We previously reported on the case 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), in which the court found that certain of the Township’s zoning ordinances violated RLUIPA’s equal terms provision (click here to read the previous post).  In particular, the court found that Millburn’s Zoning Ordinance treats houses of worship unequally as compared to private and public schools, both “conditional uses” in the residential zoning district.  Although the Zoning Ordinance required that houses of worship be located on lot areas of at least three acres with one parking space for every three seats in the house of worship, it permitted private and public schools on lot areas of only two acres and imposed no minimum parking requirements.  Chai Center sought zoning approval from the Zoning Board of Adjustment to construct a synagogue on 1.8 acres, but was denied on the ground that the 1.8 acres was too small for the proposed synagogue.

At the December 17, 2013 Township Committee meeting, an amendment to the Zoning Ordinance was passed to bring area requirements in line for educational and religious buildings.  The amended ordinance also raises the minimum area required for a public or private school to 3 acres, the same amount of acreage as is required for houses of worship.  In addition, the proposed ordinance would change the parking requirements as follows:

• Houses of worship must have one parking space for every three seats within the sanctuary or worship hall or five spaces per 1,000 square feet of gross floor area, whichever is greater
• Public and private schools must have two parking spaces per classroom for grades k-8 and three spaces per classroom for grades 9-12
• Places of assembly must have one parking space per three seats or five spaces per 1,000 square feet of gross floor area, whichever is greater.

The amended ordinance also imposes the same buffer and setback requirements for houses of worship as it does for public and private schools.  The full text of the amended ordinance can be accessed here.

Attorneys representing Chai Center, however, have stated that the amended ordinance violates RLUIPA’s exclusions and limitations provisions:

“Our planners [sic] testimony before the zoning board was clear, there really aren’t any available 3-acre parcels in the residential zone that also allow for all of the other conditions the proposed ordinance requires.  By including conditions in the proposed ordinance that no new house of worship will be able to comply with, the township has gone from Judge Lombardi’s ruling that the old ordinance violated the equal terms provision of RLUIPA to proposing a new ordinance that clearly violates the exclusions and limitations provisions of RLUIPA.  It appears to us that the Township has simply replaced one violation of federal law with another.”

RLUIPA’s exclusions and limitations provision is: “No government shall impose or implement a land use regulation that – (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.”  42 U.S.C. § 2000cc-(b)(3)(A), (B).  To learn more about this provision, see the recent decision by the United States Court of Appeals for the Seventh Circuit in Eagle Cove Camp & Conference v. Town of Woodboro, No. 13-1274 (7th Cir. 2013) available here and our post about the case.

We will report back on this case as we learn more.  Read the local paper’s coverage of the case here and here.