'Just Let Me Keep The Patio': Restaurants Face Uncertain Future Over Outdoor Dining Structure Ban

The sidewalks of New York City today are dotted with all manner of structures, from custom-built, brightly colored cubes to unpainted wooden boxes with corrugated plastic rooftops. Most are also fitted with electric cables, pushing power to lightbulbs and heaters to give their occupants shelter from the cold and wind of New York winters.

These sheds have been a lifeline for restaurants across the city, business owners say, but within months they could be deemed illegal.

Restaurants will be allowed to keep using these sidewalk sheds for outdoor dining until July this year, when an emergency order issued by former Gov. Andrew Cuomo will expire. But the Department of Transportation’s Open Restaurants Program will no longer apply to these “full houses,” DOT Deputy Chief of Staff Julie Schipper said at a recent city council hearing, the New York Post reported.

During the first summer of the pandemic, New York City restaurants were able to adapt to customers’ desire to dine al fresco. But as winter approached and temperatures dropped, restaurants increasingly began to erect these shelters on the sidewalks in front of their establishment.

Massimo Laveglia, owner of L’Industrie Pizzeria, told Bisnow that outdoor dining was fundamental to his Williamsburg restaurant’s pandemic survival. The structure he built outside L’Industrie — string lights hanging from a corrugated rooftop held up by skinny wooden pillars, several feet above a street-level barrier bearing the pizzeria’s logo — has made the restaurant less stressful for his staff and for customers who don’t feel safe eating inside due to the pandemic.

“Between the electric and the wood, it was very expensive. We invested a lot of money to make a safe patio,” said Laveglia, who estimates that he spent $40K building L’Industrie’s outdoor dining shed. “To get rid of the patio would be a disaster for us.”

The City Planning Commission voted to make outdoor dining permanent in November, and the city council is currently shaping legislation to codify the rules around it. But restaurant owners worry that their businesses will suffer if they are forced to remove their sheds.

“Outdoor dining evolved throughout the crisis as a means of survival,” said New York City Hospitality Alliance Executive Director Andrew Rigie. “Restaurants have invested a significant amount of money in their structures. Removing them before they recoup their investment poses a lot of financial burdens on an industry that has yet to recover.”

Approximately 12,000 out of New York City’s 27,000 restaurants currently have certified outdoor dining areas, according to data from the Open Restaurants Program; many of them appeared during the pandemic to cater to diners looking to avoid enclosed, indoor settings.

Earlier this month, Schipper told the council that umbrellas, barriers and tents would be allowed to remain, but the DOT doesn’t envision outdoor dining sheds as part of New York City’s al fresco dining future.

The ad hoc arrival of sidewalk dining added to confusion for restaurant owners and tenants alike, Rosenberg & Estis attorney Luise Barrack told Bisnow. Their exponential growth over the last two years has generated the perception that the market is unregulated, although more than 4,000 warnings over violations have been issued in the city since June 2020, ABC7 reported.

“Previously it had been crystal clear what spaces could and couldn’t be used,” Barrack said. “I think it’s changed because there was some opportunistic building and some businesses deciding they could throw up something resembling outside space where they could put tables and benefit themselves. I don't think all of them were necessarily sanctioned and it proliferated. I think that’s part of the frustration that people are hearing.”

Restaurant sheds have been controversial in many of the neighborhoods throughout which they’ve proliferated. Community board members complain that they result in high noise levels after hours, more trash on the streets and less space on the sidewalk for pedestrians.

Joshua Bernstein, co-chair of the hospitality sector team at law firm Akerman, told Bisnow that litigation from community members over sidewalk café spaces has replaced litigation between landlords and tenants over those same spaces. 

“I think landlords and restaurant tenants are aligned in the fact that these sidewalk cafés have been good for business and have allowed restaurants to operate,” Bernstein said. 

More than 90% of restaurants in New York City said outdoor dining was an important factor in their survival over the past two years, according to a survey from the New York City Hospitality Alliance, and over 90% of restaurants said it was crucial to the future of their business.

IV Purpose, a sports bar in Bedford-Stuyvesant, erected a plastic-and-lumber shelter in the parking spots in front of the restaurant on Fulton Street. It put up a TV screen facing its new outdoor seating, an amenity that owner Travis Fraser says has drawn customers in from the street. 

“During the pandemic, it has almost doubled revenues because of the fact that people can be outside,” he said.

But Fraser’s restaurant is making up for lost time: While its outdoor shelter increased footfall during the summer months, it struggled this winter. On its busier nights, people walked into IV Purpose and left again, rather than sitting in a crowded indoor space.

IV Purpose couldn’t afford to pay out of pocket to replace the propane heaters it relied on last year with electric or natural gas — the city banned propane heaters in November, although the city council could bring them back with its legislation — leaving its shed underused. 

As a result, Fraser says the restaurant has been in constant conversation with the building landlord to ask for leniency on rent. 

“We’re just hoping that the summer months are a little better to us so we can catch up,” he said.

Landlords and tenants recognize that many restaurants have yet to return to full capacity despite the pandemic’s dwindling severity, Compass Vice Chair Robin Abrams told Bisnow. 

“Everybody agrees that the ability for restaurants to have additional seating outdoors with these sheds on a long-term basis is a good idea as businesses have been challenged,” Abrams said. “It’s a great way to energize and activate our streetscapes.”

For many restaurateurs, it’s a must-have in deals for new locations. Zev Sonkin, a Compass retail broker, described a deal for a coffee shop on Broadway on the Upper West Side that hinged on outdoor space.

“The tenant was very vocal about making sure they had outdoor seating, whether sidewalk café license or a shed on the street,” Sonkin said. “For the majority of restaurant tenants I work with, they recognize it's very important to have sidewalk sheds because it adds to their revenue significantly.”

It is unclear what the future would hold for restaurant owners and their landlords if they are forced to deconstruct their sidewalk sheds. Laveglia hopes the city doesn’t go through with banning them — he said he would even be willing to pay an annual fee in order to keep his new dining structure.

“[The restaurant] is not busy like it used to be before. The space is small. If people can sit outside, it helps us to survive,” he said. “I don't mind if the city tells me next year that I have to pay $10K to keep the patio, just let me keep the patio.”