Marc Luxemburg, partner at Gallet Dreyer & Berkey, LLP and president of the New York Council of Cooperatives and Condominiums, quoted in Habitat Magazine's article "Enclosed Balconies Can Stay – Provided They’re Safe."

By Bill Morris, May 3, 2018

Co-ops and condominiums across the New York City have just received a very pleasant surprise from the Department of Buildings (DOB). Last fall, the DOB issued a notice requiring owners of apartments with enclosed balconies to meet a pair of requirements during facade inspections mandated every five years under the Facade Inspection & Safety Program (FISP), commonly known as Local Law 11. First, owners of enclosed balconies would need to get an architect or engineer to certify that the balconies are structurally sound; second, and far more onerous, owners would have until the 9th Cycle filing deadline (beginning in February, 2022) to prove that the structures have legal permits. 

The notice caused great anxiety among co-op and condo residents and their boards because many of the enclosures were erected years ago, sometimes by previous owners, frequently without permits. But legalizing the enclosures, it was feared, would push many buildings to exceed their allowable Floor Area Ratio (FAR) because the enclosed balconies, in essence, added livable square footage to the apartments. Forced removal of illegal enclosures became a dreaded prospect. It was a bureaucratic hornet’s nest, with millions of dollars at stake. Now comes the pleasant surprise. 

“Owners will not be required to obtain permits for balcony enclosures,” DOB spokeswoman Abigail Kunitz tells Habitat. “But these structures will need to be examined to ensure their safety every five years as part of the Local Law 11 compliance inspections.” 

“It’s a big sigh of relief for everybody that the DOB is going to focus on safety,” says Stephen Varone, president of RAND Engineering & Architecture. “A lot of co-ops and condos were going to have difficulties because there was no way to legalize a lot of the enclosed balconies under FAR. Demolishing them would have run into legal problems, if someone had purchased an apartment with a certain number of rooms. Boards were looking at a lot of costs and legal ramifications. Instead, DOB is going to be focusing on structural stability, like they’ve always done with FISP.”

Attorney Marc Luxemburg, a partner at Gallet, Dreyer & Berkey and president of the New York Council of Cooperatives and Condominiums, agrees. "To the extent that the DOB does not require the removal of safe enclosures," he says, "that's going to save a lot of people a lot of big headaches." 

The issue was clearly a political bombshell inside city government. In an interview in the May issue of Habitat, DOB Commissioner Rick Chandler acknowledged that the department’s staff was wrestling with the explosive possibility of ordering people to remove balconies that failed to comply with FAR zoning requirements. “We’re in a little bit of a challenged space,” Chandler said, “because the design of these buildings was not intended to have those balconies enclosed, and we have to consider how much zoning floor area was used. Part of our quandary is the fact that these enclosures have added bulk to the building. We’re trying to do what we do with everything, and that is to facilitate safe, compliant development. Safety is first.” 

So the DOB has decided to defuse the bomb by focusing on safety. It’s worth remembering that existing enclosed terraces are grandfathered under the DOB’s decision, but anyone who wants to erect an enclosure in the future will have to obtain a permit, according to the DOB.