Translate This Page Email a Friend Printer Friendly text Size: Sm Med Lg
NYC Mayor's Office of Environmental Coordination

Get Adobe Reader
Getting Started

GETTING STARTED

Q:  Do any LL86 requirements apply to my project and, if so, which ones?
A:  The amount of city funding and the attributes of work scope are the main criteria to consider with regard to whether a project or project phase is subject to one or several LL86 requirements.  To aid in determining which LL86 requirements, if any, apply to a project, the following questions should be answered in the order presented below.  Note that all cost thresholds should be adjusted for inflation.

Question 1:  Does the project receive enough city funding to be covered by LL86?

When the anticipated City contribution to the project, i.e. dollars that will be released from the city treasury to pay for any capitally eligible project work, is less than $10 million, then at least 50% of the total project cost must be funded with such dollars in order for the project to be subject to LL86. Projects receiving $10 million or more from the treasury are subject to the law, regardless of the ratio of total project cost to the City’s contribution.  Note that the dollars released from the the city treasury may be either capital funds or expense funds.  Further note that, for the purposes of determining the total project cost, all capitally eligible work described in the approved Certificates to Proceed and CBX Certificates should be considered, including all supporting documentation. If these threshold funding criteria are met, proceed to Question 2.  If not, the project is not subject to any LL86 requirements. 

Question 2:  Did the project "begin" before the law took effect?

There are two "grandfather clauses" in LL86: the first relates to when the first payment was made and the second relates to when design approval was given.  Regarding the first payment clause: if a payment was released from the city treasury prior to January 1, 2007 to pay a non-City entity for capitally eligible work in accordance with an approved Certificate to Proceed or CBX Certificate, then the project is not subject to any LL86 requirements.  Regarding the design approval clause:  if the City granted design approval before January 1, 2007 - where the date of design approval is defined as the date when the last of all CP's and CBX Certificates necessary to spend the anticipated city contribution are issued by OMB - then the project is not subject to any LL86 requirements.  If such first payment was or will be made after January 1, 2007 and such design approval was or will be granted after this date, proceed to Question 3.

Question 3:  Assuming the project receives enough funding and the above grandfather clauses do not apply, what type of work scope is subject to which LL86 requirements?

Work scope that occurs in a space with a primary occupancy other than residential, industrial, or outdoor assembly could be subject to one or more of four basic categories of requirements:  LEED rating level requirements, LEED energy cost reduction requirements, system specific energy cost reduction requirements, and potable water use reduction requirements as described below. 

  • LEED Rating Level Requirements.  If the project or project phase has work that involves one or more new buildings, additions to existing buildings, fit-outs of space in one or more new buildings, or substantial reconstructions of one or more existing buildings, if such work occurs in an area with a primary occupancy that is covered, and if such work has a construction cost of $2M or more (adjusted for inflation), then it is subject to a LEED® rating level requirement and may also be required to apply to the USGBC for certification of at least the rating level required.
  • LEED Project Energy Cost Reduction Requirements. If the construction cost of the work subject to the LEED rating level requirement is $12M or more (adjusted for inflation), then this work is also subject to the minimum 20-30% energy cost reduction requirements;
  • System Specific Energy Cost Reduction Requirements. If the project or project phase does not have work that is subject to the LEED rating level requirement, if such work involves boilers with a construction cost of $2M or more, lighting with a construction cost of $1M or more, or HVAC comfort control systems with a construction cost of $2M or more (adjusted for inflation), and if such work occurs in a new or existing building with a primary occupancy that is covered, such work is subject to the minimum 5-10% system specific energy cost reduction requirements. 
  • Potable Water Use Reduction Requirements.  If the project or project phase involves domestic plumbing work that is also subject to the LEED rating level requirement and if such work has a construction cost of $500,000 or more (adjusted for inflation), then such project or project phase is subject to the 30% potable water use reduction requirement. If a project or project phase involves domestic plumbing work that is not also subject to the LEED rating level requirement, if such work occurs in an existing building with a primary occupancy that is covered, and if it has a construction cost of $500,000 or more (adjusted for inflation), then it also is subject to the 30% potable water use reduction requirement.

See the Diagram of Criteria and Requirements for Local Law 86 of 2005 that further defines the various categories of work scope outlined above and the specific requirements for each.  If the scope of work attributes, such as construction cost, primary occupancy, and type of work meet the scope of work criteria described in this diagram, then the project must be designed and built in accordance with applicable requirements.  

Q:  How is“project” defined under LL86?
A:  A project consists of all the capitally eligible work described in all the Certificates to Proceed and CBX Certificates issued by OMB to authorize the expenditure of the anticipated City contribution for capitally eligible work, including all supporting documents. It is important to note that the definition of project is not limited to capitally eligible work paid with city funds, but includes any capitally eligible work mentioned in the above referenced documentation. What constitutes "capitally eligible" is defined in detail in the latest version of the NYC Comptroller’s Directive 10 and includes items such as the labor costs, material costs, and professional fees for site preparation, utility infrastructure, landscaping, land acquisition, furniture, fittings and equipment, as well as work related to design and construction.  

Q:  For the purposes of determining whether a new or existing building in a project is subject to the LL86 LEED® rating level requirement, how should the boundary of the building be defined?
A:  Since one structure on the project may be connected with others in various ways, an agency may occasionally need guidance regarding which structures or portions of structures in a project constitute separate buildings.  In these cases, the agency should define the boundary of the building in a manner that is consistent with the PW-1 form issued by the NYC Department of Buildings (DOB) when the project is filed.  Should a determination be needed prior to issuance of the PW-1, the agency should request a pre-consideration by the DOB Borough Commissioner of the borough in which the project is located.

Q:  For the purposes of determining which portions of project work are subject to which LL86  requirements, how should the primary occupancies of such work be determined?
A:  Since the building portions of a project or project phase affected by project work could house more than one occupancy type, an agency may occasionally need guidance regarding which occupancy group applies to which part of the project.  In the case of a new building, the dominant occupancy of such building governs.  However, in cases where there is a fit-out in a new building with a primary occupancy that is not covered, only the primary occupancy of the fit-out should be considered.  In the case of a project or project phase that involves an addition or substantial reconstruction, the dominant occupancy of the area where such work occurs should govern. Finally, in the case of a project or project phase that involves boiler, lighting, HVAC comfort control, or domestic plumbing work that is not subject to the LEED® rating level requirement, the primary occupancy of the entire building in which the work occurs should govern. In all cases, the agency should define the primary occupancy of the building portions affected by project work in a manner that is consistent with the PW-1 form approved by the NYC Department of Buildings (DOB) when the project is filed.  Should a determination be needed prior to DOB approval of the PW-1 form, the agency should request a pre-consideration by the DOB Borough Commissioner of the borough in which the project is located.

Q:  Assuming all other LL86 criteria are met, if all or part of the spaces in the project will be built out by the lessee according to the terms of a lease agreement wherein a city agency, or a non-city entity that holds a project funding agreement with a city agency, is leasor or, conversely, if all or part of the spaces in the project will be built out by the leasor according to the terms of a lease agreement wherein a city agency or such non-city entity is lessee, should these spaces be considered when determining which LL86 requirements apply to a project?
A:  Yes.  If a city agency (or a non-city entity holding a project funding agreement with a city agency) acts as leasor in a lease agreement that provides for project space to be built out by a lessee, then the work in this space should be considered when determining which LL86 requirements should apply.  Conversely, if a city agency (or a non-city entity holding a project funding agreement with a city agency) acts as lessee in a lease agreement that provides for the build out of project space by the leasor, the work in the leased space should also be considered when determining which LL86 requirements apply to a project.

Q:  Is the entire project covered by LL86 if the City’s funding contribution is dedicated exclusively to a type of work to which LL86 requirements do not apply?
A:  Regardless of whether city funding is utilized for all or only a portion of the project, the entire project should be considered for the purposes of determining which LL86 requirements may apply.  However, in the case of projects where the division of the project into phases has been approved in writing by MOEC, each such phase should be considered separately for all purposes other than to establish the law's threshold criteria, e.g. the dollar value of the City's contribution, the date of first payment from the city treasury, and the date of design approval.  

Q:  When the amount of the City’s contribution to a project unexpectedly increases over the course of design or construction, an agency may find the project becomes subject to the law’s provisions well after design has started.  In these cases, how should the amount of the City’s contribution be calculated for the purposes of determining whether LL86 applies to the project?
A:  The city contribution amount that should be used for the purposes of determining whether LL86 applies to the project should be derived from all Certificates to Proceed and CBX Certificates approved by the NYC Office of Management and Budget (OMB) for that project, including all supporting documentation.  In the rare case where the total anticipated amount of the City's contribution does not exceed one or more thresholds in the law when the first CP or CBX is issued but later unexpectedly receives additional city funding that puts the project over a threshold in the law, thereby increasing the level or number of applicable requirements and necessitating a significant redesign or even reconstruction, the project team should apply to MOEC for an exemption.

Q:  In cases where a project is subject to the NYC 2008 building code and therefore uses occupancy classification categories other than those in the 1968 NYC Building Code  referenced in LL86, is the project still subject to LL86?
A:  Since the occupancy classification definitions and designations in the 2008 code differ from those in the 1968 code, it may appear at first as if a building portion of a project is not covered by LL86.  However, in these cases, the occupancy classification in the 1968 code that corresponds to the dominant or primary occupancy group per the 2008 code should be used for the purposes of determining if a project is covered by LL86. This is consistent with Section 102.7 of Article 102 in Chapter 1 of the 2008 Building Code which reads:  28-102.7 References in other laws.  References to provisions of the administrative code in other laws shall be deemed to refer to equivalent provisions of the 1968 building code or the New York City construction codes as the context in which such references may appear may require.”  Agencies should contact the NYC Department of Buildings (DOB) with any questions they have in regard to which occupancy classifications in the 2008 code correspond to those in the 1968 code cited in the law. 

Q:  Since the methodology cited in the LL86 Rules for the purposes of calculating the law’s energy cost reduction requirements is derived from the NYS Energy Code  and since some versions of this Code exempt landmark buildings from all its provisions, does this mean that landmark buildings are exempt from the energy cost reduction provisions of LL86?
A:  Landmark structures are subject to all LL86 provisions.  The NYS Energy Code is referenced in the LL86 Rules only for the purposes of designating the methodology to be used to calculate energy cost reduction requirements in the law, not for the purposes of determining whether LL86 provisions apply to a project. Should circumstances unique to a particular landmark building project mean that compliance with one or more LL86 requirements is not feasible, the design team should submit an exemption application to MOEC.

Q:  Which of the projects that are subject to a LL86 LEED® rating level requirement are required to apply to the USGBC for certification of the required rating level?
A:  When a city agency manages construction of projects that use a LEED® rating system (as opposed to the NYC Green Schools 2007 rating system) to satisfy the LL86 LEED rating level requirement, a sufficient number of these projects are required to apply to the USGBC for certification as necessary to account for at least 50% of the dollars released from the city treasury each fiscal year to all the LL86 LEED projects using a LEED rating system on which that same agency is managing construction.  In cases where a city agency manages a funding agreement with a non-city entity that is managing construction of a LL86 LEED® project that uses a LEED® rating system, such agency may choose to add a clause to the funding agreement requiring that the project team apply for USGBC third party certification as a means of monitoring consultant progress and enforcing the law’s requirements, even though LL86 does not require any such funding agreement projects to apply to the USGBC. 

Q:  A project may qualify as a “substantial reconstruction” of an existing building and therefore be subject to the LL86 LEED® rating level requirements if the project work scope meets two conditions.  First, the scope must include the rehabilitation (restoration, replacement, or repair) or alteration (reconfiguration, addition, or extension) of at least two of the following three building systems: plumbing, electrical, and HVAC.  Second, the scope must include “reconstruction” work that affects at least 50% of the building floor area, where the boundary of the building is consistent with that covered by the PW-1 form approved by the Department of Buildings and where the affected floor area is calculated as the combined floor area of spaces in which there is any change as a result of such “reconstruction”.  How do I determine the work scope that qualifies as “reconstruction”?
A:  To qualify as reconstruction, work scope in an existing building must involve general construction work (described in Divisions 2-14 of MasterFormat® 2011) excluding minor alterations and ordinary repairs (defined in the NYC building code). 
 If an agency requires a determination as to whether a certain type of work constitutes minor alterations and ordinary repairs, they should request a pre-consideration by the DOB Borough Commissioner of the borough in which the project is located.  

Q:  In cases where the city provides funding for only a portion of a project, what portion of that project is subject to the requirements of LL86?
A:  The term "project" means all capitally eligible work, as capitally eligible is defined in the latest version of Directive 10 issued by the NYC Comptroller, that is described in the Certificates to Proceed and CBX Certificates issued by OMB, including all supporting documentation, regardless of which portion of the work is funded with city funds. The entire project work scope should be considered for the purposes of determining if funding and "grandfather clause" criteria are met, e.g. the amount of the city contribution, the date of first payment from the city treasury, and the date of design approval. The entire project work scope should also be considered when reviewing the scope of work criteria, i.e. primary occupancy, type of work, and construction cost, unless the project has been divided into phases.  If the project is approved by MOEC as having more than one phase, each phase should be considered separately when reviewing the scope of work criteria, but the project as a whole should still be considered when reviewing the funding and "grandfather clause" criteria.  More information on funding and "grandfather clause" criteria as well as scope of work criteria is provided in the first FAQ above.

Q:  When should a project be divided into phases and how should such phases be defined?
A:  A project should be considered as having more than one phase if:

  • Construction of different portions of the project that are subject to LL86 requirements are managed by more than one entity, such as by two non-city entities or by a city agency and a non-city entity; 
  • Separate portions of a project utilize different green building rating systems;
  • Separate portions of a project apply to the USGBC under separate applications.

Other circumstances, as determined by MOEC, may warrant that the project be considered in separate phases for certain purposes. However, in all cases, the definition of project phases must be reviewed and approved by MOEC

Q: In the case where a managing agency determines a project is subject to the LL86 LEED rating level requirement but at the same time does not meet the USGBC Minimum Program Requirements necessary for the USGBC to accept an application for certification using one of the LEED rating systems allowed by the law, is the project still subject to the LL86 LEED rating level requirement?
A: Yes.  Even though the USGBC does not accept an application to certify the LEED rating level that the managing agency must achieve for a project, the project must still earn the points and prerequisites necessary to achieve at least the minimum rating level required.  If achievement of the necessary points or prerequisites is not feasible or if the project must apply to the USGBC in order for the managing agency to meet the LL86 requirement to apply for USGBC certification of enough projects to account for 50% of the city funds spent each fiscal year on all LL86 LEED projects where construction is managed by that agency, the project should apply to MOEC for a partial exemption.