On March 30, 2020, Gov. Andrew M. Cuomo issued Executive Order 202.13 which, among other things, modified Executive Order 202.6 to clarify that only certain construction activities will be considered exempt from in-person restrictions as of March 28, 2020 and authorizing Empire State Development Corporation to determine which construction projects are “essential” and exempt from the in-person workforce prohibition.
Empire State Development’s guidance1 provides that:
This guidance appears to put the burden of enforcement on municipalities, which themselves are operating at reduced capacity, and leaves several questions unanswered:
To the extent that construction is permitted as “emergency construction,” this will require a fact-specific analysis about whether the project is necessary to protect the health safety and welfare of the occupants or if it would be unsafe to allow a project to remain undone. What is unclear is who performs that fact-specific analysis: is it in the discretion of the general or sub-contractor performing the work or is it up to Empire State Development or the municipality to make that determination?
To date, there is no deadline to stabilize sites permitted as emergency construction or indication about how long non-essential construction activities will be prohibited. Requests for designation as an essential function for those projects not covered by Executive Order 202.6 may be made directly to Empire State Development.
The Zoghlin Group PLLC has experience representing municipalities, developers, contractors and property owners. For help understanding your obligations under Executive Order 202.6 and 202.13 as it relates to construction and enforcement, please contact Bridget O’Toole, Esq. at The Zoghlin Group PLLC.
Last updated March 27, 2020 at 11:00 AM
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