New York City’s Construction Shutdown: What if Your Project Is Essential or Necessary to Protect Public Health and Safety? What if Your Project Needs to be Shut Down?

Seyfarth Synopsis: In the face of Governor Cuomo’s shutdown of most construction projects in New York, New York City’s Department of Buildings is permitting certain “essential” and “emergency” projects to continue through the filing and approval of Essential Construction Requests. This Legal Update provides information about the types of construction projects that have been allowed to continue, the procedure to follow to have a project classified as an Essential Active Construction Project, and requirements if a project must be shut down. 

As reported in a Legal Update we issued on March 30, 2020, in response to the ongoing COVID-19 public health emergency, New York’s Governor Andrew Cuomo shut down all construction projects other than projects in “essential” categories (including roads, bridges, transit facilities, utilities, hospitals and health care facilities, affordable housing, and homeless shelters) and “emergency” construction projects (including projects necessary to protect the health and safety of a building’s occupants or to make an ongoing project “safe” to shut down the construction site). 

New York City’s Department of Buildings (“NYC DOB”) has issued guidance to clarify the governor’s executive order and guidelines issued by Empire State Development Corporation (“ESDC”). NYC DOB defines projects necessary to protect the health and safety of a building’s occupants as:  (i) emergency work “ordered” by the NYC DOB; (ii) restoration of essential services, including plumbing (hot and cold water), mechanical (heating, ventilation, and air conditioning), gas, electricity, and other essential utility services; and (iii) work needed to address “any condition requiring immediate corrective action that severely affects life, health, safety, property, or significant number of persons.” NYC DOB also confirms that construction projects may continue if it would be unsafe to stop them in their current status, but only to bring the project site to a condition where it would be safe to shut down. 

NYC DOB has established a procedure to identify construction projects exempt from the state-wide shutdown. In order to perform such essential or emergency construction work in New York City, the applicant of record (specifically, the Registered Design Professional) must file an application to perform essential construction work through the website DOB NOW (http://www.nyc.gov/dobnow). Such Essential Construction Requests must identify the scope of work to be performed and must include information about why the work is essential and falls within one of the identified categories, why the work meets NYC DOB’s guidelines for an “emergency” project, or what work remains to be performed in order to secure the construction site so that the project may safely be shut down. NYC DOB excludes from the requirements the installation of construction fences and sidewalk sheds; such work that is already permitted may proceed and new work, once permitted, does not require approval of an Essential Construction Request. DOB NOW includes a process for appealing a denied Essential Construction Request. 

NYC DOB’s website includes a map depicting, as of the time of posting of this Legal Update, almost 1,500 “Essential Active” construction sites, including affordable housing projects (approximately 370), approved work sites (approximately 800, designated as essential, emergency, and/or affordable housing projects), homeless shelters (2), hospital or health care facilities (approximately 250), and utility work (approximately 65). More than two-thirds of these “Essential Active” projects are located in Brooklyn and Manhattan. 

NYC DOB also indicates that local law compliance inspections and tests for elevators, façades, and boilers will continue during the construction shutdown, since such inspections and tests are necessary to protect the health and safety of building occupants. Elevator projects in occupied buildings, including modernization and repair of currently out-of-service elevators, may continue if such work is necessary to maintain safe elevator service, regardless of whether there are other operational elevators in a building.  Façade restoration work may be performed to correct conditions labeled as “unsafe” or to address any condition “requiring immediate corrective action.” All such projects must file an Essential Construction Request, and workers on these projects must continue to comply with directives for maintaining a clean and safe work environment, including complying with social distancing guidelines.

NYC DOB also provides requirements for construction projects shut down by Governor Cuomo’s orders. Specifically, NYC DOB mandates that the project owner ensure the site is secured and maintained during the time of the construction shutdown, including, at a minimum, weekly safety inspections to ensure compliance with NYC DOB requirements and applicable laws and regulations. Inspections are also required the day of and after severe weather events in the city. Reports of the inspections are to be filed with NYC DOB electronically. The project owner is required to maintain all utilities required for site maintenance, to maintain active permits, to maintain all required construction signage, and to safely store all project materials. Site protection and scaffolding is to be safely secured and maintained. Construction equipment is to be safely stored and maintained. For projects suspended during the excavation or foundation phase, NYC DOB identifies additional requirements, including for support of excavation shoring and underpinning. And, with regard to suspended construction projects involving an existing building with residents and tenants, the project owner is required to continue the project’s tenant and occupant protection plans.

The COVID-19 crisis continues to evolve, generating issues and solutions on a daily basis. Seyfarth attorneys are closely monitoring these issues and solutions, and are issuing alerts and guidance daily to keep you informed and to help protect your interests and mitigate your risks. For more information about the myriad of topics that Seyfarth is following, visit our COVID-19 Resource Center for more information.