Wednesday, October 26, 2011

Telephonic presence at the hearing?

I'm sure it's just a matter of time, but since I began practicing law, I can't remember a situation where a zoning board member attended the zoning hearing by telephone. In a recent case from Maryland,challengers to a nonconforming use argued that the failure of one of the board members to physically attend the meeting and his participation solely by speakerphone was in violation of the state Open Public Meetings Act.The Maryland court rejected the argument. The court found that there was nothing in the Open Public Meetings Act that rendered telephonic participation illegal, and that since the other members of the board, and the other attendees at the hearing could hear the board member through the speakerphone and a board member could hear them through the speakerphone, there was no apparent violation. Tuzeer v Yim, 2011 WL 4537172 (Md Ct Sp App 2011).

The Tennessee Open Public Meetings Act, TCA §8-44-101 et seq., appears to permit participation by telephonic communication. At least there is no prohibition of attendance by conference call.

TCA §8-44-108 does limit participation by electronic or other means, but that section applies only to state government and not to local land use boards and commissions. It would seem, that to the extent that reasonable precautions are taken, telephonic or physiographic participation by board members should be appropriate.

However, the staff of the zoning board or planning commission should be prepared to make certain adjustments so that the physically absent board member has all of the documents that are available to those members present at the hearing. Furthermore, to the extent that new documents are presented by the parties to the hearings, those documents should at the very least be described to the physically absent board member so that the importance and significance of the documents can be evaluated. Certainly it would be better for the absent board member to participate by video graphic means so that he or she could see the documents on camera.

Finally, it is very common in Tennessee for the staff to make short presentations concerning upcoming hearings by way of setting the stage for the ultimate decision. Those kinds of presentations or recommendations should certainly all be submitted to the absent board member so that he or she can review those even though not physically present at the hearing.

By following those simple guidelines, it would seem that electronic participation should present no obstacle to decisions by local zoning boards and planning commissions. Perhaps however it is just simpler to have a couple of alternate members who can substitute if one or more of the board members has to miss a meeting. Certainly it seems much easier in the long run.

I might add, that although there is little or no authority for alternate members in local land use boards and commissions, it seems very likely that any court called upon to determine the legality of such alternative members would conclude that there's nothing inappropriate about them.

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