The Matter of Randy Peyton v. New York City Board of Standards , and Appeals

State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.

No. 88
In the Matter of Randy Peyton,
&c.,
Respondent,
Hillel Hoffman, et al.,
Intervenors-Respondents,
v.
New York City Board of Standards
and Appeals, et al.,
Appellants.

Jonathan A. Popolow, for appellants New York City Board of Standards and Appeals, et
al.
Philip E. Karmel, for appellant PWV Acquisition, LLC
Submitted by Henry M. Greenberg, for appellant Jewish Home Lifecare, Inc.
John R. Low-Beer, for respondent Randy Peyton and intervenor-respondents Hillel
Hoffman, et al.
The Real Estate Board of New York, Inc.; Public School 163's School Leadership Team et
al., amici curiae.

FEINMAN, J.:

The question before us is whether an area must be accessible to the residents of

every building on a zoning lot containing multiple, separately owned buildings in order to

constitute “open space” within the meaning of the New York City Zoning Resolution,
-1-
 -2- No. 88

following amendments to the statute in 2011. The Board of Standards and Appeals of the

City of New York (BSA), which is responsible for administering the Zoning Resolution,

has 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. Because the BSA rationally interpreted and

harmonized the relevant provisions of the Zoning Resolution, a complex statutory scheme

regulating zoning in New York City, and appropriately applied them to this context, we

conclude that its determination is not arbitrary, capricious, or contrary to law.

I.

The New York City Zoning Resolution, adopted in 1961 and still in force as

amended today, aims to provide “open space in residential areas wherever practicable . . .

in order to open up residential areas to light and air, to provide open areas for rest and

recreation, and to break the monotony of continuous building bulk” (NY City Zoning

Resolution § 21-00 [d]). To achieve this goal, the Zoning Resolution requires a minimum

amount of open space—a term of art—in high-density residential zoning districts (see id.

former §§ 23-14, 23-142).1 The definition of open space, not substantively changed since

enactment in 1961, provides:

“‘Open space’ is that part of a zoning lot, including courts or
yards, which is open and unobstructed from its lowest level to

1
In 2016, amendments to the Zoning Resolution recodified certain provisions including
sections 23-14 and 23-142. Former section 23-14 has been redistributed between current
sections 23-10 and 23-15, and former section 23-142 between current sections 23-15 and
23-151.
-2-
 -3- No. 88

the sky and is accessible to and usable by all persons occupying
a dwelling unit or a rooming unit on the zoning lot”2

(id. § 12-10 [definition of open space]). The minimum amount of open space required on

a zoning lot is determined by the “open space ratio,” which is “the number of square feet

of open space on the zoning lot, expressed as a percentage of the floor area on that zoning

lot” (id.). The applicable ratio is a function of the residential district in which the zoning

lot is located and the “height factor” of the zoning lot (see e.g. ZR former § 23-142). Thus,

the minimum amount of open space required on a zoning lot is calculated by multiplying

the given open space ratio by the total residential floor area on the zoning lot. 3 Originally,

a zoning lot had to be in single ownership, but the Zoning Resolution was amended in 1977

to authorize zoning lots consisting of parcels held by different owners.

The zoning lot at issue in this case is a superblock located between W. 97th Street,

W. 100th Street, Columbus Avenue, and a midblock line east of and parallel to Amsterdam

Avenue. It was developed in the late 1950s under a federally subsidized urban renewal

plan. Three residential buildings, which form part of the Park West Village apartment

complex, were built at that time. Shortly before a 40-year restriction prohibiting additional

2
The Zoning Resolution uses bold italics to identify defined terms.
3
The definition of open space ratio in ZR § 12-10 provides the following example:
“[I]f for a particular zoning lot an open space ratio of 20 is
required, 20,000 square feet of floor area in the building
would necessitate 4,000 square feet of open space on the
zoning lot; or, if 6,000 square feet of lot area were in open
space, 30,000 square feet of floor area could be on that zoning
lot.”

-3-
 -4- No. 88

construction on the lot expired, respondent PWV Acquisition, LLC (PWV) acquired

ownership of the zoning lot intending to develop additional buildings on the property.

In 2006, PWV submitted a building permit application to the New York City Department

of Buildings (DOB) for a mixed-use building at 808 Columbus Avenue, with two one-story

retail wings, each with a rooftop garden exclusively accessible to the new building’s

residents. PWV’s architects presented site plans that treated the rooftop gardens, covering

tens of thousands of square feet, as open space within the meaning of the Zoning Resolution

and reserved additional space for a future community building. Based on the architects’

assumption that the rooftop gardens qualified as open space despite their inaccessibility to

the residents of the existing Park West Village apartment complex, the architects stated

there would be enough open space to satisfy the minimum amount required on the zoning

lot after construction of 808 Columbus Avenue4 and the future community building.

Further, the architects represented that each building on the zoning lot would receive at

least its proportionate share of open space.

Several elected officials and Park West Village residents objected that the rooftop

gardens did not qualify as open space under the Zoning Resolution because they were not

accessible to all residents of all buildings on the zoning lot. Discerning no such requirement

in the Zoning Resolution, the DOB rejected the challenge and approved the proposed open-

space calculations. In 2009, the BSA upheld the DOB’s determination, noting that each of

the existing buildings was allocated a proportionate amount of open space in excess of what

4
In 2007, PWV transferred the parcel on which the new building was to be built to a
different owner.
-4-
 -5- No. 88

would be required if each building were located on its own zoning lot, and finding that the

proposed allocation did not violate the open-space requirements under ZR §§ 12-10 and

23-142. The residents commenced a CPLR article 78 proceeding but soon discontinued it

with prejudice. The 808 Columbus Avenue building was completed in 2010.

In 2011, the City Planning Commission adopted amendments to the definition of

certain key terms in the Zoning Resolution. As part of this revision, the Commission also

made nonsubstantive changes to clarify the meaning of various provisions and update

obsolete language in line with DOB practice. Included in this latter category were

nonsubstantive changes to the sections relating to minimum required open space and open

space ratio, which clarified that those requirements apply to zoning lots, not buildings. For

instance, references to the term “building” were deleted in former section 23-142:

“[I]n the districts indicated, the minimum required open space
ratio and the maximum floor area ratio for any building on a
zoning lot shall be as set forth in the following table for
buildings zoning lots with the height factor indicated in the
table.”5

No changes were made to the definition of open space.

That same year, respondent Jewish Home Lifecare, Inc. (JHL) entered into an

agreement with PWV to build and operate a nursing facility at the location designated in

the 2006 site plans for the prospective community building. According to JHL’s site plans,

5
Text in strikeout was deleted; underlined text was added (see Key Terms Clarification
Zoning Text Amendment, https://www1.nyc.gov/assets/planning/download/pdf/plans/key
-terms/text_adopted_cc.pdf).
-5-
 -6- No. 88

the amount of open space to be provided would satisfy the minimum required, assuming

that the rooftop gardens at 808 Columbus Avenue counted toward the total.

After the DOB approved JHL’s application, petitioner Maggi Peyton, then president

of the Park West Village Tenants’ Association, challenged the issuance of the permit,

arguing that the proposed nursing home did not satisfy the Zoning Resolution’s open-space

requirements. The DOB rejected the challenge, determining that the amount of open space

proposed was in excess of the minimum required. On appeal to the BSA, Peyton argued

that amendments to the Zoning Resolution enacted in 2011 superseded the BSA’s 2009

determination and made plain that, to constitute open space, an area must be accessible to

the residents of every building on a zoning lot. In 2015, the BSA denied her appeal, noting,

among other things, that there was no indication that the City Planning Commission had

intended to alter the BSA’s 2009 determination. Specifically, the BSA stated that the only

question before it was whether the 2011 amendments to the Zoning Resolution “changed

the language of the text such that it now reads as [a]ppellant argued in the 2009 appeal, and

whether the open space requirements are changed in such a way as to implicate the

proposed construction of the Nursing Facility.” The BSA rejected Peyton’s argument that

the amendments effectively changed the definition of open space to include only space that

is accessible to and usable by all residents of all buildings on a zoning lot.

Peyton commenced this CPLR article 78 proceeding in November 2015, asserting

that the BSA’s interpretation of open space had no legal basis under the Zoning Resolution.

Supreme Court denied the petition, rejecting her contention that the 2011 amendments

modified or clarified the definition of open space, and concluding there was “enough

-6-
 -7- No. 88

ambiguity to defer to the DOB’s practical construction of the ordinance.” The Appellate

Division reversed over one Justice’s dissent (166 AD3d 120). 6 Declining to defer to the

BSA, the majority opined that the definition of open space in ZR § 12-10 unambiguously

requires that open space be accessible to the residents of every building on a zoning lot. By

contrast, the dissent concluded that the statute was ambiguous and would have deferred to

the BSA’s practical reading of the open-space definition as applied to multi-owner zoning

lots. The Appellate Division granted respondents’ motion for leave to appeal to this Court.7

II.

In matters of statutory interpretation, “legislative intent is the great and controlling

principle” (Matter of Rizzo v New York State Div. of Hous. & Community Renewal, 6 NY3d

104, 114 [2005] [internal quotation marks omitted]). Because “the clearest indicator of

legislative intent is the statutory text, the starting point in any case of interpretation must

always be the language itself, giving effect to the plain meaning thereof” (Kuzmich v 50

Murray St. Acquisition LLC, 34 NY3d 84, 91 [2019] [internal quotation marks omitted],

6
Peyton passed away during the appeal. The Appellate Division allowed her son to
maintain the proceedings on her estate’s behalf and granted intervention to additional
petitioners.
7
Before the BSA and in the courts below, respondents raised substantial objections to
petitioners’ ability to challenge, in this application seeking a building permit for the
proposed nursing home, the BSA’s previous determination that the one-story rooftop
gardens at 808 Columbus Avenue constitute open space. In this Court, the BSA—but not
PWV or JHL—has largely abandoned these objections and asked the Court to review the
BSA’s interpretation and application of ZR § 12-10, which the Appellate Division rejected.
Given our resolution of the statutory interpretation issue, we have no occasion to address
the continued objections of PWV and JHL.
-7-
 -8- No. 88

rearg denied 33 NY3d 1135 [2019], and cert denied 140 S Ct 904 [2020]). Courts generally

“construe words of ordinary import with their usual and commonly understood meaning”

(Walsh v New York State Comptroller, 34 NY3d 520, 524 [2019] [internal quotation marks

omitted]), “unless the Legislature by definition or from the rest of the context of the statute

provides a special meaning” (Lohan v Take-Two Interactive Software, Inc., 31 NY3d 111,

121 [2018] [internal quotation marks omitted]). A statute “must be construed as a whole,”

and “its various sections must be considered together and with reference to each other”

(Town of Aurora v Village of E. Aurora, 32 NY3d 366, 372 [2018] [internal quotation

marks omitted]). Further, in appropriate circumstances, the Court may “inquire into the . . .

purpose of the legislation, which requires examination of the statutory context of the

provision as well as its legislative history” (id. [internal quotation marks omitted]).

“Where the interpretation of a statute or its application involves knowledge and

understanding of underlying operational practices or entails an evaluation of factual data

and inferences to be drawn therefrom the courts regularly defer to the governmental agency

charged with the responsibility for administration of the statute” (Kurcsics v Merchants

Mut. Ins. Co., 49 NY2d 451, 459 [1980]). If the agency’s “interpretation is not irrational

or unreasonable, it will be upheld” (id.). The BSA is the “ultimate administrative authority

charged with enforcing the Zoning Resolution” (Matter of Toys “R” Us v Silva, 89 NY2d

411, 418 [1996]). It is “comprised of experts in land use and planning,” who not only

possess technical knowledge of New York City’s reticulated zoning regulations and their

operation in practice, but also are uniquely equipped to assess the practical implications of

zoning determinations affecting the City’s eight million residents. Accordingly, we have

-8-
 -9- No. 88

consistently deferred to the BSA’s interpretation of the Zoning Resolution in matters

relating to its expertise, “so long as the interpretation is neither irrational, unreasonable nor

inconsistent with the governing statute” (Toys “R” Us, 89 NY2d at 418-419 [internal

quotation marks omitted]; see also Matter of New York Botanical Garden v Board of Stds.

& Appeals of City of N.Y., 91 NY2d 413, 418-419 [1998]).

Conversely, when “the question is one of pure statutory reading and analysis,

dependent only on accurate apprehension of legislative intent, there is little basis to rely on

any special competence or expertise of the administrative agency,” and its interpretation is

“therefore to be accorded much less weight” (Kurcsics, 49 NY2d at 459; accord Toys “R”

Us, 89 NY2d at 419). If an agency’s interpretation “disregard[s] the plain meaning of the

Zoning Resolution,” courts will afford it “little weight” (Matter of Raritan Dev. Corp. v

Silva, 91 NY2d 98, 106, 103 [1997]). Still, “deference is appropriate where the question is

one of specific application of a broad statutory term” (Matter of O’Brien v Spitzer, 7 NY3d

239, 242 [2006] [internal citations and quotation marks omitted]).

Petitioners focus on the first sentence of the definition generally describing open

space as “that part of a zoning lot, including courts or yards, which . . . is accessible to and

usable by all persons occupying a dwelling unit or a rooming unit on the zoning lot” (ZR

§ 12-10). For petitioners, “persons occupying a dwelling unit or a rooming unit” is an

elaborate way of referring to residents generally, making the meaning of this text plain:

-9-
 - 10 - No. 88

open space must be accessible to all persons residing on the zoning lot.8 Respondents, on

the other hand, explain that the terms “dwelling unit” and “rooming unit” cannot be ignored

and are defined by reference to a residential building (see ZR § 12-10 [defining “dwelling

unit” as a unit that “contains at least one room in a residential building . . . and is arranged,

designed, used or intended for use by one or more persons living together and maintaining

a common household”]; id. [defining “rooming unit” as a unit that “consists of any ‘living

room,’ as defined in the Multiple Dwelling Law, in a residential building”]). By focusing

on accessibility to residents of a residential building, as opposed to residents of a zoning

lot generally, the BSA’s interpretation gives salience to a concept that is cross-referenced

in the definition of open space, whereas petitioners narrowly look at a string of words in

isolation.9 In this respect, the BSA’s approach better comports with the principle that a

statute “must be construed as a whole and that its various sections must be considered

8
The dissent states that there is “only one plain way to read that language” and then
backtracks to acknowledge the phrase’s textual ambiguity, which it resolves by considering
the extratextual “purpose” of open space (dissenting op at 2, 4). We decline to cherry-pick
the sources of legislative intent in that way.
9
The term “building” historically included “a row of garden apartments with individual
apartments” and “a series of row homes,” and still includes attached townhouses separated
by fire walls (compare ZR § 12-10 [definition of “building”] [1961], with id. [2020]). The
definition of open space encompasses spaces—such as “courts,” “yards,” and certain roof
areas—that are accessible only through a building. Indeed, a “court” may be an “inner
court” bounded by building walls, and a “yard” may be a “rear yard” (see ZR § 12-10
[definitions of “court,” “court, inner,” “yard,” and “year, rear”]). And certain roof areas
may only be “accessible by a passageway from a building, or by a ramp . . . from a
building” (id. [definition of “open space”]). Therefore, the Zoning Resolution, on its face,
does not appear to foreclose the possibility of separate buildings on a zoning lot with their
own open space.
- 10 -
 - 11 - No. 88

together and with reference to each other” (Matter of New York County Lawyers’ Assn. v

Bloomberg, 19 NY3d 712, 721 [2012] [internal quotation marks omitted]).

The complex set of cross-references and interlocking provisions in the Zoning

Resolution’s definition of open space counsels deference here. The provision at issue is

part of an intricate statutory edifice with which the BSA is most familiar. The definition of

open space in ZR § 12-10 comprises no less than 13 defined terms, many of which cross-

reference other defined terms. As noted, “open space” points to occupants of “a dwelling

unit,” a phrase defined as “contain[ing] at least one room in a residential building,

residential portion of a building, or non-profit hospital staff dwelling,” which directs the

reader to at least four other terms with specific technical meanings in the zoning context.”

For a glimpse of how the definition of open space is intertwined with other definitional and

substantive provisions of the Zoning Resolution, one need only turn to the requirements

for roof areas. To determine whether a roof area qualifies as open space, one must, among

many other things, consider whether the area is higher than 23 feet above the “curb level,”

and if so, consult sections 24-164 and 35-33. The former instructs that a qualifying roof

area may be higher than 23 feet above curb level if located on “the roof of the community

facility portion of such building, provided that the level of any open space may not be

higher than two and one half feet below the sill level of any legally required window

opening on such roof area” (id. § 24-164). And the latter elaborates that such roof area may

be provided, among other options, on the roof of “a community facility building that abuts

such residential building or residential portion of a mixed building; provided that the level

of any open space may not be higher than 2 feet, 6 inches below the sill level of any legally

- 11 -
 - 12 - No. 88

required window opening on such roof area, in the residential portion of such mixed

building” (id. § 35-33). When the DOB and the BSA examine whether a particular area

qualifies as open space, they have to consider all of these interconnected definitions and

provisions jointly. The BSA’s interpretation of the definition of open space reflects a

holistic approach, and we cannot overlook that the agency charged with administering the

Zoning Resolution in all its complexity is well placed to understand how the various parts

of the statute fit together.10

10
Citing Toys “R” Us and Raritan, the dissent categorically declares that no deference is
warranted “when interpreting the Zoning Resolution’s interlocking set of definitions”
(dissenting op at 9). Neither case provides support for that sweeping proposition.

In Toys “R” Us, the Court examined the text, legislative history, and underlying public
policy of a provision of the Zoning Resolution on abandonment of “substantially all”
nonconforming uses (89 NY2d at 420-422). Although the Court had no obligation to defer
to the BSA in fixing the meaning of the phrase “substantially all,” it nevertheless approved
the agency’s interpretation, praising it for “giv[ing] effect to all of the [Zoning
Resolution’s] terms” and “comport[ing] with the policy underlying the Zoning
[Resolution]” (id. at 419, 422). Further, the Court recognized the BSA’s expertise in
applying the abandonment standard to fact-specific scenarios. Toys “R” Us thus illustrates
the wisdom of giving due consideration to the BSA’s synoptic understanding of the Zoning
Resolution’s structure.

In Raritan, the question was whether “floor area” excludes “cellar space” (91 NY2d at 100-
101). The interpretive problem was self-contained to the definition of floor area because
both parties stipulated that the space in dispute was a “cellar” under the Zoning Resolution
(id. at 101). Since the definition of floor area specifically provided that “the floor area of a
building shall not include . . . cellar space,” the statutory text resolved the dispute on its
face (id. at 103). The Court understandably rejected the BSA’s reliance on a previous
wording of the definition of floor area (id.).

Here, by contrast, the definition of open space does not compel petitioners’ preferred
interpretation, and the many cross-references in that definition require us to consider the
broader context of the Zoning Resolution’s interlocking provisions. Further, the operative
definition of open space has not changed since the BSA’s 2009 determination, arguably
signaling legislative approval of the BSA’s approach.
- 12 -
 - 13 - No. 88

The legislative history of the Zoning Resolution further supports the BSA’s

interpretation. An early draft of the Zoning Resolution, contained in a report commissioned

by the City Planning Commission, described open space as accessible to “all residents upon

the zoning lot” (Voorhees Walker Smith & Smith, Report to NY City Planning Commn,

Proposed Zoning Resolution § 12-10, at 34 [Aug. 1958])—precisely the view espoused by

petitioners here. But the City Planning Commission did not adopt that simplistic

formulation, preferring the more precise and complex “all persons occupying a dwelling

unit or a rooming unit on the zoning lot”—which, as discussed above, incorporates the

concept of residential building by cross-reference. Additionally, the handbook published

by the City Planning Commission contemporaneously with the 1961 Zoning Resolution

characterized open space as “accessible to all residents of a building” (NY City Planning

Commn, Zoning Handbook at 17).

In any event, when the 1961 Zoning Resolution was adopted, zoning lots were held

in single ownership. The drafters did not contemplate the possibility of multi-owner zoning

lots, where access to any individual building by the residents of other buildings on a zoning

lot might not be feasible for both practical and legal reasons.11 This history gives further

11
The dissent professes its inability to “reconcile the majority’s conclusion that the
legislative history supports the BSA’s reading if, as the majority claims, the drafters of the
Zoning Resolution did not envision the situation that has arisen here” (dissenting op at 12).
We see no reason for perplexity. The fact that the Zoning Resolution’s text and legislative
history permit the BSA’s building-centric approach does not mean that the drafters in 1961
anticipated the complications of providing access to open space on a multi-owner zoning
lot.
- 13 -
 - 14 - No. 88

credence to the BSA’s reading of the statute, which is sufficiently capacious to embrace

the BSA’s rational solution to a problem unanticipated by the Zoning Resolution’s drafters.

Based on its accumulated experience with the implementation of open space requirements

across the City’s residential districts, the BSA enjoys special insight into the DOB’s

operational practices, including procedures regarding access (such as manner and time

restrictions) and use, as well as allocation and calculation of minimum required open space.

We 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.12

In contrast, petitioners suggest that the drafters of the 1961 Zoning Resolution

embraced a “tower-in-the-park vision” that prized large zoning lots with multiple buildings

surrounded by shared open space. Yet they do not cite any statement of intent or other

12
The dissent casts aside the BSA’s expertise and experience and, seemingly fancying
itself as a land-use expert, states that the answer is cut and dried: “to qualify as open space,
a given area must be accessible to ‘all persons’ who reside on the zoning lot” (dissenting
op at 3-4). Of course, removing words from the definition of open space makes it simpler
and easier to parse. But if those omitted words are meaningless, why did the City Planning
Commission include and adopt them? The omitted words remained after both the 2011 and
2016 amendments—unlike the dissent, the Commission chose not to remove them,
indicating their significance. Further, the dissent probably does not mean what it broadly
proclaims. For example, we doubt (though do not decide) that preventing residents from
access when a space reaches a certain occupant load would render the space no longer
“open space.” Nor would restricting access to all residents after midnight. Or even at all
times during a COVID-19 outbreak. Neither would banning certain residents who at one
time violated a rule on the use of the space or did not pay their use fees. What about
allowing the space to be reserved by a resident for a private event one evening?
- 14 -
 - 15 - No. 88

language in the Zoning Resolution that favors “towers-in-the-park projects” on large

superblocks. Instead of dictating the size of zoning lots, the Zoning Resolution requires a

minimum amount of open space as a percentage of residential floor area. The BSA’s

interpretation meets that requirement by ensuring that the residents of each building on a

multi-owner zoning lot have access to at least the amount of open space that would be

required if the building were on a separate zoning lot. By allocating open space in this way,

the BSA’s interpretation fulfills the purpose of the open-space requirement, which is “to

open up residential areas to light and air, to provide open areas for rest and recreation, and

to break the monotony of continuous building bulk” (ZR § 21-00 [d]).

Nor is there any merit to petitioners’ contention that the 2011 amendments to the

Zoning Resolution ratified their interpretation of the statute. The 2011 amendments deleted

references to “building” and replaced them with references to “zoning lot” in the definition

of open space ratio and in former sections 23-14 and 23-142 relating to minimum required

open space. These provisions, however, do not govern what constitutes open space or how

to allocate open space among buildings on a zoning lot. Rather, they set forth how to

calculate the minimum amount of required open space based on the ratios applicable to

residential districts for given height factors.13 Further, nothing in the legislative history of

the 2011 amendments indicates that the City Planning Commission intended to make

13
It is undisputed that the calculation of minimum required open space using the ratios
listed in sections 23-14 and 23-142 was the same before and after the 2011 amendments.
- 15 -
 - 16 - No. 88

substantive changes to the definition of open space in response to the BSA’s 2009

resolution. That silence cuts against petitioners’ argument.

The BSA’s interpretation is rational as applied to multi-owner zoning lots. The text,

structure, history, and purpose of the definition of open space show that the BSA’s

interpretation is consistent with—and indeed furthers—the legislative intent of the Zoning

Resolution’s drafters. Giving due consideration to the BSA’s technical knowledge of the

implications for the City’s development of its application of the statute, we conclude that

the BSA’s application of the definition of open space to multi-owner zoning lots is not

arbitrary, capricious, or contrary to law.

Accordingly, the Appellate Division order should be reversed, with costs, the

judgment of Supreme Court reinstated and the certified question not answered as

unnecessary.

- 16 -
WILSON, J. (dissenting):

“ʻOpen space’ is that part of a zoning lot, including courts or yards,

which . . . is accessible to and usable by all persons occupying a

dwelling unit or a rooming unit on the zoning lot” (NY City Zoning Resolution § 12-10)

-1-
 -2- No. 88

(hereinafter “ZR”).1 There is only one plain way to read that language: 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.” Appellant PWV Acquisition, LLC (PWVA) proposes a

different reading: because the Zoning Resolution specifies that open space must be

accessible to all persons occupying “a” dwelling unit, the word “a”—as PWVA notes—

can be read to mean that if all the residents of just one apartment on a zoning lot can access

and use a space, that space is “open space”. That reading may be a grammatically correct

alternative, but it is absurd. No party contends that New York City’s open space

requirements could be satisfied by giving a single luxury penthouse apartment a football-

field sized private roof deck.

It would be one thing if the Board of Standards and Appeals (BSA) had adopted one

of those two interpretations, but it has not. Instead, the BSA advocates for a third definition

of “open space,” one that is wholly absent from the language of the Zoning Resolution.

The lack of any statutory support for the BSA’s interpretation renders the majority’s

lengthy discussion of the principles of administrative law and deference to agency expertise

entirely irrelevant. Agencies cannot rewrite the statutes that empower them; that function

is legislative, not administrative. The majority does not make a credible case that the

BSA’s interpretation can be found in the statutory language. Instead, it concludes we must

defer to the BSA’s interpretation, regardless of the disconnect between that interpretation

1
The Zoning Resolution utilizes a bold and italicized typeface to identify terms that are
defined elsewhere in the resolution. For ease of comprehension, and to avoid confusion
with my own emphasis, I have omitted the resolution’s bold italics throughout this opinion.
-2-
 -3- No. 88

and the clear language of the statute, because the Zoning Resolution uses words that refer

to other words and because land use law is complicated. That reasoning contravenes basic

principles of statutory interpretation. Accordingly, I dissent.

Open space serves important physical and social functions, particularly in a city as

tall and dense as New York. To ensure residents have access to a minimum amount of

open space, New York City mandates that developers in certain residential districts set

aside areas for open space. The amount of space required varies depending upon, among

other factors, the height, use, and square footage of the buildings on the zoning lot (see e.g.

ZR § 12-10 [defining “open space” and “open space ratio”]; id. § 23-144 [noting distinct

open space requirements that apply to affordable residents for seniors]). Reflecting the

multifaceted purpose of open space, the City’s Zoning Resolution sets forth two principal

criteria for open space.2 First, in order to count towards a zoning lot’s quota for open space,

an area must be “open and unobstructed from its lowest level to the sky” (ZR § 12-10),

providing pathways for light and air to permeate a development. Second, the area must be

“accessible to and usable by all persons occupying a dwelling unit or a rooming unit on the

zoning lot” (id.).

The straightforward, sensible and compelling way to read the accessibility

requirement is that to qualify as open space, a given area must be accessible to “all persons”

2
As indicated above, the Zoning Resolution also contains additional requirements and
context-specific exceptions depending on the design and categorization of the building.
For example, open space can be covered by a roof, provided that the roofed area “is not
enclosed on more than one side” and does not exceed “10 percent of the unroofed or
uncovered area” of the zoning lot (ZR § 12-10).
-3-
 -4- No. 88

who reside on the zoning lot.3 That natural reading gives meaning to the plain language of

the statute. Furthermore, it reflects the purpose for which open space exists: to give

residents outdoor areas in which to enjoy light, air and recreation (see ZR § 21-00 [d]).

The second possible reading is one that the appellant-developers, PWVA, note in passing,

although they do not champion it. The phrase “accessible to . . . all persons occupying ‘a’

dwelling unit” could be interpreted to mean that an area counts as open space if it is

accessible to “all persons” who live in at least one dwelling unit. Appellants’ lack of

enthusiasm for that reading undoubtedly stems from its unpalatability when one has the

purpose of open space in mind. Under that reading, a private rooftop garden or large private

tennis court would qualify as open space, negating much of the purpose behind including

the accessibility requirement in the first place.4

3
The majority quotes this sentence and then offers a smorgasbord of hypothetical
challenges. The majority questions how the straightforward reading of the statute could be
squared with the need to “prevent[] residents from access[ing an open space] when a space
reaches a certain occupant load” or when “during a COVID-19 outbreak” crowded use of
the open space would threaten public health (majority op at 14 n 12). My conclusion that
the drafters of the Zoning Resolution intended for open spaces to be accessible to all
residents of a zoning lot—for the purposes of securing a building permit—does not
somehow compel the conclusion that the drafters had either the intention or the authority
to override all fire safety ordinances and emergency public health regulations, or that the
existence of such regulations suggests one interpretation of the Zoning Resolution over
another.
4
The majority states that my understanding of the purpose of open space is “extratextual”
(majority op at 10 n 8). Not so. Section 21-00 (d) lists as one of the “specific purposes”
of the Zoning Resolution the aim of ensuring the “provision of open space in residential
areas wherever practicable . . . in order to open up residential areas to light and air [and] to
provide open areas for rest and recreation.” Such spaces are meant to serve the “general
welfare” (id. § 21-00). In addition, the language of section 12-10 provides ample evidence
that the legislature intended for “all persons . . . on the zoning lot” to have access to open
space. The PWVA’s contrary reading relies upon the far-fetched proposition that the
-4-
 -5- No. 88

Rather than adopt one of the two possible readings of the statute, the BSA has

selected a third position, one that appears nowhere in the statutory text. According to the

BSA, the definition of “open space” encompasses areas that are: (a) accessible to all

residents of an adjoining building, even if (b) those areas are not accessible to residents of

other buildings on the zoning lot, provided that (c) the resulting division of open space is

not “inequitable.” None of the operative criteria relied upon by the BSA exists in the

statute, which makes no allowance for open space to be siphoned off into separate areas of

exclusive recreation. Indeed, the Zoning Resolution does not discuss dividing open space

in any manner. Instead, it requires a plain and simple directive: areas may only count as

“open space” if they are accessible to “all persons . . . on the zoning lot” (ZR § 12-10). The

BSA’s interpretation therefore not only strays far from the text, it contradicts the plain

language of section 12-10, which does not permit developers to count as open space areas

that are useable by “some” but not “all” persons on the zoning lot. The BSA’s

interpretation of the Zoning Resolution may be a reasonable policy position, and if this

were a community meeting, a class on urban planning or—best of all—a legislative

committee meeting, they could have an in-depth discussion of the merits of the BSA’s

legislature, when it specified that “all persons” must have access to open space, was
primarily concerned with eliminating unequal access to open space among residents within
a single dwelling unit rather than across dwelling units. That hypothetical legislative
purpose is wholly absent from the legislative history and does not provide a basis for
adopting the PWVA’s literal (but inane) reading of the statute (see Milbrandt v A.P. Green
Refractories Co., 79 NY2d 26, 36 [1992]). In any event, the majority has selected neither
of those two possible readings, and instead adopted a third reading that lacks any statutory
support.
-5-
 -6- No. 88

proposed vision for open space in New York City. However, as a matter of statutory

interpretation, the BSA’s proposed reading is statutorily unauthorized.

The BSA’s unfounded reading of the statute cannot be saved by appeals to

administrative deference. The question presented on this appeal is an issue of pure

statutory interpretation. In such cases, our precedent is clear: where “the question is one

of pure statutory reading and analysis, dependent only on accurate apprehension of

legislative intent,” we need not rely upon “any special competence or expertise of the

administrative agency” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]).

And, of course, if an agency's interpretation “runs counter to the clear wording of a

statutory provision, it should not be accorded any weight” (People v Francis, 30 NY3d

737, 746 [2018], quoting Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 285-286

[2009] and Kurcsics, 49 NY2d at 459).

Applying that standard, we have repeatedly declined to defer to the BSA’s

interpretation of the Zoning Resolution when, as here, the question involved is one of

purely statutory interpretation (see e.g. Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98,

107 [1997] [declining to defer to the BSA’s interpretation of “floor area” contained in

section 12-10 of the Zoning Resolution, the same definitional section we interpret today];

Matter of Toys “R” Us v Silva, 89 NY2d 411, 419 [1996] [concluding that “the appropriate

legal standard for (determining the meaning of) abandonment under Zoning Resolution §

52-61” is one without “deference to the BSA” because its resolution involves “a pure legal

-6-
 -7- No. 88

question”]).5 In this case, the question presented—what was the legislature’s intent in

enacting section 12-10 of the Zoning Resolution?—is a purely legal question, and,

therefore, deference to the BSA is unwarranted.

Even if, for whatever reason, we decided to disregard settled precedent and afford

deference to the BSA, we nonetheless would have to consider carefully whether there is a

“rational basis” for the agency’s interpretation of the statute (Fisher v Levine, 36 NY2d

146, 150 [1975]). Here, because the BSA’s interpretation of the statute is neither of the

5
The majority’s attempts to distinguish Toys “R” Us and Raritan are unpersuasive. Both
cases applied our longstanding framework for deference to administrative agencies,
starting with the premise that “[w]here ‘the question is one of pure legal interpretation of
statutory terms, deference to the BSA is not required’” (Raritan Dev. Co., 91 NY2d at 102,
quoting Toys “R” Us, 89 NY2d at 419). In both cases, we determined that the relevant
statutory questions involved “pure legal question[s] that do[] not mandate deference to the
BSA” (Toys “R” Us, 89 NY2d at 419; Raritan Dev. Co., 91 NY2d at 103 [declining the
BSA’s invitation to “ignore the obvious interpretation of the Zoning Resolution”]). The
majority makes no real attempt to argue that the question presented in this case, even if it
involves interlocking statutory definitions, is anything but a “pure legal question” (Toys
“R” Us, 89 NY2d at 419). We should therefore reach the same result that we did in Toys
“R” Us and Raritan and conclude that no deference is owed to the BSA. In Toys “R” Us,
after concluding that the “appropriate legal standard” was one without deference to the
BSA, we nonetheless agreed with the BSA as to the proper reading of the Zoning
Resolution, but we did so after an independent inquiry into the meaning of the statute,
unaffected by deference to the BSA (see id. at 419-422). Here, the majority makes no
effort to conduct an independent inquiry into the meaning of “open space,” nor does it
argue that the BSA’s reading is the most persuasive reading of the statute. Instead, it asserts
that the statute is complicated and therefore we should defer. That reasoning is anathema
to our Court’s principles of statutory interpretation and administrative deference. Finally,
the majority is correct that in Toys “R” Us, after we determined the meaning of the crucial
statutory terms, we deferred to the BSA’s factual findings that the property owner in that
case had abandoned its prior usage of the building. That factual question involved a
“weighing [of] the evidence,” including parsing conflicting witness testimony and
reviewing “warehouse logs” to ascertain how the property had been used over the previous
two years (id. at 422-424). In contrast, the present appeal involves no disputed facts.

-7-
 -8- No. 88

two possible readings of the statute, the choice of standard of review does not matter to the

outcome. The BSA’s interpretation contravenes the plain language of the statute and

therefore fails as a rational interpretation of the Zoning Resolution.6

In an effort to locate any support for the BSA’s position, the majority offers an array

of unpersuasive arguments based for the most part on the notion that because the statute is

complex, we should make no effort to understand its meaning, nor must we require the

BSA to present reasonable grounds for its interpretation.7 Other arguments are

fundamentally about policy choices concerning changes over time to the nature of building

ownership. Some of those reasons might convince a legislative body to rewrite the zoning

resolution. But the majority’s justifications for deferring to the BSA are flatly contradicted

by our precedent and none is persuasive.

First, the majority declares that only the BSA’s interpretation gives “salience” to a

critical feature of the statute—the fact that the definitions of “dwelling unit” and “rooming

unit” in the Zoning Resolution both mention that these living spaces are located “in . . .

residential building[s]” (ZR § 12-10). As a guide to understanding the meaning of “open

space,” I question the importance of the majority’s epiphany that apartments exist within

residential buildings. But we can interpolate that feature of the Zoning Resolution directly

6
My colleagues and I do not “fancy[]” ourselves to be “land-use expert[s]” (majority op at
14 n 12), though we claim some modest expertise in interpreting statutes, which is all that
is at issue here.
7
We are told that the “definition of open space in ZR § 12-10 comprises no less than 13
defined terms, many of which cross-reference other defined terms” (majority op at 11), but
the majority makes no effort to analyze those 13 terms and other cross-references to see
whether they matter at all or what interpretation they support.
-8-
 -9- No. 88

into the definition of “open space” and the meaning does not change one bit. Open spaces

must still be accessible to “all persons occupying a dwelling unit [in residential buildings]

. . . on the zoning lot” (id.).

Second, the majority states that because the Zoning Resolution employs a “set of

cross-references and interlocking provisions,” the BSA must be afforded a special level of

deference (majority op at 11). The example the majority gives is that the Zoning Resolution

defines “dwelling unit” in part by reference to a “residential building” which requires

consulting the statute to understand the meaning of “building.” That argument is flawed

on several levels. Clearly, it is foreclosed by our precedent. We have repeatedly declined

to defer to the BSA when interpreting the Zoning Resolution’s interlocking set of

definitions (see e.g. Raritan Dev. Corp., 91 NY2d at 107; Toys “R” Us, 89 NY2d at 419).

Unless the majority can explain why the definition of, for example, “floor area ratio”

should be interpreted differently than “open space,” the majority’s theory of administrative

deference is contravened by controlling law.

The majority’s reasoning is also illogical. It is true that the Zoning Resolution

includes terms of art that must be understood in context. That is a feature of all statutes.

However, the fact that the Zoning Resolution employs terms that are specifically defined

in the statute makes it easier for judges to ascertain legislative intent, not harder.

Definitions mark a path for jurists to follow.8 The situation is far harder when judges must

8
For example, the word “adjacent” in the term “adjacent lot” (ZR § 74-79) has evolved
over time as the City’s policy priorities have shifted, in part to benefit owners of
landmarked properties. In an effort to increase the usefulness (and lucrativeness) of
transferrable development rights, New York City expanded the definition of “adjacent lots”
-9-
 - 10 - No. 88

interpret statutes that turn on broad and undefined terms, such as the requirement for

utilities to charge “just and reasonable” rates (Public Service Law § 65 [1]). It is precisely

because the City Planning Commission has defined critical terms such as “open space” and

“zoning lot” that we are able to reach clear conclusions as to what the Zoning Resolution

requires.

Third, the various provisions the majority cites as sources of ambiguity are

irrelevant to the statutory question at hand. Perhaps that is why the BSA itself has not

argued that the definition of a “room” or a “residential building” is essential for resolving

the present dispute. If we were called upon to decide whether someone who lived in a

Winnebago parked on the zoning lot had a legal right to access open space, we might need

to delve into the nuance of how the Zoning Resolution defines “dwelling unit” or “room.”

Here, no party disputes that the residents of the three Park West Village buildings qualify

as “persons occupying a dwelling unit or rooming unit on the zoning lot” (ZR § 12-10).

The Zoning Resolution is clear that “all” such persons must be able to access open space,

and the vast majority of the provisions cited by the majority play no role in the resolution

of this lawsuit.

in 1968 to permit owners of landmarked sites to sell unused development rights to non-
contiguous (but still proximate) parcels located across streets and intersections (see
Margaret Giordano, Note, Over-Stuffing the Envelope: The Problems with Creative
Transfer of Development Rights, 16 Fordham Urb LJ 43, 43 n 4 [1988]). A reader who
relied solely on a common dictionary to understand the meaning of “adjacent” would be
led astray. Fortunately, the Zoning Resolution defines “adjacent lot” (see e.g. ZR § 74-79
[defining adjacent lot for the purpose of transferrable development rights for landmark
sites]). Although the majority is correct that the Zoning Resolution employs technical
vocabulary, technical does not mean judicially indiscernible.

- 10 -
 - 11 - No. 88

A statute might come along that is uninterpretable because it is pure gibberish, but

here, the statute’s words can at most be read in two ways, only one of which is sensible,

and neither of which the majority adopts. We should not permit administrative agencies to

rewrite statutes or exceed the restrictions placed on them by law (see Matter of Tze Chun

Liao v New York State Banking Dept., 74 NY2d 505, 510 [1989] [“Administrative agencies,

as creatures of the Legislature within the executive branch, can act only to implement their

charter as it is written and as given to them . . . An agency cannot create rules, through its

own interstitial declaration, that were not contemplated or authorized by the Legislature

and thus, in effect, empower themselves to rewrite or add substantially to the administrative

charter itself”] [internal citation omitted]).

Lacking support in the text of the statute, the majority attempts to invoke the

legislative history of the Zoning Resolution, an interpretative guide that is unnecessary

when the plain text of a statute is clear (see Matter of Roosevelt Raceway v Monaghan, 9

NY2d 293, 304-305 [1961]). Even were we to consider the scant legislative history cited

by the majority, those materials do not illuminate the present question. The majority notes

that a handbook published by the City Planning Commission in 1961 advertised that open

space under the new Zoning Resolution would be “accessible to all residents of a building”

(majority op at 13). The majority gives no indication that this portion of the handbook was

written with multi-building zoning lots in mind, and accordingly, we can divine very little

from that stray quote. (Moreover, the quote strongly suggests that the second possible

interpretation of the open space requirement is suspect.)

- 11 -
 - 12 - No. 88

The majority then pivots 180 degrees and argues that the drafters of the 1961 Zoning

Resolution did not anticipate the problems arising with multi-owner zoning lots because

these lots were not permitted until 1977. I cannot reconcile the majority’s conclusion that

the legislative history supports the BSA’s reading if, as the majority claims, the drafters of

the Zoning Resolution did not envision the situation that has arisen here. Regardless, this

second argument is dubious as a historical matter and irrelevant as a legal one. As a matter

of urban history, the phenomenon of zoning lots with more than one building predates the

1961 zoning resolution. Although this dispute presents a situation where portions of the

zoning lot are owned by different entities, the BSA’s interpretation of “open space” rests

upon a rationale that is not dependent upon whether a zoning lot has one or more owners.

Instead, the BSA contends that no violation of the open space requirement occurs when, in

a multi-building lot, developers divvy up open space into zones of exclusive access

building-by-building. Because multi-building lots predate the 1961 or 1977 amendments

to the Zoning Resolution, the situation here was not one beyond the capability of the

drafters to envision.

Interesting as the urban history exercise might be in some other context, it is

irrelevant as a matter of statutory interpretation. The majority’s view—that new problems

have arisen, and therefore the BSA can avoid clear statutory directives—is simply

unavailing. Our Court has made clear that “[t]he courts are not free to legislate and if any

unsought consequences result [from the continued application of a statute], the Legislature

is best suited to evaluate and resolve them” (Bender v Jamaica Hosp., 40 NY2d 560, 562

[1976]; see also Ivey v State, 80 NY2d 474, 480 [1992] [“In essence, the State is asking

- 12 -
 - 13 - No. 88

the Court to rewrite, not just interpret, the statute. This we may not do”]). Contrary to the

majority’s holding today, the BSA is not exempt from the basic requirement to abide by

the language of the statute, even if that language creates hurdles for certain forms of

development as New York City changes and grows (Raritan Dev. Corp, 91 NY2d at 107

[“The solution (to a perceived problem in the Zoning Resolution) is for the City to legislate

a different definition if that is its intent, to be manifested by the ordinance itself”]). If

compliance with the Zoning Resolution poses challenges, the proper recourse is to the City

Planning Commission, which has proven to be an active steward of the Zoning Resolution.

Since 1961, the City Planning Commission has overseen approximately “10,000

amendments . . . to the [zoning] resolution” (New York City Dept. of City Planning,

History Button: DCP’s Digital Zoning Resolution Now Includes a Full Legislative History

[June 19, 2019], https://www1.nyc.gov/site/planning/about/press-releases/pr-

20190619.page).

Finally, the majority asserts that we must defer to the BSA’s understanding of the

“feasibility” of complying with the Zoning Resolution. The responses above are sufficient

to refute that point. The open space requirement has remained static for 60 years. If

changes to the urban landscape have rendered it unworkable, those concerns must be

addressed to the City Planning Commission. Changes to the urban landscape do not

themselves change the law and do not excuse BSA from complying with the clear text of

the Zoning Resolution.

As a further point, the majority’s view of “feasibility” mischaracterizes the purpose

of the Zoning Resolution. The core premise of as-of-right zoning is that all residents of

- 13 -
 - 14 - No. 88

New York City—developers, neighbors, and city planning officials—benefit from clear

rules concerning legal entitlements to develop land. To advance those aims, the Zoning

Resolution sets out minimum requirements for as-of-right construction, and then invites

developers to design and create within those constraints—or seek variances from them. In

the context of an as-of-right zoning system, an objection that complying with the Zoning

Resolution renders infeasible certain forms of development is really no objection at all.

Every design constraint limits what can be built as of right: that is a basic consequence of

any land use regulation. The requirement that open space be accessible to all residents of

the lot does not eliminate a property owner’s ability to build. Instead, it simply supplies

another design constraint that developers and architects must consider.

In this case, the developers of 808 Columbus Ave built a 29-story residential tower

with two adjoining commercial wings, one of which includes a high-end grocery store.

The developers’ decision to make the rooftop gardens atop the grocery store accessible

only to residents of the adjoining tower was based on the BSA’s erroneous reading of the

Zoning Resolution. If instead, the BSA had interpreted the statute correctly, a developer

like 808 Columbus Ave, LLC would still have an array of design possibilities for how to

utilize the parcel. The developer could: (a) provide key card access to residents of other

buildings on the zoning lot (appellant JHL committed to doing just that with the Meditation

Garden in its proposed nursing home, representing to the Department of Buildings that it

would provide “every resident of the zoning lot . . . [with] a key card to access” the garden),

(b) build a 29-story building without an adjoining grocery store, if the addition of the store

removed necessary open space, (c) construct a smaller residential tower which needs less

- 14 -
 - 15 - No. 88

open space and then build only one commercial wing rather than two, (d) subdivide the

zoning lot (see ZR §§ 12-10, 23-72), or (e) pursue some other possibility entirely.

Developers are eminently creative tacticians when it comes to designing within the

constraints of the Zoning Resolution, a fact made abundantly evident by the land-swap that

PWVA and JHL conducted in order to make use of the fact that a nursing home would

require less open space then other residential buildings.

Indeed, the subsequent history here utterly undermines the majority’s view that the

literal interpretation of the open space requirement is infeasible. After the Appellate

Division annulled the BSA’s decision, the developer, PWVA, submitted plans for a

completely different building that proposed less encroachment on the existing open space

on the zoning lot. “Feasibility” cannot turn on this Court’s judgment about which building

is preferable or, indeed, whether any building is preferable.

New York City has determined that the city benefits from clear design constraints

arrived at through a process of political and community input that resolves competing

visions for what the city should look like. Those understandings of how the city should

grow and develop are codified in the Zoning Resolution. Developers build within those

constraints; the BSA resolves disputes, pursuant to its delegated authority; the City

Planning Commission updates the Zoning Resolution as needed; and courts serve as final

arbiters of the meaning of the Zoning Resolution. That is how the system is supposed to

work. Permitting the BSA to rewrite the definition of open space upends that statutory

structure.

- 15 -
 - 16 - No. 88

Order reversed, with costs, judgment of Supreme Court, New York County, reinstated
and certified question not answered as unnecessary. Opinion by Judge Feinman. Chief
Judge DiFiore and Judges Stein and Garcia concur. Judge Wilson dissents in an opinion
in which Judges Rivera and Fahey concur.

Decided December 17, 2020

- 16 -