City Council Recap: Council Signals Approval of PUD after Closed Session

Council chambers at Lowell City Hall was full of people last night, but they did not get to hear councilmembers discuss a proposal to rezone the former Unity High School property to a planned unit development (PUD). Instead, that conversation happened behind closed doors at the end of their regular meeting. After the closed session, all councilmembers signaled their inclination to approve the zoning change at their next meeting.

Other action at last night’s meeting included setting a public hearing for a recreational marijuana facilities ordinance as well as updates on a possible water and sewer authority and the city income tax proposal.

Professional Opinion on the PUD Proposal

Residents who came to voice their opinion on the PUD proposal had to wait nearly an hour before getting their chance at the podium. After addressing three items of old business, councilmembers invited Andy Moore, a consultant with engineering firm Williams & Works, to provide an overview of the PUD proposal.

Moore walked councilmembers through a 15-page memo he provided that outlined the objectives and qualifying conditions for a PUD as well as the rezoning standards and the floodplain overlay district standards.

Within his memo, Moore suggested the Lowell City Council may want to discuss the following topics:

  • Size and maintenance of open spaces within the PUD
  • Architectural compatibility of the proposed buildings with surrounding properties
  • Impact of the proposed development on the downtown and its consistency with the city’s master plan

For his conclusion, Moore wrote:

At the September 3, 2019 public hearing, the City Council should discuss the site and carefully consider any comments from the applicant and the public. In addition to the overall project, the following specific items should be discussed by the City Council:

1. Whether the applicant should provide relevant market data showing that the development in this location is appropriate.

2. The intended land use for the concrete area located in the southwestern portion of the subject property.

3. If the quality of construction will meet or exceed that of other buildings in and around the City.

4. Whether the applicant has sufficiently demonstrated if the proposed PUD is consistent with the adopted Master Plan.

5. Whether the capacity of public services and facilities is adequate and any additional questions regarding grading, stormwater management, and capacity of the floodplain.

6. Whether the lowest floor in the floodplain is elevated at least one foot above the base flood level.

7. Whether all necessary permits by the appropriate local, state, and federal authorities, including a floodplain permit, or whether a letter of no authority from the Michigan Department of Natural Resources under authority of Act 451, of the Public Acts of 1994, as amended, has been received. Where a permit cannot be issued prior to the issuance of zoning compliance permit, a letter from the issuing agency indicating intent to issue contingent only upon proof of zoning compliance could be acceptable.

Limited Council Discussion in Open Session

Despite Moore’s recommendation, Lowell City Council did not discuss any of the above items in open session. It is unknown whether these issues were raised in closed session, but if so, the applicants – developers Jerry Zandstra and Todd Schaal – were not present at that time to answer questions.

Prior to Moore’s presentation, Mayor Mike DeVore invited Schaal to the podium to offer remarks if he wished. Schaal noted that Moore’s report was thorough, and he and Zandstra were excited to start a project that would “add a significant amount of money to Lowell’s coffers.” Later, City Manager Mike Burns clarified that property tax dollars generated by the project would be captured by the Downtown Development Authority and would not go into the general fund or be used for road repairs.

Councilmember Greg Canfield noted the PUD ordinance had been changed last year, and he asked Burns to describe how those changes came about. Burns replied that he had been approached by the developers in the fall of 2017. By summer of 2018, it appeared that their plans, which at the time included a mix of residential, retail and office uses, wouldn’t comply with the provisions of a mixed use district. Burns added that when he worked in Fenton, PUDs were regularly used for downtown projects. He disagreed with the notion that the PUD ordinance change was enacted solely for the benefit of this project although documents obtained through the Freedom of Information Act indicate otherwise.

No Questions Answered During PUD Public Hearing

Ron Janowski addresses Lowell City Council during the public hearing.

When the public hearing opened, those in the audience were directed to provide their name to the city clerk so they could be called to the podium. DeVore made it clear that the council would not be answering questions during the hearing. “It’s a public comment, not a question and answer,” he said. “If you have questions, you’ll have to bring them to us at another time.”

Overall, five people spoke or sent letters in support of the project while four were in opposition to the current plans. Another 30 people signed a form on the RiverView Flats website indicating their support, but it is not known if they are residents of the community.

Ron Janowski, a resident and owner of the Flat River Emporium, was first to speak. He noted that his business is located in the building that formerly housed the Lowell Antique Mall. That property was rehabilitated by Zandstra and Schaal. “You’re concerned about a blight,” he said, referencing the Unity High School property which has been vacant for at least 15 years. “I guarantee these guys will not leave a blight.”

On the other side of the issue was John Wenger, who has spent years working to build up the Sizzlin’ Showboat Concert Series. “That property has been in the public sphere as long as we can remember,” he said. He thought it was a mistake that the city ever allowed it to be sold to private developers. With so many people parking on that property during the concerts and other events, he worried about the impact of turning the space into condominiums.

Another resident from Lafayette Street was concerned about the additional traffic that 44 residential units would bring to the neighborhood. She said that people are already parking in front her house for parades and festivals and mentioned her concern for the safety of children biking in the area.

At the end of the public hearing, councilmembers had no comment or discussion and moved directly to the next item on the agenda. They did not table the idea, ask it to be added to the next meeting agenda or otherwise indicate the next step for the project.

Action Taken After Closed Session

At the end of their open meeting, councilmembers voted to go into a closed session “to discuss a legal opinion subject to attorney/client privilege.” Apparently, this exception to the Open Meetings Act is allowed to discuss the written opinion of an attorney, per the case People v. Whitney.

The closed session lasted approximately 50 minutes. When the council reconvened in open session, City Attorney Dick Wendt asked councilmembers to indicate whether they were inclined to approve or deny the PUD. All councilmembers indicated they were inclined to approve.

Then, councilmembers walked through the conditions included by the Planning Commission in their recommendation. Lowell City Council removed the condition that there be a deed restriction for 238 High Street which would tie the 18 parking spots on that site to the PUD. By removing this condition, it appears the PUD will only be required to provide 49 of its own parking spots and the remaining 39 spaces would be filled from nearby public parking lots.

Lowell City Council then added a new condition that would require developers to add a curb, gutter and sidewalk to the north side of High Street during phase one of the project.

By consensus, councilmembers directed city staff to draft a new document with these changes. It will be brought before the council at their next meeting for a vote. When asked why discussion regarding the PUD application happened in a closed session, DeVore replied, “Because it required a legal opinion.”

The city council then went back into closed session “to discuss pending litigation.” While the Michigan Court of Appeals has ruled that public bodies must identify the specific litigation to be discussed in a closed session, this information was not supplied by the council or listed on its agenda.

The next regular meeting of Lowell City Council will be held on Monday, September 16, at 7pm on the second floor of City Hall.

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