First Department Construes Open Space Requirement

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?

Consider Park West Village, a complex located on a single zoning lot that extends from 97^th to 100^th Streets and from Columbus to Amsterdam Avenue. The complex comprised three buildings until 2009, when a fourth building was built. If, instead, the complex consisted of four buildings on four separate zoning lots, the open pace requirement could be met with roof space and yard space reserved for the residents of each building. The owner of each separate zoning lot would be entitled to exclude residents of the other buildings and still count the roof and yard space as "open space." Would the situation change if four individually owned buildings were located on a single zoning lot? In 2009, when the Board of Standards and Appeals (BSA) upheld the grant of a building permit for the fourth building, the BSA concluded that the answer was no, and permitted construction of the fourth building even though some of the required open space would be located on the roof of the new building and be accessible only to residents of that building.