As we enter into the third year of the pandemic, the real estate market, building, and development are thriving, and unprecedented flexibility has permitted remote attendance for work, school, and the day-to-day operations of businesses. Governmental bodies are limited by the requirement that they comply with Indiana’s Open Door Law, which ensures the public has access to public meetings.
Prior to its amendment, the Open Door Law prohibited members of local government bodies, such as plan commissions and boards of zoning appeals, from being counted present and taking part in final action during meetings and hearings if they participated remotely. This obviously created problems as social distancing and governmental mandates did not permit local governments to have in person meetings for extended periods of time. Landowners and developers must move forward with their projects, but under the prior version of the Open Door Law, local governments were often restricted from taking action on applications and petitions that were before them. If the required number of members could not be present in person for a meeting, the meeting had to be cancelled or postponed, causing delays for individuals and companies that had matters pending that needed approval before taking steps to use property the way they intended. Additionally, while members could participate remotely, they could not take part in final action.
The amendments to Indiana’s Open Door Law in April 2021 provide local governments with greater flexibility by expanding their ability to conduct meetings virtually. Members who participate remotely may now be counted as present for purposes of establishing a quorum and may take part in final action without the declaration of a public health emergency if certain requirements are met. However, it is important to note that remote participation in meetings is not unlimited. There are still safeguards in place to protect the rights of the public when members participate remotely. Requirements include the adoption of a written policy establishing procedures for a member’s electronic participation in meetings, remote participants must be both seen and heard to vote, additional notations in the meeting minutes, and that all votes be taken by roll call. The Open Door Law also limits the number of meetings a member may participate in remotely and the type of votes that a remote participant may cast.
New waves of the pandemic should no longer create sizable delays in the process of obtaining local government approval for variances, site development plans, rezoning, and other land use proposals, because of the additional flexibility plan commissions and boards of zoning appeals now have additional flexibility to move forward with meetings and hearings when a quorum cannot be physically present.