New York's Cooperative and Condominium Community

Habitat Magazine October 2020 free digital issue

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Certificate of Occupancy

Our cooperative on the Upper East Side of Manhattan plans to renovate two residential units on the ground floor of the building by extending the space in the back and converting it to doctors’ offices. Would this require amending the existing Certificate of Occupancy? The units have been vacant for several months.

The New York City Department of Buildings (DOB) requires building owners to amend the existing Certificate of Occupancy (C of O) under any one of three

conditions:
Change of use. A new C of O is needed when a residential property/unit converts fully or partially to a commercial use or vice-versa. Converting a basement or cellar into a lunchroom or community center is another. If more than 75 people are expected to gather at one time, a place of assembly permit is also required.

Change of egress. A new C of O is needed when one or more entrances or exits are closed off and/or new ones are created. An example would be when a side door to a building is sealed off and a new opening is built in back. New York City building code requires at least two means of egress.

Change of occupancy. A new C of O is needed when the occupancy of an area in the building increases. A case of this would be when existing apartments are divided to create more units. Conversely, a typical apartment combination would not require an amended C of O because such work does not increase the number of units, or the type of use, or means of egress of that space.
Because the units on the ground floor of your building were built for residential use (it doesn’t matter how long they’ve been vacant) and are now planned for medical offices, your board will have to obtain an amended C of O for converting to a mixed-use (residential/commercial) building. The first step is to have your engineer or architect conduct a zoning analysis of your building to determine whether commercial or community facility use is allowable in that zone.

As part of this feasibility study, the architect/engineer will determine the building’s floor area ratio (FAR). Each zone has its own FAR, and changes to your building cannot exceed that number unless approved by the governing city agencies, most commonly the Bureau of Standards and Appeals and the City Planning Commission. Changing the use of an existing space but not the area would not increase the FAR, although the board’s plan to extend the space out past the back of the building may be limited, depending on the FAR in that zone.

The next step is for the architect to submit the plans for the proposed alterations to the DOB (and the Landmarks Preservation Commission, if the building is in a designated historic district) as part of the work permit process. The DOB will review the plans, looking for what it calls “life safety” issues, such as fire protection, proper lighting and ventilation, means of egress, handicap accessibility, and so forth. If any part of the completed work differs significantly from the original scope, amended “as-built” plans should be submitted to the DOB.

As the work is completed, the board will have to hire licensed engineers to conduct controlled inspections on various required items. These include tests for structural stability and ventilation, tests of sprinklers, and fire-stopping for wall penetrations. Those department divisions of the DOB involved in the work (construction, plumbing, electrical, elevators) must sign off on the completed project. Usually, an expediter, hired by the contractor or the building’s engineer/architect, contacts the DOB to arrange for the necessary inspections.

Even after the completed alteration work passes, the department may not issue an amended C of O if the building has outstanding DOB or Environmental Control Board violations. Examples of building violations that may affect an amended C of O include missing annual boiler or elevator inspections, performing construction work without a sidewalk shed or work permit, failing to install smoke and/or carbon monoxide detectors in apartments, and miscellaneous outstanding local law violations. In addition, if the building has any “open applications” on file – i.e., previous work that was not formally signed off by the project engineer or architect – that will put the C of O process on hold.

So, for example, if smoke detectors are not installed in every apartment or the building never completed an exterior repair project for which it had filed a DOB work permit, then the building will not be issued an amended C of O until these are cleared up. Your engineer or architect can research which outstanding violations and open applications are filed against you and take care of them.

It’s not uncommon for buildings to have a slew of outstanding violations and open applications, turning C of O approval into a drawn-out affair. By the time the violations are removed, the unfinished projects done, and the amended C of O granted, six months to a year can go by. In the meantime, the newly constructed space cannot be legally used for its new purpose.
To assist the building industry and reduce the steps and time required to obtain a new or amended C of O, the DOB initiated a pilot program in April 2004 that allows the process to move ahead even when the building has certain outstanding violations or open applications. This fast-track initiative currently applies only to Manhattan, and the violations or open applications cannot be hazardous or affect the building’s life safety systems, such as structural or mechanical alterations, sprinklers, egress, fire alarms, or sidewalks.

But an open application for an apartment combination project that involved removing a non-load-bearing wall, for example, or a violation for failing to post a permit for a sidewalk shed taken down long ago, would not be cause enough to deny the building a new or amended C of O, provided all other requirements were satisfied. The DOB weighs each open application request on a case-by-case basis, and fines or penalties for violations waived strictly for the C of O application would still have to be paid and cleared with the department.

For construction or renovation work done on multiple floors of a building, a temporary C of O can be obtained for each floor as the work is completed. Temporary C of Os are issued for a maximum of 90 days, and a permanent C of O would eventually have to be obtained for the building as a whole.
Remember, even if an individual building resident undertakes alteration work that will require an amended C of O – such as turning his or her apartment into an office – the C of O is nonetheless issued to the building corporation for the entire building and not to the individual resident. (The resident, of course, should get approval from the board before beginning any such project.)

The fee for obtaining a new or amended C of O is currently $100, which does not include the filing fee for the DOB work permit (approximately one percent of the construction cost) and other associated filing fees.
By taking the proper steps to make sure that all the DOB requirements are properly addressed, you can avoid delays in obtaining a C of O and put the renovated space to its new use as soon as possible.

Stephen Varone, AIA, and Peter Varsalona, PE, are principals at Rand Engineering & Architecture, which has been providing integrated engineering and architectural services to the co-op and condo community since 1987.

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