United States: New Zoning Initiatives To Promote Public Health

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The Department of City Planning (DCP) has proposed a text amendment to modify regulations relating to gyms, spas, and licensed massage therapy and other health and fitness facilities defined as Physical Culture or Health Establishments (PCEs). The proposed text amendment will remove the requirement for such facilities to receive a special permit by the Board of Standards and Appeals (BSA). Rationale for Text Amendment Over the past several years, City officials have acknowledged that special permit requirements for gyms, spas and massage studios are onerous for small businesses and may reduce the availability of health-related amenities in communities. Recent DCP studies have noted the significant time required to receive a permit — often exceeding six months — and the high costs of going through the special permit process. Since 2006, PCEs have been permitted as-of-right along commercial streets in certain Special Districts. The COVID-19 pandemic has resulted in major disruptions to gyms and fitness facilities. According to DCP, employment in this sector in New York City declined by more than 60% during the pandemic. Elimination of the PCE special permit requirement is intended to help businesses in this sector recover and provide needed health-related amenities to communities across the city. Proposed Text Amendment Under the proposed zoning text amendment, gyms and spas would be permitted in all commercial and manufacturing districts. The sole exception would be for larger gyms in C1 districts, where they would be limited to districts authorizing higher densities. Licensed massage therapy would be permitted in all residence districts except R1 and R2 districts, as well as in all commercial and manufacturing districts. The proposed text amendment would remove the BSA special permit for PCEs (ZR 73-36) and add uses currently subject to this special permit to Use Groups that are permitted as-of-right in certain zoning districts. The proposed action would categorize all facilities dedicated to physical fitness and health, limited to 10,000 square feet in floor area per establishment, as Use Group 6 and Use Group 14. These uses will be permitted as-of-right in all commercial and manufacturing districts. The action would categorize all facilities dedicated to physical fitness and health, with no limitation in floor area per establishment, as Use Group 9. These uses will be permitted as-of-right in C2, C4, C5, C6 and C8 districts; M1, M2 and M3 districts; and high-density C1 districts (C1-8, C1-9 and C1 overlays mapped with R9 or R10 districts). The proposed action would distinguish between establishments containing higher-intensity uses that have a greater potential to generate noise and those that are likely to have fewer objectionable effects. Higher-intensity uses, such as gyms involving the use of exercise machines and weights, would be subject to additional noise attenuation requirements and enclosure criteria. These uses would be required to be in completely enclosed buildings and would have to verify to the Department of Buildings prior to the issuance of a Certificate of Occupancy that the use is designed to comply with the NYC Noise Code. These additional requirements would apply to mixed-use buildings in commercial and MX districts. Other health and fitness uses, such as yoga studios and therapeutic services, would not be subject to these requirements prior to operating, but would also be subject to the NYC Noise Code. The proposed text amendment would categorize licensed massage therapy as ambulatory health care in Use Group 4A and Use Group 6B (health care office). Thus, licensed massage therapy studios would be treated in the same manner as other health care facilities, including facilities where massage therapy already occurs, such as physical therapy offices and long-term care facilities. Licensed massage therapy studios will be permitted in residence districts other than R1 and R2, as well as all commercial and manufacturing districts. Existing PCEs PCEs existing on the date of the adoption of the text amendment that were allowed pursuant to special permit by the BSA may continue under the terms and conditions established at approval and may continue after the expiration of such special permit, provided the PCE is not enlarged, expanded or otherwise changed in a manner that deviates from the special permit approval. As an alternative, existing PCEs may continue pursuant to the applicable provisions in the proposed text amendment, and may enlarge, expand or change the range of activities, in accordance with the district's regulations.

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