Massachusetts Sees Tensions Between Municipal Construction Bans and Governor's "Essential Services" Order


By: Catherine A. Bednar, Esq.

On March 17, 2020, Boston became the first city to issue a moratorium on construction projects as an emergency measure to slow the spread of COVID-19. Boston’s order includes exceptions for emergency and essential work, such as emergency utility work and construction needed to support public health facilities, maintain reliability of the transportation network, and keep residential buildings habitable. Following Boston’s ban, Nantucket, Cambridge, and Somerville and other local governments issued similar orders which, like Boston, include exceptions for emergency work and certain projects.

On March 23, Governor Baker issued an Order “Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More than 10 People”. The order sought to close a broad range of public facilities, workplaces and establishments while maintaining critical services and functions.  In particular, the Order identified two categories of construction industry workers as “essential” who may continue to work, which encompassed a significantly broader swath of workers than the exceptions set forth in the municipal bans, including workers and vendors involved in the construction of “critical or strategic infrastructure” and construction workers on all construction sites and construction projects including housing construction. 

Two days later on March 25, as municipalities continued to issue orders restricting construction work, the Governor’s Legal Office issued a letter invoking Section 8A of the Massachusetts Civil Defense Act, which mandates that any local government order “shall be inoperative” to the extent it is inconsistent with an order issued by the Governor during the period of the emergency. The letter, which called on municipalities to withdraw any directives that are inconsistent with the Governors’ Order, was met with resistance.

On March 27, 2020, Somerville’s mayor issued a statement that “due to Somerville’s dense urban environment” and in order to protect workers and the community, the City’s construction suspension will remain in full force.  Likewise, Boston’s mayor affirmed the city’s construction ban would be extended. The islands of Nantucket and Martha’s Vineyard petitioned the Governor’s office seeking an exemption.

During a press conference on March 26, Governor Baker expressed a level of tolerance for those municipalities issuing construction bans.  Baker noted that the state’s COVID-19 guidelines for ensuring safety on job sites provides for oversight and enforcement to be performed at the municipal level.  Baker explained, “Boston and several other municipalities have said — and it’s a fair point — that they don’t believe that they’re in position at this point to do the work that would be associated with ensuring that those guidelines are being adhered to on the ground with all the projects that are either underway or planned.” Boston Mayor Marty Walsh also indicated the City was working with the construction industry to “determine protocols that would allow these sites to safely re-open in Boston.”  Similarly, officials from Martha’s Vineyard and Nantucket held a weekend conference call with the Governor’s office to work on resolving the issue. On Monday, March 30, the Town of Edgartown posted on its website that “The Governor’s representatives stated that the local boards of health retain the power to ban construction if warranted by local considerations”, such as the local hospital capacity.

Whether the Governor takes future action to compel municipalities to withdraw their local orders or instead continues to give cities and towns latitude, will likely depend on the scope, duration and impact of the current local measures going forward.

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