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Scott E. Mollen

Land Use—NYC Board of Standards and Appeals Decision Overturned—Zoning Resolution “Open Space” Requirements—Dissenting Opinion Would Defer to the BSA

Petitioners appealed from a trial court judgment which dismissed their Article 78 petition. The petitioners sought to annul a resolution of the NYC Board of Standards and Appeals (BSA). The BSA decision upheld the issuance of a building permit by of the NYC Dept. of Buildings (DOB), for construction of a nursing home. The Appellate Division (court) stated that the subject dispute “brings to light…the unavoidable tension between urban development and quality of life in neighborhoods that make up the unique fabric of New York City, an already densely populated metropolis.” The specific issue was “whether this construction would violate the ‘open space’ mandate embodied in the NYC zoning resolution (ZR).”

The subject property is located on a “superblock.” The site includes three 16-story “residential buildings” and several other buildings. The ZR required that there be 230,108 sq. ft. of required minimum open space. The ZR defined “open space” as “that part of a zoning lot, including courts or yards, which is open and unobstructed from its lowest level to the sky and is accessible to and usable by all persons occupying a dwelling unit…on the zoning lot (ZR §12-10).” The ZR provides that a zoning lot “may or may not coincide with a lot as shown on the official tax maps.”

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