Port Jervis, NY Sued by DOJ; Settles Two Days Later

The City of Port Jervis, New York has agreed to settle a federal lawsuit filed by the United States Department of Justice (DOJ) alleging that the City’s revision to its zoning code violated the Religious Land Use & Institutionalized Persons Act (RLUIPA).  In August 2015, Goodwill Evangelical Presbyterian Church (Church) finalized a contract to purchase property in the City’s Central Business District (CBD), where a place of worship was a permitted use.  Four months later, the City revised its zoning code to bar “places of worship and related facilities” in the CBD and the Service Commercial District.

The zoning code revision (known as Local Law No. 7) was intended to allow a local brewery called Fox N Hare Brewing Co. to purchase and operate on property near to where the Church sought to locate.  Under New York State’s Alcoholic Beverage Control laws,  no license may issue for on-premises liquor consumption “on the same street or avenue and within two hundred feet of a building occupied exclusively as a school, church, synagogue or other place of worship.”  This meant that if the Church operated from the property it sought to purchase, the brewery would have to go elsewhere.

Local Law No. 7 contains a “Legislative Findings and Intent” Section providing that “places of worship may have a detrimental effect on business, commercial[,] and community development” in the subject zoning districts and states that, due to “the restrictions set forth for liquor licenses for restaurants, breweries, micro-breweries, micro-distilleries, pubs and other eating and drinking establishments commonly located within the Central Business Zoning District and Service Commercial Zoning District of the City, as set forth in the Alcoholic Beverage Control Legislation of the State of New York, places of worship and related facilities may deter and prohibit the location and expansion of business and commercial uses within the Central Business Zoning District and Service Commercial Zoning District in the City.” While Local Law No. 7 banned places of worship it also allowed uses that had previously been prohibited: microbreweries, brew pubs, breweries, microdistilleries, distilleries, wineries, and tasting rooms.  After Local Law No. 7 passed,  the Church voided its  contract to purchase the property.

The DOJ sued alleging violations of RLUIPA’s equal terms and substantial burden provisions.  According to the DOJ, the City’s zoning code on its face violated the equal terms provision because it banned religious uses but at the same time permitted analogous, secular assembly uses in the same zone, including clubs, fraternal organizations, nonprofit membership clubs, libraries, gyms, art galleries, museums, preschools, day-care centers, and nursery schools.  The DOJ alleged that the City violated the substantial burden provision because prior to Local Law No. 7 the Church had the reasonable expectation that it could use the property as a place of worship.  But the revision to the zoning code caused the Church to suffer delay, uncertainty, and expense with respect to its intended use of the property.

Two days after filing suit, the City and the DOJ agreed to settle the case by consent decree filed with the court.  Under the decree, the City has sixty days to repeal Local Law No. 7.  Further, within 180 days, the City must provide RLUIPA training to its mayor, each member of the Common Council, and all building and code enforcement officers.  The last requirement of note is that the City must maintain copies of all religious land use applications and provide copies of same to the DOJ within fifteen days following disposition of such applications.  The same applies for any religious discrimination complaints; that is, the City must notify the DOJ of any such complaints within fifteen days after receipt of complaint.  The consent decree in United States of America v. City of Port Jervis, No. 15 Civ. 9026 (S.D.N.Y. 2016) is available here.

Although the DOJ believed the zoning code revision in this case created an equal terms issue by treating secular assembly uses differently from religious uses, it is important to remember that, after careful evaluation of a city’s land use goals, it may be permissible to exclude religious uses from a downtown or economic development zone.  In Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007), the Third Circuit upheld a limitation on religious uses in a city’s redevelopment zone after assessing its regulatory purpose: “[s]trengthening retail trade and City revenues, increase[ing] employment opportunities, and attracting more retail service enterprises” to “encourage a vibrant and vital downtown residential community centered on a core sustainable retail main street.”  Id. at 2.

RLUIPA Round-Up: Happy Cyber Monday

cyber monday

Guest Post by Derek Valentine

Take a break from the sales and give the Round-Up a read:

  • ABC Channel 9 in Sioux City reports on a US Justice Department inquiry into the proposed siting of Our Savior Lutheran Church in a former Budweiser warehouse in the City of Norfolk, Nebraska. The City maintains that churches are not allowed in industrial zones and fears that the church would be in conflict with existing industrial uses in the area. The Church is frustrated that the City refuses to engage in a dialogue. The City has 30 days to submit the details of basis for the zoning denial for review by the US Justice Department.
  • In Bucks County, Pennsylvania, a federal judge has upheld a discrimination lawsuit filed by the US Department of Justice against the Township of Bensalem, denying the Township’s motion to dismiss the case. Philly Voice reports that Bensalem Masjid was denied a variance to construct a mosque on parcels zoned for residential and business professional uses, citing concerns about the size of the mosque, parking, and membership growth. Bensalem Masjid responded by reducing the size of the project, adding parking, and offering a Friday afternoon prayer service. The US Department of Justice alleges that variance requests were approved for various other religious institutions, but not for Bensalem Masjid.
  • In rural San Martin, California, some residents are outraged over a proposed 105,546 square-foot mosque, as reported by the Daily Intelligencer. The mosque is proposed in a “Special Plan Area,” which was instituted to limit development and preserve agriculture and rural character. Those opposing the mosque are concerned about groundwater contamination from a “green cemetery” and question whether the use is “local serving” as mandated by the ordinance.
  • Church leaders and village officials are going head-to-head in Antioch, Illinois, reports the Daily Herald. Saint Ignatius Episcopal Church is operating a resale shop that the Village claims is not consistent with the residential zoning in the neighborhood. The Village has filed an injunction arguing that in addition to zoning noncompliance, the facility has inadequate handicapped-accessible restrooms. The Church points to a 60 year-old agreement between the Church and the Village stating that all buildings on the 5.1-acre parcel are part of the overall ministry, and not subject to the zoning use restrictions.
  • A group of churches filed suit against Massachusetts officials based on the enforcement of the public accommodation law. The law, as interpreted by the Massachusetts Commission Against Discrimination and Attorney General Maura Healy requires the churches to allow the use of bathrooms and other “intimate areas” based on gender identity and not biological sex.

Original photo by Taryn Domingossome rights reserved.

Rocky Mountain Sign Law Blog: Installation of Ten Commandments On City Hall Lawn is Government Speech, Violates First Amendment

Original Photography by George Bannister (Licensed)

Guest Post by Brian Connolly, Otten Johnson, PC

Earlier this month, the Tenth Circuit Court of Appeals ruled that Bloomfield, New Mexico’s installation of a Ten Commandments monument on the lawn in front of city hall violated the Establishment Clause of the First Amendment.

In 2007, upon request of one of its members, the Bloomfield city council approved the placement of the privately-donated monument.  At the time, the city lacked a policy regarding placement of permanent monuments, but it enacted one three months later.  The city’s policy required a statement to be placed on privately-donated stating that the speech was not that of the city but rather of the donor, and also required that such monuments relate to the city’s history and heritage.  After several years of fundraising and another city council approval, the 3,400 pound Ten Commandments monument was placed on the city hall lawn in 2011, and the city held a ceremony—replete with statements by elected officials and religious leaders—to dedicate the monument.  Over the course of the next two years, the city amended the monument policy, and allowed the installation of other monuments on the lawn, including monuments containing the Declaration of Independence, the Gettysburg Address, and the Bill of Rights, but did not advertise its policy of allowing donated monuments.

The federal district court held that the plaintiffs had standing to challenge the city’s action in placing the monument, found that the monument constituted government speech, and held the placement of the monument to be a violation of the Establishment Clause.  The Tenth Circuit affirmed the district court’s decision.

With respect to the city’s challenge to the plaintiffs’ standing, the appeals court reiterated that “direct contact” with the Ten Commandments monument was all that was required for the plaintiffs to establish injury.  The court went on to find, over the city’s arguments to the contrary, that the Ten Commandments monument constituted government speech and was therefore subject to Establishment Clause limitations.  While the city disputed the monument’s permanence—arguing that, despite its size, it could be removed by a construction crew—the court instead found that the monument was permanent and therefore constituted government speech under the Supreme Court’s decision in Pleasant Grove City v. Summum.

Moving to the three-part Establishment Clause analysis established by Lemon v. Kurtzman, the court concluded that the monument violated the First Amendment because the monument had the effect of endorsing particular religious beliefs.  According to the court, the Ten Commandments are a religious text, the monument was prominently placed in front of the principal government building in the city, and the circumstances of the monument’s placement suggested a religious motivation on the city’s part.  In so holding, the court found that the required disclaimer message on the monument did not change the analysis that a reasonable observer would believe the monument to be the city’s speech and endorsement of religion, and further that the placement of secular monuments on the city hall lawn did not negate the religious endorsement effected by the Ten Commandments monument.

Despite the Tenth Circuit’s ruling, last week, several members of the Bloomfield community spoke out in favor of the Ten Commandments monument at a city council meeting.  The city is considering filing a petition for writ of certiorari in the Supreme Court.

Felix v. City of Bloomfield, ___ F.3d ___, 2016 WL 6634870 (10th Cir. Nov. 9, 2016).

Original Photography by George Bannister, Licensed

Facial RLUIPA Claims Against Mobile, AL Dismissed

meditation

Guest Post by Tavo T. True-Alcala

Earlier this year, the Thai Meditation Association of Alabama and several individual plaintiffs (“the Center”) filed suit against the City of Mobile, Alabama (“the City”), alleging that the denial of its application to operate a meditation center in a residential area was a violation of its rights under RLUIPA on three counts. Specifically, the complaint claims that the City of Mobile’s Zoning Ordinance, both on its face and as applied, violates the Center’s rights as a religious institution by substantially burdening its religious exercise, discriminating on the basis of religion, and treating it on less than equal terms. The complaint also alleges that the Center was misled by City officials when it was encouraged to apply for a planning use approval, which is the appropriate zoning relief for religious organizations seeking to locate in a residential zone, rather than a use variance which is required for  commercial uses in residential zones. The City denied the Center’s application because it ultimately concluded that the Center’s proposal was for a commercial, not religious, use. Further details of this case can be found in our previous post.  Most recently, the court decided the City’s Motion to Dismiss, granting the dismissal of the Center’s facial RLUIPA claims, but denying its request to dismiss the claim of negligent misrepresentation.

The City claimed that the facial challenges presented in the Center’s complaint are not supported by any reference to specific provisions of the Zoning Ordinance that allegedly violate RLUIPA on their face. According to the City, the Zoning Ordinance is, on its face, neutral, and “does not discriminate between similar religious and non-religious entities or uses, and does not place a ‘substantial burden’ on Plaintiffs’ religious exercise,” and therefore contended that the facial allegations should be dismissed. The City further averred that as the Center knew its anticipated use was subject to City approval, and that this knowledge precludes a claim of misrepresentation, whether or not the application was denied.

On October 12, an Alabama federal magistrate judge issued a report recommending that the City’s motion be granted as to all facial claims, but denied as to the claim of negligent misrepresentation.  In considering the facial challenges, the magistrate judge found that the Zoning Ordinance does not on its face infringe upon the rights of any religious organization by imposing a substantial burden on religious exercise, discriminating on the basis of religion, or causing unequal treatment.   The magistrate judge further distinguished facial and as applied claims by reasoning that including the specific instance of the denial of the Center’s application in the consideration of the facial challenges “would risk emptying the ‘as-applied’ challenge of its meaning.”

While the motion to dismiss the facial challenges was granted, the magistrate judge did not recommend dismissal of the negligent misrepresentation claim. The City argued that the Center could not have relied on the staff representations since it still required City approval of its intended use. The magistrate judge disagreed, finding  persuasive the Center’s allegation that it relied on misrepresented information to determine that the planning approval process was appropriate, rather than the variance use process.

After due and careful consideration, the district judge ordered the recommendations be adopted, granting the dismissal of the facial challenges but denying the dismissal of the negligent misrepresentation challenge.

Original Photo by Moyan Brenn, some rights reserved.

$1.7 Million Settlement with DOJ and CAIR-MI

Original photograph by Anthony Easton, some rights reserved. https://www.flickr.com/photos/pinkmoose/

In 2011, Pittsfield Charter Township denied, allegedly without deliberation, Michigan Islamic Academy’s (“MIA”) application to rezone a 26 acre parcel (the “Property”) to allow the development of  a pre-K through grade 12 school.  MIA then sued the Township, alleging that the denial substantially burdened its religious exercise.  At the time, MIA operated a school in nearby Ann Arbor, but such facilities were overcrowded and MIA was forced to use on-site trailers to accommodate its 190 students.  As we reported last November, MIA’s lawsuit was dismissed because, according to the District Court for the Eastern District of Michigan, MIA did not have a sufficient property interest to maintain its RLUIPA claims because it never acquired a legally cognizable property interest in accordance with Michigan law.

After the dismissal, both the Department of Justice (“DOJ”) and the Michigan chapter of the Council on American- Islamic Relations (“CAIR”) filed separate lawsuits on behalf of MIA.

The DOJ described the settlement:

As part of the settlement, the township has agreed to permit MIA to construct a school on the vacant parcel of land, to treat the school and all other religious groups equally and to publicize its non-discrimination policies and practices.  The township also agreed that its leaders and various township employees will attend training on the requirements of RLUIPA.  In addition, the county will report periodically to the Justice Department.  In the separate settlement between MIA and the township, Pittsfield agreed to pay $1.7 million to resolve MIA’s claims for damages and attorney’s fees caused by the 2011 denial and the resulting delay in construction of the school.

In addition to the $1.7 million payment, MIA received the right to build a 70,000 square foot Islamic school, a residential development consisting of 22  duplex  units  and three single family homes, and a park. CAIR-MI’s press release regarding the settlement is available here.

Original photograph by Anthony Easton, some rights reserved.

Landmarking designation is alleged to violate RLUIPA

Guest Post by Tavo T. True-Alcala

A brewing dispute in Yonkers, NY has led the Islamic Community Center for Mid Westchester (ICCMW) to allege that Yonkers violated ICCMW’s rights under RLUIPA, and the First and Fourteenth Amendments of the United States Constitution.  The controversy began in the summer of 2015 when ICCMW submitted an application to undertake certain renovations at a property it owns within a residential district.  According to the complaint, the renovations are necessary so it can operate the property as a Mosque.  ICCMW, however, claims that it is now prevented from making necessary repairs because the City, after a petition by the Colonial Heights Association of Tax Payers (CHAT), designated the property as a historic landmark.  ICCMW now seeks a preliminary injunction “declaring the landmark designation discriminatory and void.”

ICCMW claims that it was opposed at every turn by CHAT, a group of local residents who had allegedly opposed similar religious projects in the past.  ICCMW argues that CHAT’s actions were motivated by prejudice and that, since a Mosque is a permitted use, CHAT settled on historic landmark designation as the way to force ICCMW to look elsewhere.  CHAT’s initial application was deemed insufficient, and ICCMW believes that even the approved application fails to establish that the property meets even one of the four historic designation criteria, which are that a building must:  be associated with persons or events of historic significance; be illustrative of historic growth and development; embody distinctive characteristics or be the work of a master; or contain unique architectural, archaeological, or artistic qualities.

In its request for injunctive relief, ICCMW reviews these criteria, and explains why its property does not meet any of the above standards.  It contends that the designation of its house based on reasons other than those legally allowed is no more than a pretext to accomplish a prejudiced and discriminatory agenda.

The obvious question presented by ICCMW’s petition is whether its request for relief is ripe—ICCMW has not applied to the City’s Landmark Preservation Board for a certificate of appropriateness to conduct the repairs and renovations it deems necessary for Mosque operations.  Addressing this point, ICCMW states:  “The landmark designation restricts ICCMW’s free will to construct and have a house of worship bearing all characteristics of a Mosque of their choice, either presently or in the future.  It curtails their ability to renovate the property.  The Muslim population in Colonial Heights has grown, and they have no house of worship nearby, hence the demand for a Mosque in Colonial Heights is ripe.”

This NBC News article about the case includes a photograph of ICCMW’s Yonkers property.

Nashville Islamic Center Claims Tax Rules Impose Unfair Burden

Nashville
Guest Post by Tavo T. True-Alcala

The Islamic Center of Nashville (ICN) recently filed a federal complaint and request for declaratory judgment against the State of Tennessee, the Metropolitan Trustee of Nashville, and the Tennessee State Board of Equalization after it was denied a request for retroactive property tax relief.

Since 1995, ICN has operated a religious school, the Nashville International Academy (NIA), an independently operating but related entity. To finance a new educational building, while still adhering to the Islamic tenet against interest-bearing loans, ICN entered into an Ijara agreement through which an entity related to Devon Bank held the property’s title until payments on the finance agreement were complete. The agreement lasted from August 2008 until October 2013, during which time ICN and NIA exclusively operated on the property, with no oversight by Devon Bank or its related entities. During this time no taxes were paid by the Bank or its related entities on the property, nor did it take any depreciation on the property for tax purposes.

In February 2014 ICN applied for a property tax exemption for the building, to be applied retroactively, seeking continuity of exempt status as provided by Tenn. Code Ann. 67-5-212(b)(3)(B). The tax exempt status was denied for the period prior to October 2013, when the Ijara payments were ongoing, but granted from that time onward. ICN appealed the decision before an Administrative Law Judge (ALJ) in January 2015, and after receiving an unfavorable ruling, appealed again to the Tennessee Assessment Appeals Committee, which also found that ICN was not entitled to the exemption prior to October 2013 due to the transfer of property in the Ijara agreement. Despite the adverse rulings, the ALJ and Appeals Committee expressed some degree of sympathy with ICN and discomfort that the law did not accommodate the religious need for Ijara agreements.

ICN contends that its refusal to pay interest is the sole reason it lost its tax exempt status, which it claims has done it harm by restricting its ability to develop property and develop other educational services. ICN’s complaint, available here, alleges violations of the Religious Freedom and Restoration Act (RFRA), its Tennessee counterpart, RLUIPA, state law,  and the First Amendment of the United States Constitution.

With regard to RLUIPA, ICN claims that the defendants favor non-Islamic religions and non-religious organizations, substantially burdening ICN, without a valid compelling governmental interest as justification. Furthermore, the denial penalizes ICN’s adherence to sincerely held religious tenets, thus violating its right to religious expression and religious exercise as required by RLUIPA.  ICN also contends that the laws of Tennessee, as applied to ICN, violate the Establishment clause’s purpose of “insur[ing] that no religion be sponsored or favored, none commanded, and none inhibited.” ICN is seeking a Declaratory Judgment that its actions are in accordance with the law as a religious institution by practicing the tenets of its religious faith.

Original photo by Brent Mooresome rights reserved.

R+C RLUIPA Lawyers Present at Touro Law

Land use litigation lawyers Ted Carey, John Peloso, and Karla Chaffee presented an update on the Religious Land Use and Institutionalized Persons Act (RLUIPA) for Touro Law’s Institute for Land Use and Sustainable Development Law on September 23, 2016. The presenters offered techniques for local governments to use in avoiding, mitigating, and defending against RLUIPA claims. They also discussed basic claims that can be brought under RLUIPA, the current state of religious land use litigation, and the courts’ varying interpretation and treatment of RLUIPA across the country, particularly in the Second Circuit. The session was the first Bagels of the Boards CLE program for Touro Law’s 2016–17 academic year.  A copy of the presentation is available here.

Thanks for having us, Touro Law!

RLUIPA Case of the Year? Minnesota Municipality Uses RLUIPA’s Safe Harbor Provision to Avoid Liability

In an important decision for municipalities across the country, a federal court in Minnesota has recently ruled that actions taken under RLUIPA’s “safe harbor” provision absolved a local government of possible RLUIPA violations.  This is especially noteworthy because few courts have considered the safe harbor provision.  According to the court, the City of St. Michael’s amendments to its zoning regulations to allow religious uses as conditional uses in the business zone (where they were previously prohibited), coupled with the granting of a conditional use permit, meant the City had to prevail.  The 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.

Here is the background.  Riverside Church held services in Big Lake, Minnesota, but needed to find a second location to accommodate its growth.  From 2004 to 2014, the Church’s attendance at Sunday worship services increased from 665 to nearly 1,500 people.  The Church identified property in the City of St. Michael’s business zone, about 12 miles south of Big Lake, that was formerly used as a 15-screen movie theater, and sought to purchase the property so that it could hold worship services there (“Theater Property”).  The Theater Property was for sale at just under $3 million, but the City’s zoning code, at the time prohibited religious uses from the subject business zone.

In July 2014, the Church submitted an application to amend the text of the zoning regulations to allow religious uses in the business zone.  Around the same time, the Church entered into a purchase and sale agreement for the Theater Property contingent on obtaining zoning approval to allow religious use of the property.  As the text amendment application was pending, the City Council imposed an across-the-board moratorium that barred “the use of any land for new or expanded assembly, theater, or church, purposes during the period of the moratorium.”  The purpose of the moratorium was to give the City time to study the impacts of these types of assembly uses in business zones.  The same day the moratorium was imposed, the City amended the zoning regulations by removing “theaters” (which had been allowed as-of-right) and replacing that use with “multi-plex theater” as a conditional use.

The Church and the City attempted to negotiate a compromise that would allow the Church to use the Theater Property, but negotiations fell apart and the City then denied the text amendment application.  In denying the application, the City issued its “Findings of Fact and Decision” in which it found that religious uses would have an adverse impact on other uses in the business zone and would cause parking, traffic, and infrastructure concerns.  The purchase and sale agreement for the Theater Property terminated.

In March, 2015, the Church entered into another purchase and sale agreement for the Theater Property for about $3.5 million, plus the cost of repairs and improvements to the property.  Three days later, the Church sued the City under RLUIPA, the U.S. Constitution, and Minnesota law.  While litigation was pending, the City utilized RLUIPA’s safe harbor provision to amend its zoning code.  The zoning code amendment removed “multi-plex theater” and added “assembly, religious institution, house of worship” as conditional uses.  In April, 2015, the City issued the Church a conditional use permit to use the Theater Property.  However, the Church was unable to purchase the Theater Property because the total cost, with the repairs and improvements, would be more than $5 million.

In considering the City’s motion for summary judgment, the District Court for the District of Minnesota ruled that the City’s use of the safe harbor provision relieved the City from liability under RLUIPA.  Specifically, the City’s amendment to the zoning code to allow religious uses in the business zone as conditional uses and its granting the Church a conditional use permit to use the Theater Property “eliminated any alleged substantial burden and any alleged discriminatory treatment” imposed by the former zoning code and denial of the Church’s text amendment application.

The Court also ruled that the substantial burden and equal terms claims failed regardless of the safe harbor provision.  Neither the former zoning code nor the denial of the Church’s text amendment application constituted a substantial burden, because: (a) they merely inconvenienced the Church, since the Church could have established a site in any of the remaining zones where religious uses were permitted, and (b) the City’s Findings of Fact and Decision shows that its actions were well-reasoned and not arbitrary and capricious.  The Court’s decision is noteworthy for its review of other circuits’ interpretations and applications of the substantial burden provision, as the Eighth Circuit had yet to define what is meant by “substantial burden.”

As for the equal terms claim, the Court utilized both the Third Circuit’s “regulatory purpose” and Seventh Circuit’s “accepted zoning criteria” tests.  According to the Court, the regulatory purpose for the business zone is to provide land for business and retail uses to strengthen the City’s economy.  Similarly, zoning criteria for the subject business district is to generate taxable revenue and shopping opportunities.  This led the Court to conclude:

With respect to these purposes and zoning criteria, a church is not similarly situated to a movie theater. A church is not in the business of selling items to the public and, as a non-profit entity, does not generate taxable revenue. A movie theater, in contrast, typically focuses on selling tickets and food to moviegoers and is a for-profit entity that generates taxable revenue.

Accordingly, the City’s pre-amendment prohibition of religious uses in the business zone did not violate the equal terms provision.

The Court also rejected the Church’s Free Exercise claim.  First, the zoning code’s ban on religious uses did not substantially burden the Church’s religious exercise.  Second, the moratorium, which prevented the Church from finding a new site anywhere in the City for a year, was neutral and generally applicable.

The Court declined entering summary judgment in favor of the City as to the Church’s Free Speech claim, because there remained a genuine issue of material fact with respect to whether the zoning ordinance’s ban on religious uses was “narrowly tailored” to advance the City’s government interests (strengthening the City’s economic base and providing employment opportunities).  Notably, however, the Court concluded that the subject ordinance was content-neutral under the Supreme Court’s decision in Reed v. Town of Gilbert, because the focus of the ordinance was on genuine public health, safety, and general welfare issues.

The decision in Riverside Church v. City of St. Michael (D. Minn. 2016) is available here.

Ocean, NJ ordered to allow Yeshiva boarding school

In January of this year, Yeshiva Gedola Na’os Yaakov, Inc. (the “Yeshiva”) filed a 79-page complaint in federal court against the Township of Ocean, New Jersey, and the Township’s Zoning Board of Adjustment (the “Township) following the denial of an application to develop a yeshiva with boarding facilities for 96 male students between the ages 18 and 22 in a residential zone, to allow for advanced Talmudic study (the “School”).  The Yeshiva had applied for a use variance, associated bulk variances, and site plan approval for the School, but the Board of Adjustment denied the application after conducting ten hearings over the course of a year and a half. The Yeshiva, among other arguments, pled that the Township’s zoning code was discriminatory because it prohibits religious boarding schools for students over the age of 18 in all districts. More details regarding the Yeshiva’s complaint are available in our prior post.

After a hearing on the Yeshiva’s motion for a preliminary injunction, the court ordered reversal of the Township’s denial, finding the proposed school is an “inherently beneficial use, and the denial of [the] application…  a violation of RLUIPA.”  The reasoning of the court is not provided since the parties waived findings of fact and conclusions of law.  The court granted approval to operate a religious boarding school for no more than 80 students age 18 through 22, subject to several conditions, including:

  • Compliance with site plans previously submitted to the Township;
  • Prohibiting students from bringing cars on campus;
  • Conversion of a gymnasium currently on site to a study hall;
  • Applying for necessary building, electrical and plumbing permits, as well as meeting all ADA requirements; and
  • Making a variety of minor site improvements (fencing, window coating, modification to a parking area, etc.).

The court also referred any claim for damages and attorney’s fees to mediation, but retained jurisdiction over the case until the Township issues a certificate of occupancy. The court’s order in Yeshiva Gedola Na’os Yaakov, Inc. v. Township of Ocean, New Jersey, Civ. No. 3:16-00096 (D. N.J. 2016) is available here.

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