IndyBar: Issues in Presenting a Land Use Case via Virtual Hearing

By David Retherford, Attorney at Law

If you are preparing for a WebEx presentation in Indianapolis for a rezoning or variance case, especially one which is contested by Department of Metropolitan Development staff, by significant remonstrance, or both, consider the following tips/clarifications:

1. Connectivity.

A. Start trying to connect to your hearing well in advance and call staff if you are having problems connecting. Have plenty of wi-fi bandwidth available. Losing connectivity during the hearing means you either miss part of the other party’s presentation, or your case has to be continued.

B. To see at least individual video of some of the board members and also the exhibits, separately sign in via computer to access the video feed from the hearing.

2. Prepare.

A. Weeks before your presentation, listen to the archived recording of a prior virtual hearing of the board you will be appearing in front of to see how they are handling the new virtual processes and also how other presenters are handling the practical delays and surprises that the virtual process can create.

3. Video Issues.

A. There is presently no video shown of the parties. Do not underestimate the negative impact of the loss of visual interaction with the decision makers. You will not be able to gauge if they need more details before you move on to the next topic. You will likely not have time to fully explain nearly as many issues in a virtual hearing.

4. Muting.

A. Confirm with staff days ahead of time exactly when you will be muted. Being muted during the other side’s presentation, especially during rebuttal, limits your ability to object to new evidence submitted illegally during rebuttal, or to cross examine.

5. Exhibits/presentations.

A. Your presentation is to be sent to the planner the day before the hearing. The order of your exhibits cannot be changed later than the morning of the hearing. This also means you need to guess well as to what exhibits might be needed to rebut either staff issues or the other side’s testimony. The “trial by ambush” risk here is significant as you will not be able to add exhibits live to deal with surprises as the hearing unfolds.

B. You cannot control the speed at which exhibits are changed, nor can you control a pointer, and every change of exhibit has to be handled via an oral command to the moderator. You will likely want fewer and clearer exhibits than you would use in a live presentation.

C. Request that your planner promptly email to you upon receipt every exhibit submitted by the opposing side as well as every email, letter or communication that they receive prior to the start of your presentation. Also, ask your planner to confirm if and when each of these exhibits, letters, emails, etc. were sent to all of the board members.

D. Know exactly when the packets which some of the boards receive prior to each hearing are finalized and sent out and ask for a copy of the packet sent out on your case. If you want your exhibits to be read by the board members prior to the hearing, they need to be included in those packets.

6. Emails and/or letters of support.

A. The COVID-19 rules discourage more than one or two presenters for each side. Instead, parties are encouraged to submit their testimony in advance and in writing. Similar to your presentation exhibits, if you want to make sure these letters or emails are read ahead of the hearing, they need to be included in the packet sent to the board members approximately a week prior to your hearing. Last-minute emails or letters are at significant risk of being missed or ignored, so consider a continuance if you miss the deadline to have them included in the packet sent to the board.

B. Consider confirming with the board members (prior to your presentation) which of your submitted emails/letters of support of your position they have already read. If you are confident that the letters or emails have been read by the board members, you can then save time and highlight the important points in each and include them as exhibits to be emphasized in your presentation. Otherwise, you will need to plan time to read the most important supporting letters into the record during your presentation window.

7. Public testimony during the hearing.

A. For those members of the public who wish to offer testimony/comments live, the COVID-19 rules provide a unique opportunity for them to submit emails sent during the hearing to a specific email address, or comments made via the question and answer interface on the WebEx screen. Either staff or the moderator is supposed to read them into the record at the close of that presentation. It does not appear that the time spent doing so impacts the time allotted to the presenting party. If you intend to utilize this method to submit testimony from supporters of your side of the case, please confirm with staff exactly how this will be handled prior to the hearing.

8. Councilor’s Testimony.

A. Depending on the board, if the councilor signs in and testifies via WebEx, they will be given time outside of your presentation time to testify and/or read their letter into the record. Otherwise, you need to plan to either read that letter into the record during your time or make sure that the councilor’s letter is included in the packet sent to the board prior to the hearing.

9. Time.

A. The COVID-19 rules have not added any time to the allotments given to each side for their presentation or rebuttal. However, some board chairs appear to be more lenient than others in permitting extra time in a virtual hearing. If you are not comfortable with the allotted 15 minutes in a virtual scenario, or suspect that you will need more than five minutes for rebuttal, then either confirm with the board chair that more time will be permitted before you start your presentation or make sure your client understands the risk of proceeding as a virtual hearing without relief from the time allotments.

10. DP Cases.

A. A DP rezoning case typically skips the hearing examiner step and goes straight to the Commission. If your DP case is contested and complicated, consider a special request to have the case heard first by the hearing examiner. This creates an opportunity to see if the case can be properly presented in a virtual hearing, while still preserving the right to appeal an adverse decision to the Commission where the client can reconsider the risk of a final hearing under the COVID-19 rules.•

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