Storino v. Borough of Point Pleasant Beach

• Citation: 322 F.3d 293
• Decision Date: 18 March 2003
• Docket Number: No. 01-4403.,01-4403.
• Parties: Anthony STORINO; Frank Storino, Appellants v. BOROUGH OF POINT PLEASANT BEACH, A Municipal Entity of the State of New Jersey.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

322 F.3d 293

Anthony STORINO; Frank Storino, Appellants v. BOROUGH OF POINT PLEASANT BEACH, A Municipal Entity of the State of New Jersey.

No. 01-4403.

United States Court of Appeals, Third Circuit.

Argued on September 10, 2002.

Filed March 18, 2003.

COPYRIGHT MATERIAL OMITTED

Ben A. Montenegro [Argued], Nicholas C. Montenegro, Michael E. Wilbert, Wilbert, Montenegro & Thompson, P.C., Brick Town, NJ, for Appellants.

Michael J. McKenna [Argued], Hiering, Gannon and McKenna, Toms River, NJ, Robert D. Ford, Secare, Delanoy, Martino & Ryan, Toms River, NJ, for Appellee.

Before: SLOVITER, RENDELL, and FUENTES, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge.

In this case, Anthony and Frank Storino (the "Storinos"), owners of at least one rooming house in the Borough of Point Pleasant Beach, New Jersey (the "Borough"), are challenging Municipal Zoning Ordinance 2000-11 (the "Ordinance") on one federal ground and several state law grounds. The Ordinance, which was adopted by the Borough in June of 2000, removes the rooming/boarding house use within certain Resort Residential zones and the hotel/motel use within the Marine Commercial zone of the Borough. The Storinos maintain that they have been injured by the adoption of the Ordinance because their current rooming/boarding house and hotel/motel uses will be "zoned out of existence" in time and because they will have to seek a variance for any modifications to their property in the future. The Storinos' federal claim is that by removing these uses within certain zones in the Borough, the Ordinance excludes low and moderate income persons in violation of the Equal Protection Clause. The Storinos contend that they have standing to bring this claim because (1) they have first party standing, or (2) they have third party standing on behalf of low and moderate income persons.¹ After addressing the merits of each of the Storinos' claims, the District Court granted summary judgment to the Borough.

We conclude that the Storinos do not have first party standing because they have not stated an injury in fact that is particularized and imminent. See Society Hill Towers Owners' Assoc. v. Rendell, 210 F.3d 168, 175-76 (3d Cir.2000). Because the Storinos have not suffered an injury in fact, they also do not have third party standing. See Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). We find that because standing is a jurisdictional requirement, the District Court should have dismissed the Storinos' federal equal protection claim. See ACLU-NJ v. Township of Wall, 246 F.3d 258, 261 (3d Cir.2001). Moreover, absent jurisdiction over the federal claim, the District Court did not have supplemental jurisdiction over the Storinos' state law claims, and thus should have dismissed those claims as well. See 28 U.S.C. § 1367(a). Accordingly, we will vacate the entry of judgment and remand this case to the District Court to dismiss the Storinos' Complaint for lack of jurisdiction.

I. Background

The Storinos are residents and property owners in the Borough. On May 2, 2000, the Ordinance was introduced for first reading at the Borough Council meeting. After reviewing the proposed Ordinance, the Point Pleasant Beach Planning Board unanimously recommended its adoption. A copy of the proposed Ordinance was then published. On June 6, 2000, after the proposed Ordinance was introduced for a second reading and public hearing at the Borough Council meeting, the Council voted to adopt the Ordinance by a vote of 3-2. Notice of adoption of the Ordinance was published in the local newspaper. The Storinos then filed this action challenging the Ordinance. In addition to their equal protection claim, the Storinos challenge the substance of the Ordinance and the procedural manner in which it was adopted on state law grounds.

II. Discussion

We begin with a discussion of the standing issue because "[o]n every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it." Society Hill Towers, 210 F.3d at 175 (citing Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct. 690, 44 L.Ed. 842 (1900)). "If plaintiffs do not possess Article III standing, both the District Court and this Court lack subject matter jurisdiction to address the merits of plaintiffs' case." Township of Wall, 246 F.3d at 261 (citing Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Morris v. Horn, 187 F.3d 333, 344 (3d Cir.1999)).

For the purpose of determining standing, we must accept as true all material allegations set forth in the complaint, and must construe those facts in favor of the complaining party. See Warth, 422 U.S. at 501, 95 S.Ct. 2197. "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Id. at 498, 95 S.Ct. 2197. Standing involves both constitutional and prudential limitations on federal court jurisdiction. This Court has summarized the constitutional requirements as follows:

(1) the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;

(2) there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court; and

(3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Society Hill Towers, 210 F.3d at 175-76 (quoting Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 484-85 (3d Cir.1998)). Plaintiffs bear the burden of proving standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Township of Wall, 246 F.3d at 261.

A. Injury In Fact

We will begin with the first of the constitutional standing requirements — injury in fact. The Storinos allege in the Complaint that they are residents of Point Pleasant Beach, New Jersey. (Aa560 at ¶ 3) They maintain that they have ownership interests in various properties located within the Borough of Point Pleasant Beach. (Aa561 at ¶¶ 1, 2) Without further explanation in the Complaint, the Storinos assert that "[a]s a result of the [Borough's] adoption of Ordinance 2000-11, [they] have suffered damages." (Aa562 at ¶ 10)

These allegations alone do not demonstrate that the Storinos have suffered an injury in fact. Although they own property in the Borough, they do not assert in the Complaint that the property they own falls within the scope of the Ordinance. Construing the facts in favor of the Storinos, however, we will assume as much. Even so, the Storinos have not asserted that their ownership interests have actually been affected by the adoption of the Ordinance. In fact, the Storinos admitted that they have not yet incurred damages as a result of the adoption of the Ordinance. (Aa688-89, 721-22) Moreover, the Storinos' attorney conceded during oral argument that they have not yet suffered an injury.

Nonetheless, the Storinos assert that they are certain to experience prospective damages. (Storinos' Reply Brief at 13-16; Storinos' Supp. Brief at 5-6) They explain that the effect of the Ordinance is to make all existing rooming/boarding houses and hotels/motels in the Borough "non-conforming uses." (Storinos' Reply Brief at 13) The Storinos concede that under the Municipal Land Use Law, N.J.S.A. § 40:55D-1 et seq., non-conforming uses are deemed to have acquired a vested right to continue in their current form regardless of new zoning provisions. Id. They assert, however, that the New Jersey courts have held that non-conforming uses should be reduced to conformity as quickly as is compatible with justice. Id. at 13-14 (citing Belleville v. Parrillo's, Inc., 83 N.J. 309, 416 A.2d 388 (1980); Hay v. Board of Adjustment, 37 N.J.Super. 461, 464, 117 A.2d 650 (App.Div.1955)). They also contend that the New Jersey courts have permitted municipalities to impose limitations upon non-conforming uses, including requiring a property owner to apply for a variance in order to convert an existing property into a rooming or boarding house or a hotel or motel, and requiring owners of such uses to apply for a variance to expand their structure or operation. (Storinos' Supp. Brief at 5-6) (citing N.J.S.A. § 40:55D-70(d)). The Storinos maintain that the criteria for a variance are stringent and the costs associated with an application are "significant." Id. Thus, the Storinos argue that they are prospectively damaged by the Ordinance because it is certain that their current rooming/boarding house and hotel/motel uses will be "zoned out of existence over time and any modification/enlargements of said use[s] would require use variance approval from the Zoning Board of Adjustment." (Storinos' Reply Brief at 15)

This allegation of future damage is insufficient to accord the Storinos standing to assert their federal claim. The first problem is that this allegation was not stated in the Complaint. Even if it were, however, it would not demonstrate injury in fact for standing purposes because it is conjectural. See Society Hill Towers, 210 F.3d at 175-76. The Storinos will not suffer injury if their properties are allowed to continue in their present state as nonconforming uses. Although the Storinos describe the prospective necessity of a variance application as a certainty, they do not cite any relevant authority for...