First Department Construes Open Space Requirement

In 2011, however, the City Council amended the open space provisions of the zoning resolution. In particular, section 23-14 of the resolution, which previously set for the minimum open space "for any building on a zoning lot," was amended to delete the words "building on a." Similar changes were made to section 23-142, and references to buildings were deleted from the examples in section 12-10, which defines the "open space ratio" of a zoning lot. The City Planning Commission's report on the 2011 amendments made no mention of open space requirements or of the reasons for these changes.

Against this background, Jewish Home Lifecare, Inc. sought a permit to build a nursing home on Park West Village land that had previously been used as a parking lot. Construction of the nursing home did not itself require any increase in open space. But construction of the home would reduce the overall open space on the zoning lot. To compensate for that problem, Jewish Home Lifecare proposed to build a roof garden, accessible to all Park West Village residents, atop the 20-story nursing home building. Jewish Home Lifecare also incorporated a meditation garden and a children's play area into its plans for the site. Once the roof garden space was counted as open space — and no one disputed that the roof space could be counted – Jewish Home Lifecare believe that the zoning lot as a whole provided sufficient open space to meet the standards in the zoning resolution. The Board of Standards and Appeals agreed.

There was, however, one significant problem: Jewish Home Lifecare's calculations included the roof area on the 2009 apartment building as open space even though that roof area was open only to residents of that building, not to other residents of Park West Village. In 2009, BSA had counted that roof area as open space. When BSA again counted that area as open space, neighboring Park West Village residents brought an article 78 proceeding, contending that in light of the 2011 amendments to the zoning resolution, the rooftop space on the 2009 building no longer qualified as open space. Although everyone agreed that the 2009 building was now grandfathered, the neighbors contended that the rooftop could not be considered in evaluating any new construction. The neighbors contended that because the nursing home construction, which would decrease the total open space on the zoning lot, would increase the existing nonconformity (assuming the rooftop space were not considered), BSA had improperly granted a permit toe Jewish Home Lifecare. Although Supreme Court upheld BSA's determination, a divided Appellate Division agreed with the neighbors and annulled BSA's grant of the permit.

In an opinion by Justice Jeffrey Oing, the majority focused on the 2011 amendments' "unmistakable rejection of the utilization of a building-by-building formula in calculating the open space ratio for a multiple building zoning lot." In light of the statutory language, the court concluded that the rationale underlying the 2009 decision to count the rooftop as open space was "no longer sustainable." Justice Peter Tom, dissenting, argued that despite the 2011 amendments, the zoning resolution's open space provisions remained ambiguous on the treatment of multiple buildings on a single zoning lot. As a result, he concluded that deference to the BSA, the agency with expertise, was appropriate.

The court's opinion has implications for any developer seeking to build multiple buildings on a single zoning lot. Absent amendment to the zoning resolution or reversal by the Court of Appeals, all open space on the zoning lot must be accessible to all residents of the lot. The impact of that holding extends past rooftop space to any other outdoor space accessible to residents of a single building or unit. In some circumstances, developers may be able to avoid the impact of Peyton by subdividing existing zoning lots into smaller lots, as authorized by the definition of zoning lot in section 12-10 of the zoning resolution. In other circumstances, however, subdivision may not be a practical alternative.

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Stewart E. Sterk, Mack Professor of Law at Benjamin Cardozo School of Law, is the Editor-in-Chief of New York Real Estate Law Reporter.