County error on rezoning fixed by commission

By Grace Lovins

Developers of Westbrown Condominiums at 695 W Brown Street came before the Birmingham commission on Monday, August 29, seeking to rezone an adjacent undeveloped land parcel and obtain a lot split following an error made in 2018 by Oakland County, and commissioners unanimously approved them.

Back in February 2018, LB Land LLC obtained final site plan approval from the Birmingham Planning Board for eight single-family attached residential units, with the stipulation that the open land to the south of the development be used for staging and then to restore landscaping until the owner brought forward a proposed development for the site.

LB Land LLC officials explained they submitted the master deed documentation to Oakland County that fall for taxable IDs for each condominium. However, they said a mistake was made on the part of Oakland County, which led to the creation of an ID for the “balance parcel” – the open lot intended for staging and landscaping. The county made the open space a new lot, separating it from Westbrown Condominiums and creating a lot division at the county level.

The city treasurer then unknowingly approved the new parcel IDs, creating a new lot without city commission approval. After the owner was informed, two choices were given: either follow through with the city’s lot division process or the city would return to Oakland County to request the lot split be reversed and the lot added to the condominium development as one lot. LB Land decided to continue with the city’s lot division process, which requires the R8 zoned land to be rezoned to R2 – single family residential.

However, when the property owner returned to the planning board seeking to rezone the property, the planning board denied a rezoning of the land from R8 to R2 after what they described as a “misinterpretation” of the zoning ordinance. Originally, planners believed the development had maxed out its ability to construct more residential units and was not able to build more units on the open lot. However, the zoning ordinance states that an “R8 zoned property may have multiple buildings that do not contain more than eight residential units rather than only allowing eight residential units on one property.”

On June 22, 2022, LB Land LLC returned to the planning board, which admitted it had misinterpreted the ordinance, and the mistake was corrected, allowing the rezoning request to head to the city commission for approval. At the commission meeting on August 29, senior planner Brooks Cowan noted that the requirements for rezoning – an explanation of why a rezoning is necessary, why the existing classification is no longer appropriate, and why the proposed rezoning would not be detrimental to surrounding properties – were satisfied according to the planning board, and that an R2 zoning of the property would follow the recommendations of the city's master plan.

The commission expressed varied opinions on the issue of rezoning the property, all acknowledging the mistake made by the county had disrupted the typical approval process. Commissioner Andrew Haig said that he felt the error from the county seemed to have backed the commission into a corner, and that they were voting on the least worst option. Haig also questioned if this situation may set a precedent in any way, creating a situation where a property owner or developer could manipulate zoning through a lot division.

Cowan assured the commission that after the mistake was originally caught, the process for obtaining a new taxable ID was improved so that it must be vetted by the building department and planning department before the city treasurer signs off on it in order to ensure all properties have gone through proper city commission approval for lot divisions..

Commissioner Clinton Baller responded to the question raised by Haig, noting that the developer has always had the intention of constructing a building on that lot and it is the commission’s responsibility to decide on the issue at hand: whether the lot is better suited for one single family residential unit or several attached units.

The commission approved both the rezoning of the land parcel and the lot split request, in separate motions, with a 7-0 vote for both items.