A flood of amici support the Islamic Society of Basking Ridge

mosque (1)

Recently, we reported that Bernards Township, New Jersey (the “Township”) had invited the Islamic Society of Basking Ridge (“ISBR”) to resubmit an application to develop a mosque. Previously, the Township denied the Islamic Society’s application for a 4,250 square foot mosque after more than 39 public hearing sessions over the course of about 4 years.  Our previous posts regarding the controversy are available here, here, and here.

ISBR’s case has garnered significant media attention in the last few weeks. One reason why may be that almost 50 Township residents received subpoenas in connection with the action. The 112-page complaint contains pages of allegations of “Community Opposition and Anti-Muslim Animus.” Community opposition and individual residents’ blatant animus have supported, at least at the summary judgment stage, a plaintiff’s RLUIPA and constitutional challenges. (See, for example, the decision in and our commentary regarding, a lawsuit against Bridgewater, NJ, which settled for $7.75 Million.) (For more information and another example, scroll to page 7 here.)

Another reason for the attention may be that an unusually large number of amici joined together in filing a friend of the court brief in support of ISBR.  According to the opening lines of the brief: “Amici are religious, legal, and civil liberties organizations concerned that the Religious Land Use and Institutionalized Persons Act (RLUIPA) be accurately interpreted and that constitutional rights be fully enforced.”

Amici include: American Association of Jewish Lawyers and Jurists, Baptist Joint Committee for Religious Liberty, Becket Fund for Religious Liberty, Center for Islam and Religious Freedom, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Interfaith Coalition on Mosques, International Mission Board of the Southern Baptist Convention, International Society for Krishna Consciousness, Muslim Bar Association of New York, National Asian Pacific American Bar Association, National Association of Evangelicals, New Jersey Muslim Lawyers Association, Queens Federation of Churches, Sikh American Legal Defense and Education Fund, Sikh Coalition, South Asian Bar Association of New Jersey, South Asian Bar Association of New York, and Unitarian Universalist Legislative Ministry of New Jersey.

Members of the above list are also joined by a number of individual amici. In their brief, the amici urge the court “to grant Plaintiffs’ 12(c) motion for partial judgment on the pleadings because Defendants have improperly applied different legal standards to a mosque simply because it is a mosque.”

The amici brief first addresses why Congress passed RLUIPA and relies on quotes from the Congressional Record and several RLUIPA cases to explain why “land-use regulation can threaten religious liberty.”  Next, the brief argues that the defendants have violated each of the three RLUIPA Nondiscrimination provisions: Section 2(b)(1)’s  “equal terms” provision; Section 2(b)(2)’s denominational discrimination provision; and Section 2(b)(3)’s total exclusions provision. Since the Township required more than double the amount of parking usually required for other applicants, the amici argue, ISBR was treated worse than other land use applicants “precisely because it is a mosque.”  Finally, the amici argue that the Township’s Parking Ordinance is unconstitutionally vague because it “leaves the parking ratio determination open-ended, subjecting applicants to the unfettered will of the Planning Board.”

The amici correctly note that the Third Circuit treats RULIPA’s Equal Terms provision as including a strict liability standard—if religious uses are treated less favorably, such diversity in treatment cannot be justified by a narrowly tailored, compelling government interest.  (See Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir. 2007)).  Readers should note, however, this view has not been adopted in other circuits.

Original photography by Wilson Salvador some rights reserved

Did the Sixth Circuit Unintentionally Adopt an RLUIPA Equal Terms Test?

The U.S. Court of Appeals for the Sixth Circuit recently issued its decision in Tree of Life Christian Schools v. City of Upper Arlington, in which it reversed the lower court’s granting of summary judgment in favor of the City as to Tree of Life’s RLUIPA equal terms claim.  RLUIPA’s equal terms provision states: “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”  A major issue with respect to equal terms claims is how to evaluate whether a government has treated a nonreligious assembly or institution better than a religious use.  Some circuits (Third, Seventh, and Eleventh) have adopted different tests to assess equal terms claims.  Other circuits have avoided the issue and have chosen not to adopt a test.  Although the Sixth Circuit stated it was not adopting any of the various tests used by the other circuits, it may have done so unintentionally.

In August 2010, Tree of Life purchased property at 5000 Arlington Centre Boulevard in Upper Arlington, Ohio.  The property, formerly occupied by AOL/Time Warner, is located in the City’s ORC Office and Research District, the purpose of which is: “to allow offices and research facilities that will contribute to the City’s physical pattern of planned, healthy, safe, and attractive neighborhoods.  The ORC district should also provide job opportunities and services to residents and contribute to the City’s economic stability.  Permitted uses in the ORC district are: business and professional offices, research and development, book and periodical publishing, insurance carriers, corporate data centers, survey research firms, outpatient surgery centers, hospitals, and such permitted uses as are set forth or may in the future be set forth in Table 5-C.” (zoning code available here)  The City’s zoning code prohibits schools (public or private, religious included) in the ORC district, but allows them in the remaining 95% of the City.

After Tree of Life purchased the property, it negotiated with the City to open a religious school.  Unable to strike a deal, Tree of Life submitted an application to rezone the property to allow the religious school use.  The City’s zoning ordinance provides that seven criteria “be followed in approving zoning map amendments,” including that “the proposed zoning district classification and use of the land will generally conform with the master plan.”  The master plan regulates uses of land to increase the government’s income-tax revenues, and, for this reason, emphasizes the use of certain non-residential land as office space.  The City denied Tree of Life’s rezone application for failure to comply with this specific criteria.

Tree of Life sued and claimed that, among other things, the City’s denial violated RLUIPA’s equal terms provision.  The District Court granted the City’s motion for summary judgment, but the Sixth Circuit reversed the decision and remanded back to the lower court for further consideration (read our post about the District Court decision here).  The Sixth Circuit reviewed the various equal terms tests utilized by other circuits: (a) the Eleventh Circuit’s plaintiff-friendly test in which any nonreligious assembly or institution can be a valid comparator regardless of whether it is “similarly situated” to the religious use; (b) the Third Circuit’s “regulatory purpose” test, which requires that a comparator be similarly situated; and (c) the Seventh Circuit’s “accepted zoning criteria” test, which also imposes a similarly situated requirement.

Although the Sixth Circuit claimed that it was not adopting any specific test, it notes that “the remaining question is whether these other assemblies or institutions, treated more favorably, are similarly situated,” which suggests rejection of the Eleventh Circuit’s test (emphasis added).  The Sixth Circuit then states that Tree of Life “has pled facts sufficient to allege that at least some of these assemblies or institutions are situated, relative to the government’s regulatory purpose, similarly to [Tree of Life], i.e., they would fail to maximize income-tax revenue.”  This appears to endorse the Third Circuit’s “regulatory purpose” approach.  The Sixth Circuit reversed the lower court’s granting of summary judgment, because Tree of Life’s “allegations create a genuine issue of fact as to whether the government treats more favorably assemblies or institutions similarly situated with respect to maximizing revenue, unless the government can demonstrate that no assemblies or institutions could be similarly situated.” (emphasis in original).

There are two other interesting points about the Sixth Circuit’s decision.  First, citing Kelo v. City of New London, 545 U.S. 469 (2005), the Court says that local governments could ensure compliance with RLUIPA by using eminent domain, because eminent domain “provides local governments with an escape hatch to avoid the most severe applications of RLUIPA’s zoning provisions.” (citation omitted).  According to the Sixth Circuit, “Upper Arlington could force [Tree of Life] to sell the land to the government, and sell the land to a buyer that the government thinks offers superior economic benefits.”  Most courts that have considered the issue have found that eminent domain is not a “land use regulation” that will invoke RLUIPA (recall, RLUIPA applies only to a “land use regulation”).  However, there is some authority that eminent domain could constitute a land use regulation under RLUIPA, see our prior post here.  It remains to be seen whether municipalities may increasingly exercise the power of eminent domain to circumvent RLUIPA compliance.  Politically, the idea may be untenable in most places.  Also, it might be asked if this use of eminent domain is a public purpose if it is principally to avoid RLUIPA liability.  Was consideration given to offering a substantial premium to Tree of Life to voluntarily sell the property to the City?

Second, the Sixth Circuit appears to limit the power of RLUIPA’s “safe harbor” provision to insulate local governments from liability.  RLUIPA’s safe harbor provision provides: “A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.”  In the face of equal terms claims, some municipalities have amended zoning codes to attempt to avoid liability (learn more about the safe harbor provision in the article Finding Salvation in Religious Law’s Safe Harbor).  In the case of Tree of Life, the Court states in Footnote 4 of its decision that the City previously allowed daycares in the ORC zoning district but amended the ordinance during the pendency of litigation to exclude daycares (presumably to avoid liability).  The Court, however, ruled that the amendment removing daycares would not remedy the alleged violation, and they should still be considered because “Upper Arlington always could amend the [zoning code] once again to allow daycares in the ORC district.”

Church and New Jersey Township Nearing Settlement of Religious Lawsuit

A rendering of Christian Community Chapel’s proposed sanctuary (credit: Christian Community Chapel)

We previously reported about the federal lawsuit filed by Christian Community Chapel against the Township of Hillsborough, New Jersey, in which the Township denied the Chapel’s variance requests to use a 14.3 acre property as a parsonage with a 150-seat worship facility.  Although the Township voted 4-3 in favor of the Chapel’s proposal, the application was denied because a supermajority (5 votes) was required.  The Chapel filed a federal suit and alleged that the Township’s denial violated the U.S. Constitution, the Religious Land Use & Institutionalized Persons Act, and New Jersey law.

NJ.com reports that the Chapel and the Township have agreed on the parameters of a settlement that would put an end to the dispute, which must be finalized at a meeting of the Township’s Board of Adjustment.  Reportedly, under the terms of the settlement, the Township will grant the Chapel’s requested variances, including use of the property for a parsonage and a sanctuary (conditional uses under the local zoning code).  Although the Chapel claims the legal battle has been costly, it will not demand monetary relief to settle because it wants to continue to build its relationship with the Township.  The Chapel would still need site plan approval, and it would likely be at least a year before the Chapel can move in.

Muslim Group Rejects New Jersey Township’s Offer to Resubmit Mosque Application

Bernards Township, New Jersey has invited the Islamic Society of Basking Ridge to resubmit an application to develop a mosque.  Earlier this year, the Township denied the Islamic Society’s application for a 4,250 square foot mosque after more than 39 public hearing sessions over the course of about 4 years.  The Township’s protracted review of the application culminated in denial for a variety of reasons – parking, insufficient buffers, storm water management, and emergency access.  The Islamic Society claims that it expended $450,000 in the protracted review process.  In March of this year, the Islamic Society filed a 112 page federal complaint suing the Township for violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the U.S. Constitution, among other laws.  Former Township mayor and president of the Islamic Society, Ali Chaudry, is also a plaintiff in the case.

The Islamic Society’s complaint alleges that anti-Muslim animus caused the Township to deny its application.  The United States Department of Justice has confirmed that it is investigating whether religious discrimination played a role.

Shortly after the lawsuit was filed, the Township issued a written response:

Bernards Township is an inclusive and warm community.  The allegations in the lawsuit do not represent our community.  It is not unusual for an applicant to appeal a denial, and it is their right. The Planning Board made its decision and now the court will decide whether to uphold that decision.  We look forward to a satisfactory resolution of this matter.

Since the filing of the lawsuit, the Township’s Planning Board has issued a resolution giving the Islamic Society 90 days to refile an application for a mosque.  The Islamic Society filed in federal court a motion to quash the Planning Board’s resolution, and has stated that it will not submit a new application.  The Planning Board’s resolution is especially interesting, given that RLUIPA contains a “safe harbor” provision that allows municipalities to take action to correct any statutory violations to escape liability.  Read more about the safe harbor provision here.

On May 6, the Islamic Society filed a motion for judgment on the pleadings – arguing that it should win the case based on the paper filings.  In the motion, the Islamic Society contends that the Township violated RLUIPA by requiring the proposed mosque to have more than triple the amount of parking spaces required – a requirement that had never been applied to any other applicant.  It also alleges that the parking ordinance is unconstitutionally vague.  The Township has until June 20 to file a response.

New Article: Five Tips For Planners & Planning Commissioners Reviewing Religious Land Use Applications

Robinson+Cole lawyers Brian Smith and Evan Seeman recently published an article in the Spring 2016 edition of Connecticut Planning, a publication of the Connecticut Chapter of the American Planning Association that should be of interest to many of our readers.  In the article, Smith and Seeman discuss a Connecticut soup kitchen’s legal battle with the City of Norwich to operate a soup kitchen and food pantry in a residential neighborhood in accordance with the Roman Catholic faith.  The article Five Tips For Planners & Planning Commissioners Reviewing Religious Land Use Applications is available by clicking here (beginning on page 15).

Ninth Circuit Agrees That Prohibition on the Possession and Distribution of Cannabis Does Not Violate RFRA

Original photo by Dave H., some rights reserved.

Founder and president of Oklevueha Native American Church of Hawaii, Inc. (“Oklevueha”), Michael Rex “Raging Bear” Mooney, filed suit in 2009 against various federal officials in the Federal District Court of Hawaii.  Mooney and Oklevueha sought to prevent the government from prosecuting them under the Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et seq. for possession of marijuana.  They argued that possessing cannabis for religious or therapeutic use, obtaining cannabis, and cultivating or distributing cannabis consistent with state law is protected religious exercise under the Religious Freedom Restoration Act (“RFRA”), and that the federal government had substantially burdened the Church’s religious exercise by prosecuting them for possessing the drug.

Given the lack of evidence presented on the issue by the Plaintiffs, the Court was skeptical that marijuana use constituted religious exercise.  However, the Court never answered the question of whether Mooney and Oklevueha’s cannabis use is “an exercise of religion” because it found that no rational trier of fact could conclude a prohibition of cannabis use imposes a “substantial burden” on religious exercise.

Like RLUIPA, RFRA does not define a “substantial burden,” but courts, including the Ninth Circuit, look to cases decided before Employment Division v. Smith, 494 U.S. 872 (1990) for the proper judicial framework.  A substantial burden is imposed “only when individuals are . . . coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions . . . .” (citing Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1070 (9th Cir. 2008) (en banc)).

At the heart of the Court’s reasoning was that Mooney and Oklevueha did not allege that the CSA’s prohibition on cannabis “‘force[s] [them] to choose between following the tenets of their religion and receiving a governmental benefit,’ the other kind of substantial burden we have recognized under RFRA.” (citing Navajo Nation, 535 at 1070).

The Plaintiffs were not forced to make such a choice, the Court reasoned, because they “expressly told us that foregoing cannabis is not contrary to their religious beliefs.” Instead, cannabis could be used as a substitute for peyote and Mooney and Oklevueha did not plead they could not obtain peyote.  Also, other “naturally occurring substances” could be used as an adequate substitute.

Unlike the Seventh Circuit’s decision in Schlemm v. Wall (7th Cir. 2015), where the court concluded that the Supreme Court decisions in Burwell v. Hobby Lobby (2014) and Holt v. Hobbs (2014) articulated a substantial burden standard “much easier to satisfy” than the Seventh Circuit had previously applied, the Ninth Circuit quickly distinguished the SCOTUS cases.  (Post regarding Schlemm here) Unlike the Seventh Circuit, the Ninth Circuit’s interpretation of a “substantial burden” remained focused on pre-Employment Division v. Smith case law.

The Ninth Circuit’s decision in Oklevueha Native American and Church of Hawaii, Inc.; Michael Rex Mooney v. Lynch et. al., No. 14-15143 (9th Cir. 2016) is available here.

Original photo by Dave H., some rights reserved.

New Sign Law Blog

Our friends at the Otten Johnson law firm in Denver, Colorado have launched a sign law blog –Rocky Mountain Sign Law Blog – that should be of interest to our readers.  In addition to covering the latest issues in sign regulation, the blog also tracks all types of First Amendment issues.  Check out their latest post $435,000 Damage Award to Milwaukee Strip Club Upheld.  One of the blog’s authors, Brian Connolly, has contributed guest posts for us in the past.  Read his guest post Life After Reed v. Gilbert and check out the new blog.

Church of the Flying Spaghetti Monster Not a Religion, Says Federal Court

Flying Spaghetti Monster

We don’t often report on RLUIPA prisoner cases (recall, that RLUIPA applies in the land use and prison contexts).  But a recent federal decision in Nebraska – Cavanaugh v. Bartelt (D. Nebraska 2016), is just too good to pass up.  Stephen Cavanaugh, a prisoner in the Nebraska State Penitentiary, claims that he is “Pastafarian” – a believer in the divine Flying Spaghetti Monster who practices “FSMism.”  As noted by the  court in its decision, FSM gospel states as follows:

Can I get a “Ramen” from the congregation?!

Behold the Church of the Flying Spaghetti Monster (FSM), today’s fastest-growing carbohydrate-based religion. According to church founder Bobby Henderson, the universe and all life within it were created by a mystical and divine being: the Flying Spaghetti Monster. What drives the FSM’s devout followers, aka Pastafarians? Some say it’s the assuring touch from the FSM’s Noodly Appendage. There are those who love the worship service, which is conducted in Pirate-Speak and attended by congregants in dashing buccaneer garb. Still others are drawn to the Church’s flimsy moral standards, religious holidays every Friday, and the fact that Pastafarian Heaven is way cooler. Does your Heaven have a Stripper Factory and a Beer Volcano? Intelligent Design has finally met its match—and it has nothing to do with apes or the Olive Garden of Eden.

Within these pages, Bobby Henderson outlines the true facts—dispelling such malicious myths as Evolution (“only a theory”), science (“only a lot of theories”), and whether we’re really descended from apes (fact: Humans share 95 percent of their DNA with chimpanzees, but they share 99.9 percent with Pirates!).

Mr. Cavanaugh requested the same accommodations afforded to prisoners of other religious faiths, including through ordering and wearing certain clothing (Pastafarians dress as pirates and believe that global warming is caused by the decreasing number of pirates on the high seas), weekly worship services and classes, and the right to receive communion.  Prison officials rejected his requests because they determined that FSMism was a parody of a religion (not a religion itself).  Cavanaugh sued under RLUIPA, the Free Exercise Clause, the Equal Protection Clause, and state law.

The federal court agreed with the prison officials and found “that FSMism is not a ‘religion’ within the meaning of the relevant federal statutes and constitutional jurisprudence.  It is, rather, a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education.  Those are important issues, and FSMism contains a serious argument – but that does not mean that the trappings of the satire used to make that argument are entitled to protection as a ‘religion.’”  The court further elaborated:

This case is difficult because FSMism, as a parody, is designed to look very much like a religion. Candidly, propositions from existing caselaw are not particularly well-suited for such a situation, because they developed to address more ad hoc creeds, not a comprehensive but plainly satirical doctrine. Nonetheless, it is evident to the Court that FSMism is not a belief system addressing ‘deep and imponderable’ matters: it is, as explained above, a satirical rejoinder to a certain strain of religious argument.

In the end, all of Mr. Cavanaugh’s claims were rejected.  The decision is especially interesting for its discussion about the role of the courts in evaluating whether a belief is or is not religious.  Although the case involves a prisoner’s claim, most of the court’s discussion about religious exercise applies to the land use context.  Consider when local zoning agencies are confronted with development proposals from “non-traditional” religious groups.  As noted by the court in this case, it is not the role of the judiciary to question religious beliefs.  This case, however, presents an example of when a belief is not sufficiently religious to invoke the RLUIPA statute.

For anyone interested in learning more about the Church of the Flying Spaghetti Monster, an informational video “introducing His Noodliness – the Flying Spaghetti Monster” – is available here.

Photo by John Dill (via Sarah Pierce), some rights reserved.

Alabama Sex Offender Religious Land Use Case To Proceed

ClantonThe U.S. District Court for the Middle District of Alabama has ruled that Ricky Martin may proceed with his religious land use and other claims against the Chilton County District Attorney Randall Houston.  The Middle District of Alabama case Martin v. Houston involves Pastor Ricky Martin’s Triumph Church in Clanton, Alabama.  Martin began a transitional housing program for men recently released from Alabama correctional facilities, many of whom were sex offenders.  As part of his religious mission, he strives to help these individuals transition back into society.  To do so, he set up 5 mobile homes on his land, all within 300 feet of each other.  Sex offenders Martin hoped to help lived together in these mobile homes.

Alabama lawmakers adopted legislation (Alabama Code § 45-11-82) (the “Act”) that prohibited individuals whose names were listed on the Alabama sex offender list from living together in the same home, and further provides that offenders cannot live on the same property as another offender unless the homes are at least 300 feet apart.  Violation of the Act constitutes a public nuisance with fines between $500 and $5,000 for each violation.  The Act does not apply to offenders who are married or related.  The Act applies only to Chilton County (which includes Clanton), but nowhere else in Alabama.

Martin argues that the Act was designed to affect only his property – to eliminate the transitional housing settlement.  Fearing fines, Martin evicted all men living at his property.  Martin sued alleging that the Act violates RLUIPA’s substantial burden provision and the Free Exercise Clause of the federal Constitution.  He also argues that the Act is an unconstitutional bill of attainder, and raises a Fourteenth Amendment procedural due process claim.

Defendant Houston moved to dismiss the claims, first arguing that the Court lacked subject matter jurisdiction, and, second, that each action fails to state a claim upon which relief could be granted.  The Court found that the claims were justiciable and that it had subject matter jurisdiction over them.

The Court found that Martin had not sufficiently alleged one of the three “jurisdictional hooks” to present a colorable RLUIPA substantial burden claim.  The Court, however, denied the motion to dismiss with respect to this claim, since Houston did not seek dismissal on this ground, and it will allow Martin to attempt to establish one of the hooks.  For a court to entertain a substantial burden claim, the plaintiff must establish either that the substantial burden: (a) is imposed on a program that received federal financial assistance; (b) affects commerce among the several states; or (c) is imposed in the implementation of a land use regulation under which the government makes an individualized assessment.  Here, the Court found that the Act was not an individualized assessment, since it did not involve a system of granting land use permits.  Nor were there sufficient allegations to support either of the other two jurisdictional hooks.

The Court also found that Martin had sufficiently pleaded a Free Exercise Claim: “Martin’s pleading indicates that he holds sincere religious beliefs.  As part of his Christian faith, he feels that he has a duty to serve others.  He especially is compelled to serve those in need of help, and [sex offenders] fall into that category.”  The Court also suggested that based on the facts before it, it appeared that Martin could prevail on such a claim.  According to the Court, strict scrutiny should apply because it appears that the Act improperly targets Martin’s religious activity.  Further, the Court observed that at this stage, there was no evidence that the Act served a compelling governmental interest advanced in a narrowly tailored manner:

Even if the Act serves a compelling governmental interest in preventing some type of harm posed by the clustering of sex offenders, it allows them to live in clusters so long as the sex offenders are related.  What is more, it allows the same clustering to take place throughout the other sixty-six counties in the state.  This indicates that the Act proscribes some conduct that is protected by the First Amendment, but fails to restrict other conduct that inflicts the same harm the Act was designed to prevent.

Martin’s unconstitutional bill of attainder and procedural due process claims were also allowed to proceed.

Photo by J. Stephen Conn, Some rights reserved

Chabad Files RLUIPA Suit Against Toms River, New Jersey

chabad

Rabbi Moshe Gourarie and the Chabad Jewish Center of Toms River Inc. (the “Center”) have sued the Township of Toms River, New Jersey, and the Township’s Zoning Board of Adjustment (“ZBA”) in the Federal District Court of New Jersey.  The Center’s complaint is available here.

Rabbi Gourarie has run the Center from his home and garage on eight acres within the Township’s Conservation Residential Zone since 2011 (the “Property”). Prior to 2011, he operated the Center from a home he rented in another part of the Township. According to the complaint, the Property is bordered on three sides by non-residential uses.  The Property is in a zone, however, that does not allow houses of worship by right or as a conditional use. In the complaint, the Center contends that under New Jersey law, a clergy residence or parsonage must be allowed in any zoning district, and that the Township cannot legally prevent small religious gatherings within a private residence.

According to the Center, the Property is primarily used as a residence, but is also used for small religious gatherings on Saturdays with between 10 to 15 people.  The Property is also used to host occasional gatherings with an average of 12 people, various classes on topics within Judaism that attract an average of 10 people, and Hebrew school classes for five children.  In December, 2015 the ZBA ruled that the Center had to obtain a use variance to continue operating from the Property. The Center’s ZBA application was filed after the Township cited Gourarie for eight zoning violations in 2014, including establishing a use not permitted and failure to obtain a development permit.

The complaint alleges significant anti-Semitic hostility in Toms River, including vandalism at a local playground where “burn the Jews” was etched on a piece of equipment.  The complaint also cites pages of comments made by Township residents on media websites and Facebook as evidence of hostility towards Jewish individuals.

The complaint states that some residents have placed lawn signs on their properties reading: “Don’t Sell! Toms River Strong.” Residents in the North Dover section of Toms River claim that they have been the subject of high-pressure tactics by real estate agents seeking to buy property on behalf of Orthodox Jewish clients. The complaint alleges that the signs are part of a campaign to keep Ultra-Orthodox Jews out of Toms River.  A neighboring town, Lakewood, has a large population of  Ultra-Orthodox Jews and the Center claims that the Township has taken several discriminatory actions to keep the same population out of Toms River, including an ordinance limiting real estate canvassing.

The ZBA divided a review of the Center’s application into two phases: (1) to determine whether a variance is required; and (2) if a variance is required, whether it should be granted.  After a public hearing, the ZBA concluded that the Center was a “House of Worship” because the Property was being utilized “for more than a casual prayer group.” The Center claims that the determination of use is a final determination under New Jersey law, making its claims ripe for judicial review. The Center also claims that it cannot afford to apply for a use variance.  It therefore filed its lawsuit, claiming four counts in violation of RLUIPA (substantial burden, equal terms, nondiscrimination, and exclusion and limits), violation of the Federal Fair Housing Act, violation of its Constitutional rights to Free Exercise and Equal Protection, as well as violations of New Jersey law and the New Jersey Constitution.

Photo by Andy Clymer, Some rights reserved

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