The Future of Open Restaurants Is Somehow Still Wide Open

The sheds, well, they’ve seen a lot.

For three summers, two winters, and through snow, rain, and wind, through 100 degrees of temperature fluctuation in our city’s ever-more freakish climate, they’ve been the savior of the city’s restaurant scene, expanding table service to sidewalks and streets. They’ve let restaurateurs massively expand their seating capacity, and they’ve let people who would otherwise be wary of dining indoors during a raging pandemic enjoy a (mostly) carefree bite. By the restaurant industry’s estimates, they’ve saved at least 100,000 jobs. 

But the writing has been on the plywood, graffitied wall for some time—last year, the City Council voted to essentially end Open Restaurants in its current incarnation. Even though the initial vote was billed as making Open Restaurants permanent, that was never going to be the case at all. Instead, a series of regulations would put the Open Restaurants program much more in line with the City’s pre-pandemic regulations—making the sheds removable, lightweight, and not remotely enclosed. The structures were going away, replaced by a program restaurants would have to pay to participate in (and some would certainly choose to just skip the program instead of paying the fee). 

These were shaping up to be the last few months when New Yorkers would see truly creative uses of extensions cords, gaze at air-conditioners hanging precariously over fake plants, or sip tea in a beautiful Paris-like cafe surrounded on both sides by giant piles of trash. The Department of Transportation announced to community boards last year that by the end of 2022, the sheds would be gone, a beautiful oddity of the pandemic times when streets were (sometimes) for people. 

In the last moments of the de Blasio administration, the City Council tried to push through the final legislation regarding Open Restaurants, which would allow a city agency to take stewardship of the program and begin to make final rules for the program. But amidst the Omicron wave, and with everyone sprinting to the exits, the legislation was never passed. 

Thus the Adams administration, and a new City Council, would take over steering through the legislation needed to continue the program past its emergency phase. 

Transition is never easy. But then the lawsuits happened. 

During the entire Open Restaurants program, started in the heady early days of the pandemic, there has been a resistance to the program by a highly motivated group of people: Many live near some of the sheds, or owned cars, and have bemoaned a general decrease in quality-of-life (and the loss of parking). They held rallies, urged the City Council not to approve the permanent Open Restaurants program, and eventually resorted to lawsuits to get the program to stop.

An October 2021 lawsuit claimed that the City didn’t do an “environmental review” when considering the permanent outdoor program—which eventually led to a judge ruling this past March that the City is required to do so. While the City appeals the ruling, it can’t move forward with legislating the permanent program, leaving the sheds intact moving forward until the lawsuit is resolved. 

However, the anti-Open Restaurants coalition isn’t satisfied. Because this week, the same people behind the environmental review lawsuit filed another lawsuit against the City, aiming to end the City’s emergency Open Restaurants program once and for all. Throwing the City and New York state’s own blasé attitude toward the raging pandemic in their faces, the lawsuit says that the emergency that enabled outdoor dining has ended—and with it, so must the emergency outdoor dining rules. The lawsuit quotes Mayor Eric Adams, who said, “The variants are going to come. I've said this before, and I'm going to say it again: We have to learn to live with COVID."

The 35 plaintiffs in the case include a few local politicians and a number of entrenched anti-shed activists, many of whom have had historic disagreements with the program. Douglas Armer, who wrote that the Open Restaurant program had turned “a pleasant city block with a healthy balance of commercial and residential use into a gritty, shanty streetscape fueled by alcohol sales,” appears to be a managing director of real estate at Blackstone. Ellen Koenigsberg, another plaintiff, was profiled last year in the New York Times, arguing the sheds were impacting her vintage clothing business. Tarya Bonner, a member of Manhattan Community Board 12 and the chair of the WaHi-Inwood Task Force On Noise, also filed an affidavit with the court. 

The lawsuit makes no mention of the plaintiff’s long-standing opposition to the program, on “quality of life” grounds.

If a judge is swayed by this argument, it’s possible that the program could end overnight, throwing thousands of people back out on the street in addition to hitting restaurants' bottom lines at a time when they’re still struggling.

“It’s very disconcerting when people say everything is fine with the restaurant industry,” said Andrew Rigie, the executive director of the New York City Hospitality Alliance. “You have a lot of restaurants that have enormous pandemic debt that are still struggling, not to mention rising food and labor costs. Outdoor dining is critically important revenue stream for their recovery.”

The rather ambitious “end of 2022” timeline set out by the DOT last year is now out the window, with a judge holding up new legislation that would make the program actually permanent. At the same time, a new judge could decide to end the program in an instant, creating a true Schrödinger's-shed situation, where they are neither living or dead. At the same time, the sheds are packed with people, during a long hot summer, where indoors does appear nice and air-conditioned, but the outdoors is even cooler.