Harz v. Borough of Spring Lake

Annotate this Case

The issue before the New Jersey Supreme Court in this appeal centered on whether a homeowner, who challenged the issuance of a zoning permit allowing construction on neighboring property, had a statutory right to be heard before the Borough’s Planning Board, and if so, whether the violation of that right gave rise to an action under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. In 2009, the Borough of Spring Lake’s then zoning officer issued a zoning permit (First Permit) to Thomas Carter to construct a two-and-a-half-story residence. Plaintiff Mary Harz owned adjoining residential property and brought to the attention of the new Borough zoning officer her concern that Carter’s foundation exceeded the height permitted by the Borough’s zoning ordinance. The Supreme Court found that the Borough’s zoning officer did not adhere to the precise statutory procedures for processing Harz’s appeal, and the Court did 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 could not establish that the Borough denied her the right to be heard before the Planning Board. She therefore could not demonstrate that she was deprived of a substantive right protected by the Civil Rights Act.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of
the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.)

Mary Harz v. Borough of Spring Lake (A-48-16) (078711)

Argued January 29, 2018 -- Decided June 26, 2018

ALBIN, J., writing for the Court.

In this appeal, the Court considers 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.

The Municipal Land Use Law (MLUL) provisions applicable here, when viewed in
their entirety, clearly indicate that the board of adjustment (or planning board acting as a
board of adjustment) must conduct a review of an appeal challenging the issuance of a
zoning permit and must render a decision. That much is clear because (1) an “interested
party” may appeal a decision of a zoning officer to the board, and the zoning officer must
transmit “all the papers constituting the record” of the appeal to the board,
N.J.S.A. 40:55D-
72(a); (2) the board is empowered to “[h]ear and decide appeals,”
N.J.S.A. 40:55D-70(a);
and (3) the board must “render a decision” within 120 days,
N.J.S.A. 40:55D-73(a)(1).

On December 31, 2009, the Borough of Spring Lake’s then zoning officer issued a
zoning permit (First Permit) to Thomas Carter to construct a two-and-a-half-story residence.
Plaintiff Mary Harz owns adjoining residential property and brought to the attention of the
new Borough zoning officer her concern that Carter’s foundation exceeded the height
permitted by the Borough’s zoning ordinance.

On June 21, 2010, Harz’s attorney forwarded a letter to the zoning officer appealing
the issuance of the zoning permit and requesting that the zoning officer transmit “the papers
constituting the record” to the Planning Board, the body responsible for hearing the appeal.
Instead, the zoning officer requested that Carter’s engineer and architect revise the proposed
construction plans. The zoning officer did not issue a stop work order or rescind the zoning
permit, but construction on the project effectively ceased. When Carter submitted revised
plans, the zoning officer rejected them. On August 3, 2010, the zoning officer approved a
new set of revised plans and issued an amended zoning permit (Second Permit). The next
day, Harz’s attorney forwarded a letter to the zoning officer appealing from the Second
Permit on the ground that Carter’s revised plans still violated the height regulations. This
time the zoning officer transmitted the appeal to the Planning Board, which scheduled a
hearing for the evening of August 11.
Mary Harz v. Borough of Spring Lake (A-48-16) (078711) 2.

On the day that the hearing was scheduled, the Board’s engineer emailed the Board
and the parties an opinion letter stating that Carter’s construction plans were not in full
conformance with the Borough’s land-use ordinance. The Borough attorney cancelled the
hearing set for that evening, and the zoning officer rescinded the amended zoning permit.
The next day, the zoning officer issued a stop work order on Carter’s project. Carter
submitted revised construction plans, and on September 1, 2010, the zoning officer issued
another permit (Third Permit). Harz believed that the revised plans still violated the
Borough’s land-use ordinance. She filed in Monmouth County Superior Court an action
seeking temporary restraints to enjoin the construction project until Carter applied for
appropriate variances before the Planning Board. The Superior Court granted relief by
entering a temporary restraining order. Harz appealed to the Planning Board through the
zoning officer, challenging the issuance of the most recent permit.

In response to the appeal, the Planning Board conducted a three-day hearing in
October and November. On January 12, 2011, the Planning Board passed a Resolution
granting in part and denying in part Harz’s appeal. The Board agreed with Harz that Carter’s
plans would have resulted in a three-story home in violation of the ordinance. Accordingly,
the Board rescinded the Third Permit until Carter satisfied the conditions set for the
construction project. After Carter met those conditions, the zoning officer issued a final
zoning permit. No appeal was taken from the issuance of that permit.

On August 1, 2011, Harz filed a federal and state civil rights action against defendants
Borough and Philip Kavanaugh, the initial zoning officer. The nub of Harz’s complaint is
that she had to expend substantial funds to retain a lawyer and other professionals in battling
the improperly issued zoning permits. She alleges that but for the stop-work injunction she
secured from the Superior Court, the Borough would have continued to infringe on her right
to have the Planning Board hear her appeal from the issuance of the zoning permits.

The trial court granted the Borough’s and Kavanaugh’s motion for summary
judgment and dismissed the complaint. The Appellate Division affirmed except as to Harz’s
state civil rights claim against the Borough, which was remanded for further proceedings.
The Court granted the Borough’s petition for certification.
229 N.J. 591 (2017).

HELD: The Borough’s zoning officer did not adhere to the precise statutory procedures for
processing Harz’s appeal, and the Court does 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.

1.
N.J.S.A. 10:6-2(c) provides in part: “Any person who has been deprived of . . . any
substantive rights . . . secured by the Constitution or laws of this State, . . . by a person acting
under color of law, may bring a civil action.” Although the Civil Rights Act does not define
substantive rights, the Court has recognized that “the term is broad in its conception,”
Tumpson v. Farina,
218 N.J. 450, 473 (2014), and has looked to federal jurisprudence
Mary Harz v. Borough of Spring Lake (A-48-16) (078711) 3.

construing 42 U.S.C. § 1983 to formulate a workable standard for identifying a substantive
right under the Civil Rights Act, id. at 474-77. In doing so, the Court adopted the three-step
test set forth in Blessing v. Freestone,
520 U.S. 329, 340-41 (1997), id. at 475, 477, which it
now refines in light of Gonzaga University v. Doe,
536 U.S. 273, 283 (2002), for defining
when a statute confers an individual substantive right. Under the refined three-step test, a
court must determine: (1) whether, by enacting the statute, the Legislature intended to confer
a right on an individual, Gonzaga,
536 U.S. at 283-84; (2) whether the right “is not so 'vague
and amorphous’ that its enforcement would strain judicial competence,” Tumpson,
218 N.J.
at 475 (quoting Blessing,
520 U.S. at 340-41); and (3) whether the statute “unambiguously
impose[s] a binding obligation on the [governmental entity],” ibid. In addition to satisfying
those three “factors,” for purposes of the New Jersey Civil Rights Act, plaintiffs must also
“show that the right is substantive, not procedural.” Id. at 478. (pp. 16-22)

2 In Tumpson, the Court found that the Faulkner Act conferred on the plaintiffs the
substantive right of referendum -- the right to place a recently enacted ordinance before the
voters for their approval or disapproval.
218 N.J. at 477-78. Given that the Clerk of the City
of Hoboken had barred plaintiffs’ efforts to realize that substantive right, the only remedy
then available was through the court system. Id. at 478. Therefore, under the Civil Rights
Act, the plaintiffs were entitled to vindicate the right of referendum. Ibid. (pp. 22-23)

3. The MLUL clearly conferred on Harz a right to be heard before the Planning Board on
her appeal from the issuance of the zoning permit to her neighbor.
N.J.S.A. 40:55D-70(a), -
72(a), -73(a). The right to a review and decision by the Planning Board under this statutory
scheme is not amorphous but rather self-evident. Additionally, the MLUL unambiguously
imposes a binding obligation on the Board to provide Harz with the opportunity to be heard.
Last, because an interested party’s right to be heard is inextricably tied to a party’s property
rights, the MLUL right to be heard is substantive, not procedural. (pp. 23-25)

4. However, the Borough never deprived Harz of her right to appeal from an adverse
decision of the zoning officer or her right to be heard by the Planning Board. Nothing in the
record suggests that had Harz not filed her action in Superior Court, the Planning Board
would have denied her a hearing or that the prerogative-writs action was the catalyst for the
hearing. For purposes of the Civil Rights Act, Harz did not exhaust the statutory process for
securing her right to be heard under the MLUL. This case is unlike Tumpson, where the
plaintiffs had exhausted all efforts to have the City Clerk validate their referendum. Harz
never reached a dead end in her efforts to be heard, nor is there any evidence that a direct
appeal to the Board would have been futile. In fact, in response to her appeal, the Planning
Board conducted three days of hearings and ruled, in large measure, in favor of Harz.
(pp. 25-28)

REVERSED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.
SUPREME COURT OF NEW JERSEY
A-
48 September Term 2016
078711

MARY HARZ,

Plaintiff-Respondent,

BOROUGH OF SPRING LAKE, a
municipal corporation of the
State of New Jersey; and
PHILIP KAVANAUGH,

Defendants-Appellants.

Argued January 29, 2018 – Decided June 26, 2018

On certification to the Superior Court,
Appellate Division.

Paul L. LaSalle argued the cause for
appellants (Cleary Giacobbe Alfieri Jacobs,
attorneys; Paul L. LaSalle, on the briefs).

Roger J. McLaughlin argued the cause for
respondent (McLaughlin, Stauffer & Shaklee,
attorneys; Roger J. McLaughlin on the brief,
and Jeff Thakker, of counsel and on the
brief).

JUSTICE ALBIN delivered the opinion of the Court.

In 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.

1
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 N.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

1 The board of adjustment typically has the authority to “[h]ear
and decide” appeals taken from the decisions of zoning officers.
See
N.J.S.A. 40:55D-70(a). However, in certain municipalities,
such as the Borough of Spring Lake, the planning board exercises
the functions of the board of adjustment pursuant to
N.J.S.A.
40:55D-25(c).

2
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

MLUL 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.

Accordingly, we reverse the judgment of the Appellate

Division and dismiss Harz’s civil rights claim.

3
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

4
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 [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 of 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.

5
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 (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; see also Sitkowski v. Zoning Bd. of

Adjustment of Lavalette,
238 N.J. Super. 255, 260 (App. Div.

1990).

Two other procedural requirements are imposed by the MLUL

upon the filing of a zoning appeal. First, “[t]he board of

adjustment shall render a decision not later than 120 days after

the date . . . an appeal is taken from the decision of an

administrative officer.”
N.J.S.A. 40:55D-73(a)(1).2 Second,

2 In the case of an “applicant,” the board’s failure “to render
a decision within such 120-day period,” absent the applicant’s
consent, “shall constitute a decision favorable to the
applicant.”
N.J.S.A. 40:55D-73(b). An “applicant” is “a

6
“[a]n appeal to the board of adjustment shall stay all

proceedings in furtherance of the action in respect to which the

decision appealed from was made unless” the administrative

officer certifies that a stay would “cause imminent peril to

life or property.”
N.J.S.A. 40:55D-75. The statutory language

is less than clear about whether the filing of the appeal stays

the effect of a zoning permit without the issuance of a separate

stop work order. However, commentators have opined that

“[p]resumably a timely appeal by a neighbor would, under this

section, stay the right to build pursuant to the permit granted

until its validity could be ruled on by the zoning board of

adjustment.” Cox & Koenig § 26-1.5 at 562.

The applicable MLUL provisions, when viewed in their

entirety, clearly indicate that the board of adjustment (or

planning board acting as a board of adjustment) must conduct a

review of an appeal challenging the issuance of a zoning permit

and must render a decision. That much is clear because (1) an

“interested party” may appeal a decision of a zoning officer to

the board, and the zoning officer must transmit “all the papers

constituting the record” of the appeal to the board,
N.J.S.A.

40:55D-72(a); (2) the board is empowered to “[h]ear and decide

developer submitting an application for development.”
N.J.S.A.
40:55D-3.

7
appeals,”
N.J.S.A. 40:55D-70(a); and (3) the board must “render

a decision” within 120 days,
N.J.S.A. 40:55D-73(a)(1).

The nature and extent of the board’s review or any hearing

is not the issue before us.

II.

The relevant facts are adduced from the summary judgment

record.

On December 31, 2009, the Borough of Spring Lake’s then

zoning officer issued a zoning permit (First Permit) to Thomas

Carter to construct a two-and-a-half-story residence and a

detached garage on property he owns in the Borough. Plaintiff

Mary Harz owns adjoining residential property and was unaware of

the issuance of the permit at the time. In the late spring of

2010, after construction began on Carter’s residence, Harz

observed that the structure’s foundation appeared to be too

high. Harz then reviewed the development plans on file at the

Spring Lake Zoning Office and brought to the attention of the

new Borough zoning officer her concern that Carter’s foundation

exceeded the height permitted by the Borough’s zoning ordinance.

Unsatisfied with the zoning officer’s responses, Harz retained

an attorney.

On June 21, 2010, Harz’s attorney forwarded a letter to the

zoning officer appealing the issuance of the zoning permit. The

letter alleged that the construction plans for Carter’s property

8
allowed for an impermissible elevation of the property, improper

retaining walls, and an excessive height of the building in

violation of various provisions of the Borough’s land-use

ordinance. The letter further requested that the zoning officer

transmit “the papers constituting the record” to the Planning

Board, the body responsible for hearing the appeal.

Instead of transmitting the appeal to the Planning Board,

the zoning officer requested that Carter’s engineer and

architect revise the proposed construction plans. Carter’s

attorney gave “verbal assurances” to Harz’s attorney that

construction would not proceed until the zoning officer approved

the revised plans. The zoning officer did not issue a stop work

order or rescind the zoning permit, as requested by Harz, but

evidently construction on the project effectively ceased.

When Carter submitted revised plans, the zoning officer

rejected them, specifying that the plans’ shortcomings would

have to be addressed before the issuance of an amended permit.

On August 3, 2010, the zoning officer approved a new set of

revised plans and issued an amended zoning permit (Second

Permit).

The next day, Harz’s attorney forwarded a letter to the

zoning officer appealing from the Second Permit on the ground

that Carter’s revised plans still violated the Borough’s height

regulations. This time the zoning officer transmitted the

9
appeal and all relevant documents to the Planning Board, which

scheduled a hearing for the evening of August 11. Two days

before the hearing, Harz’s engineer forwarded a letter to the

Board’s engineer, identifying parts of the construction plans

that violated the Borough’s land-use ordinance.

On the day that the hearing was scheduled, the Board’s

engineer emailed the Board and the parties an opinion letter

stating that Carter’s construction plans were not in full

conformance with the Borough’s land-use ordinance. The Borough

attorney cancelled the hearing set for that evening, and the

zoning officer rescinded the amended zoning permit. The next

day, the zoning officer issued a stop work order on Carter’s

project.

Carter submitted revised construction plans, and on

September 1, 2010, the zoning officer issued another permit

(Third Permit). Harz believed that the revised plans still

violated the Borough’s land-use ordinance. She did not proceed

with a direct appeal to the Planning Board, pursuant to
N.J.S.A.

40:55D-72(a). Instead, she filed in Monmouth County Superior

Court an Order to Show Cause and an action in lieu of

prerogative writs seeking temporary restraints to enjoin the

construction project until Carter applied for appropriate

variances before the Planning Board. On September 7, the

Superior Court granted relief by entering a temporary

10
restraining order and directed the parties to appear for a

hearing on the Order to Show Cause. On September 16, the court

entered an order continuing the temporary restraint on

construction.3 The next day, Harz appealed to the Planning Board

through the zoning officer, challenging the issuance of the most

recent permit.

In response to the appeal, the Planning Board conducted a

three-day hearing in October and November. On January 12, 2011,

the Planning Board passed a Resolution granting in part and

denying in part Harz’s appeal. The Board agreed with Harz that

Carter’s plans would have resulted in a three-story home in

violation of the ordinance restricting the height of the

structure to two-and-a-half stories. The Borough also agreed

that the ordinance prohibited the construction of retaining

walls and the grading done on the property. The Borough

rejected, however, a number of other objections Harz raised.

Accordingly, the Board rescinded the Third Permit until

Carter satisfied the conditions set by the Board for the

construction project. On February 9, 2011, after Carter met

those conditions, the zoning officer issued a final zoning

permit.

3 The record before us does not reveal the nature of any
proceedings held relating to the Order to Show Cause.

11
No appeal was taken from the issuance of that permit.

III.

On August 1, 2011, Harz filed a federal and state civil

rights action against defendants Borough and Philip Kavanaugh,

the initial zoning officer, in the Monmouth County Superior

Court, Law Division. Harz brought claims under 42 U.S.C.

§ 1983, alleging that defendants violated her First Amendment

right to petition the government and her right to due process

and equal protection guaranteed by the Fourteenth Amendment.

She also brought a claim under the New Jersey Civil Rights Act,

N.J.S.A. 10:6-1 to -2, alleging that defendants violated her

substantive rights under the New Jersey Constitution and state

laws. Last, Harz alleged that defendants engaged in both

willful misconduct by issuing the First Permit and civil

conspiracy. She sought compensatory and punitive damages as

well as attorney’s fees.

The nub of Harz’s complaint is that she had to expend

substantial funds to retain a lawyer and other licensed

professionals in battling the improperly issued zoning permits.

She alleges that but for the stop-work injunction she secured

from the Superior Court, the Borough would have continued to

infringe on her right to have the Planning Board hear her appeal

from the issuance of the zoning permits. Harz credits her

12
Superior Court complaint as the “catalyst” for vindicating her

rights.

The trial court granted the Borough’s and Kavanaugh’s

motion for summary judgment on all of Harz’s claims and

dismissed the complaint. In dismissing Harz’s state civil

rights claim, which alleged a violation of her substantive right

to a hearing before the Planning Board pursuant to the MLUL, the

trial court explained: “There’s nothing in the statute which

established a right to a hearing on every appeal. [Harz’s]

interpretation that the 'right to be heard’ means the right to a

hearing is flawed. [Harz] may be 'heard’ by filing her appeal.”

In an unpublished opinion, the Appellate Division affirmed

the dismissal of all of Harz’s claims, except her state civil

rights claim against the Borough. The panel found that the

trial court improvidently granted summary judgment because the

evidentiary record supported the basis for a violation of a

substantive right under the Civil Rights Act. That claim

therefore was remanded for further proceedings.

The panel determined that, under
N.J.S.A. 40:55D-72, Harz

had a substantive right to appeal the issuance of the First and

Second zoning permits. The panel maintained that the Borough

violated that right when the zoning officer failed to transmit

her initial appeal to the Planning Board and later, after the

13
rescission of the Second Permit, when the Borough attorney

cancelled the hearing before the Board. Relying on Tumpson v.

Farina,
218 N.J. 450 (2014), the panel reasoned that “[t]he

failure to transmit a zoning appeal and the unauthorized

cancellation of a board meeting give rise to a cause of action

to compel compliance.” The panel essentially concluded that

Harz’s prerogative-writs action was the means by which Harz

vindicated her substantive right to secure the “[B]oard’s review

of an alleged zoning violation.”

We granted the Borough’s petition for certification

challenging the reinstatement of Harz’s state civil rights

claim.
229 N.J. 591 (2017).

IV.

The Borough argues that
N.J.S.A. 40:55D-72 does not confer

on an “interested party,” such as Harz, the “right to a board

hearing” 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. According to the Borough, Section 72(a) “merely

sets forth a discretionary procedure by which an interested

party can appeal a zoning permit to a board.” It submits that,

even assuming that Section 72(a) confers a right to appeal to a

Board, Harz “received relief under the statute because the

14
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).” In the Borough’s view,

the withdrawal and rescission of the permits rendered moot

Harz’s appeals to the Board. Last, the Borough contends that

the zoning officer’s “failure to immediately transmit the record

to the Planning Board” was, at most, a procedural defect rather

than the violation of a substantive right under the Civil Rights

Act.

Harz contends that the MLUL conferred on her the

substantive right to a Board “hearing” on her appeal challenging

the issuance of the zoning permits. She asserts that the

substantive right to a hearing is readily discernable from the

statutory scheme, which provides her the right to appeal the

zoning officer’s decision,
N.J.S.A. 40:55D-72(a), entitles her

to a decision from the Planning Board,
N.J.S.A. 40:55D-73(a)(1),

and “vests the Board with the power to 'hear and decide the

appeal, N.J.S.A. 40:55D-70(a).’” Harz argues that the zoning

officer did not abide by the unambiguous statutory obligation,

which required that he transmit the appeal to the Board. She

further argues that neither the Borough attorney nor zoning

officer had the statutory authority to cancel the Board hearing

after the rescission of the Second Permit. She disputes the

15
Borough’s claim that she received relief because the first two

permits issued were, in effect, rescinded and instead insists

that her “substantive right was to receive 'relief’ from the

Board.” Finally, Harz submits that her substantive statutory

rights were vindicated only because she filed a prerogative-

writs action in Superior Court, which resulted in her receiving

injunctive relief and having her appeal heard by the Board.

In determining whether the trial court properly granted

summary judgment -- or the Appellate Division properly reversed

-- we apply the same standard used by those courts: we view the

evidence in the light most favorable to Harz, who was the non-

moving party. See Murray v. Plainfield Rescue Squad,
210 N.J.
581, 584 (2012). Our review of the law -- both the MLUL and the

Civil Rights Act -- is de novo, and we owe no deference to the

interpretive conclusions of either the trial court or Appellate

Division. Ibid. Indeed, we may review the statute “with fresh

eyes.” Fair Share Hous. Ctr., Inc. v. State League of

Municipalities,
207 N.J. 489, 493 n.1 (2011).

The core issue is whether the Borough of Spring Lake

deprived Harz of a cognizable substantive right to be heard by

the Planning Board under the MLUL in violation of the New Jersey

16
Civil Rights Act,
N.J.S.A. 10:6-1 to -2. In addressing that

issue, we first turn to the relevant language of the 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 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). Indeed, the attorney’s fee provision is one of the Civil

Rights Act’s “most powerful remedies” because it allows average

citizens to attract competent counsel to vindicate their

substantive rights when violated by official action. Tumpson,

218 N.J. at 479-80.

“[O]ur State Civil Rights Act is modeled off of the

analogous Federal Civil Rights Act, 42 U.S.C. § 1983, and is

intended to provide what Section 1983 does not: a remedy for

the violation of substantive rights found in our State

Constitution and laws.” Id. at 474 (citing S. Judiciary Comm.

Statement to S. 1558 (May 6, 2004); Governor’s Statement upon

Signing A. 2073 (Sept. 10, 2004)). Although the Civil Rights

Act does not define substantive rights, we have recognized that

17
“the term is broad in its conception.” Id. at 473. We have

looked to federal jurisprudence construing 42 U.S.C. § 1983 to

formulate a workable standard for identifying a substantive

right under the Civil Rights Act.
4 Id. at 474-77. In doing so,

we adopted the three-step test set forth in Blessing v.

Freestone,
520 U.S. 329, 340-41 (1997), id. at 475, 477, which

we will now refine in light of Gonzaga University v. Doe,
536 U.S. 273, 283 (2002), for defining when a statute confers an

individual substantive right.

In accordance with Tumpson, the first step is determining

whether the Legislature “intended the statute” to confer a

“benefit” on an individual.
218 N.J. at 475, 477 (citing

Blessing,
520 U.S. at 340-41). Gonzaga, however, emphasized

that nothing “short of an unambiguously conferred right” will

support a cause of action under the federal civil rights law.

536 U.S. at 283.

In Gonzaga, the student plaintiff filed a Section 1983

lawsuit seeking damages against Gonzaga University for failing

4 We note that unlike 42 U.S.C. § 1983, which protects against
“the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws,” the Civil Rights Act
protects only against the deprivation of “substantive rights,
privileges or immunities secured by the Constitution or laws of
this State,”
N.J.S.A. 10:6-2(c). Tumpson,
218 N.J. at 477. In
short, the Civil Rights Act does not provide a remedy for the
deprivation of procedural rights.

18
to enforce provisions of the Family Educational Rights and

Privacy Act of 1974 (FERPA), a federal law that “prohibit[s] the

federal funding of educational institutions that have a policy

or practice of releasing education records to unauthorized

persons.” Id. at 276. The student contended that Gonzaga’s

disclosure of his disciplinary records to unauthorized third

persons violated FERPA and therefore entitled him to damages

under Section 1983. Id. at 277. The Supreme Court determined

that although FERPA’s nondisclosure provisions were enforceable

against the University by the government, those provisions did

not confer on the student a privately enforceable right against

the University. Id. at 290. The Supreme Court explained that

“it is rights, not the broader or vaguer 'benefits’ or

'interests,’ that may be enforced under the authority of

[Section 1983].” Id. at 283. Thus, the test is “whether

Congress intended to create a federal right” enforceable by the

person directly benefitted. Id. at 283-84.

Thus, in light of Gonzaga, we now recalibrate the first

step. In the three-step test, a court must determine: (1)

whether, by enacting the statute, the Legislature intended to

confer a right on an individual, ibid.; (2) whether the right

“is not so 'vague and amorphous’ that its enforcement would

strain judicial competence,” Tumpson,
218 N.J. at 475 (quoting

Blessing,
520 U.S. at 340-41); and (3) whether the statute

19
“unambiguously impose[s] a binding obligation on the

[governmental entity],” ibid.

In addition to satisfying those three “factors,” for

purposes of our Civil Rights Act, plaintiffs must also “show

that the right is substantive, not procedural.” Id. at 478

(explaining that “'[s]ubstantive’ addresses those rights and

duties that may give rise to a cause of action, whereas

'procedural’ addresses 'the manner and the means’ by which those

rights and duties are enforced” (citations omitted)). Because

our description of substantive rights in Tumpson may not be

sufficiently precise, we use this occasion to provide additional

guidance.

In essence, a substantive right is “[a] right that can be

protected or enforced by law; a right of substance rather than

form.” Black’s Law Dictionary 1437, 1438 (9th ed. 2009)

(defining a procedural right, in contrast, as “[a] right that

derives from legal or administrative procedure; a right that

helps in the protection or enforcement of a substantive right”).

Certain substantive rights are readily familiar to us: the

“unalienable rights” of “enjoying and defending life and

liberty, [and] acquiring, possessing, and protecting property,”

N.J. Const. art. I, ¶ 1; see also U.S. Const. amend. XIV; the

right to freedom of speech and to petition the government for

redress of grievances, U.S. Const. amend. I; the right to not

20
have private property taken for public use without just

compensation, U.S. Const. amend. V; and the right to be free

from unreasonable seizures, U.S. Const. amend. IV. There are

many other substantive rights specifically mentioned in our

Federal and State Constitutions. Other substantive rights are

identified in our constitutional jurisprudence, such as: the

right to privacy, In re Quinlan,
70 N.J. 10, 39-40 (1976); the

right to marriage, Obergefell v. Hodges, 576 U.S. ___,
135 S. Ct. 2584, 2597-99 (2015); and the right to parental autonomy,

Johnson v. Johnson,
204 N.J. 529, 543-44 (2010). Still other

rights are conferred by statute. See Rosenberg v. Town of North

Bergen,
61 N.J. 190, 199-200 (1972) (“The Legislature is

entirely at liberty to create new rights or abolish old ones as

long as no vested right is disturbed.”).

Here, the nature of the substantive right at issue -- a

property right -- is clearly identifiable. The right of an

interested party to appeal the issuance of a zoning permit -- to

have her concerns “heard” -- is rooted in principles of property

rights, specifically the right to not be deprived of an interest

in one’s property without process. Thus, “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 [the MLUL]” is an “interested party.”
N.J.S.A.

40:55D-4; see also N.J. Const. art. I, ¶ 1 (guaranteeing right

21
to acquire, possess, and protect property). Because an adjacent

property owner’s rights “may be affected” by construction on

neighboring property, the adjacent owner -- as an interested

party under the MLUL -- has a right to have her concerns heard

in some form.

In Tumpson, we applied the three-part Blessing test, albeit

without the Gonzaga refinement, and found that the Faulkner Act

conferred on the plaintiffs the substantive right of referendum

-- the right to place a recently enacted rent control ordinance

before the voters for their approval or disapproval. Tumpson,

218 N.J. at 477-78. In that case, the Clerk of the City of

Hoboken violated provisions of the Faulkner Act by refusing to

accept the plaintiffs’ referendum petition and place the

challenged ordinance on the ballot. Id. at 471-72. Having

exhausted their efforts with the City Clerk, the plaintiffs

filed an action in lieu of prerogative writs seeking suspension

of the effective date of the ordinance until the holding of a

referendum. Id. at 459. They also sought relief under the New

Jersey Civil Rights Act. Ibid.

In applying the Blessing test, we held: first, the

Legislature, through the Faulkner Act, clearly intended to

confer the right of referendum on the plaintiffs and voters of

Hoboken; second, the right as enunciated in the statute was

22
neither “vague” nor “amorphous,” and its application was

straightforward; and third, the Clerk was unambiguously required

to accept and file the referendum petition. Id. at 477-78.

Moreover, because the Clerk’s failure to file the petition gave

rise to a cause of action, we determined that “by definition,

the right of referendum is substantive in nature.” Id. at 478.

The Clerk’s refusal to accept the referendum petition

essentially represented a dead end for the plaintiffs. Id. at

486. Although the filing of a referendum petition with the

Clerk in Tumpson may at first glance appear to be merely

procedural, the filing of the petition was inextricably

intertwined with the vindication of the plaintiffs’ right of

referendum. See id. at 468-71. Given that the Clerk had barred

plaintiffs’ efforts to realize that substantive right, the only

remedy then available was through the court system. Id. at 478.

Therefore, under the Civil Rights Act, the plaintiffs were

entitled to vindicate the right of referendum by securing a

judicial order placing the ordinance on the ballot for a vote by

the residents of Hoboken and to obtain the statutory relief of

attorney’s fees. Ibid.

VI.

We now apply the principles enunciated in Tumpson in

determining whether, in violation of the Civil Rights Act, the

23
Borough of Spring Lake violated Harz’s right to be heard by the

Planning Board.

The MLUL clearly conferred on Harz a right to be heard

before the Planning Board on her appeal from the issuance of the

zoning permit to her neighbor -- a permit she claimed violated

the Borough’s land-use ordinance.5 First, Harz is an “interested

party” under the MLUL because she resides within the Borough and

the zoning officer’s issuance of the permit to the neighbor

“affected” her right to use or enjoy her property. See
N.J.S.A.

40:55D-4; Cox & Koenig § 26-1.1 at 559 (noting that “interested

party” includes neighbor affected “by the grant of a building

permit that will result in a structure that violates the zoning

ordinance”). Second,
N.J.S.A. 40:55D-72(a) provides an

“interested party,” such as Harz, the right to appeal a zoning

officer’s decision to the Planning Board, acting as a board of

adjustment. Third, on the filing of the appeal, the zoning

officer was required to “immediately transmit to the [Planning

Board] all the papers constituting the record.” Ibid. Fourth,

N.J.S.A. 40:55D-70(a) empowers a board of adjustment to “[h]ear

and decide appeals” taken from an administrative officer, such

5 This case does not present an occasion for this Court to limn
the nature or the scope of such a hearing, which may depend on
the mundane or unique circumstances of the matter presented to
the board of adjustment or planning board.

24
as a zoning officer. Last, the Planning Board was required to

render a decision on Harz’s appeal within 120 days.
N.J.S.A.

40:55D-73.

The right to a review and decision by the Planning Board

under this statutory scheme is not amorphous but rather self-

evident. Additionally, the MLUL “unambiguously impose[s] a

binding obligation on the [Board]” to provide Harz with the

opportunity to be heard. See Tumpson,
218 N.J. at 475 (quoting

Blessing,
520 U.S. at 340-41). Last, because an interested

party’s right to be heard is inextricably tied to a party’s

property rights, we find that the MLUL right to be heard is

substantive, not procedural. Moreover, it is a right that can

be enforced through an action in lieu of prerogative writs. See

id. at 478; see also
N.J.S.A. 40:55D-18 (providing that “an

interested party . . . may institute any appropriate action or

proceedings to prevent” erection of unlawful structure).

Whatever may be the nature or the scope of the right to be

heard on an appeal from a zoning officer’s decision, the Borough

did not violate a substantive right as envisaged under the Civil

Rights Act. The Borough never deprived Harz of her right to

appeal from an adverse decision of the zoning officer or her

right to be heard by the Planning Board. Certainly, after Harz

filed her appeal from the issuance of the First Permit, the

25
zoning officer should have transmitted the record to the

Planning Board, as the statute requires. The failure to do so,

however, did not deprive Harz of a substantive right because she

suffered no adverseness. The zoning officer made clear to

Harz’s neighbor that the current permit was no longer operative

and an amended permit would have to be issued because of

concerns raised by Harz. The Borough was responding to Harz,

even if not to her full satisfaction.

Importantly, construction effectively ceased until the

zoning officer issued the Second Permit. When Harz appealed

from that permit, the zoning officer forwarded the record to the

Planning Board. Although the Board scheduled a hearing, the

cancellation of that hearing did not deprive Harz of a

substantive right because -- before the hearing -- the Second

Permit was rescinded based on her objections to her neighbor’s

proposed construction. In addition, the Borough entered a stop

work order halting any construction on the neighbor’s property.

Again, Harz suffered no adverseness to any property right she

possessed.

When the Third Permit issued, at first, Harz did not

proceed with an appeal to the Planning Board pursuant to

N.J.S.A. 40:55D-72(a) but instead filed a prerogative-writs

action and Order to Show Cause in Superior Court aimed at

enjoining the permit. That was her right, and one contemplated

26
by
N.J.S.A. 40:55D-18. Her success in obtaining a restraining

order, however, did not signify that the Borough denied her the

right to be heard. Indeed, after filing the prerogative-writs

action, she filed an appeal with the zoning officer in the

ordinary course. Nothing in the record suggests that had Harz

not filed her action in Superior Court, the Planning Board would

have denied her a hearing or that the prerogative-writs action

was the catalyst for the hearing. For purposes of the Civil

Rights Act, Harz did not exhaust the statutory process for

securing her right to be heard under the MLUL.

This case is unlike Tumpson, where the plaintiffs had

exhausted all efforts to have the City Clerk validate their

referendum petition and place the challenged ordinance on the

ballot for a vote by the residents of Hoboken. The plaintiffs

in Tumpson had reached the end of the line in seeking an

administrative remedy with the City Clerk, and it was at that

point that the plaintiffs were deprived of the right of

referendum and pursued their civil rights claim in Superior

Court. Here, if the zoning officer had permitted construction

to proceed on Carter’s property and blocked Harz’s ability to

appeal to and be heard by the Board, that scenario would be more

comparable to what plaintiffs experienced in Tumpson. But Harz

never reached a dead end in her efforts to be heard by the

Planning Board, nor is there any evidence in the record that a

27
direct appeal to the Board would have been futile.6 In fact, in

response to her appeal, the Planning Board conducted three days

of hearings and ruled, in large measure, in favor of Harz.

Cast in that light, Harz did not prove that the Borough

deprived her of the right to be heard, even under the indulgent

summary judgment standard that requires the evidence to be

viewed in the light most favorable to plaintiff.7

VII.

For the reasons stated above, we reverse the judgment of

the Appellate Division, which reinstated Harz’s civil rights

claim against the Borough, and now dismiss that claim.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.

6 The record does not suggest that the Borough engaged in a
course of conduct to wear down Harz by repeated rescissions and
reissuances of permits, rendering futile her efforts to appeal.
We therefore need not address a scenario of bad faith efforts to
deliberately burden an interested party’s right to appeal.
7 Given our determination that Harz does not have a state civil
rights claim, we decline to reach the respondeat superior
arguments about whether Harz’s claims actually lie against the
municipal actors or the Borough. See Monell v. Dep’t of Soc.
Servs.,
436 U.S. 658, 694 (1978) (concluding that “it is when
execution of a government’s policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983”).
Moreover, as noted by the Appellate Division, these arguments
were not raised below with the trial court.

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