Q: We have two lounges on the roof of our residential building, Hell's Kitchen, where I serve on the board. Residents use them and sometimes rent them out for private events. The building's proposal plans list maximum capacities for the lounges, but these appear to be too low – the rooms have double doors and double exits to allow for easy evacuation in an emergency. We were never told to put capacity limits on residents as is done in public places. How do we find out how many people can legally be in these lounges at one time?
A: For a rooftop lounge or patio to be legal, it must be listed on the building's certificate of occupancy, along with the purpose of the space, maximum number of people allowed, and load limits. You can find your building's certificate of occupancy on the Department of Buildings website under Building Information System or on DOB NOW for certificates issued from February 2021.
(If your building was built before 1938, the year New York City began requiring the certificates, you can ask the building department to make sure it's legal with a Letter of No Objection.)
The city determines maximum occupancy based on a number of factors. This includes dividing the square footage by the occupant load factor listed in Chapter 10 of the city's building code. For safety reasons, the formula typically results in a lower capacity for an attic space compared to a similar interior space. Another factor is the width of the stairs to allow for quicker exit in an emergency.
A rooftop capacity of more than 74 people will most likely require a gathering place certificate, which brings with it additional fire safety requirements and potentially higher insurance costs, said David Maggiotto, deputy press secretary for the Ministry of Construction.
It's possible that the limits listed in your bid plans are actually lower than city regulations allow. Perhaps years ago the board wanted to keep activity and noise on the roof to a minimum or avoid the costs associated with the city's meeting location requirements.
“The board has the right to be restrictive,” said Bruce Cholst, a partner who practices real estate law at Herrick in Manhattan.
If your rooftop lounge is not permitted, you can hire an architect or engineer to draw plans for the space and have them approved by the city. After construction, a new certificate of occupancy can be issued for your building, which also includes the roof lounge.
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