Council ordered to grant sidewalk cafe application

Council’s denial of permit based only on community opposition overturned. Jack Bistro, a restaurant at 80 University Place in Manhattan, applied for a sidewalk cafe permit to add outdoor seating. After a public hearing, DCA recommended approval. Community Board 2, which received the application from DCA for comment, recommended denial, citing the community’s “longstanding tradition” against outdoor seating along University Place.

When the application went to City Council, opponents reiterated that the community was against all sidewalk cafes due to the noise and crowds. They claimed that approval would create incentive for 20 other businesses along University Place to apply for sidewalk seating. At the close of testimony, Council Member Tony Avella, Chair of the Zoning & Franchises Subcommittee, pointed out that Jack Bistro had no record of complaints or violations, but added that the Council would give heavy weight to the community’s “de facto moratorium” on sidewalk cafes. The subcommittee denied the permit and the full Council followed its recommendation.

Jack Bistro filed an article 78 petition to challenge the decision, arguing that, since the zoning permitted sidewalk cafes on University Place, the Council had no authority to deny a permit based on general concerns that a sidewalk cafe would negatively impact the area. Judge Kibbie F. Payne agreed, finding that denial must be based on something more than community resistance to be rational. The court emphasized that the City and the Planning Commission determined where sidewalk cafes should be permitted, adding that no language in the zoning text made the Council’s review discretionary or allowed it to determine the best location for a sidewalk cafe. Although the Council’s resolution stated that it based the denial on “land use implications,” the court pointed out that there was no record to substantiate that statement.

Weprin v. City Council, 2007 N.Y. Slip Op. 27099 (KingsCty.Sup.Ct. March 9, 2007) (Michael A. Cardozo, Louise Lippin, for Council; Daniel J. Hornstein, for Weprin).

CITYLAND Comment: The City Council plans not to appeal the decision.

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