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Monday, May 4, 2020

Tips for Remote Zoning Hearings

The latest edition of Ancel Glink’s “In the Zone” land use newsletter has tips for municipalities considering remote zoning hearings with less than a physical quorum during the COVID-19 pandemic. Here are a few things to consider:

1. Only Hold Necessary Hearings. The Governor and Attorney General continue to encourage municipalities to postpone or cancel public meetings when possible. This includes zoning hearings. So, municipalities should consider whether it is necessary to hear a zoning application during the Governor's Stay-at-Home Order and why. This will be a fact-specific analysis, and the results will vary based on the application and the community. Communities should memorialize in writing any hearing postponements and share notice of the postponement with the applicant, media outlets, and interested members of the public. You might also consider asking applicants whose proposals will be heard remotely to explain why a hearing is necessary and sign an agreement a) waiving any claims against the municipality, and b) indemnifying and holding the municipality harmless for third party legal challenges associated with the hearing.

2. Adopt Emergency Rules. The Governor temporarily suspended Open Meetings Act provisions requiring a quorum to be physically present to conduct a meeting. Many communities previously adopted rules governing when officials can remotely participate in meetings, how members of the public may participate in meetings, and how zoning hearings are conducted. We recommend that the corporate authorities or authorized hearing bodies adopt emergency rules aligning their practices with recent OMA guidance and make those emergency rules available on the community's website.

3. Secure an Open and Convenient Hearing Location (if meeting will not be entirely remote). The Governor has placed stringent limits on the number of people allowed to gather in any one place and imposed social distancing requirements on all gatherings. Many zoning hearings involve dozens - and in some cases, hundreds - of people. Communities that want to conduct zoning hearings must consider whether and how the hearing will comply with gathering restrictions, including where the hearing will be held (e.g., gym, community center), how physical access to the hearing room will be regulated (e.g., 1 in, 1 out, staging room), and who could be permitted to physically gather without compromising public safety (e.g., staff, board members).

4. Identify Ways to Participate. We recommend that communities provide multiple ways to participate in a remote hearing. These might include teleconference (i.e., telephone), videoconferencing platforms (e.g., Zoom, GoToMeeting), streaming meetings on the community's website or on social media (e.g., Facebook Live or YouTube), and public access television. It is important to remember that not all interested parties have internet access, and some members of the public may require accommodation due to disabilities. As a result, communities should provide multiple, redundant, and flexible ways for individuals to participate in hearings. All hearing participants must be able to view documents and testimony provided during the hearing, so posting application materials, plans, and other documentation on the community website is recommended. They must also be allowed to present evidence during the hearing, ask questions of the applicant and other witnesses, cross-examine witnesses, and address the hearing body. Communities must keep this in mind when evaluating remote hearing platforms.

5. Advertise Ways to Participate - Public Notice. Meeting agendas, hearing notices, the municipality's website, and municipal social media feeds should identify ways in which the public can participate in the hearing. It's best to publicize these methods as early and frequently as possible, and to timely respond to public inquiries regarding hearing procedures.

Click here to read more, and email us at inthezone@ancelglink.com to receive future editions of “In the Zone” in your inbox!

Post Authored by Dan Bolin, Ancel Glink


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