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‘We want our streets back!’ Shed foes sue to shut down ‘lawless’ outdoor dining program — now

BY LINCOLN ANDERSON | Shed the sheds — as in, right now!

Residents from across the city have filed an Article 78 lawsuit to end the ongoing renewals of the emergency executive orders that authorize New York City’s temporary Open Restaurants program, and to end its operation.

Birthed under former Mayor de Blasio during the depth of the pandemic, the Open Restaurants program has been operating since since June 2020. According to the lawsuit, however, for more than two years, the supposedly temporary program “has circumvented both the zoning code and the New York City Charter through repeated renewals of emergency executive orders.”

Per the suit, the mayor’s and governor’s emergency orders that have kept extending Open Restaurants were initially based on the idea that “requiring social distancing” would “diminish the seating capacity” of restaurants and bars and that the program “could thwart the spread of COVID.”

However, this March, Eric Adams ended the Key to NYC vaccine requirement, which mandated that anyone over age 5 show proof of vaccination to enter various indoor venues, including restaurants.

As a result, the lawsuit notes, “In recent months, respondents’ chief executive officers and other leaders have relied upon an economic rationale for extending [Open Restauarants]. However, such a rationale does not provide a sufficient legal basis for an emergency order in New York absent the existence of an underlying public health or natural emergency, neither of which now exists.

“In reality, no public health emergency exists,” the suit argues, “and, therefore, there is no premise for [Open Restaurants].”

The litigation concludes by asking that the court “permanently enjoin operation of [Open Restaurants], require [the] City to revoke any permits now in effect allowing places of public accommodations to so utilize its sidewalks and streets, and enjoin any recommencement of [Open Restaurants] absent the declaration of an actual public health emergency… .”

A total of 35 residents — hailing from Brooklyn, the Bronx, Manhattan and Queens — are plaintiffs in the new suit. Representing the group is civil-rights attorney Michael H. Sussman, who is also pursuing a separate lawsuit against the proposed Permanent Open Restaurants program.

That other lawsuit won in State Supreme Court this past March, arguing that the city had failed to conduct a proper environmental impact study for Open Restaurants, a sprawling, new, citywide program with 12,000 roadway sheds all over the Big Apple, but with a disproportionate number in Downtown Manhattan. However, while the city is currently appealing that ruling, the sheds are still out on the street — and still driving their critics crazy. Hence the new lawsuit demanding an immediate stop to the program.

The outdoor dining program, the suit charges, causes “increased and excessive noise, traffic congestion, garbage and uncontrolled rodent populations, the blocking of sidewalks and roadways, causing petitioners and others to be unable to safely navigate the city’s streets and sidewalks, and a diminution of available parking upon which some of the petitioners depend.”

The outdoor seating scheme, with its thousands of dining sheds, “also continues to appropriate [a] substantial share of public sidewalks and streets for private use and profit,” the suit further states.

“Lawful conduct starts at the top,” Sussman said. “Public legitimacy depends on our leaders telling the truth. Executive orders extending the ‘temporary’ Open Restaurants program circumvent the law.  The city has failed to comply with the processes state and city law contemplates when programs of this magnitude are considered and, instead, fenced out public participation. Our second lawsuit is a frontal attack on this lawlessness.”

A gated roadway dining shed on First Avenue in the East Village that looks like it might mainly be being used for storage. (Photo by The Village Sun)

Many residents were supportive of restaurants during the health crisis that made temporary outdoor dining necessary. But the plaintiffs say that “the cumulative negative impacts” on their neighborhoods are destroying their quality of life, and that “the abuse of executive power must end.”

While New York State and City have suspended or abandoned all other pandemic emergency orders and programs — including test-and-trace, vaccine and mask mandates, home food deliveries for the elderly and shut-ins, and free hotel rooms for those with COVID who need to self-isolate, eviction protections and enhanced unemployment benefits — emergency orders “continue to be selectively issued for the benefit of the restaurant and nightlife industries,” the plaintiffs maintain.

Robert Camacho, the chairperson of Brooklyn Community Board 4, representing Bushwick, is one of three-dozen plaintiffs on the new lawsuit.

“Mayor Adams says the emergency is over,” Camacho said. “He says everybody’s got to go back to the office to work. He wants everyone back at their workplaces — and we want our streets back. We want the restaurants open, but we don’t want the sheds destroying our streets and neighborhood.”

Camacho said that, at one point, there were 40 abandonned dining sheds in Brooklyn C.B. 4. Working with the Department of Sanitation he got many of them removed, but there are still 15 to 20 of the vacant roadway eyesores, he said.

Patrick Walsh, a public school teacher and Lower East Side resident, is another plaintiff.

“The mayor’s decision to keep renewing an emergency order for the hospitality and liquor industry that is no longer needed serves as another reminder that residents’ quality of life and safety are not priorities, or perhaps, even seriously considered,” he said.

Trina Semorile, a Hell’s Kitchen senior citizen with mobility impairments, slammed local politicians for allowing the situation to fester.

“The bars and restaurants have simply taken over the streets,” she said. “The willingness of politicians to allow this, at the expense of residents, harms the public at large, other businesses and the ability of residents to the peaceful enjoyment of our homes.”

Lower East Sider Deborah Gonzalez, an advocate for affordable housing and homeless services, said the condition of the streets is the real emergency.

“Our lives are being harmed and disturbed with every emergency renewal that allows the sheds and sidewalk cafes to park in our neighborhoods,” Gonzalez said. “The emergency order that needs to happen right now is for our streets to be cleaned up and made safe, permanent housing for the homeless and better subways.”

Also among the plaintiffs is David Gruber, a past chairperson of Community Board 2, which includes Greenwich Village. Gruber, among others, has repeatedly argued that a “one size fits all” approach for the Open Restaurants program has been a disaster, since the Village area has so many bars and restaurants compared to most other parts of the city.

In her affidavit for the lawsuit, plaintiff Angela Bilotti complains of an explosion of rats and noise associated with the proliferation of dining “shanties” in Williamsburg, Brooklyn.

“Pre-pandemic I enjoyed my neighborhood’s charm, clean and quaint tree-lined streets, parks and peacefully working in my garden,” she said in the affidavit. “Since the implementation of [Open Restaurants] the neighborhood has eroded. The sheds filling the streets have become nesting grounds for rats. Litter lines the streets as rats tear open the piles of trash left beside the sheds. Storm water collects at the shed walls, becoming mosquito breeding grounds, and the stench is horrendous. Street cleaning trucks are unable to do their job when sheds dominate the roads. Where I used to be able to smell the trees as I walk my dog, it now smells like decay and urine. Tree beds near sheds have gaping holes where rats have tunneled through to nest. During evening dog walks you can even hear rats fighting under the shed floors or they run across the sidewalk and street in numbers. Riding my bike means dodging rat roadkill. In my time here I’ve never lived with so much filth, stench and vermin. Some sheds are dilapidated or covered in graffiti. Some aren’t even used for dining but for storage behind locked doors. Many [exceed] the width of an automobile by a foot, making traffic very dangerous, especially the corner sheds which also block stop signs.

“Other quality of life issues have to do with the operation of the restaurants themselves,” Bilotti continued. “They fill the sidewalk with furniture making it difficult to pass, they install speakers and/or DJ’s outside, and in some cases a canopy of globe string lights hanging low enough to hit with your head. The noise levels from a combination of customers shrieking and music have made my home unlivable. When working in my garden, I can hear loud music coming from three different establishments clashing in the atmosphere. What used to be a sanctuary to escape to in this bustling city is now time spent filing 311 reports and battling rats which have found their way into my garden beds. Restaurant owners and managers are uncooperative. I’ve confronted a few, pleading for sidewalk clearance and reduced music/noise levels. Nothing changes. One restaurant owner told a neighbor she’s conducting business, so just close their windows. That neighbor moved away.”

18 Comments

  1. Karon Bihari Karon Bihari Post author | July 31, 2022

    I would like to add my voice in agreement with the Lawsuit against the Restaurant Alfresco/Shedss & extra Sidewalk seating in my neighborhood — the Upper East Side.

    It is a Mess up here and no one seems to care. I have called 311 over 20 times this year to no avail/Closed Service Requests!

    My block, 84th Between 2nd & 3rd Aves., is a Residential block as are most of the Streets up here. BUT ON 84th we have 3 messy, filthy, busy Bars & restaurants — Brandy’s Piano Bar, Trinity Pub, and The Green Kitchen — that are noisy, dirty and disgusting with no care for the residents of this block or the dogs who have to negotiate the hundreds of cigarette butts and broken glass, soups of fallen salsa & chips, Overspilling Trash Cans on the corners and RATS, etc.

    I am scared to even go outside and walk my dog!

    The Green Kitchen keeps their gigantic Cellar Doors OPEN ALL DAY & EVENING with a Stolen Con Ed Sawhorse and Con Ed Cones to legitimize it being there & OPEN, causing DANGER to PEDESTRIANS, APART FROM THEIR TAKING UP MOST OF THE REMAINING SIDEWALK WITH 20 OR SO GIANT DELIVERY BIKES BLOCKING THE SIDEWALK AND THEIR WAY-TOO-MANY SIDEWALK TABLES AND DIRTY BUS STANDS (2 OF THEM), APART FROM THEIR CURBSIDE SHED WITH WAITERS BUSTLING BUY WITH FOOD AND DIRTY DISHES.

    I am disgusted.
    I agree with this lawsuit.
    We New Yorkers must take our neighborhoods back!

    Thank you for all you do & kind regards,

    Karon Bihari

  2. Karon Bihari Karon Bihari July 31, 2022

    P.S., As well as deterring the Sanitation trucks that “sweep” the streets and cannot do so properly due to the outdoor street dining sheds or whatever one calls them, the Upper East Side is also a filthy mess, as well, as I stated above. We have no more sidewalks to walk on, either! The Sidewalk Sheds take up a width of more than 9 feet of sidewalk on Second Avenue and at 84th The Green Kitchen, as well as their street sheds, and ELIO’S on Second off 84th also, THE DAISY at 85th and 2nd is abandoned and a mess with people sleeping in it and vomiting all over the neighborhood! The Trash Cans are more than OVERFLOWING and both Sanitation and Traffic do NOT CARE!!! And Many more deplorable, gross annoyances to negate our Quality of Life. I would like to share my Photos but this comments section does not allow Photos.

  3. Ole lady voter Ole lady voter July 31, 2022

    In my neighborhood we are already seeing another side effect of making this ill-advised and largely unregulated “temporary” program permanent, which is an increase in empty ground-floor retail spaces as landlords and co-ops are incentivized to refuse to renew ground-flr leases in the hopes of charging much more money leasing to a restaurant, bar or cafe. We have already lost a laundry/dry cleaners and a much-used neighborhood deli market.

    • ev ev August 1, 2022

      Ole,
      Definitely — a significant, undiscussed issue is that landlords are moving to get rid of local retail in favor of bars and restaurants which will pay more.

      While the City has done everything (free sheds, funding, rule hiatus, etc) for restaurants, the City has done nothing for local retail. Local retail has been hurt by high rent, incursion of chains and worsening crime; and now impacted by restaurant sheds — rats, storefronts blocked by sheds and rent impact.

  4. Henry Scott Henry Scott July 31, 2022

    This is fascinating! I live on the Lower East Side and walk an average 5 miles a day there and in adjacent neighborhoods, and I don’t see the rats or smell the stench these people are talking about. Yes, some of the dining sheds could be better designed, but I’m delighted they are occupying parking spaces and thus helping us reduce car pollution. Let’s try to emulate Paris, where everyone dines on the street, and not Atlanta.

    • ev ev August 1, 2022

      Henry,
      Actually there is outdoor dining in Atlanta and most of it in more spacious, greener surroundings than NYC.

      As for Paris — sure, street dining is lovely situated by small, old buildings.

      Perhaps the answer is to tear down NYC’s glassy high-rises and replace them with classic low-rise buildings — like Paris!
      I’d like that 🙂

      • conservadox conservadox August 8, 2022

        Using the word “green” to describe Atlanta (a city where car ownership is virtually required for a normal life) is just perverted.

    • Jane Woe Jane Woe August 8, 2022

      The sheds do not “reduce car pollution” by “occupying parking spaces” — they result in vehicles circling, idling and double-parking (while idling), creating additional hazards in the street, including worsened visibility, cars needing to swerve around double-parked cars, as well as sheds, and, frequently, blocking crosswalks and curb cuts to “park.”

      NYC is not Paris; it will never be or look like Paris — nor should it.

      Bloomberg was obsessed with London, and trying to make NYC into London. Apparently, Adams wants to “refashion” NYC into Paris. This cannot be done.

      How about working to make NYC as NYC, a safe, healthy, and affordable city for all of us? Now there’s a radical notion.

  5. Nicole Francis Nicole Francis July 31, 2022

    Fascinating that someone on the LES sees no rats or smells the stench! I’m on the LES and walked by a shed that had about a half-dozen mutilated rats! But Henry Scott didn’t see it, so it must not be true. I have a folder of photos documenting the gore. One shed on Mulberry had an old porcelain toilet in it! Just like Paris! The sheds are disgusting and need to go!

  6. JackDog JackDog August 1, 2022

    Rats plenty. Parking sparse. Credit given to Transportation Alternatives and real estate
    industry.

  7. n, n, August 1, 2022

    these sheds are a disgrace: dirty, unsanitary, blocking sidewalks, make street crossing dangerous (can’t see oncoming traffic). serve no purpose now that Covid is not the major threat it was at the beginning. NYC is NOT Paris, France: we don’t do sitting around all day in cafes; we do walking.

  8. S. R. Piccone S. R. Piccone August 1, 2022

    Having visited Paris quite a few times, I can honestly say I have never seen a shed for dining on the sidewalk or in the street gutter. Yes, they may have little tables and chairs suitable to the size and space available in front of their cafe, but they don’t spread into the areas in front of apartment buildings, so that residents have to walk into diners and waitstaff carrying plates of food every time they want to go in or out of their home. Too often in NYC the area of sidewalk is so narrow and crowded with people, serving stations, etc., etc.,that a wheelchair or a baby stroller can’t navigate the street.

    In my Greenwich Village neighborhood some restaurants have added up to 2 and 3 times the seating previously available. They pay rent for a small restaurant and then commandeer the sidewalk and street gutters well beyond their front door. What is wrong here? Is the city so stupid that they allow this and allow overtaking the space at no cost? The citizens of the neighborhood are the ones who are paying with ugly sheds on pretty Village streets, garbage piled up, rats running rampant, noise pollution often late into the night, clogged streets with delivery trucks, garbage trucks and street cleaners and emergency services unable to negotiate a single, narrow lane for driving.

    Please tell me why anyone in their right mind thinks this is a good idea.

    These outdoor dining spaces served a much-needed option during the height of the pandemic, both economically for the restaurants and as a pleasant escape from their homes for customers. Thankfully we’re passed that time now. Time to break down the sheds, give the streets a good cleaning and bring back the pretty streets of our city.

  9. Carol from East 5th Street Carol from East 5th Street August 2, 2022

    Thank you S.R. Piccone! So well said.

  10. Kathy C Kathy C August 3, 2022

    As a Greenwich Village resident, I totally agree with Mr. Piccone. It is time to get rid of the outdoor sheds, rat infestations, trash and blocked sidewalks and entrances to our apartment buildings. NYC residents, their children, dogs, families and visitors need a clean, healthy & safe environment. The vermin & trash are actually health hazards. The city needs to bring back clean streets & sidewalks. The restaurants & bars are operating at full, pre-pandemic capacity — there’s no “pandemic emergency.” Kathy C.

  11. conservadox conservadox August 8, 2022

    This is all very one-sided.

    First of all, the claim that outdoor dining is the cause of rat infestations is false. Why? Because the rat population is increasing in places where there ISN”T outdoor dining, like Central Park and residences. (For a detailed survey of expert opinion, see https://nyc.streetsblog.org/2022/08/08/oh-rats-experts-say-outdoor-dining-is-not-to-blame-for-the-citys-rodent-problem/)

    Second, the claim that COVID is over is flat-out false. We are at 500 deaths PER DAY of COVID — that’s a 9/11 every week. And that number is INCREASING due to the super-contagious new variants that cut through vaccines like butter. The more indoor dining, the more COVID, the more death. What part of that do the Village’s privileged residents not understand?

    Third, I suspect the real reason for the objections to outdoor dining is parking. People who own cars want to take over the streets for their cars, so they can wage jihad against the city’s air quality and against the planet, generally. Cars kill 40,000 Americans a year from crashes (inclulding hundreds of New Yorkers) and even more from pollution. So if we really cared about the city’s quality of life we would END on-street parking for cars. END IT. NOW. If you want a car and don’t want to pay for a garage, go live in the suburbs and make room for people who want to live in Manhattan without polluting it.

    • LM LM August 10, 2022

      Conservadox,
      I am a “real” 🙂 New Yorker — I don’t know how to drive.
      My family walks, uses bus and subway.

      We are completely against restaurant street shacks — nothing to do with parking.
      So many reasons, don’t even know if there is enough space to list but will try:

      Unfair free space for restaurants (small retail gets no perks).

      In Manhattan, most restaurants are owned by wealthy investors/LLCs who already got Federal dollars — not many “mom and pop”.(Unbelievable to see shacks with tv and air conditioning)
      Huge garbage/rat/shantytown issues.
      No sleep for folks who live above due to outside music/noise all night.
      Loss of sidewalk for pedestrians as restaurants use both sidewalk “cafe” seating and street shack seating.
      Some blocks are entirely shacks, even blocking entrances to apartment buildings.
      Impacts fire and ambulance.
      Especially in LES, EV and Greenwich Village, it’s clear that the people benefitting are affluent millennials who have money to drink, brunch etc. — while the rest of us regular folks must work.
      So many other reasons…

  12. Damian m Damian m August 9, 2022

    I hate what these outdoor dining shacks have become. I live on First Avenue and itis a disgusting mess there. All vandalized, a rat 🐀 infested mess and they need to come down. It just became an eyesore for the neighborhood and just gives the unrighteous another surface to destroy.

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