The Future of Virtual Meetings and the Fast-Paced Development in North Carolina

In anticipation of the end of the COVID-19 state of emergency, local governments across North Carolina have already begun to require in-person meetings again. Many have mixed feelings about this transition away from the virtual meeting tools that have helped local governments keep up with the explosive growth in the state.

But does state law require meetings to be held in person? Could local governments choose to keep at least some required meetings virtual? In short: no, local governments are not legally required to hold meetings in person. They could continue meeting virtually if they so choose.

Local governments in North Carolina are required by state statute to hold public meetings to conduct their business at regular intervals, and until the pandemic, they had always complied with this requirement in person. When the lockdown began in March 2020, some local government boards began conducting their regular meetings via telephone or videoconference. Others were not sure if they were allowed to do so under state statute.

So in May 2020, the General Assembly passed a law that explicitly allowed local government boards to conduct “remote meetings” while the state of emergency is in effect. The remote meetings law provided needed clarification, as well as some broad parameters for how such meetings must be conducted to maintain openness and opportunity for public participation in the remote format.?

But local government bodies could hold meetings remotely before the 2020 law as long as their virtual meetings complied with the much-older Open Public Meetings Law. This law has requirements about public notice and access to most government meetings. It is one of the broadest open meetings laws in the country. Obviously, when North Carolina’s public meetings law was enacted 50 years ago, legislators were imagining that government meetings would be conducted in person. Yet nothing in the law requires this format. Furthermore, in 2007, the General Assembly recognized the need for updated guidance for 21st century meeting formats, and so it amended the Open Public Meetings Law to add public access requirements for “official meeting[s] by use of conference telephone or other electronic means.” Even after that amendment, though, almost all meetings continued to be held in person.?

Enter, the COVID-19 pandemic. Over the course of it, local government staff and boards have conducted dozens of remote meetings. They have refined how they conduct those meetings, worked out the kinks, and, for the most part, can efficiently address a long list of agenda items while allowing for meaningful discussion and public participation. The virtual meeting format has made it much easier for board members, who are either volunteers or paid very little for their service, to attend meetings. And it can allow for more public participation as many members of the public (especially in and around cities) are now familiar with remote meeting tools and can more easily fit participating in a remote meeting into their busy lives.

The remote meetings have also helped boards to manage the explosive and unprecedented pace of development requests in North Carolina. As many of us have learned, virtual meetings just tend to move faster than in-person meetings. Boards can fit in more agenda items. It is easier for members to attend meetings, thus making it easier to create a quorum for a binding vote. Staff have time to meet with more property owners to discuss potential development projects. More neighbors can attend virtual community meetings to obtain information about projects and give meaningful feedback that developers can incorporate before projects go to government decision-makers.?All of this translates into a reduction in costs of engineer and attorney time needed for the multiple meetings to obtain development approvals before developers can break ground on new projects.

Virtual meetings have downsides, of course. There is a closeness and sense of community that is fostered when meetings are held in person. And not every member of the public has the same level of familiarity and access to remote meeting platforms. For these reasons, many local government boards across the state have resumed in-person meetings. That does not mean, however, that in-person meetings are the best option for every meeting in every jurisdiction. Fear of new and more-dangerous COVID-19 variants also make in-person meetings less appealing.

What does all of this mean for the future of local government virtual meetings when the state of emergency—currently set to expire on April 5, 2022—ends? It’s murky. North Carolina courts have not addressed the “electronic meeting” option in the Open Public Meetings Law or the newer, temporary 2020 remote meetings law. It’s clear that the statutes do not speak to the meetings between staff and developers that are almost always required by land use ordinances before developers can submit a land use application. Nor does it speak to required meetings with neighboring property-owners. Even when the state of emergency ends, developers can certainly continue to hold those meetings remotely if allowed by local ordinances.

It is less clear is whether boards (all boards—even those that just make recommendations on development projects) could continue to meet virtually if they wanted to. As explained above, these meetings most likely could have been held remotely before the remote meetings law passed. And the remote meetings law explicitly says that it does not “supersede” the authority given for electronic meetings under the Open Public Meetings Law, which leads to the conclusion that public boards could meet remotely even when the state of emergency is lifted.?

But that implies that the parameters in the 2020 remote meetings law wouldn’t apply to remote meetings post-emergency, at which point local governments would have more freedom to conduct them however they please—which wouldn’t make sense. And, as matter of legal interpretation, courts do not usually interpret laws to be superfluous.

The bottom line is that, even though there are strong legal arguments that meetings may be held virtually, either lawmakers or courts may need to clarify what happens once the state of emergency ends. That way, local governments can confidently use some of the virtual meeting tools they learned during the COVID pandemic to keep up with the pace of development in North Carolina.