ROOF GARDEN ARCHITECTURE – NEW YORK CITY DEPARTMENT OF BUILDINGS ISSUES NEW ROOFTOP CODE AND ZONING GUIDELINES
Back in April of 2017, the New York City Department of Buildings (DOB) decided to crack down on roof decks, roof terraces and recreational spaces on the roofs of buildings.
Developers and building owners were up in arms. Rooftop outdoor spaces had become hugely popular for new and existing buildings. In New York’s super competitive real estate market, where both residential and commercial buildings are always trying to out do each other, prospective tenants consider these types of outdoor roof top spaces as indispensable as gyms, open floor plans and high speed internet access. The NYC roof gardens design and construction industry needed clarification.
The DOB’s action was based on unclear and outdated language from the 1961 Zoning Resolution that dealt with definition of outdoor spaces and the word `enclosed’ as it relates to a building’s floor area (FAR).
A year later, the DOB has released a set of new guidelines in conjunction with the Department of City Planning, that clarifies the issues related to these types of rooftop spaces.
I have to give the DOB credit for this one. They worked closely with the real estate industry and architectural professionals to develop these new common sense rules. The new guidelines are well thought out and clearly written. Which is more than I can say about many past DOB directives and memorandums. Which like the code and zoning resolution often seem to have been written to sow even more confusion than clarity.
For New Buildings (NB) and Alteration Type 1 filings (Alt-1), these rooftop recreational spaces need to be listed in the Certificate of Occupancy (CofO). For existing buildings, these guidelines clarify when a new CofO is required and when a regular Alteration Type 2 (Alt 2) application can be filed.
These rooftop uses will still have to comply with all the zoning, code, fire, structural, egress and accessibility requirements. But, it will all come as good news to building owners and developers, not to mention all New Yorkers. Because in addition to providing people with the benefits of sunlight and fresh air, a New York roof garden also relieves crowding in New York’s high density environment and relieve overcrowding in the city’s highly used public plazas and streets.
Kohn Architecture provides modern roof garden design and has extensive experience in designing roof decks, sky garden terraces and other types of open recreational spaces for a variety of different uses, including: Residential rooftop gardens, roof garden lighting, swimming pools, smart roof NYC program, NYC green roof, vegetated roofs, outdoor eating and drinking establishments, outdoor kitchens and open recreational spaces for office buildings.
Kick up your heels and dance! The much reviled Cabaret Law has just been repealed! But, not so fast all you disco dancers. For 91 years, this law has frustrated night club, bar, restaurant owners and patrons by creating no dancing zones throughout New York City.
But wait, not so fast. Does this really mean everyone can let their hair down and dance wherever they want to? It is more symbolic than anything else. The new law is just the first step. It establishes a Nightlife Advisory Board and an Office of Nightlife. The Board will evaluate New York City laws, rules, regulations and policies on an ongoing basis to make findings and recommendations that address common issues and trends in the nightlife industry. Their recommendations will be due in 18 months.
Even then, nothing will really change unless the City Planning Commission revises the Zoning Resolution and the Building Department revises the Building Code.
Enacted in 1926, the original law made it illegal to have an eating and drinking establishment (restaurant) with “musical entertainment, singing, dancing or other form of amusement” without a license . This created the requirement for clubs to obtain a ‘Cabaret License’ throughout the city. This license allowed either dancing, music or entertainment on the premises. The law also included the three-musician rule, which only allowed a maximum of three musicians to perform at a club without a Cabaret License. In 1971 the law was modified to also make it illegal for musicians to play wind and percussion instruments. Only piano, organ, accordion, guitar or stringed instruments were allowed to be played. The discriminatory nature of this ruling effectively prevented Jazz musicians the right to play at cabarets.
In order to obtain a Cabaret License, all applicants needed to be fingerprinted, provide extensive financial records, meet specific zoning, surveillance, physical security, fire, building, electrical, health, record keeping requirements and pay the fees associated with each compliance. As of 2016, the Department of Consumer Affairs in New York City claimed there were currently 118 cabaret licenses in a city of 25,100 licensed food service establishments.
Enforcement over the years has been selective. In the 1990’s, Mayor Rudy Guiliani used it as part of his broken windows enforcement to fine and shut down nuisance bars and supposedly improve the quality of life in New York City. Until the law was repealed, it fell under the NYC Administrative Code. 
There has also been a lot of confusion regarding the rules of what exactly defines a cabaret. According to the New York City Department of Consumer Affairs:
“A Cabaret License is required for any business that sells food and/or beverages to the public and allows patron dancing in a room, place, or space.” The original law referenced people ‘running wild in the streets.’ (Footnote)
The no dancing provision has been the main focus of the recent efforts to repeal the law. , however, the other aspects of the law which have caused confusion, had to do with music and entertainment. People were often under the impression that if they wanted to open a music or comedy club, it could be done without a Cabaret License. However under the Cabaret Law, if they served food or alcohol, had set show times, charged a cover fee, had a dressing room or allowed more than 3 performers on a stage, then they still had to obtain a Cabaret License. What further created confusion was that cabarets were only allowed in certain Zoning Districts and Use Groups. Specifically Use Groups 10 (Hotels), and 12.
Basically, urban zones fall into one of five major categories: residential, mixed residential-commercial, commercial, industrial and spatial (e. g. power plants, sports complexes, airports, shopping malls etc.). Each category can have a number of sub-categories. For example, within the commercial category there may be separate zones for small retail, large retail, office use, residential, hotels and others, while industrial may be subdivided into heavy manufacturing, light manufacturing and warehouse uses.
In New York City, there are Residential Districts – R, Commercial Districts – C, and Manufacturing Districts – M. According to the New York City Zoning Resolution, there are only certain zoning districts that allow Eating and Drinking Establishments. They are limited to Commercial & Manufacturing districts. The sub-categories are defined as uses permitted as of right or by special permit, i.e.; Use Groups 1-18.
Most Commercial & Manufacturing districts allow smaller Eating & Drinking Establishments. The most common types fall into the Use Group 6 category. They are restaurants that don’t offer entertainment or dancing. Typically they can be opened without too many complications. Additionally, if the restaurant has a seating capacity of over 75 people, it is required to have a Place of Assembly Permit, issued by the NYC Department of Buildings. This is fairly simple to acquire, as long as the space has the proper egress, life safety systems and is filed by a licensed architect. There is also an annual fee assessed by the Fire Department of New York to maintain the permit.
There are 6 different categories of Eating and Drinking Establishments listed in the NYC Zoning Resolution. Use Group 6 establishments are limited to a capacity of 200 persons, and allow entertainment, but not dancing. Before the law was repealed, a Cabaret License was required if it had set show times, cover charge, etc. The repeal did not specifically mention Use Group 6 establishments in its language. But since the whole law was repealed, it may also affect businesses in this category.
Use Group 10 are hotels with restaurants or clubs that allow entertainment and/or dancing and are only allowed in certain commercial and manufacturing districts. Under the old law, a Cabaret License was not required.
However larger restaurants or clubs with over 200 people, that have entertainment or that allow dancing, fall under Use Group 12, and are only allowed in certain commercial and manufacturing districts. This was the main category that the repeal mentions specifically. It mainly covered large night clubs that could only be located in very specific areas.
There is also a whole set of other zoning restrictions that pertain to adult establishments. However, that is not the focus of the article at this time.
Of the 6 categories for Eating and Drinking Establishments in the current zoning resolution, they all include language that references the old Cabaret Law and which zoning districts those types of establishments are allowed to be in as of right. The category with the broadest definition, states ‘Including those which provide outdoor table service or have music for which there is no cover charge and no specified showtime.’ That category falls under Use Group 6 and is allowed in most commercial districts and all manufacturing districts.
A lot of places have pushed the envelope over the years. Mostly smaller music and entertainment venues. But the sword of Damocles has always hung over their heads. Sometimes they have been lucky. If they stayed quiet and didn’t attract the wrong crowd, they ducked the radar. However, many have been targeted by the authorities, slapped with code, zoning, health and fire safety violations that have made it extremely difficult and expensive to operate. Many have closed as a result of these crack downs.
Plus because of the onerous, expensive and complicated requirements related to obtaining a Cabaret License, it didn’t make much economic sense to go through all of the trouble to get one unless it was big enough to be profitable. That’s why so few places have gone through the trouble of obtaining one. Especially with rents being what they are in New York City.
It gets tricky when you when you get into the other definitions of Eating and Drinking Establishments in the Zoning Resolution. In Use Group 6, two of the definitions include language that say dancing is not allowed. Another category in Use Group 6 allows increasing in the number of people allowed in a space. It also permits either entertainment or music, and is restricted to only certain zoning districts The last category, Use Group 12, allows for more than 200 people and ‘any capacity for dancing.’
The repeal of the Cabaret Law did not revise the New York City Zoning Resolution or the Building Codes. Many of the requirements are still there. While Int. 1652-A did repeal the Cabaret Law, it left in place and tightened up the requirements for large establishments in Use Group 12. They always required liquor licenses, had to hire certified security guards, required video surveillance and had to conform to all of the required building, health, life safety, fire and handicapped codes that originally applied to these types of establishments. The only thing it did, was repeal the requirement for the license. The restrictions on hours, noise, and public safety also still apply.
Until the zoning resolution and codes are revised, they will remain in effect as written. So far, none of the security guard or surveillance requirements has been put into law for the smaller Use Group 6 establishments yet.Granted owner/operators don’t need to get a Cabaret License from the Department of Consumer Affairs. However, they still need a liquor license, health department certification, approval from the Building Department, FDNY, etc.
How the city will enforce these regulations are still open for debate. While the new as yet appointed Mayor of Nightlife and the Nightlife Committee review the regulations and policies, legally nothing has really changed. In addition, before these rules can be changed, they have to go through a public hearing process, and then finalized and approved by the City Council. Another long and complicated process.
In the meantime, owners and operators seeking to open a club or entertainment venue should consult with a licensed professional architect and attorney to understand all of the requirements that make these businesses safe and healthy. So as not to run afoul of the city’s laws and regulations. That way paving the way for a successful and fun business that will make New York City a livelier, more attractive place for people to live and visit.
 New York City Council, Int. No.1652-A
 An Eating and Drinking Establishment is any commercial use within which food or beverages are offered for purchase, and/ or are available to, or are consumed by customers or patrons. If said establishment is either 75 or more people gathering indoors, or on the roof, or 200 or more people gathering outdoors, then a Place of Assembly Certificate of Operation (PACO) will also be required (see Place of Assembly). Eating and Drinking Establishments include, but are not limited to restaurants and cabarets.
 The NYC Building Code (BC) and the NYC Administrative Code (AC) regulate eating and drinking establishments. Among the safety issues they address: occupant load limits; exits and exit components; seating and furniture arrangements: fire alarms; sprinklers; and accessibility. Before legal operation, eating and drinking establishments must have a capacity sign and Certificate of Operation posted in a highly visible location within the space. If required by the number of occupants, approved PA plans should also be available at the site for a yearly Fire Department inspection.
 Wikipedia- New York City Cabaret Law, Cabaret licensing
 New York City Administrative Code Title 20: Consumer Affairs Chapter 2: Licenses Subchapter 20: Public Dance Halls, Cabarets and Catering Establishments
 In 2015, Brooklyn attorney and bar owner Andrew Muchmore filed a case in the United States District Court for the Eastern District of New York against the law claiming it violates the 1st and 14th amendment of The United States Constitution.
 Wikipedia, Zoning, Land Use Zoning