The COVID-19 pandemic and public safety measures either mandated or encouraged by the government has made it nearly impossible for local governments, especially planning and zoning boards, to hold public meetings in the traditional sense. Non-essential business activity has been halted, people cannot gather in groups, and evening travel has been restricted. Nevertheless, local governments have not been relieved of their legal obligation to hold public meetings.
On April 2, 2020, the Division of Local Government Services (“DLGS”) issued guidance to meet this challenge and ensure the continuity of land use applications and public participation during the current health crisis. The DLGS guidance makes clear that the Municipal Land Use Law’s (“MLUL”) notice provisions and time periods to hear and decide applications have not been relaxed. Therefore, municipalities are expected to begin holding meetings virtually by Zoom, Skype, Facebook, YouTube, or other means of videoconferencing, and allowing comment through the video conference platform or an open conference call line for those without internet access.
Considerations for Virtual Meetings
Attorneys and applicants must remain vigilant of all applicable deadlines and hearing requirements. With that in mind, below is a summary of the DLGS’s guidance and tips for attorneys and applicants for providing notice and presenting testimony at virtual hearings:
Public Notice: The DLGS recommends that the notice should be as thorough as possible and state the virtual meeting access information, such as URL or link, and a dial-in number for telephonic access. The notice should instruct participants that lack resources such as computers or internet access to contact the board secretary by phone for guidance. In addition, the notice must continue to specify where the public can view the plans, and applicants should be ready to submit electronic versions of the entire record for posting on the municipality’s website well in advance of the statutorily required ten days.
Applicants should begin coordinating with board attorneys or board secretaries well in advance of the hearing date regarding the virtual meeting’s web links, dial-in number, and the board’s chosen method for public inspection of the application so that these items may be timely incorporated into the notice. Close coordination with the board will avoid notice pitfalls and put applicants in a better position to be heard given that COVID19 issues are certain to shorten a board’s monthly agenda
Applicants also should anticipate supplying the board and its professionals with electronic copies of all application materials so the materials may be made available online in advance of the hearing.
Conducting the Hearing
Applicants and their professionals would be wise to conduct practice runs of presenting their applications using the same technology that will be used for the hearing to ensure the seamless presentation of testimony and exhibits.
In addition, the DLGS guidance permits public comment by phone or video and attorneys and professionals should be prepared for cross-examination from the public or even comments read aloud by the board secretary, as well as the typical questioning from board members. Developers may wish to consider whether a complex application is more likely to succeed at an in-person hearing conducted once COVID-19 restrictions have been relaxed.
Technological proficiency, coordination, and attention to detail will be paramount to success. While some challenges are to be expected, the ability of an applicant and its professionals to minimize these challenges while presenting a persuasive and well-prepared virtual presentation may be the difference between approval and denial.
Special Considerations for Bulk and Use Variances
Given the wide impact of COVID-19, it is unlikely that all board members will be able to attend the meetings. Nevertheless, the voting requirements of the MLUL remain in effect. Therefore, Applicants should consider the following:
Flexible “C” or Bulk Variances: Any “C” or bulk variances and appropriate waivers can still be approved by a majority of the quorum of the planning board. If only five members of the planning board are present, a “C” variance can be sustained by a simple 3-2 majority vote.
“D” Variances: “D” variances still require five affirmative votes. Therefore, if a zoning board is missing members and only has five members present, the applicant must still receive five affirmative votes for approval. If an applicant is concerned about obtaining five affirmative votes due to quorum issues, the applicant may want to consider carrying the application to the following meeting. While these aspects are always a concern, they may be amplified during the COVID-19 crisis.
Despite the COVID-19 pandemic, planning and zoning boards are required to continue to conduct public business. Boards must adapt to the current landscape and provide multiple options for streaming public meetings as well as providing an appropriate forum for public participation. For applicants, to date, no statute, Executive Order, or regulation has relaxed the MLUL’s deadlines or other requirements. Attorneys and applicants should remain mindful of their statutory obligations, including providing proper public notice and presenting the full record of an application for public participation, and cognizant that some applications may be better suited for traditional in-person hearings once COVID-19 restrictions lessen.
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