Local Law 11: beware of cycle 6.
But beware the upcoming Cycle 6, which opens on February 21, 2005, and closes on February 21, 2007. Embedded in Local Law 11 is a provision that will, for some owners, be as dramatic as any change since the law's inception.
The language of the provision, at first reading, seems innocuous enough. (A brief aside, before the provision itself. Local Law 11 requires that the inspecting professional classify each facade condition observed as either "Safe," "Unsafe," or "Safe with a Repair and Maintenance Program"--commonly known by the appealing acronym SWARMP. Precise definitions of these terms are contained within the law).
Now the provision: "27-129 (d) (2) Safe condition with a repair and maintenance program. An architect or engineer shall not file a report of a safe condition with a repair and maintenance program for the same building for two consecutive filing periods unless the second such report is accompanied by his or her certification attesting to the correction of all conditions identified in the earlier report as requiring repair."
To underscore the significance of 27-129 (d) (2), and clarify its meaning, the Department of Buildings (DOB) issued a "plain language version" in a June, 2004 letter to owners: "....If you filed SWARMP in the fifth cycle, you must complete repairs for those items identified as SWARMP conditions in Cycle #5."
"Conditions that are not corrected must be filed as "Unsafe" in the sixth cycle."
The law grants the inspecting professional preparing the Cycle 6 report absolutely no latitude regarding this Unsafe filing. Even if an unrepaired Cycle 5 SWARMP appears perfectly stable on the day of his Cycle 6 inspection, the law does not allow the professional to extend its SWARMP designation into Cycle 6. If a condition listed as SWARMP in the Cycle 5 report has not been addressed prior to Cycle 6 filing, the professional has no choice but to classify it as Unsafe.
Unfortunately, the law makes no distinction between what might be termed an "administrative" Unsafe (a minor crack on a rear facade that hasn't widened in ten years, noted as SWARMP in Cycle 5 but not yet repaired) and a newly discovered "barricade -the-streets-call-out-the-National-Guard" Unsafe, (a parapet wall of a 30-story building adjacent to a schoolyard, that has shifted 6" outward in the last 48 hours).
The shifted parapet wall, without question, would require immediate repair. And it wouldn't be a bad idea to fix the ten year old crack, either. But in the real world, where funds are limited, deferring repair of an off-street crack that has been stable for ten years might be a rational choice for an owner. Now, unless you want your building classified Unsafe (and rest assured you don't) you no longer have that choice.
The foregoing underscores the advantage of having the Critical Examination performed by a professional firm with expertise in facade inspection and repair. Sometimes, defects are not as serious as they look, and can be corrected without substantial expense. A slight bulge in a wall, for example, doesn't necessarily mean imminent collapse. It might have been there thirty years--part of the original building construction. An experienced professional won't saddle you with a SWARMP classification for a condition that might, in reality, be safe.
Don't Be Classified Unsafe
The downside to including an Unsafe conditions within your Cycle 6 Critical Examination report is considerable. An Unsafe classification invokes violations from the DOB and possibly the Environmental Control Board, entailing court appearances and possible fines. Furthermore, the actual repair of the condition will be done with the DOB looking over your shoulder.
If your building's Cycle 5 Critical Examination enumerates SWARMP conditions that are still uncorrected, your first move, should be to have those conditions corrected. You need to have this done in advance of February 21, 2007, the Cycle 6 closing date.
(If your building was classified "Safe" in the Cycle 5 report, your obligation for Cycle 6 is simply to have a critical examination performed, and a report filed with the DOB prior to the Cycle 6 closing date). In certain simple cases SWARMP conditions may be corrected by a contractor, without involvement of a registered architect or professional engineer. In most cases, remedial work will require a DOB issued Work Permit and therefore, design and filing by a engineer or architect. DOB Directive TPPN 1/99 (available on the DOB website) enumerates permitting requirements for various categories of facade repair work.
Begin as soon as possible. Deal with SWARMPS cited in the Cycle 5 report, and while you're at it, any new conditions that have developed since then. You still have two construction seasons (when air temperature is reliably above freezing) to accomplish this, since the February 2007 deadline falls in the dead of winter.
An additional consideration--because this wrinkle is "new" for Cycle 6, some owners and managers may be slower to react. The result will be a high volume of repair work undertaken to ward the end of the cycle, straining the resources of professional firms and contractors, and increasing costs.
Like taxes, Local Law 11 is an inescapable fact of life for building owners in New York City.
There are few worthwhile tax strategies that can be implemented on April 14th.
Just as intelligent tax planning is a perennial activity, effective Local Law 11 planning begins long before the filing deadline.
PAUL MILLMAN, P.E., R.A., FOUNDING PARTNER, SUPERSTRUCTURES ENGINEERS + ARCHITECTS.
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|Publication:||Real Estate Weekly|
|Date:||Mar 9, 2005|
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