Number 6: February 4, 2002

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The Birmingham Buzz # 6
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February 4, 2002

Welcome to the sixth edition of the Birmingham Buzz. If you missed our first five editions, check out our archives at http://www.bhambuzz.org/archives.htm.

Our mission: To inform and involve all Birmingham citizens.

Visit us at http://www.bhambuzz.org.

In this edition:

1) City officials deposed in Vinewood case
2) City restricts placement of mezzanines
3) The still after the McGraw storm
4) State urges city to accept road funds
5) Public Arts Board appointed
6) Neighborhood Roundtables set
7) Editorial: The vision and intent of 2016
8) Editorial: Build on merchants meeting
9) Editorial: The righteous pretenders
10) McGraw resignation letter
11) Second Booth Park workshop is set
12) City develops tree preservation ordinance
13) We're (still) hungry for hits
14) Talk is (still) cheap
15) To be removed.


1) City officials deposed in Vinewood case

February 1, 2002

Was the Birmingham City Commission right last year to declare 543 Vinewood a historic district over the objections of the property owner? Or should the property owner be allowed to demolish or move the house to make way for a new home that does not comply with current residential zoning laws?

City officials were deposed this week in the case, in which the owner of the property, the Bruley Trust, is challenging the historic designation of the property. The owner is also challenging the so-called "bigfoot" lot coverage and building height ordinance that was adopted around the same time as the fight began over the historic designation, said trust attorney Tim Stoepker, of the law firm of Dickinson Wright.

City Commissioners have rejected the decision of mediators in the case, who found in favor of the property owner and recommended a settlement of $500,000.

City Manager Tom Markus disputed claims Friday that the city's insurer has withdrawn from the case. He said the Michigan Municipal Risk Management Authority continues to cover the city, which has a $150,000 deductible. Markus added, however, that if the city's action is judged to be a taking, "then no coverage will be provided."

A "taking" is a government action assuming ownership of real property by eminent domain.

In 1996, the property was listed by the city as potentially historic. In 1999, a previous owner was among 18 property owners asked to voluntarily declare their properties historic. The former owner did not respond to the written requests, said Stoepker.

The trust acquired the property in August 1999, during an ongoing city debate about residential lot coverage and building height.

In early May of 2000, the trust submitted an application for a building permit. Plans called for demolition of the house and the construction of a home according to then-acceptable zoning ordinances. The application was submitted just prior to adoption of the ordinance limiting lot coverage and building height.

Under the law, permit applications made under the old law that were pending when the new law took effect were acceptable if demolition and final permits were obtained by March 31, 2001, said Stoepker.

In September of 2000, the Commission imposed a six-month moratorium on development of the property. The moratorium was set to expire just days before the deadline for demolition and permitting under the new ordinance.

Deadlines and zoning changes notwithstanding, the city declared the property a historic district on March 19, 2001, following a study and recommendation by the Historic District & Design Review Commission.

(Click on the following link to download a 1.1MB copy of the HDDRC study: http://www.bhambuzz.org/pdfs/HDDRC_Vinewood.pdf.)

"The Michigan Court of Appeals told the city of Ann Arbor that you can't create a single-house historic district," Stopker said, explaining the legal basis for his argument against the historic designation.

"They took my client's property without just compensation," he said, and the damage "increases every day that we don't have use of our property."

In challenging the zoning ordinances, Stoepker argues that the city did not "advance a real and substantial governmental interest. In laymen's terms, for a government to adopt legislation as it relates to regulating the use of property, it can only do so if it advances a real and substantial governmental interest."


2) City restricts placement of mezzanines

From the Birmingham Eccentric
February 3, 2002

Restricting mezzanines to the first floor of buildings is a misguided decision that will backfire, said Thomas McGraw, a former member of the Birmingham Planning Board.
"It's high comedy," said McGraw. "They wanted to look up and see five sets of windows instead of six. There is essentially no way you can include a mezzanine in Birmingham now."

The Willits, a luxury condominium development currently under construction in Birmingham, includes a mezzanine on the top floor. Members of the city commission have said the building looks like a six-story structure, something they want to avoid in the future.

McGraw, an attorney who specializes in zoning matters, resigned from the planning board earlier this month and claimed the board and city commission were no longer interested in bringing sound planning to the city.

He said last Monday's 5-1 commission decision restricting mezzanines to the first floor of buildings in the city's overlay zoning district is yet another example of their goal of discouraging development.

"They won't just come out and say it, but the commission's real intent is to stop development," he said. "I don't know why they didn't just take mezzanines out of the ordinance altogether."

City Commissioner Russell Dixon voted no after questioning how the best interests of the public could be served by the restriction.

Though first-floor mezzanines were allowed under the current ordinance, Gary Kulak, chairman of the planning board, said the new restriction would encourage more retail development downtown.

First-floor retail is required in the overlay zoning district and adding more space to the first floor would, in effect, mean more retail space for the city.

City planner Jill Bahm warned the restriction would prevent the construction of loft-style dwellings and discourage affordable housing downtown. Lofts may be cheaper because they could require fewer parking spaces, said Bahm, but there are currently no lofts in the city.

Many people saw the 2001 city commission election as a referendum on development issues. A slate of candidates who talked about the need to rein in development won the election.

Since then, the planning board and commission have made decisions consistent with that goal.

In addition to looking at ways to encourage loft-style housing, the planning board also plans to revisit parking requirements for residential developments with the goal of bringing more affordable housing to the downtown.


3) The still after the storm

February 2, 2002

Thomas McGraw made some pretty heavy charges about the City Commission and the Planning Board when he resigned a couple of weeks ago. (His resignation letter is published in full below.) We thought City Commissioners and the Planning Board chairman ought to be given an opportunity to respond. Heck, we thought the citizens of Birmingham deserved a response. So on Wednesday we shot off emails to each of the commissioners and a couple of members of the Planning Board.

The responses -- such as they were -- trickled in slowly. Mayor Dianne McKeon was the first to respond. She gratiously promised to review the letter and "get back to you with my response."

Planning Board chairman Gary Kulak also responded:

"Mr. McGraw's letter was directed to the City Commission and not the Planning Board. As such it is not my place to respond to it," wrote Kulak, ignoring direct jabs such as this from McGraw:

"A current majority of the Planning Board disregards traditional principles and common sense, and directs their energy toward blocking projects in order to satisfy the City Commission. Recent decisions follow no plan, adopted or otherwise. They appear to be made in a haphazard and arbitrary fashion."

Wrote Kulak: "Mr. McGraw did offer a verbal resignation to the Planning Board at the conclusion of the January 9th meeting. At that time I acknowledged, on the record, his service on the board. The minutes of this meeting are available from the city."

City Commission Gordon Thorsby, a former member of the Planning Board, weighed in on Saturday, after he was finally able to download more than 100 emails stuck in cyberspace.

"The guy did some nice service for the city...," said Thorsby. "I don't agree with him, but has a right to his opinion."

Thorsby defended the recent appointment of Jim Neuhard, an attorney, as Thorsby's replacement on the board. "Jim was very well qualified," said Thorsby. "He's had some very good experience... He's an involved person in the community."


4) State urges city to accept road funds

From the Birmingham Eccentric
January 31, 2002

Motorists attempting to merge from S. Old Woodward onto Woodward are getting injured in side-swipe accidents that will continue unless city and state officials agree on a remedy for the dangerous intersection, said Bob Lariviere, an engineer with the Michigan Department of Transportation.

"We have moral obligations to fix this problem," said Lariviere. "…We would eliminate 100 percent of the accidents… and it wouldn't cost Birmingham residents anything."
Officials from MDOT and Birmingham are expected to sit down in the coming weeks in an attempt to resolve a controversy over whether the city should accept federal grant money to reconfigure the intersection.

MDOT studied 18 injury accidents at the intersection from 1997 to 1999 and said future accidents could be prevented under the proposed solution.

S. Old Woodward merges with Woodward at Lincoln, forcing vehicles traveling at vastly different speeds to blend quickly. Under the MDOT plan, S. Old Woodward would no longer merge with Woodward there. Instead, southbound traffic on Old Woodward would enter Woodward north of Landon Street.

People who miss that turn would have to go right on Lincoln and into an adjacent neighborhood - something commissioners said they wanted to avoid.

Federal officials have offered as much as $280,000 for the job, but preliminary estimates peg the cost at some $150,000.

Birmingham Police Chief Richard Patterson said traffic would increase in the residential area for a short time. When motorists realize the intersection is changed, they will turn onto Woodward farther north and avoid the neighborhood.

Commission members weren't so sure. They wondered why MDOT hadn't considered the city's desired option of installing a traffic circle, or "roundabout," at the intersection as called for in the Downtown Birmingham 2016 Plan.

"Isn't there merit in doing it right the first time," asked Commissioner Donald Carney, "…rather than taking the money and running?"

Patterson said there have been many accidents at the intersection, and the city would open itself to legal liability if it refuses the money.

Commissioner Dante Lanzetta Jr. asked for a commitment to put in a traffic circle within five years. "This (MDOT's solution) is once again about moving metal," he said. "Are we ever going to start being concerned for the safety of people and not the safety of cars? This is a hostile environment and we are trying to calm it."

In a Tuesday Telephone interview, Lariviere said MDOT is willing to listen to the city as long as officials back off from their demand for a traffic circle.
"We didn't even consider it," he said. "That is a long-range planning concept, and no one in the city has done the work to see if it is feasible … we are talking about years worth of study."

Larivier said though MDOT is considering a traffic circle for another area of the state, doing so in Birmingham would alter the road configurations and intersections for much of the city's south side.

He also said he couldn't remember another community being so reluctant about receiving free money.

"I didn't feel like they like me much," he said. "Normally, communities want this type of project to go forward as fast as possible to keep their own people safe."

In March, Commissioners Seth Chafetz, Don Carney, Russell Dixon and Dianne McKeon voted to approve the MDOT plan in principle. Despite the fact that the plan went largely unchanged, Chafetz said Monday he would "never" approve a plan that sends traffic into a neighborhood.

If both sides reach an agreement, the work would likely get done in 2002.


5) Public Arts Board appointed

The Birmingham City Commission has appointed four residents and three non-residents to the newly established Public Arts Board.

The residents are:
Rebecca Hart (three- year term)
Mary Dennison (three-year term)
Mark Schwartz (two-year term)
Barb Heller (one- year term)

The non-residents are:
Garhart Nodell (two-year term)
Marilyn Wheaton (two-year term)
Janet Torno (one-year term)

Click on the following link to read or download the ordinance establishing the board, along with the applications and resumes of the appointees: http://www.bhambuzz.org/pdfs/artsboard.pdf.


6) Neighborhood Roundtables set

Mark your calendar for the 2002 Neighborhood Roundtable meetings, where members of the public are invited to participate in informal, freewheeling discussions of topics of interest to Birmingham residents. The City Clerk has announced dates and topics for the meetings as follows:

Feb. 21........Sewers
April 25........Traffic
July 25.........Historic Preservation
Oct. 24.........Parks and Recreation

All meetings will be held from 6:30-8:30 p.m. at the Department of Public Services Building, 851 S. Eton.

The Neighborhood Roundtable Committee was established by a March 15, 1999 resolution of the City Commission. It consists of the Mayor, Mayor Pro Tem and anyone who claims to represent a Birmingham homeowners association.


7) Editorial: The vision and intent of 2016

By Mark Nickita, AIA
February 1, 2002

If you want to understand the recent debate regarding the Downtown Birmingham 2016 Plan, and changes occurring on the City Commission and Planning Board, then it is important to understand how the various parties to the debate interpret the vision and intent of the plan.

One excellent and important example of opposing interpretations arose with approval of the Townsend Hotel addition. This may have been one of the first big 2016 issues, and if you're going to look back and find a point where the current divisiveness in city government began, you might look here.

For those who are keeping score, the Townsend addition is currently the only completed building in Birmingham that was approved according to zoning laws adopted as a direct result of the 2016 Plan -- the so-called "overlay" zoning ordinance. This ordinance allows developers to choose a new set of rules by which they can develop downtown property. The new rules were intended to give developers more leeway in return for developing in accordance with the 2016 Plan. They can always go by the old rules -- the so-called "underlay" zoning ordinance -- but it has been, until recently, the city's intent to have most development occur according to the new, "overlay" ordinance.

(The Willits and Hamilton buildings are not complete, and the Palladium was built as a result of the settlement of a lawsuit against the city.)

For the Townsend, the leeway granted by the overlay ordinance allowed a fifth floor (in the attic space above the eaves line), but only if the Planning Board found that the predominant use of the Townsend was residential in nature.

Unfortunately, neither the 2016 Plan nor the resulting zoning ordinance is specific about hotels and whether they should be considered residential, commercial or otherwise. So it was up to the Planning Board, working with the city Planning Department staff, to decide. Both agreed: The vision and intent of the 2016 Plan is to bring more people to downtown Birmingham to help with the success of the stores, restaurants and ultimately the taxpaying citizens by increasing property values and desirability. The Townsend would function similarly to a residential building by putting more people on the street.

In fact, the Townsend's 70 new rooms undoubtedly bring more activity to the streets of Birmingham than even a new residential building. For example, most hotel guests choose to eat outside their rooms, bringing new business to all the restaurants in town.

Also, studies show that people out of town on business or vacation have a tendency to buy stuff. Harmony House, Anthropologie, Three Dog Bakery and Tender surely benefit from these out-of-towners, as do the rest of the shops in town. Is not this the "intent" of the plan - to increase traffic downtown as much as possible and assist in its vibrancy? So what's the problem?

A faction in the city disagreed with the Planning Board and city staff. They maintain that it was not a residential use, and that the building is too tall. They strongly believe that the Townsend addition should not have been approved and thought that the Planning Board was out of line.

Since then, the overlay ordinance that resulted from the 2016 Plan has been continuously modified. The Planning Board has been altered significantly, and by most estimates would not support the Townsend addition if it were proposed today. The City Commission has reduced allowable building heights in the overlay ordinance, and reduced incentives to build according to the 2016 Plan. The intent is clear: to stop construction of the type of buildings that we have seen go up over the last few years. Today, under current zoning laws, neither the Townsend addition, nor the Willits, nor the Palladium could be built.

The Townsend addition and the streetscape it creates on Merrill Street look, feel and work precisely as envisioned by the 2016 Plan. Go there. Walk along the street. I seriously doubt you will hear many complaints about the structure that dominates the street.

Let's bring back the heart of the 2016 Plan. Let the plan work as intended. If implemented as envisioned, all of us, including the almost 4,000 residents and stakeholders who participated in its creation, will benefit.

(Nickita is an architect and former chairman of the Birmingham Planning Board. Click on the following link to read a September 2001 Birmingham Eccentric guest editorial by Nickita about downtown building heights: http://www.bhambuzz.org/pdfs/ecc_nickita_streets.pdf.)


8) Editorial: Build on merchants meeting

From the Birmingham Eccentric
January 31, 2002

Birmingham City Commissioners stuck their heads into the lions' den last week and agreed to conduct a no-holds-barred dialogue with city merchants.

The three-hour meeting was a brainstorming session designed to take input from people doing business in Birmingham.

Several topics were discussed, including parking problems, high rental rates, burdensome permit regulations, high utility costs and retail product selection. Generally, the discussion was brisk and frank. Many merchants touched on key issues, and everyone left with the feeling that the time had been productively spent.

It's no secret that there is a measure of animosity between city commissioners and the Birmingham business community. Last year's election was a polarized affair, with many candidates openly siding with residents who are impatient with what they see as the commercial community's dominant role in the city. Some of the business owners at last week's meeting broached this issue, and pointedly asked commissioners to explain their apparent hostility toward local business interests.

For the most part, commissioners were diplomatic. Mayor Dianne McKeon said she spends time downtown every day, including Sundays; Commissioner Don Carney said that, while he initiated a review of the Principal Shopping District, he wasn't gunning for anyone and only wanted to pose questions; Commissioner Dante Lanzetta said it was his obligation as an elected representative to be responsive to his constituents.

Whatever you choose to believe about the disposition of the current city commission, last week's summit could only be viewed as a positive development. Many business operators, even the ones who were outspoken in criticizing the elected board, agreed that an important step had been taken to bridge the understanding gap between city government and the business community.

The next step now is to build on the momentum and continue working toward a relationship of trust. City officials can best do this by following up on some of the merchants' suggestions and show good faith in responding to the concerns they heard last week. Specifically, the customer survey for which proprietors called should be implemented as soon as possible and ways should be found to speed the flow of cars leaving parking decks during peak times.

The good feeling generated by the merchants' meeting opens the door for a more constructive dialogue between commissioners and business operators. A residue of skepticism remains, but a continuing effort to respond to the merchants will help lead the city to a fresh outlook where both residential and business concerns can be given due weight.


9) Editorial: The righteous pretenders

By Clinton Baller
January 31, 2002

Birmingham Mayor Dianne McKeon and and the City Commission have received several letters from Tim Bannister of the Presidents' Council of Homeowner Associations. The city is also involved with the Presidents' Council and others in the Neighborhood Roundtable Committee.

Among other things, Mr. Bannister and the Presidents' Council are pressuring the city to adopt a code of ethics for city officials and staff. Implicit in Mr. Bannister's letters is the suggestion that he and his council are representative of Birmingham residents in general.

That's a stretch.

Mr. Bannister has repeatedly declined the opportunity to substantiate this suggestion, a failure that is ironic for someone who so strenuously and righteously speaks in favor of ethics and integrity. Adding further irony is the innuendo he uses to bolster his argument. "In the last few years," he writes, "there have been constant rumors circulating across our community regarding decisions and activities made by public officials -- both elected and appointed -- that appear to benefit special-interest groups."

Give me a break.

If Mr. Bannister wants to go down that road, he ought to have the courage, integrity and ethical fortitude to be specific. What rumors about what decisions and activities by which public officials to benefit what special-interest groups?

Mr. Bannister would have us believe that the Presidents' Council represents Birmingham neighborhood associations, and contains one delegate from each association. In an April 1999 letter to the Commission regarding the Palladium project, he even had the audacity to claim the Council represented 7,970 "members and voters who live in Birmingham."

The fact is, many neighborhoods are not organized, some are very loosely organized, some do not participate in the Presidents' Council, and others have more than one delegate on the Council.

If Mr. Bannister wants to claim he represents the residents of Birmingham, then he should do a few very simple things:

* Release a copy of the council's bylaws.
* Release a list of current council members/delegates.
* Annually release a breakdown of the associations represented, including:
-- The number of members in each association.
-- How each association defines a "member."
-- Whether each association has its own set of bylaws.
-- Whether each association elects its leaders.
-- How each association communicates regularly with its members.

In addition, Mr. Bannister should explain why several neighborhood associations appear to be over-represented on the council, and what he has done over the past several years to foster greater representation on the Council.

The fact is, the Presidents' Council is little more than a good idea. It does a great job of representing the dozen or so people who get together monthly to harp on city officials, downtown merchants and local developers. But it has a long way to go before it can legitimately claim to represent thousands of Birmingham residents.

Despite its good intentions, the Council needs to gets some integrity of its own. Until then, the City Commission should see the Council for what it is, and not what it pretends to be.

PS: We recently received an email from incoming Council President Paul Marion Reagan. Continuing his predecessor's inclination toward pretense, Reagan put this official sounding signature on his email:

Paul Reagan
President
President's Council of Homeowner Associations
City of Birmingham
A Walkable Community


10) McGraw resignation letter

Following is the resignation letter of Birmingham Planning Board member Thomas McGraw:

January 10, 2002

Birmingham City Commission
250 Martin Street
Birmingham, Michigan 48009

Dear Commission Members:

It is my opinion that the Planning Board for the City of Birmingham has ceased operating as a traditional Planning Board. It has now become simply a political tool for the City Commission to stir the public and in some cases scare the public into voting in a certain fashion. Very simply, it is my opinion that the City Commission uses the Planning Board solely to garner votes for the Commission members.

It appears that the City Commission no longer appoints members of the Planning Board based upon their credentials and knowledge of planning and zoning. Rather, it appears to appoint those who it feels will set aside planning and zoning concepts, zoning ordinances, adopted plans or common sense, and vote solely in an anti-business and anti-development fashion.

In my opinion, a current majority of the Planning Board disregards traditional principles and common sense, and directs their energy toward blocking projects in order to satisfy the City Commission. Recent decisions follow no plan, adopted or otherwise. They appear to be made in a haphazard and arbitrary fashion.

The results of this process have only begun to materialize. With the failure to implement the 2016 Plan, many fears that led to the adoption of that Plan will be realized. Decisions which are not based upon any adopted plan or other clear goals will, no doubt, lead to litigation. The City is currently defending a case where the City Commission allegedly acted in an inappropriate manner when placing a historic designation on a home located on Vinewood. The case was mediated for $500,000 and the City's insurer will no longer defend the City in the lawsuit. The City Commission has not advised the taxpayers whether or not the City still has insurance for this case, or whether the taxpayers will be required to pay a judgment in this matter.

I can no longer serve on a Planning Board or for a City Commission, a majority of which, in my opinion, pursues only political objectives, and does not pursue compliance with planning and zoning goals or plans. For these reasons, and for numerous additional reasons, the disclosure of which would require many pages and anger those who feel they have taken control of our City, I hereby resign from my office as Vice-Chairman of the Planning Board and from my position as a member of the Planning Board for the City of Birmingham.

Sincerely,

Thomas J. McGraw
cc. Tom Markus, City Manager
Mary Ferrario, Building Official


11) Second Booth Park workshop is set

January 30, 2002

Mark your calendar: The second public workshop on development of a plan for Booth Park will be from 6:30-9:30 p.m., Wednesday, Feb. 20, at the Birmingham Public Service Building, 851 S. Eton. Consultants Wade-Trim will present several design alternatives resulting from the first workshop in January. Click on the following link to see Wade-Trim's report on the first workshop: http://www.bhambuzz.org/pdfs/BoothWorkshop1.pdf. The public will be welcomed to help refine these alternatives. What would you like to see in Booth Park? This is your chance to have an impact on the development of one of Birmingham's finest resources.


12) City develops tree preservation ordinance

January 30, 2002

The Birmingham Planning Board is set to consider a landmark tree ordinance that would set standards for the removal, maintenance, and planting of trees. A subcommittee of the board has met five times since Nov. 1, and will present a draft ordinance to the Planning Board at its Feb. 13 meeting, said city Community Development Director Patricia McCullough. The ordinance will also be reviewed by the city's Parks & Recreation Board, McCullough said.

Click on the following link to read McCullough's Jan. 4 memo to the city manager about the ordinance: http://www.bhambuzz.org/pdfs/treememo.pdf


13) We're (still) hungry for hits

The Buzz is growing quickly, but we're still hungry for hits, subscribers and supporters. We're currently peaking at around 40 hits a day, with roughly 300 subscribers and more than 50 supporters. But those numbers are peanuts when you consider that Birmingham has nearly 10,000 households. Please take a moment now to spread the word. Forward our web address to everyone in your email address book. Tell them it's good. Ask them to subscribe. Tell them it's free.
Help us meet our first goals of 1,000 subscribers, 100 supporters, and 100 hits per day!


14) Talk is (still) cheap

So why not participate in the Buzz discussion group? The ice has been broken! Just click on the following link -- http://www.bhambuzz.org/public.html -- or on the Discuss link on the left side of our home page. Talk about anything; have some fun!


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