H&R Grenville Fine Dining, Inc. v. Borough of Bay Head
| Decision Date | 19 December 2011 |
| Docket Number | Civil Action No: 3:10-cv-00325 (FLW) |
| Court | U.S. District Court — District of New Jersey |
| Parties | H&R GRENVILLE FINE DINING, INC., d/b/a the Grenville Hotel and Restaurant; HARRY TYPALDOS and RENEE TYPALDOS, Plaintiffs, v. BOROUGH OF BAY HEAD; JOHN BERKO; ARTHUR PETRACCO; MARY GLASS; JOHN & JANE DOES, A-Z, said names being fictitious and their legal status to be determined, and XYZ Entities (1-5) said names being fictitious and their legal status to be determined. Defendants. |
NOT FOR PUBLICATION [18]
Presently before the Court is a motion by Defendants the Borough of Bay Head ("the Borough"), John Berko ("Berko"), and Mary Glass ("Glass") (collectively "Defendants") for summary judgment.1 Defendants' motion arises out of a Complaint filed by Plaintiffs H&R Grenville Dining, Inc., d/b/a the Grenville Hotel and Restaurant ("the Grenville"), Harry Typaldos, and Renee Typaldos (collectively "Plaintiffs") alleging conspiracy under 42 U.S.C. § 1985(3) (Count One), violations of the Equal Protection Clause and of Procedural and/or Substantive Due Process under the Fourteenth Amendment (Count Two), Retaliation under 42U.S.C. § 1983 (Count Three), and Inverse Condemnation (Count Four). Specifically, Plaintiffs allege that Defendants engaged in conspiratorial, discriminatory, and retaliatory conduct in relation to, inter alia, the attachment and renewal of a liquor license at the Grenville. For the reasons set forth below, Defendants' motion is granted in its entirety.
The Grenville is a hotel and restaurant located at 345 Main Avenue, Bay Head, New Jersey. Compl. ¶ 6. The Grenville has functioned as a hotel since the early 1900s and, since 1987, has operated as a hotel and restaurant. Id. ¶¶ 15, 16. The Grenville is currently owned and operated by Harry and Renee Typaldos ("the Typaldos"). Compl. ¶¶ 7-8.
In or about 1987, the Borough rezoned the area in which the Grenville is located to be entirely residential. Id. ¶ 19. Indeed, at this time, the Grenville is the only preexisting, nonconforming structure and use in an area zoned exclusively residential. Defendants' Statement of Material Facts ("DSMF") ¶ 4; Plaintiffs' Responsive Statement of Facts ("PRSF") ¶ 4.
The Grenville also operates pursuant to a resolution adopted by the Borough's Planning Board on June 18, 1997. Certification of Brian W. McAlindin ("McAlindin Cert."), Ex. 28. In relevant part, the resolution approved an application by the Grenville to permit outdoor dining during limited hours. See id. at p. 1, 7-8, 12.
Defendant, the Borough, is a municipal corporation in the State of New Jersey. Compl ¶ 9. At all relevant times, Defendants Glass and Berko were, and remain, members of the governing body of the Borough, the Borough Council ("Borough Council" or "Council"). Id. ¶¶11-12. Glass also owns and operates a bed and breakfast located at 2 Twilight Road, Bay Head, New Jersey. Id. ¶ 12.
On or about December 27, 2003, the Typaldos entered into an agreement to purchase the Grenville from Joseph Milza ("Milza"). DSMF ¶ 8. In addition to owning the Grenville, Milza owned the Renault Winery in Egg Harbor, New Jersey, and, as a result, he was permitted to sell Renault Winery products, in their original packages, to the Grenville's guests under a Class A Plenary Winery License ("the Winery License"). DSMF ¶ 10; PRSF ¶ 10.
Importantly, Plaintiffs' acquisition of the Grenville did not include the Winery License. Id. ¶ 11. Because the Winery License was non-transferable, the Typaldos sought to purchase a Class C Plenary Retail Consumption License that would permit the Grenville to serve all types of alcohol. Id. ¶ 12. In that regard, Plaintiffs learned of a Liquor License previously issued by the Borough and held by Wacky's Inc., t/a The Bluffs ("Wacky's"). DSMF ¶ 12.2 On or about March 8, 2004, the Typaldos entered into an agreement to purchase the Liquor License from Wacky's, contingent upon obtaining the necessary approvals to transfer the Liquor License to Plaintiffs and to the Grenville's physical premises (known as a "person to-person and place-to-place transfer"). DSMF ¶ 13; PRSF ¶ 13.
Plaintiffs closed on the purchase of the Grenville on or about April 7, 2004. Thereafter, Plaintiffs filed a transfer application with the Borough to obtain possession of the Liquor Licenseand to attach it to the Grenville's premises. Id. ¶¶ 14-15. Plaintiffs' transfer application was met with resistence by residents and neighbors who retained an attorney to challenge the transfer. DSMF ¶¶ 15, 16; PRSF ¶¶ 15,16. In an August 5, 2004 memorandum, the objectors urged the Borough Council to deny the transfer of the Liquor License for a number of reasons including, in relevant part, that the "sale and consumption of alcoholic beverages at the Grenville would constitute the expansion of a pre-existing, nonconforming, commercial use in a residential zone which requires a use variance pursuant to N.J.S.A. 40:55D-70(d), which [the Grenville] has not even applied for." McAlindin Cert., Ex. 18, at 7. Shortly thereafter, the Borough Council, denied the transfer of the Liquor License because of doubts about the legality of the place-to-place transfer. DSMF ¶ 18; PRSF ¶ 18.
The Grenville appealed the Borough's denial of the transfer of the Liquor License to the State of New Jersey, Division of Alcoholic Beverage Control ("ABC"). Despite the Borough's denial, Plaintiffs waived the contingency provision and closed on the purchase of the Liquor License from Wacky's. DSMF ¶ 19. In addition, residents filed suit against the Grenville and Plaintiffs commenced a separate action pertaining to an easement held in common among Plaintiffs and several of the Grenville's neighbors. DSMF ¶¶ 19-21; PRSF ¶¶ 19-21.
In or around June 2006, Plaintiffs and the neighbors executed a voluntary global settlement agreement (the "Settlement Agreement" or "Agreement"). Id. ¶ 22. As part of the Agreement, Plaintiffs agreed to limit the scope and use of the Liquor License to wine only and to abide by other restrictions on the Grenville's operations. DSMF ¶ 24; PRSF ¶ 24. Plaintiffs also agreed that the Borough retained the power to enforce the terms of the Settlement Agreement as well as the conditions imposed upon the transfer of the Liquor License. DSMF ¶ 26; PRSF ¶ 26.
Plaintiffs further agreed that any citizen could report to the Borough any alleged violation of the terms of the Settlement Agreement, the conditions placed upon the Liquor License, or any other law, regulation or ordinance. Id. ¶ 26; Id.¶ 26. In exchange, the neighbors agreed not to oppose the Grenville's application to transfer the Liquor License. DSMF ¶ 25; PRSF ¶ 25. The effectiveness of the Settlement Agreement was contingent upon the Borough's approval of the transfer of the Liquor License, as limited by the Agreement. DSMF ¶ 24; PRSF ¶ 24.
Thereafter, Plaintiffs reapplied with the Borough to transfer and attach the Liquor License to the Grenville. DSMF ¶ 29; PRSF¶ 29. On or about August 15, 2006, the Council adopted Resolution No. 2006-57, approving a person-to-person and place-to-place transfer of the Liquor License subject to "[a]l terms and conditions" of the Settlement Agreement. DSMF¶ 29; McAlindin Cert., Ex. 31 – Schedule A, condition "q." The Resolution prohibited the Grenville from engaging in the sale, service, and/or delivery of wine until it "received all necessary land use approvals from the [Borough] Planning Board." McAlindin Cert., Ex. 31 – Schedule A, condition "p"; DSMF ¶ 31. Thus, it is undisputed that Plaintiffs could not begin to sell wine under the Liquor License until the conditions imposed on the License were satisfied. DSMF ¶ 31; PRSF ¶ 31. Once the conditions of the Liquor License were satisfied, the Grenville would have a Liquor License issued by the Borough physically attached to its location.3
Immediately following the Borough's adoption of Resolution No. 2006-57, the Grenville began to sell wine. DSMF ¶ 35. Sometime thereafter, Roger Mentz, a neighbor of the Grenville who was involved in the litigation that culminated in the Settlement Agreement, complained by letter or email to the Borough about the Grenville's failure to comply with condition "p" of the Settlement Agreement. McAlindin Cert., Ex. 4 at 48:20-49:21, 140:21 – 141:1, 145:14 – 146:3. Thereafter, in December 2006, the Borough notified Plaintiffs of their failure to satisfy conditions "p" and "q" of the Settlement Agreement by failing to receive all necessary land use approvals from the Borough Planning Board – conditions that the Borough considered a prerequisite to Plaintiffs being able to utilize the Liquor License. DSMF ¶ 36. These approvals related to the expansion / intensification of the Grenville's pre-existing, nonconforming use due to the Grenville's request for an expanded outdoor dining season and the attachment of the Liquor License to the property. DSMF ¶¶ 32-33; PRSF ¶¶ 32-33.4
Importantly, Plaintiffs do not appear to dispute that they did not receive the necessary land use approvals prior to serving wine at the Grenville; instead, Plaintiffs aver that based on a misunderstanding, they "were under the impression that selling wine was not geared toward a land use, but rather a time use issue since the Grenville had previously sold wine and champagne." PRSF ¶ 36. In other words, despite the specific language of the Resolution, Plaintiffs thought that they did not need approval from the Planning Board because Milza had previously sold wine at the Grenvile. Id. Moreover, Plaintiffs did not secure the necessary land use approvals from the Borough's Planning Board until October 2007, more than a year after theBorough adopted Resolution 2006-57 approving the transfer of the Liquor License...
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