New permits challenge rule is strongly challenged

By Albert Amateau

Representatives of elected officials and neighborhood groups had plenty to say last Friday — almost all of it negative — at the Department of Buildings hearing on proposed new rules for public review and challenges to applications for building permits.

Originally, the hearing, set for 3 p.m. Fri., March 6, was to be followed with implementation of the new rules on Mon., March 9, the very next business day.

However, in response to an outcry deploring the city’s apparent lack of respect for public input, the Department of Buildings issued a statement the day before the hearing that the rules would not be enacted until mid-April.

But not everyone in the packed hearing room at 280 Broadway on Friday knew about the deferred implementation, and even those who knew remained outraged. Indeed, the threat by opponents to take the issue to court was a recurring theme at the hearing.

“The process is extremely shameful,” said Councilmember Tony Avella of Queens, a declared mayoral candidate who delivered his testimony in person.

State Senator Daniel Squadron said in a statement, “I still worry that the initial rush to approve this policy and the lack of opportunity for public comment are indicative of the central flaws in the policy itself. It takes a certain amount of chutzpah to have such obviously insufficient public comment on a proposal that would impose an insufficient process for public comment.”

The aspect of the new rules that provoked the most objections was the proposal to limit public challenges to building permits to 30 days after a developer’s plans are approved by the Department of Buildings. Anyone who finds objections after the 30-day period would have another 15 days to file an appeal with the Board of Standards and Appeals.

A feature that found favor at the Friday hearing was the requirement that developers file online plan schematics — indicating the zoning envelope of the building on the project site — for new buildings and for subsequent major changes.

Nevertheless, the 30-day challenge period was seen as a disaster. Councilmember Alan Gerson’s statement said that by not accepting challenges after 30 days, D.O.B. “does not to want to know about possible errors in the approval process, errors which as we know occur far too frequently. … Such mistakes must be corrected, not swept under the rug.”

Councilmember Rosie Mendez, who appeared in person, was in favor of the proposal requiring applicants to post plans online, but criticized “the way in which these rules curtail the public’s right to comment on plans which may not comply with zoning.”

Mendez said that her staff has frequently found instances of buildings that do not to comply with zoning.

“In most of these cases, the initial observations were not made within 30 days of approval of the permit,” Mendez said. “And under the strict provision of these proposed rules, we would not have been able to raise our objections.”

She also noted that the challenge clock starts at approval, not when a permit is posted at the work site.

“Most community members do not learn of new buildings or major alterations until there are permits posted at the work site,” the East Village councilmember said. “After construction is observed, a constituent calls our office and we investigate, often calling volunteer experts. All that takes time — 30 days is certainly not sufficient.”

Andrew Berman, executive director of the Greenwich Village Society for Historic Preservation, also questioned whether imposing a deadline on legitimate challenges to D.O.B permit decisions is legal. He said it could result in an evasion of the department’s obligation to revoke a permit even if issued in error.

“The only recourse then would be to file a B.S.A. appeal, an expensive, time-consuming and onerous process which is not a realistic option for most members of the public,” Berman said.

Assemblymember Deborah Glick said in a statement that she was concerned “that the community’s right to file grievances against inappropriate development must not be hindered.” Glick concluded by saying, “In view of the incredible amount of building that has occurred, some of it clearly in violation if zoning regulation and safety procedures, it would behoove the Department of Buildings to extend the comment period.”

Manhattan Borough President Scott Stringer noted that the Department of Buildings has not proposed any means of alerting interested parties when newly approved plans go online at the department Web site to begin the comment period.

“Instead, the department expects the public to regularly check the Web site,” Stringer said in his prepared statement.

Stringer also raised the legal question of whether the department may be abdicating its responsibilities for enforcing the zoning resolution if challenges are not raised in the first 30 days after approval of the building plans.

Community Board 4 (Chelsea/Clinton) called for a six-month test period of the new rules, and for an initial challenge period of 45 rather than 30 days. The board also wants the department to notify affected community boards by e-mail of the beginning of the challenge period.

Monte Schapiro, speaking for the Tenants Association of 515 E. Fifth St., said the 30-day challenge period imposes “limitations on a citizen’s constitutionally protected rights.”

Schapiro cited the proposed rules’ “Statement of Basis and Purpose”— that development is often delayed by public challenges to projects, raising developers’ costs.

The increase in the number of public challenges, Schapiro said, is due to the professional certification program — commonly known as “self-certification” — because plans are certified by architects and engineers hired by the developer, “which are then rubber-stamped with only cursory review.”

Schapiro noted that there is no requirement either now or under the proposed new rules for developers to “pull” — or obtain — permits after the department approves an application.

“An applicant could merely wait for the 30-day challenge deadline to expire before bothering to obtain and post the work permit on the site,” Schapiro said.

The rules also call for all challenges to be made on forms specified by the department. Schapiro said a legitimate fear is that the department could reject challenges based purely on technicalities, for example, a challenge made on the wrong form or on a form not filled out correctly.