The ordinance revisions were postponed until the council’s first meeting in May – on May 6.

According to the resolution approved by the council, the purpose of postponing a decision on the ordinance amendment and extending the moratorium was to allow for additional time to review the proposed amendments and to “gather input from the public and interested parties, and to promote the public health, safety, and welfare of city residents.”

If enacted, the changes would mean that a limited type of digital signs would be allowed in the city. But the effect of the proposed ordinance changes would be that no billboards would be permitted – although the existing 28 billboards in the city would be allowed to remain as non-conforming signs. Existing billboards would not be allowed to be retrofitted for digital displays. The council had given initial approval of the changes at its March 18, 2013 meeting. [.pdf of proposed outdoor advertising ordinance]

Billboards on West Liberty Street at First, near the edge of downtown Ann Arbor, looking east. (Photo illustration by The Chronicle.)

Under the proposed ordinance changes, new billboards – signs with an area greater than 200 square feet – could not be constructed. And existing signs of that size could not have electronic features added to allow for changeable text or images.

The existing sign ordinance does not allow for any changeable text, except for “noncommercial information which requires periodic change” – like time and temperature. So the proposed changes to the ordinance would allow for changeable portions of a sign, subject to the limitation that the changeable portion of the sign not be more than half the area of any sign and no more than 30 square feet per sign and 15 square feet per sign face. Additional limitations would prevent flashing and scrolling – by not allowing changes to content more often than 15 minutes. The proposed ordinance language states:

Changeable copy shall not and shall not appear to flash, undulate, pulse, blink, expand, contract, bounce, rotate, spin, twist, or otherwise move.

The proposed ordinance restrictions on dynamic elements of signs were motivated in part – based on remarks of city planning manager Wendy Rampson at the council’s March 18 meeting – by the perception that these elements are a distraction to motorists. That argument has been countered by Adams Outdoor Advertising in written communication to the city by citing studies that conclude any distraction does not cause a greater rate of traffic accidents.

The proposed ordinance changes would place a maximum brightness of any illuminated sign, including those that are digital/electronic: 5,000 nits during the day and 100 nits at night, and in no case greater than 0.1 foot-candles above the already existing amount of light at a residential property line. One nit is defined as one candela per square meter. A candela is about the amount of light produced by a common tallow candle.

By way of comparison, an iPhone 5 display is reported to have a brightness of about 500 nits.

The moratorium on digital signs was first enacted for 180 days at the council’s April 17, 2012 meeting. And the city council had extended the moratorium for an additional 180 days at its Oct. 1, 2012 meeting.

Falling under the moratorium are “billboards commonly referred to as ‘electronic message centers,’ ‘electronic message boards,’ ‘changeable electronic variable message signs,’ or any billboard containing LEDs, LCDs, plasma displays, or any similar technology to project an illuminated image that can be caused to move or change, or to appear to move or change, by a method other than physically removing and replacing the sign or its components, including by digital or electronic input.”

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

Images for the proposed 413 E. Huron project, at the northeast corner of Huron and Division. On the left is the original rendering considered by the planning commission. On the right is an updated version presented to the city council on March 18, 2013. Even more revisions could be presented at the April 1 council meeting.

The council decided to conduct a review of D1 zoning, without imposing a moratorium. But councilmembers left some work on that issue until April 1, when the review’s clear scope of work and timeline are expected to be set.

The lack of any moratorium cleared the way to consider the 413 E. Huron project. Even though councilmembers deliberated in a fair amount of detail on the project, they still had a number of questions they wanted to pursue with the developer. So the council decided to postpone the item until April 1.

The council’s discussion of the 413 E. Huron project included a fine-grained examination of the project’s compliance with zoning code regarding the disturbance of natural features – trees in particular. It was punctuated by a resident shouting “You lie!” as the developer’s representative – Conor McNally of Atlanta-based Carter – responded to questions from councilmembers.

According to a letter sent by the developer to the council on March 29, councilmembers continued to submit additional questions in writing through March 28. That led to a request from the developer to remove the item from the April 1 agenda in favor of April 15, to allow for time to respond to questions. The developer is also hoping to revise 3D renderings to show changes in the building that have been made since March 18.

The developer’s request to pull the item from the agenda can’t be accommodated – because the council voted to postpone until a date certain, which means the item will need to appear on that April 1 agenda. To remove it would require a decision of the council, and that can’t be done administratively at the direction of the planning staff or on the initiative of the city clerk.

So the item will appear on the agenda, although the council may be inclined to make their deliberations brief, if their intent is to postpone it until April 15 – which would be consistent with the developer’s expressed preference. The public hearing on the site plan appears on the April 1 agenda as well, although it was declared closed by mayor John Hieftje on March 18.

This report includes a summary of public commentary and council deliberations on the moratorium and the 413 E. Huron site plan from March 18. A write-up of other agenda items is included in Part 1 of the March 18, 2013 meeting report.

Public Comment

Counting the public comment reserved time at the start of the meeting and the public hearing on the 413 E. Huron site plan, at least 39 people addressed the council. Some spoke during reserved time as well as at the public hearing. This report organizes all of the comments thematically.

Public Comment: Whose City? How to Get Along?

Frequent public commenter Thomas Partridge characterized the conflict as one between long-term residents and out-of-town developers, who were here to use their money and influence. He harkened back to the era of Perry Bullard, and asked that no projects go forward without a requirement that development give priority to affordable housing that is integrated economically, socially, financially and racially.

Peter Eckstein ventured that the neighbors on Huron Street have spent millions of dollars acquiring and maintaining their historic properties. He doesn’t have a single dollar invested in that neighborhood – he lives 2.5 miles away, he told the council. But he described how “This neighborhood is part of my backyard, too.” He told the council that the out-of-town developers only want to build more student housing. He contended that students don’t add to density. Building student housing in this location, he warned, would begin to transform the Main Street area into the same kind of student district that currently exists in the South University area. He described South University as an area with pizza parlors and a safe-sex shop.

Rita Mitchell echoed Eckstein’s sentiments about the neighborhood of 413 E. Huron: “This is my backyard,” she said. She lives in Ann Arbor and crosses through the area frequently. She appreciates how the historic district contributes to the character of Ann Arbor. She encouraged the council to enact the moratorium.

Betsy Price told the council that it’s another development that is “simply wrong.” She said it was not a case of NIMBY (not in my backyard) but rather of NIABY (not in anyone’s backyard).

Sloan Plaza resident Linda Binkow told the council that she’d moved to Ann Arbor seven years ago because Ann Arbor offered an attractive life. She cautioned that the future student residents of 413 E. Huron, for whom the council was willing to “destroy our lives,” won’t remain in Ann Arbor to support the city.

Offering a contrasting view on the idea that 413 E. Huron was a backyard for anyone but the owner, Bruce Thomson told the council that the property is not the community’s resource. Thomson was the previous owner of the land. Nobody else but the owner had paid the taxes or scraped to keep the property through bad economic times, he said. In America, he said, if you want to control property, you buy it. He called it unreasonable for someone to purchase residential property adjacent to a densely zoned property [which predated the D1 zoning] and then to expect that the zoning be changed.

Scott Reed told the council that opponents of 413 E. Huron want people to believe they represent a grassroots movement, rising up against a greedy outside developer. But Reed called the group “local slumlords and their cronies,” who cynically manipulate council procedures and historical regulations to “box out competitors.” He told councilmembers that ordinary people who are not wealthy enough to own “crown jewel” historic properties did not care about the economic fortunes of slumlords. Ordinary people wanted a livable, walkable, affordable and dense downtown. He encouraged the council to approve 413 E. Huron.

Alluding to Reed’s comments, John Floyd introduced himself jokingly as a “money-grubbing slumlord.” He ventured that if the property had been zoned D2, everyone one would be home filling out their NCAA basketball tournament brackets. He continued with his lighthearted approach by saying that while some have praised The Varsity for helping to make Ann Arbor pedestrian friendly, he contended that The Varsity had instead made Ann Arbor friendly to a pedestrian building style.

On a more serious note, Floyd ventured that we should interact with each other in a way that is different from a frontier society, where you have the option to go live the way you want to as long as you can’t see the smoke of your neighbor’s fire. Unlike a frontier society, he said, in a civilized place, we have to learn to interact with those around us in a mutually agreeable way. That doesn’t mean you get to exercise those rights without regard to the impact on those around you, he concluded.

Jeff Crockett ventured that not every developer has a negative experience with the approval process. And he attributed that to a more cooperative approach they’d taken. As examples he gave a project at 544 Detroit St., Kerrytown Place, 624 Church St. and 618 S. Main. He felt that to the extent that Ann Arbor might be “radioactive” to development, he felt that most of the radioactivity was emanating from the 413 E. Huron St. project.

Public Comment: Legal Arguments

Attorneys for the developer, Susan Friedlaender and Pat Lennon, both addressed the council on behalf of their client. Friedlaender said that the D1 zoning had not been “experimental” but rather returned to the roots of the earliest zoning ordinances. The D1 zoning could be reviewed without imposing a moratorium, she said. She told the council that a moratorium was more likely to be invalidated if it came after the planning process [like A2D2] was done.

Susan Friedlaender, attorney for the developer of 413 E. Huron.

Lennon cited the state’s zoning enabling act, which states that a site plan shall be approved if it complies with the zoning requirements. He questioned whether those planning commissioners who voted against the project had done so with a proper basis. He contended that the project would bring $1.4 million per year in tax revenue. His client’s rights are apparent, and the legal positions have been laid out, he said. His client had relied on the zoning in pursing the project and had followed and met all the requirements.

Hugh Sonk spoke in favor of imposing the moratorium. He contended that a moratorium or a change in the zoning won’t make sites unbuildable, but it might shape development so that it won’t harm neighboring historic properties. He told the council that the developer is trying to scare them with the threat of a lawsuit. He encouraged the council not to give way to threats or intimidation.

Norm Hyman told the council it’s clear under Michigan law that no case has awarded damages for a moratorium of any kind. None of the cases that had been described in what Hyman described as a “scurrilous” piece of literature that had been circulated in the community had involved a moratorium. He also noted that all three of the cases were decisions of a lower court, not a court of appeals, which meant that they are not the law of the state of Michigan. He told the council those cases are being used as a scare tactic.

Gary Suptanich told the council that he is an appellate attorney. He asked councilmembers to support the moratorium. He told them it was well-settled law that land use regulations are an acceptable use of governmental power. He reminded the council of the 601 S. Forest project, which he and others had gathered to oppose – and that had prevented a permanent eyesore. [That project did go forward, but was dramatically shorter than originally proposed. It's now called The Landmark.] He asked the council not to be intimidated by the developer’s legal bluster.

Introducing himself as a “townie lawyer” was Ben Muth, who wanted some reasonableness to be injected into the situation. At the end of the day, he said, it’s the city’s fault. It’s easy to vilify, but the developer had followed the rules. Now the city either had to “take its medicine” by allowing the project to proceed or by providing some compensation. He felt that a creative solution could be found.

Public Comment: Historic Districts

Several people focused on the fact that the property at 413 E. Huron sits immediately south of three historic districts.

The owner of the property immediately to the north of the project, Steve Bellock, described his 11-unit building as an affordable apartment house, designated as historically significant. He showed the council a poster with an image from Google Earth, illustrating how shade from the 413 E. Huron building will impact his property. He also complained about the potential negative impact of the new building on a 24-inch black walnut tree.

Three members of the city’s historic district commission addressed the council – Ellen Ramsburgh, John Beeson, and Tom Stulberg. The commission had passed a resolution in favor of the moratorium. They noted that historic districts were not static, and that changes, renovation, and construction are possible in historic districts. They encouraged the council to take Chapter 103 of the city code seriously. They called for more a gradual transitions between historic districts and D1 zoned areas.

Introducing herself as a member of the historic district study committee that had recommended establishing the Ann Street historic district, Eleanor Pollack contended that there’s a community value that new development has to be respectful of residential neighborhoods – even if that has not been codified.

Beverly Strassmann told the council they might remember her from the battles over a historic district in the Germantown neighborhood – on Fourth and Fifth avenues south of William. She was there in solidarity with those whose homes are threatened by the new building.

Ted Ligibel described a 40-year career in historic preservation, appearing as an advocate for historic districts. He pointed out that the immediate area of the 413 E. Huron project is the intersection of several historic districts – Division Street, Ann Street, and the Old Fourth Ward.

Introducing herself as the president of the Old Fourth Ward Association was Christine Crockett. She told the council the historic district deserved protection. She cited the old trees on the properties to the north of 413 E. Huron. Responding to another speaker’s derisive use of the term “crown jewel,” Crockett said that she’d preserved her house on a teacher’s salary.

Ellen Thackery, field representative for the Michigan Historic Preservation Network and the National Trust for Historic Preservation, urged the council to reject the site plan.

Finishing all the public commentary for the evening was Cappy Bilakos, who described herself as coming from a family of developers. She’d served on the historic district study committee for the Old Fourth Ward historic district – even though she did not believe in full historical preservation. She encouraged the developer to produce a building that everyone can be proud of.

Public Comment: Construction Industry

Ronnie Malcolm, president of Laborers Local Union 499, spoke up for the construction industry – in part by responding to Steve Bellock’s characterization of his property in a historic neighborhood as a “crown jewel.” “My house is a jewel to me,” Malcolm said, and would be a legacy for his son, even though it’s not in an historic district. Every time a project is turned down, it’s a lost opportunity for construction workers, he said. He described himself as in the “evening of life,” saying his window of opportunity is getting small. He appreciated that an “out-of-town” developer would pick a local construction firm.

Ron Motsinger, assistant business manager for IBEW Local 252, told the council he was representing the interests of all the trades. He called O’Neal Construction, who’d been hired for the job, one of the top construction managers in the county. He described the unemployment level in the trades right now as 40%. He encouraged the council to approve the project – because it meets the requirements of the zoning and would bring economic benefits to the city.

Offering a contrasting view on the construction industry was Mark Koroi. He questioned whether the workers hired to work on the project would be drawn from Ann Arbor’s labor pool, or rather from that of the greater Detroit metropolitan area. He also implicitly questioned Ron Motsinger’s description of 40% unemployment, by citing his experience growing up with a father who worked as a sheet metal worker and who was unemployed 3-4 months a year, due to the cyclical and seasonal nature of construction work. He described how construction workers could earn $60-70,000 annually working only six months of the year.

Public Comment: Architecture, Urban Planning

Conor McNally – chief development officer with Carter, the project’s lead developer – described how the team had been working very hard for the last nine months. After submitting the first drawings, they’d had extensive conversations with the city’s design review board, neighbors, residents, and the planning commission. A number of substantial changes had been made to the building, he said, noting that it had evolved consistently over time. McNally felt the team had done their work thoughtfully and diligently. He noted that planning staff had recommended approval of the project. A majority of planning commissioners had also recommended approval of the site plan, he noted, but it had not achieved the six votes it needed to receive a recommendation from the planning commission.

The point about the recommendation was noted subsequently by Barbara Hall, who seemed to have understood McNally’s description of the planning staff recommendation for approval as a claim that the planning commission had also recommended the project be approved, which it had not.

Former Ann Arbor planning commissioner Ethel Potts.

An architect on the project, Carl Hueter, told the council he’d practiced architecture for 40 years in the city. He noted that the design guidelines are voluntary criteria, which are superseded by the zoning ordinance requirements. The character overlay district that includes 413 E. Huron acknowledges the significant variation in the massing and scale of the area.

Numerous modifications to the design had been made, he said. Among those modifications was a clearer articulation of the upper story, and a reinforcement of the vertical elements – so that the building doesn’t seem to be a single mass. Density had also been removed from the top of the building and the corners had been “eroded,” he explained. His remarks were interrupted with shouts of “irrelevant” from a woman in the audience, which ultimately caused mayor John Hieftje to admonish her: “Ma’am, we try to maintain the decorum of our meetings.”

Former city planning commissioner Ethel Potts contended that the proposed design does not meet the setback requirements.

Doug Kelbaugh, a professor of architecture and urban planning at the University of Michigan, contended that The Varsity on East Washington and the proposed 413 E. Huron project made it abundantly clear how overpowering the D1 zoning designation can be for the adjoining neighborhoods. Responding to the contention that the proposed building will be seen “in the round,” which is consistent with the design guidelines, he attributed that only to the fact that it juts out into the street. Huron Street would not be the same experience after the project is build – either walking or “through the windshield.”

Kelbaugh warned that the build would be a “looming reminder” that rhetoric can trump common sense.

Norman Tyler, who owns the parcel two doors north of the proposed building site, showed the council drawings he’d developed with Google Sketchup to illustrate the kind of development that might be possible under D1 zoning. He also recited some of the history of the decision to apply D1 (downtown core) zoning to the area, instead of D2 (interface).

Rendering by Norman Tyler in Google Sketchup depicting the kind of buildings that would be possible under current D1 zoning.

Alluding to Scott Reed’s characterization of the controversy about the project, Steve Kaplan cheerfully introduced himself as a “greedy slumlord” and 46-year resident of the city of Ann Arbor. He contrasted the density of the 413 E. Huron project with a project built several years ago – Ashley Mews, with which he’d been involved. He described the square footage of Ashley Mews as about 112,000 square feet on just under two acres. By contrast, 413 E. Huron proposed 272,000 square feet on 0.8 acres. The 413 E. Huron project is not just dense, he told the council, it’s “absurdly dense.”

Liz Knibbe told the council it’s not a question of density but rather re-learning how to build cities. After WWII a lot of energy had been put into building suburbs and we got very good at that, she said. But we weren’t as good at re-building cities. She pointed to the Old West Side historic district as an example of an effective response to the kind of development that was attempted in the area.

Stephan Trendov expressed some frustration with the dilemma of needing additional residential units in the downtown area. The city wants good developers to come in, he said, but we don’t want developers to find weak spots in the city’s zoning.

David Olson told the council he’d recently moved back to Ann Arbor a year and a half ago after being away for 25 years. Ann Arbor now looks very much the same, but there have been a lot of changes. Good change and good development mean different things to different people. He was happy to learn about the great amount of time and effort that had gone into creating the design guidelines – which he thought were fantastic. But he felt that 413 E. Huron flies in the face of the guidelines, because it’s juxtaposed against a residential neighborhood and an historic district. He called the area part of the heart and soul of the city. It’s the “wrong building in the wrong spot,” he said.

Public Comment: Thank You

Peter Nagourney told the council he wasn’t planning to speak. But he thanked the council for dealing with the issue, noting they’d received well-thought-out statements on all sides. He told them they’re not getting paid enough to do this, but he asked the council to think about the project’s long-term impact.

Alan Haber also thanked the council for dealing with this question. He told councilmembers that they have the opportunity to revisit the zoning by imposing the moratorium He’d hoped that the developers would meet with the community, but that didn’t seem to happen.

Public Hearing: Closed

At the conclusion of the public hearing, mayor John Hieftje declared it closed.

D1 Review

The council was asked to consider a resolution it had postponed from its Feb. 19, 2013 and March 4, 2013 meetings, which would enact a six-month moratorium on the acceptance of new site plans for downtown Ann Arbor developments.

Ann Arbor zoning. Darker red areas are zoned D1. Lighter brownish areas are zoned D2.

The resolution gave specific direction to the planning commission during the moratorium to review the D1 zoning code and to make recommendations to the city council on possible revisions to the code.

D1: Council Deliberations – General

Sabra Briere (Ward 1) began the deliberations by saying that the members of council had heard more than enough about the concept of a moratorium, so she did not want to belabor any of those points. She did want to talk briefly about zoning in the D1 area. One of the concerns she had heard is that nobody had voiced a concern about the D1 zoning area until recently. She contended that she had started pointing out the need to review the zoning over a year ago. She had brought this subject up to members of the city attorney’s office, and she discussed it with other members of the city council as well as with members of the public, she said.

Briere had observed that for some projects presented to the council since the A2D2 zoning was enacted in 2009, in order for the community and for the developer to agree to them, it was necessary for the developer to present the council with a “planned project.”

By way of background, a planned project can vary from the zoning in limited ways – with respect to setback and height – but is not a rezoning of the parcel as is the case with a planned unit development (PUD). Two projects fitting the description Briere gave were The Varsity and 618 S. Main. The Varsity, which is under construction on East Washington, was a planned project for D1 because of the entryway plaza. The 618 S. Main project was a planned project for D2 because of its height. Construction has not yet started on that residential development.

She was not opposed to planned projects per se, Briere said. But she pointed out that the A2D2 zoning was brand-new zoning that the community had worked hard to put in place, so that it would be pretty straightforward for everybody who was looking to build a new structure in the downtown. Briere alluded to two projects that could not meet at least one of the zoning regulations – setback or height. To her, this indicated that there was a problem with the downtown zoning. It indicated that the community really had not thought through all the permutations, to meet the community needs and the needs of the developer. She said she put the community’s needs ahead of those of the developer – because “we are here, and developers may not be here in the future.”

Paramount to Briere was that during a review period, the council would actually look at the downtown zoning to make sure that the zoning regulations contain exactly what the community wants. She also called for review of the by-right premiums for development – incentives to do things – to make sure they meet the community’s needs. [For example, a new D1 building can have 400% floor area ratio (FAR) by-right, but can achieve as much as 700% FAR by-right if the use is residential, and up to 900% if the residential use meets standards for affordability.] In order to do the review effectively, Briere felt that development should be paused for a little while. And that is why she had offered a moratorium as an option.

Given that the council is contemplating a short turnaround response from planning staff and the planning commission, Briere felt an actual break should be taken from having new projects considered by the city council. Briere said she was skeptical that if developers were aware that the council was looking at rezoning parts of the city, that they would be cautious about what proposals they brought forward. She based that view on the her perception that during the A2D2 process to redesign the downtown zoning, she had seen no evidence that developers were hesitant to bring forward planned unit development (PUDs) in the downtown. Having seen that developers were quite willing to go forward with projects, when they were not certain what the final zoning would look like, it seemed to Briere that “people are people no matter when you do it.”

So Briere encouraged her colleagues to look at both issues – the need for a pause and the need to review the zoning.

From left: Ward 1 councilmembers Sumi Kailasapathy and Sabra Briere.

Mike Anglin (Ward 5) noted that the council had a history of looking at projects and discussing them a great deal. He also recalled that a moratorium had been proposed earlier on R4C zoning districts in connection with an effort to establish the Germantown historic district. [By way of background, no historic district was established on Fourth and Fifth avenues south of William Street, although a moratorium on work in the study area as enacted in 2009 for the period of study. A proposed moratorium on R4C zoning districts in general was voted down by the council.]

The council’s obligation is to listen to the economic pulse of the town and also listen to the people who pay the bills and will continue to pay the bills, Anglin said. He drew an analogy to listening to a foreign language. You might understand one word, he said, and because of that word you think you know the meaning of the whole sentence, even when you don’t.

Anglin noted that when the council had approved the A2D2 zoning, they had agreed that they would review it in the future. So it was clear at the time that the council did not feel it had done a perfect job with the A2D2 zoning. He pointed out that the R4C study is still not done. He supported a moratorium so that the city could ensure that the projects brought forward in the future would serve the city well.

Stephen Kunselman (Ward 3) described it as a difficult agenda item because the city has been dealing with development issues for many years. He had voted against the A2D2 zoning because he’d thought it was too simplistic, with its D1 and D2 areas. Previously, it had been more of a mosaic, he said. The problem with a simplistic zoning ordinance is that “one size does not fit all,” he said. To him it made no sense to have a 180-foot height limit across all of D1. That made no sense from an urban design standpoint, he said. He noted that he got his urban planning training at the University of Michigan. For him to watch the change in the city he grew up in was heart-wrenching, he said. He was not sure how he’d vote. But he didn’t want to gamble with other people’s money.

Picking up on Anglin’s mention of the long effort to revise the R4C zoning, Kunselman indicated that he’d made clear he’d support a limitation on the size of parcels that could result from combinations. But that effort was still delayed as it continues to be considered by the planning commission. [The planning commission's ordinance revisions committee is developing draft recommendations for R4C/R2A zoning districts. For background on that project, see Chronicle coverage: "Effort to Overhaul R4C Zoning Continues."]

Kunselman concluded by indicating he wanted to see some effort to review D1 zoning – and whether a moratorium is a suitable tool was a tough decision.

Carol Rosati, co-author of “Michigan Zoning, Planning and Land Use,” talked with Jane Lumm (Ward 2) after the city council’s March 11 closed session.

Christopher Taylor (Ward 3) said a lot of the sentiments that had been expressed at public comment and the public hearing resonate very strongly with him. However, by considering a moratorium, Taylor said, the council has engaged a very serious question with consequences for the 413 E. Huron developers and for the city as a whole. After listening to the city’s own legal staff and the outside counsel recommended by the community, he’d concluded that voting for the moratorium would amount to a violation of his duty as a councilmember.

[The outside counsel to whom Taylor referred was Carol Rosati, co-author of "Michigan Zoning, Planning and Land Use." She had joined the council in a special closed session held on March 11, 2013.]

The benefit to having a moratorium, Taylor said, was to have a chance to re-evaluate the D1 zoning. But he didn’t mind if the next developer comes in with a measure of uncertainty. He still thought the city could continue to move forward, if no moratorium is in place. The fact that a review process is ongoing will tell developers that the situation is uncertain, he said.

Taylor then offered amendments to the resolution before the council. The deletions and the additions ended up being treated separately by the council [additions are indicated with italics; deletions are indicated with strike-throughs]:

Resolved, That the City Council directs the Planning Commission to review recently approved and recommended site plans in the D1 zoning district to determine whether these zoning standards provide clear, understandable requirements regarding both form and use and at the same time conform to and carry out the goals of the City’s Master Plan, Downtown Plan and Character Overlay Districts;

Resolved, That the Planning Commission is directed to complete this evaluation and make recommendations to the City Council regarding any possible changes to the D1 zoning districts on or before June 4, 2013, and that the City Council will take action on those recommendations on or before August 19, 2013, and

Resolved, that city council requests that this review specifically address three issues:

i. Whether D1 zoning districts are appropriately located in relationship to historic districts on East Huron and South Main.
ii. Whether the city’s character overlay districts associated with D1 zoning have appropriate massing, setback, and height requirements to carry out the goals of the city’s master plans
iii. Whether the city’s development residential premiums effectively encourage a diverse downtown population.

Resolved, That the City Council hereby imposes a temporary moratorium on all new site plan petitions in the D1 zoning district, and that all petitions for site plan approval in D1 will be deferred for a maximum period of 180 days from the date of this resolution in conjunction with the study and revision of the zoning ordinances pertaining to these districts, with the following exceptions:

• Petitions recommended for approval by the planning commission, but not considered by the city council prior to February 19, 2013
• Any development, redevelopment or building permits for projects that do not require an approved site plan
• Any administrative amendments to site plans
• Any applications or permits which involve routine repair and maintenance for an existing permitted use

Resolved, That any aggrieved petitioner or applicant shall be entitled to receive a hearing by the City Council to show that the temporary moratorium imposed in this resolution will result in the preclusion of all viable economic use of their property, or will otherwise violate applicable provisions of State or Federal law, and if the City Council finds that an aggrieved petitioner or applicant makes such a showing, the City Council may grant relief from the moratorium to the degree necessary to cure the violation.

Taylor indicated that the proposed changes give the council a chance to reflect on the D1 zoning. It provides clear direction to the planning commission and comports with his fiduciary responsibility by reducing a substantial risk to the city, Taylor said.

Marcia Higgins (Ward 4) told Taylor she appreciated the amendments, but they struck her as “off the cuff and on the fly,” noting that she’d received the amendments just then via email at 10:48 p.m.

From left: Sally Petersen (Ward 2) and Marcia Higgins (Ward 4).

She was not sure that his amendments captured everything that she wanted to review. And she felt it’s time for some stability. Mayor John Hieftje suggested that the amendments might be divided up – which is eventually what the council decided to do. But other councilmembers weighed in on the amendments as a whole before that happened.

Margie Teall (Ward 4) echoed Taylor’s remarks about fiduciary responsibility. She supported the amendments.

Chuck Warpehoski (Ward 5) identified three distinct issues: (1) Should D1 zoning be reviewed? (2) Should there be a moratorium on projects in D1 zoning districts? (3) Should the moratorium include projects already proposed?

Warpehoski said he wanted to see buildings constructed that are worthy of the community. He supported a moratorium as a way to achieve that. He recalled during his council campaign last year he’d had conversations expressing concern about how the design review board process had worked with The Varsity.

The question, Warpehoski said, is whether to include projects that are already in the works – because then the city is going to have a fight. He wondered is it’s a fight the city can win. He wondered if was going to be like him playing soccer against his two-year-old or having to play against David Beckham. Or it might be like him trying to box George Foreman. He was still wrestling with that question. Even if current projects were excluded from its application, he felt that a moratorium is an appropriate tool.

Warpehoski engaged in some back-and-forth with Taylor about the specific areas of inquiry to be addressed by the planning commission. Later, Sumi Kailasapathy (Ward 1) suggested a “friendly” change to the wording so that instead of singling out historic districts, it would say “adjoining neighborhoods.”

Jane Lumm (Ward 2) felt like all the councilmembers had really been struggling with the question. There’s no really good choice, she felt. She indicated she was receptive to separating out some of Taylor’s proposed amendments so that the question could be settled that night: “It’s crunch time.”

Lumm felt that when she drives past the site and considers what’s being proposed, there’s no doubt that the zoning wasn’t quite right.

D1: Council Deliberations – Amending Out the Moratorium

On Taylor’s amendments, the council eventually settled on separating out the deletions from the additions. First up were the deletions. So the council was considering whether to include a moratorium or not – without regard to which projects might be included.

Jane Lumm (Ward 2) and Christopher Taylor (Ward 3).

Anglin seemed disinclined to support the deletion of the moratorium, and expressed an interest in voting on the original resolution that Briere and Kunselman had proposed.

Lumm also said she had difficulty supporting the deletion of a moratorium. The community has every right to impose a moratorium and there needs to be a rigorous standard for imposing one. The need to review D1 zoning meets that standard, she felt, and that warranted a temporary moratorium. She hoped the work would proceed expeditiously. The result of the review, she said, was that she thought any projects going forward would have a better shot at respecting the community’s values. Lumm called it “a defining moment.”

Teall said she would love to be able to support a moratorium, but she took Taylor’s advice seriously. She did not want to leave the city a legacy of a lost lawsuit. She would support Taylor’s proposed deletion of the moratorium from the resolution.

Kunselman wondered if a moratorium was actually needed if 413 E. Huron were to be exempted. He recalled the city’s experience with City Place, which he called a “fiasco,” saying that it had just prolonged the agony. [The City Place project was eventually built along South Fifth Avenue, south of William.] He reiterated his view that he would not gamble with taxpayer money.

Sally Petersen (Ward 2) agreed with Lumm’s characterization that it’s “crunch time.” She was prepared to vote that night.

Some back-and-forth between Anglin and Taylor confirmed that the specific question then before the council was whether to delete the moratorium from the resolution.

Hieftje wanted to point that the council had received a lot of legal advice and had consulted with outside counsel. He said he was not ready to gamble with a great deal of taxpayer money. He didn’t feel a moratorium was necessary in order to review the zoning.

Mayor John Hieftje and Sally Petersen (Ward 2).

Briere made a final pitch to her colleagues, saying that a resolution would remove the moratorium from discussion. A moratorium is not only a legitimate tool, but also is something that’s not actionable, she said. She believed it would be difficult for someone who hasn’t brought forward a site plan to contest a moratorium. In all the things she’d read, a moratorium in itself would not put the city at risk. The amendment would remove reference to a moratorium as well as to projects in the pipeline – and those two things could be separated. So what Taylor’s amendment would do is completely eliminate the option of a moratorium. So she wouldn’t support the amendment.

Outcome on inclusion of the moratorium in the resolution: Voting to leave some kind of moratorium in the resolution were Lumm, Warpehoski, Anglin, Kailasapathy and Briere. Voting to strike any mention of a moratorium were Hieftje, Petersen, Taylor, Kunselman, Higgins and Teall. So on a 6-5 vote, the moratorium was amended out of the resolution.

D1: Council Deliberations – Planning Commission Direction

With the question of the moratorium settled, the council turned to Taylor’s proposed amendments on the specific inquiry the planning commission was meant to pursue.

Repeated here is the excerpt from the resolution with the original timeframe and Taylor’s proposed amendment [in italics] specifying what the planning commission would review:

Resolved, That the Planning Commission is directed to complete this evaluation and make recommendations to the City Council regarding any possible changes to the D1 zoning districts on or before June 4, 2013, and that the City Council will take action on those recommendations on or before August 19, 2013, and

Resolved, that city council requests that this review specifically address three issues:

i. Whether D1 zoning districts are appropriately located in relationship to historic districts on East Huron and South Main.
ii. Whether the city’s character overlay districts associated with D1 zoning have appropriate massing, setback, and height requirements to carry out the goals of the city’s master plans
iii. Whether the city’s development residential premiums effectively encourage a diverse downtown population.

Lumm asked city planning manager Wendy Rampson to respond to the proposed timeframe for the review. Rampson seemed somewhat hesitant to give any assurance that it was doable, saying that it would entail reassigning priorities for the planning commission. While D1 zoning is on the planning commission’s work plan, other major items on that work plan include the R4C review and ZORO [an overhaul of all the zoning code language that's not meant to include substantive changes]. There’s limited staff available to work on the D1 zoning review. However, if the D1 review was the council’s highest priority, she said, then the staff and planning commission would work on that, if this is what the council wanted staff to do.

Asked by Lumm if she thought the D1 review was achievable by the deadline, Rampson noted that it took 2-3 years to come up with D1/D2 and a lot of discussion between the city council and the planning commission. While that previous discussion could be taken as a starting point, Rampson was not sure the council would get the level of evaluation it was hoping for within the specified timeframe. Lumm told Rampson she appreciated Rampson’s realistic and honest assessment.

Back-and-forth among councilmembers culminated in a decision to delete the timeline and not worry that evening about providing the detailed direction to the planning commission regarding the nature of their assigned inquiry. The scope of work and the timeframe would be determined by April 1, the council’s next meeting. Councilmembers were satisfied, based on the view of assistant city attorney Kevin McDonald, that the resolution with an indeterminate timeframe would provide adequate notice to developers that the D1 zoning was under review.

As finally amended, the resolution contained two simple resolved clauses:

Resolved, That the City Council directs the Planning Commission to review recently approved and recommended site plans in the D1 zoning district to determine whether these zoning standards provide clear, understandable requirements regarding both form and use and at the same time conform to and carry out the goals of the City’s Master Plan, Downtown Plan and Character Overlay Districts; and

Resolved, That City Council provide the Planning Commission with a scope of work and a timeline by April 1, 2013.

Outcome: The council approved unanimously the resolution directing the city planning commission to review D1 zoning.

413 E. Huron

At its March 18 meeting, the council for the first time considered the site plan for 413 E. Huron – a  14-story, 216-apartment building at the northeast corner of Huron and Division streets. The city’s planning staff had recommended approval of this project, noting that it met all standards for new development in that part of town. Estimated to cost $45 million, the proposal calls for combining three lots on that corner and building a 14-story, 271,855-square-foot apartment building with 216 units (533 bedrooms) and underground parking for 132 vehicles.

Aerial map of 413 E. Huron site.

The planning commission’s 5-3 vote on the project, which did not achieve the 6-vote majority on the 9-member body necessary for a recommendation of approval, came at the commission’s Feb. 5, 2013 meeting. It followed an earlier decision by the commission on Jan. 15, 2103 to postpone a recommendation, pending input from the Michigan Dept. of Transportation.

The northern edge of the site is adjacent to the Old Fourth Ward historic district. Existing structures – including a house on North Division that was built in 1901, and a small shop at the corner that most recently housed Papa John’s Pizza – would be demolished.

The first floor would include about 4,000-square-feet for retail space. On the third floor, the building would include a range of facilities for residents, including a gym, yoga studio, business center and outdoor pool. According to a staff memo, more than 40% of the apartments would have two bedrooms, with other apartment sizes including one-bedroom units (19%), three-bedroom units (10%) and four-bedroom units (28%). Bike parking and bike lockers would also be provided on site.

413 E. Huron: Council Deliberations – Critique from Lumm

Jane Lumm (Ward 2) led off council deliberations by telling Conor McNally, who represented the developer Carter, that she assumed he was aware of the sensitivity of the site. At 150 feet, the building was at the maximum allowable height, Lumm noted.

She characterized the floor area ratio (FAR) of the project as 97% of the maximum allowable. [Lumm was basing that on the 700% floor area ratio, which can be achieved with a residential use – not the 900% that is possible if the residential use also meets standards for affordability. It's not clear, however, if 900% floor area ratio could be achieved for the East Huron character district in the D1 zoning area. That uncertainty is due to the 150-foot height limit, as contrasted with 180 feet for most other D1 character districts.]

Jane Lumm (Ward 2).

Lumm noted the 272,000 square feet of the project compared to the maximum of 279,000 square feet that corresponds to 700% FAR. She described that as including a “huge premium.” She also described the project as including only the minimum setbacks. She ventured that the developer himself might conclude that not a lot of effort had been invested in considering alternatives that were more sensitive to the surrounding neighborhoods. So she challenged McNally to comment on that and to describe any alternatives that had been considered for a shorter building, less mass, or larger setbacks. And if such alternatives have been considered, she wanted McNally to explain why those alternatives have been rejected.

McNally described the project as 670% FAR. Under the premiums that the project was pursuing, he explained there is a maximum of 700% FAR. He pointed out that there is actually an opportunity for 900% FAR with other premiums – which this project is not seeking. Lumm seemed to deny the existence of the 900% floor area ratio premium, by insisting that the maximum is 700%, and this project was at 670%. McNally reiterated that there are additional bonuses that could increase the FAR to 900% – but this project is not pursuing those premiums. He noted that the 900% FAR included a requirement that the units meet the requirement of affordability. As far as the setbacks, McNally said there is a maximum 150 foot depth on the property from Huron Street and the project is exactly at that point, he explained. There is no requirement of a side setback.

However, one of the considerations for purchasing the corner parcel – as well as the other parcels – was to make sure that the entire building could be pulled somewhat away [westward] from Sloan Plaza. That was an original discussion point, because it was known that there would be sensitivity to the fact that there was an existing high-rise building, which was built up to its own property line. McNally explained that under the zoning code, 413 E. Huron would have been allowed to build right up to the property line on the east, but instead they had decided to pull the building off of the east property line by 25 feet. Their thought was that this would be the most sensitive side of the building. That was an initial decision that had been made. Given the zoning that was in place and the purchase price of the property, he continued, it is important to be relatively close to the maximum allowable densities. So they had stayed at the maximum height and pulled the building back 25 feet from the side yard to get some space for Sloan Plaza. With respect to the other requirements, the project conformed to give maximum density.

Conor McNally, chief development officer for Atlanta-based Carter, the lead firm in the 413 E. Huron development.

Responding to the idea that some space for Sloan Plaza had been provided, Lumm told McNally that she had been out to the site over the past weekend – and she told him it did not seem or feel spacious. So she understood objections that have been raised. She told McNally that the project maximizes the massing and the density and uses minimum setbacks. So she saw that as an unwillingness to consider the recommendations that have been made to the project design team, starting with the design review board review back in October 2012, she said.

Lumm also wanted to explore the question of whether there was adequate access to the site by the fire department. McNally told her that this issue had been examined at length with the city’s fire marshal. Some concerns have been raised by neighboring residents, he reported. And in response to that the fire marshal had issued a follow-up letter – in addition to the review that had already been done with the planning staff – to say again that the standards were met and that the fire department was comfortable with it.

Lumm allowed that the site plan application indicates that the building is equipped with full fire suppression, but there is no detail on the plan. Are there sprinklers in every unit or just smoke detectors? That kind of detail had not been provided, she complained.

McNally told Lumm that that detail would be forthcoming in the course of the building process. At the site plan application stage, there is some amount of information provided, at the level of detail that is required – and that is put on the plans, and that is reviewed. But as the building progresses in its construction design, and the project gets to the stage of building permit applications, he explained that there is further detail that is generated and more review that takes place. Lumm told McNally that she would like to confirm what he was saying with the city staff.

413 E. Huron: Council Deliberations – Critique from Kunselman

Stephen Kunselman (Ward 3) told McNally that Kunselman’s mantra was “public safety, health and welfare.” Public health is a gray area, he allowed, because the city had turned over its public health department to the county. But he maintained that everyone knows that sunshine is important to health – you need vitamin D. Kunselman noted that during public commentary, the council had heard from a resident that his house is going to be in the shade nine months of the year. Kunselman wondered if that was an argument that Kunselman could use to deny approval of the site plan – that the project is denying someone’s access to sunshine necessary for public health.

Stephen Kunselman (Ward 3) looked at the new drawings provided by the developer of 413 E. Huron. To the left is Christopher Taylor (Ward 3).

McNally responded to Kunselman by saying that the zoning allows for a 150-foot-tall building at that location – so it’s logical to assume that there would be a shading effect. Every building that gets built would produce a shading impact. He thought this would be considered as a part of the zoning that is enacted the first place. That said, he allowed that shading had been a concern from the start. Responding to a contention made during public commentary that the shading study had been undertaken only at the suggestion of residents, McNally said that his team had done the shading study of its own accord, without anyone requesting it.

McNally ventured to that if you look at the detail of the shade study, it would become clearer that some of the talk about that study had been “exaggerated.” Shading is caused by the building, but if you look at the three houses that are closest to the project, that shade varies over the year. And there is already a reasonable amount of shade on the property, he contended. What the project team had tried to do was to produce a detailed set of drawings that depicts what actually happens. Very close to the property line, he allowed, the shading is more extreme, and it happens at more times of the year. But at the end of the block, there is very little shading, he said.

Responding to McNally, Kunselman asked if a less restrictive height limit would allow more flexibility to provide more sunshine onto the neighboring property. It’s been suggested, he continued, that the development team is not interested in looking at any other alternatives other than a “massive block.” But if the middle portion of the building were removed, to allow for sunlight to get to the other properties, and the east and the west ends were increased in height, there could be a different form to the building, which would be much more compatible with the Old Fourth Ward historic district.

Kunselman told McNally that there seemed to be an incredible amount of inflexibility on the part of the developer without working with the community to look at alternatives. He wanted to see a different design because it would allow for the benefit of public health, and be less intrusive to the neighbors. He asked McNally to speak to the fact that he did not appear interested at all in changing the form of the building.

McNally did not agree with Kunselman’s assessment that the developer was not interested at all in changing the form of the building. He pointed out that the development team had been through a lengthy process. Earlier in the process, around the time of the citizens participation meeting, there been a series of meetings with some of the neighbors, including the immediate neighbors and representatives of different groups. There was conversation brought up about changing fundamentally the design of the building to go with a “planned project” route – that would go taller on the corners and significantly shorter as it approached the residential areas.

That option has been studied in quite a bit of detail, McNally explained, and there was a session where the development team had been given feedback on that. In the end, in order to make that approach work in a way that was acceptable to the neighbors, it would have meant reducing the building by 30-40% in density. That had been studied in a lot of detail, and the developer’s representatives had sat down with neighborhood groups and showed them the alternatives. Unfortunately, the development team concluded that any density reduction of that amount (30-40%) was not economically viable for the project. The property had been purchased based on the underlying zoning, McNally explained, and what was entitled to be built within the maximums. The purchase price reflected reasonably expected density amounts based on the zoning, he said.

But the project team had still looked at trade-offs and reduction of density, he said. And in fact the revised plans that had been shown to the council that evening removed some density from the top of the building in a way that allows the building to have a better design at the top, and to deal with some of the comments people have made. But reducing the density by 30-40% would make it not economically viable. He explained that when you take floor-plate and split it down into smaller pieces, you don’t just lose the pieces of density that come away. Every component still has to have two means of egress – so each partial floor plan has to have two means of exit. You may need to add a huge number of stairwells to a building if it’s chopped up. And if there are two taller pieces, with a shorter piece in the middle, that can result in a requirement for multiple elevator banks. This had been studied with the architecture team over a series of weeks, McNally explained, but ultimately the team had concluded that the density reduction would have to be very significant in order for it to make any sense – and that was just a “bridge too far from an economic perspective.”

Kunselman said that what he was hearing was that the developer had paid too much for the property – and that’s the reason the density had to be maximized. McNally reiterated his point that the project was not in fact completely maximizing the density. The side setback on the Sloan Plaza side is over and above what the project is required to do, he pointed out. So there was additional density that could be achieved. The corner property had been purchased so that the building could be pulled away from Sloan Plaza, he reiterated.

413 E. Huron: Council Deliberations – Committing to Materials?

Sabra Briere (Ward 1) thanked McNally for the new drawings. She appreciated the fact that they had varied the cornice height. It’s something that she had hoped to see a while ago. By varying the cornice height, it was clear that they had taken about three or four units off the top floor. But she noted that a lot of people had proposed that they change the single elevator bank to be closer to the corner of Division and Huron streets. And it had been suggested that they pursue a “planned project” to increase the height at that corner and to decrease the height on the other sides of the building closer to Sloan Plaza and the neighborhoods. It’s clear that at this point, Briere ventured, McNally has not found a way to make that economically feasible.

One of the selling points, Briere told him, was the quality of the materials in the building. In the past, however, the city had experienced situations in which a developer had brought beautiful packages, but when they went back and did the final figuring, and value-engineered the project, the developer took away the beautiful materials. She was not suggesting that McNally would do that, she told him. But she would be much more comfortable with the project if the materials were actually written into the development agreement. She asked McNally if he would be willing to write the materials into the development agreement.

McNally said that conversation had come up earlier at the design review board meeting. The conclusion at the planning commission meeting, as he recalled it, was that staff had pointed out that the materials are actually specified on all the elevation drawings in the site plan application that had been submitted. And the developer is required to follow through on that, and be materially consistent with what was put forward in the site plans. So McNally’s position is that they are already putting in writing – in the site plan application – the specific materials that will be used.

Briere told him that she appreciated that he felt he had made that commitment, but she told him that the city had faced situations in the past when the city believed that it had a commitment from a developer about the materials, only to find the developer back in front of the council asking to change the external design elements.

Briere was trying to hold McNally to those extra design elements in such a way as to make it more difficult for him to make changes, she told him. McNally told Briere that he understood what she was saying. He said he had no intention of making any changes. So would he be willing to put this in the development agreement? Briere asked. McNally indicated he’d be willing to look take a look at that. He would need to discuss it with the partners, but he said they did intend to follow through on using the materials that are specified. So from the perspective of intent, the intent is already there, he concluded.

413 E. Huron: Council Deliberations – Natural Features (Trees)

Chuck Warpehoski (Ward 5) echoed Briere’s desire to see the specification of materials laid out in the development agreement and not just in the site plan. He said he had a couple of “truth in advertising questions,” about the drawings the council had received that evening. He had just visited the site that morning and he was looking at the elevation drawing that shows the building from the southwest corner, which shows the streetscape proposal. The existing sidewalk is fairly narrow, he observed, and he wondered how the depiction of the width of the proposed sidewalk and the green strip in front of the sidewalk would square up with what he’d seen at the site that morning.

Chuck Warpehoski (Ward 5).

Earl Ophoff, the civil engineer for the project, came to the podium to respond to Warpehoski’s concern. The sidewalk on East Huron is set back about 7 or 8 feet and that’s partly based on the discussion with the city’s forester, who wanted the proposed street trees to be moved further back from Huron Street, he explained. The effect of that was to narrow the sidewalk immediately adjacent to the building to about 5 feet. McNally added that one of the changes that has been made to this street facade is that the retail glass had been pulled farther back. So the retail glass is now a full 20 feet from the back of the curbs, he said. The green strip had been included in a way that’s consistent with what the development team has been asked to do by the city. But there is also a full esplanade – giving it a full 20 feet so that people will feel more comfortable in that area, he said.

Warpehoski’s other “truth in advertising” question related to shading. For the rendering that have been provided from the northwest view, Warpehoski said he had trouble imagining it would ever look as sunny as shown in the drawing. McNally said that the computer-generated 3D renderings obviously try to provide some light on the building so that you can see what the materials are on the surface. The foreground, the trees, and the street are a computer-generated model, so they may not be 100% accurate, he allowed. But the building comes exactly from all the CAD (computer-aided design) drawings, so it is completely accurate in its depiction.

The purpose of the renderings, McNally said, is to take something from flat black-and-white line drawings to give people a sense of what it’s actually going to look like. Warpehoski concluded that based on McNally’s description, it was a fair representation of what would be constructed, but not necessarily an accurate representation of how it would look in the environment with actual sunlight. McNally added that he felt the evening sun coming from the west does allow sun to come in from the back side of the building, so you would see light on the backside of the building as shown in the rendering.

Warpehoski then moved on to address the issue of natural features disruptions. Under the city code, on the site and 50 feet beyond the property line, any natural features that are anticipated to be disturbed require an alternatives analysis for any disruption, he said. He did not see an alternatives analysis in the site plan. So he asked that to be addressed. Ophoff noted that the survey did include an analysis of the natural features, which included landmark trees that were within 50 feet of the site. That listing is included on the site plans, he told Warpehoski. There was no requirement for an alternatives analysis, Ophoff said.

What had been required was alternative mitigation for the 24-inch black walnut tree that the council had heard about earlier during public commentary. No alternatives analysis is required for that, Ophoff contended. Warpehoski asked for a view from the assistant city attorney Kevin McDonald. McDonald said that looking at the ordinance, if there are natural features as defined in the land development regulations, on the site or within 50 feet of the site, there needs to be an alternatives analysis provided as part of the plan.

Ophoff responded by saying that there would need to be an alternatives analysis provided, if trees were going to be removed. However, the black walnut tree will remain. The developer will be mitigating the tree as if it were going to be removed, he allowed, but the tree itself is remaining – and that’s why there is no alternatives analysis required, he explained. Warpehoski countered by saying that as he read the ordinance, the language described alternatives analyses not for “removal” but rather for “disturbance.” Warpehoski told Ophoff: “My reading of the city code differs from yours.” Warpehoski ventured that maybe this was something that could be discussed anther time, as it appeared the council might not be deciding the issue that night.

Ophoff said he wanted to take another stab at explaining what was being done. On the poster display at the podium, he pointed to the black walnut tree in question, which is at the northwest corner of the proposed 413 E. Huron site. The alternative would be: Don’t remove the house that’s currently there. The impact to the tree is caused by removing the house, he explained. The underground portion of the new building is designed so that it’s not at all within the critical root zone of that tree, he said. So the proposed new building, he continued, has no impact on that landmark tree. What has an impact on the tree is the removal of the existing house.

Warpehoski checked again with McDonald. McDonald indicated that the regulations clearly require that the site analysis lists natural features, which the site plan application does. If there are natural features within the site or within 50 feet beyond the site that will be disturbed, it’s required that an analysis be provided, he concluded. He did not have the site plans in front of him, but if there is not an alternatives analysis in the site plan, it simply means that one needs to be provided, McDonald concluded.

Warpehoski said he’d like to see an alternatives analysis of the impact on an oak tree on the property as well. McNally added that the basement of the building had been redesigned to pull it away from the walnut tree. Sumi Kailasapathy (Ward 1) supported Warpehoski’s position – saying that there was at least an indirect impact to the natural features by the project through the removal of the house.

Jane Lumm (Ward 2) then also followed up with questions about trees, focusing on the oak tree at the northeast corner of the building – a different tree from the black walnut that Warpehoski had been talking about. Lumm said she was out there herself checking it out, and the underground parking, she felt, was cutting into the root zone of that landmark tree. Lumm said that a compromise had been suggested – to eliminate some of the parking spaces to help preserve that tree, and she told McNally that he did not appear to be interested in doing that.

McNally said that he did not recall any suggestion having been made specific to that tree about removing parking spaces. Lumm insisted that such a suggestion had been made at one of the citizens meetings – based on a notation she’d seen in a report. McNally said there had never been a specific suggestion about a specific location and a specific tree.

He pointed on the drawing exactly where the excavation was planned to happen. He characterized it as a good distance back away from the property line in most locations. On the northwest corner they had indented the underground parking area and eliminated some parking spaces, in order to give room for the landmark walnut tree. Lumm allowed that while that strategy had been applied on the northwest corner, it had not been applied on the northeast corner near the oak tree. That’s because there were not impacts on landmark trees in other locations, McNally said. At that point deliberation were interrupted by a shout from the audience “That’s not true! You lie! That’s not true!”

Council deliberations continued for several more minutes.

But when it was apparent from the late hour (well after 1 a.m.) that councilmembers would not get all their questions answered that night, the council agreed to postpone.

Outcome: The council unanimously agreed to postpone the 413 E. Huron site plan to its April 1 meeting.

Present: Jane Lumm, Mike Anglin, Margie Teall, Sabra Briere, Sumi Kailasapathy, Sally Petersen, Stephen Kunselman, Marcia Higgins, John Hieftje, Christopher Taylor, Chuck Warpehoski.

Next council meeting: Monday, April 1, 2013 at 7 p.m. in the council chambers at 301 E. Huron. [Check Chronicle event listings to confirm date.]

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Would a moratorium on D1 zoning site plan review be consistent with a view that Ann Arbor is “radioactive” to development? Components of this graphic include the D1 zoned areas of downtown Ann Arbor (darker red), D2 zoned areas (orange-ish), the symbol for radioactivity and a question mark. At a recent public meeting, the characterization of Ann Arbor as “radioactive” for developers was cheered by some residents who would prefer to see smaller-scale growth, if any. The city council considered but did not enact a moratorium on March 18.

The resolution gives specific direction to the planning commission to review the D1 zoning code and to make recommendations to the city council on possible revisions to the code.

In the original resolution, the planning commission was supposed to complete its work on or before June 4, 2013, and the city council was to act on the planning commission’s recommendations on or before August 19, 2013. But the specific timeline for the review was amended out of the resolution, in favor of a clause that indicates a specific timeline and scope of work will be forthcoming from the council. Also amended out of the resolution was any reference to a moratorium on site plans in areas zoned as D1.

There was some sentiment on the council for a moratorium, but possibly with the exclusion of projects already in the review process. Voting to keep some kind of moratorium as a part of the resolution were Jane Lumm (Ward 2), Chuck Warpehoski (Ward 5), Mike Anglin (Ward 5), Sumi Kailasapathy (Ward 1) and Sabra Briere (Ward 1). The vote on the final resolution, without the moratorium, was unanimous.

Not affected by the council’s resolution is 413 E. Huron, located on the northeast corner of Huron and Division streets. It’s a 14-story apartment building that would include 216 units totaling 533 bedrooms, with underground parking for 132 vehicles.

Also not affected by the council’s resolution is a proposed project at 624 Church Street – a 14-story building with 75 apartments and a total of about 175 bedrooms. The council gave the site plan for 624 Church Street unanimous approval at its March 4 meeting.

The wording of the original resolution exempted site plans that had already received the planning commission’s recommendation of approval by Feb. 19. So the 624 Church Street project would not have been encompassed by the originally proposed moratorium, because it received a recommendation of approval from the city planning commission on Jan. 15, 2013.

The moratorium was initially postponed from the council’s Feb. 19, 2013 meeting. That was the first council meeting after the 413 E. Huron project failed to achieve a recommendation of approval from the city planning commission. Under the originally proposed language of the moratorium resolution, the 413 E. Huron project would not have been allowed to move forward, because its site plan did not receive that recommendation of approval.

The outcome of the planning commission’s vote on Feb. 4, 2013 was not a recommendation for approval of 413 E. Huron, because the 5-3 tally in favor did not give the project the required six-vote majority. But even without a planning commission recommendation, a developer has the option of bringing a site plan proposal for consideration by the city council, which the 413 E. Huron developer did. The project appeared on the March 18 agenda, but had not been considered by the time this brief was filed at around midnight.

As they had at the council’s Feb. 19 and March 4 meetings, supporters and opponents of the moratorium addressed the city council during the public commentary period at the March 18 meeting. In written correspondence, legal action was intimated by some on both sides of the issue. A partial list of written correspondence included:

• A2Y Chamber opposition to moratorium
• Zaragon Place (Larry Deitch) in support of moratorium
• Norm Hyman in support of moratorium
• Norm Hyman comments in support of moratorium
• Christine Brummer in support of moratorium
• Multiple residents in support of moratorium
• historic district commission’s resolution in support of moratorium
• Susan Friedlaender (developer’s attorney) opposition to moratorium
• Pat Lennon (developer’s attorney) opposition to moratorium

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

Architect Brad Moore (left) talks with resident Ray Detter. Moore is architect for two projects that were on the council’s March 4 agenda – Blue Heron Pond and 624 Church St. The council’s approval of both projects indicates the governing body is not contemplating a Moore-atorium on site plans. (Photos by the writer.)

On one of those items, the council voted to postpone its initial consideration of changes to Chapter 7 of the city code, which governs the way the tax increment finance (TIF) capture is calculated for Ann Arbor’s downtown development authority. The revisions to Chapter 7 would also affect the composition of the DDA board, excluding elected officials from service.

The council also postponed until its next meeting, on March 18, a possible moratorium on site plan review for projects in the downtown. The possible moratorium previously had been postponed from the council’s Feb. 19 meeting. After hearing extensive public commentary on the topic on March 4 – from residents and representatives of the developer of a proposed 14-story residential project at 413 E. Huron – the council went into closed session.

On emerging from the closed session, the council voted, without deliberation, to postpone the item. The wording in the resolution provides an exemption from the moratorium for site plans that already have a recommendation for approval from the city planning commission. If enacted, the moratorium as worded would still apply to the 413 E. Huron project, because the planning commission’s 5-3 vote for approval fell short of the six it needed for a positive recommendation. The 413 E. Huron site plan is now expected to be on the same March 18 meeting agenda when the moratorium will be re-visited.

Eluding the impact of the proposed moratorium’s wording was another downtown project, which appeared on the March 4 meeting agenda. The site plan for a 14-story apartment building at 624 Church St. was approved at the council’s meeting – but that project would not have been impacted by the moratorium as it’s currently proposed. That’s because it had received a recommendation of approval from the city planning commission.

The council also voted to reconstitute a task force to re-evaluate the downtown design guidelines, which supplement the city’s zoning regulations.

In the final downtown-related item, the council voted to direct the city administrator to issue a request for proposals for brokerage services to possibly sell the city-owned parcel at Fifth and William streets – the location of the former Y building. It’s currently used as a surface parking lot in the city’s public parking system.

While the city is contemplating the sale of that site, which it purchased for $3.5 million, the council voted to buy a much less expensive parcel outside the downtown, near the Bluffs Nature Area. The council approved a purchase price of $115,000 for the parcel, which is located off Orkney Street.

The council also approved two other site plans for projects not in the downtown – although the four-unit project at 515 N. Fifth is near the downtown. The council also approved the Blue Heron Pond development, a 64-unit project on the western side of town, located at Liberty and Maple.

In other business, the council approved receipt of a federal grant to demolish two of the buildings on the city-owned property at 721 N. Main. The buildings are in the floodway. A third building, in the flood fringe, is being studied by the city for possible reuse.

The property at 721 N. Main is a former maintenance yard. So none of the 44 vehicles authorized for purchase by the council at the March 4 meeting will be maintained there. Total cost of the vehicles was $928,499.

None of the vehicles authorized for purchase was a plug-in electric vehicle. However, the council passed a resolution in support of preparing city infrastructure for plug-in vehicles. Two-other energy-related agenda items included one supporting the city’s participation in Earth Hour, and another one supporting use of the city’s energy fund for energy improvements in connection with community projects.

An item that drew considerable discussion before approval related to street closings associated with the June 9, 2013 Ann Arbor marathon.

D1 Site Plan Moratorium

The council was asked to consider a resolution it had postponed from its Feb. 19 meeting, which would enact a six-month moratorium on the acceptance of new site plans for downtown Ann Arbor developments.

Ann Arbor zoning. Darker red areas are zoned D1. Lighter brownish areas are zoned D2.

The resolution gives specific direction to the planning commission during the moratorium to review the D1 zoning code and to make recommendations to the city council on possible revisions to the code.

Impacted by the moratorium would be a project at 413 E. Huron, located on the northeast corner of Huron and Division streets. It’s a proposed 14-story apartment building that would include 216 units totaling 533 bedrooms, with underground parking for 132 vehicles.

Not impacted by the moratorium is a proposed project at 624 Church Street – a 14-story building with 75 apartments and a total of about 175 bedrooms. The council gave the site plan for 624 Church Street unanimous approval at its March 4 meeting.

Even if the council had delayed a vote on the 624 Church Street project, the wording of the resolution provides for exemptions for site plans that have already received the planning commission’s recommendation of approval. So the 624 Church Street project would not have been encompassed by the proposed moratorium, because it received a recommendation of approval from the city planning commission on Jan. 15, 2013.

The moratorium was initially postponed from the council’s Feb. 19, 2013 meeting. That was the first council meeting after the 413 E. Huron project failed to achieve a recommendation of approval from the city planning commission. Under the proposed moratorium, the 413 E. Huron project would not be allowed to move forward, because its site plan did not receive that recommendation of approval.

The outcome of the planning commission’s vote on Feb. 4, 2013 was not a recommendation for approval of 413 E. Huron, because the 5-3 tally in favor did not give the project the required six-vote majority. But even without a planning commission recommendation, a developer has the option of bringing a site plan proposal for consideration by the city council, which the 413 E. Huron developer intends to do. It’s the 413 E. Huron developer’s intent to bring the site plan to the council on March 18, the same date when the council will again consider the moratorium.

In a related item at the March 4 meeting, the council was asked to consider a resolution that called for reconvening the downtown design guidelines task force. The task force will review and make recommendations to city council regarding improvements to the design review process. Currently, developers must follow a mandatory process of review for downtown projects, but are not required to comply with the board’s recommendations.

The resolution on the design guidelines task force had also been postponed from the council’s Feb. 19 meeting. Members of the task force mentioned in the resolution are: Marcia Higgins (Ward 4 city council), Tamara Burns (architect), Dick Mitchell (architect), Bill Kinley (construction contractor), Norm Tyler (architect), Kirk Westphal (planning commission chair), and Doug Kelbaugh (University of Michigan professor of architecture and urban planning).

As they had at the council’s Feb. 19 meeting, supporters and opponents of the moratorium addressed the city council during the public commentary period at the March 4 meeting. Attorneys for the developer of 413 E. Huron also addressed the council again, intimating possible legal action if the council were to enact the moratorium. [.pdf of Feb. 28, 2013 letter from Pat Lennon] [.pdf of March 4, 2013 letter from Susan Friedlaender]

D1 Site Plan Moratorium: Public Commentary

All 10 reserved public commentary slots were taken by people who wanted to address the moratorium issue.

Hugh Sonk ventured that councilmembers have been inundated with information about the topic. He told the council he wouldn’t be rehashing all of it that evening. But he reminded the city council that a review of the zoning and the design guidelines had been promised when they were enacted – back in 2009. As the economy continues to improve, he continued, it will get increasingly difficult to find a window of time when a moratorium could be imposed to conduct the promised review. So the time to undertake the study is now, he concluded.

Sonk told the council that local independent legal experts had chimed in with the view that the U.S. Supreme Court has upheld the authority of a municipality to impose a moratorium to allow time to study zoning. He also told the council that the principle of fairness is important in imposing a moratorium – and exempting a particular project would work against that principle of fairness. That could expose the city to a lawsuit by those who were not exempted, he cautioned. He concluded that the safest path was to impose a moratorium on all projects in the pipeline.

Responding to the idea that the city council could be accused of acting in bad faith by imposing a moratorium, Sonk ventured that the council has heard from nearly every neighborhood in the city in support of a moratorium and a study of the zoning and design review process. He concluded that it’s not a sentiment that’s coming from one neighborhood or that is aimed at a single project. He told the council that they’d be hearing from the owner of a project in the South University area, who is concerned about the application of the moratorium to his project – so the moratorium clearly was not aimed at one particular project, he contended.

“We live in a very special community,” Sonk said. “There’s an energy and a buzz in this town that you don’t find in other Michigan cities,” he added. Ann Arbor consistently makes every list of best places to live, and cities like Flint, Lansing, Battle Creek, and Jackson don’t receive these kinds of accolades. The special nature of Ann Arbor must be protected, he said. No one opposes growth, he contended, but that growth must be compatible with the existing neighborhoods, and have a positive impact on the community. A few bad projects, he contended, would destroy the very fabric of the community that we enjoy. So we can’t afford to have any more projects go forward without review and a possible revision of the process and the regulations. He urged the council to “have the courage” to do what is right, and take on the promised review of the zoning and design guidelines, before any other projects go forward in the community.

Susan Morrison of the law firm Rentrop & Morrison addressed the council on behalf of her clients Norm and Ilene Tyler, who could not attend the meeting. She noted that the Tylers’ property abuts the 413 E. Huron project. She mentioned she previously had sent a letter to the city council, dated Feb. 19, 2013, and she hoped councilmembers had had a chance to review it. That letter had provided citations to law and a copy of a Michigan case related to moratorium, she said.

The cases showed that the use of a moratorium is a widely-accepted tool used in planning, she said. Based on the facts of the current case, and on 30 years of representing clients in matters of municipal law, Morrison continued, she firmly believed that a court would uphold the proposed moratorium resolution that was before the council. It would be upheld for several reasons: it’s for a reasonable period of time; it has a waiver provision; it applies to more than one property; it doesn’t affect any vested rights; and it has a specific and undeniably long-overdue purpose. That purpose was to bring the zoning ordinance into conformity with the adopted master plan, she said, and to fulfill a promise made to the public more than three years ago, to revisit the D1/D2 zoning regulations.

She said it was difficult for her to imagine any court invalidating the resolution, or finding anything other than good faith on the part of the city. She told the council it was also important to remember that there is no harm to the city that could come from voting for the moratorium. The council was only voting that night on whether to temporarily “push the pause button” to give time for the serious study that issue deserves. The council was not making a final decision about what the result of a study would be, she said.

If the city is later sued by owners who are affected by the moratorium, the council could always decide then the policy question of whether the cost of litigation should outweigh the strong public interest in reviewing the zoning regulations, Morrison said. She hoped that the council would not be intimidated by threats of litigation costs – to give up prematurely on what she called a “worthy moratorium.” She concluded by urging the council to adopt the moratorium resolution as it was currently written.

Peter Nagourney addressed the topic of faith. He began by saying that faith has a legal definition, a commonsense understanding, and a religious connotation. The legal issue is easy, he said. In Michigan law, he contended, bad faith can only exist when a government obstructs a developer’s vested rights. He contended that no rights had been vested by the developer of the proposed project – so bad faith on the part of the city was not a question.

Peter Nagourney.

Nagourney then moved to the common understanding of bad faith. If a developer meets with neighbors and says that he’s gathering ideas for the building design, and the very next day presents completed drawings for the project, was that conversation with future neighbors in good or bad faith? he asked. If the developer says he wants to enhance the city’s future, but doesn’t talk with the city’s planning department and then misidentifies the character district in which he thinks the project will be built, is that good or bad faith? And if the design guidelines review board input is ignored in the final building design, does that indicate good or bad faith?

The city has to show good faith with respect to its actions on any project, Nagourney continued. But the city also has obligations to maintain good faith to its own processes and promises to its citizens. Starting in 2009, when the north side of Huron Street was designated as D1 zoning, the need to examine the effect of rezoning the property was clearly established, he said. The D1 designation was controversial, and the potential negative impact on the adjacent historic district was clearly anticipated. So a moratorium seeking to re-examine the zoning is only following through on what was specified in 2009 and in subsequent documents, he said. If the city did not examine the D1 zoning designation, that would be a clear act of bad faith and would be unfair to the citizens, who expect the city to follow its own directives, he contended.

Nagourney then turned to the religious connotation of faith. That concerns a belief that acting in good faith guarantees someone a more pleasant hereafter. Enacting the moratorium also involves the hereafter, he said. He indicated that allowing the city of Ann Arbor to maintain its neighborhoods and to contain oversized buildings to where they belong in the designated downtown is one vision of the hereafter. He indicated another possible hereafter – the possibility that 150- and 180-foot buildings “sprout” in the only area of the city that lacks step-down protection from massive structures. He allowed that what’s at stake is not eternity, but said that we are talking about tens of decades – a legacy that current and future residents of Ann Arbor will have to live with. That’s a significant enough hereafter that it justifies good-faith decisions about the moratorium, he concluded.

Norman Hyman began by saying that after a considerable amount of discussion and a considerable amount of uncertainty, the council had several years ago enacted the D1/D2 regulations. The council had done that with trepidation, he said, and the council had not been sure about the regulations and how they would work. The council anticipated that experience – that is, subsequent events – would influence how the ordinance was working. That was no secret, he contended. The public knew it, and the owners of 413 E. Huron knew it. They knew that they were going to be subjected to a review of the ordinance after subsequent events gave the council the experience with which to make a fair judgment.

It took a little while to get that experience, Hyman said – but we now have it. And he contended that we now know that the regulations have not been working as hoped. It was obvious that the council was going to be influenced by “precipitating” events. There’s been at least two recent precipitating events, he contended: The Varsity building on E. Washington, and the 413 E. Huron project. But he drew a distinction between a “precipitating event” and a “motivating event.” The fact that the council understood and foresaw the possibility of coming back and reviewing the zoning ordinance does not mean that any one property is going to be singled out, he said.

Hyman noted that the council had received several letters from attorneys, and he ventured that they had read all of them. One of the developer’s attorneys, Susan Friedlaender, had referred to a U.S. Supreme Court case in her letter – apparently in support of her position. He said he was sure that the case she was referring to was the Tahoe-Sierra Preservation Council, Inc. V. Tahoe Regional Planning Agency case. He ventured that the city attorney’s office had made the council aware of that case as well. In fact, what the court had stated in that case, he said, was that the courts will not “mess with” a reasonable moratorium for a reasonable period.

Pat Lennon introduced himself as an attorney with the Honigman law firm. He reminded the council that he’d appeared before the body a few weeks ago – so he hoped he did not sound like too much of a broken record. He was there to oppose the proposed moratorium and to urge all the councilmembers to vote against it. As he’d mentioned at the previous city council meeting, the moratorium was being proposed under circumstances that would be unfair and improper and subject to legal challenge.

From left: Susan Friedlaender and Pat Lennon, attorneys for the 413 E. Huron developer.

First, he contended, the moratorium is clearly targeted at one project and one applicant – the owner of the 413 E. Huron project. The moratorium language goes to great lengths to exclude other “apparently more favored projects” while continuing to include 413 E. Huron, he contended. He did not disagree that it would be appropriate at some point to review the ordinance – but the moratorium should not apply to pending applications, particularly “by right” applications. If the moratorium were to be enacted, then it should exclude “by right” applications like the one for 413 E. Huron. His client had had no notice of this before the project began, and before his client had made substantial investments.

If the moratorium were imposed, the rezoning that could ensue would discard the lengthy A2D2 (Ann Arbor Discovering Downtown) process that produced the D1 zoning of the East Huron property. There’s no reason, need, or basis, he contended, for such extreme action in response to one project, which is opposed by “essentially a handful of influential citizens and leaders.” That kind of political and legislative activism, he ventured, would undermine the city’s credibility, and chill development in Ann Arbor – even development that might be popular.

The suggestion that the owner of 413 E. Huron lacks a vested property right is without merit, he continued. That point is thoroughly discussed in Susan Friedlaender’s letter, he noted, which was sent to the city council. He hoped that they would not have to make those legal arguments, but indicated he and his client were prepared to do that if they had to. The suggestion that his client would be damaged by the moratorium ignores the reality of how development works, he said. His client had made investments in acquisition costs, months of development costs, construction timelines and due diligence and drawings. Lennon said that those investments cannot just be discarded at the “whim” of some who don’t like the way a project looks.

At the end of the day, Lennon said, the moratorium should be denied. The developer relied on the D1 zoning category and invested in the site with a reasonable expectation that if he followed the rules in the ordinance, he would be able to build his “by right” project. Lennon compared a moratorium to changing the rules in a football game – late in the fourth quarter when the offense is about to score, by saying that a touchdown is no longer worth six points. “We don’t think that would be fair to a football game, and we don’t think it would be fair to our client in this case.” So he urged the council to vote against the moratorium.

Carl Hueter introduced himself as a lifelong resident of Ann Arbor and a practicing architect in Ann Arbor for the last 37 years. He’s processed about 100 site plan submissions with the city of Ann Arbor. Over the last 10 or 15 years, he’s found the site plan review process to be more and more contentious and “toxic.”

The city council’s Jan. 14, 2013 work session – on Connecting William Street – had included remarks from a consultant [land-use economist Todd Poole], Hueter reminded councilmembers. Poole had told the council that the city faces a challenge when marketing to well-financed development talent – because Ann Arbor is gaining a reputation for being “radioactive” to new development. [At the work session, Poole's remark about radioactivity had drawn cheers from some in the audience.] Large properties require significant investment, he said. Those investors require certainty in their efforts. The recent toxic site plan review processes, Hueter contended, have shown that a small vocal minority of intelligent, influential citizens can rise up to influence the legal approval process and subvert the law – overriding the will of the majority that created it.

As elected city councilmembers, Hueter continued, they owed their constituents their ear, but they should not allow constituents to own their minds. Rational, fair-minded review and actions for the majority should be the rule of the day in city council chambers, he said. The A2D2 process had been created, and subsequent D1/D2 zoning had been crafted, to provide a clear path for where the community wanted density to occur, he said, and to establish the certainty that development groups need in order to achieve that density.

Hueter allowed that it is fair to expect a review of an ordinance once it has “acquired its legs” – but to date, he contended, there’s not been a significant enough sample on which to base rational reactions. To impose a moratorium on the 413 E. Huron project would send a “frightening message” to the property owners and potential developers of downtown sites. The 413 E. Huron project, he pointed out, is already nine months into the site plan review process, through the planning commission with a majority vote [though not with a recommendation for approval], and it’s now just two weeks before it’s supposed to come before the city council

“We define ourselves by our laws,” Hueter said. Zoning ordinances are laws that tell a property owner how a community would like its property to be developed. By this direction and invitation, he continued, people move forward with developing their sites and with the expectation that these laws will be honored. To use a moratorium to halt this development at this time subverts the community’s legal obligations to these property owners. “The Ann Arbor I know is one where diversity is accepted,” he said. Looking different is not an affront, and coming from out of town is embraced, as a positive addition to a tolerant community. That diversity makes us a richer and more vibrant community, he said. We all know why this moratorium is on the agenda tonight, he said. And we all know which specific property it’s supposed to affect, he said. To allow a minority to direct and influence the vote is simply wrong, he concluded.

Tom Stulberg told the council that he lives in and owns property in historic districts. So he wanted to focus on that aspect of things. He thanked the council and the people in the audience who had worked very hard on the process to come up with the A2D2 zoning ordinance. A lot of effort had been put in by a lot of people on that. He allowed that it’s not always working – but said that’s not a criticism as much as it is a recognition of the iterative process of planning and zoning.

Ann Arbor has historic districts that immediately abut high-density zoning, he noted. That doesn’t necessarily work, he contended, giving as an example The Varsity building, which “looms over” nearby historic structures. It’s important to recognize that we owe it to all citizens living in our city and historic districts and who own property in historic districts, to honor Chapter 103 of the city code [on historic districts] as highly as we honor the other sections of the city code, he said.

Susan Friedlaender told the council that she represents the owner of the 413 E. Huron project. She responded to some things that she’d heard that night. With respect to the historic district question that Stulberg had just discussed, she noted that almost every parcel within that district is either designated historic or adjacent to a historic district. If development were limited on properties adjacent to historic districts, that would not leave much left over, she said. There are lots of properties that are protected and should be protected, she allowed. But when that protection starts “spilling over,” then it becomes over-broad, she said.

On the legal questions, she told the council that they’d heard a lot of general propositions, but reminded them that they are not a court. She didn’t want to make legal arguments to a court. She allowed that generally a moratorium might be reasonable, but she reminded the council that you have to look at the specific facts of the case. She contended that if you look at the specific facts of a particular case, then under the specific facts of that case, a court could find that there’d been bad faith. Courts can also find that protected property rights have been invaded, she said. And courts can find that a moratorium is invalid.

Friedlaender referred to the U.S. Supreme Court case that Hyman had brought up – mentioning that she and Norm had been old colleagues and practiced law together for many years. In the Tahoe-Sierra case, the court said that it was not making general propositions, she said. The court was not saying that a moratorium could never constitute an improper taking or that it is always an improper taking. Rather, the court had said that it depends on the facts.

Friedlaender told the council that she really did not want to debate the moratorium that evening and whether it was valid or not, but she felt that the line that was drawn – with respect to which projects are included and which are not included – is arbitrary. It’s arbitrary, because it is not a legitimate distinction to make between a site plan that’s been recommended for approval by the planning commission and one that’s been “technically” denied. The 413 E. Huron project had been technically denied, she said, but a majority of the planning commissioners had said that the 413 E. Huron project meets the terms of the ordinance. The professional city planning staff also said that the project meets the terms of the ordinance, she noted. And those planning commissioners who voted against the project had honestly said that they understood that it technically met the requirements of the ordinance, she contended, but nevertheless had voted against it.

Ray Detter spoke on behalf of the downtown area citizens advisory council, saying that the CAC strongly supported the moratorium resolution. It would deliver a long-promised review of the D1/D2 zoning ordinance. The CAC also supported the resolution to reconvene the design guidelines task force, he said. The zoning moratorium, he said, was crafted so well that he hesitated to elaborate on it. In 2009, he said, the city council had adopted the D1/D2 zoning after considerable discussion and uncertainty. The council had expressly stated at different times that it would revisit the zoning and the design guidelines process after a year or more. He contended that it was apparent now that the zoning was not working well, characterizing it as “flawed.” Out-of-town developers come and say that their projects are by right, Detter said. They produce buildings that ignore the suggestions of the design guidelines review board and the policy directions in the city’s adopted master plan.

Detter invited the city council to consider The Varsity – which he characterized as a student high-rise – and its negative impact on the neighboring First Baptist Church, which is a historic property to the east. That project had alerted the community to the dangers of the existing zoning, Detter contended. Another example of the failure of the zoning and design guidelines, Detter said, is the “massive student high-rise” proposed at 413 E. Huron. Both projects are massive, unfriendly structures, he said, that conflict with the city’s adopted master plan. In support of that contention he cited elements of the downtown plan related to sensitivity to context.

Detter noted that the city’s historic district commission had passed a resolution stating that the 413 E. Huron project “threatens the preservation of significant historic resources in the adjacent Division Street historic district.” He contended that the project stretched the floor area to the maximum – using what he called inappropriate residential premiums. It created a pedestrian-unfriendly experience, and ignored the advice of the design review board. But the developer insisted that the project was “by right,” he said. Detter also called for re-examining the appropriate zoning for the parcel now used by the University of Michigan Credit Union, formally a parking lot for the Ann Arbor News.

Bruce Thomson noted that the three parcels at North Division and Huron – site of the proposed 413 E. Huron project – have been the subject of much attention lately. In all the public discussion one key point has been sadly missing, he said: All three parcels have always been zoned for dense, high-rise construction. Prior to the new master plan and downtown zoning ordinance that was enacted in 2009, the land was all zoned C2AR. That zoning allowed for 660% floor area ratio (FAR), a 30-foot rear setback, no side setbacks and no height restrictions. “Let me repeat that: there were no height restrictions on this land,” Thomson said.

People who contend that some new zoning gift was granted to the land are misinformed, he contended. Under the new D1 zoning designation enacted in 2009, the land allows 700% floor area ratio, no side setbacks, and a height restriction of 180 feet. The character overlay district imposes a further limitation of a 150-foot height, and through setback requirements pulls any building on the parcels toward Huron Street – away from the historic district. The net effect of the new zoning, he said, was to allow an additional 6% of density.

His family had owned the land for almost 80 years, Thomson said. The zoning had always been for dense commercial development. When his grandfather bought the property, it was home to the Haunted Tavern – a commercial enterprise. His grandfather then built the A&P building – a commercial enterprise. The same is true for the Zahn family, which owned the corner parcel for 80 years. For all these decades, the owners had been subject to the rules and requirements of commercial land. The owners had paid the taxes that are commensurate with dense, high-rise commercial land.

The key point is that every homeowner who bought property adjacent to these properties did so with the fully available knowledge that they were zoned for dense commercial high-rise construction, Thomson said. If there was any doubt about the zoning and its possible effect, you only have to look at what’s already built farther up the block. On the same block is Sloan Plaza. Its eight extra-tall floors reach closer to 10 stories in height, he said. Next to that is Campus Inn, which is 14 stories tall, he said. It was obvious, he continued, that the zoning allowed for large, tall buildings. In 2009 the city council had rejected the concept of downzoning the corner of Huron and Division streets, because that would create a “special little pocket” surrounded by different zoning on three sides, which would not have been equitable. It would’ve looked strange, he said, to pick a small slice of the street to limit it to 40% of the height and floor area ratio [as in D2 zoning] allowed on the rest of the street. That would have been bad planning in 2009 and it would be bad planning today, he said.

A lot of time and energy had been spent crafting a compromise solution for the site, which he characterized as unique and challenging. The site borders residential homes on one side and the busiest road in the downtown on the other. The result of that compromise was that the site was treated with special limitations on height and setback – which still allow for the dense, tall construction that the land was entitled to, he concluded.

Outcome: The council voted to hold a closed session on the issue. After emerging from their closed session, the council voted without deliberation to postpone consideration of the moratorium for two weeks, until March 18.

On the reconvening of the design guidelines task force, Sabra Briere (Ward 1) noted that the design review board had requested the review process. A brief discussion resulted in a decision to specify Sept. 17, 2013 as the date by which a recommendation on any revised process should be given to the council.

Outcome: The council voted unanimously to reconstitute the design guidelines task force.

DDA Ordinance Revisions

The council was asked to consider several revisions to a city ordinance governing the Ann Arbor Downtown Development Authority (DDA). Some of the proposed revisions would have an impact of several million dollars over the next two decades, affecting several jurisdictions besides Ann Arbor.

Ann Arbor Downtown Development Authority (DDA) tax increment finance district is shown in blue.

Among the revisions to Chapter 7 that are being considered by the council are: a new prohibition against elected officials serving on the DDA board; term limits on DDA board members; a new requirement that the DDA submit its annual report to the city in early January; and a requirement that all taxes captured by the DDA be spent on projects that directly benefit property in the DDA tax increment finance (TIF) district.

But most significant of the revisions would be those that clarify how the DDA’s TIF tax capture is calculated. The “increment” in a tax increment finance (TIF) district refers to the difference between the initial value of a property and the value of a property after development. The Ann Arbor DDA captures the taxes – just on that initial increment – of some other taxing authorities in the district. Those are the city of Ann Arbor, Washtenaw County, Washtenaw Community College and the Ann Arbor District Library. For FY 2013, the DDA will capture roughly $3.9 million in taxes.

The proposed ordinance revision would clarify existing ordinance language, which includes a paragraph that appears to limit the amount of TIF that can be captured. The limit is defined relative to the projections for the valuation of the increment in the TIF plan, which is a foundational document for the DDA.

If the actual rate of growth outpaces what was anticipated in the TIF plan, then at least half the excess amount is supposed to be redistributed to the other taxing authorities in the DDA district.

What the proposed ordinance revisions clarify is which estimates in the TIF plan are the standard of comparison – the “realistic” projections, not the “optimistic” or “pessimistic” estimates. However, the ordinance revisions as currently formulated do not clarify whether a “cumulative” method of performing the calculations should be used or if a year-to-year method should be used. It’s anticipated that a further revision will be introduced specifying the “cumulative” method.

Use of the cumulative method has an impact on whether the redistribution of excess TIF is made on a one-time or recurring basis. Under the cumulative method, other taxing authorities in the Ann Arbor DDA TIF district would see a total on the order of $1 million in additional tax revenue, compared to the way the DDA currently calculates the TIF capture. The city of Ann Arbor’s annual share would be more than half of that amount, around $600,000.

Method: Year-to-Year                   
Refunds                                                         
       City       County      WCC       AADL      Total Ref    DDA TIF
FY14   $429,409   $149,392    $94,257   $40,163   $713,221     $3,964,457
FY15    $11,958     $4,160     $2,625    $1,118    $19,862     $4,774,758

===============================

Method: Cumulative                     
Refunds                                                      
       City       County     WCC        AADL      Total Ref    DDA TIF
FY14   $613,919   $213,583   $134,757   $57,421   $1,019,680   $3,657,998
FY15   $635,108   $211,673   $139,195   $58,539   $1,044,515   $3,773,043

-

The clarification of the ordinance crucially strikes two paragraphs related to bond and debt payments. One of the two paragraphs was key to the DDA’s current legal position – which is that no redistribution of TIF is required under the ordinance, given the DDA’s financial position. The DDA interprets the stricken paragraphs to mean that no redistribution to other taxing authorities needs to be made, until the total amount of the DDA’s debt payments falls below the amount of its TIF capture. In the FY 2014 budget, adopted by the DDA board at its Feb. 6, 2013 meeting, about $6.5 million is slated for bond payments and interest.

City of Ann Arbor financial staff chart showing Ann Arbor DDA TIF revenue under various methods of calculation.

That clearly exceeds the amount of anticipated TIF capture in the FY 2014 budget – about $3.9 million. The DDA is able to make those debt payments because about half of that $6.5 million is covered by revenues from the public parking system. The DDA administers the public parking system under contract with the city of Ann Arbor.

This issue first arose back in the spring of 2011. The context was the year-long hard negotiations between the DDA and the city over terms of a new contract under which the DDA would manage the city’s parking system. The Chapter 7 issue emerged just as the DDA board was set to vote on the parking system contract at its May 2, 2011 meeting.

When the issue was identified by the city’s financial staff, the DDA board postponed voting on the new contract. The period of the postponement was used to analyze whether the DDA’s Chapter 7 obligations could be met – at the same time the DDA was ratifying a new parking system contract, which required the DDA to pay the city of Ann Arbor 17.5% of gross parking revenues.

Initially, the DDA agreed that money was owed to other taxing authorities, not just for that year, but for previous years as well. And the DDA paid a combined roughly $473,000 to the Ann Arbor District Library, Washtenaw Community College and Washtenaw County in 2011. The city of Ann Arbor chose to waive its $712,000 share of the calculated excess.

Subsequently, the DDA reversed its legal position, and contended that no money should have been returned at all. That decision came at a July 27, 2011 DDA board meeting.

The following spring, during the May 21, 2012 budget deliberations, Stephen Kunselman (Ward 3) proposed an amendment to the city’s FY 2013 budget that stipulated specific interpretations of Chapter 7, with a recurring positive impact to the city of Ann Arbor’s general fund of about $200,000 a year. Kunselman wanted to use that general fund money to pay for additional firefighters. That year the budget amendment got support from just two other councilmembers: Jane Lumm (Ward 2) and Mike Anglin (Ward 5).

The proposed changes to the ordinance on the March 4, 2013 agenda were put forward by Stephen Kunselman (Ward 3) and Sumi Kailasapathy (Ward 1).

For a Chronicle op-ed on this topic, see: “Column: Let’s Get DDA TIF Capture Right.”

DDA Ordinance Revisions: Council Deliberations

Stephen Kunselman (Ward 3) introduced the ordinance amendments by saying that he’d be looking to postpone the question. He was inclined to postpone in light of additional information that the city council had received on the topic. The city council, he said, controls the budget, and the DDA’s TIF capture is regulated by the city ordinance on the DDA. Kunselman observed that the DDA is the only city agency that has been increasing its budget since 2002 – while the rest of the city’s units have been decreasing. If no action is taken, he said, in fiscal year 2014 the DDA’s budget stands to go up to $4.9 million – which is a significant jump. That jump is due to the new downtown buildings that have been constructed, he noted.

Stephen Kunselman (Ward 3) and Sumi Kailasapathy (Ward 1), who cosponsored amendments to the DDA ordinance.

In addition to the ordinance amendments on the TIF calculation, Kunselman noted that there were also some amendments concerning DDA board membership – on term limits and the prohibition of elected officials serving on the board. He indicated he was open to changes to the language. His purpose was not to vilify the DDA, he said, but rather to improve the institution.

It’s easy to vilify the DDA when you have people on both sides of the negotiating table, Kunselman said. [This was an allusion to the fact that in the past as the city and the DDA negotiated a contract under which the DDA operates the city's public parking system, mayor John Hieftje and then-city councilmember Sandi Smith simultaneously served on the city council and the DDA board.] The purpose of the amendments was not to target any official, he contended. Kunselman observed that one member of the DDA board [Leah Gunn] had been serving for over 20 years. He indicated that the DDA board members are getting “set in their ways. He called for “new blood” on the DDA board.

Chuck Warpehoski (Ward 5) – whose wife Nancy Shore serves as executive director of the getDowntown program, which receives funding from the DDA – described his wife’s employment circumstances. He said his wife’s salary is funded by a federal CMAQ [Congestion Mitigation and Air Quality Improvement] grant and that her direct employment is not tied to DDA funding. He also said that your spouse’s financial interests are not inherently your own. Some back-and-forth by Marcia Higgins (Ward 4) and city attorney Stephen Postema established that no vote on Warpehoski’s participation in deliberations on this matter was required. However, if someone objected to his participation, a vote could be taken. No one objected.

Sabra Briere (Ward 1) indicated that during a recess to the meeting that night and before the meeting started, she’d tried to go through the detailed answers provided by the financial services staff to written questions the council had submitted before the meeting. The response “TBD” to one of the questions made it clear to her that the council doesn’t have the information that might satisfy its curiosity. She also wanted to run these questions past the DDA’s own financial manager [deputy DDA director Joe Morehouse]. She supported a postponement.

A brief back-and-forth established a belief that the city’s financial staff and the DDA could answer any questions by the council’s March 18 meeting.

Outcome: The council voted unanimously to postpone the item until March 18.

624 Church St. Site Plan

The council was asked to approve the site plan of a 14-story apartment building at 624 Church St. The planning commission had given the project a unanimous recommendation of approval at its Jan. 15, 2013 meeting.

Image from the planning commission’s meeting packet shows the front facade of the 624 Church proposal, in relation to an adjacent house.

The requested action by the council came in the context of objections from representatives of the adjacent Zaragon Place apartments, who had previously raised concerns about how Zaragon – located at 619 E. University – will be impacted by construction at 624 Church. Zaragon opened a few years ago and is marketed to University of Michigan students. The developers of 624 Church intend to market their apartments to the same demographic. [.pdf of Feb. 28, 2013 letter from Zaragon attorney] [.pdf of Jan. 7, 2013 letter from Zaragon attorney] [.pdf of Jan. 10, 2013 response from 624 Church developers]

At the planning commission’s public hearing, residents had raised concerns about parking and the building’s size. There were also residents who supported the project.

The 83,807-square-foot, $17 million project is located next to Pizza House restaurant, on the west side of Church between South University and Willard. The building would include 75 apartments with a total of about 175 bedrooms, ranging in size from 490 to 1,100 square feet. About 70% of the units are to be 1-2 bedroom units. Other features include an enclosed room to store up to 60 bikes and a rooftop plaza with benches and a grilling area. It is located in the D1 zoning district, which allows for the highest level of density of any zoning district in the city.

For buildings with floor area ratios (FARs) up to 400% in D1 areas, the zoning code does not impose any parking requirements. But under the system of by-right premiums available in the zoning code, a building can have an FAR up to 700%. That’s a premium based on residential use: For each square foot of floor area that is used for multiple-family dwellings, an additional 0.75 square foot of floor area is allowed. For buildings that are larger due to this residential use, the zoning code does impose a parking requirement.

However, there will be no vehicle parking spaces on site at 624 Church St. The Ann Arbor Downtown Development Authority, at its Oct. 3, 2012 meeting, authorized the project to purchase up to 42 monthly parking permits as part of the city’s contribution in lieu (CIL) program. The CIL provides an option to purchase monthly permits to fulfill the city’s parking requirement for a project, but the cost is at a rate 20% higher than standard pricing.

The developer hoped that those permits would be for spaces located at the nearby Forest Avenue parking structure. The DDA board has struggled with that decision on location, as an operations committee meeting on Dec. 19, 2012 was inconclusive. However, at a March 1, 2013 meeting of that committee, a clear indication of support came from the committee for all 40 requested permits to be provided in the Forest Avenue structure. Local attorney Scott Munzel, who represents the developer Opus, attended that committee meeting.

624 Church St. Site Plan: Public Hearing

Architect Brad Moore reviewed some of the history of the project, including the fact that a previous expansion of Pizza House had included foundations that would allow construction on top of the existing structure that could go up to 17 stories. He observed that the D1 height limit meant that it wasn’t possible to build 17 stories. Moore reported that the conclusion of the city’s design review board had been that the project is harmonious with the context. Panels used in the construction would be prefabricated off site, and would minimize the amount of construction noise and debris. Changes to the project had been made as a result of the design review board’s recommendations and input from the citizens participation meeting, he said. Those changes included changing the unit mix so that the building would have predominantly 1-2 bedroom units – 74% of the units. Texture had been added to the cladding, Moore said. And the height of the project had been reduced by one story. Moore also noted that the project had received a unanimous recommendation of approval from the city’s planning commission

Dennis Tice told the council he was representing the Tice family, the owners of Pizza House, and was available to answer any questions.

Mark Bell spoke on behalf of The Opus Group, which is working with the Tices as the developer. He described Opus as a vertically-integrated design-build firm that developed projects in all asset classes: commercial, residential, multi-family, office, industrial, retail, government, and higher education. Since 1953, Opus has developed about 2,600 projects. Three main principles guide Opus, he said: integrity, safety and professional expertise. He thanked the Tice family for working closely with Opus to design a project that the city of Ann Arbor will be proud of. Like Moore, he noted that the project had been modified to include predominantly 1-2 bedroom units – 74% of them. That was meant to attract a broader demographic, he said. He also pointed out that the building would be certified by LEED.

Ethel Potts spoke against the project, saying it had several remaining issues. As an example she noted that the building goes up to the rear lot line, and the owner of the adjoining property had raised a legal objection – the issue was trespassing. Without trespassing on its neighbor’s property, she didn’t know how the project could be built.

Alluding to satisfaction of the parking requirement for the project through the contribution in lieu (CIL) program, she hoped some of the parking in the Forest Avenue structure would still be available to the public.

Eleanor Linn told the council that she supported the letter from the attorney for Zaragon Place, which called for additional study of light and safety issues.

From left: Eleanor Linn talks with Stephen Kunselman (Ward 3) and Marc Gerstein.

Thomas Partridge wanted assurance that the apartments to be constructed are affordable and have sufficient parking. He noted that there are very few college students – the anticipated target market for these apartments – who don’t want to have their own vehicle.

Sandra Sorini Elser introduced herself as legal counsel for the owner of Zaragon Place, which backs up to the proposed 624 Church St. project. The owner is not opposed in concept to the project. But a couple of elements of the site plan give the Zaragon Place owners great concern, she said – including concerns about the health, safety and welfare of Zaragon Place student residents. The western wall of the 624 Church St. project will be right at the lot line, she said. During construction, Zaragon residents using the backyard of Zaragon could be endangered by the installation of heavy concrete panels and other construction activities. She told councilmembers they’d been sent letters raising those concerns. She added that – despite statements by the developer of 624 Church St. – there is no easement available for 624 Church St. to use. So the developer of 624 Church St. could not use the Zaragon ground or airspace to construct its building. She reminded the council that the city’s site plan review standard requires a finding that there be no danger to health, safety and welfare – and she hoped the council would consider the construction safety concerns in that context.

Jim Caesar introduced himself as senior vice president for Opus. He pointed to the safety track record of the company, citing an experience modification ratio (EMR) that has been in the top 5% for the last 12 years. He indicated that Opus would not be using the Zaragon Place backyard as a construction staging area or a swinging area. Opus had eliminated any need to swing anything over the Zaragon property, or to have any air rights. He said that’s not the way Opus wanted to do the construction, but they would do it that way. He’d met with crane experts as well as with the city’s top building official, Ralph Welton, to review the safety plan.

Caesar said he kept hearing about things Opus didn’t plan to do – like trespassing on the Zaragon Place property. They’d met with experts to develop the crane system for the zero-lot-line construction at 624 Church St. Opus had two projects – one recently completed and another being built – that were being built with zero lot lines. He said it was not new technology.

Local attorney Scott Munzel spoke as the representative of Opus. The first and most important point, he said, is that the 624 Church St. site plan meets the zoning rules and related goals of the city’s downtown plan, which encourages dense land uses. He wanted also to touch briefly on the parking issue. This is the first time the CIL program would be used, he said. Opus had worked with Ann Arbor’s downtown development authority, which manages the city’s public parking system, to determine that there’s adequate space in the Forest Avenue structure for the 40 permits the project needs. He noted that the monthly permits in the CIL program are priced at a 20% premium over the normal rate. Opus is comfortable with the safety of the proposed construction technique, Munzel said.

Alan Haber began by saying he was not fully familiar with this project. He had trouble understanding why the council would be considering approval of a building at the same time it was considering a moratorium.

624 Church St. Site Plan: Council Deliberations

Christopher Taylor (Ward 3) asked for confirmation of the roughly 70% figure for 1-2 bedroom units – because there was an apparent discrepancy with the information the council had been provided in their packets. City planner Alexis DiLeo indicated that the 70% figure was confirmed, but it depended to some extent on whether a variance, for which the developer had applied, was granted. If it’s not granted, some units might need to combine bedrooms internally.

Taylor said he thought it was important that the developer had been willing to work with the feedback they’d heard from citizens participation meeting – by weighting the unit mix more heavily toward 1-2 bedroom units.

Responding to a question from Jane Lumm (Ward 2), DiLeo explained that the DDA had approved the 40 monthly parking permits through the CIL program at a March 1, 2013 meeting [of the operations committee].

Sally Petersen (Ward 2) signs an agenda for a student attending the council meeting on a class assignment.

Sally Petersen (Ward 2) asked for a description of the mechanics of building the west wall – without trespassing on the Zaragon Place property. The basic answer from Jim Caesar was that they wouldn’t be using a tower crane that spins in a circle. Instead, they’d be using a crawler crane with articulating jib. The jib lowers or raises without crossing the property line, he explained. It has a modified jib tip, with a GPS locator, which provides feedback to the operator. The crane slows down when it approaches the property line. Opus doesn’t plan on trespassing: “If we do, we’ll have an angry neighbor.”

Sabra Briere (Ward 1) said she’d heard concerns about small debris falling down. The explanation she was given was that a tarping system would be used, so any debris would hit the tarp system.

Briere also asked about maintenance on the west side. The answer was that precast tiles will be used as shingles and the construction wouldn’t rely on caulk. Briere said she appreciated that the design had been altered to identify the entrance to the building more clearly.

Marcia Higgins (Ward 4) thanked the development team for being interested “in what our community had to say.”

Stephen Kunselman (Ward 3) said his impression was that the project would cater to students, because it’s located in a student district. But given the precast construction, he wanted to know what the flexibility was for accommodating a new market. He based his question on a document he’d received from his employer, the University of Michigan, and read aloud from a portion of it:

In 2008-09, Michigan stood at the cusp of a sharp, long-term contraction in its production of high school graduates. Only California is projected to lose more graduates than Michigan, and only Vermont will shrink faster. After peaking in 2007-08 at 123,576 graduates, the state will see substantial contraction beginning in 2009-10. By 2019-20, high school graduates will fall 20% to below 99,000 and the decline is projected to continue indefinitely beyond that. Michigan’s nonpublic schools are projected to produce about 30% fewer graduates in 2019-20 compared to 2008-09. But unlike many other states, nonpublic graduates will retain close to a 7% share in Michigan because of the commensurate contraction in public graduates.

Kunselman ventured that the student housing market would be under stress.

Caesar told Kunselman that the building construction is based on four quadrants that are rigid. But within those four quadrants, he said, there was almost total flexibility to relocate kitchens, bathrooms, walls – or anything.

Outcome: The council voted unanimously to approve the 624 Church St. site plan.

Prepping to Sell Former Y Lot

The council was asked to take a step toward putting the former YMCA parcel up for sale. The roughly 0.8 acre parcel in downtown Ann Arbor on the north side of William, between Fourth and Fifth, is currently used as a surface parking lot in the city’s public parking system. The city purchased the property nearly 10 years ago, in 2003. The council was asked at its March 4, 2013 meeting to direct the city administrator to prepare an RFP (request for proposals) for brokerage services to sell the lot.

Highlighted in yellow is the location of the former YMCA lot, which the city of Ann Arbor is considering selling. A $3.5 million balloon payment on the property is due at the end of 2013.

A similar proposal to start the process for selling the lot was considered at the council’s Aug. 20, 2012 meeting, but received the support of only three representatives on the 11-member council: Mike Anglin (Ward 5), Jane Lumm (Ward 2) and Stephen Kunselman (Ward 3). Some councilmembers were generally in favor of selling the lot, but called the effort premature, given a planning effort that was then underway. This time around the resolution from Kunselman was co-sponsored by mayor John Hieftje.

What’s changed since August 2012 relates to a project that the Ann Arbor Downtown Development Authority has been working on for about two years – Connecting William Street, a planning effort that includes the former Y lot. The Connecting William Street project was undertaken by the DDA based on a directive from the city council, on a unanimous vote, given at its April 4, 2011 meeting. And at a Jan. 7, 2013 working session, the DDA gave a presentation to the council on its recommendations for future use of five city-owned parcels in the downtown area – the former Y lot, the Kline’s lot, the Palio lot, the Fourth and William parking structure, and the top of the Library Lane underground parking garage.

The city had used a loan to purchase the property from the YMCA for $3.5 million in 2003. The council voted in 2008 to extend a five-year loan with the Bank of Ann Arbor for another five years, through the end of 2013. The interest rate is 3.89%. The interest-only payments work out to roughly $140,000 a year. By the end of 2013, the total interest paid will be around $1.4 million.

A building on the site was condemned, and the cost of demolishing it and abating asbestos was around $1.5 million. The Ann Arbor DDA covered the demolition costs and has covered half of the interest payments. So the total amount of Ann Arbor governmental investment in the property is at least $6.4 million.

Revenue from the surface parking lot on the site – which charges a $1.40 hourly rate – amounts to $105-$140 per space per month for roughly 140 spaces. Over the last year, the lot has generated a rough average of around $20,000 per month. But usage has decreased since the opening of the new 711-space Library Lane underground garage, located across the street.

That parking revenue from the former Y site is collected by the Ann Arbor DDA, which operates the city’s public parking system under contract with the city. Under terms of that contract, the city receives 17% of the gross parking system revenues. Also under terms of the contract, the DDA has the option to object to eliminating a facility from the parking system, within 30 days of notification by the city.

Prepping to Sell Former Y Lot: Council Deliberations

Stephen Kunselman (Ward 3) led off deliberations by observing that a significant balloon payment was due in December. He thought the resolution was a good first step.

Jane Lumm (Ward 2) felt that selling the property “as is” is an option. The resolution doesn’t commit the city to sell the property, only to issue an RFP to engage a broker. If no actual deal results, then the risk to the city would be measured in terms of possible brokerage fees, and the amount of those fees isn’t known. She felt it was worth the small potential risk.

Mayor John Hieftje indicated that he had been hesitant to consider engaging a broker before the Connecting William Street (CWS) project recommendations came back. He ventured that some people argue against proceeding with this step, because the interest rate on the city’s loan is low and the surface parking lot currently generates revenue. He also noted that the DDA is “a good partner” by covering half the cost of the interest payment. He felt it was a good idea to explore the sale now and possibly have money left over from the sale to deposit into the city’s affordable housing trust fund. He asked for the council to support the resolution.

Chuck Warpehoski (Ward 5) said he’d support the resolution. He observed that the council had delayed a decision on the moratorium, which might affect the potential sale price. Whatever people thought about the CWS project, part of the reason to take the approach of issuing an RFP for parcels was to set higher standards for design. He stated that the city should have high standards for the design of what gets built there – something that is “worthy of the city.”

Sabra Briere (Ward 1) indicated agreement with Warpehoski’s comments. She picked up on Hieftje’s allusion to the affordable housing trust fund. By way of background, the council voted on Oct. 15, 2012, to deposit the “net proceeds” of the sale of the former Y lot into the affordable housing trust fund. Briere indicated that she wanted to be generous about how the net proceeds are calculated – because they could be defined in a way that diminished the amount that would go to the affordable housing trust fund.

Christopher Taylor (Ward 3) indicated that he was still up in the air on how to vote, saying he recognized there’s a force in what people were saying. But the council had asked the DDA to take a long look at the five parcels. And the DDA had returned to the council with the idea of linking the former Y lot and the top of the Library Lane underground parking garage. That linkage, he allowed, reduced the possibility of movement anytime soon. But he felt there’s more value in the parcels if they were combined.

Taylor did not feel it was a threat that the balloon payment is due – because the loan could be refinanced. He indicated he was inclined to continue with the recommendation of the CWS process. In large part, Margie Teall (Ward 4) echoed Taylor’s sentiments. The work the DDA put into CWS deserves more thought and recognition, she felt. One concern she had was the city might lose control over design and use, if the lot were just sold off. That concern was mitigated by the fact that the resolution was only about engaging a broker, not committing to a sale.

Sally Petersen (Ward 2) responded to the concern about losing control over the future of the lot, by suggesting it might be appropriate to try loosening control. When she heard the climate for development described as “radioactive,” she felt it might be a good challenge “to see how flexible we can be.”

Outcome: The council voted to direct the city administrator to issue an RFP for brokerage services to sell the former Y lot. The lone dissent was from Christopher Taylor (Ward 3).

Orkney Parcel Near Bluffs Nature Area

The council was asked to approve the purchase of a parcel located on the west side of the Bluffs Nature Area. The cost of the roughly 0.357-acre piece of vacant land located at 1240 Orkney – with a current SEV (state equalized value) of $49,200 – was $115,000. [SEV is based on 50% of market value.]

The parcel is located immediately adjacent to the Bluffs Nature Area – in the north part of the city, near the confluence of North Main, M-14 and Huron River Drive. The parcel is intended to provide an additional access point to the nature area, from the west.

The total proposed appropriation of $128,000 in open space millage funds for purchasing the Orkney parcel included $3,000 in closing costs and $10,000 in due diligence. An environmental assessment would be done before the closing.

The vote on the Orkney parcel had been postponed from the council’s Feb. 19, 2013 meeting. Postponement came in the context of objections from Stephen Kunselman (Ward 3) on the cost of the land, and questions from other councilmembers about the need for access from the west side of the nature area.

Orkney Parcel Near Bluffs: Council Deliberations

As he had at the council’s previous meeting, Stephen Kunselman (Ward 3) questioned the purchase price. The information he’d requested on the required utility connection charges had been provided: $34,500. That would add to the cost of the land acquisition, if it were being sold as developable land. The $115,000 price the city was offering would translate to a total cost of $149,500, he said. If the land didn’t sell on the open market at that $115,000 price, why was the city paying that price? Kunselman blamed an inability of landowners to sell vacant property on the utility connection charges. He understood there was sentiment in the neighborhood in support of the city’s purchase of the land, but he had a really hard time paying full market value. He felt the market value of the land was probably more like $80,000.

Kunselman allowed he’d probably wind up voting for the purchase, but he felt the council should be looking at repealing those utility connection charges, because they were really hamstringing new infill development. Related to that, he said that he’d received his own property assessment recently – and it was down by $15,000. That put him “under water,” he said.

Sabra Briere (Ward 1) indicated that her biggest concern is how the land will be used, so she had questions about parking and bicycle access. She noted that residents have been using it informally as an entrance to the Bluffs Nature Area. Residents were concerned that people would park their cars on the street or the land. Sumedh Bahl, the city’s community services area administrator, told Briere that when the parcel is acquired, staff would look at it, and ensure that it doesn’t become a parking lot – but the staff haven’t yet considered all the details. The parcel is meant for walking and trail access, Bahl said. He indicated it’d be possible to place some signs directing people where to park.

From left: Chuck Warpehoski (Ward 5), planning commission chair Kirk Westphal and mayor John Hieftje.

Jane Lumm (Ward 2) reported that she’d driven past the property. From her perspective, it’s not the right spot for parking, characterizing it as a beautiful lot. She wanted to know if an easement had been considered instead of a purchase. Bahl indicated an easement had not been considered.

Chuck Warpehoski (Ward 5) gave his perspective as a runner using the parks system – saying that when he ran, the trails made access better, and multiple points of access would increase the utility of the nature area. He agreed with Kunselman’s points that the council should consider how connection charges impact infill development. He didn’t think it means the city is paying too much for the Orkney parcel, just that the council should review the connection fees.

Margie Teall (Ward 4) reported the view of a neighbor that increased traffic through the nature area would help prevent encampments from being established there.

Sabra Briere (Ward 1) described the nature area as a very rough natural area, with one of the best views of the Huron River from anywhere in city. But in the last few years complaints had been heard about people living in the woods. The more people use it, the less of a wilderness area it is, so the extra entrance is a positive thing, she concluded.

Outcome: The council voted to authorize purchase of the Orkney parcel over the lone dissent of Marcia Higgins (Ward 4).

Townhomes on South Maple

The council was asked to approve the site plan of a large townhome development at the northwest corner of West Liberty and South Maple. The project had received a unanimous recommendation of approval from the city planning commission at the Dec. 18, 2012 meeting of that body.

Site of the Blue Heron Pond development at the intersection of West Liberty and South Maple streets.

Blue Heron Pond is a planned project of 64 units on a 7.8-acre site that’s zoned R4B (multi-family dwelling). It’s the site of a development formerly called West Towne Condominiums that was started in 2005 but never completed. A building with 11 units has been constructed on the site, although the original developer – the Concannon Company – had planned to build 87 units.

The new owner, Norfolk Development, bought the property in the spring of 2012. The new $4.2 million project calls for constructing nine buildings in two phases. The first phase will include construction of four buildings along West Liberty, with the five other buildings in the site’s interior to be constructed at a later date. The complex will have a mix of two- and three-bedroom rental units ranging in size from 980 to 2,577 square feet, each with an attached one-car garage. Rents are expected to be in the $900 to $1,800 range.

The proposal is a planned project – rather than a by-right development – because a modification is being requested to the zoning requirements. Rather than the 20 feet between buildings that’s required in R4B zoning, the developer wants to reduce that amount to 15.7 feet between two of the buildings along West Liberty.

A large wetland in the center of the site will not be disturbed. A contribution of $26,000 to the city’s parks system has already been made, with the funds used for improvements at South Maple Park.

Townhomes on South Maple: Public Hearing

Brad Moore – having spoken at the public hearing on 624 Church St. as that project’s architect – drew a laugh by telling the council he was “still Brad Moore.” Moore noted that the project had been started by a previous owner and developer, but it had been a casualty of the economic collapse of 2008. The project is being reconstituted with improvements, using the existing infrastructure. The development will preserve the existing pond and nature area. The buildings will be downsized, reducing the number of dwelling units. Guest parking would be increased. The building form was changed to townhomes from stacked flats.

Thomas Partridge told the council he was there as an advocate of all residents of Ann Arbor, Washtenaw County, and the state of Michigan who can’t afford housing. He was concerned that the planning commission has not attached a requirement to the project that would result in the apartments being marketed or leased to residents who can afford them.

Townhomes on South Maple: Council Deliberations

Mike Anglin (Ward 5) asked about the affordability of the apartments. Brad Moore indicated that they’re not affordable in the sense of “affordable” that might qualify them as a public benefit for a planned unit development. But he indicated that he would not consider the apartments to be high-end or luxury. Responding to a question from Sumi Kailasapathy (Ward 1), Moore said rents would range from $900-$1,600 a month.

Chuck Warpehoski (Ward 5) thanked the developer for taking up the project, with its improvements in design.

Outcome: The council voted unanimously to approve the Blue Heron Pond site plan.

515 N. Fifth Ave. Site Plan

The council was asked to approve the site plan of a residential building at 515 N. Fifth Ave., between Kingsley and Beakes on the west side of North Fifth. The project is a three-story, 8,404-square-foot building with four two-bedroom units: two condominiums and two apartments. The project had received a unanimous recommendation for approval from the city planning commission at that body’s Jan. 3, 2013 meeting.

Aerial view showing the location of 515 N. Fifth, outlined in black.

The apartments would be on the second and third floors, while the condos would be on the first floor, with entrances from the north and south sides. Parking would be provided in an attached four-car garage in the front of the structure, though the garage openings are located on the side, near the front of the building. [.pdf of site plan] The site is zoned R4C (multi-family residential district) and the existing house on the site, with three apartments, would be demolished. It was built in 1901. Construction is estimated to cost $925,500.

The project had been postponed at the planning commission’s Dec. 4, 2012 meeting, as planning staff recommended giving the owners more time to address a range of issues related to utility, landscaping and natural features analysis. At that meeting, Christine Crockett, who’s president of the Old Fourth Ward Association, and Ray Detter of the downtown citizens advisory council spoke in opposition to the project. They had cited a range of objections, including their view that the design did not fit with the neighborhood.

515 N. Fifth Ave. Site Plan: Public Hearing

Thomas Partridge introduced himself as an advocate for those who need and deserve affordable housing. He asked how the council could approve such a limited number condos for this property, when there’s such a great need for housing. He called it a matter of civil and human rights.

Scott Bowers, the project’s architect, addressed the council, asking for approval. He described the physical parameters of the project and the prospective tenants.

515 N. Fifth Ave. Site Plan: Council Deliberations

Chuck Warpehoski (Ward 5) noted that the project is right down the street from where he drops off his daughter for preschool. He got some reassurance that access to the neighborhood wouldn’t be negatively impacted during construction.

Sabra Briere (Ward 1) lamented the fact that the porch is on the driveway side of the building instead of the street. Porches not facing the street were starting to be seen in other projects as well. That’s beginning to become a concern of the planning commission, she reported. [Briere is the city council's appointee to the planning commission.] She’s heard it mentioned at two separate planning commission meetings. She simply wanted to note the issue as a concern.

Outcome: The council voted unanimously to approve the 515 N. Fifth site plan.

FEMA Grant on 721 N. Main Demolition

The council was asked to approve the receipt of $87,704 in funds from the Federal Emergency Management Agency (FEMA). The grant money is to go toward demolishing two buildings on the city-owned 721 N. Main property near downtown Ann Arbor.

721 N. Main site showing the two buildings to be demolished, which are located in the floodway.

The 721 N. Main site is a former city maintenance yard, and is part of a broader area being studied by a task force. That area includes the North Main corridor and extends to the Huron River, covering the MichCon site near Broadway.

The cost of the demolition will be $116,939, with the remaining $29,235 to be paid by the city. The city’s portion will be drawn from a combination of funds – fleet services, major streets, local streets, and stormwater utility.

The two buildings are being demolished because they’re in the FEMA floodway. A third building – not in the floodway, but still in the flood fringe – is being studied for possible re-use. On a recommendation from the task force, the council approved $30,000 for the physical testing of that building at its Feb. 19, 2013 meeting.

The task force recommendation for the use of the 721 N. Main site has already been delivered to the city council, and is consistent with a previous council resolution that the floodway portion of the site would be incorporated into an Allen Creek greenway. The site-specific recommendation for 721 N. Main was delivered to meet deadlines for grant applications. The recommendation for a broader area on the 721 N. Main site is due at the end of July 2013. The city is applying for $300,000 in funding from the Washtenaw County parks and recreation commission’s Connecting Communities program, which had a December 2012 deadline. The city also plans to apply for a Michigan Natural Resources Trust Fund grant, which has an April 1, 2013 deadline.

FEMA Grant on 721 N. Main: Council Deliberations

Sabra Briere (Ward 1) noted that the issue has been previously discussed. Because they’re in the floodway, the buildings have to be removed, she said. The demolition of the buildings moves things closer to turning the property into a public amenity. She mentioned the work of the North Main task force, and expressed her hope that a link could be made between North Main Street and the Huron River.

Mayor John Hieftje said he was excited about taking another step toward establishing a greenway park.

Outcome: The council voted unanimously to receive the FEMA grant funds for demolition of the two 721 N. Main buildings.

Vehicle Purchases

The council was asked to consider six separate resolutions, authorizing the purchase of 44 new vehicles, with a total cost of $928,499. The vehicles include police patrol cars (7), 15-passenger vans (3), 4×4 pickup trucks (6) and compact cars (6), as well as several other vehicle types, used in different city service units.

The city’s vehicles are managed through the fleet services fund, not by each individual service unit. Replacement of a vehicle is determined through a scoring system that includes age, miles/hours of service, type of service, reliability (measured by number of repair work orders), maintenance cost, and supervisor review.

The supervisor’s rating is weighted so that vehicles that have been in service for a long time or that have had one exceedingly high repair charge – but are otherwise in very good condition – are not replaced.

Vehicle Purchases: Council Deliberations

The resolutions on the vehicle purchases were moved and voted on “all in one go.”

Jane Lumm (Ward 2) appreciated that the review process for vehicle replacement is robust and thorough. Police vehicles were being replaced in a way that’s consistent with the union contract. It should be reassuring to the public that there’s a robust process, she said.

Outcome: The council voted to approve all the vehicle purchases.

Energy Agenda Items

The council was asked to act on three energy-related items. First, the council was asked to authorize the expanded use of its energy fund to support community energy efficiency programs – not just programs to improve municipal energy efficiency. The resolution effecting the change to the fund’s use limits its use for community programs to 20% of the existing fund balance. That balance, according to environmental coordinator Matt Naud, stands at around $400,000. The kind of support the energy fund is intended to provide includes establishing future loan loss reserve funds, providing low-interest loans, and buying down interest rates.

A second energy-related item was a resolution to prepare the city’s infrastructure systematically to support plug-in electric vehicles. That included direction to the city staff to review permit processing and zoning codes to ensure that barriers don’t exist to creating plug-in infrastructure. It also included direction to the fleet services unit to weigh the possibility of making plug-in vehicles a part of the city’s fleet. The resolution also directed that the city collaborate with other organizations like the University of Michigan. The resolution included a six-month deadline for reporting back to the council on any actions the council needs to take to remove barriers to plug-in readiness.

A third energy-related item on the council’s agenda was a resolution of support for Earth Hour, which takes place this year on March 23. The resolution included encouragement of city employees to turn off or dim all non-essential lighting in city buildings between 8:30-9:30 p.m. on March 23. The resolution encourages residents to do the same.

Energy Agenda Items: Council Deliberations

On the energy fund item, some questions were raised about the impact of sequestration on the city’s federal energy grant. The city’s environmental coordinator, Matt Naud, indicated that the strategy had been to draw down every dollar from the grant the city could and not to give any of it back.

From left: Wayne Appleyard, chair of Ann Arbor’s energy commission talks with Stephen Kunselman (Ward 3).

On the plug-in item, Jane Lumm (Ward 2) was impressed by the availability of online information about electric charging stations in the city’s public parking system. Sabra Briere (Ward 1) added that drivers have figured out that they can share a charging station, by communicating with each other through the course of a day – so a single charging station can be used by two or three vehicles during the day.

On the Earth Hour item, Chuck Warpehoski (Ward 5) said that he’d co-sponsored the resolution in response to feedback from constituents. He described the dimming of lights for one hour as a symbolic action, but the goal of that one hour is for it to be a catalyst for changing our energy culture. He said he hoped it didn’t have the negative press that surrounded it the last time around, quipping that you didn’t need to be a “dim bulb” to support it. [This was an allusion to a city council scandal a few years ago, when it came to light that some councilmembers were exchanging emails during meetings that included disparaging remarks about each other and others. One of the emails included an apparent reference to Ward 5 residents as "dim."]

Sabra Briere (Ward 1) observed that between 8:30-9:30 p.m. on March 23 is twilight – just after the equinox. It will still be relatively light. She’d seen a lot of neighbors outside last year.

Outcome: The council took separate unanimous votes approving all the energy-related items.

Ann Arbor Marathon Street Closing

Before the council for its consideration was approval of the necessary street closings for the 26.2 looping course through Ann Arbor for the second edition of the Ann Arbor Marathon.

Course map of the 2013 Ann Arbor Marathon. Image links to marathon website.

Last year’s race, held on June 17, 2012, drew harsh criticism – as some residents were surprised to have their morning routes to church cut off and their Father’s Day plans disrupted.

As part of his city administrator’s report at the city council meeting the day after the marathon, Steve Powers noted a number of complaints had been received about disruption caused by the race. Powers asked councilmembers to forward complaints from constituents to him, saying the city staff would review the event and would appreciate hearing from councilmembers’ constituents.

The staff memo accompanying the council’s March 4, 2013 agenda item included a description of several changes to this year’s event, meant to address some of the complaints.

The date of the event in 2013 is Sunday, June 9 – not Father’s Day. Washtenaw Avenue was eliminated from the course, which is meant to diminish the impact to the Ann Arbor Transportation Authority’s bus service.

Improved efforts are also supposed to be made by Champions for Charity, the event sponsor, to notify neighborhood associations, churches, apartment complexes and other relevant organizations about the event. Course marshals will also get better training about alternative routes to recommend to the public, when people are confronted with an unexpected street closure.

Ann Arbor Marathon Street Closing: Council Deliberations

The item came late on the council’s original agenda, but the agenda was changed at the meeting so that the item could be considered earlier. Mike Highfield – president and CEO of Champions for Charity, the race sponsor – was asked to the podium to answer questions from councilmembers, which covered much of the same ground in the staff memo accompanying the resolution.

Responding to a question from Chuck Warpehoski (Ward 5), Highfield said that even if nothing were changed from last year, he expected that this year’s race would be smoother than last year, which was the first year of the race. In a city with no daily newspaper, he said, a significant portion of the community didn’t know about the race. But several changes had been made, he said. The most significant of the changes involved removing Washtenaw Avenue from the course – because most of the complaints last year were off Washtenaw Avenue. So six churches are no longer affected, he said. Another major change is to make the southern leg – down to the Briarwood Mall area – an out-and-back loop. That’s despite the fact that many runners don’t like out-and-back style courses, Highfield said. But that avoids going past five apartment complexes. The course this year doesn’t venture off into new parts of town.

Warpehoski followed up with specific questions about how notification would take place. Warpehoski also complained that registration had been taking place for the race since December last year – before council action on street closings. He said that process “leaves a little bit to be desired.” Highfield noted that if there were any risk, then it was his, and he explained a range of factors that had led to the item not being on the city council’s agenda earlier.

Mike Anglin (Ward 5) complained about the blaring music early in the morning. He wondered what the purpose of the loud music was during the run.

Sally Petersen (Ward 2) responded to Anglin’s question about the music by inviting him to put on his running shoes on June 9, saying the music helps get you out the door. Petersen applauded Highfield for getting the inaugural marathon off the ground last year. She characterized it as no small feat. She’d run the half marathon last year. She’d heard some concerns about street closings but hadn’t heard the noise complaints that Anglin had mentioned.

Sabra Briere (Ward 1) suggested that Highfield make sure all the churches are contacted. Marcia Higgins (Ward 4) wanted to make sure that residents of Hidden Valley Apartments on South State were given adequate notice.

Outcome: The council voted unanimously to approve the street closings for the June 9, 2013 Ann Arbor marathon.

Communications and Comment

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

Comm/Comm: About Public Speaking

During the time allowed for public commentary at the conclusion of the meeting, Thomas Partridge told the council he was an advocate for all those who need and deserve government services the most, including homeless people and people who can’t buy or rent a place to live. He complained that he’d called in at 8 a.m. that day, to reserve one of the 10 slots to speak at the start of the meeting. [All of the slots were taken by people who were speaking to the item on the agenda about the moratorium.] Partridge believed he should have been one of the 10 people.

Also during the time allowed for public commentary at the conclusion of the meeting, Michael Benson reflected on the council meeting two weeks ago, saying he’d been dismayed by the lack of courtesy expressed during public commentary – and he thanked councilmembers for sitting through it. He ventured that the public commentary rules might be amended to encourage people to be civil.

Comm/Comm: Ice Skating Rink

During the time allowed for public commentary at the conclusion of the meeting, Alan Haber updated the council on efforts to create a recreational skating rink on top of the Library Lane underground parking garage. He hoped that his group would be able to make a presentation to the next meeting of the DDA’s partnerships committee.

Present: Jane Lumm, Mike Anglin, Margie Teall, Sabra Briere, Sumi Kailasapathy, Sally Petersen, Stephen Kunselman, Marcia Higgins, John Hieftje, Christopher Taylor, Chuck Warpehoski.

Next council meeting: Monday, March 18, 2013 at 7 p.m. in the council chambers at 301 E. Huron. [Check Chronicle event listings to confirm date]

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The architecture of councilmember snacks at the Feb. 19, 2013 meeting provided a nutritional buffer against zoning out during the meeting: a stacked configuration of units for fruit and nuts. (Photos by the writer.)

The item drawing that interest was a proposed six-month moratorium on site plan review by the city for projects in the D1 (downtown core) zoning district. After holding a nearly one-hour closed session to review written legal advice from the city attorney’s office, the council decided to postpone the issue until March 4, its next regular meeting.

Exceptions to the proposed moratorium are provided for projects that have already received a recommendation of approval from the city’s planning commission. While that exception applies to a large residential project at 624 Church St., it does not exempt a larger project at 413 E. Huron. Planning staff had concluded that the East Huron project meets all the zoning requirements. But the planning commission’s vote on 413 E. Huron was only 5-3 in favor of recommending approval – one vote short of the six it needed. Ordinarily developers can, on their own initiative, bring a site plan to the city council for action, even without the planning commission’s recommendation.

If the resolution is enacted, then during the period of the moratorium, the planning commission would be directed to review the D1 zoning standards against site plans submitted since 2009, when new zoning regulations were established. The commission would be asked to make recommendations by June 4, its first meeting in June. The postponed resolution states that the council is supposed to take any action by Aug. 19, its second meeting in August.

Legal counsel for the 413 E. Huron developer addressed the council, intimating that if a moratorium were enacted, then a lawsuit would be filed against the city. Attorney Susan Friedlaender expressed skepticism about a provision in the postponed resolution that provided a way for an aggrieved party to have a hearing before the council. The council will take up the moratorium again on March 4.

Also postponed was a related resolution to reconvene the design guidelines task force, which would be asked to recommend improvements in the design review process. That resolution also will be taken up on March 4.

In another item related to downtown land development, the council completed an accounting step – establishing a project budget – in connection with roughly $9 million of bonds recently sold by the city. Those bonds are funding the public parking deck portion of the private City Apartments project now under construction at First and Washington. The Ann Arbor Downtown Development Authority will be making the bond payments.

Another land use issue postponed by the council was the proposed purchase of a parcel immediately adjacent to the Bluffs Nature Area. The postponement was based on council questions about the need for additional access from the west side of the nature area, and the price to be paid out of the city’s open space and parkland preservation millage. Related to that same millage, the council approved applying to the USDA Farm and Ranch Land Protection Program (FRPP) for matching funds to acquire development rights on two farms as part of the city’s greenbelt program.

In other land zoning issues, the council gave final approval to the owner-requested rezoning of some residential properties in the Arbor Hills neighborhood. The council also gave initial approval to a rezoning that would allow a retail project called The Shoppes to be built near the junction of Plymouth and US-23.

The council took action related to city-owned land at 721 N. Main, approving a $30,000 physical study of the main building on that former maintenance yard, to see if it can be re-used. At least part of that site is slated to become part of an Allen Creek greenway.

Across the street from 721 N. Main stands a collection of vacant houses that were supposed to be demolished to make way for the Near North affordable housing project. With that project now defunct, the city is moving to demolish the houses as nuisances. The council’s action on Feb. 19 was to accept about $96,000 in additional federal funds through a community development block grant, which can be used only for demolition of houses on the former Near North site.

In other action, the council formally adopted a sustainability framework that now will be part of the city’s master plan. And related to sustainability, the city council authorized the issuance of up to $1 million in bonds for the property assessed clean energy program (PACE). The PACE program provides low-interest loans for owners of commercial properties to invest in energy saving improvements.

Changes to the city’s living wage ordinance also were on the Feb. 19 agenda. The council had previously contemplated but ultimately postponed those changes. This time around, they were tabled. That means the issue will not come back, unless the council proactively decides to take up the proposal again in the next six months.

Also as a result of council action on Feb. 19, the municipal airport will get new fencing.

Moratorium on Downtown Site Plans

The council considered a six-month moratorium on the acceptance of new site plans for developments in downtown Ann Arbor.

Sabra Briere (Ward 1) and mayor John Hieftje.

Councilmembers also considered a resolution that called for reconvening the downtown design guidelines task force to consider and make recommendations regarding improvements to the design review process. Currently, developers must follow a mandatory process of review for downtown projects, but are not required to comply with the review board’s recommendations. The resolution was added to the agenda about an hour before the meeting started. Members of the task force mentioned in the resolution are: Marcia Higgins (Ward 4 city council), Tamara Burns (architect), Dick Mitchell (architect), Bill Kinley (construction contractor), Norm Tyler (architect), Kirk Westphal (planning commission chair), and Doug Kelbaugh (University of Michigan professor of architecture and urban planning).

Under the proposed moratorium, a controversial project at 413 E. Huron would not be allowed to move forward, because its site plan did not receive a recommendation of approval from the city’s planning commission. However, the wording of the resolution provides for exemptions for site plans that have already received the planning commission’s recommendation of approval.

Specifically, the wording in the resolution means that the moratorium would not apply to the 624 Church St. project, which received a recommendation of approval from the city planning commission on Jan. 15, 2013. That project is expected to be considered by the city council at its March 4 meeting. The 14-story 624 Church St. project would offer 75 apartments with a total of about 175 bedrooms. Local attorney Scott Munzel, who represents the developer of the project, attended the council’s Sunday night caucus to get clarification on that point.

The moratorium also would not impact Kerrytown Place, a proposed development on North Main – the site of the former Greek Orthodox church – because it’s not in a D1-zoned area. It’s currently in a PUD area, but would meet D2 (interface) zoning requirements. Kerrytown Place consists of three 3-4 story buildings with a total of 19 units. The project was evaluated by the city’s design review board on Feb. 20.

Architect Norm Tyler attended the Feb. 19 meeting but did not address the council.

But based on the wording in the resolution, the moratorium would apply to the 413 E. Huron project, which recently failed to gain a recommendation of approval from the city planning commission, and could be on a city council agenda as early as mid-March. That project is located on a site zoned D1, the highest density allowed in the city. It would be a 14-story, 271,855-square-foot apartment building with 533 bedrooms, marketed primarily to university students.

But even without a planning commission recommendation, a developer ordinarily has the option of bringing a site plan proposal to the city council for consideration, which the 413 E. Huron developer intends to do. The developer is Greenfield Partners, a Connecticut-based firm doing business here as Ann Arbor Green Property Owner LLC. The real estate development firm Carter – based in Atlanta, Georgia – is a lead partner in the project.

The council’s resolution, if enacted, also would direct the planning commission to use part of the period of the moratorium to review recently approved and recommended site plans in the D1-zoned areas. The point of the review would be to determine if zoning standards provide appropriate guidance on form and use, and if the zoning conforms to the city’s master plan, downtown plan and character district overlays. The resolution states that the planning commission is to complete its work by June 4 (its first meeting in June) and the council is supposed to take any action by Aug. 19 (its second meeting in August).

The memo accompanying the resolution notes that an initial review of the relatively new A2D2 zoning, enacted in 2009, was supposed to take place after one year. But in that first year no projects had been proposed – because of the economic downturn. Since then, however, the memo points to four projects that have been proposed in D1 areas: Zaragon West (built), The Varsity (under construction), 624 Church St. (proposed) and 413 E. Huron (proposed).

Feb. 19 was the first council meeting after the city planning commission took action on the site plan for 413 E. Huron. The determination of the planning staff was that the project met the D1 zoning requirements, which in that part of the city includes a height limit of 150 feet. However, the outcome of the planning commission’s vote on Feb. 4, 2013 was not a recommendation for approval, because the 5-3 tally in favor did not give the project the required six-vote majority.

The planning commission vote came after long and harsh criticism during the public hearing on the 413 E. Huron site plan – at the two meetings when the planning commission deliberated on the proposal. Some residents called for a rezoning of the parcel, saying it was inappropriate for that area. The D1 zoning had been part of the A2D2 rezoning package for the downtown, which the council approved at its Nov. 16, 2009 meeting.

The resolution to establish a moratorium was brought forward by Ward 1 councilmember Sabra Briere and was co-sponsored by Stephen Kunselman (Ward 3). Briere sits on the city planning commission as the council’s representative, and voted as a planning commissioner against the 413 E. Huron project. Joining her in that three-vote dissent were commissioners Wendy Woods and Ken Clein.

The council’s dilemma with respect to 413 E. Huron relates to the parcel’s zoning, which many residents contend was inappropriately zoned as D1. Opponents of the project argue that the site should have been zoned D2 (interface), in order to provide a buffer between densely developed areas and neighboring residential areas.

Last year, on April 16, 2012, the city council was asked to contemplate the reverse scenario, when a developer asked for conditional rezoning of a parcel at 1320 S. University – to change its 2009 designation of D2 to D1. The requested D1 zoning would have allowed for a much denser project, which would have exceeded the 60-foot D2 height limit by 85 feet. The council rejected that request. On that occasion, Christopher Taylor (Ward 3) argued that the community conversation about the South University area – which had led to the D2 designation – had been significant and warranted the council’s respect.

Moratorium: Public Commentary

Peter Nagourney told the council he supported the resolution to review conformance of site plans with zoning and the rest of the city’s planning documents. He told the council that his interest in the topic went back to his participation in the citizens committee that had worked on the design guidelines as part of the Ann Arbor Discovering Downtown (A2D2) process. He was speaking on behalf of eight different neighborhood organizations, he said. In the downtown area, he said, except for properties that are bounded by University of Michigan properties, all parcels zoned D1 step down to D2 zoning before they meet residential areas. That principle is true except for two blocks on the north side of Huron Street, he said. It had been originally zoned D2, but he said that “at the last minute” it had been changed to D1.

Sketch of “worst-case scenario” created four years ago in March 2009 during the debate on A2D2 zoning.

When the D1 zoning was proposed for that part of East Huron, neighbors who live on North Division Street had sketched out the worst possible potential impact of the zoning – which did not comply with any of the city’s planning documents, and which require step-down buffers to adjacent residential areas. [Chronicle coverage from March 24, 2009 – "A2D2 Zoning in the Home Stretch" – included the same sketch Nagourney showed the council on Feb. 19, almost four years later.]

The unanimously adopted design guidelines were intended to help developers in the city generate new projects that conform to appropriate design and planning documents, Nagourney said – including character overlay districts and historic district guidelines. The original goal was to have design guidelines integrated into the city zoning ordinances, and to evaluate the zoning and design guidelines to determine how well they had met their goals.

Nagourney told the council that the 2009 sketch of the worst possible potential impact of D1 zoning turns out to be conservative – because the 413 E. Huron project has been designed to occupy every square inch of the parcel. The proposed building has no step-down to the adjacent residential area, and casts the historic district to the north in shadow much of the year, while threatening landmark trees that predate the city’s founding. In addition, he continued, as it’s now written the inappropriate zoning will allow a 180-foot tall building to be constructed on the lot adjacent to city hall (to the east) with no setbacks or buffer.

If Ann Arbor’s legal or financial records were threatened by an oversight in security or procedures, the city would act as quickly as possible to close that loophole, he said. Today, he contended, the city’s zoning code has a loophole in the A2D2 process – but in this case, the consequence is not a temporary loss of data, but a permanent alteration of the city’s character. The council should act now to stop and review these problems while it can, and preserve the character districts and historic districts that were intended to create a city to serve multiple generations over many years.

Steve Kaplan told the council that he was a lifelong resident of Ann Arbor – born here, bred here, educated here, and now he works here. He works for a company that has been here for 50 years, he said. As an independent small business person, he continued, he welcomed density and development in most cases – because it helps his business. It helps the bottom line. However, in certain specific cases, he felt that it might do more harm than good.

Kaplan said he’d participated in many of the meetings that were held as part of the A2D2 process, and in this one particular area, on the north side of East Huron, he recalled it being a tricky part of the equation. He said he was not alone in being surprised that the proposed zoning had been changed at the “11th hour” from D2 to D1 zoning. He characterized a decision as possibly being driven by the “loud threatening calls of a few people” with specific interests. As the city contemplates reviewing the process as it should have done a year ago, Kaplan said, he worried that the same loud and specific calls of the few would outweigh the benefits and the needs of the many. So he asked the council to remember that as they deliberated on the issue. He cautioned the council to be very careful before they took permanent steps.

Jeffrey Crockett introduced himself as a resident of East Kingsley. He told the council that several landmark trees in the Old Fourth Ward historic district were being threatened by the current D1/D2 zoning law on the north side of Huron. He described two bur oaks with 40- and 50-inch diameters, as well as a hickory tree with a 24-inch diameter. The estimated age of the larger oak tree, he said, is about 250 years. He read aloud a substantial portion of a letter from Christopher Graham, a landscape architect who previously served on the planning commission and is currently chair of the natural features committee on the environmental commission. Graham’s letter states in part:

It is area of the grove of trees under which Indians camped and managed the landscape into a spectacular, open, old tree canopied setting. A few of those old trees still exist, and the one immediately nearby may be one of them. … is counter to the grain of the spirit and work and intent of all those who have so carefully crafted our historic districts, including this most special one, the one that is original Ann Arbor, the one named for a grove of trees and a couple of founders wives’ first names. [.pdf of Graham's letter] [.pdf of a second letter from Graham]

Crockett described the mitigation provided by the zoning ordinance for damage to trees as inadequate. Replacement of a landmark tree with smaller substitute trees, he said, is designed for the benefit and convenience of the developer. That can’t compensate the community for the loss of a 250-year-old tree that inspired the name of Ann Arbor. He pointed out that the historic district ordinance for the city does protect landmark trees.

He quoted section 5:138 of the zoning ordinance, which reads “no approval of any plan, plat or division pursuant to this chapter shall be construed as authorizing any improvement or action not in compliance with all – not some – provisions of this code.” He called on the council to ensure the protection of landmark trees by ensuring that the historic district ordinance is upheld, which he said allows for protection of landmark trees. He described how the construction of the proposed 413 E. Huron could impact the nearby oak tree’s critical root zone and told the council that it might not happen immediately but within five years, the tree would be dead.

When the developers of tall buildings have cashed out their investment and left town, Crockett continued, it will be Ann Arbor’s citizens and their children and grandchildren who will be left to wonder why we didn’t do more to save the landmark trees in “tree town.” He urged the council to vote for the moratorium.

Attorney Susan Friedlaender introduced herself as a representative of the owner of the 413 E. Huron property. She began by quoting the political philosopher Jeremy Bentham:

With respect to property, security consists in no shock or derangement being given to the expectation which has been founded on the laws, of enjoying a certain portion of good. The legislator owes the greatest respect to these expectations to which he has given birth: when he does not interfere with them, he does all that is essential to the happiness of society; when he injures them, he always produces a proportionate sum of evil.

The result of the A2D2 zoning process, Friedlaender said, gave birth to the reasonable expectation that those new zoning laws would have some measure of stability. The city knew, or should have known, that the new laws would encourage significant investment in Ann Arbor. The council had drafted those laws specifically to encourage that investment, she said, observing: “Well, it came.” Her clients had reasonable expectation, she continued, that if investment was made in the city, that the rug would not be pulled out from under them. She noted that her clients had constitutionally protected property rights, which the moratorium was designed to take away. The last-minute addition of an appeal procedure, she said, would be completely futile – because if the council were to grant that appeal, it would destroy the whole purpose of the moratorium. She urged the council to vote against the resolution, which she characterized as “ill-advised.” It’s difficult and dangerous to try to legislate taste, she said.

Carl Hueter began with an allusion to the fact that his name had been rendered as “Carol” on the meeting agenda, joking that it’d been the first time he’d undergone a gender change. He told the council that he had been born in Ann Arbor sometime in the middle of the last half century, and he’s been a practicing architect in the city for the last 40 years. He had seen a great deal of change in his 60 years of life in the city, he continued.

Hueter described the site plan approval in the 1970s and 1980s as a relatively easy and uncontentious affair. But moving into the 1990s, more and more neighborhood groups got involved in the site plan approval process. More and more requirements were placed on the site plans, he said. It became harder and more difficult and more financially challenging to develop site plans in the city of Ann Arbor. As we moved through the 1990s and into the early 2000s, he continued, there were some very contentious projects. As an offshoot of that, the A2D2 process was established. The hope was that by re-looking at the city’s zoning ordinances, citizens would have a fair and adequate way to participate, and also to allow developers to see a clear path – if they followed through the course of the zoning ordinance, it would give them some certainty that they would receive approval.

The moratorium resolution the council is considering, Hueter said, was a “thinly veiled attempt to deny one specific project its due process.” He allowed that the D1/D2 zoning ordinance needs to be re-evaluated – and it was written into the code that it needed to be reviewed within a year after being enacted. But there were not a sufficient number of projects brought forward in that first year on which to base such a review, he said. And so far seven such projects have been proposed, he said. He described the opposition to the project as a “very well-organized minority of a small neighborhood in the city who have failed technically to deny the project moving forward.” So now the group is acting politically, he said.

Hueter allowed that the zoning needs to be reviewed, but asked the council not to deny this specific development – which was proposed by developers, who months ago had entered into a process with the trust that they would receive due process, review and consideration of their project.

Assistant city attorney Kevin McDonald touches base with Ward 2 councilmembers Sally Petersen and Jane Lumm.

Pat Lennon introduced himself as an attorney with the Honigman law firm, representing the developer of 413 E. Huron. He’s chairperson of Honigman’s land use and zoning group, and is also a chairperson of the West Michigan Program’s committee of the Urban Land Institute – so he has an opportunity to review a lot of zoning and land use matters. He said he had the pleasure of appearing before bodies like the Ann Arbor city council all over the state. He was there because he and his client felt that it was “a pretty extreme situation.” In his view, his client had been put in an unprecedented situation. He was there to urge the council to vote down the moratorium. If the motion were to pass, then his client would be reviewing his legal rights and protecting his legal position, Lennon said. “Our client was stunned to learn about this proposed moratorium,” he told the council.

The proposal came virtually on the eve, he said, of his client’s opportunity to have his project considered by the city council. In addition to the issues raised by Friedlaender, he saw additional legal questions that a moratorium would raise. Based on the circumstances, the moratorium appears to be directed at one applicant and one project – his client’s. If that’s not in fact the case, he said, he would urge the city council to exempt pending applications from the moratorium.

Second, he questioned the circumstances under which the matter has been put before the council. There had been no mention of a moratorium before his clients started the application process, which had already been going on for months. No review had been mentioned previously for the D1 category. “We are understandably frustrated by this turn of events,” he told the council. His client would review whether the moratorium followed the proper path on its way to counsel, and he will be ensuring that his client’s rights had not been violated along the way.

Finally, Lennon said, the timing of the moratorium is dubious. A measure that’s as impactful and far-reaching as the one the council is considering had come up with short notice and apparently little discussion before it came before the council. It appeared to him that the moratorium and the potential changes to the ordinance can be seen as a last effort to avoid making a final decision on his clients “by right” project. In his view, any such use of the moratorium process would be improper, and if it were put in place, it would entitle his clients to their legal rights. Putting aside the question of legal rights, he said, he asked the council to consider what is best for the city of Ann Arbor. Imposing such a moratorium in this manner at this time, he told the council, would be to discard the A2D2 process, and would override the city’s interest in developing its tax base and the redevelopment of the downtown core areas.

Stuart Gordon introduced himself as a member of the committee for the ice rink next to the downtown library. A moratorium, he told the council, would give the ice rink initiative the chance to flower and grow. It could possibly show the alternatives that might be explored with city-owned properties. He told the council that there is continuing community support for the ice rink and that businesses in the downtown area were continuing to come on board with the project. Similar projects were being undertaken in several cities in Michigan, he told the council. The committee would be soon generating a short report and financial analysis. He asked the council to guide the Ann Arbor DDA to sit down with the ice rink committee and to take it seriously.

During public commentary at the conclusion of the meeting, Alan Haber also spoke in support of establishing an ice rink on top of the Library Lane parking structure, next to the library.

Doug Kelbaugh, professor of architecture and urban planning at the University Michigan, told the council that he was a long-term and outspoken proponent of greater density downtown. He was addressing the city council in that context. The zoning code is very clear about its intent to have a buffer, or an interface zone, between D1 and residential zones – in order to avoid an abrupt, rude, and awkward adjacency. “It’s just plain good zoning,” he said.

Ann Arbor zoning. Darker red areas are zoned D1. Lighter brownish areas are zoned D2. A more limited core area is outlined in white, reflecting a suggestion by University of Michigan professor of architecture and urban planning Doug Kelbaugh.

There usually is such a transition, Kelbaugh continued, as D2 zoning or the university campus abuts D1 areas. The one major exception, he noted, had already been discussed that night – the north side of East Huron Street. It’s a troubling exception, he said, and a glaring one. He told the council that he wanted to focus on the edges of downtown.

Ann Arbor has an opportunity to have a well-defined downtown core, with crisp edges, rather than the usual loose checkerboard of most American downtowns, Kelbaugh told the council. If the D1 zone were limited to the “true inner core,” it would lend a distinctive character to the city’s center. He suggested specifically that the city institute a moratorium to reconsider the extent of the D1 zone. Personally and professionally, he said, he felt the city should consider containing the 180-foot high area within Maynard and William at one corner, and Ashley or First at Huron at the other corner. That would make for a very “legible core,” with existing and new tall buildings limited to the inside of it.

The existing code would allow for a 180-foot tall building right across the street from Hill Auditorium, across from the Ann Arbor Hands-on Museum, and right next to Nickels Arcade. That’s a pretty abrupt transition, he said. Instead of that, he said, the core area could be limited to 17 square blocks. That would allow the shaping of the city as a compact 24/7 core with more permanent residents of all ages, ethnicities, classes, income groups, and household sizes. That cluster would decrease the ecological footprint of the city, and add downtown vitality to attract the next generation of knowledge workers, who seem to want urban lifestyles, he said. Kelbaugh concluded by calling for surrounding the core completely with an interface to reinforce legibility and the normal build-up from leafy neighborhoods to vibrant downtowns.

Moratorium: Council Deliberations

The council held a closed session under the Michigan Open Meetings Act exemption that allows for material exempt from discussion or disclosure by state or federal statute, which presumably was attorney work product in connection with anticipated litigation in the event a moratorium was imposed.

Subsequent council deliberations were scant. Sabra Briere (Ward 1) moved for postponement based on the desire of Marcia Higgins (Ward 4) to be part of the deliberations. [Higgins was not able to attend the meeting due to a professional commitment.] Deliberations on a separate resolution, to reconvene the design guidelines task force, were similarly brief.

Outcome on moratorium: The council voted unanimously to postpone consideration of the moratorium until March 4, 2013.

Outcome on reconvening design guidelines task force: The council voted unanimously to postpone consideration of the resolution to reconvene the design guidelines task force until March 4, 2013.

City Apartments Parking Deck

The council was asked to approve a step necessary for the Ann Arbor Downtown Development Authority to satisfy its commitment to support the construction of the parking deck within Village Green’s City Apartments project. The residential project is currently under construction at the southeast corner of First and Washington.

The step the council was asked to take was to create a project budget for the proceeds of bonds sold by the city on Jan. 22, 2013 – $8,666,075 total, of which $4,079,743 were taxable and $4,586,332 were non-taxable. The authorization to issue the bonds had come at the council’s Oct. 4, 2010 meeting.

The DDA is committed to covering payments on the roughly $9 million of bonds to support construction of the bottom two floors of the building – which will hold about 240 parking spaces. Of those, 95 will be available for public use. The remainder of the spaces will be used by residents of the 146-unit project, when construction is completed. Before then, the deck will be handed over to the city and the DDA after a certificate of occupancy for the parking deck is received.

City Apartments project under construction in early February at First and Washington.

As of early February, the construction was on a pace that would result in a certificate of occupancy for the parking deck by March 15. The construction of the entire building is expected to be complete by the end of the summer.

City Apartments Parking Deck: Council Deliberations

Stephen Kunselman (Ward 3) wanted to know if the bonds would show up on the DDA’s annual TIF (tax increment finance) report as part of the DDA’s indebtedness. CFO Tom Crawford indicated that the city issues the debt and the DDA repays the city. So it won’t show on the DDA’s books as debt. It’ll show up as a commitment to repay.

Outcome: The council voted unanimously to establish the project budget.

Open Space Millage (Greenbelt) Issues

The council had two items on its Feb. 19 agenda related to spending proceeds from the city’s open space and parkland preservation millage.

For one of the items, the council was asked to approve applying for federal matching funds to help acquire development rights on two pieces of farmland outside the city. For another item, the council was asked to authorize the purchase of a parcel inside the city near the Bluffs Nature Area.

Open Space Millage: Farmland

For the two parcels outside the city, council was asked to approve applications for matching federal funds to purchase development rights – for the 72-acre Donald Drake Farm on Waters Road in Lodi Township, and for a 100-acre property owned by Carol Schumacher on Pleasant Lake Road in Lodi Township. The federal match is only up to $5,000 per acre.

At its Oct. 15, 2012 meeting, the council had given approval for the acquisition of development rights for the southern part of the Drake farm. On that occasion, the requested expenditure from millage funds amounted to $483,450. Of that amount, $23,867 went to cover costs related to closing, due diligence and a contribution to the greenbelt endowment. The total purchase price of the land was $549,478, with the city of Ann Arbor’s share supplemented by $109,895 from Washtenaw County parks & recreation and $1,000 from Lodi Township.

What the council approved on Feb. 19 for the Drake Farm was an application to the USDA Farm and Ranch Land Protection Program (FRPP) for matching funds to acquire development rights to the northern part of the farm. When the city failed to win an FRPP award for the farm as a whole last year, it divided the property – because the northern part is very suitable for agricultural production, and the city felt its chances were very good for winning an FRPP grant for just that portion of the farm. The Drake property had been mentioned recently at the Feb. 7, 2013 meeting of the city’s greenbelt advisory commission.

If the city wins the FRPP matching grants, the item will likely come before the city council in June.

Outcome: Without discussion, the council approved the FRPP grant applications.

Open Space Millage: Adjoining Bluffs Parcel

Inside the city, the council was asked to approve the $115,000 purchase of a roughly 0.357-acre piece of vacant land located at 1240 Orkney, with a current SEV (state equalized value) of $49,200. [SEV is based on 50% of market value.]

Map showing a parcel on Orkney proposed for acquisition by the city – the narrow parcel that’s highlighted in yellow.

The parcel is located immediately adjacent to the Bluffs Nature Area – in the north part of the city, near the confluence of North Main, M-14 and Huron River Drive. The parcel is intended to provide an additional access point to the nature area, from the west.

The total proposed appropriation of $128,000 in open space millage funds for purchasing the Orkney parcel included $3,000 in closing costs and $10,000 in due diligence. An environmental assessment would be done before the closing.

The proposed Orkney parcel acquisition is similar to one made last year for a parcel on Hampstead Lane immediately adjacent to the Kuebler Langford Nature Area. Like the Bluffs, Kuebler Langford is located in the northern part of the city. [.jpg of area showing cluster of nature areas in the city's north side] [.jpg image of map showing city-acquired parcel adjoining Kuebler Langford Nature Area]

The roughly 0.91-acre Hampstead Lane parcel was determined to have a fair market value of $110,000, with an additional $13,000 accounted for through closing costs and due diligence. The council authorized the acquisition of the Hampstead Lane parcel at its Oct. 15, 2012 meeting.

Open Space Millage: Adjoining Bluffs – Council Deliberations

Stephen Kunselman (Ward 3) objected to the purchase price, saying he didn’t think the assessment factored in the roughly $40,000 in utility connection charges that would apply to the parcel as developable land. If those charges were added in, Kunselman said, the total cost of the land would work out to $155,000 – which he did not believe reflected an amount a buyer would be willing to pay. So he thought the $115,000 purchase price was too high. [The council had debated the utility connection charges just recently, at its Jan. 22, 2013 meeting.]

Kunselman felt that the property was simply too expensive to acquire just to provide additional access. He wouldn’t support the city’s purchase of the property unless it came down in price to accommodate the utility improvement charges. Sally Petersen (Ward 2) asked if the park advisory commission’s land acquisition committee had looked at it. Mike Anglin (Ward 5), who serves as one of two city council liaisons to PAC, indicated that it had, in fact, been considered.

With respect to better access to the area, mayor John Hieftje said his concern is that access to the Bluffs Nature Area through the parcel wouldn’t be used except by people in that neighborhood. Sumedh Bahl, the city’s community services area administrator, confirmed that there’s no parking available, and that visitors to the nature area who’d get access through the parcel would need to park along the street.

Left to right: Stephen Kunselman (Ward 3) and local attorney Scott Munzel.

Jane Lumm (Ward 2) noted that entrances already exist on three sides of the area, and some citizens have questioned the need for a fourth one – especially given the high cost. She asked Bahl to help her work through the rationale. Lumm said she’d heard from neighbors that they hadn’t been notified about the pending purchase. She felt that notification of neighbors would have been a normal step. Bahl told Lumm that the city doesn’t normally notify neighbors about pending land acquisition. [Land acquisition is a topic that can be discussed in closed session under Michigan's Open Meetings Act.]

Sabra Briere (Ward 1) said she remembered when the city was looking for ways to access the Bluffs other than from the Main Street side, the Orkney lot was identified, because it’s been used as informal access for years. She said that $115,000 is comparable in price to other unimproved lots in the area. The price itself didn’t bother her, but she found herself thinking about how useful it really is to have a small entrance to the nature area from a limited neighborhood. She wanted to understand why this is value. She described getting to the Bluffs Nature Area as “difficult and obscure.” But the city’s ownership of this parcel doesn’t help that, she felt. Why did PAC’s land acquisition committee feel the city ought to acquire this parcel as an entrance? Bahl indicated he had not been a part of all of LAC’s discussion, but that having access from all sides of the area had been a long-time goal.

Margie Teall (Ward 4) inquired if there’s a possibility of using the parcel as a parking area. Bahl said that could be considered. Teall ventured that she’d like to see the matter postponed.

Kunselman reiterated his objection based on the cost, and asked that the council be provided a copy of the appraisal. Hieftje indicated his view that a professional appraiser would have factored in the cost of utility connections. He went on to say that he was familiar with the neighborhood, and ventured that the value of property was legitimately high.

Outcome: The council voted unanimously to postpone the vote on the Orkney property until March 4.

Plymouth Retail Zoning

The council was asked to give initial approval for the rezoning of land that would allow a proposed retail development at 3600 Plymouth Road, just west of US-23.

The change would rezone the parcel from R5 (motel-hotel district) to C3 (fringe commercial district). That followed a recommendation of approval given at the Jan. 15, 2013 meeting of the Ann Arbor planning commission. The project – called The Shoppes at 3600 – had been postponed by the commission on Nov. 7, 2012.

Aerial view of a proposed retail development on Plymouth Road west of US-23 – The Shoppes at 3600. The site is in the complex where the Holiday Inn North Campus is located, visible on the right side of this image.

But on Jan. 15, commissioners recommended that the city council approve the project’s zoning, as well as the original site plan. At its Feb. 19 meeting, the city council did not have the site plan on its agenda – only the rezoning request.

The site is located in the same complex as the Holiday Inn North Campus. Responding to some commissioner concerns voiced at the November 2012 meeting, the developer had provided planning commissioners an alternative site plan that they reviewed on Jan. 15. But the developer sought approval for the original layout. The owner is listed as Ann Arbor Farms Hotel Corp., with property being developed by Diverse Development in Holland, Ohio.

The developer hopes to build 9,490-square foot, one-story retail building, to be constructed in what’s now the parking lot and front yard for the hotel, at an estimated cost of $1 million. The building would have space for several businesses, including a restaurant with a one-lane drive-through window and outdoor seating. An existing shared driveway off of Plymouth Road would be used to access the site. The original site plan calls for 33 parking spots and four covered bike parking spots near the entrance.

The planning commission’s recommendation of site plan approval was contingent on four conditions: (1) approval of a land division, to divide off a 1.15 acre parcel from the parking lot and front yard of the 10.85-acre hotel site where the Holiday Inn North Campus is located; (2) approval of an administrative amendment to the parent site plan to change the parking for the hotel, because some spaces will be removed to allow for the new building; (3) recording an ingress/egress easement along the existing drive from Plymouth Road, so that a new curb cut would not be needed; and (4) recording stormwater and cross-parking easements between the hotel and the new building.

The site plan will be considered by the council at a later date.

Plymouth Retail Zoning: Council Deliberations

Sally Petersen (Ward 2) asked about the turning pattern within the combined parking lot contiguous with the development, saying she was worried about how the new development would impact congestion within the parking lot. City planning manager Wendy Rampson told Petersen that the city doesn’t have standards related to interior drives, but when the city reviews site plans, the planning staff looks for continuity, pedestrian connections and the like. The city’s traffic engineer had taken a look at the traffic study. The petitioner had proposed adding signs, so that as someone exits the small shopping center, if a motorist wanted to go westbound on Plymouth, the sign would indicate that motorists should head toward Green Road – northbound Green could be used to turn left onto westbound Plymouth.

Left to right: Ward 2 councilmembers Sally Petersen and Jane Lumm.

Jane Lumm (Ward 2) asked about possible congestion at Green and Plymouth roads. Rampson replied that the traffic study indicated an additional four-second delay associated with the new retail development and that congestion would be limited. Lumm confirmed with Rampson that the city’s SCOOT (Split Cycle Offset Optimisation Technique) traffic signal system can adjust to help traffic flow. Rampson indicated that if you wanted to eliminate congestion at the intersection entirely, it would be necessary to add turn lanes.

Stephen Kunselman (Ward 3) confirmed with Rampson that there’s a drive-through lane that goes behind the buildings. Given the parking in front of the buildings, Kunselman wanted to know where deliveries would take place. Rampson reported that deliveries would be made by small panel trucks, and they’d arrive early in the morning, and would park in the parking lot.

Kunselman felt the development seemed “very constrained.” It looked very difficult, he said. Rampson replied that the planning commission had similar concerns, and had asked for an alternate site plan that rotated the stores so that they fronted on the freeway ramp. A number of problems arose with that alternative, she said. In the end, based on the developer’s concern, the proposal that’s moving forward is the original one.

Responding to a question from Kunselman, Rampson explained that if the council approves the rezoning, then the owner would create a separate parcel within the lot. Kunselman concluded that the owner could come up with an alternate configuration. So he stated he would not support the rezoning.

Petersen asked about a berm that exists now. Rampson explained that it would be regraded for the proposed development. Rampson explained that there would be a net loss of parking in that area.

Outcome: The council gave initial approval to the rezoning. Voting against the rezoning on the initial vote was Stephen Kunselman (Ward 3). The rezoning will require a second and final vote by the council to be enacted.

Ann Arbor Hills Zoning Tweak

The council was asked to give final approval to the rezoning of six parcels in the northeast Ann Arbor Hills neighborhood.

The sites were rezoned from R1B to R1C. Both are types of single-family dwelling districts. The locations are 2014 Geddes Ave.; 2024 Geddes Ave.; 520 Onondaga St.; 2025 Seneca Ave.; 2023 Seneca Ave.; and 2019 Seneca Ave. [.jpg aerial view of parcels] These are six parcels in a block of 10 sites – the other four sites are already zoned R1C.

The rezoning would potentially allow three of the parcels – each lot size currently about 17,500 square feet – to be divided in the future, if other city code requirements are met.

Initial approval had been given by the council on Jan. 22, 2013. Prior to that, the city’s planning commission had recommended the rezoning at its Nov. 20, 2012 meeting. The planning commission had considered the item after the city council directed the planning staff to study the issue of rezoning the parcels. That direction came at the council’s Sept. 17, 2012 meeting.

According to a staff memo, the direction on the rezoning came from city council at the request of property owners: Raymond Maturo and Ann Mulhern; Joseph and Suzanne Upton; Rishindra and Gwendolyn Reddy; Shahrzad Vazirzadeh and Chad Patterson; Vassilios Lambropoulos and Artemis Leontis; and the Clan Crawford Jr. Trust.

R1B zoning requires a minimum lot size of 10,000 square feet and a minimum lot width of 70 feet. Three of the parcels don’t conform with that zoning. Under the new R1C zoning, all parcels conform with required lot size and width.

Ann Arbor Hills Zoning: Public Hearing

Thomas Partridge introduced himself as a recent candidate for the Michigan state senate and house of representatives, and an advocate for the most vulnerable residents. He asked that the council reconsider the rezoning proposal and amend it – along with all other similar rezoning or annexation proposals – to require that for every acre of land that gains rezoning approval, if it enhances the property value of the lot, then an equal amount of land be dedicated to affordable housing.

Outcome: Without further discussion, the council unanimously approved the rezoning request.

721 N. Main Building: $30K Study

The council was asked to authorize $30,000 for a physical study of the building at the city-owed 721 N. Main property. The money is to be drawn from the city’s general fund balance.

A task force established by the city council on May 7, 2012 has been working to develop recommendations for a much broader area than 721 N. Main, including the North Main corridor and extending to the Huron River. The task force is supposed to provide recommendations for the area by July 31, 2013.

A map showing recommendations for the city-owned property at 721 N. Main St.

But the task force has been asked to provide recommendations on the 721 N. Main property even earlier than that – because of application deadlines for grants that the city is interested in seeking. The two grants would be from the Michigan Natural Resources Trust Fund, which has an early April deadline, and the Connecting Communities grant from the Washtenaw County parks & recreation commission. The city’s $300,000 proposal to Connecting Communities – for trails to be constructed through the 721 N. Main property – was mentioned at the Feb. 12, 2013 meeting of the county’s parks & recreation commission. The Connecting Communities application had a deadline in December 2012, which the city met.

The task force submitted its initial recommendation on the 721 N. Main property to the city council in December, and based on that, the council approved making the two grant applications at its Dec. 17, 2012 meeting.

And at the council’s Jan. 7, 2013 meeting, two members of the North Main and Huron River Corridor task force – David Santacroce and Darren McKinnon – gave a presentation to the council summarizing the group’s work to date. The task force recommendations were divided into the floodway portion and the non-floodway portion of the site. For the floodway portion, there was not a lot to decide – because a city council resolution from Aug. 15, 2005 calls for the floodway area of the 721 N. Main site to be included within a planned Allen Creek greenway.

For the roughly 2.5 acre non-floodway portion, the task force is recommending that it be developed to include non-motorized paths to connect from Felch Street to North Main and West Summit streets.

Santacroce and McKinnon told the council during their January presentation that the task force thought the main building had potential for reuse, but that it would need about $30,000 of physical testing to make that determination. It was that $30,000 of testing that the council was asked to authorize at its Feb. 19 meeting. The physical testing is supposed to be completed by May 31, which gives the task force two months of lead time before their final recommendations are due.

At the council’s Jan. 7 meeting, Jane Lumm (Ward 2) had expressed a lack of enthusiasm for salvaging the building.

The city is undertaking similar physical testing on buildings that stand on another potential city-owned greenway property, at 415 W. Washington. At the council’s Dec. 17, 2012 meeting, an additional $32,583 for the study of 415 W. Washington property was allocated. The council had previously authorized $50,000 for physical testing of the property. That vote had come at the council’s July 16, 2012 meeting.

The 415 W. Washington property, with its three buildings, was previously used by the city as a vehicle maintenance facility, before the construction of the Wheeler Service Center south of town on Stone School Road.

721 N. Main: Council Deliberations

Sabra Briere (Ward 1) noted that the property at 721 N. Main was previously part of the city maintenance yard, where trucks would pull in and out. There’s no way to know what it might cost to refurbish the building there, Briere said. But it’s known that there’s asbestos. Later, mayor John Hieftje added that the asbestos is visible. Briere reported that the task force believes that before demolishing the building, it’s worth exploring what it would cost to make the building usable again. Briere indicated it’s similar to the approach the city is taking at 415 W. Washington.

Hieftje said he appreciated the work done by the task force. He’d toured the building and described it as not fit for habitation. Mike Anglin (Ward 5) thanked Briere for her leadership on the topic. He described the work as reflective of a long-term desire on the part of the community to see the property become a greenway.

Outcome: The council voted unanimously to approve the $30,000 allocation for the physical testing of the building at 721 N. Main.

Former Near North Demolition

The council was asked to receive formally an additional $96,000 through federal Community Development Block Grant (CDBG) allocations, which the city will put toward demolishing six houses on North Main Street.

The houses are on the site of the former Near North affordable housing project. That project, on which the nonprofit Avalon Housing had partnered, ultimately did not go forward. The city must complete the demolition by March 15, 2013.

The additional $96,000 can only be used for the demolition of structures at 700-724 N. Main.

Council deliberations were brief. Sabra Briere (Ward 1) said she felt that many in the neighborhood were eager to see the demolition occur. She thanked the staff for an innovative solution to pay for it. Mayor John Hieftje added that he had been pushing to get those houses down for a long time, but he didn’t feel as bad about the wait, now that the grant has been received. It would preserve some of the city’s funds that were reserved for the specific purpose of demolishing nuisance properties.

Outcome: The council unanimously approved the receipt of the additional $96,000 in grant funding.

Sustainability Framework

The council was asked to adopt a sustainability framework that had previously been adopted by the city planning commission, making it a part of the city’s master plan. The planning commission had taken action at its Jan. 3, 2013 meeting. The vote by the planning commissioners was unanimous.

The item had originally been on the planning commission’s Dec. 4, 2012 agenda. Action was postponed at that time, after some commissioners raised concerns regarding a goal for high-performance buildings.

The city has been developing this framework for nearly two years. In June of 2012, the planning commission had recommended approval of the 16 overarching sustainability goals, which are organized into four categories: resource management; land use and access; climate and energy; and community. In September, commissioners voted to disseminate the framework to neighboring jurisdictions, which was a necessary step on the path toward including it in the city’s master plan.

Additional background on the Ann Arbor sustainability initiative is on the city’s website. See also Chronicle coverage: “Building a Sustainable Ann Arbor,” “Sustaining Ann Arbor’s Environmental Quality,” “Land Use, Transit Factor Into Sustainability,” and “Final Forum: What Sustains Community?”

The sustainability framework is the seventh element of the city’s master plan. Other elements are: (1) land use; (2) downtown plan; (3) transportation plan; (4) non-motorized plan; (5) parks and recreation open space (PROS) plan; and (6) natural features master plan.

Sustainability Framework: Public Hearing

Thomas Partridge called on the council to redefine environmentalism and sustainability and told them the top priority has to be ending homelessness. He called for socially integrated housing.

When no one else rose to speak during the public hearing, Alan Haber came out of the audience to say that he felt more than one person should speak at a public hearing on a topic this important. He said he was glad the proposal was coming forward – especially in the context of climate change. He called “sustainable development” a bit of an oxymoron, saying that development has to be done in such a way that does not increase the land value so much that the people who live and work here now can’t continue to live and work here. Things have to remain “inviting” to those who are here already, he said. He also called for a gathering place in the center of town, which he said would add to the sustainability of the city.

Sustainability Framework: Council Deliberations

Jane Lumm (Ward 2) asked about a language revision on the definition of sustainable buildings and respecting human contexts. She wanted to know if there were any other major themes that surfaced in the public hearings. Planning manager Wendy Rampson indicated that there were few comments at the public hearings, because it had been such a robust process that had led up to that point. Mayor John Hieftje clarified that a public hearing had been held, but nobody appeared from the public to speak. Rampson quipped that everyone was ready to move on to the action plan.

Lumm also confirmed that no comments had been received from adjoining communities. Rampson ventured that if other communities begin adopting similar frameworks, then it would be clear that they wanted to imitate it.

Outcome: The council voted unanimously to adopt the sustainability framework.

Clean Energy Bonds (PACE)

The council was asked to approve the issuance of bonds that will assist owners of commercial property in making improvements designed to help save energy under the city’s property assessed clean energy (PACE) program. The item had been postponed by the council on Feb. 4, 2013. That initial decision to postpone stemmed from the fact that the item had not been added to the agenda until the day of the Feb. 4 meeting.

The sale of up to $1 million in bonds will support energy improvements to be undertaken by five property owners. In broad strokes, the PACE program is enabled by state legislation – the Property Assessed Clean Energy Act 270 of 2010. Property owners take out loans to make energy improvements to be repaid through regular installments as part of their taxes. Municipalities like the city of Ann Arbor administer the program. More than a year ago, on Jan. 9, 2012, the city council set the fees for participation in the program. Prior to that, on March 7, 2011, the city set up a loan loss fund with about $430,000 granted by the U.S. Department of Energy.

Properties for which owners have applied for improvements under Ann Arbor’s PACE program include: (1) Arrowwood (2566 Arrowwood Trail) for new HVAC equipment, insulation, occupancy sensors and lighting upgrade for the clubhouse; exterior lighting upgrade to LED; and solar shingles on one apartment building; (2) Big Boy (3611 Plymouth Road) for HVAC upgrade, lighting upgrade, cooking equipment replacement with energy efficient equipment, and controls; (3) Bivouac (330-336 S. State) for interior lighting upgrade; (4) Goodyear Building (118-124 S. Main) for HVAC replacement (boilers and A/C units), and lighting upgrade; and (5) Kerrytown Market & Shoppes (403 N. Fifth Ave.) for lighting upgrades in tenant areas and common areas.

PACE: Council Deliberations

Referring to the couple of years leading up to the enabling legislation by the state, Sabra Briere (Ward 1) described the city as hopeful that PACE funding would be available for single-family homes, in addition to commercial properties. While the city waits for legislation that would make it possible for single-family homes, she was pleased that the city could offer a program for commercial properties. It’s potentially one of the most effective ways to decrease the city’s energy footprint, she said, without costing property owners an incredible amount of money to get started.

Mayor John Hieftje characterized the council’s action as another step in a very long process. He described how the window of opportunity for the city’s stop loss load fund was set to expire next month, so it was important the council act. Hieftje picked up on Briere’s point about single-family homes, attributing the problem to the fact that Fannie Mae lenders didn’t want to be second in line if there were to be a foreclosure. He pointed out that PACE does apply to multi-family housing units.

Outcome: The council unanimously approved issuing the PACE bonds.

Living Wage Ordinance Changes

Consideration of several amendments to Ann Arbor’s living wage ordinance was back on the council’s agenda, because at its Nov. 19, 2012 meeting the council had specified Feb. 19 as the date to which it would postpone consideration of the ordinance changes.

The main proposed changes to the local law – which sets a minimum wage of $12.17/hour for those employers providing health insurance and $13.57/hour for those not providing health insurance – would exempt nonprofits that receive funding from the city for human services work. The changes would mean that such nonprofits would not need to meet the minimum wage requirements.

Following the council’s Nov. 19 postponement, consideration of the changes had been referred to the city’s Housing and Human Services Advisory Board (HHSAB) for more study. [For coverage of the HHSAB's Dec. 18, 2012 meeting, see: "Human Services Group Ponders Living Wage"] The HHSAB is taking a bit longer with its recommendations in part because those recommendations will be informed by work done by a class of University of Michigan students. The class is being taught in the winter 2013 term by Ian Robinson, a lecturer in the department of sociology. Robinson attended the Dec. 18 meeting of the HHSAB, and sketched out the range of work he thought his students might be able to do to assist the board.

The current law applies to organizations that have contracts with the city for more than $10,000 in a given calendar year, and that employ five or more people (10 or more for nonprofits). The current law also provides an exemption for organizations funded from the city’s community events budget – an exemption put in place to accommodate the Ann Arbor Summer Festival’s practice of paying its temporary employees less than the living wage and the city’s desire to fund the festival at a higher level.

Among the other contemplated amendments to the living wage ordinance was an increase from $10,000 to $25,000 for the amount of a contract triggering the application of the ordinance. The timeframe would also change from a calendar year to one fiscal year. Also included in the proposed amendments was one that would allow the city administrator to grant a waiver from compliance with the ordinance, instead of requiring the approval of the city council.

At its meeting on Nov. 8, 2012, the council had granted such a waiver to the nonprofit Community Action Network, which receives funding from the city to do human services work.

Living Wage Ordinance Changes: Council Deliberations

Jane Lumm (Ward 2), who serves as one of two city council liaisons to the housing and human services advisory board (HHSAB), led off discussion on the item. [Sabra Briere (Ward 1) is the other council liaison to HHSAB.]

Lumm said there’s not a consensus on HHSAB about whether the amendments should move forward along the lines currently proposed, so she thought it should be tabled. [A tabling motion is different from a motion to postpone to a date certain. If a matter is tabled, then it can be considered at any time in the future with a motion to take up the matter off the table – but it need not be taken up again. If a matter is postponed to a date certain, then it is automatically taken up on the date specified. A motion to table, according to Robert's Rules, is properly invoked when some other matter "of immediate urgency" has arisen, so that the other matter can be handled first. A motion to take the tabled matter up off the table can then come during the same session. If it's the desire of the body to kill the matter, without voting it up or down, then the proper motion is to postpone it indefinitely. A motion to table is also not supposed to be subject to debate.]

Chuck Warpehoski (Ward 5) asked if this was a motion to postpone the matter indefinitely. City attorney Stephen Postema indicated his view that a tabling motion would have the effect of indefinite postponement.

Sabra Briere (Ward 1) noted that a matter that’s tabled has a finite period during which it can be taken up off the table, and after that it’s considered demised. Mayor John Hieftje stated the finite time period was one year. [According to the council's rules, the period specified for the demise of resolutions or for an ordinance approved at first reading is six months. The living wage ordinance before the council was being considered for its first reading.]

Stephen Kunselman (Ward 3) asked if there was an expectation that HHSAB would make some kind of recommendation – because he was interested in seeing at least a few procedural changes made to the living wage ordinance. Lumm told Kunselman that HHSAB might make some recommendations. But she ventured that the changes to the ordinance that HHSAB might eventually recommend would be a 180-degree change in direction – broadening the ordinance’s application instead of limiting it.

Lumm said she was not willing to bring to the council the kind of amendments that HHSAB is contemplating now. Anything that she would support would at least resemble the amendments that were in front of the council that night. Lumm ventured that maybe Briere would introduce a different recommendation from HHSAB – but knowing what HHSAB is contemplating, Lumm herself would not bring it forward.

Kunselman said he would hate to see it “die in committee.” He didn’t know if there’s a fire under HHSAB to make a recommendation. Kunselman expressed his view that he’d like to see a change in the ordinance so that a waiver can be given to a nonprofit organization by the city administrator, instead of requiring city council approval.

Briere told Kunselman that HHSAB was focused on the opportunity to undertake a broader study of nonprofits – those that receive funding from the city as well as those that don’t. She ventured that some members of HHSAB were concerned that the living wage ordinance should actually be the purview of the human rights commission. Briere characterized the last meeting of the HSSAB, in January, as lively and not unanimous. But she ventured that there was “gentle agreement” that the study of the effects of living wage on nonprofits was important. Briere said it should be complete by the end of April.

Kunselman, felt that any revision to the living wage ordinance should be something that’s ready to go by the time the council adopts the budget [by the second meeting in May]. He wondered if a resolution of direction to the HHSAB would help that. He stated that he’s willing to help, but said he’s not familiar with what’s going on at HHSAB.

Lumm told Kunselman that there was strong sentiment expressed by HHSAB members to study other aspects of the ordinance outside of HHSAB’s purview and more in line with the purview of the human rights commission. Lumm ventured that the majority of HHSAB members expressed some interest in revisiting the policy and requiring that the city pay a living wage to its own part-time and seasonal workers, as well as eliminating the exemption for those organizations that are funded from the community events fund [like the Summer Festival].

Outcome: The council voted unanimously to table the living wage ordinance revision.

Ann Arbor Airport Fencing

The council was asked to consider two items related to fencing at the Ann Arbor municipal airport. The first item consisted of a grant approval, which totaled $157,895. Of that amount, $150,000 is federal money, $3,947 comes from the state of Michigan, and $3,948 comes from the city airport’s operating budget.

The fencing is meant to improve safety. According to the staff memo accompanying the council’s resolution, three incursions (someone getting in a restricted area of the airfield) took place in 2012. Before those three incursions, none had taken place since 2009.

The second vote was on a $32,000 contract with URS Corp. for engineering services related to the gate and fencing project. Funding for the contract is covered in the grant that was also on the Feb. 19 council agenda. The scope of the project includes installation of two new gate locations, the replacement of two existing gates, the upgrade of an existing gate location, upgrade of existing security fencing and the installation of new security fencing in the three hangar areas of the airport.

Ann Arbor Airport Fencing: Council Deliberations

Chuck Warpehoski (Ward 5) got clarification from fleet and facilities manger Matt Kulhanek that there was no eight-vote majority needed on the items because they did not reflect a budget adjustment. Stephen Kunselman (Ward 3) asked if there was no fencing currently. Kulhanek explained that two new gates would be installed in the northeast area of the airport. Three existing gates would be replaced. Kunselman wanted to know how that would prevent incursions.

Kulhanek described on incursion where an elderly woman was heading north on State Street, looking for Costco. And instead of turning on Ellsworth, she turned onto the airport property. She drove through the northeast hangar area, followed a vehicle through another gate and ended up pulling out onto an active taxiway.

Kulhanek characterized the city’s share as 2.5% of the total project. Kulhanek confirmed that the federal money comes from fees paid on airline tickets, not general tax dollars.

About the contract for the fencing installation, Sabra Briere (Ward 1) quipped: “It’s always good to get money and spend it immediately.”

Outcome: The council’s votes on the grant and the contract related to airport fencing were unanimous.

Communications and Comment

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

Comm/Comm: Public Art Ordinance Revision

Sabra Briere (Ward 1) gave the council an update on the work of a city council task force that was assigned to review and make recommendations on the city’s public art ordinance. [Besides Briere, the group consists of councilmembers Sally Petersen (Ward 2) Stephen Kunselman (Ward 3), Margie Teall (Ward 4) and Christopher Taylor (Ward 3). They'd been appointed at the city council's Dec. 3, 2012 meeting, when the council also voted to halt the spending of funds accumulated through Ann Arbor's Percent for Art program – except for projects that are already underway. The moratorium on spending lasts until April 1, 2013.]

The council’s resolution had not included a date in writing by which the task force was supposed to complete its work. But in making the appointments to the task force, mayor John Hieftje had indicated a date of Feb. 15. Briere reported that a draft resolution was now in the hands of the city attorney’s office. The task force would be meeting again on March 1, Briere said. [For the most recent Chronicle update on the activity of the task force, see the Jan. 23, 2013 meeting report of the public art commission.]

Briere characterized the issues addressed by the task force as including how and where public art should be placed, as well as changes to the funding mechanism. The task force is looking at ways to fund art that could include temporary art, publicly selected art, art the public helps to pay for, or performance art. The task force is working with language that would eliminate the “percent for art” funding mechanism, but would still allow capital improvement projects to have public art associated with the project as a “baked-in” ingredient.

Briere indicated that she hoped an ordinance change would be in front of the council by the end of March. [The council's second of two meetings that month falls on March 18.] She also indicated that a resolution separate from the ordinance change would also be brought forward, which she said would include additional guidance.

Comm/Comm: DDA Ordinance Amendments

Stephen Kunselman (Ward 3) announced that he now has a draft version of the ordinance amendments he’d mentioned at the council’s Feb. 4, 2013 meeting, regarding the Ann Arbor Downtown Development Authority.

He asked that the city clerk add the draft to the city’s online Legistar system for the Feb. 19 meeting. He’d be looking for co-sponsors, he said.

Among the revisions to the DDA ordinance Kunselman reflected in the draft are changes to the DDA governance, which would include term limits on board members, and a prohibition against elected officials serving on the board. But more significantly, Kunselman is proposing to change the way that the tax increment finance (TIF) capture by the DDA is calculated. The draft language leaves the issue still somewhat unclear. [.pdf of draft amendment to the DDA ordinance]

Comm/Comm: Housing Commission, CIP

During communications time, Kunselman conveyed his desire to see the properties of the Ann Arbor Housing Commission (AAHC) included in the city’s capital improvements plan (CIP). That came in the context of a presentation the council had recently received from AAHC executive director Jennifer L. Hall, who’s proposing a private-public partnership to address capital improvement needs for AAHC properties. Kunselman has expressed opposition to Hall’s proposal. [For background on the AAHC's efforts, see: "Housing Commission Selects Co-Developer."]

Comm/Comm: Taxicabs

Kunselman indicated that the Feb. 28 meeting of the city’s taxicab board – which he chairs – would include an update to the public about increased enforcement of the taxicab ordinance. He’s looking to see if any other changes can be made to the taxicab ordinance to make the taxi industry more responsive to the needs of the community. [For recent coverage of the taxicab board, see: "Ann Arbor Taxicab Board Grants Appeal."]

Comm/Comm: Former Y Lot

Kunselman also indicated that he’d be requesting brokerage services for the sale of the former Y lot at Fifth and William. Mayor John Hieftje indicated that he wanted to look at what could be included as an offer, but leave the property as unencumbered as possible.

Comm/Comm: Human Rights Commission

Sumi Kailasapathy (Ward 1) noted that the city’s human rights commission is looking for additional members.

Comm/Comm: Anglin, WALLY

During communications from council, Mike Anglin (Ward 5) said that his name has been mentioned as someone who is a supporter of the WALLY north-south commuter rail project. [The project currently has a funded study for station location design]. Anglin said information was being publicly distributed to the effect that he’s a supporter of WALLY and that people should contact him about it. Anglin indicated he did not support WALLY, but was very much in favor of the Ann Arbor Transportation Authority’s bus system, saying that rail was “foolhardy at this time.” He wanted to stop discussion of funding rail transportation until people accept the public transportation that already exists.

Comm/Comm: Ward 2 Website

During communications time, Sally Petersen (Ward 2) alerted people that she and Jane Lumm (Ward 2) had created a website for Ann Arbor’s Ward 2. Anyone is welcome to visit it, she said, and there’s a link to a Ward 2 resident satisfaction survey. She encouraged people to take the survey, especially residents of Ward 2.

Comm/Comm: Aging Conference

During communications time, Sabra Briere (Ward 1) noted that she’d placed a flyer on her council colleagues’ seats about the AARP’s Age Friendly Communities Conference, which takes place on Feb. 28 in Ann Arbor.

Comm/Comm: Israel/Palestine

Henry Herskovitz responded to some remarks that Chuck Warpehoski (Ward 5) made at the council’s Jan. 22, 2013 meeting. Warpehoski had indicated he wouldn’t be contemplating a resolution on Palestinian rights as long as demonstrations continue outside Beth Israel on Saturdays during worship services. Herskovitz asked whether Warpehoski’s remarks contained elements of a “friendly offer” or a possible quid pro quo from Herskovitz’s group – Jewish Witnesses for Peace and Friends – to cease their demonstrations at Beth Israel. He contended that Warpehoski’s comment contains an “odd element” – because it recognizes that a problem exists in Palestine, which Warpehoski could, or would, act on as an elected official. So Herskovitz concluded that Warpehoski was not saying that the city shouldn’t divest from Israel, or that there are no grounds for divestment – only that Warpehoski is conditioning his action on the actions of Herskovitz’s group.

Herskovitz drew an analogy to the abolitionist movement in the 1800s, as John Brown conducted violent raids against pro-slavery interests. Some in the abolitionist movement decried Brown’s tactics, but they did not allow Brown’s actions to distract them from their goal of abolishing slavery, Herskovitz said. The situation in Palestine cries out for moral intervention, he said. But based on Warpehoski’s remarks, it appears that intervention will not take place until Herskovitz’s group stops expressing its point of view – in a manner that is protected by the First Amendment. Herskovitz allowed that it’s difficult for Warpehoski to accept his group’s tactics. But allowing the actions of another to determine one’s own actions, Herskovitz said, raises doubts about that person’s reasoning and commitment to resolving the issue.

Comm/Comm: General Criticism

Thomas Partridge introduced himself as a resident of Washtenaw County and Ann Arbor’s Ward 5. He noted that he been a recent candidate for the Michigan senate and house of representatives. He called for ending discrimination and corruption in the Ann Arbor city government.

Present: Jane Lumm, Mike Anglin, Margie Teall, Sabra Briere, Sumi Kailasapathy, Sally Petersen, Stephen Kunselman, John Hieftje, Chuck Warpehoski.

Present: Marcia Higgins, Christopher Taylor.

Next council meeting: Monday, March 4, 2013 at 7 p.m. in the council chambers at 301 E. Huron. [Check Chronicle listings to confirm date.]

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At the same Feb. 19 meeting, the council also postponed a resolution that called for reconvening the downtown design guidelines task force to review and make recommendations to city council regarding improvements to the design review process. Currently, developers must follow a mandatory process of review for downtown projects, but are not required to comply with the board’s recommendations. The resolution was added to the agenda about an hour before the meeting started. Members of the task force mentioned in the resolution are: Marcia Higgins (Ward 4 city council), Tamara Burns (architect), Dick Mitchell (architect), Bill Kinley (construction contractor), Norm Tyler (architect), Kirk Westphal (planning commission chair), and Doug Kelbaugh (University of Michigan professor of architecture and urban planning).

But it’s the possible moratorium that has drawn the most interest, because of developments that are already in the approval process – including a controversial project at 413 E. Huron. Under the proposed moratorium, that project would not be allowed to move forward, because its site plan did not receive a recommendation of approval from the city’s planning commission. However, the wording of the resolution provides for exemptions for site plans that have already received the planning commission’s recommendation of approval.

Specifically, the wording in the resolution means that the moratorium would not apply to the 624 Church St. project, which received a recommendation of approval from the city planning commission on Jan. 15, 2013. That project is expected to be considered by the city council at its March 4 meeting. The 14-story 624 Church St. project would offer 75 apartments with a total of about 175 bedrooms. Local attorney Scott Munzel, who represents the developer on the project, attended the council’s Sunday night caucus to get clarification on that point.

The moratorium also would not impact Kerrytown Place, a proposed development on North Main – the site of the former Greek Orthodox church – that’s zoned D2. Kerrytown Place consists of three 3-4 story buildings with a total of 19 units. The project is scheduled for consideration by the city’s design review board on Feb. 20.

Based on the wording in the resolution, the moratorium would apply to the 413 E. Huron project, which recently failed to gain a recommendation of approval from the city planning commission, and could be on a city council agenda as early as mid-March. That project is located on a site zoned D1, the highest density allowed in the city.

The council’s Feb. 19 meeting featured public commentary from several people in support of the moratorium. Attorneys for the developer of 413 E. Huron also addressed the council, saying that if the moratorium were to be imposed, their client would look to exercise his legal rights.

The council’s resolution also would direct the planning commission to use part of the period of the moratorium to review recently approved and recommended site plans in the D1-zoned areas. The point of the review would be to determine if zoning standards provide appropriate guidance on form and use, and if the zoning conforms to the city’s master plan, downtown plan and character district overlays. The resolution states that the planning commission is to complete its work by June 4 (its first meeting in June) and the council is supposed to take any action by Aug. 19 (its second meeting in August).

The memo accompanying the resolution notes that an initial review of the relatively new A2D2 zoning, enacted in 2009, was supposed to take place after one year. But in that first year no projects had been proposed – because of the economic downturn. Since then, however, the memo points to four projects that have been proposed in D1 areas: Zaragon West (built), The Varsity (under construction), 624 Church Street (proposed) and 413 E. Huron (proposed).

The moratorium was considered at the first council meeting after the city planning commission took action on a site plan for 413 E. Huron – a proposed 14-story, 271,855-square-foot apartment building with 533 bedrooms, marketed primarily to university students. The determination of the planning staff was that the project met the D1 zoning requirements, which in that part of the city include a height limit of 150 feet.

However, the outcome of the planning commission’s vote on Feb. 4, 2013 was not a recommendation for approval, because the 5-3 tally in favor did not give the project the required six-vote majority.

The planning commission vote came after long and harsh criticism during the public hearing on the 413 E. Huron site plan – at the two meetings when the planning commission deliberated on the proposal. Some residents called for a rezoning of the parcel, saying it was inappropriate for that area. The D1 zoning had been part of the A2D2 rezoning package for the downtown, which the council approved at its Nov. 16, 2009 meeting.

But even without a planning commission recommendation, a developer has the option of bringing a site plan proposal for consideration by the city council, which the 413 E. Huron developer intends to do.

The resolution to establish a moratorium was brought forward by Ward 1 councilmember Sabra Briere and was co-sponsored by Stephen Kunselman (Ward 3). Briere sits on the city planning commission as the council’s representative, and voted as a planning commissioner against the 413 E. Huron project. Joining her in that three-vote dissent were Wendy Woods and Ken Clein.

The council’s dilemma with respect to 413 E. Huron relates to the parcel’s zoning, which many residents contend was inappropriately zoned as D1. Opponents of the project argue that the site should have been zoned D2 (interface), in order to provide a buffer between densely developed areas and neighboring residential areas.

Last year, on April 16, 2012, the city council was asked to contemplate the reverse scenario, when a developer asked for conditional rezoning of a parcel at 1320 S. University – to change its 2009 designation of D2 to D1. The requested D1 zoning would have allowed for a much denser project, which would have exceeded the 60-foot D2 height limit by 85 feet. The council rejected that request. On that occasion, Christopher Taylor (Ward 3) argued that the community conversation about the South University area – which had led to the D2 designation – had been significant and warranted the council’s respect.

Taylor did not attend the Feb. 19, 2013 meeting as he was on a family vacation. Marcia Higgins (Ward 4) was not at the council meeting because she had to attend an offsite training conference for her employer. The rationale for postponement offered by Briere was that Higgins had wanted to be part of the deliberations. Before postponement, the council held a closed session on the topic lasting about an hour.

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

Ann Arbor zoning. Darker red areas are zoned D1. Lighter brownish areas are zoned D2.

If the moratorium were enacted – a pause that might last up to a year – it would delay a controversial proposed residential project at 413 E. Huron. During the proposed moratorium, the planning commission would be directed to review the zoning designations for the D1 (downtown core) and D2 (interface), and make recommendations to the city council for possible zoning changes. During the moratorium, projects for D1 and D2 areas that do not already have a planning commission recommendation of approval could not be considered by the city council. The D1 and D2 zoning is relatively young, having been enacted on Nov. 16, 2009 – as the result of the Ann Arbor Discovering Downtown (A2D2) process.

Results of the planning commission’s review of D1 and D2 zoning, according to the Feb. 19 draft resolution, would be due to the city council by the end of August 2013. The maximum length of the moratorium would be a year from the date of enactment. If the council were to change the zoning designation, and if that decision survived any legal challenge, that could ultimately stop the 413 E. Huron project from ever being built.

That project calls for a 14-story, 271,855-square-foot apartment building with 533 bedrooms, marketed primarily to university students. The parcel is zoned D1 – the highest allowable density in the city. The northern edge of the site is adjacent to the Old Fourth Ward Historic District, including historic single-family homes along North Division.

During extended commentary at the project’s public hearing before the planning commission – on Feb. 5, 2013 and Jan. 15, 2013 – several speakers called for changing the zoning of the parcel from D1 to D2. And more than one speaker addressed the idea that changing the zoning of the parcel now – when the developer is in the process of submitting the project to the city for approval – might give the developer a basis for a legal claim against the city.

In support of their contention that the city would, even at this stage in the process, be on solid legal ground in changing the zoning, speakers cited section 10.7 of the book “Michigan Zoning, Planning and Land Use”: “A Michigan landowner does not acquire a vested right to a particular land use until it has made substantial physical improvements to the land, pursuant to a validly issued building permit. This does not include demolition of existing structures on the site. Money spent preparing to construct will not suffice to create a vested right in the current zoning classification. The substantial improvements also must be made under authority of a building permit in order for the owner to acquire a vested interest in the current zoning.”

The resolution evidently is an attempt to ensure that possible future action by the council to rezone property in the downtown would not target just the 413 E. Huron project. Instead, the idea would be that any changes would stem from a more general evaluation of the city’s downtown zoning.

The 413 E. Huron project failed to get a recommendation of approval from the planning commission – because the 5-3 vote tally on Feb. 5 left it one vote short of the required six-vote majority. [One commissioner, Eric Mahler, was absent.] That 5-3 vote factors crucially in the moratorium that the council will reportedly be asked to consider on Feb. 19. The moratorium would stipulate that the city council won’t consider any future site plans for approval, except those already recommended for approval by the planning commission. So 413 E. Huron would not be eligible for consideration by the city council if the moratorium were enacted.

Another downtown project still needing action by the city council in order to proceed is a residential development at 624 Church St. The moratorium would not apply to the 624 Church St. project – because it received a recommendation of approval from the planning commission on Jan. 15, 2013. That 83,807-square-foot, $17 million project is located next to Pizza House, on the west side of Church between South University and Willard. The building would include 75 apartments with a total of about 175 bedrooms, ranging in size from 490 to 1,100 square feet.

The Ann Arbor city council considered a similar kind of moratorium, a bit more than three years ago, in connection with the City Place apartment project on South Fifth Avenue, which has since been completed. On that occasion, a moratorium was proposed on new development in districts zoned with the classification of R4C (multi-family residential) or R2A (two-family residential).

The intent of that moratorium was to block the construction of the City Place project. But on Aug. 6, 2009, the council voted down the proposed moratorium. The proposal had come from Mike Anglin (Ward 5), who ultimately did not support the final resolution – because it was amended so heavily in the course of council deliberations. It was amended specifically to allow the City Place project to proceed. The only councilmembers who supported the amended moratorium resolution were Stephen Rapundalo, Leigh Greden and Christopher Taylor.

Glossing over several details of the City Place timeline, the council instead opted to appoint a historic district study committee for a two-block area that included the City Place site, and attached a moratorium on the demolition of structures in the study area. The council eventually received a recommendation from the study committee to establish a historic district, but chose not to establish one. Subsequently, the two-building, 144-bedroom City Place project was built.

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Coming under the temporary moratoria are “billboards commonly referred to as ‘electronic message centers,’ ‘electronic message boards,’ ‘changeable electronic variable message signs,’ or any billboard containing LEDs, LCDs, plasma displays, or any similar technology to project an illuminated image that can be caused to move or change, or to appear to move or change, by a method other than physically removing and replacing the sign or its components, including by digital or electronic input.”

The resolution passed by the city council acknowledges that such signs are already prohibited by the city’s sign ordinance. From that ordinance, the list of prohibited signs include those that “… incorporate in any manner or are illuminated by any flashing or moving lights other than for conveyance of noncommercial information which requires periodic change.”

The resolution passed by the city council was added late to the agenda, after the printed copies of the agenda were made for the council chamber audience. Based on the time stamp on the online agenda, the item appears to have been added at 6:48 p.m. – for the council meeting scheduled to start at 7 p.m. The item was sponsored by mayor John Hieftje.

This brief was filed shortly after the council meeting concluded in the city council’s chambers on the second floor of city hall located at 301 E. Huron. A more detailed report will follow.

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

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

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

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

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

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

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

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

Fifth Ave. Historic District

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

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

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

Historic District: Background

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

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

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

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

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

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

City Place, Historic District: Public Commentary

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

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

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

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

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

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

Historic District: Council Deliberations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

City Place Votes Reconsidered

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

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

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

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

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

City Place: Landscaping

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

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

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

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

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

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

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

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

City Place: Elevations

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

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

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

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

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

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

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

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

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

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

Crosswalk Improvements

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

Crosswalks: Public Commentary

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

Crosswalks: Council Deliberations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

City Attorney’s Personnel Evaluation

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

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

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

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

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

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

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

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

An overview of Postema’s compensation history:

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

Communications and Comment

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

Comm/Comm: Open Door Thank You

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

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

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

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

Comm/Comm: NCCAP Freedom Fund Dinner

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

Comm/Comm: Civil Rights

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

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

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

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Ann Arbor planning staff and members of the planning commission's ordinance revisions committee discuss existing zoning areas and implications of ordinance changes at their Sept. 13 meeting. Clockwise from left: Wendy Rampson, Jill Thacher, Kirk Westphal, Jean Carlberg. (Photo by the writer.)

The resolution passed by the council also directed the city staff and planning commission to look at possible zoning ordinance changes, with the intent of regulating medical marijuana in Ann Arbor. The resolution does not mention other regulatory approaches, such as licensing.

Since then, the city’s planning staff and the ordinance revisions committee of the planning commission have been developing recommendations to change the city’s zoning code. The changes would regulate medical marijuana dispensaries as well as marijuana grown by registered caregivers as a “home occupation.”

At a Monday, Sept. 13 meeting of the ordinance revisions committee, the group mentioned a parallel track that’s being pursued by the city attorney’s office: licensing of medical marijuana dispensaries. Wendy Rampson, head of the city’s planning department, said that Postema has also been working with the Michigan Association of Municipal Attorneys regarding an approach to licensing medical marijuana. Postema is president of that group.

The development of a licensing approach to regulate medical marijuana was not a directive given in council’s Aug. 5 resolution – only zoning was addressed:

RESOLVED, That City Council hereby imposes a temporary moratorium prohibiting the initiation or expansion of the use of any property in the City as a facility for dispensing marihuana for medical and any other purpose and for cultivating marihuana plants, and that any zoning compliance permits or building and trade permits for such uses be deferred for a period of 120 days from the date of this resolution, in conjunction with the study and revision of the City’s Zoning Ordinance or other ordinances regarding this issue;

RESOLVED, That this moratorium does not apply to the following:

• A dwelling unit (as defined by the Zoning Ordinance) where a qualifying patient under the Act resides and is cultivating up to the maximum number of marihuana plants permitted by the Act for personal use or possesses up to the maximum amount of marihuana permitted by the Act for personal use.
• A building or structure (as defined by the Zoning Ordinance) other than a dwelling unit where no more than one qualifying patient under the Act is cultivating up to the maximum number of marihuana plants permitted by the Act for personal use or possesses up to the maximum amount of marihuana permitted by the Act for personal use.
• A dwelling unit or other building or structure where no more than one primary caregiver under the Act is cultivating up to the maximum number of marihuana plants permitted by the Act for assisting a qualifying patient or possesses up to the maximum amount of marihuana permitted by the Act for assisting a qualifying patient.

RESOLVED, That City Council directs City staff and the Planning Commission to study and make specific recommendations for ordinance amendments that restrict facilities for dispensing marihuana to appropriate zoning districts along with spacing requirements, and to also regulate such use in residential districts;

RESOLVED, That the moratorium imposed by this resolution shall expire the earlier of 120 days from its effective date or upon adoption by City Council of ordinance amendments regarding the issue of facilities for dispensing marihuana and/or cultivating plants for medical or any other purposes.

Ordinance Revisions Committee: Possible Zoning Changes

The ordinance revisions committee has met three times over the past month, most recently on Monday, Sept. 13. The committee consists of four planning commissioners: Bonnie Bona, Jean Carlberg, Eric Mahler and Kirk Westphal. Possible zoning changes are being drafted by Jill Thacher of the city’s planning staff, with input and feedback from the committee.

Monday’s meeting was attended by Carlberg, Westphal, Thacher and Wendy Rampson, head of city planning. The group discussed several possible changes [still in draft form] to the city code.

Regarding location:

• No medical marijuana dispensary shall be located on a parcel within 200 feet of a residential district, and shall be located only in D1, D2, C2, C3, M1 or M2 (downtown, commercial and light industrial) zoning districts.
• No medical marijuana dispensary shall be established within 500 feet of another medical marijuana dispensary.
• No medical marijuana dispensary shall be located within 1,000 feet of a parcel on which a public school is located.

Regarding the use of medical marijuana dispensaries:

• No person shall reside in or permit any person to reside in the premises of a medical marijuana dispensary, except as allowed in the M (light industrial) zoning districts.
• No person operating a medical marijuana dispensary shall permit any person under the age of 18 to be on the premises.
• The operator of a medical marijuana dispensary must be a registered caregiver.
• No person shall become the lessee or sub-lessee of any property for the purpose of using said property for a medical marijuana dispensary without the express written permission of the owner of the property for such use and a zoning compliance permit from the city of Ann Arbor.
• In D1 zoning districts, medical marijuana may be dispensed, but not grown.
• Odors may not leave the unit occupied by the medical marijuana dispensary.
• No drive-through windows are allowed at a medical marijuana dispensary.
• No on-site smoking or consumption is allowed at a medical marijuana dispensary.

Regarding medical marijuana as a “home occupation”:

• One registered caregiver per single-family home is limited to providing medical marijuana to five patients. Caregivers may not give, sell, or otherwise transfer medical marijuana to anyone other than the five patients that have designated them as their caregiver through the Michigan Dept. of Community Health.
• Caregivers must deliver to patients – no pickups are allowed from a caregiver’s house.
• An annual zoning compliance permit is required.
• Odors may not leave the property.

The decision has been made to treat medical marijuana as a separate, standalone section in the city code, Rampson said, similar to the section on adult entertainment uses in Chapter 55, Article III, Section 5:50 of the city code.

During Monday’s meeting, Thacher – who because of this task has become somewhat of an expert on the Michigan Medical Marijuana Act of 2008, which was approved by Michigan voters – said that under these draft recommendations, 431 parcels in the city could be eligible to be used for a medical marijuana dispensary.

The group discussed possible ways to limit the size of a dispensary, such as regulating a minimum amount of parking.

Carlberg asked whether the city knows how many registered caregivers there are in Ann Arbor. Thacher reported that the state won’t release information about registered caregivers or patients.

Rampson clarified that the only way to know would be if there’s a licensing requirement in the city. Similar to the process of getting a liquor license, a license to operate a medical marijuana dispensary could require inspections for fire safety and building code compliance, as well as a criminal background check, she said. And if the city adopts a licensing approach, that would likely mean that some of the zoning changes being discussed wouldn’t be necessary.

Westphal noted that if a dispensary is regulated through zoning and is compliant with zoning ordinances, there’s no way to shut it down – even if it’s causing problems in the surrounding area. Earlier in the meeting the group had discussed the cost of medical marijuana – more than $300 per ounce – and Carlberg had commented that it could create a crime zone around the dispensaries.

Westphal said that licensing is a great idea, and would give the city more control over these dispensaries.

At the end of Monday’s meeting, Thacher said she would put together the draft recommendations for the full planning commission to discuss at their working session on Tuesday, Sept. 14. The goal is to draft a resolution that could be posted on the city’s website on Wednesday as part of the planning commission’s agenda for its Sept. 21 meeting, when a public hearing on the ordinance changes is planned.