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Whistle Stop approved for bistro license

By Kevin Elliott

Breakfast and lunch in Birmingham’s Rail District will soon come with midday cocktails and outdoor eating at the Whistle Stop Diner, as final plans for a bistro license were approved Monday, July 26, by the city commission.

The Whistle Stop has been at 501 S. Eton since 1965, with current owners Elda and Valter Xhomaqi working there for a dozen years before buying the diner in 2012. The couple recently renovated the dining room and expanded the kitchen space, and are adding a patio for outdoor eating. On Monday, July 26, city commissioners approved a special land use permit, final site plans and design review, clearing the way for the couple’s bistro license.

While the approval allows the plans to go forward at full steam, not all commissioners were on board. The commission approved the items 6-1, with commissioner Rackeline Hoff dissenting.

Hoff questioned the location of proposed outdoor patio, which requires the sidewalk to be rerouted closer to the street.

“Would you consider making that outdoor eating area any smaller?” Hoff asked the applicants. “That sidewalk next to the curb is so narrow that if someone is coming with a stroller, people coming toward them have to wait at the end of the outdoor patio to get by. That patio is going to stop people from passing each other there, and it’s right next to the street.”

Attorney Patrick Howe, who represented the owners, said the six-foot pathway is standard size and approved by the engineering department.

“I understand your concern, but we want to make this as vibrant as possible, and cutting back the patio would make it a smaller gathering,” he said. “I ask that you allow us to keep the plan approved by the engineering department, and the sidewalk that is consistent with other similar areas in the city.”

Commissioners also voiced concerns about parking in the area, and whether the hours of operation – which do not include dinner – meets the spirit of the bistro ordinance.

Under the city’s bistro license application process, the city may approve two new bistro licenses each year for restaurants in existence for more than five years, in addition to two new restaurants.

Commissioner Stuart Sherman said bistros are typically open for dinner, and that the commission had rejected another breakfeast/brunch application for a bistro license, based on the hours of operation. By approving Whistle Stop’s application, he questioned whether the commission would be setting a precedent for others to apply.

Commissioner Mark Nickita agreed.

“Having helped to establish the goals of the bistro ordinance, I think one of the primary goals was that to allow something as important as a liquor license to be applied to a business was the idea of activating a particular area or street. The idea of that activation wasn’t to have it open a few hours a day. It was very evident that we intended the value of a liquor license to be somewhat utilized to the point where it’s actually an asset to that particular area,” he said.

Nickita, however, added the longstanding history of the restaurant and hours makes the situation unique.

“If this could be differentiated enough for having a longstanding, differentiating circumstance that would be distinctive enough to hold its own circumstance and not have precedent for a new bistro,” Nickita said. “It does have a longstanding history of being only a daytime environment, no evening environment. If we approve this with this circumstance, it wouldn’t necessarily set a precedent because it’s so distinctive to this history that really it’s a one-off. So, the next place that comes in and wants to be a lunch-brunch place, we can clearly say that’s not the intention of this ordinance, and that this allowance is distinctive and not applicable. I put that out to hear from the attorney.”

Commissioner Therese Longe said adding evening hours in the area could lead to issues with parking and noise in the surrounding neighborhoods, as it would be a disruption to the existing operation.

The city attorney and commission members concurred that allowing Whistle Stop to gain a bistro license wouldn’t be a precedent for other similar operations.

While Sherman said he was satisfied with the hours of operation, he paused the issue to discuss parking.

“The residents have come before this commission with concerns about parking,” Sherman said. “The applicants are requesting a benefit from us in the form of a liquor license pursuant to the SLUP. That’s an opportunity to look at it new and make sure all the issues are addressed before. You can’t do it after.”

Howe said while parking is an issue throughout the city, the expansion of the diner would actually reduce the interior seating from 80 to 64, with a maximum of 92 seats including the outdoor seating. Therefore, he said there is only an additional 12 seats, and fewer in the off-season.

“This is for five new drinks on the menu,” Howe said. “That patio is being opened either way. They are going to operate it generally the same way as it has since 1965.”


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