Another NIMBY Lawsuit Seeks To End New York City Outdoor Dining Program

Several dozen NYC residents want to repeal the regulations allowing outdoor dining in the city.

A new lawsuit could end New York City's popular outdoor dining program.

The suit, which names New York City and New York State as defendants, was filed last week by around three dozen city residents in New York Supreme Court. The plaintiffs allege the city's continued operation of the Temporary Open Restaurant (TOR) program, which gave city restaurants a lifeline during the Covid pandemic by allowing them to create outdoor dining structures along the respective city streets and sidewalks where they operate, constitutes an "illegal encroachment upon [the city's] public sidewalks, streets[,] and roadways on the no longer viable ground of a 'public health emergency.'"

The plaintiffs claim the expansion of outdoor dining in the city under the TOR program has negatively impacted their quality of life. Among the various "injuries and indignities" and other "substantial externalities" the suit alleges are "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 parking upon which some petitioners depend."

In response to the new lawsuit, New York City Mayor Eric Adams, a supporter of expanded outdoor dining options, said the program is essential for the city, but admits some changes may be needed. "[W]hatever I can do to help our restaurant industry that employs dishwashers, waiters, busboys and -girls, this is an important industry and it is an indicator of our city," Adams said. "And so the lawsuit is going to play itself out. But I'm a supporter of the outdoor dining."

New York City's TOR program, authorized under state law, has been in place since June 2020, when it was implemented under then-Mayor Bill de Blasio. It was intended to reduce Covid infections while helping restaurant owners and workers survive the one-two punch of the virus and related restrictions on indoor dining.

"The program has been so successful that lawmakers have moved to make it permanent," I explained in a column last fall in which I also noted more than 12,000 city restaurants had taken advantage of the program.

But as I also explained, around two-dozen Manhattan residents sued the city last September over the TOR program. That complaint was full of shopworn city-dweller complaints about noise, parking, traffic, rats, and trash on the one hand and superfluous objections on the other hand—including the laments of one plaintive plaintiff who said in an affidavit that her street was once home to many small mom-and-pop stores but that "[n]ow large corporations own a good number of the buildings." Other sources offered similar critiques of the lawsuit. As I also reported, Gothamist referred to many of the gripes found in the lawsuit as "a word cloud of common complaints" about city living.

In March a court ruled against the city, restaurant owners, and their workers and customers. In his ruling, Judge Frank Nervo determined the city was required to conduct a study on the TOR program's environmental impacts, "including noise, traffic and parking, sanitation, and neighborhood character." Rather than conduct a study, the city had issued an environmental assessment statement, which found "no significant environmental impacts in instituting a permanent dining program." In his ruling, Judge Nervo determined the city had "failed to consider the likelihood [of] ongoing environmental impacts" from the TOR program.

The complaint filed last week alleges that while other Covid-related programs and local mask and vaccine mandates have ended over the past year or so, the TOR program continues even though "[r]estaurants, bars[,] and taverns in New York City are again now permitted to utilize their indoor capacity at pre-pandemic occupancy levels, and they are doing so throughout the city."

Is there a way forward for restaurants and others to offer outdoor dining in structures located along city streets and sidewalks? The complaint itself, which rests largely on the presumption that "no public health emergency exists and, therefore, there is no premise for TOR," may suggest one. Though New York City may not have had a current public health emergency in place when this TOR lawsuit was filed last week, exactly one day after it was filed the city declared a new public-health emergency—this one over an outbreak of monkeypox. (A public health emergency exists, the city could argue in response to the complaint, and, therefore, there is a premise for TOR.)

A better way forward would see city officials address residents' complaints—which are, again, the same ones city residents have had for generations about rats, trash, parking, and the like—while continuing to allow outdoor dining structures to be placed along sidewalks and streets.

"I have no doubts that some of these resident complaints are valid," I explained in my column on the lawsuit that was filed last fall. "But outdoor dining didn't cause most of these problems, which predate the pandemic. New York City officials can and should do a better job addressing resident concerns. But the city also can and should use existing mechanisms to deal with rats, noise, trash, and other issues."

Allowing more spaces for outdoor dining was a great idea before Covid. It still is. And it's one I hope outlives the pandemic—in New York City and beyond.