The Department of City Planning (DCP) has proposed text amendments to modify and expand the existing Food Retail Expansion to Support Health (FRESH) program under ZR 63-00 for neighborhood grocery stores and supermarkets throughout the City. The zoning text amendment application was referred out for public review by the City Planning Commission (CPC) on May 19.

The FRESH program was established in 2009 to encourage the construction of supermarkets in areas underserved by food stores. The genesis of the program was the 2008 study “Going to Market,” which found that in many neighborhoods there was a shortage of grocery stores and supermarkets. The study also found that in many neighborhoods, pharmacies, convenience stores and discount stores were the largest segment of food retailers, but that these stores typically did not sell fresh produce.

The existing program includes several incentives to encourage grocery stores selling fresh food in identified neighborhoods (Upper Manhattan, South Bronx, Central Brooklyn, and Jamaica, Queens). FRESH food stores are defined as food stores (Use Group 6) with a minimum of 6,000 square feet and with a certain percentage allocation for perishable and nonperishable food sales areas. The zoning incentives include: (i) additional residential floor area equal to the lesser of the amount of floor space of a FRESH food store or 20,000 square feet; (ii) reduced parking requirements; and (iii) allowing supermarkets with up to 30,000 square feet of floor area in M1 districts. A City Planning Commission Chair’s certification is required for a development to take advantage of the FRESH program. Certification requirements include a signed lease or commitment letter from a FRESH food operator and a deed restriction (known as a “restrictive declaration”) addressing the requirement that there be a FRESH food store use on the property. Further, by authorization, CPC may permit a building to exceed the maximum height limits applicable in its zoning district by up to 15 feet to accommodate a FRESH food store.

DCP’s Proposed Text Amendments

The text amendments modifying the FRESH program are an outgrowth of a joint hearing assessing the FRESH program by the City Council Subcommittee on Zoning and Franchises and the Committee on Economic Development and an updated DCP analysis of grocery stores and supermarkets across the City. The amendments propose an expansion and update of the program boundaries, a mechanism to prevent the overconcentration of FRESH food stores, modification to the glazing requirement for conversions involving FRESH food stores, changes to parking regulations, and clarifications of the existing text.

  • Expansion of FRESH Boundary: DCP is proposing to expand the applicability of the FRESH program to additional areas in the Bronx, Brooklyn, Queens and Staten Island.
  • Mechanism to Prevent Concentration: To prevent an overconcentration of FRESH food stores, this proposed text amendment limits the sum of additional residential floor areas resulting from the FRESH program (ZR 63-30) within a ½-mile radius to 40,000 square feet. DCP’s stated rationale is that unanticipated concentration of FRESH supermarkets has the potential not only to push existing supermarkets out of business but also to incentivize too many buildings that are bigger than what the underlying zoning permits.
  • Waive Glazing Requirements: This proposed text amendment will waive the glazing requirement for conversion projects involving FRESH food stores. Currently, the minimum transparency rule requires 50% of the ground floor-level street wall to be glazed with transparent materials. However, based on feedback from land use applicants, developers and supermarket operators, this requirement is too onerous and costly for conversions. Therefore, the proposed text amendment would eliminate the transparency requirement for conversions.
  • Reduced Parking Requirements: This proposed text amendment includes parking relief in lower-density residential zoning districts with commercial overlays. These districts typically have smaller sites, and, with underlying zoning parking requirements, applicants could find it difficult to take full advantage of the program. The proposed text amendment addresses this issue by exempting FRESH food stores with up to 10,000 square feet of floor area from providing any parking.
  • Other Clarifications: This proposed update will remove onerous requirements for deed restrictions when additional residential floor area is not requested as part of the FRESH project. The text amendment would also require that at least 6,000 square feet of FRESH food store retail space be located on the first story of a building, and it would modify the percentages of space allocated for perishable and nonperishable food.

Clients and contacts are encouraged to reach out to the Kramer Levin Land Use Department for further information regarding this proposal.

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