Judge Blocks City’s Effort to Make Open Restaurants Program Permanent

The path to permanence for the city’s outdoor dining ambitions has been dealt a blow, thanks to a court ruling earlier this week.

The Supreme Court of the State of New York, with Judge Frank Nervo presiding, ruled in favor of 22 New Yorkers who filed suit last fall. The claimants argued that the negative impacts of the Open Restaurants program – dining sheds galore – required an environmental review.

This ruling effectively nullifies the City Council’s Zoning Text Amendment which would have permitted outdoor dining in nearly every street in the city.

In his terse judgement, Judge Nervo dismissed the City’s argument over Open Restaurants, and rebuked its actions.

“For a taxpayer supported agency to declare, in effect, the Open Restaurants Program and Outdoor Seating have no negative impact on our streets and communities because that Agency has unilaterally made that determination serves only as a thinly-veiled attempt to avoid statutory scrutiny of the program by a baseless claim of its own omnipotence,” Nervo stated.

The City had been moving rapidly to make the pandemic emergency outdoor dining program permanent. City Council held a single public hearing in early February and two weeks later voted to overturn decades of zoning regulations that prohibited outdoor dining in residential districts.

The Supreme Court ruling means that the City would need to perform a thorough environmental impact review to make Open Restaurants permanent.