BY YANNIC RACK | A cross-district dispute over a sidewalk cafe application on lower Fifth Ave. is heating up after the City Council approved it last week, despite fierce opposition from Councilmember Rosie Mendez and residents of her district.
On Tues., Sept. 23, Claudette restaurant, at 24 Fifth Ave., received the go-ahead from the full City Council to open a 10-table, 20-seat, unenclosed sidewalk cafe. But this had been preceded by some drama a week earlier.
Mendez, in an impassioned speech on Sept. 18, before the Council’s Land Use committee, highlighted procedural and legal concerns with the application — concerns that are echoed by residents in her district, whose western border sits just across the avenue from the cafe.
“There were many issues, including the fact that the city did not comply with its own guidelines and deadlines, and this application should have failed on that alone,” Mendez said in an interview last week. She was referring to deadlines in the application process that she said were missed in several cases.
An enclosed sidewalk cafe that existed at the site since the early 1970s was removed earlier this year. Current zoning does not actually permit sidewalk cafes on this part of Fifth Ave. However, the previous sidewalk cafe was “grandfathered,” meaning it was allowed to continue even though it didn’t comply with zoning changes.
Claudette is now arguing that the grandfathering clause should continue to apply at the location.
But the cafe’s opponents counter that the cafe was inoperative for more than two years, which would repeal its legal nonconforming use, and add that the grandfathering at this location is illegal anyway.
“I don’t think clear and convincing evidence was provided, at least to me, to make me think that a sidewalk cafe should be given,” Mendez said. “I also feel that somehow in this city we have zoning laws with so many exceptions to the exceptions.”
Claudette, which opened in May, is actually located in Councilmember Corey Johnson’s district, which is adjacent to Mendez’s. The dividing line between the two districts at this point is Fifth Ave. But on Mendez’s side of the border, residents are worried they will be just as impacted by the sidewalk cafe as if they were living in the building directly above it.
“I think the reasons for not wanting the sidewalk cafe at this location, at this point in time, are somewhat obvious because of the pristine nature of the neighborhood and the streetscape on lower Fifth Avenue,” said Neil Ritter, who lives at 25 Fifth Ave.
“Introducing that sort of activity throughout the day and into the evening was really sort of a character changer for the neighborhood,” he said.
Ritter, who is on his building’s board, added that residents had hoped for more inter-district outreach from Johnson, and specifically wanted to hear him explain his decision for supporting the application.
“Fifth Avenue divides Mendez’s and Johnson’s districts,” said John Fleischer, a resident and board member of 33 Fifth Ave. “So from what we understand in this situation, the sound travels up, so we would really be just as affected, if not more affected, than Johnson’s district.”
The cafe hasn’t opened yet, but according to Bob Gormley, Community Board 2’s district manager, it is usually only a matter of days after City Council approval until the Department of Consumer Affairs issues a license.
“This is kind of an oddball case,” Gormley said, “because everyone expects that the people who live across the street are going to file a lawsuit. So I don’t know if the D.C.A. will issue the license and then let the lawsuit go on, or if they’ll just wait and see what happens in the courts.”
The sidewalk cafe was actually proposed to C.B. 2 with 40 seats and 20 tables, but the numbers were reduced to half of that at the community board’s behest. The original plan had even more seats, 52, but this was later reduced because of a new tree pit obstructing part of the space.
“Essentially,” Gormley said, “we recommended denial unless it was found that the zoning was legal. If it was legal, we recommended that it be 10 tables and 20 chairs. In fact, that’s what the City Council approved with some additional stipulations,” Gormley said, adding that the cafe’s hours of operation were also limited.
Johnson, who isn’t on the Land Use Committee, nonetheless expressed support for the application during the Council’s review process. He cited the possibility of litigation by the restaurant should the application not be approved, which could result in an even bigger cafe.
However, some of Johnson’s reasoning doesn’t sit well with the residents across the street.
“Presumptive litigation, it seems to me, is a bad way to make decisions that fundamentally change the character of a neighborhood,” said Ritter, of 25 Fifth Ave.
In land use cases, the Council committee members usually adopt recommendations of the councilmember whose district is concerned. In the case of the Land Use Committee meeting — which voted 17 to 1 to approve Claudette’s application — most of the councilmembers mentioned that litigation was expected either way and expressed their trust that a court would settle the issue.
Councilmember David Gentile abstained, noting that, while he understood Johnson’s position, the restaurant’s representatives clearly, when they applied for their liquor license before Community Board 2’s State Liquor Authority Committee six months ago, said they would not have a sidewalk cafe.
A spokesperson for Claudette explained that “by removing the enclosed sidewalk cafe installed by previous tenants over 40 years ago, the ultimate goal of Claudette’s partners was to restore the beauty of lower Fifth Ave.
“Only subsequently did they realize that an outdoor sidewalk cafe was, in fact, a possibility and that the existing enclosed sidewalk cafe could be modified to an unenclosed sidewalk cafe within the permitted zoning. At the time of the community board liquor license approval process, Claudette was unaware that the unenclosed sidewalk cafe was possible and was therefore not planning to apply for it.”
Ritter said the boards of 25 and 33 Fifth Ave. have retained a lawyer and may litigate, but that this would be a last resort. For now, they will meet with the Department of Consumer Affairs on Fri., Oct. 3, to discuss the issues at hand.
“We plan to explore all appropriate avenue, including the potential for litigation,” Ritter said.
Fleischer, of 33 Fifth Ave., added, “What’s interesting is Johnson took the exact opposite position in a situation in Chelsea. It was pretty amazing — he didn’t even meet with us, after repeated requests to do so.”
Last month, Johnson opposed a sidewalk cafe application in Chelsea, saying he believes that “sidewalk cafes should not be located on residential blocks, unless there is grandfathered zoning.”
Johnson also added, however, that a cafe would bring a commercial feel to a residential block and that an approval would set an “unacceptable precedent for additional sidewalk cafes in more residential areas” — exactly what opponents fear in the case of Claudette.
In a letter to councilmembers before the Sept. 18 committee vote, Mendez warned that approval of the application would “open up a Pandora’s box that will allow a sidewalk cafe to exist contrary to the zoning.”
Repeated requests for comment for this article to Johnson went unanswered.
Claudette is owned by Mark Barak and Carlos Suarez. Suarez also operates two other Village restaurants, Bobo, at 181 W. 10th St., and Rosemary’s, at 18 Greenwich Ave.
In a statement, a spokesperson for the restaurant said, “Claudette is thrilled with the positive response from their neighbors, has the utmost respect for their Greenwich Village community and looks forward to continuing to serve the neighborhood.”