This post was authored by Amy Lavine, Esq.
The New York Court of Appeals issued a decision in December 2020 dealing with the interpretation of open space regulations under the New York City Zoning Resolution. In a 4 to 3 split, the majority reversed the decision of appellate court and reinstated the original determinaton made by the New York City Board of Standards and Appeals, which had “interpreted the definition of open space to encompass rooftop gardens accessible to a single building’s residents as long as the residents of each building on the zoning lot receive at least a proportionate share of open space.”
The court emphasized that the Board of Standards and Appeals has particular expertise regarding the implementaton of open space requirements under the Zoning Resolution, including relevant operational practices such as access restrictions and the calculation/allocation of minimum open space reqirements. As a result, the court explained, “[w]e cannot ignore the agency’s judgment about the feasibility of competing approaches, especially where the interpretive question involves the application of a broad statutory definition to a situation—multi-owner zoning lots—that the Zoning Resolution does not expressly address.”
The majority ultimately found that the interpretaton developed by the Board of Standards and Appeals was rational and supported by the text, structure, history, and legislative intent of the definition of open space. The dissent, on the other hand, contended that the definition of “open space” had only one plain meaning, which was that “unless all persons residing in apartments on a zoning lot can access and use a particular space, that space does not count as “open space.”” The dissent criticized the court for allowing the Board of Standards and Appeals to essentially rewrite the zoning code’s open space provisions.
Matter of Peyton v New York City Bd. of Stds. & Appeals, 2020 NY Slip Op 07662 (12/17/20).
LAW OF THE LAND 
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