This past week, in a 4 to 3 decision, New York's highest court – the Court of Appeals – decided an important New York City land use question regarding how "open space" is accessed by residents on a zoning lot with multiple buildings In the Matter of Randy Peyton, et al v. NYC Board of Standards and Appeals, et al. This rollercoaster ride ended with the Court of Appeals overturning the First Department, Appellate Division's decision, and ultimately agreeing with the NYC Department of Buildings original application of the law, which was affirmed by the quasi-judicial NYC Board of Standards and Appeals (BSA). The Court of Appeals determined that open space available for use by residents of one building, such as a rooftop garden, does not need to be accessed by residents in other buildings when the buildings are part of a single zoning lot in order to satisfy zoning "open space" requirements, putting to rest this controversial question.
Two or more buildings may be built on a single zoning lot for various reasons. For example, there may be an air rights transfer from one tax lot to another, which merged their zoning lots into a single zoning lot; or a large property originally under the control of a single owner is later subdivided and sold off, leaving multiple tax lots with varying ownership, but retaining its status as a single zoning lot. The result of having multiple buildings within a single zoning lot is that every building must comply with the Zoning Resolution as applied to the entire zoning lot, taking into account the rights of each building within the zoning lot. An example would be a 10,000 square-foot (sf) zoning lot, split into two 5,000 sf tax lots, one owned by "owner A" and the other tax lot owned by "owner B". If the floor area ratio for the zoning lot is 2.0, a maximum of 20,000 sf may be developed on the entire zoning lot. Owner A could build a 5,000 sf building, and owner B could build a 15,000 sf building, or vice versa, or they could both build a 10,000 sf building. In any scenario, owners A and B could not violate the zoning regulations applicable to the zoning lot by going above the 20,000 sf maximum. Typically, owners A and B would have entered into a "zoning lot development agreement" (ZLDA), to define each party's rights for the applicable zoning regulations, including open space, lot coverage, FAR, height, yards, courts, etc.
When an owner develops a building pursuant to the "height factor" regulations in the City's Zoning Resolution, required open space must be correctly calculated for the zoning lot. The open space must be accessible to the residents on the zoning lot. In the present case, one building had a rooftop garden meant only to be accessible to the residents of that building, and not open to all the residents of all the other buildings on the zoning lot – begging the question: "Does such a rooftop garden then meet the definition of 'open space'?" The Court determined it does. More specifically, the Court found that a building that provides open space to the residents of the building on which the open space is located, but not to the residents of another building on the zoning lot, does meet the definition of providing accessible open space. Although this seems obvious to some, it was quite a complicated conclusion to reach.
The Court stated that "the complex set of cross-references and interlocking provisions in the Zoning Resolution's definition of open space ... is part of an intricate statutory edifice with which... the definition of open space in ZR Section 12-10 comprises no less than 13 defined terms, many of which cross-reference other terms." Easy, right? Maybe not (hence the reason for attorneys!). Needless to say, the Court did not adopt a plain language reading of the zoning text, and instead opted for deference to the BSA, the City agency charged with interpreting the complexity of the Zoning Resolution. At the end of the day, the Court found that the BSA opted for a holistic approach, taking into consideration all the buildings and residents on the zoning lot. The BSA reasoned that that zoning text required a practical approach, whereby open space could be limited to the residents of one building on a zoning lot, and not accessible to other residents in a different building on the same zoning lot. The Court found that the BSA's application of the definition of open space was supported by the legislative intent of the zoning text, which was described by the first edition of the Zoning Handbook1, as space that is "accessible to all residents of a building." The Court concluded, therefore, that the BSA's application was not arbitrary, and that open space on one portion of a zoning lot does not need to be accessible to residents on other portions of a zoning lot.
FOOTNOTES
1 The Zoning Handbook, originally written in 1961 and updated every few years, is published by the City Planning Commission to explain the Zoning Resolution.
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