Most New York City property owners and managers know that New York City's Facade Inspection Safety Program (FISP), formerly known as Local Law 11/98, requires an inspection of a building's exterior facades. The myriad details of the program, however, are often a source of confusion, especially those regarding filing status and follow-up repairs. Below are some Frequently Asked Questions on the topic:
In 1979, Barnard student Grace Gold was fatally injured by a piece of masonry that fell from the seventh floor of a Manhattan building. Her tragic death led to the passage of Local Law 10/80, an amendment of New York City’s administrative code, requiring cyclical inspections of facades taller than six stories. Over the years, further amendments were made to the code, most notably with the passage of Local Law 11/98, and institution of the Facade Inspection Safety Program in 2013.
What does a FISP inspection entail?
The inspection covers the envelope and appurtenances of all building facades taller than six stories, including parapets; balconies; railings; fire escapes; and balcony and greenhouse enclosures. Hands-on facade inspections, which can be conducted by industrial rope access, motorized scaffolds, and boom lifts, are required along street and public-right-of-way facing facades.
The other facades are typically inspected using high-powered binoculars. The inspector documents the condition of the walls with notes and photographs; the written inspection report filed with the New York City Department of Buildings must include photographs.
What are the new 9th Cycle FISP requirements?
In February 2020, the Amended Rule for the 9th Cycle of the Facade Inspection Safety Program, issued by the New York City Department of Buildings, came into effect. Major changes include:
- Hands-on inspections are required every 60 feet along facades facing streets and public access ways.
- Investigative probes are required along every 60-foot interval of cavity wall facades every other cycle (i.e. Cycle 9, Cycle 11), to check for the presence and condition of wall ties.
- Owners must post and maintain a facades conditions certificate in the lobby, much like an elevator certificate, to alert building occupants of the status of the exterior wall(s).
The Amended Rule affects not just the 9th Cycle, but also 8th Cycle Amended and Subsequent reports, which still may filed.
Depending on the length of a building’s street/public-facing facades, the cost of conducting the inspection will likely significantly increase because numerous additional drops are now required. In addition, if the building is of cavity wall construction, the required investigative probes will significantly add to the cost of the inspection process.
Who files the FISP reports?
Facade inspections must be conducted, witnessed, or supervised by what the New York City Department of Buildings (DOB) calls a “Qualified Exterior Wall Inspector” (QEWI), who must be either a New York State Registered Architect (RA) or New York State licensed Professional Engineer (PE) with at least seven years of experience. Anyone involved in the inspection process working under a QEWI's direct supervision must either have three years of relevant experience with a bachelor's degree in architecture or engineering, or five years if lacking the degree.
As of 2016, the DOB is no longer accepting “hard copies” of FISP reports. All FISP reports must be electronically submitted through the DOB NOW online portal.
To access DOB NOW, property owners and managers must register with the DOB’s eFiling system. FISP Reports cannot be filed if the building owner has not registered, but once the owner is registered, the actual filing process can be completed by a registered building manager.
What are the filing classifications?
Buildings are filed as Safe, Safe With a Repair and Maintenance Program (SWARMP), or Unsafe. A Safe building needs no further action. A SWARMP building must be repaired in the time frame established by the QEWI in the report. Unsafe buildings must be repaired within 90 days, although owners can request extensions from the DOB as long as adequate safety measures are in place to protect the public.
What are examples of unsafe exterior conditions?
Any item that the QEWI believes could possibly fall from a building within the next year must be deemed an Unsafe condition. Examples include loose bricks, mortar, or concrete; shifted parapet walls or stonework; and loose items (such as flower pots) on fire escapes or windowsills.
What happens when a building is filed as Unsafe?
Any Unsafe conditions observed by a QEWI must be immediately reported to the DOB via a Notification of Unsafe Conditions—known as a FISP3 form. Submission of a FISP3 triggers a violation, and a DOB representative often inspects the Unsafe conditions within 24 hours of notification.
As soon as an Unsafe condition is identified, the owner must install a sidewalk shed to protect the public where the condition occurs along a street facade and/or adequately block access along facades not facing a street.
Once a building has filed an Unsafe Report, the owner or manager must either complete the required repairs within 30 days, or where 30 days is not a sufficient amount of time to complete the work (as is most often the case), submit to the DOB an extension request.
The DOB typically grants a 90-day extension, as long as adequate safety measures are in place and an appropriate repair timetable is established. Additional extensions can then be requested and granted every 90 days as needed, until the work is completed. As long as extensions are approved and maintained during the repair program, the DOB will not assess any fines.
Included in each time extension request is a letter from the QEWI stating the scope of work, timetable for repairs, and confirmation that the proper safety measures (e.g., sidewalk shed) are in place.
After a contractor has been hired and the Unsafe conditions have been corrected, the engineer/architect administering the repair program (typically the QEWI that filed the Initial Unsafe Report) will file an Amended Report with the DOB upgrading the building status to SWAMRP or Safe. It should be noted that the DOB strongly advises owners with Unsafe buildings to seek to achieve a Safe status. Amended Reports that seek to raise a building’s status from Unsafe to SWARMP are closely scrutinized by the DOB, and can be rejected if the DOB in their sole discretion determine that conditions identified as SWARMP in the Amended Report are more accurately described as Unsafe.
How long after the repairs must the building be re-inspected?
The QEWI must inspect the repair of Unsafe conditions within two weeks after work is complete. This timeframe is usually not an issue when the QEWI is actively observing the repair program in progress.
What are examples of SWARMP conditions?
SWARMP conditions are conditions deemed by the QEWI to be Safe at the time of inspection, but at risk of developing into Unsafe conditions within five years. Typical examples include slightly cracked or spalled masonry, deteriorated mortar joints, deflected window lintels, and damaged coatings.
When must SWARMP conditions be repaired by?
The QEWI must list a specific repair deadline (minimum one year after filing) for each individual SWARMP item.
If any SWARMP item is not corrected by the established deadline, the DOB can at its discretion downgrade the building’s status to Unsafe and issue fines.
Outstanding SWARMP items cannot be carried over from one inspection cycle to the next. If any SWARMP item is not repaired by the time the next cycle’s report is filed, the building is automatically downgraded to Unsafe, regardless of the actual degree of physical danger posed by the cited condition.
When is the deadline for conducting the facade inspections?
Buildings have overlapping two-year windows for filing, and are grouped according to the last digit of their block number:
For the 8th Cycle of inspections:
- Block numbers ending in 4, 5, 6, or 9:
Reports must be filed between February 21, 2015 and February 21, 2017.
- Block numbers ending in 0, 7, or 8:
Reports must be filed between February 21, 2016 and February 21, 2018.
- Block numbers ending in 1, 2, or 3:
Reports must be filed between February 21, 2017 and February 21, 2019.
For the 9th Cycle of inspections:
- Block numbers ending in 4, 5, 6, or 9:
Reports must be filed between February 21, 2020 and February 21, 2022.
- Block numbers ending in 0, 7, or 8:
Reports must be filed between February 21, 2021 and February 21, 2023.
- Block numbers ending in 1, 2, or 3:
Reports must be filed between February 21, 2022 and February 21, 2024.
How do properties with more than one building file?
For properties with two or more buildings taller than six stories occupying different block numbers, the owner can file either of two ways:
- The buildings can be filed separately based on the last digit of their block numbers.
- The group of buildings can be filed together under the filing window for any one of the buildings. The DOB must be notified of this intent at least 180 days before the end of the filing window.
Note: Buildings that filed together for a previous cycle must continue to file under the same window in subsequent cycles.
When do new buildings have to file?
A newly constructed building is governed by FISP reporting requirements once five years have passed since the initial Temporary Certificate of Occupancy (TCO) was issued. An owner must comply with the first filing deadline for that property that occurs after the five-year TCO milestone has been reached (or the Final CO in the rare cases where a TCO was never issued).
For example, if a building with a block number ending in 7 was issued its initial TCO on May 15, 2017, the Owner would be required to file the first facade inspection report no later than the 9th Cycle deadline for that property of February 21, 2023. (See filing window chart above.)
If, however, that same building received its initial TCO on May 15, 2018, the owner would not have to file for the 9th Cycle because the filing deadline (February 21, 2023) will pass before the initial TCO is five years old (May 15, 2023). In this case, the owner will not have to file until the 10th Cycle deadline, projected to be February 21, 2028.
How long after the FISP inspection does the report have to be filed?
Facade inspection reports must be filed no later than 60 days after the QEWI conducts the final inspection, and no later than one year after the hands-on inspection. Building owners need to promptly approve, sign, and return reports to the QEWI for timely filing with the DOB to avoid the need for re-inspection.
If the Certificate of Occupancy lists a building height as six stories plus cellar does that mean a FISP inspection is not required?
Not necessarily. The height description on a building's Certificate of Occupancy is not what determines whether an inspection is needed. The actual physical building height is what counts. Many buildings, particularly in Queens and Brooklyn, have a Certificate of Occupancy that incorrectly lists the building’s height as six stories plus a cellar even though the building is actually six stories plus a basement or even six stories plus a full above-ground lobby level.
The distinction between cellar and basement is important. A cellar does not count as a story because more than half of its wall height is below ground level. A basement, on the other hand, does count as a story because more than half of its wall height is above ground. So a building with six stories plus a basement is considered 6½ stories high, which means a facade inspection report needs to be filed, regardless of what the Certificate of Occupancy says.
Can the DOB reject a report because window-mounted air conditioners are not properly installed? Are there any guidelines on what constitutes a properly secured unit?
The DOB can and does consider improperly secured window air conditioner units an Unsafe condition. This judgment is independent of whether the QEWI deemed any window air conditioner units a potential hazard.
Items considered Unsafe usually involve loose supports such as blocks or bricks wedged between the air conditioner unit and the windowsill, or an air conditioner unit that appears unstable. Although the DOB does not specify regulations or design criteria for mounting window air conditioners, it does provide a list of Air Conditioner Installation Tips.
It is difficult for the QEWI performing the facade inspection to determine the safety of window-mounted air conditioners throughout the building, short of checking every single unit from inside the apartments.
Complete verification, however, is unfeasible in large buildings with numerous units. Also, the locations of installed units can regularly change. For this reason, the DOB now essentially regards window-mounted air conditioner units as temporary installations somewhat separate from the FISP scope and verifies their status during the DOB review triggered by filing the inspection report.
It is recommended that building owners and managers establish installation standards and procedures and ensure all residents comply. For example, residents should be required to have window-mounted air conditioners installed with secure support brackets by a qualified person (such as a contractor or properly trained superintendent, technician, etc.), and to provide written verification from the installer to insure the safety of the unit. When signing the FISP report, the owner will confirm that all air conditioner installations meet or exceed the building standard.
Must balcony railings also be inspected?
Railings and their connections anywhere on a building — whether at balconies, terraces, roofs, etc.— are required to be evaluated for structural soundness as a part of the Facade Inspection Safety Program.
Balcony and greenhouse enclosures must also be inspected for structural stability and cited to be stable and secure to achieve a Safe or SWARMP filing status.
What’s the difference between a Subsequent Report and an Amended Report?
A Subsequent Report changes the status of a previously filed Safe or SWARMP Report. An Amended Report changes the status of a previously filed Unsafe Report to SWARMP or Safe.
When can the sidewalk shed be removed?
A sidewalk shed installed along a facade with Unsafe conditions must stay in place until either of two things happen:
- The DOB accepts the Amended FISP Report, upgrading the building status from “Unsafe” to either “Safe” or “Safe with a Repair and Maintenance Program.”
- A DOB inspector visits the property and agrees no unsafe conditions remain and authorizes complete or partial removal of the shed before filing and acceptance of the Amended Report.
Removing the sidewalk shed before either of one of these conditions is met can result in an $10,000 fine. If the shed has already been taken down and a DOB inspector subsequently determines there are still Unsafe conditions at the building, the shed will have to be reinstalled. Since it costs significantly more to reinstall a shed than pay the monthly shed rental, it is much more cost effective to keep the shed up until the DOB officially accepts the Amended Report.
What are the filing fees?
The DOB charges a $425 fee for the initial filing of FISP Reports and $425 for Amended or Subsequent Reports. There is also a fee of $305 for filing for a 90-day extension to repair Unsafe items.
What are the penalties for non-compliance?
- The monthly penalty for late filing is $1,000 per month past the deadline.
- An additional failure to file penalty, which is assessed on an annual basis, is $5,000.
- Owners who fail to correct an Unsafe Condition face a $1,000 per month penalty plus an additional monthly penalty based on the linear footage of sidewalk shed until the condition has been corrected and an acceptable Amended Report has been filed.
- A civil penalty of $2,000 will be assessed for failure to correct Safe with a Repair and Maintenance Program (SWARMP) conditions by the next cycle.