Baldwin House faces lawsuit for parking charges

By Lisa Brody

After receiving numerous complaints from residents and their families of Baldwin House in Birmingham regarding senior residents being charged – and overcharged – for parking in the Chester Street parking structure in violation of a 1994 agreement between the city and Baldwin House, Birmingham City Manager Tom Markus has directed city attorney Mary Kucharek to determine if the senior living facility has breached its contract, and if so, to pursue legal action.

Baldwin House is a senior living facility located at 200 Chester Street, offering independent living, independent living with assistance, respite stays and hospice service. They have one and two-bedroom apartments. When developed in 1990, they had to offer “qualified low income housing” for a certain number of their units, per federal lawsuits.

In his city manager's report included in the city commission packet for Monday, July 25, Markus wrote, “In 1990, the city and Baldwin House entered into an agreement that provided 69 parking spaces free of charge in the Chester structure for the exclusive use of Baldwin House tenants and their guests. Complaints were made that Baldwin House was not only charging residents directly for the use of these City provided parking spaces, but were charging residents almost double ($90) the rate that members of the public pay ($50) for monthly parking permits. In addition, complaints were also made indicating that Baldwin House was allowing employees and contract workers to use the parking spaces for free, which is not what the agreement provided for.”

Markus reported that he and assistant city manager Jana Ecker had met with Tina Marzolf, COO of Baldwin House, and its attorney, Jim Nichols, on July 14, to discuss terms of the agreement between the city and Baldwin House, dated March 26, 1990, in which the city of Birmingham agreed to provide 69 parking spaces free of charge for the exclusive use of Baldwin House tenants and their guests.

The parking agreement is for 30 years from date of occupancy, and was issued in 1994, with its term set to expire in 2024. However, it would expire earlier if “Baldwin House ceases to be a 'qualified low income housing project' as defined in section 42(g) of the Internal Revenue Code of 1988 or otherwise does not qualify under the existing state or federal low-income housing program; or a certain number of units designated for the elderly within Baldwin House are not occupied or available for occupancy by persons over 55 years of age or older.

“The Parking Agreement clearly states that 'Commencing with the date that a certificate of occupancy is issued for the occupancy of the housing project known as Baldwin House, the city shall provide without charge sixty-nine (69) parking spaces in the Chester Street Parking Structure for the exclusive use of Baldwin House tenants and their guests,” Markus reported.

Markus said that during their meeting, Marzolf and Nichols confirmed they have been charging some of their senior residents $90 for a monthly parking pass in the Chester garage – $40 more than the city charges its monthly pass holders – and they are charging both full pay and low income residents that rate, while receiving the passes for free. They admitted they have been charging residents that charge for years, while never notifying the city of that practice, and never reimbursed the parking money to the city. Simultaneously, they used provided employees and contractors with free parking in the structure with the free passes that the city had provided for residents.

Markus said, “The city stated clearly that our position is that the 69 parking spaces included in the 1990 Parking Agreement were to be provided free of charge, for the exclusive use of Baldwin House tenants and their guests only, for the duration of the contract term. Mr. Nichols committed to stop charging monthly parking fees to the four low income qualified residents currently paying for the city parking spaces, but did not commit to cease charging all senior residents for the city parking, nor to stop providing free parking in the Chester structure to Baldwin House employees or independent health care providers. Ms. Marzolf and Mr. Nichols argued that they were charging the tenants the parking fee as a way to distribute the free spaces.”

Markus has directed attorney Mary Kucharek to review the 1990 parking agreement and determine if there has been a breach of contract by Baldwin House, and if so, if legal action is required.

“The city can seek a court order to force the Baldwin House to reimburse all parking fees charged to all Baldwin House residents from 1990 to date,” Markus said if there has been a breach of contract, noting he has requested Kucharek to secure historic, numeric and legal answers as to this issue “and I have directed the city attorney to pursue the necessary legal action to secure compliance with the intent, terms, and conditions of the various agreements related to Baldwin House.”