How is the Landmarks Law enforced?
Since July of 1998, when the Landmark Protection Bill became effective, the Commission has had the power to seek civil fines for violations of its regulations. The vast majority of these violations are heard at the Environmental Control Board, the city's main administrative court. In addition, the Commission has the power to seek criminal penalties (fines and imprisonment) and injunctive relief. In general, the Commission uses the administrative fine system to enforce the Landmarks Law.
In a nutshell, what are the Commission's regulations?
The Commission preserves landmark buildings by reviewing and approving proposed alterations to the exterior of a landmarked building as well as the related features, such as fences and sidewalks. Approval must be obtained from the Commission before beginning work. Additionally, approval is required for changes to an interior if the interior is a designated interior landmark, the changes will affect the exterior of the building, or the work requires a permit from the Department of Buildings. Once the Commission has granted approval for a proposed change, a permit is issued. Finally, the owner of a landmarked building is responsible for maintaining the property in "good repair."
What happens if work is done without a permit?
The Commission issues a warning letter and, if the violation is not cured, a Notice of Violation (NOV). If the work done complies with the Commission's regulations, the Commission will officially legalize the change and retroactively issue a permit. If the work is not in compliance, the person responsible for the work is given the opportunity to modify the alteration – which might mean doing something as simple as removing a sign or as involved as designing an entirely new storefront. Efforts to remedy a violation should always be discussed with a member of the Commission's staff. Depending on the type of work done, the process of curing a violation may involve the Commission considering the matter at a public hearing. When the situation has been corrected, the Commission issues a Notice of Compliance (NOC).
How does the administrative fine system work?
There are five steps in the process:
1) The Warning Letter - In most cases, when the Commission believes that a violation has occurred, it will send a warning letter to the person responsible for the landmarked property. The letter will outline the violation and give the respondent an opportunity to comply with the regulations or appeal to the Commission to legalize the alteration in question. If the matter is resolved in a timely manner, no notice of violation and no penalty will be assessed. The warning letter constitutes the first of two so-called grace periods in which a violation can be rectified without the payment of a fine. A warning letter is not required prior to an initial notice of violation (NOV) in two cases: (1) the violation is intentional; (2) a stop-work order has been ignored.
2) The NOV - If the violation is not corrected following the warning letter, a NOV is issued. The notice sets a date for a hearing at the ECB. If the NOV recipient pleads guilty to the violation and applies to the Commission before the hearing date to cure the violation or have the alteration legalized, no fine will be imposed. This period forms the second and final grace period.
3) The Hearing - If the person receiving the NOV does not take advantage of the grace period, or wants to contest the NOV, a hearing will be held at the ECB. The person receiving the NOV is required to attend the hearing and may argue his or her case. If the court finds in favor of the defendant, no fine will be imposed. If the court finds that a violation has occurred, a civil penalty will be assessed.
4) The second NOV - The Commission may serve a second NOV for the same condition if a person has failed to cure the violation within 25 days of having been found liable at a hearing. A second NOV also may be sent if a person pled pled guilty to the initial NOV but subsequently failed to obtain a permit or do the required work. With a second NOV there are no grace periods and a fine will be imposed.
5) Subsequent NOVs - If a person fails to cure the violation even after the second NOV, the Commission may issue subsequent NOVs until the violation is cured. As is the case with the second NOV, subsequent NOVs are not accompanied by grace periods.
How is the amount of a civil fine determined?
The amount of a civil fine is dependent on the severity of the violation. The Landmarks Protection Law defines two types of violations: type A and type B.
Type A violations include serious alterations to important architectural elements, such as cornices, stoops, windows, and storefronts; additionally, construction of rooftop or backyard additions may fit into this category. First-time type A violations are punishable by a fine of up to $5,000, if a second NOV is issued, there will be a fine of up to $250 per day, with a minimum fine of $5,000.
Type B violations include all other, less serious infractions, such as painting a facade a new color, replacing a single window, or installing a light, sign, flagpole or banner. First-time Type B violations are punishable by a fine of up to $500; if a second NOV is issued, there will be a fine of up to $50 per day, with a minimum fine of $500.
Are civil fines intended as a means of raising revenue for the Commission?
No. The law seeks to deter violations of the Commission's regulations and provide an incentive to rectify violations when they occur. That is why there are two grace periods, i.e. two opportunities to cure a violation without paying a fine.
Is a landlord liable for a civil fine if a tenant violates the Commission's regulations?
Potentially. Both owner and tenant are responsible for a violation. If the tenant is the guilty party, the Commission may endeavor, where possible, to bring the action against that individual. As with most laws, however, ultimately the property owner is responsible for ensuring that his or her property complies with all landmark regulations, as well as with all building, housing, and fire codes.
What can the Commission do to stop ongoing illegal work?
The Landmarks Protection Bill authorizes the Commission to order an owner, tenant and/or contractor to immediately stop work. Violation of a Stop Work Order is punishable by a fine of up to $500 per day. Additionally, the Commission can go to civil court and seek a Temporary Restraining Order (TRO) and/or a preliminary or permanent injunction. A TRO or an injunction is a court order to stop work and/or take certain action. A person who violates a TRO or injunction is liable for contempt of court.
Is there any type of case that is still heard outside of an administrative court?
Yes. The most serious type of violation – the complete or partial demolition of a landmark without authorization – must be tried in civil court before a judge and jury. In addition, as discussed above, all injunctive actions must be brought in civil court. The Commission has the authority to try all violations in civil court but, as a practical matter, will use the administrative system for most violations.
Can there still be criminal penalties for failing to comply with Landmarks Preservation Commission regulations?
Yes. The law still allows the Commission to seek criminal fines. The fines range between $500 and $15,000 per day, depending on the violation.
How can I receive more information on the Commission's enforcement system?
Contact Lily Fan, Director of Enforcement, Landmarks Preservation Commission, 1 Centre Street 9th Floor North, New York, New York 10007-- (212) 669-7952.