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Handling Development Permitting and Inspections During the COVID-19 Pandemic


April 10, 2020 by Steve Butler
Category: Land Use Administration , COVID-19

Handling Development Permitting and Inspections During the COVID-19 Pandemic

Deciding how to handle local permitting and inspections during the COVID-19 pandemic has been a difficult issue for Washington’s local governments. Governor Inslee’s Stay Home-Stay Healthy Order, issued on March 23, 2020, has made it even more challenging. In many cases, development review and inspection staff are working remotely from home, which means that normal work activities are being handled differently and response times may be slower than usual.

This blog post will describe some of the different issues and strategies being used by several communities around Washington (based on information received from a number of local governments throughout our state).

Local Governments’ Response to the “Essential Construction” Order

As many of you already know, the governor issued supplemental guidance on March 25, 2020, adding to his earlier Stay Home-Stay Healthy proclamation, which addressed essential construction. The supplemental guidance states:

In general, commercial and residential construction is not authorized under the proclamation because construction is not considered to be an essential activity.

However, an exception to the order allows for construction in the following limited circumstances: 

  1. Construction related to essential activities as described in the order;

  2. To further a public purpose related to a public entity or governmental function or facility, including but not limited to publicly financed low-income housing; or

  3. To prevent spoliation and avoid damage or unsafe conditions, and address emergency repairs at both non-essential businesses and residential structures…

The governor’s guidance further states that “construction activity must meet social distancing and appropriate health and worker protection measures before proceeding.”

Some communities have been hesitant to determine what constitutes essential construction within their jurisdiction, so instead either: (a) ask a builder/contractor to provide a written explanation about why they believe it to fit in the governor’s definition; or (b) require them to obtain a case-by-case determination from the Governor’s office (using the Essential Business Inquiries form).

Given the governor’s order and supplemental guidance, most local governments view the permitting and inspection process as being an essential activity for the three categories of construction activities mentioned in the guidance, with permitting and inspection staff being regarded as “essential critical infrastructure workers.”

This type of permitting and inspection work should still be undertaken in a safe manner, which is why many, but not all, local governments in Washington State have told their permitting staff to remotely work from home. For those staff who are still going to their workplace or to a jobsite, the use of appropriate health and worker protection measures, such as social distancing, is strongly advised.

The State’s 90/120-Day Development Review Deadlines

State law (RCW 36.70B.080) currently requires that complete project permit applications be processed within 120 days (and 90 days for preliminary plat applications; see RCW 58.17.140). For those communities working with reduced staffing due to the coronavirus emergency, these timelines may difficult to meet (especially if a public hearing is required to be held as part of the review process). Governor Inslee and his staff have been asked to consider “tolling” these statutory deadlines until the coronavirus pandemic has passed, but we don’t know if or when any action will be taken.

If you have a complete application that is already being processed but are not sure you will be able to meet the 90- or 120-day deadline, here are two options for you to consider:

  1. Contact the applicant, explain your situation, and ask them for a mutually agreed upon time extension, per RCW 36.70B.080(3); or
  2. Issue a local emergency order that would “toll,” or hold in abeyance, the 90- or 120-day deadline until the governor’s order has been lifted.

Be sure to check with your legal counsel before making a final decision on which approach to take to meet your review deadlines.

Dealing with Permits and Development Review

For permitting staff working from home, the logistics for accepting applications, reviewing development proposals, and issuing permits have become tricky. It is important that every local government provide clear information to builders, the development community and the public about how you will be dealing with permitting and inspections during the COVID-19 emergency (Here is Port Townsend’s COVID-19 website announcement, which includes a section on development services).

Here is a round up of the various approaches local governments are taking with regards to permits and the development review process.

Accepting applications and reviewing development proposals

Some communities had fortuitously set up online development permit systems, which include the option for application materials to be submitted electronically. Other communities had online systems partially completed or about to be developed. For the latter group, the pandemic has caused many of them to try to get their online systems up and running as soon as possible. Examples of some of the online systems currently being used include MyBuildingPermit.com, TrakIT, Bluebeam, and DropBox (for submittals).

For those communities without an online process in place, they are either asking applicants to mail in or physically drop off their application packets in a designated drop box or eceptacle, so they may be picked up by staff on a daily basis.

Accepting application fees

Most communities with closed permit counters are accepting payment via credit card (either online or taken over the phone) or by mail-in check.

Communicating with applicants

As a substitute for in-person meetings, permitting staff are using Zoom, Skype, GoToMeeting, freeconference.com, and Google Hangouts (this list is for informational purposes only and is not intended as an endorsement of these services). In some cases, they are resorting to the “traditional” practice of talking via telephone call.

Approving projects and issuing permits

In order to be ready when the coronavirus crisis has passed and the governor’s construction proclamation has been lifted, several communities believe it is important to keep accepting and reviewing all permit applications. The actual issuance of permits for non-essential construction is another matter, with some local governments being concerned that an applicant receiving a permit for non-essential work will view it as permission to begin construction. To address this issue, some communities are issuing permits with the express condition that non-essential work cannot be done while a few are holding back the “ready-to-be issued” permits until the governor’s order has been lifted.

For remote development project reviews, permits and project approvals are primarily being issued electronically, either by email or use of an online system.

Holding remote meetings and public hearings

Governor Inslee’s Proclamation 20-28 limits the actions that an agency can put on its agenda during this emergency period to "necessary and routine matters," or matters necessary to respond to the COVID-19 outbreak and the current public health emergency. In response, some local governments have postponed or cancelled land use-related public hearings scheduled to be held by an appointed advisory committee, like the Planning Commission or a Hearing Examiner. Other communities have made the determination that such meetings are “necessary and routine” and are holding them remotely. If you decide to hold a remote meeting/public hearing, consider having whoever presides at the meeting make a statement that the body/Hearing Examiner has determined that the hearing is necessary and routine and state the reasons on the record.

Regarding how to hold public meetings, we follow the Washington Attorney General’s advice that Proclamation 20-28 requires telephonic participation at a minimum, and that a local government cannot opt to do only video or other internet-based streaming. For more information on how to hold remote meetings under the governor’s Stay Home/Stay Healthy Order, see the MRSC blog post Working on Council Guidelines? What About Remote Meeting Attendance? and our FAQ on public meetings.

Approaches to dealing with inspections

Local governments in Washington appear to be limiting inspections to just essential construction projects. Most communities are trying to meet the governor’s social distancing directives in several different ways. Some have inspectors still going out to construction and building sites while practicing social distancing on-site and wearing protective clothing. Other cities, towns, and counties are taking innovative steps to remotely inspect development and construction sites by having the project manager use a smart phone app, such as Facetime or Skype, to show site images and conditions. A few communities are using third parties to provide verification of construction and site conditions.

Conclusion

During the coronavirus pandemic, most communities in Washington State are still operating their permitting and inspection functions, even if only for “essential” development projects. This is a new and different time, and there are often not hard and fast rules upon which local governments can rely. It is important that local decisions about permitting and inspections be made in a reasoned and deliberative manner, in consultation with your legal counsel.

If you are using approaches and strategies not mentioned in this blog post, I would like to hear about them; please email me at sbutler@mrsc.org. Thank you and stay safe!


MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Steve Butler

Steve joined MRSC in February 2015. He has been involved in most aspects of community planning for over 30 years, both in the public and private sectors. He received a B.A. from St. Lawrence University (Canton, New York) and a M.S. in Urban and Regional Planning from the University of Wisconsin-Madison. Steve has served as president of statewide planning associations in both Washington and Maine, and was elected to the American Institute of Certified Planner’s College of Fellows in 2008.

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