Update on Local Law 11/98.

As 1999 comes to a close and everyone excitedly looks forward to the Millennium and the Year 2000, it is an appropriate time to look back on the year 1999 and to reflect on what has been the first full year of application of Local Law 11/98 - New York City's Facade Inspection Law.

At a glance, I can report that the law has been extremely successful in many respects, but has also had a few bumps along the way.

The year 1999 was itself a transition year. Local Law 10/80 was ushered out, only to be replaced by the new (and generally improved!) version, Local Law 11/98. There have been some major changes regarding facade inspections brought about by the new law, as follows:

* All facades (not just street facades) must be inspected.

* The initial Local Law 11/98 report for any building which did not have all of its facades previously inspected must be filed by March 1, 2000 (now only a few months away).

* All buildings greater than six stories in height are covered by Local Law 11/98. This includes all buildings which are six stories plus a basement and buildings which are six stories plus a cellar where the cellar is more than 50 percent above grade along at least one elevation. This has significantly increased the universe of buildings which must comply with the facade inspection laws.

* At least one scaffold/platform physical inspection must be performed along a path from grade to the top of an exterior wall on a street front.

* Buildings must be classified as either safe, safe with a repair and maintenance program, or unsafe. Consultants can no longer classify observed conditions as precautionary in nature and can no longer carry over such conditions from one cycle to the next.

* The consultant and building owner must both sign a Local Law 11 report before it can be filed.

* A building can no longer have an ongoing maintenance program as a substitution for having a Local Law 11 report filed.

* The building owner and the Borough Commissioner in the Department of Building must immediately be notified, in writing, of the presence of any unsafe conditions observed during the course of the inspection.

* Finally, certain repair work required for compliance with Local Law 11 (such as parapet wall replacement, terra cotta restoration, etc.) can only be performed upon the filing of plans for the work with the Department of Buildings/Landmarks Preservation Commission and the issuance of a work permit to the contractor.

While the above may seem like radical changes in the law, in practical terms, only a few of these terms have had significant impact. Some have had a positive impact; a few may have had a somewhat negative result; and still others have had some of both.

On the plus side, its been quite apparent that the requirements of having all walls inspected and at least one scaffold drop inspection performed at each building have resulted in most buildings being inspected in a far more thorough manner. Rear/courtyard wall - never previously inspected under Local Law 10/80 - are now being inspected and repaired as necessary. Many such walls have had numerous unsafe conditions alleviated during this process. Similarly, the mandatory scaffold inspections have enabled diligent and conscientious engineers to inspect portions of the facade from an up close vantage point and in a physical manner. These type of inspections have also revealed the presence of defects at many buildings that would not have been readily detectable by means of the previously standardized visual/binocular inspection methodology. This has enabled the prudent property owner to expeditiously act to address previously unrecognized threats to the public.

Further benefits have been derived from both elimination of the precautionary condition category and the required permit process. With respect to the elimination of the designation of observed conditions as precautionary in nature, coupled with the further requirement that such conditions be repaired prior to the next Local Law 11 filing, the result will be safer buildings throughout the city. In the past there was generally no specific time-frame for the repair of precautionary conditions. Unfortunately, many such conditions were left to deteriorate further and to ultimately become unsafe. At present, the time-frames imposed for repair work should significantly diminish the opportunity for this to occur.

Lastly, the requirement that certain structural/intricate exterior repair work be performed only upon issuance of a valid work permit to the contractor has provided for better quality control of projects of this nature. Previously, inexperienced/underinsured contractors were being called upon to develop scopes of work for Local Law 11 repairs, and to then actually perform the work without the involvement of a design professional. The present code precludes this possibility and requires that the repair work be specified and designed by a licensed professional engineer or registered architect, and that the work be performed by an adequately insured contractor in strict accordance with the applicable plans and specifications under a valid permit. Those plans must be filed with and approved by the Department of Buildings in order for the permit to be obtained.

Progress, however, does not always travel along a smooth path. While we have seen a myriad of important benefits evolve during the first Year of Local Law 11/98, we have also suffered through some problems and growing pains. In particular, as noted above, the increase in the number of conditions detected during the course of Local Law 11 inspections, primarily as a result of the rear/courtyard facade visual inspections and the scaffold inspections, has created a shortage of qualified contractors and workers. As a result of the pressure to handle the increased workloads, particularly since the work is considered to be urgent in most instances, many inexperienced workers have been asked to accomplish tasks they are not yet fully capable of performing. Consequently, concern has been raised relative to whether repairs recently performed will hold up over the course of time, or whether further repairs may ultimately be needed to address recently performed work. This situation could potentially have considerable e conomic impact on property owners or managing agents.

The proliferation of scaffolding throughout the city in order to meet the requirement that at least one scaffold drop be performed at each building having a Local Law 11 inspection may be related to scaffold accidents in the city. Several such occurrences have been highly publicized in the newspapers, as well as on television and radio. Scaffold inspections are a complicated procedure and must be performed in strict accordance with applicable codes and regulations, and in an extremely careful manner. While rigging license/scaffold operation regulations are currently being reviewed by public authorities, it is extremely important to note that erecting/operating hanging scaffolding equipment should only be done by licensed riggers whose license is current and valid, and who maintain the appropriate levels of insurance. It should also be noted that various portions of the Labor Law can impose strict liability on an unsuspecting property owner or co-op for scaffolding accidents/injuries. Safety in this realm sho uld be everyone's top priority.

In closing, let me state that as the year 2000 comes in, we should all be cognizant that March 1, 2000 is the deadline established for the filing of Local Law 11 reports for buildings which previously had at least one facade not inspected under Local Law 10/80. Everyone in the industry should be certain to arrange for the inspection and filing to be achieved prior to this deadline.

The bottom line here is a most favorable one. Local Law 11 has made New York safer place for all of us. Public officials and professionals in the field are working hard, and working together, to improve the city and modify the laws to conform to the needs of its citizens and visitors.

Kondylis is also concerned about die the concept of "design by committee."

"You can reach consensus but it can become a mediocre design," he observed.

Setbacks for Community Facilities

Height and setback rules will apply to non-residential development in low-density residential areas. These rules will be of concern to the many expanding schools, colleges and hospitals now planning new facilities.

Paul D. Selver, a partner with Battle Fowler, said "After a preliminary reading, we have to look more carefully at its impact on community facilities in the moderate density zones."

There are projects "well along" in the planning phase that might be affected. "There is some concern for projects in the preliminary phase, which could be developed with a greater degree of flexibility if the height limit were not so low," Selver said.

Read It on the Web

Changes are being made to more than 500 pages of zoning text, and since the actual text was still at the printers last week, its effects were a matter of great uncertainty in the legal and design communities.

The text may or may not join the Executive Summary on the web, said Rose, who was looking into the possibility. The summary can be found on the City Planning web site at www.ci.nyc.ny.us/html/dcp/html/bulksum.html.

Troubling Items

The Real Estate Board of New York expects to have a committee meeting this week to discuss the text and its implications, said Steven Spinola, REBNY's president.

"They agree there are issues that need to be clarified," Spinola said of City Planning. "There are also items that are troubling."

Spinola said he is getting calls from REBNY's professional members who are concerned about how the actual text would affect future development.

Limit on Mechanical Deductions

The new text will limit the amount of mechanical spaces allowed to be deducted from the FAR in commercial buildings. In the highest density district of R9, R10 and equivalents, for example, the height limits have been designed to allow a provision for roughly 10 percent of the space for mechanicals.

The exact text will be closely watched by architects, as the Executive summary complains mechanical equipment has taken up as much as 25 percent of a building, and has been used to "subvert die bulk provisions of die zoning."

Kondylis said it is very difficult to fit the required mechanics into a building, but that 10 percent was a number he "could live with" for the residential buildings that he designs.

New commercial buildings, however, often must install large back-up generation equipment and other such amenities that are required by today's computer-reliant businesses. The loss of the rentable FAR will affect pro formas that are already reliant on pre-leased commercial buildings getting more than $60 a foot in rent.

Several such projects are in preliminary design stages and could be adversely affected if and when the proposed zoning resolution is adopted.

Foundations will be Grandfathered

The notice for the environmental review was published last week, Rose said. He expects it to begin the land use review process in January, be adopted by City Planning in early spring, and be adopted in the late spring by the full City Council.

"Buildings that have their foundations substantially completed will be grandfathered," he said.

That's one reason, for instance, that the full city block owned by Vornado, known as the Alexander's site - bounded by 58th and 59th Streets, Lexington and Third Avenue has been dug out with the intent to pour foundations prior to the completion of the building design.

City Planning did not include the site in the Midtown District, as had been urged by REBNY. Under the new zoning resolution, it would be able to only top out at either 495 feet or 360 feet, depending on the amount of residential space.

Under another proposed rule, any tower would have to occupy at least 33 percent of its zoning lot. "We were hoping it would be 30 percent," said Spinola, because there is concern a building could not even reach 360 feet if the mass was spread out over 33 percent of the area.

FAR Counts for Designation

One improvement, Selver said, is that a tower's designation would not be based on the number of stories of commercial or residential, as it is currently, but by the percentage of floor area.

"That's an improvement over where we are today," he said.

The proposal, however, would designate a building as "residential" when it has more than 25 percent of its floor area residential, and could affect the height of some mixed projects in the pipeline with condos planned for the tops.

At that point, it has to be built as a tower on a base. According to Tom Wargo, deputy director of the office of zoning and urban design, its base must then be between 60 feet and 85 feet tall, and wrap around the street frontages. "That in itself prevents the building from being pulled back," to create a plaza, he said.

Kondylis is worried such a base is too big to fill up with retail, medical - which is not allowed above the second floor - or a health club. That means the base will have to contain many dark apartments facing a courtyard.

"We have to strike the right balance between what makes better urban design and what is it that creates better homes," Kondylis said. In older buildings, apartments were larger, and the courtyard windows were usually those associated with secondary rooms, such as the dining room or rear bedrooms. Today's base will have small units, and many residents will be without the additional windows facing the street.

"That's not responsible government," said Kondylis. "We have to worry about the quality of life within the buildings. The renters and buyers are our constituents."

In a move towards simplification, the number of dwelling units would be calculated based on floor area rather than by the existing system that varies by room counts and numbers of dwelling units, depending on the zoning district.

Height Counts from Base Plane

Another change would affect the calculation of the height of a building on a slope. It would be measured from the base building plane, and no longer from the curb. The "base plane" is where the front building wall meets the ground, and the measurement would be arrived at by averaging the elevations.

In some cases, this will be beneficial to developers; in other cases, the ability to have additional footage that does not count towards the FAR will be lost.

"The base plane provides flexibility for those on upward sloping sites," Wargo said. "If your building is on the downward sloping site, and you use curb level [calculations], then you don't have to calculate it as part of the bulk. With the base plane, that would count as floor area."

For two years, City Planning officials have reviewed city buildings that received floor area bonuses in return for creating public spaces. In a report expected to be released next year, they now agree with critics who "have maintained for some time that certain types of public spaces that generated floor area bonuses do not produce meaningful public benefits."

The new zoning text will no longer allow certain residential plaza bonuses, except by special permit in C4 to C6 zones. Bonuses for commercial] and community facility plazas would be retained, however, "because of the more public nature of the buildings," the report states.

If an owner wants to change an open space where there is bonusable area, "it will be problematic," said Lindenbaum.