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.
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.
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.