Open Space and the Conundrum of High Stakes Zoning Disputes

The New York Court of Appeals' recent decision in Peyton v. BSA held, in the context of a zoning lot containing several residential buildings, that the Zoning Resolution of the City of New York does not require an area to be accessible to all residents of the zoning lot for the area to qualify as "open space." Holding that the relevant language of the Zoning Resolution is ambiguous, the Court deferred to the zoning interpretation of the Department of Buildings and Board of Standards and Appeals, which have long interpreted the Zoning Resolution as permitting an open space area to be accessible to some, but not all, of the residential buildings on the zoning lot, provided that the residents of each building have access to a proportionate amount of open space on the zoning lot. This article describes the zoning issue decided in Peyton, discusses the implications of Peyton for development on multi-building zoning lots (which often occur as a result of the "assemblage" of development rights through a zoning lot merger), and presents observations as to why zoning litigation of this kind has such high stakes, not only for the individual property owner but for other property owners who have constructed buildings based on a widely applicable DOB zoning interpretation called into question by a zoning challenge to a single building.