BY LINCOLN ANDERSON | Updated Aug. 2, 10:20 p.m.: In a stunning ruling, a judge has declared that Mayor Adams cannot repeatedly keep issuing emergency executive orders to allow the city’s outdoor dining program — including thousands of roadway sheds — to continue.
On Tuesday, Justice Arlene Bluth of New York State Supreme Court, ruled that the mayor’s ongoing issuing of orders to suspend 26 different local laws to allow outdoor dining violates the state law that “limits the permissible triggers and length of any such mayoral decrees.” Along with her ruling, she ordered an injunction blocking Adams from further issuing the emergency order to allow the program.
(To read the judge’s decision, click here.)
Coincidentally, Bluth’s ruling comes just one day before the City Council is set to vote on legislation to make the pandemic-inspired program, known as Open Restaurants, permanent.
The citywide ad hoc group CUEUP (Coalition United for Equitable Urban Policy) hailed the strong verdict as “unambiguous” — adding that it “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.
“As a result of the court’s ruling,” CUEUP said, in a press release, “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.”
The ruling concerns a community lawsuit filed last July that argued there is no longer a legal emergency justification for Open Restaurants now that the pandemic has waned. The lawsuit was filed against Governor Hochul, Mayor Adams and New York City. After the suit was lodged, however, Hochul promptly ceased issuing an emergency executive order allowing outdoor dining and, in return, was dropped from the lawsuit. However, unlike Hochul, Adams merely doubled down — retooling the language of his ongoing executive order, changing it to say that, rather than health issues, outdoor dining is now critically needed to address emergency economic reasons, such as unemployment and high rent.
Between Adams and former Mayor de Blasio, City Hall has issued 226 emergency executive orders — one every five days — to allow the roadway dining sheds program to continue.
After Adams tweaked the wording of his emergency order at the end of June, the plaintiffs returned to court on July 5 to file an “amended petition” — basically updating their lawsuit to respond to the mayor’s maneuver.
Bluth did not buy what she dubbed the city’s new “general economic rationale” for continuing the Open Restaurants program, noting, for example, that unemployment is only slightly higher than pre-pandemic, and that factors other than COVID explain why office occupancy rate and subway ridership numbers are still down.
“There is no dispute that nearly all of the COVID-19 related restrictions, including those involving social distancing and indoor masks, have been lifted,” she wrote. “Accordingly, the Court must conclude that there is no longer an emergency that could justify the suspension of local laws to justify outdoor dining. Clearly, the executive order now in effect does not purport to rely on the dangers or harms from the virus itself. Instead, it focuses on the recovery process from COVID-19. But that is simply too vague a justification to permit an executive to routinely suspend the laws for over three years.
“To be clear, the Court is not minimizing or downplaying the long-term economic effects of the pandemic,” Bluth said. “There is no doubt that New York City and the entire country will be dealing with the negative ramifications of COVID-19 for a long time. But the question here is the nature of the claimed emergency. The executive order points to a slightly higher unemployment rate (according to the order, the unemployment rate is currently 1.1% higher in New York City than it was before the pandemic began in February 2020). That does not justify the imposition of emergency powers to suspend local laws… .”
Bluth added that the city, in its response, did not even “show that the restaurant industry is still struggling to the point where emergency action is required.”
The city typically tosses out the conveniently round figure of 100,000 for the number of jobs allegedly saved by Open Restaurants. But Leslie Clark, a CUEUP spokesperson, said while the media parrot this figure, they don’t make efforts to verify it.
“De Blasio threw that number out in September 2020 and every journalist repeats it,” she said. “They use two things: ‘lifeline’ and ‘100,000 jobs.’ How do you know it’s true?”
Also on jobs, Bluth continued that, for example, while the advent of working from home has significantly reshaped the city, that doesn’t equal an emergency.
“That the occupancy rate of commercial offices is lower and that fewer people are taking the subway does not, standing alone, constitute an emergency,” she wrote. “Many factors that have nothing to do with an ‘emergency’ on these issues, chief among them being the rise of remote work. And the Court observes that these two asserted reasons have only a tenuous connection to a restaurant’s revenues. Even if people are working remotely, they can still go to (and order from) a local restaurant. That is not to say that fewer commuters into New York City (a possible reason for these numbers) will have no effect on the success of a bar or restaurant. The Court merely finds that there are many overlapping factors relating to the lower occupancy rate for commercial properties and lower subway ridership and the executive order does not cite anything that remotely constitutes an emergency. Moreover, the severity of these cited factors does not approach an emergency; for instance, the unemployment level is not so high that it invokes concerns about a recession or depression.”
The city also argued, in its response to the suit, that the plaintiffs lack “standing” to challenge the mayor’s ability to issue the executive orders. The 34 individual plaintiffs — all local residents — hail from 15 neighborhoods across the city, including the West Village, East Village, South Village, Lower East Side, Little Italy, Flatiron, Hell’s Kitchen, Bay Ridge, Williamsburg, Washington Heights, Bushwick, Inwood, Douglaston, Flushing, Jackson Heights, Upper West Side and Mott Haven.
However, Bluth countered that the local residents absolutely have standing to challenge the sweeping and transformative policy that impacts the city’s very streetscape and its use.
“The local laws suspended by the executive order require that certain areas, like sidewalks and streets, are public areas and not places for private establishments to run their businesses,” Bluth declared. “Part of the rationale for these laws is to ensure that all city residents and visitors including pedestrians, cyclists and vehicles, can traverse these neighborhoods in a safe way
“The Court questions who would have standing in this case if not petitioners? Petitioners contend they are New York City residents who want a court to address the efficacy of a governmental action that purportedly adversely affects not just them, but every New Yorker. That is, after all, one purpose of the courts — to allow residents to seek judicial review of the actions of another branch of government.”
According to the city, there have been more than 13,000 roadway dining sheds across the city — with around 20 percent of them clustered in nightlife-heavy Downtown Manhattan.
In addition, the Adams administration countered that the judiciary should have zero review power over policy matters such as this and that government should have carte blanche to issue executive orders and implement programs like Open Restaurants.
However, Bluth fired back, “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.”
In short, Bluth wrote, “The Court finds that this executive order fails to offer a rational justification for suspending local laws in order 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 city also contended, in arguing against the lawsuit, that the plaintiffs have not suffered “irreparable injury” due to the contentious program.
Yet, Bluth disagreed once again, saying that the plaintiffs “will continue to suffer from the loss of public use of the sidewalks and other public areas covered under the executive order without the issuance of an injunction. Petitioners insist there has been increased prevalence of vermin, trash, nuisance from noise, as well as harmful effects on businesses not entitled to use this outdoor space. These allegations establish irreparable harm.”
In a statement to The Village Sun, a mayoral spokesperson said, “The temporary Open Restaurants program has saved 100,000 jobs, enlivened neighborhoods, and provided a lifeline for small businesses since COVID-19 hit New York City. Millions of New Yorkers and visitors to our city have enjoyed the outdoor dining experience, and the judge’s order makes clear that the time to pass a permanent program is now. Outdoor dining is part of the fabric of our city, and it is here to stay.”
According to the city, the judge’s order does not require the removal of the existing outdoor dining setups under the temporary Open Restaurants program. However, apparently in line with the judge’s injunction, D.O.T. has stopped processing applications for the temporary program — for which there were 60 new requests last month alone. The city intends to file a notice of appeal of the court order.
Attorney Michael Sussman, who is representing the plaintiffs, said, “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 [by the mayor and previously by the governor]. 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,” Sussman asserted. “We demand that the City Council adhere 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,” added Leif Arntzen, a Greenwich Village member of CUEUP. “The City Council has one choice: Do the right thing, or we will see them in court.”
“Accountability is paramount in the governance of our city,” said CUEUP spokesperson Clark. “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.”
As for the City Council’s anticipated vote tomorrow to codify Open Restaurants, Clark told The Village Sun that, should the Council approve the legislation, the plaintiffs would immediately go back to court to take up their first lawsuit. Filed in October 2021, that suit argued that the city must do a proper, full-scale environmental study, or E.I.S., for Open Restaurants. The plaintiffs won that case in State Supreme Court in March 2022, but the city appealed. In October 2022, an Appellate Court panel ruled that the case was “not ripe” since the permanent law had not been passed yet — though the court notably did not rule against the lawsuit’s merits.
“If the city passes this [law on permanent Open Restaurants], we’ll be back in court on Friday on the first lawsuit,” Clark assured. “The necessity of doing an environmental impact study remains open. The Appellate Division did not rule against that.
“Twice now a State Supreme Court has said to the petitioners, ‘You’re right,'” she noted. “While we are jubilant [over the latest ruling], we’re also frustrated. We keep winning and nothing changes. But it doesn’t stop us. We have really been dogged about this. These are our neighborhoods. We are not going to give up on this.”
Clark said it was expected that the city would appeal and request that the stay on the issuing of Adams’s emergency order be lifted.
However, she said, as a result of Bluth’s ruling, “Right now, temporary Open Restaurants are illegal.”
Hooray for this ruling! Outdoor dining & sheds are the cause of the city’s rat problem. Once dining returns indoors, the rat czar will be out of a job!
Mayor Adams will say something impulsive as usual and instead put an emergency order for these sheds to house migrants, probably.
Please take note: There was never an E.I.S. (Environmental Impact Study) done for “Vision Zero.” Another telling oversight was the neglect of establishing a responsible bike culture prior to and during the Bloomberg administration.
The chickens have come home to roost.
The diseased rat living under the restaurant shed across the street is sad, whereas my family is happy!
And to think I thought everyone was ordering delivery, so who exactly are dining in these blighted restaurant sheds?
Next on tap is to rectify the egregious hypocrisy of Vision Zero and the zealots of Transportation Alternatives and Place Making — proponents of utilizing public space for private purposes. The pandemic and the need for temporary favelas was simply a chance to further reduce public and parking space. The collateral damages succinctly cited above were merely — in their view — inconsequential indiscretions: The cost of doing business in the cause of self-righteous hubris and arrogance must prevail. Also, now that New York City has the worst congestion in the nation, these self-styled great men pursue
congestion pricing as the solution to the problem they caused. Oh, Mayor Adams, be careful of the company you keep. Good work, Mr. Sussman.
Excellent! A judge with intelligence and integrity!!!!
A win for the community!!!!!
Gary Tomei
Increasingly, this city via its Mayor has overruled local LAWS and sought to rule by fiat. He calls that the City of Yes. I call that the City of Autocracy. While doing so, he and the restaurant lobby have taken over our streets and pedestrian public sidewalks, exacerbated a rat explosion, created an environment for apartment dwellers that robs them of their right to quiet enjoyment, and disrupted both traffic and street cleaning. Restaurants have had free space for years now and have had it at the expense of the communities they are in. Certainly, one can see that restaurants are back up and running and have been helped by a very active food-delivery service, too. This Judge and those who brought this lawsuit are both within their rights to represent the rights of the citizens and to reassert the laws which exist for a reason! Do not try to usurp the public realm for private profit and ruin the quality of life for the rest of us. Bravo to this Judge for her clear-eyed treatment of the facts and the law.
This is a disaster. She clearly doesn’t frequent restaurants & probably needs a place to park he fossil-fuel burner. The restaurant industry employs 10% of New Yorkers. Outdoor dining makes our neighborhood safer & to blatantly call outdoor dining illegal is hubris. Big developers took away commercial overlay in Brooklyn to declare blight & tear down communities. We lost half our restaurants. Nobody wants ugly sheds — many sheds do a great job. Outdoor roadside & sidewalk dining is a classic joy of all major cities.
If you had the least bit of honesty in your bones, Ms. Janssen, you would have prefaced your self-serving comment with the fact that you yourself are the owner of a fancy French restaurant in gentrifying Brooklyn.
Also, talking about honesty, please supply data to support your ludicrous claim that 10% of New Yorkers are employed in the restaurant industry.
Charlotta,
I don’t drive — and am completely against restaurant shacks and against any help for the restaurant sector.
It should be noted that the City has done everything for restaurants — but the City has done nothing to help retail, which is being destroyed by high rent, ecommerce and crime. That is completely unfair.
Plus there are already tons of restaurants/food places. In fact NYC is saturated with restaurants — they are cannibalizing each other.
For example, take FiDi — there are multiple restaurants in and around the Seaport. On the entire length of Fulton Street every storefront is a food place, save two marijuana stores and a hardware store. There are restaurants/food places on all the surrounding streets, like John, William, etc. On Beekman Street there are 3 coffee places within 2 blocks.
Ironic you’d reference “fossil fuel burner” as many restaurant owners do drive in and park.
Not to mention that restaurants depend on supplies delivered by vehicle.
Likely better for the climate if people stayed at home and prepared their own meals
Thank you, Charlotta. Sure, some sheds aren’t as pretty as others but the successful ones make the street so much livelier and more civilized. I rarely eat inside anymore. And, I know, as if parking private cars on the street is a fair use of our public space?! In my neighborhood, 85% of households are car-free. That means a significantly greater percentage of us dine out than drive. Think about who is being served.
Again, the mendacity of the few who support these rat shacks is exposed.
First:
Ms.Liff supports these sheds.
Yet, like the other few who have expressed support for them on this Web site, there is not a single one of these shacks for blocks along Fifth Avenue, where Liff lives on the upper floor of a tony building and not on the second floor of a tenement on a side street where noise until midnight invades and ruins people’s lives.
Hypocrite much?
Second:
Liff conveniently fails to reveal that she is the director of StreetsPAC, a lobbying group whose aim is to mitigate cars’ usage but, in its obsessive quest to rid the city of cars, sides with the restaurant lobby to the detriment of her fellow residents.
Some sympathy on her part for her neighbors would be nice. But, sadly, her political agenda trumps reason and kindness and neighborliness.
wow, pretty egregious to leave this out and pose as an avg citizen who likes the sheds….
From a longtime Greenwich Village resident: the best outdoor dining sheds (Jewish in-joke: “covid sukkot”) are beautiful and festive, expand the capacity of restaurants, and indeed make the neighborhood safer at night.
Thanks for the excellent and accurate coverage of this important decision.
Arlene Bluth – my hero!
The City has done EVERYTHING for restaurants and bars and ZERO for retail shops!
Retail is suffering from high rent, from ecommerce and shoplifting.
Also restaurant sheds HURT local shops!
Restaurant sheds create a shantytown look, block store visibility, contribute to the incursion of rats, make it hard for truck delivery, and contribute to landlords raising rents.
They’ve done even less for theaters, concert venues and other event spaces.
Hooray!
That goes for me, too. This was a very well-reasoned decision based on the law and the facts.
Good news that a Judge has ordered NYC Mayor Adams to cease and desist in his constant (and absurd) declarations of an emergency that have allowed unsafe and rat-prone street dining in sheds to go indefinitely.