On Feb. 8, the City Council’s Subcommittee on Zoning and Franchises held a joint hearing with the Committee on Consumer and Worker Protection on the proposed permanent open restaurant program. The meeting lasted over eight hours with 250 people testifying for and against the program.

First introduced on an emergency basis in June 2020 as a response to COVID-19 restrictions on indoor dining, the program allows participating restaurants to use sidewalk and parking space for outdoor service. The temporary Open Restaurants Program is set to phase out toward the end of 2022, but New York City has begun the process of making the program permanent. As of Feb. 1, there were 12,124 restaurants and cafes participating in the temporary open restaurant program.

Critical Pushback

Opponents of the program say the outdoor dining structures are eyesores that have led to noisy and dirty streets, and have helped the restaurant industry at the expense of others.

Councilman Kalman Yeger, who represents parts of Brooklyn including Bensonhurst and Borough Park, said, “While we’ve created a program for restaurants, we haven’t created a program for the shoe store next door, for the bookstore next to that, for the hardware store—that have all lost sidewalk space, that have all lost spots, that have all lost the attraction of a block to people wanting to shop there because it’s now chaotic and anarchist.”

Others testified that the zoning rules intended to protect neighborhood residents have been upended because of the program. They argued that drunk people in close proximity to bedroom windows have reduced the quality of life for New Yorkers and the nighttime enjoyment of their dwelling. Others testified to increased rat infestations, noise pollution, and accessibility issues due to sidewalk and street congestion.

Permanent Program Details

Department of Transportation (DOT) Commissioner Ydanis Rodriguez and other DOT staff presented more details about the operation of the permanent open restaurant program. All restaurants will be required to reapply for the permanent program, with new applications facing a $1,050 fee. Renewals will cost $525.

The DOT’s Open Restaurants Program director, Julie Schipper, testified that makeshift structures won’t be allowed to remain standing after the COVID-19 pandemic eases. The DOT won’t be grandfathering in any of the restaurants and their current existing sheds. “What would be in the roadway [are] barriers and tents or umbrellas, but not these full houses that you’re seeing in the street.”

Community boards will have their usual review of sidewalk cafes, but will only receive notice about applications for roadway cafes. Roadway cafes will be subject to a revocable consent public hearing, but community board hearings aren’t required. The expected review time is five months for sidewalk cafes, and four months for roadway cafes.

Legislative Next Steps

In November 2021, the City Planning Commission voted to approve a zoning text amendment that eliminates certain restrictions on where sidewalk cafes can be located. This paves the way for final City Council and mayoral approval for the open restaurants program to become permanent and overseen by the DOT. Once the City Council approves the program, the DOT and other relevant agencies would need to establish administrative rules about the program, which would also be subject to a public comment process.