On April 2, the Division of Local Government Affairs in the New Jersey Department of Community Affairs (DCA) issued an operational guidance document to ensure the continuity of land use application procedures and to ensure that due process is maintained during planning board and zoning board of adjustment hearings while Gov. Phil Murphy’s Executive Orders 103 and 107 are in effect to address the COVID-19 outbreak. Further, municipalities are reminded to adhere to social distancing and health measures in implementing these procedures by conducting electronic meetings in compliance with the Open Public Meetings Act.
The guidance confirms that the procedural and timeline requirements embodied in the Municipal Land Use Law (MLUL) remain in effect. For example, N.J.S.A. 40:55D-9 requires that every planning board and zoning board have regular public meetings conducted with a quorum at least monthly (unless cancelled for lack of applications), take action in accordance with a majority vote (except as otherwise specified in the governing statute), and provide minutes for public view. Further, a board is required to grant or deny approval of an application pending before it within the prescribed deadlines of the MLUL, and failure to do so is deemed to be an approval of the application. Given these statutory mandates, DCA is advising municipalities that it is imperative they continue to ensure public hearings on land use applications are conducted in a timely manner and without procedural defect.
To achieve this objective, DCA offers the following recommendations.
Filing of Application Materials
The MLUL requires that all plans and application materials be on file with the board secretary for review by the public at least 10 days before the hearing. Under the present circumstances, a municipality 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 that the 10-day public access period is maintained. The municipality should also publically 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 by appointment at a secure, public location, such as the police station or the municipal building, subject to standard fees.
Providing Public Notice
Under the MLUL, a public notice must state the time, place and location of a public hearing and where submitted application materials can be found for public inspection. DCA recommends that, during the emergency, the notice must 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 website on which the plans are posted, contact information for the board secretary, and all available means of achieving public access to all documents and the meeting itself. In addition, the notice should state that individuals lacking the resources or knowledge for technological access should contact the board secretary for assistance in accessing the documents and the meeting. The notice is to be published and mailed at least 10 days before the hearing, as required by the MLUL.
Conducting Public Hearings and Allowing Public Participation
Due to the restrictions on in-person meetings, board hearings will likely need to be conducted by alternative electronic means. Because of the visual nature of the materials used in land use hearings, Zoom, Facebook, YouTube or some other video-conferencing technology offers the most appropriate forum for this purpose. All parties should consider coordinating in advance to ensure applicants’ exhibits can be provided no less than two days before the hearing and posted for board and public access prior to and during the video hearing. DCA also recommends that the board, its professionals and secretary coordinate with the applicants and their professionals to ensure adequate information sharing and clear labeling of exhibits for board and public participation during the session. All boards conducting electronic hearings must facilitate public comment on applications, as well as the public’s ability to cross-examine witnesses.
Record of Proceedings
Municipal agencies have a continuing obligation to keep minutes of every regular and special meeting and make them available to the public. The DCA guidance document also indicates a local unit must continue to “transcribe” quasi-judicial proceedings. However, this is likely a scribner’s error because the MLUL requires a planning board or a zoning board to provide for a “verbatim recording” of the hearing by either stenographer, mechanical or electronic means. N.J.S.A. 40:55D-10.f. Thus, retention of a recording of the entire virtual proceeding using the adopted video-conferencing technology should be sufficient to satisfy this statutory mandate.
The DCA guidance is welcome news to applicants concerned that their applications were at a standstill given the pandemic emergency orders from Gov. Murphy. It is now clear that municipal land use boards must ensure that hearings on pending land use applications continue in a timely fashion by using the electronic methods outlined by DCA. The holding of virtual proceedings on land use applications, however, is not without legal peril, particularly for matters of a controversial nature involving objectors represented by counsel. It is therefore recommended that applicants closely consult their legal advisers in order to make a sound decision on whether to have their application proceed via the virtual route.
