By Neil Andrew Stein, Esquire, Kaplin Stewart Meloff Reiter & Stein, P.C.
SURVIVING A LAND USE ILLNESS FROM THE CORONAVIRUS
For builders and developers, time is money. A delayed approval or permit could mean higher interest rates, breach of sales agreements, and weather delays, just to name a few potential consequences. So, what if an agency, governing body, or hearing board delays or cancels a meeting due to the Coronavirus? While a brief blip in scheduling may be tolerable and need not result in a possible deemed approval, a lengthy delay could pose a serious problem to landowner and government alike. Are there alternatives? Perhaps, but the options may be limited with little or no judicial authority to rely upon.
Scenario #1. An agency or municipal board cannot convene a quorum in person.
The answer is that one or more members can participate by telephone by employing a speaker setup in the meeting room. As long as at least one member is physically present in the meeting room, the remainder of the quorum can be established telephonically as long as the public and other members are able to listen in and communicate. Even votes may be taken telephonically. See Babac v. Penn. Milk Marketing Bd., 613 A.2d 551 (Pa. 1992).
Scenario #2. Due to infection, no board members are physically present in the meeting room.
Given the Babac case, I see no reason why all of the board members could not participate telephonically as long as a speaker setup allows the public to listen in and participate at a central location. However, this scenario has not been addressed by a Pennsylvania court.
Scenario #3. Due to community spread, there is opposition to physically attending a meeting.
This is unchartered territory. Could a meeting be conducted by a conference call, Skype, Zoom, or some other form of technical means? The logical answer would seem to be “yes.” Under Babac and the Sunshine Act, a gathering must have three characteristics in order to count as a "meeting." First, the meeting must be prearranged. Second, a quorum must attend. Third, the purpose of the gathering must be to discuss or deliberate on agency business or take official action. In the absence of case law and a definitive legislative answer, I will revert to the legislative intent of the Sunshine Act, which emphasizes the ability of the public to participate. If participation can be meaningfully provided telephonically or electronically, should a physical presence matter? Babac, in a footnote, states that “…the statute merely gives the public the right to witness the deliberation, policy formation and decision making of agencies. In other words, the statute gives the public the right to be present to personally observe the deliberation, policy formation, and decision making of agencies.” Given technological advances and the threat posed by the virus, the meanings of “presence” and “observation” may need to be construed more liberally.
The developer and agency are likely to agree upon a sensible and appropriate procedure, at least in the short term, if and when disaster strikes. The real test will come when an objection is voiced and when a legal challenge is brought. The courts will then be called upon to consider the limits of due process. I will be curious to see if logic prevails. Take two aspirin and call me in the morning.
Neil Andrew Stein, Es¬quire, Kaplin Stewart Mel¬off Reiter & Stein, P.C.