Deck in a Rear Yard?

Above is a view into typical Brooklyn Brownstone rear yards, showing many decks and roof coverings constructed of combustible materials. Often, these structures have not been constructed legally.

Q: What are the legal requirements for the construction of a Deck in the Rear Yard of a Brownstone-type building?

A: When considering construction of a Deck, it is necessary to comply with the Department of Buildings requirements for Decks. Legalization of existing Decks can be problematic, because many have not been designed by an Architect or Engineer and no Permit was ever obtained. The NYC Department of Buildings is cracking-down on Deck requirements, as they can be hazardous from a structural or fire safety standpoint when constructed improperly. An Illegal Deck can also be a problem when selling a property or applying for a Certificate of Occupancy.

Below is a listing of the basic Deck requirements, distilled from NYC Department of Buildings Memorandums. New Decks would need to comply with the below in order to obtain Plan Approval. Existing Decks needing to be Legalized would have to be modified (as required) to comply with the below:

Definition of a Deck:
A Deck is a raised floor, supported by structural framing above the surrounding ground at the level of the first story of a house. A Deck must be constructed without a roof. An outdoor structure with a roof is not a Deck. It may be considered an additional room, in which case different zoning rules and NYC Building Code provisions will apply.

Deck Requirements:
1 Only a NYS Registered Architect or Professional Engineer may design a Deck or porch. The Department of Buildings must approve the plans and issue a permit before any work begins.

2 Decks must be located at or below the floor level of the first story of a house.

3 A Deck may project up to eight feet (8’) beyond the face of the building into the required thirty foot (30’) rear yard.

4 There shall be no useable building or storage space underneath the Deck.

4 There must be at least three feet (3’) between the Deck and the SIDE or REAR LOT LINE, unless the Deck is constructed of non-combustible materials, such as steel, in which case it may be closer to the Property Lines.

5 All Decks must have a railing at least 42 inches high.

6 Spaces between railings and/or posts can be no greater than five inches.

7 Elevated Decks must be braced at the columns and where the beams and columns connect.

8 Decks must be able to withstand a minimum of 40 pounds per square foot plus the weight of the Deck. This is the same live load required as for the building itself. Thus, a Deck will usually require a structure as robust as that of the main house’s floor construction, rather than the flimsy, under-structured wood Decks that are commonly seen.

9 Decks must be properly anchored to a house or building. Nailing Decks instead of using proper anchors is a common mistake that often leads to accidents and can cause serious injuries.

10 A homeowner may construct a Deck, but is not allowed to perform plumbing or electrical work. If you use a contractor, the contractor must have a Home Improvement Contractor’s License.

Have a Deck question? E-mail Permitadvisor

Tags: Deck, Porch, Legalization, Addition, Brownstone, Rear Yard

What is an As-of-Right Development?

Q: What is an As-of-Right Development?

A: An AS-OF-RIGHT development is a DEVELOPMENT which complies with all applicable zoning regulations and does not require any discretionary action (special permit or variance) by the City Planning Commission or Board of Standards and Appeals for approval.

The significance is as follows:
A Developer acquires a vacant, 2,000 sq ft ZONING LOT in a Residence District which has a Maximum FLOOR AREA RATIO (FAR) of, say 4.0.

To determine the maximum ZONING FLOOR AREA that may be developed on the site, we multiply the LOT AREA (2,000 sq ft) x Maximum FAR (4.0), and we get 8,000 square feet.

When the Developer's Architect files the CONSTRUCTION DOCUMENTS with the NYC Department of Buildings for Plan Approval, the Architect illustrates the above FAR Calculation in his Zoning Analysis.

The NYC Department of Buildings Plan Examiner reviews the plans and finds that the development complies with the applicable FAR requirements. Assuming that the project complies with all other Code and Zoning regulations, the DOB Plan Examiner may APPROVE the Plans, and the Developer may construct the 8,000 sq ft building as-of-right.

It is not necessary for the Developer to seek the additional approval of the City Planning Commission, or of the Local Community Board, or of any other outside party of interest. His development complies with the applicable Zoning Laws currently in force, and he is entitled to build.

There are stories about over-development and upset neighbors witnessing new construction that they find bothersome or too large. Sometimes, it is true, an unscrupulous Developer or Architect has abused the DOB's PROFESSIONAL CERTIFICATION* program or exploited a COMMUNITY FACILITY FAR (when the building is not a Community Facility) or has pulled some other 'fast one' that the DOB is likely to catch. But often, the Development is as-of-right.

-For Residents concerned about over-development, gain an understanding of the Zoning Regulations for your District and lobby your Lawmakers to change the Zoning Regulations. Targeting the Developer will not be fruitful if the development complies as-of-right, the plans are approved, and a Work Permit has been issued.

-For Developers, it would usually be unwise not to maximize the potential Zoning Floor Area of the development site.

*Banks often do not accept plans approved under Professional Certification for development financing.

Have a Zoning question? E-mail Permitadvisor

Tags: zoning, bulk, floor area ratio, development, overdevelopment

Projecting Balconies

Richard Meier's New Building on Prospect Park showing a nice use of Projecting Balconines beyond the Street Line

Q: Can a Balcony Project beyond the FRONT LOT LINE or STREET LINE? If so, how far?

A: As per the NYC 1968 Building Code, Balconies, including their railings and supporting brackets, may project up to 22 inches beyond the STREET LINE. There are also many Zoning Regulations to consider for Balconies. In most cases, Balconies must be located at or higher than the floor level of the third story of a Building or at least 20 feet above CURB LEVEL. The aggregate length of Balconies cannot exceed 50% of the length of the Building Wall from which they project.

Check the Zoning Regulations for additional Balcony requirements.

Ref: Building Code Section 27-313
Zoning Resolution Section 23-13

IS THIS A SIGN?

Q: Does the above 'Grand Theft Auto' mural, being painted on the side of a building on Houston Street, count as a Sign for Zoning purposes? Is it subject to the Sign Regulations and Area Limitations of the Zoning Resolution?

A: This is in fact a SIGN, specifically an ADVERTISING SIGN, and it would need to comply with the Advertising Sign regulations for the applicable Zoning District.

What is a WIDE STREET?

Prospect Park West in Park Slope, Brooklyn (shown above) is a nice example of a WIDE STREET

Polhemus Place in Park Slope, Brooklyn (shown above) is a nice example of a NARROW STREET

Q: What is the definition of a WIDE STREET? Does street width include the width of the Sidewalk?

A: A WIDE STREET is a Street that is 75' Wide or more. Streets less than 75' wide are NARROW STREETS. When determining Street Width, include the width of the sidewalk. It is important to determine whether your proposed DEVELOPMENT is located on a WIDE STREET or a NARROW STREET, as the FAR and HEIGHT AND SETBACK requirements vary depending on what type of street the DEVELOPMENT SITE is located on.

For the full definition of a WIDE STREET, and many more useful permit definitions, visit our other blog: permitpedia.blogspot.com

Balcony Enclosures?

Q: Is it permitted under any circumstance to enclose a Balcony? If so, are there any special considerations to such enclosures?

A: The Department permits lightweight, readily removable balcony enclosures, not considered a permanent part of the building. This is as per a DOB Memo dated 6/17/1976. Balcony enclosures shall comply with the following criteria:

1. The enclosure must be of lightweight, non-combustible construction.
2. The enclosure assembly must not include masonry or insulation.
3. The enclosure must contain operable windows to provide 10% light and 5% ventilation to both the balcony and the room opening onto the balcony.
4. The existing balcony parapet or railing must remain intact.
5. The enclosure shall be anchored and designed to resist Wind Loads and Lateral Loads.
6. Plumbing, heating, ventilation or air conditioning systems must not extend into the balcony (except for the mandatory retention of balcony drains)
7. Additional dead load consisting of flooring, subflooring or soil shall not be added to the balcony. Furniture shall be restricted to the lightweight "lawn type" variety.

Non-Profit Institution with Sleeping Accommodations

Q: What is the proper way to indicate a Non Profit Institution with Sleeping Accommodations on a Schedule-A or Certificate of Occupancy?

A: For a New Building, which is a Non-Profit Institution with Sleeping Accommodations:

Description: Non-Profit Institution with Sleeping Accommodations
Occupancy Group: J-2-Residential
Use Group: 3-Community Facility
Multiple Dwelling Classification: HAEA
List Number of Dwelling Units Per Floor? Yes

What is a Seismic Joint?

Q: What is a Seismic Joint?

A: Pursuant to Local Law 17/1995, a Building Separation (seismic joint) is required for all new construction adjoining existing construction. One inch (1") of separation is required for every fifty feet (50') of building height. This separation does not create a non-compliant side yard.

When proposed work consists of enlargement of an existing structure, compliance is required when new foundations are constructed, or when existing foundations are reinforced for the new enlargement, or when the cost of alterations exceeds 60% of the building value.

Home Office?

Q: Is a Home Office or Home Occupation allowed within a Dwelling Unit? Is the Home Occupation Use regarded as a Commercial Use? What are the limitations?

A: Home Occupation (a Home Office) is permitted within a Dwelling Unit subject to limitations. A Home Occupation is regarded as an Accessory Use to the Residential Apartment. The Home Occupation:
1. Must be carried on within the Dwelling Unit.
2. Is Limited to One Employee not residing within the Dwelling Unit.
3. Shall Occupy not more than 25% of the Dwelling Unit, or 500 sq ft of the Dwelling Unit, whichever is less.

These Home Occupations typically are small professional offices. If frequented by the Public, Handicap Accessibility may be required.

Home Occupations may include:
Fine arts studios, Professional offices, Teaching of not more than four pupils simultaneously,or, in the case of musical instruction, of not morethan a single pupil at a time.

Home Occupations may not include:
Advertising or public relations agencies, Barber shops, Beauty parlors, Commercial stables or kennels,Depilatory, electrolysis , or similar offices, Interior decorators' offices or workshops, Ophthalmic dispensing, Pharmacy, Real Estate or Insurance Offices, Stockbroker's Offices

Also Not Permitted:
Sales of articles produced elsewhere than on the premises, exterior displays, displaying exterior signage (except a nameplate for practice of a profession), producing offensive noises, vibration, etc.

See Definition of Home Occupation in the NYC Zoning Resolution for additional information.

Is the "1% Rule" still accepted by the NYC DOB?

Q: Is the "1% Rule" still accepted by the NYC DOB?

A: The "1% Rule" was used in the past by Architects to enable a minor addition to an existing building which had not been enlarged previously, even if there was no available FAR left. This was typically granted as a Reconsideration by the Borough Commissioner.

However, there is nothing within the NYC Zoning Resolution to support this "1% Rule", and it was ultimately found by the DOB to be indefensible. The DOB has since stopped granting this Reconsideration.

Greenhouse in a Rear Yard?

Q: What are the requirements dictating the construction of a Greenhouse in a Rear Yard?

A: The below is a summary of a DOB Memo by Irving Minkin, dated 4/8/77 outlining the criteria for Greenhouses. I believe this is still in force:

1. Greenhouse & structure to which it is attached shall be non-commercial.
2. Greenhouse may project a maximum of 6' into the required Rear Yard, measured from the exterior face of the building wall.
3. Greenhouse may rest directly upon Grade level or be supported by columns.
4. No offensive dust or odors may be created by such use.
5. The Greenhouse together with its supports, is permanently constructed of non-combustible materials.
6. Glazing is with plain or wire glass.Slow-burning plastic is not permitted. A 'Greenhouse-Type glass constructed rood must be built as part of the enclosure.
7. The Greenhouse floor construction shall be capable of sustaining a minimum Live Load of 75 lbs.
8. The enclosed Greenhouse shall contribute to the Zoning Floor Area of the building.
9. The Greenhouse shall contain operable windows providing light and ventilation. 10% windows required for the combined area of the Greenhouse and any interior room being served by the windows.
10. The depth of the Greenhouse shall not be included in the maximum permitted depth of a room without a window.

What is little E? Is it near Little Italy?

Q: What is the little 'E' Designation on the Zoning Map? What is required?

A: In addition to Little Italy, NYC also has places called 'little E'. But it's not a hip new neighborhood. It is a site where industrial contaminants may exist.

"The E Designation is applied to certain properties that have been re-zoned, where the projected use may lead to increased environmental risk, as when a site zoned for manufacturing is re-zoned to residential use. Developers, owners and tenants on such sites may have to do environmental investigation before they can get their construction plans approved. In some cases, remediation (cleanup) may also be required and/or special measures built into the project to protect occupants or construction workers against environmental hazards. At the very least, this means delay. It can also result in added cost" - Joseph Horowitz, PE

What are "Air Rights"? How does it work?

Q: What are Air Rights? How do I know if Air Rights are available? What does that mean?

A: "Air Rights" is the term used when a Building Owner sells/transfers his unbuilt Zoning Floor Area to another Building Owner or Developer. This may happen, for instance, where a Landmarked structure, such as a Church, is located in a high-density Residential or Commercial District. The Church could be located in a Zoning District with an FAR of 10, but might only be using a fraction of this. They could sell their unbuilt Zoning Floor Area to an adjacent Owner/Developer. This would constitute an "Air Rights Transfer" or "Zoning Floor Area Transfer". The Church benefits because they receive compensation for the sale of Potential or Unrealized Real Estate. The Developer benefits because they can then incorporate this additional Zoning Floor Area into their building.

Most Commonly, the Development Lot and the Underbuilt Lot are adjacent to one another. The Tax Lots are declared to be a single Zoning Lot. This would be formalized as an agreement, and filed with the County Clerk's Office, similar to a Deed. Thus, an Air Rights Transfer or Zon ing Lot Agreement of this type should be retrievable by a Title Search or an in -house ACRIS search of Department of Finance records.

In addition, when properly done, a statement will be found on the Certificate of Occupancy stating "This Zoning Lot is comprised of Tax Lots (1), (2), and (3)", signifying that multiple Tax Lots are being treated jointly as one Zoning Lot for a Zoning benefit.

Do Flags and Banners Require Work Permits?

Q: Is DOB Approval required to hang a banner or a flag on an existing or new flagpole? How are flags and banners treated?

A: A flag or banner is a Sign, and requires a DOB Sign application and compliance with the non-illuminated sign provisions of Zoning. If both sides of the flag are identical, then the area does not need to be counted twice. If a new Flagpole is proposed, this shall be filed under a separate application from the Sign, with structural connection details. Flagpoles may project across the front property line up to 2' within the curb, and shall be a minimum of 15' above the street level. Flags on Community Facility buldings which represent such facility are permitted without area limitation.

What is a Mechanical Deduction?

Q: What is a Mechanical Deduction?

A: A Mechanical Deduction is a floor area deduction where the area used for Mechanical Equipment is subtracted from the Total Zoning Floor Area of a proposed building. When planning a building, Mechanical Deductions should be taken to ensure that the maximum Zoning Floor Area for a site is achieved. Mechanical Deductions should not exceed 2% of the area of the building. Mechanical Deductions may include Plumbing Shafts, Mechanical Equipment Rooms, and similar areas. Key Plans illustrating the location, dimension, and area of each Mechanical Deduction must be provided and tabulated to satisfy DOB requirements.