Jacob Siwak entered March of 2020 optimistic that his pasta-centric Italian restaurant, Forsythia, would open in Manhattan’s Lower East Side by Memorial Day Weekend. By the end of that month, NYC was in a state of lockdown, and the city had prohibited indoor dining indefinitely. Siwak and his team had to pull a fast pivot. And if it was going to sustain its 23,000-plus restaurants and the 300,000 workers they employed at the time, New York was going to have to move quickly as well.
To allow restaurant owners room to maneuver during the early months of the pandemic, NYC relaxed its rules around sidewalk seating and permitted business owners to temporarily erect outdoor dining structures in the curbside parking lanes in front of their establishments. By June, thousands of restaurants across the city were participating in the Open Restaurants program, and the outdoor dining structure — “dining shed,” “roadway cafe,” or “streetery,” if you want to be obnoxious about it — became a fixed part of the NYC landscape.
Siwak took full advantage of the program when he finally opened Forsythia in October 2020, first by erecting a simple dining shed and later by replacing that with a fully enclosed street-side dining room that included 20 seats, tasteful decor, and air conditioning (total cost: $65,000). “It was very obviously a lifeline for us,” Siwak says of the program. “It was April of 2021 when indoor dining was allowed to come back, so that’s like seven or eight months where we were literally only serving outdoors. We wouldn’t have been open without it.”
For Forsythia and many of the other 12,000 restaurants that have constructed roadway cafes across the city, the outdoor dining structures and the additional capacity they provide are baked right into their business models. So when NYC Mayor Eric Adams signed a new set of outdoor dining regulations into law earlier this week that will officially replace Open Restaurants, reactions within the industry were understandably mixed. While the new law will expand and ease access to sidewalk dining permits and make roadway dining structures permanent — if seasonal — fixtures in the NYC landscape, it will only allow those structures from April through November, creating a new financial burden for restaurateurs (and another potential inequity).
Compared with many major global cities where sidewalk cafes and street-side dining have been seamlessly folded into everyday life, New York City has never really found an equitable equilibrium between the often divergent interests of roadway traffic, pedestrians, local businesses, and residents. Is the city finally getting outdoor dining right this time?
A Better Deal for Outdoor Dining
To understand how starkly different NYC’s outdoor dining culture is now, it’s helpful to understand where it’s been.
“If you had a sidewalk cafe — or you weren’t able to have one — before the pandemic, you have a point of reference for how much better this legislation is,” says Andrew Rigie, executive director of the NYC Hospitality Alliance. “But if you opened during the pandemic, and your only experience with outdoor dining was during the pandemic — where you didn’t pay anything for it and you could essentially do whatever you wanted to in many ways — you may be a little frustrated.”
Restaurants in NYC have long been able to seat diners outdoors on approved rooftops or dedicated off-street patios. But the type of street-side or sidewalk dining typical in other major cities around the globe is relatively scarce. Under the city’s pre-pandemic Sidewalk Café Law, a restaurant essentially needed to reside in certain parts of Manhattan below 96th Street to even be considered for a sidewalk dining permit. In other parts of Manhattan, or in any of the other four boroughs, the city granted sidewalk cafe clearances in just a handful of specific geographic areas. For thousands of restaurants — many of them in less affluent parts of the city — al fresco sidewalk dining was a privilege reserved for Manhattanites.
For restaurants fortunate enough to have the right address, sidewalk cafe permits could prove prohibitively expensive. For restaurants in Manhattan south of 96th Street, the minimum consent fee paid to the city for an unenclosed sidewalk dining space in 2018 was $2,579.62, with an additional $40.31 tacked on for each square foot of space occupied by diners. By that math, a tight 150-square-foot sidewalk space would run a restaurant $5,804.14 annually. For an enclosed patio those rates effectively doubled.
Compare that relatively unaccommodating stance toward al fresco dining with that of a city like Paris, where cafe culture — and street-side dining in particular — is firmly embedded in the cultural fabric. Faced with the potential loss of countless small cafes and restaurants at the outset of the pandemic, Parisian authorities also permitted restaurants to install outdoor dining structures in curbside parking zones beginning in 2020. But by the summer of 2021, the Parisian government had already taken the public’s temperature, noted the widespread popularity of its “cafe terraces,” and enshrined them into city law. Restaurants there can now reconstitute their terraces every summer and in some cases apply to keep them up year-round.
NYC has moved much more slowly to codify its new normal. Open Restaurants’ temporary regulations have persisted far beyond the return of indoor dining’s pre-pandemic status quo, creating a situation where many restaurants — specifically those that opened after June of 2020 — have never know life without their roadway dining structures and sidewalk cafes, creating the kinds of uneven expectations Rigie describes.
“You could have had this harmony between the pedestrian, the driver, and the restaurant that I don’t think we’re getting with this new solution. I’d be surprised if this works for a lot of independent restaurants.”
NYC’s new outdoor dining legislation does a lot to dispense with bureaucratic red tape, streamline the application process for both sidewalk cafe and roadway cafe permits, and significantly reduce costs. Restaurants will now pay an outdoor license fee of $1,050 every four years and annual consent fees ranging from $6 to $18 per square foot depending on location, with 80 percent of the city falling into the low end of that range. Restaurants will be permitted to keep their roadway structures in place from April 1 through November, incurring similar per-square-foot fees reduced proportionally to account for the four months they’re not in service. Critically, the new law also brings legal outdoor dining to neighborhoods in all five boroughs, vastly expanding access to sidewalk and roadway dining.
Critics of the new regulations point out that while the final design specs for roadway structures remain under consideration, there’s a broad expectation that the city will no longer allow fully enclosed streeteries and may even restrict the installation of fixed-roof coverings, raising the specter that a whole lot of existing roadway structures will likely need significant modification if not a complete overhaul to be compliant. But more pointedly, requiring restaurants to remove and rebuild their dining structures annually creates a new inequity within the system. Larger restaurants backed by well-funded hospitality groups will be able to bear that financial burden, while smaller independent restaurants will likely find it unsustainable.
“It’s a shame that outdoor dining for so long was something only a select group of people could enjoy,” says Maulin Mehta, the New York director for the Regional Plan Association, a non-profit civic organization that advises cities and public agencies in the New York metropolitan area on issues like economic and urban planning. “And I think the concerns around seasonality naturally lead to concerns around the cost and who is going to be able to participate.”
You Know It’s a Good Compromise When Nobody Is Happy
“We’re definitely moving backward,” Siwak says of the new dining structure policy. Many of the various critiques of the roadway cafes — that they’re an eyesore, that they exacerbate NYC’s infamous rat problem, that some of them are haphazardly constructed and potentially unsafe — could be managed and regulated by the city in the same way that it manages building codes and other health and safety issues.
“I’m looking at this through the lens of my restaurant exclusively, so there’s an enormous amount of perspective that I’m missing,” Siwak acknowledges. “But I never understood why [the city] didn’t just regulate the outdoor dining structures.” A set of regulations defining how the structures should be built and maintained enforced with the threat of a fine or a teardown would dispense with many of the concerns around the structures while generating revenue for the city, he argues. “You could have had this harmony between the pedestrian, the driver, and the restaurant that I don’t think we’re getting with this new solution,” he says. “I’d be surprised if this works for a lot of independent restaurants.”
“We’re grateful to the city for the outdoor program; it has been huge in helping us support our staff and keep our business operational.”
Siwak doesn’t see Forsythia participating in the dining structure program once its existing roadway structure is removed. But he doesn’t necessarily view that as a bad thing. The outdoor structure was great for the business, he says, and it was critical during the first year of the pandemic. The $65,000 Forsythia spent on the structure was, of course, a hefty investment. “But I never understood it to be a permanent solution,” he says. “I understood that even if I could get one year out of it, it was a logical business decision to build it.”
These days, the restaurant has expanded its service to seven days a week to make up the looming revenue shortfall and ensure it can retain all staff, Siwak says. But that’s a change the restaurant has long wanted to make. Going forward, Forsythia will likely continue outdoor service seasonally via a sidewalk cafe rather than a roadway structure. “I think the odds of us rebuilding something in the street is relatively low,” Siwak says.
Other establishments can’t see themselves parting with their outdoor structures, which have not only become part of their business models but part of their cultures. Kevol Graham, co-founder of Kokomo Caribbean restaurant in Brooklyn, says that restaurants have had to roll with the punches throughout the pandemic as regulations and social norms changed with every steepening and flattening of the curve. At Kokomo, they’ll roll with this one, too.
“We’re grateful to the city for the outdoor program; it has been huge in helping us support our staff and keep our business operational,” Graham says. “It’s something that’s been stamped into our essence from the beginning. To lose it wouldn’t be a good thing, and we’ll keep it open any way possible.”
Restaurants, in other words, are already pivoting — and they may have further to pivot still. While NYC’s recently passed outdoor dining law isn’t perfect, Mehta says, it leaves a lot of the specifics to a rule-making phase that has yet to get underway. Various stakeholders — including restaurants and the dining public — will have a chance to participate in the shaping of whatever specific rules and regulations emerge from that process. In other words, the final rules that will govern New York’s outdoor dining structures at a practical level have yet to be written. So while the city attempts to bring its outdoor dining culture into the post-pandemic era, hospitality venues can best serve themselves by staying nimble.
“This is not something that I view as different than anything else,” Siwak says of the city’s ever-evolving outdoor dining rules. “It’s just another Covid pivot at this point.”
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