No “Dead End” for New Jersey Civil Rights Act Plaintiff, So Her NJCRA Claim Fails

Harz v. Borough of Spring Lake, 234 N.J. 317 (2018).  The New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (“NJCRA”) is, in general, the New Jersey analog to the federal Civil Rights Act, 42 U.S.C. §1983.  In Tumpson v. Farina, 218 N.J. 450 (2014), a referendum case that was discussed here, the Supreme Court found a violation of the NJCRA and awarded attorneys’ fees to the plaintiffs.  [Disclosure:  My firm, Lite DePalma Greenberg, LLC, represented the defendants in that matter].  Today, the Court faced another NJCRA case and, distinguishing Tumpson, rejected the NJCRA claim.

Today’s case was a municipal land use matter.  Plaintiff objected to the issuance of a building permit that allowed her neighbor to construct a two and one-half story house, which she believed would violate the local height ordinance.  Seeking to appeal the issuance of the building permit to the defendant Planning Board, as permitted by the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (“MLUL”), she asked the zoning officer to transmit to the Board “all the papers constituting the record,” per N.J.S.A. 40:55D-72(a).  The zoning officer did not do that.  Instead, he requested that the neighbor revise the plans.  Construction thus ceased.

When the neighbor submitted revised plans and received an amended building permit, plaintiff again sought to appeal.  This time, the zoning officer transmitted the record to the Board.  A hearing before the Board was scheduled, but on the day of the hearing, the Board’s engineer notified the Board and the parties that the revised plans did not conform with the land use ordinance.  The Board cancelled the hearing and the xoning officer issued a stop work order and rescinded the amended building permit.

The neighbor again submitted revised plans, and the zoning officer then issued a third building permit.  This time, plaintiff filed an action in lieu of prerogative writ in the Law Division, contending that the plans violated the ordinance and required variances.  The Law Division temporarily restrained construction.  Plaintiff then appealed the building permit to the Board, which ruled, after a three-day hearing, that the neighbor’s plan violated the height limitation of the zoning ordinance.  The Board rescinded the building permit until the neighbor met appropriate conditions.  Once that happened, the zoning officer issued a final building permit, and plaintiff did not contest it.

However, plaintiff then brought this action against the Borough and the zoning officer under 42 U.S.C. §1983 and the NJCRA.  She contended that she had been forced to incur significant attorneys’ fees to vindicate her rights because she was denied the hearing at the Board to which the MLUL entitled her.  The Law Division granted summary judgment in favor of defendants, and the Law Division affirmed, except as to the NJCRA claim against the Borough.  The Court granted the Borough’s petition for certification and, applying the de novo standard of review, today reversed and reinstated the Law Division’s ruling in favor of the Borough.  Justice Albin, who had written the majority opinion in Tumpson, also authored today’s opinion.

There were two issues: (1) whether plaintiff had an “unambiguously conferred right” to a Board hearing and, if so, (2) whether she was unlawfully deprived of that right.  Justice Albin found that plaintiff had a right protected by the NJCRA, but that there was no violation of that statute.

On the first issue, the Court modified the three-part test for the existence of a protected NJCRA right that Tumpson had established.  That case had described the first step as whether the Legislature “intended the statute” to confer a “benefit” on an individual.  Looking to a 2002 ruling of the Supreme Court of the United States in a §1983 case, today’s decision requires a “right,” not merely a “benefit.”  It is not clear how significant a change that is, but that is now the law.  The other two steps remain that the right is “not so vague and amorphous that its enforcement would strain judicial competence,” and that the statute “unambiguously imposes a binding obligation” on the governmental entity.  The right must also be substantive rather than procedural.

The MLUL “clearly conferred on Harz a right to be heard by the Planning Board on her appeal from the issuance of the zoning permit to her neighbor.”  That right was “not amorphous but rather self-evident,” and the MLUL unambiguously imposed that right as a binding obligation.  Finally, the right was substantive since it was “inextricably tied to a party’s property rights.”

But the Court held that the Borough had not violated that right “as envisaged under the [NJCRA].”  The zoning officer did the wrong thing in not transmitting the record to the Board after issuing the original building permit.  But that did not deprive plaintiff of a substantive right because “she suffered no adverseness.”  The zoning officer told the neighbor that the permit was no longer operative and that revised plans were required.  Construction thus stopped.  “The Borough was responding to Harz, even if not to her full satisfaction.”

Similarly, the cancellation of the Board hearing on the second permit did not violate the NJCRA.  The second permit was likewise rescinded based on plaintiff’s objections, so again there was “no adverseness to any property right she possessed.”

Finally, the Board held a hearing on the third permit and largely upheld plaintiff’s objection to the neighbor’s proposed construction.  Plaintiff claimed that the only reason the Board did that was because she had sued and won temporary restraints.  But Justice Albin found no basis to believe that the Board would not have conducted a hearing absent the lawsuit.  “For purposes of the [NJCRA], Harz did not exhaust the statutory process for securing her right to be heard under the MLUL.”

Justice Albin distinguished Tumpson, where the plaintiffs had reached a “dead end” in trying to assert their referendum rights.  Here, plaintiff did not reach a “dead end.”  She got what she wanted from the Borough, though perhaps not in the way that she wanted.