Almost two years after the City Planning Commission’s zoning text changes, applications for the permanent program are expected to open next month. On February 2, 2024, the Department of Transportation released the final rules for the permanent outdoor dining program, “Dining Out NYC.” Through the new program, outdoor dining will be expanded citywide on sidewalks year-round and in roadways seasonally from April through November.
The new program replaces the temporary open restaurants program that allowed restaurants to safely expand to outdoor dining during the first year of the COVID-19 pandemic. The program is credited with saving approximately 100,000 jobs as over 12,000 restaurants citywide participated. Despite the success of the temporary program, it was created based on emergency executive orders, so a permanent program would need to be created.
In February 2022, the City Planning Commission voted to approve changes to the zoning text that removed restrictions from where outdoor cafes could operate around the city. Prior to the temporary program, outdoor cafes were limited to certain areas, mostly in Manhattan. The original outdoor cafes required approval from the Department of Consumer and Worker Protection (formerly Consumer Affairs) and required a long and expensive review process. Before the pandemic, there were less than 1,200 restaurants with outdoor dining in New York City.
Following the City Planning Commission’s approval, the City Council reviewed proposed legislation to transfer the authority to operate the permanent outdoor dining program to the Department of Transportation, which had been operating the temporary program. The City Council had to handle quality of life concerns of noise, pests, parking, and abandoned dining structures, questions of the Department of Transportation’s ability to handle the program and complaints, and concerns from restaurant owners about what they had already invested in their outdoor dining set-ups and how critical outdoor dining had become for the survival of many of the city’s eateries. Following the resolution of lawsuits challenging the environmental review for the City Planning Commission’s zoning text change, the City Council voted to approve the permanent outdoor dining bill in August 2023. Since then, the Department of Transportation has worked on establishing the rules for the program’s operation, including public hearings over this winter.
The new permanent outdoor dining program will allow restaurants to use sidewalk seating year-round with removable tables, chairs and decorative items. Roadway cafes can operate from April 1 to November 29 with additional restrictions. Outdoor cafes may only operate from 8 AM to midnight Monday through Saturday and 10 AM to midnight on Sundays. The program requires restaurants to keep a clear path along the sidewalk and to not restrict the furnishing zone parallel to the curb, in addition to required distances from other common sidewalk features and infrastructure, including bus stops, subway staircases, mailboxes, and more.
Restaurants must apply for a license to operate a sidewalk or roadway cafe. Licenses are valid for four years and will cost $1,050 to grant or renew a license for either a sidewalk or roadway cafe. In addition, restaurants will have to pay for a revocable consent to use the sidewalk or roadway space. The revocable consent fee is paid annually and determined by the sector the restaurant is located in; most restaurants in the outer boroughs can expect to pay $5 per square foot for roadway space and $6 per square foot for sidewalk space, and restaurants in certain parts of Manhattan can expect to pay up to $25 per square foot for roadway and $31 per square foot for sidewalk space. While restaurants did not have to pay during the temporary program, these permanent rates are cheaper than the original outdoor cafe plan, where restaurants south of 96th Street in Manhattan paid $40 per square foot and restaurants elsewhere paid $30 per square foot.
After petitions for the revocable consent are received by the Department of Transportation, they will be forwarded to the impacted Community Board, Borough President, Council Member and Council Speaker. The Community Board will have 40 days to hold a public hearing and submit a recommendation or submit a written statement waiving the public hearing and recommendation. If the Community Board submits nothing, the hearing and recommendation will be considered waived. If the Board denies the petition or votes to approve with substantial modifications that the restaurant owner does not agree with, a public hearing can be held by the Department of Transportation. Petitions that get approved by the Department of Transportation will be reviewed and voted on by the City Council. This process will allow the public to have multiple opportunities to provide feedback and concerns regarding any given application.
DOT Commissioner Ydanis Rodriguez stated, “Outdoor dining has activated our streets, breathing new life into our public spaces and creating lively gathering spaces. Diners can now enjoy the atmosphere of our city while supporting our local small businesses. Through the finalized rules that incorporate community and local businesses feedback, Dining Out NYC will build on the lessons learned during the pandemic to improve safety and quality of life — while still allowing for creative, flexible, and beautiful setups. We look forward to the rollout of New York City’s new and historic permanent outdoor dining program.”
Andrew Rigie, Executive Director, and Robert Bookman, Counsel, of the New York City Hospitality Alliance stated, “Outdoor dining saved thousands of restaurants and 100,000 jobs during the pandemic, while creating a more social and economically vibrant streetscape. It’s been a long road, with lots of consideration and compromise by many stakeholders to develop a more standardized and sustainable outdoor dining system. We now look forward to working with the city of New York and restaurants across the five boroughs as they transition from the pandemic-era Open Restaurants program into the new Dining Out NYC alfresco system.”
By: Veronica Rose (Veronica is the Editor of CityLand and a New York Law School graduate, Class of 2018.)