Enclosed Balconies Will Not Require a Permit

Thousands of New York City co-op and condo residents can breathe a little easier today. The Department of Buildings (DOB) has – finally – formalized regulations for enclosed balconies and terraces. Instead of requiring that all enclosures receive permits, the new regulations require only that the structures be certified as safe during regular inspections under the Facade Safety & Inspection Program (FISP), also known as Local Law 11.
Every five years, the exteriors of buildings over six stories tall must be inspected by a Qualified Exterior Wall Inspector (QEWI), a professional engineer or licensed architect who is authorized by the DOB. The inspector must then file a report with the city, declaring the building safe, safe with a repair and maintenance program, or unsafe.
The new regulations state: “The QEWI’s report on FISP compliance is limited to safety, condition and structural stability of the balcony enclosure.” The regs continue: “Any structurally unstable enclosure shall require the building owner to immediately notify the Department and commence repairs or other means to make the enclosure safe.”
The new regulations were preceded by months of uncertainty, as the DOB floated the idea of requiring all enclosure to receive permits. The idea was triggered by the fact that enclosures increase available living space in buildings, in possible violation of maximum Floor Area Ratio standards set out in the building code. Since thousands of the enclosures were built without permits years ago, many by prior owners of the apartments, current owners and their co-op and condo boards were fearful that a costly nightmare was in the making. Many feared they would be forced to remove the enclosures.
In an interview in the May issue of Habitat, DOB Commissioner Rick Chandler admitted that the proposal to require permits had put the department in a bureaucratic and political bind. “We’re trying to evaluate how we might do this,” Chandler said. “We’re in a little bit of a challenged space, because the design of these buildings was not intended to have those balconies enclosed, and we have to consider how much zoning floor area was used. Part of our quandary is the fact that these enclosures have added bulk to the building. We’re trying to do what we do with everything, and that is to facilitate safe, compliant development. Safety is first.”
In the end, the DOB decided safety is first – and last. When the word came down, many boards and their professionals exhaled with relief.
Attorney Rachael Ratner, a partner at Schwartz Sladkus Reich Greenberg Atlas, says the prospect of forced compliance with FAR guidelines was a source of considerable anxiety for boards. “This was enormously stressful on a variety of fronts,” she says. “Who pays for the removal? And what happens if there’s enough FAR left for one person to keep his enclosure but not enough for everybody? How do you decide who gets to benefit?”  
“This [new regulation] is what everyone’s been waiting for,” says Gene Ferrara, president of JMA Consultants, who works with many boards on Local Law 11 compliance. “I called for a clarification from DOB, and they told me if you can prove structural stability of a greenhouse or balcony, then basically it’s safe. You no longer have to have a permit. This brings things back to reality. The Bible has finally come.”
Adds Stephen A. Varone, president of RAND Engineering & Architecture, “The DOB, as they should, wants to focus on safety. This just says, ‘Worry about safety.’”