By. Neil Williamson, President
Yesterday (4/22) as a part of Governor Ralph Northam’s budget proposal, the General Assembly approved an amendment that explicitly enables localities to electronically hold public hearings to advance land use applications.
Earlier this month, The Free Enterprise Forum applauded those localities which decided that Land Use was an important government function while calling out those who chose to do less (see Planners Playing Possum). This decision hinged on how locality attorneys interpreted a legal opinion provided by Virginia Attorney General Mark Herring.
On April 20th, Charlottesville City Attorney John Blair II tweeted (in a reply to a question by the Free Enterprise Forum) his concerns with the limitations in Herring’s legal opinion and footnote.
Blair’s opinion is shared by many, but not all, City and County attorneys. The good news is now we do not have to wait until the situation is untenable for applicants — the amendment supersedes the Attorney General’s opinion, immediately.
The legislative language includes specific protections to ensure public participation, recordation and proper notification of all parties of the virtual public hearing:
Page 280, after line 26, insert:
g. Notwithstanding any other provision of law, any public body, including any state, local, regional, or regulatory body, or a governing board as defined in § 54.1-2345 of the Code of Virginia may meet by electronic communication means without a quorum of the public body or any member of the governing board physically assembled at one location when the Governor has declared a state of emergency in accordance with § 44-146.17, provided that (i) the nature of the declared emergency makes it impracticable or unsafe for the public body or governing board to assemble in a single location; (ii) the purpose of meeting is to discuss or transact the business statutorily required or necessary to continue operations of the public body or common interest community association as defined in § 54.1-2345 of the Code of Virginia and the discharge of its lawful purposes, duties, and responsibilities; (iii) a public body shall make available a recording or transcript of the meeting on its website in accordance with the timeframes established in §§ 2.2-3707 and 2.2-3707.1 of the Code of Virginia; and (iv) the governing board shall distribute minutes of a meeting held pursuant to this subdivision to common interest community association members by the same method used to provide notice of the meeting.
A public body or governing board convening a meeting in accordance with this subdivision shall:
1. Give notice to the public or common interest community association members using the best available method given the nature of the emergency, which notice shall be given contemporaneously with the notice provided to members of the public body or governing board conducting the meeting;
2. Make arrangements for public access or common interest community association members access to such meeting through electronic means including, to the extent practicable, videoconferencing technology. If the means of communication allows, provide the public or common interest community association members with an opportunity to comment; and
3. Public bodies must otherwise comply with the provisions of § 2.2-3708.2 of the Code of Virginia.
The nature of the emergency, the fact that the meeting was held by electronic communication means, and the type of electronic communication means by which the meeting was held shall be stated in the minutes of the public body or governing board.” Emphasis added-NW
Williams Mullen attorneys T. Preston Lloyd, Jr. and Valerie Wagner Long explained the impacts in their “Back to Business: Land Use Matters & Public Hearings in Virginia – Help is on the Way!” blog post this morning.
While local governments continue to revise their policies and procedures for meeting during the emergency, this important clarification by the Governor and the General Assembly bolstered the authority of public bodies to meet via electronic means as they consider and act upon land use matters, including rezonings and special use permit applications, for the duration of the COVID-19 emergency. Those jurisdictions that desire to expand their tax base and advance new development projects, while ensuring the health and safety of public hearing participants, staff and officials, are now on solid legal footing in doing so.
Considering the economic import of real estate and construction, we agree with Williams Mullen. NOW is the time to start advertising ZOOM public hearings, the sooner the better.
Neil Williamson, President
Neil Williamson is the President of The Free Enterprise Forum, a privately funded non partisan public policy organization covering the City of Charlottesville as well as Albemarle, Greene, Fluvanna, Louisa and Nelson County. For more information visit the website www.freeenterpriseforum.org
Photo Credit: Giphy.com, Twitter.com