January 29, 2018
certification to the Superior Court, Appellate Division.
L. LaSalle argued the cause for appellants (Cleary Giacobbe
Alfieri Jacobs, attorneys; Paul L. LaSalle, on the briefs).
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).
J., writing for the Court.
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
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).
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.
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.
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.
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
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
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).
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.
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)
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)
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)
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)
JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
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.
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).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.
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
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.
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.
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.
we reverse the judgment of the Appellate Division and dismiss
Harz's civil rights claim.
understand the facts presented and issues raised in this
case, we begin with a brief primer on the relevant MLUL
provisions governing this case.
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 ...