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Residents sue to block Open Restaurants sheds from becoming permanent

BY LINCOLN ANDERSON | Updated Oct. 20, 1 p.m.: You had to see this one coming.

A group of nearly two dozen concerned residents, most of them from bar- and restaurant-saturated Downtown Manhattan, are suing to block Mayor de Blasio’s Open Restaurants program from being made permanent.

The plaintiffs charge that the environmental assessment statement (E.A.S.) for the scheme is sorely deficient, or as they put it, “an arbitrary, flawed determination…that the proposed Permanent Open Restaurant program would have no significant environmental impacts citywide.”

The plaintiffs hail mainly from Greenwich Village, the East Village and Lower East Side, but also Chelsea, Hell’s Kitchen and Williamsburg, Brooklyn.

The lawsuit, known as an Article 78 because it challenges a city decision, is being filed in New York State Supreme Court. Representing the group is civil-rights attorney Michael H. Sussman.

The plaintiffs include Kathryn Arntzen, president of the Central Village Block Association; Diem Boyd of the LES Dwellers; Leslie Clark of West Village Residents Association; Pauline Augustine; Marjorie Dienstag; Mary Ann Pizza Dennis; Robin Felsher; Deborah Gonzalez; Dorothy Green; Ellen Koenigsberg; Melissa Krawitz; Shannon Phipps; Kate Puls; Larry Roberts; Marcell Rocha; Elizabeth Sabo; Michael Simon; Gordon M. Stanley; Steven Thaler; Stuart Waldman; Patrick Walsh, and Judith Zaborowski.

Some of the plaintiffs are members of the ad-hoc group Coalition United for Equitable Urban Policy NYC a.k.a. CUEUP. Its organizational team draws from South Village Neighbors, West Village Residents Association and Central Village Block Association. However, its member groups hail from all corners of Downtown Manhattan, from the Bedford-Downing St. Block Association, E. Fifth St. Block Association and Soho Alliance to the Chinatown Core Block Association and the London Terrace Residents in Chelsea, plus as far away as Washington Heights/Inwood and Sunnyside Gardens in Queens.

Lots of adverse impacts

According to the new lawsuit, many residents have suffered increased blight, noise, trash and congestion — as well as rodents — since the Open Restaurants program was launched 16 months ago during the pandemic. The group says the city’s finding that the program has “no adverse impacts” belies the reality on the ground, and needs further review as the city rushes toward making the program permanent.

“I am honored to represent New Yorkers fighting to restore the city to normalcy,” attorney Sussman said. “Our sidewalks and streets belong to all the people, not those who own or rent bars or restaurants. People have a right to a quality of life. Making this program permanent without accountability would radically diminish the experience of many hard-working residents, sacrificing them and their neighborhoods. The city can do much better. Had the city conducted proper environmental reviews, not negated the experience of the last 16 months, the proposed expansion of the Open Restaurants program would be placed on infinite hold.”

On the evening of Sept. 27, a garbage truck dragged the outdoor shed of Bar Six, at 13th Street and Sixth Avenue — with a diner inside of it — for 10 feet. (Photo by Marguerite Martin)

“You have only to look around our neighborhoods to see the immediate effects of the Open Restaurants program on safety, health, sanitation and environmental issues,” said Micki McGee, a resident of the South Village and one of the plaintiffs. “With 11,950 restaurants participating in the program, that’s a 110-acre giveaway of public land. We need a real conversation on the use of our public space, not a set-aside for one industry.”

Sixteen months is enough

During the pandemic, residents rallied around workers and business owners in supporting the Open Restaurants program. But the group says, after nearly a year and a half of the temporary emergency program, it’s clear that the permanent program would be a disaster for city residents.

“Hell Square on the Lower East Side got a whole lot hotter,” said Diem Boyd, a petitioner and the founder the LES Dwellers, a grassroots residents advocacy group. “The living conditions here are a warning shot for communities across the city about what happens to a neighborhood when bars, restaurants and landlords are favored over residents’ quality of life.”

The plaintiffs declare that at the heart of their fight is “the occupation of New York City’s public spaces and the right to quality of life.”

“I’ve lived in my house for 33 years,” said plaintiff Stuart Waldman, a resident of Bedford St. in the West Village. “I’m 80 years old. I always assumed, health permitting, I’d live out my life in my home. The city may make that impossible.”

The lawsuit includes summaries of each plaintiff’s negative experiences with Open Restaurants.

One plaintiff, a senior woman who hobbles about with a cane, says there is hardly any room on the sidewalk anymore for her to walk safely due to the expansion of outdoor restaurant seating — and that she sometimes is forced to inch along over subway grates, fearing that her cane will get caught in them.

Another plaintiff, the mother of a 17-year-old autistic son, says the boy is being forced to abandon his usual walking routes due to all the new dining sheds, and that all the zigzagging he must now do on the street — plus the increased crowds and noise — is making him disoriented.

Cigarette smoke, amplified music fill the air

Other plaintiffs complain of an increase in outdoor smoking under their windows, as well as amplified music — both live musicians and prerecorded music. Some of the petitioners say they are resorting to constantly running their TVs or air conditioners just to try to drown out the outside din.

Loss of curbside access, residential parking

Older residents say the explosion of outdoor dining sheds has robbed them of curbside access that allowed them to be picked up and droped off conveniently by vehicles and that it’s also now harder to get their medications dropped off.

“Many of the residents are elderly,” the suit states. “The loss of on-street parking has resulted in their inability to park close to their residences. Vehicles delivering food, pharmaceuticals, etc., to the residents now must spend time hunting for a parking space or resort to double-parking.

“Such double-parking results in traffic backing up on the narrow streets; exhaust fumes being emitted; emergency vehicles —
including ambulances and fire trucks, when needed, being delayed. These effects are significant.”

Since Open Restaurants started, Deborah Gonzalez, who lives in a multiracial Section 8 building at Stanton and Chrystie Streets on the Lower East Side, has noticed “a huge increase in noise, particularly at hours when she and her family attempt to sleep, a significant uptick in the rodent population, garbage, no street cleaning and an increased number of homeless people looking for places to sleep,” according to the lawsuit.

An outdoor dining shed on First Ave. in the East Village that requires waiters to cross an active bike lane, on which riders sometimes go the wrong direction, as seen above. (Photo by The Village Sun)

Loss of public space on her own block

“Due to the proliferation of sheds, Petitioner Gonzalez has lost space to sit, talk or congregate with neighbors on her own block,” the suit states. “While she used to be able to look down her block and see from one end to the other, now she can only see the sheds and sidewalk seating.”

On top of all that, someone set one of the sheds on Gonzalez’s block on fire.

Patrick Walsh, a 62-year-old teacher living on the Lower East Side, has to get up at 5:15 a.m. and “needs to be fresh to do his job,” the suit states, adding, “However, since implementation of the temporary Open Restaurant program, this has been nigh impossible as the constant barrage of noise has kept him up to four or five o’clock in the morning.”

Also being deprived of sleep is Walsh’s 16-year-old daughter due to “the outrageous noise that surrounds their building on three sides.”

Sheds deter walk-in shoppers

Another plaintiff, Ellen Koenigsberg, 62, lives on Rivington Street with her 13-year-old daughter whom she adopted from Vietnam. She operates a tiny vintage clothing store on Ludlow Street, around the corner from her apartment.

“Almost every restaurant, bar, club, cafe and hole-in-the-wall fast-food place along Ludlow and Rivington has put out tables on the sidewalk or built sheds or both,” the lawsuit states. “As a small business owner, Petitioner Koenigsberg was not given the same outdoor real estate to build a pop-up store in the middle of the street during a global pandemic.

“Now that her neighborhood has become a shed shanty town, Petitioner Koenigsberg’s shop is hidden between two plywood sheds, one with dirty astroturf for the floor and the other an ugly box covered in graffiti.

“Potential patrons must walk through tables, chairs and crowds of people to try to get to her shop,” the suit states. “Patrons also must climb over heaps of garbage placed on the sidewalk in front of her business because sheds neighboring her store are blocking garbage pickup.

“In the morning in front of her shop, Petitioner Koenigsberg observes cigarette butts scattered everywhere. Her clothes and accessories smell like pot and cigarettes. … And oftentimes, there is vomit and urine in the doorway, which is, not easy for her to stomach. … The people coming to this petitioner’s neighborhood are arriving to party and hang out on the street.”

Noise is constant, maddening

The lawsuit further describes how Stuart Waldman has been taking decibel readings of the clamor outside his windows, showing how it ratchets up from noisy weeknights to the even-noisier weekends:

“On weeknights, the decibel meter on Petitioner Waldman’s smart phone hovers in the mid-seventies, a number the meter lists as equivalent to vacuum cleaner inside his home.

“On weekends, the decibel meter on Petitioner Waldman’s smartphone routinely reaches 85, or the equivalent of a blender in a small kitchen.

“However, while a vacuum cleaner operates for perhaps fifteen minutes, and a blender for a minute or two, the noise beneath Petitioner Waldman’s window is a steady, maddening presence that goes on for hours into the night, causing him to feel like a prisoner in his own home and bringing on anxiety, depression and pure fury.”

The lawsuit says the environmental assessment statement for making Open Restaurants permanent was flawed, with required sections not filled out. For example, the E.A.S. says some existing laws will be “suspended and repealed” for the program, but then does not explain what they are.

The plaintiffs will hold a press conference on Thurs., Oct 21, at 11 a.m., at Ludlow and Rivington Streets.

17 Comments

  1. LES3025 LES3025 October 20, 2021

    Most of these people’s complaints kind of fall apart if you just remember that before the sheds the space was used as parking. Wild that these people care about parking so much to sue over it, but different people have different priorities I guess.

    • JS JS October 21, 2021

      Different priorities would qualify as a quality of life in our neighborhoods that is being destroyed by these sheds day and night.

    • Alexa Etone Alexa Etone October 22, 2021

      A parked car will not keep you up at all hours of the night, or throw up on your front door, or throw garbage on the sidewalk. Maybe you like that but other people need to sleep to get to work to pay the bills.

  2. Carol from East 5th Street Carol from East 5th Street October 20, 2021

    At last! So thankful to all those who have organized and protested and have initiated this lawsuit. After endless community board meetings and testimonies at government agencies that never resulted in any action by the city, finally a concrete action that can’t be ignored.

  3. Carol from East 5th Street Carol from East 5th Street October 20, 2021

    To LES3025: Parked cars do not make noise or blast loud music every night until 4 a.m. so that people who live around them cannot sleep. They also do not create huge amounts of garbage that attracts rats or provide sleeping quarters for the homeless who leave trash and human waste in them. And quite frankly most of the shacks are eyesores. This is the reason they are suing.

    BTW only 22% of Manhattan residents have cars.

    • LES3025 LES3025 October 20, 2021

      On noise, parked cars don’t make noise and blast music, but cars circling the block for parking certainly do. Anyways, most outdoor dining does not stay open until 4 a.m., and those that do can and should be addressed through regulation and enforcement. There’s no need to stop the whole program. Unless of course what you actually want is your parking spot back.

      On garbage, sheds don’t “create” any garbage. Restaurants create the garbage and did before the sheds. Restaurant patronage hasn’t gotten back to prepandemic levels even with outdoor dining, so there’s no basis to believe there is any more garbage than there used to be (the city is just worse at picking it up). And the sheds are previously where cars would have been parked, so they aren’t taking up space that used to be used for trash collection. The city’s handling of trash is shameful, but it’s a different issue from the sheds.

      On the homeless, your lack of empathy is offensive. We shouldn’t get rid of the sheds because vulnerable people are using them for shelter. We should do better about getting those people better services.

      On sheds being eyesores, they were erected as temporary structures. Make the program permanent and business will invest in something nicer. Plenty already have.

      And I know only a small minority of Manhattan residents have cars. That’s why I think we should have a policy that benefits a broader swath of people (diners, service workers, business owners, etc.), rather than parking spaces that just benefit car owners (who are far wealthier than non-car owners, on average). The people suing think we should favor car owners. I think that is wrong.

      • SleeplessInNCY SleeplessInNCY October 20, 2021

        Sheds or no sheds, cars are still circling the block looking for parking. The music they play goes away when they are out of earshot. Many of the sheds play music loud and constantly. A constant of 85 decibels for hours is unhealthy and can lead to hearing loss. The sheds are larger than cars and are in many areas butted up against each other; the Dept. of Sanitation can’t get between them as they can with cars. Yes, not all restaurants are open until 4 a.m., but many are. After the restaurants close, people take over the sheds and party in them. I personally would never eat in the shed by my apartment because of the things I see in there late night. They leave their table and chairs unsecured. I would not eat off those tables.
        Garbage. There is more garbage. With the addition of sheds and sidewalk dining, restaurants are serving more customers than they were prepandemic. Some twice as many. That generates more garbage.

        Having said that, I don’t own a car and would love less cars in the city. I also think there are solutions to these problems — BUT more rules need more enforcement, and that is not something that happens in this city. The rules these restaurants and bars have now aren’t being enforced.

        Why should this space only benefit restaurants? There are other businesses and residents who should have a say in this. The storefront I live over is now empty. The business that was there went under because the restaurant next door took over the sidewalk and street in front of it. No one will rent it. The street in front used to have bicycle racks. It was not used for parking. All the bicycle racks on my block are not usable. Restaurants put a table there, or a sign with their menu.

        I lost my job due to no sleep. Can’t maintain a job either. I can’t remember the last time I slept more than three hours. I am not part of this suit. But I live the same nightmare they do, to the point where I have and still think about suicide. No one will listen to us.

        • LES3025 LES3025 October 20, 2021

          I’m sorry to hear that, truly, about your health and your job. I hope you can get some help.

          Honest question, though, and I really do not mean this in a trolling way, but why don’t you move? If the neighborhood you live in is destroying your life like this, why don’t you move to a different one?

          • JS JS October 21, 2021

            It isn’t just one neighborhood, it’s many neighborhoods that have to endure the noise and intrusivenes of these sheds, which not only happens at night but also during the day depriving residents of a decent quality of life. You are talking about whole communities that are suffering. Permanently giving away public land to restaurants, i.e. the sidewalks and streets is indefensible. What about the other small businesses that have been suffering from the pandemic? Don’t they deserve the same rights as restaurants? Telling people to move because their neighborhood has become a living hell is no solution and incredibly calloused. The suffering residents have rights also. There is no reason to make these sheds permanent once the pandemic has abated.

          • LES3025 LES3025 October 21, 2021

            To JS, I am sympathetic to the original poster but to you I’m not. If you can’t handle the “noise and intrusiveness” of the sheds during the day then Manhattan is not the place for you and you should leave. The overwhelming majority of people support this, so don’t act like you’re speaking for “whole communities,” unless you mean your insular community of NIMBYs.

            That silly talking about about “giving away public land to restaurants” is so tired. The space for the sheds used to be (generally free) parking for private cars. You and your people don’t complain about that giveaway of public land. Most of these groups suing aren’t allies for safe streets; they’re not out there trying to reclaim streets for pedestrians and transit. The bad faith disgusts me.

      • Alexa Etone Alexa Etone October 22, 2021

        That is so wonderful that you are very worried about the homeless. How many are you taking into your home?

  4. Carol from East 5th Street Carol from East 5th Street October 20, 2021

    I’ll be brief:
    *Cars circling the block looking for parking spaces make noise? You mean while they drag race around and rev the engines of their hot rods?
    *Actually closing time for outdoor spaces is 11:30 p.m. but there is NO ONE addressing closing time transgressions. See what kind of response you get from calling 311.
    *I guess you can blame the increased trash and rats on something else, but coincidence? I think not.
    *I am very active in community service. What have you done lately for your less-fortunate neighbors? Fact is the homeless and also drug addicts take over these spaces at night.
    *I can assure you the people suing are not in the least concerned about parking spaces. They are concerned about quality of life.
    *You seem obsessed about cars.

    • Johnny Doe Johnny Doe October 20, 2021

      It’s because most of the people clamoring for “OpenStreets” and “Open Restaurants” consider themselves soldiers in “The War on Cars” and they see this as one of their great possible victories.

      Clowns.

      • LES3025 LES3025 October 20, 2021

        that’s right

  5. Lisa Lisa October 22, 2021

    To LES3025:
    Real New Yorker here (not a transplant) – I don’t even know how to drive.
    🙂
    Am totally against Restaurant Street Sheds for multiple reasons.
    Garbage and rats.
    No street visibility for pedestrians — especially scary at night.
    Restaurants have also expanded on sidewalks, so literally no place to walk (and wait staff dashing back and forth).
    Screws small stores — pedestrians less likely to walk by.
    It is free space for private restaurants, most of which are LLCs and chains — not mom and pops.
    In other parts of Manhattan, chains are quickly expanding this free space.
    Bus lanes are impacted on some avenues.
    Less space for service and delivery trucks, so even more congestion.
    No accountability for vacant Restaurant Sheds.
    Makes the divide between the haves and have-nots really visible — rich yuppies get to hang out while everyone else schleps by.
    Continues gentrification and transformation of Manhattan into a playground for the fabulous — no longer a place for real people to live.
    Subverts land-use regulation, which is already weak.

    • LES3025 LES3025 October 22, 2021

      I’ve responded to some of these elsewhere here (trash, rats, etc.) but you’ve raised some new ones that are also very silly.

      “Screws small stores — pedestrians less likely to walk by.” Small stores live on foot traffic and restaurants bring foot traffic. Restaurant patronage is still down compared to pre-pandemic; it would be worse for small stores if even fewer people went to restaurants without the sheds and Open Restaurants program.

      “It is free space for private restaurants, most of which are LLCs and chains — not mom and pops.” Basically all restaurants are LLCs. It’s not because they’re big businesses — they aren’t. It’s because LLC means the owner isn’t personally liable on the lease, which is the only anyone other than the super-wealthy or a corporation could ever run a restaurant. There aren’t many chains where I live in the LES. The ones there are, like the fast-food restaurants on Delancey, aren’t using outdoor space (and FWIW, the Popeye’s is a franchise and so is a small local business).

      “Bus lanes are impacted on some avenues.” This is false. There aren’t sheds in bus lanes anywhere. Many groups that actually care about bus service, like TransAlt, support Open Restaurants. If you actually cared about bus service there are many, many more significant targets than sheds.

      “Less space for service and delivery trucks, so even more congestion.” This is also false. Before, the same spaces were filled with private parked cars. No net change in space. If you want to solve this problem, advocate removing existing parking to create dedicated loading zones.

      “Makes the divide between the haves and have-nots really visible — rich yuppies get to hang out while everyone else schleps by.” I guess you like it when the class divide is hidden so you can pretend it doesn’t exist? Anyways, I eat outside in Chinatown all the time. I can assure you it’s not all yuppies.

      “Subverts land-use regulation, which is already weak.” Tell me you don’t know anything about land use without TELLING ME you don’t know anything about land use. Land-use regulation is way too strong and creates too many choke points. Building a single apartment building on a parking lot at 250 Water Street is taking years and countless approvals and public hearings. A handful of local NIMBYs have so far been successful in preventing the city from building 100% affordable housing on a lot the city owns on Elizabeth Street. The ULURP process gives each councilmember an effective veto over any land-use decision in their district. Maybe you like it that way, but you can’t say with a straight face that it’s weak.

      • Lisa Lisa October 23, 2021

        Hi again, LES3025
        Again — real New Yorker here, 4th generation, don’t know how to drive.
        My miscellaneous comments in the event you are interested?…

        Actually there are sheds right in lanes on some avenues impacting buses. For example, Amsterdam Avenue, Third Avenue and others.

        Yes, it is getting pretty sickening to see affluent yuppie folks outside enjoying themselves and oblivious — while the Amazon delivery workers are walking by schlepping heavy loads, the elderly are trying to walk on the sidewalks with their little carts, and there are homeless people right there in need.

        Open Streets/Open Restaurants has closed segments of avenues on weekends — for example Columbus and Amsterdam — which means buses are rerouted. This is a huge issue for bus riders. (BTW bus riders are predominantly POC, elderly, disabled and families) who need to do grocery shopping, go to church, get to Mt. Sinai/St. Luke’s, NYCHA buildings, various nursing homes on Amsterdam etc.

        It is unforgiveable that core mass transit is sacrificed so upscale folks can have brunch.

        Transportation Alternatives cares about bicycles — not buses. Again — native New Yorker here. My entire extended family has always taken buses and subways. I believe my knowledge here is superior. And bus service has declined over the past 10 years — frequency cuts, route cuts and fare increases.

        Regarding your opinion that land use is too restrictive — clearly we have different opinions on this matter. As one example, see the massive luxury high-rises that have been built on Fulton, Nassau Streets and surrounding blocks — luxury high-rises that replaced 5-story buildings. The narrow sidewalks are impossible with the new buildings’ garbage piled up. The narrow No. 2/3 subway platform is an accident waiting to happen. FYI, the new affluent residents do a lot of e-commerce — so there is a constant stream of UPS, Amazon, etc delivery vehicles in an area that had almost no traffic 10 years ago.

        Would say more but have got to get work.
        Last but not least — please note that nowhere in my comments have I denigrated your opinion. Referring to others as “silly” is not cool.

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