Reedy v. Collingswood, (3rd Cir. 2006)

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NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N o . 05-3490

GAYLE REEDY, BETH BURNS, KATHERINE SORG, ELENA R. FLYNN,

MAURICE CORNELIS, KATHY CORNELIS, BARBARA N. FURMAN,

RICHARD JAMES, SANDRA McCAUSLAND, ELOLA SOKOLOFF,

M A R C IA SHAPIRO, RAYMOND L. VILLANO,

A p p e lla n ts ,

v. B O R O U G H OF COLLINGSWOOD.

O n Appeal From the United States District Court

for the District of New Jersey

(N o . 04-cv-04079)

D istric t Judge: Honorable Jerome B. Simandle

S u b m itte d Under Third Circuit LAR 34.1(a)

S e p te m b e r 26, 2006

B e f o re : RENDELL, CHAGARES and ROTH, Circuit Judges.

(F ile d : November 7, 2006)

O P IN I O N OF THE COURT

C H A G A R E S , Circuit Judge.

In this appeal we consider whether the District Court abused its discretion in d e n yin g preliminary injunctive relief to plaintiffs-appellants Gayle Reedy, Beth Burns, K a th e rin e Sorg, Elena R. Flynn, Maurice Cornelis, Kathy Cornelis, Barbara N. Furman, R ich a rd James, Sandra McCausland, Elola Sokoloff, and Marcia Shapiro (collectively " p la in tif f s" ) in favor of the defendant-appellee Borough of Collingswood, New Jersey (th e "Borough"). We will affirm.

I.

Because we write solely for the benefit of the parties, we recite only those facts n e c e ss a ry to decide this appeal.1 P la in tif f s are the owners of owner-occupied duplex properties2 located in the B o ro u g h . Plaintiffs claim to be doubly aggrieved by certain actions undertaken by the B o ro u g h vis § 227-2 violates their rights to procedural due process. In e n a ctin g the PMC, which requires plaintiffs to meet certain aesthetic and safety standards in maintaining their rental properties and to submit to regular inspections in furtherance th e re o f , the Borough adopted some provisions of a model code known as the BOCA N atio n al Property Maintenance Code, but specifically excluded the model code's p ro v is io n s for appeal and review of code enforcement actions. Therefore, if an inspection le a d s to a Notice of Violations and Order to Correct ("Notice"), the duplex owner faces a H o b s o n 's choice: either cure the cited code violation or do nothing and wait until the B o ro u g h takes further action. The latter course, however, could result in the receipt of a s u m m o n s and complaint requiring an appearance before the Collingswood Municipal C o u rt. If convicted of violating the PMC, a duplex owner risks incurring large fines and in c a rc e ra tio n for up to ninety days in county jail.

A lth o u g h plaintiffs are all duplex owners, the record reflects that only plaintiff E len a R. Flynn ("Flynn") received a Notice.3 The inspection of Flynn's property re v e a le d , inter alia, that portions of the duplex and the garage needed to be painted, the c h im n e y needed repointing, weeds and grass in the backyard required maintenance, and g a rb a g e located in back of the garage had to be removed. Flynn chose to undergo the n e c es s a ry repairs after unsuccessfully attempting to appeal the Notice.

S e c o n d and apart from the PMC, plaintiffs assert that, in enacting certain zoning a m e n d m e n ts, the Borough rendered duplexes non-conforming uses while it continued to p e rm it other types of multi-family dwellings, such as garden apartments and mid- and h ig h -ris e apartments, as well as single family homes, bed-and-breakfast facilities, and f u n e ra l homes. Plaintiffs claim that this differing treatment violates their rights to s u b s ta n tiv e due process and equal protection. Plaintiffs acknowledge that their duplexes q u a lif y as pre-existing uses.

Plaintiffs filed an eight-count Complaint seeking monetary damages and injunctive r e lie f . In Count One, plaintiffs allege that, by failing to provide for an appeals process w ith in the PMC, and consequently a reasonable opportunity to be heard, the Borough v io la te d their rights of procedural due process and equal protection under the Fifth and F o u r te e n th Amendments. In Count Two, plaintiffs claim the Borough's differing tre a tm e n t of duplexes as non-conforming uses is without legitimate rational basis and v io la te s their substantive due process and equal protection rights. Count Three alleges th a t the Borough employed improperly trained Collingswood firemen to conduct the in s p e c tio n s and to enforce the ordinances. Count Four alleges that the Borough s e le c tiv e l y enforced the PMC and formulated policies and practices intended to harass p la in tif f s into abandoning their properties. In Count Five, plaintiffs allege that the in s p e c tio n process violated their rights to be free from unreasonable searches. In Count S ix , plaintiffs allege violations of their rights to free speech claiming that the Borough re ta lia te d against them for speaking out on matters of public concern. Count Seven a lle g e s that by subjecting the duplexes to regulation, registration and inspection as a re n ta l unit, the Borough has impaired the plaintiffs' rights to define their families.

Finally, in Count Eight, plaintiffs allege that the ordinances pertaining to inspection and re g u la tio n of their properties were invalid exercises of municipal authority under the New J e rs e y Constitution.

On September 14, 2004, the District Court entered an Order to Show Cause in re sp o n se to plaintiffs' application for a preliminary injunction. Plaintiffs sought to enjoin th e Borough from utilizing the PMC without the addition of the model code's appeal and r e v ie w procedures and to require the Borough to provide said appeals process.

A d d itio n a lly, plaintiffs sought to enjoin the Borough from treating duplexes as n o n c o n f o rm in g uses within its zoning ordinance. In response, the Borough cross-moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6).

By Order dated June 22, 2005, the District Court granted in part the Borough's m o tio n to dismiss and denied plaintiffs' application for a preliminary injunction.

Specifically, the District Court dismissed Counts Two, Three, Four, Five, Six, Seven and E ig h t. As for Count One, the District Court held that plaintiffs' due process claim s u rv iv e d the Borough's motion to dismiss. On July 18, 2005, plaintiffs timely filed a N o tic e of Appeal.

II.

T h e District Court's dismissal in part of plaintiffs' constitutional and state law c la im s embodied in Counts Two through Eight does not constitute a final judgment.

Despite plaintiffs' inclusion of these claims in the Notice of Appeal, the finality doctrine p re c lu d e s appellate review of the District Court's order dismissing these claims since p ro c e ed in g s related to Count One of the Complaint are ongoing. See 28U.S.C. § 1291; D rin k w a ter v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir. 1990). Although we will n o t consider the merits of plaintiffs' substantive claims on appeal, our review of the d e n ia l of injunctive relief at this juncture is appropriate. See 28U.S.C. § 1292(a).

A denial of a preliminary injunction is reviewed to determine whether there has b e e n an abuse of discretion, an error of law, or a clear mistake on the facts. Shire US Inc. v . Barr Labs., Inc., 329 F.3d 348, 352 (3d Cir. 2003). Legal conclusions are reviewed de n o v o . Id. Factual determinations made as a prerequisite to the issuance of an injunction a re reviewed under the clearly erroneous standard, and are upheld unless a finding of fact " `is completely devoid of a credible evidentiary basis or bears no rational relationship to th e supporting data.'" Id. (quoting American Home Prods. Corp. v. Barr Labs., Inc., 834 F .2 d 368, 371 (3d Cir. 1987)). "An abuse of discretion is a clear error of judgment and n o t simply a different result which can arguably be obtained when applying the law to the f a c ts of the case." Hohe v. Casey, 868 F.2d 69, 70 (3d Cir. 1989) (quotation omitted).

III.

P r e lim in a ry injunctive relief is "an extraordinary remedy, which should be granted o n ly in limited circumstances." Frank's GMC Truck Center, Inc. v. General Motors C o rp ., 847 F.2d 100, 102 (3d Cir. 1988). A preliminary injunction is warranted when the m o v a n t demonstrates each of the following four elements: (1) a likelihood of success on th e merits; (2) irreparable injury if relief is not granted; (3) no greater harm to the n o n m o v in g party from the relief sought; and (4) that the public interest favors such relief.

Morton v. Beyer, 822 F.2d 364, 367 (3d Cir. 1987).

Plaintiffs seek to restrain the Borough from engaging in maintenance inspections u n d e r the PMC unless and until it adopts the model code's procedures for appeal and re v iew of code violations. The District Court concluded, however, that plaintiffs failed to s h o w the irreparable harm necessary to warrant such injunctive relief, reasoning that none o f the plaintiffs have received municipal court summonses or complaints or have incurred f in e s or faced incarceration as a result of the inspection process.

The irreparable harm element requires a "clear showing of immediate irreparable in ju ry." Hohe, 868 F.2d at 72 (emphasis added) (quoting ECRI v. McGraw-Hill, Inc., 8 0 9 F.2d 223, 226 (3d Cir. 1987)). We agree with the District Court that plaintiffs have f a iled to demonstrate the requisite immediacy as none of the plaintiffs are presently c o n f ro n te d with the imposition of penalties pursuant to the inspection process. In the e v e n t that any plaintiff is faced with fines or incarceration in the future, he or she may re n e w a request for preliminary injunction at that time.

P la in tif f s also argue on appeal that they have sustained irreparable financial d a m a g e because, facing the threat of criminal prosecution, they made repairs to their p ro p e rtie s which may not have been necessary given a review by a board of appeals.

They argue that this out-of-pocket loss is a special circumstance which supports the grant o f a preliminary injunction. We disagree.

We have noted that "[t]he irreparable harm requirement is met if a plaintiff d e m o n stra tes a significant risk that he or she will experience harm that cannot adequately b e compensated after the fact by monetary damages. This is not an easy burden." Adams v . Freedom Forge Corp., 204 F.3d 475, 484-85 (3d Cir. 2000) (citations omitted). Here, p la in tif f s can pursue their challenge to the constitutionality of the ordinance and seek d a m a g e s for their allegedly unnecessary repairs through Count One of their Complaint, w h ic h the District Court left intact. Plaintiffs' financial losses can therefore be rectified b y an award of monetary damages if they prevail at trial. See Morton v. Beyer, 822 F.2d a t 372 ("The claimed injury testified to . . . is purely economic in nature and thus c o m p e n s a b le in money. [While] [t]his Court has recognized that the fact that the payment o f monies is involved does not automatically preclude a finding of irreparable injury[,] we h a v e emphasized that the injury must be of a peculiar nature, so that compensation in m o n e y cannot atone for it."); In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1 1 3 7 , 1145 (3d Cir. 1982) (noting that "we have never upheld an injunction where the c la im e d injury constituted a loss of money, a loss capable of recoupment in a proper a c tio n at law").

Accordingly, we conclude that the District Court did not abuse its discretion in d e n yin g preliminary injunctive relief.

VI.

P la in tif f s additionally seek to enjoin the Borough from treating duplexes as n o n c o n f o rm in g uses. In Count Two, plaintiffs allege that the Borough acted in an a rb itra ry and capricious manner in enacting the ordinance which treats duplexes as n o n c o n f o rm in g uses, thereby depriving plaintiffs of substantive due process and equal p ro te c tio n of the law. Plaintiffs do not allege that as landlords they have a fundamental in te re st in conducting their businesses or that they fall within a constitutionally suspect c la s s .

To warrant injunctive relief based on Count Two, plaintiffs bear the burden to d e m o n s tra te a likelihood of success on the merits, which here entails a showing that the o rd in a n c e is arbitrary and unreasonable, and bears no rational relationship to a legitimate s ta te interest. See Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974); Doe v. City of B u tle r, Pennsylvania, 892 F.2d 315, 318 (3d Cir. 1989). It is well-established that " f e d e r a l courts accord substantial deference to local government in setting land use p o lic y, and that only where a local government's distinction between similarly situated u s e s is not rationally related to a legitimate state goal, or where the goal itself is not le g itim a te , will a federal court upset a local government's land use policy determination." C o n g re g a tio n Kol Ami v. Abington Township, 309 F.3d 120, 125 (3d Cir. 2002).

In dismissing Count Two, the District Court considered the Borough's stated r e a so n s for treating duplexes differently from other forms of residential uses. Those re a so n s are: (1) multi-family dwellings cause a more dense population; (2) single family h o m e s promote more of a community feeling; (3) single family homes reduce traffic c o n g e stio n ; and (4) duplexes historically have fallen into a greater state of disrepair th ro u g h the passage of time. The District Court concluded that the above-stated g o v e rn m e n ta l interests were legitimate and rationally related to the zoning ordinance.

Controlling population density, traffic congestion and blight associated with h o u s in g deterioration are legitimate governmental goals. See Village of Belle Terre, 416 U .S . at 9 ("A quiet place where yards are wide, people are few, and motor vehicles are re stric ted are legitimate guidelines in a land-use project addressed to family needs. This g o a l is a permissible one . . . . The police power is not confined to elimination of filth, s te n c h , and unhealthy places."); Doe v. City of Butler, Pennsylvania, 892 F.2d 315, 320 (3 d Cir. 1989). Because we agree with the District Court that plaintiffs cannot d e m o n s tra te a likelihood of success on the merits of their equal protection and due p ro c e ss challenges to the zoning ordinance, we conclude that the District Court did not a b u se its discretion in denying plaintiffs' preliminary injunction.

In addition, inasmuch as plaintiffs' duplexes are valid, pre-existing nonc o n f o rm in g uses, they are protected by New Jersey's Municipal Land Use Law (" M L U L " ), N.J. Stat. Ann. § 40:55D-68 which states, "Any nonconforming use or s tru c tu re existing at the time of the passage of an ordinance may be continued upon the lo t or in the structure so occupied and any such structure may be restored or repaired in th e event of partial destruction thereof." The MLUL "permits a use to continue in d e f in ite ly after it has been rendered nonconforming by a zoning amendment." Do-Wop C o rp . v. City of Rahway, 168 N.J. 191, 198 (2001). Because the Borough has not taken a n y adverse action against plaintiffs with respect to the use of their properties as d u p lexe s, we further conclude that plaintiffs have failed to establish the irreparable harm n e c e s s a ry to support a preliminary injunction.

IV.

A c c o rd in g ly, we will affirm the District Court's Order of June 22, 2005 denying th e preliminary injunction.

1 The District Court had jurisdiction over plaintiffs' federal constitutional and p e n d a n t state law claims pursuant to 28U.S.C. §§ 1331, 1343(3), 1367. We have ju ris d ic tio n under 28U.S.C. § 1292(a)(1) ("the courts of appeals shall have jurisdiction of a p p e a ls from: (1) Interlocutory orders of the district courts of the United States . . . g ra n tin g , continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve o r modify injunctions").

2 Each duplex property has two separate living quarters, one occupied by an owner (a n d plaintiff in this action) and the other occupied by a tenant.

3 The record indicates that a Frances Morris also received a Notice, but Morris is n o t a Plaintiff in this action. During the inspection of her property, Morris informed the in s p e c to r that she had already contracted with a painter to perform exterior painting and w a s waiting for him to begin work. She was cited nonetheless. The record reflects that other unnamed persons were also cited for violations and th a t their respective failures to cure resulted in court proceedings. John Amet, the C o llin g s w o o d Fire Chief, stated that "[o]n at least four separate occasions, the C o llin g s w o o d Municipal Court judge has disagreed with and dismissed my notice of v io la tio n complaints which I filed as a result of property maintenance code inspections. I a m aware that the municipal court has disagreed with other inspectors and found against them in municipal court proceedings." Appendix 194 (Certification of John Amet ¶ 6).

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