Local Law 84: Benchmarking Legislation

Article 309: Benchmarking Energy and Water Use and Disclosure of Energy Efficiency Scores and Grades

(Am. L.L. 2018/033, 1/8/2018, eff. 1/8/2018).

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2018/033.

• 28-309.1 General.

The energy and water use of city buildings and covered buildings shall be benchmarked in accordance with this article.

• 28-309.2 Definitions.

As used in this article, the following terms shall have the following meanings:

BENCHMARK. To input and submit to the benchmarking tool the total use of energy and water for a building for the previous calendar year and other descriptive information for such building as required by the benchmarking tool.

BENCHMARKING TOOL. The internet-based database system developed by the United States environmental protection agency, and any complementary interface designated by the office of long-term planning and sustainability, to track and assess the energy and water use of certain buildings relative to similar buildings.

CITY BUILDING. A building that is more than 10,000 gross square feet (929 m 2 ), as it appears in the records of the department of finance, that is owned by the city or for which the city regularly directly pays all of the annual energy bills, provided that two or more buildings on the same tax lot shall be deemed to be one building.

Exception: The term "city building" shall not include:

1. 1. Any building owned by the city that participates in the tenant interim lease apartment purchase program; or
   2. Any building owned by the city that (i) is 25,000 gross square feet (2323 m 2 ) or less, as it appears in the records of the department of finance, and (ii) participates in a program administered by the department of housing preservation and development.

COVERED BUILDING. As it appears in the records of the department of finance: (i) a building that exceeds 25,000 gross square feet (2323 m 2 ), (ii) two or more buildings on the same tax lot that together exceed 100,000 gross square feet (9290 m 2 ), (iii) two or more buildings held in the condominium form of ownership that are governed by the same board of managers and that together exceed 100,000 gross square feet (9290 m 2 ), or (iv) a city building.

Exceptions: The term "covered building" shall not include:

1. 1. Any building owned by the city that participates in the tenant interim lease apartment purchase program.
   2. Real property classified as class one pursuant to subdivision 1 of section 1802 of the real property tax law.
   3. Real property, not more than three stories, consisting of a series of attached, detached or semi-detached dwellings, for which ownership and the responsibility for maintenance of the HVAC systems and hot water heating systems is held by each individual dwelling unit owner, and with no HVAC system or hot water heating system in the series serving more than two dwelling units, as certified by a registered design professional to the department.

DATA CENTER. A room or rooms used primarily to house high-density computing equipment, such as server racks, used for data storage and processing.

DWELLING UNIT. A single unit consisting of one or more habitable rooms, occupied or arranged to be occupied as a unit separate from all other units within a building, and used primarily for residential purposes and not primarily for professional or commercial purposes.

ENERGY. Electricity, natural gas, fuel oil and steam.

OWNER. The owner of record, provided that "owner" shall be deemed to include: (i) the net lessee in the case of a building subject to a net lease with a term of at least 49 years, inclusive of all renewal options, (ii) the board of managers in the case of a condominium, and (iii) the board of directors in the case of a cooperative apartment corporation.

TENANT. Any tenant, tenant-stockholder of a cooperative apartment corporation, condominium unit owner or other occupant.

(Am. L.L. 2016/133, 10/31/2016, eff. 10/31/2016; Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/126.

 

28-309.3 Benchmarking required for city buildings.

No later than every May first, any city building shall be benchmarked by the agency or entity primarily responsible for the management of such building, in coordination with the department of citywide administrative services with respect to energy use, and with the New York city department of environmental protection with respect to water use. Benchmarking of water use shall not be required unless the building was equipped with automatic meter reading equipment by the New York city department of environmental protection for the entirety of the previous calendar year. The city shall maintain such documents as the department determines are necessary for the purpose of carrying out the provisions of this article.

(Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/126.

 

28-309.4 Benchmarking required for covered buildings other than city buildings.

The owner of a covered building, other than a city building, shall annually benchmark such covered building no later than May first. Benchmarking of water use shall not be required unless the building was equipped with automatic meter reading equipment by the New York city department of environmental protection for the entirety of the previous calendar year. The owner or the owner's representative performing the benchmarking shall consult with the operating staff of the building, as appropriate. Information submitted to the benchmarking tool must be accurate and complete.

Exception: The first mandatory benchmarking for a covered building, other than a city building, that (i) does not exceed 50,000 gross square feet (4645 m 2 ), (ii) is not one of two or more buildings on the same tax lot that together exceed 100,000 gross square feet (9290 m 2 ) and (iii) is not one of two or more buildings held in the condominium form of ownership that are governed by the same board of managers and that together exceed 100,000 gross square feet (9290 m 2 ), shall be completed on or before May first of the first year that commences after the department determines and sets forth in a rule that the utility company providing energy to such buildings will, upon request of an owner, directly upload information necessary to benchmark such buildings.

(Am. L.L. 2016/133, 10/31/2016, eff. 10/31/2016; Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/126.

 

28-309.4.1 Obligation to report energy use for all utility accounts and addresses connected to the building.

The owner shall submit information to the benchmarking tool for all utility accounts and addresses connected to the building, including those for separately metered tenant spaces. The owner shall obtain information for separately metered tenant spaces from the utility. If the utility does not have a program to provide such information, the owner shall make reasonable efforts to obtain such information from the tenant. Tenants shall have the obligation to provide such information.

(Am. L.L. 2016/133, 10/31/2016, eff. 10/31/2016)

 

28-309.4.2 Preservation of documents, inspection, and audit.

An owner of a covered building shall maintain such records as the department determines are necessary for carrying out the purposes of this article, including but not limited to energy and water bills and reports or forms received from utilities and tenants. Where energy use within separately metered tenant spaces is omitted, records shall be maintained documenting the owner's efforts to obtain such information. All records shall be preserved for a period of three years, provided that the commissioner may consent to their destruction within that period or may require that such records be preserved longer than such period. At the request of the department, such records shall be made available for inspection and audit by the department at the place of business of the owner or at the offices of the department during normal business hours.

(Am. L.L. 2016/133, 10/31/2016, eff. 10/31/2016)

 

28-309.4.3 Violations.

It shall be unlawful for the owner of a covered building to fail to benchmark pursuant to section 28-309.4. The commissioner shall classify such violation as a lesser violation. If, upon audit of a benchmarking report, the department finds that information submitted to the benchmarking tool was substantially inaccurate or incomplete, the department may reject the purported benchmarking and the owner shall be liable for a violation of section 28-309.4 as if no benchmarking had been performed.

Exception: Notwithstanding section 28-204.2, no civil penalty shall be imposed on the owner of a covered building for a violation of this section for such covered building if:

1. Such covered building (i) does not exceed 50,000 gross square feet (4645 m 2 ), (ii) is not two or more buildings on the same tax lot that together exceed 100,000 gross square feet (9290 m 2 ), (iii) is not two or more buildings held in the condominium form of ownership that are governed by the same board of managers and that together exceed 100,000 gross square feet (9290 m 2 ), and (iv) is not a city building;
2. Such owner requested, from the department or another agency designated pursuant to section 28-309.11, benchmarking assistance in connection with such building, and such request was made at least 60 days before the due date of the benchmarking report for which such violation was issued; and
3. Such owner corrects such violation within 60 days after the date of the notice of such violation.

(Am. L.L. 2016/133, 10/31/2016, eff. 10/31/2016; Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/126.

 

28-309.5 Direct upload.

Information shall be directly uploaded to the benchmarking tool in accordance with the following:

 

28-309.5.1 Direct upload by a utility company or other source.

The office of long-term planning and sustainability shall encourage and facilitate any utility company or any other source authorized by the office of long-term planning and sustainability to upload directly to the benchmarking tool, as soon as practicable, information necessary to benchmark a building.

(Am. L.L. 2016/133, 10/31/2016, eff. 10/31/2016)

 

28-309.5.2 Direct upload by the department of environmental protection.

The department of environmental protection shall upload directly to the benchmarking tool information on water use at all buildings that were equipped with automatic meter reading equipment by the department of environmental protection for the entirety of the previous calendar year and that are subject to the benchmarking requirements of this article.

(Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/126.

 

28-309.6 Suspension.

The director of the office of long-term planning and sustainability may suspend all or part of the requirement to benchmark pursuant to this article upon a written finding that a technological deficiency in the benchmarking tool precludes compliance with this article. The director of the office of long-term planning and sustainability may lift all or part of any such suspension upon a written finding that such deficiency has been corrected. The office of long-term planning and sustainability shall notify the speaker of the city council, the department, the department of citywide administrative services, the department of environmental protection and the department of finance promptly upon issuing a suspension or lifting a suspension pursuant to this section.

(Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/126.

 

28-309.7 Notification and transmission of information.

The department of finance shall:

1. Annually notify owners of covered buildings of their obligation to benchmark pursuant to section 28-309.4, provided that the failure of the department of finance to notify any such owner shall not affect the obligation of such owner to benchmark pursuant to such section.
2. Notify owners of covered buildings of any suspension or lifting of a suspension pursuant to section 28-309.6.
3. Make available to the department information regarding owners of covered buildings for which no benchmarking information was generated by the benchmarking tool.

 

28-309.8 Disclosure.

The department of finance shall make information generated by the benchmarking tool available to the public on the internet no later than September first of the year in which the covered buildings are benchmarked. Such information shall include, but need not be limited to: (i) the energy use intensity, (ii) the water use per gross square foot, (iii) where available, a rating or score that compares the energy and water use of the building to that of similar buildings, and (iv) a comparison of data across calendar years for any years such building was benchmarked.

Exception: Ratings or scores generated by the benchmarking tool for a covered building that contains a data center, television studio, and/or trading floor that together exceed ten percent of the gross square footage of any such building shall not be disclosed until the office of long-term planning and sustainability determines that the benchmarking tool can make adequate adjustments for such facilities. When the office of long-term planning and sustainability determines that the benchmarking tool can make such adjustments, it shall report such determination to the mayor and the speaker of the city council. Until such determination is made, the office of long-term planning and sustainability shall report biennially to the mayor and the speaker of the city council that the benchmarking tool is unable to make such adjustments.

(Am. L.L. 2016/133, 10/31/2016, eff. 10/31/2016; Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/126.

 

28-309.9 Report.

No later than December 31 of each year, the office of long-term planning and sustainability shall prepare, submit to the mayor and the speaker of the city council, and post on the internet a report reviewing and evaluating the administration and enforcement of this article and analyzing data obtained from the benchmarking tool. Such report shall contain information regarding: (i) the energy and water efficiency of buildings in the city, (ii) the accuracy of benchmarked data and whether there is a need to train and/or certify individuals who benchmark, (iii) compliance with the requirements of this article, (iv) any administrative and legislative recommendations for strengthening the administration and enforcement of this article, (v) the effectiveness of the benchmarking tool in accounting for New York city conditions, including, but not limited to, high density occupancies, use of steam, large building size, and specific high-energy uses such as data centers, television studios, and trading floors, and (vi) such other information and analyses as the office of long-term planning and sustainability deems appropriate.

(Am. L.L. 2016/133, 10/31/2016, eff. 10/31/2016)

 

28-309.10 Rules.

The department, the department of finance and the office of long-term planning and sustainability may promulgate such rules as deemed necessary to carry out the provisions of this article.

 

28-309.11 Benchmarking assistance.

The department or another agency designated by the mayor shall establish a system to receive and respond to requests from owners for assistance with respect to fulfilling the benchmarking requirements of this section. Such assistance may include, but need not be limited to, trainings, the provision of reference guides, and a publicized telephone number and electronic mail address to receive direct questions. The annual notice required by section 28-309.7 shall notify covered building owners that such assistance is available and shall describe how such assistance can be obtained.

(L.L. 2016/133, 10/31/2016, eff. 10/31/2016; Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/126.

 

28-309.12 Energy efficiency scores and energy efficiency grades.

Energy efficiency scores and grades for buildings shall be obtained, assigned and disclosed in accordance with this section.

(L.L. 2018/033, 1/8/2018, eff. 1/8/2018)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2018/033.

 

28-309.12.1 Definitions.

As used in section 28-309.12, the following terms shall have the following meanings:

ENERGY EFFICIENCY GRADE. The term "energy efficiency grade" means, for a covered building, a grade based on an energy efficiency score assigned through the benchmarking tool in accordance with this section as follows:

1. If such score is equal to or greater than 85 the energy efficiency grade shall be A;
2. If such score is equal to or greater than 70 but less than 85, the energy efficiency grade shall be B;
3. If such score is equal to or greater than 55 but less than 70, the energy efficiency grade shall be C;
4. If such score is less than 55, the energy efficiency grade shall be D;
5. If the owner of such building has not complied with section 28-309.12.2, and such owner has had an opportunity to be heard with respect to such non-compliance, the energy efficiency grade shall be F; and
6. If, in accordance with the rules of the department, it is not feasible to obtain an energy efficiency score for such building or if such building is subject to the exception in section 28-309.8, the energy efficiency grade shall be N.

ENERGY EFFICIENCY SCORE. The term "energy efficiency score" means, for a building, the Energy Star rating for such building or a score that assesses the energy use of such building relative to similar buildings that is assigned through the benchmarking tool.

ENERGY STAR RATING. The rating that a building earns using the United States Environmental Protection Agency ENERGY STAR portfolio manager to compare building energy performance to similar buildings in similar climates.

(L.L. 2018/033, 1/8/2018, eff. 1/8/2018; Am. L.L. 2019/095, 5/19/2019, eff. 5/19/2019)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2018/033.

 

28-309.12.2 Energy efficiency score and energy efficiency grade required.

In 2020 and in each calendar year thereafter, an owner of a covered building shall use the benchmarking tool to provide an energy efficiency score for such building to the department in accordance with the rules of the department unless, in accordance with such rules, the building is a type of building for which it is not feasible to obtain an energy efficiency score. In each such year, the department shall issue an energy efficiency grade to the owner in accordance with such rules.

(L.L. 2018/033, 1/8/2018, eff. 1/8/2018)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2018/033.

 

28-309.12.3 Display of energy efficiency score and energy efficiency grade.

Within 30 days after the owner of a covered building obtains an energy efficiency grade, such owner shall post such grade and the energy efficiency score upon which such grade was based in a conspicuous location near each public entrance to such building, in a form and manner established by the department.

Exception: This section shall not apply to posting of the energy efficiency score of a building with an energy efficiency grade of N.

(L.L. 2018/033, 1/8/2018, eff. 1/8/2018; Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2018/033 and L.L. 2021/126.

 

28-309.12.4 Publication of energy efficiency grades and energy efficiency scores.

For each building for which an energy efficiency grade or energy efficiency score is generated pursuant to this section, the department shall make information generated in connection with such grade and score publicly available online by no later than May 1 of the year following such generation.

Exception: This section shall not apply to information generated with respect to a building with an energy efficiency grade of N.

(L.L. 2018/033, 1/8/2018, eff. 1/8/2018; Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2018/033 and L.L. 2021/126.

 

28-309.12.5 Audits.

The department shall, from time to time, audit information submitted for buildings in connection with energy efficiency grades and energy efficiency scores. Such audits shall occur at least annually and shall involve appropriate sample size of buildings, as determined by the department.

(L.L. 2018/033, 1/8/2018, eff. 1/8/2018)

Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2018/033.

 

28-309.13 Outreach to building owners regarding making energy efficiency improvements.

Each year, the department shall provide information regarding energy efficiency improvements to owners of buildings of all sizes, including buildings connected to gas lines. Such information shall also be posted on the department's website. The information shall include but not be limited to making energy efficiency improvements including the use of fossil fuel alternatives, the benefits of energy efficiency improvements, compliance with the New York city energy conservation code, and compliance with other laws aimed at reducing building energy use and carbon emissions.

(L.L. 2020/093, 9/27/2020, eff. 3/26/2021)

 

Q1: What buildings are subject to the Local Law 84 Benchmarking Legislation?

A1: The law applies to commercial and residential buildings that exceed 50,000 gross square feet, two or more buildings on the same tax lot that together exceed 100,000 gross square feet, and two or more buildings held in the condominium form of ownership that are governed by the same board of managers and that together exceed 100,000 gross square feet. However, certain buildings are exempt such as those participating in the tenant interim lease apartment purchase program and buildings not more than three stories consisting of a series of attached, detached or semi-detached dwellings.

 

Q2: What are the responsibilities of a building owner under this law?

A2: Building owners are required to annually benchmark their buildings no later than May first. They must submit information for all utility accounts connected to the building, including those for separately metered tenant spaces. They must also keep records of energy and water bills and reports for at least three years, and these records must be available for inspection and audit by the department.

 

Q3: What happens if a building owner fails to benchmark as per the legislation?

A3: Failure to benchmark is considered unlawful and is classified as a lesser violation. If the information submitted to the benchmarking tool is found to be significantly inaccurate or incomplete, the owner will be liable for a violation as if no benchmarking had been performed.

 

Q4: What is the process for direct upload of information to the benchmarking tool?

A4: Information can be directly uploaded to the benchmarking tool by a utility company, other authorized source, or by the Department of Environmental Protection for water use at all buildings equipped with automatic meter reading equipment.

 

Q5: What does it mean to have an Energy Efficiency Score and Energy Efficiency Grade?

A5: An Energy Efficiency Score is a rating obtained from the benchmarking tool that assesses the energy use of a building relative to similar buildings. The Energy Efficiency Grade is derived from this score and helps classify a building's energy efficiency on a scale from A (most efficient) to D (least efficient). If it's not feasible to obtain a score or the building is subject to the exception in section 28-309.8, the energy efficiency grade shall be N.

 

Q6: How is the Energy Efficiency Score and Grade displayed and made public?

A6: Building owners are required to post the Energy Efficiency Grade and the corresponding score near each public entrance to the building within 30 days of obtaining the grade. Information related to these grades and scores is made publicly available online by the Department of Finance by September first of the year in which the buildings are benchmarked.