New Jersey Chinese Community Center v. Township of Warren

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-4020
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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

______________

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

Before: AMBRO, RESTREPO, and NYGAARD, Circuit Judges

(Filed: October 6, 2017)
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OPINION*
RESTREPO, Circuit Judge

*
This disposition is not an Opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
 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

1
We write exclusively for the parties and therefore set forth only those facts that are
necessary for our disposition.

2
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 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
3
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

decision, the Superior Court noted that plaintiffs had failed to appeal to the Zoning Board

from the zoning officer’s denial of the CO, and hence there was not any final agency

action. The Court also declined to address plaintiffs’ constitutional challenges inasmuch

as plaintiffs had not even applied for the requested use variance to permit them to use the

Building for a student dormitory, let alone been rejected. On appeal to the Appellate

Division of New Jersey’s Superior Court, by per curiam Opinion decided July 22, 2016,

the Court affirmed the denial of relief substantially for the reasons expressed by the trial

judge. See N.J. Chinese Cmty. Ctr. v. Warren Twp. Constr. Office, 2016 WL 3943396

(N.J. Super. Law Div. July 22, 2016).

Well prior to the Superior Court’s July 22, 2016 disposition of plaintiffs’ appeal,

they initiated this civil action in the District Court on October 8, 2015, and on November

12, 2015 they filed their Amended Complaint. Thereafter, appellees filed their motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(1), or alternatively Rule 12(b)(6). Following
4
oral argument, the District Court granted appellees’ motion and dismissed appellants’

Amended Complaint without prejudice. Plaintiffs then filed a motion for reconsideration

and to reinstate the Complaint, and the Court denied that motion.

Shortly thereafter, appellants filed a motion to reinstate their Complaint requesting

to reopen the case. The District Court held oral argument, and for the reasons set forth on

the record at oral argument, denied appellants’ request to reopen the case. 2 Appellants

appeal that Order denying plaintiffs’ motion to reopen the case.

II.3

Appellees argue that because appellants declined to avail themselves of available

administrative review from the land-use decisions that appellants challenge here, the

finality rule requires that we affirm the District Court’s denial of the motion to reopen the

case because the issues raised by appellants never became ripe for adjudication. We

agree.4

“It is well established that, in cases involving land-use decisions, a property owner

does not have a ripe, constitutional claim until the zoning authorities have had ‘an

2
Appellants have failed to provide a transcript of the oral argument on plaintiffs’ motion
to reopen the case.
3
The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate
jurisdiction under 28 U.S.C. § 1291.
4
“We have held that ripeness of issues of adjudication is a matter we must raise and
examine independently of the parties’ wishes.” Suburban Trails, Inc. v. N.J. Transit
Corp., 800 F.2d 361, 365 (3d Cir. 1986). “[T]he question of ripeness is generally viewed
as a question of law.” Felmeister v. Office of Att’y Ethics, 856 F.2d 529, 535 n.8 (3d Cir.
1988).
5
opportunity to arrive[] at a final, definitive position regarding how [they] will apply the

regulations at issue to the particular land in question.’” Sameric Corp. of Del., Inc. v.

City of Phila., 142 F.3d 582, 597 (3d Cir. 1998) (citing Taylor Inv., Ltd v. Upper Darby

Twp., 983 F.2d 1285, 1291 (3d Cir. 1993)) (internal quotation marks and citation

omitted); see Taylor Inv., 983 F.2d at 1291 (quoting Williamson Cnty. Reg’l Planning

Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 191 (1985)). Thus, property

owners’ constitutional claims based upon land-use decisions are not properly before us

where the owners are denied permits by the initial decision-makers but do not avail

themselves of available, subsequent procedures. Sameric Corp., 142 F.3d at 597; see

Acierno v. Mitchell, 6 F.3d 970, 974-75 (3d Cir. 1993) (owner failed to appeal denial of

building permit to the Board of Adjustment or seek a variance); Taylor, 983 F.2d at 1289

(plaintiffs failed to appeal to the Township Zoning Board from the revocation of a use

permit); Midnight Sessions, Ltd. v. City of Phila., 945 F.2d 667, 686 (3d Cir. 1998)

(holding that plaintiff’s claim was not ripe where it did not appeal the denial of a CO to

the review board). Indeed, in Sameric we “again stress[ed] the importance of the finality

requirement and our reluctance to allow the courts to become super land-use boards of

appeals.” Sameric, 142 F.3d at 598.

Here, appellants did not appeal the denial of the CO to the Zoning Board, and the

denial was therefore not the Township’s final determination of appellants’ rights. See,

e.g., Sameric Corp., 142 F.3d at 597. Moreover, as New Jersey’s Superior Court noted in

declining to address the constitutional challenges raised by plaintiffs, they never applied
6
for the requested use variance to permit them to use the Building for a student dormitory,

let alone received a final determination by the Township, utilizing the Township’s appeal

process, regarding appellants’ requested land use. Judicial review of the Township’s

denial of appellants’ requested use of their land “would be inappropriate because it would

permit [appellants] to have denied the [Township] the opportunity to render a final

decision” regarding the challenged actions. See Sameric, 142 F.3d at 598.5

III.

Accordingly, for the foregoing reasons, we affirm the Order of the District Court

denying appellants’ motion to reopen the case.6

5
The fact that appellants may have abandoned their Township appeal or, in other words,
that appellants’ claims are not simply “premature,” see Taylor, 983 F.2d at 1287, but
rather never will ripen, does not affect the disposition of this case on the basis of the
finality rule. See, e .g., Sameric, 142 F.3d at 598 (noting that our Court was affirming,
based on the finality rule, the grant of summary judgment on a claim alleging the City
improperly denied a demolition permit, despite plaintiff ensuring its claim never could be
ripe because it abandoned its appeal from the initial denial of the permit after plaintiff
sold the property).
6
Because we affirm the denial of the motion to reopen based on the finality rule, we need
not address the additional grounds raised by appellees in support of an affirmance,
including the Rooker-Feldman doctrine, res judicata, and claim preclusion.
7