While New Jersey zoning and planning boards are currently unable to meet in person, land use applications should proceed during the coronavirus (COVID-19) pandemic. Thanks to technology, Planning Boards and Zoning Boards of Adjustment have a range of options to facilitate virtual and telephonic public meetings. The challenge is to ensure that public meetings still comply with all applicable statutory and procedural requirements.

The New Jersey Department of Community Affairs, Division of Local Government Services (DLGS) recently issued an operational guidance addressing the impact of COVID-19 on land use public meetings. According to DLGS, the guidance is intended to “ensure continuity of Land Use application procedures while New Jersey’s Executive Order 103 and Executive Order 107 are in effect, to ensure due process is afforded during Planning Board and Zoning Board of Adjustment hearings and to remind local units to adhere to appropriate social distancing and health measures as they implement this process.”

Land Use Timelines Remain in Effect

The DLGS guidance reminds local authorities that procedural requirements and deadlines for acting on land use applications remain in effect. Accordingly, if a Planning Board or Zoning Board of Adjustment fails to approve or deny an application within the prescribed or agreed upon time, it will be deemed to have granted approval to the application. For reference, the DLGS guidance includes the timeframes for “Applications Submissions,” “Time for Board to act once the application is deemed complete,” and “Approvals.”

Requirements for Public Meetings

Under New Jersey’s Municipal Land Use Law, N.J.S.A. 40:55D-9, every municipal agency must have regular, at least monthly, public meetings. All business must be conducted with a quorum; action must be taken in accordance with a majority vote, except as otherwise specified within the governing statutes; and minutes must be prepared and made available to the public. To help zoning and planning boards ensure public hearings are conducted timely and without procedural defect, DLGS offers the following recommendations:

• Filings plans/applications: All plans and application materials must be on file with the Board Secretary for review by the public at least ten days prior to the hearing.  In the present circumstances, the local unit 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 local unit 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 notice: Under the MLUL, a public notice must state the time, place and location of a public hearing, and where submitted plans can be found for public inspection. At this time, 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 device. 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 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.
• Conducting hearings: 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. 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. The Board, 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.  
• Facilitating public participation: 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 intention to undertake cross-examination, to ensure technological needs are accommodated and documents that will be referenced are available for review by all participants. 
• Recording of proceedings: Local units have a continuing obligation to record and make public the minutes of public meetings. They must also continue to transcribe quasi-judicial proceedings. To maintain compliance with these obligations, a court reporter should participate in any virtual hearing, transcribing the video session. Additionally, a record of the entire proceeding can be retained using the adopted virtual meeting technology. New Jersey’s Courts have employed remote hearings for essential functions, which may be of interest to local units seeking to conduct statutorily compliant hearings under the present constraints(please see https://www.njcourts.gov/notices/2020/n200315a.pdf). 

Moving Forward With Land Use Applications

Scarinci Hollenbeck’s Land Use Practice stands ready to help local governments and land use applicants successfully navigate the new procedures that will be required in these challenging times. We will also continue to provide updates should the New Jersey Legislature extend certain land use timeframes and/or DLGS provide additional guidance.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, John M. Scagnelli, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.