Mayor announces enforcement effort for abandoned open restaurant sheds among open restaurant program challenges
Multiple lawsuits have challenged the proposed temporary and permanent open restaurant programs. On August 18, 2022, Mayor Eric Adams announced a new enforcement initiative with multiple city agencies to remove abandoned outdoor food sheds. The City’s Temporary Open Restaurant Program has allowed restaurants to build outdoor shed structures on sidewalks and roadways to allow for safer outdoor dining during the pandemic. However, some of these structures have been abandoned by restaurants that have now closed, resulting in abandoned structures that have prompted numerous quality of life and safety complaints.
The City’s new enforcement initiative will help identify and remove abandoned sheds. Led by Deputy Mayor Meera Joshi, the initiative will be a combined task force between the transportation and sanitation departments. The parks department participated in 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 abandoned sheds or restaurant sheds that are “flagrant violators” of program guidelines. Complaint and summons data will be reviewed. Hangars marked as abandoned will be double checked as abandoned before receiving a letter of termination and subsequent removal from the hangar.
Restaurant sheds that violate program guidelines will be inspected three times. Restaurants will receive a notice to correct outstanding issues after each of the first two failed DOT inspections. After the third inspection fails, DOT will issue a termination letter and provide 48 hours before issuing a withdrawal notice. The shed will then be removed and retained by the City for 90 days, and if it is not claimed, it will be given away. At the time of the announcement, 37 sheds had been identified as gross violators of program guidelines.
New Yorkers are encouraged to contact 311 to report hangars that appear abandoned.
More 12,600 restaurants participated in the open restaurant program across the city. Although the temporary open restaurant program has been credited with saving approximately 100,000 jobs, the program has received critical to create quality of life issues such as noise, litter, rodents, lack of accessibility, and to remove public parking spaces and sidewalks in favor 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 trying to establish a permanent outdoor restoration program.
Mayor Adams said, “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 haven for rats, it can’t be a haven for illegal behavior. It has to be a place for people to eat. »
DOT Commissioner Ydanis Rodriguez said, “Open Restaurants has allowed us to reinvent the use of public space, so we won’t let a few bad actors destroy the program for thousands of restaurants that have been great partners and neighbours. We will follow Mayor Adams’ leadership in the coming months as we further develop Open Restaurants and Open Streets into effective, permanent programs.
Earlier this year, the Planning Commission approved a zoning enactment amendment for the permanent open restaurant program that removed geographic restrictions on the location of sidewalk cafes. A bill was then presented to city council that would allow the creation of the program and transfer 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 have to go through rule-making processes to set the rules for the program.
However, multiple lawsuits have challenged the proposed temporary and permanent open restaurant program. Earlier this year, a New York County Supreme Court judge ruled versus the city on the city’s failure to complete an environmental impact study for the permanent open restaurant program in violation of state law. The City had “judged in advance” that the permanent open restaurant program would not have a negative environmental impact, in part based on the temporary open restaurant program, which had been in effect for more than 18 months when the modification of the zoning text was adopted in February. 2022. The decision halts the implementation of the zoning enactment change and would require the city to go back and complete the entire environmental review process.
Another lawsuit filed last month by 35 townspeople challenged the ongoing temporary open restaurant program, saying it “is not a public health emergencyto justify the continued extension of emergency executive orders that allow the temporarily open restaurant program to operate, citing the end of other COVID-19 related programs and restrictions. The petitioners also claimed that the open restaurant program has resulted in noise, litter, rodents and other nuisances. The litigation is ongoing.
At the press conference announcing the Abandoned Sheds initiative, Deputy Mayor Joshi said, “Poorly maintained and abandoned sheds are a blight on our streetscape. We are therefore focused on strengthening enforcement of abandoned hangars and the most egregiously non-compliant. They do not serve their purpose and create an environment that promotes illegal activities. They represent a dark spot on an otherwise popular and successful program. According to a recent Regional Planning Association poll, 86% of New Yorkers strongly support the Open Restaurant program. But as the mayor noted, there is a small minority who have taken legal action in an attempt to block this program. And unfortunately, that has crippled our plans to create a permanent program. So bear with us as we work through the litigation. We are confident that we will be victorious, and then we will have a permanent program.
CityEarth will continue to provide updates regarding the status of the open restaurant program as it develops.
By: Veronique Rose (Veronica is a CityLaw Fellow and a graduate of New York Law School, Class of 2018).