Arbor Update

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Suing about e-mailing about parking?

16. May 2009 • Murph
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The Great Lakes Environmental Law Center may file suit against the City of Ann Arbor to stop construction of the proposed underground parking structure on South Fifth Ave. A letter from Prof. Noah Hall, Ann Arbor resident and executive director of the Center, identifies potential grounds for a challenge:

  1. The proposed parking structure may violate the Michigan Environmental Protection Act (MEPA) – “The construction and operation of the proposed new parking structure and the additional [vehicle miles traveled] that it will cause are “likely to pollute, impair, or destroy” the environment, and thus are not lawful under the MEPA unless “there is no feasible and prudent alternative.” The City of Ann Arbor has numerous feasible and prudent alternatives to the proposed new parking structure . . . detailed by Nelson/Nygaard Consulting Associates in the Ann Arbor Downtown Parking Study [2007]”
  2. The City Council may have violated the Open Meetings Act by conducting private e-mail conversation during a meeting in parallel to the open discussion of the issue – “During the City Council meeting on February 17, 2009 at which the proposed new parking structure and bonding was approved, several City Council members exchanged numerous email messages discussing whether they supported postponement and why other City Council members supported or opposed postponement. . . . This electronic discussion was made during the public portion of the City Council’s meeting, potentially violating the Michigan Open Meetings Act.”
  3. These e-mails were not produced during a Freedom of Information Act request by the Center for, “all e-mail communications and other records made by City Council members before, during, and after” the Council meeting. “It was only through a subsequent Freedom of Information Act request for documents not related to the proposed parking structure that the City Council members’ email messages and discussion regarding postponement were discovered.”

Additional information is available via the Ann Arbor News and Ann Arbor Chronicle. The Chronicle additionally has the full text of Hall’s letter (pdf), from which I’ve excerpted above, and notes that Hall has loaned them ~1,000 pages of documents produced in the FOIA requests, which the Chronicle hopes to have scanned and posted soon.

Some discussion has been provided on AU already, on the 2009 City Council Elections thread. On the Chronicle article, AU reader (and attorney) David Cahill provides the opinion that Hall’s letter “is not marred by the citation of any legal cases supporting his claim,” as well as opining that such a suit would be “frivolous”, and lead to a slippery slope allowing any construction whatsoever to be blocked by similar arguments.

  1. Incidentally, this may be the first time I’ve ever seen Mr. Cahill backing the DDA, especially on an issue that involved new construction. That alone is enough for me to consider his comments significant. ;)

       —Murph    May. 16 '09 - 11:23PM    #
  2. Environmental law groups have been suing to get standing in lawsuits for quite a long time, with a lot of well reasoned thought but not a lot of case law on their side. The book from 1974 that crystallized a lot of this thinking is “Should Trees Have Standing”; a review

    “In this influential work, Stone argues that special guardians be empowered to speak for the “voiceless” elements in nature, in effect, to give legal standing in the court of law to endangered species and threatened forests.”

    The argument goes in part that since the air we breathe is going to be damaged by this development, someone should have the right to stand up for it in court and plead its case. Not a frivolous perspective at all.

       —Edward Vielmetti    May. 17 '09 - 01:26AM    #
  3. I wonder what the City policy is on archiving emails. When I was on the BOC, there was a policy of deleting all emails from the (county) central records immediately. The effect was that they were not FOIAble. I don’t understand the technical aspects so can only guess that the servers were scrubbed when emails were downloaded to individual recipients. Some departments apparently retained emails so that they were accessible. But a lot of sensitive stuff got obliterated. One of the things I chose not to make an issue of.

       —Vivienne Armentrout    May. 17 '09 - 06:14AM    #
  4. I literally laughed out loud at this. Thank you for brightening my Sunday.

    Am I allowed to put a new picnic table in my backyard if it might cause friends to drive to my house for a party and thus ruin our environment?

       —Patrick    May. 18 '09 - 02:24AM    #
  5. These people give democrats a bad name.

    To say that a new parking structure will cause cars to drive towards it and therefore it harms the environment is ludicrous. The same cars will be on the road shopping elsewhere if there is no place for the cars to park downtown. Whether the cars are downtown, 1 mile away. 10 miles away or a county away, the air is effected just the same. Co2 emissions and ozone alerts are not localized to a 1-mile area such as downtown Ann Arbor.

    Not building the parking structure will not decrease the number of cars that are on the road, therefore the environment is not harmed in a greater manner than if the parking structure is built.

    What is bad for the environment and society in general is the “hot air” that comes out of these people’s mouths.

       —Diane    May. 18 '09 - 03:52AM    #
  6. Someone needs to set council up with an Instant Messenger system. Those messages aren’t able to be archived or tracked like email can. Then they can make fun of the public commenters and do the REAL work of council behind the scenes without the FOIA issues. You may think I’m kidding, but i’m not.

       —Marvin Face    May. 18 '09 - 05:54AM    #
  7. Who are “these people”?

       —Kerry D.    May. 18 '09 - 05:59AM    #
  8. I think she is talking about the people bringing the lawsuit.

    It is often true of environmentalists that they would “eat their young” if they thought they were not “pure” enough. “These people” are so self-righteous they are suing one of the most environmentally progressive governments in the whole country.

    What is really interesting is that the guy bringing the lawsuit is married to the chair person of the DDA, also the only person on the DDA who is against the new structure. Seems kind of cozy.

    The loser in all of this will be us. No new structure, no new pedestrian improvements, no new streetscape and bike lanes on 5th and Division and no new business downtown.

    But the downtown merchants will be the big losers as other parking lots are closed in the next few years. At least they will know who to blame.

       —David Lewis    May. 18 '09 - 06:48AM    #
  9. David is right, when I say these people I mean the people who are bringing the lawsuit.

    I write in a generic form (using these people, some, one etc.) because my background is in science and I have been trained to write that way.

    What you are implying with your question is spin and not indicative of what is intended by my statement.

       —Diane    May. 18 '09 - 05:14PM    #
  10. No suit has been filed, and hopefully none will be. Noah Hall’s letter is kind of odd. Typically, if you are going to sue someone you say something like “If you don’t do such-and-such by [insert date], then we will be forced to take legal action to protect our rights.”

    Instead, the letter backs and fills. It reads like it was put together by a committee that is divided internally.

       —David Cahill    May. 18 '09 - 05:38PM    #
  11. This is sadly typical of Ann Arbor B.S.

    I can’t wait for the people who want to preserve green space to sue the sue-ers.

       —anonymous observer    May. 18 '09 - 05:52PM    #
  12. oh, good grief. w/o more parking i might just have to circle downtown for 30 mins looking for a spot (yet again). how’s that for “ … pollute, impair, or destroy the environment?”

    btw, please point me (and perhaps other readers) to the alternative plan. not being all that arborupdated i missed the reference to that other plan. tia.

       —toasty    May. 19 '09 - 02:34AM    #
  13. toasty –

    I hadn’t seen the study either. But the DDA has it on their website; I added the link above.

    It looks like the most relevant section is Chapter 5. Final Recommendations , which includes a 17 page long “toolbox” of implementation tools. Most of these are focused on not increased parking capacity per se so much as providing alternative or supporting means of providing transportation capacity. (After all, parking is just a means to an end, which is getting the places you need to go in order to do the things you need to do.)

    On the other hand, the demand-management approaches to the parking system do not preclude any supply-side actions from being taken. The study notes that “Providing new structured parking spaces is almost always the most expensive means of providing access and mobility for downtown districts,” but also states that, “continued success of Downtown, however, is likely to mean that demand will continue to grow, and that eventually some of that demand will have to be met with new parking supply.” If right now is the time that the DDA determined they’d have the opportunity to do that parking underground, rather than later aboveground, then I’m okay with that decision.

    Of course, I haven’t been following much of the discussion either, lately, so I can’t say I can really evaluate the project fairly.

    I do think it’s pretty interesting to threaten a MEPA suit based on increased VMT – to be honest, I’d love to see that stand, in the name of blocking narrow-minded and short-sighted (not to mention expensive) highway expansion projects. As Diane notes, blaming the structure for the VMT assumes the trips just plain won’t happen if the structure is not built, while I think it much more likely that the “no action” alternative means those trips will just happen out of town, and probably increase VMT even further. (Which raises the question – Ann Arbor has a serious jobs-housing imbalance, forcing people to live elsewhere and drive into town. In this context, could residential downzonings or project denials be challenged on grounds of increasing emissions by forcing people to live out of town and drive? I doubt it. But it’s interesting to think about.)

       —Murph    May. 19 '09 - 03:13AM    #
  14. well …. ghee-ha-whiz! if “the most relevant section is Chapter 5” (which i actually read before i posted – what did i miss?) turns out to be “the prudent alternatives to the proposed new parking structure” someone got ‘took’, imnsho.

    get a refund!

       —toasty    May. 19 '09 - 05:43AM    #