Repairs to building subject to 1938 Building Code triggered new minimum height requirements. In February, June, and October of 2010, Buildings issued notices of violation to the owner of 331 Columbus Avenue, Manhattan. The issuing officer in each instance observed the same violation of the 2008 Construction Codes: brick parapet walls on the roof were not 42 inches in height.

At a hearing, the owner conceded that the walls in question were less than 42 inches in height, but argued that the 1938 Building Code, and not the 2008 Building Code, applied to the building. The owner submitted a 1988 certificate of occupancy in support of this contention, and also submitted a Buildings- approved application from 2007 which requested review under the 1938 Building Code. The application sought to replace and repair the parapet walls.

Buildings countered that the parapet walls would have remained “grandfathered” under the 1938 Building Code had the 2007 work not been performed. But, Buildings continued, performing the approved work in 2007 subjected the work to a 1960 amendment to the 1938 Building Code. The amendment required that parapet walls have a height of 42 inches. An ALJ ruled against the owner, and the owner appealed to the Environmental Control Board.

The Board denied the appeal, ruling that the owner had violated the cited section of the 2008 Construction Codes by failing to comply with the 1938 Building Code, as amended in 1960. Once the owner elected to alter the building in 2007 under the 1938 Building Code, compliance with the 1960 amendment became necessary.

NYC v. 60 West 76th Street, ECB Appeal No. 1100643 (Sept. 22, 2011).

Adolfo Carrión, Jr. hired architect for private job at same time architect worked on project that Carrión later recommended for approval. Hugo Subotovsky worked as an architect on a Bronx development project known as Boricua Village. Atlantic Development Group LLC was the developer, and Peter Fine, one of Atlantic’s principals, was part of the team seeking City approval for the project through the City’s land use review process. Subotovsky was also part of this team. During the approval process, then-Bronx Borough President Adolfo Carrión, Jr. asked Fine, his friend, about hiring an architect for renovation work on his home. Fine suggested Carrión speak to Subotovsky, and Carrión later hired him to do the work. Carrión did not know of Subotovsky’s involvement in Boricua Village, but knew him as an architect that had worked on other projects that were submitted to the Bronx Borough President’s office for review.

Subotovsky performed the architectural work for Carrión, and the Department of Buildings issued the corresponding work permits on January 21, 2007. On or about January 22, 2007, the Boricua Village project was sent to Carrión’s office for review, and Carrión recommended its conditional approval. Carrión paid the builders after the initial work was completed, but Subotovsky did not issue a bill at this time. Subotovsky sent Carrión a bill about two years later, after the Daily News investigated the matter and after Carrión obtained a final survey.  (read more…)

Distinction between basement and cellar explained. The Department of Buildings issued Supreme Company LLC a notice of violation for failing to file a required report concerning the periodic inspection of the exterior walls of its building at 1659 York Avenue in Manhattan’s Upper East Side. Supreme contested the NOV at a hearing before an ALJ, claiming that it was exempt from the filing requirement since its building did not exceed six stories. Supreme’s architect stated that the certificate of occupancy showed that the building had six stories plus a cellar. Buildings claimed the lowest floor was not a cellar, but rather a basement.

Pursuant to the City’s Building Code, cellars were not counted as stories when measuring the height of a building. Basements, on the other hand, were counted as stories. The Building Code defined “cellar” as a portion of a building that is partly or wholly underground and has one-half or more of its clear height below the grade plane. “Basement” was defined as a story partly below the grade plane and having less than one-half its clear height below the grade plane.  (read more…)

East Village building’s C of O authorized meeting room, not current bar use. In 1922, the owner of 85 East 4th Street in Manhattan obtained a certificate of occupancy authorizing the building’s second floor to be used as a meeting room. Since 1948 the second floor had instead been used as a tavern space, currently occupied by the KGB Bar. On June 9, 2010, Buildings issued the building’s current owner, Culture House, a notice of violation for permitting a use contrary to the C of O.

At a hearing, Culture House argued that it was not required to obtain a new C of O for the changed use of the second floor. Pursuant to the 1968 building code, which applied to buildings predating the 2008 building code, a new C of O was not needed for changes within the same zoning use group. In this case, a meeting room and an eating and drinking establishment are both included within zoning Use Group 6. Culture House further claimed that no changes had been made to the premises that would trigger a need for a new C of O. The 1922 C of O permitted up to 40 occupants, and the bar had seating for a maximum of 37 patrons. (read more…)

Building owner unaware that subtenant erected cash loans advertising sign. Buildings issued four notices of violation charging the owner of 329 Wyckoff Avenue in Ridgewood, Queens with illegally erecting an outdoor advertising sign for cash loans. The owner removed the sign from its building immediately after receiving the NOVs. At a hearing, the building’s property manager claimed that the owner had not authorized the sign, and was unaware that the sign had been installed on the building. The property manager claimed that the building had been subject to a net lease since 1967, which gave the owner no day-to-day control over the property. The net lessee had rented out spaces to various subtenants, and one of these subtenants had erected the sign without authorization

An ALJ sustained the NOVs, finding that a building owner was responsible for the actions of its tenants. The owner appealed to the Environmental Control Board, arguing that it was not acting as an outdoor advertising company because the subtenant erected the sign without the owner’s knowledge or consent. (read more…)