Washtenaw County Courthouse at Main and Huron streets in downtown Ann Arbor.

However, in the course of oral arguments heard this week, Shelton appeared to indicate basic agreement with the points of the presentation given by Dick Soble, one of the plaintiff’s attorneys in the case, who had asked for sanctions against Worthy. The Wayne County prosecutor is involved in the case as an intervenor, and was represented during oral arguments by Donn Fresard, the Wayne County prosecutor’s office chief of staff. Sanctions had also been sought against Fresard.

Soble and other opposing counsel had asked for sanctions against the Wayne County prosecutors because of their motion for recusal of judge Timothy Connors from the case – a motion filed on Nov. 1, 2012, five days before the Nov. 6 election. Soble contended that the motion had no legal merit, and instead had political motives. The incumbent Connors was opposed in the race by Michael Woodyard, who works as an assistant prosecuting attorney in Worthy’s office. Connors prevailed in that election.

The oral arguments and Shelton’s ruling from the bench came on Jan. 16, 2013 at the Washtenaw County courthouse at Huron and Main in downtown Ann Arbor.

Despite his decision not to sanction the Wayne County prosecutors, Shelton had some sharp words for their actions. He indicated that if similar filings were to come before him again in connection with the case, he would not hesitate to impose sanctions.

The case has previously been handled by Connors, who had denied the motion for his own recusal in late November. Yet it’s Shelton, not Connors, who will now be handling the rest of the Neal v. MDOC case. It was reassigned to Shelton as the result of a court reorganization to accommodate the addition of a new judge, Carol Kuhnke. She was elected on Nov. 6 in a race against Jim Fink, and replaces the retiring judge Melinda Morris on the 22nd circuit court. Because of the reassignments, Shelton said at the Jan. 16 hearing, “This case fell in my big lap.”

Shelton’s Ruling

After hearing oral arguments, Shelton began his remarks by saying that he found the motion to recuse Connors – in its content and especially in its timing – to fit a term he described as deriving from his own dated vernacular: “smeggy.” He continued by saying that he could hold an evidentiary hearing to determine whether the motive in filing the motion was an attempt to influence the outcome of the election between Connors and Woodyard. However, he was “choosing” not to do that, he said. He also said he was “choosing” not to begin his assignment to “whatever is left of this case” by sanctioning the attorneys.

In his choice of the phrase “whatever is left of this case,” Shelton seemed in part to be echoing an aspect of Soble’s oral arguments for sanctions. By way of a background sketch, the Neal v. MDOC case dates from the late 1990s. It involved women prisoners held by the Michigan Dept. of Corrections who were found to have been subjected to abuse by prison guards. They were awarded a settlement of $100 million in installments over a six-year period, paid into an escrow account and then distributed to the attorneys and class members according to an allocation plan.

The settlement prompted the involvement of the Wayne County prosecutor’s office, which had an interest in ensuring that the victims of crimes committed by the women prisoners were paid any restitution they might have been owed – from the settlement of the Neal v. MDOC case. Soble argued that the agreement for the distribution of settlement had been signed by parties to the case on Oct. 31, 2012 – just one day before the motion for recusal was filed – and that this agreement essentially excluded Connors from future involvement in the process of distribution. With nothing left for Connors to rule on in the case, Soble’s argument went, why was recusal necessary?

The motion for recusal claimed that some remarks Connors from proceedings on June 10, 2011 had lumped the prosecutor’s office in with the MDOC as part of the same government that had abused the prisoners, and thus showed bias. An excerpt from Connors’ remarks: “The record had established that the class action involved individuals who were victims of sexual abuse by the government. Three of the — all of the intervenors are a portion of the government who committed, on behalf of the government, part of that same entity.” But at the time, no party had objected to that statement as reflective of a bias that required recusal, Soble argued.

If it was too late now to use a June 10, 2011 statement by Connors as the basis for a motion for recusal, then the Nov. 1, 2012 filing of that motion was unnecessarily early, according to Soble. He sought to undercut Worthy’s claim that the motion for recusal had to be filed before the Nov. 6 election – by questioning whether an Oct. 21 visit to the Secretary of State’s campaign contribution website by the Wayne County prosecutor could sensibly be taken as the start of a 14-day window for filing such a motion. Soble pointed out that no campaign contributions were listed on that website until Oct. 25, and a 14-day window would have left room to file after Nov. 6, the date of the election.

Campaign Contributions in Judicial Race

The campaign contributions at issue were Soble’s and those of other opposing counsel, who had contributed the maximum under the law to Connors’ campaign – $3,400. But Soble cited the 2006 Adair v. State Dept. of Education opinion, which concluded: “It is simply impossible for the Supreme Court, as well as most other courts in Michigan, to function if a lawful campaign contribution can constitute a basis for a judge’s disqualification.” Soble called it “outrageous” to contend that Connors could be bought, or that Soble and his co-counsel were a part of the buying.

Soble also pointed to the various choices of words and phrasing in the motion for recusal that had no bearing on the argument for recusal – and concluded they were crafted for a “different audience” than the court. For example, the motion for recusal described “alleged mistreatment” of women prisoners by guards, when the conclusion that the guards had in fact mistreated prisoners was supported by the findings and the settlement in the case. Soble concluded that the Wayne County prosecutor had not so much filed a motion as “filed a press release.”

As Fresard reviewed the claims in the motion before Shelton, Shelton rejected the relevance of the older incidents, telling Fresard that they were long since past, and that the only thing left for Fresard to argue potentially were the campaign contributions. Fresard responded by telling Shelton that he didn’t think the campaign contributions should be considered in a vacuum.

On the question of campaign contributions, which Soble had defended by citing Adair, Fresard attempted to question the relevance of that case by noting the Adair case predated a change in court rules that now allow for a recusal to be based on the appearance of impropriety. [.pdf of original Nov. 1, 2012 filing of motion for recusal]

Based on his remarks in connection with the ruling, Shelton was not moved by Fresard’s arguments and found those of Soble to be persuasive – but chose to exercise discretion in not imposing sanctions.

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In Part 2, we wrap up other topics of the meeting. One common theme was capital investments in the community’s physical infrastructure of various kinds.

Michael Nearing, city of Ann Arbor engineer, was available for any city council questions on the East Stadium bridge project. (Photo by the writer.)

The council allocated a total of $313,000 for three different permanent affordable housing projects in Ann Arbor.

The city’s East Stadium bridge replacement project received discussion in the form of a resolution that authorized the city to go after state funding for the third time in the last three years. The anticipated construction start for fall of this year has been postponed until spring 2011 – the earlier date had been tied to the city’s application for federal funding, which was rejected this February.

The ongoing construction of the police/courts building, directly adjacent to city hall (the Larcom Building), received some tangential discussion in the form of an explanation from Roger Fraser about the recent closure of city hall due to elevated carbon monoxide levels. The police/courts building was also the subject of public commentary that prompted some extended remarks from the mayor – which were covered in Part 1 of this report.

Another construction project that will likely factor into the upcoming primary election campaigns is Fuller Road Station. The city-university collaboration to build a combined parking deck and bus station, which might eventually serve as a commuter rail station, was taken up during the council’s communications time. Christopher Taylor (Ward 3) and mayor John Hieftje both responded to some cautionary remarks made by Mike Anglin (Ward 5), which he made based on a recent park advisory commission meeting.

In business related to ethics and rules, the council voted on two occasions to excuse the participation of Taylor in a vote, because of a conflict of interest posed by his employment with the law firm Butzel Long. They also satisfied the requirement of a recent lawsuit settlement that they formally consider a rule about their use of government email accounts – by voting to remand consideration of the issue to council’s rules committee.

Housing

The issue of affordable housing was addressed during public commentary as well as in specific items of council business. One item considered by the council bundled $313,000 of support for three different initiatives: support for the recently re-organized Ann Arbor Housing Commission ($138,000); one to support the efforts of the nonprofit Avalon Housing in connection with its merger with the Washtenaw Affordable Housing Corp. ($50,000); and a foreclosure prevention initiative involving the county treasurer’s office, the Michigan State University Extension, Housing Bureau for Seniors, and Legal Services of South Central Michigan ($125,000).

The council also voted to swap out a previously approved allocation for emergency shelter that had been drawn from an inappropriate fund.

In its final item of business related to housing, the council appointed a resident member of the Ann Arbor Housing Commission (AAHC). That comes the wake of the council’s recent decision to replace the entire commission.

Housing: Public Commentary

Speaking as a member of the city’s housing and human services advisory board, Barbara Eichmuller asked the council to pass their resolution that allocated $313,000 to maintain existing affordable housing in Ann Arbor, as well as to prevent tax foreclosures. It’s costly and time consuming to replace units, she said. She urged the council to support the Ann Arbor Housing Commission as it transitions to a new business model. As a Realtor, she said, she sees every day how painful foreclosure can be. She concluded that it was a wise use of the money.

The vice chair of the housing and human services board, David Blanchard, also addressed the council on the issue of the $313,000 proposed as a housing trust fund expenditure. He described the programs as really important and salient. The funds need to be released now, he said. The AAHC has come and asked for the money – it’s essential for them to be able to retool. Avalon had come and explained that the Washtenaw Affordable Housing Corp. merger has produced a real strain on them.

Preserving basic housing stock is part of a basic strategy, Blanchard said, and foreclosure prevention needs to take place now. The county’s blueprint to end homelessness has been around for years, and looking back, there hasn’t been an increase in actual affordable units, he cautioned. What we have, he said, is “a band-aid” – there’s no other way to get around it. He spoke of the need to weather this crisis and cautioned that there won’t be a great explosion in funding in the next few years.

By way of background, Blanchard recently served as legal counsel for the case of Caleb Poirier, a resident of Camp Take Notice, a self-governed encampment of homeless people. Poirier was charged with trespassing as a result of the tent encampment’s location. The charges were eventually dropped. Poirier was in the city council audience Monday night to hear Blanchard and Lily Au – who’s an advocate for the camp – deliver their remarks to the council.

Delivering a monologue during public commentary, with herself in the role of a homeless person, Lily Au began: “I’m homeless, I have a mental illness.” In that role she described how a volunteer had driven her to Ypsilanti, she had little money left on her Bridge card, and the Delonis center serves only one meal on Saturdays and Sundays. The contents of her backpack, she said, included a Bible, which she read to sustain herself, plus her medication. She reported that Camp Take Notice had accumulated $200, but it can’t be spent, because that’s money set aside for moving, in case the Michigan State Police raid the camp. The camp is located near the interchange at I-94 and Ann Arbor-Saline Road. Referring to the parking issues on the council’s agenda, Au said that she would like to become a car, because at least then she’d have a good parking structure to live in.

By way of historical background, the rhetorical device relying on the idea that Ann Arbor has better housing for cars than for people can be traced back at least as far as Tim Colenback’s public comments at the council’s Sept. 21, 2009 meeting:

Colenback went on to enumerate some of the city’s parking structures, saying how pleased he was to have so many great places in the city where he could “house his car.” He asked that the city think of making the same commitment to housing people as it does to housing cars.

Housing: Funding Allocation

The item before the council bundled $313,000 of support for three different initiatives. At a January 2010 meeting devoted to the subject, the city council council was made aware that they’d possibly be asked to support a re-organization of the Ann Arbor Housing Commission (AAHC) with an allocation of up to $138,000, which they approved on Monday night. From Chronicle coverage of the Jan. 11 meeting: “Housing Commission Reorganizes“]:

The options for addressing the $138,163 difference, [consultant Kerry] Laycock said, included using AAHC reserves, looking at funds held by affiliated nonprofits, using in-kind services from the city of Ann Arbor, and the sale/lease of maintenance vehicles as a part of the outsourcing contract. But Laycock gave city councilmembers a heads-up on Monday night that the AAHC could be asking them for money from the Ann Arbor general fund as well.

The second item bundled into Monday’s council resolution went to support the efforts of Avalon Housing in merging with the Washtenaw Affordable Housing Corp. – that support was a housing trust fund allocation of $50,000. The merger of Avalon with WAHC was planned originally to take place during 2008-2009, but as the staff cover memo to the resolution describes, one of the major players’ support, which had been assumed, has not materialized:

[...] Michigan State Housing Development Authority (MSHDA), which was a key partner in the commencement of this merger, has taken increasingly conservative underwriting standards and is unwilling to invest in projects that they previously would have funded.

The 114 units of affordable housing maintained by WAHC, and now absorbed by Avalon, are distributed among three locations: Gateway Apartments – a 43-unit complex located on West Michigan Avenue in Ypsilanti – and two Ann Arbor locations, at 1500 Pauline and 701 Miller.

Although the Washtenaw Urban County has continued to support other Avalon-administered properties, at a recent meeting the Urban County executive committee reallocated $740,000 in funds previously designated for Gateway – moving $640,000 to Habitat for Humanity of Huron Valley for housing purchases and rehabilitation, and $100,000 to the Ypsilanti Housing Commission for Parkview Apartments, a 144-unit complex. [Chronicle coverage: "Urban County Allocates Housing Funds"]

The third program bundled into the city council’s resolution was $125,000 of support for a foreclosure prevention initiative involving the county treasurer’s office, the MSU Extension, Housing Bureau for Seniors, and Legal Services of South Central Michigan. According to the cover memo accompanying the resolution, the city’s contribution of $160,000 to the program in FY 2009 served 410 mortgage and tax foreclosure clients for a cost of an average $390 per household. Preventing foreclosure is analyzed as more cost effective than providing housing and human services to people after they are forced to leave foreclosed properties.

Sandi Smith (Ward 1), who sponsored the resolution, pointed out that the trust fund was being tapped to support permanent housing, not for human services. The money was all going to maintain currently existing permanent affordable housing, she said, urging her colleagues on the city council to support it.

An attempt by Stephen Kunselman (Ward 3) to separate out the three projects for separate votes got no traction from his council colleagues. His motion to amend the resolution in a way that would separate them out failed, because no one seconded the motion.

Kunselman indicated that he thought it was the first time the city council had ever given support to Avalon for its merger activities with WAHC. Mary Jo Callan, who heads the joint city/county office of community development, clarified that 18 month ago when the merger began, the council had authorized $195,000 for merger activities. That evening’s resolution brought the total to $245,000, she said. Kunselman asked if this was all that would be expected. Callan indicated that for these particular activities, yes.

Kunselman observed that the council was making an investment in low-income housing where Michigan State Housing Development Authority (MSHDA) had not been willing to re-invest and that it was past the date when they thought it would be wrapped up. Kunselman noted that according to a staff report, there would be $95,000 of unobligated funds in the housing trust fund. He wanted to know if that projection for the unobligated portion included the interest-only payment from the purchase on the YMCA lot. If so, Kunselman wondered if at some point the interest-only payment would come from the city’s general fund.

Kunselman allowed that the Burton Road project, which had previously been forecast to eat up a lot of the housing trust fund, will probably be unobligated. But Kunselman said it still made him “queasy,” because the general fund is supporting it. He expressed concern that there seemed to be no long-term plan and that the city was filling in gaps where the “heavy-hitters” are backing off. [By "heavy-hitters," he was referring to MSHDA]. Kunselman said that he was not sure he saw this as a good plan. He also wondered about the $130,000 for the Ann Arbor Housing Commission, indicating to city administrator Roger Fraser that he thought Fraser planned to put the amount into the budget. Fraser responded by saying he’d have to look at the issue.

Outcome: The resolution to allocate $313,000 to the three affordable housing initiatives was unanimously approved.

Housing: Funding Allocation Swap

An item that received no discussion – but served as a reminder of the allocation for emergency shelter that the council had approved at its Nov. 6, 2009 meeting – amounted to a book-keeping adjustment. The city council had appropriated a total of $159,500 in Ann Arbor Housing Trust Funds (AAHTF) for that purpose. However, a city attorney review determined that provision of an emergency rotating shelter is not an eligible AAHTF activity.

So the part of those funds designated for that purpose – a $30,500 contract with the Shelter Association of Washtenaw County – was swapped out Monday night for Ann Arbor city general funds.

Outcome: The re-allocation of the funds for the rotating shelter was unanimously approved.

Housing: Appointment of Housing Commissioner

As part of the city council’s decision on March 15, 2010 to replace the city’s housing commission board, the council restored two of the commissioners to the five-member body, one of whom was the commissioner who satisfied the legal requirement that one member be a resident of the housing stock administered by the commission – Deborah Gibson. However, Gibson, who’d been re-appointed to the board for only a one-month term, resigned in light of the council’s action, which forced the city to find a replacement for her on an accelerated schedule.

Mayor John Hieftje said at Monday’s meeting that 1,500 letters had been sent out, and that they’d received 18 applications. After winnowing through them, Sasha Wombley Womble had been nominated. Ordinarily, appointments are made in a two-step process, with the first step being the nomination, and the second step the confirmation at a subsequent meeting. Hieftje asked that the council confirm Womble’s appointment in a one-step process, because the housing commission board was to meet on that Wednesday.

Outcome: The council confirmed Sasha Wombley’s appointment to the housing commission board in a one-step process.

Construction Projects

The city council entertained discussion of a major construction project by approving a third attempt to secure funding from the state of Michigan for replacing the East Stadium bridges. The bridges span the Ann Arbor Railroad tracks and South State Street. Another planned major construction project – Fuller Road Station – received some discussion during council communications, hinting that the primary election campaign season could be starting to warm up. Reduction of warming was a benefit touted during public comment in support of porous pavement to be used in a Sylvan Avenue project. And the council received awards for two construction projects already completed.

Construction: East Stadium Bridges

The item before the council was an authorization to apply for funding from the state of Michigan’s local bridge program, administered by the local bridge advisory board (LBAB). The application is based on the understanding that the LBAB may have up to $6 million to award for FY 2013 for projects across the state. The city intends to apply for $3 million to support the East Stadium bridge replacement project, which carries a price tag of $23 million.

A timeline overview of some of the bridge’s history:

• 1917: Bridge is built.
• 1973: Voters approve a millage to fund a bond to repair the East Stadium bridge. The proposed bond sale on the ballot included $800,000 for creation of a citywide bicycle system using existing streets and new pathways, and $360,000 designated for repair of the Stadium bridges. At the time the debate centered on whether the new bridge design should accommodate a wider roadway for State Street. On the same ballot was a transit millage, which passed as well – the same millage that supports today’s AATA.
• 2006: City of Ann Arbor is awarded $766,000 from Michigan’s local bridge program, but the city allowed the award to expire a year later, because the amount did not go far enough towards funding the project – the alternative to expiration would have been to spend the MLBP money towards bridge reconstruction.
• 2006: The city pays $1,249,467 to Northwest Consultants Inc. (NCI) for preliminary design engineering for the comprehensive bridge project that included bridge replacement, a transmission water main, storm sewer, and a South Main non-motorized path.
• 2007: After a biannual inspection of the bridge, weight limits were reduced on the span. The limits were set as follows: 31 tons (reduced from 38 tons) for one-unit trucks (e.g., school or AATA buses); 39 tons (reduced from 48 tons) for two-unit trucks (e.g., a single-trailer semi); 44 tons (reduced from 54 tons) for three-unit trucks (e.g., a semi with two trailers)
• 2007: On Sept. 18, 2007 and Oct. 2, 2007 at Pioneer High School’s cafeteria, informational workshops are held on a comprehensive project to address replacement of the span over State Street as well as the one over the railroad, including non-motorized improvements (i.e., sidewalks) extending along Stadium Boulevard to Main Street and south along Main to Scio Church road. Those workshops  are well attended, especially by members of the Ann Arbor Golf and Outing Club, which is located near the bridges.
• 2007: On Dec. 29, 2007 there are reports of “medium-sized pieces of concrete” falling off one of the 16 pre-stressed concrete box beams supporting the roadway.
• 2008: Early January re-inspection by city staff and bridge engineering consultants leads to the short-term recommendation of a traffic control order further reducing weight limits: 19 tons for one-unit trucks (e.g., school or AATA buses); 24 tons for two-unit trucks (e.g., a single-trailer semi); 26 tons for three-unit trucks (e.g., a semi with two trailers).
• 2008: In March, the vision for a comprehensive renovation of the bridges meets with a funding setback. The Michigan Department of Transportation awards only $760,000 for the project, though the total cost was estimated at that time at around $35 million.
• 2008: On Oct. 22, 2008 Northwest Consultants Inc. performs biennial inspection.
• 2009: In early February, the engineering consultant for the bridge, Northwest Consultants Inc., is called back to re-examine the bridge. A 7/8 inch deflection of the beam is found. [Chronicle coverage: "Discontent Emerges at Caucus" and "Building Bridges"] Bridge safety rating has dropped to 2 on a scale of 100.
• 2009: In March, traffic is rerouted so that it’s limited to the northern lanes, and does not pass over the beams showing deflection. [Chronicle coverage: "How the E. Stadium Bridge Gets Monitored" and "Council Gets Update on Stadium Bridges"]
• 2009: On Sept. 15, 2009 the bridge inspection consultant, Northwest Consultants Inc., inspects the East Stadium bridge over South State Street, and recommends removing the five southernmost beams.
• 2009: On Oct. 5, 2009 the city council authorizes expenditure to remove five beams.
• 2009: On Oct. 28, 2009 and again on Dec. 1, 2009, public meetings are held to discuss design.
• 2009: In November, five beams are removed from the bridge.
• 2009: In November, the state’s local bridge advisory board awards no funds for the Ann Arbor bridge project, citing the lack of any other non-city funding available for the project. [Chronicle coverage: "State Board: No Funding for State Bridges "]
• 2010: In February, the US-DOT announces the final recipients of the federal TIGER grant – they do not include the city of Ann Arbor.

At Monday’s council meeting, Margie Teall (Ward 4) asked Homayoon Pirooz to take the podium – he’s head of project management for the city. She led off by asking him to explain what the local bridge program is.

The Michigan Dept. of Transportation (MDOT) makes funds available to cities every so often through the local bridge program, not every year, explained Pirooz. The city’s application last year was for the FY 2012 budget, and the city did not receive approval, he reminded councilmembers. Since that time, he said, the city of Ann Arbor has been in constant communication with MDOT, and MDOT has encouraged Ann Arbor to apply again – for FY 2013. So Ann Ann Arbor is applying for $3 million from the local bridge program.

The city has been working on additional funding strategies, Pirooz reported, and since June of last year there have been some successes and some disappointments. The major disappointment was Ann Arbor not being selected for the federal TIGER (Transportation Investment Generating Economic Recovery) grant, which would have paid for almost all of the project.

Among the successes that Pirooz reported was $8 million that the city could “almost count on” as part of an earmark in the federal surface transportation fund. There’s also an MDOT transportation enhancement grant, which could mean as much as $1.5 million to fund the non-motorized improvements that are part of the project. That would bring the non-city share of the $23 million project to $12.5 million. The design is expected to be complete this summer.

The construction, which had originally been announced to start in the fall of 2010, said Pirooz, had been tied to the application requirements of the TIGER grant.

Teall asked if the city was still going after some other federal grants. Pirooz said that there had been some talk of a “mini-TIGER grant” and the city would apply for that if it becomes available.

Mayor John Hieftje indicated that a formal announcement hasn’t been made of the second round of TIGER funding, but that Congressman John Dingell believes a second round of funding will happen.

If the construction starts in March of 2011, Teall wanted to know how long it would last. Pirooz indicated that it would depend on whether the bridge was completely closed to traffic during the construction period. If the bridge is completely closed to traffic, he said, the construction would take around 18 months. If one lane is left open, that would add six months to the schedule, he said. Teall confirmed with Pirooz that the longer the project takes, the more it will cost.

Stephen Kunselman (Ward 3) confirmed that this would represent the third attempt to get funding from the state’s local bridge program. Kunselman also confirmed that the letter from MDOT indicates that the reason the city did not receive money during the most recent round of funding was that the city had no outside funding for the project.

Kunselman wanted to know why the city’s position was any different now than before, with respect to outside funding that had actually been secured. Pirooz indicated that the city was in the process of securing it, citing the $8 million in surface transportation funds. Kunselman confirmed with Pirooz that the $8 million was not “for sure.” Pirooz allowed that “nothing is for sure.”

Kunselman wanted to know what the city’s chances are. “Better than last time,” said Pirooz. Last time, he added, the city had ideas about sources, and the city told MDOT that, but the city couldn’t say how much from each source it could expect. Someone has to offer part of the funding and then the city can go after the other parts. Last time, the state’s local bridge program didn’t want to be the first award of money. This time, explained Pirooz, the city can tell the state that $8 million in federal surface transportation funding is in the works and that a $1.5 million transportation enhancement grant is in the works.

The tone of the conversation has changed, said Pirooz. Asked by Kunselman if the money had been promised, Pirooz said that no, it would not be wise for anyone to make that assumption. He estimated that the chances for getting funding from the state’s local bridge program was 70-80% this time, when last time it had been perhaps 30-40%.

Kunselman asked about the plan for the city to use two years worth of its street repair millage. City administrator Roger Fraser explained that the use of the street repair millage to fund the entire project had been the “fall-back plan.” Fraser said the city staff is trying to do “anything but that.” If the city was forced to do that, Fraser said, then “we’ll have a serious conversation with you.” That conversation would come as early as this fall, if the city can’t obtain the dollars.

When asked by Kunselman if the project would start this fall if the local street repair millage had to pay for all of it, Fraser stressed that the fall 2010 construction start had been based on a requirement of the TIGER grant application. It will now be a spring 2011 construction start, but funding needs to be in place by the end of the year.

Christopher Taylor (Ward 3) asked at what point the $8 million of federal surface transportation funding becomes certain. Pirooz indicated that in the process, the first step was WATS (Washtenaw Area Transportation Study) approval, and that’s been done. The next step, said Pirooz, is for SEMCOG (Southeast Michigan Council of Governments) to approve it, which the city believed it would. Once that happens, said Pirooz, the city had a promise that the surface transportation program would pay the $8 million. The one last piece is the federal highway bill – the surface transportation program is part of that, and it’s still in the Congressional approval process. As long as there’s a highway bill, said Pirooz, the $8 million will happen. There’s a “slim to none” chance that the highway bill won’t happen, he said.

Outcome: The council unanimously approved the authorization to apply for funding from the state’s local bridge program to help pay for the replacement of the East Stadium bridges.

Construction: Fuller Road Station

Eli Cooper has presented the Fuller Road Station project on several occasions to different public bodies, most recently at an Ann Arbor Transportation Authority board meeting [Chronicle coverage: "AATA Gets Its Fill of Fuller Road Station"] Cooper also presented an update on the project to the city’s park advisory committee (PAC) at its March 16, 2010 meeting.

The city council appoints two of its own members as non-voting ex officio members of PAC: Mike Anglin (Ward 5) and Christopher Taylor (Ward 3).

At Monday’s city council meeting, during his communications time, Anglin reported that when Cooper had made his presentation at the March 16 PAC meeting, a lot of concerns were raised – noting that it is the park advisory commission, and that naturally they’re passionate about the parks – “as they should be,” he said. The city/university were working together, said Anglin, to build what most people see as a parking structure. Anglin said he shared some of their concerns, but also sees the larger vision [of a train station for commuter service] that could take place. The fact that there’s no guarantee that the train will become a reality is a concern to many people, he noted, especially at a time when the city is cutting expenses.

Taylor indicated that compared to Anglin, he had a somewhat different take on the PAC meeting, as far as the nature of the concerns that were expressed there. He suggested that among PAC members the main focus of concern was whether the city was getting a “sufficient deal” as expressed in the memorandum of understanding. The equity of the deal between the city and university was something that everyone would need to keep an eye on, Taylor said.

Mayor John Hieftje took up the issue of Fuller Road Station, saying that a question from the previous night’s caucus about when a specific set of information would be posted on the city’s website had been looked at by city staff. He also took the opportunity to respond to Anglin’s remarks on Fuller Road Station, pointing out that the last time the council had voted on it, Anglin had supported it.

Construction: Plymouth Green Crossings

The item that came before the council was a request for a change in the PUD agreement for the Plymouth Green Crossings project. What the change did was swap out a proposed restaurant for 26 temporary parking spaces plus 11 motorcycle spaces. At a planning commission meeting in February, the change received support of all five commissioners who were present, but fell short of the six votes needed to win an official “recommendation” from that body. [Chronicle coverage: "Plymouth Green Crossings Gets Every Vote, Still One Short"]

During public commentary at the city council’s Monday night meeting, Jim Mogensen told the council that the project had an interesting history. He said he first learned about it from a clerk’s report and he noticed that the project was going to need a water permit from the MDEQ. Mogensen said he just happened to be in the city hall building, and he asked Jerry Hancock about it, who said, What project?  [Hancock is Ann Arbor's stormwater and floodplain programs coordinator.]

Any citizen can call for a public hearing, Mogensen said, which he did. And that caused a delay, which gave Hancock some additional time to review the plan. Now there’s a bunch of underground detention tanks – which were required of the developer – that would not have otherwise been required. He asked the council to think about the tanks – whether it’s a parking lot or a restaurant, eventually the tanks will fail. If it’s a substantial building on top of the tanks, what do you do?

The other part of the project involves payments into the affordable housing fund by the developer, which the developer has experienced difficulty making, Mogensen noted. When a developer of a property has a problem, Mogensen observed, society will sort out the solution for the developer. What happens, though, when a tenant has a similar problem?

Outcome: The city council voted unanimously without discussion to approve the amended Plymouth Green Crossings PUD agreement.

Construction: Porous Pavement on Sylvan Avenue

Sylvan is a short one-block-long street running east-west, nestled into the upside down”V” formed by State and Packard streets, near Yost Ice Arena. At the city council’s Oct. 5, 2009 meeting, the city council had already approved an expenditure for $54,271 to pay for engineering services (from Fishbeck, Thompson, Carr & Huber, Inc.) for the Sylvan Avenue porous pavement project.

At that meeting, Margie Teall (Ward 4) had requested that it be pulled out of the consent agenda for individual consideration. Nick Hutchinson, a civil engineer with the city, fielded questions from Teall, in whose ward Sylvan Avenue is located. At that time Hutchinson indicated that the project should be finished in the spring of 2010.

At that October 2009 meeting, several benefits of porous pavement were drawn out. Many of them were the same as those mentioned at Monday’s meeting by Vince Caruso during public commentary. He noted that the U.S. Environmental Protection Agency considered it best practice: it reduces heat in the summer, it’s quieter under traffic load, requires less salt and plowing during the winter, because as the snow and ice melt, the water drains straight through.

The project’s budget is $481,245, drawing funding from the street reconstruction millage ($159,983) and the stormwater maintenance fund ($321,442). The stormwater funding portion of the project will be repaid as a loan secured by the office of the Water Resources Commissioner [formerly called the Drain Commissioner].

Before the council on Monday night was the approval of a construction contract with ABC Paving Co. for $343,875.

Outcome: The council approved the construction contract with ABC Paving Co. for $343,875.

Construction: Awards

The city council bore witness to the presentation of two awards from the Michigan chapter of the American Public Works Association (APWA). As part of their Project of the Year Awards, the city of Ann Arbor had won an award for the Huron Parkway-Nixon Road intersection improvements. The project won in the category of transportation projects under $2 million. The city also won an APWA award for the Harvard Drain and Nichols Arboretum stormwater enhancement project. The arboretum project won in the the environment category for projects under $2 million.

Making the award on behalf of the APWA was Evan Pratt, who is familiar to the city council as a member of the city’s planning commission. Pratt stressed that he was not part of the awards committee for the APWA. The APWA’s 29,000 national members, Pratt told the council, includes 800 members of the Michigan chapter.

Construction: Carbon Monoxide Levels

As a part of his city administrator’s report, Roger Fraser told the council that on the previous Wednesday afternoon [April 14], the carbon monoxide (CO) monitors in the building had started to ring shortly after 1 p.m., and that city hall – the Larcom Building – had quickly been cleared. They asked the fire department to come measure with their more sensitive equipment and firefighters had confirmed elevated CO readings in Larcom and the adjacent police/courts building currently under construction.

Speculation on Wednesday afternoon was that those CO emissions had come from several factors. There were strong winds out of south, and at the base of a hole where an excavator was working there were 8-inch uncapped wire feeds. Also, while work is being done in the basement, there is an opening in the south side of the building. The working theory was that diesel fumes were being sucked into the building through the wire feeds and the opening in the basement via the stair towers that have their base in the basement.

Overnight, there were clear CO levels, said Fraser. And the 6 a.m. test indicated clear readings. Staff had been told the day before that unless they heard otherwise, the plan was for everyone to come in to work as usual. After 7 a.m., the CO alarm went off again. “We were dumbfounded,” said Fraser. It turned out that a propane-operated skid loader working in the basement was emitting high levels of CO and was probably causing previous CO readings, not the excavator. Propane-operated equipment is not supposed to emit CO, said Fraser. The city has done additional sealing work and has looking into the issue of the skid loader, Fraser said.

City Charter and Council Rules

The city council considered a rule on email, and demonstrated in actual practice how a charter provision governs council conduct.

Charter and Rules: Email Rule Consideration

Marcia Higgins (Ward 4), who chairs the city council’s rules committee, asked that a resolution be added to the agenda that would formally direct the council’s rules committee to take up the issue of a rule on the councilmembers’ use of government email account to do its city business.

Whereas, The Council has agreed to consider the following amendment to the Council 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 communications regarding political activity.”

Whereas The Council considers it appropriate to have the Council Rules Committee review this Rule further;

RESOLVED, The Council formally considers this Rule and directs the Council Rules Committee to review the Rule further.

The consideration of the rule stemmed from a requirement in the terms of recent lawsuit that the city settled. [Chronicle coverage: "City Settles Lawsuit, Must Conduct Study"] The settlement agreement specified that:

21. As the City Council has previously been reviewing e-mail usage policies, the City Council will further consider the following amendment at the April, 2010 Council meeting(s), “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.”
22. The Plaintiffs recognize that the City Council will address this through the council process and that this Agreement is not dependent on any particular result, other than the Council formally considering this possible amendment in some manner in April, 2010. The parties recognize that such a rule, even if adopted, is not binding on any subsequent Council and each new City Council enacts new rules after each general election.

There was no consideration by the council at Monday’s meeting in terms of a debate or discussion of the merits of amending their set of rules in the manner so specified. The scant discussion centered on an explanation from city attorney Stephen Postema that there was no requirement under the settlement terms that the council do anything with the rule. But Postema asserted that it was appropriate for the council to look at the rule. Postema did not repeat a previous statement he’d made to the media that to his knowledge the council used the government email system for their city business. Instead, he said he knew that councilmembers generally used the system, but allowed that there are difficulties in using it.

One of the issues that such a rule might address is the city of Ann Arbor’s failure under Freedom of Information Act (FOIA) requests to produce electronic communications by city councilmembers or other public officials that are sent using non-government email accounts. In The Chronicle’s most recent experience on April 13, 2010, the city failed to produce such records at least in part because the city does not consistently request of public officials that they produce writings from their non-government email accounts, which could be responsive to FOIA requests.

Despite a lack of discussion, by using the statement, “The Council formally considers this Rule …” the council can rely on the statement as a performative utterance to satisfy the requirement of the settlement agreement. Performative utterances, as explicated by J.L. Austin in his seminal work “How to Do Things With Words,” are sentences that are neither true nor false, but which are used to perform some act upon the world. Standard examples of these kinds of sentences include:

1. ‘I do’ in a marriage ceremony.
2. ‘I name this ship the “Queen Elizabeth.”‘
3. ‘I give and bequeath my watch to my brother’ as in a will.
4. ‘I bet you sixpence it will rain tomorrow.’

Some things are not achievable with a performative utterance, of course. For example, “I hereby lift this piano” does not effect a piano lifting.

Mayor John Hieftje was keen to emphasize that the settlement agreement would not cost the city anything, because the environmental study, which is also a requirement of the settlement, was being performed in-house.

Outcome: The council unanimously approved the remand of the email rule to its rules committee.

The council’s rules committee will be adding the consideration of an email rule to its current work plan of developing an ethics policy for the council.

Charter and Rules:  Glacier Hills and Jolly Pumpkin

Some of the ethical considerations under which the council does its work are prescribed not by council rule or by an ethics policy, but by the city charter. Applied on two occasions Monday night was the following charter provision:

4.4 (f)  Except as otherwise provided in this charter, each member of the Council present shall cast a “yes” or “no” vote on each question before the Council, unless excused therefrom by a vote of at least six members.

The reason for excusing Christopher Taylor (Ward 3) from voting on those two occasions was also charter-based:

4.4 (i) A member of the Council shall not vote on a question in which the member has a financial interest, other than the general public interest, or on any question involving the member’s own conduct. If a question is raised under this section at any Council meeting concerning the eligibility of a member of the Council to vote on any matter, such question shall be finally determined by the concurring vote of at least six members of the Council, not including such member.

Specifically, Taylor explained to his council colleagues, his law firm Butzel Long represented a potential beneficiary of the council’s action in two cases.

First, Butzel Long represents Jolly Pumpkin. So the council voted to excuse Taylor from the discussion on a resolution that allowed for a new outdoor service area for the Main Street bar.

Outcome: The new outdoor service area for Jolly Pumpkin was unanimously approved.

Second, Butzel Long provided the bond counsel for the city’s Economic Development Corporation (EDC) in connection with an EDC project that Glacier Hills had applied for – it includes $23 million in bonds. So the council voted to excuse Taylor from the discussion of that project, which was approved. As part of the resolution, two people were added to the EDC board: Dan Slee and John A. Rasmussen, who are representative of neighborhood residents and business interests likely to be affected by the project.

Outcome: The resolution to approve the EDC Glacier Hills project was unanimously approved.

During public commentary at the end of the meeting, Stephen Ranzini, a member of the city’s EDC, thanked the council for passing the resolution and reminded the council to use their leverage with business owners, because the EDC had been allocated $17 million in tax-free bonding authority as part of the federal stimulus package. The Washtenaw County EDC, for which Ranzini also serves as vice chair, had been awarded another $33 million in tax-free bonding authority, said Ranzini. He noted that neither the city nor the county EDC had received any applications for funds – despite Ranzini’s attempts to to communicate through Ann Arbor SPARK, and through personal meetings. [See Chronicle coverage of Ranzini making the same point to the Ann Arbor DDA and of a recent Washtenaw County Economic Development Corporation meeting.]

Street Lights

Pulled out of the consent agenda for specific consideration was an item that approved a contract with DTE to convert 58 conventional streetlights to LED  fixtures. The location of the lights is the Hill-Packard-East University neighborhood, which was chosen in part in response to concerns about safety raised by some University of Michigan students in 2008.

As part of the contract, DTE is dropping the annual charges for the streetlights from $11,887 to $6,293.  The annual savings of $5,594 would result in a four-year payback on the city’s share of the $22,288 conversion cost. The city and DTE are splitting the conversion costs 50-50.

Sandi Smith (Ward 1) called that kind of collaboration “exciting” and asked Andrew Brix to take the podium. Brix is the city’s energy programs manager.

Brix said that the city had been at the forefront in moving towards LED back in 2005. They’d been working with DTE on the issue. The state Public Service Commission had ordered DTE to produce a proposal for a uniform tariff for LED lights, Brix said, but they were “not there yet” based on what they submitted.

Stephen Kunselman (Ward 3) asked about the safety issue and how the LED bulbs addressed it. Brix explained that the LEDs would produce “whiter” light and better color conditions. “You’ll be able to make out color,” he explained.

Asked by Margie Teall (Ward 4) what kind of fixtures were chosen, Brix said it was the same fixture used on Nixon Road – it was DTE’s choice, but the city was happy with it, he said.

Mayor John Hieftje noted that it’s difficult to work on something owned by someone else and that the city had to win DTE’s cooperation.

Brix broke down the statistics for streetlights: The city owns 800 streetlights outside the downtown. The other 5,500 are owned by DTE.

Christoper Taylor (Ward 3) said he wanted to “pile on the praise” for DTE taking the step. He also noted that in connection with the A2Fiber response to Google’s request for information, DTE had been a “100-percent partner” on the project.

Hieftje allowed that he’d been impatient at the pace that the LED conversion has been moving forward, but that from DTE’s point of view, they are setting a precedent, so DTE is reluctant to go too fast.

Crosswalks

Resident Kathy Griswold addressed the council once again on the topic of moving the mid-block crosswalk at King Elementary School from its mid-block location to a four-way stop intersection about 300 feet away. She reported that she’d sent an email that day to Todd Roberts, the superintendent of the Ann Arbor Public School system, asking him to email city administrator Roger Fraser stating his support for the move.

Griswold noted that the parents of children attending the school are instructing their kids to cross at the intersection, but that the school crossing guards can’t guard that crosswalk – they can only serve at the mid-block location. A request made under the Freedom of Information Act, said Griswold, had revealed over 50 emails, but the project had come to a halt in the fall of 2009. It seemed mysterious, she said. She expressed the hope that she’d only be at council a few more times talking about the crosswalk.

How many times has Griswold addressed the council on the King School crosswalk issue? Here’s a (possibly incomplete) chronology:

• 2009 Aug. 16 city council caucus [link]
• 2009 Nov. 5 city council meeting [link]
• 2009 Dec. 21 city council meeting [link]
• 2010 Jan. 4 city council meeting [link]
• 2010 Feb. 1 city council meeting [link]
• 2010 Feb. 16 city council meeting [link]
• 2010 March 15 city council meeting [link]
• 2010 April 5 city council meeting [link]
• 2010 April 18 city council caucus [link]

Also crosswalk related, during his communications time Carsten Hohnke (Ward 5) reported out from the WATS policy committee that there would be a presentation on HAWK (High Intensity Activated Crosswalk) signals at the next meeting. The city is looking at the possibility of a HAWK signal for the crossing at Third & Huron, near the Ann Arbor YMCA.

Other Commentary

Appearing briefly during public commentary to thank the council was the new executive director of the Leslie Science Center, Greta Brunschwyler. She thanked city administrator Roger Fraser and said she look forwarded to continued partnership.

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

Next council meeting: May 3, 2010 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]

But it wasn’t the bike path that drew more than 20 people to speak at a public hearing. That turnout was for the adoption of the Downtown Plan. It was ultimately adopted as amended by the city’s planning commission so that the D2 buffer in the South University area is a small area in the southeast corner.

The expected vote on the City Place project along Fifth Avenue was delayed again after additional technical errors by planning staff were discovered related to the planning commission’s April meeting. That project will now start over with the planning commission public hearing.

Audience members who waited until the end of the long meeting heard Mayor John Hieftje appoint a subcommittee of councilmembers to meet with the DDA’s “mutually beneficial” committee to discuss the parking agreement between the city and the DDA.  In the discussion after the jump, we provide a record produced in the preliminary response to a Chronicle FOIA, which dates the renegotiation of the parking agreement to as early as September 2008 and connects it to discussions between the mayor and a candidate for the DDA board, Keith Orr, who was eventually appointed to the board.  The record shows that his appointment was not contingent on a commitment to a particular vote on the parking agreement.

Development – Downtown Plan

More than 20 people spoke at the public hearing on the adoption of the Downtown Plan. Readers interested in details of their comments can view the video of Monday’s meeting here.

Downtown Plan Background

In broad strokes, what’s at issue are two kinds of policy: zoning ordinances and planning documents. Ideally they should support each other and not be in conflict. The Ann Arbor Discovering Downtown (A2D2) process was an effort to revise both the zoning ordinances and planning documents to bring them up to date to reflect the goals for future development, and to make them compatible.

The city’s planning commission recommended a set of new zoning ordinances and sent those to the city council for final approval this spring. The council made its own revisions to the zoning ordinances that had been recommended by planning commission. The city council has the legal authority to adopt those ordinances as amended with no further input from the planning commission. While council has completed the preliminary step (the “first reading”) for approval of the zoning ordinances, the final step (“second reading”) is not scheduled until July.

Earlier in the spring, planning commission also sent to the city council its recommendation for a new Downtown Plan, which was considered by the city council after it had undertaken changes to the zoning ordinances recommended by the planning commission. The Downtown Plan that had then come from planning commission – while consistent with the planning commission’s recommended zoning ordinances – was inconsistent with the changes that city council had made. But council does not have the legal authority to amend the Downtown Plan  and adopt the plan as amended. Instead, council must vote the plan up or down – the two bodies (planning commission and city council) must adopt the same plan. Council and commission have equal status in this case.

So when the Downtown Plan first came before the city council several weeks ago, it was rejected and sent back to the planning commission.

Planning commission then reconsidered its Downtown Plan in light of city council’s zoning changes and revised the plan – but a major inconsistency remained between the version of the Downtown Plan presented to the city council this past Monday (June 15, 2009) and the zoning ordinance package that, procedurally speaking, is between its preliminary and final approval by the city council.

At its June 15 meeting, then, the city council faced essentially two alternatives: (i) insist upon a Downtown Plan that was exactly consistent with the zoning ordinances it wanted to pass and send it back to planning commission, or (ii) accept the Downtown Plan, together with the implication that council would need to revise the zoning ordinances to be consistent with that Downtown Plan.

Previous Chronicle coverage of the interplay between planning commission and city council can be found here. One key issue is the setting of the D1/D2 boundary in the South University area: planning commission recommended a very small D2 buffer area in the southeast corner, whereas council had seen fit to assign the D2 zoning designation to the southern half of South University.

Downtown Plan: Deliberations

Councilmember Marcia Higgins (Ward 4) opened deliberations by suggesting the addition of a resolved clause, which would direct staff to revise the zoning map in accordance with the revised Downtown Plan that planning commission had forwarded to the council. Otherwise put, the resolved clause would take the council down path (ii) above.

The resolved clause also stipulated that on July 6 the zoning ordinance revisions would be brought back before the council for an additional first reading. Tony Derezinski (Ward 2), an attorney himself, asked if that point had been reviewed by the city attorney, and Higgins clarified that the decision had come directly from the city attorney’s office.

At issue legally would have been whether these new changes to the zoning ordinances – which were procedurally between their preliminary and final passage – were substantial enough to require starting the process over with a first reading. In the view of the city attorney, they were substantial enough to restart the process.

Councilmember Christopher Taylor (Ward 3) said that he was against accepting the Downtown Plan as is. He acknowledged that with respect to the Downtown Plan, planning commission and the city council were on an equal level. Specifically, it was not up to city council to amend and then adopt a plan, but rather they needed to accept or reject the plan as a whole.

Taylor noted that city council had undertaken a specific action to designate South University areas outside of the Downtown Development Authority district as D2 zoning and that within a short time following that decision the planning commission had contravened it. He allowed that the planning commission had a right to vote its conscience on the matter. He contended that though the two bodies on this question were co-equals, that elected officials had some incremental measure of preference. The fact that planning commission had not respected council’s decision reflected a “failure of process,” he said, and he continued by stating that planning commission should have respected the decision of the “electeds.”

Speaking by phone the following day with The Chronicle, Taylor clarified that the distinction he was drawing between the two bodies did not have to do with the status of planning commission as volunteer public servants versus the paid public servants on council but rather was rooted specifically in the more direct connection – via election – of the council with the community. Asked by The Chronicle if he’d reflected on the fact that the three-year appointments of planning commissioners gave that body a greater buffer against “political fads” than council enjoyed [councilmembers are elected to two-year terms], Taylor said that in this case he gave priority to direct democracy as opposed to checks-and-balances.

[Editorial aside: In considering the priority assigned to the two different bodies, it's worth factoring into the mix the presumably greater expertise in subject matter that planning commissioners have for a planning exercise as compared to councilmembers – which is not to suggest that all planning commissioners are architects or urban planners by trade. They're not.]

Higgins, for her part, said that she supported the Downtown Plan. For her, the critical point was that changing the lower half of the South University area to D2 zoning would amount to “down zoning.”

Leigh Greden (Ward 3) noted that the city council did not have the legal authority to amend and adopt the plan. To send the Downtown Plan back to planning commission would delay a plan that had several significant improvements over the current plan, including a height limit, said Greden. Stephen Rapundalo (Ward 2) echoed the same sentiments as Greden, adding that it was important to retain the D1 zoning designation along East Huron Street for the technical reason that to make it D2 would result in existing properties’ nonconformance.

Margie Teal (Ward 4) said she shared Taylor’s perspective and was disappointed about the redesignation of most of South University as a D1 area but thought that she would probably vote for it for the good of getting it in place. She was not convinced, she said, about having D1 zoning outside the Downtown Development Authority district.

Sabra Briere (Ward 1) said she had gone to the planning commission meeting and watched that body decide as it went through its revisions to the Downtown Plan. She said it was not any easier for that body than it was for the city council. She commended Taylor for saying that what council had marked as D2 should stay as D2. She said that the question to ask was whether that area should be a buffer or whether it should be built to a maximum 150-foot height limit. She was not comfortable with the idea that the document could become a ping-pong ball, she said. However, she did not support the Downtown Plan’s adoption.

Outcome: The city council adopted the revised Downtown Plan as put forward by the planning commission, with Taylor and Briere dissenting.

Development – City Place

City Place had been postponed already from the last council meeting due to errors in the online documentation.

City Place Public Hearing

Jim Mogensen: This is a “by right” project, he began, which he characterized as meaning that everybody basically has to say this is the way it has to be. He said that the project reflected a “community failure.” The way the project had evolved came from the playbook of the developer, he added, and it was the same narrative that had been told in connection with the 828 Greene Street development. Mogensen said he didn’t understand why the proposal for the Germantown study committee did not happen at the same time that 828 Greene Street had been proposed. He acknowledged that there was a plan to look at the R4C (multi-family dwelling) zoning, but noted it would be an effort complicated by the fact that there was a need to have multi-family zoning so that students would be able to live there. An additional constraint is that it wasn’t desirable to undertake zoning that amounted to a “property taking.”

Tom Luczak: Luczak said he appreciated the fact that city council had seen fit to reexamine R4C zoning in detail. But suggested the following analogy for not deciding to put a moratorium on development in R4C zoning districts: It would be like conducting a study to see if you should close the horse barn and having Secretariat [Triple Crown winner] run out of the barn during the study period. He contended there were many gray areas in the zoning code, among them the definition of roof height.

Alex de Parry: De Parry introduced himself as the project owner and noted that he had the entire development team with him if council had any questions. He told the city council that they had before them a project that meets the zoning and code requirements of the city of Ann Arbor and cited its conformance with the following chapters: 55, 57, 59, 62, 63, 105. He described the project as using the latest in energy technology. He said that the 24 six-bedroom units each would be equipped with a kitchen, living room, dining room and that, contrary to rumor, bedrooms would not be equipped with a kitchen. De Parry pointed to three other projects that had used the same interpretations of terms like “dormer,” “ridge height,” and “window wells”: 133 Hill Street, 922 Church Street and 818 Forest.

John Floyd: Floyd said that the decision not to do a study on the question of whether a historic district should be established in the area was a failure of process, “a grand mistake.” He suggested that it was an opportunity to run the government in a more straightforward way, and not just use process when it meets a predetermined end.

Scott Munzel: Munzel is legal counsel on the project. He noted that the homes slated for demolition are older, and are divided into rentals, and represented quite an investment to maintain. He said that it was not a realistic option for owner-occupiers to purchase them and rehabilitate them. He continued by saying that the law is very clear for site plan approval, noting that city council’s role is very limited. He said that the Central Area Plan is not legally relevant – though he noted that the project in many ways does, in fact, meet the goals of the Central Area Plan. He allowed that the buildings are old and attractive, but concluded that the decision is straightforward.

Fred Beal: Beal introduced himself as a member of the Downtown Residential Task Force. He described the project as beneficial because it increases density in an edge area. He said it should be approved because it meets zoning and that he’d like to see more of this kind of project.

Brad Moore: Moore is the architect on the City Place project. He stressed that the interpretation of the code of the city of Ann Arbor had been the same for this project as for every other project examined by the planning staff and the planning commission. That included setbacks, reach height, unit size, sized bedrooms, etc.

Yousef Rabhi: Rabhi said that as a student at the University of Michigan and a future lifelong resident of the city of Ann Arbor, he wanted to live in a city of cultural significance.

Ray Detter: Detter noted that city council was considering the Downtown Plan that evening and that he did not see how tearing down the seven historic houses was consistent with the Downtown Plan or the Central Area Plan. About the proposed building, Detter said, “It’s a dog,” from a design point of view. The problem in this case, Detter said, had resulted from planning documents that were inconsistent with zoning documents.

Lou Glorie: Glorie sketched out an analogy with a medical procedure – a needle biopsy, in which “needle” is a euphemism for a much larger implement. The point of comparison was “public process,” [echoing a sentiment from John Floyd, an earlier speaker]. Glorie characterized the public process as consisting of a conversation that began with the chamber of commerce, developers, councilmembers and ultimately was controlled by those parties. She suggested that urban sprawl had been replaced by the desire to pack 1,000 more souls into the downtown of some city. “Concrete is the new green,” she concluded.

City Place Deliberations

Carsten Hohnke (Ward 5) began deliberations on the City Place site plan approval by indicating to his colleagues that he had brought information to the city attorney’s office concerning a possible conflict of interest on his part with respect to the City Place project. He stated that councilmembers had the analysis provided by the city attorney’s office and indicated he was prepared to accept their recommendation, if any, on the topic. [Council rules require members to vote on any resolution before them, unless their colleagues request by a majority vote that a councilmember recuse himself/herself.] No one moved that Hohnke should recuse himself.

Instead of deliberating on the resolution before them, a completely different resolution was substituted – and that resolution called for the site plan to be returned to the planning commission to be reconsidered. Kevin McDonald, senior assistant city attorney, clarified for councilmembers that the parliamentary mechanism by which the substitution would be achieved was the same as that used for an amendment. In this case, however, the “amendment” to the resolution replaced the existing language in its entirety with new language.

The reason cited for the return of the site plan to planning commission was errors in the documentation provided by planning staff in connection with the commission’s April meeting on the plan. This marked the second council meeting in a row at which a vote was expected on the site plan by council, but did not happen. Two weeks ago, council delayed the decision for two weeks due to errors in the documentation provided online for council’s meeting that week.

The expected time frame for reconsideration of the site plan by the planning commission is for a new public hearing and recommendation to be made at the planning commission’s July 7, 2009 meeting. Assuming the planning commission makes the same recommendation as before, it would come before the city council on July 20, 2009.

Taylor asked what the affects of the substitution resolution would be on the public hearing that had just been held. Hieftje clarified that there would be another public hearing, assuming that planning commission again recommended that the site plan come to city council. Rapundalo asked whether this procedural development had been discussed with the petitioner. Hieftje indicated he was not sure, but assumed that the petitioner was learning of the situation in the same way that he himself was. Higgins had indicated she was sending to all of her colleagues an email with the replacement language.

Derezinski, who is the city council’s representative to planning commission, said this was simply a technical glitch, and that there had been a thorough discussion and deliberation on the site plan at the planning commission’s meeting in April. He described the return of the matter to the planning commission as simply exercising caution and making sure that every aspect of due process was respected.

Higgins took care to point out that the decision to return the product to the planning commission was in no way a negative reflection on the developer and that there had been no error on his part.

Outcome: The decision to return the site plan to planning commission passed unanimously.

Development – What Goes On Top?

The city council entertained a resolution that established a site development committee to initiate a search for a private development partner for the South Fifth Avenue underground parking structure site.

It was a resolution brought by councilmember Sandi Smith (Ward 1). At the previous council meeting, she had alerted her colleagues of her intention to bring the resolution. At that meeting she described her intention to call for a request for qualifications (RFQ). However, on Monday she indicated that she had rethought that intention, saying it was to be the purview of the committee to determine the best way to engage the community in a process. The idea was that representatives from planning commission, the Downtown Development Authority, downtown residents, and city council could use the short-lived committee to determine whether it would be best to issue an RFP (request for proposal) or an RFQ.

Higgins moved to postpone the decision until the council’s July 1, 2009 meeting, saying that she wanted to have more dialogue about what other things they’d like to see. She said she’d like to have the resolutions reflect a “council view” instead of a “councilmember’s view.” Smith asked Higgins for a better idea of the process that they could expect over the next two weeks. Higgins offered only that she just wanted to have some more dialogue.

Hieftje said to Smith that to him it sounded like Higgins wanted to have coffee with Smith. Councilmember Margie Teall (Ward 4) alluded to her work on the Downtown Development Authority partnerships committee, which had made an offer help with community dialogue on the parcel’s development.

Outcome: The resolution was postponed, with dissent from Smith.

Development – Design Guidelines

Council considered a professional services agreement with Winter & Company for the Ann Arbor Discovering Downtown design guidelines revision project in the amount of $34,230. Higgins reported that the A2D2 steering committee had had a phone call with Bruce Race, the consultant who is helping with work on the design guidelines. She indicated that there would likely be a joint September working session with city council and planning commission to address the design guidelines project. That project is part of the zoning and planning effort, and is seen by many in the community as crucial to its success.

Outcome: The resolution was passed unanimously.

Parking Meters

Parking Meters: Public Commentary

Several people spoke during public commentary reserved time (at the start of the council meeting) on the topic of the installation of parking meters in residential neighborhoods near downtown Ann Arbor. The meters were proposed as a part of the FY 2010 budget that the city council recently adopted. City officials hope the meters will generate an additional $380,000 per year in revenue. The meters in question should not be confused with the E-Park stations currently being rolled out by the DDA inside the downtown area.

Gwen Nystuen: Speaking for the North Burns Park Association Advisory Board, she said that they supported the resolution to place only a limited number of parking meters in specific areas. She said that the board objected to the fact that there had been no public hearing on the proposal to introduce parking meters into residential neighborhoods near downtown. She noted that the Burns Park Association had had residential parking permits for over three years now, and it had improved the ambiance of the neighborhood. The introduction of such permits, she said, made the neighborhood more pleasant to be in – it was nice not to be a part of the parking lot. She said they didn’t support any kind of parking meters – not 21st-century, not streamlined, not blue, not gold, not digital parking meters.

John Hilton: Hilton spoke representing the North Central Property Owners Association. He reflected on the fact that 25 years ago city council had come up with the idea of a residential parking permit system in response to a situation in his neighborhood. He expressed his thanks to Sandi Smith, who had worked hard on the resolutions.

Bob Snyder: Snyder spoke representing the South University Neighborhood Association. Snyder said that he was speaking against the introduction of parking meters in residential neighborhoods and hoped to derail further attempts to install such meters. He asked to see a map of the precise locations of the proposed meters. Snyder criticized the proposed introduction of parking meters into residential neighborhoods as having the sole purpose of generating an extra $380,000 of revenue. He noted that eight different neighborhood associations are against “planting” parking meters in residential neighborhoods. The next step, he said, is to fast-track residential parking permits in those areas that do not currently have them.

Ann Schriber: Ann Schriber spoke representing the Oxbridge Neighborhood Association, consisting of 150 households. She summarized the meetings that the neighborhood association had had, and reported that the Oxbridge Neighborhood Association strongly opposes the addition of such parking meters. They want to be informed in advance of such proposals, she said. She concluded that residential parking permit programs work and they don’t want to see them changed.

Parking Meters: Deliberations on 415 W. Washington

How are parking rates at 415 W. Washington related to the installation of parking meters elsewhere?

If parking meters were not to be installed in all the areas planned by city staff as a part of the FY 2010 budget plan, then the revenue shortfall needs to be addressed. And part of the strategy for addressing that shortfall is – in cooperation with the Downtown Development Authority – to raise the parking rates on the surface lot.

Smith introduced a resolution to approve the extension of the temporary use of the 415 W. Washington parking lot as a parking lot. She noted that when the fees were set up in that parking lot, they were not set at a market rate. Her resolution raised the monthly fee from $40 to $80 a month. Smith noted that this was still quite competitive with the surface lot at First & William, which charges $105 a month. Part of the rationale for extending the use of the parcel as a surface parking lot is that redevelopment of the parcel at 415 W. Washington is not going as fast as previously hoped. At the July 1 meeting of the Downtown Development Authority, the board will be asked to approve their side agreement, Smith said. In broad summary, the increase in revenue from the higher rates would go to the city instead of the DDA. [Smith also serves on the DDA board].

Briere noted that on May 18 the idea of installing parking meters in neighborhoods near downtown was not something that council had really been prepared to deal with. She commended Smith for trying to solve the problem very creatively and in a very rapid way. Briere noted that the work is not finished and that it was really a stopgap that didn’t solve the problem permanently. Briere noted that it had been Smith plus herself and the two council representatives from the Fifth Ward, Carsten Hohnke and Mike Anglin, who had worked together on the resolution.

Hohnke said that although he had concerns that introducing parking meters were inherently a sign of commercial activity, he felt it was a necessary revenue solution in an extremely tight budget year. The resolutions, he said, are limited in timeframe. We’re not leaving a potential gap, he said, because the default plan remains for parking meters to be installed if no alternative revenues can be found. [See moratorium below.] He pointed out that it would be important to monitor what happens on Washington Street as the prices on the 415 W. Washington lot were brought into alignment with other parking in the DDA system. He said it might be possible that as prices are raised, motorists would seek more economical free parking out on the street, which could add to the traffic challenges around the new YMCA, located at 400 W. Washington.

Anglin noted that Ward 5 and Ward 1 representatives had worked together on the problem and had had some community meetings on the issue. He noted that it dismayed him a bit that downtown neighborhoods might have such meters installed. Councilmember Leigh Greden (Ward 3) thanked Smith for her hard work. He said that a key point about the plan was that this particular parking lot was never included in the parking agreement with the DDA, and they had never gotten around to closing a loophole. It was not a final solution, he allowed, but it was a step forward to finding a solution.

Outcome: The resolution passed unanimously.

Parking Meters: Deliberations on Installation

Council also contemplated a resolution to begin the installation of some of the parking meters. Smith explained that the spaces along Depot Street were selected in part due to the possible east-west commuter rail that might be developed.

• East Madison (18 spaces)
• Depot Street west of Broadway (16 spaces)
• Depot Street in front of Gandy Dancer (5 spaces)
• Depot Street Lot (20 spaces)
• Wall Street (115 spaces)
• Broadway (4 spaces)

The plan applies a moratorium to all the proposed meter installations except those listed above, but the moratorium ends on Oct. 5, 2009. The upshot of the plan is that by Oct. 5, which is a council meeting date, there would need to be an alternative plan in place to replace any shortfall against the $380,000 in the budget.

Rapundalo suggested that Upland – in the commercial district on the east side of the street – is an area with free parking that would be a good place to think about introducing parking meters.

Outcome: The resolution passed unanimously.

DDA and City of Ann Arbor Parking Agreement

In his communications to council, Hieftje appointed councilmembers Teall, Greden, and Hohnke to work with the “mutually beneficial committee” of the Downtown Development Authority to talk about the parking agreement between the DDA and the city. The appointment of the council subcommittee came subsequent to the challenge from DDA board chair, Jennifer S. Hall, at the DDA board’s last meeting, for council to finally seat its own committee, in light of the fact that she had removed herself from the DDA’s committee – her presence on the DDA’s subcommittee had been cited by the mayor as an obstacle to the city council’s appointment of its own committee.

Related to that upcoming discussion of the parking agreement is an email sent on Sept. 22, 2008, from Keith Orr, who was subsequently appointed by Hieftje to the DDA board to replace Dave Devarti. The email was included in a preliminary batch of records provided to The Chronicle under a FOIA request.

In basic summary, the email is apparently a reply to a verbally conveyed question from Hieftje to Orr about whether he’d be willing to commit to a revision to the parking agreement between the city and the DDA in the context of a possible appointment to the DDA board. Orr wrote:

As far as funding issues we talked about, I certainly believe that city solvency is a critical issue … And I have a general understanding (as much as can be understood from A2 News, and other secondary sources), of the funding issue as it relates to parking issues. I am uncomfortable making a firm commitment to a vote on an issue of several million dollars/year without knowing the full context of the budget issues. I guess that is as close as I can come to making an absolute statement of how I feel on the issue. If those are acceptable parameters, I’ll be happy to fill out the application. If you need a more absolute commitment, I understand, and hope you understand my reluctance to commit beyond that statement.

Contacted via email by The Chronicle, Orr confirmed the basic summary of the message’s context, and added:

… my response remains the same. I am sympathetic to the city’s fiscal needs, and could not promise a particular vote. That was apparently acceptable since I did get appointed.

I remain committed to helping the city. Indeed, the budget passed by the DDA Board contains a line item of “Contingency – $2M”. Thus, the entire board is committed to some type of transfer of funds to the city. The vehicle for that transfer is up in the air. Fortunately the city has finally appointed folks to the “mutually beneficial” committee so talks can finally begin. … I am convinced that reasonable policy determined by intelligent folks will prevail.

The Chronicle has also learned that Newcombe Clark is expected to be appointed to the DDA board as a replacement for Rene Greff when her term expires next month.

LDFA and SPARK

Local Development Finance Authority Budget Amendment

City council considered a resolution to amend the SmartZone of the LDFA budget to increase the total by $25,000. Stephen Rapundalo, who is the city council representative to the LDFA board, explained that there had been a question about a line item in the previous budget providing funds to a private investor network to support the connection of investors with companies in need of venture capital.

Rapundalo reported that the city attorney’s office had done due diligence on the proposal and that it was clear from the state enabling legislation, together with the tax increment financing plan, that money from the LDFA cannot be used for third-party staffing. However, said Rapundalo, the necessity to connect investors with companies who need capital is a legitimate need. That’s why the dollars were reinstated to the budget – in order to realize the same goals but with a different means. How? Instead of allocating money to a private angel investment group, Ann Arbor SPARK should develop a program to connect angel investors with companies.

LDFA Budget Reaffirmation

An additional resolution was added at the council table to reaffirm the 2010 LDFA budget. Rapundalo explained that there had been a leftover question about where and how marketing dollars could be spent. He said that it was clear that marketing dollars could not be used outside of the jurisdiction and the TIF (tax increment financing) plan makes it clear that marketing dollars are to be spent within the jurisdiction.

Ann Arbor SPARK

Council considered a resolution to approve a contract with Ann Arbor SPARK for business support services in the amount of $75,000. As the “whereas” clauses in the resolution indicate, Ann Arbor SPARK is the entity that resulted from the merger of Washtenaw Development Council and SPARK. Historically the city of Ann Arbor had contributed $50,000 to the Washtenaw Development Council. Ann Arbor SPARK is funded partly through tax capture in a SmartZone, which geographically consists of the union of Ann Arbor and Ypsilanti Downtown Development Authority districts. In the next year, Ann Arbor SPARK will receive around $1 million in Ann Arbor property taxes, administered through the LDFA.

Deliberations by the Ann Arbor city council began with Higgins’ expression of support for the contract approval, saying that SPARK would leverage it well for the city of Ann Arbor. Hieftje added that when he was outside of Ann Arbor talking to people who have heard about Ann Arbor SPARK, they say they would like to have one too. He said he was sure it would make good use of these funds. Hohnke, who was recently appointed to the SPARK executive committee, did not offer any commentary at the table. Councilmembers had no questions for Michael Finney, CEO of SPARK, who had remained in attendance at the meeting up through the recess just before SPARK’s contract was considered.

Transportation

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Transportation: Non-motorized Safety Outreach

Council considered a resolution to support a nonmotorized safety education outreach campaign. It had been introduced at the previous council meeting by Eli Cooper, the city’s transportation program manager.

The resolution did not allocate new funds, but provided guidance to staff on how to spend those funds – up to $10,000 for development and implementation of a non-motorized safety education outreach program. The money comes from the alternative transportation fund created from Act 51 funds directed to development of a safe system of on-road bicycle lanes.

The campaign itself, which has already been developed, will include brochures, radio spots, and video spots. Higgins noted that there had been an ongoing discussion about how to accomplish the educational component. She noted that deputy chief of police Greg O’Dell had previously worked with bicycling groups on the topic. She wanted to know if the city had ever heard back about how that worked. Hieftje noted that the previous effort had never actually been funded. He cited the statistic that at any given time, the majority of people on the road in Ann Arbor don’t actually live here. So the outreach campaign had a certain challenge in reaching the population. Signage would be key, he said. Higgins stressed that she felt it was important that education be provided for cyclists about their responsibility for using the road.

Hohnke asked Cooper to explain how the various constituencies would be engaged through the campaign. Cooper cited the slogans themselves as reflective of targeting all users of the roadway, not just motorists: “Share the road” and “Same road same rules.” He described the brochure that had been developed as a tri-fold that when opened displayed a motorist on the left and a cyclist on the right.

Transportation: North-South Connector Feasibility

City council approved its $80,000 contribution to a north-south connector feasibility study. As transportation program manager Eli Cooper explained, the feasibility study would determine whether the Plymouth Road and State Street corridors could be enhanced as a “signature corridor” in terms of the transportation master plan update, using either existing buses, bus rapid transit, or streetcar systems.

Funding from the city of Ann Arbor apparently completed the funding authorization among the four partners in the feasibility study. Already authorized were the contributions from the DDA, AATA, and the University of Michigan. [However, at the AATA's Wednesday, June 17, 2009 board meeting, the board balked at the $320,000 portion it was asked to pay, postponing that final decision until August – the AATA board does not meet in the month of July.]

Outcome: The resolution authorizing $80,000 for the north-south connector study was passed unanimously.

Transportation: Pedestrian Safety Improvement Project

Briere indicated that she would be glad to see the countdown pedestrian walk signals installed in a few areas outside the downtown and suggested that people would come to appreciated them.

She was referring to countdown pedestrian signals at 12 locations and various crosswalk signing and pavement marking improvements encompassed by the project. The project will also include three pedestrian refuge islands to be constructed on South Main at Oakbrook, Packard at Woodmanor and Ellsworth.

The estimated cost of the project is $244,100, with $195,300 coming from a federal grant and $48,800 from the city. Construction is scheduled to begin in June 2009 and continue until September 2009.

Higgins expressed reservations about one of the pedestrian refuge islands.

Outcome: The resolution passed unanimously.

Transportation: Bike Path

Council entertained a resolution to approve an amendment to the professional services agreement with Midwestern Consulting in the amount of $111,870 for a nonmotorized path along Washington Washtenaw Avenue, from Tuomy Road to Glenwood Road. The money would cover design. The city has been approved for a MDOT (Michigan Department of Transportation) Transportation Enhancement Grant of up to $538,527, plus an MDOT Surface Transportation Program grant of up to $460,000 for the construction of this project.

Outcome: The resolution passed with no discussion by the council.

Street Closings

Street closings on the agenda generated a bit of unexpected “controversy.” The Main Street Area Association had requested an East Washington Street closing for Oktoberfest on September 18-22, 2009. For the same days, a resolution to approve a West Washington Street closing was on the agenda, requested by Grizzly Peak Brewing Company and Blue Tractor. Rapundalo voted against both street closings, saying that it was a University of Michigan home football weekend and that safety services had not yet signed off on the idea.

For the street closing requested by Grizzly Peak and Blue Tractor, Taylor asked his colleagues to consider voting to require his recusal in light of the fact that his law firm does work for the parties involved. Apparently realizing that the same potential conflict of interest applied to himself with respect to a previous agenda item, Greden asked for a previously approved item to be reconsidered. That item involved a resolution to approve the temporary outdoor sales, service and consumption of alcoholic beverages during the 2009 Ann Arbor Art Fairs. Greden said that his law firm did work for the Red Hawk Bar and Grill, which was one of the parties that could potentially benefit from the outdoor sales.

In both cases, councilmembers asked for their recusal, and both measures passed. At issue was the potential for enhanced profits on the part of the parties benefiting from the resolutions passed.

Fire Dispatch

Council considered a resolution to approve a contract with Huron Valley Ambulance for two years for a fire dispatching service [ $99,420 FY 2010 and  $109,620 in FY 2011].

A representative from the fire department explained that the contract would provide that HVA handle dispatching for the city’s fire department. HVA already handles the dispatch for several other fire departments in the area, which would make it easier for the city of Ann Arbor to undertake mutual aid agreements with those departments. The new system would also reduce the use of fire trucks on medical emergency calls not involving fires, which would reduce the wear and tear on those trucks.

Outcome: The contract was approved unanimously.

Department of Justice Allocation

Jim Mogensen: During the public hearing on a Department of Justice grant, Mogensen noted that every year the Department of Justice appropriates grants. He encouraged councilmembers to ask the question, “So what strings are attached?” He observed that last year’s grants were used to purchase bicycles and shotguns. This year he said, it’s digital video recorders to be installed in patrol cars with the provision of up to 30-50 terabytes of storage. The grant also provided for mobile license plate readers, he said, at a cost of $20,000 apiece. He suggested reflection on the probability that all of this information would be collected, including face recognition software together with the driver license photos, so that one could imagine a protest taking place at the Federal Building and being able to identify people participating in the protest.

The Department of Justice grant was for  law enforcement policing equipment and technology for Ann Arbor police department’s Patrol Division. The $168,158 grant award requires no matching funds.

Senior Center Task Force

A resolution to establish a Senior Center Task Force was postponed, with councilmember Teall explaining that not all of the proposed task force members had been contacted. Higgins elicited the clarification from Teall that the appointment would be made by council as opposed to by the mayor.

Miscellaneous

Councilmember Taylor will be appointed to the Council Rules Committee, which was consistent with councilmember Briere’s report from the previous night’s caucus that some councilmembers are interested in exploring revisions to council rules to address, among other things, protocols for sending electronic mail.

Public Comment

Jim Mogensen: Mogensen spoke to councilmembers on the issue of electronic communications. He recalled an occasion on which the planning commission was conducting a work session and he was the only person in the audience. The planning commission had on that occasion received a presentation from an attorney in the city attorney’s office, and he said that they seemed to forget that he was still there in the room. He said that he learned all kinds of interesting things about ways people could use to get around the Freedom of Information Act. He suggested that some standards be put in place to address how electronic communications are used. He noted that physically there are rules about how documents can be submitted and when they can be submitted, and that  standards needed to be developed for electronic documents as well. One of the ways that was discussed for getting around FOIA with the idea of using the email address of an employer if that employer was a law firm. The law firm’s email address, he said, was thought to convey the idea that its communication was protected from FOIA due to attorney-client privilege.

Phelps Connell: Phelps introduced himself as a resident who lived adjacent to the Ann Arbor Municipal Airport. He said that when they had bought their house he had been assured that the airport would not be expanded. He allowed that he enjoyed living next to the airport and that it was fun to watch. As an example, he cited the Goodyear blimp, which had been moored at the airport this past weekend, as well as the occasional B-17 bomber. He said that safety is the stated reason for needing the runway extension, but noted that the Ann Arbor Municipal Airport is one of the safest airports. An expansion of the runway, he said, would mean that larger, faster and heavier airplanes would be using it and would put those aircraft 950 feet closer to homes in the area.

Henry Herskovitz: Herskovitz brought with him a photograph of himself taken with Bassem Abu Rahmah four years ago in the city of Bi’lin in Palestine. He said that every Friday they would go in protest near the Israeli wall that goes through Bi’lin. He reported that rubber bullets, tear gas, and sound grenades had been shot at them. Herskovitz said he was saddened to report that two months ago his friend had been hit in the chest with a tear gas canister and killed. He noted that the teargas canister had been paid for by “me and you,” which is to say U.S. taxpayers. Herskovitz stated that he did not care about the emails that councilmembers sent back and forth while speakers were addressing the city council. What he cared about, he said, was the abdication of a previous city council’s responsibility to uphold the U.S. Constitution five and a half years ago, when it had condemned the demonstrations held weekly outside of Temple Beth Israel in Ann Arbor. He called on the current city council to rescind the resolution passed in 2004 that had condemned the demonstrations.

Ed Fontanive: During public commentary reserve time, Fontanive spoke in favor of zoning East Huron Street as a D2 area instead of a D1 area. He noted that across the street are two old churches and a behind the area lay the Old Fourth Ward. He said that a 60-foot-tall building could be built under D2 zoning, which would help it blend better with the rest of downtown.

John Floyd: Floyd noted that last summer, the day after the primary election, Hieftje had been quoted in the Ann Arbor News as being pleased that the candidates had the same “shared high-level vision” for the future of Ann Arbor. Floyd asked what that vision was. He noted that the occasion of consideration of a Downtown Plan as council was undertaking that evening meant that it was an appropriate time to find out what the shared high-level vision was. [Rummaging through the Ann Arbor News archives of the Ann Arbor District Library turned up the quote from Hieftje that Floyd likely meant, in an Aug. 6, 2008 article by Tom Gantert: "We have elected five council members with a big-picture vision of the future of Ann Arbor. They have the ability to work together to see it through."]

Thomas Partridge: Partridge noted the continued need to address the serious issue of discrimination in Ann Arbor, in Washtenaw County, in southeast Michigan, the entire state, and in fact the whole nation. He called on all elected bodies to address this problem with respect to housing, public transportation, healthcare, and education.

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

Absent: none.

Next Council Meeting: Monday, July 6, 2009 at 7 p.m. in council chambers, 2nd floor of the Guy C. Larcom, Jr. Municipal Building, 100 N. Fifth Ave. [confirm date]