Chai Center for Living Judaism, Inc. v. The Zoning Board of Adjustment for the Township of Millburn, No. ESX-L-9244-11 (New Jersey Superior Court 2013) involves a Jewish institution’s application for a variance to construct a 16,500 square foot synagogue on 1.8 acres in a residential zoning district. Chai Center for Judaism, Inc. (“Chai Center”) applied to the Zoning Board of Adjustment for the Township of Millburn (the “ZBA”) for a variance in 2010. The public hearing ran for an astounding 17 sessions, finally closing in 2012. To view Chai Center’s proposed plans, click here.
Some neighbors who organized as The Concerned Neighborhood Association of Millburn, Township, Inc. opposed Chai Center’s application. The group released this statement of its position:
“Millburn Township has an approved Zoning Ordinance and land use plan. If the Zoning Ordinance needs changes, by all means it should be updated and amended on a town wide basis in a legal manner. But otherwise, our group doesn't accept special zoning for special interests anywhere in Millburn. Allowing substantial variances can hurt a great town's plan.
In this case, the Chai Center is bringing in a team of lawyers, engineers, architects, planners, and traffic experts to the Zoning Board of Adjustment asking for a major variance to the approved Millburn Zoning Ordinance to build their 16,350 square foot building.
The Chai Center is asking for a special variance that would allow them to tear down two current homes and replace them with a massive new building at the corner of Jefferson Avenue and Old Short Hills Road. They are requesting this exception to the town Zoning Ordinance even though they are more than an acre shy of the legal or required size.
This is not a neighborhood story or a religious issue but a fairness issue. If zoning calls for 3 acres to build a large house of worship or any other structure this size, why should an exception be made.”
To view The Concerned Neighborhood Association of Millburn, Township, Inc.’s website, click here.
In February 2012, the ZBA found that the 1.8 acres was too small for the proposed building and denied the variance application. Shortly thereafter, Chai Center filed suit with the New Jersey Superior Court alleging that the City of Millburn Zoning Ordinances (the “Zoning Ordinances”) treat “house of worship” uses unequally as compared to other non-religious assemblies.
The Zoning Ordinances
The Zoning Ordinances allow “houses of worship” as conditional uses. In particular, § 606.2d(1) of the Zoning Ordinances provides:
“Houses of worship shall be permitted on primary, secondary, and collector streets as shown on the circulation plan of the Master Plan. Parking areas shall be adequately screened and traffic separated as much as possible from nearby residences. The minimum lot area shall be 3 acres, and the lot coverage shall not exceed that set forth for the zone in which the house of worship is located.”
Further, § 607.2(d) of the Zoning Ordinances, which governs the minimum parking requirements for certain uses, provides that a house of worship use must provide at least one parking space for every three seats in the house of worship.
Unlike houses of worship, which require a minimum of 3 acres, a school use under the Zoning Ordinances needs just 2 acres: “Public and private schools shall be permitted on lots of 2 acres or more, and the lot coverage shall not exceed that set forth for the zone in which the school is located. Parking areas shall be adequately screened and traffic separated as much as possible from nearby residences.” See Zoning Ordinances, § 606.2d(2). Also unlike houses of worship, schools have no minimum parking requirement.
In an oral decision, the Court, relying on the Third Circuit case The Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, No. 03-2343 (2013), found that a “school” use was a valid comparator to a religious use under a facial challenge to RLUIPA’s Equal Terms provision. (Editor’s Note: The Eighth Circuit case Rocky Mountain Christian Church v. Bd. of County Comm’rs of Boulder County, Colorado, No. 09-1188 (8th Cir. 2010) also found that a school is a valid comparator to a religious institution under RLUIPA’s Equal Terms provision.) The New Jersey Superior Court found that the Lighthouse case determined that if a land use regulation treats religious institutions and non-religious assemblies on less than equal terms, the municipality must point to specific governmental objectives regarding the difference in treatment. If the municipality cannot point to specific objectives, then the zoning regulation violates RLUIPA. With that in mind, the Court stated:
“. . . [T]here has to be shown that there is a factual issue that the governmental objectives in enacting schools at two acres and churches at three acres, that you have to show something.
And what you have to show . . . churches [are] not similarly situated to the school, with respect to the aims of the plan. And, more particularly, as to the particular regulation being challenged. . . .
And you have to consider what the regulation seeks to advance. What does this regulation seek to advance? And . . . we’re not talking about the general objective that everybody loves schools, or the general objective that everybody . . . loves churches in this town or there’s religious freedom . . . .
. . . [W]hat you have to focus on is what the regulation seeks to advance. The regulation seeks to advance that schools be permitted on smaller acreage than houses of worship.”
The Court found that there was nothing express in the Zoning Ordinances or the record as to why houses of worship were treated differently than schools as to the required lot size thereby suggesting that schools could be a fair comparator. The Court further found that the sole objective of the differences was to permit schools on smaller lots. The ZBA failed to provide credible evidence of the reason behind the Zoning Ordinances’ requirements that a school use be allowed on only 2 acres, but a house of worship must have at least 3 acres. Without support from the Zoning Ordinances or the City’s land use plan, the Court did not accept the ZBA’s assertion that the reason for the difference is that small children are dropped off at school. Further, the Court found that ZBA failed to proffer evidence to justify imposing the minimum parking requirement on a house of worship, but not on a school. Accordingly, the Court granted Chai Center’s motion for summary judgment, striking as invalid §§ 606.2d(1) and 606.2d(2) of the Zoning Ordinances.
The Court awarded attorneys’ fees to Chai Center, but reserved judgment on the specific amount to be awarded. It also reserved judgment as to what it should require of the ZBA on remand and requested further briefing on that issue.
*Special thanks to Elliot Ostrove of Day Pitney LLP, counsel for Chai Center, for providing the transcript of the summary judgment hearing.