Processing Housing Construction Projects Under State and Local Shelter-in-Place Orders

Governor Issues Statewide Shelter-in-Place Order

After declaring a State of Emergency due to the COVID-19 pandemic on March 4, 2020, Governor Newsom issued Executive Order N-33-20 on March 19, 2020. The statewide Order directed all California residents to stay home, except for workers in 16 “critical infrastructure sectors.” Construction was not included in these original 16 sectors. However, on March 22, 2020 the State Public Health Officer issued an updated list of “essential workforce” that are exempt from the March 19 Order. The list includes workers who support the “construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction),” along with plumbers, electricians, and other workers necessary to maintain the “essential operation of construction sites and construction projects.”

In an April 2, 2020 briefing, the Governor reaffirmed that California is allowing housing construction to continue during the pandemic. He also clarified that local governments have a legal right to set tighter restrictions on construction. Several jurisdictions have exercised this authority to limit construction to narrower categories of projects.

Bay Area Counties Issue, Then Revise More Restrictive Requirements

On March 31, 2020, the counties of Marin, Santa Clara, San Mateo, Alameda, Contra Costa, and San Francisco, and the City of Berkeley, issued virtually identical directives halting most construction projects within their jurisdictions, including the incorporated cities within each county, until May 3, 2020. The orders designated several categories of construction projects that could still move forward during the counties’ broader shelter-in-place requirements, including “[a]ffordable housing that is or will be income-restricted, including multi-unit or mixed-use developments containing at least 10% income-restricted units.”

On April 29, 2020, the Bay Area jurisdictions issued new orders which, among other things, lifted these restrictions on construction to allow all commercial and residential projects that comply with the Governor’s March 19, 2020 Order and with specific protocols for “small” and “large” construction. Small projects (10 or fewer units) must designate a COVID-19 Supervisor in charge of enforcing these protocols; large projects (more than 10 units) must have a Safety Compliance Officer in charge of implementing these protocols and a Third-Party Jobsite Safety Accountability Officer with first-aid training. The protocols do not apply to home construction by owners themselves or members of their household.

Below are some of the issues that jurisdictions have encountered while continuing to process construction applications under the shelter-in-place orders.

Complying with the Permit Streamlining Act and Other Deadlines

Several state statutes require jurisdictions to decide whether to approve or deny a project within specific timeframes, and failure to act within these timeframes can result in a project being “deemed” approved. The current circumstances thus have put many jurisdictions in the difficult position of having to press forward with processing applications in spite of significant resource shortages and changes to how the public can be heard.

In a March 22, 2020 letter, the League of California Cities urged the Governor to extend the deadlines applicable to pending construction projects in the Permit Streamlining Act, Housing Accountability Act, Subdivision Map Act, and the California Environmental Quality Act by 120 days if any of these deadlines for a project is set to expire during the State of Emergency, or if the project was submitted during the State of Emergency. To date, the Governor has not taken steps to suspend any of these statutory deadlines.

In most cases, jurisdictions have discretion to suspend or waive any deadlines in their local codes for acting on permit applications or commencing construction under permits that have already been issued; state law also authorizes jurisdictions to extend the time to issue a building permit, in certain circumstances. Some jurisdictions are going a step further and adopting ordinances to temporarily suspend automatic deemed-complete and approval deadlines, including appeal deadlines, for all land use, subdivision, and zoning applications. Although no reported cases have considered such measures, the current circumstances may make courts sympathetic to local governments if the measures are challenged. 

Other jurisdictions are focusing on negotiating with applicants to voluntarily extend the state statutory deadlines, where they apply. Jurisdictions taking this approach should ensure that any agreements with applicants are in writing. Jurisdictions should also explain to applicants that it is in the jurisdiction’s, applicant’s, and public’s interest to delay any hearing until after the shelter-in-place requirement is lifted, to allow the open airing of public opinion—especially for projects that have caused significant controversy in the community.

Waiving Local Requirements for Application Completeness

Many jurisdictions impose specific requirements on project applications before a project is considered “complete.” A common requirement is that story poles must be erected on project sites before these applications will be considered complete. Because shelter-in-place restrictions may make erecting story poles or complying with other local requirements more challenging, these requirements may create bottlenecks in the project review process.

As a result, some jurisdictions have considered granting case-by-case waivers of their requirements for application completeness, such as allowing digital renderings instead of physical story poles. Jurisdictions that opt for a waiver approach to their completeness requirements should develop written criteria clearly describing the types of projects to which the requirement applies (e.g., single-family residences or additions of a certain square footage), and the circumstances under which the jurisdiction will consider a waiver. For requirements normally intended to demonstrate a project’s scale to nearby residents, jurisdictions should encourage or require applicants to get sign-off from neighbors before allowing a waiver.

Maintaining Up-to-Date FAQs on Public Websites

Due to frequently changing directives at the state and local levels, jurisdictions should ensure that their public websites maintain up-to-date information regarding allowed construction, including processing deadlines. An FAQ can also explain the jurisdiction’s approach to questions left open by the state and local shelter-in-place rules.

For more information, contact SMW attorney Joseph D. "Seph" Petta.

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