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Manhattan Community Board Five

June 2023

Manhattan Community Board Five Letter with Comments on Draft Legislation for the Permanent Open Restaurants Program.

June 8, 2023

The Honorable Carlina Rivera

New York City Council

254 E 4th Street

New York, NY 10009

Re:  Manhattan Community Board Five Comments on Draft Legislation for the Permanent Open Restaurants Program.

Dear Councilmember Rivera,

Thank you for the opportunity to further comment on the Open Restaurants Permanent Legislation now under consideration by the New York City Council. Earlier in the comment and legislative process, Manhattan Community Board Five (“CB5”) reviewed and commented, by resolution, on the Open Restaurant Program and has now reviewed the draft legislation. 

CB5 would like to go on record with both its areas of approval and support, and the remaining areas of concern about the proposed legislation’s final version. These are summarized below, first listing areas of support:

• CB5 supports making permanent the emergency program on the more equitable and widespread basis of  this legislation, opening large sections of the City to the benefits of outdoor dining. This was listed as a goal by CB5’s earlier Open Restaurant Task Force Report and related CB5 Resolution. 
• CB5 supports the permanent legislation sections that specifically call for the outlawing and removal of the so-called sheds and other unsightly and unsanitary temporary structures by appropriate enabling statutory language.
• CB5 supports the language calling for the use of lightweight movable structures including tables, umbrellas, and chairs and other necessary structures that are consistent with the designs and diagrams that CB5 called for in its earlier resolution and was shown by the City during the comment process in place of the temporary structures, (“the Sheds”).
• CB5 supports the legislations’s sections and schema allowing for Community Boards city-wide to fulfill their traditional responsibility for review and due diligence on a neighborhood-by-neighborhood basis with respect to outdoor cafes and dining, including a notice period to allow for adequate hearings to take place (40 Days for both Sidewalk and Roadside Cafes), as well as to allow for a process of negotiation in the form of stipulations and affidavits on the part of CB5 and the applicants. 
• CB5 supports the outdoor smoking provisions that have been revised to make clear that outdoor smoking in the sidewalk and curbside areas is prohibited so as to be consistent with the prohibition for indoor dining. 
• CB5 supports sections that confirm explicitly that this will be a seasonal program running from March 31st to Nov 30th and changes the status of full year outdoor dining that had been allowed during the provisional stage of the Open Restaurants Program.
• CB5 supports sections that confirm that the New York City Landmark and  Preservation Commission  (“LPC”) has a role in determining whether the granting of a license and consent and ensuing Cafes are suitable given the nature of its impact on designated historic structures and their exteriors, and that the permanent schema allows for the calling of a hearing on notice (10 days) to present this determination as part of a public review process.
• CB5 supports sections that largely limit the size, scope and impact of licensee advertising on the structures, tables, and other equipment that will be employed by the Licensees in deploying their outdoor sidewalk and curbside cafes so as to avoid commercialization of public space. This is consistent with CB5’s efforts in the Public Realm.

While we applaud the changes to this legislation to reflect previous comments by our and other community boards, CB5 still has significant areas of concern: 

• CB5 reiterates its concern as to the appropriateness of the selection of the New York City Department of Transportation (DOT) as the agency given major responsibility for managing the permanent program under the Law. As related in CB5’s earlier resolution on the matter, this is based on 

1) the DOT’s lack of experience in managing long-term what is, in fact, an adjunct of the dining, restaurant and hospitality industry, 

2) the pronounced safety, sanitation, and proper management and enforcement issues that arose during the period of the temporary emergency phase of the Open Restaurants Program, and 

3) questions about its ability to coordinate successfully with other City  agencies that will be involved in the process;

• CB5 expresses its concern as to the legislation’s schema concerning the “Sector Rate Schedule” and whether it has the granularity to reflect fair market value for permit and consent fees. We question whether the mechanism of “Average Market Rate” in the four sectors called for under the Law properly takes into account the price variance of individual neighborhoods within each Sector, resulting in a failure to capture a fair return for the City and public for use of the public realm. There is also no mechanism to recapture the increased rent charged by the Landlords owing to the use of the public space, which was a concern in CB5’s earlier resolution on this matter. 
• CB5 expresses its concern regarding the set hours of operation as they limit the ability and discretion of the Department of Transportation and the Community Boards to balance operating hours with what is suitable to specific neighborhoods during the review process. The Hours of Operation do not match up with CB5’s prior resolution on this matter, now calling for 10AM thru 12 AM  daily, not 9 AM-10PM Sunday-Thursday and 9 AM-11 PM Friday-Saturday as would be more appropriate. Nor is there any exception based on specific neighborhood conditions, effectively tying our hands.  CB5’s concern is that the legislation does not allow for any flexibility in those areas already saturated with cafes that are mixed commercial/residential, which represents much of the CB5 area. 
• CB5 express its concern that the permit and consent fees listed may not generate enough revenue to support the schema and the administrative, staffing and enforcement overhead of the permanent program, especially given the withdrawal of Federal pandemic funding. This was a major concern in CB5’s Task Force Report and Resolution, and it remains a concern now, especially given that the law makes no reference to, or requirement for, a comprehensive Environmental Impact Statement (EIS). An EIS was called for by CB5 and its peer Community Boards to shed light on these critical needs. The absence of language to call for such a report is a major shortcoming of this legislation. CB5 again calls for an EIS, focusing on a  neighborhood-by-neighborhood basis, with issues to include auto and pedestrian traffic, noise, sanitation, outdoor café over-saturation of neighborhoods, parking, and ensuing enforcement related funding needs so as to help assure the success of the new permanent program.
• CB5 expresses its concern that a four-year License period is too long, especially given that the program is new and developing and, should problems arise in the neighborhoods during the term, there should be more of an opportunity to revisit the issues of operation specific to the neighborhoods. CB5 recommends that the License period should be two years, which is a term more in line with other licenses.

In addition, CB5 Strongly recommends, acting in accordance with the suggestions of the Task Force Report and previous Resolution, that in return for the substantial benefit of the use of the public realm in the form of the sidewalks and curbside areas, often at the expense of other valid public uses, the licensees be required to give back amenities for public use in addition to the fees for the licenses and consents.  CB5 is on record as being in agreement with its peer community boards that additional amenities, such as the use of establishment bathrooms for the general public according to fair rules, is a reasonable step for the licensees to take to give back to the Community. This should be referenced in the legislation. 

Thank you again for your request for feedback on this important program. CB5 will continue to closely monitor the progress of the effort and legislation, and, as always, will be ready with constructive comments in furtherance of that effort.

Sincerely,

Vikki Barbero

Chair, Community Board 5