In the wake of Executive Order 103 declaring the COVID-19 public health emergency and Executive Order 107 concerning restrictions on public gatherings, most planning boards and zoning boards of adjustment in New Jersey cancelled their scheduled meetings and have since been evaluating how to resume meeting in a manner that complies with social distancing requirements and Executive Order 107. This has left applicants uncertain when and in what manner their applications for development will be considered and decided. Following enactment of emergency legislation to facilitate the conduct of electronic meetings, the New Jersey Department of Community Affairs, Division of Local Government Services, has issued guidance to specifically assist planning boards and zoning boards of adjustment with conducting public hearings electronically on applications for development.
The guidance, titled “Planning Board and Zoning Board of Adjustments Operational Guidance – COVID-19: N.J.S.A. 40:55D-1, Recommendations for Land Use Public Meetings in New Jersey,” is a first step in assisting land use boards – some of which have been hesitant to begin holding “virtual” meetings – with the mechanics of arranging for and conducting electronic meetings and public hearings.
The Municipal Land Use Law (MLUL) requires land use boards to hold meetings at least monthly. Such boards must meet as scheduled unless there is a lack of applications for development to be decided. Thus, to comply with statutory requirements, any land use board that has applications pending before it must quickly resume holding meetings. Additionally, land use boards are subject to statutory time frames within which they must decide applications for development or risk the award of default approvals, although pending legislation that would allow these deadlines to be extended by the Director of the Division of Local Government Services passed the Assembly on March 25, 2020. At the moment, however, all existing statutory deadlines remain in effect.
The emergency legislation to facilitate the conduct of electronic meetings, enacted as P.L. 2020, ch. 11, provides that during a declared emergency, a land use board may, using communication or other electronic equipment, conduct a meeting and any public business to be conducted thereat; cause a meeting to be open to the public; vote; and receive public comment. In consideration of present circumstances, the Operational Guidance recommends the following adjustments to usual procedures in order to conduct electronic meetings that comply with existing statutory requirements:
- Plans and application materials must be on file for review by the public at least ten days prior to the hearing. The Operational Guidance recommends that in the present circumstances, the board should consider receiving plans electronically and posting them for public review on and through the municipal website, drop-box, or some other online service that is accessible to the public, free of charge, so that the ten-day public access period is maintained. The board should also publicly post, and post online, a phone number and email for the board secretary. Members of the public should be advised that they may contact the board secretary to receive a hard copy of the plans and application materials by mail or via an exchange site such as a drop/pick-up box by appointment at a secure, public location such as the police station or at the municipal building, subject to any standard fees or charges.
- Public notices, which must state the date, time, and place of a public hearing and where the plans are available for public inspection, must now also provide conference call access or web-meeting access information. Dial-in information should be provided to individuals without computer access or mobile devices. The notice should also identify the websites on which plans are posted, contact information for the board secretary, and all available means of achieving public access to all documents and to the meeting itself. The notice should state that individuals lacking the resources or know-how for technological access should contact the board secretary for assistance in accessing the plans and the meeting.
- Given the restrictions currently limiting in-person public meetings, hearings will likely need to be conducted by alternative electronic means. Given the visual nature of the materials used in planning and zoning meetings, Zoom, Facebook, YouTube, or some other video-conferencing technology will provide the most appropriate forum for hearings. The Operational Guidance suggests that all parties should consider coordinating in advance to assure applicants’ exhibits can be provided no less than two days in advance of the meeting and posted for board and public access prior to and during the video meeting; however, note that advance filing of exhibits is not required by the MLUL. The board and its professionals and secretary will need to coordinate with the applicant and their professionals, as it is likely that the applicant’s attorney, engineer, planner, etc. may not all be presenting from the same location. This deviation from the standard practice of concurrent introduction and discussion is recommended to ensure adequate information sharing and clear labeling for board and public participation in the session.
- Planning boards and zoning boards of adjustment conducting electronic meetings must facilitate public comment on applications, as well as the public’s ability to cross-examine witnesses. At the beginning of an electronic meeting, the board chair should announce a standard limit on public comment (e.g., time limit, length or number of text comments) for each individual. Cross-examination of witnesses by the public may require relaxing the standard limit, but in all cases, the chair should limit redundant comments and questions to ensure orderly remote public participation. Members of the public should be encouraged to advise the chair in advance, if possible, via email or phone call to the board secretary, of their intentions to undertake cross-examination, to ensure technological needs are accommodated and documents that will be referenced are available for review by all participants.
- The Operational Guidance states that boards have a continuing obligation to record and make public the minutes of public meetings. They also specify that boards must continue to transcribe quasi-judicial proceedings, and that a court reporter should participate in any virtual hearing, transcribing the video session. However, this exceeds what the MLUL requires, which specifies that a hearing (as opposed to meeting) must be recorded verbatim using a stenographer or by mechanical or electronic means, and that either a transcript or a recording must be made available to members of the public upon request and at their own expense. Thus, based on this guidance, it is questionable whether a stenographer must “attend” every hearing, and whether a transcript must be prepared in every instance. A record of the entire proceeding can be retained using the adopted virtual meeting technology. Boards are further encouraged to consult the protocols employed by New Jersey’s courts for conducting remote hearings for essential functions.
The Operational Guidance is a welcome step toward assisting boards in establishing the procedures for conducting electronic meetings so that they can satisfy their statutory obligation to hold monthly meetings so long as there are pending applications for development before them. To be sure, electronic meetings will present challenges that will require cooperation of all participants in the proceedings. Therefore, applicants should work with boards and their staff in an effort to agree on procedures to be followed that satisfy, to the greatest extent possible, the rights and obligations set forth in the MLUL as well as in the board’s rules and regulations. Ultimately, it will be necessary for the applicant and board to balance the desire to proceed with an application for development against the extent to which procedural requirements and due process rights can be satisfied through public hearings conducted electronically, and to determine whether to the application should proceed or be continued until in-person meetings can resume.