Four-foot tall iron fence blocked access to public plaza. After the Dept. of City Planning received complaints about an obstruction to a public plaza, a Buildings inspector was sent to the site at 733 Park Avenue in Manhattan. The inspector observed a four-foot tall iron fence surrounding the entire plaza and separating the public sidewalk from the garden area and the plaza’s walkways. The inspector issued a violation to the owner, charging it with failing to comply with the terms of an as-of-right plaza bonus by not providing 24-hour public access to the plaza in violation of the City’s Zoning Resolution.

An ALJ upheld the violation, ruling that the owner was obstructing access to the public plaza with a four-foot tall fence. The ALJ found that the owner was supposed to provide a plaza for public use in exchange for a floor area bonus that it received in connection with construction.

The owner appealed, claiming that the fence was not a prohibited obstruction because it contained openings to allow for access to the plaza’s walkways. Buildings countered that the fence obstructed free and open access to the plaza as required by the Zoning Resolution. Buildings further argued that the Zoning Resolution required that a plaza be unobstructed from its lowest level to the sky. In this case, Buildings claimed that only 15ft. of the 170ft. of the plaza’s frontage provided open and free access to the plaza.

The Environmental Control Board denied the appeal, ruling that the four-foot fence, with openings in less than ten percent of the plaza’s frontage, was a violation of the Zoning Resolution. The Board found that a wrought iron fence was not a permitted obstruction, only railings were permitted provided that they were no more than three feet and eight inches high. The fence could not be considered a trellis or arbor, but rather a barrier that impeded access from the sidewalk to the garden.

New York City v. 733 Tenants Corp., ECB Appeal No. 41202 (June 26, 2008). CITYADMIN