LAWSUIT ASKS NEW JERSEY APPELLATE DIVISION TO RULE LAKEWOOD TOWNSHIP'S VIRTUAL MEETINGS ARE ILLEGAL

As has been heavily reported recently, numerous members of the public have called on the Lakewood Township Committee to return to in-person meetings, just as virtually every other municipal body in the state has already done post-covid.

Attorney Rob Shea Esq. asserts these virtual meetings are illegal under the New Jersey Open Public Meetings Act.

Ocean County Superior Court Judge Francis Hodgson has previously rejected these arguments.

Undeterred, Mr. Shea is now taking his arguments to the New Jersey Appellate Division in Trenton.

Mr. Shea's just filed appeal brief contends:

The Public Policy which constructed the Open Public Meetings Act ("OPMA") ( as dictated by Governor Byrne during committee meetings) stated, "The [OPMA] makes explicit the legislative intent to ensure the public's right to be present at public meetings and to witness government in action."

The statute is "liberally construed in favor of openness." Burnett v. Gloucester Cty. Bd. of Chosen Freeholders. Additionally, the Appellate Division in 2015 rendered a decision in which technology cannot supplant the strict legislative intent of the OPMA. Due to both Governor's Byrne's Public Policy of Strict Intent, and Opderbeck's ruling that the OPMA does not advance with technological developments, it is clear that OPRA does not permit virtual hearings. 

A4881/S3744 suspended all appeals of Land Use hearing based on the holding of a virtual hearing. However, the law contains specific language limiting its scope to times of emergencies "for a reasonable period of time following cessation of a declared emergency, if so provided by executive order."

Similarly, N.J.A.C. 5:39-1 sets for the regulations governing virtual public meetings, and also limits its own applicability as during a declared emergencv.

The Public Health Emergency brought on by COVID-19 came to an end on March 4, 2022, with the signing of Governor Murphy's Executive Order 292. Furthermore, the various restrictions on public gatherings and mandates regarding masks have all been lifted. As such, there is currently no "emergency" that "reasonably prevents a local public body from safely conducting public business" with "the public present." Thus, the limited situations in which N.J.A.C. 5:39-1 allows for a virtual hearing no longer apply to Lakewood.

In fact, Bill S2603 was reported to the New Jersey Senate on May 18, 2023 for a Second Reading. The bill, which was introduced on May 12, 2022, would "enable public bodies to conduct meetings by electronic means."

The Senate Review Committee made the following finding: 

Under the current law, remote meetings, voting, and public comment are only permitted during a state of emergency, public health emergency, or state of local disaster emergency. This bill removes that restriction. Under the bill, as amended, any meeting conducted by means of communication or other electronic equipment must be open to the public in a manner consistent with N.J.S.A. 10:4-12.

As the Court can see, OPMA, does not permit virtual hearings to take place, outside of the limited exceptions discussed above, and as echoed in the Senate Committee Review. 

********

Mr. Shea's arguments are part of his appeal which seeks to overturn the Township's Ordinance permitting banquet halls in schools in non-residential zones.

The ordinance was adopted at a virtual meeting held on December 8, 2022.

The Township's response to Mr. Shea's arguments are due in court later this month. Oral arguments will be held in the coming months.

To join the FAA News WhatsApp Status, click here.