Opinion
DOCKET NO. A-5133-13T4
11-21-2016
MARY HARZ, Plaintiff-Appellant, v. BOROUGH OF SPRING LAKE, a municipal corporation of the State of New Jersey; and PHILIP KAVANAUGH, Defendants-Respondents.
Roger J. McLaughlin argued the cause for appellant (McLaughlin, Stauffer & Shaklee, P.C., attorneys; Mr. McLaughlin and Jeff Thakker, on the briefs). Paul L. LaSalle argued the cause for respondents (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys; Mr. LaSalle, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez, Ostrer and Haas. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3643-11. Roger J. McLaughlin argued the cause for appellant (McLaughlin, Stauffer & Shaklee, P.C., attorneys; Mr. McLaughlin and Jeff Thakker, on the briefs). Paul L. LaSalle argued the cause for respondents (Cleary Giacobbe Alfieri Jacobs, LLC, attorneys; Mr. LaSalle, of counsel and on the brief). The opinion of the court was delivered by OSTRER, J.A.D.
Plaintiff Mary Harz appeals from the summary judgment dismissal of her civil action against defendants, the Borough of Spring Lake and Philip Kavanaugh, its former zoning officer. Pursuant to 42 U.S.C.A. § 1983, and the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, she seeks relief for the alleged violation of her First Amendment right to petition her government, her rights to due process and equal protection, and her rights under the Municipal Land Use Law. Her claims arise out of the improper issuance of zoning permits to the owners of a neighboring property and the Borough's subsequent response to Harz's complaints about the permits. Having considered Harz's arguments in light of the record and applicable principles of law, we affirm in part and reverse in part.
I.
We discern the following facts from the record, viewed in a light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The litigation arises out of three successive zoning permits issued for the same project on the property next to Harz's house. The project called for the demolition of an existing house and the construction of a new one. Each permit was met with Harz's objections, rescinded, and replaced by the next permit. All three sanctioned plans that were later found to be non-compliant with local zoning ordinances. Harz alleges the Borough wrongfully interfered with her right to appeal to the Board from the first two permits. The Board considered her appeal from the third permit only after the Superior Court compelled the Board to do so. The Board thereafter agreed that the third permit also allowed a non-compliant structure and rescinded the permit.
Defendant Philip Kavanaugh issued the first permit on December 31, 2009 — his last day as Borough zoning officer. The permit was issued after review of architectural plans and a survey previously submitted. Kavanaugh notified the owners of the property that their application for a zoning permit was approved the same day.
After observing the construction that began the following spring, Harz believed the foundation was higher than permitted by the zoning ordinance. She then reviewed the architectural plans and permits on file. She concluded the project violated multiple zoning provisions. In particular, it called for a house with three stories when the limit was two-and-a-half; it utilized retaining walls prohibited by the ordinance; and it altered the property's elevation by more than eighteen inches, which the ordinance also proscribed. Harz also believed that the overall size of the house, if properly calculated, required a bulk variance.
Harz informally brought her observations to the attention of Matthew Zahorsky, the Borough's new zoning officer. He initially tried to demonstrate that the plan complied with the ordinance, although he later determined it did not. Nevertheless, the Borough did not revoke the permit or issue a stop work order.
Unsatisfied by the Borough's response, Harz retained counsel, who filed a formal written appeal of the zoning permit. In his June 21, 2010 submission to Zahorsky, counsel reiterated the concerns Harz had previously raised. He contended the project violated Borough of Spring Lake Code §§ 225-12D, -28A, -28B, and -28C. Counsel asked Zahorsky to transmit the appeal to the Board promptly, pursuant to N.J.S.A. 40:55D-72. The same day, counsel separately wrote to the Borough Administrator and the Construction Official, calling upon them to revoke the zoning and building permits and to issue a stop work order.
Zahorsky did not transmit the appeal to the Board, which consequently took no action. Instead, Zahorsky contacted the owners' architect and engineer and requested revised plans. Zahorsky then rescinded the first zoning permit and issued the second one on August 3, 2010, based on new plans received in July.
Convinced the new plans failed to cure the violations, Harz filed with Zahorsky her second appeal to the Board through her counsel the next day. In this appeal, counsel contended the plans violated the prohibition of bedrooms in floors more than two feet below grade. In addition, he argued the structure would still violate the limitations on height and number of stories. Counsel reserved the right to identify other violations upon further review. He again specifically asked Zahorsky to forward the appeal to the Board pursuant to N.J.S.A. 40:55D-72 and Borough of Spring Lake Code § 225-36A(1). Counsel also separately wrote to the Borough Attorney, Joseph Calao, contending that the appeal should trigger issuance of a stop work order.
A few days later, Harz's engineer submitted his analysis of the revised plans to the Board's engineer. Among other violations, he concluded the plans violated height and story limitations by 0.11 feet and half a story, and violated lot and building coverage limitations by approximately 480 square feet and 340 square feet. In a written response to the Board, the Board's engineer differed with some of Harz's engineer's conclusions and agreed with others. He also noted ambiguities and shortcomings in the Borough's ordinance, which he suggested the Board clarify.
The Board scheduled a hearing for August 11, 2010. Harz's attorney and engineering professionals were prepared to attend to present her appeal. However, late in the afternoon, Calao cancelled the meeting and emailed Harz's attorney, stating:
In consideration of the recent engineering review letters, the Borough has determined to rescind Zoning Permit 2010-50. Accordingly, the related appeal is rendered moot and there will be no hearing at this evening's Planning Board meeting.
A Stop Work Order will be issued pending further analysis, necessary plan modifications or variance application.
Calao did not consult with the Board or secure its consent before cancelling the hearing. Harz argues Calao lacked the authority to cancel the hearing and the matter was not moot. In particular, she contends the alleged ambiguities in the ordinance were unresolved and disagreements remained between the two engineers.
Zahorsky rescinded the second permit and, on September 1, 2010, issued the third zoning permit, which referred to grading, drainage, and architectural plans revised on August 19, 2010. Harz believed that significant zoning violations remained uncorrected. However, convinced that filing another appeal with the Board would be futile, she sought and obtained injunctive relief in Superior Court. By order entered September 7, 2010, the court restrained all construction activity pending the property owner's application to the Board "for all necessary variances and/or interpretations of the Borough Code which are required for the construction of a dwelling on the property."
It is unclear from the record who ultimately decided to rescind the second permit. Zahorsky testified that he rescinded the permit in response to Calao's email. However, Calao asserted that Zahorsky decided to rescind the permit, prompting Calao's email to cancel the Board hearing.
Thereafter, on October 6, October 27, and November 22 of 2010, the Board held public meetings on Harz's appeal. In a resolution issued on January 12, 2011, the Board found: (1) the proposed structure was three stories, which exceeded the maximum of two-and-a-half; (2) the proposed structure utilized prohibited retaining walls; and (3) the property's grading had been altered in violation of the ordinance. The Board ordered rescission of the zoning permit until the violations were cured.
Harz thereafter filed suit against the Borough and Kavanaugh. Her five-count amended complaint alleged defendants violated her substantive and procedural due process rights by burdening her First Amendment right to petition government (count one); her right to equal protection (count two); and her rights under the CRA (count three). She also alleged willful and malicious misconduct (count four) and civil conspiracy (count five). She sought compensatory and punitive damages as well as attorney's fees.
After a period of discovery, defendants moved for summary judgment. In an order issued after oral argument on May 23, 2014, the court dismissed the complaint with prejudice. With respect to count one, the court held:
[T]he right to petition embodied in the [F]irst [A]mendment imposes no affirmative duty on the government to listen to or respond to a grievance, but rather protects the right to file a grievance in order to seek redress. . . . In this matter, there's no evidence that would tend to establish that defendants deprived the plaintiff of the right to file a grievance with the planning board.
The court also rejected Harz's claim that the Borough violated her substantive and procedural due process rights under the Fourteenth Amendment. With respect to substantive due process, the court noted that Harz did not allege a violation of property interests. The court held, citing County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S. Ct. 1708, 1717, 140 L. Ed. 2d 1043, 1057-58 (1998): "Plaintiff has submitted no evidence which would support a finding that the planning board's actions were []so egregious, so outrageous that it may fairly be said to shock the contemporary conscience." The court also concluded that Harz's initial appeal to the Board was untimely. The court also dismissed the equal protection claim, finding no evidence that the Borough intentionally treated Harz disparately.
Noting that the CRA was modeled on 42 U.S.C.A. § 1983, the court rejected the CRA claim for the same reasons it rejected her federal due process and equal protection claims. The court found:
[Plaintiff] has not established that any of her constitutional rights have been violated . . . . She's presented no facts to indicate that the board acted in a way that "shocks the conscience," . . . that she was treated differently from any other individuals, [or] that the defendant's actions were . . . discriminatory in nature and were motivated by a discriminatory purpose.
Finally, the court dismissed the claim that the Borough acted willfully and maliciously in obstructing her access to the Board. The court held the claim against the Borough was barred by the Tort Claims Act (TCA), citing N.J.S.A. 59:2-3(b), -4. With respect to the claim against Kavanaugh, the court found no evidence to support a finding of actual malice or actual misconduct, N.J.S.A. 59:3-14(a), sufficient to overcome TCA immunity.
The court also dismissed the civil conspiracy count, which is not the subject of the appeal.
II.
We review a grant of summary judgment de novo, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We determine whether the moving party demonstrated the absence of genuine issues of material fact and whether the trial court correctly determined that the movant is entitled to judgment as a matter of law, owing no deference to the trial court's legal conclusions. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 507 (App. Div.), certif. denied, 222 N.J. 17 (2015).
A.
We consider first Harz's CRA claim against the Borough. The CRA entitles any person to seek damages, injunctive relief, and attorney's fees if, among other things, she "has been deprived of any . . . substantive rights . . . secured by the . . . laws of this [s]tate . . . ." N.J.S.A. 10:6-2(c). Harz argues that her right to appeal the zoning permit to the Board pursuant to N.J.S.A. 40:55D-72 is a substantive right, which the Borough twice violated when (1) Zahorsky failed to transmit her initial appeal of the first permit to the Board; and (2) Calao cancelled the Board meeting scheduled to consider her appeal of the second permit. We agree.
We are guided by the Supreme Court's interpretation of the CRA in Tumpson v. Farina, 218 N.J. 450 (2014). In Tumpson, the Hoboken city clerk refused to file a petition for a referendum on the city's rent control ordinance pursuant to the Faulkner Act, N.J.S.A. 40:69A-185 to -192. Id. at 458-60. In an action in lieu of prerogative writ challenging the clerk's refusal, the trial court held, and we affirmed, that the clerk violated certain referendum provisions of the law. Tumpson v. Farina, 431 N.J. Super. 164, 180 (App. Div. 2013), aff'd in part and rev'd in part, 218 N.J. 450 (2014). Plaintiffs also sought attorney's fees pursuant to the CRA. Id. at 173. The trial court granted that request, but we reversed the trial court. Id. at 173, 182.
We recognize that the trial judge did not have the benefit of the Court's decision when she dismissed Harz's CRA count.
The issue before the Court was whether the violation of the referendum provisions triggered a right to relief under the CRA. The Court noted that the CRA was modeled after 42 U.S.C.A. § 1983, but was "intended to provide what [42 U.S.C.A.] Section 1983 does not: a remedy for the violation of substantive rights found in our State Constitution and laws." Tumpson, supra, 218 N.J. at 474. Drawing on federal precedent, principally Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997), the Court adopted a three-stage analysis for determining whether a right to relief exists under the CRA. Id. at 477-79. Based thereon, the Court concluded that the plaintiffs in Tumpson were entitled to relief. Id. at 486.
First, noting that the CRA, like Section 1983, protects against the violation of rights, as opposed to violations of laws, the Court held that a plaintiff must establish (1) the Legislature intended the statute at issue to "confer a benefit" on the plaintiff; (2) "the statutory right . . . is not so vague [or] amorphous that its enforcement would strain judicial competence"; and (3) the statute "unambiguously impose[s] a binding obligation" on the governmental actor. Tumpson, supra, 218 N.J. at 477 (quoting Blessing, supra, 520 U.S. at 340, 117 S. Ct. at 1359, 137 L. Ed. 2d at 582) (internal quotation marks omitted). The Court concluded the power of referendum met all three requirements. Id. at 478.
Second, a plaintiff must establish that the statutory right at issue is substantive, not procedural. The Court adopted the following test: "'Substantive' addresses those rights and duties that may give rise to a cause of action, whereas 'procedural' addresses the manner and means by which those rights and duties are enforced." Id. at 478 (internal quotation marks and citations omitted). The Court concluded that plaintiffs' right was substantive because the clerk's failure to file the petition "gave rise to a cause action." Ibid.
Third, a court must determine whether the Legislature intended to foreclose a remedy under the CRA, either expressly or impliedly. Id. at 478. The Court noted that, under Section 1983, the implication of non-applicability may arise from the creation of a "comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983." Id. at 475 (quoting Blessing, supra, 520 U.S. at 341, 117 S. Ct. at 1360, 137 L. Ed. 2d at 582). In reference to the specific claim in Tumpson, the Court held that recognizing a right to relief under the CRA was "not in any way antithetical to the goals of the Faulkner Act." Id. at 479.
Applying this analytic approach to the case at hand, we are convinced that Harz has a right to relief under the CRA. We consider first the right Harz invokes: the right to appeal a zoning decision to the zoning board of adjustment by filing a notice of appeal to the zoning officer.
It is undisputed that Spring Lake's Planning Board exercises the functions of a zoning board of adjustment, pursuant to N.J.S.A. 40:55D-25(c).
Appeals 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 or official map. 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.
[N. J.S.A. 40:55D-72(a).]
Once the notice is filed, the zoning officer is obliged to transmit the appeal to the board. Ibid. ("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."). The board in turn is empowered to rule on the appeal. N.J.S.A. 40:55D-70(a) ("The board . . . shall have the power 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 . . . ."). Additionally, the board, not an officer or attorney for the municipal governing body, sets the schedule of its meetings, N.J.S.A. 40:55D-9, and adopts rules and regulations, including those governing the conduct of hearings. N.J.S.A. 40:55D-8, -10.
Thus, applying the Court's test in Tumpson, we conclude that section 72(a) articulates a right to challenge a zoning officer's decision. The provision was intended to confer a benefit on any "interested party affected by" the zoning officer's permitting decision. A next-door neighbor clearly falls into that class. See William M. Cox & Stuart R. Koenig, New Jersey Zoning & Land Use Administration § 26-1.1 at 553 (2015) (stating that "a neighbor . . . aggrieved by the grant of a building permit that will result in a structure that violates the zoning ordinance" may appeal the grant to the zoning board pursuant to section 72(a)). Also, as the right to secure a hearing before a board is clearly set out in the land use law, it is not so vague or amorphous as to strain judicial competence. Furthermore, the land use law unambiguously imposes a duty upon the zoning officer to transmit an appeal. It provides no authority to a borough attorney to cancel a board meeting.
Turning to the second stage of our analysis, defendants contend that the rights at issue are not substantive. However, applying the test in Tumpson, we disagree. The failure to transmit a zoning appeal and the unauthorized cancellation of a board meeting give rise to a cause of action to compel compliance. Just as the referendum provisions of the Faulkner Act provide citizens a check on the power of municipal governing bodies, N.J.S.A. 40:55D-72(a) endows interested parties affected by a permit with a means to check a zoning officer's power.
In urging us to find no substantive right, defendants misplace reliance on Lindquist v. Buckingham Twp., 106 Fed. App'x. 768 (3d Cir. 2004), cert. denied, 543 U.S. 1121, 125 S. Ct. 1072, 160 L. Ed. 2d 1069 (2005), wherein the court held that a mere violation of a zoning law did not rise to a violation of substantive due process. As the Tumpson Court found, the CRA was intended to provide a remedy where one did not exist under the United States Constitution or federal law. Tumpson, supra, 218 N.J. at 474. A plaintiff need not establish a violation of substantive due process in order to establish a violation of a substantive state statutory right.
Finally, we discern no Legislative intent, express or implied, to bar Harz relief. The Tumpson Court found no indication that the Legislature "expressly or impliedly did not intend the [CRA's] remedies to apply to long-established actions in lieu of prerogative writ . . . to compel an official to enforce the Faulkner Act's right of referendum." Tumpson, supra, 218 N.J. at 478. We reach the same conclusion with respect to an action in lieu of prerogative writ to compel the transmittal of an appeal and to conduct a hearing thereon.
It is not antithetical to the municipal land use scheme to authorize relief to a citizen denied the rights granted under the law. The right denied here is not the right to enforce the local zoning ordinance or to be free from zoning violations. We do not suggest that any zoning violation is remediable under the CRA. Arguably, entertaining such actions would be antithetical to the comprehensive scheme established by the land use law. The right violated in this case pertains to obtaining a board's review of an alleged zoning violation.
Extending to Harz all reasonable inferences of fact, she has established that the Borough, through its zoning officer and its attorney, deprived her of that substantive right. We reject the Borough's argument that, since Harz filed her appeal more than twenty days after Kavanaugh issued the first permit, Harz had no right to a hearing at all because it was untimely. "[T]he time for an appeal runs from the date an interested party knows or should know of the action of an administrative officer . . . ." Sitkowski v. Zoning Bd. of Adj. of Borough of Lavallette, 238 N.J. Super. 255, 260 (App. Div. 1990) (citing Trenkamp v. Twp. of Burlington, 170 N.J. Super. 251, 268 (Law Div. 1979)). In any event, it is for the Board, not the zoning officer, to determine whether an appeal is timely filed.
As it was not raised below, we decline to reach defendant's argument, citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), that even if Harz may maintain a CRA action, it lies against the municipal actors, not the Borough. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
The record does not indicate, nor did the trial court find, when Harz knew or should have known the permits were issued. --------
Therefore, we conclude that the trial court erred in dismissing Harz's CRA claim against the Borough.
B.
We reach the opposite conclusion with respect to Harz's remaining claims. First, Harz contends she presented sufficient facts to establish that the Borough, by interfering with her two appeals, violated her First Amendment right to petition the government. We disagree.
The right to petition under the First Amendment includes a right to access both courts and administrative agencies. Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S. Ct. 609, 613, 30 L. Ed. 2d 642, 648 (1972). While the government may not retaliate against a citizen for the exercise of First Amendment rights, see, e.g., Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008), the right to petition does not oblige the government to listen or respond. Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 285, 104 S. Ct. 1058, 1066, 79 L. Ed. 2d 299, 312 (1984); Comm. to Recall Robert Menendez v. Wells, 204 N.J. 79, 127 (2010); see also Welch v. Paicos, 66 F. Supp. 2d 138, 162 (D. Mass. 1999) (holding that developer's First Amendment right to petition did not include a right to a hearing before local body). Harz's reliance on Soundview Assocs. v. Town of Riverhead, 725 F. Supp. 2d 320, 340-42 (E.D.N.Y. 2010) is unavailing, as that case dealt with alleged retaliation, not the failure to provide a hearing on a grievance.
We also affirm the trial court's dismissal of Harz's substantive due process claim, which was predicated upon the alleged violation of her First Amendment rights. "[I]f a constitutional claim is covered by a specific constitutional provision . . . the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." Cty. of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S. Ct. 1708, 1715, 140 L. Ed. 2d 1043, 1055 (1998) (internal quotation marks and citation omitted); see also Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 365 (1996). In any event, Harz has not demonstrated executive action so egregious that it shocks the contemporary conscience. Accordingly, her claim fails even under a substantive due process analysis. Cty. of Sacramento, supra, 523 U.S. at 845-47, 118 S. Ct. at 1716-17, 140 L. Ed. 2d at 1057-58; see also Rivkin, supra, 143 N.J. at 366-71; Rezem Family Assocs., L.P. v. Borough of Millstone, 423 N.J. Super. 103, 114-15 (App. Div.), certif. denied, 208 N.J. 368 (2011).
Harz's procedural due process claim also falls short. Even assuming she was twice denied her right to a hearing before the Board, she was afforded an adequate process to challenge that denial through her Superior Court action. That is enough to satisfy the demands of the Constitution even though, as we have noted, it violates her substantive rights under the land use case law. See Rivkin, supra, 143 N.J. at 378 (finding that an action in lieu of prerogative writ provided an adequate state remedy to satisfy the requirements of due process).
We also shall not disturb the dismissal of Harz's equal protection claim. Relying upon Village of Willowbrook v. Olech, 528 U.S. 562, 564-65, 120 S. Ct. 1073, 1074-75, 145 L. Ed. 2d 1060, 1063-64 (2000), Harz argues "[w]hen the plaintiff is treated differently from everyone else, 'class-of-one' equal protection discrimination is established." We believe she reads Willowbrook too broadly. Justice Breyer clarified that the Court's decision did not consider the question as to whether a "simple and common instance of a faulty zoning decision would violate the Equal Protection Clause." Vill. of Willowbrook, supra, 528 U.S. at 565-66, 120 S. Ct. at 1075, 145 L. Ed. 2d at 1064 (Breyer, J., concurring). He noted that the evidence demonstrated that the zoning authority's disparate treatment of the plaintiffs was motivated by vindictiveness against them. Ibid. That ill will was an essential ingredient to the equal protection claim. Ibid.; see Olech v. Vill. of Willowbrook, 160 F.3d 386, 387 (7th Cir. 1998), aff'd, 528 U.S. 562, 564-65, 120 S. Ct. 1073, 1074, 145 L. Ed. 2d 1060, 1063 (2000). Harz has not presented comparable evidence of vindictiveness or ill will here.
Finally, we discern insufficient evidence in the record to support Harz's claim that Kavanaugh's initial approval of the permit on December 31, 2009, was willful misconduct.
Affirmed in part; reversed in part; and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION