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Washington’s Restriction on Construction Illustrative for Oregon Businesses
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

By Armand Resto-Spotts, Attorney

On March 23, 2020, Governor Kate Brown issued an executive order mandating all Oregonians stay home to the furthest extent possible, except to undertake essential activities.  The order identified businesses that are to remain closed until the order is lifted, and others that can remain open.  Specifically, construction activities and sites were not required to shut down so long as the business designates an officer to implement and enforce social distancing requirements. 

This decision stands in stark contrast to Washington state, where Governor Jay Inslee, after issuing the state’s shelter-in-place order on the same day, issued a Construction Guidance Memorandum, declaring that commercial and residential construction is not authorized under the order because neither is an “essential activity.”  The memorandum provided very narrow exceptions for construction that is related to essential activities identified in the order, activities related to a public purpose, including publicly financed low-income housing projects, and other activities to prevent spoliation and avoid damage and unsafe conditions.

The actual practical and legal scope of Washington’s restriction on construction is fairly unclear at the moment.  However, the memorandum does provide an illustrative example for Oregon construction-related businesses of what may be next.  As Washington businesses scramble to ascertain and interpret the Governor’s memorandum, Oregon businesses should take the precautionary approach today and be prepared for a similar situation.

Foremost, consider what the status is for ongoing development projects.  Many Washington entities are quickly looking to weatherize open construction sites for an unknown period of inactivity.  Others are looking to finish nearly completed work that if left unattended, may create unsafe conditions—for instance, leaving open pits for foundation work—or possibly impact contract requirements, such as tenancy dates.  

At this proactive stage, Oregon businesses should take stock and prioritize their projects.  For instance, if a development is in the nascent stages, it may be worth pooling resources and time toward another project that is further in completion.  Figuring out which projects could be the most vulnerable if a Washington-like restriction were to come down in Oregon today may be the ultimate difference between maintaining some semblance of business operations into the summer and being put on hold altogether.  

Additionally, Oregon businesses would be wise to line up their records, collect documentation related to ongoing projects, and begin ascertaining what position they will need to take with local governments and other public officials should certain development work be plenarily halted as in Washington.  Organize communications and other municipal records that demonstrate the importance of certain projects—for example, records that speak to the “public importance” of constructing more middle- to low-income housing units.  Collect design and engineering records for development sites that would clearly demonstrate the “degree” of completion needed to adequately protect a site, if it should go inactive for a period of time. 

The news changes by the hour, and given this nation’s nascent stage of COVID-19 mitigation measures, a prudent business owner should not be simply reacting, but proactively preparing for what comes next.  Our northern neighbor’s measures provide a close—and very likely—picture of what may be coming down the line for Oregon.

Armand Resto-Spotts is an attorney in the Jordan Ramis PC land use and real estate development practice groups. Contact him at armand.resto-spotts@jordanramis.com or (503) 598-7070.

Thank you for your interest in this article. The information contained in this article is for the general interest of the reader and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact an attorney in our land use and development practice group.