191 A.3d 547
N.J.2018Background
- Mary Harz, owner of property adjacent to Thomas Carter, challenged zoning permits issued for Carter's house, alleging they violated Spring Lake's land-use ordinance.
- Harz first learned of construction after work began; her attorney sent a Notice of Appeal to the zoning officer asserting ordinance violations and requesting transmission of the record to the Planning Board.
- The zoning officer initially did not transmit the record but sought revised plans; construction paused, then an amended permit (Second Permit) was issued and Harz again appealed; the Board scheduled a hearing that was later cancelled after the permit was rescinded and a stop-work order issued.
- A subsequent (Third) permit issued; Harz filed a Superior Court action (prerogative writs/Order to Show Cause) securing temporary restraints on construction, then appealed to the Planning Board and obtained a three-day hearing and a Resolution rescinding the permit in part.
- Harz sued under the New Jersey Civil Rights Act (N.J.S.A. 10:6-1 to -2), alleging the Borough and zoning officer deprived her of a substantive statutory right to be heard before the Planning Board; the trial court granted summary judgment for defendants, the Appellate Division reinstated the NJCRA claim, and the Supreme Court granted certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MLUL confers a substantive individual right to be heard by the board on appeals from a zoning officer | Harz: §72(a), §70(a), and §73(a) together unambiguously confer a substantive right to a hearing and decision by the board | Borough: §72(a) is a procedural, discretionary appeal mechanism and does not create a privately enforceable right to a board hearing | Held: MLUL confers a substantive right to be heard and to board review/decision, rooted in property interests, meeting Blessing/Gonzaga/Tumpson factors |
| Whether a statutory violation of MLUL procedural requirements can support an NJCRA claim | Harz: failure to transmit the appeal and cancellation of hearings deprived her of the substantive right enforceable under NJCRA | Borough: zoning officer’s delay/non-transmission was at most procedural; permits were withdrawn or rescinded, so Harz suffered no substantive deprivation | Held: Although MLUL rights are substantive, the record does not show Harz was deprived of that right here; procedural lapses did not amount to a substantive violation under NJCRA |
| Whether Harz’s Superior Court prerogative-writs action was required or was the catalyst for Board action | Harz: Superior Court action was necessary to vindicate her MLUL right and was the catalyst for the Board hearing | Borough: Board acted in ordinary course; judicial action was not the only or required means and did not prove deprivation | Held: Harz did not show the Board would have refused to hear her—she did not reach a dead end; prerogative writs were not shown to be compelled to obtain relief |
| Whether plaintiff exhausted administrative remedies and reached a ‘dead end’ justifying NJCRA relief | Harz: administrative process was thwarted by officer’s failure to transmit and by cancelled hearings | Borough: Harz ultimately obtained Board review; record shows no futility or final administrative bar | Held: Harz failed to show exhaustion was futile or that she reached a dead end; lack of exhaustion undermines NJCRA claim |
Key Cases Cited
- Tumpson v. Farina, 218 N.J. 450 (N.J. 2014) (applied Blessing factors to find a statutory right of referendum enforceable under state Civil Rights Act)
- Blessing v. Freestone, 520 U.S. 329 (U.S. 1997) (three-factor test for statutory rights under §1983)
- Gonzaga Univ. v. Doe, 536 U.S. 273 (U.S. 2002) (private cause of action requires statute to unambiguously confer individual rights)
- Monell v. Department of Social Services, 436 U.S. 658 (U.S. 1978) (municipal liability requires government policy or custom)
- Trenkamp v. Township of Burlington, 170 N.J. Super. 251 (N.J. Super. Ct. Law Div.) (limitations period for interested party appeals runs from knowledge of permit issuance)
- Sitkowski v. Zoning Bd. of Adjustment of Lavallette, 238 N.J. Super. 255 (N.J. Super. Ct. App. Div.) (time to appeal runs from when party knew or should have known of permit)