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Our Town by William Kelly: May 12, 2021

Town Council orders boards to resume in-person meetings

Some of the town’s boards and commissions will be returning to the meeting chambers at Town Hall in June, the Town Council decided Tuesday.

The Landmarks Preservation Commission, Architectural Commission, Code Enforcement Board and Retirement Board of Trustees all will be required to have a physical quorum of at least four members present in the meeting chambers, the council unanimously decided.

But, during the summer months, not all members of those boards will be required to attend the meetings, the council said. Some will be allowed to continue to participate through Zoom.

The temporary “hybrid” approach is intended to meet the town’s legal obligation to conduct public business in a public setting while remaining sensitive to board members’ health concerns amid the ongoing Covid-19 pandemic.

The commissions’ May meetings will be held electronically as previously planned.

Nearly all town boards have been meeting remotely for the last year for the safety of their members and the public during the pandemic.

The council returned to the meeting chambers in October after meeting virtually for six months. It had planned to allow the other town boards to continue meeting electronically until September.

But the council changed course Tuesday after Town Attorney John Randolph advised it to reconsider the earlier decision based on legal concerns.

To promote commerce, Gov. Ron DeSantis on May 3 issued two executive orders eliminating or superseding pandemic-related local government mandates on individuals or businesses.

Randolph said those orders do not apply to virtually held government meetings.

But he said he’s still concerned about the potential for legal challenges to decisions made by the code and retirement boards and landmarks and architectural commissions because those bodies have decision-making authority.

The boards have been meeting electronically in apparent contradiction with state law since Nov. 1, when DeSantis ended his emergency declaration allowing government bodies to convene electronically instead of by physical quorum, which state law normally requires.

In November, the council decided – under the authority of its own declaration of a town-wide Covid-19 emergency – to allow the boards to continue to meet virtually after landmarks and architectural commissioners said they feared for their health if forced to meet in person. The Covid-19 infection rate was much higher at that time, and vaccinations weren’t yet available.

Randolph said at that time that, if the commissions continued to meet virtually despite the governor’s order, their decisions could be legally challenged.

On Tuesday, Randolph said some applicants and their attorneys have made it clear that they don’t want their development plans to be considered electronically.

“I have had attorneys who have complained and indicated our virtual meetings are in violation of what the governor stated when he said everybody needs to get back to work,” Randolph said. “I think there is a potential argument to be made that we are acting under our own emergency and that the governor has invalidated that.”

He said some applicants, and objectors to development applications, have asked that consideration of those projects be postponed until they can physically appear before the board.

The review process can easily cost a property owner thousands of dollars.

“They have architects, lawyers and a planner,” Randolph said. “They are very concerned about getting the best hearing they can get.”

Council members were concerned that some board members might still object to meeting in person out of fear for their health. That puts the council in a tough spot, Mayor Danielle Moore said. “All the commissioners have to say is that they fear the pandemic,” she said.

Some board members may have made plans to be out of town during meeting dates based on the council’s earlier stated intention not to resume physical meetings until September, Council President Margaret Zeidman said.

With infection rates and deaths falling, the pandemic outlook is much better than just a couple of months ago, she said. But there is still a threat.

“We do have variants,” Zeidman said. “And [board members] would be traveling back and forth on planes” if required to return to town for meetings during summer.

But Zeidman said the council also has a responsibility to members of the public who want to bring development applications before the boards. “We have to be careful about that,” she said.

The council also is obligated to abide by the law, members said.

The council’s authority has limitations, Councilman Ted Cooney said. “Our hands are tied by state law and the governor’s orders,” he said.

Councilwoman Julie Araskog noted that many of the boards’ proceedings are quasi-judicial in nature. “I feel we need to get [board] business back into a room,” she said. Otherwise, “we are putting ourselves at [legal] risk.”

Randolph said the presence of physical quorum at the board meetings will meet the town’s legal obligation. But he said the council should encourage all board members to physically attend.

Tuesday’s mandate does not apply to other town boards including the Planning and Zoning Commission, Recreation Advisory Commission or Shore Protection Board, whose decisions are all advisory to the council. Town Council committees will also continue to meet virtually for the time being.

Also Tuesday, the council unanimously voted to extend the pandemic-related town-wide emergency declaration until June 8, when it will consider a further extension.

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