Architect self-certified applications with incorrect zoning. Architect David Nagan was hired in 2004 to prepare a zoning analysis for two adjacent lots in Queens. Nagan determined the lots were in an R3 district, which allowed for the construction of two, two-family semidetached homes with a common wall along the lot line. In April of 2005, the City Council rezoned the lots to R3X, a zoning district that prohibited semi-detached homes. About six months after the zoning change, Nagan submitted two self-certified applications to Buildings for permits to construct both semidetached homes. Buildings granted the applications, and construction was completed in 2006.

After Buildings performed an audit, it determined that the zoning designation for each application was incorrect and petitioned to have Nagan excluded from the self-certification program. The petition cited a recently enacted Administrative Code amendment that required mandatory sanctions against an architect who submitted two incorrect self-certified applications within a 12-month period. At his hearing, Nagan argued that the recently enacted amendment should not retroactively apply to the applications he submitted two years before the amendment was passed. (read more…)

Buildings’ suspension of license pending criminal trial overturned by OATH. On October 29, 2008, Testwell Laboratories, a licensed concrete testing laboratory, and V. Reddy Kancharla, a licensed site safety manager, were indicted on charges of enterprise corruption, grand larceny, scheme to defraud, offering a false instrument for filing, and falsifying business records. The next day, the Department of Buildings imposed pre-hearing suspensions on both, claiming that their conduct created imminent jeopardy to the public safety. Subsequently, Buildings filed a petition to suspend Testwell and Kancharla’s licenses, participation in the self-certification program, and professional filing privileges until the criminal case was resolved. Buildings claimed that Testwell and Kancharla violated the construction code by making materially false statements, participating in fraudulent dealings, and demonstrating negligence, incompetence, or disregard of the code. Buildings submitted only the indictment as evidence for the suspensions.

OATH ALJ Tynia Richard dismissed the charges, ruling that an indictment was not grounds for license suspension under the construction code and could not be considered evidence to prove the allegations. Even if considered evidence, the indictment could not provide the standard of proof required at OATH for license suspensions. Finally, Richard found that Buildings was authorized to suspend licenses and self-certification privileges prior to a hearing for no more than five days provided there was a finding of imminent jeopardy. Buildings was not authorized, however, to suspend the professional filing privileges without a hearing. (read more…)

Building owner inspected facade after allotted time. Beginning in 1980, owners of buildings taller than six stories were required to conduct a critical examination of their buildings’ facade every five years. Each five-year cycle required submission of a technical report following examination. In February 1999, the Department of Buildings accepted the last of the fourth round technical reports. Building owner J.T. Tai Co., Inc. conducted a facade examination in December 1999 for its property at 246 East 46th Street in Manhattan, and filed the accompanying technical report in January 2000, which Buildings accepted as a fifth round report. Since J.T. failed to submit a report based on an examination conducted within the fourth cycle, Buildings charged J.T. with failing to file a fourth round report in violation of the Administrative Code. An ALJ sustained the violation.

Six months later, Buildings again issued a Notice of Violation to J.T. for failing to file the fourth round report. An ALJ dismissed the violation, deciding that J.T.’s failure to file a fourth round report was not a continuing violation. The ALJ determined that Buildings did not rebut J.T.’s contention that it was precluded from filing a fourth round report. (read more…)

Board reverses ALJ, finds that lot was vacant when owner purchased property. 1115 Ocean Parkway LLC purchased a vacant lot in the Midwood section of Brooklyn and constructed a five-story building. An officer issued a Notice of Violation after he observed that a building had been demolished without a permit prior to the new construction. At a hearing, the owner claimed that the lot was vacant when it purchased the property, and submitted a recorded deed and accompanying survey that showed a vacant lot. The ALJ upheld the NOV, determining that the owner’s evidence was not convincing especially since the deed referenced the owner’s lot through a handwritten note and the survey contained no lot number.

The owner appealed to ECB, arguing that the recorded deed and survey proved the lot was vacant when the owner purchased the property. The Board agreed with the owner, reversed the ALJ’s decision and order, and dismissed the NOV. The Board ruled that the lot was vacant at the time of purchase, noting that the deed was recorded under the block and lot identified in the NOV and that the lot line boundaries on the survey matched the metes and bounds description of the lot on the recorded deed. (read more…)

Removal of exterior wall required prior registration with DEP. 116 Third Place LLC hired a general contractor to manage demolition at 116 Third Place in the Carroll Gardens neighborhood of Brooklyn. The general contractor hired a subcontractor, who demolished an entire exterior wall of a building. An officer discovered that the subcontractor demolished the wall without first registering with the New York City Department of Environmental Protection, and issued Notices of Violation to all three companies.

At a hearing before an ALJ, the companies argued that the NOVs were defective since the issuing officer noted that demolition had occurred without a “permit” yet the statute cited in the NOVs required registration, not a permit. The companies alternatively argued that removal of the rear wall of the building did not require registration with DEP since the removal did not amount to a demolition. The companies further argued that only one of the three could be responsible for the violation. (read more…)