By Jodi S. Howlett, Esq., Nicholas DelGaudio, Esq., Emily Entwistle, Intern

     On June 26, 2018, Cleary Giacobbe Alfieri Jacobs, LLC secured a victory from the New Jersey Supreme Court on behalf of the Borough of Spring Lake (“Borough”).  The Supreme Court considered the issue of whether a homeowner who challenges the issuance of a zoning permit allowing construction on a neighboring property has a statutory right to be heard before a municipality’s Planning Board, and if so, whether the violation of that right gives rise to an action under the New Jersey Civil Rights Act.  A resident of the Borough, Mary 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 in contravention of New Jersey’s Municipal Land Use Law (“MLUL”).

     After Harz’s neighbor was issued a zoning permit, Harz objected but did not receive a hearing because the zoning officer informed the neighbor that the current permit was no longer operative.  Similarly, after a revised second permit was issued, Harz objected and a hearing before the Planning Board was scheduled.  This hearing was only cancelled because the second permit was repealed due to Harz’s objections prior to the hearing.  When a third permit was issued, Harz did not appeal to the Planning Board but instead filed an action in Superior Court for a restraining order enjoining the construction from starting.  After filing this court action, she then filed an appeal with the zoning officer and received a three-day hearing in front of the Planning Board, which ruled, in large measure, in favor of Harz.

     Harz subsequently brought suit against the Borough in Superior Court, claiming that she was denied her right to be heard before the Planning Board in contravention of New Jersey’s Municipal Land Use Law (“MLUL”) and the New Jersey Civil Rights Act.  After the trial court granted the Borough’s motion for summary judgment and dismissed Harz’s civil rights claim, the Appellate Division reversed and concluded that the Borough violated her substantive right of “obtaining a board’s review of an alleged zoning violation.”

     This firm, on behalf of the Borough, appealed the decision to the Supreme Court.  The Supreme Court acknowledged that the resident had a substantive right to be heard before the Planning Board on her appeal from the issuance of a zoning permit to her neighbor as an “interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the zoning ordinance.” N.J.S.A. 40:55D-72(a).

     However, the Supreme Court found that, in this case, the resident had not established that the Borough denied her this substantive right.  While Harz did not receive a hearing after she objected to the first two permits, she was not adversely affected because the permits were repealed.  When the third permit was issued, Harz filed for a restraining order in Superior Court rather than only filing an appeal with the Planning Board.  The Supreme Court ruled that Harz did not exhaust the statutory process for securing her right to be heard and had not reached a dead end in her efforts to be heard before the Planning Board before she filed for the restraining order in Superior Court.  Unlike in Tumpson v. Farina, 218 N.J. 477 (2014), where all efforts to be heard were exhausted, the Court found that Harz had not run out of administrative options.  In fact, Harz was provided with a hearing before the Board after filing an appeal in the ordinary course under the MLUL and the Board ruled, in large measure, in favor of Harz.  Thus, she could not demonstrate that she was deprived of a substantive right protected by the Civil Rights Act and her claims were dismissed.

     Following the Supreme Court’s decision, Harz filed a Motion for Reconsideration.  The Motion was denied by Order of the Court on September 20, 2018.

Cleary Giacobbe Alfieri Jacobs, LLC represented the Borough throughout this appeal.