Legislature Delays Enactment of 160D and Enacts Rules for Remote Meetings During State of Emergency

By Lisa Glover

S.L. 2020-3, SB704 was passed by the House and Senate on May 2 and signed into law by the governor on May 4. It contains the following of interest to ZPLU members:

• The effective date of N.C.G.S. Section 160D is now August 1, 2021 (instead of January 1) (§ 4.33). (*But see newly filed S720, which may change the effective date again, and which also updates Chapter 160D with amendments made to the planning statutes last year in Session Law 2019-111).
• BUT local governments can officially incorporate flood insurance rate maps (FIRM), watershed, and other maps into their ordinances now (160D was going to explicitly allow that when it became effective) (§ 4.34).
• “Remote” meetings of public bodies are permitted. (§ 4.31) There are many details in that bill that should be closely examined; highlights are:
  • “Remote” meetings are only permissible under the new statute when the governor or the legislature have declared a State of Emergency for a given area.
  • The current statute on “electronic meetings” (N.C.G.S. Section 143-318.13) is not superseded and may still be used when appropriate.
  • At least one member of the public body must be participating remotely for this statute to apply, and must be in “simultaneous communication” through “conference telephone, conference video, or other electronic means.”
  • The meeting must be streamed live online.
  • Public hearings may be held, and decisions made*, but written comments must be accepted during the notice period for the hearing and for 24 hours after the hearing. (*but see this UNC School of Government post for a different interpretation of this provision).
• Quasi-judicial hearings may be held remotely, with several caveats. I’m just going to list them verbatim and without comment, because there can be varying interpretations of what this means:
  • The right of an individual to a hearing and decision occur during the emergency.
  • All persons subject to the quasi-judicial proceeding who have standing to participate in the quasi-judicial hearing have been given notice of the quasi-judicial hearing and consent to the remote meeting.
  • All due process rights of the parties affected are protected.
• Closed sessions may be held.
• The legislation contains specifics on notice, quorums, voting, and members identifying themselves when they speak or vote. In general, members are counted as present for quorum purposes, and their votes are counted as if they were physically present, when they are connected to the meeting by simultaneous communication.