Like dining in the street? San Diego decides to make pandemic experiment permanent for restaurants

A more than year-long experiment in outdoor dining meant to help financially battered San Diego restaurants outlast the pandemic will now become a permanent fixture, thanks to action taken Tuesday by the City Council.

A first-of-its-kind program for San Diego, the new outdoor dining regulations will allow restaurant owners to extend their outdoor seating onto sidewalks, and in metered and unmetered parking spaces in front of their venues as long as they pay a fee, a requirement that up until now has not been imposed.

Spaces as Places, as the program is known, will go into effect next July when the current program expires. It will include a number of design and safety regulations that will permit restaurants to install platforms for seating along unpainted, yellow or green curbs as long as they are at least 20 feet away from an intersection, street corner, alley or driveway.

Such outdoor dining areas, however, will not be allowed along red, blue or white curbs or within an alley. They will also be limited to streets with speed limits of no greater than 30 miles per hour, an aspect of the new ordinance that elicited some differences of opinion among members of the council.

Tuesday’s vote was 6-2, with Councilmembers Joe LaCava and Sean Elo-Rivera voting no because they believe that the public will be better protected if the upper speed limit is 25 miles per hour. Councilmember Stephen Whitburn pointed out that businesses along three key street segments in his district — Fourth and Fifth avenues in Bankers Hill and University Avenue in North Park — would no longer be able to offer dining in the street if the upper speed limit was set at 25 mph.

Councilmember Chris Cate was not present at the Tuesday hearing.

San Diego’s foray into expanded outdoor dining last year was such a success for restaurants struggling to navigate ever-changing rules for indoor dining that city officials decided to come up with a plan to keep the popular program in place permanently.

At least two City Council members noted that the expansion of outdoor dining has been one of the few positive outcomes of the pandemic.

“This is one of the silver linings we’ve seen from the horrible ordeal that has been the COVID-19 pandemic,” said Councilmember Marni von Wilpert. “The businesses are really depending on the ingenuity of the city to help them recover. As we know, the economic impacts of this pandemic are not nearly over.”

Customers dining outdoors at Buona Forchetta in South Park.

(Kristian Carreon/For The San Diego Union-Tribune)

While businesses so far have escaped having to pay fees for the right to erect what city planners are calling “streetaries” in the public right of way, they will now be subject to annual fees for two-year permits, ranging from $10 to $30 a square foot. The fees vary, depending upon where in the city the businesses are located. The San Diego planning department is employing a “climate equity index” that relies on environmental and socioeconomic factors for determining whether a business owner will pay $10, $20 or $30 a square foot.

As an example, the annual charge for a two-year permit for a 200-square-foot parklet would range from $2,000 to $6,000. The average parking space takes up about 200 square feet. A more nominal development impact fee will also be charged.

Some of the revenue from the new permit fee would be used to fully recover the costs of administering and enforcing the program, but remaining funds could be spent on improvements like sidewalk widening and expanded bikeways and other upgrades to make streets more appealing to walkers and cyclists. Money from the fees also would help boost outdoor dining in lower-income areas.

While the council did agree to set the maximum speed limit at 30 mph for the outdoor dining structures along streets, some members pointed out that there is a new state law going into effect Jan. 1 that will allow municipalities to reduce speed limits along city streets. They encouraged city staff to pursue that in hopes of eventually ensuring that all outdoor cafes in the public right of way are only on streets with a maximum 25 mph.

Even as the city gears up to implement the new program, it is still cracking down on businesses that have either failed to secure permits early on for their structures or built them in violation of city and fire codes. A number of restaurants constructed rooftops on their parklets, thinking they were allowed, only to learn later that they are not permitted and must be removed.

In May, the city development services and fire departments sent letters to permit holders and applicants advising them that they had until July 14 of this year to bring their outdoor dining structures into compliance. If they did not, they would potentially be subject to having their permits revoked.

Among the violations that code compliance investigators are seeing are decks and railings that are higher than 45 inches and overhead coverings like a roof. Another issue is that tent structures and canopies were allowed for temporary use only, defined as a period of 180 days or less, according to the California fire code, and now they have to be removed.

To date, city inspectors have visited more than 100 businesses, arising out of complaints or as a result of what they have observed directly in the course of their work, said Scott Robinson, spokesman for development services. So far, 53 have received civil penalty orders, and 18 more such orders are being prepared for issuance, Robinson said.

Among the dozens of restaurants receiving notices that they are in violation are Cucina Urbana, Hob Nob Hill, Royal India and Puesto La Jolla.

“It’s not the intent of the department to be punitive,” development services director Elyse Lowe said in an interview. “We are trying to get compliance so that businesses can continue to operate in a safe manner. We’re not here to take money from small businesses, in fact, just the opposite. We’ve been incredibly lenient in allowing a temporary use that’s never been allowed in the city so they can make it through this difficult time the pandemic has caused.”

Recognizing that the city was going to start being stricter in bringing outdoor dining structures into compliance, the Little Italy Association began lobbying Gov. Gavin Newsom’s office a few months ago in hopes of securing an executive order that would effectively allow restaurants to keep their rooftop structures and exterior lighting setups in place through next July.

With the assistance of the California Restaurant Association, a petition signed by about 40 restaurants was submitted to state Assembly leaders with no success, said Marco Li Mandri, chief executive administrator of the Little Italy Association. He learned last week that Newsom’s office, following one last plea, was not inclined to implement anything statewide at this point.

“I give the city credit for being as accommodating as possible, and I have to say, this saved people’s businesses,” Li Mandri said. “But now we have to dismantle those roofs, and we’re looking for portable electric generators to light up the facilities and looking to get umbrellas. We have always known that eventually, we would have to make those temporary structures permanent but we were hoping we could keep them as they are now until they got the permanent permits.”

Michael Georgopoulos, who owns the Huntress and Rustic Root, both in the Gaslamp Quarter, says his outdoor structures are larger, about 600 and 800 square feet, and will have to have their roofs removed, given the state fire code regulations that prohibit them. For now, he’s waiting it out until he gets cited.

“I have not received anything yet,” said Georgopoulos, who also sits on the board of the Gaslamp Quarter Association. “I’m sure they’re coming to me at some point. This program is great for the Gaslamp to get the additional square footage for outdoor dining but there’s a lot of parking meter revenue we rely on that will be gone. So on the one hand it’s great we have these parklets but we have to be able to still get our parking meter revenue we rely on.”

In addition to permanently allowing dining along city streets, the new regulations also cover other options, including curb extensions where the sidewalk is permanently extended into the parking lane, public promenades via the closure of entire streets, and dining in privately owned restaurant parking lots.

The Spaces as Places program will be available for business owners 30 days after the City Council’s second reading of the ordinance, which is expected next month. Before the new regulations can go into effect in the coastal areas of the city, they will have to pass muster with the California Coastal Commission, which city officials think can happen before next July.