Permits and occupancy: Is there a law that exempts 1-2 family?
Hello, kind brownstoner folks, We’re in the midst of filing for renovation permits with the DOB for a four-story 1890s townhouse we purchased in 2014 in Clinton Hill. We have an architect who has submitted plans as well as an expeditor; both are knowledgeable about the process. We’ve recently hit a bump I didn’t especially foresee. My two simple questions, repeated at the end, are these (more background below them): (1) Why would we have to consider our house a single family and therefore file Alt 1 if we’re making it a two family, if the HPD, DOB and DTF all have it listed as a two family already, and (2) What’s the deal with (what our attorney says is) a law on the books that says that the above isn’t even relevant for a one or two family dwelling? And how do we get DOB to acknowledge this? Relevant facts: The house has no C of O. The DOB profile lists the house as B3-2 FAMILY DWELLING The Department of Finance classification is the same (B3-2Family) HPD LISTS IT AS 2 Class A units and Zero Class B units The home was owned by the same family for about 40 years, their heirs sold it to us. It was built as a one family house as were its neighbors in 1890, at some point converted to 2 family (see above) and then had various uses. We don’t have any documentation of that conversion but see references to records above. Its last use was basically a very underused single family with a renovated kitchen on the garden level an old kitchen upstairs on the top floor. Our mortgage documents and the appraisal that led to them list it as a 2 family dwellling. Getting the loan as a two-family was not a problem. As part of our renovations, we are going to convert the garden (basement) floor into a separate apartment, the kitchen is already in it and make an owners’ triplex above. There is currently a second kitchen on the top floor (not usable), but we’re going to put a kitchen for us into the parlor floor. One more wrinkle: The previous owners attempted to get a Letter of No Objection, which was denied for lack of enough information provided. When we were just about done with our DOB filing for Alt 2, it apparently just came to the attention of the plan examiner that the “current use” was a single family (from the plans, maybe?) and that we did not have enough information to support its “continued use” as a two family; If we persist in this we may have to file for Alt 1 which we really dont want to do (it’s not a gut reno, we’re not changing the size etc). I was really under the impression that if there was no c of o the HPD, DoB and maybe TF would be enough, plus the appraisal report. We spoke to the attorney that handled the purchase, and according to him, there are laws in place that say that anything below a 3 family dwelling is not subject to the same stringent code requirements, (sprinklers etc) that we fear we would be required to conform to if we filed for Alt 1\. In other words, he’s saying it doesn’t matter whether it’s a one or two family because the code laws don’t apply to 1 and 2 family dwellings. He also added that in some cases the only way to get this to be acknowledged was to sue the DOB (he wasnt trying to drum up business as he’s not the kind of attorney who handles that by his own admission) I would love some insight please (it has taken us two years to deal with the permit process though some was not unexpected, don’t even ask about the LPC): (1) Why would we have to consider our house a single family and therefore file Alt 1 if we’re making it a two family, if the HPD, DOB and DTF all have it listed as a two family already, and (2) What’s the deal with the law on the books that says that isn’t even relevant for a one or two family dwelling? And how do we get DOB to acknowledge this? Endless thanks for any light you can shed on this!
cityrat
in Building Code 9 years and 1 month ago
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22 replies
bk123 | 9 years and 1 month ago
Everything you present at DOB is assumed to be illegal until proven otherwise with hard data. As far as exemptions, yes, the MDL does not apply to a 1 or 2 family but all other codes do. for simplicity, this should be filed under the 68 code. There is a clause in the zoning law about continuous use without a 2 year lapse. There is some uncertainty about the past use of this property so the plan examiner is assuming the worst case which is a change of use from 1-2. An Alt 1 is not a big a deal except you may need to
withdrawl your present application and start over(that would be bad). see if you can revise it and stay with the same plan examiner. not sure that’s possible. good luck and welcome to DOB hell.
tvnvda | 9 years and 1 month ago
Does your house still have separate gas or electric meters? If it still has those meters, they typically constitute proof of multiple occupancy. BTW: 1 and 2 family dwellings are in the same building class (as opposed to multiple dwellings = 3 or more families). Sprinklers are required when converting from one building class to a different one. Sprinkler requirements will not be triggered by converting from one to two family OR the other way around. Since all records point to this being a two family, you are simply being “punished” for being honest about how the house is configured and/or used today.
williaminbklyn | 9 years and 1 month ago
Hi,
As a former expediter, what I would suggest is that you should file a ‘No-work Alt1’. Basically you renovate under the alt2 application, sign it off, and then file for the ‘No-work Alt1’, where you change the amount of dwelling units. You can have your Architect self certify it, so it shouldn’t be a big deal. Being that it has no work, they wouldn’t require you to put in a sprinkler.
williaminbklyn | 9 years and 1 month ago
Hi,
As a former expediter, what I would suggest is that you should file a ‘No-work Alt1’. Basically you renovate under the alt2 application, sign it off, and then file for the ‘No-work Alt1’, where you change the amount of dwelling units. You can have your Architect self certify it, so it shouldn’t be a big deal. Being that it has no work, they wouldn’t require you to put in a sprinkler.
lamb | 9 years and 1 month ago
I tend to agree that attempting to process your own LNO might offer your only way to avoid the alt-1 process, though scott is clearly in a better position to opine on that… however, as another commenter mentioned, filing an alt-1 and getting your CofO may be a better long term solution. in my personal experience, taking what might look like a simpler route at the DOB can backfire. don’t try to be clever with an agency that is NOT. without going into the excruciating details, I once chose the most expedient route to begin work on a townhouse renovation (all of it filed)… it did allow us to get work underway faster, but ultimately ended up making the back end sign-off process far more complicated, expensive and time consuming. my sincere sympathies and best of luck!
peaceout | 9 years and 1 month ago
this is enough to want to buy a mcmansion in jersey.
carolinet | 9 years and 1 month ago
Step back a moment and think about what your project entails. Forget about what the house used to be and what previous work was done there. From my understanding of your summary, you currently have a 1-family house (physically). You would like to create a separate apartment in this house, making it into a 2-family. This would be a change to a certificate of occupancy for the house. (I know you don’t have one.) But you are physically creating a different occupancy arrangement that will need to be recorded on a certificate of occupancy. It is better to get the correct CofO for your house than try to side-step and avoid this. Think long term. If you want to sell your property, the CofO will be very important to have.
-An architect in Brooklyn.
resident2 | 9 years and 1 month ago
It seems to me that you need to re-submit a new application with all the required information required along with as much additional and plus any more that you can find in old City records (Water & Sewer records etc.) for a new Letter of no Objection. But keep in mind that the woman that is or was a few months ago in charge of the Letter of No Objection desk is not the smartest, she did not seem to even know or care what the purpose was for the piece of precious paper that she was dispensing! P.S In my opinion Scott Schnall has lost it! I gave up on him many years ago.
housepoor | 9 years and 1 month ago
I have a kind-of related question. I saw a 3 unit house that has no C of O on record (at least not in the DOB online records). The iCards say there was an alteration in 1979, although it is illegible about what it was. I know C of Os pre-date the 1979 alteration (I see one on my current house from 1973). But I also know that just because I don’t see it online, doesn’t mean it isn’t there. Is it reasonable to expect a C of O to have been issued subsequent to the 1979 work (which I believe took it from a SRO to a multifamily)? The broker, who seemed sketchy, told me the building pre-dated C of Os so it isn’t available.
slopefarm | 9 years and 1 month ago
Re: Scott Schnall — he’s about the best person you could hire to try to resolve this. Re: Your lawyer. Your lawyer is most likely a RE transactional lawyer, maybe a generalist. If you feel the need to consult with a lawyer on this, get someone who specializes in land use, construction, City Ad. Code etc.
sprucenik | 9 years and 1 month ago
Regarding the sprinklers, don’t trust your lawyer. We were going to do something requiring an Alt 1 (changing our stairs/egresses in a 4-story 2 fam) but ultimately did not because all 3 of the expeditors I spoke with said that DOB would insist on sprinklers.
carmenf | 9 years and 1 month ago
@ps158 my husband and I have often said someone should do an expose on the DOB, however most of us make unsympathetic “victims”- folks who have enough money to buy property in NYC are not exactly the folks most people feel bad for. We waited 10 months for alt-1 approval (including fighting over sprinklers in a single family home) and were similarly frustrated living in a house where the kitchen flooded every time it rained and the plaster was peeling off the walls. We couldn’t afford rent+mortgage for an undisclosed amount of time and only moved out about 3 days before demo started. The DOB machine is truly awful. We have a great expeditor now (we fired our first) but I believe he only works with a few construction firms so I can’t recommend him here.
MaconStreetMan | 9 years and 1 month ago
2008 code, I believe. I think an Alt-1 would require sprinkling – but Scott would know much more. I’m surprised he hasn’t been able to be more helpful. I wouldn’t trust anything a lawyer says about DOB.
cityrat | 9 years and 1 month ago
Wow @ps158 that really sucks, but it sounds like you came out ok on the other side of it hopefully with a house you love. You’re right about all of it of course, and I’ve heard all the nightmare stories (if it makes *you* feel any better, we closed IN 2014, and it’s taken this long just to get squared away WITH THE LPC. though we are able to live in the house (with lots of roommates) as we’re certainly not in a position to be cavalier about the time and expense. And the reason this upsets me is I really don’t want to have to file Alt 1, due to the expense of the things you mention. We foresaw tons of hurdles when we bought the house but thought that one would at least not be one (we have other issues with the DOB that at least involve the actual construction). Thank you so much for your helpful response, also. I’m wondering, is this a new thing where they suddenly are shutting down everyone with no C of O regardless? Anyone know why?
cityrat | 9 years and 1 month ago
Thanks so much for the responses. Yes, Letter of No Objection, not C of non-H. It’s confusing. That is a relevant item though because as I may have mentioned, apparently this whole problem came up when the DOB, came across the note that the Letter of No Objection had been denied the prev. owners (on grounds of not enough info provided, apparently they provided very little info.). @MaconStreetMan Re Scott Schnall, yes, he is already our expediter for the DOB filing. So you see why I’m so frustrated… When you say “new code” how new is this new code, 2008 or more recent? @MDR Yep, It’s listed with HPD (i just checked again) as 3 stories, 2 units class A no class B. So you see why I’m so frustrated… Has anyone heard of this new law our attorney is referring to?
ps158 | 9 years and 1 month ago
MDR – based on my personal experience, DOB only recognizes an LNO or CO that they have on file. On their BIS website, when you search a property address, the classification listed there is based on DOF records. DOB does not care what DOF says. Yes, check i-card for your property. I don’t think that will allow you to circumvent the LNO process, but it will be the shortcut to an LNO. There unfortunately was no i-card on file for our property. I have a feeling though that most properties do not have i-cards on file. Perhaps I’m wrong about this…
ps158 | 9 years and 1 month ago
Cityrat, you’re not going to like what I have to say…We were in a similar position – our house was listed as a 2-family with DOF, HPD, bank loaned us money based on 2-family status, even our deed says 2-family. We filed as Alt-2 since we weren’t changing the use, and DOB came back and said “Nope! You don’t have a CO on file, so your property automatically defaults to 1-family status!” We went through hell and high water to get the LNO, which is what DOB issues in lieu of a CO, and our renovations were put on hold for a good solid month while we researched, waited, met and argued with the plan examiner, then waited some more, then argued again with him. We finally got it. But it was very scary for us – we were worried we would need to sell the house because we would not be able to afford it as a 1-family (we rely on the rental income in order to offset our monthly mortgage payments.) We would not have been able to file an Alt-1 had the LNO not been issued, because we would not have been able to afford to continue renting a separate apartment while our house sat uninhabited by us and a tenant waiting for the Alt-1 application to go through. Additionally, I think there would have been a sprinkler requirement (though I’m not positive, so don’t panic just yet about that.) But if so – it would have required bringing in an additional water line into the house – a hefty cost in addition to installing the sprinklers throughout the house. The scariest thing was the not knowing what the outcome was going to be. And, there is simply no guarantee. It doesn’t matter how common sense it is that your house is NOT a 1-family. (What crook of a city agency is DOB to classify a 4-story house as a 1-family house! Seriously, that should be criminal – and it is at the least unethical – given the lack of affordable housing in this city!) I really feel for you, and I’m sorry for what you are going through and what you will have to go through. If finances aren’t so much of a concern like it was for us, make plans now to file the Alt-1 if you don’t get the LNO. But I really hope you will get it. No offense to your lawyer, but take what he says about codes with a grain of salt. Trust me – DOB can’t even interpret their own codes, so why should your lawyer know. That said, I think he could be on to something – a lawsuit against them. But that won’t solve your problem now or in the near future – it will be just more time and money on your part. And that’s what compounds the incompetency and criminality of the DOB – nobody has the time or energy or money to stand up to them. They will wear you down to the bone, and you’ll let them abuse you because you need to put a roof over your head, and once they’re done with you, you’ll move on, exhausted. And they’ll move on to their next victim. Thus the cycle repeats unbroken. Can you tell I still get angry thinking about our experience? I think the NY Times should do an investigation of the DOB. I’m very sorry you’re going through this.
MDR | 9 years and 1 month ago
Usually the DOB accepts their own classification, what are they thinking? Did you check to see if there are any HPD I-cards for your house? Usually DOB will accept those as proof of a legal prior use. https://hpdonline.hpdnyc.org/HPDonline/provide_address.aspx search with your house address, then look for “icard images” on the menu on the left
carmenf | 9 years and 1 month ago
It is my understanding that sprinklers are required for two family homes if they are over 3 stories.