Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-16-2005

Intl Hott II v. City of Elizabeth
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2818




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Recommended Citation
"Intl Hott II v. City of Elizabeth" (2005). 2005 Decisions. Paper 1188.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1188


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                                        NOT PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


                 No. 04-2818


       INTERNATIONALLY HOTT II,
              a Partnership

                            Appellant

                       v.

   CITY OF ELIZABETH, NEW JERSEY,
          a Municipal Corporation;
 PATRICK MALONEY; GLENN HENNINGS;
ANDREW LAZARCHICK; MARTIN STARR;
   STEVEN NEGREY; JAMES MALONE;
MANNY GROVA; ANDREW PATERNOSTER;
     IRIS BROWN; ROBERT JASPAN;
EDWARD JACKUS; ANTHONY MONTEIRO;
     PATRICIA PERKINS-AUGUSTE;
       JOHN DOES 1 THROUGH 10



On Appeal from the United States District Court
           for the District of New Jersey
              (D.C. No. 96-cv-01447)
District Judge: The Honorable William G. Bassler



  Submitted Under Third Circuit LAR 34.1(a)
             Date: May 13, 2005



                       1
             Before: SLOVITER, FISHER and ALDISERT, Circuit Judges

                                  (Filed: May 16, 2005)



                               OPINION OF THE COURT


ALDISERT, Circuit Judge.

       Internationally Hott II appeals the District Court’s order dismissing its application

for review of the Planning Board’s decision and denying its application for enforcement

of the settlement and appointment of a Special Master.

       Since the late 1990s, Hott has been attempting to open a nude juice bar and

restaurant in the City of Elizabeth, New Jersey. In 1996, Hott brought a complaint

challenging an Elizabeth ordinance against nude dancing and the District Court declared

the ordinance invalid. Thereafter, Hott and Elizabeth entered into a settlement agreement.

The settlement allowed Hott to open its nude juice bar in a contemplated location and

gave the District Court continuing jurisdiction over disagreements regarding the terms of

the settlement. In 2002, the court granted Hott’s motion to enforce the settlement. In

2003, Hott1 applied to the Elizabeth Planning Board for site approval and other bulk

variances. The application was denied. Instead of filing an action in state court, Hott

looked to the District Court to enter an order. The District Court concluded that it did not


       1
       In 2003, Hott assigned its rights to T&B Club 1 & 9 Restaurant, but for
simplicity, we will keep referring to the Appellant as Hott.
                                             2
have subject matter jurisdiction to review the Planning Board’s decision and denied

Hott’s other applications.

       On appeal, we must decide whether: (1) the District Court erred in concluding that

it lacked subject matter jurisdiction to review the Planning Board’s decision; (2) the

relief Hott sought was within the scope of the settlement agreement between the parties;

and (3) the District Court should have appointed a Special Master. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and will affirm the judgment of the District Court.

                                             I.

       Because we write only for the parties, who are familiar with the facts, procedural

history and contentions presented, we will not recite them except as necessary to the

discussion.

                                            II.

       We decide that the District Court did not err in concluding that it lacked subject

matter jurisdiction to review the Planning Board’s decision. An adjudication of

municipal actions or zoning board and planning board decisions are accomplished by

actions in lieu of prerogative writs. See N.J. Ct. R. 4:69-1. The proper venue for such

actions is the New Jersey Superior Court, law division. See Cell South of N.J., Inc. v.

Zoning Bd. of Adjust. of West Windsor Township, 

, 250 (N.J. 2002).

                                            III.

       We must decide also whether the relief Hott sought was within the scope of the


                                             3
settlement agreement between the parties. The District Court correctly held that

“[n]either the settlement agreement with the City nor the Constitution gives Plaintiff the

blanket right to open its business without complying with applicable land use regulations

and obtaining the appropriate site plan approvals.” (Dist. Ct. Op. at 24.) Even if the relief

was within the scope of the settlement agreement, the District Court could not enforce

the settlement against the Planning Board because the Board was never a party to the

underlying litigation or the settlement agreement.

                                             IV.

       The final issue is whether the District Court should have appointed a Special

Master to ensure that the settlement was implemented going forward. Appointment of a

Special Master is warranted to: (1) perform duties consented to by the parties; (2) hold

trial proceedings and make findings of facts if there is an “exceptional condition” or the

issues involve a “difficult computation of damages;” or (3) address pre-trial and post-trial

motions that cannot be addressed effectively by a judge. Rule 53(a), Federal Rules of

Civil Procedure. These circumstances do not exist in this case and the District Court

correctly denied Hott’s application for appointment of a Special Master.

                                         *****

       We have considered all contentions of the parties and conclude that no further

discussion is necessary. The judgment of the District Court will be affirmed.




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