§ 2-08 Coverage, Occupants Qualified for Protection and Issues of Status.
RCNY § 2-08
Registration as an IMD shall be required when a Building, structure or portion thereof meets the criteria for an IMD set forth in § 281 of Art. 7-C and these rules.
(a)Definitions. For the purposes of this section, the following definitions apply: (1) Building.
(i)As defined in § 12-10 of the Zoning Resolution, a Building is any structure which: (A) is permanently affixed to the land; (B) has one or more floors and a roof; and (C) is bounded by either open area or the lot lines of a zoning lot.
(ii)A Building may be a row of structures, and have one (1) or more structures on a single zoning lot.
(iii)In deciding whether a structure is a single Building, as distinguished from more than one (1) Building for purposes of IMD determination, the Loft Board shall employ the definition set forth above, and consider, among other things, the following factors: (A) whether the structure is under common ownership; (B) whether contiguous portions of the structure within the same zoning lot are separated by individual load-bearing walls, without openings for the full length of their contiguity, as distinguished from non-loadbearing partitions; (C) whether the structure has been operated as a single entity, having one (1) or more of the following: (a) a common boiler; (b) a common sprinkler system; (c) internal passageways; (d) common fire escapes; or (e) other indicia of operation as a single entity. (D) whether the Owner or Responsible Party or a predecessor has at any time represented in Applications or other official papers that the structure was a single Building; (E) whether a single certificate of occupancy has been requested or issued for the structure; and (F) the pattern of usage of the Building during the applicable qualifying window periods: (i) from April 1, 1980, to December 1, 1981, for Buildings seeking coverage under Art. 7-C pursuant to MDL § 281(1), (ii) from April 1, 1980 to May 1, 1987, for Buildings seeking coverage under Art. 7-C pursuant to MDL § 281(4), (iii) for twelve consecutive Months during the period commencing January 1, 2008 and ending December 31, 2009, for Buildings seeking coverage under Art. 7-C pursuant to MDL § 281(5), or (iv) for twelve consecutive Months during the period commencing January 1, 2015 and ending December 31, 2016, for Buildings seeking coverage under Art. 7-C pursuant to MDL § 281(6).
(2)Residential Unit.
(c)Long Island City IBZ, provided that the Residential Units meet the qualifying criteria set forth above and the Buildings are located in the following area of the Long Island City IBZ: (1) have frontage on either side of 47th Avenue, (2) be located north of 47th Avenue and south of Skillman Avenue, or (3) be located north of 44th Drive, south of Queens Plaza north, and west of 23rd Street; and (F) not be located in the same Building that contained, as of June 21, 2010, and continuing at the time of the submission of an Application for coverage by any party, a use in legal operation actively and currently pursued that is determined by the Loft Board to be inherently incompatible with residential use by creating an actual risk of harm that cannot be reasonably mitigated, as defined in 29 RCNY § 2-08(k).
(iv)In addition to the criteria set forth in subparagraph (i) of this paragraph, in order for a Residential Unit to qualify for coverage under Art. 7-C pursuant to MDL § 281(6), such residence or unit must have been occupied by a Family Living Independently for residential purposes during a period of twelve consecutive Months between January 1, 2015 through December 31, 2016, as further delineated in 29 RCNY § 2-08(c)(5) and (c)(6), regardless of whether the Building is geographically located in an area in which the Zoning Resolution permits residential use. In addition to the criteria set forth in clauses (A), (B), (C), and (E) of this subparagraph, in order for a Residential Unit to qualify as an IMD unit for purposes of coverage under Art. 7-C pursuant to MDL § 281(6), such residence or home must: (A) not be located in a cellar, defined in MDL § 4(37) as an enclosed space having more than one-half of its height below the curb level; except that where every part of the Building is set back more than twenty-five feet from a street line, the height must be measured from the adjoining grade elevations calculated from final grade elevations taken at intervals of ten feet around the exterior walls of the Building. A cellar shall not be counted as a story; (B) have a means of access from a street or public area, such as a public hallway, elevator or public stairway, and the unit must not require passage through another residential unit to obtain access; (C) contain at least four hundred (400) square feet in area; (D) not be located in an IBZ, as such term is defined in Chapter 6-D of Title 22 of the New York City Administrative Code, except for Buildings located in the: (a) Williamsburg/Greenpoint IBZ; (b) North Brooklyn IBZ (1) unless the Building is in a district zoned M3 as such district is described in the New York City Zoning Resolution in effect at the time the Application for registration as an IMD or for coverage of Residential Units is filed; and (2) if the application for registration as an IMD or for coverage of Residential Units which were occupied for residential purposes as the residence or home of any three or more families Living Independently pursuant to MDL § 281(6) is filed with the Loft Board on or before December 31, 2023, which is nine (9) months after the promulgation of all the rules necessary to implement the provisions of Chapter 41 of the Laws of 2019.
(b)Certificate of occupancy.
(1)Registration as an IMD shall not be required of any Building, structure or portion thereof for which a final residential certificate of occupancy was issued pursuant to MDL § 301 before: (i) June 21, 1982, for Buildings, structures, or portions thereof seeking coverage under Art. 7-C solely pursuant to MDL § 281(1); (ii) July 27, 1987, for Buildings, structures or portions thereof seeking coverage under Art. 7-C solely pursuant to MDL § 281(4); (iii) June 21, 2010, for Buildings, structures or portions thereof seeking coverage under Art. 7-C pursuant to MDL § 281(5); or (iv) June 25, 2019, for Buildings, structures or portions thereof seeking coverage under Art. 7-C pursuant to MDL § 281(6). Such units shall be exempt from Art. 7-C coverage unless the residential certificate of occupancy is revoked.
(3)Registration with the Loft Board shall also be required of any Building, structure or portion thereof which otherwise meets the criteria for an IMD set forth in MDL § 281(5) and these rules that contained at least three (3) units residentially occupied by Families Living Independently from one another for a period of twelve (12) consecutive Months between January 1, 2008 through December 31, 2009, regardless of whether residential use is permitted under the Zoning Resolution. However, if there is a determination by the Loft Board that there was a bona fide change to exclusively non-residential use in a unit during such qualifying twelve (12) consecutive Month window period, such unit shall not be counted for purposes of determining whether the Building qualifies for coverage as an IMD pursuant to MDL § 281(5). The Occupant of any unit which changed to a bona fide exclusively non-residential use must have been a party distinct and independent of the Owner, Landlord or Responsible Party of the Building for the presumption of IMD coverage to be rebutted. It is not required that the units that seek coverage under MDL § 281(5) occupy their respective units during the same twelve (12) consecutive Month period.
(4)Registration with the Loft Board shall also be required of any Building, structure or portion thereof located in that certain area of Manhattan bounded on the south by West 24th Street, on the north by West 27th Street, on the east by Tenth Avenue and on the west by Eleventh Avenue, which contain at least two (2) units residentially occupied by Families Living Independently from one another for a period of twelve (12) consecutive Months between January 1, 2008 through December 31, 2009, regardless of whether residential use is permitted under the Zoning Resolution. However, if there is a determination by the Loft Board that there was a bona fide change to exclusively non-residential use in a unit during such qualifying twelve (12) consecutive Month window period, such unit shall not be counted for purposes of determining whether the Building qualifies for coverage as an IMD pursuant to MDL § 281(5). The Occupant of any unit which changed to a bona fide exclusively non-residential use must have been a party distinct and independent of the Owner, Landlord or Responsible Party of the Building for the presumption of IMD coverage to be rebutted. It is not required that the units in the same Building seeking coverage under MDL § 281(5) be occupied residentially during the same consecutive (12) Month period.
(5)Registration with the Loft Board shall also be required of any Building, structure or portion thereof which otherwise meets the criteria for an IMD set forth in MDL § 281(6) and these rules that contained at least three (3) units residentially occupied by Families Living Independently from one another for a period of twelve (12) consecutive Months between January 1, 2015 through December 31, 2016, regardless of whether residential use is permitted under the Zoning Resolution. However, if there is a determination by the Loft Board that there was a bona fide change to exclusively non-residential use in a unit during such qualifying twelve (12) consecutive Month period, such unit shall not be counted for purposes of determining whether the Building qualifies for coverage as an IMD pursuant to MDL § 281(6). The Occupant of any unit which changed to a bona fide exclusively non-residential use must have been a party distinct and independent of the Owner or Responsible Party of the Building for the presumption of IMD coverage to be rebutted. It is not required that the units seeking coverage under MDL § 281(6) be occupied residentially during the same consecutive twelve (12) Month period.
(6)Registration with the Loft Board shall also be required of any Building, structure or portion thereof located in that certain area of Manhattan bounded on the south by West 24th Street, on the north by West 27th Street, on the east by Tenth Avenue and on the west by Eleventh Avenue, which contain at least two (2) units residentially occupied by Families Living Independently from one another for a period of twelve (12) consecutive Months between January 1, 2015 through December 31, 2016, regardless of whether residential use is permitted under the Zoning Resolution. However, if there is a determination by the Loft Board that there was a bona fide change to exclusively non-residential use in a unit during such qualifying twelve (12) consecutive Month period, such unit shall not be counted for purposes of determining whether the Building qualifies for coverage as an IMD pursuant to MDL § 281(6). The Occupant of any unit which changed to a bona fide exclusively non-residential use must have been a party distinct and independent of the Owner or Responsible Party of the Building for the presumption of IMD coverage to be rebutted. It is not required that the units in the same Building seeking coverage under MDL § 281(6) be occupied residentially during the same consecutive twelve (12) Month period.
(7)None of the following vacancies of any duration will be the basis for exemption from Art. 7-C coverage: (i) units residentially occupied on December 1, 1981, and on April 1, 1980 as set forth in 29 RCNY § 2-08(c)(1) above; or (ii) units residentially occupied on May 1, 1987, December 1, 1981, and April 1, 1980 as set forth in 29 RCNY § 2-08(c)(2) above; or (iii) units residentially occupied at any time before or following the qualifying twelve (12) consecutive Month window period between January 1, 2008 through December 31, 2009, as set forth in 29 RCNY § 2-08(c)(3) or (c)(4) above, nor a change or changes of residential Occupants in any such units during the intervening period(s) will be the basis for exemption from Article 7-C coverage; or (iv) units residentially occupied at any time before or following the qualifying twelve (12) consecutive Month window period between January 1, 2015, through December 31, 2016, as set forth in 29 RCNY §2-08(c)(5) or (c)(6) above, nor a change or changes of residential Occupants in any such units during the intervening period(s) will be the basis for exemption from Art. 7-C coverage.
(d)Calculation of Residential Units.
(e)Zoning regulations.
(v)For any Building, structure or portion thereof, which otherwise meets the criteria for an IMD set forth in MDL § 281(1) and these rules, but is located in an area designated by the Zoning Resolution as a Study Area, the timing of the compliance requirements of MDL § 284(1) shall commence upon rezoning of such Study Area to permit Residential Use as of Right. If the rezoning permits residential use only through Grandfathering procedures, the timing of the compliance requirements of MDL § 284(1) and the rules issued pursuant thereto shall commence upon the approval of the Grandfathering application of the unit which becomes the third eligible Residential Unit for purposes of calculation of units qualifying the Building as an IMD. For any registered Building in a Study Area, for which the City Planning Commission approved neither rezoning nor Grandfathering by December 31, 1983, IMD status for such Building expires and all of the units in such Building cease to be covered by Art. 7-C, unless there is a recommended extension of such deadline by the City Planning Commission. If any authority having jurisdiction disapproves rezoning for residential use or Grandfathering, or the extension of such deadline, IMD status for such Building expires and all the units in such Building cease to be covered by Art. 7-C. Notwithstanding the foregoing, any Building, structure or portion thereof which ceased to be covered under Art. 7-C as a result of the failure to rezone the Study Area, permit Grandfathering or to extend the deadlines as set forth in the foregoing paragraph shall be covered by Art. 7-C if it meets the criteria of MDL § 281(4), MDL § 281(5), or MDL § 281(6).
(vi)For any Building, structure or portion thereof that meets the criteria for an IMD set forth in MDL § 281(5) and these rules, the timing of the code-compliance deadlines are set forth in MDL § 284(1)(vi) and 29 RCNY § 2-01(a)(9), (10), (11) and (12).
(vii)For any Building, structure or portion thereof that meets the criteria for an IMD set forth in MDL § 281(6) and these rules, the timing of the code-compliance deadlines are set forth in MDL § 284(1)(vii) and 29 RCNY § 2-01(a)(13).
(viii)For any Building, structure or portion thereof registered pursuant to MDL § 281(5) or MDL § 281(6) for which there is a revocation of IMD status of one (1) or more units in the Building by the Executive Director as a result of a determination that such unit(s) did not meet the qualifying criteria set forth in 29 RCNY § 2-08(a)(2)(i)(A),(B),(C) and (E), and such revocation reduces the number of qualifying Residential Units below three (3) or two (2), with respect to an IMD Building located in the geographic area described in 29 RCNY § 2-08(c)(4) or (c)(6), the IMD status for the entire such Building shall expire and each of the units in the Building shall be deemed to be "non-covered units." As set forth below, Occupants of non-covered units are not entitled to the protections of Art. 7-C. Residential occupancy of a non-covered unit shall not be permitted in the Building until a final certificate of occupancy that designates the non-covered unit as residential is obtained.
(f)Municipally owned Buildings.
(g)Accreted and additional units.
(h)Non-covered Units in an IMD.
(j)The term IMD as used in MDL § 281(5) or 281(6) shall not include any Building in which an inherently incompatible use as described in subsection (k) of this section is in legal operation and being actively and currently pursued in any unit other than a Residential Unit of the Building. For Buildings in which coverage is claimed under MDL § 281(5), the term "actively and currently pursued" refers to commercial, manufacturing or industrial use being conducted in the Building on June 21, 2010 and continuing at the time of the submission of an Application for coverage by any party. For Buildings in which coverage is claimed under MDL § 281(6), the term "actively and currently pursued" refers to commercial, manufacturing or industrial use being conducted in the Building on June 25, 2019 and continuing at the time of the submission of an Application for coverage. A unit eligible for coverage pursuant to MDL § 281(5) or 281(6), which is located in a Building registered as an IMD under MDL §§ 281(1) or (4), shall not be excluded from Art. 7-C coverage on the basis that any prohibited activity in Use Group eighteen (18) existed in the Building.
(k)Uses in Use Groups Inherently Incompatible With Residential Use. Pursuant to MDL § 281(5) or 281(6), a use that falls within Use Group 18, as defined in Article III Chapter 2 and Article IV Chapter 2 of the Zoning Resolution in effect on June 21, 2010 and continuing at the time of the submission of an Application for coverage by any party, that is also set forth in the Appendix to these rules, is inherently incompatible with residential use in the same Building if it: (1) has or should have a New York State environmental rating of "A", or "B" for any process equipment requiring a New York City Department of Environmental Protection operating certificate; or (2) is or should be required under the Community Right-to-Know Law, at Chapter 7 of Title 24 of the Administrative Code of the City of New York, to file a Risk Management Plan for Extremely Hazardous Substances; or (3) is or should be classified as High-Hazard Group H occupancy as set forth in Section 307 of the New York City Building Code.
(l)Residential Unit. For the purposes of subsections (j) through (s), in addition to the definition of Residential Unit in 29 RCNY § 2-08(a)(2) above, a Residential Unit may contain a non-residential use that: (1) is clearly incidental to or secondary to the residential use of the Residential Unit; (2) is carried on within the Residential Unit, by one or more Occupants of such Residential Unit; (3) does not use more than forty-nine (49) percent of the total floor area of a dwelling unit for the non-residential purposes; and (4) has up to three (3) non-residential employees.
(m)Reserved.
(n)Reserved.
(o)Revocation of IMD registration. The Executive Director may, on written notice to the Owner and the Occupants, revoke the IMD registration at any time for failure to meet the requirements set forth in the provisions of MDL § 281(5) or 281(6), and this rule, where: (1) previously undisclosed facts, or misrepresentations or false statements as to material facts in the registration Application or submitted documents regarding the information which was the basis for the Loft Board issuance of an IMD registration number are discovered, or (2) the Loft Board issued an IMD registration number in error and conditions are such that the IMD registration number should not have been assigned. Such notice will inform the Owner of the reasons for the revocation and that the Owner has the right to present to the Executive Director or his or her representative within ten (10) Business Days of delivery of the notice by hand or fifteen (15) days of the posting of the notice by mail, information as to why the registration should not be revoked.
(p)Use after June 21, 2010 or June 25, 2019.
(q)Burden of proof for inherently incompatible use. For all Applications for coverage filed pursuant to 29 RCNY § 1-21, except for any unit eligible for coverage pursuant to MDL § 281(5) or 281(6) that is located in a Building registered as an IMD under MDL § 281(1) or (4), the party opposing coverage under Art. 7-C based upon the existence of an inherently incompatible use, must establish by a preponderance of the evidence the following: (1) one (1) or more commercial, manufacturing or industrial uses; (2) in legal operation in the non-residential units; (3) that are inherently incompatible with residential use as defined in subdivision (k) of 29 RCNY § 2-08; (4) that create an actual risk of harm; (5) that cannot be reasonably mitigated; (6) in the Building as of (i) June 21, 2010 for Buildings in which coverage is sought under MDL § 281(5); or (ii) June 25, 2019 for Buildings in which coverage is sought under MDL § 281(6); and (7) continuing at the time of the submission of an Application for coverage by any party.
(r)Site visits. The Executive Director may conduct, or designate a Loft Board staff member to conduct, a site visit to the Building for which coverage under Art. 7-C of the MDL is being sought. The Owner or Responsible Party must arrange for the Executive Director or the Loft Board's staff to have access to the non-residential spaces upon reasonable notice. The Executive Director, or the Loft Board's staff, may also conduct informal conferences regarding the Owner's or Responsible Party's registration Application. The Executive Director may request additional information from the Owner or Responsible Party, Tenants or government agencies about the non-residential uses in the Building on June 21, 2010 or June 25, 2019 and continuing at the time of the submission of an Application for coverage by any party.
(s)Occupant qualified for possession of Residential Unit and protection under Art. 7-C.
