BREAKING NEWS: JACKSON TOWNSHIP SET TO PERMIT DORMITORIES

The day when dormitories will be more legal in Jackson than in Lakewood has just gotten much closer.

At a special meeting to be held next Monday, July 31, the Jackson Township Planning Board is set to formally recommend, by way of a Master Plan Reexamination Report, that the Township adopt an Ordinance permitting dormitories in certain zones, to comply with the Township's settlement agreement with the Justice Department, and also to expand the zones where shuls and mikvahs are permitted, as a result of litigation with Agudath Israel of America in which the Township is additionally seeking to resolve certain claims regarding zoning standards related to houses of worship.

For background, here is where things began:

On March 14, 2017, Jackson Township's Council adopted ordinance 03-17 which limited private schools as a permitted use in only one zone, in which there happened to be not much usable space available for building the permitted schools (plus, the lot area requirement in that zone was 500 acres), and banned dormitories in all zones.

The council also adopted ordinance 04-17, which expressly stated that dormitories are not a permitted use in any zone, effectively completely banning dormitories from getting built in their township unless you would be granted a use variance from their zoning board.

(Effectively, the Council adopted 2 ordinances which both ban dormitories, one of the ordinances additionally bans private schools).

At the time, the council included Council President Rob Nixon, and members Kenneth Bressi, Bary Calogero, Ann Updegrave, and Scott Martin. Mayor Mike Reina does not vote on adoption of ordinances but he did sign the ordinances into law.

Within the 45 day time limit to sue in court to overturn ordinances, in May 2017 Agudath Israel of America filed a lawsuit in federal court seeking to overturn the ordinances. The case was sent to mediation and Jackson Township shlepped things out, clearly showing that they were not a willing party to sit and discuss the matter.

At the end of 2018, Council Members Ann Updegrave and Scott Martin retired from office, and were replaced by Andrew Kern and Alexander Sauickie III. In November 2019, amidst this lawsuit and other anti-Semitism claims, Council President Rob Nixon suddenly resigned from office. Barry Calogero inherited his seat. In January 2020, Martin Flemming was chosen by the other council members to fill Nixon's empty seat.

On May 6, 2020, Barry Calogero, who had just made headlines for suggesting that the National Guard should come protect Jackson from the Coronavirus that was then spreading in neighboring Lakewood, announced his resignation effective May 13th.

Calogero was absent from the May 12th meeting, which was attended by Council Vice President Alex Sauickie and members Kenneth Bressi, Andrew Kern, and Martin Flemming.

At that meeting, the council introduced ordinance 05-20 to repeal ordinance 03-17, and make "private or parochial schools not operated for profit" into a permitted use in many zones. The ordinance delineated that "public and private colleges or universities shall not be permitted". They also introduced ordinance 06-20 to repeal ordinance 04-17 "in its entirety" which would remove dormitories from the prohibited use list.

For both ordinances, Mr. Kern offered the motion, Mr. Fleming offered the second; Mr's Flemming, Kern, and Sauickie voted in support of the ordinances, and Mr. Bressi abstained from voting on either ordinances.

Council members stated on the record that they were not the same members who adopted the 2017 Ordinances, and they announced that both ordinances will be placed on their May 26th meeting agenda for adoption on final reading.

Amazingly, a mere two weeks later, on May 20, 2020, the U.S. Department of Justice filed a lawsuit against Jackson Township and its planning board alleging they "violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Fair Housing Act (FHA) by targeting the Orthodox Jewish community through zoning ordinances restricting religious schools and barring religious boarding schools."

(RLUIPA is a federal law that protects religious institutions from unduly burdensome or discriminatory land use regulations.)

The complaint, filed in the District of New Jersey, alleged that the township passed ordinances 03-17 and 04-17 and the planning board applied those ordinances in a manner that discriminated against the Orthodox Jewish community. Both ordinances expressly prohibit dormitories throughout Jackson, making it impossible for religious boarding schools such as Orthodox Jewish yeshivas to operate there. Although Jackson passed these ordinances to prevent dormitories anywhere in Jackson, the planning board has since approved, without requiring a variance, the plans for two nonreligious projects with dormitory-type housing.

The complaint further alleged that the township and planning board enacted the ordinances against a backdrop of extreme animus by some Jackson residents and township decision makers toward the Orthodox Jewish community and a movement by residents to keep Orthodox Jewish individuals from settling in Jackson. The complaint alleges that the township and planning board’s actions towards the Orthodox Jewish community violate RLUIPA’s non-discrimination and equal terms provisions, as well as the FHA.

Seemed that the simplest fix would have been for the Township Council to show up at their next meeting on May 26 and vote, as scheduled, on their 2 repeal ordinances which were all shiny and ready to go, right? Except that this was Jackson Township where apparently things just can't be that simple.

On May 26, the council only adopted Ordinance 05-20, noting that the 2017 dormitory ban was actually "redundant", because that ordinance specifically listed dormitories as a non-permitted use, when in fact, prior to the March 14, 2017 adoption of their ban, dormitories were anyways not a permitted use. Hence, it was redundant to specify that it was a non-permitted use.

However, they tabled voting on Ordinance 06-20 and said they were holding that until their June 23rd meeting.

They also commented on the Justice Department's lawsuit, saying it "contained many inaccuracies."

June 23rd came and went and the council did not bother to vote on Ordinance 06-20, effectively giving the Justice Department a green light to charge forth with their lawsuit.

After dragging things out in court for 2 full years, on June 15, 2022, Jackson Township and the Justice Department signed a Consent Decree whereby they agreed to settle the lawsuit by Jackson Township repealing the remaining active discriminatory 03-17 ordinance and "replace it with an ordinance that will allow religious elementary and secondary schools, religious higher learning institutions and religious residential schools in numerous residential and other zoning districts, and permitting associated housing such as dormitories as an accessory to private, parochial, and public schools in certain zoning districts."

The consent order specifies that the new zoning ordinance is required to treat religious schools equally with non-religious institutions that operate in the Township.

The order also enjoins Jackson Township and its Planning Board from "imposing or implementing a land use regulation in a manner that treats a religious assembly or institution on less than equal terms than a nonreligious assembly or institution; discriminating against any religious assembly or institution, or their members, on the basis of religion or religious denomination; otherwise engaging in any conduct that violates RLUIPA and/or the FHA; coercing, intimidating, threatening, interfering with, or retaliating against any person in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by RLUIPA and/or the FHA; and discriminating in the sale or rental, or otherwise making unavailable or denying dwellings, because of religion."

The consent further requires Jackson Township to, within sixty days of the Order’s entry date, implement certain procedures to ensure notice is provided to the public of this Order and its requirements. This includes that, upon receipt of an application or inquiry about a zoning or land use determination concerning a property intended or used for religious purposes, the Township Council and land use boards shall provide to the applicant or the person inquiring a notice that conforms in content to a specific form notice.

Finally, the consent order requires the Township to train its officials and employees on the requirements of RLUIPA and the FHA, establish a procedure for receiving and resolving RLUIPA and FHA complaints, pay a civil penalty of $45,000, and pay $150,000 into a settlement fund from which aggrieved persons can seek payment.

The Consent Order was signed and announced by both parties on June 15, 2022. It was signed by a judge on July 7, 2022.

Jackson Township has already fulfilled the "notice" requirement by posting certain public notices regarding the settlement of the lawsuit and the ways that aggrieved persons can file complaints regarding Religious Discrimination relating to land use applications.

However, to date, the Township has not yet adopted an Ordinance that will allow religious elementary and secondary schools, religious higher learning institutions and religious residential schools in numerous residential and other zoning districts, and permitting associated housing such as dormitories as an accessory to private, parochial, and public schools in certain zoning districts.

Now, finally, Township officials are poised to advance such an Ordinance.

The Planning Board has now prepared a Master Plan Reexamination report, which will formally recommend the adoption of the new Ordinance.

This report, which will be reviewed and adopted by the Board at a special meeting to be held next Monday, July 31, also recommends expanding zoning districts in which houses of worship and religious bath facilities will be permitted as well. The report notes that the schools and dormitories are being recommended as a result of the Settlement Agreement between the Township and the Justice Department, and that houses of worship and religious bath facilities are being recommended "as a result of litigation with Agudath Israel of America, [in which], the Township is additionally seeking to resolve certain claims regarding zoning standards related to houses of worship."

As previously reported here on FAA News, back in March, the Township Council introduced Ordinance 14-23 which would expand the zoning districts in which shuls and mikvah's would be permitted. In that Introduced Ordinance, shuls will continue be permitted only as a Conditional Use, which means that any variances would still require Zoning Board approval. The Planning Board's current Master Plan Reexamination report does not address whether shuls should continue to be permitted only as a conditional use, or if it should be a permitted use, rather, the report just says that the Township should "establish area, bulk and design standards in order to protect the existing character of the Township."

The Master Plan Reexamination Report states:

As the Township continues to grow and develop, and demographic changes occur, Jackson Township has found it necessary to re-evaluate current zoning standards. Recently, Jackson Township has experienced a significant increase in development applications for schools and houses of worship. These applications have presented shifts in how the Township has traditionally viewed these uses, and while the existing ordinance does provide some zones in which both uses are permitted, it has become apparent that standards need to be reevaluated. The existing ordinance simply permits schools and houses of worship in various districts, without providing additional requirements as to site layout, design, circulation, etc. The existing ordinance does not consider the intensity of use and rather treats a school or house of worship with 50 members in attendance the same as if 200 members were in attendance. With a shift in application type away from the large lot, parking intense traditional approach to both schools and houses of worship, there is now the need to provide additional guidance that carefully considers the size and intensity of a use in relation to the health, safety, and welfare of the community. Additionally, in light of recently submitted development applications which anticipate low intensity dormitory uses, the Township should consider its ability to regulate this accessory use to preserve surrounding neighborhoods, prevent unwarranted congestion of associated roadways, as well as the community as a whole.

Considering recent development applications and existing ordinance standards, the Township finds it necessary to amend the Master Plan to provide recommendations to guide the ordinance revisions associated with these uses.

The Master Plan Reexamination report provides for the following recommendations:

a. Where appropriate, permit schools as permitted use in the R-2, R-3, R-5, R-9, R-15, R-20, MF, PV, RG-2, RG-3, RD-1, PM-1, LM, I, NC, and LC zoning districts.

b. Where appropriate, permit institutions of higher learning as a permitted use in the PM-1, I, LM, PV, RG-2, RG-3, NC, and LC zoning districts.

c. Establish an overlay zone to permit higher learning institutions on parcels zoned R-3 and R-5
with frontage on the following roadways: Bennetts Mills Road (from West Veterans Highway
to Howell Township border), Cedar Swamp Road (entire length), Farmingdale Road (between
Pfister Road and Howell Township border), Frank Applegate Road (between Bennetts Mills
Road and Jackson Mills Road), Thompson Bridge Road (entire length), Harmony Road
(between County Line Road and Hyson Road), Jackson Mills Road (between Freehold
Township and East Commodore Boulevard).

d. Where appropriate, permit dormitories and student residences as an accessory use in a new R- 3/R-5 overlay zone, PV, RG-2, RG-3, PM-1, LM, I, NC, and LC zoning districts.

e. Where appropriate, permit houses of worship as a permitted use in the R-1, R-2, R-3, R-5, R-
9, R-15, R-20, RG-2, RG-3, PMURD, MF, HC, RD-1, LC and NC zoning districts.

f. Where appropriate, permit religious bath facilities as an accessory use in the R-1, R-2, R-3, R-
5, R-9, R-15, R-20, R-30, MF, PV, RG-2, RG-3, RD-1, PM-1, LM, PMURD, MUNC, and I zoning districts.

g. Where appropriate, permit religious bath facilities as a permitted use in the NC, HC, and LC
zoning districts.

(Currently, private schools have recently presented "by-right" plans to the Township Planning Board; this is a result of the injunction Agudath Israel received in May 2021 which interimaly struck down Jackson Township's ordinances banning schools and Eruvim, however, dormitories were not included in this injunction. They were only litigated by the Justice Department.)

The adoption of this new Ordinance may signal the beginning of a new era that dormitories are welcome in Jackson Township, perhaps even more so than in Lakewood.

As the news was first broken here on FAA News, in response to a lawsuit filed by adjoining neighborhoods seeking to overturn the Lakewood Township Planning Board's approval of a dormitory expansion for Yeshiva Toras Chaim, located at 999 Ridge Avenue, Ocean County Superior Court Judge Marlene Ford did overturn the approval.

Additionally, as more recently reported here on FAA News, there is a lawsuit currently pending which seeks to overturn the Lakewood Township Planning Board's approval of a dormitory expansion for Yeshiva Birchas Chaim, located at 1111 Vine Avenue.

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