The continued state of emergency associated to the COVID-19 pandemic has severely impacted the flexibility of municipal governing our bodies, planning boards, and zoning boards of adjustment to carry public hearings. Particularly, EO-103 (declaring a state of emergency) and EO-107 (closely limiting public gatherings) have disrupted the traditional course of for land use hearings contemplated by the Municipal Land Use Legislation, N.J.S.A. 40:55D-1, et seq. (“MLUL”) and the Open Public Conferences Act, N.J.S.A. 10:Four-6, et seq. (“OPMA”). Whereas the MLUL and OPMA stay controlling, it’s each impractical and unimaginable for boards to carry in-person public conferences as they’re accustomed to doing. To handle this, the New Jersey Division of Group Affairs (“DCA”), Division of Native Authorities Companies (“DLGS”) just lately issued COVID-19-related Operational Steering for municipal planning boards and zoning boards of adjustment for holding public conferences throughout the state of emergency. By complying with the recently-issued DLGS steerage, boards could maintain “digital” public conferences in lieu of “reside” public conferences to make sure that important enterprise can nonetheless be carried out throughout the state of emergency.
DLGS’s Operational Steering emphasizes the potential to make use of know-how, the place attainable, to mitigate the impacts of COVID-19 and associated governmental restrictions on the general public listening to course of. For instance, whereas an member of the general public looking for to evaluation a land use utility would possibly ordinarily examine it on the planning board secretary’s workplace, DLGS notes the potential to e-mail utility supplies (or for the applicant to mail the supplies individually) to any events. Candidates are directed to replace any notices of public listening to to mirror no matter location the appliance supplies can be found for inspection, together with digital choices corresponding to a file sharing web site or the municipal web site. Boards are inspired to conduct hearings by way of Zoom, Fb, Youtube, or comparable visible on-line platforms, with proceedings recorded as within the atypical course. The DLGS memorandum units forth particular potential procedures for conducting conferences with such know-how, together with provisions for permitting public remark. Given the state of emergency declaration, boards are additionally permitted to file notices of public listening to electronically in full compliance with the OPMA. As a sensible matter, boards are inspired to restrict agendas to administrative-type and different comparatively uncontroversial issues, corresponding to conforming minor web site plan and subdivision functions.
The Operational Steering is commendable and definitely appreciated by land use candidates wanting to press ahead with improvement functions within the face of unprecedented challenges. Nonetheless, all candidates are urged to proceed with excessive warning. Public participation is a cornerstone of the New Jersey land use course of. All events concerned are actually making an attempt to combine new (and, in some instances brand-new) know-how right into a land use course of whose “old school” strategies of guaranteeing sturdy public participation are, fairly actually, tried-and-true. There are sure to be consequential stumbles as each candidates and boards look to know-how as a way to clear the hurdles created by the COVID-19 pandemic.
Candidates continuing with non-controversial functions (minor subdivisions, minor web site plans, or “fully-conforming” functions) ought to really feel assured that any board motion taken after correct discover and in strict adherence with the Operational Steering shouldn’t be at any important extra danger of enchantment on account of the “digital” listening to procedures. Nevertheless, it’s unsure if difficult or controversial functions requiring variance or different extra important reduction will probably be handled with the identical deference by New Jersey’s courts ought to an enchantment be filed, even the place the Operational Steering is adopted. Being that that is an unprecedented state of affairs, there’ll undoubtedly be factual situations for which no on-point authorized precedent presently exists. Candidates which are involved with the prospect of a possible enchantment ought to take into account carrying functions till such time as boards are in a position to reconvene within the conventional “reside” setting (at any time when that could be). In all occasions, candidates should proceed cautiously; together with doing every little thing attainable to offer sufficient public discover with detailed directions on how the public could take part in utility proceedings and addressing any and all questions posed by the reviewing board and collaborating public.
Co-Authored by: Steven P. Gouin & Adam Garcia
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