The COVID-19 crisis is forcing land use boards to grapple with the requirements of holding public meetings at which the public cannot be physically present. The administration of land use board meetings is governed by the Open Public Meetings Act (OPMA) and the Municipal Land Use Law (MLUL). Governor Murphy's Executive Order 107 and the reality of social distancing makes compliance with the MLUL challenging. The New Jersey Division of Local Government Services (DLGS) has issued two guidance documents that describe how towns can hold online or telephonic meetings that allow local government to continue operations. While some land use boards will proceed down this route, the myriad of legal issues involved with virtual hearings should give developers pause.

Open Public Meetings Act

As set forth in the DLGS memorandum, public bodies, including land use boards, can abide by the requirements of OPMA when holding telephonic or internet based meetings as long as they provide adequate public notice, the meetings are open to the public, and there is an opportunity for public comment. N.J.S.A. 10:4-6 et seq. While there will be difficulties in managing a meeting held via telephone or online, if done correctly, on the whole, these types of meetings should be able to comply with OPMA.

The legislature has clarified the situation by adopting P.L. 2020, c. 11 ("Chapter 11"). Chapter 11 provides that, in compliance with OPMA, a public body is permitted to conduct a meeting, cause a meeting to be opened to the public, vote, or receive public comment by means of communications or other electronic equipment during a "state of emergency, public health emergency, or state or local disaster emergency." In sum, OPMA shouldn't provide a barrier to virtual land use board hearings.

Municipal Land Use Law

The MLUL raises greater concerns regarding virtual land use board meetings. First, unlike local governing body meetings, a "hearing on an application for a land use approval is a quasi-judicial proceeding … and a land use board is required to decide … applications based on the evidence contained in an administrative record." Dolan v. DeCapua, 16 N.J. 599, 612 (1954); see also Kramer v. Board of Adjustment, Sea Girt, 45 N.J. 268, 284 (1965). Second, the MLUL sets forth a number of deadlines requiring board action, and the lack of board action will lead to an automatic approval. See N.J.S.A. 40:55D-10.4. Third, land use boards must allow the public to review the applicant's evidence, question witnesses, and present their own witnesses and evidence. Thus, boards are presented with a situation where they must swiftly process complex land use applications using untested technology, and also provide due process.

The DLGS guidance on virtual land use board hearings is helpful in sketching out the nuts and bolts of how to conduct such a meeting, but there are a number of serious legal issues which will likely cause litigation. We examine these issues in turn.

• Filing of Plans and Application Materials

The MLUL requires that "any maps and documents for which approval is sought at a hearing shall be on file for public inspection at least 10 days before the date of the hearing, during normal business hours in the office of the administrative officer." N.J.S.A. 40:55D-10(b). The plain language of this article has become difficult to comply with as most municipal offices are now closed to the public due to the COVID-19 crisis. While municipal employees are still working at most offices, these records are simply not available for "public inspection" as required by law.

The DLGS' solution is for towns to "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, [and] free of charge so that the ten-day public access period is maintained." The guidance also suggests that the land use board secretary should also provide paper copies of the documents via drop/pick-up box by appointment.

As a purely legal matter, these "work-arounds" don't comply with the letter of the law. Because of COVID-19 these documents are not "on file for public inspection … during normal business hours in the office of the administrative officer." Additionally, the DLGS is suggesting that towns can "require" that plans be provided electronically as a type of submission requirement. Pursuant to N.J.S.A. 40:55D-10.3, a municipality is only permitted to add submission requirements by ordinance. So, if an applicant does not provide electronic copies, and there is no local ordinance requiring same, the application cannot be deemed incomplete.

As a practical matter, these suggestions also raise issues. Some individuals do not have access to the internet and public internet facilities. Providing paper copies is also problematic for technology or manpower reasons. Any developer who must process an application, due to contractual deadlines or other reasons, is advised to take extra steps to make sure that all members of the public have access to the application material, including all plans and reports, even if this means sending hard copies directly to members of the public who request the same.

• Right to Cross Examine

The MLUL requires formal hearings with the right to cross examination. More specifically, the law requires that the applicable board "hold a hearing on each application for development." N.J.S.A. 40:55D-10(a). And when testimony is given during a hearing, it must be under oath, and "the right of cross examination shall be permitted to interested parties through their attorneys if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses." N.J.S.A. 40:55D-10(d).

The right to cross examine witnesses is subject to reasonable discretion. See Lincoln Heights v. Cranford Planning Board, 314 N.J. Super. 366 (Law Div. 1998), aff'd o.b. 321 N.J. Super. 355 (App. Div. 1998) (Holding that an applicant's expert being unavailable for a third day of cross-examination by the board and interested parties after being available for two days was not a deprivation of the interested parties' right to cross-examine). However, courts are generally concerned that all interested parties have the right to be heard and to cross examine witnesses. See Morris County Fair Housing v. Boonton Twp., 220 N.J. Super. 388 (Law Div. 1987), aff'd 230 N.J. Super. 345 (App. Div. 1989). (Where, in the context of a Mount Laurel case, the court refused to limit the public's right to cross examine witnesses and only permit an objector's direct testimony in writing). In order to ensure adequate due process, boards must give objectors the opportunity to address the full range of issues contained in application. Witt v. Borough of Maywood, 328 N.J. Super. 432, 453-454 (Law Div. 1998) aff'd o.b. 328 N.J. Super. 343 (App. Div. 2000). In Witt, the court held that a planning board did not give objectors a fair opportunity to address their concerns with a land use application, where the board heard the application at midnight and refused to continue the hearing to another date.

The DLGS memorandum advises that, given the "visual nature" of these types of meetings, a video conferencing online system would be needed instead of purely telephonic means. When it comes to cross-examination, the DLGS recommends that the board chair practice good meeting management skills by "limiting redundant comments and questions to ensure orderly remote public participation." Interestingly, the memorandum also states that "[m]embers of the public should be encouraged to advise the Chair in advance, if possible, via email or phone call to the [b]oard 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." As the guidance document acknowledges, this type of pre-screening of cross-examination questions can be "encouraged" but nor required.

The DLGS advice is helpful but, again, it doesn't change the law. The law gives individuals the right to cross-examine witnesses during a land use board hearing. At bottom, the issue here is a practical one with legal implications. It will be difficult to ensure due process for controversial applications that are heard virtually. Below are a few likely problem scenarios:

1. "Zoom bombing" should be an area of concern for boards and applicants. Over the last few weeks hackers have been using software to disrupt online meetings taking place over Zoom, an online meeting platform. This disruption effectively prevents the meeting from taking place and would require that a board reschedule the matter.
2. An interested party who is unable to access the online or telephonic meeting because they lack home internet may argue that their "right" to cross examine has been denied. Per Lincoln Heights, this argument would seem to be unsuccessful as long as, generally speaking, most other objectors were able to access the virtual forum and participate. But a court could conceivably rule differently, particularly for someone who would otherwise be able to attend the meeting in person, but who lacks the broadband connection necessary to do so virtually.
3. A large group of interested parties not being able to participate in a hearing due to software glitches may require a re-hearing because, under Witt, a court may question whether a "fair opportunity" to cross examine has been provided.

Given the possible length of the crisis, these aforementioned issues related to virtual hearings will likely be litigated.

• Other Ways to Proceed

These circumstances should give private developers pause. When it comes to controversial development projects, many applicants would be well advised to consider simply tolling the various deadlines required by the MLUL until an in-person land use board hearing can be held. An applicant may also wish to consider having their application "dismissed without prejudice" via board resolution.

In response to the crisis, the Legislature is considering bill A-3902. This bill authorizes the DLGS director to unilaterally extend MLUL deadlines during a state declared public health emergency or public emergency. The bill has been passed by the assembly but still needs senate approval before being sent to the governor. From a purely legal perspective, having the state simply extend the MLUL's deadlines would be the cleanest approach to preventing automatic approvals and unnecessary litigation regarding virtual hearings.

Conclusion

The COVID-19 crisis is forcing New Jersey's public bodies to pioneer new means and methods of doing public business. The MLUL, unlike OPMA, presents a number of problems for land use boards. Consequently, there will likely be challenges to land use board decisions made in virtual meetings during the current crisis. Therefore, it is worthwhile for land use boards and applicants to seriously consider tolling the various deadlines in the MLUL until after this crisis has ended.

Edward W. Purcell is an associate with Price, Meese, Shulman & D'Arminio in Morristown. He concentrates his practice in the areas of land use, planning and telecommunications law.