Heavy Lifting: The Regulation of Health Establishments Under the Zoning Resolution

Zoning Therapy

For 34 years the City has required a special permit for physical culture or health establishments. This requirement burdens owners and operators of health clubs, gyms, spas and studios, even where such uses would otherwise be permitted as-of-right. With the elimination of the now-unlawful adult physical culture establishments, the purpose and usefulness of the remaining regulations place an unnecessary burden on legitimate small businesses and should be modified or eliminated entirely.

During the crime-ridden 1970s, regarded by some as the City’s nadir, the City Planning Commission enacted amendments to the Zoning Resolution distinguishing between “physical culture or health establishments” and “adult physical culture or health establishments.” As explained at the Commission’s public hearing, “zoning has proved to be the most effective tool in closing down houses of prostitution masquerading as massage parlors or physical culture establishments.” The Commission’s action, which followed a one year moratorium on physical culture or health establishments within the City, was approved by the Board of Estimate in early 1979.

Under the amendment, adult physical culture establishments were defined as “any establishment, club or business by whatever name designated which offers or advertises or is equipped or arranged so as to provide as part of its services, massages, body rubs, alcohol rubs, baths or other similar treatment, by members of the opposite sex. . . .” Excluded from this definition were medical treatments, licensed masseurs and masseuses, barbershops and beauty parlors, instruction in martial or performing arts, organized athletic activities, and physical culture establishments of the non-adult variety.

The amendment sought to eliminate adult physical culture establishments in their entirety. According to the Commission, “Thus defined, adult physical culture establishments are neither listed in any Use Group nor permitted as a special permit use; therefore such uses will not be permitted within the City of New York.”

However, the amendment did not stop there. It also created a discretionary special permit process for non-adult physical culture or health establishments, defined as “any establishment or facility . . . which is equipped and arranged to provide instruction, services, or activities which improve or affect a person’s physical condition by physical exercise or by massage.”

The Special Permit Process

PCEs are permitted only by the grant of a special permit by the Board of Standards and Appeals. To grant the special permit, the BSA must find (1) that the physical culture establishment will not impair the essential character or future use or development of the surrounding area, and (2) that such facility contains one or more enumerated characteristics of a legitimate facility, such as handball, basketball, or tennis courts; facilities for classes and instruction and programs for physical improvement, body building, weight reduction, aerobics or martial arts; or facilities for the practice of massage by licensed masseurs or masseuses.

As part of the approval process, the BSA must refer an application for a special permit to the New York City Department of Investigation for a background check of the owner, operator, and all principals having an interest in the application.

If satisfactory, the BSA may grant a special permit, including approved floor plans, for a term of up to ten years, subject to extension. The process, which involves referral to the affected Community Board and a public hearing, may take six months or more. The BSA must approve any amendment to the floor plans or change in ownership of the physical culture establishments.

Unhappy Ending?

According to the Commission’s records, a purpose of the earlier moratorium on health clubs was “to permit time to further study ways to distinguish massage parlors from other physical culture and health establishments rather than continue limitations on legitimate business enterprises.” Today, illicit massage parlors are expressly prohibited in the Zoning Resolution but the limitations on legitimate businesses continue.

In the context of the evolving fitness industry, which includes yoga, spinning, boxing, kickboxing, krav maga, Pilates, aerobics, fitness training, and many other activities, the need for regulation of legitimate physical culture establishments is questionable. While some fitness establishments have a corporate parent with deep pockets, many are small business startups. The special permit process can be lengthy and expensive, and can be a stumbling block for would-be business owners. Now that the City has risen from its nadir, it is time to reconsider the existing regulations.

Howard Goldman is a partner at GoldmanHarris LLC, a New York City land use firm.  Eugene Travers is an associate at the firm.