Sidewalk cafe permit denied

The exterior of Calle Dao Chelsea in 2017, approximately a year prior to the application for a sidewalk cafe permit. Image Credit: Google Maps.

Owner of West 23rd Street restaurant sought to extend seating outside. In May 2018, Maxver LLC applied to the City Department of Consumer Affairs for consent to open an unenclosed sidewalk café outside of Calle Dao Chelsea, the Cuban-Chinese fusion restaurant that Maxver operates on Manhattan’s West 23rd Street. The application called for four tables, each seating two people. Consumer Affairs forwarded the application to Community Board No. 4, which, after a public hearing, unanimously voted against the application. Residents of the building that housed the restaurant opposed the sidewalk café based upon their negative experience with a previous sidewalk café at the same location. Maxver had also breached past agreements with the residents and the Community Board, including serving bottomless brunch (i.e., unlimited quantities of alcohol for a set price), despite promising not to, and by violating the condition of its liquor license that it would not apply for a sidewalk café.

Consumer Affairs nevertheless forwarded a favorable recommendation to the City Council. On November 15, 2018, the Committee on Zoning and Franchises held a public hearing and heard testimony from both sides. The Committee was told that offering bottomless brunch had resulted in loud noise, smoking, garbage, and vomiting outside of the restaurant. The residents expressed their concern that, because of the building’s external laundry room vent, the sidewalk café would extend far onto the sidewalk, blocking the flow of pedestrian traffic on the already-busy street.

The Council voted against Maxver’s application, convinced by the testimony that the restaurant had become a community nuisance and that the situation would only be exacerbated by approving the sidewalk café.

Maxver sued, arguing that the Council had acted arbitrarily and capriciously because the decision rested on neighborhood concerns rather than land use issues and compliance with zoning regulation.

Supreme Court Justice Carol R. Edmead agreed with Maxver, held that the Council’s denial of Maxver’s application was not rational because it considered only community objections and not zoning law, and ordered that Maxver be given revocable consent to establish the sidewalk café. The zoning regulation allows sidewalk cafés on the western part of 23rd Street. Judge Edmead noted that the Council had granted a sidewalk café application just a few years prior at the exact same location. The Council appealed.

The Appellate Division, First Department reversed. The court explained that, under the City’s Administrative Code, the Council retained full discretion to grant or deny revocable consent applications, and that discretion was not circumscribed by the limitations imposed on administrative agencies by the applicable zoning resolution. As such, the Council’s decision simply had to have a rational basis. Because the Council based the rejection on evidence of problems specific to Maxver and the restaurant’s location, the decision had a rational basis and therefore could not be disturbed by a judicial ruling.

Maxver LLC v Council of the City of N.Y., 185 A.D.3d 483 (1st Dep’t 2020).

Editor’s Note: This case was decided in July 2020, during the early months of the COVID-19 pandemic and at the early beginnings of the city’s Open Restaurants program, which suspended the application process for sidewalk cafe permits to allow restaurants to expand outdoor dining options for safer dining to sustain businesses. The government is in the process of proposing a Permanent Open Restaurants program, which would replace the existing sidewalk cafe program with a more streamlined process. While the specifics of the program are still under construction, click here for CityLand‘s continuing coverage of the Open Restaurants Program. Calle Dao Chelsea is a current participant in the Open Restaurants program, and has sidewalk and roadway cafe seating.

By: Sean Scheinfeld (Sean is a former CityLaw intern and a New York Law School graduate, Class of 2021.)


Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.