N.Y.C. Admin. Code § BC 3309: Section BC 3309: Protection of Adjoining Property

3309.1 Protection required.

Adjoining public and private property, including persons thereon, shall be protected from damage and injury during construction or demolition work. Protection must be provided for footings, foundations, party walls, chimneys, skylights and roofs as specified by this section. Provisions shall also be made to control water run-off and erosion during construction or demolition activities. Where the New York City Department of Environmental Protection has issued a stormwater construction permit for a covered development project, such run-off and erosion controls shall be installed and maintained in accordance with the rules of the Department of Environmental Protection and this code.

3309.1.1 Notification.

Where a construction or demolition project will require access to adjoining property in accordance with this section, written notification shall be provided to the adjoining property owner at least 60 calendar days prior to the commencement of work. Such notification shall describe the nature of work, estimated schedule and duration, details of inspections or monitoring to be performed on the adjoining property, protection to be installed on the adjoining property, and contact information for the project. Where no response is received, a second written notification shall be made no more than 45 calendar days, and not less than 30 calendar days, prior to the commencement of work.

3309.2 License to enter adjoining property.

The responsibility of affording any license to enter adjoining property shall rest upon the owner of the adjoining property involved; and in case any tenant of such owner fails or refuses to permit the owner to afford such license, such failure or refusal shall be a cause for the owner to dispossess such tenant through appropriate legal proceedings for recovering possession of real property. Nothing in this chapter shall be construed to prohibit the owner of the property undertaking construction or demolition work from petitioning for a special proceeding pursuant to Section 881 of the Real Property Actions and Proceedings Law.

3309.3 Physical examination.

When permission to enter upon adjoining property has been obtained, a physical examination of such property shall be conducted by the person causing the construction or demolition operations prior to the commencement of the operations and at reasonable periods during the progress of the work. Observed conditions shall be recorded by the person causing the construction or demolition operations, and such records shall be made available to the department upon request.

3309.4 Soil or foundation work affecting adjoining property.

Whenever soil or foundation work occurs, regardless of the depth of such, the person who causes such to be made shall, at all times during the course of such work and at his or her own expense, preserve and protect from damage any adjoining structures, including but not limited to footings and foundations, provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the soil or foundation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of such adjoining property, who shall be afforded a similar license with respect to the property where the soil or foundation work is to be made.

3309.4.1 Additional safeguards during excavation.

The following additional requirements shall apply during excavation:

1. The person causing the excavation shall support the vertical and lateral load of the adjoining structure by proper foundations, underpinning, or other equivalent means where the level of the foundations of the adjoining structure is at or above the level of the bottom of the new excavation.

2. Where the existing adjoining structure is below the level of the construction or demolition, provision shall be made to support any increased vertical or lateral load on the existing adjoining structure caused by the construction or demolition.

3. Where the construction or demolition will result in a decrease in the frost protection for an existing foundation below the minimums established in Section 1809.3.1, the existing foundation shall be modified as necessary to restore the required frost protection.

3309.4.2 Support of party walls.

Where a party wall will be affected by excavation, regardless of the depth, the person who causes the excavation to be made shall preserve such party wall at his or her own expense so that it shall be, and shall remain, in a safe condition. Where an adjoining party wall is intended to be used by the person causing an excavation to be made, and such party wall is in good condition and sufficient for the uses of the existing and proposed buildings, it shall be the duty of such person to protect such party wall and support it by proper foundations, so that it shall be and remain practically as safe as it was before the excavation was commenced.

3309.4.3 Preconstruction survey.

No excavation work to a depth of 5 feet to 10 feet (1524 mm to 3048 mm) within 10 feet (3048 mm) of an adjacent building, or an excavation over 10 feet (3048 mm) anywhere on the site shall commence until the person causing an excavation to be made has documented the existing conditions of all adjacent buildings in a preconstruction survey. In addition to the preconstruction survey, a geotechnical report in accordance with Section 1803.6, and an evaluation analysis in accordance with Section 1817, shall be prepared when required by Chapter 18.

3309.4.4 Monitoring.

During the course of excavation work the following shall be monitored in accordance with Section 3309.16:

1. Buildings that are within a distance from the edge of the excavation that is equal to or less than the maximum depth of the excavation.

2. Historic structures that are contiguous to or within a lateral distance of 90 feet (27 432 mm) from the edge of the lot where an excavation is occurring.

Exception: Monitoring is not required for excavations to a depth of five feet (1523 mm) or less, provided:

1. The excavation occurs more than 5 feet (1524 mm) from all footings and foundations; or

2. Where the excavation occurs within five feet (1524 mm) or less from a footing or foundation, such excavation does not occur below the level of the footing or foundation.

3309.4.5 Potential hazard.

When, in the opinion of the commissioner, a potential hazard exists as a result of soil or foundation work, elevations of the adjacent buildings shall be recorded or other monitoring procedures shall be implemented by a registered design professional at intervals of 24 hours or less as determined by the commissioner to ascertain if movement has occurred.

3309.5 Underpinning or alternate methods of support of buildings and adjacent property.

Whenever underpinning or an alternate method of support of buildings and adjacent property is required to preserve and protect an adjacent property from construction, demolition, or excavation work, the person who causes such work shall, at his or her own expense, underpin or otherwise support the adjacent building and property provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the construction, demolition, or excavation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of the adjoining property, who shall be afforded a similar license with respect to the property where the construction, demolition, or excavation is to be performed.

3309.6 Subsurface operations affecting adjacent properties.

Whenever subsurface operations, other than excavation or fill, are conducted that may impose loads or movements on adjoining property, including but not limited to the driving of piles, compaction of soils, or soil solidification, the effects of such operations on adjoining property and structures shall be monitored in accordance with Section 3309.16.

Exception: Monitoring during underpinning or alternate methods of support of buildings and adjacent property shall be in accordance with Section 1817.

3309.6.1 Change in ground water level.

Where placement of a foundation will cause changes in the ground water level under adjacent buildings, the effects of such changes on the stability and settlement of the adjacent foundations shall be investigated and provision shall be made to prevent damage to such buildings.

3309.6.2 Potential hazard.

When, in the opinion of the commissioner, a potential hazard exists as a result of subsurface operations, elevations of the adjacent buildings shall be recorded or other monitoring procedures shall be implemented by a registered design professional at intervals of 24 hours or less as determined by the commissioner to ascertain if movement has occurred.

3309.7 Retaining structures.

The requirements of Article 305 of Chapter 3 of Title 28 of the Administrative Code shall apply to the regulation of retaining structures.

3309.8 Adjoining walls.

When any construction or demolition operation exposes or breaches an adjoining wall, including load bearing and nonload-bearing walls as well as party walls and non party walls, the person causing the construction or demolition operation shall, at his or her own expense, perform the following:

1. Maintain the structural integrity of such walls and adjoining structure, and have a registered design professional investigate the stability and condition of the wall and adjoining structure, and take all necessary steps to protect such wall and structure.

2. Maintain all required fire exits and passageways or provide substitutions meeting the requirements of this code.

3. Cut off close to the walls all beams in party walls, remove stub ends without weakening existing masonry, clean beam pockets of loose mortar, bend over all wall anchors at the beam ends in the standing wall, and brick-up all open beam holes with sound brick and compatible mortar.

4. During demolition operations, where the floor beams of the adjacent building bear on the party wall, the person causing the demolition shall ascertain that such beams are anchored into the wall and, where such anchorage is lacking, shall provide anchorage or otherwise brace the standing wall.

5. During demolition operations, all nonload-bearing chimney breasts, projections and any other debris exposed on party walls shall be examined and monitored by the person causing the demolition. Removal of such items shall be made under the supervision of a registered design professional only if the stability of the adjacent building or structure will not be affected. All openings shall be bricked up flush on the exposed side of the party wall. All masonry that is in poor condition shall be pointed and patched.

3309.9 Weatherproof integrity of adjoining buildings.

Where the waterproof integrity of an adjoining wall or building has been impaired due to construction or demolition operations, the person causing the construction or demolition operations shall, at his or her own expense, provide all necessary measures to permanently waterproof the adjoining wall or building in order to establish or restore the weatherproof integrity of such adjoining wall or building. This shall include, but is not limited to:

1. Bending over and flashing all roofing material of adjoining buildings;

2. Sealing and permanently waterproofing all doors or other openings in party walls;

3. Properly sealing all cornices, where cut;

4. Pointing up and making waterproof any walls and parapets and any walls that have been disturbed;

5. Removing all exposed furring, lath, and plaster on party walls; and

6. Removing, replacing, and firmly anchoring any loose wall material.

3309.10 Protection of roofs.

Whenever any building is to be constructed or demolished above the roof of an adjoining building, it shall be the duty of the person causing such work to protect from damage at all times during the course of such work and at his or her own expense the roof, skylights, other roof outlets, and equipment located on the roof of the adjoining building, and to use every reasonable means to avoid interference with the use of the adjoining building during the course of such work, provided such person causing such work is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining building and perform such work thereon as may be necessary for such purpose; otherwise, the duty of protecting the roof, skylights, other roof outlets, and equipment on the roof of the adjoining building shall devolve upon the owner of such adjoining building.

Adjoining roof protection shall be secured to prevent dislodgement by wind. Where construction or demolition work occurs at a height of at least 48 inches (1219 mm) above the level of the adjoining roof, adjoining roof protection shall consist of 2 inches (51 mm) of flame-retardant foam under 2 inches (51 mm) of flame-retardant wood plank laid tight and covered by flame-retardant plywood, or shall consist of equivalent protection acceptable to the commissioner, and shall cover all areas of the adjoining roof that are within a horizontal distance from the building being constructed or demolished equal to the height above the adjoining roof of the highest working level of the building being constructed or demolished, to a maximum of 20 feet (6096 mm), or to a greater maximum when ordered by the commissioner due to a unique hazard at the site.

Exceptions:

1. Adjoining roof protection is not required along an exposure where a site specific engineered enclosure system that is acceptable to the commissioner and meets the requirements of Section 3309.17 has been installed to cover the entire exposure where work is occurring.

2. Where vents, equipment, or similar obstructions are present on the roof, the roof protection shall be elevated to avoid interference, or an equivalent elevated system, designed by a registered design professional, shall be installed.

3. Occupiable spaces on an adjoining roof, such as a roof terrace, observation deck, rooftop bar, or residential balcony, that will not be closed during the work, shall instead be protected in accordance with Section 3309.13.

3309.11 Protection of trees.

No trees outside the property line within the public right-of-way shall be disturbed or removed without the permission of the commissioner of the department of parks and recreation. Protection meeting the requirements of the department of parks and recreation shall be provided for all such trees, and written notification shall also be made to the department of parks and recreation at least 48 hours prior to commencement of such work.

3309.11.1 Deleterious, caustic, or acid materials.

No deleterious, caustic, or acid materials shall be dumped or mixed within 10 feet (3048 mm) of any tree within the public right-of-way, nor shall salt for the removal of ice or snow be applied when runoff will drain to a tree within the public right-of-way.

Exceptions:

1. Mixing, delivery, or placement of concrete from a concrete mixer or concrete truck.

2. Application of de-icing materials as necessary to prevent slipping and tripping hazards in areas accessible to the public during periods where freezing conditions are to be encountered.

3309.12 Protection of chimneys.

Any person having the duty to alter or maintain chimneys of any adjoining building under and pursuant to the provisions of this code, the New York City Mechanical Code, the New York City Fuel Gas Code, or other applicable laws and rules shall be afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect such adjoining building and perform such work thereon as may be necessary for such purpose; otherwise, such duty shall devolve upon the owner of such adjoining building.

3309.13 Protection of adjoining equipment and spaces.

Whenever a building is constructed or demolished, it shall be the duty of the person causing such work to protect from damage, at all times during the course of such work and at his or her own expense, all mechanical, electrical, and similar equipment on the adjoining property, and to protect all publicly accessible spaces on the adjoining property, and also to use every reasonable means to avoid interference with the use of such equipment and spaces during the course of such construction or demolition work, provided such person causing such work is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining property and perform such work thereon as may be necessary for such purpose; otherwise, the duty of protecting such adjoining equipment and spaces shall devolve upon the owner of such adjoining property.

Adjoining equipment and space protection shall be secured to prevent dislodgement by wind. Where the construction or demolition work requires a site safety plan in accordance with Section 3301.13 or 3310 and access to the equipment or space is not precluded, adjoining equipment and space protection shall be designed to provide a level of overhead protection equivalent to that provided by a sidewalk shed in accordance with Section 3307, and shall cover all adjoining equipment or spaces that are within a horizontal distance from the building being constructed or demolished equal to the height of the highest working level of the building being constructed or demolished, to a maximum of 20 feet (6096 mm), or to a greater maximum when ordered by the commissioner due to a unique hazard at the site.

Exceptions:

1. Equipment on an adjoining roof shall be protected in accordance with Section 3309.10.

2. Adjoining equipment and space protection is not required along an exposure where a site specific engineered enclosure system, acceptable to the commissioner, and meeting the requirements of Section 3309.17, has been installed to cover the entire exposure where work is occurring.

3309.14 Protection of windows.

Whenever exterior construction or demolition work occurs, and such work results in an unenclosed perimeter, it shall be the duty of the person causing such work to protect from damage, at all times during the course of such work and at his or her own expense, all windows on adjoining private property that face such work and are 20 feet (508 mm) or less from an unenclosed perimeter, provided such person causing such work is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining property and perform such work thereon as may be necessary for such purpose; otherwise, the duty of protecting the adjoining windows shall devolve upon the owner of such adjoining building.

Where the window provides required means of natural lighting, natural ventilation, or egress, such protection shall not be allowed to interfere with such required means.

Exceptions: Window protection is not required for:

1. Minor alterations and ordinary repairs.

2. Work performed on a 1-, 2- or 3-family detached house or accessory use to such.

3. Locations where the unenclosed perimeter of the building under construction or demolition is protected along the entire exposure by vertical netting that meets the requirements of Section 3308.5, supported scaffolding provided with guardrails and netting in accordance with Section 3314.8, or an equivalent alternative system acceptable to the commissioner.

3309.15 Modifications and alternate methods.

The commissioner may, in accordance with Section 28-103.3 of the Administrative Code, and based upon a written request from a registered design professional, modify the requirements for adjoining property protection required by this section, including but not limited to authorizing the installation or use of alternative methods of surveying, monitoring, inspection, or protection.

3309.16 Monitoring plan.

Where monitoring is required by Section 3309, such monitoring shall be in accordance with a monitoring plan developed by a registered design professional and acceptable to the commissioner. The monitoring plan shall be specific to the structures to be monitored and operations to be undertaken, and shall specify the scope and frequency of monitoring, acceptable tolerances, and reporting criteria for when tolerances are exceeded. Monitoring plans shall also comply with the applicable requirements of Chapter 18 and Sections 3303, 3304, and 3306.

3309.17 Site specific engineered enclosure system.

Site specific engineered enclosure systems authorized by this section shall meet the following requirements:

1. The engineered enclosure system shall be designed by a registered design professional. The design shall be specific to the site and shall meet all temporary load requirements, including but not limited to wind, as prescribed in Chapter 16;

2. The engineered enclosure system shall be acceptable to the commissioner;

3. The engineered enclosure system shall be positioned exterior of the building under construction or demolition and shall cover all areas along the exposure where work is occurring or openings in the building are present;

4. The lowest horizontal level of the engineered enclosure system shall be designed to meet the design loads required for a sidewalk shed in accordance with Section 3307.6.4.2, shall be positioned such that it is located at or below the lowest level of work and openings in the building along the exposure, and shall be brought tight to the face of the building under construction or demolition, except that a gap, not to exceed 1 inch (25 mm), along the face of the building is permissible, provided the resulting gap is sealed or covered by material of sufficient manner and strength capable of trapping falling objects;

5. The vertical surfaces of the engineered enclosure system shall be covered fully by material capable of stopping material or debris generated by the work. Such vertical covering shall be brought tight to the face of the engineered enclosure system. Where necessary to control material or debris, the material shall be rigid and solid, or shall, at a minimum, be a rigid galvanized welded wire screen of not less than No. 16 steel wire gauge, with no opening larger than 1/2 inch (13 mm) in the vertical or horizontal dimensions and 3/4 inch (19 mm) in any other dimension, backed by fine debris netting located interior of the steel wire screen;

6. The engineered enclosure system shall be installed, inspected, repaired, maintained, adjusted, used, and removed as indicated on the plans for the engineered enclosure system. Inspections shall be performed, at a minimum, following each installation or reinstallation, each day while in use, periodically while not in use, prior to forecasted inclement weather events, and subsequent to inclement weather events; and

7. A controlled access zone, acceptable to the commissioner, or protection in accordance with Sections 3309.10 or 3309.13, shall be provided to protect the adjoining property whenever the engineered enclosure system is installed or removed, and when otherwise warranted during repairs, maintenance, or adjustments. Such controlled access zone or protection shall be indicated on the plans for the engineered enclosure system.