New Jersey Gov. Phil Murphy Vetoed One Outdoor Dining Bill Because It Took Too Much Power Away From Zoning Officials. Will He Do That a Second Time?

Garden State lawmakers have unanimously passed two bills now allowing restaurants to keep their outdoor operations running so long as their indoor dining rooms are restricted.

Politics is preventing New Jersey's restaurants, bars, and breweries from obtaining some much-needed protections and certainty about their outdoor dining operations.

Last week, Gov. Phil Murphy (D) vetoed a bill passed by the state legislature that would have guaranteed these businesses' right to use parking lots, sidewalks, streets, and other outdoor spaces for serving food and drink while the governor's COVID-19 emergency order remained in effect. So long as their temporary spaces or outdoor structures had been lawfully used during the pandemic, local officials had to issue them permits within 15 days.

The problem for Murphy was that the legislation, A4525, took away too much power from local zoning officials to reject permits or charge fees for the permits they would issue.

"Municipalities would have almost no ability to reject an application based on public health or safety concerns, such as a proposed expanded area's proximity to a school or church, or a licensee's previous violations," said Murphy in his statement.

The veto caught many by surprise given that A4525 had been passed unanimously by the legislature back in November after months of debate during which the governor had ample time to voice objections and request changes.

This week, lawmakers fast-tracked a slightly amended version of that bill which gives municipalities more flexibility to deny permits for health or safety reasons, allows them to charge fees for these permits, and gives them more room to restrict businesses' nighttime hours of operation.

That slightly amended bill is currently sitting on Murphy's desk, who has 45 days to sign it or veto it. If he does neither it goes into effect by default.

"It would be great for Gov. Murphy to sign this as quickly as possible because there are thousands of small businesses and small business employees out there in New Jersey that are hurting and need as much help as possible," says Christopher Emigholz of the New Jersey Business and Industry Association. "Here's help the state can provide that doesn't cost anything, that doesn't jeopardize any health or safety standards that we have."

New Jersey currently limits restaurants indoor operations to 25 percent capacity. No more than eight people are allowed at a single table (unless they are from the same household), and tables must be at least six feet apart.

Restaurant reservations in the state are down some 40 percent compared to this time last year, according to OpenTable. The number of small businesses open in the state has declined 34 percent from January 2020.

Outdoor dining has been one of the few deregulatory silver-linings of the pandemic. Local governments across the country have proactively waived all manner of permits, fees, and regulations that previously tripped up businesses trying to set up some tables and chairs on a sidewalk or, God forbid, a parking space.

These outdoor set-ups can be a lifeline for businesses trying to survive while their indoor dining rooms are closed or required to operate at reduced capacity and many would-be diners are playing it safe by eating at home.

The risk for business owners is that they'll end up spending thousands of dollars converting their parking lot into a dining patio only to have the government decide to suddenly shift course and shut down their on-site operations all over again.

New Jersey's outdoor dining bill is aimed at giving Garden State restauranters some much-needed certainty that this lifeline won't be yanked away from them so long as their indoor operations remain restricted.

Emigholz tells Reason that it's possible that Murphy will sign the amended bill lawmakers passed this week, but that another veto was still possible. Typical Inter-branch rivalries between the governor and the legislature, he says, played a role in stymying the legislation.

Yet there's still hope the interests of struggling small business owners might outweigh the governor's commitment to the preservation of zoning officials' power and politics as usual.