Navigating Development Approvals in the Midst of the COVID-19

Considerations for Development Applicants: Part I – Best Practices for Interacting with Local Governments in a Virtual World

Digital permitting services, virtual neighborhood meetings, live remote inspections, online city council and county commissioner meetings—this is the new reality of the development process in the midst of COVID-19. Depending upon the jurisdiction and approval type, a variety of different local government staff members, committees, and boards may be involved in the process. This amounts to an interface-heavy process in a time when public gathering is strongly discouraged (if not prohibited). Before charging ahead with Zoom meeting invites and dressing your best from the waist up, it is important to review how these meetings may convene in a digital manner that meets statutory requirements.

Local governments across the country have responded differently to navigating development approvals in a virtual world. Because jurisdictions range in size, capacity, and approach to governance generally, there is no one size fits all approach to development approvals even under normal circumstances—let alone during a pandemic.

There are three general types of development approval decisions: administrative, legislative, and quasi-judicial. Most administrative approval decisions have been more easily transitioned to online platforms, as the parties involved typically include the applicant and the local government official (e.g., submission of applications online to be reviewed by a local government official, virtual technical review meetings). However, legislative and quasi-judicial decisions present more complicated issues.

One of the biggest concerns for local governments operating during this time is satisfying the requirements of any applicable Open Meetings Law, which generally provides the public the right to access and participate in meetings of local government bodies. For example, the Governors of New York and Massachusetts issued orders providing more flexibility for local governments to conduct meetings and hearings electronically. For the most part, many of the required public meetings have been postponed or have migrated to new digital mediums in light of the current environment.

Apart from general open meetings law considerations, when navigating legislative and quasi-judicial hearings for development approvals in this virtual world, applicants should pay particular attention to State statutes and local ordinances governing:

• Notice of Hearing Requirements. Depending on the jurisdiction, an applicant needs to pay attention to whether and how applicable notice provisions must be met. This not only applies to local governments, but applicants planning to notice a neighborhood meeting.
• Quorum, Participation by Board Members, and Voting Requirements. An applicant needs to be familiar with the local rules governing board members’ participation in virtual hearings to ensure their rights are protected. Rules vary by jurisdiction and by governing board. If necessary, an applicant should consider requesting clarification on which board members are present and how each board member voted on a motion.
• Speakers & Evidence Allowed. For legislative decisions, applicants should pay particular attention to any announcements posted on the local government’s website or in a meeting notice requiring individuals to register to speak prior to the hearing. For quasi-judicial hearings, applicants have due process rights. These rights include the ability to challenge the impartiality of board members, to present, review, and rebut evidence, and to cross-examine witnesses. Where possible, the applicant should approach such hearings as it would normally to protect these rights. For both types of hearing, the applicant should practice using the virtual technology (Skype, WebEx, Zoom) and features (raising hands, muting, screen-sharing) in order to become familiar with the best ways to present documents/PowerPoints while speaking.
• Appeal Rights. For appeals to a court from a local government decision, applicants should be aware of any court orders extending deadlines for filing and understand whether it applies to their case.