Cuddy & Feder LLP continues to closely monitor state and federal responses to the outbreak of COVID-19 pertaining to the land use, zoning, development, and telecommunications fields. The New York State Department of State, Division of Building Standards and Codes “Guidance for Code Enforcement Personnel Relating to the Governor’s Executive Orders During the COVID-19 Public Health Emergency was released April 4, 2020 (Guidance for Code Enforcement Personnel). The Guidance for Code Enforcement Personnel summarizes and clarifies several provisions from New York’s COVID-19 Executive Orders (E.O.) that relate to building and code enforcement.
Below are a few key points highlighted in the Guidance for Code Enforcement Personnel:
Code Enforcement Officers are “essential”
E.O. 202.4 tasks municipalities with determining which personnel are “essential” and therefore exempt from personnel restrictions. The Department of State confirms that code enforcement personnel “should be deemed essential.” This determination is based on the Empire State Development Corporation’s guidance which includes “building code enforcement” as an essential service and the provisions of E.O. 202.11 whereby code enforcement officers are authorized to enforce E.O. restrictions on occupancy and operations as violations of the Uniform Code or other local building codes. This effectively mandates code enforcement officers to continue operating during this public health emergency, though the Department of State recommends the use of electronic or other remote means, were feasible, to reduce in-person contact.
Legal Citations for Restricted Occupancy and Operations
The guidance specifies the information that should be included within any legal citations (appearance ticket, notice of violation, etc.) issued for violation of an E.O. and provides an example of such citation. The necessary information includes:
- notification of the exact nature of the violation; and
- proof to the Court that the violation is a violation of an E.O., that the violation is deemed to be a violation of the Uniform Code, and therefore the violating party is subject to the penalties proscribed in the Executive Law.
The Guidance for Code Enforcement Personnel refers to the provisions of E.O. 202.13 which modifies E.O. 202.6 by indicating that only “certain construction” (rather than merely “construction” as stated in E.O. 202.6) is “essential.” The guidance refers to the Empire State Development Corporation materials for information on what construction is “essential” (i.e. roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters).
Suspension of Code Provisions for Certain Emergency Measures
The Guidance for Code Enforcement Personnel advises that E.O. 202.5 suspends state and local codes, regulations, and laws “to the extent necessary to allow, upon approval by the Commissioner of Heath or the Commissioner of Office for People with Developmental Disabilities, as applicable, the temporary changes to physical plant, bed capacities, and services provided; the construction of temporary hospitals locations and extensions; the increase in and/or exceeding of certified capacity limits; and the establishment of temporary hospital locations.”