Challenging the City Outdoor Dining Program

By Brian J Pape, AIA, LEED-AP

We can all agree that it’s a challenge to plan new street uses for our public right-of-way, in a city planned and built in a horse and buggy era, where wide sidewalks were slowly eaten away by widening roadways to allow automobile parking on the street. When indoor seating was locked down in the pandemic, emergency outside seating served a beneficial service to our community, but since 2021, all establishments have their indoor dining back in service.

Recent articles in the New York Times, New York Magazine’s Grub Street, StreetsblogNYC/Open Plans and other media challenge the viability of the NYC Dining Out program. Although each takes a swing at the city bureaucracy for a very slow rate of approvals for new applications for outdoor seating spaces, none of them offer a complete, balanced picture of what has gone on. Now just a month before the opening of the 2025 dining out season, why are there only 40 or so setups approved out of 1,400 applications? Let’s look at some of the new regulations that have been implemented.

Many news stories bemoan how applicants may not have enough time to get their licenses approved before the April 1 season opening of outdoor dining, but they neglect to note that all those who already had their temporary setups in place could have filed for renewal under the new laws a year ago!

For example, under the temporary dining out rules of the pandemic, proprietors had to hire design professionals to provide detailed site plans. Under the new rules, the hospitality lobbyists were able to eliminate that expense, thinking that somehow the applicants would be able to show accurate dimensions on their applications. They were wrong. In almost all cases, what is presented is so inaccurate or incomplete that reviewers aren’t able to decipher what is intended and whether the layout actually will meet the criteria.

We’ve all seen the increase in rat infestation attracted by food served and left outside, with no way to clean up around and under the “sheds” haphazardly erected in the street. The new rules address that. From now on, all platforms must be removable, and the set up must be removed from November to April for regular street cleaning.

Now, how about the cost of setting up for al fresco eating and drinking, that simply wouldn’t seem worth it under the new laws? Well, actually, the new city law requires light-weight, moveable furnishings, much like the sidewalk setups that have always been in place with nightly clearing the sidewalks for normal pedestrian use. Seats on the sidewalk, or seats on the roadway, are now equally moveable and cleanable, an essential aspect of keeping our quality of life.

Another aspect of the restaurant world that has not received much attention is the federal Americans with Disabilities Act of 1990. It simply requires that public accommodation spaces be accessible to people who have a disability that may require special equipment or pathways. For instance, food establishments with only a few seats don’t need to provide restrooms for customers, but when seats are added, inside or outside, then more accommodations must be added too. Adding a restroom may not be possible for some places, so a balance of how many seats are added may be necessary. But whether a restroom is required or not, there still must be at least one spot within the new café setup that is accessible for a person with a disability.

There are no seatings allowed on sidewalk platforms or leveling decks built on a sidewalk. The same applies to roadbed seating, except that removeable platforms are allowed to be built to provide level floor surfaces. As a result, if there isn’t at least 36” of space between the storefront and the café limit, or within the roadway barriers, then it cannot meet the restrictions. Singular tables and chairs, without a border barrier, are not permitted; this is a direct result of temporary setups that previously were able to creep into the remaining sidewalk spaces, blocking pedestrian flow.

One last point is that the city has had a rule in place for many years that requires all streets to maintain 15’ of clearance for emergency vehicles. So how is it that politicians are now pressuring the fire department to “waive” that requirement, to allow as little as 10’ to suffice for emergency access between roadway seating and other obstacles? This is a clear and known endangerment to New Yorkers.

Several of these waivers have already been granted by DOT and many more have been requested. Note that the fire department has made some changes in an attempt to balance the dangers of such waivers. West Village Residents (team@westvillageresidents.org) emailed Council Member Erik Bottcher [cc: Kevin Woods, FDNY and Lauren Antonelli, DOT] opposing these dangerous waivers. It read, in part, “We cannot see any reason why the DOT would request that the FDNY agree to waive the DOT’s own rules — and, in so doing, compromise the basic safety of residents and the safety of fire department personnel as well.“

Outdoor dining has its benefits and its place, so the community and its community boards are working to find the appropriate places for seating that considers everyone’s quality of life, not just the profits of proprietors.

The city council passed a law in March 2024 (LL121) that required all sidewalk enclosures to be removed and seating to comply with the new rules by November 2024. Here are some of these ongoing enclosures that deserve our attention. This is not an exhaustive list and conditions may change by the time you see this article. Photos by Brian J. Pape, AIA.