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Owner of Chinese eatery on N. Union sues borough in federal court, claims rights violated over lot

By Dan Miller

danmiller@pressandjournal.com

717-944-4628
Posted 1/24/20

The owner of the HE Group Chinese restaurant has sued Middletown borough in federal court, alleging the borough has violated his right to equal protection under the law.

In the suit filed Friday …

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Owner of Chinese eatery on N. Union sues borough in federal court, claims rights violated over lot

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The owner of the HE Group Chinese restaurant has sued Middletown borough in federal court, alleging the borough has violated his right to equal protection under the law.

In the suit filed Friday in U.S. Middle District Court, the lawyer for owner Howard Dong alleges that the borough’s “demands” regarding construction of an off-street parking lot on the restaurant property at 460 N. Union St. have been “irrational and wholly arbitrary.”

The suit alleges HE Group has been “intentionally treated differently” by the borough “from other, similarly situated real estate owners with no rational basis for such difference in treatment.”

Borough Codes and Zoning Officer Al Geosits, who is named as a defendant in the suit along with the borough, has sought to impose stormwater control requirements upon HE Group for the off-street parking lot that the borough has not required upon at least four other properties within a two-block radius of the restaurant, according to the suit.

The lawsuit alleges that, based on actions taken by Geosits including the filing of numerous citations against the restaurant, “HE Group has been treated in an inconsistent and capricious manner, with contradictory directives and orders all of which were intended to cause the HE restaurant to ‘fall’ and to ‘bleed’ the company” financially.

The lawsuit asks that HE be compensated for $22,975 in engineering and contracting services as well as for the “loss of property development opportunity” at the restaurant.

The lawsuit also requests the court enter judgment against the borough and Geosits for nominal damages, compensatory damages, attorneys fees and costs, and granting other relief that is “just and equitable.”

The lawsuit also requests the court to stop the legal proceedings against HE Group stemming from the citations the borough has filed against the restaurant.

On Monday, Borough Manager Ken Klinepeter said borough staff would have no comment. Council President Angela Lloyd said: “I can’t comment due to it being a matter of litigation.” Mayor James H. Curry III did not respond to a request for comment.

Dong has appealed to Dauphin County Court nearly $3,000 in fines that District Judge David Judy imposed on Dong in September resulting from five citations from the borough.

The citations were for Dong not constructing the off-street parking according to borough specifications, and for Dong allowing people to park their vehicles upon the lot.

A hearing on Dong’s appeal is scheduled for Feb. 3 before county court Judge Lawrence F. Clark Jr.

On Nov. 7 Judy levied another $3,000 in fines upon Dong for six more citations that the borough imposed upon him in late September and in early October, also for alleged violations tied to the off-street parking.

The federal lawsuit traces the history of the dispute to fall 2016 when Dong was looking for a property to buy so he could open his restaurant in Middletown, where Dong had met his wife while both were students at Penn State Harrisburg.

According to the lawsuit, less than an hour after HE Group settled on the former bed-and-breakfast at North Union and East High streets, Curry, who lives across the street, gathered with another neighbor “and stated to Dong that he could not open a Chinese restaurant at such location.”

Curry is not named individually as a defendant in the lawsuit. However, the lawsuit devotes several paragraphs to allegations that Curry used his influence as mayor to get borough officials to work against Dong being able to open the restaurant.

Following the first hearing before Judy on the first set of citations Aug. 7, Dong alleged that Curry and the borough had waged a pattern of harassment against him and the restaurant. Dong said if the pattern continued, he might have “no choice” but to close the restaurant in Middletown.

The restaurant remains open. In October, Dong opened a second Chinese restaurant at 1070 S. Cameron St. in Harrisburg, named He Express Authentic Chinese Food.

Curry has denied the accusations, saying Dong is using them as a smokescreen to avoid complying with the same regulations the borough imposes on all other businesses, according to the mayor.

“I was one of the first to welcome him and receive a menu from him. I welcomed him with another neighbor and took a tour of the building,” Curry told the Press & Journal in August in response to Dong’s allegations.

“He has to abide by the laws. Howard is just bitter that his feet are being held to the fire. I have absolutely nothing to do with it. It’s insulting to insinuate that someone is trying to sabotage his business. We are trying to ensure the safety of residents.”

In the lawsuit, Dong alleges that Geosits began to “pressure” HE Group to create a new, off-street parking lot on the restaurant property in order “to make a ‘neighbor’ happy,” referring to Curry.

The lawsuit says the stormwater requirements imposed by Geosits raised a contractor’s price to Dong for the parking lot from $14,500 to $40,250.

At one point, Dong according to the lawsuit said he “became aware” that the borough was requiring HE to execute a covenant not to sue the borough “in order to proceed with any on-site parking development.”

Dong “refused to execute such a covenant,” according to the lawsuit.

In testimony before Judy on Nov. 7, Dong said he can no longer find a contractor to finish the parking project, because of how he has been treated by Geosits and the borough.

Geosits has said that he did not force Dong to install the off-street parking, and that borough zoning does not require Dong to provide off-street parking for the restaurant.

“Borough council cannot change stormwater regulations for the state of Pennsylvania,” Geosits told Dong during the hearing before Judy on Nov. 7.

Aaron D. Martin, of Mette, Evans & Woodside in Harrisburg, filed the suit for Dong. He told the Press & Journal on Friday that he would have no further comment at this time.