Mayor Adams assists with the demolition of an abandoned dining shed at the press conference announcing the City’s new enforcement initiative on August 18th. Image Credit: Ed Reed/Mayoral Photography Office.
Multiple lawsuits have challenged both the temporary and proposed permanent open restaurant programs. On August 18, 2022, Mayor Eric Adams announced a new enforcement initiative with multiple city agencies to remove abandoned outdoor dining sheds. The City’s temporary open restaurants program allowed for restaurants to build outdoor shed structures on sidewalks and in roadways to allow for safer outdoor dining during the pandemic. However, some of these structures have been abandoned by restaurants that have now shut down resulting in abandoned structures that have gotten many quality of life and safety complaints.
The City’s new enforcement initiative will help identity and remove abandoned sheds. Led by Deputy Mayor Meera Joshi, the initiative will be a combined task force between the Departments of Transportation and Sanitation. The Parks Department helped with the initial blitz in which the City removed 24 sheds outside closed restaurants. The NYPD will assist in the removal of sheds where public safety is an issue.
The task force will continue to investigate and identify sheds that are abandoned or sheds for restaurants that are “egregious violators” of the program guidelines. Data for complaints and summons will be reviewed. Sheds that are reported to be abandoned will be twice verified as abandoned before receiving a termination letter and subsequent removal of the shed.
Sheds for restaurants in violation of program guidelines will be inspected three separate times. Restaurants will receive a notice to correct outstanding issues after each of the first two failed inspections from DOT. After the third failed inspection, DOT will issue a termination letter and provide 48 hours before issuing a removal notice. The shed will then be removed and held by the City for 90 days, and if not claimed, will be donated. At the time of the announcement, 37 sheds had been identified as egregious violators of the program guidelines.
New Yorkers are encouraged to contact 311 to report sheds that appear abandoned.
Over 12,600 restaurants have participated in the open restaurants program citywide. While the temporary open restaurants program has been credited with saving approximately 100,000 jobs, the program has received criticism for creating quality of life issues like noise, trash, rodents, lack of accessibility, and removing public parking spaces and sidewalk space for the benefit of private businesses. The task force’s efforts to remove abandoned sheds are part of the City’s attempt to address some of these issues as the City is in the process of trying to establish a permanent outdoor dining program.
Mayor Adams stated, “When a dining shed is no longer in use, it’s abandoned and it’s a safety hazard, we have to tear it down. It can’t be a safe haven for rats, it can’t be a safe haven for illegal behavior. It has to be a place to allow people to enjoy dining.”
DOT Commissioner Ydanis Rodriguez stated, “Open Restaurants has enabled us to reimagine the use of public space, so we will not let a few bad actors destroy the program for thousands of restaurants that have been great partners and neighbors. We will follow Mayor Adams’ leadership in the coming months as we further grow Open Restaurants and Open Streets into effective and permanent programs.”
Earlier this year, the City Planning Commission approved a zoning text amendment for the permanent open restaurants program that removed geographic restrictions on where sidewalk cafes could be located. A bill was then put before City Council that would enable the creation of the program and transfer the authority to the Department of Transportation from the Department of Consumer and Worker Protection. If approved, the Department of Transportation and related agencies would then need to undergo agency rulemaking processes to establish the rules of the program.
However, multiple lawsuits have challenged both the temporary and proposed permanent open restaurant program. Earlier this year, a New York County Supreme Court judge ruled against the City over the City’s failure to perform an environmental impact study for the permanent open restaurants program in violation of state law. The City had “pre-judged” that the permanent open restaurants program would not have a negative environmental impact, in part based on the temporary open restaurants program, which had been in effect for over 18 months when the zoning text amendment was passed in February 2022. The ruling halts the implementation of the zoning text amendment and would require the city to go back and do the entire environmental review process.
Another lawsuit filed last month by 35 city residents challenged the ongoing temporary open restaurants program claiming there “is no public health emergency” to justify the continued extension of emergency executive orders that allow the temporary open restaurants program to operate, citing the end of other COVID-19 related programs and restrictions. The petitioners also claimed that the open restaurants program had resulted in noise, trash, rodents and other nuisances. The litigation is ongoing.
At the press conference announcing the abandoned sheds initiative, Deputy Mayor Joshi stated, “Poorly maintained and abandoned sheds are a blight on our streetscape. So we’re focused on stepping up enforcement on the abandoned and the most egregious non-compliant sheds. They’re not serving their purpose, and they’re creating an environment that fosters illegal activity. They represent a dark spot on an otherwise popular and successful program. According to a recent survey from the Regional Planning Association, 86 percent of New Yorkers are strongly in support of the Open Restaurant Program. But as the mayor noted, there is a small minority that has filed litigation trying to stall that program. And unfortunately, that has put a paralysis on our plans to create a permanent program. So bear with us as we work through the litigation. We’re confident we’ll be victorious, and then we’ll have a permanent program.”
CityLand will continue to provide updates regarding the status of the open restaurants program as it further develops.
By: Veronica Rose (Veronica is the CityLaw fellow and a New York Law School graduate, Class of 2018).
Thank you for the information on outdoor dining.
Thou many restaurants did get by : having them in many places were aannd are terrible and for all the conditions noted. My opinion is they are great but ONLY WITH THE REGULATIONS AS YOU DO OUT DOORS CAFE’
If we require certain rules then it works for both sides.
ALL these freebies stuff and all the funds given was a bit too much and has created selfish uncaring waste to others. If the restaurants register as café then ok.
Thank You