It is difficult to appreciate the ample size of this plaza because so much of it is under landscaping. A sliver of space parallels the blockfront on the east side of Second Avenue between East 39th and 40th Streets. The ledge bordering the manicured bushes, flowers, and gravel rises along the sidewalk as it makes its way south, allowing the user to find that height best suited to his or her seating preference. Behind the ledge is a semicircular drop-off driveway, although the portion underneath the building itself is not bonused and thus not public.
The majority of plaza surface, at north and south sides of the building, is covered by an impenetrable, diverse landscape of ivy, medium-size bushes, and mature full-canopied trees. Birds are heard chirping away in the heart of the space, but the closest that human users are able to get is along the perimeter ledges where, depending on the ledge slant, seating is or is not possible. Because this space fails to incorporate the human user in its landscape, and indeed renders most of the surface physically inaccessible, the question arises how it comports with the 1961 Zoning Resolution. That Resolution defined a plaza as “an open area accessible to the public at all times,” not “more than five feet above nor more than twelve feet below the curb level of the nearest adjoining street . . . unobstructed from its lowest level to the sky.” The only permitted obstructions were “arbors or trellises, awnings or canopies, railings no less than 50 percent open and not exceeding three feet, eight inches in height, flag poles, open terraces or porches, steps, ornamental fountains or statuary, or unenclosed balconies.” Is the word “arbor” sufficiently capacious to incorporate this type of landscaping? Is it enough that a plaza be visually accessible, but physically inaccessible, to humans?