As the nation battles COVID-19, many local governments have transitioned to telework and limited access to government building by visitors and non-essential staff. In adjusting to these changes, local governments have continued to balance the imperative to protect the public health and safety with the need to ensure that municipal services and processes continue to the extent reasonably possible under the circumstances.
Local governments handle many critical permits and processes for residents’ daily lives: business permits and licenses, construction and renovation permits, animal licenses, and incident reports. Continuing to accept, process and issue locally-required permits is one aspect of teleworking that local governments have had to address. In some communities, this process was largely online prior to the COVID-19 pandemic and thus little, if any, change has been necessary. For others, limited access to buildings and staff requires at least temporary changes to the typical permitting process to enable permits to be issued where appropriate. Additionally, as the transition out of isolation is likely to be gradual and extended, local governments may need to adjust processes for these types of interactions for the foreseeable future to limit in-person interactions.
Below we have identified some processes local governments have successfully implemented to enable the continued acceptance and processing of permits, as well as considerations for implementing similar processes and additional information related to telecommunications permitting.
Electronic Filing
Electronic filing can be an effective means of accepting and processing permits where access to government buildings is limited. Tools include:
Portals: Create an open portal on the websites or leverage existing online permit application systems so applicants can submit all relevant documents related to their applications. For example, the City of Boulder, Colorado has created a customer self-service portal for permitting to replace in-person services.
Email: Establish a dedicated email address for permit applications or designate a staff member as the point of contact for all submittals. The City of San Antonio has set up temporary inboxes for different kinds of permitting activities, linked from its planning and development department page.
Notifying Applicants: Communities should update all relevant pages of local government websites with information on how to access new processes, portals, or contact emails for appropriate staff or inboxes.
Drop Boxes
Where electronic processes are not feasible, drop boxes may be a cost-effective alternative where the staff is available to routinely check the box. Posting the dates when the dropbox will be checked and providing information on the process for processing and approving permits will help applicants know when to drop their applications and what to expect as the application moves through the review and issuance process.
Considerations
Transitioning to a new or modified permitting process may have a number of implications that may need to be addressed:
Original Document Requirements: Online submittals may not be able to comply with existing ordinances, regulations, licenses, or agreements that require original documents, such as wet signatures or raised stamps or seals. Where appropriate, local governments may consider if and how to temporarily waive these requirements and/or establish a process for the submittal of original documents at a later date. Localities may also consider e-signature services for document execution, such as DocuSign or Adobe Sign. The City of Tacoma has an online permitting system that includes DocuSign and has issued guidance in response to the pandemic allowing original documents to be provided after online submittal.
Public Meeting Requirements: Many jurisdictions have established means of holding remote public meetings that comply with open meetings requirements and are able to conduct hearings on applications and/or receive any required approvals to temporarily waive certain permitting requirements. Visit this Cities Speak blog post for some examples of how cities are conducting public meetings and engaging residents virtually.
Fees: Consider options for online, wire, or check payment acceptance that do not require payments to be made in person.
Permit Issuance: Where an applicant must have the issued permit on-site while performing work, consider means by which permits may be transmitted electronically or otherwise made available to applicants.
Staff Limitation: Where critical staff are unavailable due to illness or have been reassigned to other urgent tasks, consider virtual inspections where feasible and/or temporary staff (with costs paid by applicants where appropriate). Cities may also be able to stagger inspections to occur when work crews are not at the site or otherwise work to maintain social distancing requirements for physical visits to locations.
Technical Limitations: Some local governments may not have the capacity to accept large files that may be required to submit some applications. Cloud storage solutions may provide the needed capacity. Companies offering cloud storage solutions include Dropbox, Microsoft (Azure), Google (Google Cloud), Amazon (AWS), and Facebook.
Access Letters: The U.S. Department of Homeland Security’s (DHS) Cybersecurity & Infrastructure Security Agency (CISA) released nonbinding Guidance defining essential critical infrastructure workers, which includes workers in the telecommunications industry. In addition to the nonbinding nature of the Guidance, please note that the Guidance does not address local permitting processes. The Guidance suggests essential workers should be permitted access to necessary communications sites despite quarantines, curfews, shelter-in-place orders, transportation restrictions and/or similar restrictions. The Guidance does not suggest pending or new planning, building, rights-of-way or other permits should (or should not) be issued. The Guidance also cautions that essential workers should follow guidance from the Centers for Disease Control and Prevention (CDC), as well as state and local government officials, regarding strategies to limit disease spread.
Wireless Permits: Shot Clocks and Moratoria. Applications for certain wireless deployments are subject to state and federal time limits for review and approval. In addition, in August 2018, the Federal Communications Commission issued a Declaratory Ruling finding that federal law preempts express and de facto state and local moratoria on acceptance, processing or approval of telecommunications permits. This includes circumstances in which a “delay continues for an unreasonably long or indefinite amount of time such that providers are discouraged from filing applications, or the action or inaction has the effect of preventing carriers from deploying certain types of facilities or technologies.”[1] To date, the Commission has not issued guidance on the application of the Declaratory Ruling in the COVID-19 pandemic, nor tolled or waived any Commission-imposed shot clocks for acting on certain wireless applications.
While we believe many communications providers understand that temporary stoppages or delays in the permitting process may be unavoidable during the pandemic and will not seek to enforce these rules, jurisdictions should be aware of these obligations and the potential legal implications. Where permit acceptance processing times may exceed applicable shot clocks due to the constraints of the pandemic, consider asking the applicant to agree to toll, or extend, the approval time period. The City of Portland and Contra Costa County both have tolling agreements available publicly as examples. Communities should communicate directly with telecommunications providers about the option of tolling. In addition, you can check for any available technical support from wireless companies or their professional associations, such as the Wireless Infrastructure Association, during the emergency.
For more examples of how local governments continue to adapt processes to the crisis, or to share your own, visit NLC’s Local Action Tracker at covid19.nlc.org.
[1] Declaratory Ruling at par. 150.
About the Authors:
Angelina Panettieri is the Legislative Manager for Information Technology and Communications at the National League of Cities. Follow her on twitter at @AngelinainDC.
Nancy Werner is General Counsel of the National Association of Telecommunications Officers and Advisors.