Outdoor dining ordinance stalled by commission

By Grace Lovins

Birmingham city commissioners reviewed a draft of the city’s new outdoor dining ordinance at their meeting on Monday, February 13, voting to postpone a decision until later in the month so city staff can make requested changes.

The city has been working on the ordinance draft for nearly three years in the wake of the COVID-19 pandemic, with the planning board holding three public hearings throughout 2022 on multiple drafts. On December 14 of last year, the planning board moved forward with recommending approval of the draft to the city commission.

One of the major topics of debate was the inclusion of a sunset clause within the ordinance that would require nonconforming outdoor dining facilities to come into compliance with the new ordinance by a fixed date. The planning board debated whether the provision should be included, eventually coming to the consensus that it should be removed from the draft.

During the December planning board meeting, multiple board members stated they were uncomfortable moving forward with a sunset provision for various reasons, one of the big ones being that if all bistros need to come into compliance at one date, the board could potentially review a dozen bistros at once. Many members also felt that it was unfair to force facilities into compliance when restaurateurs have financially invested in a facility that meets the current standards.

City attorney Mary Kucharek offered her insight into the provision, reiterating the direction she gave the planning board while they debated the inclusion of a sunset clause.

“Having either a sunset or amortization is the way to go because it’s consistent. Everyone knows it’s coming and can plan for it, and we get away from some of this esoteric ‘what is renovate, replace?’ It would be consistent. Everyone would be treated the same, and it would be from this date to whatever date,” Kucharek said.

After Kucharek’s explanation, commissioner Clinton Baller posed the question to the commission about what the goal is with an amortization clause.

“What do we want? Do we want to be liberal, for lack of a better word, and allow this to occur or are we erring on the side of allowing these nonconforming uses to go on? Or do we want the letter of the law to be followed so that we can as quickly as possible eliminate some of the nonconformities?” Baller said.

Debate between the commission shifted, analyzing specific language throughout the ordinance. Baller pointed out that the language of section B4 says owners must bring everything in at night during the winter for snow removal, but noted it is also written that the property owner is responsible for snow removal. Commissioners and staff decided to remove the requirement that everything from the facility must be brought in each night between January and March.

Ultimately, the commission directed city staff to: include a sunset or amortization schedule that would be no less than three years from the first date of application; remove the two current subsections under the ‘Nonconforming Outdoor Dining Facilities’ section; remove the requirement that all outdoor dining facility elements be brought indoors at night between January and March for snow and ice removal; include additional language in the criteria for reviewing outdoor dining facilities that addresses utilities; and include language in the section addressing portable heating elements that says “inspections shall include but are not limited to…”

Commissioners voted unanimously, 6-0, directing staff to make the appropriate changes and to postpone a decision to adopt the ordinance until the meeting on Monday, February 27. Commissioner Pierre Boutros was absent from the meeting.