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Open Space Accessibility 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.
The zoning lot at issue in Peyton contains three apartment buildings built in the 1960s and a mixed-use building completed in 2010. The mixed-use building is comprised of a 29-story residential tower with landscaped gardens located on the rooftops of the one-story retail portions of the building. The rooftop gardens are accessible to the residents of that building, but are not accessible to the residents of the three other residential buildings on the zoning lot. At issue in Peyton was whether these rooftop gardens qualify as "open space" as defined in the Zoning Resolution.
The issue is significant because 14 zoning districts in New York City require a minimum amount of "open space" for any zoning lot containing residential dwelling units, and an additional 18 zoning districts contain open space requirements. Collectively, these 32 zoning districts comprise a very substantial majority of the land in New York City that is zoned for residential use.
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