The City of Austin issued guidance for the construction industry late Tuesday night, attempting to shut down virtually all commercial construction within the City.
The Mayor is quoted as saying “Under the Order signed this morning, there will be no commercial construction, except in the very limited exception where it’s constructing essential and critical assets.” We do not believe the City’s guidance adds clarity to its March 24, 2020 Stay Home – Work Safe Order. Further complicating matters, Travis County’s stay at home order is inconsistent with the City’s guidance. In the event of a conflict, the Travis County Order will likely prevail over the City of Austin’s Order and guidance.
Here is our interpretation of the City of Austin’s guidance. The City of Austin specifically exempted construction projects “where the construction involves one of the specific types of essential and critical facilities listed in Exhibit B, Part 2.p.”
Our interpretation is that any project is exempt from the City’s Order “where the construction involves” one of the specific types of Critical Infrastructure defined by CISA (and incorporated by the City’s Order at Exhibit B, Part 2.q). CISA, under its Commercial Facilities Sectors directive, includes hotels, motels, conference centers, office and apartment buildings, condominiums, mixed-use facilities, retail centers and shopping malls. See below.
Early-Tuesday Order Exh. B
The City’s confusing and inconsistent messaging does a disservice to the design and construction industry and its diverse stakeholders. Owners, builders, designers, subcontractors, suppliers, trades, and laborers all depend on and deserve clearer legal directives and “guidance” than what the City of Austin has provided, especially in times of uncertainty. Other cities and counties in Texas and elsewhere have succeeded in this regard, and the Austin design and construction industry deserves no less.