Rule status: Adopted
Effective date: March 19, 2022
Proposed Rule Full Text
Adopted Rule Full Text
Adopted rule summary:
The Department of City Planning adopts the following rule that establishes procedures for the queuing of applications to obtain certifications pursuant to the FRESH program regulations of Section 63- 00, et seq. of the New York City Zoning Resolution (“ZR”) (as amended by recently approved text amendment N 210380 ZRY) to obtain additional floor area for developments with fresh food stores.
Online comments: 1
New York City Department of City Planning
Office of the Counsel
120 Broadway, 31st Floor
New York, NY 10271
Attention: Dominick Answini
Hon. Marisa Lago:
I am submitting this testimony to respectfully ask that the City Department of Planning add additional protections to ensure the viability and sustainability of access to healthy and affordable food options in traditionally underserved areas.
It is imperative that the FRESH Program add buffer zones and market area protections to make certain that FRESH Program participants do not undercut the viability of stores that are serving at risk communities and providing essential jobs.
As a local business owner who has been investing in and serving traditionally underserved areas of our city, I know first-hand the challenges confronting access to healthy and affordable foods and the importance of sustainable job creation and economic development in these areas.
It is vitally important that the FRESH program successfully encourage investment in the areas most in need while not cannibalizing and undermining those businesses already operating in these areas. The unintended consequences of the FRESH program funding additional grocers in already served markets leads to destabilizing existing food retailers resulting in job losses and shuttered businesses in the very areas the FRESH program was designed to protect.
It is also vitally important that designated FRESH projects have a path to extricate themselves from the program when no food retailer willing to locate there has emerged. The lack of a mechanism to do this is leaving key properties in distressed areas gridlocked and languishing with no development investment possible.
Over a decade ago, New York City set out to improve access to healthy food in neighborhoods with insufficient full-service grocery stores and address the pockets of food deserts in the City. The resulting FRESH program was adopted to ease zoning requirements and allow more supermarket developments, while allowing developers to go higher and increase residential floor area above stores. Since its adoption in 2009, the program has supported the construction of 27 FRESH stores, with 17 in Brooklyn alone. Out of those 27, only 8 are occupied and open to the public.
In the spring of 2021, the Department of City Planning proposed an update to expand the FRESH food stores program. The update would expand the FRESH program to more communities across the city, specifically Brooklyn, Bronx, Queens and State Island. In an effort to prevent clustering of supermarkets, the FRESH II update includes “criteria an applicant must follow to create a new FRESH store near an existing location.” However, the saturation provision is deeply flawed, in that it only puts a limit on the reallocated residential floor area above supermarkets. “In order to prevent a saturation of FRESH supermarkets, new provisions would require that within a ½ mile radius, the sum of reallocated residential floor area shall not exceed 40,000 square feet.”
This language does not prevent saturation of grocery stores, rather only the residential floor area a developer is allowed above. It does not discourage 2 or more smaller grocery stores from building in one area or prevent clustering of grocery stores near existing non-FRESH grocery stores. It only limits construction of buildings that are bigger than what zoning permits given FRESH’s incentive.
The City’s FRESH update comes at a time where neighborhoods are battling with supermarket developments across Brooklyn and protesting zoning changes. “The proposal also comes in a period of great uncertainty about how New Yorkers’ food consumption habits will evolve after the COVID-19 pandemic. The supermarket business boomed during the pandemic as more people cooked and ate at home, though there’s some indication that boom is already subsiding.”
Policy experts have already weighed in on the FRESH program in the past and questioned its efficacy on addressing food inequity. “A 2018 analysis by the CUNY Urban Food Policy Institute found that many diet-related health indicators had barely budged since the program started, and racial disparities in fruit and vegetable consumption persisted or even worsened in that time.”
We need to make certain that the unintended consequences of a program design with the best of intentions does not seriously harm the communities it was meant to help.
Please add protections to ensure that supermarkets serving former “food deserts” remain viable and attention and resources are properly allocated to neighborhoods desperately in need of healthy and affordable food options.