New Legislation Allows Remote Public Meetings During COVID-19 Emergency

Legislation allowing municipalities to conduct business via remote meetings during the COVID-19 emergency passed the Pennsylvania legislature and was just signed into law by Governor Wolf. Act 15 of 2020, previously Senate Bill 841, broadly authorizes political subdivisions and their sub-entities to hold meetings using authorized telecommunications devices until the end of the COVID-19 emergency. The Act also tolls statutorily required time limits for meetings and hearings and provides a mechanism for applicants to request meetings take place during the COVID-19 emergency declaration notwithstanding the tolling time extension in the Act.

Act 15 of 2020 allows a political subdivision, its agencies, departments, authorities, commissions, boards, and council governing bodies to conduct meetings via an “authorized communications device,” defined as any device which permits, at a minimum, audio communication between individuals. The Act clarifies that physical quorums of participating members are not required during the COVID-19 emergency and that quorum requirements for hearings, meetings and other business can be established if a quorum of members participate via the telecommunications device. To the extent practicable, public participation must be allowed at these meetings either through an authorized telecommunications device or written comments submitted to the political subdivision’s physical address or to an email account designated to receive such comments. The Bill’s authorization of remote meetings applies only during the COVID-19 emergency and will expire when the emergency terminates or expires.

The Act requires that an entity publicly advertise each meeting conducted via telecommunication devices on the entity’s publicly accessible website or in a newspaper of general circulation. However, the Act’s notice requirements for meetings differ depending on the purpose of the meeting. Meetings conducted under exigent circumstances to address Governor Wolf’s COVID-19 emergency declaration itself may be done without prior notice to the public. Minutes from such meetings must be posted before the earlier of 20 days after the meeting, or the next regularly scheduled meeting. Meetings at which the political subdivision considers applications, plats, plans, submissions, appeals, or curative amendments not related to the COVID-19 emergency cannot be conducted without at least 5 days prior notice to the public via the entity’s website, a newspaper of general circulation, or both. The required public notice must include the date and time of the meeting, the technology to be used and how the public could participate.

Act 15 of 2020 also tolls (stops the clock) on certain actions required by law on approvals for applications, plats, plans, appeals, curative amendments, or other submissions received during the COVID-19 disaster emergency declaration. For these types of submissions received during the COVID-19 disaster emergency declaration, the number of days provided to satisfy statutory review, hearing, and decision time limits are suspended, but will resume 30 days after the effective date of the Act. Applicants affected by these time extensions must receive written notice from the political subdivision of such extension; however, the Applicant’s failure to receive the notice will not affect the tolling of statutory time limits.

Importantly, the Act gives Applicants the right to request that political subdivisions proceed with legally required meetings relating to the Applicants’ requests notwithstanding the tolling provision. Within 30 days after the effective date of the Act, Applicants may request a formal proceeding on the Applicants’ submission, but the political subdivision has total discretion on whether to proceed with an Applicant’s request. If the political subdivision grants the Applicant’s request and authorizes the proceeding, the Applicant and each party receiving actual notice of it waives any challenge to the proceedings under the Sunshine Act (65 PA.C.S. CH. 7) or under any other provisions of law governing notice, conduct, or participation in a meeting or proceeding. Given the broad language of the Act, the challenge waiver would likely include any notice, conduct, or waiver challenges asserted under the MPC or applicable Philadelphia and Pittsburgh ordinances.

However, Applicants should think through certain issues presented by Act 15 of 2020 before requesting a meeting during the COVID-19 emergency declaration. The Act only applies to political subdivisions, so those Applicants with applications pending or to be filed in the City of Pittsburgh during the COVID-19 emergency would likely still need to comply with community meeting requirements, such as the City of Pittsburgh’s Registered Community Organization (“RCO”) ordinance’s development advisory meeting (“DAM”) requirements. Whether an RCO would permit a remote DAM would likely be in the sole discretion of that RCO. Additionally, the waiver of notice applies only to those people receiving actual notice of the proceeding. Because of the actual notice requirement, an Applicant would be wise to not rely solely on the political subdivision’s posting of a meeting notice on its website or publication of the notice in a newspaper. If requesting a proceeding during the COVID-19 emergency declaration, the Applicant should do as much as possible, such as making telephone calls, mailing and emailing notices of the proceeding to neighboring property owners, and posting of the property, to ensure actual notice of the proceeding is received by all interested parties. Efforts such as these will help to thwart any potential challenge to approvals based on claims regarding lack of notice of the proceeding.

Last, during the COVID-19 emergency declaration, an Applicant with a potential project in a political subdivision governed by the MPC may want to take advantage of MPC Section 10916.2, allowing for preliminary opinions from a zoning officer. Under Section 10916.2, a landowner can submit plans describing its proposed use or development to the zoning officer for a preliminary opinion as to their compliance with the local zoning ordinances and maps. While it is unclear what effect, if any Act 15 of 2020 would have on the timelines and community participation involved in MPC Section 10916.2, a preliminary opinion issued during the COVID-19 emergency could be valuable for an Applicant needing timely answers on a specific issue from the political subdivision before moving forward with a potential project.

If you have questions about Act 15 of 2020, please contact Alison Andronic (ala@muslaw.com)Kevin McKeegan (kfm@muslaw.com), Andrea Geraghty (ag@muslaw.com),  any member of the Real Estate & Lending Group, or any other Meyer, Unkovic & Scott attorney with whom you have worked.

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.
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