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Land Use, Housing & Zoning

Re: C140087MCM – Times Square Concession

At the monthly meeting of Community Board Five on Thursday, November 14, 2013, the Board passed the following resolution with a vote of 39 in favor, 0 opposed, 1abstaining:


This application poses many questions which we do not believe have been fully answered or addressed, and therefore as a Community Board we cannot support this grant of a major concession.  Nonetheless, we seek to be constructive partners in helping to outline a different approach. 


Given the concerns raised by the Community Board and the Times Square Alliance, amongst other stakeholders, we believe a more appropriate course of action would be to withdraw this application and immediately set up a working group with representatives from the relevant city entities  – DOT, SAPO, and the Mayor's office especially -, Community Board Five, BIDs within our boundaries, the Comptroller-elect, Manhattan Borough President-elect, and the affected Council members to try to address these concerns in a more holistic fashion.


We do not believe that commercial activities and events are fundamentally at odds with public space, but nonetheless strongly assert that the balance has tipped far too much towards commercialization of these spaces with limited public benefit.    



DOT has awarded Sole Source License Agreements (agreements) to the Flatiron BID, Fashion Center BID, 34th St. Partnership and the Times Square Alliance (BIDs) among others, for the operation, management, and maintenance of the pedestrian plazas; including the right to award sponsorships, and sub-concessions intended to generate revenue for each plaza's maintenance.


While CB5 welcomes the programming of public space for entertainment, education, and philanthropic activities, it has taken a strong and consistent stance regarding the over-commercialization of our parks and public open spaces, the overcrowding of sidewalks with newsstand and other concessioners, an excess of predominantly commercial street activities.


We understand that the purpose of this application is to ensure the maintenance of the re-designed bowtie and portions of Broadway between 47th Street 53rd Street, but we believe there are more pressing issues to be addressed – how these spaces are managed and regulated more broadly, how we can ensure that these spaces are used in the manner in which they were envisioned at their conception, and finally how these spaces can serve the public need for more open space and circulation space in some of the densest parts of New York City. 


From the beginning of the creation of the Broadway plazas in Community Board Five, we have been broadly sympathetic to DOT's aim to increase the quantity and improve the quality of open space.  Our district is lucky to have many extraordinary public space stewards leading our business improvement districts and at the Department of Transportation, and we have been hopeful these plazas would be an important addition to the public space network and stand alongside some of NYC's and the world's most iconic open spaces. 


We voiced this support for the plaza program at the time of the creation of the Broadway plazas with two major caveats: 


1)      The Community Board would be consulted about on-going changes and plans and a dialogue would continue as problems or unforeseen circumstances rose during implementation. 


2)      The spaces, at their core, would serve as public open space and circulation amenities – whose primary purpose was to improve the pedestrian environment in some of the most crowded streets anywhere in the world. 


As Board member David Golab testified in 2009 speaking on behalf of the Board and the millions of pedestrians who use these streets:


"These new public plazas were created, in part, as an oasis from the congestion of traffic in our streets.  New York City, and Broadway in particular, is saturated with both traffic and commercial activity – there is no public benefit to removing one for the other."


Problems with Existing Public Plaza Program

After four years of experience, we have enough empirical evidence and experience to note that although the plaza program has been broadly successful, there is a real threat that the legacy of these open spaces will not be the expansion of the public space network but rather the commercialization of space that was intended to be public.  The success and desirability of these spaces in some ways has created a new problem that needs to be addressed. 


Although a limited number of events and commercial activities may be supportable, the vast majority of the events and commercial activity in these spaces have a limited benefit to the City of New York and to those New Yorkers who work, live, and visit and are the people who use these spaces. 


Increasingly what we have heard from a broad-based coalition – residents, workers, employers, and increasingly the BIDs themselves – is that the number of events and the way these events are regulated is problematic. 


The central challenge has been that although DOT has created a new kind of open space, the regulations have not been revised to reflect how these spaces should be managed.  Much of Broadway, for instance, continues to be mapped as a street and therefore under the jurisdiction of the CECM/SAPO, whose mandate is not aligned with the public space goals of these spaces. 


As is stated in the first paragraph of the agency description on their website, the goal of CECM is to maximize NYC's ability to accommodate events including "marketing opportunities."


"New York City is the premier venue and backdrop for special events, cultural activities, marketing opportunities and film shoots. To ensure that the City maximizes its ability to properly accommodate these uses, it's imperative that City agencies coordinate their policies, procedures and permitting operations that pertain to the management of events in public spaces.[1] (Emphasis added)"   


Although this may have been a laudable goal in the 1970s or 1980s when NYC was in search of an image makeover, the challenge now is increasingly to protect public space from being overrun by the increasing number of event producers who want to locate their events in some of the most well-known places in the world.  The number of commercial events since the creation of these public plazas has dramatically increased, and the Super Bowl in February of 2014 will totally take over these spaces and represents the culmination of this trend.   


Another fundamental problem is that the fee model for these events deprives the City of much needed revenue.  It is the Community Board's understanding from city officials that SAPO permitted events are charged as much as it costs the City to process the applications.  For instance, an event, which requires 100 hours of city employee time (police, sanitation, administration), is charged for those 100 hours. 


This framework means that the City doesn't generate much, if any, revenue for the commercialization of these spaces.  Instead, we think a market-based pricing approach, which seeks to charge potential event organizers the amount they would be willing to pay through a competitive bidding process would ensure that these events pay the market value of using public property for a private event.  This would require changes to the City rules that govern these spaces, but we believe a change is essential to ensuring that the public captures something close to the real value of this leasing of public space.  There is a risk that these spaces become ATM machines for the City so any market pricing needs to be considered within the context of restrictions on the number and duration of events.     


The arbitrary jurisdictional boundaries present another challenge.  Father Duffy Square, the triangle within Times Square with the TKTS booth, is mapped as parkland while the remainder of the bowtie is mapped as street.  Although separated by only a few feet, these regulatory distinctions mean that events are regulated differently with different fee structures and noticing provisions and criteria.  It's not only the event permitting that matters in this regard.  Regulations on selling tickets, vending, and newsstands among other issues differ between the "park" and the "street."  With the reconstruction of Times Square, which will create a public space with one uniform paving material and at the same grade (no curb), this distinction between parkland and street will be entirely meaningless to the average pedestrian.  If the existing regulations remain in place after the reconstruction of the bowtie, we will have two different standards, with two different fee structures, and two different processes -- and applicants will simply choose the easiest and cheapest route instead of having the City and other stakeholders determining the best place for an event.   


As a Community Board, we have seen as recently as last week event applicants who apply to occupy the park space in Duffy Square – applications which are usually referred to the Community Board because they're in parkland – and then withdrawing their applications and electing to go through SAPO instead to hold their event in the DOT plaza which requires no public review.       


For all of the above reasons and more, CB5 strongly believes that a significant overhaul of the regulatory framework for these public spaces is needed to address these new realities. Otherwise, they will cease to function as the public spaces they were envisioned to be.  


CB5 believes three approaches in particular deserve further discussions.  Each of these approaches has different pros and cons and we look forward to discussing other alternatives as well. 


1)      Leaving these spaces mapped as streets, but revising the rules to put further restrictions on these spaces as outlined below. 


2)      Leaving these spaces mapped as streets but requiring a DOT permitting process instead of SAPO process with accompanying changes to the rules.  DOT is in many ways in a better position to see the value of these spaces as public spaces rather than simply event locations to be coordinated.              


3)      Mapping these DOT public plazas as parkland – as is the case with Father Duffy Square.  Although there may be administrative challenges if the Parks Department were to manage event regulation, we believe their mission is better aligned with the public spaces goals of these plazas.  Some have also proposed the idea of creating a unique designation for these spaces or modifying the "public place" designation to more appropriately apply to these spaces.    


Regardless of the best entity to and map designation new rules need to be put in place.  The kinds of revisions to the rules governing these spaces should include:


1)      A restriction on the number of events and the duration of the events including any work before and after the event to manage the staging of the event.  For instance, events might be limited to 8 hours per month (inclusive of set up and takedown) and encouraged during off peak hours to minimize their impact on pedestrian circulation.  To the extent possible, this event calendar should be as predictable and as clear as possible rather than the haphazard series of events which occurs today.  In many Privately Owned Public Spaces for instance – spaces regulated by the Department of City Planning – private events are limited to one per month (see City Center) with a limited duration (8 hours roughly).        


2)      Criteria for the kinds of events, including an allowance for non-profit events.  Criteria should include noise, size, duration of event, commercial activity and intrusiveness, and the impact on the public use of the space and surrounding spaces, and general public benefit of the event whether for-profit or non-profit in nature.  Different neighborhoods and plazas should have different standards.  Times Square is radically different environment than Union Square and this context should inform the regulations. 


3)      A competitive bidding process for these events should be created to ensure that the public captures the market value of these events.  The pricing structure today mandates the City essentially be paid for any City staff-hours that go into the event (police, sanitation) and therefore fails to realize significant potential financial gain from these events.  This is simply unacceptable.  We believe we can reduce the number of events and generate revenue for the City if we price these events far more appropriately while still putting clear limits on the number of events.  


4)      A clear noticing provision for any event.  The CB believes a minimum of 45 days is appropriate to ensure adequate time to respond to the applicant and work with them to improve the event and to ensure that appropriate stakeholders can be consulted.  Today, we most often do not get any information about applications which completely commercialize public space and bring hundreds and sometimes thousands of people.  Having no notice or public review is simply not appropriate for the commercial use of public space.  At the outset a standing working group could be developed with relevant agencies and the public represented by the Community Board collectively evaluating each application until any rule changes go into effect.  


5)      For the first year, a reporting requirement to see if the rules are having the intended effect of whether they need to be revised in some fashion to strengthen or relax particular provisions. 


WHEREAS, The City Department of Transportation (DOT) has come before Manhattan Community Board Five (CB5) to request the grant of major concession for the maintenance of the bowtie area and Broadway stretching up from 47th Street 53rd Street ; and


WHEREAS, The plazas are intended for the benefit of the public and designed to promote passive recreation and a peaceful respite, the same function as city parks, public plazas, and waterfront esplanades; and


WHEREAS, The pilot design project has received an overwhelmingly favorable response and made a positive impact on the pedestrian and vehicular experience and a permanent design for Times Square has been approved by CB5 and is under construction; and


WHEREAS, More Times Square area employees say they are leaving their offices for lunch and more theatre-goers are finding access to the area easier; and a survey by the Flatiron 23rd Street Partnership gave the plazas an 84% approval rating; and


WHEREAS, DOT asserted that it would continue to seek community involvement and support at the time the project was approved and the plazas were to be re-designed as permanent; and


WHEREAS, While CB5 welcomes the programming of public space for entertainment, education, and philanthropic activities, it has taken a strong and consistent stance regarding the over-commercialization of our parks and public open spaces, the overcrowding of sidewalks with newsstand and other concessioners, an excess of predominantly commercial street activities; and


WHEREAS, A detailed statement on the application is appended to this resolution which describes our Board's position in more detail but the Board believes that there are fundamental problems with how regulations governing these public plazas work; and therefore be it  


RESOLVED, Community Board Five recommends the denial of this application for a major concession and urges the creation of an ad-hoc working group to chart a new path forward for appropriately regulating precious public space.


[1] http://www.nyc.gov/html/cecm/html/about/about.shtml

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