[Note: Since the date this blog was originally posted, the Stay-at-Home Order has been updated. Here is the updated order, effective as of April 9, 2020.]

As you likely know, Governor Polis issued a state-wide lockdown last night, which took effect at 6:00 am today.  I started receiving phone calls late last night from managers and board members wondering what this meant for their associations, their boards, and their ongoing activities and projects.

While there is a lot to consider in Public Health Order 20-24 (“PHO”), here are two areas we thought we’d touch on immediately:

1.  Outdoor Common Element Recreational Facilities

An association has the right to regulate its Common Element recreational facilities, but such regulation is subject to any governmental mandates, including the PHO. Paragraph 1.A. and B. of the PHO state:

A. All individuals currently living within the State of Colorado are ordered to Stay at Home whenever possible. Individuals living in shared or outdoor spaces must at all times, to the greatest extent possible, comply with Social Distancing Requirements, and may leave their Residences only to perform or utilize Necessary Activities.

B. All public and private gatherings of any number of people occurring outside a Residence are prohibited, except for the limited purposes expressly permitted in this PHO which include Essential Activities. Nothing in this PHO prohibits the gathering of members living in the same Residence. 

The above requires you to stay at home whenever possible unless performing or using Necessary Activities, and to not engage in any outside public or private gatherings except as expressly permitted in the PHO, including Essential Activities

One of the allowed Necessary Activities is in Paragraph III.A.3, which provides:

Engaging in outdoor activity, such as, by way of example and without limitation, walking, hiking, nordic skiing, snowshoeing, biking or running. For purposes of outdoor activity, State parks will remain open to the public to engage in walking, hiking, biking, running, and similar outdoor activities but all playgrounds, picnic areas, other similar areas conducive to public gathering, and attended areas shall be closed. Additionally, the permitted outdoor activities in this PHO do not include activities that would violate the Social Distancing Requirements defined in Section III.F, below.

The above contains some ambiguity and, ultimately, it is up to the Board of Directors to interpret and evaluate the mandate with respect to potential closure of their Common Elements. However, it is our recommendation that any Common Element recreational facilities that are similar to playgrounds, picnic areas, and other “similar areas conducive to public gathering” be closed while the PHO is in effect. Such areas do not allow for the less-concentrated outdoor activities that are expressly permitted such as walking, hiking, Nordic skiing, snowshoeing, biking or running.

One of the questions that came up is whether reference to the closure of “State” parks or “public” gatherings would apply to private Common Element areas. In other words, because there is no reference to “private” Common Element facilities, can we still keep them open?

Again, while there is room for clarification in all the mandates we’ve seen so far, the apparent intent of all seem to be to slow the spreading of the virus. Slowing the spreading of the virus would work the same whether you were in a public area or a private Common Element. Therefore, our recommendation for compliance with the spirit of the PHO is to close any outdoor Common Element recreational facilities that are conducive to public gatherings. Understandably, closing outdoor Common Element facilities that are not fenced in is not as easy as it sounds. However, we recommend either posting a copy of the Governor’s directive in conspicuous locations around the Common Elements and/or placing signs indicating the Common Element facilities are closed due to the Governor’s order and attaching the order.

That being said, enforcement of violations of potential closures, as well as any other exterior enforcement in general, raises an entirely different problem. Given the statewide lockdown order, there is little to no ability to conduct enforcement of outdoor violations. So even if you do close down the recreational facilities, ability to enforce compliance of this and any other exterior violation is questionable, and necessitates discussion with your attorney. As a general comment, however, if the potential violation is not going to be something that causes injury to person or damage to property, it can probably wait.

2.  Construction

Paragraph III.C. of the PHO allows for Critical Businesses to continue with operations, assuming they comply with Social Distancing Requirements. Subsection 9 defines one such Critical Business as Construction and provides the following:

Construction, Including but not Limited To:

    • Housing and housing for low-income and vulnerable people
    •  Skilled trades such as electricians, plumbers
    • Other related firms and professionals for who provide services necessary to maintain the safety, sanitation, and critical operation of residences and other Critical Businesses or Critical Government Functions, and other essential services

The PHO is much narrower than many of the county ordinances, which specifically allow for renovation and restoration projects. Although plumbers, electricians, and other skilled tradespersons are exempted outright and can perform services regardless of whether they are for emergency or other purposes, the PHO appears to limit other Construction businesses and professionals to those that provide housing and essential services, such as those who provide services necessary to maintain the “safety, sanitation, and critical operation of residences.” 

So what Construction services (exempting plumbers, electricians, and other skilled tradespersons) would not be essential to the residence?  If you have any current or upcoming construction projects, you will need to re-evaluate them according to the above standard and according to the needs and operations of your specific community.  And, you may want to review any large construction project contracts with your attorney.

Also, keep in mind that if a resident’s contractor fits within the Construction exemption above, the Association has no right to prevent that contractor from accessing the resident’s Unit.  

I’m sure you’ve heard this several times already, but it is important to note that we are in unchartered territory. There is no playbook to respond to the ever-changing and untested mandates and guidelines handed down by local, state, and federal government. We will continue to attempt to provide guidance during these uncertain times.

And, while the language in the PHO and various county ordinances may leave a lot of room for clarity, now is not the time to be looking for loopholes or adopting liberal interpretations in order to continue unrestricted in your outside activities. The apparent intent of the lockdown is to minimize the spread of the virus and to flatten the curve.  If there is ambiguity, therefore, it is better to err on the side minimizing the spread of the virus and flattening the curve.

If you have any questions on the above, please reach out to any of the Altitude Community Law attorneys at 303.432.9999.

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