Agenda - Planning Commission - 09/06/2018

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Zoning Bulletin August 10, 2018 I Volume 12 I Issue 15 Harz did not appeal that final permit. However, in August 2011, Harz filed a federal and state civil rights action against the Borough and the initial zoning of- ficer (hereinafter, collectively the `Borough"). Among other things, Harz brought a claim under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, alleging that the Borough violated her substantive rights under the New Jersey Constitu- tion and New Jersey's Municipal Land Use Law (the "MLUL"). Essentially, Harz complained that she had a right to a hearing on her appeal, and that right was violated, causing her to expend substantial funds to retain an attorney and other licensed professionals in battling the improperly issued zoning permits. Finding no material issues of fact in dispute, and deciding the matter on the law alone, the trial court issued summary judgment in favor of the Borough and dismissed Harz's complaint. With regard to Harz's civil rights claim, the trial court concluded that the MLUL only established a "right to be heard," and not a "right to a hearing." The court found that Harz was "heard" by filing her appeals, and therefore concluded that her rights were not violated. Harz appealed. Disagreeing with the trial court, the Appellate Division found that, under the MLUL—N.J.S.A. 40:55D-72—Harz had a substantive right to appeal the issuance of the permits, which the Borough violated when the zoning officer failed to transmit her initial appeal to the Planning Board and when the Borough cancelled the hearing on the appeal of the Second Permit. The Appel- late Division essentially concluded that Harz's action in getting a temporary restraining order on construction from the trial court "was the means by which Harz vindicated her substantive right to secure the `[Planning B]oard's review of an alleged zoning violation.' " The Borough petitioned for certification, challenging the reinstatement of Harz's state civil rights claim. The Borough argued that N.J.S.A. 40:55D-72 does not confer on an "interested party," such as Harz, the "right to a board hear- ing" on an appeal challenging the issuance of a zoning permit and therefore the Appellate Division erred in finding the violation of a cognizable substantive right under the Civil Rights Act. Alternatively, the Borough argued that, even as- suming that the statute conferred a right to appeal to a Board, Harz "received relief under the statute because the appealed zoning permits issued to her neighbors were either withdrawn (after Harz's first Notice of Appeal) or rescinded (after Harz's second Notice of Appeal)" —thus rendering moot Harz's appeals to the Board. The Supreme Court of New Jersey granted the Borough's petition. DECISION: Judgment of Appellate Division reversed. The Supreme Court of New Jersey held that Harz did have a substantive right to be heard pursuant to the MLUL. However, the court concluded that "the Borough did not violate a substantive right as envisaged under [New Jersey's] Civil Rights Act." The court explained that New Jersey's Civil Rights Act —subsection (c) of N.J.S.A. 10:6-2—provides in part: "Any person who has been deprived of .. . any substantive rights, privileges or immunities secured by the Constitution or laws of this State, . . . by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief." (N.J.S.A. 10:6-2(c).) The court noted that the prevailing party in a private cause of action under the Civil Rights Act may also receive "reasonable attorney's fees and costs." (N.J.S.A. 10:6-2(f).) © 2018 Thomson Reuters 7