The Art of the Determination

The Art of the Determination

By Brian Redlein

With summer behind us and the end-of-year rush ahead of us it’s important to take a pause to look at one of the least understood parts of the filing process:  the Determination request. Determinations, also known as recons (reconsideration) and precons (pre-consideration) in the expediting industry, are forms that request clarifications and interpretations, or in some Code instances straight variances, of the Codes and Zoning resolutions that govern our fair City.

Say a plan examiner is giving an architect a hard time about whether or not electrical closets count as zoned floor area. In almost every single instance, electrical closets are not to be deducted from zoned floor area!  However in the case of electrical riser stacks, where large bundles of conduit run electrical lines up and down the building, these can be deducted from zoned floor area as they are for all intents and purposes mechanical shafts and ergo zoned floor area exempt per ZR 12-10.  Electrical rooms with major pieces of equipment (distribution panels, backup systems, meters, transformers, etc) can also be considered mechanical space and therefore deducted.  Despite all this, your examiner doesn’t buy the argument and wants your electrical space counted as zonedfloor area, so where do you go from there?

You file a Determination form stating your case and petition to a higher power.  This is the equivalent of “escalation” when dealing with customer service issues.  CCD1 forms and ZRD1 forms are utilized for Code and Zoning Determinations respectively.  However, please note that any variance to the Zoning Resolutions is a one way direct ticket to the Board of Standards and Appeals (BSA)!  No one at DOB will ever grant a variance to issues of Zoning and the ZRD1 form doesn’t even allow the option.  So in the case of our electrical spaces, a simple ZRD1 requesting clarification on the definitions of floor area will typically suffice, provided there are decent sketches to back the claim attached to the ZRD1 form.  However to get an entire clothes closet with a lone conduit passing through it deducted from zoned floor area is a variance and good luck at BSA.

Apart from Zoning Determinations, there’s Code determinations.  A CCD1 form is used for clarifications and even variances regarding the Codes (old and new), the Multiple Dwelling Law, the Administrative Code of the City of New York, and the Rules of the City of New York (RCNY).  Mostly we use CCD1s to clarify sections of the Code to insure our applicants are in compliance with the Department’s latest thinking on a Code issue.  Rarely do we ask for a variance as in every instance one needs a very, very, very good reason in the form of a “practical difficulty” in order to get the Department to grant a variance.  Note that a variance CCD1 usually gets escalated to Technical Affairs (TA), and once at TA some CCD1s can take up to a year or more to resolve!

Important to note, is a CCD1 or ZRD1 is only as strong as the documentation attached to it.  Strong language is great, but without clear plans and diagrams explaining and building on the language the CCD1 form itself is useless.  Sometimes, that documentation can take far longer to assemble and far more capital than the CCD1 form and the language itself.  I’ve seen clients spend small fortunes providing all the addenda the City may require to grant the CCD1 approval depending on the CCD1 request.  Once approved, there are usually “conditions” that must be complied with – never expect to get a CCD1 approved without the City placing as many conditions on that approval as they possibly can, especially variance CCD1s.

So you’ve assembled your language on a CCD1/ZRD1 form and the supporting documentation is in order, so what’s next?  The entire CCD1/ZRD1 package, form plus the addenda, must be sent to DOB for review and a control number that allows each Determination to be tracked.  The forms already come in PDF format from the DOB website and they can be edited on the computer easy enough.  Your addenda however, must be no larger than 11×17 format, and then “booked in” behind the CCD1 form in Adobe Acrobat or equivalent program.  This creates one convenient CCD1 form + addenda for distribution, and the entire PDF cannot exceed 10MB. Why 10MB?  Because that’s the typical email attachment limit for DOB’s email servers.  Once everything is present and correct in the computer, begin to compose an email to the following addresses depending on what DOB jurisdiction you’re filing the Determination in:

NYC Development Hub:  DevHubDeterminations@buildings.nyc.gov

Hub Full Service:  HubFSDeterminations@buildings.nyc.gov

Construction Safety:  ccd1const-safety@buildings.nyc.gov

Bronx:  BXDeterminations@buildings.nyc.gov

Brooklyn:  BKDeterminations@buildings.nyc.gov

Manhattan:  MNDeterminations@buildings.nyc.gov

Queens:  QNDeterminations@buildings.nyc.gov

Staten Island:  SIDeterminations@buildings.nyc.gov

Note:  Email addresses current as per the September 2015 Service Update Memo

In the subject field of said email it’s important to use a standard subject line.  If a job has been filed and a CCD1 or ZRD1 needs to be approved to get out of a plan review objection, than the subject line and the CCD1 or ZRD1 file name itself should read:

<DOB application number>_<Objection Number>_Address.pdf

Pre-determinations filed to see if the City is “cool” with a proposed interpretation or Code variance (remember no zoning variances!) prior to actually filing the job should have the subject and file name:

Pred_Address.pdf.

As one final point, the quality and clarity of the language on the form and the addenda backing it up is paramount for approval.  Understand that CCD1s and ZRD1s typically start the process at DOB by being reviewed by the DOB’s junior technical staff, similar to how pages vet the cases to be heard by the US Supreme Court, and are signed off by DOB senior technical staff who are usually PEs and RAs.  Clear, simple, succinct language can be very useful when one is seeking a Determination approval.  The temptation is always to overstate your case and/or overcomplicate it with technical terms but some of the most successful CCD1s and ZRD1s I’ve gotten approved were basic, two paragraph requests.   In no way should you ever need to go over the two pages provided on the forms themselves.

Getting any Determination approved can take a lot of hard work and a lot of time so be patient and make the arguments as rigorous, respectful, and clear as possible.  Best of luck to everybody!