Public input at meetings of council and statutory boards is critical to the proper functioning of government. But not all opportunities to speak are the same.
If you came out to speak at yesterday’s Zoning Board hearing against an application – it was not entered in the record for the application.
In this post, I’ll outline the problem and then make a few suggestions as to how we might find a fix.
Types of Public Input
Here are the most common forms of input at public meetings:
- Ordinances: Members of the public can speak to a particular ordinance under discussion.
- Good and Welfare: This is an opportunity, when anyone can speak generally, on any topic of their choosing.
- Development Applications: Members of the public are provided an opportunity to question experts regarding testimony as well as provide general testimony of their own about a particular project.
Knowing the difference is critical, if you want your comments to have their intended effect.
Sometimes, at council meetings, members of the public will be confused when someone that has spoken at the podium about an ordinance, gets up to speak again at Good and Welfare (where you generally only speak once).
Each portion where there is an opportunity for public input is different and there are technical rules to follow when providing comments / testimony. Understanding these differences in worthwhile. If you aren’t careful, your statements may not be appropriately tied to applications.
The difference between comments and testimony came up yesterday, at the Zoning Board of Adjustment, where residents used the Good and Welfare portion of the meeting to speak out on an application which was not open at the time.
Those comments will not be part of the record they spoke about and should not be considered by the Zoning Board.
The Township Code and Municipal Land Use Law (MLUL)
Our Town Code contains a provision calling for public input, on any topic to be permitted, around 9pm, at meetings of the Planning Board and the Zoning Board of Adjustment. This opportunity for comment is not testimony; no one is sworn in. It is an opportunity to speak directly to board members about anything on your mind.
Teaneck Code Section 2-110(i)(4):
Public participation: At a reasonable hour during each regular or special meeting of each Board, and at approximately 9:00 p.m., the public shall be permitted to speak for a reasonable time on any subject, whether on or not on the agenda.
Applications are governed by the Municipal Land Use Law (MLUL), which requires that any testimony given by interested parties about an application be provided under oath (or affirmation). It provides residents (or others) the ability to question experts about their testimony and / or cross question them through counsel. It also provides the applicant an opportunity to ask questions of the resident’s testimony through their counsel, as well.
Municipal Land Use Law 40:55D-10 Hearings.(6)(d)
The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.
What happens if you speak at Good and Welfare about an Application?
The short answer is that it doesn’t count as part of the application. As opposed to the Township Council, the Zoning Board of Adjustment is a quasi-judicial board. They are not elected (although they are appointed by council members, who are) and represent the people of the town when they hear development related applications for variances and other approvals according to the MLUL.
Applicants that appear before the Zoning Board, have a hearing on their particular application. The hearing is started by the chair, who will call the hearing to order and the hearing ends when the chair closes the hearing.
The sum total of what happens between the opening and closing of the hearing becomes the record for the board to consider.
Good and Welfare comments are not included in the record
The record for an application is defined by State statute and certain elements are required.
One of the core elements of the due process required by statute is the evidentiary record. There are rules regarding how it’s formed and understanding these rules is important if you wish to appropriately influence an application.
Permissible and impermissible methods of influence
Items, such as petitions1, which frequently can be submitted to the Township Council are not permitted for development applications. Nor are letters (with some exceptions for certain reports of public entities) and typically will only be permitted when an author is present to be questioned.
Public comments, critical or in support of the application, must be made under oath. Residents will be sworn in and can give testimony about the applications.
The critical difference between the types of comments made in connection with an application where the resident is sworn (or affirmed) and those during good and welfare, is that when you are sworn in, you are now considered a witness. Witnesses can be questioned, the elements of due process are observed, and your comments become testimony, as far as the law is concerned.
Comments made during good and welfare are not testimonial and do not count under the MLUL requirements.
Yesterday, the Zoning Board of Adjustment heard applications for several items on their agenda. As the code requires, the board paused the hearings for applications to open for Public Input around 9pm. Many residents got up at the time designated for “Good and Welfare” to speak about items that were on the agenda, as well as other concerns. Many spoke out regarding a particular project, on the agenda for 100 State Street (you can read about it here, it’s not the subject of this post).
While those residents who choose to speak had every right to do so AT GOOD AND WELFARE under 2-110 of the Township Code, their comments will not be included in the application for the project they were speaking about.
There’s good reason for this — the board, as a quasi-judicial entity is compelled to act based on an application and the findings of fact / proofs, presented at the hearing. The Board is not supposed to be deciding applications based on the basis of public support (for or against).
The State law governing development applications, requires that anyone speaking at a hearing have the opportunity to be cross-examined by the applicant or interested parties (or their counsel). This makes sense, if you view it as a judicial hearing. Cross examination allows a factual record to be obtained and due process to be ensured.
None of this is present at the Good and Welfare portion of the meeting.
For every resident that stood up at Good and Welfare:
- No statements were made under oath (or affirmation) as required by the MLUL.
- The attorney and even applicant weren’t necessarily in the room during Good and Welfare to hear or respond to public input comments
- The statements were made outside the opening and closing of the application, itself.
If this application, or any other, gets appealed to a Court, the many people that spoke (for or against) during the section for good and welfare will find that their statements did not make it into that courtroom because they were not made part of the record.
Meanwhile, anyone speaking during the application, will be part of the record.
How to fix this issue moving forward?
I can think of a few ideas and I’ll put them forward below for discussion.
Modify 2-110(i)(4) to one of the following:
1. Public participation: At a reasonable hour during each regular or special meeting of each Board, and at approximately 9:00 p.m., the public shall be permitted to speak for a reasonable time on any subject, whether on or not on the agenda. Per NJSA 40:55D-10 Hearings.(6)(d), public comments made during this period shall not be included in the record for any particular application.
2. Public participation: At a reasonable hour during each regular or special meeting of each Board, and at approximately 9:00 p.m., the public shall be permitted to speak for a reasonable time on any subject, except items on the agenda, which may be made during the appropriate application.
I’m leaning toward the first option. This would clarify what comments were appropriate and how they would register. Residents concerned about an application, could wait and speak during the application. Others, not concerned with becoming part of the record, would still be able to speak during public input, knowing their comments were non-testimonial. This should clear up some of the confusion in the room.
I would also favor the creation of an informational handout for residents attending a meeting.
The rules regarding applications and the function of boards is complex, but it’s incumbent on the Township to explain these rules as much as possible, so that the Testimony of residents are appropriated included in the record.
1. “The law concerning receipt of unsworn written petitions by municipal boards is well-defined in New Jersey. In short, the law provides that hearings on site plan and variance applications before municipal boards are quasi-judicial proceedings, and as such, the boards may consider only sworn, competent, credible testimony of individuals who are available for cross-examination. Seibert v. Dover Township Board of Adjustment, 174 N.J.Super. 548, 417 A.2d 72 (Law Div.1980); Exxon v. Bernardsville Board of Adjustment, 196 N.J.Super. 183, 481 A.2d 1172 (Law Div.1984); Cranford Land Development Ordinance, Sec. 136-4I(2). In both Seibert and Exxon, the courts reversed the boards decisions because the board admitted unsworn written petitions into evidence in violation of the public’s right to cross-examine the petitioners, determine their credibility and test the merits of their objections. In those cases, the courts were also persuaded to reverse the boards’ conclusions because they were otherwise unsupported by substantial credible evidence.”
– Lincoln Heights Ass’n v. Township of Cranford Planning Bd. (314 N.J.Super. 366)