In younger days I traveled through African game lands in Uganda and explored an Amazon tributary in Bolivia. Both times I was confronted with the ironic fact that it’s easier to protect yourself against the large, loud, dangerous things you can see than the small things you cannot.
If you’re going to be sidelined or hospitalized, chances are it will be from diseases carried by mosquitoes or the insidious bacteria in, well, everything you encounter. You’re personally vulnerable, and you know it.
As a child, I absorbed the opposite lesson about the invulnerability of American government. Nothing small could harm us, and the only possible threats to the great American experiment with open and participatory government were the menace of nuclear war and the bugaboo of never seen but oft-discussed Communists seeking to penetrate our governments in every conceivable way.
As an adult working actively in local governments across the state, I perceived governmental vulnerability differently – that the greatest threat to open and participatory government is the not uncommon effort by the very people we elect to conceal their actions and communications from the public when our laws require otherwise. The threat of make-believe Communists is more appealing.
But that was how I thought a full month ago in the way-back-then-times preceding the second week of March, 2020. Unlike Pearl Harbor and 9/11, there was no magic date when our lives changed. Rather, it was the cascading waves of newscasts and White House briefings and CDC reports that formed a tsunami of awareness that none of us is safe in public spaces, and many of us will die from a virus that we cannot see.
Stay-at-home orders have been issued and updated. Our awareness of this danger is more acute in April than it was in March. Restrictions have been tightened, not loosened, and it looks like the ban on public gatherings will be extended. Return to normalcy – whatver that means anymore – might carry a 2021 date.
Now more than ever, our governments must act, but our statutes only seem to recognize a governmental “meeting” as a chamber full of council members and the public in close quarters. Virtual meetings are experimental at best, and for the first time in our nation’s history, we’re confronted with a question never before asked: can we conduct open and participatory government through phone calls and video feeds?
It’s not a trivial question, especially for governmental decisions that, by statute, can be made only after the public has an opportunity to comment. Among the casualties of this virus are all of my clients seeking various land use permits and rezonings. Fox News and the Washington Post haven’t talked about them yet, but they’re victims nonetheless.
My hometown, High Point, has cancelled all public hearings in April and May. The city council will meet electronically and do a live stream on YouTube so the public and media are aware of what transpires. But if your development project cannot move forward without a public hearing, then your contracts and financing and timetables will have to adjust.
Such adjustment is commonplace now. Between early March and mid-May, I had 16 public hearings scheduled in 9 different jurisdictions. All were cancelled or postponed, although at least one is being resurrected. On April 20th I will represent the developer of a 193-acre industrial project at the Greensboro Zoning Commission from my living room through the new technology of something called “ZOOM.” Neither law school nor a low-tech lifestyle prepared me for this, but I’m rising to the challenge.
Last week I spoke to Robin Tatum, Raleigh’s City Attorney, who told me that Raleigh is conducting all “non-controversial” land use cases at the Board of Adjustment through virtual meetings.
But my clients develop asphalt plants, rock quarries, solar farms, landfills, and cell towers. Controversy is built into the process, and the pathway for these land uses is uncharted because they are quasi-judicial and the public’s right to participate through presentation of evidence and cross-examination is well-established.
Cheap comparisons of COVID-19 to WWII have been common, but one fact seems inescapable: life in America after the Age of Coronavirus will look vastly different than life before.
As to what that life will look life, I’m eagerly curious and cautiously hopeful. It’s possible that our governments will find ways to operate with greater openness and even more public participation once our statutes catch up and we figure out how to incorporate technology. If so, you heard it here first.
As a case in point, this past week I learned that our minister’s weekly sermon posted to Facebook had 3 times more views than the number of weekly attendees before services were temporarily cancelled. I was as pleased as I was surprised.
I close with this thought. Imagine a world where you can speak to the entire board of commissioners or city council in real time from a lounge chair on your back deck with a beer in one hand and your phone in the other.
That world might already be upon us.
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