How to Comply with DOB's Stricter Façade Inspection Requirements

Most owners know that NYC’s façade inspection safety program (FISP), formerly known as Local Law 11, requires periodic inspections of a building’s exterior façades. These inspection requirements were initiated in response to fatal injuries from falling masonry. Most recently, in December 2019, a pedestrian was fatally struck by falling building debris. In response, the DOB doubled its façade inspection staff and conducted a sweep of 1,331 façades previously deemed unsafe or cited for repairs, resulting in 220 violations.

The accident also prompted the agency to strengthen its violation inspection protocols immediately after the pedestrian’s death. According to the DOB, when a building is found to have an unsafe façade, the owner will not only face potential enforcement actions, but will also receive additional proactive re-inspections from the DOB. The agency will conduct follow-up inspections within 60 days of every Class 1 façade violation. And if the owner fails to implement required public safety measures as ordered in the initial façade violation, city contractors will be brought in to perform the work at the owner’s expense.

In addition, DOB façade inspectors will conduct further follow-up field inspections 90 days after the issuance of the initial Class 1 façade violation to ensure that the public protection measures are properly maintained and that repair work has begun to remediate any unsafe conditions. After that, the DOB will conduct additional field inspections every 90 days to ensure further compliance with its orders. Owners who are found to be disregarding DOB orders during any of these follow-up inspections face additional enforcement actions.

On top of these strengthened violation inspection protocols, the DOB has stated that all buildings in New York City greater than six stories in height face the possibility of proactive DOB safety compliance reviews. The previous standard called for proactive reviews only for buildings that had previously received a violation. Now, 25 percent of the buildings subject to the FISP program will be selected at random to receive safety reviews, increasing the DOB’s ability to proactively identify unsafe conditions on building façades and push owners to take action.

Lastly, on Jan. 21, 2020, the DOB adopted a new amended rule regarding façade inspections, which went into effect on Feb. 20, 2020. The rule made substantial changes to inspection and reporting requirements for the FISP, which requires owners and managers of buildings higher than six stories to have exterior walls and appurtenances inspected every five years and file technical façade reports via DOB NOW: Safety.

Here’s what you need to know about the changes for the upcoming inspection cycle (Cycle 9).

Make Sure Inspector Meets New Requirements

In past cycles, the qualified exterior wall inspectors (QEWIs) were New York State-licensed civil or structural engineers or New York State-registered architects with one or more years of relevant experience. Now, a QEWI must have seven years of relevant experience with façades over six stories.

Also, with the new rule, QEWIs can no longer delegate the inspection to tradesmen and technicians but only to architects and engineers, or to individuals with a bachelor’s degree in architecture or engineering and three years of FISP experience, or to those without a degree who have at least five years of FISP experience. Only these people can perform inspection tasks, and, furthermore, only under the direct supervision of a QEWI retained by the owner.

Post Conditions Certificate in Lobby

Owners are now required to post a conditions certificate issued by the DOB in a frame with a transparent cover in the lobby or vestibule of the building within 30 days of issuance. The certificate must indicate the most recent condition of the building’s exterior walls and appurtenances.

Understand SWARMP and Unsafe Condition Categories

SWARMP stands for “Safe with a Repair and Maintenance Program.” DOB clarified that façade conditions labeled as SWARMP require repairs or maintenance during the next five years, but not less than one year, in order to prevent deterioration into an unsafe condition during that five-year period. In other words, façade conditions requiring repair or maintenance within one year must be considered unsafe.

Include New Information in Reports

The QEWI is required to file a written report with the DOB describing the results of the critical examination. This examination determines whether the façade and exterior wall elements such as fire escapes and exterior fixtures are either safe, unsafe, or SWARMP and whether, in the judgment of the QEWI, they require remedial work.

Now, the critical examination report must specify not only the age and type of construction, but also must specify “all materials present in the exterior wall.” The new rule also requires a detailed description of any distress, settlements, repairs, or revisions to exterior enclosures since the previous report, including, but not limited to, settlement, splitting or fracturing, displacement, bulging, cracking of any exterior wall elements, loosening of metal anchors and supports, water entry, movement of lintel or shelf angles, or other defects or changes. And all significant conditions must now be documented with photographs that are mapped to key plans, elevations, and locator drawings.

In addition, the recommended time frame for which unsafe and SWARMP conditions must be addressed is now an exact date by which work must be completed. It can no longer be a general month and year. For unsafe conditions, time frames of more than five years are not acceptable.

Dated photo documentation of the QEWI and/or his or her employees performing physical close-up inspections must be included in reports. Other new photography requirements include:

• Elevation photos;
• Detailed condition photos of all SWARMP and unsafe conditions, labeled with status designation and mapped on the building façade;
• Typical condition photos for buildings classified as safe; and
• Cavity wall probe photos for each probe opening including photos documenting the interior of the probe showing the cross section of the wall, the measurement of the spacing of the wall ties, a close-up of the wall tie type and installation, and the condition of the substrate.

Follow New Public Protection Requirements

Not only must QEWIs identify the location of unsafe conditions, upon discovery of any unsafe condition, the QEWI must immediately notify the DOB and the owner of the building. The QEWI must identify the location of any unsafe condition; advise the owner on the appropriate protective measures to be taken; and include the recommended type and location of public protection in the notification to the DOB.

Follow Requirements for Correcting Unsafe Conditions

The new rule says all unsafe conditions must be corrected within 90 days from the submission of the critical examination report. This timeline extends the prior 30-day period for correcting unsafe conditions.

Owners may have longer to correct unsafe condition, if, due to the scope of repairs, an unsafe condition can’t be corrected in that time. The QEWI may recommend an extended time frame. However, time frames of more than five years are not allowed. If owners can’t meet the deadline, they must notify the DOB and provide supporting documents from the QEWI in a subsequent report justifying the delay. Also, corrections made in the previous cycle will now need to be reported as unsafe if they need further or repeated repair at the time of the Cycle 9 inspection.

Follow New Close-up Inspection Requirements

Close-up inspections are physical inspections from scaffolding or other observation platform. Before the new rule, at least one close-up inspection was required for a “representative sample” of the exterior wall. Now, the rule specifies that close-up inspections must be performed at least every 60 feet along the length of every exterior wall fronting a public right-of-way. As a result, not just street fronts but also sidewalks, easements, plazas, and other public places are included. The new close-up inspection requirements will probably mean more time and expense to meet the minimum number of physical examinations.

The QEWI determines which locations along those walls are “most deleterious” and performs the examinations there. The rules state clearly that the use of drones and high-resolution photography may not take the place of a close-up inspection.

Conduct Mandatory Cavity Wall Probes

The QEWI must check whether ties are present and in good condition at cavity wall buildings in every odd cycle. This requirement was introduced due to recent failures of cavity walls due to missing or deficient ties.

A cavity wall is a type of wall that has a hollow center. The wall can be described as consisting of two “skins” separated by a hollow space (cavity). The skins typically are masonry, such as brick or cinder block, and the exterior skin relies on a grid of metal ties to the backup wall for lateral stability.

At a minimum, a cavity wall probe must be completed along each required close-up inspection interval, with the QEWI ultimately determining the number, size, and location of the probes to best identify the condition and spacing of wall ties. Opening holes to check cavity wall ties every 60 feet isn’t a small undertaking. Sidewalk protection must be provided and relevant permits obtained.

Exceptions to this requirement include: (a) buildings that underwent cavity wall rehabilitation, specifically addressing wall ties, within the past 10 years; (b) new buildings less than 10 years old for which evidence of wall tie installation is provided; and (c) buildings for which an alternative method of evaluating wall ties is proposed by the QEWI and accepted by the DOB.

Pay Increased Civil Penalty for Noncompliance

Owners who don’t file the required acceptable inspection report will be liable for a civil penalty of $5,000 per year immediately after the end of the applicable filing window. This is a five-fold increase over the previous penalty.

Late filing penalties also are increased. In addition to the penalty for failure to file, an owner who submits a late filing will be liable for a civil penalty of $1,000 per month, beginning on the day following the filing deadline of the assigned filing window period and ending on the filing date of an acceptable initial report. This is a four-fold increase.

Owners who fail to correct unsafe conditions are liable for a $1,000-per-month base penalty, plus a monthly fine for each linear foot of sidewalk shed, starting at $10 per linear foot of shed per month after the first year and increasing each year thereafter. With this penalty, the DOB intends to curb owners who keep sidewalk sheds up for years and postpone addressing unsafe conditions as a solution to façade hazards.

Lastly, failing to correct a SWARMP condition from the previous cycle, so it must be filed as unsafe this cycle, now carries a penalty of $2,000.

Takeaways

• The NYC Façade Inspection Safety Program applies to buildings taller than six stories.
• Penalties are now four and five times what they were in the last cycle.
• Ensure FISP inspector meets the new QEWI requirements.
• Address remaining unsafe and SWARMP conditions from Cycle 8.
• Determine the Cycle 9 filing deadline based on building’s block number.
• Budget additional time and expense for close-up inspections and possible cavity wall probes.

Cycle 9 Filing Windows

In 2010, beginning with Cycle 7, the DOB implemented staggered filing windows. The last digit of a building’s block number determines if the property falls into sub-cycle A, B, or C. For Cycle 9, the report deadlines are as follows:

Subcycle              Last Digit of Block Number                   Filing Period

A                             4, 5, 6, 9                                               Feb. 21, 2020 to Feb. 21, 2022

B                             0, 7, 8                                                   Feb. 21, 2021 to Feb. 21, 2023

C                             1, 2, 3                                                   Feb. 21, 2022 to Feb. 21, 2024