Planning Commission - workshop

Thank you so much. Well, good evening, everyone, and welcome to the Tuesday, July 28th work session of the Ann Arbor Planning Commission for the City of Ann Arbor. As this is a working session, we will not be deliberating or taking any votes in our time together tonight. I believe, and Manager Kelly, correct me, we will only have one public comment And that will be at the beginning. No, we're going to have two. All right.

Any meeting of the planning commission requires two public comment periods. You are welcome to update your bylaws at any time.

Well, we just missed that opportunity. So with that, we will open the floor to any public commenters. Since we're all on Zoom, if you could just use the raise hand feature and Manager Kelly will identify you by the name or the number that you've connected with in Zoom and give you up to three minutes to address the commission. So if anyone would like to address us on any issue, you could do that right now. Looks like we do have one.

Adam Juskiewicz, you have three minutes to address the Planning Commission.

Hi, this is Adam Juskiewicz, Las Vegas Drive in the 4th Ward. I just want to quickly say thank you for providing these educational sessions like this. I think this is going to be really valuable for the general public to learn more about planning and zoning. I think it's just it's great that you're opening these up to the general public. And I encourage people to watch and listen and learn from these. Thank you. Thank you.

I see no other hands raised.

I see the same thing. All right. So with that, this, as our last caller just indicated, this is one of our continuing eds conversations. We have several of these lined up over the course of the next year. I believe Professor Norton, in his role here today, will be instructing us. I think Dr. Mills will come next. And then I think I have, I've asked Wanwu lead to talk to us about the development process and pro forma. So those three, I know we have scheduled and then we're working with the Michigan Association of Planners to have a presentation on best practices after adopting your comprehensive land use plan. So those are the four that we have in the queue. And I think we are ready to turn things over to Professor Norton.

All right, I've got a slide presentation worked up. We'll see if it works. Can you all see that? And can you hear me okay? So knowing how this presentation is fitting into that scheme that Chair Weiss just laid out and having taught planning now for about 25 years, I realized I've been a student of urban and regional planning for about 35 years. teaching it for about 25 years, I want to give some background and basic principles of what planning and zoning is all about and how the two relate to each other. And that requires doing a little bit of history to really understand how planning works. It's helpful to understand some of the history behind it. So we'll see if this works. I wanted to start off just by noting that we've been doing planning forever. Cities like Ann Arbor are laid out in a logical fashion. Early efforts at planning were largely from a physical planning perspective, laying out street grids and starting to provide some basic infrastructure and such as communities grew. It's important to note here, particularly when Ann Arbor started or formed in the 1800s, The primary mode of movement was on foot or on horseback or on a carriage or maybe starting with trains. At about the same time, we had some major technological advances take place, and those included especially the Industrial Revolution and cars. The history of planning and zoning is a lot of ways about the automobile and how we've tried to weave that into our social structures. It's also very much about social relationships where we plan to manage land use, but in reality, we're also planning to manage social relationships. So that's a good thing to keep in mind as we step through this. I wanted to just give some historical context. We started zoning first and then realized maybe we ought to plan for zoning, a theme I'll come back to. The first zoning code is usually credited to New York City in about 1916. They were quite concerned about nuisance-like impacts from the large tenement buildings going in and the industry and the conflicts of land use and the start of the rise of the automobile. The first zoning code in Michigan that I know of, or at least one that became really influential, was an attempt by the city of Detroit to adopt a zoning code around 1920. The city was concerned about a proposed automobile battery recycling plant. Go figure on that. And the neighbors didn't like it. And so they pleaded with the city to adopt a zoning code to keep it out. And it did. It worked its way all the way up to the Michigan Supreme Court in a case called Clements v. McCabe. And the Michigan Supreme Court ruled, well, zoning may be a delegated police power, something I'll talk about more in a minute, but it has to be specifically enabled. It's not found in the general broad delegations of authority that the state gives to local governments. It has to be specifically enabled. Well, other states around the country started to have exactly that same experience. And that prompted then Secretary of Commerce, U.S. Secretary of Commerce Herbert Hoover, later to become president, to push through the U.S. Bureau of Commerce some model-enabling legislation. So these were model acts. They weren't actual federal acts. They were model acts. that the federal government was encouraging states to adopt that would specifically enable their local governments to engage in zoning and planning. So there's a theme here. They started off with zoning and then they went to planning. Well, that actually lined up with Michigan's experience because right after Clements v. McCabe came down, the state legislature came back and enabled city and village zoning. We want to let Detroit manage the land use development of its community over time. So it adopted the City and Village Zoning Act of 1921. One of the key provisions in the Zoning Enabling Act is that zoning should be based upon a plan. Well, planning hadn't been enabled, so we better enable planning right quick. So shortly after that, they enable it. Well, naturally, 10 years later, they enable the Municipal Planning Act. And then that gets followed up with county and township zoning, followed by county and township planning. By the early 2000s, the case law on how these acts work together and what the difference between them was, was getting really confused. And so the Michigan legislature convened a legislative working group in 2006 and basically consolidated the three zoning acts to create the Michigan Zoning Enabling Act. And then two years later, did the same thing for Michigan planning. So we now have two enabling laws in Michigan that enable zoning and planning. And that's the legislative framework that we're all working from. It's very similar to what most of the rest of the states around the country do for these historical reasons. In fact, in a way, Michigan's experience with city and village zoning was part of the model that went into the state standard zoning enabling act. So Michigan is number one. We were there first and along with some other states and helped guide that development. So that's some historical context. Why did zoning come about? Historically, the primary purpose of zoning, or at least the tabletop argument people put forward, was we have this rise in technology, obnoxious industries, incompatible land uses, congestion for roadways. We need to start regulating land uses in front of the problems that happen instead of waiting for nuisance claims to try and work through them after the fact. So that's the core idea behind zoning, at least historically, originally was separating incompatible land uses. But pretty quickly, communities started to realize that they could do other things like protect neighborhood character and maybe even protect private property values. I think Herbert Hoover's primary motivation was the recognition that it's hard to get business to function well if they're constantly in conflicts with residential areas. And we do need to plan for infrastructural activities that will serve business activities. And so there's a commercial business aspect to planning and zoning as well, tethered together with now communities using planning and zoning to protect neighborhood character. Another thing I'll mention here and I'll come back to it is it also is pretty clear from early litigation and purposes of zoning codes, especially that there was a socioeconomic class and even race attribute to zoning going on here. We're giving communities the ability to start segregating neighborhoods by race and class. And so that's been an unfortunate aspect of zoning that's been with us from almost the very start of the process. Move into the mid 20th century, particularly after World War II, the GIs come back. There's this huge need for housing. We just set off on planning and zoning in a huge way. And now we're not just trying to separate incompatible land uses. We're trying to use planning and zoning to promote and accommodate growth. And we go into separating and buffering land uses in a big way. I like to say on steroids. We're going to separate and buffer everything. want to get those commercial uses as far away from residential uses as possible. There's a huge emphasis placed on the single family residential home that becomes the primary focus. And that's basically some early Supreme Court litigation sanctions that, that that's a perfectly fine thing for communities to do. And then we're accommodating the automobile. And I should say, we're not really accommodating automobiles. We're accommodating people who rely on and want to use their automobiles to get around town and have that form of convenience. And we all do it. I don't know anybody who doesn't own an automobile and use it. I shouldn't say that. There are people out there now, increasingly so, who don't rely on automobiles, but we're very much an automobile culture. And we've really let accommodating our use of the automobile speak to a lot of the ways we think about land use and development. If you can see my cursor, I'm not sure if not. We've also used separating land uses and buffering in some quirky ways. So historically, the picture on the upper right hand corner here is one I grabbed off of the internet on Google Maps. we have this bad habit of buffering industrial land uses from the single family residential home by putting higher density, lower income housing in between the two. So ironically, we say we're buffering residential from noxious land uses, but in fact, we're putting more people in close proximity to those uses. There's some real quirks and maybe even perversities in the way that planning and zoning is playing itself out, excuse me, playing itself out. contemporary planning and zoning now, basically from about 2000 on, we're really realizing, oh my gosh, maybe we've gone too far. We've over separated things. Maybe we want to fold some commercial uses back into close proximity to residential uses and create the kinds of towns that we're forming organically. The older parts of Ann Arbor, downtown into the Old West Side where I live have been zoned out in many communities, arguably even in Ann Arbor once we started zoning. So we're missing out on this kind of natural proximity and walkability that early landforms provided. And so there's a lot of emphasis on bringing that back together. We're also realizing that we really need to start paying attention to environmental protection, natural features, and sustainability and resilience, especially in an age of climate change where we're seeing greater storms. Huge amounts of stormwater that go beyond what our infrastructure can handle and increasingly heat waves, apparently smoke now is gonna be a problem for us in Ann Arbor. And then the big thing, and I didn't put it on the slide, but I'm gonna emphasize it here is, especially in the last two decades maybe, the rise of housing costs. and the lack of affordable housing. And this is where the labeling gets a little bit tricky because it's not just income strained, low income affordable housing that's needed. It's the whole array of housing types, what we're calling middle income or missing middle housing for working class folks all the way up to higher end. And there should be in a healthy community, a whole array of housing types across that whole distribution. And that's becoming a huge aspect of contemporary planning and zoning efforts, much like we're experiencing here in Ann Arbor, and then also linking newer transportation systems that provide opportunities to get people out of their cars, especially if they want to do that. OK, so given that history and the kind of purposes for planning and zoning, here's some basic concepts for planning. Planning's inform primarily land use regulation and in public infrastructure. That's what we're all about. When we do the capital improvement program, we're dealing with public infrastructure. And when we're doing zoning and subdivision regulation, we're dealing with land use regulation. Ideally, we should plan first, then zone and spend, not do what we've historically done, which is more akin to ready, fire, aim, by zoning first and then going back and trying to figure out why we did that and plan for it. So we're doing it, we should be doing it the way we're trying to do it in Ann Arbor, which is plan first and then figure out how to make that work through infrastructure and regulation. Plans are not blueprints. They're not blueprints that have to be strictly followed. At the same time, they're not just talking points. They're not just the start of the conversation. I like to think of them as a policy, a default policy position. We've really thought things through. We've got some direction where we want to go. We really should stick to that unless there's a really compelling reason to do something different or rethink what we thought when we did the plan. So given that kind of position, plan making serves multiple functions. We use planning to find facts. What are the trends? What are the problems we're dealing with? What are the issues that are of concern to the community? We collect information on the community's values and document the goals that we're trying to reach. We combine those facts with goals to set policies. And then we document the process used. So when you make a plan, then you're speaking to multiple audiences. The plan becomes that organic starting document, the policy default position for residents to understand what they can and can't do and what they can expect. Public officials use it when they adopt and amend zoning codes and make infrastructure decisions. And then sometimes unhappily, if people are unhappy with what the community does and goes to courts, the courts use the plan to understand why was the community doing what it did? And is it following through with what it said, what it was gonna do? That said, it's also very clear in Michigan law and most other states that strict consistency between the plan and the zoning code is not strictly required because there's a recognition that the plan is a broader policy document and zoning codes and infrastructure decisions are more precise applications of them. And so it's really difficult to always make that direct connection, but it's really good practice for communities to use their plans to inform their zoning codes and to amend their plans if they realize in their zoning efforts that something's not working here, we need to rethink that, because the plan provides the justification and the rationality for what you're doing. If you're not following the plan, then you arguably are not being rational enough. and justified. So it really is an important policy document. It's not a blueprint that has to be strictly followed if there's good reasons to not follow it. Here's a point I want to make now and I'll come back to it is the planning process is pretty convoluted and complicated. And so that forces us necessarily to have to segment decisions over space and time and decision makers. So for example, we may set through the planning process some larger policy goals. We want to head in this direction. but then we'll make more specific application goals through the zoning code that happens later. It happens in different places that happen different times, and it can be made by different decision makers. That's necessary because of the complexity of the decisions we're dealing with, but it makes it difficult for people to follow necessarily what's going on here or why, and to get kind of lost in the weeds of what's going on. Okay, so it's just some basic concepts of zoning. Zoning is organically what we refer to as a police power function. The states in the United States are the level of government that enjoy the police power. It's a power of the sovereign government that the states took on when we separated ourselves from the English crown and then we formed the national government. We have this inherent police power. It's the power for state government to adopt regulations and programs that are designed to protect and advance the public health, safety, morals, and general welfare. Those are kind of magic legal words. And if you pay attention, you'll see them stated in our zoning code here and there because it's a recognition that this is a police power function. But what we learned from Clements and other decisions around the country is that that power in particular, that police power has to be delegated specifically by the state to the local unit of government. And so in Michigan, that means it's dictated by the Michigan Planning Enabling Act and the Michigan Zoning Enabling Act. It provides the power for local governments to zone, but it also includes within those acts preemptions, things that we can't do, things like we cannot zone out mobile home parks. That's specifically prohibited in the MZA, and there are some other constraints on what local governments can do through their zoning that are spelled out in the MZA. And then also having empowered local governments to engage in planning, the Michigan Constitution and the US Constitution and those provisions in the MZA are designed to prevent local governments from abusing its citizens. So protections baked into the system from the very start. In Michigan, zoning is permissive. Local governments are not required to zone. But if they want to regulate land uses in particular places across districts, they have to do so via zoning. And if they want to zone, they have to follow the MCA process and the authorities and the constraints in doing so. So when communities are thinking about what they're doing with their zoning code, they have to think carefully about what they're allowed to do and what they can't do under Michigan law. planning and zoning enabling law. Okay, this is stuff that I know the planning commissioners on this call all know, so I'll go through it pretty quickly. But this is the standard approach that's used in the vast majority of states around the country because of the historical origins of planning and zoning. The zoning code, unlike a lot of laws, actually has two parts. It has a text, the text that lays out the regulations, and then a map that fixes those regulations spatially in the city on districts. Most regulations don't have a map. It's just a law. You can't do this or you can't do that. But in a zoning code, you have to have a map to tell you what you're doing. So step one is to divide the jurisdiction into districts and put them on the map. Step two is to identify allowable uses in each district. Traditionally, there are uses what we call permitted by right. Things that you know you can do in this district because they're permitted specifically in that district. There's also a class of uses that are considered accessory uses. So historically, those were the carriage houses in the back of the house. We zoned areas for residential homes and nobody thought to mention, well, of course you can have a carriage house in the backyard too, because you need to someplace to put your horse. Now those have become garages and things like that. Most zoning codes today, like Ann Arbor's, specifically tell you what are allowable accessory uses. The key function here is the accessory use has to be secondary to the primary permitted use. Conceptually, there's an important distinction to draw there. And then finally, most codes include what generically you can think of as conditional uses or under Michigan law, they're called special exception uses. These are things that are probably okay, but we wanna make sure that they're done in a way that's not harmful. I'll talk about that a little bit more in a minute. Step three, once we've got our allowable uses, then we establish some form-based standards. We're gonna set height limits, setbacks, massing, other things, maybe landscape parking requirements. These are all the things that kind of manage the form of particular places as they grow and develop over time. There's a lot of variation on these things across communities and across states. And then you implement. You check for consistency. When somebody wants to build something, you administer. If you have conditional usage, you administer those approvals. You administer site plan review. Site plan review is just an enforcement mechanism. It's a way to check and make sure that the developer or the property owner is doing what they're allowed to do and not doing what they're not supposed to do. following standards on things like natural features and such. And then you also check against other applicable laws. So the zoning code kind of overlays with other laws that you have to attend to, like floodplain ordinances that have connections to national floodplain insurance programs and regulations and such. So those are kind of distinct ordinances. They can either be baked directly into a zoning code or sometimes they're separate ordinances that overlay on top of them. Historic districts or historic districts in the state are actually created and established and administered under a separate state law. They have their own state status and that status kind of overlaps with the zoning code. And you have to, the community has to follow all of those things. Same thing with subdivision. If you're going to split a parcel, a big parcel into some number of smaller parcels, you might end up tripping subdivision requirements, which are designed to make sure that essentially you're providing all the right infrastructure with those divisions. So again, when a community goes to implement its plans through all of these different kinds of regulations, they have to make sure they're attending to all of them and the most constraining regulation that plays out is the one that ends up controlling on what you can and can't do. And then most zoning codes also provide mechanisms to give some flexibility. The basic zoning scheme is pretty clunky. And so early on folks recognized, zoning advocates recognized that we need to provide for flexibility to things like planned unit developments and variance procedures, which gives some freedom that way. I'll talk more about that in a minute. And then finally, once you've adopted your zoning code, you go back and you amend it periodically. Either a text amendment, which we call a text amendment, or if you amend the map, for some reason, that's historically always been called a rezoning. It's an amendment to the code. Because you're changing the legislation on either of those two things, only the city council can do that. OK, so this is a diagram I use in my planning law course. It's really complicated. I threw it in here because I wanted to emphasize how complicated this planning process really is when you back up and think about it all. In the bottom left-hand corner, there are a bunch of us citizens. We elect a legislator to represent us. There are too many of us doing too many things to all self-manage each other. So we have a city government that does that through a city council. Planning and zoning has this weird extra set of actors that you don't have in a lot of other policymaking schemes. We have a planning commission, which is a quasi public official, quasi expert, quasi local resident body that exists to provide counsel to the legislature on how to do good planning and zoning and also provide some administrative functions. And then we have this quirky internal quasi-judicial entity called the Zoning Board of Appeals, which exists to sometimes hear appeals on zoning decisions, administrative decisions, and has the authority to give variances. So a variance is basically permission to do something that the zoning code otherwise would not allow. You either can sometimes get variances from the dimensions of a piece of property or the use. In Ann Arbor, in a lot of cities and a lot of townships around the state, you can't do use variances because that's about basically giving an appointed body power over setting districts, which should be the power of the legislature. We shouldn't be giving that to an administrative body. So this diagram just shows the process you go through to adopt a map. adopt a zoning code, a text, create those districts, implement them, maybe provide variances if it's too clunky, maybe amend them over time through text amendments or rezonings, and then maybe end up in litigation and how the courts are going to treat how the government is doing what it's doing. And here again, I want to emphasize the best use of a plan is to think through carefully what we're trying to do have that create the rationale and the justification for what we're doing. And that makes it more defensible in litigation if you have local residents who aren't happy with what you're doing. And usually with land use, you do. because you're affecting people's residences and their living situations, and it's really hard to get everybody to agree on where we should be going, so let's at least make sure everything is heard and do it in a fair way. Some traditional concerns here. Here's the main motivation. Local governments have police power duties to protect the public health, safety, morals, and general welfare. They shouldn't relinquish those public duties. At the same time, they shouldn't be able to use those powers to abuse private property owners or developers or go too far. Historically, I already mentioned this, one of the general concerns was maybe there are some uses that are okay, but we're worried if they're done poorly, they could create problems. Those are called conditional uses. They're specified in the zoning code. You can do this as a conditional use, but you have to show the community that you're going to follow some standards and you're meeting those requirements just to make sure that it's not going to be done in a way that would create a nuisance like harm. A zoning code has to have It has to tell you what those conditional uses are. It has to identify the standards you're going to apply and a process for making those decisions. Another concern early on that the courts raised was this concept of spot zoning. So we ought to recognize when you up zone, when you allow more intensive use of a property in general, not always, but you're probably increasing the value of that piece of property because you can use it more intensively. If you have a sea of really low intensity use, like maybe agricultural zoning, and you pick out a parcel right in the middle and up zone it to allow a commercial activity, you've probably greatly increased the value of that property. Are you doing that because it's providing some public benefit? Or did you just give a huge undeserved windfall to that property owner because he happens to be a friend of somebody on the planning commission? That's the concern of the courts. Things are spot zoning. That concern nowadays really only comes up if there's just no clear public benefit. You might actually want to have a commercial district in the middle of an agricultural district if that's where the gas station is that all of the farmers need to come into to get gas. So spot zoning is really a concern when there's no reasonable justification that's benefiting the public for what's going on. Another concern of the courts early on was we, the city, shouldn't be niddling away our duties by negotiating with developers, and we shouldn't be abusing developers by making them provide public infrastructure that we should all be providing as the larger community. That's just asking too much. So it's kind of this combined concern about being reasonable and fair for everybody and not being abusive to developers. Early on, that made more sense. Today, when we have developments going in that have a huge impact on infrastructure demands, almost immediately, courts have recognized, okay, maybe there are times when you can engage with now, we don't call it contract zoning anymore, We call it conditional rezoning. We're going to rezone this property on a condition that the developer do something. So Michigan and the Michigan Zoning Enabling Act allows that the state legislature recognize there's some value in that. but it's still worried about cities abusing developers. And so what they added was a provision that only the developer can offer conditions because they recognize if we offer a condition, that'll mean our rezoning will happen and we're okay with that and we're willing to take the condition. City officials should not be demanding conditions of local developers when they do a conditional rezoning. And the way these conditional rezonings usually play out is we will develop our project with a condition that we will contribute to a new turning lane on the highway, because that's just too much of an infrastructure expansion that our project is really causing and it's reasonable for us to add it. Or quite often the developer will say, I know I want to be rezoned to commercial. Because I want to put in a coffee shop, but I know your commercial districts also allow gas stations, and I know you don't want a gas station there. I will accept the condition that I will only build a coffee shop, no gas stations allowed. That gets written into the zoning code. So now it's a commercial district, but it's a conditional commercial district. The condition runs with the land. It's always there that gas stations will never be built. Why would a developer do that? Because they don't want to build a gas station. Why would the city do it? Because they want to see the coffee shop, but they don't want to rezone it to allow gas stations. So it becomes that compromise. And it can work pretty well if you follow the rules correctly on how to do it. Okay, some basic precepts. Given all of that background on how this works, we should always be zoning for public health, safety, morals, and the general welfare. That's our police power mandate. We should never be zoning for personal benefit of individual community members or property owners. Zoning does not exist to increase private property values or to protect private property values. as its sole purpose. That may be a valid ancillary benefit, but zoning exists to advance the larger public welfare. And we always have to be thinking, how do we balance out that notion of public welfare, private interests and public interest together? We always should zone by use, not by identity. That comes from a core US governmental precept that the US government and state governments and local governments are governments of laws. They're not governments of persons. We don't make decisions based on who's actually going to live in that property or who's going to be residing in it or whatever. We only make decisions based on use. except there's a condition. Local governments cannot regulate higher levels of government that would violate the Supremacy Clause if we tried to violate or regulate the federal government. And there's a parallel doctrine in state law. Local governments can't regulate the state because in Ann Arbor, the University of Michigan is a state entity created by the Michigan State Constitution. The courts have held that it's an entity that's immune from governmental regulation. So in our case, that's why Ann Arbor cannot regulate the University of Michigan. It's baked into this concept of excluding, of preventing local governments from regulating, in a sense, higher levels of government. We should regulate based on form more or less, but we need to recognize there's variation in community preferences. You get into trouble if you start to really over-regulate on form. There are communities that have adopted what are called form-based codes, which really focus a lot on form-based standards, setbacks, the kind of facades of buildings. And the kickback to that is not everybody likes, you know, what's beautiful to one person is the ugliest thing in the world to another. It gets really hard to come to agreement on that. So it's problematic when you go down that road. We should acknowledge and protect existing residents and properties, but to a point recognizing that we also need to understand that there will be change and that we have to accommodate it and we can't just freeze communities in amber. It doesn't work. It's not good for the community and it's not the way zoning and planning was designed to operate in the first place. And that means that folks need to recognize zoning is not a contract. that was engaged with residents in a community just because your property is zoned in this in another way doesn't mean it will never change because if we adopted that law we would be freezing everything in amber and be unable to deal with new problems as they arise so zoning does create expectations we need to be mindful of that we need to be mindful of the way zoning changes will affect the current residents but it's not a blueprint contract bound decision that means that nothing will ever change moving forward Okay, I'm getting close to finishing off here. This leads to some unavoidable and challenging trade-offs that communities face when they engage in planning and zoning. And here I'm harking back to the famous author of Scott Fitzgerald. This is a quote attributed to one of his works. The test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time and still retain the ability to function. I think our charge, planning commission, the charge for planning commissions and for city governments and city councils is to recognize we have often two competing, totally rational, reasonable concepts that we have them in mind at the same time, but sometimes they just clash and we need to figure out how to reconcile them and still retain our ability to function. Here's some of the ones that I think are particularly difficult. The first is we have to recognize that there are different kinds of fairness. We get fairness by creating a set of rules that spell out, here's what you can and can't do, and everybody has to abide by them. But fairness also comes from the recognition that sometimes there are cases where that just doesn't work. There's something unique about my property or my situation that that standard rule is unfair to me. So we're constantly trying to navigate between these two different concepts of fairness. This is the way the rule works. Everybody should follow it. There's a place where it doesn't really work. It's not fair. It's not doing what it was designed to do here. We need to provide some flexibility. The downside of providing flexibility is the more that you do that, the more you're opening the door for governmental abuse. You're either giving governments the ability to give favors to people they shouldn't be giving favors to or to unfairly discriminate against them. So we don't want to go there. If we're going to go there, we need to make sure that It's really clear who's gonna make that decision, what's the process they have to use to get there, and what are the standards they have to apply to make sure that's fair. So that's one area where we're constantly navigating and juggling two perfectly reasonable notions of fairness that can be in conflict with each other. The second is we need to be promoting efficient, democratic decision-making. So here, the tension is between making efficient decisions and always striving to be as democratic as possible, fully engaging the public as much as we possibly can through all processes. But we have to be careful not to relitigate every aspect of every decision at every stage of the process, because that's a recipe for just the whole system falling under. So this goes back to the point I made earlier about we have to necessarily segment decisions as they get made over space and time and decision makers. And it kind of explains that really complicated web of institutional structures and decision measures I put up earlier. But that can be really hard. It's really easy when you're in the system and you've been working with it for a while to forget how complicated that system is. So you always have to remember how complicated that is and kind of make sure people are following along with why you're doing what you're doing. And you also have to make sure that you're giving the public a chance to engage, to hear what's going on and where helpful and meaningful to provide engagement. But again, we have to do that in a way that doesn't just bog us down and relitigating everything all the time for every decision. Another constant tension that we're dealing with is figuring out what makes for a desirable and healthy community. And that really boils down to planning for and zoning for the folks who are already here at the same time that we're planning for and zoning for folks who are to come. We're always planning for the future. Folks who are here and want the community to stay exactly the same way it's been the whole time they've been here aren't really thinking about the future too much. How will the people who are coming here or who will be living here and transitioning in their lifestyles be able to work in the city? So there's a tension there. We need to both be mindful of the current folks, and we need to be mindful of who's coming in the future. And especially today, we need to be thinking about safeguarding community character and natural features in an age of climate change and stormwater and tree. Tree canopy is really important. But we also need to figure out how to weave into that accommodating new growth, especially new affordable middle income housing and all the amenities that come with that. And then we need to, in the process of doing that, make sure that we don't make existing problems worse by aggravating stormwater problems or heat islands or carbon emissions. There's no one single silver bullet answer that promotes all of these things. Getting to any of them requires, in a thoughtful and meaningful way, interweaving and reconciling all of them at the same time. And then the last point I wanted to make is mixed motivation decisions. We can reach consensus on what the right thing to do is, Because different people have different reasons that all can come together. Yep, this would be a good thing to do. But quite often we don't agree on why that would be a good thing to do. We live in a pluralistic society. We have to give voice. and concepts. And sometimes people want to do things that we can say that's not a really good reason. I don't like your reasoning. I think there's something sanctionable about that. But it turns out what they're promoting actually is a good thing for the community to do based on other arguments. So we're constantly having to navigate what are we trying to do here and why are we trying to do it? and not necessarily throw good ideas out of out on the curb because we don't really like why somebody we're disagreeing with is promoting it if it's still a good idea at the same time maybe there are times when the reason that this is happening is so bad it's really not a good thing to do so we're constantly having to navigate those tensions so those are unavoidable trade-offs I talked really fast. This was a whirlwind chase through planning and zoning, particularly in Michigan writ large. The challenges we face as a city moving forward is trying to figure out how to navigate the transition from what Ann Arbor was in 1880 laid out keep all of the as much as we can the desirable things that we love about the city but recognize we're moving forward into just a different world with different expectations different needs how do we make that transition how do we use planning and regulation and infrastructure development to do that that's my talk i'm going to stop thank you and i'm happy to talk about that or if you guys are just tired of it i'm ready to stop talking to you

No, I'm sure this group has some questions. So we'll start with questions from the commission and we'll start with Commissioner Adams, then Commissioner Dish. And then after we have a bit of a discussion, we'll have our last question. public comment. So that'll be an opportunity for the public to address the commission. And you could ask your questions there. And we'll give Professor Norton an opportunity to respond to any questions that he may receive from those that are calling in. We'll start with you, Commissioner Adams.

Yeah, so first of all, that was great. And thanks for putting it together. I learned a lot. My, I guess, and I want to preface this question as I'm not asking you for legal advice. I'm not the city's council. I should say that. I'm not the city's council. All of the normal caveats apply. I just wanted to get your take on something that I've wrestled with since being appointed to planning. I tend to approach planning planning potentially incorrectly through the work that I do as part of my day job where I work with federal agencies from nine to five. And federal agencies are, at least the ones I work with, are not set up as independent agencies, meaning they're all cited within the executive branch. They are all APA agencies. They are created by acts of Congress and they are highly politically accountable. They're not set up to be independent in any way. So when the legislature acts, they react. When the executive branch political leadership changes over, the sliders on the control panel start moving very quickly thereafter. That is in some ways my mental model for what we're doing. We provide advice on certain issues to counsel. We act administratively where we're empowered to do so. But at the end of the day, we are not an independent body. We take direction from the legislature and are, at least in my mind, fiduciarily obligated to execute when we get that direction. Is that your understanding for the whole?

It's pretty close. Yeah, it's pretty close. I would qualify it just a little bit. So planning commissions, I think, are in some ways less powerful than our most federal agencies. So federal agencies, especially independent commissions, although that's weakening now with recent Supreme Court litigation. But federal agencies are often given rulemaking authority, like the US Environmental Protection Agency can adopt administrative rules that have the force of law. Planning commissions don't do that. We are created with less legal authority than what a federal agency has. We only make recommendations to the city council when it comes to adopting a zoning code or amending the zoning code or the map. And sometimes we have enforcement authorities, like when we can approve a site plan, but we're not making rules there. We're just administering it. that that exists to create some efficiency in the governmental system so that you have to bounce all the way up and down every time you're making a decision. So we're less powerful than a federal agency like you're talking about. At the same time, we're less politically connected as well. So when the administration comes in in a new government, they can replace all of the agencies except for the civil servants. Maybe that'll change too soon. So in a way, the president has more authority to kind of reconfigure the administrative state. Planning commissions are most, I think, or at least it's pretty common to follow the model Ann Arbor follows, which is the mayor recommends to city council appointments and then they're made and then they continue to go on while in good service, that provides some political arms length so that we're not connected to the political whims of the city. We exist, our planning commission exists to provide technical expertise And to provide some administrative support by making administrative decisions, but shouldn't be planning commissions were never intended to be following the political whims and kind of making decisions based on personal political preferences that were supposed to be this kind of technical expertise body. At the same time, the MDA also makes clear in the MPA planning commissioners have to be appointed from the community and somewhat representative of the different interests in the community. So there's a full representation of those different interests. So I think, Commissioner Adams, in a way, your model is pretty close, but it's actually we're kind of a unique beast. We're more technical. We're connected to the community. We shouldn't be political. And we don't have much power in the sense of making final decisions. It's really we're counselors to the city council. They're the enabled entity that makes those key decisions. Does that make sense, Commissioner Adams? Yeah, it does.

Thank you. Council Member Dish.

She's going to tell me what I got wrong, Council Member Desch. No.

I did have a couple of questions, but I actually want to continue this very interesting discussion. Yeah. And it was interesting because in your response to Commissioner Adams, you specified something that I was going to... I was also thinking about, which was that the planning commission advises council on the basis of technical expertise on the planning commission. And it takes, I would say policy direction from council. And I think it's really important to keep those two things at least distinct in a kind of ideal model, because I know that those things are going to get blurred. And sometimes council is going to say technical things. And sometimes, you know, I think in our discussions, Planning Commission does edge over into thinking what are the better policy directions.

And that's, by the way, I would say that's appropriate.

Yes, no, I don't think that that's, I don't think that that's wrong. But I really liked that you specified that. But I think that I wanted to There was something that I felt like I wanted to add. I think it is really important that planning, I think it is important to also realize that planning commission has the time and space for decisions on land use that council as a body does not specialize on land use.

Exactly. That's a really good point. I didn't make.

No, it's fine. And council members tend to specialize in different areas of expertise, either because of the commissions that they sit on or because of the interests that they bring. And this is the only body that regularly sits in chairs longer than we technically need to. in order to let a complex question at least get some of what it deserves in its complexity. And I think that that's really important. And I feel very strongly about the need to respect. I mean, council can disagree with planning commission. It has the last word. and it can give reasons and say why, and then Planning Commission can think about, okay, that's something that's a strong commitment on council, that maybe we didn't see, maybe we don't agree with, but we should probably take that into consideration too. So it's not that they're not allowed to disagree, but I think that it needs to be respected that this is the body that takes the most time to look at how complicated and also how very difficult those trade-offs are that you mentioned. I was so glad that you brought up trade-offs as kind of inherent in planning because there are so many things going on. There are uses and there are forms and there are social relations. And we cannot say that it's wrong that there are social relationships and there shouldn't be. That's inherently a part of zoning as well. And there's also more. And so there are always really complex trade-offs. And this is the body, again, where we give those things their due in ways that counsel will not. usually have the time only it very you know with a comprehensive plan yes everybody you know the whole council then became like a planning commission it started to think like a planning commission but anyway so i just i sort of wanted to continue this discussion a little bit or add to it and see if it sparks anything for anyone else to say

Yeah. Can I just add, I'm glad you brought that up. That was the reason for the creation of planning commissions. The early creators of planning and zoning authorization recognized this land use stuff is so controversial and contentious, and it's going to be looked at closely by the courts, a la Clements v. McCabe. We need to have a special body that can really take the time to dive in and work through these difficult problems. to provide good counsel to the city council or the township board of supervisors or whomever. And there's always been this tension. That's another tension I could have added to my tensions and trade-offs is between this expertise and the kind of policymaking political aspect of it. I'll just say planning is inherently political because we're, politics is always making decisions about how we're going to regulate the city government, you know, you can't avoid the kind of political aspects that I don't mean politics in a log rolling way, but the core attributes of what political decision-making is. So as a planning commission, we need to, it's appropriate for us to think about policy meanings and values. That's what the plan talks about, but we have to bring with it some arm's length reasoned thought and technical expertise to provide counsel to the community. And that's exactly why the planning commission was created. And I should point out here, I would be terribly remiss if I didn't mention you need to have really excellent planning staff. And like Deputy Manager Kelly and all the staff that we work with just makes a tremendous difference. And they have a hugely important role to play in all of this as well, as we learned through the comprehensive plan update process. So there's a role for everybody to play. It's a It's a dance and it's a negotiation, but it's a really complex system and there's just no way that you could do it without these different entities working together and collaborating in that endeavor.

Thank you. I was going to ask Commissioner Lee if you want to speak because I know you had a hard stop at eight. So I'm glad you raised your hand. So go right ahead.

Thank you. Thank you. I want to say, Professor Norton, it brings me back to UP 513 days. I was wondering if we'd have a quiz at the beginning of class.

Oh, I didn't get a quiz.

Yeah.

For everybody that's listening, his class always started with these quizzes that counted a lot towards your grade. And I remember all the memos on nuisance actually very vividly. Two things. First of all, I recall... Euclidean zoning, like the village of Euclid versus Ambler Realty being kind of the seminal case. It was interesting that Clements preceded that. Maybe I wasn't a great student, but I don't recall Clements being the... And I guess... In essence, the Euclid versus Ambler was the enabling. Hey, you need to establish a general nexus between health, safety, general welfare that allowed Clements is the case that struck.

I'll jump in and say Clements was the case where the court ruled you have it has to be enabled by state statute. So one was talking about commissioners talking about Euclid v. Rambler, which is a U.S. federal case. It was the first case that asked the question, even if the states allow it, is it still constitutionally valid under the U.S. Constitution as against due process claims primarily? And the U.S. Supreme Court said yes. So now we know from Clement's decisions and other state decisions like that, it has to be enabled. And we know from Euclid, it's okay if it's not abusive and that opened the floodgate. It was that decision that gave everybody comfort. Okay, now we can start planning and zoning because the US Supreme Court has said it's not automatically going to violate the US Constitution. But forests of trees have been felled since then in legal decisions trying to hammer out what can you do and what can't you do and when are you being abusive and when you're not being abusive. So you're remembering correctly that was a really key case. It answered a slightly different question.

Okay, gotcha. Thank you for that clarification. The thing in your presentation that stuck out most to me was about the idea of inclusivity and ensuring we have great public participation, but also creating systems that don't cause us to relitigate everything. And so what kind of organizational processes would help to enable? And then this is a question, I think, for the broader group to kind of to say like, hey, we've actually talked about this. We've engaged. Here's the feedback. How do you create systems in which you avoid the kind of religious like opening up the same issue kind of over again?

How do you sort of start off and then see if somebody wants to jump in? I think the the public engagement kind of protocol and schedule that the planning staff worked out, Planner Bennett, kind of distinguishing between different kinds of decisions where we really have decided this at this level, we don't need to relitigate it again, but there will be decisions where we need to get some more public input and make sure there's engagement that way. I think creating that kind of a protocol that kind of lays out that different array of decisions as we work through them. and lets everybody know why we're doing it and how we're doing it and how it's going to work. I think that's a really good first start. And just letting people know we're in this difficult quandary. We can't keep litigating every decision every time everything comes up. We have to sequence it somehow. At the same time, there will be decisions we make that really have a huge impact. We need to hear from folks to make sure we're not missing something. So I personally liked the way the staff, planning staff, was steering us as we're getting ready to do the zoning code update and the kind of program they're laying out to have a kind of reasoned public engagement protocol. That's my thoughts on that. I'd be happy to hear from others. Yeah.

Thank you. yeah if anyone else wants to weigh in um and commissioner bastiona you keep moving around my box i don't know if you are raising and closing your hand uh because it's like moving you uh so okay uh if anyone else wants to weigh in uh this would be a time we'll go right to commissioner weberby i think kind of um following up on that topic of like

when we talk about, and this is something that comes up regularly, are things like, oh, but you're ignoring all the sustainability stuff because, you know, we're saying, oh, we're going to use existing framework for sustainability. And if you're like, oh, you've taken it out of the plan or same with like, we're trying to make processes go more smoothly and not revisit and re kind of litigate at every point. But that does re that does in people's minds, remove points of discussion. And how do we, I mean, this is just sort of a free form. I don't think that professor Norton necessarily knows for sure how we, how we do this. And I love, I love, I was so excited about this and this was great. Like this is super, these are super interesting. And I also think that this would be good for the zoning board of appeals. So, but you know, how do we, how do we say, okay, we're not, you know, we are not ignoring people. We're not ignoring existing policy. We are rolling it into our plan, but it doesn't, every plan doesn't have to state every piece of every policy that the city has. If we refer to another plan, that's legitimate. If we, you know, remove this point of public participation, it doesn't mean that we're removing all the public participation. And I don't, I don't know how to make it. I mean, sometimes people are just going to be unhappy because it's change and it's not what, or they, but, but are there ways of, really ensuring, or at least, you know, making people feel like, like, how do we make sure those touch points come forward and that people feel as comfortable as they can with what we're doing, even if they disagree. I think the point of like, sometimes bad people make great points and sometimes good people make bad points. And like, how do we, How do we help people feel as comfortable with this as people can, I guess?

That's a great question.

I'm happy for others to- Thank you, Commissioner Lee.

I think one way I'll just kick off is just to kind of periodically remind people we've got this system set up. We are taking account of natural features. We are taking account of stormwater. It's kind of baked into the way we do development review processes. Maybe there are times when we should revisit those if they're not working the way that we think they are. So we need to constantly be kind of transparent about why we're doing and how the process is working. But the other thing to recognize is a lot of people, and you all know this better than I do, those of you who've been on the Planning Commission for a while, a lot of folks... only heard about the planning commission in this whole process because something was proposed next door to them. And so now they're trying to learn the whole system in a few days to come up to speed and it's really convoluted and complicated. And so we can't constantly be giving a lecture at the start of every planning commission meeting to explain how the whole system works, but we can't be dismissive either of people's concerns out of hand because they're just now for the first time learning that there's a planning process and a zoning code. And so that's just, That's something I've known as a professor for years. I've really taken that to heart being on the planning commission for the last two years, just how much of a challenge that really is. I should also say the technical expertise comes in knowing this larger system. It's been a great learning experience for me, great in many ways, the details and the complexity of Ann Arbor zoning code and keeping straight of how it all fits together. I've been constantly learning from all of you and my fellow planning commissioners about what's going on in Ann Arbor and how this works. So even for someone who's been studying it for decades, there's still complexity baked into the system that is just really hard to work around. So I'm kind of rambling a little bit. No, that's fine. That's a really good question.

I think one thing I would contribute here, Commissioner Weatherby, is that And it sort of dovetails, I hope, off of what Professor Norton was just talking about, like not having to have a 40-minute presentation at the beginning of every meeting. But maybe we could work on a quick guide to planning. Is this your first meeting or your second or your third? Here's what we're going to talk about tonight in these kinds of categories. Here's where you can find the information. Here's why – This is called a public comment and a public hearing. Here's why we don't talk back to you. Right. So some of the stuff that we rehearsed when we went through the comprehensive land use plan with folks or, you know, just at the start of the meeting saying, hey, are you here? Do you have questions? And the thing that we did in the middle of the year, which I hope we can schedule again, where we take one of our work sessions and we just have an open forum with the community and we come off the dais and we sit in the audience and we just have a conversation. That worked, I think, really well. And for a number of people who showed up to that, they were like, this was great. I could ask my questions and you were able to freely answer them. And it wasn't like deterministic to a decision for a developer or a project. And so there was a bit more freedom into that. So I hope we can. begin a process in this next year of continuing to demystify a process that I think a lot of folks just take for granted. Here's this thing. It exists. It's always existed. It exists in law and it's operating the way it should. But that doesn't mean that new people coming into it have complete understanding and mastery of all of that.

Yeah. And I think one of the things that we deal with in tech support a lot is, you know, the person you sit next to on the plane has all the answers, but your IT group does not. And I think, you know, that sometimes I think, you know, it's like, oh, look at this cool thing. We could just do X or we could just do Y. Well, it's not that we haven't thought about that. It's that There's this long process and we've talked to a lot of people and a lot of experts and we've already come to the conclusion that that's not a workable answer or something. But then people feel dismissed because, you know, they talked about it at dinner with someone and it sounds like a really good idea. And it may be a really good idea, but just not in the context of I mean, a lot of things aren't legal in the state of Michigan. You wouldn't necessarily know that. like people sitting around a table, it sounds really reasonable. And again, it may be really reasonable, but just like not legal in the state of Michigan or, you know, and I think that's hard because people do have Answers and they're often reasonable answers, but just not within the context of a larger planning scope.

So, yeah, thank you. Yeah, thanks for those reflections. All right. Commissioner Bastiani, I am going to call on you now because I don't think we've heard from you yet. So any questions, reflections, comments before we open it up to the public?

Absolutely. Yeah. I concur with a lot of the other commissioners' comments. I'm looking at my notes. Yes, I wanted to say also thank you so much for this whirlwind of a presentation. There's a lot you had to cover, and I appreciate all of the information and context that you were referencing. And I also think this is a nice... document that I know I will use as a springboard as I do more research and learn about things. So I have a few bullet points, we'll ping around. Some are questions, some are comments. So one is early on, I think you were, I forget exactly how you were phrasing it, but you were referencing how both economic and racial segregation were a quirk. And I think one thing I'd like to respectfully counter, especially for folks who might watch this, is this idea that I think there's a growing body of evidence that a lot of zoning was not done as an accident to exclude racial minorities and folks of lower economic status. I think it I think there's, like I said, a growing body of evidence that that was the intent. And so I think just for folks who might be learning, as I have learned over the past few years, it wasn't necessarily accidental. So that was like a comment. And then another comment is, I think it's slide 11. The really complex image that you had made, I really appreciated it because I think as I was learning the role of planning commission, I didn't necessarily realize like when I was making public comment months ago just how intricate this web is, and I think it's really helpful for people of all types to learn that there's a lot going on, and this is like a simplified graph. So I really liked it, and I think it helps emphasize just how much this complexity It's both challenging, but it's also kind of like a symphony when things are going well. I had a question, and I'm not a lawyer, so who knows what this will produce, but I was curious about the phrase land use and land stewardship. I feel like as I've been reading more documents, land use comes up a lot. And so I wanted to ask... kind of a meta question around our relationship to the land, our role as planning commission, and more specifically, like, where do we fall, especially in a legal framing of the concept of like land use and land stewardship? I think of them as different categories, but I'm not sure as a member of a planning commission where that actually is. And especially as a planning commission, where is our legal framing? So I'd love to hear your thoughts.

Yeah, so can I go back and comment on your first comment about the role of race? So I didn't, quirky was probably not the right word to use, except that legally the very earliest justifications for zoning were nuisance abatement. Basically the idea that we're getting through technology and industry and commercial activities, we're getting too many conflicting land use conflicts that we need to start rationalizing. And so legally, that was the reason, nuisance abatement. But you're right, early on, local officials and even state and higher officials recognized, oh, we can use this to do other things. We can do social engineering. And it was very much about socioeconomic class segregation. And it was about race segregation. And there were definitely communities that adopted laws that prohibited, there's a famous case, Buchanan, where it was in Kentucky, there was a law that said, basically, if you're black, you can live here, and if you're white, you can live here, and never the two shall mix. And finally, the Supreme Court struck that down, that no, that violates equal protection. So maybe now in our laws, we don't come out and blatantly say that, but we construct the laws in ways that have exactly that same effect. And there's a lot of litigation. That's racial discrimination by de facto segregation or intentional segregation. It's a really fraught area of the law and complicated. And frankly, it's one of those places where when people say, I'm worried about my neighborhood character, that's a perfectly valid thing to worry about. But when they say, I'm worried about my neighborhood character, that's what folks were saying back even in Euclid v. Ambler to justify, I don't want folks like them living in my neighborhood. It's one of these statements that has this incredibly fraught background to it that if you know the history is really problematic. So I kind of, for the sake of getting through this quickly, I glossed over a whole lot of nuance. But that was really worth bringing up. So thank you for doing that. The whole land use thing, that's a whole other lecture by itself. But I'll just say quickly, land use is the more neutral term. It's use. Some people see land as an economic asset. Some people see it as a community sacred place, maybe a park or a chapel. Some people see it as part of our foundational life support system. And so any of those three things could be land uses. When you talk about stewarding land, it's usually environmentalists or cultural folks talking about protecting that particular aspect of the landscape. So I think of land stewardship is usually used in an environmental context. We're trying to make sure that we protect those important natural components or elements of the landscape. Land use tries to navigate between all of those different notions simultaneously. Does that make sense?

That does. Thank you. So this isn't a perfect translation, but I'm thinking of it like land use is more of an overarching umbrella and land stewardship is one part that might fall under it.

When I hear land stewardship, that's resonating to me. Somebody wants to protect the natural features or keep it ecologically viable. When I hear land use, it's more neutral. It's like they want to do something with it, whether it's protect nature or build a house on it.

Sounds good. Thank you. And then my last question was also like a broad one. So I really appreciated that you talked about how the types of zoning that has changed and how I think you'd use the phrase like organic, like how did these early pre- modern zoning cities arise and the form in which they take. And so there's like this temporal comparison. I was curious if you want to riff on or maybe a future talk. I would love to know more about the history of zoning and planning in non-U.S. areas. So not just like Europe, but including like Canada, Mexico, the rest of the world. I would love to know how they are doing that. And that is that's a whole thesis. That's a whole class. Yeah. But I would love to, if you ever share out just like a quick summary, whether now or in a future one, I think that would be really helpful because I've been learning more about, there's like a mayor in, I think, Columbia who did a lot with like mass transit and just seeing how different cities reckon with these same questions. I think it would be really fun to kind of learn more about that.

I would love to have that. conversation i'll just say quickly i'm part of an international academic association on planning on property rights that's clunky so it's planners who get together from around the world who are interested in law and lawyers who are interested in planning and what i've discovered from that is we're all struggling mightily with the same problems we have different institutional structures we've created to try and get there and we're all and they're they're quirky my use of the word quirky again they're all kind of unique But at the core, we're all really struggling with how we balance these kind of stewardship and economic development and social relationships. How are we using regulations in ways that are maybe good to deal with social relationships or bad? And then that gets into conversations about what does good mean and what does bad mean and how do you deal with that? And so... Wow. I mean, this sounds so cliche, but we're all so much the same, and yet we're all so profoundly different. That's a very powerful description.

Exactly. Well, thank you. Those are all of my comments right now. Yeah, thank you so much. This was great.

Thank you.

Thank you.

All right, we'll turn to our connected participants to see if anyone has a question or a comment. And if it's a question, we'll see if Professor Norton is willing to respond, which is a little out of our normal process. So we'll turn it over to Manager Kelly to manage the hands that are being raised.

Adam, just give us, you have three minutes to address the Planning Commission.

Hi, Adam Jaskiewicz here, Las Vegas Drive in the 4th Ward. I first want to just thank you for this. It was, as I was expecting, a really good presentation. I do have a couple of questions. First of all, you mentioned that one of the kind of precepts of zoning is it's for the public health safety, general welfare, and also morals. And I think that health safety and general welfare are pretty, you know, we can all kind of, understand exactly what that is but maybe you could expand a little bit on the concept of morals in zoning um and another another thing is i would just um i'd like to um know what are some like books that you would recommend or other reading materials on these topics thank you thank you

I'll say quickly on morals. That's interesting that you caught that. So the shorter quip is the police power is the power to protect public health, safety, general welfare. But morals is the larger issue. And where does that play out in a planning and zoning scheme? Adult businesses. Why do we have regulations that prevent people from having adult businesses? adult businesses in certain parts of town, or we limit them to certain parts of town, what's the justification for that morality? That's usually how it gets pulled in. But a lot of the things we do have moral content to them, and so it gets pulled in that way. But it's primarily from adult businesses. In terms of texts, I wasn't prepared Because the texts I use for class, we couldn't test this, are pretty dense. They're not for general reading. I'll come up with a list and I'll share that with, and maybe I'll confer with Manager Kelly because I bet the planning staff. Oh, yeah. So there's a good zoning in the USA is all about the unique quirks of American zoning and how that compares to other countries. There's a handful of good reading texts. Maybe we can come up with a list.

If you would like to add a final slide, for example, to your presentation with recommended reading, we could republish that. We have a little bit of a, it's not a huge window to republish.

uh attachments before um they go live but just let us know how long you need okay yeah um and you can always put it in the public packet if you miss the window because then and we'll just and if you put it in the public packet on a regular meeting just uh during um um communications from commissioners, just note it then, because then that can alight for anybody who was looking for type of thing. So you got two options.

Okay. And if we do the guide that you were talking about, Chair Weish, that would be a good place to add a list of reading materials too.

Yep. That could work. All right. It looks like we have another hand.

Call number ending in 134. You have three minutes to address the Planning Commission.

Thank you, Ms. Kelly and Chair Weiss. This is Ken Garber, Second Ward. And thank you, Chair Weiss, for giving the public this opportunity to ask a question and maybe get an answer, even though it's out of protocol. And thank you, Commissioner Norton, for the outstanding presentation. You know, beautiful clarity and logic and, you know, I learned a lot. So really appreciate it. Really worthwhile. You made the F. Scott Fitzgerald quote, the test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, you know, in the context of unavoidable trade-offs. But most people never go on to the next sentence that he wrote in that story, which was, one should, for example, be able to see that things are hopeless and yet be determined to make them otherwise. That's a quote that's always resonated with me as much as the first sentence. I honestly believe that because we're cooking the planet, we're basically... heading for ecological disaster. And that's the context for a lot of the comments that I make during Planning Commission meetings. I realize that those trade-offs are unavoidable and challenging, yet I feel that it's important to address this particular aspect of our current global situation in this very local context. And I certainly don't expect Planning Commission to solve global heating. But since you raised the Fitzgerald Code, I wanted to give that some additional context in hopefully explaining some of my obsessive and sometimes demented remarks at Planning Commission. The question I have is about, as Mr. Jeskevich brought up, the public health, safety, morals, and welfare. terminology that's meant as an expression of the police powers of the Planning Commission. Can these ever be invoked in a decision-making context? I have noticed that they do exist in the UDC in several places. Specifically, can an otherwise by right project or petition be challenged using that particular aspect of zoning. So again, that's any insight I would be appreciated, but regardless, it's been a really great presentation and experience for me to hear Commissioner Norton talk about zoning and planning. Thanks.

Yeah, I'll just thank you quickly. Thanks for that extra quote. I'll go back and add that quote. That's really actually a really good follow on to the quote that I use. And then I'll say I'm not the city's legal counsel. So can you challenge an action because you think it doesn't subscribe to the police power? I want to clarify. So the police power is a power that's enjoyed by the state. The state creates local units of government, and it delegates some of its authorities down to local units of government. And in Michigan, in the City and Village Organic Acts, it gives police power authorities to local government. Detroit thought that that was enough when it tried to zone. The state Supreme Court said, no, you have to have zoning specifically enabled. So the source of our zoning authority in Ann Arbor is originally from the state police power. And that's why the first precept of zoning, or one of the first ones I mentioned, was we need to be zoning for the public welfare, public health, safety, and general welfare, because that's the source of the authority that we're working with. We're not zoning to enrich private individuals or to help particular individuals out. We're doing it for that public purpose. So that notion should be informing all of our decisions. If we've gone through a rational decision-making process and said it makes sense to allow garages as permitted uses by right behind a residence in a residential district because most folks want to have a garage behind their house, you would be really hard pressed to make the case that because you're allowing a garage there, you're somehow violating the police power authority. So ideally, if we're doing this right, the way we bake the plan and think it through and reason it and then bake the zoning code building off of the plan, we should be implementing that notion of what this is all about. It's to protect public health safety. um everybody's willing you know you can bring a lawsuit that doesn't mean it's going to be a good one or that you're going to win it but but if you're going to attack a lawsuit a really good way to attack it is to say you're not advancing the public welfare you're doing something to benefit a particular property owner you better have good evidence to demonstrate that if you're going to make that claim um especially because the courts defer to local governments they're there they exist to represent representatives and i like to say to my students If you don't like the policy decision the city council made, your recourse probably isn't a lawsuit. It's vote the bums out. That's what the ballot box is for. If you don't like policy decisions elected officials are making, then elect a different city council. And the courts will tell you that. That's where you should be going. Don't come to the courthouse. So that's kind of in a really big picture way. That's the way the whole system is structured.

Thank you, Professor Nort. Looks like we have another hand.

Gaurav Kulkarni, you have three minutes to address the Planning Commission.

Hello. I was curious under what authority we can have zones of different intensity. So, for instance, we have low intensity residential or medium intensity residential, because it seems if it's under health, safety, public welfare, that seems to suggest that there's residents living in both of those. that different zones then are giving different amounts of health or safety or welfare. So I'm curious, I understand separating industrial uses from residential, but what gives rise to having different intensities of all residential? That was the only question I had.

Yeah, that's a really good question. That kind of flows from the comment that I just made, which is, Local governments are supposed to zone and plan and zone so as to advance the public welfare, public health, safety, morals, and general welfare. But that's interpreted really broadly by the courts. So there's a lot of room and deference given to communities to figure out how they want to balance the incidences of neighborhood living. And do we want to have some places that are just single family and others that have more intense use? For the most part, the courts don't want to go down the road of saying we're going to pass judgment on that because if they went there, the courts would start to make policy decisions and that's not the role of the courts. Even though we're supposed to be acting to promote the public health, safety, morals, and general welfare, And you could always argue, well, that makes no sense to have different scales of residential density across the district. It's pretty well accepted that, no, that's something the community can do as part of how it sees its composition in the community. It can also decide, we don't want to have just single family residential districts anymore. We want to allow for some mixed housing types throughout the city, as was the goal that was promoted by the Ann Arbor Plan and other communities around the country are adopting. That's a policy choice that community members make and it's within the ambit of this broad interpretation about what you can do with that authority and that'll pass muster. And again, the remedy for that, the policymaking remedy is political. vote elected officials who you think will better advance your perspective on how we should balance those different community uses. So the short answer is, yeah, that seems kind of quirky. I'm sorry. I keep using that term. That's kind of a, can sound like an odd aspect of this power, but it's actually fits with this broad notion of we're acting in the public welfare. There's a lot of room for the community to come together and decide what that means.

All right. Thank you. Last call for any comments to the Planning Commission? I don't see any. How about you, Manager Kelly? All right, well, with that, you have our gratitude, Professor Norton. Thank you for kicking off our continuing education series.

I'm looking forward to the upcoming sessions, too.

Yeah, and with a grounding conversation. And we appreciate both your time, your effort, your expertise, and your presentation tonight.

Thank you.

All right. So with that, I think, sorry, go ahead, Manager Kelly.

I was just going to say, have a good evening, everyone.

Oh, okay. Well, with that, I'm going to say good night. Thanks, everyone. We'll see you soon. Bye-bye.