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San Diego’s climate is famously comfortable almost year-round so, to restaurant owners who turned their dining inside-out during the pandemic, making their outdoor dining structures permanent is a no-brainer.
“If we’re allowed to keep it, it will help us recover,” Chelsea Coleman, owner of The Rose wine bar in South Park.
But unless the City Council votes to extend the lifespan of the temporary permits that make the patio-like seating on parking spaces possible, many of them will soon be illegal. The permit for restaurants expires on July 13, and for other businesses on Aug. 3, according to the city’s website.
“We’re expecting hundreds of these structures to come down because they are solely intended to be temporary,” Elyse Lowe, who directs the city’s development services department and helped facilitate an expedited process to open outdoor dining at the beginning of the pandemic
Amid the chaos and pressure to reopen the local economy, it seems businesses got a little carried away and added more features – like walls, lights and heating – than what the temporary permits intended.
Coleman said she spent around $4,000 on her outdoor dining space, a cost many restauranters said inflated as the price of milled lumber shot up when the economy shut down.
“Honestly, the word among small business owners is that they’ll probably be able to stay in some capacity. So we looked at it as an investment in the future,” Coleman said.
But once the permits expire, and if the Council doesn’t act, the city could choose to sweep up or crack down on everyone who built something that’s not supposed to be there.
“The mayor wants outdoor dining to be a permanent feature in San Diego,” said Dave Rolland, a spokesman for Mayor Todd Gloria. Rolland said the mayor will propose an extension to that emergency ordinance in mid-May.
Even if the Council does extend the emergency rules, there’s still no procedure yet to transition them for good. The city’s planning department is reportedly working on some kind of process allowing businesses to transform their outdoor structures that will be released in the fall, Lowe said.
This all began when Mayor Kevin Faulconer used his executive power last July to waive permits restaurants would otherwise have had to get to put tables and chairs in public rights of ways (like parking spaces and sidewalks). It didn’t allow anyone to build anything, though.
Then came the platforms.
It’s unclear who built the first wooden platform, keeping diners’ feet off an oil-stained asphalt parking space and flush with the curb. Coleman said she waited a few weeks to “watch what other people were doing” before making a move.
“People were building platforms, which we did as well. And after we did that, turns out it was a gray area and no one knew if it was OK,” Coleman said.
Once platforms started popping up, the city engineer stepped in with a design restaurants could copy that was suitable for people with disabilities and accommodating of stormwater drains.
Real problems lie in anything built beyond that. Awnings, canvas draped between wooden beams to create a ceiling, a tufted metal roof – all are technically unpermitted and therefore illegal.
“We didn’t permit any overhead structures,” Lowe said. The city only wanted to see picnic tables and chairs, she said.
Here’s where the gray area gets grayer.
San Diego politicians moved quickly to save businesses by allowing the temporary use of a public land: parking spots. City staff started to issue temporary outdoor business permits, building off the same kind of rules crafted for sidewalk cafes. The process was easy: Fill out a form and submit a picture of your outdoor eatery’s design to the city for a couple hundred bucks. The city issued more than 560 of these temporary permits as of last month. And they’re getting 20-30 more per day, city staff said. Restaurant owners also had to sign what’s called an encroachment maintenance removal agreement, which basically means the city has a right to kick you out of the parking spot.
If a business chose to build anything on top of that parking space, it’s unpermitted. But restaurants moved ahead anyway, spending thousands of dollars on little wooden stages to comfortably host diners. When asked why the city didn’t step in and say anything, Lowe said, “they didn’t follow the regulations … they did the exact opposite, which is to put in permanent structures for an area that wasn’t permitted. We just haven’t done full enforcement.”
So, what now?
One problem is private businesses are using public parking spaces essentially for free. It’s like free rent of a public space for private gain, Lowe said. She added, though, that the city had received almost no complaints about the lost parking.
“There needs to be a policy discussion on the permanent use of the public right of way for public benefit,” Lowe said.
The other problem is California state building code has a ton of rules and requirements for a structure that’s expected to stay put. Permanent buildings require engineering and architectural studies, and compliance with state fire codes, the American Disabilities Act and environmental regulations.
All of that is expensive and time-consuming both for the restauranteur and city staff. Juan Pablo Sánchez, the owner of Super Cocina in City Heights, should know. He said Super Cocina was one of the first restaurants attempting to pioneer a permanent outdoor dining structure over 10 years ago. He hoped the space would both attract diners but also calm traffic whizzing by his restaurant, a section of University Avenue that’s experienced multiple fatalities over the years.
And, as a member of the progressive business group Business for Good (a kind of self-described antithesis of the traditional Chambers of Commerce of the world) Pablo Sánchez saw these outdoor dining spaces as a means for changing the perception of City Heights.
“City Heights has a long history of feeling unsafe. Instead of hiring security and a bunch of cops, having people sitting on the streets creates a feeling a safety,” he said.
Pablo Sánchez said he went through all the necessary studies to get a permanent permit from the city, but the final necessary design was ultimately too expensive.
When the pandemic hit, Pablo Sánchez decided instead to sacrifice some spaces in his private parking lot for a tent, tables and chairs. All he had to do was fill out a form online and send a little design of his space and, poof, temporary permit granted, he said.
“It was awesome. I wish the city would work that way more often,” he said.
Businesses don’t need a temporary business permit to do more business in their own parking lot. But they do have to follow some rules, like fire codes.
City staff said they don’t see any way around putting restauranteurs through a more intensive process to make their outdoor structures permanent and bring their slapdash structures up to code.
Lowe said the city’s taken note of over 800 fire code violations so far. Fire Chief Doug Perry said one of the biggest problems is there’s not always enough room for fire trucks and ladders to set up next to a real building in need of rescue because these structures are in the way. Not to mention if the temporary structure caught fire itself.
“What we know when we go into fires is that building, prior to us arriving, has had full review and been inspected. All we know right now (about the temporary structures) is that there are design professionals who have stamped some of these plans and say they meet requirements,” Perry said.
At the start of 2021, the city started doling out what it called a “soft-handed” enforcement approach. Concerns also grew once gas-powered heaters started making an appearance under unpermitted structures’ ceilings and awnings. So fire officials made rounds letting businesses know they needed to add a fire extinguisher or that they can’t use heaters inside tents, for instance.
“Enforcement has been great. Compliance has been terrible,” Perry said. “They comply when we’re there and we go back any day and they’re using the heaters again.”
Tony Loiacono, who owns Parkhouse Eatery in University Heights, said he put $14,000 into his structure. The extra seating increased his capacity under COVID-19 restrictions by 100 percent, he said. Loiacono expects he’ll probably have to make some adjustments to the space he hopes to make permanent, but it came as a surprise that the structure itself wasn’t technically legal.
“They were very vague with what we were able to do and not do,” Loiacono said.
Correction: After this post initially published, Chelsea Coleman clarified that she spent about $4,000 on her restaurant’s outdoor dining structure. The story has been updated to reflect that total.