Jim Martinez Weighs In On Temporary Outdoor Dining Problems

[JK: Jim Martinez is a registered architect. A stalwart preservationist and founding member of the Saratoga Springs Preservation Foundation, he has authored many articles about our surviving resources and their stewardship.]

The COVID-19 emergency declarations will end on 11 May 2023. This follows Governor Hochul’s announcement on 15 June 2021, that social distancing requirements and seating distance in restaurants would no longer be needed. Yet today, just shy of 2 years of that proclamation, we are still accommodating extra seating for select businesses in the public rights-of-way (ROW) to lessees and property owners, reducing and in some cases ignoring sidewalk Fire Code and City Code requirements, eliminating valuable public parking and challenging the distinguished visual landscape of our heralded historic downtown district.  

Pandemic emergency responses aside, should we question the legitimacy of the taking of public land for private use? The Design Review Board (DRB) was given design review and approval of the outdoor dining corrals, but the legitimacy of the construction barriers was off the table. At their March 3rd meeting, the DRB were issued prescriptive guidelines as they were presented with 12 applications and a new sidewalk removal request. Were these guidelines vetted by the community, the preservationists or by the Departments of Public Works and Public Safety that might impart code compliance standards? The DRB was informed that the approval and review of these barriers was not part of their charge, instead to simply comment on their compatibility with guidelines questionably unfit for our historic and sacred downtown. The DRB should find them unacceptable in our once great city center.  

The issue overlooked by design was the legitimacy of the concrete barriers recently purchased by the city for the express use by select businesses to be maintained by the Public Works Department for the lessees and property owners to increase their commercial space in the public right of way two years after the pandemic emergency was lifted. Is this municipal option open to all residents on public throughfares?  

Additionally, last year Short Alley, a posted ‘No Parking Fire Lane’ was closed to traffic to accommodate dining along Henry Street. Unsecured flammable propane tanks along with an assortment of miscellaneous detritus was permitted to be stored openly in the fire lane one block from our fire station. Post pandemic restrictions, some businesses on Phila Street have increased their seating by 50% at the expense of the public having to navigate between “The Pillars of Hercules” on one of our historic feeder streets and the loss of valued public parking. Recently a restaurant next to Congress Park has received tentative approval to use its public rights-of-way sidewalk for dining, resulting in forcing all pedestrians into the road. This property already received approval in the past for the construction of an entry portico, stairs and ramps on the public ROW sidewalk, conditioned on preserving the resulting path clear for the public. Is it legal to remove the sidewalk completely against state and local codes?  

Was the tentative approval of this application based on consultation with our city departments, inspectors and planners? Sidewalks and cleared paths on unpaved level surfaces are specifically defined in our City Code as to be a minimum of 5 feet wide, so why is the city now allowing in some instances 4 feet to be the distance between table edges in our downtown core (Caroline Street) and in some others removing them completely? How will this reduced dimension accommodate wheelchairs and baby carriages, let alone the public at large? Have accessible sidewalks, adherence to traffic controls (fire lanes) and our city codes become selective and irrelevant? 

In conducting a code review, the researcher understands that codes are complimentary. One code or one section of a code may be usurped by another more restrictive requirement in another section or another code. Our City Code establishes a five-foot minimum width for public passages on city streets. While another code may permit a four-foot width requirement for accessibility, the larger requirement is what determines the acceptable minimum dimension.  

From our City Code:  


Per City Code § 203-23.A.(2)(a), “The minimum width [of sidewalks] shall be 5.0 feet.” However, Fire Code imposes greater space requirements at the public right-of-way. 

 Seems this UDO provision relating to signs (Article 12) should also apply to any usage of outdoor dining space:  

“C. Encroachment into Right-of-Way 

For a sign to permissibly extend into a public right-of-way, prior review and approval by the Commissioner of Public Works, after consultation with the Department of Public Safety, is required. Adherence to the design standards included in this Article does not imply approval of an encroachment.” 

 The City Code also defines the City’s “Fire Limits, which used to have specific requirements as to construction types allowed therein. Typically, only non-combustible construction is allowed within fire limits. 

One reason that Public Safety needs to review sign installation (and should also regulate sidewalk dining constructions in the public right-of-way) is that the Fire Code regulates egress from buildings.  

Per 2020 Fire Code of NYS: 

 EXIT DISCHARGE. That portion of a means of egress system between the termination of an exit and a public way. 

 PUBLIC WAY. A street, alley or other parcel of land open to the outside air leading to a street, that has been deeded, dedicated or otherwise permanently appropriated to the public for public use and which has a clear width and height of not less than 10 feet (3048 mm). 

1028.5 Access to a Public Way 

The exit discharge shall provide a direct and unobstructed access to a public way. 

Exception: Where access to a public way cannot be provided, a safe dispersal area shall be supplied where all of the following are met: 

The area shall be of a size to accommodate not less than 5 square feet (0.46 m2) for each person. 

The area shall be located on the same lot not less than 50 feet (15 240 mm) away from the building requiring egress. 

The area shall be permanently maintained and identified as a safe dispersal area. 

The area should be provided with a safe and unobstructed path of travel from the building. 

Taking up the entire public right-of-way/sidewalk with dining adversely impacts the available public way for safe egress. 


We should also understand that the taking of these taxpayer streets and sidewalks are being offered for a pittance to selective lessees who may or may not be city taxpayers. It should be noted that these gifted property extensions are set up by the longitudinal street facing dimensions which at best are discriminatory against businesses with limited frontage or against those restaurants on thoroughfares considered unacceptable. Are these giftings and fee structures transparent and fair let alone legal? 

Codes and requirements are usually the hurdle for most city projects, whether on private parcels or municipal lands. I can remember when this city recognized the attractiveness of its downtown, passing legislation that respected its surviving resources and established guidelines for new contemporary additions to the cityscape. The creation of a review commission charged with embracing the guidelines protects our legacy.  

Such traffic barriers are questionably legal, ugly and have no place in the public street outside of a short-term emergency.  

2 thoughts on “Jim Martinez Weighs In On Temporary Outdoor Dining Problems”

  1. John,

    Jim has the credentials to speak excathedra on his question and he should be heard not only by the city council, city council candidates, DBA , the Preservation Foundation, other public and not-not-for profit agencies and all caring residents who collectively fought the good fight to transform Downtown into the small urban oasis it had become.

    But I think it undeniable that over the last few years there has been a notable decline in the overall quality of portions of the streetscapes resulting in part from presumably permitted outdoor drinking establishments sandwiched between the sidewalk and curb on the west side of Broadway and characterized by artificial grass, plastic chains and chairs. And vending from tables set on the sidewalk and merchandise set against some storefronts also tend to degrade the street.

    Below I have pasted in, significant part, relevant sections of the City Code governing the temporary use of public property for outdoor dining and drinking. The entire article is available on the city website.

    The original legislative purpose and intent of the permitted expansion of outdoor dining and drinking further into the public right-of-way an even certain street segments was to buffer such businesses from the economic downturn brought by the COVID-19 epidemic. It was fostered by executive orders.

    Thus, the city code was amended to allow certain bars and restaurants, following an application process, to take advantage of the then governor’s action. But it was intended as a temporary measure (see Sec. 136-33.1 below).

    The COVID “emergency” has been lifted but the greatly liberalized and expanded outdoor dining and drinking
    section of the City Code remains. It should now be reconsidered to access its continued alignment with state rule and regulation, possible amendments based on actual experience and consultation DR, DBA, PS and other interests.

    Based on some of the comments made by John Kaufman and Jim there appears to be a need to review the various roles played by city officials and staff in the review and approval process and if they are consistent with the code.

    It is also noted that the §136-33.11 (see below) requires a schedule of fees to be developed prior to each season. Such schedule shall be adopted by resolution of the City Council. Thus, if, as John Kaufman suggests, the council has yet to adopt a fee schedule for the 2023 season, NO temporary permits may be issued (or at least not legally).

    I would think the City Council, particularly the commissioner of finance, would want to weigh in on this. And its time to take up a more rigorous enforcement of the body of codes and ordinances that regulate the Downtown streetscape before much longer.

    If the city council has surrendered its collective authority here it’s time to reclaim it. And thanks to John and Jim for bring this matter to the community’s attention.

    Lew Benton

    Lodging and Eating and Drinking Establishments

    § 136-33.1 Purpose and intent.
    The ongoing COVID-19 pandemic has caused countless unforeseeable difficulties in municipalities across our nation. It is in the public interest at this time for every municipality to make reasonable accommodations and allowances for persons and businesses who have received municipal licenses, particularly when the licensed activities provide services to the public. This article establishes rules and regulations under which the holder of a valid license for an eating and drinking establishment under Article II of this chapter may apply for a permit to use, for a temporary period of time as stated herein, certain specified public property of the City of Saratoga Springs as a temporary outdoor seating area for said eating and drinking establishment.

    § 136-33.2 Construction with other laws.
    The rules and regulations established in this article shall be in addition to and not in limitation of the other articles in this chapter. If any rule or regulation in this article shall be in conflict with any other rule or regulation elsewhere in this chapter, as said rules or regulations may be applicable to a temporary outdoor seating area permit as herein described, the rules and regulations of this article shall have priority.
    § 136-33.3 Establishment of temporary outdoor seating areas.

    [Amended 7-5-2022]
    The City Council hereby designates the Commissioner of Accounts, with the advice and consent of the Commissioner of Public Works, as the officials who together shall have authority to establish areas of public property, including but not limited to sidewalks, as well as privately owned parking facilities and privately owned lands immediately contiguous to eating and drinking establishments licensed under this chapter when such privately owned parking lots and privately owned lands have been opened to and made accessible to the general public, for use by licensed eating and drinking establishments as temporary outdoor seating areas. Temporary outdoor seating areas shall operate in compliance with the New York State Uniform Codes, the Americans with Disabilities Act,[1] and the applicable provisions of the Code of the City of Saratoga Springs. Notwithstanding any other provision of this article, all licenses for temporary outdoor seating areas issued for privately owned parking facilities and privately owned lands shall expire at 12:00 midnight on November 1, 2022.

    § 136-33.4 Application for permit.
    Any person or legal entity who is the holder of a valid license for an eating and drinking establishment issued pursuant to Article II of this chapter may make application to operate a temporary outdoor seating area, in connection with said eating and drinking establishment. The application shall be in writing on forms provided by the Department of Accounts, and shall contain the following:

    § 136-33.5 Review of applications.
    [Amended 11-1-2022]

    A. Applications shall be submitted to the Department of Accounts for review. Upon receipt, the Department of Accounts shall refer the application to the Committee on Outdoor Dining for comments and recommendations. In addition to and not in limitation of the foregoing, the Department of Accounts shall also refer applications for locations within Architectural Review Districts, Historic Review Districts, or City Landmark Districts to the City’s Design Review Board (DRB) for review. The Committee on Outdoor Dining shall be constituted by the following members: the Battalion Chief of the Fire Department, the Director of Risk and Safety, the Department of Public Works Business Manager, a representative from the Mayor’s office, and a representative from the Finance Department. The Department of Accounts may then issue a permit, conditioned upon such reasonable limitations and requirements as it may deem necessary in the interest of public health, safety and welfare. Final approval of permits shall be authorized by the City Council upon motion and vote.

    B. For temporary outdoor dining establishments, beginning on January 1, 2023, the applicant must obtain the approval of the Design Review Board (DRB) if the outdoor dining location is located within any area designated within an Architectural Review District, Historic Review District, or City Landmark District as described in the Unified Development Ordinance.[1] The DRB shall use the review criteria for such plans relating to an outdoor dining establishment’s specific location, size and structure for its compatibility of scale, design and material as described in § 240-13.9 of the Unified Development Ordinance. The DRB shall only have advisory review over colors used for the temporary outdoor seating locations. Any alteration in the plans for an outdoor dining location requires approval from the DRB. Once approval is granted by the DRB, the approved plans are valid and do not require annual approval. The DRB shall only review applications which have the written approval from the Departments of Public Works and Public Safety and the Building Department.

    § 136-33.11 Fees.
    A schedule of fees shall be developed prior to each season. Such schedule shall be adopted by resolution of the City Council.

    Liked by 2 people

  2. Thank you Jim for your astute comments.

    So much for city code enforcement. (When I was remodeling my home I was flagged for having a bannister 1″ lower than required.) This was pushed through without any intelligent planning and should be carefully reviewed by someone other than the city council. Also with the pandemic over and with the public again patronizing our many wonderful restaurants are these public spaces really necessary? The concrete barriers are quite unsightly!

    Liked by 1 person

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: