Remote Municipal Land Use Public Hearings
Frank Scangarella, Esq. June 1, 2020
New Jersey municipal planning boards and zoning boards of adjustment (“Planning and Zoning Boards”) have struggled to meet their legal obligations in conducting public hearings during the COVID-19 Pandemic. Their obligations to conduct public meetings remotely in response to emergency orders requiring social distancing (Emergency Orders), has presented unique challenges for their compliance with the Municipal Land Use Law (“MLUL”) and the Open Public Meetings Act (“OPMA”). This article provides guidance to Planning and Zoning Boards in navigating the legal and technical issues necessary to successfully conduct remote meetings with a focus on public hearings of municipal land use applications pursuant to N.J.S.A. 40:55D-10 (“Public Hearing”).
Planning and Zoning Boards provide a vital service to the residents of their municipalities through the administration of the MLUL, and our communities are significantly impacted by the decisions of Planning and Zoning Boards as they decide applications under their respective ordinances. Planning and Zoning Boards conduct a quasi-judicial proceeding based on an administrative record in deciding a land use application. Planning and Zoning Boards are required to provide transparency in the process to ensure fairness to the applicant. Given the direct impact of land use applications to the lives of residents, Planning and Zoning Boards must also ensure that their administration of the process protects the public’s right through notice and participation in Public Hearings (“Due Process Rights”).
The practices and procedures in place to ensure Public Hearings have been conducted fairly and respective of the public’s Due Process Rights have evolved over many decades and throughout this time, Public Hearings have been held in physical public meeting spaces. Emergency Orders preclude the use of physical public meeting spaces for Public Hearings, leaving Planning and Zoning Boards to seek alternative venues in which to conduct Public Hearings.
While the OPMA has always allowed Planning and Zoning Boards to conduct public meetings through electronic means, recent passage of emergent amendments to the OPMA permit Planning and Zoning Boards to conduct Public Hearings through electronic means during periods of emergency. This has increased the attractiveness of Video Conferencing Software (VCS) as a viable option to Public Hearings. Planning and Zoning Boards’ utilization of VCS in conjunction with other adjustments to the application review process set forth herein enable them to meet their obligations under the MLUL and OPMA.
Planning and Zoning Boards’ ability to comply with the MLUL and OPMA in its utilization of VCS to conduct Public Hearings (“Remote Public Hearings”) requires adjustments to four elements of the land use application review process: public notice, document review, website structure, and Public Hearings.
Public Notice. Planning and Zoning Boards must revise the form of Public Notice to advise that the meeting will be conducted remotely using online video conference software. The Public Notice should direct the public to an appropriate page of the municipality’s website for remote meeting registration and for instructions to attend, testify and/or cross examine witnesses, as well as alternative means of attending the remote meeting in the event the public lacks computer access. The Public Notice should provide the contact information for the Board Secretary as a point of contact for members of the public seeking to attend by phone. The Public Notice should also encourage those members of the public interested in giving testimony, introducing documents or referencing exhibits, and/or undertaking cross examination at the Remote Public Hearing, to provide their name and address to the Board Secretary via email or phone prior to the meeting if possible. Such information will reduce delays in the Remote Public Hearing associated with identifying the individual, referencing and introducing exhibits, and questioning witnesses.
It is necessary to revise the Public Notice to provide instructions as to the opportunity to inspect documents on a suitable page of the website as of a certain date, and alternative arrangements to access the plans and application documents including the contact information for the Board Secretary as a point of contact. The Public Notice should also encourage members of the public interested in reviewing documents to provide their name and address to the Board Secretary via email or phone to arrange to schedule document review prior to the meeting if possible.
The MLUL provides 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.” In response, some Planning and Zoning Boards are arranging to have documents inspected by members of the public in their vehicles and in municipal spaces that remain open to the public (e.g. lobby of the municipal building or police department) during the State of Emergency. Whether it be the Public Notice or the instructions on the website regarding document review, the public needs to be notified of such alternative arrangements for document review.
The Website. As mentioned above, the Public Notice will direct the public to the website for remote meeting attendance instructions, registration for those wishing to attend and testify and/or cross examine witnesses, as well as alternative means of attendance in the event the public lacks computer access. Although not required, it recommended that the information be published on the website the day of publication of the Public Notice.
Municipalities should ensure their websites are structured to accommodate the increased information necessary for implementation of remote meetings. Although the design of each municipality’s website varies, meeting information should be organized to enable the public to quickly and intuitively obtain information relevant to a particular agenda item. A number of Planning and Zoning Boards have revised their websites to provide detailed information necessary for the attendance of the public at Remote Public Hearings. To be cost effective, the Board Secretary must have the ability to add meetings, agenda items, links to each agenda item page, and receive public comment.
Document Repository. Planning and Zoning Boards should seek to establish a document repository in a secure location through a hosted service such as Microsoft Azure or Amazon Web Services, to which staff and the applicant possess rights to upload and name documents. Moreover, such documents should be posted to the meeting action item page discussed below for review prior to the Remote Public Hearing. The repository provides a means of simplifying document management, reducing delays during the Remote Public Hearing and advances many of the essential purposes of aiding public access embraced by the MLUL and OPMA.
Prior Identification of Witnesses and Exhibits. The prior identification of known witnesses and exhibits serves to significantly reduce the potential for delay during the Remote Public Hearing. To that end, Planning and Zoning Boards are encouraged to develop procedures and schedules for applicants’ submission of witnesses, documents to be introduced into evidence and proposed exhibit numbers. Such a procedure works well when integrated with a document repository as discussed below.
Remote Public Hearing. The MLUL defines the Public Hearing process: (1) evidence will be presented in the form of witness testimony and documentary evidence; (2) testimony shall be given under oath and subject to the cross examination of all interested parties; (3) a verbatim recording of the proceeding shall be kept. Not specifically required by the MLUL, but also essential is the need to (4) conduct the meeting at the date and time scheduled; and (5) control access to invitees and members of the public, and maintain order of the meeting (minimizing disruption to removal of attendees and maintain security). Understanding the above components of the Public Hearing are critical in moving from a physical meeting space to a remote meeting using Video Conferencing Software (VCS).
Video Conferencing Software. In seeking a substitute to a physical meeting space, many Planning and Zoning Boards are turning to VCS. Specifically, the selected VCS will provider
1. A means of communicating video, audio, and documents among attendees in real time;
2. Verbatim recording of the proceedings;
3. A means of reserving the date and time of the meeting (with sufficient duration);
4. Registration and other controls for attendee access and removal; and
5. Data Security.
Adoption of VCS Features. In considering VCS, Planning and Zoning Boards are cautioned to avoid or delay adopting “nice to have” non-critical features. Each feature includes a set of protocols and business / technical processes that require time to learn and integrate into the Planning and Zoning Boards’ business practices. Moreover, Planning and Zoning Boards should carefully consider the wisdom of substituting VCS functions for proven Board practices. For example, when the meeting is scheduled with VCS it offers to send meeting invitations to attendees for the Board Secretary/Technician. Many Planning and Zoning Boards have relied on such features only to learn that certain attendees didn’t receive the invitations. It is recommended that at least initially, Board Secretary/Technicians follow their current procedure for communicating with Board members and professional staff regarding scheduling, remembering to cut and paste meeting information provided by the VCS. Planning and Zoning Boards are also advised to avoid (at least initially) using VCS as a document storage solution. Although frequently available, the level of complexity and risk of problems in implementation during a meeting, far outweigh the potential advantages of current protocols for document sharing and storage.
Prerequisites to Using VCS. The successful remote meeting using VCS requires attendees to possess the technology necessary for their participation. Like all software, there are minimum technical requirements for VCS’ proper operation, specifically, sufficient computer processing power, monitors, cameras, microphones and speakers and sufficient internet service to accommodate video transmission (“Adequate Technology”). For example, attendees frequently struggle to utilize VCS’ audio features during remote meetings (not a failing of VCS but rather in-Adequate Technology or lack of user technical proficiency). All of the VCS referenced below furnish separate teleconference call in numbers in meeting instructions when the meeting is scheduled. When inviting participation of board members, staff and professionals who may have in-Adequate Technology or lack technical proficiency, it is recommended that the invitation suggest the participant use the VCS and also call in with their phone. Each user can shift to the VCS audio once they are confident their computer audio is adequate and they have the know-how to operate it. Through adoption of VCS features over time, Planning and Zoning Boards will be better positioned to focus limited resources on successfully utilizing VCS for the Remote Public Hearing.
Available VCS Solutions. Of the dozens of available VCS solutions, Appendix B outlines four (4) VCS solutions with features, technical requirements and pricing. Each is presented with Planning and Zoning Boards’ needs in Remote Public Hearings in mind. Each VCS solution provides for secure video conference calling, separate audio call in numbers, minimum of 200 participants, screen sharing, recording and transcription, and a waiting room.
Attendees’ Technical Abilities. As referenced above, utilization of VCS for Remote Public Hearings requires members of Planning and Zoning Boards, applicants, witnesses, and the general public (Attendees) to possess Adequate Technology. The following will aid in understanding respective needs and responsibilities:
- Board Representation. It is the Planning and Zoning Boards’ responsibility to ensure their members and staff are provided with the Adequate Technology meeting the standards set forth in Appendix B.
- Board Paid Professionals. Planning and Zoning Boards’ paid professionals should be required to ensure they possess the Adequate Technology to effectively participate in remote meetings utilizing the VCS based on the requirements set forth in Appendix B
- Applicant Representatives. Applicants are responsible for ensuring they and their representatives and experts possess the Adequate Technology to effectively participate in remote meetings utilizing the VCS based on the requirements set forth in Appendix B. This includes the giving of testimony, attendance and testimony of applicant witnesses, and introduction of documents.
- Public Witnesses. Members of the public wishing to give testimony are responsible for ensuring they possess telephone access or Adequate Technology to effectively participate in remote meetings utilizing the VCS based on the requirements set forth in Appendix B
VCS Security. In selecting VCS, security features should also be considered. We have all heard about Zoom Bombing, and are rightfully cautious about the security of our remote meetings. Every time we access the internet, we are subjecting our computers, phones and tablets to a host of security threats, and VCS is no exception.
There are several different protocols for ensuring software is protected from cyber-attacks. The four VCS summaries set forth in Appendix B provide information regarding each products security features. In short, each product provides some level of digital encryption of chat, video, audio and recording, with Microsoft Teams G-3 (government entity) providing the most robust security for government entities.
Security vulnerabilities are also reduced through the protocols employed in conducting remote meetings as discussed above; specifically, requiring registration for meetings, passwords to participate, knowledge of registrants at the point of accepting registration, placing all attendees in waiting rooms at the commencement of meetings, approving them individually to participate in the meeting, and inactivating audio and screen sharing as default settings for all users. Again, the VCS discussed in Appendix B were selected with such features in mind, and anyone administering VCS for remote meetings is well served by strictly following them.
Security vulnerabilities can also be reduced by limiting the features of VCS in your remote meetings, using VCS to send emails, and using VCS for document storage. Moreover, running VCS on computers which are not connected to municipal computers networks will reduce security risks to such networks.
The above discussion is not intended to recommend security solutions to Planning and Zoning Boards but rather to remind them that although there is a strong motivation to quickly implement VCS to proceed with Remote Public Hearings, Planning and Zoning Boards should consult with their IT departments/consultants to ensure security risks are properly weighed prior to formulating long-term solutions.
The Presentation. Applicants are tasked with explaining to the Planning or Zoning Board how their land use objectives can be achieved in a manner that is compliant with the legal requirements of the MLUL and numerous other laws. This narrative relies on witnesses and documentary evidence in the form of maps, reports, diagrams and technology that have influenced the process throughout its evolution.
The tools utilized by applicants in presenting their case directly impacts the remote Public Hearing process. Although many applicants now incorporate videos, power points, and other presentation technologies in their presentation, many continue to employ practices in place since the 1950s. And these traditional presentations are used because they are simple, intuitive and effective.
The attention given to Remote Public Hearings and your reading this article is largely motivated by a desire to understand whether and how Remote Public Hearings will accommodate these traditional presentations. Although Remote Public Hearings provide a means of continuing the traditional presentation process, applicants that have incorporated presentation technologies into their presentations will find the transition to Remote Public Hearings more intuitive.
Those who utilize presentation software such as Microsoft Power Point, Google Slides, Prezi, and Keynote have acquired the skills necessary to organize their presentations (witnesses, documentation and graphics) in a digital format that presents the narrative in an organized manner that is readily understandable to the viewer. Such applicants are able to easily learn the screen sharing features of VCS to enable them to give their presentations to Planning and Zoning Boards during Remote Public Hearings substantially similar to that utilized during person-to-person Public Hearings. Those Planning and Zoning Boards that make such presentations available to the public prior to the Remote Public Hearing significantly increase the transparency of the land use application process.
Application Process Overview. A checklist of items to be addressed commencing the day prior to the Issuance of Public Notice through the Public Meeting is set forth in Appendix C.
In following the measures set forth herein, Planning and Zoning Boards will (i) minimize the risk of non-compliance with the MLUL and OPMA in their administration of VCS and (ii) implement VCS for their Remote Public Hearings in a manner than minimizes disruptions to enable Planning and Zoning Boards to focus on their core missions.
Frank Scangarella practices law in the State of New Jersey. He started his legal career as a deputy attorney general and for many years he served as in-house counsel to a number of State government entities, where he also led in the adoption of technology to transform business operations. He is currently an attorney at Winne Banta Basralian & Kahn, P.C. Contact Frank with questions regarding this article at 201-562-1002, 609-731-6695 or on Linkedin.
FORM OF PUBLIC NOTICE
NOTICE OF VIRTUAL PUBLIC HEARING
OAK TOWNSHIP PLANNING BOARD
PLEASE TAKE NOTICE:
That [applicant] (“Applicant”) has filed an application for Amended Site Plan A approval with the Township of Oak Planning Board (the “Planning Board”). The subject property is Block X, Lot X on the Tax map of the Township of Oak, and is located at X Oak Street, Oak Township, New Jersey. The Property is located in the XXX Zone.
The Planning Board will conduct a public hearing on June 25, 2020 at 7:00 p.m. However, due to the current state of emergency and public health emergency declared by the Governor of the State of new Jersey, and in an effort to prevent further spread of COVID-19 and to protect public health and safety, the township municipal building remains closed, and the public hearing will be held electronically via ZOOM’s video conferencing service and telephonically only. During the virtual public hearing, members of the public will have full access to the hearing and will also be able to give public comments, present objections, and/or cross examine witnesses on the application being heard by the Planning Board.
Complete instructions to register for attendance are posted on the Oak Township’s website: https://www.oaktownshipnj.gov/planningboard/ and the meeting agenda. Members of the public wishing to attend via ZOOM must have a computer, laptop, tablet or mobile phone (Electronic Device) and internet connectivity capable of supporting ZOOM. A ZOOM participant who wishes to address the Board by voice, with or without video, must possess an Electronic Device with a camera and/or microphone. Those wishing to attend by phone may participate by registering and calling the telephone number provided in the instructions on the above website. Members of the Public interested in attending but are unable to attend through either means should contact the Board Secretary during normal business hours at ###-###-#### or email@example.com. Members of the public who do not register but are interested in giving testimony, introducing documents or referencing exhibits, and/or undertaking cross examination at the public hearing, are strongly encouraged to provide their name and address to the Board Secretary via email or phone prior to the meeting to reduce delays during the public hearing.
If you wish to review the application or any of the application materials, including the plans, reports and maps submitted, these documents are available for review and download on the Oak Township’s website at no cost: https://www.oaktownshipnj .gov/planningboard/. This information will be available on the website for at least 10 days prior to the virtual public hearing. Members of the Public interested in reviewing maps and documents but unwilling or unable to do so or have any questions, should contact the Board Secretary during normal business hours at ###-###-#### or firstname.lastname@example.org.
Please take further notice that the Planning Board may, in its discretion adjourn, postpone, or continue said review from time to time and you are hereby notified that you should make diligent inquiry of the Planning Office concerning such adjournments, postponements or continuations. This notice is given by order of the Oak Township Planning Board.
VIDEO CONFERENCING SOFTWARE
SOLUTIONS, FEATURES AND PRICING
LAND USE APPLICATION PROCESS CHECKLIST
INTEGRATING VIDEO CONFERENCING SOFTWARE
Day Prior to Public Notice.
- Applicant confirms with Board Secretary that its representatives and witnesses remote meeting participation via VCS
- Remote Meeting
- Meeting ID and Password Obtained;
- Dial in instructions obtained; and
- Select Attendee Waiting Room option
- Website updated to reflect:
- Board Secretary contact Information;
- Remote Meeting attendance instructions
- Registration Instructions;
- Remote Dial In Instructions;
- Document Review instructions (online and alternate);
- Instructions to
- Testimony / Cross Examination during the Remote Public Hearing;
- Submission of documents to be marked as exhibits;
- Advisory as to date in which documents for submission should be submitted.
Day of Public Notice:
- Public Notice Issued
- Advise Applicant of the schedule for submission of all maps and documents to be approved is 10 days prior to the Remote Public Hearing and that documents to be marked for exhibits is three days prior to the Remote Public Hearing.
Ten Days Prior to Remote Public Hearing:
- Applicant furnishes Board Secretary with identification of witnesses, proposed exhibits and exhibit numbers;
- Board Secretary identifies individuals who will be attending via phone (those lacking VCS accessibility), and confirm whether or not the individual will be
- Giving testimony;
- Submitting documents into evidence;
- Asking questions of any witnesses.
- Maps and documents for which approval is sought at a hearing shall be on file for public inspection:
- Alternative Arrangements (mailing copies to requesting party, review at alternative open municipal location).
The Board Secretary will revise the script to reflect the need to call on such to give testimony, submit documents or cross examine any witness.
Two Days Prior to the Remote Meeting/Public Hearing:
- Utilization of the VCS. The Board Secretary or designee responsible for administering the technical aspects of the meeting (Technician) is familiar with the functions of the VCS set forth below:
- Admission of Attendees;
- Muting Attendees;
- Dismissing Attendees;
- Chat communication with attendees one on one and as a group;
- Recording function;
- End Recording;
- Screen sharing function;
- Retrieving documents from desktop or file server to be shared via VCS;
- Authorizing screen sharing of an individual attendee;
- Pre-Marking. The Board Secretary should pre-mark exhibits;
- Dry Run. Before using VCS for the first time for a Remote Public Hearing, the Board Secretary should schedule a 20-minute rehearsal to walk through the applicant’s presentation, preferably prior to the day of the Remote Public Hearing. During that time, the applicant should (i) (ii) follow the meeting script, (iii) review the witness list; and (iv) review the documents/exhibit.
Day of Meeting
- Documents/Exhibits. The Board Secretary should have all pre-marked exhibits appropriately named and readily available to share. In addition, the Board Secretary should be prepared for the potential that any member during the meeting may wish to submit a document into evidence. In such a case, the Board Secretary will need to unmute the attendee.
5 Minutes Prior to Meeting Start (Board Secretary / Technician)
- Open VCS
- Test screen sharing
- Admit Planning and Zoning Board professional staff (exclusive of the Board)
- Approve admission
- Confirm audio and video feed
- Enable Chat Function
- Ask individual to mute their VCS until they want to speak
- Admit Applicant / Applicant Witnesses
- Approve admission
- Confirm audio and video feed
- Enable Chat Function
- Ask to mute their VCS until they want to speak
- Have Applicant test screen sharing
- Admit Non-Board Applicant Attendees
- Approve attendees into the Meeting based on identification
- Disable Chat Function
- Disable Screen Sharing
- Advise Participants that Meeting is Being Recorded
- Advise they will be muted and to be heard they will raise their hand
- Answer questions
Meeting Start (Board Secretary)
- Start recording
- Board Members
- Approve admission
- Confirm audio and video feed
- Enable Chat Function
- Ask individual to mute their VCS until they want to speak
Hand Over Meeting to Chair:
- Open Public Meetings Act Statement
- Advise Participants that Meeting is Being Recorded
- If technical difficulties arise, Chair suspends meeting while attempts to resolve are made
- The meeting is being recorded;
- Public’s right of cross examination and a standard limit as to time for comment, and should limit redundant comments and questions to ensure “orderly remote participation;”
- Note materials for meeting available online through Town website for the public
- Introduce all members, staff, and persons on the agenda
- Each speaker states their name before each presentation, comment, or question
- All votes taken by roll call
- Begin Meeting Script
See Social gatherings are limited by Executive Order 104 (March 16, 2020), Executive Order 119 (April 7, 2020), and Executive Order 138 (May 5, 2020).
See N.J.S.A. 40:55D-1 et seq.
See N.J.S.A. 10:4-6 et seq.
See The Department of Community Affairs, Division of Local Government Services issued general guidance regarding this matter on March 20, 2020 and more specific guidance on April 2, 2020 (Hereafter “DLGS Guidance”).
See Dolan v. DeCapua, 16 N.J. 599, 612 (1954).
See form of Public Notice is set forth in Appendix A.
See As per DLGS Guidance, the notice must provide web-meeting access information, and conference call dial-in information for individuals lacking computer or mobile device access. The notice should state that individuals lacking the resources or know-how for technological access should contact the Board Secretary for assistance in accessing the plans and the meeting. A telephone attendee’s desire to testify, submit documents into evidence, and conduct cross examinations will require particular attention during the Public Hearing. Attendee registration instructions for the remote meeting are generated at the time of scheduling the remote meeting. As such, it will be necessary to schedule the remote meeting prior to issuance of the Public Notice. The practice employed by Planning and Zoning Boards providing full registration information to access the remote Public Hearing in the Public Notice is discouraged. Utilization of passwords significantly reduces security risks. The Public Notice should advise that members of the public interested in attending the meeting should contact the Board Secretary upon contact from.
See As per DLGS Guidance, the notice must provide web-meeting access information, and conference call dial-in information for individuals lacking computer or mobile device access. The notice should state that individuals lacking the resources or know-how for technological access should contact the Board Secretary for assistance in accessing the plans and the meeting. A telephone attendee’s desire to testify, submit documents into evidence, and conduct cross examinations will require particular attention during the Public Hearing.
See N.J.S.A. 40:55D-10b.
See The Board Secretary is also encouraged to coordinate document submissions with the applicant to ensure application materials inclusive of exhibits are made available no less than 2 days in advance of the meeting and the likely need to pre-mark exhibits.
See By implication, the inclusion of attendance and remote meeting registration in the Public Notice requires Planning and Zoning Boards to pre-schedule the remote meeting beforehand.
See Some websites provide the following hierarchy: (i) top-level page setting forth a list of links to current and prior meeting years (ii) a current year meeting page, setting forth a list of meetings organized by month with links for each meeting to public notice, agenda, and minutes/resolutions; (iii) a meeting page setting forth the agenda of each meeting listing links to meeting actions; (iv) and a meeting action item page setting forth documents for review, alternate instructions for document inspection, instructions for attendance to the Public Hearing through VCS and other instructions unique to conducting the remote meeting relative to the action item, and a form submission for public communications.
See Although it is not legally permissible nor feasible to limit the record to previously identified witnesses and pre-marked exhibits, strongly encouraging applicants to comply with such a practice will significantly streamline the remote Public Hearing process.
See N.J.S.A. 40:55D-10.
See The scheduling should be expanded to include the applicant and members of the public expressed interest in attendance, testifying, etc.
See Rather, as discussed above, utilizing a secure online storage solution for documents provides a more secure alternative.
See Details of such requirements are set forth in Appendix B.
See Telephone/mobile phone communications also provide the majority of VCS functions serving as a vehicle for real time communication among individuals in different locations including audio, and recording. Many meetings have and will continue to be held in a manner compliant with the law using telephones. However, for purposes of Board Meetings, VCS’ video features and the recording thereof provide a distinct advantage in Planning and Zoning Boards’ assessment of evidence necessary in conducting public hearings. To that end, and as previously mentioned, an individual’s attendance via phone (i.e., lacking VCS accessibility), presents unique challenges to the Board Secretary in managing testimony and cross examination during the Public Hearing .
See Avoid Board quorum prior to commencement of the public meeting to conform with the OPMA