As COVID-19-related closures are likely to continue into 2021, the Zoning Commission (Commission) recently took emergency proposed action to further clarify the rules and procedures for virtual meetings and hearings. The text amendment applies to Commission and Board of Zoning Adjustment (BZA) proceedings, which have been held virtually since May 2020.
The amendment would allow for evidentiary offerings during hearings, whereas the existing regulations require submission of evidence no later than 9:00 am on the day of a hearing. However, in order to offer evidence during a hearing, the party or individual must explain how the exhibit is relevant, demonstrate good cause to allow the exhibit into the record, and show that the evidence will not unreasonably prejudice another party. The amendment also permits a party to request additional time following a hearing to respond to an exhibit entered into the record during the hearing. For evidence or comments submitted prior to a hearing, the text amendment would also restrict such submissions to no later than 24 hours in advance.
The text amendment would also provide relief for individuals who are unable to testify at a public hearing due to technical issues “out of the requester’s control.” Specifically, the proposed amendment would restrict the Commission and BZA from issuing an order until at least 48 hours after a virtual hearing. Further, an individual may request to reopen the hearing record in order to provide testimony. The individual must show the request would not prejudice another party by detailing the technical issue and explaining how his or her oral testimony would differ from written comments submitted in the record. If the participant did not submit written comments prior to the hearing, then he or she must explain why.
For applicants and participants who prefer in-person proceedings, the proposed amendment gives a party the right to request a postponement of any virtual hearing until the Board and Commission can hold an in-person hearing. The Commission agreed during deliberations on the text amendment that the applicant will be given deference in requesting to postpone the hearing until it can take place in-person.
Finally, in a decision with more long-term policy and procedural impacts, the proposed text amendment allows for virtual hearings even after the pandemic. While acknowledging some of the technical challenges, the Commission expressed support for “hybrid” hearings where members of the public could virtually participate in a hearing that is held in-person before the Commission or BZA.
The Commission is expected to take final action on the proposed text amendment in October 2020.
