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As part of reopening a post-pandemic society, it is appropriate to identify whether changes in planning policy made during the pandemic should remain after the emergency has receded.聽 From parklet dining to mask requirements, the change that stands out far above all others in the land use context is how video conferencing technology at public meetings has transformed citizen participation.

In the recent Historic Resources Code Project code amendments, the Portland City Council logged its longest single day public hearing on a land use matter 鈥� six hours. Over a two-day consecutive hearing period, the council heard from 147 people. This would certainly have been impossible in an in-person approach.

Having written about this in multiple articles previously, we have applauded the move as expanding access while noting that a solely virtual meeting platform effectively disenfranchises those without private internet access. We explored the balance between protecting public meetings from 鈥淶oombombing鈥� and maintaining meaningful public access. With the expiration of emergency declarations restricting gatherings, many states are examining the role of the virtual technology over the long term. These efforts should inform revisions of Oregon鈥檚 public meetings law and local public participation practices as well.

Although many jurisdictions are holding live, in-person meetings, presumably with the expiration of 30 days since the governor鈥檚 emergency order was lifted, all remaining holdouts, including Portland, will likely resume in-person meetings starting in May. That said, Oregon鈥檚 public meetings law was amended in 2021 through House Bill 2560 to require local governments to provide a virtual access option at all public meetings 鈥渢o the extent reasonably practicable.鈥� Quite broad in its scope, this virtual option applies to all land use hearings before any elected or delegated decision maker, including proceedings before a hearings officer. Where oral or written testimony is allowed in-person, it requires making the same accommodation virtually.

With respect to providing access to those without private internet connections, expiration of the emergency declaration served to reinstate a previously existing requirement that where a virtual meeting is held, the public body must 鈥渕ake available 鈥� at least one place where, or at least one electronic means by which, the public can listen to the communication at the time it occurs.鈥� It would advance the public interest to see those meetings that remain entirely virtual to do more than just announce access on a live web feed or a dial-in number but actually identify a physical location, such as a library or community center meeting space, where virtual access can be provided.

Beyond these two provisions, the Oregon public meetings law is silent in setting any limitations for virtual participation by decision-makers, with regard to notice or other participation requirements. For example, the New York Legislature recently amended its open meetings law to provide that the public must be able to be physically present at one or more of the locations where a quorum of decision-makers attend. Guidance on these changes from the New York Commission of Mayors explains that this would include a quorum of decision-makers in attendance in the same space, such as at city hall where the public could also attend, or individual members attending from different locations so long as the public is invited to attend at these different locations as well.

This is interesting as it creates the opportunity for face-to-face political accountability that is entirely missing in an all-virtual format. The California public meetings law does not require any physical connection between the public official and the public but it does require that at least of a quorum of officials participate from physical locations within the jurisdiction. The impetus for this limitation is not entirely clear.

The recently enacted New York law goes on to provide that where public officials appear virtually, they must be 鈥渉eard, seen, and identified鈥� throughout the meeting. Under this provision, decision-makers would be prohibited from turning off their camera or pushing the mute button. Although this might not matter to individual decision-makers participating from home, such a requirement could impose a significant challenge in smaller or more rural jurisdictions where the virtual technology from the hearings room does not zoom in enough to allow for speaker identification. Knowing whether the person speaking is an elected official or staff can often be critical to meaningful participation. Because the minimum level of event or action capture must be included in written meeting minutes in Oregon, a similar amendment would be well taken, although some provision for funding would certainly improve meeting technology.

Although the emergency declaration did provide some direction, existing Oregon law does not articulate any additional requirements providing notice regarding opportunities for participation in a virtual hearing. In the all-virtual emergency, some jurisdictions required 24-hour notice in order to provide virtual participation. People generally bristled at the idea of having to anticipate participation in a public meeting in advance.

The New York amendments require that public meeting notice inform the public of: the use of videoconferencing, where the public can view and/or participate in the meeting, and how to view meeting materials. These provisions make no reference to requiring advance requests for virtual accommodation; however, overall meeting security as well as efficiency counsel retaining this requirement.

Finally, New York and California both require that where virtual participation is authorized, it must occur in real time. In New York, 鈥渢he public body must ensure that the videoconferencing provides the same opportunities for public participation or testimony as in-person participation or testimony.鈥� Although this may have been the intent behind the requirement in HB 2560 that virtual oral testimony be allowed at all meetings where oral testimony is allowed to be presented in person, this does not suggest provision for participation on equal terms. With the required silencing of microphones, the ability to raise a point of order objecting to a procedure in a virtual meeting is not the same as in person.

Without anything more from the Oregon Legislature to require continued virtual meetings, local governments will be left to experimentation to determine the appropriate levels of access. However the details play out, it is critical that in the land use context, local governments work hard to keep the expanded reach without losing the personal connection.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither of the authors nor the 91视频 guarantees the accuracy or completeness of any information published herein.