The Odeon’s unenclosed sidewalk cafe, 145 W. Broadway, Manhattan. Image Credit: CityLand.
Community boards fight City Council on shortened sidewalk cafe review period. On May 7, 2013, the City Council’s Committee on Consumer Affairs held a joint hearing with the Land Use Zoning & Franchises Subcommittee to discuss proposed amendments to sidewalk cafe regulations. Introductions 875-2012, 876-A-2012, and 1039-2013 seek to expand sidewalk cafe hours and streamline the sidewalk cafe licensing and registration process.
Sidewalk cafes are licensed and monitored by the City’s Department of Consumer Affairs. In order to operate a sidewalk cafe, owners must first submit various documentation and fees to the DCA. Certain public safety regulations must be met and documented at this time, such as whether the proposed cafe will be on a sidewalk that is at least 12 feet wide. Applicants go through a multi-step approval and review process in order to be granted a revocable consent before a sidewalk cafe license will be issued. DCA controls and facilitates the process, sending the revocable consent petition to various City entities for discrete review periods. The petition is first sent to the City’s Department of City Planning, Department of Environmental Protection, and the Landmarks Preservation Commission (if applicable). From there, the petition is sent to the local community board, then back to DCA, and then on to the City Council. Each entity is entitled to hold its own public hearing on the petition and recommend approval, approval with modifications, or denial. Finally, the petition is sent to the Mayor’s Office of Contract Services for review and approval. When a revocable consent is granted, DCA will issue the sidewalk cafe a license to operate.
The sidewalk cafe license renewal process is similar to the new application process. Both the license and the revocable consent expire every two years. While the revocable consent renewal goes through review, DCA will issue the sidewalk cafe owner a temporary operating letter in lieu of a license until the revocable consent is granted. Sidewalk cafes that operate without a license or temporary operating letter or in violation of the revocable consent terms may be fined or eventually sealed by DCA.
Introduction 875, proposed by Council Member Daniel R. Garodnick, Council District 4 (Manhattan), would allow sidewalk cafes to open and operate on Sundays starting at 10:00 A.M. The current law prohibits sidewalk cafes from operating before noon on Sundays.
Introduction 876-A, also proposed by Council Member Garodnick, would clarify and stagger the timeframe in which licenses and revocable consents are renewed. The bill would set a two-year term for licenses and a term of no less than four years for revocable consents. Additionally, a revocable consent expiration could not be dated earlier than six months after a license expiration date. The purpose is to ensure that the two renewals needed to continue operation of a sidewalk cafe do not create a burden on applicants with overlapping processes. The City Council noted that because DCA will not issue a license renewal until the revocable consent is granted, some sidewalk cafe owners have been fined for operating without a license while the revocable consent petition is in review. Therefore, the bill would ensure that a sidewalk cafe owner is not treated as an unlicensed operation during the revocable consent review process if the applicant has submitted a complete petition to renew, the owner previously held a valid license to operate, and the owner is in compliance with the terms and conditions of the previous revocable consent.
Introduction 1039, proposed by Council Member Diana Reyna, Council District 34 (Brooklyn/Queens), would seek to make the revocable consent process more efficient. Currently, the local community board has 45 days in which to hold a hearing and approve, disapprove, or offer a modified approval of a revocable consent. The bill would reduce that time period to 30 days. If the community board does not take action on the application within the 30 day period, the bill would deem such inaction as a waiver of the community board’s option to hold a hearing and give a recommendation. The bill would also reduce DCA’s time period in which to decide whether to hold a hearing from 45 to 30 days. The bill would permit DCA to waive its hearing option and if that waiver is exercised, DCA would have 10 days to submit the application to the City Council for its review. If the waiver is not exercised, DCA would have the option of extending its review to 60 days upon notification to the applicant. Finally, the bill would permit the mayor’s office to waive its approval process if it determines that mayoral approval is unnecessary.
At the May 7, 2013 hearing on the proposed legislation, Fran Freedman, deputy commissioner of DCA testified that DCA is opposed to the provision of Intro. 876-A that would stagger the expiration of the license and revocable consent. She said that DCA supported a four year term on revocable consents but that separate expiration dates would lead to confusion for sidewalk cafe owners. She also testified that DCA would be forced to issue licenses without the pertinent information uncovered by the revocable consent process. Representatives of multiple community boards testified in opposition to the reduction of the community board’s 45 day review process and the community board waiver provision. Bob Gormley of Manhattan Community Board 2 testified that community boards meet on a monthly basis and that if community boards are given only 30 days to review applications, some applications would fall outside of the timeframe for those meetings. He said that the bill would undermine the public review process because those applications that the community board cannot calendar within 30 days would be automatically approved without going through the community board’s review. Six other community boards, including Brooklyn Community Board 14, Manhattan Community Boards 1, 2, 3, 4 and 6, as well as Manhattan Borough President Scott M. Stringer agreed with Gormley’s testimony. Nancy Ploeger, President of the Manhattan Chamber of Commerce, testified in support of all three bills.
Council Member Reyna expressed her concern over the lengthy application process and explained that her bill targets inefficiency, “Despite unanimous community support, a sidewalk cafe application can take a minimum of 70 to 100 days for approval.” Council Member Garodnick, who chairs the Committee on Consumer Affairs, noted that the proposed legislation would need to both address the cumbersome application process and the importance of the community board’s review. He stated, “In fact, it’s become very clear in the course of this hearing that the community board is, perhaps, one of if not the most central actor in the scrutiny and consideration of … sidewalk cafes.” He then closed the hearing without taking a vote on the bills.
Update (6/28/12): Intro. 875-2012, which will allow restaurants to open at 10AM on Sundays, was passed by the City Council on June 26, 2013.
Council: Intro. 875-2012 (May 7, 2013); Intro. 876-2012 Version: A (May 7, 2013); Intro. 1039-2013 (May 7, 2013).