Kramer Levin Naftalis & Frankel LLP

On March 9, 2021, Mayor Bill de Blasio announced a series of proposed citywide zoning text amendments intended to incentivize the creation of local grocery stores, boost transit station accessibility, and ease administrative burdens for gyms and restaurants. The proposed zoning changes are expected to enter the city’s public review process this spring or summer, which could put them on track to be approved before the end of this year.

FRESH Program Updates

The Food Retail Expansion to Support Health (FRESH) program was created in 2009 to encourage the construction of supermarkets in lower-income areas of the city that face barriers to food access. In addition to certain tax incentives, the program allows property owners to build a larger building if they provide qualifying ground-floor space for a supermarket that provides food and grocery products, including fresh produce, dairy, fruits and vegetables.

The current proposal seeks to expand the FRESH program to 11 more community districts (in addition to the 19 districts currently in the program): Bronx 8 and 9; Brooklyn 1, 2, 12 and 13; Queens 1, 3, 4 and 14; and Staten Island 1. The proposal is also expected to include guidelines to prevent oversaturation of FRESH supermarkets in any community, the elimination of the requirement to replace walls with windows where a FRESH supermarket is proposed in an existing building, and a waiver of up to 10,000 square feet of retail area from parking requirements in lower-density residential districts.

Elevate Transit: Zoning for Accessibility

In consultation with the Metropolitan Transportation Authority (MTA) and other stakeholders, the city intends to expand existing zoning requirements to increase subway station accessibility. While details remain to be seen, the proposal would require developers of projects located near stations to work with the MTA to provide station access easements for new station entrances and elevators. The proposal is also expected to expand zoning incentives for developments in high-density districts to construct station improvements that advance accessibility. Increasing station accessibility is an undeniably worthy goal, but this proposal raises questions about its impact on developments in lower-density districts where zoning incentives and/or expedited MTA review are not currently proposed.

Health and Fitness Text Amendment

Under current zoning, a special permit from the Board of Standards and Appeals is required to open exercise gyms, licensed massage therapy, martial arts studios and spas, among other health-related businesses. The process for obtaining the special permit — a public review process that can take upwards of six months to complete — has historically presented a significant barrier to opening for operators. The proposed zoning change would eliminate the special permit for exercise gyms (and possibly other uses), thereby allowing these facilities to open on an as-of-right basis subject only to the underlying zoning district regulations.

Open Restaurants

The city’s Open Restaurants program allows restaurants to place tables and chairs on the public sidewalk and roadway, subject to certain siting criteria. The program was unveiled on June 19, 2020 as a temporary measure to expand outdoor seating options. The city now seeks to make outdoor dining permanent, and has announced that it will review and remove zoning limitations that may hinder such efforts.

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