Board found that Buildings retroactively applied building code provision after architect allegedly self-certified non-conforming plans. In 2006, architect David Millner submitted to Buildings self-certified alteration plans depicting the replacement of a 69 sq.ft. rear deck and the enlargement of a basement bathroom in a three-story home built in the 1930s at 1-69 Beach 91st Street in Rockaway Beach, Queens. Buildings audited the plans and in February 2010 issued Millner a notice of violation for submitting certified plans that did not conform to applicable laws pursuant to a section of the building code enacted in July 2008. According to the NOV, Millner’s plans depicted a rear yard of less than two feet, rather than the 30- foot rear yard required by the zoning resolution, and a rear deck made of combustible materials built within three feet of the property line. Buildings also claimed that the bathroom enlargement increased the building’s non-compliance with permitted floor area regulations.

At a hearing, Millner argued that the building complied with zoning requirements since it was built prior to the adoption of the 1961 zoning resolution. Milner pointed out that the plans did not increase the building’s pre-existing non-compliance because he replaced the existing deck with a 43 sq.ft. deck. Millner further argued that Buildings violated its own procedure by auditing the plans more than ten days after they were approved. Buildings contended that the plans violated the building code because they did not comply with current zoning requirements and claimed that there was no time limit for auditing building plans.An ALJ upheld the NOV.

Millner appealed to the Environmental Control Board, arguing for the first time that he could not be found in violation because the building code section he allegedly violated did not become effective until almost two years after the plans were submitted. The Board agreed and dismissed the NOV, finding that Buildings had retroactively applied the cited building code section. The Board stated that while it did not normally consider new arguments on appeal, a “fundamental precept of law” is that a statute may not be retroactively applied to prior conduct. The Board went on to find that Buildings had also incorrectly interpreted the zoning resolution. According to the Board, up to 75 percent of a non-complying structure built prior to 1961 may be reconstructed as long as the work does not increase non-compliance or create a new non-compliance.

NYC v. David Millner, ECB Appeal No. 1000535 (Nov. 18, 2010). CITYADMIN.