Several local municipalities and state agencies in NY and CT have instituted virtual hearing videoconferencing as a result of the COVID-19 State of Emergency. A public hearing for a specific application, unlike a public meeting, involves providing the opportunity for the public to comment on that application. These municipalities and agencies had to quickly adjust public hearings to the online videoconferencing format to ensure that land use, zoning and other municipal applications are processed while at the same time adhering to both open meetings law requirements and the important social distancing requirements to protect everyone’s health and well-being. Virtual hearings are allowing important projects to move forward, including projects for essential services such as hospitals, nursing homes, and public utilities, so that the benefits of these projects will not be delayed while the community stays at home and then recovers from the pandemic.
Similar to the many changes brought on by the state of emergency, there was minimal time to adapt to the virtual format for hearings, and municipalities and project teams are learning in real time. In this short timeframe, Cuddy & Feder’s attorneys have successfully participated in more than a dozen virtual hearings already in NY and CT on behalf of their clients. Based on our extensive experience with land use and regulatory hearings and recognizing the importance of the integrity of the public hearing process, Cuddy & Feder established several protocols and practical tips to ensure that the virtual hearing is seamless.
Prepare
Being prepared seems obvious, but how to prepare for a virtual hearing where there are no easels or poster boards with drawings? Decide which drawings or visual materials will be shown on the screen for presentation purposes. Assign a specific team member to share their screen of visual materials for the presentation. Discuss anticipated questions and make sure each team member knows which question they should plan to address, if it comes up, so that team members are not talking over each other.
Practice
Conduct a preparation meeting with the project team using the video conferencing platform for the public hearing. Walk through the presentation and have the project team members practice using the videoconferencing technology to avoid technical glitches during the hearing.
Protocols
Communicate with the municipality/agency to determine the format of the public hearing. Will you be asked to show project documents and if so, how does the videoconferencing platform allow this? How will the Chairman conduct public participation during the public hearing? Will the public be able to submit questions via email or ask questions during the virtual hearing? What is the limit of speaking time and/or of comments per commenter? If the municipality has not thought about the protocols, suggest that the Chairman or someone from the municipality or agency act as the moderator and explain the protocols at the start of the meeting to ensure that all communications are orderly.
Presentation
Make sure that in addition to all project specific requirements, that all new procedural requirements are being observed during the hearing. For instance, confirm on the record that the virtual meeting is being recorded and that the agency will transcribe the public hearing and make it available to the public (requirements of Governor Cuomo’s Executive Order No. 202.1). It may also be beneficial for the applicant to have their own stenographer transcribe the virtual meeting.
Notice
Make sure that the requisite public hearing notices are met. New requirements are applicable which are intended to inform the public how they may view and participate in such public hearing.
Privacy
Do not assume that any of the private chat rooms or other small group breakout features of the videoconferencing platform are private and not visible on the screen. If you need to communicate privately with your project team members or clients, do so outside of the videoconferencing platform.
Similar to an in-person hearing, a well-run and orderly videoconference public hearing allows all participants an opportunity to obtain information and a chance to be heard. With the most recent Executive Order in NY endorsing the use of videoconferencing for public hearings, hopefully more municipalities and state agencies will schedule videoconference hearings so that projects can safely move forward until in-person meetings can resume. For more information please contact landuse@cuddyfeder.com.