By: WBG, LLP Published: January 2010

Greener, Greater Buildings Plan: Benchmarking, Lighting Upgrades, and Sub-Metering Requirements

As part of the “Greener, Greater Buildings Plan” legislation, the New York City Council adopted two new laws aimed at reducing the energy used in buildings.  The Council found that non-residential lighting is responsible for about one fifth of the energy used in New York City’s buildings and of the carbon emissions from buildings.  In light of recent improvements in technology, the Council found that energy use can be reduced if data is made available to tenants for comparison and by requiring the installation of lighting upgrades.  The new laws require building performance benchmarking, lighting upgrades, and sub-metering as part of a comprehensive plan to reduce the consumption of energy.  

With some exceptions, these laws apply to “covered buildings” which are defined as: 

i. a building that exceeds 50,000 gross square feet (4645 m2),  

ii. two or more buildings on the same tax lot that together exceed 100,000 gross square feet, or  

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. 

Generally, the laws do not apply to one, two, and three family residential properties.1   

Benchmarking Energy and Water Use (Administrative Code of the City of New York § 28-309.1 
e t a l . )  

This law became effective immediately and requires benchmarking of energy2and water use in city buildings3 and “covered buildings.”  Benchmarking is accomplished by inputting and submitting into an internet-based database system the total use of energy and water for a building for the previous calendar year and other descriptive information for the building4 Owners of “covered buildings” who must request energy use information from tenants of separately-metered, non- dwelling units. Starting with the second calendar year of benchmarking data, the Department of Finance must make the following information, generated by the benchmarking tool, available to the public on the internet: (i) the energy utilization index, (ii) the water use per gross square foot, (iii) where available, a rating 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. 5   

The benchmarking and disclosure requirements commence on the dates listed in the following table:   

Annual Benchmarking and Disclosure Requirements  

















  City Building Covered Building
Benchmarking For Previous Calendar Yr. No later than May 1, 2010 and no later than May 1st thereafter No later than May 1, 2011 and no later than May 1st thereafter
Period to Request Information from Separately-Metered Tenant5    January 1, 2011 to January 31, 2011 and every January 1st to January 31st thereafter
Deadline for Tenant to Provide Information    February 15, 2011 and every February 15th thereafter
Disclosure by the Department of Finance of the Previous Calendar Year’s Benchmarking
No later than September 1, 2011
If Primary Use is not Residential: No later than
Data  and no later than every September 1st thereafter September 1, 2012  and no later than every September 1st thereafter If Primary Use is Residential: No later than September 1, 2013  and no later than every September 1st thereafter

Owners of “covered buildings” must maintain records including energy and water bills and reports or forms received from tenants for a period of three years.  The legislators envision that some or all of the reporting will eventually be uploaded directly by the utility companies or the Department of Environmental Protection (“DEP”).  An owner and/or tenant may not be required to request and report benchmarking information where information is uploaded directly to the benchmarking tool by a utility company or other authorized source.  The DEP must upload directly to the benchmarking tool information on water use at all buildings that are equipped with automatic meter reading equipment by the DEP.    
Lighting Upgrades and Sub-Metering  (Administrative Code of the City of New York §§ 28-310.1 et al. and 28-311.1 e t a l .)   
This law requires that lighting systems of “covered buildings” be upgraded to comply with the standards for new systems set forth in § 805 of the New York City Energy Conservation Code on or prior to January 1, 2025.  The necessary upgrade includes the following elements:  lighting controls (interior lighting control, light reduction controls and automatic lighting shutoff), tandem wiring, exit signs, interior lighting power requirements and exterior lighting.  No upgrade is required for certain lighting systems including, among others, systems within certain dwelling units or common spaces of certain dwelling units (i.e. hallways, 
laundry rooms, or boiler rooms).   
The law also requires that electrical consumption of each covered tenant space must be measured by one or more sub-meters on or prior to January 1, 2025.  No sub-meters are required for certain buildings including, among others, dwelling units classified in occupancy groups R-2 and R-3.  
An owner or lessor must install these sub-meters on or prior to January 1, 2025 and thereafter as new tenant spaces are created within the building.  
Covered tenant spaces include: 
i. A tenant space larger than 10,000 gross square feet (929 m2) on one or more floors of a covered building let or sublet to the same person, or  
ii. a floor of a covered building larger than 10,000 gross square feet (929 m2) consisting of tenant spaces let or sublet to two or more different persons. 
If the covered tenant space is a floor with multiple tenancies, each tenancy that is 10,000 gross square feet (929 m2) or less shall  
i. have a separate sub-meter,  
ii. share a sub-meter with other tenant spaces on the floor, or  
iii. share a sub-meter covering the entire floor. 
Each tenant or subtenant within a covered tenant space that has a sub-meter or sub-meters to measure electrical consumption must be provided with a monthly statement showing the amount of electricity measured by the sub-meter.    
The owner of the building is required to file a report prepared by a registered design professional or a licensed master or special electrician certifying that the electrical upgrade and sub-metering has been completed and complies with § 805.   
The “Greener, Greater Buildings Plan” aims at reducing the consumption of energy by taking advantage of rapid improvements in lighting technology and providing data on electrical energy use to tenants.  Giving building owners almost 
fifteen years to upgrade lighting systems and electrical metering seems reasonable and should avoid any hardship on owners who are required to install the new systems.   
This Legal Alert is supplied for informational purposes only and is not intended to constitute legal advice. You should consult competent legal counsel depending on the specific issues of your matter.  
1Consult Real Property Tax Law § 1802(1) (Class One) for a full definition of exempt property.  
2 “Energy” is defined as electricity, natural gas, fuel oil, and steam. 
3 With some exceptions, a “city building” is a building that is more than 10,000 square feet that is owned by the city or for which the city regularly pays all or part of the annual energy bills.   
4 The United States Environmental Protection Agency’s Benchmarking Tool is described at http://www.epa.gov/eeBuildings/benchmarking/detail/index.html#tool (last viewed March 26, 2010) and available at https://www.energystar.gov/istar/pmpam/ (last viewed March 26, 2010). 
5 Ratings 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. 
6 Not applicable to separately-metered dwelling units.  

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