businesses are operating and people are obtaining medical marijuana under what they believe to be safe and comfortable conditions. He said he had a problem with the idea of ceasing the enforcement of existing laws, so he’d support the tabling.

Outcome: The council tabled the resolution on a 6-4 vote. Dissenting were Sabra Briere (Ward 1), Margie Teall (Ward 4), Mike Anglin (Ward 5) and mayor John Hieftje.

Given the sentiment expressed by Smith, Hohnke and Kunselman, there is at least some interest on the council in seeing the license recommendations come before the council. However, the city attorney has told at least one councilmember that his office would not be prepared to give advice on the issue at least until June.

Direction to Planning Commission

Another resolution on the April 2 council agenda would direct the city planning commission to review the medical marijuana zoning ordinance, including the licensing board’s recommended change. The one board-recommended change is to strike the following sentence: “Medical marijuana dispensaries and medical marijuana cultivation facilities shall be operated in compliance with the MMMA (Michigan Medical Marijuana Act).” [.pdf of the recommended zoning ordinance change. For analysis of the implication of striking the sentence, see "Ann Arbor Marijuana Licenses: Who Decides?"]

The discussion at the licensing board’s Jan. 18, 2012 meeting on this issue included concern expressed by dispensary owner Chuck Ream, who indicated that deleting the phrase could cause alarm and attract unwanted attention to Ann Arbor if it were incorrectly perceived as sending a message that Ann Arbor’s dispensaries would not be following Michigan’s medical marijuana law.

Tony Derezinski (Ward 2) led off deliberations on April 2 by saying that with the action the council had just taken – postponing the licensing ordinance revisions and tabling the direction to the city attorney – giving direction to the planning commission didn’t make sense. He said that action should be postponed.

Sabra Briere (Ward 1) pointed out that one reason for postponing the licensing ordinance revisions was to allow time for the planning commission to consider the medical marijuana zoning ordinance. There was no other reason to postpone it. So she did not encourage postponing the resolution.

Christopher Taylor (Ward 3) asked if there was any reason to think the planning commission would not take action on the licensing board’s request in due course. Briere said that if the council were to ask the planning commission to take a look at the recommended change, the commission would take some action.

Taylor followed up by saying that his understanding was that the ordinary course of things would have the planning commission considering the licensing board’s request [without involvement of the city council]. He asked if the licensing board had communicated its request to the planning commission. Briere indicated that it’s the council that would make the request, not the licensing board. Taylor questioned whether the planning commission really would not consider any zoning change unless it’s been specifically requested by the council. Briere replied that this was the order in which she’d been told she had to do things. Based on her conversations with the city attorney’s office, this was the order in which things needed to go.

Jane Lumm (Ward 2) asked if there were a legal reason why for the recommended change to delete the explicit mention of MMMA compliance. She felt it was not an unreasonable requirement to include in the zoning ordinance. She wondered if the suggestion was that dispensaries don’t need to be in compliance with the MMMA.

Briere explained that during the course of the application process, the licensing board members learned that in part because of that specific clause, that [in the city attorney's view] each license applicant had to prove they were in compliance. The rest of the zoning ordinance has requirements that mirror the requirements in the MMMA. But the specific clause prevented any of the dispensaries from obtaining a zoning compliance permit – because they couldn’t, to the satisfaction of the city staff, prove they were in compliance with the MMMA. Without a zoning compliance permit, no application was complete, Briere said.

Postema said he didn’t think it was unreasonable for the process to go to the planning commission and come back to the council.

Carsten Hohnke (Ward 5) said that the merits of the appropriate changes could be discussed later, but he felt that the proper order of things was to send it to the planning commission. Mayor John Hieftje felt it wouldn’t take the planning commission an inordinate amount of time to act.

Derezinski asked if the city council was asking the planning commission to delete the section that had been recommended for deletion by the licensing board. Postema clarified that the resolution was asking the planning commission to take a look at it – it would not require the planning commission to make any particular recommendation. Derezinski asked if this were a case of making a change to an ordinance through a resolution. No, said Postema. Derezinski confirmed with Postema that the planning commission could do whatever it felt was best.

Lumm found the deletion of the sentence confusing, from the perspective of a planning commissioner. Postema noted that any change would need to come back to the council. Briere observed that it’s within the purview of the planning commission to make any recommendation.

May 7 was specified in the resolution as the date by which the planning commission was supposed to act. Mike Anglin (Ward 5) asked if the May 7 date was appropriate. Planning manager Wendy Rampson noted that they’d need 15 days for noticing any public hearing on the issue. Also it might be hard to respond quickly without additional background. It would be helpful to have some additional time, say until the end of May, Rampson said. Hieftje proposed June 1, for which there was general agreement.

Outcome: The council approved the resolution giving direction to the planning commission to review the zoning ordinance over the sole dissent of Tony Derezinski (Ward 2).

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

Absent: Marcia Higgins.

Next council meeting: April 19, 2012 at 7 p.m. in the council chambers at 301 E. Huron. [confirm date]

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Before the June 20 meeting started, Sabra Briere (Ward 1) handed out amendments she'd be proposing to the medical marijuana licensing ordinance. From left: Christopher Taylor (Ward 3) and Carsten Hohnke (Ward 5). (Photos by the writer.)

The first local law stipulates where medical marijuana businesses can be located in the city – it’s an addition to Ann Arbor’s zoning code. The second law establishes a licensing board for medical marijuana dispensaries and sets up an application process for the award of a maximum of 20 licenses to dispensaries in the first year of the program.

On Monday evening, the council undertook amendments to the licensing ordinance that were few compared to massive changes that have taken place at several council meetings dating back to January 2011. On Monday, the labeling requirements for marijuana packaging were changed so that dollar amounts are no longer required.

The council teetered on the edge of postponing the legislation, when city attorney Stephen Postema encouraged councilmembers to delay voting until the Michigan Court of Appeals issued an opinion on a case (Michigan v. McQueen) for which oral arguments were heard on June 7. Despite the support for postponement from mayor John Hieftje, an initial vote to postpone achieved only two other votes. A second vote achieved a total of five votes, leaving the postponement one vote short of the six-vote majority it required.

As some councilmembers observed that the council had invested a disproportionate amount of time on the medical marijuana legislation, Hieftje contended that it had not prevented the council from handling its other work.

On Monday, that other work included a collective bargaining agreement with its police service specialists union, which was an item added just that evening to the agenda. The council also heard public commentary critical of the recent budget approved on May 31 by the council, which includes the layoff of some firefighters and police officers. The meeting was preceded by a demonstration by the city’s public safety employees, at Fifth and Huron streets just outside city hall

The council  also approved two contracts in connection with the East Stadium Bridges replacement project and three purchase orders related to tree care. And the council gave final approval to sewer and water rate increases and a revision to its landscaping ordinance.

The council revised its debt/fund balance policy, and revised its budget to reflect the blending of its economic development fund back into the general fund. Also related to economic development, councilmembers approved the annual $75,000 funding for Ann Arbor SPARK and set a public hearing for a tax abatement for Picometrix.

The council established an affordable housing lien policy and gave initial approval to technical revisions to the city’s pension ordinance. They confirmed appointments to the new design review board, but postponed a vote on setting the design review fee. The council added a work session for July 11, which is likely to include an update on the planned Fuller Road Station.

The council also heard a presentation on a skatepark planned for Veterans Memorial Park.

Medical Marijuana

At Monday’s meeting, the council considered two city ordinances that ensconce medical marijuana businesses with local regulations.

One ordinance concerned zoning – legislation that stipulates where medical marijuana dispensaries and cultivation facilities can set up business. The second ordinance concerned licensing – a law that describes how licenses will be awarded to dispensaries, and how a licensing board will be set up to evaluate applications.

Key features of the zoning ordinance include the requirement that medical marijuana dispensaries must be located in districts zoned as D (downtown), C (commercial), or M (manufacturing), or in PUD (planned unit development) districts where retail is permitted in the supplemental regulations. Medical marijuana cultivation facilities are only allowed in areas zoned as C (commercial), M (manufacturing), RE (research), or ORL (office/research/limited industrial). Medical marijuana businesses are prohibited in a 1000-foot buffer zone around schools.

Key features of the licensing ordinance include a limit of 20 total licenses for dispensaries in the first year – cultivation facilities are not licensed under the ordinance. The license applications will be processed by a five-member medical marijuana licensing board consisting of one member of the city council, one physician, and three other Ann Arbor residents. The license application requires proof of legal possession of the premises for which the license is sought. Licensed dispensaries are required to maintain records on patients for 30 days after marijuana is dispensed, and on cultivation sources for 60 days.

The council’s work on the medical marijuana legislation dates at least as far back as June 7, 2010, when councilmembers convened a closed session on the topic to discuss a city attorney’s memo dated May 28, 2010. The council convened another closed session on July 19, 2010, purportedly to discuss the same May 28, 2010 memo. The council did not publicly discuss the topic until Aug. 5, 2010, when it enacted a moratorium on the use of property in the city for medical marijuana businesses.

Dispensaries that were operating before the moratorium was enacted – and that were allowed under the moratorium to continue to operate – will have a 60-day window within which they can apply for a license after the ordinance takes effect, which is 60 days from publication. Other dispensaries cannot apply until 75 days after the ordinance becomes effective.

Medical Marijuana: Public Commentary

Every council meeting agenda includes 10 3-minute slots at the start of the meeting for which people can sign up to speak. On Monday, some of them addressed the topic of medical marijuana. This public commentary does not count as the public hearing for any issue. Public hearings do not require signing up in advance and are not limited to a specific number of speakers.

Dennis Hayes reiterated a point he’d made at the council’s previous meeting – data from Michigan’s Dept. of Community Health show that over half of registered medical marijuana patients are on Medicaid, Social Security or some other form of support. Ann Arbor should be proud of leading the way to helping them get the medicine they need for relief, he said. About the process of enacting the legislation, he said at the very least, it has been a long slog. He thanked councilmembers Sabra Briere and Sandi Smith, both of Ward 1, for their efforts.

Hayes said that Ann Arbor’s ordinance would be an example for the rest of the state of Michigan. However, he said that the requirement for the dollar amount on labeling needs to be removed. He called the record-keeping that’s been agreed upon appropriate and helpful, but added that he hoped to come back with further suggestions. He allowed that there would be litigation for some time to come, but said it’s now time to move forward.

Chuck Ream noted that if the city could tax medical marijuana, they could hire more police officers. He told the council it’s time to finish the legislation, but it’s important to finish it right. He said he’d previously asked that no monkey wrench from the legal department be thrown into the process, and said the suggestion to delay passage that evening was such a monkey wrench. He allowed that, yes, there would be a ruling that would be handed down, and there’d be another one after that and another one after that. At their last meeting, he told the councilmembers, all the major decisions were done. But he described the zoning ordinance as “still in bad shape.” The zoning ordinance should be made parallel with the licensing ordinance, he said.

A citation for the charter of the city of Ann Arbor should be included, Ream said, saying that it’s not just the Michigan Medical Marijuana Act that enables the local legislation, it’s also the city charter. He said the council should toss out the part about the defenses, exceptions and and immunities. To the phrase “valid registration card,” he asked the council to add “or its equivalent.” He also asked the council to take the dollar amount off the label – that just provides evidence to bust people, he said.

Rhory Gould said he was speaking as a representative of Arborside Health and Wellness. He thanked mayor John Hieftje and the council for developing an ordinance that would serve and protect all. He also thanked all his colleagues – including his attorney, Matt Abel – for diligence in helping to get the ordinance to pass in the right manner. He said he’d previously complained about the length of the moratorium. The current legislation is something that can be used as an example, for other communities in the state, he said. Others will look to Ann Arbor as leaders on how to do things the right way. He stated that he would like one of the available licenses to be awarded to Arborside. He stated that he would “give it his all” to give professional service to everyone. He thanked the council for effort to put the ordinance in place.

Medical Marijuana: Public Hearing

A formal public hearing related to the licensing ordinance. The public hearing on the zoning ordinance had been held previously.

Mayor John Hieftje told the audience before the public hearing started that he thought the medical marijuana ordinances would be postponed. His said his “best guess” would be that the legislation would be postponed. If it were postponed, the public hearing would be continued until it was voted on, but those who spoke that evening would not be able to speak at the continued hearing.

After the vote on medical marijuana, during a recess, Charmie Gholson chats with Stephen Kunselman (Ward 3).

Chuck Ream stated that it was disconcerting to hear that the measure might be postponed. No one knew it was being postponed, he said. He returned to similar comments he’d make during public commentary at the very start of the meeting. He asked the council to include a reference to the Ann Arbor city charter in the legislative intent section. He said that the language in the ordinance that stated the ordinance did not provide for defense against prosecution is “pretty poor language,” when 74% of Ann Arbor residents voted in 2004 to give dispensaries every power that they have. The dollar amount requirement on packaging needs to be removed, he said – that sets up evidence for people to get busted. He hoped that there would be no more foolishness, shenanigans or chicanery.

Charmie Gholson told the council she had not been there for a while, because she’d been ill. Even if someone doesn’t need help to get to the microphone, she said, that doesn’t mean that they’re not struggling with chronic and lethal illness.

She pointed to the renewed federal interest in distribution facilities that the council had expressed at its recent meetings. She said, “We’re in a national battle.” She’s been working on this issue for the last five years, she said. In June, she continued, two reports had been released – one from the Global Commission on Drug Policy and one from Law Enforcement Against Prohibition. The conclusion of those reports was that the drug war has failed with devastating consequences. It’s a U.S. attorney’s job to say, “It’s still working,” she said. She told the council that the reality is, if you start talking to victims of the drug war, you would think that the war is a failure.

Medical Marijuana: Recent Developments – Michigan v. McQueen

City attorney Stephen Postema told the council about a case that’s now before the Michigan Court of Appeals.

By way of background, the case that’s being heard on an appeal by the prosecutor – Michigan v. McQueen (Compassionate Apothecary) – was noted in The Chronicle’s coverage of the council’s Jan. 3, 2011 meeting, when the council deliberated on the licensing legislation. The case was initially heard by chief judge of the Isabella County trial court, Paul Chamberlain, who was asked to consider a request from the Isabella County prosecutor to find that Compassionate Apothecary constituted a public nuisance. In his order filed Dec. 16, 2010, Judge Chamberlain found that “Defendants only operate their business during designated business hours, and as decided above, perform their medical marihuana related conduct pursuant to the MMMA. Therefore, their business does not constitute a nuisance per se.”

In finding that Compassionate Apothecary operated in accordance with the Michigan Medical Marijuana Act, Chamberlain laid out how the Compassionate Apothecary business model, in his view, conformed with the MMMA:

This court is charged with determining whether the patient-to-patient transfers in this case are considered medical use of marihuana, as permitted by the MMMA. Further, the record reveals that only registered qualified patients or registered primary caregivers make such transfers as members of defendants’ business. Members place their marihuana in defendants’ lockers, and the members transfer or deliver the marihuana pursuant to the MMMA. Even when a registered primary caregiver transfers medical marihuana to another member, such caregiver does so under the authorization of the patient to whom he or she is registered. The Legislature did not prohibit such transfers, and such registered primary caregiver conceivably serves as a person who assists a registered qualified patient with using or administering marihuana. MCL 333.26424(i). Therefore, the ultimate issue before this court is whether the presumption listed in MCL 333.26424(d) applies and pertains to the patient-to-patient medical use of marihuana in this case. This court finds that it does.

Postema told the council that a request for an expedited appeal had been made, which had resulted in the hearing of oral arguments two weeks ago [June 7, 2011]. What is significant about the case being heard by the Court of Appeals, said Postema, is that the opinion would be binding if it were published, and it would be the first time that guidance had been provided. He said that based conversations with people who saw the oral arguments, the unanimous opinion of observers was that the ruling would come down quickly, and when it did come down, the business model used in that case would not be found legal. Postema said the sense he got from attorneys who represented dispensaries was they weren’t optimistic. They were predicting a reversal in favor of the prosecutor. He said it’s something the council should consider.

Sabra Briere (Ward 1) asked Postema to explain exactly what the issue was in the Isabella County case. Postema said that the municipality had tried to close down the business, because it was based on patient-to-patient transfer of marijuana, and explained that this is how a number of dispensaries in Ann Arbor operate. Briere followed up by asking Postema to confirm that for both the licensing and the zoning, what the council has proposed is: Everything must be done in accord with MMMA, and that means in accord with any court’s interpretation of it. Postema confirmed that is the case.

Briere asked if the court were to rule that dispensaries can’t exist, what effect would there be on the city’s ordinances? Postema said definitions in the ordinances may need to be altered. He also said that the licensing board set up by the ordinance might need to be given some guidance.

Medical Marijuana Licensing: Deliberations on Postponement

Sabra Briere (Ward 1) said they don’t know a date certain when the Court of Appeals ruling might come down, so the choices on postponement would be to postpone indefinitely or postpone every two weeks. Postema said he felt that in a month, he thought the ruling would come down. At that point, Briere said, she wanted to talk about a few amendments that she wanted to propose, then let the council consider the issue of postponement.

Before considering amendments, mayor John Hieftje wanted more information from Postema. He asked if the pending court ruling could outlaw dispensaries. In responding, Postema contended that if the court struck down the trial court’s ruling, it would end most dispensaries as they exist across the state.

Carsten Hohnke (Ward 5) said there was clearly some benefit in moving forward – the council has been “at this a while.” He wondered what the harm is if the council moves forward and a ruling comes down inconsistent with the city’s ordinance. The language would have to be amended, said Hohnke, either as an existing ordinance or as a pending ordinance – the task would be the same. Postema attempted to respond to Hohnke’s point by saying that the issue for everyone is getting guidance on the state law. It would be useful, however the ruling came down – it’s what everyone has been waiting for, Postema said. The importance that the court was attaching to the ruling was evident from the effort that had been made to expedite consideration of the appeal.

Sandi Smith (Ward 1) said that the council had been working in good faith with voters’ desire, saying the council had hammered it out, and is now ready to cross the finish line. What she was hearing in the city attorney’s remarks is that it’s a matter of how business is done at a dispensary, which is up to them to do. It’s not the council’s job to anticipate when and how the court would rule, and she felt that dispensaries will make their own decisions about their business model.

Marcia Higgins (Ward 4) was not active in the deliberations, but cast one of two votes against the medical marijuana legislation..

Hieftje said he didn’t know why the council wouldn’t take the additional time, if it might be able to make a more informed decision. Right now, he contended, if you want access to medical marijuana you can get it – the moratorium could be extended by one month, which would allow existing dispensaries to continue to operate.

Christopher Taylor (Ward 3) posed a more specific version of Briere’s question to the city attorney. Taylor noted that the pending court decision involves the manner in which marijuana is distributed: Does the pending Ann Arbor ordinance “engage” how dispensaries transfer their marijuana? Postema responded by contending that the court ruling could affect Ann Arbor’s ordinance, depending on how the ruling comes out. A dispensary has to get marijuana from somewhere, he said – a dispensary may get it from “overages” from caregivers, or it might be transferred between patients. Postema went on to say that many dispensaries in Ann Arbor use patient-to-patient transfer in their business model.

Taylor pressed Postema to speak to the issue of whether Ann Arbor’s ordinance engages that question: Does it engage how they get the marijuana? Postema allowed that right now it’s an open question. But he maintained that if the council felt that patient-to-patient transfer is not allowed under the law, then the council would not adopt this kind of ordinance. He went on to say that the attorney general for the state of Michigan, Bill Schuette, had said he felt that patient-to-patient transfer is not allowed, so Postema felt having the court ruling in place would be useful before proceeding.

[Ann Arbor's licensing ordinance defines dispensaries as follows: "'Medical marijuana dispensary' means a building or part of a building where one or more primary caregivers operate with the intent to transfer marijuana between primary caregivers and/or qualifying patients, other than a medical marijuana home occupation or a dwelling unit in which the transfer of marijuana occurs between a primary caregiver and qualifying patient who resides in the dwelling unit as permitted under subsection (7)."]

Stephen Rapundalo (Ward 2), standing, touches base with interim city administrator Tom Crawford.

Stephen Rapundalo (Ward 2) said he agreed with the mayor. He had never understood the rationale of proceeding with this ordinance, when it would be altered by legislation and court decisions. The time invested by the council on the issue of medical marijuana legislation was so disproportionate compared to other priorities. Rapundalo indicated he’d voted for the measure at the polls, but did not see why the council couldn’t wait it out. This is just ridiculous, he said, to keep going forward. So at that point he moved for a postponement, with a second in support of that motion coming from Marcia Higgins (Ward 4).

Briere went back to the question that Taylor had asked Postema – if anything in the ordinance, as written, deals with business practice – because that’s the issue at hand based on his description of the court case. She noted that the proposed licensing board is supposed to set the criteria for licensing and those criteria could reflect any possible court ruling. Postema allowed that was true. But he said that the practice of patient-to-patient transfer is very prevalent, so a ruling could result in the ordinance needing to clarify that. A court ruling could also give guidance to the board, said Postema.

Briere said at the most she was intending to introduce a few amendments, so requested that the council discuss the amendments, and then discuss whether to postpone. So she said she would not support a postponement “at this moment.”

Stephen Kunselman (Ward 3) said he was confused about postponing based on a potential court ruling. He asked what the difference was between a potential for a court ruling on marijuana compared to a recent ruling on the living wage ordinance? Postema said a recent decision on the living wage ordinance was an unpublished opinion, so has no precedential effect. He expected that the opinion in the Michigan v. McQueen case would be published, and thus be used as a precedent.

Taylor said he agreed with Rapundalo that medical marijuana is an important issue, but not the council’s top issue. For Taylor it was a “near call,” but he was in favor of “gutting it out tonight.” And if the council needed to change the ordinance, the council could run that through the ordinary process.

Hohnke agreed with Briere’s desire to consider the amendments first, so he asked if Rapundalo would consider withdrawing the motion to postpone and then reintroduce it. Rapundalo, sitting to Hohnke’s right, shook his head no. Faced then with commenting on the issue of postponement, Hohnke said that while he appreciated the helpful input from the city attorney, he was not convinced of the benefit of postponement, so he would not support it.

Outcome on postponement: The motion to postpone failed 3-7, with Higgins, Rapundalo and Hieftje voting for it.

Medical Marijuana Licensing: Deliberations – Amendments

The council then proceeded to the amendments offered by Briere, which included the following additions [in italics] and deletions [in strikethrough], most notably the elimination of dollar amounts from the labeling requirements:

5:50.1(2)
(a)“Registry identification card” means a document issued by the department that identifies a person as a registered qualifying patient or registered primary care giver

7:506(4)
(e) The date delivery, weight, and type of marijuana and dollar amount or other consideration being exchanged in the transaction;
…
(h) The name of an authorized representative of the medical marijuana dispensary whom a registered qualifying patient can contact with any questions regarding the product and the address, e-mail address, and telephone number of the medical marijuana dispensary of an authorized representative of the medical marijuana dispensary whom a registered qualifying partent can contact with any questions regarding the product.

Outcome on amendments: The council approved all the amendments without significant comment.

Medical Marijuana Licensing: Deliberations (Again) on Postponement

With the main motion to approve the licensing again before the council, mayor John Hieftje said he wouldn’t vote against it, but also said it would be “silly” to pass it. With his frustration apparent, Sabra Briere (Ward 1) asked if he would like another motion to postpone, and the mayor said he would appreciate one. Stephen Rapundalo (Ward 2), however, indicated that he himself wasn’t interested in pursuing a postponement further. So it was Stephen Kunselman (Ward 3) who moved for a postponement, with support from Margie Teall (Ward 4), who seconded the motion.

There was some clarification about the timing of the postponement – it would have been to the council’s second meeting in July. Without further discussion, the council voted and split 5-5, so the motion failed.

Outcome: The postponement failed, because it did not get the required six-vote majority. Voting for the postponement were: Rapundalo, Kunselman, Teall, Higgins, Hieftje. Voting against the postponement were: Taylor, Hohnke, Anglin, Smith and Briere. Derezinski was absent.

Medical Marijuana Licensing: Deliberations on Main Motion

Mayor John Hieftje continued the deliberations on the main motion, expressing his frustration that the postponement had not been achieved. “If this comes back to us and we have to spend any more time on it, I think we’ve done ourselves and the whole city a disservice. We’ve spent a great deal of time on this – a great deal of time.”

Sandi Smith (Ward 1) told the mayor she could respect his concern, but told him, “The work is done. And we’ve gone through this over and over again.” She said that any future revisions could be informed by the licensing board.

Stephen Rapundalo (Ward 2) said it should be no surprise that he would not be supporting the ordinance – he’d hoped there would at least have been a postponement. He said the medical marijuana issues had gotten out ahead of the regulatory environment. He agreed with the remarks of a speaker who had addressed the council at a previous meeting, who had said the council was trying to shove the genie back in the bottle. He didn’t think it was going to work. He said he appreciated the time and effort that Briere and Smith had put into it. But he said the effort – particularly on the part of the city attorney’s office – has been out of proportion with other priorities.

Rapundalo said he thought the current language is still insufficient in terms of regulatory parameters that are needed. Particularly in terms of neighborhoods and health, safety and welfare, he was concerned. He alluded to an example in his own extended neighborhood without specifying the nature of that example.

Dispensaries are not allowed by the Michigan Medical Marijuana Act, and Rapundalo said that allowing them in the ordinance caused him concern. He was also concerned about the city’s exposure and conflict with respect to federal laws. “We’re setting ourselves up for lots of protracted uncertainty and chaos,” he said. The council don’t know what the future will hold in terms of legislation and court decisions, so it’s ridiculous to go ahead with this local ordinance, he said.

The medical issue has become very different from what it was originally envisioned, Rapundalo continued. Many people supported the state ballot measure, but didn’t anticipate dispensaries. He also alluded to a growing illicit trade in obtaining referrals from physicians to get registry cards, which he found quite troubling. Until the state can provide more clarity, he said, there should be no sanctioning beyond what is unambiguously allowed under state law. He said the city should extend the moratorium and take the time to figure out how to put the genie in the bottle.

Sabra Briere (Ward 1) responded to Rapundalo’s remarks by saying there was not a word she would disagree with. Through the entire process it had been eye-opening. She said that many were quite happy not to address medical marijuana with a city ordinance, but the council had two ordinances in front of it. One tells where medical marijuana can be grown and under what circumstances – they’d been told it’s a necessary zoning ordinance. The other sets up a licensing board.

Some communities have been sued because they prohibited dispensaries, Briere said. The council had worked hard to craft something that protects city. There’s a built-in delay. There is a 60-day delay before documents can be filled out by any dispensary. There is another delay before any licenses can be issued, she said. If something happens between now and the time licenses can be issued, then she was happy to pull everything back or part of it back and revise it. The truth is that it’s taken more time than anyone anticipated, and she would like to move on and address other issues.

Hieftje made the point that although the council had spent hours and hours on the issue, it had not kept the council from getting its other work done. He said he was afraid it would soon be back in the council’s lap again. Carsten Hohnke (Ward 5) said he appreciated Rapundalo’s comments, noting that it was a difficult path to navigate between state and federal law. But he said the council had to the best of its ability crafted ordinances to address the ambiguities in the law and he felt that the council had a mandate to do that.

Outcomes: The council voted 8-2 in favor of the medical marijuana licensing ordinance. Dissenting were Rapundalo and Higgins. Derezinski was absent. The vote on the zoning ordinance came out the same way and was taken without significant discussion.

Medical Marijuana: Coda

Towards the end of the meeting, the council came back to the issue of the moratorium by recognizing that the moratorium currently in place extends only through the end of June. The licensing ordinance does not take effect until 60 days after legal publication, which was expected to be Thursday, June 23. After that, existing dispensaries have a 60 window within which they can apply. Others must wait until 75 days after the ordinance takes effect.

Outcome: The council voted to extend the moratorium by 120 days from June 30, 2011.

Collective Bargaining: Police Service Specialist

Added to the agenda on Monday night at the request of Stephen Rapundalo (Ward 2) was a new collective bargaining agreement with its police service specialist union for a contract that goes retroactively from July 1, 2009 through June 30, 2013.

Key features of the contract are no wage increases and participation in the city’s health plan, which requires a contribution by employees to the cost of that plan. There are five members of the police service specialist union. They provide support services to police officers.

Collective Bargaining: Public Commentary

Anne Daws spoke on behalf of Citizens for a Safe Ann Arbor – representatives of the police and fire departments – to urge the mayor and council to reconsider and amend the budget approved at the end of May. [Though the city uses a two-year planning cycle, it adopts budgets just one year at a time. The budget adopted by the council last month for FY 2012, which begins July 1, 2011, is the first year of a two-year cycle.] Current staffing levels for police and fire mean that they are unable to provide the level of service that the community deserves, she said.

Daws said it is unsafe both for emergency responders and for residents to reduce further the number of police officers, 911 dispatchers and firefighters. For emergency responders who live in Ann Arbor, they’re in a unique position, because they work in the city so they understand what’s going on in the community, and they pay taxes so they understand the tax burden, she said. When they go home at night, they rely on emergency responders to keep them safe.

In 2002 there were 196 police officers, Daws continued. Now there are 122 – the administration would eventually like to reduce that to 109. For this year, four police officers have been given pink slips, she said, in addition to two dispatchers and one police service specialist. Officers are now being sent to priority calls – domestic violence, suicidal subjects and fights – without a backup. They’re told a backup will be sent when one can be found. For non-priority calls, like non-injury traffic crashes, the wait can be 30-90 minutes, she said.

For the fire department, Daws continued, in 2002 there were 113 firefighters, and now there are 81. The administration wants to reduce that to 76, she said. The department is using rotating closures of stations – last week, Fire Station 3 was closed. There’s talk of Washtenaw County taking over dispatch operations, she said. That would mean that when citizens of Ann Arbor call 911, she said, their call would go in line with all the people calling from Washtenaw County, including West Willow and Ypsilanti Township.

[During time for communications from the interim city adminstrator, Tom Crawford said earlier this month there had been a press release about possibly transitioning dispatch to the county. Separate from that was the layoff of two dispatchers, Crawford said. Given the closeness in timing, he wanted to point out the distinction.]

Daws concluded by saying that they were honored and proud to serve the community, but at the same time worried to see staffing levels drop to all-time lows.

Stephen Rapundalo (Ward 2), responding a few minutes later to the comments by Daws, said he’s mentioned on numerous occasions that the layoffs could be mitigated in the police and fire departments, if the bargaining units adopted the same health care plan that non-union and some other unions have taken on. It’s within the control of public safety unions, he said, to avert layoffs.

Mayor John Hieftje added that no one is asking the public safety unions to take on diminished health care, just to pay for a portion of it.

Collective Bargaining: Council Deliberations

Introducing the new contract for council approval, Stephen Rapundalo (Ward 2) – chair of the council’s labor committee – said he was glad to bring it forward from the labor committee. The key elements of the contract had been arrived at a number of months ago, he said, before the legislative developments at the state level, which may lead to a requirement that municipalities pay no more than 80% of employee health care costs.

Rapundalo ticked through some highlights of the contract: a retroactive term from 2009 through June 30, 2013; no wage increase; increases in pension contribution by employees in the latter years; and adoption of the city’s health care plan, which includes a contribution from the employees. He expressed the hope that the contract would be a model for the remaining unions, who have not ratified an agreement.

Asked by Sandi Smith (Ward 1), interim city administrator Tom Crawford said the union included five police service specialists who perform a variety of specialized services to support officers. Stephen Kunselman (Ward 3) asked how much money and how many jobs were saved through the contract. Crawford said he did not have those figures handy. When the city does negotiations, it has savings targets, but uses different ways to achieve those savings.

Kunselman said for a four-year agreement, where there is no wage increase, and they pay more for health care, he hoped an estimate could be provided based on just that. Crawford told Kunselman that with respect to evaluating savings, the city has not been paying wage increases. He told Kunselman he could provide an estimate.

Outcome: The council voted unanimously to agree to the contract with the police service specialists. This leaves the contract with the much larger police officers union still unsettled – it expired on June 30, 2009.

Infrastructure: East Stadium Bridges, Barton Dam

Before the council were two contracts related to the East Stadium Boulevard bridges replacement project. The first was a $3,587,456 contract with Parsons Brinckerhoff Michigan Inc. for project management and construction engineering services for the replacement. According to a staff memo, the contract would be paid for out of money from a variety of sources: street repair millage; the water supply fund; sanitary sewer fund; storm water funds; the alternative transportation fund; and the major street fund.

The second was a $609,815 contract with Northwest Consultants Inc. for construction engineering and design engineering services. The staff memo identifies funding sources as the water fund, the sewer fund, the stormwater fund and the street repair millage.

Sabra Briere (Ward 1) noted that she expected the money for the two contracts on the East Stadium bridges project to come from a mix of local street funds and federal funds. Homayoon Pirooz, head of the city’s project management department, indicated that the contract for design and construction engineering is all local money.

Approval for construction of the project would come before the council in September, and that portion would be mostly federal and state funds, Pirooz explained. At the end of the day, he said, the city would be able to capture all the state and federal grants that had been assigned to the bridge replacement project. Briere asked for confirmation that the federal TIGER II grant funds had all been secured. Pirooz said that the TIGER II money had been finalized and the money had been secured. [TIGER is an acronym for the federal program Transportation Investment Generating Economic Recovery.]

Mike Anglin (Ward 5) asked that the public be made aware of which federal funds had been secured. Pirooz told Anglin that $13.9 million had been awarded through the TIGER II federal program and a total of around another $3 million had been awarded by the state of Michigan.

Outcome: The council voted unanimously to approve the two contracts associated with the East Stadium bridges replacement project.

Another construction project on the agenda was a contract with Gerace Construction Co. for $812,500 worth of concrete repairs to Barton Dam. The funding was drawn from the water supply fund, but also required a $366,250 appropriation from the general fund reserve.

Outcome: The council voted unanimously without comment to approve the contract for concrete repairs to Barton Dam.

Tree Care

The council was asked to approve purchase orders with three different companies: Asplundh Tree Expert Co. ($90,000), Advanced Tree Care Services ($40,000) and Owen Tree Service ($30,000) for tree removal, stump removal and tree trimming services. The item resulted in a fairly extended interaction between councilmembers and Craig Hupy, the head of the city’s systems planning unit.

Sabra Briere (Ward 1) wanted to know when the contracts went into effect. Hupy said that the resolution had been drafted in April of this year, with the intention of taking it to the council for its first meeting in May – now it’s the second meeting in June. The city’s fiscal year ends June 30. Obviously, he said, there would be little or no expenditures in FY 2011. Briere confirmed that by authorizing the resolution, the council was not expecting work to be completed in the next nine days.

Briere then brought up the possibility that in the city’s approach to urban forestry, too much emphasis was placed on tree removal, and not enough on maintenance of healthy trees. Hupy responded by saying that tree removal is always a concern. Before a tree is removed, the city has two professionals do an assessment before a decision is made about a removal – removals aren’t taken lightly, Hupy said. It’s clear that with current funding levels, the city doesn’t have a maintenance plan for trimming trees. That’s a desirable long-term goal. He said he hoped that will eventually be a recommendation that comes from the urban forestry management plan.

Carsten Hohnke (Ward 5) returned to the question of when the expenditures would take place – it’s a $160,000 expenditure that will be approved for each of the next three years, including the current fiscal year, which has only nine days left. After some back and forth, the result was that the council voted to amend out the reference to the current fiscal year.

Hohnke asked if there is anything about the approval of the expenditure that locks in a particular approach to tree care. No, answered Hupy.

Stephen Kunselman (Ward 3) said the staff report noted a couple of staff retirements. He asked Hupy what the status is of the city’s forestry department in terms of trucks and people. What are they capable of doing? Hupy told Kunselman that throughout field operations, the city is stretched thin. For example, in water and sewer, he would normally go to a four 10-hour-a-day work week to gain efficiencies. The city can’t do that this summer because there are not enough employees to get coverage. Similarly, forestry is down and park operations is down due to retirements. The city has a number of vacancies posted, but is not being terribly successful in attracting candidates, he reported.

Kunselman wondered how the city council was approving expenditures for the contracts for FY 2013, when it has not yet approved that year’s budget. Interim city administrator Tom Crawford explained that a standard city purchase order contains language to the effect that qualifies the amount, to the extent that funding has been approved by the city.

Outcome: The council unanimously approved the amended resolution.

Water, Sewer, Stormwater Rates

Before the council was final approval for increases in water, sewer and stormwater rates.

In terms of revenue generated to the city, the rate increases are expected to generate 3.36% more for drinking water ($664,993), 4% more for the sanitary sewer ($829,481), and 3.35% more for stormwater ($176,915). [.pdf of complete utility rate changes as proposed]

According to the city, the rate increases are needed to maintain debt service coverage and to maintain funding for required capital improvements.

The city’s drinking water charges are based on a “unit” of 100 cubic feet – 748 gallons. Charges for residential customers are divided into tiers, based on usage. For example, the first seven units of water for residential customers have been charged at a rate of $1.23 per unit. The new residential rate for the first seven units is $1.27.

The city’s stormwater rates are based on the amount of impervious area on a parcel and are billed quarterly. For example, the lowest tier – for impervious area less than 2,187 square feet – has been $12.84 per quarter. Under the new rate structure, that increases to $13.24.

Water usage for Ann Arbor city residents is available online under the My Property tab. [You'll need your account number to access information.]

Water, Sewer, Stormwater Rates: Public Hearing

Vince Caruso introduced himself as a coordinating member of the Allen’s Creek Watershed Group. He told the council that he would support the use of porous pavement – it can handle two inches of rain an hour, has less heat-island effect, and is 70% quieter when vehicles travel across it. He noted that the city has paved Sylvan Avenue with porous pavement. There’s now a proposal to use state revolving funds for four projects, and to use stormwater funds to pay for those projects. He said he does not support paying for the complete road construction cost from stormwater funds – but he would support the incremental cost between using standard pavement compared to porous pavement.

Caruso criticized the fact that there were no funds for watershed studies, but the city wanted to spend stormwater fees on roadwork. He cautioned that the city’s public services area administrator, Sue McCormick, should know something about the issue of using restricted utility funds on purposes for which they are not designated, alluding to a court case, the Bolt decision. The Bolt decision had involved the city of Lansing, where McCormick worked earlier in her career. Some would say it’s appropriate to spend the stormwater money on porous pavement road construction, because it’s a great improvement in stormwater management, Caruso said. But the roads would be built anyway, he said. A watershed study for the Allen’s Creek is needed, he concluded.

Thomas Partridge said he had concerns about raising the water, sewer and stormwater rates given the “flat rate schedule,” without attention to the value of a home or a homeowner’s income. That makes it an anti-democratic tax that harms the most vulnerable members of our society, he said. Partridge called on the council to amend the ordinance to ameliorate the most harmful aspects of flat rate taxing. He also took a shot at the medical marijuana legislation by suggesting that the city charge higher rates and fees to those residents who seek “to turn this great city into one big pot facility.”

Water, Sewer, Stormwater Rates: Council Deliberations

Mayor John Hieftje noted that during the council’s initial deliberations on the rate increases, the question had been raised about whether comparative data supplied by the city staff were relevant to the city of Ann Arbor’s situation. Stephen Kunsleman (Ward 3) had pointed out that most of the communities cited in the rest of southeast Michigan were served by the Detroit Water and Sewerage Department (DWSD).

Hieftje said that other comparative data had been supplied in the meantime, and that it would inform the council’s judgment. Councilmembers did not discuss the additional data, nor was it publicly available at the time of the meeting. [.pdf of rate comparison to Lansing and Grand Rapids] [.pdf of 2009 rate comparison across various communities]

Outcome: The council unanimously approved the new water, sewer and stormwater rates.

Water Laboratory Managment

Connected to the city’s water-related infrastructure was an item that established a $110,026 contract with PerkinElmer Health Sciences for a water laboratory information management system. During council deliberations, Stephen Rapundalo (Ward 2) asked for some clarification, which established that the city’s laboratory is staffed by five people and provides sampling services to the water treatment plant and the wastewater treatment plant, as well as stormwater and special projects. The city provides sampling assistance to the Huron River Watershed Council, and is also running tests for the Pioneer High School stormwater detention project to determine the efficiency of that project, as well as the city’s compost site. In addition, the city provides sampling services to Ann Arbor Township, Scio Township and Barton Hills.

Outcome: The council unanimously approved the contract with PerkinElmer Health Sciences for the water lab information management system.

Landscaping Ordinance

Before the council was final approval to a revision in its landscaping ordinance. The changes are intended to: (1) improve the appearance of vehicular use areas; (2) revise buffer requirements between conflicting land uses; (3) reduce negative impacts of stormwater runoff; (4) improve pedestrian movement within a development site; and (5) preserve existing significant vegetation.

Those benefits are meant to be achieved through several text amendments to the ordinance, which include: adding definitions for “bioretention” and “native or prairie plantings”; allowing the width of landscape buffers to vary; modifying requirements for interior landscape islands; prohibiting use of invasive species for required landscaping; and increasing fines for violation.

The city’s planning commission had given the ordinance change a unanimous recommendation at its March 1, 2011 meeting. The city council gave its initial approval to the landscaping ordinance change at its June 6 meeting. All city ordinances require a first and a second reading in front of the city council, after a public hearing, before final enactment.

During council deliberations, Sandi Smith (Ward 1) noted that as a result of a conversation she’d had with some staff in the field operations area, it was her understanding that sometimes after a landscape island is first built, and a contract expires, it takes a while for someone to adopt it. We tend to see a shabbiness, she said, before it’s brought back up to standard. She wondered if this ordinance would change that. She clarified with Jerry Hancock, the city’s stormwater and floodplain program manager, that the landscape islands to which the ordinance referred were generally in strip mall contexts.

The issue Smith had identified was apparently related to the establishment of rain gardens on city property, where there is initially a contract period for maintenance of the garden – after the contract expires, there’s sometimes a lag time before the city takes it over.

Stephen Kunselman (Ward 3) said Smith raised a good issue. While the private sector does a good job initially, there doesn’t seem to be a lot of teeth for enforcement following up. Trees get proposed for a development and planted, but a few years later, they’re dead. He wanted to know if the ordinance change provided additional teeth for enforcement.

Hancock said the ordinance was not proposing a change to the enforcement activities – it’s complaint-based and there is no inspection program, Hancock explained. If a site plan is proposed to be revised, there is also enforcement at that point, he said. He said the fines are being increased, which may help improve things if enforcement is required.

Kunselman noted that the increase specified is from not more than $500 per violation to not more than $2,500 per violation. He wanted to know if those violations were written by community standards or by code enforcement officers. Hancock said that typically it would be code enforcement inspectors from planning and development services who write up those type of violations.

Outcome: The council voted unanimously to approve the change to its landscaping ordinance.

Fund Balance, Debt Policies

The council was asked to consider adoption of a new fund balance policy to comply with the Governmental Accounting Standards Board (GASB) Statement No. 54, and revision of the city’s debt policy to include two new sections – one on defeasance of debt and another on inter-fund loans.

The new GASB standard requires a finer-grained explication of the components of a fund balance. The breakdown of fund balance categories is: (1) non-spendable – not in spendable form or legally/contractually unable to be spent; (2) restricted – constraints on funds placed by creditors or through enabling legislation; (3) committed – specific constraints placed on the use of funds by the city council (for example, funds set aside by council resolution); (4) assigned – constrained by the intent of the city, but not restricted or committed (for example, those funds to which authority for assignment is given to the chief financial officer); and (5) unassigned – a fund balance that does not fit into any other classification. [.pdf of fund balance policy]

The debt policy as it relates to inter-fund loans includes a provision that addresses the ability of the city to make loans to specific funds from the investment pool. [The city invests its fund balances in a pool, not for each fund.] The policy notes that while such inter-fund loads may be prudent in certain situations, they are ultimately backed by the city’s general fund. So such inter-fund loans should only be approved if the credit worthiness is high for the fund to which a loan is made. [.pdf of debt management policy]

During brief council deliberations, Stephen Kunselman (Ward 3) wanted to know if the council had policies on debt and fund balance prior to this one. The city’s interim city administrator and chief financial officer Tom Crawford explained to Kunselman that these policies have existed previously – they are listed in the budget book every year.

Kunselman asked if debt and fund balance policies are required of other units, like the Ann Arbor Housing Commission and the Ann Arbor Downtown Development Authority. Crawford said that developing such policies is the responsibility of those units. Crawford said he did recall suggesting the DDA adopt a fund balance policy around the time when the underground parking garage was being discussed. Kunselman asked if such a policy would require some amount to be set aside for bond reserve – he noted that the DDA does not have a bond reserve. Crawford explained that it’s the city that issues the bonds, when the DDA bonds for projects, so it’s the city that meets the requirements for any bond issuance.

Outcome: The council unanimously approved the fund balance and debt policy.

Economic Development Fund, General Fund

Before the council for its approval was the authorization to blend the city’s economic development fund – with its fund balance as of June 30, 2010 standing at $967,161 – into its general fund. The move had been planned as part of the fiscal year 2012 budget that the council adopted at its May 31, 2011 session.

The economic development fund was established on June 18, 2007 by a unanimous vote of the city council by transferring $2.18 million from the general fund to the new economic development fund. It was set up to meet the city’s commitment made to Google to pay for up to 400 parking spaces for its employees, for up to four years for an estimated total cost of approximately $2,029,017. Google’s hiring was not as rapid as it had initially projected, and that left a bit under half of the money untapped.

The Government Accounting Standards Board (GASB) No. 54 has also changed the definition of what funds qualify as special revenue funds – the city’s economic development fund was established as such a fund, but no longer qualifies under the new GASB 54 definition, and thus needs to be blended back into the general fund.

The council’s resolution also amended the current fiscal year 2011 budget in some other ways as well, so that expenditures from funds that exceeded budgeted amounts are appropriately covered. Among those expenditures covered were: the International City/County Management Association fire protection study ($54,000); higher maintenance costs for Superior Dam ($35,000); and higher snow removal costs and cleanup from the recent Plymouth Road mudslide and pavement markings ($500,000).

Sabra Briere (Ward 1) asked  how it was that returning the $967,161 balance in the economic development fund to the city’s general fund resulted in an amendment of $1,127,590.  She noted that in the memo, $750,000 is attributed to the transfer from the economic development fund. The city’s CFO and interim city manager, Tom Crawford, said that the city was re-characterizing expenditures coming from the economic development fund “as if it was from the general fund.” So the fund balance and the expenses are being transferred to the general fund. The reason for that is due to the GASB rule, which was anticipated to go into effect for FY 2012. In turns out that the GASB rule is in effect for the end of the current fiscal year.

Briere came back to her original question, which was how the total of $1,127,590 was calculated. Crawford explained that it was the total for all the item adjustments. Only $750,000 was due to the economic development fund, he said.

Stephen Kunselman (Ward 3) concluded that the effect of the resolution was that the city is adding about $1 million to the general fund reserve. Crawford said  it was less than that, but essentially, yes. Mike Anglin (Ward 5) asked for a clarification of non-departmental dollar amounts. Crawford said it was all the economic development fund.

Outcome: The council voted unanimously to blend the economic development fund into the general fund.

Consent Agenda: SPARK, Lobbyist Funding

Among the several items on the Ann Arbor city council’s June 20, 2011 meeting consent agenda were two involving significant city contractors: Ann Arbor SPARK for $75,000, and Governmental Consultant Services Inc. (GCSI) for $48,000.

Items on the consent agenda are considered routine, and include contracts for less than $100,000. They’re voted as a group of items. However, councilmembers may separate out items on the consent agenda for separate consideration. Neither the item for SPARK nor for GCSI were considered separately.

The contact with the economic development agency Ann Arbor SPARK is one that has been renewed annually since the Washtenaw Development Council and Ann Arbor SPARK merged in 2006. Previously, Ann Arbor had contracted with the WDC for the business support services for which it now contracts with SPARK. On June 20, 2005, the city council authorized a one-year contract with WDC for $40,000. This year’s $75,000 contract with SPARK describes the organization’s focus as “building our innovation-focused community through continual proactive support of entrepreneurs, regional businesses, university tech transfer offices, and networking organizations.”

Ann Arbor SPARK is also the contractor hired by the city’s local development finance authority (LDFA), to operate a business accelerator for the city’s SmartZone, one of 11 such districts established in the early 2000s by the Michigan Economic Development Corp. (MEDC). The SmartZone is funded by a tax increment finance (TIF) mechanism, which in the current fiscal year captured around $1.4 million in taxes from a TIF district (the union of the Ann Arbor and Ypsilanti Downtown Development Authority districts, though revenue is generated only in Ann Arbor’s district.) The specific taxes on which the increment since 2002 is captured are the school operating and state education taxes, which would otherwise be sent to the state and then redistributed back to local school districts.

GCSI’s Kirk Profit, a former member of the state House of Representatives, typically makes an annual presentation to the council with an update on state-level legislative issues relevant to the city’s budget situation. Written updates to councilmembers on legislative activity are sent on a weekly or daily basis.

Christopher Tayor (Ward 3), an attorney with Butzel Long, was excused from voting on a consent agenda item involving a $37,000 purchase order for that firm to provide legal services to the 15th District Court. That was achieved by separating out the item from the rest of the consent agenda.

Outcome: The council unanimously approved the consent agenda, including the items on Ann Arbor SPARK and GCSI.

Picometrix Tax Abatement

The council was asked to approve a resolution setting the date for a public hearing on July 18, 2011 for a tax abatement for Picometrix LLC, located at 2925 Boardwalk in Ann Arbor. Picometrix is a supplier of high-speed optical receivers.

The 5-year abatement would apply to $2,434,882 of personal property that Picometrix is acquiring. From the application for abatement: “Due to the projected increase in production volume, the company will need to purchase assets to maximize production and support added staffing.”

The list of personal property included in the application ranges from garden-variety desks and cubicles to digital oscilloscopes and laser beam profilers. If the abatement were approved, it would reduce the company’s annual tax bill for the new equipment by about $16,500 annually. The new personal property would generate approximately $20,700 in property taxes for each year during the abatement period, according to a city staff memo accompanying the resolution.

The industrial development district in which the Picometrix tax abatement is sought was established in 2006.

At its June 6, 2011 meeting, the council held a public hearing on a proposed tax abatement for another company – Sakti3. No one spoke at that hearing, and the council did not take a vote on the abatement that evening. No council vote is currently scheduled for the Sakti3 abatement.

Outcome: The council voted without comment to set the Picometrix tax abatement hearing for July 18, 2011.

Affordable Housing Lien Policy

Before the council for its approval was a policy under which liens can be subordinated and city loans forgiven, in the interest of perserving affordable housing.

Key elements of the policy: at least one city or county lien will be maintained on the property; liens with federal affordability restrictions will be in the highest lien position possible; liens that do not have federal affordability restrictions will be discharged if needed to facilitate reinvestment of outside funding; the city administrator is authorized to approve lien subordinations and lien discharges.

The city council had discussed a specific case related to the forgiveness of loans and subordination of liens at its May 16, 2011 meeting. The context there was the appropriation of funds for the demolition of houses to prepare for construction of the Near North affordable housing project, located on the east side of North Main Street between Kingsley and Summit.

Outcome: Without comment, the council unanimously approved the affordable housing lien policy.

Pension Benefit Change

On the agenda was an item to approve some purely technical changes to its ordinance on retiree benefits for non-union employees. For example, the phrase “three years” was revised to read “36 consecutive months.”

These were not the changes to the pension ordinance that had been described in a resolution passed at the city council’s June 6 meeting. Under those planned ordinance changes for the future, for new hires after July 1, 2011, the final average contribution (FAC) for the pension system would be based on the last five years of service, instead of the last three. Further, employees would be vested after 10 years instead of five, and all new non-union hires would be provided with an access-only style health care plan, with the opportunity to buy into whatever plan active employees enjoy.

The council will need to give a second and final approval of the technical changes to the ordinance change, after a public hearing, at a future meeting.

At its June 6 meeting, the council had passed a resolution directing the preparation of the ordinance change for non-union employees, and expressing an aspiration to eventually extend the same policy to union workers. At that meeting, chief financial officer Tom Crawford stressed that the potential savings to the city would not be realized immediately, but rather five to seven years in the future.

Also at the June 6 meeting, mayor John Hieftje attempted to head off potential criticism that such a policy should have been enacted sooner, by pointing out that the city had reduced the size of its work force over the last several years and had made few new hires in recent years.

In response to a request from The Chronicle, the city provided data on new hires made by the city since July 1, 2006. Of those 121 new hires, 49 are non-union positions; they would have translated into savings had the policy been enacted five years ago.

Outcome: The council voted unanimously to give initial approval to the technical changes in the city’s pension ordinance.

Design Review Board

Before the council for approval was a fee for its new design review process, which is now part of the city’s code. Projects in Ann Arbor’s downtown area, zoned D-1 and D-2, are now subject to a mandatory process of design review, but compliance with the board’s recommendations is voluntary. The proposed application fee was to have been set at $1,000 – to cover estimated mailing costs of $500 and about five hours of city staff time.

A postponement of the vote was moved by Sandi Smith (Ward 1).

Outcome: The council voted unanimously to postpone the vote on the fee until July 5.

Also at its June 20 meeting, the council confirmed the nominations for the initial membership of the design review board: Tamara Burns, Paul Fontaine, Chester B. Hill, Mary Jukari, Bill Kinley, Richard Mitchell, and Geoffrey M. Perkins.

That board met to review its first project two days later, on June 22, 2011, at 3 p.m. The project reviewed was The Varsity at Ann Arbor, a residential project planned for 425 E. Washington St., next to the 411 Lofts building. The site is currently an office building which formerly housed the Prescription Shop. The Varsity is planned to be a 13-story apartment building with 173 units that would house 418 people. It would include 77 parking spaces. [.pdf of The Varsity at Ann Arbor project presentation]

Outcome: The council unanimously confirmed the appointments of the design review board.

Scheduling of Work Session: Fuller Road?

The council was asked to vote on a revision to its calendar for the year to include a work session scheduled for July 11. While the staff memo accompanying the resolution indicates only that the additional session is due to “numerous activities developing in the city,” a likely topic to be addressed at the July 11 session is the city’s proposed Fuller Road Station.

Fuller Road Station would be located on what is now a city-owned surface parking lot south of Fuller Road, east of East Medical Center Drive. The parcel is included as parkland in the city’s park planning documents – some residents oppose the project because it’s on land designated as parkland. The initial phase of the project is being planned by the city and the University of Michigan as a large parking structure with bus bays and a bike station, with plans eventually to build a train station on the same site.

At the council’s June 6 meeting, the Fuller Road Station had received extensive public commentary, despite the lack of any item on the agenda related directly to the project.

Partly in response to that commentary and to remarks from Mike Anglin (Ward 5), at that meeting Sabra Briere (Ward 1) pushed for a city council working session on the project. From The Chronicle’s report of that meeting: “Sabra Briere (Ward 1) anticipated mayor John Hieftje’s reaction to Anglin’s comments [Hieftje has pushed hard for the project] by telling the mayor that she knew he had a lot of thoughts about Fuller Road Station. But she thought the council should have a working session, so that councilmembers can become more knowledgable about the issue. Hieftje indicated that he would look into adding something to the calendar.”

The city’s park advisory commission received an update on Fuller Road Station at its May 17, 2011 meeting.

Outcome: The city council voted unanimously to add a work session to its calendar.

Environmental Commission Appointment

Carsten Hohnke (Ward 5) had placed Jamie Woolard’s name before the council at the council’s previous meeting to serve a three-year term. Woolard brought valuable experience in environmental law, Hohnke said. He encouraged the council to support the appointment.

[Unlike appointments for most other boards and commissions, which are nominated by the mayor, the nomination for spots on the city's environmental commission originate with the city council.]

Outcome: The council unanimously approved Woolard’s appointment.

Communications and Comment

Every city council agenda contains multiple slots for city councilmembers and the city administrator to make updates or make announcements about important issues that are coming before the city council. And every meeting typically includes public commentary on subjects not necessarily on the agenda. The agenda also sometimes includes items of interest on which there is no council comment.

Comm/Comm: Planning Commission Nomination

Eleanore Adenekan‘s name was placed before the Ann Arbor city council as the replacement for outgoing planning commissioner Jean Carlberg, who is ending her 16-year tenure on the commission.

At Carlberg’s final city planning commission meeting – a June 14 working session – no word had been received by staff or commissioners about the identity of Carlberg’s replacement.

The nomination will need to be confirmed at the council’s next meeting.

Comm/Comm: Student Relations Committee Proposal

Michael Benson introduced himself as a resident of Ward 2 and an electrical engineering PhD student at the University of Michigan. He was speaking as the president of the graduate student body. He began by telling the council about a recent encounter some university students in Iowa had with the state’s Senate education appropriations committee. Senator Shawn Hamerlinck told them: “I do not like it when students actually come here and lobby me for funds. That’s just my opinion. I want to wish you guys the best. I want you to go home and graduate. But this political theater, leave the circus to us, okay?” The quotation, read aloud, provoked smiles from councilmembers.

Then Benson reminded councilmembers that in 2005, the council had created a student relations committee – the council appoints and approves its members. The other members, however, are appointed by the Michigan Student Assembly. The student relations committee has not met for a long while, partly due to the fact that the MSA has not appointed members.

Benson proposed amending the method of appointment and expanding the membership of the committee to include some some high school students, some undergraduates, some graduate students and some students in professional schools. He suggested that the mayor appoint all the members, working with partners in the educational community, with the council giving confirmation of those nominations. The committee should meet monthly, he said, and should strive to find solutions to problems affecting the city and student community.

By way of additional background, back in 2005, when the council again contemplated a possible couch ordinance, the issue was seen as a topic appropriate to be addressed by the then newly-formed council-student relations committee. From a Nov. 12, 2005 Ann Arbor News article, “Fire Official Pushes for Couch Ban,” by Tom Gantert:

“The new student relations committee needs to talk about this,” said [councilmember Leigh] Greden, who will serve on that committee. “I want them to look at the issue and talk about ways to solve the problem. We are going to have a dialogue about it.”

Benson, who served on the council-student relations committee in 2008 and 2009 – while he was Michigan Student Assembly’s general counsel – wrote in a fall 2010 email to The Chronicle that the council-student relations committee had not met since Greden’s loss in the Democratic primary election of August 2009. In that email, Benson put responsibility for meeting on both the MSA and the city council:

This lack of meeting is a shared responsibility between the the Michigan Student Assembly and the Council … MSA did not appoint any representatives to the committee in the 2009-2010 academic year and the two Council members did not attempt to hold a meeting nor to ask that the MSA appoint its members. To my knowledge, the current MSA administration has not appointed either a City Council Liaison or the student membership of the student relations committee. As a comparison, when I was serving as MSA’s student general counsel, we appointed the student members of the committee in the spring, directly after taking office at the end of the Winter 2008 term.

The city council’s current representatives on the student relations committee are Carsten Hohnke (Ward 5) and Stephen Kunselman (Ward 3).

Benson had also reminded the council in an April 5, 2010 turn at public commentary that the student relations committee had not met in over a year at that point.

Comm/Comm: Skatepark

At the start of city council meetings, a slot called “introductions” is used by the council to invite guests to give short presentations or to hand out proclamations. At Monday’s meeting, Scott Rosencrans – former chair of the city’s park advisory commission, who is now working as a board member of the Friends of the Ann Arbor Skatepark – gave the council an update on that group’s efforts. He began by thanking the council for their support in collaborating on a government grant application.

By way of background, the council decided at its March 21, 2011 meeting to re-prioritize two grant applications the city was making to the Michigan Dept. of Natural Resources and Environment (MDNRE). The result of that re-prioritization was that a grant for the proposed skatepark at Veterans Memorial Park was ranked higher than the other grant – for improvements to the Gallup livery and park. For both grants, the city applied to MDNRE’s Michigan Natural Resources Trust Fund.

The city’s park advisory commission recommended approval of the applications at its March 2011 meeting. [Chronicle coverage: "PAC Supports Grants for Skatepark, Gallup"] The argument for changing the rank order of the prioritization was based on the opportunity to leverage $400,000 of matching funds from Washtenaw County Parks & Recreation, which will expire unless the skatepark’s construction is under contract by Jan. 1, 2012.

At the council’s June 20 meeting, Rosencrans alerted the council to Go Skateboarding Day at Wheeler Park. [It took place the following day, June 21, from 4-8 p.m.] He also told the council about merchandise sales that support the skatepark: T-shirts, coffee mugs and skateboard decks, which are available from a range of local merchants: Acme Mercantile, Launch Board Shop, Play It Again Sports, Vault of Midnight, Roos Roast and Produce Station.

Rosencrans gave a presentation emphasizing that skateboarding is a safe sport. He described in detail the work the Friends of the Ann Arbor Skatepark had done collaborating with the city’s commission on disability issues to ensure that the skatepark facility planned for Ann Arbor would be accessible to everyone.

After the presentation from Rosencrans, Carsten Hohnke (Ward 5) – in whose ward the proposed park location sits – thanked Rosencrans. Hohnke said he continued to be impressed by how professionally the Friends of the Ann Arbor Skatepark have moved the project forward. He asked Rosencrans what kind of helmets or pads might be required. Rosencrans told him that based on past experience serving on the park advisory committee, those kind of rules are produced by a rules committee working with city staff and the commission. He said if he were on such a committee, he’d recommend that helmets, wrist pads, elbow pads, and knee pads be required.

Comm/Comm: Housing, Not Skating

During public commentary at the start of the meeting, Thomas Partridge introduced himself as an advocate for the disadvantaged and called on the public to get behind the movement to give due priority to matters most paramount to those who are disabled. A priority item should not be the “risky sport” of skateboarding, he contended. Priority should instead be given to planning and constructing affordable housing, providing a countywide public transportation system and extending affordable educational services to all members of the public.

Partridge called on the council to bring about a truly equitable health care system. Partridge said we need to support the effort to recall Gov. Rick Snyder and to expand it to include the lieutenant governor, the attorney general and other elected officials.

Comm/Comm: West Park Renaming?

Steven Thorp, a former city planning commissioner, began by saying it had been good to see mayor John Hieftje and councilmembers Mike Anglin and Sabra Briere at West Park for the Father’s Day get-together. He thanked the city for organizing event. He said that city park planner Amy Kuras and the planning staff deserve many thanks. He noted that the park is around 100 years old – it was once a farm. It’s near Allen Creek, near the place where the first settler cabins were located. The park’s eastern boundary is also the downtown boundary.

Thorp told the council that he and Bob Dascola would like to offer “Central Park West” as the new name for the park. Based on an informal survey of friends and neighbors, there’s support for that idea, he said. The name offers an association with one of the most beautiful and famous urban parks in the world. He noted the park’s “Olmsteadean vistas” and forested places, broad play areas, curvilinear path system. Thorp encouraged the council to give it some thought, so that maybe that name can come about.

Comm/Comm: Library Lot

Alan Haber said he had not visited the council recently, but wanted to remind them that there’s still great enthusiasm for a place in the center of town for meeting, gathering, and for cultural events. When the RFP process for the Library Lot was terminated, he said, residents were promised a robust public process to look at the future of the city-owned lot, but have not heard anything from council or the DDA, he contended. [For recent Chronicle coverage of how the Downtown Development Authority is working to put together that process, see "DDA Preps Downtown Ann Arbor Process" and "Ann Arbor DDA Continues Planning Prep"]

Haber told the council that the public is continuing its own process to develop a vision for a gathering place. He’s been told it’s the most valuable piece of property in town and that the city should get top dollar for it. But it’s so valuable, he said, that it should not be sold at all. There’s plenty of room around downtown for density. A central park would be a complement for that. He said he’s also been told that the need to sell the land is based on $5 million of investments in foundational support for something to be built on the top of the structure. He contended there’d been no authorization to build anything.

[Later during council communications time, Carsten Hohnke (Ward 5) questioned the dollar figure for the investments, saying his recollection was that the extra foundation strength was a lower figure. The city's chief financial officer Tom Crawford indicated he did not recall off the top of his head what the figure was. Contacted after the meeting, Susan Pollay, executive director of the DDA, told The Chronicle that a dollar figure isolating the cost of the beefier footings had not been calculated.]

Comm/Comm: Recall Gov. Snyder

Thomas Partridge addressed the council at the conclusion of the meeting as an advocate for all those people who are vulnerable in the trying economy and trying political time. He called on the true Democratic members of the council to support the recall of Gov. Rick Snyder.

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

Absent: Tony Derezinski

Next council meeting: Tuesday, July 5, 2011 at 7 p.m. in the council chambers at 301 E. Huron. [confirm date]

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One ordinance concerns zoning – legislation that stipulates where medical marijuana dispensaries and cultivation facilities can set up business. And the second ordinance concerns licensing – a law that describes how a maximum of 20 licenses in the first year will be awarded, and how a licensing board will be set up to evaluate applications.

An effort led by Stephen Rapundalo (Ward 2), mayor John Hieftje and city attorney Stephen Postema to postpone the votes – in light of a future expected court ruling – failed on two separate votes. The first vote on postponement was 3-7. Joining Hieftje and Rapundalo in voting for postponement was Marcia Higgins (Ward 4). On the second vote to postpone, Stephen Kunselman (Ward 3) and Margie Teall (Ward 4) joined the side for postponement, but that left the measure with only five votes. Tony Derezinski (Ward 2) was absent from the meeting. Based on previous deliberations, he would likely have voted for the postponement.

The votes on both ordinances themselves were 8-2, with Higgins and Rapundalo dissenting.

Key features of the zoning ordinance include the requirement that medical marijuana dispensaries must be located in districts zoned as D (downtown), C (commercial), or M (manufacturing), or in PUD (planned unit development) districts where retail is permitted in the supplemental regulations. Medical marijuana cultivation facilities are only allowed in areas zoned as C (commercial), M (manufacturing), RE (research), or ORL (office/research/limited industrial). Medical marijuana businesses are prohibited in a 1000-foot buffer zone around schools.

Key features of the licensing ordinance include a limit of 20 total licenses for dispensaries in the first year – cultivation facilities are not licensed under the ordinance. The license applications will be processed by a five-member medical marijuana licensing board consisting of one member of the city council, one physician, and three other Ann Arbor residents. The license application requires proof of legal possession of the premises for which the license is sought. Licensed dispensaries are required to maintain records on patients for 30 days after marijuana is dispensed, and on cultivation sources for 60 days.

In an amendment to the licensing ordinance made by the council on June 20, a stipulation was eliminated that would have required dollar amounts to be included in medical marijuana package labeling. That amendment was not substantial enough to require the ordinance to undergo an additional reading and approval by the council.

The council’s work on the medical marijuana legislation dates at least as far back as June 7, 2011 2010, when it convened a closed session on the topic to discuss a city attorney’s memo dated May 28, 2010. The council convened another closed session on July 19, 2010, purportedly to discuss the same May 28, 2010 memo. The council did not publicly discuss the topic until Aug. 5, 2010, when it enacted a moratorium on the use of property in the city for medical marijuana businesses.

Dispensaries that were operating before the moratorium was enacted – and that were allowed under the moratorium to continue to operate – will  have a 60-day window within which they can apply for a license after the ordinance takes effect, which is 60 days from publication. Other dispensaries cannot apply until 75 days after the ordinance becomes effective.

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

The body language of Christopher Taylor (Ward 3), with Stephen Rapundalo (Ward 2) seated to his right, reflects that the council's evening on June 6 was a long one.

One ordinance concerns zoning – legislation that stipulates where medical marijuana dispensaries and cultivation facilities can set up business. And the second ordinance concerns licensing – a law that describes how a maximum of 20 licenses in the first year will be awarded, and how a licensing board will be set up to evaluate applications.

Both ordinances have already received the council’s initial approval. But all ordinances require two approvals by the council and a public hearing. If an ordinance is amended in a significant way after the first approval, it needs an additional approval to count as the initial reading and approval in front of the council.

Revisions to the zoning ordinance made on June 6 involved wording changes like including “part of a building” in the definition of a dispensary. They were deemed not substantial enough to re-set the legislation to its first reading. So the council did not take a vote on anything except a set of amendments. The council postponed the vote on the ordinance as a whole, because that would have been the second and final vote, which would have enacted the zoning legislation. The licensing legislation was not able to receive its final approval that evening – and the council would like the zoning and the licensing ordinances to be enacted together.

The licensing ordinance could not receive its final approval, because it underwent substantial changes. Those included eliminating a requirement that effectively made the landlord give written permission for use of any leased property as a medical marijuana dispensary or cultivation facility. Also altered were two record-keeping requirements. A requirement on storing patient records was changed from one year to 30 days, with access to the information limited to patients themselves. And a requirement on cultivation source record-keeping was changed from an indefinite period to 60 days.

At its June 20 meeting, the council may take its final vote on both pieces of legislation.

For a description of the council’s business on June 6, 2011 that was unrelated to medical marijuana, see Part 1 of the meeting report: “Beyond Pot: Streets, Utilities, Design.”

Medical Marijuana Public Commentary

Every time the medical marijuana ordinances have been discussed by the council, public commentary has been extensive. It’s by now a familiar cast of characters who make the trip from the audience to the podium. For example, Chuck Ream’s first appearance before the council dates back at least to February 2010. The Chronicle counts 14 occasions since then, when Ream has appeared before the council.

Tony Keene told the council that he’d filed but then dropped a lawsuit against the city of Ann Arbor. He characterized the lawsuit as premature and apologized for using that mechanism. He said the medical marijuana ordinances are as clear and unambiguous as can be constructed under the Michigan Medical Marijuana Act. In his last public commentary turn at the city council, he said he’d taken a hard line on dispensaries. But he told them that he’d visited every brick-and-mortar dispensary in the city. They’re professionally run, he said.

Keene said he previously would have fought against grandfathering in dispensaries, but would no longer do that. He felt there was no need to pursue mandated testing at each facility. Instead, he suggested using batch testing as part of a third-party testing program. He thanked the mayor and all councilmembers who have managed to balance the interests of the different parties. He said he was proud that Ann Arbor had taken the time to get it right.

Chuck Ream said he hoped that the council could eliminate all the material in the ordinance about cultivation facilities and zoning compliance permits. He also suggested making parallel the title of the two ordinances – zoning and licensing. He noted that in one section of the licensing ordinance, it’s established that the granting of a license does not create a defense against prosecution.

Ream was referring to this section of the licensing ordinance:

7:502. License Required, Number of Licenses Available, Eligibility.
…
(6) The issuance of any license pursuant to this chapter does not create an exception, defense or immunity to any person in regard to any potential criminal liability the person may have for the production, distribution or possession of marijuana.

Ream noted that Ann Arbor’s city charter does establish a defense against prosecution, and that’s what should be referenced in the ordinance. Ream was referring to a passage from Chapter 16 of the city charter:

It is an affirmative defense to a prosecution under this section that the use or intended use of the marijuana or cannabis relieves, or has the potential to relieve, the pain, disability, discomfort or other adverse symptoms of illness or medical treatment, or restores, maintains or improves, or has the potential to restore, maintain or improve, the health or medical quality of life of the user or intended user or users of the marijuana or cannabis. Requirements of this subjection shall not be construed to exclude the assertion of other defenses.

Ream asked the city council to include wording from the city charter. With respect to the landlord permission requirement, said Ream, a verbal assurance should suffice. He also asked that the price not be required on the labels of marijuana packaging. Drug stores don’t put the price on labels. A price on the label “just advertises that it’s steal-able.”

A big concern still is the reporting and record-keeping requirement, Ream said. The request for records should be related to health and safety concerns, he said. Maintaining a list of suppliers for 12 months would be too dangerous. He said that 60 days would be a reasonable maximum.

Rohry Gould thanked the council for their work. He complained, however, about the sheer length of the moratorium on using property within the city for medical marijuana businesses. That moratorium had been established on Aug. 5, 2010 he said. At the time, the length of the moratorium was suggested to be 90 days – now it’s June 2011. [The initial moratorium as proposed by the city attorney's office was for 180 days; at their Aug. 5, 2010 meeting, the council enacted a moratorium for 120 days. That has subsequently been extended multiple times.] The city has come a long way, Gould said, but at this point it’s time to do what’s right and pass an ordinance.

Dennis Hayes told the council that it was nice to be back again speaking before them. He said he did not have much to add to Ream’s comments. The city had come a long way, he said, and was very close to being able to pass an ordinance they can all be proud of and that is consistent with city’s values. He said it’s interesting that we have governments that have time to pick on sick people. A recent U.S. District Court opinion he characterized as using a sledgehammer on a gnat.

Hayes worried about what would happen if the federal government turns its spotlight on a municipality. So he asked the council to find a way to get along without requiring dispensaries to retain as much information for as long. A court decision handed down on June 3 was a tremendous disservice to patients, Hayes said. [U.S. District Magistrate Judge Hugh Brenneman Jr. ruled that the Michigan Dept. of Community Health had to submit to a subpoena issued by the U.S. Drug Enforcement Administration in support of an investigation in the Lansing area.] Hayes stated that many of the state’s medical marijuana patients are on disability, injured or receiving Social Security. We should be protecting them, he said.

During the time for public comment at the end of the meeting, Tom Partridge said that Ann Arbor’s citizens deserve better than to have their occupancy of a multi-family apartment building be threatened by people who would turn it into an illegal drug facility. He said the council was splitting hairs over regulations. People appearing to be advocates of patients, he said, are drug users talking about the bonanza of money to be made. Other cities have not taken on such an assertive stance, he said. Marijuana is an illegal drug, with many unknown effects on the person using it.

Medical Marijuana: Update

City attorney Stephen Postema gave an update on recent developments, at the request of Stephen Rapundalo (Ward 2). Postema characterized the challenge of developing local legislation as trying to hit “a moving target of the law.” While the state Medical Marijuana Act is one thing, federal law is another, he said. He pointed to the ruling that Dennis Hayes had mentioned, when the previous Friday U.S. District Magistrate Hugh Brenneman Jr. had ruled that the Michigan Dept. of Community Health had to submit to a subpoena issued by the U.S. Drug Enforcement Administration, in support of an investigation in the Lansing area.

Postema referred to articles in the New York Times that indicated a renewed federal interest in distribution facilities. Seven different U.S. Attorney opinions on state-level medical marijuana law have reinforced the idea that federal law is supreme, he said. No opinion had been offered from a U.S. Attorney in Michigan yet, Postema said, but none has been requested.

[The U.S. and its territories are divided into districts, at least one per state. In each district, a U.S. Attorney serves as chief federal law enforcement officer for that district. Michigan is divided into an eastern and a western district. Michigan's eastern district, where Ann Arbor is located, is served by U.S. Attorney Barbara L. McQuade. Graham Teall, husband of councilmember Margie Teall (Ward 1) is an assistant U.S. Attorney in Michigan's eastern district office.]

Rapundalo responded to Postema’s remarks by saying that over time he’s increasingly become quite concerned about proceeding down the path the city is on, if a lot of it is eventually turned upside down due to court decisions. He wondered if it wouldn’t be prudent to request an opinion from a U.S. Attorney in Michigan. He floated the idea of postponing consideration until an opinion from a Michigan U.S. Attorney had been received. Postema said he would not address the question of whether it’s prudent for the council to do that. He said he assumed that any opinion would be similar – it depends on what’s asked, he said.

Tony Derezinski (Ward 2) said that a couple of lawsuits have been filed concerning communities that have banned medical marijuana – had any decisions been handed down yet? Postema said no Michigan Court of Appeals decision had been handed down yet in those cases.

Sabra Briere (Ward 1) said the Michigan Court of Appeals is one thing, but the ruling of a U.S. Magistrate is another. She confirmed with Postema that the ruling in the western part of the state to which he’d alluded was simply from a magistrate? Postema indicated that the magistrate is who rules on subpoena and evidence issues and he did not think a U.S. district judge would rule differently.

Briere ventured that to date, there are no cases that are definitive within Michigan. Postema responded that a number of decisions have narrowed the interpretation of the Michigan Marijuana Act – for example, clarifying the definition of a closed, locked facility and patient-to-patient transfer. He said that the state Supreme Court has not ruled on any of this.

Carsten Hohnke (Ward 5) followed up on Rapundalo’s suggestion, asking Rapundalo what he thought the value would be of asking for an opinion from the U.S. Attorney. In all likelihood, Hohnke ventured, a Michigan U.S. Attorney would communicate to what we already understand: federal law has supremacy over state law. That doesn’t change the council’s responsibility to follow through on the state and local level, Hohnke said. He asked Rapundalo if there is something in particular that he feel might result from the opinion.

Rapundalo said he could not presuppose what a U.S. Attorney might render in a letter. Rapundalo said he was not prepared to formally ask for such an opinion. His point was more that he hesitated to go further down the path of enacting local legislation, when changes will be imposed upon the city by the courts and the legislature. The more information he has from sources like the U.S. Attorney, Rapundalo said, the better prepared he felt.

Mayor John Hieftje said he had never seen an issue where cities are being sued on both sides of the issue – by medical marijuana advocates for failing to act, and by the federal government for acting. Postema said the dilemma is extreme – the municipalities are where the “rubber meets the road,” he continued. Communities are trying to do the best they can.

Stephen Kunselman (Ward 3) noted that the state of Colorado is collecting taxes on medical marijuana – and we’re not hearing about Colorado being afraid of federal prosecution. Postema insisted there’s plenty of activity that could be happening. But he said the federal courts have not struck down all of the state legislation, and told Kunselman that his point was well taken.

In an interaction between Derezinski and Postema, it emerged that there is legislation pending on the state level that would add additional restrictions on medical marijuana businesses – for example, prohibiting them from locating within 500 feet of a church. But the legislative process is difficult when it comes to amending a law passed on a citizen initiative like the Michigan Medical Marijuana Act. Changes require a 3/4 majority on a citizen initiative.

Derezinski said that Michigan’s attorney general, Bill Schuette,  has publicly stated his concern about medical marijuana dispensaries. He asked if the Michigan Association of Municipal Attorneys might be a source of information. [Stephen Postema is president of that organization.] Postema said MAMA had not yet voted on a position to take – there was a difference of opinion in the group, he said.

Briere wrapped up the discussion by saying that she would like to go through the process of giving the city’s medical marijuana ordinances the council’s consideration, so that the ordinances would be the best possible legislation that the council could support.

With that, the council began consideration of the zoning ordinance with some amendments that had been delivered to her, Briere said, just before the meeting.

Medical Marijuana Zoning Ordinance

The set of amendments to the zoning ordinance, which was given its initial approval at the council’s Oct. 18, 2010 meeting, primarily involved expanding the definition of a dispensary to include a part of a building, and to expand beyond home-occupation type businesses the range of activities regulated by the zoning code. By way of illustration, from the amended ordinance [added material in italics]:

b) Other Words and Phrases. The words and phrases in this subsection, as used in this section, shall have the following meanings:
…
ii “Medical marijuana cultivation facility” means a building or part of a building where marijuana plants are being grown in compliance with the MMMA, other than a medical marijuana home occupation or a dwelling unit in which marijuana is being cultivated for a qualifying patient who resides in the dwelling unit as permitted under subsection (7).
iii “Medical marijuana dispensary” means a building or part of a building where one or more primary caregivers operate with the intent to transfer marijuana between primary caregivers and/or qualifying patients, other than a medical marijuana home occupation or a dwelling unit in which the transfer of marijuana occurs between a primary caregiver and qualifying patient who resides in the dwelling unit as permitted under subsection (7).

Outcome: The council voted unanimously to approve the amendments to the zoning ordinance regulating where medical marijuana businesses could be established. [.pdf of red-lined zoning ordinance as amended on June 6, 2011] The council then postponed the vote on the zoning ordinance, anticipating that the licensing ordinance would be altered in significant enough ways that its approval would count as the initial approval of the licensing ordinance. The council wanted to ensure that the second and final reading for the zoning and the licensing ordinances took place on the same evening.

What Happened to Buffer Zones?

The zoning ordinance that now awaits the council’s final approval at its June 20 meeting includes a buffer zone around schools:

No medical marijuana dispensary or medical marijuana cultivation facility shall be located within 1,000 feet of a parcel on which a public or private elementary or secondary school is located.

At the council’s May 2, 2011 meeting, Carsten Hohnke (Ward 5) had attempted to get his council colleagues to approve an amendment that would have increased the buffer zone around schools to 1,010 feet. From The Chronicle’s meeting report:

Carsten Hohnke (Ward 5) proposed amending the required buffer between dispensaries and cultivation facilities and schools from 1,000 feet to 1,010 feet. He said that round numbers are not necessarily any better. The 1% difference does a better job of accomplishing what they’re trying to accomplish, he contended. The intent is not to impact existing dispensaries – it’s to make sure they’re not cutting off parts of blocks.

At the request of Tony Derezinski (Ward 2), Hohnke asked Wendy Rampson, head of planning for the city, to explain. Hohnke confirmed with her that the extension of the buffer by 1% would in certain locations help to bring a complete block into the buffer zone. Rampson said there’s no magic number. Sabra Briere (Ward 1) asked Rampson if she’d drafted some maps depicting the 1,010 foot buffer. No, Rampson said, the question came up after they’d looked at the issue. The city has a map showing the 1,000-foot buffer. Briere asked by the next meeting to have maps with 1,000, 1,100 and 1,250-foot buffers shown. She said she’s uncomfortable with a 10-foot change – she found that odd. She noted that Sandi Smith (Ward 1) had actually wanted to decrease the buffer.

At the council meeting, Hohnke did not offer any specific examples of the kind of improvement he’d described as achievable by adding 10 feet to the buffer. After the meeting, in response to a request from Ann Arbor resident Ed Vielmetti, the city made public a set of maps showing buffer zones for different distances. Comparing those maps, it’s clear that a least one case exists where a small increase in the buffer distance would exclude a building from consideration as a cultivation facility or a dispensary – a building whose owner has publicly stated that he’s interested in establishing a medical marijuana facility there.

The top image shows a 1,010-foot buffer. The bottom image shows the 1,000 buffer. The yellow-highlighting, added by The Chronicle, shows the parcel where the gas station is located. The salmon-colored cross-hatching is the buffer zone, originating at Bach Elementary School on Jefferson. (Image links to higher resolution file.)

The building in question is the former gas station on the southeast corner at Second and Liberty streets – located in Ward 5, which Hohnke represents. The city’s Historic District Commission (HDC) approved the demolition of the gas station in February 2009, but that approval had come in the context of considering two other buildings – the two houses adjacent to the gas station. The HDC declined to grant a notice to proceed with the demolition of the two houses.

Morningside Ann Arbor LLC had sought the option of demolishing the three properties in order to expand the surface parking available to the greenhouse annex of the Liberty Lofts building, to make it more attractive to potential retail tenants. In the meantime, the property has remained vacant and is considered somewhat of an eyesore, although some attempts have been made to spruce up the property on a seasonal basis.

A February 2010 Ann Arbor Observer article – “Medical Marijuana Center,” written by John Rosevear – describes how the owner of the parcel, Garth Bolgos, was hoping to establish a medical marijuana center in the building.

While the 1,000-foot buffer zone appears to fall just short of the parcel where Bolgos’ gas station building is located, the 1,010-foot buffer clearly nips the corner of the parcel. However, the definition of a cultivation facility and dispensary in the proposed zoning code is based on buildings not parcels, so an effort to exclude the gas station building would likely need an additional upward nudge to be successful.

On June 6, in any case, the council was not interested in revisiting the issue of the 1,000-foot buffer.

Medical Marijuana Licensing

The amendments to the medical marijuana licensing ordinance were undertaken in large sets of individual amendments that ranged from wording and spelling changes to substantive issues that provoked extended council discussion.

Among the changes the council debated were two significant alterations to the ordinance as it had been amended over the last several months. The first was the time period for record-keeping by dispensaries and the accessibility of those records. The council settled on 30 days in one case and 60 days in another – reducing the period considerably from one year. The council also opted to make those records accessible just to patients receiving product.

The other significant change was to the requirement that someone who leased a property for use as a cultivation facility or dispensary needs to show approval from the landlord for that use. What began as a suggestion for oral approval only was reduced to a simple requirement that someone show they had legal possession of the premises – so showing a lease would suffice.

Medical Marijuana Licensing Amendment – Definitions

The first set of amendments was a wholesale swapping out of all the definitions in the ordinance with the definitions that had been established in the medical marijuana zoning ordinance. The one definition that was saved out for inclusion in the licensing ordinance was one for “authorized person.” From the ordinance as amended:

“Authorized person” means:
(a) an owner of a medical marijuana dispensary;
(b) the directors, officers, members, partners, and individuals of a medical marijuana dispensary that is a corporation, limited liability company, partnership, or sole proprietorship;
(c) any person who is in charge of and on the premises of the medical marijuana dispensary during business hours.

Outcome:The council voted unanimously to approve the new set of definitions.

Medical Marijuana Licensing Amendment – Not Routine

The second set of amendments included some replacements that applied through the entire document. In one case, the acronym for Michigan Department of Community Health was changed to the word “department.”

… MDCH department …

And in another case, the word “caregiver” was struck from the phrase “caregiver registry identification card.”

… caregiver registry identification card …

This set of amendments included other clarifications, among them that inspections are not “routine.”

Except as otherwise provided for the amendment of existing licenses, no license issued under this chapter may be transferred or assigned, and no license is valid for any location other than the location specified in the license.
…
Acceptance of a license from the City under this chapter constitutes consent by the licensee, owners, managers and employees to permit the city administrator or designee to conduct routine inspections …

This set of amendments also separated out sections for the application for new licenses and renewal of licenses.

Outcome: The council voted unanimously to approve the first set of amendments.

Medical Marijuana Licensing Amendment – Owner Support

The amendment began as an effort to relax the requirement that written evidence be presented to show that the owners of a leased property used for a dispensary or a cultivation facility support its use for that purpose. That relaxation of the requirement, as initially proposed by Sabra Briere (Ward 1), took the form of an oral assurance. In the end, the council settled on striking the provision, as follows:

(2) Application Requirements for New Licensee.
…
(g)Proof of applicant’s ownership or legal possession of the premises and, if the applicant does not own the premises, the signatures of all owners on the application indicating that the owners support issuance of a license.

As the council began to contemplate a requirement of an oral agreement, Carsten Hohnke (Ward 5) asked if the verbal certification would provide a means for retroactively verifying that such support was given. City attorney Stephen Postema indicated that oral support would be difficult for staff to deal with as far as record-keeping. He said he understood Briere’s concern that property owners might not want to give a written consent, because it might create legal liability for them. Postema said he would not recommend taking the oral certification approach, because of the problem of keeping records.

Briere suggested that another option was to follow the example of the city of Ypsilanti, which allows a signed lease to qualify as permission. Sandi Smith (Ward 1) agreed with the theory that because of forfeiture laws, a property owner would not be inclined to grant written permission. She suggested striking the requirement altogether, instead of trying to come up with a way to express the oral certification requirement. Smith’s suggestion was accepted as a friendly amendment to Briere’s amendment. That was the final form of the amendment as eventually approved by the council.

Even though oral certification was no longer in play, Tony Derezinski (Ward 2) argued against it, saying the oral certification would be too informal for what the council is trying to achieve. He asked Postema for guidance.

Postema indicated that he did not think property owners would be able to defend themselves – in the event that a prosecution took place by the federal authorities – by claiming they did not know what was happening on their property.

Stephen Kunselman (Ward 3) asked members of the liquor license review committee if lessees have to get permission from lessors to get liquor licenses. He wanted to see some parity in the process – between liquor licenses and medical marijuana licenses.

Stephen Rapundalo (Ward 2) said that for a downtown development authority (DDA) license, he recalled an instance where an applicant filed for an application, but the committee was then notified by city staff that the owner had exercised the condition of the leases, or said that the owner would not support the application.

Postema said that showing the lease is more than just an oral certification – he said he would leave it to the council to decide whether it’s enough. Mayor John Hieftje said he agreed with Postema that the absence of written permission will not protect the owner, but he was not really concerned either way. Hohnke asked why it’s important to have the owner support the license. He saw it as stepping into the relationship between the lessor and the lessee.

Briere told Hohnke that the goal is to make sure that licenses are not granted to someone who is not being honest with the owner of the property about the use of the property.

Outcome: The council voted – with dissent from Tony Derezinski, Stephen Rapundalo, and Mike Anglin – to strike the language requiring explicit consent by the landlord.

Medical Marijuana Licensing Amendment – Application Requirements

The next set of amendments included additional application requirements, among them a zoning compliance permit and a temporary certificate of occupancy.

Outcome: The council unanimously approved the amendment on application requirements.

Medical Marijuana Licensing Amendment – Time Period, Issuance

The next set of amendments dealt with a time period within which the license requirements had to be met (8 weeks for a scheduled inspection for certification of occupancy, and 10 weeks for all requirements) after city staff has deemed a license to be complete.

Once the application is complete and the requirements have been met, city staff issues licenses based on availability – there is a cap of 20 licenses in the first year.

Outcome: The council voted unanimously to approve the time period amendments.

Medical Marijuana Licensing Amendment – Patient Info

Generating extended discussion was an amendment that included various requirements about how marijuana is packaged and delivered. The amendment began life at the council table without a change in the time period for record-keeping.

But that was offered as an amendment by Sabra Briere (Ward 1) right out of the gate. Briere’s amendment to the amendment changed a patient record-keeping requirement from one year to 30 days, and made explicit that the party to whom the information would be available is a patient complaining about the quality of the marijuana. As amended, this is how the record-keeping requirement turned out:

(4) All marijuana delivered to a registered qualifying patient shall be packaged and labeled as provided in this chapter. The label shall include:
(a) a unique alphanumeric identifier for the person to whom it is being delivered;
(b) a unique alphanumeric identifier for the registered primary caregiver who is delivering;
…
(5) All of the required labeling information, including coded registered qualifying patient information shall be maintained by a medical marijuana dispensary for not less than one year 30 days after dispensing, and available to any registered qualifying patient complaining of the quality of the marijuana dispensed.

After parliamentary discussion of the status of Briere’s initial amendment as friendly or not, Christopher Taylor (Ward 3) said he would support the change to 60 days and would be willing to drop it further to 30 days. But he said he understood that the council is in a balancing situation.

Taylor noted that the council’s original concept was an effort to replicate as nearly as possible a pharmaceutical situation. But he said he was comfortable with the amendment, because it’s such an odd situation in the first place. The state law does not address the issue. People using medical marijuana are under no illusion, Taylor said, that they’re taking an FDA-approved product created under good manufacturing processes. He said he thinks there’s  an assumption of risk associated with using medical marijuana. And the reality is, we don’t need to fight it. Briere accepted Taylor’s suggestion to set the time period to 30 days as a friendly amendment to her amendment to the original amendment.

The council then debated Briere’s amendment to the amendment, with the time period at 30 days.

Carsten Hohnke (Ward 5) asked what the concern was that prompted the move from 1 year to 30 days. Briere told him it reduces the period of time for which records had to exist, in the event that federal authorities might want to seize records. She said the record-keeping intruded into a realtionship between the caregiver and patient.

Hohnke also raised the issue that – in the event that there was some bad product – it should be possible to inform other patients who acquired medical marijuana from the same source. Briere explained that the only entity who has the information is the dispensary. Hohnke asked how the city or dispensary would respond to the desire to inform other patients who might be at risk. Briere stated that neither the city nor the county health department has such a mechanism. It seemed to her, Briere said, that the relationship is entirely between the dispensary and the patient. It’s difficult not to have the burden fall on the government, but she was not sure how to do that while preserving patient privacy.

Tony Derezinski (Ward 2) was adamant that the city has some responsibility for health, safety and welfare, if there is a problem. “Relying only on recipients of the product alone to do it, ain’t going to happen,” he said That’s not adequate for him.

Stephen Kunselman (Ward 3) said that in principle he agreed with Derezinski, but he was grappling with the fact that the city has no ability to check the product. He noted wryly that the city would not send a K-9 unit over to determine if the product is proper. The state law is specific about the caregiver-patient relationship – the city needs to stay out of that relationship, so he’d support the amendment. The 30 days allows the patient to go back to the caregiver to determine if the product was proper, he concluded.

Taylor said he appreciated Derezinski’s concern for health, safety and welfare, but it’s a balancing act, with tremendous pressures in both directions. He said he felt that the card carriers know what they’re getting into, and the city is doing the best it can for them.

Mayor John Hieftje noted that some of the booths at the recent Taste of Ann Arbor event on Main Street had opened late, because the county health inspector hadn’t been there yet. He was not sure who the city would send if there was a problem with the product dispensed by medical marijuana dispensaries. He said it was tough to leave it up to the patients. If they couldn’t get their records, would patients need to bring a lawsuit against the caregiver? It’s a tough call, he concluded.

Briere allowed that it is a tough call. However, she noted that one of the things already approved in the licensing ordinance is the licensing board. That body has the task of weighing how licenses should be issued in the future. The board’s experience with actual licensing cases will provide an opportunity to identify possible changes, as it learns what’s needed, she said.

City attorney Stephen Postema chimed in, saying he would caution against 30 days as the record-keeping time period. The licensing board will be unable to get meaningful data, he contended. He said that 30 days is very quick. He claimed the board may need the information and that the city may need to look at it.

Sandi Smith (Ward 1) said she felt the question is: Is it possible for a person with a complaint to register that with the city? She said she felt that when the city has multiple complaints about someone, you have an opportunity to act. You act not necessarily against the grower or the caregiver, but rather against the business, she said, so it’s in the interest of  the business to not be affiliated with people who have complaints against them. Dispensaries are sophisticated operations, she said. And it’s small quantiites delivered on a regular basis, so any problems become apparent quickly, she said. With the provision that someone can complain to the licensing board, she would support the amendment.

Hieftje said his problem is not with the majority of the businesses but with the one that might be shoddily run. That left him with a dilemma. Derezinski said it was in fact a dilemma. He said that what you legislate for is the “bad man.” He compared a 30-day period to the time the council has been working on the ordinance – around a year. Limiting the accessibility of the information to the person who’s getting the product is “cutting off our nose to spite our face,” he said.

Outcome: The council voted to approve the amendment to the amendment offered by Sabra Briere that changed the time period for the record-keeping requirement. Dissenting were Tony Derezinski, Stephen Rapundalo and John Hieftje.

Outcome: The council voted to approve the amendment. Dissenting on the voice vote were Derezinski and Rapundalo.

Medical Marijuana Licensing Amendment – Grower Information

The final controversial amendment involved imposing a shorter time limit on a previously unrestricted record-keeping requirement on cultivation sources:

(10) A medical marijuana dispensary shall keep records of the registered primary caregivers cultivation source from whom it received marijuana in any form for not less than 60 days after dispensing, and shall make the records available to the City upon request to promote health, safety and welfare or to otherwise verify compliance with this chapter.

After some back and forth about the difference between the record-keeping in this section and the record-keeping required for patient information, Carsten Hohnke (Ward 5) noted that the section they were amending provides a chance to identify a cultivation source without making a connection to the patient.

Sabra Briere (Ward 1) noted that she was not insisting that this record-keeping requirement be parallel to the previous one.

Outcome: The council voted to approve the amendment on records about cultivation sources. with dissent from Stephen Rapundalo, John Hieftje and Tony Derezinski.

Medical Marijuana Licensing Amendment – Grandfathering

As the council neared the conclusion of its deliberations, city attorney Stephen Postema told councilmembers that the situation might arise where an existing medical marijuana dispensary, operating before the moratorium was put in place, might find itself located within a zoning designation where such dispensaries are not allowed. Or it might be too close to a school.

Sandi Smith (Ward 1) then proposed the language that addressed the situation Postema described. It would allow for an existing dispensary to apply for a license, as long as the application was for a license at a legal location.

7:504. Application Requirements for New Annual License or Renewal of Existing License; License Requirements for New License and for Renewed License.
(1) Application Submission. …
If the medical marijuana dispensary commenced operation prior to passage of the moratorium in a zoning district where its operation is not permitted under the zoning ordinance, the application shall be for a location in a zoning district where operation of a medical marijuana dispensary is permitted under the zoning ordinance.

Asked by Tony Derezinski (Ward 2) to comment on the idea that the city could face liability if it did not “grandfather in” existing dispensaries, Postema contended that all of the dispensaries were illegal to begin with, because the city had no zoning for them.

Outcome: The council voted unanimously to approve the amendment dealing with dispensaries that exist but that will become non-compliant with the medical marijuana zoning ordinance the city enacts.

Medical Marijuana: Outcome – First Reading Approval

After the last amendment, the council quickly took the vote on the ordinance as amended.

Outcome on the main motion: The council voted unanimously to approve the medical marijuana licensing ordinance as amended. [.pdf of red-lined version of the licensing ordinance as amended on June 6, 2011]

City attorney Stephen Postema indicated to councilmembers that the changes the council had made to the licensing ordinance were significant enough that their approval of it counted only as the initial approval, even though it had previously received initial approval from the council. That meant it would need an additional final approval and a public hearing, he said.

Carsten Hohnke (Ward 5) asked which changes had triggered the need for an additional approval. Postema told him it was both the sheer number of changes, and the fact that some were substantive.

Later Postema asked for some direction on enforcement issues. He ventured that some kind of letter should be sent out to dispensaries after the moratorium expires – he felt it was prudent to begin that process. Sabra Briere (Ward 1) asked him what sort of direction he was seeking – a resolution? Tony Derezinski (Ward 2) suggested that it was premature, given that the ordinance had not actually passed yet.

Derezinski felt it could wait until the council’s next meeting, on June 20.

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

Next council meeting: June 20, 2011 at 7 p.m. in the second-floor council chambers at 301 E. Huron. [confirm date]

Among the amendments to the licensing program was one that reduced a records retention requirement from one year to 30 days.

The medical marijuana zoning ordinance received its initial approval by the council at its Oct. 18, 2010 meeting. The delay since the initial Oct. 18, 2010 zoning vote stems from the city of Ann Arbor’s strategy in legislating zoning and licensing of medical marijuana businesses – that strategy has been to bring both licensing and zoning before the city council at the same time for a final vote.

The context for developing zoning regulations was set at the council’s Aug. 5, 2010 meeting, when councilmembers voted to impose a moratorium on the use of property in the city for medical marijuana dispensaries or cultivation facilities. The council also directed the city’s planning commission to develop zoning regulations for medical marijuana businesses.

Subsequently, the city attorney’s office began working on a licensing system. The council undertook several amendments to the licensing proposal at four of its meetings over the last three months: on Jan. 3, Feb. 7,  March 7 and March 21. The council finally gave its first initial approval to the licensing proposal at its March 21 meeting.

At its May 2 meeting, the most significant amendment to the licensing proposal was to eliminate cultivation facilities from licensing requirements. [.pdf of Michigan Medical Marijuana Act]

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

The postponement of an initial vote to the council’s next meeting, on Feb. 21 22, means that a final vote on licensing could not come sooner than the council’s March 7 meeting. An initial vote on zoning regulations for medical marijuana businesses was already taken by the council at its Oct. 18, 2010 meeting. On Monday, the final vote on those zoning regulations was also postponed to March 7. The council’s pattern over the last two months has been to postpone the final vote on zoning regulations for medical marijuana businesses so that it will coincide with the final vote on licensing.

Betsy and Alex de Parry listen as councilmembers deliberate the question of whether to grant a fee waiver if de Parry resubmits his Heritage Row project to the city.  (Photos by the writer.)

The council also took action on several development-related issues. Without discussion, councilmembers approved an amendment to a contract with Village Green to develop a 244-space parking deck as the first two stories of a 9-story building, City Apartments – a 156-unit residential planned unit development (PUD) at First and Washington. The contract approval is part of a series of milestones that is planned to culminate in Village Green’s purchase of the city-owned land parcel for $3 million by June 1, 2011, and with construction starting later in the summer.

The council also approved an application fee reduction, from nearly $5,000 to $2,000, for the developer of Heritage Row, a residential project proposed for Fifth Avenue just south of William Street – if  the project is resubmitted within 90 days. The resolution began as a fee waiver, but was amended to be a reduction. On resubmission, the project will go through the complete review process, starting with a citizen participation meeting.

The council also took action to implement the city’s new design guidelines for new downtown buildings. It sets a purely voluntary review and compliance process in place for now, with the expectation that the mandatory review process with voluntary compliance will be implemented later.

The council unanimously approved the city’s new capital improvements plan (CIP) after a close 6-5 vote that removed an item calling for an extension to the Ann Arbor municipal airport runway. And one item appearing in the CIP was moved ahead to possible fruition: A possible roundabout for the Maiden Lane and Fuller Road intersection will be studied and engineered under a $460,139 contract with DLZ Michigan Inc.

At Monday’s meeting, the council also authorized applications for federal matching funds to acquire development rights for two greenbelt properties.

And labor issues found their way into the deliberations in two ways. First, Stephen Rapundalo (Ward 2), chair of the council’s labor committee, gave a breakdown of the large disparity between health care costs paid by the city’s fire and police union members as contrasted with the city’s non-union staff, as well as with University of Michigan employees. Second, as part of its consent agenda, the council approved a $54,000 contract with a consultant to study fire protection service requirements in Ann Arbor. The city administrator cited such a study at a recent council budget retreat as useful if the city decides to contemplate a shift to a combined paid-on-call and full-time staff fire department.

Medical Marijuana Licenses

Considered again by the council was a proposed set of licensing requirements for medical marijuana dispensaries and cultivation facilities in the city.

By way of background, at its Oct. 18, 2010 meeting, the council gave its initial approval to a set of zoning regulations for medical marijuana businesses, but it has not yet given its final approval to those regulations. The council’s strategy is to bring both licensing and zoning forward at the same time for a final vote. All new city ordinances require two votes by the council, the second of which is accompanied by a public hearing.

The context for developing zoning regulations was set at the council’s Aug. 5, 2010 meeting, when councilmembers voted to impose a moratorium on the use of property in the city for medical marijuana dispensaries or cultivation facilities. They also directed the planning commission to come up with zoning regulations. Subsequently, the city attorney’s office began working on a licensing system, which the council first considered at its Dec. 6, 2010 meeting.

At its Jan. 3, 2011 meeting, the council heavily amended the licensing proposal. Among the key amendments made at that meeting was one that stripped “home occupation” businesses out of the proposal. At the Jan. 3 meeting, the council also increased a cap on the total number of licenses available to 20 for dispensaries and 10 for cultivation facilities. Another major amendment made on Jan. 3 was the creation of a board to govern the issuance of licenses. However, the council delayed voting on the first reading of the proposal. [.pdf of licensing ordinance language at the start of the Feb. 7, 2011 meeting]

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

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

Medical Marijuana: Public Commentary

At its meetings over the last few months, the council has heard extensive public commentary on medical marijuana, but that commentary does not constitute a formal public hearing, which will be held at the same meeting when the council votes on final approval of the licensing, provided it eventually gives initial approval to the licensing system. At Monday’s meeting, several speakers addressed the issue during time set aside for public commentary.

T.J. Rice introduced himself as the owner of the first dispensary in Ann Arbor – he’d established it at Fourth and Washington on Feb. 2, 2010, he said. He reminded the council that people’s lives and our future is at stake. He told the council he hoped by the end of the evening that the provisions for list-keeping would be written out of the proposed licensing system. He reminded the council of Ann Arbor’s rich history of tolerance for cannabis, pointing to the large plurality of local support for the 2008 state referendum, as well as the 2004 Ann Arbor city charter amendment. He asked the council not to forget the city charter amendment in the process. He allowed that his past felony conviction for cannabis is real, but that his concern is for patients and he hoped the council would make wise decisions.

Dennis Hayes began by saying that the council’s work on the issue is yet unfinished. He stated that in the legislative intent section of the ordinance, the 2004 charter amendment should be mentioned. It should also include a statement about state and constitutional mandates as they apply to patients and caregivers. He asked the council to think about what they could do besides maintaining lists of information so that the lists themselves would not become evidence of violating federal law. He asked the council to consider the geographic transportability of licenses. He said that labeling also needs to be addressed. He suggested that the proposed licensing board doesn’t currently have a slot for a patient as a member, and that it should have one.

Like many of the speakers, Tony Keene had previously addressed the council on the topic of medical marijuana. At the council’s Jan. 3, 2011 meeting, he’d been critical of dispensaries as a business model to provide access to medical marijuana for patients. From The Chronicle’s report of that meeting:

[Keene] had distributed a yellow two-side sheet to the audience that described an alternative strategy to the city’s proposed licensing scheme. During his public commentary turn, Keene highlighted some of main points of the alternative. Key among them is the idea that “dispensaries” are in concept not lawful under the Michigan Medical Marijuana Act, but that business models developed along the lines of “compassion clubs” and “co-ops” are. So the proposal would be to close down all dispensaries and start from scratch – with compassion clubs and co-ops and individual caregivers making up “caregiver centers.”

Keene attended the council’s Feb. 6 caucus, on the Sunday night before its regular meeting, and reiterated to the one councilmember who attended, Sabra Briere (Ward 1), his view that dispensaries are not a good solution, and that dispensaries are the only voices being heard. At the caucus, he told Briere that the council had no understanding of the topic and that they had no idea what they were doing. As an example, he pointed out that the current licensing had no explicit definition for a “cultivation facility.” [Briere brought forward an amendment on Monday that provided a definition of such facilities.]

On Monday night, Keene complimented the council for keeping the spirit of the Michigan Medical Marijuana Act in mind, noting that nothing would require his business, which involves caregiver support services, to have a license.

Keene’s commentary was distilled into a simple message: Say yes to medical marijuana, say no to dispensaries. It’s time to shut down the dispensaries, he said. There are adequate mechanisms of caregiver support that patients who cannot grow for themselves can find a way to get their medicine, he said. A dispensary is a million-dollar-a-year business, he said. If a medical marijuana business owner is not willing to purchase marijuana from an exchange and to be completely open and transparent, Keene said, then that person has no business being in the medical marijuana business.

Rhory Gould reminded the council that their challenge is to find a balance between the concerns that some people might have and the interests of patients. Offering patients more choices, he said, would result in competition, thus lower prices and better service. He reminded the council that Ann Arbor is surrounded by more conservative communities. He suggested that parking affects ease of access to dispensaries, and in light of that called for a geographic distribution of licenses: 10-15 licenses for downtown and 15 for the rest of the city, and 5-8 licenses for growing facilities. He noted that the original moratorium was only for 120 days and had then been extended well beyond that time. He wanted to get employees hired, space rented and start paying taxes, he said.

Chuck Ream told the council that they’d come a long way and that he wanted to focus on three remaining areas. First, the section expressing the legislative intent of the licensing ordinance, said Ream, is negative and pejorative and should be changed to reflect the city’s charter amendment. Second, he said there is no need to have more than one person’s name posted on the wall – warning that 15 people have been killed and others robbed. There is no need to post people’s names so that every junkie and robber can have access to that information. Third, he said there’s no need to require a listing of all suppliers. That kind of listing would drive the “little guy” out of business, he said.

Medical Marijuana: Council Deliberations

Sabra Briere (Ward 1) led off deliberations by noting that some of the proposed changes that had been analyzed by the city attorney’s office had been forwarded to councilmembers only around 6 p.m. [The council had a budget work session that began at 6 p.m.]

Medical Marijuana: Council Deliberations – Amendment 1 (Define Cultivation Facility)

Briere then waded into proposed changes, starting with definitions. The amendment offered and eventually approved defined cultivation facilities this way:

Medical marijuana cultivation facility means a structure or each space in a structure that is separately owned or leased by a person other than the owner of the structure, in which marijuana plants are being cultivated other than as a medical marijuana home occupation.

Queried by Marcia Higgins (Ward 4) about the motivation for the change, Briere observed that the definition of “cultivation facility” in the original draft was essentially a tautology: “Cultivation facility means a medical marijuana cultivation facility.” She added that the desire was to distinguish cultivation facilities from home occupation-type businesses. [At the Jan. 3 meeting, the council had stripped out home occupation businesses from the licensing requirements.]

Higgins said the definition seemed to indicate a large structure, leased to different people – could there be several cultivation facilities in one structure? City attorney Stephen Postema did not answer Higgins’ specific question, but essentially reiterated the content of the definition. Higgins indicated that she found the definition more confusing now than before. Postema said some definition of cultivation facility was needed.

Sandi Smith (Ward 1) clarified with Postema that the consequence of the proposed definition was that each individual cultivation facility in a larger structure would need to have a license.

Amendment outcome: With dissent from Rapundalo and Higgins, the definition of “cultivation facility” was approved.

Medical Marijuana: Council Deliberations – Amendment 2 (Define Authorized Person)

Next up was the definition of an “authorized person.” The eventual language accepted by the council was this:

(e) Authorized person means:
(i) an owner of a dispensary or cultivation facility;
(ii) the directors, officers, members, partners, and individuals of a dispensary or cultivation facility that is a corporation, limited liability company, partnership, or sole proprietorship;
(iii) any person who is in charge of and on the premises of the dispensary during business hours.

Briere explained that the definition of an authorized person is important in the context of the licensing requirement that city staff be able to enter the premises for inspection, if allowed by an “authorized person.” Briere drew an analogy to the idea that a plumber working at a resident’s home would not be authorized to allow someone else to enter.

Christopher Taylor (Ward 3) wondered why “an employee” was not on the list of possible persons who would meet the definitional criteria.

Briere explained that depending on the business model, some employees might be more in charge or less in charge of the facility. A cleaning person would not be in charge, for example.

Amendment outcome: The new definition of “authorized person” was unanimously approved.

Medical Marijuana: Council Deliberations – Amendment 3 (Combined Facilities)

Briere carried the next amendment forward, indicating some weariness. The next amendment clarified whether a combined operation that includes both a cultivation facility and a dispensary would require two licenses – one for the cultivation facility and one for the dispensary. The eventually approved language reads:

(4) The first year’s licenses shall be capped at a number 10% higher than the licenses applied for in the first 60 days, but not more than 20 dispensaries and 10 cultivation facility licenses. Any license terminated during the license year returns to the City for possible reissuance. A business that is a combined dispensary and cultivation facility shall require two separate licenses.

Briere reported that the metaphor she’d discussed with city attorney Stephen Postema that morning was that of a brewpub, which manufactures and distributes alcohol on the same premises. Having both kinds of operation puts you in a different position, Briere said. Sandi Smith (Ward 1) asked that the word “possible” be inserted before “reissuance” to make clear that the city was not obligated to reissue a returned license.

Amendment outcome: The council unanimously approved the amendment making it clear that a combined facility would need two licenses.

Medical Marijuana: Council Deliberations – Amendment 4 (Proof  of Insurance)

Saying that she would love it if someone else would take up the issue of bringing amendments forward, Briere trudged ahead. Next up was a general provision that required proof of insurance for licensees. The exact types were left blank in the amendment, with the idea that the blanks would be filled in before the second vote on the ordinance. Tony Derezinski (Ward 2) expressed some reluctance in leaving the items blank, but said that if city attorney Stephen Postema could provide the information to fill in the blanks by the second vote, he was okay with it.

(4) Before the City officially issues a license, the applicant shall provide the City with proof of insurance in the following types and amounts:
(a)
(b)
(etc.)

Amendment outcome: The council unanimously voted to insert a requirement of proof of insurance.

Medical Marijuana: Council Deliberations – Amendment 5 (Strike Physician Names)

Next up was an amendment to strike the names of physicians who would be rendering services on the premises from the information required on an application form.

(f) Name and address of all physicians who will render services on the premises of the cultivation facility or dispensary.

Briere said there were undoubtedly reasons for wanting to know this information. But she pointed out that if the goal was to find out which physicians were referring patients to a dispensary, then this requirement would not meet that goal, because a physician need not be on the premises to make the referral. She also pointed out that the physicians doing the referrals could change from time to time.

Smith supported striking the requirement, saying that it would not inform a licensing board decision about whether to grant a license.

City administrator Roger Fraser and Marcia Higgins share a humorful aside during the Feb. 7 meeting.

Higgins asked why a physician would render services at a dispensary. Why would they do that? she asked. If this is an additional place the physician would be practicing, then she’d want to know that, she said.

Assistant city attorney Kristen Larcom explained that there is locally at least one dispensary with a physician on the premises to review and make referrals for state of Michigan medical marijuana registry cards. Why can’t a physician do that at their office? wondered Higgins. Higgins stated she’d not be supporting the amendment.

Carsten Hohnke (Ward 5) raised the practical issue of whether the changing of a physician on the premises could cause the license to be invalid. Postema indicated that the information should be updated with the city if it changed. He also said there’s no requirement that a physician be on the premises and that the majority of dispensaries don’t have one.

Margie Teall (Ward 4) and Stephen Kunselman (Ward 3) both said they’d support the amendment.

Amendment outcome: With dissent from Rapundalo and Higgins, the requirement was eliminated that physicians’ names be included in a license application.

Medical Marijuana: Council Deliberations – Amendment 6 (Strike Services)

Next up was an amendment that altered the requirement that the license application include a description of products and services to be offered by the licensee. In its final form, the language was simply stricken:

(j) A description of the products and services to be provided.

Briere said that there simply needed to be language indicating whether an applicant is applying for a dispensary license or a cultivation facility license. Smith suggested striking the item in its entirety. She said a licensing board decision would not be informed by knowing what strain of marijuana or delivery methods were being offered.

A back and forth that included Rapundalo and Derezinski – who serve on the council’s liquor license review committee – drew out the fact that liquor licenses are specific to the kind of alcohol served and the specific types of entertainment offered on the premises. So they were keen to see the language stay in the ordinance.

Mayor John Hieftje questioned whether the analogy to liquor licenses was the best one to use – he thought a pharmacy would be a better point of comparison.

Amendment outcome: The council voted to strike the language about products and services, with dissent from Higgins, Derezinski, Rapundalo, and Taylor.

Medical Marijuana: Council Deliberations – Amendment 7 (Security Measures)

The council next considered an amendment to modify the requirement on video security measures. [Language to be stricken is displayed in strike-through; added language in italics.]

(i) security cameras to monitor all areas of the licensed premises where persons may gain or attempt to gain access to marijuana or cash. Recordings from security cameras shall be maintained for a minimum of seventy-two hours in a secure off-site location. The Administrator may adopt regulations implementing this requirement, including but not limited to regulations on the design, location, maintenance, and access to the cameras and recordings. Those regulations shall take effect 30 days after being filed with the City Clerk unless modified or disapproved by the City Council.

Smith stated that she was uncomfortable with the city administrator having that role. Kristen Larcom indicated there are a number of ordinances where the city administrator promulgates such regulations. Higgins ask if Larcom had had a conversation with city administrator Roger Fraser about it – no, she hadn’t. Taylor noted that the language doesn’t give an instruction to the administrator, but rather gives the administrator an authority.

Kunselman expressed reluctance to adopt measures modeled after Colorado’s laws – which had been mentioned in connection to the video requirement – because for Colorado, the video recordings are all about tracking revenue. [At the Sunday night caucus, Tony Keene had said that in Colorado, the video feeds go straight to the treasury department.]

Amendment outcome: The council approved the video surveillance language, with dissent from Kunselman, Higgins, Smith and Mike Anglin (Ward 5).

Medical Marijuana: Council Deliberations – Amendment 8 (Package Labeling Warning)

Next up was insertion of additional language [indicated in italics] on the package labels for medical marijuana.

THIS PRODUCT IS MANUFACTURED WITHOUT ANY REGULATORY OVERSIGHT FOR HEALTH, SAFETY OR EFFICACY. THERE MAY BE HEALTH RISKS ASSOCIATED WITH THE INGESTION OR USE OF THIS PRODUCT. USING THIS PRODUCT MAY CAUSE DROWSINESS. DO NOT DRIVE OR OPERATE HEAVY MACHINERY WHILE USING THIS PRODUCT. KEEP THIS PRODUCT OUT OF REACH OF CHILDREN. THIS PRODUCT MAY NOT BE USED IN ANY WAY THAT DOES NOT COMPLY WITH THE MICHIGAN MEDICAL MARIJUANA ACT OR BY ANY PERSON WHO DOES NOT POSSESS A VALID MEDICAL MARIJUANA PATIENT REGISTRATION CARD.

Smith said that she hoped that they might eventually also contemplate some language indicating educational resources.

Amendment outcome: The council unanimously approved the additional language.

Medical Marijuana: Council Deliberations – Amendments 9, 10 (Rephrase to Positive)

Two amendments were made that essentially replaced “no person shall fail to” with language that asserted what is required. In their approved form, the amended portions of the ordinance read:

An authorized person shall consent to the entry into a cultivation facility or dispensary by the Building Official and zoning inspectors for the purpose of inspection to determine compliance with this chapter pursuant to a notice posted in a conspicuous place on the premises two (2) or more days before the date of the inspection or sent by first class mail to the address of the premises four (4) or more calendar days before the date of the inspection.

…

All security measures required in this chapter shall be maintained in good working order. The premises shall be monitored and secured twenty-four hours per day.

Amendment outcome: The council unanimously approved the rephrasing of the language.

Medical Marijuana: Council Deliberations – Amendment 11 (Changes to Facility)

Next up was an amendment to make clear how changes to the operation of a business and possible changes to the physical structure would be handled in the licensing. These acts would be prohibited [deleted text is shown as strike-through, with added text in italics]:

(d) Make any changes or allow any changes to be made in the operation of the cultivation facility or dispensary as represented in the license application without, applying for and being issued a new license first notifying the City by amending its application.

(e) Make any changes or allow any changes to be made to the structure in which the business is operating without applying for and being issued appropriate permits and obtaining final inspection approval.

Amendment outcome: The council unanimously approved the amendment.

Medical Marijuana: Council Deliberations – Amendment 12 (Posting Names)

An amendment that reduced the number of names required to be posted on the premises of a business, together with the license, was approved [deleted text is shown as strike-through, with added text in italics]:

A cultivation facility or dispensary license issued by the City under this chapter, including the name and contact information for the owner(s) and business manager(s),  for an authorized person and business manager(s), if any, shall be conspicuously posted in the cultivation facility or dispensary where it is easily open to public view.

Higgins asked why you wouldn’t want to display the names on the license itself. Taylor drew a distinction between posting ames versus the city having the names in the city’s hands. Higgins summarized her objection by saying that this is a big business, and it seems shady not to list the owners.

Amendment outcome: The council voted to modify the number of names required to be posted, with dissent from Higgins and Rapundalo.

Medical Marijuana: Council Deliberations – Unresolved Issues

In the course of handling the multiple amendments, one was withdrawn – it would would have provided a specific way to trace the origin of the medical marijuana by requiring the state registry ID number of a caregiver.

Another issue was not formally introduced as an amendment – the provisions in the licensing that address prior convictions of felonies.

As it became apparent that the council’s inclination was to again postpone the measure, Hieftje reiterated some of the frustration that he’d expressed midway through the handling of the amendments, saying that he would like to see a marked-up copy of the licensing proposal that reflected all the amendments the council had made. He wanted to be able to consider the material in a form that was more appropriate than what they’d had to contend with that evening.

In response, Postema told the mayor that he could have such a copy to the council by next week. Hieftje seemed to indicate that next week [it was Monday evening] would not be an acceptable delay, saying that it would be very helpful if the council had the material available several days in advance of their next meeting.

Outcome: The council unanimously voted to postpone its initial vote on the licensing scheme until Feb. 22, 2010, but passed several amendments before postponement. [.pdf of licensing proposal as amended on Feb. 7, 2011] The vote that was postponed is the first of two votes the council must take on any new ordinance it enacts. The second vote on licensing would come no sooner than March 7, 2011. A second vote on the zoning regulations for medical marijuana businesses, which won council’s initial approval at its Oct. 18, 2010 meeting, also was scheduled for March 7, 2011.

Heritage Row Application Fee

Before the council was a proposal to waive the application fee if the developer of the Heritage Row project, Alex de Parry, resubmits the planned unit development (PUD) within 90 days.

To qualify for the fee waiver, the project would also need to include the same revisions that previously had been reviewed by city staff – after the project had been rejected, and then rejected again upon reconsideration by the city council in the summer of 2010. The resolution notes that to date, de Parry has paid the city over $30,000 in review fees, a number that was revised upward during council deliberations to more than $42,000.

The residential project, located on the east side of South Fifth Avenue, would renovate seven houses and construct three new 3.5-story apartment buildings behind those houses, with an underground parking garage. The council initially rejected Heritage Row on June 21, 2010, with a 7-4 vote in favor. It required an 8-vote majority for approval, due to a petition filed by adjoining property owners. The city council then reconsidered the project at its July 6, 2010 meeting, and it failed again, on a 7-3 vote. Then at the council’s Dec. 6, 2010 meeting, some councilmembers seemed poised to suspend council rules to allow another reconsideration, but the vote to suspend council rules failed.

The last proposal reviewed by the city includes the following revisions: (1) the top floor of the new south building would be removed from the design; (2) the density would be reduced from 79 units to 76 units and the number of bedrooms would be reduced from 154 to 147; (3) the project would include five affordable units at the 50% AMI (average median income) level, in addition to six affordable units at the 80% AMI level; and (4) the three new buildings would be LEED certified.

Complicating the decision-making on Heritage Row is a different, matter-of-right project called City Place, for which de Parry already has site plan approval. That approval was given at the council’s Sept. 21, 2009 meeting.

Heritage Row Fee: Public Comment

Dissenting views held by the public were expressed in letters to the city from nearby property owners Tom Whitaker and Beverly Strassmann, whose communications were attached to the council’s online packet of materials.

Among other points, Whitaker’s letter raised the question of whether the project would be considered a new project or would be considered to be the same project as before:

But will the City really treat this as a new project? Will Heritage Row Revisited actually receive the same rigorous and comprehensive review that any other new PUD petition would receive? The resolution explicitly says NO, it will not. This time, Heritage Row is to only receive the most minimal of reviews by staff in order to justify the waiving of all fees and to speed it through the process (which will invariably lead to the same conclusion as the last three times). So which is it – the same or new?

Strassmann’s message to the council – as well as Whitaker’s – included a specific issue that emerged during council deliberations: Would de Parry actually build the City Place matter-of-right project? For Strassmann, it’s clear:

The de Parry’s have no intention of building their R4C project. The R4C project would be very foolish to build and it is unlikely to get bank approval. They know that. Nor is it likely that the de Parry’s are about to cash in and move out of state given that they have another local project.

Heritage Row Fee: Council Deliberations

The resolution was introduced by Tony Derezinski (Ward 2), who had co-sponsored it along with Sandi Smith (Ward 1). He recalled that when the council had last had the project on its agenda, on Dec. 6, 2010, the parliamentary requirements would have entailed what some people considered to be extraordinary rule suspensions. The resolution before the council takes care of that, Derezinski said.

Derezinski went on to say that the resolution to waive the application fee had come at the request of the developer, Alex de Parry. Though the information accompanying the resolution indicated that de Parry had paid more than $30,000 in application fees in connection with projects at the site, Derezinski said the exact number was $42,020. The rationale for the fee waiver, he said, was that the city’s planning staff would have relatively little work to do in reviewing the plans, which they’ve seen before.

From left: councilmembers Sabra Briere (Ward 1), Carsten Hohnke (Ward 5), and Sandi Smith (Ward 1) at the budget work session before the Feb. 7 city council meeting. At right is Kevin McDonald of the city attorney’s office.

Derezinski said that he and Smith as well as other councilmembers had worked with the developer to make changes to the project to make it better.

Marcia Higgins (Ward 4) said she thought it was great to see that the project would be coming back, but noted that waiving fees was not standard practice. She suggested instead a reduced fee that would be commensurate with the 15-20 hours of staff time that would be required for the review. The actual fee worked out to $4,900, and Higgins suggested something like half that – $2,000 was the figure she settled on. Derezinski said he didn’t like the idea, but as a practical matter he would not oppose it as a friendly amendment.

Carsten Hohnke (Ward 5) said he had concerns about making such an exception, but said he was prepared to support some version of the resolution. He described how a previous version of the project had been unanimously rejected by the city council. He said that progress had been made in improving the project and he felt the council had some responsibility to be proactive.

Stephen Kunselman (Ward 3) said he did not like the idea of waiving fees. He wondered if the council would be waiving fees for the developer of the Georgetown Mall property. He did not agree with the conclusion that the alterations to the project represented a substantial change. He also wondered what level of LEED certification would be achieved.

Kunselman went on to discuss taxes owed on the individual properties that constitute the site of the project, which came to more than $19,000. He concluded that the developer was a “tax scofflaw.” He also noted that not all the sidewalks had been repaired in front of the properties – the city’s ordinances require that property owners maintain their own sidewalks. He said he did not think City Place would get built, because all the properties would have to be paid off – he seemed to indicate a general skepticism that the developer had the financial wherewithal to build the project.

Mike Anglin (Ward 5) said there’d been a good dialogue on the project. He noted that the city’s R4C/R2A zoning study was not yet finished. There were ways the council could have dealt with preventing City Place from being built, he said, which included a proposed moratorium on projects in R4C areas and establishing a historic district. [A prior proposal from Anglin for a moratorium got little traction on the council. And the council had previously rejected a historic district study committee's recommendation to establish a district in the area.]

Mayor John Hieftje said he would normally not support a fee waiver. The mayor picked up on a comment that Derezinski had made to the effect that in Derezinski’s short time on the city council, he’d never seen anything like the history of the Heritage Row project: Hieftje said in his long time on the council [more than 11 years], he’d also seen nothing like it. He called it a special situation. If it weren’t for City Place, he said, he wouldn’t contemplate supporting the resolution. But he did believe that City Place would be built, if Heritage Row weren’t approved. In an apparent allusion to Whitaker’s letter, Hieftje said that people had suggested other ways to block City Place, but he did not think there were any that were legally acceptable.

Hohnke acknowledged the unusual nature of the situation. He said that the long, hard, tough negotiations had served the community well – City Place had not yet been built.

Outcome: The council approved the application fee reduction for Heritage Row by a 9-2 vote, with dissent from Stephen Kunselman (Ward 3) and Mike Anglin (Ward 5).

Design Guidelines

Before the council for approval was a program of design guidelines for downtown buildings as the final piece of its A2D2 rezoning project. The program was long in the works but the item was a late addition to the Feb. 7 agenda, getting added the same day as the council meeting. [Previous Chronicle coverage, which includes a detailed timeline of the design guidelines work, dating back to a work group formed in 2006: "Ann Arbor Hotel First to Get Design Review"]

Local architect Norm Tyler consults with Marcia Higgins (Ward 4).

The resolution did not incorporate a mandatory process of design review into the city’s ordinances, but instead creates a framework for eventual incorporation of such a mandatory process. Part of the temporary arrangement will be a design review committee consisting of: Chet Hill (landscape architect); Mary Jukari (landscape architect); Richard Mitchell (architect); Tamara Burns (architect); Paul Fontaine (planner); William Kinley (developer); and Geoff Perkins (contractor).

Compliance with the recommendations of a permanent design review board to be established by ordinance would be voluntary. For now, developers would be asked to participate voluntarily with the process, with recommendations coming from the design review committee that was appointed as part of the council’s resolution.

Design Guidelines: Public Commentary

Peter Nagourney addressed the council by recapitulating the long history of the effort to formulate design guidelines. He recounted how the design guidelines had been presented to the city council at their work session on Jan. 10, 2011. He said he was impressed with the work of the task force.

Design Guidelines: Council Deliberations

During the first slot for communications time, Sabra Briere (Ward 1) was critical of the belated way the item had been brought to the agenda. [Items are ideally to be ready for the agenda's first publication on the Wednesday before the council's Monday meetings, but according to their own council rules, councilmembers are supposed to use best efforts to make sure that items are placed on the agenda before the Friday prior to a Monday meeting.] Briere said that placement of an item on the agenda as late as Monday should be reserved only for emergencies. Something as important as the design guidelines, said Briere, should not be added to the agenda that late.

At the start of the meeting, a mayoral proclamation was presented to Peter Pollack’s widow, Eleanor Pollack, for his wide-ranging contributions to civic life in Ann Arbor, which included work on the design guidelines task force that produced the final program of guidelines. Upon presentation of the proclamation, the council rose from their seats and were joined by the audience in their applause honoring Pollack’s memory.

Marcia Higgins (Ward 4), who led the design guidelines task force, said the task force wanted to dedicate their report to Pollack’s memory. Higgins had announced Pollack’s imminent passing at the council’s Dec. 20, 2010 meeting.

When the council came to the agenda item, Higgins led things off by describing the task force’s work as diligent and noted the public input over the last five years. After the Jan. 10 work session, Higgins said the task force had met again to discuss how the mandatory review process and voluntary compliance would be implemented.

She said the completely voluntary process that the resolution put into place sees the design review taking place before the citizen participation meeting, which is required by city ordinance for all new project submissions.

Outcome: The council unanimously approved adoption of the design guidelines program.

Fuller-Maiden Lane Intersection

Before the council was the authorization of a $460,139 contract with DLZ Michigan Inc. to review previous studies of the Fuller Road/Maiden Lane/East Medical Center Drive intersection and propose a design for reconfiguring the intersection. Previous studies point to a roundabout as a good solution to the traffic congestion at the intersection. The poor level of service (LOS) in that area has prompted the city to propose various solutions to the intersection redesign, dating back at least to 2005. Depending on the time of day, the intersection currently rates D and E on the letter-grade scale used to evaluate traffic flow.

In the city’s capital improvements plan (CIP), the intersection improvement is categorized with bridge projects – it’s immediately adjacent to the Maiden Lane bridge over the Huron River.

In 2009, the city studied the intersection in the context of increased traffic load due to possible construction of the Fuller Road Station – an intermodal transit center and parking deck proposed for the area between Fuller Road and East Medical Center Drive. The city’s online meeting packet included drawings of the current configuration of the intersection, as well as the possible roundabout configuration.

The engineering and design of the roundabout project will be funded out of the FY 2011 capital budget for the city’s street reconstruction millage. Construction is expected to be funded out of a combination of: (1) millage revenues in future years; (2) possible funds from a federal Congestion Mitigation Air Quality (CMAQ) grant; and (3) a contribution from the University of Michigan.

In a telephone interview Monday morning before the evening council meeting, Homayoon Pirooz, in the city’s project management unit, told The Chronicle that construction on any project would not begin before the summer of 2012, with 2013 a more likely timeframe. Pirooz ballparked the construction cost of a project like this – once all the traffic lanes leading to the intersection are modified, and the pedestrian amenities are installed – as possibly more than $2.5 million.

Outcome: The council unanimously approved the contract for design and engineering of the Fuller-Maiden Lane intersection.

Capital Improvements Plan (CIP)

At its Feb. 7 meeting, the council voted on approval of the city’s capital improvements plan (CIP). The plan covers the fiscal years 2012-2017, and includes a list of major capital projects – for projects that have identified funding sources, as well as those that do not. The city code requires that the CIP be developed and updated each year, looking ahead at a six-year period, to help with financial planning. It’s intended to reflect the city’s priorities and needs, and serves as a guide to discern what projects are on the horizon.

Included in this year’s proposed CIP was a plan for a runway extension at the city’s municipal airport, an item that the council had voted to remove last year before last year’s CIP was finally adopted.

The city’s planning commission recommended adoption of the CIP at its Jan. 4, 2011 meeting, when commissioners discussed in detail how the plan was developed and how public input was sought. [Previous Chronicle coverage of the possible airport runway extension: "Ann Arbor Airport Study Gets Public Hearing"]

CIP: Public Hearing

Libby Hunter rendered her public commentary in the form of a song, as has become her standard practice. She used the melody from the University of Michigan fight song “Hail to the Victors” and sang lyrics critical of the Fuller Road Station project, which is included in the CIP: “Hail to Hieftje’s transit center …”

Joel Batterman introduced himself as a 2006 graduate of Huron High School and currently a master’s student in the University of Michigan urban planning program. He discussed the Fuller Road Station, an item in the CIP. He said there needs to be a prioritization. The city of Ann Arbor, he said, has a desire for a train station. And the University of Michigan, he continued, has a desire for greater parking capacity. Batterman urged consideration of UM’s own phase 2 draft reports for its Integrated Assessment of Campus Sustainability. Batterman suggested that a better strategy than increased parking capacity was to make better use of existing parking resources. He described thousands of empty spaces on outlying lots, which could be used more effectively through judicious setting of parking fee levels. [Batterman addressed the UM regents at their January meeting on the same topic: .pdf file of Batterman's remarks to regents].

Andrew McGill, prior to the start of the Feb. 7 city council meeting. It was a long wait for McGill to hear the vote on the city’s capital improvements plan. He left knowing that the council had removed the airport runway extension project from the plan – he’d advocated for its removal.

Andrew McGill spoke on behalf of The Committee for the Preservation of Community Quality, noting the 2012 line item in the CIP for the municipal airport runway extension. He said that labeling the extension as a “runway safety extension” is disingenuous. He reminded the council that they’d removed the item from the plan last year by a majority vote. He reminded them that they had only approved an environmental assessment of the airport, not a plan to extend the runway. The environmental assessment, he said, was still being evaluated by the Federal Aviation Administration. McGill concluded by asking the council to affirm the decision made the previous year and to delete the item again.

Providing a counterpoint to McGill’s remarks was Chris Gordon, who introduced himself as president of the Ann Arbor General Aviation Association. Gordon, who lives in Dexter, emphasized the idea that the Ann Arbor municipal airport is not just a city asset – it’s a regional, state, and national asset. He noted that in terms of number of operations, Ann Arbor’s airport is ranked eighth out of the state’s 238 public use airports. He stressed that there are aviation funds that can only be used on aviation assets – it’s not as if money not spent on airport projects could be spent on other, non-aviation projects elsewhere in the city. He urged the council’s support of all the airport projects in the CIP.

Thomas Partridge called for development of a unified plan to invest in people and services.

CIP: Council Deliberations

This year, Stephen Kunselman (Ward 3) raised the same objection about the runway that he had voiced the previous year, and the council again removed the item by a narrow 6-5 vote.

Amendment outcome: Voting for keeping the runway extension in the CIP were: Teall, Higgins, Smith, Derezinski and Rapundalo. Voting against the runway extension were Kunselman, Hohnke, Anglin, Hieftje, Briere and Taylor.

Mike Anglin (Ward 5) questioned what the principles were for developing the CIP and expressed some frustration that there are projects included in the plan that the council has not yet voted on, but they’re included in the plan as if the city is moving forward with them. Anglin also wondered to what extent input from the public had been included in the plan.

Cresson Slotten, senior project manager with the city, described for Anglin how the plan had been developed, including the survey of the public that had been conducted. Slotten’s remarks mirrored his presentation to the planning commission about the plan at their meeting a few weeks ago.

City administrator Roger Fraser noted that the planning commission is required to propose the CIP, but that not every item in the plan needs to have funding identified. Development of the plan, he said, complies with state law, and technically, the city council should simply be voting to receive the plan – implying that it was not really expected that the council would alter the plan.

Outcome: The council unanimously approved the CIP after the narrow 6-5 vote that eliminated the airport runway extension.

Greenbelt Matching Funds

The council was asked to approve applications to the U.S. Dept. of Agriculture’s Farm and Ranch Lands Protection Program (FRLPP) for matching grant funds. The funds would be used for the purchase of development rights on two additions to the city’s greenbelt program: 110 acres on the Lindemann-Weidmayer farm in Lodi Township, and 92 acres on the Grosshans farm in Superior Township.

The city’s cost would be paid out of the greenbelt millage funds. The federal match would be up to 50% of the appraised fair market value of the development rights, up to a maximum of $5,000 per acre. The greenbelt advisory commission recommended at its Dec. 8, 2010 meeting that the city make the applications to the FRLPP.

Outcome: Without comment, the council unanimously approved the two recommendations to submit applications for the federal matching grants, to be used for greenbelt properties.

Village Green Contract Amendment

Before the council was approval of an amendment to a contract with Village Green to develop a 244-space parking deck as the first two stories of a 9-story, 99-foot-tall building, City Apartments – a 156-unit residential planned unit development (PUD) at First and Washington. Among other items, the amendment clarifies the ability of the Ann Arbor Downtown Development Authority and the city to provide oversight to the construction process.

Once the parking deck portion of the building is completed and issued a certificate of occupancy, the city of Ann Arbor has agreed to issue $9 million worth of bonds to purchase the deck, and the Ann Arbor DDA has agreed to make the payments on those bonds. The DDA board approved its part of the contract amendment at its Feb. 2, 2011 meeting.

The contract amendment comes in the context of a series of milestones that were put in place last year, when the council extended Village Green’s option to purchase the parcel at First and Washington, where City Apartments would be built, for $3 million. That most recent extension came at the council’s Aug. 5, 2010 meeting, and provides a purchase option through June 1, 2011. The $3 million from the transaction would be put towards the construction fund for the city’s new municipal center, which is now largely complete and partly open for business.

If the $3 million transaction does not go through, the city has said it would borrow money to cover the construction shortfall, a step that would require city council approval. Based on The Chronicle’s conversation at the council’s meeting with a Village Green representative, the company expects the deal to go though and is planning for construction to start in the summer of 2011.

At a Wednesday morning meeting of the DDA partnerships committee, Wendy Rampson – head of planning for the city – told The Chronicle that Village Green had not yet made a formal request to lift the entire building by a few feet, in order to avoid having to dewater the site during construction. Depending on the number of feet, she said, such a request could be handled as an administrative change or else as a request that the city council would need to approve.

Outcome: Without comment, the council unanimously approved the Village Green contract amendment.

Fire Services Analysis

As part of its consent agenda, the council considered a resolution that authorized the city administrator to negotiate a contract to get an analysis of and recommendations for Ann Arbor’s fire protection needs. The contract, for not more than $54,000, will be signed with International City/County Management Association (ICMA) Center for Public Safety Management.

The move comes in the context of two recent budget retreats conducted by the council, where the council discussed the possibility of transforming Ann Arbor’s fire department to a staffing arrangement that would combine full-time career firefighters with paid on-call firefighters.

The city’s current contract with the firefighters union IAFF Local 693 expired on June 30, 2010. Councilmember Stephen Rapundalo (Ward 2), chair of the council’s labor committee, reported at the council’s Jan. 18, 2011 meeting that the city had been negotiating with its firefighters since February 2010, and has used the services of a state mediator on three occasions. Concessions sought by the city from all its unions include a wage freeze and higher employee contributions to the health care and pension plans.

Outcome: The council does not deliberate on consent agenda items. The fire protection services was approved unanimously along with other consent agenda items.

Communications and Comment

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

Comm/Comm: Labor Negotiations

Stephen Rapundalo (Ward 2) – consistent with the indication he’d made at the council’s previous meeting that he would give updates on the topic of the city’s negotiations with its labor unions – gave some background meant to correct misperceptions that had been indicated in comments written on the AnnArbor.com website. He clarified that city councilmembers do not participate in negotiations with the city’s unions. Those conversations are handled by the city administrator and other city staff, he said. What the council does is set general parameters for the conversations. [One of the legitimate reasons for the council to go into a closed session under the Open Meetings Act is to discuss labor negotiations and to develop a strategy for those negotiations.]

A second point Rapundalo made was that the firefighters were not the only workers to have made concessions in the past. [At the council's previous meeting, Rapundalo had cited non-union workers as well as the Teamsters police deputy chiefs unit, the Teamsters civilian supervisors and Teamsters police professionals as workers who'd made concessions.] Rapundalo also noted that the firefighters’ concessions had enjoyed a duration of only six months.

As a third point, Rapundalo rejected the idea that the city’s instigation of Act 312 arbitration was somehow an indicator that the city did not want to negotiate with its unions. He said the city is compelled to resort to that strategy, because there is little if any incentive for unions to negotiate – their existing contracts remain in effect even if they expire.

Rapundalo then went on to lay out the disparity between what non-union staff pay in the way of health care and what members of the police patrol union, the firefighters, and the AFSCME workers pay. Non-union city workers pay 20% for co-insurance, plus a $300-$1,000 deductible per year. In contrast, union workers pay a $225-250 deductible per year and that’s it. He then went on to compare University of Michigan health benefits with union benefits. UM, Rapundalo noted, is generally considered to offer fairly generous benefits. For an individual in UM’s system, the cost per year in premiums is $1,416, compared to the $225-250 deductible per year that city union members might pay. For family insurance, the comparison was: UM – $6,480; city of Ann Arbor unions – $500.

The city has dealt with rising health costs year after year, and it continues to negotiate to reduce the disparity in health care costs between its employee groups, Rapundalo concluded.

Comm/Comm: Snow Removal Cost

City administrator Roger Fraser noted that the cost of the previous week’s snow removal had been around $250,000.

Comm/Comm: City-DDA Parking Contract

The Ann Arbor Downtown Development Authority has a contract with the city under which it manages the city’s public parking system. Two committees – one drawn from the DDA board and one drawn from the city – are responsible for negotiating a new contract.

Christopher Taylor (Ward 3) at the council’s budget work session before their Feb. 7 meeting.

Christopher Taylor (Ward 3) reported that the Ann Arbor DDA’s committee is currently working on contract details. Joint meetings of the two committees, said Taylor, would reconvene shortly. [Under terms of a 2005 amendment to that contract, it appears the DDA would have the option unilaterally to extend the existing contract for at least three years past the 2015 term of that contract. However, the idea of the DDA exercising that option has not been a part of the public discussions of the contract.]

Comm/Comm: Downtown Street Outreach Task Force

Sabra Briere (Ward 1) reported that the downtown street outreach task force, which she is chairing, had completed its fact-finding work and is currently writing up its report. The report would be presented to the council, she said, at the second council meeting in March, if not sooner. [The council had appointed the task force at its Sept. 20, 2010 meeting. Previous Chronicle coverage: "Ann Arbor Task Force Consults Panhandlers"]

Comm/Comm: Environmental Commission Vacancy

Carsten Hohnke (Ward 5) told his colleagues that for the current vacancy on the city’s environmental commission left by Steve Bean – who chose not to continue his service on the EC – he was nominating Susan Hutton, development director at Leslie Science and Nature Center. He also announced that there would be another vacancy soon on the EC and that the council was actively soliciting applicants. [Anya Dale's term on the EC ends on Feb. 20, 2011.]

Comm/Comm: Advocating for Least Fortunate

During public commentary reserved time at the start of the meeting, as well as the general time at the meeting’s conclusion, Thomas Partridge told the council that he was advocating for the least fortunate among us. He called for ending discriminatory housing and transportation policies. He criticized the city snow plows that piled the snow up into “glaciers,” making it difficult to traverse them. He called for a “kinder, more reasonable mindset.” He called for leadership that is forward-looking and fair.

Comm/Comm: Parks Volunteer Recognition

A mayoral proclamation at the start of the meeting recognized Delta Rho Chapter of the Phi Beta Sigma Fraternity as volunteers for the city’s parks program. The fraternity focuses its volunteer efforts on Liberty Plaza downtown and includes food distribution to the homeless population who frequent the park.

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: Feb. 22, 2011 at 7 p.m. in the Washtenaw County administration building, 220 N. Main St. [confirm date]

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

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

The context for development of zoning regulations was set at the council’s Aug. 5, 2010 meeting, when councilmembers voted to impose a moratorium on the use of property in the city for medical marijuana dispensaries or cultivation facilities. Subsequently, the city attorney’s office also began working on a licensing system, which the council first considered at its Jan. 3, 2010 meeting.

At its Jan. 3 meeting, the council heavily amended the licensing proposal. Among the key amendments made at that meeting was one that stripped “home occupation” businesses out of the proposal. At the Jan. 3 meeting, the council also increased the cap on the total number of licenses available to 20 for dispensaries and 10 for cultivation facilities. Another major amendment made on Jan. 3 was the creation of a board to govern the issuance of licenses. However, the council delayed voting on the first reading of the proposal. [.pdf of licensing ordinance language at the start of the Feb. 7, 2011 meeting]

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

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

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

Before the meeting started, Scott Rosencrans, right, knocks on wood in conversation with Stephen Rapundalo (Ward 2). Behind them are Sandi Smith (Ward 1) and Nicholas Nightwine, president of the city's AFSCME union Local 369. Nightwine was there to oppose the outsourcing of city composting operations. Rosencrans, former chair of the park advisory commission, attended as part of a presentation made by the Ann Arbor Skatepark. (Photos by the writer.)

Council rules factored prominently later in the meeting, when a motion to suspend them failed. Had the rules been suspended, it would have cleared the way for the council to reconsider their previous decision to reject a residential planned unit development (PUD) on Fifth Avenue – Heritage Row. The project, which began as a conditional rezoning proposal three years ago, went through iterations since 2007 that included a brownstone-style PUD and a matter-of-right proposal called City Place, which eventually did win approval from the council.

After their previous council meeting, which featured water as a prominent theme, the council focused much of its attention on land-related issues like Heritage Row. In another land-use related item, the council approved revisions to the city’s area, height and placement (AHP) zoning provisions in the city code. But amendments to the AHP resolution were substantive enough that the approval process was reset to the initial, first-reading step. The AHP changes – which, as amended, provide that height limits do not apply in so-called “employment districts,” unless they abut residential areas – will need approval at a second reading in order to be enacted.

A land-use item that was intended mostly as administrative housekeeping – several park areas previously designated as residential, office, and business districts were rezoned with the public land (PL) designation – generated substantial public commentary and council deliberations. Several public commenters expressed concern about whether the PL designations, which the council approved, afforded adequate protection for the continued use of the land as parks.

Although not strictly a land-use issue in a zoning sense, a proposed contract with WeCare Organics to operate the city’s compost facility was linked to terra firma by acreage owned by the city where the facility is located, plus the fact that it processes yard waste generated from residents’ property. The council approved the WeCare contract after extended questioning of city staff and a representative from WeCare.

Also tangentially related to land use was an item that introduced a licensing scheme for medical marijuana dispensaries and cultivation facilities in the city. After questioning the city attorney about several provisions of his proposed licensing requirements, councilmembers decided to postpone the issue until their Jan. 3, 2011 meeting. The new zoning regulations regarding where medical marijuana dispensaries and cultivation facilities can be located, which were scheduled to be heard at second reading on Dec. 20, were rescheduled for Jan. 18.

A land travel-related agenda item the adoption of the Michigan Vehicle Code (MVC) as part of the city’s traffic ordinances. Two years ago, the city had adopted the MVC but excluded portions of that state law relating to the setting of speed limits. The adoption of the full MVC came in response to a possible class-action lawsuit against the city.

As heavily land-centric as the agenda was, Ann Arbor city council also dealt with $9 million worth of water issues. It approved petitions of the Washtenaw County Water Resources Commissioner (WCWRC) office for five different projects in drainage districts that lie at least partly inside the city of Ann Arbor. The total cost of all the projects, including the non-city share, is a bit over $9 million. They qualify for low-interest state-revolving fund loans, up to 50% of which may be forgiven by the state. The payments on the loans will come from the city’s stormwater fund.

New Council Rules

The council formally adopted its rules for the coming year, without commentary. The rules included two revisions, which can be traced to the filing of a lawsuit by the Great Lakes Environmental Law Center in 2009. The lawsuit included allegations that the city council violated the Open Meetings Act by engaging in deliberative email communications with each other out of public view, but during their public meetings.

The council had previously enacted a rule that limits their use of email during their meetings and provides that any emails that are sent or received during a meeting by councilmembers are routinely attached to the meeting’s minutes. But the lawsuit settlement, which left open the question of whether the city council violated the Michigan Open Meetings Act, required the city council to consider formally the enactment of an additional rule stipulating that they only use their government accounts for city council business. That consideration took place at the council’s April 19, 2010 meeting in the form of a resolution remanding the issue to the council’s rules committee. [Coverage and analysis of that meeting: "Ann Arbor City Council Also Remands Email Rule to Committee"]

The rules committee is – by council rule – required to report back to the council at its next meeting. However, the rules committee did not mention its work on the email rule until Oct. 19, 2010. From The Chronicle’s coverage of that meeting:

Comm/Comm: Email Rule

Sabra Briere (Ward 1) reported out from the council rules committee that in November they would likely have a recommendation for a change to email rules. By way of background, as part of a lawsuit settlement, the council agreed to formally consider a rule on use of non-government email accounts. The council satisfied the requirement of the settlement in the spring by remanding the question to its rules committee, which – by council rule – should have reported back to the council at the council’s subsequent regular meeting.

The two revisions to the council rules adopted at Monday’s meeting were as follows [added material in italics and deleted material in strike-through]:

RULE 15 – Committees and Officers Must Report

All committees and officers shall make immediate report on matters referred to them at the first stated meeting after such references unless further time shall be given them by the Council or unless requested to report to the working committee.

All committees and officers shall make immediate report on matters referred to them at the first stated meeting of Council after such referrals are first addressed by the committee or the officer unless another time shall be given them by the Council or unless requested to report to the work committee. In any event, a status report should be given to the Council by a committee after each meeting of the committee at which the referred matter is discussed.

…

RULE 18 – Council Email

Councilmembers shall use the City electronic mail system for their electronic mail communications for City business.

Outcome: The city council voted unanimously to adopt its new council rules.

Heritage Row

The  council was set to take a sequence of three votes on the Heritage Row PUD (planned unit development) project, which would have concluded with the scheduling of a reconsideration of the proposal as a first-reading agenda item on Dec. 20. [.pdf of the set of parliamentary motions]

The residential project, located on the east side of South Fifth Avenue, would renovate seven houses and construct three new 3.5-story apartment buildings behind those houses, with an underground parking garage. The city council has already reconsidered the project once before – at its July 6, 2010 meeting. That reconsideration came after the council had initially rejected it on June 21 with a 7-4 vote in favor. The project needs an 8-vote super-majority due to a successful petition filed by adjoining property owners. At the July 6 meeting, the project was nearly reconsidered yet another time at the same meeting, as Carsten Hohnke (Ward 5) appeared ready to change his vote – but he withdrew his motion to suspend the rules, and no additional reconsideration occurred.

On Monday, the proposal that was intended to be reconsidered by the items sponsors –  Sandi Smith (Ward 1) and Tony Derezinski (Ward 2) – included the following revisions: (1) the top floor of the new south building would be removed from the design; (2) the density would be reduced from 79 units to 76 units and the number of bedrooms would be reduced from 154 to 147; (3) the project would include five affordable units at the 50% AMI (average median income) level, in addition to six affordable units at the 80% AMI level; and (4) the three new buildings would be LEED certified [.pdf of current proposal] [Previous Chronicle coverage: "Heritage Row Redux: Again"]

The first in the sequence of three votes was a motion to suspend the council rules:

RESOLVED, That the following requirements of Council Rule 12 be suspended for the sole purpose of allowing Councilmember Derezinski to request City Council reconsideration of the Heritage Row PUD Zoning and the PUD Site Plan and Development Agreement:

• The requirement that the motion for reconsideration be made by a member voting with the prevailing side
• The requirement that the motion be made at the same or the next regular meeting of Council
• The requirement that a motion only be reconsidered once

When the council came to the item on its agenda, Derezinski began to introduce the substance behind the motion. But Carsten Hohnke (Ward 5) objected, noting that a motion to suspend the council rules is, from a parliamentary point of view, not debatable. That observation was confirmed by city attorney Stephen Postema. Derezinski ventured that explaining what the motion would do did not amount to debating it. Postema stated that the motion was self-explanatory.

[Editor's note: The agenda item was labeled a "motion" but in every other respect resembled a "resolution," including written text with "whereas" and "resolved" clauses. We leave to parliamentarians the question of whether the issue could have properly been debated as a resolution.]

Without the benefit of any debate, the council voted.

Outcome: The 2/3 majority of members present that was needed to suspend the council rules was not achieved – the vote was 6-5 in favor of suspension. All four councilmembers who had previously voted against Heritage Row voted against suspending the council rules: Mike Anglin (Ward 5), Carsten Hohnke (Ward 5), Sabra Briere (Ward 1), and Stephen Kunselman (Ward 3). They were joined by Marcia Higgins (Ward 4).

On July 6, when the council had successfully suspended the rules, the 2/3 majority had been achieved with Higgins’ vote, which made seven. That was enough for the 2/3 majority – out of 10 present – because Mike Anglin (Ward 5) had been absent on that occasion.

Christopher Taylor and Stephen Kunselman, Ward 3 council colleagues, share a smile.

At Monday’s meeting, Kunselman had left the table and was outside council chambers when the rollcall vote was called. Briere, possibly alert to the possibility that his absence could have resulted in a 7-3 outcome – enough to get the rules suspended – asked for a brief delay, which lasted only a few seconds until Kunselman returned to his seat. Christopher Taylor, Kunselman’s Ward 3 colleague, congratulated him on his timing.

The developer of the project, Alex de Parry, and his wife Betsy de Parry were in council chambers for the vote, having returned to Ann Arbor from Denver earlier in the day. In a phone interview with The Chronicle on Tuesday, de Parry said that he landed in Ann Arbor to find a voicemail on his phone from Sandi Smith indicating that the one vote she’d counted on changing to give his project approval would not be forthcoming.

De Parry said that through August, he’d worked with Briere and Derezinski to revise the project in a way that would gain enough support to win council approval. [Additional insight from Chronicle coverage of a September city council caucus: "Council Chess Talk: Building City Place"] De Parry indicated that as they were working on LEED certification requirements, Briere had decided not to continue in the discussions, and her Ward 1 colleague, Sandi Smith, had taken up the issue. [The project itself is in Ward 5.]

In a phone interview Tuesday afternoon, after the Monday council meeting, The Chronicle asked Smith why she and Derezinski went to the trouble to bring the item forward to the agenda, if they were not certain there were sufficient votes. Smith indicated that she had confirmation from a councilmember who’d previously voted no, that they would support the project in the way it had been revised.

As far as what happens next with the Fifth Avenue properties, de Parry was not certain – he’d been working on the assumption that Heritage Row was on a path to approval. [Among his options are: (1) to start from scratch with the city's site plan approval process for the revised version of Heritage Row; (2) build the matter-of-right City Place project that already has approval; or (3) sell City Place to another developer.]

Area, Height, and Placement

At Monday’s meeting, the council considered a set of changes in the city’s zoning code for areas outside the downtown, across most of the city’s zoning classifications, for regulations affecting area, height and placement (AHP).

The council had already given initial approval of the AHP revisions at its Sept. 7, 2010 meeting. The changes are intended to allow more compact use of land, preserve natural systems, accommodate new growth along transit corridors, and locate buildings to promote non-motorized access. [Previous Chronicle coverage of the city planning commission’s deliberations on AHP changes: “AHP Zoning Revisions Go to City Council”]

The measure was set to be voted on for final, second-reading approval the council’s Oct. 4 meeting, but was postponed at the request of Marcia Higgins (Ward 4). At the council’s Oct. 18 meeting, Higgins brought forth amendments that removed some of the height restrictions that were part of the revision to the code. After some deliberation on the merits of the amendments, Higgins withdrew them and the council again elected to postpone the measure. At its Nov. 15 meeting, the council again put off a vote on the proposal.

At Monday’s meeting, Higgins again brought forward her set of amendments, to ensure that zoning districts that provide for employment uses – Office (O), Research (RE), Office/Research/Limited Industrial (ORL) – are not subject to a cap on building height, except in areas directly abutting residential areas.

The amendments proposed by Higgins, which the council approved, changed the ordinance revision in a substantial enough way that the council’s eventual approval of the AHP proposal on Monday counted only as a first-reading, initial approval.

AHP: Council Deliberations

Higgins led off deliberations by thanking her council colleagues for their patience. She proposed her amendments, which removed the height caps in areas that are considered to have potential for high employment – Office (O), Research (RE), Office/Research/Limited Industrial (ORL). She had originally included M1 (Limited Industrial) districts as well, but told her colleagues that she’d taken them off the table.

Hearing that M1 was no longer part of the set of Higgins’ amendments, Sandi Smith (Ward 4) (Ward 1) was prepared to support the amendments without modification. She’d had concerns about property near the railroad and the Huron River, zoned M1, that would have had no height cap.

Outcome on Higgins’ amendment: The council unanimously approved Higgins’ amendments to the AHP revisions.

Smith then proposed an amendment of her own, to remove the minimum square footage and width requirement for residential, single-family dwelling districts. Smith’s proposed deletion is indicated by strike-through:

(2) Permitted principal uses.

(a) Single-family dwelling firmly attached to a permanent foundation, connected to a public sewer and water supply, at least 14 feet wide and contain at least 900 square feet of floor area. Single-family dwellings in the R1E district shall not exceed 2,000 square feet of floor area.

Stephen Kunselman (Ward 3) inquired what the rationale was for the minimum width and floor area. Upon confirmation from Wendy Rampson, head of planning for the city, that it was to prevent placement of mobile homes in these districts, said that he would not be supporting the amendment.

Mayor John Hieftje elicited from Rampson the fact that attachment to a permanent foundation would also mitigate against mobile homes. Sabra Briere (Ward 1), Mike Anglin (Ward 5) and Kunselman batted the amendment around, in the course of which various facts about mobile homes emerged: a single-wide trailer typically measures 12-14 feet wide, while a double-wide measures 25-30 feet.

Smith noted that the difficulty in trying to prevent the use of manufactured housing is that it’s a building method more-so than a type of housing.

Outcome on Smith’s amendment: The council approved Smith’s amendment, with dissent from Stephen Rapundalo (Ward 2), Christopher Taylor (Ward 3), Stephen Kunsleman (Ward 3) and Mike Anglin (Ward 5).

Before the vote on the whole set of revisions as amended, Higgins expressed her thanks to the planning staff, and Carsten Hohnke (Ward 5) added a layer of thanks.

Outcome: The AHP revisions were unanimously approved by the council, but the amendments were substantial enough that the approval was considered to be only the initial, first-reading approval. An additional approval will be necessary to enact the revisions.

Rezoning of Parks to Public Land

Before the council was a resolution to rezone several park properties (Arbor Oaks Park, Berkshire Creek Nature Area, Bluffs Nature Area, Glacier Highlands Park, Mallets Creek Nature Area, Scheffler Park) from various zoning classifications – AG (Agriculture District), R1B and R1C (Single-Family Dwelling Districts), R4A and R4B (Multiple-Family Dwelling Districts), O (Office District), C1 (Local Business District) – to PL (Public Land District). The resolution is part of an ongoing comprehensive effort by planning staff to identify land used as parks and to assign it the zoning classification that the city deems appropriate to parks.

Parks to Public Land: Public Hearing

Thomas Partridge addressed the council on the rezoning, making a point that he’s made in connection to many similar rezoning proposals – that it does not go far enough because there is no stipulation that areas be set aside for use as affordable housing.

Several other speakers – Ethel Potts, Kathy Boris, Rita Mitchell and Dorothy Nordness – expressed their concern that the PL designation does not afford adequate protection for the park areas. [.pdf of full text of Mitchell's commentary]

That concern stems from the fact that other land – along Fuller Road, which is also designated as PL – is now planned for use as a parking garage and eventually a rail transit center: Fuller Road Station. [A council work session on Fuller Road Station, originally scheduled for Dec. 13, 2010, has been canceled. The cancellation was announced at Monday's meeting by city administrator, Roger Fraser.]

The land where Fuller Road Station is planned is currently used as a surface parking lot. At its July 6, 2010 meeting, the council had approved a change in the definition of the PL designation to include “transportation facilities” as a possible use, to make clear that the Fuller Road Station fell within the possible uses for PL. Before the council enacted that change, based on a recommendation from the city planning commission, the possible uses included municipal airports, among other things.

In that context, Boris, during her time at the podium, asked the council what assurance the public had that the land being rezoned to PL that night would not be repurposed as a transportation facility. Potts challenged the council to provide assurance that park land can be protected for continued use as parks. Mitchell pointed specifically to the part of the zoning code that provides: “No structure shall be erected or maintained upon dedicated park land which is not customarily incidental to the principal use of the land.” [The city's analysis of the Fuller Road property is that it is not technically "dedicated park land."]

Parks to Public Land: Council Deliberations

Marcia Higgins (Ward 4) inquired why the Arbor Hills Nature Area – which had appeared on an original list of park areas recommended by planning staff to be rezoned as PL – was not included in the recommendation. The conclusion of that discussion with Wendy Rampson, head of planning for the city, included the fact that the land is currently zoned as a planned unit development (PUD) in connection with a condominium development, with includes various utilities.

Outcome: The rezoning of the parks properties was unanimously approved by the council.

Compost Facility

Before the council was a resolution to approve a five-year contract with WeCare Organics for the operation of the city’s composting operations. The arrangement would result in the payment of tipping fees by the city to WeCare in an amount not to exceed $200,000 a year, and the transfer of current city union workers at the facility to other open positions at the city. The move is estimated to save the city’s solid waste fund about $65,000 in the current fiscal year and more than $375,000 a year starting in FY 2012, which begins July 1, 2011. The resolution had been postponed from the council’s Nov. 15 meeting, when it received considerable discussion by the council and commentary from the public.

The proposal to transform the city’s compost center to a merchant operation had previously been discussed with the council during the FY 2011 budget planning process at a March 8, 2010 budget work session. From Chronicle coverage of that session:

Conversion to Merchant Composting Operations

McCormick’s budget impact statement for solid waste also indicates a net gain of $150,000 for the possible transfer of the city’s composting facility to a merchant operation. That gain was due to a one-time capital recovery for the sale of equipment to the successful bidder on the request for proposals (RFP). The city’s RFP for the composting operations indicates that the equipment would include items like front-end loaders, light-duty trucks, and tub grinders.

Tony Derezinski (Ward 2) inquired about any implications for the city’s labor agreement. McCormick told him there were two full-time positions at the city that would be lost – a mechanic and a supervisor – but that the city had held vacancies open for them in other parts of the organization.

Sabra Briere (Ward 1) wondered what would happen if the city contracted with a merchant, then elected to decide against that contractor based on performance and then opt for a different contractor. McCormick indicated that the city had received four strong responses to the RFP.

Stephen Kunselman (Ward 3) was clear about his opposition to the the proposed conversion to merchant operations: “I’m really opposed to this,” he said. At the second round of budget talks he had already expressed skepticism about the idea.

Kunselman’s opposition is based in part on an inherent skepticism about the viability of yard waste compost as a commodity, along the lines of recyclable material. [The city uses a merchant operation for its materials recovery facility.] Because it’s not a commodity that can be reliably sold in large quantities, said Kunselman, the city would essentially be providing the merchant with tax-free land to store compostable material, until it could eventually be moved on the market. He said he did not imagine that they would be able to sell the material in 50-pound bags at Lowes.

Kunselman’s opposition is also based on the idea that there’s a built-in assumption that the merchant operation will accept yard waste from other surrounding communities – even while the city is trying to encourage its own residents to “keep it home” and reduce the amount of yard waste that is hauled from one place to another. [The elimination of the loose leaf collection program is one example.] Conversion to merchant operations, he said, was a way of subsidizing yard waste collection for surrounding suburban communities. Promoting the idea of trucking and hauling yard waste, Kunselman said, is “going in the wrong direction.”

Kunselman also noted that the composting facility was located in the southeast part of the city – his ward – and he did not want to see additional truck traffic on the roads in that part of town.

Compost: Public Commentary

Scheduled to address the council during public commentary was Phyllis Ponvert, who also attended the Sunday night city council caucus the previous evening to express her objections to the proposed contract with WeCare. Ponvert chose not to address the council; however, the sentiments she conveyed in an email to The Chronicle touched on many of the issues expressed by councilmembers and other members of the public. She questioned whether adequate effort had been put into making the city’s compost operation competitive with privately produced compost products, and expressed concern about any possibility that WeCare might contract with other communities to introduce biosolids from sanitary sewer systems into the city of Ann Arbor’s composting facility’s operations. She called for the creation of a taskforce:

City Council must put a hold on the decision to outsource the facility. Hold public hearings and create a task force to come up with a plan to keep the compost facility. Responsible oversight with on site management and creative marketing will enable the compost facility to pay for itself.

Appearing before the council was Jeannine Palms, who described the quality of the city’s compost end product as “black gold.” She asked the council to postpone action on the proposal so that the city staff could review the details of the proposal at a citizen meeting. She appealed to the notions of investment in social capital, shared prosperity and ecological equity.

Again delivering her public commentary in the form of a song – this one to the tune of “You Better Watch Out” – was Libby Hunter. The lyrics included a characterization of the contract with WeCare as a “sweetheart deal.”

Following Hunter at the podium was Nicholas Nightwine, who is president of the AFSCME Local 369. In response to a quip from mayor John Hieftje, Nightwine indicated that he would not be providing music. Nightwine noted that he’d addressed the council on previous occasions on the same topic. He reiterated his point that some of the compost facilities financial losses are due to pricing the end product at below-market rates. He asked the council to consider working to fix some of the operating shortfalls, before outsourcing the compost facility’s operation to a company based in another state. [WeCare Organics is New York-based, whereas another bidder, Spurt Industries, is based in Michigan.] Nightwine rejected the characterization of the proposed arrangement with WeCare as a partnership, saying that it was a “privatization of services.” If it were a partnership, he said, then WeCare would also share in the financial losses – which are expected to continue for the city, but at a much reduced level.

Lou Glorie noted that the composting facility is not a “greenish frill” but rather a state-mandated core service, because the dumping of yard waste in landfills is prohibited by state law. The cost of maintenance for the facility, she said, would continue to be shouldered by the city, which would result in a situation where the profit is privatized, but the cost is socialized.

Compost: Council Deliberations

Stephen Kunselman (Ward 3) led off council deliberations by making a gambit for a postponement in order to facilitate additional public engagement, saying it was no different than the current process underway to determine if the city wanted to contract out for operation of Huron Hills golf course. Sandi Smith (Ward 1) said she also had concerns but felt they could get answers in two weeks, which was shorter than the timeline that Kunselman seemed to have in mind.

Hieftje said he wouldn’t support a postponement at that point in the meeting, given that there was a lot of false information that had been put out. He felt the council meeting was an educational opportunity. If there were questions at the end of the discussion, he said, he might be willing to entertain a postponement.

Sabra Briere (Ward 1) said she was also hoping for some kind of discussion that evening, which would be precluded by a successful vote to postpone, so she asked Kunselman to withdraw the motion to postpone, which he did.

Mike Anglin (Ward 5) echoed concerns expressed during public commentary that the city had not made an adequate effort to make the compost facility profitable. He noted that several acres had been purchased to create the facility and the challenge is how to make the facility a benefit to our community. He expressed concern that the state law could change and allow for inclusion of biosolids. He called for the inclusion of the University of Michigan School of Natural Resources and Environment as a part of the effort.

Smith ticked through a number of questions for the city’s solid waste coordinator, Tom McMurtrie. She wanted some clarification about the setting of prices – in the context of the possibility that prices for the end product were set too low by the city for the compost facility to have been profitable. McMurtrie allowed that pricing was not in the core competency of the city.

McMurtrie outlined how circumstance this past spring had led to the setting of very low prices in order to try to liquidate some of the inventory of compost that had accumulated on the compost facility site –  state law limits the amount of compost that can be stored on property, and it also has a shelf life. Those same circumstances led to a lack of availability of compost for local residents, who were accustomed to being able to purchase a finished compost product from the city.

An explanation from McMurtrie for the shortage of compost available to city residents was conveyed to The Chronicle last spring. McMurtrie’s explanation described how it was not a policy decision, but rather an operational error that resulted in the shortage:

… For these reasons, and the fact that finished compost loses its nutrient value over time, we were interested in selling this substantial backlog of materials.

In an effort to gauge the wholesale market for this material, the city issued an invitation to bid in 2009 requesting pricing for 1,000 cubic yards or more. This bid was sent to approximately 100 landscape suppliers in the area. Two bids were received: One at 50 cents per cubic yard, and the other at $2.75 per cubic yard, for 1,000 cubic yards. The City decided to reject the 50 cents per cubic yard bid, and price the bulk purchases at $2.75 per cubic yard.

Normally, a small amount of compost would be retained for small quantity sales such as to homeowners. Due to operational error, that small set aside was not retained. Changes in operations are being reviewed to prevent that from happening again.

Later in deliberations, Briere established that the city did not track statistically how much compost local residents used. She pressed McMurtie to account for the city’s estimate that the 1,000 cubic yards that would be set aside for sale to residents under the WeCare contract would be sufficient. McMurtrie said the figure was based on input from staff at the compost facility and at the scale house.

Sue McCormick, public services area administrator, responded to a query from Smith about the business case for adopting the contract with WeCare now, as opposed to waiting a year. McCormick said that everything is about the cost of providing the service – $600,000 for the city to run the operation versus $200,000 to pay WeCare to do it. “I don’t know how to put it more simply,” she concluded. She said it was a possibility for the city to try to bring in increased tonnages of yard waste from surrounding communities and to charge those communities tip fees – essentially playing the same role that WeCare would play under the proposed contract.

However, McCormick pointed out that the city staff had asked the council to do that when Waste Management had expressed interest in establishing a long-term contract with the city to roughly double the tonnages it brought to the city’s compost facility. But the city council had turned down the request. By way of specific background, the vote came on April 3, 2007. From the resolution:

…

Whereas, Waste Management of Michigan, Inc. is interested in initially delivering approximately 10,000 tons/year and ultimately 20,000 tons/year of compost from its Central Wayne Disposal Authority communities, including Wayne, Westland, Inkster, Garden City and Dearborn Heights to the Ann Arbor Compost Center;

Whereas, The City expects to generate approximately $335,000.00 in tipping fee revenue during the first full year of the ten year agreement with Waste Management for the processing and buy-back of finished compost;

Whereas, It is forecast that a net return to fund balance of $1,500,000.00 will be generated by the City during the life of this agreement;

…

RESOLVED, That City Council approves a ten-year agreement with Waste Management of Michigan, Inc. commencing May 1, 2007 and continuing until June 30, 2017 subject to the terms of the contract for the delivery and processing of yard waste at the Ann Arbor Compost Center;

That 2007 vote was 5-4. Voting yes were [councilmembers currently serving on the council are in italics]: Joan Lowenstein, Leigh Greden, Margie Teall, Chris Easthope, and John Hieftje. Voting no were:  Ron Suarez, Stephen Kunselman, Marcia Higgins, Wendy Woods. Stephen Rapundalo and Bob Johnson were absent.

At Monday’s meeting, McCormick said that without the guaranteed throughput of long-term contracts, it was difficult to market the finished product. McMurtrie indicated that when the city subsequently raised its tipping fees, Waste Management had elected to stop bringing any material to the city’s facility.

Kunselman quizzed McMurtie on the terms of the WeCare contract: Could WeCare charge other communities less per ton as a tipping fee than it charges the city of Ann Arbor? Matt Kulhanek, fleet and facility manager with the city, confirmed this is the case. Kunselman said he objected to that on basic principle. Hieftje indicated that he did not see how the city would be damaged by that – Kulhanek concurred.

With respect to the pricing of Ann Arbor’s tipping fee versus what WeCare might charge other communities, Christopher Taylor (Ward 3) wondered if some kind of “most favored nation” status for the city could be explored with WeCare. McMurtrie said that the contract with WeCare is modeled on the one that the city has with FCR to operate the city’s materials recovery center.

Mike Nicholson, senior vice president with WeCare Organics, put the tipping fee charges in the context of the total cost to another community to tip yard waste at the Ann Arbor facility. Compared to the $19/ton that Ann Arbor would be charged under the contract, Nicholson suggested by way of a purely hypothetical example that the city of Detroit could be charged $17/ton, but that their cost for transfer from Detroit to Ann Arbor might well work out to $10/ton, so that their total cost would come to $27/ton – more than what it cost Ann Arbor, which has no transfer costs after collection of the material.

Carsten Hohnke (Ward 5) drew out the fact that the length of a contract WeCare might be able to achieve could also affect the tipping fee – WeCare might offer a lower tipping fee in order to secure a longer-term deal.

Smith asked Kulhanek to explain how the New York-based WeCare was selected over a Michigan company, Spurt Industries, which had submitted a proposal that appeared competitive on cost. Kulhanek clarified that the bidders where evaluated on their technical competency separately from the financial proposal. WeCare not only had more experience, Kulhanek said, but also specific experience working with municipalities. Spurt’s tipping fees, he said, were lower and went up each year of the contract, whereas WeCare’s went down. He also said that Spurt’s estimated additional tonnages they could achieve contracts for – 30-40 tons– may not be realistic.

Smith also established with city staff and with Nicholson that the combination of state law and the contract language with WeCare meant that there is no possibility biosolids would be introduced at the city compost facility.

Hohnke elicited an assurance from McMurtrie that the quality of the end product would continue to be high – it would be tested three times a year. Councilmembers engaged in some discussion of the possibility that some amount  of compost might be made available to Ann Arbor residents at no cost to them for the compost – it would cost something for the city to make that part of the contract.

Kunselman allowed that the deliberations had dispelled much of the misinformation, but noting the late hour – the meeting did not conclude until after 1 a.m. – said that many residents don’t stay up past midnight or get the news. So he made another bid for postponement. Hieftje said he didn’t see a reason to postpone, but also did not see a downside. Smith asked McCormick if a two-week delay would have a negative impact on the city and WeCare’s ability to implement the transition before the spring. After consulting briefly with Nicholson, McCormick indicated that “a two week delay may not kill us,” but did not convey any enthusiasm for delaying.

Outcome on postponement: The motion to postpone failed, with only Briere, Kunselman, Anglin and Smith voting for it.

Outcome on the resolution: The council approved the five-year contract with WeCare, with Kunselman and Anglin dissenting.

Medical Marijuana Licensing

Before the council was a draft of a licensing scheme for medical marijuana dispensaries, cultivation facilities and home occupations that the city attorney’s office had put together. Key elements of the licensing to be considered included: no more than 15 licenses will made available citywide for cultivation facilities and dispensaries; preference for applications will be given to facilities operating before Aug. 5, 2010, when the city council passed a moratorium on use of facilities for dispensing and cultivation; provision of names and addresses of various individuals associated with a facility; installation of security measures; posting of signage advising that use of marijuana is against federal law; consent to inspections of unspecified frequency. [.pdf of original draft licensing ordinance]

The specific direction to undertake the drafting of the licensing scheme came at the council’s Oct. 18 meeting from Tony Derezinski (Ward 2), who serves as the city council’s representative on the planning commission. By council rule, the introduction of ordinances like medical marijuana licensing is stipulated to come from councilmembers, but ordinances can be referred by councilmembers to other entities within the city, like the city attorney’s office:

RULE 13 – Ordinances, How Introduced

Proposed ordinances shall be introduced by one or more individual members of Council. Ordinances may be referred to any or all of the following: the City Attorney, the City Administrator, appropriate agencies, and Council committees, for study and recommendation. Ordinances shall be reported back to the working committee of the Council.

As a member of the planning commission, Derezinski had voted to recommend a zoning ordinance, as well as an unspecified licensing scheme. The zoning ordinance, which came before the city council at its Oct. 18 meeting and was approved then at its first reading, also enjoyed unanimous support on the planning commission. In broad strokes, under the proposed zoning ordinance, medical marijuana dispensaries can only be located in zoning districts classified as D (Downtown), C (Business), or M (Industrial), or in PUD (planned unit development) districts where retail is permitted in the supplemental regulations. Also, medical marijuana cultivation facilities would only be located in C (Business), M (Industrial), RE (Research), or ORL (Office/Research/Limited Industrial) districts.

However, the licensing proposal did not enjoy unanimous support on the planning commission. From The Chronicle’s account of the Oct. 5 planning commission meeting:

There were no additional details in the planning staff report about a possible license. Although it had been mentioned at previous meetings that the city attorney’s office was developing a proposal about licensing medical marijuana businesses, planning commissioners had not previously discussed the topic in depth.

Deliberations were brief. Jean Carlberg asked whether a license would only apply to dispensaries, or if it would be required of cultivation facilities and “home occupation” businesses as well. Kristen Larcom of the city attorney’s office said she didn’t know, because they hadn’t yet drafted a proposal for the license. Kirk Westphal asked if the license might include a cap on the number of dispensaries in the city, or require that there be building security. Larcom said that it might.

Outcome: In a 7-1 vote, the planning commission approved a motion to recommend that city council institute a medical marijuana business license. Eric Mahler dissented, and Wendy Woods was absent from the meeting.

Mahler did not comment during the public meeting on this issue. When asked by The Chronicle following the meeting about his reason for voting against it, Mahler indicated that they didn’t know what the license would entail at this point, and it was difficult to support something without that information.

The planning commission had undertaken their study and recommendation of a zoning ordinance at the direction of the city council as part of the moratorium on medical marijuana dispensaries and cultivation facilities, which it passed on Aug. 5, 2010. However, the resolution establishing the moratorium did not reference a licensing scheme.

Medical Marijuana: Public Comment

Chuck Ream appeared before the council to criticize the draft licensing proposal that the city attorney’s office had produced. He began by complimenting the city’s planning commission for the tremendous work they’d done on the zoning ordinance, but he did not lavish the same praise on the city attorney’s office for its work on the licensing scheme. The inspection of dispensaries as home occupations, he said, is illegal under the Michigan Medical Marijuana Act. The current draft of the licensing scheme inappropriately mixes dispensaries with cultivation facilities, he said.

Ream said that the people of Ann Arbor did want the council and the city attorney’s office to do things that are illegal, cautioning against any attempt by the Michigan Association of Municipal Attorneys to take over the state act. He noted that ACLU lawsuits have begun, and cautioned against Ann Arbor setting a bad example for other communities in the state.

Medical Marijuana: Council Deliberations

City attorney Stephen Postema began by giving his perspective on the issue, which appears heavily influenced by the general prohibition in federal law against use of marijuana. “Federal law does not allow any of this,” he stated. The signage required of licensees under the licensing scheme would read:

THE MICHIGAN MEDICAL MARIHUANA ACT ACKNOWLEDGES THAT “FEDERAL LAW CURRENTLY PROHIBITS ANY USE OF MARIHUANA EXCEPT UNDER VERY LIMITED CIRCUMSTANCES.” SEE, MCL 333.26422(c). IF YOU HAVE ANY QUESTIONS OR CONCERNS PLEASE CONSULT WITH YOUR ATTORNEY.

Postema cited the unclarity of the Michigan Medical Marijuana Act, which was enacted by statewide voter referendum in 2008. He contended that there is a question about whether the absence of reference in the state law to dispensaries indicates that such facilities are allowed or rather that they are prohibited.

Postema indicated that the proposed licensing scheme combined businesses and home occupations into a single ordinance. It was this point on which Carsten Hohnke (Ward 5) focused in opening the council questioning of Postema: Why were both businesses and home occupations subject to licensing? In answering Hohnke, Postema indicated dispensaries were felt to need regulation, based on the negative experience of other communities in California and Colorado. An approach where there was no regulation, Postema said, was acknowledged as a “clear error.” Postema then said that Colorado now had a much higher level of regulation than what he was proposing. He alluded to various safety concerns, and contended that federal authorities have not taken a hands-off policy. Postema did not mention home occupations in his response.

Hohnke followed up by asking specifically why home occupations were included. Postema suggested that a licensing mechanism for home occupations would help prevent LAWNET (the Livingston and Washtenaw Narcotics Enforcement Team) and the Ann Arbor police department from raiding a suspected illegal operation, only to find out after the fact that it was a licensed operation. Hohnke concluded that this was potentially a benefit to the licensee.

Hohnke pressed Postema on the issue that Ream had raised during public commentary, namely the apparent conflict between Postema’s proposed regulations and the state law provision that those who apply for registry cards not be subject to inspection. From the state law:

Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency.

Postema said that the state law does not prohibit all inspection, but does afford a broad provision against prosecution for personal or caregiver use. Postema alluded to the broad powers that municipalities have to ensure safety. He indicated that he thinks the licensing requirements are reasonable, but that they may have to be tested in court.

Picking up on the idea that it would be useful to know “who not to go after,” Christopher Taylor (Ward 3) floated the idea of getting addresses from the state registry, but Postema seemed to indicate that this would not be feasible. Taylor wondered if people who grow orchids indoors are subject to the same kind of ventilation requirements that would be imposed on licensees.

Sandi Smith (Ward 1) suggested that a portion of the licensing fee be allocated to an educational effort. In response to a question from Stephen Kunselman (Ward 3) Postema suggested that the licensee fee might be a few hundred dollars. The fee has not yet been specified, but will eventually be set by the council, according to the draft ordinance.

Kunselman wanted to know what the rationale was for the limit of 15 licenses. Postema allowed that it was a good question. He said that some kind of cap was appropriate, due to the ambiguity of the state law and safety concerns. He deferred to Wendy Rampson, head of planning for the city, for the rationale for the number. She said there were bit more than 43,000 registered patients in the state of Michigan so far, but she allowed the number would go up. That’s less that 1% of the population of Michigan.

If 5% of Ann Arbor residents were registered patients, she said, that would work out to 5,700 patients. For dispensaries already operating, she said, the number of patients they serve ranges between 300 and 1,000. Assuming that a typical dispensary might serve 500 patients, 12 dispensaries could serve the needs of the estimated 5,700 patients. She concluded that 15 would be a good starting point, and after a year, the city would have a clearer understanding of what an appropriate number would be.

Kunselman asked if limiting the number of licenses could have the consequence of driving the creation of larger dispensaries. Postema allowed that it could.

Sabra Briere (Ward 1) observed that the ordinance was before the council at its first reading and that the council should have more answers to their questions than they currently did. She suggested that they could either work on it more between the first and second reading of the ordinance, or they could postpone its consideration. She asked Postema what he thought the council should do. Postema suggested a postponement.

Outcome: The council unanimously voted to postpone the medical marijuana licensing scheme until its Jan. 3, 2011 meeting. The new zoning rules regulating where medical marijuana dispensaries and cultivation facilities can be located, which were scheduled to be heard at second reading on Dec. 20, were rescheduled for Jan. 18.

Michigan Vehicle Code Adoption

Before the council for its first reading was a measure that proposed to adopt the complete Michigan Vehicle Code (MVC) as a part of the city code – Chapter 126 Traffic. In early 2008, the council had adopted the MVC, but excluded portions of the MVC addressing speed limits. [.pdf of corresponding Michigan Vehicle Code]

Part of the background to the proposal is that the city of Ann Arbor lost an August 2008 court case in which two speeding tickets issued in late 2007 were thrown out, because the city of Ann Arbor’s posted speed limits did not conform to state law with respect to the number of access points in a half-mile stretch of road, or a guideline that stipulates posted limits not be lower than the travel speed of the 85th percentile of traffic. From an Aug. 23, 2008 Ann Arbor News article:

An Ann Arbor judge’s decision to throw out two speeding tickets last January – along with the way the city sets speed limits  – was upheld on appeal in Washtenaw County Circuit Court on Friday.

…

Two Ann Arbor residents who were ticketed for speeding last year challenged the legality of the posted speed limits. They based their argument on a 2006 state Motor Vehicle Code that requires the use of the number of access points – driveways and intersections along a half-mile stretch of road – to set speed limits. The fewer access points, the higher the speed that must be set under the law.

One of the ticketed drivers, James Walker, is a recognized expert on speed limits. He’s testified before state lawmakers on setting 85th percentile speed limits.

National studies indicate that setting limits at or below the speed that 85 percent of drivers travel reduces friction between drivers and boosts safety.

Walker said Ann Arbor’s posted limits typically fall in the 10th to 30th percentile of the speeds drivers actually travel.

Walker’s attorney, John Shea, argued that the city cannot legally set a limit other that what’s allowed under the access-point law unless it adopts the 2006 Uniform Traffic Code, which allows cities to use the 85th percentile formula.

Sabra Briere (Ward 1), Tony Derezinski (Ward 2), and Stephen Rapundalo (Ward 2).

On Monday, Tony Derezinski (Ward 2) introduced the proposal to adopt the MVC by noting there’d been some sentiment expressed in the community that some of the local speed limits appear to be set too low, and part of the impetus to change the city’s code to bring it into conformity with the MVC was based on the implicit threat of a class-action lawsuit.

In the back-and-forth among city attorney Stephen Postema, mayor John Hieftje and Sabra Briere (Ward 1), it emerged that Postema felt that adoption of the complete MVC would allow the city to contemplate additional speed studies as part of the method it uses to set speed limits.

Outcome: The council voted unanimously to adopt the MVC as a part of its traffic code for the ordinance change on first reading. To enact the change will require a final approval at a second reading after a public hearing.

Communications and Comment

Sometimes city council meetings include presentations at the start of the meeting that fall under the “introductions” section of  the agenda. There are also multiple slots on every agenda for city councilmembers and the city administrator to give updates or make announcements about important issues that are coming before the city council. And every meeting typically includes public commentary on subjects not necessarily on the agenda.

Comm/Comm: Christmas Trees

Sabra Briere (Ward 1) asked the question: What are people supposed to do with their Christmas trees after Christmas? The question arose because the city has announced it will not be picking them up immediately after the holidays. Sue McCormick, the city’s public services area administrator, sketched out three options: (1) take trees to the drop-off station, at 2950 E. Ellsworth, (2) leave them in the backyard for the birds, or (3) cut them up and place them in a compost cart – they’ll be picked up when yard waste collection resumes in April.

Comm/Comm: Library Lot

Alan Haber addressed the council on the topic of the future use of the city-owned Library Lot, on the top of the underground parking garage currently under construction on Fifth Avenue. He criticized what he characterized as an inclination to transform public property into something private. He suggested that The Roxbury Group’s report – evaluating the two finalist proposals that had come in response to the city’s RFP (request for proposals) for the lot’s future – was a matter of hiring a consultant to tell the city to do what the city already wanted to do. He contended that the Library Lot is the only suitable spot for a public gathering place in the city, that could serve as the center’s city. [In response to the city's RFP, Haber had helped to put forward a proposal for a community commons, which was ultimately rejected by the review committee. Coverage of the Ann Arbor Downtown Development Authority board's Dec. 1 meeting includes that body's reaction to The Roxbury Group's report.]

Haber’s wife, Odile Hugont-Haber, also addressed the council on the topic of the future use of the Library Lot. She said she wants to see a green area there. She described how there is no place for citizens of Ann Arbor to interact other than perhaps the “gourmet ghetto” of the Main Street area. Creating a community commons at the Library Lot site, she said, was not a matter of money, but a matter of will. She called for the inclusion of children’s playground equipment at the site.

In his time for communications, Stephen Rapundalo (Ward 2), who chairs the committee that is reviewing responses to the Library Lot proposals, indicated that no decisions have yet been made. [The Roxbury Group's report indicated a preference for the proposal from Valiant for a hotel/conference center, over Acquest's proposal for a hotel.] Rapundalo stated that it had not been the task of the consultant to do a feasibility study, but rather to determine whether the proposers had the wherewithal to bring their proposals to completion.

Comm/Comm: Affordable Housing

Lily Au appeared before the council to criticize an Avalon Housing plan to demolish apartments at 1500 Pauline Blvd. and built new units. [Chronicle coverage of the Avalon proposal: "Low Income Housing Project Planned"] She told the council she was wearing black to mourn the death of a homeless person who had died behind the Kroger at Westgate.

Comm/Comm: Progressive Agenda

Thomas Partridge called upon the city council to renew a spirit of goodwill, and called upon the new governor’s state administration to enact measures to support affordable housing, transportation, health care and education.

Comm/Comm: Liquor License for Bar Louie

Tim Hull addressed the council on the topic of an agenda item involving a liquor license transfer from one corporate entity to another related one – from Bar Louie Ann Arbor, Inc. to BL Restaurant Operations, LLC.  d/b/a Bar Louie. Hull told the council that he’d tried to get service from Bar Louie, using his state ID for proof of age, but had been denied service because he could not produce a driver’s license. Hull told the council he does not own a car and does not have a license. He encouraged the council to use the occasion of a liquor license transfer as an opportunity to raise those types of issues with licensees. The council later approved the request for transfer without comment.

Comm/Comm: Budget, Economics

Kirk Profit – director of Governmental Consultant Services Inc., which the city retains as its paid lobbyist in Lansing – gave the council a presentation on the condition of the state’s budget, in the context of a transition to a new governor and new leadership in the legislature.

Councilmembers and city administrator Roger Fraser reported out in various ways from the  council’s 8 a.m.-2 p.m. Dec. 4 budget retreat. One key theme of the retreat, which was organized around a list of city services, was communication. The topic came up in the context of communication between the administration and the public, between the public and the city council, between the city’s labor unions and the administration, and between individual councilmembers.

The Chronicle will offer coverage of the Dec. 4 retreat and discussion of it from Monday’s council meeting separate from this meeting report.

Comm/Comm: Dundee’s Appreciation

Representatives from Dundee Village and Dundee Township appeared before the council to express their thanks for assistance the city had provided to them in connection with the June 6, 2010 tornado disaster that had struck their community.

Comm/Comm: Human Rights Award

Leslie Stambaugh appeared before the council on behalf of the city’s human rights commission to present the city with a plaque from the Michigan Alliance Against Hate Crimes, recognizing the Ann Arbor community response group.

Comm/Comm: Ann Arbor Skatepark

Trevor Staples and Scott Rosencrans gave a presentation to the council on behalf of the Friends of the Ann Arbor Skatepark, tracing the history of the group from a loosely organized collection of individuals to a formally established nonprofit corporation. A highlight of the presentation was the group’s participation in a $250,000 challenge sponsored by Pepsi. In the Pepsi Refresh challenge project, proposals compete for votes each month – one vote per project is allowed each day. The skatepark is competing for the month of December. To vote for the Ann Arbor Skatepark proposal, Chronicle readers can visit the website: Pepsi Refresh Project.

Comm/Comm: Rugby NAP Volunteers

At one of the council’s two council meetings per month, a proclamation is made to honor specific volunteers in the city’s parks program. This month, recognition was given to the rugby community, which includes men’s and women’s teams at the University of Michigan as well as city-based teams. The park they’ve adopted is the one where they practice and play, Riverside Park. [Chronicle Rugby coverage: "Football Saturday, Not Just at the Big House"]

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: Monday, Dec. 20, 2010 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]