In March, the COVID-19 pandemic began to envelope the United States and send shockwaves through American everyday life.  Airports, airlines, and the travel industry as a whole was and continues to be particularly hard-hit.  Passenger numbers have begun to inch up at airports across the country, but the pandemic continues to disrupt the system on a daily basis as new hotspots develop, and health restrictions ebb and flow in different states and local communities.  As we highlighted in our May 2020 Airport Law Alert, FAA and airport sponsors continue to grapple with necessary health measures, grant assurance compliance issues, and making sound financial decisions in this time of unprecedented uncertainty.

While COVID-19 is unquestionably the most important development of the last six months, there have been other court decisions, guidance updates, and policy changes affecting airports.  This Digest is a summary of the important developments in airport law in the first six months of 2020, including: a list of principal cases decided; new DOT and FAA rules, policies, and guidance; and reports, studies, and articles of particular interest to airport legal professionals.  Some of these, including proposed new NEPA regulations, are highlighted in more depth below.  We have attempted to provide links to publicly available documents, and most other documents are available via subscription services such as Westlaw or LexisNexis.  To ensure that the important regular news items are not contaminated, we have visually quarantined all COVID-19 materials at the end of this Digest.

We hope you find this Digest useful in your efforts to remain current in the always-evolving legal and regulatory framework that governs airports. If you have questions about any of the materials in this Digest, please contact editor Nicholas M. Clabbers or any other Kaplan Kirsch & Rockwell attorney who normally represents you.

LITIGATION (In Reverse Chronological Order)

FEDERAL AND SELECT STATE COURT DECISIONS

NEPA and Judicial Review. Howard Cty. v. FAA, No. 19-1062 (4th Cir. July 1, 2020) (unpublished) (rejecting petition for review of FAA approval of EIS for cargo improvements at Baltimore-Washington International Thurgood Marshall Airport and finding that petitioners had filed too late, but noting that under specific circumstances, state agency could operate as FAA’s agent with respect to notice of decision).

Car Rental and TNCs.  Turo, Inc. v. City of Los Angeles, No. 18-cv-06055 (C.D. Cal. June 19, 2020) (granting preliminary injunction against unpermitted car-sharing service at Los Angeles International Airport and finding that the City was likely to succeed on its claims under California trespass and municipal airport business licensing laws).

Takings.  Riser, et al. v. City of Chicago, 2020 IL App (1st) 190143-U (June 9, 2020) (in case concerning alleged aircraft overflight takings claim, affirming trial court grant of summary judgment to City of Chicago on statute of limitations grounds and holding that statute began to run upon the opening of a new runway).

Immigration and Customs Enforcement.  United States v. King Cty., 2020 U.S. Dist. LEXIS 92512 (W.D. Wash. May 27, 2020) (denying motion for judgment on the pleadings and proceeding to discovery phase where United States brought challenge to local government executive order requiring airport contracts to contain a prohibition on providing services to aircraft involved in the deportation of immigrant detainees).

Takings. Taylor v. United States, 2020 U.S. App. LEXIS 15565 (Fed. Cir. May 15, 2020) (dismissing complaint alleging regulatory taking, where plaintiff claimed Air Force employee made statements to wind developer contract partner that FAA would likely not issue a No Hazard Determination and developer subsequently elected to terminate the contract).

National Parks and Overflights. In Re: Public Employees for Env’tl Responsibility, 957 F.3d 267 (D.C. Cir. May 1, 2020) (granting writ of mandamus directing FAA and NPS to comply with Air Tour Management Act of 2000, which required agencies to develop air tour management plans for flights over National Parks).

Ridesharing. Arizona v. City of Phoenix, No. CV-20-0019-SA (Ariz. Apr. 2, 2020), en banc (order without opinion holding that City’s assessment of fees on ridesharing companies at Phoenix Sky Harbor Airport did not violate the Arizona Constitution). 

Essential Air Service.  Bd. of Cty. Comm’rs of Washington Cty. v. United States DOT, 955 F.3d 96 (D.C. Cir. Apr. 7, 2020) (rejecting petition for review of DOT decision to remove Hagerstown Regional Airport from Essential Air Service program, finding that it was not arbitrary and capricious because the airport did not meet the enplanement requirement).

Preemption. Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65 (2d Cir. July 9, 2019) (holding that state statute limiting length of runway was preempted by federal safety standards), cert. denied 2020 U.S. LEXIS 1705 (Mar. 23, 2020).

Metroplex/NextGen. Maryland v. FAA, 952 F.3d 288 (D.C. Cir. Mar. 10, 2020) (dismissing as untimely petition for review of FAA implementation of new approaches at Washington National Airport).

Car Sharing Programs. Mass. Port Auth. v. Turo, Inc., Civ. Action No. 19-1773 (Mass. Sup. Ct. Jan. 22, 2020) (granting preliminary injunction against car sharing service, which sponsor alleges is illegally operating at airport without a car rental permit and trespassing at airport, among other claims).

Zoning and Hazards. Northeast Pa. SMSA LP v. Smithfield Twp. Bd. of Supervisors, 2020 U.S. Dist. LEXIS 7096 (M.D. Pa. Jan. 15, 2020) (where lessee sought to construct a cell tower in the vicinity of an airport, FAA Determination of No Hazard to Air Navigation was sufficient evidence to support lessee’s contention that cell tower would not endanger operations at the airport or violate local ordinance).

Standing and Airport Closure. Rosen v. United States Gov’t, 2020 U.S. App. LEXIS 558 (9th Cir. Jan. 3, 2020) (unpublished) (rejecting pro se pilot’s third-party challenge to settlement agreement between the City of Santa Monica and the United States concerning eventual closure of Santa Monica Airport).

PENDING CASES

Environmental Review. Ctr. for Community Action & Envt’l Justice v. FAA, No. 20-70272 (9th Cir. petition filed Jan. 29, 2020) (petition for review of FAA approval of NEPA Finding of No Significant Impact associated with proposed air cargo facility at San Bernardino International Airport).

Slots. Spirit Airlines, Inc. v. U.S. Dep’t of Transp., Case. No. 19-1248 (D.C. Cir. petition for review filed Nov. 25, 2019) (petition for review challenging FAA decision not to immediately allow new flights at Newark Liberty International Airport (EWR) following Southwest Airlines’ cessation of flights from EWR).

Drones. Nat’l Press Photographers Assoc. v. McCraw, No. 1:19-cv-00946 (W.D. Tex. complaint filed Sept 26, 2019) (challenging state law prohibition on certain unmanned aircraft flights).

Metroplex/Next Gen. 
City of Los Angeles v. FAA, No. 19-73164 (9th Cir. petition filed Dec. 12, 2019) (petition for review of FAA decision to allow flight tracks for departing aircraft at Hollywood Burbank Airport to shift following Metroplex implementation).

City of Los Angeles v. Elwell, No. 19-71581 (9th Cir. briefing on motion for summary disposition concluded June 26, 2020) (petition for review of FAA decisions setting flight procedures at Los Angeles International Airport). 

Howard Cty. v. FAA, No. 18-2360 (4th Cir. supp. app’x filed Aug. 1, 2019) (challenging flight procedures at Baltimore-Washington International Thurgood Marshall Airport).

Maryland v. FAA, No. 18-1302 (D.C. Cir. case in abeyance pending FAA reconsideration) (petition for review of FAA decision denying administrative petition for supplemental environmental assessment concerning DC Metroplex and BWI).

ADMINISTRATIVE DECISIONS

Economic Nondiscrimination. Resort Aviation Services, Inc. v. Kootenai Cty., FAA Docket No. 16-20-01, Order of the Director (Apr. 30, 2020) (granting motion to dismiss FBO complaint alleging violations of Grant Assurances 22 and 23 where sponsor granted lease agreement to second FBO and withdrew RFP).

FEDERAL LEGISLATION

National Defense Authorization Act for Fiscal Year 2020, Pub. Law No. 116-92 (Dec. 20, 2019).

FEDERAL RULES, ORDERS, AND GUIDANCE (In Reverse Chronological Order)

THE WHITE HOUSE

Executive Order No. 13927, Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities (June 4, 2020).

DEPARTMENT OF TRANSPORTATION AND FAA ORDERS, POLICIES, AND ADVISORY CIRCULARS

Revised Grant Assurances, FAA Airport Sponsor Assurances (June 4, 2020).

Report to Congress, FAA Reauthorization Act of 2018 Sections 188 and 173 (Apr. 14, 2020) (study regarding day-night average sound levels).

Notice of Proposed Rulemaking, Noise Certification of Supersonic Airplanes, 85 Fed. Reg. 20,431 (Apr. 13, 2020).

Notice of Modification, Airport Improvement Program (AIP) Grant Assurances, 85 Fed. Reg. 12,048 (Feb. 28, 2020) (comment period expired Mar. 30, 2020).

Reauthorization Program Guidance Letter (R-PGL) 19-06, Environmental and Noise (Feb. 27, 2020).

Reauthorization Program Guidance Letter (R-PGL) 19-05, ZEV, VALE, and Energy Efficiency Programs (Feb. 27, 2020).

Reauthorization Program Guidance Letter (R-PGL) 19-03, Airport Types and Eligibility (Feb. 27, 2020).

Part 139 Cert Alert No. 20-01, Required Training for Vehicle Operators Prior to Accessing the Movement Area (Feb. 25, 2020).

Advisory Circular No. 150/5200-33C, Hazardous Wildlife Attractants on or Near Airports (Feb. 21, 2020).

Notice of Proposed Rulemaking, Traveling by Air with Service Animals, 85 Fed. Reg. 6448 (Feb. 5, 2020) (comment period expired Apr. 6, 2020).

Memorandum PFC 73-20, Streamlined Procedures for Passenger Facility Charge (PFC) Authorizations at Small-, Medium-, and Large-Hub Airports (Jan. 22, 2020).

Reauthorization Program Guidance Letter (R-PGL) 19-04, Pilot Program Eligibility (Jan. 22, 2020).

Final Rule, Administrative Rulemaking, Guidance, and Enforcement Procedures, 84 Fed. Reg. 71,714 (Dec. 27, 2019) (eff. Jan. 27, 2020).

DEPARTMENT OF TREASURY

Final Rule, Provisions Pertaining to Certain Transactions by Foreign Persons Involving Real Estate in the United States, 85 Fed. Reg. 3158 (Jan. 17, 2020) (includes specific provisions concerning airports).

DEPARTMENT OF JUSTICE

FBI Private Industry Notification No. 20200612-001, Unattributed Cyber Actors Register Domains Spoofing Legitimate Airport Websites as a Possible Precursor to Future Operational Activity (June 12, 2020).

Memorandum, Guidance Regarding Department Activities to Protect Certain Facilities or Assets from Unmanned Aircraft and Unmanned Aircraft Systems (Apr. 13, 2020).

COUNCIL ON ENVIRONMENTAL QUALITY

Notice of Proposed Rulemaking, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 1684 (Jan. 10, 2020) (comment period expired Mar. 10, 2020).

REPORTS, STUDIES, ARTICLES, & OTHER PUBLICATIONS (In Reverse Chronological Order)

U.S. DEPARTMENT OF TRANSPORTATION

Office of Inspector General, Report No. EC2020036, Changes in Airline Service Differ Significantly for Smaller Communities, but Limited Data on Ancillary Fees Hinders Further Analysis (May 27, 2020).

Office of Inspector General, Report No. AV2020028, Contract Towers Are More Cost Effective Than Comparable FAA Towers and Have Similar Safety Records (Apr. 28, 2020).

Office of Inspector General, Report No. IT2020027, FAA Lacks Sufficient Security Controls and Contingency Planning for Its DroneZone System (Apr. 15, 2020).

FAA, Response Letter to Quiet Skies Caucus (January 24, 2020).  

U.S. GOVERNMENT ACCOUNTABILITY OFFICE

Report No. GAO-20-275, TSA Could Strengthen Its Insider Threat Program by Developing a Strategic Plan and Performance Goals (Feb. 2020).

CONGRESSIONAL RESEARCH SERVICE

Report No. IF11550, Protecting Against Rogue Drones (May 15, 2020).

Report No. IF11420, Aircraft Noise and Air Traffic Control Modernization (Jan. 27, 2020).

TRANSPORTATION RESEARCH BOARD, AIRPORT COOPERATIVE RESEARCH PROGRAM

Research Reports

Research Report 216: Guidebook for Assessing Collaborative Planning Efforts Among Airport and Public Planning Agencies (Apr. 15, 2020).

Research Report 215: Transportation Network Companies (TNCs): Impacts to Airport Revenues and Operations—Reference Guide (Mar. 31, 2020).

Research Report 218: Building and Maintaining Air Service Through Incentive Programs (Mar. 30, 2020).

Research Report 211: Guidance for Using the Interactive Tool for Understanding NEPA at General Aviation Airports (March 9, 2020).

Research Report 213: Estimating Market Value and Establishing Market Rent at Small Airports (Feb. 7, 2020).

Research Report 220: Guidebook for Developing a Zero- or Low-Emissions Roadmap at Airports (Jan. 7, 2020).

Synthesis Reports

Synthesis 106: Airport Risk Identification and Prioritization Practices (Mar. 3, 2020).

Legal Research Digest

Legal Research Digest 38: Legal Issues Related to Large-Scale Airport Construction Projects (Feb. 14, 2020).

Web-Only Documents

Web-Only Document 46: Recovering International Recyclables from In-Flight Service (May 18, 2020).

Web-Only Document 45: Airport Environmental Research Roadmap Narrative Report (Feb. 18, 2020).

OTHER INSTITUTIONAL AUTHORS

National Cooperative Highway Research Program

Research Report 938: Incorporating the Costs and Benefits of Adaptation Measures in Preparation for Extreme Weather Events and Climate Change Guidebook (March 23, 2020).

Airport Consultants Council (ACC)

ACC Report, Capital Development at US Airports (March 5, 2020)

COVID-19 MATERIALS

U.S. Department of Transportation, Runway to Recovery: The United States Framework for Airlines and Airports to Mitigate the Public Health Risks of Coronavirus (July 2020).

Airports Council International – North America, COVID-19 Recovery Recommendations (June 2020).

FAA, Information for Airport Sponsors Considering COVID-19 Restrictions or Accommodations (updated May 29, 2020).

FAA, CARES Act Airport Grants – Frequently Asked Questions (updated May 29, 2020).

Part 139 Cert Alert No. 20-03, Notice to Airmen (NOTAM) Examples when Closing Runway(s) and/or Taxiway(s) to Temporarily Park Aircraft (May 5, 2020).

United States Department of Transportation, Docket DOT-OST-2020-0037, Final Order Regarding Continuation of Certain Air Service (Apr. 7, 2020).

FAA, Considerations for State, Local, and Territorial COVID-19 Restrictions That Impact Air Transportation (Mar. 28, 2020).

Click to download a PDF of this Semi-Annual Airport Law Digest.

The COVID-19 pandemic has changed nearly every corner of American society and disrupted the air travel industry in unprecedented ways.  The slow recognition and extended length of the crisis has delivered a different kind of shock to the system than the terrorist attacks of September 11, 2001.  Policymakers at all levels of government, airport sponsors, and other players in the industry are reacting in real-time, trying to address the immediate impact of the pandemic while simultaneously planning for an uncertain future. 

As a result of the pandemic, airport sponsors and the FAA have been forced to create new policies or apply existing policies and guidance in creative ways to fit unique and changing circumstances.  New federal legislation also may fundamentally change the way airports do business in the future.  It is not clear what new obligations might be placed upon (or assumed by) airport sponsors with respect to the health and safety of the traveling public, but sponsors should begin to prepare on several fronts. 

FAA Compliance Guidance for Airport Sponsors

A dramatic drop in operations, nearly empty terminals, requests from tenants and airlines for rent or fee deferrals or abatements, and state and local health restrictions, have all raised new concerns about how airport sponsors may remain in compliance with their federal grant obligations.  In response to many questions from airport sponsors and industry groups, FAA released a series of compliance guidance documents and new policies over the past six weeks. 

In the early days of the pandemic, when state and local governments began imposing the first series of shutdown orders and closing many public facilities, FAA issued a Compliance Guidance Letter (“CGL”) stating that the complete or partial closure of an airport for public health concerns would qualify as closure for a “non-aeronautical purpose,” which must be approved by the FAA.  Shortly thereafter, FAA issued separate guidance for state and local governments considering restrictions that might adversely affect air transportation (e.g., quarantine or travel restrictions on persons coming from virus hot spots).  That guidance again noted that an airport cannot close for public-health reasons without FAA approval, and encouraged governments to work with aviation stakeholders (including airports) in the development and implementation of any restrictions. 

With demand for air travel near zero, airlines also sought to ground their fleets and temporarily park aircraft at airports across the country.  In response, FAA published a Part 139 Cert Alert reminding sponsors of their safety and accessibility obligations related to runways and taxiways.  FAA more recently published a second Part 139 Cert Alert regarding best practices for the issuance of Notice to Airmen (NOTAMs) when closing runways and/or taxiways to temporarily park aircraft.

On April 4, FAA published an updated version of its more comprehensive guidance for airport sponsors that touched on a wide variety of compliance issues.  It refined several of the earlier documents discussed above, and also addressed several new and critical points.  While largely avoiding black-and-white statements or bright-line rules, FAA generally stated that airport sponsors may consider waiving (not just deferring) fees and rents owed by airport tenants, so long as its determination carefully considered contractual terms, debt service requirements, and other sponsor financial obligations, as well as any decline in fair market value, loss of services, and/or changes to volume of traffic and economy of collection as a result of COVID-19.  On the issue of closing airports, the guidance clarified FAA’s earlier positions and distinguished between closing aeronautical facilities (allowed only after advance consultation with the FAA) and closing non-aeronautical facilities (not likely to be a grant assurance violation).  The guidance instructed that prohibiting flights from particular locations (e.g., virus hot spots) is a violation of federal law, unless approved in advance by the FAA.  However, the FAA also acknowledged there may be instances in which it would be appropriate to require flights to land at certain airports for health screening, provided that the FAA approved such a measure. 

With respect to public health measures, the guidance stated that the FAA will not generally allow an airport sponsor to commit airport employees or resources to conducting public health screenings, although the sponsor may accommodate local public health officials to conduct screenings at the airport.  Significantly, the FAA did not object to temporary limits on recreational aeronautical activities (e.g., flight training, sky diving), provided that they are implemented pursuant to the order of public health officials whose geographic jurisdiction includes the airport. 

The FAA stresses that these guidance documents are not binding and sponsor compliance is voluntary, but they are nevertheless an important indication of the FAA’s views on sponsors’ grant assurance obligations in the context of the current crisis.  The guidance emphasizes that the FAA will be flexible in accepting certain temporary or emergency accommodations that might otherwise be impermissible, and that it will evaluate all restrictions or accommodations in the unique context of the particular airport.

CARES Act Implications for Airports

On March 27, 2020, the President signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act into law as Public Law No. 116-136.  The CARES Act is a sprawling piece of legislation that provides financial relief to many sectors of the American economy, including airports and some of their business partners (primarily airlines and airline service providers). 

Of most interest to airport sponsors, the CARES Act allocates $10 billion in funds to be made available to airports, which are not subject to many of the usual restrictions associated with federal grant money.  The CARES Act prescribes a methodology for allocating amounts to individual airports that is multi-faceted and generally tied to an airport’s level of debt and activity level.  The FAA’s calculation of the amounts available to each airport has been heavily scrutinized, as some small airports with no debt are presumptively entitled to millions of dollars in funding.  This apparent discrepancy has led the FAA to cap the CARES Act funds available to an airport at four times that airport’s annual operating budget.

To obtain CARES Act funds, sponsors must complete a short application (if funds will be used for new capital projects, additional coordination with the ADO is required).  Once funds are received, they may be used for any purpose for which airport revenue may lawfully be used: operating or maintenance expenses, capital costs, or debt service.  As a condition of receiving the funds, sponsors of hub or primary airports must continue to employ, through December 31, 2020, at least 90% of the number of full-time equivalent employees employed (after making adjustments for retirements or voluntary employee separations) as of March 27, 2020.  FAA has indicated that, consistent with the CARES Act, it will not require compliance with all Airport Improvement Program grant assurances, but that a certain subset may be included in the grant agreement.  FAA has published an extensive FAQ document on CARES Act issues, but again cautions that it is not binding and subject to future revisions.

Airlines are also eligible for certain financial relief in the form of grants and loans through the CARES Act.  As a condition of receiving that aid, airlines must commit to a host of conditions, including providing minimum air service nationwide.  On April 7, the United States Department of Transportation issued its final order specifying the carriers and points that would be covered by the minimum air service obligations.  Many airlines have subsequently applied for exemptions from parts of these obligations, though the Department has denied many of those requests.

Looking Ahead: Public Health Requirements and Other Considerations

As the expiration of the state stay-at-home orders leads to the slow recovery of air travel, there is little doubt that the industry will look significantly different from just two months ago.  There have not yet been any federally mandated health screenings or personal protective equipment measures directed at airports in particular.  More broadly, the Equal Employment Opportunity Commission (EEOC) has provided guidance indicating that employers may require employees to wear masks to prevent the spread of COVID-19.  Many state and local governments have mandated that individuals wear masks in public places (including airports in some cases) or that employers provide masks for their employees.  In addition, many airlines have announced that they will require passengers to wear masks on flights.  At least one airport terminal operator is independently taking steps to implement health screenings. 

For now, all of these requirements, guidelines, and practices are an evolving patchwork, but airport sponsors should be prepared to act as new federal or state mandates are announced (or public pressure demands additional health precautions).  Momentum is already building on this front; on May 5, Senators Edward Markey and Richard Blumenthal introduced a bill that would require several federal agencies to assemble a joint task force (with airport operator participation) to provide emergency plans, guidelines, and recommendations on the safe and healthy resumption of air travel.  Both during and after any federal process for imposing new mandates or recommendations, it will be critical for airport sponsors to coordinate with the FAA, airline stakeholders, and other tenants to ensure that responsibility for compliance and enforcement is appropriately allocated.  Airport sponsors need to consider carefully both their state and local authority to implement health screening, the liability implications of screenings, any applicable state privacy laws regarding the collection and storage of medical information, as well as equal protection issues related to disability rights or accommodations.  The practicality of handling persons who test positive under the screening protocol will also raise legal issues.

Sponsors will likely face a slew of issues that are not a result of a change in the law but rather brought on by the harsh reality of the economic fallout of the crisis.  Sponsors should expect and plan for stakeholder bankruptcies, including airlines, FBOs, concessionaires, rental car companies, and others.  Airport lawyers will need to advise airport management in careful planning for bankruptcy and structuring any accommodations to minimize bankruptcy exposure.  Given the likelihood of significant bankruptcy filings, Kaplan Kirsch & Rockwell’s bankruptcy lawyers are providing advance planning advice to many airport sponsors.

Claims for damages related to potential infections at airports (both from passengers and employees) are possible, and sponsors should check whether such claims might be mitigated or eliminated through state sovereign immunity statutes or physical protective measures at the airport itself.  Sponsors should also consider whether it is necessary to update its insurance coverages, governing or form documents (e.g., minimum standards, rules and regulations, standard leases), and planning and forecast documents to account for new compliance measures, increased liability risks, or reductions in revenue.

This Airport Law Alert provides a high-level overview of airport law issues related to the COVID-19 pandemic.  It is not intended to be a comprehensive analysis of all applicable law, nor should it be interpreted as applying to any particular factual situation.  For more information or to discuss a specific set of circumstances, please contact the Kaplan Kirsch & Rockwell attorney(s) that normally represent you or any member of our Airports practice.  For questions about bankruptcy planning, contact Eric Smith, Dave Bannard, or Eric Pilsk. 
 

On April 27, 2020, the Denver City Council approved an ordinance delaying the effective date of the City’s 2019 Building and Fire Code, adopted in December 2019.  This action will allow developers and contractors additional time to submit projects designed under the 2016 Denver Building and Fire Code for building permit review.  The ordinance also allows developers and contractors issued a building permit under the 2016 Code additional time to commence construction. 

The ordinance responds to expected delays in project construction as a result of the COVID-19 pandemic.  This action will allow projects designed under the 2016 Code to proceed in the future without having to undergo costly redesigns to meet 2019 Code requirements.   

Key provisions of the ordinance include: 

• The effective date of the 2019 Code is delayed from late April 2020 to July 31, 2020.  This allows developers and contractors who have not yet submitted permit applications to do so using the standards of either the 2016 Code or the 2019 Code until July 31, 2020.    
• No changes will be required to construction documents, construction or the designated occupancy of a structure that received a building permit under the 2016 Code as long as construction is pursued in good faith prior to December 31, 2020.  
• Until December 31, 2020, “major projects” that are in design but do not submit permit applications until after July 31, 2020 may request to be reviewed and permitted under the 2016 Code.  This request must be made to the Denver Building Official and include certain specified information, including a commitment to commence construction by July 31, 2021 and complete construction by July 31, 2023.

The text of the 2019 Code amendment and additional information regarding the City Council ordinance are available here. The amendment will apply differently depending on a project’s status, and developers and contractors should seek legal counsel to understand how the amendment affects their projects. 

Please contact Sarah Rockwell or Hanna Gustafsson if you have any questions about this Law Alert. Thank you also to Steve Ferris from The Real Estate Garage who contributed to this Alert.