Legislation Enacted to Address Municipal Open Meetings and Deadlines During COVID-19

On Monday, April 20, 2020, Governor Wolf signed SB 841 into law as Act 15 of 2020 (“Act 15”), adding a new Chapter 57 to Title 35 (Health & Safety) of the Pennsylvania Consolidated Statutes to address a number of different issues that have arisen during the COVID-19 crises.

Among the issues addressed by Act 15, the legislation provides for new rules related to the conduct of local government meetings and hearings during the ongoing COVID-19 Disaster Emergency declared by Governor Wolf on March 6, 2020. It also provides for a suspension of certain time periods for action by local government agencies on plans, applications, zoning hearings, and other municipal decisions.

Under Subchapter E of the new law, until the COVID-19 Disaster Emergency Order is lifted by the Governor, local government agencies will be permitted to conduct meetings remotely using any “authorized telecommunications device,” provided that the agency complies with certain requirements. The law broadly defines “telecommunications device” to include any device that would allow for audio communication between individuals. As such, a quorum of agency members will not have to be physically present at the same location in order to conduct business, so long as a quorum of members is available on the telecommunication device, be it a conference call or video conference.

Act 15 also relaxes Pennsylvania’s Open Meetings Law requirements related to appropriate public notice and method of public participation in these new telecommunication meetings. During the pendency of the COVID-19 Disaster Emergency Order, the following notice and participation requirements apply:

• “To the extent practicable” the agency shall post advance notice of each meeting on the entity’s publically-accessible internet website, if any, or in an advertisement in a newspaper of general circulation, or both. The notice must include the date, time, technology to be used, and information regarding how the public may participate.
• The agency may hold meetings without the required notice in order “to address any issue related to the Disaster Emergency,” but it must “post” draft minutes of the meeting within 20 days after the meeting or before the next regularly-scheduled meeting, whichever is earlier.
• Except for matters directly responsive to the COVID-19 Disaster Emergency Declaration, the agency may not consider any application, plat, plan, submission, appeal or curative amendment during a meeting unless notice to the public and “interested parties” has been provided at least five days prior to the meeting via a post on the website, or in a newspaper of general circulation, or both.
• “To the extent practicable” the agency must allow for public participation in the meeting through an authorized telecommunication device or written comments. Such written comments may be submitted via mail or an email established to receive such comments.

In addition to allowing remote public meetings, Act 15 automatically suspends any statutory time periods for an approval, application, plat, plan, submission, appeal or curative amendment received or pending as of the date of the COVID-19 Declaration of Disaster Emergency for a period of 30 days from the effective date of the proposed legislation. For example, if a zoning hearing application was filed after or pending at the time of the Governor’s Declaration, the time period for the zoning board to conduct or complete the hearing (or the balance of that time period) would only begin to run again 30 days after the effective date of the proposed legislation. The local government is supposed to notify applicants of this delay, but failing to do so does not affect the tolling of the applicable time period.

At any point during this 30-day delay period, an applicant may request that the meeting or hearing be held. However, the government body has the discretion as to whether to proceed with the request or not. If the proceeding does go ahead, any applicant or party receiving “actual notice” of the proceeding is deemed to waive any challenge to the proceeding under the Open Meetings Law or “any other provision of law that governs the notice, conduct or participation in a meeting or proceeding.”

While Act 15 addresses several pressing issues, it does not define the phrase “actual notice” and it also does not address how it relates to certain notice and procedural requirements of the Pennsylvania Municipalities Planning Code.

Our team of real estate and land use professionals stand ready to assist and counsel our clients on how best to proceed in the face of these new rules.

For more information, please contact Ambrose Heinz or the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.