Original photography by Gerard Montigny (Licensed

A federal court in the District of New Jersey has determined that claims asserted by the Congregation Kollel, Inc. (“Congregation”) against the Township of Howell, New Jersey (“Township”), based on the allegedly improper denial of a land use permit to build a Jewish educational facility, are ripe for review.

The Congregation’s Proposed Plans

The Congregation has owned and operated a higher Talmudic academy for the training of rabbinical judges in Lakewood, New Jersey since 2005. In 2014, the Congregation decided to expand its educational facilities to include a mesivta, a religious educational facility that emphasizes Talmudic studies for students that are of post-bar mitzvah age, and a yeshiva gedola, a religious educational facility for Talmudic studies for undergraduate-level students. The Congregation’s plan envisions hiring ten to thirteen faculty members and enrolling up to 90 students at its yeshiva gedola. The students would live in on-site dormitories, and seven attached townhouses would be built for faculty housing. One classroom building, which would operate seven days a week, would also be constructed. The Congregation has not proposed to build a separate synagogue or to advertise religious services.

Upon recognition that its Lakewood facility had reached capacity, the Congregation sought alternative locations for its mesivta and yeshiva gedola. In Spring 2015, the named plaintiffs purchased a 10.1 acre property in the Township (“Property”), situated in the Township’s “ARE-2” zoning district. The Township’s Zoning Code (“Zoning Code”) permits certain uses as of right in the ARE-2 zone, including single-family residences, group homes, public recreation, municipal buildings, and educational facilities. The Zoning Code does not define an “educational facility,” a term which was added to the Zoning Code in 2007 pursuant to 2006 updates to the Township’s Master Plan. According to the Congregation, these updates reflected an effort by the Township to secure grants from the state for “educational facilities.” A New Jersey statute defines the term as: “a structure suitable for use as a dormitory, dining hall, student union, administration building, academic building… and other structures or facilities related thereto or required or useful for the instruction of students… but shall not include any facility used or to be used for sectarian instruction or as a place for religious worship.” N.J.S.A. § 18A:72A-3.

The Congregation’s Application

On August 19, 2015, the Congregation filed an application and concept plan with the Township, “seeking confirmation that [its] proposed educational facility is a permitted use within the ARE-2 zone.” Less than two weeks later, the Township’s Director of Land Use denied the application. He explained that while the non-residential component of the plan is permitted, the residential components are not and, moreover, that only one principal structure is permitted on a given lot. The Director instructed the Congregation to apply for a variance with the Township’s Board of Adjustment (“Board”).

The Congregation timely appealed the Director’s decision to the Board, asserting that “student and faculty housing is part of the principal educational facility use of the property” and, alternatively, “that these uses are permitted accessory uses of the property, and that the four structures proposed on the property constitute a permitted institutional building complex.” The Congregation also applied for a variance, as an additional alternative ground for relief.

The Board held two public hearings on the application: one on December 21, 2015 and one on February 29, 2016. The Board unanimously voted to uphold the Director’s decision on March 28, 2016, reasoning that while the State’s definition of “educational facility” may broadly permit dormitories and other structures related to the operation of such facilities, it specifically excludes “any facility” used for religious instruction or worship. Furthermore, the Board found that the dormitories and faculty housing are not properly categorized as customary and incidental to an educational facility, calling it a “matter of semantics in referring to the project as an educational facility.”

An amendment removing the term “educational facilities” from the list of permitted uses within the ARE-2 Zone was adopted on January 25, 2016.

The Lawsuit

On May 2, 2016, the Congregation filed an eleven-count complaint with the District of New Jersey, alleging RLUIPA violations (substantial burden, nondiscrimination, equal terms, and exclusion and limits provisions), as well as violations of the First and Fourteenth Amendments, the Fair Housing Act, the New Jersey Law Against Discrimination, and the New Jersey Constitution. Additionally, the Congregation sought an action in lieu of prerogative writ under New Jersey Municipal Land Use Law.

On July 6, 2016, the Township moved to dismiss the Congregation’s complaint for lack of ripeness. The Township argued that each of the Congregation’s federal claims is based on a Board decision that cannot be construed as final given that the Board has not yet rendered a decision on the Congregation’s variance application.

Ripeness Review

As an instant matter, the Court determined that the Congregation’s facial challenge to the Township’s land use regulations was not sufficiently alleged. It therefore primarily analyzed the ripeness of the Congregation’s claims under the framework of an “as-applied” challenge.

In reviewing the Congregation’s RLUIPA claims, the federal district court applied the “relaxed” ripeness test set forth by the Second Circuit in Murphy v. New Milford Zoning Commission, and implicitly adopted by the Third Circuit in Congregation Anshei Roosevelt v. Planning & Zoning Board. Namely, the Court utilized a two-step test to determine whether the Township’s land use decision could be construed as final, asking: “(1) whether an immediate injury had been sustained; and (2) whether further development of the factual record would result in improvements in the administration of justice.”

The Court answered the first question in the affirmative, finding that, if the Congregation’s allegations are true, the Township was “motivated by a religious animus to deprive [the Congregation] of [its] right to free exercise of religion by imposing land use regulations that violate multiple sections of RLUIPA,” and such allegedly discriminatory conduct has prevented the Congregation from erecting a yeshiva gedola and mesivta on the Property, creating an “immediate and tangible injury.”

As to the second question, the Court answered in the negative, finding that the Board had already made a final determination regarding the Congregation’s proposed use: it is not permitted as an educational facility. Further, the Court determined that the variance process would not develop any additional factual record on such an already-decided issue. As a result, the Congregation’s RLUIPA claims stand ripe for review.

With respect to the Congregation’s other claims (with the exception of the prerogative writ claim), the Court likewise determined that the Congregation need not apply for a variance in order to seek judicial review. The full text of the opinion is available here.

Original photography by Gerard Montigny, some rights reserved.