City Council passes restaurant shanty bill despite state judge's decision against them

Photo by JQ LLC

 

 Queens Chronicle

Since 2020, outdoor dining has been a significant but usually temporary fixture of New York City. Restaurants that did not have outdoor dining space at the time were able to apply for them based on a temporary emergency outdoor dining program created by the city as a response to the pandemic, called Open Restaurants. The city estimates that 100,000 jobs were saved as a result.

After two years of public hearings, the City Council passed a bill on Aug. 3, Intro. 31-C, that will make outdoor dining a permanent city fixture — with certain restrictions.

Under the bill, which was sponsored by Councilmember Marjorie Velazquez (D-Bronx), restaurants are allowed to have street-based outdoor-dining structures from April through November, but they must be dismantled from Nov. 30 through March 31.

Sidewalk cafes, on the other hand, will be allowed year-round with the proper permit, which would cost $1,050. Curb-based roadway seating would require a separate permit as well, priced at the same amount, according to the bill’s text. Additionally, restaurants will have to pay fees based on their location and square footage.

The bill also gives restaurants time to transition from the Open Restaurants program while petitioning for a sidewalk or roadway cafe license.

Previously, Open Restaurants came under scrutiny in multiple lawsuits in which plaintiffs deemed the program unnecessary in a post-pandemic world. Other legal complaints included congestion, excessive noise and garbage issues. The lawsuits were overall ineffective in halting the program.

Restaurants utilizing any privately owned outdoor space, private parking lots, balconies, terraces, open-air rooftop space or on open-air boats do not need to apply for permits, according to the city Department of Transportation, which will administer the program.

“As we move from an emergency program to one under local law, this legislation strikes the right balance for restaurants, neighborhoods, and all New Yorkers,” Speaker Adrienne Adams (D-Jamaica) said in a statement. “It allows a greater number of restaurants to continue participating, while easing the bureaucratic barriers, making the licensing costs affordable, and providing orderly and uniform regulations that were missing from the temporary program. This permanent program will serve and support our neighborhoods, restaurants, residents and city for years to come.”

In a press release, Mayor Adams said, “Outdoor dining is here to stay in New York City ... This bill preserves the best parts of the temporary program and eliminates the worst. We will create a vibrant, clean, and safe streetscape; give restaurants the clarity they need to continue serving their customers; and make New York City the best outdoor dining city in the world.”

Adams is expected to sign the bill into law once it reaches his desk.

Cue Up NY 

  In a long-awaited decision, State Supreme Court Judge Arlene P. Bluth declared the Mayor’s emergency executive orders suspending local laws to allow for continuous outdoor dining in New York City violate the state law which limits the permissible triggers and length of any such mayoral decrees. The unambiguous ruling 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.

Judge Bluth's scathing critique of Mayor Adams’ Executive Order sends a clear message: "The local laws suspended by the executive order required that certain areas, like sidewalks and streets, are public places and not places for private establishments to run their businesses." The court unequivocally rejected any notion of unchecked executive power, stating, "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."

The ruling exposed the mayoral order's wholly inadequate justification for suspending local laws. Judge Bluth concluded: "The court finds that this executive order fails to offer a rational justification for suspending [twenty-six] local laws 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 court agreed with the thirty-four petitioners from across the city who claimed that the emergency economic conditions used to justify the mayor’s overreach no longer exist. Judge Bluth minced no words, stating, "The problem here is that respondent has not adequately explained that an emergency involving an immediate or imminent danger still exists to justify the suspension of local laws."

As a result of the court’s ruling, 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.

Attorney Michael Sussman, representing the petitioners, noted, "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. 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,” asserted Sussman. “We demand that the City Council adheres 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. The City Council has one choice: do the right thing, or we will see them in court," added Leif Arntzen for CueUp, a leading advocacy group.

Today’s ruling makes clear that the architects of the Open Restaurants program have cut corners and sidestepped lawful procedures in keeping a pandemic program in place long after that emergency ended.

“Accountability is paramount in the governance of our city," said Leslie Clark, a spokesperson for CueUp. "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.”

Read Judge Bluth’s ruling on e-Track:

Index No. 156328/2022

 

City Council set to make the shanty emergency program a permanent one even though the emergency is about to end

Queens Eagle

Permanent al fresco dining is now one step closer to becoming a reality in Queens and the rest of the city after the City Council approved a bill amending the city’s zoning laws Thursday.

While the council passed a text amendment that eliminates zoning restrictions for sidewalk cafes throughout the five boroughs, just how the city’s permanent outdoor dining program will ultimately look is still very much up for debate.

City legislators passed the text amendment 43 to 6, with one member abstaining. In Queens, Councilmembers James Gennaro and Robert Holden voted against the amendment, which only sets the table for a permanent outdoor dining program but doesn’t actually create one. All other Queens councilmembers voted in support of the amendment.

“This new local law will be kind of too broad in the sense that it’s one size fits all,” Gennaro told the Eagle. “Will it allow for the kind of granularity that you need to regulate something like this? My hunch is no, it won't.”

“I hope that I’m wrong,” he added. “Everyone has good intentions here but I’m wary.”

The appetite for the text amendment, which first made its way through community boards and borough boards throughout the city, has been mild – its strongest support has been in the City Council. Still, nearly every councilmember who spoke in support of the text amendment Thursday also expressed reservations.

“This program born of pandemic necessity has been a gift to our city in many ways. It was an economic lifeline and still is to many of our small businesses and it has now fundamentally changed how many dining establishments operate, and how New Yorkers utilize their public spaces,” said Brooklyn Councilmember Chi Ossé. “However, this program needs to ensure that our streets are for the people and not the rats. The rodent population growth has been undeniable and is clearly linked to outdoor dining.”

The sentiment was repeated by a number of councilmembers, including Queens Councilmember Linda Lee, who represents portions of Bayside Hills, Bellerose, Douglaston, Floral Park, Fresh Meadows, Glen Oaks, Hollis, Hollis Hills, Holliswood, Little Neck, New Hyde Park, Oakland Gardens and Queens Village. 

 

Prez FDNY Union: "Lives in danger" from the road sheds

 Dear Neighbor and Allied Groups,

Below, please watch the video of Andrew Ansboro, President of the Uniformed Firefighters Association, powerful statement on the road bed dining sheds. He clearly states "lives in danger".  You can read his statement here.

Tomorrow will be Mayor Adams' and City Council's first step to making Open Restaurant permanent. The torpedoing of this legislation is nothing shocking. The Hospitality Alliance and Open Plans New York have been lobbying hard for this to happen. But, tomorrow will be one of the only chances for the public to push back.

Please take to time to provide testimony tomorrow on Zoom or via written testimony (by Thurs 11:59 PM). The how-to-do-this is laid out below. Or, click here.    If the text amendment passes, our streets will forever be altered, and our quality of life upended. This is not hyperbolic. Department of Transportation will be granted enormous amounts of power and latitude to dictate the future of our streets. City Council is not only ceding our lands to one business sector and landlords but diminishing their checks and balances over DOT. The amendments (and there are quite a few scheduled) on the table tomorrow will allow DOT full rule-making authority with very little oversight. 

**Sign up anyway just in case (as opposed to Open Restaurant amendment)  with a backup plan to submit written testimony by the deadline (or do both). Tomorrow will be a long day of testimony. Over 100 people have registered so far, but we fear it is mostly Hospitality and Open Plans NY members and supporters. So help stack the deck our way!

Check this out too:

Today's Good Read (comment sections are pile-on from real estate, hospitality, and bike fanatics)
Potential for Permanent Crisis as Protests Continue over Open Restaurants

Mayor Adams literally broke bread with Andrew Rigie of the Hospitality Alliance on Sunday along with the two City Council co-chairs ahead of tomorrow's hearing.

Onward and thank you!

 

HOW TO TESTIFY OR SUBMIT WRITTEN TESTIMONY

Public testimony will begin immediately following the testimony of any invited experts and will be limited to two minutes per person to allow as many people as possible to present their views.

Members of the public can sign up to testify via Zoom Web or phone at least 24 hours in advance of the hearing. Translators are available, see sign-up ASAP. Please check your SPAM for a confirmation email.  *SKIP THE UPLOAD TESTIMONY QUESTION PORTAL OPEN NOW!

The hearing will be webcast live at https://council.nyc.gov/livestream. (See Virtual Room 1.) Submit written testimony to the Council by uploading it to https://council.nyc.gov/testify or by emailing it directly to testimony@council.nyc.gov. Deadline is 72 hours after the hearing has been adjourned. CLICK the arrow for the CHEAT SHEET that includes how to log-in and attend links, abstract of the legislation, and food for thought. https://bit.ly/cheat-sheet-textamendment-hearing

 

 

The blowback blight and anarchy from NYC's Open Restaurants Law

 

 

Impunity City

Since eating indoors was still a major risk of contagion for months on end last year, City Council and Mayor de Blasio addressed the existential threat the virus had on the dining and drinking industry and started the Open Restaurants initiative which lifted restrictions and eased regulations for restaurants to build sheds on the street curbs so patrons can come back and dine again outside of their establishments. Despite usurping parking spaces from residents, these businesses were able to recoup some losses and were able to make money again. The city also integrated this program with the Open Streets initiative to “re-imagine” public streets initially centered on cycling and pedestrian commuting by evolving them to plazas with the intent to foster community activity and keeping vehicular traffic out (both initiatives annoyingly prodded by bike zealot/car abolitionist lobby Transportation Alternatives). With the sheds on the asphalt, restaurants were able to extend their businesses by placing tables on the street, enabling to serve more customers. At the time it was logical and necessary.

Even though this was enacted for emergency purposes to keep businesses thriving in a still near dead city (with more prodding from agent of the city TransAlt weaponizing this program to banish cars)  the City Council Cronies and The Blaz decided to make restaurant outdoor sheds permanent, which was buoyed by a bill written by the State Senate and signed by Mario’s Son Governor Cuomo. Now even though restaurants are under the regulatory purview of the Department of Health, the Blaz left the responsibility of monitoring the street sheds under the Department Of Buildings. If this isn’t bizarre enough, the Department of Transportation seems are wholly left out of this even though the streets are officially under their purview. And as expected with the Blaz and the Council Cronies, they conjure these laws without considering the ramifications of them as some restaurants and even non-food related establishments opportunistically took advantage of the bureaucratic fugazi of  NYC’s Open Restaurants and Streets policy.

 

 

 

 

 

 

 

Communties are sick of the restaurant shanties

 

 

 CBS New York

 The city’s plan to make outdoor dining permanent is meeting a lot of resistance from local residents.

They say noise, rats and lack of space are just some of the problems, CBS2’s Aundrea Cline-Thomas reported Monday.

Residents in the West Village sounded off to the community board that is tasked with providing input on what will be the regulations for the new law. They said they want to support their local businesses, but when the pandemic is over the outdoor dining structures should be gone, too.

The structures have been a lifesaver for restaurants. They are so popular, the city is making the pandemic additions permanent.

But some residents say they have become a nuisance.

“These sheds are creating a vermin habitat like we’ve never seen before,” Lee Arntzen said.

“Noise comes with this and it shouldn’t be on this street, certainly not on a narrow residential street,” Stu Waldman said.

“It’s like a bandshell pointing at your bedroom. That’s the kind of noise,” Leslie Clark added.

Cellphone video shows how the neighborhood transforms, especially on the weekends — music blasting as large crowds dance outside, structures leaving little room to walk on the sidewalk, and the mounds of trash left behind that residents say attract rats.

“I have to walk on the subway grates and with my cane it makes me fearful,” Dorothy Green said.

In a statement, the mayor’s office said in part, “Outdoor dining saved 100,000 jobs. A stance against outdoor dining is a stance against this city’s recovery. It’s here to stay.”

That’s a sentiment city leaders tried to reinforce during Monday’s presentation to Community Board 2.

“The program has been a massive success and in April the City Council voted overwhelmingly in favor of the bill to make it permanent,” the Department of Transportation’s Judy Chang said to boos from the crowd.

NYC Plans To Make Eating & Drinking Road + Sidewalk Sheds Permanent

 

 

 Neighborhoods United

Dear Neighbor,
We wanted to make you aware that the Department of Transportation is initiating a public meeting at every Community Board in the city to push through the ZONING TEXT CHANGES that will allow Open Restaurants and Bars to become PERMANENT. 

In many areas,  the eating and drinking sheds have become severely problematic. As such, we are adamantly opposed to Outdoor Dining Sheds becoming a permanent fixture in NYC. 

We appreciate that these sheds were a lifeline for the hospitality industry during the pandemic and allowed residents a safe place to social distance. Since Covid restrictions have been lifted, we think it is time for the emergency dining sheds to be retired, and the sidewalk cafe process is reinstated regarding alfresco dining.

However, you feel about the Open Restaurants program, no public input or proper environmental impact study was commissioned. Instead, the city rammed the sheds through behind closed doors with little to no oversight, calling it an unbridled success with few issues to resolve. And agencies, like the Dept. of Transportation, testified two weeks ago that there was no increase in noise or any other quality of life or safety issues related to Open Dining Sheds. This is demonstratively false!

We now have the opportunity (and one last chance) to come out and voice our concerns.

WE URGE YOU TO SHOW UP! IT IS IMPORTANT TO HAVE BODIES AND VOICES IN THE ROOM!

Transportation, Public Safety, & Environment Committee
Tuesday, July 13 at 6:30 pm
Boys Club of New York
287 East 10th Street (at Avenue A)

*Please attend all four upcoming citywide community board meetings, if you can?  Click here for more info about when and where.

FYI:

• Citywide Text Amendment: Open Restaurants (zoning changes to facilitate outdoor dining 
• Click here for the text amendment application

We appreciate your consideration, and please don't hesitate to reach out with any questions.

Kind regards,

Diem Boyd, LES Dwellers
Tamara Daley, Orchard Street Block Association
Jan Lee,  The Chinatown Core
Stuart Zamsky, The East Fifth Street Block Association

 

 

Cuomo says the restaurant shanties can stay another year

NY Post

Andrew Cuomo approved a measure that allows restaurants to set up outdoor dining on city sidewalks and streets. Don Pollard/Office of Governor Andrew Cuomo

Gov. Andrew Cuomo on Wednesday rubber stamped a measure that temporarily extends a COVID-lockdown policy that permitted restaurants to set up shop on city sidewalks and streets — a pandemic practice that the Democrat said has served as “much-needed lifeline” to eateries.

The law, which takes effect immediately, extends for another year an executive order signed by the governor letting municipal spaces such as sidewalks and streets be used for outdoor dining, which has allowed for physical distancing — and for New Yorkers to enjoy meals without risking spreading COVID-19, which is more easily transmitted indoors.

“As we build New York back better than it was before, it’s important that we learn from the past and capitalize on those efforts that helped so many of New York’s small businesses survive amid the global pandemic,” said Cuomo in a statement about the bill signing. 

“By extending the much-needed lifeline that allowed restaurants to use outdoor public spaces for seating during the pandemic, New York is ensuring that these small businesses will be able to continue to use these spaces as they work to rebuild and support the revitalization of the Empire State.”

 

Restaurant shanties usurps nearly 9,000 curb spaces meant for cars

 

 NY Post

They have an appetite for obstruction!

Restaurants have gobbled up around 8,550 publicly-owned curbside parking spots for their outdoor seating set-ups since the start of the COVID-19 pandemic, according to city data.

Since last June, City Hall and the Department of Transportation have let eateries build the dining areas in the now-former spots outside their storefronts. At the time, indoor eating was restricted amid the pandemic, though Mayor de Blasio has declared that the program will be permanent and year-round.

Around 11,500 restaurants joined the program, of which about 5,700 have chosen to set up shop along the curb. That adds up to “roughly” 8,550 spots transformed — out of around 3 million total parking spots across the five boroughs, City Hall spokesman Mitch Schwartz said.

For the operators of TRU Astoria cafe on Ditmars Boulevard, the extra space was well worth the trade-off — as business has “more than doubled” since installing dining tables along the sidewalk and curb.

“Thank god we adjusted. The extended patio. The outdoor seating. Being able to use the street. It strengthened our brand,” said Yanni Stathakis, 48, operations director for Astoria Hospitality Group, which owns the eatery.

“People in all five boroughs are now coming to Astoria to eat here at Ditmars. It was good the city did this.”

But just across the road, Sal Barretta of Alba’s Pizza said the program has taken a bite out of his business.

“My customers are telling me they aren’t coming here because they can’t find parking,” said Barretta, who opted not to set up dining tables in the roadbed because he figured there was plenty of space inside.

“The sheds, I did not do it. Maybe I should have,” Baretta said. “But we don’t need to be on the street. We have 101 seats inside. These sheds, really dangerous. It’s a huge liability. It’s dirty. It’s dangerous. You’re breathing in all the exhaust from the cars.”

Baretta said the restaurant next door to his closed months ago — but its outdoor dining set-up continues to clog up potential parking spots.

“The place next door, six months out of business. Still these three parking spots are closed because he left these out in the street,” Baretta said. “It makes no sense, but with this mayor — there’s no enforcement, no oversight. I don’t know what they hell he’s doing.”