In March of this year, New York State issued restrictions on the operation of all businesses, providing some exceptions for businesses viewed as “essential.” Construction services were included as “essential.” Later in the month, seemingly in response to public outcry, the State narrowed the scope of permitted construction services. See our earlier blog here.
In accordance with authority bestowed by Executive Order, NYC Department of Buildings (DOB) issued guidance for the shut down of non-essential projects. See our earlier blog on this guidance here.
As part of its authority to issue enforcement guidelines and additional restrictions, DOB issued public notice that, among other things, narrowed the scope of affordable housing work that DOB will permit to continue. Specifically, DOB stated that “only affordable housing projects with a minimum of 30% of the units being affordable that are new building construction, or a 100% vacant building conversation can continue during this suspension of non-essential construction.” Cole Schotz was informed that DOB’s intention was to narrow the scope of permitted construction beyond the limits set as the State level, definitively establishing the threshold of affordable housing required per building. The advice by DOB, only permitting new builds, was apparently under review as of last week, with DOB considering whether to permit work in buildings that meet the 30% threshold but were already built and occupied.
It should be noted that DOB’s enforcement authority is within New York City only.
DOB provided additional clarifications and direction with its guidance on affordable housing, including confirming that an individual working alone on a project is not subject to restriction, that fencing, antenna and sidewalk shed work is permitted. DOB confirmed that assisted-living facilities qualify as essential construction. A copy of DOB’s guidance is located here.
In a step that will provide certainty to companies, DOB has now made available a map of active construction sites within NYC that are deemed permitted essential or emergency work. It is not clear whether DOB views this list as exclusive. It is likely that this list will be updated as project owners submit to the DOB for recognition as essential, emergency, or solitary work.
Cole Schotz has been advised that DOB inspectors will be out in force to make sure only permitted construction is continuing. To those considering obtaining letters from attorneys purporting to justify continuing work, the advice Cole Schotz received is that inspectors would not be considering any such letters. Notwithstanding, it is always advisable to consult with counsel regarding any questions on compliance. Any company seeking a definitive decision on their project can also apply to DOB for treatment as essential.
The current restrictions are expected to be in place for another two weeks, with further direction anticipated from the State at that time.