New York City Department of Buildings Provides Guidance on Essential v. Non-Essential Construction Projects, Including Permissible Affordable Housing Projects
March 31, 2020 by Michael H. Bauscher, Christopher Rizzo and Karen E. Meara
On March 30, 2020, the New York City Department of Buildings (“DOB”) issued guidance to owners and contractors regarding enforcement of New York’s restrictions on non-essential construction, as set forth in New York State’s Executive Order 202.6 and related interpretive guidance issued by Empire State Development (“ESD”). (We summarized ESD’s guidance in a previous advisory, available here.)
Pursuant to DOB’s guidance, permissible construction projects “permitted by the NYC Department of Buildings or otherwise regulated by the NYC Construction Codes and the NYC Electrical Code” are limited to the following types of projects:
- Emergency construction, which DOB defines as follows:
a. “Project necessary to protect the health and safety of the occupants:
i. Emergency work ordered by the Department;
ii. Restoration of essential services – heat, hot water, cold water, gas, electricity, or other utility services; or
iii. Work necessary to address any condition requiring immediate corrective action that severely affects life, health, safety, property or significant number of persons.
b. Project required to continue to the extent it would be unsafe to allow work to remain undone. Such project may continue only until it is safe to shut the site.”
- Essential construction, which DOB defines as follows:
b. Hospitals or health care facilities;
c. Transitional and/or Homeless shelters;
d. Affordable housing: Construction work on public housing, or a private or multiple dwelling or real property that is a new building (NB) or that is 100% vacant; or is work on unoccupied public housing units for the designation as housing for specific populations (i.e. shelter set aside, domestic violence referrals), or work on the exterior to address emergency conditions requiring immediate corrective action, set forth in Section 1(a)(iii) or within public housing, correction of critical systems for seasonal preparedness for the 2020-21 heating season of an existing public housing building. Construction work on a private or multiple dwelling or real property that is a new building (NB) or that is 100% vacant that is now used or will be converted to such use: (i) For the provision of affordable inclusionary housing or mandatory inclusionary housing pursuant to the New York city zoning resolution; or (ii) Where no less than 30% of the residential units are subject to a regulatory agreement, restrictive declaration, or similar instrument with a local, state, or federal governmental entity or a local housing authority in a city with a population of one million or more;
e. Other essential construction as approved by the Department.”
- “Work that is limited to a single worker, who is the sole employee/worker on a job site.”
As of March 31, 2020, owners seeking permission to perform emergency or solitary work must submit an Essential Construction request with DOB via the online form available here. An Essential Construction request should also be submitted to seek a determination as to whether a project is covered by DOB’s catch-all provision (i.e., “other essential construction as approved by the Department”). This firm recommends that owners and contractors only seek permission pursuant to the catch-all if there is some nexus to one of the permissible types of projects listed above or there is an identifiable safety risk that supports continuing construction.
Additionally, an Essential Construction request must be submitted to proceed with an initial work permit application (PW2) for jobs in approved status. However, DOB has specified that “antenna, construction fence, curb cut, and sidewalk shed work types are exempt and can proceed without submission of an Essential Construction request.”
For projects that need to be suspended, construction sites must be secured and maintained pursuant to the requirements set forth in DOB’s Buildings Bulletin 2020-004, which is available here.
Finally, DOB has indicated that “[p]ermits already in effect, are required to remain active until the end of the term for which they were issued and must be renewed for as long as work remains suspended. There are no changes to the permit renewal process and all applicable fees apply.” However, although the permits would be in effect, this would not provide any authorization to continue work unless one of the essential exemptions applies. Additionally, “[a]ll After Hours Variance (AHV) permits will be rescinded” and “[i]nitial AHVs can only be requested for jobs that have an approved Essential and Emergency Construction request.” Initial AHV applications for those approved projects must be submitted at a borough office; not via eFiling or DOB NOW.
It is important to note that DOB has specifically stated that it “will regularly inspect all construction sites to ensure compliance with emergency orders. Non-compliance will result in the issuance of a violation carrying a penalty of up to $10,000.”
The applicable rules and regulations during the COVID-19 emergency continue changing on a daily and sometimes hourly basis. The Carter Ledyard COVID-19 Response Group is monitoring developments in this area and will continue providing updates as the situation evolves.
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For more information concerning the matters discussed in this publication, please contact the author Michael H. Bauscher (212-238-8785, firstname.lastname@example.org), Christopher Rizzo (212-238-8677, email@example.com), Karen E. Meara (212-238-8757, firstname.lastname@example.org), or your regular Carter Ledyard attorney.
Carter Ledyard has created a COVID-19 Response Group to monitor the evolving legal landscape, address client questions and ensure client compliance with the laws and regulations issued in response to the COVID-19 pandemic. The Carter Ledyard COVID-19 Response Group consists of Jeffery S. Boxer (212-238-8626, email@example.com), Judith A. Lockhart (212-238-8603, firstname.lastname@example.org), Bryan J. Hall (212-238-8894, email@example.com), Alexander G. Malyshev (212-238-8618, firstname.lastname@example.org), Melissa J. Erwin (212-238-8622, email@example.com), and Leonardo Trivigno (212-238-8724, firstname.lastname@example.org). Clients should contact the attorneys listed above or their regular CLM attorney for any questions concerning legal obligations arising from the COVID-19 pandemic.