When It Comes to DEP, You Can’t Be Tentative

When It Comes to DEP, You Can’t Be Tentative

By Austin Regan

Starting April 1, 2017, DEP will no longer review Site Connection Proposals when the development lot is tentative. This change will have a major impact on the planning and timing of certain new building approvals.

DOB New Building Approval requires an approved Site Connection Proposal (SD1 & 2), and the DEP approval process can take three to six months. The DEP filing requires a DOB New Building application number and submission of a survey, which often indicates a development lot that encompasses multiple tax lots.

Tax Lots and Timing

A new building typically occupies a single tax lot, but multiple tax lots may comprise that single lot during initial planning. Other times, existing tax lots are reapportioned, assigning part of one tax lot to another to allow new building construction on one of the reconfigured lots.

For various reasons, developers often file for approvals before the tax lots are merged or reapportioned.

If the new tax lot configuration has not been created, DEP requires an additional form, RP-602. The Department of Finance (DOF) issues this form to acknowledge the intent to merge or reapportion tax lots when the action has not been finalized.

Since DOB issues both approvals and permits for the new building, finalizing the tax lot typically has not been urgent—and could be delayed until project completion. Developers often wait, especially when delaying transfer of certain parcels offers advantages or outstanding taxes are owed. DOF requires that deeds are all under the same ownership and all outstanding taxes are paid.

A developer making the significant investment in a new building can clarify property ownership and make outstanding tax payments sooner, if required. For properties that will be fully merged, DOF will issue the final tax number and change the tax map after those two requirements are met.

Catch-22: Existing Buildings

The presence of existing buildings on the site where a tax lot reapportionment or subdivision is proposed complicates the situation, and the new DEP rule throws a wrench in the process. To finalize a reapportionment or subdivision, the DOF requires the same items as for a tax merger—with the addition of DOB approval.

Currently, we would present DOF with the DOB New Building Approval for lot finalization. As stated earlier, however, DOB requires an approved SD1 & 2 to issue a New Building Approval. If the lot cannot be finalized without a DOB approval and the DOB approval requires an approved SD1 & 2, which cannot be filed until the lot is finalized . . . Obviously, we have a problem.

Moving Forward

Instead of a New Building filing, other DOB filings can be used to secure approval of an improved lot reapportionment. Unfortunately, taking this route will require time, effort, and expenses that may be redundant. Perhaps some physical work—such as full or partial demolitions—will need to be performed much earlier in the process.

April 1 will be here before we know it. The proposed DEP change will have major repercussions for timely approval of certain developments currently being planned. Owner’s architects and engineers must plan accordingly.