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Harz v. Borough of Spring Lake

Supreme Court of New Jersey

June 26, 2018

MARY HARZ, Plaintiff-Respondent,
v.
BOROUGH OF SPRING LAKE, a municipal corporation of the State of New Jersey; and PHILIP KAVANAUGH, Defendants-Appellants.

          Argued January 29, 2018

          On certification to the Superior Court, Appellate Division.

          Paul L. LaSalle argued the cause for appellants (Cleary Giacobbe Alfieri Jacobs, attorneys; Paul L. LaSalle, on the briefs).

          Roger J. McLaughlin argued the cause for respondent (McLaughlin, Stauffer & Shaklee, attorneys; Roger J. McLaughlin on the brief, and Jeff Thakker, of counsel and on the brief).

          ALBIN, J., writing for the Court.

         In this appeal, the Court considers whether a homeowner, who challenges the issuance of a zoning permit allowing construction on neighboring property, has a statutory right to be heard before the Borough's Planning Board, and if so, whether the violation of that right gives rise to an action under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2.

         The Municipal Land Use Law (MLUL) provisions applicable here, when viewed in their entirety, clearly indicate that the board of adjustment (or planning board acting as a board of adjustment) must conduct a review of an appeal challenging the issuance of a zoning permit and must render a decision. That much is clear because (1) an "interested party" may appeal a decision of a zoning officer to the board, and the zoning officer must transmit "all the papers constituting the record" of the appeal to the board, N.J.S.A. 40:55D-72(a); (2) the board is empowered to "[h]ear and decide appeals," N.J.S.A. 40:55D-70(a); and (3) the board must "render a decision" within 120 days, N.J.S.A. 40:55D-73(a)(1).

         On December 31, 2009, the Borough of Spring Lake's then zoning officer issued a zoning permit (First Permit) to Thomas Carter to construct a two-and-a-half-story residence. Plaintiff Mary Harz owns adjoining residential property and brought to the attention of the new Borough zoning officer her concern that Carter's foundation exceeded the height permitted by the Borough's zoning ordinance.

         On June 21, 2010, Harz's attorney forwarded a letter to the zoning officer appealing the issuance of the zoning permit and requesting that the zoning officer transmit "the papers constituting the record" to the Planning Board, the body responsible for hearing the appeal. Instead, the zoning officer requested that Carter's engineer and architect revise the proposed construction plans. The zoning officer did not issue a stop work order or rescind the zoning permit, but construction on the project effectively ceased. When Carter submitted revised plans, the zoning officer rejected them. On August 3, 2010, the zoning officer approved a new set of revised plans and issued an amended zoning permit (Second Permit). The next day, Harz's attorney forwarded a letter to the zoning officer appealing from the Second Permit on the ground that Carter's revised plans still violated the height regulations. This time the zoning officer transmitted the appeal to the Planning Board, which scheduled a hearing for the evening of August 11.

          On the day that the hearing was scheduled, the Board's engineer emailed the Board and the parties an opinion letter stating that Carter's construction plans were not in full conformance with the Borough's land-use ordinance. The Borough attorney cancelled the hearing set for that evening, and the zoning officer rescinded the amended zoning permit. The next day, the zoning officer issued a stop work order on Carter's project. Carter submitted revised construction plans, and on September 1, 2010, the zoning officer issued another permit (Third Permit). Harz believed that the revised plans still violated the Borough's land-use ordinance. She filed in Monmouth County Superior Court an action seeking temporary restraints to enjoin the construction project until Carter applied for appropriate variances before the Planning Board. The Superior Court granted relief by entering a temporary restraining order. Harz appealed to the Planning Board through the zoning officer, challenging the issuance of the most recent permit.

         In response to the appeal, the Planning Board conducted a three-day hearing in October and November. On January 12, 2011, the Planning Board passed a Resolution granting in part and denying in part Harz's appeal. The Board agreed with Harz that Carter's plans would have resulted in a three-story home in violation of the ordinance. Accordingly, the Board rescinded the Third Permit until Carter satisfied the conditions set for the construction project. After Carter met those conditions, the zoning officer issued a final zoning permit. No appeal was taken from the issuance of that permit.

         On August 1, 2011, Harz filed a federal and state civil rights action against defendants Borough and Philip Kavanaugh, the initial zoning officer. The nub of Harz's complaint is that she had to expend substantial funds to retain a lawyer and other professionals in battling the improperly issued zoning permits. She alleges that but for the stop-work injunction she secured from the Superior Court, the Borough would have continued to infringe on her right to have the Planning Board hear her appeal from the issuance of the zoning permits.

         The trial court granted the Borough's and Kavanaugh's motion for summary judgment and dismissed the complaint. The Appellate Division affirmed except as to Harz's state civil rights claim against the Borough, which was remanded for further proceedings. The Court granted the Borough's petition for certification. 229 N.J. 591 (2017).

         HELD: The Borough's zoning officer did not adhere to the precise statutory procedures for processing Harz's appeal, and the Court does not take issue with Harz's claims that the Borough could have responded in a more efficient way to her objections. In the end, however, Harz has not established that the Borough denied her the right to be heard before the Planning Board. She therefore cannot demonstrate that she was deprived of a substantive right protected by the Civil Rights Act.

         1. N.J.S.A. 10:6-2(c) provides in part: "Any person who has been deprived of . . . any substantive rights . . . secured by the Constitution or laws of this State, . . . by a person acting under color of law, may bring a civil action." Although the Civil Rights Act does not define substantive rights, the Court has recognized that "the term is broad in its conception," Tumpson v. Farina, 218 N.J. 450, 473 (2014), and has looked to federal jurisprudence construing 42 U.S.C. § 1983 to formulate a workable standard for identifying a substantive right under the Civil Rights Act, id. at 474-77. In doing so, the Court adopted the three-step test set forth in Blessing v. Freestone, 520 U.S. 329, 340-41 (1997), id. at 475, 477, which it now refines in light of Gonzaga University v. Doe, 536 U.S. 273, 283 (2002), for defining when a statute confers an individual substantive right. Under the refined three-step test, a court must determine: (1) whether, by enacting the statute, the Legislature intended to confer a right on an individual, Gonzaga, 536 U.S. at 283-84; (2) whether the right "is not so 'vague and amorphous' that its enforcement would strain judicial competence," Tumpson, 218 N.J. at 475 (quoting Blessing, 520 U.S. at 340-41); and (3) whether the statute "unambiguously impose[s] a binding obligation on the [governmental entity]," ibid. In addition to satisfying those three "factors," for purposes of the New Jersey Civil Rights Act, plaintiffs must also "show that the right is substantive, not procedural." Id. at 478. (pp. 16-22)

         2. In Tumpson, the Court found that the Faulkner Act conferred on the plaintiffs the substantive right of referendum -- the right to place a recently enacted ordinance before the voters for their approval or disapproval. 218 N.J. at 477-78. Given that the Clerk of the City of Hoboken had barred plaintiffs' efforts to realize that substantive right, the only remedy then available was through the court system. Id. at 478. Therefore, under the Civil Rights Act, the plaintiffs were entitled to vindicate the right of referendum. Ibid. (pp. 22-23)

         3. The MLUL clearly conferred on Harz a right to be heard before the Planning Board on her appeal from the issuance of the zoning permit to her neighbor. N.J.S.A. 40:55D-70(a), -72(a), -73(a). The right to a review and decision by the Planning Board under this statutory scheme is not amorphous but rather self-evident. Additionally, the MLUL unambiguously imposes a binding obligation on the Board to provide Harz with the opportunity to be heard. Last, because an interested party's right to be heard is inextricably tied to a party's property rights, the MLUL right to be heard is substantive, not procedural. (pp. 23-25)

         4. However, the Borough never deprived Harz of her right to appeal from an adverse decision of the zoning officer or her right to be heard by the Planning Board. Nothing in the record suggests that had Harz not filed her action in Superior Court, the Planning Board would have denied her a hearing or that the prerogative-writs action was the catalyst for the hearing. For purposes of the Civil Rights Act, Harz did not exhaust the statutory process for securing her right to be heard under the MLUL. This case is unlike Tumpson, where the plaintiffs had exhausted all efforts to have the City Clerk validate their referendum. Harz never reached a dead end in her efforts to be heard, nor is there any evidence that a direct appeal to the Board would have been futile. In fact, in response to her appeal, the Planning Board conducted three days of hearings and ruled, in large measure, in favor of Harz. (pp. 25-28)

         REVERSED.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN's opinion.

          OPINION

          ALBIN, JUSTICE

         In this appeal, we must determine whether a homeowner, who challenges the issuance of a zoning permit allowing construction on neighboring property, has a statutory right to be heard before the Borough's Planning Board, and if so, whether the violation of that right gives rise to an action under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2.

         Plaintiff Mary Harz filed a lawsuit under the Civil Rights Act against defendants Borough of Spring Lake and its zoning officer. Harz claimed that a zoning permit issued to her neighbor for construction of a residence violated the Borough's land-use ordinance and that, when she appealed, she was denied her right to be heard before the Planning Board -- a right required by provisions of the Municipal Land Use Law (MLUL).[1]See N.J.S.A. 40:55D-70; -72(a). In her lawsuit, she contends that the denial of that statutory right contravened a substantive right protected by the Civil Rights Act, entitling her to relief.

         The trial court granted defendants' motion for summary judgment and dismissed Harz's civil rights claim. The Appellate Division reversed, concluding that the Borough violated a substantive right -- Harz's statutory right of "obtaining a board's review of an alleged zoning violation."

         Based on the summary judgment record, we cannot conclude that the Borough denied Harz a substantive right cognizable under the Civil Rights Act. The record does not support a finding that the Borough blocked Harz from eventually securing a timely review by the Planning Board. More specifically, Harz did not exhaust the administrative means available under the MLUL to have her objections heard by the Board.

         Although the Borough's zoning officer did not adhere to the precise statutory procedures for processing Harz's appeal, that deviation ultimately did not infringe on Harz's right to have her objections reviewed by the Board. Further, Harz cannot show that her success in securing a Superior Court order imposing temporary restraints on her neighbor's construction was the catalyst for the Board providing her a three-day hearing. The Planning Board scheduled that hearing after Harz filed an appeal in the ordinary course under the MLUL.

         We do not take issue with Harz's claims that the Borough could have responded in a more efficient way to her objections. In the end, however, Harz has not established that the Borough denied her the right to be heard before the Planning Board. She therefore cannot demonstrate that she was deprived of a substantive right protected by the Civil Rights Act.

         Accordingly, we reverse the judgment of the Appellate Division and dismiss Harz's civil rights claim.

         I.

         To understand the facts presented and issues raised in this case, we begin with a brief primer on the relevant MLUL provisions governing this case.

         The MLUL was "designed to reform the procedures for the planning and regulation of land uses." L. 1975, c. 291; Governor's Statement to S. 3054 (Jan. 14, 1976). Important for our purposes is the process set forth in the MLUL for appealing from decisions of administrative officers, such as a zoning officer. Typically, a zoning officer must issue a zoning permit before a construction official can issue a permit to an applicant seeking to build on a lot. William M. Cox & Stuart R. Koenig, N.J. Zoning & Land Use Administration (Cox & Koenig) § 2.8 at 16 (2018). Before issuing a permit, the zoning officer must first determine that the ...


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