Commission to allow for parking waiver request

By Grace Lovins

Against the recommendation of city staff, the Birmingham city commission voted to adopt an amendment to the city’s zoning ordinance at their meeting on Monday, December 5, allowing one property in the D4 Downtown Overlay Zone to request a waiver of commercial parking requirements from the city commission.

The property owner of 479 S. Old Woodward, Doraid Markus, requested the amendment and drafted the proposal which would allow his D4 property, which is outside of the former parking assessment district (PAD), to request a waiver for parking under the provision of a special land use permit. Markus has had plans in motion for over two years for a new development on the property but has consistently run into issues with the parking requirements, which had required him to provide a large amount of parking on the property itself.

Birmingham’s planning board reviewed the draft proposal at three separate meetings between July and September of this year, and ultimately voted 4-2 to send the draft to the commission for approval. Brooks Cowan, senior planner, noted that city staff, including city manager Tom Markus and city attorney Mary Kucharek, recommended denial of the proposed amendment for reasons addressed during the three sessions the planning board reviewed the draft proposal.

Cowan explained that city staff is primarily concerned with the language of the ordinance, as was the case during the planning board’s review of the proposal. Additionally, waiving a requirement of the zoning ordinance bypasses the legislative process in place with the board of zoning appeals, eroding the purpose of the zoning ordinance, according to Cowan.

“Writing an ordinance into the zoning ordinance allowing [the commission] to waive an ordinance I think sets a poor precedent on legislative policy in terms of how we set up our governmental process. Typically, if there’s an issue with an ordinance, you address that in a comprehensive manner and say, ‘What’s the root of the issue?’” Cowan said.

“The purpose of the zoning ordinance is to ensure fairness and consistency across the board, and so we’re concerned that if one applicant is allowed to say ‘Well, I can’t meet this. Let me propose an ordinance amendment where I’m allowed to waive this’ then other applicants may come in and feel the same way,” Cowan said.

Not only was city staff uneasy over the lack of approval standards in the amendment for waiving – which typically affects how final site plans and special land use permits are required to meet certain criteria — city attorney Mary Kucharek also wrote in her review that waiving the parking requirements with a special land use permit is inconsistent with what the permit achieves. The property owner is intending to obtain a special land use permit to waive parking requirements, not for the actual use of the property, which is how special land use permits are usually utilized in the city.

Doraid Markus, along with his counsel Stephen Estey of Dykema Gossett, maintained that his property was a special case, and as the only D4 zoned property left out of the parking assessment district, this was his last resort after exhausting all other options. He explained to the commission that he has a national furniture retailer in line to be his anchor tenant of the new development, and the roughly 74 parking spaces he would need for the development aren’t necessary for a furniture store.

In support of the property owner, commissioner Clinton Baller said to the commission that the proposal would be a way for the city to work with Markus on a solution for the property, not guarantee that Markus would be able to accomplish a waiver of over 70 parking spaces.

Commissioner Andrew Haig, backed by city manager Tom Markus, proposed that the property owner return to the commission with a rough plan for the building he is hoping to develop. While other commissioners disagreed, saying that the plan would have to first be seen by the planning board and that it wouldn’t make sense to halt approval of the amendment over preliminary drawings, city manager Markus argued that the property owner, already knowing who his anchor tenant is, most likely already knows exactly what they want to build and how many parking spaces they don’t want to provide.

“He knew what he bought. He knew what the zoning said, and he quotes the other provisions in the ordinance – which I suspect were about fitting an already existing condition without really changing anything or building anything. … That was to accommodate and make something conform that hadn’t been conforming. That’s not the same as using an ordinance to build something from scratch,” city manager Markus said.

Kucharek concurred with the city manager and Haig.

Responding to Haig’s proposal of a rough outline, the property owner talked through the changes he would make to the plan he gave to the planning board, but continued to say he wouldn’t be able provide any estimates until the amendment passes.

Eventually, the commission voted 5-2 to adopt the proposed amendment to the zoning ordinance, with commissioners Haig and Brad Host voting against the motion.