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If outdoor dining can flourish anywhere, surely it can do so in California—where the weather is temperate and a wildly diverse corps of chefs has year-round access to high-quality produce, seafood, and wine. Yet before the pandemic hit, the Golden State had long been outclassed in offering congenial surroundings for alfresco dining. Yes, I’m thinking of Paris and its famous sidewalk cafés. But even smaller cities in France, Spain, and Italy offered a higher density of pleasant outdoor seats than Los Angeles, population 3.9 million. San Francisco is slightly bigger and much drier than Portland, Oregon, yet in my observation the latter had superior patio options.
But when the pandemic hit, state and local officials relaxed various rules. Suddenly, the hurdles to converting parking spaces into outdoor seating areas were low enough for many restaurateurs to clear.
What if things were always that easy?
For decades, it turns out, needlessly onerous regulations had deprived Californians of both the pleasure of eating outdoors and the convivial streetscapes that curbside dining creates. Before COVID-19, “a restaurant or bar, in order to serve outside, would basically have to expand their liquor permit,” state Senator Scott Wiener told The New York Times in June. “It could be a lengthy, difficult process, with appeals.” But last year, as desperate restaurant owners looked for ways to protect their business from a coronavirus that spreads most readily indoors, the state Department of Alcoholic Beverage Control (ABC) issued emergency rules that said that if a city allowed it, they could expand alcohol sales outside, he continued. “That’s been great, not just for bars or restaurants, but patrons like it,” Wiener said. “And it activates public spaces.”
Indeed, large and small municipalities alike relaxed their own restrictions in ways that helped local businesses, pleased consumers, enabled people-watching, and transformed spaces for parked cars into gathering places for humans. If the lost square footage denied a motorist a parking spot, it helped multiple diners. And improved urban and suburban streets were achieved at bargain prices for taxpayers, as most costs were covered by restaurateurs, who built and maintained the new spaces.
It’s a story that ought to end happily—and teach politicians a valuable lesson: that regulatory reforms are needed so that positive change can occur under normal conditions rather than requiring governors and mayors to suspend stifling rules during emergencies.
Instead, red tape is already creeping back like an invasive vine.
In San Diego, “hundreds of outdoor dining structures might have to come down,” the Voice of San Diego reported in May. “City staff said they don’t see any way around putting restaurateurs through a more intensive process to make their outdoor structures permanent and bring their slapdash structures up to code.” Paso Robles and Pismo Beach are ending temporary programs, even as local officials professed to want more outdoor dining going forward.
In San Francisco, the relaxation of rules during the pandemic enabled clusters of restaurants to create “the image people have of a cafe culture that had never taken hold in the city previously,” the architect Charles Hemminger told Architectural Digest. Restaurateurs were allowed to more easily build “parklets”—essentially, wooden platforms atop what had been curbside parking spaces—and use the new structures for outdoor seating. But now, the San Francisco Chronicle reports, “though the Board of Supervisors voted in July to make parklets permanent, the city also imposed new rules and regulations that may force many restaurants to tear their outdoor dining structures down.” Mayor London Breed is trying to reassure restaurant owners, telling them that they will not face immediate fines for out-of-code parklets. She has proposed extending the deadline for compliance until March 2023. But meanwhile, the Chronicle notes, city inspectors have been threatening restaurateurs with $500-a-day fines unless they comply within two weeks.
This regulatory muddle has left many business owners dispirited and confused. It has also revealed a lot about how city agencies think. In the summer of 2020, San Francisco officials published a 64-page manual for lawfully creating and maintaining a new parklet. The primary visualization of the process is part Candy Land, part Kafka:
As the diagram shows, the long, winding path through the parklet-approval process offered multiple opportunities for neighborhood NIMBYs or competing businesses to stand athwart applications yelling, “Stop!” Even as restaurant owners approach the end of the path, after they’ve complied with steps A through N, significant “objections” of unspecified nature may still trip them up.
By allowing parklets to be built outside the process outlined in the 2020 manual, the city enabled something its mayor regarded as a great improvement. The Candy Land diagram does not appear in the updated parklets manual that the city issued last month. But even as the city tries to make a successful experiment permanent, officials are reimposing the same old logic, if not necessarily exactly the same rules, that previously deprived it of the very good it wants to conserve—to the point that some restaurateurs, according to the Chronicle, may have to dismantle everything they’ve built. An industry group told the newspaper that up to 90 percent of restaurant parklets are at risk.
If you read the city’s guidelines in full, most discrete steps can be defended in isolation. Then you realize that, taken together, they add up to an exacting series of design requirements and restrictions on use––all to put some tables and chairs atop a wooden platform. As the journalist Ezra Klein pointed out on Twitter, every interest was considered “except the one that the law was supposed to achieve—letting a successful experiment continue.” Some outdoor-dining areas, Klein acknowledged, raise fire-safety concerns, deprive the local transportation system of revenue from parking meters and fines, or lack sufficient access for wheelchair users. “It’s not crazy,” he wrote, “to try and take everyone’s concerns into account. But you end up with an outcome everyone kind of hates.”
While some inflexible rules are defensible—for instance, a parklet should never block a storm drain—others only seem like no-brainers until you consider the opportunity costs that they impose. A given curbside-dining setup might make gaining access to a nearby building a bit harder for the fire department than it would be if a car or SUV were parked in the same spot. Then again, failing to allow that outdoor-dining setup could result in more indoor dining, and the further spread of the coronavirus, or regular old influenza, for that matter, that results in many more deaths than would result from any fire in that building. Requiring parklet owners to accommodate people who aren’t paying customers, a condition that one faction favors, sounds public-spirited, but it reduces the incentive to build the spaces in the first place, for reasons Eater captured in its coverage.
Aaron Peskin, a member of the San Francisco Board of Supervisors, compared parklets to beaches, “arguing that anyone should be free to sit down in a parklet and enjoy a cup of coffee,” Eater’s Becky Duffett reported. “But, in practice,” she continued, “countless restaurant and bar owners have called into these hearings and shared complaints with their supervisors, saying they are hundreds of thousands of dollars in debt, they have spent tens of thousands of dollars on parklets, and are having to clean out urine, feces, and needles every morning.” A theoretical comparison to public beaches is one way to see the issue. But isn’t buying a coffee as a condition of occupying a section of asphalt a lower barrier to entry than having to own a car and feed a meter?
By piling inflexible rules atop one another, San Francisco is once again revealing a progressive-utopian streak that runs through its governance. This tendency is perhaps most clearly illustrated in the city’s hilarious attempt to procure new trash cans for its streets. At the outset in 2018, Lydia Chávez of Mission Local noted, local officials wanted an aesthetically pleasing trash can that offered all of the following features: “a rolling inside can for easy emptying, a sensor to alert workers when a can is full, durability to withstand street life, and be tamper-proof.” Who can argue with the desirability of anything on that wish list?
But to get all that in one commercially available product, you would have to spend $3,900 per trash can. Confronted with the hard cost of its stated requirements, San Francisco County officials could have ponied up—or settled for a functional but less-than-perfect trash can. Incredibly, however, they settled on the third-best option: About three years ago, San Francisco embarked on a yearslong process to design its own bespoke trash cans from scratch. The cost “could now hit as high as $5,000 a can,” Chávez reported in September. “San Francisco will spend from $6.6 million to $16.5 million to replace the city’s existing public trash cans” by current estimates, but “who knows what things will cost when the manufacturing actually commences.”
This is what happens when you solicit input from everyone about all the things that would be good, then create a process that discourages compromise on any of those issues, even to the detriment of what was supposed to be your primary goal—whether that goal is procuring new trash cans or creating an outdoor-dining culture.
In a perfect world, San Francisco could allow curbside tables, reaping all the attendant benefits, while consulting all community stakeholders and having zero effect on parking, meter revenue, bike lanes, transit stops, utilities, or emergency access. In the real world, the perfect is often the enemy of the good. Progressive utopian proceduralism doesn’t improve government but renders it absurd.
Many of San Francisco’s streets abound with people who have nowhere to live. Pedestrians routinely walk past used needles, human waste, and parked cars whose windows have been smashed in burglaries. Is hyper-attentiveness to whether parklets are up to a stringent code a defensible priority?
San Francisco–style progressives aren’t the only Californians endangering outdoor dining. In San Clemente, a successful effort to remove some parklets originated with downtown merchants who wanted parking for their customers. In Carmel, some residents played to their city’s snooty stereotype and complained that parklets conflict with “village character.” People who oppose outdoor dining are entitled to their views, of course. But in most places they are a small faction. The greater obstacle to what most people want, in my estimation, is officials who profess to support outdoor dining but design rules that make it practically impossible.
Rules, once enacted, tend to stick around. State Senator Wiener is correct when he observes, “If a city had come forward before the pandemic and said, ‘Let’s dramatically expand outdoor dining,’ there would have been a lot of pushback. Like, ‘Whoa, what’s going to happen to the neighborhood? We need parking.’ This is not a mysterious unknown now. Not everybody likes it, but most people do. They love it.”
But Californians who have awakened to the benefits of outdoor dining will have to protect it at the ballot box. Wiener’s bill authorizes the extension of temporary permits for outdoor dining, which are ultimately under the control of a state alcoholic-beverage commission that could end a highly beneficial experiment at any time.
That, too, is absurd. Californians were ill-served by the state’s unaccountable alcohol-regulatory bureaucracy for decades, and only the emergency suspension of its rules since last year has clarified how unnecessary they always were. Restaurant owners who invest in outdoor spaces should never lose them at the ABC’s whim. For that reason, California residents should use the ballot-initiative process to curtail or eliminate the ABC’s authority to impede where we drink our Pacifico with dinner. We should tell our local officials to ease up too. It shouldn’t have taken a pandemic to give Californians—or anyone else—the simple communal pleasure of dining outdoors.
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