In November 2020, the City Council passed Local Law 114, directing that, by September 30, 2021, the Department of Transportation make the Covid emergency outdoor dining program permanent. While a bill to do that (Intro 31-A) was introduced in the Council in February 2021, it stalled waiting for the Department of City Planning to develop the necessary amendments to the Zoning Resolution – essentially deleting the existing rules limiting sidewalk cafes to only certain streets in certain neighborhoods. Those amendments were approved in February 2022, but the Council bill continued to languish.
Last week, on May 18, the bill to make outdoor dining permanent was amended and re-introduced as Intro 31-B. Already the battle lines are being drawn. Although hailed by Mayor Adams as a “program that will support our small businesses, create jobs for New Yorkers, and keep our streets and communities vibrant,” a group calling itself CueUp (the Coalition United for Equitable Urban Policy), is already circulating petitions in opposition, calling Intro 31-B “neighborhood-wrecking legislation” crafted in “backroom meetings” with “special interest lobbyists.”
Before we enter the fray, let’s first take a look at what is in the bill and how the permanent program will differ from the emergency program as it has existed for the last three years.
Intro 31-B provides that the Department of Transportation (DOT) “shall promulgate rules” for the design, operation and maintenance of outdoor sheds to “prevent undue obstruction of the street, to ensure good order, public safety and the general welfare.” It does not speak to the specifics of the location and size of sidewalk and roadway dining sheds. Under the rules established for the emergency program, among other things, sidewalk cafes had to leave an 8-foot clear path on the sidewalk, and roadway sheds were limited to a width of 8 feet. Sheds were prohibited in bus lanes, bus stops, or near fire hydrants and intersections. These standards, or something close to them, are likely to remain.
The difference is that under the emergency program, all a restaurant owner had to do was file complying plans with DOT and could then proceed to erect a shed. There was no approval process and no license. Under 31-B, a revocable consent is required, and the process for obtaining one is as follows:
- The restaurant must submit to DOT a petition with dimensioned drawings showing required clearances, tables, chairs, barriers and other permitted objects such as heaters and lighting;
- Within 5 days, DOT must forward the petition to the Borough President, City Council Speaker and the affected City Council Member and Community Board;
- Within 40 days, the Community Board must give public notice, conduct a public hearing and submit a written recommendation;
- Within 20 days after the Community Board’s 40-day review period, DOT must approve, approve with modifications, or disapprove the petition and file its decision with the City Council;
- If the Community Board disapproves the petition or approves it with modifications, then DOT must hold a public hearing within 30 days, giving the Borough President, affected City Councilmember and Community Board 15 days’ notice of such public hearing and publishing 5 days’ public notice in the City Record and one newspaper;
- At the first scheduled meeting after receiving the petition from DOT, the Council must decide by majority vote whether to review the petition. If it votes not to review, the DOT decision becomes final. If, however, it votes to review, then:
- Within 45 days, the Council must hold a public hearing and by majority vote, approve, disapprove or approve with conditions. Intro 31-B prohibits the Council from modifying “the term, compensation, revocability, exclusivity, security, insurance, indemnification, erection, operation, maintenance or removal of any structure, right of access by the city and rights of abutting property owners.” Effectively, this broad prohibition negates the option for the Council to “approve with conditions,” limiting the Council‘s options to either a thumbs up or a thumbs down.
Intro 31-B would also require that a dining shed located in a historic district or in front of an individual landmark building be approved by the Landmarks Preservation Commission. Although industry groups have already raised alarms about this requirement, Intro 31-B only requires such approval if a shed “includes work or improvements for which such approval is required pursuant to chapter 3 of title 25” of the Administrative Code – i.e., the Landmarks Law. Since the Landmarks Law provides for the protection of landmark buildings, as long as the shed isn’t attached to or abuts the building – which few, if any, outdoor dining sheds do – it’s hard to see how any sidewalk and especially roadway shed would require Landmarks approval.
If approved, the revocable consent will have a term of 4 years.
Another difference, which, surprisingly, many have yet to focus on, is that under Intro 31-B, the use of the public right of way will no longer be free, as it was with emergency dining sheds. Under Intro 31-B, sheds will incur an annual fee, the amount of which will vary depending on the “Sector” in which a shed is located. The City will be divided into 4 sectors. Sector 1, the least expensive, will apply to “a minimum of 80% of the city,” and Sectors 3 and 4, the two most expensive, “shall only include the area south of and including 125th Street” in Manhattan. Curiously, the Sector rates for roadway sheds are lower than the rates for sidewalk sheds. Intuitively, one would think it would be the opposite given the greater impacts of roadway sheds on traffic, parking, trash collection and deliveries.
The annual fees for sidewalk sheds and roadway sheds will vary slightly as shown in the following table:
In Manhattan, for example, an 8-foot-wide roadway shed in front of a restaurant on a typical 25-foot-wide lot would have a maximum annual fee of just $5,000 ($600 per month). In the 80% of the City covered by Sector 1, the annual fee would be a mere $1,000 – less than the petition fee of $1,005.
Intro 31-B provides that the Sector rates will be “determined by [DOT] based on the median annual rent for a square foot of ground floor commercial premises in such sector.” “Based on” obviously doesn’t mean “equal to” since there is probably nowhere in the five boroughs, let alone Manhattan below 125th Street, where the rent for ground floor commercial space is as low as $14 per square foot. Perhaps the reason the annual fee hasn’t gotten much attention (so far) is that the rates are so low. From the industry perspective, while not free, such low rates are the next best thing. However, it’s not hard to imagine that opponents of Intro 31-B will argue such fees are a “giveaway” to the restaurant industry.
Finally, the difference that appears to have garnered the most attention and comment so far is that under Intro 31-B, roadway dining sheds will not be permitted to operate from December 1 to the following March 31. Sidewalk sheds will continue to be allowed to operate year-round. The assumption appears to be that for those four months, the roadway sheds must be removed. Even one of the bill’s sponsors, Marjorie Velázquez of the Bronx, expressed this view: “As roadway structures will be movable, we don’t anticipate businesses having issues taking them down.” However, some restauranteurs and dining industry groups object and argue that the cost of annually taking down, storing and then putting back up the sheds, tables, chairs, heaters and lighting will make roadway dining sheds economically unfeasible.
The fact is, however, that as written, Intro 31-B does not explicitly require that the roadway dining sheds be removed, only that they may not “operate” during those four months. Under the letter of the law, at least as now written, all a restaurant owner must do to comply with the law is to lock up the shed and not use it from December to April. Obviously, this will have to be clarified.
Whether Intro 31-B will ultimately be approved is an open question. There are passionate advocates on both sides, each with valid arguments. Everybody – well, almost everybody – loves dining under the stars on a soft summer night. On the other hand, it would not seem a coincidence that after three years of having 13,000 outdoor dining sheds on the City’s streets, for the first time in its history the City has appointed a Rat Czar to deal with what is widely recognized as a city-wide infestation. Perhaps the fact that the City has eliminated all the old zoning restrictions on sidewalk cafés – the traditional tables and chairs on the sidewalk – allowing them on virtually every street in every neighborhood of the City, will be enough. Maybe we should let the outdoor dining program lapse for a bit, get all the hastily slapped-together plywood sheds off the streets and see how things go. Maybe we can have lively, active streets without them being lined with traffic-jamming, claustrophobia-inducing sheds.
If you have any questions about the proposed Intro 31-B or how permanent outdoor dining would impact your property, please contact your trusted R&E attorney or Frank E. Chaney, Head of the firm’s Zoning and Land Use Department, who authored the above.