Last month, New York City Mayor Eric Adams brought a sledgehammer to an abandoned outdoor dining shed in Manhattan. The move was a demonstration of how the city will deal with derelict buildings and an opportunity to unequivocally announce that the administration is fully behind making the Open Restaurants program permanent.
To achieve this, however, Adams and the City Council will need to use much finer tools.
New York City’s Open Restaurants program has been operating intermittently since 2020, under a constantly renewed emergency regulation citing the need to keep restaurants and bars operating while enforcing safe social distancing during the COVID-19 pandemic enable. While Gov. Kathy Hochul is phasing out the COVID-19 statewide emergency, the Adams administration said its temporary program will continue until a permanent program is in place. “The expiration of the governor’s emergency executive order will not affect the Open Restaurants program or any other emergency executive order issued by the city,” a city hall spokesman wrote in an email.
The New York City Department of Transportation — which the Adams administration would like to see in charge of the permanent Open Restaurants program — has set a target date of 2023 for the program’s implementation, including an application period beginning later this year. But with less than four months left in the year, the process of determining what that permanent program will look like is still ongoing. And while the city council works to update a bill that would create a permanent program, the Adams administration claimed ongoing litigation against the city over al fresco dining is getting in the way.
The city council took a first step earlier this year to make al fresco dining citywide permanent by approving a zoning change that expanded the area where sidewalk cafes were allowed. (Before the pandemic, outlying eateries were largely barred from sidewalk cafe operations.) Assuming the council passes legislation creating a framework for a permanent outdoor dining program — and the mayor signs it — city officials have the Commissioned As the program runs, it is then expected to determine some of its finer details—like the specifics of how applications work or the specific designs of sidewalk cafes—in the rulemaking process. However, it is also possible that Council legislation will outline some of these issues and leave less to the agency.
But at an August news conference on outdoor dining sheds, Adams and his Deputy Mayor for the operation, Meera Joshi, pointed to a lawsuit against the city over outdoor dining as a key obstacle to progress on this permanent program. “There is a small minority that has filed lawsuits to stop this program,” Joshi said. “Unfortunately, this paralyzed our plans to create a permanent program.”
There have been several lawsuits about al fresco dining since the program began, many citing complaints of excessive noise, litter and rodents, which opponents said were made worse by the program and outdoor sheds in particular. A recent lawsuit argued that the city should not be able to renew the temporary program on the basis of a public health emergency because many other pandemic-era initiatives such as mask mandates and immunization requirements have been scrapped.
But the lawsuit, which the Adams administration said was impeding progress toward permanently opening restaurants, argued the city had wrongly determined the program would not have enough environmental impact to warrant a full environmental assessment. Such a review, known as an Environmental Impact Statement, can take months.
In March, a state judge ruled against the city in that lawsuit, noting that a more comprehensive environmental study was needed. The city plans to appeal this decision.
But despite the legal challenges, the city council is working to update a bill introduced by councilman Marjorie Velázquez in February that would make the open restaurants program permanent. Council leaders were not concerned that the ongoing litigation would pose an obstacle to passage of the law, but neither the council speaker’s office nor city hall issued an explanation for the disagreement between the mayor and council.
When asked about the ongoing litigation, Velázquez said it doesn’t stop the council from drafting legislation. “You have to let the courts play as they are,” she said.
Legislation to make al fresco dining permanent could be ready as early as next week, according to a council source. While Velázquez was more conservative in her estimate of when to expect an updated bill, she told City & State not to expect that legislation this month, noting that there’s still a lot of feedback to be gathered on how that works program should look like. also from other council members. “It was a nearly 10-hour hearing,” Velázquez said, referring to a February hearing on the matter. “Everyone has something to say about it”
A number of issues are still up for discussion, including the details of how outdoor facilities will work on the street (as opposed to sidewalks) and the licensing and fee structure. In the first version of Velázquez’s bill, restaurants would pay $1,050 for a license to operate a street or sidewalk cafe and a $525 renewal fee.
Velázquez said she wants to explore ways to make alfresco dining as streamlined and affordable as possible, including considering a variable fee structure where restaurants in denser areas can expect to pay a slightly higher fee. Creating an accessible application process is a priority not only for Velázquez, but also for the restaurant industry. “We want to reduce bureaucracy, reduce bureaucracy and reduce costs. So it’s not prohibitively expensive and geographically restrictive like it was before the pandemic,” said Andrew Rigie, executive director of the New York City Hospitality Alliance.
As for the outdoor dining huts, which have met strong opposition, Velázquez said the council is trying to figure out how to phase them out from the permanent program. “I think the biggest concern for a lot of people has been what we’re going to call these sheds,” she said when asked what kind of feedback she’s getting from other council members. “We’re talking more about standardizing chairs and tables and about traffic calming (items) like planters,” she added, describing what could replace the sheds.
Although both the council and the Adams administration support the concept of permanently open restaurants, there is some disagreement as to how it should work. One problem is determining which agency should be in charge of implementing and running the permanent programme. While the Adams administration wants the Department of Transportation to lead the program, the Council is trying to cede that power to the Department of Consumer and Labor Protection.
Rigie stressed the importance of moving this program forward, noting that restaurants need clarity about what types of outdoor dining structures and materials are allowed in the permanent program — and which ones they should therefore continue to invest in. Still, he said he understands the delays. “It’s better to take a little longer and get it right than rush it and get it wrong,” he said.