In the wake of all the recent changes thrust upon us by the COVID-19 Pandemic, Land Use Boards and Practitioners across the State are considering whether and how to conduct public hearings in full compliance with the relevant laws while staying healthy. In the short term, most boards are postponing the foreseeable upcoming hearing dates. As a general rule, Boards are required to hold Public meetings on a monthly basis and must rule within a stated period of time. The meetings must be in public and include sworn testimony from expert and lay witnesses; presentation of plans; reports and exhibits; dialogue (sometimes robust) with board members and the public; and board action. A hearing is essentially a mini trial in front of a “quasi-judicial body.” Due process concerns of the applicant developer, the general public and other interested parties are paramount. Failure to maintain due process could be a fatal flaw to any such proceeding.
In an effort to help set a process and provide guidance for future meetings, the New Jersey Division of Consumer Affairs (Division of Local Government Services), recently published “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” (“DCA Guidance”). Its stated purpose is to help “ensure continuity of Land Use application procedures while New Jersey’s Executive Order 103 and Executive Order 107 are in full effect.” The DCA Guidance also provides: “There are many options available…to facilitate virtual and telephonic public meetings.” The Executive Orders, as we should all be well aware, implement “stay at home” procedures for many. They also prohibit large gatherings, which would include Public Planning Board, Board of Adjustment and Mayor and Council meetings.
DCA Guidance recommends that boards make all applications, plans, and reports available online. Additionally, it promotes the usage of “virtual” meetings so long as they are in compliance with the Municipal Land Use Law (N.J.S.A. 40:55D-1 et. seq. “MLUL”) and the Open Public Meetings Act (N.J.S.A. 10:4-6 “OPMA”). The MLUL has strict requirements for the timing and content of public notices, time for an administrator to deem an application complete, time frames for Board’s to act and for the duration of approvals. (As an example, if a board does not act within a certain stated period of time, a developer could declare a “Default Approval.” However, this remedy is not favored by courts and is not an automatic right.) In addition to the MLUL, OPMA must be complied with. OPMA sets the rules of conduct for all public meetings in New Jersey. Failure to abide by the strict requirements of the MLUL or OPMA will render a public hearing null and void, in most instances.
At odds are the: 1) statutory time frames set forth in the MLUL and a Board’s duty to comply; 2) compliance with OPMA; 3) protection of the due process rights of the developer, interested parties and members of the Public, and 4) most importantly, maintaining the rigors of the current social distancing policy.
The DCA Guidance provides quite a bit of suggestion and information on using web-based and phone based platforms for “virtual” meetings, all of which must include public participation. It is noted that OPMA does define a “meeting” as “…any gathering whether by corporeal means or by means of communication equipment, which is attended by, or open to, all of the members of a public body.” However, OPMA gives no guidance on whether or how members of the general public would participate “by means of communication equipment.” OPMA, at N.J.S.A. 10:4-12, requires, with few exceptions, that “…all meetings of public bodies shall be open to the public at all times” (emphasis supplied).
Noticeably absent from either the MLUL or the OPMA is any mandate, requirement or criteria for the conduct of “virtual meetings.” This is all a brand new concept for interactive public meetings and no formal rules for the conduct of virtual public meetings in New Jersey exist.
The DCA Guidance acknowledges that public participation in virtual meetings is a basic legal requirement. However, it provides little instruction on how to correct or contend with either human or mechanical error resulting in the failure of a participant to be fully informed or given a fair opportunity to state their positions on record. Furthermore, contentious or challenged applications will be under heightened scrutiny. With only a DCA recommendation and no underlying base authority or established guidelines, one can expect flaws and inconsistencies which could be challenged.
While the DCA Guidance encourages Land Use Boards to continue to hold public meetings in the midst of this pandemic (which has yet to meet its worst day), it would seem the most prudent course is for Board’s to seek postponement of any scheduled or continued matters, at least for the months of April and perhaps May. During this time, each municipality, in consult with the DCA could formulate and implement standard procedures and protocols for virtual meetings. Among other things, Boards will need to strive for uniformity, make sure the public is fully informed and offered user friendly methods to access the meeting and participate. At this juncture, it is not clear whether all members of the public would have the ability to participate in a live, remote hearing and whether their inability would render the entire proceeding a nullity. Failure to properly permit public participation would be proper grounds for any appeal or Board action. Ultimately, more formal laws or regulations will need to be adopted to address virtual hearings. Until such time, they could be subject to criticism and appeal.