The Real Estate Board of New York to The New York City Department of Transportation on the Dining Out NYC Program Proposed Rule

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REBNY appreciates the opportunity to provide testimony to the Department of Transportation (DOT) on their proposed rule for the Dining Out NYC program.

For over two years, REBNY has championed the City’s efforts to establish a permanent outdoor dining program. In early 2022, REBNY voice support for the passage of the zoning text amendment to streamline and update the zoning rules surrounding outdoor dining, and earlier this year, REBNY was pleased to support Intro 31-B, legislation to establish the Dining Out NYC program in which the rule refers to today.

REBNY looks forward to continuing to partner with DOT to ensure outdoor dining is successful across the five boroughs. The below comments highlight aspects of the program that merit particular focus moving forward.

Siting Requirements

At the core of Dining Out NYC program is the idea that the public realm can and should be activated to encourage innovative uses. One of the specific zoning requirements in the program is that license holders shall maintain a minimum clear width of sidewalk that must remain in all cases across the city based on type of corridor. This is an appropriate requirement as it provides a clear path for pedestrian traffic.

REBNY understands that additional requirements around clear paths are being discussed. Added requirements would only complicate this standard and create unnecessary bureaucracy, which is why REBNY strongly opposes adding additional parameters that could have a potentially adversarial impact on the program’s success.

With New York City also moving towards universal waste containerization and with the need to accommodate the prevalence of e-commerce freight and delivery, REBNY also encourages DOT to ensure that siting decisions take these streetscape needs also into consideration, particularly considering that requirements for loading berths and the like may in the future become more prevalent.

Lastly, Section 5-06, regarding sidewalk widenings, should be written to clearly specify the process for cafés located in sidewalk widenings, and not on City-owned property, rather than relying on cross-references to other sections. REBNY is willing to provide additional context and suggested language to help facilitate this if the department would find that exercise helpful.

Insurance Requirements

REBNY appreciates that the proposed rule includes insurance requirement for license holders, which is crucial for mitigating potential risks and ensuring public safety. Insurance mandates create a more secure and regulated environment for outdoor dining, fostering a sense of trust among stakeholders. Requiring license holders to carry liability insurance shifts responsibility away from property owners, which is an important aspect that in the leasing of commercial and retail space to restaurants. While the requirements are outlined in the rule, REBNY encourages as much specificity as possible to streamline and create a clear understanding of the insurance requirements relative to both sidewalk cafes and roadbed dining.

Landmark Preservation Commission Approval Processes

REBNY remains concerned about the role of the Landmarks Preservation Commission (LPC) in the licensure approval process. While maintaining the integrity and character of our historic districts is important, landmarked districts within neighborhoods including the West Village, SoHo, and the Upper West Side contain some of highest concentration of restaurants in the city. REBNY previously argued that LPC already has rules in place to protect sidewalks consisting of historically significant materials and noted that the outdoor program does not preclude this review. However, by nature, a temporary structure, moveable street furniture, or temporary or unfixed to the building façade signage does not rise to the level of requiring review by the agency or the commission.

The effectiveness of the program could be significantly diluted by the requirement that each restaurant who seeks to participate in the must first attain LPC approval. The administrative burden for both restaurants and LPC could lead to significant costs, delays, and processes. While we understand that LPC is a different agency than DOT, we encourage additional clarity to be provided regarding how both agencies aim to navigate and facilitate appropriate review in an expeditious way.

Thank you for the consideration of these points.