Post Pandemic, Outdoor Dining Pivot Becomes Permanent In Some Municipalities

Outdoor dining rules are under consideration by local officials.

Last weekend’s brief visit from Tropical Storm Henri put a damper on streetside meals on the South Fork, but as the sky cleared, diners were eager to head back to their favorite spots for lunch or dinner under the sun or stars.

Now former Governor Andrew Cuomo recently extended his executive order allowing the use of public space for outdoor dining. And, while the East End’s appetite for outdoor dining continues unabated, the mechanics and permitting requirements can vary from one municipality to the next. In general, officials support its continuance, with some caveats.

First inked in June 2020, the governor’s order allowed restaurants to pivot, move ahead and return to service following the pandemic-prompted shutdown that lasted from March 2020 into the summer for many businesses. Eateries were allowed to skip forward into the second phase of the state’s four-phase reopening plan, if they could conceive a way of moving their service outdoors.

Many did and, in Sag Harbor, Mayor Jim Larocca said village residents and visitors have embraced al fresco eating wholeheartedly. “The overwhelming sentiment has been positive,” he said, making note of the nice, sociable vibe on Main Street. Overall, the mayor felt the pivot to outdoor dining has been “a very successful experiment,” so much so, the village has changed its local law to allow for year-round outdoor dining rather than simply permitting it on a seasonal basis.

In East Hampton Village, Building Inspector Tom Preiato agreed outdoor dining is a nice amenity. Throughout the country, he said, “it’s expected.” Still, he qualified, “we don’t want a runaway train.”

An annual permit takes the amenity beyond the COVID pandemic with a permit process that can allow restaurants and food stores in the commercial district to use adjacent public property to operate a “sidewalk cafe area” annually between April 15 and November 15. The initiative was approved earlier this year.

In Southampton Village, the Board of Trustees was slated to extend a temporary permitting process allowing outdoor dining, according to the Village Administrator Charlene Kagel-Betts.

In the Village of Westhampton Beach, outdoor dining is permitted through the end of the year. According to Building and Zoning Administrator Brad Hammond, the village allowed for Temporary Open-Air Dining (TOAD) permits last year and at the end of the normal summer season, the board then extended the TOAD provisions through April 2021 and then extended them again through the rest of this year. “We allow for limited use of the public sidewalk with conditions, which is not normally permitted by code,” he explained.

On the town level, a slightly different tack is being taken.

East Hampton Town Supervisor Peter Van Scoyoc said this week that he will likely extend his executive order regarding outdoor dining through Columbus Day.

The executive order allows restaurants to have more outdoor dining, on their own premises, than what is normally allowed under town code; the code states that 30 percent of seats may be outdoors. Under the executive order, eateries can have up to 100 percent seating outside, or any combination as long as they have space and indoor and outdoor together don’t exceed their 100 percent maximum seating. Maximum seating allowances are set by the Suffolk County Department of Health in relation to sanitary waste regulations. The adherence to maximum seating figures set by the health department is a constant in every municipality on the South Fork that allowed restaurants to offer outdoor dining.

In Southampton Town, officials informed businesses that they would need to return to more normal operations or secure approvals to continue outside uses. An August 1 notice gave businesses two weeks to return to normally approved operations.

“We have not been out to see them yet despite the fact that more than two weeks have elapsed due to many other aspects of our operation that have consumed our attention. We expect to go out and visit establishments soon and if they have not come into compliance yet, then they would receive a Notice of Violation; not a summons,” said to Ryan Murphy, the town’s public safety and emergency management administrator.

The violation would likely have a 30 day compliance period specified on it so as to allow for them to make an application to the Planning Department to obtain approvals for whatever outdoor/indoor setup they would like to try and obtain, he continued. The time frame would boil down to about two months of time to make an application to the planning or building department.

“As long as application is made, we would not proceed forward with any kind of penalties at that time and the violation would be removed pending the results of their application,” he said. “This timing really gets people through the season so as not to harm their business during the busy season and also to get us through some of the recent COVID spread increases that we have seen. Obviously, if COVID numbers continue to trend in a way that makes us concerned, we may also take actions to extend outdoor activity to account for social distancing and fresh air benefits of outdoor dining.”

Mr. Murphy noted, as did officials in other municipalities, that health department sanitary regulations mean, “for every seat that is placed outdoors, there really needs to be a seat removed indoors.”

If a restaurant has a Health Department capacity of say 150 people, that is the capacity for the whole business operation; the establishment can’t have an inside setup for 150 people and then add 30 additional dining positions outside to have a grand total of 180 dining positions, he explained.

In short, Mr. Murphy underscored, outdoor dining in Southampton Town is not disallowed. “We know people enjoy al fresco dining and we have seen our population take to it even more as a result of COVID. We also know that many of the businesses have reported benefiting greatly from the outdoor dining allowances. The businesses are free to apply for changes to their business operations to try and preserve some/all of the new outdoor dining plans that they have put in place.”