BAIS BRUCHA TO HAVE THEIR DAY IN FEDERAL COURT

Bais Brucha, led by Rabbi Mordechai Sekula, is set to have a big day in federal court this Tuesday, September 5, 2023 regarding long running litigation against the Township of Toms River and its Zoning Board.

Bais Brucha seeks to construct a small shul on their property at 1191 and 1181 Hickory Street in the North Dover area of the Township where their Orthodox Jewish congregation lives.

On August 26, 2020, Bais Brucha filed an application with the Township for a zoning permit to construct a 

4,680-square foot house of worship on the property. The application was denied by the Zoning Officer on September 24, 2020. Bais Brucha appealed the denial of its application to the Zoning Board and a hearing was held on January 14, 2021.

In a final decision, the Zoning Board upheld the denial of the application because churches and places of worship were not a permitted use in the Rural Residential (“RR”) Zone.

Following this denial, Bais Brucha filed a lawsuit in United States District Court in the District of New Jersey seeking to overturn the denial, alleging that the Township and the Zoning Board "have repeatedly taken actions targeting the Orthodox Jewish community, prohibiting places of worship from the zoning district where much of the Orthodox Jewish population (including Bais Brucha's congregation) resides, and imposing more onerous restrictions on places of worship than on other similar land uses."

The Complaint specifically alleges that Bais Brucha's efforts to build a house of worship have taken place during a rising tide of anti-Semitism among the Toms River government and population, and that the Township’s laws and actions discriminate against religion, were motivated by religious animus, and have prevented Bais Brucha from engaging in religious exercise.

At the time the denials were issued, the Township's ordinance prohibited a place of worship as either a permitted or conditional use in the RR zoning district, however, it did permit many other nonreligious assembly and institutional land uses.

Additionally, at the time the denials were issued, other Township zoning regulations discriminated against houses of worship. The minimum lot area requirement for places of worship in zoning districts where they were permitted was an unreasonable, impracticable, and discriminatory ten acres. The requirements for various other nonreligious assembly and institutional land uses in the Township were far less, or even non-existent. The minimum lot width for places of worship, where they were permitted, was 300 feet. The requirements for various nonreligious assembly and institutional uses in the Township were far less, or non-existent. The maximum impervious coverage requirement for places of worship, where they were permitted, was 40%. The requirements for various nonreligious assembly and institutional uses in the Township were far higher, or non-existent.

Subsequently, the United States Department of Justice (“USDOJ”) conducted a separate investigation of the Township, and ultimately filed its own Complaint in federal court alleging that these same zoning regulations challenged violate the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). RLUIPA, adopted by Congress in July 2000 and signed into law later that year by President Bill Clinton, bans towns from enforcing land use regulations that impose a "substantial burden" on religious exercise, "absent a compelling justification" that the restriction furthers a government interest.

Subsequently, the Township entered into a Consent Order with the USDOJ in which the Township stipulated that these same land use regulations violated RLUIPA. In the Consent Order, the Township agreed to abide by specific requirements that include amending its Code such that it does not violate RLUIPA and refraining from actions that violate RLUIPA.

On July 13, 2021, the Township enacted Ordinance 4700-21, which amended some of its land use regulations but failed to eliminate various requirements that continue to discriminate against religious uses and, in fact, included some requirements that were more discriminatory than before. On July 13, 2022, the Township enacted a second amendment, Ordinance 4752-22. This ordinance amended certain zoning provisions related to the parking requirements for Houses of Worship. Far from correcting the deficiencies in Ordinance 4700-21, this ordinance actually makes it much more difficult for new Houses of Worship to be built in the Township.

 

Both Ordinance 4700-21 and Ordinance 4752-22, which were enacted after the Zoning Board denied Bais Brucha application, have no effect on the past violations of Bnos Brucha's rights. Had the Township not treated religious land uses differently and worse than various nonreligious assembly and institutional land uses in violation of RLUIPA and the Constitution in the prior ordinance, Bais Brucha would have been permitted to build their shul on their Property at that time.

Had the prior ordinance not explicitly discriminated against religious land uses, Bais Brucha would have been able to obtain approval for its shul, build it, and 

would be praying there. Furthermore, Bais Brucha would never have been subject to the Township’s new but still discriminatory and highly burdensome zoning ordinance that continues to effectively prevent its use. (Bais Brucha is separately challenging the new ordinance, not subject to the instant motion).

Although the Township already amended the land use regulations at issue after the filing of this lawsuit, Bais Brucha is still proceeding with their lawsuit for monetary damages "because the controversy remains live" because they have suffered significant damages as a result of the Township’s laws and actions, including being required to acquire additional property, rental costs for other property, increased construction costs, expenditure of various professional fees, and other injuries.

Bais Brucha is now seeking monetary judgment on their claims that the zoning restrictions, which were in place when their use was prohibited, violated their rights under RLUIPA.

The six-count First Amended Complaint challenges the Township’s land use regulations and the denial of Bais Brucha’s application as follows:

1. Counts I through IV allege violations of RLUIPA based on the Township’s imposition and implementation of land use regulations that substantially burden Bais Brucha’s religious exercise, discriminate against them on the basis of religion, treat religious uses on an unequal basis compared to other uses, and impose unreasonable limitations on religious assemblies.

2. Count V alleges a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, based on the discriminatory treatment of religious land uses.

3. Count VI alleges a violation of the First Amendment’s Free Exercise Clause based on the discriminatory and burdensome treatment of religious land uses.

A different Orthodox Jewish congregation, Khal Anshei Tallymawr, filed a complaint against the Township for the same discriminatory and burdensome land use regulations. In that matter, the Township filed a motion to dismiss the plaintiff’s complaint based upon justiciability, exhaustion, mootness, and ripeness grounds. The Court denied the Township’s motion as to the plaintiff’s facial challenges under the Free Exercise clause, RLUIPA, and plaintiff’s as-applied challenges on all of its claims. The Court held that “these claims present a live controversy,” permitting the plaintiff to move forward on its claim for damages.

Bais Brucha is represented by Attorneys Christopher K. Costa, Robin N. Pick, Sieglinde K. Rath, Samuel L. Speed, and Roman P. Storzer Esq. of the Owings Mills, Maryland based law firm of Storzer and Associates, P.C. This firm is one of the nation's foremost RLUIPA land use attorneys.

Bais Brucha's instant motion seeks judgement for Partial Judgment on the Pleadings as to liability on Counts III, IV, V, and VI of their First Amended Complaint with respect to their challenges to certain provisions of the Township’s Code regulating houses of worship at the time of the denial of Plaintiffs’ zoning permit.

Attorney Scott Ketterer Esq. of the Edison, New Jersey based firm of Methfessel and Werbel, Esqs., representing the Township and Zoning Board, has filed Opposition to the Motion.

The Opposition vehemently disagrees that the "controversy remains live" and that Bais Brucha should be entitled to monetary relief because "the claims relative to the prior ordinance are mooted by the repeal and amendment to the Township’s Ordinances. Bais Brucha no longer faces the regulations set forth in the prior ordinance and the Township has made clear that it amended its ordinances to alleviate such burdens. As a general matter, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome. Under the circumstances, there is no reasonable expectation that the alleged violation will recur as the law has changed entirely and ultimately benefits Bais Brucha's proposed house of worship by making the same a conditional use in the RR zone. This effort began well in advance of this litigation and was done in an effort to make it easier for houses of worship to locate in residential zones in the Township. In short, the motion seeks judgment based on a now defunct Ordnance which cannot be enforced and has no prospect of being enforced or revived. Indeed, the Township has completely revised its Ordinances through proper procedures, much of which was publicly documented and even referred to by Bais Brucha in their motion."

Contrary to the allegations of the lawsuit that USDOJ only conducted a separate investigation “after Bais Brucha filed suit," actually, that investigation began in 2018 prior to Bais Brucha ever filing their application. For the period of 2018-2021, the Township and the DOJ were working to resolve the issues which prompted the investigation. The DOJ completed its investigation on September 17, 2020, but did not file its own complaint until March 10, 2021. The filing of the complaint also simultaneously resulted in a consent order as noted by Bais Brucha. Of note, the Consent Order contains no admission that the Township violated RLUIPA. Bais Brucha paints the Consent Order in DOJ Action as an admission, though a careful review of the same does not demonstrate any admission by the Township that it violated RLUIPA or Bais Brucha's rights. Even a cursory review of the referenced document indicates that the Township was invested in amending its ordinances prior to the DOJ filing its complaint and prior to Bais Brucha filing their application or the complaint in this matter. Either way, the Consent Order provided a timeline for the Township to amend its ordinances – which it did on July 13, 2021. Therefore, Bais Brucha claims were actively being resolved as they filed their lawsuit.

Under RLUIPA's governmental-discretion (“safe harbor”) provision, a local government can avoid liability under RLUIPA by amending its land use regulations to remove the allegedly burdensome or discriminatory provisions, even after such provisions have caused harm. Civil Liberties for Urban Believers v. City of Chi. See also Petra Presbyterian Church v. Village of Northbrook concluding that village "avoided liability" under governmental discretion provision by revising ordinance. In that case, the plaintiff churches claimed that they had incurred various expenses due to the defendant city's zoning ordinance, which placed certain restrictions on churches. Riverside Church v. City of St. Michael. Similarly, Bais Brucha claims they have incurred various expenses due to the Township’s prior zoning Ordinance which existed at the time they filed a deficient zoning permit application and appealed the same. The Ordinance at issue was revised as a result of the USDOJ Investigation and Consent Order on two occasions.

In the instant matter, Plaintiffs motion cannot be granted as the Township amendments to the subject ordinances fall within RLUIPA’s Safe Harbor provision. Indeed, the amendments to the Ordinance remove the alleged barrier to entry and allowed Houses of Worship in zones where the same were previously not allowed as a permitted or conditional use. The revised ordinances do not broadly limit where religious entities can locate, rather they open up a significant portion of the Township to allow religious entities the ability to locate there.

Assuming arguendo that Bais Brucha has incurred damages of any kind, their ability to recover on the same should be limited to the period of the denial of their application following their appeal to the Zoning Board of Adjustment to when the Ordinances were amended in July of 2021. From that point forward plaintiffs have made zero effort to mitigate their damages.

Similarly, the amendments to the Township’s Ordinance are the result of a negotiated effort with the USDOJ to address concerns relative to RLUIPA based issues. The Consent Order entered into was the result of this cooperative effort. Unsurprisingly Bais Brucha points to the very effort which had begun in 2018 and which was publicly available on the Township website to inform the public of the progress being made relative to RLUIPA.

Subsequently, the amendments to the Township’s Ordinance were reviewed and approved by the USDOJ – twice. The latter revision corrects a mutual oversight by the Township and the USDOJ relative to the parking standard challenged also being challenged by Bais Brucha. Indeed, while not the subject of the motion, it cannot be ignored that the Township has made great strides to make its ordinances far more inclusive.

In addition, Bais Brucha makes broad assertions that they would have been able to build their shul, but for the regulations in the Township at the time of their application. This is a disingenuous assertion because even if they were a permitted or conditional use in the zone, they are still required to make efforts to comply with local ordinances.

To the extent that they needed relief from the Ordinances they could have (but did not and to date have not) filed for variances seeking relief from various portions of the zoning ordinances. The underlying application itself lists a 4,680 square foot shul, but also lists 4,680 square foot footprint and a gross floor area of 13,3253 square feet next to an existing house on the property. The latter is indicated on a site layout plan that is devoid of the required information for the Township Engineer or Zoning Official to make an assessment of the overall plan with all of the necessary information.

Despite claims that Plaintiffs sought to have their shul deemed a permitted conditional use, this required variance relief to do so. Even if the property were able to be considered as such, the use relief and relief from any acreage requirements, or other bulk standards are 

accomplished through a variance application. To date no effort has been made to seek variances of any kind under any version of the Township’s Ordinances. The only application submitted to the Zoning Board was an appeal of the Zoning Officer's determination. In fact, the Zoning Board's Resolution of Denial states that the appeal was denied in part because Bais Brucha had an additional proper administrative remedy which was to seek a Use Variance.

Bais Brucha's motion seeks to capitalize on the efforts of the USDOJ and the Township to resolve the underlying issues and make locating such houses of worship in the Township easier and in more locations on reduced acreage to claim that the Township violated their rights.

The motion is returnable this Tuesday, September 5, before U.S. District Judge for the District of New Jersey Zahid N. Quraishi. The decision will likely be released a number of weeks later.

In 2016, Chabad of Toms River, led by Rabbi Moshe Gouarie filed a successful RLUIPA suit against the township charging that “anti-Semitic hostility” directed at the ultra-Orthodox population was behind requiring Chabad to seek a variance. In 2018, a federal judge ruled that the local zoning board had violated the law in forcing Rabbi Gouarie to obtain a use variance to continue operating Chabad, and required Toms River to reimburse legal fees.

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