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First Department Construes Open Space Requirement
In Peyton v. New York City Board of Standards and Appeals, 166 A.D.3d 120, the First Department faced a difficult question: when a zoning lot includes more than one building, can open space accessible to residents of one building, but not to residents of the other buildings, count as open space within the meaning of the New York City Zoning Resolution? In concluding that a roof garden on one of the buildings in Park West Village could not count as open space, the court's majority thwarted efforts to build a nursing home — even though the nursing home itself was not subject to open space requirements. Moreover, the court's opinion may have implications that extend past Park West Village, the site of the Peyton dispute.
New York City's zoning ordinance requires open space for all buildings on a zoning lot in a residential district. To qualify as open space, the space must be "accessible to and usable by all persons occupying a dwelling unit on the zoning lot." The definition is largely unproblematic when each zoning lot houses a single building. But suppose a large zoning lot houses several buildings. Must all of the open space be entitled to all residents of the entire zoning lot?
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