By Brian J Pape, AIA, LEED-AP
The development of Outdoor Dining in New York City continues to evolve. The Open Restaurants website of the city at nyc.gov/ DOT provides updated information on what the city is working on; this is an overview of the current status.
The New York City government (“City”) seeks to develop a new citywide permanent outdoor dining program (Permanent Open Restaurant Program, or POR) to be administered by the Department of Transportation (DOT), pursuant to DOT’s authority over sidewalks and roadways. The POR Program would replace two programs, the City’s emergency temporary outdoor citywide dining program, and the City Department of Consumer and Worker Protection’s (“DCWP”) long-standing sidewalk cafe program, suspended in June 2020, which requires compliance with specific siting, design, and safety requirements outlined in the NYC Administrative Code and the Rules of the City, and with Community Board review. The DCWP previously issued revocable consents and licenses subject to review and consideration by various agencies, such as DCP and the Department of Environmental Protection (“DEP”), and the Community Boards for the district in which the cafe was proposed to be located.
Food service establishments are currently permitted to self-certify that they meet program requirements of the Emergency Temporary Open Restaurants Program, and City agencies have worked to address noncompliance, conducting nearly 60,000 inspections with fines and removal of some outdoor seating for failed multiple inspections. But studies show that most establishments fail to comply, perhaps because they are novices at this, and the lack of full enforcement is key.
The City has been working on the POR since November 2020. A group of citizens have challenged the environmental assessment study (EAS) of the POR Program, and the Petitioners allege that the EAS was inadequate.
Julie Schipper, the Director of Open Restaurants in the Office of Cityscape and Franchises at the DOT since February 2022, provided this statement of current criteria for the POR:
- Eligibility for outdoor dining under the POR Program will be limited to restaurants with an active New York City Department of Health and Mental Hygiene food service establishment license and ground floor frontage.
- With limited exceptions, establishments will be required to maintain a minimum 8’-foot clear path for pedestrians, keep out of bus lanes and bike lanes, and comply with setback distances from hydrants, bus shelters and other structures.
- Establishments will be required to have 18-inch wide and 30- to 36-inch-high protective barriers on three sides of any seating perimeters that are in roadways.
- Fully-enclosed structures with a ceiling will be prohibited.
- Roadway seating must include a ramp or platform for Americans with Disabilities Act (“ADA”) compliance.
- An establishment’s outdoor seating may not exceed the (extent of) business frontage.
- All roadway dining seating areas will be limited to existing parking lanes and may not block existing No Stopping Anytime, No Standing Anytime, or other loading zone areas.
- All establishments will be required to keep the interior of their roadway dining areas clean and will be responsible for cleaning, up to 18 inches along the outside of their roadway dining setups.
- All establishments will be required to clean along the curb line in either direction from the edges of their roadway dining setup to prevent litter accumulation in areas made inaccessible by the Department of Sanitation (“DSNY”) mechanical brooms due to minimum turning radius.
- Roadway seating applications on streets with more than 25 percent of the total roadway allocated will be reviewed by DOT staff to evaluate street layout and consider reconfiguration of the street and/or loading zones if needed.
- Outdoor seating within a New York City Historic District, or within an individual New York City Landmark where the site includes the sidewalk, will require New York City Landmarks Preservation Commission (“LPC”) review and approval.
The proposed law would also require establishments participating in the Program to pay an initial license fee of $1,050 for a sidewalk cafe, with a renewal fee of $525, and an initial license fee of $1,050 for a roadway cafe, with a renewal fee of $525. Applications for revocable consent to operate roadway cafes would require notifying the affected Community Board. The proposed POR Program will not allow restaurants to self-certify.
Mr. Neil Gagliardi, the director of the City DOT, met with the AIANY POR committee (whose design challenge was reported last month in WVN) on 3/14/22, to discuss with members the goals of DOT for the POR, to help guide the design process. Excerpts below are from that discussion:
Does the structure need to collapse at night? Does the roof need to come off and have height be 36”?
DOT does not want sight lines obstructed and they do not want a ‘building’ in the street
DOT is going to provide some more documentation on location/height of street signs
Mr. Gagliardi mentioned that DOT wants to see more city amenities in the shed area- Wi-Fi, bike storage, planters, etc.
Will the City be able to fabricate, deliver, install, or maintain the kit of parts the way they do other City pieces of furnishings?
Mr. Gagliardi loves the idea of us using existing city pieces, and said typically they do single source production and then figure out how to fabricate.
Mr. Gagliardi understands that knowing how this is being manufactured is key; he said to design as if DOT will coordinate the fabrication, but design it so the fabrication is cheap/easy for them to tackle at a large scale. Efficiency in economy of scale very important. .
Also, provide a timeline on how a project like this could be manufactured.
Mr. Gagliardi also said to pay close attention to the City Streets project.
DOT rules will consider the design submissions to establish siting criteria, design guidelines, operational criteria, and administrative procedures for the Program.
On Feb. 22, 2022, the City passed the zoning amendments necessary for the POR; the Mayor is expected to sign it into law. This step was necessary to allow the POR to apply to the entire city, in areas currently prohibited by law from having outdoor dining, except during this emergency.
DOT does not anticipate the rulemaking process being complete until approximately fall 2022.
Brian J. Pape is a citizen architect in private practice, serving on the Manhattan District 2 Community Board Landmarks Committee and Quality of Life Committee (speaking solely in a personal, and not an official capacity), Co-chair of the American Institute of Architects NY Design for Aging Committee, is a member of AIANY Historic Buildings and Housing Committees, is LEED-AP “Green” certified, and is a journalist specializing in architecture subjects.