Impacts of the Bay Area Shelter-In-Place Orders on Development and Related Litigation

Wendel Rosen LLP has updated this post. Visit Bay Area Counties’ Extended Shelter-In-Place Order Imposes Strict Limits on Development and Construction for the latest orders issued.

As of March 18, 2020, eleven Bay Area and neighboring counties have issued Shelter-in-Place orders, including Alameda, Contra Costa, Marin, Monterey, San Francisco, Santa Clara, Santa Cruz, San Mateo, and Sonoma counties. Each county issued its own order, but they are nearly identical in content. As an example, the Shelter-in-Place Order issued by Alameda County (the “SIP Order”), along with those of six other Bay Area counties, took effect at 12:01 a.m. on March 17, 2020 and continues until 11:59 p.m. on April 7, 2020, unless extended or rescinded. The issuance of the SIP Order is intended to ensure the maximum number of people self-isolate, while allowing essential services and activities to continue, in order to slow the spread of COVID-19. While the 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 10(c) of the SIP Order, individuals may leave their residences to provide any services or perform any work necessary to the operations of maintenance of “Essential Infrastructure.” Essential Infrastructure includes, but is not limited to, “public works construction, construction of housing (in particular affordable housing or housing for individuals experiencing homelessness), airport operations, water, sewer, gas, electrical, oil refining, road and highways, public transportation, solid waste collection and removal, internet, and telecommunications systems.” It is arguable that permit, inspection and other services are also “necessary” to “the construction of housing” 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, but counties may see this differently and suspend these actions entirely. Regardless, under the SIP Order, all the these services must comply with social distancing policies, including maintaining a six-foot distance from other individuals, to the extent possible.

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 public works construction, the construction of housing (potentially including mixed use developments that include housing), or one of the other specific “Essential Infrastructure” activities listed above. The City of Oakland, for example, as of March 17th, closed its Planning and Building counters until further notice, including its permit counters. 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 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 10(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 10(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, if not halted completely. For example, the Alameda County Superior Court has closed to the public and will not receive any non-emergency filings between March 17th and April 3rd.  While the court considers these closure dates to be court holidays, it is likely that any statute of limitations’ filing deadlines will be extended just until Monday, April 7th, unless the relevant court extends its closure beyond that date. Similarly, Contra Costa County Superior Court closed as of March 16th and will remain closed until at least April 1st. The court’s press release regarding this closure indicates that the closure will have the effect of being a public holiday, which we expect will extend statutory deadlines only until Thursday, April 2nd, if the court reopens on that date.

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 issued a similar “Shelter-at-Home” Order which takes effect at midnight on Friday, March 20th, and can be found here.

Separately, on March 12, 2020, 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.