Are Dining Sheds Here to Stay?

Ingram Yuzek Gainen Carroll & Bertolotti, LLP

In response to the COVID-19 pandemic, New York City, like many other major cities, implemented measures to support its struggling restaurant industry. One prominent initiative was the introduction of dining sheds, temporary outdoor structures that allowed restaurants to serve customers while complying with social distancing guidelines. As the City has moved out from under its pandemic-era regulations, how to handle the new landscape of outdoor dining structures has been a growing question. While many still like the sheds and restaurants want to keep them, others say there is no longer a need for them. Some have raised concerns like increased noise and congestion, loss of street space, and argued that some are dilapidated, abandoned structures that are eyesores.

Just last month, in a New York Supreme County ruling, a judge declared that Mayor Eric Adams cannot repeatedly keep issuing emergency executive orders to allow the city’s outdoor dining program — including thousands of roadway sheds — to continue. The decision explained that the mayor’s ongoing issuing of orders to suspend 26 different local laws to allow outdoor dining violates the state law that “limits the permissible triggers and length of any such mayoral decrees.” The ruling concerns a community lawsuit filed last July that argued there is no longer a legal emergency justification for open restaurants now that the pandemic has waned.

Shortly after the decision, on August 16, 2023, Mayor Adams signed into law “Dining Out NYC,” a new law allowing dining sheds to be up from April to November every year starting in 2024. Under the new program, the Department of Transportation (“DOT”) will “work with partner agencies to develop rules that will establish design requirements as well as siting, material, and operations guidance.” The permanent program calls for open-air dining setups that can break down or move easily. New rules will be finalized in early 2024, at which point the DOT will provide an online application portal where restaurants can apply. Outdoor dining setups will need to comply with the permanent design requirements within 30 days of application approval.

As “Dining Out NYC” is rolled out it is important to note that these dining sheds raise a host of legal issues, including:

ADA Compliance

Accessibility has been a major concern with outdoor dining sheds. The Americans with Disabilities Act (ADA) requires public accommodations to be accessible to all, including individuals with disabilities. Many dining sheds were not initially designed with ADA compliance in mind, leading to legal challenges.

Property Rights and Conflicts

Dining sheds occupied public spaces such as sidewalks and parking spots. This raised concerns about property rights and potential conflicts with neighboring businesses. Some businesses argued that the sheds hindered their own operations or created unfair advantages for competitors. Legal disputes over property rights and equitable use of public space ensued.

Noise and Nuisance Complaints

Increased outdoor dining brought with it heightened noise levels and an increased presence of rodents in NYC, which led to complaints from residents living near restaurants. Balancing the economic interests of restaurants with the quality of life for residents became a contentious issue. City officials will have to address noise and rat mitigation efforts as they work on the regulations for “Dining Out NYC.”

As the City moves forward with “Dining Out NYC,” it will be essential for the City to address these legal complexities to ensure that outdoor dining remains a viable and inclusive option for New Yorkers while respecting the rights and interests of all those it impacts. Finding a balance between supporting local business and maintaining the urban fabric of the City will be an ongoing legal and policy challenge.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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