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Land Use, Housing & Zoning

February 2024, Land Use, Housing & Zoning Committee

Resolution on City of Yes for Economic Opportunity Zoning Text Amendment

At the regularly scheduled monthly Community Board Five meeting on Thursday, February 08, 2024, the following resolution passed with a vote of 23 in favor; 9 opposed; 1 abstaining:

WHEREAS, the Department of City Planning has introduced an ambitious set of Zoning Text changes that are part of the City of Yes and that aim to aggressively update the Zoning Resolution, and 

WHEREAS, the DCP certified a citywide zoning initiative known as the City of Yes for Economic Opportunity for which they conducted an EAS that resulted in a negative declaration; and 

WHEREAS, this initiative came from a panel appointed jointly by the Mayor and the Governor and named the New New York that gathered captains of industries and business leaders and produced a report titled Making New York Work for Everyone; and 

WHEREAS, the report made recommendations that guided the drafting of the City of Yes for Economic Opportunity zoning proposal; and 

WHEREAS, Manhattan Community Board Five has undertaken an extensive review, including in-depth meetings with applicable city agencies regarding the City of Yes for Economic Opportunity zoning text amendment; and

WHEREAS, the Board adopted a resolution in support of the City of Yes Zoning for Carbon Neutrality on June 8th, 2023, and anticipates further collaboration with the Department of City Planning on additional components of the City of Yes initiative; and

WHEREAS, the City of Yes for Economic Opportunity encompasses wide-ranging objectives included within its 18 components—each with varying impact levels and relevance to Manhattan Community Board Five; 

WHEREAS, the City of Yes for Economic Opportunity includes many individual text amendments;

WHEREAS, the “City of Yes for Economic Opportunity” package of text amendments is grouped under 18 proposals organized under the following four goals: 

  1. Make it Easier for Businesses to Find Space and Grow;
  2. Boost Growing Industries;
  3. Enable More Business-Friendly Streetscapes; and
  4. Decarbonize Our Waste Streams; and 

WHEREAS, the 18 components of the City of Yes for Economic Opportunity are divided among these four goals in the following manner:

UNDER GOAL A: Make it Easier for Businesses to Find Space and Grow

  1. Lift time limits to reactivating vacant storefronts 
  2. Simplify rules for business types allowed on commercial streets 
  3. Expand opportunities for production 
  4. Modernize loading dock rules so buildings can adapt over time
  5. Lift time limits to reactivating vacant storefronts 

This proposal seeks to allow nonconforming vacant storefronts in residence to legally re-tenant their space in locations where it is not already allowed. 

At present, non-conforming usage in residential districts is grandfathered, with the caveat that should a non-conforming use (for instance, a restaurant) cease to operate for a period greater than two years, that non-conforming use will no longer be permitted. This proposal seeks to remove the two-year restriction.

Community Board Five contains a relatively tiny fraction of residential districts, and therefore we do not oppose this proposal.

  1. Simplify rules for business types allowed on commercial streets 

This proposal would simplify zoning regulations to permit the same range of commercial businesses on similar commercial street types – consolidating use differences between the two kinds of zoning districts for neighborhood commercial corridors and local streets (C1 and C2 districts) and consolidating the use differences among the four kinds of zoning districts meant for centrally located areas and Central Business Districts (C4, C5, C6, and C7 districts). 

As a heavily commercial district, Community Board Five would be majorly impacted by this proposed change. However, our district has become a much more homogenous district with various uses (for instance, theaters and banking) already spread across a previously artificial demarcation between the existing East/West bifurcation dictated by the 1961 zoning configuration.

We support the simplification and homogenization contained in this proposed change. 

  1. Expand opportunities for production 

This proposal would allow many manufacturing uses in commercial zones.

We strongly oppose this proposal because we strongly support the underlying principles that originally created a division between manufacturing versus commercial zones. Over 95 percent of CB 5 is zoned commercial (which includes substantial residential units, as these are permitted as of right in commercial districts). Although the proposal discusses mitigation of noise, noxious fumes, and vibration, the enforcement surrounding these exact types of serious issues has proven completely lacking.

Additionally, CB 5 is on the cusp of a huge rezoning process, which would provide a much less blunt, more nuanced tool to deal with this set of issues as they relate to our Community Board district. Finally, we believe this proposal will negatively impact our surrounding Community Boards and those across all boroughs. Given this, we strongly oppose this proposal.

  1. Modernize loading dock rules so buildings can adapt over time 

The proposal would remove the possible requirement of providing additional loading berths for a change of use in an existing building. 

As this proposal provides businesses with additional flexibility for tenanting by not requiring additional loading berths for a change of use in an existing building, Community Board Five is in full support of this proposal. 

  1. Enable commercial activity on the upper floors 

The Proposal would update the location of use rules in mixed buildings (buildings with residences). 

In C1, C2, and C3 districts, the Proposal would allow commercial uses on the second story of all mixed buildings. In C4, C5, and C6 districts, the Proposal would allow commercial uses to occupy separate parts of the same story or to locate above residences.

When located above the ground floor, the production uses (see Proposal #3) or commercial uses that have a rated capacity (e.g. Eating or Drinking Establishments, Theaters, etc.) that are permitted on the same story as residential use, or on a story higher than that occupied by residential uses, when adjacent to residential must either separate from residences or attenuate high noise-generating uses.

Given the potential for major disruptions by noise (as noted above, enforcement of noise and other significant factors diminishing residential quality-of-life is notoriously difficult and oftentimes non-existent), Community Board Five opposes this proposed amendment, in total.

  1. Simplify and modernize the way businesses are classified in zoning 

The proposal would re-organize Use Groups and update use terms to better reflect modern commercial and industrial activities to better reflect land use categories in New York City.

Community Board Five is in total support of this reorganization of Use Groups.

UNDER GOAL B: Support Growing Industries

  1. Clarify rules to permit indoor agriculture 
  2. Give life sciences companies more certainty to grow 
  3. Support nightlife with common-sense rules for dancing and live entertainment 
  4. Create more opportunities for amusements to locate 
  5. Enable entrepreneurship with modern rules for home-based businesses 
  1. Clarify rules to permit indoor agriculture 

The proposal would clarify enclosure rules for Commercial Districts on what activities can occur outdoors and indoors. 

Because of the cost inherent in scaling indoor agriculture in New York City, cannabis is primarily, if not solely the crop that would benefit from this proposed change in use. Indoor agriculture has been proven to require tremendously disproportionate amounts of resources compared to some other non-agricultural uses…. This is in direct conflict with the stated goals of the City, as endorsed by Community Boards recently. 

As a result, Community Board Five strongly opposes this specific proposed use change. 

  1. Give life sciences companies more certainty to grow 

The proposal would simplify the use definition for a laboratory and expand the geographic applicability of the current Scientific Research and Development Facility Special Permit. 

These labs deal with live pathogens—under the jurisdiction of the NYC Department of Health—and can currently only be in manufacturing districts. A 2016 memo from NYC DOH noted the number of incidents in which labs notified and prepared to accept “dead” versions of deadly pathogens, but instead received “live” versions of these dangerous (and potentially deadly) infectious agents. Over a ten-year period, this potentially catastrophic mistake occurred 516 times. 

The following levels have been assigned to potential pathogens, which would be transferred for study in laboratory settings:

1) Agents not known to cause disease in healthy humans; 

2) Moderate risk agents known to cause disease by contact via mucous membrane exposure; (HIV, Streptococcus pneumonia, Salmonella)

3) Agents with a known ability for aerosol transmission that can cause serious or lethal infections and are indigenous or exotic in origin; (Tuberculosis, Coronavirus, Yellow Fever)

4) Agents with the highest level of danger. (Ebola, Smallpox)

Community Board Five has great concerns about bio-safety. Any lab conducting work with bio-levels number 2 through 4 must not be located in residential areas (which include commercial zones). We encourage the Department of City Planning to consider bifurcating these four levels into two groups: those in level 1, which are not known to cause harm to humans, and levels two and higher, which should be restricted to manufacturing districts—away from residential areas—and allowed only by special permit.

  1. Support nightlife with common-sense rules for dancing and live entertainment 

At present, eating or drinking establishments hosting non-musical entertainment, such as live comedy or open mic nights, are limited in zoning today to a capacity of 200 persons or fewer and limited as-of-right to C1-5:9, C2-5:8, C4, C6, C8, and M1-M3 (except M1-5B). Businesses seeking to locate in C1-1:4, C2-1:4, C3, C5, or M1-5B have to apply for a BSA Special Permit to locate (current Use Group 6C).

This proposal would remove restrictions on venues with capacities exceeding 200 (C4-C8 and M1-M3)—removing restrictions on use in a vast number of venues, allowing any method of operation, as-of-right. Proximity and density throughout mixed-used neighborhoods have already created serious problems for both residents and small businesses alike. 

Community Board Five strongly opposes this proposed change in text amendment for use.

  1. Create more opportunities for amusements to locate 

While CB5 may support small facilities such as indoor playgrounds and table tennis facilities, this proposed zoning could see the development of large theme-park-like buildings, and the zoning text should make a clear distinction between small and large venues. Furthermore, the siting of certain amusement activities such as arcades in the vicinity of schools could create a conflict. Community Board Five is opposed to this broad zoning change, and encourages DCP to not permit large venues as-of-right.

  1. Enable entrepreneurship with modern rules for home-based businesses 

Community Board Five has concerns regarding the possible negative impact this change in allowed use—specifically the potential to displace residents and increase housing costs, as well as the relative lack of protection afforded renters in this scenario (versus condo or co-op owners, who enjoy protections via enforcement of nuisance clauses for stiff penalties and swift removal of any violators from the premises). Additionally, certain uses may be in direct conflict with residential use and the permitted size increase may create a conflict with residential use and exacerbate the housing supply constraint. 

  1. Foster Vibrant Neighborhoods 
  2. Introduce corridor design rules that ensure buildings contribute to surroundings 
  3. Reduce conflicts between auto repair shops and pedestrians14. Encourage safe and sustainable deliveries with micro-distribution 
  4. Introduce corridor design rules that ensure buildings contribute to surroundings 

The proposal would activate the city’s commercial corridors by establishing clear and consistent streetscape regulations. 

Community Board Five supports this proposal.

  1. Reduce conflicts between auto repair shops and pedestrians 

This proposal does not impact CB Five.

  1. Encourage safe and sustainable deliveries with micro-distribution 

To facilitate small-scale distribution centers in commercial areas, the Proposal would include a new use called a ”Micro-Distribution Facility”. The use would be restricted to 2,500 sf in C1 and C2 districts. In C4-C7, it would be allowed up to 5k sf on the ground floor and up to 10k above. Larger establishments in these districts would require a discretionary action. This new use would replace the small-scale "moving or storage office" that was identified by DOB as the most similar use to the online grocery micro-fulfillment centers recently seen in the city. 

Community Board Five fully supports this proposal.

  1. Create Opportunities for Future Growth 

COYEO proposes to create new discretionary zoning tools to unlock future development, grow jobs and foster inclusive economic growth. 

  1. Facilitate local commercial space on residential campuses16. Create a process for allowing corner stores in residential areas 
  2. Rationalize waiver process for business adaptation and growth 
  3. Create new kinds of zoning districts for future job hubs 
  4. Facilitate local commercial space on residential campuses 

As CB 5 has no large-scale residential campuses, we have no comment on this proposal. 

  1. Create a process for allowing corner stores in residential areas 

Due to the relatively minimal impact this proposal has on CB 5, we have no comment on this proposal.

  1. Rationalize the waiver process for business adaptation and growth 

The Proposal would rationalize and supplement existing discretionary zoning tools to address gaps that prevent businesses from a path to expand or adapt. The Proposal would create a new discretionary zoning tool to allow the City Planning Commission to waive limited bulk rules.

Community Board Five opposes this proposal unless such projects are required to adhere to the existing ULURP process.

  1. Create new kinds of zoning districts for future job hubs 

The proposal would create new zoning districts for use in future mapping actions. 

This proposal would create a range of new non-residential zoning options—with new districts which will range from 2-15 FAR, address longstanding bulk and physical challenges, and come in several use-mix options: 

Community Board Five has serious concerns regarding the potential for a significant increase in bulk and massing, which must be addressed before we can fully endorse this proposal.

THEREFORE, BE IT RESOLVED, that Manhattan Community Board Five recommends denial of the application unless certain specific elements are removed or amended, and 

FURTHER, BE IT RESOLVED because the following components of the City of Yes for Economic Opportunity do not impact Community Board Five, we neither oppose nor support their enactment:

(1) Lift time limits to reactivating vacant storefronts

(13) Auto Repair

(15) Facilitate local commercial space on residential campuses 

(16) Create a process for allowing corner stores in residential areas

FURTHER, BE IT RESOLVED, that Manhattan Community Board Five supports the following components of the City of Yes for Economic Opportunity zoning text amendment:

(2) Simplify rules for business types allowed on commercial streets

(4) Modernize loading dock rules so buildings can adapt over time

(6) Simplify and modernize the way businesses are classified in zoning

(12) Introduce corridor design rules that ensure buildings contribute to surroundings

(14) Encourage safe and sustainable deliveries with micro-distribution

FURTHER, BE IT RESOLVED, that Manhattan Community Board opposes the following components of the City of Yes for Economic Opportunity zoning text amendment as they are stated, or objects to the following components unless requested modifications are reflected in the final version of the zoning text amendments:

(3) Expand opportunities for production

(5) Enable commercial activity on upper floors

(7) Expand rules to permit indoor agriculture

(8) Give life sciences companies more certainty to grow

(9) Support nightlife with new rules for dancing and live entertainment

(10) Create more opportunities for amusements to locate 

(11)Enable entrepreneurship with modern rules for home-based businesses

(17) Rationalize waiver process for business adaptation and growth: “unless such projects are required to adhere to The City of New York’s existing ULURP process.”

(18) Create new kinds of zoning districts for future job hubs: “unless concerns for potential significant increase in bulk and massing are addressed.”

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