Board of Zoning Appeals - Regular Meeting

Welcome to our regularly scheduled monthly meeting of the Board of Zoning Appeals. The BZA members are volunteers and receive no compensation. They are appointed by the City Commission for staggered three-year terms. Under state statutes, the BZA hears three types of appeals. We hear dimensional or non-use variants, including signed variances. We hear use variances, and we hear appeals of interpretation of rulings. of building officials or other boards regarding any provision of the zoning ordinance. Tonight we have three-dimensional appeals. In a dimensional appeal, the applicant or the appellant must show a practical difficulty complying with the dimensional requirements of the ordinance. It requires four affirmative votes. Tonight we have a full board, so four of seven. And as I mentioned, all three tonight are dimensional. Our procedure is all comments are to be addressed to myself, the chair, please ready to be recognized. City staff will first make a presentation regarding the appeal and take questions from board members. The appellant is then invited to present their case. Only one person may speak on behalf of any appeal. I can't make exceptions if there is an architect or an engineer where we have a specific question regarding the appeal. Members of the public are then invited to come forward, identify themselves, and provide their comments to the board. The hearing is then closed, and motions from the board are entertained and acted upon. In all cases, this is not a popularity contest. Granting or denying a variance is based substantially on the appellant meeting their burden of proof. Can you please call the roll of the board members?

Eric Morganoff?

Here.

Jason Kampiser?

Here.

Brendan Horne? Here. Carl Conner? Here. I'll now call the roll for the appellants.

We have someone here for case 2612 for 34952 Woodward? Yes, sir. Thank you. Do we have someone here for Chesterfield? Yes. Very good. Thank you. And somebody here for 214 West Mabel?

Not sure. We weren't told anything.

Well, it's the last case, so they have maybe an hour, so we'll mark them absent for now. Do we have any correspondence for the board? I didn't see any. No, everything was in the packet. Very good. Gentlemen, before you are the minutes from our last regularly scheduled meeting. Do we have any corrections or a motion before?

I actually have a question. Where did it go? I think it was the first appeal, the pergola. There was a notation about a substantial change. We determined afterwards that that wasn't the standard though. So should we be striking that language? It's under the first appeal on the second, on the top of the page before number two. It was noted that the city and the appellant could work together to determine whether a substantial change would be required. Do we want to strike that language since it was a 3-3 vote both ways, so they have a right to come back regardless?

Yeah, I'm not sure what they're planning on doing. I think they're going to go another route with it.

Yeah, no, I understand that. I'm just wondering if we want that language in the minutes because it's not an accurate standard. No, we can correct it. Okay, so I guess I would move to approve the minutes with that language stricken.

We have a second to approve amended. All in favor? Aye. All opposed? The minutes are approved as amended. Our first appeal tonight is, let me zoom in, case number 2612 and the city is presenting.

Thank you, Mr. Morgan-Roth. I know that I know all of you, but I'm not here often, so I thought maybe for the record and anybody watching at home, my name is Nick Dupuy. I'm the Planning Director for the City of Birmingham. We're only really ever here for commercial appeals, so that's the rarity. I am presenting on this particular variance at 34952 Woodward and 690 East Maple, three variances in particular. Now, I guess my tactic tonight, I thought as though, or I feel as though the variances themselves read to be a little complicated, but in my opinion, the story here isn't complicated. So I figured I'd tell you the story, and in the context of that story, draw out the variance requests, and then of course, field any questions that you may have for me about the zoning ordinance or the project broadly. So this is proposed to be a brand new mixed-use building on what currently is a majority vacant lot with a small two-story office building towards the east. It is two lots and it is, It does exist within two separate zoning districts, the MU5 or mixed use five and MU7 or mixed use seven, both in the triangle overlay district. In the triangle overlay district specifically and only, property owners have access to what we call bonus height. That bonus height in this case for the MU7, the maximum additional height, 24 feet two stories, and the MU5 portion of the site, I guess I should point that out, which is the shorter side over here, it's an additional 12 feet or one story. All that being said, they're trying to cram a lot into this building. It's a big building, but it is a mix of parking, commercial, and residential uses. The commercial and parking uses are a focal point because they are two of the requirements that the applicant has decided to pursue to be able to have access to the bonus height provisions. So you have to meet two of four and those are the two they chose. Paraphrasing a bit, you've got to have a mixed use building with certain numbers of commercial and residential. They meet that, that is not of issue tonight. But you also need to have what they chose to have and provide is public parking or parking available to the public at a rate of one for 300 square feet of additional floor area. So what that has necessitated is, as I mentioned, cramming a lot into a little. So the tact that they chose is to introduce a hidden story here, what feels like a mezzanine, but technically isn't a mezzanine, additional floor in this building. In the MU7, even with the bonus heights, you're allowed nine stories. With that hidden floor, they're proposing 10. In the MU5, with the bonus stories, you're allowed six. They are not pursuing the bonus stories, thus they're only permitted five. They're proposing six. Additionally, because stories often relate to height or floors often relate to height, in the MU7 portion, it should be noted and highlighted that they are within the maximum height requirements on that portion of the site. That's the larger portion here. So that is not of issue tonight either. However, in the smaller portion, the MU5, they do happen to exceed the maximum permitted height of 66 feet by three feet, thus necessitating this three feet variance request. I think that's pretty much it for me. I think there's much more nuance that I'm sure we'll flesh out in conversation, but that's the gist. Three variances to recap. One additional story in the MU7 portion or the larger portion of the site, one additional story in the MU5 or smaller portion of the site, and three feet. above the maximum permitted height in the MU5 portion of the property. Of course, the applicant's here to add all of the hardship type details, but that's the zoning story.

So I guess my first question would be, so the topography of the lot is dropping. It's not a flat site, correct? As I understand it, yes. And so if the lot were flat, would they exceed the height in the shorter section? Would they still need a variance?

It's my understanding that that's likely true. I say it that way because I should mention that the way that we require applicants to measure height in the triangle overlay is average grade. So if it's slanted like this, you... Do the average theoretically here and you'd measure from that, even though there's this gap here. That's a little bit crude, but I'm sure the applicant team will explain it better. But yes, there's a great challenge here on this site. May not look it, but apparently it's significant.

So are you suggesting if they need a three foot variance in height, they would have to have a six foot drop so that it would pan out in the averages?

They'd have to do a considerable drop in that portion of the site, which of course complicates all the floors and levels and everything like that.

So it'd have to be a drop on that parcel to be a benefit to that part of the building? To be by right? I think so. Okay. And then the other section that has an extra floor doesn't need a height variance. It's just number of floors allowed. That's exactly right. Very good. Other questions, Mr. Campbell?

All right. So we have two addresses. We have, I think, three zoning designations, if I saw that correctly. Yeah.

Yeah. There's an underlying and two overlay.

Yep. And I read something about the lots having to be combined. Yes. I guess procedurally... walk me through this. So when a lot, I guess, variance first, lot combination second, or lot combination first, variance second, and then I guess as part of that larger question is when a lot is combined in the city with multiple zoning, does it then just get the predominant zoning, or how does that work? Can you just walk me through that a little bit?

I'll answer the easier question first. When the future lot is combined, it does not do anything to the zoning. The zoning will remain, so it will end up being a split parcel. It's not uncommon here, inconvenient, but not uncommon. To answer your first question, I think that's actually, frankly, a good one. I'm not quite sure how to answer that. except that I think that should you grant any variances tonight, and should they receive a lot combination in the future, that the issues would all be the same for the reasons I mentioned earlier. No zoning changes, no parcel boundary changes, I guess.

that makes sense so could they let's say for the sake of discussion we gave them their variances and they couldn't get a lot combination for some reason or they were denied a lot combination could they still build this without the lots being combined it's my understanding that you cannot build across parcels so that is a critical thing uh that they'll have to accomplish in the future but

I don't have a crystal ball, but those are typically simple.

And maybe you don't combine it until you have the variance, because why would you want to combine it if you couldn't get the variance? So I would say the variance probably comes first.

This is a critical enabler, I would say, for the rest of this project moving forward.

Okay, but fair to say that if variances were granted, again, just for the sake of discussion, it would have to be tied or conditioned upon a lot combination?

In my opinion, I believe that the planning board covered that. In their approvals, they conditioned their site plan approvals on the applicant receiving a lot combination. So I feel as though that's already covered. Okay. And it'd be a little redundant, perhaps. Fair enough. Thank you.

Please, Mr. Reddy. Nick, can you go over the hidden story aspect of it? What exactly does that mean? I understand they need it for the parking. I get that. But is it below grade or is it just a facade that makes it look like just a regular part of the building?

It's more of the latter, and if I may, it may be a lengthy exercise, but I'll go through the floor plans with you all so I can show you exactly the areas we're talking about in terms of the extra story. So this is lower level two. It's a typical subgrade parking level. This is a second subgrade parking level. No funny business here. This is the first level, and this is where you start to see the commercial come into play, lining the Woodward and Maple storefronts. And now you start to see where the mezzanine is. It's in between the first and second floors. I think they'll be able to explain it much better, the architecture of it all, but they've got, forgive me, I forget the term, but just a double high retail space and double high amenity spaces on the first and second floors to do just as you suggested, sir, to kind of hide that floor behind building frontage, units, and double high retail. So then moving up, it disappears once you get to floor number three, excuse me, two, the formal floor number two, and then up, it's all typical. So that's what I mean by hidden. You can kind of tell by the footprint of it, it's tucked away back here behind this double high, retail space. And then if I move to the elevations, perhaps you can kind of see it in a stacked view here how it's hidden. And then you can start to see how that double high retail space plus the units start to hide it. Thank you.

Without that space, it would just have to be all two-story. Or a double high? Yeah, which is... Because the space is there regardless. It's a question of if it's double space or if it's usable space.

Which we could have the conversation, is that a wise use of space? And it's worth mentioning that in a previous development for this site, they did have parking on an upper level and it went straight to the facade. And that's just not... necessarily an ideal condition, they were able to provide it in such a way that it does not interfere with the architecture of the building.

Can you explain to us, and I didn't mean to interrupt the other question, but what's the purpose of, if a building meets a height limitation, what's the purpose of limiting the number of floors?

It's a good question. I think half of it is a little intuitive. So you've got what? you probably start with a max height that you're aiming for, and then you figure 10 to 12 feet per floor, and then you do the math. I can say that along this Woodward corridor in the Triangle District specifically, the zoning strategy for the heights, and especially in this spot where it's so high, nine stories, it's an urban design concept called the degree of enclosure, where the taller you get, the more enclosed you feel to try and slow things down and create a more pedestrian environment. So we started even there, that urban design, degree of enclosure, pick the height, and then the stories followed.

Right, but if you stay within that height, and someone chooses to do nine foot floors versus 10 foot floors, and is left with a potential floor, and you have enough parking to accommodate the number of possible people parking there, What's the issue in terms of the ordinance? What's the purpose of not allowing to cram in lower ceiling heights and jam in more floors in theory?

I'm not sure that I'll have a good answer, so I don't know that I want to attempt one. This ordinance was written 20 years ago and I was graduating high school. I didn't quite understand. You were 33. So I don't wanna make anything up for you. I'm not sure of the answer.

Other questions? Yeah, so the shorter building, the building to the east, that's three feet above where it should be in terms of the zoning envelope. Yes, it's 69 feet where 66 are permitted.

The larger building, though, is three feet below where it needs to be. You'll have to forgive me. That was a typo in the report. I mentioned that it's 111 feet and 10 stories. It's 114, which is right at the max.

Okay, so the larger building is right at its maximum. It doesn't go above. It's just the smaller building that needs that extra three feet to accommodate what they want to do here.

It's my understanding that's where the grade comes in. Okay.

Thank you.

Yes, of course.

Any other questions for the city? I guess one other question. Is this screening on top of the shorter building for mechanicals?

Yes. And is that part of the three feet? You are allowed to extend up to an additional 10 feet above the maximum permitted height for mechanicals and screening type things or elevator overrides.

So those aren't included in the excess three feet?

Correct. Very good. Oh One question is the is the floor height then on the lower level or the lower Building is that measured to the roof deck or is it measured to the top of parapet? For the 69 feet.

Yeah, it's required to be measured to the EVE line to the EVE line And on a parapet does that mean it's at the coping or Parapets are allowed to extend an additional three feet. I believe so. That's kind of another exception maybe not exception is the right word but Yes.

Thank you.

Of course.

I have one more question. The floor lines for, I'll call them two different, for both buildings or for both zoning, the floor lines are contiguous all the way through or do they step? I believe they're contiguous. It's all the way through. Yeah. So part of the difficulty might be to try to maintain that through a site that is actually started out as two different parcels. I'd say absolutely, yeah.

Thank you.

Very good.

Who's speaking on behalf of the appellant? Good evening, board members. My name is John Gaber. I'm the attorney at Williams, Williams, Ratner, and Plunkett, representing the applicant, which is the Beztek Company. Sam Besnos is with us. And we also have Victor Soroki, our architect, with us this evening as well. Could you give us your address, too, for your... Sure. 380 North Old Woodward, Suite 300 in Birmingham. Thank you. Thank you. It's a pleasure to have this opportunity to be in front of you tonight. Last month, we were in front of the planning board. The planning board, as you might know, unanimously approved the preliminary site plan for this particular project. And it was interesting because there was There was quite a bit of discussion about the variances there as well. And after that motion was approved, the planning board, all the members were recommending approval of the variances as well. Obviously, that's nothing they wanted to put in the motion because you have your own standards that you have to abide by. But I just wanted to convey that sentiment from the planning board. So this project, we're certainly proud and excited to present this to you. You've heard quite a bit of detail and had some very good questions and answers. This is a large mixed-use gateway project in the Triangle District. It's got about 203 residential units, which are condo and apartment units, a combination, retail, and there's a planned space for a restaurant as well. It provides 422 parking spaces, including, as was mentioned, 173 parking spaces for public use, which is kind of rare in the nature of this project and in the Triangle District, which, as we all know, is in need of public parking. So as you saw, the project is comprised of the two buildings on the two different parcels. The large building is about 80% of the site area. The small building, about 20% of the site area. And the small building, it hasn't been mentioned yet, but on the top of that, you see where the mechanical is, it's shielded in front. Behind that is a pool deck. And the pool deck is really what necessitates the additional three feet in addition to the slope. Because there is some additional height in the pool deck, you've got patio pavers, you've got drainage facilities, and then a portion of the pool. So that necessitates the variance request of three feet in connection with the way the height of the site is measured. Now, what I'd like to do is to, we explained the need for the mezzanine level because essentially that additional parking needs to constitute an entire floor. Because under the building code, if it's more than I believe 50% of the floor beneath it, it constitutes a separate floor. Which brings us to you tonight for the variance request for that mezzanine level in both buildings in front of us. It should bear repeating that the height is not in question here. We're within the 114 feet of height in the large building. It's just the number of stories as they're counted. And the mezzanine that we were talking about provides an additional 76 parking spaces. So it's a great use of otherwise wasted space that would not be utilized within the building. And it helps both for the project and the needs of the project, as well as providing additional public spaces for parking in that area. So... Essentially, that is the mezzanine level and why it's needed. The three-foot height variance, as was mentioned, it's called the midpoint of the average slope that's used to calculate the height. And the site slopes about five feet from the front to the back. And as was discussed, if we just measured the building from the East Maple frontage at the sidewalk, it would be at approximately 66 feet. It wouldn't need the three foot variance. We wouldn't be in front of you tonight. So it's just the calculation that requires that. So I'd like to go over the variance request in light of the standards in your ordinance, if I may, which you're gonna be looking at. Forgive me if I'm a little bit repetitive because a number of the factual circumstances apply to different criteria. So I'll try to be as brief as possible. The let's start with the the extra parking level The analysis is really the same for both buildings the large building and the small building as to why that's needed So I'll go through the four criteria for that variance first and then follow up for the three foot height variance after that So your first standard in Section 8.01 is talking about special conditions applicable to the property in question, and the zoning ordinance is strictly applied, would it reasonably prevent the property owner from using the property for a permitted purpose? As we all know, the longstanding challenge of the Triangle District is really the ability to develop the property, including this property, which has been vacant for several years, with sufficient parking for residents and customers of the project, as well as potential public parking. City has long recognized this deficit, and the objectives of the Triangle District Plan, as well as the Master Plan, seek to remedy that. And this project is designed to help address that issue. The mixed uses of the residential and the retail restaurant are permitted uses or permitted purposes for the project. But the lack of an ample supply of parking in this area prevents the developer from providing the permitted mixed uses within the permitted maximum story limits due to the need for the additional parking. Strict compliance would require the removal of the mezzanine level or a reduction of parking by 76 spaces and eliminating this would result in a corresponding reduction of residential units and or retail uses and also a corresponding reduction of public parking available. So the result would jeopardize the project and would in any event fail to provide the 173 public parking spaces within the project. Therefore, we believe the lack of sufficient parking of the property within this district presents a special condition that negatively impacts the development of the subject property. Without the variance for this extra parking level, there's not sufficient parking to enable the proposed permitted residential and retail uses of the property that would otherwise be a permitted purpose under your ordinance. So that's the first criteria. The second criteria would be literal enforcement. The chapter will result in unnecessary hardship or practical difficulty. And we believe the literal enforcement of the ordinance would result in the elimination of the mezzanine parking level of the project and thereby reduce the parking for the residents, for customers of the retail, as well as available public parking for the project. And this would actually be contrary to the policies and the plans of the city of Birmingham. So the elimination of a level of parking to comply with the zoning ordinance would create the unnecessary hardship or the practical difficulty for the project by reducing the amount of parking by the 76 spaces and thereby reducing the number of residential units and or retail use allowed that would otherwise be a permitted purpose under the ordinance. The third criteria is the granting of the variance will not be contrary to the spirit and purpose of the ordinance, nor contrary to the public welfare. While the requested variance, we believe, is consistent with the spirit and the purpose of the zoning ordinance. By granting the variance, the project will continue to comply with the height limitations and feet in the large portion of the building, the majority of the project. And the variance will not alter the exterior dimensions of the project. and will help to minimize inefficient surface parking areas in the district in favor of the additional public parking we're providing. As was mentioned before, the building is the same regardless of whether the mezzanine level of parking is in there or isn't in there. As the chair suggested, it could just be wasted space if it's not able to be used for parking. So to the outside observer, there shouldn't appear to be any difference in the building whatsoever because this parking will be concealed. I mean, it's a wonderful use of space if you think about it because you see the front level with the atriums. Essentially in the front there, that's kind of the lobby area for the apartments and the condominiums. And then also the retail and restaurant area is there as well. So by taking this hidden floor and being able to utilize this extra 10 feet in space, we believe we're making very good use of the available space within the project. The fourth criteria is that the granting of the variance will result in substantial justice to the property owner, to neighboring property owners, and to the public in general. Well, the requested variance for this level of parking does result, as I've discussed, in substantial justice to the developer by enabling the project to be constructed with the building height, with the design, and with the density being in compliance with the other requirements of the zoning ordinance. the exterior dimensions won't change. Similarly, the required variance results in substantial justice to other property owners in the area because they won't notice a difference if the mezzanine level is there or is not there. It's totally interior and enclosed within the building, so there won't be any difference to them. And again, such parking spaces will be concealed from public view. So we believe there is substantial justice for the neighboring property owners and then also for the general public because we will have these 76 additional parking spaces in the mezzanine level that will enable us to provide the 173 parking spaces for public use that would otherwise not be there. So those are the reasons, that's our explanation for the four criteria for the mezzanine level parking variance, and we would certainly request your consideration of approving that this evening based on that rationale. The height variance, if I could move to that, as you've seen, the height variance is the three feet in the small portion of the building on the east side. Could we go to the mezzanine floor plan, please? So you see how small that area is, it's really 20% of the building. And the portion of the mezzanine level, it comprises a small portion of that too. So essentially, for this building, the unique sloping condition of the site within the MU5 overlay district portion of the building creates a special condition that unreasonably prevents permitted purpose and the permitted purpose here would be to allow the pool deck on the very top of the building and I guess the alternative would be if we didn't have the pool deck we would have to lose a floor of the building those are permitted purposes under this zoning district that an applicant is allowed to to put in a project so the calculation of the building height is important for this purpose The slope of the existing site, as we've talked about, is five feet different from north to south. That's the relative drop. So if you look at the city requirements, the project height has to be calculated using the average grade plane at the midpoint. which is close to three feet below the ground level at the highest point, the highest point being the East Maple Road frontage, where we don't really exceed these 66 feet of the building. And the front entrance, that's the visible portion of the building as well. Therefore, the smaller portion of the building exceeds the allowable height by the three feet measured from this midpoint of the average grade. Now, the Central Business District and the Triangle District, where this property lies, generally contains relatively flat sites. We believe that when the mixed-use overlay districts were created, the ordinance contemplated flat sites to calculate the height limitations. But this project is located in what's probably the biggest site within the Triangle District, among the largest sites in the Central Business District. So using the midpoint for the average slope penalizes the project given its size. The developer believes that the three foot variance requested is minimal given the size of the site and the scope of this project. given the gradual nature of the slope from front to back of the building and the small MU5 portion of the project to which the variance applies, comprising about 20% of the site. So very few buildings in the Triangle District would be subject to such slope calculations with the midpoint, thereby penalizing our project by not using building height along the East Maple Road frontage of the building where we would comply with the ordinance. And it's pretty interesting because I looked through the ordinance and if we were across Woodward in the downtown overlay district, we wouldn't need that variance. Essentially the calculation in that district looks at the measuring the vertical distance from the average grade of the sidewalk at the frontage line to the highest point on the roof. So if you look at that point at the frontage line, that's our East Maple frontage where we are 66 feet high. So we wouldn't need that variance if we were across Woodward in the downtown overlay district. So that's just kind of a curious fact and a good analogy I think to our building compared to those buildings because there are a lot of similarities between those areas. In the MU5 use district, the residential apartments with the pool amenities, as I mentioned, are permitted purposes. And the only viable location in this project for the pool deck, and we've analyzed this, is on the rooftop of the MU5 portion of the building, where you have sunlight and free flow of air and such. You wouldn't have that if you put it in the courtyard or or elsewhere within the site. That's why it's located there. Given that the pool deck can only be feasibly located in this position of the project, strict compliance with the 66-foot height standard would require the elimination of the entire pool deck, thereby preventing the property from likely offering a pool with a sun deck to its residential occupants. So in meeting the first criteria, we believe it's the slope of the site that's the special condition presented that would deprive the developer of the pool deck, or worse, could be an entire floor if the ordinance was strictly enforced. Now the second criteria, the literal enforcement of the chapter would result in the unnecessary hardship or the practical difficulty. We believe we meet this requirement as well because in this situation, if you had literal enforcement, this would result in the elimination of the pool deck. thereby jeopardizing the ability of the project to successfully market residential units to its targeted demographics and to compete with other high-end residential condominiums and apartments in the area, causing the practical difficulty or the unnecessary hardship. The pool deck adds a little bit of height, as I've mentioned, with some of the facilities that you have to build on that deck. And the developer is already in the process through the preliminary site plan. We've already removed a floor in the MU5 area. We reduced that to reduce our parking waiver that was needed by the planning board. So we've critically evaluated the necessary height for each floor of the project, making height reductions in certain areas where we can. And the project is even lowered in the MU5 section of the building. We lowered that two feet below grade so as to reduce the height of the variance requested. in this variance request. So while the developer is able to reduce some of the building height, it's left with this three foot gap that it can't eliminate without sacrificing necessary floor height spacing for occupancy and for building systems within the project to function appropriately. Therefore, we believe the variance is required to prevent an unnecessary hardship or practical difficulty of the elimination of the pool deck or conceivably a floor of the MU5 building. So that's how we believe the second criteria is satisfied. The third criteria regarding the being consistent with the spirit and purpose of the ordinance and not contrary to the public welfare. We believe we meet this criteria because it is consistent. The slope of the grade of the site is what necessitates the variance request. If the height could be measured from the front of the building on East Maple Road, then the building would be in compliance. The front of the building is the predominantly visible side of the building, which would meet the ordinance requirement if the site had a level grade. Much of the MU5 portion of the project is, as I mentioned, is concealed from public view, including the pool deck. Because if you think about it, if you go back to the rendering, please. If you think about it, if you look at it, essentially it's surrounded by the larger portion of the building. Could you go back to the one you had before? There you go. It's surrounded by the height of the larger portion of the building on the west and kind of the southwest. On the east side along the frontage on Maple Road, there's a four-story building there, so it just naturally steps down to that four-story building and looks consistent. And behind the property, there's a mixture of older commercial type of uses, maybe some mixed use type of uses that we do not believe would be adversely affected by having this height variance granted. And there are no residential single family homes or anything of that nature within at least 100 feet of the project. Therefore the portion of the mu5 building that exceeds the 66 foot in height is either blocked from visibility is Complementary with the road frontage or borders other commercial or mixed-use properties that will not be adversely affected so therefore the public welfare we do not believe will be impacted by the granting of the variance and And the fourth and final criteria for this variance deals with substantial justice to the parties involved. The three-foot variance will result in substantial justice to the developer because, as I mentioned, it's already removed the floor of the MU5 portion of the project. It's reduced the height as much as possible for each and every floor in that portion of the project, and it's even reduced the grade of the project by two feet. so it's unable to reduce the building height any further and the MU5 portion of the project being the minor portion is really complemented and hidden in large part by the 10-story MU7 portion of the project. Therefore, the variance is necessary for the pool deck, which would allow the developer to provide such required amenities for its residential occupants. And with regard to property owners in the area, as mentioned, it's really not visible. So we don't believe that it causes any negative impact to them. As a matter of fact, it'll be fairly not noticeable because you do have the screening of the mechanical units along East Maple. And you've got the large building shielding a lot of it. So the pool deck will... I shouldn't say virtually, but mostly be concealed from view by the surrounding area. So really for these reasons, we would respectfully ask your approval of the variance requests in front of you tonight. We think that the variance requests are minimal given the project of this scope and size. We believe this project provides A perfect gateway for the city of Birmingham in this location that's been looking to redevelop this site for several years. And as mentioned, there is substantial justice to be done without any adverse impact upon the public or the surrounding property owners. And as a matter of fact, the When it comes to the mezzanine level of parking, one of the planning board members mentioned that that is a wonderful use of the empty space in the project, and they'd like to take a look at your zoning ordinance to maybe codify that or consider codifying that within the ordinance to allow that type of use without it being a variance. So for these reasons, we respectfully request your positive vote tonight on these variances, and we're certainly here to answer any questions you may have because we realize that this is not a simple variance request in front of you this evening. Thank you.

Thank you. So quick question for the city, or maybe you can answer. The commitment to the public spots, how does that work? Is that a... Is that a deed? How does the public parking spots, especially if we're considering the variance for the mezzanine level with more spots because those would be eaten up by the public spots if you didn't get the variance, how does that work in terms of the permanent commitment of those as public? How does that?

We can probably both answer it together, but where we've started, understanding we're at preliminary, and some of this is yet to be finalized, but where we started is the planning board indicated that they'd like them to come back at final site plan with some sort of demarcation or signage plan to show them where those 173 will be, and then to follow through upon development. So you'd be able to enter a parking garage like that and see a sign that says public parking or something, as opposed to... reserve for unit 201. So that's where we are now.

I ask because if I were making a motion, I might tie the variance to the commitment to those public spots because it's one of the reasons why you're saying without Without the ability to have the mezzanine in the 70-some spots, I would have to pull from the public commitment. So if we're tying it to that theme, I'd like to potentially tie any variance if we propose one to those spots.

If I may offer, perhaps for your consideration, I might suggest that as you typically do tying a variance to these plans, we'll be doing the same thing because they've got all the... parking plans in here right with all the required parking including the 173 so if you'd be willing to consider it we might be saying the same things just referencing the public piece in maybe the motion as long as it is also purple or in comments on the motion or whatever however you decide to do it but I just want to check

I'm sorry, if I may, just a comment on that. I think something like that's fine. I just want to make sure that we're not inconsistent. Your approval's not inconsistent with that of the planning board so that we get somehow whipsawed back and forth. If it's tied to the plans, I think that's what the planning board's going to look at and that's what we're committed to doing. And that's all we can get approval for.

Yeah, we would tie it to the plans with the understanding that there's a public aspect of parking that is involved in our decision if that's part of our motivation so that we know that that was... one of the reasons why the variance was approved if it's approved.

Right, I think that would be an excellent thing to include in your findings when you put together a motion. Okay, I'm just ready. Thank you.

Counselor, you may not know the answer to this, but... You're talking about a significant lot size here. The three-foot variance, I mean, on a construction site like this, you're going to get, it's going to get regraded out of existence, basically. Can you kind of explain why that's not part of the, when you're doing a construction site like this, why you can't just level the grade and be done with it? How does that play out? Is it the... City has to designate it before any construction begins. That's the part I don't understand.

Well, I think it's probably due to the topo survey that currently exists for the site. And that's what's submitted with the site plan set and such. So that's what triggers the city.

You cannot change the green in the property line. Right. And the problem is with the sidewalk side.

Yes, so Ron, if they change the grade in order to flatten it, it'd be artificially changing the grade, and so it wouldn't count as compensating for the three feet. Okay, I get it.

Because you put retaining walls in and add three feet of dirt, now you have a three-foot structure you have to improve. Okay, I get it, because it seems like a relatively small amount over a lot that size, and I couldn't understand why. I get it, though. Thank you. That's a good question.

I don't know if you can answer this, but I'm trying to look at the consistencies of the floor levels and I don't understand why the mezzanine parking level is a foot taller or 11 feet versus 10 feet for all the other parking levels. And then the floor above that for the apartment units, it's a 12-foot floor height versus 11-foot for all the other units. So between the two, there's two extra feet that aren't consistent with the rest of the building.

Well, I think with regard to the mezzanine level, I think it's 21 feet total. Or pardon me, with that... that space, the front facade, and then the mezzanine and the first floor parking.

Mr. Sirocchi, if you want to answer that question, since you're probably the one that can answer it, I would allow that. Just give us your name and your address, and then you can address that specific question.

Thank you. Victor Sirocchi, Sirocchi Architecture, 430 Northwood Woodward, Birmingham, Michigan. We're obviously the architects for the project with the Bezanosa or Beztek development. So those are good questions and there's good answers for them. I mean, we've really studied this building very, very carefully, foot by foot, inch by inch. The tall first floor is 21 feet floor to floor. And that's because we have structural floors to add in between these parking levels. In these big mixed use buildings, what happens is, All of the underground parking and the first floor is a cast-in-place concrete system, and then we have what is called a transfer deck. at the second floor. The transfer deck is a very thick concrete floor because it's transferring the loads from the upper floors to different column bays and spacing for the parking garage and the first floor. So that's why we have these extra heights in the building. Instead of like what you said, 10 feet on the underground parking, we're needing 21 feet for the two floors instead of saying it's 20 feet. Essentially what we've done is we've got a very tall first floor and we're inserting a floor in it and And that's that's why we call it to sort of the hidden floor. This floor really is totally concealed from view Nobody would see it until you pull into the building and go up the ramp in the garage The Second floor has a taller floor than the 11 floors going up. You noticed it was 12 feet versus 11. is because the second floor is an amenity floor. You see that area in pink where the mouse is right there? That is the amenity areas of the building. And in these urban mixed-use buildings, the amenities are very, very important. You can imagine that. People don't have yards. They have their units. But then these amenity spaces are places they can go and gather. There's the courtyards. There's the rooftop pool. But these amenity areas are where the activities of the building are. the fitness areas, the assembly areas, the gathering spaces, the lounges, for all of the residents to use. And we want to have a 10 foot finish ceiling in those spaces whereas in the, because we just need a little extra height because the volumes are a little bit bigger, whereas in the apartments we have nine foot ceilings, but in this space we want 10 foot. That's why that floor is 12 feet. Did I answer your questions?

So it has nothing to do with the first retail area of trying to get that to be 21 feet. It's just to accommodate the thicker support floor on the parking and then the amenity rooms. That's right. Yeah, that answers my question. Thank you.

I know it's kind of complicated. These buildings do get a little bit complex and there's a lot of nuances. And by the way, it's very important that the floors are all the same across both the MU5 and the MU7. We wouldn't want floors to stagger and have stairs and hallways and ramps and elevators stopping at different levels. It would be way too complex. And it would not be an enjoyable experience.

Thank you for explaining that. Other questions for the appellant? Seeing none, thank you for your presentation. In the audience or online, anyone not specifically affiliated with this appeal that would like to comment on this appeal? Seeing no hand raise or any indication that someone wants to speak on behalf of this appeal, we will close public comment. Board members.

Mr. Chair, I'll give it a try. Please go for it. Mr. Chair, I'd like to make a motion in regards to 34952 Woodward and 690 East Maple, appeal 26-12. I would move to approve A, B, and C of the requested appeal. In this particular case, we have a number of unique factors that relates to this particular property. A number of special conditions. It exists in two categories. mixed-unit areas within the triangle district of Birmingham there are significant requirements with regards to parking that have to be met and I thought in this particular case the architect did a good job of actually accommodating that parking request as well as making it happen in a manner that is not entirely visible to the public I think the The request for the three-foot variance is relatively small in the size of the project with regards to the grade that currently exists and the overall size of the project. I think that's a relatively small variance request. I think with regards to the additional story, Again, this building is, for this particular additional story, is within the height request and it's just a matter of whether they have five stories in the building or six stories and I think that's also relatively minor in the scope of this project. I think the appellant's counselor did a good job of explaining all the various reasons why there are enough unique circumstances here that the motions should be granted. I would tie this motion to the plans submitted to the city and approved by the Planning Commission.

So we have a motion to approve all three variances. Do we have a support? Seeing a support. I've seen two of them. Mr. Lilly. Any discussion?

Yeah, I will support the motion. I just wanted to... to add that the building will not be contrary in any way to health, safety, and welfare, which is one of our concerns, that this design as submitted is totally within and compliant to any building codes, along with what Mr. Reddy has already stated. Tried to state. Pretty complex one.

Any more comment? I will support the motion also. I do believe that the topography the lot as the appellant mentioned from the street the house or the house structure does meet the height limitation requirement and so visually it meets the requirement it does meet it if not taking into consideration the topography the lot which really cannot be adjusted by the appellant without causing other issues. I believe that the additional floors, although we're providing variances for these floors, as they are not impactful on the overall height and the need for height variance, as well as they do add the parking, which is a challenge in the city of Birmingham, and that the appellate has committed to in excess of double the amount of spots they're getting a variance for in this mezzanine to public use. I think those are all reasons that help support my willingness to approve. So I will support the motion. We have a motion to approve. Can we please call the vote for appeal 2612? Ron Reddy? Yes.

Virgin Lilly?

Yes.

Sean Miller?

Yes.

Eric Morvino?

Yes.

Jason Kampiser?

Yes.

Kevin Hart?

Yes. Yes. Congratulations. Thank you very much. Yes. Good luck on the project. It's beautiful. Thank you. Our next case tonight is a case that was in front of us last month. The vote for the particular appeal came back three. So the appellate has the right to come back and attempt with now a board of seven members to get a vote that

Mike Moran here new bomb case 1573 Chesterfield case 26-15 appeal 26-15 the order the property known as 1573 Chesterfield requests the following variances to construct a new home with an attached garage on a corner lot this Variants a chapter 126 article for section four point six one a one of the zoning ordinance requires a corner lot which has its side street in a budding interior residential lot shall be a minimum setback from the side street equal to the minimum front setback from the zoning district in which such building is located this requirement should not reduce the buildable width of the any lot to less than 25 feet Required setback is 83.06 feet. The proposed is 24.83 feet. Therefore, a variance of 58.23 feet is being requested. The applicant is looking to construct a new home with an attached garage on a corner lot which abuts a lot in Bloomfield Township. This lot is the remaining lot of three lots that were separated in 2020. So you see the lot here. Okay. This dash line here represents the buildable envelope per the ordinance. Okay. And the amount of lot coverage that they're allowed. They're allowed 30%, but this amount would allow them the 13.75 or 0.7%. Okay. Here's the proposed side yard is right to here. Okay. So this is their variance right here, the 58.23 feet that they're requesting. because they wish to build to this point right there. This is their rear setback of 30 feet, and their front setback is 34.8. That's the minimum front setback, which creates their building envelope.

So Mike, and I know this was in front of us last month, and I don't remember if I asked this question, If they wanted to build this ranch plan and they wanted to do a similar square footage, do they have additional space in the depth of the building envelope to make the house deeper but not as wide to achieve the same footprint?

Like they're not maxing that out, right? I know they have a pool. The house as it sits is not to the rear maximum depth they can go.

Right, because the pool doesn't impact the setback lines because it's at grade, right? So they can go beyond the rear setback for the pool.

The pool can go in the rear setback, correct.

But technically, they could get a variance, narrow the width of the home, add to the depth of the home, and maybe achieve the same square footage.

probably not the same square footage, but they could definitely have room to move it back. There is a lot of square footage left on the table here.

Okay, very good. Other questions for Mike? Seeing none, who's speaking on behalf of this appeal?

Good evening, everyone. Mark Nassar. I'm here on behalf of Sapphire Luxury Homes and Landscaping. Address is 775 Industrial Core, Bloomfield, Michigan.

Mark, you're an attorney?

I'm an attorney. Very good. Thank you. Consultant, attorney. So thank you. Thank you. For many of you, this is the second time you've heard this, so there's a lot to go through. I think there was a very rich and involved discussion at the first go-round a month ago, and I appreciated it. I got to listen to it. I got to study it a little bit and learn a lot from you all, so I appreciate that insight. If we can pull up. Oh, you already have, Mr. Moran. Thank you. I appreciate that. And so I think a lot of it's been discussed. So I want to go through this just so that everybody can be refreshed and then maybe focus on what was the topic of discussion during the last meeting and then build upon that for everybody's edification here. So if you look at this, this is the subject lot. We're seeking a variance here. If we go to the next slide on it, here's where it really gets interesting. Obviously, we see that boundary line with Bloomfield Township and in Birmingham. I'm not going to make much of that except to show how distinct the properties are and how different they are in terms of where they are, how they lie, the lot split, that took place here in 2020 between the three lots, this being the third, as Mr. Marriott said, and then obviously the one to the east of Chesterfield as well. And so you've got a very unique situation here. I think I heard that word no less than a dozen times in the recording from last month. And if you study it, you look at it and you say, okay, what is appropriate? I think that that's what everybody was focused on. If you look at the language of this ordinance, you can't help yourself and you look at it and you say, what's appropriate? I think there was a lot of focus on square footage. I can tell you that we could do a lot more with square footage on this property. That's not the goal. In fact, I will say it again. The goal is not to maximize square footage on this property. The goal is to act and to be in conformance with, well, not in conformance with, but to be consistent with is the right phrase. What's there? The beauty of what's there, the size, the shape, the different houses that have been built to beautify this corridor, this gateway into the city, and that's what's trying to be achieved here. If it was a square footage game, yeah, we could have and we did pencil out 10 different iterations of this. where each one of them you could achieve more than the square footage that's been proposed here today and was last week. If you go to the next slide here again, this was studied. You look at this and you've got to look at two properties, one in the city, one outside of it, but you got to look at these averages. The ordinance is written the way that it is. We can all sit here and talk about what should and shouldn't apply, but if you look at these setbacks, you look at it and you say, okay, is there something that provides a very unnecessary hardship? I think everyone here agreed on that. I think everybody here said, yeah, I think that there is. You've established that, but now it's about what's the right thing to do for this area, for this corridor of this great city of Birmingham. So if you go to the next one, this is where it gets tricky, right? The average is 83 feet small. It is buildable, but it's unbuildable here. It is buildable. You could build that home. Nobody wants it here. Not the neighbors, not those who are in the city, not those who are outside of it. In fact, I think in the packet that everybody has received, you've seen the letters of support. Last month, there was two neighbors. After the discussion that took place, another neighbor stepped forward and wrote a letter to the city to also say that I believe that this is a better use than this. If we wanted to cram square footage and go up to that 30-foot height, you certainly could. we're at 20 and change under 21 feet. But if you wanted to, you'd have a really upset neighbor or two or three because they'd say, yep, they got to maximize, they got to do something with this lot. The lot's got value. So how do you maximize it? If it was a flip and a, and a turn and move on, that's, that's what could be in front of you. Just a smaller proposal, but to keep it consistent, to keep it congruent with everything else that's here, you can't really do it on this lot. Practically speaking, I don't think anybody would like that. Okay. And so it is 13.7 lot coverage. We talked about that permitted to 30 trying to get there. Even if you exclude on the next slide, thank you. If you exclude the next one, you get to 21%. And so this is a perfect slide. This is another uniqueness of this. of this parcel where you've got this exacerbated issue with the jog in the road in the right of way and that extra 33 or 27 feet goes from 33 feet in the right of way to 60 feet in the right of way. And I think we've done ourself a little bit of a disservice by showing it like this because if you look at an aerial of this, I even have it. I was looking at it again today like it doesn't show. Yes, there's a slight curve to Court and to Big Beaver in this area, not significant. It doesn't show you 27 feet being a distinct difference here. That really does affect things quite significantly as you go through it. All right, let's continue to come through it. Achieving consistency is what we're trying to achieve and here you've got that 70 foot, that 56% of your frontage is what could be done. But if you go to the next slide, what we're trying to show here is here's what we're trying to do. We're trying to say let's go to 24 and change almost 25 feet proposing to get to 30% in a uniform systematic kind of way. consistent appearance with all the other homes on Chesterfield and it's probably not even worth saying, but I'll say it quickly. If not for that Bloomfield lot, the way that it was, or if that was a commercial property, or if it was facing the other direction, we wouldn't even be in front of you with this plan, right? It simply is because of the way that it is fronting to core in. And so I still think that that only provides you, and the only reason I say it to you is because it gives you context. of what we're trying to achieve here. I think the job is hard on you gentlemen because you can't look at it in a vacuum. You can't look at it and say, oh, well, nope, I got to look at it just at this person. You've got to look at it in the totality of the circumstances and what's actually being presented to you in full. All right. So most continuity, most consistent. If you look at the frontages to Chesterfield, I don't want to talk about square footage. I want to talk about the frontage. And if you look at the frontages of all of these properties, ours is at 66 and change. If you look at the one directly south, it's at 72. The one south of that at 1525, you're at 67 and a half. So in terms of frontage appearance on Chesterfield as you're driving up and down this beautiful street, you're going to see exact consistency within a few percent here or there, ours being the lowest of the three. And then obviously across the street, there is a larger home, yes, because they had to deal with the lot as it was and it is far more narrow, but it still gives you that type of consistency with the frontages as they are. Imagine something that's 25 feet or 28 feet or 32 feet wide stacked to 30 feet in a neighborhood like this. Everybody's going to say, well, that doesn't mean what you want here. That doesn't mean what you want with the enforcement of the zoning and the Board of Zoning Appeals and those four criteria that we'll get into in just a moment. All right. Next slide. And then there was a really good discussion at the last. Oh, can you go back one slide for me? Thank you, sir. About how this would protrude further out. This lot would protrude further out than the lot across the street. So we wanted to provide this illustration to show you that it wouldn't. We're talking about less than three feet further. And so if you drew it on the axis, if you drew a line right on the axis and you got your X and your Y and you say, okay, that lot across the street, where does it end and where does this one end and how far further would it again without that, that jog without that right away, it's, it's exacerbating it so much because you're not looking at it in three. I wasn't looking at it in 3d when I first looked at it, but when you do, you actually will take the eastern, I'm sorry, the northernmost driveway because there's two driveways across the street. Those driveways will line up with what we're proposing here. So the lot across the street in Chesterfield and this lot, the driveways to the north will line up and so do the homes. And so if you're driving down the street, if you're walking down the walkable city of Birmingham, you're going to see them and you're going to see that they are very consistent in how they are. And so are the two homes directly to the south. And so I think that was illustrated there. And on the next slide, it's just blown up a little bit, but just to show you that yes, it is a tiny bit, but it is very consistent. very consistent with what's there on Chesterfield. It simply is that you're driving west to east and you see it there. There's a few renderings that we showed at the last meeting. I'm happy to answer questions about it, but I do also will point out, if you go down a couple more, those three letters of support that we received from the three neighbors that I just talked to you about, they're there, they're there in full. I have copies of them if you want them, but I think they're in the packet that you all have. Then the variance itself, I heard a lot about what's the right thing to do with these properties and what's the right way of doing it. I want to reiterate one last time that it was considered to go two stories instead of one. I think there's a lack, although my opinion doesn't really matter, a lack of ranches in this style where people are just maximizing square footage. This is a beautiful idea for a beautiful lot in a beautiful city. That's what's been presented here. And then if you look at the criterion, the special conditions applicable to the property, will it unreasonably prevent the property owner from using the property as permitted? I think everybody agreed that that's met. And then it was, will it result in unnecessary hardship, literal enforcement? And I think everybody agreed on that. And then is it not, Will the granting of the variance not be contrary to the spirit and purpose of the zoning ordinance and not contrary to public health, safety and welfare? That's what I was trying to focus my discussion with you all today or my presentation. I really do believe that if we look at it, try to avoid looking at it in a vacuum, look at the totality of the circumstances here and look at the uniqueness of where it is. I don't believe there's another lot in the city. In fact, we tried to find another lot like this in the city, we couldn't. And you look at it and you say, well, what's been done since 2020 in this corridor and what's consistent with that? And is it not contrary to the spirit and the purpose to match that neighborhood? Yes, there are neighborhoods in this great city with 20 and 25 and 28 foot frontages on houses. It doesn't belong here. It certainly doesn't belong in this kind of neighborhood the way that it was built in the way that these homes were built. Then will it result in substantial justice to the property owner? We would respectfully submit that it does, but also to the owners of the properties in the area. And that's why I think the support from these neighbors is so critical here because they've said, yeah, that would beautify the area and it would be very consistent with what we've done in this area. And then also to the general public as well. So I'm happy to answer any questions or clarify anything. I know that you guys looked at this in detail, so I breezed through that. So I'm happy to slow it down and provide any further clarification that I possibly can. Thank you for your time.

So thank you for your presentation. That was very well done. And I agree with... many of your comments, especially that the lot, from my perspective, deserves a variance, needs a variance. The building envelope there is not appropriate or proportional to what can be done on the land for the continuity to the neighboring properties and even for consistency to the width of the lot. My challenge is, and what I was hoping was going to come in front of us as an opportunity to come back, was a home that took into consideration the adjacent property, even if you wanted to knock out the Bloomfield lot, which I don't believe you can, but at least one that if you took some kind of average, whether it's the average of one house next to you or the average of both houses, that you would not be the approximate three feet wider or whatever that dimension is. And although you use... terms that imply that they are equal while acknowledging that it's off by at least three feet when you're getting a variance of 50 feet and I'm generalizing on the exact number three feet is significant because it's not three feet it's 53 feet or whatever the number is and the city can correct me so I feel like my hope was with an opportunity because of a of a tied boat the ability to come back and say we heard you we took off three or four feet we're even with the house next door we are not leaving with the adjacent home but here's the reasons why and that didn't happen and I'm disappointed for that purpose and I I do feel as if many of your comments are valid about consistency. And again, every homeowner, whether this is a home that the builder is building for a model, which that's acknowledged in your packet, or has an end user, has a right to build whatever they want to build, whether it be a ranch or colonial. Clearly, if you stacked a second floor on this home and doubled the square footage, which would be inexpensive relative to the main structure that you're currently building, you could add significant value. So this is not about maximizing value. It's a model. You're trying to display... where the market's leaning, and the market's leaning towards these more modern ranches, and I think it will be a beautiful representation of what you're trying to accomplish. My issue is, is that there is no, you clearly need a variance, clearly the envelope that's allowed is inconsistent with what should be built on the property. And as you heard us, and you've commented, it's what is appropriate. To me, what's appropriate is at least acknowledging the same requirements that every other homeowner must fall within, which is a minimum setback, the ordinance the way it's written, or the average. I don't believe your architect has done any of that. I think it's how wide can I go. It doesn't really matter what either property is doing. I think they're unique, so I shouldn't have to follow those rules. My width is a random width. not a consideration that I'm asking for an envelope that's triple the width of the envelope I actually have. And so with all the other people that have come in front of us for the many decades asking for variances, when we say you have a blank sheet of paper, draw what meets the ordinance, or if you're trying to ask for a variance, draw something that respects the ordinance while trying to achieve something that is reasonable and takes into consideration the portions of the ordinance that can be taken into consideration. I don't believe you going beyond the adjacent home does that.

I truly appreciate that feedback, Mr. Morgan. I will tell you that when we went back after and looked at this, the fear was that if we went two or three feet, it wouldn't be substantial enough of a change. And that would be something that somebody would say because it really is that close on that line. But three feet on that size lot may seem...

unimportant people come in for three-foot variances all the time the challenges are coming in for 50 and 53 is three more and so I find that to be a challenge now the insufficient piece which ties into another comment which is if you had been turned down for the variance and and wanted to come back and said, we've changed the house, we still need a variance, would you consider it? If you'd only reduced it by three feet, we would likely say that is insignificant. We would want somebody to see something that's dramatic for a new variance, but in the case of coming back hearing, but coming back with the same plan and the same position, it doesn't change my vote personally, but I respect that you have the opportunity to come back and we have a different board makeup and a different number of board members. We'll see how it all votes out.

Thank you again for the feedback. And I will tell you that we haven't maximized in terms of pulling it up. We did. We did go down south as far as we could. We could have stretched a little bit further if we wanted to to get to a side setback that's more consistent with the houses that are directly south of us. We did not do that.

We're not measuring off the one side. You can pick any criteria. You can pick Bloomfield Hills as your basis, which you don't want to do for whatever their ordinances are. But I hear what you're saying. You can ask for anything. The question is what's reasonable and if it's taken into consideration the ordinance and the difficulties of the property, I think that's a reasonable request. If it isn't taken into consideration the existing ordinances and everybody else that has to abide by them, like the people that built on the adjacent lots, then is it reasonable?

And that's why what we were trying to accomplish was a similar percentage of frontage. And that's why I was emphasizing that. Can we go back like four or five slides? The one that's got that line on it. That one right there. And that really is what we were trying to achieve with that consistency and that congruency with these slots. If you look at it, they're all right there between 60-something percent and 72% for the lot that's directly south of us. We were trying to match and be consistent with that frontage, and it actually fell a little bit smaller in terms of frontage for your envelope on the building as to the ones there.

But even in a vacuum, you're on a corner lot, you're going to have a smaller envelope percentage-wise than an internal lot, and that's not taken into consideration in your proposals.

That's right. The frontage, though, wouldn't be.

The frontage would.

I hear you.

Yes, sir. Thank you for that. Other questions? Mr. Kempiser. Mr. Moore, remind me. I think I know the answer. I just want to make sure I'm remembering correctly. If this was not a corner lot, this proposal meets all the side yard setbacks and everything else, correct? It's just the fact that we're on a corner lot that creates this issue? Yes. Okay.

Please, Mr. Kempiser.

Yeah, is it possible to pull up the Google view of This lot particular That's right there perfect so my concern when you first proposed this was all the houses along Big Beaver all follow a consistent setback and although you know, the center line of Big Beaver seems consistent the way it's, I guess, plotted out. You have a different setback, but regardless, There's the discussion of the house in Bloomfield Township next to it, and regardless of that, just looking at the ones on Big Beaver, on Quarton Road, all those are consistent. And the problem I had was, as the chairman said, yes, you need a variance to build a lot to utilize this, build a house on this lot to utilize the space you have. not all lots are gonna be buildable to the maximum extent that you want. And I looked at this and I just did rough calculations and I wanna ask, why you're asking for 58 feet and if it got reduced by 10 or 15 feet you'd be inside of that envelope you would have more than 9,000 square feet of buildable space your buildable space could fit my whole property inside of it Separate two-car garage, you know my whole house and property it it's inside of your buildable space so You've got a blank sheet. I'm having a hard time going even three feet beyond what should be the line of demarcation for building outside of that line. Why do you need more when you are starting from scratch? That's my question.

Certainly, and I appreciate the question. What it does is it shows that if you start over, and I'm going to take my lawyer hat off for a second. I happen to be a very proud civil engineer by education. If you take your lawyer hat off and you put your civil engineering hat on, you say, yeah, it's pretty simple until you talk to an engineer and you talk to an architect and you realize what goes into a three or four or five or six foot project. variants on a ranch style home in building to the characteristics of what's here. Could it be done? Of course, but you'd start from scratch even for four or five feet. I would not be standing in front of you today if you said, hey, three feet gets it done or five feet gets it done. That would require engineering to go back and redesign this thing and change dimensions. and move things in different areas of a ranch-style home. I'm not saying that this is a small home by any means. I'm sorry, I'm not challenging that statement at all. It certainly is not. What I'm saying is if you look at that, and I'm glad that you pulled it up, Mr. Cohn, or asked for it, because if you do look at them, even the ones that are further east, They jog just a tiny bit so that the one on Chesterfield itself is actually a little bit further set back than the ones that are further east. You do get a very consistent building envelope off of Corton so that the side of this home will be right in line with everything else that you observe as you enter the great city of Birmingham. It will be. You will see no difference there.

No, that's my question is... All of these houses you saying there's a variance. Yeah, the the one right across the street seems to protrude the furthest out of all of them and you want to protrude even further out I'm having a hard time Giving you such a large variance when a smaller variance is already discussed would accommodate a very buildable lot you said you've had ten iterations of buildings to put in this particular property and All the neighbors have whatever the footage is, and then they build behind to expand that square footage. Not every lot is gonna be able to, there's lots right by the waterfall down here that are on a flood plain. They can't use their whole lot. That's what they're dealt with. You're dealt with a different size lot with different requirements, and why do you need

Beyond what the whole intent of the ordinance is is to make consistency along the road and you want to be inconsistent and go beyond that That's my question and I would just offer a different perspective and again not to challenge it But to say that I don't believe that it isn't consistent I think this is consistent with what's there and what's shown and what would be expected on that lot for this neighborhood in this use that and and again, that's that's That's the That's the belief because of what's there, because of what's been built there in the last five or six years and how consistent it is with your frontage of the property, with your frontage of the homes on the properties, and especially the three with this original lot split back in 2020.

Thank you. Thanks, Mr. Chairman. Yes, Mr. Nassar. I'm so glad that you guys pulled this aerial photograph up because the city of Birmingham, we typically put our sidewalks like one foot out from the property line. And if you notice the sidewalk running east to west on Cordon across Chesterfield, that is like 12 13 feet from the property line and the proposed configuration of this house lines up directly across the street with the house the newer house that's on the east side runs directly across the street into the it to me it's like it's begging for the placement of that structure to go where it is because whether the perception of what we're concerned about is the spirit of the law part of the part of what we're trying to meet here is the sidewalk whoever put the sidewalk in thought that it that this is the way it was going to go this is the fabric of this neighborhood the urban fabric is one foot south of that sidewalk, not 15 or 20 feet. I'm not sure what that dimension is.

I do. Yeah.

I'm just, I'm just glad this came up. Well, you know, the previous, the previous speakers spoke significantly long time before I found it. In fact, I'm not even sure that there was a question on a couple of them. So I do have a question. I'm, I'm, I have, um, I guess I should fashion it more as another statement. I appreciate the fact that when I've gone to other townships for zoning boards of appeals, when there's a property that is adjacent to the city of Birmingham, for instance, it's very... They could care less with the neighboring property, whether they're Birmingham. All they want to know if in Bloomfield Village or in Bloomfield Township is that it affects only Bloomfield Township people. This is also taking a tremendous consideration with that property to the west, not crowding the western property line and trying to build this house within the context of the neighborhood I think is very important. And I guess my question is that Did you ever consider even going, I know we talked earlier about you going further west, but even cutting it back to 10 feet, it's still going to look like there's a vacant lot. Did you feel like there was also a void, even if we did make a 10 or 12 foot Yeah, variants out of this. I mean, there's still a huge void in my mind.

Thank you, Mr. Ari. I probably wasn't eloquent enough. So let me try again because I was trying to drive home that point exactly. If you run an access line and you run it from across excuse me you run it from the east side of chesterfield to the to the west side of chesterfield and you take that um driveway and you draw that line that's where they will end and so if you're walking up and down this this street within the city you're going to see that consistency you're going to see it so that it doesn't cut right into the middle of half of this home across the street now it's a very wide home but still that it won't be Our driveway won't be going right out to their front door. Nobody wants that. That's not what would happen here exactly. That's an exaggeration, guys. But the point is where you've got consistency with driveways and you've got consistency with your building envelopes ending to that northern side of the homes. That's exactly what you want to achieve for consistency. That's exactly what the spirit is. to look at it and say okay yeah again try not to do it in a vacuum where we say oh yeah well you you asked for 55 and you could ask for 50 again acknowledging and i'm not trying to challenge it that yes it could be done at 50 but again would be more inconsistent with what's there than how it is drawn now and how it is shown now any other questions for the opponent and then thank you thank you thank you

in the audience or online, anyone that has any questions or comments to our board about this particular appeal that's not affiliated with this particular appeal. Seeing no public comment, we'll close public comment. Board members.

Mr. Kornilson. Yes, I'd like to make a motion regarding 1573 Chesterfield, appeal 2615. I would like to make a motion to deny this variance. I, as stated, do not believe the excessive amount of this variance is required. The conditions of this property would result in a hardship having to meet the actual requirements for the setback but the amount of those required variants or the requested variance is more than needed and is outside the spirit of the Ordinance which is basically looking for consistency and this would be the opposite of that and beyond push this envelope beyond the consistency of the other properties along court and Road as well as further out from the neighboring property in the Bloomfield Township a lot the granting of this variance is not in the spirit of the ordinance and I don't think by providing this and allowing a property to be built or building to be built outside of the consistency of what the variance is intending is going to be Substantially justice to other people applying for similar variances. So for those reasons I wish to go to Deny this appeal.

We have a motion to deny. Do we have a second? I'll second mr. Chair.

Very good any comments Yeah, I can't support the motion because in my mind I believe that the Proposed massing is really right where it should be. So I Again, I cannot support the motion Very good. Any other comments? Mr. Kamuser, sir.

Yeah, I didn't support this motion last time, and I'm not going to support it this time. I mean, and I don't want to rehash all the same arguments we made last time, but I will say I've driven up cordon probably 20 times in the last two weeks, you know, in this area specifically. And first of all, you can't see half the houses from the street. Number one. Number two, I looked very closely and I don't see, you know, this perfect row of houses at the exact same, you know, distance from the street. I think we've heard from the applicant a whole lot more detail this time that this will be consistent with the line of houses, which I believe is really an inconsistent line when you're visually driving up and down that road. So I don't believe that, you know... where this house is being placed is going to change that visual, I guess, field or however you want to refer to it. Plus, for the same reasons, you've got the right-of-way, you've got the difference right-of-way, and you've got this unique house across the street. So, again, I did support it last time. I'm not going to support it this time.

Any other? Seeing none, I'll support the motion. This home that's being proposed is over 82 feet wide. I'm not suggesting whether or not a vote would be positive for a version of this home that would be three feet less wide and looking at the dimensions of different spaces, the house could could be adjusted without any significant change to the layout but I I do believe that in a vacuum I have to consider every appellant that's come in front of us the requirements they've had for corner lots the requirements they've had for average setbacks of adjacent homes The lot deserves a variance and the variance likely is at minimum double the envelope that's allowed the question is where is the threshold? Right now the vote is to the vote if this is not this vote doesn't Move forward is a random with that was created by the appellant without any consideration of the ordinances whether three feet is significant whether or not I would consider three feet that appeared to line up with the adjacent home there's got to be some minimum that's consistent with the intent and spirit of the ordinance which is the average of the adjacent homes and that is not being considered here. And so I definitely think a generous variance is appropriate. I think that we're not far off from what that is, but I think allowing the appellant to draw home based on a perfect scenario without any consideration of adjacent homes would be the opposite of the intent of the ordinance and the spirit of the ordinance and considering that it's a corner lot. So for that reason, I'll support the motion. It doesn't look like we have any more comments from the board members. We have a motion to deny for appeal number 2615 for 1573 Chesterfield. Can we please call the roll? Or could we call the vote?

Carl Pona?

Yes.

Ron Reddy?

Yes.

Jason Kamiser?

No.

Evan Hart?

No.

Richard Lilly? No. John Miller? No. Eric Ornamel?

Yes. So that motion fails. Mr. Miller, I saw you had a motion. Would you like to make it? Yes, please.

The opposite of the previous motion. For 1573 Chesterfield, because of special conditions applicable to the property in question, provisions of zoning ordinance, I believe if strictly applied, unreasonably prevent the property owner from using the property for the permitted purpose, and this is to the very unusual and unique situation of this lot in an absolutely astonishing 83-foot side yard setback. Literal enforcement would result in unnecessary hardship because as the ordinance stands, it really provides an unfeasible building envelope for a home on this site. Where am I granting of the variance it certainly would not be I don't believe contrary to the spirit or purpose of the ordinance and in no way a problem in terms of public health safety or welfare and I believe that granting of the ordinance would do substantial justice to the property owner and owners in the area and because it will provide a reasonable buildable area on this site to build the proposed home, and I would tie an approval to the plans as submitted. We have a motion to approve.

Do we have a second? Second. Any comments needed?

Mr. Hurd. Yes, Mr. Chairman, I'm going to support that motion as well. I think we have a really unique circumstance here that borders on the absolute northwest corner of the city, and it probably doesn't occur anywhere else in the city. As Mr. Miller mentioned, there are special conditions within the site and the the hardship Trying to fit that into a conforming structure is very challenging And it is not I think we talked about substantial justice, especially for the neighboring properties having this developed properly is going to help to retain their value and it will provide substantial justice to both the owner and to the neighboring property. So that's why I'll be supporting the motion. Very good. We have a motion to approve.

Can we please call the roll?

Yes.

Yes.

Yes.

No.

Yes.

No.

No.

I'm ready. No. Congratulations. You have your variance. Glad you had an opportunity to come back with a tie. Good night. It'll be a beautiful home. Our last and final case tonight. Are you here for? I'm here. Very good. It is for case number 2616 for 214 West Maple.

We couldn't have brought you three more different variances tonight. Perhaps the most interesting for last in a way because it is quite simply a sign and the variance itself again for 214 West Maple case 2616 is that chapter 86, which is the sign ordinance of the Birmingham code of ordinances requires wall signs to be placed in a very specific area called the sign band, which is the area between the first floor windows and in this case the roof line for a one story building. This particular sign proposal is below that here, two feet three inches below that, thus they're requesting a variance of two feet three inches. In my staff notes, I mentioned a bunch of stuff. I want to highlight one that we are considering this to be a wall sign. You may have in your experience or for in preparing for this notice that there's all sorts of different sign types that we allow in the city. This in particular is a wall sign. I think that's very clear. I also made the case before that although its placement on the window might suggest that it's a window sign, it actually can't be a window sign because window signs are required to be installed in the interior of the window. So it is not a window sign. I did mention the sign ban rules for you. I would consider all else to be equal here. The combined sign area factors here are not equal. The area of this sign in particular is not an issue. The dimension from grade is not an issue. The projection is not an issue. Simply the placement beyond the sign band. In your packet, They were pretty open about their previously approved sign here, which is kind of hard to see on the projector, so forgive me. It hung down from the ceiling in that little inset, and it was considered a projecting sign. So that meant all the requirements of projecting signs. In their pivot, which I understand is a design pivot that they can maybe explain a little bit more, This is what they've chosen. I think that's it for me. Mr. Morgenroth, I'll kick it back to you for any questions.

I'll start out with, I went to the grand opening. It's a beautiful new store. I think my wife bought something. I noticed they also have the, what's the other sign that's perpendicular from the building? That's there too, correct? It's a projecting or blade sign to the east. That's like a pedestrian sign somewhat.

Yeah, and that's all well and good. That's all permitted.

So I have a couple questions. So I noticed, because I was trying to figure out what the variance was. It wasn't clear when I went up to the sign that we have. I think if you go to the sign, it only sends you to our website. I asked inside and I don't think anyone else knew. The adjacent sign band is much shorter than the sign band here. Does that matter how... Do you have to be consistent with the placement if there was a sign band on the adjacent? Because I think the adjacent building, the sign band, let's say is four feet tall. This might be six feet tall. Does that dictate where the sign band is? Is it relevant?

May I ask a clarification question? Are you talking about the placement of the sign within the sign band? Yes. There are no regulations for that. The band could be tall around different buildings. You could put it to be extreme here. You could put the sign all the way at this top here as long as it doesn't extend beyond the roof line. So as long as it's in that area between first floor windows and roof line, you're good.

Okay, so that was my second.

My third question is, do you have to have a sign in the sign ban? No, not necessarily. It's just that if you're proposing, in this case, a wall sign, it must be.

Right, so they could not have a sign in the sign ban at all, which is kind of what they're choosing, and they're choosing another kind of sign that isn't allowed, but it isn't that that sign has to move to the sign ban. It's just they're not allowed to have the sign that they're currently proposing. Is that fair?

Let's do another scenario here. If they were to take that sign and put it in the sign band, we would not be here. Just to be clear. It's simply where it's placed. To answer your question, I think your first question, there's a... tens of different signs that they could do, case in point, their blade sign. They also have opportunities for window signage or, of course, anything up in that sign band. So there's a number of ways they could have approached it. This was just their choice.

Or if they took the sign that's there now and redesigned it to be an interior sign, they could have the size, the color, and the location without a variance.

Exactly and I think being a little bit frank here That's literally what they have now if you if you went you saw a sign hanging in that same area It's kind of as a kind of stopgap between this approval or request So it's considered temporary in their mind, but so I can help you paint a picture that type of sign would be permitted I think that's what you were so they don't need a variance to have that sign there They just need to apply in a different manner

Okay, very good. Mr. Kempiser. I saw something in the applicant's correspondence that said that the, it looks like there was a historic district commission review and there was a comment about this not being feasible in a sign ban. Is there an issue where there just can't be a sign ban in that area?

So I guess I would respectfully say I think they erred a little bit in clipping that particular section of the code. That particular section of the sign ordinance is should there be Should no sign ban be architecturally available? Now that's kind of a amorphous term. And I guess I'm arguing that there's very clearly sign ban available here. If there's not, you can put a sign somewhere else and make it vertically oriented. So there's no historic reason why they couldn't have a sign ban? Oh, and thank you for asking that. And I'll answer it in this way. historic district commission did review this and did approve it with the condition that they visit you all to petition for this variance there is no historic issues with the placement or design of this sign does not affect the historic character of downtown none of those standards are at issue it's quite simply just the sign ordinance thank you yep mr connor so

They don't need this sign based on what you're telling me. They already have a projecting sign out there and they don't need this particular sign. They just want to add another sign and where they're placing it requires the variance because it's on the outside of the glass.

I suppose that's, if I may say, that's not really my place to answer in terms of need. I'm suggesting that there are other ways that they can use their combined sign area that isn't this.

So, I think you mentioned this before, the allowed square footage of, since it's only initials, they're not using a lot of it, they're not exceeding that at all by adding the two of them together? Not even close. I didn't think so. Okay. So, there's no requirement for the sign, they just want to add the sign and it's because it's on the outside is what's driving the variance? Yes. Thank you.

You walk up and down Maple and there's signage that says barbershop, bakehouse. The windows are covered with signage. Is that because all of that signage was applied? They're big and colorful from the inside as opposed to the outside? Nine out of 10 buildings along Maple have big signage on their windows.

Yes, and at risk of sounding silly, the answer is yes. If I could just read it to you. I cannot find it. Why can't I find it? Oh, so window sign is defined as an interior sign other than a product or decorative display affixed to business windows and or doors or within three feet of the windows or doors. So an interior sign is what I'm suggesting. The issue is with this sign because it's kind of sandwiched between the glass, has two separate panels.

So all that other signage was interior applied that you see up and down, you know, nine out of 10 buildings have.

I tend to agree, although we're not talking specifics here. Well in general in general, I think you're yes, you're correct in general.

Could they be temporary signs displaying to the daily specials or Advertising a shoe brand.

I mean Yeah, that they're open right everything.

I mean, yeah, there's a myriad of different signs So, you know am I gonna walk up and down and if someone taped their hours to the outside of the door? Will that technically violate this? Sure, I guess but for the most part the things you're seeing are permitted as window signage.

Okay. Any other questions? Seeing none, we'd love to hear from you. If you could tell us your name, your address, your position with the advertising company or the... Sure.

Chris Long, 124 Peabody, Birmingham, Michigan. Architect representing DWR. As Nick said, it's a sign that conforms in pretty much all ways except for the fact that It's a wall sign, which is allowed with HTC approval. I also want to point out the fact that the sign we're talking about is very subtle and also five feet in back of the storefront. So it's meant to be classy, very discreet. Instead of just a decal, we're trying to make it something a little bit more fitting for the store and its product. I don't know how to describe it anything more or less than that.

I'm just curious because I know that when I knew that the store was coming in and my wife and I knew we drove down maple a couple times and had trouble identifying it mostly because I kept looking in the sign ban wondering where it was so and I think the sign the proposed location is fine and it's perfect for pedestrian traffic and probably perfect for what you're shooting for I'm curious why the why the sign ban isn't an area that you want to use or they want to use to display

We would maybe agree on that. I'm not the designer of the facade. Right. I think they're just trying to be, again, very subtle, very discreet. You know who we are, you'll find us. Right. And I think that's actually not a bad thing, by the way, with everybody, again, screaming the signage, as was pointed out. This is a different way of accomplishing, hopefully, something as good or better.

I guess, why not just hang it on the inside of the window?

What was approved before, by the way, was hanging outside the same sign. They changed the trade dress or the actual logo, but it was hung outside of the building. From the ceiling. From the ceiling, right. Like little vestibule area. So they decided to affix it to the window with a cutout so it's got some dimension and shadow. It's architecturally nice. It's... I Don't know how to explain it. You know, it's just it just is what it is. So it's better than a decal certainly inside would be Okay, I guess but again I'm at the designer so I can't Validate it further. Thank you.

Any other questions for mr. Long? Seeing none. Thank you, sir in the audience online, I guess. Anyone particularly online that would like to do the raised hand feature and let us know that you'd like to comment on this appeal? See anything? I'm gonna change my view here. Definitely online. Nobody? Seeing no one for public comment, we'll move from that to discussion in motion.

In regard to appeal 2616 for the property of 214 West Maple, I would move to deny the request. Quite simply, I just haven't heard that there's any special conditions applicable to the property. I haven't heard any hardships. I haven't heard how this would do substantial justice to the property owner or the neighboring owners or the general public. I think if we granted the variance, it would probably be contrary to the spirit and purpose of the zoning ordinance. They have signage. There's a number of different options to have more than adequate signage without the necessity of the variance. And so I have not heard of any reasons as to why this is even arguably necessary. So for those reasons, I would move to deny.

All right. Yeah, I would... You know, to support the motion, it seems like such an innocuous sign situation, but I believe that the same effect could be easily achieved by other means without having to violate the zoning ordinance in this case. Even though what's done there is very subtle and nicely done, I don't think it reaches the point where it would actually warrant having to go outside the zoning ordinance in this case.

Any other comments about this appeal? I'm somewhat torn. I feel like they're not maximizing the amount of signage they could have. They're not overdoing the signage. They're being unique. I personally don't think they're probably max and I'm not in advertising. I don't think they're maximizing their exposure and maybe that's the intent. and to force them to have a logo that would be nylon or metallic that would go on the inside that would achieve the same square footage, font, and exposure without the dimension. And it is a design studio with unique modern designs. I think I could go either way, honestly. I do agree they could probably achieve something beautiful without needing a variance. So I guess I'll wait to see how the vote goes, but I could really go either way, I have to say. I do think that the other option of them drilling into the granite, creating the maximum signage they could do since it's only three letters, would be much more obnoxious than what they're asking for. So I don't know. Having a little bit of dimension on it, whether it's in the front of the glass or the back of the glass, seems a little bit not conforming to the new people that are their leasing space, what they're trying to achieve. Like I said, I could probably go either way, but I'm curious to see how this ends up. We have a motion to deny. Can we please call the roll?

Casey Hamelser?

Yes.

John Miller?

Yes.

Eric Morganroth?

Yes.

Ron Ruddy? Yes.

Kevin Hart?

Yes.

Sorry. I'm sure they will, you and they will come up with something amazing.

Something they're happy with, hopefully.

Do we have any other business we need to talk about? No, we don't. Anybody in the audience or online that would like to speak about a topic that was not part of the topics today? Assuming I see none. We'll close public comment. We have a motion to adjourn. Second. No, Mr. Kona was the motion. Mr. Lively was the second. All in favor? Aye. We are adjourned.