Registration as an IMD shall be required when a Building, structure or portion thereof meets the criteria for an IMD set forth in § 281 of Art. 7-C and these rules.
(a) Definitions. For the purposes of this section, the following definitions apply:
(1) Building.
(i) As defined in § 12-10 of the Zoning Resolution, a Building is any structure which:
(A) is permanently affixed to the land;
(B) has one or more floors and a roof; and
(C) is bounded by either open area or the lot lines of a zoning lot.
(ii) A Building may be a row of structures, and have one (1) or more structures on a single zoning lot.
(iii) In deciding whether a structure is a single Building, as distinguished from more than one (1) Building for purposes of IMD determination, the Loft Board shall employ the definition set forth above, and consider, among other things, the following factors:
(A) whether the structure is under common ownership;
(B) whether contiguous portions of the structure within the same zoning lot are separated by individual load-bearing walls, without openings for the full length of their contiguity, as distinguished from non-loadbearing partitions;
(C) whether the structure has been operated as a single entity, having one (1) or more of the following:
(a) a common boiler;
(b) a common sprinkler system;
(c) internal passageways;
(d) common fire escapes; or
(e) other indicia of operation as a single entity.
(D) whether the Owner or Responsible Party or a predecessor has at any time represented in Applications or other official papers that the structure was a single Building;
(E) whether a single certificate of occupancy has been requested or issued for the structure; and
(F) the pattern of usage of the Building during the applicable qualifying window periods: (i) from April 1, 1980, to December 1, 1981, for Buildings seeking coverage under Art. 7-C pursuant to MDL § 281(1), (ii) from April 1, 1980 to May 1, 1987, for Buildings seeking coverage under Art. 7-C pursuant to MDL § 281(4), (iii) for twelve consecutive Months during the period commencing January 1, 2008 and ending December 31, 2009, for Buildings seeking coverage under Art. 7-C pursuant to MDL § 281(5), or (iv) for twelve consecutive Months during the period commencing January 1, 2015 and ending December 31, 2016, for Buildings seeking coverage under Art. 7-C pursuant to MDL § 281(6).
(2) Residential Unit.
(i) In order for a Residential Unit to be deemed an IMD unit qualifying for coverage under Art. 7-C, the unit must:
(A) be the residence or home of a Family that is Living Independently;
(B) be located in a Building, a portion of which was occupied at any time for manufacturing, commercial or warehouse purposes;
(C) lack a residential certificate of occupancy issued pursuant to MDL § 301, as further delineated in 29 RCNY § 2-08(b);
(D) except as set forth below in 29 RCNY §§ 2-08(a)(2)(ii), and (iii), be located in a geographical area in which the Zoning Resolution permits Residential Use as of Right or in which the residential use may become a use as of right as a result of approval of a Grandfathering application, in accordance with MDL §§ 281(2)(i), or (iv); or is located in a Study Area designated by the Zoning Resolution for possible rezoning to permit residential use, in accordance with MDL § 281(2)(iii);
(E) be located in a Building that is not municipally owned; and
(F) except as set forth below in 29 RCNY §§ 2-08(a)(2)(ii), and (iii), be occupied by a Family Living Independently for residential purposes on December 1, 1981, since April 1, 1980 for coverage under § 281(1).
(ii) In addition to the criteria set forth in subparagraph (i) of 29 RCNY § 2-08(a)(2), in order for a Residential Unit to qualify for coverage under Art. 7-C pursuant to MDL § 281(4), such residence or unit must have been occupied by a Family Living Independently for residential purposes on May 1, 1987, since December 1, 1981, and occupied for residential purposes since April 1, 1980, regardless of whether the Building is located in a geographical area in which the Zoning Resolution permits Residential Use as of Right, or through Grandfathering, or because the Building is located in a Study Area.
(iii) In addition to the criteria set forth in subparagraph (i) of this paragraph, in order for a Residential Unit to qualify for coverage under Art. 7-C pursuant to MDL § 281(5), such residence or unit must have been occupied by a Family Living Independently for residential purposes during a period of twelve consecutive Months between January 1, 2008 through December 31, 2009, as further delineated in 29 RCNY § 2-08(c)(3) and (c)(4), regardless of whether the Building is geographically located in an area in which the Zoning Resolution permits residential use. In addition to the criteria set forth in clauses (A), (B), (C), and (E) of 29 RCNY § 2-08(a)(2)(i), in order for a Residential Unit to qualify as an IMD unit for purposes of coverage under Art. 7-C pursuant to MDL § 281(5), such residence or home must:
(A) not be located in a cellar as defined in MDL § 4(37), as an enclosed space having more than one-half of its height below the curb level; except that where every part of the Building is set back more than twenty-five feet from a street line, the height is to be measured from the adjoining grade elevations calculated from final grade elevations taken at intervals of ten feet around the exterior walls of the Building. A cellar will not be counted as a story;
(B) have a means of access from a street or public area, such as a public hallway, elevator or public stairway, and the unit must not require passage through another residence, or unit to obtain access;
(C) Reserved;
(D) contain at least four hundred (400) square feet in area;
(E) not be located in an IBZ, as such term is defined in Chapter 6-D of Title 22 of the New York City Administrative Code, except for Buildings located in the:
(a) Williamsburg/Greenpoint IBZ;
(b) North Brooklyn IBZ
(1) unless the Building is in a district zoned M3 as such district is described in the Zoning Resolution of the City of New York in effect at the time the Application for registration as an IMD or for coverage of Residential Units is filed; and
(2) if the application for registration as an IMD or for coverage of Residential Units which were occupied for residential purposes as the residence or home of any three or more families Living Independently pursuant to MDL § 281(5) is filed with the Loft Board on or before December 31, 2023, which is nine (9) months after the promulgation of all the rules necessary to implement the provisions of Chapter 41 of the Laws of 2019.
(c) Long Island City IBZ, provided that the Residential Units meet the qualifying criteria set forth above and the Buildings are located in the following area of the Long Island City IBZ:
(1) have frontage on either side of 47th Avenue,
(2) be located north of 47th Avenue and south of Skillman Avenue, or
(3) be located north of 44th Drive, south of Queens Plaza north, and west of 23rd Street; and
(F) not be located in the same Building that contained, as of June 21, 2010, and continuing at the time of the submission of an Application for coverage by any party, a use in legal operation actively and currently pursued that is determined by the Loft Board to be inherently incompatible with residential use by creating an actual risk of harm that cannot be reasonably mitigated, as defined in 29 RCNY § 2-08(k).
(iv) In addition to the criteria set forth in subparagraph (i) of this paragraph, in order for a Residential Unit to qualify for coverage under Art. 7-C pursuant to MDL § 281(6), such residence or unit must have been occupied by a Family Living Independently for residential purposes during a period of twelve consecutive Months between January 1, 2015 through December 31, 2016, as further delineated in 29 RCNY § 2-08(c)(5) and (c)(6), regardless of whether the Building is geographically located in an area in which the Zoning Resolution permits residential use. In addition to the criteria set forth in clauses (A), (B), (C), and (E) of this subparagraph, in order for a Residential Unit to qualify as an IMD unit for purposes of coverage under Art. 7-C pursuant to MDL § 281(6), such residence or home must:
(A) not be located in a cellar, defined in MDL § 4(37) as an enclosed space having more than one-half of its height below the curb level; except that where every part of the Building is set back more than twenty-five feet from a street line, the height must be measured from the adjoining grade elevations calculated from final grade elevations taken at intervals of ten feet around the exterior walls of the Building. A cellar shall not be counted as a story;
(B) have a means of access from a street or public area, such as a public hallway, elevator or public stairway, and the unit must not require passage through another residential unit to obtain access;
(C) contain at least four hundred (400) square feet in area;
(D) not be located in an IBZ, as such term is defined in Chapter 6-D of Title 22 of the New York City Administrative Code, except for Buildings located in the:
(a) Williamsburg/Greenpoint IBZ;
(b) North Brooklyn IBZ
(1) unless the Building is in a district zoned M3 as such district is described in the New York City Zoning Resolution in effect at the time the Application for registration as an IMD or for coverage of Residential Units is filed; and
(2) if the application for registration as an IMD or for coverage of Residential Units which were occupied for residential purposes as the residence or home of any three or more families Living Independently pursuant to MDL § 281(6) is filed with the Loft Board on or before December 31, 2023, which is nine (9) months after the promulgation of all the rules necessary to implement the provisions of Chapter 41 of the Laws of 2019.
(c) Long Island City IBZ, provided that the Residential Units meet the qualifying criteria set forth above and the Building is located in the following area of the Long Island City IBZ:
(1) have frontage on either side of 47th Avenue,
(2) be located north of 47th Avenue and south of Skillman Avenue, or
(3) be located north of 44th Drive, south of Queens Plaza north, and west of 23rd Street; and
(E) not be located in the same Building that contained, as of June 25, 2019, and continuing at the time of the submission of an Application for coverage by any party, a use in legal operation actively and currently pursued that is determined by the Loft Board to be inherently incompatible with residential use by creating an actual risk of harm that cannot be reasonably mitigated, as defined in 29 RCNY § 2-08(k).
(b) Certificate of occupancy.
(1) Registration as an IMD shall not be required of any Building, structure or portion thereof for which a final residential certificate of occupancy was issued pursuant to MDL § 301 before:
(i) June 21, 1982, for Buildings, structures, or portions thereof seeking coverage under Art. 7-C solely pursuant to MDL § 281(1);
(ii) July 27, 1987, for Buildings, structures or portions thereof seeking coverage under Art. 7-C solely pursuant to MDL § 281(4);
(iii) June 21, 2010, for Buildings, structures or portions thereof seeking coverage under Art. 7-C pursuant to MDL § 281(5); or
(iv) June 25, 2019, for Buildings, structures or portions thereof seeking coverage under Art. 7-C pursuant to MDL § 281(6).
Such units shall be exempt from Art. 7-C coverage unless the residential certificate of occupancy is revoked.
(2) Registration as an IMD with the Loft Board shall be required of:
(i) Any Building, structure, or portion thereof, which otherwise meets the criteria for an IMD set forth in:
(A) MDL § 281(1), and these rules, for all residentially occupied units which lacked a final residential certificate of occupancy issued pursuant to § 301 of the MDL before June 21, 1982;
(B) MDL § 281(4), and these rules, for all residentially occupied units which lacked a final certificate of occupancy issued pursuant to § 301 of the MDL before July 27, 1987;
(C) MDL § 281(5), and these rules, for all residentially occupied units which lacked a final certificate of occupancy issued pursuant to MDL § 301, before June 21, 2010; or
(D) MDL § 281(6), and these rules, for all residentially occupied units which lacked a final certificate of occupancy issued pursuant to MDL § 301, before June 25, 2019.
Issuance of a certificate of occupancy pursuant to MDL § 301 for such units on or after June 21, 1982, July 27, 1987, June 21, 2010, or June 25, 2019 as applicable, will not be the basis for exemption from Art. 7-C coverage.
(ii) Any Building, structure, or portion thereof which meets the criteria for an IMD set forth in MDL § 281, and these rules, for all residentially occupied units which obtained a temporary residential certificate of occupancy issued pursuant to MDL § 301 before:
(A) June 21, 1982 for units covered under MDL § 281(1);
(B) July 27, 1987 for units covered under MDL § 281(4);
(C) June 21, 2010 for units covered under MDL § 281(5); or
(D) June 25, 2019, for units covered under MDL § 281(6).
Issuance of a temporary residential certificate of occupancy for such units before these dates will not be the basis for exemption from Art. 7-C coverage.
(iii) Any Building, structure or portion thereof, which otherwise meets the criteria for an IMD set forth in MDL § 281, and these rules, for all residentially occupied units for which a final certificate of occupancy issued pursuant to MDL § 301 has been revoked. The prior issuance of a final certificate of occupancy which has been revoked will not be the basis for exemption from Art. 7-C coverage.
(iv) Any Building, structure, or portion thereof that otherwise meets the criteria for an IMD set forth in MDL § 281, and these rules, and contains Residential Units which were subsequently converted to non-residential use following the applicable time period required to qualify such unit for coverage under Art. 7-C. Current commercial use or commercial use after the qualifying window period shall not be the basis for exemption from Art. 7-C coverage.
(c) Qualifying period of occupancy.
(1) Registration with the Loft Board must be required of any Building, structure or portion thereof, which otherwise meets the criteria for an IMD set forth in MDL § 281(1), and these rules, and had at least three (3) units residentially occupied on December 1, 1981, since April 1, 1980. If the Building, structure or portion thereof contained three (3) units so occupied on December 1, 1981, and on April 1, 1980, and if such residential use is permissible under the Zoning Resolution as of right, or through Grandfathering, or the units are in a Study Area, there shall be a presumption that the Building is an IMD and that such units are covered under Art. 7-C. However, if there is a determination by the Loft Board that there was a bona fide change to exclusively non-residential use in a unit between April 1, 1980, and December 1, 1981, such unit shall not be counted for purposes of determining whether the Building qualifies for coverage as an IMD pursuant to MDL § 281(1). The Occupant of any unit which changed to a bona fide exclusively non-residential use must have been a party distinct, and independent of the Owner or Responsible Party of the Building for the presumption of IMD coverage to be rebutted.
(2) Registration with the Loft Board shall also be required of any Building, structure or portion thereof, which otherwise meets the criteria for an IMD set forth in MDL § 281(4), and these rules, that had one (1) or more units residentially occupied on May 1, 1987, since December 1, 1981, that was occupied for residential purposes since April 1, 1980, regardless of whether residential use is permitted under the Zoning Resolution as of right, or through Grandfathering, or because the Building is located in a Study Area. Residential occupancy of one (1) or more units of the Building, structure or portion thereof, as described in this paragraph, on May 1, 1987, on December 1, 1981, and on April 1, 1980, shall create a presumption that the Building is an IMD or that such unit or units are covered under Art. 7-C. However, if there is a determination by the Loft Board that there was a bona fide change to exclusively non-residential use in a unit between April 1, 1980, and December 1, 1981, or between December 1, 1981 and May 1, 1987, such unit shall not be counted for purposes of determining whether the Building qualifies for coverage as an IMD pursuant to MDL § 281(4). The Occupant of any unit which changed to a bona fide exclusively non-residential use must have been a party distinct and independent of the Owner or Responsible Party of the Building for the presumption of IMD coverage to be rebutted.
(3) Registration with the Loft Board shall also be required of any Building, structure or portion thereof which otherwise meets the criteria for an IMD set forth in MDL § 281(5) and these rules that contained at least three (3) units residentially occupied by Families Living Independently from one another for a period of twelve (12) consecutive Months between January 1, 2008 through December 31, 2009, regardless of whether residential use is permitted under the Zoning Resolution. However, if there is a determination by the Loft Board that there was a bona fide change to exclusively non-residential use in a unit during such qualifying twelve (12) consecutive Month window period, such unit shall not be counted for purposes of determining whether the Building qualifies for coverage as an IMD pursuant to MDL § 281(5). The Occupant of any unit which changed to a bona fide exclusively non-residential use must have been a party distinct and independent of the Owner, Landlord or Responsible Party of the Building for the presumption of IMD coverage to be rebutted. It is not required that the units that seek coverage under MDL § 281(5) occupy their respective units during the same twelve (12) consecutive Month period.
(4) Registration with the Loft Board shall also be required of any Building, structure or portion thereof located in that certain area of Manhattan bounded on the south by West 24th Street, on the north by West 27th Street, on the east by Tenth Avenue and on the west by Eleventh Avenue, which contain at least two (2) units residentially occupied by Families Living Independently from one another for a period of twelve (12) consecutive Months between January 1, 2008 through December 31, 2009, regardless of whether residential use is permitted under the Zoning Resolution. However, if there is a determination by the Loft Board that there was a bona fide change to exclusively non-residential use in a unit during such qualifying twelve (12) consecutive Month window period, such unit shall not be counted for purposes of determining whether the Building qualifies for coverage as an IMD pursuant to MDL § 281(5). The Occupant of any unit which changed to a bona fide exclusively non-residential use must have been a party distinct and independent of the Owner, Landlord or Responsible Party of the Building for the presumption of IMD coverage to be rebutted. It is not required that the units in the same Building seeking coverage under MDL § 281(5) be occupied residentially during the same consecutive (12) Month period.
(5) Registration with the Loft Board shall also be required of any Building, structure or portion thereof which otherwise meets the criteria for an IMD set forth in MDL § 281(6) and these rules that contained at least three (3) units residentially occupied by Families Living Independently from one another for a period of twelve (12) consecutive Months between January 1, 2015 through December 31, 2016, regardless of whether residential use is permitted under the Zoning Resolution. However, if there is a determination by the Loft Board that there was a bona fide change to exclusively non-residential use in a unit during such qualifying twelve (12) consecutive Month period, such unit shall not be counted for purposes of determining whether the Building qualifies for coverage as an IMD pursuant to MDL § 281(6). The Occupant of any unit which changed to a bona fide exclusively non-residential use must have been a party distinct and independent of the Owner or Responsible Party of the Building for the presumption of IMD coverage to be rebutted. It is not required that the units seeking coverage under MDL § 281(6) be occupied residentially during the same consecutive twelve (12) Month period.
(6) Registration with the Loft Board shall also be required of any Building, structure or portion thereof located in that certain area of Manhattan bounded on the south by West 24th Street, on the north by West 27th Street, on the east by Tenth Avenue and on the west by Eleventh Avenue, which contain at least two (2) units residentially occupied by Families Living Independently from one another for a period of twelve (12) consecutive Months between January 1, 2015 through December 31, 2016, regardless of whether residential use is permitted under the Zoning Resolution. However, if there is a determination by the Loft Board that there was a bona fide change to exclusively non-residential use in a unit during such qualifying twelve (12) consecutive Month period, such unit shall not be counted for purposes of determining whether the Building qualifies for coverage as an IMD pursuant to MDL § 281(6). The Occupant of any unit which changed to a bona fide exclusively non-residential use must have been a party distinct and independent of the Owner or Responsible Party of the Building for the presumption of IMD coverage to be rebutted. It is not required that the units in the same Building seeking coverage under MDL § 281(6) be occupied residentially during the same consecutive twelve (12) Month period.
(7) None of the following vacancies of any duration will be the basis for exemption from Art. 7-C coverage:
(i) units residentially occupied on December 1, 1981, and on April 1, 1980 as set forth in 29 RCNY § 2-08(c)(1) above; or
(ii) units residentially occupied on May 1, 1987, December 1, 1981, and April 1, 1980 as set forth in 29 RCNY § 2-08(c)(2) above; or
(iii) units residentially occupied at any time before or following the qualifying twelve (12) consecutive Month window period between January 1, 2008 through December 31, 2009, as set forth in 29 RCNY § 2-08(c)(3) or (c)(4) above, nor a change or changes of residential Occupants in any such units during the intervening period(s) will be the basis for exemption from Article 7-C coverage; or
(iv) units residentially occupied at any time before or following the qualifying twelve (12) consecutive Month window period between January 1, 2015, through December 31, 2016, as set forth in 29 RCNY §2-08(c)(5) or (c)(6) above, nor a change or changes of residential Occupants in any such units during the intervening period(s) will be the basis for exemption from Art. 7-C coverage.
(d) Calculation of Residential Units.
(1) For purposes of counting Residential Units to determine whether a Building qualifies for coverage as an IMD Building and must be registered, the unit seeking coverage must meet the criteria set forth in MDL § 281 and these rules, including 29 RCNY § 2-08(a)(2)(i)(A),(B),(C) and (E).
(i) The following types of units may qualify for Art. 7-C coverage, provided that each unit satisfies the applicable criteria for coverage set forth in 29 RCNY § 2-08(a)(2), pursuant to MDL § 281(1), 281(4), 281(5) or 281(6):
(A) any Residential Unit designated as "Artist in Residence" (A.I.R.) pursuant to directives of the DOB creating such status;
(B) any Residential Unit designated as "joint living work quarters for artists" except as provided below in 29 RCNY § 2-08(d)(2)(ii);
(C) any Residential Unit occupied by a subtenant or assignee of the prime Tenant of such unit.
(ii) For a unit to qualify as a residential IMD unit, the Building in which it is located must meet the criteria of MDL §§ 281 and 281(2)(ii) in that:
(A) a portion of the Building or structure was occupied at any time for manufacturing, commercial or warehouse purposes;
(B) the Building, structure or portion thereof lacked a residential certificate of occupancy pursuant to MDL § 301 as further delineated in 29 RCNY §§ 2-08(b)(1) and (2);
(C) except as otherwise set forth in MDL §§ 281(5), 281(6) and these rules, it contained at least three (3) units residentially occupied on December 1, 1981, since April 1, 1980; and
(D) it is not municipally owned.
(2) For purposes of counting to determine whether a Building qualifies as an IMD, and is covered under Art. 7-C, Residential Units described as follows shall not be included:
(i) any units designated as residential on a final certificate of occupancy issued pursuant to MDL § 301 before:
(A) June 21, 1982 for a unit seeking coverage under MDL § 281(1);
(B) July 27, 1987 for a unit seeking coverage under MDL § 281(4);
(C) June 21, 2010 for a unit seeking coverage under MDL § 281(5); or
(D) June 25, 2019, for a unit seeking coverage under MDL § 281(6).
(ii) any units designated as "joint living work quarters for artists" on a final certificate of occupancy issued before:
(A) June 21, 1982 for a unit seeking coverage under MDL § 281(1);
(B) July 27, 1987 for a unit seeking coverage under MDL § 281(4);
(C) June 21, 2010 for a unit seeking coverage under MDL § 281(5); or
(D) June 25, 2019, for a unit seeking coverage under MDL § 281(6); and
(iii) any units designated for a commercial use with an accessory residential use on a final certificate of occupancy issued before:
(A) June 21, 1982 for a unit seeking coverage under MDL § 281(1);
(B) July 27, 1987 for a unit seeking coverage under MDL § 281(4);
(C) June 21, 2010 for a unit seeking coverage under MDL § 281(5); or
(D) June 25, 2019, for a unit seeking coverage under MDL § 281(6).
(e) Zoning regulations.
(1) Registration as an IMD shall be required of any Building, structure, or portion thereof, which meets the criteria for an IMD as set forth in MDL § 281(1), and these rules, including without limitation 29 RCNY § 2-08(a)(2). Notwithstanding the foregoing, any Building located in a zoning district designated as manufacturing in the Zoning Resolution, for which district there are no Grandfathering provisions as defined in these rules shall not qualify as an IMD unless such Buildings, structures or portions thereof otherwise meet the criteria of:
(i) MDL § 281(1), if such IMD Building is located in a Study Area, and the registration of such Building shall be required, or
(ii) MDL § 281(1), if such IMD Building also meets the requirements of MDL § 281(4), and the rules issued pursuant thereto, or
(iii) MDL § 281(5), or MDL § 281(6) and these rules. Except for a Building or structure or portion thereof which qualifies for coverage under Art. 7-C solely by reason of MDL § 281(4) , 281(5) or 281(6), the zoning regulations, and the Grandfathering provisions for the district in which a Building or structure is located determine whether and when the Owner or Responsible Party of such Building, which otherwise meets the criteria for an IMD set forth in MDL § 281, and these rules issued pursuant thereto, is mandated to meet the compliance requirements for legalization set forth in MDL § 284(1).
(2) Any Building, structure or portion thereof, which otherwise meets the criteria for an IMD set forth in MDL § 281(1) and these rules, and which is located in an area which permits Residential Use as of Right, shall be obligated to meet the compliance requirements for legalization by the dates designated in MDL § 284(1), except as provided in 29 RCNY §§ 2-08(e)(4)(i), and (iii), and as further delineated in 29 RCNY § 2-01(a).
(3) Any IMD unit designated as "joint living work quarters for artists" in a zoning district which does not otherwise permit Residential Use as of Right and which is currently occupied by a resident or residents who cannot qualify as certified artists, as defined in § 276 of Art. 7-B of the MDL, shall qualify for Art. 7-C coverage if the Building in which such unit is contained otherwise meets the criteria for an IMD set forth in MDL § 281, and these rules. The non-artist status of the current Occupant shall not be the basis for exemption from Art. 7-C coverage. At the time of issuance of the final certificate of occupancy, the Occupant of such a unit must be in compliance with the Zoning Resolution, or the unit must be vacant.
(4) Legalization compliance timetable.
(i) For any Building, structure or portion thereof, which contains fewer than three (3) Residential Units as of right and one (1) or more Residential Units eligible for coverage by employing one of the Grandfathering procedures set forth in MDL § 281(2)(i) or (iv), the timing of the compliance requirements of MDL § 284(1) shall commence upon approval of the Grandfathering application of the unit which becomes the third eligible Residential Unit for purposes of calculation of Residential Units qualifying the Building as an IMD.
(ii) For any registered Building in the category described in 29 RCNY § 2-08(e)(4)(i), for which denial of a Grandfathering application reduces the number of qualifying Residential Units below three (3), IMD status for such Building expires and the other Residential Units in such Building cease to be covered by Art. 7-C, unless the Building qualifies for coverage under Art. 7-C pursuant to MDL §§§ 281(4), (5) or (6) and these rules.
(iii) Any Building, structure or portion thereof which contains three (3) or more Residential Units as of right, and one (1) or more additional units eligible for coverage by employing one of the Grandfathering provisions of MDL §§ 281(2)(i) or (iv), shall be obligated to meet the compliance requirements for legalization by the dates designated in MDL § 284(1), as further delineated in 29 RCNY § 2-01(a), for such as of right Residential Units. The timing of the compliance requirements for the other eligible units shall commence as follows:
(A) Where an application for Grandfathering for such unit is made pursuant to one of the procedures designated as a Minor Modification or Administrative Certification in MDL § 281(2)(i), upon a determination of residential occupancy on the date designated in the particular Grandfathering provision of the Zoning Resolution;
(B) Where an application for Grandfathering for such unit is made pursuant to a Special Permit Application as designated in MDL § 281(2)(iv), upon the granting of such Special Permit.
(iv) For any unit eligible for coverage by employment of one of the Grandfathering procedures set forth in MDL §§ 281(2)(i) or (iv), the final denial of a Grandfathering application or the failure to apply for Grandfathering within the time period specified in the Zoning Resolution will terminate coverage for such unit unless such unit qualifies for coverage under Art. 7-C pursuant to MDL § 281(4), MDL § 281(5), or MDL § 281(6).
(v) For any Building, structure or portion thereof, which otherwise meets the criteria for an IMD set forth in MDL § 281(1) and these rules, but is located in an area designated by the Zoning Resolution as a Study Area, the timing of the compliance requirements of MDL § 284(1) shall commence upon rezoning of such Study Area to permit Residential Use as of Right. If the rezoning permits residential use only through Grandfathering procedures, the timing of the compliance requirements of MDL § 284(1) and the rules issued pursuant thereto shall commence upon the approval of the Grandfathering application of the unit which becomes the third eligible Residential Unit for purposes of calculation of units qualifying the Building as an IMD. For any registered Building in a Study Area, for which the City Planning Commission approved neither rezoning nor Grandfathering by December 31, 1983, IMD status for such Building expires and all of the units in such Building cease to be covered by Art. 7-C, unless there is a recommended extension of such deadline by the City Planning Commission. If any authority having jurisdiction disapproves rezoning for residential use or Grandfathering, or the extension of such deadline, IMD status for such Building expires and all the units in such Building cease to be covered by Art. 7-C. Notwithstanding the foregoing, any Building, structure or portion thereof which ceased to be covered under Art. 7-C as a result of the failure to rezone the Study Area, permit Grandfathering or to extend the deadlines as set forth in the foregoing paragraph shall be covered by Art. 7-C if it meets the criteria of MDL § 281(4), MDL § 281(5), or MDL § 281(6).
(vi) For any Building, structure or portion thereof that meets the criteria for an IMD set forth in MDL § 281(5) and these rules, the timing of the code-compliance deadlines are set forth in MDL § 284(1)(vi) and 29 RCNY § 2-01(a)(9), (10), (11) and (12).
(vii) For any Building, structure or portion thereof that meets the criteria for an IMD set forth in MDL § 281(6) and these rules, the timing of the code-compliance deadlines are set forth in MDL § 284(1)(vii) and 29 RCNY § 2-01(a)(13).
(viii) For any Building, structure or portion thereof registered pursuant to MDL § 281(5) or MDL § 281(6) for which there is a revocation of IMD status of one (1) or more units in the Building by the Executive Director as a result of a determination that such unit(s) did not meet the qualifying criteria set forth in 29 RCNY § 2-08(a)(2)(i)(A),(B),(C) and (E), and such revocation reduces the number of qualifying Residential Units below three (3) or two (2), with respect to an IMD Building located in the geographic area described in 29 RCNY § 2-08(c)(4) or (c)(6), the IMD status for the entire such Building shall expire and each of the units in the Building shall be deemed to be "non-covered units." As set forth below, Occupants of non-covered units are not entitled to the protections of Art. 7-C. Residential occupancy of a non-covered unit shall not be permitted in the Building until a final certificate of occupancy that designates the non-covered unit as residential is obtained.
(f) Municipally owned Buildings.
(1) Any Building, structure or portion thereof, which otherwise meets the criteria for an IMD as set forth in MDL § 281 and these rules, but is municipally owned, shall be exempt from coverage under Art. 7-C.
(2) Any Building, structure or portion thereof, which otherwise meets the criteria for an IMD as set forth in MDL § 281(1), 281(4), 281(5), or 281(6) and these rules, formerly municipally owned, but for which title passed to a private Owner, shall be required to register as an IMD and shall not be exempt from coverage under Art. 7-C. The former ownership by the municipality shall not be the basis for exemption from Art. 7-C coverage.
(g) Accreted and additional units.
(1) (i) In a Building, structure or portion thereof which meets the criteria of MDL §§ 281(1) and 281(2), or MDL § 281(4), and these rules, thereby qualifying as an IMD Building, the Occupant or Occupants of any additional unit residentially occupied for the first time after April 1, 1980 but before April 1,1981 in such IMD Building may also be covered under Art. 7-C pursuant to MDL § 281(3). In order to qualify for coverage pursuant to MDL § 281(3), the occupancy of such unit must be permissible under the Zoning Resolution. For purposes of 29 RCNY § 2-08(g), occupancy of such additional unit(s) shall be deemed permissible if:
(A) the unit is located in a zoning district where Residential Use as of Right is permitted under the Zoning Resolution; or
(B) the unit is designated as "joint living work quarters for artist" in a zoning district which does not otherwise permit Residential Use as of Right, regardless of whether the Occupant or Occupants qualify as "certified artists" as defined in § 12-10 of the Zoning Resolution; or
(C) the unit can qualify as having a legal residential use pursuant to one of the Grandfathering provisions of the Zoning Resolution; or
(D) the unit is in a Study Area for which the City Planning Commission has approved either rezoning for residential use or Grandfathering by December 31, 1983.
(ii) In a Building, structure, or portion thereof that meets the criteria of MDL §§ 281(1) and 281(2), or MDL § 281(4), and these rules, thereby qualifying as an IMD Building, the Occupant or Occupants of any additional unit residentially occupied during a period of twelve consecutive Months between January 1, 2008 through December 31, 2009, in the IMD Building may also be covered under Art. 7-C provided that such additional unit meets the criteria set forth in MDL § 281(5) and as further delineated in these rules, including 29 RCNY § 2-08(a)(2)(i)(A), (B), (C) and (E).
(iii) In a Building, structure, or portion thereof that meets the criteria of MDL §§ 281(1) and 281(2), or 281(4), or MDL § 281(5), and these rules, thereby qualifying as an IMD Building, the Occupant or Occupants of any additional unit residentially occupied during a period of twelve consecutive Months between January 1, 2015 through December 31, 2016, in the IMD Building may also be covered under Art. 7-C provided that such additional unit meets the criteria set forth in MDL § 281(6) and as further delineated in these rules, including 29 RCNY § 2-08(a)(2)(i)(A), (B), (C) and (E).
(2) Registration of such accreted and additional units as part of the IMD shall be required for all units that qualify for Art. 7-C coverage.
(3) Where a Building, structure or portion thereof meets the criteria of MDL § 281, and these rules, it must be registered with the Loft Board. A decrease in the number of Residential Units in a Building that qualifies for coverage pursuant to MDL § 281 to fewer than three (3) or two (2), as permitted in accordance with the terms and provisions set forth in MDL § 281(5), or 281(6) and these rules, after the applicable time period required for residential occupancy pursuant to MDL § 281, will not be the basis for exemption from Art. 7-C coverage. In such instances, the Owner, Landlord, or Responsible Party of the Building, structure or portion thereof shall be required to obtain a residential certificate of occupancy, unless the units are duly converted into a non-residential use in accordance with the terms and provisions of the MDL, these rules and all applicable law. However, the discontinuance of residential occupancy:
(i) after December 1, 1981 but before May 1, 1987 of a unit which qualifies for coverage under Art. 7-C solely by reason of MDL § 281(4), or
(ii) during the twelve (12) Month period required for coverage pursuant to MDL § 281(5), or
(iii) during the twelve (12) Month period required for coverage pursuant to MDL § 281(6)
will result in such unit being exempt from Art. 7-C coverage. Solely with respect to such instances, the remaining residentially occupied units, limited to units in existence during the qualifying period of occupancy, set forth in MDL §§ 281(1)(iii), 281(4), 281(5) or 281(6), as further delineated in 29 RCNY § 2-08(c), and accreted units as defined in MDL § 281(3) and 29 RCNY § 2-08(g)(1), shall be entitled to the protections of Art. 7-C, including the legalization requirements of MDL § 284(1).
(h) Non-covered Units in an IMD.
(1) Any unit that does not meet the statutory requirements for coverage set forth in MDL § 281, as further detailed in these rules, is not covered by Art. 7-C. Any space in an IMD which was not occupied residentially during a window period set forth in MDL § 281 and is subsequently converted to residential use, is not covered by Art. 7-C, and the Owner, Landlord or Responsible Party of such unit must obtain a residential certificate of occupancy before permitting the commencement of such occupancy.
(2) Notwithstanding the foregoing, if a Building qualifies as an IMD, any unit first occupied residentially on or after April 1, 1981, is not covered under Art. 7-C, unless such unit meets the criteria qualifying for an IMD pursuant to MDL § 281(5) or 281(6), as set forth in 29 RCNY § 2-08(a)(2)(iii).
(i) De facto multiple dwellings. Registration as an IMD with the Loft Board shall be required of any Building, structure or portion thereof judicially determined to be a de facto multiple dwelling, which otherwise meets the criteria for an IMD, as set forth in MDL § 281 and these rules. Such prior judicial determination will not be the basis for exemption from Art. 7-C coverage.
(j) The term IMD as used in MDL § 281(5) or 281(6) shall not include any Building in which an inherently incompatible use as described in subsection (k) of this section is in legal operation and being actively and currently pursued in any unit other than a Residential Unit of the Building. For Buildings in which coverage is claimed under MDL § 281(5), the term "actively and currently pursued" refers to commercial, manufacturing or industrial use being conducted in the Building on June 21, 2010 and continuing at the time of the submission of an Application for coverage by any party. For Buildings in which coverage is claimed under MDL § 281(6), the term "actively and currently pursued" refers to commercial, manufacturing or industrial use being conducted in the Building on June 25, 2019 and continuing at the time of the submission of an Application for coverage. A unit eligible for coverage pursuant to MDL § 281(5) or 281(6), which is located in a Building registered as an IMD under MDL §§ 281(1) or (4), shall not be excluded from Art. 7-C coverage on the basis that any prohibited activity in Use Group eighteen (18) existed in the Building.
(k) Uses in Use Groups Inherently Incompatible With Residential Use. Pursuant to MDL § 281(5) or 281(6), a use that falls within Use Group 18, as defined in Article III Chapter 2 and Article IV Chapter 2 of the Zoning Resolution in effect on June 21, 2010 and continuing at the time of the submission of an Application for coverage by any party, that is also set forth in the Appendix to these rules, is inherently incompatible with residential use in the same Building if it:
(1) has or should have a New York State environmental rating of "A", or "B" for any process equipment requiring a New York City Department of Environmental Protection operating certificate; or
(2) is or should be required under the Community Right-to-Know Law, at Chapter 7 of Title 24 of the Administrative Code of the City of New York, to file a Risk Management Plan for Extremely Hazardous Substances; or
(3) is or should be classified as High-Hazard Group H occupancy as set forth in Section 307 of the New York City Building Code.
(l) Residential Unit. For the purposes of subsections (j) through (s), in addition to the definition of Residential Unit in 29 RCNY § 2-08(a)(2) above, a Residential Unit may contain a non-residential use that:
(1) is clearly incidental to or secondary to the residential use of the Residential Unit;
(2) is carried on within the Residential Unit, by one or more Occupants of such Residential Unit;
(3) does not use more than forty-nine (49) percent of the total floor area of a dwelling unit for the non-residential purposes; and
(4) has up to three (3) non-residential employees.
(m) Reserved.
(n) Reserved.
(o) Revocation of IMD registration. The Executive Director may, on written notice to the Owner and the Occupants, revoke the IMD registration at any time for failure to meet the requirements set forth in the provisions of MDL § 281(5) or 281(6), and this rule, where:
(1) previously undisclosed facts, or misrepresentations or false statements as to material facts in the registration Application or submitted documents regarding the information which was the basis for the Loft Board issuance of an IMD registration number are discovered, or
(2) the Loft Board issued an IMD registration number in error and conditions are such that the IMD registration number should not have been assigned. Such notice will inform the Owner of the reasons for the revocation and that the Owner has the right to present to the Executive Director or his or her representative within ten (10) Business Days of delivery of the notice by hand or fifteen (15) days of the posting of the notice by mail, information as to why the registration should not be revoked.
(p) Use after June 21, 2010 or June 25, 2019.
(1) A commercial, manufacturing or industrial tenant engaged in an inherently incompatible use as described in subdivision (k) after June 21, 2010 shall not disqualify a Building from coverage under MDL § 281(5) that otherwise qualifies for coverage.
(2) A commercial, manufacturing or industrial tenant engaged in an inherently incompatible use as described in subdivision (k) after June 25, 2019 shall not disqualify a Building from coverage under MDL § 281(6) that otherwise qualifies for coverage.
(q) Burden of proof for inherently incompatible use. For all Applications for coverage filed pursuant to 29 RCNY § 1-21, except for any unit eligible for coverage pursuant to MDL § 281(5) or 281(6) that is located in a Building registered as an IMD under MDL § 281(1) or (4), the party opposing coverage under Art. 7-C based upon the existence of an inherently incompatible use, must establish by a preponderance of the evidence the following:
(1) one (1) or more commercial, manufacturing or industrial uses;
(2) in legal operation in the non-residential units;
(3) that are inherently incompatible with residential use as defined in subdivision (k) of 29 RCNY § 2-08;
(4) that create an actual risk of harm;
(5) that cannot be reasonably mitigated;
(6) in the Building as of
(i) June 21, 2010 for Buildings in which coverage is sought under MDL § 281(5); or
(ii) June 25, 2019 for Buildings in which coverage is sought under MDL § 281(6); and
(7) continuing at the time of the submission of an Application for coverage by any party.
(r) Site visits. The Executive Director may conduct, or designate a Loft Board staff member to conduct, a site visit to the Building for which coverage under Art. 7-C of the MDL is being sought. The Owner or Responsible Party must arrange for the Executive Director or the Loft Board's staff to have access to the non-residential spaces upon reasonable notice. The Executive Director, or the Loft Board's staff, may also conduct informal conferences regarding the Owner's or Responsible Party's registration Application. The Executive Director may request additional information from the Owner or Responsible Party, Tenants or government agencies about the non-residential uses in the Building on June 21, 2010 or June 25, 2019 and continuing at the time of the submission of an Application for coverage by any party.
(s) Occupant qualified for possession of Residential Unit and protection under Art. 7-C.
(1) A Protected Occupant must be a natural person.
(2) A Prime Lessee with a lease in effect on the filing date of the Application for protected occupancy and the Prime Lessee's spouse or domestic partner is(are) the Protected Occupant(s) to the exclusion of other Occupants in the unit, regardless of when the other Occupants began occupancy.
(3) If the unit in which the individual resides is not an IMD unit at the time the individual files an Application for protected occupancy, the individual must file an Application for coverage of the unit before or simultaneously with the filing of the Application for protected occupancy.
(4) (i) If the individual used the unit as a primary residence on the effective date of the law, lack of consent of the Owner or Responsible Party does not affect the rights of the individual to protection.
(ii) If the individual became an Occupant of a unit after the effective date of the law, the Loft Board may find the individual to be a Protected Occupant only if the individual resided in the unit with the consent of the Owner or Responsible Party. Although no single factor is determinative, factors for the Loft Board to consider in determining consent include, but are not limited to:
(A) The Owner or Agent accepted rent from the Occupant;
(B) The Owner or Agent contacted the Occupant for access to the unit;
(C) The Owner or Agent listed the Occupant on Loft Board filings;
(D) Any other factor the Board deems relevant.
(5) (i) In addition to the requirements contained in paragraphs (1), (2), (3) and (4) of this subsection, the Loft Board may find an individual is a protected Occupant only if the individual uses the IMD unit as a primary residence on the filing date of the Application for protected occupancy.
(ii) In determining whether an individual uses the IMD unit as a primary residence, the Loft Board may refer to precedent from the Housing Part of the Civil Court for guidance as to the type of evidence commonly used to prove primary residence. Although no single factor is determinative, factors for the Loft Board to consider in determining whether the individual uses the IMD unit as a primary residence include, but are not limited to:
(A) Whether the individual resides in the unit;
(B) Whether the individual keeps furniture, clothing and other personal effects in the IMD unit;
(C) Whether the individual listed the IMD unit as a residential address on official documents filed with government agencies. Such documents may include, but are not limited to, a tax return, a motor vehicle registration, a driver license, or a voter registration;
(D) Whether the individual subleased the unit to another in violation of law or the Loft Board's rules; and
(E) Any other factor the Board deems relevant.
(Amended City Record 3/1/2023, eff. 3/31/2023)