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Re: Ezekwo v. City of Paterson Historic Preservation Commission

March 14, 2011

RE: EZEKWO
v.
CITY OF PATERSON HISTORIC PRESERVATION COMMISSION, ET AL.



The opinion of the court was delivered by: Jose L. Linares United States District Judge

C H AM B ER S O F M A R TIN L U T HE R K IN G JR. JOSE L. LINARES FE D E R A L B U IL D IN G & U.S. C OU R T H O USE JU DG E 50 W A L N U T ST ., R O O M 5054 P.O . B ox 999 Newark, NJ 07101-0999 973-645-6042

NOT FOR PUBLICATION CLOSED

LETTER OPINION

Dear Parties:

This matter comes before the Court by way of a motion for summary judgment filed by Defendants City of Paterson Historic Preservation Commission, City of Paterson City Council and Michael Lemme. Defendants' motion is brought pursuant to Federal Rule of Civil Procedure 56. The Court has considered the submissions made in support of the instant motion. No opposition was filed and no oral argument was heard. Fed. R. Civ. P. 78. Based on the reasons that follow, Defendants' motion is granted.

BACKGROUND

The following relevant facts are undisputed.*fn1 Barbour Estates, LLC, a New Jersey Limited Liability Company, purchased the property located at 869 Broadway, Paterson, New Jersey from the Roman Catholic Diocese of Paterson on August 14, 2003. (Def. 56.1 Stmt., ¶ 1; Def. Ex. A). Plaintiff, Ifeoma Ezekwo, is the sole member of the Limited Liability Company that owns the property. (Def. 56.1 Stmt., ¶ 1; Docket Entry No. 48 at 2).

The subject property is comprised of 4.79 acres of land, as well as a residential structure containing approximately 42 rooms. (Def. 56.1 Stmt., ¶ 2; Pl. Compl., ¶ 8). In September 2006, Plaintiff submitted an application to the City of Paterson Planning Board to subdivide the 4.79 acres in order to build single family homes on the property while keeping the original residential structure. (Pl. Compl., ¶ 10). The City of Paterson Planning Board postponed any action on the application to subdivide the subject property so as to allow the City of Paterson Historic Commission to examine the property to determine if it should be designated as a historic site. (Pl. Compl., ¶ 11).

On December 18, 2006, the City of Paterson Historic Preservation Commission adopted a Resolution preliminarily designating the subject property as a municipal historic site. (Def. 56.1 Stmt., ¶ 6; Pl. Compl., ¶¶ 12-14). Plaintiff, who was represented by counsel, was present at the hearing conducted by the Historic Preservation Commission and opposed the designation. (Def. 56.1 Stmt., ¶ 7; Pl. Compl., ¶ 13). The designation process continued after this date and on May 2, 2007, the City of Paterson Planning Board adopted a Resolution recommending to the Paterson Municipal Council that the subject property be designated as a local historic site. (Def. 56.1 Stmt., ¶ 8; Pl. Compl., ¶ 23). On October 24, 2007, the Municipal Council adopted an Ordinance amending the City of Paterson's Land Use Ordinance to add the subject property as a historic site. (Def. 56.1 Stmt., ¶ 9; Def. Ex. C).

In February 2008, Plaintiff initiated a state court action against the City of Paterson Planning Board, the City of Paterson Historic Preservation Commission and the City of Paterson Municipal Council seeking to reverse the various determinations leading up to the designation of her property as a historic site. (Def. 56.1 Stmt., ¶ 11, Def. Ex. D). This action was dismissed without prejudice by the Honorable Anthony J. Graziano, J.S.C. of the Superior Court of New Jersey, Passaic County on May 23, 2008. (Def. 56.1 Stmt., ¶ 11; Def. Ex. F). The action was later dismissed with prejudice by Judge Graziano on May 20, 2009.

On April 16, 2008, Plaintiff filed the Complaint in this matter, seeking damages as well as the reversal of the various determinations made by Defendants during the designation process.

Defendants now seek dismissal of Plaintiff's claims. Defendants' motion was filed on January 14, 2011. The original return date was set for February 7, 2011. The Clerk's office extended this date to February 22, 2011, thereby rendering Plaintiff's opposition brief due by February 7, 2011. On February 18, 2011, on the eve of this Court's ruling on the instant motion, Plaintiff requested an extension of time in which to oppose the motion. Plaintiff's request was granted in part by the Court on the same day. See Docket Entry No. 59. This Court's February 18, 2011 Order stated, unequivocally, that:

Plaintiff may file a brief in opposition to Defendants' motion for summary judgment which complies with all applicable Local and Federal Rules on or before March 3, 2011. Such brief must be filed with the Court no later than March 3, 2011. Plaintiff's failure to file an opposition brief with the Court on or before March 3, 2011 will result in Defendants' motion being deemed unopposed. Absolutely no further extensions of time will be granted.

As of today's date, March 14, 2011, no opposition has been filed. Accordingly, Defendants' motion ...


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