§ 489-CCCCCC — Eligibility for benefits

§ 489-cccccc. Eligibility for benefits. 1. Time limit for meeting\nminimum required expenditure. Applicants must meet the appropriate\nminimum required expenditure as provided in subdivision three of section\nfour hundred eighty-nine-bbbbbb of this title relating to the abatement\nfor which such project qualifies as follows:\n (a) No later than four years from the date of issuance of the first\nbuilding permit, or if no permit was required, the commencement of\nconstruction.\n (b) Mixed use properties. Expenditures for construction work related\nto the common areas and systems of such property shall be allocated\nunder rules promulgated by the department between the residential,\nnonresidential and retail, if any, portions of the property.\n 2. Time limit for completion of construction. Construction of\nbuildings or structures for which benefits have been approved shall be\ncompleted no later than five years from the date of issuance of the\nfirst building permit, or if no permit was required, the commencement of\nconstruction. Failure to meet this requirement shall result in\ntermination of any inflation protection provided under subdivision three\nof section four hundred eighty-nine-bbbbbb of this title for any tax\nyear that begins following the date by which completion of construction\nis required under this paragraph.\n 3. Non-permissible uses. To be eligible for benefits, the property may\nnot be used for a non-permissible purpose. Accordingly, no abatement\nbenefits under this title shall be granted for work to be performed on\nproperty to be used for the following purposes:\n (a) Residential. No abatement benefits under this title shall be\ngranted for construction work for residential purposes, or for work on a\nstructure or building where twenty percent or more of the total rentable\nsquare footage of such property is or will be dedicated to residential\npurposes, provided however that where less than five percent of a\nproperty's rentable square footage is or will be dedicated to\nresidential purposes, that use shall be considered de minimus and shall\nnot be considered in determining benefits under this title.\n (i) For purposes of this paragraph, "property" means the real property\ncontained by an individual tax lot.\n (ii) Notwithstanding subparagraph (i) of this paragraph, where a\nbuilding or structure is owned in condominium form, and an application\nfor benefits under this title includes more than one property in the\nsame condominium, then for purposes of this paragraph, the five percent\nand twenty percent of the rentable square footage shall be determined\nbased on the aggregate usage of all such properties.\n (iii) Hotel uses, as described in subdivision four of this section,\nshall not be considered residential.\n (b) Utility property. No abatement benefits under this title shall be\nprovided for utility property.\n (c) Restricted activity. No benefits pursuant to this title shall be\ngranted for construction work on property any part of which is to be\nused for a restricted activity.\n (d) Self-storage facilities. For purposes of this title, "self-storage\nfacility" shall mean any real property or a portion thereof that is\ndesigned and used for the purpose of occupying storage space by\noccupants who are to have access thereto for the purpose of storing and\nremoving personal property, pursuant to subdivision one of section one\nhundred eighty-two of the lien law. No benefits shall be granted\npursuant to this title for construction work on real property where any\nportion of such property is to be used as a self-storage facility.\n (e) Parking facility. No benefits shall be granted pursuant to this\ntitle for construction work on real property where any portion of such\nproperty is to be used as a parking facility, except where a parking\nfacility is associated with residential construction work on a separate\ntax lot, as described in rules of the commissioner, and such residential\nconstruction work is subject to financial assistance from the local\nhousing agency of a city that has enacted a local law pursuant to this\ntitle. For the purposes of this paragraph, the term "financial\nassistance" means loans, grants, tax credits, tax exemptions, tax\nabatements, subsidies, mortgages, debt forgiveness, and land conveyances\nfor less than appraised value provided in accordance with a regulatory\nagreement entered into with such local housing agency, except that\n"financial assistance" shall not include as-of-right assistance or\nbenefits. For the purposes of this title, "parking facility" means any\nreal property or portion thereof in a city on which exists a facility\noperated in a manner that requires a license for the operation of a\ngarage or parking lot issued by the consumer and worker protection\nagency of such city.\n (f) Storage warehouse. No benefits shall be granted pursuant to this\ntitle for construction work on real property where any portion of such\nproperty is to be used as a storage warehouse. For the purposes of this\ntitle, "storage warehouse" means any real property or portion thereof in\na city on which exists a building or structure which a consumer's\nhousehold goods are received for storage for compensation, except ware-\nhouses in which such goods are stored by or on behalf of a merchant for\nresale or other use in the course of the merchant's business, operated\nin a manner that requires a license for the operation of a storage ware-\nhouse issued by the consumer and worker protection agency of such city.\n 4. Hotel uses. Benefits shall be available for commercial construction\nwork or renovation construction work on a building or structure for the\nproperty's square footage used to provide lodging and support services\nfor transient guests, provided the applicant is not otherwise\ndisqualified pursuant to paragraph (c) of subdivision five of this\nsection, or section four hundred eighty-nine-eeeeee or four hundred\neighty-nine-iiiiii of this title.\n 5. Filing requirements. (a) Time to file. (i) Preliminary application.\n(A) Building permit. No benefits pursuant to this title shall be granted\nfor any construction work unless the applicant filed a preliminary\napplication for such benefits on or before the date of issuance of the\nfirst building permit for such work. This requirement may be satisfied\nwhere the applicant's architect, contractor or other representative\nauthorized to file the application for such building permit files with\nthe department on behalf of the applicant a preliminary application\ncontaining such information as the department shall prescribe by rule.\n (B) No building permit required. Where construction work does not\nrequire a building permit, a notarized letter from the project's\narchitect or engineer notifying the department of this fact shall be\nfiled within thirty calendar days of the commencement of construction.\nIn such circumstance, such letter shall also satisfy the requirement of\na preliminary application if the letter contains all of the information\nrequired for a preliminary application under rules prescribed by the\ndepartment.\n (ii) Final application. Applicants shall file a final application for\nbenefits no later than one year from the date of issuance of the first\nbuilding permit for construction work, or, where construction work does\nnot require a building permit, no later than one year from the date of\ncommencement of construction. Abatement benefits shall not be granted\nuntil the applicant files the final application. If the final\napplication is not filed within such one year period, abatement benefits\nshall not be granted until such application is filed, and the department\nmay delay the granting of such benefits, at the department's discretion,\nto investigate the reason for the late filing.\n (iii) Notwithstanding any provision of law to the contrary, the time\nlimit to file a final application for benefits as specified in\nsubparagraph (ii) of this paragraph shall not apply to brand-new\nconstruction from the ground up located on property purchased from the\ncity of New York where such property which is the site of the new\nconstruction was purchased from the city of New York for the purposes of\nan eligible development pursuant to this article and where the sales\nagreement with the city of New York for such property includes a\nrestriction preventing the sale or transfer of such property for a\nperiod of five years or more and where the first valuation and\nassessment for the purposes of property taxes occurred within that\nperiod of restriction from sale, provided the project meets the other\nrequirements of this title.\n (b) Who may file for benefits. An applicant shall be:\n (i) obligated to pay real property tax on the property, either by\nvirtue of ownership or contract; or\n (ii) the record owner or lessee of property that is exempt from real\nproperty taxation who has entered into an agreement to sell or lease\nsuch property to another person. Such applicant shall be a co-applicant\nwith such owner or lessee.\n (c) Applicant affidavit. No benefits pursuant to this title shall be\ngranted for any construction work unless the applicant provides,\ntogether with the final application, an affidavit setting forth the\nfollowing information:\n (i) a statement that within the seven years immediately preceding the\ndate of the preliminary application for benefits, neither the applicant,\nnor any person owning a substantial interest in the property as defined\nin subparagraph (iii) of this paragraph, nor any officer, director or\ngeneral partner of the applicant or such person was finally adjudicated\nby a court of competent jurisdiction to have violated section two\nhundred thirty-five of the real property law or any section of article\none hundred fifty of the penal law or any similar arson law of another\nstate with respect to any building, or finally adjudicated by a\ncompetent authority, agency, or a court of competent jurisdiction to\nhave violated any state, city, or municipal business regulations or\nordinances related to payment of taxes, payment of wages, or fraudulent\nrepresentation to governmental entities, or was an officer, director or\ngeneral partner of a person at the time such person was finally\nadjudicated to have violated such state, city, or municipal laws,\nbusiness regulations, and ordinances related to payment of taxes,\npayment of wages, or fraudulent representation to governmental entities;\nand\n (ii) a statement setting forth any pending charges alleging violation\nof section two hundred thirty-five of the real property law or any\nsection of article one hundred fifty of the penal law or any similar\narson law of another jurisdiction with respect to any building and\npending charges alleging violation of state, city, or municipal business\nregulations or ordinances related to payment of taxes, payment of wages,\nor fraudulent representation to governmental entities by the applicant\nor any person owning a substantial interest in the property as defined\nin subparagraph (iii) of this paragraph, or any officer, director or\ngeneral partner of the applicant or such person.\n (iii) "Substantial interest" as used in this subdivision shall mean\nownership and control of an interest of ten percent or more in a\nproperty or any person owning a property.\n (iv) If any person described in the statement required by subparagraph\n(ii) of this paragraph is finally adjudicated by a court of competent\njurisdiction to be guilty of any charge listed in such statement, the\nrecipient shall cease to be eligible for benefits pursuant to this title\nand shall pay with interest any taxes for which an abatement was claimed\npursuant to this title.\n 6. Requirement to file income and expense statements. No benefits\npursuant to this title shall be granted for any property in a city that\nrequires income and expense statements to be filed for income producing\nproperty, unless income and expense statements are filed for the\nproperty with respect to the tax year as to which the assessment roll\ndescribed in paragraph (b) of subdivision two of section four hundred\neighty-nine-bbbbbb of this title applies, and all subsequent tax years\nup to and including the tax year on which the assessment roll described\nin paragraph (c) of subdivision two of section four hundred\neighty-nine-bbbbbb of this title applies.\n 7. Co-application with public entity. A co-applicant with a public\nentity may be eligible for abatement benefits, provided that for any\nperiod for which the property is exempt from real property tax because\nit is owned or controlled by a public entity, no benefits shall be\navailable to such recipient under this title. Such recipient may receive\nbenefits under this title when the property is no longer eligible for an\nexemption as follows: (a) No benefits under this title shall be provided\nduring the period of exemption; (b) during such period of exemption, the\nyears of the benefit period applicable to the project provided in\nsubdivision three of section four hundred eighty-nine-bbbbbb of this\ntitle shall not be tolled, but shall run in accordance with the\napplicable schedule provided therein; and (c) the recipient shall,\nstarting with the date the exemption ceases, and continuing until the\nabatement benefit period expires, receive the abatement benefits to\nwhich such recipient is entitled in the tax year that corresponds to the\nyear of the benefit period provided in subdivision three of section four\nhundred eighty-nine-bbbbbb of this title.\n