Dissolving Brownfields Plan Review Committee: “Streamlined” Process to Give Money to Developers

Apr 30, 2023 | City Council

At the May 1, 2023 meeting, City Council will consider a resolution (DB-1) to dissolve the Council Brownfields Plan Review committee.

DB-1 (23-0605) Resolution to Dissolve the Brownfields Plan Review Committee

The Brownfields Plan Review Committee is tasked with reviewing developer requests for tax abatement through a program administered by the Washtenaw County Brownfield Redevelopment Authority (WCBRA). This program uses public dollars to fund the rehabilitation and redevelopment of parcels that are environmentally distressed.

BACKGROUND

The resolution in DB-1 explains the history of the City’s participation in the WCBRA:

“Whereas, The ACT requires explicit consent of each local unit of government included in the Authority, which the City of Ann Arbor joined by resolution R-24-1-02;”

Resolution R-24-1-02 (approved on January 22, 2002) is actually a purchase order for five police vehicles. However, on the same agenda, Council considered resolution R-35-1-02 which is relevant to brownfield funds. That 2002 resolution described how the City Administrator would lead a process for awarding these funds (emphasis added):

RESOLVED, That the City Administrator develop an implementation procedure for project approval for the program in cooperation with the Washtenaw County Brownfield Authority, to be utilized by the City to ensure compliance with the stricter cleanup standards and that such procedure be reviewed by the Environmental Commission and be approved by the City Council prior to the approval of any project 

https://a2gov.legistar.com/LegislationDetail.aspx?ID=264763&GUID=1070B035-D0DE-418D-8E89-D0ABADBE93AE

On April 7, 2003, City Council established the Brownfields Plan Review committee. The approved resolution R-127-4-03 explains (emphasis added):

“Whereas, The Plan, as adopted, did not include an adequate process for fact-finding, community input and Council review and/or action as an application progressed through the application process to the Washtenaw County Brownfields Redevelopment Authority to final action, if necessary, by City Council; and
Whereas, It is in the best interest of the City to amend the Brownfields Implementation Plan to revise the application process to include:
1.) Establishment of a Brownfields Plan Review Committee comprised of up to four Council members and staff appointed by the City Administrator, formerly described as and functioning under the Plan as the Brownfields Advisory Group (BAG), and City Attorney, or his/her designee, for the purpose of co-coordinating the application submission process, up to and through, a determination by the Washtenaw County Brownfields Redevelopment Authority. The Committee may conduct any fact-finding it determines necessary to the application process and may recommend specific actions at any stage of the process to Council; and
2.) Development of a community forum on the Brownfields Implementation Plan to be conducted prior to submission of any application to the Washtenaw County Brownfields Redevelopment Authority to provide greater public participation at the initial stages of the process.”

https://a2gov.legistar.com/LegislationDetail.aspx?ID=264739&GUID=01FB44F5-D732-4E43-8EEE-A4706F81EBD7

More recently, City Council revisited internal policy around review of brownfield fund awards. On September 16, 2019, Council unanimously approved R-19-419, which enumerated specific policy for brownfield plan review. That review process (in this order):

  • Review by Washtenaw County Brownfield staff
  • Review by City Staff
  • Formal application to and review by the City Council Brownfields Plan Review Committee
  • Review and comment from a Sub-committee of the County Brownfield Authority
  • Approval from Ann Arbor City Council
  • Review by Washtenaw County Brownfield Authority
  • Public hearing and approval by the Washtenaw County Board of Commissioners.

That 2019 policy allows reimbursement for non-environmental activities; a staff memo at the time explained why:

“In recent years, the City has put an emphasis on more clearly defining community benefits in exchange for supporting non-environmental brownfield eligible activities, such as affordable housing and public infrastructure.

The adopted 2015 Affordable Housing Study recommends the City adopt a Brownfield Policy that can be leveraged to achieve affordable housing goals.”

And

“This policy memo is further intended to emphasize that in order to qualify for public financing of brownfield expenses, preferred public purpose goals must be met.”

The 2019 policy established this standard (emphasis added):

3. If a project includes residential land use, and Non-Environmental Eligible Activities are requested, and is not already paying a Fee in Lieu of providing affordable housing as part of a Planned Unit Development, affordable housing must be included. In those cases at least 15% of the total number of units must be provided to households that earn a maximum of 60% of the Area Median Income, with rents established using MSHDA rents and MSHDA PHA Utility Allowances, for at least 99 years.

https://a2gov.legistar.com/LegislationDetail.aspx?ID=3954861&GUID=616AE499-D39D-43F2-88C5-7FB7157EBD1F

WHAT IS PROPOSED

This week, Council considers eliminating the Brownfields Plan Review Committee (BRC). As described by staff, eliminating the BRC will provide a “more efficient and streamlined process for Brownfield projects.” Dissolving this committee would “streamline” decisions that have been consistently identified as requiring more consideration, not less.

In 2002, the first brownfield funding policy directed that requests from developers would be reviewed by the City’s Environmental Commission. Policy approved in 2003 created the Brownfields Plan Review Committee (BRC) and emphasized the need for “fact-finding, community input, and Council review.” In 2019, Council approved policy that re-iterated the level of review provided by the BRC. If the BRC is eliminated, requests for this funding will go straight to City Council for a vote.

How much does this actually matter? At the Council meeting on April 16, 2022, Council Member Linh Song suggested that City review of these brownfield funding requests was less important because such requests are eventually reviewed at the County level (emphasis added):

“If we are on this path of trying to remediate parcels so they can actually be used, I feel like this Council has had the experience and understanding what that means and the impact and knowing that this would actually bring some timeliness to the cleanup and additional dollars that can be leveraged as an additional oversight with the city and the county and the state because we actually have to qualify under state regulations in order to capture these TIFs. So should there be some discontent about how this City Council functions or reviews these projects, there are other authorities who also take a look at this too.

https://www.youtube.com/live/oaYHCuOpXPg?feature=share&t=11579

POLICY IN PRACTICE

On March 6, 2023, City Council considered a request for brownfield funds from the developer of “The Village” at Pontiac Trail and Dhu Varren. The developer requested reimbursement for environmental-related activities ($26,369,633) and non-environmental activities ($5,000,082). At a public hearing, residents pointed out that these non-environmental activities were not eligible for reimbursement, because The Village did not include any affordable housing or payment of fees in lieu (standard 3, above).

Regarding that specific standard and brownfield funding for The Village, a staff memo explained:

“The proposal does not meet this standard. The project includes residential land use, and is not proposing to include affordable housing”

And

“The Non-Environmental Activities consist of improvements requested by the City Planning Commission. These include construction contribution for roundabout at Dhu Varren and Pontiac Trail, Full Electrification of the for-sale units, solar street lights and clubhouse, and water harvesting through urban stormwater management.”

http://a2gov.legistar.com/View.ashx?M=F&ID=11664221&GUID=784B18B3-988F-4528-8107-49DAE090AEA7

At the Council meeting on March 6, 2023, Council Member Disch explained that City Council was empowered to set aside policy standards:

“So as the staff report makes clear, it is correct that because a component of Brownfield TIF funding is dedicated to non-environmental uses for this project, the developer would normally be required to provide a 15% affordable housing component or payment in lieu. Now, it is within the discretion of council to refuse to waive this requirement, which was waived by the Brownfield Committee.”

Ultimately, City Council unanimously approved all the brownfield funds requested by The Village (both environmental and non-environmental activities) which moved the proposal forward for review and approval at the County level. Coincidentally, just this past week, that proposal was considered by the Washtenaw County Board of Commissioners. Their meeting highlighted and underlined why these brownfield fund requests should receive more – not less – consideration at the City level.

CITY VS. COUNTY

At their April 19 meeting, the Washtenaw County Board of Commissioners considered the brownfield funding request for The Village. Former state representative and current County Commissioner Yousef Rabhi questioned the use of brownfield funds for non-environmental activities. He reflected on his previous service as a County commissioner, his experience of the brownfield funding process, and just how much oversight the County is permitted once the City approves a plan:

“Towards the end of my term, my last term in 2016, when I was serving on the Brownfield Redevelopment Authority, I put forward a proposal to use a portion of our, what was called at the time local site remediation revolving fund which each project pays into. My proposal would basically have said that every project that received a grant or a low interest loan from the county’s fund would have an affordable component to it, not fully affordable, but just have an affordable component. And I believe that I whittled that requirement down to just a few units. And the argument was made at the time, hey, we don’t have authority, even though we’re called an authority, we don’t have authority because the city gets to decide everything for us. And, you know, and so we just kind of have to rubber stamp whatever they give us.”

When County Commissioner Katie Scott echoed concerns around use of brownfield funds for non-environmental activities, the Washtenaw County Brownfield Redevelopment Coordinator, Nathan Vought, urged her not to amend the plan, explaining (emphasis added):

“The first stop at any approval is that local unit. We don’t ever see a plan unless that local unit approves it. All the kind of the nuance here that we’ve been talking about was all done at the city of Ann Arbor level. And as stated, there was a lot that went into it. And this is what the planning commission approved and what City Council approved. So I kind of always back up to, I don’t want to make you all feel like this is a rubber stamp. However, we’re providing a service. This is a regional economic development service‚Ķ I’m really hesitant to start messing with their approved plans right.”

In fact, the Ann Arbor City Planning Commission does not approve brownfield funding plans.The City Planning Commission approved a site plan and requirements for The Village, but it did not ever vote to approve brownfield fund reimbursement for the developer. The Brownfields Plan Review Committee (and eventually the whole of City Council) is where discussion and review of these decisions happens. If DB-1 is approved – dissolving the Brownfields Plan Review Committee – these decisions will land on City Council agendas without any additional review by committee or commission.

WHY THIS MATTERS

On March 6, 2023, when City Council considered brownfield funds for The Village, residents participated in nearly an hour of public hearings; they raised concerns that reimbursement for non-environmental activities violated City policy. After this public hearing, City Council discussed the brownfield funding for less than ten minutes before approving it unanimously. When the Washtenaw County Board of Commissioners considered the same proposal, they heard a fifteen minute presentation from the developer, then debated the issue for nearly an hour. The County Commission approved it at first reading in a split vote: three opposed and six in favor.

As compared to City Council, the County provided significantly more thoughtful debate of this brownfield funding proposal. County Commissioners pressed the developer for specific explanation of all activities subject to reimbursement, profit margins, the price point of anticipated housing units, and details about a plan to vent methane onto neighboring properties. This level of engagement would be reassuring, except for the fact that County commissioners are strongly discouraged from second-guessing plans approved at the City level. The City of Ann Arbor is recognized as the “local unit” for approval of brownfield funding requests and it is expected that the City review these plans thoroughly before moving them forward. Once City Council has approved a brownfield funding request, it is highly unlikely that any terms will be changed or amended at the County level.

TIME & MONEY

The BRC meets infrequently, only when there is a specific application for brownfield funds. Since November 2020, the BRC has only met three times: 1/31/22, 6/2/22, and 1/6/23. Each of these meetings considered millions of dollars in public subsidy of private development:

Current members of the BRC are Jenn Cornell, Jen Eyer, Ayesha Ghazi Edwin, and Cynthia Harrison. Explanation of DB-1 – which would dissolve the BRC – includes this statement:

“At their January 6, 2023 meeting, the Brownfields Plan Review Committee unanimously recommended this action.”

Minutes for the 1/6/23 meeting are not yet posted on Legistar, so there is no record of who may have been absent. However, if all members were present at that meeting, three of them were attending for the very first time – they voted to dissolve the committee in their very first meeting, after considering and approving exactly one plan. (Coincidentally, the BRC meeting on 1/6/23 also approved brownfield funding for the Village.)

If approved, DB-1 will add to a growing list of policy changes designed to reduce Council’s workload, oversight responsibilities, and accountability to residents. Beginning in November 2020, a majority of Council led by the Mayor voted to:

In just the last six months, City Council voted unanimously to

City Council is rapidly paring down the role of elected representatives by delegating responsibility to either unelected Mayoral appointees or the bureaucracy at City Hall. The change proposed this week reduces Council consideration of decisions that award millions of dollars in public subsidy for private developments. At least one Council Member thinks that the County Board of Commissioners can compensate for any failures at the City level. It can not.

In the context of brownfield funding discussion last week, County Commissioner Yousef Rabhi shared an approach that I believe should be embraced by every elected official:

“I did not get elected to be a rubber stamp, plain and simple. So when an item is presented before me, I am going to consider the pros and cons and I’m going to vote the way that I believe is in the best interest of the people of our community.”

You can watch the whole Washtenaw County Board of Commissioners’ discussion of “The Village” here (time stamp 2h 8m 46s)
https://www.youtube.com/live/esTRui6EXgU?feature=share&t=7726