Real Estate Law

Extraordinary Measures During
Extraordinary Times

June 2020

By Ari B. Pollack*

Like every other economic sector, New Hampshire's residential building trades were deeply affected by the Covid-19 pandemic. Whether considering the issuance of "stay at home" orders, the definition of "essential services", new jobsite safety protocols, or the availability of municipal permits and construction inspections, Covid-19 turned "business as usual" into "business unusual", and seemingly did so overnight. During this period of time, the Association worked with the Governor's Office, State officials, municipal representatives, and other stakeholders to protect and preserve basic industry needs.

First and foremost, and in light of Governor Sununu's Emergency Order #17 to "stay at home", residential construction trades had to be included as an "essential service" to maintain even the most basic jobsite activities. Without the ability to travel to jobsites, receive delivery of materials, conduct construction activities, and process permits and inspections, the completion and occupancy of projects would be rendered moot. Fortunately, Exhibit A to Emergency Order #17 included amongst its "Other Community-Based Essential Functions", "construction workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)". (Emphasis added.) In other words, the Association's members could stay "open for business" and building.

Second, with the ability to operate as an "essential service", residential construction needed the availability of critical support services. Here, Section 6 of Governor Sununu's Emergency Order #23 spoke to the suspension of municipal permitting and inspection services. While efforts to follow modified processes were required, the Order provided a pathway to approval and construction progress in the event municipal services were simply unavailable due to closures relating to Covid-19. Thus, rather than encounter obstacles that would suspend construction, the Order instead allowed contractors to document evidence of construction progress using photographs and video as a means of continuing forward. Following a return to normalcy, follow-up inspections would allow municipal officials to inspect completed work and potentially require alterations.

Third, jobsite safety had to remain paramount. In addition to the typical occupational safety protocols for construction activities, new protocols relating to Covid-19 needed to be instituted and monitored on jobsites. Whether from regulatory sources, NAHB, or other relevant stakeholders, numerous publications emerged to stress the importance of wearing gloves/masks, jobsite distancing, separate arrival and departure rules, new break-time and break-area rules, and cleaning of contact surfaces. The Association, in turn, distributed guidance and warned members that diligent adherence to safety protocols was critical to remaining eligible to function as an "essential service". In other words, being slack about jobsite safety and worker distancing would inevitably lead to the tightening of "essential services", perhaps to the exclusion of the residential building trades.

The patchwork of Emergency Orders and new jobsite safety protocols made it possible to continue some sense of normalcy. This patchwork was only made possible through strong stakeholder communication and flexible cooperation. Given the uniqueness of the situation, it would have been far easier to close jobsites, redirect efforts at other priorities, and allow the industry to languish. Instead, stakeholders shared in their prioritization of construction activities and worked hard to achieve compromises and creative solutions to keep jobsites moving forward.

Certainly, temporary emergency solutions are not perfect. Numerous consequences of the pandemic were unavoidable and hard felt - i.e., hardship in marketing/showing properties to buyers, complications for appraisals, suspension of in-person closings. Nonetheless, the ability of the industry to forge ahead - in some manner - was itself "essential", and, ultimately, would ease our return to normalcy when conditions allowed.

*Ari B. Pollack, Esq. is an attorney licensed in New Hampshire and Massachusetts and a registered lobbyist in New Hampshire representing the governmental and legislative interests of the New Hampshire Homebuilders. Ari practices with the firm of Gallagher, Callahan & Gartrell, P.C. in Concord, New Hampshire.

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Related practice areas:
Resort Law
Real Estate Development
Environmental Law
Shoreland Development