Signs held by advocates for medical marijuana before the start of the Jan. 3 Ann Arbor city council meeting. Stephen Postema is the city attorney for Ann Arbor, and also president of the Michigan Association of Municipal Attorneys, a section of the Michigan Municipal League. Postema has pushed for a licensing scheme that some medical marijuana advocates say violates the state statute. (Photos by the writer.)

Inside at the meeting, the council ultimately delayed their vote on an initial approval of a licensing scheme for medical marijuana dispensaries, cultivation facilities and home occupations. That initial vote is now scheduled for Jan. 18, with final approval expected in early February, along with zoning regulations affecting medical marijuana-related businesses. The licensing proposal to be considered by the council at its next meeting will be significantly different from the one that they started with Monday night, due to various amendments councilmembers approved, before voting to postpone the measure.

Amendments included: eliminating home occupations from the licensing scheme; increasing the number of licenses to 20 for dispensaries and 10 for cultivation facilities; creating a licensing board; removing reference to “misdemeanor involving a controlled substance”; and revising the language of required internal signage.

The council also dispatched with several other pieces of major business, with scant deliberation. Those included: final approval of revisions to the city’s area, height and placement regulations in the zoning code; final approval for adoption of the Michigan Vehicle Code and the Uniform Traffic Code; appropriation of funds for footing drain disconnection; approval of new fire inspection fees; and a contract for weapons screening services at the new municipal center.

Medical Marijuana Licensing

At Monday’s meeting, the council considered initial approval of a licensing scheme for medical marijuana dispensaries and home occupations.

Before the council's Jan. 3 meeting started, Sabra Briere (Ward 1) talked with city attorney Stephen Postema.

Key elements of the original draft licensing scheme included: no more than 15 licenses would made available citywide for cultivation facilities and dispensaries; preference for applications would be given to facilities operating before Aug. 5, when the city council passed a moratorium on the 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 signs advising that use of marijuana is against federal law; consent to inspections of unspecified frequency. [.pdf of original draft licensing ordinance]

After considerable public commentary, the council contemplated a series of seven amendments to the licensing proposal, most of which were approved – most significantly the exclusion of home occupations from the proposal. The postponement of the initial vote on the licensing until the council’s Jan. 18 meeting means that a final vote on licensing will not come until February. That also resulted in a rescheduling until February of the final approval of zoning regulations on medical marijuana, to which the council has already given its initial approval.

Medical Marijuana Licensing: Public Commentary

Tony 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.” The caregiver centers could include, among other amenities, lockbox storage for members. Dispensaries would be recast as surplus management shops that would purchase surplus medical marijuana from registered caregiver centers. The proposal also called for a non-partisan impartial commission to provide oversight.

Keene cautioned against fear and greed as two words that could destroy the conversation.

[With respect to lockbox storage for members, this appears to be part of the business model for a facility in the Mt. Pleasant area, that successfully defended against a recently attempted shut-down of the facility. The trial court opinion in State of Michigan v. Compassionate Apothecary found that the facility is operated in conformance with the state statute and does not pose a public nuisance. The inclusion of storage for members, who all have state-issued registry cards, is relevant to any proposed licensing scheme that includes regular search and inspection of facilities, because the state statute prohibits searches based on possession of a registry card.

City attorney Stephen Postema has defended regular searches and inspections of facilities as part of licensing on the grounds that seeking to operate a business is a different proposition from seeking to be a patient or a caregiver by obtaining a registry card. But the consequence of using a registry card to obtain marijuana – through membership in a co-op or compassion club – is that one's possessions could be subject to search due to licensing requirements. The contrast between searches based on possession of a registry card and searches based on separate licensing requirements for businesses could be seen as a distinction without a difference.]

Dennis Hayes told the council that he’d sent them letters expressing his view. He recalled from his days in law school, he said, how the Bill of Rights provides citizens with protection when the government possesses broad overreaching power that is unequal with respect to citizens. He reminded the council of the city’s charter amendment on medical marijuana, which also gives priority to individual rights. Hayes said that the proposed licensing scheme overlooks these individual rights. He asked the council to defer passage of the licensing scheme on its first reading and to form a committee to study the issue further.

Robin Schneider introduced herself as an advocate for medical marijuana from the Lansing area. She expressed concerns about the licensing requirements for home occupations, which would require those who are cultivating marijuana in their homes to place their names on a list. She expressed concern about what might happen if the wrong person got hold of the list. She said she did not believe that such a list would be enforceable under the state act.

Rhory Gould spoke against the stigma associated with use of marijuana to provide comfort and relief from pain. People should not have to suffer, as his grandmother had, because of their refusal to ingest marijuana due to the stigma associated with it. He said when the city council passed its moratorium, he had been in the process of setting up a business to help give patients access to marijuana. He suggested that a limit on licenses of 15 is too low, given that there could be an influx of patients who live in more conservative neighboring communities. He spoke against the idea that caregivers should have to be licensed as home occupations. He also raised the possibility that some of the information required of licensees could violate HIPPA regulations.

Charmie Gholson noted that despite the memo issued by U.S. Attorney General Eric Holder, people in Michigan have been raided by federal authorities in the last two months. [.pdf of Holder Memo, authored by David W. Ogden] Patients fear having their information placed in yet another database, she said. Gholson addressed the idea that licensing would help prevent confusion on the part of law enforcement by saying that the Michigan Medical Marijuana Act did not change the responsibilities of a police officer – an insight she attributed to attorney Mark Matt Newburg. She drew an analogy to a driver’s license – when an officer stops a motorist, the first step is to ask the driver to produce a driver’s license.

Matthew Abel echoed the sentiment that a working committee should be formed. He noted that federal search warrants had been served in June 2010 on the Michigan Department of Community Health regarding registry information. He called the limit of 15 licenses unnecessary and anti-competitive.

Rick Thompson introduced himself as the editor of Michigan Medical Marijuana Magazine. He ticked through some of the approaches to medical marijuana that other communities in Michigan had taken. He noted that in some communities, regulations had been enacted so that no facility could meet the requirements of the regulations, citing Macomb County as an example. Inspection requirements had resulted in people declining to apply for permits in Ferndale. In Livonia, an ordinance had been passed declaring the primacy of federal law and as a result, a lawsuit has been filed, he said. He noted that the litigants are patients – voters. He asked that the council strike the parts of the licensing that require registration of names and addresses of business owners, as well as the licensing requirement on home occupations.

Chuck Ream demonstrating outside the Washtenaw County administration building before the Jan. 3 Ann Arbor city council meeting.

Chuck Ream criticized the characterization by city attorney Stephen Postema of parts of the Michigan Marijuana Act as “nonsensical.” Ream said the demonstration outside the building before the meeting started was to encourage the city of Ann Arbor to give up its membership in the Michigan Municipal League. [Postema and Ream have a contentious history on medical marijuana. Postema is president of the Michigan Association of Municipal Attorneys (MAMA), which is a section of the Michigan Municipal League. The MML has issued a statement indicating that it has no position on medical marijuana. However, MAMA has commissioned a study on the issue from Gerald Fisher, professor of law at the Thomas M. Cooley Law School.]

Ream criticized the approach that has been taken to the Michigan Medical Marijuana Act in some communities – trying to block it by appeal to the supremacy of federal law, having the state legislature ”mess with” it, and creating ordinances that will spur endless litigation. That approach, Ream said, would force activist judges to change the law. He criticized the inclusion of marijuana as a Schedule I drug, which he said was for drugs with no medicinal value and that are extremely dangerous. He compared the situation with Germany in the 1940s or the Middle Ages, when governments went along with the “repression of the day.”

Brandy Zink spoke on behalf of Americans for Safe Access. She thanked the council for engaging in the conversation. She described herself as a cancer survivor and an epilepsy patient, who visits Ann Arbor dispensaries. She said she would not be inclined to move to Ann Arbor if the licensing ordinance results in list-keeping. She stressed the importance of confidentiality. She said the state law is clear about prohibiting searches. She suggested that the council consult other sources of information besides the U.S. Drug Enforcement Administration and the MML.

Medical Marijuana Licenses: Council Deliberations

The council deliberations were structured by a series of seven amendments that Sandi Smith (Ward 1) and Sabra Briere (Ward 1) had worked out. Smith distributed a printed sheet with a summary of amendments, making the discussion somewhat easier to follow.

Medical Marijuana Licenses: Council Deliberations – Amendment 1 (Home Occupations)

The first proposed amendment was to eliminate Section 6:418, which sets forth licensing requirements for home occupations. It also replaced references to “cultivation facilities, dispensaries, and/or home occupations” with the phrase “cultivation facilities or dispensaries.” By way of background, a “home occupation” is defined in the city’s zoning code as: “An accessory use of a nonresidential nature which is performed within a dwelling or within an accessory building, and conducted by members of the family residing in the dwelling, and not more than one additional employee.”

Margie Teall (Ward 4) indicated she would support the amendment. Smith said she would also support it – removal of home occupations from the purview of the licensing scheme would take care of a lot of concerns that had been expressed about list-keeping and privacy, she said.

In response to a query from Carsten Hohnke (Ward 5), Briere said she was not certain that zoning would be affected by the amendment. The point, she said, was that the licensing provision for home occupations would entail the city asking to inspect homes in ways that the state law doesn’t allow. Wiring and plumbing should be handled with ordinary permitting, she said, but that is different from collecting private information.

Hohnke followed up with a query to city attorney Stephen Postema about the extent of the overlap between the proposed zoning regulations. He wanted to know what the rationale was for having the language in the original proposal. Postema responded by saying that he’d been asked by the council to provide a range of options. He indicated that he disagreed that the state law did not cover the city’s ability to include the language. He told the council that their issue was to determine whether there’s something of concern to them – it’s within the power of the city to do this, he said.

Regarding the speakers during public commentary who had expressed concerns about privacy, Postema allowed that some of their concerns would be alleviated by deleting the section. Their fear was, he said, being borne out at the state level. The federal authorities are interested in the state’s lists, he conceded. The activity of the federal authorities, Postema said, did not reflect the sentiments expressed in the Holder memo [.pdf of Holder Memo, authored by David W. Ogden].

The language on home occupations had been included in the proposed licensing scheme, Postema said, at the request of the police department so that they could avoid wasting resources on an investigation. He rejected the comparison that Charmie Gholson had made to a driver’s license during her public commentary. He reiterated that Briere was correct insofar as the privacy concerns public speakers had expressed would be taken care of, but he told the council that they needed to consider whether there are other concerns that they had.

Mayor John Hieftje indicated that based on discussions with the police, there’s a concern about growing facilities, in that other people might find out about them and a threat could develop from outside individuals.

Outcome: The council voted 6-4 to strike home occupations from the licensing proposal. Voting for the amendment were: Christopher Taylor (Ward 3), Stephen Kunselman (Ward 3), Margie Teall (Ward 4), mayor John Hieftje, Sandi Smith (Ward 1), Sabra Briere (Ward 1). Voting against it were: Stephen Rapundalo (Ward 2), Marcia Higgins (Ward 4), Carsten Hohnke (Ward 5), and Tony Derezinski (Ward 2).

Medical Marijuana Licenses: Council Deliberations – Amendment 2 (Number of Licenses)

The second amendment proposed was to modify the cap of 15 total licenses – for dispensaries and cultivation facilities combined. This was to be achieved by striking a section and substituting a new one:

6:415 (4) There shall be no more than fifteen (15) licenses total made available for cultivation facilities and dispensaries and no limit on the number of licenses available for home occupations.

6:415 (4) The first year’s licenses shall be capped at a number 10% higher than the facility licenses applied for in the first 60 days. Any license terminated during the license year returns to the City for re-issuance.

In explaining the rationale for the proposal, Sandi Smith (Ward 1) called the number 15 arbitrary. The idea was to have the number of licenses relate to the level of demand. The additional 10%, she said, would not amount to a large number of additional licenses, even if a much larger number of businesses applied. If 50 businesses applied, that would only mean an additional five licenses.

Stephen Rapundalo (Ward 2) raises his hand to be recognized to speak. To his left is Marcia Higgins (Ward 4).

Stephen Rapundalo (Ward 2) wanted to know if the city attorney’s office had any specific idea as to how many businesses were currently operating. City attorney Stephen Postema indicated that they had a list of about 12 – three are in zoning districts that would not permit their operation if the proposed zoning regulations are passed. Kristen Larcom, an assistant city attorney, clarified that they estimated about 18 businesses total – she was not certain if they were all in operation prior to the enactment of the moratorium. Sabra Briere (Ward 1) clarified that the numbers they were discussing reflected a combined total of dispensaries plus growing facilities.

Rapundalo wondered if it was possible that some businesses opened after the moratorium was enacted.

Marcia Higgins (Ward 4) expressed concern about opening up the number – 50 is more than the city can support, she said, so she would not support the amendment.

Responding to Higgins, Smith said that if the city thinks there are only 18 businesses, but there are actually 50, then those businesses must be operating in a very careful and non-obtrusive manner.

Briere noted that the licensing scheme clearly stated that the business had to already be in operation before the moratorium was enacted.

Christopher Taylor (Ward 3) tried to elicit from Postema an articulation of any possible benefits to having an absolute versus a flexible number. Postema’s response did not seem to indicate any particular benefit.

Briere suggested that the city attorney’s office had a pretty good idea of how many businesses there currently are – she thought it was more than 10 but less than 50.

Higgins suggested modifying Smith’s amendment by stipulating 20 as the number of licenses. Smith indicated she might consider that a “friendly” amendment to her amendment if it were 25. Mayor John Hieftje said the communities that have had the most problems had widespread proliferation of businesses. He felt the licensing scheme would be unenforceable without a set limit, but suggested separating dispensaries and cultivation facilities, capping each at 15.

Recognizing that only one of the existing businesses is a cultivation facility, Margie Teall (Ward 4) suggested a different mix: 25 licenses for dispensaries and 10 for cultivation facilities, which Smith accepted as a friendly amendment to her amendment.

Taylor allowed it is possible that there are businesses currently operating that the city is not aware of, but said in light of the outreach that the city attorney’s office has done, he’d wager that something like 18 is a relatively good number. Based on that, he said, he felt that the 25/10 numbers were “excessive.” He allowed, however, that to date “it has not been an apocalypse.” Still, he did not feel that multiplying the number of licenses in that way was warranted.

Smith clarified that what was being proposed was not 25/10 as the number of licenses. Instead, the number would still result from the number of applications in the first year plus 10%, with an absolute cap of 25/10. Taylor clarified with Smith that the number of licenses would be the lesser of: (1) the number of applications plus 10%; and (2) 25 licenses for dispensaries and 10 for cultivation facilities.

Left to right: Stephen Kunselman (Ward 3), Sandi Smith (Ward 1) and Carsten Hohnke (Ward 5).

Stephen Kunselman (Ward 3) said that the strategy they were contemplating seemed like a reasonable way to deal with any “surprise” about the actual number of facilities that were operating. He expressed some concern that if the cap were too low, it might cause the size of individual businesses to increase.

Postema ventured that one constraint on the size of a business is fear of being raided by the federal government. Hieftje suggested that a numerical combination he could support would be 20/10.

Carsten Hohnke (Ward 5) wanted to have a better idea of what the actual demand is for medical marijuana. Postema allowed that this is hard to assess but he ventured that businesses in California and Colorado that were looking at Michigan were not coming to Ann Arbor to fill a need for patients in Ann Arbor, but rather looking to set up a distribution network for the entire state.

Hohnke said he’d support the amendment, noting that if the number does not meet the need, the number could be increased.

Outcome: The council approved an amendment that set the number of medical marijuana licenses as the lesser of: (1) the number of applications in the first year plus 10%, and (2) 20 dispensary licenses and 10 cultivation facility licenses. Voting against the amendment were Rapundalo and Higgins.

Medical Marijuana Licenses: Council Deliberations – Amendment 3 (Licensing Board)

The third amendment considered by the council was to introduce language that set up a licensing board. In its original form, the section establishing the board read:

(7) The City Council will establish a licensing board to consist of three members of Council, one physician, one medical marijuana caregiver; these are Mayoral appointments. The Board will annually review the licensing criteria, establish the license fee structure, and recommend approval of license applications. Any changes to the number or requirements for licensing will derive from recommendations from this committee and be made to City Council for their approval.

Tony Derezinski (Ward 2) noted that the word “committee” in the last sentence should be replaced by “board” for the sake of consistency. Christopher Taylor (Ward 3) continued deliberations by suggesting the deletion of the last sentence entirely, with its main content – the review of the number of licenses – to be included in the enumeration of the annual activities of the board. The modification was accepted as a friendly amendment to the amendment.

Marcia Higgins (Ward 4) expressed concern about the weighting of the board with councilmembers and suggested a reduction from three to one councilmember. The modification was accepted as friendly to the amendment.

Mayor John Hieftje drew out the fact that staff support for the board would translate into a cost and that this could be funded with licensing fees.

Stephen Rapundalo (Ward 2) drew an analogy to the liquor license review committee – a body he chairs. He described how a great deal of energy had gone into overhauling the city’s process in order to be able to address a “few bad apples,” and went on to say that this had incurred considerable staff time from the fire and police departments. He said that initially, it had cost more because overtime expenses by staff were being incurred, so the committee modified its meeting times to avoid that. He indicated that the medical marijuana board would also need some way to set up its own processes.

Alluding to the possibility that businesses have to sell a liquor license to another business, Sabra Briere (Ward 1) noted that the language included in the limit on the number of licenses stipulated that any license that’s terminated would be returned to the city for re-issuance.

Derezinski indicated that he agreed with Rapundalo in recognizing the need of the board to determine its own procedures and to engage staff resources in the fire and police departments.

Outcome: The council unanimously approved the amendment setting up a licensing board.

Medical Marijuana Licenses: Council Deliberations – Amendment 4 (Misdemeanor)

The fourth amendment considered by the council was to remove reference to “misdemeanor involving a controlled substance” in two places:

6:415. License Required, Number of Licenses Available, Eligibility.
…
(2) A cultivation facility, dispensary, or home occupation shall not be eligible for a license if any person required under this chapter to be named on the application has been convicted of a misdemeanor involving any controlled substance or any felony under Michigan law, or the law of any other state or the United States.

6:417. Application for and Issuance of New Annual License or Renewal of Existing License for Medical Marijuana Dispensaries and Medical Marijuana Cultivation Facilities.
…
(2) An application for a new annual license or the renewal of an existing license for a cultivation facility or dispensary, shall be submitted to the City Clerk on a form provided by the City, which shall fulfill all of the requirements indicated on the form, including but not limited to:
…
(g) A signed release on a form included with the application form permitting the Ann Arbor Police Department to perform a criminal background check to ascertain whether any person named on the application has been convicted of a misdemeanor involving any controlled substance or any felony under Michigan law, or the law of any other state or the United States.

Stephen Rapundalo (Ward 2) asked what the rationale was for the insertion of the language. City attorney Stephen Postema indicated that it related to the ability of someone to comply with laws and that a person’s track record was one way to approach that.

Mayor John Hieftje said that when people commit crimes and then pay their debt to society, they sometimes have that held against them for the rest of their lives. He suggested a further modification that would exclude felony convictions as well, with some kind of timeframe like 10 years in the past.

Sabra Briere (Ward 1) – alluding to the provisional quarters for that night’s council meeting, in the county board of commissioners chambers – said she’d sat in the same room when the county board had struggled with the issue and she would consider Hieftje’s suggestion a friendly amendment. [See Chronicle coverage: "No More Felony Box on County Job Forms"]

Responding to a query from Christopher Taylor (Ward 3), Postema indicated that the state Michigan Medical Marijuana Act had language referencing felonies, which assistant city attorney Kristen Larcom confirmed. Hieftje then withdrew his amendment to the amendment. However, Carsten Hohnke (Ward 5) pointed out that the state law had to do with patient and caregiver registration cards, not the ability to operate a business. Postema indicated he could get back to the council on the issue.

Outcome: The council unanimously approved the amendment striking reference to misdemeanor infractions, leaving the question of felonies for analysis by the city attorney.

Medical Marijuana Licenses: Council Deliberations – Amendment 5 (Signage)

The licensing scheme proposed by the city attorney’s office included a requirement that licensed businesses post signs inside the business with the following language:

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.

In introducing the amendment, Sandi Smith (Ward 1) noted that the revision simply reflected the full context of the Michigan Medical Marijuana Act [portion that's excised out of context in the city attorney's draft is in bold]:

ALTHOUGH FEDERAL LAW CURRENTLY PROHIBITS ANY USE OF MARIHUANA EXCEPT UNDER VERY LIMITED CIRCUMSTANCES, STATES ARE NOT REQUIRED TO ENFORCE FEDERAL LAW OR PROSECUTE PEOPLE FOR ENGAGING IN ACTIVITIES PROHIBITED BY FEDERAL LAW. THE LAWS OF ALASKA, CALIFORNIA, COLORADO, HAWAII, MAINE, MONTANA, NEVADA, NEW MEXICO, OREGON, VERMONT, RHODE ISLAND, AND WASHINGTON DO NOT PENALIZE THE MEDICAL USE AND CULTIVATION OF MARIHUANA. MICHIGAN JOINS IN THIS EFFORT FOR THE HEALTH AND WELFARE OF ITS CITIZENS. SEE, MCL 333.26422(c). IF YOU HAVE ANY QUESTIONS OR CONCERNS PLEASE CONSULT WITH YOUR ATTORNEY.

Outcome: The council unanimously approved the revision to the language on the sign.

Medical Marijuana Licenses: Council Deliberations – Amendment 6 (May vs. Shall)

The sixth amendment considered by the council replaced “may” with “shall” in one section:

(3) Approval of Application. The city administrator or designee may shall issue a license for a cultivation facility or dispensary if inspections for safety and zoning compliance, criminal history background checks of all persons named on the application, …

The distinction between “may” and “shall” marks a distinction between what is permissive and what is mandatory. So Stephen Kunselman (Ward 3) expressed concern that the obligation to issue a license might conflict with the upper limit on the number of licenses available. Marcia Higgins (Ward 4) also expressed concern about the change from “may” to “shall.”

Sandi Smith (Ward 1) pointed out that there’s a distinction between “approval” of the license and “issuance” of the license – the latter being a clerical act.

Outcome: The change from “may” to “shall” was approved, with dissent from Higgins.

Medical Marijuana Licenses: Council Deliberations – Amendment 7 (Package Labels)

The amendment was to remove a requirement that a patient’s name and the prices of the product be affixed to the label of packages:

(4) All marijuana delivered to a patient shall be packaged and labeled as provided in this chapter. The label shall include:
(a) the name of the person to whom it is being delivered
(b) the name of the business delivering the marijuana
(c) that the package contains marijuana
(d) the date of delivery, weight, type of marijuana and dollar amount or other consideration of being exchanged in the transaction; and,
(e) the warning that 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.

Stephen Rapundalo (Ward 2) asked what the rationale was behind the insertion of the language. City attorney Stephen Postema indicated that it was a requirement that would allow dispensaries to keep track of their product. He ventured that it was hard to say whether it was intrusive or not.

Rapundalo said that this is the way that pharmaceuticals are handled – it’s an issue of the product’s pedigree, he said. He didn’t see a problem with the patient name on the label, but was less definitive about having the dollar amount included.

Sabra Briere (Ward 1) indicated that she wouldn’t have objected to the original language if it had required a dispensary to maintain a ledger – it’s the idea that the information must go on the packaging that she objected to.

Marcia Higgins (Ward 4) noted that if people other than the patient – a caregiver, for example –  can pick up a package for a patient, then the patient needs to be able to know that they are getting the package intended for them and that it actually cost what was paid. Sandi Smith (Ward 1) suggested splitting the issues of the name and the dollar amount into separate amendments. However, Rapundalo suggested that the amendment be withdrawn pending further input from the city attorney.

Outcome: The amendment on package labeling was withdrawn.

Medical Marijuana Licenses: Council Deliberations – Main Motion

Amid the many amendments that had been undertaken and in light of some remaining issues, the council was reluctant to vote the proposal through on its first reading. In addition to the packaging and felony record issues, Christopher Taylor (Ward 3) indicated that he wanted to make sure that a caregiver growing 72 plants was not counted as a cultivation facility.

The council elected to postpone the issue until its second meeting of the month, on Jan. 18, which pushes the second reading of the licensing as well as the second reading of the zoning regulations to February.

Outcome: The city council voted unanimously to postpone its first-reading consideration of the medical marijuana licensing proposal.

Area, Height and Placement (AHP)

The council had already given initial approval of the area, height and placement (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"]

A series of postponements since the early September 2010 council meeting led ultimately to amendments approved at the council’s Dec. 6, 2010 meeting. The amendments ensure that districts providing 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.

Although city planner Jeff Kahan and head of city planning Wendy Rampson were on hand to answer questions, the council, having discussed the proposal at previous meetings, approved the measure without deliberation.

Outcome: The city council unanimously gave final approval to the AHP revisions.

Traffic Codes

At Monday’s meeting the council considered final approval to a revision of the city’s traffic ordinances. The revision adopts the Michigan Vehicle Code and the Uniform Traffic Code as part of the city’s own code. The council had given initial approval of the ordinance change at its Dec. 6, 2010 meeting, and had undertaken an amendment at its Dec. 20, 2010 meeting clarifying that the adoption of the MVC and the UTC was being made only to the extent that the codes did not conflict with city ordinances and codes.

The adoption of the two codes is motivated by a desire to make sure that the city’s speed limits are legally defensible.

Traffic Code: Public Commentary

Speaking during the public hearing on the ordinance, James Walker encouraged the council to adopt the ordinance change. He expressed concern that some people appeared not to believe that the state rules are designed to produce the smoothest and safest traffic flow. He cautioned that artificially low speed limits decrease safety. He objected to a media quote from Bob West, in the city attorney’s office, that the speed limit on a section of Newport Road could be increase from 25 mph to 30 mph – Walker characterized that increase as a token gesture. Walker also expressed concern about the use of other studies to justify lower speed limits.

Traffic Code: Council Deliberations

Tony Derezinski (Ward 2) proposed amendments to the ordinance to change the effective date from Jan. 1, which was already three days in the past, to Jan. 13. The amendments were approved with no deliberation.

Outcome: The city council unanimously approved the adoption of the Michigan Vehicle Code and the Uniform Traffic Code.

New Fire Fees

Before the council was approval of a new fee schedule for fire suppression plan review and inspection of alarms and sprinklers.

According to the city, the new schedule is a result of moving the responsibility for the plan review and inspections from the fire department to the city’s construction services, in order to achieve compliance with the Stille-DeRossett-Hale Single State Construction Code Act, 1972 (PA 230).

Sandi Smith (Ward 1) wanted to know if the new schedule was more complex that the old one. She received the clarification that in some places it was, but the fee schedule is for the initial inspection only.

Outcome: The city council unanimously approved the new fee schedule for fire inspections.

Footing Drains

On the council agenda was an item to approve a $1,384,350 amendment to the city’s contract with CDM Michigan Inc. for work on the city’s footing drain disconnection (FDD) program. The FDD program was put in place in the early 2000s as a strategy for mitigating against sanitary sewer backups in some residents’ basements during heavy rains. Part of the load on the sanitary sewer system is due to storm water from footing drains that is led into the sanitary system. The aim of the FDD program is to disconnect these footing drains from the sanitary system, because the water does not need treatment and adds needlessly to the volume of water in the sanitary system.

To help fund the FDD program, the city requires that builders of projects adding to the sanitary sewage volume balance out that additional volume by removing the equivalent of 1.2 times their additional volume from elsewhere in the system – through footing drain disconnects.

Recent renovations to the University of Michigan football stadium added to the load on the sanitary sewage system. So the university paid the city for the equivalent of 140 disconnections at $10,040 per disconnection, for a total of $1,405,600. The city is using $1,275,080 of that sum for the current contract amendment and appropriating $109,270 from its capital budget. The balance of the UM money – the equivalent of 13 disconnections – can be used at the city council’s discretion.

Some of the work to be funded by this amendment will be undertaken along Iroquois Place, where several homes had sewage backups during the June 6, 2010 heavy rains.

Outcome: The city council unanimously approved the footing drain funding allocation without deliberation.

Weapons Screening

Before the council was approval of a $187,000 contract with Washtenaw County for weapons screening services for the 15th District Court. When the court relocates to the new city municipal center from the Washtenaw County Courthouse – where the city has previously leased space – it will not be able to take advantage of the weapons screening services provided there. The scheduled date of relocation is Jan. 14.

The amount of the annual contract is based on a $25.25 per hour cost for officers from the Washtenaw County sheriff’s office. Funds for the contract have been budgeted for FY 2011 and will also be included in the court’s FY 2012 budget.

Sabra Briere (Ward 1) emphasized that this was a cost that was appropriately not included in the cost of constructing the municipal center – it related to operations.

Outcome: The city council unanimously approved the weapons screening contract.

Housing Commission Appointment

The council voted on approval of the nomination of Leigh Greden to the Ann Arbor Housing Commission, which had been put before the council by mayor John Hieftje at the council’s previous meeting. Greden replaces Jayne Miller, who previously served as the city’s community services area administrator, before leaving that post in February 2010 to take a position leading the Huron-Clinton Metroparks. Miller had been appointed to the housing commission after leaving her job at the city, in connection with the wholesale replacement of the entire housing commission board in March 2010. Miller’s tenure with the Metroparks was brief, and she subsequently took a job in Minnesota as superintendent of the Minneapolis park system, which began in November 2010, making it impossible for her to continue to serve on the city’s housing commission.

Greden previously served on the city council, representing Ward 3, until he was voted out of office in the 2009 Democratic primary, due in part to voter dissatisfaction with his use of electronic mail during council meetings – for communications that ranged from sophomoric humor to possible violations of the Open Meetings Act and campaign finance laws. After leaving the city council, Greden left his job as an attorney with Miller Canfield to take a position with Eastern Michigan University as that institution’s head of government relations.

Tony Derezinski (Ward 2) said he wanted to applaud Greden’s appointment, saying that it was Greden who had encouraged Derezinski to serve as the city council liaison to the housing commission. Greden, he said, had an abiding interest in housing issues.

Outcome: The city council unanimously approved Greden’s appointment.

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: Fuller Road Station

Sabra Briere (Ward 1) expressed regret that the scheduled work session on the Fuller Road Station late last year had been postponed and hoped that it would be rescheduled soon. She said she’d had conversations about the station with Sandi Smith (Ward 1) and the mayor. City administrator Roger Fraser indicated that there would be a work session on the subject on Monday, Jan. 10.

Comm/Comm: DDA-City

Christopher Taylor (Ward 3) reported that the two mutually beneficial committees from the city and the Ann Arbor Downtown Development Authority – which are currently discussing the parking contract between the city and the DDA, as well as a plan for the DDA to lead development of city-owned downtown surface parking lots – had met on Dec. 27. Taylor reported that the DDA board will be considering a resolution supporting the council’s planned resolution that would set forth a parcel-by-parcel plan for surface-parking-lot development.

Comm/Comm: Mercury

During his communications time, city administrator Roger Fraser reported a recent hazardous materials incident on Dec. 30, 2010, which involved a mercury spill in a resident’s home. The source of the spill was the weight in an old grandfather’s clock. The fire department and the U.S. Environmental Protection Agency were called and followed the national guidelines for any cases where more than two tablespoons of mercury – about a pound – are spilled. Fraser reminded everyone that cleanup of mercury should be left to professionals.

Comm/Comm: Palestine

During public commentary reserved time, Henry Herskovitz spoke on the issue of Palestine. He noted that the printed agenda contained an error – he was recorded as speaking on the issue of medical marijuana. He reminded the council that he’d spoken to them in June 2009 about a peace activist who’d been killed by a tear gas canister in the city of Bi’lin in Palestine – Bassem Abu Rahmah. He held up a photo of himself with Abu Rahmah. The man’s sister, Jawaher Abu Rahmah, Herskovitz reported, had been heavily tear gassed and had died on New Year’s Day. The identity of the person who had killed her, he said, had not been released. He characterized the actions of Israeli military forces as that of “gangsters.” Even when it’s a U.S. citizen who is killed, he said – as was the case when Rachel Corrie of Olympia, Washington was killed by a bulldozer – there is little reaction. He wondered what the reaction would be if North Korea killed a U.S. citizen. The demonstration outside the Beth Israel congregation for the coming Saturday, Herskovitz said, would be an occasion to remember Jawaher.

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

Absent: Mike Anglin

Next council meeting: Due to the Jan. 17 Martin Luther King Jr. holiday, the meeting will be held on Tuesday, Jan. 18, 2010 at 7 p.m. in Washtenaw County administration building 220 N. Main St. [confirm date]

During a break in the meeting, Stephen Rapundalo (Ward 2) and Marcia Higgins (Ward 4) – seated at the right of the frame – came across the table to work on the wording of the Washtenaw CIA resolution. Standing, from right to left, are city attorney Stephen Postema, Mike Anglin (Ward 5) and Terri Blackmore of WATS (Washtenaw Area Transportation Study.) (Photos by the writer.)

In its main business of the evening, the council approved a resolution of intent to coordinate with Pittsfield Charter Township, Ypsilanti Charter Township and the city of Ypsilanti to explore the establishment of a corridor improvement authority (CIA) along Washtenaw Avenue.

The initiative would take advantage of Michigan’s Corridor Improvement Authority Act to create a tax increment finance (TIF) district. A possible timeline for establishing the CIA would include public hearings in early 2011, formation of the CIA and appointment of its members in mid-2011, with development and approval of the corridor development plan by late 2011.

The vote on the resolution of intent came after intense scrutiny of the resolution’s wording to ensure that it conformed with the requirements of the state enabling statute, while also addressing councilmembers’ concerns that the language not inappropriately suggest that the establishment of the CIA was further along than it actually is.

Several members of the public addressed the council at the public hearing on the adoption of the Michigan Vehicle Code and the Uniform Traffic Code. The adoption of the two codes is motivated by the city’s desire to make its speed limits legally enforceable. As the extensive public commentary and council deliberations reflected, the challenge is to set speed limits in a way that is legally enforceable but has adequate consideration for non-motorized users of roadways.

The council voted to adopt the two codes, after having given initial approval at its Dec. 6, 2010 meeting. However, amendments to the language used to adopt the two codes made at Monday’s meeting were substantial enough that the proposed ordinance revision was reset to its first reading stage. All ordinances must be approved at a first and second reading before the council.

Attached as a communication to the council’s agenda was an item that will likely receive a great deal of discussion early next year – a draft of a city council resolution that would specify how the Ann Arbor Downtown Development Authority will go about facilitating development of downtown Ann Arbor surface parking lots. A key resolved clause of the draft resolution, apparently meant to address a historical point of friction between the city and the DDA, would require the city to reimburse the DDA for some of its expenses under certain scenarios.

Also at the meeting, in response to a report from the Environmental Working Group that the carcinogen hexavalent chromium had been detected in Ann Arbor’s drinking water – along with that of several other communities – city administrator Roger Fraser gave the city’s take on the study. [Chronicle coverage of that issue: "Context for Chemical in Ann Arbor Water"] 

Washtenaw Corridor Improvement Authority (CIA)

Before the council was a resolution of intent to work together with Pittsfield Charter Township, Ypsilanti Charter Township and the city of Ypsilanti to explore the establishment of a corridor improvement authority (CIA) along Washtenaw Avenue. The initiative would take advantage of the state of Michigan’s Corridor Improvement Authority Act to create a tax increment finance (TIF) district. [.pdf of Public Act 280 of 2005]

Washtenaw CIA: Background

At a Sept. 13, 2010 work session, the Ann Arbor city council had received a presentation about establishing a CIA for the Washtenaw Avenue corridor. A technical committee consisting of over 20 different planning professionals and representatives of the four municipalities that are involved has worked on the initiative over the last year. The technical committee was formed out of efforts by an action team that produced a report on the corridor in 2009. Work on the project can be traced back at least three years.

Contained in the technical committee’s report is a possible timeline for eventual establishment of the CIA that would include public hearings in early 2011, formation of the CIA and appointment of its members in mid-2011, with development and approval of the corridor development plan by late 2011. [Background documents available on the Reimagining Washtenaw website]

Washtenaw CIA: Council Deliberations

Tony Derezinski (Ward 2) introduced the measure, describing the corridor authority as an example of an opportunity for collaboration among different municipalities to address an area in need of improvement. At Derezinski’s invitation, Terri Blackmore, executive director of the Washtenaw Area Transportation Study (WATS), described the proposal in somewhat more detail. She said that establishing an authority would allow for transportation improvements. Examples she gave include installing additional sidewalks to fill in gaps, adding bus stops, and adding queue-jump lanes that would allow buses to navigate through the corridor more quickly than other traffic.

Blackmore stressed that establishing a corridor authority is a process and that over the next few months, they’d be able to get a better idea of the feasibility and the costs involved.

At the request of Carsten Hohnke (Ward 5), Blackmore identified as key transit recommendations: eliminating sidewalk gaps; creating mid-block crossings and 5-foot in-street bike lanes; constructing “super” bus stops with more elaborate shelters and information systems; and forming neighborhood connectors.

Asked by Hohnke to comment on the land use recommendations associated with the project, city planner Jeff Kahan indicated that they generally included intensified land use consistent with the area, height and placement revisions on which the council would take final action on Jan. 3, 2011. [Recent Chronicle coverage: "Ann Arbor Council Focuses on Land Issues"]

Marcia Higgins (Ward 4) identified a “whereas” clause that was of concern to her, because it seemed to indicate that the city was already engaged in the process that the resolution was meant to start. The clause in question [emphasis added]:

Whereas, The Ann Arbor City Planning Commission has begun the process of integrating recommendations from the “Washtenaw Avenue Corridor Redevelopment Strategy” into the City Master Plan;

Derezinski stressed that the resolution was simply a recognition that the corridor authority is a good idea and that the city should look at it – the city could back out at any step. The resolved clauses were taken straight out of the enabling statute, he said.

After further deliberations, the whereas clause of concern to Higgins was removed by “friendly” amendment, which did not require a vote. Christopher Taylor (Ward 3) clarified with the city attorney that the clause was not essential from a statutory point of view.

Higgins also expressed some concern that business owners along the corridor hadn’t all been notified in a timely fashion about some of the meetings that had been held by the technical committee. Blackmore said there would be two additional meetings scheduled – with residents and businesses.

At Blackmore’s suggestion, the date specified in the council resolution for the council to take action next year was changed from early February to early March.

Having dispatched with one of the “whereas” clauses, Higgins focused on the “resolved” clauses and asked that the clause specifying the boundary be removed. She allowed that a boundary would need to be adopted eventually, but not necessarily that evening.

Differing views were aired by city attorney Stephen Postema and Terri Blackmore about the need for the boundary clause under the statute. Postema’s view that it was necessary prevailed. From the statute [emphasis added]:

(2) In the resolution of intent, the governing body shall state that the proposed development area meets the criteria in section 5, set a date for a public hearing on the adoption of a proposed resolution creating the authority, and designate the boundaries of the development area.

Stephen Rapundalo (Ward 2) expressed concern about use of the word “endorse” in one of resolved clauses, saying that he was hung up on that. He said he was not going to support the resolution if what the clause meant to express that the council “agreed” with the strategy. After a brief recess to clarify what was absolutely essential in the resolution from a statutory point of view, the resolved clause was amended as follows [deleted material in strike-through, added material in italics]

RESOLVED, That City Council endorses accepts receipt of the Washtenaw Avenue Corridor Redevelopment Strategy and its recommendations for land use, transportation improvements, and continued community cooperation.

Stephen Kunselman (Ward 3) expressed reservations about the boundary as designated in the resolution of intent, in particular the way it included land along Platt off of Washenaw Avenue, as well as along Huron Parkway. Those areas have a different character from the corridor, Kunselman said. Postema clarified that the statute allowed for contraction of the boundary area after the resolution of intent.

Sabra Briere (Ward 1) reminded her colleagues that what they were talking about is a tax increment finance (TIF) district. If they eventually approved it, it would mean the appointment of a board and that board would make decisions about how money gets spent. [By its nature, a TIF district captures the increment between taxes collected based on current property values and those resulting from improvements, and allocates the money to the TIF authority for decisions on spending.] It’s a big deal, she cautioned.

Derezinski picked up on Briere’s phraseology and said that yes,  it’s a “good big deal.” He stressed the importance of collaboration, saying that the authority could become more than the sum of its parts. The corridor right now, he said, is a “mess.” Mayor John Hieftje concurred that the corridor right now “doesn’t work.”

Sandi Smith (Ward 1) offered her wholehearted support of the resolution, saying that a TIF is a tool for achieving improvements.

Outcome: The council voted unanimously to approve the resolution of intent to collaborate with the three other municipalities to establish a corridor improvement authority along Washtenaw Avenue.

Michigan Vehicle Code (MVC), Uniform Traffic Code (UTC)

Before the council for a second reading was a measure that proposed to adopt the complete Michigan Vehicle Code (MVC) and the Uniform Traffic Code (UTC) as 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 in an attempt to reserve for itself local authority for setting 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.

The two sets of codes provide for the various legal means by which a city can lawfully set speed limits. By adopting the full MVC and adding the UTC, the city’s position is that it might be able to retain some flexibility with the way it sets local speed limits.

Although the council eventually approved the change to its traffic ordinances, amendments were undertaken that reset the ordinance change to its first reading. The proposal will need to be approved at an additional reading by the council in order to be enacted.

MVC and UTC Adoption: Public Hearing

All changes to city ordinances require a public hearing. Several people addressed the council on the issue, with most of them recognizing the need for the council to adopt the two sets of codes. However, a clear difference in perspective was displayed between those advocating for speed limits that do not unfairly punish motorists, and those who wanted to make sure that safety concerns were addressed with respect to non-motorized users of the transportation system – pedestrians and bicyclists.

Characterizing himself as an unwilling expert on the subject, Charles Loucks described how he’d received a speeding ticket and had used state laws to challenge the ticket. As a result, Loucks said, the city attorney’s office had elected not to pursue it. The way current speed limits are set on some sections of roads, he said, makes rule-breakers out of most motorists. The speed limits, he said, need to be benchmarked against reality. If the rules are set up in a way such that 95% of motorists become rule-breakers, people will start to think the city is playing games with them.

Sabra Briere (Ward 1) with James Walker before the meeting started.

Also addressing the council was James Walker, who had filed the lawsuit that had resulted in the 2008 court decision against the city of Ann Arbor. Walker allowed that he had “put some of the fire” behind the issue. Walker spoke for the National Motorists Association. He contended that when the city recently lifted limits from 30 to 35 mph in some areas and from 40 to 45 mph in others, the actual travel speed did not change. He noted that there was not necessarily a relationship between the number on the speed limit signs and the speed of the traffic.

Walker said that the city should be following state law, which includes an access point formula for setting speed limits. He also advocated for the use of the 85 percentile standard for setting speed limits. [The federal "Manual on Uniform Traffic Control Devices" stipulates this as a standard: "When a speed limit is to be posted, it should be within 10 km/h or 5 mph of the 85th-percentile speed of free-flowing traffic."]

Jeff Gaynor introduced himself as a Ward 3 resident who also teaches at Clague Middle School and participates in the Safe Routes to School Program. [By way of background, at its Sept. 7, 2010 meeting the city council authorized application for a grant to fund infrastructure improvements as a part of Thurston Elementary's Safe Routes to School Program. The city announced recently that $160,840 had been awarded to help construct pedestrian refuge islands, flashing traffic beacons, crosswalk markings, and increased signage. Thurson is located just south of Clague Middle School, where Gaynor teaches. Nixon Road is a major north-south artery located just west of the two schools.] Gaynor cautioned that the speed limit on Nixon Road would likely be increased, when the council enacted the ordinance change.

Gaynor explained that for the last three years, he’s been carless. And he pointed out that cars are simply bigger and faster than pedestrians and cyclists. Faster traffic is less safe, he said, and increases the risk of fatality. In the U.S., he said, we sacrifice around 40,000 people a year to our “god, the automobile.” Although he understands the issue with the need for the city to adopt the state law, he said he hoped that  there could be some kind of compromise.

Erica Briggs spoke on behalf of the Washtenaw Bicycling and Walking Coalition, which has developed a position on the issue. [.pdf of WBWC position on speed limits] From the statement, portions of which she read aloud:

We urge Council and city staff to take special measures to ensure safety for all road users in any cases where speed limits must be raised. In addition, we ask that the City continue working with the Michigan Municipal League and other cities to seek reforms to the Michigan Vehicle Code, with the goal of promoting the safety of all road users and the vitality of our communities.

Briggs was critical of the National Motorists Association, which Walker represented, for its opposition to mandatory seatbelt laws, texting-while-driving bans, zero-tolerance DUI policies, and traffic calming.

Briggs was in the middle of giving some specific numbers to support Gaynor’s contention that likelihood of fatality increases with speed, when her three-minute time elapsed.

Karen Moorhead, who spoke later in the hearing, picked up the thread of increased fatality rates by clarifying that in pedestrian-car accidents, the probability of pedestrian death increases from 5% at 20 mph to 45% at 30 mph to 85% at 40 mph. Moorhead also reported a conversation she’d had with a school crossing guard who said that many motorists don’t realize he’s there, even when he’s standing with a stop sign in the middle of the road.

Bruce Geffen, a colleague of Gaynor’s at Clague Middle School, told the council that he has students who walk across Nixon Road to get to school. Increasing the speed limit there, he felt, puts his students in danger. He’d like to see some consideration along Nixon Road in terms of crosswalks, he said.

David Sponseller signed up to speak during public commentary reserved time on the topic of long-range transportation planning but had arrived late to the meeting and missed that opportunity. As the public hearing unfolded, however, he elected to weigh in on the topic. He told the council that he’d driven Huron Parkway 18,000 times – a four-lane road with no entrances – and could not figure out why the speed limit is only 35 miles an hour.

Tom Wieder told the council that they did not have a lot of choice – people have already challenged the city’s approach to setting speed limits and won. He urged the council to adopt the MVC and then do a legitimate traffic study. With respect to the safety issue, he assured the audience that he did not want to run down bicyclists or pedestrians. He urged recognition of the difference between the number on speed limit signs and actual traffic speeds. He cautioned against the false sense of security that can come from seeing a sign that indicates 25 mph as the speed limit.

MVC and UTC Adoption: Council Deliberations

Council deliberations began with solicitation of some remarks from Bob West of the city attorney’s office. He sketched out the history of the 2006 change to the Michigan Vehicle Code, which added an access point formula for the setting of speed limits. An access point is a driveway or intersecting roadway. It is, according to the MVC, prima facie lawful to operate a motor vehicle at speeds no faster than the following.

…

(d) 25 miles per hour on a highway segment with 60 or more vehicular access points within 1/2 mile.

(e) 35 miles per hour on a highway segment with not less than 45 vehicular access points but no more than 59 vehicular access points within 1/2 mile.

(f) 45 miles per hour on a highway segment with not less than 30 vehicular access points but no more than 44 vehicular access points within 1/2 mile.

…

The city had faced a legal challenge in 2008, West said, when Judge Julie Creal of the 15th District Court had ruled that the two sections of roadway where tickets had been issued were not in compliance with the access point formula. The circuit court had then upheld Creal’s decision, West said. The city had attempted to address the situation by  un-adopting specific sections of the MVC in 2008, but now West said he agreed with the two speakers during public commentary – Walker and Wieder – that the city needed to adopt the MVC and the UTC.

Bob West, of the Ann Arbor city attorney’s office.

Once the two codes are adopted, West said, the city can conduct further traffic studies.

Sabra Briere (Ward 1) wanted  to know how the MVC interacted with the “complete streets” urban planning policies – which call for roadways to be accessible to all users. She noted that the faster cars drive, the less secure bicyclists and pedestrians are. West gave the new HAWK signal at the intersection of Huron and Chapin streets as an example of a measure that the city has enacted to mitigate against potentially unsafe crossings.

Later in deliberations, Carsten Hohnke (Ward 5) elicited from West the statement that the 2006 change to the MVC was not undertaken in response to “complete streets” policies, but rather as a reaction to communities that tried to make a money-maker out of setting unreasonable speed limits and ticketing motorists for violations of those limits. Ann Arbor did not do that, said West.

Margie Teall (Ward 4) was concerned about the city’s ability to set speed limits in school zones. West indicated that Sections 257.627, 257.628, 257.629 of the MVC specifically address the ability to set speed limits in schools zones – which are defined in the MVC as extending  ”not more than 1,000 feet from the property line of the school in each direction.”

In a theme that West reiterated often throughout questioning from councilmembers, he told Teall that the ability to justify speed limits other than what are specifically laid out in terms of the access point formula would depend on studies conducted by traffic engineers.

Hohnke elicited from West a statement that the city does not set out to ticket drivers for the purpose of generating revenue. West said that a ticket is, in any case, not exactly a money-maker – some of the revenue goes to the state and helps fund libraries. [Penal fine revenue for libraries came up in a Dec. 20 meeting of the Ann Arbor District Library board. See Chronicle coverage: "Ann Arbor Library Weighs in on Lawsuit"] The goal of issuing tickets, said West, is to get people to slow down and drive safer.

Hohnke wanted to know if either the access point formula or the 85th percentile guideline take pedestrians or bicyclists into consideration. West indicated that the access point formula does not, while the 85th percentile does, because presumably drivers adjust their driving accordingly to accommodate pedestrians and bicyclists.

Mike Anglin (Ward 5) said he agreed that the Ann Arbor police department did not issue tickets for revenue purposes. He wanted to know from West, however, if it actually had an influence on driver behavior. West said he thought it did, but expressed concern that when violations were converted by the court from moving violations to non-moving violations, they had less of an impact. Anglin ventured that causing an actual accident had a greater impact that any fine.

Sandi Smith (Ward 1) wanted to know what recourse the city might have if the speed limit along Newport Road, by way of example, were to be raised. West appealed to the possibility that a study by traffic engineers could provide some recourse. West said that accident rates might provide a mechanism on an after-the-fact basis.

Christopher Taylor (Ward 3) ventured that under the codes the council was being asked to adopt, the setting of speed limits ceases be a political issue – a matter of the desire of the community – and instead becomes data-driven. West rejected the idea that somehow the values of the community would be forsaken under the code adoption. Mayor John Hieftje also interjected that in his experience they’d never been set on a political basis. Taylor clarified that he had not meant “political” is a grand sense.

Briere asked West to comment on the notion that motorists typically believe they can go 15 mph faster than the posted speed limit, so that a 35 mph zone might result in people thinking they can drive at 50 mph. If speed limits were set based on an 85th percentile standard, Briere wondered if that might result in limits ratcheting upward. West suggested there is a limit to everyone’s nerve.

Briere supposed that there could be increased requests for traffic calming measures in residential neighborhoods, which recent budget tightening had reduced to one or two per year. [Reduction of the traffic calming program was a part of the FY 2010 budget discussion.] West indicated that he didn’t think residential areas would be affected by increased speed limits. Briere countered that Pontiac Trail goes through a residential neighborhood and currently has a speed limit of 25 mph.

Tony Derezinski (Ward 2) confessed that in 15 years of commuting to Lansing he’d received a speeding ticket. He thanked West for his work. Derezinski described a meeting that he’d attended with West and the state police on the 85th percentile guideline. He said that while there are outliers, the 85th percentile was a good standard to use. He urged the council to adopt the two codes.

Hohnke pressed West to clarify whether the city could enact its own speed limits as a result of other studies it might conduct, or if the city just hoped it could do so. West said there’s nothing in the MVC to preclude the city from using some other engineering study. He said that his reading of section 257.627 of the MVC was not that the access point formula is the only way to set speed limits. He allowed that the MVC was not explicit about what additional studies might be used for, but because it’s in the statute, it had to mean something. The relevant passage to which West was referring reads:

(11) Nothing in this section prevents the establishment of an absolute speed limit pursuant to section 628. Subject to subsection (1), an absolute speed limit established pursuant to section 628 supersedes a prima facie speed limit established pursuant to this section.

(12) Nothing in this section shall be construed as justification to deny a traffic and engineering investigation.

An amendment to the proposed ordinance change, which was brought forward by Derezinski, inserted language to clarify that the adoption of the MVC and the UTC was being made only to the extent that the codes did not conflict with city ordinances and codes. West explained that the need for the language was due to a 1985 court case involving a local law that was inconsistent with the UTC, even though the UTC had been adopted by the local municipality.

Outcome on the amendment: The council unanimously adopted the amendment inserting language on conflicts between local code and the UTC.

Outcome on the resolution: The council unanimously approved the resolution adopting the Michigan Vehicle Code and the Uniform Traffic Code. This was the second occasion on which the council had approved the adoption. However, due to the amendment, the status of the ordinance change was reset to a first-reading approval. The council will need to approve the change at an additional meeting, in order for the ordinance to be enacted.

Peter Pollack: “Looking over your shoulders”

At the conclusion of the public hearing on the Michigan Vehicle Code, Marcia Higgins (Ward 4) announced that she’d received a message from Peter Pollack’s wife, Eleanor, that Peter would no longer be able to be a member of the design guidelines task force – he had entered hospice care and was not expected to live through the week.

Peter Pollack, chairing the Ann Arbor public market advisory commission at its Nov. 3, 2009 meeting. As the sticker he’s wearing suggests, that was Election Day.

[The design guidelines are the final piece of the A2D2 rezoning initiative for downtown Ann Arbor. The zoning provisions have already been approved by the council. Higgins is the council representative on the task force.]

The message from Eleanor Pollack passed along Peter’s pleasure that he’d been included on the task force and had been able to contribute to it. She said that as the task force completed its work, Peter would “certainly be looking over your shoulders.”

Chronicle readers will recognize Pollock’s name from past coverage – of the public market advisory commission of which he was a member, or public commentary on a variety of site plan proposals where he brought his expertise as a landscape architect to bear.

His remarks inevitably spoke to the rhythms and patterns of surrounding context, whether that context was the natural or the built environment. For example, his suggestion for the Fuller Road Station was that its design should more closely echo the contours of the river valley. From a March 2010 Chronicle report on the city’s park advisory commission:

[Pollack] noted that his office had been involved in designing the Fuller Road boulevard in the early and mid-1980s. It’s the only place in the city where you get a sense of being in the river valley. It’s a very difficult place to put a very active facility, he said. Though the Fuller Road Station concept plan has been approved, he acknowledged, there’s still time to rethink the design. He urged commissioners to consider a structure that would be long and low, stretching across the current two soccer fields to the east – rather than building the taller structure that’s being proposed. It can be designed to be part of the park, rather than an object that’s plopped into the space.

Pollack said that in some ways he felt like he was on a horse tilting at windmills. The current design team are “good folks,” he said, but there’s just one chance to design the facility at that location, and they should do it in the best way possible.

Pollack was a gentle man. He always had a kind greeting for The Chronicle’s reporters when he encountered us. But he was also tenacious. At a public meeting on the Near North development, which was eventually approved by city council, he objected to the speculation that some expressed about the developer’s motives – he wanted the conversation to be about the project design. From The Chronicle’s report of that meeting:

[Pollack] objected to discussion of what people believed the developer’s motive might be and rejected that line of thinking as narrow and unproductive. Pollack said that he had problems with some of the design features, but that they should focus on the challenge of whether the proposed design could be modified in a way that made it sufficiently integrated into the visual patterns and rhythms of the prevailing architecture of the neighborhood to win support from the community.

What Pollack thought mattered to people. His reaction was one standard against which people measured themselves. From a comment left on The Chronicle’s website, about the Near North meeting, by Ann Arbor Observer editor John Hilton, who also attended the meeting:

That’s the issue I and others were trying to get at with our questions about what 3 Oaks paid for the property. We must not have done a very good job, since two people I admire – Peter Pollack and Sandi Smith – spoke up to say that we shouldn’t question 3 Oaks’ motives.

Among his contributions to the community, Pollack will be remembered for his work chairing the Allen Creek greenway task force, which was appointed by the city council in 2005.

Higgins, at the conclusion of her announcement in city council chambers, characterized Pollack as an “amazing contributor” to the design guidelines task force.

Pollack passed away later that evening. He was 71.

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: Mutually Beneficial Discussions with DDA

Christopher Taylor (Ward 3) reviewed for his colleagues that the two committees from the council and the Ann Arbor Downtown Development Authority board – known as the mutually beneficial committees – had been holding discussions with two goals: (1) amending the contract under which the DDA manages the city’s parking system, and (2) creating a process for developing downtown city-owned surface parking lots. As originally conceived, the idea was to pursue the two goals at the same time, in parallel.

However, Taylor reported that the two committees had revisited their thoughts about timing. Because the two committees had arrived at a draft of a resolution for developing a parcel-by-parcel plan for redevelopment, Taylor said, the resolution had been attached to that night’s information packet. Given that it was ready, he quipped, why hold off on a good thing? The DDA board would review the resolution in early January, Taylor said, and he anticipated that the draft could be brought to the council for consideration at its Jan. 18, 2011 meeting. [.pdf of the draft resolution]

The resolved clauses of the resolution appear to be constructed to prevent a repeat of a scenario from 2005, when the DDA had brought forward a development proposal for three parcels – the so-called 3-Site Plan – but the city council had declined to ever place the proposal on its agenda. One resolved clause from the draft resolution requires placement of items on the council agenda [emphasis added]:

RESOLVED, that for items above requiring City Council approval, the City Administrator shall place such items on the agenda of City Council no later than thirty (30) days after the City Administrator’s receipt thereof and determination that such items comply with City requirements. In the event that such item is not voted upon within thirty (30) days of being placed upon the agenda, then at each subsequent meeting of the City Council where the item does not appear on the agenda, the City Administrator during Communications from the City Administrator shall provide a status report as to reasons for the item’s failure to appear on the agenda.

Another resolved clause of the resolution foresees the city reimbursing the DDA for costs, if a proposal reaches a point of city council approval, but the city council declines to approve the item for any reason other than a failure to comply with zoning [emphasis added]:

RESOLVED, that in light of the DDA’s expenditures of Phase IV monies in reliance upon City Council’s approval of the Parcel-by-Parcel Plan, any resulting RFP, and the DDA-proposal recommendation, if City Council declines to approve a Parcel site plan for any reason other than the site plan not complying with applicable zoning regulations, then the City of Ann Arbor shall reimburse the DDA for all direct DDA Phase IV costs related to such Parcel.

In his communications, Mike Anglin (Ward 5) expressed disagreement with an unspecified statement that had been made in connection with discussions between the city and the DDA, which had been to the effect that the DDA could serve the role of shielding the city council from citizens. He stressed that citizens should feel free to contact city councilmembers with respect to issues involving the DDA.

By way of background, the specific idea to which Anglin was alluding is that the DDA would – in connection with redevelopment proposals for the downtown – serve to remove some of the political dimension from the discussion. This idea has been a part of the conversation during the course of the “mutually beneficial” discussions that have taken place between the city and the DDA since early summer. From The Chronicle’s report on a September 2010 retreat held by the DDA:

[DDA board members] were, however, content to let the DDA “take the heat” and “provide political cover” for elected officials to absorb some of the community criticism that could arise against specific proposals.

Prior to that DDA board retreat, the two mutually beneficial committees had met twice in August 2010. From The Chronicle’s report of the second of the August meetings:

The idea, said [DDA executive director Susan] Pollay, was to put the DDA at the “edge of the sword” so that her organization would “take the heat” from the community.

Comm/Comm: Human Rights Commission

Sandi Smith (Ward 1) gave a report out from a city’s human rights commission, the first one  that had taken place since Smith was appointed to that body in November 2010. She reported topics of discussion as including marriage equality in Michigan and a privacy ordinance. [.txt file of a draft ordinance circulated earlier in the year by Students Against Surveillance at the University of Michigan]

Smith characterized the repeal by the U.S. Senate of the “Don’t Ask Don’t Tell” policy for gays in the U.S. military as a “huge step forward” on the national stage.

Comm/Comm: Voting

As part of his city administrator’s report, Roger Fraser reminded the community of the participation by Friends of the Ann Arbor Skatepark in a $250,000 challenge sponsored by Pepsi.

City clerk Jackie Beaudry distributes councilmember nameplates in preparation for the meeting.

[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.] Fraser noted that it’s possible to vote more than once – you can vote once each day, unlike “the things that Jackie does.” The comment was an allusion to city clerk Jackie Beaudry, who handles election-related issues for the city.

Elections were also part of the consent agenda, which the council approved without comment. The election-related item was a resolution of acknowledgment meant to help publicize a change in federal and state law that overrides the city charter and has an impact on filing deadlines for Ann Arbor’s local elections. The filing deadline for city council candidates will change from late June  to early May. For 2011, the deadline to file is Tuesday, May 10 at 4 p.m.

Comm/Comm: Affordable Housing

Lily Au addressed the council on the topic of affordable housing, starting by wishing them a merry Christmas. She reiterated her concerns, which she has expressed at previous meetings, that human services funds not be co-mingled among the organizations that are distributing the funds. Next year, human services funding will be decided through a coordinated effort by the city of Ann Arbor, Washtenaw County, Washtenaw United Way, the Ann Arbor Area Community Foundation, the Washtenaw Urban County. Au criticized the approximately $400,000 per unit construction cost in a recent proposal made by Avalon to demolish existing apartments at 1500 Pauline Blvd. and build a new complex. [Chronicle coverage: "Low Income Housing Project Planned"] Au complimented Margie Teall (Ward 4), who attends meetings of the Urban County as the city council’s representative to that body. Au told the council that she had a lot of poor friends, and that $400,000 could provide a lot of benefit to them. Au closed by riffing on a Christmas tune with altered lyrics to reflect conditions in a local homeless encampment: “We wish we had running water …”

Comm/Comm: Nominations

At Monday’s meeting, former city councilmember Leigh Greden was nominated to replace Jayne Miller on the board of the Ann Arbor Housing Commission. Council will vote on his appointment at an upcoming meeting.

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: Jan. 3, 2011 at 7 p.m. in the boardroom of the Washtenaw County administration building, 220 N. Main St., Ann Arbor. [confirm date]

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]

What's the relationship of the Ann Arbor Downtown Development Authority to the city of Ann Arbor? Ann Arbor DDA offices on Fifth Avenue are on the left. The new city hall building is visible behind the backhoe one block to the north. The construction work is part of the DDA's streetscape improvements for Fifth and Division streets.

At the meeting, the committees focused on the question of how the DDA might take on responsibility for enforcement of parking regulations. The DDA would like the ability to manage parking enforcement, so that it can implement an approach to enforcement that complements a demand management pricing strategy and a customer-service approach to downtown. However, the city has identified a number of ways in which it believes the DDA would be constrained in its ability to enforce parking regulations.

At Monday’s meeting, those constraints had accumulated to the point where it became a fair question: Would the DDA still find parking enforcement an attractive proposition, given the constraints? The meeting did not settle the question, with some hope maintained on the DDA side – by Sandi Smith, specifically – that the DDA might play some role in enforcement.

However, if parking enforcement is not something the DDA takes on, it’s not clear what the basis will be for the additional payments the city would like the DDA to make, beyond what is required by the current parking contract. That contract was renewed in 2005. It required a $1 million per year payment by the DDA to the city, with the provision that the city could request $2 million in any given year, and that the total amount did not exceed $10 million from 2005-2015. The city requested $2 million for the first five years, and the DDA agreed unilaterally this past May to make an additional $2 million payment to the city.

When the discussion at Monday’s meeting moved from parking enforcement – which seemed like it had been pushed to the edge, if not completely off the table – to the calculation of a formula for a DDA payment to the city, Susan Pollay, executive director of the DDA, questioned on three separate occasions: Where is the benefit to the downtown in this?

Also at the meeting, the committees got a preview of an outline sketch regarding how the DDA might play an active role in the development of city-owned downtown surface parking lots.

The committees are scheduled to meet next on Sept. 13. Their twice-monthly meeting schedule was adopted starting in July, when it became apparent that the target date of Oct. 31 for a new contract ratified by the respective bodies would not be achieved with a once-monthly schedule.

Mutually Beneficial Background

Members of the council’s committee are Margie Teall (Ward 4), Christopher Taylor (Ward 3) and Carsten Hohnke (Ward 5). Representing the DDA are board members Sandi Smith, Russ Collins, Roger Hewitt and Gary Boren. Smith is also a city councilmember, representing Ward 1.

The committees are working from a term sheet for discussion, which contains four main points. The second item, code enforcement, was eliminated early on from further discussion.

• Parking Enforcement: DDA assumes responsibility for enforcement of parking rules.
• Code Enforcement: DDA assumes responsibility for enforcement of other community standards codes (e.g., sign violations).
• Services: DDA assumes responsibility for various services in the downtown.
• Development: DDA assumes responsibility for development of city-owned downtown surface parking lots.

Most recent Chronicle coverage: “City, DDA Parking Talks Gain Tempo”

DDA Responsibility for Parking Enforcement

Carsten Hohnke had been absent from the last two meetings, so he asked to be brought up to speed, by telling the other committee members that his understanding was that significant headway was made in understanding the parking enforcement issue.

Susan Pollay, executive director of the DDA, confirmed Hohnke’s understanding by saying that she and Sue McCormick, public services area administrator for the city, had been constantly updating “the matrix” – a grid of all the points of entry into the parking system, with associated policy points and recommendations.

Parking Enforcement: No to DDA Referees

Pollay noted that they’d recognized the difficulty in assigning responsibility to the DDA for parking referees. Referees hear appeals of parking tickets. There are two reasons militating against DDA responsibility for the referees, she said. First, half of the cost for the referees is shouldered by the University of Michigan, because the university refers appeals of tickets written by UM Public Safety to the city’s process. That introduces a complication that would require UM participation in the agreement. Second, there is a “productive distance,” Pollay said, in assigning separate entities to handle enforcement and appeals. Currently that separation is maintained by the city’s assignment of enforcement to its community standards officers – who ultimately report to the chief of police – while appeals are handled through the city treasurer’s office – whose referees ultimately report to the city administrator.

All mentions of “parking referees” in the set of recommendations in the matrix are now struck through.

Parking Enforcement: No to DDA Citing Specific MVC Violations

There’s continued interest on the DDA’s part, said Pollay, in managing enforcement. There are also challenges inherent in that. For example, there are a variety of parking infractions [e.g., no parking in handicap zone without appropriate sticker] that require the enforcing entity to have a reporting relationship to the chief of police, which a potential parking enforcement subcontractor like Republic Parking does not have.

The discussion of these kind of infractions at Monday’s meeting did not come immediately with Pollay’s summary. Sue McCormick picked up the topic later, saying there are certain kinds of Michigan Vehicle Code infractions that require a police officer to write the ticket. As an example she gave handicapped parking. Sandi Smith wanted to know if it was not possible to deputize someone to perform that function. Pollay wanted to know what exactly it meant to have a “reporting relationship” with the police chief. McCormick clarified that if Republic Parking did the enforcement, then there would be no direct line of reporting.

Pollay commented that it appeared the DDA might only be able to write tickets for a couple of different kinds of infractions.

Smith observed that if someone was out writing tickets for over-the-limit infractions, it just made sense from an efficiency point of view for that person to be able to write a ticket for a handicapped parking violation. It didn’t make sense to have to call someone else or have someone else cover the same ground.

McCormick pointed out that to a certain extent there would be people covering the same ground – there would be patrols for vehicle impoundment and patrols for community standards violations. In addition, McCormick stressed, the authority to write over-the-limit tickets would not be exclusively granted to the DDA.

Pollay indicated that she would explore how other communities handled enforcement of the MVC infractions to see if there was a model that would provide for the DDA’s contractor to enforce those infractions.

Parking Enforcement: No to DDA Contractor LEIN Access

The lack of a reporting relationship to the chief of police also prevents a subcontractor like Republic Parking from getting access to the Law Enforcement Information Network (LEIN). That would prevent an enforcement officer from getting the history of infractions incurred by a specific vehicle and taking action calibrated to any previous tickets. For example, a fourth unpaid ticket is supposed to result in the towing of the vehicle.

As Sue McCormick had pointed out at the Aug. 9 meeting of the two committees, monitoring for vehicles that should be towed could be handled fairly efficiently with mobile license plate reading equipment that was paid for through a Department of Justice grant, which was accepted by the city council at their June 15, 2009 meeting. So the issue is not really so much about a general inability to enforce the four-unpaid-ticket rule. However, part of the DDA’s interest in taking responsibility for parking enforcement is based on a desire to implement a system of fines that would escalate the cost of a ticket based on prior tickets, or perhaps provide for first-time forgiveness. Without access to LEIN, such a system would not be possible.

Parking Enforcement: No to DDA Enforcement Outside District

An additional challenge is a dispute between the DDA’s legal counsel, Jerry Lax, and Mary Fales in the city attorney’s office over the question of whether the DDA could be granted the authority to enforce parking rules outside of the DDA tax district. Pollay described Lax’s argument as based on two factors: (i) the precedent of the DDA managing parking facilities outside the DDA tax district, and (ii) the latitude provide by the state enabling statute.

On Monday, McCormick identified the outside-the-district issue as leftover from the Aug. 9 meeting and suggested that what needs to happen is for the two attorneys to meet and to “duke it out.” She suggested that Lax needed to contact Fales.

Pollay responded by saying that Lax had done that and that Fales has not responded. What the DDA would like, Pollay said, is for Fales to lay out why she thinks it’s prohibited for the DDA to enforce parking rules outside of its district.

Christopher Taylor interjected that the question is not as simple as inside versus outside the DDA district, but rather it relates to corridors leading to the DDA. [Apparently, it's Fales' legal opinion that corridors leading to the DDA district, but still outside the district, might be fair game for the DDA management of parking enforcement.]

McCormick described the difference in opinion between the two attorneys as involving a fundamentally different view of the law: Lax is looking for prohibitive language and not finding any; Fales is looking for enabling language and not finding it – except perhaps for corridors.

Pollay then pointed to two occasions on which the city council had approved DDA activity outside the DDA tax district. One was the DDA renewal plan, adopted in 2003, which extended the DDA’s charter for another 30 years to 2033. It explicitly contemplates DDA activity outside the district: “In an effort to accomplish its mission, it is understood that the DDA may elect to participate in important projects outside the DDA District.”

A second set of occasions on which the city council had explicitly acknowledged the ability of the DDA to exercise responsibility outside the district, said Pollay, were the parking agreements that had included provision for the DDA to manage specific parking facilities outside the district.

Responding to the precedents cited by Pollay, McCormick said that Fales had specific views about what was unique to those circumstances that made DDA activity possible outside the tax boundary.

Pollay noted that in any case the conversation between the attorneys did not seem to be moving forward.

Parking Enforcement: No to Local Downtown Bank

A topic of conversation from a previous meeting was the idea of re-bidding the contract for processing payments for tickets, so that a local, downtown bank might do the processing. Pollay reported that Joe Morehouse, deputy director of the DDA, had done some background research, and concluded that when the RFP was issued, only two responses had been received, and of those, only one of them had arrangements with the secretary of states of all 50 states. That was a deciding factor in awarding the contract to the Complus Data Innovations Inc., a Tarrytown, N.Y.-based company, because they had the ability to pursue payment in all 50 states. That’s a consideration in a city like Ann Arbor, where a significant percentage of tickets written are to university students who leave the city after a few years.

Some limited discussion unfolded concerning the possibility that Complus might set up a lockbox in Ann Arbor, so that the perception would be conveyed that people are not paying money to an out-of-state firm.

Parking Enforcement: What Do All These Nos Mean?

After discussion of the various challenges that had emerged that are inherent in the DDA’s management of parking enforcement, Carsten Hohnke floated the idea that there might be enough constraints to make it no longer attractive to the DDA to pull parking enforcement “into its fold.”

Sandi Smith was not ready to sign on to the idea that the DDA would give up its pursuit of parking enforcement, saying that she would like to have chief of police Barnett Jones come speak to the committees about how possible communication might work between enforcement personnel contracted by the DDA and the city’s community standards officers.

Roger Hewitt, who arrived at the meeting after the various challenges to DDA enforcement of parking had been discussed in detail, wondered what the DDA was getting out of the “mutually beneficial” arrangement, if parking enforcement were eliminated from it.

Fuller Road Station

Hewitt and McCormick had a brief exchange about Fuller Road Station and how it might fit into a revised parking agreement. [The planned project is a joint city of Ann Arbor/University of Michigan parking structure and bus depot, which might eventually include a train station.] Hewitt felt like it should be included as part of the city’s parking system and covered in the agreement. McCormick saw the city’s share of the parking there simply as sufficient to meet the needs of possible future use in connection with the facility as a transit station.

Hewitt allowed that when it is first built, those parking spaces might well reflect simply a “money in, money out” proposition, but he could imagine that eventually those spaces would generate revenue. He cautioned against the creation of two separate parking authorities.

Russ Collins noted that the topic of a parking authority had arisen at previous meetings. The question, Collins said, is how to add parking enforcement to the DDA’s responsibility and have appropriate levels of cooperation between the city and the DDA.

Revenue

If the DDA were to assume responsibility for enforcement of parking regulations, then the city wants to ensure that its revenue from fines is not diminished. The other piece of the revenue equation is the DDA’s revenue currently collected from users of the parking system.

Revenue: Enforcement

One of the principles that is supposed to guide the discussion of the two committees is the idea that the city of Ann Arbor is to be “held harmless” with respect to revenue and costs if the DDA assumes responsibility for parking enforcement. Part of the equation is revenue from parking fines. At Monday’s meeting, Sue McCormick provided a chart of fine revenues broken down by violation code. Expired meter and parking-past-the-allowable-time type violations were easily the highest revenue generators, together accounting for $2.4 million in tickets owed.

Sandi Smith and Susan Pollay both quickly spotted a crucial detail in McCormick’s data set – it was a summary of July 2005 through June 2006. Said Pollay, “This data is four years old!” Smith noted that fine revenues have been declining since then. About the old data, McCormick said, “This is all I got from treasury.” [The city treasurer had given the city council a presentation in November 2009 about more recent parking fine revenues.]

Roger Hewitt wanted to know if there was a proportionate time investment in writing tickets for the top revenue-producing tickets – the answer seemed to be that it was not. Such tickets could be written more efficiently than other types of tickets.

For ballpark purposes, there was a consensus that between $1.5 and $2.5 million could be added to existing parking system revenues for purposes of determining how big a revenue pie was under discussion.

Revenue: Parking System Patrons

Pollay provided pie charts showing how the DDA parking fund revenues were distributed as expenses. For FY 2010, here’s the breakdown:

Ann Arbor DDA
Parking Fund Expenses
FY 2010

$6,337,237  (35.7%) Direct parking expense (Republic)
   441,823  ( 2.5%) Alt transit (go!pass)
 2,093,605  (11.8%) Parking maintenance transfer
 2,825,901  (15.9%) Rent to city plus street fund to city
 1,699,451  ( 9.6%) Down payment on 5th Ave. underground
 3,779,516  (21.3%) Bond payments
   563,635  ( 3.2%) DDA administration

-
Fundamentally, the fourth line is the one under discussion by the two committees.

Structure of DDA Payment to City: Mutually Beneficial?

Roger Hewitt introduced the topic of how to structure the DDA’s payment to the city. If it’s specified as a percentage of the net revenue, then it would not amount to much, no matter what the percentage is, he said.

Although she did not raise the issue on Monday, at the Aug. 9 meeting, Sue McCormick had pointed to the basic notion of the city being held harmless and left “whole” as a result of the agreement, which underpinned the entire conversation. A percentage as opposed to a specified sum, she’d said on that occasion, did not leave her feeling “warm and fuzzy about being whole.”

Mutually Beneficial: Rewind to Aug. 9 Meeting

Also on Aug. 9, Collins had also pointed out there’d been an agreement that the DDA would pay $1 million a year to the city. [Collins was alluding to the 2005 parking agreement, which stipulated $1 million per year, or an option for the city to take $2 million in any given year provided that the total amount over 10 years, from 2005-2015 did not exceed $10 million.]

The agreement was “practically invalidated” said Collins, so it’s not really a hold harmless situation. Rather, it’s how the DDA and the city, with the best interest of the citizens in mind, benefits everybody to the best of their ability. The $10 million was paid in five years, Collins said. Because of the city’s dire financial situation, the DDA had paid another $2 million [in May 2010]. So what the DDA is looking to do, said Collins, is find a way to rationalize that kind of payment to the city annually. At the same time, he said, they were looking for a way to benefit the city, the DDA and citizens by changing the way that parking enforcement is done.

As far as “hold harmless,” Collins said, they had a situation where there is a contract and the DDA has now paid an extra $2 million more than required by that contract. They wanted to do the right thing by the city and by the DDA, but mostly they wanted to do right by the citizens by making the right decisions “in these complicated times,” Collins said. Whatever the mechanism of arriving at the price, he said, it had to be in the spirit of doing the right thing for the citizens. That’s what mutually beneficial means, he concluded.

Gary Boren followed up by saying that before the $2 million was discussed, they already knew that revenues due to fines [collected by the city] would be decreasing and revenues due to compliance [fees paid to park, collected by the DDA] would be increasing. That trend was due to various parking technologies. For that reason, Boren said, it didn’t make sense to think in terms of holding harmless with respect to profit levels at any particular point in time.

Collins then returned to the theme of whose interest they were working for – citizens and the community. He spoke of the disconnect between the nature of the dialog and the nature of the press coverage and the nature of merchant organizations’ response to all of this on the one hand, and a DDA board that he felt was trying to work in the best interests of the community on the other hand.

By doing that, he said, the DDA board was “getting hammered” on all sides: by merchants who think the DDA is trying to “screw their customers;” by the city which needs funds; by themselves due to internal political conflicts within the board. It feels like the DDA is trying to do a good thing for the city, but they’re not getting the “attaboys” for trying, he said. Instead, the reaction from the community was “You guys are all nuts!” Either the DDA was nuts, he said, because the DDA had a contract – why didn’t they just insist that it be adhered to? Or the merchants think the DDA is nuts, he said, because they say they don’t “need this stuff anyway.” In this city, “no” is the easiest thing to say, Collins said, and the DDA is trying to say “yes.”

Mutually Beneficial: Fast Forward Return to Aug. 23

On Monday, Smith identified the expenses the DDA would incur for writing tickets as an unknown that would need to be balanced against the $1.5-$2.5 million in ticket revenue from fines.

At that point, Pollay noted that the discussion had already moved to a calculation for a payment, when the whole nature of the mutually beneficial arrangement appeared to be in question. If the DDA were not to take responsibility for parking enforcement, she said, she asked if the city had any suggestions for a mutually beneficial arrangement on which a payment could be based.

Carsten Hohnke pointed to the history of the development of the term sheet as reflective of the city’s position. He did not, he said, have anything in his “back pocket.”

Hewitt forged ahead with the discussion of the payment mechanism, saying that he was in favor of looking at gross revenue and determining some percentage of that. Smith suggested that it might be truer to the theory of “paying rent” if the formula involved a dollar figure per parking space. That would build in a specific ramification for the removal of spaces from the system’s inventory. [The removal of spaces from the system by the city without appropriate accommodation in the parking agreement has been a point of friction with the DDA.]

Pollay returned to her previous point, this time a bit more forcefully: “Where is the benefit to downtown?” she asked. She said she’d heard the calculation, but not the mutually beneficial part.

Collins observed that the two committees were trying to figure out the cost of a parking authority. It would be easier, he said, if the parking authority were not a part of the DDA.

Hewitt said he wanted a structure where the city council is a partner in the system. What he saw, he said, was continuing pressure from the city to get more and more money out of the parking system. That had been the case, Hewitt said, ever since he’d been on the DDA board.

Collins suggested that part of the pressure for more money could be addressed with the contract they were re-negotiating. He suggested that neither the city nor the DDA had been serious about the agreement as a contract.

[This was apparently a reference to the city's failure to adhere to certain terms of the contract, like the DDA's authority to manage "the" parking system in the city, which seems counter to the city's decision to install its own parking meters outside the DDA district. On the DDA's side, it decided not to cite the contract to challenge formally that city decision, in light of the difficult economic times. At a July committee meeting, Hohnke had attributed the city's actions to "institutional amnesia."]

The pressure from the city for more revenue, said Collins, was attributable to the down economy. Hewitt did not completely agree with Collins, saying there had been a lot of pressure from the city five years earlier as well. Collins identified the key issue as trying to understand the value of the parking system.

Picking up on Hewitt’s comments about five years ago, Smith said that five years ago, the city’s financial situation had been presented as dire, due to the “building located diagonally across from us” – an allusion to the police-courts facility, which is nearing the end of its construction and is visible from the DDA board room window, on the other side of Fifth Avenue, one block north. Now the dire situation, she said, is due to the general fund.

Collins said that no organization of any description ever felt like it had enough money.

Christopher Taylor sought to move the discussion back on the track of the payment by noting that the committees agreed on the broad principle of holding the city harmless and of charging the DDA with as much responsibility as possible for parking enforcement. He asked if the next step would be to come up with a formula.

Pollay returned again to her question: How does it benefit the downtown? The goal of the term sheet, she said, had been to establish a mutually beneficial arrangement. However, she said that from the city, with respect to parking enforcement, they’d heard “no, no, no, no” during the committee discussions. She concluded by saying she is still trying to understand how the calculation benefits the downtown.

Hohnke allowed that if parking enforcement is taken off the table, the committees need to talk about what else they might do and to look for “other opportunities for synergy.”

Sue McCormick cautioned that her understanding of the parking enforcement proposal had not been that it was to be “all or nothing.” There is nothing that prohibits the city from going back to look at the “flavor” of how parking is enforced. Even if it’s left out of the discussion of the parking agreement, she said, there are policy decisions about how parking is enforced that can be examined.

Collins stated that what is mutually beneficial is an important issue. He suggested that the city might be responding to the DDA by suggesting there is another way to implement the desired DDA parking enforcement policies other than having the DDA manage enforcement. Perhaps it would turn out that the DDA has input on how existing service is executed.

DDA Does Development

Hewitt drew a parallel between Collins’ concluding sentiments about the DDA having input on an existing mechanism by transitioning to the fourth key point on the term sheet – the DDA having an active role in the development of city-owned surface parking lots downtown.

Collins noted that he knew there is one DDA board member who’d be happy to see parking enforcement taken off the table and to use the purchase of land, which the DDA would then develop, as a mechanism for the DDA to make payments to the city. Collins was alluding to Newcombe Clark. From previous Chronicle coverage “Possible Topic: Should the DDA Develop City-Owned Land“:

The DDA could have said, “Here’s $2 million and we’ll buy two lots,” or one lot – like the Palio’s lot at William and Main, suggested Clark. [The parcel currently serves as a surface parking lot.] Even though the DDA had elected not to do that, and instead decided to renegotiate the parking agreement, Clark said he thought that land purchase was still worth exploring.

Hewitt acknowledged that a land-purchase type approach is another way it could be done, then quipped that the city could simply give the DDA the Kline’s lot, which the DDA had bought in the first place.

DDA Development: Pollay’s Outline

As part of the timeline for the two committees’ summer work plan, Pollay is to deliver a plan for what it would mean for the DDA to take an active role in the development of city-owned surface parking lots. She’s due to present that at the committees’ Sept. 13 meeting. On Monday, she handed around a one-sheet double-sided sketch of an outline for what she was working on.

The outline includes a chunk devoted to visioning with multiple and various parties and the public to develop a comprehensive strategy for downtown. The idea is not to start from scratch, but rather to build on work that the community has done for the last five years.

She cautioned against the idea of “master planning by RFP” for a particular site. When there’s a comprehensive strategy in place – as opposed to the “piecemeal” approach that has been taken previously – then it makes sense to begin talking about a request for proposals (RFP) for some specific site that’s been prioritized, she said.

The process for an RFP for the first site includes drafting of the RFP by the DDA, with revision by a professional consultant who would oversee distribution of the RFP to potentially interested parties. An advisory committee to review the responses to the RFP would be selected by the DDA, with members appointed based on strategic strengths – like project financing experience. The advisory committee would move the project through a process of reviewing the responses, interviewing the proposers, and making a recommendation to the DDA. On approval by the DDA board, the recommendation would be forwarded to the Ann Arbor city council. The city council would either approve the project or give some other direction. If the outcome were approval, the DDA, with the aid of a consultant, would do the negotiations with the developer on a specific agreement and forward the plan to the city council for approval.

The idea, said Pollay, was to put the DDA at the “edge of the sword” so that her organization would “take the heat” from the community.

Taylor said he agreed with the “march towards expertise” that Pollay had outlined for the advisory committee membership. However, he cautioned that this kind of expertise should be added to, rather than replace, the kind of participation that has been typical for such committees.

Next Meeting: Sept. 13

As the meeting concluded, Carsten Hohnke wanted to get an idea of what the agenda for the Sept. 13 meeting would be like. At least three points will be covered:

• How are Michigan Vehicle Code infractions handled in other communties?
• What are meter revenues like for the newly-installed city meters outside the DDA district?
• What does “active role” for the DDA mean in development of downtown city-owned surface parking lots?