Planners set public hearing for outdoor dining

By Grace Lovins

The Birmingham Planning Board continued to work on its draft of the new outdoor dining ordinance at their meeting on Wednesday, November 9, concluding a 14th study session by setting a public hearing for the board’s next meeting on Wednesday, December 14.

Planners have been working on the ordinance since December 2020, marking nearly two years of study sessions and drafting. Most board members agreed that the draft is ready for a public hearing following a couple changes. Planning director Nick Dupuis explained the updates to the draft following the previous study session on Wednesday, September 14, which included height requirements of overhead weather protection and a revamp of the grandfathering section.

The bulk of the study session focused on the grandfathering section, which had left the board weary over the past few meetings. Previously, planners expressed concern over the language used in the section, specifically the term “grandfathering” that some felt was inappropriate given the permanency grandfathering entails. Dupuis noted that, after reviewing the ordinance with city attorney Mary Kucharek, the term was removed completely and replaced with “nonconforming outdoor dining facilities.”

Dupuis also added that a subpoint of the section, which included a sunset date for compliance, was changed to apply only to outdoor dining facilities on public property. Kucharek was able to provide insight into the legal aspect of the point and explained to the board that the city has limited rights to limit facilities on private property, but businesses on public property do not enjoy the same property rights as private owners.

Bryan Williams, the acting chairperson for the meeting, repeated a past concern over the sunset date set for December of 2028 – if all the bistros need to come into compliance after one date, the board is going to potentially need tp review a dozen bistros at once. Kucharek affirmed that a fixed date is far more equitable than Williams' proposal to change from a fixed date to a 10-year period from the date the special land use permit was initially granted. Williams changed his position to say that, if that’s the case, he feels 2028 is too soon.

Board member Stuart Jeffares remained adamant throughout the session that he feels a sunset clause is unfair to the restauranteurs who have helped make the city livelier.

“One of the things that causes all of us to have an increased property value over bedroom communities around us is that fact that we have got a huge number of people who hang it out on the line and risk considerable sums to do these incredible businesses that give us life in our town,” Jeffares said.

Kucharek reminded the board that the ordinance will apply only to public property, where business owners are given the privilege as a favor from the city to use public property to further their business. She also stated it’s clear in current special use land permits that the business will have to comply with an ordinance, whether it is a new ordinance or amended ordinance.

Two local restauranteurs and two individuals representing multiple restaurant owners in the city spoke to the board, each expressing concern over the idea of a sunset date. Williams, Bert Koseck and Janelle Boyce leaned towards agreement with Jeffares saying that a sunset date would raise challenges for existing business owners who modeled their restaurants around the current ordinance. Daniel Share reminded planners that the goal is to achieve uniformity among outdoor dining platforms, and restaurateurs aren’t the only factor in this decision. Uniformity is for the benefit of the residents, downtown and other merchants too, according to Share.

After much back and forth between board members, Boyce, Jeffares and Williams all agreed that they would be more comfortable sending the ordinance draft to a public hearing if the sunset date was completely removed from the proposal.

Planners voted 6-1 to set a public hearing for the draft of the ordinance excluding the sunset date, with board member Daniel Share voting against the motion. Alternate board member Nasseem Ramin, acting as a regular member, voted in place of chairperson Scott Clein who was absent.