N.Y. Comp. Codes R. & Regs. tit. 19 § 1205.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 1205.5 - Routine Cases and Alternative Compliance Cases

(a) Routine cases. A routine case is one determined by the department to involve a de minimis variance or modification of the Uniform Code that does not substantially affect the code's provisions for health, safety, and security. At the department's discretion, in making this determination the department may coordinate with the petitioner, the authority having jurisdiction, and any known interested parties.

(1) Any person aggrieved may petition the department for relief under this subdivision. The petition shall be submitted to the department on a form prescribed by the department and shall include, at a minimum, all of the following:

(i) the fee(s) specified in or determined in accordance with section 1205.6 of this Part;

(ii) a statement of the nature of the grievance and the relief sought in sufficient detail as would permit the department to make a determination on the basis of the information contained within the petition;

(iii) where necessary, construction documents (drawings and/or specifications), site plans, and descriptions of buildings and their histories; and

(iv) an explanation of the facts supporting the criteria upon which the petitioner relies as a basis for relief.

(2) Upon receipt of a petition for a routine case, the department shall review the petition for completeness to determine whether it has sufficient detail to permit the department to make a determination on the basis of the information contained within the petition.

(i) If the department deems the petition complete, the department shall consider the evidence offered, make findings of fact and conclusions of law, and render its decision in writing.

(ii) If the department deems the petition incomplete, the department shall notify the petitioner of the information required for completeness. If, after notice that the petition is incomplete, no additional information is forthcoming and the file has remained inactive for a period exceeding 90 days, the department may dismiss the matter for neglect to proceed, but without prejudice to any subsequent petition.

(3) The department shall serve a copy of the decision on the petitioner, the administrative official authorized to enforce the Uniform Code, and any other interested parties by either first-class mail or electronic mail. Unless the department receives a written objection from the petitioner or any aggrieved person within 15 days of receipt of the department's decision, the decision shall become final. A decision shall be filed, indexed, and distributed in the same manner as a decision of the boards of review. The department's timely receipt of a written objection shall cause the decision to be without force and effect, and the matter to which it pertains shall be transmitted to a board of review for proceedings de novo in accordance with section 1205.4 of this Part.

(b) Alternative compliance cases. An alternative compliance case is one in which the petitioner proposes, as an alternative to strict compliance with the design, construction, and maintenance provisions or requirements of the Uniform Code, the use of the design, construction, and maintenance provisions or requirements of a nationally recognized standard or code that is not expressly allowed by the version of the Uniform Code in effect at the time of petition. Such alternative shall show to the satisfaction of the department that: strict compliance with specific provisions or requirements of the Uniform Code would be unnecessary in light of the alternative; such alternative ensures the achievement of the Uniform Code's intended objective; and such alternative does not substantially adversely affect provisions for health, safety, and security in comparison to that provided by strict adherence to the Uniform Code.

(1) Any person aggrieved may petition the department for relief of any provision or requirement of the Uniform Code under this subdivision for an alternative compliance case. The petition shall be submitted to the department on a form prescribed by the department and shall include the following:

(i) the fee(s) specified in or determined in accordance with section 1205.6 of this Part;

(ii) the specific provisions and requirements of the Uniform Code to which a variance or modification is sought;

(iii) the specific alternative compliance measures proposed, including the edition of the proposed alternative code or standard to be used, a detailed description and analysis of how the alternative compliance measures meet the requirements of the proposed alternative code or standard, and evidence substantiating that the modifications or alternative design do not substantially adversely affect provisions for health, safety, and security in comparison to that provided by strict adherence to the Uniform Code;

(iv) the name and qualifications of the design professional, licensed and registered to practice in the State of New York, who designed the alternative compliance measures to meet the requirements of the proposed alternative code or standard;

(v) the name and qualifications of an independent design professional, licensed and registered to practice in the State of New York, who performed a peer review of the alternative compliance measures to ensure compliance with the requirements of the proposed alternative code or standard;

(vi) the names and contact information of any authorities having jurisdiction and any other parties identified by the petitioner or the department as interested parties.

(vii) the results of the peer review including a statement, affirming that the design professional is an independent design professional within the meaning of this Part, as to whether the modifications or alternative design substantially adversely affect provisions for health, safety, and security in comparison to that provided by strict adherence to the Uniform Code;

(viii) where necessary, construction documents (drawings and/or specifications), construction document evidence, site plans, and descriptions of buildings and their histories; and

(ix) a succinct list of all alternative compliance measures and identification of specific locations in the plans where information on these measures is located.

(2) A petitioner may choose to submit an alternative compliance case as a complete petition under paragraph (1) of this subdivision, or in two stages, including a conceptual submission and a final submission, under this paragraph.

(i) The conceptual submission shall be submitted to the department on a form prescribed by the department and shall include the following:

(a) the fee(s) specified in or determined in accordance with section 1205.6 of this Part;

(b) conceptual description(s) of the specific provisions and requirements of the Uniform Code to which a variance or modification is sought;

(c) conceptual description(s) of proposed alternative compliance measures;

(d) the name and qualifications of the design professional, who will design the alternative compliance measures;

(e) the name and qualifications of the independent design professional, who will perform a peer review of the alternative compliance measures; and

(f) the names and contact information of any authorities having jurisdiction and any other parties identified by the petitioner or the department as interested parties.

(ii) Following receipt and review of a conceptual submission, the department shall issue, in writing to the petitioner and all interested parties, a response as to whether preliminary approval has been granted as to the selected design professionals and their qualifications and the proposed alternative code or standard to be used. The issuance of a preliminary approval by the department shall not guarantee a final approval of the petition.

(iii) Following conceptual submission, a final submission shall be submitted to the department on a form prescribed by the department and shall include the following:

(a) the fee(s) specified in or determined in accordance with section 1205.6 of this Part;

(b) any updated information to the conceptual submission;

(c) the specific alternative compliance measures proposed, including the edition of the proposed alternative code or standard to be used, a detailed description and analysis of how the alternative compliance measures meet the requirements of the proposed alternative code or standard, and evidence substantiating that the modifications or alternative design do not substantially adversely affect provisions for health, safety, and security in comparison to that provided by strict adherence to the Uniform Code;

(d) results of the peer review including a statement, affirming that the design professional is an independent design professional within the meaning of this Part, as to whether the modifications or alternative design substantially adversely affect provisions for health, safety, and security in comparison to that provided by strict adherence to the Uniform Code;

(e) where necessary, construction documents (drawings and/or specifications), construction document evidence, site plans, and descriptions of buildings and their histories; and

(f) a succinct list of all compliance measures and identification of specific locations in the plans where information on these measures is located.

(3) At the discretion of the department, one or more conferences may be scheduled with the department. The petitioner, design professional of record, the independent design professional, and all parties listed on the submission shall be notified and given the opportunity to attend, pose questions, and provide answers to the satisfaction of the department. These conferences may be requested by the petitioner or the department at any time prior to the final determination. In collaboration with the petitioner, design professional of record, the independent design professional, and the authority having jurisdiction, the department shall have the authority to fashion suitable additional mitigating requirements deemed necessary by the department in order to render a decision or determine that the proposed alternative does not substantially adversely affect provisions for health, safety, and security in comparison to that provided by strict adherence to the Uniform Code.

(4) Upon receipt of a petition for an alternative compliance case, the department shall review the petition for completeness to determine whether it has sufficient detail to permit the department to make a determination on the basis of the information contained within the petition.

(i) If the petition is deemed complete, the department shall consider the evidence offered, make findings of fact and conclusions of law, and render its decision in writing.

(ii) If the petition is deemed incomplete, or the department determines that additional information is required, the department shall notify the petitioner of the information required for completeness. If, after notice that the petition is incomplete or additional information is required, no additional information is forthcoming and the file has remained inactive for a period exceeding 90 days, the department may dismiss the matter for neglect to proceed, but without prejudice to any subsequent petition. In the case of petitions which are submitted in two stages: if, once the first (conceptual) stage is completed, no additional information is forthcoming and the file has remained inactive for a period exceeding 180 days after notice, the department may, at its discretion, dismiss the matter for neglect to proceed, but without prejudice to any subsequent petition.

(5) The department shall serve a copy of the decision on the petitioner, the administrative official authorized to enforce the Uniform Code, and any other interested parties (as provided by the petitioner in their submission) by either first-class mail or electronic mail. A decision shall be filed, indexed, and distributed in the same manner as a decision of the boards of review.

N.Y. Comp. Codes R. & Regs. Tit. 19 § 1205.5

Amended New York State Register June 28, 2023/Volume XLV, Issue 26, eff. 6/28/2023