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ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, reversing Supreme Court, over a dissent, determined that the NYC “open space” zoning resolution (ZR) requirements can not be satisfied on a building by building basis. The permit allowing the construction of a nursing home facility on a parking  lot, therefore, should not have been issued. The open space on the roof of the proposed building would not be accessible to all who resided on the zoning lot. Such access is part of the definition of “open space:

The language in ZR § 12-10 is “clear and unambiguous” … . ZR § 12-10 has always defined “open space” as being “accessible to and usable by all persons occupying a #dwelling unit# or a #rooming unit# on the #zoning lot#” … . That language unambiguously requires 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. To further bolster our finding that this language is clear and unambiguous, the 2011 amendments to ZR §§ 23-14 and 23-142 eliminated all references to “building” and replaced it with “zoning lot.” Equally dispositive is the identical change in the definition of “open space ratio” in ZR § 12-10. Of course, the impracticality of allowing the residents of one building on a zoning lot to have access to, and use of, open space located on the rooftop of another building on the zoning lot is obvious. Yet, respondents’ apparent contention concerning ZR § 12-10’s open space requirement — that any rooftop that may be considered open space for the purposes of the open space requirement shall or must be considered open space irrespective of access — gives credence to the impracticality. That is not what ZR § 12-10 says.

ZR § 12-10 unambiguously provides that “[o]pen space may be provided on the roof of . . . [a] building containing residences” and that “[a]ll such roof areas used for open space shall meet the requirements set forth in this definition.” Thus, any rooftop space that is 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. Lest there be any doubt, we find that the 2011 amendments now preclude the use of the building-by-building methodology, which had been an exception to this clear statutory import. Matter of Peyton v New York City Bd. of Stds. & Appeals, 2018 NY Slip Op 06870, First Dept 10-16-18

ZONING (ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/MUNICIPAL LAW (NYC OPEN SPACE, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/ADMINISTRATIVE LAW (NYC OPEN SPACE, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))/OPEN SPACE (NYC ZONING, ROOF OF A PROPOSED BUILDING WOULD NOT BE ACCESSIBLE TO ALL WHO RESIDED ON THE ZONING LOT, THEREFORE THE OPEN SPACE REQUIREMENTS OF THE ZONING RESOLUTION WOULD NOT BE MET BY THE ROOF SPACE, PERMIT ALLOWING CONSTRUCTION OF THE BUILDING SHOULD NOT HAVE BEEN ISSUED (FIRST DEPT))

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