Agenda - Planning Commission - 09/06/2018

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August 10, 2018 I Volume 12 I Issue 15 Zonino Bulletin The court further explained that identifying whether a claimed right is a "substantive right" protected under the state's Civil Rights Act involves a multi- step test under which the court must determine: "(1) whether, by enacting the statute, the Legislature intended to confer a right on an individual" . . . ; (2) whether the right "is not so `vague and amorphous' that its enforcement would strain judicial competence," .. . ; and (3) whether the statute "unambiguously impose[s] a binding obligation on the [governmental entity]" ; and (4) whether the "right is substantive, not procedural." With regard to differentiating "substan- tive" from "procedural" rights, the court noted that "a substantive right is `[a] right that can be protected or enforced by law; a right of substance rather than form.' " Here, the court found that the nature of the substantive right at issue —a prop- erty right —was "clearly identifiable," and that Harz had a right to have her prop- erty concerns "heard in some form." Looking at the MLUL, the court found that it "clearly" conferred on Harz a right to be heard before the Planning Board. Finding "an interested party's right to be heard is inextricably tied to a party's property rights," the court found that the MLUL right to be heard was "substan- tive, not procedural." Although the court found that Harz had a substantive right to be heard by the Board, the court also found that the zoning officer's failure to transmit Harz's initial appeal to the Planning Board and the Borough's cancellation of the hear- ing on the appeal of the Second Permit "did not deprive Harz of a substantive right because she suffered no adverseness." The court cited the effective ceasing of construction on Carter's property after Harz's initial appeal as reason that Harz "suffered no adverseness to any property right she possessed." Moreover, the court found that nothing in the record suggested that if Harz had not filed her action with the trial court for the temporary restraining order, the Planning Board would have denied her a hearing. Thus, the court concluded that, for the purposes of the state Civil Rights Act, Harz did not exhaust the statutory process for secur- ing her right to be heard under the MLUL. Having found that Harz failed to prove that the Borough deprived her of the right to be heard, the court concluded that Harz's civil rights claim must be dismissed. See also: Tumpson v. Farina, 218 N.J. 450, 95 A.3d 210 (2014). Case Note: In its decision, the court acknowledged that if the zoning officer had permitted construc- tion to proceed on Carter's property and blocked Harz's ability to appeal and be heard by the Board, that scenario may have been a violation of Harz's substantive property right and a Civil Rights Act violation. 8 © 2018 Thomson Reuters