Clarity Begins to Emerge Concerning Permissible Essential Construction In New York

A number of state and local agencies have issued guidance on the ban on non-essential construction that was announced by Governor Cuomo on March 27, 2020.  Friday’s amendment to the guidance regarding work-at-home requirements under Executive Order 202.6 bans all construction in the State except for projects deemed “essential,” which the State says includes “roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters.”  Also permitted to continue is work on non-essential projects that is necessary to protect the health and safety of building occupants, as well as work that would be unsafe if it remained incomplete (although that work may continue only to the point where it is deemed safe to shut down).

This guidance raised numerous questions as to what work met these criteria, including projects that are partly market-rate and partly affordable, and projects involving environmental remediation.  The New York City Department of Buildings (“DOB”) and Mayor’s Office of Environmental Remediation (“OER”) both issued guidance on Monday, and the New York State Department of Environmental Conservation (“DEC”) issued guidance today.

Among the more significant items in the DOB and OER guidance is the clarification of the definition of affordable housing as those projects constructing public housing, or private developments with affordable inclusionary housing or mandatory inclusionary housing under the New York City Zoning Resolution, or sites where 30% or more of the residential units are affordable.  The DOB guidance also provides additional information concerning the types of construction that are permitted to continue in the City, and it invites members of the public and construction workers on sites where they believe non-essential construction is being performed to direct their complaints to 311 for DOB enforcement.

According to the OER guidance, all work on non-essential OER remediation projects that have not yet broken ground must be postponed or suspended until the State-wide moratorium on construction work is lifted.   Work on non-essential OER projects that have broken ground must also be suspended unless stopping the work would compromise public health.

Every owner of a site where work is expected to continue should be aware that OER is requiring that BY THE CLOSE OF BUSINESS TODAY, APRIL 1, a statement must be submitted to the site’s OER Project Manager explaining the basis for the project’s continued operation and the length of time that work is expected to continue.

The release issued by the New York State DEC contains general guidance concerning the types of work that DEC deems essential on projects overseen by the DEC Division of Environmental Remediation, which includes remedial construction activities at sites that DEC has determined pose a significant threat to public health and/or the environment.  Also deemed essential work by DEC is:

  • Completion of remedial construction already under way at non-significant threat sites as necessary to ensure site safety and prevent exposure to site contaminants;
  • Operation and maintenance activities for active remedial systems that are necessary for the continued protection of human health and the environment;
  • Interim remedial measures to address imminent human exposures and/or threat of significant contaminant migration; and
  • Spill response actions.

Whether investigation of petroleum and hazardous waste releases can continue will be determined by DEC on a case-by-case basis based upon whether the work is deemed to be necessary to address potential human exposures and/or threat of significant contaminant migration.

As the DEC guidance reminds us, “the response to the Covid-19 pandemic is fluid,” and the rules are being refined day by day.  Keep an eye on this blog for updates as they unfold.