Section 3309 Protection of Adjoining Property

Adjoining public and private property, including persons thereon, shall be protected from damage and injury during construction or demolition work in accordance with the requirements of this section. Protection must be provided for footings, foundations, party walls, chimneys, skylights and roofs. Provisions shall be made to control water run-off and erosion during construction or demolition activities.

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.

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.

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.

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.

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 1805.3.1, the existing foundation shall be modified as necessary to restore the required frost protection.

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.

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.

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.

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.

Whenever underpinning 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 the adjacent building 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.

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 shall be in accordance with Section 1814.

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.

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 by a registered design professional at intervals of 24 hours or less as determined by the commissioner to ascertain if movement has occurred.

When the regulation of a lot requires the ground on such lot to be raised or lowered and kept higher than the ground of the adjoining lot, provided the ground of such adjoining lot is not maintained at a grade lower than in conformity with the street or streets on which it is situated; or where an excavation has been made or a fill placed on any lot meeting the curb level requirements; and the adjoining land is maintained at a grade in conformity with or lower than the streets or streets on which it is situated; and is without permanent structures other than frame sheds or similar structures, a retaining structure shall be constructed for the safe support of adjoining ground, unless the bank between the adjoining properties is maintained at a safe angle of repose. Any necessary retaining wall shall be built and maintained jointly by the owners on each side, unless otherwise agreed to by both owners.

Where any owner maintains his or her ground either higher or lower than the legal regulation prescribed in the Administrative Code, the surplus retaining structure that may be necessary to support such height or provide for such excavation shall be made at the sole expense of such owner, and any additional thickness that may be required shall be built on the land of such owner.

Any retaining structure erected as provided above, standing partly on the land of each owner, may be removed by either owner when the original reason for the erection of such retaining structure ceases to exist.

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 cement 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 exterior side of the party wall. All masonry that is in poor condition shall be pointed and patched.

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.

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 extend to a distance of at least 20 feet (508 mm) from the edge of the building being constructed or demolished.

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.

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.

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.

Whenever a major building is constructed or demolished, and provided such work requires a site safety plan in accordance with Section 3310, 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 that are within 20 feet (508 mm) from an unenclosed perimeter of the major building, and to protect all publically accessible spaces on the adjoining property that are within 20 feet (508 mm) from an unenclosed perimeter of the major building, 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.

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

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 lighting, 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 one -, two - or three -family detached house or accessory use to such.

3. Where all unenclosed perimeters are protected by vertical netting that meets the requirements of Section 3308.5, or an approved alternate system, that extends to cover the full height and width of the unenclosed perimeter; or a supported scaffold covers the full width of the unenclosed perimeter, provided the scaffold is decked and flush against the building at such level where the unenclosed perimeter exists, with no gap between the scaffold and the building greater than 3 inches (76 mm), and also provided that the scaffold is provided with netting and guardrails in accordance with Section 3314.8.

The commissioner may, based upon a written request from a registered design professional, modify the requirements for adjoining property protection required by this section, including the installation or use of alternative methods, provided such modification or alternative method meets or exceeds the level of surveying, monitoring, inspection, or protection, as applicable, afforded to the public and property by this section, and also provided the insurance requirements of Sections 103 and 105 of Title 28 of the Administrative Code are satisfied.

A request submitted under Section 3309.15 shall include:

1. Details of the modification or alternative methods to be utilized;

2. Any stipulations;

3. Demonstration that the request meets or exceeds the level of surveying, monitoring, inspection, or protection, as applicable, afforded to the public and property by this section;

4. Where applicable, a description of the practical difficulty of complying with code requirements;

5. Where applicable, a reference to the site safety monitoring program; and

6. Where such request is made because an adjoining property owner has not afforded a license in accordance with the requirements of Section 3309.2, the request shall contain a notarized letter from the owner of the property where the project is to commence, or a duly authorized representative, certifying notification has been made to seek a license in accordance with the requirements of Section 3309.1.1.

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.