Governor Lamont has now issued (on March 21) Executive Order 7I, which modifies procedures and deadlines for municipal land use applications and decisions during the public health emergency. It is important to recognize that while the Governor has been issuing orders shutting down businesses for public health and safety reasons, this Order is one of several aimed at keeping a sector of the business community, land use and development, functioning and moving forward, consistent with public health needs. [Note: This Order is 7-Eye, not 7-One, and the provisions discussed here are Section 19.]
The Order covers municipal, not state, government action that deals directly or indirectly with land use.
The Order is a so-called "blanket order," meaning that rather than amending individual statutes or regulations, it contains modifications that apply to entire "chapters" of the General Statutes. The Order supersedes and modifies anything and everything in those chapters and their corresponding state and local regulations that is inconsistent with the Order. The Order refers to the chapters it supersedes as "the Covered Laws," which are:
- Chapter 14 - Freedom of Information
- Chapter 97a - Historic districts and historic properties
- Chapter 98 - Miscellaneous municipal powers
- Chapter 103 - Municipal sewer systems
- Chapter 124 - Zoning
- Chapter 126 - Municipal Planning
- Chapter 246 - Motor Vehicles (which contains Gen. Stat. 14-55, motor vehicle repair locations)
- Chapter 368k - Crematories
- Chapter 440 - Inland wetlands and watercourses
- Chapter 444 - Coastal Management
- Chapter 446i - Water resources/invasive plants (mainly, aquifer protection).
This new Order will work in tandem with Executive Order 7B, issued March 14 (and the subject of our Alert dated March 19, which allows municipal public agencies to conduct their meetings electronically, without public attendance. In other words, this new Order will govern the procedures for filing applications and petitions, issuing notices to interested parties, and agency decisions about such applications and petitions. Order 7B will govern the conduct of the public meetings at which the agency will review and vote on applications and petitions.
Our March 19 Alert contains several "Preliminary Observations" about land use business during this public health emergency. We will not repeat them, but they apply equally here.
Each new requirement explained below is best understood by keeping in mind that the justification is avoiding or minimizing in-person contact during the land use process.
New Order 7I's Provisions
Subsection a adds 90 days to any provision in existing law that allows for extensions of time. So, in the zoning statutes, the deadlines for starting and finishing a public hearing, and making a decision after a hearing, can presently be extended for a total of 65 days. This is now expanded to 155 days in total (65 + 90). The 155 extension days can be imposed during any part of the process – to open a hearing, close a hearing, or make a decision. One caveat is that the additional 90 days may be imposed by the agency without the applicant's consent (under the zoning statutes, for example, the applicant may, but is not required to, consent to use of the 65 days of extension – this provision remains unchanged).
Subsection b provides for the same type of extension as in (a) for demolition delays applicable to historic districts and historic properties.
Subsection c allows any notice that must be published in a newspaper to be posted on the municipality's website. If the newspaper notice must be published more than once, it must be posted on the town's website by the earliest publication deadline. The electronic notice must remain on the website until the action that it refers to has been completed, such as the hearing referred to having been closed.
Subsection d allows any notice or document that must be filed with a municipal clerk to be posted on the town's website. The notice must remain visible online throughout the process to which it relates. The electronic posting must meet the existing law's deadline (for example, a proposed zoning regulation amendment must be posted at least ten days before the public hearing).
Subsection e allows any requirement regarding sign posting to be satisfied by electronic posting on the town's website, in the same manner as the subsections above.
Subsection f says that any requirement of personal notice by mail – for example to property abutters, or an adjacent municipality, or a water company – can be satisfied by an email if the recipient email addresses are "reasonably available," and the timeframe in existing law (such as "within seven days of the date of receipt by the commission") is satisfied. If email addresses cannot be found, then the personal notice requirement can be met by posting a physical sign (the Order specifies its size and how long it must be in place), or by "regular U.S. mail," which can be done with an address list provided by the town.
Subsection g states that petitions (such as a zone change protest petition) may utilize electronic (collected online) signatures or through a compilation of emails (other existing laws regarding petitions are unchanged).
Subsection h governs appeals to Superior Court; it provides that the statutory deadlines for appeals are unchanged, but service of process (meaning the delivery of an appeal or complaint to a town official) by a "proper officer" (such as a state marshal) can be achieved electronically, and each town is required to post on its website the email address that the proper officer should use to serve the appeal.
Subsection i covers appeals from zoning enforcement officer or wetlands agent actions and allows appeals to be served electronically.
Subsection j requires that when the municipality's office reopens and commissions/agencies resume their regular procedures, all documents that were e-filed as required by the Covered Laws while the emergency order was in place should be filed in hard copy and made part of the town's permanent records within a reasonable time, at the appropriate town office or the town's land records. This subsection also allows the chair of an agency to waive any town rules about filing of paper copies during an application process.
Analysis of Order 7I: Compliance Advice and Potential Pitfalls
The Governor's General Counsel and the Office of Policy and Management have prepared the Order with input from several land use attorneys, but no doubt, there will be unanticipated issues and questions; we have many ourselves. This said, we offer the following:
- We believe that the Order is prospective only, meaning it modifies upcoming procedural requirements and timeframes (for example if an agency has closed a hearing and is now on the 65 day clock for action, that deadline can now be extended for up to any unused part of the 65 days, plus up to 90 more days);
- If you are an applicant whose application is being processed now, and you are able to grant extensions to the agency, it would seem appropriate to do so at this early stage of the public health emergency, while most agencies are figuring out how to conduct business under Order 7B and this new Order 7I;
- If you choose to utilize any part of the electronic filing allowed by this Order, be sure to confirm the date, time, and completeness (an issue with large e-files, videos, plans, etc.) of your filing, and receipt;
- Identifying the statutory "date of receipt" continues to be the starting point for all deadlines, so identifying this date will be even more critical under this new Order;
- The Order says nothing about payment of application (and peer review) fees, so it will be important to confer with town staff about how to handle any required payments (such as by wire transfer, if allowed);
- Automatic approvals based on agency inaction for a specified time (such as no action on site plan after 65 days) may be a troublesome issue, so town staff and applicants should coordinate so that no automatic approvals are triggered or claimed inadvertently;
- Note that the Order refers generally to the town's website, but be sure to check both the town's website as well as the agency's or commission's section of that website; the Order appears to make either one legally sufficient;
- If you are planning to file an application in the next few days, you should consider waiting until the agency staff is set up (under Order 7B) for electronic meetings, and make sure it is able to accept the electronic filings, and confirm what email address or website to use;
- While the Order now allows an application process that could last up to almost eight months, that could be a difficult timeframe for an application -- the effectiveness of a well-presented application might be lost if the hearing resumes several months later;
- We expect that agencies and their staffs will allow withdrawal and refiling, if done due to the emergency order, without new application fees;
- Keep in mind that any inquiry about a deadline, and any agreement to extend a deadline or excuse procedural compliance, should be by email, with the date and request clearly stated, copied to every potentially interested party, including known opponents;
- Be careful to note the difference between a "continuance," which is a request to postpone a proceeding in progress to a later date, and an "extension," which is a request to postpone a deadline;
- As the Order anticipates, when it is canceled by the Governor, we will face the conundrum of reverting back to the old/current system after operating, weeks, or months under this Order, including the mandate of filing or recording with the town all documents that were e-filed as allowed by the Order.
Credit Where Due
This new Order was crafted over more than a week, under enormous time pressure, and while all involved were adjusting to working remotely. Leading the work were Attorney Doug Dalena of the Governor's office, Attorney Claire Coleman of the Office of Policy and Management, CT Bar Association Planning and Zoning Section Chair Jackie Kaufman, and Professor Sara Bronin, with help from land use attorneys Zizka, Branse, Roberts, Slater, Chapple, Souchuns, R. Williams, Shansky, Bloom, Feinberg, Hennessey, Merriam, and Chapman, and several attorneys in our office. A great team effort.
As with Order 7B, we are here to help. The towns have not shut down, and they have not been relieved of their duties. While these two new Orders impose a new regime, we believe that with careful planning and execution, most land use business can be carried out during this public health emergency.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.