                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-7-2006

Reedy v. Collingswood
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3490




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                                                  NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT

                        _______________

                           No. 05-3490


GAYLE REEDY, BETH BURNS, KATHERINE SORG, ELENA R. FLYNN,
 MAURICE CORNELIS, KATHY CORNELIS, BARBARA N. FURMAN,
  RICHARD JAMES, SANDRA McCAUSLAND, ELOLA SOKOLOFF,
         MARCIA SHAPIRO, RAYMOND L. VILLANO,

                            Appellants,

                                v.

               BOROUGH OF COLLINGSWOOD.
                   ____________________

          On Appeal From the United States District Court
                     for the District of New Jersey
                           (No. 04-cv-04079)
           District Judge: Honorable Jerome B. Simandle

            Submitted Under Third Circuit LAR 34.1(a)
                       September 26, 2006

     Before: RENDELL, CHAGARES and ROTH, Circuit Judges.

                    (Filed: November 7, 2006)
                      __________________

                    OPINION OF THE COURT
                      __________________
CHAGARES, Circuit Judge.

       In this appeal we consider whether the District Court abused its discretion in

denying preliminary injunctive relief to plaintiffs-appellants Gayle Reedy, Beth Burns,

Katherine Sorg, Elena R. Flynn, Maurice Cornelis, Kathy Cornelis, Barbara N. Furman,

Richard James, Sandra McCausland, Elola Sokoloff, and Marcia Shapiro (collectively

“plaintiffs”) in favor of the defendant-appellee Borough of Collingswood, New Jersey

(the “Borough”). We will affirm.

                                             I.

       Because we write solely for the benefit of the parties, we recite only those facts

necessary to decide this appeal.1

       Plaintiffs are the owners of owner-occupied duplex properties2 located in the

Borough. Plaintiffs claim to be doubly aggrieved by certain actions undertaken by the

Borough vis à vis their duplexes. First, plaintiffs claim that the Borough’s Property

Maintenance Code (“PMC”) § 227-2 violates their rights to procedural due process. In

enacting the PMC, which requires plaintiffs to meet certain aesthetic and safety standards



       1
         The District Court had jurisdiction over plaintiffs’ federal constitutional and
pendant state law claims pursuant to 28 U.S.C. §§ 1331, 1343(3), 1367. We have
jurisdiction under 28 U.S.C. § 1292(a)(1) (“the courts of appeals shall have jurisdiction of
appeals from: (1) Interlocutory orders of the district courts of the United States . . .
granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve
or modify injunctions”).
       2
        Each duplex property has two separate living quarters, one occupied by an owner
(and plaintiff in this action) and the other occupied by a tenant.

                                             2
in maintaining their rental properties and to submit to regular inspections in furtherance

thereof, the Borough adopted some provisions of a model code known as the BOCA

National Property Maintenance Code, but specifically excluded the model code’s

provisions for appeal and review of code enforcement actions. Therefore, if an inspection

leads to a Notice of Violations and Order to Correct (“Notice”), the duplex owner faces a

Hobson’s choice: either cure the cited code violation or do nothing and wait until the

Borough takes further action. The latter course, however, could result in the receipt of a

summons and complaint requiring an appearance before the Collingswood Municipal

Court. If convicted of violating the PMC, a duplex owner risks incurring large fines and

incarceration for up to ninety days in county jail.

       Although plaintiffs are all duplex owners, the record reflects that only plaintiff

Elena R. Flynn (“Flynn”) received a Notice.3 The inspection of Flynn’s property

revealed, inter alia, that portions of the duplex and the garage needed to be painted, the




       3
         The record indicates that a Frances Morris also received a Notice, but Morris is
not a Plaintiff in this action. During the inspection of her property, Morris informed the
inspector that she had already contracted with a painter to perform exterior painting and
was waiting for him to begin work. She was cited nonetheless.

        The record reflects that other unnamed persons were also cited for violations and
that their respective failures to cure resulted in court proceedings. John Amet, the
Collingswood Fire Chief, stated that “[o]n at least four separate occasions, the
Collingswood Municipal Court judge has disagreed with and dismissed my notice of
violation complaints which I filed as a result of property maintenance code inspections. I
am 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).

                                              3
chimney needed repointing, weeds and grass in the backyard required maintenance, and

garbage located in back of the garage had to be removed. Flynn chose to undergo the

necessary repairs after unsuccessfully attempting to appeal the Notice.

       Second and apart from the PMC, plaintiffs assert that, in enacting certain zoning

amendments, the Borough rendered duplexes non-conforming uses while it continued to

permit other types of multi-family dwellings, such as garden apartments and mid- and

high-rise apartments, as well as single family homes, bed-and-breakfast facilities, and

funeral homes. Plaintiffs claim that this differing treatment violates their rights to

substantive due process and equal protection. Plaintiffs acknowledge that their duplexes

qualify as pre-existing uses.

       Plaintiffs filed an eight-count Complaint seeking monetary damages and injunctive

relief. In Count One, plaintiffs allege that, by failing to provide for an appeals process

within the PMC, and consequently a reasonable opportunity to be heard, the Borough

violated their rights of procedural due process and equal protection under the Fifth and

Fourteenth Amendments. In Count Two, plaintiffs claim the Borough’s differing

treatment of duplexes as non-conforming uses is without legitimate rational basis and

violates their substantive due process and equal protection rights. Count Three alleges

that the Borough employed improperly trained Collingswood firemen to conduct the

inspections and to enforce the ordinances. Count Four alleges that the Borough

selectively enforced the PMC and formulated policies and practices intended to harass



                                              4
plaintiffs into abandoning their properties. In Count Five, plaintiffs allege that the

inspection process violated their rights to be free from unreasonable searches. In Count

Six, plaintiffs allege violations of their rights to free speech claiming that the Borough

retaliated against them for speaking out on matters of public concern. Count Seven

alleges that by subjecting the duplexes to regulation, registration and inspection as a

rental 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

regulation of their properties were invalid exercises of municipal authority under the New

Jersey Constitution.

       On September 14, 2004, the District Court entered an Order to Show Cause in

response to plaintiffs’ application for a preliminary injunction. Plaintiffs sought to enjoin

the Borough from utilizing the PMC without the addition of the model code’s appeal and

review procedures and to require the Borough to provide said appeals process.

Additionally, plaintiffs sought to enjoin the Borough from treating duplexes as

nonconforming 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

motion to dismiss and denied plaintiffs’ application for a preliminary injunction.

Specifically, the District Court dismissed Counts Two, Three, Four, Five, Six, Seven and

Eight. As for Count One, the District Court held that plaintiffs’ due process claim



                                              5
survived the Borough’s motion to dismiss. On July 18, 2005, plaintiffs timely filed a

Notice of Appeal.

                                             II.

       The District Court’s dismissal in part of plaintiffs’ constitutional and state law

claims 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

precludes appellate review of the District Court’s order dismissing these claims since

proceedings related to Count One of the Complaint are ongoing. See 28 U.S.C. § 1291;

Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir. 1990). Although we will

not consider the merits of plaintiffs’ substantive claims on appeal, our review of the

denial of injunctive relief at this juncture is appropriate. See 28 U.S.C. § 1292(a).

       A denial of a preliminary injunction is reviewed to determine whether there has

been 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

novo. Id. Factual determinations made as a prerequisite to the issuance of an injunction

are 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

the supporting data.’” Id. (quoting American Home Prods. Corp. v. Barr Labs., Inc., 834

F.2d 368, 371 (3d Cir. 1987)). “An abuse of discretion is a clear error of judgment and

not simply a different result which can arguably be obtained when applying the law to the



                                              6
facts of the case.” Hohe v. Casey, 868 F.2d 69, 70 (3d Cir. 1989) (quotation omitted).

                                              III.

       Preliminary injunctive relief is “an extraordinary remedy, which should be granted

only in limited circumstances.” Frank’s GMC Truck Center, Inc. v. General Motors

Corp., 847 F.2d 100, 102 (3d Cir. 1988). A preliminary injunction is warranted when the

movant demonstrates each of the following four elements: (1) a likelihood of success on

the merits; (2) irreparable injury if relief is not granted; (3) no greater harm to the

nonmoving 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

under the PMC unless and until it adopts the model code’s procedures for appeal and

review of code violations. The District Court concluded, however, that plaintiffs failed to

show the irreparable harm necessary to warrant such injunctive relief, reasoning that none

of the plaintiffs have received municipal court summonses or complaints or have incurred

fines or faced incarceration as a result of the inspection process.

       The irreparable harm element requires a “clear showing of immediate irreparable

injury.” Hohe, 868 F.2d at 72 (emphasis added) (quoting ECRI v. McGraw-Hill, Inc.,

809 F.2d 223, 226 (3d Cir. 1987)). We agree with the District Court that plaintiffs have

failed to demonstrate the requisite immediacy as none of the plaintiffs are presently

confronted with the imposition of penalties pursuant to the inspection process. In the



                                               7
event that any plaintiff is faced with fines or incarceration in the future, he or she may

renew a request for preliminary injunction at that time.

       Plaintiffs also argue on appeal that they have sustained irreparable financial

damage because, facing the threat of criminal prosecution, they made repairs to their

properties 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

of a preliminary injunction. We disagree.

       We have noted that “[t]he irreparable harm requirement is met if a plaintiff

demonstrates a significant risk that he or she will experience harm that cannot adequately

be 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,

plaintiffs can pursue their challenge to the constitutionality of the ordinance and seek

damages for their allegedly unnecessary repairs through Count One of their Complaint,

which the District Court left intact. Plaintiffs’ financial losses can therefore be rectified

by an award of monetary damages if they prevail at trial. See Morton v. Beyer, 822 F.2d

at 372 (“The claimed injury testified to . . . is purely economic in nature and thus

compensable in money. [While] [t]his Court has recognized that the fact that the payment

of monies is involved does not automatically preclude a finding of irreparable injury[,] we

have emphasized that the injury must be of a peculiar nature, so that compensation in

money cannot atone for it.”); In re Arthur Treacher’s Franchisee Litigation, 689 F.2d



                                               8
1137, 1145 (3d Cir. 1982) (noting that “we have never upheld an injunction where the

claimed injury constituted a loss of money, a loss capable of recoupment in a proper

action at law”).

         Accordingly, we conclude that the District Court did not abuse its discretion in

denying preliminary injunctive relief.

                                              VI.

         Plaintiffs additionally seek to enjoin the Borough from treating duplexes as

nonconforming uses. In Count Two, plaintiffs allege that the Borough acted in an

arbitrary and capricious manner in enacting the ordinance which treats duplexes as

nonconforming uses, thereby depriving plaintiffs of substantive due process and equal

protection of the law. Plaintiffs do not allege that as landlords they have a fundamental

interest in conducting their businesses or that they fall within a constitutionally suspect

class.

         To warrant injunctive relief based on Count Two, plaintiffs bear the burden to

demonstrate a likelihood of success on the merits, which here entails a showing that the

ordinance is arbitrary and unreasonable, and bears no rational relationship to a legitimate

state interest. See Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974); Doe v. City of

Butler, Pennsylvania, 892 F.2d 315, 318 (3d Cir. 1989). It is well-established that

“federal courts accord substantial deference to local government in setting land use

policy, and that only where a local government’s distinction between similarly situated



                                               9
uses is not rationally related to a legitimate state goal, or where the goal itself is not

legitimate, will a federal court upset a local government’s land use policy determination.”

Congregation 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

reasons for treating duplexes differently from other forms of residential uses. Those

reasons are: (1) multi-family dwellings cause a more dense population; (2) single family

homes promote more of a community feeling; (3) single family homes reduce traffic

congestion; and (4) duplexes historically have fallen into a greater state of disrepair

through the passage of time. The District Court concluded that the above-stated

governmental interests were legitimate and rationally related to the zoning ordinance.

       Controlling population density, traffic congestion and blight associated with

housing 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

restricted are legitimate guidelines in a land-use project addressed to family needs. This

goal is a permissible one . . . . The police power is not confined to elimination of filth,

stench, and unhealthy places.”); Doe v. City of Butler, Pennsylvania, 892 F.2d 315, 320

(3d Cir. 1989). Because we agree with the District Court that plaintiffs cannot

demonstrate a likelihood of success on the merits of their equal protection and due

process challenges to the zoning ordinance, we conclude that the District Court did not

abuse its discretion in denying plaintiffs’ preliminary injunction.



                                               10
       In addition, inasmuch as plaintiffs’ duplexes are valid, pre-existing non-

conforming uses, they are protected by New Jersey’s Municipal Land Use Law

(“MLUL”), N.J. Stat. Ann. § 40:55D-68 which states, “Any nonconforming use or

structure existing at the time of the passage of an ordinance may be continued upon the

lot or in the structure so occupied and any such structure may be restored or repaired in

the event of partial destruction thereof.” The MLUL “permits a use to continue

indefinitely after it has been rendered nonconforming by a zoning amendment.” Do-Wop

Corp. v. City of Rahway, 168 N.J. 191, 198 (2001). Because the Borough has not taken

any adverse action against plaintiffs with respect to the use of their properties as

duplexes, we further conclude that plaintiffs have failed to establish the irreparable harm

necessary to support a preliminary injunction.

                                             IV.

       Accordingly, we will affirm the District Court’s Order of June 22, 2005 denying

the preliminary injunction.
