NOTE: This blog post was updated on March 27, 2020 to reflect the new guidance that was issued by New York State Governor Cuomo’s office today relative to construction.
Despite the crippling impact that the coronavirus is having on all aspects of our daily lives, many developers are moving ahead with their projects, regardless of how far along they are in the development process. However, the need to comply with the emergency executive orders issued by Governor Cuomo, and the general concerns for public safety, have made the land use and development process anything but business as usual. For the time being, the ban on non-essential gatherings of all types has stalled the land use entitlement process for many projects because most local governments have postponed all public hearings. Many municipal offices remain closed to the public, but building and planning department personnel are processing applications and issuing non-discretionary approvals, such as building permits and certificates of occupancy.
For those applications that require a public hearing prior to approval, local officials are struggling to find ways to comply with the statutory procedural requirements of the New York State Open Meetings Law and, at the same time, protect the public’s health, safety, and welfare. This tension is illustrated by the Open Meetings Law’s requirement that all meetings of a public body be open to the general public and the Governor’s executive order banning public gatherings. To address this conflict, Governor Cuomo issued an executive order on March 12, 2020, suspending the Open Meetings Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without allowing the public to be physically present at the meeting. The order also authorizes public bodies to meet remotely by conference call or similar service. A public body that prohibits in-person access to its meetings or conducts a meeting remotely by conference call or similar service, must provide the public the ability to view or listen to such meetings and must record and later transcribe such meetings. Municipalities are currently assessing their technology resources in order to determine the public meeting format they will use during this crisis and are expected to begin holding public hearings in the coming weeks.
Approved projects that are already under construction are also not immune from the impacts of the pandemic. Many projects have been impacted by the Governor’s “New York State on PAUSE” executive order, which mandated the closing of all non-essential businesses statewide and limited the concentration of individuals outside their homes, except in the case of workers providing essential services.
The guidance issued by the Governor on essential businesses under the executive order lists certain businesses and professions that are exempt from the order’s business closure mandate, including certain types of construction work. Originally, only “skilled trades, such as electricians and plumbers” and “other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes” were listed as essential construction businesses in the guidance. This language prompted many questions from both developers and the construction trades who were uncertain whether their projects or work were essential. However, as of March 27, 2020, updated guidance provides the following with respect to construction:
- 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).
- Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and 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.
- For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.