96-110

Harassment and cure

(a)        Definitions

(1)        Application date

“Application date” shall mean the date that the Department of Housing Preservation and Development accepts a completed application for a certification of no harassment for processing.

(2)        Cure compliance lot

“Cure compliance lot” shall mean a zoning lot on which low income housing is provided pursuant to a restrictive declaration in accordance with the cure provisions of paragraph (d) of this Section. Each cure compliance lot shall be located entirely within the corresponding cure requirement lot.

(3)        Cure requirement

“Cure requirement” shall mean floor area in an amount not less than the greater of:

(i)        28 percent of the total residential and hotel floor area of any multiple dwelling to be altered or demolished in which harassment has occurred; or

(ii)        20 percent of the total floor area of any new or altered building on the cure requirement lot.

Cure requirement shall also mean any cure for harassment that was approved by the City Planning Commission or the Department of Housing Preservation and Development and was permitted by the provisions of this Section prior to December 21, 2005.

        

(4)        Cure requirement lot

“Cure requirement lot” shall mean:

(i)        a zoning lot containing a multiple dwelling with respect to which the Department of Housing Preservation and Development has denied a certification of no harassment; or

 

(ii)        a zoning lot with respect to which an applicant, in lieu of seeking a certification of no harassment which would otherwise be required, elects to seek a certification of compliance with the cure provisions of paragraph (d) of this Section and enters into a restrictive declaration.

(5)        Dwelling unit

“Dwelling unit” shall have the meaning set forth in the Multiple Dwelling Law.

(6)        Exempt hotel

“Exempt hotel” shall mean any multiple dwelling:

(i)        which is a transient hotel and was a transient hotel on the referral date; and

(ii)        in which no residential occupant is, or was on the referral date, entitled to a renewal lease or otherwise entitled to continued occupancy pursuant to the Local Housing Emergency Rent Control Act, as amended, the City Rent and Rehabilitation Law, as amended, the Rent Stabilization Law of 1969, as amended, or the Emergency Tenant Protection Act of 1974, as amended; and

(iii)        which has been exempted from the provisions of this Section by written determination of the Department of Housing Preservation and Development.

(7)        Exempt institutional residence

“Exempt institutional residence” shall mean any multiple dwelling:

(i)        the occupancy of which is restricted to non-profit institutional use and was restricted to non-profit institutional use on the referral date; and

(ii)        which has been exempted from the provisions of this Section by written determination of the Department of Housing Preservation and Development.

(8)        Inquiry period

“Inquiry period” shall mean a period which:

(i)        commences 15 years prior to the application date; and

(ii)        terminates upon the application date;

provided, however, that the Department of Housing Preservation and Development may:

(a)        set such commencement date upon any date which is on or after the referral date, and is more than 15 years prior to the application date where it determines that such extension of the duration of the inquiry period would further the purposes of this Section; and

(b)        extend such termination date up to and including the date upon which the Department of Housing Preservation and Development determines to grant or deny a certification of no harassment.

(9)        Low income housing

“Low income housing” shall mean dwelling units or rooming units occupied or to be occupied by persons or families having an annual household income at the time of initial occupancy equal to or less than 80 percent of the median income for the primary metropolitan statistical area, as determined by the United States Department of Housing and Urban Development or its successors from time to time for a family of four, as adjusted for family size.

(10)        Referral date

“Referral date” shall mean September 5, 1973.

(11)        Restrictive declaration

“Restrictive declaration” shall mean a legal instrument which:

(i)        provides that low income housing in an amount not less than the cure requirement shall be provided in a new or altered multiple dwelling on the cure compliance lot;

(ii)        provides that the low income housing must comply with the requirements of Section 23-90 for rental affordable housing provided without public funding, as amended by this Chapter, unless any such requirement is waived by the Department of Housing Preservation and Development. However, in the Preservation Area, paragraph (c) of Section 23-96 (Requirements for Generating Sites or MIH Sites), shall be inapplicable and in its place and stead, paragraph (a) of Section 96-105 (Dwelling unit regulations) shall be applicable;

(iii)        contains such other terms as the Department of Housing Preservation and Development shall determine;

(iv)        has been approved by the Department of Housing Preservation and Development;

(v)        runs with the land and binds all parties in interest to the cure requirement lot and their successors;

(vi)        runs with the land and binds all parties in interest to the cure compliance lot and their successors; and

(vii)        is perpetual in duration.

(12)        Rooming unit

Rooming unit shall have the meaning set forth in the Housing Maintenance Code.

(b)        Permit Process

(1)        Unless the Department of Housing Preservation and Development has issued a certification of no harassment pursuant to paragraph (c) of this Section or has certified compliance with the cure provisions of paragraph (d) of this Section, no permit may be issued by the Department of Buildings pursuant to Sections 96-109 or 96-24, and no special permit may be granted by the City Planning Commission pursuant to Sections 96-107 or 96-108.

(2)        The following structures shall be exempt from the provisions of this Section:

(i)        any city-owned multiple dwelling;

(ii)        any multiple dwelling which is the subject of a program approved by the Department of Housing Preservation and Development for the provision of housing for persons of low or moderate income and has been exempted from the provisions of this Section by written determination of the Department of Housing Preservation and Development;

(iii)        any multiple dwelling initially occupied for residential purposes after January 1, 1974, except for buildings which are or have been interim multiple dwellings pursuant to Article 7C of the Multiple Dwelling Law;

(iv)        any exempt hotel;

(v)        any multiple dwelling in which occupancy is restricted to clubhouse or school dormitory use and occupancy was restricted to clubhouse or school dormitory use on the referral date; and

(vi)        any exempt institutional residence.

(3)        Where the Department of Housing Preservation and Development has denied a certification of no harassment with respect to a multiple dwelling, the Department of Buildings shall not issue any permit with respect to any multiple dwelling or other building located on, or to be located on, the cure requirement lot except in accordance with paragraph (d) of this Section.

(c)        Certification of No Harassment

(1)        The Department of Housing Preservation and Development shall determine and certify whether there has been harassment of the lawful occupants of a multiple dwelling during the inquiry period.

(2)        There shall be a rebuttable presumption that harassment occurring within the inquiry period was committed by or on behalf of the owner of such multiple dwelling and that such harassment:

(i)        was committed with the intent to cause a person lawfully entitled to occupancy of a dwelling unit or rooming unit in such multiple dwelling to vacate such unit or to surrender or waive a right in relation to such occupancy; and

(ii)        materially advanced the demolition or alteration in furtherance of which the permit and certification of no harassment are sought.

 

(3)        The Department of Housing Preservation and Development may promulgate rules regarding the implementation of this Section. Such rules may include, but shall not be limited to, provisions which:

 

(i)        establish the information to be required in an application for certification of no harassment, the form of such application, and the manner of filing of such application;

 

(ii)        establish reasonable fees and charges to be collected from applicants for the administrative expenses incurred by the Department of Housing Preservation and Development including, but not limited to, costs for publication of any notices;

 

(iii)        establish the duration for which a certification of no harassment will remain effective; and

 

(iv)        authorize the recission of a certification of no harassment if the Department of Housing Preservation and Development finds either that harassment has occurred after the inquiry period or that the application for such certification of no harassment contained a material misstatement of fact. Following such recission, the Department of Buildings may revoke any permit for which such certification of no harassment was required.

(4)        The Department of Housing Preservation and Development may refuse to accept, or to act upon, an application for a certification of no harassment where the Department of Housing Preservation and Development finds that:

(i)        taxes, water and sewer charges, emergency repair program charges, or other municipal charges remain unpaid with respect to such multiple dwelling;

(ii)        such multiple dwelling has been altered either without proper permits from the Department of Buildings or in a way that conflicts with the certificate of occupancy for such multiple dwelling (or, where there is no certificate of occupancy, any record of the Department of Housing Preservation and Development indicating the lawful configuration of such multiple dwelling) and such unlawful alteration remains uncorrected; or

(iii)        the Department of Housing Preservation and Development has previously denied an application for a certification of no harassment pursuant to this Section.

(5)        If the Department of Housing Preservation and Development determines that an application for a certification of no harassment contains a material misstatement of fact, the Department of Housing Preservation and Development may reject such application and bar the submission of a new application with respect to such multiple dwelling for a period not to exceed three years.

(6)        Before determining whether there is reasonable cause to believe that harassment has occurred with respect to any multiple dwelling, the Department of Housing Preservation and Development shall publish a notice in such form and manner as shall be specified in the rules promulgated pursuant to paragraph (c)(3) of this Section. Such notice shall seek public comment regarding whether there has been harassment of the lawful occupants of such multiple dwelling from the referral date to the date of submission of comments. If the Department of Housing Preservation and Development receives comments containing material evidence that harassment occurred on or after the referral date and more than 15 years prior to the application date, the Department of Housing Preservation and Development shall, in accordance with paragraph (a)(8) of this Section, set the commencement of the inquiry period on a date prior to the date of such alleged harassment.

(7)        The Department of Housing Preservation and Development shall determine whether there is reasonable cause to believe that harassment has occurred during the inquiry period.

(i)        If there is no reasonable cause to believe that harassment has occurred during the inquiry period, the Department of Housing Preservation and Development shall issue a certification of no harassment.

(ii)        If there is reasonable cause to believe that harassment has occurred during the inquiry period, the Department of Housing Preservation and Development shall cause a hearing to be held in such manner and upon such notice as shall be determined by the Department of Housing Preservation and Development, unless the applicant waives the right to a hearing. Following receipt of the report and recommendation of the hearing officer, or receipt of a waiver of the right to such a hearing from the applicant, the Department of Housing Preservation and Development shall either grant or deny a certification of no harassment.

(8)        The Department of Housing Preservation and Development may deny a certification of no harassment without a prior hearing if there has been a finding by the Division of Housing and Community Renewal or any court having jurisdiction that there has been harassment, unlawful eviction or arson at the multiple dwelling during the inquiry period.

(d)        Certification of Cure for Harassment

(1)        The Department of Housing Preservation and Development shall not certify compliance with the cure provisions of this paragraph to the Department of Buildings unless all parties in interest to the cure requirement lot and all parties in interest to the cure compliance lot have entered into a restrictive declaration.

(2)        Any permit or certificate of occupancy issued by the Department of Buildings with respect to any structure located on a cure requirement lot or a cure compliance lot shall be subject to the following conditions:

(i)        The Department of Buildings shall not issue any permit, except a permit for an alteration which is not a material alteration, with respect to any structure located on the cure requirement lot unless the restrictive declaration has been recorded in the Office of the City Register and indexed against each tax lot within the cure requirement lot and each tax lot within the cure compliance lot.

(ii)        The Department of Buildings shall not issue any temporary or permanent certificate of occupancy for any new or existing structure or portion thereof on the cure requirement lot, other than any low income housing located on the cure requirement lot, until:

(a)        the Department of Housing Preservation and Development certifies that the low income housing required by the restrictive declaration has been completed in compliance with the restrictive declaration; and

(b)        the Department of Buildings has issued a temporary or permanent certificate of occupancy for each unit of such low income housing.

(iii)        The Department of Buildings shall include the occupancy restrictions of the restrictive declaration in any temporary or permanent certificate of occupancy for any new or existing structure or portion thereof on the cure compliance lot. Failure to comply with the terms and conditions set forth in the restrictive declaration shall constitute a violation, and a basis for revocation, of any certificate of occupancy containing such restriction.

(iv)        The Department of Buildings shall include the occupancy restrictions of the restrictive declaration in any temporary or permanent certificate of occupancy for any new or existing structure or portion thereof on the cure requirement lot, except where the management and operation of the cure compliance lot is wholly controlled by, and the restrictive declaration requires that management and operation of the cure compliance lot remain wholly controlled by, an independent not-for-profit administering agent that is not affiliated with the owner of the cure requirement lot. Failure to comply with the terms and conditions set forth in the restrictive declaration shall constitute a violation, and a basis for revocation, of any certificate of occupancy containing such restriction.

(3)        No portion of the low income housing required under this Section shall qualify to:

(i)        increase the floor area ratio pursuant to Section 96-21 (Special Regulations for 42nd Street Perimeter Area); Section 96-22 (Special Regulations for Eighth Avenue Perimeter Area); any floor area ratio increase provision of the Special Garment Center District, Special Hudson Yards District, Special West Chelsea District; or Section 23-90; or

(ii)        satisfy an eligibility requirement of any real property tax abatement or exemption program with respect to any multiple dwelling that does not contain such low income housing.

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