City Council Holds First Hearing on Permanent Open Restaurants Plan

Many elected officials raised concerns about DOT’s ability to handle the scale and capacity of a citywide permanent open restaurants program. On February 8, 2022, the City Council Subcommittee on Zoning and Franchises held a joint hearing with the Committee on Consumer and Worker Protection on the proposed permanent open restaurant program. The proposed permanent open restaurant program will replace the temporary program and establish a new streamlined program for the creation, management and enforcement of sidewalk and roadway cafes operated by the Department of Transportation.  As of the writing of this article, 12,133 restaurants and cafes are participating in the temporary open restaurant program, which is set to expire at the end of 2022. For CityLand’s prior coverage of the permanent open restaurants program approval process, click here.

To establish a permanent open restaurants program, several legislative and administrative changes would need to occur. First, a zoning text amendment that eliminates certain restrictions on where sidewalk cafes can be located needs to be approved. Last November, the City Planning Commission voted to approve this text amendment, and now the amendment needs the approval of the City Council. 

Next, the City Council would need to pass legislation that would repeal the Department of Consumer and Worker Protection’s authority over sidewalk cafes and authorize the Department of Transportation to establish a permanent program. Once the City Council approves the program, the Department of Transportation and other relevant agencies would need to establish administrative rules about the program, which would also be subject to a public comment process. 

Simultaneously, the Department of Transportation and other relevant agencies are continuing to seek feedback regarding design guidelines for the permanent open restaurant program. For more information, click here. 

The Hearing

Tuesday’s hearing addressed both the zoning text amendment and the pre-introduction of the City Council’s bill, which is sponsored by Council Member Marjorie Velázquez, the Chair of the Committee of Consumer and Worker Protection. The hearing lasted approximately nine hours, with over 250 people signed up to testify. 

The hearing began with comments from Council Member Velázquez, Council Member Rafael Salamanca, Chair of the Land Use Committee, and Council Member Kevin Riley, Chair of the Subcommittee on Zoning and Franchises. All three shared similar sentiments, praising the temporary open restaurants program for saving restaurants and jobs, but also shared similar concerns about enforcement of sanitation, noise, and other quality of life issues. 

During the hearing, DOT Commissioner Ydanis Rodriguez and other DOT staff presented more details about the operation of the permanent open restaurant program. All restaurants will be required to reapply for the permanent program, with new applications facing a $1,050 fee. Renewals will cost $525. Both sidewalk and roadway cafes will be operating on revocable consent, which will have a separate fee structure which has yet to be determined by DOT but will be based on the location of the restaurant, and size of the space the restaurant will be using. According to DOT, the new fees will be cheaper than the current cost of applying for sidewalk cafes. The fees will be used to cover the administrative costs of the program, including the hiring of full time staff to handle the operations of the program. 

Community boards will have their usual review of sidewalk cafes, but will only receive notice about applications for roadway cafes. Roadway cafes will be subject to a revocable consent public hearing, but community board hearings are not required. The expected review time is five months for sidewalk cafes, and four months for roadway cafes. 

Questions from the City Council 

Council members shared several common concerns. Many voiced concerns about how the program has been currently implemented in their districts with quality of life issues including sanitation, rodents and noise, and shared concerns about DOT’s ability to handle the scale and capacity of this program when other agencies have more experience. Commissioner Rodriguez responded that the agency was in the process of hiring new full time staff for this program, including inspectors who can help with enforcement, and that DOT had successfully handled the temporary program, which had resulted in the preservation of 100,000 jobs. According to DOT, 22 restaurants had received fines up to $1000, 40 sidewalk sheds had been removed, and 4,292 cease and desist warnings had been issued.

Several council members had complaints about the enclosed sidewalk sheds. Council Member Chi Ossé raised safety concerns with dark, enclosed structures and questioned how lighting would be implemented. Council Member Kalman Yeger criticized the amount of space sidewalk sheds occupied, and how many had been abandoned or unused but still remained standing. Council Member Sandy Nurse asked if the dining structures would be standardized and require a subfloor to eliminate nesting space for rats. In response to these concerns, DOT staff stated the enclosed sidewalk sheds will not be an option for the roadway cafes, which would shift to set ups involving chairs, tables and umbrellas. Changing to these types of set-ups would allow for easier movement to repave streets or access utilities. 

Several council members criticized the “one size fits all” approach of establishing a citywide program when New York City neighborhoods are so different. Council Members Christopher Marte and Erik Bottcher, who represent Districts 1 and 3 in Manhattan respectively, discussed how their districts feature some of the highest concentration of restaurants citywide, that outdoor dining had worked in some places and not others and how each neighborhood should be assessed based on its own conditions. Commissioner Rodriguez responded that by creating a unified program they are allowing all restaurants an equal playing field for access to outdoor dining. 

Other council members had concerns about the specifics of the program. Council Member Julie Menin, the former Commissioner of the Department of Consumer Affairs, questioned the effectiveness and fairness of revocable consent fees as in her experience they were very bureaucratically administered, preferring a fee structure that does not disproportionately impact the smallest of businesses. According to DOT, the Law Department had advised DOT to use a revocable consent structure for the roadway cafe program. 

Multiple council members were concerned that the review process was too speedy to allow community boards and the public a proper chance to review each application. Council Member David Carr questioned why roadway cafes did not have the same approval process as sidewalk cafes, given a greater risk of danger since these cafes are in the street. Commissioner Rodriguez replied that as the roadway cafe approval process still requires a public hearing for the revocable consent, and that community boards would be given notice and could hold their own public hearings. Council Member Gale Brewer pointed out that community boards do not meet over the summer, and often ask that applications be postponed until September, posing issues with processing and review times. 

Several council members were uncomfortable with the thought of approving a program that does not have established administrative rules for operation, enforcement, penalties and other factors. Council Member Brewer asked how training would be handled between agencies and who would respond outside of typical business hours to things like noise complaints. Council Member Amanda Farías asked who would be responsible to maintain sidewalks with the additional weight of furniture. Commissioner Rodriguez assured the council members that DOT was coordinating with several different agencies including NYPD, DSNY, and the Fire Department to work on enforcement and education. Other relevant agencies would include the Department of Environmental Protection, the State Liquor Authority, and the Department of Health.

Council Member Lynn Schulman asked about accessibility concerns in the design of outdoor dining set-ups for people with disabilities. Council Member Velázquez asked when the Council could expect to see design guidelines and administrative rules. According to DOT, draft design guidelines would be expected in March. 

Public Testimony

Some members of the public spoke in support of the program, discussing the positive impact the open restaurants program has had on saving the hospitality industry.

Andrew Rigie, Executive Director of the NYC Hospitality Alliance supported the passage of the program and stated, “The permanent open restaurants program must be standardized, sustainable, and equitable, with clear and easy to follow guidelines and reasonable fees to participate. It should address issues important to the community such as accessibility, aesthetics, cleanliness, sound, parking . . . and the interaction of sidewalk and roadway dining with other uses of public space.” He asked that revocable consent for outdoor dining be removed as other commercial uses like newsstands or mobile vendors only require a license. 

Other restaurant owners, operators and industry advocates testified that they hear the concerns about quality of life issues and are willing to do what they can to be good neighbors to keep outdoor dining available. Several members of the public testified that they supported the program because outdoor dining provides people with disabilities, who can find indoor dining inaccessible, the opportunity to enjoy dining out. These members of the public also asked that accessibility of the street and accessibility of the outdoor dining structures themselves be considered when establishing design guidelines. 

Other members of the public testified in opposition to the program, many echoing the Council Members’ quality of life concerns. 

Representatives from Manhattan Community Board 2 testified that DOT has not kept up with enforcement of complaints, and expressed concerns that there would not be enough time for community boards to review the influx of applications. They also expressed that residents would like their streets to provide open space, bike lanes, and other uses beyond roadway dining. 

Josephine Beckman, District Manager of Brooklyn Community Board 10, emphasized that while the community board supported the temporary extension of the program, they opposed the zoning text amendment, and she expressed concerns about how the permanent program was moving forward at a rapid pace. 

Susan Stetzer, District Manager of Manhattan Community Board 3, testified that the current zoning does not permit any sidewalk cafes in her district, and the large number of restaurants in the area result in long rows of sheds that darken the street and create a lot of noise and trash. She said that they had 6,165 noise complaints in the district, and to not have community boards review roadway cafes was out of line with other land use applications. 

Other members of the public against the program proposed alternative uses for the streetscape that benefit the whole public than turning it over to the use of one private industry. Some felt that the needs and wants of community members were being ignored over what restaurants wanted.

Both the zoning text amendment and the Council bill will be voted on at a later date. 

By: Veronica Rose (Veronica is the CityLaw fellow and a New York Law School graduate, Class of 2018.)