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.

The Decision

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.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

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Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.

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