Planners stalled on outdoor dining ordinance

By Lisa Brody

After almost a year of study and discussions, the Birmingham Planning Board failed to come to a consensus on a newly-written ordinance on extended year-round outdoor dining standards at their meeting on Wednesday, May 11, with a motion failing 3-4, and board chair Scott Clein declaring the item closed until it can be brought back.

Of primary issue to some members of the board were disagreements over awnings versus umbrellas; whether and where tables, plantings, heaters and umbrellas on public property should be stored during the months of January, February and March; and if all restaurateurs and other property owners had been personally sent letters alerting them of the public hearing they were having, as only the owner of Commonwealth attended.

Outdoor dining has been in flux in Birmingham since the COVID-19 pandemic began, when on December 7, 2020, the city commission discussed amending the zoning ordinance to consider allowing the enclosure of outdoor dining areas during the winter months. During the pandemic, special ordinance provisions were created to allow enclosures, which were later prohibited when the governor's emergency orders lapsed. The commission then asked the planning board to consider this issue, and any regulations they may recommend should outdoor dining enclosures be permitted. The planning board held almost a year of study sessions on the topic.

The proposed ordinance included provisions that would allow outdoor dining facilities on public property with a valid license upon compliance with all city codes; they must be responsible for all snow and ice removal consistent with the city's DPW standards; all outdoor dining facility elements such as railings, planters, tables, chairs, heaters, umbrellas, and the like must be stored indoors each night between January 1 and March 31 to allow for complete snow and ice removal; outdoor dining in a via or alley is only permitted April 1 through December 31; and an ADA-compliant patio may be built in front of an establishment.

Among the other requirements are that table umbrellas cannot impede sight lines into a retail establishment; obstruct pedestrian flow within the outdoor dining facility; obstruct pedestrian or vehicular traffic flow outside the outdoor dining facility or extend beyond the limits of the facility; or contain signage or advertising.

In addition, fixed or freestanding awnings are not permitted within outdoor dining platforms.

Board member Stuart Jeffares said he was not in favor of umbrellas, and disagreed with fixed or freestanding awnings. He also had issues with the lack of established restaurateurs to be grandfathered in. “Next time they open their SLUPs, they'll have to make changes,” he said.

Board member Janelle Boyce voiced similar concerns.

Jeffares and Boyce, along with board member Bryan Williams, were concerned about possible lack of noticing for the public hearing.

“It doesn't feel right to me to not have people who know exactly what was going or would have been here or would have written letters,” Jeffares said.

Williams concurred. “I'm troubled by our notice provisions. I conclude I'm going to vote no because we should have reached out to every restaurateur over the last year, and we didn't. We need to get this right.

“The timing and urgency to wrap this up because we've been working on this for a year doesn't matter so much at this point in the game because everybody's got their outdoor dining,” said Boyce. “I think if it took us another few months to get this right it would let us do this better and we'd have the opportunity to talk to all these people that it'll affect. I'd like to know how many existing platforms this'll affect, and I'd like to know what we're doing to all these people who've invested tens of thousands of dollars into their platforms. I'm still really uncomfortable with 'fixed or free-standing awnings.'”

“The self-loathing is a little much,” Clein castigated. “We've noticed per our ordinances, these meetings are not held in secret, they've been held monthly for the last 10 months. I understand people are busy, but so are we… Frankly, it's a horrible precedent to say we have to reach out to individual property owners every time a public body wants to look at an ordinance. The moment we don't, we forget somebody – we're headed to court. I'm in support of moving this forward to the city commission with the understanding it's not perfect.

Clein and board members Robin Boyle and Dan Share voted in favor of the ordinance, while Jeffares, Williams, Boyce and board member Bert Koseck voted in opposition, and the motion failed.