Respondent previously relied on an agency email waiving excavation requirements.  On March 11, 2015 a Department of Buildings inspection officer issued notices of violation to Monadnock Construction for thirty building sites along the length of Egan Street in East New York, Brooklyn.  The notices were issued because the construction sites had begun excavation without notifying Buildings and obtaining excavation numbers for each site.  Monadnock contested the notices and argued they submitted the necessary AI-1form to obtain a Buildings waiver of all excavation requirements for the thirty sites.  Monadnock presented an email from a Buildings assistant plan examiner confirming the excavation requirements for “all Egan Street” were waived.  The hearing officer decided in favor of Monadnock, finding they reasonably relied on the Buildings statements.  Buildings appealed.

On appeal, Buildings argued only the excavation permit requirements were waived and not the requirements of giving Buildings prior notification of the excavation.  Buildings argued the Building Code governed prior notification requirements under a separate section than excavation requirements and a waiver of excavation requirements could not simultaneously waive prior notification.  Monadnock did not respond to the appeal.

On December 17, 2015 the Environmental Control Board granted Buildings’ appeal, reinstating the thirty notices of violation against Monadnock for a total civil penalty of $36,000.  The Board agreed that an excavation waiver could not simultaneously waive prior notification requirements under the Building Code.  The Board also found Monadnock did not establish reasonable reliance because they did not enter the submitted AI-1form into the record, only Buildings’ response email, and it could not be reasonably understood that the waiver sought included the prior notification requirement.

NYC v. Monadnock Construction, Inc. ECB Appeal No. 1501032 (Dec. 17, 2015).