Gallet Dreyer & Berkey, LLP | Required Notifications to Neighbors About Construction – New Amendments to the New York City Building Code
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Required Notifications to Neighbors About Construction – New Amendments to the New York City Building Code

2/6/19 | By: Eugene H. Goldberg, Esq.| GDB 2019 Winter Newsletter
A new law applicable only to New York City requires the Department of Buildings (DOB) to give three notices to adjacent property owners (neighbors) when a property is going to be the subject of construction. The notices are required:
 
  • First, when the DOB receives an application for approval of construction plans.
  • Second, when the DOB receives an application for a building permit based on DOB approved plans.
  • Third, at least 30 days before construction/demolition work begins. The notice must include a copy of the building permit and proof of insurance.
 
Legislative history shows that the new law was not intended to apply to excavation.
           
The new law (passed by the State legislature) grew out of the collapse of a Brooklyn building undergoing repair.  The building shared an interior party wall with an adjacent building.  During repair, structural failures in the party wall were observed on one side only, in the adjacent building.  On the other side, construction professionals and the DOB saw nothing.  The law encourages adjacent residents to look out for unsafe construction conditions.
 
The DOB has historically ignored most neighbor comments as to DOB plan approvals and permit granting.  The new law is an implicit invitation to a neighbor, who may be affected by a construction project next door, to participate at the DOB.
The notices are at three different times.  Notice of plan submission is at an early stage.  The neighbor may seek amendment of the proposed construction plans to reflect concerns.  Incidentally, if the owner doing the construction needs access to the adjoining property for construction operations, this should also start negotiations for a license/access agreement.
 
The second notice is warning that construction operations are likely.  The neighbor who now raises his concerns to the DOB may affect construction means, methods and safety plans.
 
The neighbor who waits for the third notice—the building permit and proof of insurance--has little opportunity at the DOB to affect construction means, methods, or safety plans.  This notice warns of imminent construction. The neighbor should call the DOB if problems arise during construction.  If damage occurs during construction operations, the adjacent owner knows the name of the contractor and the identity of its liability insurer if a lawsuit is necessary.
 
The DOB has for some years required a contractor to file a DOB proof of insurance form and insurance certificate.  The DOB form requires an insurance broker to swear to the accuracy of the insurance certificate.  The DOB form will now be provided to a neighbor.  A broker who misrepresents insurance coverage may be liable to a neighbor relying upon the DOB form.
 
The law leaves many questions unanswered.  Who is entitled to the notice as an “adjacent owner” – the condominium/cooperative apartment owner immediately upstairs, downstairs, next-door, or the owner of the adjacent lot 150 feet away?  Does notice depend upon the type of construction operations (e.g. one rule for pile driving and another for installing a new electrical fixture), or will there be a simple bright line rule?  Should an alteration permit be treated the same as a new building application?  Why not notify adjacent tenants?  Will the DOB administratively require an expediter, submitting plans/permits, to provide stamped, addressed envelopes and form notices for mailing to adjacent owners?
 
We expect these questions to be answered gradually, as the DOB administers the new law.  Meantime, if you, as a neighbor, receive a DOB notice that there is going to be construction next door, take advantage of your right to be involved in the process to protect your property.