Before the Nov. 21 meeting, former councilmember Leslie Morris (left) might be reminding Jane Lumm (Ward 2) which ward Lumm represents on the Ann Arbor city council. (Photos by the writer.)

In the end, the council gave initial approval to an ordinance amendment that would temporarily reduce the required allocation to public art from city capital improvement projects – from 1% to 0.5% for a period of three years. After three years, the percentage would automatically revert to 1%. Of the various amendments to the ordinance, the percentage of the required allocation was the focus of the most controversy during council deliberations. A bid by Jane Lumm (Ward 2) to lower the percentage further to 0.25% gained little support.

Other art ordinance amendments given the council’s initial approval include a requirement that public art money be returned to its fund of origin after three years, if not encumbered by a specific art project. The amendment also included a definitional change that effectively excludes sidewalk repair from the public art ordinance. The amendments also addressed the general fund, making explicit the exclusion of general fund projects from the public art ordinance.

During deliberations, city staff confirmed that at least a portion of the public art allocation required from the new municipal building (aka the police/courts building) could be associated with the general fund – about $50,000 out of the $250,000. [This is for art in the interior of the building, and is separate from the outdoor fountain designed by German artist Herbert Dreiseitl.]

As part of her Ward 2 election campaign, Jane Lumm had argued that general fund dollars were connected to supporting public art at the new municipal building – an idea that had been, until Monday’s meeting, poo-pooed by some councilmembers, including mayor John Hieftje, who had said no general fund money had been used for the public art program.

Lumm was active in her first council meeting since serving in the 1990s. During deliberations on a revision to the ordinance on the city’s greenbelt boundaries, she prompted extended discussion on the part of the revision dealing with the boundary expansion. A less controversial part of the proposed revision involved allowing parcels adjacent to the boundary to be eligible for protection. In the end, the council gave initial approval to both parts of the greenbelt boundary change.

Also related to land use were two site plans on the agenda. The council gave initial approval to altering the University Bank site plan for its property at 2015 Washtenaw Ave., known as the Hoover Mansion. And the council signed off on the site plan, as well as the brownfield plan, for Arbor Hills Crossing, a proposed retail and office complex at Platt and Washtenaw.

Because the content of a proposed revision to the city’s littering and handbill law was not available to the public until late in the day Monday, just before the council met, the council postponed its consideration of that item. The ordinance amendment would allow residents to prevent delivery of unwanted newspapers to their homes by posting a notice on their front doors.

In other business, the council expressed its opposition to a bill pending in the Michigan legislature that would nullify an Ann Arbor ordinance on non-discrimination against people based on sexual orientation, gender identity, or student status. At the meeting, the council also authorized acceptance of several grants for the 15th District Court for programs on domestic violence and substance abuse.

In routine business for the first council meeting after newly elected councilmembers take office, the council elected Marcia Higgins (Ward 4) as mayor pro tem. Committee appointments and rule changes were postponed until Dec. 5.

Public Art Ordinance Amendment

The council was asked to give initial approval to a revision to the city’s public art ordinance that temporarily reduces the amount allocated from all capital project budgets to public art from 1% to 0.5%. Currently, the city has a law –enacted in 2007 – that requires 1% of all capital project budgets to include 1% for public art, with a limit of $250,000 per project.

The reduction in the allocation would apply for the next three years, from 2012-2015. The three-year timeframe is also a key part of a sunsetting amendment to funds accumulated under the proposed public art ordinance, which was also given initial approval on Monday night. That amendment requires that future funds reserved for public art under the ordinance must be allocated within three years. Money that is unspent or unallocated after three years must be returned to its fund of origin. However, an amendment offered from the floor and approved at Monday’s meeting makes it possible for the council to extend the deadline for successive periods, each extension for no more than six months.

The sunsetting clause comes in response to criticism about the pace at which public art has been acquired. More than $500,000 has accumulated for public art over the last five years, just from projects funded with the street repair tax – money that has yet to be spent on the acquisition of public art. Critics of the program also point to legal issues connected with the use of dedicated millage funds or fee-based utility funds for public art.

In addition to the temporary reduction from 1% to 0.5% and the sunsetting clause, the set of amendments before the council included a definition of capital improvement projects that excludes sidewalk repair from the ordinance requirement. Voters on Nov. 8 approved a new 0.125 mill tax that is supposed to allow the city to take over responsibility for the repair of sidewalks. Previously, sidewalk repair was paid for by adjacent property owners.

The amendments also excluded the ordinance from applying to any capital projects funded out of the general fund. Such projects are in any case rare.

As with all changes to city ordinances, the amendments to the public art ordinance will need a second approval from the council, following a public hearing. [Additional Chronicle coverage: "Council Preview: Public Art Ordinance"]

Art: Public Commentary

Brenda Oelbaum introduced herself as vice president of the Midwest Region of the Women’s Caucus for Art. She lives in Ward 2. Since moving to Ann Arbor 16 years ago, she contended that she’s seen a drop in support for the arts – except for 2007, when the percent for art ordinance was passed. She contended that the Ann Arbor Art Center has shrunk and that the annual art fairs are turning into dusty wastelands. Fairy doors, pig skins, and bike racks are not really public art, she said, while she’s heard that FestiFools is not going to be funded by the University of Michigan in the future. She stated that the city’s public art ordinance is the only way we can incorporate art into our lives.

Oelbaum told councilmembers they are being shortsighted by reducing the funding and requiring that the money be spent within a certain period of time. Art takes time, money and consideration. She described the Women’s Caucus for Art as a 40-year-old organization with 1,700 members. A group from that organization had recently taken a day-long tour of art in Nicollet Mall in Minneapolis. On the trip, she said, some of the women were lying on the ground taking rubbings of manhole covers. Art does a lot for the city’s standing in the state and the United States, she said. All you have to do is look at the Grand Rapids ArtPrize competition, she said.

Thomas Partridge introduced himself as a resident of Ann Arbor and Washtenaw County, and a Democratic candidate for the state senate in 2010. He spoke to his usual themes of ending illegal forms of discrimination and providing affordable housing, transportation and education. He called on the council to stop funding unnecessary projects and called the Dreiseitl sculpture, funded with public art money, a “junkyard object.”

During the time set aside for public commentary at the end of the meeting, Partridge criticized the council for taking so much time to discuss public art, instead of giving priority to issues affecting seniors and disabled people.

Margaret Erickson introduced herself as a resident of Ann Arbor. She told the council she partakes in a variety of cultural events. One reason she chose to live in Ann Arbor 20 years ago was Ann Arbor’s accessible, rich cultural life. Works of public art provide a vital social fabric, she said, which allows us to see ourselves as a diverse culture. She told the council it’s easy to eliminate things that seem trivial, but Ann Arbor’s public art is a way of making the town beautiful. It also reinforces Ann Arbor’s connected community.

Margaret Parker said she’d served on Ann Arbor’s public art commission since 2004. [Although the public art ordinance was enacted in 2007, the city had a Commission on Art in Public Places (CAPP) before that time. The advisory group is now called the Ann Arbor Public Art Commission (AAPAC).]

Parker thanked the council for its support in the past. She recounted how $80,000 in private donations had been raised for public art for the parking structure at Washington & Fourth. The money had been raised by one volunteer. For the painted water tower on Plymouth Road, she said, $30,000 in private donations had been raised – by her. She had made the rounds to the same people who had donated to the parking structure and she’d heard the question: Why didn’t the city water fund pay for the water tower art?

Potential donors saw a disconnect between private funding and public benefit, she said. The city of Ann Arbor doesn’t have a revolving door of fresh donors like the University of Michigan does for the kind of art it has installed on its north campus. Funding for public art doesn’t raise the cost of any project, she contended. The Ann Arbor Downtown Development Authority has adopted the percent for art program, as has the Ann Arbor Transportation Authority, she stated. She contended that the program is accepted as legal and has been used across the United States. She pointed to the one completed major project [the Dreiseitl water sculpture] and a smaller one in West Park. Six  more projects are in the works, she said. The commission also has plans to improve its procedures.

Wiltrud Simbuerger told the council that since she became a member of AAPAC this year, the feedback from the community has been positive. The desire and support for public art is there, she said. Criticism is based on the unspent money and speed at which art is created. She told the council that she is now responsible for the mural program. [Jeff Meyers, who had initiated the project, resigned from AAPAC in part due to frustration about the obstacles he encountered internal to the city in getting the project implemented.] She described the timeframe for creating a mural, which includes selecting possible sites and meeting with constituents in the neighborhood, she said. A letter of invitation has been sent out to mural artists and AAPAC will now select from a pool of artists.

Simbuerger allowed that the process could be improved structurally and there might be a point for some of the ordinance revisions the council was considering. But she encouraged the council to balance those changes with the needs of the program. She asked the council to increase city staff support for AAPAC and to empower the staff. It needs to be a staff-driven process, she said. Public art requires long-term commitment and persistence, so the focus should not just be on cutting the budget, but on making structural improvements to the process.

Connie Brown introduced herself as a long-time resident, business owner and AAPAC commissioner. She said she’s seen the positive role that public art can play in the community. She highlighted some of the things that AAPAC is doing. Currently, the commission is working on an interior piece for the lobby of the new municipal building. Proposals will be reviewed in December, she said. A statement of qualifications (SOQ) is ready for the Fuller Road Station project, but is not yet issued. When the University of Michigan and the city of Ann Arbor are ready to move ahead with that project, it will be sent out. Several projects are in the phase of task force work, she said – notably, public art for the bypass around Argo Dam and the East Stadium bridge reconstruction project.

Jan Barney Newman told the council she’d spoken to them once before when they were considering the ordinance. She’d addressed the council after she had been to Toledo to see an outdoor art exhibit – many people drove down from Ann Arbor just to see it. She noted that for the municipal center plaza, the city didn’t purchase “off the shelf” by buying an existing sculpture, but commissioned a thematically appropriate work. She drew a laugh from the audience as she struggled with the pronunciation of Dreiseitl, the name of the German artist who designed the fountain, rendering it as something that sounded frozen: drei-cicle.

Mark Tucker was dressed in a colorful outfit and said he was there to represent “art itself.” [Later in the meeting, Sabra Briere (Ward 1) led off the discussion by saying that the issue was not art itself, but rather the funding mechanism for public art.]

Margaret Parker and Mark Tucker before the Nov. 21 city council meeting started.

Tucker quoted the founder of the Heidelberg Project, Tyree Guyton, who responded when asked why he painted large polka dots on houses, “Why do you paint your house beige?” The conversation about public art always goes in the direction of cut, cut, cut, he said. Tucker does not think 1% for art is enough, and suggested the council think about 2%. He indicated that a “Miss 2%” would be appearing to show them what 2% for art looked like and asked that someone open the side door to the council chambers. When no one appeared, he said that he, for one, had wanted to see what 2% for art looked like.

Saying he was willing to demonstrate what 0.5% would look like, Tucker untied his necktie, indicating the demonstration would entail partially disrobing. He said it would be embarrassing for him and not pleasant for councilmembers. He asked councilmembers to consider what 0.25% or 0.125% would look like – saying that they all knew what zero percent looks like. He concluded that 1% percent is not too much to ask, to keep ourselves from being beige.

Elaine Sims, another AAPAC member, told the council she was glad didn’t have to follow anything that may have happened with Tucker’s demonstration. She said that in her day job, she also worked with art, as director of the University of Michigan Health System’s Gifts of Art program. She characterized the University of Michigan as a “small town” itself. She said she continuously gets calls from health care organizations across the country about the UM program.

Sims assured the council that the program did not happen overnight – it’s 25 years old. But it began as 3-year pilot program, she said. She gave the council some perspective on how long it takes to complete a commissioned piece of art, noting that she is a full-time staff member and that she has staff who report to her. Even with that level of staff support, she said, it takes a minimum of two years, more often than not three years from start to finish. She said that commissioners on AAPAC serve a staff function and that only recently has Aaron Seagraves been brought on board as public art administrator.

[At the city council's Nov. 14 working session, councilmembers heard a recommendation from public services area administrator Sue McCormick that would increase the value of the contract for the city’s public art administrator – by $35,000. The position is not held by a city employee. Currently that contract is with Aaron Seagraves, who took the job in May 2011. Previously, the part-time position had been vacant for almost a year, after Katherine Talcott, who was hired in early 2009, took the job of art project manager for the city. Seagraves currently has a one-year contract for 20 hours per week. At the Nov. 14 work session, McCormick characterized the proposed $35,000 increase to the contract as bringing it to essentially a full-time position.]

Art: Council Deliberations – Introduction

Sabra Briere (Ward 1) led off deliberations by noting that the council would see a different proposal from what they considered in September, but then postponed at the Sept. 19, 2011 meeting. Briere summarized the key features of the Nov. 21 proposal:

1. Routine repair of sidewalks would not be considered capital improvements, thus not trigger the requirement that 1% of those project budgets be set aside for public art.
2. The percentage required to be allocated to public art would be dropped from 1% to 0.5% for the next three years; after that time it would automatically revert to 1%.
3. After July 1, 2012, general fund money would no longer be eligible for inclusion in public art.
4. Funds that are pooled for public art would have three years to be allocated (not necessarily spent), otherwise that money would revert to the fund of origin.

By way of background, the key difference between the Nov. 21 proposal as compared to the Sept. 19 proposal was a political horse trade: a prohibition against using the street millage fund for public art was removed, in exchange for a reduction in the percentage from 1% to 0.5%.

Briere then implicitly refuted remarks made by Mark Tucker during public commentary, during which he stated that he was there to represent art itself. Briere said she wanted to make certain the council’s discussion separated out the funding issue from the love of art or public art. The discussion is about an effort to fund art, not public art itself, she said. She went on to say that public art is something many people embrace and endorse, but believe there are different ways to fund it. The city’s percent for art ordinance is a specific mechanism, she said.

Over the last four years, Briere said, enthusiasm for the program has lessened. A large number of capital improvement projects have been undertaken, she said, and people are a little surprised at the amount of dollars that has accumulated. Working with such large amounts is amazingly difficult for people to contemplate. AAPAC has had a difficult time getting organized, and has a lot on its plate, Briere said, and it took a long time for bylaws and policies and procedures to get developed.

Art: Council Deliberations – Lumm’s 0.25%

Jane Lumm (Ward 2) reiterated Briere’s point that the issue is not about public art. She took a different view of the trajectory of support for art in the community [from one of the public speakers]. She said she’d spent 10 years on the Ann Arbor Street Art Fair board and a number of years hanging out at the Ann Arbor Art Center. If it were not for community support, it would struggle. Alluding to Mark Tucker’s remarks during public commentary, Lumm said that an Ann Arbor art fair had actually brought some works from the Heidelberg Project works to Ann Arbor.

Lumm said it’s about the funding of art – private or public. She allowed that 1% doesn’t sound like a lot, but so far, over $2 million has been set aside for public art. Reducing the percentage from 1% to 0.25% would reduce the dollar amount per year set aside for art from around $450,000 to around $100,000. She said she still did not not agree with the idea of earmarking capital dollars for public art, but that $100,000 would be acceptable.

Tony Derezinski (Ward 2) responded to Lumm by saying: “You can’t have it both ways.” People say they want to have something but then don’t want to fund it, he said. He drew an analogy to the U.S. wars in Iraq or Vietnam. Derezinski noted that it’s the third time the council has wrestled with the issue. The community has been through some tough times, but “We’ve hung in there with 1%,” he said. He characterized the views that the council had heard as an “outpouring” of support for the public art program from the community. He said he could not go along with the idea of people saying they are for something but against funding it. Tough times, he said, bring out what the community is about. Ann Arbor is known for public art, he contended, so he was not in favor of decreasing the amount to 0.25% or to 0.5%.

Margie Teall (Ward 4) echoed Derezinski’s remarks, saying that it’s disingenuous to say you support something, but then not pay for it. If the council tempered its support, Teall said, it would send a message to private funders. She said she would not support a reduction to 0.25% or to 0.5%.

Stephen Kunselman (Ward 3) took on the rhetorical gambit of Derezinski and Teall criticizing those who say they support something but won’t pay for it, by asking: “How often have my colleagues said, ‘We support public safety!’ but yet we’ve cut it?” The remark elicited a few cheers from the audience. Kunselman pointed to the $2.2 million that’s been transfered to public art and noted that much of it is still sitting there. He noted the council has made changes in other programs and services.

Kunselman pointed out that even though there was support from the public commentary podium for the public art ordinance, four of those who spoke are AAPAC commissioners. So, taking Teall’s label of “disingenuous,” Kunselman said it’s disingenuous to call that an outpouring of community support, as Derezinski had. Kunselman said during tough economic times, there’s too much money spent on art. He also questioned the legality of taking millage money that hasn’t been sanctioned at the state level or by the courts. He noted the absence of a written opinion from the city attorney’s office on the legal basis of the city’s ordinance. So he said he’d support the amendment.

Mike Anglin (Ward 5) said he’d heard the concerns about the amount of money the ordinance was generating. He agreed with Kunselman’s position that the council needed a written legal opinion from the city attorney. He said he was eager for a written opinion and said that the council should take a vote on that very soon. [Kunselman has taken the position that it should be up to the supporters of the public art ordinance to bring forward a resolution to direct the city attorney to produce an opinion.]

Anglin spoke about the role of art in defining what Ann Arbor is, saying that Ann Arbor is a unique little town. He noted that the discussion had centered on the visual arts, not the performing arts. He ventured that public art funding could eventually be expanded to include performing arts. He said he wanted to keep the 1%. People had been “shaken” by the process for creating the Dreiseitl sculpture, Anglin said. He found the whole procedure “jarring” – apparently because of the selection of a German artist for the commission. He seemed to indicate that the selection of Michigan workers for fabrication who could do good “metal work” was not entirely satisfactory.

In her next speaking turn, Teall picked up on Anglin’s reference to metal work, in order to clarify that the Dreiseitl piece is not simply a metal sculpture, saying that Herbert Dreiseitl is a “water and sculpture engineer.” She described the fountain as part of the stormwater system of the building, and said that it was fabricated using Michigan workers. It was not totally farmed out, she said.

In support of his position, Derezinski followed up with a description of an editorial that had been published in the Detroit Free Press [The column mentioned by Derezinski was by Ron Dzwonkowski: "Forget Taxes and Regulations, Michigan Must Build It so They'll Come"] Derezinski noted that Dzwonkowski’s column highlighted a book, “The Economics of Place,” which was published by the Ann Arbor-based Michigan Municipal League. From the column:

The book lays out eight assets that are critical to quality of place today, some reflecting a generational shift away from suburban living – suburbs are today the fastest-aging segment of the American demographic – and others reflect the relentless advance of technology.

They are walkability, green initiatives, a healthy arts/culture scene, a climate for entrepreneurs, multiculturalism, constant connectivity, effective public transit and educational institutions that serve as community anchors.

So is it any wonder that Ann Arbor weathered the Great Recession better than the rest of Michigan? Doesn’t it make sense that Grand Rapids has embraced the annual ArtPrize competition? Isn’t there a lot of promise in Detroit’s burgeoning Midtown?

[In contrast to Ann Arbor's public art program, Grand Rapids' ArtPrize competition is funded through private support. It's now a 501(c)(3) not for profit organization. See Chronicle coverage of the first year of ArtPrize: "In Search of Ann Arbor Artists: A Sojourn"]

Briere sought to steer the conversation back to Lumm’s proposed amendment from 0.5% down to 0.25%. Briere said it’s hard to say how much is enough support for art. She noted that she didn’t vote for the original ordinance, because she wasn’t on the city council at the time. She would have voted for it, she said. She had voted to reduce the percentage when the council considered its budget this year. She’d also supported the reduction when Sandi Smith (Ward 1) had brought forward a proposal in 2009 to reduce the percentage. There’s clearly an interest among some councilmembers to reduce the percentage, Briere said.

Briere said when she looked at other communities to learn more about how public art was funded, she learned that other communities restrict how you spend it, and where it comes from. Aside from the percentage, Ann Arbor’s ordinance doesn’t provide guidance that is helpful, she said. She’d asked to receive AAPAC’s guidelines and bylaws, but still hasn’t seen them. It would be helpful to see that information before the second vote on the ordinance, she said.

Alluding to Lumm’s estimate of how much the 0.25% would generate a year, Briere said she didn’t think that $100,000 a year is enough to buy art. She didn’t think you can acquire qualified, healthy, significant art for that much, so she wouldn’t support a further reduction to 0.25%.

Jane Lumm (Ward 2) and Stephen Kunselman (Ward 3) found themselves voting together as a two-person block on more than one occasion at the Nov. 21 meeting.

Carsten Hohnke (Ward 5) began by noting sarcastically that he’d spent a lot of time reviewing all the 0.25% for art programs in the country – it didn’t take a lot of time because there weren’t that many. He said there’s a strong consensus for support for public art and some funding at some amount. In thinking about the appropriate amount that should be set aside for art, he cited a 1927 Department of the Post Office building in Washington D.C. for which 2% was set aside for art, and a National Archives building with a construction budget that allocated 4% for art. He continued by citing a federal general services administration policy in the 1950s of setting aside 1.5% for art, followed by city ordinances enacted in Philadelphia, then by the states of Hawaii and Washington in the early 1970s.

The 1% number offers a simple way to understand it, he said, that is sufficient to drive a large enough scale. He invited people to engage in a thought experiment. If your house burned down and the budget for rebuilding it is $100,000, the corresponding art budget of $250 (corresponding to Lumm’s 0.25%) doesn’t seem like a lot. Hohnke said that to him, 1% feels closer to the right amount, so he would not support a further reduction to 0.25%.

Sandi Smith (Ward 1) noted that she had twice before supported a reduction in funding. She said she thought it would be prudent to do that now – when things are financially tight. Using Hohnke’s analogy of a house, she said when she needed a new roof, she’s not looking to put a new carpet down too. She said that deciding the amount is a little premature, before deciding whether the program even continues. She said she would not support the reduction from 1% to 0.5%, because it’s muddying the waters.

Outcome on Lumm’s amendment: The council rejected the amendment to drop funding to 0.25%, on the proposal cutting public art funding from 1% to 0.5% – only Lumm and Kunselman supported the amendment.

Art: Council Deliberations – Lumm’s Conscious Restoration

A second amendment to the proposal the council was considering also came from Jane Lumm (Ward 2). As proposed by Sabra Briere (Ward 1), the ordinance revision would automatically revert the percentage to 1% after three years. Lumm wanted to tweak that so that a conscious action of the council would be required in order to bring the percentage back up to 1%.

Mayor John Hieftje said he had been reassured by the provision of an automatic return to 1%. He was willing to advance the proposal to a second reading if the 1% were restored after three years. Tony Derezinski (Ward 2) called the automatic restoration of the 1% level a useful tool for legislation like this.

Briere said that in her mind, the restoration of the funding level to 1% after three years went hand-in-hand with the other provision that would revert money to its fund of origin if it was not spent after three years. It’s easy to forget that something is going to happen. If in three years, funds have to be reverted to their funds of origin, she said, the council would hear from AAPAC about it. “That’s our trigger,” she said. Restoring the funding automatically after three years, Briere said, made sense to her.

Margie Teall (Ward 4) expressed agreement with Briere, adding that one reason it’s hard to keep track of things regarding the public art program is that there is not a full-time city staff member to keep track of it.

Carsten Hohnke (Ward 5) said he was looking forward to the discussion about what level of funding is appropriate. He said he would feel more comfortable with the reduction to 0.5% if there were the “backstop” of automatic restoration – although he was clear that he felt 1% is the right amount of funding for public art.

Outcome on Lumm’s proposed elimination of automatic restoration after three years: The council rejected the amendment on the proposal that made any restoration of funding from 0.5% back to 1% contingent on city council action. Only Lumm and Kunselman supported it.

Art: Council Deliberations – General Fund

Christoper Taylor (Ward 3) contrasted the fact of the deep importance of art to the community and the fact that money is tight. AAPAC has done yeoman’s work with insufficient resources, he said. But he pointed to the art fund as “flush” – there’s more money in it than AAPAC can process, given their resources, he said.

Taylor felt the situation calls for a practical, not a pure solution. There’s more money than we know what to do with – so the practical solution is to be in favor of the reduction to 0.5%, he said. This would reduce the pipeline, but also increase the outflow, and he anticipated the time at which the “pig in the python” comes through. Taylor allowed that he was borrowing a metaphor from another debate. [The allusion was to the Ann Arbor Downtown Development Authority's expected bond payments on the underground parking garage.] Taylor said he would support the proposed temporary reduction on its first reading, stressing it’s particularly important that the council address the issue in measured fashion.

In his remarks, Taylor alluded to the position that some councilmembers have taken on the possible connection between public art and public safety, which essentially is this: The absence of the general fund in any of the city’s accounting for public art translates to a factual matter that the city’s public safety services, paid for from the general fund, are not impacted by the public art ordinance.

Mayor John Hieftje picked up on Taylor’s remarks about the general fund, saying that none of the data presented to the council had ever shown general fund money spent on public art.

Later during deliberations, Margie Teall (Ward 4) asked public services area administrator Sue McCormick to approach the podium to lay out in more detail what the connection of the general fund money is, as well as other funds, to public art. Teall was prompted to ask McCormick to the podium, when Jane Lumm (Ward 2) reiterated the piece of her successful election campaign that asserted a specific connection between the general fund and the funding of a particular art project – the interior pieces that are being commissioned for the new municipal center.

Lumm said noted that there’s a $250,000 contribution from the municipal building fund, which itself was created out of general fund dollars. Based on that, she said, “I see general fund dollars in this.”

Hieftje responded to Lumm by saying that he’d asked CFO Tom Crawford to look at the situation.

It was at that point that Teall asked McCormick to give some clarity to the general fund issue, and also asked her to explain why spending public art money is tied to its fund of origin. McCormick took the second part of Teall’s question first. She explained that it’s because there’s a restriction on uses of those funds – they have to be used for the benefit of the fund’s purpose, or serve the purpose of the fund. Included in the qualifying uses, said McCormick, are those that serve the educational purpose of the fund. It has to be a capital project, she said, with an expected lifetime of at least a year, and must cost at least $5,000.

As for the general fund, said McCormick, on its face, no general fund dollars are used for public art. But she said Crawford had been asked how the municipal building fund was set up. Before continuing, she clarified that once the money goes into a fund like that, there’s not continued monitoring of the relationship between the dollars as they’re spent and where they came from. The municipal building fund had hit the $250,000 public art ordinance cap, so in order to connect that $250,000 to some fund of origin, it would need to be apportioned out – which is not an analysis the city would ordinarily do, she said.

But McCormick concluded by saying that $50,000 out of the $250,000 could be associated with the general fund. She concluded that it was possible to construe that relationship to the general fund. Currently, she said, $40,000 out of the $250,000 has been spent, and the project for the lobby is expected to cost $160,000, for a total of $200,000.

Hieftje called McCormick’s description “reasonable.”

Art: Council Deliberations – Teall’s Shortened Time Period

Margie Teall (Ward 4) offered an amendment to the proposal before the council. Teall’s amendment would shorten the period of the temporary reduction (from 1% to 0.5%) to just two years. After two years, it could be reviewed to see where the need is, she said. She rejected the phrasing of Christopher Taylor (Ward 3) earlier in the deliberations to the effect that AAPAC has more money than it knows what to do with – she said she thinks the public art commission knows what to do with it. Commissioners’ challenge is to go through all the steps without administrative support. A reduction of two years is “fairer,” she said.

Tony Derezinski (Ward 2) described Teall’s amendment as making something that is bad less bad. This kind of reduction sends a signal about the stability of the funding. He agreed with returning the funding amount in a quicker time.

Sandi Smith (Ward 1) reiterated the same objection she’d made to an earlier amendment, saying that to her, the amendment muddies the waters. She said that before the second reading of the ordinance, she wanted to see the city’s capital improvement plan (CIP) for two years and three years, and at different percentages. Then it would be possible to know what real dollars they’re talking about, she said. Right now, Smith added, “We’re shooting in the dark.”

Jane Lumm (Ward 2) agreed with Smith’s suggestion to get additional information, but noted that currently the ordinance is yielding $450,000 a year, and to date only around $860,000 has been spent. There’s quite a bit of capital sitting there, she said. A reduction for three years is not unreasonable, she said.

Outcome on Teall’s amendment shortening the period of reduced funding: The council rejected the amendment, which would have shortened the period of reduced funding from three years to two years. Voting for it were Derezinski, Teall and Hohnke.

Art: Council Deliberations – Council Extension of Deadline

Tony Derezinski (Ward 2) proposed an amendment that dealt with the proposal to require that unallocated money set aside for public art be returned to its fund of origin, if not assigned to some specific art project after three years. Derezinski wanted to allow for the city council to extend past the three-year deadline for up to two years on a case-by-case basis.

Marcia Higgins (Ward 4) said she was not in favor of Derezinski’s proposed amendment. Some back-and-forth unfolded between Higgins and Sabra Briere (Ward 1) about the status of funds that have already accumulated in the public art fund. Briere said that her proposal had been “clumsily drafted,” and was intended to be forward-looking not backward. That is to say, the three-year sunset would not apply to existing funds that had already accumulated.

After a recess of the council meeting, Briere came back with revised language to make the timing clear, as well as the status of the funds – they didn’t need to be spent, just “encumbered.”

Jane Lumm (Ward 2) questioned the intent of the language. Briere told her the idea was to look forward, not back.

Sandi Smith (Ward 1) questioned the need for language giving the council the authority to extend the timeframe by two years. Can’t the council simply grant the extension, if that’s its desire? Assistant city attorney Abigail Elias clarified that the council can’t change an ordinance by resolution. So the ordinance language itself provides the option for the council to extend the deadline by passing a resolution.

Mayor John Hieftje indicated a preference for a series of 6-12 month extensions instead of two years. Councilmembers seemed concerned about dealing with a situation where a project was in the works, but delayed, so that the public art money would not be spent within three years, as required under the proposal. Margie Teall (Ward 4) said she would support Derezinski’s amendment if it were restricted to up to two years. Derezinski indicated this was, in fact, his intent. Hieftje chimed in that his own method wouldn’t have put a maximum timeframe.

Higgins drew an analogy to the purchase option agreement made with Village Green for the First and Washington parcel – the purchase option was extended by the council several times. She said she was in favor of allowing up to two years, then at the two-year mark, an extension should be considered in six-month increments.

Briere declared that she was confused: If a public art project were proposed and in the works, that would encumber the money. And the sunset clause makes explicit reference to that. If a project is ongoing but delayed, it doesn’t need to come back to the council, because the project is ongoing and has encumbered the funds, she said.

Higgins wanted to know what would happen if funds were encumbered for three years, but then the project fell through. Elias characterized it more as a finance issue. She ventured that she could take a look at the accounting.

Carsten Hohnke (Ward 5) wanted some clarity on how funds might come to be encumbered – is that a legal or a financial question? He suggested that the encumbrance comes close to the end when contractors come into the picture and exact costs are calculated.

After some back and forth, councilmembers then settled on a series of six-month extensions that the council would be able to grant. In relevant part, the revised ordinance as eventually given initial approval by the council read:

(4) Funds for public art that are placed in a pooled public art fund after July 1, 2012 that have not been disbursed or encumbered for an art project for three (3) full fiscal years shall be returned to the fund of origination, provided that Council may extend the foregoing period by resolution for successive periods, each not to exceed six (6) months.

Outcome on Derezinski’s amendment to allow city council extension of the time period by which funds must be encumbered: The council approved the amendment, with dissent from Lumm and Kunselman.

Art: Council Deliberations – Eliminate Reduction

Carsten Hohnke (Ward 5) allowed that many of the changes in the proposal to amend the percent for art ordinance were helpful. He wanted, however, to have a discussion on the percent. He proposed an amendment to the proposal that would eliminate the reduction from 1% to 0.5%.

Carsten Hohnke (Ward 5) and Jane Lumm (Ward 2) before the Nov. 21 council meeting started.

Stephen Kunselman (Ward 3) said he wouldn’t support that. He acknowledged that there was some desire to support art, but noted that it’s not the “one percent for art fund,” but rather it’s the “percent for art fund.”

Spending the funds will be hard, Kunselman said, because there’s no guidance. You have to go back to the city attorney’s office to find out if a specific project can be funded – he noted he’d brought this issue up many times. The city can’t have a program run on verbal assertions, he said. He wondered what the public art fund could be used for: Performance art? Pavement decorations? Manhole covers? He’d like to see decorative art light fixtures installed up in the Oxford neighborhood, where students have expressed concerns about safety.

Tony Derezinski (Ward 2) stated that he assumed Ann Arbor wants to be an art center for the state of Michigan. So it’s important to keep the public art program healthy. There’s a lot of subjectivity in art, but AAPAC has some very devoted people. He said he’d attended three meetings since being appointed to the commission. The commission has come up with good recommendations for improving their own procedures, he said. The program is just about to flower, he added, so the council shouldn’t nip it in the bud.

Margie Teall (Ward 4) said she agreed with Hohnke and Derezinski. She described the percent for art program as just getting off the ground, and to reduce its funding would mean cutting it off at its knees. Responding to Kunselman’s call for decorative street lights, she said nothing prevents the city from using public art funds in that way. What’s holding the commission back is a lack of administrative staff support. She noted that the commission is a volunteer organization. The way to make public art happen is to support it with one percent, she said.

Christopher Taylor (Ward 3) said he believes that AAPAC was given an unfair and unachievable task – commissioners have done important and valuable work. In the future, that work should be given more staff support. But the fund is currently flush, he noted, and they’ll be able to use the already aggregated money and use the additional 0.5% allocation. He said you prune a lilac bush to prevent it from getting too leggy. The temporary reduction would allow the public art program to be a fuller, more efficient program.

Sabra Briere (Ward 1) said she liked Taylor’s metaphor, adding her own version: You prune a bush to make it bloom better.

Mayor John Hieftje said a lot of people talk about the tradition of art, and contended that when you read about the history of public art, it’s about economic development. Ann Arbor lives on the fact that it has a high quality of life, he said. He talked about the speech he gave at the dedication ceremony of the Dreiseitl sculpture, in which he’d quoted from an article in Forbes magazine that called public art economically viable.

Jane Lumm (Ward 2) thanked Briere for bringing the proposal forward. She said she would support the 0.5%, not Hohnke’s attempt to eliminate the temporary reduction. On the whole question of earmarking capital dollars for art, she said she would feel differently if it had been put to a vote of the residents.

Sandi Smith (Ward 1) observed that the existence of the program enjoyed overwhelming support at the podium and in emails she received. And she noted that the proposed revision would preserve the program.

Hohnke concluded that the council’s discussion had been really useful. He said the proposal included a lot of improvements, excepting the reduction from 1% to 0.5%. He saw a lot of signposts that point towards 1% as the right amount.

Outcome on the elimination of the reduction to 0.5%: The amendment that would have eliminated the reduction from 1% to 0.5% failed, with support only from Derezinski, Teall, Hohnke and Anglin.

Art: Council Deliberations – Finale

Mayor John Hieftje said he would support the measure for its initial vote and looked forward to its second reading before the council.

By way of background, councilmembers are not required to vote the same way on issues at their first and second readings. During deliberations on Nov. 21, Carsten Hohnke (Ward 5) voted for the ordinance revision on first reading, even though he argued against its main feature and attempted to amend it out – the temporary reduction from 1% to 0.5%. In the past, Hohnke, as well as other councilmembers, have made it clear that their votes for a measure on first reading are in the spirit of moving the proposal along to a second reading, when a public hearing is also held.

At the council’s Dec. 21, 2009 meeting, enough councilmembers flipped their votes between the first and second reading that a proposed reduction to the percentage public art allocation ultimately failed, after having won initial approval.

Outcome: The council voted to give initial approval to the temporary reduction (for three years) of the percentage specified in the public art ordinance – from 1% to 0.5%, with an automatic reversion to the 1% level after three years, as well as other changes to the ordinance. The changes would not take effect until after a public hearing and a successful second vote by the council. Dissenting were Derezinski, Teall and Anglin.

Greenbelt Boundary Expansion

On the agenda for consideration was a resolution to change the boundaries for the city’s greenbelt program – an open space preservation effort funded by a 30-year, 0.5 mill tax approved by voters in 2003.

Greenbelt Boundary: Background

During a presentation to the city council at the start of the meeting, Dan Ezekiel, chair of the greenbelt advisory council, gave the council an overview of the program and the proposal they would be considering later in their meeting.

The area in and around Ann Arbor that’s eligible for land preservation under the greenbelt program is defined in Chapter 42 of the Ann Arbor city code. The council has expanded the boundaries once before, in 2007. The current proposal is essentially to square-off the area by adding a mile to the southwest in Lodi Township, and one mile to the northeast in Salem Township. [.jpg of map by The Chronicle showing original boundaries, the 2007 expansion and the currently proposed expansion]

The brightest green region of the map is the original 2003 boundary area for properties eligible for protection using greenbelt millage funds. Next brightest is the area added in 2007. The dimmest green (in the southwest and northeast part of the map) is the area now proposed to be added. (Image links to higher resolution .jpg)

Also before the council as part of the amendment to Chapter 42, the council was asked to give initial approval to a change that allows a parcel of land adjacent to the greenbelt boundary to be eligible for protection, if it is also adjacent to a parcel under the same ownership within the greenbelt boundary. The greenbelt advisory commission had voted to recommend the ordinance changes at its Sept. 14, 2011 meeting.

Since the start of the greenbelt program, roughly $18 million has been invested by the city of Ann Arbor in protecting open space. That has been matched by roughly $19 million from other sources, including the federal Farm and Ranch Land Protection Program, surrounding townships, Washtenaw County and landowner donations. That funding has protected roughly 3,200 acres in 27 separate transactions.

Also before the council for its approval at the Nov. 21 meeting was the appointment of Shannon Brines to the greenbelt advisory commission. The current commission had recommended his appointment at its Oct. 12, 2011 meeting.

Greenbelt Boundary: Public Comment

Keri Hardy introduced herself as the manager of Cherry Republic’s Ann Arbor store on Main Street, and said she was there on behalf of the owner. Cherry Republic exclusively sells cherries and has chosen to have a store in Ann Arbor, because Ann Arbor matches Cherry Republic’s commitment to supporting Michigan and Michigan farming, she said. She presented a $2,500 donation from Cherry Republic to the Ann Arbor greenbelt program.

Greenbelt Boundary: Council Deliberations

Carsten Hohnke (Ward 5), who serves as the city council appointee on the greenbelt advisory commission, put forward the boundary expansion resolution. He described the proposed changes as smoothing out the boundaries that had been enacted as part of the 2007 change. The boundary changes are proposed to take advantage of opportunities for land protection in the expanded area.

Jane Lumm (Ward 2) led off debate by making a motion to divide the question, noting that there were two items incorporated in the proposal before the council – one was an expansion of the boundaries, and the other involved allowing properties adjacent to the boundary to be eligible under certain conditions. She said she supported the adjacency condition, but did not support expanding the boundary.

Christopher Taylor (Ward 3) stated that “dividing the question” was a procedure with which he was not familiar.

By way of background, dividing the question is a standard parliamentary procedure that allows for separate votes to be taken on parts of a proposal. In response to a motion like Lumm’s to divide the question, the presiding officer at the meeting is supposed to ask for a seconding motion, and if there is one, to call for a vote, without debate on dividing the question. Once approved by a majority vote, the question is treated part-by-part as two separate questions before the council.

That’s not what happened in response to Lumm’s motion. Besides Taylor’s interjection about his lack of familiarity with dividing the question, Marcia Higgins (Ward 4) complained that the text of the original ordinance was not included in the council’s meeting information packet, and that led to additional uncertainty.

Higgins wondered if a postponement might be in order.

Marcia Higgins (Ward 4) expressed concern about the possible continued expansion of the greenbelt boundaries. Carsten Hohnke (Ward 5) is seated to her left.

Ginny Trocchio – a staff member of the Conservation Fund, which is the consultant the city uses to help manage the millage proceeds – was called to the podium to comment on any negative impact that might arise from a postponement.

Trocchio and Dan Ezekiel indicated to the council that with the uncertainty in the federal budget, the next round of funding – in February 2012 – might be the last one for the federal Farm and Ranch Land Protection Program. For properties that would be eligible for FRPP grants only as a result of the ordinance change, it would leave a short timeline to apply.

Mayor John Hieftje expressed some apparent confusion, wondering what Lumm wanted to amend. She explained that she just meant to be dividing the question. Hieftje indicated he wanted Lumm to take the approach of offering an amendment instead, saying that it was “neater” to do it that way. Lumm complied by amending the proposal to strike the boundary expansion.

Stephen Kunselman (Ward 3) said he was initially opposed to expanding the boundaries, but after talking to Ezekiel, he felt it boiled down to the intent of the voters, which he felt was generally to create a greenbelt around the city.

Sandi Smith (Ward 1) got clarification that Ann Arbor might get greater cooperation from Salem and Lodi townships as a result of the boundary change. Hohnke described how the boundary change in 2007 did not include Salem and Lodi townships because up to that point there had been little collaboration offered by those townships – but that has changed, he said.

Sabra Briere (Ward 1) called the greenbelt a successful program and said the proposed expansion is a mark of that. Adding 10 square miles is an open door to more opportunities. Hohnke noted that the expanded area would make up about 6% of the total greenbelt area. Since 2003, he said, the cost per acre of protecting land has come down by half.

Higgins said she struggled with the expansion. One of the things presented to voters in 2003 was a map, she said. When voters saw that, they didn’t necessarily think the area would continue to expand. Back in 2003, she said, Ann Arbor was ahead of the curve. But now other organizations have come forward, and Ann Arbor is not the only player in the game. So she said she had some issues expanding again.

Higgins noted that Lodi Township was very excited about the prospect of the boundary expansion – but she attributed that excitement to the fact that Lodi makes only a token contribution. Ann Arbor will be the bigger contributor, she said.

Lumm said that at the time of the millage vote, a robust discussion had established the boundaries, and the community had talked about how the millage proceeds would be spent. She noted that the proposal now is the second expansion – she realized it was not a huge expansion, and thanked Hohnke for coming forward with a smaller expansion than others might have wanted. She questioned, though, whether the city is being driven by the desire to spend all the money in the program or to spend it wisely.

She characterized the money spent to date as having been spent wisely. But she noted the current fund balance is around $10 million – it’s hard not to say it’s flush with cash. It made her wonder if the city is spending it because it’s there. She stated she would not support the expansion at the first reading.

Higgins asked Ezekiel to the podium again and asked if it was possible to “lock in” the boundaries so that they would remain in place for some number of years. Ezekiel told her that the city council can choose to lock in whatever they choose – GAC is an advisory commission. He clarified for Higgins – who had complained that perhaps townships had not contributed much to some of the deals – that it has never been the case that the city is the only contributor. It’s required, he said, to have at least 20% from other sources. Higgins countered that the 20% isn’t necessarily from other local entities, which Ezekiel confirmed. He confirmed for Higgins that the city has done deals where the city of Ann Arbor has been the only local participant. Overall, however, Ezekiel said the city does better than a dollar-for-dollar match.

Higgins concluded by saying that if it were possible to say that the city would stick to these boundaries (as expanded), that would make her more comfortable in supporting the expansion.

Taylor mentioned that while the city has challenges in its parks system, the greenbelt millage can’t be used for maintenance of city facilities. Greenbelt millage money is just for land and the purchase of development rights. He said he would support the expansion of the boundaries.

Hieftje said he didn’t think there was ever a strict boundary presented to voters – it was always to be decided by the city council through an ordinance.

Outcome on the elimination of the boundary expansion from the proposal: The council rejected Lumm’s amendment. It had support only from Lumm and Higgins.

Higgins indicated she would like to think about stipulating a 5-year time period during which the boundaries could not expand again. Taylor made a side comment that the current council can’t tell future councils what they can do. Briere observed that since passage of the millage in 2003, it’s turned out to be 4-year increments for review. Hohnke characterized the 2007 change as an expansion with a couple of corners left out – it’s one expansion over the course of eight years, he said.

Outcome: Over a lone dissent from Lumm, the council gave initial approval to the boundary expansion and the provision for including certain properties adjacent to the boundary as eligible. Later in the meeting, the council also gave final approval to the appointment of Shannon Brines to the greenbelt advisory commission.

Hoover Mansion (University Bank) Rezoning

The council was asked to consider initial approval for altering the University Bank site plan for its property at 2015 Washtenaw Ave., known as the Hoover Mansion.

Stephen Ranzini, president of University Bank, checks his tablet during the city council's Nov. 21 meeting. Seated in a row behind Ranzini is Stuart Berry, who this year was an unsuccessful candidate for city council, running as a Republican in Ward 5.

The bank asked to revise the existing planned unit development (PUD) for the site (originally approved in 1978), allowing an increase in the total number of employees and parking spaces permitted on the parcel. The site serves as the bank’s headquarters.

The proposal includes a request to build 14 new parking spaces on the east side – behind the main building – for a total of 53 spaces on the site. The city planning commission unanimously recommended approval of the change at its Oct. 4, 2011 meeting, after the proposal had been initially submitted to the city about a year earlier.

Because the proposal is a change to the city’s zoning, it’s a change to the city’s ordinances – a process that requires a second approval by the council at a separate meeting, preceded by a public hearing.

Outcome: After brief comment from Tony Derezinski (Ward 2), the council’s representative to the city planning commission, the council voted unanimously to give the PUD revision initial approval.

Arbor Hills Crossing Site Plan, Brownfield

On the agenda was a resolution for approval of the site plan for Arbor Hills Crossing, a proposed retail and office complex at Platt and Washtenaw.

The project involves tearing down three vacant commercial structures and putting up four one- and two-story buildings throughout the 7.45-acre site – a total of 90,700-square-feet of space for retail stores and offices. Three of the buildings would face Washtenaw Avenue, across the street from the retail complex where Whole Foods grocery is located. The site would include 310 parking spaces.

Also before the council was the brownfield plan for the project, which includes $6.7 million in tax increment financing to be paid back over a 19-year period. The Washtenaw County board of commissioners will still need to sign off on the brownfield plan. County commissioners scheduled a public hearing on the brownfield plan to be held at their meeting on Jan. 18, 2012.

The city’s planning commission unanimously recommended approval of the site plan at its Oct. 18, 2011 meeting. Action had been postponed at the commission’s June 7, 2011 meeting so that the developer – Campus Realty – could address some outstanding issues with the plan.

Marcia Higgins (Ward 4) indicated that the brownfield committee had met and agreed the plan is appropriate. It was thoroughly vetted, she said, and would next be reviewed by the Washtenaw County board of commissioners.

Tony Derezinski (Ward 2), the council’s representative to the city planning commission, said the proposal had been reviewed by the planning commission in some detail. The developer and the attorney for the project were present at the meeting in case there are any questions, he said. The plan takes a piece of land across from Whole Foods and makes it attractive for the area, he said. It comports with the themes of the Reimagining Washtenaw Avenue initiative. He noted that the developer had to locate the bus stop on the other side of the street so that patrons of the county recreation facility could take advantage of it.

Christopher Taylor (Ward 3) echoed his enthusiasm for the project, saying that the area had long been underutilized. It would be a great benefit for the neighborhood and he looked forward to its arrival, he said.

Stephen Kunselman (Ward 3) reported that he’d attended the citizens participation meeting on the project and described it as very welcoming, appropriate and useful. He noted that the site had a previous plan that didn’t go anywhere – he hoped this one receives ample financing.

Outcome: On separate votes, the council unanimously approved the Arbor Hills Crossing site plan and brownfield plan.

Handbills, Newspapers

The council was asked to consider a revision to its ordinance on the distribution of handbills and newspapers that, among other things, would give residents the ability to prevent delivery of any undesired newspaper onto their porches by posting a notice expressly forbidding the delivery of a specific paper.

The ordinance revision reads, in part:

No corporation, limited liability company, or partnership and no corporate officer or director, managing member, partner, or other person shall cause to be placed any newspaper upon private property where there is a notice posted on the front door of the structure on the property that the occupant forbids the delivery of that specific newspaper. [.pdf of marked up version of ordinance]

Handbills, Newspapers: Council Postponement

Christopher Taylor (Ward 3) introduced the proposed ordinance, saying that its quality of life is one of Ann Arbor’s charms. Currently, he said, it’s not permitted for a person to deposit handbills in various public places. The ordinance revision clearly extends the prohibition to the advertisers who cause the handbills to be created. Taylor went on to say that there are a good number of newspapers and newspaper-like publications that show up sometimes in people’s driveways. The ordinance revision, he said, gives residents tools to deal with that.

Noting that the text of the ordinance revision had not been available to the public in a timely way before the council’s meeting, Taylor asked his colleagues to postpone the vote.

Outcome: The council voted unanimously to postpone its initial vote on the littering and handbill ordinance revision.

Handbills, Newspapers: First Amendment Issues

Though not discussed by the council, the attempt to curb delivery of unwanted newspapers poses some interesting First Amendment issues. From the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

According to David Hudson, adjunct faculty with Vanderbilt Law School and a scholar at the First Amendment Center, it’s conceivable to craft an ordinance preventing delivery of unwanted newspapers that doesn’t violate the First Amendment. Reached by phone, Hudson told The Chronicle that the lower courts have not necessarily been uniform in their rulings and many of the cases on such ordinances have been settled not based on the larger First Amendment issues. Hudson didn’t comment on Ann Arbor’s proposed ordinance, not having seen it.

One of the pitfalls of any such ordinance, Hudson cautioned, is the creation of content-based exclusions. Hudson explained that in First Amendment law, content-based laws are subject to strict scrutiny, which is the highest level of judicial review. And Hudson said he teaches his students the concept in part with a quote from Justice David Souter: “Strict scrutiny leaves few survivors.”

One example of a case in which a court found a law similar (but not identical) to Ann Arbor’s to be content-based, and therefore unconstitutional, came before a California court of appeals. From the opinion, which includes a description of the ordinances:

In this appeal we are asked to decide whether the City of Fresno’s municipal ordinance which restricts the door-to-door distribution of certain categories of written materials is constitutional. We are concerned with two parts of the ordinance. First, the ordinance prohibits-door-to-door distribution of advertisements and unauthorized newspapers when the owner or occupant of a residence or business has posted a sign prohibiting such distribution. Second, the ordinance prohibits door-to-door distribution of campaign materials, advertisements and unauthorized newspapers when it is reasonably apparent the previous day’s distribution has not been removed or the property is vacant. We hold both [31 Cal.App.4th 37] parts of the ordinance restrict the distribution of certain categories of protected speech and the press to the exclusion of other categories, and the City of Fresno failed to carry its burden of demonstrating a content-neutral justification for the disparate treatment. [.pdf of City of Fresno v. Press Communications, Inc. (1994)]

However, Hudson told The Chronicle that the U.S. Supreme Court has upheld the basic notion that residents have the right to control, at least to some degree, the extent to which they must contend with printed matter delivered to their homes. In a 1970 case, the court ruled that citizens have the right to stop delivery via the U.S. Postal Service of material from specific senders:

But the right of every person ‘to be let alone’ must be placed in the scales with the right of others to communicate. In today’s complex society we are inescapably captive audiences for many purposes, but a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail.
…
To hold less would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home. Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit; we see no basis for according the printed word or pictures a different or more preferred status because they are sent by mail. The ancient concept that ‘a man’s home is his castle’ into which ‘not even the king may enter’ has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another. [.pdf of Rowan v. U.S. Post Office Dept. (1970)]

And in a New York State Supreme Court decision, the court held that “neither a publisher nor a distributor has any constitutional right to continue to throw a newspaper onto the property of an unwilling recipient after having been notified not to do so.” [.pdf of Kenneth Tillman v. Distribution Systems of America]

House Bill on Discrimination

On the agenda was a resolution expressing the council’s opposition to a proposed Michigan state house bill from Tom McMillin, a Republican representing District 45, which includes Rochester. McMillin’s bill would amend Michigan’s Elliot-Larsen Civil Rights Act by declaring null and void legislation enacted by local units that expands the set of protected classes in the Civil Rights Act. [.pdf of Michigan's Elliot-Larsen Civil Rights Act] [.pdf of McMillin's proposed bill (HB 5039)]

The protected classes enumerated in the Elliot-Larsen Civil Rights Act include categories based on religion, race, color, national origin, age, sex, height, weight, or marital status. The city of Ann Arbor’s non-discrimination ordinance adds sexual orientation, gender identity, or student status as classes of people against whom discrimination is prohibited. [.pdf of Ann Arbor's Chapter 112 non-discrimination ordinance]

So McMillin’s bill, if eventually signed into law, would nullify Ann Arbor’s Chapter 112 of the city code. The Ann Arbor city council’s resolution cites Michigan’s Constitution, which provides that ”Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law.” [.pdf of Section 22 of Michigan Constitution]

The bill has been referred to the state House judiciary committee. The 17-member judiciary committee for the state House includes 10 Republicans and seven Democrats, one of whom is Jeff Irwin (D-53), who represents a district that includes most of Ann Arbor.

Sandi Smith (Ward 1) introduced the resolution, saying that she generally liked to present items that are positive. But sadly, she said, the resolution she was bringing was necessary to give a message to Lansing. She said that some in the state legislature treated the Michigan State Constitution as if it’s something they can bend at their will. Specifically, she said, the McMillin bill challenged the right of a city to establish laws of its own. It would roll back protections to groups prescribed in the Elliot-Larsen Civil Rights Act. She added a clause at the council table that sent a copy of the resolution to Gov. Rick Snyder.

Sabra Briere (Ward 1) indicated her understanding that the issue dealt with who could receive financial benefits. Smith clarified that this resolution was different from the resolution the council had approved on Sept. 19, 2011 expressing its opposition to House Bill 4770, which would limit benefits to same-sex partners. With that clarification, Briere said the resolution had her complete support.

Mayor John Hieftje contended that in fact there is a financial aspect to McMillin’s proposed legislation – it would take further steps to drive certain people away from the state, he said, who could otherwise contribute to Michigan’s economic recovery. Jane Lumm (Ward 2) thanked for Smith and Briere for bringing the resolution forward.

Outcome: The council unanimously approved the resolution opposing House Bill 5039.

Organization of New Council

According to the city charter, the city council must elect from its members a mayor pro tem “at its first meeting after the newly elected members have taken office following each regular city election …” That meeting was Nov. 21, which was the first meeting after Nov. 14, when councilmembers who won their elections on Nov. 8 took office.

Councilmembers were given a ceremonial swearing-in at the start of the Nov. 21 meeting by city clerk Jackie Beaudry (back to camera). From left to right: Mike Anglin (Ward 5), Marcia Higgins (Ward 4), Sabra Briere (Ward 1), Jane Lumm (Ward 2) and Stephen Kunselman (Ward 3).

So at the start of the meeting, Sabra Briere (Ward 1), Jane Lumm (Ward 2), Stephen Kunselman (Ward 3), Marcia Higgins (Ward 4) and Mike Anglin (Ward 5) were given a ceremonial swearing-in by the city clerk, Jackie Beaudry.

Christopher Taylor (Ward 3) moved the resolution nominating Higgins as mayor pro tem, along with the order of succession to the mayor.

Chris Easthope finished his service on the Ann Arbor city council as mayor pro tem. After Easthope left the council in 2008, going on to serve as judge on the 15th District Court, Higgins has been elected mayor pro tem each year.

The mayor pro tem acts as mayor when the elected mayor is unable to do so. When acting as the mayor, the mayor pro tem enjoys all duties and responsibilities of mayor, except that of the power of veto. With respect to other duties and responsibilities of the mayor as compared with other councilmembers, they consist largely of serving as emergency manager, making nominations to boards and commissions, presiding over meetings, and fulfilling a ceremonial function.

The mayor pro tem’s annual salary is the same as other councilmembers: $15,913. [The mayor earns more: $42,436.] Although the local officers compensation commission recommended in 2007 that the mayor pro tem be given additional compensation, the city council that year rejected that part of the commission’s recommendation.

Other than Taylor’s remark that the order of succession was seniority-based, but within that sorting “regrettably alphabetical,” the council did not engage in deliberations on the vote. Taylor’s comment likely related to the fact that he is alphabetically last among the four councilmembers who were elected for the first time in 2008 – Derezinski, Hohnke, Smith and Taylor.

The complete order of succession after Higgins is: Margie Teall (Ward 4), Mike Anglin (Ward 5), Sabra Briere (Ward 1), Tony Derezinski (Ward 2), Carsten Hohnke (Ward 5), Sandi Smith (Ward 1), Christopher Taylor (Ward 3), Stephen Kunselman (Ward 3) and Jane Lumm (Ward 2).

Outcome: The council unanimously approved the resolution electing Marcia Higgins as mayor pro tem and approving the order of succession to the mayor.

Also on the agenda were council committee appointments for the coming year and ratification of the council rules. The committee appointments were not prepared in time for the meeting and an amendment to the rules discussed by the council rules committee just before the council meeting was not added to the agenda until just before the council meeting.

That amendment relates to the rule requiring that emails received by councilmembers on government email accounts during council meetings be produced by the city, subject to redaction under provisions of the Michigan Freedom of Information Act, and attached to the meeting minutes.

The proposed amended version of the rule would read:

Electronic communication sent and received by a member during a Council meeting shall be included in the minutes of such meeting, provided that the minutes shall not include electronic communication received by a member that clearly does not relate to the subject matter of the meeting.

During the rules committee meeting that preceded the council’s Nov. 21 meeting, Christopher Taylor (Ward 3) told other committee members that he was proposing the rule because the existing rule had resulted in the inclusion in the meeting minutes of one neighbor’s nasty comments about another neighbor, which did not serve the purpose of the rule.

That purpose, said Taylor, was to provide a complete record of the kind of input the council was receiving during its council meetings. [The rule was enacted in September 2009, after requests made under the Freedom of Information Act showed that councilmembers were using their email accounts to communicate with each other – on topics that ranged from juvenile horseplay to the subject matter of the meeting, to their political campaigns. For more background, see The Chronicle column: "When's an Open Meeting Open?"]

Marcia Higgins (Ward 4), chair of the rules committee, reported at the committee’s meeting that she’d received a suggestion from Jane Lumm (Ward 2) to amend the rule on agenda setting:

Council members may add items to the agenda at any time, but will use best efforts to do so prior to the Friday before the next Council meeting.

Higgins indicated that for this iteration of rule changes, she was not inclined to consider Lumm’s suggestion, which involved a requirement of a 3/4 majority vote in order to make late additions to the agenda. Higgins indicated the possibility of giving Lumm’s suggestion further review by the rules committee. She allowed that there were some agenda-setting issues that need to be addressed. She mentioned the fact that the second reading of the pedestrian ordinance was not supposed to be placed on the agenda for that night, yet had been put on the agenda, which had required its subsequent deletion.

Also during the rules committee meeting, Higgins indicated that the slate of committee appointments, which she is preparing, was not ready for perusal, because not everyone had submitted their preferences.

Council appointments will need to fill the slots that Stephen Rapundalo previously held, having lost the Nov. 8 Ward 2 election to Jane Lumm. Those include the following council committees: audit committee, budget committee, administration and labor committee, and liquor control committee. Rapundalo also served as the city council representative to the housing and human services board (HHSB) and the local development finance authority (LDFA) board.

At the Nov. 21 council meeting, Higgins announced her intent at the council’s next meeting to nominate Rapundalo to fill a different (non-council) slot on the LDFA board, which is an existing vacancy.

Outcome: The council voted unanimously to postpone ratification of council rules and committee appointments until Dec. 5.

Chilled Water

On the agenda was an item that provided permission to the University of Michigan to install chilled water facilities under Tappan Street. The long-term mechanism used to grant the permission is an “occupancy agreement.” The university and the city disagree on the question of whether the agreement grants the university an “interest in land.”

As a result, a memo from the city attorney’s office – which accompanied the resolution that the city council was asked to approve – states:

The University has insisted that the occupancy agreement be processed as a document that grants it an interest in land, even if it doesn’t. The City does not believe that the occupancy agreement grants to the University any interest in land. As drafted, it grants to the University an interest in land only to the extent it grants the University, by its terms, an interest in land. Nevertheless, in accordance with the University’s request, but with agreeing that the agreement grants an interest in land, the document is being submitted to City Council for approval with a requirement of 8 votes as if it granted an interest in land.

Marcia Higgins (Ward 4) questioned what this actually meant. Briefly put, assistant city attorney Abigail Elias explained that the city council was being asked to give the agreement its approval as if it were granting an interest in land to the university, even though the city did not believe it was doing that. [The Nov. 21 agenda indicated the eight-vote majority city charter requirement, which is triggered by transactions involving an interest in land.]

Part of the context for the discussion with UM on the issue, explained Elias, was other similar arrangements, including some related to the East Stadium bridges reconstruction project.

Outcome: The council voted unanimously to grant permission to the University of Michigan to install chilled water facilities under Tappan Street. 

Communications and Comment

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

Comm/Comm: Warming Center

Signed up as an alternate for one of the 10 reserved spots for public commentary at the start of the meeting was Orian Zakai. Priority is given to those who wish to address the council on an agenda topic, and eight people had signed up to speak about the public art ordinance, which was an agenda item, as well as two others who addressed agenda items.

Zakai and another student stayed until the end of the meeting towards midnight, when there’s another opportunity for the public to address the council. Zakai introduced herself as a PhD student at the University of Michigan, speaking on behalf of students who want to establish a 24-hour warming center. The Delonis Center, she said, has diminished capacity. [At its Oct. 17, 2011 meeting, the council allocated $25,000 of the city's general fund reserve to keep the shelter's warming center open. It's open only during evening and nighttime hours.]

Zakai described how the goal of the group is to establish a 24-hour center, so that also during the day people have a place to go to stay warm.

She said that her group already has 25 volunteers and a petition signed by 516 community members. There will be an organizational meeting on Nov. 28, she said. [The meeting starts at 8 p.m. at Cafe Ambrosia, 326 Maynard.] Her group is trying to locate a site for the warming center by December, she said, and they are looking at a property at the corner of East Huron and Division. She asked the council to support the effort.

Comm/Comm: Sustainable Community

Tony Derezinski (Ward 2) reported that Washtenaw County had received $3 million for a Sustainable Communities project. He said the grant resulted in large part from the Reimagining Washtenaw Avenue corridor study that involved collaboration with four different communities – Ann Arbor, Ypsilanti, Ypsilanti Township, and Pittsfield Township. The key for winning the grant was the collaboration and the consideration of this area as a “region,” Derezinski said.

Comm/Comm: Stadium Bridges

Margie Teall (Ward 4) said she was pleased to be at the site of the groundbreaking for the East Stadium bridge reconstruction project, along with others. Details on detours can be found at annarborbridges.org, she said. She noted that Congressman John Dingell was there, as well as some federal luminaries.

Mayor John Hieftje said it was sobering to hear at that ceremony that there are bridges in worse condition than the Stadium Boulevard bridge – 14,000 in the U.S. are as bad or worse, he noted. He said that the infrastructure of the nation is in peril.

Comm/Comm: 618 S. Main

Mike Anglin (Ward 5) called everyone’s attention to a second public participation meeting at 618 S. Main, the site of the old Fox Tent and Awning facility and encouraged people to attend. [It took place on Nov. 22. For Chronicle coverage of the first meeting, on Nov. 11, see "Public Gets View of 618 S. Main Proposal"]

Comm/Comm: Medical Marijuana

Sabra Briere (Ward 1) reported she’d attended a presentation on Michigan’s medical marijuana law, given by Michigan attorney general Bill Schuette. [Briere is a member of the city's medical marijuana licensing board.]

Comm/Comm: Jane Lumm

Jane Lumm – who won the Nov. 8 election in Ward 2, displacing Stephen Rapundalo on the council – said she just wanted to say thanks for the nice welcome people had given her. Everyone has made her feel welcome, she said.

Comm/Comm: Sue McCormick

City administrator Steve Powers publicly congratulated the city’s public services area administrator, Sue McCormick, on her selection as the head of the Detroit water and sewerage department. He selection, he said, speaks to McCormick’s talents and abilities. Her last day, he said, would be on Dec. 16. An interim public services area administrator will be in place for Dec. 17, he said, and he would keep the council apprised of the process for a permanent replacement.

Present: Jane Lumm, 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. 5, 2011 at 7 p.m. in the council chambers at 301 E. Huron. [confirm date]

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