THE COUNCIL OF THE CITY OF NEW YORK
RESOLUTION NO. 2294
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Resolution approving with modification the decision of the City Planning Commission on Application No. N 090412 ZRY, for an amendment of the Zoning Resolution of the City of New York, relating to Article VI, Chapter 3 (Special Regulations Applying to FRESH Food Stores) concerning provisions related to the establishment of FRESH Food Stores, Citywide (L.U. No. 1244).
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By Council Members Katz and Avella
WHEREAS, the City Planning Commission filed with the Council on October 5, 2009 its decision dated September 23, 2009 (the "Decision"), pursuant to Section 201 of the New York City Charter, regarding an application submitted by the Department of City Planning for an amendment of the Zoning Resolution of the City of New York, relating to Article VI, Chapter 3 (Special Regulations Applying to FRESH Food Stores) concerning provisions related to the establishment of FRESH Food Stores (Application No. N 090412 ZRY), Citywide (the "Application");
WHEREAS, the Decision is subject to review and action by the Council pursuant to Section 197-d(b)(1) of the City Charter;
WHEREAS, upon due notice, the Council held a public hearing on the Decision and Application on October 26, 2009;
WHEREAS, the Council has considered the land use implications and other policy issues relating to the Decision and Application; and
WHEREAS, the Council has considered the relevant environmental issues and the Negative Declaration which was issued on May 19, 2009 (CEQR No. 09DCP078Y);
RESOLVED:
The Council finds that the action described herein will have no significant impact on the environment.
Pursuant to Sections 197-d and 200 of the City Charter and on the basis of the Decision and Application the Council approves the Decision with the following modification.
The Zoning Resolution of the City of New York, effective as of December 15, 1961, and as subsequently amended, is further amended as follows:
Matter in double strikeout is old, to be deleted by the Council.
Article VI
Special Regulations Applicable to Certain Areas
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Chapter 3
Special Regulations Applying to FRESH Food Stores
63-00
GENERAL PURPOSES
The provisions of this Chapter establish special regulations that guide the development of FRESH food stores to promote and protect public health, safety and general welfare. These general goals include, among others, the following purposes:
encourage a healthy lifestyle by facilitating the development of FRESH food stores that sell a healthy selection of food products;
provide greater incentives for FRESH food stores to locate in neighborhoods underserved by such establishments;
encourage FRESH food stores to locate in locations that are easily accessible to nearby residents; and
strengthen the economic base of the City, conserve the value of land and buildings, and protect the City’s tax revenues.
63-01 Definitions
FRESH food store
A “FRESH food store” is a food store #use# as listed in Section 32-15 (Use Group 6), where at least 6,000 square feet of #floor area#, or #cellar# space utilized for retailing, is utilized for the sale of a general line of food and non-food grocery products, such as dairy, canned and frozen foods, fresh fruits and vegetables, fresh and prepared meats, fish and poultry, intended for home preparation, consumption and utilization. Such retail space utilized for the sale of a general line of food and non-food grocery products shall be distributed as follows:
(a) at least 3,000 square feet or 50 percent of such retail space, whichever is greater, shall be utilized for the sale of a general line of food products intended for home preparation, consumption and utilization; and
(b) at least 2,000 square feet or 30 percent of such retail space, whichever is greater, shall be utilized for the sale of perishable goods that shall include dairy, fresh produce, and frozen foods and may include fresh meats, poultry and fish, of which at least 500 square feet of such retail space shall be designated for the sale of fresh produce.
A food store shall be certified as a #FRESH food store# by the Chairperson of the City Planning Commission, pursuant to Section 63-30 (CERTIFICATION FOR FRESH FOOD STORE).
63-02
Applicability
The regulations of all other Chapters of this Resolution are applicable, except as superseded, supplemented or modified by the provisions of this Chapter. In the event of a conflict between the provisions of this Chapter and other regulations of this Resolution, the provisions of this Chapter shall control.
The provisions of this Chapter shall apply to all #Commercial# and #Manufacturing Districts# in the following #FRESH food store# designated areas, except as provided in paragraph (c) of this Section:
(1) In the Borough of the Bronx, Community Districts 1, 2, 3, 4, 5, 6 and 7 except
portions of Community District 7, as shown on Map 1 in Appendix A of this Chapter;
In the Borough of Brooklyn, Community Districts 3, 4, 5, 8, 9, 16 and 17 except portions of Community District 8, as shown on Map 2 in Appendix A;
In the Borough of Manhattan, Community Districts 9, 10, 11 and 12 except portions of Community District 9 and 12, as shown on Maps 3 and 4 in Appendix A; and
In the Borough of Queens, the #Special Downtown Jamaica District#.
(c) The provisions of this Chapter shall not apply to the following Special Purpose Districts:
#Special Madison Avenue Preservation District#; #Special Manhattanville Mixed Use District#; #Special Park Improvement District#; and #Special Hunts Point District#.
63-10
SPECIAL USE REGULATIONS
63-11
Special Use Regulations for FRESH Food Stores in M1 Districts
In M1 Districts, the regulations of Section 42-12 (Use Groups 3A, 6A, 6B, 6D, 6F, 7B, 7C, 7D, 7E, 8, 9B, 9C, 10A, 10B, 10C, 11, 12A, 12C, 12D, 12E, 13, 14 and 16) are modified to permit #FRESH food stores# with up to 30,000 square feet of #floor area#. The provisions of this Section shall not apply where the regulations of the underlying district permit Use Group 6A food stores with #floor area# greater than 30,000 square feet.
63-12
Special Sign Regulations
All permitted #signs# shall be subject to the provisions of the #sign# regulations of the underlying districts. In addition, a #FRESH food store# shall provide signage pursuant to this Section.
A #sign# comprised of the #FRESH food store# graphic as shown on the Department of City Planning website (www.nyc.gov) shall be mounted on an exterior #building# wall adjacent to and no more than five feet from the principal entrance of the #FRESH food store#. The #sign# shall be placed so that it is directly visible, without any obstruction, to customers entering the #FRESH food store#, and at a height no less than three feet and no more than five feet above the adjoining grade. Such #FRESH food store# graphic shall be no less than 12 inches by 12 inches and no more than 16 inches by 16 inches in size and shall be fully opaque, non reflective and constructed of permanent, highly durable materials.
63-20
SPECIAL BULK AND PARKING REGULATIONS
63-21
Special Floor Area Regulations
63-211
For mixed buildings in Commercial Districts containing FRESH food stores
The provisions of Section 35-31 (Maximum Floor Area Ratio for Mixed Buildings) relating to the maximum permitted #floor area ratio# for each permitted #use# shall apply, and the provisions relating to the total of all such #floor area ratios# shall be modified in accordance with the provisions of this Section. Where all non-#residential uses# in such #mixed building# have a permitted #floor area ratio# equal to or less than that permitted for a #residential use#, the total #floor area# permitted for such #mixed building# may be increased by one square foot for each square foot of #FRESH food store floor area#, up to 20,000 square feet.
63-212
For mixed use buildings in Special Mixed Use Districts containing FRESH food stores
The provisions of Section 123-64 (Maximum Floor Area Ratio and Lot Coverage Requirements For Mixed Use Buildings) relating to the maximum permitted #floor area ratio# for each permitted #use# shall apply, and the provisions relating to the total of all such #floor area ratios# shall be modified in accordance with the provisions of this Section. Where all non-#residential uses# in such #mixed use building# have a permitted #floor area ratio# equal to or less than that permitted for a #residential use#, the total #floor area# permitted for such #mixed use building# may be increased by one square foot for each square foot of #FRESH food store floor area#, up to 20,000 square feet.
63-22
Authorization to Modify Maximum Building Height
For #mixed buildings# or #mixed use buildings# containing a #FRESH food store#, the City Planning Commission may authorize modifications to Sections 35-24 (Special Street Wall Location and Height and Setback Regulations in Certain Districts) and 123-66 (Height and Setback Regulations) to allow the applicable maximum building height to be increased by up to 15 feet, provided that the first #story# occupied by a #FRESH food store# has a minimum finished floor to finished ceiling height of 14 feet, and provided that such finished ceiling height is at least 14 feet above the #base plane# or #curb level#, as applicable.
In order to grant such authorizations, the Commission shall find that:
such modifications are necessary to accommodate a first #story# utilized as a #FRESH food store#;
the proposed modifications shall not adversely affect the essential scale and character of the adjacent buildings and any adjacent historic resources; and
the proposed modifications will not unduly obstruct access to light and air of adjacent properties.
The Commission may prescribe additional appropriate conditions and safeguards to minimize adverse effects on the character of the surrounding area.
63-23
Special Transparency Requirements
For all #FRESH food stores#, the ground floor level of the #street wall# fronting upon a principal #street# shall be glazed with materials which may include show windows, glazed transoms or glazed portions of doors. Such glazing shall occupy at least 70 percent of the area of such ground floor level #street wall#, measured to a height of 10 feet above the level of the adjoining sidewalk. No less than 50 percent of the area of such ground floor level #street wall# shall be glazed with transparent materials and up to 20 percent of such area may be glazed with translucent materials.
Furthermore, for #buildings# with frontage on two or more #streets#, the Chairperson of the City Planning Commission may certify that the glazing requirements of this Section shall only be applicable to the #street wall# fronting upon the principal #street#, as determined by the Chairperson.
In addition, the Chairperson of the City Planning Commission may, by certification, allow a reduction in the glazing requirements of this Section, provided that the Chairperson finds that such #mixed building# or #mixed use building# is a recipient of #public funding# as defined in Section 23-911 (General Definitions). Such reduced glazing may occupy no less than 50 percent of the area of such ground floor level #street wall# and shall be glazed with transparent materials.
63-24
Security Gates
All security gates installed between the #street wall# and the #street line# (after effective date of amendment), that are swung, drawn or lowered to secure #FRESH food store# premises shall, when closed, permit visibility of at least 75 percent of the area covered by such gate when viewed from the #street#.
63-25
Required Accessory Off-street Parking Spaces in Certain Districts
In C1-1, C1-2, C1-3, C2-1, C2-2, C2-3, and C4-3 Districts, the #accessory# off-street parking regulations in Section 3 6-20 (REQUIRED ACCESSORY OFF-STREET PARKING SPACES FOR COMMERCIAL OR COMMUNITY FACILITY USES) applicable to a C1-4 District shall apply to any #FRESH food store#.
In the Borough of Brooklyn, in those portions of Community District 5 located south of Flatlands Avenue and east of the centerline prolongation of Schenck Avenue, a #FRESH food store# shall provide #accessory# off-#street# parking spaces as required for #uses# in parking category B in the applicable #Commercial# and #Manufacturing Districts#.
In C8-1, C8-2, M1-1, M1-2, and M1-3 Districts, a #FRESH food store# shall provide one parking space per 1,000 square feet of #floor area# or #cellar# space utilized for retailing, up to a maximum of 15,000 square feet. The underlying off-street parking regulations in Sections 3 6-20 or 44-20 shall apply to the #floor area# or #cellar# space, in excess of 15,000 square feet, utilized for retailing in such #FRESH food store#.
The provisions of this Section shall not apply to:
In the Borough of the Bronx, portions of Community District 7 and in the Borough of Manhattan, portions of Community District 12, as shown on Map 1 in Appendix B of this Chapter;
In the Borough of Brooklyn, portions of Community District 5, as shown on Map 2 in Appendix B;
In the Borough of Brooklyn, portions of Community Districts 16 and 17, as shown on Map 3 in Appendix B; and
In the Borough of Queens, the #Special Downtown Jamaica District#.
63-30
CERTIFICATION FOR A FRESH FOOD STORE
Upon application, the Chairperson of the City Planning Commission shall certify that a food store #use# is a #FRESH food store#, provided that:
(a) drawings have been submitted to the Chairperson that clearly specify:
all #floor area# or #cellar# space utilized as a #FRESH food store#, showing in the form of an illustrative layout, that such designated space is designed and arranged to meet the requirements for food and non-food grocery products, pursuant to Section 63-01;
all #floor area# that will result from any permitted increase in #floor area#, pursuant to Section 63-21, including the location of such #floor area#;
the size, format and location of the required #sign#, pursuant to Section 63-12, including detailed information about dimensions of the #sign#, lettering, color and materials;
the location of the ground floor level #street wall# fronting upon a principal #street#, pursuant to Section 63-23;
(b) a signed lease or written commitment from the prospective operator of the #FRESH food store# has been provided in a form acceptable to the Chairperson for utilization of such #floor area# or #cellar# space and its operation as a #FRESH food store#; and
(c) a legal commitment, in the form of a declaration of restrictions has been executed, in a form acceptable to the Department of City Planning, binding upon the owner and its successor and assigns, and providing for continued utilization of all #floor area# or #cellar# space as a #FRESH food store#, the operation of which shall commence within a reasonable period following the issuance of a temporary certificate of occupancy for the #floor area# or #cellar# space to be utilized by the #FRESH food store#.
Such declaration of restrictions shall provide that the legal commitment for continued occupancy of the #floor area# or #cellar space# as a #FRESH food store# shall not apply during any:
(1) six (6) month period from the date such #floor area# or #cellar# space is vacated
by the operator, provided that the owner timely notifies the Department of City Planning of such vacancy in accordance with the requirements of the restrictive declaration; or
(2) event of force majeure, as determined by the Chairperson.
The filing and recordation of the declaration of restrictions in the Office of the City Register of the City of New York against all tax lots comprising the #FRESH food store#, and receipt of proof of recordation of such declaration in a form acceptable to the Department, shall be a precondition to the issuance of any building permit, including any foundation or alteration permit, for any #development# or #enlargement# under this Chapter.
In granting the certification, the Chairperson may specify that minor changes in store layout consistent with the definition of a #FRESH food store# in Section 63-01 shall not warrant further certification pursuant to this Section.
No later than the date on which an application for certification pursuant to this Section is first submitted, a copy of the drawings submitted pursuant to paragraph (a) of this Section shall be submitted by the applicant to the affected Community Board, which shall have 45 days to review said application. The Chairperson shall not issue a certification for an application during the Community Board review period, unless the Community Board has submitted to the Chairperson comments regarding such proposal or informs the Chairperson that the Community Board has no comments.
63-31
Requirements for Certificate of Occupancy
No certificate of occupancy shall be issued for any portion of the #development# or #enlargement# identified in the drawings submitted pursuant to paragraph (a) (2) of Section 63- 30 until a temporary certificate of occupancy has been issued for the #FRESH food store# space. No final certificate of occupancy shall be issued for any such portion of the #development# or #enlargement# identified in such drawings until the #FRESH food store# space has been completed in accordance with the drawings submitted pursuant to paragraph (a) (1) of Section 63-30 and a final certificate of occupancy has been issued for the #FRESH food store# space. The declaration of restrictions shall be noted on any temporary or final certificate of occupancy for the #building#.
63-40
CERTIFICATION FOR CHANGE OF USE OF A FRESH FOOD STORE
A #FRESH food store# for which a certification has been issued pursuant to Section 63-30 may be changed to any #use# permitted by the underlying district upon certification by the Chairperson of the City Planning Commission that such change of #use# would not create a new #non-compliance#, increase the degree of #non-compliance# of #buildings# on the #zoning lot#, or result in reduction in the number of required #accessory# off-street parking spaces under the applicable district regulations.
If a certification pursuant to this Section is granted, a notice of cancellation, in a form acceptable to the Department of City Planning, of the declaration of restrictions recorded pursuant to Section 63-30 shall be executed and recorded in the Office of the City Register of the City of New York against all tax lots comprising the former #FRESH food store#.
63-50
AUTHORIZATION FOR BULK AND PARKING MODIFICATIONS
The City Planning Commission may, by authorization, permit modifications to the #bulk# and #accessory# off-street parking requirements of the applicable zoning districts, when a change of #use# of a #FRESH food store# for which a certification has been issued pursuant to Section 63- 30, would create a new #non-compliance#, increase the degree of #non-compliance# of #buildings# on the #zoning lot#, or result in reduction in the number of required #accessory# off- street parking spaces under the applicable district regulations, provided that such #use# is permitted by the underlying districts.
In order to grant such authorization, the Commission shall find that:
due to the market conditions prevalent at the time of the application, there is no reasonable possibility that the operation of a #FRESH food store# will bring a reasonable return;
the applicant, the operator or a prior operator of such #FRESH food store# has not created, or contributed to, such unfavorable market conditions;
the applicant, the operator or a prior operator of such #FRESH food store# has undertaken commercially reasonable efforts to secure a new operator, and demonstrates to the City Planning Commission that such efforts have been unsuccessful;
any proposed #non-compliance# or increase in the degree of #non-compliance# will not be incompatible with or adversely affect adjacent #uses# including #uses# within the building; and
any reduction of required #accessory# off-street parking shall not create or contribute to serious traffic congestion and will not unduly inhibit surface traffic and pedestrian movement.
If such authorization is granted, a notice of cancellation, in a form acceptable to the Department of City Planning, of the declaration of restrictions recorded pursuant to Section 63-30, shall be executed and recorded in the Office of the City Register of the City of New York against all tax lots comprising the former #FRESH food store#. In issuing authorizations under this Section, the Commission may impose conditions and safeguards, to minimize adverse impacts on the character of the surrounding area.
63-60
COMPLIANCE
No later than June 30 of the year, beginning in the first calendar year following the calendar year in which certification was made and at three year intervals thereafter, the Chairperson shall be provided with an affidavit, in a form acceptable to the Department of City Planning, regarding compliance with the requirements of the declaration of restrictions and the regulations of this Chapter, as of a date of inspection which shall be no earlier than June 1st of the year in which the affidavit is filed. Such affidavit shall be provided by the owner(s) of the tax lot(s) on which the #FRESH food store# is located. Such affidavit shall include, without limitation.
A copy of the original #FRESH food store# certification letter and if applicable, any approval letter pertaining to any other authorization or certification pursuant to this Chapter;
A statement that the #floor area# or #cellar# space that was certified to be operated as a #FRESH food store# continues to be operated as such in accordance with the declaration of restrictions; and
Photographs documenting the condition of the #FRESH food store# at the time of inspection, sufficient to clearly show all #floor area# or #cellar# space operated as a #FRESH food store#.
Failure to comply with a condition or restriction in an authorization or certification granted pursuant this Chapter or with approved plans related thereto, or failure to submit a required compliance report, shall constitute a violation of this Resolution and may constitute the basis for denial or revocation of a building permit or certificate of occupancy, or for a revocation or such authorization or certification, and for all other applicable remedies.
APPENDIX A
FRESH FOOD STORE DESIGNATED AREAS: EXCLUDED PORTIONS
The #FRESH food store# designated areas are listed by community district and borough in Section 63-02 (Applicability) of this Chapter. Excluded portions of community districts are shown on the following maps.
APPENDIX B
REQUIRED OFF-STREET ACCESSORY PARKING EXCEPTIONS
Page 18 of 19
N 090412 ZRY
Res. No. 2294 (L.U. No. 1244)
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Page 19 of 19
N 090412 ZRY
Res. No. 2294 (L.U. No. 1244)
Adopted.
Office of the City Clerk, }
The City of New York, } ss.:
I hereby certify that the foregoing is a true copy of a Resolution passed by The Council of The City of New York on December 9, 2009, on file in this office.
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City Clerk, Clerk of The Council