Posted by: Patricia Salkin | October 16, 2018

NY Appellate Court Reverses Grant of Permit for the Construction of a Nursing Home Finding Language of Zoning Resolution “Clear and Unambiguous” as to Open Space

This post was authored by Matthew Loeser, Esq.

Maggi Peyton and petitioners-intervenors, residence of Park West Village, sought to annul respondent New York City Board of Standards and Appeals’ (“BSA”) resolution upholding the New York City Department of Buildings’ (“DOB”) decision that granted a permit for the construction of Jewish Home Lifecare, Inc (“JHL”) – a nursing home on the Upper West Side. Petitioner brought this article 78 proceeding against BSA, JHL, and the owner, seeking to annul the 2015 Resolution based on the ground that the rooftop area of 808 Columbus should now not qualify as open space, and to revoke the permit for the nursing home issued by DOB to JHL. Supreme Court concluded that it “cannot say that the open space provisions could not be subject to different interpretations,” and that there was “enough ambiguity” in the open space provisions so that the court would “defer to DOB’s practical construction of the ordinance.”

On appeal, the court found petitioners were attempting to resurrect and collaterally attack the 2009 resolution determining that 808 Columbus complied with open space requirements. As such, this argument was barred by the settlement of the 2009 article 78 proceeding, which was then dismissed with prejudice more than six years earlier.

Even assuming arguendo that petitioners’ argument was not precluded entirely, the court found it failed on the merits. Here, the language in ZR § 12–10 was “clear and unambiguous” in requiring open space to be accessible to all residents of any residential building on the zoning lot, not only the building containing the open space in question. Furthermore, pursuant to the resolution, any rooftop space that was to be considered open space for the purposes of satisfying the open space requirement under the Zoning Resolution must be accessible and usable by all residents on a zoning lot. Moreover, the court found that the 2011 Amendments’ elimination of “building,” and replacement with the term with “zoning lot” was an unmistakable rejection of the utilization of a building-by-building formula in calculating the open space ratio for a multiple building zoning lot. The court therefore held DOB and BSA’s use of a building-by-building formula in calculating the JHL building’s open space ratio to be contrary to the Zoning Resolution. Accordingly, the decision of the Supreme Court of New York to uphold the grant of the permit to JHL was reversed.

Peyton v New York City Board of Standards and Appeals, 2018 WL 4999377 (NYAD 1 Dept. 10/16/2018)

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