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Land Use, Housing & Zoning

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.


Outdoor Cafe Space

Clear Path Requirements

Quality of Life Issues

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.


Sanitation and Health

Community Board Review - Sidewalk/Street Cafe Applications

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

Licensing Process and Related Issues

Budgetary and Environmental Impact Issues

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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