In the September 2013 issue of A Newsletter for Municipal Inland Wetlands Agencies, an article appeared regarding public meetings versus public hearings. The article's last sentence stated: "If the public is allowed to speak at a regularly scheduled meeting on the merits of an application before the agency, then the agency has turned such meeting into a public hearing for that particular application without meeting the criteria or requirements of both the Inland Wetlands and Watercourses Act or the Freedom of Information Act." This comment, which was more of a reflection upon the basic structure of inland wetlands and watercourses regulation under our enabling act, the Inland Wetlands and Watercourses Act ("Act"), has generated a number of questions and comments. It is hoped this follow-up article will answer those questions and alleviate concerns about how public meetings are conducted in compliance with the Act.
Municipal inland wetlands agencies conduct most of their business in regularly scheduled public meetings that are not public hearings. During these meetings agencies may provide for a public comment period on their publically noticed agenda. This agenda item presents a limited but important opportunity for members of the public to interact with the agency: for example, to ask procedural questions or bring potential violations to the agency's attention. If at a regularly scheduled meeting there are members of the public present who are interested in an application currently before the municipal inland wetlands agency for consideration, the chair, at his/her sole discretion, may grant the courtesy of allowing a person in attendance to be heard. That person's comments or questions should be limited, however, to those matters that will help the public understand basic facts about what is being proposed (i.e., who, what, when and where - who is the applicant, what is the address of the project, or when will the project start). The willingness of a municipal inland wetlands agency to entertain public comments of this sort at a regularly scheduled meeting during which applications or other matters are being considered does NOT automatically in fact or law convert the meeting into a public hearing.
If the chair grants the courtesy of allowing members of the public to speak at a regularly scheduled meeting during the agency's consideration of discrete agenda items such as, for example, an application for a permit to conduct regulated activities, the public's comments and/or questions should NOT be related to the MERITS of the application currently being considered by the agency. Comments and/or questions regarding the merits of an application include: reasons an application should be denied; suggested changes to the application's proposal(s); or observations about the site of the proposed regulated activity. The only time a municipal inland wetlands agency should take comments on the merits of an application currently before the agency is at a public hearing duly noticed as such. If there is a large number of people present at a regularly scheduled meeting who want to speak on a particular application, or even if there are a few people but their comments address the merits of an application, this should be an indication that the application would likely benefit from a public hearing format. The municipal inland wetlands agency needs to be sensitive to their responsibilities under the Act, and should determine as early in the process as possible if a public hearing is warranted.
Remember, the Act in section 22a-42a(c)(1) states that an agency shall NOT hold a public hearing on an application UNLESS IT DETERMINES: 1) the proposed activity may have a significant impact on wetlands or watercourses; 2) a petition signed by at least twenty-five persons who are eighteen years of age or older and who reside in the municipality in which the regulated activity is proposed requests a hearing and is filed with the agency not later than fourteen days after the date of receipt of such application; or 3) the agency finds that a public hearing regarding such application would be in the public interest. These are formal legal prerequisites to engaging the public hearing process, because the Act expresses a preference for the selective use of the public hearing procedure. The municipal inland wetlands agency must first "determine" and only then formally notice a public hearing in accordance with the Act's procedures. The agency should not allow a de facto public hearing-type proceeding to develop. Remember that "fundamental fairness" is the guiding principle behind the use of procedures mandated by the Act in the proper discharge of the agency's legal functions. There are certain "procedural expectations" that are critical to achieving such fairness: that the agency has assessed the application; that the applicant knows whether to prepare for a public hearing; and whether the public expects to prepare to attend a public hearing. Public meetings that "morph" into de facto public hearings unsettle all of these procedural expectations.
Finally, if an application currently before a municipal inland wetlands agency HAS been scheduled for a public hearing, then it is not only best to defer all questions and comments on that particular application to the public hearing, but it is also legally required.
