Kiosks and open air cafes may be placed within a publicly accessible open area upon certification, pursuant to this Section. Such features shall be treated as permitted obstructions. Only uses permitted by the applicable district regulations may occupy publicly accessible open areas or front on publicly accessible open areas.

(a)        Kiosks

Where a kiosk is provided, it shall be a one-story temporary or permanent structure that is substantially open and transparent as approved by the Department of Buildings in conformance with the Building Code. Kiosks, including roofed areas, shall not occupy an area in excess of 100 square feet per kiosk. One kiosk is permitted for every 5,000 square feet of publicly accessible open area, exclusive of areas occupied by other approved kiosks or open air cafes. Kiosk placement shall not impede or be located within any pedestrian circulation path. Any area occupied by a kiosk shall be excluded from the calculation of floor area. Kiosks may be occupied only by uses permitted by the applicable district regulations such as news, book or magazine stands, food or drink service, flower stands, information booths, or other activities that promote the public use and enjoyment of the publicly accessible open area. Any kitchen equipment shall be stored entirely within the kiosk.

Kiosks must be in operation and provide service a minimum of 225 days per year. However, kiosks may operate for fewer days in accordance with conditions set forth in paragraph (c) of this Section.

Notwithstanding the provisions of Section 32-41 (Enclosure Within Buildings), outdoor eating services or uses occupying kiosks may serve customers in a publicly accessible open area through open windows.

(b)        Open air cafes

Where an open air cafe is provided, it shall be a permanently unenclosed restaurant or eating or drinking place, permitted by applicable district regulations, which may have waiter or table service, and shall be open to the sky except that it may have umbrellas, temporary fabric roofs with no vertical supports in conformance with the Building Code, and removable heating lamps. Open air cafes shall occupy an aggregate area not more than 20 percent of the total area of the publicly accessible open area. Publicly accessible open areas less than 10 feet in width that are located between separate sections of the same open air cafe or between sections of an open air cafe and a kiosk that provides service for such cafe must be included in the calculation of the maximum aggregate area of the open air cafe. Open air cafes shall be located along the edge of the publicly accessible open area, except for open air cafes located within publicly accessible open areas greater than 30,000 square feet in area. Open air cafes may not occupy more than one third of any street frontage of the publicly accessible open area and may not contain any required circulation paths. An open air cafe must be accessible from all sides where there is a boundary with the remainder of the publicly accessible open area, except where there are planters or walls approved pursuant to a prior certification for an open air cafe. Subject to the foregoing exception, fences, planters, walls, fabric dividers or other barriers that separate open air cafe areas from the publicly accessible open area or sidewalk are prohibited. All furnishings of an open air cafe, including tables, chairs, bussing stations, and heating lamps, shall be completely removed from the publicly accessible open area when the open air cafe is not in active use, except that tables and chairs may remain in the publicly accessible open area if they are unsecured and may be used by the public without restriction. No kitchen equipment shall be installed within an open air cafe; kitchen equipment, however, may be contained in a kiosk adjoining an open air cafe. An open air cafe qualifying as a permitted obstruction shall be excluded from the definition of floor area.

The exterior corners of the border of the space to be occupied by an open air cafe shall be marked on the ground by a line painted with white latex traffic or zone marking paint. The line shall be one inch wide and three inches in length on each side of the cafe border from the point where the borders intersect at an angled corner. In addition, a line one inch wide and three inches long shall be marked on the ground at intervals of no more than five feet starting from the end point of the line marking the cafe corners.

Open air cafes must be in operation and provide service a minimum of 225 days per year.

Open air cafes shall be located at the same elevation as an adjoining public plaza and sidewalk area, except for platforms that shall not exceed six inches in height.

(c)        Certification

Kiosks and open air cafes may be placed within the area of a publicly accessible open area upon certification by the Chairperson of the City Planning Commission to the Commissioner of Buildings, that:

(1)        such use promotes public use and enjoyment of the publicly accessible open area;

(2)        such use complements desirable uses in the surrounding area;

(3)        the owner of such use or the building owner shall be responsible for the maintenance of such kiosk or open air cafe, which shall be located within areas designated on building plans as available for occupancy by such uses and no encroachment by a kiosk or open air cafe outside an area so designated shall be permitted;

(4)        such use does not adversely impact visual and physical access to and throughout the publicly accessible open area;

(5)        such use, when located within a public plaza, is provided in accordance with all the requirements set forth in this Section;

(6)        for kiosks and open air cafes located within an existing publicly accessible open area, such use is proposed as part of a general improvement of the publicly accessible open area where necessary, including as much landscaping and public seating as is feasible, in accordance with the standards for public plazas;

(7)        a sign shall be provided in public view within the cafe area indicating the days and hours of operation of such cafe; and

(8)        for kiosks that are in operation less than 225 days per year, an off-season plan has been submitted to the Chairperson showing that such kiosks will be completely removed from the publicly accessible open area when not in operation, that the area previously occupied by the kiosk is returned to public use and such area is in compliance with the applicable publicly accessible open area design standards.

(d)        Process

An application for certification shall be filed with the Chairperson of the City Planning Commission, and the Chairperson shall furnish a copy of the application for such certification to the affected Community Board at the earliest possible stage. The Chairperson will give due consideration to the Community Board’s opinion as to the appropriateness of such a facility in the area and shall respond to such application for certification within 60 days of the application's receipt.

The Chairperson shall file any such certification with the City Council. The Council, within 20 days of such filing, may resolve by majority vote to review such certification. If the Council so resolves, within 50 days of the filing of the Chairperson's certification, the Council shall hold a public hearing and may approve or disapprove such certification. If, within the time periods provided for in this Section, the Council fails to act on the Chairperson's certification, the Council shall be deemed to have approved such certification.

Such certification shall be effective for a period of three years.

All applications for the placement of kiosks or open air cafes shall include a detailed site plan or plans indicating compliance with the provisions of this Section, including the layout and number of tables, chairs, restaurant equipment and heating lamps, as well as the storage location for periods when the kiosk or open air cafe is closed. Where a kiosk or open air cafe is to be located within an existing publicly accessible open area, each kiosk or open air cafe application must be accompanied by a compliance report in accordance with the requirements of Section 37-78, paragraph (c).

Where design changes to publicly accessible open areas are necessary in order to accommodate such kiosk or open air cafe, or to comply with paragraph (c)(6) of this Section, a certification pursuant to Section 37-625 (Design changes) shall be required, except that within the Special Lower Manhattan District, design changes to a publicly accessible open area pursuant to the provisions of Section 91-832 (Plaza improvements) as part of a certification pursuant to Section 91-83 (Retail Uses Within Existing Arcades), an authorization pursuant to Section 91-841 (Authorization for retail uses within existing arcades) or a certification pursuant to Section 91-837 (Subsequent design changes) may satisfy the requirements in paragraph (c)(6) of this Section.

All such plans for kiosks or open air cafes, once certified, shall be filed and duly recorded in the Borough Office of the City Register of the City of New York, indexed against the property in the form of a legal instrument providing notice of the certification for the kiosk or open air cafe, pursuant to this Section. The form and contents of the legal instrument shall be satisfactory to the Chairperson, and the filing and recording of such instrument shall be a precondition for the placement of the kiosk or open air cafe within the publicly accessible open area.