Mr. Purcell recently co-authored a point/counter-point piece in the New Jersey Law Journal debating the merits of returning to in person land use board hearings or continuing to hold virtual hearings after the Covid-19 emergency ends. Below is a copy of the article.
Additionally, Mr. Purcell will be participating in a seminar on this topic hosted by the New Jersey Institute of Continuing Legal Education (“NJICLE”) on August 24, 2021. A link to sign up for this webinar is here (https://tcms.njsba.com/personifyebusiness/njicle/CLEPrograms/NJICLEEventsCalendar/MeetingDetails.aspx?productId=67339450)
Should Land Use Boards Meet in Person, or Continue to Hold Virtual Hearings?
Two attorneys offer arguments for and against returning to in-person hearings once the COVID-19 emergency is over.
June 23, 2021
By Edward W. Purcell and Dennis M. Galvin
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In this point-counterpoint article, the first author argues in favor of continuing to function remotely even when the COVID-19 emergency is over, and the second explains why he believes Land Use Boards should go back to conducting hearings in-person.
Edward W. Purcell: Land Use Boards Should Continue Holding Virtual Hearings
Land Use Boards should continue holding virtual hearings after the COVID-19 emergency ends because virtual hearings comply with the New Jersey Open Public Meetings Act (OPMA), the Municipal Land Use Law’s (MLUL) hearing requirements, the due process requirements of quasi-judicial hearings, and allow for greater public access to such hearings.
OPMA, by its very terms, envisions virtual hearings. The law defines a “meeting” as “any gathering whether corporeal or by means of communication equipment, which is attended by, or open to, all members of the public body ….” N.J.S.A. 10:4-8. Furthermore, while the legislature provided additional authorizations for virtual hearings during the COVID-19 emergency, that legislation went out of its way to preserve that organic authority by providing that “this section shall not be construed to limit any authorization under law to perform the functions as specified herein irrespective of any emergency.” N.J.S.A. 10:4-9.3(c). Finally, this independent authorization is acknowledged by the emergency meeting rules adopted by the Department of Community Affairs (DCA) which states that “nothing in these regulations prevents a local public body from holding a remote public meeting under such other circumstances as may be permitted by the [OPMA].” N.J.A.C. 5:39-1.1.
Turning to the MLUL, the law simply requires that the appropriate land use board hold a hearing on “each application for development.” N.J.S.A. 40:55d-10(a). There is no requirement that a hearing be in person. In response to arguments that “virtual” hearings are not authorized by the MLUL, it must be emphasized that the New Jersey Constitution requires that the MLUL be “liberally construed” in municipalities’ favor. N.J. Const., Art. IV, §7, ¶ 11. Admittedly, there are due process issues that must be considered because, unlike a meeting of a local governing body, 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). The MLUL also requires formal hearings with the right to cross examination. N.J.S.A. 40:55D-10(d). However, as the last 15 months have shown, virtual hearings, despite the occasion glitch, allow full and effective public participation.
At bottom, most virtual land use board hearings have operated well enough that the board, the applicant and the public can hear and see testimony, and question and cross examine witnesses, such that no one’s due process rights are abridged. This has been a steep learning curve but, after more than a year, boards, applicants and the public have become familiar and comfortable with using virtual meeting platforms such as Zoom. Virtual hearing hiccups are normal. But they are, in a practical sense, no different than when, during an in-person hearing, a member of the public complains that they cannot hear a witness or adequately see an exhibit in a physical room.
The DCA’s emergency meeting rules have provided basic guidelines for how to run a due process-compliant virtual meeting. While these regulations would no longer be effective after the governor ends the current state of emergency, land use boards could use them as a guideline to ensure that their meetings comply with the due process requirements.
Lastly, land use boards should continue holding virtual hearings because they provide better public participation and also reduce costs. When boards transitioned to virtual hearings, there was some surprise at the increased public attendance. However, the reality is that virtual hearings provide an opportunity for people with young children, the old or disabled, or people who lack reliable transportation, a way to participate in the public’s business. If we don’t continue to use the skills we’ve learned running virtual hearings during the COVID-19 emergency, that will be a loss not only for land use boards, attorneys and professionals, but also for the public that have benefited from such open government. Indeed, virtual hearings have lowered developer and municipal costs when it comes to covering professional travel expenses.
Technology continues to improve. Our public discourse should advance to take advantage of these benefits. Isn’t it also time to allow email notice, rather than certified mail notice? But that is a thought for another day. For now, virtual hearings should continue.
Dennis M. Galvin: Land Use Boards Should Revert Back to In-Person Hearings
Prior to the issuance of the first Executive Order in response to COVID-19, it was understood that all land use matters had to be conducted in person. The rationale was based on the fact that land use boards act in a quasi-judicial capacity when granting variance relief. While the rules of evidence are not strictly followed, our zoning and planning tribunals follow most judicial protocols.
All witnesses are placed under oath and are subject to cross-examination.
The Municipal Land Use Law, N.J.S.A. 40:55D-10 outlines hearing requirements but provides no means to electronically stream hearings. The Department of Community Affairs provided guidance for remote meetings issued at the direction of our Chief Executive. While nice, this was an ultra vires act. N.J. Const. art. IV, §6, ¶ 2. As the emergency sunsets, any vestige of that regulation must also sunset. Moreover, inviting the Department of Community Affairs into the bastion of local zoning compromises our cherished notions of home rule.
• Quasi-Judicial Tribunals
Zoning impacts constitutionally protected property rights. The determination on whether to grant a variance is a quasi-judicial determination, not simply a ministerial act. This determination requires an agency who is empowered to grant such relief to evaluate the factual materials presented in support of the application in light of controlling legal standards. The Appellate Division in In re Amico/Tunnel Carwash explained, “a variance application “arise[s] in a highly elaborate, quasi-judicial procedural framework that is not typical of ordinary administrative licensure,” and “the decision-making process must be sensitive and informed.”
The concern in the zoning arena will be the violation of someone’s substantive due process rights. In Harz v. Borough of Spring Lake, the New Jersey Supreme Court noted that a substantive right is “[a] right that can be protected or enforced by law; a right of substance rather than form.” Justice Albin went on to suggest “unalienable rights” of “enjoying and defending life and liberty, [and] acquiring, possessing, and protecting property,” N.J. Const. art. I, ¶ 1; see also; U.S. Const. amend. XIV; Land development involves valuable property rights and may trigger a civil rights case in the appropriate fact pattern. The argument will be made in some crazy case that the failure to hold an in-person hearing deprived the applicant or objector of its right to confront witnesses.
• Difficult Hearings and Meeting Management
Land Use Boards face cases of great public concern where sometimes hundreds of citizens want to appear and comment. Sometimes they want to shout out. It can be challenging to maintain the proper judicial environment in any such matter. Some Boards have had to reschedule hearings to another night to engage a larger venue.
Conducting large meetings on Zoom is a management nightmare requiring the Board Attorney, court reporter, and chairman to scan through page after page of Zoom boxes seeking the next witness or Board member who wishes to comment. It is impossible to keep the board, the attorneys, and the witnesses all on the same page—literally.
There are other benefits to in-person meetings. In-person meetings provide the Board attorney an opportunity to provide quiet guidance to the chairperson or rectify a conflict of interest without creating an international incident. On many nights, it can be useful to the outcome for the Board attorney to have a chat in the hallway with the applicant or the objector’s attorney. The Board Attorney has the ability to offer the applicant or the objector’s attorney quiet insight or suggestion to resolve the issues before the Board. Unquestionably, such opportunities reduce conflict and advance the goal of judicial economy.
Then there is the problem of glitches. “Bob … you there, Bob? … Can you gives us a sign?” Feels, at times, like a séance. Don’t get me started on the mute button. We have all learned and continue to learn but in complicated matters, it is a strain to keep up with all the faces, the direction, and cadence of a remote meeting.
• Authority
My beef from the start of the pandemic is authority. A land use board unlike a governing body is a quasi-judicial entity. The land use law has never provided authority for call-in board meetings. We always wanted everyone participating in the hearing to physically be present at the hearing—to weigh the evidence, to watch everyone’s reactions, to see shifts in the facts, and to understand the law. Pathri v. Kakarlamath, recognizes that video transmission should be allowed only in compelling circumstances. Judge Fisher citing to the Federal Rules explained the “very ceremony of trial and the presence of the factfinder may exert a powerful force for truth telling.” This holds true for all tribunals, including land use boards.
I readily concede that Zoom technology is very beneficial for smaller hearings and, perhaps, the land use law should be amended to allow remote appearances during snow emergencies. But until the legislature acts, the use of remote hearings is prohibited.
Edward W. Purcell is an associate with Price, Meese, Shulman & D’Arminio, PC, in Morristown.
Dennis M. Galvin is a partner with Davison Eastman Muñoz Paone, PA, in Freehold.
Reprinted with permission from the June 23, 2021 issue of the New Jersey Law Journal. Further duplication without permission is prohibited. All rights reserved. © 2021 ALM Media Properties, LLC
