Outdoor Dining Under Fire: Advocates Want Equity at the Curb, Not Parking

Whose curbs? Everyone's curbs.

As the City Council holds a hearing on Tuesday that will shape the future of outdoor dining in New York, livable-streets advocates are seeking measures that would encourage the maximally beneficial public use and pricing of curbside space while cutting back on free car storage.

In particular, they are asking for new rules for the city's Open Restaurant program that would:

• limit the height, size and permanence of the outdoor dining structures, for the sake of pedestrian safety and street cleaning
• address conflicts with bike lanes
• ensure that outdoor dining spaces are managed as part of the greater streetscape
• charge eateries for curb use.

The hearing comes as the city takes up legislation to make the Open Restaurant program permanent — and is set to turn over administration of sidewalk-cafe licenses, which now are overseen by the Department of Consumer Affairs, to the Department of Transportation. The Planning Commission earlier approved a zoning change that would allow neighborhood restaurants to apply for sidewalk cafes throughout the city, not just in Manhattan.

Open Restaurants — which started as an emergency measure in 2020 to counter the pandemic-induced collapse of the restaurant industry — has proved resoundingly popular with New Yorkers, according to surveys. As successive waves of Covid-19 made indoor dining literally a sickening proposition, thousands of restaurants invested in constructing outdoor dining structures; the city credits the emergency measure with saving some 100,000 industry jobs.

But as outdoor restaurants and nightclubs in popular destinations attracted throngs, some residents began complaining about a familiar litanies of woes: noise, vermin, rickety or abandoned structures, obstructed emergency vehicles and, less high-mindedly, the fact that outdoor structures often took up what they consider parking space.

And some on the left argued that Open Restaurants amounts to a giant giveaway to businesses in the form of free use of curbside space which easily could be generating revenue for the public good in the form of metered parking or be transformed into other public benefits, such as bike lanes, bus lanes, loading zones to reduce congestion or parklets.

A number of West Village residents last year sued the city to end the Open Restaurant program, mostly arguing about noise, garbage and the loss of parking. State Supreme Court Justice Frank Nervo recently denied a city motion to quash the suit on procedural grounds. A Law Department spokesman says the city is confident that it will prevail on the merits.

But winning the suit will still require the program to be codified. And that's where Tuesday's Council hearing comes in. Advocates are poised to push back on the notion that curbside space exists only for parking.

"Outdoor dining has revealed what we’ve known all along: The curb is incredibly valuable public space and there are many better uses for it than the free long-term storage of  private vehicles," said Sara Lind, the director of policy at Open Plans (a sister organization of Streetsblog). "But the fact is our curbside space has been chaotic for years due to the city’s failure to take an active role in organizing and managing it."

Lind and Jackson Chabot, Open Plans's director of public space advocacy, both plan to testify at the hearing, calling on the city to create a framework for stewardship and management of public space, including Open Restaurants.

"In the long run, we need to price the curb because curb space shouldn’t be a give-away to anyone," Chabot will say in his testimony. "Restaurants should pay their fair share and put that toward caring for our public realm and the agencies that need to verify they are following the guidelines, including not impeding sightlines or otherwise making walkers and bikers unsafe."

Their concerns are shared broadly in the safe-streets movement, which is organizing grassroots activists to testify.

“Throughout the pandemic, outdoor dining has been a lifeline for restaurants and has had overwhelming support from New York City voters," said Danny Harris, the executive director of Transportation Alternatives. "Open Restaurants have shown what’s possible on our streets when we reclaim space from cars as we envision in NYC 25x25," referring to his organization's proposal to repurpose in the next three years a quarter of the space now set aside for drivers.

Broadly, per testimony obtained by Streetsblog, activists would like to see the curbside eateries take down the "permanent" structures in favor of:

• movable tables and chairs with umbrellas or other overhangs and easily movable flooring that allows for street maintenance
• seating  directly at the curb with physically protected bike lanes alongside for the protection riders, patrons and restaurant staff
• enclosures of no higher than 30 inches for visibility.

They also seek:

• consistent and transparent enforcement of siting and design regulations
• management of the program as part of the public realm rather than in a silo, and
• measures that constrict free parking, including wider sidewalks, wider lanes for bikes and other micro-mobility devices, and expanded loading zones.

The anti-open-restaurants faction, for its part, wants curbside dining to end, stat — or at least be severely curtailed.

"The city's proposal to make those sheds permanent has been widely criticized as a reckless usurpation of public space," David Mulkins, president of the Bowery Alliance of Neighbors, wrote in an email in advance of Saturday's rally in the West Village against the program.

Mulkins, whose missive sported two photos of collapsed restaurant structures, wrote that the structures act as "a dangerous obstruction" for emergency workers, "pose serious issues" for snow plows, and lead to "deafening and inescapable" noise for residents.

"Unlike the interior of restaurants, which are enclosed by four walls, the noise from these sheds invades at a much higher volume and hits the residence windows in a much more direct line," Mulkins said, adding, "That old protest rally mantra Whose streets? Our streets! has obviously taken on a whole new grim meaning."

Sophie Maerowitz, a co-founder of Loisaida Open Streets on the Lower East Side, said that some of the anti-eatery rhetoric is overwrought. “The emergency-vehicle arguments are not being made in good faith," she said. "We know that it’s double-parked vehicles and trucks that cause backups, rather than outdoor dining.”

And, obviously, the city has been a home for rats long before the Covid pandemic.

The hearing comes after the DOT last year presented on its vision for a permanent program to all 59 community boards and to the five borough boards as part of the public review of the proposed zoning change that will codify outdoor dining. The city's zoning dashboard makes it clear that there's a lot of controversy. About 30 community boards rejected the city's proposal; about 22 supported it or at least did not oppose it. [To read the zoning proposal and the various recommendations from earlier in this process, click here to download the City Planning Commission's report.]

The DOT remains strongly behind the program, which, at last count, comprises 12,129 restaurants citywide.

Open Restaurants "helped reimagine our streets for better, alternative uses beyond vehicle storage," said agency spokesman Vin Barone, adding that the department is "committed to delivering an equitable permanent program with strong enforcement guidelines."

The restaurant industry seems satisfied with the state of play.

Robert Bookman, the general and legislative counsel of the New York City Hospitality Alliance, said that the industry is "very pleased" that the Council is moving ahead to give final approval to the zoning change allowing sidewalk cafes throughout the city, and is looking forward to working with the administration and the Council on the legislation to reform "the old, restrictive, time-consuming and expensive sidewalk-cafe law."

"Outdoor dining was a breath of fresh air during the dark days of the pandemic," he said. "New Yorkers love it and restaurants need it to survive. Now is the time to make changes to the emergency program by making outdoor dining a  permanent part of our streetscape."

The City Council hearing on making the Open Restaurants program permanent starts at 10 a.m. on Tuesday. Sign up to testify virtually on Zoom here.