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

BY THE VILLAGE SUN | Updated Sept. 18, 6:40 p.m.: 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.

16 Comments

  1. F H M F H M September 18, 2022

    Cars do more to reduce quality of life in this city than all the dining sheds combined. Having said that I do agree that public input and review process should be put into place to determine what outdoor dining scheme is appropriate going forward. Hopefully a stay can be put into place until the spring to give restaurants to recoup more of their pandemic losses.

    • FTH FTH September 18, 2022

      What have cars to do with this? If you personally want to ban car parking, fine. But the bad does not have to be replaced with the worst. Have some sympathy for the beleaguered residents who have to endure the cacophony, garbage and general blight these sheds create.
      Incidentally, the “pandemic losses” suffered by the massive and politically connected restaurant industry pale in comparison to the losses suffered by many others.
      Clothing stores, book shops, grocery stores do not get the chance to privatize public space, right? Why should the restaurant industry — the industry that got billions of dollars in federal Covid assistance — get even more of a break at our expense?

    • Lance Axylotyl Lance Axylotyl September 19, 2022

      Nonsense, you haven’t a clue. Street-level Businesses other than restaurants are hurting due to the lack of available street parking caused by “Bike Lanes” and “Dining Sheds.”

    • le le September 21, 2022

      FHM,
      If cars are the concern, it should be noted that quite a few restaurant owners/managers actually drive in and park their cars on the street. Some use barriers to secure parking space by the sheds.

      As for restaurants recouping losses…
      Worth noting that lots of new restaurants opening, so presumably they think things are good; many restaurants with street sheds have more space outside (free) than inside; in much of Manhattan restaurants are owned by LLCs/wealthy investors — sadly not many “mom and pop” places left.

  2. M connor M connor September 18, 2022

    Last night was the most racket on our block in ages and we only have one outside seating area on our block. Early this morning neighbors were yelling for people to shut up — it was like 1 or 2 a.m. in the morning. We are back at pre-pandemic crowds at bars and resturants — the noise levels are ridiculous.

  3. Bryant Williamson Bryant Williamson September 18, 2022

    No doubt some of the outdoor structures are great: attractive, colorful, adding vibrancy and life to the street. Then there are the others: filthy, graffiti-covered, noisy, hideous eyesores that look like the Third World (see the South Village’s MacDougal Street). Obviously on some streets they are welcome and some streets they just don’t work. ALL restaurant owners should recognize that it is a privilege not a right to take the street and therefore you keep them clean and graffiti free (how hard is it to repaint?). We went from a restaurant having to go throw a maze of hoops to put out one table to everything and anything goes — both extremes shouldn’t be. We are still recovering from the damage to the city of the one-two punch of de Blasio and Covid. Let’s regulate but not overegulate. Cut the red tape (for all businesses) and work together. thanks

  4. Dianna Maeurer Dianna Maeurer September 18, 2022

    There are some street dining sheds that have larger capacity than their original interior occupancy designations. Establishments that have a wide enough storefront for sidewalk dining (assuming they maintain the 8′ from the curb rule), should not also have a Street Shed — choose one or the other. And too many businesses permanently bolted structures to their buildings — violating a restriction established from the beginning, which they blatantly ignored and which then went unenforced by DOT.
    If restaurants want to continue with Outdoor Dining, then they’ll have to play by any and all rules.

  5. Noah N Noah N September 18, 2022

    We need to decide whether sheds are for dinner or partying. If for dinner, as many think is the right purpose, then have the sheds close by 10, and remove any outdoor speakers, which are already illegal but not enforced against. We then issue graduated summons for after-hours and we’ll see them close by 10. Most people are bothered by the noise at night, which is unfair. Too many decision makers manage to avoid the issues that bother others. Write to the mayor and tell him to close the sheds at 10!

  6. JacDog JacDog September 19, 2022

    Dining sheds are rat hotels. They create additional congestion on sidewalks which already include bikes, pedestrians, wait staff and numerous tables. During rain storms they create flooding over the curb and on sidewalks. What was a boost to the hospitality industry during the pandemic has outlived its usefulness to the business community. Thanks to Mr. Sussman and those who have diligently campaigned to restore an element of quality of life, the Gov. has seen the light. Now the Mayor needs to come to terms with reality instead of truckling to real estate, hospitality and Transportation Alternatives’ self-serving desires.

  7. Leif Arntzen Leif Arntzen September 19, 2022

    NYCity’s public roadbed & sidewalk space belongs to & is paid for by everybody, residents, pedestrians, other small business & their customers, to use, access, & live/work in relative safety & quality of life conditions. This space was temporarily loaned during a global pandemic emergency in its epicenter of tragedy & death to a tiny percentile fraction of restaurant & bar owners to help them survive & feed NY’rs in relative safety. That practical & noble cause got perverted post-pandemic into a permanent market share & public space power play by a single industry & its powerfully enabled lobby that took the opportunity of a lifetime to continue long after the emergency need ended to permanently take what is not theirs to take. Is it not ok to do something outside your neighbors’ front doors & windows that greatly affects their quality of life & safety and then go on with it pretending it’s a good thing & all ok. It’s not ok. Time we started respecting each other. What are we waiting for? Do the right thing already. Take down the sheds, and start over, like everybody else has to do to move on from this horrible tragedy.

  8. JackDog JackDog September 19, 2022

    Candidate Zeldin came out against the sheds.

    • Nikki Nikki September 19, 2022

      Good!

  9. Suzan Mazur Suzan Mazur September 19, 2022

    Also, the 6th Precinct is aware of but will not shut down the ongoing and massively rowdy roof parties atop 29 7th Avenue South — the building that Rafele restaurant occupies at street level (between Morton and Bedford Streets). For the past two years, the Bring-Your-Own-Booze roof parties have been tormenting residents in the historic neighborhood into the wee hours of the morning, blasting music, sometimes with a light show.

    Even Rafele restaurant has complained, management telling me, “The police will do nothing, I wish you would write a story.”

    Owner of the building is Robert Chou, Roka LLC, telephone no. 516-353-1658. Managing agent: Chou Management, 408 8th Ave., Suite 206, tel. no.: 212-629-5890.

    https://patch.com/new-york/upper-east-side-nyc/ues-garden-dreams-dashed-empty-lot-sold-developer
    https://www.youtube.com/watch?v=trDzEl9UBz0

  10. Jim Jim September 19, 2022

    If the pandemic is over there’s zero justifiable reason to have these sheds. Do I get to double my business space forever at no charge due to a pandemic? No, I do not.

  11. Matt smith Matt smith September 28, 2022

    Land Grab by restaurant owners.
    Soho has been overtaken by greedy restaurant owners. Most dining sheds are significantly larger than their storefront. Bens Pizza on Spring Street is now selling ad space on the sides of their sheds for billboards. There is no order. What is going on our streets is nothing akin to “outdoor” dining.

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