Arbor Update

What the heck is “Student Housing” zoning? Is that a special zoning for dorms and fraternities/sororities?

The UMICH housing site defines it as fraternities, sororities, and coops, but it must also include duplexes, the less-intense use.

Here is more about the rezoning on Cambridge.

1620 Cambridge is one of the Greek houses in the Washtenaw area. (The newest one, the Evans Scholars Scholarship House for former golf caddies is on the AA Women’s City Club Home Tour ; it was designed to look like some of the older frats. 1620 Cambridge is one of the older ones and it’s a block away.)

The owner told the planning commission that he doesn’t have final plans but it looks like this house of 56 student units will be torn down to build McMansions.

Crossing my fingers for a picture of 1620 Cambridge:

But really what’s the point of the re-zoning? It would seem that the owner could certainly tear down the large building and construct 3 duplexes on each of the three lots even with the existing zoning (the current zoning doesn’t forbid two-family duplexes). And once that was done, what difference would it make if the land could possibly be used for student housing?

RE: Lowertown historic district-

“the council delayed action after it received a report from the state’s Historic Preservation Office that raised about a dozen concerns with the city’s historic district ordinance.”

Anyone know if this document is available (preferably online)?

“Chris Easthope, D-5th Ward, asked the city attorney’s office to research whether the city can impose a prohibition on demolition of historic houses until the issue is decided.”

The municipal code says council can impose a moratorium for max 180 days if there is “a substantial danger of irreparable harm to buildings recommended for historic designation.” However, it sounds like 180 days may not be long enough to resolve the issues with the state. I also don’t know if there is any looming substantial danger of irreparable harm in this area.

“There are 209 “resources’’ (historic properties or structures) within the proposed district, including 206 buildings. There are 36 “noncontributing’’ properties”

The report by the study committee has different numbers:
261 resources, 247 of which are buildings
164 of the builidings are considered historic resources
75 buildings are non-historic resources
(last updated 10/11/2005)

I don’t know much about the process so far. Could someone in the know provide a little history on what initiated the study and why it has been shelved since 2003?

I loved this bit from the AA News yesterday:

“Briere said the formation of historic districts should not be left up to the people who live in them.”

“You do not ask people living in districts to vote on it,” Briere said. “Because people who live in that area are changeable. We move in. We move out.”

Uh, Ms. Briere, the people in Ann Arbor (and Washtenaw County, and the State of Michigan) are likewise changeable. They move in and move out. They’re born and they die. So we certainly shouldn’t let any of those ‘temporary’ people vote on things of importance. What are needed, instead, are politically powerful and connected ‘philosopher queens’ like Briere to impose such decisions over the objections of the people who are affected. Nice.

Things are getting really slimy on this issue. On Sunday evening, Sabra (my wife) went to Council Caucus and was told that the City Attorney’s office had issued a secret memo saying that all of our historic districts are invalid. On Monday, citing section 5.2 of the City Charter, which says all written City Attorney opinions must be filed with the Clerk’s office, Sabra requested a copy. The City Attorney, circling the wagons, refused.

Yesterday, Sabra received hard copy of the nine-page letter from the State Historic Preservation Officer. The letter, sent to Donna Johnson of the City staff, was dated – get this – March 21!!

Nobody on either the Lower Town Historic District Study Committee or on the City’s Historic District Commission was aware of this letter. The City staff sat on this letter instead of telling the relevant City bodies about it.

Did someone mention transparency in government?

Don’t you mean “double super-secret” memo?

Ahhh, David, time for another reality check. Written “opinions” of the City Attorney are like written opinions of the Attorney General. They are the legal officer’s official statement of opinion on an issue. That’s very different than an attorney-client privileged memo.

It’s outrageous for you to argue that privileged memos should be filed with the City Clerk and accessible to the public—thereby waiving the privilege. You call yourself a lawyer?

PJ, whether or not this particular “document” – to use a neutral term – is privileged or not is governed by the Charter. The Charter abolishes the privilege for certain types of documents which are written opinions. The document in question is in writing. It also is an opinion on the legality of a city ordinance. Such an opinion is expressly authorized under Section 5.2(a)(3) of the Charter, which states in pertinent part: “The Attorney shall review all ordinances…and shall promptly give an opinion as to the legality thereof.”

So, the document is a written opinion as the term is commonly understood. It is not just a casual memo dashed on some minor matter.

In November, 2005, I called the Clerk’s Office and asked if they had received an opinion on another matter. I was told by a staff person who said she had worked there for many years that their office had never received any written opinions from the City Attorney’s office!

The status of City Attorney’s opinions is different from the status of an Attorney General’s opinion. AG’s opinions are binding on all state employees. City Attorney’s opinions are binding on no one.

Even if the City Attorney doesn’t have to release his opinion saying that all historic districts are invalid, why wouldn’t he do so anyway? This is a matter of great public interest. Are people supposed to be left in limbo?

At Sunday’s caucus, Sabra asked if, assuming she were a resident of the Old West Side Historic District, she could sue the City. Chris Easthope said “yes”. So you cn see how significant this issue is.

”... Sabra asked if, assuming she were a resident of the Old West Side Historic District, she could sue the City. Chris Easthope said “yes”.”

HD doesn’t stand for Historic District, but I’m a resident of the OWSHD. So apparently I could sue the City … but over what exactly? Is the idea that Ann Arbor’s Historic District are somehow not up to legal snuff, and therefore as a resident I can appeal to the courts for some sort of relief? Would that relief come in the form of a properly codified Historic District, or cash?

The Council members at the caucus didn’t elaborate on the secret opinion. Let me guess, though, that if the Attorney’s opinion says that all of the existing historic districts are completely invalid, then any OWSHD resident could sue to enjoin the City from enforcing any of the restrictions in the historic district.

If there were such a suit, then the City Council would have to decide whether or not to support the Attorney’s opinion, essentially “rolling over”, or to tell the Attorney to defend against the suit, regardless of his opinion.

This situation is particularly upsetting because no one outside City Hall knows what the opinion says. But you can bet that the pro-development forces in the City government are rubbing their little hands in glee over the opinion.

The double super-secret opinion, you mean.

Another possibility is that City staff might stop enforcing part or all of the OWSHD rules, even if some homeowner doesn’t sue the City.

Gosh, David, it’s not just the “pro-development forces in the City government” (your relentless, and ridiculous, moniker) who would cheer the demise of historic district designations in Ann Arbor.

I live in the first ward; I am damned close to being your neighbor, in fact. And I hate – repeat, HATE – the idea of having our neighborhood become a historic district. I find the idea to be an elitist, unnecessary, overbearing intrusion: a supercilious mandate that will do nothing but help the self-righteous pat themselves on the back, meanwhile encouraging the further neglect of already-dilapidated properties and costing other (responsible) homeowners lots of money and even more headaches as they are forced to succumb to the tyrannical bureaucracy of HDC review and approval if they so much want to install energy-efficient windows. When choosing the location of my home, I deliberately stayed AWAY from historic districts for that precise reason.

Look, if someone wants to maintain their house in a manner consistent with the historic “feel” (which is what, exactly? as arbitrated by whom?) or include period details (lots of which have been improved upon for good reason, by the way), good for them. But if you want to tear down that nasty old shack, hey – it’s your old shack. I don’t care if Nathaniel Zacharia Hogsworthy, the purveyor of the first iron widget store in Ann Arbor! did used to live there. It doesn’t change the fact that YOU live there now, and you ought to be able to choose your own front door.

While we’re on the topic, the State’s opinion that Ann Arbor’s historic districts designations were made improperly, and are therefore indefensible in court, has been public for several years. I learned about it by placing a simple phone call to the City, so doesn’t that mean that it’s, um, no secret? Either internally or externally, super-duper-double-secret-mission-impossible-memo notwithstanding?

Also, I’ll just say it and then log off: The fact that the historic district commission has so much power is a total disgrace that has set back this City years.

1st warder—Amen.

David—Anytime an attorney provides legal advice in writing to his/her client, the attorney is providing a “written opinion.” You argue that the attorney-client privilege has been abolished for all written opinions from the City Attorney to the Council. Therefore, by your twisted logic, the City Attorney can no longer provide privileged written opinions to the Council. That means all written opinions to the Council about whether to settle a lawsuit, or how to negotiate a labor contact, are now public record. Yet another absurd Cahill theory.

If you think I’m wrong and you’re right, prove it: sue the City to demand the written “opinion.” You’ll lose. And we’ll all have a good laugh at your expense when you do.

Now that I’ve vented, I’m going to get smart and follow the lead of the smart people on AU: I’m going to ignore you.

‘historic districts’, in general, suck rotten eggs. however, an ‘historic structure’ (agreed to by the current occupants!) is a GoodThing™. i’d even support the opportunity for ‘current occupants’ to specifically petition the city for such designation. but, dictatorial wand-waving MUST be prohibited.

David Cahill,

Would you be so kind as to summarize the points of the letter from the State Preservation Historic Officer. I’m still not clear on what they don’t like about Ann Arbor historic districts.

We’ll just have to see how this plays out, PJ. I expect further action. Three Council candidates (Suarez, Ralph, and Schmerl) seem to care about transparency in government. Maybe political pressure alone will free up the opinion.

Scott, I’m in a quandary about the letter from the State Historic Preservation Officer. There is one-page cover letter, plus a seven-page single-spaced list of “staff comments”. The comments look like they are in ten-point type. Historic districts are not my issue; I just got sucked into this because historic districts are indeed Sabra’s issue. 8-)

Sabra has a scanner, but I’m not sure this material would scan well. If we do produce an electronic copy, what is the bestway of getting it onto Arbor Update?

If you want a copy of the letter quickly, the best thing to do would be to either ask your friendly local Council member for a copy, or call Donna Johnson in the Building Department, to whom the letter was addressed, and ask for a copy.

The letter itself is public. The City Attorney’s opinion, which apparently interprets and evaluates the letter, is not.

David: oh, I didn’t realize it “wasn’t your issue.” Please forward my comments regarding the snobbish idiocy of historic districts to your wife, then.

And 8-) right back atcha.

I for one am very skeptical that there is any genuine legal problem here. It sounds like a political problem.

The Ann Arbor historic district ordinances predate the state enabling law, but they were retroactively legalized by that law. Many details of the city ordinances were different from what the state law provided, but those were not generally considered to be any legal issue.

Nonetheless, since then, there have been several rounds of revisions to the Ann Arbor ordinances to bring them closer into line with the state law. Unless the state law has changed again (possible, but I hadn’t heard anything), I don’t see how there could be some new legal problem.

The biggest PRACTICAL problem with the Ann Arbor historic district ordinances is the lack of consistency between districts.

Most other cities have one single historic district ordinance that applies to all districts. Ann Arbor has a separate ordinance for each district.

Instead of one consistent set of rules, there are a dozen different sets depending on which district a property is located in and what ordinance it comes under.

In some cases the HDC has greater or lesser authority to review certain types of changes, and these differences are insanely complicated, maddening not only for property owners and developers but for the HDC and city staff.

Those rules were individually negotiated when each district was adopted, and are generally regarded as politically untouchable. Making the rules the same everywhere would reduce the HDC’s authority in some places, increase it in others, and neighborhood folks are probably opposed to both types of changes.

Nonetheless, as a matter of urban policy, historic preservation, and efficient use of scarce city resources, the city would benefit from having a more uniform set of rules across all districts. Any differences in regulation should be rationally based on the intrinsic differences between districts.

Isn’t this reform what Calthorpe called for?

Yep.

Donna Johnson is the City staff person in charge of the Lower Town Historic District project. Last Monday, her assistant told one of the Study Committee members that the vote was being postponed until September to get it past the primaries.

Now that’s slimy!

OMG! Politicians being…political? Get Tom Gantert on the phone for another hack job! I want an article about lunch with 2 nobodies and a former HDC member.

This works in your favor, David. Opposition within the proposed district is far stronger than support, which is a growing sentiment citywide. Voting FOR the district now would have serious political repercussions.

I think you’ve got it backwards, Dale. My sense is that most of Council would really like to vote against the proposed district, but is afraid to before the primaries because a “no” vote would be used against them. It would be one more example of Council’s pro-development agenda – an agenda which is not shared by the single family homeowners who dominate primaries. Remember Vivienne Armentrout’s article in last December’s Observer, “Our Town versus Big City”? She pointed out that the voters have never voted in favor of development.

I could easily be wrong, of course. Time will tell.

Oops – as much as I appreciate the plug, David’s quote from my article is not accurate. I don’t personally recall an unambiguous vote for or against development (unless you count the greenbelt millage, which has been interpreted as a vote for development by some). Here is perhaps the most relevant paragraph: “The awkward political dynamic for many council members over the last twenty years is that a lot of the voters they depend on for political support are neighborhood and parks advocates whose views they do not share. Most Democratic council representatives have been affordable-housing advocates, and Republicans have been business and development supporters. But the Ann Arbor public has consistently voted for quality of life.”

I think there is plenty of room for discussion about how this generalization could be applied (or not) to the current council, and lots of historical detail behind the statement that could be analyzed, but I don’t intend to participate, just to set the record straight on what the article actually said.

Yes, that’s the paragraph I had in mind. My guess is that the neighborhood and parks advocates whose views the incumbents do not share are going to dominate the primary electorate this August. There are certainly a lot more neighborhood/parks folks than there are architects, developers, and others whose careers depend on new construction.

I just talked with a friend of Sabra’s. He called Donna Johnson on Friday. He said he had heard on a local blog that there was a letter from the state that said that our historic district ordinances were in conflict with the state law, and therefore were invalid and illegal.

Donna said that was not true, that the letter only contained suggestions from the state. The state is only acting in an advisory capacity, and its suggestions were not legally binding.

She said it would take an actual complaint from someone affected by the law for action to be taken by the state. She said, for example, that suppose I live in the Old West Side. I am a homeowner, and would like to do something to my house, and I am denied by the City because of our regulations, and our regulations are in conflict with the state, then something might happen. But it would take some kind of a trial.

Donna said she hoped Sabra’s friend would do his part to get the word out that these are malicious rumors being spread by people with their own political motivations.

Sabra’s friend asked for a copy of the letter. Donna said he could not have a copy right now, because things were so up in the air.

I haven’t seen the letter from the state, but as I understand it, most of the issues have to do with limits on the authority of the HDC in the older Ann Arbor ordinances, such as the Old Fourth Ward. In other words, the state is saying, in certain districts, Ann Arbor gives too little authority to the HDC.

I don’t believe any of this goes to the validity of the ordinance, but rather, to the Certified Local Government (CLG) status on which tax breaks and state funding depend.

Should the city lose CLG status, then owners of historic property wouldn’t be able to get tax credits for renovation based on Ann Arbor designation alone. They would have to seek listing on the National Register of Historic Places, or perhaps the state register, in order to be eligible for the tax credits.

Very much contrary to local conventional wisdom, Ann Arbor’s historic district commission and ordinances are very permissive and lenient in what changes are allowed, compared to other cities, for example, Ypsilanti.

“On Sunday evening, Sabra (my wife) went to Council Caucus and was told that the City Attorney’s office had issued a secret memo saying that all of our historic districts are invalid.”

You are the one spreading the rumor, David.

Nice try, Dale. 8-)

The people spreading the “rumor” are Kevin McDonald and some City Council members.

I have no idea why Kevin made up his theory about invalidity, since Donna is the staff person in charge and didn’t believe it. But apparently he is the source of the infection.

So if Ann Arbor’s set-up doesn’t qualify and a resident gets a tax credit does that mean that people who have are held responsible by the department of Treasurer? Does the state Historic Commission let DOT know which cities are out of compliance? What happens next year if someone tries to take the credit with this knowledge coming to light now?
If I can’t get the tax credit because the city is out of compliance then can’t I do whatever I renovate my house any way I want? These are my questions.

I have reviewed the manual governing Certified Local Governments (CLGs) on line. Ann Arbor is presently a CLG. As long as it remains a CLG, tax breaks, et al., remain in place. There is a process for *de*certification, but it takes forever and winds up with the US Secretary of Interior!

Yes, if AA ever is decertified, the State Historic Preservation Office will certainly let the City know.

The process the state began by its now-infamous letter of March 21 is for continuing Ann Arbor’s certification. That process itself is lengthy, and can’t be finished by September.

So Kevin McDonald should not have told Council in his secret opinion that our districts are presently invalid based on the March 21 letter. He is just wrong.

But if a homeowner challenged Ann Arbor’s CLG in court, would and injunctions be issued and how long would such a process take? Could a homeowner say to the court I want to build a front porch and seek an injunction against the historic commission from having say under the scenario that by the time the tax credit is taken (2007) their is the possibility that the city would loose it’s status and jeopardize the tax credit? Would a court issue a case by case injunction or an injunction against the historic district commission from any oversight?

The overall validity of the ordinance and the city’s CLG status are unrelated. I’m sure there are cities out there that don’t have CLG status, yet their historic district ordinances are perfectly valid.

Historic district ordinances started in the 1930s with Charleston and the French Quarter of New Orleans. CLG status came about in the 1980s under amendments to the National Historic Preservation Act.

Yes, but, contrapositively (?), if you do have CLG status, then your ordinance is valid.

Airtight logical validity?

I guessed right on “contrapositively”! God, I’m good! 8-)

“I guessed right on “contrapositively”!”

Alas, no—the statement that Larry was asserting the existance of counterexamples to was the statement that lack of CGL status implies lack of ordinance validity. The statement that CLG status implies ordinance validity is the inverse, not the contrapositive. (But why is it true, anyway?)

It’s true because in order to become a Certified Local Government (CLG), the State must determine that your ordinance is valid as part of the certification process.

“It’s true because in order to become a Certified Local Government (CLG), the State must determine that your ordinance is valid as part of the certification process.”

The relevant ordinances didn’t actually all exist at the time of certification, did they? There seem to be a bunch of ordinances for the various districts.

Recertification happens every three to four years. According to the link you posted, the most recent ordinance was adopted in 1992. So all the present ordinances were in place during the last two or three recertifications.

“Recertification happens every three to four years.”

I see, thanks.

(local historic preservation information from michigan.gov seems to have more details).

So the state law changed in 1992 and we had several successful certifications without our current ordinances and now we have problems with our ordinances. What happened?
a. poor oversight in the past
b. payoff to state officials for certification
c. change of interpretation of state law

d. The City Attorney’s lack of understanding of what being a Certified Local Government means, resulting in an incorrect opinion about the validity of our present ordinances. Since his opinion is secret, for all we know he may not have even realized that CLG status exists or what it means.

I talked with Stephen Postema about this issue at yesterday evening’s Bar dinner. He said he disagreed with the argument that he had a duty to file anything with the Clerk’s office, saying that he would file something “only if asked”, and that he had never been asked. He refused to take a position on what the City Charter language about filing all written opinions with the Clerk meant.

He said that the City’s new historic preservation staff person was working “full time” on revising our ordinances. He said he was spending a lot of time defending the legality of our ordinances against an appeal by the Glen-Ann developers.

I asked him if any local historic district ordinance anywhere in the state had ever been found to be invalid by any court or otherwise.

He said “no”.

As an FYI, the two Glen-Ann houses now appear to be unoccupied and there is a chain link fence up around the gas station and two houses.

Not a nice move by Freed in response to some nasty politics in the community. A bad show all around.

Anybody in the know—when’s the next council meeting? It should be tonight by my count (or last night, rather) but no agenda is on the Web; same for planning. What the dilio?

As every schoolchild knows, the next Council meeting is next Monday, June 5.

Right you are—I always think of the meetings as “every two weeks” rather than “1st and 3rd Mondays.”

Check out item D-28 on the June 5 agenda. It is a very cautiously-worded resolution directing that the staff publish a “notice of intent” to issue the bonds for this project. The resolution points out that there are a variety of conditions yet to be satisfied before the bonds can be issued.

Curiously, the notice of intent itself doesn’t mention any of the conditions. I hope that, if Council later decides that these conditions have not been met, the developer can’t argue that the unconditional notice means that the City has to issue the bonds.

I’ve mentioned this problem to Stephen Postema.

Oop! Wrong article.

Update about Lower Town on Metro Mode:

Particularly interesting is: “The agreement restructures the affordable housing requirement and eliminates a costly credit enhancement fee.”

Anyone know what that actually means?