By Scott T. Anderson, Shareholder, Rupp, Anderson, Squires, Waldspurger, P.A.
Date: March 2020
Minnesota Statutes, Section 15.99 requires a local government unit to approve or deny a written application related to zoning, septic systems, watershed district review, soil and water conservation district review, or the expansion of the metropolitan urban service area for a permit, license or other governmental approval of an action within 60 days. Although there are nuances to this law and an ability to extend the deadline for another 60 days, generally failure to approve or deny within 60 days results in automatic approval of the application. As is, the law does not allow for a suspension of the deadlines under the current health emergency.
Public Hearing Requirements
A question has arisen regarding a local government’s ability to hold required public hearings on land use applications while still complying with the recommendations of limited public gatherings and social distancing. In certain cases, following such recommendations may require the exclusion of all or a vast majority of the public from the meeting room.
In pertinent part, Minnesota Statutes, Section 13D.021, subdivision 1(3) (emphasis added) states: “… members of the public present at the regular meeting location of the body can hear all discussion and testimony and all votes of the members of the body, unless attendance at the regular meeting location is not feasible due to the health pandemic or emergency declaration.”
The government entity needs to decide whether attendance is feasible. It also must be mindful of subdivision 3 (emphasis added) that states: “If telephone or another electronic means is used to conduct a meeting, to the extent practical, the body shall allow a person to monitor the meeting electronically from a remote location. The body may require the person making a connection to pay for the documented additional cost that the body incurs as a result of the additional connection.”
Therefore if the local government finds that attendance of the public is not feasible, it needs to decide the procedure it will follow and its capability to provide for people attending remotely. This may vary from entity to entity. Additionally, because it is a question of practicality, the procedure that is followed depends on the capabilities of the governmental entity together with the time and ability to make alternative arrangements.
Remote Hearing Example
Below is an example of how one county handled the issue for conducting a public hearing for a land use application:
- All members of the board of adjustment/planning commission and assistant county attorney called in via conference call. The environmental service director was on site in the government building.
- The applicants called in via conference call.
- A notice was put on the radio and doors to the government building for the public to contact the environmental services director to obtain the phone number for the conference call. That information was also posted on the county’s website and social media.
- All votes were handled via a roll call.
- The board chair conducted the hearing as usual.
This is one way of handling the issue. There are many others, some of which may involve teleconferencing services available for purchase that could be tailored to a county’s specific needs. The keys are feasibility and practicality while attempting to allow public input into the hearing process.
As this area is highly nuanced and there may be other statutes and legal considerations, MCIT recommends working with the county attorney and/or private counsel regarding these matters.