Council amends outdoor display ordinance
It has been more than 1-1/2 years since a Town code enforcement sweep of businesses with outdoor display of merchandise within the downtown zoning district revealed many merchants did not have required permits and thus were issued notices of violations.
That action caused many merchants to come forward and request changes to outdoor display regulations that were called too stringent. Noodle counting was an example of how strict the code was interpreted.
On Monday evening, Council passed an ordinance amending “definitions” to language involving “enclosed merchandise area”, “patio” and “porch;” deleting and revising various requirements relating to size and location of outdoor display items; providing regulations for enclosed merchandise areas; revising requirements for porches and patios utilized for outdoor display; and by providing regulations relating to existing nonconforming outdoor display businesses. New codes also discourage retail displays in Town right-of-ways and will not allow vending carts.
“I’m really happy we cleaned up the code,” said Vice Mayor Dan Andre, who was instrumental in making regulations more government-lite.
After many reviews since early 2103 to create a new ordinance by amending the established 2003 ordinance through Council work sessions and community “working group” workshops, the passing of the document to tighten language to help regulate Beach merchants and their product in the open air was not as swift as it appeared it would be.
Councilwoman Rexann Hosafros noticed that a section on vending carts was still within the proposed document. Even though the carts were prohibited as “free standing” moving forward, the language could complicate matters.
“I think that whole section needs to be stricken because we are no longer allowing vending carts anywhere,” she said. “It’s actually confusing because its says ‘vending carts may be left outside when a business is closed.’ That implies that we are allowing them, yet elsewhere in the chart we aren’t allowing them. I think it’s just a clerical error, and it needs to be eliminated.”
Councilman Alan Mandel argued that vending carts should be allowed on a porch.
“I think (they) should be allowed on a porch like a clothing rack. It’s a display fixture,” he said.
Hosafros countered that allowing such a provision would change the meaning and thus open up the whole ordinance to possible unwelcome repercussions.
“When you start making substantive changes, they have unintended consequences elsewhere,” she said. “Let’s get it passed the way it was written. If you want to make amendments about vending carts later, do it.”
After more debate, Town Attorney Derek Rooney asked Council to table the hearing and craft different language while Council moved on in its agenda. The proposed amended language by the attorney was still not an effective result for Hosafros. Changes to the proposed ordinance within a public hearing was not deemed as the correct protocol.
“I don’t like to re-write a statute in the middle of a hearing and five minutes before a vote,” she said.
Eventually, the ordinance with changes prior to the meeting was adopted. Mandel dissented from the approval.
While new codes for outdoor display was good for some retailers, Mayor Anita Cereceda, who abstained in the voting process due to owning two merchandise shops in Times Square, called her business “prejudice” by the ordinance since she followed the rules of the 2003 ordinance on the issue by not displaying outdoor merchandise within her patio area and will not be “grandfathered” with the revised ordinance.
“This ordinance was re-written as a reaction to a code enforcement issue. There were violations of our existing code that brought a group of people together to re-write this ordinance so that they would not be in violation of the code,” she said. “Had I, as a business owner, been in violation of the code, I would be a nonconforming person who got ‘grandfathered’ in because the changes in this code. But, I was not. My businesses have never been in violation of the existing code. Now, I wish I had been, because I will be a business in Times Square that will not be allowed to have outdoor display of merchandise because I followed the rules. That angers me.”
Cereceda suggested that Council review the overlay of design guidelines for the downtown zoning district in the near future.
“Now, any retailer who is building a business will build a business with outside space to comply with this ordinance,” she reasoned.