Local in Ann Arbor

Making law – i.e., legislation – is often compared to making sausage.  But Thursday’s council meeting (August 6) was more like watching a troupe of magician/jugglers.  You know, the ones who start with a single person juggling little red balls.  Another strolls up with some green balls and pretty soon they are juggling each others’ balls – until another one brings in juggling clubs.  A fourth runs in and starts juggling knives, which then get mixed in with the balls and clubs until suddenly they all clap their hands and a flock of doves flies up into the rafters.

A number of things happened at the meeting, but it was really City Place that took center stage (and all the balls).  Councilmember Anglin started the action with his motion at the last meeting to institute a moratorium on development requiring site plans in the R4C and R2A zoning districts.  It was postponed to this meeting. As CM Anglin made clear, the moratorium was intended to protect the Germantown neighborhood against the immediate threat of a City Place development, though it would apply to all such zoning districts throughout the city.  (See the Zoning Activity Map.) Body language among the other CM was not immediately negative, and CM Christopher Taylor suggested a number of amendments, clearly not anticipated by CM Anglin.  The first two appeared to strengthen the moratorium, by extending its length to a full year (from 180 days), and by restricting it to the neighborhoods around the downtown core (thus eliminating possible unforeseen problems with outlying districts not involved in the Central Area Plan issue).  Anglin accepted those as friendly.  But the next was more problematical.  It excluded PUD projects from the moratorium.   Now, this would undo the practical effect of the moratorium with regard to City Place, since last meeting’s action was to shelve the “by right”, or, as councilmembers are now referring to it, “by law” R4C-based site plan in favor of resurrecting a PUD (a public meeting is scheduled on August 12). The Germantown Neighborhood had argued in various email discussions against permitting such an exception to a moratorium, given that a PUD is proposed in regard to the underlying zoning.  But councilmembers argued to the contrary, saying that changes to R4C zoning districts that may be suggested by a study committee (appointed by council later in this same meeting) would not affect a future PUD.  Though CM Anglin argued strenuously against exempting PUDs on the basis that they can radically and negatively change a neighborhood, CM Rapundalo spoke sharply in response, stating that the council would not be doing its job if it allowed a site plan with such negative effects to pass.  CM Briere, speaking sympathetically of the frustrations of the neighborhood, nevertheless stated that the council does have the prerogative to examine PUD proposals carefully and make decisions on the basis of evidence presented.  CM Hohnke, whose history has not been in opposition to the City Place project, stated that including PUDs in the moratorium could have a downside  in weakening the general use of PUDs to provide a benefit to the community.  Finally, the Mayor pointed out that exactly the same PUD could be passed the day after the zoning was changed, so no real effect would be attained by holding a PUD till after the committee’s review. The amendment passed, with only CM Anglin voting against it.

So far, the effect was that a future City Place PUD could be entertained by the council, but a development based on the City Place site plan (postponed but with permission to the developer to bring it back at any time with 35 days notice) would be barred during the period of the moratorium.  But now CM Taylor brought a second amendment: to exclude from the moratorium all current plans for the area under review, including the Moravian PUD, the Casa Dominicks’ PUD, and the City Place R4C site plan.  CM Anglin was clearly stunned at this complete evisceration of his original motion.  CM Hohnke allowed as how this (moratorium) was not the appropriate tool to protect the area, since it did not include protection against demolition. CM Rapundalo summed up the argument for the amendment, saying that there were property rights and constitutional issues with a moratorium clearly designed to stop development.  “We have sworn to uphold the law.”  He noted that the moratorium as originally designed could send a chilling message as to whether Ann Arbor is open even to development of a “reasonable” kind.  “Stopping good development is not what we want to do.”  The amendment passed, again with all but CM Anglin voting for it.

So now – on to the main motion, which at this point would impose a moratorium on new site plans only in the near-downtown area, but exclude all the currently proposed projects and any future PUD proposals. CM Smith and CM Derezinski, who seem to be auditioning for the role of the Development Duo, both argued strenuously against even the idea of any moratorium.  CM Derezinski, noting that he had been “querulous” about the idea in the past, called the very notion “dangerous”, raising the issues of a “taking” (the concept that government strips property or its fair value or use from a citizen without due process or reimbursement), and also the issue of liability for the city, arguing that the question of a moratorium’s validity could be settled in court.  He concluded that the amendments were putting “lipstick on a pig – but it’s still a pig”.  CM Smith stated that the moratorium meant the city was “not interested in new ideas coming forward”.  CM Anglin stated that as amended, he didn’t support the thing (not his word) either.  CM Taylor argued that there were still benefits to holding future development until the R4C committee revised the zoning district.  But the motion failed, with Taylor the only yes vote.  The R4C moratorium is finally dead, with numerous wounds to its heart.  The balls appear poised to fall to the ground.

But Tuesday’s electoral results seem to have had some effect. The Council Party can evidently read a troublesome mood abroad in the land.  A new item has appeared on the council agenda. Suddenly,  a study committee for a historic district in the Germantown area is proposed by CM Hohnke and CM Higgins. Hohnke rather disingenuously stated that “we began a process some months ago” (it was, as CM Anglin rather sourly noted, on December 15, 2008, at which time Hohnke voted against a study committee) and that he wanted to support the neighborhood’s concern about historic preservation.  Discussion revealed that the district described in the resolution is extremely small and limited to parts of  South Fourth and South Fifth Avenues:

“the study area to be examined by this committee be the area encompassing properties that abut the east and west sides of South Fourth Avenue and South Fifth Avenue, bounded by the East William Historic District on the north, and Packard Street on the south, and also including 209, 215, and 219 Packard Street”

In public comment prior to the meeting, a protest was lodged that this area (which coincidentally just encompasses the City Place area, with a little margin to spare) was too small, and should extend to Madison (which would, notably, take in the Moravian PUD proposal).  However, it was noted by councilmembers that a study committee would have the authority to recommend an expansion of the district. (Final decision is up to the Council.)  Also, the strong point was that within this smaller area, demolition will be prohibited:

“City Council declares an emergency moratorium on any demolition in the proposed South Fourth and Fifth Avenues historic district, consistent with Chapter 103, Section 8:411 of Ann Arbor City Code, for six months from the date of this resolution”

As was pointed out in discussion, without this provision and even had the R4C moratorium passed in its original form, the developer of City Place could at any time have taken out a demolition permit (process time is about two weeks) and razed the historic buildings in question.

Rather ingenuously, CM Hohnke spoke to his resolution as being necessary in light of the moratorium resolution and apparently felt it necessary to defend himself against any anti-development taint from bringing it. He noted many other opportunities to increase density in the downtown, including the Library Lot, the old Y lot, the Palio lot, but now stated that south of William Street density is not required or perhaps desirable.  CM Derezinski, stating that he had not had time to look at this proposal (CM Greden said he had first seen it at 7:15, after the meeting had started; apparently he was looking at his laptop), moved to postpone till the next meeting, August 17.  But in discussion, it was apparent that demolition could occur within the two-week interval (Assistant City Attorney Kevin McDonald verified that no site permit, etc. is required to demolish buildings).  The postponement failed, with only CM Smith, CM Derezinski, CM Rapundalo and CM Greden voting for it.

Now the Development Duo tried hard to defeat this upstart resolution.  CM Smith argued that it was punitive for this one project.  She said it wasn’t fair to change rules in midstream.  If this developer is to ever build another project in the City of Ann Arbor, the next one will be less affordable, less sustainable.  CM Derezinski echoed her points, saying that it was a bad message that wreaked havoc on the predictability of the law.  Expanding her discussion, CM Smith erroneously said that Planning Commission had approved the City Place site plan (staff and several councilmembers immediately corrected her; it was defeated in Planning Commission) and that staff had “approved” it (she was again corrected; staff recommended against it).  The main argument for both was that this was using the law as a bludgeon, unfairly coercing the developer and violating due process and property rights, and also sends a message that Ann Arbor is unfriendly to developers by making the process arbitrary and unpredictable.

But CM Taylor, speaking with the authoritative voice of a practicing attorney, stated that this decision (the historic district study committee) was “in congruence with”  powers and authority of the Council; “this is within our arsenal of options” and thus was “congruent with predictability”.  On questioning, Assistant City Attorney McDonald reaffirmed that all plan review (for a PUD, for example) can proceed unimpeded during this six-month moratorium, though demolition could not occur.

Finally, Mayor Hieftje (who really should have been wearing the costume of Sarastro near the end of the Magic Flute) made a remarkable speech.  The following is a shortened paraphrase based on my inadequate speed-writing skills.

We should recognize some things and speak frankly.  This project has been before us for many months, with (a couple of ) PUD proposals refused approval by the Planning Commission and this body.  We then considered a “by-right” or “by-law” proposal that has been described by many as a plan the developer doesn’t want to build but was designed as a lever to obtain approval of the original plan…  The developer is using every available legal tool in his chest of tools to do what the city doesn’t want – what the neighborhood doesn’t want.  It’s logical that we would use the tools that are available to us.

The proposal passed, with only CM Smith and CM Derezinski voting against it.

Cue the doves.

UPDATE: As reported by the Ann Arbor Chronicle, Council amended the moratorium resolution at its August 17 meeting.  New language was added to clarify:

“RESOLVED, That the City Council declares an emergency moratorium on all construction, addition, alteration, repair, moving, excavation or demolition in the proposed South Fourth and Fifth Avenue Historic District, consistent with Chapter 103 Section 8:411 of Ann Arbor City Code for six months from August 6, 2009.”

The new language passed with CM Smith and CM Derezinski dissenting.

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