Following the previous setback he received at the Jackson Township Zoning Board, Rabbi Avrohom Matzliach has now submitted an application to the Board for a Use Variance to operate a shul at his residence at 28 Ashford Road.
The Matzliach's previously submitted a request to Zoning Officer Jeffrey Purpuro to use their existing detached garage building (on which, a 340.05 sq. feet addition of a restroom and a storage closet is proposed) as a recreation area for their family and as an area for home worship.
Mr. Purpuro denied this request, saying that home worship is only permitted inside a home or inside an attached garage, but not in a detached garage.
Following Mr. Purpuro denial of this request, the Matzliach's, represented by Attorney Christopher K. Costa, Esq of Storzer & Associates, P.C., presented an appeal to the Township's Zoning Board seeking for them to overturn the zoning officer's decision on the basis that it was incorrect.
Mr. Costa told the Board that a significant body of case law upholds the right of religious leaders to carry out a broad range of religious activities, including worship services, in their home.
Mr. Purpuro did not deny this fact, however, he opined that home worship is only permitted inside a home or inside an attached garage, but not in a detached garage.
Mr. Costa argued that the detached garage is an accessory use to the home and therefore there is no difference in permitting worship in an attached garage or a detached garage, and therefore the Zoning Officer incorrectly denied his application and the Board should right the wrong and approve the application.
The garage addition, which is in their rear yard, does not have any existing non-conformities, nor does it seek any bulk variances.
Excluding the family members, the Matzliach's intend to host 20-25 people at their minyanim which would be held only Sunday through Friday, application documents show. Rabbi Matzliach admitted under direct testimony that there are often cars parked on the road due to his shul.
Board members argued back that they do not see any difference between a "home worship" and a "House of Worship" and therefore, at the very least, it's "a residential home with an intensified use," and therefore, Site Plan review, including for sufficient parking, should be required as a real shul building.
Stressing that this application was only for an appeal of the Zoning Officer's determination as to whether or not this is a permitted use, and that the principal use of the structure will remain for residential use, Mr. Costa pushed back, saying that they do not require any Site Plan review.
Board members did not agree, and opined that there is indeed a difference between prayer inside of a home and inside a detached garage as case law of Farhi vs. Commissioners of Deal only permitted home worship because "Rabbi Farhi has converted a portion of the main floor of his home for a specific use during these religious services," - whereas this is a case of a detached garage.
Board Member James Hurley added that their argument is that prayer should be permitted in a detached garage just as inside the home because the two are equal, however, Jackson Township's ordinances consider a detached garage an accessory use which is permitted for storage and parking - neither of which are proposed here, and therefore he disagrees that anything permitted inside of a home should also be permitted in a detached garage.
He added that all of their complaints are constitutional, which is for a court to determine, and not something that we can consider as we review applications under the purview of zoning ordinances.
The Board voted unanimously to uphold the Zoning Officer's determination that the use of a shul is not permitted and requires a Use Variance.
An appeal is different than a standard Zoning Board application which are for Use Variances. According to the New Jersey Municipal Land Use Law, a Use Variance is an acknowledgement that the use is not permitted under the zoning ordinances, and the applicant seeks an approval on the grounds that they meet the criteria "in particular cases for special reasons." In contrast, an appeal is wholly procedural "where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative officer based on or made in the enforcement of the zoning ordinance," and as such, does not relate specifically to the substantive remedies which a board may grant, rather, it is limited to the question of administrative officer error.
New Jersey case law has established that an applicant wishing to appeal from a decision of the zoning officer must generally avail himself of the right to appeal the officer's decision to the Zoning Board before resorting to filing a lawsuit in Superior Court seeking to compel municipal action.
Following the Board's affirmation of the Zoning Officer's determination that the use of a shul is not permitted and requires a Use Variance, Rabbi Avrohom has now formally submitted an application to the Board for a Use Variance to change the use of the detached garage to habitable space of the residence, and for a small addition to the garage of 320 square feet to include a bathroom and storage area.
The Board is scheduled to consider the application next Wednesday, September 20, 2023.
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