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New Reforms Will Allow the Public to Challenge Department of Buildings Approvals with Greater Ease
The New York City Department of Buildings (DOB) has announced significant changes to the procedure for challenging DOB approvals. The reforms, which will become effective Monday, March 9, 2009, include posting diagrams of new buildings and enlargements online and giving the public 30 days to challenge DOB approvals. The new procedures are designed to increase transparency, community empowerment, zoning compliance and consistency.
According to a February 2, 2009 press release from the office of Mayor Michael R. Bloomberg, “New York City will become the first city in the nation to put diagrams of proposed new buildings or major enlargements online.” In the press release, Mayor Bloomberg noted that “[t]he reforms center on the public’s right to challenge any approved development if they think it violates local zoning regulations.” DOB Commissioner Robert D. LiMandri added that the new process would benefit developers by giving them “certainty that once the public has had an opportunity to comment and any compliance issues have been resolved, their project can move forward.”
New Forms for Developers
Starting March 9, 2009, applicants must submit a zoning diagram form, or ZD1, to DOB prior to approval for New Building and Alteration Enlargement applications. The ZD1 will need to include a site plan and axonometric diagram of the proposed development in order to demonstrate the project’s proposed zoning bulk, yard(s) and street plantings.
To obtain a determination from DOB on interpretations of the Building Code and Zoning Resolution (formerly known as “pre-considerations” or “re-considerations”), applicants will now use the Zoning Resolution Determination form (ZRD1) or the Construction Code Determination form (CCD1). In order to request an appointment to review a request, the applicable form must be signed and sealed by a professional and submitted to DOB.
Once DOB approves an application, it will place the ZD1 form with diagrams, and any related ZRD1 forms, online to provide the public with additional zoning information about the project.
Public Challenges to DOB Approvals
Once an application is approved by DOB, the public has 30 days to review and challenge DOB’s approval. Challenges by the public must be made by filing a “Zoning Challenge and Appeal Form” or “Construction Challenge and Appeal Form” with DOB. The challenge forms allow challengers to remain anonymous, and advise the challenger that an “official decision to the challenge will be made available no earlier than 60 days after the application’s approval date.”
After the initial 30 day period ends, the DOB Borough Commissioner will address every challenge received by conducting a full review of the challenged project’s plans and issuing decisions that will be posted online. If DOB agrees with a challenge, DOB will take enforcement action including issuing stop work orders, revoking permits, and requiring new designs.
If DOB does not agree with a challenge, the public has an additional 15 days to appeal DOB’s denial to the First Deputy Commissioner. Once the First Deputy Commissioner issues a determination, the decision may then be appealed to the Board of Standards and Appeals for a “final determination.”
Impact of Reforms
Some community organizations are likely to laud these reforms and the creation of an “official” challenge process. Developers, on the other hand, are likely to be concerned with the time and cost that will be added to the development process and to question whether the new procedures will truly provide their projects with more certainty. Both camps are likely to have many questions about the mechanics and timing of this new review and approval process, including its impact on the existing methods of challenging approvals, the vesting of rights, and other City review processes.
Questions regarding this advisory should be addressed to Zara F. Fernandes (212-238-8827, firstname.lastname@example.org), Christopher G. Rizzo (212-238-8677, email@example.com) or Macculloch M. Irving (212-238-8714, firstname.lastname@example.org).
 Press Release PR-055-09.
 A ZD1 is also required with any subsequent applications if the zoning diagram has been altered from the initial application; however, a ZD1 is not required for applications whose initial document was filed and reached the “Application Processed” status prior to March 9, 2009.
 According to the Mayor’s press release, once a permit is issued by DOB, builders will be required to post the permit at the job site within 3 days.
Carter Ledyard & Milburn LLP uses Client Advisories to inform clients and other interested parties of noteworthy issues, decisions and legislation which may affect them or their businesses. A Client Advisory does not constitute legal advice or an opinion. This document was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
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