By Ronald Williams
Residential construction workers are now considered “essential critical infrastructure workers” during the COVID-19 response, according to a March 28, 2020 advisory memorandum from Christopher C. Krebs, Director of the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency.
Since Pennsylvania and many other states have based restrictions on the operation of “non-essential” businesses on CISA’s guidance, the update may provide homebuilders in Pennsylvania, and elsewhere, an opportunity to petition the state to restart construction.
In his memorandum, Krebs identified workers supporting the construction of housing, including those supporting government functions related to the building and development process such as inspections, permitting and planning review services that can be modified to protect the public’s health but fundamentally could continue and serve the construction of housing (e.g., allow qualified private third-party inspections in case of government shutdown).
Earlier in March, Governor Wolf issued an order severely limiting residential construction. Wolf’s order has had a negative impact, since it had few exceptions. Many interpreted the order as prohibiting any residential construction whatsoever. In fact, in the question and answer section of the governor’s website on the restrictions, the Department of Community and Economic Development has provided guidance allowing residential construction under certain circumstances. For example, in answer to questions 17 and 20 DCED stated the following:
- “17. (Formerly #16) I am a contractor engaging in emergency repairs who received an exemption or was told that I do not require an exemption. May I perform non-essential work? Your exemption, or general authority to conduct emergency repairs, is limited to performing those tasks necessary to provide repair services to customers. No new construction or non-emergency rehabilitation or remodeling may be performed.”
- “20. (Formerly #19) May I complete my customer’s residential construction project? (Amended 3/26/2020) Residential construction projects that are substantially complete may continue to completion. Projects that are ‘substantially completed’ are those projects that have been issued a final occupancy permit. For all other residential construction projects limited activities may continue to the extent necessary to stabilize the site, temporarily prevent weather damage, or make emergency repairs only. No new residential construction projects may be started.”
In one case, the DCED actually granted a blanket exemption for construction to a developer. However, many developers have sought relief and have been denied, even though they established the continued intention of carrying on activities in a manner consistent with all Centers for Disease Control and Prevention health guidelines and intended to provide essential infrastructure services. In its guidance, DCED stated: “In making waiver determinations, the Department of Community and Economic Development (DCED) is maintaining consistency with an advisory issued by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) entitled ‘Identifying Critical Infrastructure During COVID-19.’”
The CISA director’s memo provides fundamental recognition that residential construction can and should proceed within the Commonwealth of Pennsylvania with the expressed approval of Governor Wolf. If you have submitted a waiver and it has been denied, you may want to consider resubmission since the process does not appear to afford any appeal or reconsideration. Alternatively, you may wish to wait and see what new guidance the Commonwealth offers in the coming days.
Ronald Williams is a Co-Chair of Fox Rothschild’s Construction Practice and is based in the firm’s Exton office. He can be reached at 610-458-4994 or email@example.com.