Bulletin Board Magazine 2020 Volume 1

Legal/Legislative Continued

Applicants are directed to update any notices of public hearing to reflect whatever location the application materials are available for inspection, including digital options such as a file sharing website or the municipal website. Boards are encouraged to conduct hearings via Zoom, Facebook, YouTube, or similar visual online platforms, with proceedings recorded as in the ordinary course. The DLGS memorandum sets forth specific prospective procedures for conducting meetings with such technology, including provisions for allowing public comment. Given the state of emergency declaration, boards are also permitted to file notices of public hearing electronically in full compliance with the OPMA. As a practical matter, boards are encouraged to limit agendas to administrative-type and other relatively uncontroversial matters, such as conforming minor site plan and subdivision applications. The Operational Guidance is commendable and certainly appreciated by land use applicants desiring to press forward with development applications in the face of unprecedented challenges. Still, all applicants are urged to proceed with extreme caution. Public participation is a cornerstone of the New Jersey land use process. All parties involved are now attempting to integrate new (and, in some cases brand-new) technology into a land use process whose “old-fashioned” methods of ensuring robust public participation are, quite literally, tried- and-true. There are bound to be consequential

stumbles as both applicants and boards look to technology as a means to clear the hurdles created by the COVID-19 pandemic. Applicants proceeding with non-controversial applications (minor subdivisions, minor site plans, or “fully-conforming” applications) should feel confident that any board action taken after proper notice and in strict adherence with the Operational Guidance should not be at any significant additional risk of appeal as a result of the “virtual” hearing procedures. However, it is uncertain if complicated or controversial applications requiring variance or other more significant relief will be treated with the same deference by New Jersey’s courts should an appeal be filed, even where the Operational Guidance is followed. Being that this is an unprecedented situation, there will undoubtedly be factual scenarios for which no on-point legal precedent presently exists. Applicants that are concerned with the prospect of a potential appeal should consider carrying applications until such time as boards are able to reconvene in the traditional “live” setting (whenever that might be). In all events, applicants must proceed cautiously; including doing everything possible to provide adequate public notice with detailed instructions on how the interested public may participate in application proceedings and addressing any and all questions posed by the reviewing board and participating public.

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Bulletin Board | 49 | www.shorebuilders.org

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