An unwelcome surprise awaited many co-op and condominium boards beginning in 2017, which will continue to surprise boards through 2018 and thereafter, when five-year inspections under the New York City Department of Buildings (DOB) Façade Inspection Safety Program (commonly known as Local Law 11/98) (LL11) are required to be performed. Boards learned (or will learn) that the DOB is enforcing a requirement that sets a strict 9th Cycle deadline by which balcony enclosures must be legalized or removed. Failing to do so could result in the building's inability to timely file a “Safe” or “SWARMP” LL11 inspection report with DOB.

This column discusses the dilemmas posed by this DOB policy, how we got there, and makes recommendations to boards, managers, owners, and to the DOB as to how to best address such dilemmas in an equitable and practical manner.

DOB Balcony Enclosure Regulation

On June 17, 1976, the DOB issued a memorandum regarding what was becoming an increasingly common practice among apartment owners—to enclose balconies with open screening, metal or glass panels. (Memo of June 17, 1976—Enclosed Balconies) (the 1976 DOB Memorandum). The Memorandum addressed two significant aspects of such enclosures. First, for readily removable enclosures (including those with solid panels), building notices were required to be filed with DOB. Second, such enclosures would not be counted as Floor Area for zoning purposes. The Memorandum emphasized that such an enclosed balcony was not to be used as a “room,” and could not contain heating, ventilation, or air-conditioning systems.

During the subsequent decades, apartment owners continued to enclose their balconies, frequently turning them into “rooms” which were incorporated into their apartments. Often, this work was performed without a DOB permit and without board approval.

The 2011 Amendment

On Oct. 2, 2011, the DOB effectively amended its 1976 Memorandum (1 RCNY §101-14) (the 2011 Amendment). Enclosures less than 40 feet above ground and which only screened-in a balcony could continue to be installed without a DOB permit. However, enclosures with windows and solid walls would require DOB permits.

Also in 2011, the DOB expanded LL11, requiring that an enclosed balcony be part of a building's façade inspection. This marked the beginning of a series of DOB requirements regarding enclosed balcony documentation/permits.

However, in the absence of active DOB enforcement, both the 1976 Memorandum and 2011 Amendment were largely honored in the breach; apartment owners continued to enclose balconies with solid walls and windows without obtaining DOB permits, nor was board approval generally obtained.

Rescission of the 1976 DOB Memorandum

Finally, on Dec. 3, 2014, the DOB issued Bulletin 2014-024, which essentially rescinded the 1976 Memorandum (Buildings Bulletin 2014-024 Technical, Dec. 3, 2014) (the 2014 DOB Bulletin)—it sets a strict deadline of Cycle 9 of LL11 by which owners must legalize such enclosures, or the building's owners/boards would face steep fines (because, absent legalization, “Safe” LL11 reports cannot be filed or would be late), and experience delays in the issuance of DOB permits for building work and apartment alterations. The Bulletin “reminded” façade inspectors that balcony enclosures must have permits and if such permits were not documented/of record, the building's LL11 inspector must so note in the LL11 report and notify the building owner of DOB's permit requirement; either the balcony enclosure must be “permitted” (i.e., a permit issued) or removed before the next inspection cycle.

The 2017 DOB Summary

Most recently, in July 2017, the DOB issued its Industry Summary on FISP requirements for balcony enclosures (the 2017 DOB Summary), which further spelled-out the basis for the dilemmas posed for apartment owners and boards. (Industry Summary on FISP
Requirements for Balcony Enclosures, July 2017.) The DOB made explicitly clear that a screened balcony enclosure installed prior to Oct. 2, 2011 does not require a permit, but evidence of such 2011 installation must be provided to the DOB. Otherwise, the screened balcony must be “permitted” or the screening removed.

More importantly, balcony enclosures with solid walls or windows must have a permit and cannot be used as or have the indicia of a dwelling “room” (i.e., plumbing, heating and the like).

Most importantly, the Summary provides that balcony enclosures with solid walls increase the building's Floor Area (i.e., the lawful size of the building). The New York City Zoning Resolution determines the maximum amount of Floor Area that a building may lawfully have (FAR) (New York City Zoning Resolution 12-10). However, because of changes in the Zoning Resolution over the past decades, the maximum FAR for many older buildings has been reduced. While this results in such buildings being “overbuilt” under the current Zoning Resolution, they are “grandfathered” so long as their FAR was lawful when they were built. Newer buildings were and are generally constructed so as to use their maximum FAR. Therefore, there may not be sufficient remaining FAR available (if any) to allow for the lawful “permitting” of an enclosed balcony with solid walls. If so, absent a variance, a building/apartment owner must restore such balcony to its original condition.

The Current Importance of DOB's Policies

Many buildings are now engaged in their first LL11 inspection since the 2014 DOB Bulletin was issued, because such inspections, are only required every five years. Given the Cycle 9 deadline for “permitting”/legalization or removal of balcony enclosures, this may leave insufficient time for buildings to address/correct these conditions, determine appropriate responsibility for the same (as between the building/board and the apartment owner), and allocate resources accordingly—without which they cannot file their inspection reports as “Safe”.

Further, the “permitting”/legalization process may face challenges because a building lacks sufficient FAR for enclosed balconies to be legalized.

Recommendations

The DOB has explained in its various memoranda and communications with the architect/engineer community that the purpose for requiring the “permitting” of balcony enclosures is to promote public safety—by ensuring that such enclosures are structurally sound.

With respect, this purpose can be achieved without imposing the hardships that the current DOB policy imposes on apartment owners and boards/buildings.

First, the DOB could extend the deadline to legalize existing balcony structures from a Cycle 9 to Cycle 10, or otherwise allow such structures to remain legal under SWARMP (i.e., safe with a repair and maintenance program). Structural safety concerns would be addressed during current/ongoing LL11 inspections and only structurally sound enclosures would be allowed to remain; however, resolution of enclosure legalization would be deferred.

In addition, where FAR variances are necessary in order for permits to be granted, issuance of such variances should be supported by the DOB, as a matter of sound policy at the present time, so as not to reduce the marketable value of apartments which include such enclosures (and which have been inspected and determined to be structurally sound) and of buildings where such enclosures are common.

For boards and managers, upon being advised by the building's LL11 inspector that “unpermitted” enclosures exist, immediate steps should be taken to communicate with the impacted apartment owner in order to start the process to have such enclosures “permitted” or removed, and the board's professionals should be consulted regarding establishing the legality of the enclosure if the apartment owner wishes to retain it. Who bears the cost of these legalization efforts (as between the board/building and the apartment owner) should be determined on a case-by-case basis, and should include a determination of whether board consent to the enclosure was obtained. Lastly, boards and managers should be vigilant to ensure that no further balcony enclosures are allowed to be constructed without board approval and a determination by the building's appropriate professionals that there is sufficient remaining FAR to allow the required “permitting” of the enclosure. And, DOB permits must be obtained.

Eva Talel is a partner at Stroock & Stroock & Lavan and an adjunct professor at New York Law School. Sunny Velez, Policy Analyst at The Real Estate Board of New York, Margaret Jones, a research librarian at Stroock, and Therese Puccio-Nadolski, a legal assistant at Stroock, assisted in the preparation of this column. Stroock is counsel to the Real Estate Board of New York.