Council removes D.O.T. — for now — as lead agency for Open Restaurants as it drafts bill for permanent program

BY LINCOLN ANDERSON | So what exactly is on the menu now for Open Restaurants — and, for that matter, for stressed-out Downtowners driven to distraction by the droves of “emergency” roadway dining sheds?

Basically, a lot is currently in the works and still unsettled.

The main news is that city councilmembers are currently, at long last, drafting an actual law that would make the Open Restaurants program permanent. According to councilmembers, it might take anywhere from a month to three months from now before there is a real law ready for the full City Council to vote on.

That actually does not seem like much time at all — and maybe hardly enough — considering that Open Restaurants is a program involving so many agencies and impacting the city and its residents in so many ways and on so many levels. But there reportedly is a sense of “urgency” within City Hall that this process move quickly.

Since this would be the first major piece of legislation approved under new mayor Eric Adams, Council leadership will want to pass it, not with the bare minimum of 26 votes, but with “major support” for it. So there will be an attempt to satisfy members who are leery about the program, if not outright hostile to it.

The point person on the legislation is Bronx Councilmember Marjorie Velazquez, the bill’s sponsor, who chairs the Council’s Committee on Consumer and Worker Protection. Making sure that — in addition to consumers and workers — Velazquez also fully considers the concerns of residents are Erik Bottcher and Christopher Marte, the co-chairpersons of the Manhattan Delegation. The pair represent the two Council districts with the most outdoor dining sheds in the entire city. The two Downtown Manhattan politicians have stressed that Open Restaurants can’t continue to be a “one size fits all” program.

Shed stats tell the story

There are currently more than 12,000 dining sheds in the city. Out of these, about 1,300 are in Bottcher’s District 3, which stretches from Greenwich Village to Hell’s Kitchen. Marte’s District 1, which includes Lower Manhattan, the Lower East Side, Soho and Washington Square, has 1,050 sheds. Meanwhile, Carlina Rivera’s District 2, which includes the East Village and Lower East Side, has 900 sheds, apparently the third most in the city. By comparison, the Upper East Side, represented by Councilmember Julie Menin, only has 400 outdoor dining sheds.

Velazquez is said to have taken residents’ spoken testimony very seriously at the recent nine-hour hearing on Open Restaurants that she led. In addition, her staffers are now going through the copious write-in testimony that they have received and will be distilling that down to the major points for councilmembers to consider.

The other big news is that — for the moment, at least — it’s unclear if the Department of Transportation would be the city agency that oversees and implements the permanent Open Restaurants program. Residents and some councilmembers and other local politicians have charged that D.O.T., which has crafted and run the temporary outdoor dining program so far, is simply not up to the job and is stretched too thin, and that enforcement — if any at all — has been sorely lacking.

Usually, it’s the City Council that introduces bills. But sometimes the mayor or a borough president will do it. In this case, it was Mayor Eric Adams who initiated the process to codify Open Restaurants. In the request for a bill that Adams submitted to the Council, the text identified D.O.T. as the lead agency for Open Restaurants.

Red light for D.O.T.

However, the City Council is pointedly reserving the right not to have D.O.T. be the lead agency. On Thursday, the Council’s Land Use Committee voted to “modify” the bill submitted by Adams by removing D.O.T. as the lead agency. Open Restaurants haters rejoiced at this news. However, this does not necessarily mean D.O.T. is out of the picture for good. Basically, moving forward, as part of the process of creating the new law, Velazquez and fellow councilmembers will now be deciding whether D.O.T. should continue to run the program or whether the job should be handed off to another agency. So, by deleting D.O.T. from the resolution that it passed on Thursday, the Land Use Committee has wiped the slate clean in that regard, at least for now.

In short, D.O.T. is no longer “baked in” to the legislation in any aspect and so now “must prove” that it can run the program.

Bottcher, who sits on the Land Use Committee, voted “aye,” as did all its members save for Ari Kagan, who represents Bensonhurst and Coney Island. Kagan’s concerns about the sheds were similar to those of Downtown denizens, including sanitation, rats, fire safety and A.D.A. accessibility.

“The bill will be negotiated in the coming weeks,” Bottcher said, in his remarks before the committee voted. “My goal is to help find a solution that keeps what people really like about outdoor dining while doing away with some of the elements that have been really problematic about the temporary program.”

Rivera wants ‘holistic, responsible system’

Carlina Rivera, who also sits on the Land Use Committee, is a big believer in the trend of exploring new ways to use streets, including Open Restaurants. But on Thursday she showed a nuanced approach. Perhaps showing how carefully she weighed her remarks, she appeared to be reading from a prepared statement.

“I think we all know that the pandemic provided opportunities for ingenuity out of necessity…to think about how we use our outdoor space and sidewalks in new and exciting ways,” Rivera said. “Expanding space for diners to enjoy restaurants and gather safely in public is one of those opportunities.”

Yet she also noted the program’s negatives, from narrowed sidewalks and accessibilty issues to reduced space for garbage collection and noise.

Rivera said that now, in crafting the new legislation, the City Council has the chance to develop a “holistic, responsible system for restaurants to use outdoor space…including, and especially, how those changes impact neighbors, while supporting valued small businesses and community members. Over all,” she said, “this program proved vital to our beloved restaurants and it deserves the opportunity to be improved.”

For the recording of the committee meeting, click here and scroll down to “Video Archive of Past Meetings.”

Also on Thursday, the Land Use Committee approved the removal of all current sidewalk cafe regulations from the city’s Zoning Code. Essentially, this will strip away any and all geographic restrictions on where sidewalk cafes can be located in New York City. For example, more than 130 spots on residential side streets in the East Village and Lower East Side have grandfathered commercial storefronts that would now be able to legally have sidewalk cafes. Currently, all sidewalk rules are suspended by former Mayor de Blasio’s pandemic emergency order.

‘No significant impact’

In its resolution, the Land Use Committee stated that vanishing the city’s existing sidewalk cafe rules “will have no significant impact on the environment.” Local residents and community boards would beg to differ.

A Council subcommittee also approved the two text amendments on Thursday.

The full City Council next will vote on Feb. 24 on the exact same resolution that the Land Use Committee passed.

Outdoor dining design not set yet

D.O.T. recently said that the permanent Open Restaurants program is expected to be in place by next year but that outdoor sheds would not be part of it. According to D.O.T., the “yurts,” as some called them, would be replaced by open spaces in the curbside roadbed, with movable chairs and tables and umbrellas or tents. But apparently those design specs are not set in stone. The law that Velazquez is working on will reportedly be left a bit loose in some areas, which will allow whatever agency runs the program to then fine-tune the details, which is said to be pretty standard practice for the City Council. Perhaps parking — or “free car storage,” as some insist on calling it nowadays — could even come back to these spaces during the off months of a seasonal outdoor dining program. Who knows? To hear insiders tell it, everything is on the table, no pun intended, right now.

One thing that is clear is that Velazquez, the bill’s main architect, has shown a willingness to collaborate with Bottcher and Marte to try to address residents’ concerns about the program. Velazaquez has indicated this in e-mails and tweets she has sent out about the program.

Marte, who does not sit on the Land Use Committee, is hopeful for the process that’s now moving forward. In an interview with The Village Sun, he said it was the zoning text amendment for sidewalk cafe regulations that was causing the entire process of making Open Restaurants permanent to be rushed. The zoning text change has a clock, like a ULURP review, though the process was not an actual ULURP.

The plan is for the Open Restaurants law to cover not only the roadway dining spots but also to incorporate sidewalk cafes under its umbrella. So the two are linked.

‘This was a de Blasio push’

“Because of the [sidewalk zoning] text amendment, I think a lot of it was being rushed,” Marte said. “This was a de Blasio push…to do it as quickly as possible. And, thankfully, because of the concerns of the residents, we were able to push for Open Restaurants not be under D.O.T.’s management. It’s open now — the one thing we wanted was for this not to be a giveway to D.O.T.”

Marte said he, for one, is happy to see the much-maligned agency deleted from the bill — at least for now.

“I don’t have confidence that they can run it,” he said of D.O.T. and Open Restaurants. “There’s a lot of other agencies that do this kind of enforcement and inspection. D.O.T. already does a lot. They would have to hire a lot of staff.”

He has been encouraged by bill sponsor Velazquez’s willingness to work with him and Bottcher.

“I think Marjorie Velazquez is open to doing a walk-through of certain streets with us,” he noted.

Flurry of community input

Both Bottcher and Marte said there recently was intense input from community boards and other local stakeholders, especially in the 24 hours leading up to Thursday’s Council Land Use Committee meeting, that apparently helped councilmembers to better appreciate the concerns of residents.

“There’s been a lot of work in the last few days,” Marte said. “I think there’s a lot of energy for the community and local councilmembers to have a say.”

But he, too, still feels the process of drafting the permanent law is moving too quickly, though concedes it might be hard to slow things down.

“I think it should hopefully take a lot more than a couple of months,” he said, referring to the drafting of the new law. “This is the biggest transfer of land we’ve seen in recent history.”

While there is “no clock” ticking anymore now that the decades-old sidewalk cafe rules have been dumped from the city’s Zoning Code, there still is pressure within City Hall to get the permanent Open Restaurants program finalized.

“There is no clock,” Marte said, “but I think the administration and City Council want to do it relatively soon — in the next month or two or three.”

Basically, he said, since the thinking is to start permanent Open Restaurants in 2023, the idea is to have the law in place by this spring, leaving a bit of a cushion to get things ready for the launch. But how fast the bill is passed will depend on whether there is a critical mass of councilmembers onboard with it. Velazquez is reportedly already working on the bill.

“I think the biggest battle is ahead of us,” Marte reflected. “It really depends how drastically they change the bill. If they are open to the changes the community wants, it could go quickly. But if there’s a line in the sand, it could be more difficult.”

Hoping City Council kills bill

Of course, many Downtowners, worn down, sleep-deprived and thoroughly frazzled by the dining sheds over the past nearly two years, just wish Open Restaurants would go away — permanently.

Diem Boyd, the outspoken director of LES Dwellers, said, “The lobby-fueled text amendment changes should have died in both committees yesterday. The aye votes means permanent Open Restaurants lives, to be codified into law by the New York City Council.

“The only shot we the people have is if 25 other brave city councilmembers join Councilmember Ari Kagan, the lone nay vote at committee, and refuse to buckle to special interests and kill the bill next week.”

Assuming that doesn’t happen, Boyd predicted, “There will be several drafts, lots of political theater and a whole lot of lip service that won’t amount to anything more than a hill of beans for residents. Landlords and the hospitality sector just got one step closer to complete control of our streets and sidewalks in perpetuity, across all five boroughs.

“It is the opposite of democracy!” she said. “City Hall is managing and manipulating a crisis to concentrate wealth and power in the hands of landlords and the hospitality lobby by dispossessing the public of our land. Literally, accumulation by dispossession.”