Judge Rules for NYC Residents in Open Restaurants Lawsuit, Calls for Environmental Impact Review

FOR IMMEDIATE RELEASE

JUDGE FRANK NERVO CALLS NEW YORK CITY’S ACTIONS “ARBITRARY AND CAPRICIOUS” AND ORDERS A COMPLETE ENVIRONMENTAL REVIEW

The ruling effectively nullifies the City Council’s Zoning Text Amendment which would have permitted outdoor dining on nearly every street in the city.

NEW YORK, NY (March 23, 2022) The Supreme Court of the State of New York, with Judge Frank Nervo presiding, ruled in favor of 22 New Yorkers who claimed that the many negative impacts of the Open Restaurants program required an environmental review.

In a strongly worded ruling, Judge Nervo dismissed the City’s argument and rebuked its actions: “For a taxpayer supported agency to declare, in effect, the Open Restaurants Program and Outdoor Seating have no negative impact on our streets and communities because that Agency has unilaterally made that determination serves only as a thinly-veiled attempt to avoid statutory scrutiny of the program by a baseless claim of its own omnipotence.”

Today’s ruling affirms that the agency in charge, the Department of Transportation, was mistaken in its claim that there would be no negative impact to New York City neighborhoods from this program, attempting to skirt the need for proper and thorough environmental review.

The petitioners’ attorney, noted civil rights lawyer Michael Sussman, stated: "The NY State Supreme Court today affirmed the rule of law against those who would rush through programs intended to radically change this great City. Major zoning changes cannot be implemented without careful study, not pre-judgment. And, this law applies to small towns, villages and to this great City.”

The city had been moving rapidly to make the pandemic emergency outdoor dining program permanent. The City Council held a single hearing in early February and two weeks later voted to obliterate decades of zoning regulations that had prohibited outdoor dining in residential districts. The Supreme Court ruling means that the city will effectively have to start over, beginning with a thorough environmental impact review as required by state law.

“This case was about more than Open Restaurants; it was about following our land use process,” said noted city planner George M. Janes. “If an action has the potential for significant environmental impacts, those impacts have to be studied and disclosed in all projects, even those that the Mayor wants to get done quickly. I'm glad Judge Nervo agreed.”

Petitioner Deborah Gonzalez of the Lower East Side reacted to the ruling: “When our government is not doing the right thing by us we have to demand it. I’m so grateful for the Judge’s decision. Those of us who’ve lived with noise, trash, rats, and crowded streets and sidewalks for 18 months felt gaslighted when the DOT said that there were no negative impacts on our lives.”

The petitioners’ attorney Michael Sussman added: “To the extent municipal leaders do not comply with the law, the people must force the issue. An independent judiciary is critical to the rule of law and that has been made very clear today. I am proud today of the many throughout the City who have stood against lawlessness and for careful scrutiny of the impacts of open restaurants. Now, the real work begins.”

Case: KATHRYN ARNTZEN et al v. CITY OF NEW YORK: DECISION + ORDER ON MOTION

Media Contact: Leslie Clark

Email: leslie@westvillageresidents.org
Phone: 646-761-8620