Basics of Public Hearing Notice
The public hearing notice requirement has been a hallmark of many public participation statutes for some time. The notice requirement represents an important underlying principal for these acts – namely, to ensure timely and fair notice of governmental decisions, and to provide an opportunity for affected citizens to be heard. Those principles reflect the belief that governmental discretion should be exercised only subject to fundamental fairness. In this context , timely means notice must be provided far ahead of time to allow citizens an opportunity to be heard, and to ensure fair notice means that that the notice must be adequate to alert all relevant government agencies, citizens, and other stakeholders of their opportunity to be heard about the proposed action.
Legal Requirements for Notices
Public hearing notice requirements are governed by legal standards, both federal and state and often local, which dictate how notices of public hearings must be disseminated by public entities, such as municipalities, authorities, agencies, quasi-governmental entities, and even nonpublic entities that receive or continue to receive public funding. In addition, entities seeking to challenge public entities’ issuance of permits and the conduct of public hearings and comment periods are also governed by these requirements, as failure to comply with these standards may serve as a basis for subsequently overturning a permit approval or order. The law applicable to public hearing notice requirements in New Jersey is a mosaic of statutory requirements, relevant case law, and legally-accepted best practices.
The federal Clean Water Act ("CWA"), specifically 33 U.S.C. §1251 et seq., requires public notice of both draft permits and all significant decisions and actions (including public hearings). 40 C.F.R. §135.12(a). Such notice must inform the public of the nature of the proposed action, the "time limits" for comment, and the address where comments may actually be submitted. Notice of draft permits must also include a list of information that the public must submit with its comments, if it wants an evidentiary hearing or the ability to cross-examine officials at a scheduled hearing during the permit appeal period.
Other federal statutes contain similar requirements, each calling for notice of the proposed project with sufficient detail and/or other information to alert interested parties of the project at issue. For example, the National Historic Preservation Act ("NHPA"), 16 U.S.C. §470 et seq. requires publication at the local level of a statewide programmatic agreement concerning the effect of transportation projects on federally recognized historic properties, protecting edible wildlife, and funded through the U.S. Department of Transportation. Additionally, the NHPA requires NEPA review for other federally-funded or federally-approved projects that may have a significant impact on historic, cultural, or natural resources. While the CWA only requires public notice of draft permits and significant decisions and actions, the NHPA regulations extend that requirement to include "notices [that are] of a scope necessary to satisfy the [NHPA] and its regulations," thus, making it so that federal agencies have discretion over the type and level of notice required, including whether a public hearing is necessary.
Many of the same legal requirements for public hearing notification require the posting of notice concerning the filing of applications for development on property. N.J.S.A. §40:55D-12. Examples of important information that must be included with such notice includes: the date of filing of the application, the names and addresses of the applicant(s) and of the holders of any mortgages on the property, the nature of the application, and the location of the property by block and lot numbers.
In addition to the notice requirements set forth in the NJDEP’s administrative code, the NJDEP’s Technical Manual on the Inland Licensing Process includes guidelines for notification regarding applications for new and renewal water nuisance permits and for water quality certification requests for Federal projects. The manual contains important details regarding how and when to provide notification and may be consulted for guidance, particularly when public hearings will be held in the vicinity of the project.
There are several main points to remember regarding public hearing notice requirements in New Jersey: Public hearing notice requirements vary from community to community and project to project, and vary depending on whether or not the entity whose notice you are reviewing is a public entity or a private entity. Public participation is a vital segment of the public hearing process, and one of the ways the public can participate in the hearing is through the review and comment on the proposed project at issue. Reading the legal requirements contained in the enabling statute and regulations and determining the notice requirements becomes one of the most important steps in reviewing a public hearing notice, as it will ensure that the notice complies with all of the legal requirements.
Elements of a Public Hearing Notice
The components of a public hearing notice vary depending on the board or commission involved. There is, however, a list of basic elements that are common across the board. Section 200-401(b) of the Commissioner’s Regulations sets out the minimum requirements for a meeting notice. The regulations require that the chairperson or designee shall give reasonable notice of the time and place of any regular meeting, and of the time, place and purpose of any special meeting, to each person who has requested to receive notice of meetings and to any news media which have requested notice.
For the purpose of this post, the term "regular meeting" refers to meetings that take place on a regular schedule, such as once per month; and the term "special meeting" refers to a meeting called in response to a request or need that arises outside the regular meeting schedule and where the timing of the meeting is not set on a predicable schedule ("emergency meeting" is a type of special meeting). With that distinction in mind, the following components – which are discussed below – are essential to a public hearing notice: (i) the date, time, and location of the meeting (including the specific address of the meeting), (ii) the subject matter, and (iii) the name of a contact person able to answer questions about the meeting. The notice requirements for the public hearing in a public hearing for a Special Use Permit or Site Plan Approval are a bit more elaborate and include the following elements:
Techniques for Issuing Public Hearing Notices
Once the public hearing notice has been determined, it can be disseminated using a variety of methods. Newspapers are a common means; a newspaper of general circulation may be fine, but in some cases, the law requires more specific (i.e., local) newspapers. In addition, newspapers of adjoining municipalities are frequently used. An advertisement may also be placed in a Community Board newsletter or publication. Nowadays, the internet continues to gain prominence as a means of disseminating public hearing notices. All of the boroughs spotlight such notices on their websites, including Kings County, which has its own website devoted to the Army Corps of Engineers. These methods will suffice if the goal is to inform interested persons, but that does not always include other government agencies. Many government agencies maintain a legitimate interest in some activities of other entities, and it is not uncommon for governmental agencies to have other requirements for notice.
Common Issues and Compliance Concerns
Public agencies often face challenges and compliance issues with the public hearing notice requirements by, and for, the CEQA process. There tends to be a common confusion with what is meant by "required newspaper" and the impacts of that distinction. The conflict among the "newspaper" authorities is summarized below.
However, this description is incomplete and misleading. In a practical sense, the only place in the Act where the statute calls for publication of a "newspaper of general circulation" is for those notices required to be published in a county or city newspaper (CEQA Guidelines § 15087(a)(1) & (3)). This sometimes leads to the perception that any newspaper called a "newspaper of general circulation" can be used for CEQA notice, including in connection with Planning and Zoning Law notices. However, the cited sections of the Government Code, and the statutory authority for some various notices of local agency laws, are not limited to CEQA notices. In fact, there is no one definitive definition of a "newspaper of general circulation." While definition sections of various statutes define "newspaper," but not "newspaper of general circulation," the Supreme Court has held that "there is no reason to believe that the definition of a ‘newspaper’ contained in [the definition section] differs from that of its counterpart in the newspaper zoning statute." (Desmond v. County of Contra Costa (1989) 217 CA3d 864, 865.) The law under the Planning and Zoning law provides that a "newspaper" is "a newspaper published weekly or more frequently that is published for the dissemination of local or telegraphic news and opinion of general interest and which has been established for a period of 12 months prior to such publication…," but includes a "newspaper" not published in the locating jurisdiction, if it has a certain circulation. (Government Code § 6000(b)(2).) CEQA also has a similar provision allowing notice in a "newspaper published in a county" – leading to the general misunderstanding that "any" newspaper put out in the county has equal utility as the only requirement for a newspaper of general circulation .
Unfortunately, this interpretation would often lead to confusion and inefficiency, because, in addition to CEQA and the Planning and Zoning Law, there are many local laws requiring the publishing in "newspapers of general circulation." Local jurisdictions have adopted local laws relating to CEQA, zoning, and other land use laws, that require the notices for those actions to be published in "newspapers of general circulation." CEQA also is often the agency’s "go-to" for publication of other notices – such as environmental notifications or notices of preparation and other required notices of local agency actions. CEQA makes little attempt to detail where other notices may be published in such a situation – generally just saying "[w]hich other law applies." (Pub. Res. Code § 21092.3.)
The CEQA Guidelines provide additional detail on how publication of a "newspaper of general circulation" is to be determined – but also add to the confusion. The Guidelines detail an extensive set of circumstances which are to be utilized to determine whether a paper is a "newspaper of general circulation." The Guidelines refer to "newspapers of general circulation" as "newspapers" and then provide a list of criteria for determining whether a newspaper is a "newspaper of general circulation." In light of the many circumstances which need to be considered and consulted for a properly defined "newspaper of general circulation," it would appear that often a specific legal analysis would be required. Unfortunately, local jurisdictions apparently are not spending much time calculating or analyzing the criteria contained in the Guidelines. As a matter of consequence, the term is regularly being misused or used indiscriminately, leading to confusion and the potential for miscalculation and mistakes.
In the end, agencies are left wondering what is meant by the phrase, and what circumstances are "acceptable." The overuse of "newspaper of general circulation," may lead to unnecessary notice costs, duplication, delays, and potentially invalidce notice.
Best Practices for Notice Issuance
So how do agencies ensure effective issuance of publication hearing notices? Following are some best practices for tailoring notices to a particular project. Remember, crafting an effective notice is a little art and a little science.
When?
Issuance Timing. Generally, an agency must issue the notice so that recipients have at least 10 days’ notice. Given the nature of mail flow and the related processing delays, practitioners recommend issuing the notice at least 4 weeks prior to an application deadline for complete applications or, if a public hearing is required, at least four weeks before the hearing. With the 2007 amendments, the 14-day notice prior to a hearing or a decision on the application has been changed to "at least 10 days prior to the hearing…" (just like the notices for land use decisions). So, PCI recommends issuing the notice at least two weeks prior to the hearing.
Where?
Accessible Locations. Keep in mind that the goal of providing notice is to let people know about the project. Simply providing a notice at a particular site may not be enough. An agency must consider if the notice will get to the "hearing public."
Who?
Engaging the Community. The key to effective dissemination is to consider who will be interested in the project and how notice can be provided to them. It will be essential for an agency to provide notice to the applicant and interested persons that have requested notice. Also consider other ways to extend the notice, like posting the notice on the agency’s website and posting in community centers and libraries. A newspaper may not be the best place for notice anymore given the internet, but it still might be good to send an e-mail to all media outlets.
Case Studies of the Effects of a Public Hearing Notice
Public hearing notices can have a big (and costly) impact on whether you meet the requirements for approval of a supplemental environmental impact statement ("SEIR"). I recently encountered two cases where public hearing notices were crucial to the decision making process. The first case study pertains to the Fallbrook Seismic Upgrade Project SEIR. The District’s Board of Directors held two public hearings on March 26 and April 8, 2014, relative to the 10,000 gallon Fallbrook Seismic Upgrade Project (the "Project") located at 5030 Autumn Street in San Diego. It appears that the District did not comply with CEQA’s public notice requirements; however, no one challenged the adequacy of public notice of either public hearing. On May 27, 2015, the District’s Board of Directors approved the final SEIR and adopted a resolution, including Findings of Fact and a Statement of Overriding Considerations. The District’s Board of Directors held two public hearings: one on the SEIR and one on the underlying Final Project, respectively. The District claims it complied with CEQA Guidelines Section 15105, which requires a notice of the draft EIR to be (1) filed with the clerk of the governing body, and (2) sent to all public agencies or private organizations that have requested placement on the contact list for the project (i.e., CEQA Guidelines Section 15087). The Fallbrook Seismic Upgrade Project SEIR adopted by the District Board on May 27, 2015, stated the following "Specific Comments and Responses" to "Comments B-2 and B-3": November 21, 2014 served as the Notice of Preparation of an SEIR on the Project. The Notice of Preparation was published in accordance with CEQA Guidelines § 15082. A copy of the September 11, 2014 Notice of Preparation is included in Appendix D of the SEIR . That notice provided information to the public that the San Diego County Regional Airport Authority (SDCRAA) was actively evaluating comments and public input regarding the scope and content of the SEIR. In addition to the NOP, two public scoping meetings were held on September 30 and October 2, 2014, prior to the release of the SEIR […]. Although no stakeholder challenged public notice of the SEIR (which is a separate notice from the notice of the underlying Final Project), it appears that the District did not comply with CEQA’s public notice requirement, and that this may have changed the outcome of whether the project was approved. The second case study relates to a very land used for a new parking lot and access road to support several pre-existing businesses located within a Specific Plan Area within the san Diego community of Carmel Valley (the "Carmel Valley Business Park Project"). This project was the subject of a SEIR certified by the City of San Diego on November 25, 2014. Judith Jacobs opposed this project and claimed that the project was not compliant with the notice requirements for both the Notice of Preparation ("NOP") under CEQA Guidelines Section 15161, and the Draft SEIR under CEQA Guidelines section 15105. The Fourth Appellate District affirmed the trial court, finding that public notice was adequate to comply with CEQA Guidelines Sections 15082 and 15105, and that substantial evidence supported the City’s findings that factors alleviating environmental concern did exist. This case is important precedent in determining what qualifies as adequate notice under CEQA, including specific findings of significance and elements which, if present, would alleviate the environmental issues raised by the "Fair Argument" test.