Weeks after passing an ordinance allowing them to delay non-emergency public hearings as people are encouraged to stay away from public gatherings such as those hearings, the county board is scheduled to hold hearings next Wednesday on proposals like adding a car wash to a 7-Eleven and rezoning 60 forested acres along Goose Creek to industrial use.
And on Tuesday, at a meeting conducted under the new rules allowing them to relax some of the normal requirements for public meetings, county supervisors passed three ceremonial resolutions.
With the COVID-19 pandemic has come a relaxation of normal government transparency laws, including open meetings laws, which normally require most members of an elected body to be physically in the room to conduct business. With the viral outbreak, people have been advised to avoid gathering together, such as at those meetings, and new emergency ordinances have been passed to allow members of bodies like the Board of Supervisors to participate in meetings remotely. At the same time, while citizens are still permitted to speak in the boardroom in person, they have also been encouraged to participate electronically and the number of people in the county boardroom at one time has been limited.
As government attorneys have worked to navigate the new rules, Attorney General Mark Herring on March 20 issued guidance for localities on how to interpret their emergency powers under state law. Citing language in the Virginia Freedom of Information Act that it “shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government,” Herring interpreted the state law that “the purpose of the meeting is to address the emergency” to mean not just meetings that deal directly with the emergency, but also “decisions that must be made immediately and where failure to do so could result in irrevocable public harm.”
For Loudoun County’s Board of Supervisors, on Tuesday April 7 that included ceremonial resolutions recognizing an accomplished internationally-competing Tae Kwon Do team, a courthouse chief clerk’s 35 years of public service, and National Public Safety Telecommunicators Week.
County Attorney Leo Rogers advised supervisors it was their call whether to take those votes, which passed unanimously.
“A ceremonial resolution is certainly in the board’s discretion whether to do or not,” Rogers told supervisors. “It is not truly an action of the board. It is the board recognizing something that could also have been done through a proclamation. So I don’t see a way to exactly challenge that particular action. I think it’s in the board’s discretion to say whether or not it should be doing the ceremonial resolutions.”
In an interview before the meeting, Rogers said “what we’re looking at is, what do we need to do to continue the business of the county now during this pandemic.” He said he and other county and city attorneys across the state have been conferring on how to do that, and Chairwoman Phyllis J. Randall (D-At Large) has credited him with leading those discussions.
“A lot of things that are on the agenda are things that were on the agenda four, six weeks ago, requests that came in,” Rogers said. “And I think that what we’re trying to do is trying, as much as possible, to get our business done during very trying circumstances.”
Rogers has interpreted state law and Herring’s advice to allow “continuity of government.”
“Those essential functions of government might change as the disaster progresses,” Rogers said. “What may not have appeared to be essential in April, if this disaster is continuing in the fall, would be more essential.” He said that night’s vote on the county budget was a good example—“You need to adopt the budget.”
Land use applications, he said, are less clear.
While the county has a deadline to decide on land use applications put before it, the board’s emergency ordinance passed March 25 states the deadlines requiring action by a Public Entity—such as the deadlines to respond to a Freedom of Information Act request for government documents—are suspended, “however, the Public Entities, officers and employees thereof are encouraged to take such action as is practical and appropriate to meet those deadlines. Failure to meet any such deadlines shall not constitute a default, violation, approval, recommendation or otherwise.”
The ordinance also holds that non-emergency public hearings may be postponed as long as public notice is given so that the public knows when and how to present their views, and that the public can now participate in meetings electronically in addition to in-person.
But Rogers told supervisors on April 7 that applicants could force the county board to act anyway. And the Board of Supervisors has scheduled eight public hearings for next week.
The board has already faced some pushback on its plans. Calling in to participate in the meeting remotely, Gem Bingol of the Piedmont Environmental Council urged supervisors “to pause and reflect on the importance of the ‘public’ in public process before moving forward with nonemergency items.”
Seven of the board’s public hearings next week, she said, could be postponed.
“If your emergency ordinance regarding extensions of deadlines during the disaster and postponing nonemergency public hearings is inadequate, please consider asking your applicants to extend their deadlines in the short term,” Bingol said. Applicants to the Board of Supervisors can voluntarily extend those deadlines.
The public hearing scheduled for Wednesday, April 15 includes revisions to county ordinances governing the Combined Fire and Rescue System; a proposal to abandon a section of road at a neighborhood cul-de-sac near Aldie; a request to expand the Loudoun Mutual office building in Waterford; a plan for a new, illuminated sign at the Hamilton Safety Center; a request to rezone 60 acres along Cochran Mill Road and Goose Creek to industrial uses; a request to add a car wash to a 7-Eleven in South Riding; and a proposal to build a service station, retail shopping and restaurants on Rt. 50 near the Fairfax County border.
One more public hearing is scheduled on the county’s emergency ordinance. Although the county is required statutorily to hold a public hearing and pass the ordinance through a normal process within 60 days of its enactment, as an emergency ordinance it took effect as soon as supervisors voted on it March 25.
In some of those applications, the county government is also the applicant.
The Planning Commission, meanwhile, has public hearings scheduled for tonight, after cancelling public hearings last month. Tonight’s include an application to put an animal hospital in the Town Center Plaza shopping center in Sterling; a request to rezone 18 undeveloped acres at Loudoun County Parkway and Beaumeade Circle to a more recent zoning ordinance to join the nearby office parks and data centers; a request to add a sign outside an assisted living facility in Lovettsville; an application to put a data center on Rt. 50 near the Harris Teeter in South Riding; and an application to put a 199-foot communications tower east of Lovettsville.
To participate in the commission’s hearing tonight electronically, sign up in advance by calling Department of Planning and Zoning at 703-777-0246 and to get instructions on how to participate over the phone or on a computer.
“Ask yourself, who is the ‘public’ that we need for a healthy public process to occur, and are they able to participate effectively?” Bingol said. She pointed to people who are out of work, or public safety and health workers whose jobs are keeping them busy during the COVID-19 crisis, or who do not have reliable internet service to participate remotely.
“Every Loudoun citizen deserves an opportunity to participate in the public process, and even in extraordinary times, we shouldn’t ignore the obstacles to participation,” Bingol said.