Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3118-24 DAVID FALOBA, as attorney-in-fact for SAMUEL JEFFREY FALOBA, and ARLENE S. FALOBA, Plaintiffs-Appellants, v. ANTOINETTE VENTO, TOWNSHIP OF TOMS RIVER, NEW JERSEY, TOWNSHIP OF TOMS RIVER BOARD OF ADJUSTMENT, NEW JERSEY, and NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendants-Respondents. ________________________________ Argued September 17, 2026 – Decided October 26, 2026 Before Judges DeAlmeida, Chase and Augostini. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0038-25. Richard C. Leahey, Jr. argued the cause for appellants (Gasiorowski & Holobinko, and Richard C. Leahey Jr. LLC, attorneys; R.S. Gasiorowski, on the briefs). Michael B. York argued the cause for respondent Antoinette Vento (Novins York Jacobus & Dooley, attorneys; Michael B. York, on the brief). Kelsey A. McGuckin-Anthony argued the cause for respondent Township of Toms River (Dasti McGuckin McNichols Connors Anthony & Buckley, attorneys; Kelsey A. McGuckin-Anthony, of counsel and on the brief). Christopher J. Dasti argued the cause for respondent Township of Toms River Board of Adjustment (Dasti & Staiger, PC, attorneys; Christopher J. Dasti, of counsel and on the brief; Brandon E. DeJesus, on the brief). Danielle Paterno, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Jennifer Davenport, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Danielle Paterno, on the brief). PER CURIAM Plaintiff David Faloba, as attorney-in-fact for his parents, Samuel Jeffrey Faloba and Arlene S. Faloba, appeals from four April 25, 2025 Law Division orders collectively dismissing with prejudice his action in lieu of prerogative writs seeking declaratory and injunctive relief and damages relating to the A-3118-24 2 issuance of municipal permits authorizing the installation of a pool on his parents' neighbor's property. We affirm. I. Plaintiff's parents own real property on a barrier island in defendant Township of Toms River (Township). The parcel abuts a lagoon leading to Barnegat Bay. There is a bulkhead along the lagoon on the property. Defendant Antoinette Vento owns an adjacent parcel with a bulkhead along the lagoon. The properties are in a residential zone, and each is improved with a home. In 2024, Vento applied to defendant Toms River Township Board of Adjustment (Board) for bulk variances to build an inground plunge pool on her property. The pool was a permitted accessory use in the residential zone. Vento sought several setback variances, including one to install the pool within seven feet of the rear lot line, where at least eight feet is required by ordinance. At the Board hearing, Vento presented the testimony of Matthew Hockenbury, an engineer. He testified Vento proposed installing the pool 8.3 feet from her bulkhead, which complies with the ordinance, but not with a regulation promulgated by defendant Department of Environmental Protection (DEP), pursuant to the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -51, requiring the pool be at least fifteen feet from the bulkhead. A-3118-24 3 Hockenbury testified Vento was not obligated to obtain an individual permit from DEP to allow the improvement within fifteen feet of the bulkhead because she could proceed under the agency's permit-by-rule process if she: (1) established "there is no alternative to locating the proposed . . . accessory structures [within fifteen] feet landward of the bulkhead"; (2) provided an engineering certification demonstrating that, after the installation of the pool, the bulkhead could be replaced, if necessary, within eighteen inches of the existing bulkhead; and (3) recorded a conservation restriction stating any reconstruction of the bulkhead shall be within eighteen inches of the existing bulkhead. See N.J.A.C. 7:7-5.6(a)(5).1 1 At all times relevant to this appeal, the permit-by-rule requirements for installation of Vento's pool were codified at N.J.A.C. 7:7-4.2(a)(5). Effective January 20, 2026, the applicable permit-by-rule requirements were recodified at N.J.A.C. 7:7-5.6(a)(5) and renamed the permit-by-certification requirements. See 56 N.J.R. 1282(a), 1297 (Aug. 5, 2024) (chart indicating proposal to recodify N.J.A.C. 7:7-4.2 permit-by-rule requirements as N.J.A.C. 7:7-5.6 "general permit-by-certification" with "no change in requirements"); 58 N.J.R. 247(a) (Jan. 20, 2026) (adopting proposal). In light of the nomenclature used when this matter was pending in the motion court, we refer to the permit-by-rule requirements in this opinion. Prior to the recodification, permits-by-rule, including for swimming pools constructed on a lot with an existing bulkhead, were self-executing. See N.J.A.C. 7:7-4.22 (2015). Now, pursuant to N.J.A.C. 7:7-3.3(b), applicants seeking a permit governed by N.J.A.C. 7:7-5.6 must complete an online submission, potentially by an engineer or architect, which returns an automatic authorization from DEP to conduct their desired activity. A-3118-24 4 Hockenbury testified the engineering certification and conservation restriction are customarily provided at "the time of the building review." At the times relevant to this appeal, N.J.A.C. 7:7-3.3(a) provided "[a]n activity that meets the requirements of a permit-by-rule may be conducted without prior [DEP] approval, except that activities under the permits-by-rule at N.J.A.C. 7:7- 4.4, 4.5, and 4.9 may be conducted only after [DEP] has issued the waterfront development permit that is a necessary condition of those permits-by-rule." 47 N.J.R. 1392(a) (adopted July 6, 2015). Thus, Vento did not require DEP approval prior to initiating construction of the pool if the variance was approved. During cross-examination, Hockenbury admitted Vento's parcel periodically floods with tidal waters, some of which flow to the area behind the bulkhead on the Falobas' property. He testified the pool would be installed at an elevation of 3.9 feet to accommodate expected flooding, and railroad ties could be installed along the property line to ameliorate the flow of tidal waters from Vento's property to the Faloba parcel. Plaintiff appeared at the hearing as an objector. He testified his parents' property experiences flooding from tidal waters on an approximately monthly basis. According to plaintiff, during flooding, waves arose in the lagoon, struck Vento's dock, and sprayed onto the Faloba property. In his opinion, an elevated A-3118-24 5 pool would exacerbate the flow of water from Vento's parcel to his parents' property during flooding. An expert engineer, Timothy Rioux, also testified the Faloba parcel is prone to tidal flooding. He opined the installation of Vento's pool would increase the extent to which flood waters flow from her property to the Faloba parcel. He suggested changes to Vento's construction plans that could, in his opinion, mitigate the flow of water from Vento's property. Plaintiff's counsel argued Vento was required to obtain a permit from DEP authorizing installation of the pool prior to applying for variances from the Board. Vento's attorney disputed this assertion, arguing the Board lacked jurisdiction to consider whether the project required DEP permitting and whether it complied with the agency's regulations. He agreed Vento would construct a retaining wall along the property line to address flooding, as suggested by plaintiff's expert. On May 23, 2024, the Board adopted a resolution granting the variances. The approval was conditioned on "the review and approval of all other agencies exercising jurisdiction in this matter, either by affirmative action by such other agency or by required passage of time in lieu thereof" and "any other A-3118-24 6 conditions/permits, which may be imposed or be required by . . . [s]tate . . . law." Plaintiff did not appeal from the May 23, 2024 resolution granting the variances. On July 9, 2024, a Toms River Township zoning officer issued a development permit for Vento's pool. On July 23, 2024, plaintiff filed an appeal with the Board challenging issuance of the zoning permit. He argued the zoning officer improvidently granted the permit because Vento had not complied with the DEP permit-by-rule regulations, as required by the Board's resolution approving the variances. In addition, he argued the Board erred by not conditioning the approval of the variances on Vento obtaining a general permit from DEP authorizing construction of the pool. He argued the proposed development could not qualify under the permit-by-rule regulation because the pool would be constructed in a floodway and within fifteen feet of the bulkhead on the Faloba property, and the recording of a conservation restriction for the Faloba property required plaintiff's consent. On July 24, 2024, plaintiff reported to DEP Vento "was trying to get a permit from the town for an in[]ground pool without the required setback . . . DEP would require" and he "intend[ed] to exhaust all available means to prevent the construction." Plaintiff also informed DEP that "a lawyer" contacted the agency about Vento's proposed pool and submitted photographs and documents. A-3118-24 7 The following day, a DEP employee created a record stating the agency had no pending permit applications relating to Vento's property. On August 2, 2024, a DEP employee visited Vento's property. He observed no construction activities and noted in agency records: "At this time, no further actions to be taken and incident to be closed." The same day, an engineer produced a letter stating Vento's pool was proposed to be installed 9.3 feet from the bulkhead on her property and soil boring had been conducted in the area. The engineer opined, "[s]hould the bulkhead need replacement in the future, the future bulkhead can be reconstructed in the same location as the existing bulkhead." On August 21, 2024, the Township building department issued Vento a building permit for the pool. Plaintiff thereafter supplemented his appeal to the Board to include a challenge to the issuance of the building permit. By letter dated September 5, 2024, the Board's counsel notified plaintiff's counsel the Board was not authorized to issue a stay of a construction project. On September 26, 2024, Vento recorded with the Ocean County Clerk a conservation restriction pursuant to DEP's permit-by-rule requirement limiting reconstruction of the bulkhead on her property to within eighteen inches of the existing bulkhead. A-3118-24 8 On October 24, 2024, the Board held a hearing on plaintiff's appeal of the issuance of the permits. Plaintiff argued Vento did not provide the engineer's certification and conservation restriction until after the permits were issued. In addition, he argued the engineer's certification was invalid because plaintiff's expert opined the bulkhead on Vento's property could not be reconstructed within eighteen inches of its current location and the pool will also be within fifteen feet of the bulkhead on his parents' parcel. Vento's counsel argued the Board lacked jurisdiction to review the issuance of municipal permits. On November 4, 2024, Vento started construction of the pool. On November 14, 2024, the Board adopted a resolution finding it lacked jurisdiction to hear plaintiff's appeal of the issuance of the permits and the issues he raised were res judicata because they were decided when the Board granted the variance. Plaintiff did not appeal from the Board's resolution. On December 20, 2024, plaintiff notified DEP Vento's pool was being constructed ten feet from the bulkhead in violation of "their permits." On January 6, 2025, plaintiff filed an action in lieu of prerogative writs in the Law Division seeking declaratory and injunctive relief. He alleged the Township erroneously issued the permits because Vento's pool would be within fifteen feet of the Falobas' bulkhead and she would be unable to record a conservation A-3118-24 9 restriction with respect to that bulkhead without his consent. In addition, plaintiff alleged even if Vento could comply with the permit-by-rule requirements, the Township erred when it issued the permits before she did so. Plaintiff alleged defendants violated his parents' equal protection and due process rights by arbitrarily favoring Vento and failing to follow zoning and land use laws, and effectuated an inverse condemnation of the Faloba property. He also alleged the pool was a common law nuisance. The court entered an order to show cause which sought an order: (1) voiding the permits issued to Vento; (2) declaring the permit-by-rule regulations do not allow the construction of Vento's pool; (3) ceasing all further construction of the pool pending issuance of a general CAFRA permit by DEP; (4) declaring both properties to be in a floodway; and (5) awarding him punitive damages, as well as attorney's fees and costs. Defendants opposed the order to show cause. The Township, the Board, and DEP filed separate cross-motions seeking dismissal of the complaint. On March 13, 2025, a DEP employee visited Vento's property. The employee subsequently made the following entry in DEP's records: I visited the site and met property owner, John Vento.[2] The property is on a legally existing bulkheaded 2 John Vento appears to be Antoinette Vento's spouse. A-3118-24 10 lagoon. The pool installed is [eight] feet from the bulkhead. Mr. Vento sent an engineering certification for the pool to my email. Review of County [C]lerk records showed that Mr. Vento filed a conservation restriction for the pool installation. It was determined that installation of the pool met the requirements of permit-by-rule 2 – 'development of a single-family home or duplex and/or accessory development on a bulkheaded lagoon lot' of the [Coastal Zone Management (CZM)] rules. It also met the requirements of permit-by-rule 9 – 'general construction activities in a tidal flood hazard area' of [Flood Hazard Area Control Act] rules. No wetlands were observed on site. No violation found. Suggest closure. Engineering cert, conservation restriction, and picture in attachments. On March 14, 2025, a DEP employee approved closure of the matter. Nothing in the record suggests DEP informed plaintiff of its decision. On April 25, 2025, the court issued an oral decision denying the relief sought in plaintiff's order to show cause and granting defendants' cross-motions to dismiss the complaint with prejudice. The court found plaintiff sought, in effect, an order compelling DEP to enforce its regulations to preclude the construction of Vento's pool. The court concluded relief was not available in A-3118-24 11 the Law Division because Rule 2:2-3(a)(2) vests the sole jurisdiction to review State agency inaction in this court.3 In addition, the court concluded the Township and the Board do not have the authority to determine if DEP regulations apply to a proposed development or if a property owner complied with the permit-by-rule requirements for a particular project. That authority, the court found, rests solely with DEP. The court also denied plaintiff's request for leave to amend the complaint to seek a writ of mandamus against DEP officials. It found such an amendment would be futile, given the absence of jurisdiction, and DEP's discretionary authority to enforce its regulations. The court found plaintiff did not allege viable civil rights claims. 3 DEP did not notify the parties or the motion court it had determined the pool construction complied with the permit-by-rule requirements and closed the matter. During arguments on the motions, all counsel, including DEP's counsel, and the court proceeded on the assumption DEP had not acted in response to plaintiff's report. DEP did not reveal its March 14, 2025 determination until it filed its brief with this court on January 12, 2026. It included in its appendix documents detailing the agency's determination which were not before the motion court without moving to supplement the record on appeal. See R. 2:5- 5(b). Plaintiff thereafter moved to supplement the record. We granted the motion. Plaintiff also moved for leave to amend its notice of appeal to challenge DEP's March 14, 2025 determination, stay the appeal, and remand the matter to the agency for a hearing. We denied those aspects of plaintiff's motion. A-3118-24 12 The court entered four orders dated April 25, 2025: (1) denying plaintiff's order to show cause and request for declaratory and injunctive relief; (2) granting the Township's cross-motion and dismissing the complaint with prejudice; (3) granting the Board's cross-motion and dismissing the complaint with prejudice; and (4) granting DEP's cross-motion and dismissing the complaint with prejudice. As noted above, Vento did not cross-move to dismiss the complaint. The orders, however, dismissed the claims against Vento. On July 17, 2025, after plaintiff filed a notice of appeal, the motion court issued a written amplification of its decision pursuant to Rule 2:5-1(d). In that decision, the court, still not informed DEP had determined the pool construction complied with the permit-by-rule requirements, found plaintiff was unsatisfied with DEP's inaction and his only avenue to challenge the inaction of a state agency was to file an appeal with this court. In addition, the court reiterated its conclusion the Board did not have jurisdiction to determine which, if any, DEP permits were needed to construct the pool. The court concluded plaintiff did not state a claim upon which relief could be granted with respect to the township's issuance of the permits before Vento fulfilled the permit-by-rule requirements because Vento cured the deficiencies after issuance of the permits. It found plaintiff's nuisance claim A-3118-24 13 was founded on his allegation the pool's construction violated DEP regulations and zoning laws relating to the issuance of permits. Because those claims were rejected by the court, plaintiff's nuisance claim also failed. The court concluded plaintiff's equal protection and due process claims were unfounded. It court found plaintiff's claims were based on the Board's decision not to permit his expert to offer testimony Vento was required to obtain a DEP general permit to construct the pool. Given the Board lacked jurisdiction to determine whether a DEP permit was necessary to construct the pool, the court found no constitutional deprivation resulted from its decision to preclude testimony on the issue. Because plaintiff established none of his claims, the court rejected his demand for damages, attorney's fees, and costs. On appeal, plaintiff argues: (1) the motion court erred as a matter of law when it concluded plaintiff "did not have a legal right to force Toms River Construction Officials to enforce the law[;]" (2) we should issue a writ of mandamus compelling DEP to determine if the construction of Vento's pool complies with the agency's regulations; (3) Vento's production of a letter from an engineer and recording of a conservation restriction did not moot plaintiff's claims; (4) he alleged a valid cause of action for deprivation of his parents' civil rights pursuant to 42 U.S.C. § 1983, and the New Jersey Civil Rights Act A-3118-24 14 (NJCRA), N.J.S.A. 10:6-1 to -2; and (5) he alleged a viable cause of action for nuisance. II. We review a trial court order dismissing claims under Rule 4:6-2(e) de novo. See Stop & Shop Supermarket Co. v. Cnty. of Bergen, 450 N.J. Super. 286, 290 (App. Div. 2017) (quoting Teamsters Loc. 97 v. State, 434 N.J. Super. 393, 413 (App. Div. 2014)). Under the Rule, we owe no deference to the motion judge's conclusions. Rezem Fam. Assocs. v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011). Our "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citing Rieder v. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)). However, "[t]he complaint must be searched thoroughly 'and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021) (quoting Printing Mart, 116 N.J. at 746). "A pleading should be dismissed if it states no basis for relief and discovery would not provide one." Rezem Fam. Assocs., 423 N.J. Super. at 113-14 (citing Camden A-3118-24 15 Cnty. Energy Recovery Assoc. v. N.J. Dep't of Env't Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd, 170 N.J. 246 (2001)). A. Plaintiff's Claim for a Writ of Mandamus To Compel DEP to Enforce Its Regulations. "In 1973, the Legislature enacted CAFRA 'to protect the unique and fragile coastal zones of the State.'" In re Protest of Coastal Permit Program Rules, 354 N.J. Super. 293, 309 (App. Div. 2002) (quoting In re Egg Harbor Assocs. (Bayshore Centre), 94 N.J. 358, 364 (1983)). CAFRA empowers DEP "to regulate land use within the coastal zone for the general welfare." Egg Harbor Assocs., 94 N.J. at 364. DEP fulfills this duty, in part, by promulgating regulations which identify the activities subject to general permit review, and establishing criteria for the CAFRA permitting process. N.J.S.A. 13:19-5.1; see also N.J.A.C. 7:7-1.1 to -29.10 (CZM Rules). For regulated activities in coastal zones, the CZM Rules set out the conditions and requirements for permits-by-rule, N.J.A.C. 7:7-4, general permits, N.J.A.C. 7:7-6, and other permit categories. The required permit depends on the type of regulated activity, its location, purpose, impact, and the sensitivity of the area, among other factors. See generally, N.J.A.C. 7:7-4 to -8, -20. A-3118-24 16 It is undisputed Vento's waterfront, bulkheaded property is subject to CAFRA. See N.J.S.A. 13:19-4 (defining coastal area); N.J.S.A. 13:19-5(b) (requiring permit for development proposed within 150 feet of the mean high- water line). Vento and plaintiff, while agreeing it was necessary for Vento to obtain a permit to construct the pool, disagree with respect to the type of permit the project required. Plaintiff argued Vento required either a general permit or a permit-by-rule before municipal permits could be issued or any construction could begin. Vento argued she could construct the pool without agency approval, provided she produced the documents necessary to satisfy the permit- by-rule requirements in N.J.A.C. 7:7-4.2(a)(5). She argued municipal permits could be issued, and construction could commence prior to her producing the documents necessary to satisfy the permit-by-rule requirements. When Township officials issued permits to Vento based on her representation the project complied with N.J.A.C. 7:7-4.2(a)(5), plaintiff sued, alleging the permits were invalid and demanded writs of mandamus compelling Township officials and the DEP to require Vento to obtain a general CAFRA permit to construct the pool. We have reviewed the record and find no error in the motion court's conclusion it lacked jurisdiction to issue the relief plaintiff sought with respect A-3118-24 17 to DEP. "[E]very proceeding to review the action or inaction of a state administrative agency [shall] be by appeal to the Appellate Division." Hosp. Ctr. at Orange v. Guhl, 331 N.J. Super. 322, 329 (App. Div. 2000) (second alteration in original) (emphasis omitted) (quoting Pascucci v. Vagott, 71 N.J. 40, 52 (1976) (citing R. 2:2-3(a) and -4)). While Rule 2:2-3(a)(2) refers only to agency actions, it is well-settled our "jurisdiction extends not only to [s]tate agency action but also agency inaction." Pressler & Verniero, Current N.J. Court Rules, cmt. 3.1 on R. 2:2-3(a)(2) (2026); see also Toll Bros., Inc. v. Dep't of Env't Prot., 242 N.J. Super. 519, 530 (App. Div. 1990) (describing the process to challenge alleged agency inaction). The motion judge correctly concluded the Law Division lacked jurisdiction to order DEP to enforce its regulations and either declare Vento's proposed pool ineligible to proceed under the permit-by-rule requirements or issue a general permit for the construction of the pool. Plaintiff conceded this point in his merits brief: Faloba now agrees that the [t]rial [c]ourt below was correct on the issue of Law Division jurisdiction and the fact of law that enforcement jurisdiction against the []DEP for their inaction in enforcing CAFRA [r]egulations against Vento is in the Appellate Division. The law regarding the jurisdiction of the Appellate Division to hear direct appeals from the "[i]naction" of A-3118-24 18 a [s]tate [a]dministrative [a]gency or [s]tate [a]dministrative [o]fficer is now clear. [(Footnote omitted).] Moreover, plaintiff's claim for relief against DEP was rendered moot while the matter was pending before the motion court. DEP inspected Vento's property and determined the construction of the pool complied with the permit - by-rule requirements and other regulations. This is precisely the relief plaintiff sought by way of a writ of mandamus to the agency. It is well-settled that "[m]oot or academic appeals are generally dismissed." Advance Elec. Co v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166 (App. Div. 2002). We "will not decide a case if the issues are hypothetical, a judgment cannot grant effective relief, or there is no concrete adversity of interest between the parties." Ibid. "An issue is considered 'moot when our decision . . . can have no practical effect on the existing controversy. '" Wisniewski v. Murphy, 454 N.J. Super. 508, 518 (App. Div. 2018) (quoting Redd v. Bowman, 223 N.J. 87, 104 (2015) (alteration in original)). At the time the motion court dismissed the complaint, DEP had done exactly what plaintiff sought to compel it to do by writ: determine whether the construction of Vento's pool complied with environmental permitting requirements. If plaintiff disagreed with DEP's March 14, 2025 determination, after he received notice of A-3118-24 19 that determination, he could have filed a notice of appeal with this court pursuant to Rule 2:2-3(a).4 B. Plaintiff's Claim for a Writ of Mandamus To Compel Township Officials To Enforce the Law. DEP's determination also rendered moot plaintiff's request for a writ of mandamus compelling Township officials to revoke the permits issued to Vento. The crux of plaintiff's claim against Township officials was they issued the variance, zoning permit, and building permit without first ensuring Vento had obtained the necessary permits from DEP to construct the pool. On March 14, 2025, DEP determined Vento satisfied the permit-by-rule requirements for construction of the pool and other regulations. Thus, at the time the motion court dismissed the complaint, any alleged error by Township officials was ameliorated. DEP's determination was rendered even though the Township officials issued the zoning and building permits to Vento before she produced the documents required by the permit-by-rule regulations. This was consistent with 4 Our denial of plaintiff's motion to amend the notice of appeal in this matter to include an appeal from the DEP's determination did not preclude him from filing a separate notice of appeal from the determination. A-3118-24 20 N.J.A.C. 7:7-3.3(a), which provides an improvement of the type undertaken by Vento may be initiated without prior DEP approval through the permit-by-rule process. C. Plaintiff's NJCRA and 42 U.S.C. § 1983 Civil Rights Claims. The NJCRA provides in relevant part: Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion 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 Legislature modeled the NJCRA on the Federal Civil Rights Act, 42 U.S.C. § 1983, which establishes civil actions for the deprivation of federal constitutional and statutory rights. Tumpson v. Farina, 218 N.J. 450, 474 (2014). That statute provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or A-3118-24 21 causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . [42 U.S.C. § 1983.] The NJCRA "is intended to provide what § 1983 does not: a remedy for the violation of substantive rights found in our State Constitution and laws. " Harz v. Borough of Spring Lake, 234 N.J. 317, 330 (2018) (quoting Tumpson, 218 N.J. at 474); see also Perez v. Zagami, LLC, 218 N.J. 202, 212 (2014) (holding the NJCRA "was intended to address potential gaps in remedies available under New Jersey law but not cognizable under the federal civil rights law . . . ."). The NJCRA's "broad purpose" is to "assur[e] a state law cause of action for violations of state and federal constitutional rights and to fill any gaps in state statutory anti-discrimination protection." Owens v. Feigin, 194 N.J. 607, 611 (2008). Unlike § 1983, however, the NJCRA does not apply to violations of procedural rights. Harz, 234 N.J. at 330 n.4. As the Court explained in Harz, "a substantive right is '[a] right that can be protected or enforced by law; a right of substance rather than form[,]'" whereas a procedural right is "[a] right that derives from legal or administrative procedure; a right that helps in the A-3118-24 22 protection or enforcement of a substantive right." Id. at 332 (quoting Black's Law Dictionary 1437, 1438 (9th ed. 2009) (alteration in original)). Given the similarities between the statutes, federal precedents interpreting § 1983 are instructive when construing corresponding provisions of the NJCRA. Tumpson, 218 N.J. at 474. Plaintiff has the burden of identifying both the substantive right of which his parents have been deprived and the State actor who caused the deprivation. Filgueiras v. Newark Pub. Schs., 426 N.J. Super. 449, 468 (App. Div. 2012). Both NJCRA and § 1983 provide a "means of vindicating substantive rights" created by State or federal Constitutions or laws, but they are "not a source of rights" themselves. Gormley v. Wood-El, 218 N.J. 72, 98 (2014). They are not intended to create substantive rights, but rather to ensure a remedy for violations of existing rights. Tumpson, 218 N.J. at 474-75; Perez, 218 N.J. at 212. Thus, the NJCRA does not list the substantive rights, the deprivation of which may form the basis of a cause of action under the statute. Harz, 234 N.J. at 330. The Court has, however, recognized the term "substantive right[s]" in the NJCRA "is broad in its conception." Tumpson, 218 N.J. at 473. In Harz, the Court listed examples of "familiar" substantive rights that fall under the NJCRA, including: (1) "the 'unalienable rights' of '. . . acquiring, A-3118-24 23 possessing, and protecting property,' N.J. Const. art. I, ¶ 1; see also U.S. Const. amend. XIV; [and] . . . the right to not have private property taken for public use without just compensation, U.S. Const. amend. V"; (2) "[o]ther substantive rights . . . identified in our constitutional jurisprudence, such as: the right to privacy . . ."; and (3) "other rights . . . conferred by statute." 234 N.J. at 332. To establish a cause of action under the NJCRA for the denial of a substantive right created by statute, a plaintiff must satisfy the three-part test established in Tumpson, 218 N.J. at 475, and "recalibrate[d]" in Harz, 234 N.J. at 331. Under Tumpson, a court must examine: (1) whether the statute on which an NJCRA claim is based was "intended to confer a 'benefit'" on the plaintiff; (2) whether "the statutory right . . . is not 'so vague [or] amorphous' that its enforcement would strain judicial competence; and (3)" whether the statute "unambiguously impose[s] a binding obligation" on the government actors. 218 N.J. at 475, 477 (alterations in original) (quoting Blessing v. Freestone, 520 U.S. 329, 340-41 (1997)). The Supreme Court refined the first prong of the Tumpson test in Harz. There, the Court explained: "Because our description of substantive rights in Tumpson may not be sufficiently precise, we use this occasion to provide additional guidance." Harz, 234 N.J. at 332. The Court, applying the holding A-3118-24 24 in Gonzaga University v. Doe, 536 U.S. 273, 283-84 (2002), held that "it is rights, not the broader or vaguer 'benefits' or 'interests,' that may be enforced under" the NJCRA, so the test is whether the Legislature intended to create a state right "enforceable by the person directly benefitted" by the statute on which an NJCRA claim is based. Id. at 331 (quoting Gonzaga, 536 U.S. at 283-84). In Gonzaga, the Court clarified its precedents because some courts were "allowing plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls within the general zone of interest that the statute is intended to protect . . . . " 536 U.S. at 283. The Court rejected this approach, emphasizing a statutory violation was not an automatic civil rights violation under § 1983. Ibid. Instead, "whether a statutory violation may be enforced through § 1983 'is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute.'" Ibid. (quoting Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 508 n.9 (1990)). To confer a civil right enforceable under § 1983, a statute must use "'rights-creating' language critical to showing the requisite congressional intent to create new rights" or impart an "'individual entitlement' that is enforceable under § 1983," plus the statute's text must unmistakably focus on the "persons benefited" rather than the entity regulated. Id. at 284, 287. "But even where a A-3118