Harz v. Borough of Spring Lake

191 A.3d 547, 234 N.J. 317
CourtSupreme Court of New Jersey
DecidedJune 26, 2018
DocketA–48 September Term 2016; 078711
StatusPublished
Cited by40 cases

This text of 191 A.3d 547 (Harz v. Borough of Spring Lake) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harz v. Borough of Spring Lake, 191 A.3d 547, 234 N.J. 317 (N.J. 2018).

Opinion

JUSTICE ALBIN delivered the opinion of the Court.

**319In 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 **320N.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 *549MLUL 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.

**321Accordingly, 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 applicant's intended plans for the property are permissible under both the zoning laws of the municipality and the MLUL. Id. § 2.8 at 16-17.

N.J.S.A. 40:55D-70(a) empowers the board of adjustment to "[h]ear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative officer based on or made in the enforcement of the zoning ordinance." Section 70(a) permits appeals to a board of adjustment not only by property owners who are denied zoning permits to build on their property, but also those who are aggrieved by the issuance of such permits. See Cox & Koenig § 26-1.1 at 559.

To that end, N.J.S.A. 40:55D-72(a) specifically provides that "[a]ppeals to the board of adjustment may be taken by any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the zoning ordinance." (emphasis added). The MLUL broadly defines an "interested party" as "any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under **322[the MLUL]," "in an administrative proceeding before a municipal agency." N.J.S.A. 40:55D-4 (emphasis added). An interested party clearly includes a neighbor who is affected "by the grant of a building permit that will result in a structure [on adjacent property] that violates the zoning ordinance." Cox & Koenig § 26-1.1 at 559.

N.J.S.A. 40:55D-72(a) also sets forth the timeframe and process for filing an appeal to the board of adjustment and the obligation *550of the administrative officer to transmit the appeal:

Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of such appeal. The officer from whom the appeal is taken shall immediately transmit to the board all the papers constituting the record upon which the action appealed from was taken.

Section 72(a) does not specify the event that triggers the commencement of the twenty-day limitations period. See Trenkamp v. Township of Burlington, 170 N.J. Super. 251, 267, 406 A.2d 218 (Law Div. 1979). In the case of an applicant who receives direct notice of the denial of a zoning permit, the notice appears to be the obvious trigger. However, because no provision requires the administrative officer to notify a nearby property owner about the issuance of a zoning permit, the property owner may not know of the official action until well beyond the twenty-day limitations period. See Cox & Koenig § 26-1.2 at 560. In that circumstance, courts have taken the sensible position that "the time for appeal begins to run from the date an interested person knew or should have known of the permit's issuance." Trenkamp, 170 N.J. Super. at 268,

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Bluebook (online)
191 A.3d 547, 234 N.J. 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harz-v-borough-of-spring-lake-nj-2018.