VLCT MAC often receives inquiries on how land use development review hearings and the Open Meeting Law intersect. What elements of the Open Meeting Law apply to development review board hearings held by appropriate municipal panels (AMPs)? How do deliberative sessions work? The following answers to some common questions, phrased broadly, can help you in your land use hearing proceedings. For more information on the Open Meeting Law, please visit MAC’s Open Meeting Law topic page.
Question 1. Must our appropriate municipal panel (i.e., zoning board of adjustment or development review Board and/or planning commission) follow the Open Meeting Law for our land use hearing?
Yes. This is because a hearing of the AMP (or board) is a gathering of a majority of the board members to discuss the board’s business and take action. Therefore, it constitutes a “meeting” as defined by law. It may be helpful to think of the hearing as a type of meeting or as an agenda item within the meeting. The Open Meeting Law (OML) requires public bodies to provide notice, an agenda, and minutes of each meeting.
Even though the OML generally requires notice of all public body meetings, in this instance, there are separate requirements for noticing land use hearings pursuant to 24 V.S.A. § 4464(a). A court will attempt to harmonize two seemingly conflicting laws, such as the notice required for a land use hearing versus a meeting, by applying the more specific provision. Only the Title 24 hearing notice is required in this case.
An agenda is also required for each AMP hearing pursuant to 1 V.S.A. § 312(d). Agendas have to be posted at least 24 hours before a meeting to a town website, if one exists, in the municipal office, and in two other designated locations. The agenda must also be made available to any person prior to the meeting upon specific request. To simplify your AMP’s preparation, we recommend making the agenda part of your notice.
Finally, your AMP hearings must have minutes (1 V.S.A. § 312(b)) that cover all topics and motions that arise at the meeting, give a true indication of the business of the meeting, be available for inspection or copying after five calendar days from the date of the meeting, and be posted to the town website.
Question 2. Can our AMP continue/adjourn a hearing to a later date?
Yes. If the hearing needs to be adjourned and then continued for whatever reason – e.g., for the applicant to retrieve further required evidence – the OML allows the AMP to continue the hearing to a later date, time, and place. To do this, the AMP must make a motion at the open hearing to continue the hearing to a specific date, time, and place. If the motion is seconded and approved by a majority, the AMP can re-open the hearing at the date, time, and place so motioned without posting additional notice or an agenda. This is because the OML treats continued hearings and meetings as the same meeting: “[a]ny adjourned meeting shall be considered a new meeting, unless the time and place for the adjourned meeting is announced before the meeting adjourns.” 1 V.S.A. § 312(c)(4). While a vote to continue the hearing preserves the initial hearing notice and therefore no further notice is required, we still recommend as a courtesy posting a new agenda for the continued hearing, as well as specifically notifying those interested persons who appeared at the first portion of the hearing and testified or submitted evidence.
Question 3. Can our AMP use executive and deliberative sessions?
Yes, but most of the time the AMP won’t be using executive session. Executive sessions are private, closed-door sessions that take place within an open meeting. Executive session is only available for specific limited reasons under 1 V.S.A. § 313, most of which won’t or don’t apply to AMPs when hearing development review applications.
Deliberative sessions are tied exclusively to quasi-judicial proceedings. Development review hearings are quasi-judicial proceedings. They are cases in which the AMP acts like a judge, takes oaths, hears evidence, and determines the individual rights of certain interested parties. Deliberative sessions, which may be private and closed from the public, typically come at the close of a hearing. Private deliberations are used by the AMP to weigh, examine, and discuss the evidence and arguments for or against a decision, and cooperatively draft the required written decision. Vermont law does not require an AMP to vote to enter deliberations, but we recommend closing the hearing and stating that the board will deliberate and issue a written decision within 45 days.
Question 4. Are deliberative sessions exempt from the Open Meeting Law?
Yes, the law specifically exempts the OML’s application to deliberative sessions: “Nothing in this section ... shall ... extend to the deliberations of any public body in connection with a quasi-judicial proceeding ... .” 1 V.S.A. § 312(e). This means the AMP may communicate for deliberative purposes through any means it desires such as phone, email, in person, etc., as a full board, without notice, and without violating the OML.
Question 5. If we use deliberative session to make a decision, do we have to hold a subsequent public meeting to announce our decision?
Generally, no. The law requires that AMPs issue a written decision within 45 days of the close of the development review application hearing. 24 V.S.A. § 4464(b). Written decisions by boards aren’t required to be announced in public so long as the decision is issued in writing and is a public record. 1 V.S.A. § 312(f). This means that after the AMP has heard all of the evidence in a hearing, it may close the public portion of the hearing, privately discuss and determine the merits of the case, and then circulate drafts of a decision for comment and approval prior to issuing its formal, written decision.
Alternatively, the AMP may decide to announce its decision in public, either immediately following the end of the hearing or at a later date, in which case the meeting minutes as required by the OML may suffice as the board’s written decision under 24 V.S.A. § 4464(b). MAC recommends that AMPs use private deliberative sessions to draft their written decisions in order to come to more thorough and reasoned decisions.
Question 6. If our municipality has a development review board (DRB) and a planning commission (PC) model, can the PC use deliberative session?
Generally, no. When a municipality moves from a zoning board of adjustment (ZBA) and PC to a DRB and PC structure of land use governance, Vermont law says that the DRB takes over all development review functions that previously were performed by the ZBA and PC: “[The DRB] shall also exercise the specified development review functions otherwise exercised under this chapter by the planning commission.” 24 V.S.A. § 4460(a). Since the PC only continues to perform its planning and bylaw development functions (which use only legislative hearings as a means to adopt town plans and bylaws, as opposed to quasi-judicial proceedings), it will no longer be an AMP performing development review. Therefore, the PC will not have the occasion to use deliberative sessions.
Question 7. Who has the right to testify at a development review hearing?
Because the OML applies generally to AMP hearings, you are forgiven for thinking that the answer is “anybody.” After all, meetings under the OML require that they are open to the public at all times and that “the public shall be given a reasonable opportunity to express its opinion on matters considered by the public body during the meeting, as long as order is maintained. ...” 1 V.S.A. § 312(h). However, because AMP hearings are quasi-judicial proceedings, the AMP has discretion to limit testimony and reception of evidence to those claiming interested person status. The OML also explicitly states that its broader public comment requirement does not “apply to quasi-judicial proceedings.”
Twenty-four V.S.A. § 4465(b) defines five categories of interested person, each one having been clarified and modified by various Vermont Supreme Court decisions. AMPs must give individuals appearing at hearings the opportunity to achieve interested person status, keeping a written record of their names, address, and participation. While the AMP can make its own determination at that time as to whether a person meets the definition of an interested person – and therefore exclude testimony of those who don’t meet it – it’s often a difficult determination to make. The AMP may instead simply accept testimony from all who claim interested person status and leave questions and disputes about their status to be decided by the environmental division of the superior court, should the AMP’s decision be appealed.
As always, MAC is here to help. For further help, email your questions to email@example.com or call 802-229-9111.
Carl Andeer, Staff Attorney II
Municipal Assistance Center