On Aug. 31, 2020, the Washington State Legislature extended Proclamation 20-28 through the end of September, which waived and suspended certain portions of the Open Public Meetings Act and Public Records Act to address the ongoing COVID-19 pandemic. Generally, outside of Phase 3 counties, the Proclamation prohibits any in-person meetings for state agencies and governing bodies.
Accordingly, most local governments in the state are holding virtual public meetings through telephonic or video-conference software. These virtual meetings include land use matters requiring a public hearing, specifically development proposals and administrative appeals, whether it be in front of a neutral arbiter (e.g., a hearings examiner or administrative law judge) or a political body (e.g., local council or board).
Although this remote access brings technological issues, by this point, most jurisdictions have converted over to a permanent virtual meeting experience and resolved the common problems from early spring. In fact, now that this virtual hearing infrastructure is in place, one can begin to see that certain elements of this new (required) approach are hugely beneficial. Into next year and beyond, local jurisdictions should continue to implement some level of virtual participation and procedure in the land use hearing context.
Whether you attend a hearing remotely from your office or your home, there is an undeniable comfort and simplicity that comes with participating in a hearing from your own space. Having a fully developed presentation, argument or rebuttal is much easier when all the documents, plans, exhibits, notes, etc. are nearby and on hand. Land use hearings rarely provide the necessary time or capacity to bring all those years’ worth of documents on a project to the lectern. Moreover, as anyone who has lugged an administrative record to a microphone bench can attest, having to flip through a large notebook of exhibits or comments — which can easily exceed thousands of pages — is not a convenient nor efficient way of responding to a question on the record. It can cause delay and potential confusion.
By contrast, in the virtual hearing, one is able (dare say, encouraged) to pull a specific exhibit from the file on your computer, quickly research a statute or regulation off-hand, or possibly even communicate with your development team or other associated parties while another party has the floor (or phone line). Electronic media is far more accessible and manageable than physical. A virtual hearing provides a certain safety net for clarity, efficiency, and thoroughness at land use hearings — something all participants seek regardless of one’s position on a proposal.
- Greater capacity for public participation
Granted, remote participation does have its limitations. Not everyone has a computer, camera, internet access or even a telephone for reliable service.
However, ironically enough, converting over to a remote hearing has in fact given individuals a greater opportunity for participation. Participants who are unable to attend an actual hearing — for instance, because of location or timing — can still submit comments before the hearing, but with virtual hearings, an individual can now also telephone in to a public meeting and testify from their present location. No internet or video-conferencing is required. Some municipalities even open their council chambers for individuals to participate via conference line.
Beyond that, some jurisdictions have even changed hearing procedures to accommodate for reduced accessibility during this time. For example, in Clark County, land use hearings provide for an automatic two-week open-record period following the hearing for any additional public testimony. The means and opportunity for participation are broader than they have ever been.
- Building a comprehensive record
Beyond public participation, those same types of changes to hearing procedures in the virtual environment allow for municipal staff and project applicants to adequately respond to testimony or arguments presented at a hearing. There are inevitably new questions, issues or concerns that are raised at any land use hearing, and in the in-person context, the applicant or staff is sometimes put in a difficult position of responding and answering these questions quickly without an ability to refer to actual documents within the record. In the virtual context, electronic records are more readily accessible for all participants. Moreover, providing for the automatic opportunity to respond in a post-hearing open-record period ensures that those questions and issues get answered directly and accurately.
Ultimately, this leads to a more robust, comprehensive record for the decision-making body to render a decision on the matter. If given clear framework of response and rebuttal timelines, this additional open-record period is an interesting new approach that should be implemented or at least optional for all land use hearings going forward, regardless of the virtual experience.
Armand Resto-Spotts is an attorney in the Jordan Ramis PC land use and real estate development practice groups. Contact him at email@example.com or 503 598-7070.