Bay Area Counties’ Extended Shelter-In-Place Order Imposes Strict Limits on Development and Construction

On March 31, 2020, the public health officers of Alameda County, Contra Costa, Marin, San Francisco, San Mateo and Santa Clara counties released a revised Shelter in Place Order (the “March 31 SIP Order”). The March 31 SIP Order takes effect at 11:59 p.m. on March 31 and will continue to be in effect until 11:59 p.m. on May 3, 2020, or until it is extended, rescinded, superseded, or amended. The March 31 SIP Order supersedes Alameda’s initial March 17, 2020 order and is intended to ensure the maximum number of people shelter in their places of residence, while allowing essential services and activities to continue, but severely restricting all non-essential activities, in order to slow the spread of COVID-19. As of March 18, 2020, eleven Bay Area and neighboring counties issued SIP orders, including the six counties covered by the March 31 SIP order, Monterey, Santa Cruz, and Sonoma counties. Each county issued its own order, but they are nearly identical in content. However, Napa County has taken its own path, recently amending its Shelter at Home order. In its updated April 22 order, Napa includes in the definition of “Essential Businesses” all “[w]orkers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction), including but not limited to surveyors and workers conducting site investigations.” The Napa order expressly permits these construction workers to leave their residences to work on construction projects, subject to social distancing requirements, and does not distinguish between residential projects (with or without affordable housing) and commercial projects.

While the March 31 SIP Order sets forth a variety of measures meant to protect the health and safety of county residents, including requiring individuals to remain in their homes except for “essential” activities and businesses, it also has practical implications for current and future development and construction in the affected counties.

According to section 13(a)(iv) of the March 31 SIP Order, individuals may leave their residences to perform work for an “Essential Business.” Among several other categories, “Essential Businesses” include only specific types of “Construction,” namely:

    1. Projects immediately necessary to the maintenance, operation, or repair of Essential Infrastructure;
    2. Projects associated with Healthcare Operations, including creating or expanding Healthcare Operations, provided that such construction is directly related to the COVID-19 response;
    3. Affordable housing that is or will be income-restricted, including multi-unit or mixed-use developments containing at least 10% income-restricted units;
    4. Public works projects if specifically designated as an Essential Governmental Function by the lead governmental agency;
    5. Shelters and temporary housing, but not including hotels or motels;
    6. Projects immediately necessary to provide critical non-commercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantaged, and persons with special needs;
    7. Construction necessary to ensure that existing construction sites that must be shut down under this Order are left in a safe and secure manner, but only to the extent necessary to do so; and
    8. Construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary, or habitable to the extent such construction or repair cannot reasonably be delayed. (March 31 SIP Order at Section 13(f)(v).)

While Essential Businesses, including those exempted types of Construction set forth above, are “strongly encouraged to remain open” per the March 31 SIP Order, all “Essential Businesses are directed to maximize the number of employees who work from home” and “may only assign those employees who cannot perform their job duties from home to work outside the home.” Furthermore, all “Essential Businesses” are now required to “prepare, post, and implement a Social Distancing Protocol at each of their facilities at which they are maintaining operations,” as set forth in section 13(h) of the March 31 SIP Order.

It is arguable that permitting, inspection, and other services are also “necessary” for “Construction” and therefore exempt, including plan checks, issuance of building and grading permits, inspections for permits and certificates of occupancy, utility hook-ups, and recordation of necessary documents such as mechanics liens, tax liens, easements, financing instruments, covenants, conditions and restrictions, and title transfers. The definition of “Essential Businesses” also includes “Service providers that enable residential transactions (including rentals, leases, and home sales), including, but not limited to, real estate agents, escrow agents, notaries, and title companies, provided that appointments and other residential viewings must only occur virtually or, if a virtual viewing is not feasible, by appointment with no more than two visitors at a time residing within the same household or living unit and one individual showing the unit (except that in person visits are not allowed when the occupant is still residing in the residence).” (March 31 SIP Order at Section 13(f)(x).) Professional services, such as legal, notary, or accounting services, when necessary to assist in compliance with non-elective, legally required activities, are also considered “Essential Businesses.” (Section 13(f)(xxiv).)

Regardless, under the initial and the March 31 SIP Orders, all the these services must comply with social distancing policies, including maintaining a six-foot distance from other individuals, to the extent possible. On March 19th, Governor Gavin Newsom issued a statewide order requiring all Californians to remain in their homes, except as needed to “maintain continuity of operations of [16 identified] federal critical infrastructure sectors.” These sectors do not specifically identify residential or commercial development project workers as critical, unless their work directly supports the emergency response. Further guidance regarding these critical sectors can be found here. The Governor’s order remains in place until further notice. The March 31 SIP Order acknowledges that it “adopts in certain respects more stringent restrictions addressing the particular facts and circumstances in [the respective county], which are necessary to control the public health emergency as it is evolving within the County and the Bay Area. Where a conflict exists between this Order and any state public health order related to the COVID-19 pandemic, the most restrictive provision controls.” (Section 12.)

In any event, developers can likely expect delays in the processing of land use entitlements, including zoning applications, building permit applications, and inspections unless the project involves one of the Construction types considered an “Essential Business” as listed above. The City of Oakland, for example, as of March 17, closed its Planning and Building counters to the public until further notice, including its permit counters. Oakland Planning and Building has since clarified the scope of this closure on its website. Specifically, the department will prioritize the following: “housing projects, particularly affordable housing projects and mixed-use projects that include housing; emergency repairs; continuing review of existing projects already submitted to the city; [and] other inspections as resources and time allow.”

However, developers should check with their local jurisdiction regarding the effect on government services as this is a rapidly evolving situation and different jurisdictions are approaching it in a variety of ways. Applicants also might find that planning desks, to the extent they are open, are not accepting new planning applications for non-residential development, so as to avoid conflicts with deadlines set forth under the Permit Streamlining Act. Presumably agency staff will continue processing existing applications to meet applicable deadlines, though the SIP Order could be interpreted to disallow this activity, thereby creating tension with state law.

Although under the March 31 SIP Order, individuals may only leave their residences to perform Essential Activities, such as those activities related to health or medical care, grocery shopping, or to care for family members, there is no prohibition against performing or accessing “Essential Governmental Functions,” per section 13(d). The Alameda County SIP Order does not define “Essential Governmental Functions,” but allows the governmental entity performing those functions to determine which functions are essential. The City of Oakland has stated that it will maintain such Essential Governmental Functions in accordance with the SIP Order, but did not clearly provide which services, beyond first responders, it deems as “essential.” Oakland has closed its Civic Center buildings, including City Hall, to the public, except by special appointment or for attendance at public meetings (most of which have also been cancelled). Additionally, Oakland has stated that most of its public service counters have switched to online/phone/appointment access only, but no information is provided for the Planning and Building Department. In contrast, San Francisco County’s SIP order defines Essential Government Functions as services needed to ensure the continuing operation of the government and to provide for the health, safety, and welfare of the public. In all counties, Essential Governmental Functions shall also comply with social distancing restrictions.

Section 13(d) of the SIP Order gives great deference to local governments to define Essential Government Functions. As such, it is possible, if not very likely, that the processing of development applications will cease or greatly slow down. It is advisable to check with the local jurisdiction on processing times and related closures.

Additionally, in response to the Shelter-in-Place Orders, many of the local superior courts have closed or greatly reduced operations, and thus, on-going litigation related to development projects is likely to be delayed. Every court has unique rules regarding closures, status of hearings, and acceptance of filings. Furthermore, on April 6th, the California Judicial Council issued an emergency rule of court tolling all statutes of limitation for civil actions in state courts from April 6, 2020 until 90 days after the statewide state of emergency is lifted. The relevant statutes of limitations would then begin running again from the date 90 days after the end of the state of emergency.

For reference, links to the eleven county Shelter-in-Place Orders can be found at the following links: Alameda, Contra Costa, Marin, Monterey, San Benito, San Francisco, Santa Clara, Santa Cruz, San Mateo, Sonoma, and Yolo. Napa County recently amended its March 20 “Shelter-at-Home” Order with a new order which took effect on Wednesday, April 22, and can be found here.

Separately, on March 12, Governor Newsom issued Executive Order N-25-20 (the “Executive Order”) which suspends provision of the Brown Act and Bagley-Keene Act to allow for greater flexibility to hold public meetings via telephone conference. The public is advised to check with the website of any relevant jurisdiction to determine if, and in what manner, a public meeting is being conducted.

Wendel Rosen LLP will update this post as further related orders are issued and our attorneys are available to answer any questions you may have regarding these orders.