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§ 28-320.6.2 Civil penalty for failure to file report.
It shall be unlawful for the owner of a covered building to fail to submit an annual report as required by section 28-320.3.7 on or before the applicable due date. An owner of a covered building subject to a violation for failure to file a report shall be liable for a penalty of not more than an amount equal to the gross floor area of such covered building, multiplied by $0.50, for each month that the violation is not corrected within the 12 months following the reporting deadline; provided, however, that an owner shall not be liable for a penalty for a report demonstrating compliance with the requirements of this article if such report is filed within 60 days of the date such report is due.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019)
§ 28-320.6.3 False statement.
It shall be unlawful to knowingly make a material false statement in a report or other submission filed with the department, pursuant to this article. A violation of this section shall be a misdemeanor and subject to a fine of not more than $500,000 or imprisonment of not more than 30 days or both such fine and imprisonment. A person who violates this section shall also be liable for a civil penalty of not more than $500,000.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019)
§ 28-320.6.4 Penalty recovery.
Civil penalties provided for by this article may be recovered in a proceeding before an administrative tribunal within the jurisdiction of the office of administrative trials and hearings. Administrative summonses returnable to such tribunal for violations of this article may be issued by the department or by an agency designated by the department. Civil penalties provided for by this article may also be recovered in an action by the corporation counsel in any court of competent jurisdiction.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019)
§ 28-320.7 Adjustment to applicable annual building emissions limit.
The department, in consultation with the mayor's office of long term planning and sustainability or any other agency designated by the mayor, may grant an adjustment of the annual building emissions limit applicable to a covered building in existence on the effective date of this article or for which a permit for the construction of such building was issued prior to such effective date, provided that the owner is complying with the requirements of this article to the maximum extent practicable.
   1.   Such an adjustment may be granted upon a specific determination that all of the following conditions in items 1.1 through 1.3 are met:
      1.1.   Capital improvements are necessary for strict compliance with the limit set forth in section 28-320.3 and it is not reasonably possible to make such improvements due to (i) a constraint imposed by another provision of law including but not limited to designation as a landmark, landmark site, interior landmark, or within a historic district pursuant to chapter 3 of title 25 of the administrative code, or (ii) a physical condition of the building or building site including but not limited to lack of access to energy infrastructure, space constraints, or lack of access to a space within a building covered by a lease in existence on the effective date of this section;
      1.2.   The owner has made a good faith effort to purchase greenhouse gas offsets to comply with section 28-320.3 but a sufficient quantity is not available at a reasonable cost; and
      1.3.   The owner has availed itself of all available city, state, federal, private and utility incentive programs related to energy reduction or renewable energy for which it reasonably could participate.
   2.   Such an adjustment may be granted upon a specific determination that all of the following conditions in items 2.1 through 2.4 are met:
      2.1.   The cost of financing capital improvements necessary for strict compliance with the limit set forth in section 28-320.3 would prevent the owner of a building from earning a reasonable financial return on the use of such building or the building is subject to financial hardship as defined in this article. In evaluating the ability of an owner to earn a reasonable financial return, the department may consider future savings expected from such capital improvements;
      2.2.   The owner is not eligible for any program funded by the city or enabled by a local law that provides financing for the purpose of energy reduction or sustainability measures. Proof of ineligibility for financing must be demonstrated by rejection from any such program funded by the city or enabled by a local law or an affidavit explanation why such owner could not reasonably participate in such programs;
      2.3.   The owner has made a good faith effort to purchase greenhouse gas offsets or renewable energy credits to comply with section 28-320.3 but a sufficient quantity is not available at a reasonable cost; and
      2.4.   The owner has availed itself of all available city, state, federal, private and utility incentive programs related to energy reduction or renewable energy for which it reasonably could participate.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019; Am. L.L. 2019/147, 7/27/2019, eff. 11/15/2019)
§ 28-320.7.1 Effective period.
An adjustment granted pursuant to item 1 of section 28-320.7 may be effective for a period of not more than three calendar years. An adjustment granted pursuant to item 2 of such section may be effective for a period of not more than one calendar year.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019)
§ 28-320.7.2 Application.
An application for such an adjustment shall be made in the form and manner determined by the department and certified by a registered design professional.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019)
§ 28-320.8 Adjustment to applicable annual building emissions limit for calendar years 2024 through 2029.
The department may grant an adjustment of the annual building emissions limit for calendar years 2024 through 2029 applicable to a covered building in existence on the effective date of this article where such covered building emissions in calendar year 2018 exceeds the building emissions limit as prescribed by section 28-320.3.1 by more than 40 percent, as reported to the department by a registered design professional. The adjustment shall result in a required building emissions limit that is 70 percent of the calendar year 2018 building emissions for the covered building. Such adjustment may be granted where all of the following conditions in items 1 through 3 are met:
   1.   The owner of the covered building demonstrates that the building emissions in excess of the building emissions limit is attributable to special circumstances related to the use of the building, including but not limited to 24 hour operations, operations critical to human health and safety, high density occupancy, energy intensive communications technologies or operations, and energy-intensive industrial processes;
   2.   The owner of the covered building demonstrates that the energy performance of the covered building is equivalent to a building in compliance with the New York city energy conservation code in effect on January 1, 2015; and
   3.   The owner of the covered building has submitted a plan to the department setting forth a schedule of alterations to the covered building or changes to the operations and management of the covered building sufficient to ensure that the covered building will be in compliance with the annual building emissions limits for calendar years 2030 through 2034, as required by section 28-320.3.2.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019; Am. L.L. 2019/147, 7/27/2019, eff. 11/15/2019)
§ 28-320.8.1 Effective period.
An adjustment granted pursuant to section 28-320.8 may be effective for the reporting years 2025 through 2030, as prescribed by section 28-320.3.7, provided that the certificate of occupancy has not been amended after December 31, 2018.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019)
§ 28-320.8.1.1 Extension of effective period.
The commissioner may also grant an extension of the effective period of the adjustment to applicable annual building emissions limit for calendar years 2030 - 2035, as prescribed by section 28-320.3.8. Such extension may be granted upon submission of a schedule of alterations to the covered building or changes to the operations and management of the covered building in accordance with section 28-320.8 sufficient to ensure that by 2035 the covered building will comply with a required building emissions limit that is 50 percent of the reported 2018 building emissions for the covered building.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019)
§ 28-320.8.2 Application.
An application for an adjustment shall be submitted to the department before January 1, 2025 in the form and manner determined by the department and certified by a registered design professional.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019; Am. L.L. 2023/077, 6/11/2023, eff. 6/11/2023)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2023/077.
§ 28-320.9 Adjustment to applicable annual building emissions limit for not-for-profit hospitals and healthcare facilities.
The department shall grant an adjustment of the annual building emissions limits for calendar years 2024 - 2029 and 2030 - 2034 where all of the following conditions in items 1 and 2 are met:
   1.   The building is classified as a not-for-profit hospital, not-for-profit health center, or not-for-profit HIP center, in existence on the effective date of this article; and
   2.   By no later than January 1, 2025, the owner of the covered building submits an application to the department for such adjustment in a form and manner prescribed by the department.
For calendar years 2024 through 2029, the adjustment shall result in the covered building being subject to an emissions limit that is 85 percent of the calendar 2018 building emissions for such covered building. For calendar years 2030 through 2034, the adjustment shall result in the covered building being subject to an emissions limit that is 70 percent of the calendar 2018 building emissions for such covered building.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019; Am. L.L. 2019/147, 7/27/2019, eff. 11/15/2019; Am. L.L. 2023/077, 6/11/2023, eff. 6/11/2023)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2023/077.
§ 28-320.10 Fee schedule.
The department may establish by rule a schedule of fees that shall be paid upon the filing of a report or an application for an adjustment to the applicable building emissions limit pursuant to this article. Such schedule may include a fee for the late filing of a report.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019)
§ 28-320.11 Carbon trading study.
The office of long-term planning and sustainability shall conduct a study on the feasibility of a citywide trading scheme for greenhouse gas emissions from buildings and submit a report and implementation plan with the findings of such study to the mayor and the speaker of the council no later than January 1, 2021. Such study shall include methods to ensure equitable investment in environmental justice communities that preserve a minimum level of benefits for all covered buildings and do not result in any localized increases in pollution. Such study shall also include an approach to a marketplace for credit trading, pricing mechanisms, credit verification, and mechanisms for regular improvement of the scheme. Such study should also consider the reports and recommendations of the advisory board.
(L.L. 2019/097, 5/19/2019, eff. 11/15/2019; Am. L.L. 2023/077, 6/11/2023, eff. 6/11/2023)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2023/077.
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