Appellate judges toss ruling holding up New York City’s permanent outdoor dining program

State appellate court judges ruled in favor of the city in an ongoing legal dispute about New York City’s outdoor dining program Tuesday, allowing lawmakers to forge ahead with a proposed permanent scheme for al-fresco eateries.

The panel of justices with the Supreme Court’s Appellate Division, First Department, overturned a decision by a lower court from March that found the city hadn’t properly studied negative impacts of sidewalk and curbside dining under state environmental law.

The legal eagles, in their two-page Oct. 4 decision, didn’t deny that finding, but said it came too early since the City Council has yet to pass legislation that would create the permanent program and replace the pandemic-era Open Restaurants initiative.

“Given 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,” reads the decision.

“Accordingly, the petition seeking to annul the declaration should have been dismissed as not ripe for judicial review,” the judges continued.

A Supreme Court judge in Manhattan earlier this year sided with critics of the program, ruling that the city wrongly declared the permanent outdoor dining program wouldn’t have negative impacts on noise, traffic and parking, sanitation, and neighborhood character.

The city appealed that ruling, which had put a pause Mayor Eric Adams and the City Council’s work to replace the temporary outdoor dining program launched under former Mayor Bill de Blasio with a permanent version.

The current bill from February would overhaul existing sidewalk cafe licensing and allow roadway dining “on a seasonal basis,” the latter of which would only be allowed during the warmer months, Streetsblog reported.

The Council’s Speaker Adrienne Adams said last week that she wants outdoor dining to just be on the sidewalk, instead of the street structures.

Another separate lawsuit from July aims to undo the temporary program that has allowed restaurants to build out their space over the past two years, arguing that city officials have ended other emergency COVID measures. That case still awaits a judge’s ruling.

Outdoor dining started as an emergency measure amid COVID restrictions on indoor dining, and has polled well among New Yorkers.

A spring survey by the think tank Regional Plan Association finding 86% of respondents believed it to be a success. A 2020 study by the Department of Transportation — which oversees Open Restaurants — found that 84% of Manhattanites supported using curbside space for outdoor dining.

But opponents have lamented the loss of parking spaces and criticized the initiative for attracting vermin and causing noise.

Mayor Adams celebrated the court’s dismissal Tuesday evening.

“This ruling is great news for New York City’s comeback,” Hizzoner wrote on Twitter. “The Open Restaurants program saved 100,000 jobs during the pandemic, and it’s time for a permanent outdoor dining program that will make ALL New Yorkers proud.”

Advocates with Alfresco NYC, a coalition including the RPA, the Tri-State Transportation Campaign, and the Design Trust for Public Space, echoed the praise.

“By enlivening spaces and streets in a new and exciting way, we’ve seen how repurposing streets actually improves our environmental and public health,” read the group’s statement. “We look forward to working with the Adams Administration and the City Council to find thoughtful and sustainable ways to transition Open Restaurants to a permanent city program that benefits all communities.”

The Coalition United for Equitable Urban Policy (CUEUP), an umbrella group of community organizations opposed to the outdoor dining program, whose members are among the plaintiffs in the lawsuit, indicated that they would challenge the program once the Council votes on it.

“The court’s decision merely delays the reckoning on the City’s reckless end-run around New York State’s environmental quality review law,” reads a Wednesday statement by the group. “The fight to protect our public space from privatization, to safeguard our environmental laws, and to rein in unbridled government overreach is far from over.”