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S.O.S. group in distress over Open Restaurants; Lawsuit certain

BY LINCOLN ANDERSON | Updated Fri., Dec. 4, 4 p.m.: Bars and restaurants hail the city’s Open Restaurants program as a lifeline amid the pandemic. Many New Yorkers love the new nightlife option and have been partaking of it.

“Like Paris” is how some romantically describe the proliferation of outdoor dining.

Despite the program’s popularity, though, it remains to be seen how Open Restaurants will fare through the depths of a Big Apple winter.

Meanwhile, a new coalition of civic, block and tenant groups and individuals from all across the Downtown area — from West Side to East Side — is now rising up to fight the plan. Their main beef, and the reason they decided to organize, is that the program was initially approved — and later decreed permanent — with zero community input.

They call themselves New Yorkers for Safe Open Streets, or S.O.S. for short. So far, they have held two virtual organizing meetings, mostly focused on drafting a “mission statement.”

Groups at the first meeting included the North Avenue Avenue A Neighborhood Association, Friends of Petrosino Square, South Village Neighbors, Bowery Block Association, E. Fifth St. Block Association, Ninth St. A Block Association, Central Village Block Association, Tenants Net E. Fourth St. Block Association, Greenwich Ave./10th. St. Residents, W. Eighth St. Block Association, Orchard St. Block Association, and Lower East Side Dwellers.

According to Village District Leader Arthur Schwartz, who is an organizer of the effort, it will surely result in a lawsuit being filed against the city to rescind the program.

“Definitely, there’s no question” there will be a suit, he said. “First of all, [the Open Restaurants law is] just plainly arbitrary and capricious. I compare it to when Bloomberg banned large cups of soda but they didn’t ban large bottles of soda.

“Why can only restaurants operate on the street? Why not everybody? Retail operators can put stuff out on the street, but then they have to take it in at the end of the day.”

He was referring to another, more recent, pandemic-inspired initiative from the de Blasio administration, Open Storefronts.

Getting into a jam: Only a narrow lane on the sidewalk was left on Avenue A near Seventh St. recently by a restaurant that illegally put seating on the sidewalk along the curb — as well as, legally put seating by the restaurant’s exterior wall and in the curbside parking lane. (Photo by The Village Sun)

“Most of these structures don’t leave space for emergency vehicles,” Schwartz continued, referring to Open Restaurants. “They block fire hydrants. There’s not [the required] 8 feet of sidewalk clearance — not in the Village. The only place I’ve seen that much clearance in the Village is on Sixth Ave.

“The [outdoor] structures, there’s no uniformity,” he continued. The program “doesn’t take into account noise regulations. …”

In short, Schwartz said, there is no shortage of points for a lawsuit to attack.

“When a law is so inconsistent and so full of holes, I think it’s something that very quickly a court will knock down,” he predicted. “It was not well thought-out. … And what’s the rationale for having it after COVID [is over]?”

On top of everything, the attorney said, there’s currently “no enforcement” of the published guidelines for Open Restaurants. For example, a diagram on the Department of Transportation’s online application form for the program clearly states that seating on the sidewalk adjacent to the curb is not allowed — yet some restaurants are clearly doing this.

Siting criteria for Open Restaurants clearly show that seating is not allowed on the sidewalk at the curb. (NYC D.O.T.)

“There’s no seating on the sidewalk adjacent to the curb and you need [to leave] an 8-foot path,” Schwartz stressed, adding that both of these regulations are being widely violated.

The City Council voted on Oct. 15 to extend Open Restaurants for another year, with the Council assuring that the program would definitely be made permanent after that.

The scheme’s signature feature is that it allows establishments to use the parking lane outside their premises for outdoor seating. Again, to many local residents’ outrage, the City Council — despite not seeking public input on the matter — has vowed to permanently legalize this street setup.

The finalized S.O.S. mission statement was not yet approved for publication by press time. However, The Village Sun obtained a draft.

To paraphrase, the statement opens by charging that the Open Restaurants law was approved without any public debate and input, and ignored the community board and ULURP process, referring to the city’s typical public review.

“While the members of NYSOS do not oppose safe emergency efforts to keep New York’s small businesses, including local restaurants, alive during the pandemic, the permanent taking of public space, with little or no regulation, is just plain wrong,” the in-progress statement declares.

The “mad as hell” manifesto raises a host of problems the law allegedly ignores, including emergency vehicle access, flouting of zoning rules, fire-safety rules, noise codes, liquor-license regulations and Department of Buildings regulations.

The group’s ultimate goal is stated clearly: to rescind the law that made the Open Restaurants program permanent.

Other demands of the coalition are that the outdoor dining structures be safe, in terms of not blocking emergency vehicle access on the streets or crowding pedestrians on the sidewalks; and if the structures are tents or huts, that they must be adequately ventilated and COVID safe.

In addition, according to its mission statement-in-progress, the group says that State Liquor Authority laws must be complied with, noise regulations must be followed, fire hydrants must not be blocked, and outdoor heating for the exterior dining areas must follow the city’s fire code.

Schwartz — who is a candidate for City Council in District 3 — noted that a number of prominent Downtown activists are part of the effort. He cited, for example, Marilyn Dorato, president of the Greenwich Village Block Associations, an umbrella group that includes multiple block associations.

Another outdoor dining structure on Avenue B. (Photo by The Village Sun)

Another is Ayo Harrington, a former member of Community Board 3.

“Ayo is definitely going to play a leadership role in this,” Schwartz said.

Stuart Zamsky is an officer of the E. Fifth St. Block Association, a member of the S.O.S. coalition. He said, “it’s crazy to give a pass” to Open Restaurants, especially in a freewheeling place like the East Village.

“I believe that our goodwill toward restaurants in this time of COVID has either been misinterpreted or taken advantage of,” Zamsky said. “As much as we want restaurants to survive and thrive, this seems like an inappropriate time to usher in outdoor dining on a permanent basis and especially without public input.

“My block and block association have worked for years to support local operations while insisting that they be good neighbors. It is a fine line to walk,” he noted. “In light of the current atmosphere, which in the East Village seems like the Wild West, it seems crazy to give this a pass without some real forethought.

“I am deeply troubled that my City Council representative, Carlina Rivera, would support this without consulting with her constituency — which, being the East Village, is already problematic when it comes to oversaturation of bars and restaurants,” Zamsky said. “I am not saying that I am necessarily against outdoor dining, but I do feel that we, regular New Yorkers, have been removed from the process and it makes me wonder why?”

Similarly, Schwartz added that S.O.S. members don’t want to be dismissed as NIMBYs who are not supportive of the hospitality industry during a moment of crisis, and that they are crafting their mission statement to reflect that.

“Everyone wants the first statement to be ‘We all support our restaurants,'” he said. “Nobody wants to be known as NIMBYs.”

He said whether the entire S.O.S. coalition sues remains to be seen, that maybe only certain groups or individuals will sue — but that, one way or another, there definitely will be a lawsuit.

8 Comments

  1. Brendan Sexton Brendan Sexton December 4, 2020

    I live on a not-wide street in Soho. I welcomed outdoor dining, and the liveliness it brings (yes, noise, too, but often a joyful noise). Eyes on the street, Jane Jacobs taught us, equals safer streets.

    But of course many are pushing to and past the limits of the regulations and of common sense. Some of these structures are so constructed that they are almost not even “outdoors” anymore. And you are right, the sidewalk next to the curb is routinely commandeered and these are narrow walking paths to begin with.

    Oh well, winter is a’comin’ in, and there’ll be a pause and a chance to reconfigure regs, and especially to decide what our enforcement priorities should be.

    I hope we can somehow sustain the liveliness, the fun, but introduce or enforce the consideration for others that I see lacking in some places.

    • Anthony Donovan Anthony Donovan December 4, 2020

      Supportive, understanding attitude and positive suggestions. Thank you.

  2. Linda Porto Linda Porto December 4, 2020

    Might be good for The Village Sun to highlight a few the restaurants & bars that are doing things right.
    Like Jenie & Lorcan Otway’s Barnacle Bar/Tavern new setup, outside Theater 80 on St. Mark’s Place.

  3. Anthony Donovan Anthony Donovan December 4, 2020

    Thank you. When I first saw the name S.O.S. I must admit I got excited. There is another S.O.S. which did some mighty work that could have helped this situation

    https://www.saveourstorefronts.nyc

    Back in April (that’s over 8 months ago now) some of us in the EV walked around trying to speak with our neighborhood small businesses, to see how to help each other, survive.

    They were beginning to fold. Mostly, they were all very worried. There was no political leadership about their bills, rents, taxes, expenses without income….what to do, except hand sanitizer, plastic shields, closing shop, masking (PPE for some).

    Small businesses did the right thing for Covid-19 to protect all, but too few of them had landlords who did, or cared (a few did), calling for rent due. Oft, full rent.

    Some of these landlords get vacancy credit…. a crime… kicking someone out and then writing the loss off…. folks should go to a work camp for that… not have a law that protects them. Shame on us.

    Carlina (Rivera), our city councilmember, got a vital bill passed to prevent landlords from going after personal assets of businesses that couldn’t pay or keep up during this pandemic. Can you imagine a world that needs such legislation?! Thank you, Carlina.

    We had a mandate to close shops by our State. It was obeyed.

    We had numerous landlords calling for full rent to be paid. (Some of those who went under were paying full rent up until closing!)

    And we had a public leaving and not coming into shops, this catastrophic lack of revenue.

    But our State Reps were quiet on problem solving. Oh, a hearing happened eventually, and there were nodding heads.

    Amongst shop owners/small businesses there was plenty of creativity, caring, giving, and making the best of what one has, and there were neighbors coming to help one another. With a vacuum of leadership, oft the people do all they can.

    I too loved it when restaurants and bars were allowed on the street… Yes, it brought back the sound of life, do you not remember the silence?! And such resourcefulness and creativity, art, of many. Paris perhaps, for me more like Madrid, Prague, Rome, and the feel of the old East Village life and community. (I first came to these streets in the mid-’60s)

    But very tragically, primarily because of lack of leadership, we witnessed many friends fold. Four on my one small block alone. And around the corner, my shoe-repair man of over 30 years, gone. The seamstress/tailor and dry cleaner of 30 years on the other corner, gone. These are great personal losses.

    ** So, by May (7 months ago) we knocked on the doors and begged our local State Reps to help us with a solution…. not a handout, but a solution that called for SHARED Responsibility for a Shared Crisis.

    Our State Reps were the only ones to hold landlords in check with legislation. They were the only ones to hold the State as a player in the solution.

    Small Business — Landlord — State

    Work together. Share the burden. Share the solution. That was the call seven long months ago.

    So if you have seen an SOS in a store window since May in the EV…. that was the movement… to get Shared-Solution legislation passed. To let small businesses know that, at least in our community, they were heard and respected.

    I personally went into 400 shops over a couple of days in the EV. How do I know? I printed 400 small fliers at NY Copy Center on E. 7th Street, and gave one to each shop I went to. From 3rd Ave to Ave B, from Houston to 14th Street. Not one flier left. Others did this too. The hope in people’s eyes. The distrust anyone would help, and the call to hang in there…. we were going to get through this together! I feel guilty that I gave false hope, hope I had in my reps taking the charge.

    You will see on the Web site, the SOS team made the two State bills, we finally got them up a few months ago. Hoylman and Epstien, State Senate and State Assembly. Bills. For a moment, there was some light, some comfort, some relief possibly coming…. a few actually thought they could hang in a bit longer for it.

    Our Reps did no promo, no lobbying. They did not circulate to all their colleagues a Dear Colleague letter, although said they did. A bill can’t pass without a good majority. They would not make public statement in front of a shop, after our repeatedly asking them to do so. Nor make a supportive video promoting the bill. They would not go up to the sidewalk outside Gov. Cuomo’s East Midtown office and call attention for this fair, shared-solution legislation that could help.

    Through the grapevine we’d heard the reticence was, “It won’t work if the Feds don’t give the state the money.” We heard they were afraid of Gov. Cuomo.

    I repeated that Gov. Cuomo might delight in a positive community-based solution, at the time many were touting his abilities in leadership. Why not exemplify something that actually shows it for small business?

    It was clear to us: Helping businesses stay open meant the State would get some money, rather than none. And less when a closed business then has a landlord getting a tax write-off for it.

    What was S.O.S asking? 3 things.

    1. We asked that a percentage of revenue be paid by shop owners, if they had any… toward rent, toward taxes, etc. But let them stay alive to get through this shared active threat.

    The small businesses here, the people I spoke with, wanted to give… not take or be let off the hook. They wanted to work and wanted to be part of a solution… for the whole.

    They still had City and State taxes they were paying, utilities, expensive as hell WiFi, etc… They had inventory and many other expenses, and most importantly, they had many humans that depended on them for sustenance, for work, for something for their families.

    2. We asked that landlords be chilled a bit… for the legislation to include them to help by giving up their wide margin of profit during this crisis, this pandemic where so many are struggling. So they would have to adjust their demand.

    To be fair, there were a few, a handful of landlords that got the picture and wanted to keep something rather than nothing, who had a sense of worth in keeping people going.

    So yes, the ask was for NYC’s mighty Real Estate sector to step up to the plate in a shared manner. Tough ask for corps that only think of profiteering. And we’re well aware that the real estate scheming and taking advantage during this crisis, without oversight, has been and will continue to devastate the middle class’s ability to live here even more.

    3. We asked for the State to come in and make up the difference. For the few landlords that had difficulty, help. For the businesses to keep employees and stay afloat, to offer some help. The reward? The State and City get revenue when shops are not boarded up. But the cry was the State was broke and needed Federal monies, which weren’t coming.

    A bill is on the books now, thanks to advocates, and two local reps who listened. If the bill had been more strongly advocated for, if we gave it the press it deserved, the political backing small business deserved…. if they didn’t discourage full-out lobbying efforts months ago, it would be there as a law, waiting and ready when the funds arrive.

    Check out the bills and get the advocacy going. Or get an even better bill up there. Pass it! Over Cuomo’s veto, if needed.

    If we do go south, and there are mass evictions, people out of work because our small businesses were deserted, at least we can say we gave it all we could. Let’s do it.

    7 months later, this past week I heard Harvey and Brad went around the streets a bit with SOS talking to shop owners. It’s late for the thousands who tried their best and were left to cruelty and had to give up. But as MLK, Jr., repeated, it’s never too late to do what’s right.

    All these lives to me were a true SOS, unresponded to until the Titanic was long underwater. But, back then they got some in lifeboats, and that was a blessing. Let’s do it.

    Whatever we do, don’t let Real Estate and landlords profit from this loss…. buying up now-empty space. My heart and hat is off to the very few who jumped in and worked with their tenants. You deserve praise, as do all the shop owners/businesses who’ve greatly sacrificed through it all, and continue to do so. You give life and meaning to what is called…. community. Thank you.

    • ------m ------m December 5, 2020

      very well thought out – holistic positivity!

  4. Jack Dowling Jack Dowling December 4, 2020

    If you look at a map of Manhattan it is a grid, excepting Greenwich Village, of intersecting streets and avenues.

    There is no question that the restaurant business needs some method to survive, not only for the residents of the city, but hopefully when tourists and out-of-owners can return.

    So back to the crosstown streets of the grid. Many have simply been block-long parking lots with no fee. As the restaurants have taken street space, the car owners are now faced with where to park. Sell your car or leave it at your country house and take public transportation whether it be by Metro North or the A train. Public transportation badly needs your support if the city is to survive as a thriving metropolis.

    As for the cross streets: Close many of them, while leaving access for emergencies. During the height of the pandemic in March/April, the pleasure of walking in the street was beyond belief, a relief from the usual stress of bikes and cars. There were hardly any cars barreling along. You could cross avenues without the rush of single-occupancy vehicles threatening you.

    Lastly, the city allowing owners to throw up any kind of structure without guidance or ruling on the construction and material has made some streets look like the Medina in Marrakesh. It will soon be slob city where no one wants to go.

  5. Marna Lawrence Marna Lawrence December 4, 2020

    So, Mr. Schwartz wants to be a politician?

    He took advantage of smaller residential block associations to take over
    a number of smaller community block coalitions that were seeking justice to take back our streets and sidewalks from the stupid and greedy takeover of our public streets and sidewalks — i.e., this ridiculous illegal land grab referred to as the Permanent Outdoor Dining Program that the mayor of our city and some elected officials pushed to enact. It was and is, essentially, a “giveaway” to the all-powerful real estate industry.

    Let’s “watch this space” to see which way the wind blows for Mr. Schwartz.

  6. JackDog JackDog December 5, 2020

    Nearly a decade ago at the Wagner Center “visionary” then-DOT Commish J Sadik Khan told an audience filled with landlords that the bike buildout was “good for real estate.”

    This elicited a roar of appreciation. I was sitting next to a landlord named “Amberg.” Those of you familiar with the history of crime in this city may recognize the name “Pretty Amberg.” No aspersion on my fellow audience member. I simply turned to him and said, “She tells a lot of lies.” A flaming hubris fueled by carte blanche from Mayor —
    and future presidential flameout — Michael Bloomberg allowed her — with public acknowledgement of the “brain trust” Transportation Alternatives — to push the the “going green” myth and buildout.

    Even JSK & TA could not have envisioned the opportunity that the pandemic has presented them with. They have proceeded on the premise that environmental impact studies were to be ignored. The”visionaries” know best. Facts are for “little people.” Fear, injury and fatalities mere collateral damage.

    Having co-opted another would-be President, in current Mayor De Blasio, this same policy-by-fiat M.O. has been thrown down from on high. Twisting Bloomberg’s arm, TA was able — I was told by a State Assemblyman — “The reason there is NO ENFORCEMENT (of the law against rogue cyclists) is because Transportation Alternatives doesn’t want it.”

    When I related this to a manager of Community Board 1 he replied aghast, “That’s crazy”. And so it is. No enforcement. Undermine the NYPD. No environmental impact studies. Create world-class congestion. A public safety menace.

    This for 5% or less of New York commuters. Is this the tail wagging the dog?

    And now the acquisition of public space to save restaurants and bars — and keep the rent flowing. The reduction of parking to further TA’s mission of driving the motor vehicle from the city. The Village has risen to contest the vision…the obsession.

    Of all the colossal NYC egos, the one who actually captured the presidency is the reluctantly outgoing, the flailing loser Donald J Trump. The manifestly twisted con man and clown Trump. In this time of multilevel troubles and trauma, what is it about the American character that generates political “strongmen” and holy con men?

    A sense of desperation is my guess. Let’s take this opportunity to cite the two principal movers of the transportation debacle. Money man Mark Gorton, high-frequency trader. And Charles Komanoff, sophist in chief.

    In the same way that Trump tried to BS with alternative facts, these people have pushed illusory notions that have led the city down an obsessive path which is destructive to quality of life.

    Perhaps the light of day and a more reasonable and responsible mayor will restore balance to streets, sidewalks and sanity.

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