Confusion over outdoor dining emerges as temporary permit expiration looms

As temporary permits for outdoor business operations approach their July 13 expiration date, there’s confusion in La Jolla about the next steps to take to keep conducting business on public property.

The temporary permits, called TOBOs, were established by the city of San Diego under an emergency measure during the COVID-19 pandemic to allow businesses to use parking spaces on city streets and other outdoor public areas to help keep them operating and limit the spread of the coronavirus. The popularity and success of such installations led the city to initiate a “Spaces as Places” ordinance to transition the temporary spaces to permanent.

The City Council approved the Spaces as Places program in October and the city began accepting permit applications in January. Spaces as Places is intended only for eating and drinking establishments.

Businesses with temporary outdoor operations permits have until Wednesday, July 13 — when those permits are set to expire — to comply with new regulations and be granted a Spaces as Places permit.

However, in coastal areas such as La Jolla, Spaces and Places can’t take effect until it is reviewed and certified by the California Coastal Commission because the ordinance requires a change to Local Coastal Programs, which serve as planning documents for coastal communities. That review has not yet been scheduled. The commission’s next meeting is set for July 13-15.

Earlier this week, City Councilman Joe LaCava, whose District 1 includes La Jolla, said the city is not yet accepting Spaces as Places applications for businesses in the coastal zone as the city awaits the Coastal Commission review.

But LaCava’s field representative Steve Hadley said at the La Jolla Village Merchants Association meeting June 8 that he had been going door to door throughout La Jolla to help businesses get in compliance with the ordinance by the July 13 deadline. He said he passed out a May 20 letter from Chris Larson in the city’s Development Services Department outlining protocols for applying for the Spaces as Places permit.

“We made sure that everybody who’s out on a sidewalk or in a parking space has some notice and doesn’t suddenly get blindsided,” Hadley said.

The La Jolla Village Merchants Association meets June 8 at the La Jolla/Riford Library.

(Elisabeth Frausto)

Latrell Crenshaw, a small-business support specialist with the city’s Economic Development Department, said the city is encouraging businesses in the coastal zone to apply for the Spaces as Places permit even as they await Coastal Commission guidance.

“Depending on what the Coastal Commission says, we want to make sure that businesses are still in that process so that if something comes up sooner rather than later, they don’t let their TOBO permits expire,” Crenshaw said.

On June 10, LaCava acknowledged confusion as city employees try to ensure businesses across the city are compliant in applying for Spaces as Places. But he stuck with his comments from earlier this week that the city is suggesting coastal businesses with outdoor operations apply for a right-of-way permit rather than a Spaces as Places permit.

“We want you to continue to operate in the coastal zone until we get this sorted out, because starting July 13 your encroachment into the street will be deemed to be illegal,” LaCava said.

Filing for the right-of-way permit will “put those businesses in a comfortable holding zone until we get this resolution through the Coastal Commission,” he added.

LaCava also said his office is “advocating on [restaurants’] behalf to try to minimize what that right-of-way permit costs them to apply and what documentation they need as part of the application.”

“I don’t want them to spend a lot of time and money for something that may disappear,” he said, noting that regulations may shift after Coastal Commission approval of Spaces as Places.

Spaces as Places carries more stringent requirements for outdoor structures than the TOBOs, including a fee and several design and safety regulations. The May 20 letter from Larson states that some current temporary operations may be ineligible for a Spaces as Places permit and could require “substantial investment and assistance from a licensed engineer to comply” with the new requirements.

La Jolla Shores

At the La Jolla Shores Association meeting June 8, board member Phil Wise, who launched The Shores’ outdoor dining program in July 2020 to close one block of Avenida de la Playa for restaurant use, said the costs of a new permit will be particularly substantial in The Shores, as the program involves a road closure.

A new permit would not allow the outdoor dining to operate as it is, Wise said, because it would require the street to be open to traffic, and the extent to which tables and chairs can be placed on the street would be reduced.

“We also have to get an Encroachment Maintenance Removal Agreement, and to get that you need an engineering report, which costs $30,000 or more, plus architectural fees,” Wise said. “In all, it’s almost six figures to do this. What’s more distressing is, if we do this, we have no assurance that it will even move forward because it is subject to Coastal Commission approval.”

LJSA voted unanimously to send a letter to the Coastal Commission recommending that The Shores outdoor dining program become permanent.

Shores resident Tricia Riha opposed that idea. “I’m glad everyone came back and prospered during this terrible time with the pandemic, but … there is plenty of seating even if [restaurants] don’t have the sidewalk,” she said.

Town Council

At the La Jolla Town Council’s meeting June 9, trustees voted to send a letter to the City Council and city attorney asking for a one-year TOBO extension for all affected local businesses in the coastal zone.

In introducing the motion, trustee Chuck Merriman, who also is a board member for the La Jolla Shores Business Association, said “we’re all looking for alternative ways to continue our business operations.”

He added that the expiration of the TOBOs doesn’t make sense considering the pandemic is continuing. He noted that coronavirus case numbers are higher now than they were a year ago.

“It seems odd to me that we now want to eliminate something that helped us during COVID and COVID continues to spike in the region,” Merriman said.

The motion passed 12-4, with those opposed objecting without comment.

But LaCava said June 10 that “the rules and the laws don’t apparently allow for yet another temporary extension.”

The City Council approved the TOBO emergency ordinance in summer 2020 and granted an extension in May 2021 that allowed the temporary spaces through July 13 this year. ◆