Planners continue work on outdoor dining rules

By Grace Lovins

Birmingham Planning Board members continued to work on revisions to the city's outdoor dining ordinance with another study session on Wednesday, August 11, and while it marked their eleventh study session on the ordinance, concerns still remain amongst the board over ordinance language.

After the board’s previous study session on July 13, Birmingham Planning Director Nick Dupuis presented the most recent changes based on the board’s discussion. The changes included additional elements to be considered for an outdoor dining facility, such as valet parking and adjacent outdoor dining facilities; regulation on the material composition of the facility, fixtures and furnishings; and restrictions placed on the height of overhead weather protection, such as awnings and umbrellas.

Board member Janelle Boyce was concerned over the specified measurements of overhead weather protection as well as barriers for outdoor dining facilities. Boyce reflected on a conversation she had with a local business owner who is facing issues with his awning height and fire code compliance.

“We could, dependent on the storefront and the height of the glass or the situation that it’s up against, we could have occasions where it might make sense to give us a little bit of flexibility within the language to be able to deviate from the eight to 10 [foot height requirements] in the event that someone has a situation where eight to 10 feet doesn’t fit up with how they’ll have to provide the [dry fire] suppression,” Boyce stated.

Chairperson Scott Clein, reflecting on Boyce’s comments, stated that he is concerned that if changes similar to what Boyce is recommending are continuously added to the ordinance, every single review is going to be different. Clein noted his concern with the height of overhead weather protection is specifically related to outdoor dining decks on the street.

Clein proposed adding a specification to that particular section of the ordinance to note it was specific to outdoor dining decks on the street, which all other board members agreed to.

In addition to the measurements of overhead weather protection, Boyce expressed concern over the specified height of barriers which define outdoor dining spaces. “I think that 42 inches for a barrier is too high. Forty-two inches is the height of a bar. You won’t even be able to see over a barrier 42 inches high when you’re seated,” Boyce said.

Both Clein and Dupuis explained that the existing height specification for barriers is currently 42 inches, and that 42 inches is what is required for platforms in the street. Boyce replied to Clein and Dupuis that the intention is not to encourage solid walls around outdoor dining platforms where you can’t see in or out. Boyce’s concerns also carried over to the indicated height requirements of windbreaks, which are currently required to not exceed 60 inches from the grade.

The windbreak requirement, at five-feet, is too tall, according to Boyce, and a more appropriate measure would be 42 inches. Replying to Boyce’s comments, alternate board member Jason Emerine, filling the spot of board member Bert Kosek during the meeting, asked about Occupational Safety and Health Administration (OSHA) height requirements for fall protection.

“On any of these decks is there a fall protection scenario? I know the platforms are level with the sidewalk, but is there anywhere where you might fall off? The reason I ask is because OSHA is going to require 42-inch railing for any servers if that ledge is high,” Emerine stated.

Clein, Williams and Boyce agreed to leave the maximum height of barriers at 42 inches following Emerine’s comment. After further discussion, board members agreed to change the ordinance draft to state that temporary windbreaks cannot exceed 42 inches. Clein noted that “temporary” is included because windbreaks are considered an additional element.

The board revisited the regulations surrounding the grandfathering of noncompliant outdoor dining facilities. After the board’s July study session, Dupuis noted three additions to the ‘grandfathering’ section: A sunset date that requires outdoor dining facilities to become compliant after December 31, 2027; a non-conforming facility should be brought into compliance at the time of replacement, moving or renovation; and a facility that is destroyed must be brought to compliance when repaired, reconstructed or replaced.

Multiple members of the board expressed their concerns over the section’s language, particularly in using the term ‘grandfathering’ as it reflects permanency, which is not the intention of the ordinance.

“I’m uncomfortable with the use of the term 'grandfathering.' That’s a zoning term of art that I don’t think applies here. I think the heading is something more like ‘limited continuation of outdoor dining facilities,’ but that’s really for the city attorney and [Dupuis] to discuss. You don’t want to create an expectation for applicants, their attorneys, or judges that we are creating a grandfathered situation which is a near-permanent right to continue,” said board member Daniel Share.

Clein, Share and board member Bryan Williams felt that the discussion on outdoor dining should continue after the city attorney, Mary Kucharek, has reviewed the ordinance draft as well as formulation of the language for the ‘grandfathering’ section that the city commission would be comfortable with.