Anthony Storino; Frank Storino v. BOROUGH OF POINT PLEASANT BEACH, AMUNICIPAL ENTITY OF THE STATE OF NEW JERSEY On…

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

-- 1 of 11 --

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.
2

-- 2 of 11 --

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
3

-- 3 of 11 --

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.
4

-- 4 of 11 --

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 non-
5

-- 5 of 11 --

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 non-
conforming 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.
6

-- 6 of 11 --

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.
7

-- 7 of 11 --

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
8

-- 8 of 11 --

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

-- 9 of 11 --

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

-- 10 of 11 --

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
11

-- 11 of 11 --