Playing Chicken

Come unto me, all ye miscreants

Today was the first of 3 public hearings of the special Appeals Board hearing Chick-Fil-A‘s appeal of the Design Review Committee‘s unanimous decision to deny the construction of a stand-alone restaurant and drive-through at the corner of Highland Avenue and 20th Street South in the heart of Five Points South. 3 1/2 hours later, here’s the (longish) report:

1. Attorney Charlie Beavers, representing Chick-Fil-A, reduces the case to a fundamental question: did the DRC have the right to deny this project based on its proposed use? Answer: no, it did not. The use is allowed by current zoning and the DRC overstepped its bounds. He then proceeds to argue that, beyond this simple fact, Chick-Fil-A bent over backwards to modify its design numerous times, resulting in a very urban and appropriate design. At least according to Mr. Beavers.

2. Erwin Reed, Vice-President of Chick-Fil-A in charge of real estate, then states his corporation “doesn’t like to come to neighborhoods where we are not wanted.” He assures the chamber (about 50 people in all) that once it was built, the neighbors would love the place.

3. The opposition now has a chance to state its views. Attorney Alton Parker stands to contend the plan as drawn is suburban both in style and traffic accommodation, and therefore is not in keeping with the character of the neighborhood. “Why does Chick-Fil-A insist on doing something so opposed by the neighborhood?  Why insist on the drive-through?” [Note: both the Commercial Revitalization District and National Register designation papers, which were adopted as city ordinance, call for development in the neighborhood to be complementary and consistent with the historic, pedestrian character of the place; it is on these ordinances which the DRC based their ruling.]

Mike Calvert, president of Operation New Birmingham, states that he has 40 years of experience as an urban planner and expert witness on the topic, and this plan neither conforms to the City Center Master Plan nor to the Five Points South Revitalization Plan, and the DRC ruling should be upheld.

Bob Moody, adjacent property owner for 30 years, asks the board to uphold the ruling.

Frank Stitt, Alabama’s and one of the South’s most famed restaurateurs, states he loves Chick-Fil-A, but a drive-through is not appropriate on this site.

James Little, president of the Five Points South Merchant group, reminds the board that both his group and the Neighborhood Association approved (non-binding) resolutions opposing the current plan. He also states that Chick-Fil-A itself has admitted it needs a more “urban” prototype for pedestrian neighborhoods, and is implementing a pilot program in Chicago. He mentions the long lines at local suburban Chick-Fil-A outlets, and how this tight urban site can’t accommodate such traffic.

Joseph Baker, organizer of I Believe in Birmingham, speaks passionately  about the urban nature of the neighborhood, how we can’t put inappropriate uses into these special areas, and that corporations are not citizens. And if they go against the will of citizens, a boycott will be announced.

Betty Bock speaks about traffic nightmares if the plan were allowed.

Libby Rich says Chick-Fil-A is “a wonderful corporation. But this is our neighborhood. You [Chick-Fil-A] have overstepped your bounds.”

Ron Council points out the plan drawing only shows the property with almost no context, i.e. it leaves out all the historic structures around the intersection. More traffic woes for elderly people who walk or use wheelchairs on the sidewalks and must cross curb cuts.

Alison Glascock, Highland Park Neighborhood president, states she is not anti-corporation, but wants corporations to listen to the neighborhoods in which they locate. She regrets this situation has become “us vs. them.”

A long slog of a hearing

4. Charlie Beavers now stands up for Chick-Fil-A to rebut. He mentions the company’s traffic engineers have studied the site and are satisfied it will be fine. He insists this is indeed an urban design. He again asks the Board to overturn the DRC.

5. Greg Despinakas stands on behalf of the owner (who would lease the land to Chick-Fil-A). This is perhaps the most colorful moment: in a fiery, preacher-like sermon, he declares this project would be a “God-given enhancement to the neighborhood.” Which he then describes as deteriorating, filled with “…miscreants.  And head shops. And tattoo parlors. Broken glass. Piercing shops. Graffiti.” Even…saloons! He then dramatically turns to the audience and says. “Clean it up! Before you tell Chick-Fil-A what to do, clean up your own neighborhood!”

6. It’s now question time from the Board. How many customers will be served?  250-300,000 annually, about 50% of which is drive-through. Why this site? Because it maximizes our investment. Can you survive without a drive-through? We could, but this would not meet our financial expectations. How can you assure us that stacked cars waiting for the drive-through won’t be a nightmare at peak times? Trust us. We are the fastest drive-through in the US and we’ll hire traffic directors at peak times if required.

7. Executive Session. For maybe 30 minutes. Break time. Milling around, some wary hellos between camps, but mainly each sticks to his own.

8. Board returns. They ask the hours of store operation (6AM-10PM M-T; 6AM-11PM F,Sat; closed Sun). They announce the next public hearing is 8:30 AM Friday June 18, Room 215 City Hall. But no more public comments on that date; it’s just deliberation with public observation. One more important item: the board asks City staff to provide updated traffic counts for that intersection by Friday morning. With current budget woes at the City, there are not exactly extra bodies sitting around to count traffic. Here’s wishing staff good luck with this request!

So that’s it for now–stay tuned.

The takeaway? We need a form-based code for this neighborhood (and others)! Pronto. No one wants to sit through this again, trust me.

[thanks to southernpixel for the shot of Frank Fleming’s sculpture at Five Points fountain]

21 responses to “Playing Chicken

  1. (I almost accidentally wrote BP instead of Chick-fil-A–no joke)

    Chick-fil-A seems totally obstinate and completely unwilling to hear the public’s complaints.

    I wonder if the City Council could pass an ordinance that requires fast food restaurants with drive-thrus in the Five Points South neighborhood to have hours of operation on Sunday afternoon.

    • Yes–it was a bit surreal to see the CFA VP stand up and humbly say his company didn’t like to come to neighborhoods where they aren’t wanted. I like your idea about Sunday afternoons–in all honestly, I think it’s a real flaw with this particular business in this location that they are closed on Sundays–not only the day where street traffic is more modest, but a location where lots of visitors/tourists are searching for weekend activity. And they would find a big, empty parking lot and a shuttered business instead. Not very vibrant.

  2. Pingback: Public hearing: Chick-Fil-A appeals DRC decision | The Red Mountain Post

  3. Jeremy,
    This may be the best yet! I believe you; no one should have to sit through this, and folks need to know what people who care (like you) are willing to do for a worthy cause. Interesting: so now they DO already have an urban prototype ready to go? Love XXXXXOOOOOO, Mom

    • Thanks Mom! As far as I know, they are working on the prototype but have not opened one yet, or provided a rendering. I and others find it pretty insulting that the corporation has publicly acknowledged they need a more urban prototype, but yet it can’t recognize this site in Birmingham as urban.

      • Did someone say that they considered the walk-in location on 5th Avenue North to be a “mall prototype” instead of an “urban prototype”? Because it is urban. No drive-through. No parking lot.

  4. Thanks for the well-informed report, Jeremy.

    Do you think the committee is inclined to frame the issue, as Beavers argued, as boiling down to whether the DRC has the authority to interpret the adopted guidelines you mention in addition to zoning law? Or do you see indications that they are expecting to form their own decision about the merits of the proposal?

    • John, honestly it’s hard to say. It almost seemed like they were more concerned with making their own decision. But I am unclear if the City Attorney has given them very specific guidelines or not, which could answer your question. I guess a decision could come as early as the Friday meeting.

      • The way the law is written, the board is empowered to make exceptions to the literal application of the city’s building and land use controls where “special conditions” indicate that “undue hardship” is demonstrated. The board can, by majority vote, grant a “reasonable minimum” variance from any section of the controls, so long as the result preserves the “spirit and intent” of the article “with respect to sanitation, safety, and rehabilitation.” The decision of the Board of Appeals is final.

        A lot of ambiguity there, as the issue of “design guidelines” hadn’t been dreamed up with the law was written.

      • According to Mike Tomberlin’s story, “The board requested from the city updated traffic information for both Highland Avenue and 20th Street South”.

        It sounds like they are either investigating the drive-through as a traffic issue (which isn’t covered by any guidelines I know of) or perhaps just planning to use traffic problems as an excuse to uphold the rejection on grounds other than “design compatibility”.

      • John–thanks, yes I left that one important detail out. I added it to the post. The staff were muttering to me under their breath about trying to get a traffic count in essentially 24 hours!


        Jeremy C. Erdreich, AIA, LEED AP Erdreich Architecture, PC 2332 Second Avenue North Birmingham, AL 35203 tel 205.322.1914 fax 205.322.1925

  5. A very comprehensive synopsis indeed. Thank you for keeping us apprised of the primary details!

  6. Question is: Does the Board answer to the citizens or the code. Either way it goes, this issue has most certainly created the seed that we will sow and cultivate to produce the necesssary form-based code for another of our historic neighborhoods. That is, I hope so!

    • Jim–I am also convinced that the city ordinance, in the form of the Historic Register and Commercial Revitalization documents, is a valid part of the “code” and could override the zoning ordinance if in conflict. The problem is inherent in deciding which ordinance overrides the other. Agreed on sowing the seed!

  7. Thanks, Jeremy. For those of us who wanted to be there, but couldn’t arrange it, this was an excellent play-by-play. I only wish someone in our camp had shamed them by noting that Truett Cathy would, I suspect, have heartily disapproved of this sort of corporate manhandling of communities and neighborhoods.

  8. Jeremy –

    The clause in Birmingham’s current zoning ordinance exempting the city from its own code comes to mind. While the section regarding the B-3 zone, where Five Points South is located, does technically allow drive-throughs, could the DRC not invoke this clause that effectively exempts the city from its own code and use it against Chik-Fil-A to deny the proposal on the grounds of its own city code? This clause, while ambiguous and general, may only apply to city property, but it might be worth investigating to end this farce.

    • Amos–interesting point. I guess an attorney may be able to consider whether this is plausible or not. Regardless of whether the DRC is upheld, everyone is expecting CFA to take this to court. And no one knows how a court would react here, regardless of the methodology cited by this appeals board.

  9. Jeremy, I obviously can’t say (yet) who advised me of where this is headed, but you can easily guess who intimated, out loud, that concerned parties were “quite comfortable” with the idea that this matter will wind up before a judge.
    I understand that notion, but on a practical level, I wonder why anyone would rely on Charlie Beavers to argue anything. I almost laughed at one of his premises, to paraphrase: “the property in question was once an empty lot, before that a convenience store, so if it sucked in the past, then surely this property should suck in the future.” Wow. He’s paid by the hour, I’m told.

    • I would agree that Beavers’ argument that it “sucked before, so what are you complaining about” is weak. And of course he never mentioned that BEFORE the convenience store, it was a gorgeous Victorian mansion…

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