In recent weeks, states and cities have begun to adopt “open streets” rules that will expand outdoor dining options in the wake of COVID-19. The idea is that even if restaurant dining rooms are still closed, people can safely socially distance while eating outside, thus allowing restaurants to rehire some staff and stay in business. In order to facilitate these goals, some cities are expanding existing sidewalk dining permit programs, sometimes waiving or reducing fees. Others are closing off certain roads to cars and allowing restaurants to place tables in parking spaces and streets. While some business owners worry about lack of parking affecting curbside pickup or shopping, most restaurateurs and public space advocates seem to support these changes.

But here’s where it gets complicated, from an equity perspective. This country is no stranger to exclusion by design. We have built bridges so low that buses could not pass under them, ensuring that those who rely on buses for transportation could not easily get to beaches on the other side. We have designed highways that cut through and destroyed communities of color. We put in place dead end and one-way streets to make areas more confusing, and thus less likely to be accessed, by those from elsewhere. And we regularly create spaces, and enforce norms in those spaces, that make it clear who is welcome and who is not.

Make no mistake, we must find ways to safely re-engage our economy, and saving local businesses like restaurants is key to keeping our communities vibrant and growing. But allowing restaurants to take over sidewalks and streets is an example of the privatization of public space, which runs the risk of creating exclusionary environments. In many communities that already allow al fresco dining, local regulations require restaurants to leave a certain amount of space on the sidewalks for passage by pedestrians, wheelchairs and strollers. But that means in many cases half of the usable sidewalk, or more, is being occupied by seating for a private entity. Further, in most instances, only patrons of the bar or restaurant that has put out those tables may sit at them. This is especially ironic when considered in contrast to laws that criminalize homelessness, which might result in the fine or arrest of a person experiencing homelessness sitting on that same sidewalk.

In allowing outdoor dining in public spaces – especially in the context of social distancing – cities are surely attempting to strike a balance between public health, economic recovery, activating their communities, and providing public access to streets and sidewalks. But a more fundamental issue is in play here: How available should public space be for use by the public? If these streets are closed to cars, ostensibly that means they are open for bicycles and pedestrians. Creating more open space for people to recreate and use alternative means of transportation like bicycles is a positive change. But if most of the street is clogged with tables that are for the exclusive use of a private establishment, that creates an environment where only those with money to patronize those establishments may occupy the public space. A better rule might be the one imposed on entities in San Francisco that create parklets in parking spaces: Tables and benches in those spaces are provided for the use of anyone, whether paying guests or not. This would allow restaurants to make use of expanded outdoor dining options without excluding other members of the public who want to use those spaces.

Of course, we already privatize a lot of our public space, much of it through something as inefficient as car storage – feeding a parking meter – rather than active use by people. Therefore, it is quite possible that this additional privatization of our public space is not concerning to most people; anything is better than cars. Indeed, most commentators who have discussed the current expansion of outdoor dining focus exclusively on the way these policies will benefit restaurants, which will in turn bring additional life to streets that would otherwise be occupied with cars.

However, some have referred to the intrusion of private dining into public space as “café creep,” and the concern is, where does this expansion stop? What percentage of our public space should be dedicated to private, paying users? What value do we seek to obtain from our public goods? Is public space ever truly for everyone? Given our current crisis, it is possible that now is not the time for these questions. Perhaps the current balance weighs in favor of kickstarting the economy and saving local businesses: public purposes. But these issues should at least be part of the discussion being had by local planners and lawmakers. As states and cities seek creative ways to reopen their economies while keeping their communities safe, they must keep in mind both who will benefit from their new policies, and who will be excluded.

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