The COVID-19 crisis is forcing land use boards to pioneer unconventional means of doing business. Although states are largely free to regulate the procedure of these meetings, the right to public comment is constitutionally guaranteed. Fueled by statewide shut-downs, virtual quasi-judicial hearings present unique challenges when juxtaposed with the necessity of public forums. To comply with the applicable standards, electronic access to the meeting must be sufficient to emulate the degree of public participation that would be afforded to the public in an in-person meeting. Procedurally, the hearing must also afford affected parties the opportunity to be heard.
It is important for the applicant’s attorney to confirm the municipality has fulfilled their procedural pre-meeting duties, such as giving adequate notice of the hearing to the public. Any local notice ordinances must be observed – the virtual nature of a hearing will not negate these requirements. Some municipalities require certain maps or plans be made available for public inspection for a specified period in advance of a meeting. These requirements can often be satisfied by publicly posting the relevant documents on a municipal website.
Unlike local governing body meetings, a land use approval proceeding may be classified as quasi-judicial. Quasi-judicial hearings involve deadlines for decision-making, an opportunity for the public to review the applicant’s evidence, question witnesses, and present their own witnesses and evidence. Thus, boards are now presented with a situation where they must swiftly process complex applications using untested technology at the risk of a due process violation. If a quasi-judicial hearing must be heard during the COVID-19 emergency, the following practices should be implemented:
- All required notices should state that the hearing will be held “virtually” and include the “virtual location.”
- For swearing-in of witnesses, a board should examine how its local court(s) are swearing in witnesses.
- In order to ensure proper transcription of the hearing for appeal purposes, transcription by a court reporter is always preferable.
To further ensure public participation, a script is essential. Well before a meeting starts, a script should be prepared for a moderator to use that addresses the logistics that typically would not exist in meetings held pre-COVID-19. This includes making sure to take a roll call, having everyone state their names in the beginning of the meeting and any time before they speak, to mute their lines while not speaking, etc. If it becomes necessary to declare a building open to the public for a meeting, make sure to keep social distancing measures in place and limit room occupancy.
At this time, the best guidance you can turn to is how your local judicial system is operating during this virtual dilemma. The ultimate standard for judicial review will likely be whether the procedure was fundamentally fair to both the applicant and concerned citizens. Accordingly, if it’s good enough for the courts, it’s good enough for a quasi-judicial hearing by a local land use board. If and when there is a return to normal governmental services, applicants would be wise to seek ratification of any actions that a board made during a virtual proceeding.
Neil Andrew Stein is a principal of the firm Kaplin Stewart Meloff Reiter & Stein and a member of the Land Use, Zoning & Development Department. He has extensive experience in zealously representing landowners, developers, institutions, and non-profit groups in all phases of real estate law including complex transactions, entity structuring, financing, land use approvals, land use litigation, eminent domain and real estate tax appeals. Neil is currently an Adjunct Professor of Real Estate Law at the Temple University Beasley School of Law and lectures frequently to professional organizations in Pennsylvania and New Jersey.