Another NIMBY lawsuit targets New York City’s outdoor dining program

or a new case could end New York’s popular outdoor dining program.

The apartment, which names New York and New York state as defendants, was filed last week by about three dozen city residents in New York Supreme Court. The plaintiffs allege that the city’s continued operation of the Temporary Open Restaurant (TOR) program, which gave city restaurants a lifeline during the Covid pandemic by allowing them to create outdoor dining structures along the appropriate city streets and sidewalks where they operate , constitutes “unlawful encroachment on [the city’s] public sidewalks, streets[,] and roads on a no-longer-viable basis of a “public health emergency.”

The plaintiffs allege that the expansion of outdoor dining in the city under the TOR program has negatively affected their quality of life. Among the various “injuries and indignities” and other “substantial externalities,” the lawsuit alleges are “increased and excessive noise, traffic congestion, trash and uncontrolled rodent populations, blocking of sidewalks and roads, causing petitioners and others to cannot safely move the city’s streets and sidewalks and the reduction of parking on which some petitioners depend.”

In response to the new lawsuit, New York City Mayor Eric Adams, a proponent of expanded outdoor dining options, said program is essential to the city, but acknowledges that some changes may be needed. “[W]Whatever I can do to help our restaurant industry, which has dishwashers, waiters, busboys and maids, it’s an important industry and an indicator of our city,” Adams said. “So the lawsuit will play itself out. But I’m a fan of eating out.”

New York’s TOR program, authorized by state law, has been in effect since June 2020, when it was implemented by then-Mayor Bill de Blasio. It aimed to reduce Covid infections while helping restaurant owners and workers survive the one-two punch of the virus and its associated restrictions on indoor dining.

“The program was so successful that lawmakers decided to make it permanent,” I said explain in a column last fall in which I also noted that more than 12,000 city restaurants have benefited from the program.

But as I also explained, about two dozen Manhattanites Swedish the city last September over the TOR program. That complaint was replete with complaints from shopkeepers about noise, parking, traffic, rats and litter on the one hand and redundant objections on the other – including the complaints of one sad plaintiff who said in an affidavit that her street was once home of many small mom and pop stores, but this “[n]large corporations own a large number of the buildings.” Other sources offered similar criticisms of the case. As I also reported, Gothamist referred to many of the complaints found in the lawsuit as a “word cloud of common complaints” about life in the city.

In March, the court ruled against the city, the restaurant owners and their workers and customers. In his rolling, Judge Frank Nervo ruled that the city was required to conduct an environmental impact study of the TOR program, “including noise, traffic and parking, sanitation and neighborhood character.” Instead of conducting a study, the city issued an environmental assessment statement that found “no significant environmental impact from implementing a permanent feeding program.” In his decision, Judge Nervo determined that the city “failed to consider the probability [of] continuing environmental impacts’ from the TOR programme.

The complaint, filed last week, alleges that while other programs related to Covid and local mask and vaccine mandates have ended over the past year or so, the TOR program continues even though “[r]restaurants, bars[,] and New York taverns are once again allowed to use their internal capacity at pre-pandemic occupancy levels, and they are doing so across the city.”

Is there a way for restaurants and others to offer outdoor dining in buildings located along city streets and sidewalks? The complaint itself, which is largely based on the presumption that “no public health emergency exists and therefore no basis for TOR,” may suggest one. While New York may not have had an ongoing public health emergency when this TOR lawsuit was filed last week, exactly one day after it was filed, the city declared a new public health emergency — the one over outbreak from monkeypox. (A public health emergency exists, the city may argue in response to the complaint, and therefore has a prerequisite for TOR.)

A better way forward would see city officials address resident complaints—which, again, are the same ones city residents have had for generations about rats, trash, parking, and the like—while continuing to allow outdoor dining structures to be located on the sidewalks and streets.

“I have no doubt that some of these residents’ complaints are valid” I explained in my column about the lawsuit, which was filed last fall. “But outdoor dining didn’t cause most of these problems that precede the pandemic. New York City officials can and should do a better job of addressing residents’ concerns. But the city can and should also use existing mechanisms to deal with rats, noise, litter and other problems.”

Allowing more outdoor dining was a great idea pre-Covid. It still is. And I hope it survives the pandemic—in New York and beyond.

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