New York City’s Construction Shut Down: What About Façade Projects?

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On Friday, March 27, 2020, Governor Andrew Cuomo effectively shut down, effective April 3, 2020, most construction projects in New York when he reversed his March 18th designation of the construction industry as an “essential business.”  Governor Cuomo’s March 18th executive order had exempted the entire construction industry from New York’s mandatory reduction of businesses’ “in-person” workforce – essentially requiring telecommuting or work from home for businesses deemed “non-essential” – implemented to deal with the COVID-19 disaster emergency.  Revised guidelines issued on March 27, 2020, by the New York State Department of Economic Development d/b/a Empire State Development Corporation (“ESD”) now define only the following categories of construction projects as “essential”:  roads, bridges, transit facilities, utilities, hospitals and health care facilities, affordable housing, and homeless shelters.  Work on these “essential” projects may continue at full capacity.  The guidelines also specify that “emergency” construction projects in the state may remain open even though they do not fall within one of the “essential” categories identified.  Specifically, the guidelines state: 

All non-essential construction must shut down except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site). 

The guidelines make clear that workers on essential and non-essential emergency construction must comply with the Department of Health’s guidance and directives for maintaining a clean and safe work environment, including by observing social distancing when using elevators, taking meals, and entering and exiting the project site.  The guidelines further indicate that construction sites failing to comply with distance and safety best practices would be shut down by the state, city, and/or local governments and subject to fines of up to $10,000 per violation. 

The impact of Governor Cuomo’s executive orders and the ESD’s guidance on New York City’s Local Law 11 or FISP (Façade Inspection Safety Program) construction projects is unclear.  In February 2020, New York City façade inspection and repair requirements were revised to make them significantly more stringent, after falling debris from a Manhattan building killed an architect in December 2019.  Prior to that accident, New York City Department of Buildings (“DOB”) had issued numerous violations requiring the building’s owner to repair the building’s façade.  Although the building’s owner had filed an application to perform the façade repairs, none of the planned work had commenced at the time of the accident. 

The recent changes to the New York City Local Law 11 or FISP requirements include more stringent penalties for failure to comply with safety regulations as well as more demanding inspection and documentation requirements.  The FISP requirements mandate that owners of properties higher than six stories above grade – which includes many of New York City’s numerous condominium and co-operative apartment buildings – must have their exterior walls inspected every five years by a qualified professional engineer or registered architect (a “Qualified Exterior Wall Inspector” or “QEWI”).  Such inspections, called “critical examinations,” are to take place on a “rolling” basis.  After completing the critical examination, the QEWI must file with the DOB a technical report identifying and documenting the façade’s condition, and classifying the building either as “Safe” (no problems and in good condition); “Safe With a Repair and Maintenance Program” (“SWARMP”) (safe, but requires repair/maintenance); or “Unsafe” (problems/defects threaten public safety).  “Unsafe” conditions now include those conditions that the QEWI anticipates would require repair within one year of the critical examination.  If a building is classified as “unsafe,” the building owner must immediately install protection, such as a sidewalk shed, a construction fence, or protective netting, to protect building occupants and the general public, and must repair the unsafe conditions within ninety days of the filing of the technical report.  The building remains classified as “unsafe” until all repairs have been completed and the QEWI has submitted a technical report indicating that the building may be classified as “safe.” 

It remains unclear whether all Local Law 11 work would be classified as “emergency” work under Governor Cuomo’s executive orders and the ESD guidelines.  As noted above, the guidelines include within the definition of “emergency” those projects necessary to protect the health and safety of a building’s occupants and, presumably, the occupants of the City of New York.  On March 30, 2020, the DOB issued guidance to help clarify “essential” vs. “non-essential” construction in New York City, as well as the type of work that would constitute “emergency” construction work.  The DOB guidance indicates that the following “emergency” construction shall be permitted to continue:  emergency work ordered by the DOB; restoration of essential services (such as heat, hot water, cold water, gas, electricity, or other utility services); and work necessary to “address any condition requiring immediate corrective action that severely affects life, health, safety, property, or significant number of persons.”  By definition, Local Law 11 projects are to protect the health and safety of a building’s occupants and the public.  However, it remains unclear whether all Local Law 11 projects would be qualify as “emergency” work under the DOB’s guidelines.  Until further guidance is issued, building owners, managing agents, architects, construction companies, and their attorneys should work together to determine, for each building currently undergoing, or scheduled to undergo, Local Law 11 façade work, whether the existing state of the building would qualify as a condition that “severely affects” the life, health, safety, property, and/or a significant number of building residents, visitors, and the public, given the current status of the Local Law 11 project and the protection currently installed at and around the building.