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Land Use, Housing & Zoning
Health and Fitness Text Amendment proposed by the Department of City Planning
At the regularly scheduled monthly Community Board Five meeting on Thursday, July 08, 2021, the following resolution passed with a vote of 25 in favor; 0 opposed; 1 abstaining:
WHEREAS, The Department of City Planning (“DCP”) has proposed a zoning text amendment to eliminate the special permit requirement (and associated processes and limitations) for physical culture or health establishments (“PCEs”) - referred to as the Physical Culture or Health Establishments in the Zoning Resolution; and
WHEREAS, A PCE is any establishment or facility, including commercial and non-commercial clubs, which is equipped and arranged to provide instruction, services, or activities which improve or affect a person's physical condition by physical exercise or by massage (physical exercise programs include aerobics, martial arts or the use of exercise equipment); and
WHEREAS, PCEs include businesses such as gyms, martial arts studios, indoor cycling spaces, yoga studios and licensed massage therapy studios; and
WHEREAS, Under the current process, all PCEs must receive approval from the Board of Standards and Appeals (“BSA”) under a discretionary special permit process (even where such uses would otherwise be permitted as-of-right); and
WHEREAS, PCEs are only permitted in certain enumerated districts (C1-8X, C1-9, C2, C4, C5, C6, C8, M1, M2 or M3 Districts, and in certain special districts as specified in the provisions of such special district); and
WHEREAS, PCEs must undergo an extensive administrative and evaluation process that includes (i) filing a notice with the NYC Department of Building (“DOB”) in order to secure documentation that facility is a PCE requiring a special permit prior to operation; and
WHEREAS, Subsequent to receipt of said objection, PCEs must submit a comprehensive application to the BSA that includes application forms, ownership authorizations, maps (including a zoning map, radius map, and tax map), a detailed statement of facts and findings (which outlines the facts of the application and how the application meets the findings for the special permit under the zoning resolution), site photographs, plans for existing and proposed conditions, zoning and sign analyses, a surrounding property owners list, and potentially City Environmental Quality Review forms (depending upon the square footage of the PCE); and
WHEREAS, The BSA subsequently weighs applications to determine if (i) the PCE will not impair the essential character or future use or development of the surrounding area, and (ii) the PCE contains one or more enumerated characteristics of a legitimate facility (e.g., sports courts, workout or massage facilities); and
WHEREAS, The BSA evaluation process also includes (i) a referral of all applicant stakeholders (i.e., owner, operator, and all other principals) to the Department of Investigation for background checks (a requirement unique to the PCE special permit process), (ii) provision of the application to the local community board, borough president, and city council member, as well as DOB and DCP, to provide an opportunity for public input (including community board public hearings and recommendations); and
WHEREAS, Should BSA elect to grant the application (which may be subject to certain conditions), the term of the special permit is limited to the shorter of ten years or a change in ownership/operation, after which point a renewal application is required; and
WHEREAS, The evaluation process can (i) take six months or longer, (ii) necessitate the retainment of legal counsel to navigate the due diligence and oversight requirements, (iii) cost up to $50,000, and (iv) result in areas of the city that are barren of sufficient health facilities; and
WHEREAS, The Physical Culture or Health Establishments in the Zoning Resolution (i.e., the special permit process) was first established in 1979 amidst a sustained elevation of crime rates in an effort to utilize zoning to crack down on prostitution, which spas, massage parlors and gyms were often at the time used as fronts for; and
WHEREAS, The Health and Fitness Text Amendment at issue entered public review on May 19, 2021, and the community period comment period ends on July 27, 2021; and
WHEREAS, The proposed changes could apply to a range of health and fitness businesses such as gyms, martial arts studios, indoor cycling spaces, yoga studios and licensed massage therapy studios; and
WHEREAS, Gyms and spas would be allowed to open and operate in commercial and manufacturing districts around the city, similar to other neighborhood services such as restaurants, drug stores, and dry cleaners; and
WHEREAS, Licensed massage therapy studios would be allowed just as are other health care practices licensed by the State, such as physical therapy or outpatient doctors’ offices, in residential, commercial, and manufacturing districts; and
WHEREAS, Amidst a surge in commercial real estate vacancy rates, CB5 is supportive of efforts to promote the tenant supply by adding a new class of tenant in certain areas, and by reducing the barriers to entry for all potential PCE owners and operators; and
WHEREAS, The proposed amendment would help the historically fast-growing health and fitness industry, which was less able than other impacted industries to take advantage of federal stimulus programs to recover from losses associated with the pandemic, recover and again provide needed employment opportunities for New Yorkers; and
WHEREAS, As part of the interagency and administrative due diligence process, DCP has reviewed the proposed text amendment with the Mayor’s Office of Special Enforcement, the Mayor’s Office to End Gender-based Violence, local district attorneys, the NYPD, and numerous other city officials/agencies, and have encountered either support or no objections (to the extent that was communicated to the community board by DCP); and
WHEREAS, Adult physical culture establishments (i.e., facilities that offer sexual services) will continue to be non-permitted uses under the zoning resolution, separate from the special permit process; and
WHEREAS, Federal, state, and local efforts to combat human trafficking will continue uninhibited by the proposed text amendment and local survivor advocacy organizations consulted have raised no concerns about the text amendment changes; and
WHEREAS, CB5 has been and remains concerned about the obesity epidemic and other poor health outcomes across the nation and in NYC, and is supportive of efforts to promote health and wellness activities and convenient access of all communities to health and wellness facilities towards that end; therefore be it
RESOLVED, Community Board Five of Manhattan supports the proposed Health and Fitness Text Amendment.