§ 5-05 Environmental Review Procedures.
(a) Threshold Determination.
(1) In the case of any action for which a lead agency is prescribed by 62 RCNY § 5-03, and thus for which no agreement among involved agencies is necessary, only such lead agency may determine that such action, considered in its entirety, requires environmental review, and such determination shall be binding upon the city. The OEC shall, upon the request of such agency, assist in such determination.
(2) In the case of any action for which agreement among involved agencies is necessary for selection of a lead agency, if an agency that could be the lead agency for the particular action pursuant to subdivisions (b) through (g) of 62 RCNY § 5-03 determines that such action may require environmental review, then the lead agency shall be agreed upon as provided in § 3 of these rules, and such lead agency shall determine whether such action, considered in its entirety, requires environmental review. Such determination shall be binding upon the city. The OEC shall assist in any determination made pursuant to this paragraph upon the request of the agency making such determination.
(3) Nothing contained in this subdivision shall be construed to require an affirmative determination, whether formal or informal, that an action is exempt from environmental review, or is a Type II action pursuant to the SEQRA Regulations, where such determination would not otherwise be required by law.
(b) Other Determinations.
(1) After the determination that an action requires environmental review, the lead agency shall notify the OEC that it is commencing environmental review and complete or cause to be completed the standardized environmental assessment statement provided by the OEC. Such statement shall provide guidance in determining whether the action may have a significant effect on the environment. The OEC and interested and involved agencies shall, upon the request of the lead agency, assist the lead agency in completing such statement.
(2) The OEC and interested and involved agencies shall, upon the request of the lead agency, assist such lead agency with respect to any aspect of a determination of significance and/or a draft, final and/or supplemental environmental impact statement.
(3) Whenever, in the preparation of a draft environmental impact statement, the lead agency identifies a potential significant impact, the lead agency shall consult with any agency that has primary jurisdiction to carry out possible mitigations, and with any city agency that has primary regulatory jurisdiction over the subject matter of such impact.
(4) Lead agencies shall transmit copies of the following to the OEC upon issuance: notifications of commencement of environmental review, determinations of significance (including completed environmental assessment statements), draft and final scopes, draft and final environmental impact statements. In addition, lead agencies shall forward to the OEC significant supporting documentation comprising the official records of environmental reviews.
(c) Type II. The following actions are not subject to review under City Environmental Quality Review, the State Environmental Quality Review Act (Environmental Conservation Law, Article 8) or the SEQRA Regulations, subject to 62 RCNY § 5-05(d):
(1) Special permits for radio and television towers, pursuant to § 73-30 of the Zoning Resolution;
(2) Special permits for ambulatory diagnostic or treatment health care facilities, pursuant to § 73-125 of the Zoning Resolution;
(3) Special permits to allow a building or other structure to exceed the height regulations around airports, pursuant to § 73-66 of the Zoning Resolution;
(4) Special permits for eating and drinking establishments of up to 2,500 gross square feet with accessory drive-through facilities, pursuant to § 73-243 of the Zoning Resolution;
(5) Acquisition or lease disposition of real property by the City, not involving a change of use, a change in bulk, or ground disturbance;
(6) Construction or expansion of primary or accessory/appurtenant park structures or facilities involving less than 10,000 square feet of gross floor area;
(7) Park mapping, site selection or acquisition of less than ten (10) acres of existing open space or natural areas;
(8) Authorizations for a limited increase in parking spaces for existing buildings without parking, pursuant to § 13-442 and § 16-341 of the Zoning Resolution;
(9) Special permits for accessory off-street parking facilities, which do not increase parking capacity by more than eighty-five (85) spaces or involve incremental ground disturbance, pursuant to § 16-351 of the Zoning Resolution;
(10) Special permits for public parking garages and public parking lots, which do not increase parking capacity by more than eighty-five (85) spaces or involve incremental ground disturbance, pursuant to § 16-352 of the Zoning Resolution;
(11) Special permits for additional parking spaces, which do not increase parking capacity by more than eighty-five (85) spaces or involve incremental ground disturbance, pursuant to § 13-45 of the Zoning Resolution; and
(12) An action listed in subdivision (e) of this section, provided that such action also meets the requirements in subdivision (f) of this section.
(d) Type II Prerequisites.
(1) An action listed in 62 RCNY § 5-05(c), which is also classified as Type I pursuant to 6 NYCRR Part 617.4, shall remain Type I and subject to environmental review.
(2) An action listed in 62 RCNY § 5-05(c)(1) - (3), or (6) involving ground disturbance shall remain subject to environmental review, unless it is determined that any potentially significant hazardous materials impacts will be avoided.
(3) An action listed in 62 RCNY § 5-05(c)(1), (2), or (6) involving excavation of an area that was not previously excavated shall remain subject to environmental review, unless it is determined that the project site is not archaeologically sensitive.
(4) An action listed in 62 RCNY § 5-05(c)(3) shall remain subject to environmental review, unless it is determined that any potentially significant noise impacts will be avoided.
(5) An action listed in 62 RCNY § 5-05(c)(1), (2), or (6) involving the removal or alteration of significant natural resources shall remain subject to environmental review.
(6) An action listed in 62 RCNY § 5-05(c)(1), (3), (4), (6), or (9) - (11) shall remain subject to environmental review if the project site is:
(i) wholly or partially within any historic building, structure, facility, site or district that is calendared for consideration or eligible for designation as a New York City Landmark, Interior Landmark or Scenic Landmark;
(ii) substantially contiguous to any historic building, structure, facility, site or district that is designated, calendared for consideration or eligible for designation as a New York City Landmark, Interior Landmark or Scenic Landmark; or
(iii) wholly or partially within or substantially contiguous to any historic building, structure, facility, site or district, or archaeological or prehistoric site that is listed, proposed for listing or eligible for listing on the State Register of Historic Places or National Register of Historic Places.
(e) Residential Development Type II Actions. The following actions are not subject to review under City Environmental Quality Review, the State Environmental Quality Review Act (Environmental Conservation Law, Article 8) or the SEQRA Regulations, subject to subdivision (f) of this section:
(1) Actions that enable incremental development of at least 1 and no more than 250 new dwelling units or new income-restricted dwelling units, and no more than 35,000 gross square feet of space for non-residential uses, which includes no more than 25,000 gross square feet of space for commercial uses and no more than 25,000 gross square feet of community facility space, and which at the time of the environmental determination are:
(i) located wholly within an existing R5 through R10 Residence zoning district, provided that such action does not include the creation or enlargement of a Special Mixed Use zoning district or a stand-alone Commercial zoning district; or
(ii) located in an existing stand-alone Commercial zoning or Manufacturing zoning district and are being developed pursuant to a regulatory agreement or lease with a government agency to develop housing or a decision by the Board of Standards and Appeals authorizing residential development; or
(2) Actions that enable incremental development of at least 1 and no more than 175 new dwelling units or new income restricted dwelling units, and no more than 20,000 gross square feet of space for non-residential uses, which includes no more than 10,000 gross square feet of space for commercial uses, and no more than 10,000 gross square feet of community facility space, and which at the time of the environmental determination, are located at least partially within an existing R1 through R4 Residence zoning district, provided that such action shall not include actions that include the creation or enlargement of a Special Mixed Use zoning district or a stand-alone Commercial zoning district.
(f) Type II Residential Development Prerequisites. An action listed in subdivision (e) of this section must also comply with all of the following to be a Type II action, at or before the time environmental review is required to be completed:
(1) Any new building or any enlargement of an existing building on the development site shall not burn fossil fuels to supply heat or hot water;
(2) The applicant or development site owner shall have complied with the following site-specific requirements:
(i) for developable sites that include one or more tax lots that do not have an (E) designation for hazardous materials pursuant to § 11-15 of the New York City Zoning Resolution at the time of the environmental determination, completed a Phase I Environmental Site Assessment for the development site and either:
(A) obtained a written signoff from the lead agency that no further environmental investigation is required or that a plan to address any hazardous materials is acceptable; or
(B) consented to the establishment of an (E) designation for hazardous materials pursuant to § 11-15 of the New York City Zoning Resolution and 15 RCNY Chapter 24 on the developable sites, provided that where an (E) designation is not available and the development site will be developed pursuant to a regulatory agreement with a government agency, such government agency shall include protections and development oversight requirements equivalent to an (E) designation found in 15 RCNY Chapter 24 in such regulatory agreement; and
(ii) obtained a determination from the New York City Landmarks Preservation Commission (LPC) stating whether any developable site is within an archaeologically sensitive area, is designated, calendared for consideration or eligible for designation as a New York City Landmark or Historic District, is listed on, or formally determined to be eligible for inclusion on, the National Register of Historic Places or the New York State Register of Historic Places, or is substantially contiguous to a sunlight sensitive architectural resource, and
(A) if LPC determines a developable site is within an archaeologically sensitive area, completed an archaeological document study for the development site and obtained a writing from LPC that the development of such development site does not raise archaeological concerns; and
(B) if LPC determines a developable site is designated, calendared for consideration or eligible for designation as a New York City Landmark or Historic District or is listed on, or formally determined to be eligible for inclusion on, the National Register of Historic Places or the New York State Register of Historic Places, obtained a writing from LPC that the development of such development site does not raise historic preservation concerns;
(iii) agreed to prepare and implement a Construction Protection Plan consistent with the requirements of the New York City Department of Buildings Technical Policy and Procedure #10/88 for a development site located at least partially within 90 feet of a building or site formally determined to be eligible for listing on the National Register of Historic Places or the New York State Register of Historic Places or of a building or site that is eligible for designation as a New York City Landmark or Historic District;
(iv) for developable sites within 1,000 feet of an air emissions source that operates under a permit issued pursuant to subpart 201-5 of title 6 of the New York Codes, Rules and Regulations (New York State facility permits) or subpart 201-6 of such title (Clean Air Act Title V permits) or either within 400 feet of any existing air emission source with an active or expired industrial permit issued by the New York City Department of Environmental Protection or within 400 feet of any unpermitted industrial source, confirmed to the lead agency based on the emission limits in the permit(s) or, for any unpermitted source, the estimated emission limits from similar source permit(s) provided by the lead agency, that concentrations of any pollutant regulated by the permit(s) or identified by the lead agency for any unpermitted source will not exceed the corresponding National Ambient Air Quality Standards (including background concentrations) and Annual Guideline Concentration (AGC) and Short-term Guideline Concentration (SGC) in the New York State Department of Environmental Conservation Division of Air Resources Guidelines for Evaluation and Control of Ambient Air Contaminants (DAR-1) at such developable site, as determined in accordance with the industrial source screen in Appendix B of 62 RCNY Chapter 5 of the rules of the city of New York (Industrial Air Quality Checklist).
(v) With respect to calculation of noise levels, either:
(A) provided to the lead agency representative peak hour outdoor noise sampling showing less than 70 A-weighted decibels (dBA) L10 ambient noise levels at all developable sites, and provided outdoor noise sampling for all developable site buildings within the line of sight of any railway or elevated subway showing less than 65 dBA Ldn ambient noise levels and confirmed that all developable sites are outside the 65 Day Night Average Sound Level contours established in the Noise Exposure Map (NEM) Report for John F. Kennedy Airport and LaGuardia Airport, or
(B) agreed to establishment of an (E) designation for noise pursuant to § 11-15 of the NYC Zoning Resolution on any developable sites that cannot meet the requirements of item (A) above, provided that where the development site will be developed pursuant to a regulatory agreement with a government agency, such government agency shall include protections equivalent to those imposed by an (E) designation for noise attenuation in such regulatory agreement.
(3) The projected duration of construction at each development site shall not be greater than 24 months and no consecutive projected construction period for all substantially contiguous developable sites shall be greater than 24 months.
(4) No portion of any developable site shall:
(i) be located adjacent to an arterial highway listed in Appendix H to the New York City Zoning Resolution or a vent structure for a tunnel;
(ii) be located within in a Special Coastal Risk District mapped pursuant to Article XIII, Chapter 7 of the New York City Zoning Resolution; or
(iii) contain a natural resource.
(5) The action shall not enable construction of a new building or other structure or enlargement of an existing building or structure with a maximum allowable height greater than 250 feet, including all rooftop bulkheads, mechanical equipment, parapets, and any other parts of the building, or with a maximum possible height greater than 50 feet if substantially contiguous to a public open space other than a street or sidewalk, natural resource or an architectural sunlight sensitive resource identified by LPC under subparagraph (ii) of paragraph (2) of this subdivision above, unless such open space, natural resource or sunlight sensitive resource is entirely within the area between -108 degrees from true north and +108 degrees from true north of the building or other structure or is an architectural resource that is located on a facade that faces directly away from a developable site.
(Amended City Record 3/21/2018, eff. 4/20/2018; amended City Record 4/25/2024, eff. 5/25/2024)
