Proposed DOT Rule Changes Would Raise Burdens and Even Penalize Open Street Operators: Activists

Don't go fly a kite!

Supporters of open streets slammed the Department of Transportation for a series of proposed — and in the words of one advocate, "frankly unworkable" — rule changes to the open streets program that would raise hurdles and introduce punitive penalties to the mostly volunteer open street managers, including if a kid so much as flies a kite.

"The overall arc of some of these rules is to make it more difficult to operate an open street," Jim Burke, who leads the volunteer army that runs the 34th Avenue open street in Jackson Heights, testified at a DOT hearing on the proposed rules.

Burke and other specifically called out the agency for several of the proposed rules including a requirement that every event on an open street would require a street activities program, the threat of $500 penalties for any violation of the rules (including, the aforementioned kite flying), and even a ban on residents who want to bring their own beach chair to the open street.

"It looks like you can get a fine for putting out a sign that says, 'Hopscotch at 3 p.m.,'" Burke said. "And once you pass the arduous process of becoming a DOT partner, you'd still have to get a Street Activities Permit Office permit. That doesn't make sense if [the DOT has] already said, 'This is our partner. We trust them. They know the rules.' Once you designate the partners, you should give them a lot more leeway. I don't really understand the reasoning behind it."

Burke was one of many supporters of open streets who used the hearing to champion the life-saving, business-improving and mental health-calming benefits of the program, which has converted dozens of stretches of roadway from car-filled arterials to largely car-free space across the city. But the program, created by the city during the pandemic and made permanent in 2021  by the City Council, is largely run by volunteer groups.

As such, "it makes no sense to create this punitive dynamic to a program intended to provide safe and joyful public space," testified the public space advocacy group Open Plans (which shares a parent company with Streetsblog).

The group's Director of Advocacy Jackson Chabot also specifically called out the DOT for rules that would require the community volunteers to conduct extensive outreach to residents and the business community.

"This continues to offload an unfair burden onto volunteer groups ... when we should be advocating as a city to have a larger capacity at the Department of Transportation to provide these services ... specifically around the management and community outreach plan," he said.

Several opponents of open streets testified that the greater access to fresh air and neighborhood livability was an undue burden on drivers, but the overwhelming comments came from supporters of the program, who, nonetheless, expressed concerns about the rules.

"The permanent open streets program should improve the sustainability and make it easier for other communities to launch open streets. Unfortunately, some of the proposed rules will make our work harder and create insurmountable barriers for new community partners," said Saskia Haegens of the Prospect Heights Neighborhood Development Council, which operates the Vanderbilt Avenue open street in Brooklyn and uses "dozens of neighborhood volunteers" to deploy "90 French barriers, 100 traffic cones, 25 tables and 100 chairs."

Haegens specifically objected to a new rule that would require community groups to give the DOT 30 days of notice if they wish to work with sponsors.

"It's frankly unworkable [and] arbitrary and a reasonably restrictive," Haegens said. "A more sensible approach would be for community partners to submit an annual marketing plan to DOT for approval, similar to the plans that we now submit for site design management, operations and outreach."

Haegens also pushed back on the proposed $500 penalties.

"We believe that the rules should make clear that open streets partners are not responsible for enforcement of conduct by members of the public," Haegens said. "Partners who manage public space at the behest of the city with no profit motive should not be subject to fines for violations."

Chabot added, "It's really unfair to have a $500 fine. This program is intended to create safe and joyful public space. And by adding a financial penalty that is punitive is completely counter-intuitive to the nature of the program [including] potentially getting a fine over flying a kite on an open street."

Perhaps the most telling moment of the 90-minute hearing came when Isaac Clerencia, a native of Spain who has lived here for many years, pushed back on the argument of several open streets opponents who complained that there is plenty of open space in New York City parks and playgrounds, and that residents don't need any more.

"I find the amount of public space in this city completely insufficient," he said.

Streetsblog asked DOT a series of questions about the motivation for the rules, but spokesman Vin Barone opted only to issue the following statement:

“DOT strives to deliver an equitable Open Streets program that transforms our roads into vibrant public spaces," he said. "The agency is currently in the public comment period for these rules and is reviewing all comments as part of this process.”

Wednesday's hearing came against the backdrop of a new federal lawsuit that seeks to end the open streets program on the grounds that it violates the Americans With Disabilities Act. Experts say the suit will fail, and it was not mentioned by any speakers at the hearing.

Testimony can be submitted until 5 p.m. on Wednesday by emailing rules@dot.nyc.gov.