(a) Scope. This section consolidates requirements for conditions that were lawfully existing on the effective date of a Fire Code provision, and that, in accordance with FC 102.3 or 102.4, may be continued in compliance with laws, rules, regulations and permit conditions applicable at the time such condition was lawfully allowed or approved.
(b) Definitions. The following term shall, for the purposes of this section and as used elsewhere in the rules, have the meaning shown herein:
Pre-existing (facility or condition). Any condition, including the design and installation of any facility, lawfully existing on the effective date of a Fire Code provision that, in accordance with FC 102.3 or 102.4 and this rule, may be continued in compliance with laws, rules, regulations and permit conditions applicable at the time such facility was lawfully allowed or approved, and which is not determined by the Department to be subject to the provisions of FC 102.5.
(c) Types of Pre-Existing Conditions. The Fire Code was originally enacted effective July 1, 2008. It has been amended since its original enactment. Pre-existing conditions include facilities:
(1) pre-dating the Fire Code that were lawfully designed and installed in accordance with the New York City Fire Prevention Code and/or other laws, rules, regulations, permit conditions and national standards in effect prior to July 1, 2008; and
(2) lawfully designed and installed in accordance with the applicable provisions of the Fire Code and rules in effect on and after July 1, 2008, but which could no longer be designed and installed in the same manner as a result of a subsequent amendment to the Fire Code or rules that prohibits, or amends the requirements for, such facility. Pre-existing conditions do not include facilities that were designed under prior laws, rules or repealed or amended Fire Code provisions, if the facility is allowed or would be approved under the Fire Code, as subsequently amended.
(d) Illustrative Pre-Existing Conditions. The following facilities illustrate the application of FC 102.3 and FC 102.4:
(1) Conditions or facilities approved prior to July 1, 2008 that are pre-existing facilities. Approved facilities lawfully existing on June 30, 2008, may be pre-existing facilities under provisions of law that were in effect on that date but repealed effective July 1, 2008, or laws that had been repealed before June 30, 2008, where the facility was lawfully continued until that date. For example:
(A) A below-grade storage facility for flammable liquids lawfully designed and installed in a mercantile establishment prior to July 1, 2008, and that on June 30, 2008 was in compliance with the design and installation requirements for such facilities set forth in Subchapter 9 of the New York City Fire Prevention Code (New York City Administrative Code § ), is a pre-existing facility which may be continued in compliance with the provisions of the New York City Fire Prevention Code and the rules in effect on June 30, 2008, notwithstanding the fact that such below-grade facility would not be allowed or approved in a control area under the Fire Code.
(B) A refrigerating system that was lawfully designed and installed on a premises pursuant to Subchapter 18 of the New York City Fire Prevention Code prior to the enactment of the 1968 Building Code, and that had not been required by reason of alteration or otherwise to be replaced to comply with the superseding 1968 Building Code or subsequent construction code requirements for such systems, may be continued in compliance with the earlier provisions of the New York City Fire Prevention Code, notwithstanding the fact that such refrigerating system would not be allowed or approved under the Fire Code.
(C) An LPG storage facility that was lawfully designed and installed on a premises pursuant to Fire Prevention Directive 2-88, and that had not been required by reason of alteration or otherwise to be replaced or discontinued, may be continued in compliance with said directive, notwithstanding the fact that the quantity of LPG storage authorized by said directive exceeds the quantity that would be allowed or approved under the Fire Code.
(2) Conditions or facilities not approved prior to July 1, 2008 that are pre-existing facilities. Any condition or facility lawfully existing on July 1, 2008, that had not been regulated under the New York City Fire Prevention Code or New York City Building Code prior to such date, and which are not allowed and could not be approved under the Fire Code or the rules, may be a pre-existing condition or facility within the meaning of this section, if:
(A) prior to June 30, 2008 or other effective date of the applicable Fire Code provision, the condition or facility was in compliance with the requirements of any applicable Federal, New York State or other laws, rules or regulations; and
(B) at the time the condition or facility was established, it was substantially in compliance with national or industry standards or practices.
(3) Conditions or facilities lawfully existing prior to July 1, 2008 that were not pre-existing facilities but become pre-existing facilities as a result of subsequent Fire Code amendments. Any condition or facility which was lawfully existing on June 30, 2008, and which was allowed or approved under the Fire Code may become a pre-existing facility by a Fire Code amendment or rule that no longer allows or authorizes approval of the condition or facility. For example:
(A) An existing underground liquid motor fuel storage tank designed and installed after April 2000 pursuant to provisions of Subchapters 8, 9 and 11 of the New York City Fire Prevention Code and former rule § 21-20 that are substantively identical to the provisions of the Fire Code and the rules, was not a pre-existing facility within the meaning of former FC 102.3 and this section and was required to comply with the applicable provisions of the Fire Code and the rules. However, effective March 30, 2014, the Fire Code's design and installation requirements for underground liquid motor fuel storage and dispensing systems were amended. As a result, an underground liquid motor fuel storage tank designed and installed in accordance with these former Fire Prevention Code and rule provisions would not be allowed or approved under the Fire Code. Accordingly, such an underground liquid motor fuel storage tank, which was not previously a pre-existing facility, became a pre-existing facility pursuant to FC 102.3 and 102.4 on March 30, 2014, provided that, on March 29, 2014, its design and installation remained in compliance with the design and installation requirements under which it was originally approved or allowed.
(4) Conditions or facilities designed or installed under the Fire Code (on or after July 1, 2008) that are pre-existing facilities. Any condition or facility designed and installed on or after July 1, 2008, pursuant to provisions of the Fire Code, or which was not regulated by the Fire Code between July 1, 2008 and the date of a Fire Code amendment, may be a pre-existing facility if the condition or facility was lawfully existing on the day prior to the effective date of an amendment of the Fire Code. For example:
(A) A fire apparatus access road dead end turnaround designed and installed in compliance with the Fire Code requirements for such turnarounds in effect prior to March 30, 2014 (as set forth in former FC 503.2.5), and lawfully continued until March 29, 2014, is a pre-existing facility that may be continued in compliance with the laws, rules, regulations and permit conditions applicable at the time such turnaround was lawfully allowed or approved, notwithstanding the fact that the turnaround would not be allowed or approved under the amended Fire Code, which increased the required size of the turnaround.
(B) A below-grade paint spray booth designed and installed in compliance with the Fire Code requirements for paint spray booths in effect prior to March 30, 2014 (as set forth in former FC 1504), and lawfully continued until March 30, 2014, is a pre-existing facility which may be continued in compliance with the laws, rules, regulations and permit conditions applicable at the time such paint spray booth was lawfully allowed or approved, notwithstanding the fact that such below-grade paint spray booth would not be allowed or approved under the amended Fire Code, which prohibited below-grade paint spray booths.
(e) Consolidation of Provisions of Law Applicable to Pre-Existing Facilities and Conditions. Provisions of the New York City Fire Prevention Code and the rules in effect prior to the enactment of the Fire Code effective July 1, 2008, and provisions of the Fire Code and the rules in effect prior to the amendment of the Fire Code effective March 30, 2014, including requirements governing the design and installation of pre-existing facilities, and the manufacturing, storage, handling and use of materials in pre-existing facilities under conditions that would not be allowed or approved under the Fire Code, are consolidated in 3 RCNY Chapter 83, as follows:
(1) The third and fourth characters of the number of each section of 3 RCNY Chapter 83 correlate to the Fire Code chapter with that number. For example, 3 RCNY § 8309-01 refers to pre-existing fire protection systems, which are governed by FC Chapter 9. The provisions of law consolidated in each such section are those applicable to pre-existing facilities and conditions relating to a material or facility governed by that Fire Code chapter.
(2) The provisions of law consolidated in each such section have been abridged to delete operational and maintenance requirements, or design and installation requirements that are allowed or approved under the Fire Code, as to which compliance with the Fire Code is required. Deletions are indicated by asterisks (***).
(3) Any amendments to the provisions of law consolidated in each such section are indicated by underlining, and, if terms defined in the Fire Code or rules are used, by italics.
(f) Other Provisions of Law Applicable to Pre-Existing Facilities and Conditions. Pre-existing facilities and conditions shall comply with all applicable laws, rules and regulations, including provisions of law not consolidated in 3 RCNY Chapter 83.
(g) Projects In Progress.
(1) Approved facilities completed prior to January 1, 2010. The design and installation of a facility, the construction of which was completed and/or approved for use or occupancy by the Department of Buildings on or after July 1, 2008, and which would not be allowed and could not be approved under the applicable provisions of the Fire Code and the rules, shall be deemed a pre-existing facility under the following circumstances and subject to the following conditions:
(A) The design of the facility shall have been approved by the Department of Buildings and a work permit issued by that agency for the construction thereof prior to July 1, 2008;
(B) The design of the facility to be constructed was in compliance with all applicable provisions of the Fire Prevention Code and Fire Department rules in effect at the time such work permit was issued; and
(C) Construction of the facility is completed and its use and occupancy approved prior to January 1, 2010.
(2) Approved facilities completed prior to January 1, 2011. The design and installation of a facility otherwise eligible to be deemed a pre-existing facility pursuant to 3 RCNY § 102-01(g)(1), except that construction of the facility will not be completed, and/or its use and occupancy will not be approved, prior to January 1, 2010, shall be deemed a pre-existing facility under the following circumstances and subject to the following conditions:
(A) A showing satisfactory to the Department that compliance with the applicable provisions of the Fire Code and rules would be an undue hardship; and
(B) Compliance with approved measures to ameliorate the fire safety concerns arising from non-compliance with the Fire Code and rule design requirements constituting the undue hardship; and
(C) Construction of the facility is completed and its use and occupancy approved prior to January 1, 2011, except that such deadline may be extended by modification upon a satisfactory showing that construction could not be reasonably completed by such date, and the construction continues to be authorized under the work permit issued by the Department of Buildings.
(3) Approved facilities completed prior to September 30, 2015. The design and installation of a facility, the construction of which was completed and/or approved for use or occupancy by the Department of Buildings on or after March 30, 2014, and which would not be allowed and could not be approved under the applicable provisions of the Fire Code and the rules, shall be deemed a pre-existing facility under the following circumstances and subject to the following conditions:
(A) The design of the facility shall have been approved by the Department of Buildings and a work permit issued by that agency for the construction thereof prior to March 30, 2014;
(B) The design of the facility to be constructed was in compliance with all applicable provisions of the Fire Code and Fire Department rules in effect at the time such work permit was issued; and
(C) Construction of the facility is completed and its use and occupancy approved prior to September 30, 2015.
(4) Approved facilities completed prior to September 30, 2016. The design and installation of a facility otherwise eligible to be deemed a pre-existing facility pursuant to 3 RCNY § 102-01(g)(3), except that construction of the facility will not be completed, and/or its use and occupancy will not be approved, prior to September 30, 2016, shall be deemed a pre-existing facility under the following circumstances and subject to the following conditions:
(A) A showing satisfactory to the Department that compliance with the applicable provisions of the Fire Code and rules would be an undue hardship; and
(B) Compliance with approved measures to ameliorate the fire safety concerns arising from non-compliance with the Fire Code and rule design requirements constituting the undue hardship; and
(C) Construction of the facility is completed and its use and occupancy approved prior to September 30, 2016, except that such deadline may be extended by modification upon a satisfactory showing that construction could not be reasonably completed by such date, and the construction continues to be authorized under the work permit issued by the Department of Buildings.
(5) Approved facilities completed prior to October 15, 2023. The design and installation of a facility, the construction of which was completed and/or approved for use or occupancy by the Department of Buildings on or after April 15, 2022, and which would not be allowed and could not be approved under the applicable provisions of the Fire Code and the rules, shall be deemed a pre-existing facility under the following circumstances and subject to the following conditions:
(A) The design of the facility shall have been approved by the Department of Buildings and a work permit issued by that agency for the construction thereof prior to April 15, 2022;
(B) The design of the facility to be constructed was in compliance with all applicable provisions of the Fire Code and Fire Department rules in effect at the time such work permit was issued; and
(C) Construction of the facility is completed and its use and occupancy approved prior to October 15, 2023.
(6) Approved facilities completed prior to October 15, 2024. The design and installation of a facility otherwise eligible to be deemed a pre-existing facility pursuant to 3 RCNY § 102-01(g)(5), except that construction of the facility was not completed, and/or its use and occupancy was not approved, prior to October 15, 2023, shall be deemed a pre-existing facility under the following circumstances and subject to the following conditions:
(A) A showing satisfactory to the Department that compliance with the applicable provisions of the Fire Code and rules would be an undue hardship; and
(B) Compliance with approved measures to ameliorate the fire safety concerns arising from non-compliance with the Fire Code and rule design requirements constituting the undue hardship; and
(C) Construction of the facility is completed and its use and occupancy approved prior to October 15, 2024, except that such deadline may be extended by modification upon a satisfactory showing that construction could not be reasonably completed by such date, and the construction continues to be authorized under the work permit issued by the Department of Buildings.
(Amended City Record 9/20/2023, eff. 10/20/2023)