After over two years of requests, reviews, planning board and commission meetings, the Birmingham City Commission denied a proposed rezoning for the former Mountain King and Talmer Bank site on S. Old Woodward, from D4 to D5, which would have allowed for a building of up to nine stories, at its meeting on Monday, July 20.
The .423-acre site spans Hazel Street from S. Old Woodward to Woodward. The site currently contains two vacant single-story commercial buildings, which were formerly Mountain King Chinese Restaurant and Talmer Bank.
In May, the planning board had voted 4-3 to recommend approval of rezoning of the site to the commission, and on June 24, they unanimously approved a preliminary site plan and community impact study for a five-story mixed use building under the existing D4 zoning ordinance.
The sites, at 469 and 479 S. Old Woodward, have been under discussion and review for several years, primarily because the applicant, Doraid Markus, had originally sought to build a nine-story hotel on the property, and then sought to rezone the property from D-4, which permits five-story mixed-use buildings in the city's downtown, to D-5, which was a new zoning district originally created to encompass higher and non-conforming buildings, such as 555 Building, Birmingham Place and Merrillwood Building, and grandfather them, in order to allow renovations and updates to the 555 Building.
At the beginning of the July 20 rezoning request, Markus' attorney Rick Rattner said he was requesting a postponement of the public hearing in order to try to meet with representatives of neighboring building Birmingham Place. Markus and Birmingham Place have had a divisive and rancorous relationship during the attempt to develop the property. Residents of Birmingham Place object to their sight lines and air rights potentially being infringed, and potential construction issues.
“Our goal is to build the best building we can. That may mean the flexibility that D5 can offer – it does not mean to the full D5 height,” Rattner said. “We can go forward with our D4 building, but we want to do the best job we can. We think D4 is a building we can be proud of, but let's look at something else.”
After a lengthy discussion between members of the commission, Patrick Howe, attorney for the board of Birmingham Place, Markus and some residents, it became clear there was no potential for compromise, and a motion to postpone the public hearing failed, 2-4, with commissioners Pierre Boutros, Rackeline Hoff, Mark Nickita and Stuart Sherman voting against. Therese Longe was recused for conflict of interest as her husband Chris Longe is the architect for the project.
“We at Birmingham Place do not think there needs to be a postponement,” Howe said. “I haven't received anything (from the applicant) since the planning board meeting. I haven't received anything that isn't 'You're going to be sorry.' That's not a negotiation. Tonight should be the vote on the rezoning.”
City manager Joe Valentine said a supermajority of six votes – or a unanimous vote of approval, considering Longe's recusal – to approve the rezoning request was required.
City planning director Jana Ecker pointed out that while the D4 zoning is “only five stories there is plenty of room to have very high stories. Birmingham Place has 10 stories” but because it is an older building, its ceiling height is not as high.
With D4, the building height maximum is 80-feet. Birmingham Place is 98.2 feet high; with D5 zoning, the maximum a new building could be is the same height.
Hoff made a motion to deny the rezoning, noting, “My decision is based on three aspects of rezoning: one, rezoning is not necessary for reuse of this property; the existing zoning is still relevant; and D5 zoning was to allow for renovation to three existing non-conforming buildings, not for new buildings.”
Commissioner Brad Host concurred. “All of Birmingham is D4 and that's the way it should be,” he said.
Commissioners voted 5-1 to deny the rezoning request, with commissioner Clinton Baller voting to rezone.