Planners to consider parking requirement change

By Grace Lovins

Following a request by the property owner of 479 S. Old Woodward in downtown Birmingham to add his property to the city's parking assessment district (PAD), the Birmingham Planning Board examined changing the current zoning ordinance for D4 properties in the parking assessment district at their meeting on Wednesday, July 27.

A proposed amendment to the zoning ordinance would enable properties zoned as D4 in the downtown overlay zone to request a waiver of the zoning ordinance from the city commission. Currently, the property, located at 479 S. Old Woodward Avenue is the only D4 zoned property in the downtown overlay not included within the city’s PAD. Inclusion in the city parking district would mean a property owner would only have to provide on-site parking for residential uses.

Senior planner Brooks Cowan began the session with a presentation of the proposed amendment to the ordinance, which would ultimately allow the property owner, Doraid Markus, who filed the petition, to offer less on-site parking than what is currently required. However, the language used in the proposal raised concerns with the city's planning division, leading them to not support the amendment as written. Markus has struggled for years with the planning board and city commission over this property and repeated issues with zoning to allow him to access city parking.

Cowan noted that the current language appears to bypass the appeal process of the board of zoning appeals (BZA). Further, it was noted that the parking assessment district has actually timed out – it has been closed since 2009 – so that from a legal standpoint, Cowan said, it is a black-or-white issue and the property cannot be let into the PAD.

“Given the history of the assessment district, the appearance of bypassing the BZA, and the lack of development standards or approval standards, the planning division recommends denial of the ordinance proposal,” Cowan said.

Markus' attorney Stephen Estey presented reasoning behind the proposed amendment, stating that the property has the opportunity to lease the first floor to a furniture store, becoming the property’s anchor tenant. However, with the current parking requirements, the property would be short between 40-50 parking spaces.

Estey and Markus noted that they are not trying to reopen the PAD in order to be included in it, but only trying to establish a way that would allow Markus to lease his property to a retail tenant without having to receive an appeal from the BZA for the parking spaces the property would desperately be lacking. Estey affirmed to the board that, after review from the city commission, an approved appeal from the BZA would be unlikely.

Markus told the board that approval of this amendment would still require the property to gain a special land use permit and site plan and design review from the planning board and city commission. He assured them if either the board or commission has issues regarding parking during that application process, they would still be able to control what Markus is able to do with the property.

Multiple board members expressed concerns over the legal standpoint of the amendment and its relation to the closed PAD.

“I’m curious on an opinion from the city attorney related to the idea of essentially mimicking the benefits of someone in the assessment district for someone who’s not, using the same decks and, [the city attorney’s] opinion on it, whether there is any potential injury to those that are in [the PAD] already,” chairperson Scott Clein stated, echoing prior comments made by Jason Emerine regarding the legal stipulations.

Board members agreed that the proposed amendment is not yet ready for a public hearing, reflecting repeated concerns of the language used in the proposal, but the planning board said it is willing to dedicate the resources and time to conduct a study session for further review on the subject.

Board member Stuart Jeffares noted that the rules previously put in place around parking may not be the best application in the special case of Markus’ property.

“Parking in the number one busiest deck in town [Peabody], I used to look at that report in the back of every city commission report … Pre-COVID, that deck [on Peabody] would get 85-90 percent, Pierce would be a little less, Park was the number two deck, Chester was the least used deck, and now I'd say it’s 75 percent of what it used to be,” Jeffares said. “I think going forward, even if we look at these reports, the big thing is you might have the same amount of office space but the number of people that do go in the office everyday now, in my opinion, has changed forever. So our old rules of thumb probably don’t work.”

Ultimately, the planning board suggested to Estey and Markus that the language of the proposal needs to be revised and that the city attorney, Mary Kucharek, should be involved in the process to avoid any legal consequences of passing the amendment.

A study session for the proposed amendment was scheduled for Wednesday, August 24, where the planning board will discuss the proposal and determine a date for a public hearing.