City's Judicial Warrant for Inspections Law is upheld:
A Judicial Warrant for Inspection of Premises may be applied for in accordance with §1-21 of the City Charter. Most often, applications for such warrants are requested when a Certificate of Occupancy (C of O) has been applied for yet access to conduct the required inspection has been denied. Less than 1/10 of 1 percent of property owners deny consent for their C of O inspection. On Friday, December 23, 2011, the Appellate Division, Fourth Department, upheld the City's inspection Warrant Local Law against challenges brought by local landlords and tenants. We are hopeful that this decision will foreclose similar challenges in the lower courts and allow the warrants to be granted routinely in City Court. As far as we know, we are the first municipality in New York to adopt inspection warrant standards, and we would expect others to follow suit. This decision reinforces the city's ability to require inspections as part of our renewable C of O process.
Lead-Based Paint Poisoning Prevention Ordinance - May 2013 Code Amendment Summary:
On May 14, 2013, Rochester's City Council approved amendments to the Lead-Based Paint Poisoning Prevention Ordinance. These changes are the result of an ongoing assessment of the efficiency and effectiveness of the ordinance. After administering the lead ordinance for the past seven years and in response to recent litigation in State Supreme Court, we have identified several areas where the ordinance can be enhanced and strengthened to provide better protection of the public and more clarity for our customers. One of the areas in need of improvement is in clarifying the expectations of the ordinance for all home owners and third party lead clearance providers. Currently there is a lot of confusion due to the connection to EPA regulations and the fact that this ordinance has more restrictive requirements. These changes will accomplish the following:
Amending the definitions of Dwelling Unit & Visual Assessment - This will provide clarity for all customers to understand what areas within a structure are considered to be part of the dwelling unit for the purposes of performing the full visual assessment that's required as part of lead clearance testing.
Adding the additional EPA authorized titles for dust wipe testing - The following titles are authorized by EPA to perform lead dust wipe testing yet are not currently listed or defined in the ordinance. As such, they should be added to the ordinance:
- Certified Lead Dust Wipe Technician
- Lead Sampling Technician
Addition of the EPA Renovation, Repair & Painting Rule (RRP) - Prior to these amendments there is no reference to RRP in the ordinance. We are requiring contractors and owners who either apply for an applicable building permit or who remediate qualifying lead hazards to report that they are properly certified by EPA to do so. Adding the RRP language to both the definitions and §90-58 will ensure that they have been properly trained to perform that work in a lead safe manner.
Amending §90-56 to clarify the remedies for abating lead violations by:
- Removing the dependency on EPA for clearance standards to being self contained in §90-57 of the ordinance.
- Removing the Certification by RHA which has not been used once in the seven years of the ordinance and due to the fact that we have eliminated the overlap between our C of O and the Section 8 inspection processes.
- Removing the need for a third party lead clearance for interior deteriorated paint violations that are found in common areas. These will be visually cleared by the city inspection staff similar to the way we clear the exterior deteriorated paint violations.
Amending §90-57 to establish all of the changes listed below. These are especially important as they deal directly with issues raised by court due to the complex discrepancies between the expectations of the ordinance and the EPA standards.
- Codify the city's clearance standard and lead dust wipe testing requirements within the ordinance and without dependency on EPA.
- Codify the following items that currently are only a matter of practice as per our internal policy:
- The validation period for previously passed wipe test (3 years);
- Establishing the authority for performing audits of third party lead clearance providers;
- Establishing due process requirements for third party clearance providers who are found to be non-compliant with the expected clearance standards.
HIGH RISK STREET LISTING AREA MAP
Certificate of Occupancy - May 2013 Code Amendment Summary:
On May 14, 2013, Rochester's City Council approved amendments to the Certificate of Occupancy (C of O) legislation. These changes are the result of an ongoing assessment of the efficiency and effectiveness of the C of O program. The following amendments are in response to recent litigation and suggestion by the State Supreme Court and in response to the past six years of lead hazard violation data. These changes will accomplish the following:
- Clarifying that occupying an applicable property without a valid C of O is a violation;
- Clarify the need to apply for and obtain a C of O within 90 days prior to the expiration or termination of the current one as part of the renewal process;
- Clarify the right to seek an Inspection Warrant regardless of whether or not a required application has been received, where they are constitutionally required;
- Clarify the enforcement remedies available when a required C of O is not obtained;
- Require one and two family dwellings located in the High Risk Area where interior deteriorated paint violations are identified and corrected by application of Interim Controls, as defined in the Lead Ordinance, have their C of O renewed after three years. This section is applicable to any such C of O issued on or after January 1, 2014.
Certificate of Occupancy Requirement Chart
2013 C of O & Lead Code Amendment FAQ's
On May 14, 2013, City Council approved code amendments to the Certificate of Occupancy (C of O) legislation and the Lead-Based Paint Primary Prevention ordinance. These changes go into effect on June 1, 2013. The following questions and answers are based on these changes and are intended to provide clarity and guidance to our customers.
Questions related to the C of O changes:
#1 Section 90-16A (1) states that "No person shall permit the occupancy of a rental dwelling unless a valid certificate of occupancy is in effect for said building". Does this mean my rental units cannot be occupied while I am in the process of renewing my C of O?
A: Not necessarily. As long as the necessary renewal application is timely submitted, the necessary inspections are timely conducted, all hazards are immediately corrected and progress is continuously made for all other necessary work, the property may remain occupied throughout the process.
At any one time there are thousands of properties going through the renewal C of O process. In almost every situation, the units in these buildings are occupied during the renewal process. The new language of the code does not change our policy of working with property owners through the timely submission of their renewal application to the point of them obtaining the C of O; we will continue to work with all owners throughout that process.
#2 Can I reoccupy a property that has been vacant for a long period of time?
A: Yes, once the unit has been cleared by an inspector. We are very much aware of the potential hazards that may be associated with long standing vacant structures. We are also aware of the potential damage that can continue to occur when the structure remains vacant and the need for an owner to have someone in it sooner than later in order to protect it. The first step an owner should do in this process is apply for the necessary C of O and have the building inspected. In every such situation the inspector will work with the owner to allow occupancy when it is safe to do so, even if there are other items that need to be completed prior to the C of O being issued. The most important thing here is for the owner to demonstrate that the occupants are safe by means of an inspection.
#3 During the renewal of a C of O involving a large multiple dwelling, are all units inspected at once and do all units inspected have to pass for the C of O to be issued?
A: Yes, as long as that is convenient for the property owner and is possible to accomplish in a day's time. For inspections in multiple dwelling buildings we would inspect them at the same time depending on how many units and the owner's preference of scheduling. In larger buildings or complexes we would offer to have more than one inspector attend the inspection if the owner would prefer and as long as they have more than one person on their end that can accompany the two inspectors.
Yes. Any and all violations cited must be abated prior to the issuance of the C of O. If a property owner would like to obtain a Conditional C of O they may do so by submitting the necessary application as long as all health and safety related violations have been corrected. The Conditional C of O is good for up to six months.
#4 Under what circumstances does the amended code require a one or two family rental dwelling to renew their C of O at three years instead of the current six year period?
A: The amended code states that the C of O will expire after three years for a one or two family only if the unit was found to have interior deteriorated paint, it's located in the high risk area, the owner uses interim controls to remedy the deterioration and the C of O is issued on or after 1/1/14. Otherwise, it would renew at six years.
#5 Does this mean that if a unit is inspected in a one or two family rental dwelling and NO interior deteriorated paint is found that the C of O will continue to be valid for six years?
A: Yes. The only time the three year renewal would be applicable for a one or two family dwelling is if it met all of the listed criteria above.
#6 If my one or two family rental dwelling is required to have a three year C of O renewal and upon inspection for my renewal three years later it is not found to have interior deteriorated paint, is that C of O when issued valid for three or six years?
A: Six. Anytime a property does not meet all of the criteria above the C of O is valid for six years unless otherwise revoked.
#7 Can I request to renew my C of O while my building is vacant if it is prior to the expiration period?
A: Yes. Anyone can apply for a C of O once a structure is completely vacant for more than 60 days. This has always been the case and, in fact, the code requires it. In addition, since the inception of the lead ordinance we have allowed all owners to request a lead dust wipe test anytime a unit is vacant, so long as it hasn't had one in the last three years. So even if a unit is vacant but the entire building is not, if it is in the high risk area and the last lead dust wipe test was more than three years ago, one can be requested.
#8 What types of repairs are considered interim controls and what is the difference between those repairs and abatement?
A: Interim Controls is defined in the ordinance as "A set of measures designed to temporarily reduce human exposure or likely exposure to lead-based paint hazards. Interim Controls include, but are not limited to, repairs, painting, temporary containment and specialized cleaning". Some examples would be simply repairing or stabilizing the deteriorated paint with another coat of paint after properly removing the deteriorated portions and/or covering a window trough or well by placing a piece of metal or plastic over it.
Abatement is defined in the ordinance as "Any set of measures designed to permanently eliminate lead-based paint or lead-base paint hazards". Examples of abatement would include the replacement of a building component such as a window or door.
#9 If I have a tenant who will not consent to the required inspection, should I start an eviction proceeding?
A: No that is not necessary. Securing consent from the tenant is required for us to gain access to inspect the unit. That consent can either be secured by the property owner or manager. In the event that they chose not to secure it then the city will reach out to the occupant in our attempts to do so. As the owner of the property you have a right to enter the tenant's unit with proper notice. If you chose not to utilize that right to facilitate the necessary inspection and if the city is unsuccessful in our attempts to gain voluntary legal access, then we will follow the process of obtaining the necessary Judicial Warrant for Inspection.
The City of Rochester has been performing renewable C of O inspections since the mid 1970's; each year through the cooperation of both owners and occupants we inspect thousands of units through the C of O process. In the vast majority of these situations, the units being inspected are occupied. These inspections can be scheduled so as to not inconvenience anyone wishing to be there. They are quick and they are focused on the health and safety of the occupants. It is extremely rare for a tenant to object to an inspection; in fact in all of 2012 we did not have one new case where an inspection warrant was necessary.
#10 The revised section 90-16J states that the owner shall apply for and obtain a new C of O within 90 days prior to the expiration date. Some owners do not know when their C of O expires. Is the city going to start sending out renewal notices 6 months in advance?
A: No. The current system will not allow us to do so. An important aspect of being successful in the rental property business is knowing when your C of O expires. It's as important as forecasting and budgeting for repairs such as roof replacement and exterior painting. It also allows you the opportunity to assess the property before the expiration to ensure any and all necessary maintenance items have been taken care of. The vast majority of landlords know this and they apply that strategy to their business model. That said, our expectations are not changing here in terms of working with owners through the timely submission of their renewal application to completing the process and obtaining the C of O.
Questions related to the Lead Ordinance changes:
#11 Who must possess an EPA RRP certification?
A: EPA requires certification for all home improvement contractors, property management firms, handymen or others compensated for renovation work that involves window replacement or that disturbs more than six square feet of interior and/or more than twenty square feet of exterior paint or surface coating in pre-1978 residential housing or child occupied facilities. This EPA requirement also applies to landlords working on rental properties.
#12 What is the cost of certification?
A: Environmental Education Associates (EEA) currently has free training based on city funding for anyone who wishes to get certified. The RRP Certification class is an eight hour course. Once issued, the certificate is good for five years. You can contact EEA at 1-888-436-8338 to register.
#13 Why is the city no longer relying on EPA standards and won't it be confusing for anyone who has been trained by EPA?
A: The standards found in the lead ordinance are the same as EPA; their inclusion into our local ordinance eliminates the need to go to a different and more complex code to review them. Anyone who has been trained and certified by EPA should not have any problems understanding or applying the requirements of our local code.
#14 What is the due process afforded to a third party lead professional who is determined by the Director to be nonresponsible?
A: A nonresponsibility determination by the Director may be appealed to the Commissioner in writing within 10 days of the receipt of the determination by the Director. The Commissioner shall offer the issuer an opportunity to be heard, at which a hearing examiner appointed by the Commissioner who is not a city employee shall preside.
#15 If the final determination of a third party lead professional is that they are nonresponsible, will the city make a referral to the EPA?
A: Yes. Any final determinations in this area will be referred not only to the EPA but to the Monroe County Health Department, the City grant facilitators, the Rochester Housing Authority and the Housing Council. This information will also be posted on our web-site so as to inform anyone who may wish to do business with the contractor.
#16 The amended code requires all third party lead clearance providers perform a full visual inspection prior to conducting a lead dust wipe test. How can that be accomplished in an occupied unit with all of the obstructions?
A: This is not a new requirement; the ordinance has always required a visual inspection of a unit prior to performing a lead dust wipe test. If you do not perform a visual inspection, how would you know whether or not the unit still has deteriorated paint, paint chips or debris in the areas subject to wipe testing, which is any habitable room or space within the unit?
Section 90-55 requires that every inspection the city performs includes an observation for interior deteriorated paint. It goes on further to state in the absence of an interior deteriorated paint violation, in units located in the high risk area, a lead dust wipe test will be performed. Why would the code have a more inclusive standard for visually inspecting a unit with no known lead hazards, as required by 90-55, then it does with one we know has a lead hazard? Almost 100% of the 12,000-14,000 units we inspect annually are occupied and we perform this type of inspection in every unit. Based on our own activity and the industry standard, a complete inspection of a unit (visual & wipe test) should not take any longer than an hour, and that's for an occupied unit.
#17 Won't the additional duty of adding the full visual inspection to the private clearance service raise the cost of the clearance dramatically?
A: It should not. The city has been conducting lead dust wipe tests for almost seven years now. Our cost to perform this type of inspection, including the full visual inspection and including all associated expenses, is less than $70 a unit. Although we believe there has been no increase to the job duties nor the time it takes to perform a clearance test and since the third party providers are charging between $150 and $200 per unit, it would appear as though the current fees should cover the required activity.
#18 Why is the basement and attic considered part of the dwelling unit?
A: Basements and attics are considered part of the dwelling unit if they are in fact incorporated into the unit. This is not a change to our current policy. The reason they are included is due to the fact that if these areas are integrated into the unit, then kids are likely to be playing in them and when an owner has to mitigate peeling paint in either area, we need to make sure that they did not tract the potential lead dust into the habitable spaces of the unit as a result of unsafe work practices. This is simply accomplished by the unit being wipe tested.
The only change that comes about as a result of this code section is the fact that by including the basements and attics in the visual inspection when they are incorporated in the unit we are also eliminating the need for private clearance when they are not integrated into the units and are part of a common area. This is a tremendous benefit to the landlords in that any violation of deteriorated paint in the common areas will only require visual clearance by a city inspector so it will not cost the owner money to have it cleared by a third party. Deteriorated paint in common areas will now be treated the same as that on the exterior.
#19 Will basements and attics be subject to lead dust wipe testing?
A: No. The only purpose of their inclusion when they are integrated into the unit is for the visual assessment; we are not wipe testing basements and attics and we have no expectations that third party clearance providers are doing so as well.
#20 How does this impact attics that are only accessible through a pull down stair or a door in the ceiling?
A: If the attic is only accessible from a pull down ladder and is otherwise unfinished, then it will also not have any protected covered surfaces so there would not be a potential for deteriorated paint.
#21 What is the reason why the majority of the exterior facing window component is considered interior? Also, what about the seasonal wooden storm windows, are they, too, considered interior?
A: This section in general is not new, we are applying this theory now. It all comes down to if the area where there is peeling paint that has to be corrected, what the chances are that the interior of the unit may be impacted by that activity if safe work practices are now followed. If you are repairing the exterior frame of a window, it is easy to avoid lead dust going into the unit by simply covering the window opening when you are working on the deteriorated areas. If, however, you are working on the back of the interior window sash, even though it faces the exterior or any area between the exterior storm and the interior window, then you are more likely to have lead dust going inside the unit and as such the clearance test ensures you did not compromise the safety of the occupants with unseen lead dust in doing so.
The seasonal wooden storm window would be considered a separate component and exterior because it can be easily removed and properly repaired without potentially causing lead dust to enter the unit.
#22 Can you provide an illustration detailing what portions of the window are considered to be interior for the purpose of assessing lead hazards in accordance with the city code?
A: The following three examples, a window with no storm attached, a window with a seasonal storm and a window with a triple track storm installation detail what portions of the window in the given installation are considered interior for the purpose of assessing lead hazards:
Window with no storm attached Window with a seasonal storm Window with a triple track storm installation
City amends its Certificate of Occupancy (C of O) legislation to eliminate the overlap with RHA's Section 8 Program:
The following changes to Section §90-16 of the City Code, titled "Certificates of Occupancy" became effective September 1, 2012:
The following properties are exempt from the renewable C of O requirement without the need to submit an application for the exemption:
- One and Two family dwellings owned by the Rochester Housing Authority
- One or Two family dwellings occupied by the owner
The following properties can apply for an exemption. Once approved, the exemption must be renewed every three years:
- One or Two family dwellings occupied in whole or part by the owner's parent, child, spouse or sibling
Units in a One or Two family dwelling that is occupied by an RHA Section 8 tenant can apply for a waiver from the interior portion of the inspection of that unit during the renewable C of O process. In order to qualify for the waiver, you must meet the following criteria:
- The property must be a one or two family dwelling
- The necessary C of O application must be submitted and applicable fees paid
- An inspection must be conducted of the exterior and any portion of the interior not occupied by the Section 8 tenant
- A Waiver application must be submitted along with the required RHA inspection report indicating that the unit passed an inspection within one year of that date and did not contain interior deteriorated paint. Please note that an application for a waiver will not be accepted unless it includes the required RHA report.
Certificate of Occupancy Exemption Application
Certificate of Occupancy Waiver Application (RHA Section 8)