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Planners continue work on outdoor dining rules

By Grace Lovins

The Birmingham Planning Board continued revisions of the outdoor dining ordinance proposal during the meeting on Wednesday, September 14, with the board moving closer to a final draft, leaving a grandfathering section for future discussion.

Birminmgham Planning Director Nick Dupuis presented the changes made to the ordinance proposal by staff after the board’s last study session on August 11. The revisions included specifications regarding placement of an outdoor dining facility, a height limit for windbreaks, and a minimum and maximum height for overhead weather protections, like umbrellas and awnings.

The board had minor suggestions for changing the revised sections which boiled down to sentence structure. After a brief discussion over the placement and height specifications, the conversation turned to address the “grandfathering” section of the ordinance.

Grandfathering, or exempting existing businesses from a new law, has raised a lot of concerns from all board members, but since the board has not yet heard an opinion on the language of the section from city attorney Mary Kucharek, they decided against addressing major details or changes.

Board member Stuart Jeffares shared his thoughts on the concept of a potential sunset date which was included in previous drafts of the section, saying he doesn’t feel good about putting businesses into noncompliance by changing the rules and forcing them to adjust to fit the new compliance standards.

“Grandfathering in my mind doesn’t have a sunset [date], essentially saying, ‘You were in conformance, we changed the rules, and everyone else has to come into conformance and if you replace or tear down or whatever, you’ll have to come into conformance,’ but to do it the other way I don’t feel good about it personally,” Jeffares said.

Chairperson Scott Clein responded that the board ultimately has the option to either leave the issue out of the ordinance and in the hands of the city commission, or come up with a solution to mitigate the issue on the board’s level. “I’d prefer not to do anything, but I hate the result that might come from that,” Clein said.

Clein questioned if the board would feel more comfortable without including a grandfathering section in the ordinance, but board member Daniel Share urged that the section should remain. He noted that outdoor dining platforms are removable, not permanent structures, and businesses shouldn’t expect to have the platforms forever.

“I’d like to see uniformity among these platforms. I think that some of the problems that have caused us to want to change the language, if they’re allowed to remain forever, will continue to be problems forever. I think that there’s a fair period, whatever that is, in which people can come into conformity without extraordinary financial burden,” Share said.

Dupuis agreed with Share’s comments, noting that most of the outdoor dining facilities rest on city property, therefore the space is a privilege and not guaranteed.

Ultimately, the board gave Dupuis minor suggestions to revise specific sentences in various sections of the proposal, as well as direction to draft a potential section addressing restrictions to entertainment systems, such as amplified speakers, on outdoor dining platforms due to a public comment about excessive noise. They will also revisit the proposed grandfathering section after Kucharek is able to provide input.


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