When I started this blog, I intentionally determined that I would not write about current issues facing City Council. I’m going to stick to that – but am going to walk a fine line. I hope. I’m writing this piece because – well, it helps me to think things through as I organize my thoughts. And also because there has been occasional pressure to develop a parcel here or there in our community, and I hear from the folks who don’t greet these new developments with enthusiasm. Frequently, they ask questions that indicate they don’t understand how developments are approved or rejected. I’m hoping to clarify some of that.
I have divided this post into four parts: The role of the developer / owner; the role of the City’s staff; the role of the public; the role of the City Council; and Frequently Asked Questions. And you can skip ahead to read these, if you want.
But before I get into the details, I have a couple things to point out.
First, please note the title I gave this piece – “truths about planning for development.” I think it is important to recognize that City zoning regulations and master plans are created with the expectation that more development will occur – and to establish which types of development are preferred for which locations.
Second, we live in a country that clearly reveres both capitalism and private property rights. And our state and local planning, development and building rules reflect this reverence. If you own property, you have a right to do what you want – with certain restrictions – and to make money while doing it.
The role of the developer
I tend to use ‘developer’ and ‘owner’ interchangeably. Of course, any prospective developer is not necessarily the owner. Sometimes, owners are trying to sell their land, and the developer has an option to buy – if the development is approved. Sometimes the owner hires a developer to plan and build a project, intending to continue to own the land. But developers must have the permission of the land owner – or be the land owner – in order to proceed through the development process. No one would allow a developer to plan a project that would be built on someone else’s property – because of that reverence for private property.
I hear concerns from residents that developers have already invested large amounts of time and energy – and money – in a design before the public even knows such a prospect is on the horizon. And so, it’s difficult or impossible to convince the developer that his plans are wrong. Each step along the way the developer has to respond to City regulations. Recent queries about the cost to develop in Ann Arbor have resulted in a likely cost – for a large development – that can be significant. This highlights one of the conflicts about development – because, if we are encouraging more development, we should reduce the initial cost to the developer. That’s a direction several people in the community would take. They believe that, by reducing costs, the City will see more investment in the design of the buildings. But that brings up an interesting issue – building design. Since most of us never see the insides of the buildings we pass, we want buildings that improve the way our community looks and works. And many of us are dissatisfied with the investments some developers are willing to make in our community. This adds to the tension around proposed projects.
Developers are not looking to build projects in Ann Arbor in order to make our community a better place to live, work, or enjoy. Their primary goal is to use property to build wealth. I’ve found that expecting a developer to be altruistic – to spend more to make a better design, offer more amenities to the community, or develop a less-intensive use of the site – is, well, unrealistic. It’s delightful when it happens, but not something I expect.
Before submitting any plans to the City
There are a number of times before a developer submits plans that those plans can change. Frequently, developers are savvy enough to meet with City’s staff and learn of any issues with the proposed site. They read the master plan and the zoning documents prior to putting any pencil to paper, and design their plan to meet their understanding of the local rules.
If the project is large enough, it will require a ‘site plan’ – and if it requires a site plan, it will require a citizen participation meeting. After that public meeting, developers may alter their plans in order to address local concerns. They are not required to do so, though. If the project is on currently undeveloped land in a township island, the land will need to be annexed before it can be developed as part of the City. If the project is downtown (in either the D1 or the D2 zoned areas) the project will also need to come before the Design Review Board directly after the plans are submitted – so the developer will need to schedule that meeting with the Design Review Board.
After submitting plans
Certainly developers must meet zoning code requirements and ought to design to match the master planning documents. There are a lot of these (seven, right now, with updates) – and ideally, there are no conflicts within these documents.
Developers are required to meet with City and County staff to hear recommendations and concerns about everything from fire department access to storm water management, from master plan conflicts to street design and traffic; these meetings are public, and the public may speak during public comment time. Because each meeting is scheduled separately for each development, meeting notices are posted but easy to miss.
Developers may ask to meet with City Council members, members of the public, business interests, the City Administrator, school officials, the planners from the University and the route planners for AAATA. These are not required meetings, but a developer may want to learn about obstacles and opportunities. And these are not public meetings, although they need not be secret.
The developer’s plans may change during this process, but a full set of plans – traffic, landscape, storm water, lighting, building location, building elevations, internal layout – will be submitted to the City electronically. These plans are available for public review on eTrakit. New documents will be added as a project moves forward – and since I haven’t found a consistency for how these documents are named or organized, I encourage you to look at what’s there for any project or street that concerns you.
The role of the City’s staff
A lot of people react to City’s staff comments as if they were supporting and promoting a development. I certainly have had that feeling. But the City’s staff are focused on making certain the development fits all of the City’s rules and regulations. That means, they tell the developer that his proposed project does or does not meet the terms of the ordinances and the local building code. They review the master plan, and indicate whether the proposed development meets or conflicts with the expectations in the master plan. Their role is to say “how,” not “no.” Here’s how you can do this . . . here’s how you need to make room for . . . here’s the requirements for . . .
The City’s staff members are also engaged in the drafting of the master plans, although these plans are the result of input from City residents and must be approved by City Council. I look at the master plan as a bible (in that non-religious sense) that includes aspirational statements, ideas, and firm expectations. Sometimes, these are in conflict with each other, because we may want to preserve existing neighborhoods and still promote dense, infill development.
Before plans are submitted
City’s staff can express irritation when developers don’t meet with them early. Although those meetings are not required, a review of the development process guidelines make it clear that meeting with staff before submitting plans may reduce the ways in which a proposed development is out of alignment with the City’s expectations. By meeting with prospective developers, they can begin to make certain that any proposed development fits the goals in master plan as well as the rules in the ordinances.
If the developer must hold a citizen participation meeting, the staff will provide a list of all residents living near the project site, the adjacent neighborhood organizations, and various organizations who want to be informed about each proposed project. The developer is responsible for the notification; the staff are not involved in planning for or presenting at those meetings. The developer is required (by ordinance) to submit a report on that meeting; this report goes to Planning Commission.
After receiving plans
Working with other members of state, county and City staff (fire, solid waste, traffic and streets, forestry, parks, storm water, etc.), the planning staff will review and evaluate the plans. Are there enough properly designed entrances to the site? Does the calculation for storm water detention match the impact of this new project? How many additional cars need to be stored on this site? How many additional car trips will be generated? Where is the nearest bus stop? And so on.
The City’s staff advises the developer when and how the design must change in order to comply with local ordinances. That’s their job. And if the site plan does not comply with local ordinances, the staff will work with the developer to correct those out-of-compliance problems. In the end, though, it is up to the developer to make changes so the project reflects the City’s zoning regulations and – I hope – meets the expectations reflected in the master plan. If the developer doesn’t make those changes, the staff will recommend to the Planning Commission that the project be rejected – or postponed until compliance is assured. (Planning Commission does not approve or reject proposed developments. The commission refers the proposed development to the City Council with a recommendation that it approve or reject the development.)
When the project is recommended for rejection, the City’s staff will continue to work with the developer to ensure that any development follows the City’s ordinances and master plan. If a proposal is not recommended for approval by the Planning Commission, though, the developer may still decide to bring that development to the City Council for a final decision.
The role of the public
In general, attitudes toward new developments vary with time – or maybe I should say ‘decade.’ Because ‘housing starts’ are a measure of economic health, it shouldn’t be a surprise that zoning ordinances enable and direct new development more than they prohibit it. But many people remain surprised that new developments can be proposed for that vacant land they drive past, and that such development is allowed.
Because the public ought to have the ability to make certain that new developments do improve the City in one form or another, the City has a Planning Commission that is appointed – and it’s made up of people who care about development and – in some cases – who understand building practices, architecture, urban planning or other specialties. But often members of the Planning Commission don’t have any special training. They read the ordinances, ask questions, listen to responses from staff and the developer – and make a recommendation.
There is a significant role in general for public engagement and public participation. Residents volunteer to serve on Master Plan study committees and subcommittees. Residents attend meetings and provide feedback on preliminary Master Planning documents before those documents go to the Planning Commission or – later – City Council for discussion and (possibly) approval. The Planning Commission and the City Council both hold public hearings on Master Plan documents – and although many people seem to believe these bodies aren’t listening, Master Plan documents are amended after those public hearings to reflect the concerns of those who attend the meetings.
After all, Master plans should reflect the community’s ability to absorb more development while defining the direction such development should take. If you are concerned about the potential for development in our community, apply for the Planning Commission, volunteer to help draft the master planning documents (these are refreshed periodically), or bring up concerns about an area before anyone proposes it for development.
Before plans are submitted
Sign up for notices from the Planning department using the Email Alert Subscription services. You may select from a variety of notices, including notices about proposed developments and public meetings. I recommend both Planning Petitions Under Review and Planning Update.
When developers send out postcards inviting the public to citizen participation meeting on the development, it’s a good idea to go or ask someone else to go. No one likes to be blind-sided by a new project. If you attend, ask a lot of questions. Follow up with the developer, even if you cannot attend (contact information is on the postcard). Ask to see the developer’s report on the meeting – and, if you were in the audience, make certain that report is as accurate as possible.
If you have concerns that extend beyond the development – concerns about natural features, storm water, traffic congestion and infrastructure – make certain you ask the City about those concerns. I encourage asking members of Council. The Council members can, in turn, ask those questions of the City Administrator and, if there are problems in an area, make certain those problems are being addressed without regard to any impending development. Developments, after all, should not cause problems, and existing problems should be corrected. Period.
After the developer submits the plans
The plans that the developer shows at the citizen participation meeting may be different from those actually submitted to the City. And, after the developer meets with City and County staff, those designs may change again. These plans are available to the general public on eTrakit and – for a more detailed look – are kept on a table in the north lobby of City Hall.
Attend as many public meetings related to the project as possible. Ask questions. Meet with or call the developer if you are not satisfied with the answers.
Read the City Code to see if there are problems that a developer cannot overcome that would prevent this development.
(Keep in mind that the developer’s goal is to create wealth through increased use of this property. To do that, the developer must get the plans approved – which means they must meet current City ordinances and address issues in the master plan.)
The Planning Commission
Planning Commission members are nominated by the Mayor and appointed by City Council, and represent the various interests found in the community. They are members of the public who serve for three years – and may be reappointed.
Planning Commission members should be familiar with the master plans and a variety of ordinances, including zoning, parking, storm water management, private and public streets and natural features. The staff’s role is to work with developers to make certain that any plans fit the City’s ordinances. The Planning Commission members can take into consideration a number of other concerns – such as the design of sidewalks, plans for storing snow, the quantity and quality of any landscape materials, drainage, and the effect of the proposed development on adjacent properties.
The Planning Commission holds a public hearing before discussing any proposed project. This public hearing is an opportunity for the general public and the adjacent property owners to address concerns and highlight opportunities that the development would bring. Some public hearings are very sparsely attended – maybe one person wants to talk about a gas station addition, for instance, and that person owns the gas station. But others are quite intense, as residents speak to the negative and positive affects the proposed development could have.
Planning Commission members must apply the existing rules to any project. Those rules include state and local regulations. And in the end, they send a resolution to City Council recommending that the Council approve – or reject – a proposed development.
The role of the City Council
City Council members are elected to be representatives for the public. I’d like to pretend that we elect representatives who reflect the entire spectrum of skills and interests found in the general public – but we tend to elect people who are likeable, professional, educated – and who have plenty of time to give to their communities. Elected officials have to constantly remember that they do not just vote their own views, but that they listen to and vote for the views of the community. At the same time, elected representatives – City Council members – must follow the law.
The approval process
For several years, the most contentious new developments were planned unit developments (PUDs). Because these types of development include rezoning property as well as approving a site plan, each project had greater scrutiny (because it didn’t fit the existing zoning). The rezoning – which is an amendment to the zoning ordinance – meant that the Council would discuss the proposal at two different Council meetings and would hold a public hearing on the rezoning – as well as on the site plan. People began to think these two readings and two public hearings were standard on all projects. They are not.
Council members have absolute discretion if a developer is proposing a project that requires a ‘planned unit development’ (PUD) because that projects rezones a specific site in a way that does not meet existing zoning code. If Council members vote in opposition to a PUD, they need to identify the ways in which this development does not meet the City’s ordinances. But, since the developer is requesting a PUD rather than to build to fit existing ordinances, the Council is not as constrained in its decision to approve or reject.
If a proposal fits existing ordinances (what many call a ‘by right’ development), it’s more difficult for the Council to reject. Creative Council members will comb the master planning documents and the City’s ordinances, seeking ways that the proposed development does not truly meet the letter (and the spirit) or the regulations. They will seek advice from the City Attorney’s office and the Planning staff about whether the staff believes this proposal is in compliance – and may learn more about why the staff recommends approval or rejection.
Since the City rezoned the downtown, most proposed downtown developments are ‘by right’ and fit the zoning. That means that there will be a public hearing only on the site plan – one reading, one meeting, one public hearing. The same is true for most non-downtown proposals – the developer will present a project that fits the ordinances and is considered ‘by right’ – and the public will be heard by the Council on the night they vote on the proposal.
The Council members will be advised that they must act in accordance with the existing ordinances and will learn more than they might want to know about how the courts evaluate those dreaded terms ‘arbitrary and capricious.’
In the end, Council members will vote individually on the project, keeping in mind that they are responsible for the City as well as responsible to the citizens.
Can’t we buy this land using Greenbelt money?
Greenbelt money is finite – but even if it were not, there are a couple of things to think about. The seller must be willing to sell to the City. The price must be reasonable. And, of course, if this is to park land rather than public land which could be developed in the future, the impact to the City’s budget (for design and maintenance of the park) must be offset by the benefit to the community (is a park needed there? Is this a special terrain or unique location?)
Can’t we take this land using eminent domain, and make it a park?
Cities can use eminent domain to acquire property, but need to be able to defend any challenge in the courts by indicating how this use benefits the community as a whole. Each opportunity must be weighed against the impact to the City if challenged in court.
Can’t you (on Council) just say NO?
Council members may vote NO – but they really are constrained by existing land use regulations (zoning, streets, parking, etc.) and the master plan.
Can’t you (on Council) just change the zoning / parking / storm water management regulations so this development isn’t in compliance?
The Council may amend an ordinance at any point – but if it appears that this amendment is triggered by a specific development or developer, the Council may decide to defer amendment until no affected developments are pending. Because the courts take private property rights into consideration (and in the US, private property is important), trying to stop developments by changing the rules is – well – frowned upon.
Can’t we make the developer include affordable housing (or senior housing or family housing)?
The operative word here – and in other questions – is ‘make.’ The City could decide to require affordable housing units (or senior or family) (a percentage, for instance) of all new residential housing proposals. At this time, no such requirement exists. So at this time, the City cannot require that.
Can’t we make certain there is no affordable housing (or student housing) in this project?
The City’s concerns are that the proposed project fits the various regulations. The current regulations prevent discrimination against any resident who pays the rent or makes the purchase price. I wouldn’t want the City to allow discrimination against students or the poor – because I wouldn’t want the City to allow discrimination against people based on their religion, their appearance or their first language.
Can’t we make the developer build a different project?
We’re back to that rule of private property. If the developer proposes a project that fits the current ordinances and meets the standards of the state building code, the City cannot require that he build to a higher standard. For instance, the City cannot require that a developer build to LEED (or any other environmental) standards.
Equally, if the developer proposes an apartment building for an area zoned for multi-family (stacked) units, the City cannot require that he build single-family detached homes.
What does the Design Review Board do?
Several people have asked about the role of the Design Review Board. The Design Review Board is advisory – and it offers advice to the developer on the design of a proposed development in the downtown. It does not even see proposals that are outside that area. And because the board is advisory (to the developer, not to the Planning Commission or the City Council), the advice is just that – not something to which the developer is required to pay attention.
Although some discussion has occurred about extending the Design Review Board’s role, it’s mostly been about adding ‘teeth’ – that is, requiring that the developer comply with the Design Review Board’s recommendations So far, though, the rules for this board have not changed. Whether the City will ever extend its oversight to the entire development process is completely unknown.
What about annexation – must the City annex? Must the City zone the way the developer wants?
You can read a history of annexation and the City’s expectations on my website. You may also look at the information provided to developers here.
Generally speaking, the Planning Commission may recommend approval for annexation and zoning – but will look at the master plan and determine the desired density while it does so. A recent Planning Commission discussion about annexation, housing type and density included discussion of the number of required curb cuts, the design and placement of any internal streets, the amount of added impervious surfaces, the quality of internal walkways, the location of parking – and whether any of these would be improved by annexing in and zoning for R1D (small lot detached single family) rather than R3 (townhouses).
The City Council may agree with the recommendation of Planning Commission regarding the zoning – but may also return it to the Planning Commission for reconsideration. Ideally, the City will annex the property and zone it in such a way as to fit the expectations in the master plan.
The City’s staff, Planning Commission and City Council must all work within the current regulations. Nothing prevents changing those regulations, though, except that it’s a bit difficult to change regulations to prevent a specific development from going forward.
The City doesn’t really have any vision for its development future that is not in the master plans. If you believe that the direction the City is following is misaligned with the future you want to see, then let’s work together to change the master plans and rewrite the ordinances.
The Michigan Planning Enabling Act of 2008
The Michigan Municipal League’s manual for new Planning Commission members
The City of Ann Arbor’s Submittal Requirements for new developments
The City of Ann Arbor’s Citizen Participation requirements
The City of Ann Arbor’s master plan elements