Scott Mollen

Land Use—BSA Determination That Development Complied With "Open Space" Requirement of the NYC Zoning Resolution Upheld—Deference to Administrative Agency—Dissent Asserted That Statute Was Clear and Deference Unwarranted

The New York Court of Appeals (court) addressed the issue of "whether an area must be accessible to the residents of every building on a zoning lot containing multiple, separately owned buildings in order to constitute 'open space' within the meaning of the NYC Zoning Resolution (ZR), following amendments to the statute in 2011." The NYC Board of Standards and Appeals (BSA), which "is responsible for administering the (ZR), has interpreted the definition of open space to encompass rooftop gardens accessible to a single building's residents as long as the residents of each building on the zoning lot receive at least a proportionate share of open space."

The court held that since the BSA "rationally interpreted and harmonized the relevant provisions of the (ZR), a complex statutory scheme regulating zoning in New York City, and appropriately applied them to this context,'…its determination is not arbitrary capricious, or contrary to law."

The ZR "requires a minimum amount of open space—a term of art—in high-density residential zoning districts." The ZR defines open space as "that part of a zoning lot, including courts or yards, which is open and unobstructed from its lowest level to the sky and is accessible to and useable by all persons occupying a dwelling unit or a rooming unit on the zoning lot." Although a zoning lot originally had to be in "single ownership," the ZR was amended in 1977 to "authorize zoning lots consisting of parcels held by different owners."