Although they are geographically connected, New York and New Jersey simply could not be further apart when it comes to the status of outdoor dining.
Within hours of each other, a lawsuit was filed to end outdoor dining in New York City, while in New Jersey, the state signed off an extension of their al fresco program. The lawsuit, filed by 35 plaintiffs in New York late last month, cites a multitude of complaints ranging from excessive noise, traffic and sidewalk congestion, garbage and uncontrolled rodent populations as reasons to end the Open Restaurants program.
These conditions, the plaintiffs claim, cause them to be “unable to safely navigate the city’s streets and sidewalks, and a diminution of available parking upon which some of the petitioners depend,” according to the official complaint. The lawsuit also blames the city for allowing or lending public spaces like sidewalks or roadsides in order to make outdoor dining a permanent fixture – benefiting private businesses but making it harder for residents to continue to reside in their communities.
The New York City Council passed legislation to make outdoor dining permanent in February of this year, however this has been delayed by another lawsuit which calls for an environmental impact review.The Open Restaurant Program was launched during the beginning of the COVID-19 pandemic in order to help keep businesses afloat by allowing them to expand outdoor seating, however the lawsuit claims that “in fact, there is no public health emergency in New York City and, as shown above, there is no existing regulatory infrastructure in place tailored to respond to any such emergency.”
Some businesses, the lawsuit claims, aren’t even utilizing outdoor dining spaces for actual dining experiences.
“Now some restaurant owners are using the sheds for storage, not for outdoor dining (…) some are filled with garbage,” Brooklyn Community Board 4 Chair Robert Camacho said in an affidavit with the lawsuit. “Some are filled with garbage. Some have kids in there getting high.”
NYC Mayor Adams said in a press conference that he supports the continuation of outdoor dining which he believes has positively impacted local restaurants and bars is helping them economically recover from the pandemic.
“I’m a big supporter of outdoor dining,” Mayor Adams said. “As it has been reported previously over and over again, the nightlife is a multi-billion dollar industry. And our restaurant owners have gone through a very difficult period. Some of them are still back in their payments. And whatever I can do to help our restaurant industry that employs dishwashers, waiters, bus boys and girls, this is an important industry and it is an indicator of our city. And so the lawsuit is going to play itself out.”
However, Mayor Adams did acknowledge that if there were sufficient claims that some outdoor dining establishments or constructions were hazardous, he and his administration would look into requiring some modifications.
“I think we need to modify it because some of the outdoor dining locations have become a hazard,” said Adams. “And I think there’s a way to modify to standardize what the structure should look like, and they have to be used. It can’t be used for storage. It can’t be used for all other things. But I’m a supporter of the outdoor dining. And I believe it was a lifeline for the restaurant industry.”
Others involved in the restaurant and hospitality industry agreed with Mayor Adams, saying that ending the Open Restaurant Program would be a major mistake.
“Ending outdoor dining would be devastating for our city’s restaurant recovery, New Yorkers’ jobs and it would be a huge loss for the countless people who love dining alfresco,” said Andrew Rigie of the New York City Hospitality Alliance in a statement to amNew York on Tuesday. “The answer is not to end outdoor dining, it’s to develop a more standardized and sustainable program as we transition out of the emergency version that was launched during the pandemic.”
Coincidentally within hours, New Jersey is extended its outdoor dining options. Gov. Phil Murphy teamed up with local lawmakers to extend the state’s outdoor dining bill on Wednesday. The original bill allowed businesses with alcohol licenses to serve beverages in outdoor spaces.
“My Administration worked in collaboration with the Legislature to support the restaurant industry and their customers by expanding outdoor dining during the COVID-19 pandemic. We continue that support today by extending these expanded permissions for food and beverage establishments throughout our state,” Murphy said. “Supporting the success of our small businesses ultimately means supporting the success of our communities. Continuing this successful practice will not only benefit small business owners, but also the many patrons who have come to enjoy the atmosphere and opportunities outdoor dining offers.”
The bill extended pandemic-era permissions for restaurants, bars, distilleries, and breweries to use outdoor spaces through November 2024. The permissions were set to expire in November of this year under a previous bill. New Jersey first loosened restrictions on outdoor dining via executive order amid 2020’s indoor capacity limits — which followed shutdowns that saw eateries restricted to takeout only for months. The bill allows the use of tents, canopies, umbrellas, tables, chairs, and other fixtures on private property or adjacent spaces, like sidewalks, that have been designated by municipalities. Participating businesses still need to get approvals through municipal offices, but the extension of a restaurant or bar into an outdoor space while the law is in effect doesn’t require a zoning variance — which can take months for a business to secure, if it’s approved at all.
The bill also extends the time period for special permits allowing liquor sales in the outdoor spaces. Murphy signed the bill at Vesta Wood-Fired in East Rutherford. Both houses of the state Legislature approved it in late June. Two assembly members didn’t vote, but no legislators voted against the measure.
