Last week, the Great Lakes Environmental Law Center joined with several local businesses in a lawsuit against the City of Ann Arbor over greenhouse gas pollution and other environmental impacts that will result from a massive new underground parking structure. The complaint also includes claims against the City for violating the Michigan Open Meetings Act with secret email deliberations and communications regarding the proposed $50 million parking structure. Further, because the City refused to disclose the full extent of these secret email deliberations and communications when requested by the Great Lakes Environmental Law Center pursuant to state law, the lawsuit seeks relief for violations of the Michigan Freedom of Information Act.
As detailed below and in the linked documents, the City made a decision to borrow $50 million for a parking structure that its own study concluded is not needed, ignoring the comments and concerns from the Chairman of the City’s own Environmental Commission that the parking structure would increase automobile pollution and greenhouse gas emissions contrary to the City’s own environmental policies, and the City Council made this decision with secret email deliberations in violation of the Open Meetings Act, then failed to disclose those emails when requested pursuant to the Freedom of Information Act. The dictionary definition for “boondoggle” may need to be updated to include this project and process.
The City Council approved bonding and construction of a massive new $50 million underground parking structure back in February, despite a 2007 study conducted for the City’s Downtown Development Authority (the agency that proposed the project and would operate the parking structure) which concluded that new parking is not needed. (Full disclosure: my wife is currently a member and the former chair of the DDA’s volunteer board, and voted against the parking structure.) The Ann Arbor Downtown Parking Study, prepared by the well-respected Nelson\Nygaard firm, concluded that: “Overall parking supply is sufficient to meet existing demand. The fact that utilization across the overall inventory fails to rise above 85% during peak periods indicates that overall supply is sufficient.” (Bold in original, see Phase I Final Report, at page 3-41.) Instead of borrowing millions of dollars to build a parking structure that’s not needed, the study recommended numerous options for the City that would be cheaper, less polluting, and better serve the City’s transportation needs, such as making the City more accessible for pedestrians and bicyclists, improving transit, and managing parking demand with market mechanisms. (These recommendations and many others are detailed in the Phase II Final Report, at pages 5-5 to 5-23.)
The City Council’s approval of the parking structure also ignored the comments, concerns, and recommendations made in writing by the Chairman of the City of Ann Arbor’s Environmental Commission. The Chairman’s comments to City Council were obtained through the Freedom of Information Act and are available as a scanned and converted document here. The Chairman of the Environmental Commission requested that City Council postpone its decision regarding the bonding and approval of the proposed new parking structure until the City properly considered the need for the project, the environmental impact of the project, and the range of less impacting alternatives to the project. It should be noted that the Chairman, Mr. Steve Bean, was speaking in a personal capacity and not on behalf of the City’s Environmental Commission, as the City Council never formally consulted with the Environmental Commission or sought the Environmental Commission’s input on the proposed new parking structure.
Environmental Commission Chairman Bean detailed in writing the potential for the project’s unnecessary and avoidable environmental impacts and raised numerous questions and decision-making criteria that warranted further study. Specifically, Environmental Commission Chairman Bean expressed his concern about “the lack of consideration of environmental impacts (such as greenhouse gas emissions) from increasing parking supply.” He thus requested that City Council “postpone action on the proposed underground parking structure” to allow City Council to get “comprehensive” information on the City’s “parking availability data,” “parking demand management efforts,” and “the presumed need for the structure and possible alternatives before approving its construction.”
The City Council also ignored the City’s own policies and stated goals for reducing vehicle pollution and greenhouse gas emissions and totally failed to consider the vehicle miles and pollution that would be generated by the new parking structure. Using a conservative calculation based on survey data from the Ann Arbor Downtown Parking Study (Phase I Final Report, at page 3-52), the proposed structure will support 494,210 vehicle trips per year resulting in 6,770,677 vehicle miles traveled per year. According to U.S. Environmental Protection Agency estimates for average emissions from vehicles, the pollution from this increase in vehicle miles traveled will be 41,757 pounds of hydrocarbons, 311,690 pounds of carbon monoxide, 20,730 pounds of nitrogen oxides, and 6,201,940 pounds of carbon dioxide (the primary greenhouse gas).
This increase in vehicle pollution and greenhouse gas emissions is totally at odds with the City’s own adopted 2006 resolution to reduce greenhouse gas emissions 20% from 2000 levels by 2015. (See R-172-5-06, Resolution to Set Renewable Energy Goals for Ann Arbor.) The City has acknowledged that meeting this greenhouse gas reduction goal will require reducing vehicle miles traveled in the City. However, Ann Arbor’s State of Our Environment Report shows that total vehicle miles traveled are already increasing even without a massive new parking structure to bring more cars to the City.
Soon after the City Council approved the proposed new parking structure, the Great Lakes Environmental Law Center, Natural Resources Defense Council, Sierra Club, and several local residents (including experts in air pollution, public health, and urban development economics) sent a detailed letter to the City expressing both policy and legal concerns with the City’s decision. (See media coverage from the Ann Arbor Chronicle and the Ann Arbor News.) The Great Lakes Environmental Law Center also submitted several requests pursuant to the Michigan Freedom of Information Act, and that’s when things got really interesting, eventually exposing a troubling pattern of potentially illegal secret email deliberations by some City Council members, and the City’s failure to disclose these email communications as required by state law.
Requesting information pursuant to the Freedom of Information Act (FOIA) is standard procedure in public interest environmental work, as open government is critical to good environmental decision-making. The Great Lakes Environmental Law Center’s first FOIA request to the City, dated March 27, 2009, sought all records relating to the City Council’s approval of the parking structure and relating bonding and financing. The request specifically included “all e-mail communications … made by City Council members … during … City Council’s February 17, 2009 public meeting” (the meeting at which the parking structure and bonding were approved). On April 20, 2009, the City responded to the FOIA request with some documents, but denied access to others and completely failed to acknowledge the existence of many of the City Council members’ emails.
We suspected that there were more emails between City Council members, and made another FOIA request on April 23, 2009 for “all records produced, prepared, or otherwise created by Ann Arbor City Council members during the City Council’s February 17, 2009 meeting.” On April 30, 2009 the City responded by providing some (but still not all) of the City Council members’ emails, which began to show that City Council members were engaging in both substantive and non-substantive private email communications, using City laptops and email accounts, during the open public meeting. Specifically, several City Council members exchanged numerous email messages discussing whether they supported postponement (as requested by the Environmental Commission Chairman) and why other City Council members supported or opposed postponement. After determining through a private email discussion which City Council members opposed postponement and which members supported postponement (and why), and what a vote on the matter would thus likely result in, a motion for postponement was never brought or publicly discussed and voted on by the full City Council in open. The Great Lakes Environmental Law Center has scanned these emails and posted them online to make them publicly available. For a better read, the Ann Arbor Chronicle has detailed coverage of the email discussion, along with a thorough analysis of potential Open Meetings Act violations.
In addition to these substantive emails, our FOIA request also uncovered numerous emails between some City Council members showing unprofessional, disrespectful, and insulting comments regarding other City Council members and constituents. The Ann Arbor News covered these emails in two related articles (here and here) and in a scathing editorial and political cartoon. While the Great Lakes Environmental Law Center is only concerned with the substantive private emails concerning the parking structure, many voters were offended by the other insulting emails and general disrespect for the public and ousted one of the ring-leading incumbent council members in the primary election two weeks ago (see coverage from AnnArbor.com and this Michigan Daily editorial, "Corruption loses").
But that wasn’t the end of the private email scandal. Last month, we learned about numerous other private emails between city council members at the February 17 meeting regarding the parking structure that the Ann Arbor Chronicle obtained through FOIA (available here). These emails showed an even more egregious disregard for the letter and spirit of the Michigan Open Meetings Act, which requires that all deliberations by public bodies be done in the open. In one telling private email, sent from Council Member Leigh Greden to Council Member Margie Teall during the public meeting, Council Member Greden bragged “Isn't it nice when we script things?” We don’t yet know why the City failed to produce these emails to the Great Lakes Environmental Law Center but did produce them to the Ann Arbor Chronicle – just one of the many questions that may be answered in the litigation.
In addition to claims regarding vehicle pollution, greenhouse gas emissions, and violations of the Open Meetings Act and Freedom of Information Act, the complaint also raises claims of nuisance and trespass on behalf of local businesses that will be devastated by the construction of the massive underground parking structure, most notably the famous Herb David Guitar Studio. This Ann Arbor landmark has made, repaired, adjusted and sold instruments and accessories to John Lennon, John Paul Jones, Jerry Garcia, Carole King, Eric Clapton, and many other notable musicians. If construction of the parking structure moves forward as planned, the Herb David Guitar Studio’s historic property could be permanently damaged and the studio could go out of business.
While this project and process have not exactly been a model of rational, informed, and open government decision making so far (to put it mildly), I’m still hopeful that reason and good judgment will prevail and the City will work collaboratively with its residents, businesses, and concerned environmental organizations to move towards a modern, efficient, less costly, and more sustainable transportation system instead of simply building an expensive parking structure that’s not even needed. At a minimum, the City must reconsider its decision in light of the avoidable environmental impacts and public process abuses and ensure that neighboring independent landmark businesses are protected.