The Chabad House for Towson University and Goucher College, pictured above, has filed a lawsuit against Baltimore County, Maryland (the “County”), following a state court order requiring demolition of a newly-constructed addition to the Chabad House. The Complaint alleges, among other things, violations of RLUIPA’s substantial burden, equal terms, nondiscrimination, and exclusions and limitations provisions.
The story begins in 2008, when Friends of Lubavitch, Inc. (“Lubavitch”), a religious corporation founded to support and develop religious and educational activities in Maryland, purchased property zoned “DR 5.5” (Density Residential, 5.5 dwelling units per acre) adjacent to Towson University and less than two miles from Goucher College (the “Property”) for use as a Chabad House to provide Jewish religious education and hospitality for students at the two schools. According to Lubavitch, it selected the Property because of its proximity to the institutions, so that students would have the option to walk to the Chabad House on the Jewish Sabbath and festivals. The nearest Orthodox Jewish synagogue is seven miles from the Property.
Rabbi Menachem Rivkin and his wife, Sheina Rivkin (together with Lubavitch, “Plaintiffs”), have been assigned by the Chabad-Lubavitch Hasidic movement to reside at the Property and assist local Jews in the exercise of their religious observances since in 2008. After three years at the Property, Plaintiffs began contemplating the construction of an addition to the Chabad House (the “Addition”), and Rabbi Rivkin consulted County officials about the process. He was told to discuss the proposal with his neighbors, which he did.
In mid-2014, after Plaintiffs had obtained financing for the Addition, Rabbi Rivkin again consulted County officials, including the Director and Assistant Director of Permits, Approvals and Inspections of Baltimore County. According to the Complaint, the Director told Rabbi Rivkin that he would grant a building permit for the Addition if Chabad House qualified under local zoning laws as a “synagogue.” However, Plaintiffs had no intention of constructing or operating a synagogue on the Property, and at the request of their neighbors, opted not to formally request that the Addition qualify as a synagogue.
In January 2015, allegedly without warning, the County issued Plaintiffs a citation for operating an “illegal House of Worship / Religious Institution” that did not meet “the [residential transition area] requirements, the parking requirements and the Non Residential Principle Setback requirements” of County Zoning Regulations. The citation further alleged that the Chabad House was a “Community Building” that had not been subject to a “Special Exception hearing.”
As the County requires compliance with zoning prior to issuance of a building permit, the effect of the citation was to delay construction of the Addition. In order to clear the citation, allegedly at the advice of County officials, Plaintiffs attended a series of hearings over several months, at significant expense. Finally, on April 19, 2016, the County issued a building permit for the Addition, and construction started shortly thereafter.
On July 27, 2016, a neighbor informed Rabbi Rivkin that the Addition was being built in a setback area in violation of a covenant in a property deed from 1950. According to the Complaint, it was too late to terminate construction and revise the plan without enormous expense, so construction continued as planned.
Later that year, the neighbor brought suit to enforce the 1950 covenant. In April 2017, following a trial, the Circuit Court for the County ordered “removal” of the violation of the 1950 covenant. This decision was affirmed by the Court of Special Appeals of Maryland in October 2018. The following week, the Circuit Court issued an opinion rejecting a receiver’s recommendation that the Addition be relocated on the Property, instead ordering Lubavitch and the Rivkins to “raze” the Addition, for which construction had been completed at a cost of $800,000.
In making this decision, the Circuit Court found that Plaintiffs’ failure to cease operations upon issuance of the citation represented repeated zoning violations, and thus Plaintiffs had “unclean hands.” In its opinion, the Circuit Court stated that enforcement of its 2017 Order in a manner other than demolition of the Addition would “tacitly endorse that which has been repeatedly found to be a violation of existing restrictions in the residential community [and] would constitute an abuse of this Court’s discretion[,]. . . precisely the type of circumstance that the doctrine of unclean hands is intended to protect against.”
Shortly thereafter, Plaintiffs filed suit against the County in a Maryland federal district court, alleging that the County’s actions to enforce its zoning regulations, which were the basis for the Circuit’s October 2018 demolition order, violate RLUIPA’s substantial burden, equal terms, nondiscrimination, and exclusions and limitations provisions; the First Amendment’s free exercise clause; the Fourteenth Amendment’s equal protection and due process clauses; and Maryland common law.
The Complaint in Friends of Lubavitch, Inc. v. Baltimore County, Maryland, No. 1:18-cv-03943-GLR (D. Md.), is available here.
The Circuit Court for Baltimore County’s opinion in Zoll v. Friends of Lubavitch, No. 03-C-16-008420 (Oct. 31, 2018), is available here.