Making Dining Sheds Permanent - What Could Go Wrong?

David Goldsmith

All Powerful Moderator
Staff member

Making Streetside Dining Permanent​

The coronavirus pandemic moved New York City’s restaurants onto the sidewalks and into the streets. Now the city is moving to make a variation of its Open Restaurants program permanent. In July, the city proposed a change to zoning rules that would permit restaurant structures at the curb to stay up indefinitely. Officially, they are only temporary now. The city expects to begin taking applications for the permanent structures late next year.​

The restaurant industry, one of the city’s economic tentpoles, is doing better now than it was at the beginning of the year, when the New York City Hospitality Alliance said that 92 percent of restaurants could not pay the rent. Still, Andrew Rigie, the executive director of the alliance, said that only about two-thirds of restaurant employees have returned to work since pandemic restrictions on dining were eased. Restaurants added only 3,000 restaurant jobs in August, the fewest in any month this year, he said.
Complicating the picture for restaurants were two incidents last week. One involved an Upper East Side restaurant that has a shedlike structure at the curb. A 28-year-old man was shot while having dinner outside. The police said he got into a struggle with one of two men wearing masks who jumped out of a sport-utility vehicle and approached customers in an attempted robbery.
The other incident underscored the continuing tensions over vaccinations, as well as restaurant workers’ new frontline roles in dealing with regulations. The police arrested three women from Texas who they said had punched a hostess at Carmine’s, an Italian restaurant on the Upper West Side. The police said last week that the women had been vaccinated.

The lawyers said the brawl began after two men who joined their party could not provide similar proof.
Justin Moore, a lawyer for one of the women, described the altercation as “mutual combat” and said that the hostess had used a racial slur. But Carolyn Moore, a lawyer for the restaurant, said by email that “nothing about this incident suggests race was an issue.”

A “wild, wild West atmosphere”​

From an urban planning perspective, Open Restaurants was not about keeping customers plied with entrees, desserts and drinks — and thus keeping restaurants in
business. It was, and is, about how public spaces in the city can be used.
Daniel L. Doctoroff — a former deputy mayor who is now the chief executive of the urban-innovation company Sidewalk Labsargued in an Op-Ed in The Times in July that planners “need to think bigger than dining sheds,” noting that he was “not anti-shed” but “pro-public space.”
Opponents say that making outdoor dining permanent would compound neighborhood headaches.
One neighborhood where opponents have been particularly vocal is the Lower East Side — “an incubator of what not to do,” said Diem Boyd, the founder of the community group. She complained that outdoor restaurants have contributed to an “open-air nightclub, wild, wild West atmosphere.”
Opponents like Ms. Boyd and Cue-Up, an alliance of community groups whose full name is the Coalition United for Equitable Urban Policy, maintain that the Open Restaurants plan would amount to a “land grab” for restaurants. Micki McGee, a member of Cue-Up, said that permanent outdoor restaurant facilities would also create “a streetscape populated by restaurants that are no longer serving the neighborhoods but are serving as tourist attractions.”

Worse, Ms. Boyd said she was concerned that the city’s plan would drive out retailers. “The mom-and-pops that you love, the tailor shop or the vintage shop, they’re going to go, because the landlord is going to say ‘I can put a cafe in there, I can have the roadbed, increase the rent,’” Ms. Boyd said. “It’s going to kill small businesses.”
 

David Goldsmith

All Powerful Moderator
Staff member

Some Outdoor Dining Sheds Have Become a Rat's Paradise After Hours in New York City

The Inside Edition rat patrol is back! Some outdoor dining sheds have become a haven for furry vermin after hours at New York eateries. “This is a rat’s dream come true,” exterminator Paul Barletta tells Inside Edition.​


Outdoor dining has been a godsend to restaurants struggling during the coronavirus. But as it turns out, it’s also a great place for rats to live and multiply.
After hours at some New York City dining sheds, rats are having their own dinner parties. Inside Edition's rat patrol found the disease-carrying vermin in different parts of the city.

At Miriam, a popular eatery in Brooklyn, we spotted them scurrying all over the outdoor dining area in search of leftovers. Miriam did not respond to Inside Edition's requests for comment.
Stewart Waldman has lived in New York City for over 30 years and says he's never seen the problem as bad since the outdoor dining sheds went up.

“Do you think that these restaurant sheds have added to the number of rats in your neighborhood?” Inside Edition's Lisa Guerrero asked Waldman.

“Without a doubt,” he said.
Our flashlights also caught rats running around the outdoor dining area at a pizza joint in midtown Manhattan. The manager at B Side Pizza said the rats didn't come out when the restaurant was open, but he acknowledged that they show up after the restaurant closed for the night.

“We do a thorough cleaning everyday before the shift and we have an exterminator that comes out every week,” the manager said.
But, of the restaurants we checked, nowhere was the problem worse than at Arriba, Arriba. Their tasty tacos are a New York favorite. And after hours — the rats agree.
But the restaurant says it is aware of the issue.
“We have recently taken the whole thing down and cleaned everything out and poured cement,” manager Brent Reil told Inside Edition. He says they're doing everything they can to get rid of the rats, which he calls a city-wide problem.
“All over the city it's happening,” Reil said.
Exterminator Paul Barletta of SWAT Pest Control in New Jersey says these types of outdoor dining areas are very conducive to attracting vermin, especially if trash is left in and around them overnight.


“This is a rat’s dream come true,” Barletta said.
And although it takes constant work, he says restaurant owners can keep rodents away with a vigilant pest control management program. The restaurants we spoke with say they use pest control companies to try to get rid of the rats.

 

David Goldsmith

All Powerful Moderator
Staff member
Talk about getting dragged.


Bar-Six-outdoor-shed-damaged-2.jpeg

Talk about takeout! Garbage truck hauls off outdoor dining shed in Greenwich Village — with person inside!​

Sacré bleu!
A garbage truck on Monday evening mistakenly scooped up an outdoor seating shed in front of a French restaurant in Greenwich Village — with a diner inside of it!
A Twitter user, Scootercaster (@ScooterCasterNY), posted a video from the scene, interviewing the restaurant’s manager, who confirmed that a garbage truck making a pickup had “dragged” the shed for about 10 feet and that a patron had been inside. The diner was unhurt, she said.

Adding to the chaos, coming up from their protest at Foley Square, a group of teachers and others who oppose being forced to get the coronavirus vaccine marched past the French eatery’s totaled shed while chanting slogans.
“Antimandates March just went by a crime scene,” Scootercater tweeted. “A sanitation truck attempting to pick up garbage picked up and dragged an outdoor dining structure while someone was inside. Incident occurred at West 13th and 6th Avenue. The diner was uninjured but shaken.”
“It was shocking, definitely felt like an earthquake almost,” the bistro manager said of the frightening incident. “I was worried for the safety of our customers and everyone involved.”

She said she was disappointed to hear that Bar Six would have to handle the cleanup of the wreckage and that the city would not help out.
“The police came out to inspect it [and file a report]…but then it’s our responsibility apparently to clean up the mess,” she said. “I think the city should definitely get involved and be responsible for helping us to clean up the street.”
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David Goldsmith

All Powerful Moderator
Staff member
On a Thursday evening at 6:30PM 3 days from May, on and around Thompson Street by Bleecker/West 3rd. A fraction of the totally empty dining sheds littering the area. Also many with one table being used. In total I saw about 20-25 seats being used out of hundreds. IMG_20220428_193906_536_copy_576x576.jpg IMG_20220428_193906_517_copy_576x576.jpg PXL_20220428_220832741_copy_1632x1228.jpg PXL_20220428_220859015_copy_1632x1228.jpg PXL_20220428_221036585_copy_1632x1228.jpg IMG_20220428_193906_675_copy_576x576.jpg IMG_20220428_193906_662_copy_576x576.jpg IMG_20220428_193906_651_copy_576x576.jpg IMG_20220428_193906_628_copy_576x576.jpg IMG_20220428_193906_619_copy_576x576.jpg
 

David Goldsmith

All Powerful Moderator
Staff member
I think this is the first "Coop quality of life vs dining sheds" lawsuit.

Billionaires’ Row landlord fed up with outdoor dining​

Drunk diners, ugly signs have turned West 57th Street into “three-ring circus”: lawsuit​

Some landlords have embraced outdoor dining to save their struggling tenants, but one Billionaires’ Row building owner is decidedly not a fan.​

The restaurants renting space at the Osborne have turned the landmarked apartment building into a “three-ring circus,” the owner declares in a lawsuit.

The Open Restaurants program, which oversees New York City’s outdoor dining situation, provided a pandemic lifeline to as many as 12,500 restaurants, and the landlords — including many co-ops — who rely on their rent. Embraced by many New Yorkers but despised by others, the program was made permanent in February.
That left lawsuits as the only option for opponents, among them the Osborne Tenants Corporation, which owns the apartment building at 205 West 57th Street, just south of Central Park. Streeteasy describes the 19th century building as “a kind of Dakota across the street from Carnegie Hall.”

Complicating matters, the residents lease their building’s commercial space not to the restaurants directly but to 57th and 7th Associates, a commercial tenant since 1962, which subleases to seven retailers. The owners have raised a number of complaints, but it’s the outdoor dining that irks them the most.
Last month they went so far as to demand 57th and 7th dismantle the outdoor seating and “unauthorized signage” or risk termination of the lease. That set off a Russian nesting doll of litigation.
The middleman served similar notices to its subtenants, asking them to remove the street seating and signage lest their leases be ripped up.
At the same time, 57th and 7th Associates sued Osborne Tenants, calling its demands “ambiguous.” Then two restaurants and a pizza place — Carnegie Diner, P.J. Carney’s, and Pizza and Shakes — served up lawsuits to both landlords.

In court, Judge Andrew Borrok extended some sympathy to 57th and 7th for “being the ham between two slices of bread” and trying to placate Osborne Tenants and the subtenants.
Joseph Goldsmith, a partner at Kucker Marino Winiarsky & Bittens, which represents Carnegie Diner and Pizza and Shakes, called the situation “an internal dispute” between the owner and its tenant “over the amount of rent that is paid, while the restaurants are trapped in the middle.”
The triangular litigation comes at a time when New York’s restaurants are still struggling. Osborne Tenants had been “extraordinarily sensitive” to their plight, its attorney, Steven Sladkus, testified this week when his legal team and lawyers for 57th and 7th met in court.

However, he said the Dos Equis umbrellas, neon signs and inebriated patrons sleeping on the sidewalk detracted from the beauty of the building, where Leonard Bernstein and Bobby Short once lived.

While restaurateurs await regulations from the Department of Transportation for the ubiquitous sidewalk structures, they are bound by few rules.
Since September, the Osborne’s address has been the subject of at least 30 complaints to 311 relating to outdoor dining or sidewalk issues.

“If the restaurants are unable to have signs informing customers that the businesses are open and what is being sold, or unable to have outdoor seating in accordance with Open Restaurants program, it is not known how these businesses can survive,” said Goldsmith, their lawyer.
Carnegie Diner removed its outdoor seating on West 57th Street but it and P.J. Carney’s maintained their outdoor structures on 7th Avenue.
Manhattan Community Board 5, which covers Midtown including the Osborne, supports the program but recommended stringent guidelines if the originally temporary program is to be permanent.
“CB5 would like outdoor dining structures to be integrated into the streetscape aesthetically and organically, instead of isolating diners from the space around them as has been observed in the emergency period,” the board recommended.

In addition to requesting that the restaurants remove their sidewalk seating, Osborne Tenants also asked several retailers to remove signs, even though some reportedly date from the 1960s. The signs “impair the reputation of the building,” according to Osborne Tenants’ notice to P.J. Carney’s.
One of the signs, which included a poster advertising happy hour at Carnegie Diner, was removed. The shoe repair store removed its “expert shoe repair” neon sign, but P.J. Carney’s has not removed its neon signs that say “Pub,” “Bass,” and “Est. 1927.”
“Some of this stuff has been up on the building for decades,” said Heath Kushnick, attorney for 57th and 7th, according to testimony. “The P.J. Carney’s has been there for decades, and now suddenly they are saying that has to be taken down.”

The owner’s lawyers called that “of no consequence.”
Attorneys for 57th and 7th Associates and P.J. Carney’s declined to comment on the lawsuits. Osborne Tenants’ lawyers did not immediately respond to requests for comment.
 

David Goldsmith

All Powerful Moderator
Staff member

The Final Days of New York’s ‘Wild West’ Outdoor Dining Scene​

The pandemic prompted New York restaurants to create many different kinds of outdoor dining setups. Some have aged better than others.
The city has removed dozens of dining sheds and is considering more regulations for those that remain.

It was 8:15 p.m. on a steamy Saturday night on the Lower East Side, and every table on Canal Street outside of Clandestino was occupied and buzzing.
The roadway tables next door at Le Dive were full as well, and at Cervo’s, down the street, and at Dimes, up the block. Laughter, chatter and the sound of clinking dishes hung in the air.
But just around the corner on Ludlow Street, tenants in upstairs windows were filming neighborhood scenes and posting them on Twitter, where they described the street as “trashed” and the patrons as having “zero regard for the neighborhood” — and blaming a mayor who, one resident wrote, “prioritizes nightlife over communities.”

More than two years after the necessities of the pandemic ushered in a new era of outdoor dining in New York City, what seemed to be a once-in-a-generation chance to change the streetscape has reached a pivotal moment.

What was once temporary is becoming permanent: restaurant seating both on sidewalks and in the roadways by the curb. In mid-August, Mayor Eric Adams announced that while abandoned dining sheds would be destroyed, outdoor dining was “here to stay.”
But as the summer winds down, the city faces decisions about what having dinner outside will look like going forward — a debate that raises larger questions about how New York should use its precious public space, and whose needs it should serve.

The dense number of restaurants on the Lower East Side have created large seating areas on the street. Some residents say the noise is unbearable and the neighborhood is being “trashed.”

Some New Yorkers are suing the city, claiming that the program has affected their safety and ruined their quality of life, pitting neighborhood residents against the small businesses that help make those neighborhoods special, and make New York a magnet for visitors.

While the Department of Transportation issued temporary guidelines for restaurants in 2020, the Adams administration has not yet dictated specific standards that businesses must follow for their outdoor dining operations going forward. According to the mayor, the planning of the new, permanent program — including the development of regulations that might help ease some of the problems neighbors have — is being slowed by litigation.

The new guidelines could cover design, pest control and public health. While the emergency of the pandemic allowed restaurants to use sidewalks and roadways, expect changes next year: Much like obtaining a sidewalk cafe license, restaurants will have to submit an application and pay a fee to seat guests outside on public property.
In addition, a new task force will address quality of life issues in the program, which the city calls Open Restaurants.

Many of the dining sheds cobbled together by restaurants over the last couple of years are now dilapidated and weather-beaten. Some are covered in graffiti or have exposed extension cords hanging overhead.

And while other dining sheds have been transformed and upgraded to become sturdy, impressive, year-round structures that replicate indoor spaces, with speakers for music and heaters, they often block access to the curb for pedestrians, taxis and emergency vehicles.
Some residents argue that the city should just put an end to this type of outdoor dining.
The plaintiffs in the lawsuit say they are being adversely affected by the Open Restaurants program. The emergency conditions created by the coronavirus have waned, the lawsuit argues, but the dining sheds remain, bringing noise, sanitation problems and an increase in rats.

I understood the necessity of something like that at the height of the pandemic,” said Tanya Bonner, a plaintiff who lives in Washington Heights. “But that’s not where we are right now.”

Ms. Bonner said outdoor dining had contributed to unbearable noise in Washington Heights and nearby Inwood. “I think that the word is out that you can just come up here and just do whatever — a free for all.”
Ms. Bonner, who is a professor in the communications department at St. John’s University, is also the co-founder and chair of the WaHi-Inwood Task Force on Noise. She grew up in Chicago and has lived in New York for 17 years, “So I am not wimpy when it comes to living in a city,” she said.
“But what I do expect, and the way I was raised, even in a big city, is to be respectful of your neighbors — and be respectful of your community. Because a healthy community is a thriving community.”

He said that because so many restaurants have set up dining areas along the curb, he can’t find a parking space close to home — or close to the grocery store. “Give us our street back,” he pleaded, bemoaning the problems the program has created for “seniors that can’t walk.”

In addition, Mr. Camacho is concerned that when it comes to outdoor dining, “There is no enforcement mechanism. There’s no quality of life mechanism. There’s no one supervising and making sure that things are going right and correct.”

Meera Joshi, the city’s deputy mayor of operations, recently announced the creation of a task force to address quality of life issues associated with Open Restaurants. The effort will be a collaboration between the Department of Transportation, the Department of Sanitation and the Parks Department, with assistance from the Police Department.

As of Sept. 2, the task force had already removed 55 sheds that were either abandoned or in violation of guidelines.
During the darkest months of the pandemic, outdoor dining was a lifeline that kept many restaurants from shutting down. But now it means increased capacity — and a boost in business.
Jeff Kadish, the founding partner of Bottom Line Hospitality and an operating partner of Bodega 88, a Latin-themed sports bar and restaurant on the Upper West Side, said that when the pandemic hit, being able to expand saved the restaurant.

Outdoor dining was a lifeline that kept many restaurants from shutting down. Now it means increased capacity — and a boost in business.

The bar added more sidewalk seating and created a dining area on Columbus Avenue. “It’s Covid, Wild West, you’re allowed to use the roadway, go for it,” he said.

Mr. Kadish said that Bodega 88’s outdoor seating had benefits for both diners and staff, and he pointed out that the restaurant wound up employing more people because of increased capacity for guests.

But upstairs from Bodega 88, Michael Kenna and all of his neighbors in his co-op building spent upward of $20,000 on noise-reducing windows.
Mr. Kenna, who is one of the plaintiffs in the lawsuit, said the bar had actually tripled its capacity and was known for drawing a crowd on the sidewalk and in the street on Columbus Avenue. When it comes to road noise or conversations — “you get used to that stuff,” he said. But the bar’s outdoor speakers? “Hearing the thumpa, thumpa, thumpa of music until midnight every night — and my bedroom is right there — is maddening,” he said.

Andrew Rigie, the executive director of the New York City Hospitality Alliance, said that even people who support the Open Restaurants program are aware that there are issues that need to be addressed.
Mr. Rigie is working with the task force assembled by City Hall, and noted that there are some legal and zoning changes that need to take place before the permanent version of Open Restaurants goes into effect.
The result is that eating outside in New York in 2023 probably won’t look exactly like it does now, Mr. Rigie said. He said the hospitality alliance would like to see the city approve multiple versions of outdoor dining setups that all have more standardized looks, with specific requirements for building materials. “We’re talking about outdoor dining, not recreating indoor dining outside.”
In addition, New York may see fewer restaurants opting for curbside dining in the future, once there is a formal application process — along with fees — in place.

In the meantime, people will continue to relish the opportunity to sit outside for dinner and entertainment, where New York is the show.

The city has assembled a task force to address quality of life issues associated with Open Restaurants. As a result, eating outside in 2023 probably won’t look exactly like it does now, according to one hospitality executive.

In Bushwick at the intersection of Wyckoff Avenue and Troutman Street on a recent Saturday night, throngs of people were gathered, some waiting for gorditas from a brightly lit taco truck, some sitting at tables in the street, some clumped in a line waiting to get into the venue Lot 45.
It was Davin Hazard’s first time in Bushwick and she was sitting at the nearby restaurant Sea Wolf with a friend, and Arthur, a French bulldog they were dog-sitting.

“The opportunity to get fresh air, to people-watch on the sidewalk, is an incredible thing,” Ms. Hazard, 29, said as she took in the animated, bustling scene. “And I think it feels like a very true New York experience.”
She was sympathetic to Bushwick residents like Mr. Camacho she said, but she had actively sought out a restaurant where she could bring a dog and dine outside. “This can be a compromise, right?”
Back on the Lower East Side, Bonnie Turtur, 37, was sitting by herself at a table outside of Dimes. Her husband had just left the restaurant with their child: “Our baby was throwing a tantrum,” she said.

When informed that people whose apartments overlook the restaurant were suing the city over noise, garbage and rats, Ms. Turtur paused for a moment. “I understand. If I lived upstairs, I’d probably be … I might be complaining.” Did the block where Ms. Turtur currently resides in SoHo have any dining sheds?
“No,” she said, “which is nice.”
 

David Goldsmith

All Powerful Moderator
Staff member


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A dining shed on First Avenue in the East Village. (Photo by The Village Sun)


Hochul agrees dining sheds no longer needed for COVID, leaving Adams ‘on his own to defend failed program’​


Governor Hochul has shed the sheds.
On Friday, the New York State Attorney General’s Office requested, and the plaintiffs agreed, to remove the state as defendants in their lawsuit against the temporary Open Restaurants program.

Basically, the governor agreed to stop issuing a monthly executive order declaring “A Disaster Emergency in the State of New York.” Her last such executive order expired Sept. 12.
“This is a major victory,” said Michael H. Sussman, the plaintiffs’ attorney. “The bloom is off the rose. Rather than extending a baseless emergency order and thereby justifying programs adopted during the pandemic out of a need to respond to a health emergency, Governor Hochul has properly refused to extend such an emergency order any further.”

In the agreement between Sussman and the state Attorney General’s Office, the state stipulated that COVID-related emergency executive powers had not been renewed by the governor on Sept. 14, signaling the end of the need for any pandemic-related emergency orders.

Per a press release from CUEUP (Coalition United for Equitable Urban Policy), the state’s stipulation has made Mayor Adams’s continued use of such orders “indefensible,” and also leaves the mayor and his administration “on their own to defend the quality-of-life disaster that the temporary Open Restaurants program has delivered.”
“This means that emergency measures authorized and justified by that repeatedly-extended order must now be dismantled,” attorney Sussman said, “including, prominently, the city’s temporary Open Restaurants program, which has brought profound dislocation and inconvenience to many city residents.”
The lawsuit — filed on July 29 by three dozen residents from Brooklyn, Queens, Manhattan and the Bronx — challenged Hochul’s and Adams’s renewal of COVID-related emergency executive orders. Adams has relied on emergency powers to continue the city’s temporary Open Restaurants, even as other COVID-related emergency programs have been discontinued.
The plaintiffs argue that the mayor’s renewal of emergency orders every five days constitutes “blatant government overreach and provides a giveaway to the hospitality industry at the expense of public health and safety in neighborhoods across the city.”
The plaintiffs charge that the city must first do a proper environmental review under the State Environmental Quality Review Act for the sweeping, citywide program. There have been two lawsuits filed so far, with some overlapping plaintiffs and Sussman as attorney on both suits.
Lorcan and Genie Otway chatting with customers who are friends at the dining shed outside their William Barnacle Tavern on St. Mark’s Place. The Otways say the dining sheds are a critical revenue source for operators. (The Village Sun file photo)
In March, State Supreme Court Justice Frank Nervo ruled in the plaintiffs’ favor, stating in his written decision, “The programs have, at a minimum, impacted traffic and noise levels, and may have significantly impacted sanitation. Petitioners cite the increase in noise complaints in locations where the program has been implemented as further evidence of the environmental impacts. Consequently, these impacts may be significant, and therefore the environmental impact studies and public comment are required under SEQRA.”
However, as the city currently appeals that decision, the more than 12,000 dining sheds — to the chagrin of many local residents — still sit on the streets, with the highest numbers in Downtown Manhattan’s Community Boards 1, 2 and 3.
But shed opponents are no longer just waiting for an environmental review and for the court appeal process to play out at this point. In July, Sussman filed a second lawsuit, seeking to end the ongoing renewals of the emergency executive orders that authorize the city’s temporary Open Restaurants program — and to end the scheme’s operation immediately.

“The mayor needs to suspend that program now and admit that it is without legal sanction,” Sussman declared. “The city needs then to employ SEQRA appropriately, and solicit broad input from all stakeholders in designing a permanent outdoor restaurant program which respects residents and neighborhoods.”
However, Charles Lutvak, the mayor’s deputy press secretary, told The Village Sun that, as far as the city is concerned, Hochul’s having declined to renew the executive order doesn’t change anything.
“The expiration of the governor’s emergency order will not affect the Open Restaurants program or any other emergency executive order issued by the city,” he said.
Yet Cheri Leon, a Greenwich Village resident and member of CUEUP, told The Village Sun that the feeling is the governor’s monthly “disaster emergency” executive order helped Adams justify continuing Open Restaurants.

“In our opinion, it was giving cover to the city — but it’s gone now,” she said. “They just don’t have that added weight of the governor behind them anymore.”
Leon said that, if the city wants to cede public street space for new purposes — such as dining sheds, parklets, bike racks or anything else — then there should be a real, public process and a full-fledged discussion.

“Just giving it to the restaurant industry doesn’t seem like a very fair or sustainable use of curbside space,” she said.
Leon said that she, personally, would support a discussion on modifying the city’s sidewalk cafe program as an alternative to continuing the roadway dining sheds.
Lola Taverna, a Greek restaurant at Prince and MacDougal Streets, had set up a roadway dining shed in a turning lane, above, which the city finally forced it to dismantle. (Photo by Cheri Leon)
As an example of what she called the “lawlessness” of the Open Restaurants program, Leon noted that the city’s Department of Transportation finally recently did enforcement against Lola Taverna for its dining shed that was plopped illegally right in a turning lane at Prince and Houston Streets. However, Leon said, after the shed was dismantled, the eatery’s owner simply responded by brazenly adding more tables and chairs on the sidewalk around the place, narrowing the pavement passageway for pedestrians below the required 8-foot width.
 

David Goldsmith

All Powerful Moderator
Staff member
City Council Speaker Adrienne Adams takes a stand against roadway dining in NYC. The tide seems to be turning on an issue which was supposed to be a temporary fix since its inception. A number of Community Boards have voted to curtail the program and many residents have been bitterly complaining for well over a year.

Council Speaker Makes Her Choice: Car Storage over Diners and Restauranteurs​

If Speaker Adams stands by her Wednesday comments, outdoor dining like this patio on Smith Street could end up on the sidewalk ... or be scrubbed altogether.
Council Speaker Adrienne Adams appeared to throw the entire open restaurant program under the bus on Wednesday morning, suggesting that the revolutionary de Blasio-era repurposing of roadway space from storage of privately owned cars to outdoor dining was a mistake, despite how few parking spaces it actually took and how many jobs the city estimated it saved.
“Outdoor dining, in my perspective, should be sidewalk, ”the Speaker said at a Citizens Union breakfast. “The street extensions were designed to be temporary.”
The comments come as the Council is slowly creating legislation that would allow restaurants to use the so-called parking lane for outdoor dining, albeit at a still-to-be-determined a fee. The City Planning Commission approved the permanent outdoor dining program earlier this year, but it remains in the Council’s hands. City Hall and the Council have said they are pausing while a lawsuit against making the Covid-era program permanent makes its way through the legal system.
It’s not clear if Speaker Adams was commenting simply for herself or believes she has the support of her rank-and-file members. After Adams said that restaurants should only be allowed to use sidewalk space, Council Member Erik Bottcher strongly condemned the suggestion.
“The use of road space for outdoor dining has been an overall positive development,” Bottcher told Streetsblog. “Banning all restaurants from using road space for dining would be a mistake.”


Regardless of how the lawsuit plays out, Speaker Adams’s apparent belief that restaurant dining areas should be limited to the sidewalk is almost entirely impossible in New York City, where 80.6 percent of the sidewalks are less than 12 feet wide — the requirement for outdoor dining. More than 92 percent of the Big Apple’s sidewalk space is less than 15 feet wide, which would be a squeeze for pedestrians.
The website Sidewalk Widths rated anything less than 15 feet as between “impossible” and “somewhat difficult” to site a restaurant. Some neighborhoods simply don’t have enough pedestrian space to even consider outdoor dining on the sidewalk, the website shows. Only 4.9 percent of the sidewalk space on the Upper West Side, for example, is wider than 15 feet.
Open dining — which represented one of the most revolutionary shifts in the use of public roadway space since car owners seized the curbside spaces for storage more than 70 years ago — is hugely popular, especially with Manhattanites, according to surveys by DOT and Transportation Alternatives. In addition, despite contention from drivers that it is now quite difficult to park, very few “parking spaces” were repurposed for outdoor dining.
Indeed, the DOT testified in the lawsuit that “75 to 100 percent of the parking spaces [in restaurant-] eligible corridors are metered spaces with strict time-limits and graduated fee rates to encourage parking turnover. … It is unlikely that residents depend on those parking spaces for their long-term parking needs.”
Other opponents claim that outdoor dining has brought rats to areas that previously didn’t have them, but experts in rat behavior and extermination debunked that earlier this year.
But if Speaker Adams opposes outdoor dining plazas reclaiming public space from cars, she has some support from the mayor, who took a sledgehammer to help tear down one of the few restaurant sheds that had fallen into disuse. The next day, the dining area was once again a parking space, Streetsblog reported — with even one driver saying she preferred outdoor dining to a parking space. That said, the Mayor Adams has often dined al fresco, in the roadway, and the sledgehammer photo op was specifically to highlight the administration’s opposition to defunct or unused outdoor sheds.


Reaction to the Speaker’s comments was swift.
“Streeteries were only initially intended to be temporary and that’s why the city is now going through the legislative process to develop a more standardized and sustainable permanent outdoor dining program, which includes upgraded roadway seating, because thousands of restaurants rely on it, countless New Yorkers and visitors love dining alfresco, not to mention support from many City Council members we see dining outdoors supporting their local restaurants,” said Andrew Rigie, executive director of the NYC Hospitality Alliance, which represents thousands of restaurants.
A spokesman for TA, which also supports outdoor dining, focused on how little inconvenience it was for how much gain it provided.
“At its peak, the Open Restaurants program transformed 0.29 percent of New York City’s parking spaces and saved 100,000 jobs,” said Cory Epstein. “We have proof that New York City’s recovery can be powered by putting streets to better use than just moving and storing private vehicles. We urge the City Council to follow the data, keep New Yorkers working, and strengthen the program for the future.”
Alfresco New York City, which is a spinoff of the Regional Plan Association, Tri-State Transportation Campaign and the Design Trust for Public Space, also criticized Adams’s comment.
“Open restaurants demonstrated that New York can use street space usually reserved for private vehicles … to better serve businesses and communities,” the group said in a tweet. “The City Council … must move forward — not backward — and continue to use public street space for the greatest public benefit.”
And Jackson Chabot of the policy shop at Open Plans (a sister organization to Streetsblog) called Speaker Adams’s comment “incorrect and regressive.”
“Outdoor dining is popular, as evidenced by people using it,” he said. “It has also been a lifesaver for restaurants during the pandemic. We need to continue to reimagine the curb … not go back to the pre-pandemic status quo.”
After initial publication of this story, City Hall spokesman Charles Lutvak said the mayor stands by his prior support of outdoor dining — in the roadway.
“Mayor Adams supports a full, equitable, permanent Open Restaurants program that all New Yorkers can be proud of,” Lutvak said. “That means resuscitating local restaurants all across the city post-pandemic with seating on the sidewalk and in the roadway, protecting the 100,000 jobs this program saved during the pandemic, and reimagining street space to better serve all New Yorkers, while putting critical health and sanitation guardrails in place under the Department of Transportation.”
 

David Goldsmith

All Powerful Moderator
Staff member

NEW YORK RULING PAVES WAY FOR SOME OUTDOOR DINING SHEDS TO BECOME PERMANENT

Community groups opposed to NYC's outdoor dining went to court to force the city to conduct a review, but an appellate court refused. Darla Miles has the story.
There was a victory this week for restaurants and the city in the ongoing controversy over sidewalk dining.

Some community groups opposed to outdoor dining went to court to force the city to conduct an environment impact review, but an appellate court refused.

However, opponents say their fight is not over.

One block in the West Village has examples of the best of outdoor dining - with custom tenting and individual booths - and the worst of it - with toilet paper and gallons of used fryer grease just sitting on the street.

They are two very clear examples of both sides of the outdoor dining debate.

"A lot of people in the city are now saying this is a green light to make permanent open restaurants, it is nothing of the kind, said plaintiff Leslie Clark.

Clark is one of more than two dozen New Yorkers who sued the city earlier this year and won - compelling it to conduct an environment impact review before the council passes proposed legislation to make outdoor or roadway dining permanent.

But Tuesday, a New York Appeals Court ruled: "Given the remaining legislative and administrative steps that must be taken by the City before the permanent outdoor dining program is finalized....dismissed as not ripe for judicial review."

"The appellate division said we agree with you," Clark said. "They brought it at the wrong time and they made no comment what on the environment impact aspect of it. So that means legally that the court left the door for us to come back."

Mayor Eric Adams celebrated the decision in a tweet saying, "This ruling is great news for New York City's comeback"

It's also good news for the NYC Hospitality Alliance. Executive Director Andrew Rigie issued a statement saying, "We are pleased that the Appellate Division unanimously dismissed the lawsuit."

As for what permanent outdoor dining might look like, it could be closed during winter months, prohibited in historic districts, and the DOT has said sheds would be replaced by road barriers and umbrellas.

"They could be subject to more approvals so it's consistent throughout the city," said Jerry Chang, owner of Red Feather Restaurant.

Restaurants that have benefited from the program say it shouldn't be condemned because of a few bad apples.

"Restaurant and bars that have consistent complaints, you know need to address that issue," Chang said.

Clark is frustrated with the noise, rodents and trash that has come with outdoor dining.

"The court told us to wait, so we're waiting," Clark said. "And when they try to make this permanent, we'll be back."
 

David Goldsmith

All Powerful Moderator
Staff member
I think this new report touting the economic benefits of the OpenStreetsNY program is a bit of a smoke screen.


1) This study only applies to bars/restaurants and ignores other businesses. For the last several years I have visited retail business on and around these ClosedStreets (from Astoria to Jackson Heights, from the West Village to the Upper West Side, etc) and almost universally the owners told me they had been negatively impacted,

2) They seem to leave out/downplay that even bars/restaurants in areas surrounding these ClosedStreets saw revenues fall,

3) On some of the largest ClosedStreets like 34th Avenue in Jackson Heights there are no bars/restaurants. What is the positive economic impact there? Yet these proponents will use this "study" to push more of these as well.
 

David Goldsmith

All Powerful Moderator
Staff member

Outdoor Dining Is Doomed​

“Streeteries” are sitting empty this winter.
By Yasmin Tayag

These days, strolling through downtown New York City, where I live, is like picking your way through the aftermath of a party. In many ways, it is exactly that: The limp string lights, trash-strewn puddles, and splintering plywood are all relics of the raucous celebration known as outdoor dining.

These wooden “streeteries” and the makeshift tables lining sidewalks first popped up during the depths of the coronavirus pandemic in 2020, when restaurants needed to get diners back in their seats. It was novel, creative, spontaneous—and fun during a time when there wasn’t much fun to be had. For a while, outdoor dining really seemed as though it could outlast the pandemic. Just last October, New York Magazine wrote that it would stick around, “probably permanently.”

But now someone has switched on the lights and cut the music. Across the country, something about outdoor dining has changed in recent months. With fears about COVID subsiding, people are losing their appetite for eating among the elements. This winter, many streeteries are empty, save for the few COVID-cautious holdouts willing to put up with the cold. Hannah Cutting-Jones, the director of food studies at the University of Oregon, told me that, in Eugene, where she lives, outdoor dining is “absolutely not happening” right now. In recent weeks, cities such as New York and Philadelphia have started tearing down unused streeteries. Outdoor dining’s sheen of novelty has faded; what once evoked the grands boulevards of Paris has turned out to be a janky table next to a parked car. Even a pandemic, it turns out, couldn’t overcome the reasons Americans never liked eating outdoors in the first place.

For a while, the allure of outdoor dining was clear. COVID safety aside, it kept struggling restaurants afloat, boosted some low-income communities, and cultivated joie de vivre in bleak times. At one point, more than 12,700 New York restaurants had taken to the streets, and the city—along with others, including Boston, Los Angeles, Chicago, and Philadelphia—proposed making dining sheds permanent. But so far, few cities have actually adopted any official rules. At this point, whether they ever will is unclear. Without official sanctions, mounting pressure from outdoor-dining opponents will likely lead to the destruction of existing sheds; already, people keep tweeting disapproving photos at sanitation departments. Part of the issue is that as most Americans’ COVID concerns retreat, the potential downsides have gotten harder to overlook: less parking, more trash, tacky aesthetics, and, oh God, the rats. Many top New York restaurants have voluntarily gotten rid of their sheds this winter.

The economics of outdoor dining may no longer make sense for restaurants, either. Although it was lauded as a boon to struggling restaurants during the height of the pandemic, the practice may make less sense now that indoor dining is back. For one thing, dining sheds tend to take up parking spaces needed to attract customers, Cutting-Jones said. The fact that most restaurants are chains doesn’t help: “If whatever conglomerate owns Longhorn Steakhouse doesn’t want to invest in outdoor dining, it will not become the norm,” Rebecca Spang, a food historian at Indiana University Bloomington, told me. Besides, she added, many restaurants are already short-staffed, even without the extra seats.

In a sense, outdoor dining was doomed to fail. It always ran counter to the physical makeup of most of the country, as anyone who ate outside during the pandemic inevitably noticed. The most obvious constraint is the weather, which is sometimes pleasant but is more often not. “Who wants to eat on the sidewalk in Phoenix in July?” Spang said.

The other is the uncomfortable proximity to vehicles. Dining sheds spilled into the streets like patrons after too many drinks. The problem was that U.S. roads were built for cars, not people. This tends not to be true in places renowned for outdoor dining, such as Europe, the Middle East, and Southeast Asia, which urbanized before cars, Megan Elias, a historian and the director of the gastronomy program at Boston University, told me. At best, this means that outdoor meals in America are typically enjoyed with a side of traffic. At worst, they end in dangerous collisions.

Cars and bad weather were easier to put up with when eating indoors seemed like a more serious health hazard than breathing in fumes and trembling with cold. It had a certain romance—camaraderie born of discomfort. You have to admit, there was a time when cozying up under a heat lamp with a hot drink was downright charming. But now outdoor dining has gone back to what it always was: something that most Americans would like to avoid in all but the most ideal of conditions. This sort of relapse could lead to fewer opportunities to eat outdoors even when the weather does cooperate.

But outdoor dining is also affected by more existential issues that have surmounted nearly three years of COVID life. Eating at restaurants is expensive, and Americans like to get their money’s worth. When safety isn’t a concern, shelling out for a streetside meal may simply not seem worthwhile for most diners. “There’s got to be a point to being outdoors, either because the climate is so beautiful or there’s a view,” Paul Freedman, a Yale history professor specializing in cuisine, told me. For some diners, outdoor seating may feel too casual: Historically, Americans associated eating at restaurants with special occasions, like celebrating a milestone at Delmonico’s, the legendary fine-dining establishment that opened in the 1800s, Cutting-Jones said.
Eating outdoors, in contrast, was linked to more casual experiences, like having a hot dog at Coney Island. “We have high expectations for what dining out should be like,” she said, noting that American diners are especially fussy about comfort. Even the most opulent COVID cabin may be unable to override these associations. “If the restaurant is going to be fancy and charge $200 a person,” said Freedman, most people can’t escape the feeling of having spent that much for “a picnic on the street.”

Outdoor dining isn’t disappearing entirely. In the coming years there’s a good chance that more Americans will have the opportunity to eat outside in the nicer months than they did before the pandemic—even if it’s not the widespread practice many anticipated earlier in the pandemic. Where it continues, it will almost certainly be different: more buttoned-up, less lawless—probably less exciting. Santa Barbara, for example, made dining sheds permanent last year but specified that they must be painted an approved “iron color.” It may also be less popular among restaurant owners: If outdoor-dining regulations are too far-reaching or costly, cautioned Hayrettin Günç, an architect with Global Designing Cities Initiative, that will “create barriers for businesses.”

For now, outdoor dining is yet another COVID-related convention that hasn’t quite stuck—like avoiding handshakes and universal remote work. As the pandemic subsides, the tendency is to default to the ways things used to be. Doing so is easier, certainly, than coming up with policies to accommodate new habits. In the case of outdoor dining, it’s most comfortable, too. If this continues to be the case, then outdoor dining in the U.S. may return to what it was before the pandemic: dining “al fresco” along the streetlamp-lined terraces of the Venetian Las Vegas, and beneath the verdant canopy of the Rainforest Cafe.
 

David Goldsmith

All Powerful Moderator
Staff member

Outdoor Dining Legislation Stuck in Limbo as Tensions Grow Over Shed Conditions​

outdoor-dining-nyc-amNY_DiningSheds_040223-holtermann-1.jpg

Trash bags pile up next to a dining shed that appears to be used as storage. Photo by Gabriele Holtermann
Apr 11, 2023 • 09:00amby Gabriele Holtermann
To some, they are a public nuisance; to others, they have helped inject life back into New York City.
Any way you slice it, the presence of outdoor dining sheds on the Big Apple’s streets continues to draw strong emotions — and the program itself, launched at the height of the Covid-19 pandemic three years ago, is very much in limbo today.
Depending on the location, one can find a host of problems associated with outdoor sheds — trash, vermin, graffiti, noise, general disrepair, and the loss of valuable street parking spots. But other sheds are properly maintained, and bustling on a daily basis with diners enjoying their meals al fresco in scenes often resembling spring or summer dining in European cities like London, Paris, or Rome.


The roadside structures were first permitted by the de Blasio administration in June 2020 as part of the Open Restaurants initiative that was launched shortly after the outbreak of the pandemic. An estimated 100,000 jobs in the city’s restaurant industry were saved as a result, at a time when indoor dining was off limits due to capacity restrictions.
The initiative, which was first introduced on a temporary basis to help struggling restaurants survive the economic fallout of the Covid shutdowns, also loosened the rules dealing with sidewalk seating, allowing most restaurants to operate in front of their establishment without going through an onerous approval process or needing to comply with zoning code.
outdoor dining in greenwich village

In Greenwich Village, a nicely decorated dining shed sits next to one covered with graffiti. Photo by Gabriele Holtermann


Prior to the pandemic, only about 1,000 restaurants across the boroughs had permits to operate a sidewalk cafe, and approximately 70 percent of them were in Manhattan. Today more than 12,800 cafes, bars, and restaurants use sidewalk and roadway space via the Open Restaurants program.
Outdoor dining is a program that most city lawmakers say is here to stay. However, the program remains temporary, and legislation needs to be passed for it to be permanent. And division remains among the public over whether it should remain in place at all.
Stuck in committee


A bill, which has the backing of Mayor Eric Adams, was introduced in the city council in February 2022 to make the program permanent. However, the intricacies of how it would work remain up in the air, with the legislation stuck in committee.
The proposal is a hot button issue, with its critics saying the pandemic is over and that it is time to get rid of the sheds and rein in the use of sidewalk dining.
“Take them down,” said Deborah Keir Dombrowski, a Bayside resident who was on the Bell Boulevard earlier this week. “They are an eyesore, and they create parking and traffic issues of every kind. They served their purpose. Time to move on.”


Meanwhile, restaurant advocates want the program to continue, although they recognize it needs to be tightly regulated with greater enforcement.
With the council wrestling with how to move forward, the program has been kept in place only by the mayor signing executive orders based on the emergency powers stemming from the Covid-19 epidemic.
Naysayers argue that the pandemic is over, and that the mayor is abusing his power by keeping the program in place.
people eating in an outdoor dining shed

The dining shed of Mermaid’s Oyster Bar on MacDougal Street in Greenwich Village. Photo by Gabriele Holtermann
The mayor, according to a spokesperson for Adams, supports outdoor dining and plans to keep the temporary open restaurant program in place until a permanent program has been established. However, the mayor says improvements are needed to the program in its current form.
Last year, the city started removing abandoned sheds, starting with those belonging to restaurants that have permanently closed.
“Outdoor dining has transformed New York City…but we cannot allow abandoned dining sheds to litter our streets,” Adams said. “These deserted dining sheds have become eyesores for neighbors and havens for rats, and we are gong to tear them down.”
But the mayor insisted that outdoor dining is here to stay and that it is time for legislation to be agreed upon.
“It’s time to come together and figure out how New Yorkers can enjoy outdoor dining with a permanent version that works for business and residents,” the mayor said in his State of the City speech in January.
The legislation now stuck in the City Council would permit sidewalk dining to take place year round, but would prohibit roadway cafes from operating from November 1 through March 31 to keep the streets open during the late fall, winter, and early spring months.
All roadway cafes would need to be kept “open air,” rather than enclosed, the legislation further outlines. A governing body would also be created to develop the rules and regulations within the broad framework of the law.
Those rules would govern the dimensions and materials of the sheds as well as the sections of the sidewalk where they could be sited.
Much of the legislation is still being debated, but Andrew Rigie, executive director of the NYC Hospitality Alliance, anticipates that most of the roadway sheds will have to be torn down since they won’t comply with the new rules.
Who’s minding the stores?
The city’s Department of Consumer and Worker Protection, which oversaw the city’s sidewalk seating prior to the pandemic, would be put in charge of outdoor dining under the legislation. However, some lobbyists are advocating for it to fall under the city’s Department of Transportation, given roads are now being used. The DOT currently oversees the Open Restaurants program.
The supervisory body would determine the application process and govern how the program operates to ensure the general welfare of the public.
The legislation does spell out the a cost of a license. The operators of a sidewalk cafe would be charged, based on the current version of the bill, $510 for a two-year license period, while it would be $255 for a roadway shed. However, the restaurants also would be charged for using the public space –called consent fees — much like rent. The amount is yet to be determined.
outdoor dining shed in queens

The Cuban located at 39-17 Bell Boulevard in Bayside is one of the many restaurants in Queens to embrace roadside dining. Photo by Ethan Marshall
Community boards, under the legislation, would be notified when an application is filed and would be able to make a recommendation.
The supervisory body would also oversee enforcement and receive all complaints via 311 and other means.
The current bill, however, as written, remains a work in progress, according to a spokesperson for Council Speaker Adrienne Adams.
“Discussions with the administration and stakeholders are ongoing, and no bill has been finalized yet,” Speaker Adams said in a statement. “The council is continuing to work on a bill that creates a permanent outdoor dining program for the city that strikes the right balance for our restaurants, neighborhoods, and all New Yorkers.”
The uncertainty of the rules has left both the restaurant industry and residents in a state of limbo.
“Restaurants want to upgrade and invest in their outdoor dining,” Rigie said.
He said many roadside sheds were built quickly during the height of the pandemic and have taken a beating over the past three years and need to be upgraded. “But restaurateurs don’t want to spend money only to be told in the near future by the city that they will need to remove everything because it is no longer in compliance.”
Rigie said it is imperative that legislation is passed soon.
“The status quo is causing a lot of frustration for restaurateurs and residents. We are past the stage where we can continue operating like this, and people need certainty.”
Laying the foundation
The City Council, however, has taken one significant step toward putting in place a permanent plan.
The council passed a zoning bill in February 2022 that permits outdoor dining to take place in most commercial areas across New York City. Prior to the bill, outdoor dining was only permitted in a small section of New York City, mostly in Manhattan.
The Open Streets initiative has been a boon for the outer boroughs. Prior to its launch, only 30 percent of the approximately 1,000 restaurants with sidewalk licenses were located outside of Manhattan.
Today, 51 percent of the 12,000 open restaurants are found in the outer boroughs, according to a study of the Open Restaurants program released by New York University in December. Low-income and minority communities have also seen an influx of outdoor dining.
Prior to the pandemic, sidewalk cafes were only allowed in certain zoning districts, most of which were in Manhattan. Furthermore, roadway dining was also not permitted prior to the Open Streets initiative.
rat droppings

A slew of rat droppings are on the floor of a dining shed that appears to be used as storage. Photo by Gabriele Holtermann
However, the zoning bill will only have an impact once permanent legislation dealing with outdoor dining is in place.
The restaurant industry is trying to shape how the legislation is crafted, advocating for the permanent program to be year round, low cost in terms of fees, and having a straightforward approval process.
Rigie said that the roadside dining needs to be year round since it is costly for restaurateurs to set them up only to take them down months later.
“It costs a lot of money to put one up on the roadway, and then there are challenges taking them down for colder months and finding a place to store them,” Rigie said. “This is particularly the case for smaller restaurants, which could put them out of reach for some.”
Rigie is also calling for the city to streamline the approval process for roadside sheds by coming up with pre-approved designs.
“We’d like to see the city pre-approve multiple design options that restaurants can select for the roadway, so they know they will be in compliance — and then they can customize it for their own look and own vibe,” he said. “We would also want an option where a restaurant could submit a true custom design for approval.”
‘Shed’-ding some light on the situation
Zander Nicastro, manager of the Beer Garage on Christopher Street in Manhattan, said restaurants should be allowed to maintain roadside dining all year round.
“It would be too much to take them up, put them down…,” Nicastro said. “If they stay up all year round, bars and restaurants will fix them up and do them up real nice. It would be better that just a temporary look.”
Leslie Clark, a member of the Coalition United for Equitable Urban Policy, an alliance of community-based associations opposed to roadside dining, said that roadside dining has led to filthy and congested streets that stink and are rat infested.
She said street sweeping has long been interrupted on streets with dining sheds. Some streets haven’t been properly cleaned by a Sanitation Department broom truck since the pandemic. She also said that in narrow streets with dining sheds, it can be difficult for emergency vehicles to get through.
Clark is urging the city council to hold public hearings across the city prior to the passage of any bill. Her group is calling for a seasonal sidewalk cafe program that covers the five boroughs.
She said any bill permitting roadway dining must require the restaurateur to take down their dining infrastructure each night. “You have to clean the streets,” she said.
Havens for rats?
Many sheds do attract rats.
Two employees of TATO Tex-Mex, a restaurant that recently opened on MacDougal Street in Greenwich Village, said they see rats coming out of the roadway sheds located on either side of their establishment.
The sheds, which belong to Monte’s Trattoria and Kati Roll, appear to be used for storage, with one of them covered in rat feces.
“There are a lot of rats that come out at night in those sheds,” one employee, who spoke on the condition of anonymity, said. “They have their little holes under the sheds.”
The employee pointed to the trash outside the restaurants. “You can see there’s a lot of garbage bags out there and they [the rats] tear them, so there’s a lot of garbage on the street.”
Noam Dworman, the owner of the Olive Tree and Comedy Cellar, said the sheds would be in much better condition if restaurant owners knew what the city’s plan for outdoor dining was.
“Nobody wants to invest a lot of money in making a beautiful shed if they think that in a few months they are going to have to take them down.”
He said the sooner the city makes the rules governing the sheds, the streets will be cleaner and there will be better materials. “People will invest in them.”
a rat

A rat digs through a trash bag that sits between two dining sheds on MacDougal Street in the Village. Photo by Gabriele Holtermann
Dworman opined that the issue with rats is overblown and that they have always been a problem.
But the dilapidated sheds are unlikely to be torn down anytime soon.
The legislation, in its current form, would not go into effect for 180 days after it becomes law. Furthermore, restaurants would then have a year to apply for a permit.
Rigie said that many of the criticisms can be tackled when the supervisory body does the rule making.
“I think many of the concerns can be addressed through standardization, through design guidelines, and enforceable rules. I think a lot of these issues can be addressed.”
Furthermore, the rules could be made to ensure access for cleaning as well as define hours of operation.
Rigie also doesn’t want the program to be too expensive. Prior to the pandemic, the consent fees to operate a sidewalk seating area often cost tens of thousands of dollars per year, and that came after producing architectural plans and a six-month approval process.
Evan Franca, owner of BKLYN Crepe on Flatbush Avenue, said that outdoor dining has been a tremendous help to his business but he will only keep it if the city doesn’t charge too much.
“I love it but if they’re gonna charge us like $20,000 a year, it doesn’t make sense for us. But we hope it’s reasonable.”
 

David Goldsmith

All Powerful Moderator
Staff member
3

Do Dining Sheds Still Make Sense?​

They were crucial for restaurants and cooped-up New Yorkers during the pandemic. Now their usefulness is being debated..
When the city’s outdoor dining program began in the summer of 2020, it was rightly celebrated as salvation — keeping restaurants in business after months of forced closure and delivering to us a lost and desperately needed sociality. As the world opened up, however slowly and hesitantly, the program lost its glow in various quarters — particularly residential neighborhoods, where the experience was typified by too much noise and garbage and a Malthusian growth in the rat community. Complaints were made; petitions were signed; lawsuits were filed. Then in August, in a gesture of apparent compromise to the dissenters, Mayor Eric Adams announced an initiative after eating outside one night. The city had torn down 24 abandoned dining sheds — “eyesores,” he called them — belonging to restaurants that had shut down.
The move was largely performative. There are 13,000 restaurants participating in the outdoor dining program — many with sheds that do not comply with the rules — which still operates under the auspices of an emergency order. The Adams administration has made returning the city to a pre-Covid vibrancy a central mission, but the prevalence of empty sheds and sidewalk tables — even on bright, mild winter days, when we might theoretically enjoy sitting down in a heavy sweater to a bowl of herby lentil soup — sends a countervailing message of a city that has yet to fully emerge from a ghostly recent past. A few weeks ago, I had breakfast at a curbside table at a cafe on Court Street; my friend and I and one other woman eating alone were the only people outside of a place that was packed indoors. Policy has not caught up to the realization that New Yorkers have stopped pretending that they are Dutch.
At the moment, the City Council and the mayor’s office are embroiled in long debates about how to forge a plan for outdoor dining to become permanent. All the various warring constituencies make that incredibly challenging. A bill in the Council would leave sidewalk dining a part of the landscape all year long, and on the streets, dining areas would be set up for seven months a year (from April to October).
The restaurant industry favors as much of this as possible all the time. Those undone by the disruption that outdoor restaurants have brought into their neighborhoods, and those who hate the privatization of public space more generally, oppose many aspects of the program, especially the sheds, which take up so much room, are often visually a drag and whose enclosures do nothing to facilitate interaction with pedestrian culture.

“I’m uptown having lunch with the ladies in red-bottomed shoes, and I’m downtown with activists in their Converse sneakers,” Diem Boyd who founded a Lower East Side neighborhood group, L.E.S. Dwellers, told me, “and they all want their city to be back to normal.” She has been fighting against the proliferation of sheds downtown for at least two years, having brought suit against the city for the infringements they brought to quality of life.
Cyclists and advocates for open streets have demonstrated very vocal support for the program out of the fear that if it disappears, the square footage will be given over to parking spaces. Drivers, who have an increasingly hard time finding those spaces, hold a different view. Part of the problem is that the debate has remained entrenched in this binary — the fight for cars versus the fight for setting up bistro tables on the street — when it ought to be broader and more creative.
Outdoor dining could be scaled back without capitulating to car owners at all. The space could be given over to pedestrian plazas, for example, or even to the lidded garbage bins the city has been considering as a way to deal with the rodent problem. The city could get rid of sheds entirely and make outdoor licenses available to restaurants on a rotating basis, so there would always be options for the immunocompromised as well as the eternally hardy, but not every restaurant that wanted to participate in the program would be doing so at the same time. Some of this seems fairly simple.
Further slowing the progress of reaching any decision about the dining program is an argument over what city agency will run it. Currently, the program falls under the direction of the city’s Department of Transportation. But the agency has struggled to deal with what it already has in its remit. The department built just over four miles of protected bus lanes last year, far short of its goal. It is hard to know how it would successfully oversee thousands of restaurant sheds in addition. Until a permanent program is devised, it seems the status quo will remain.
 

David Goldsmith

All Powerful Moderator
Staff member

Emergency Executive Order 435​

June 20, 2023
Download Emergency Executive Order 435
WHEREAS, a state of emergency to address the economic and health threats and impacts of COVID-19 in the City of New York was first declared in Emergency Executive Order No. 98, dated March 12, 2020, and extended most recently by Emergency Executive Order No. 411, dated May 20, 2023, and expired on June 19, 2023; and
WHEREAS, the federal COVID-19 public health emergency declaration ended on May 11, 2023, and the New York state disaster emergency for COVID-19 ended on September 12, 2022; and
WHEREAS, the City has ended public health-related measures that had been ordered to address the COVID-19 emergency, including the requirement for prospective City employees to be vaccinated against COVID-19, which was rescinded by Executive Order No. 25, dated February 6, 2023; and the “Key to NYC” program, which was ended in accordance with Emergency Executive Order No. 50, dated March 4, 2022; and
WHEREAS, although the City, state, and federal governments have rescinded various public health-related measures responding to COVID-19, the City has yet to fully recover from the effects of the COVID-19 pandemic; and
WHEREAS, as of June 2023, the City’s unemployment rate is 5.4%, higher than the national rate of 3.7%, and higher than City’s unemployment rate of 4.3% in February 2020; and
WHEREAS, the City’s office occupancy rate is approximately 48% of the pre-pandemic rate, and the City’s subway ridership is at 70% of pre-pandemic levels; and
WHEREAS, 53% of New York residents are rent burdened, meaning they pay more than 30% of their monthly income on rent and utilities, and 32% are severely rent burdened, meaning they pay more than 50% of their monthly income on rent and utilities; and
WHEREAS, according to the Comptroller’s June 2023 Economic and Fiscal Outlook, more jobs in the accommodation and food services, construction, arts and entertainment, and retail industries were eliminated by the COVID-19 pandemic than in other industries, and employment in those industries has been slower to recover than in other industries and has not returned to pre-pandemic levels; and
WHEREAS, the Open Restaurants program saved 100,000 jobs and kept many food establishments viable during the pandemic, and continues to aid restaurants as they recover from the deleterious economic effects of the COVID-19 restrictions on social gatherings; and
WHEREAS, during the pandemic, the Department of Transportation was authorized by Emergency Executive Order No. 126, dated June 18, 2020, as subsequently amended, to establish and administer the Open Restaurants program to expand seating options for restaurants, bars and other establishments on the sidewalk or roadway in front of their establishment, in order to promote social distancing and assist restaurants and bars during difficult economic times, and the Department of Transportation, in consultation with the Department of Small Business Services, the Department of Sanitation, the Department of Buildings, and the not-for-profit corporation that contracts with the City to provide economic development services on behalf of the City, was also authorized by sections 1 through 7 of Emergency Executive Order No. 157, dated October 28, 2020, as subsequently amended, to establish and administer the Open Storefronts program to allow businesses to conduct certain business operations in the space directly in front of their establishments to increase their customer base while maintaining social distancing; and
WHEREAS, the City Council is currently considering legislation to establish a permanent Open Restaurants program, and this order will provide continuity to food establishments that are currently participating in the Open Restaurants program; and
WHEREAS, this Order is given because certain emergency measures continue to be necessary for the City’s recovery from the economic, housing, transportation, and other effects of the COVID-19 pandemic;
NOW, THEREFORE, pursuant to the powers vested in me by the laws of the State of New York and the City of New York, including but not limited to the New York Executive Law, the New York City Charter and the Administrative Code of the City of New York, and the common law authority to protect the public in the event of an emergency:
Section 1. I hereby declare a State of Emergency related to the effects of the COVID-19 pandemic and the recovery therefrom within New York City.
  • 2. In order to provide continued assistance to restaurants and bars recovering from the employment, financial and economic effects of COVID-19, I hereby direct the Department of Transportation to continue the Open Restaurants program.
  • 3. I hereby suspend the following provisions of the New York City Administrative Code (“Ad. Code”) to the extent necessary to provide for the continued administration and operation of the Open Restaurants program, subject to applicable guidance issued by the Department of Transportation, the Department of Health and Mental Hygiene, the New York State Department of Health, and the State Liquor Authority:
    1. Ad. Code. section 10-125, relating to the prohibition of the consumption of alcohol on streets;
    2. Ad. Code. section 17-306(c), to the extent necessary to clarify that the definition of “food vendor” set forth in such section shall not include any restaurant participating in the Open Restaurants Program;
    3. Ad. Code sections 19-124(a)(2) and 19-124(c), to the extent any restaurant is required by such provisions to obtain a permit or pay a fee to erect or maintain a canopy over any outdoor seating area such restaurant operates pursuant to the Open Restaurants Program;
    4. Ad. Code, title 20, chapter 2, subchapter 6, relating to licenses for sidewalk cafes;
    5. Ad. Code section 20-465(q)(1), relating to prohibiting any general vendor from vending within 20 feet of a sidewalk cafe; and
    6. Ad. Code, Title 28, Chapter 7, section BC 3101.1, relating to special building construction, section BC 3111, relating to the construction of sidewalk cafes, and section BC 3202.4.1, relating to the construction of enclosures for sidewalk cafes, provided, however that section BC 3111.4, relating to prohibited obstructions, and section BC 3111.6, relating to accessibility, are not suspended.
  • 4. I hereby suspend the following provisions of the Rules of the City of New York (“RCNY”') to the extent necessary to provide for the continued administration and operation of the Open Restaurants program, subject to applicable guidance issued by the Department of Transportation, the Department of Health and Mental Hygiene, the New York State Department of Health, and the State Liquor Authority:
    1. RCNY Title 3, Chapter 4, sections 404-03(b)(2), relating to Building Code and permit requirements, and 404-03(b)(3), relating to submission of floor and elevation plans;
    2. RCNY Title 6, Chapter 2, Subchapter F, relating to licenses for sidewalk cafes;
    3. RCNY Title 6, Chapter 1, section 1-03(b), relating to the display of license signs by sidewalk cafe licensees;
    4. RCNY Title 34, Chapter 2, sections 2-03 and 2-04(b)(2), to the extent such provisions require a restaurant to obtain a permit or pay a fee to erect or maintain a canopy over any outdoor seating area such restaurant operates pursuant to the Open Restaurants program;
    5. RCNY Title 50, Chapter 1, section 1-01, to the extent necessary to clarify that the definition of “street event” set forth in such section shall not include any outdoor service provided by a restaurant pursuant to the Open Restaurants program; and
    6. RCNY Title 62, Chapter 3, Subchapter B, sections 3-07(c)(2) and 3-07(f)(4), to the extent such provisions impose fees for sidewalk cafe revocable consent applications or renewal applications.
  • 5. I hereby suspend the following provisions of the New York City Zoning Resolution (“ZR”) to the extent necessary to provide for the continued administration and operation of the Open Restaurants program, or to otherwise allow a restaurant to provide outside dining service in any outdoor space that such restaurant controls pursuant to a deed or lease, including a parking lot, subject to applicable guidance issued by the Department of Transportation, the Department of Health and Mental Hygiene, the New York State Department of Health, and the State Liquor Authority:
    1. ZR, Article 1, Chapter 4, relating to sidewalk cafe regulations;
    2. ZR Section 32-41 and 42-41, to the extent such sections require eating and drinking establishment uses in certain Commercial Districts or Manufacturing Districts to be located within completely enclosed buildings;
    3. ZR Section 36-46, to the extent such section prohibits a restaurant from using adjacent off-street parking for an outdoor seating area in Commercial Districts;
    4. ZR Section 44-35, to the extent such section prohibits a restaurant from using adjacent off-street parking for an outdoor seating area in Manufacturing Districts;
    5. ZR Section 52-34, to the extent such section requires certain eating and drinking establishment uses in Residence Districts to be located within completely enclosed buildings;
    6. ZR Section 97-13, to the extent such section limits the locations of sidewalk cafes in the Special 125th Street District;
    7. ZR Section 109-02, to the extent such section imposes any condition on the use of public streets and sidewalks for the maintenance of sidewalk cafes or outdoor cafes by restaurants in the Special Little Italy District; and
    8. h) ZR Section 117-05, to the extent such section limits the locations of sidewalk cafes in in the Special Long Island City Mixed Use District.
  • 6. Nothing in this Order concerning the Open Restaurants program shall relieve bars, restaurants and other establishments from their obligation to adhere to all local, state and federal requirements relating to health and safety, except as modified by sections 3, 4, and 5 of this Order. Any restaurant, bar or other establishment participating in the Open Restaurants program shall adhere to all local, state and federal requirements relating to accessibility for people with disabilities, including path of travel, minimum table heights, and clearance requirements. Any restaurant, bar or other establishment participating in the Open Restaurants program shall adhere to all applicable guidance issued by the Department of Transportation, the Department of Health and Mental Hygiene, the New York State Department of Health and the State Liquor Authority.
  • 7. In order to enable businesses to continue utilizing outdoor space as they recover from the economic effects from COVID-19, I hereby direct the Department of Transportation, in consultation with the Department of Small Business Services, the Department of Sanitation, the Department of Buildings, and the not-for-profit corporation that contracts with the City to provide economic development services on behalf of the City, to continue the administration and operation of the Open Storefronts program.
    1. For purposes of sections 7 through 13 of this Order, the following terms have the following definitions:
      1. (a) The term “covered business” means a business located in or operating out of a ground floor commercial premises, including a food service establishment, to the extent such food service establishment limits the business that it conducts in its outdoor commercial premises to pick-up of pre-ordered food and the offer and sale of prepared prepackaged food or whole, uncut fruit or vegetables when operating as an Open Storefront. Any such pre-ordered food for pick-up or prepackaged food offered for sale outdoors must comply with Articles 71 and 81 of the New York City Health Code, Chapter 23 of Title 24 of the Rules of the City of New York, the New York State Sanitary Code, and any other relevant state or federal food safety regulation or law.

        (b) A food service establishment may participate in the Open Storefronts program and the Open Restaurants program, provided that any such food service establishment may not provide both outdoor dining seating and goods for sale on the sidewalk at the same time.
      2. The term “ground floor commercial premises” means any premises that is visible from the street and directly accessible to the public from the street which is occupied or used, or could be occupied or used, for the purpose of offering or selling goods at retail.
      3. The term “outdoor commercial premises” means the space directly in front of a ground floor commercial premises on the sidewalk or on any street opened pursuant to the Open Streets program established by Ad. Code section 19-107.1, or any outdoor off-street parking space or private yard adjacent to a ground floor commercial premises, where such premises is authorized to conduct certain business pursuant to this Order.
    2. To participate in the Open Storefronts program, a covered business must submit an attestation, available on the Department of Transportation’s website.
    3. Any covered business participating in the Open Storefronts program shall adhere to all applicable program guidelines issued by the Department of Transportation (the “DOT Guidelines”), as well as any additional applicable guidance of the Department of Small Business Services, the Department of Sanitation, the Department of Health and Mental Hygiene, the New York State Department of Health or any other relevant agency.
    4. A covered business or vendor on a street where a covered business is using an outdoor commercial premises must allow for a minimum eight (8) foot clearance for pedestrian traffic on the sidewalk at all times. Obstructions such as parking meters, traffic signs, tree pits that are flush with sidewalk grade, and street lamp posts shall not detract from the measurement of the eight foot clearance; however the calculation of the minimum eight (8) foot clearance shall be unencumbered of any street furniture including permanent benches, bicycle parking, tree pits with guard rails, and kiosks.
    5. A covered business participating in the Open Storefronts Program shall be given priority over a vendor on a street where a covered business is using an outdoor commercial premises to use the outdoor commercial premises.
    6. Notwithstanding the foregoing, a covered business may not operate an outdoor commercial premises in the World Trade Center Zone, as such area is described in section 20-465(g)(2) of the Ad. Code.
    7. The Open Storefronts Program shall remain in effect for the duration of the emergency.
  • 8. I hereby suspend the following provisions of the Ad. Code, the RCNY, and the ZR, to the extent necessary for the continued administration and operation of the Open Storefronts Program as described in the DOT Guidelines:
    1. Section 16-118 of the Ad. Code, relating to the prohibition on littering, to the extent necessary to allow a covered business to operate an outdoor commercial premises in accordance with the DOT Guidelines;
    2. Sections 17-306(c), (d) and (h) of the Ad. Code, relating to the definition of “food vendor,” “food vending business,” and “vend” to the extent necessary to provide that a covered business participating in the Open Storefronts program is not a food vendor or a food vending business, and is not vending, as defined in such section;
    3. Sections 17-315(a) of the Ad. Code, relating to restrictions on food vending, to the extent necessary to require that a pushcart placed on a street where a covered business is operating an outdoor commercial premises must allow for a minimum eight (8) foot clearance for pedestrian traffic, as required by subdivision d of section 7 of this Order;
    4. Section 19-124(a) of the Ad. Code, to the extent such subdivision prohibits the use by a covered business participating in the Open Storefronts program of a collapsible tent or umbrella in an outdoor commercial premises, in accordance with applicable provisions of the DOT Guidelines;
    5. Section 19-136 of the Ad. Code, relating to obstructions, to the extent such section would restrict the locations in the City where the Open Storefronts Program may operate and to the extent any provision of such section conflicts with this Order or the DOT Guidelines;
    6. Section 20-228(f) of the Ad. Code, relating to the definition of a “stoop line stand,” to the extent necessary to clarify that a covered business participating in the Open Storefronts program does not operate a stoop line stand, except as described in section 9 of this Order;
    7. Section 20-452(b) of the Ad. Code, relating to the definition of a “general vendor,” to the extent necessary to clarify that a covered business participating in the Open Storefronts program is not a general vendor as defined in such section;
    8. Section 20-465(a) of the Ad. Code, relating to restrictions on general vending, to the extent necessary to require that a general vendor on a street where a covered business is operating an outdoor commercial premises must allow for a minimum eight (8) foot clearance for pedestrian traffic, as required by subdivision d of section 7 of this Order;
    9. Sections BC 3101.1, relating to special construction, BC 3103, relating to temporary structures, and BC 3202, relating to encroachments, of the New York City Building Code, in chapter 7 of title 28 of the Ad. Code, to the extent such sections prohibit the use by a covered business participating in the Open Storefronts program of a collapsible tent or umbrella in an outdoor commercial premises as allowed pursuant to applicable provisions of the DOT Guidelines;
    10. 34 RCNY sections 2-03, relating to fees, and 2-04, relating to canopies, to the extent such provisions would require a covered business participating in the Open Storefronts program to obtain a permit or pay a fee to use a collapsible tent or umbrella an outdoor commercial premises, in accordance with the DOT Guidelines;
    11. 34 RCNY sections 7-02, relating to obtaining a revocable consent, and 7-04, relating to eligible improvements, standards and annual rates, to the extent such provisions would apply to the installation or construction in an outdoor commercial premises of an improvement or other structure in accordance with the DOT Guidelines;
    12. 50 RCNY section 1-01, relating to definitions relevant to street activity permits, to the extent necessary to clarify that the definition of “street event” set forth in such section shall not include any activity of a covered business conducted pursuant to this Order;
    13. ZR section 32-41, to the extent necessary to allow a covered business participating in the Open Storefronts program to operate an outdoor commercial premises in accordance with this Order and the DOT Guidelines;
    14. ZR section 36-46, to the extent such section prohibits a covered business from using adjacent off-street parking for an outdoor commercial premises in Commercial Districts; and
    15. ZR section 44-35, to the extent such section prohibits a covered business from using adjacent off-street parking for an outdoor commercial premises in Manufacturing Districts.
  • 9. The holder of a license to operate a stoop line stand pursuant to section 20-233 of the Ad. Code shall, while this Order is in effect, be deemed a covered business participating in the Open Storefronts program for the purpose of operating such stoop line stand, so that such holder of a license may continue any activity that is allowed under the terms of such license, provided, however, that the holder of such a license shall not engage in any other activity allowed by to this Order or the DOT Guidelines without first submitting an attestation to participate in the Open Storefronts program pursuant to subdivision b of section 7 of this Order.
  • 10. Notwithstanding any other provision of this Order, the Department of Transportation may suspend or revoke operation of the Open Storefronts program in any location in the City upon finding it necessary to do so to preserve safety and public health.
  • 11. Nothing in this Order concerning the Open Storefronts program shall relieve a covered business from its obligation to adhere to all local, state and federal requirements relating to health and safety, except as modified by section 8 of this Order. Any covered business participating in the Open Storefronts program must maintain its outdoor commercial premises in a manner that complies with all local, state and federal requirements relating to accessibility for people with disabilities, including path of travel, minimum table height, and clearance requirements.
  • 12. Any covered business participating in the Open Storefronts program is prohibited from conducting business in its outdoor commercial premises while a DSNY Snow Alert is in effect. Notwithstanding sections 16-123 and 16-124 of the Ad. Code, the owner of any such covered business shall be responsible for removing snow and ice from its outdoor commercial premises, as if such area is an area of paved sidewalk abutting a building under the business’s control, and in accordance with applicable law and rules.
  • 13. I hereby direct the Fire Department of the City of New York, the New York City Police Department, the Department of Buildings, the Sheriff, and other agencies as needed to immediately enforce the directives set forth in this Order in accordance with their lawful enforcement authorities, including but not limited to Administrative Code sections 15-227(a), 28-105.10.1, and 28-201.1, and section 107.6 of the New York City Fire Code. Violations and directives set forth in this Order may be issued as if there were violations under the New York City Health Code, title 24 Rules of the City of New York sections 3.07 and 3.11, and may be enforced as such by the Department of Health and Mental Hygiene or any other agency named in this section.
  • 14. This Emergency Executive Order shall take effect immediately. The State of Emergency shall remain in effect for a period not to exceed thirty (30) days or until rescinded, whichever occurs first. Additional declarations to extend the State of Emergency for additional periods not to exceed thirty (30) days shall be issued if needed.


Eric Adams
Mayor

 

David Goldsmith

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Shed_First_Avenue_2_37.jpg

A dining shed on First Avenue in the East Village. (Photo by The Village Sun)


Judge rules there is no emergency reason for outdoor dining, issues injunction​


August 2, 2023



BY LINCOLN ANDERSON | Updated Aug. 2, 10:20 p.m.: In a stunning ruling, a judge has declared that Mayor Adams cannot repeatedly keep issuing emergency executive orders to allow the city’s outdoor dining program — including thousands of roadway sheds — to continue.
On Tuesday, Justice Arlene Bluth of New York State Supreme Court, ruled that the mayor’s ongoing issuing of orders to suspend 26 different local laws to allow outdoor dining violates the state law that “limits the permissible triggers and length of any such mayoral decrees.” Along with her ruling, she ordered an injunction blocking Adams from further issuing the emergency order to allow the program.
(To read the judge’s decision, click here.)
Coincidentally, Bluth’s ruling comes just one day before the City Council is set to vote on legislation to make the pandemic-inspired program, known as Open Restaurants, permanent.
The citywide ad hoc group CUEUP (Coalition United for Equitable Urban Policy) hailed the strong verdict as “unambiguous” — adding that it “calls into question the future of the temporary Open Restaurants program as the City Council is poised to vote on controversial legislation making permanent the unlawful program.
“As a result of the court’s ruling,” CUEUP said, in a press release, “the city may not rely on emergency orders to support its beleaguered temporary Open Restaurants program. Simply put, temporary Open Restaurants has no basis in law and should immediately be phased out.”
The ruling concerns a community lawsuit filed last July that argued there is no longer a legal emergency justification for Open Restaurants now that the pandemic has waned. The lawsuit was filed against Governor Hochul, Mayor Adams and New York City. After the suit was lodged, however, Hochul promptly ceased issuing an emergency executive order allowing outdoor dining and, in return, was dropped from the lawsuit. However, unlike Hochul, Adams merely doubled down — retooling the language of his ongoing executive order, changing it to say that, rather than health issues, outdoor dining is now critically needed to address emergency economic reasons, such as unemployment and high rent.
Between Adams and former Mayor de Blasio, City Hall has issued 226 emergency executive orders — one every five days — to allow the roadway dining sheds program to continue.
After Adams tweaked the wording of his emergency order at the end of June, the plaintiffs returned to court on July 5 to file an “amended petition” — basically updating their lawsuit to respond to the mayor’s maneuver.
Bluth did not buy what she dubbed the city’s new “general economic rationale” for continuing the Open Restaurants program, noting, for example, that unemployment is only slightly higher than pre-pandemic, and that factors other than COVID explain why office occupancy rate and subway ridership numbers are still down.
“There is no dispute that nearly all of the COVID-19 related restrictions, including those involving social distancing and indoor masks, have been lifted,” she wrote. “Accordingly, the Court must conclude that there is no longer an emergency that could justify the suspension of local laws to justify outdoor dining. Clearly, the executive order now in effect does not purport to rely on the dangers or harms from the virus itself. Instead, it focuses on the recovery process from COVID-19. But that is simply too vague a justification to permit an executive to routinely suspend the laws for over three years.
A long, unbroken row of shed structures, like this one in Petrosino Square, could hinder firefighters’ ability to battle building blazes, Andrew Ansbro, president of the New York City firefighters’ union, has warned. (Photo by The Village Sun)
“To be clear, the Court is not minimizing or downplaying the long-term economic effects of the pandemic,” Bluth said. “There is no doubt that New York City and the entire country will be dealing with the negative ramifications of COVID-19 for a long time. But the question here is the nature of the claimed emergency. The executive order points to a slightly higher unemployment rate (according to the order, the unemployment rate is currently 1.1% higher in New York City than it was before the pandemic began in February 2020). That does not justify the imposition of emergency powers to suspend local laws… .”
Bluth added that the city, in its response, did not even “show that the restaurant industry is still struggling to the point where emergency action is required.”
The city typically tosses out the conveniently round figure of 100,000 for the number of jobs allegedly saved by Open Restaurants. But Leslie Clark, a CUEUP spokesperson, said while the media parrot this figure, they don’t make efforts to verify it.
“De Blasio threw that number out in September 2020 and every journalist repeats it,” she said. “They use two things: ‘lifeline’ and ‘100,000 jobs.’ How do you know it’s true?”
Also on jobs, Bluth continued that, for example, while the advent of working from home has significantly reshaped the city, that doesn’t equal an emergency.
“That the occupancy rate of commercial offices is lower and that fewer people are taking the subway does not, standing alone, constitute an emergency,” she wrote. “Many factors that have nothing to do with an ‘emergency’ on these issues, chief among them being the rise of remote work. And the Court observes that these two asserted reasons have only a tenuous connection to a restaurant’s revenues. Even if people are working remotely, they can still go to (and order from) a local restaurant. That is not to say that fewer commuters into New York City (a possible reason for these numbers) will have no effect on the success of a bar or restaurant. The Court merely finds that there are many overlapping factors relating to the lower occupancy rate for commercial properties and lower subway ridership and the executive order does not cite anything that remotely constitutes an emergency. Moreover, the severity of these cited factors does not approach an emergency; for instance, the unemployment level is not so high that it invokes concerns about a recession or depression.”
The city also argued, in its response to the suit, that the plaintiffs lack “standing” to challenge the mayor’s ability to issue the executive orders. The 34 individual plaintiffs — all local residents — hail from 15 neighborhoods across the city, including the West Village, East Village, South Village, Lower East Side, Little Italy, Flatiron, Hell’s Kitchen, Bay Ridge, Williamsburg, Washington Heights, Bushwick, Inwood, Douglaston, Flushing, Jackson Heights, Upper West Side and Mott Haven.
However, Bluth countered that the local residents absolutely have standing to challenge the sweeping and transformative policy that impacts the city’s very streetscape and its use.
“The local laws suspended by the executive order require that certain areas, like sidewalks and streets, are public areas and not places for private establishments to run their businesses,” Bluth declared. “Part of the rationale for these laws is to ensure that all city residents and visitors including pedestrians, cyclists and vehicles, can traverse these neighborhoods in a safe way
“The Court questions who would have standing in this case if not petitioners? Petitioners contend they are New York City residents who want a court to address the efficacy of a governmental action that purportedly adversely affects not just them, but every New Yorker. That is, after all, one purpose of the courts — to allow residents to seek judicial review of the actions of another branch of government.”
According to the city, there have been more than 13,000 roadway dining sheds across the city — with around 20 percent of them clustered in nightlife-heavy Downtown Manhattan.
In addition, the Adams administration countered that the judiciary should have zero review power over policy matters such as this and that government should have carte blanche to issue executive orders and implement programs like Open Restaurants.
However, Bluth fired back, “This Court declines to embrace a theory of judicial review that would permit unlimited actions by an executive without any check by the judicial branch.”
In short, Bluth wrote, “The Court finds that this executive order fails to offer a rational justification for suspending local laws in order to permit outdoor dining. Simply put, the Court finds that the order did not sufficiently explain why an emergency exists that requires the suspension of certain local laws.”
The city also contended, in arguing against the lawsuit, that the plaintiffs have not suffered “irreparable injury” due to the contentious program.
Yet, Bluth disagreed once again, saying that the plaintiffs “will continue to suffer from the loss of public use of the sidewalks and other public areas covered under the executive order without the issuance of an injunction. Petitioners insist there has been increased prevalence of vermin, trash, nuisance from noise, as well as harmful effects on businesses not entitled to use this outdoor space. These allegations establish irreparable harm.”
In a statement to The Village Sun, a mayoral spokesperson said, “The temporary Open Restaurants program has saved 100,000 jobs, enlivened neighborhoods, and provided a lifeline for small businesses since COVID-19 hit New York City. Millions of New Yorkers and visitors to our city have enjoyed the outdoor dining experience, and the judge’s order makes clear that the time to pass a permanent program is now. Outdoor dining is part of the fabric of our city, and it is here to stay.”
According to the city, the judge’s order does not require the removal of the existing outdoor dining setups under the temporary Open Restaurants program. However, D.O.T. has stopped processing new applications for the temporary program — even though there were 60 new requests last month alone. The city intends to file a notice of appeal of the court order.
Attorney Michael Sussman, who is representing the plaintiffs, said, “For two years, we have fought to preserve the rule of law and the dignity and peaceable enjoyment of our streets for the residents of [the city]. Today, the State Supreme Court has dealt a blow to the unjust temporary Open Restaurants program, which was precariously propped up by two bankrupt executive orders [by the mayor and previously by the governor]. The temporary Open Restaurants program is without legs or stilts or any other support and should now be dismantled.”
“The City Council, not the mayor, must act if New York City is to have a legitimate Open Restaurants program,” Sussman asserted. “We demand that the City Council adhere to lawful processes, including a proper environmental review, which they have conveniently neglected for more than two and a half years.”
“It is high time the city stops doing end runs around transparency and environmental review,” added Leif Arntzen, a Greenwich Village member of CUEUP. “The City Council has one choice: Do the right thing, or we will see them in court.”
“Accountability is paramount in the governance of our city,” said CUEUP spokesperson Clark. “The way to get this right is by conducting a comprehensive environmental impact study, free from the influence of special-interest lobbyists. This is an opportunity for Mayor Adams and the City Council to demonstrate a commitment to developing a dining program that works for all New Yorkers.”
As for the City Council’s anticipated vote tomorrow to codify Open Restaurants, Clark told The Village Sun that, should the Council approve the legislation, the plaintiffs would immediately go back to court to take up their first lawsuit. Filed in October 2021, that suit argued that the city must do a proper, full-scale environmental study, or E.I.S., for Open Restaurants. The plaintiffs won that case in State Supreme Court in March 2022, but the city appealed. In October 2022, an Appellate Court panel ruled that the case was “not ripe” since the permanent law had not been passed yet — though the court notably did not rule against the lawsuit’s merits.
“If the city passes this [law on permanent Open Restaurants], we’ll be back in court on Friday on the first lawsuit,” Clark assured. “The necessity of doing an environmental impact study remains open. The Appellate Division did not rule against that.
“Twice now a State Supreme Court has said to the petitioners, ‘You’re right,'” she noted. “While we are jubilant [over the latest ruling], we’re also frustrated. We keep winning and nothing changes. But it doesn’t stop us. We have really been dogged about this. These are our neighborhoods. We are not going to give up on this.”
Clark said it was expected that the city would appeal and request that the stay on the issuing of Adams’s emergency order be lifted.
However, she said, as a result of Bluth’s ruling, “Right now, temporary Open Restaurants are illegal.”
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Dining shed hit-and-run crash in East Village​

FEBRUARY 26, 2024
BY THE VILLAGE SUN | Talk about fast takeout!
The roadside dining shed outside Frank restaurant in the East Village got totally taken out by a vehicle crash early Monday morning.
Luckily, it happened at a time when the shed was not in use, or it might have been a deadly catastrophe.

The Italian eatery, at 88 Second Ave., is located right around the corner from the Ninth Precinct.
(Photo by Stuart Zamsky) (Photo by Stuart Zamsky)
According to police, the crash happened at 6:09 a.m. A police spokesperson said a driver in an unknown vehicle heading southbound on Second Avenue struck a blue Tesla, lost control and careened into the open-air “streetery” structure.
The unknown vehicle fled the scene heading southbound. The Tesla driver was taken to Bellevue Hospital and treated for minor injuries.

Photos by Stuart Zamsky, president of the E. Fifth Street Block Association, clearly show tire tread marks at the site.
(Photo by Stuart Zamsky)
The police spokesperson said there is an “open report” for the incident and that officers will review camera footage to try to track down the driver that crashed into the dining hut.
A worker at Frank, asked if they would rebuild the dining yurt, said, “Not entirely sure.”
 
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