November 1, 2022
By: Ross F. Moskowitz, John B. Egnatios-Beene, Ashley E. Doukas
The latest turn of events occurred on October 4, 2022 when the Appellate Division, First Department overturned the New York Supreme Court’s decision and dismissed the opposition’s lawsuit to stop the Permanent Open Restaurants Program. Let’s go back and look at the timeline to understand the events and anticipate what could happen next.
In the wake of the COVID-19 pandemic and its profound impact on the restaurant business, a temporary open restaurants program was established through emergency executive orders to allow restaurants to occupy sidewalk and roadway spaces for outdoor dining without a formal approval process, as previously required by the Department of Consumer and Worker Protection.
On February 24, 2022, the New York City Council approved a zoning text amendment that removed geographic restrictions on where sidewalk cafes can be located and expanded the limitations to allow sidewalk cafes in all neighborhoods. Once the zoning text amendment was approved, the relevant city agencies were able to begin adopting a sidewalk café approval process that would be consolidated under one agency, the Department of Transportation (“DOT”).
Following City Council approval, a lawsuit was filed challenging the text amendment on the grounds that the City did not undertake appropriate environmental review as required by the State Environmental Quality Review Act and that a negative declaration was wrongfully issued without the preparation of an Environmental Impact Statement (“EIS”). This Supreme Court ruling halted further development of the Permanent Open Restaurants Program. The City’s argument against the lawsuit was that the suit was not ripe for review since further administrative steps had to be completed to develop the process for approving sidewalk cafes. The City’s legal response to the lawsuit was a motion to dismiss on this ripeness argument, which was denied by the Supreme Court.
On October 4th, the Appellate Division overturned the lower court decision and granted the City’s motion to dismiss, stating “[g]iven the remaining legislative and administrative steps that must be taken by the City before the permanent outdoor dining program is finalized and implemented in place of the presently operating temporary program, the City's issuance of the SEQRA negative declaration was not an act that itself inflicts actual, concrete injury.”
What’s next? It is important to note that the Appellate Division did not rule on the merits of the opposition’s challenge to the City enacting the text amendment, rather it was simply a ruling on the timing of the lawsuit. Therefore, while the City can now proceed in developing a procedure for DOT to review sidewalk café applications, they should expect further lawsuits once established.
Stroock’s Land Use and Zoning Team will continue to follow the developments relating to this issue.
November 1, 2022
By: Ross F. Moskowitz, John B. Egnatios-Beene, Ashley E. Doukas
The latest turn of events occurred on October 4, 2022 when the Appellate Division, First Department overturned the New York Supreme Court’s decision and dismissed the opposition’s lawsuit to stop the Permanent Open Restaurants Program. Let’s go back and look at the timeline to understand the events and anticipate what could happen next.
In the wake of the COVID-19 pandemic and its profound impact on the restaurant business, a temporary open restaurants program was established through emergency executive orders to allow restaurants to occupy sidewalk and roadway spaces for outdoor dining without a formal approval process, as previously required by the Department of Consumer and Worker Protection.
On February 24, 2022, the New York City Council approved a zoning text amendment that removed geographic restrictions on where sidewalk cafes can be located and expanded the limitations to allow sidewalk cafes in all neighborhoods. Once the zoning text amendment was approved, the relevant city agencies were able to begin adopting a sidewalk café approval process that would be consolidated under one agency, the Department of Transportation (“DOT”).
Following City Council approval, a lawsuit was filed challenging the text amendment on the grounds that the City did not undertake appropriate environmental review as required by the State Environmental Quality Review Act and that a negative declaration was wrongfully issued without the preparation of an Environmental Impact Statement (“EIS”). This Supreme Court ruling halted further development of the Permanent Open Restaurants Program. The City’s argument against the lawsuit was that the suit was not ripe for review since further administrative steps had to be completed to develop the process for approving sidewalk cafes. The City’s legal response to the lawsuit was a motion to dismiss on this ripeness argument, which was denied by the Supreme Court.
On October 4th, the Appellate Division overturned the lower court decision and granted the City’s motion to dismiss, stating “[g]iven the remaining legislative and administrative steps that must be taken by the City before the permanent outdoor dining program is finalized and implemented in place of the presently operating temporary program, the City's issuance of the SEQRA negative declaration was not an act that itself inflicts actual, concrete injury.”
What’s next? It is important to note that the Appellate Division did not rule on the merits of the opposition’s challenge to the City enacting the text amendment, rather it was simply a ruling on the timing of the lawsuit. Therefore, while the City can now proceed in developing a procedure for DOT to review sidewalk café applications, they should expect further lawsuits once established.
Stroock’s Land Use and Zoning Team will continue to follow the developments relating to this issue.
