Thursday, October 24, 2002
Number 31: Oct. 24, 2002
1) Editorial: When governance turns criminal it’s time for us to say, ‘Enough is enough!’
2) Tholen admitted trespass prior to resignation
3) Plan Board, seeking OK to inspect buildings, is told by city attorney to mind its own business
4) New rule to limit most buildings to four stories
5) Model city encourages neighborhood parking
6) BZA reverses Plan Board, grants preliminary site plan OK to single-family unit downtown
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In this edition:
1) Editorial: When governance turns criminal it's time for us to say, 'Enough is enough!'
2) Tholen admitted trespass prior to resignation
3) Plan Board, seeking OK to inspect buildings, is told by city attorney to mind its own business
4) New rule to limit most buildings to four stories
5) Model city encourages neighborhood parking
6) BZA reverses Plan Board, grants preliminary site plan OK to single-family unit downtown
7) To be removed, send email to info@bhambuzz.org
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1) Editorial: When governance turns criminal it's time for us to say, 'Enough is enough!'
Oct. 23, 2002
We can now put to rest any question whatsoever that the Birmingham City Commission and its appointees on its advisory Planning Board are dangerously -- and in at least one case, criminally -- out of control.
It's one thing to zealously carry out the duties of an appointive office. When the zeal turns criminal, it's time for a community to stand up say, "Enough is enough!"
Former Planning Board member Charles Tholen, a "pillar" of our community according to his supporters on the Commission and board, admitted trespassing on private property in the misguided conduct of his duties. He later resigned his office. Members of the City Commission praised him and refused to accept his resignation. And in an astonishing display of bravado, the Planning Board sought to compel applicants for site plan review to consent to site inspections by Board members and city planning staffers.
City Attorney Tim Currier swatted them away Monday night with an unequivocal legal opinion that basically said: Mind your own business. Don't expect his opinion to have much effect. At the same meeting, Commissioners appointed George Dilgard, one of their longtime cronies, to replace Tholen on the Planning Board.
Commissioners and Planning Board members have totally lost sight -- if they ever had it -- of their roles in city government. City Commissioners, for example, now insist on reviewing every request for removal from city property of any tree, no matter how sickly. Teaming up with the Planning Board, they have spent countless hours in the last month deliberating over the calculation of parking requirements for restaurants, earnestly laboring to solve a problem that doesn't exist. Planning Board members rule on the color of brick mortar on proposed commercial buildings.
Brick mortar!
These are just a few examples of the insanity that passes for governance in Birmingham.
Don't dispair. Pockets of sanity remain in City Hall. Among the intelligent, reasonable and potentially influential survivors are City Manager Tom Markus, Police Chief Richard Patterson, Building Official Mary Ferrario, City Planner Jim Sabo and Commissioner Rackeline Hoff.
It is time for these and other influential members of our community to stand up and cry, in the immortal words of Howard Beale, "I'm mad as hell, and I'm not going to take it any more!"
2) Tholen admitted trespass prior to resignation
Oct. 23, 2002
Former Birmingham Planning Board member Charles Tholen admitted to police six weeks before he resigned that he trespassed on private property that was the subject of a site plan review before him.
Birmingham Police Chief Richard Patterson met with Tholen and Planning Board Chairman Gary Kulak on June 3. The trespass occurred May 12 at 720 Forest St. in the then-under construction offices of builder Mosher, Dolan, Cataldo & Kelly. The property was the subject of a site plan review by the board.
Tholen resigned on July 13.
Patterson said he told Tholen that trespassing, even in the good faith conduct of his duties as a Planning Board member, is nonetheless illegal, and that such site inspections require consent of the property owner, and must be carried out by the city's Building Official.
"The bottom line is: There was no complainant, but I had an obligation to let them know that this is illegal... The police can't even do it! ... Whatever they've done in the past, my point was: Don't do it in the future," Patterson said Wednesday.
City planner Jim Sabo reported Tholen's trespass. Sabo did not return a phone call Wednesday, but Patterson said, "Sabo was concerned enough to bring it to our attention."
In a May 15 email to then-Community Development Director Patricia McCullough, Sabo reported his recollection of a conversation with Tholen two days prior:
"He said something along these lines," Sabo wrote, paraphrasing Tholen.
" 'Jim I have some concerns about the petitioner request. I was over at the site reviewing it for the [May 15 revised final site plan review] meeting. I noticed that there were window wells for the basement that were not part of the approved site plan. I walked over to the building and pryed [sic] open one of the window wells and crawled down into the basement and looked around. What I say concerned me because they have finished the walls in the basement. There is drywall and it looks like they plan to occupy that space. My question is, if they do that, will it then change their parking requirements and their approved site plan. He said look into it and if there is no issue, don't worry about calling me back. I said I would call the petitioner and let them know. He said "oh don't do that; I like to see their faces when I bring it up at the meeting." ' "
According to a report of Tholen's meeting with the Chief of Police written by Police Commander John Van Gorder, "Mr. Tholen said in order to get a closer look into the basement, he lifted the window well cover, stepped into the well and peered through the window. Mr. Tholen said he never entered the building nor did he pry anything. He felt the closer inspection was warranted due to the request of the builder for the approval of the changes."
Tholen did not return a call Wednesday. Kulak said he had no comment.
According to Van Gorder's report, Doyle Mosher, a principal in Mosher, Dolan, was told of the incident by Community Development officials on May 14, but declined "to make an issue of this intrusion into his property."
J.C. Cataldo, another principal of Mosher, Dolan, and himself a former Planning Board member, said Wednesday, "It's really unfortunate that that's the way they chose to handle it. Had they called us, we would have gladly given them a tour."
Van Gorder's report of the Tholen meeting noted that Tholen apologized to Patterson. Cataldo said he was unaware of any apology to Mosher, Dolan.
After Tholen resigned, the City Commission, led by Commissioners Donald Carney, Dante Lanzetta and Seth Chafetz, refused to accept his resignation. Carney publicly praised Tholen and urged him to reconsider his decision. Kulak also praised Tholen, calling him "one of the pillars of this community."
Kulak also began efforts to seek permission for Planning Board members to conduct site inspections of properties up for site plan review. Planning Board members appeared Monday before the City Commission to argue that applicants for site plan review ought to be compelled to consent to inspections by board members and city staff.
City Attorney Tim Currier rebuffed their request in a legal opinion reported below.
Visit http://www.bhambuzz.org/pdfs/Tholen_pox.pdf to read Sabo's email and two police incident reports on the matter.
3) Plan Board, seeking OK to inspect buildings, is told by city attorney to mind its own business
Oct. 22, 2002
In a stern admonition to the Planning Board and city staff, City Attorney Tim Currier has told the Planning Board that it is the responsibility of the city Building Official, not the Planning Board or city staff, to conduct site inspections of properties that are the subject of applications before the board.
Planning Board Chairman Gary Kulak had asked whether application forms could be revised to include language that states that an applicant must give permission for Planning Board members and city planning staff to conduct site inspections of subject properties. .
"The answer to your question is no, as to do so would violate various City of Birmingham ordinances and the fourth amendment of the Constitution of the United States of America," Currier wrote in a letter to City Manager Tom Markus and City Planner Jana Ecker.
Planning Board "decisions and site plan approvals must be based on what is in the ordinance and on the record. Taking into account information not presented at a meeting conducted in accordance with the Open Meetings Act could be viewed as being inappropriate and would be beyond the scope of the record. Decisions made on information outside the record could be ruled to be improper," Currier said.
Visit http://www.bhambuzz.org/pdfs/site_inspections.pdf to read Currier's complete opinion.
4) New rule to limit most buildings to four stories
Oct. 24, 2002
From the Birmingham Eccentric
By Larry Ruehlen
Historic buildings in downtown Birmingham will get plenty of air and sunlight -- but the same rule that protects those buildings may hinder the redevelopment of Jacobson's sites downtown.
"Based on the actions taken last night, residential is the only way those sites could be developed with five stories," said Jim Sabo, Birmingham city planner.
But in practice, it's unlikely a five-story building of any sort could be erected in most circumstances.
"I doubt very much that many five-story buildings will be proposed or built under this ordinance," said City Manager Tom Markus.
On Monday, the Birmingham City Commission voted 5-2 to amend a city ordinance to restrict future construction of five-story buildings using the downtown overlay zoning district. Commissioners Rackeline Hoff and Russell Dixon voted against the changes.
The overlay zoning district requires a mix of retail, residential and office uses. Such a mix was encouraged by Andres Duany, an urban planner who authored the Downtown Birmingham 2016 Plan.
The city's other zoning class that allows five-story buildings requires just residential uses. Potential development plans including a five-story mixed-use building and a hotel have been suggested for the Jacobson's sites but both remain for sale at a reported $10 million. Developers have said they need five stories to make a profit, especially considering the uncertain economy.
Dante Lanzetta Jr., city commissioner, said the new rules will prevent five-story buildings that look like six-story buildings from being built downtown. He and other elected and appointed officials have said the city has to do more to protect the historic character of downtown. Earlier, the commission also reduced the height of buildings allowed downtown.
Months ago, hundreds of merchants vehemently opposed a proposal to eliminate the fifth story option altogether. They said allowing a fifth story makes projects viable because they can make a profit in the overlay zoning district, which requires expensive construction materials. Not one complained Monday even though the new changes could, according to one expert, accomplish the same thing.
"The way this is written there is no way to build five-stories downtown," said Bob Gibbs, an urban planner who worked with Duany. "It's a typical political game. They can look you in the eye and say they still allow five stories when it isn't true. It's shameful the way they handled this."
Nicholas Lomako, a planning consultant hired by the city, said the new language is more precise and based on light and air concepts that are common in the planning industry. He also said it would be up to the planning board to interpret whether proposed buildings would block the light and air of neighboring residential and historic districts.
Since most residential and historic districts contain one and two story buildings, it is difficult to imagine how a five-story building would not block sun or air from reaching surrounding districts, said Gibbs.
The new language would also let the board decide whether a five-story building is appropriate given the height, mass and scale of adjacent structures on abutting properties. Basically, the only way a five story building could be built with retail is if it's next to a current five story building that isn't near smaller buildings.
5) Model city encourages neighborhood parking
Oct. 20, 2002
From the Birmingham Eccentric
By Larry Ruehlen
Without a single parking garage, the Canadian town of Niagara-on-the-Lake is able to accommodate more than 3 million visitors each year. It does so by encouraging visitors to park in neighborhoods -- a concept that could solve Birmingham's parking problem, should city officials decide to expand Shain Park into adjacent city parking lot No. 7.
"It's always a balancing act between the rights of the residents and the rights of the visitors," said Niagara-on-the-Lake Lord Mayor Gary Burroughs. "It's a challenge... but this town is the way it is because its people really care."
Burroughs was talking to a contingent of 26 people from Birmingham who visited Niagara-on-the-Lake Thursday to take a look at the city's parks and discover how the historical town deals with the influx of people.
"It was an interesting concept," said Birmingham Mayor Dianne McKeon, on neighborhood parking. "But I don't know how well it would be accepted in Birmingham."
Niagara-on-the-Lake has less than half the parking spaces Birmingham has but manages to keep most motorists content with a combination of free parking on the outskirts of town, a few interior lots and metered parking on streets. Some of the spaces have traditional parking meters, but others have "pay and display" parking machines that take credit cards. Only one machine is needed per block, thus eliminating the need for rows of meters.
McKeon, who lives near Shain Park, said the city will likely explore installing more parking around the perimeter of the park if the expansion goes through. Shain Park is just over an acre but the expansion, if it includes lot No. 7 as anticipated, would double the size of the park.
The city recently hired noted architect Andres Duany to begin planning the expansion and city officials are talking about what could occupy the added space.
Bob Fox, Birmingham assistant director of public services, said proposed expansion of Shain Parks will depend on the opinions of residents and the Birmingham City Commission. But the thing he liked most was the band shell in Simcoe Park.
That opinion was enthusiastically shared by June Taylor McGregor, the woman who has been organizing Birmingham's summer Thursday night Concerts in the Park for more than a decade.
"I wish we could load it up and take it home with us," said McGregor, of the band shell. "If there is one thing Birmingham needs, it's a band shell."
McGregor has been using a portable stage for annual events like Jazz Fest and for weekly concerts. That stage doesn't protect performers from the rain and most of the time, musicians have to stare into the setting sun as they play.
A new band shell could face north and include a roof, said McGregor, who is already planning fund-raisers to bring a band shell to Birmingham.
The only disappointing thing to McGregor was that the band shell in Niagara-on-the-Lake is rarely used because local residents near the park object to loud music. Only acoustic performances are allowed in Simcoe Park and some eight concerts a year take place.
"I can't believe it," said McGregor, "they have the shell and don't use it, and we have the concerts and no shell."
Niagara-on-the-Lake is a city of 14,000 people near Niagara Falls in Ontario, Canada. It is known as Canada's prettiest town and Thursday's visit convinced Birmingham folks that the nickname is well earned.
"It was the most beautiful display of horticulture I've ever seen," said Fox. "We need to engage our residents and find some people who are really gung-ho to capitalize on this."
Flowers and ornamental trees line major streets and regularly appear in most residents' yards. It seems as if most Niagara-on-the-Lake citizens must own stock in the local plant nursery because the grounds of house after house are lush and manicured.
Fox said Birmingham could begin a major beautification project that resembles the effort in Niagara-on-the-Lake that would make downtown more aesthetically pleasing.
6) BZA reverses Plan Board, grants preliminary site plan OK to single-family unit downtown
Oct. 13, 2002
From the Birmingham Eccentric
By Larry Ruehlen
Mel Kaftan is moving up to a deluxe apartment in the sky.
"I'm elated that the BZA recognized the ambiguity of the ordinance," said Kaftan. "... I'm excited about finally getting to live downtown in the urban setting."
Kaftan's new place will be above a commercial building at 369 E. Maple. The Birmingham Board of Zoning Appeals decided 7-0 Wednesday to allow one residential unit to be built above the store, reversing an earlier decision by the planning board. The BZA also took the unusual step of granting preliminary site plan approval. Kaftan needs only to pass final site plan approval at the planning board and he'll be able to build after more than a year of haggling with the city.
Kaftan is one of several people who have been held up at the planning board over differences of opinion.
The planning board put a hold on Kaftan's site plan approval on the advice of Nicholas Lomako, an urban planner and consultant for the city. In a June 19 report Lomako said a study of the ordinance revealed that "only multiple-family dwellings are allowed above commercial or office use" and that at least three units had to be included to meet the ordinance.
Kingsley Cotton III, chairman of the BZA, explained the ruling.
"Zoning ordinances generally allow less intense uses to occur," said Cotton. "It really doesn't make sense to allow multiple units and not single units."
Kaftan said he bought the building after the city approved single-family dwellings above commercial space on two other occasions. He said he was willing to take his case to court if necessary -- though that now appears unlikely.
Months ago, Gary Kulak, chairman of the planning board, said the board's prior approvals for single units were based on advice of city planners who have since left Birmingham for other jobs. He also said the ordinance was clear to him.
"What's required is multi-family," he said. "...Obviously, either someone didn't understand the ordinance or they had a different interpretation of it."
The opposing interpretation, which the BZA followed, was that the multi-unit rule was a maximum limit, not an absolute requirement.
Kulak said he is still convinced multiple units should be required. As for the BZA granting preliminary site plan approval, Kulak said he had "never heard of them doing that before."
7) To be removed, send email to info@bhambuzz.org
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