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Land Use, Housing & Zoning

June 2022, Joint Transportation & Environment, and Land Use, Housing & Zoning Committee

CB5 Recommendations to the Department of Transportation’s Permanent Open Restaurants Program.

WHEREAS, Manhattan Community Board Five (“CB5”) wishes to comment on the developing progress of New York City’s proposed permanent Open Restaurants Program (“The Program”) by the Mayor’s office and by the NYC Department of City Planning (DCP) (1), and the key strategic, operational issues and challenges that face CB5’s district as well as the City at large as the details of the Program take shape; and

WHEREAS, The New York City Council, after soliciting comment and input from the community and City at large through the fall of 2021 and winter of 2022, recently passed legislation taking the initial steps for the Program, with text amendments under the City Charter and to the relevant sections of the NY Administrative Code and local law to alter the City’s zoning laws that would have the effect of greatly expanding the eligibility of New York City and its many diverse neighborhoods to offer both sidewalk and curbside dining (2), as well as to allow further envisioned legislation to transfer the management and operation of the Program from the NYC Department of Consumer and Worker Protection (“DCWP”) and a host of other City agencies to the NYC Department of Transportation (“DOT”); and

WHEREAS, CB5 established the Open Restaurants Task Force (“ORTF”) under the auspices of CB5’s Land Use Housing and Zoning Committee (“LUHZ”) to lead up the effort to study, collate, and advise CB5 and LUHZ on all matters of evidence in helping guide CB5 policies regarding the Program; and

WHEREAS,  CB5 via resolution and board action on July 8th of 2021 (3)  (“The July 8th Resolution”) has previously made known its support for the Program as an emergency measure during the pandemic period on account of Covid-19, and the suspension of the existing schema, currently in place through the end of 2022, for review, regulation, and permitting of outdoor dining to help all New Yorkers, the restaurant industry, and related commerce in a difficult time; and

WHEREAS, CB5, according to the July 8th Resolution, set forth its general policy and position toward parts of the proposed plans to make the Program permanent, namely that it generally supports the zoning aspects (“The Zoning Aspects”) which include the zoning text amendments allowing more parts of CB5’s district, as well as those across the city in similar manner, to be eligible for sidewalk and roadway dining, as well as changes to the City Local Law allowing for the transfer and consolidation of all management of outdoor dining (applications, regulation, and enforcement) from the Department of Consumer and Worker Protection (“DCWP”) and other city agencies to a single agency, DOT; and

WHEREAS, The July 8, 2021 Resolution set forth CB5’s strong concern that the Zoning and Local Law amendments would necessarily result in a transformational change in the nature of the existing regulatory schema leading to an exponential increase in outdoor dining in all numbers and related aspects, and that the design, application, and process specifics (“The Design Guidelines”) should be drafted and implemented so as to allow for proper application, regulation, and enforcement of the Program, including realistic budgeting for and creation of DOT resources to deal with the new permanent structures; and

WHEREAS, The July 8th Resolution also included CB5 comments calling for immediate and future enforcement and remediation of problems relating to sound, aesthetics, sanitation, deportment, site suitability, crowding, pedestrian, vehicular, bicycle, and fire safety, and commercial access that have become apparent during the course of the Program that must be remedied by the DCWP and DOT under the current and proposed regulatory schema, taking into account the certain increase in outdoor dining;  and

WHEREAS, CB5 at that time set forth its intention to reserve comment, either of additional support, disapproval, or constructive engagement, on the evolving agency rulemaking concerning the Design Guidelines of the Program until a later date at which time the Design Guidelines take shape and/or are finalized; and

WHEREAS, CB5 in conducting its research  has looked closely for purposes of its comments and recommendations at both the current rules and regulations in place during the current transitional phase of the emergency program (seen at the Department of Transportation web site at: https://www1.nyc.gov/html/dot/html/pedestrians/openrestaurants.shtml ) as well as at materials and testimony supplied by DOT to the public at hearings and other public sources (4); and

WHEREAS, CB5 is greatly concerned that the Program and Design Guidelines as explained in comments to date by DOT staff at public hearings and in the press (5) and as posted on their public platforms show a schema that may make the Community Board’s fulfillment of their role of review with local public comment more difficult for sidewalk and street cafes, especially given that the Zoning Changes will result in an exponential increase in the number of licenses that will come before the DOT under the new schema (6); and

WHEREAS, It is CB5’s strong belief that the Community Boards, as the arm of government closest to the communities, and with decades of practical experience holding hearings, mediating, and balancing interests, must be given a leading role in this effort for the Program to succeed. CB5’s conclusion is that the current language to date in the enabling Design Guidelines needs alterations to allow it to pursue this role effectively; and

WHEREAS, CB5 makes note of, alongside the success of the Program during its emergency phase in many respects, the continued perception of problems related to the structures, outdoor space, clear path requirements, quality of life issues, enforcement, and sanitation issues among others that if not adequately addressed will continue to engender opposition to the Program (7); and

WHEREAS, CB5 has identified as a crucial consideration in its continued support of the Program and the proposed Design Guidelines a need for modifications and/or revisions or additions to the statutory language and forthcoming regulations (8). 

WHEREAS, These changes are most needed in the areas of notice to the Community Boards upon the granting of licenses and the opportunity to review, in an administrative structure and regulatory set of standards that gives greater weight to the individual and local nature of the district and City neighborhood’s unique character, allocations of budgetary resources for enforcement and administration necessary to the task, and additional research in the form of Environmental Impact, and that without these the Community Board’s role in review will be made difficult and possibly unworkable; and

WHEREAS, The Program will have great impact on such critical aspects of city life, including important areas such as the City budget, quality of life, commercial and private vehicular traffic, pedestrian activity on the sidewalks and streets, as well as City-wide micro and macroeconomic activity; and

WHEREAS, Current and pending legal action with respect to the Program has called for an Environmental Impact Statement according to appropriate state-wide statues to be conducted and issued by the State in connection with the roll-out of the Program in all its aspects; and 

WHEREAS, CB5 takes into account the following: 1) Reporting and commentary on the Program as reported in the local media (9);2) Commentary on the Program among its peer Community Boards (10);3) The compiled commentary on the Program by CB5’s relevant StandingCommittees (Land Use Housing and Zoning, Parks and Public Spaces, Public Safety and Quality of Life) (11);4) The commentary and concerns on the Program by residents of CB5’s district as made known at public Committee Meetings and communication to CB5 offices (12);5) Commentary on the Program as given by elected officials, various City departments, independent groups studying the Program, all made available at public hearings or on various websites or other publicly available resources (13);6) Recent legal challenges and court action dealing with important parts of the program (14);  and, therefore, be it

RESOLVED,  CB5, at this time, would like to make known the attached comments, concerns, and recommendations about the Program and the Design Guidelines that should be taken into account as the Program is rolled out, and that should be included as factors that inform changes and revisions as necessary to the regulations and statutory language that define the Program, in the following subject areas:

1) The Open Restaurant Program and the Challenge of Reform

2) Structures

3) Outdoor Cafe Space

4) Clear Path Requirements

5) Quality of Life Issues

6) Enforcement

7) Sanitation and Health

8) Community Board Review 

9) Sidewalk/Street Cafe Applications

10) Budgetary and Environmental Impact Issues; and therefore, be it further

RESOLVED, CB5, at this time, would like to make known its strong  recommendation that the appropriate City-wide environmental impact statement of suitable scale and depth be conducted by the City and DOT and released according to the pertinent statutory guidelines in connection with the Program, and at such time and place that its findings can guide the proper implementation of the Program as it is rolled out and its regulations issued for review by the public.

CB5 Comments, Concerns, and Recommendations

(Note:  References to CB1, C2, CB4 and CB5 pertain to comments and suggestions on the Program and Design Guidelines as mentioned in their published reports and committee comments; Endnotes included in this resolution can be found at the link https://bit.ly/3F48u2n, a comprehensive list of Open Restaurant Task Force research, reference materials, charts, graphs, correspondence and other materials can be found at this link for the ORTF Data Sheet -  https://bit.ly/3y7NWVgThe Open Restaurant Program and the Challenge of ReformCB5 would like to acknowledge the concerns and analysis of CB2 with regard to the Program and proposed changes which are stated in their resolution of September 23rd, 2021 (15). CB5, like CB2, has a large concentration of cafes of many types in a neighborhood that varies greatly in layout, mixture of commercial and residential properties, and historic districts.  Their analysis of the potential problems and transformational impact of the changes for districts such as CB2 and CB5 is compelling and should be reviewed closely. Their recent survey of CB2 data was conducted mid-pandemic and is backed up with extensive research and data to support its conclusions and which gives substance to its reasoning.As they eloquently state:

“The Program … will make permanent changes to our city’s streetscape, based entirely on an emergency plan whose goal was to temporarily help one industry during an unprecedented global pandemic … “ … CB2 is opposed to sweeping permanent changes to the streetscape without consideration of the best use of the public realm for greenspace, pedestrian access and other public realm or industry uses … the Mayor’s plan utterly disregards critical public safety impacts of roadway cafes and equity issues for residents and businesses all for the benefit of one industry …”“The Proposed Actions represent a fundamental change in that it expands the geography of eating and drinking establishments to the public realm without sufficient study of the impacts …”

“  … Removal of Zoning Resolution text that has been crafted over decades will allow establishments, with and without liquor licenses, in residential neighborhoods to expand onto public property, without limitations in numbers, and where such intrusions were previously carefully controlled or prohibited. The Program would eliminate the existing DCWP’s Sidewalk Café Program’s zoning framework, which over many decades has produced a successful balance between CB2’s commercial and heavily residential uses and removes critical protections for residents.““ … In their recent answers to CB2’s questions, DCP and DOT stated that, ‘sidewalk conditions, not neighborhood conditions, best determine whether a sidewalk café will work or not.’  That is so at odds with the DCWP’s nuanced management of the current Sidewalk Café Program (which also considers neighborhood context) and CB2 questions whether DOT is the appropriate agency to monitor this program. DOT’s low level of enforcement during the temporary program and the lack of accompanying details regarding the size of its proposed “inspection force” adds to our doubts. To do an adequate job, DOT would need stronger enforcement tools than “education.”“ … CB2 objects to the proposed simplified application process that would lower the level of community board review. CB2 supports continuing the current process of community board reviews of sidewalk cafés on an individual basis, as currently exists in the DWCP Sidewalk Café program, and individual reviews of roadway dining setups. “WHY APPLYING A ONE-SIZE-FITS-ALL APPROACH DOESN’T WORK “ … Each community district is different. CB2 is largely composed of mixed-use and residential neighborhoods. Our 100- to 200-year-old buildings were not built to mitigate the negative impacts of bars and restaurants and are complicated and financially burdensome to alter …”“ … The generic EAS that accompanies this text amendment does not take into account variations in the length of a block face from district to district. None of the six prototypes  outlined in the EAS properly addresses the unique neighborhood character of CB2. We would seem to fall into Prototype 1 (P1) with its narrow street and sidewalks, but P1 is marked by only medium restaurant concentration and CB2 has one of the highest restaurant densities in New York. ““ … In terms of density, even Prototype 6, the restaurant street scenario that envisions as many as two sidewalk cafés and four roadway cafés per block face (for a total of six), does not properly reflect the number of sidewalk and roadway cafés already on the streets of our district during the Temporary Open Restaurants program. Carmine, Sullivan, Thompson, Mulberry, West 4th, Cornelia, MacDougal, West 10th, Mott, Kenmare, Laguardia and Christopher are but a sampling.”“ … The text amendment proposes no limits on sidewalk and roadway density per block face. Furthermore, the text amendment proposes no limits on the number of outdoor seats as a percentage of indoor seating in either sidewalk or roadway cafés. For example, currently, many restaurants and bars have outdoor seating capacity in excess of their indoor seating.”

CB5 agrees that the Program’s granting of “as of right” privileges to bars and restaurants, replacing the long-time zoning limitations, will result in an entirely new environment leading to a “crush of applications” (16). CB5 agrees with the criticism that there has not been adequate study devoted to the environmental impact of these major changes, as well as the idea that the new regime, as construed with the proposed changes, does not allow the case-by-case, neighborhood-specific review and due diligence that was part of the DCWP and Community Board role in the prior system and the sentiment that an amended “one size fits all” approach to granting licenses cannot work.  However, it should still be possible to maintain the critical role of community board review and due diligence if the regulatory schema is ultimately changed during this comment process to keep, if not strengthen, the role of the community boards. And, the City must be pressed to devote the resources necessary to conduct the environmental impact research adequate to the task, and to create a new administrative team that is equal to the goals in making this program successful and worthy of its ambitious scope. CB5 also believes, after hearing testimony and evidence concerning the Program, that its potential advantages in opening up the entire City, including large stretches of the outer boroughs that were literally “zoned out” for decades of any possibility of sidewalk or roadway cafes based on obsolete zoning considerations amid a changing City, and an administrative and legal structure that made applications problematic or virtually impossible for businesses except at great cost and effort, make this a challenge worth attempting (17). Therefore, we cannot agree entirely with CB2 in its conclusion that this current effort should be opposed. All effort must be made to “reform” the system given the opportunity we have now. Such opportunities come along rarely -- and this one is only before us at this time because of the once-in-a-century pandemic that has, in an emergency situation, shown us the possible benefits of such a program.  

In that hope, this resolution will showcase all the concerns that have come to the attention of CB5 that need to be addressed to meet this challenge.

Structures

• CB5 agrees with the concept of starting with a clean slate as is made clear in the Program and Design Guidelines: The amended New York City Council legislation text states that all the structures and outdoor dining granted by the 2020 City Council emergency outdoor dining bill are revoked—this means a clean slate for design, function, and terms of all Open Dining going forward, both sidewalk and roadway. Nothing will be grandfathered in (18).
• Therefore, CB5 would like outdoor dining structures to be integrated into the streetscape aesthetically and organically, instead of isolating diners from the space around them as has been observed in the emergency period. The goal of the Program and Design Guidelines should be to promote and integrate the cafes, and resulting streetscapes, so as to enhance multiple uses and a vibrant outdoor community and lifestyle into the city fabric (CB5) (19);
• According to experts (19A) , the post-Covid landscape in NYC, especially in its business districts and nearby  areas, will require an imaginative and flexible re-imagining of our use of the City’s public spaces, and that includes our sidewalks and roadways which are “part and parcel” of the Program and the Design Guidelines.  Getting the structures and their use and regulation is part of this process, and it must be done, and done properly,  with this philosophy in mind.
• Nothing specifies a winter or enclosed dining mandate. This is a chance to define exactly what “Open Dining” is in terms of creating a more vibrant outdoor streetscape, rather than allowing the type of all-weather sheds that were erected to increase revenue for ailing restaurants when inside dining was floundering for COVID transmission reasons. (CB5)
• Generally, CB5 recommends that the Program and Design Guidelines and the Design Considerations should include the following elements: (CB5)
• • Enhance and incorporate into streetscape
  • Safety during inclement weather
  • Safety of structures/positioning for bikes and pedestrians
  • ADA compliance
  • Clear design rules so enforcement is easier
  • Versatile design able to break down quickly
  • Enhanced nighttime safety with lighting
  • Designs need to allow for garbage pickup and rodent control (20)
  • Fire safety
• In addition, and in broad terms, CB5 recommends that the Program and the Design Guidelines should likewise include the following health and safety elements as well: (CB5)
• • Adequate airflow
  • Social distancing
  • Open sightlines for bicyclists
  • Adequate space, access, and clearance for trash and refuse
  • Access to any areas underneath approved furniture, structures, or other objects that compose the street and sidewalk cafes for appropriate cleaning and inspection
• CB5, in their review of street and sidewalk cafes in its district, make note of the following design elements that in its opinion are less desirable (22). These features were observed within the district at many locations during the emergency period, and were reported back to the committee by its members as well as our residents. Of note, some of the structures are entirely enclosed, thereby apparently defeating the purpose of outdoor dining as a public health measure, and do not have posting of signage suggesting or requiring the use of masks. (CB5)
• • Most critically, structures that substantially isolate diners from streetscape rather than integrate them into the outdoor streetscape, such as those that have solid and opaque walls on more than two sides and that have been commonly referred in many cases as “sheds”;
  • Walls composed of opaque, rather than transparent materials, or even walls with windows;
  • Structures containing gates or locks or other doors or entrance ways that turned the structures into storage containers when not in use (23);
  • Structures extending far down the street that tend to overwhelm the block, choking out all other uses and rendering it a single-use zone and block out the perception of open space, light, and air, creating a “tunnel effect” (24);
  • The commonly observed interaction of the structures with bike lanes, as well as dropoff and emergency access areas, i.e., no clear sightlines around structures for cyclists, cyclists are forced either into streets that are already just one lane or have to use the bike lanes that run between curbside dining and the sidewalk that waiters/diners cross unexpectedly. Neither is a safe option (25).
  • An area of concern relating to design is the feasibility of curbside outdoor dining in locations that require crossing bike lanes. In order to meet ADA wheelchair access requirements, there has to be either a raised platform, or ramps from the curb to the ground. Both will force bicyclists into the street. Many crosstown streets don’t have room for an additional marked bike lane in addition to the protected lane at the curb. No solution to this very real problem has been presented to date.
  • The Program allows for the use of outdoor heating according to the following rules - propane heaters are not allowed (28), but electric heaters are acceptable for both sidewalk and curbside cafes subject to meeting appropriate City-wide standards as to power and fire safety; Gas heaters are acceptable on sidewalks only due to safety concerns.  CB5 advises that electric heaters, when  used, should employ electricity from renewable resources wherever possible, and discourage the use of gas heaters for reasons of energy efficiency and climate change..
• And, going on its review, CB5 makes note of the following design elements that in its opinion are more desirable and to be considered as additions to the Program and Design Guidelines. These features were observed within the district at some locations in Open Restaurant structures  during the emergency period, or were written up and reported on in the local news and in many important magazines covering the City, as well as reported back to the committee by its members and CB5 residents: (CB5)
• • Minimal structures
  • Modular in nature, easy to break down or take apart
  • Walls end at planter height, perhaps clear plastic lowerable flaps on 1-2 sides above (at most)
  • Roof, if permitted, to be clear fiberglass
  • Possibly no roof, just simple trellis structure with canvas roll out for shade 
  • Umbrellas only
  • No floor—ramps from curb
  • Floor planks with access panels for cleaning underneath/wire mesh on sides to keep out rodents
  • Specific designated trash pickup area within boundaries of each curb/sidewalk dining area
  • Possible requirement that structure must be broken down and stored during certain designated winter months so not an off-season eyesore, and giving extra space for snow removal deposits.*
  • Appropriate lighting can make dark sidewalks safer and the  block more inviting at night. Lighting can serve as a “beacon”, signaling available open dining locations without signage (signage is not permitted under the new City Council text)(26)
• CB5 views with favor, and approves of many of the initial Design Guidelines that have been discussed and distributed by DOT regarding the sidewalk and cafe structures at the City Council meeting and on its website which appear to contain many of these elements, and address the issues discussed in this resolution. We encourage DOT to continue refining their Design Guidelines and continue the process of review and consultation by the Community Boards and general public going forward in 2022. (A visualization of these guidelines can be seen at this link: https://www1.nyc.gov/html/dot/downloads/pdf/permanent-open-restaurants-brochure.pdf) (CB5)
• CB5 would like to know if there has been adequate consideration by the DOT with utilities on protocols if there needs to be repair work, whether planned or emergency in nature, on cable, gas, water main, cleaning, or maintenance under the street in areas contained within or bordering open dining locations. How would the city ensure that immediate access would be possible if a Cafe installation and related structures must be broken down and removed?
• Nothing at all is mentioned about ongoing COVID considerations: The Open Dining as set forth in the City Council text has no mention at all of social distancing or other COVID-related issues, but it’s generally agreed on by the CDC that there will be ongoing COVID waves, and there will continue to be a sizable subset of the population for whom indoor restaurant dining will be problematic. This is an important “inclusionary” issue for any quality of life guidelines for outdoor dining. The Program and Design Guidelines, properly administered, will allow a safer dining option in the years ahead where COVID may continue to present challenges to segments of the city population (CB5);
• Requiring movable tables and chairs with umbrellas or other overhangs and easily movable flooring will help make sure that this is the case (CB5);
• Generally, all structures making up the Cafes should be of a size (low enough) that they do not interfere with the clear line of sight of drivers, cyclists, and pedestrians, both on the sidewalks and roadways (CB1);
• Reflectors should be a component part of any outer barrier to enhance visibility (CB1)
• The Cafe, taken as a whole, should be safe and accessible for visually disabled members of the community, and wheeled-device-accessible for the disabled. This should include adequate ramps and leveling options for curbside and street cafes as necessary, and suitable clearance and structural support for the visually impaired on the sidewalks. (CB1) (CB5);
• There should be clear marking of the footprint of the Cafe so that all users of the sidewalks and streets can clearly discern the boundaries of the licensed area (CB1)
• Cafe structures should be completely movable and not fixed in place on the streets and sidewalk, and should be wind and weather resistant. (CB1)
• It is expressly understood that the Cafe structures and layout should follow uniform guidelines currently being developed and under discussion by DOT with input by the public and Community Boards, and also conform to relevant fire safety, drainage, lighting, and health and sanitation standards, either existing or to be especially promulgated by the Program. (CB1, CB5)
• CB5 recommends that Community Boards shall have discretion to comment on the aesthetics and suitability of the Cafe License in relation to the neighborhood and its unique and historic character, which is understood to be in addition to and ancillary to the Program’s standards, as part of their traditional process or review of Cafes and public places (CB5);
• CB5  advises that it will develop and employ a review “Matrix” to facilitate and focus the review process for the Outdoor Cafes by its relevant standing committees, of which the suitability and appropriateness of the structures shall be one part. The criteria used by the Matrix shall have as one component adherence by the applicant to the conditions of the Design Guidelines of the Program, but shall have additional considerations as commented upon in this resolution, where seen as necessary by CB5 for its process of review and due diligence. (26B) (CB5)
• Proper treatment of planters must be required in a way that prevents interference of a clear path, aesthetics, or interference with sight lines or space outside of approved licensed area. Pre-COVID, in most of our district, barricades such as planters were prohibited between seating and sidewalks to limit encroachment. Barricades were seen in Open Restaurant structures and installations during the emergency period and used in many parts of our district, including on very narrow sidewalks where they were previously prohibited (27). The Design Guidelines should prohibit this as has been long-time practice. (CB5)
• Umbrellas, pavilions, or similar tent-like structures used in street and sidewalk cafes, based on CB5’s experience, should be a maximum height of 5’9” so as not to vertically obstruct sight lines and clear paths (CB5 and CB1)

Outdoor Cafe Space

• Fee structures as proposed in the relevant local law and regs  ($1,050 and $525 for new and renewal licensing fees for sidewalk and curb-side cafes, with an additional fee for consents for for both sidewalk and curbside cafes to be determined, or as stated in the the relevant local law and regs,  “Consents for sidewalk cafes shall provide for fees to be paid annually to the city during the continuance of the consent. Such fees shall be calculated pursuant to a formula established by rule, which shall apply uniformly to all consents for sidewalk cafes” (See end-note (27a) for citation and summary of fee structure for fees and consents relevant to both sidewalk and curb-side cafes.)  The consent fees, and how they are set, is a critical variable as of now not known in the Program rollout, as this will determine whether the Program will be structured at least in whole or in part in such a way that it will make a real and substantial contribution toward the administration, overhead and enforcement costs of the program so as to make it self-sustaining, and reimburse the City, and its taxpayers, for what is a major private use of a public resource - our streets and sidewalks.  At the February 8 City Council Meeting, the DOT Commissioner Ydanis Rodriguez in her testimony set forth her goals and the standard by which the fees should be judged:“ … Regarding fees, the legislation establishes an initial license fee for a sidewalk or roadway café of  $1,050, and a renewal fee of $525. In addition, DOT and OMB are still determining the revocable consent fee which will be finalized during the DOT rulemaking process. This fee will be based on the location of the restaurant and the size of the space the restaurant will be using for its sidewalk or roadway café. These fees are essential for covering the administrative costs of the program and also to ensure that public space is not given away to private businesses for free. We welcome feedback on revocable consent fees during the rulemaking process. (Emphasis added by ORTF)” (27b)Of concern, the licensing fees by themselves seem quite low relative to the allocated annual cost of the City in dealing with a cafe license application.   In reviewing available public information as to projected DOT Open Restaurant Budgeting as to average annual funding to deal with an application, the ORTF and CB5 notes that at a projected level of 6,000 applications per year for Cafes, which is approximately half of the 12,000 outdoor cafes that have come come on line during the pandemic years, the funding per application is $1,458.76. This is less than the License fee of $1,050 for a new license.  If one views the Consent fees as a mechanism to compensate the City for the use of the public space and prevent a windfall for private businesses, and the License fees as being for the reimbursement of the City and DOT for the cost of administering the Program, this seems unwise and a money loser (27c)And CB5 and ORTF, in addition, are concerned that a landlord could now price out the outdoor space access as part of the value for the storefront rental unless a proper formula is used,The Design Guidelines and the Program must at all costs take care to prevent the inequitable use of public space on sidewalks and roadways for Cafes by coming up with a licensing fee method that disincentivizes Landlords from including the benefit yielded by the additional table and seating space as additional rent. The way to accomplish this is to set the combination of the licensing fees and consent fees as a reasonable percentage of the base rent per square foot of the applicant. The exact fee should be no less than 10% and high enough to accomplish this purpose, and these fees and funds yielded should be allocable to the City as it is public space that is being used. (CB5 and CB1)CB5 urges that The City and DOT be held to the standard that was laid out  by Commissioner Rodriguez as the Program is rolled out and finalized, and that CB5 and its fellow Community Boards be vigilant in drawing attention to this issue. 
• And, see Page 31 of this Resolution under “Budgetary and Environmental Impact” for discussion of one approach to managing fees that could yield a large measure of resources that is a start for meeting the budgetary challenges for The Program.
• Qualifying restaurants should have as a condition of approval indoor, first floor sit-down service, of which the outdoor service is ancillary and can be supported by the main establishment. (CB1) (CB5)
• Outdoor seating should not exceed 25% or some other fair percentage of the indoor seating capacity and area of a prospective applicant so as to prevent the oversaturation of outdoor space on the sidewalks and streets, and also to avoid their monopolization of the street and sidewalk space at the expense of other valid uses. (CB1 and CB5)
• The Design Guidelines should make clear that the use of garbage bags, traffic cones, or any other obstructions to mark off additional street or sidewalk space outside of what they are permitted is strictly prohibited. (CB5 and CB1)
• Sidewalk and road bed space for outdoor dining should be directly in front of the restaurant’s indoor space, with use of the space next to a corner restaurant allowed only if the frontage sidewalk does not qualify for use. (CB5 and CB1)
• All restaurant structures (e.g., tables and all chairs when occupied, promotional signs, etc.) and activities (e.g., lines, wait staff activities, etc.) must be fully within the space licensed from the DOT for Open Dining. (CB5 and CB1)
• The Design Guidelines should allow for discretion by DOT, with input based on comment and hearings and review provided by CB5 and other Community Boards, to prevent the granting of revocable consents and licenses where a narrow street grid and sidewalk capacity make it undesirable for the neighborhood. This is a critical and indispensable requirement of the Program as the changing of the old Zoning scheme requires this to be performed by DOT and the Community Boards acting in tandem. (CB5 and CB1)
• The Design Guidelines, as administered by DOT with input provided by the Community Boards in their review process, must take care that the potential space available in “roadbed space”, or the “parking lane” is fairly and equitably considered for a variety of uses that benefit the public purpose (such as neighborhood loading zones, bike corrals, public bathrooms), as these are public spaces. and are not monopolized by any one use that benefits a private interest. (CB5 and CB1)
• Licenses and renewals should be for relatively shorter terms, so that renewals can be granted upon good behavior or denied for excessive complaints or rule breaking, or to repurpose the space for other uses that benefit the public good. (CB5) (29)
• Any space permitted for outdoor dining should be completely cleared and restored to the public within 30 days of disuse or non-payment. Deposits should be collected and used by the DOT for this task if the permit holder fails to complete the restoration. (CB1, CB5) (30)
• The Design Guidelines and review process as administered by DOT and the Community Boards should take care that historic neighborhoods and their features (sidewalks, street construction) should not be granted licenses inappropriately as would have been forbidden under the old zoning schema (e.g., historic sidewalks with weight restrictions due to distinctive materials such as bluestone or granite or due to subsurface vaults). (CB5, CB1)
• Use of public space:  It would be desirable that there be a planned re-evaluation of the Program given the competing interests for the space at appropriate and reasonable intervals (e.g., bike lanes/pedestrian access/walkways/open restaurant space/parking spaces/traffic lanes). (CB5)
• Lighting associated with the Sidewalk Cafes that shine directly into residential dwellings should be prohibited by the Design Guidelines. (CB5)
• The Program and Design Guidelines should, in the interest of fairness and equity, take into account the interests of street vendors based on the fact that street vendor operators and owners have made use of the streets long before the pandemic.(CB5)

Clear Path Requirements

• Issues related to bike lanes need to be weighed in the Design Guidelines and administration of the program as well as in the granting of any curbside or sidewalk cafe licenses. Critical issues and questions relating to bike lanes are as indicated in this section and below.  (CB5)
• In general, the presence of curbside Cafe structures of various types make the feasibility of protected and open bike lanes problematic, because in many parts of the city, protected bike lanes will only exist in smaller sections on account of being  interrupted by curbside cafes, and the necessity by cyclists to weave in and out of cafe structures with blind spots and possibly into traffic will become the norm unless the overall street and sidewalk layout is carefully considered. It is the considered recommendation of CB5 that this issue must be given more study by NYC and DOT in rolling out the Program and adjusting the Design Guidelines. (31)
• Generally, ongoing conflicts between pedestrians, bikes, wait staff, delivery trucks must be considered. (CB5)
• The placement of curbside and sidewalk cafes and structures in parking lanes that box in bike lanes creates increased dangers including the following potential hazards: (CB5)

• cyclists forced into a narrow lane with obstructed views
• cyclists forced to share narrow, closed-in bike lanes with delivery drivers and others riding in the wrong direction
• pedestrians (wait staff; customers, etc.) trying to access restaurant sheds in the parking lanes
• pedestrians trying to cross at crosswalks from which views are obstructed
• cyclists and drivers unable to see to safely to make turns
• cyclists and drivers whose views of one another are obstructed
• conflict with delivery people when the bike lane is between the sidewalk and the dining area
• outdoor structures that currently obstruct the sight lines and make it hard to make judgment calls about when to cross the street or ride safely
• We would encourage the legislation to require enclosures of no higher than 30 inches for visibility to help address these conflicts.
• When a critical mass of the curbside space is used for outdoor dining or other more permanent structures, we would encourage some language to have the DOT consider relocating the bike lane with the addition of physical protection to the outside of the outdoor dining area so the dining can be right against the curb.
• CB5 suggests that a decisive factor in DOT’s denying an application for a curbside Cafe License and Consent be where there is no possibility of safely moving a bike lane at the requested site.

• Pedestrian Flow and other Clear Path Issues:
• • Pedestrian counts should be taken by the applicant as part of the Review Process where, upon consideration by DOT or the Community Board in pursuing its due diligence as part of an application, the appropriateness or feasibility of the license may be at issue due to heavy usage of the streets or sidewalks in the area envisioned by the granting of a license (CB5);
  • CB5 as a district is composed of many heavily pedestrian, bicycle, and automotive mixed-use areas, and 8 feet of a cleared path is often not enough for some of our sidewalks. The Design Guidelines, the DOT, and the Review Process via the Community Boards must be permitted to exercise discretion on a case-by-case basis where 8 feet is not sufficient (CB5);
  • A minimum width requirement of 31 feet across for streets and 12 feet across for sidewalks should be recommended as part of the regulations unless other clear and convincing local conditions apply in the awarding of curbside and sidewalk cafe applications. (CB2, CB5)
  • CB5  supports the 12-foot clear path for certain designated areas (CB5);
  • CB5 recommends, along with CB1, that a clear path for pedestrians must be the greater of 8 feet or 70% of the sidewalk width and be smooth (no cobbles, subway grates, etc.), level (not slanted or include curb cuts) and not include any obstructions including signs, bus stops, food carts or their customer lines, etc. The Design Guidelines should reflect this concept, or grant discretion that it be used in cases where the application and specific site may require it. (CB1, CB5)
  • CB5 recommends that the Design Guidelines, and any site review for a cleared path, be measured in such a way that it makes allowance for patrons who might push out their seats, instead of measuring the unoccupied space when chairs are tucked in under the tables (CB5)
  • Painted sidewalk extensions should not be included as part of a sidewalk’s width, especially toward the clear path described above, as it can necessitate the constant stepping on and off the curb. (CB5)
  • Any sidewalk width that resulted from a zoning agreement such as a building setback done in exchange for more building bulk should not be included in sidewalk width that could be occupied by a private business, including restaurant seating or its clear path requirement. (CB5)
  • At least a portion of the clear path should be solid versus a surface with any sort of grating such as porous, metallic surfaces, which are not appropriate for wheeled devices or common narrow-heeled footwear. (CB5)
  • The 8-foot pedestrian clear path should be measured with seated patrons (not when unoccupied) on account of ADA accessibility. Relatedly, clear path exemptions for parking meters, traffic signs, and tree pits with flush gratings (without tree guards) may also infringe upon or otherwise impede access and compliance with the ADA and must be taken into account. (CB5)
  • Restaurant food delivery vehicles should not idle in front of a restaurant, nor should bicycles be allowed to ride on or park on the sidewalk subject to the same 8-foot pedestrian clear path limitations (consider safe temporary bicycle space adjacent to sheds);(CB5)
  • It has come to the attention of CB5 that food delivery persons using motorized 2-wheeled vehicles are a continuing potential threat to pedestrians and cyclists. The narrowing of bike lanes and sidewalks (on which many delivery people continue to ride) which may be a result of an increase in street cafes, may only serve to further compound the dangers they create. (CB5)It has been observed in our district that where restaurant sheds were constructed adjacent to the sidewalk and the bike lane was built on the traffic side of the sheds, that even though the bike lane was not protected, it appeared upon observation to be safer for bike riding there than it does in the narrow, closed-in tunnel-like bike lanes created between the curb and the restaurant sheds.(CB5)The substantial increase in food delivery services during the pandemic and its anticipated popularity going forward can only increase bike lane traffic and increase contentious issues. This must be considered in the balancing of equities in awarding curbside cafes under the program. (CB5)

Quality of Life Issues

• Noise and hours of operation and other concerns

The Design Guidelines should establish clear responsibility for the enforcement of noise limits as prescribed by NYC, and budget for suitable personnel for the purpose. (Note: Noise not to exceed 42 decibels when measured from inside nearby residences OR exceed 7 decibels over the surrounding area sound level when measured on a public street 15 or more feet away from source.) CB5’s experience upon review of Cafe applications makes clear the extent of additional noise from outdoor dining and the Design Guidelines, to be successful, must deal with this issue. (CB5)

The Design Guidelines should work to establish and enforce minimum standards for noise for outdoor dining, but also allow for Community Boards to recommend appropriate standards such that for a given site, the NYC standards are a floor and not a ceiling, where necessary,  based upon experience for a given neighborhood at a given site, or upon experience with a given operator and its method of operation. (CB5) 

The Design Guidelines should establish minimum regulation of hours of operation for outdoor dining, but allow for local adjustment where necessary in a given neighborhood upon review by the Community Board in question. The hours for outdoor dining should be limited to 9:00 AM - 10:00 PM Sunday through Thursday and 9:00 AM - 11:00 PM on Friday and Saturday or commensurate with the stipulations with the local community board or its District’s special areas for which guidelines exist, and where necessary the more restrictive standards may apply. (CB5 and CB1)

The Design Guidelines must take care to provide that no music or amplified sound is allowed outdoors including any openings (i.e., doors, windows) that allow indoor entertainment or announcements to be heard outdoors. (CB5, CB2, and CB1)

The Program and Design Guidelines should ideally allow for, as under the prior schema, the restriction of outdoor liquor service as compared to a licensed indoor service through the kind of affidavit-based restrictions that have been customary for outdoor space in CB5’s district and part of its traditional regular procedures for review of liquor licenses and outdoor Cafes. (CB5)

The Design Guidelines and Programs should of necessity call for seated service only in the sidewalk and roadway cafes to minimize issues of noise, crowds, and sanitation. (CB5)

The Design Guidelines and Programs should consider, as a major concern in granting licenses, the nature and method of operation pertaining to any establishment in running the Cafe. Of paramount importance is the number of liquor licenses that may be associated with the outdoor Cafes, as this would be a major consideration in the evaluation of the grant in relation to the neighborhood, the applicant, and the number of licenses already granted. Either these must be accounted for expressly in the Design Guidelines and regulations, or the DOT and Community Boards must have discretion to limit, or advise against, the granting of licenses in a particular neighborhood. (CB5)

Bathroom facilities must be adequate for the restaurant/bar patrons based on all outdoor as well as indoor occupancy limits. (CB5 and CB1)

Curb access for drop offs, pickups, and deliveries must be available for each block. (CB5 and CB1)

Bussing carts and fresh tableware carts should be kept indoors. (CB5 and CB1)

Abandoned/Neglected Space:  What are the City’s and DOT’s policy, budget, and mechanisms for enforcing, and, if  needs be,  dismantling on its own account and maintaining the hygiene and cleanliness in abandoned/neglected "open restaurant" areas?  CB5 has been informed by the BIDs in its district, as well as its board members and residents that the restaurants in many cases will not do the removal of its sidewalk and curbside structures, particularly if they go out of business.  (CB5)

Vagrants/Homeless:  Who do restaurants call if such individuals set up in their space? Will that agency/nonprofit be staffed to handle potential calls and have monies been earmarked for this? If so, how much? (CB5)

Noise/DOB:  Will DOB handle noise complaints and, if so, must they add additional staff? What is the cost of such staffing? (CB5)

Use of public space:  Will there be any planned reevaluation of the program given the competing interests for the space (bike lanes/pedestrian access/walkways/open restaurant space/parking spaces/traffic lanes)?  (CB5)

Use of the applicant's bathrooms by the general public, as well as the right of the public to use the outside seating without an obligation to order under reasonable conditions are examples. (CB5)

The Plan and its text amendments do not differentiate between bars and restaurants. The method of operation pertinent to bars and restaurants as to possible noise, street activity, and hours of operation must be examined on a case-by-case basis given the neighborhood and balance the needs of the businesses and the residents. (CB2, CB5)

The allowance of Open Restaurants as of right as the Program envisions and has taken place during the emergency period gives a unique advantage to the dining and hospitality sector over other types of street-level commerce. This has been documented by tracking Liquor License applications in CB2 over a multi-year period. This can only be expected to accelerate under the Program. The addition of outdoor seating for eating and drinking at a substantial discount may distort commercial rents, and negatively impact other types of street-level retail. The granting of licenses, and their pricing, must consider this impact. (CB2, CB5)

Live music and other entertainment should not be permitted in any outdoor cafe of any type as previously prohibited under the old regulatory schema. This should be carried over and written into the new regulations. (CB2, CB5)

Regarding ZR Sections 33-05 and 43-03: To the extent that would allow sidewalk cafés on widened sidewalks, and to the extent that bonus FAR was part of a deal given to the developer in return for widened sidewalks, CB2 recommends that further givebacks in the form of sidewalk and/or roadway cafés should not be permitted. CB5 agrees with this sentiment unless as part of the application and duly considered by the neighborhood at a public hearing, strong evidence otherwise is presented, and is supported by local residents.  (CB5, CB2)

Require restaurants to submit as part of their application to DOT for their roadway seating a review of their relationship to street and sidewalk amenities and how they will be maintained. (CB2, CB5)

A Positive Example and Model - The Broadway Corridor   CB5 has always taken a strong position on behalf of the public in balancing the interests of public versus private in the use of what is clearly public space; namely, the streets and sidewalks which in this case are being given over for commercial use to restaurants. Therefore, we recommend that the City and DOT, in administering the program, should consider conditions for the licenses and revocable consents that would balance the equities in this case, such as the use by the general public of the Licensees’ structures, amenities, or tables on reasonable terms. (CB5)With this in mind, CB5 would like to call attention to one coordinated effort to balance these interests in a positive way that attempts to build on the successes of the Open Streets Program and acts to reasonably implement and take into account many of the quality of life, clear path, structural design, rational use of Cafe space, enforcement, sanitation and health, and Community Board input factors outlined in this Resolution.The “Nomad Piazza Popup” in the Broadway Corridor between 25th and 27th Streets in CB5’s district represents an effort by DOT and an experienced neighborhood operator, the Flatiron 23rd Street Partnership, a BID that knows the neighborhood well, to build an integrated streetscape that is apparently conceived and implemented according to a  plan that treats the many aspects of the streetscape - bikes, cafes, pedestrians, traffic, cafe structures - as an integrated whole, and not just a series of ad-hoc, individual cafes thrown out pell-mell without any overall scheme.The Flatiron 23rd Street Partnership, a “Business ImprovementDistrict” (BID) with extensive experience in managing open public street space in the area (see the Flatiron Public Plazas) operates those under contract with DOT; it has the confidence of the neighborhood stakeholders based on a proven history of good management. Critically, the Flatiron BID has a well-established history of appearing before the Community Board to solicit feedback and comment, and in also engaging the neighborhood and public in its design and use of public spaces.A recent walk through the two-block section of the Broadway corridor reveals careful consideration as to the mix of sidewalk and street-side cafes, their placement and furniture, and the offering of public amenities (additional public seating as well as public programs and attention to sanitation and good design).  The BID has closed off thru-traffic for the two block section of Broadway from 25th through  27th Streets, creating plenty of room for pedestrians to access both sidewalk and street-side cafes. The BID has wisely mixed in public seating alongside the roadside cafes, creating a vibrant, blended street tapestry. The bike lanes are, critically, not bordered or constricted in any way in this two-block area by the cafe seating. And a decent portion of the sidewalk on the east side of Broadway is mostly clear of any Cafes, leaving plenty of room for pedestrians.  The only negative point upon examination is that the “sheds” which are a focus of criticism by the public are still evident, but in theory those will be eliminated and replaced as the new Design Guidelines and reissuing of the licenses go into effect as planned, to be replaced by umbrellas, tables, and chairs and other open and movable elements. Pictures of the area can be seen at this link. (34A) 

In addition, the BID offers cleaning and social services that can help sustain this outdoor space. By some accounts, this effort has met qualified success in the neighborhood by both residents and business, to the benefit of all. (34)  This kind of careful, coordinated effort with proven, experienced, and knowledgeable operators is what is needed for the Open Streets effort to succeed on a sustainable basis, and should serve as a model both in the District and across the City.

Enforcement

• CB5 wants consistent and transparent enforcement of siting and design regulations. This should include budgeting and staffing for personnel to monitor and check compliance for any and all violations. A dedicated “Open Restaurants Enforcement Unit” should be created and managed operating out of DOT with consistent and reliable revenue streams.  (CB2, CB5)
• The process for enforcement against violators and bad actors must be strictly enumerated in the Program with clear penalties and remedies to be applied. (CB5)
• The process timetable for “bad actors,” i.e., if someone is blatantly in violation of the Program and Design Standards – for example, later-than-permitted hours, not keeping the area clean hence significantly increasing chances of vermin, violation of clear view and sidewalk throughput -- must be speedy and consistent. How many “warnings” would they get and how easy would it be for the relevant city agencies (DOT going forward) to pull the License? This has been a substantial problem as observed during the emergency period (29). (CB5)
• A priority should be given to the enforcement of ADA standards as required by the Program and Design Guidelines for the visually inspired, the hard-of-hearing, and for those employing wheelchairs.  Proper enforcement, as well as design, is critical in allowing all City dwellers to benefit from the Program.
• Outreach & Dispute Resolution:  Public outreach and dispute resolution mechanisms are important here. People who live in buildings with or on blocks with lots of restaurants need to feel like their concerns are heard and acted on.  For example, if a building drops a scaffold for LL11 and a restaurant's open space is affected, what happens next? Does DOT immediately mediate or does this become a lawsuit?  (CB5)
• At the start of the pandemic, the enforcement by the SLA and the appropriate revoking of indoor SLA licenses was done rigorously to take them away from bad actors. We would like to see a similar level of enforcement for outdoor dining regulations. (CB2, CB5)
• A DOT contact should be available to monitor complaints about rule breaking so they can be made in real time during Open Restaurant hours plus another one so that rule infractions and problems can be made and addressed as feasible. (CB5 and CB1)
• Multiple options for making and receiving complaints should include 311, but also DOT social media, the DOT website, and other potential options. (CB5 and CB1)
• All Open Restaurant permits should be posted online with boundaries and any stipulations given. (CB5 and CB1)
• Canceled or non-renewed licenses for street or sidewalk Open Restaurant space should be made public. (CB5 and CB1)
• Businesses with outdoor dining space should pay a deposit that the DOT can use to remove or clear any structures that have been abandoned or are in an unsafe condition or position. (CB5 and CB1)
• All structures should be removable with 30 days’ notice. (CB5 and CB1)
• Music or television that is carried over outdoor speakers or live performances should be limited in accordance with the stipulations that the establishment created in concert with the local community board. (CB5 and CB1)
• The extent of 311 complaints in CB5’s districts can be seen graphically in these images from the SLA’s “SLAM'' Application. The volume of complaints are spread throughout the district consistent with the large number of SLA authorized liquor licenses granted, and now augmented by the the presence of self-certified Open Restaurant sidewalk and curbside Cafes.  (See images from SLAM “Open Restaurants v 311 Complaints.jpg”, “CB5 SLA Licenses.jpg” and “CB5 Self Cert  Open Restaurants.jpg”) (33)

Sanitation and Health

• Vermin: Does the Department of Sanitation have to add more staff to combat vermin due to open restaurants? How much will this staffing cost? How will vermin issues be monitored? (CB5)
• Containerized trash receptacles that sit on the sidewalk would help ensure that the sidewalk remains clear and we avoid issues with vermin. (CB5)
• The Department of Health should include all outdoor dining areas, including the presence of vermin and trash in the immediate area, in a restaurant’s rating grade. (CB5 and CB1)
• Restaurants and bars with outdoor seating should have a vermin mitigation plan that includes dealing with the outdoor dining space as well as the area where their garbage is placed outdoors for pickup. (CB5 and CB1)
• Restaurants with open dining adjacent to a bike lane or buffer should keep the area adjacent to their space clear of debris.
• It should be the responsibility of businesses to keep storm drains within their licensed outdoor dining area clear, especially during rain or snow events to prevent ponding and flood conditions.
• Plan for placement of trash so that it does not impede the pedestrian path adjacent to the licensed outdoor dining space or immediately next to it.

Community Board Review - Sidewalk/Street Cafe Applications

• Competing use of public space - Community Board Review
• • The Program and Design Guidelines must maintain for CB5 and other Community Boards their traditional role of review and weighing the competing interests in the use of our sidewalks and curbside cafes. This is particularly important as the change in the zoning laws will result in a large increase in applications and licenses. Our districts only have so much curb space and it is important to establish a concrete hierarchy of needs in order to make decision-making easier in the future when, for example, deciding if a bike lane, bus lane, extended bus stop, or a loading zone or something else should take priority over outdoor dining. The impact can be seen graphically by examining the State Liquor Authority’s “SLAM” application and website which catalogs the placement of Open Restaurant self-certified licenses as compared to traditional sidewalk cafes granted under the old licensing schema in CB5’s borders (See “CB5 Cafe LIcenses.jpg” as compared to “CB5 Cafe LIcenses.jpg”) (32)  (CB5)
  • Outdoor dining may be better than free curbside parking, but in order to weigh it against other public benefits the process of community board public review and due diligence, and where necessary, community meetings and public hearings, must be maintained for both sidewalk and street Cafes in consistent form and manner. (CB5)
  • The Program, after current amendments to the public law recently enacted under Local Law 114 of 2020 calling for a permanent Open Restaurants program, and as part of the process for applicants to obtain relevant licenses and revocable consents set forth the following procedures and timetables for notice, review, and comment on sidewalk and consent applications by community boards as follows (32b): “ … In the case of sidewalk and curb-side cafes,  DOT shall forward to the community boards, within 5 days of receiving the petitions for the consents, copies of the consent petitions to the community boards.  The community boards then have 30 days for providing approval, disapproval, or offering opinions on the applications rendering with respect to such either comment or no comment as the case may require after CBs hold their own hearings.”“ … Where the City Council can take a vote to consider on its own the consideration of the application for a consent or license, the period of review is set at 20 days, allowing for what appears to be even a shorter time frame for community board review.”These notice periods, which in most cases will be in advance of public hearings to be held by DOT, at which the applicant does not appear, and presumably at which all comment, including that of the Community Boards, is gathered as part of an ultimate decision.  As far as can be ascertained, DOT will not conduct the kind of local due diligence and affidavit and stipulation based negotiation and community involvement by all local stakeholders that takes place as community boards as part of their review process.The notice periods, based on CB5’s experience, makes doing sufficient due diligence and review difficult, if not impossible. Nor does it take into account the fact that during the summers, the community boards often do not meet on a monthly basis so as to be able to take up the consideration of the petitions on licenses and consents.According to one of CB5’s members who was present at the recent City Council hearing, it seemed clear that DOT’s senior staff in charge of managing the Program and Design Guidelines were resistant to giving any more deference in terms of notice period, nor were they appreciative of the board’s problems of review overall relating to timing and other concerns. This is misguided and should be rectified, as DOT should welcome as much support and help it can get by the community boards, especially given the crush of applications that will surely be arriving, and the general skepticism as indicated in the local press and in many quarters about their ability to fulfill the need for review. (CB5)The DOT Commissioner, Ydanis Rodriguez, testified at the February 8 City Council Meeting on Open Restaurants as follows with regard to Community Board Review:“ … It will be a simpler process for restaurants than the old sidewalk café program, but will still require community board review for sidewalk cafés, and notification and a public revocable consent hearing for roadway cafés. (Italics added by ORTF ) By expanding the program to restaurants in all parts of the city and providing a new roadway seating option, the program will particularly help businesses in low income neighborhoods and communities of color.” (32C)This statement is telling as it seems to imply that DOT does not envision full community board review for the roadway and curbside cafes as it does for the sidewalk cafes.  But, to the residents and neighbors of these cafes, whether in the street or on the sidewalk, the Cafes will appear to be part of the same functional establishment and license application as to noise, crowds, hours of operations, and other similar issues that arise in due diligence.  DOT should allow the community boards to pursue their due diligence, on behalf of the neighborhoods they represent, in equal fashion with respect to sidewalk and curb-side cafes, and change the proposed rules and regulations to make sure that is the case.There was mention at the Council Hearing and in the press that the DOT lawyers say that, for legal reasons not specified, it must be done differently for roadside and curbside.  But at this time of major reform, that is not good enough—this is the time to reform the system so that it takes care of any such inconsistencies in the new regulatory schema.The relatively short notice periods and time to respond by the community boards makes no logical sense as the actual operation and impact to the community by the Cafes will be substantial.  The City and DOT must review and revisit this issue or risk forfeiting support and courting substantial neighborhood dissent on the granting of the licenses and consent before taking into account the views of all the neighborhood stakeholders.  Maximal support by the City and DOT concerning the effectiveness of the community board review process, especially given the crush of applications that will be forthcoming under the new regulatory schema envisioned by the new laws and Design Guidelines, is imperative.
• Notice periods
• • CB5 believes, as noted previously, that the notice periods envisioned by the Design Guidelines as presented are too short to allow for effective review. Long experience makes us aware that dealing with the necessary outreach to neighborhood stakeholders, scheduling of hearings, background checks, and possible negotiations among residents, applicants, and block associations takes time well in excess of the 30 or 20 days mentioned in the changes under discussion. DOT and the boards will be overwhelmed during the first few months when all the businesses are reapplying. Therefore, these sections must be reconsidered and changed where necessary. (CB5)
  • CB5 as previously mentioned, is concerned about the clause that states with “at least” 20 days notice the “​​the department [DOT] will give notice to the community board”. Typically “at least” becomes the expected time, and we don’t believe that 20 days is enough to inform the community and get their feedback on the proposed curb-side dining.
  • State Licensing and Permits Committee gets 30 days of notice to do all the necessary work, and that is already difficult between reaching out to residents and doing site visits. (CB5)

Continued Community Board Input, Participation, Representation at Public Comment on the Design Guidelines Proceeds Through 2022

• CB5 believes it is of critical importance that the Community Boards continue to have a role in the evolving public discussion that was discussed at the City Council hearings and to make sure that their role in the review of outdoor and roadside Cafes can be continued in the newly envisioned Design Guidelines as they are finalized. As already noted in this Resolution, the constructive suggestions and comments in the areas of notice requirements, flexible standards as to hours of operation, Cafe design, capacity, footprint, and aesthetics, and others mentioned must be included in the new Design Guidelines so as to allow the flexibility to serve the diverse neighborhoods of the City. The coming surge of applications for Cafes, many in areas of the city that have not seen them before, requires that this process be thorough, fair, safe, and considerate of all the community’s stakeholders in order to succeed. (CB5)
• The public engagement process should specifically list community boards, which are not currently included, on the DOT website.

Licensing Process and Related Issues

• Duration of Permits (Licenses and Consents) and the ability to monitor adherence to the Design Process and new schema is critical for the success of any new program, as the emergency period revealed substantial issues in this regard. (CB5)
• The Program’s equity with regard to who is granted licenses, the relative ease and difficulty of the application process, the fee structure language, the necessity of lawyers, and the need for architects will determine the business community and the public’s buy-in on the program, and must be evaluated. (CB5)
• The legal specifics of the license and revocable Consent granted must be explained. Will the permits be personal to an owner, for a specific restaurant business, or for a specific physical space? Will the licenses be transferable? The details will be critical in the perception of equity and effective operation of the Program and must be explained to the business community, the public, and the Community Boards. (CB5)
• As mentioned elsewhere in this report, the review process for the Program and decision making by DOT under the new regulatory and administrative schema must allow for weighting and balancing of equity in the awarding of licenses and consents, thereby addressing the inequality of outdoor space by location; for example, where one restaurant has open space in front of it, but another happens to have a bus stop in front or some other limitation that makes an application problematic, or in the situation where restaurants apply to use adjacent street space in front of vacant storefronts.
• The consideration and impact of liquor licenses in the equitable and appropriate awarding and management of sidewalk and curbside cafes by the Program is an area of concern. A key question regarding liquor service will be whether the law will continue to allow for restriction of outdoor liquor service as compared to a licensed indoor service through the kind of affidavit-based restrictions currently used for rooftop and sidewalk Cafes. In short, what will be the impact of the presence or absence of Liquor Licenses being extended to the outdoor space? It might well be the case that the granting or commenting on the Liquor License when doing due diligence with the presence of these outdoor areas will be a critical factor in allowing them for specific neighborhoods. How will that be handled? Will DOT, or the regulations, even mention that issue, which is local and specific to each establishment and the neighborhood in which it resides? Is it possible that the outdoor spaces wouldn't merit applications if there are no liquor licenses permitted with the licenses granted? Has anybody thought this through in the new program? And one must also consider the impact of late hours of operation (2AM-4AM) on the suitability and appropriateness of the license.. (CB5)
• Liability:  If the program is later rescinded by the city for whatever reason, or if the program is materially changed and the “value” of the permit changes, does the city have any liability? We are thinking specifically of issues with the taxi medallions.
• As a general proposition, the Program should envision some kind of public review process with respect to an application both before and after a license is granted to allow for a judgment by the community of the suitability and fitness of the Cafe, especially given the fact that environmental impact has not, to date, been addressed in many respects; and whose whose extent and scope is the subject of broad debate and on-going litigation. (CB2 and CB5)

Budgetary and Environmental Impact Issues

• CB5, in its review of the commentary from its fellow Community Boards, the information in the press, and from attendance at relevant hearings with DOT and DCWP, has noted the relative absence of any substantial environmental impact studies by City agencies. The CB2 report is scathing in noting this absence.  There are myriad aspects of the Program and its exponentially increased impact on the use and allocation of the streets and sidewalks that will certainly result from the changes to the zoning and relevant local laws, e.g., impact on commercial and private car and truck traffic, pedestrian activity, noise, sanitation, public safety, and many other areas. (CB5)While CB5 notes there is a general consensus among the public and many of our peer Community Boards that as an emergency measure, the Open Restaurants effort has been a qualified success, there is clear and convincing evidence that its continuation as a permanent measure as proposed has engendered substantial controversy and outright opposition. (CB5)
• CB5 notes the many anecdotal articles in the local press, comments by its district residents, and commentary at the hearings addressing major concerns about problems related to the program that arose during the emergency period dating from the inception of the pandemic in early 2020 when the Open Streets program was implemented to the current date.
• Again, CB5 takes note of CB2—a district similar in many ways in composition and density of outdoor dining to CB5—whose excellent report and study tracked in highly granular form complaints, licenses, and relative activity on all these areas of concern. (Em dashes make it clearer that “whose” refers to CB1, not CB5)
• CB5 calls attention to the considerable skepticism that, based on its singular characteristics as a traffic and street management agency, DOT can actually build from scratch an administrative structure dealing with the highly specific and particular outdoor Cafe process, which is much more based on restaurant and hospitality industry methods with its own specialized mix of skills and management approaches. (CB5, CB2)
• CB5 also takes note of a recent important New York State Supreme Court decision (“The Nervo Decision”) brought by opponents of the Program that only serves to emphasize the need for greater attention to the substantial environmental impact of the the Program, and calls attention to the inadequacy of the research done thus far by the City and DOT in taking the decision to roll out the Program.  The Nervo Decision starkly notes that DOT’s issuance of an environmental assessment statement concluding that the Program would have no significant effect on the environment was, according to the Court’s order, in violation of the State Environmental Quality Review Act’s (“SEQRA”) requirement binding upon City agencies that any such conclusions as to environmental impact not be decided  “ … by an error of law or was arbitrary and capricious or abuse of discretion” (the standard to be applied under the law). A type 1 action under SEQRA requires a relevant City agency to include environmental impact for programs that include as factors noise, traffic, parking, sanitation and neighborhood character. The Nervo Decision outlined its reasoning in broad terms, annulling the original declaration of no impact by DOT, and ordering them to complete an environmental impact review under SEQRA, granting the Program’s opponents a clear victory.Therefore, for all these reasons, it is CB5’s recommendation, and critically important for the successful operation of the Program and its acceptance by the wider public, that the City, and DOT as the relevant agency succeeding to the management of the Program, allocate the necessary attention to the environmental impact of the Program by way of related studies equal to the scale of the Program as it progresses, including a full-fledged Environment Impact Statement.
• CB5 also calls attention to its serious concern about whether or not  necessary budgetary resources are being put in place to administer and police the Program going forward.  CB5 has reviewed publicly available data supplied to ORTF with the assistance of the IBO, an independent non-profit that analyzes the City’s budget on a macro level, that shows that budgetary allocations for the new DOT-led schema for years 2022-26 appear to be at an approximate level of 76% of past DCWP funding that dealt with an admittedly smaller program, according to one reasonable method of analysis. (See again (13))  Furthermore, Open Restaurant funding for 2 ½ years going forward from 2023 is scheduled to be paid out of one-time only COVID emergency funds made available by the Federal government that will sunset at the end of that term.  Without a dedicated funding source provided by adequately priced permitting and consent fees, the City and DOT may of necessity be driven to draw on funding out of the general budget, or possibly cut or skimp on critical services such as administration and enforcement.  Will future administrations plead poverty, as has so often been the case in dealing with our public spaces, with an Open Restaurants program without the support it needs to succeed?
• CB5 also takes note of a recent budget analysis (33B) prepared by the IBO that, apparently based upon reasonable assumptions, shows an approach that could allow the City and DOT to generate substantial revenue to support the Program on the scale necessary. Using the 2018 DCWP consent fee schedule for both enclosed and unenclosed cafe structures, as well as assuming the current 2022 Open Restaurant cafe license level of approximately 12k, and also assuming the figures noted at the City Council hearing of $1,050 and $525 for the license fees, and adjusting for inflation, it may be possible to collect revenue to the City of approximately $200 million.But, will the City and DOT actually follow through on these steps,or other comparable ones that have been mentioned to date in the public discussion,  to generate revenue on a scale that will support the Program and the enforcement and policing that will be necessary?  It is critical that the raising of these funds, and their proper deployment to DOT’s new administrative structure given the scale of the Program going forward, be done effectively.
• And it must be said, with the anticipated rush of applications, it is fair to ask that some consideration be given to the community boards capacity to handle their role of review without additional resources?
• It may be a “bridge too far” to roll out the program without taking into account all these factors, and the critical data in hand so as to make the right management decisions. In short, what will be the impact of enforcement of management, enforcement, and regulation overall on the City budget in terms of revenue and expenses?  To wit, CB5 calls attention to the following questions: (CB5)
• Overall Cost of Program:  What does the City estimate will be the overall cost of this program to taxpayers (enforcement costs, etc.)? Income from Program:  Is there any expectation that this program will add revenue to the city coffers?
• Loss of Revenue:  Will the loss of revenue from parking materially impact the income picture, as curbside parking is given over to curbside cafes?  Will the loss of parking space on account of curb-side cafes and related parking fees be a net loser as compared to license and consent revenue?
• Unintended economic consequences: Do we understand the unintended economic impact of launching Open Restaurants? For example, there are restaurants that have doubled their available covers through outdoor dining. What does that do to future rents and to the asset value of the real estate? Do we expect to see more restaurant conversions, fewer, or no difference?
• Collateral Consequences: Does the program have any negative impacts on the provision of city services and, if so, then how will such negative impacts be addressed? We should look to current liquor licenses and taxi medallions for best (and worst) practices.
• Enforcement Budget:  How much will it cost to add additional staff to DOT to handle enforcement of regulations and how many staff need to be added?
• Abandoned/Neglected Space:  As mentioned earlier in this resolution under “Budgetary and Environmental Impact Issues”  what is the policy, budget, and mechanism for dismantling and/or maintaining hygiene and cleanliness in abandoned/neglected "open restaurant" areas, and are adequate budgetary allocations being made for the City and DOT to perform this function?.

Collection of Data: The collection of relevant data for the Program should be given priority, That should include specific tracking mechanisms through 311 and related avenues of data collection for DOT to report on trending issues; DOT should work in tandem with the Community Boards and other agencies to showcase relevant data (e.g., this excellent column chart showing total Open Restaurant Applications by Community Boards, which shows CB5 in third place overall. (34B).

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