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413 E Huron

May 13, 2013

The Ann Arbor City Council May 13 voted 6-5 to approve the controversial 14-story residential project at 413 E. Huron. The Ann Arbor Chronicle covered it here: Green Light for 413 E. Huron

March 2, 2013

At its March 4, 2013 meeting, Council will consider a resolution that would impose a moratorium on downtown development while Planning Commission and Council review the A2D2 zoning standards. Apparently, the City Attorney's office has admonished Council that the application of a moratorium on the 413 E. Huron project would expose the City to a law suit claiming bad faith. The Michigan case law on zoning and land use could not be more clear. A city has the right to change zoning requirements for any property unless that property has an approved site plan upon which the land owner has relied in taking significant actions. A good article for understanding the issues appeared in the Washington University Journal of Law and Policy titled Vesting Verities and the Development Chronology: A Gapping Disconnect?

A recent Circuit Court decision explores many of the issues involved in the A2D2 development moratorium and zoning review: Grand Sakwa v. Township of Northfield.
"Applying the balancing lesî, the Courî finds  Plainîiffs evidence merely demonstrated its desire or intention to develop the Property differently than it is Currently zoned. Specifically, Plaintiffs claim for “$1,900,00000 spent pursuing zoning approvals for SR-"l, funding development costs, and making payments under the purchase agreement”, although significant, is not the kind of expenditure that meets and satisfies the Penn Central factor. in Michigan, in order to demonstrate a “distinct investment-backed expectation” a party needs to show that a building permit for construction was secured, and that substantial investment was made in performing the consîructìon necessary under the zoning regulation. Gackler Land Co, Inc v. Yankee Springs Twp, 427 Mich. 562 (1986) and City of Lansing  Dawley, 247 Mich. 394, 396 (1929).

The Michigan Court of Appeals affirmed the trial court in a ruling that was less broad in its approval of local rezoning actions. The Court of Appeals found that the developer had no vested interest in the pre-amendment zoning. It also found that the developer had not suffered a Constitutional "takings" because the current use of the property was not diminished and because the developer had no right to acquire the highest possible value from the land. 

Litigation always presents risk. The failure of the Council to impose a moratorium and change the zoning of 413 E. Huron was extremely risk adverse. The Council had good reason to revisit the zoning of this site, the master plan's reqirement of a buffer between D-1 districts and the near-by neighborhoods. The developer did not have a good argument for an impermissible takings, because it had done little in furtherance of the site plan and would not have been prevented from acquiring some economic benefit from its property. 


February 26, 2013

Recently a proposal was put forward to build a 14 story high-rise at the corner of N. Division and E. Huron.  This project has reignited an old issue from 2009, when the City was completing the rezoning of Downtown into D1 and D2 districts.  D2 was created to be a step-down transition zone, as called for in the Downtown Master Plan, that would buffer the surrounding neighborhoods from the ultra-large and dense developments that would be allowed in the core (D1).  Unfortunately, despite the Master Plan, and the recommendation of the steering committee and staff to make it D2, planning commission and council ignored the experts and the community and made the strip of downtown land along the north side of E. Huron a D1 zone, with only slight limits (buildings limited to 150 instead of 180 feet, and requiring a 30-foot setback from the residential properties to the north).  As a result, we have a strip of land that is zoned in a manner that is inconsistent with the master plan, and allows for very large buildings that will literally cast a shadow over the entire neighborhood to the north throughout the Fall and Winter.  This neighborhood is made up of some of our best-preserved historic properties and is part of the Old Fourth Ward Historic District (as well as North Division and Ann Street districts).  There are several other buildable sites along this strip that could have buildings as massive and taller than the one proposed at Huron and Division.

Every neighborhood should be concerned about this, The ultimate question posed by this moratorium and zoning review is whether zoning regulations should comply with the City's Master Plan. In this dispute, the Master Plan calls for buffer areas between core downtown density and nearby neighborhoods. There is a similar condition along S. Fourth Ave.  Additionally, the DTE building and parking lot on Main, between Main and Packard, is also zoned D1 and could be developed in a similar way--only with buildings as high as 180 feet!  In that case, there was not a late change, but rather it was recommended to be D1 all along.  You may recall that at the time, that certain members of council and planning commission had their sites set on expanding downtown "with apartment buildings from William to Madison."

Council members Sabra Briere and Steve Kunselman are co-sponsoring a resolution for a moratorium on developments in the D1 district that would allow the City some time to re-evaluate the zoning--especially for these edge areas.  There were a lot of last minute changes to the zoning that appear to have resulted in some unintended consequences.  Partly due to all these last-minute changes, Council added a "resolved" clause to the zoning resolution that called for a one-year review of the zoning.  This review is already two years overdue.

Here is some of the media coverage on the moratorium:

http://annarborchronicle.com/2013/02/24/site-plan-moratorium-commentary-no-action/

http://www.annarbor.com/news/legal-threats-arise-as-ann-arbor-city-council-considers-moratorium-on-new-downtown-development/

Here is an editorial on the 413 E Huron matter:

http://www.annarbor.com/news/opinion/14-story-east-huron-opinion-column/

The group proposing the moratorium has contacted multiple experts--attorneys and urban planning experts--who all resoundingly agree that the City is WELL within its legal powers to call for this temporary moratorium to re-evaluate the zoning, and is in fact, enabled to do so by State law.  It is in the public's best interest that we pause and make sure we aren't doing irreparable harm to our City by allowing projects to be built that are not consistent with our master plans.

I urge all to write emails to city council members and the mayor asking them to support the moratorium, not just because of the potential negative impact of D1 zoning adjacent to the Old Fourth Ward, but also for the potential negative impact of D1 adjacent to the "Germantown" or "South Central" neighborhood.  It's important that the DTE site not be developed into a high rise that would cast a huge afternoon and evening shadow, regardless of the neighborhood's status.

This page has all the council member's email addresses: http://www.a2gov.org/government/citycouncil/Pages/Home.aspx   At the bottom, there's a link that can be used to email the Mayor and entire Council at once if you choose. The moratorium is on the agenda for Monday, March 4, so it's important that you write to them as soon as possible.  No need to be expansive--just a short note supporting a moratorium and why you think it's important. 
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