2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-18-2003

Storino v. Point Pleasant Beach

Precedential or Non-Precedential: Precedential

Docket 01-4403

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Recommended Citation

"Storino v. Point Pleasant Beach" (2003). 2003 Decisions. Paper 683.

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PRECEDENTIAL

Filed March 18, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-4403

ANTHONY STORINO; FRANK STORINO,

Appellants

v.

BOROUGH OF POINT PLEASANT BEACH,

A MUNICIPAL ENTITY OF THE STATE

OF NEW JERSEY

On Appeal from the United States District Court

for the District of New Jersey

District Court Judge: The Honorable Anne E. Thompson

(D.C. No. 00-cv-3566)

Argued on September 10, 2002

Before: SLOVITER, RENDELL, and FUENTES,

Circuit Judges

(Opinion Filed: March 18, 2003)

Ben A. Montenegro [Argued]

Nicholas C. Montenegro

Michael E. Wilbert

Wilbert, Montenegro & Thompson,

P.C.

531 Burnt Tavern Road

P.O. Box 1049

Brick Town, New Jersey 08724

Attorneys for Appellants
Michael J. McKenna [Argued]

Hiering, Gannon and McKenna

29 Hadley Avenue

P.O. Box 5258

Toms River, New Jersey 08754-5258

Robert D. Ford

Secare, Delanoy, Martino & Ryan

616 Washington Street

Toms River, NJ 08753

Attorneys for Appellee

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

1. Although the District Court did not discuss the standing issue and

neither party raised the issue on appeal, we discussed it at oral

argument. Following oral argument, we instructed the parties to file

supplemental briefs limited to the issue of standing. 

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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 (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 judgement 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

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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 (1998); Great Southern Fire Proof Hotel Co.

v. Jones, 177 U.S. 449, 453 (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 (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. “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. 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 (1992); Township of Wall, 246 F.3d at 261.

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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 (1980); Hay v. Board

of Adjustment, 37 N.J. Super. 461, 464 (App. Div. 1955)).

They also contend that the New Jersey courts have

permitted municipalities to impose limitations upon non5
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 that

position (e.g. a present or proposed Borough law or

regulation requiring the owner of a non-conforming use

property to apply for a variance within a certain period of

time). Nor do they assert that they have immediate plans to

undertake any projects with respect to their property that

would necessitate an application for a variance. In fact, it is

possible that the Storinos will not have to request a

variance for a lengthy period of time, possibly even years.

The Storinos could also transfer their ownership interests

before they are required to apply for a variance and would

not suffer the injury they have described as a certainty.

Indeed, as became clear during oral argument, one cannot

describe how the Storinos will be injured without beginning

the explanation with the word “if.” The prospective

damages, described by the Storinos as certain, are, in

reality, conjectural.

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In sum, the Storinos cannot satisfy the constitutional

requirements for first party standing because, even

accepting as true the material allegations in their

Complaint and construing those facts in their favor, they

have not sufficiently alleged an injury in fact that is

particularized, actual, or imminent. The only injury the

Storinos have demonstrated is prospective and conjectural.

B. Third Party Standing

The Storinos present an alternative theory of standing for

their equal protection claim. They allege that the Ordinance

“excludes low and moderate income persons from [the

Borough] by removing rooming/boarding houses as

permitted uses within Point Pleasant Beach and by

removing hotels/motels from the marine commercial zone”

in violation of the equal protection clause. (Aa562 at ¶ 9)

During oral argument, the Storinos described this theory as

“stand[ing] in the shoes of the low income persons to assert

the rights of that class” who want to live in the housing the

Storinos provide in the Borough.2

This theory is similar to that presented by the plaintiffs

in Warth. In that case, the plaintiffs, various organizations

and individuals operating and living in Rochester, New

York, brought suit against an adjacent town claiming that

the town’s zoning ordinance effectively excluded persons of

low and moderate income from living there. 422 U.S. at

493. The individual plaintiffs in that case asserted standing

as members of the class of low and moderate income

2. The Storinos also asserted taxpayer standing during oral argument.

They cannot have standing merely on the basis of their status as

taxpayers. The Supreme Court has prohibited generalized grievances,

which prevents individuals from suing if their only injury is as a

taxpayer concerned with having the government follow the law. See

Lujan, 504 U.S. at 573-78; Warth, 422 U.S. at 499. At present, the only

acknowledged exception to this rule arises when a plaintiff challenges a

government expenditure as violating the establishment clause. See Erwin

Chemerinsky, Federal Jurisdiction § 2.3.5 (3d ed. 1999). The Storinos’

equal protection challenge does not fit within this recognized exception

to the prohibition against taxpayer suits, and they have not presented

any reason to expand upon this exception or create another. 

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persons. Id. at 502. The Supreme Court found that

allegation alone to be insufficient for standing purposes

because “the fact that these [plaintiffs] share attributes

common to persons who may have been excluded from

residence in the town is an insufficient predicate for the

conclusion that [plaintiffs] themselves have been excluded

. . . .” Id.

Here, the Storinos have conceded that they are not

members of the class of low and moderate income persons

described in their Complaint. Unlike the individual

plaintiffs in Warth, they do not even allege that they are

among the class of people whose equal protection rights

have been violated by the adoption of this Ordinance. Their

second asserted basis for standing, therefore, runs afoul of

the holding in Warth that “a plaintiff who seeks to challenge

exclusionary zoning practices must allege specific, concrete

facts demonstrating that the challenged practices harm

him, and that he personally would benefit in a tangible way

from the court’s intervention.” Id. at 508 (emphasis added).

In general, a litigant may assert only his own legal rights

or interests, and can not “rest a claim to relief on the legal

rights or interests of third parties.” Powers, 499 U.S. at

410. The Court has recognized a limited right of litigants to

bring actions on behalf of third parties only when the

following three criteria are met: (1) the litigant has suffered

an injury in fact giving him a sufficiently concrete interest

in the outcome of the issue; (2) the litigant has a close

relation to the third party; and (3) there exists some

hindrance to the third party’s ability to protect his own

interests. Id. at 410-11 (citing Craig v. Boren, 429 U.S. 190

(1976); Singleton v. Wulff, 428 U.S. 106 (1976)). 

This well-settled precedent makes clear that it is only

possible to find third party standing when there is also an

injury in fact alleged by the first party plaintiff. As was

explained above, the Storinos have not alleged an injury in

fact. Nonetheless, in their supplemental brief, the Storinos

claim that their “standing in the shoes of low income

people” argument is analogous to the Craig v. Boren form of

third party standing. 

In Craig, the operation of a state law inflicted injury upon

a beer vendor because she was “obliged either to heed the

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statutory discrimination, thereby incurring a direct

economic injury through the constriction of the buyers’

market, or to disobey the statutory command and suffer,

. . . ‘sanctions and perhaps loss of license.’ ” 429 U.S. at

194 (citations omitted). Accordingly, the Supreme Court

found that the beer vendor met the injury in fact

requirement for first party standing. Id. at 194-95. The

Court found that the beer vendor was also entitled to

“assert those concomitant rights of . . . [young males] that

would be ‘diluted or adversely affected’ should her

constitutional challenge fail and the statutes remain in

force.” Id. at 195. The Storinos argue that, like the beer

vendor who argued on behalf of third party beer buyers in

Craig, they should be permitted to litigate their claim “by

acting as advocates of the rights of third parties who seek

access to their market and function.” (Storinos’ Supp. Brief

at 9) The crucial distinction between the beer vendor

plaintiff in Craig and the property owner plaintiff in our

case is that the beer vendor alleged facts sufficient to meet

the injury in fact requirement for first party standing.

Craig, 429 U.S. at 194-95. As we have explained, the

Storinos have not met the injury in fact requirement.

Accordingly, the Storinos have mistakenly interpreted Craig

to stand for the proposition that where the plaintiff is

asserting a claim on behalf of those who would have

standing, he has standing imputed to him. 

C. State Law Claims

The Storinos also challenge the Ordinance on state law

grounds. As we have previously stated, the Storinos lack

standing to bring their federal claim. That lack of standing

affects the District Court’s ability to address supplemental

state law matters. As the applicable federal statute

provides, “. . . in any civil action of which the district courts

have original jurisdiction, the district courts shall have

supplemental jurisdiction over all other claims that are so

related to claims in the action within such original

jurisdiction that they form part of the same case or

controversy under Article III of the United State

Constitution.” 28 U.S.C. § 1367 (a) (emphasis added). But

because the Storinos lack standing, the District Court

9
lacked original jurisdiction over the federal claim, and it

therefore could not exercise supplemental jurisdiction. See

id.; see also United Mine Workers v. Gibbs, 383 U.S. 715,

725 (1966) (“The federal claim must have substance

sufficient to confer subject matter jurisdiction on the court”

in order for the court to exercise supplemental

jurisdiction.); MCI Telecommunications Corp. v. Teleconcepts,

Inc., 71 F.3d 1086, 1102 (3d Cir. 1995). Rather than

addressing the merits of the state claims as well as the

federal claim, the District Court should have dismissed the

Storinos’ Complaint in its entirety.

D. The Importance of the Standing Doctrine

The Supreme Court has recently reminded the federal

courts of the importance of the standing doctrine. In

remonstrating several Courts of Appeals for proceeding to

an easily-resolved merits question despite jurisdictional

objections, a practice referred to as creating “hypothetical

jurisdiction,” the Court stated that:

Much more than legal niceties are at stake here. The

statutory and (especially) constitutional elements of

jurisdiction are an essential ingredient of separation

and equilibration of powers, restraining the courts from

acting at certain times, and even restraining them from

acting permanently regarding certain subjects. For a

court to pronounce upon the meaning or the

constitutionality of a state or federal law when it has

no jurisdiction to do so is, by very definition, for a

court to act ultra vires. 

Steel Company, 523 U.S. at 101-2 (citations omitted). 

As is clear from the District Court’s opinion, which

focuses almost exclusively on the state law challenges to

the Ordinance, and the Storinos’ failure to allege a violation

of their federal constitutional rights, this is primarily a

state law case. An action challenging a municipal ordinance

on substantive and procedural state law grounds is

normally brought in state court where the judges have

greater expertise in resolving such an action. The standing

doctrine, derived from the “case or controversy”

requirement in Article III of the United States Constitution,

10
is intended to preserve the separation of powers between

the coordinate branches of the federal government. And in

this case, it also serves to preserve and protect the principle

of dual sovereignty. There is much at stake in the task of

ensuring proper jurisdictional bases for each and every

claim — particularly when courts are called upon to review

a state or local legislative enactment. The Supreme Court

has noted that “zoning laws and their provisions, long

considered essential to effective urban planning, are

peculiarly within the province of state and local legislative

authorities. They are, of course, subject to judicial review in

a proper case. But citizens dissatisfied with provisions of

such laws need not overlook the availability of the normal

democratic process.” Warth, 422 U.S. at 508 n. 18. That is

not to say that we will not exercise proper jurisdiction over

such matters, but only that we will exercise care in

determining that our jurisdiction is, in fact, proper.

III. Conclusion

For the aforementioned reasons, we will vacate the entry

of judgment and remand to the District Court for it to

dismiss the Storinos’ Complaint for lack of jurisdiction.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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