Now the city of Ann Arbor has settled that lawsuit, accepting a range of requirements under the agreement.

Under terms of the settlement signed on Monday, the city has agreed to comply substantively with a request that one of the plaintiffs – The Great Lakes Environmental Law Center – had originally made over two months before the lawsuit was filed. That request was to conduct a study of environmental impacts associated with construction of the new underground parking structure, which is being built by the Downtown Development Authority.

The lawsuit settlement does not resolve the question of whether city councilmembers committed violations of the Open Meetings Act, when they communicated during their meetings via email about an agenda item related to approval of bonds for the parking structure.

However, the Ann Arbor city council is required by the settlement terms to discuss publicly, at one of their April 2010 meetings, the possibility of establishing a council rule that addresses which email accounts they use to conduct city business.

In the part of the lawsuit settlement that addresses the nuisance claims, the city must make various accommodations to ameliorate the impact of construction on neighboring properties. Those accommodations are primarily focused on providing adequate advance notice about specific construction events, and include 2-hour parking validation stickers for patrons to be provided by the city.

The settlement agreement does not require the city explicitly to make expenditures associated with any of the obligations that the city has agreed to meet, or to compensate any of the parties monetarily.

Backdrop to the settlement is an election-year political dynamic, which includes Steve Bean, chair of the city’s environmental commission, who’s now declared himself as an independent candidate for mayor of Ann Arbor. Bean was not a party to the lawsuit.

However, before the decision to issue bonds for the underground garage construction was made, he had argued unsuccessfully for the city to treat the construction of the parking garage as an environmental issue, calling for an environmental impact study to be completed before a decision was made. Elected officials, including mayor John Hieftje – who has now taken out petitions to run for mayor again – had resisted Bean’s call for an environmental study.

Construction on the underground structure has now begun. In settling the lawsuit, the city has agreed to undertake, after the fact, some of what Bean had asked them to do before they started.

Background material includes:

• the text of the lawsuit’s complaint
• the text of the settlement agreement
• Chronicle coverage: “City to Face Environmental Lawsuit?“
• Chronicle coverage: “Parking Deck Pre-Tensioned with Lawsuit“
• May 14, 2009 Great Lakes Environmental Law Center letter
• May 29, 2009 Great Lakes Environmental Law Center letter

Background: Environmental Issues

Part of the lawsuit and the settlement involve environmental issues. The key piece of legislation is the Michigan Environmental Policy Act (MEPA), which prohibits activity that is “likely to pollute, impair, or destroy” the environment unless “there is no feasible and prudent alternative.”

In its May 14, 2009 letter to the city council, the Great Lakes Environmental Law Center (GLELC) pointed to the MEPA and contended that:

For the City of Ann Arbor to ensure that it is in full compliance with the MEPA and not polluting, impairing, or destroying Michigan’s environment, it must engage in a thorough, thoughtful, and public process to identify and understand any potential environmental impacts of, and alternatives to, the proposed new parking structure.

The letter, sent on behalf of several parties – including the Natural Resources Defense Council – outlined what that public process should look like, from which we extract the bullet points:

• Identification and Evaluation of the Purpose and Need of the Proposed New Parking Structure
• Evaluation and Requirement of Alternatives to the Proposed New Parking Structure
• Evaluation and Requirement of Steps to Minimize the Impacts of the Proposed New Parking Structure
• Open and Public Process

The letter also cites Feb. 16, 2009 email correspondence from Steve Bean to the city council and the mayor. GLELC’s letter points out that Bean was writing as a private citizen, not as chair of the environmental commission, because that body was not asked to evaluate the project from an environmental point of view. In part, that correspondence from Bean reads as follows:

I’m writing to ask that you

- postpone action on the proposed underground parking structure at the “library lot”,

- request a comprehensive presentation by the DDA on its parking availability data for the structures as well as on its parking demand management efforts, and

- perform a more extensive analysis of the presumed need for the structure and possible alternatives before approving its construction.

I believe that a delay is fully justified given the state of the economy, the upcoming addition of several hundred new parking spaces elsewhere downtown, the incomplete implementation of alternatives for managing peak parking demand, the lack of consideration of environmental impacts (such as greenhouse gas emissions) from increasing parking supply, and the likelihood of a permanent decrease in parking demand early in the lifetime of the proposed structure. (The last two might seem contradictory, but any increase in emissions, no matter how short-lived, would be very detrimental.)

In a follow-up letter sent by GLELC to the city attorney and to legal counsel for the DDA on May 29, 2009, also signed by Natural Resources Defense Council, the proposed remedy to address the requirements of the MEPA are listed out as follows:

1. Working with the Ann Arbor Downtown Development Authority (DDA), identify
and inventory all actual and anticipated changes in the City’s public parking in the
downtown area [...]

2. Working with the DDA, implement a “formalized process for determining when new [parking] supply is needed” as recommended in the Ann Arbor Downtown Parking Study [...]

3. Working with the DDA and its consultants (ideally Nelson\Nygaard given their expertise and previous work with Ann Arbor’s downtown parking and transportation data and planning), conduct a preliminary study to predict if the proposed new parking structure will impact VMT in the City of Ann Arbor and southeast Michigan region. [...]

4. Allocate an additional $1.5 million per year for the next 5 fiscal years from the DDA’s parking revenues for alternative transportation and transportation demand management measures, to implement “toolbox” recommendations from the 2007 parking study. [...]

5. Working with the DDA, mitigate to the extent feasible pollution and other environmental impacts during construction using measures that include the use of low sulfur fuels and particulate traps on diesel equipment, storm water management, and dust suppression. [...]

6. To partially address the impact of increased traffic to and from the proposed new parking structure and the impact of significant new parking availability at this location on the environment and character of the nearby Germantown neighborhood, [...]

Settlement: Environmental Issues

The lawsuit’s settlement agreement signed on Monday does not include the allocation of any money for alternative transportation measures as suggested under point (4) of the May 29 letter. However, the settlement agreement requires the city to implement a process that reflects (1) and (3) of that letter and echoes the sentiments expressed by Bean in his attempts to convince the council to delay a decision in order to conduct a study.

The settlement agreement text outlines the requirements the city must meet in undertaking a study:

Step 1. The New Study will list all decisions regarding public parking that have  been made by the DDA or the City after the 2007 Ann Arbor Downtown Parking Study (the  “2007 Study”) data were gathered but on or before January 31, 2010, and determine the difference in the overall number of public parking spaces available in Ann Arbor in 2011  (assuming the new garage is completed in 2011, and without regard to the effect of any decisions  that may be made after January 31, 2010) compared to the 2007 Study level. If the difference is  a net increase of 100 or fewer public parking spaces, then the New Study will be deemed to be complete. If the difference is a net increase exceeding 100 spaces, then the New Study shall continue to Step 2.

Step 2. The New Study shall estimate the expected number of cars seeking public  parking in 2011. If parking demand is expected to decrease from the 2007 Study level, the New  Study will be deemed to be complete.

Step 3. The New Study shall estimate how many of the additional cars could be  accommodated by the net increase in the number of spaces determined in Step 1, except that the maximum number of spaces evaluated shall be the number of spaces in the new parking structure. That figure will then be multiplied by an estimate of the additional vehicle miles traveled (likely from the 2007 Study regarding vehicle miles traveled by users of the parking  system). An emissions factor will then be applied to the number of vehicle miles to estimate the  greenhouse gas emission impact from net additional vehicles that could be accommodated by the  parking structure. It is understood that the 2007 Study’s survey had insufficient sampling and insufficient statistical power to generate the additional vehicle miles traveled, and therefore, the New Study will be an educated guess with significant uncertainty, and not a scientific determination of such emissions. At the sole discretion of the City, the New Study may use an emissions factor that is the same or different from the one used in the 2007 Study, and may consider any new information to supplement the survey data from the 2007 Study regarding vehicle miles traveled by users of the parking system.

Step 4. The New Study will identify new measures, policies, and actions that may  mitigate any estimated greenhouse gas impact (if any) of the additional cars seeking public  parking that can be accommodated by the new parking structure. This may include new  measures, policies, and actions to offset and reduce greenhouse gas emissions in furtherance of the City’s resolution to reduce greenhouse gas emissions 20% from 2000 levels by 2015. However, nothing in this Agreement requires the City or the DDA to implement any measure, policy, or action identified in the New Study or obligates or restricts the City or the DDA in any  manner other than is described in this Settlement Agreement.

Step 5. An opportunity for public participation will occur prior to the New Study being finalized. That participation shall consist of a minimum of one public hearing (which may  be satisfied by a televised public meeting of the Environmental Commission at which there is an  opportunity for public comment), and one opportunity to submit written comments.

If the net increase in parking spaces is less than 100, it would allow for quick dispatch of the study requirement at Step 1. While that would eliminate some subsequent steps, it would call into question the financing plan for the project’s bond repayments, which assumed a combination of increased parking rates and increased parking inventory.

The city council passed a resolution at its July 6, 2009 meeting that commits the city eventually to establish the surface parking lot at First & William, which has 108 spaces, as a park. However, that future reduction will not be countable as a reduction in the net available parking for purposes of the settlement agreement’s “New Study” – unless that conversion of the First & William lot to a park can be shown to be expected by 2011. [Additional Chronicle coverage: "First & William to Become a Greenway?"]

Also part of the assumptions underpinning the financing plan for the bond repayments is the idea that demand for parking will not decrease – either as a result of higher rates or other factors – but will continue to be commensurate with the parking available in the system after construction of the underground parking garage. This assumption is addressed in Step 2, which deems the new study to be complete if it’s shown that demand for parking is expected to decrease. Again, while this would satisfy the requirement of the settlement agreement, it would raise questions about the viability of a financing plan that is dependent on stable or increasing demand for parking.

After “completion” of the study in Steps 1-4, the settlement agreement requires a Step 5 – a public hearing – before the study is “finalized.”

The settlement agreement also does not require the city to engage the services of a consultant, as suggested in the May 29, 2009 letter sent by GLELC. Rather, the agreement specifies that it’s “the City’s environmental staff, working with [Downtown Development Authority] DDA staff” who will conduct the study.

The settlement agreement explicitly rejects the implication that the city of Ann Arbor must undertake environmental impact studies for other building projects:

Nothing in this Agreement shall mean that the City has any obligation to conduct any environmental study for any other building project, or that the City is required under the Michigan Environmental Protection Act or any other environment act to conduct any similar environmental study for any other building project.

The city is, however, conducting an environmental assessment in connection with the Fuller Road Station, which in Phase I consists of a parking structure and a bus station. The memorandum of understanding on the project between the city of Ann Arbor and the University of Michigan makes clear that the environmental assessment is related to its hope that federal funding can be obtained:

The City will conduct an Environmental Assessment consistent with the National Environmental Policy Act, at its expense and for its sole benefit, to enable federal funding of Fuller Road Station.

Background: OMA and FOIA Issues

Part of the complaint in the lawsuit alleges that the city violated the Freedom of Information Act (FOIA) because “[u]pon information and belief, much of the material exempted from GLELC’s FOIA requests were disclosed as part of a similar FOIA request submitted by The Ann Arbor Chronicle.”

The complaint also alleged that the city council violated the Open Meetings Act (OMA) in the course of exchanging emails unseen at the time by the public during council’s Feb. 17, 2009 meeting. Some of the emails exchanged by councilmembers addressed the subject of postponement of a vote on the parking structure bonds.

The Chronicle published an opinion column on Oct. 1, 2009 that analyzed why such email exchanges are violations of the OMA, regardless of whether a quorum of councilmembers participated in them. That position is aligned with the Attorney General’s OMA Handbook, which states:

… e-mail, texting, or other forms of electronic communications among members of a  board or commission during the course of an open meeting that constitutes deliberations toward decision-making or actual decisions violates the OMA, since it is in effect a “closed” session.

The publication of the opinion column ["When's an Open Meeting Open?"] prompted a phone call to The Chronicle from the city attorney, Stephen Postema, but he declined to speak on the record about the legal analysis presented in the column. Postema also refused a later request to be interviewed on the subject, and also declined an opportunity to be interviewed for this article.

Settlement: FOIA and OMA Issues

In the settlement agreement, the question of the alleged FOIA violation is resolved as part of the “recitations” as follows:

The parties recognize that the City has provided all documents (subject to permissible statutory exemptions) requested by the FOIA requests of the plaintiff Great Lakes Environmental Law Center.

The question of the OMA violations as a result of emails sent during council meetings, however, is essentially left open.

In the wake of the email scandal that had erupted the previous spring, at its Sept. 10, 2009 meeting, the city council approved a new council rule that requires email activity during meetings to be restricted to city business. Messages from councilmembers are required to go only to city staff – or other councilmembers, if the content is limited to draft amendments and resolutions. All such drafts are to be read aloud before discussion by the council.

At its  Sept. 21, 2009 meeting, the council approved a resolution requiring that emails sent and received by councilmembers during the meeting will be attached to the minutes of those meetings.

Under the current set of rules and resolutions on how city council meeting minutes are handled, it would be possible for councilmembers to use non-government accounts to send email messages, and thereby shield those communications from public view. Outside of their meetings, it is known to The Chronicle that councilmembers use non-government accounts to communicate with each other on topics of council business, and that the city of Ann Arbor does not produce records of such communications, even when those city records are responsive to requests made under the FOIA.

The settlement agreement requires the city council to contemplate their use of non-government email accounts on substantive council matters by considering the following amendment to their rules:

City Council members will use their City e-mail accounts when sending e-mail communications about substantive City business, to the extent feasible. This rule does not cover communication to constituents or residents or communication regarding political activity.

The settlement agreement does not require the council to adopt such a rule, but just to consider it at one or more of their April 2010 meetings.

View of construction site (Ed. note: corrected from "sight") for proposed underground parking garage looking east to west. Herb David Guitar Studios and Jerusalem Garden are located in the upper right corner of the block. (Image links to Microsoft's Bing Maps for full interactive display.)

As The Chronicle previously reported, at last week’s city council meeting, Ann Arbor CFO Tom Crawford announced that bonds for the 677-space South Fifth Avenue underground parking garage had been sold on Aug. 5.

And on Friday, Aug. 7, the Downtown Development Authority’s capital improvements committee conducted interviews with four candidate companies for the job of construction manager of the garage.

Then, by Wednesday morning of this week, references and financials for the Christman Company had checked out to the satisfaction of the DDA staff and Carl Walker – the design firm that’s been hired for the project. DDA executive director Susan Pollay is working out a time for a special meeting of the whole board to award the job to Christman.

But the day before, on Aug. 11, a lawsuit in connection with the parking garage project – which had previously been threatened by the Great Lakes Environmental Law Center – was actually filed. The complaint alleges violations of the Michigan Environmental Protection Act, the Michigan Open Meetings Act, as well as nuisance and trespass violations.  Herb David Guitar Studio and Jerusalem Garden restaurant are plaintiffs in the suit, along with GLELC.

Bonds

On Wednesday morning, after arriving at a consensus that they wanted the Christman Company as their construction manager for pre-construction services, several DDA capital improvement committee members wanted to know: “When do we get the money?” That is, when does the bond money arrive so that they can pay Christman?

The money is coming from municipal bonds. And it’s supposed to arrive next week  (on Aug. 19), Tom Crawford told The Chronicle in a phone conversation. It’ll be a wire transfer for roughly $49 million. Here’s a brief historical sketch of the bonds.

The municipal bonds for the proposed underground parking garage were first authorized by Ann Arbor’s city council at its Feb. 17, 2009 meeting – that’s a key date with respect to the lawsuit that’s been filed. Then at its July 20 meeting, the council authorized a change from tax-free bonds to taxable municipal bonds, which have higher interest rates, thus costing the city more in debt service. That’s more than offset, however, by money from the federal stimulus package through its Build America Bonds program.

In his presentation to the DDA board at its July 3 meeting, Crawford said that switching to the BABs would actually save around a $1.5 million over the life of the bond.

At the council’s most recent meeting, on Aug. 6, Mike Anglin (Ward 5) queried Crawford about the city’s bond rating in light of a $5 million payment out of cash reserves, which was needed to finance the early-out police retirements. Crawford told Anglin that the cash reserves were still within the policy range of 8-12% of expenditures, and that the city’s bond rating  had been confirmed the previous day at Aa2 when the bonds for the parking garage had been sold.

So the bond sale date was Aug. 5. How exactly are bonds sold? There’s a bidding process. In this case the “sale date” corresponds to the deadline for submitting sealed bids. From the city’s Preliminary Official Statement for the issuance of the bonds:

Sealed bids for the purchase of the issue of  bonds described below of the aggregate par value of $49,420,000 to be issued by the  City of Ann Arbor, Washtenaw County, Michigan (“City”), will be received by the undersigned at the office of the Treasurer, at 100 N. Fifth Ave. Ann Arbor, Michigan
48107, until 11:30 o’clock, A.M., Eastern Daylight Time, on Wednesday, the 5th day of  August, 2009, at which time and place such bids will be publicly opened and read.

Delivery of the bonds is scheduled for Aug. 19. After delivery, the city would receive a wire transfer of around $49 million, which would be invested in low-risk financial instruments – like U.S. Treasury bonds – in a manner that would allow those investments to be cashed out in the course of the project. That way, when the DDA requests funds to meet its construction payment obligations, those funds will be available.

When we spoke with Crawford, we asked him explicitly not to factor in any possible implications of the lawsuit on what might happen to the bonds – from Crawford we wanted to know how things worked in a garden-variety case. In a usual course of events, after the “sale,” Crawford told The Chronicle, “We’re in, we’re done.”

However, based on the Preliminary Official Statement, it appears that delivery of the bonds might founder on the need to attest that there is no pending litigation:

DELIVERY OF BONDS: The City will furnish bonds ready for execution at its expense. Bonds will be delivered at the principal office of the Bond Registrar, or any other place mutually agreeable, at the expense of the City. The usual closing documents, including a certificate that no litigation is pending affecting the issuance of the bonds [emphasis added], will be delivered at the time of delivery of the bonds. If the bonds are not tendered for delivery by twelve o’clock noon, Eastern Daylight Time, on the 45th day following the date of sale, or the first business day thereafter if said 45th day is not a business day, the successful bidder may on that day, or any time thereafter until delivery of the bonds, withdraw its proposal by serving written notice of cancellation on the undersigned, in which event the City shall promptly return the good faith deposit.

The lawsuit filed by GLELC alleges Open Meeting Act violations at the Feb. 17 meeting when the bonds were issued.

If the lawsuit delays bond delivery, that would delay construction start. And based on the construction manager interviews,  delays in the construction start could potentially wreck the timing of crucial phases of the project.

Construction Interviews

The DDA board’s capital improvements committee interviewed four candidate construction companies from around noon to 7 p.m. last Friday in a meeting open to the public.

We’re Going to Dig a Big Hole

At least two companies  for the construction manager job had taken to heart an apparent message from the DDA about timing: Get Fifth Avenue back open in time for the Art Fairs.

Timing of closure and opening of Fifth Avenue was a key part of presentations from Barton Malow and Christman Company – we missed Spence Brothers, and Granger Construction Company’s pitches. Those four had been winnowed down from 14 companies that submitted bids.

Barton Malow described digging the big hole from west to east. Christman had an idea for digging from east to west.  They both talked about the project in terms that pretty much anybody could understand. Barton Malow, whose construction trailers can currently be seen parked on the north end of Michigan Stadium in connection with the university project, described the process like this: “We’re going to dig a hole – a big hole. And we’re going to fill it with concrete – a lot of concrete.” For their part, Christman described starting the excavation then “chasing ourselves around the hole with our concrete.”

Interviews for the construction manager job by the DDA's capital improvements committee. From left, Roger Hewitt (DDA), Michael Ortlieb (Carl Walker), Neal Morton, standing (Barton Malow). (Photo by the writer.) (Ed. note: "Barton" corrected from "Baron")

The presentation was by no means just a bunch of concrete guys pouring out homespun phrases. It was a bunch of concrete guys with 3-D renderings of the site and their proposed phasing of the construction to take place in the tight quarters on the library lot.

Both companies had put effort not just into 3-D modeling, but into getting to know their potential client. Christman met with councilmembers.  Barton Malow attended DDA board and city council meetings – at the interviews, The Chronicle had noticed the face of Neal Morton of Barton Malow, which had grown familiar from some of those meetings. Morton had also put time into measuring current light levels (in  foot candles) and noise levels (in decibels) at the site so that they’d know what kind of comparative impact the construction was having.

Morton’s effort, however, was ultimately not rewarded with a recommendation to the board that his company be selected as construction manager.

Still, Barton Malow and Morton could make money on the job – if they’re selected as a concrete subcontractor. The construction manager candidates have their “in house” concrete divisions, and would ordinarily not need to subcontract out that work. But the DDA would like the construction manager for this project to bid out the concrete work. It was a question that DDA board member Leah Gunn put to the construction manager candidates during the interviews: Would they be comfortable having to compete for the concrete work with other bidders? The correct answer was yes.

The candidates for the job emphasized that the close quarters of the site made it a challenge – both logistically and in terms of minimizing impact on the immediately surrounding property. They’d be installing earth retention systems that would minimize vibration impacts, for example.

Why Christman is the Committee’s Choice for the Job

At Wednesday’s meeting of the DDA’s capital improvements committee, Mike Ortlieb of Carl Walker reported that they’d followed up with six different references for Christman: the cities of Lansing, East Lansing, and Traverse City; Foote Hospital, Catalyst Development, and Spectrum Hospital.

They heard back from four of them. There was “not a negative word in any of them,” said Ortlieb. What had been particularly impressive was the fine job of coordination on any issues that had come up. It was their people who really made the difference, he reported.

The financial picture for Christman had also checked out. Adrian Iraola of Park Avenue Consultants, who’ll be coordinating with the construction manager for the DDA, said that Joe Morehouse, deputy director of the DDA, had cross-referenced the financial statements. Asked by board member Roger Hewitt if they’d looked at an audit, DDA executive director Susan Pollay indicated that Christman’s numbers had been checked using an online service from Dun & Bradstreet Inc.

But for Hewitt and other capital improvement committee members, what made Christman rise above the other three was the fact that they just recently completed three simultaneous projects of the same kind as the underground parking project planned in downtown Ann Arbor – they’d worked on the Michigan Street Development project in Grand Rapids. Plus, they’d be bringing that same project team to Ann Arbor.

Carl Luckenbach of Luckenbach|Ziegelman Architects listens to a presentation from the Christman Company, one of four candidates for the job of construction manager for the Fifth Avenue underground parking garage. (Photo by the writer.)

Recently-elected board chair John Splitt placed a high enough value on the people on the project team that he said he’d like it written into the contract that if Christman were selected to handle the actual construction phase – the current award for the job is just the pre-construction phase – then he wanted that same project team in place.

Recently-appointed board member Newcombe Clark noted there was an interesting parallel between Christman as a construction company with its own “in house” concrete division, and Christman as a construction company that is also affiliated with its own development company:  Christman Capital Development Company. As previously noted, the DDA wants its construction manager to solicit sealed bids for subcontracted work – the construction company’s “in house” concrete division won’t have any advantage against other bidders.

In the same way, Clark said, it’d be important that Christman as a development company not have any advantage in an RFP (request for proposals) process for the question of what, if anything, gets built on top of the underground parking structure.

The question of “what goes on top” was a contentious one at city council’s July 6 meeting when the council ultimately passed a resolution to set an RFP process into motion for how the top of the parking garage would be developed.

It’s possible, even likely, that alterations in the parking garage design might need to be undertaken on the fly during construction to accommodate plans for what goes on top. So, during the interviews last Friday, Carl Luckenbach of Luckenbach|Ziegelman Architects, who’s on the design team, asked candidates how well-equipped they might be to deal with such design revisions.

At Wednesday’s capital improvement committee meeting, Hewitt emphasized that “no RFP would come from us [the DDA]!”

The Lawsuit Against the City of Ann Arbor

Recall that references were checked for Christman, the construction company recommended by the DDA’s capital improvements committee for the construction manager job. Of those, Mike Ortlieb indicated that one was a neighbor to the Grand Rapids street improvement project that Christman had worked on, directly across the street from the site.

In Ann Arbor, it’s two immediate neighbors to the Fifth Avenue construction site – Herb David Guitar Studios and Jerusalem Garden restaurant – who are parties to the lawsuit filed on Aug. 11 against the city of Ann Arbor.

One: Nuisance

The  first count of the suit’s claim is one of nuisance:

86. The City’s proposed Parking Garage project will cause vibrations, noise and dust, creating a nuisance that will cause damage to, and interfere with the businesses, of Plaintiffs Herb David Guitar Studio and Jerusalem Garden.

Two: Trespass

The second count of the suit’s claim is one of trespass:

94. If the Parking Garage project is permitted to go forward, vibrations, noise and dust from the construction process will physically invade the Plaintiffs’ properties.

95. The vibrations, noise and dust which will enter, settle upon and physically invade Plaintiffs’ properties will interfere with Plaintiffs’ use and possession of their properties and will constitute a continuing trespass upon Plaintiffs’ properties.

96. Plaintiffs do not consent to having vibrations, noise and dust physically invade their land and property.

Three: FOIA Violation

The third count of the suit’s claim is that the city of Ann Arbor violated the Freedom of Information Act in failing to provide documents that the Great Lakes Environmental Law Center had requested under that act:

108. The City has failed to meet its burden of claiming an exemption because FOIA exemptions must be supported by substantial justification and explanation, not merely conclusory assertions.

109. The City withheld email communications among Council members concerning whether to postpone a decision on the Parking Garage resolution which is clearly a matter of urgent public interest. These communications do not fall within any of the exemptions to FOIA claimed by the City.

In part, GLELC became aware  of the failure of the city to provide responsive documents through a FOIA request made by The Chronicle:

69. Upon information and belief, much of the material exempted from GLELC’s FOIA requests were disclosed as part of a similar FOIA request submitted by The Ann Arbor Chronicle.

Four: Open Meetings Act Violation

The FOIA violation claimed in the third count of the suit is a key element related the fourth count, which is a claim that the  Open Meetings Act was violated at the Feb. 17 meeting of the city council:

122. The Open Meetings Act requires that all decisions and deliberations of a public body shall be made at a meeting open to the public. MCL 15.263

123. The City violated the Open Meetings Act when City Council members discussed and decided not to postpone a vote on the resolution to approve the Parking Garage project through private email communication.

124. After the private email discussion among Council members, Council voted to approve the site plan for the new Parking Garage and the bonding to finance the project.

Paragraph 54 (b) of the complaint indicates the specific councilmembers, whose email exchanges during the Feb. 17 meeting are alleged to constitute a violation of the Open Meetings Act, are Carsten Hohnke, Sandi Smith, Margie Teall, Leigh Greden, Marcia Higgins and Sabra Briere. In The Chronicle’s set of emails, we identify only one email involving Briere, which was sent to her and Smith by Higgins at 8:27 p.m. with an empty body and the subject line: “I won’t be asking for a postponement.” To the extent that  GLELC wants to make a quorum-based argument that a meeting took place that was not properly noticed,  it may depend on demonstrating that Briere looked at that email during the meeting.

As a part of that OMA count, the suit states that because of the FOIA violation, GLELC did not become aware of the OMA violation until long after it occurred:

126. In response to GLELC’s FOIA request, the City refused to provide the email communications between Council members regarding postponement of the vote on the resolution to approve the Parking Garage.

127. As a result of the City’s failure to comply with FOIA, Plaintiffs did not become aware of the private emails and the City’s violation of the Open Meetings Act until on or about July 9, 2009.

Five: Violation of MEPA

The details of the claimed violation of the Michigan Environmental Protection Act are discussed more fully in a previous Chronicle article. From the complaint:

148. The proposed Parking Garage will “pollute, impair and destroy” the natural resources in several respects, including, but not limited to, the following:

(a) The Parking Garage will increase motor vehicle miles traveled (“VMT”) to downtown Ann Arbor, causing increased greenhouse gas pollution and other air pollution impacts;

(b) Construction  of the Parking Garage will create significant localized environmental impacts such as particulate pollution, dust and noise in the project area; (c) The manufacture and synthesis of construction materials require vast amounts of resources and energy with associated pollution, impairment and destruction of the natural environment; and (d) Such other pollution impacts as may become apparent during the course of discovery in this matter.

149. During the City Council meeting on February 17, 2009, Environmental Commission Chairman Bean urged City Council to postpone its decision regarding the bonding and approval of the new Parking Garage until the City properly considered the need for the project, the environmental impact of the project and the range of less impacting alternatives to the project.

150. In clear violation of MEPA, the City failed to consider the environmental impacts of the proposed new Parking Garage and/or the alternatives to the Parking Garage.

What’s Being Asked of the Court?

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs request the following relief:

(a) Declare that the City approved the Parking Garage project in violation of the Open Meetings Act;

(b) Declare that the City’s nondisclosure of requested documents violated the Freedom of Information Act;

(c) Enter an order which invalidates City Council’s approval of the site plan for the Parking Garage and the bonding to fund the project which occurred at its meeting on February 17 , 2009 ;

(d) An order which enjoins City Council members from engaging in any further private emails discussions during public meetings regarding the Parking Garage project or funding for the project; [emphasis added]

(e) Enter an order holding that the proposed Parking Garage project constitutes a threatened nuisance to Plaintiffs’ properties;

(f) Enter an order holding that the proposed Parking Garage project constitutes a threatened trespass to Plaintiffs’ properties;

(g) Enter an order holding that the proposed Parking Garage project is likely to pollute, impair or destroy the air, water and other natural resources;

(h) Enter a preliminary injunction requiring the City to undertake a study to determine the following:

• (i) Consideration of the environmental impacts of the proposed new Parking Garage;
• (ii) Identification and evaluation of the purpose and need for the proposed new Parking Garage; and
• (iii) Evaluation of alternatives to the proposed new Parking Garage;

(i) Enter a preliminary injunction which prohibits the City from constructing the Parking Garage until a comprehensive study as detailed above is completed;

(j) If construction of the Parking Garage proceeds, award Plaintiffs damages for the City’s interference with the use and enjoyment of their properties as more fully described above;

(k) If construction of the Parking Garage proceeds, award Plaintiffs damages for the trespass upon their properties committed by the City as more fully described above;

(1) Award GLELC its actual and reasonable attorney’s fees, as required by MCL 15.240(6);

(m) Award Plaintiffs their actual and reasonable attorney’s fees as required by MCL 15.271(4); and

(n) Award Plaintiffs such other relief as the Court deems just under the circumstances.

Chronicle Commentary on What’s Next

The city of Ann Arbor has 21 days to file a written answer to the court in response to the suit filed by GLELC. Based on The Chronicle’s understanding of the requirements of bond delivery – described at the beginning of this article – the fact that a lawsuit has been filed surrounding the issuance of the bonds could stop the parking garage project at least until the city files a response. Specifically, on our understanding, the existence of the lawsuit stops the project because it makes bond delivery impossible – because  bond delivery requires there be no pending litigation on the issuance of the bonds.

The full DDA board will not meet to vote on the award of the construction manager job for pre-construction services until sometime in the week of Aug. 17. But if the lawsuit remains unresolved past the end of next week, it’s fair to start the clock on the length of the project’s delay.

The request (d) in the lawsuit by the plaintiffs that the court enjoin city councilmembers from further email communications on the topic of the underground parking garage is a narrowly drawn version of requests to the city council that The Chronicle made earlier this week. That is, The Chronicle’s requests have not yet been escalated to litigation, and the request is not confined to the topic of the underground parking garage. Those requests are numbered 1-3 in this excerpt from the full text of our communication.

On examination of the corpus of email exchanges between city council members during open meetings, it is clear that many of these exchanges augmented the open deliberations as viewed by a public observer, thus effectively shielding a portion of the council’s deliberation from public view. This is not a gray area and constitutes a violation of both the letter and spirit of the OMA.

It is The Chronicle’s position that the city council should adopt a policy to prevent such instances of Open Meetings Act violations in the future. Our concerns for the openness of future discussions of public policy could be addressed by immediately enacting a council policy that does the following:

1. Prohibits electronic communications between members of city council during public meetings, because such electronic communications are not accessible to the public at the time of the meeting.
2. Defines “electronic communications” broadly enough to include email, instant messaging, text messaging and use of third party message services such as Facebook.
3. Does not rely on self-policing or FOIA requests made by citizens to check for compliance with the policy.

There are obvious technology solutions that would allow for the council to conduct its business in an efficient and convenient way, while still enforcing the openness that Open Meetings Act requires, a requirement which the Ann Arbor city council has not met in its recent history as demonstrated by the corpus of emails obtained by The Chronicle under the FOIA.

In light of our specific interest in the Open Meetings Act, it is that aspect of GLELC’s lawsuit that has been filed against the city on which we will focus as the litigation makes its way through the court.

[Partially Searchable Text of Complaint]