Effective March 3, 2024, the New York City Department of Transportation (NYC DOT) adopted new rules for the City's permanent outdoor dining program, Dining Out NYC. Spanning approximately 30 pages, the new rules replace the temporary Open Restaurants Program that was introduced as a response to the COVID-19 pandemic.
During a notice and comment period and a public hearing held on November 20, 2023, residents and businesses voiced concerns about noise pollution, pest control, roadway congestion, and issues with maintenance and abandonment. To address these concerns, the new rules adopted by NYC DOT seek to establish operational and management standards that will reshape the City's outdoor dining landscape.
The rules, which apply to all five boroughs of the City, establish two types of outdoor dining arrangements: roadway cafes and sidewalk cafes. As defined in the rules, a roadway cafe is "an open-air portion of a ground floor restaurant containing readily removable tables, chairs, and other removable decorative items, located in the curb lane or parking lane of a roadway fronting the restaurant and designed and operated" in accordance with the rules. By contrast, a sidewalk cafe is "a portion of a ground floor restaurant that is located on a public sidewalk or sidewalk widening in front of the restaurant and that is designed and operated" in accordance with the rules.
There are regulatory and operational distinctions between roadway cafes and sidewalk cafes. For instance, roadway cafes have a limited operating season between April 1 and November 29 each year, while sidewalk cafes are permitted year-round. Among other differences, roadway cafes and sidewalk cafes also require different annual fee rates based on the cafe's square footage.
Whether a site is appropriate for a roadway cafe or sidewalk cafe depends on a set of specific (and often complex) design requirements. In each case, the cafe must comply with design criteria relating to (i) siting requirements, including but not limited to frontage, permitted locations, minimum clearance from elements and objects, dimensions, signage visibility, and utility infrastructure, and (ii) material requirements, including but not limited to flooring, furnishings, perimeter barriers and/or demarcations, overhead coverings, and lighting and electrical connections. To assist applicants in navigating these design requirements, NYC DOT published a "Step-by-Step Guide" for both roadway cafes and sidewalk cafes, available on the Dining Out NYC website.
In addition to standardized design requirements, the new rules set forth an application process that requires public review and approval of all outdoor dining proposals. Applicants must be granted both a license and revocable consent from NYC DOT, each with a concurrent term of four years. The application process requires applicants to submit a petition that includes, at a minimum, a completed petition form, a site plan and drawings, site photographs, a certificate of property owner consent, and a pest control plan. The petition is then filed with NYC DOT, with advisory review by the community board for the district in which the roadway cafe or sidewalk cafe is proposed to be located.
All outdoor dining applications are subject to a public hearing process. Unless otherwise waived, the applicable community board may hold a public hearing on the outdoor dining proposal, and will then issue a recommendation to approve, deny, or modify the outdoor dining proposal. In the event that the community board recommends denial or substantial modification of the outdoor dining proposal, NYC DOT will conduct a second public hearing, which may involve additional layers of review by the New York City Fire Department, the Mayor's Office for People with Disabilities, and the Landmarks Preservation Commission. An outdoor dining petition is considered final only when NYC DOT files its decision of approval (or approval with modifications) with the New York City Council. Even after NYC DOT files its decision with the New York City Council, the New York City Council may resolve by majority vote of all council members to review the petition. In sum, NYC DOT guidance suggests that the entire review process can take up to six months, though applicants can monitor the status of their application via Dining Out NYC's online portal.
While the City and the public stand to benefit from a uniform approach to outdoor dining, the application and public hearing process, still in its early stages, poses certain regulatory hurdles for property owners and prospective outdoor dining applicants. As the Dining Out NYC program works through its inaugural year of applications, we recommend consulting legal counsel to ensure compliance with the regulatory and design requirements associated with these new rules. Furthermore, because the process to appeal or challenge a decision issued by NYC DOT is largely untested, legal counsel can provide guidance as to how to navigate the City's regulatory procedures.
Our team will continue to monitor local developments and guidance relating to Dining Out NYC. Please contact Susan Golden or Hilary Atzrott Hamburg for additional information on these developments.