NIMBY New Yorkers Sue City Over 'Proliferation of Outdoor Dining'

The Open Restaurants Program spared much of New York's restaurant industry from the ravages of COVID-19 shutdowns.

A group of New York City residents has sued the city to end the "proliferation of outdoor dining" that's taken place under the city's Open Restaurants Program, which expanded al fresco dining options during the COVID-19 pandemic. 

The Open Restaurants Program was launched by Mayor Bill de Blasio (D) in June 2020. In announcing the program, de Blasio noted he hoped it would allow city restaurants and bars "to maximize their customer base" and "rebound" by utilizing "certain outdoor areas, including the sidewalk, curbside[,] and street space directly in front of such restaurants [and] bars."

The program has been so successful that lawmakers have moved to make it permanent.

"The Open Restaurants program has allowed more than 10,300 restaurants citywide to offer outdoor dining by setting up tables on sidewalks, in streets and in other public spaces," The New York Times reported in December. Today, nearly 12,000 restaurants and bars participate in the program.

Without a doubt, Open Restaurants has been a lifesaver for many New York eateries. Last month, New York City restaurateur Annie Shi wrote that "the only reason that [Shi's restaurant] King is still open today" is the Open Restaurants program. Shi's not alone. As I explained in my column last week, one California restaurateur, echoing thousands of others across the state, said "pandemic rules that let him expand his restaurant's eating area outside…helped keep his business afloat during the pandemic." California has also moved to extend its successful outdoor dining rules.

This week's lawsuit, though, seeks to end New York City's similarly successful program. It claims the city failed to follow rules for approving such programs—including a mandated environmental review—and ignored zoning rules and other regulations. And it claims the program is "unleashing" a host of maladies "upon once quiet residential areas" and "is highly destructive to neighborhoods and residents."

But a closer look at the complaint suggests there's not a lot of there there. Instead, the complaint is rife with hyperbole and hackneyed complaints. 

For example, one petitioner claims the program resulted in the "removal of all constraints on outdoor restaurants and bars." It did nothing of the sort. Those bars and restaurants are still subject to oversight by the city's heavy-handed health department and other city and state agencies.

Others cited in the complaint seem merely to pine for a bygone era. They raise a host of issues that appear to have little at all to do with the city's Open Restaurants Program. For example, one petitioner says people sell drugs in front of his apartment and drink alcohol in its hallways. Another laments the fact her "street once had small 'mom and pop' many stores, and buildings were owned by individuals," but that "[n]ow large corporations own a good number of the buildings."

Several petitioners allege the program has caused the city's dining scene to grow exponentially, which seems unlikely, particularly given that more than 4,500 restaurants have closed permanently in New York City since the beginning of the pandemic.

Another complainant, Mary Ann Pizza Dennis, says that the program meant "everyone began eating outside," which has caused things in her household to spiral out of (remote) control. "Her husband watches TV very loud to try to drown out the crowd and in turn petitioner watches TV in her bedroom and tries to drown out what her husband watches," Pizza Dennis affirms in the complaint.

Others complain about noise, trash, too-narrow sidewalks, inadequate parking, and rats. If many of these New York City residents' complaints about city life sound familiar, it's because New York City residents have been complaining about pretty much the same exact things for decades. Indeed, as Gothamist notes in a report on the lawsuit, "[m]uch of the 108-page document, which was filed with the Manhattan Supreme Court, is a word cloud of common complaints: crowds; smoking; garbage; homeless people; lack of parking; rats."

I have no doubts that some of these resident complaints are valid. 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.

Smart lawmakers embraced al fresco dining as a way to help bars, restaurants, and consumers survive the pandemic. Thankfully, many have also realized that expanding outdoor dining options is a good enough idea to outlast the pandemic.