We know that many of you are grappling with the challenges of the current COVID-19 State of Emergency, working to continue to process land use applications and conduct other municipal business using virtual meeting formats. Several of our attorneys here at Halloran Sage have been involved in the drafting and updating of the various Executive Orders and have been participating in various on-line discussions through the Connecticut Association of Municipal Attorneys, the Connecticut Chapter of the American Planning Association, and the Planning and Zoning Section of the Connecticut Bar Association.
One of the key participants in the preparation of the various Executive Orders has been Professor Sara Bronin of the University of Connecticut School of Law, and also the Chairperson of the Hartford Planning Commission. We saw the following recommendations from Professor Bronin on the CCAPA listserv and wanted to share it with our municipal clients who may not be on that listserv, and Professor Bronin has graciously authorized us to do so. We would especially call your attention to Professor Bronin’s recommendations on the instructions that the chairperson should provide to those in “attendance” at virtual meetings; and also the link to the CLEAR webinar in which Professor Bronin discussed these points in greater detail. As Professor Bronin notes below, she is not providing legal advice but only her own views about how to manage virtual meetings, but we in the Halloran Sage Municipal Practice Group endorse these recommendations.
Please note that Professor Bronin’s recommendations below do not address the question of providing due process to persons who lack the ability to participate in a public hearing for lack of access to technology or perhaps because of a disability. As we previously advised in earlier alerts, some kind of accommodation may be required or the extensions of time fully utilized to extend hearings beyond the COVID-19 crisis, if possible. We have worked with towns to include in the published notice (municipal web site or newspaper) a statement that persons who require an accommodation can contact staff at a telephone number provided. If no request is made, no person should have a due process claim regarding the hearing. If a request is made, the agency could opt to use the 90-day extension of the Executive Order plus any applicant-granted extensions to open the hearing later in hopes that the crisis will be over by that time. Alternately, the hearing could be opened and then continued using the extensions in hopes of getting past the crisis and giving persons a chance to view the video of the first session at town hall after the crisis abates. As another alternative, an accommodation can be provided in the form of a meeting location set up with chair spacing to enable social distancing if a sufficiently small group of persons request an accommodation.
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The Executive Orders require that the technology for e-meetings allows members of the public to listen in simultaneously. They do not modify the right of the public to speak about a matter for which a public hearing has been noticed. In other words, anyone who wishes to speak at your e-meeting should have a reasonable opportunity to be heard.
An orderly public hearing can be accomplished fairly easily using any of the common web meetings platforms: people can be muted on entry, and they also have the ability to “raise their hands.” The chair might: (1) first read into the record any testimony received in writing; (2) then be told by the admin who has “raised their hands”; and (3) then, the admin can unmute the phone lines while the chair asks if anyone on the phone wishes to speak. (If someone gets very unruly and refuses to stop speaking or tries to disrupt the meeting, the admin should be able to eject them from the call, just like you would at a normal public meeting.)
Note that members of the public do not need to be allowed the chance to speak unless there is a public hearing. In fact, if a public hearing has not been noticed, I would not let a member of the public speak. Giving them a chance to speak might unduly prejudice or help the applicant, and would rob someone with a contrary view of their right to be heard, which they might have exercised had a public hearing been noticed.
In case useful for people, here is what I will be reading at the beginning of all City of Hartford P&Z Commission meetings:
“This is a web-based call, so we are operating under the following procedures:
So: For the duration of the emergency, if you are holding meetings, don’t forget to post all meeting materials (e.g., staff reports, exhibits, any public hearing testimony received in writing by that time) online, to your website, 24 hours in advance! (Note that you have to post public hearing notices prior to that time.)
This requirement is outlined in the Governor’s executive orders 7B(1) and 7I(19), available here – https://portal.ct.gov/Office-of-the-Governor/Governors-Actions/Executive-Orders/Governor-Lamonts-Executive-Orders?Page=2#pos=2988
Again, Hartford’s planning department has created a website which might provide an example for folks: https://planhartford.com/public-hearings and https://planhartford.com/public-hearings/widgets/16864/documents
By the way, the CLEAR Webinar on the emergency land use changes has been posted online: https://clear.uconn.edu/webinars/schedule.htm
For more information, please contact our municipal team:
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