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Land Use Considerations During COVID-19

The ongoing state of emergency related to the COVID-19 pandemic has severely impacted the ability of municipal governing bodies, planning boards, and zoning boards of adjustment to hold public hearings. Specifically, EO-103 (declaring a state of emergency) and EO-107 (heavily restricting public gatherings) have disrupted the conventional process for land use hearings contemplated by the Municipal Land Use Law, N.J.S.A. 40:55D-1, et seq. (“MLUL”) and the Open Public Meetings Act, N.J.S.A. 10:4-6, et seq. (“OPMA”). While the MLUL and OPMA remain controlling, it is both impractical and impossible for boards to hold in-person public meetings as they are accustomed to doing. To address this, the New Jersey Department of Community Affairs (“DCA”), Division of Local Government Services (“DLGS”) recently issued COVID-19-related Operational Guidance for municipal planning boards and zoning boards of adjustment for holding public meetings during the state of emergency. By complying with the recently-issued DLGS guidance, boards may hold “virtual” public meetings in lieu of “live” public meetings to ensure that critical business can still be conducted during the state of emergency.

DLGS’s Operational Guidance emphasizes the potential to use technology, where possible, to mitigate the impacts of COVID-19 and related governmental restrictions on the public hearing process. For example, whereas an interested member of the public seeking to review a land use application might ordinarily inspect it at the planning board secretary’s office, DLGS notes the potential to email application materials (or for the applicant to mail the materials individually) to any interested parties. 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.

Co-Authored by: Steven P. Gouin & Adam Garcia

© 2021 Giordano, Halleran & Ciesla, P.C. All Rights Reserved National Law Review, Volume X, Number 105
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About this Author

Michael A. Bruno Shareholder Giordano Halleran & Ciesla Real Estate Land Use & Development Law Corporate & Business Litigation Renewable Energy Affordable Housing Energy, Climate Change and Public Utilities Business and Banking
Shareholder

Mike, chair of Giordano, Halleran & Ciesla's Redevelopment practice area and co-chair of our Real Estate practice area, focuses his practice area on real estate transactions and approvals with an emphasis on redevelopment, planned residential development, affordable housing, and mixed use development. Mike represents and counsels companies and developers in every phase of real estate acquisitions, financing and development including redevelopment agreements and long and short term financial agreements and other state, regional and local agency financing programs available in connection...

732-741-3900
Marc D. Policastro Attorney GHC Law
Shareholder

Marc, Chair of the Environmental Department, is a transactional, business attorney, who focuses his practice in development, redevelopment, environmental compliance cases, corporate transactional matters, land use, zoning and business counseling. Admitted to practice in New Jersey and New York, he has represented numerous national developers, manufacturers, cogeneration facilities and utilities, automobile dealerships, lenders, borrowers and municipal boards in myriad land use contexts, including commercial and residential development and due diligence matters. He also focuses on complex...

732-741-3900
Donna A. McBarron, Giordano Halleran Law firm, real estate lawyer, redevelopment attorney
Of Counsel

Donna is of-counsel to the Real Estate and Leasing Departments. She has over 20 years of experience dealing with complex commercial real estate matters, negotiating commercial leases, and has represented multiple municipalities in connection with their affordable housing litigation and compliance. Donna received her BA from Rutgers University and her JD from Rutgers University School of Law.

732-741-3900
Brian Shemesh Real Estate Lawyer Giordano NJ
Associate

Brian, an Associate in the firm's Real Estate Practice Area, focuses his practice on all land-related matters, including redevelopment projects, commercial real estate transactions, and landlord-tenant disputes.

732-741-3900
Kyle J. Campanile Giodano Law FIrm
Associate

Kyle Campanile is an Associate in the firm's Real Estate, Redevelopment and Planned Real Estate Development Practice Area. Mr. Campanile focuses his practice on commercial real estate and land use matters, with emphasis on development, redevelopment and facilitating transactions. Mr. Campanile has experience preparing and reviewing applications for site plans, use and bulk variances, and long-term tax abatements. Additionally, Mr. Campanile has negotiated and prepared agreements concerning financings, leasings, acquisitions and sales.

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