OPINION: Supreme Court of New Jersey - Township of Manalapan v. Anthony Gentile (decided June 2, 2020)
In this condemnation case, the Supreme Court considered when approval of a variance can be considered in determining highest and best use of property, the measure for damages in eminent domain cases. The Court applied the test it articulated in Borough of Saddle River v. 66 East Allendale LLC, 216 N.J. 115 (2013): there must be evidence of a reasonable probability of the variance being granted in order for it to be presented and considered by the trier of fact. If such evidence is not demonstrated by paper evidence, the trial court is to hold a Rule 104 evidentiary hearing to determine whether there is a reasonable probability. The Court reversed the lower courts, which allowed the evidence to be heard.
It appears interesting that the Court decided to hear this case, as its holding is merely an application of a principle it stated only 7 years ago. Perhaps, the fact that both the trial and appeals court erred was persuasive to the Court (and perhaps highlighted by the petition for certification) in its decision to hear the case.

BOARD HEARINGS: Many municipal planning boards and boards of adjustment have now adapted to the limitations on the number of people allowed for in-person indoor gatherings as a result of COVID-19. As a result, boards have resorted to virtual meetings using platforms such as Zoom, Google Meeting, or Microsoft Teams, as well as audio hookups by telephone.

A couple of salient features are crucial. First, the Applicant’s notice must be clear and informative. The notice for the meeting must clearly advise neighbors and other interested persons of how the virtual meeting will be conducted and how one can attend the meeting either via video or audio. To their credit, many boards are replicating that information on their agendas for a specific meeting and posting them on their municipal web sites.

Second, the Applicant’s application and accompanying maps, documents, and reports must be available for inspection at least 10 days before the scheduled meeting. Thus, many boards are requiring that these materials be uploaded onto the municipal website for virtual inspections. This would appear to be a preferred, if not necessary practice, especially if a municipal building is closed, or its hours are limited and preclude a meaningful in-person inspection and copying of documents that pertain to the application. (Given the risks, many may feel wary and uncomfortable entering a municipal building to spend time in an office to review documents.)

Third, the hearing must be conducted in a manner that affords the Applicant a full and fair opportunity to present its case, the board a full and fair opportunity to review and inquire about the application, and the public a full and fair opportunity to both inquire about the application, and if desired, to comment or present its own testimony regarding (or opposing) the application.