By the Ides of March 2020, after a month of confusion and rising fear, it was finally widely realized that a deadly pandemic had broken out in New York City. It seemed inevitable that Covid-19 would soon sweep across the rest of America.
Under the impression that indoor food service hastened the spread of the virus, many restaurants concerned for the health of their employees and patrons, had closed their doors. Then-governor Andrew Cuomo shut down indoor dining in New York altogether.
Many a restaurateur worried about the long-term survival of their business. With indoor dining banned, they found solace and inspiration in the sidewalk cafés of Paris and Seville. So began the rise of sidewalk and street dining.
The small city of Kingston ardently embraced the concept of outside drinking and eating. Through the summer and fall of that year, businesses expanded their domains onto the sidewalks in front of their buildings. Local officials balanced their instinct to protect the public safety with the need for tax revenues. Regulations on the books since 2012 were fine-tuned. Properly barricaded outdoor dining was allowed to move beyond the curb of the sidewalk down into the street.
Mayor Steve Noble was a huge fan. “I think one of the things that we saw was that people who loved Kingston … people who live here to try new places by being outdoors and that kind of new streetscape vibe …. [and] we felt it also attracted people to Kingston to come and shop in our stores and help keep people employed during the pandemic “
The variety and shapes of the enclosures — most often made of wood, some constructed with planters, others brightly painted, many with a pitched-roof constructed to ward off the rain and summer heat — provided a re-imagination of public space attractive to the holy trifecta of restaurants, customers, and city government.
This spring, businesses eagerly anticipated the return of outdoor dining like that of the last two seasons. They found themselves caught flat-footed by the number of changes introduced on April 7 to the sidewalk café regulations for the City of Kingston.
A new, balanced approach
“You know this isn’t just putting a table and chairs and a plant out in a parking spot anymore, so we think that there may be a few less businesses that will participate because of that,” mayor Noble told the Common Council’s Laws and Rules Committee on March 16. “It is kind of that balanced approach so we may end up freeing up some parking spaces, but we will also still then allow a majority of those who are really going to make an investment the ability to have outdoor dining …. We are now to a point where the coping emergency is over, and we really want to codify the work that we’ve done and also improve upon it so that we have more clear guidance and regulations.”
To the businesses looking forward to outdoor dining in the summer of 2022, the sentence “there may be a few less businesses that will participate” had a chilling effect, especially coming as it did so close to the opening of the new season. What did Noble’s statement promising “improvements” mean for them?
Roof structures would now be designed and stamped by a state design professional. A restaurant had now to operate at least six hours a day for at least five days a week. Evening hours permitted for outdoor dining had been reduced.
That was just the beginning.
A number of restaurateurs which requested anonymity because they were awaiting their sidewalk café permits were concerned. If they wish to place their folding dining tables and chairs on the asphalt where they were set with no fuss last spring, summer and fall, for instance, the construction of raised platforms set “flush” with the curb were now mandatory.
Inspired by the laudable desire to conform with the American Disabilities Act, the mandates impose the platforms. The planned platforms will provide a vivid contrast to the many uptown sidewalks laid in the nineteenth century whose slab edges, set side by side one to the next, are often crumbled and cracked. The heights of the existing curbs are wildly inconsistent. The term ‘flush’ signifies nothing if a surface is uneven or misaligned.
“The sidewalk itself isn’t A.D.A., by the way,” complained a building owner whose property was affected. He requested anonymity. “A short ramp would work just as well.”
With the price of wood still whipsawing, some estimates shared by local owners have ranged as high as $1200 to build a new-regulation-compliant platform.
Effects on the businesses
When Noble introduced his March amendments, Common Council member Barbara Hill brought up the matter of expense to build the platforms. “Just wondering about businesses that may not be as economically stable yet or new because some may not be able to afford such a platform …” she said.
“Right. Yeah. I think a part of this is that …. Businesses are going to then also need to be able to add more staff to be able to accommodate more tables,” responded the mayor. “And they’re going to have to be able to manage multiple dining rooms, basically, and also the complications of people dining outside.… When it starts to rain, what do they do with them? So there does need to be some capacity at the business level to be able to take advantage of a program like this, and so I think that it does kind of put more burden on them.”
Even the heights of the railings built onto the platforms have been nailed down by the mayor’s amendments. They must be no taller than 36 inches above the platform.
When a typically-sized adult leans out over a railing, up high or down low, to wave goodbye or to catch a falling item, that stretch of bone between the hip and knee becomes a perfect fulcrum on which the rest of the body is swung over like a cranked rod. The tilting forces above and the slipping forces below becomes head over heels akimbo. The International Building Code and Occupational Safety and Health Administration specify that railings must be at least 42 inches high in commercial settings.
What these platform railings are meant to prevent are unclear.
Reached for comment, city fire inspector Thomas Tryon said he was not permitted to answer any questions whatsoever posed by a reporter, whether they regarded the permit application, the thinking behind changes to the code, or even the ideal height of a railing.
All questions were referred to the mayor’s director for communications Summer Smith, who was on vacation. More than a week of repeated attempts to reach the mayor’s confidential secretary, Roy Verspoor, via telephone proved ineffective. Written questions submitted to the vacationing director have not yet been answered at this time.
Measuring complaint worthiness
New regulations indicate how far from a street corner the outdoor dining enclosures must be built.
The Rough Draft book store discovered that its outdoor setup, picnic tables and wooden boundaries must be set at least 25 feet’ from the pre-Revolutionary intersection at which the business is located. The well-patronized enclosure of last season was situated at half that distance from the corner without apparent trouble.
When first adopted in 2012, the original language of Chapter 346 of the General Legislation of Kingston allowed sidewalk cafés to remain open until 12:30 a.m., Monday through Thursday mornings, and until 2 a.m. on Friday, Saturday and Sunday mornings. But now, with no public hearing. sidewalk cafés and outdoor seating must cease operation by 10 p.m. Requests for later operating hours now require a noise permit from the planning department and approval from the mayor.
“We also put in, uh, kind of a curfew,” explained Noble. “Ten p.m. is the time that we had. We’ve done this over the last couple of summers, and we have felt as though that has worked out very well. We got almost no noise complaints for anyone from 10 p.m. and earlier.
“The neighbors, um, did get upset in a few instances that we had to clarify and we corrected the situation, but we felt like 10 p.m. was a reasonable time frame because we do have a mix of residential and commercial in many of our districts. There is a wording in here that would allow them to basically get a noise permit from the planning department and then approval from the city to be able to go past 10 p.m.”
At what decibel level does the happy carousing of human beings become complaint-worthy? Some bars in New Orleans address this wildly subjective topic by employing cheap handheld decibel readers. Every half-hour an employee walks across the street from the bar, aims the decibel meter, and records the sound level in a log presented to a police officer upon request.
The enforcer has changed
While attempting to provide a sensible a set of rules for hospitality entrepreneurs, these changes adopted by the City of Kingston appear to suffer from a lack of input from the small local businesses they mean to support, and according to the business owners jeopardize the tourist- friendly environment they are meant to encourage.
The city compelled outdoor structures to be dismantled by November 1 last year. Several restaurants assert that, egged on by hardy customers, they would have kept their outside setups even into winter, using electric- or propane-powered heaters. The city, unable to conceive how restaurant owners could devise methods to bring the setups inside on snow days, nixed their plans. The snow didn’t begin until November 28. Some owners argue that the city should have let the businesses decide for themselves whether it was worth the trouble to stay open.
One beautifully constructed outdoor dining enclosure in begins at 19 feet from the nearest street corner instead of the required 25 feet, and so shall remain anonymous here.
The city describes the new outdoor dining tweaks as a three-ear rollout and so perhaps minor violations won’t be zealously enforced. If they are, the cost to an offending business is $250 a day every day until the cause of the violation is brought into compliance.
The cost to obtain an outdoor dining permit is $250. There’s also a non-refundable $150 consideration cost, regardless of whether the permit is granted.
The agency charged with enforcement has been changed from the fire department to the building department. “It makes a whole lot more sense now that the building department is a separate entity,” explained mayor Noble, “from the fire department that used to be combined, and now they’re not any longer and so it should be the building department ….”