Thank you for the opportunity to provide comments regarding NYCDOT’s rules governing the new permanent outdoor dining program.

Regional Plan Association (RPA) is a century-old non-profit organization that works to improve economic opportunity, mobility, environmental sustainability, and quality of life for all those who live and work in the New York metropolitan region. We conduct research, planning and advocacy to address the region’s many challenges, and are guided by our values of health, equity, sustainability and prosperity.

Since early 2021, RPA has helped co-lead the Alfresco NYC coalition, in partnership with Design Trust for Public Space and Tri-State Transportation Campaign. Alfresco NYC strongly supports a permanent program and recognizes the benefits outdoor dining has had to communities and small businesses.

In collaboration with the NYC Hospitality Alliance, AIA New York, Open Plans, and hundreds of other stakeholders representing the restaurant industry, advocacy groups, private and non-profit sectors, and residents, we identified a number of recommendations to ensure the permanent program builds on the most important and successful parts of the temporary program.

We are pleased to see the rule-making process move forward and that it reflects many of our collective suggestions. Regional Plan Association offers a few more recommendations below as the rule making advances.

1. 5-02© - Landmarks Preservation Commission Review- We believe the role of LPC should be scaled back to allow a smoother approval process for small businesses in the historic districts. We will be urging City Council to consider ways to include community board perspective but not mandate cumbersome approval processes.

2. 5-04©(4) - Property Owner Consent - The rules propose that property owners must provide consent for an outdoor dining petition for both sidewalk and roadway cafes. We do not require drivers to seek consent from building owners when parking in a parking spot in front of their building. We should apply the same logic to restaurants conducting business in the roadway and should not require restaurants to seek property owner consent unless there are physical impacts to the property owner’s assets.

3. 5-04©(5) - Pest Control Plan - The rules require petitioners to enter into contract with a licensed pest control professional. We believe the rules should emphasize that pest control plans and professionals should implement environmentally friendly practices.

4. 5-04(f) - Order of Priority - The rules propose that petitions for outdoor dining are on a first come, first serve basis in cases where multiple establishments share the same property. We believe the rules should not encourage a rat race, and instead provide a process for joint-applications, and a priority for shared space to enhance collaboration and accountability. For example, a food court housed in a location should be allowed to have outdoor space shared amongst the establishments. There should also be provisions made for upper floor restaurants. We have them throughout the city already, and with the proposed City of Yes reforms may see an expansion of upper floor use.

5. 5-05(b) Community Board Involvement. We strongly recommend scaling back the proposed community board approval process for a faster and more efficient approval process.

6. 5-06(d) - Sidewalk Widening Approval Process - The zoning code currently states that Sidewalk Widenings ​“shall be unobstructed from its lowest level to the sky…” as per 37-53(f). We understand that sidewalk widenings have been implemented as mitigation for new, more dense development in special districts around the city to ensure proper pedestrian flow. The rules governing outdoor dining on a sidewalk widening seem to sidestep this issue, made worse by not requiring a public hearing. We do not believe public space provided to a community as mitigation for new development should be taken away without proper engagement with the community. Moreover this inherent contradiction in the zoning code needs to be clarified as it has raised concerns among outdoor dining supporters.

7. 5-10 Operation and Maintenance Requirements - we continue to urge the City to consider a year round program, with an opt in option option. In particular, the current November 30th end date eliminates the ability of small businesses to benefit from the busy holiday month of December, when many New Yorkers and tourists shop and eat out in neighborhoods throughout the city.

8. 5-11 - Design Requirements - We are pleased to see that Sidewalk Cafe siting requirements take into account the NYCDOT Pedestrian Mobility Plan. We believe this framework should be expanded so that the full NYCDOT Streets Plan provides a framework for decision making around the outdoor dining program (sidewalk and roadway) that is rooted in data and a full understanding of the various uses of our streets and sidewalks including freight, pedestrian, micromobility, etc. In terms of design of the structure, RPA supports the AIA recommendations to make the structures attractive and sustainable.

9. 5-11(a)(1)(i) - Clear Path - During the temporary program, there were places around the city where the only clear path available was a sidewalk with subway ventilation grates or something similar. Such paths were not fully accessible and presented challenges for certain community members. The proposed rules should include language articulating that clear path lanes be fully accessible. Additionally, where clear path requirements cannot be met due to a concentration of other types of ​“clutter” on the sidewalk, NYCDOT should consider options to relocate sidewalk clutter into the street if feasible.

10. 5-11(b)(2)(iii) - Flooring - The proposed rules state that ADA compliant ramps are required unless an establishment installs flooring that is flush with the curb. While we would prefer to see a requirement for accessible flooring, we think clarification is necessary for restaurants that decide to utilize ramps. The ramps used during the temporary program did not actually meet ADA standards and businesses should know the size/extent of the ramp that would be necessary to comply.

11. 5-12 - Enforcement -
    1. As we have advocated previously, the first priority with this new permanent program should be to further equity and provide education and support to businesses trying to find their footing to comply with the program. Enforcement should first start with providing an explanation and technical support if necessary to help businesses address program violations before instituting a formal penalty (fees or otherwise).
    2. Enforcement should not utilize the police department unless absolutely necessary as a result of life or safety concerns. Social service providers should be engaged for issues related to people in crisis, and small businesses should interact with NYCDOT as the lead program agency.
    3. We have seen reports that a small number of people issue repeated, and at times excessive complaints through the 311 system. The program should not utilize absolute numbers of complaints through 311 or similar system to target enforcement without first making sure that complaints are distinct. This should be incorporated into a reporting framework discussed later.

12. 5-13(b) - Temporary Outdoor Dining Structures - The rules indicate structures put up during the temporary program will have 30 days after a determination or until November 1, 2024 to remove the existing structure and transition to the new set up. We believe the timeline for taking down structures should include flexibility for businesses to avoid incurring new costs if they don’t receive a decision with ample time to prepare for the 2024 outdoor dining season, or if the decision would force them to incur costs of new set ups with little time remaining in the season. Other challenges, including availability of material, access to storage facilities, etc. may further complicate a timely transition.

13. Education and Technical Support - Establishments that have taken part in the temporary outdoor dining program, as well as newcomers, may need education and technical support in order to comply with the new program guidelines. We believe that the city must provide assistance to ensure small businesses continue to engage in the program. Components of this support should include:
    1. Identifying strategies to help businesses adapt their temporary structure to comply with the rules governing the permanent program. This is critical to reduce costs to small businesses and reduce the waste we would generate citywide if businesses had to tear all material down and start from scratch.
    2. Avoid a punitive approach and work with businesses when they receive their first violation to help educate them to build understanding of the program.
    3. Provide a platform to help exchange knowledge and best practices among businesses and strategies to create good relationships with neighbors and communities.
    4. Work with program participants to ensure they develop an understanding of the challenges with sharing the right-of-way and the need for safety precautions.

14. Floating Parking Lanes - The program rules define how floating parking lanes will be incorporated into the outdoor dining program. Where possible, NYCDOT should consider re-routing bike lanes to the outside of outdoor dining areas to maintain safety for bikers and restaurant workers and customers. If not feasible, cyclists should have signaling or signage so they slow down or stop and observe the activity of the restaurant before moving on.

15. Track the program’s success and report publicly - NYCDOT should utilize data collected from the program to track success, and better understand how the outdoor dining program impacts equity across the city, especially for small businesses and communities. This assessment could go beyond just metrics related to the program and look at potential unintended consequences. For example, NYCDOT should ensure that landlords are not escalating rents or taking any retaliatory actions as a result of the program. The impact of outdoor dining on implementation of other parts of the Streets Plan could help better coordinate various uses in the right-of-way. This reporting should adapt to changing circumstances and understanding to continuously work on improving the program.

We hope you will incorporate these ideas as you work to finalize the rules, and we look forward to supporting a successful implementation of the permanent outdoor dining program.

Thank you for your time and consideration.