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The Great Unwinding: Land Use and the End of the COVID-19 Health Emergency

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The Great Unwinding: Land Use and the End of the COVID-19 Health Emergency
The first step toward getting back to “normal” is unwinding the layers of executive orders, rules, and statutes adopted during the last 15 months in response to the COVID-19 pandemic.
By Edward W. Purcell | June 16, 2021

While everyone breathes a sigh of relief as COVID-19 transmission rates are down and vaccination rates are up, land use attorneys are busy trying to acquaint themselves their clients with the “new” normal. The first step in that process is unwinding the layers of executive orders, rules, and statutes adopted during the last 16 months in response to the COVID-19 pandemic.

The touchstone for this unwinding is P.L. 2021, c.104 (“the Legislation”). The Legislation, signed into law by Governor Murphy on June 4, 2021, was intended to, 30 days after enactment, end the COVID-19 “public health emergency” invoked by the governor under the Health Powers Act. The Legislation also maintains certain executive orders put into effect during the pandemic which would otherwise have expired.

In a practical sense, the Legislation acts as type of negotiating tool between the legislature and the governor. To wit, after the Legislation was enacted, and those certain EOs were saved from expiration, the governor, per his own authority, issued EO 244 terminating the public health emergency on June 4, 2021. The EOs that were saved from expiration will be in force until Jan. 1, 2022. Broadly speaking, those EOs authorize the continuing moratorium on foreclosures and deal with other policy areas such as healthcare facility data reporting, outdoor dining regulations. COVID-19 immunizations programs, masking, social distancing, and extending certain state agency statutory deadlines. Per the Legislation, the governor may revoke or “modify” these EOs but only where he would be effectuating “less restrictive measures.” Also, and as will be discussed below, the Legislation will not end the “state of emergency” declared by the governor by way of EO 103 pursuant to the New Jersey Civilian Defense and Disaster Control Act.

Land use attorneys should be aware that certain administrative orders, directives and waivers issued by state agencies that will continue forward—at least for the near future. The Legislation keeps in force, until January 11, 2022, any state agency’s “administrative order, directive, or waiver” that relied upon the existence of the public health emergency. For example, the New Jersey Department of Environmental Protection (NJDEP) suspended certain technical requirements and waived deadlines for a number of permitted areas. These suspensions and waivers will expire on Jan. 11, 2022. However, per the Legislation, the governor may request, and the legislature may grant by way of concurrent resolution, a 90-day extension for any such “administrative order, directive, or waiver.”

Furthermore, now that the public health emergency has expired, it will be necessary to calculate the expiration date for certain permits tolled for the last 15 months pursuant to the Permit Extension Act of 2020, P.L. 2020, c. 53 (PEA). The PEA, and its requisite NJDEP notice (52 N.J.R. 1682(b)), provides that the term of certain state and local approvals in existence on March 9, 2020, that have been registered with the NJDEP by Oct. 8, 2020, would be tolled during the “COVID-19 Extension Period.” The PEA defined the “COVID-19 Extension Period” as “the period beginning on March 9, 2020, and continuing for as long as the public health emergency … that has been declared by the Governor in response to COVID-19, is in effect.” As a result of the governor’s issuance of EO 244, the COVID-19 Extension Period ended on June 4, 2021.

The PEA provides that all approvals tolled by the law “shall extend the government approval at least six months beyond the conclusion of the COVID-19 Extension Period means that where an approval had less than six months to run on March 9, 2020, the approval’s term would be extended and expire six months after June 4, 2021, or December 5, 2021.
The PEA also relaxed the deadlines for certain municipal actions under the Municipal Land Use Law (MLUL), including completeness determinations and taking formal action on certain applications. These “relaxed” deadlines expired on June 4, 2021.

Land use attorneys should also think about virtual hearings. While there are some practitioners who believe virtual land use hearings may be possible under other laws and practiced after the COVID-19 emergency, that is a topic for another day because a “state of emergency” still exists under the Legislation and EO 244. Thus, the applicable “emergency” authorization is still effective—at least for now.

Pursuant to P.L. 2020, c. 34, the New Jersey Department of Community Affairs (NJDCA) adopted regulations governing virtual public meetings during the COVID-19 emergency. N.J.A.C. 5:39-1.3 et seq. The regulations, which clarify notice and technology requirements, etc., provide, at N.J.A.C. 5:39-1.3(a), that:
In addition to any circumstances on which public meetings held by means of communications equipment may be authorized pursuant to the Open Public Meetings A N.J.S.A. 10:4-1 et seq., a local public body may hold a remote public meeting to conduct public business during a declared emergency [defined as a public health emergency or state of emergency] if the emergency reasonably prevents a local public body from safely conducting public business at a physical location with members of the public present.

As set forth above, a “state of emergency” continues, notwithstanding the end of the public health emergency. Consequently, a public body could hold an in-person meet it feels that such a meeting can be “safely conduct[ed] … with members of the public present.” Conversely, if a public body felt that it could not conduct such a meeting “s N.J.A.C. 5:39-1 et seq. would authorize the continued use of virtual meetings until the governor ends the current state of emergency.

The Legislation ends most of the COVID-19 era restrictions on accessing public records. Last year, the legislature adopted P.L. 2020, c.10 (“Chapter 10”), a law which amended the Open Public Records Act (OPRA) to provide that:
[D]uring a period declared pursuant to the laws of this State as a state of emergency, public health emergency, or state of local disaster emergency, the deadlines by which to respond to [an OPRA] request … shall not apply, provided, however that the custodian of a government record shall make a reasonable effort, as the circumstances permit, to respond to a request for access … within seven business days or as soon as possible thereafter.

The Legislation, with certain exceptions related to COVID-19 information, supersedes Chapter 10 upon the effective date of the law (June 4, 2021), and reinstates the normal response requirements under OPRA, i.e., a records request must be fulfilled, in most instances, within seven business days.

As we look forward to the end of the COVID-19 emergency, land use practitioners have a lot to think about. As the various laws, regulations and orders unwind, there will be a need to understand how applications and approvals will make the leap to a post COVID-19 emergency world. These changes may cause some headaches in the beginning. Ultimately, I am sure that the land use bar will get vaccinated to the “new” normal.

Edward W. Purcell is an associate with Price, Meese, Shulman & D’Arminio, PC, in Morristown. He concentrates his practice in the areas of land use, planning and telecommunications law. He has represented both public and private clients and is knowledgeable in all areas of local, state, and federal zoning law.

Reprinted with permission from the June 23, 2021 issue of the New Jersey Law Journal. Further duplication without permission is prohibited. All rights reserved. © 2021 ALM Media Properties, LLC.