‘Incredibly unfair’: New outdoor dining rules make patio seating difficult for some Boston restaurants

With the season set to start Friday, restaurants are still waiting on paperwork, ordering new barriers, and wondering if it’s all worth the time and money.

Tres Gatos owner David Doyle prepared his outdoor propane heaters on the patio in Jamaica Plain. He invested thousands in additional insurance and new barriers for temporary outdoor seating this season.Craig F. Walker/Globe Staff/The Boston Globe

What started as a pandemic-era lifeline for Boston restaurants has descended into confusion and concern.

The outdoor dining pilot program, which kicks off its third year Friday, has sparked worry among some of the very restaurants the initiative hopes to help, far beyond the kerfuffle in the North End.

While North End restaurateurs negotiate with Mayor Michelle Wu over extra fees as high as a $7,500 outdoor dining fee and shorter season in the neighborhood, their peers across the city say they, too, are struggling with new rules.

Even with outdoor dining starting, “there’s a number of things unsorted,” said David Doyle, the owner of Tres Gatos and Casa Verde in Jamaica Plain.

Among them is a 22-page packet of city guidelines that lays out the measures restaurants must abide by if they want outdoor seating, including several new additions this year. Those range from mandatory automobile and workers’ compensation insurance to changes to the type of barriers restaurants can place around their tables. Ropes, planters, and wooden railings are out; restaurants must use concrete jersey or water-filled barriers.

“Given that this is a pilot program, the guidelines have been updated to address the concerns of both business owners and residents in our neighborhoods,” a city spokesperson wrote in a statement.

Boston is in the the final year of the three-year trial launched by then-mayor Martin J. Walsh in 2020 to bolster restaurants weathering COVID by allowing them to set up outdoor dining on public places, such as parking spots and sidewalks. Previously, outdoor dining was only allowed on private property and required approvals from at least five city agencies, along with annual fees and plans drawn up by professionals.

Diners have flocked to the sidewalk seating, and many restaurants doubled, or even tripled, their capacity, which helped them stay afloat. But some neighbors, most intensely in the restaurant-packed North End, have raised concerns about noise, trash, and lost parking.

And this year the rules have grown more stringent, as the Wu administration evaluates the long-term future of outdoor dining. For some, those changes mean the extra seating is no longer worth the cost.

Bessie King and her mother, Julie King, own Villa Mexico Cafe in the Financial District. This winter, they sometimes saw fewer than 100 customers a day. David L. Ryan/Globe Staff

Bessie King of Villa Mexico Cafe had planned to create a sidewalk-level patio in the three parking spots outside her Financial District lunch spot. It would take $10,000 to build, along with barriers and furniture King purchased last year. When finished, the 35 outdoor seats would provide a huge boost in revenue for the cafe, which is too small to accommodate diners inside.

But the new rules don’t allow the barriers King already owns. New ones that qualify will total $5,000, which King said she cannot afford.

“It’s incredibly unfair for small, local restaurants like us,” said King, whose restaurant before the pandemic often had a line of customers down the block for burritos. This winter, she sometimes saw fewer than 100 customers a day.

“The large chains and partnership groups with say, 100 tables, are able to pay $20,000 for outdoor seating. We’re not,” she said. “Independent places are bleeding money.”

Andy Fadous of Gray’s Hall in South Boston agrees. Ahead of the 2021 outdoor dining season, he worked with a landscape architect to create an industrial-style patio that could be deconstructed every year. But now, the barriers don’t comply with the new requirements.

So Fadous ordered 10 barriers at up to $500 each, but they won’t arrive for a month, delaying when he can open his patio. And they’re bigger, which means less space for seating.

“I wish the city hadn’t done this,” Fadous said. “It puts a lot of people in a scramble.”

Debate has been most animated in the North End, where restaurants are facing fees that eateries in other neighborhood are not. Moreover, outdoor dining there doesn’t start until May 1, and must end one month sooner than other neighborhoods. Even so, restaurants elsewhere in Boston are weighing the pros and cons.

A man ate outside Villa Mexico Cafe on Water Street in 2020.Craig F. Walker/Globe Staff

Some see the added guidance as a sign of progress, enacted to help maintain an initiative that is beloved but temporary. Coming just months after the pandemic began, the quick spread of outdoor dining helped hundreds of struggling restaurants, said Steve Clark, chief operating officer at the Massachusetts Restaurant Association. Now, he said, clear standards and safety rules will make it feasible for more eateries to keep patios around for the long run.

“These regulations could slowly lead to permanent outdoor dining,” he said. “It’s one of the true positives that has come out of the pandemic.”

Some restaurants, such as Union Oyster House, have no problem with the new measures. The application process “was seamless,” said employee Wesley Hagan; the restaurant did not face increased insurance or barrier costs. “We have no issues.”

But in Jamaica Plain, the requirements upset Ginger Brown, executive director of JP Centre/South Main Streets. She believes the alterations this year are too similar to the red tape that made outdoor dining permits burdensome before the pandemic.

Getting permission for patio seating then was a difficult navigation for many small businesses, especially lower-income and non-English-speaking restaurant owners.

“Endorsing the 2022 guidelines and the former application process would be akin to acknowledging that disparity and inequity were simply ‘standard practice’ for our city,” she wrote in a letter to Jamaica Plain News. “Our small businesses would once again be victims.”

Of 10 restaurants in Brown’s neighborhood, she said, at least three have been stopped from applying for outdoor seating by the added rules and costs.

“It’s too expensive, too lengthy, and a tedious process,” Brown said.

Surrounded by recently purchased barricades, Tres Gatos owner David Doyle (right) talked with Will Vasquez about deliveries.Craig F. Walker/Globe Staff/The Boston Globe

Citywide, it’s unclear how many new restaurants have been dissuaded by the guidelines. The city did not provide data about how many applications it has received or approved in 2022. Last summer, restaurateurs operated 77 outdoor patios in the North End and 51 in Back Bay, the two neighborhoods with the most al fresco seating.

A spokesperson for Wu said the city will issue final approval of the new regulations after the state finalizes a one-year extension of temporary outdoor dining.

But some who have been waiting for their outdoor permit are losing patience.

Doyle, the Tres Gatos owner, said he submitted his application two weeks ago and has yet to hear back from the city, even though outdoor dining starts Friday. Then there’s the uproar in the North End. “That’s a lot of extra time employees have to spend communicating and responding,” he added. And the $1,000 he spent on automobile insurance, even though his restaurant owns no vehicles.

“We’ve reached a level of exhaustion just trying to understand the guidelines and the rationale behind them,” Doyle said. “At some point, you end up doing things you’re required to do without fully looking at the details, because you have little energy left.”