Scott Mollen

Land Use—Outdoor Seating for Restaurants, Bars and Other Establishments—NYC Ordered To Complete an Environmental Impact Review—SEQRA—City Failed To Undertake Environmental Impact Study and Elicit Public Comment for a Project That Could, Among Other Things, Involve "Unabated Noise, and Potential Safety Hazards"—Negative Declaration Was Arbitrary and Capricious—City Made "Impermissible Pre-Judgment"

This decision involved "sidewalk cafes and restaurants erected during the (COVID-19) pandemic along the streets of New York City" (City). Following executive orders issued by the State during the early stage of the pandemic, former Mayor de Blasio issued Emergency Executive Order 126 which, inter alia, directed the NYC Dep't of Transportation (DOT) "to establish and administer a program to expand seating options for restaurants, bars, and other establishments in certain outdoor areas, including on public sidewalks and curbside/street space, and otherwise suspended various zoning laws related to same…."

Following the "issuance of an environmental assessment statement (EAS), the Department of Transportation (DOT) issued a negative declaration (neg dec), concluding that the "program would have no significant effect on the environment…."

The petitioners commenced the subject Art. 78 proceeding, seeking to "annul respondent's (neg dec) finding the outdoor dining program would not significantly adversely impact the environment." They alleged that the program was a type 1 action under the NYS State Environmental Quality Review Act (SEQRA) and therefore, the respondent was required to "take a hard-look at environmental impacts, … including noise, traffic and parking, sanitation, and neighborhood character."