COVID-19: Effect on New York City Land Use and Development Issues

Kramer Levin Naftalis & Frankel LLP

Updated: April 13, 2020

Kramer Levin’s Land Use Department is continuing to monitor developments with respect to COVID-19 and its impact on land use approvals, site assemblage and development, and the real estate industry in general. We have the following updates:

  • Governor Andrew Cuomo announced on March 27 that non-essential construction in the state will be suspended. The suspension is in furtherance of the governor’s Executive Order 202.8, issued on March 20, which required that 100 percent of the non-essential workforce stay home.
  • Essential construction may continue. Essential construction includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters.
  • Affordable housing construction 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 is considered essential (per guidance updated on April 9).
  • All non-essential construction must shut down except emergency construction (e.g., work 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).
  • At every site, whether essential or emergency non-essential construction, social distancing must be maintained, including for purposes of entry, exit, elevators and meals. Sites that cannot maintain social distance and best safety practices are required to close. Enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.
  • Construction work for these purposes does not include a single worker, who is the sole employee/worker on a job site.

Please see further instructions here https://esd.ny.gov/guidance-executive-order-2026 and here https://www1.nyc.gov/site/buildings/about/covid-19-response.page.

  • Governor Cuomo issued an Executive Order on March 13 that permits government bodies subject to the Open Meetings Law to conduct meetings remotely, provided that the public has the ability to view or listen to the meetings and that the meetings are recorded and later transcribed.
  • The Department of Buildings is instituting temporary rules to drastically reduce walk-in traffic to its offices. Please see further instructions https://www1.nyc.gov/site/buildings/about/covid-19-response.page
  • Mayor Bill de Blasio issued an Executive Order on March 16 suspending ULURP, the landmarks designation process, and other procedures applicable to the city planning and land use review processes, to the extent they impose limitations on the amount of time permitted for the holding of public hearings, the certification of applications, the submission of recommendations, any required or necessary voting, the taking of final actions, and the issuance of determinations. The suspension will have to be renewed every five days but is expected to be renewed for the foreseeable future. It is possible that the City Council will pass legislation to formalize a longer-term suspension of the ULURP process. Per the mayor’s Executive Order, the City Planning Commission will not meet until further notice. Read press releases here.
  • The Department of City Planning (DCP) is also looking at other obligations that exist in the Zoning Resolution and local laws and regulations to assess whether there is a need to suspend or waive any other requirements and, if so, for how long.
  • The DCP has temporarily revised filing protocols. Emailed applications are not considered filed/received until payment and copies have been accepted.
  • The DCP staff is continuing to work on projects that have not yet commenced ULURP, i.e. that are undergoing the “precertification process.”
  • The Board of Standards and Appeals (BSA) is holding its public hearings via livestream.
  • BSA is strongly encouraging applicants to submit application materials electronically. New applications will not be deemed accepted until reviewed and approved by staff. Follow-up submissions on active applications must be submitted electronically. Additional instructions regarding applications and submissions can be found on the BSA’s website here. The BSA is strongly discouraging in-person review of case files and archival materials.
  • BSA is accepting pre-application requests and materials but is currently not holding pre-application meetings.
  • On April 21, 2020, Landmarks Preservation Commission (LPC) will resume public hearings/meetings. LPC will use the video conferencing app Zoom, which will allow for testimony and full public participation. In addition, LPC will livestream the public hearing on its YouTube channel. Additional information can be found on LPC’s website https://www1.nyc.gov/site/lpc/about/covid-19-response.page
  • The Department of Finance Tax Map Unit (TMU) has temporarily revised filing procedures for issuance of temporary and final tax lot numbers:

    • RP602 tentative approval: Email application totaxmapunit@finance.nyc.gov. If approved by staff, TMU will send an invoivce that must be paid in person at 66 John Street, 2ndfloor.

    • Final approval: Where fees have already been paid and tentative tax lots issued, the full application should be emailed for review by TMU totaxmapunit@finance.nyc.gov and include the Borough, Block and Lot and application type (e.g., Queens Block 1539, Lot 100, Lot Apportionment) in the subject line and the body of the email.

  • The Land Use Department has been coordinating with consultants to ensure that all land use applications can continue to progress through the pre-certification process and be timely filed.
  • This is, of course, an evolving situation with rapidly changing guidelines from public health experts, and therefore this information remains subject to change. Please contact the Land Use Department or the relevant land use agencies directly for the latest information.
  • See Real Estate Considerations for additional information that may be relevant to development rights transactions.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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