712 Fed.Appx. 196 (3rd Cir. 2017), 16-4020, New Jersey Chinese Community Center v. Township of Warren

Docket Nº:16-4020
Citation:712 Fed.Appx. 196
Opinion Judge:RESTREPO, Circuit Judge
Party Name:NEW JERSEY CHINESE COMMUNITY CENTER; Jimmy Hwang, Appellants v. TOWNSHIP OF WARREN; Township of Warren Tax Assessor’s Office; Jeffrey B. Lehrer; John T. Chadwick; Jonathan Heiss; Edward Kerwin, Jr.; Adriana McKenna; John Does 1-10; ABC Entities 1-10
Attorney:Cynthia M. Hwang, Esq., Somerset, NJ, for Appellants. Timothy P. Beck, Esq., Difrancesco Bateman Coley Yospin Kunzman Davis & Lehrer, Warren, NJ, for Township of Warren; Township of Warren Tax Assessor’s Office; Jeffrey B. Lehrer; John T. Chadwick; Jonathan Heiss; Edward Kerwin, Jr.; Adriana McKe...
Judge Panel:Before: AMBRO, RESTREPO, and NYGAARD, Circuit Judges
Case Date:October 06, 2017
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 196

712 Fed.Appx. 196 (3rd Cir. 2017)

NEW JERSEY CHINESE COMMUNITY CENTER; Jimmy Hwang, Appellants

v.

TOWNSHIP OF WARREN; Township of Warren Tax Assessor’s Office; Jeffrey B. Lehrer; John T. Chadwick; Jonathan Heiss; Edward Kerwin, Jr.; Adriana McKenna; John Does 1-10; ABC Entities 1-10

No. 16-4020

United States Court of Appeals, Third Circuit

October 6, 2017

NOT PRECEDENTIAL

Submitted under Third Circuit LAR 34.1(a) May 8, 2017

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

Page 197

Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-15-cv-07368) District Judge: Honorable Peter G. Sheridan

Cynthia M. Hwang, Esq., Somerset, NJ, for Appellants.

Timothy P. Beck, Esq., Difrancesco Bateman Coley Yospin Kunzman Davis & Lehrer, Warren, NJ, for Township of Warren; Township of Warren Tax Assessor’s Office; Jeffrey B. Lehrer; John T. Chadwick; Jonathan Heiss; Edward Kerwin, Jr.; Adriana McKenna; John Does 1-10; ABC Entities 1-10

Before: AMBRO, RESTREPO, and NYGAARD, Circuit Judges

OPINION[*]

RESTREPO, Circuit Judge

Appellants, New Jersey Chinese Community Center ("the Center") and Jimmy Hwang ("Hwang"), filed this lawsuit against the Township of Warren ("Township") and various municipal officers challenging land-use decisions which they allege unlawfully prevented them from using their property in the manner they desired. Appellants allege violations of their federal and state rights, including violations under the First, Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution. The District Court granted appellees’ motion to dismiss, and appellants subsequently filed a motion to reopen the case. By Order entered October 26, 2016, the District Court denied the motion to reopen, and appellants appeal from that Order. For the reasons which follow, we affirm.

I.1

Hwang alleges he was the Principal of the Elite Preparatory Academy, a private school owned and operated by the Center. In June 2009, the Warren Township Zoning Board of Adjustment ("Zoning Board") granted Hwang a variance permitting construction of a single-family residence on his property ("the Property"). A single-family dwelling is defined in the Township’s zoning ordinance as a detached building designed for and occupied exclusively by one family.

Hwang submitted plans to the Township for a single family dwelling ("the Building"), the plans were approved, and the Building was constructed in accordance with the plans. In September 2014, Hwang transferred ownership interest in the Property to the Center.

In October 2014, Hwang applied for a Certificate of Occupancy ("CO") for the Building. At about the same time, the Center submitted to the Township’s tax assessor’s office an application for tax exemption on the Property because it wanted to use the Building, among other things, as a student dormitory and for other school functions. In November 2014, a zoning officer denied Hwang’s request for a CO on the basis that the intended usage was inconsistent with the use granted by the Zoning Board and that if the Building was

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going to be used as a dormitory, a proper use variance would be required.

Instead of appealing that decision to the Zoning Board, appellants filed in the Law Division of the Superior Court of New Jersey a Verified Complaint In Lieu of Prerogative Writs for an Order to Show Cause why injunctive relief should not be granted against the Warren Township Construction Office and seeking an Order compelling the Township to issue a CO for the Property to be used as a single-family home. On March 6, 2015, following a hearing on the Order to Show Cause, the Superior Court denied the requested injunctive relief, noting that Hwang had transferred the Property interest to the Center and that the Center had still not withdrawn its application for tax-exempt status. The Court noted, however, that plaintiffs would be permitted to proceed with their verified Complaint in the Superior Court as if it were filed without an Order to Show Cause. The Superior Court also clarified that for the Court to consider ordering the requested relief: (1) the Property interest would have to be transferred back to Hwang because plaintiffs’ counsel had represented that the Property was to be Hwang’s residence; and (2) the Center would also have to withdraw its application for tax-exempt status.

The parties then filed cross-motions for summary judgment in the Superior Court, and on May 29, 2015, the Superior Court granted the Township’s motion for summary judgment and denied plaintiffs’ cross-motion because plaintiffs had not exhausted administrative remedies and because they had not demonstrated the intention to make conforming use of the Property sufficient to justify zoning approval. In support of its...

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