The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 68, 69, 70, 73 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER).

Petitioners bring this CPLR article 78 proceeding challenging a negative declaration issued by respondent City of New York (the City) related to the City's "Dining Out NYC" program.

Upon the onset of the COVID-19 pandemic, then-Governor Andrew Cuomo issued Executive Order (EO) No. 202.3, which instructed restaurants and bars in the State to cease on-premises service until further notice (NY St Cts Elec Filing [NYSCEF] Doc No. 1, petition ¶ 6). EO No. 202.38, signed June 6, 2020, allowed restaurants and bars to resume on-premises service by using public outdoor space (id., ¶¶ 7-16). Former Mayor Bill de Blasio executed several emergency executive orders (EEO) in response (id., ¶ 9). EEO No. 126 dated June 18, 2020 directed the New York City Department of Transportation (DOT) to establish an emergency temporary "Open Restaurants Program" (TOR) that allowed restaurants and bars to expand seating to outdoor spaces, such as public sidewalks and roadways^[FN1] (id., ¶¶ 8 and 10). To facilitate TOR, the City suspended several provisions of the Administrative Code of the City of New York, the Rules of the City of New York and the New York City Zoning Resolution (Zoning Resolution) (id., ¶ 11; NYSCEF Doc No. 51, Harned affirmation, exhibit B at 2-4).

On June 25, 2020, the City Council of the City of New York (the City Council) enacted Local Law No. 77 (2020) of the City of New York (Local Law 77). Local Law 77 authorized the creation of "an open restaurants program pursuant to which a food service establishment may operate a temporary outdoor dining area" (NYSCEF Doc No. 53, Harned affirmation, exhibit D). TOR required participants to complete an online self-certification application, after which each participant would be permitted to open roadway or sidewalk seating (id.). EEO No. 128, executed June 27, 2020, further "allow[ed] restaurants and bars to establish outdoor drinking and dining in whatever manner they chose, including through the use of public lands" and suspended all Zoning Resolution provisions imposing restrictions or requirements on outdoor drinking establishments (NYSCEF Doc No. 1, ¶¶ 12 and 14; NYSCEF Doc No. 52, Harned affirmation, exhibit C). Nearly 12,000 participants enrolled in TOR whereas there had been 1,224 participants in the Sidewalk Cafe Program (id., ¶ 19) and 25 active permits in the Street Seats program (NYSCEF Doc No. 50 at B-5).

On November 15, 2020, the City Council enacted Local Law 114 (2020) of the City of New York (Local Law 114) requiring DOT to establish a permanent open restaurants program (POR) to succeed and replace both TOR and the Sidewalk Cafe Program (NYSCEF Doc No. 62, ¶ 6). DOT, as the lead agency, published a 176-page environmental assessment statement (EAS) on June 18, 2021, as required by the New York State Environmental Quality Review Act (SEQRA) (ECL 8-0101 et seq.) and New York City Environmental Quality Review (CEQR) rules (62 RCNY 5-01 et seq.) (NYSCEF Doc No. 50 at 1). Attachment A to the EAS, titled "Project Description," provides, in part, as follows:

"The objectives of the POR program are to:

• Create an outdoor dining program that is similar to the current temporary Open Restaurants program in robustness of access and ease of use for sidewalk and roadway [*3]cafes;

• Reduce the administrative burden to the city and to food service establishments;

• Combine the sidewalk and roadway outdoor dining programs under unified agency oversight; and

• Retain the primary public right to the street.

As mentioned, the Proposed Action requires the suspension, repeal, or amendment of certain laws and rules for implementation of the POR program. These revised rules would be promulgated under the Citywide Administrative Procedure Act (CAPA) authorized under Local Law 114 and may require additional City Council legislation in order to implement the changes to existing laws and rules as outlined above. Components of the Proposed Action associated with the zoning text amendment require discretionary approval from the New York City Planning Commission (CPC) and are subject to a public review process under section 200 of the New York City Charter. As a discretionary approval, the Proposed Action is classified as Type 1 as defined under 6 NYCRR 617.4 [(b)(3) and (b)(9)] and NYC Executive Order 91 of 1977, as amended, and is subject to an environmental review, as required by the State Environmental Quality Review Act (SEQRA), and in accordance with the City Environmental Quality Review (CEQR)" (id. at A-1).

Guided by the CEQR Technical Manual (the Manual), DOT assessed POR's potential environmental impacts in the following 19 categories: land use, zoning, and public policy; socioeconomic conditions; community facilities and services; open space; shadows; historic and cultural resources; urban design/visual resources; natural resources; hazardous materials; water and sewer infrastructure; solid waste and sanitation services; energy; transportation; air quality; greenhouse gas emissions; noise; public health; neighborhood character; and construction (id. at 6 and 11). DOT determined that POR would not result in any potentially significant environmental impacts in any category and issued a negative declaration to that effect (id.). DOT additionally determined that "[n]o other significant effects upon the environment that would require the preparation of a Draft Environmental Impact Statement are foreseeable" (id. at 12).

DOT and the New York City Department of City Planning (DCP) referred a Zoning Resolution text amendment pertaining to sidewalk cafe regulations to the New York City Planning Commission (the Planning Commission) (NYSCEF Doc No. 62, ¶ 16). The Planning Commission held a public hearing on the text amendment on October 6, 2021, and approved the application on November 15, 2021 (id., ¶ 17). The City Council approved the modifications made by the Planning Commission on February 10, 2023 (id.; NYSCEF Doc No. 55, Harned affirmation, exhibit F at 1).

Six months later, the City Council enacted Local Law 121 (2023) of the City of New York (Local Law 121) authorizing POR (NYSCEF Doc No. 56, Harned affirmation, exhibit G) now named "Dining Out NYC" (Dining Out NYC) ^[FN2] (NYSCEF Doc No. 48, answer ¶ 3). Prior to its enactment, DOT issued Technical Memorandum 001 in connection with the proposed legislation (NYSCEF Doc No. 59, Harned affirmation, exhibit J). The memorandum examined [*4]whether the proposed legislation would change the findings in the EAS and concluded that it would not (id. at 2). DOT published its rules for Dining Out NYC on October 20, 2023, and held a public hearing one month later, at which DOT received more than 650 written and verbal comments (NYSCEF Doc No. 62, ¶¶ 19-20).

On October 18, 2021, several of the petitioners herein commenced an article 78 proceeding challenging the same June 18, 2021 negative declaration, alleging that the City had violated SEQRA and CEQR^[FN3] (NYSCEF Doc No. 1, petition ¶¶ 1-2, in Matter of Arntzen v City of New York, Sup Ct, NY County, index No. 159502/2021). The court (Nervo, J.) denied the City's motion to dismiss the petition (see Matter of Arntzen v City of New York, 2022 NY Slip Op 30326[U], *3-4 [Sup Ct, NY County 2022]). Justice Nervo later granted the petition to the extent of annulling the negative declaration as arbitrary and capricious and remitted the matter to the City to complete an environmental impact review in compliance with SEQRA (see Matter of Arntzen v City of New York, 2022 NY Slip Op 30955[U], *9 [Sup Ct, NY County 2022]). The Appellate Division, First Department reversed, finding that "[g]iven the remaining legislative and administrative steps that must be taken by the City before the permanent outdoor dining program is finalized and implemented in place of the presently operating temporary program, the City's issuance of the SEQRA negative declaration was not an act that itself inflicts actual, concrete injury" (Matter of Arntzen v City of New York, 209 AD3d 404, 404 [1st Dept 2022], lv denied 39 NY3d 908 [2023], rearg denied 39 NY3d 1178 [2023]). The Court, without addressing the merits, concluded that the petition should have been dismissed as the issue was not ripe for judicial review (id.).

Petitioners, all New York City residents, commenced this proceeding on October 31, 2023, alleging that the City had ignored hundreds of complaints about TOR on noise, vermin, garbage accumulation, and crowded sidewalks (id., ¶¶ 20-21). For instance, petitioner Kathryn Arntzen (Arntzen) avers that she has resided on Cornelia Street in Manhattan for 34 years (NYSCEF Doc No. 14, Arntzen aff, ¶ 1). The Central Village Block Association (CVBA), of which Arntzen is chair, "campaigns to protect and preserve the character and quality of [the] neighborhood," which encompasses Cornelia, Jones, West 4th, Bleecker and Barrow Streets (id., ¶¶ 2 and 4). Arntzen attests that TOR has impacted her safety, quality of life and the neighborhood as there are now more than 60 outdoor operations within the CVBA (id., ¶¶ 4 and 8). Arntzen describes Cornelia Street as a "very quiet [street], with a few restaurants, a cheese shop and a tee shirt store" until TOR, where there are now 10 restaurants with a mix of roadway [*5]dining sheds and sidewalk seating (id., ¶ 3). Arntzen avers that the proliferation of new outdoor dining establishments has caused unacceptable noise levels in the neighborhood due to loud music being played and noise from diners; overflowing garbage bins and stacked garbage bags; outdoor sheds blocking buildings, curbs, and roadway access for emergency vehicles and delivery trucks; an explosion in the rat population; and increased sidewalk and roadway congestion due to the presence of restaurant patrons, dining sheds and outdoor tables placed on narrow sidewalks (id., ¶¶ 5-6 and 7-10). The other petitioners described similar issues in their affidavits (NYSCEF Doc Nos. 15-42).

Petitioners maintain that the negative declaration was not rationally based and was fundamentally flawed for two reasons: (1) the City miscalculated TOR's extent and (2) the City failed to take a hard look at TOR's effects on noise, health, sanitation, traffic, parking and community character, all of which carry over into POR (NYSCEF Doc No. 1, ¶¶ 29-31 and 38).

Plaintiff's first expert, George M. Janes, AICP (Janes), an urban planner, avers that DOT used flawed assumptions in preparing the EAS and that DOT should have utilized the environmental impacts from TOR as a model, since they overlap with those from POR (NYSCEF Doc No. 9, Janes aff, ¶¶ 1, 5, 8-9 and 26). Janes opines that noise complaints received by 311 between June 1, 2021 and October 6, 2021 increased by 143% when compared to the same period in 2019, and that percentage rose in areas where TOR participants operated (id., ¶¶ 10-11). Given that POR will increase available outdoor seating from 193 linear miles to 524 miles (id., ¶ 29), POR would likely introduce noise in residential neighborhoods where the Sidewalk Cafe Program did not previously operate (id., ¶ 32). Janes opines that the EAS failed to consider impacts on parking, since restaurant patrons will "simply seek parking elsewhere, often in unmetered spaces customarily used by residents," and on pedestrian volume and congestion, where outdoor dining will reduce the space available for pedestrians to traverse sidewalks (id., ¶¶ 13-14). Janes further opines that POR will generate more trash and that trash from POR-participants will compete with pedestrians for sidewalk or roadway space (id., ¶ 15). Janes concludes that only an environmental review will disclose POR's impacts and potential mitigation measures (id., ¶ 20).

Their second expert, Micki McGee (McGee), a sociology professor at Fordham University, opines that POR will continue the negative impacts from TOR, such as "sidewalk and roadway congestion, blocked access for emergency vehicles, unmitigated noise both night and day, sanitation and related vermin problems, and changes in the character of residential neighborhoods, particularly to those with a significant density of restaurants and bars" (NYSCEF Doc No. 10, McGee aff, ¶¶ 1, 8, 24-25, 27 and 41). Complaints about noise increased during the pandemic, and the Environmental Protection Agency (EPA) has found that noise can cause stress-related illnesses, sleep disruption and other problems (id., ¶ 28). McGee further attests that in July 2021, City Council Speaker Corey Johnson's staff determined that 93% of outdoor dining sites within Community Board 2 in Manhattan were not compliant with TOR and opines that "[t]here is no reason to imagine compliance will improve under POR" (id., ¶ 11). McGee challenges the City's mitigation measures, particularly with respect to: (1) enforcement; (2) trash and rodent problems; and (3) seasonal dining sheds (id., ¶¶ 31-33, 40-43).

The first cause of action alleges the City violated SEQRA and CEQR by failing "to take a hard look at critical environmental factors like noise, traffic and parking impact, sanitation, and community character" (NYSCEF Doc No. 1, ¶ 436). As a result, the City's adoption of the negative declaration was arbitrary and capricious (id., ¶ 438). The second cause of action alleges [*6]the City "engaged in pre-judgment," thereby rendering its determination arbitrary and capricious (id., ¶¶ 440-442). Petitioners seek an order annulling the negative declaration; enjoining the City from acting on the negative declaration; requiring the City to complete an environmental impact statement; preliminarily and permanently enjoining further implementation of Local Law 121; directing the City to require the dismantling of outdoor dining sheds and facilities that were "grandfathered" by the Local Law's allegedly illegal enactment; and an award of fees and costs.

The City interposed three defenses in its answer. The first defense alleges that the claims lacked merit (NYSCEF Doc No. 48, ¶ 185). The second asserts that the City's actions were "legal, proper, reasonable, and in conformity with all applicable laws and regulations, and were neither arbitrary nor capricious" (id., ¶ 186). The third alleges that the City fully complied with SEQRA (id., ¶ 187). The City proffers affidavits from Craven, DOT's Assistant Commissioner of Office of Cityscape & Franchises (NYSCEF Doc No. 62, ¶ 1), and Ahmed, the Director of the Office of Project Analysis/City Environmental Quality Review of the Traffic Engineering and Planning Unit within DOT's Division of Transportation Planning and Management (NYSCEF Doc No. 63, ¶ 1).

Craven avers that, unlike TOR, Dining Out NYC establishes a license and revocable consent scheme that imposes "more stringent administrative safeguards for noise and sanitation, increased public participation requirements, and more stringent licensing requirements" (NYSCEF Doc No. 62, ¶¶ 22-24). Among other changes, Dining Out NYC requires participants to retain a licensed pest control expert and to maintain their dining setups free from debris, graffiti, vermin, and unsanitary conditions; bans fully enclosed outdoor dining; establishes minimum distance clearances for streetscape fixtures, minimum clear path requirements for sidewalks, and a 15-foot emergency travel lane upon consultation with the New York City Fire Department; prohibits sound amplification; and mandates adherence to the New York City Noise Code (id., ¶¶ 23 and 29-32). DOT, local Community Boards, Borough Presidents, City Council members and, where necessary, the Landmarks Preservation Commission (LPC), review each application (id., ¶¶ 24-28). Sidewalk dining applications may result in public hearings if the Community Board recommends denying an application or recommends significant changes (id., ¶ 25). City Council can also trigger a public hearing (id.) Public hearings are mandated on all applications for roadway dining (id., ¶ 26).

Ahmed avers that DOT, as the lead agency under Rules of City Planning (62 RCNY) §§ 5-03 and 5-05, together with consultants AECOM and AKRF, Inc., conducted the review guided by the 2020 Manual (NYSCEF Doc No. 63, ¶¶ 6-7 and 18-19). The review looked at screening thresholds in 19 impact categories for existing conditions; a future scenario with no action (the No Action Condition), which meant resuming the Sidewalk Cafe Program; and a future scenario with Dining Out NYC (the With Action Condition) (id., ¶¶ 10, 23 and 25). DOT also developed a "Reasonable Worst Case Development Scenario" (RWCDS) for the No Action and With Action Conditions (id., ¶ 24). DOT identified eight impact categories that required further technical analyses (id., ¶ 20), evaluated them and issued the negative declaration.

"SEQRA's fundamental policy is to inject environmental considerations directly into governmental decision making" (Matter of Merson v McNally, 90 NY2d 742, 750 [1997] [internal quotation marks and citation omitted]); see also ECL 8-0103). Thus, "agencies [must] determine whether the actions they directly undertake, fund or approve may have a significant impact on the environment, and, if it is determined that the action may have a significant adverse [*7]impact, prepare or request an environmental impact statement" (6 NYCRR 617.1 [c]).

An environmental impact statement (EIS)^[FN4] is required when the lead agency determines the proposed action "may include the potential for at least one significant adverse environmental impact" (6 NYCRR 617.7 [a] [1]; ECL 8-0109 [2]; Matter of Chinese Staff & Workers' Assn. v Burden, 19 NY3d 922, 923-924 [2012]), quoting Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 364 [1986] ["[a]n agency's 'initial determination . . . under SEQRA and CEQR is whether an EIS [environmental impact statement] is required, which in turn depends on whether an action may or will not have a significant effect on the environment'"]). Conversely, an EIS is not required where the agency "determines either that there will be no adverse environmental impacts or that the identified adverse environmental impacts will not be significant" (6 NYCRR 617.7 [a] [2]). "If the agency finds that no significant adverse effects will occur, then it adopts a 'negative declaration' and the SEQRA process comes to an end"^[FN5] (Matter of South Bronx Unite! v New York City Indus. Dev. Agency, 115 AD3d 607, 607 n 1 [1st Dept 2014], lv denied 24 NY3d 908 [2014]; see also Matter of Chinese Staff & Workers' Assn., 19 NY3d at 924; 6 NYCRR 617.3 [c] [1]). "[A] negative declaration is properly issued where . . . 'the agency has made a thorough investigation of the problems involved and reasonably exercised its discretion'" (Matter of Elizabeth St. Garden, Inc. v City of New York, 42 NY3d 992, 995 [2024], quoting Matter of Spitzer v Farrell, 100 NY2d 186, 190 [2003]). Because strict compliance is required (see Matter of Merson, 90 NY2d at 750), a negative declaration must be nullified if the agency fails to comply with SEQRA's mandates (see Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337, 348 [2003]).

"Judicial review of a lead agency's SEQRA determination is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (Akpan v Koch, 75 NY2d 561, 570 [1990], mot to amend remittitur denied 76 NY2d 846 [1990] [internal quotation marks and citation omitted]; see also Matter of Boyd v Cumbo, 210 AD3d 762, 764 [2d Dept 2022], lv denied 39 NY3d 905 [2023]). The court's function is not to "evaluate de novo the data presented to the agency" (Akpan, 75 NY2d at 571), "second-guess thoughtful agency decisionmaking" (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, 232 [2007]), or "'weigh the desirability of any action or choose among alternatives'" (Matter of Elizabeth St. Garden, Inc., 42 NY3d at 994, quoting Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 416-417 [1986]). Indeed, "[n]othing in the law requires an agency to reach a particular result on any issue," as an agency has "considerable latitude in evaluating environmental effects and choosing among alternatives" (Matter of [*8]Jackson, 67 NY2d at 417). Rather, the court must view "an agency's substantive obligations under SEQRA . . . in light of a rule of reason" (id.). This requires the court to "review the record to determine whether the agency identified the relevant areas of environmental concern, took a 'hard look' at them, and made a 'reasoned elaboration' of the basis for its determination" (id. [citation omitted]; see also Matter of Develop Don't Destroy (Brooklyn) v Urban Dev. Corp., 59 AD3d 312, 316 [1st Dept 2009], lv denied 13 NY3d 713 [2009], rearg denied 14 NY3d 748 [2010] ["the appropriate judicial focus is not upon the agency's ultimate judgments but upon the deliberative process by which they were reached, and the touchstone is reasonableness"]). "The extent to which particular environmental factors are to be considered varies with the circumstances and the nature of the particular proposals . . . and, 'not every conceivable environmental impact, mitigating measure or alternative, need be addressed in order to meet the agency's responsibility'" (Save the Audubon Coalition v New York, 180 AD2d 348, 355 [1st Dept 1992], lv denied 81 NY2d 702 [1993] [citation omitted]).

Contrary to petitioners' contentions, DOT took the requisite hard look at the potential adverse environmental impacts associated with POR and provided reasoned elaboration for the negative declaration sufficient to overcome the presumption associated with proposed Type I actions (see Matter of Carlson v New York City Council, 227 AD3d 406, 408 [1st Dept 2024]; Matter of Boyd v Cumbo, 210 AD3d 762, 764 [2d Dept 2022], lv denied 39 NY3d 905 [2023]).

Proposed actions under SEQRA are classified as Type I, Type II or Unlisted actions (see Matter of South Bronx Unite!, 115 AD3d at 609 n 4). Type I actions are "those actions and projects that are more likely to require the preparation of an EIS than Unlisted actions" (6 NYCRR 617.4 [a]), and 6 NYCRR 617.4 [a] [1] provides that:

"the fact that an action or project has been listed as a Type I action carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS. For all individual actions which are Type I or Unlisted, the determination of significance must be made by comparing the impacts which may be reasonably expected to result from the proposed action with the criteria listed in section 617.7(c) of this Part."

6 NYCRR 617.4 (b) sets forth a non-exhaustive list of Type I actions, and 6 NYCRR 617.7 (c) (1) sets forth a non-exhaustive list of "criteria [that] are considered indicators of significant adverse impacts on the environment" and "the impacts that may be reasonably expected to result from the proposed action must be compared against the[se] criteria."

POR constitutes a Type I action, as the EAS cites 6 NYCRR 617.4 (b) (3) and 6 NYCRR 617.4 (b) (9) (NYSCEF Doc No. 50 at 1). For Type I actions, 6 NYCRR 617.6 (a) (2) requires the completion of "a full [environmental assessment form, or EAF] . . . to determine the significance of such actions."^[FN6] 6 NYCRR 617.7 (b) (1-4) mandates that the lead agency review the EAF, identify and examine relevant areas of environmental concern to determine if the proposed action may have a significant adverse environmental impact, and set forth its [*9]determination in a writing with reasoned elaboration. DOT complied with these provisions by preparing the EAS^[FN7] under the methodology set forth in the 2020 Manual (NYSCEF Doc No. 50 at A-16), as was permissible (see Matter of Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 146 AD3d 576, 579 [1st Dept 2017], affd 30 NY3d 416 [2017], rearg denied 31 NY3d 929 [2018] [lead agency "is entitled to rely on the accepted methodology set forth in the City Environmental Quality Review Technical Manual"]).

In this case, DOT analyzed POR as a "'generic action' because it would have wide application throughout the city" (NYSCEF Doc No. 50 at A-10) and the number of block faces and "non-conforming" eligible restaurants would increase compared to the Sidewalk Cafe Program (id. at A-6-A-7). DOT identified: (1) typical cases, or cases that reasonably typified POR's conditions and impacts and (2) a range of conditions, including existing conditions, the No Action Condition, and the With Action Condition (id. at A-10-A-11). DOT also prepared an RWCDS for the No Action and With Action Conditions using six prototype street and corridor configurations that may experience expanded outdoor dining under POR (id. at A-11). The prototypes reflected various street and sidewalk widths, population density and activity conditions, and per-block restaurant concentrations (id. at A-12).

Consistent with the Manual, DOT looked at 19 impact categories and determined that POR would not result in any significant environmental impacts (id. at 6-10). DOT also singled out eight categories — land use, zoning, and public policy; socioeconomic conditions; historic and cultural resources; urban design/visual resources; transportation; air quality; noise; and neighborhood character — for additional analysis and prepared detailed reports on each using 2022 as the analysis year to ascertain whether POR would result in significant future changes (NYSCEF Doc No. 63, ¶ 20). DOT provided reasoned explanations for its determinations in these eight categories before concluding that POR would not result in significant adverse environmental impacts and that no further analysis in any category was warranted.

According to the Manual, "a noise analysis determines whether a Proposed Action would result in increases in noise levels that could have a significant adverse impact on nearby sensitive receptors" (NYSCEF Doc No. 50 at H-1). DOT reasoned that outdoor seating is not a new noise receptor location as defined in the Manual, and thus, analysis of noise exposure at seating areas was not warranted (id.). DOT also concluded that POR would not alter traffic conditions when compared to the No Action Condition, and therefore, POR would not have the potential to increase noise from vehicular traffic (id.).

DOT recognized that noise emanating from outdoor dining under the No Action and With Action Conditions, specifically noise from the voices of patrons in seating areas, could result in a new stationary noise source (id.). DOT evaluated the impact from this new source against POR's noise restrictions aimed at restricting noise-producing behavior, which were significantly stronger than those under the Sidewalk Cafe Program (id. at H-2-H-3). These measures, which incorporated existing noise restrictions in the New York City Noise Code and the licensing requirements in the Administrative Code for the Sidewalk Cafe Program, included, among others, implementing a new licensee code of conduct, promulgating requirements that non-compliance could result in the loss of a license, hiring inspectors for enforcement, imposing [*10]fines and penalties, and offering alternative dispute resolution programs to resolve community noise disputes more quickly (id.; NYSCEF Doc No. 63, ¶¶ 32-35). POR also envisioned coordination between DOT and other agencies, like DEP, the Mayor's Office of Nightlife and the Office of Administrative Trials and Hearings, on enforcement (NYSCEF Doc No. 50 at H-2). DOT concluded that these measures "would guide licensed restaurants with steps to avoid the sources that have been previously observed to result in objectionable noise under the existing sidewalk cafe program and the temporary program allowing outdoor restaurant seating" (id. at H-4).

DOT assessed the potential impact of roadway seating on air quality and concluded that POR "would not result in increased traffic volumes, increased vehicle delays, or decreased vehicle speeds" and would not exceed the auto trip or heavy-duty diesel vehicle thresholds in the Manual (NYSCEF Doc No. 50 at G-1). DOT also compared the potential effects for seating within parking curb lanes with respect to carbon monoxide and fine particulate matter against the Manual's de minimis thresholds and determined that there were no significant impacts anticipated (id. at G-7-G-9; NYSCEF Doc No. 63, ¶ 45). Using representative modeling employed by the EPA, DOT assessed whether POR would increase nitrous oxide concentrations and concluded that potential concentrations in roadway seating fell below the EPA's interim thresholds (NYSCEF Doc No. 50 at G-4 and G-9-G-10).

DOT assessed whether POR "has the potential to cause a substantial increase in solid waste production that may overburden available waste management capacity" (id. at A-19). According to the Manual, projects that generate 50 tons or more of solid waste per week would result in a significant impact (id.). DOT reasoned that POR was not expected to induce new development or new restaurants that would exceed that threshold (id.). Furthermore, because POR participants employ private carting companies to remove commercial waste, DOT reasoned that POR was not expected to interfere with the handling of commercial or residential waste (id.). Restrictions on when and where seating may be situated, along with specific rules requiring participants to clean along the curbline eight feet out on either side of a roadway dining setup, would prevent debris from accumulating in areas inaccessible to street cleaning machines (id. at A-19-A-20; NYSCEF Doc No. 63, ¶¶ 48-52).

DOT analyzed POR's impact on pedestrian traffic using the six prototypes in accordance with the methodology in the Manual (NYSCEF Doc No. 50 at F-1-F-2). The EAS contains detailed charts mapping DOT's sidewalk analyses using historical peak pedestrian volume data across 113 roadway segments across the five boroughs between 2016 and 2019, variables like sidewalk width, pedestrian walking speed, and obstructions like fire hydrants, parking meters and tree wells (id. at F-2-F-9). It concluded there were no significant adverse impacts to pedestrian traffic (id. at F-8).

DOT explored the impact on residential parking in both the socioeconomic conditions and traffic categories. Socioeconomic conditions "[t]ypically . . . are brought about by the direct displacement of residents or businesses from a project site, or by introducing new development that is different from existing uses" (id. at C-1). Because POR would not directly displace residents or businesses, the EAS looked at indirect changes, such as "whether the loss of on-street parking could adversely affect residences or business; and whether the Proposed Action could alter the composition of businesses within retail corridors by making restaurants a more favorable use due to increased revenue potential" (id.). DOT concluded the impact would be minimal as follows:

"The majority of parking available along permanent Open Restaurant (POR) program-eligible corridors is metered parking. Based on a sample of corridors evaluated for each prototypical condition, approximately 75 to 100 percent of available parking spaces are metered spaces. Overall, the maximum time for a parking session for meters in New York City varies by type of vehicle and ranges from 1 to 15 hours; however, parking is priced to encourage turnover, especially in low supply/high demand areas. Additionally, in 2020, NYCDOT converted one-hour meter parking zones to two-hour parking and instituted a graduated fee rate for the second hour of parking to further encourage parking turnover. Due to residents' need for longer-term parking spots, it is unlikely that they depend on metered parking along the central corridors. Nonconforming restaurants in residential districts would typically displace no more than one to two parking spaces per block" (id. at C-3).

DOT concluded that there would be a minimal loss of parking in commercial corridors, which were "typically required to have accessory off-street parking available, making on-street parking less critical for business and visitors" (id. at C-4). Ultimately, POR's "displacement of a limited amount of largely metered parking would not significantly affect the desirability of an area as a residential neighborhood, and therefore would not result in any significant adverse impacts to socioeconomic conditions" (id.).

Nor would displaced parking jeopardize retail businesses as restaurants tended to operate on or near commercial corridors with metered parking and only 6% to 12% of retail customers arrive using personal vehicles (id.). A chart detailing the potential changes in the types of businesses in each of the six prototypes revealed that increased restaurant seating would not substantially alter the mix of neighborhood goods and services (id. at C-6-C-7). DOT additionally anticipated that some visitors may modify their shopping times or seek out alternative transportation (id. at C-4 and F-5), and under the Manual, "the availability of and access to transit alternatives weigh against a finding of significance where a parking shortfall may result" (NYSCEF Doc No. 63, ¶ 40). DOT also cited the positive effects on transport, local businesses and communities when transforming roadways into publicly accessible spaces had (NYSCEF Doc No. 50 at C-5).

In the traffic category, DOT analyzed the impact on parking by using parking regulations on POR-eligible sample corridors and sample street frontages under TOR and by estimating the amount of outdoor dining space available per prototype using conservative estimates for maximum potential curbside seating (id. at F-9-F-10). It reasoned that the potential loss of on-street parking was minimal for each prototype (id. at F-11) and under the Manual, the reduction in parking did not constitute a significant adverse impact (NYSCEF Doc No. 63, ¶ 40). To the extent petitioners complain of issues caused by double-parking (NYSCEF Doc No. 1, ¶¶ 416-417), Ahmed notes that "a SEQRA analysis presumes compliance with existing laws that will not be changed by the proposed action" and "[a]s double parking is illegal, a SEQRA analysis would not consider how such illegal activity might impact traffic conditions" (NYSCEF Doc No. 63, ¶ 42).

DOT looked at potential impacts to architectural resources like New York City Landmarks, New York City Historical Districts, and resources listed on the State and National Registers of Historic Places (NYSCEF Doc No. 50 at D1-D2). Outdoor dining in a historic district under POR would still be subject to review by the LPC (id. at D-3). Thus, DOT [*11]concluded that POR would not result in adverse impacts to historical or cultural services because outdoor seating would not damage any aspect of an architectural resource or alter the overall architectural aspect of a historic district (id.). Restrictions imposed on the size and configuration for outdoor seating also would not introduce an incompatible visual, audible or atmospheric element of a resource's setting or eliminate publicly accessible views of that resource (id. at D-4).

According to the Manual, an assessment of neighborhood character "may . . . be appropriate if the project would result in a combination of moderate effects to several elements that cumulatively may affect neighborhood character" (id. at I-1). DOT performed a screening analysis to determine the impact on neighborhood character and concluded that POR would not negatively impact land use; socioeconomic; open space; shadows; historic and cultural resources; urban design and visual resources; transportation; and noise conditions (id. at I-4).

The Manual defines "urban design" as "the totality of components that may affect a pedestrian's experience of public space" (id. at E-1). A visual resource can include views of the waterfront, public parks and the like (id.). This category analyzes the pedestrian's experience of a public space (id.), and "a preliminary assessment of urban design and visual resources is appropriate when there is the potential for a pedestrian to observe, from the street level, a physical alteration beyond that allowed by existing zoning" (id. at E-2). Taking into account the restrictions on where outdoor seating may be situated so as not to impede pedestrian and vehicular traffic, analyses of each of the six prototypes revealed that POR would not result in changes to views of visual resources or alter view corridors and could enhance streetscape features (id. at E-8).

DOT determined that POR did not require a shadows analysis because POR would not result in the construction of new structures or additions of more than 10 feet, and a shadows analysis is recommended under the Manual only if the proposed action would result in new structures or additions of 50 feet or more or if the project would affect a nearby sunlight-sensitive source (id. at A-17).

In sum, DOT's decision to issue the negative declaration was not arbitrary or capricious, an abuse of discretion, or affected by an error of law. DOT identified eight potential impact categories, which included the specific environmental concerns raised by petitioners, that required further review, took the requisite hard look at them and made a detailed, reasoned elaboration for its determination (see Matter of Carlson, 227 AD3d at 407-408; Matter of South Bronx Unite! v New York City Indus. Dev. Agency, 115 AD3d at 609).

Petitioners' experts largely challenge the merits of DOT's analysis, but "it is not the role of the court to . . . resolve disagreements among experts" (Matter of Fisher v Giuliani, 280 AD2d 13, 19-20 [1st Dept 2001]). Here, petitioners' experts opined that DOT should have examined the real-world effects of TOR when assessing POR's potential environment impacts. However, given the differences between TOR and POR, it was within DOT's discretion to evaluate POR's potential impacts using six exemplar prototypes (see Matter of Neville v Koch, 79 NY2d 416, 426 [1992] [stating that "environmental review may be conducted on a conceptual basis"]).

Janes avers in a reply affidavit that the "noise control measures describe a mitigation program for a significant adverse environmental impact on noise, significant enough to warrant such higher noise regulations than already exist in the current noise code" (NYSCEF Doc No. 66, Janes reply aff, ¶ 6). However, DOT considered and imposed measures that "clearly negate [*12]the continued potentiality of the adverse effects of the proposed action" (see Matter of Merson, 90 NY2d at 754; Matter of Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 30 NY3d 416, 424 [2017], rearg denied 31 NY3d 929 [2018]). That DOT incorporated measures that it reasoned would adequately mitigate any noise impact does not render its decision to issue the negative declaration arbitrary and capricious (see Matter of Tampone v Town of Red Hook Planning Bd., 215 AD3d 859, 862 [2d Dept 2023] ["The record demonstrates that the Planning Board considered potential impacts of the project and found them to be either insubstantial or adequately mitigated by landscaping elements incorporated into the proposal for that purpose"]). Thus, petitioners have failed to refute the rationality of DOT's conclusions (see Matter of Cedar St. Comm. v Board of Educ. of the E. Hampton Union Free Sch. Dist., 223 AD3d 738, 741 [2d Dept 2024]).

Accordingly, it is

ADJUDGED that the petition is denied and the proceeding is dismissed.