No rezoning vote on Mountain King property

Birmingham city commissioners took no action on a request to rezone the former Mountain King and adjacent bank property on Monday, March 11, from D-4 to D-5, allowing a building which could be built to the same height as an adjacent one, and a request to have the advisory parking committee review the property to include in the city's parking assessment district was determined to not be relevant to the zoning request, and no action was taken.

The rezoning request by property owner Doraid Markus came about because in 2017, the adjacent properties of Birmingham Place, to the north, and the 555 Building to the south of the proposed property, along with the Merrillwood Building, were included in a new zoning category, D-5, which grandfathered in legal non-conforming mixed use buildings in the downtown overlay district, and permitted buildings higher than 5-stories in height, up to 180 feet, as long as they are compatible with adjacent buildings.

Planning director Jana Ecker said the D-5 zoning “anticipated such uses. The D-4 use is no longer appropriate,” for the small parcel between two larger properties. The proposed property, at 469-479 S. Old Woodward, at .42 acres, fronts on Haynes Street, she said, and goes from S. Old Woodward to “big Woodward.” She noted both sites had been vacant for about 4 to 5 years.

“This zoning creates a more unified zoning. The rezoning is not detrimental because it does not extend the zoning either to the north or the south, and allows for the same zoning as the properties both to the north and the south, and puts it on equal footing,” Ecker said. “It allows it to be developed in harmony with properties both to the north and south.”

She added that given the size of the parcel, and because it is not in the parking assessment district, the developer said he could not develop a 5-story building that would be consistent with the area and the “mass of residential of Birmingham Place next to it.”

This was the first application for a D-5 rezoning request. “The only benefit to a D-5 is the extra height, but you have to go under a SLUP (special land use permit),” Ecker said.

The rezoning request had come before the planning board in 2018; once it was denied, and after two postponements, it was revised, where it was recommended for approval to the city commission by a vote of 4-3.

Commissioners were concerned as to what the actual height could be if it was rezoned – to the total height of Birmingham Place, inclusive of mechanicals, at 114 feet, which is its highest point, or 98.2 feet, which is where its eaves are. Commissioner Mark Nickita emphasized it should be where the eaves are, but that it was a loophole in the ordinance not to specify that.

“That's like including a chimney to a house,” Nickita pointed out. “The interpretation is a little gray. If we leave it D-4, they have an 80-foot building. Then the commission and the planning board have no ability to adjust it. It's very restrictive from our point of view. If we change the zoning to D-5, all of a sudden it's a SLUP and there's a lot more flexibility for the city to articulate the building the way we see fit.”

Rick Rattner, Markus' attorney, concurred. “D-5 will allow a building that is compatible. If 555 or Birmingham Place owned this property, it would likely be zoned D-5.”

Mayor Patty Bordman pointed out the part of the 555 Building that is closest to the parcel is the office part that is 77-and-a-half feet tall, “which is lower than you are allowed.”

Rattner countered they were adjacent to Birmingham Place at 114-feet. “That is the one we are abutting.”

Residents of Birmingham Place have consistently sent emails and letters to the city opposing a change of zoning, and attorneys representing them spoke in opposition to the project at the commission meeting.

Fred Lavery, owner of several car dealerships across Woodward, and considered an adjacent property owner, noted “You are gaining control of this project by rezoning to D-5 and adding a SLUP, not losing control.”

Preliminary drawings presented to the commissions showed a massive 80-foot 5-story building next to Birmingham Place, and a stepped in 114-foot building with air and better perspectives next to Birmingham Place.

Commissioner Rackeline Hoff said she did not see much of a difference, and was concerned about setting a rezoning precedent.

Commissioner Stuart Sherman was concerned that the whole block from Haynes to Brown has different zoning, and felt it should go back to the planning board to be reconsidered. Nickita agreed, as well as having the D-5 loophole closed. Bordman opposed sending it back, and a motion failed, 2-5.

A motion to deny the rezoning from D-4 to D-5 also failed, 3-4, with Hoff, Bordman and commissioner Carroll DeWeese voting to deny. A motion to approve the rezoning failed to receive a second.

Due to a petition from residents, a motion for rezoning had receive 6 of 7 commissioner votes.

After three hours of discussion and motions, the commission took no action, meaning there was no acceptance or denial, and the property remains zoned D-4.