Appeals court keeps city’s outdoor dining reservation open
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A lawsuit that aimed to table the city’s outdoor dining program was tossed by the Appellate Division, First Department this week. File photo via La Boom
By Jacob Kaye
Outdoor dining will continue to have its day in the sun – at least for now – after an Appellate Court ruling issued this week scrapped a lawsuit brought against the pandemic-era program.
A panel of judges in the Appellate Division, First Department, said late Tuesday that a lawsuit alleging the city had illegally forgone an environmental review of the program was “not ripe for judicial review” because the full extent of the city’s outdoor dining program is not yet known.
Plaintiffs in the case, which include a number of residents throughout the city including some in Queens, argued that the city hadn’t done its due diligence in evaluating the program’s impacts on the city’s neighborhoods through what is known as a State Environmental Quality Review, or SEQR. The environmental review process would have required that the program be subject to public hearings.
But a permanent outdoor dining program is not only not in place, its policies haven’t yet been decided. The city has been operating its current outdoor dining program on a temporary basis, with rules created at the start of the pandemic when a number of restaurants were unable to serve patrons indoors.
“Given the remaining legislative and administrative steps that must be taken by the City before the permanent outdoor dining program is finalized and implemented in place of the presently operating temporary program, the City’s issuance of the SEQRA negative declaration was not an act that itself inflicts actual, concrete injury,” the brief two-page decision reads.
Because of the lack of definition for the permanent program, the panel of judges said the lawsuit “should have been dismissed.”
“We are pleased the court dismissed this meritless case,” a spokesperson for the city’s Law Department said.
The panel of judges declined to rule on the merits of the case and the allegations that the program, when it’s eventually defined, be subject to an environmental review.
Michael Sussman, the attorney for the plaintiffs, many of whom are part of the organization Coalition United for Equitable Policy, said that because the merits of the case haven’t been ruled on, future lawsuits over the program haven’t been ruled out.
"Opening this process to the public and soliciting its response would have doomed the proposal
and embarrassed those who supported it,” Sussman said. “New Yorkers deserve to have a City government and elected officials who abide by our environmental laws, which require public review and comment.”
“We are considering all legal avenues available to us and look forward to re-filing our action when the City has completed the Permanent Open Restaurant legislation,” he added. “The fight to protect our public space from privatization, to safeguard our environmental laws, and to rein in unbridled government overreach is far from over.”
The Appellate Division ruling was celebrated by advocates this week, including the Alfresco NYC Coalition, which advocates for the city program.
"The Alfresco NYC Coalition is pleased to see the dismissal of a lawsuit challenging the environmental impacts of New York City's Open Restaurants program,” the group said in a statement. “Open Restaurants have taken cars off our streets and saved tens of thousands of jobs in an industry devastated by the pandemic.”
“By enlivening spaces and streets in a new and exciting way, we've seen how repurposing streets actually improves our environmental and public health,” they added. “We look forward to working with the Adams Administration and the City Council to find thoughtful and sustainable ways to transition Open Restaurants to a permanent city program that benefits all communities."
The City’s Department of City Planning said in a statement: “It’s now full-speed ahead for putting into place permanent design rules to keep this great program thriving for New Yorkers.”
We're hard at work on the permanent program’s design guidelines to make sure outdoor dining is accessible, clean, and safe for all New Yorkers,” the agency added. “Stay tuned.”
In March, New York County Supreme Court, Civil Term Judge Frank Nervo, who presided over the case, ruled that the city should have undergone the review and ordered them to do so. The Appellate Division ruling reverses that decision.
At the heart of the case was the Department of Transportation’s determination that the open restaurants program would not have a negative environmental impact on the city. That decision allowed them to forgo the review.
"For a taxpayer supported agency to declare, in effect, the Open Restaurants Program and Outdoor Seating have no negative impact on our streets and communities because that Agency has unilaterally made that determination, serves only as a thinly-veiled attempt to avoid statutory scrutiny of the program by a baseless declaration of its own omnipotence," Nervo wrote in his March decision.
The Open Restaurants program was created in 2020 as an emergency measure during the early months of the pandemic when indoor dining restrictions were in effect. Passed by executive order from both former Governor Andrew Cuomo and former Mayor Bill de Blasio, the program, set to expire at the end of 2022, is undergoing the process of becoming permanent.
In the fall of 2021, the DOT began shopping around a new text amendment to the city’s zoning laws, opening the door for a permanent program to pass in the future. The amendment does not include all details about the permanent program, though some features are known – the program would alter the city’s zoning to allow for sidewalk cafes in the outer boroughs, a change from pre-pandemic zoning and the Department of Transportation would be responsible for the program’s creation and enforcement.
Twenty community boards voted in favor of the text amendment, 23 voted against, one had no objections and one board, Queens Community Board 14, waived their right to vote.
The New York City Council in February passed the text amendment with a 43 to 6 vote. Queens Councilmembers James Gennaro and Robert Holden voted against the amendment.
Queens currently has a little less than 1,500 open restaurants in operation. Of those, around 200 are located fully in the roadway, around 1,000 are located fully on the sidewalk and around 50 are located on an open street, according to city data.
