COVID-19 Update: San José Issues Construction Guidance to Clarify March 31 County Order
The City's highest priority is to ensure compliance with the Santa Clara County Public Health Order to slow and reduce the spread of COVID-19 and protect our most at-risk population.
Given the broad range of construction projects underway or planned within San José, the City is providing guidance relative to the
County Order
(section 13.f.v. of the Order) for construction projects. It is the City's understanding that the intent of the order is to limit construction activities to:
- Work that ensures existing construction sites are safe and secure; and
- Work that responds to the current health crisis in the County.
As such, applicants/contractors must be able to demonstrate that any continued work during the current Shelter In Place Order meets one of the above criteria or that the operation qualifies as essential infrastructure as listed under “Construction Projects That are Allowed.”
Applicants/contractors who wish to proceed with construction projects must demonstrate that the project is consistent with the Order through the submittal of appropriate documentation, including but not limited to, consultant reports, affidavits, and/or client contracts. The City's willingness to issue permits or inspections will have no bearing on potential future enforcement of the County Order, and the burden of proof for compliance will remain with the applicant.
Construction Projects That Are Allowed
As of March 31, 2020, only the following types of construction projects may continue within San José:
- Projects immediately necessary to the maintenance, operation, or repair of Essential Infrastructure, which is defined as airports, utilities (including water, sewer, gas, and electrical), oil refining, roads and highways, public transportation, solid waste facilities (including collection, removal, disposal, and processing facilities), cemeteries, mortuaries, crematoriums, and telecommunications systems (including the provision of essential global, national, and local infrastructure for internet, computing services, business infrastructure, communications, and web-based services), provided that these projects carry out those services or that work in compliance with Social Distancing Requirements as defined by the County Order.
- Projects associated with Healthcare Operations, including creating or expanding Healthcare Operations, provided that such construction is directly related to the COVID-19 response;
- On-site affordable housing that is or will be income-restricted, including multi-unit or mixed-use developments containing at least 10% income-restricted units;
- Public Works projects if specifically designated as an Essential Governmental Function by the City;
- Shelters and temporary housing, but not including hotels or motels;
- Projects immediately necessary to provide critical non-commercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantaged, and persons with special needs;
- Construction necessary to ensure that existing construction sites that must be shut down under this Order are left in a safe and secure manner, but only to the extent necessary to do so; this includes but is not limited to the completion of work to ensure seismic stability, dewatering, and maintenance to ensure that the project remains safe and secure; and
- Construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary, or habitable to the extent such construction or repair cannot reasonably be delayed. The burden of proof for compliance with the County Order will remain with the applicant.
- Other construction activities are not exempted and must comply with the Order. The Order allows for minimum basic operations at non-essential construction sites. You may send employees to the construction site to secure the site, maintain security, and to ensure that it does not sustain damage. You may only continue construction on the project to the extent it is necessary to prevent damage to the project, e.g., ensuring seismic stability, dewatering, and maintenance to ensure that the project remains safe and secure.
County Order versus State Order:
The Governor's March 19, 2020 Executive Order directing all Californians to stay home except for essential needs complements the Santa Clara County Public Health Officer's existing order, issued on March 16, 2020. While the State has the right to explicitly preempt County orders, the Governor's Executive Order does not directly preempt the County order and therefore it is the City's interpretation that the more conservative County Order remains in effect.
Applying the County Order to
Construction Project Scenarios
1. Can I start a new construction project for critical infrastructure, such as a cell site or data center?
Only projects completing work necessary to the operation and maintenance of "Essential Infrastructure" are permitted. An applicant would need to demonstrate through appropriate documentation that the new facility project is required to maintain or support current communications infrastructure through the duration of this crisis.
2. I obtained a Planning approval for a new construction project for an essential business. Can I next get a building permit?
To the extent that staff are available, the City will review plans and issue building permits throughout the duration of the Shelter-in-Place Order; however, this may not mean that a project may begin construction before May 3. Only private construction projects for on-site affordable housing, shelters, and temporary housing, or healthcare facilities directly related to the COVID-19 response may begin new construction projects.
3. Can I continue tenant improvements on a grocery store?
No. Commercial businesses, including most essential businesses, are not included in the exemptions for commercial construction and may not proceed.
4. Can I continue construction on my accessory dwelling unit (ADU)?
No. Market-rate housing units, including ADUs, are not included in the exemptions for residential construction and may not proceed with construction.
