With Outdoor Dining Comes Outdoor Noise. What Can You Do?

https://www.nytimes.com/2020/09/26/realestate/outdoor-dining-noise.html

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Q: The bedroom window of my Upper East Side co-op apartment overlooks the rear yard of another building that has a bar on the ground floor. The bar previously used the rear yard for trash and recycling. But since restaurants reopened for outdoor dining, it has been using the space for seating, adding a lot of late night noise to the area (and my bedroom). Can a bar make any outdoor space into seating for customers?

A: As New York City restaurants move outside, so does the noise. The bar across from your apartment is probably allowed to use that space for seating, even if it wasn’t doing so before the pandemic, because the city is giving bars and restaurants leeway when it comes to outdoor dining.

The city’s guidance for outdoor dining allows bars and restaurants to set up seating on private property without a permit so long as they follow social distancing rules and serve food. Seating must provide a minimum of 15 square feet of space per person. If patrons can only access the rear yard by walking through the bar, the seating is limited to 74 people, unless the bar applied for a permit.

But even if the bar is following all the guidelines, it still has to comply with the noise code and the State Liquor Authority. If the noise is excessive, you can file a noise complaint with the State Liquor Authority and another one with the city, which will send out inspectors to measure the noise levels and possibly issue a violation. You could also request mediation, as the city provides free mediation services to resolve disputes between restaurants and their neighbors.

Noise complaints, though, are tricky to resolve. “It is difficult to get bar owners to comply with noise codes because enforcement is spotty, hard to establish, and fines are low enough to justify scoffing the law,” said Stuart M. Saft, a real estate lawyer and a partner in the Manhattan office of Holland & Knight. “This is especially true with a bar or restaurant in a rear yard.”

If the noise is affecting multiple neighbors in your building, you could, as a group, approach your co-op board and ask it to intervene on your behalf. But the board doesn’t have authority over the bar and it may not want to get involved.

“If this were a nuisance on the co-op’s property, then the co-op would have to do something about it,” said Steven D. Sladkus, a real estate lawyer and a partner in the Manhattan firm Schwartz Sladkus Reich Greenberg Atlas. “If this is emanating from elsewhere, the shareholder should not be looking to the board to address this problem.”

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