City Hall, NY – Today, the New York City Council released a new report that outlines the legal and policy framework of outdoor dining and its relationship to the current state of the City’s new Dining Out NYC program. The report, released the same day as a Council hearing to examine challenges with implementation of the new program, highlights problems faced by restaurants seeking to participate in outdoor dining.

It also clarifies how the most recent law (Local Law 121 of 2023), which was required to establish outdoor dining under reinstated laws that require procedures and fees for granting public land to private entities, expanded opportunities for outdoor dining and reduced its costs compared to the previous program under law. The last outdoor dining program under law, prior to the pandemic, only allowed sidewalk cafes in certain parts of New York City. The Council’s post-pandemic efforts expanded the geographic eligibility for outdoor dining through citywide zoning changes and allowed roadway dining for the first time under local law.

While broad opportunities for sidewalk cafes and roadway dining were first permitted during the pandemic state of an emergency that suspended local laws and the required licensing and fees for private use of public space under revocable consent, court decisions required the reinstatement of law. This distinction between what is allowable within an environment where local laws are in effect and one where they are suspended has skewed an understanding of the outdoor dining landscape. Nonetheless, there have been many issues with the new law’s implementation. Restaurants have raised several issues with the program’s administration, including with the application and review processes, delays, design requirements, and other challenges.   

Read the Council’s full report here.

Key takeaways include:

  • After the pandemic had waned, a 2023 lawsuit argued there was no longer a legal emergency justification for the suspension of laws that permitted the temporary outdoor dining program.
  • The New York State Supreme Court ruled that the mayor’s ongoing issuing or orders to suspend 26 different local laws to allow outdoor dining violates state law.
  • The establishment of Dining Out NYC was an effort to continue a legally permissible, permanent outdoor dining program beyond a state of emergency.
    • It changed the City’s zoning restrictions to permit outdoor dining across the five boroughs instead of only in a limited set of zoning districts, primarily in Manhattan.
    • It reduced the allowable timelines in the application process for revocable consent licenses, which are required for public space to be granted for use by private entities, compared to their pre-pandemic counterpart.
    • Though some businesses may have decided to forgo participation due to the reinstatement of license fees required in a program under local law, compared to the fee-free pandemic program, it is now cheaper for restaurants to participate than it was in the previous permanent program prior to the pandemic.

“Outdoor dining has become a defining feature of our streetscape, but the success of the permanent program hinges on transparency, consistency, and fairness in its implementation,” said Majority Whip Selvena N. Brooks-Powers. “As Chair of the Committee on Transportation and Infrastructure, I remain focused on ensuring the Department of Transportation improves the application process and better communicates with restaurant owners and local communities. We must learn from the challenges of the emergency-era program while building a system that is sustainable, equitable, and responsive to all New Yorkers.”

“We have heard from numerous small business owners throughout the City who have been impacted by delays in the City’s review of their outdoor dining applications, resulting in missed opportunities to prepare for seasonal roadway dining,” said Council Member Julie Menin. “This upcoming hearing on the Dining Out NYC program is a crucial opportunity to gather feedback and identify solutions to streamline the application process and ensure that outdoor dining remains a viable and thriving option for restaurants throughout the City.”

New York City has always had outdoor dining in the form of sidewalk cafes. In March 2020, there were 1,224 active sidewalk cafe licenses, the majority of which were in Manhattan. During the pandemic, through a COVID-era emergency order that suspended local laws, a temporary outdoor dining program permitted restaurants to operate outside of compliance with local laws. This was a lifeline for restaurants to survive and for continued socialization at a time when indoor dining capacity was limited. The establishment of the Dining Out NYC program was an effort to continue a legally permissible, permanent outdoor dining program beyond a state of emergency.

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