Property owners and other qualifying individuals will be given additional time following a disaster to make repairs and clear their property, without incurring penalties for certain municipal violations.  Two new disaster recovery laws adopted by the New York City Council take effect August 8, 2016, and apply retroactively to situations that arose following Hurricane Sandy.

Building Code Violations: Exceptions

Int. 1037-A adds provisions to the city’s Construction and Sanitation Codes that apply for a period of time following a disaster, or while property is covered by a city disaster recovery program.

For 90 days following a “natural or man-made disaster,” penalties arising from a Construction Code violation will not be enforced against covered individuals, provided the violation is corrected within 40 days of the disaster period.  Penalties are waived for 6 months following a “major” disaster, also provided that the violation is corrected within the next 40 days.  The Building Commissioner may grant additional time on a case by case basis.

The law does not create a blanket exception to violations issued during the disaster period, however.  The exception applies only to violations connected to the disaster.  For example, a homeowner would not be penalized for shoddy repair work to a water heater that was damaged in a hurricane, but nonetheless could be penalized for an out-of-code water heater that coincidentally broke down following the hurricane due to age.  Moreover, the penalty exception does not apply to “immediately hazardous” or “aggravated” violations, which are immediately enforceable even if they resulted from the disaster.

The law also creates an exception for property covered by a city-operated disaster recovery program.  Construction code penalties will not be assessed while the property is “undergoing, or scheduled or under evaluation” for work or acquisition through such a program.

Sanitation Code Violations: Affirmative Defenses 

Int. 1037-A also creates affirmative defenses to certain Sanitation Code violations.  A defense can be asserted by covered individuals who receive a litter citation within 30 days of a disaster.  A citation for failing to remove snow, ice or dirt from the sidewalk can be challenged by individuals who are displaced from a home that is connected to a city-operated disaster relief program.  Moreover, the Sanitation Commissioner may extend that period under reasonable circumstances.

Code Violations Caused by City Employees or Contractors

Int. 448-A applies to work performed by a city employee or contractor.  Under prior law, a code violation resulting from improper work done by a city employee or contractor was enforceable against the property owner.  Under this new law, property owners have 60 days to correct the violation without incurring a penalty, and can be granted additional time by demonstrating that the city employee or contractor “has committed” to making the necessary repairs.

To take advantage of this provision, property owners should understand how most disaster recovery programs operate.  Following a disaster, the city will either assign its own workers or contract with private construction companies to repair damaged property.  When demand for contractors is high, there may not be enough licensed, in-state companies to do all of the work.  The city might therefore hire out-of-state companies that may not keep a regular place of business in New York.  Property owners who participate in the program do not always have an independent contractual relationship with the company doing repair work, but should nonetheless keep up-to-date contact information on them.  In the event of a code violation, the property owner will need to find them long after the work is done, to demonstrate that the contractor “has committed” to making necessary repairs.

What This Means For People Recovering From Disaster

These new laws reflect lessons learned from Hurricane Sandy, when unfair and burdensome penalties were levied against severely damaged or wholly destroyed property.  In one example, a disabled low-income woman spent more than $45,000 on repairs – borrowing from friends and charging credit cards – in order to clear citations on a home the storm had rendered uninhabitable.  In another case, a $500 fine was upheld against a home owner whose property was being evaluated for the Build It Back program, even though officials advised him not to make any repairs before he was accepted into the program.  Going forward, property owners in similar circumstances will not be penalized, and have a legal basis for challenging improperly issued penalties.

To challenge an improper violation, however, it is important to note procedural differences between Int. 1037-A and 448-A.  These amendments establish “exceptions” to the Construction Code, and create “affirmative defenses” under the Sanitation Code.  The legal mechanisms for asserting a challenging will differ, depending on the type of violation that is issued.  The “notice of violation” handed to the property owner should clearly explain what steps to follow.  Otherwise, people who have questions about a citation should not hesitate to contact an attorney experienced in representing Hurricane Sandy survivors.