Clarity Or Confusion: The Ever Evolving Guidance Concerning Permissible Essential Construction In New York

On April 9, Empire State Development issued updated guidance that appears to expand the definition of what is considered “essential construction” for the purposes of exemption from the work-at-home requirements under Executive Order 202.6.  E.O. 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).

Over the past two weeks since the signing of E.O. 202.6, a number of State and local agencies have issued guidance concerning what is deemed “essential” for the purposes of the exemption.  Thursday’s guidance issued by ESD (a) adds an exemption for construction on “existing (i.e. currently underway) projects of an essential business,” and (b) defines affordable housing to include projects “where a minimum of 20% of the residential units are or will be deemed affordable and are or will be subject to a regulatory agreement and/or a declaration from a local, state, or federal government agency.”

The exemption added for existing projects for essential businesses will allow construction to continue if, under existing guidance, the business or service for which the construction project is being performed itself qualifies as an essential business or service.

The clarified definition of affordable housing, however, adds some confusion for projects located within the City of New York, since existing New York City Department of Buildings (“DOB”) guidance defines affordable housing as those projects constructing affordable inclusionary housing or mandatory inclusionary housing under the New York City Zoning Resolution or where 30% or more of the residential units are affordable.  Unless and until the DOB updates or amends its guidance, it is unclear how the City will treat those non-MIH projects that meet the State’s definition of affordable housing, but do not include 30% affordable units.

Keep an eye on this blog for updates as they unfold.