Sustaining Ann Arbor

Posted July 31, 2022 by Vivienne Armentrout
Categories: politics, Sustainability

Our failures with city neighborhoods, are, ultimately, failures in localized self-government. And our successes are successes with localized self-government. – Jane Jacobs, The Death and Life of Great American Cities

Ann Arbor – Our Home Town

So here we are again, at the brim of an election for Ann Arbor City Council and Mayor. These elections are of much more consequence than they were for most of the time I have lived here, because terms are now four years instead of two, so we have to live with our mistakes much longer. The vote is one of the most important responsibilities we have as citizens.

Sustainability

What do we hope to achieve with our vote for Council and Mayor? Ultimately, we seek to have representatives who will sustain us and present us with a livable community in which to thrive and prosper.  What does it mean to be sustained? That the environment which surrounds us provides us with what we need. “Sustainability” as a concept encompasses economic, environmental and social inputs. Our needs are complex, as is our relationship to our community. There are multiple balances to be achieved. But if our circumstances are not sustainable, we will actually fail. So to be sustained simply means having the supports necessary to continued positive existence so that we and the community as a whole will thrive.

Much of what is being called “sustainable” today actually represents a different concept, that of sustainable development. That refers to more efficiency, with an effort to avoid depletion of vital resources. Also, “sustainable” has become conflated with environmentally sensitive practice or conservation; for example, putting solar cells on one’s roof or using a bicycle for most trips is often termed “sustainable”. But ultimately, a sustainable system is a complex entity requiring multiple inputs for success. That is what we hope for from our community.

Necessities

What should we expect from our elected representatives? Most of all, we want them to care about us. We don’t want them to be so focused on future plans that they ignore our concerns, whether petty or major. After all, they are our access to local government and to much of our daily lives.

We especially appreciate responsiveness, so that our questions are answered and our concerns are recognized. This does not mean that every wish can be satisfied. The official needs to have a sufficiently broad understanding to make decisions based on their own judgment. But a certain level of municipal service is to be expected, especially if it is a service that the city promises to deliver. This will involve some simple housekeeping (for example, is refuse picked up reliably?) and some overall policy decisions (for example, will we have a service to pick up large items?).

They have to do the “heavy lifting” on our behalf, so there is a need for expertise in a number of technical, legal and administrative areas. They also need to understand finances and be able to judge priorities both from the viewpoint of residents and local businesses and of the city itself.

Our representative will need to have a certain broad vision for the future direction of the city. That might include decisions on whether a certain service will be expanded or eliminated, and, critically, decisions on how the built environment will be treated. Decisions might be needed to address a perceived societal goal, or an anticipated physical or financial challenge. These decisions should not be made only in a “top-down” process, where the electeds and administrators simply tell the populace how it’s going to be. But they also can’t be done in only a “bottom-up” fashion by referendum. The key is meaningful public participation in big decisions.

Critical choices

As indicated in our previous post, there are only a few competitive races for Council. Wards Four and Five have incumbents (Elizabeth Nelson and Ali Ramlawi) (whom we have endorsed) and there is an open seat in the First Ward. We have endorsed Angeline Smith for that seat. Even if all three win election, this will constitute only a minority viewpoint against the Taylor machine. But that is very important. If we are to have good governance and any level of responsiveness to citizen concerns, we need to have a debate about critical decisions and having minority voices will be constructive.

The major race to watch is, of course, the contest for the Mayor. Anne Bannister, whom we have endorsed, appears to have an almost impossible task in opposing Christopher Taylor, whose longevity in office, general influence (his endorsement listing is impressive), and heavy cash advantage would seem insurmountable. But one thing we have learned over the past few years is that predicting the future has gotten tough. We could make a long list of world and national events that no one expected, and there are plenty of local factors to consider too. So while Bannister’s chances might seem slim, every vote still counts and we might be surprised. For one thing, there are starting to be murmurs on social media indicating that Taylor’s popularity is not universal and that there is dissatisfaction with the way events and conditions are developing in Ann Arbor. This letter has gotten fairly wide circulation. Kim Winick is a longtime Burns Park resident and he circulated it as an open letter to members of his neighborhood association. (Reproduced here with permission.) Burns Park is possibly Ann Arbor’s most politically influential neighborhood and is the home of Mayor Christopher Taylor and a long succession of Third Ward Council Members. So it is significant that this letter’s thesis is: the City is not headed in the right direction under the current Mayor, Christopher Taylor, and his supporters on City Council. As befits a dense essay from a retired UM professor, this one includes three pages of text and a page of citations (we did not include those, and the original letter was edited slightly for typographical errors). Here are some significant excerpts.

Christopher Taylor is a strong advocate of zoning changes to promote growth and development in Ann Arbor regardless of potential downsides, while Anne Bannister supports a more cautious approach…One of the principal arguments the disrupter/strivers make in support of up-zoning is that such a policy will make Ann Arbor more affordable. In my opinion, however, up-zoning to fuel housing growth is unlikely to suppress the cost of housing. Thus if the goal of up-zoning is to make housing more affordable it Is very unlikely to achieve this laudable goal. The surge in housing prices, which is a nationwide problem, is due to a multiple of factors and not simply zoning. These factors include great increases in building costs (excluding land costs), substantial increases in wealth inequality, federal government stimulus, fear-of-missing-out and the significant rise in two-person, high-income earning families, who are able to pay higher housing prices. People want to live in Ann Arbor because the town has a highly educated population, good public schools, a vibrant downtown, significant entertainment options, etc., many of which are due to the presence of the University of Michigan. History has shown that significant up-zoning is likely to make Ann Arbor more crowded, with both people and cars, and diminish the town’s features, both architectural and natural, and increasingly make it feel more urban and gentrified, while not lowering housing costs…

I disagree with the extremely pro-growth policy of the City Council majority, led by Christopher Taylor, but I also see that City government is not serving us well in many other respects.

The third page of the letter consists of 9 points, beginning, of course, with the condition of the roads, but ranging over a number of basic services and the dysfunction of Council. Most relevant to the point here is this comment:

New construction is often super-dense, super-expensive, in some cases architecturally unattractive, and provides little to nothing in terms of affordable housing. In some cases, these properties have been up-zoned to permit such construction. Furthermore, these properties often do not provide an environment that makes people want to congregate, socially engage and/or shop in the area. Contrast some of these projects to the splendid area of Kerrytown, which is a model of urban planning.

Development

As we have noted perhaps too many times (see Disruption in Ann Arbor: It’s a Promise), the heavy emphasis on dense development (“densification”) has been a consistent feature of Taylor’s tenure, both as a Council Member and as Mayor. This has accelerated in recent years, as summarized in this overview from MLive. While some developments follow the guidelines in the Comprehensive Plan, others have required special allowances and modified site plans.

Rendering of the 19-story building to be built behind the Michigan Theater, next to the old Liberty Square parking structure on the right

The culture of Ann Arbor has not always been so accepting of dense, tall development. As I described in an early article (2005) published in the Ann Arbor Observer, the fate of development downtown was intensely debated. But by 2010, the rezoning of downtown Ann Arbor was completely accomplished, via a process called Ann Arbor Discovering Downtown (A2D2). Since then, and especially when Christopher Taylor had a majority of his supporters on Council, downtown has been growing taller and taller. This was facilitated by generous height premiums for residential buildings. Perhaps the ultimate example is the building now underway behind the Michigan Theater. It will be 19 stories, according to the Ann Arbor News the tallest building in 50 years But as pointed out in the Ann Arbor Observer, with changes in the height premiums offered to require more affordable units, this era may be coming to an end. Still, the look and feel of our city has unalterably changed, as was well described in this article: Ann Arbor’s Small-town look fading as Downtown Reaches for the Sky.

Not all of downtown is available for this push to the sky. With Main Street and State Street historic districts, some of the precious land will stay at human scale for the time being. More recently, the effort has been to grow “downtowns” elsewhere by the simple expedient of rezoning parts of the city to accept less onerous height and density restrictions. The development site formerly known as Broadway Village was zoned as a PUD over a decade ago, but rezoned at the request of the current owner to C1(A/R), in a vote much criticized by Lowertown neighbors. As described in this review by the Ann Arbor News, till now this has been the most flexible or generous zoning classification. But the new TC-1 zoning, recently applied to the area around Briarwood, offers “downtown-style development” away from downtown.

This rush to development has been justified by the premise that more residential development (increase in housing units) of any kind will make housing more affordable in Ann Arbor. As Taylor was quoted in the discussion about TC-1 zoning,

“I’m very excited about this step we’re taking today…Supply and demand is not a joke, it’s the law, and what we are doing is we are enabling the market to create substantially more — thousands perhaps more — units of housing in the city of Ann Arbor to house future neighbors.”

While in the past, more permissive zoning like that granted in PUDs or the more recent affordable housing premiums for downtown have been tied to developer concessions and donations of “community benefits” like affordable housing funding and parks support, the tide has turned against any impediment to development. In the TC-1 discussion, some CM lamented the lack of requirements for a move toward carbon neutrality in accordance with the A2Zero plan approved by Council. But the no-benefits coalition won the day.

“Council has heard many people call for making developers propose fully electric buildings or include affordable housing in order to get approval for taller buildings, but requiring that could make projects more difficult and more expensive, (CM Lisa) Disch said, expressing concerns it could disincentive development.”

Growth

Cui bono?

So who benefits from all this development and the resulting growth? Obviously, the developers, who do this work to make a profit. Property owners make a sale, realtors and agents collect fees, many workers in construction trades, suppliers of building materials, construction managers, architects, survey companies find work. Taxing authorities acquire a higher tax base. And yes, politicians who support these policies are in turn supported by campaign donations. (We are not alleging corruption here. Individuals donate to candidates who support their goals, all open and aboveboard.) Growth of the GDP for a locality in general benefits many who do business in it.

But who benefits from the resulting density? That is a different question. There is a new urban science (beyond “emergent” and now well established) that seeks to define cities as entities that operate within the scientific/mathematical concept of complexity. One of the foremost practioners is Luis M.A. Bettencourt, author of the definitive textbook Introduction to Urban Science; Evidence and Theory of Cities as Complex Systems. For years, he and his colleagues have been conducting empirical work, collecting data of many types from cities globally, and constructing models and mathematical representations that reveal the many similarities in how cities are organized and grow. And when we say “grow”, we mean as an organism grows. This is a feature of complex systems. Bettencourt’s introduction says:

This emphasis on the connections between many different aspects of cities —  their built space and land uses, their infrastructure and services, their social life and its outcomes — is the business of complex systems as a relatively new field of scientific inquiry…The integration of ideas and concepts from many disciplines also forces each piece to shift and change as it is constrained and enabled by others into new frameworks.

Some of the key qualities that define cities in this science (and it requires a book to explain them) are property of scaling, presence of networks, energy flows, diversity and neighborhoods. Social aspects are very important in whether a city will be a success (in the sense of serving its populations and attaining longevity).  Michael Batty, whose recent book, Inventing Future Cities, is a philosophical but cogent overview of the science, quotes an earlier author, Lewis Mumford (What is a City).

The city in its complete sense, then, is a geographic plexus, and economic organization, an institutional process, a theater of social action, and an aesthetic symbol of collective unity. The city fosters art and is art; the city creates the theater and is the theater.

So the takeaway is that the city is about its people and their interactions. The more dense the city, the greater frequency of interactions. There are numerous studies showing linear relationships between population and many other outcomes. For some activities, the relation is superlinear (increases more rapidly than merely proportionately). There are hundreds of datasets recorded by numerous authors mapping these relationships. Here is one (Source: Yang et al., Phys. Rev. E 100, 032306). Several relationships are superlinear but one is merely linear.

Because the number of interactions increases with the population, there are numerous outcomes, both positive and negative. We are all familiar with the congestion that comes with increased population density. More people means more cars on the road, more crowds on sidewalks, less room in public facilities. It also means more demands on public resources such as water utilities. But more people also means more business interactions, better availability of some services (transit, for example). Of special interest to the technology culture is the result of intense collaboration (note the increase in patents submitted in the figure).

The question of the impact of density has been studied by many, using historical examples and also collecting contemporary data. Here is a simplified diagram illustrating an overview.

Note that net social benefit increases linearly with density of social interactions until an optimum is reached, then benefit declines until system becomes unstable.

The conclusion from this could be simply stated that growth is beneficial to success of the city, but only to a certain point, and after that is deleterious. How could we predict what this point is for Ann Arbor? There must be metrics that could be considered.

Outcomes

Ann Arbor’s discussion of the current rapid moves in unzoning much of the City has been severely limited, especially as to prediction of likely outcomes. Planning is supposed to indicate the direction that policies we put in place will take us. There is supposed to be some sort of consensus within the community about the outcomes. Typically a comprehensive plan begins with a “vision statement” that serves as a grounding for actions within the plan. Actual implementation is supposed to reflect those outcomes and mechanisms should be in place to achieve them. Here is the vision statement for our last comprehensive plan (n.b., the actual document is called a “Master Plan”, but some members of our community find that to be offensive, so most plans are now referred to as a “Comprehensive Plan” instead. It still means that the Plan is supposed to serve as a template for planning).


“The City of Ann Arbor will be a dynamic community, providing a safe and healthy place to live, work and recreate. It will be a place where planning decisions are based, in part, on the interconnectedness of natural, transportation and land use systems. Natural systems, including air and water, natural features, native flora and wildlife habitats, will be improved and protected. It will be a place where the Huron River is a cherished part of the community and a focal point for recreation. Downtown will continue to be a vibrant part of the community that ties all parts of the city together. Transportation systems will include enhanced opportunities for public transit, extensive opportunities for alternative modes of travel and improved management techniques to reduce the impact of traffic on existing streets and neighborhoods. Land use systems will be compatible and complementary, and will include residential, recreational, commercial, office, educational, institutional and industrial uses, which will provide extensive choices in housing (including low cost housing), shopping, employment and recreational activities. Historically significant buildings and neighborhoods will be preserved. The quality of life in Ann Arbor will be characterized by its diversity, beauty, vibrancy and livability and ultimately will depend upon the positive interaction of these systems.”

It sometimes seems that our only “vision” now is to utilize every square inch possible for residential development, achieving density both by increasing the building envelope footprint (reduction of setbacks) and increased height, and definitely by increasing the number of units per acre. Single-family zoning is under attack, and now (with the TC-1 zoning proposal for W. Stadium) one of our principal commercial service areas is under threat of being directed into a monoculture of tall residential buildings with no real commercial presence. There have been vigorous protests from many sectors of the local neighborhoods but it is uncertain how Taylor’s Planning Commission and his solid Council majority will heed those. What is at risk is a major commercial and service area that serves much of the West Side of Ann Arbor. Are those residents to be ignored?

The premise for the current set of transformative policies has not been explained, except in the most simplistic form. To repeat (again and again) that increase in supply of housing units will eventually, inevitably, result in affordable housing. As Taylor said in the statement already quoted here, “Supply and demand is the law”. (Presumably he means a natural law.) But there is ample reason to contest that conclusion (it will have to be in another post). And the notion has been advanced that anyone who wants to live in Ann Arbor should be able to find housing here. But that suggests that Ann Arbor is infinitely expansible. Is it growth for its own sake? To attain some social goal? (Sometimes the suggestion is made that this will advance racial equity, but the mechanism is unclear.) Does Ann Arbor have limits, other than the obvious one of our fixed border? What are the limits of density before the city becomes unlivable or even dysfunctional?

I wondered whether our Planning Department was working from a model that had not been explained. So I asked our Planning Director, Brett Lenart, if there were such a model (I didn’t want to put him in a compromising position, so I copied the email to the City Administrator). Here was his answer.

As for mathematical models for City development, the Economic Equity and Affordability Analysis performed by the County in 2015 modeled the needs of affordable housing units in the City, and other communities. The City’s current Comprehensive planning documents reference densities in some areas specifically, and in other indirect ways, lead toward density when discussing outcomes such as increased transit mode use, which becomes more possible with increased densities, though not always defined in City planning documents as a specific number.

Another strong policy statement and justification for many changes in configuration of the City, including transportation, is the A2Zero plan. A good deal of the City Budget is aimed at fulfilling this plan. And we have also been informed that there will be a request on the November ballot for a 1.0 mill tax to support these aims. Taylor has been clear that this is a major thrust of his. It is hard to argue with climate change.

Kian Goh, in her book Form and Flow, asks, “In the face of climate change and uneven social and spatial urban development, how are contesting visions of urban futures produced and how do they attain power?” She examines three case studies of urban areas facing issues from climate change. They are New York City, Rotterdam, and Jakarta. In each, “insurgent” community groups rose up to challenge institutional solutions. Her thesis, based in “urban ecology”, is that top-down approaches from “hegemonic” powers are being contested by grassroots community groups, and it is clear where her sympathy lies – and it is not with those engaged in “modernist urban planning”.

“…one aspect remains constant among those in power. There is a strong…belief that there are urban development solutions to climate change problems, if done properly…But how can this be the case when it is those same systems of urban development that created, and continue to perpetuate, those problems?”

Really, in the current efforts by Taylor and his supporters to transform not just the form but the complex and diverse social character of Ann Arbor, one is reminded of the 1950s urban renewal wave that forever displaced and marred neighborhoods in the United States (Ann Arbor, miraculously, escaped). The tools they are using include the threat of climate change, but A2Zero, if examined closely, is simply a framework and defense of growth.

Will a grassroots group of current residents continue to have a voice on our City Council? Will our community as a whole thrive or will density undermine our quality of life? Will Ann Arbor retain the complex and engaging character that has charmed so many, or will current neighborhoods be transformed and residents displaced in favor of creating wealth and a new reality?  The election on Tuesday, August 2 will provide some important answers.

UPDATE: Money won the day. The grassroots coalition took solid losses and it looks as though the Taylor machine will have firm control over the City of Ann Arbor. Early reports here.

Ann Arbor Elections – The Season of Poison

Posted July 17, 2022 by Vivienne Armentrout
Categories: politics

Every two years, Ann Arbor has an election of members to its City Council. Councilmembers are now elected to four-year terms, as is the Mayor. Here is the Ann Arbor Observer’s description of the Council races this year.

For the last couple of elections, the results have been momentous. We summarized some of this in the post Disruption, Dysfunction and Dismay (I). Briefly, Mayor Christopher Taylor, who was anticipating great things, had some disastrous losses in 2018. He then won much of it back in 2020, with his handpicked slate of strong candidates (well-supported by donations, including support from the Michigan Talent Agenda/Inspire Michigan PAC), who knocked out incumbents of opposing views (more on that contest in the post Disruption in Ann Arbor: It’s a Promise). The new Council wasted no time in undoing much of what the previous one had done. As we commented recently, our politics has gotten to be very reactive. But it has also gotten seriously nastier and less honest. Much of this can be laid at the feet of the Taylor machine.

Yes – I believe that Taylor has constructed a classic political machine. As Wikipedia says, this is defined as “a party organization, headed by a single boss or small autocratic group, that commands enough votes to maintain political and administrative control of a city, county, or state“. It also notes that the term is often considered pejorative. But I believe that in Taylor’s case, it is simply descriptive.

Christopher Taylor was first elected as Mayor in 2014, strongly supported by the Michigan Talent Agenda/Inspire Michigan). The Michigan Talent Agenda is the educational/marketing entity, supported by a PAC, Inspire Michigan. The overall agenda is described in our post, The Placemaking Agenda and Ann Arbor Politics. Briefly, the concept is to build a vibrant and attractive urban center that will attract “talent”, typically young people skilled in the high-tech industries. Or, as stated in their most recent postcard (July 2022) endorsing three candidates in the upcoming election:

The Michigan Talent Agenda is a statewide platform that seeks to drive public policy outcomes to develop, attract, and retain the highly-talented, highly-educated citizenry that Michigan needs to succeed in today’s knowledge economy. This requires a commitment to building and investing in the sorts of communities that mobile talent values.

Since then, Taylor has been gaining power and influence by accretion. At least two nonprofits that also do some business with the City, the Washtenaw Housing Alliance and the Ecology Center, openly participate in campaign-season activities (remember the Climate Voter signs? And the WHA was similarly involved in the Neighbors for More Neighbors campaign). Taylor has had the power of appointment to boards and commissions for eight years, and that builds up a very strong support base. For several campaign cycles he has received maximum campaign donations from Oxford Properties’ owner and other real estate interests, as well as a University of Michigan regent. Most recently he has begun receiving donations from the Michigan Laborers’ Union (note his endorsement by LiUNA!). And now he is endorsed by multiple officeholders and candidates for state-level offices, including County Commissioners.

All this is giving him real muscle. He has been using it in the last election and this one to recruit and support strong candidates who will be loyal to him. His purpose appears to be that he wishes to preside over a unanimously supportive Council, with no discussion. I believe that if you examine the voting record since the 2020 election, you will find very little dissent from members of his slate. And now it is clear that he is determined to eliminate two of the troublesome incumbents who have been effective in criticizing and questioning his leadership on numerous items. He has put his full support behind Jenn Cornell (running to oppose Ali Ramlawi in the 5th Ward) and Dharma Akmon (running to oppose Elizabeth Nelson, 4th Ward). His treasurer, Joan Lowenstein, is their Treasurer. At one point Taylor called upon his own supporters and volunteers to turn out for a massive field day to support Akmon in the 4th ward. (I have been told that Cornell received the same assistance recently.) And it is evident that the same agency (Blue Path Solutions, according to the Observer) prepared their campaign postcards. That is perhaps unfortunate, because the postcards resemble each other both in their mischaracterizations of certain actions, and also in the graceless effort to smear the characters of both incumbents. (Click on the figure to view larger version.)

Happily, I am not obligated to explain Elizabeth Nelson’s response to these items, because she has done that herself. Read it in her own words. The Difference is Clear 

What jumped out at me was that the very first thing on the list was the silly issue of Jeff Hayner’s clumsiness. As explained in MLive at the time, he fell into a trap of his own making by quoting a paragraph that contained a word that is offensive to LGBTQ people and then defended his right to quote literature while making another quote containing the N-word, to a Black reporter, no less. I have always found Jeff to be troublesome, but I believe along with many others that he was not actually expressing his feelings but simply being stubborn and insisting on his rights. (Nelson is clear in her statement that she rebuked him for this usage.) Regardless, Taylor’s people have found this to be immensely useful, to the point at which acolytes have suggested on social media that a Black candidate (Angeline Smith) was likely a friend of his because they both live in the First Ward and implying that she was racist! Is this really the issue on which the future of the City of Ann Arbor should hang?

And then the second item is Howard Lazarus’ firing. Actually, he resigned after some serious negotiation and I noticed that he has now found a job as County Executive elsewhere. The Taylorites will never stop mourning his passage, but is this a forward-looking issue?

Taylor himself does not engage in the nastiness. He has a flock of acolytes to carry his message of character assassination and mischaracterization of actions throughout social media. (Most of them are the #a2council twitterers I affectionately call the Jackals.)

So why are we constantly being assaulted with nasty implications, insults, and false descriptions of actions by Council? Because they want to change the subject. Taylor has made it clear that he represents a major change of direction and agenda for the City, and many of his agendas are aimed at bringing in a new population and in inciting growth and economic development. Densification, replacement of current homes and businesses, tax increases and other changes of performance by our government do not favor current residents and small businesses. What his slate emphasize in their anodyne statements is “quality service”. Jenn Cornell, for example, extols “clean water, reliable trash and recycling, safe roads and sidewalks, and parks that are maintained and activated”. That is reassuring to hear, but we hope those things were already in place. (Oddly, Taylor’s recent postcard mostly emphasized his gender sensitivity in placing tampons in public restrooms.) We are not discussing the big issues like how to pay for A2Zero, what radical rezoning will likely look like for the future, or how community members can have a full role in determining the City’s future shape.

Endorsements

We are lucky to have brave souls who are still willing to run for office against all this power. Here are my recommendations.

First Ward: Angeline Smith. She is connected with Arrowwood Cooperative, a strong community that preserves affordable housing and democratic ideals. Her sermon at her Zoom meeting on “trickle-down housing” was a treasure. In addition, she has experience with financial matters that will serve us well.  Her opponent Cynthia Harrison seems to be a good person and has a moving life story, but she can be counted on to be one of the Taylor yes votes.

Second Ward: Chris Watson is running unopposed. He will offer a fresh youthful voice.

Third Ward: Ayesha Ghazi Edwin is running unopposed. She has endorsed Taylor and his slate.

Fourth Ward: Elizabeth Nelson. She is an incredibly diligent, intelligent, and thoughtful representative who also has a sense of humor when permitted to exercise it.

Fifth Ward: Ali Ramlawi is thoughtful and brings a valuable perspective as a downtown businessman. He is very fiscally prudent and makes efforts to bring people together, though it has been tough lately.

Mayor: Anne Bannister has taken on a steep hill to climb against an incredibly powerful and well-funded incumbent Mayor, but she is doing a superb job of voicing a vision that is oriented toward the citizens of Ann Arbor rather than toward developing a successful economic engine. She deserves attention and has my thanks and respect.

UPDATE (July 24, 2022): Christopher Taylor’s postcard is similar to those for Akmon and Cornell, with a series of negative but questionable accusations. The political newsletter, Ann Arbor Independent, has an exhaustive discussion of these points.

Section of Christopher Taylor’s campaign postcard with comparisons against Anne Bannister

SECOND UPDATE (July 27, 2022) As reported in the Ann Arbor News, Taylor’s candidates did indeed receive disproportionate cash contributions, approximately twice those of the two incumbents and Angeline Smith. This was exceeded by contributions to Taylor’s own campaign, again reported by the Ann Arbor News.

A Matter of Balance: Ann Arbor’s Loss of Equilibrium

Posted March 3, 2022 by Vivienne Armentrout
Categories: politics

Skaters demonstrating Newton’s Third Law. credit: Wikimedia Commons

Ann Arbor’s politics is getting to be more and more Newtonian. I’m sure that Sir Isaac wasn’t thinking of local politics when he formulated his Third Law. That’s the one that we learned in school as “For every action, there is an equal and opposite reaction“. Most every object in our physical universe is simultaneously being acted upon by forces, and acting on other objects by forces of its own.

We have been getting actions and reactions in our civic discourse that are more and more extreme. Indeed, it has become so prominent that Ryan Stanton, the reporter for MLive, was moved to write about it.  His question:  “why is (Ann Arbor’s) government in such a mess?” In it, Lisa Disch, Councilmember for the First Ward, offers a fair analysis:

The current council is the product of the last several years of elections, during which there have been two shifts in the power balance and some dysfunctional interpersonal dynamics have developed, she said. Combined with disagreements over policy implementation, things can get heated, she said.

The stakes get higher when people feel like they’re fighting a battle for control and not just fighting a battle for policy,” she said. “And I think we’ve seen the effects of kind of a prolonged battle going back and forth for control.

We have been writing about the factions in Ann Arbor politics for some time. The primary election for Council in 2018 was pivotal. As we noted in a later post, Mayor Taylor suffered some serious losses, retaining his own seat but losing almost all the rest of his coalition. On top of that, the effort to sell the Library Lot for a substantial development (Core Spaces) foundered because of a ballot proposition prohibited the sale of the lot and required the retention of the area as a public space. But in 2020, Taylor’s faction came roaring back, with a strong slate of candidates (vigorously promoted by Taylor) who were extremely well funded (receiving more than twice the campaign contributions of the previous incumbents).

All of this has been dizzying. As CM Disch noted, it is about control. The two sides have seriously different agendas and goals for the City of Ann Arbor. But as the battle has continued, the animosities have mounted, and now we are seeing norms violated that at one time we might have expected to be observed. The sheer nastiness, both at the Council table and on social media, would have been shocking at one time but now is commonplace. (I have contributed somewhat by labeling the Taylor followers on Twitter as “jackals”, a label they have happily adopted.) Meanwhile, the recently seated Council seems to be in a rush to undo everything that the previous majority did. Action and reaction. But what this does is to exert more and more force on the system, as more and more drastic decisions and actions are taken.

Possibly one of the most quoted poems in this last decade (and probably the least understood) has been William Butler Yeats’ The Second Coming. Yeats was propounding a theory of history in which “gyres” (spirals) represent cycles of history. He saw a movement into chaos (It was written just post World War I and already there was instability in Germany.) Here is his vision:

Turning and turning in the widening gyre…  
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere   
The ceremony of innocence is drowned;

In other words, events and movements are spinning so fast that reality itself is being transformed. I fear that we are doing something like this. Forces and contrary forces are making it difficult to see a deliberate and orderly development of policy and governance so that those of us “on the ground” are likely to be confused and startled at rapid changes of situation. (Mayor Taylor has indeed promised us this: he has repeatedly predicted “disruption”.) As quoted in the Michigan Daily a couple of years ago:

“All lines of work, all manners of doing things, are open to interrogation. The old way of running an economy, the old way of doing business, the old way of operating civil society is subject to change, subject to reexamination, subject to improvement. As we figure out where we go next, reconstituting as a functioning society with the goal of carbon neutrality will be a part of our recovery.”

Off With His Head

There is perhaps no better example of these rapid, forceful actions than the events that overtook Tom Crawford, our City Administrator until August last year. Tom was our Chief Financial Officer, beginning in 2004. As such, he was in charge of the Budget and, generally, the management of the City finances, reporting to whichever City Administrator was on board at the time.  When the then Administrator, Howard Lazarus, accepted termination in early 2020, Tom became the interim administrator, and then was appointed City Administrator in September 2020. Unfortunately for him, he was appointed by the victors of the 2018 election, who had already been defeated in the August 2020 primary. He was terminated by the new Council less than a year later.

We have speculated (and I do not withdraw this opinion) that he was relieved of his position so that the Mayor and his followers could have control of the Budget without interference. See also Rescuing Ann Arbor’s Budget. Mr. Crawford was long known as a strict constructionist as far as budget discipline goes, and the City had a number of budget shocks because of the COVID economical effects. There were some grim reports through 2020.

But it can’t be discounted that part of the reason to terminate him was that he just wasn’t their guy. And it was clearly payback for firing Howard Lazarus, whose agenda was compatible with Taylor and his friends. Here is a comment published on Twitter by Joan Lowenstein, the doyenne of the Taylor faction (and the Treasurer for many associated candidates).

A Short, Sharp Shock

So after nearly 18 years of service to the City of Ann Arbor as a well-respected and authoritative administrator, Tom Crawford was relieved of his position, in a manner that many of us found to be poorly justified, abrupt, and brutal. The accusation was that he had said racially insensitive things. He denied some of these. The actual quotes had no documentation other than the statements of a very few employees, who were not identified. (See this article and our previous post.) Among other things, the original report by a consultant (Jennifer Salvatore) did not recommend termination, and Crawford himself did not obtain legal support in those initial stages, but instead wrote a memo apologizing for any hurt he had caused and offered to do training and take other steps to ameliorate the situation. As we detailed in the earlier post, a series of emails obtained by FOIA appeared to indicate that the presentation of the accusations was primarily guided by and possibly dictated by the City Attorney and his deputy. At the end, Mr. Crawford was simply shown the door, in such a way that he was also not entitled to any severance pay.

Oddly, a second investigatory report was made public by Council in January 2022, long after Mr. Crawford’s exit. Why was this necessary? Was it to attempt to justify Council’s action after the fact? It definitely came across as a case of “hitting him while he was down”. There was a vigorous objection by Ralph McKee, a retired attorney who has been following this procedure closely. Critique of Salvatore Followup Report Re Tom Crawford is a lightly edited and reformatted version of an email which was sent to Council shortly after the action. McKee presents a detailed analysis of the flaws in the procedure and the report.

That’s Enough

There was enough force behind this violation of norms to evoke a reaction from another member of the community. Bruce Laidlaw, a well-known local attorney, took notice of the behavior of the lawyers who were prominent in this case. Laidlaw was at one time the Ann Arbor City Attorney, has represented the City before the Court of Appeals, and has also served as an attorney for numerous local townships and villages. He has been involved in law at the local government level for over 30 years and is well known and well respected.

It is one thing to dislike actions of elected officials (Council members) who may not understand the law or the culture of the legal profession, but another thing to see established legal professionals who should know better behave outside the proper boundaries. Laidlaw was clearly outraged on a professional level. He undertook a personal mission to study all the details of the Crawford case, and also of a separate report that Salvatore produced in response to the complaint made by Tom Guajardo. As explained by this article in MLive, the former HR director made a formal complaint about the treatment he received from the Assistant Administrator, John Fournier. The Salvatore report exonerated Fournier, who had essentially (and embarrassingly) been accused of similar faults to the ones that brought down Crawford, or worse. From the article:

Fournier, who was acting city administrator at the time, created a hostile work environment, Guajardo alleged, accusing him of harassment, discrimination and illegal directives.

As a result of this report, Fournier was declared exonerated. Again, from the MLive article:

The report is a full and unequivocal exoneration,” Mayor Christopher Taylor said in a statement. “It concludes that Mr. Fournier’s actions were justified, lawful, consistent with policy, and, to be clear, non-discriminatory. Period.”

Laidlaw has done a careful study of these events, beginning with a number of FOIA requests for documents and also for the invoices and time sheets submitted by Salvatore. He has been constructing an account of his findings which he expects to publish online eventually.

In late February 2022 he sent an email addressed to the City Attorney, Stephen Postema, Jennifer Salvatore (the consultant) and Mayor Christopher Taylor, who is also an attorney and partner at Hooper Hathaway. (It is copied to Council; reproduced here with Mr. Laidlaw’s permission.)

In the email, he compared the actions of these attorneys to those who supported the Joseph McCarthy hearings in the 1950s. Those of us who actually remember that time understand that it was the classic example of character assassination for political grandstanding purposes.

Here is the major part of the text of Mr. Laidlaw’s message.

With the help of persons unknown, you managed to compile a list of arguably insensitive comments by Tom Crawford. That was used as an excuse to fire him. He signed a termination agreement that didn’t even provide the severance payment to which he was entitled. But you had to further assassinate him.

Having ruined Crawford’s professional career, you contrived a new report accusing Crawford of illegal employment discrimination. I have searched City records and watched City Council videos, but have found no excuse for that report. I didn’t find who authorized spending $8,000 to prepare it. I can’t think of any public purpose for creating it. It appears to have been a Joe McCarthy type of attempt to ruin the reputation of a dedicated public official.

But he is not stopping at a simple complaint. These actions have brought forth a reaction.

As a member of the State Bar, I feel I have a duty to report highly unprofessional conduct by attorneys. The efforts of the three of you to attack the reputation of Tom Crawford were unprofessional. If you cannot rationally explain those efforts, I intend to file a grievance with the State Bar.

Obviously, it is too late to retrieve the damage done to Tom Crawford. But it will be interesting to know whether this additional forceful response will have any long-term effect. And what will be the next reaction? I hope that it does not result in an even more striking departure from norms. This chaotic behavior in search of power does not benefit our community.

UPDATE: Mr. Laidlaw has now created a website, A2Views, where he has written a narrative and linked to a number of important documents.

SECOND UPDATE: An article in the Michigan Daily discussed the second Salvatore report and quotes Mayor Christopher Taylor.

Ann Arbor Mayor Christopher Taylor said he supports the conclusions from the report, and explained the city attorney was in close contact with Salvatore for the duration of the investigation. He also said that while the city attorney may not agree with the conclusions made by the external investigator, the attorney did verify the facts presented in the report.

In an email to all of Council, Laidlaw requested a clarification of that comment. He stated that if the City Attorney disagreed with the conclusions in the report, that calls for a public explanation.

THIRD UPDATE: As reported in MLive, Tom Crawford has now filed suit against the City. The defamations in the second Salvatore report have made it impossible for him to seek employment.

“In a 10-page cease-and-desist letter sent to the city attorney’s office April 8, Crawford’s private attorney Mark Heusel argued City Council publicly released an inadequate and incomplete investigation report in January that potentially ruined any opportunity for Crawford to get a new job in the public sector or any comparable job.”

FOURTH UPDATE: Mr. Crawford was kind enough to supply a full copy of his attorney’s letter and it is published here with his permission. Crawford Request Retraction Letter

 

Stormy Weather: Ann Arbor is Facing Another Utilities Lawsuit

Posted October 27, 2021 by Vivienne Armentrout
Categories: civic finance

In a previous post, In Deep: Ann Arbor’s Water Troubles, we reported on a class-action lawsuit pending against the City of Ann Arbor in regard to water rate. That suit, which was housed in our local Circuit Court, petered out after Judge Archie Brown denied the motion for class certification. As we noted at the time (July 2021), a flaw in this suit was that it focused on water fees and water reserve funds, and only glancingly dealt with the more obvious case of Ann Arbor’s stormwater fee structure. In our Addendum to that post, we outline some of the issues with the stormwater fee (which I am now simply calling a tax).

Now the same law firm (Kickham Hanley) has filed a completely new suit, this time in the Court of Appeals (taking the action out of our local Circuit Court; they explain why they are able to do this). The new suit, Platt Convenience, Inc. v. City of Ann Arbor, is a straightforward complaint that the Headlee Amendment to the Michigan Constitution has been violated. Their case is so simple and factually based to demonstrate this that they state at the outset, that

PURSUANT TO MCR 7.206(E) AND MCR 2.112(M), PLAINTIFF STATES THAT IT DOES NOT BELIEVE THERE ARE ANY FACTUAL QUESTIONS THAT ARE ANTICIPATED TO REQUIRE RESOLUTION BY THE COURT AND PLAINTIFF DOES NOT ANTICIPATE THE NEED FOR DISCOVERY AND THE DEVELOPMENT OF A FACTUAL RECORD.

This is in contrast to the previous suit, which involved extensive discovery (questions for the City to answer), many of which were batted away by the City’s hired lawyers. What the plaintiffs are doing is asking the judges to read their case, and decide on the basis of what is presented. Presumably the defendant (the City) will produce a defense, but that is all the action expected.

The Headlee Amendment and its implications were explained at some length in our previous post. Here is an excerpt:

Here in Michigan, as in many other locations, the tax revolt led by California’s Proposition 13 (1978) resulted in an amendment to the Michigan Constitution (the Headlee Amendment [1978]) that limited taxation by local governments. The intent was to protect citizens from new taxes unless they voted for them. It has several sections but the take-home message is: no new taxes without a vote!  This has severely limited municipalities (cities, townships, counties) in Michigan because the only available source of new revenue has been voter-approved property tax millages.

But municipalities also offer services that can legally be supported by fees. A fee is not considered a tax. It is simply the price of receiving the service. It is not, however, supposed to exceed the cost of providing the service. When is a fee a tax? When it is meant as a revenue source, not merely a compensation for the service.

What Kickham Hanley does with this new Class Action Complaint  is to focus efficiently on all the evidence (and the exhibits are almost exclusively the City’s own documents) that Ann Arbor’s stormwater fee is in fact a tax, and thus is illegal under the Michigan Constitution. These arguments follow the precepts laid down in the Bolt Decision, the Supreme Court decision that is taken to be the definitive word on this issue. It presents a case regarding a simple question:

Is the Stormwater Charge imposed and collected by the City of Ann Arbor, which has been assessed against Plaintiff and the putative class, a disguised tax in violation of the Headlee Amendment?

We will not try to reiterate their arguments and evidence here. Interested parties should read the brief, which is quite detailed and is 50 pages in length.  Brief in Support of Stormwater Charge Complaint October 22 2021 In addition to points on which Ann Arbor’s stormwater fee structure violates Headlee, the brief reviews a number of recent similar lawsuits. It seems a lot of Michigan municipalities run afoul of Headlee as defined by Bolt, and they usually lose. From my reading, Ann Arbor is likely to lose too.

One of the many failures under Bolt that the brief cites is that the stormwater fee is not voluntary. A utility fee is supposed to be voluntary, in that you can limit your usage of the utility. With the fee essentially being assessed against a quality of your parcel, there is no limitation available other than the minuscule amounts that a rain garden or rain barrel bring you. And the penalty for not paying is that the amount gets assessed as a lien against your property. That is a pretty good show of muscle. It almost looks like what the taxman might do.

UPDATE: (July 2022) As reported by MLive, the Court of Appeals has issued an order in this case. Evidently the City attempted to claim that this was just the same old case that had already been denied class status in Circuit Court, but this Court denied that. The plaintiff’s counsel asked the Court to rule on the case directly, but that was also denied. The case has now been sent back to Washtenaw County’s Circuit Court, where the Chief Judge is directed to appoint a Special Master (MLive reports that it will be Patrick Conlin), who will gather facts (both parties will issue lists for discovery) and produce a report. The parties then have an opportunity to object to the report. There are no fixed deadlines for the report to be completed, only for action after the report has been filed. Depending on how busy the Circuit Court is, this is likely to be several more months. (Note that Judge Archie Brown, who presided over the previous case, is retiring.)

 

Disruption, Dysfunction, and Dismay: Ann Arbor’s Governmental Power Struggle (3)

Posted September 19, 2021 by Vivienne Armentrout
Categories: politics

We have just witnessed a classic power grab, using dubious methods to dislodge a responsible administrator. Will the City of Ann Arbor ever be the same? Probably not, if the makers of these events are successful.

Ann Arbor City Administrator Tom Crawford

The news hit the community like a bomb. With almost no warning (the July 20 agenda item was posted just the day before) and certainly no foreshadowing, suddenly we learned that our respected and trusted City Administrator was being terminated. Evidently the action was preceded by a couple of closed Council Sessions (these are confidential and secret and do not appear on the City’s calendar). The July 20 meeting provided little information except that he had been accused of insensitive and inappropriate speech toward employees. The report (dated June 29) from an attorney who had been contracted to investigate, Jennifer B. Salvatore, was subsequently released in redacted form after a vote from Council. This news story summarizes some of the report.

Citizens reacted with shock. Of all the City officials we have known for years and rely on, Mr. Crawford stands out. I personally did not agree with him on all counts (he tended to value tax base over other values) but I could always know that his work and conclusions were based on solid fact and knowledge. At a subsequent meeting, public comment was a flood of objection (though not universal).

Councilmembers hastened to explain. Here are three posts with discussion.

Councilmember Elizabeth Nelson, 4th Ward

Elizabeth Nelson did not support the move. In a blog post  (An Irresponsible Termination) that contained an extensive analysis together with a comprehensive list of source material, she concludes:

A majority of Council would like the community to believe that the decision to terminate Mr. Crawford’s employment was supported by facts, consistent with recommendations, and dictated by city policy. None of that is true. A majority of Council introduced the idea of termination, based on disputed reports from five people. A majority of Council intentionally ignored other available information and rejected specific recommendations to seek out more information.

Remarkably, the justification for their decision contradicts the investigation report and introduces new, wholly unsupported suggestions of policy violation. The example offered as evidence of “past practice” is a 2019 incident involving a city employee and the then City Administrator. Investigation into the then City Administrator stands in stark contrast to what was offered to Council this week: in 2019, the 112 page report included written documentation, five times as many witnesses, as well as two years of past job performance appraisals of the then City administrator. The tiny scope of the Crawford investigation and the comparatively enormous consequence of the resulting Council decision do not come close to conforming to past practice.

Note: while it is true that a numerical majority did vote to remove Mr. Crawford, CM Nelson’s use of the word here is an oblique reference to the current majority of Council members who support Mayor Taylor and ousted incumbents in the fall 2020 election to seize power.

Councilmember Erica Briggs, 5th Ward

Erica Briggs, who supported the termination, wrote an explanatory post. CM Briggs expresses some regret but insists that Mr. Crawford is disqualified because he does not seem able to administer DEI (Diversity, Equity, Inclusion) matters. Her main focus is on the complaints by the employees. City Administrator Investigation contains some interesting context, especially this history:

Ann Arbor’s current City Administrator is Tom Crawford. He was hired as Administrator in September 2020. He served previously as Chief Financial Officer for the City since 2004. In May 2021, some City employees approached Mayor Taylor regarding statements made by Administrator Crawford that they found insensitive and offensive. They did not bring these concerns to the HR Director because the HR Director reports to the City Administrator. In response, Mayor Taylor sought the advice of City Attorney Stephen Postema and a meeting was held in late May between Mayor Christopher Taylor, Pro Tem Julie Grand, Mr. Postema, and Mr. Crawford. Following this meeting, Mr. Crawford authorized an outside independent investigation by Human Resources (HR) Attorney Jen Salvatore to examine concerns about his behavior brought to the Mayor’s attention. Council was notified of this investigation on June 1st. Council was urged to not jump to any conclusions until the investigation had been completed.

Councilmember Lisa Disch, 1st Ward

Lisa Disch, who voted for the termination, sent not just one but two letters to constituents explaining her position. She clearly had some reservations and used the word “struggled” at two different points. CM Disch is fairly new to City politics and this was a hefty decision for a new CM to make. She concludes:

I struggled with the question whether this pattern of remarks rises to the level that warrants concluding Mr. Crawford’s employment. Council received a memo by Human Resources director Tom Guajardo advising Council that to be consistent with past practice in cases like these, separation would be the proper course of action. I cast my vote based on that advice as well as on my own assessment of the import of Mr. Crawford’s remarks.

An Irregular Proceeding

There are many unusual and irregular aspects to the way this sentence was rolled out. One of them is the haste with which it was executed. You might have thought Mr. Crawford was guilty of assault, combined with embezzlement, from the haste in which he was removed from his position of trust and responsibility. The July 20 resolution (item DC 7b) dictated “That the City Attorney work to establish the details of the conclusion of Mr. Crawford’s employment as the City Administrator by the first Council meeting in August”. (This was exactly two weeks from the date of the resolution.) Crawford was to be terminated by September 1. As we noted in our previous post, Rescuing Ann Arbor’s Budget, there were previous indications that Mr. Crawford’s rigorous budget approaches were causing some friction with Mayor Taylor. This timetable of events is certainly suggestive.

The secrecy with which the process was accomplished was pronounced. At some unknown time in May, evidently a small group of employees approached Mayor Christopher Taylor with some complaints. According to the account by CM Briggs (see above), “a meeting was held in late May between Mayor Christopher Taylor, Pro Tem Julie Grand, Mr. Postema, and Mr. Crawford.” The investigator already had a contract in hand when she began her investigation on June 1. She completed her report on June 29. Council held closed (secret) meetings on July 6 and July 12. Mr. Crawford responded to their concerns with a memo (July 13) in which he expressed remorse for his verbal carelessness, gave himself a five-day suspension, and suggested a plan of study to enhance his DEI (Diversity, Equity, Inclusion) skills and practice. Sample: Complete the city’s DEI certificate program. The two remaining sessions are Inclusive Leadership and Tips for Talking about Taboo Topics. It was to no avail.

But at least some Councilmembers were concerned about the secrecy and item DC-7 (introduced by CM Ramlawi and CM Griswold) on the July 20 agenda called for release of a redacted version of the Salvatore report to the public, with the stated goal of transparency. It passed, but not without addition (DC 7b) of the call to terminate the City Administrator.

Investigator Jennifer B. Salvatore

There were many procedural irregularities which would have been questioned strongly if any legal proceedings had been involved. (Mr. Crawford was not represented by an attorney, and he did not contest the decision. He brought in an attorney only to negotiate a separation agreement.)

Ralph McKee, a retired attorney with experience in litigation, wrote to Council with  a detailed analysis of the investigation and the sparse explanation given in an “agenda response memo” by HR Director Tom Guajardo. Mr. McKee has generously given us permission to attach his analysis. I recommend that if you have an interest and time, you read McKee’s statement in whole. But this is not a bad summary:

The investigation conducted by attorney Jennifer Salvatore was incomplete, and her investigative report is incomplete, imprecise, internally inconsistent, and logically flawed. It leaves numerous ambiguities and other flaws that undermine its factual conclusions.

Tom Guajardo, Human Resources Director

McKee contrasts this report with the Stark report, which was prepared in 2019 as an investigation of allegations against the former Human Resources Director, Robyn Wilkerson. Like this incident, the issue was about speech attributed to Ms. Wilkerson. It resulted in her resignation and the management of this situation was implicated (informally and by rumor) in the eventual termination of the former Administrator, Howard Lazarus.  This article in the Ann Arbor News contains many of the details. It also identifies the new Human Resources Director, Tom Guajardo, who began work for the City of Ann Arbor on January 25, 2021.

The Wilkerson case has been used as the antecedent for the judgment of Crawford. But there were significant differences in the investigation and report. In the previous case, there were actual text messages that had been retained. There were 25 witnesses, who were known to the investigator but who were identified only by number.  In contrast, the Salvatore report was based only on comments by 5 employees, and there was no textual evidence. McKee comments (excerpted)

The report, unlike many of this type (such as the Stark report) unfortunately does not identify which witnesses made which complaints and/or other statements.  (I am not suggesting that the witnesses interviewed should be identified by name or position, only, as is typical, by number).  So it is impossible to tell, for example, whether one witness made, say, 5 of the complaints, and the other witnesses one each, or whether one of the witnesses made all of the complaints deemed most serious by Salvatore and/or the agenda response memo. 

… Salvatore uses ambiguous terms like “multiple” and “several”, instead of, say, “3” or, better, “witnesses, 1, 2  and 5”.  This results in some pretty confusing possibilities on key points.  First, “several” typically means 3 or more.  Salvatore notes that “several” witnesses (so, 3 or more) said that they didn’t think they could work with Crawford after the complaints (interestingly, the context suggests that either Salvatore discussed other complaints with each of the complaining witnesses or they discussed them with each other), and “several” thought Crawford “meant well”, suggesting that they could still work with him. 

Quoting from the Salvatore report, “While Mr. Crawford denied outright several of the most troubling allegations (i.e., he denied the comment about hiring minorities; the comment about the African American employee; and the use of the term “the blacks”), I do not find Mr. Crawford’s denials in this regard credible, particularly where multiple individuals either heard the comments or heard about the comments at the time.”  But McKee comments

These conclusory comments, particularly re the “most troubling” allegations, are not well supported by Salvatore’s earlier imprecise descriptions of the actual interviews, and Crawford’s denials are pretty strong as to those particular allegations. 

Again, reading the McKee analysis in full is highly recommended. These excerpts miss many important points made in the full analysis.

According to Salvatore’s own description, she interviewed five (only) employees from remote locations via Zoom. She did not record the interviews, but took notes. She does not indicate that she transcribed the interview (which would be a verbatim account), but merely that she “took notes”. As most habitual note-takers will acknowledge, written notes can be taken in a sort of personal shorthand which necessarily are filtered through the note-taker’s own language usage, thus are subject to introduced overtones. This is particularly concerning since she was grouping conclusions from these different individual interviews.

Salvatore’s analysis and conclusions about the veracity of the complaints were startling. While Mr. Crawford denied outright some of the allegations and sought to give explanatory context to some of the others, she chose to dismiss his denials. None of the individuals who reported the comments had any discernible motive to lie about them.” This is a remarkable statement, considering that he was a top manager in the organization and many employees have general gripes and dissatisfaction with management in most organizations. As the longtime financial manager, Mr. Crawford could have made numerous decisions over the years that would cause dissatisfaction. Considering the weight and potential impact of the testimony, she should have sought some additional information.

Finance Department conflicts

Before taking on the role of Administrator, Tom Crawford spent many years as the City of Ann Arbor’s Finance Director (sometimes alluded to as the CFO, in imitation of corporate titles). McKee points out that the Stark report documents serious friction between Finance and Human Resources regarding a payroll system. Since we don’t know who the complainants are, we don’t know what managerial decisions may have affected them at some point. And we learned later that a number of high-ranked employees were considered to be underpaid. As we noted earlier, budgets and fiscal responsibility were a major focus of Mr. Crawford’s administration. The Administrator’s budget passed in May included eliminating some positions and placed limitations on the expanding Sustainability department. In 2020, with the pandemic that had just hit Ann Arbor and the rest of the state, Crawford proposed salary freezes, salary cuts, and held out the possibility of voluntary furloughs. Top officials did take temporary salary cuts, including the Administrator himself. These uncertainties and possible salary reductions would have been sure to cause resentment.

And then, in case her dismissal of any motivation on the part of the employees was not sufficient, Salvatore then makes the startling allegation that Crawford had “memory issues“. Really? Was there a diagnosis offered by a mental health professional? Were there examples that could document this condition?

One can only imagine the course of events if Mr. Crawford had thought to obtain legal counsel. But as it was, he accepted his fate and negotiated a settlement, after which he resigned gracefully with this letter: Crawford Resignation Letter. In the letter, he does not admit to any specific offense but acknowledges that “I have not always been at my absolute best, which I now understand created hurt, distrust and anxiety amongst some staff” and apologizes to those who were affected.

Bypassing Human Resources Director

One of the many irregularities in this process was that the standard accepted means of bringing complaints about behavior (in this case, mostly comments about race issues) within an organization is to take them to the Human Resources department. HR departments generally moderate and investigate such complaints and attempt to determine their veracity and to suggest a course of action, whether it is remedial training, compensation for damages, or termination in extreme cases. In this case, the “investigator” (Salvatore) appeared to play the role of HR, with a series of judgments as to which provision of the HR policies were or were not violated. She also suggested remedial action. More DEI training, a separate DEI administrator (this had already been decided by Council), and

the City should consider incorporating into Mr. Crawford’s annual performance evaluation process a robust 360 review soliciting feedback from Mr. Crawford’s direct reports on his management style and leadership around DEI issues in order to better understand if there are further and additional concerns in this area beyond the issues that have been the subject of this investigation.

(The suggestion of a 360 review seems a sensible solution. These are often conducted in organizations. Anonymous comments on a person’s job performance and behavior are solicited from other employees in every relation to the person being evaluated. So supervisors, peers, and subordinates are invited by a (typically) outside consultant to submit frank evaluations, which are then summarized in such a way as to avoid identification of the commenters. This presumably gives a well-rounded perspective.)

Ms. Salvatore does not suggest termination, and the general tone of the conclusions appears to indicate that this is a fixable problem.

The new HR Director, meanwhile was left completely out of the loop. The justification given by CM Briggs is that They (the complainants) did not bring these concerns to the HR Director because the HR Director reports to the City Administrator.  This is disrespectful to both men. It assumes that Mr. Crawford would take punitive action, and that Tom Guajardo is incapable of managing this situation as any HR professional would.

A Last-Minute Intervention

As stated here, the Salvatore report did not suggest termination, and instead offered means by which the future behavior and performance of the Administrator could be ameliorated. There was no particular basis for the Council to fire him, based on this report. The last tool available was to bring in the Human Resources Director, who up to now had not been involved.

The agenda for July 20 included an item (DC-7) that would make the Salvatore Report public, with redactions, as well as Tom Crawford’s July 13 memo apologizing and promising to amend his own actions. The item was introduced by CM Ali Ramlawi and Kathy Griswold, in an effort to bring public transparency to what had so far been a secret discussion. But at the last minute, an amendment to this resolution, sponsored by Mayor Taylor and CM Erica Briggs, Jen Eyer and Linh Song, was offered.  It contained these phrases:

RESOLVED, That the City Attorney work to establish the details of the conclusion of Mr. Crawford’s employment as the City Administrator by the first Council meeting in August;

RESOLVED, That the City Attorney advise the City Council on relevant details and any necessary agreements concerning the conclusion of Mr. Crawford’s employment as City Administrator before the first meeting in August

The Agenda Response Memo

On Council agendas, it has been customary to include an “Agenda Response Memo” at the beginning of the agenda. This is usually issued by the Administrator in response to Council questions. Generally the answers to specific questions are prepared by appropriate staff, depending on the department to which the inquiry is directed.

At times this period is also used to introduce new staff or to have a staff answer questions in person, if the intent is to allow Council to seek information about a particular program.

In the case of the Crawford termination, an agenda memo appeared on the Council agenda only hours before the actual meeting. It proved to be critical in justifying the termination of Mr. Crawford. The authors were indicated as “John Fournier and Tom Guajardo”.

Note that the title indicates that this is a staff introduction.

A series of emails sent between officials on that very day laid the basis for a Human Resources contribution, which as noted had not been solicited to date. A FOIA initiated by former CM Jack Eaton is excerpted here: Email Thread 7.20.21

The July 20 email thread makes it clear that Mr. Guajardo, who up to now had been excluded from all consideration of this case, was not particularly aware of developments.

  • At 8:29 a.m. Mayor Taylor sent a request to staff: “Please provide information regarding HR policies and practices in the City concerning protected class inappropriate comments or conduct.”
  • Sara Higgins, the staff person who was responsible for arranging the agenda, replied “I will note this as a staff introduction request for agenda item DC-7.”
  • Higgins then emailed the HR director, “I will add you as the contact for this staff introduction request for agenda item DC-7 and I will also send you the meeting request with the Zoom link for the Council meeting.”
  • Guajardo replied, “Sara – Can someone please clue me in as to what DC-7 is? This would probably be good information to have if I am having to speak to it.” 

It is still not quite 9:00 a.m. But at 9:19, John Fournier, the Assistant City Administrator, writes to Higgins, Guajardo, and the City Attorney, Stephen Postema, as well as Margaret Radabaugh, an Assistant City Attorney.

  • Team,
    Let’s let Stephen take the lead on this one. If he sees utility in including Mr. Guajardo, then we will accommodate. But we will defer to him.
    TG, let’s talk about it at 10 am. (TG refers to Guajardo.)

So you will note that having included the HR Director in this discussion, he is now being backed out. At 9:20, Margaret Radabaugh writes to the group:

  • Tom,
    Stephen is going to talk to the Mayor and recommend that the reply be in writing. I am copying Stephen on this email for further guidance (along with John for awareness). (4 lines are redacted here.)
    @Postema, Stephen will be in touch with you on this issue and I am also happy to help. Call anytime.

At 4:21 p.m., Postema writes,

  • Here is final version with edits. I think the request should be added. John is going to add statement that while the request was concerning a late add Resolution , the HR Director was able to provide a written reply.

(So instead of an in-person appearance by the HR Director, where he could have been asked questions, he is represented by a group-edited statement. And it is clear that this course has been steered by Assistant City Administrator John Fournier.)

At 5:09 p.m. (Council meets at 7:00 p.m.), Higgins sends this message: (emphasis added)

Mayor and Council,
Attached is a staff response to an additional July 20 Council Agenda question that was sent to us late. This memo will be included as a written communication from the City Administrator on the July 20th Council Agenda. While normally a late agenda question would be answered as a staff introduction, Mr. Guajardo was able to prepare the answer today in writing and so it is being forwarded in lieu of a verbal briefing.

Thus, rather than a response actually authored by the Human Resources Director under his own guidance, the Council is presented with an authoritative statement at least partially dictated by John Fournier and Stephen Postema. In addition, he is not given the opportunity to appear before Council to answer questions.

Evidently, this tips the balance or at least justifies actions by individual Councilmembers. It contains the following sentence:

My general practice concerning substantiated discriminatory comments would be to recommend to terminate employment immediately (though this could be effectuated by way of a resignation or separation agreement in addition to termination).

Note that this is not a specific recommendation in the Crawford case. It is presented as a hypothetical. Yet this was cited by some CM as the reason they voted to terminate. CM Lisa Disch, for example, wrote: “I cast my vote based on that advice“.

One can only imagine the course of events if Mr. Crawford had thought to obtain legal counsel. But as it was, he accepted his fate and negotiated a settlement, after which he resigned gracefully with this letter: Crawford Resignation Letter. In the letter, he does not admit to any specific offense but acknowledges that “I have not always been at my absolute best, which I now understand created hurt, distrust and anxiety amongst some staff” and apologizes to those who were affected.

The Why of It

There are clearly many questions and items of dispute remaining about Tom Crawford’s dismissal (formally, he resigned instead of being fired, but no one was confused). It will remain a serious disagreement between two factions of Council who must somehow manage to work together. But it is clear that he got what is colloquially known as the “bum’s rush” – ejection without ceremony.  But why? What was the urgency? The alleged reasons are obviously inadequate. He was careless in his language. But he did not demean any individuals, and the hired consultant stated that she did not believe he actually caused any employee trouble with their job.

…the allegations at issue in this investigation did not involve any claim that Mr. Crawford has taken any adverse employment actions based on race, gender or any other protected category. Accordingly, based on the issues that I reviewed, I do not believe that a preponderance of the evidence supports that the City’s Non Discrimination Policy has been violated.

The lack of propriety and fairness in the process used clearly had a strong motivation. What we have just witnessed was a “palace coup”, which is the takeover of a legitimate government by insiders. What did the instigators hope to achieve? There are several possible explanations, some proposed by other people and some we have already put forth.

Mayor Christopher Taylor on Facebook, August 29, 2021

Overriding a FOIA. It has been bandied about that resentment about Crawford’s releasing material that had been denied in the FOIA process. Crawford reversed an earlier decision and released a police report on a matter that embarrassed Jen Eyer, one of the most powerful Councilmembers, who is thought to have far-reaching political aspirations. But Christopher Taylor, in a recent Facebook “town hall” denied that categorically. He stated,

There is one reason why the administrator resigned that is because the administrator’s workplace statements in the areas of minority hiring, race, and LGBT experience that were unacceptable to the workplace – when a leader makes statements of those kinds, the leader’s not in a position to provide leadership to an organization such as ours. That’s just the way it is. That is the beginning and ending of the conversation.

I consider the FOIA incident unlikely as a motivation as well.

Factional hatred and payback for earlier events. There is discussion of this motivation in “Crawford Out” (the Ann Arbor Observer September issue). There were particularly hard feelings about the firing of Howard Lazarus (he also formally accepted a settlement rather than being fired). Lazarus did not get along with the majority in Council following the 2018 election and he was strongly supported by the Taylor faction. The reporter alluded to this in his conclusion. There is no question that the Council was and is divided along factional lines with regard to opinion about the Lazarus issue. Whether Crawford’s termination was directly seen as payback is questionable. However, some of Taylor’s supporters seem fairly certain.

A tweet from one of the frequent #a2council commenters

Power and Money, or Power over Money. There is considerable reason to suppose that this is the motivation behind Crawford’s ouster.

Over Crawford’s long experience with the City as its Finance Director, he always recommended or imposed a strong budget discipline. It was he who introduced many safeguards and understandings of the logic behind the Budget.

The Budget for any government is a legal document that lays out how money may be spent. Typically money is segregated into designated fund compartments, and transfers between them is frowned on. These fund compartments may have either legally constrained revenue sources (for example, grant funding for a particular purpose must not be used for a different purpose), or they simply reflect the will of the Administrator and the Council working together on priorities. Budget battles are often fought over establishing those priorities and the dollar amounts that come with them. Crawford often made a point of Ann Arbor’s structural deficit – the point that our tax base does not match our expenditures. In the recent budget cycle, (see Rescuing Ann Arbor’s Budget) he spoke gloomily of the possible need to dip into reserves or delay contributions to pension funds, for example.

He also stressed the difference between one-time revenue (like the American Rescue Plan [ARP] funds) and recurring revenue. The point was that you could not budget by using one-time money to pay for recurring expenses.

A “kitchen table” analogy would be that if the rent is due, you might manage to pay it this month by selling a few possessions. But when the rent comes due next month, what will you use then? You need to have a regular source of income if you will be able to pay your rent every month.

The total City budget for FY 2022 is about $470.5 million. But that includes many funds that are not accessible for any but their intended purpose (restricted funds). The General Fund, which can be used for discretionary purpose, is only  about $118.2 million. These are the dollars that Council can spend for priorities, including most salaries and favored projects. The ARP is promised to be about $24.2 million. That is about 20% as much as the entire General Fund for the year. But it is clear that Crawford would not have favored using this windfall just to top up this year’s spending. In informal conversation, he mentioned that there should be plans to address some major issue with it, possibly in collaboration with Washtenaw County.

To return to the kitchen table, an unplanned extra sum of money might be used for investment. A new roof, perhaps, and some addition to the savings account. Not too many extra vacations or other treats.

Enter John Fournier

The Assistant City Administrator, John Fournier, was hired by Howard Lazarus to assist with day-to-day responsibilities. This position had never existed in Ann Arbor City government previously. When Lazarus was terminated, Tom Crawford became the Acting Administrator. When Crawford was appointed City Administrator, John Fournier was still in the Assistant position at a salary of $153,000. He has now been made Acting Administrator as of August 16 and is receiving a salary of $223,600. He has not applied for the open position of City Administrator, and the Council has decided to hire an outside candidate as Interim City Administrator, likely to serve until 2023.

Fournier has shown himself willing to step forward and take action. As we have recounted above, he took charge of the agenda item which led to the termination of Tom Crawford. He stepped in to guide the production of the “agenda memo” which was used as justification for the termination. When Elizabeth Nelson suggested that he had written it (because he did sign it), he sent her a stern letter (Fournier letter) reprimanding her and demanding an apology. In the letter, he denies any role in writing the memo itself, but it is obvious from the emails that he was instrumental in seeing that the final document was a group-edited memo rather than a personal appearance by the HR director.

Even before the formal termination date for Crawford, Fournier announced a number of pay raises for top-ranked staff. One of those is the new HR Director, John Guajardo, who was so recently involved in the “termination memo”. As he states in his August 29 memo to Council (Fournier pay memo),

The day after I was appointed to serve as the acting city administrator (n.b., August 18), I asked the human resources director, Mr. Tom Guajardo, to prepare a pay equity analysis of non-union staff. Over the last several weeks I have met with the human resources director, members of the human resources staff, the city’s senior staff leadership, and city attorneys to formulate a response to our pay equity issues.

I think we could regard that as moving with alacrity. Note that some of these salary raises could be as much as $10,000 per year. Only 10 days after being appointed to a temporary position, a rather far-reaching expenditure is proposed. Fournier references a pay equity study done in 2017, though it is not clear how much that has influenced the current decisions.

Tom Crawford, as we have said, is a budget maven and was likely slow to increase salaries for non-union personnel, especially in this last year. Any governmental money manager knows that FTE (full-time equivalents, or employees) are one of the most expensive items in a budget. There are fringe benefits and pension contributions that add to the base salary cost. Over time, an increase in base salary can add volumes to the final expense of an employee. There is a multiplier effect.

Could it be that Crawford, by restraining growth in compensation for already well-paid administrative staff, garnered ill will? This is not an inconsequential question for someone who was just terminated based on anonymous staff complaints. In any event, it is clear that Fournier is not feeling inhibited to spend money.

It is also evident that he is in the catbird seat, at least in the near future. A choice has not yet been made between the candidates for Interim Administrator, and there must surely be at least a month or two before one will be installed. Even then, Fournier will have considerable influence, as “the man on the scene”.

Mayor Taylor, Missy Stults, and A2Zero

Mayor Christopher Taylor has been very, very clear. He is thoroughly committed to the issue of Ann Arbor’s carbon reduction (we’ve promised to be carbon neutral by 2030).  As we have quoted him a number of times, he has basically promised disruption, transformation, a complete change of the way we do business. (See here again.) There are various estimates of how much A2Zero will cost, (here is last year’s: A2Zero Investment Plan ), but it has been said to be roughly $1 billion over 10 years. The City General Fund is only slightly more than $100 million per year ($118 M). This would consume nearly the entire City discretionary budget.

Missy Stults, who was brought on by Howard Lazarus to direct the new department of Sustainability and Innovation, is clearly a very ambitious and pro-active leader who also generally seems to command respect and appreciation. Here is what John Fournier said in his recent memo:

…with three years of hindsight it is clear that Dr. Stults has created an ambitious, transformative, and effective city unit of more than a dozen staff members who are working with partners across the organization and community to create a more sustainable future. I have come to regard her work as essential to the city’s operations, and her unit of government has become a true enterprise function within our organization.

There are only two problems with the broad-ranging A2Zero program (other than its cost). In my estimation, it won’t achieve its goals, and there are no metrics in place to indicate progress toward them. (See our discussion of this.)

And also, many of its elements are either currently illegal under Michigan law, or impractical for other reasons. But then there is also the fact that it would consume almost our entire governmental structure. What services that we have come to expect as a matter of course will be challenged? This is unknown, but not impossible to foresee. Further, our Mayor has repeatedly promised surprises. In the preliminary document provided prior to last year’s Council vote, Stults indicated that some other City departments and programs could be attached and used. For example, Solid Waste and the Stormwater fund. Certainly, if we are spending over half the City Budget on this program, it will be spreading its wings over many functions.

Power unleashed

It seems clear that there is a strong coalition within City Hall that is seeking to gain control of the money, and the control, of many aspects of our City government. Note that the ARP plan, which was supposed to be presented by October 1, is not spoken of. In contrast, the Board of Commissioners has had County-wide discussion and come up with a draft plan. It is admittedly controversial, but appears to be a solid and considered attempt to address priorities. What will happen to our allocation? I would be pleased to hear that Council is considering alternatives. But frankly, I think that A2Zero is able to absorb the entire amount. Mayor Taylor has already put forth the idea of a new millage to further support it, but it has evidently been postponed till next year.

Dismay

The City of Ann Arbor is in the midst of a very troubling time. It goes far beyond the usual squabbling over unwelcome developments or ordinances. This is an uncertain time for the world, the nation, the states, the people. We have been relatively fortunate in Ann Arbor because of our inherent wealth (in terms of resources) and our well-educated population. We also seem to be fortunate in terms of the weather, compared to many other places. But our governmental structure seems to be dissolving.

One truly dismaying factor is the divisiveness and outright nastiness. Of course, we have had that Greek chorus of #a2council jackals on Twitter for some time. (There is a lot they don’t like about many of us who live here.) But the complete collapse of civility and discourse in our City Council is truly a source of dismay. See Disruption, Dysfunction and Dismay (2). There appears to have been established a culture of character destruction against elected Council members and others who simply have different notions of what the City should supply to its residents, or what its character should be.

Evidently this is a general trend within our culture. A recent essay in the Atlantic Monthly by Anne Applebaum, The New Puritans, describes it with chill-making accuracy. Typically, someone simply uses a term or a turn of phrase that is deemed offensive. Then there is an outcry, a shunning, a dismissal, all without any mediation or search for true meaning. People have lost their jobs, their friends, their reputations, basically through mob action.

This method has now been “weaponized” right here in our little enlightened city. First, there was the destruction of Jeff Hayner (though he still sits on Council). I’m not going to try to argue Jeff’s case here, but at any distance it would have been seen as incredible to have numerous Council actions against him for the injudicious use of two words in quotations, not aimed at any individual.

Having succeeded so well with that, it was evidently determined to use the same tool against our City Administrator. The timing of the complaints was very convenient, and odd. Most of the attributed comments had evidently been made some time ago, perhaps months. Suddenly, as we have already described, five employees chose to meet with the Mayor and complain about a variety of verbal offenses. The meeting occurred just after the City was announced to be receiving a big pot of money. If these two events are not connected, the universe is very strange indeed. And now we are seeing a rapid move to change the allocation of money, since the budget guard is gone.

How can this be happening in Ann Arbor, Michigan? It is hard to comprehend.

UPDATE: We speculated that the American Rescue Plan funds were a major reason for the unceremonious dismissal of Mr. Crawford. Sure enough, a “plan” appeared almost immediately from Acting Administrator John Fournier. This post by CM Elizabeth Nelson sheds some light on how that happened.

SECOND UPDATE: (March 18, 2022) The City of Ann Arbor has announced that the resolution to appropriate funds from the ARPA Covid relief monies distributed by the Federal Government will be acted upon at the April 4, 2022 Council meeting. Here are the recommendations from the Administration  ( ARPA 2022 ).

THIRD UPDATE: The City Council approved the final dispensation of the ARPA funds on April 6, 2022. Here is the web page that outlines the items in detail. The new City Administrator, Mr. Dohoney, is to be commended for the public participation sought in this process.

There were many adjustments and changes made to the original list provided by John Fournier.  One outstanding change was the shift to housing and human services. $4.5 million was designated for housing and $1.68 million to the human services (social safety net) fund managed by Washtenaw County. These are certainly appropriate to the intended use of ARPA (to soften the blow of the COVID pandemic).  A total of $6.5 million was directed to A2Zero priorities (including transportation). Two items are questionable in budgetary terms, $3.5 million for “unarmed response” (alternative to 911 for emergency calls) and $1.6 million for a Universal Basic Income pilot. There is no obvious source of funding for these new programs in the future and under budgetary discipline one would not expect to see a one-time pool of money used to create programs that will possibly be orphans in the future. There were also a couple of good solid infrastructure allocations (as one would have expected with a one-time windfall). Galvanized Water Line replacement $2 million; Gallup Park Bridge $2.3 million; and an improved City Clerk facility $1 million were all the sort of one-time investments that will have long-lasting effects.

The City Budget is a much larger subject than this one fund, however. It will take some watching under the new regime. The declaration that “there is no structural deficit” is going to take some study, especially since this year’s budget used a withdrawal from reserve funds to balance.

 

NOTE: Readers should know that comments are moderated on this site. In the past, all comments were automatically posted but some people made unacceptable comments and forced me into moderation.

I will not be allowing any more comments about the Jeff Hayner situation unless they have new information (not rumors) or excellent insight. These comments are generally not productive.

 

The Long Saga of the Fuller Road Station

Posted August 24, 2021 by Vivienne Armentrout
Categories: Transportation

Over 11 years after it was first envisioned, it appears that the dream of a parking structure and train station in Fuller Park is dead. A pointed letter from the Federal Railroad Administration indicates that the project as proposed is irretrievably flawed and no further action on Ann Arbor’s efforts to apply for funding is likely.

Neumann-Smith rendering of proposal; parking structure on left, station to right (gable)

The letter from the Federal Railroad Administration, dated August 11, 2021, must have arrived at City Hall with the force of an earthquake. Ironically, it was directed toward a man who was no longer there – Tom Crawford, our recently deposed City Administrator. The letter is brief and to the point. Here are the most pertinent points. They were written in paragraph form but placed in bullets here, emphasis added.

  1. However, as FRA previously informed the City, the cost estimate for the City’s preferred project is an order of magnitude higher than other new intercity passenger rail and multimodal stations for which MDOT was awarded Federal funding by FRA to construct.
  2. The cost is high because the City’s preferred location for the station is constrained and the City is proposing a substantial amount of parking, requiring the station to be located over the tracks.
  3. In addition, the City’s preferred station design exceeds intercity passenger rail needs.
  4. Therefore, FRA is discontinuing the development of the EA and does not intend to complete the environmental process at this time.

Mayor Christopher Taylor, who has been a major cheerleader for the station, predicted in early 2018 that the City of Ann Arbor would receive a go-ahead from the FRA by the end of 2018.  The City has been in long discussions with the FRA in an effort to comply with the requirements of the National Environmental Policy Act. NEPA requires a Finding of No Significant Impact (FONSI) that indicates a project will not cause environmental harm before Federal funding can be applied to projects. Once that finding was received, the City would be clear to seek grant funding for construction of the station. (The earlier grant was only for preliminary planning and design.) It hasn’t happened.

Point by Point

Here are the underlying facts behind each of the important points made in the FRA letter.

(1.) However, as FRA previously informed the City, the cost estimate for the City’s preferred project is an order of magnitude higher than other new intercity passenger rail and multimodal stations for which MDOT was awarded Federal funding by FRA to construct.

Translation: The cost is hideously high – ten times that for any comparable proposal for a new train station. The reference is to the ARRA grant of $198.6 million received by MDOT to improve and strengthen the Chicago-Detroit line (Wolverine route). This grant, administered by MDOT, is the source of the $2.8 million Ann Arbor has used to plan the FRS. At last estimate, the cost of both phases of FRS would be $171. 4 million (Final Cost Estimate). Compare to the cost of the Dearborn station, constructed with these grant funds for a cost of $28.2 million (open in 2014), and the Troy station, about $12 million (open in 2014; part of the cost paid by other transportation funds).

(2.) The cost is high because the City’s preferred location for the station is constrained and the City is proposing a substantial amount of parking, requiring the station to be located over the tracks.

Translation: Because of the insistence by the City that the location should be in Fuller Park, rather than any of the other sites considered (the current Depot Street location was much favored by many commenters), the parking structure is loaded tightly into the area currently occupied by the UM parking lot. That lot is situated in part of Fuller Park that has been leased to the University of Michigan. The UM has only temporary possession of it, since the lease must be periodically renewed. However, by virtue of this possession, a structure could presumably be erected on it to serve the UM. This has been clearly stated as an objective since the very first version of this project. (Note diagrams in our post, Fuller Road Station: It’s All About Parking. )

According to the Architectural Narrative (Neumann Smith, 2018), a total of 1332 parking spaces is planned (Phases I and II).

The proposed design. Note that the main section is the parking structure. The station (pink/orange) is poised over the tracks.

As noted in the letter, this immense amount of parking in a small space has resulted in the positioning of the train station over the tracks. It is so obviously a near afterthought.

(3.) In addition, the City’s preferred station design exceeds intercity passenger rail needs.

Translation: The design of the station, especially the requested parking accommodation, is based on a very large estimate of future passengers for the train service. But based on ridership for the intercity traffic (as distinguished from a commuter usage), this exceeds any reasonable estimate of people wanting to go from Ann Arbor to Chicago, for example. There are some subtle policy differences here. Amtrak service (which this project is supposed to support) is primarily an intercity network, though commuters may use part of the system. But commuter service is different and may involve entirely different management and even equipment. Indeed, MDOT attempted for some years to refurbish some used train cars to serve commuters. While the tracks are used by all rail providers (including freight trains), MDOT’s grant was actually to provide high-speed rail for intercity travelers.

Mayor Christopher Taylor has clearly confused these two uses of a rail system. In his 2018 letter to constituents Annual Report 2018, he predicted 1.5 million passengers by 2040.

Additionally, the Regional Transit Authority of Southeast Michigan (RTA) is proposing commuter rail service linking Ann Arbor and Detroit along the same rail right of way. Should the proposed commuter rail service be implemented, the RTA projects that an additional 143,320 to 229,950 passengers per year would use the station for work commute trips and other intra-metropolitan area travel. Combined intercity passenger rail and commuter rail passengers could result in nearly 1.5 million total passengers per year using the station in 2040.

We now know that commuter rail service between Detroit and Ann Arbor is unlikely to happen in the near future, since the RTA millage (2016) failed to pass, as did several attempts to revive it. But Taylor also exposed a conceptual error here, since the primary use of this grant program was not to support commuter rail.

Examination of FRA comments on a review draft of the Environmental Assessment reveal a concern with cross-talk on this conflation of the two types of rail travel and usage.

The core point here is that the projected rail travel does not justify this number of parking spaces, and therefore this immense parking structure. It has so clearly become a case of the tail wagging the dog, with the little train station nearly engulfed in a parking structure.

(4.) Therefore, FRA is discontinuing the development of the EA and does not intend to complete the environmental process at this time.

Translation: What is not quite said here but is certainly intended, is that the project is dead as currently configured. Since the NEPA approval is required to access Federal funds and it will not be coming and is no longer in process. That is it, finis, kaput. Or, with apologies to Jim Morrison,

This is the end
Beautiful friend
This is the end
My only friend, the end
Of our elaborate plans, the end
Of everything that stands, the end
No safety or surprise, the end

A Long History

Perhaps the best starting point in understanding the history of the Fuller Road Station (FRS) is the letter to citizens of Ann Arbor sent by former Mayor John Hieftje on July 28, 2011. As we recounted in our post, Fuller Road Station and the Mayor’s Letter, Hieftje explained that the station would be built (located at the site of the parking lot on Fuller Park) as a replacement for the current Amtrak train station on Depot Street. It would be a joint venture between the University of Michigan and the City of Ann Arbor, with some Federal funds paying for the majority of the cost. But the UM would essentially pick up the matching funds. He stressed that

A big advantage of the financing plan for the overall community is that the University’s upfront contributions can meet the required local match for federal funding for the entire rail station…The Fuller Road Station, Phases I and II can be built without any significant upfront cost to the City.

Some millions of dollars expended by the City later, the basic theme has remained the same: We can build an elaborate parking structure with an appended train station with little local City money. The Federal government will pay for most of it and the UM will pick up the rest. And, importantly, the station must be built at the Fuller Road site.

An Early Hiccup

We have detailed the history of the City’s failed joint project with the UM in our post Fuller Road Station – A Review. Delays in attaining approval from the Parks Commission and the Council caused the UM to withdraw from the agreement in February, 2012. But a new vision quickly replaced that one. President Obama’s ARRA (stimulus program) awarded a grant to Michigan to implement Obama’s vision of high-speed rail. In September 2011, US Rep. John Dingell announced that Ann Arbor would receive a small fraction of that grant ($2.8 million) for planning a train station. (Note: Federal grants were made on an 80% Federal – 20% local match basis. The actual amount of the grant was $3.5 million, of which Ann Arbor must provide $700,000.)

Tough going

The communications with the FRA were evidently difficult as the City attempted to get approval of the preferred site for a new station in Fuller Park. The FRA required the City to look at different site alternatives, which required a separate analysis (Alternatives Analysis, Phase I, Phase II). As discussed in a May 2016 article in the Ann Arbor News, there were some changes in FRA management of this project. Attempts by the News to obtain information were answered with heavily redacted email text. Citizen FOIA requests were similarly answered with heavy redaction.

The City submitted its Environmental Assessment to the FRA in September 2017 and it evidently was subjected to some hard review. As described in the Ann Arbor News, a tough conference call in April 2018 involved many probing questions from the FRA and a surprise requirement to engage in an archeological study. This required an additional cost, another consultant, and another delay. The study was completed in October 2018 and no further action was required. This was the comment: “none of these sites appear to be associated with important events or patterns of history, or with individuals significant in local, regional or national history.”

There was also extensive public comment, much of which stressed unhappiness with the choice of the Fuller Road site rather than the existing location on Depot Street. Ann Arbor staff and consultants were required to respond to these comments as part of the EA process, but the comments and response are not shown on the City’s web page for the project. The last update to the City’s Ann Arbor Station web page indicated that a revised EA was being reviewed as of June 2019.

At What Cost?

The promise that no City of Ann Arbor funds would be spent was abandoned some years ago. The actual period of the grant ended on September 30, 2017, after which the City was working on its own dime (could not apply any expenses toward the grant). This was well covered by the Ann Arbor News and we asked whether the Council was ready to gamble (they did).

This article details a number of the projected costs.  It mentions the embarrassing gaffe that the project team made in failing to add up the figures. (Rita Mitchell, a citizen volunteer, brought the error to their attention.) In recent years, the Council has been obliged to vote on additional funds to complete the EA process.

Notably, the project has stayed at the top of City budget priorities, in spite of the eye-popping numbers. The Capital Improvement Plan (CIP) is the best report the City’s financial departments are able to produce, showing both the timeline and the projected costs of capital projects. The Ann Arbor Station has stayed at the top priority for years, and is still there. But the schedule has slipped.

 

 

The CIP is intended to show costs in “all funds”, including local and external. Note that for the NEPA activities, all have already been spent (click to enlarge the figure). We are currently in FY 2022, and the total is shown as $2,386,000 (figures must be multiplied by 1000). This is not the complete cost of our activities because that is less than the amount of the grant, and we know that was exceeded. Final design (which would require new funding) is intended to begin in FY 2023 (next year) and planned to cost $14,700,000.  The station construction is shown to begin in FY 2026 and to cost a total of $86,068,000. Of course, without grant funding (which was never guaranteed but is now impossible), this will not happen.

Taylor has continued to suggest that the Federal government will pay 80% of the cost of any construction. But of course, there has to be a program. The TIGER program expired several years ago, and until our new rail-loving Secretary of Transportation makes some announcements, we don’t know of a current program by which Uncle Sam would buy us a train station. Also, most programs are competitive and it is not clear that this project would be successful, for many of the reasons stated in the FRA letter. In any event, without compliance with NEPA, the project is simply dead in the water.

And 20% of any program in the tens and hundreds of millions is still a lot of money. It has always been hinted (or said directly) that the UM would pick up a big piece of the costs for matching funds. Other “partners”, like the AAATA (which has its own funding problems) have also been suggested, but basically the question of how the City would pay for millions in matching funds has essentially been answered by hand-waving. Finding partners for $24 million or so might be challenging.

The Fatal Flaw

So what went wrong? Aside from a number of over-optimistic projections about commuter rail, etc., the true problem is that this project was always about parking for the UM. It began with the effort to keep a parking structure from bothering neighbors on Wall Street (long since constructed) and ultimately grew to a size and configuration that was impossible to defend as a transit project. Though the high employee count at the UM Hospitals was used to justify the possibility of an eventual commuter train, in reality the UM hospital staff agitate for more accessible parking. (The City Council just renewed the lease for the three parking lots once again.)

We could speculate about the connection between our Mayor’s insistence that the “station” will be built and his close ties to the UM, but there is no evidence that any direct pressures have been brought to bear. In any event, it is clear that the UM and its need to expand parking have played a large part in the design and placement of this overblown project.

What now? Indications were that City officials may be having conversations with MDOT and others, seeking to breathe life into the project. They are unlikely to succeed, given the finality of the letter from the FRA.

NOTE REGARDING COMMENTS: It has long been our rule that commenters must give a true name in order to participate. Some comments have been received that are excellent comments, but are anonymous. I dislike taking down comments after they have been posted, therefore we have now instituted moderation of comments. Comments should also be relevant to the subject of the post, and otherwise follow our previously posted guidelines. (See About.)

ADDENDUM:

Many readers may have missed the excellent blog, All Aboard on Depot Street. I certainly did. Because of programming decisions, the Home page does not take the reader to recent posts. They can be accessed from this page. (Note: this site is not secure and your system may give you a warning.)

You’ll note from the post that I have referenced here that the FRA has been sending the City messages about the inadequacy of the proposed project for some time. A document is shown here that dates from 2018. It expresses many of the same objections and concerns that were stated in the “goodbye” letter, in almost the same language.

This paragraph is from a message sent by Melissa Hatcher, who was managing the EA review, to Eli Cooper (the Ann Arbor staff who has been the major contact for this project) and Michael Nearing (the city’s project manager for infrastructure). The letter in general is urging a rethink of the PE (engineering) plan because of the excessive costs.

As best we can surmise, there was no action taken as a result of this letter. There was no rethink of the project and there was no publicly discussed effort to reconsider the project. It appears that the strategy was “hold on and hope”.

It is notable that essentially the same information was sent in the August 2021 letter, but this time it was sent to the Ann Arbor City Administrator, presumably the top individual in the organization. So the current letter is the proverbial club to the head. “Get this???”

UPDATE (September 5, 2021): Some interesting afterthoughts by John Hieftje, the former Mayor, quoted here. He accurately notes that in those early days MDOT was leasing rail cars to establish a commuter train system, which seems unlikely now.

“It was a different scenario back when I was hoping to get this project built,” he said. “The world’s a different place.”

SECOND UPDATE (October 13, 2021) Apparently supporters have prevailed on Congresswoman Debbie Dingell to go to bat for the Fuller Road Station. We can only hope that it has little effect, as it should. There are committees. Appropriations are required. Transportation funds are always limited. And this is just a bad, overblown idea.

 

 

Disruption, Dysfunction, and Dismay: Ann Arbor’s Governmental Power Struggle (2)

Posted August 1, 2021 by Vivienne Armentrout
Categories: politics

This is the third in a series of posts about the crisis in Ann Arbor’s City Council.

Dysfunction

With the stunning overturn of all Council incumbents in August 2020 and the installation of an entirely new slate of Councilmembers, it was reasonable to expect some new directions from Council, with the leadership of Christopher Taylor as Mayor. Taylor had often clashed with the previous Council majority. But this is Ann Arbor. Our town literally has the highest number of citizens bearing advanced degrees in the nation and we consider ourselves to be cultured, liberal, sophisticated, and rational. Surely our Councilmembers could collaborate, negotiate, and come to solutions that would benefit the citizenry of our town. We are civilized people, after all. I certainly expected this. The new CM are all well-respected citizens, many with previous public service and all well-qualified to have assumed this responsibility. Sadly, this has not been the case. We have experienced shocking and even embarrassing event piled on event. And sadly, the comity between the two factions has been almost completely absent. The new lineup has consistently voted according to the evident directions of their Mayor, and 7-4 decisions have been almost universal. But most sadly, the early indications here and there of collegiality have disappeared.

Taylor’s new CM. From left, Lisa Disch, Jen Eyer, Erica Briggs,Linh Song. Travis Radina not shown.

Perhaps this should not be surprising. The style of politics in this entire country has been on a steep decline. Yes, James Carville said that “politics ain’t beanbag” but apparently that expression goes back to the 19th century.  (Disclosure: I have actually played beanbag, in church camp. You throw little pillows that are loosely filled with beans at each other. No one gets hurt.) It now seems that lies (even Big Lies), character assassination, and the occasional kidnap attempt are our new political reality. When Congressmen call the January insurrection culprits “political prisoners”, all bets are off.

But so far in Ann Arbor, the main weapons of choice are simply unbridled nastiness. The principal field of battle is social media, with occasional breakouts into overriding all procedural niceties on the Council floor in order to condemn others. I’m fond of the term “toxic political tornado” (this is the MLive article detailing efforts to establish some rules).

Denying Dignity and Credibility

While we understand that there will be differences, in the old politics one could at least grant one’s opponent the benefit of the doubt. Respect even for those who disagree, and a recognition of different perspectives is a sort of civil discourse that used to be customary. Evidently what we used to call “civility” is out of fashion.

Artist’s rendering of a portion of the Valhalla project

One small example: On June 7, Council discussed rezoning to accept a new development called Valhalla. This has been controversial and has several issues, including neighborhood opposition and complaints from the UM. It is extremely dense and several buildings could be called “high-rises”. It does not fit the Master Plan but the Taylor faction praised it for its ability to accept new families so that they could stop commuting into Ann Arbor (this is part of the A2Zero concept). Evidently CM Kathy Griswold commented that children do not do well in high-rise apartment buildings. She also asked about other accommodations for children. The project was approved, 7-4, with all of the Taylor contingent voting “yes”.

After the meeting, this twitter conversation was held. (#a2council is a twitter tag used for frequent observers of the Council meeting, most of whom favor Taylor’s programs.)

Note that “Cabrini Green” was an infamous Chicago housing project. According to Wikipedia, “Crime and neglect created hostile living conditions for many residents, and “Cabrini-Green” became a metonym for problems associated with public housing in the United States.” It was torn down in 2011. Using that comparison would be serious hyperbole, and it did not sound like CM Kathy Griswold’s style. In a personal interview, she denied mentioning that name at all. She explained her comment about children in high-rises on the basis of her training and experience (she is a MSW social worker and at one time worked in Detroit in that capacity).

In the 1970s I attended a workshop on urban design in Toronto and learned that there were issues that have been identified with the
well-being of children living in low income high-rises. Later, as part of my MSW coursework and as a social worker in Detroit, I became familiar with public housing projects in other cities. I noted that our public housing for families in Ann Arbor has been designed as townhouses around common play areas to provide “Eyes on the children.” The phrase is similar to “It takes a village.” The design fostered a sense of community and support so the children could be watched by neighbors.

So in this one particular case, a CM with specific experience and knowledge is mocked for a statement made on the solid ground of that experience. Further, she is misquoted, misinterpreted, and then labeled as racist, classist, and anti-renter based on those misrepresentations. (That last word is a euphemism for “lies about the person”.)

Sadly, this is not an exception. CM who are not on the Taylor lineup are routinely disparaged in social media and in the actual meetings.

This means that all decisions are being made by the one tight coalition, without actual deliberation or an attempt to benefit from what other CM offer in terms of expertise or insight. It is harmful to our democracy, unproductive for the business of our City, and unfair to the persons who are representing their constituents after winning free and fair elections. One should not be subject to abuse in the course of doing one’s elected office. It is sadly reminiscent of some of the appalling behavior that we are reading about in Congress.

 

 

 

Disruption, Dysfunction, and Dismay: Ann Arbor’s Governmental Power Struggle (1)

Posted August 1, 2021 by Vivienne Armentrout
Categories: civic finance, politics

This is a chaotic and potentially hazardous time in Ann Arbor. The next posts will attempt to set recent events into context. They should be read after first reading Rescuing Ann Arbor’s Budget.

Disruption

Disruption is a favored concept in the business of technology. “Disruptive technology is an innovation that significantly alters the way that consumers, industries, or businesses operate. A disruptive technology sweeps away the systems or habits it replaces because it has attributes that are recognizably superior.” (Investopedia) One well-known disruptive technology that has changed our politics is Facebook and other social media. Mark Zuckerberg, in earlier days, made his motto “Move fast and break things.” (It was changed in 2014.)

Ann Arbor’s Mayor, Christopher Taylor, has clearly taken this concept to heart. As we discussed in an earlier post about Taylor and disruption, he has been using that word and stressing that concept for many months. “Disruption is not something we do terribly well in Ann Arbor. Business as usual will not be acceptable. Things are going to have to be different.” And as quoted in our previous post, “The old way of running an economy, the old way of doing business, the old way of operating civil society is subject to change…”

It was not always so. In running for re-election (2018), a sunnier Taylor had this to say about Ann Arbor:

I like Ann Arbor the way it is, and it’s changing every day. I think we have a great thing going on here in our community. We are, I believe, going in the right direction. We’re a community that strives to balance character and affordability and demand and vitality. We need to make sure that the development we have in our community is smart and sustainable and that it doesn’t adversely impact residents’ quality of life. Change will come. We just need to make sure that it’s channeled, that it’s change that is good for us all today and tomorrow.

Mayor Taylor in 2017

At the time, Taylor ran on assurances that basic services would be a first priority (important to residents). We would even maintain quality of life. Things began to change after he ran into a hitch in an important achievement, the sale of the Library Lot to Core Spaces. With his 8-3 majority on Council, he easily won approval (April 2017). But a group of citizens stubbornly plowed along to collect signatures on a petition for a ballot issue to prevent the sale. One week after signatures were complete and as the ballot issue looked likely to materialize, Taylor ill-advisedly rushed the completion of the sale contract on a weekend without taking the agreement back to Council as the Charter prescribes. (Only Taylor, City Administrator Howard Lazarus, and City Clerk Jackie Beaudry signed the contract.) This occasioned a lawsuit from two Council members. In addition, the group seeking a win on the ballot filed a lawsuit via Thomas Wieder, a well-known litigator.

Mayor Taylor looks as though he has things on his mind. (February 2020)

But though Taylor himself handily won re-election in the primary election of 2018, he suffered a major blow. Three incumbents were displaced, losing him his Council majority. Then in the November election the citizen’s ballot measure passed, making the Library Lot a public space. This was suffered in disbelief for nearly two months; finally the City settled the two lawsuits (January 2019) and notified the purchaser of the Library Lot that the agreement was off.

One can almost sense that Taylor’s feelings for residents of Ann Arbor may have shifted with these sequential losses. He became noticeably tense and snappish. And he moved decisively to correct this power imbalance. As we reported in our post, Disruption in Ann Arbor: It’s a Promise, he recruited an impressive slate of challengers and backed them up with strong criticism of the incumbents. Money poured in and the challengers received twice as much in donation dollars as the incumbents, in addition to strong social media support from Ned Staebler’s Inspire Michigan PAC. (See our post, Factions, Frictions and Futures: Election Time in Ann Arbor.) The incumbents were overturned and Taylor had his majority back again. The new majority took office in November 2020 and set about undoing many of the actions of the previous Council, especially those in regard to property and development. As we have noted in the past, this is a  new political direction and a major shift in policy from earlier years in Ann Arbor. With the new majority, Taylor is succeeding in moving in that direction rather rapidly, at least in terms of Council decisions (cue the disruption). A March article in the Detroit Free Press highlighted the differences between the remaining incumbents and the new slate. But what it doesn’t quite show is how many 7-4 votes have occurred, many of them overthrowing the decisions previously made by the old majority. The effect has been to make more of Ann Arbor’s valuable land area accessible to developers.

A2Zero and Development

In November 2019, Council passed a resolution calling for the City to become climate neutral by 2030. A plan was to be prepared by Earth Day 2020. The A2Zero plan (April 2020 is still the current version) was finally accepted on June 1, 2020. The Welcome letter is signed by Mayor Christopher Taylor. It is a call to action:

achieving carbon neutrality within a decade will necessitate that we all work together. It will necessitate collaboration, innovation, and disruption. If we are to achieve our goal,  Ann Arbor 2030 must be vastly different from Ann Arbor 2020.

A close reading of A2Zero is that it is a roadmap to a much denser city. While the premise is to make Ann Arbor carbon-neutral, that means only in terms of carbon dioxide generated within the borders of the City. A major theme is to bring automobile users to live here, and ideally to use non-motorized transportation.

A2Zero provides Christopher Taylor with a popular and credible premise (to address global warming) for making policy to facilitate dense development. The entire strategy as proposed will be incredibly expensive. The proposed overall budget is $1 billion over 10 years. That is 1000 X $1 million, or 10 X $100,000,000. The City general fund revenues for the current fiscal year (as budgeted) amount to $118,316,0321. (See Rescuing Ann Arbor’s Budget.)That is going to take some creative bookkeeping. At one time we would have assumed that our CFO (and then City Administrator) would ensure that good process was followed. However, it appears that this procedural obstacle has been removed with Tom Crawford’s dismissal.

Taylor is indeed succeeding with the strategy of “Move fast and break things.” The dismissal of Tom Crawford clears the way for him to solidify his power base and to accomplish the major rearrangement of our community that he has promised. He is now making some moves to eliminate inconvenient Councilmembers. Students of history will recognize all the classical elements of the palace coup. To some extent, the voters of Ann Arbor may yet exert a weak influence, but he very nearly has his power base secure. He should be smiling again before long.

 

 

 

 

 

Rescuing Ann Arbor’s Budget

Posted July 30, 2021 by Vivienne Armentrout
Categories: civic finance

The City Budget determines how money may legally be spent. It is a complete accounting of revenues and expenditures for the forthcoming fiscal year. This is really the major work of the City Council and City Administrator. More attention is given to zoning matters and the occasional ordinance change, but the weight of actions lies with expending money according to the Budget.

Note that the General Fund is $118,160, 321. Revenues exactly match these expenditures.

The City Fiscal Year is on a July-July basis. Thus, we are now operating in FY 2022. Yes, the calendar says 2021 but until July of 2022 we are busy spending next year’s budget. (Washtenaw County operates on a calendar year budget, so they are still living in 2021. The Federal Government FY begins October 1, as does the State of Michigan.) Every year, the City Council is required to approve the next year’s budget by the second meeting in May. Here is the FY 2022 budget as approved in May 2021.

This year and last year have been rather confused because the COVID pandemic changed nearly everything. City revenues, which depend in part on parking revenue, were down severely and in the December 2020 Budget planning session  City Administrator Tom Crawford’s summary was, “We’re in turbulent waters.” Projections were that the Budget could be facing a $2.8 million to a $9 million shortfall.

Several months later, the Administrator’s message was still cautious.

In Budgetspeak, this meant that the deficit had to be made up by using reserve funds. We don’t like to do that. The savings are there in case of catastrophe (a worldwide pandemic comes to mind). Note that sentence about long-term stability. That is a budget director telling you “we have to tighten our belts”. The role of a budget director is to make sure that money is always available for its required uses and never to overspend.

Stresses and Strains

There were stresses obvious already in December 2020. From the news report:

The city’s sustainability office has identified a need for $6 million next fiscal year and $11.2 million the following year to work on implementing the A2Zero plan, Horning said. At a bare minimum, if the work was pared down with portions of the A2Zero plan deferred, the office would need $3.2 million next fiscal year and $5 million the following year, he said.

Note the disjunct: Sustainability (e.g. A2Zero) wanted $6 million, but there was already a structural deficit, and then more trouble likely ahead just to keep the boat floating. Here we see a suggestion just to “pare down” A2Zero.  “Council Member Ali Ramlawi, D-5th Ward, said the A2Zero plan council unanimously adopted this year was ambitious and the city has lacked money to fully support it right away.” But Mayor Taylor pushed back. “In my view, the work that is promised or foreseen under A2Zero is really a moral imperative,” Mayor Christopher Taylor said. “It’s imperative that we do this here in Ann Arbor and it’s imperative that we do it in every jurisdiction throughout the country and indeed the world, ultimately.” Taylor is being consistent. In April 2020, as we were in the midst of the first hit of the COVID crisis, he was quoted in the Michigan Daily as saying this:

“All lines of work, all manners of doing things, are open to interrogation. The old way of running an economy, the old way of doing business, the old way of operating civil society is subject to change, subject to reexamination, subject to improvement. As we figure out where we go next, reconstituting as a functioning society with the goal of carbon neutrality will be a part of our recovery.”

This vision is hard to reconcile with the work of running a city with a balanced budget. In fact, it renounces that concept.

American Rescue Plan

Happily for all local governments, the Federal Government enacted a plan to rescue them. As announced by Senator Debbie Stabenow, Ann Arbor is in line to receive $24,182,630. (It will not be coming all at once, but this is a firm promise.) There are some restrictions and some suggestions. You are not to use it to pay yourself bonuses (as one Michigan county did). You are not supposed to use it to pay off debt or to cut taxes or enrich pensions. It is supposed to be used to make our communities stronger, including the repair of failing infrastructure like water utilities and roads. Most attractive is the idea of doing projects that would normally not be affordable, such as new facilities (hello, WasteWater Treatment Plant?).

Accordingly and sensibly, the Ann Arbor City Council passed (by voice vote!) a resolution (June 7, 2021) that asks the City Administrator to prepare a plan to use the money. The resolution, sponsored by CM Ali Ramlawi and CM Elizabeth Nelson, notes a number of outstanding grant requests for Federal funding and some outstanding priorities, such as infrastructure, public health, and making public facilities more resilient against environmental stresses. The Administrator is asked to bring that report to Council by October 2021.

But That was Then

It looks as though the Council will not be getting that report. In a sudden, shocking move, a majority of Council voted to terminate the City Administrator, Tom Crawford. The vote is back on the agenda for reconsideration on August 2. If the move to reconsider the resolution passes, the Council could then re-debate and revote, or it could postpone the action until a subsequent meeting. Certainly this action is proving to be controversial.

If the action stands, Council is rudderless as far as the Budget goes. It will take some months to replace Mr. Crawford, and time is not friendly in this case. Who will be steering the ship? Maritime metaphors abound. We can expect that Taylor will want to take a different tack, as he has vehemently stated this. Will this mean a direct transfer of Rescue Money to A2Zero? As noted, the request for this year and next year was $17 million. The $24 million would address that nicely.

UPDATE: Council voted to terminate Tom Crawford’s appointment as City Administrator on July 20, 2021. A subsequent motion to reconsider on August 2 failed. He has now accepted a settlement.

SECOND UPDATE: Bridge Magazine has a review (August 5, 2021) of issues surrounding the American Rescue Plan.

THIRD UPDATE: Consolidation of power over City funds is continuing with proposals of ballot measures on the November 2021 ballot.

In Deep: Ann Arbor’s Water Troubles

Posted January 1, 2021 by Vivienne Armentrout
Categories: civic finance, Sustainability

An Update, July 2021 (scroll down to see it)

 

Ann Arbor’s Plymouth Road water tower

Years of questionable use of utility fees are coming back to bite the City of Ann Arbor and millions of dollars are at stake. How will they be paid and how will this affect the affordability of our water system?

Water is necessary, not only to life, but to human civilization. It is also critical to the success of a city, both as a place of habitation and also to conduct business and industry. Many of us living in Ann Arbor have been accustomed to taking our well-run water system for granted, even though daily life would be unimaginable without it.  Now we may become more aware of the cost and complications of maintaining a water utility that provides clean drinking water and eliminates sewage, while it also exerts environmental controls in order to safeguard the health of surface waters in the Huron River watershed. We are facing a crisis that may affect the affordability and quality of our critical water system.

The Class-action Lawsuit against the City of Ann Arbor

The crisis is this: a class-action lawsuit has been brought against the City which alleges that the City has illegally overcharged the customers of the City for use of its water utilities. The monetary amounts involved are not certain, but are in the tens of millions. The lawsuit, which was filed in August 2020 via a Royal Oak law firm (Kickham Hanley PLLC) with a track record of successful class-action suits, alleges that (a.) utility customers have been overcharged for water and sewer; and (b.) the stormwater utility charges are largely unwarranted and illegal. The remedy suggested is that both the signed plaintiffs (two Ann Arbor residents) and the entire class affected (all utility customers as of six years ago) should be reimbursed, and legal charges (to the attorneys) should be paid. Typically, class-action suits like this are undertaken on a contingency basis, which means the attorneys will be paid their fee only if the suit succeeds. All members of the class (all of us users) can expect to receive a modest sum based on our overpayments. (Don’t plan any extensive vacations.)

Here are the actual court documents.

Original complaint: Hahn-v.-City-of-Ann-Arbor-Plaintiffs-Class-Action-Complaint-and-Jury-Demand

City of Ann Arbor response: City of Ann Arbor response to Hahn

Hahn amended complaint: Ann-Arbor-First-Amended-Complaint-10-29-20

Ann Arbor’s Municipal Water Utilities

Our water system is really three systems, operated mostly in isolation from each other and with a separate financing mechanism. Fees and charges are based on usage to some extent, though Ann Arbor’s fee system has gotten more and more complicated over the years. Here is the sample water bill as displayed on the City’s website.

Note that there are two types of charges for water and sewer: the Customer Charge (fixed) and an amount based on volume usage. Volumes are measured in “Centum Cubic Feet” (CCF), namely 100 cubic feet of water. (Sewer usage is based on the water usage.) The charge is calculated as (CCF x rate). Sewer usage is calculated based on the water used. (What goes in, must come out.)  The fixed customer charge is supposed to pay for administrative costs, and is levied according to the size of the water meter.

A Question of Rates

Some years ago, Ann Arbor introduced a tiered system of rates for residential water use. There are also varied rates for “water only” (irrigation) usage, and different user classes such as multifamily, commercial, etc. (A detailed description of the water fee schedule will have to wait for a different day.) Each year for more than a decade, the rates have been going up consistently, which is causing more and more comment each year. The increase each year is by a relatively modest percentage, but with compounding the rate really goes up over time.

The controversy became more pronounced with the Cost of Service (COS) study launched in 2017.  This was followed by an analysis of rates( Water and Sewer Cost of Service Study) by a consultant (Stantec). The result, as the Stantec study notes, was that costs were transferred from multifamily residential users to single-family users. A particularly high rate was assigned to users in a fourth tier which was thought to represent people who watered their lawns. This angered a number of residents. CM Jane Lumm, who represented a number of them, was instrumental in bringing in a second consultant group to review the rate structure. The Arcadis “alternative analysis”  was presented to Council in March 2019. Meanwhile, overall rates continued to increase. In June 2020, with the COVID crisis afflicting many Ann Arbor residents, CM Lumm successfully offered a resolution that delayed an increase in water rates for the remainder of the year. However, the increase will be made up after the final passage of a resolution on December 21, 2020. The water rates will now increase by 7% as of January 1, 2021 and by 6.5% as of July 1, 2021. Here is a calculation of rates that might affect most homeowners. As this shows, the cumulative rate increase is nearly 14% (13.94 %). So if you are in the third tier (not too atypical for many households), your rate for the highest tier has increased by nearly a dollar per CCF. Let’s suppose you use 20 CCF per quarter. After the two increases, your water bill will have gone up about $8.06 per quarter. (Corrected amounts)

From ORD 20-32 as amended

Stormwater, A Special Case

“Stormwater” refers to the water that enters streets and drains, ultimately finding its way to a river or tributary. It requires management for several reasons, including flooding and water pollution. Typically, pervious surfaces like lawns and wooded areas accept a fair amount of rainfall without flooding. Impervious surfaces like pavement and building structures do not absorb water, and it runs off to cause surface flooding unless captured by underground stormwater systems. The City of Ann Arbor has an extensive stormwater system. While water usage is easy to measure (we all have a meter), individual contribution to stormwater is more difficult. A stormwater rate study  (2018) by Stantec describes the system being used in some detail. It is very complex. This system has also been controversial since it was first put into place in 2007, and the scope has increased to pay for more items. It has gone from being a trivial charge for most homeowners to a substantial one.

The Point is Taxes

Taxes are the lifeblood of government. I can confidently state that this has been true from the beginning of recorded history. Although possibly not recorded, it has also always been true that the people governed would rather avoid them. Yet, we also generally recognize the importance and utility of government. So there is always a tension, or if you like, a negotiation, between the taxing entity and the taxed.

Here in Michigan, as in many other locations, the tax revolt led by California’s Proposition 13 (1978) resulted in an amendment to the Michigan Constitution (the Headlee Amendment [1978]) that limited taxation by local governments. The intent was to protect citizens from new taxes unless they voted for them. It has several sections but the take-home message is: no new taxes without a vote!  This has severely limited municipalities (cities, townships, counties) in Michigan because the only available source of new revenue has been voter-approved property tax millages.

But municipalities also offer services that can legally be supported by fees. A fee is not considered a tax. It is simply the price of receiving the service. It is not, however, supposed to exceed the cost of providing the service. When is a fee a tax? When it is meant as a revenue source, not merely a compensation for the service. This distinction became very important in what is widely referred to as the “Bolt Decision” (a ruling by the Supreme Court of Michigan in the lawsuit, Bolt vs. City of Lansing). There are summaries of this many places but it is worth reading the actual decision because there are some subtleties.  Here is the essence:

  • A fee should serve a regulatory purpose, not a revenue-raising purpose. (This is a little hard to explain. It basically means that the fee is simply the price of using the service.)
  • A fee is voluntary. The user of the service should be able to choose the degree to which they use it. A good example would be that if you don’t want to pay for water, you shut off a lot of taps.
  • A fee should be proportionate to the cost of providing the service. (This is how the “Cost of Service” study gets born.)

The Court’s decision also addresses the question of whether the fee collected benefits the user directly.  Here is a direct quote:

The revenue to be derived from the charge is clearly in excess of the direct and indirect costs of actually using the storm water system over the next thirty years and, being thus disproportionate to the costs of the services provided and the benefits rendered, constitutes a tax.

So why is the distinction between a fee or a tax so important? Because in Michigan, because of the Headlee Amendment, a municipality must obtain the consent of the voters in order to impose a tax.

Arguments to Come

To date, the original complaint and an amended complaint with more detail have been filed. They have many separate instances and arguments to support the claim that Ann Arbor residents and users of the utility system have been overcharged. The City has filed an initial response, most of which is simply a denial of the allegations. The defense of the suit will involve a very fine dissection of many details of the rate structure and of the use the funds have been put to. A critical question is whether the City has been collecting water fees as a source of revenue (to use for purposes other than providing the service).

On December 21, 2020, the same day on which they authorized higher water rates, the Council approved an amendment that increased fees to an outside law firm to defend the City against this lawsuit. They authorized paying it from the water fund.

Next Chapter: an Update

July, 2021: Progress on the lawsuit seems to have stalled out. The plaintiff’s motion to proceed in a class action lawsuit (request for class certification) was denied by Judge Archie Brown on 5/20/2021, and a motion for reconsideration was denied on 7/12/2021. Meanwhile, the Judge also denied (on 5/27/2021) a request to file a Second Amended Complaint.

As noted, Council approved a fee to an outside law firm to defend the suit. Here is the City’s response to the motion for recertification. As you may note, it includes extensive documentation, including material from other lawsuits against municipalities.

City’s Response to Motion for Class Certification

It is not clear where the plaintiffs will go from here. Filing this lawsuit under any condition other than as a class action would not be remunerative.

In our opinion, a fatal flaw in the lawsuit was the emphasis on water fund reserves. The City’s response made a number of pithy comments about this claim. They showed figures to indicate that “the reserves are insufficient, not excessive”.

The plaintiffs chose the wrong hill to die on. Their case could have been very strong if they had confined themselves to the stormwater “fees” (they are, in fact, a tax, as could easily be shown). Class-action lawsuits based on Bolt against a number of other Michigan municipalities have been successful. Jack Eaton, a former Ann Arbor Councilmember who is an attorney, has been following these issues for some time. This is a summary of recent Michigan court cases relevant to the Bolt Decision which he wrote. The summary is worth reading in its (short) entirety, but these are the significant conclusions. Quoting here:

On December 11, 2020, the Michigan Supreme Court issued an order that may impact the current lawsuit against the City of Ann Arbor. The Supreme Court order was short, just one paragraph, but it vacated a Court of Appeals decision that had given some hope to municipalities whose utility charges were being challenged. The Court of Appeals had ruled in the combined case of Binns v Detroit and DAART (Detroit Alliance Against the Rain Tax) v Detroit that the City of Detroit’s drainage charge was a fee rather than a tax under the analysis of the Michigan Supreme Court in Bolt v City of Lansing, 459 Mich 152 (1998).

…Some believed that the Binns and DAART cases provided the Supreme Court a chance to address the impact of the Bolt decision with the hope that the Supreme Court might modify its approach to the fee versus tax analysis. The order vacating the Court of Appeals opinion made clear that the Supreme Court maintains its original approach.

Proportionality

One of the issues discussed in the summary cited here is the issue of proportionality. Are the fees assessed equitably across all parties? Taxes can be levied so that some parties receive a more favorable treatment than others, but fees are supposed to be assessed on the basis of cost of delivery of the service, and should be equally shared by all users. The Ann Arbor stormwater fee system is highly nonproportional. For most individually owned homes, an image obtained by infrared photography is used to declare a certain area to be impervious.  Here is the proposed image-to-impervious area relation as shown by the consultant (PhotoScience Geospatial Solutions). In their presentation to a professional group (2013), they state: “Area is directly related to runoff from a parcel”.  But rather than basing the fee directly on the impervious area, they have proposed a tiered system.

The system for commercial buildings and developments is much more nuanced and complex. Here UDC on stormwater rates are the definitions and provisions as shown in the Unified Development Code of the City of Ann Arbor. These properties are able to reduce charges by demonstrating performance (actual diversion of stormwater). But the homeowner rate structure has no such provisions, short of very minimal credits for rain barrels and rain gardens. Many homeowners in Ann Arbor will tell you how they have carefully placed drainspouts to carry water into lawn areas rather than the street, etc. In fact, impervious area as determined by remote sensing is not a direct measure of stormwater discharge, a core assumption. While water usage is measured by meter readings, these images do not actually predict how much water will be discharged from an individual property. This needs to be measured by direct assessment. Such an assessment is not available to owners of individual houses.

Another defect of this system in terms of proportionality is the tiered system itself. Here are the actual current rates.

 

Note that a taxpayer will be charged the same amount whether at the very bottom (for example, 2,187 SF) or top of a tier (4,175 SF). Further, since these figures are based on an image made at some elevation, it is likely that the resolution is not perfect. It would be perfectly possible to have a reading of [2, 187] instead of [2, 186], which would mean an additional quarterly sum of nearly $25 is due. This is hardly proportionate.

The complaint in Hahn vs. Ann Arbor does address stormwater fees and rightly challenges their use to pay for certain items. But the heavy emphasis on water rates and water customers has hampered their case. We noted that one of the City’s defenses is that they do not actually know who they have billed to over the years. (People come and go, students move in and out, etc.) Property ownership is surely more easily traceable, even historically.

Will the lawsuit be reconfigured, resubmitted, appealed, or dropped? Only time will tell. But there is a good case waiting here for someone to pursue.