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The League would like to alert our members to a recent State Supreme Court ruling that will undoubtedly impact how municipal zoning boards handle appeals of zoning permits. Earlier this week the NJ Supreme Court issued its decision Mary Harz v. Borough of Spring Lake, which essentially answered two questions:

  • Does a homeowner, who challenges the issuance of a zoning permit allowing construction on a neighboring property, have a statutory right to be heard before the municipal zoning board? And, if so;
  • Is the right to be heard a substantive right, a violation of which would give rise to an action under the NJ Civil Rights Act?

In regards to the first question, the Court found that the Municipal Land Use Law (MLUL) unambiguously confers on property owners a right to have their appeal of a permit heard before the zoning board.  While the Court, in this case did not have the opportunity to explain what a hearing should entail, it did clarify that a zoning board must hear appeals from any interested party, including neighboring property owners, and within 120 days, render a decision.

Once it determined this threshold issue, the Court then moved on to the second question of determining whether a hearing was a substantive right with Civil Rights Act protections, or merely a procedural right with no such protections.  On this issue, the Court ruled that a hearing before the zoning board on a permit appeal is a substantive right.

This ruling is impactful as it clearly identifies for the first time that property owners have a substantive right to appeal the issuance of permits and have that appeal heard by the zoning board.  Furthermore, because this is a substantive right a cause of action under the Civil Rights Act can be sustained and as with any cause of action under the Act, the plaintiff if successful would be entitled to attorney fees and other redress from the municipality.

Nevertheless, even with the Court’s ruling in regards to appeal hearings and the Civil Rights Act, they still sided with the municipality.  This was because, under the facts presented, the interested party had not exhausted the statutory process available to her to ensure her right to be heard under the MLUL, and suffered no adverseness.  The Court distinguished the facts of this case from those in the Tumpson case where all administrative remedies had been exhausted and the plaintiff’s only option was to file suit.  Unlike in Tumpson, in this week’s case, Plaintiff’s civil rights were properly protected by the municipality when her concerns were addressed and remedied by the zoning officer without the need to resort to a hearing before the zoning board.  In any event, because her complaints were heard and the underlying issues within those complaints were resolved (in her favor) no hearing before the board was required as the matter was rendered moot.  Therefore, because it would have been fruitless, there was no need to have an appeal hearing and in turn, no civil rights violation occurred.

This week’s ruling effectively allows a zoning officer (or other municipal officials) to takes corrective action to resolve zoning complaints received from interested parties prior to an appeal being heard by the zoning board.  And, once resolved, especially when resolved in favor of the complaining party, an appeal hearing before the board is no longer required.

You should review this decision with your municipal attorney as well as your zoning board attorney, for more information on how it could impact your municipality.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x.137.

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