2020.06.03 Council Agenda Item 1

Summary

Emergency ordinance to temporarily suspend certain provisions of the Falmouth Code of Ordinances relating to outdoor eating areas and outdoor retail display to assist businesses suffering economic loss due to COVID-19 in a manner consistent with the Governor's re-opening plan.

A public comment period will be included with this item.

ACTION: Council action is anticipated.

Description

The COVID-19 pandemic has created challenges for many businesses trying to safely re-open, or continue operating, under various governmental restrictions imposed to protect public health and safety. Although the State of Maine is gradually continuing to reopen its economy in the weeks and months ahead, it is anticipated that many of these health and safety restrictions will remain in place. This includes social distancing restrictions that, in many instances, limit the ability and capacity of businesses to serve customers safely.  

In recognition of these challenges, many municipalities across the country either have adopted, or are considering adopting, temporary and/or emergency ordinances that provide businesses, such as restaurants and retail stores, with short-term, temporary flexibility to conduct business activities outdoors, often on areas of a site not customarily used for businesses activities, in a way that can safely accommodate social distancing requirements. This temporary flexibility is often contemplated in the form of expedited permitting processes, relaxation of regulatory standards, or some combination of the two.  Councilor Kuhn is proposing that the Town of Falmouth, similarly, give consideration to providing some measure of temporary, short-term flexibility for businesses. Accordingly, a draft emergency ordinance has been prepared for the Council’s consideration. The Council discussed, and accepted public comment on, this emergency ordinance at its May 27 Council meeting.

The draft ordinance provides for an expedited staff-level permitting process for the temporary establishment of outdoor eating areas and outdoor retail display areas.  These land use activities, in most instances, require Planning Board Site Plan Review and, in the instance of outdoor eating areas (and except for the VC1, VC2, and Tidewater Districts), also require Conditional Use Review by the Board of Zoning Appeals.  The draft ordinance would temporarily suspend the requirement for these two business activities to have to be permitted by the BZA and/or the Planning Board and, instead, would allow these activities to be temporarily permitted under one, consolidated staff-level review process.

In addition to providing an expedited review process for these temporary outdoor activities, the draft ordinance also provides for a relaxation of regulatory standards otherwise required as part of a Conditional Use or Site Plan application. In lieu of the prescriptive standards typically required, this draft ordinance would allow these outdoor business activities to be temporarily permitted under flexible standards that address core safety issues in a manner that requires less time for applicants to prepare applications, fewer short-term soft costs for applicants, and fewer long-term costs for site improvements. This is out of a recognition that these outdoor activities would only be permitted on a temporary basis with the Council maintaining the ability to repeal the emergency ordinance at any time.

Per Section 213.1 of the Town Charter, emergency ordinances may be adopted with or without amendment in one Council meeting with the affirmative vote of at least five councilors. In this instance, since this draft ordinance would amend, temporarily, certain zoning provisions, a Planning Board MRA hearing is required prior to the Council’s adoption of the ordinance.  That MRA hearing is currently scheduled for June 2. The Town Council could take action on the emergency ordinance anytime after the Planning Board’s MRA hearing.

Unless otherwise re-enacted/extended, the emergency ordinance, and any temporary approvals that may be granted under the ordinance, will automatically expire on July 22, 2020 or at such time as the ordinance may be repealed by the Council, whichever occurs first. The Council may, at any time, vote to re-enact the emergency ordinance, amend the emergency ordinance and any of its provisions, or repeal the ordinance. Because the Council may take these actions in one meeting, the Council is able to be responsive in amending the ordinance as may be warranted to address concerns that may arise.

Attached please find a Council introduction letter, a redlined copy of the emergency ordinance incorporating changes discussed at the 5/27/20 Council meeting and changes requested by Councilor Trickett, and a clean version of the revised proposed ordinance.