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Elizabeth Nelson's City Council Blog

I write a City Council newsletter with my summary of agenda items coming before City Council. Sign up to receive it first via email, or read it here later on this blog.

Selective Oversight: TC-1 Zoning and City Contracts

At our most recent meeting (Mar 7, 2022), two items of particular consequence were voted on: first reading of a re-zoning for a Transit Corridor District on South State Street in Ward 4, and a large contract for work on water main (and additional street surface work) in Ward 5 at Third and Mosley.


TC-1 DISTRICT


C-2 (22-0346) An Ordinance to Amend Chapter 55 (Unified Development Code), Rezoning of 68 Lots in the South State Street and East/West Eisenhower Parkway Area to TC1 (Transit Corridor District), City-Initiated Rezoning, (CPC Recommendation: Approval - 8 Yeas and 0 Nays)


At this week’s meeting (Mar 7, 2022), Council approved at "first reading" the rezoning of 68 parcels (200 acres) at the intersection of State and Eisenhower. This ordinance will be voted on at "second reading" with a public hearing at a subsequent Council meeting. See map below:


Critics of this new zoning category have pointed out that it will permit a scale of development that will be extremely profitable for owners and investors, without adding any incentives related to sustainability or affordability. Such incentives are a part of the dense zoning permitted downtown in D-1 and D-2 zoned districts. It has also been pointed out: a significant number of these parcels are owned, managed, or otherwise affiliated with owners/executives at Oxford Companies, who actively support and donate money to Mayor Taylor and the current majority on Council.


Proponents of this zoning category argue that density along a corridor like State Street is inherently sustainable and that increasing housing supply will inevitably lead to lower housing prices. When asked to vote on this, the current majority of Council had no interest in imposing any sustainability or affordability requirements on developers in this specific zoning category. In discussion at the table last summer, City staff acknowledged that such requirements might possibly be added later, but they recommended starting without them, to see what is actually built.


I supported the rezoning of this part of Ward 4 because the area is clearly under-utilized. When I bike around State and Eisenhower, I am struck by just how much pavement is wasted on large parking lots in front of offices; I believe that this area would be a very good location for more people to find housing, in relatively close proximity to the City (and accessible via public transit). As currently written, the Transit Corridor District is the closest thing we have to a solution to the under-utilization of property in this area. I voted in favor of adding affordability and sustainability conditions to TC-1 zoning, but those terms did not find support from a majority of Council.



SUBSTITUTING CONTRACTORS


DC-2 (22-0118) Resolution to Award a Construction Contract to E.T. Mackenzie Company for the Third & Mosley Water Main and Resurfacing Project ($1,299,999.25) (ITB No. 4702)


I wrote previously about a contract on this week’s agenda: water main and street surface work at Third and Mosley. The $1.3 million contract was discussed at our February 22 meeting and postponed to this week, because a majority of Council wanted to reject the bid proposal recommended by City staff. I wrote about what happened at the February meeting:

https://www.a2elnel.com/post/picking-choosing-contractors


A few hours before our March 7th meeting, Council received information that contradicted statements made at our February 22nd meeting. At that February meeting, several members of Council argued against one contractor and in favor of another by misrepresenting OSHA safety records and contradicting City Staff. More concerning: the contractor favored by a majority of Council (Bailey Excavating) misrepresented their own OSHA safety record in the bid proposal they submitted to the City.


Ryan Stanton from MLive reported on this issue:

https://www.mlive.com/news/ann-arbor/2022/03/this-is-corruption-ann-arbor-council-divided-6-5-over-contract-controversy.html


From that article:

The OSHA website lists eight safety violations for E.T. MacKenzie in the last five years and six for Bailey Excavating. E.T. MacKenzie disclosed its violations in response to the city’s bid questionnaire, while Bailey Excavating did not, instead answering that it did not have any violations.

In discussion this week, new arguments were offered in support of rejecting staff-recommendation and inserting Council preferences. Where previously Council colleagues offered incorrect information about OSHA violations, this week they argued about the relative quality of different employee training programs.


My colleagues came with prepared written statements. At the table, Council Member Radina explained:

“Two weeks ago I pulled this item from our consent agenda because I believed it was in the best interest of the city to take a deeper look at this contract. There is a reason that contracts come before Council for approval. As part of our normal bidding process, Council retains the authority to reject any and all bids if we believe it is in the best interest of the City ... Two weeks ago, I was prepared to exercise this authority to reject all bids and restart the process under our new best value criteria that voters overwhelmingly approved last election ... rather than asking to restart this process entirely, instead I am going to ask this body to utilize the authority already granted to us under the existing responsible contractor policy and bidding process ... to award this contract to Bailey’s Excavating.”

A majority of Council ultimately voted in favor of Council Member Radina’s amendment, awarding the contract to Bailey’s Excavating. Since that decision, I have talked to local residents as well as leaders at the county, state, and federal level about Council exercising this kind of discretion with large municipal contracts. Everyone I have talked to recognizes the hazard of politicizing the choice of contractors, outside of a formal bidding process.



SELECTIVE OVERSIGHT

The two issues described above - TC-1 zoning and Council discretion choosing contractors - illustrate what the current majority of Council believes is and is not the role of our local government.


Until very recently, Council held oversight authority for all development site plans that generated more than three housing units. City Council retained oversight authority as the final approving body for site plans, even when a development was “by right,” i.e. developments that legally conform to zoning standards. Council rejection of a by-right site plan was rare, and it typically led to legal negotiation and compromise.


Just six weeks ago (Jan 3, 2022), a majority of Council voted to rescind this policy, amending our ordinances to remove Council oversight of larger, by-right site plans. This authority is now delegated to unelected Mayoral appointees on the City Planning Commission.

https://a2gov.legistar.com/LegislationDetail.aspx?ID=5257198&GUID=CCC85ECA-E45C-48D9-8A62-326ECF176CBA


If it passes at second reading, TC-1 zoning will define an entirely new category of “by right” development. We do not yet know what kind of projects are likely to be proposed for construction in TC-1 zoning, but we do know that none of the site plans related to those projects will be voted on by your elected City Council. A majority of Council voted to remove our oversight authority over site plans less than two months before voting to approve TC-1 rezoning.


Where Council retains oversight authority, Council can be held accountable for controversial decisions. I wrote on this topic in January 2021, when a majority of my colleagues voted to remove Council oversight authority related to traffic reconfigurations and lane reductions. I wrote at the time:

An agenda item of controversy puts a responsibility on Council members to study staff reports and hear resident perspectives. Where there is disagreement, we must reconcile the two and take a position that we believe is in the best interest of the community. I welcome this responsibility and take it seriously. I believe every member of Council should accept this responsibility as part of our elected position. https://www.a2elnel.com/post/council-responsibility

At one point in our discussion of the Third/Mosley contract, Council Member Radina described his amendment (substituting contractors) as “a critical function of Council’s oversight authority.” I was surprised to hear this particular talking point, given how much Council oversight authority Council Member Radina and his colleagues have voted to remove from Council responsibility.


If prepared speeches are taken at face value, we can conclude: the current majority of Council believes that they were elected to make sure that the largest City contracts are awarded to specific companies that they prefer, instead of the companies chosen by City staff in a formal bidding process. The current majority believes that this function - picking and choosing companies - is more “critical” than overseeing the City’s growth and transportation goals. A majority of Council does not want to take responsibility for the decisions that impact the neighborhood where you live and the streets that you use. Instead, a majority of Council wants to decide who will profit from large City contracts.



WHY THIS MATTERS

City Council members do not have any long-term perspective about the success or failure of large infrastructure projects in the City. City staff do. City Council members do not have any experience working directly with specific contractors to assess the quality of their work or the nature of their business. City staff do.


Our community - by charter amendment - voted last November to change the process that staff uses to evaluate bids and recommend contractors. The task of assessing and choosing contractors has always been held by staff, because they are qualified to do it. Shifting this responsibility to Council would put decisions into the hands of people who have no experience overseeing large municipal projects and no experience working directly with contractors. It is worth asking: without any relevant knowledge or experience, what would influence Council decisions in choosing contractors?


In January, political candidates and their election committees filed annual reports of contributions and expenditures for 2021. Some of these reports were long, but one was remarkably short. Donations to Mayor Taylor's campaign in December 2021 (totaling $15,000) came from just four sources: a UM Regent and spouse ($4,000), a local business owner ($1,000), and a Lansing-based PAC ($10,000). The report is a public record:

https://campaignfinance.us/docs.washtenaw.mi/28550.PDF


We are in an election year, when voters will consider who can provide the best leadership and representation for the benefit of our local community. In 2020, the five winning Council candidates endorsed by Mayor Taylor reported a total of over $150,000 of expenses on their campaigns. Of that total, a remarkable $45,000 was spent on professional management and marketing, coordinated across campaigns with shared consultants. Races this year are likely to be similar, and residents should wonder: who is paying for it and why?