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).