Recent Amendments to the NYC Building Code to Impact Access License Agreements at the Deepest Levels and Beyond


December 2022

Effective November 7, 2022, the NYC Building Code (“BC”) now requires applicants for new construction projects to file with the Department of Buildings additional documents including valuable, detailed information about the project’s below-grade environment. Much consideration is to be given to the project’s likely impact on neighboring properties, with the focus on foundation and “earth” support. An additional new requirement involving supported scaffolding is also expected to be relevant to many neighboring property owners. These new filing obligations will likely add a further layer to already-intricate – and often strained – access-license-agreement negotiations that have become increasingly more prevalent in the city.

Previously, there were minimal filing requirements for a new project’s implications to an adjacent property. Historically, the BC required applications for permits for work like full demolition, foundation/earthwork and chimney modifications to include proof of “notice” to adjoining owners that there will be forthcoming construction. (See e.g. BC 105.5, 105.6 and BC 3304.3.2.) No further documents concerning the neighbor were required to be filed, although, if the project included the need to access the adjacent property, a project owner would be obligated to have available on site an access license agreement demonstrating the neighbor’s consent to any temporary intrusions. Beyond that, the Code had not delineated specific pre-construction actions that applicants must take in dealing with their neighbors – despite subjecting these project owners to strict liability per BC 3309.4 should any problematic vibrations or other forces cause damage to the adjacent property.

As result, for several decades myriad developers (and property owners performing mere façade or similar renovations) have been wrangling with neighbors over the production of project documents not publicly available, but directly pertinent to, the adjacent property. Examples include the project’s architectural drawings (to reflect, most importantly, the structure’s height and proximity to the adjacent property), “SOE” (support of excavation) drawings, scaffold and shed drawings and the site safety plan. In fact, the struggles over access to these documents, including any updated versions, have often resulted in more attorneys’ fees than those incurred from simply negotiating the agreement. (See e.g. Park Residence Condos, LLC v. 348 13th St., LLC, 189 A.D.3d 1249 (2d Dep’t 2020) and underlying referee’s report awarding $83,482.04 in attorneys’ fees at a juncture where, following years of document requests, there still was no agreement in place and the developer still had not advised whether underpinning would be performed.)

With the recent amendments, revisions to the Code’s Chapter 18, “Soils and Foundations” should obviate many of these battles about the details of newly-filed projects. Now, first, for new structures, horizontal enlargements and certain vertical enlargements or alterations (except, with limited exceptions, 1- and 2-famly homes), the project applicant must file with the DOB a geotechnical report. (BC 1803. 2 and 1803.6) The geotechnical report must contain specific, detailed information, such as the foundation system shown on the filed structural drawings, “soil stiffness parameters for design of the foundations”, “design lateral earth pressures on foundation walls and other retaining walls”, as well as recommendations for the evaluation of adjacent properties potentially impacted by the proposed construction. (BC 1803.6.1)

“Out of the gate”, then, the burden will be on the project applicant to account for – publicly – the existence of neighboring properties, acknowledging a potential impact while addressing the current below-grade conditions at issue. This will create immediate transparency, thereby eliminating the need for neighbors to compel disclosure of documents.

Second, where the planned work may disturb, displace or otherwise affect the lateral or vertical support of a building, then, at the time of foundation plan approval and prior to permitting and construction, an engineer must file with the DOB a comprehensive evaluation report assessing the condition of that existing adjacent building and the subsurface conditions of the construction site and adjacent property. (BC 1817.3) The report must identify acceptable method(s) of support, including underpinning or alternate methods of support, for the building. (Id.) The report must also contain an assessment based on a review of the geotechnical report already prepared, and also visual observations and calculations. (BC 1817.3.1) Further, that assessment must incorporate details such as the vertical and horizontal load paths of the building as they relate to the location of the proposed support, calculations of those vertical and lateral loads at the foundations to be supported, and conspicuous structural defects, like “bowing, significant cracking, structural degradation or unusual slenderness”, and “with photographs and mapping if possible”. (Id.)

These requirements for preliminary evaluations will likely require project applicants to request access to the adjacent properties much earlier in their design-planning. The requirements may prompt requests of the neighbors to perform physical evaluations, such as probe openings and test pits. This approach would be in marked contrast to the typical pre-construction access-request to simply survey the neighboring property to document its existing conditions. Following the survey, typically the project applicant’s engineer generates a photographic report with minimal text, which is provided to the neighbor and becomes a reference in the event of stress on the adjacent building. With the Code amendments, now the project applicant must file a report, with more than just photographs and tag-lines, but very specific information – again creating greater transparency for the neighbor.

And requisite filings are not limited to just impacted neighboring properties with buildings near the lot lines, but also “undeveloped” adjacent properties (e.g., empty lots, court yards, front yards, or rear yards). (BC 1817.2) For these “undeveloped” adjacent properties, the applicant must now include within the construction documents certain details such as the adjacent property’s existing grade, plans, cross-sections, and elevations, the proposed method of support, sequence of construction, details and criteria for monitoring and thresholds for movements. As previously these details were not automatically included in filed design drawings, neighbors have either lacked access to the additional information, and/or squabbled in requesting that these details be added. Again, the Code amendment is likely to alter that dynamic.

And finally, the Code now requires the applicant’s design professional to certify the adequacy of the base structures supporting the scaffolding. (BC 3314.3.4.) This will arise when, as is common for both new construction and façade maintenance/repair projects, a project applicant wants to erect scaffolding on a neighbor’s roof or terrace. The applicant will now have to verify that the neighboring structure can support the loads from the scaffolding, or provide recommendations to modify the structure to support the loads. For either, the applicant’s design professional will likely need additional access to neighboring properties to perform the necessary evaluation, and may also need to make probe openings – both of which would entail early access requests and concomitant negotiation.

In sum, these new Code requirements which formulate a methodical approach to accounting for the below-grade support of neighboring properties and base support for scaffolding are poised to reshape the landscape of access license agreement negotiations. Hopefully, for both parties’ sakes, their attorneys’ fees will accrue as a result of actual legal work versus quarreling over the production of project information.

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