alking along Brooklyn’s 5th Avenue one Wednesday morning, I came across an odd scene. Two police officers, peering into the window of one of the now ubiquitous outdoor dining pavilions while talking to a restaurant owner. “Was there any damage,” one of the officers asked. “No, not other than the lock.” 

Someone had broken into the covered cabana and taken refuge at some point in the night. They left before the restaurant would open in the early afternoon. They did not take anything. They did not break anything. It is unclear what they did inside the space, but after a week of intense heat, violent thunderstorms, and a haze of smoke from Canadian and Western wildfires, it is safe to assume their temporary incursion offered some level of respite. A month earlier, a homeless person seeking similar respite underneath the Brooklyn-Queens Expressway, about 3 miles from the restaurant, was killed when they were struck by a vehicle looking for parking under the highway. For nearly a week in July 2021, a contingent of New York City’s homeless population are protesting at City Hall, asking for the right to stay in a hotel, for the right to not be placed back into a shelter: Rights which, for many, mean most of all the right to not be back on the street.

Technically, the shelter, like most of these spaces, sat squarely on the street. Constructed by the adjacent restaurant as part of New York City’s Open Restaurants program, the space is part of the expanded outdoor area programs created by the city in the wake of the Coronavirus pandemic (for more details see Angiello 2021). The structure itself–that is, the unique configuration of plywood, 2x framing wood, and galvanized steel quickly assembled to supply outdoor eating space during the Coronavirus pandemic–belonged to the restaurant. But what about the street itself? Who has a right to put a lock on it? To say, “this is ours and the police have the responsibility to address any incursion into this space?” What response did the business owner expect from the police in this situation?

An example of an outdoor dining shelter with sidewalk seating on Brooklyn's 5th Avenue.
An outdoor dining shelter built on the sidewalk so that parking could be maintained.

As of June 24, 2021, the Open Restaurants program had received 11,233 applications, of which 97% (10,910) were approved. Applicants could choose to request a permit for outdoor dining only on the sidewalk (3683 approved applications), on the roadway as in the case of the temporary shelter above (1411 approved applications), or both (5816 approved applications). No one applied for both and was only approved for either one or the other, meaning all applications that requested both roadway and sidewalk space for dining were approved. Taken together, these approved applications have a total area of 5,570,222 sqFt, or about 127.87 acres. 

Because access is limited to operating hours and as an extension of restaurant interiors, the program turns public space (either extant or potential) and turns it into enclosed property coded as private. This move inverts stated planning goals which seek to expand urban public space by turning these areas into publicly-owned private spaces, as opposed to the city’s 388 privately-owned public spaces or 24 Street Seats--a version of sidewalk or street dining but which are fully open to the public and not tied to a specific restaurant.  Restaurant sheds were initially compared to both programs. 

The location and relative size of approved Open Restaurant applications in New York City’s five boroughs.

Because the new outdoor dining hubs sit on the roadway or sidewalk, the NYC Department of Transportation handles inspections for compliance with rules relating to spacing and construction while the Department of Health and Mental Hygiene includes the new outdoor dining areas in their standard food safety inspections as part of their regular review. Initially a sort of free-for-all, resulting in unsafe conditions for diners (CW link includes video of a truck crashing into an early outdoor dining area), New York City, New York State, and the DOT applied a standard set of rules to which all Open Restaurants must comply. As of July 1, 2021, the DOT has performed 47,804 inspections. Of the 42,737 results made available with valid location data, 8,280 (19%) were found to be non-compliant and 2,232 (5%) inspections resulted in a cease-and-desist order (there are several duplicates in each category, including those which eventually reached compliance). By comparison, 9,446 inspections resulted in locations being found to be compliant (23%).

Support for the program has been mixed. Some small business advocates have called for a permanent change to allow new dining programs (which the City Planning Commission has recently approved). At the same time, public transit advocates have highlighted the ways in which open restaurants, by virtue of reducing the amount of space dedicated to motor vehicles, counter an ongoing revanchist movement focused on making the city more car-friendly. Opposition to the program has decried both the loss of parking and the non-democratic nature of the program. The reference to cars is perhaps apt. In most cases, dining sheds do take parking spaces, and most have been built in a way to not interfere with bike lanes. Sidewalk seating reduces the amount of space on the sidewalk itself, but those are removed outside of business hours. The effect is that restaurants have parked on the street with the noted difference that they are not subject to meters or alternate side parking rules. 

Taking it to the street

A society of split men and women badly needs a terrain on which people can come together to heal their inner wounds—or at least to treat them—and advance from political to human emancipation. Berman 1986, 476-477

Marshall Berman, (1986, 477) reading Marx’s “On the Jewish Question” identifies a deeply human need, particularly in the United States where “our republic inherited no splendid monuments and plazas” in which we can experience collective life. “Sometimes,” he states, “people are lucky enough to get Central Parks and Washington Squares” but even these are sites of conflict between the need for collective life  and an egoistic desire for privacy, solitude, and the unique needs of individual life. Even when they act of spaces of collective jouissance, the question of who belongs never leaves. Or, as Berman (1986, 480) puts it, “anyone who wants to claim a share of public space in a modern city is forced to share it with some of the people of the underclass, and so to think about where he stands in relation to them.” What, in the context of Open Restaurants which make a claim to the public space of the street, is the relation to the underclass? Is it antagonistic? Why should it involve the police? And what do small businesses’ worries about “invasions” of such putatively private spaces say about the extent to which such space is actually public?

The reality, whether we collectively care to admit or not is that there is nothing public about them. They are intimately tied to capitalist economies, in which even the underclass could be allowed so long as they can consume. Rather than being “open” (or as Berman [1986] would state it, “open-minded”) the public space of the city’s streets and sidewalks are (en)closed; turned from public (in the case of sidewalks, see Loukaitou-Sideris and Ehrenfeucht 2009) or at the very least potential public space to something which only exists as an extension of private space into the public sphere. “Open” restaurants are able to be policed, able to be securitized, and able to be closed—a privilege rarely extended even to extant Privately-Owned Public Spaces and Street Seats in similar situations even if there are secured, securitized, and surveilled in other ways (Németh 2009; Németh and Schmidt 2011).

It didn’t have to be this way. Prior to the creation of the Open Restaurants program, people (albeit mostly white and wealthier than most of the city) had taken the streets for themselves by ordering takeout food and eating it in the public spaces that would later be taken over by Open Restaurants dining structures. For others, the street and the sidewalk had always been an open space through which members of the community could come together to celebrate, to mourn, or simply to talk. Thinking about other forms in which open space might be centered on such communal possibilities opens room for imagining a pandemic city otherwise. 

Restaurant goers order takeout food and cocktails and reclaim the parking lane as a social space prior to the creation of the Open Restaurants program. Here, a car is converted to a table, checkered tablecloth and all.
Residents in Brooklyn's Sunset Park neighborhood take over a sidewalk and truck loading zone to have a gathering with food, music, and drinks during the Coronavirus pandemic.

Open-minded space, or the pandemic city otherwise?

When we encounter categories like success/failure or normal/deviant, we need to ask: By what criteria? By whose criteria? For what purposes? In whose interests? When we hear about successful public spaces, we should ask: Successful for what? Who benefits from a police definition of success, that is, success as an absence of trouble?  Berman 1986, 481

There are more than 4,100 parks in New York City that take up less space than the area taken up by the city’s Open Restaurants program. What if the response to the pandemic was not to extend the private to the public, not to enclose streets and sidewalks, but to radically open them, to break down, as Berman (1986) suggests the dualism between the “ordinary citizen” and the “deviant” and to instead think of the city as space for all? What, then, of the pandemic city? That urban spaces required tweaks due to the Coronavirus pandemic is not controversial. That these tweaks could be made permanent, producing greener, more resilient, or just more enjoyable cities offers a useful insight for geographers and others interested in the connections between society and public space (Angiello 2021; Finn 2020). But most importantly, the ease with which space was ceded to allow for one group a semblance of normality and for another a semblance of survival shows how easy it could be to do something different, to create a city otherwise, and to take steps toward an open-minded city.

In the first photo in this essay, there is a “sharrow” in the road, indicating that cyclists and drivers must share that space. Why couldn’t the area given to restaurants have previously been made a protected bike lane? Why can’t it still? Berman (1986) argues that changes to public space cannot come from above, cannot come from the position of authority of the city planner or the mayor, that they must emerge from below. In the first months of Coronavirus pandemic, as thousands died, and before they could become restaurants the streets became morgues, people in New York City—at least those of us who stayed—found creative ways to reclaim space, to see our friends, families, and neighbors. There were moments when, experiencing a deep reckoning with the world around us—with systemic anti-Black and anti-Asian racism, with police violence, with the emergence of widespread mutual aid projects shining a spotlight on the failure of the government to address even out most basic needs—that it felt as though things might change for the better. Instead, we have only created a city with more places to police.


Angiello G (2021) Toward greener and pandemic-proof cities: North American cities policy responses to Covid-19 outbreak, TeMA: Journal of Land Use, Mobility and Environment, 1, 105-111. doi:10.6092/1970-9870/7922
Berman M (1986) Take it to the streets: conflict and community in public space. Dissent, 33, 476-485.
Finn D (2020) Streets, Sidewalks and COVID-19: Reimagining New York City’s Public Realm as a Tool for Crisis Management, Journal of Extreme Events, 7(4), 2150006. doi: 10.1142/S2345737621500068
Loukaitou-Sideris A. and Ehrenfeucht R (2009) Sidewalks: Conflict and Negotiation over Public Space. Cambridge, MA: MIT Press.
Németh J (2009) Defining a Public: The Management of Privately Owned Public Space, Urban Studies, 46(11), 2463–2490. doi:10.1177/0042098009342903.
Németh J and Schmidt S (2011) The Privatization of Public Space: Modeling and Measuring Publicness, Environment and Planning B: Planning and Design, 38(1), 5–23. doi:10.1068/b36057.

Josh (they/them) is assistant professor of anthropology and environmental studies at Wagner College in Staten Island, NY. Originally from Hollywood, FL they now live in Sunset Park, Brooklyn and write about the politics of the built environment.