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NYC Department of Buildings Issues New Guidance on Local Law 97 Adjustment Applications

On Friday April 9, the New York City Department of Buildings (DOB) issued its first Local Law 97 Adjustments Application Filing Guide. DOB began accepting adjustment applications on April 12, 2021 via its DOB NOW: Safety website.

Local Law 97 of 2019 (LL97) requires most New York City buildings over 25,000 square feet to meet increasingly stringent carbon emissions caps beginning in 2024. Emissions cap adjustments are designed to temporarily raise building emissions limits to allow additional time for compliance. The Adjustment Applications Filing Guide covers adjustment applications for two of the four emissions cap adjustments available to building owners under Local Law 97: the adjustment for excessive emissions due to a special circumstance (NYC Code § 28-320.8), and the adjustment for not-for-profit hospitals and healthcare facilities (NYC Code § 28-320.9). Two other adjustments (for financial hardship and legal/physical constraints) are not covered by the guide, and LL97 does not establish due dates for these adjustments. DOB plans to address these adjustments in later guidance.

Adjustment for excessive emissions due to a special circumstance such as energy-intensive uses or high density occupancy

Adjustment applications for the first category, excessive emissions due to a special circumstance, are due on June 30, 2021, with an application fee of $2,450. The adjustment is good for 5 years and allows owners to reduce emissions to 70 percent of 2018 emissions rather than meeting the 2024 caps.

To be eligible for this adjustment:

  • Building owner must show that in 2018, building emissions exceeded 2024 caps by over 40 percent; and
  • Exceedance of 2024 caps must be attributable to energy-intensive uses such as 24-hour operations, health and safety operations, high density occupancy, or energy-intensive communications or industrial operations; and
  • Owner must prove that the building energy performance is equivalent to that of a similar building in compliance with the 2014 New York City Energy Conservation Code (NYCECC); and
  • Owner must submit a plan to reach full compliance with 2030 limits.

Adjustment for not-for-profit hospital and healthcare facilities

Adjustment applications for the second category, not-for-profit hospital and healthcare facilities, are due on July 21, 2021, with an application fee of $335. For the 2024-2029 compliance period, the adjustment will equal 85 percent of the applicable 2018 building emissions. For the 2030-2034 compliance period, the adjustment will drop to 70 percent of the applicable 2018 building emissions.

To be eligible for this adjustment:

  • Building owner must demonstrate that the not-for-profit building classification was in existence on November 15, 2019, and for each year that an adjustment is used as the basis for compliance reporting.
    • For the purposes of NYC Code § 28-320.9, not-for-profit classification includes spaces owned or occupied by a not-for-profit hospital or healthcare facility.
    • For commercial owners seeking an adjustment for space leased to a not-for-profit healthcare organization, adjustments can only be approved for leased spaces that are separately metered for electricity.

The Adjustment Applications Filing Guide provides further details on how to demonstrate compliance with specific items, such as how DOB will determine that a building has achieved equivalence with the 2014 NYCECC, how to establish a building’s 2024 and 2030 emissions limits, and how to document a building’s 2018 energy use.  The guide also explains the supporting materials that DOB requires to be submitted with an adjustment application, including an excel worksheet documenting building energy use and emissions, emissions reduction plan report and stacking diagram of the building. The guide does not clarify certain aspects of the adjustment requirements, such as what level of high density occupancy would qualify a building for the special circumstances adjustment.

DOB will review adjustment applications and may issue objections. Responses to all objections must be uploaded in DOB NOW no later than October 31, 2023, to be resolved by December 31, 2023. Applications not resolved by December 31, 2023 may result in a denial of the application.

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