Birmingham zoning board deadlocks on variance for 400 Westchester pergola

The Birmingham Board of Zoning Appeals on the evening considered an appeal by the owners of 400 Westchester Way seeking a dimensional variance to allow an already-constructed open-air pergola and attached TV wall that would increase the lot’s coverage above the 30% cap. The board did not secure the four affirmative votes required for a dimensional variance, so the appeal was not approved.

City presenter Andrew Ericson told the board the lot’s existing coverage was 34.10% (2,367 sq ft) and that the proposed additions would raise that figure to about 37.33%, generating a requested variance that the applicant described as a relatively small percentage increase. Attorney Trey Bryce, representing Adam and Marissa Wolf, said the pergola is an open-air lattice and argued it creates a minimal impervious footprint and no stormwater or safety harms: “It’s an open air lattice ... it doesn’t increase the impervious surface to the ground. It doesn’t alter the drainage,” Bryce said.

During questioning, board members pressed whether components such as the TV wall or connected vertical slats should be classified as a structure and whether removing elements would reduce the needed variance. Staff replied that the TV wall is treated as a structure for coverage calculations and that some design changes could reduce the requested relief.

Multiple neighbors who live nearby spoke in support. Timothy Murphy, who said he lives three streets west, told the board, “I support the Wolves ... I’m not hearing impaired sight lines or flooding concerns.” Neighbor Jason Tam, two houses down, said afternoon sun makes yards “almost unusable” and he supports a trellis system to improve livability. Cody Williams, adjacent to the property, told the board the project “does nothing but add to the value of the neighborhood.”

A board member moved to deny the variance, citing a lack of demonstrated hardship and concern about inconsistent treatment of trellises and similar structures in past cases. That motion resulted in a 3–3 tie and failed. A later motion to approve the variance and tie the approval to submitted plans also failed to reach four affirmative votes. Because dimensional variances require four of six votes, neither motion produced approval.

The board told the applicant and city staff to work together on possible revisions or to identify whether the applicant can return with a materially different proposal. The appeal remains unresolved pending any follow-up filings or modifications requested by the city.