The question in this case is whether the New York City Board of Standards and Appeals (BSA) rationally applied the “open space” provisions of the city’s zoning law to permit the development of a 20-story nursing home in Park West Village, a residential development in Manhattan.
The city’s zoning law, called the Zoning Resolution, requires that each zoning lot maintain a minimum amount of open space. The law defines “open space” as any part of a zoning lot that is “open and unobstructed from its lowest level to the sky” and “accessible to and usable by all persons occupying a dwelling unit or a rooming unit on the zoning lot.” For a multibuilding zoning lot, the BSA interpreted the open-space requirement, in effect, to count as open space otherwise-qualifying space, even if that space was open to the residents of only one of the lot’s buildings.
Park West Village is a collection of three separately-owned residential apartment buildings located on the Upper West Side “superblock” bounded by Columbus and Amsterdam Avenues and 97th and 100th Streets. In the mid-2000s, the BSA applied its interpretation of the open-space requirement in approving plans to build yet another apartment tower on the zoning lot containing the Park West Village. Specifically, in a 2009 decision, the BSA determined that the rooftop garden of the new building, called 808 Columbus, was “open space” even though it was open to residents of only that building. The Park West Village tenants association challenged that determination in a CPLR article 78 proceeding, but that proceeding was settled and discontinued with prejudice.
In 2014, appellant Jewish Home Lifecare, Inc., obtained a permit to develop a 20-story nursing home on a portion of the land owned by 808 Columbus. A Park West Village resident challenged the permit in an administrative appeal to the BSA. She argued that legislation passed in 2011 abrogated the BSA’s interpretation of the open-space requirement. Under the new legislation, the rooftop garden at 808 Columbus was not open space, notwithstanding the prior BSA decision to the contrary. And as a result, the planned development did not incorporate enough open space to meet the zoning lot’s minimum requirement. When the BSA approved the permit, the resident challenged the determination in this CPLR article 78 proceeding.
Supreme Court confirmed the BSA’s determination and dismissed the petition. The court held that the BSA’s interpretation of the open-space requirement was entitled to deference because that interpretation was not “unambiguously” refuted by the text of the Zoning Resolution. And the court held that the 2011 legislation was not inconsistent with, and did not displace, the BSA’s interpretation.
A divided panel of the First Department reversed. The majority held that the BSA’s earlier decision about 808 Columbus did not collaterally estop petitioner from challenging the open space issue in connection with the new permit. The majority refused to defer to the BSA’s interpretation of the open-space requirement because that interpretation did not to implicate BSA’s “knowledge and understanding of operational practices” or its “evaluation of factual data and inferences to be drawn therefrom.” And the majority held that the text of the Zoning Regulation clearly required that space could count as “open space” only if that space was accessible to all residents of any residential building on the zoning lot. The court thus annulled the BSA’s determination and denied the permit.
A single judge dissented. He concluded that the open-space provisions in the Zoning Resolution were ambiguous, and that BSA’s interpretation of those provisions was rational and entitled to deference. Moreover, like Supreme Court, the dissenting judge found that the 2011 legislation did not reject the BSA’s interpretation because it left the definition of “open space” unaltered.
The First Department granted leave to appeal to the Court of Appeals.
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