As is always the case, the Applicant will be required to publicly Notice for the Public Hearing, in accordance with Prevailing Provisions of New Jersey Law.
The Public Notice will need to identify the log-in and / or call-in process / procedures for public review / participation. (The Notice will also have to satisfy other Standard Provisions of New Jersey Law.)
The Notice will also be required to provide guidance to individuals who either lack resources or otherwise lack technological proficiency to access / participate in the Remote Public Hearing process.
The Notice shall also advise the Public that individuals can access / review the Application materials online (presumably through the Borough Website) (at least 10-days prior to the Public Hearing).
The Notice shall also advise the Public that other reasonable means of review (of Application materials) can attempt to be honored / accommodated as well (if the circumstances so require).
Open Public Meetings Act
As is always the case, at the outset of the meeting, the Chair / Secretary will need to read the Open Public Meetings Compliance Statement, confirming, for the benefit of the Public, that the Public Meeting was duly advertised in accordance with New Jersey Law.
The said statement should likely reference the specific / supplemental Notice Provisions which were observed in connection with the Remote Meeting Process, as referenced elsewhere herein.
Out of an abundance of caution, and if possible, there should also be a statement read that there is a so-called “hotline” phone number or e-mail which any member of the Public can call / access if he / she is experiencing any computer / technological issues which is preventing the individual from meaningful participation in, or observation of, the Board Meeting. In response thereto, the Board Secretary can attempt, in good faith, and with the assistance of Information Technology personnel, attempt to troubleshoot any particular issue.
Additionally, the procedures and requirements for making public comments during a remote public meeting, along with an explanation of the audio muting function of the electronic communication platform being utilized, shall be announced at the beginning of the remote Public Meeting.
Application Submission Process
The Applicant shall be required to provide the Board Secretary with appropriate materials / plans / documents in an electronic format, so that the Board Secretary can arrange for the said information to be placed on the Borough’s Website, available for public inspection.
In conjunction with the above, the Borough may need to consider adopting an Ordinance amending the Submission Checklist accordingly.
Unless Prevailing Regulations provide to the contrary, the Applicant’s representatives shall, when possible, submit additional / anticipated exhibits to the Board Secretary at least 3-days prior to the Public Hearing, so that the Board Secretary (or designee thereof) can attempt, in good faith, to have the said information uploaded to the Municipal Website so as to further facilitate the Board / Public Review Process.
Any attempt to introduce evidence which was not previously submitted will be reviewed on an individual and case-by-case basis, and in accordance with Prevailing Regulations, so as to ensure that any evidence / exhibits submitted can reasonably be reviewed by Zoning Board Members, and other interested Members of the Public.
Transmission of Application Materials to Board Members
Prior to the Board Meeting, the Board Secretary shall arrange for electronic copies of the relevant Application materials to be submitted to the Board Members.
If requested, the Board Members can also receive a hard paper copy of the relevant Application documents / plans as well.
For those Board Members who desire hard paper copies of the relevant Application materials, the same can be picked up at Borough Hall, in coordination with the Board Secretary (and while honoring any restrictions associated with physical access to Borough Hall).
Individual Pre-Meeting Board Member Activity
As is always the case, Board Members are encouraged to review the Application materials / plans in advance of the Public Meeting.
As is always the case, any in-person review of a development site should be conducted while the Board Member is in possession of a Board / Borough identification of some sort.
In the absence of extraordinary circumstances, any such on-site observations should occur during daylight hours.
Any on-site review should take place in accordance with Prevailing Social Distancing Regulations / suggestions.
As is always the case, Board Members should refrain from any substantive communications with the Applicants / Objectors in connection with the Application (except, of course, for the social norms of greetings / salutations, etc.).
Remote Meeting Protocol
As is always the case, Board Members should not lose sight of the fact that the Remote Meeting is a Public forum – which is subject to perpetual Public review / scrutiny.
The Board Members should be mindful that every word spoken during the Remote Meeting, and any action displayed during the Remote Meeting is subject to perpetual Public review / scrutiny.
There could potentially be a tendency to incorrectly believe that “no one is present or watching”, but such a belief is inaccurate and unfounded.
The video / audio recording of each Meeting will become a Public Record, subject to the Open Public Records Act.
It is important to note that the computer microphones are quite sensitive and thus, Board Members should be careful to refrain from any perceived “off-the-record” conversations before, during, or after the Remote Meeting.
Additionally, given the sensitivity of the microphones, Board Members / Representatives should attempt, in good faith, to minimize / eliminate any background noise – such as music, third party conversations, family disruptions, etc.
Though the Remote Meeting will, in some respects, lead to a more “informal” physical appearance process, subject to constitutional concerns / freedom, and subject to personal preferences, Board Members should be mindful to attempt, in good faith, to avoid revealing images / insignia / pictures which could potentially be deemed inappropriate.
As indicated, in addition to visual scrutiny, Board Meetings will continue to be recorded. (In the event of any litigation challenging a Board Decision, the reviewing Court will rely upon the transcripts of the testimony / evidence presented, and the Board comments made, during the Public Hearing process.)
Additionally, from a visual standpoint, different Remote Computer Programs offer different “viewing’ options available to the Board Members and the Public. That is, some remote options allow for all Board Members to be simultaneously visible on the computer screen; while other programs only allow a smaller number of individuals to be simultaneously visible on the screen.
Moreover, it is important to be mindful that some individuals from the Public may only be participating or observing the meeting without the benefit of a screen monitor (and, in such an event, the aforesaid individual will only be able to listen to what is said at the Hearing).
As such, to the greatest extent possible, Board Members should attempt to be recognized by the Chair or Board Secretary prior to making statements and / or asking questions.
Such recognition will allow the Public (who might not have camera access) to know who specifically is speaking, who is specifically asking questions, who is specifically answering questions, and who is specifically making statements, etc.).
The pre-communication recognition of the Chair / Board Secretary will also help facilitate the transcript preparation process. (The said process will aid the Board / Public in any litigation, in which transcript references are necessary.)
The process of being recognized by the Chair / Secretary, prior to comment, will also enhance the overall functionality and success of the Remote Meeting (which, is no different from the Regular / Live Meeting Protocol).
As is always the case, Board Members are required to independently review and adjudicate Applications based upon the testimony and evidence presented, and based upon the Board Member’s personal knowledge generated from being a resident in the community.
Generally speaking, in the event of litigation, Case Law suggests that the Board action should be upheld, unless the same is arbitrary, capricious, or unreasonable.
The aforesaid Legal Standards will not change as a result of the Remote Meeting process.
Thus, it continues to be vitally important that Board Members continue to critically review Applications, critically review the testimony presented, critically question the Applicant’s witnesses, seriously analyze public comments, etc. While the Board Resolution memorializing the Board decision is very important, the Board Resolution should be shaped, in large part, to reflect the on-the-record discussion / questions / comments / statements / findings expressed by the Board Members during the Public Hearing process.
Of paramount importance, and of paramount concern to all Board Members, is the need to ensure that the Public has sufficient access to relevant information, the Public has the right to actively observe / participate in meetings, and that all Board action is taken in a legally sanctioned and transparent fashion.
Board Members should also be mindful that the due process rights inherent in the Open Public Meetings Act and the Municipal Land Use Law are essentially designed to promote, protect, and safeguard the interests of the Public (and not necessarily the Applicant).
As such, great care should be utilized and has been utilized in the preparation of legally sufficient / detailed Public Notices advising the Public of a) the date / time of the meeting b) how to remotely review Applications and c) how to log-in, participate in, or otherwise observe the meeting, etc.
At the outset of the meeting, and presumably reinforced on the Municipal Website, the Board will attempt to have the Board Secretary have access to a so-called “hotline” number (if available), or e-mail (if available), so that, during the Public Hearing process, if a member of the public is experiencing technological difficulties, the said individual can potentially call / e-mail the Board Secretary who can, in turn, hopefully troubleshoot and correct the situation.
Such a safety feature / emergency procedure should likely be very helpful to, and reassuring to, the Public.
Such a safety feature / emergency procedure should also help insulate the Board from future litigation claims (if anyone were to allege a lack of due process associated with the Remote Hearing Process).
Meeting Disruption (Technological Issues)
In the unlikely event there is some type of intentional or unintentional computer problem from an outside / unauthorized third party, the Board Secretary, through and with the assistance of Information Technology personnel, should be able to correct any issues, remove any unauthorized digital display, and / or otherwise “mute” any unauthorized comments which are not related to, or which are otherwise disruptive of, the Public Hearing process
In the event there is any intentional or unintentional disruption of the Public Meeting, which cannot be corrected / abated, the Remote Meeting may need to be adjourned.
It is anticipated that software designers / remote hearing operators will continue to upgrade and monitor security / anti-hacking measures – and the Board Secretary will advise, as necessary.
As referenced above, in the event of a significant disruption which cannot be immediately corrected, then, depending upon the severity of the issue, the Chair may advise as to the need to abruptly close the meeting.
Out of an abundance of caution, at the outset of each meeting, Board representatives should attempt to obtain the Applicant’s consent to extend the timeframe for Board action (in the event any emergent meeting adjournment is necessitated as a result of a computer disruption).
Additionally, at the outset of each Remote Meeting, the Public can be advised that in the event of any abrupt cancellation of the Remote Meeting, Members of the Public will be encouraged to view the Municipal Website for additional information.
Meeting Disruption (Unruly Participants)
In accordance with Prevailing Law, the Land Use Board Meeting is to be conducted in a fair, thorough, judicial and legally sanctioned fashion.
In the unlikely event a meeting participant disrupts the remote public meeting process, the Chair, his / her designee, the Board Attorney, or other authorized Agent shall attempt, in good faith, to facilitate a dialogue with the disruptive individual (to the extent reasonably permitted by the electronic communications technology).
The Chair, Board Secretary, Board Attorney, or other designated Agent shall, after uncured verbal warning, mute or otherwise direct appropriate staff to mute, any disruptive member of the public. The affected individual shall furthermore be advised that continued disruption may result in the said individual being prevented from speaking during the remote public meeting process, or being removed from the public hearing computer format. (Disruptive and unruly conduct includes, but is not limited to, inappropriate behavior, such as, but not limited to, shouting, interruption, use of profanity, unduly repetitive statements, unduly argumentative statements, failure to comply with regulations, failure to follow Board Policy, and other similar causes.
Given the quasi-judicial nature of the Land Use Board, the Public Hearing process, and the Board decision, and given the need for Board Members / Applicant’s Representatives, Objector Representatives, and Members of the Public to question / cross-examine Live witnesses, unless Prevailing Regulations provide to the contrary, written comments (regarding a Development / Variance Application) will not be accepted. Note: The aforesaid Regulations may change, depending upon changing Regulations, changing Law, and new Case Law.
As is standard, when specifically authorized, the Board may decide to meet / confer in Executive Session, to discuss pending litigation matters, or other items specifically authorized to be discussed in private session. (The exact process to be employed for convening an Executive Session shall, in conjunction with Prevailing Computer Program Technology, be coordinated through the Municipal Information Technology Representatives, the Board Chair, the Board Members, and the Board Professionals.
Future Amendments to Board Remote Meeting Protocol
As is always the case, the Board Members will continue, in good faith, to confront any challenge, preserve / promote the integrity of the Public Hearing Process, and embrace modern technology to conscientiously review, analyze, and adjudicate Applications in accordance with Prevailing Provisions of New Jersey Land Use Law.
Clearly, the within protocol will be updated / amended as the interests of justice may require.