If you think about it, even for a moment, the city’s position did not really make much sense.
All those thousands of restaurants serving meals on the sidewalks and in the streets would have exactly zero impact on our environment, the city said, so there was no need to assess this as outdoor dining becomes permanent.
Judge Frank Nervo scoffed at that.
“Respondent’s bald assertion that no significant impact on noise or traffic is attributable to the program is arbitrary and capricious considering the plain evidence that noise complaints have increased in areas where the program has been implemented,” Nervo ruled in a case brought by various community activists.
“The consideration of environmental impacts here is not merely an abstract undertaking or municipally-provided nicety,” wrote the judge, “but warrants nothing less than a comprehensive and earnest consideration and examination of the actual impacts of the already implemented program upon the daily functioning of the City’s sidewalks and streets, as well as the impact upon locally affected residents.”
One of those locally affected residents is Sara Hobel.
“I live in Chelsea,” she said the other day. “I have personally experienced the rat explosion on 19th Street and Seventh Avenue due to these restaurant structures ... Most people are putting sand underneath the structures to support the floors. The rats are burrowing in. It is an exploding problem.”
If it sounds to you like Hobel is describing the problem with a sharper eye than your typical Chelsea pedestrian, you’d be correct.
She is executive director of the Horticultural Society of New York, which among other things works with the city Department of Transportation to tend the greenery on plazas and in the open streets program. They know a thing or two about battling rats.
What is striking about Hobel’s response to this challenge, however, is that her goal is not to restrict outdoor dining but to think bigger about its place in the overall natural environment of the city.
“Our city has so little opportunity in low income communities for any kind of measurable greening and when your building out plazas, your building out restaurant structures, you are actually adding a lot of opportunity for green space.”
Which brings us back to Judge Nervo.
The the emergency rules the city allowed during the pandemic transformed New York’s relationship to outdoor dining. From a rare and rather boutique event, disproportionately in Manhattan, outdoor dining has spread to every neighborhood and community.
It was a lifeline that saved thousands of restaurants and jobs.
The City Council is currently weighing legislation to authorize such a program permanently and the Department of Transportation would then draw up specific regulations.
Nervo ruled that before approving this permanent program, the city must prepare a full statement of the environmental impact, something it had said was not needed.
“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 declaration of its own omnipotence,” Nervo scolded the city.
Flora and Fauna
Environmental Impact Statements tend to be thought of as a way to prevent activities that will endanger public health or local flora or fauna. But there is no reason why they can’t also be the opportunity to think more broadly about how the public can live together happily with that flora and fauna (Yes, Virginia, a rat is fauna. But so is a Ground Bee. More on that in a moment).
“Wouldn’t it be terrific if there was a bigger look at all these public spaces and how are they being managed,” said Hobel.
“Looking at how to transform these not into just a nice place for somebody to have dinner, but also a nice place that might support our wildlife habitat. That might bring realistic and sustainable greening opportunities to communities that don’t have very much green.”
Speaking at a roundtable convened by the Alfresco Coalition, which is working with the city on plans for permanent outdoor dining, Hobel made it clear it wasn’t the rats but the bees she was looking to share habitat with.
Specifically, the Ground Bees that are native to the city and nest, among other places, in the planters the Horticulture society tends in plazas and streets. “We are actually providing habitats for them,” she explained.
As part of the plans for permanent outdoor dining, Hobel said the city should invest in helping communities and restaurant owners create and care for greenery as part of the designs for sidewalk and street dining, to say nothing of making sure those streets and sidewalks are well swept.
“If we cannot fund this through the city we will have inadequate structures built,” Hobel observed. “We won’t advance any of the work that we are doing on the overall environment of our city and its greening and sustainable nature – and we could if everyone put their heads together and thought about it.”
“I have personally experienced the rat explosion on 19th Street and Seventh Avenue due to these restaurant structures ... Most people are putting sand underneath the structures to support the floors. The rats are burrowing in. It is an exploding problem.” Sara Hobel, executive director, Horticultural Society of New York