After a lengthy and often contentious process, at their meeting on Monday, November 13, the Birmingham City Commission approved a definition of personal services for first floor retail space in downtown Birmingham by a vote of 4-3, to close the loophole where landlords have been renting to offices, which has been prevented by ordinance for over 20 years.
The city commission had been seeking a definition of personal services for first floor spaces, which by city ordinance is required to be a form of retail, for the last 18 months, with the issue going back and forth between the commission and the planning board, with planning board members frequently not in agreement with commissioners that a definition was necessary. This summer, commissioners sent them back to fine tune the definition, and to look at personal service definitions in retail communities around the country.
Planning director Jana Ecker said that at their last meeting, the planning board did finalize a list of personal services, with a definition that reads: “An establishment that is open to the general public and engaged primarily in providing services directly to individual consumers, including but not limited to, personal care services, services for the care of apparel and other personal items, but not including business to business services, medical, dental and/or mental health services.”
Commissioner Mark Nickita, noting commissioners were provided with about 20 cities and their personal services definitions, said, “There aren’t any that I can see that say office anywhere. There isn’t anything in any cities anywhere that looks like office or could be mistaken for office. They were pretty consistent.”
“That’s correct,” Ecker said.
Commissioner Carroll DeWeese was concerned that the definition did not go far enough. “I support retail in the downtown – and this ordinance does not preclude office.”
“Let’s be clear – offices aren’t allowed on the first floor. They’re already excluded,” noted commissioner Stuart Sherman. “They problem is businesses are coming in and saying they’re a personal service. We’re trying to figure out what is a personal service that belongs in the first floor of downtown, and what isn’t.”
Commissioner Pierre Boutros became intractable in an apparent effort to protect the interest of building owners, urging fellow commissioners to not make a decision without more consultants and expert testimony. “If something happens to retail, you still have to have flexibility,” he said. “I don’t have consultants, experts to help us make a decision. Do you think by changing the definition that brings in retailers? I think not. I think the focus should be on getting the landlords working with the BSD (Birmingham Shopping District) retail consultant. I think we’re focusing on the wrong thing. I think this is rushing. It needs to be studied.”
“I have to reiterate – office is not permitted on the first floor. But let’s call it like it is – Shift Digital is office. Gas Station TV was office. We have plenty of office, but it’s supposed to be on the second, third and fourth floors,” Nickita said. “Clearly there’s a loophole, and clearly staff has a problem with the interpretation. It was never meant to be on the first floor. No ordinance is perfect, but we address them. This is that today. This gets us much further, and that we can’t put offices in these spaces. Reviewing the redline district (the business and shopping district) is the second phase of this. That’s not this issue. Once you get office, you never get retail, retail doesn’t want office next door. Love it upstairs. I think we have to move on this issue.”
Commissioners voted to approve the personal service definition by a vote of 4-3, with Nickita, Sherman, mayor Andy Harris and mayor pro tem Patty Bordman voting to approve, and Boutros, Carroll and commissioner Rackeline Hoff, who felt the issue was too divisive, voting against.