New Jersey Issues Regulations Governing the Conduct of Remote Public Meetings, Effective Immediately

The New Jersey Department of Community Affairs, Division of Local Government Services (“DCA”), has issued emergency regulations which, according to a recently issued notice, “establish standard protocols for remote public meetings held by a ‘local public body’ during a Governor-declared emergency, including minimum procedures to be followed to provide reasonable public notice and allowance for public input.” The DCA advises that the emergency regulations are presently in effect and have been concurrently proposed for permanent adoption in the upcoming October 19, 2020 New Jersey Register. Comments will be accepted through November 18, 2020.

As we reported previously, soon after the declaration of the COVID-19 public health emergency and the issuance of Executive Order 107, which restricted public gatherings, most governing bodies, planning boards, zoning boards of adjustment, and other public bodies in New Jersey initially canceled their meetings. Then, gradually, many began meeting remotely, relying on both existing statutory authority and emergency legislation to facilitate the conduct of electronic meetings, enacted as P.L. 2020, ch. 11 and codified in the Open Public Meetings Act at N.J.S.A. 10:4-9.3, which provides that during a declared emergency, a local public body may, using communication or other electronic equipment, conduct a meeting and any public business to be conducted thereat; cause a meeting to be open to the public; vote; and receive public comment.

Following the adoption of this emergency legislation, the DCA issued interim guidance to specifically assist planning boards and zoning boards of adjustment with conducting remote public hearings on applications for development. The guidance, titled “Planning Board and Zoning Board of Adjustments Operational Guidance – COVID-19: N.J.S.A. 40:55D-1, Recommendations for Land Use Public Meetings in New Jersey,” did not carry the force of law, and public bodies did not always comply with it. Now, in reliance on the newly enacted statutory authority to enact regulations, as set forth in P.L. 2020, c. 34, which took effect May 15, 2020 and is codified at N.J.S.A. 52:27D-18.11, the DCA has adopted emergency regulations to establish minimum procedures to be followed by public bodies when conducting public meetings during declared emergencies, and proposes to make them permanent.

The new regulations are quite detailed and should be reviewed carefully. In summary, among the requirements that apply to meetings of all local public bodies:

• A local public body may hold a remote public meeting to conduct its business during a declared emergency if the emergency reasonably prevents it from safely conducting business at a physical location with members of the public present.
• If capacity restrictions reduce the number of individuals that can be present in the meeting room to an amount below that reasonably expected for the public meeting, the local public body must either: (1) hold the public meeting at another location with adequate capacity for the reasonably expected attendance by the public; or (2) hold the public meeting as both an in-person meeting and a remote public meeting.
• If a declared emergency requires a local public body to meet remotely, an electronic communications technology shall be used that is routinely used in academic, business, and professional settings, which can be accessed by the public at no cost and which allows for at least 50 public participants (beyond those persons required to conduct business at the meeting). The technology utilized must allow the local public body to mute the audio of all members of the public as well as allow members of the public to mute themselves.
• Remote public meetings may be held by audio-only teleconferencing, electronic communications platforms with video and audio, and internet-accessible technology such as live-streaming; if a communications platform or streaming is used, a telephonic conference line shall be also be provided to allow members of the public to dial in by telephone.
• A local public body shall provide the public with similar access to a remote public meeting as members of the local public body, staff of the local public body and any individuals seeking one or more approvals from the local public body.
• Any remote public meeting where sworn testimony is being taken shall be broadcast by video as well as by audio. All individuals giving sworn testimony at a remote public meeting shall appear by video in addition to audio.
• Any presentations or documents that would otherwise be viewed or made available to members attending in person shall be made visible on a video broadcast of the remote public meeting or made available on a website for viewing or download.
• In advance of the remote public meeting, the local public body shall allow public comments to be submitted by electronic mail and in written letter form by a reasonable deadline to the official responsible for creating the meeting agenda. The local public body shall have the discretion to accept text-based public comment received during a remote public meeting held through an electronic communications platform or internet-accessible technology. Each of those comments shall be read aloud during the meeting in its entirety (or until any time limit on individual comments is reached).
• Local public bodies shall adopt by resolution standard procedures and requirements, which must be announced at the start of the meeting, for public comment made during a remote public meeting as well as for public comments submitted in writing ahead of the remote public meeting.
• Public notices of remote meetings must include clear and concise instructions for accessing the meeting, the means for making public comment, and where relevant documents, if any, will be made available.
• Electronic notice (in addition to notice as otherwise required) shall be given on the public body’s website if it has one, or on any official social media platform, and the content of that notice shall also be posted on the main access door (and be viewable from the outside) of the building where the public would routinely attend public meetings of the local public body in person.
• If the local public body expects to conduct remote public meetings for a series of regularly scheduled meetings advertised in its annual notice, the annual notice shall be revised at least seven days prior to the next regularly scheduled meeting, indicating which meeting(s) will be held as a remote public meeting and shall contain clear and concise instructions for accessing those remote public meetings, the means for making public comment, and where relevant documents, if any, will be made available. This notice shall be transmitted to two newspapers and posted on the website or official social media platform, if any.

There are also some provisions of the regulations that pertain specifically to hearings by planning boards and zoning boards of adjustment concerning applications for development:

• The land use board shall determine whether electronic communication technology can sufficiently facilitate due process of the applicant and any interested party, including the ability to examine exhibits, transcribe testimony, and cross-examine witnesses, as well as the ability of the public to comment on the application.
• Factors in making this determination shall include, at minimum, the scale of the project, number of approvals requested, degree of public interest, and number of potential objectors.
• If a land use board holds a public hearing at a remote public meeting, the adequate notice and electronic notice shall also identify where all plans and documents associated with the hearing or hearings may be accessed by the public, and provide clear and concise instructions on accessing the exhibits.
• The applicant shall submit all exhibits to the land use board secretary no less than two days in advance of the remote public meeting, and the applicant shall be responsible for converting all exhibits into an electronic format accessible to the public.
• Any remote public meeting of a land use board with one or more public hearings on the agenda shall be broadcast by video as well as by audio.
• Individuals giving sworn testimony at a public hearing held during a remote public meeting shall appear by video in addition to audio.

Compliance with these regulations require that both applicants and land use boards take specific and immediate steps to ensure that notices of remote public meetings are properly given, and that the meetings themselves, as well as any public hearings, are conducted according to these requirements.

The new regulations are codified at N.J.A.C. 5:39-1.1 et seq., and public comments on their permanent adoption will be accepted until November 18, 2020.