Planners revisit parking requirement change

By Grace Lovins

The Birmingham Planning Board revisited a zoning ordinance amendment request during their meeting on Wednesday, August 24, that would enable a D4 zoned property outside of the parking assessment district (PAD) in the downtown overlay zone to request a waiver of the zoning ordinance from the city commission.

Doraid Markus, the property owner of 469-479 S. Old Woodward, petitioned for an amendment to the currency D4 parking standards, which was previously seen by the planning board during their meeting on July 27. Previously, Markus and his attorney, Stephen Estey, informed the board that Markus was seeking an amendment to the ordinance because of an opportunity he has to lease the first floor of retail space to a furniture store, which would become the property’s anchor tenant.

However, with the current parking requirements, the property would be lacking roughly 40 to 50 parking spaces. Typically, a property would then request a variance from the ordinance from the board of zoning appeals (BZA), but Estey noted that after a recent city commission review, it would be unlikely to be granted a variance from the BZA.

Senior planner Brooks Cowan presented the revised ordinance to the board, but noted that there are still concerns among city staff with the language in the proposed amendment. After the last meeting, Estey and Markus proposed making the parking waiver from the city commission contingent on a special land use permit (SLUP), but Cowan notes that a SLUP is meant for specific uses outlined in the zoning ordinance and Markus and Estey are proposing that a SLUP be applied to other uses under the ordinance.

“It is a concern when applicants cannot satisfy the requirements of the zoning ordinance, they go to the board of zoning appeals to request a variance, not the city commission for a waiver. We are concerned about the precedent of allowing a zoning ordinance to be amended where zoning requirements may be waived through a SLUP from city commission instead of obtaining a variance by demonstrating a hardship, as would generally be the case,” Cowan said.

City staff maintain that they do not approve of the ordinance as written by Doraid and Estey, according to Cowan, because of the lack of approval or denial standards for a waiver to be included in the proposed amendment, the appearance of bypassing the process to obtain a variance from the BZA, and that the property, under Article 4 of the ordinance, would not typically be subject to a SLUP.

Estey maintained that the purpose of Markus’ petition and the proposed amendment is to correct a very specific problem of Markus’ property being the only D4 zoned property to not be included in the parking assessment district. He insisted that the board set a public hearing so he, Markus, the planning board and the city commission could provide input and receive input on the amendment from the public. Inclusion in the parking district allows a property to be included in the use of city parking decks rather than provide onsite parking.

Board member Brian Williams stated that he believes the passing of the amendment could essentially open a pandora’s box, but the applicant is entitled to a public hearing.

“My own observation is I think it’s dangerous if we start picking out a particular parcel of property to treat differently, but I think we ought to have a public hearing and hear from the public, hear from the applicant again, and then decide at that time what our recommendation is going to be and I think we shouldn’t get into the details of the recommendation before we have the public hearing and we hear the public.” said Williams.

Cowan and Estey additionally commented on the possibility of the city adjusting parking requirements in a more comprehensive manner that would assess the issue on a broader scale than just Markus’ property. Various other cities around the country have implemented a “payment in lieu” policy that allows businesses or property owners to pay a designated amount to the city to make up for any parking spaces the property lacks based on a zoning ordinance. Board members took an interest in the possibility of a similar policy, but said it would have to be decided along with the city commission.

Chairperson Scott Clein echoed his comments from the previous review of the proposed amendment, saying that he would like to hear an opinion from the city attorney, Mary Kucharek, on the legal implication of giving parking assessment district benefits to a property that is not part of the district

Ultimately, the planning board approved a motion to set a public hearing for Wednesday, September 28, in a 6-0 vote, with board members Stuart Jeffares and Janelle Boyce absent from the meeting and alternate board member Nasseem Ramin recusing herself from discussions stating the property owner is represented by a partner at her law firm.