001let's start and just say that uh welcome to you all this is the june 23rd 1922 electron meeting of the environmental commission of ann arbor this meeting is in accordance with the executive orders of the governor to affect social distancing and mitigate the spread of covet 19 virus we intend to conduct this meeting similarly to an in-person meeting however we're asking you to be patient if there are technical issues since we just resolved some public comment will be by telephone only to speak during any of the public comment opportunities please call i'm going to read a different number here 8 seven seven eight five three five two four seven and enter meeting id nine one five uh i think that's eight three four three nine four seven six and let's see this information is available
002on the published agenda and the public notices section of the city website and on the broadcast of this meeting on the ctn channel 16 a t at t channel 99 and online on www.a2gov.org watch ctn uh that is the kickoff to our meeting uh and with that i'd like to call this order and ask alan to read the land heritage statement all righty heritage statement i acknowledge that the land the city of ann arbor occupies is the ancestral traditional and contemporary lands of the anishinabe including ottawa ojibwe and bolton rodney and wyandotte peoples i further acknowledge that our city stands like almost all property in the united states on lands obtained generally in unconscionable ways from indigenous peoples the taking of this land was formalized by the treaty of detroit in 1807 knowing where we
003live work study and recreate does not change the past but a thorough understanding of the ongoing consequences of this past can empower us in our work to create a future that supports human flourishing and justice for all individuals and that is the land heritage statement thank you galen um and now i'd like to ask you to call the role please okay all right uh commissioner needham council member dish president from evanston illinois all right uh commissioner graham commissioner graham councilmember griswold president from ann arbor right commissioner kylie ward here all right chef person brown steven brown all right vice chair person uh rita mitchell here in ann arbor uh commissioner vandenbroe thanks for watching wait a minute um yeah no one's in the queue all righty uh commissioner i believe that he won't be here
004you want me to leave him as absent and present absent please okay um commissioner oriole here in ann arbor commissioner gibb randall commissioner gibb randall commissioner morrison commissioner here in ann arbor right commissioner gruber here in ann arbor commissioner uh nedritz commissioner nederitz all right we have a quorum we do are you sure one two three my name wasn't called in ann arbor hey what was that i'm oh juno so sorry i gotta check that yeah i'm sorry about that she used to be on a legislator commissioner juno here in ann arbor all right we have a quorum that feels better good um great so i would like to ask for approval of the agenda um commissioner councilmember griswold seconded by councilman commissioner callaway thank you and next um like approval of the minutes from
005our may meeting any comments on the minutes any concerns not may i consider them approved i'm hearing nothing i'm going to say yes okay griswold executive by gruber thank you sorry for using just your last names um our next item of um business is public commentary and galen would you please check to see if there are anyone callers to make comments there's no one there for public comment okay i'm gonna just because i think there was a problem for me reading this and i'm just gonna say with that number again it's id is 877-853-5247 it was hard for me to read that first time so just for sure okay with that um i would like us to move on to our um first presentation and i i really appreciate professor dick um norton for um
006i'm sorry wrong i got it in wrong order we're starting with the municipal utility uh electric utility presentation by greg woodring who's president for ann arbor for public power we were to have this presentation at our last meeting in may and it was we ran out of time so mr woodring was kind enough to join us again tonight and i wanted to say that that i am an active advocate for this particular program i just want that out there in the open for us all um and i work as a volunteer for it myself um and i see it as it's being included in this discussion because we had a presentation on the city's proposal for a sustainable energy utility that is potentially a compliment for this kind of program and so i thought it
007was worthwhile for the commission to hear about the ann arbor for public power presentation and and its options and it is also involved with a feasibility study along with the scu so with that um i'll stop talking and ask mr woodring to proceed with his presentation thank you so much rita um i appreciate the great introduction my name is greg woodring i'm president of antarctic public power and uh we have a presentation here for you tonight um i'm probably going to move through some of it a little bit quicker because i expect you all to be a little bit more up to date on some of these things based off of the previous um oh that didn't work uh slideshow based of the previous presentation that you got um as well as just your general
008awareness for being commissioners but if i slide over anything that you are more interested in hearing about feel free to just ask me to go into more detail i'm very open to that but uh without further ado um we are ann arbor for public power so who is ann arbor for public power what is ann arbor for public power well we're a coalition coalition of members from various local organizations we have representation from dsa sunrise indivisible climate action movement washington 350 ann arbor beyond bernie geo friday's for futures we recently got an endorsement from our revolution michigan which was very much appreciated so we managed to build a decent coalition of people doing work in and around ann arbor and fundamentally what we believe in is a green and publicly owned future we want to
009democratize decommodify decarbonize and decolonize our energy sources and so what is it the problem that we're facing right the problem in ann arbor uh is that dte is not transitioning to renewable energy fast enough to meet our global or local emissions targets right dte is actually the third dirtiest major utility in the country uh this uh is their most recent fuel mix that they published um for last year they burned about 58 coal that's up eight percent from the year prior about 10 fracked gas um they got about 23 percent of their power from nuclear and about 9.5 from renewables and that renewables in fact is a little bit misleading because some of that renewable energy actually a decent portion of that renewable energy is actually burned garbage which i don't think many of us
010would consider exactly uh eco-friendly um and so you know just to kind of illustrate that point right ann arbor has set an ambitious but i believe reachable carbon neutrality date of 2030. president joe biden's also set a carbon-free electricity date of 2035. however dte's target date is 2050. about 20 years past what the ipcc tells us is uh the minimum to reach in order to avoid the most catastrophic impacts of the climate crisis and dte doesn't really even have a real plan to reach that 2050 timeline uh they plan to continue to operate on 12 coal-fired generators until 2040 which is 10 years past when we need to get off of coal and they're also continuing to invest in fracked gas infrastructure in fact they seem to believe that they are going to be able
011to make fracked gas carbon neutral which is pretty unrealistic according to a lot of the science on this topic which probably don't need to go into a ton of detail with all of you but generally we consider this technological wishful thinking they believe that there is going to be some sort of magical technology in the future that is able to make fresh gas carbon neutral which is definitely yet to be seen and so what do we think is the solution to this problem and what is the reason for our existence and why we're here talking today is we believe that through municipalization we'll be able to achieve our city's energy goals so what is municipalization essentially municipalization is just the process of taking something that is privately owned and putting it under the ownership of
012a city right so there is plenty of other municipal owned utilities in the country in fact our water and sewer comes from municipal utility most water and sewer it comes from amnesty municipal utility and there's actually a lot of communities across the united states over two thousand that gets their energy from a municipal electric utility and over 40 of those are in michigan alone and there's not really a big wonder as to why that is it's explicitly protected by the state constitution to allow cities to municipalize their energy grid you can see here a map of the different municipal utilities across the country or across the state some of the big ones lansing holland chelsea traverse city um holland uh they and why is it that we believe that a municipal utility is going to
013be right for ann arbor what is it about a municipal utility that uh outcompetes this iou model this investor owned utility model right well there's five main areas that we identify reliability affordable affordability local control the fact that it invests in our community and finally and i think probably most important to most of the people here listening today is the environmentally responsible choice so reliability on average a public power utility loses power about half as often as their iou counterparts nationwide right the average uh outage for public power utility per year is about 74 minutes um and the average outage for an iou uh an investor in utility nationwide is about 136 minutes but that doesn't exactly tell the whole story in michigan in fact in michigan it's considerably worse dte uh in 2017 where
014we pulled these numbers and i guarantee you that if you looked at some of the more recent numbers they'd probably be worse um dte lost about a little over a thousand minutes back in 2017. city of lansing by comparison the city's largest municipal utility lost just a little bit over 250 that's about a four times less outage right which means their power went out less often and it came back up quicker affordability it is also cheaper uh so you get better service for a cheaper rate on average nationwide a municipal utility tends to pay about 14 less than their iou counterparts and once again that is not quite the uh same extent in michigan uh ann arbor under dte and it's actually gone up since uh these numbers were pulled um but when these numbers
015were pulled we're about 17.51 cents per kilowatt hour it's about 18-ish now um chelsea our next door neighbor by comparison spent about 10.15 cents per kilowatt hour that is a 40 less that they are paying for their energy and really the reason is because they're municipal on utility right in fact chelsea uh doesn't buy different power than we do right they write a check to dte every year to buy their power but they're able to collectively bargain on it right and they're able to uh buy energy at a considerably cheaper rate because of the uh advantageous position that they're put into by buying this in bulk as a city now we don't just believe we should do this because it's cheaper better power though many might be able to argue that that's enough of a
016reason but we have more to it than that a municipal energy utility will give us local control right with the municipal energy utility we have pretty much control over everything that we do with our power we would control our rates we would control where our power comes from and we would control when our infrastructure is updated right a recent uh state um study showed that dte's infrastructure a large portion of it was about 40 years past its functional end of life which means that it should have been replaced back in the 80s and yet it's still in operation here today right that is a large contributing factor disease by liability concerns that we have and it's simply a decision that we wouldn't need to make if we owned it ourselves also it invests in our
017community right and i can get into the details of pilot versus taxes and how uh municipal utilities actually contribute quite a bit money more money back to their community uh through um what's called a city fee then uh investor owned utilities typically payback and taxes but it also means that we're going to be investing in good jobs in our local community right jobs that would be protected by our responsible contracting policies right that we'd be able to build in union protections to it would allow us to build a modern and reliable uh infrastructure right in a modern reliable energy grid we know that the future of energy is not these large investor-owned coal-fired power plants or large centralized power plants right the future of energy is the distributed network of reliable infrastructure that is able
018to stand up to the ravages of climate change right these storms and outed uh things that cause these outages are only going to get worse and we need to become more resilient if we want to overcome that right and finally and what i think is probably the most convincing to personally us and likely many of you it's the environmentally responsible choice in short it allows us to reach our climate goals on our own terms we do not need to rely on what dte decides is profitable for them to invest in we are able to seek out our own reliable our renewable power and buy that power instead right there's two basic ways that we would be able to get power with a municipal energy utility right we'd be able to obviously use as much power
019as we pop generate as much power as we possibly can within the city right we can invest in rooftop solar we can provide uh programs that will help incentivize rooftop solar and make it affordable to people right things like on bill financing many of these same policies that the seu is looking to implement the uh muni would also be able to implement them and it would have the advantage of being able to do it at a larger scale because it would be the entire city that would be involved in this rather than subscribers um and it would also allow us to get over many of these restrictions that dt have uh put on us right dte currently puts a one percent cap on local distributed energy generation that is at the discretion of your utility
020right if we had our own municipal owned utility we'd be able to eliminate that cap also dte since we made this slide has started lobbying to try to put a tariff on every homeowner with rooftop solar estimates are that our homeowners with rooftop solar are going to be paying about a hundred dollars extra per month in their energy bills just for having rooftop solar we wouldn't need to do that right that would be that is at the discretion of the utility and that's something that we'd be able to overcome with our own municipal energy utility and also just to prove the point there are exactly six utilities in america at the moment that have a 100 renewable fuel mix all of them are publicly owned utilities either cooperatives or municipal utilities and so let's talk
021about funding this is obviously one of the big issues right how much is this going to cost is it going to lead to increased taxes is it going to bankrupt the city and there's serious questions to ask however thankfully i think we have a good answer for you on that one so typically the way that you fund uh municipalization is that you do it through a revenue bond right so the city which they're currently working on at the moment will fund a feasibility study and that will evaluate exactly you know at least within the ballpark how much is it going to cost to buy out this infrastructure right then it's going to estimate how much money is it going to take to run this utility and how much money will we get back in the
022rates right you dte is already charging us quite a bit in rates instead of that money going to dte that money would then be going to the city uh and there's going to be almost certainly money left over and pretty much every single city that has undergone this uh procedure there is considerable money left over and that pays for the service on the debt for the bonds right so you the muni pays for itself and in fact in most communities there's actually even more than that and that's money that's able to go back to the city and be reinvested in any programs that the city wants right it can go towards more sustainability or parks or water oh i don't know if it can go to water but that it can go to a lot
023of whatever the city wants um so yeah it doesn't raise taxes provides additional funding in short it's the cheapest way that we possibly could reach our climate goals because it's going to make us money um and you know here's a graph that kind of illustrates how that works out for other communities across the state right all of these communities are of very different sizes but i can assure you that this is a decent amount of money for each of them traverse city back in 2020 where i pulled these numbers from their financial statements made 1.6 million dollars holland made 7.6 million dollars and lansing made a whopping 23.1 million dollars money written back to the city um so now i've got a bit of a thing on the legal history i'm going to go through
024this a little bit quicker because i think that many of you are up to date but essentially this outlines the details of the foot act right so back when electricity was new and people were trying to electrify it some cities went down the path of creating their own municipal utilities most of the municipal energy utilities you see in michigan nowadays come from this era where they stood it up themselves and built out their own infrastructure many communities couldn't afford to do that right and they relied on private funding to be able to do it and if someone's going to provide private funding they're going to expect a return on their investment and that makes a certain amount of sense so they the cities would agree to what's called a franchise agreement and they would say
025for a set amount of time 5 10 20 30 years we will only buy power from you however in 1905 there was an effort to standardize how these contracts were being done right every city had their own contract and it was a bit of the wild west and the state wanted to say that there is a standard way to enter into these contracts and they rewrote all of them now foot is the last name of a man who sat on the board of a company called consumer's energy and it just so happened that there was applause within that foot act that when they rewrote all these franchise agreements they happened to leave out the expiration date on all of these agreements so now we pretty much every city in michigan not all of them but
026most of them had these contracts back in 1905 and they became footage franchises that were indefinite um and they provided an indefinite uh franchise agreement to that utility forever um in 1907 people got really mad about this they passed a amendment to the state constitution saying that no franchise agreement can last more than 30 years the supreme court then uh heard a case brought to them challenging this amendment the supreme court of michigan found that yes this amendment will apply to all future franchise agreements but it doesn't apply to previous ones which is a bit frustrating because they kind of just rewrote all the contracts and they said well you can't modify a contract but over the next uh hundred some years this was held up time and time again and it's become rather established
027law in fact they actually expanded this to say that a company buying another company that holds these franchise agreements actually inherits them so ann arbor signed a contract back in 1895 i believe to a company i think it was called the michigan electric company a small little company and it was providing power to 26 different electric light bulbs in ann arbor that agreement became a foot act franchise agreement which then got bought by another company that got bought by another company that eventually got bought by dte and to this day dte now has a perpetual franchise agreement in ann arbor and nobody is allowed to compete with them for providing power except there is one exception to the foot act franchise and that is that a city can always have a right to its own
028franchise a city is able to provide power to itself so if we ever want to get out from under the boot of dte and their deceptive business practices and their corrosive uh impact on our state legislator and the fact that they are undermining renewable efforts across the state and even the nation there was a recent report that showed that they're heavily lobbying to influence energy policy within the state of california then we're going to need to do it ourselves we're going to need to break away from them so how do we do that how is it that we municipalize well luckily we already did the first step uh the city council commissions a feasibility study and this feasibility study evaluates many of those key metrics that i mentioned before such as the cost of acquiring
029assets and how much money it'll make and if it will be able to cover the price of the bonds with the money that it makes then it goes to the ballot the state constitution requires that this be done on the ballot by a vote of the people and it needs at least a 60 vote in that election right so it is sixty percent yes uh in the election that it's held what that will do is it establishes the governance structure and the authorizes the city to begin negotiations with dte to purchase out their infrastructure now dte is not exactly likely to be very friendly to this idea and they probably will not agree to the price that the city offers so what that means is it's going to have to likely go to court and
030a court will decide what is the price of these assets once the court has decided what the price of the assets are there's one more vote where we authorize the funding to actually purchase out the infrastructure and after that we've got our muni right we're able to start moving aggressively towards 100 renewable electricity in ann arbor and you know i wanted to throw this in uh because a lot of this conversation is centering around a lot of the exciting stuff that the city is doing with a sustainable energy utility i just want to say that ann arbor for public power is excited about the sustainable energy utility we see it as a good first step at moving towards 100 renewable power it allows us uh hopefully at least to get started quickly on getting more
031resilient local power generation but there's always going to be a bit of a bottleneck here right it's a subscriber-based program people are going to have to opt into it the city's rfp that they recently released estimated at its highest a 50 buy-in rate on the seu right so we can get started on the seo we can start to uh get people installing their own home solar and in the same time we can work towards municipalization right which is going to be able to get us that 100 mark right the seu also is not going to have access to um buy power from outside of the city right it's not going to have access to those power purchase agreements that would allow us to buy power from other renewable power generation sources outside of the city
032uh municipalization would open that door for us right so i see and i think that this is a general opinion of ann arbor for public power we see that these are complementary plans right we can get started quickly on doing whatever we can without buying the infrastructure and then once we get that infrastructure we're able to move quickly and do the rest of the job and i just want to leave you with a few successful examples of municipalization from across the country so along island new york back in 1998 initialized their energy utility they now serve well over a million customers and they managed to reduce their electric rates by an average of 20 percent winter park florida uh they actually gave us a fantastic presentation to the energy commission back in october of 2021
033and i highly recommend that people go back and look at it they municipalized their power back in 2005. they were primarily concerned about reliability they were being hit by a lot of hurricanes and their power was being knocked out and they were being left in the dark for weeks because typically the power utility would uh prioritize the coast so they municipalized their energy utility and they aggressively started to underground their wires they're on track to get to a hundred percent of their wires undergrounded at the time of the presentation last year that they were at about 84 um and they did this well paying off the debt on the infrastructure right so they were able to uh pay off the debt of acquiring all the infrastructure and has excess revenue that was able to go
034back into infrastructure investments in jefferson county washington in 2008 and i think that this is probably one of the more impressive ones uh voted to uh establish the municipal electric utility they negotiated with their utility for two years and they were eventually agreed to a 103 million dollar buyout and then they were able to get to a 97 carbon free electricity mix which is one of the cleanest in the country hopefully soon to be beaten by ann arbor though at 100 uh and finally and i think that this one might be surprising to some people boulder colorado a lot of people think of boulder colorado as the boogeyman of municipalization right boulder colorado fought a very hard battle for about 10 years during their municipalization fight and they eventually ended up settling and not going
035through with municipalization but that settlement came with some significant benefits of them uh an assurance of an 80 statewide greenhouse gas reductions by 2030. so they were fighting to get 100 renewable power within boulder much the same reasonings that we want to do this here right they didn't get that but they got 80 percent statewide which is a much bigger impact than one city and they also established check-ins where if the utility was not meeting their obligations they were able to restart the whole process and go back towards municipalization they also got um agreements that allow them to upgrade their grid and be able to do more to distribute energy generation and underground their wires to enhance their reliability so this is really the way that you put pressure on a utility right obviously in
036our public power we're looking for the whole enchilada right public power is a better system it would lead to more reliable cheaper and more cleaner energy for ann arbor but even just fighting this fight is going to force concessions out of dte so we think that it's a slam dunk uh very excited to present it to you and i'm very interested to hear any questions that any of you had i moved through things a little bit quickly because i wanted to be able to give you some time to be able to ask questions but happy to go into more detail on any of this that's our website right there in our publicpower.org we've got a lot of different info on there so please check it out if you have any questions as well but yeah
037i want to turn it back over to you thank you greg that was really excellent and um i would like to offer um the opportunity for commissioners to ask questions let's see commissioner marcin's hand up please proceed wow i have thanks for the presentation was wonderful i have two questions the first is what's the estimated time frame for me for municipalization in ann arbor and the second is do you have any examples of municipalities that had their own uh power utility and decided to sell it back to a private company or a public company but not run by the city yeah um so first off estimated timeline um so we're hoping to be able to bring this to ballot in 2023 it's going to rely on the feasibility study finishing in time but we are
038currently working with our lawyers to draft that ballot amendment language and we'll be collecting signatures hopefully starting here in august to be able to put that on the ballot um you know i can't give you an exact estimate of how long it's going to take to fight the battle to acquire the assets like i mentioned many communities they look at about two years and the most extreme you know you see like 10 years obviously i'm hoping we're going to be able to move as quickly on this as possible but you know even if it is ten years i remember a quote uh from jeffer when uh state senator jeff irwin when we first started this and we were talking to him and he said you know we were talking about this 10 to 15 years
039ago and we're like well yeah it'd be great but gosh it could take 10 to 15 years um so you know certainly don't want to be sitting in that position uh as in terms of communities that have decided to sell their municipal utility back um well i can give you one and it's ann arbor actually had a municipal electric utility um back into the early 20th century and they decided to sell it off um but it's it's not an uncommon thing uh cities end up into budgetary trouble um it's a very profitable thing for a private investor to be able to own um and they tend to pretty aggressively try to go after cities uh going up uh to pressure them to sell off their municipal energy utility uh dennis kucinich famously fought a battle
040against privatization effort back in cleveland uh and it was pretty it's pretty uh dirty in fact there's uh there's an art plenty of articles that are right about how fast face assassination attempts throughout that process um so yeah i mean this is this is serious business it's big money here uh and private utilities want to own these things because it is an absolute cash cow for them it's one of the most reliable investments you can make because it's state enforced there is a percentage that the state guarantees a private utility will get in profit right and one of the reasons why it's just so much easier for municipal utility to perform better than these ious is because they simply don't have to shave off that money off the top to go to shareholders right they're
041able to take every dollar that people are paying for their energy and put it back in towards into making a better energy utility for their community uh commissioner gruber thank you that was very informative i i wonder if you know you brought you mentioned the example in jefferson county and that they're at 97 percent renewables do you know if that example or another another example where they were able to put a source from a lot of renewables but also reduce the cost to the consumers i um you know off the top of my head i don't know exactly what the cost breakdown for jefferson county washington was um certainly you know there is a balance there right um can i guarantee that if ann arbor municipalizes especially with their ambitious climate goals that they're going
042to be paying less for their electricity out the gate no um there is a very good chance that ann arbor is going to be paying similar or more rates out of that especially if we're going to aggressively pursue our climate goals however over time pretty much in every single case municipal energy utilities end up paying less right the rate of rate increases is much slower with municipal energy utilities um and you can look at examples all over the country in the state for that right there's a a lot of these utility uh municipal energy utilities well pretty much every single municipal energy utility in michigan pays less for their power they're also fairly well established so uh you know there may be a bit of a ramp up but you also got to look at
043this of what is the cost of climate change right what is the cost of inaction on climate right um so you know i'm very excited for a feasibility study to be able to lay out some of the cost breakdowns i definitely believe that we're going to be able to stay competitive to dte just because of how much that they pull out of our system but if we want to aggressively pursue reliability and aggressively pursue renewable energy we might end up paying a little bit more the great thing though is that this is something that the voters would be able to have a say in right it's suddenly under democratic control and we get to choose our own priorities rather than have them handed to us by a company that's really only interested in making money
044[Music] are there questions greg i have one um if anyone else has one please join in um i guess i'd like to hear a little bit of your discussion on um some of the legal issues that might come up and complexities related to that uh legal issues related to municipalizing uh certainly yeah so we in our public power when we first started going into this this is kind of the thing we cut our teeth on for uh to begin with right we really uh the legal history of this was pretty hard to untangle um and we were getting conflicting answers from different uh people about exactly how legal was this we decided to commission a legal report from the law firm obh up in traverse city um the partner that worked on this was chris
045bisdock former mayor of traverse city and also served on the traverse city board of power and light there very experienced utility matters and also a very well accomplished environmental lawyer and they did a legal analysis that showed pretty concretely that this is a legal path for us right it is built into the dna of the state constitution as crisp as doc put it and he did a really excellent um explanation of this in a round table that we held a few months ago which i'd be happy to share with the commission um but there's certainly dte is not going to take this rolling over right they may not be able to oppose our ability to do it but they certainly are going to try to slow down the process as much as they can on
046um trying to get the valuation of the assets right now it there are there are formulas uh for how you value the assets right there are going to be a few things that people squabble over right one of the big ones is typically stranded costs right stranded costs are essentially the utility is going to claim that there is so much infrastructure that they used to support ann arbor that we aren't buying that we need to compensate them for right um this is something that tends to be pretty fiercely negotiated within municipalization battles uh winter park florida gave some really good insights into this in their presentation to their energy commission they did not believe that they should have had to pay nearly the amount of stranded asset costs that they did they ultimately ended up
047agreeing to pay um some of them because they just wanted to end the legal battle so these are the considerations that have to be taken into effect certainly and you know the city has some fairly well accomplished lawyers uh that will be able to fight this battle out um but yeah it's it's certainly there are issues that are going to come up and it's also been the first time in about 100 years that this has happened in michigan right the last uh city to do this was traverse city back in about 1920s um and so there's going to be a little bit of figuring it out uh for everyone involved at the state level you know in the courts and things like that uh which we see as something that it is a challenge right
048but it also is an opportunity if ann arbor is able to municipalize we will have established a legal roadmap for it we will have shown everyone in the state how it is that you can break free of your municipal or of your investor owned utility and that will open up the door for other communities across the state to follow in the same pathway that's going to be very scary to the investor-owned utilities and that is going to force them to either come to the table and meet the demands of these communities or face the prospect of the same thing that happened in our order is going to happen across the country right across the state which we see is very exciting right it's a way for us to both uh find something better for our
049community as well as help everyone else in the state to reach uh you know their goals and to build towards that renewable energy future that we absolutely need to move to right there's no real choice in the matter we've got to get off of these fossil fuels and this is just the most effective way to do it thank you commissioner gruber has another question thank you uh that that conversation there just made me think about uh you gave some great examples from florida and washington and um other colorado were the state laws in those states comparable to what we have here in michigan were they also going over this hurdle of 100 years it's been 100 years since they've municipalized can you share some similarities or differences between those yeah definitely so some communities have
050it easier some communities have it harder boulder um in colorado they had it harder there was a lot it's not built into their state constitution that they're allowed to do this and also um there was ways that they did it they made a few mistakes along the pathway of you know how they were structuring these proposals that left them open to legal liability earlier in the process and probably should have been able to be done right this utility was able to sue before they actually started trying to acquire the assets um in communities like winter park florida uh it was a bit easier right they didn't have these perpetual franchise agreements that we have which allowed them to be able to essentially just cancel their franchise agreement rather than having to go through the condemnation
051process the same way um so yeah it's it's a different you know every state's going to be different legal uh case you're going to have your benefits and pluses in your law um we're certainly not in the easiest state to do it but we also are in a state where it is not really a question of whether it's legal right sometimes you go down these pathways and it's like it's pro it's it might be legal right based on the interpretation in michigan it is in the state constitution it outlines the mechanism by which you do this right so that's a huge advantage that we have right thank you um i think this should be our last question just because of the time um so thank you kathy commissioner kristoff council member gracelaw uh yes greg
052i just want to thank you and say i have heard this presentation a few times and every time i hear it uh i learn something new and it's equally interesting so thank you very much thank you so much thanks all right thank you very much greg i appreciate your being patient with coming back a second time and um thanks and we'll stay in touch we'll have this um presentation on our um in our minutes and available for everyone to view at any time fantastic thank you and feel free to reach out with any questions that any of you have great thanks um we're going to move on to our second presentation which is professor dick norton um who will be talking about uh tree ordinance in canton michigan um can downshift michigan and the effect
053it had on their preservation of trees and some legal aspects of it it's a complicated story and i really appreciate um this discussion this opportunity to talk it through because we're trying to protect our trees here in ann arbor and we we need to have a good approach to move forward so um i'll turn the screen over to professor norton and thank you for being here and thank you councilmember dish for arranging this in the first place okay um i'm going to start off by confessing right away i haven't done my homework to go back and look at ann arbor's tree preservation audience or what you're proposing to do so i can't speak to the particulars of ann arbor but i was asked to come in and talk about kent township's experience and i think
054it's very relevant to what you all are facing let me just quickly explain i teach in the urban and regional planning program at the university of michigan i'm a planner and a lawyer so i teach our planning law planning students the law that they need to know to become professional practicing planners and i've been studying michigan law since i've been here for 20 years i've also been a member of the michigan association of planning for about that time and i'm on the maps planning law committee so over the course of the past 20 years i i actually helped draft what are now the michigan planning enabling act in the michigan zoning enabling act of consolidation of those acts and i've also written front of the court or amicus curie briefs to the michigan courts and
055now the federal courts on behalf of map speaking to issues that are of great concern to communities in their planning and zoning efforts and that's how i got involved in this canton township work i'll explain in a minute cl township has a tree preservation ordinance they have some property owners who didn't want to be subjected to it they cut down a lot of trees and they ended up in litigation um they lost in both state court and federal court and then they approached map and asked if we would write an amicus carry brief or the case going up to the u.s sixth circuit court of appeals and that's where i got involved and wrote that brief and that now the state case is in front of the state court of appeal so i just filed
056a brief on behalf of that case so i'm in the thick of the legal arguments that are going on here and so i'm going to focus on the law in my presentation i see there's a question that i'm happy to address yeah i just wanted a clarification who lost in the logic loss several times yeah so i'll explain i'll explain the history here a little bit i just wanted to explain to you who i am why am i here talking to you okay let me see if i can share my screen you'll see that okay so there are two cases involved here the one that's been resolved up to the sixth circuit court of appeals was ftfp development versus canton township we made that i made this presentation along with emily palacios and mark wyckoff
057um to for a webinar for the map membership and then we were emily and i gave a similar presentation to the state bars government law section and i'm drawing from that um going from that presentation so just to give credit where credit's due so let me give some background there is a set of property it was owned by a property owner who uh his business name is fp development he split the property and sold it part of it to a smaller lot to a neighboring property owned the company name is 44650 inc so the two cases are fp development and both property owners basically went in and clear-cut their properties they they bought the they bought the land puppy development bought it and then when he split it and sold it they both knew about
058the tree preservation ordinance because the township told them about it multiple times but they went ahead and clear-cut pretty much the entire property nonetheless by the time township found out about it that all the trees or most of them were down so kent township was put in the position of having to go back after the fact to enforce its ordinance which it did against 44650 which is the smaller parcel but they cut down way more trees so they were the the larger offender if you will when the fp development saw what was happening he filed suit in federal court trying to preempt the township from going after him so now we have a state court case where the city is suing the property owner and we have a federal court case where the property owner
059is suing the see it can't touch if it's a township so two it's a little bit confusing you can kind of keep straight what's going on here this is just the before and after this i got this from that township attorney so i i think both of the properties are in that section and you can see they pretty much took out all of the trees so a couple thousand trees i think all told so let me explain the ordinance the purpose of can't township's pre-treservation audience is to maintain and enhance the tree canopy and certain landmark trees it applies to what are defined as regulated trees and the ordnance itself they're large mature trees over six six inch dph or trees that are in a forest um which is canopy exceeding a half acre in
060size and then they also have special provisions for landmark trees which they define as trees of 24 inch dbh of certain species so they lay out the species that all this applies to as well procedurally a property owner is supposed to obtain a permit from the township before cutting any trees and is part of that process they're to confer with the staff and then they're supposed to take steps to mitigate any harms that the tree cutting would cause and they basically have a choice the the ordinance makes clear the preference is to well first of all design your project to avoid taking trees as much as possible if you have to take trees you can mitigate ideally by replanting new trees on site if you can't do it on site because the nature of the
061project or the site itself you can replant elsewhere in the township on your own or if you don't want to do that you can pay into a tree replanting fund that the township uses to plant trees elsewhere and it is no one contested that the township is collecting those funds and using them strictly to plant trees it's not a revenue generating source for the township at all it's it's a mitigation process um they do include some penalties too but they're trivial and the township didn't exercise them oh really what's the issue here is the replanting costs for mitigation um the ordnance does bake in some pretty substantial exclusions the biggest one from my mind is that it excludes all smaller lots smaller than two acres that's actually a substantial portion of the township that this
062doesn't actually apply to they also exempt uh if you're cutting in a in an area that you're allowed to do civil culture or farming that you can cut to put in nursery trees or agriculture and you don't have to subscribe to the ordinance okay so fp development took preemptively the township to court in federal court alleging some different things first he alleged that you're taking my trees in violation of the fourth amendment the constitution you're seizing property that you shouldn't be able to seize he also alleged that the fee replanting the replanting fees they were assessing amounted to excessive fines in violation of the eighth amendment and then he alleged that this is a regulatory taking in violation of the fifth and the fourteenth amendments the fifth amendment states north shore excuse me private property
063be taken for public use without just compensation provided um i'll explain this in a few minutes that's become part of the regulatory takings doctrine it's applicable to states and townships by virtue of the 14th amendment um and he alleged both facial and has applied takings i'll explain that in a minute and he also alleged this strange thing called an unconstitutional conditions test which i'll explain in a minute i'm just running through quickly what happened here the u.s district court for the eastern district of michigan which is in detroit dismissed the unlawful seizure claims and the eighth amendment claims um didn't find that they had merit but the trial court federal track court did find an as applied regulatory taking and he did that both by applying an ad hoc balancing test and by applying the
064unconstitutional conditions test this case then went up to appeal on to the six second court of appeals and this is again where i got involved with this case along with my colleagues on the planning law committee and this was argued in front of the court um last june the sixth circuit court of appeals affirmed the trial court so there's no live claim here that that this ordinance affects an unconstitutional seizure or unconstitutional fines and the court noted that this nolan dolan conditions test may not apply but we're going to apply it anyways because the parties didn't contest that and i'll explain where that came from in a minute and then in a form it affirmed the taking on this reproportionality test and because of that it it specifically set aside the other theory for regulatory
065taking so all of this has some implications that i'll explain before i get there though now i want to step back and explain what the heck is a regulatory taking and i honestly don't know if any of you have been exposed to this this is really arcane legal doctrine so let me just kind of quickly explain whenever a property owner is unhappy that they're being regulated in a way that they think is unfair they almost always bring a due process claim you're violating my due process rights under the federal and state constitutional protections they often will bring equal protection claims and they'll almost always bring a regulatory takings claim your regulation is so harming what the value of my property you should compensate me for it where is that coming from well we do have
066a constitutional protection against the taking the unfair taking of private property that's again in the fifth amendment and then there's a parallel clause in the michigan constitution and nobody contests that the government has the authority to take your property what they have to show is they're doing it for a public purpose and that they're providing just compensation so all of the litigation has boiled down to is are they taking it for a good reason and are they paying just compensation to do it that's pretty well settled law it's actually more stringent in michigan than in federal law but it's pretty well settled due process and equal protection are really getting at this question of is the government being fair is it treating the property owner fairly and that's usually assessed in the context of a
067means-end calculation what's the harm they're trying to avoid and is the way they're getting there a reasonable way to get there is the government does the government have a good reason for why it's doing what it's doing is it a legitimate purpose and is it a reasonable way to get there most due process claims typically fail especially when the government has a good reason for why they're regulating to protect trees or whatever they're doing and they've laid out a pretty clear reason for why we're going there so most usually when you um when a government loses a due process claim it's because it's really being abusive there's just something really wrong with the process they use or it's just clear that they're being unfair to a particular property owner i don't i don't think the
068property owners here even brought due process claim there was no question that the township had a reason for why it was to protect entries and how it got there it was really it was really the takings claim that became important so now let me talk about a regulatory taking the idea behind a regulatory taking is that is the argument that a property owner makes that you're using your regulation to so control my use of my property you're really effectively taking it from me through a regulation and if you're going to do that you should have just condemned it and taken it as a park or whatever it is you want me to use it for and pay me for it take entitle to it instead of regulating away all of the viable use of the
069property i'm looking at rita because i can see your face is that making sense i always like this is making sense to you as i explain it so so the idea that courts are very suspicious that sometimes governments they know they don't want to pay for a piece of property well let's not pay for it let's just regulate it to get what we want and avoid having to take it and when when a famous case in 1922 kind of articulated this regulatory takings doctrine this is justice holmes who is famous for making quips that sound great in theory but are really hard to figure out what they mean he famously said when a regulation goes too far the courts will deem it a taking if you go so far in your regulation that you're just
070abusing a property owner and you're basically taking it through regulation instead of taking title to it you should just take title to it okay so now the phrase that's commonly used by all the courts to explain the takings doctrine is that it's all about making sure that government doesn't force some people to bear alone burdens which in all fairness and justice should be borne by the public as a whole in other words if you want somebody to turn their vacant lot into a butterfly farm for everybody to enjoy and you're going to tell them you can't do anything except grow butterflies on your property just buy the property and turn it into a park don't force them to bear the burden of having a public park for everybody else's benefit that's that's the logic behind
071the regulatory taking the problem now that we've dealt with this this case came down in 1922 it sat quiet for about 50 years and then government started to regulate to protect the environment we started to realize oh my gosh we're doing all this destruction through the environment we're going to start adopting regulations to stop that and then property owners started to say wait a minute you're regulating all of my use of my property you should just pay me for it we've had tons of litigation now that have tried to clarify in justice holland's famous quip what does it mean to go too far so here's why i'm stepped through this taken and this is an arcane doctrine so there are some preliminary things if it's just a temporary regulation if you put a moratorium down
072to say we're not going to issue permits for a year while we refigured our planning documents the courts will probably tell you that's not a taking that's okay so you got to get through those preliminary steps and you also one thing to bear notice or note is you look at the whole parcel so if you have a regulation that justify affects a strip of the land say along a buffer along a stream you don't just look at the buffer and say did you take that buffer you look at the whole parcel and say well you you have your whole parcel of land we're telling you to keep a buffer there we're not going to just sever off that buffer and tell the city to buy it you kind of have to look at the whole
073picture that'll make more sense in a minute i think okay so now we ask a series of questions the regulatory takings doctrine really vindicates two key rights that we own when we own private property one right is the right to exclude and the other right is the right to use if the government adopts a regulation that compels you to let somebody onto your property that you don't want to let onto your property the courts call that an ouster you've taken away their right to exclude the paradigmatic case here was a new york law that required property owners to let the cable tv company drape a cable across the property they weren't using the cable tv they didn't want to have it they didn't want the cable but the city said you got to let them
074do it the court said that's a taking you're forcing a physical occupation of their land you have to pay for it by the way the remedy in that case was a dollar it was a pr it was a case to make a point so if a regulation compels an ouster it's a taking if it doesn't compel an ouster the next question you ask now we're getting it your right to use your property the second categorical rule the courts have articulated is the total economic deprivation case if the regulation takes all of the economic value of the property there's literally nothing you can do with it or nothing else you can do with it the courts have said categorically that's a taking accept kind of weight maybe they put on a qualifier maybe there are background
075principles of state nuisance and property law that wouldn't let you do what you're wanting to do in the first place and if that's the case and all the regulation is doing is codifying that rule then it's just codifying um things that you couldn't do before you never owned that right so that here's the paradigmatic case as a nuisance you don't have the right to use your property in a way that creates a nuisance for your neighbor right i can't put a fig pig farm in my backyard and have lots of pigs and and drive my neighbors out the door because they can't stay in the smell anymore because that's a nuisance if the city adopts an ordinance it says you can't have a pig yard in your back farm well i never owned that right
076in the first place so being regulated and being told you can't do that didn't take anything from me it's not a taking does that make sense so there's that qualification on a total economic deprivation [Music] most cases nowadays do not compel ousters or total economic deprivations because governments have learned don't do that give you know don't don't force somebody to take someone on their property that they don't want to have and make sure you give them something they can do with their property so now you end up in the category of cases that are usually litigated and it's this is the penn central ad hoc balancing test ad hoc means case specific or site specific and basically the court laid out some factors the courts are to look at the supreme court laid out these
077factors what's the economic impact on the property owner what are their reasonable expectations when they brought the land and why is the government doing this and that the courts are to balance those factors and figure out is this an unfair burden to put on this individual property on earth is it one that should be spread out across everybody else and if the answer is this is an unfair burden it's just asking too much for this property owner to do this given what the government's trying to do it's a taking [Music] if it's not an unfair burden it's not a taking so you're done all right with me so far those are the three basic tests for what constitutes a regulatory taking [Music] now we've got this weird situation called this unconstitutional conditions doctrine and this
078really came to the fore in the fp development regulation and basically what the courts are ruling is well sometimes government doesn't just flat out tell you you need to give me an easement you need to give us ann arbor and easement across your back lot because we want people to be able to get through instead the developer says i want to build something here and the city says well we'll let you build we'll give you a permit to do the building project you want to build but you need to give an easement to the city in exchange because we want to create a path for the people to get through now if the city went to this property owner and said you need to give us an easement that would be a taking right you're
079forcing a physical occupation what if the developer's asking for something in exchange the courts have said well maybe that's still okay we'll apply this unconstitutional conditions test and now that's raising um two questions well first of all if if it's a flat out regulation you need to give us an easement or you need we're regulating your property so much that you don't can't do anything with it and that has nothing to do with a permitting decision it's a taking or down if it's in the form of a permit condition you can build your project but you need to give us the city something in exchange the first question the court asks is is there an essential nexus is there some relationship between what you're demanding from the property owner and what what um they're proposing
080the paradigmatic case here was a california case where a property owner wanted to build a bit taller house the california coastal commission said you can build a taller house but you need to give us an easement across your property the court said there's nothing about a dollar house that's creating a hardship for people to get across your property that's just that's abusive you're demanding something from this property owner that's not in any way related to the project that they're trying to develop okay there's got to be in a relationship a later case said okay if you have an essential nexus it still also needs to be roughly proportional so this is the tiger oregon case where a hardware owner wanted to build on her hardware shop that city said you can build but we want
081you to give us an easement it turns out the city's trying to build a greenway along the riverscape and they basically were using this property owner to get that last piece of easement behind her property to finish off you know to add to their greenway and there was really no evidence that the people using the hardware store were going to add that much more traffic to the bikeway to make it roughly proportional the court basically said yeah maybe some people will bike there's an essential nexus but you're asking way too much from this property owner for what you're trying to get at if you want to have your greenway buy the easement from the property owner don't force them to give it to you in exchange for a permit that's the unconstitutional conditions test if
082you can pass both of those questions yep there's a you know we're issuing a permit we're asking for something in exchange it's there's a reason for why we're asking for it and it's roughly proportional it's not a taking so in any of these situations if you find out if a court says your government are abusing this property owner you've got to to a taking then the government really decides they're either going to go ahead and condemn the property pay for it or they'll rescind the regulation and just let the property earn do what they want to do that's the basic logic of a regulatory takings doctrine i've explained it in about what five ten minutes it takes me a couple sessions in my planning law class to really get it across to my suit so
083if you're feeling confused don't worry this confuses a lot of people i've tried to simplify it as much as i can but it's a pretty arcane doctrine that's the background that we went into this court case um in front of the sixth circuit now so let me go back to this what happened in fp development and specifically the unconstitutional conditions doctrine there's been some confusion about what exactly should this test apply um if you think about it most of the time when you apply a pen central analysis and ad hoc balancing tests usually the government wins because usually what they're demanding from a property owner is pretty reasonable and yeah it puts a burden on the property owner but it's not overwhelming and and so and nowadays it's pretty hard for government to lose a
084takings claim i mean usually we develop the regulations well enough that that doesn't happen but if you think about it if you have to ask these extra questions is there an essential nexus and is there a proportionality that's the course looking more closely at what the government's doing here and making it more likely that they're going to find a taking and so i think that's leading to some abuse of this doctrine the key thing to keep in mind is that the unconstitutional conditions doctrine only applies if what the government is demanding would clearly be unconstitutional at space all of the cases that have involved the creation of this test were cases where the government was telling a property owner give us an easement across your property if you're demanding an easement from a property owner
085and telling him or her she's got to let people walk across their lawn that's a physical invasion that's a taking you're you're taking something from them that's when you start to say well but maybe that's okay because they're being able to do something with their property they wouldn't otherwise be able to do maybe there's some benefit here that's coming back so usually what's happened is theoretically this test should only apply when you first realize that the demand being made by the government clearly would be a taken [Music] and then you apply these two-part tests the problem we're running into is in canton township's case the property owner alleged that an exaction a demand on a permit is anything that the government asks for whenever they ask for it whenever they demand a permit so stop
086and think about this basically what they're saying is if you have a permit condition on a site plan approval you're not giving anything to the property owner you're just checking to make sure that they're complying with the law but because it's a permit now the court's saying well that's an execution we have to apply this heightened level of judicial scrutiny the unconstitutional conditions tests if if this decision keeps going it's going to open up communities to a whole lot of litigation that they haven't had to face so far that's what got me that about dropped me off my chair when i first realized what was going on the better definition of exaction is that it's a demand being made under the color of law for something that you don't have the right to demand right
087it's a really burdensome onerous thing to demand and it's only when you've shown there's a taking happening here that you should apply this test okay what happened the trial court nfp development applied the test and they found he found it was a taking based on um his assessment of the townships test and and what happened was the township um i'll talk about this in a minute but they had what the court perceived to be old information they didn't have an individualized assessment to figure out is the benefit that you're getting or the harm you're trying to prevent roughly proportional to the demand you're making on the property owner it was just a mechanical application of a replanting scheme and the court did not like that when it went up to the sixth circuit we the
088map amicus brief for the first time pointed out to the court wait a minute this test doesn't even apply because canton township is not making a demand that's an exaction the trial court got it wrong [Music] this is where the court said an interesting question has been raised by this amicus franklin that we shouldn't even be applying this test but the parties didn't raise it and so we're not we're going to set that aside and we're going to go ahead and apply the test having done that the court affirmed the trial court's ruling and and held that there was a taking oh my gosh that's really bad precedent the interesting thing that happened two months or so after the six circuit came down with its ruling the um ninth circuit court of appeals answered a
089question it took up a case that addressed exactly this question and the way the ninth circuit ruled on it was exactly the way that we were arguing in our brief this is the way you should treat it so there is some federal circuit precedent out there now to say the sixth circuit went the wrong way fortunately for us the six circuit made it clear we're not answering this question we're setting it aside all that just to say there's some room here to move in a way that um maybe wouldn't have been the case but having said that now that the federal court cases have been resolved now the state court cases are back up after the property owner won his case the federal court the state courts proceeded the state court basically found for the
090trump priority and are following the same reasoning it's even more egregious in a sense this was a smaller lot this is now the second case the state case smaller lot but they cut down way more trees so instead of being assessed a forty thousand dollar tree replanting fine or fund requirement they this property owner was hit with a four hundred thousand dollar tree or planting fee they just took out so many trees the trial court um people had this i'm not going to read this all word for word for word but basically the trial court was very unsympathetic to the idea that township had any reason to be protecting trees and found that this was a overly burdensome regulation and um pretty much followed the federal district court's ruling in the fb development case and
091and found against the township so now the touch township has lost its um litigation in both federal and state court they lost an appeal at the sixth circuit they're currently this the state court case is up in front of the court of appeals right now as we speak not good precedent for um thinking about tree preservation in michigan at least so far we'll see how the court of appeals rules um we did talk briefly about another case that's been in litigation that's relevant this is ann arbor charter township again just quickly they've got a much more developed regulatory scheme to protect natural features there was a proposal to build at the corner of plymouth and 23 ki properties the planning commission denied their site plan that was upheld by their zba it went up to
092on litigation the trial court reversed ordered the township to issue the permit that got appealed up to the court of appeals the court of appeals reversed it's going to back down so now it's in litigation again on the merit so that the i think it's going to trial or it may be his country i'm not sure i don't checked on these questions about well does it constitute a unlawful constitutional claim the important thing about this case was that the way that i neighbor township did it was much better than the way that canton township did it they did a plane they did playing studies they really documented the resources they're trying to protect they folded them into their planning documents um and just did a much better job of documenting why they were doing what
093they're doing and then justifying why they made the decisions they made and how that's preserving natural features and that pretty clearly persuaded the court of appeals that there was much more merit to what was happening here in terms of the governmental regulation than what any of the courts in the kent township cases were doing so again and this is all just details saying that don't just spent the time to do the studies it needed to do to justify what it was doing and to make sure that the burdens it was imposing were reasonable for a particular property owner so this all leads us to some thoughts on how you ann arbor might think about what you're doing as you move forward with your pre-preservation ordinance the bottom line we keep arguing is do your planning
094studies do your work up front make sure you're documenting where your natural teachers are why they're important all of the ways that they're important fortunately for you there's lots of good and growing evidence about how important trees are for things like water quality and air quality and temperature mitigation and carbon sequestration all of those things none of that was done by canton township they hadn't documented anything along those lines so document document document layout goals and objectives that are clearly related down to the studies that you've done documenting important supernatural features link those objectives to your zoning code so make it really clear in your zoning ordinance or if you have a separate tree preservation ordinance or however you're doing it make sure you draw that link between the actual regulations you're adopting and the
095planning studies you've done and that if you're going to require mitigation you've got a pretty good process laid out for why you're doing it and why you're requiring the mitigation that you're requiring and then when you actually administer the permitting process um make sure that you do have tree experts some cultural experts somebody with some specialized knowledge on treating natural features do the analysis to be able to really document with the best current literature about what's going on here why this is important be prepared to be flexible make sure that you're accounting for the benefits that trees provide one of the quirks of canton township's ordinance was you have to replace dead and dying trees as if it were a live and healthy tree well that's not really fair at that point the tree's not
096providing natural features benefits and yet you're making the property and our fully mitigate for that maybe that's not so fair so kind of take a kind of site conditions in fact maybe sometimes good civil cultural practice calls for thinning out trees to allow the existing trees to grow better so there may be good reasons to allow cutting make that part of a good civil cultural ecological study and then tailor as much as you can but make sure it's reasonable the trial court i'm going to finish this off and includes my slides so that i can talk to you more one-on-one instead of to my screen um the trick here is to strike the balance between having really good analysis and preparation going in and then having really good process laid out so that when you're
097dealing with an individual property owner you're doing a particular assessment for that property to really justify why you're requiring what you're doing and why it's important and why it's needed and and you're able to tweak it as appropriate given site conditions there may be extenuating circumstances where you don't need to apply the ordinance as strictly as you did so let me just finish off by saying that canton townships i'll say this diplomatically i think what happened in canton township was the communities have been adopting tree preservation preservation ordinances for a while because we all know it's good to preserve in trees and i think somebody in the township just found an ordinance on the web that was out there that was offered as a model ordinance and they tweaked it a little bit and they
098adopted it and they never did any planning studies they never really documented what they have they didn't really think through carefully how they were going to administer it they didn't have they just had a staff planner on site who had no particular training i don't think in silver cultural practices or tree forged practices they might have gotten one involved but the person who normally administered it apparently didn't do that so in a way kent township did everything it could do to make it really hard to defend its ordinance and then it made it really hard for the lawyers to defend the ordinance when it got litigated so it was really hard you know this court of appeals and the trial courts were like why are you protecting trees we don't see any benefit because the
099township never pointed out all of the things that trees do all they heard all the courts heard was you're worried about aesthetics you want to keep it pretty you know keep some free trees and you're going to force this property owner to pay 40 000 to keep your athletics going that doesn't sound reasonable so they didn't document all of the reasons the trees are important and then they the courts just really felt that the process for assessing why are you demanding this from this property and i was too mechanical and in fact on on that deposition of the township planner basically said yeah we don't really think about it we just apply it well that's probably the worst thing he could have said um because it just it just hit the court like you've got
100this really unfair requirement that you're mechanically applying to these property owners and there's just nothing to take account of the site conditions or why you're really doing this to justify it so no good planning studies to justify where they were doing up front and really limited procedures to to apply it in practice and make sure it's working the way it's supposed to work for a particular property owner it's defendable so i am hopeful that the courts you know the nuances of what i talked about on the unconstitutional conditions test i hope the michigan courts don't go there even if they do it's not the end of the world for communities like ann arbor but it's just going to force you to be even that much more careful when you do your tree preservation work to
101make sure that it's justifiable and and that it's being applied in a reasonable way i hope i didn't lose you all i'm more than happy to answer questions um to better explain what i've tried to present thanks for your attention thank you very much for that review of a really complicated situation um i'm sorry to hear about that for canton and their loss um does anyone want to kick off some questions i usually means i flummoxed everybody so much it's pretty dense uh councilmember jish yeah i have two questions so one is going back to the point that knocked you off your chair you said so is is the idea that um did i i think i i have to have misunderstood you because otherwise this would be so broad but is the claim that
102was being made in the state case the state level case that went up to the sixth circuit court that any permanent any permit requirement is an exaction that's where you could read it that you could read the case to have established that that would be impossible that would be really bad yeah that and that's what has me sort of frightened about what's happened with this case and and how it's gone up to the sixth circuit fortunately there are better there are u.s supreme court cases that have pretty clearly said that's not the case and the sixth circuit in its decision said we know that question has been raised but we're setting it aside because the parties below didn't so they have the they have the ability to say well they didn't get briefed below so
103we're not going to entertain that case here having said that they went ahead and applied the test anyways and they still found it to be a taking so now the property owners are arguing in the state case state court case look they've applied it in the federal court you have to follow that so i'm really worried about that the other thing that happened was the ninth circuit which which addressed a question that was just right on this question does any permanent trip does any permanent requirement trip constitutional conditions and the ninth circuit said no there's got to be a real it's got to be an execution it's got to be a really unconstitutional demand to trip that extra taste so if this gets litigated hopefully the courts will go follow the ninth circuit and they
104won't follow the sixth circuit but we don't know for sure where that's going to go and it's kind of a mess if you have them treating in practice as if we're not going to address the question if it tripped it or not but we're actually going to act as if it did that's a mess so and then you've got the ninth that's good that's better than not having the ninth but it really does seem like an incredible mess i mean and it i mean there's just no way that per that that it's not okay for governments to require permits about things i mean that just can't that that doesn't make any sense so but it would save the city a lot of money i guess to get rid of all the departments that we have
105um reviewing permits yeah it would force cities to i think it would mean you'd stop issuing permits you'd just enforce your ordinance if someone's violating it you go after them and you tell them what the rules are and you don't do a permitting check process because that could trip a regulatory taking so you just put people on notice if you don't if you violate the law we'll prosecute you there's so many ways that this is actually harmful to property owners yeah be harmful to property owners but the courts weren't thinking that through because that wasn't the way it was framed as they looked at it yeah that's yeah there's a lot of loose discussion out in the literature about what an execution is that that these property owners picked up on and used and the
106court just took it without thinking about it and the township attorneys just didn't pick up on it either and they let it slip and that that created this condition where the sixth circuit said well they didn't brief it we're not going to consider it i thought courts were supposed to be smarter than that um so the um okay yeah so a concern that we have in ann arbor uh and currently is going on in my ward one of my constituents is that um our tree preservation ordinances don't affect what individual homeowners do on their property and so this is definitely a problem but it's really a problem when you're dealing with trees that are in a sense shared right there are lots of trees that are on the property line or that provide benefit to
107two property owners and so the feeling is that they are a shared tree and right now we don't have any way of of encouraging people to work out disputes over shared trees in a neighborly manner and uh so i'm raising this because and i and i'm kind of seeing that there's no point in asking this question because the law that you've just presented is such a mess right now that it would be it would be hard to say how far we can go with something like this do you think that we can take an ordinance path around this or do we need to try to think of a process path some way of of supporting and encouraging cooperation rather than doing anything that would look like we were affecting and taking so this is where
108i'm regretting that i didn't look at what you guys are up to so i can give you better advice um i think what i want to suggest is to go back at least in the terms of a regulatory taking go back to that phrase that the courts almost always recite now the regulatory takings doctrine is designed to ensure that some people are not forced to bear the burdens that everybody else should share right so the more that you design an ordinance that's hitting only a small number of people in a pretty big way the more likely you're going to get hit with a regulatory taking claim that could win so i would think carefully if you've got a tree preservation ordinance that carves out all out of the city or a lot of the part
109of the city and says it doesn't apply to you that starts to raise bing ding ding in my head the more that you can think about the applicability of this doctrine and really say this is a regulation broadly applied everybody who has trees has to comply with it in one way or another to a reasonable extent you can't claim if your property know that this is hitting me in a way that nobody else has to do it's not fair to hit me you should just pay me for it so i don't know exactly i think right now because i've had to deal with the city right if you do something on a tree line you've got to get a city permit but if you're in your own lot you don't is that the way the
110ordinance is structured is that correct have you thought about expanding the applicability of the ordinance beyond that or is that just off the table some people have and there is work going on right now but i have many many trees my neighbors have many trees they overgrow our property lines and we have a very cooperative environment i would say so we haven't had any problems but wouldn't a tree fall under the same category as a brick wall or a fence or you know a non-living object uh in terms of a requirement to maintain the property or well i'm just thinking if it's on one person's property and but its roots are growing on another person's property and branches are growing say and so for example and this hasn't happened my neighbor's tree is is getting
111very large and it's shading and threatening the bushes that i have underneath it that need more sun and so you know i don't mean to add more complexity oh sure putting on the complexity yeah that's i i don't think the taking neighbor to neighbor that has nothing to do with the taking sector right that's a neighbor dispute and and it it would probably be a private nuisance claim you're you're using your property in a way that's creating a nuisance i'm i think you'd probably have a hard case winning that let me come back and try to connect that back to um lisa's question could you build into your ordinance some way to try and prompt that kind of negotiation i honestly don't know i haven't thought about that that's a really good question to ask
112i don't think i can give you a really well-reasoned legal answer without giving it some more thought okay uh i guess my last question then would trees be a separate category i mean i think that if if a tree is growing onto someone else's property i wouldn't see that being any different than like a stone wall that's just sort of falling down on someone else's property you know or a driveway slab that sort of sliding so you so again two two bodies of law here one are conflicts between neighbors that that are is private law nuisance complaints you know if your neighbor doesn't maintain a seat a wall that caused falls onto your property you might be able to litigate to get where i'm eating for that i don't honestly know if the city's ordinances
113have protections in place you could argue that's a nuisance that rises to the level of being regulated at a city level so i think you're supposed to maintain your property in a way that's not dangerous or harmful to others by city ordinance so you can regulate through that approach the way that trees are different that i'll point out is trees have this amazing ability to provide environmental benefits that other things don't provide like sequestering carb carbon the shade they provide the water quality impact so they are a little bit different i think you can make a credible case in terms of the natural features they provide kind of like wetlands are their own unique type of habitat that's really worth the extra protection i think you can put trees in that same category as a
114natural feature that merits some extra protection that might then justify the city adopting ordinances that or protections that are a bit more stringent in protecting trees than say it would for pachysandra or you know other kinds of iv ground cover or something like that but you want to be able to document that and you know justify why are we picking out trees is something that we're going to take extra steps to protect and how will they work that out and then you would want to fold that in to make sure what whatever you're doing is consistent with the kinds of conflicts that you're talking about so that there are moving parts here and interconnections that you need to be careful of and mindful of as you plan out your revisions oh okay thank you and
115yeah that's given me some ideas in terms of water flow and wetlands protection if trees are are classified in that area rather than just a sliding cement slab then that makes sense yeah there are natural features that provide some real benefits that kinds of features don't necessarily provide thanks yep um i'm gonna call on myself for a second um i really wish that chris graham was here because he is our lead on the natural features ordinance and um would be best equipped to answer some of the the details that or the questions that you have on our ordinance which does not provide much protection on private property um but the the one another issue that i think you touched on a little bit but is tree roots crossing property lines and the effect that um
116action on uh neighbors property could have on the um potential life of a tree that's thriving on a border and and how to address that kind of thing is is a big kind of potential problem um and i want to just mention two other things um the i would be great to have a conversation with you about the potential for future solar blocking of trees since we are moving into a lot more solar panels on houses and the potential is that i'm worried that some people might remove trees in preparation for solar panels or complain about a neighbor's tree that might be shading their their panels over time and how we would deal with that is yet another complexity i think that's so let me show a personal experience we have solar panels on our
117garage we had to take out a pear tree because it was blocking almost all of what where the solar panel now is so we lost a tree but um this really i really resonated on the prior presentation we're not paying electric in the summer anymore because we're making all of our own and we were able to do this before dt got rid of net metering so we're not paying for electric could be the winner too um so there are going to be trade-offs where there are definite environmental benefits from different things and there may be times and places where you hate to see a tree go but it's actually maybe the appropriate thing to do which is to say your ordinance probably should be have a balancing mechanism or approach in there to think about
118the other features that are at play or the other environmental issues that are at play that may actually warrant in some instances losing losing trees [Music] i hate to cut down a tree i planted a bunch of trees on my property but sometimes we couldn't have solar if we had left if we but that left the tree up um about tree roots i don't have a definitive answer but i think you know you can regulate you can regulate how people treat the trees on their lawns right you um you can't go out and cut down a tree on a tree line i don't think can an arbor it's prohibited those are public trees yeah so if if a tree root is naturally growing into a neighbor's lawn i think you could reasonably and you're going
119to regulate trees to protect them you probably can reasonably regulate someone so that they can't cut that you know do damage enough to the roots of a tree that it would kill it but again you're going to want to think that through carefully um you know i can think of parallels you can't let water run off of your property that would create a nuisance for neighbor the water is a natural thing it's there it's moving groundwater moves underneath our properties just because it happens to be under your property in one moment doesn't mean you conclude it because you know it's going to be on your neighbors the next minute so the fact that tree roots are crossing property boundaries i don't think is insurmountable to the idea that this is a natural living feature that
120we still can regulate that's the off-the-cuff thought in response to that right i do like your idea of building in some mechanism that encourages um discussion between neighbors and and negotiation or whatever it is you know so that there's something to rely on as opposed to the cold knock on the door you know with somebody who's got a plan or someone waking up and saying hey there's a chainsaw next door that i didn't know anything about um that kind of thing i think would be really good for us you have okay you have a parallel in that with your backyard chicken ordinance which requires people to check with neighbors i know that too because we have chickens and i haven't heard that as well so i mean there may be some precedent for setting up
121mechanisms you you can maybe cut a tree down but you got to get if it's on if it's within so many feet of of a of a lot line you need to get your neighbors permission or something i don't know i mean just off the cuff i think the mechanisms you could create to try and encourage that kind of communication right good i like that uh i i saw um commissioner marzian's hand up i don't know if you still have a question sorry no i i i had one and then i'm retracting it okay all right um did anyone else like to ask a question while we're here well professor norton i just want to say thank you very much for providing some really deep questions for thought um and kind of a warning for
122us in terms of how we move forward and how to do it more carefully so yeah i'll just say i know kevin mcdonald is a really good landis attorney so you know be sure to consult with him sure and i'm more than happy to chat with you more answer questions that you have then this this is a topic that's i'm quite interested right super i'm glad to hear that yeah and once again thanks for at least for making this connection you're very welcome all right thank you thanks and good night um right uh so we have finished with our presentations we do not have any um new business or old business that would require us to um proceed to a vote on anything and so i'm going to move to the reports from committees and
123commissions so um i'm going to start with who i'm going to just go around what i see as my circle so um and could i ask you to talk about parks is there anything that we would like to present to the i don't mention i don't have anything new to report from parks because our meeting this month uh actually is next week um yeah so um yeah no no no no no right right thanks um and um john caliber anything on would you be um solid waste right uh circular economy no uh lots of things continuing to go on uh with that project we were at the green fair uh earlier this month top of the park uh we i think last at a previous meeting we shared our website we continue to update that
124there is now a map of circular economy businesses on that website and we're improving the functionality of that based on additional information and sorting features helping people you know find the information we've got three kind of pilot projects going on this summer with our students who are working with us uh one is collaborating with recycled ann arbor one is recyc collaborating with the anniversary shop and the other one is with the ann arbor district library and with each of those we're kind of taking a little bit deeper dive in terms of how might we best define circular economy around our metrics of decarbonization resiliency and equity and how to best kind of promote and lift up different efforts across the communities because there's kind of so much going on and i think our kind of
125belief or kind of mission with this is that that can be very impactful in terms of a20 that that's kind of the driving force with all of this uh tomorrow we've got a meeting with about a dozen partners who've been with us for about the past year different county city uh community organizations university to kind of give them an update about where we're at and talk a little bit more about how we might best partner particularly around creating a circular economy uh business incubator to help promote the creation of new businesses with that spark is a key partner in that and then later in august we are planning a community outreach so for broader uh kind of community discussion around what we're doing with circular economy we should have a couple of videos ready soon
126and we've got all our fingers and toes crossed for a state grant that we've been waiting on for about a year that will bring in a little bit more money uh hopefully help us really focus on working with uh bipod communities in this area lisa miss anything that was excellent and the only thing that i would want to add is just to remind everyone that there was the we we have under the zero waste working group we have the circular economy project and we still have a zero waste uh sector and uh there was another zero waste challenge um the i think was the first full week in june i was gone for that week but um there were 500 people 500 new people who participated in that challenge which again was led by samuel
127mcmullen who is uh boarded and raised in ann arbor uh lives in new york now but runs this challenge um and and one of the great things that came out of that was there were a number of circular economy i would say call them circular economy he would call them zero waste businesses at the fair and they looked at each other and said hey didn't know you were doing this and so that goes back to what john was talking about our efforts to promote connections which makes resiliency which also creates momentum and uh and and enlarges the circular economy and so we are we're just really um things are happening so fast that pretty soon it's not going to need us to be pushing it anymore we're going to run us over right it's exciting
128i'm happy to hear it um okay let's see um edie would you like to report on energy happy to do so uh and excuse my voice i have laryngitis um we in last uh meeting at energy commission there was a presentation by the washington um on the washington county climate action plan um which provided a great overview of where they are where they're going with that plan which is slated to be presented to the board in november um and so that's available um legislator if you're interested in looking at it and missy also gave an overview of the a20 program now that it is turning two and um walked us through some of the accomplishments on what is much to be done and what's coming in the nature so also available for review okay um
129this is kind of pretty oh john go ahead i just wonder edie if i could ask a question and this is just kind of things i've been hearing is there a move to add uh from dte to the energy commission is that anything that you can speak to just i've been seeing that on social media um i missed the latter portion of last month's meet um and i have not heard that myself so that's not something i can speak to at this time but um i will um update next month if there are any changes thank you i believe that is the case that's that is what i've heard as well but it didn't get addressed during this most recent council meeting um well it's not a i mean it's not a wrap it's a
130it's an ann arbor resident who works for for dte but who has uh and of course we have had investor owned utility people on the energy commission before and um there's no expectation that they either are like their employer or that they will advocate for their employer but rather that they bring the perspective one of many perspectives that they can bring is that they do work for dte there's also a rep from or there is a member of ann arbor public power on the energy commission so yeah so yeah and that didn't come up at council because there were so many council members who got confused about the schedule and didn't make the meeting that we couldn't bring it up um bridgette would you feel comfortable talking about the youtube pollinator network and if not
131i'll jump in sure i don't know that there's a lot to update since our may meeting but we have met again to kind of debrief on nomom and um just the pollinator network in general and you know maybe define more solidly defining our mission and our path forward and some lessons learned and how we can think about next year's no moment and i i think just as of yesterday we've i have not but other members have put together a survey that we'll send out to residents that participated to get their feedback so we can use that um to inform our plans going forward did i miss anything arena yep that's good yup uh thank you uh and i guess i want to just bring up one thing that is um we haven't had a meeting
132of the water quality group but i just wanted to raise the issue that maybe some of you saw today in the news about some new testing that identified some groundwater plume and some that has is flowing towards um the human river within a thousand feet even of of that area um so i'm raising it as an issue of concern for all of us um and we know that there is um some effort to um looking for the epa to get involved with cleaning up the galman gloom and um this is just yet another reason to indicate that shows that there is urgency i think the area in of concern is inside township um and it is an individual well that at low low concentrations but still something that wasn't known before uh kathy uh just
133a a couple of other things that um recently happened regarding gelman uh there was a court hearing uh judge connors did not hear the case however uh i think it was significant that in uh gelman preparing their brief they outlined the work that they have been doing or claimed to have been doing and are doing now so that's a positive there will be oral arguments in the gelman appeal in two weeks and i don't know the exact date yet and also congresswoman debbie dingle uh announced today in an email that she did uh meet or communicate with at least um epa region five so i think that uh while it is very disturbing that we have found dioxane so close to the huron river we are at least the good news is we're using a
134more sensitive i think would be the word uh testing method and so we can detect at smaller levels of dioxane and we have everyone's attention attention now from the uh township all the way up to the federal government i would recommend that uh everyone read the mlive article today if you are a subscriber uh and you can simply google gelman and the article article will come up there's a lot of technical information about the testing so anyway there's there's at least significant movement and activity even though we can't say yes the epa is going to be in here cleaning it up anytime soon uh i think a lot of progress has been made in the last few weeks thank you kathy um is there a report from council on either council member griswold or dish
135i just want to report on a couple of ordinances that the environmental commission passed and referred to council one is the u of m workforce housing resolution which really was a long shot but uh momentum is continuing to grow on that uh i talked to garland gilchrist the lieutenant governor and he said take a look at governor whitmer's may housing plan which um would would have a section in there that is consistent with what i'm doing i talked to a number of community leaders and the response i get is usually can you give me more information or have you talked to so and so because i think they'd be very interested in it as well so it's going to be a long process to build the community support that we need and um so i'll
136just stop there the other one is uh chapter 40 which is a vegetation ordinance i did talk to kevin mcdonald after the council meeting and staff is looking at it and they want to do a thorough review of it so those two resolutions are continuing to be worked on and and i don't know uh lunia if you want to mention anything about student support for u of m workforce housing we haven't talked recently but i'm hoping that we can build that support in the coming months certainly once um when school uh begins in september i anticipate that that'll be a good time to initiate student engagement oh okay great that sounds good uh okay did i miss anything that i would like to report okay that's the case and um galen could we maybe this
137isn't the time yet for future agenda items is should i wait in the agenda or it's it's coming up oh okay after this one so let's do it galen and that than that galen any reports from staff uh nothing at this time uh however uh last week we just completed a successful uh 820 week so now we wrapped up all the activities congratulations okay kathy now we're on to items for next agenda oh okay um i'm very interested in stormwater management and it i think it would be interesting to get an update from staff on what they are planning to do and i believe we had a sorry i'm i had ice cream social today and i've been baking in the sun i'm not thinking straight uh we had an update in that small water
138subcommittee meeting by uh larson who talked about a program where they're going to evaluate stormwater and do a comprehensive study is that true or did i hear it somewhere else anyway i don't mean to take up a lot of time but i i think that there is a study going on and that uh stormwater is going to become a a bigger issue with climate change and so i i think that uh it would be good to discuss what the city is doing now okay so you're talking about jen larson particularly yeah john larson had mentioned that to me okay all right uh we can investigate that um any other items that anyone would particularly like for next meeting or a future meeting council member dish isn't it jennifer lawson did i say yes you're right
139thank you she she heard the work of two people so i guess she could have two names i just didn't want you to be looking up someone that you couldn't right thank you um okay um back to my list here okay our next scheduled meeting is july 28th 30th of the at the end of the month the fourth thursday as usual and we are now at a point excuse me on our agenda for additional public commentary and please excuse me while i get to a script that i have to do okay um this is an opportunity to speak for up to three minutes um members of the public can call one [Music] 877-853-5247 and enter meeting id 915-8343-9176 the information is also on the meeting agenda in the video feed city staff will select callers
140that have raised their hand one by one using the last three digits of your phone number in order to electronically raise your hand to indicate your desire to speak please press star 9 on your phone you'll hear an automated announcement that the host is allowing you to speak when speaking please move to a quiet area and mute any tv or background noise so that we may hear you clearly please state your name and address at the beginning of your comments and be patient if there are any delays we'll work with you to get through um and the the prompt to unmute yourself is star six i believe so galen do you see anyone who would like to speak with us there are no callers okay we'll give at least 15 seconds wait [Applause] oh there
141is one caller okay let's welcome them um i only see the last three of his uh or her number but uh caller zero five three please go ahead and speak uh we need this star six right is that to unmute um yep i'm acting them to unmute thank you caller go ahead and speak call of zero five three please go ahead and speak it looks like they're still muted according to the screen is that anything that you can undo gaming i'm asking them to uh unmute now i'm hitting up extra on mu button thank you and then john has his hand up as well let's see that okay let's let's continue to try and um john you have to comment sure i was just wondering if there's been any information shared about future meetings if
142we're going to continue in zoom or meet in person or i cannot i i do not know that i haven't heard any change um i know that city council is meeting in person um with masks in city council chambers but i haven't heard that for us yet thanks i'll put that on a note to investigate the caller hung up oh i'm sorry sorry caller uh i asked you perhaps write your comment to ec a2gov.org and my apologies to getting through so i would ask for a motion to adjourn all right thank you very much i appreciate your and i learned some things and going good night