 |
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
