Real Estate Board of New York to The Department of Buildings on the Draft Bulletin regarding Substantial Construction

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The Real Estate Board of New York (REBNY) is the City’s leading real estate trade association representing commercial, residential, and institutional property owners, builders, managers, investors, brokers, salespeople, and other organizations and individuals active in New York City real estate.

REBNY appreciates the Department of Buildings’ (DOB) continued efforts to clarify the “substantial construction” standard for vesting authorizations, variances, and special permits granted by the City Planning Commission (CPC) and Board of Standards and Appeals (BSA). The revised draft incorporates edits from prior dialogues, particularly for applications without foundation work. REBNY offers the following recommendations to further clarify and appropriately calibrate the requirements.

In order to achieve substantial completion for purposes of vesting prior to the automatic lapse of an authorization, variance or special permit, the bulletin requires completion of all excavation and installation of all foundation work. The 1987 memorandum on completion of foundations for purposes of ZR 11-31 sets forth standards regarding completion of foundations which apply equally to substantial construction under ZR 11-42 and similar provisions; accordingly, these same standards should be directly incorporated in the bulletin. The 1987 memorandum states, "foundations include piles, pile caps, footings, and the perimeter building walls below grade level as well as elevator and boiler pit enclosure walls." The 1987 memorandum further states that interior piers and columns, as well as non-structural floors poured on grade, are not included. All the above should be clearly reflected in the bulletin.

In addition, the bulletin should clarify that completion of foundations does not include reasonable ‘leave out areas’ within foundation elements, used in order to accommodate future logistics of the new building, as necessary to support such equipment as a tower crane, hoists, and utilities.

The Bulletin should also clarify that a ground floor or below grade levels with infill slabs are not necessarily required as part of the foundation “bathtub” even if shown on foundation plans submitted to DOB. Those levels are typically required by DOB to be shown on foundation drawings, allowing the agency to determine whether it should be required to hold up the foundation walls against lateral pressure if other measures are not in place such as temporary bracing or support of excavation.

For applications without foundation work, REBNY recommends reducing the proposed 50 percent construction-cost threshold. Excavation and foundation work can represent a significant share of new construction costs while occurring relatively early in development. A 20–30 percent threshold would better measure meaningful progress while still requiring substantial investment. DOB should also consider whether 50 percent is appropriate for vesting CPC or BSA approvals, given the separate provision in Zoning Resolution Section 52-531 concerning retention of non-complying buildings where at least 50 percent of the floor area remains.

REBNY also requests clarification on whether executed contract costs may count toward the percentage of construction completed when the developer is committed but the work is not yet in place. Developers may make significant commitments for materials, equipment, and services before installation. DOB should explain how these costs are treated and whether any portion may count toward the threshold. Clear guidance would promote consistent reports and certifications by registered design professionals and help applicants understand how progress will be evaluated.

Finally, REBNY recommends consistent terminology for the required status of foundation work. Section II.A–C refers to “installation,” while Figure A and the related certification language refer to “completion.” These terms may convey different standards: installation may mean elements are in place, while completion suggests all required work is finished. Because this distinction affects when substantial construction is achieved, DOB should use consistent terminology throughout the bulletin, figures, certification requirements, and administrative procedures, and identify the specific foundation elements that must be completed for vesting.

Thank you for the consideration of these points and we look forward to continued engagement on this issue.

CONTACTS:
Maddie DeCerbo
Senior Director of Urban Planning
Real Estate Board of New York
Mdecerbo@rebny.com