The Permit Process Gets Increasingly Complex and Confusing for Owners
For this past year, the process by which apartment building owners obtain approvals for alteration and demolition work has been the subject of extensive media coverage and, as a result, increasing government attention.
Initially, the issue related to the so-called PW1 form used by the City’s Department of Buildings (DOB). Towards the end of that multi-page form, owners are asked, in Section 26, to check boxes indicating whether the building is expected to remain occupied during the construction work and, if so, whether the occupants are subject to rent control or rent stabilization. Apparently, because some owners did not accurately respond to one or both of those questions, the assumption was that owners were engaging in some form of unlawful activity, such as harassment.
In response, effective December 18, 2018, DOB issued a Service Notice which provides that it will not process applications where the owner indicates that the building is either not occupied or not occupied by rent-regulated tenants and information obtained from DHCR “indicates that the building contains at least one rent-regulated unit…. If the answer to either statement is ‘No,’ the applicant must submit supporting documentation, such as an order or letter from DHCR, to proceed with the application.”
If units are occupied, the applicant must submit a tenant protection plan. As the result of legislation passed by the City Council in 2018, owners who fail to post a copy of the tenant protection plan and provide a copy to tenants will be subject to a stop work order (Local Law 154); the penalty for violating a stop work order was increased in 2018 to $6,000 for the first violation and $12,000 for the second violation. The new DOB Service Notice applies also to plans approved before December 18, 2018. For a copy of the DOB Service Notice, visit https://on.nyc.gov/2sN8ake.
DHCR Fact Sheet #11
In addition, in the past six months, DHCR has twice amended Fact Sheet #11 relating to demolition. Initially, in July, 2018, DHCR amended the Fact Sheet to require owners of buildings with rent-stabilized apartments to send a letter to DHCR advising the State agency of the owner’s intention to file for construction permits. In December, 2018, DHCR amended the Fact Sheet again, indicating that the requirement to file with DHCR applied only to buildings with rent-stabilized (and not rent-controlled) apartments and, in that instance, where notification to DHCR was required by local law or DOB procedures. For a copy of the revised Fact Sheet #11, visit https://bit.ly/2MA71FN.
DHCR Form RC-50
Prior to demolishing or altering a building that contains rent-controlled tenants, owners are required to serve the rent-controlled tenants with DHCR Form RC-50 (“Report and Certification to Alter or Demolish Rent Controlled Occupied Housing Accommodations”). The four-page form requires the owner to provide detailed information including: when the owner acquired the building, the ownership entity, whether the owner or predecessor in interest previously applied for certificates of eviction, whether there are pending administrative proceedings, the estimated cost of the alteration or demolition, and whether the rent-controlled tenants have been given the required notice informing them of their rights. Form RC-50 includes a certification that the owner intends to file plans with the City. These RC-50-related requirements do not apply if there are no occupied rent-controlled apartments.
DHCR Form RA-54
If there are no rent controlled tenants, the owner can file with DOB and then, once the plans have been approved by the City, file Form RA-54 with DHCR. Once DHCR has accepted the RA-54, DHCR serves notice on the tenants and the tenants have an opportunity to respond. If there are rent controlled tenants the owner must file the RA-50 prior to filing the RA-54. For a copy of Form RA-54, please visit https://bit.ly/2TqBfgM.
HPD/DOB Certification of No Harassment Procedures
Last, owners are reminded that pursuant to Local Law 1 of 2018 (see page 11 of the December 2018 RSA Reporter) owners who file applications with DOB for alteration and demolition permits for buildings in specified areas of the City are now also required to obtain a Certification of No Harassment from HPD prior to any action by DOB on the application for work. In January, 2019, DOB issued an updated Service Notice setting forth this procedure.
The list of buildings in neighborhoods subject to what the City calls a “pilot program” is comprised of approximately 1,000 multiple dwellings. In addition to these buildings, other buildings are also subject to similar certification of no harassment procedures if they are SROs or if they are located in the Clinton, Garment Center, Hudson Yards and West Chelsea neighborhoods in Manhattan and the Greenpoint-Williamsburg neighborhoods in Brooklyn.
To get more information you can access DOB’s January Service Notice at the following link: https://on.nyc.gov/2HCUfr1, or HPD’s website at https://on.nyc.gov/2ytqam2.
Given the complexity of these numerous, overlapping requirements involving these government agencies, apartment building owners should proceed with the utmost care and consult with counsel and others experienced in this process.