Posted by: Patricia Salkin | February 23, 2017

Fed. Dist. Court in NJ Denies Township’s Motion to Dismiss Discrimination and RLUIPA Claims Brought by Orthodox Congregationn

Plaintiffs Congregation Kollel, Inc. and Zebra Holdings II, LLC, sought a land use permit from the Township of Howell and Howell Township Zoning Board of Adjustment to build and operate a Jewish educational facility. Defendants denied Plaintiffs’ application on the grounds that the type of facility which Plaintiffs sought to erect was not permitted under the Township’s Zoning Ordinance. Instead, Defendants instructed Plaintiffs to seek a variance under the applicable land use provisions of the Ordinance. Plaintiffs applied for the variance, and also brought the instant suit challenging Defendants’ denial as burdensome, discriminatory and unreasonable in violation of their constitutional rights. Plaintiffs’ claims were premised on their accusation that Defendants’ land use decision was based on a religious animus towards the Orthodox Jewish faith.

Plaintiffs first accused Defendants of violating RLUIPA by illegally imposing land use regulations on their face and as-applied in a manner that violated Plaintiffs’ religious exercise without using the least restrictive means of achieving a compelling governmental interest. The court rejected the facial challenge, since nowhere in Plaintiffs’ Complaint did they claim that the enactment of the Zoning Ordinance, as a whole, could not be constitutionally applied to any property. Furthermore, Plaintiffs did not assert that Defendants’ interpretation of “Educational Facility” could not be constitutionally applied under any circumstances.

As to the as-applied claims, Defendants argued that Plaintiffs were required to apply for a variance before Plaintiffs’ claims were ripe; however the court found that the Board had already rendered its final decision. Here, in asking Plaintiffs to apply for a variance, the court determined that the Board would not be developing additional factual record on that already-decided issue. Alternatively, the variance process would only seek to determine whether Plaintiffs’ proposed use could be permitted by the Board to depart from the Ordinance’s requirements: thus, no further record was necessary. The court also found that based on Plaintiffs’ theory of liability under RLUIPA, Plaintiffs suffered an immediate injury. It found that this element was easily satisfied since Defendants, based on Plaintiffs’ allegations, were motivated by a religious animus to deprive Plaintiffs of their right to free exercise of religion by imposing land use regulations that violated multiple sections of RLUIPA.

Plaintiffs next alleged that Defendants intentionally discriminated against Plaintiffs by making housing unavailable within the Township in violation of the FHAA, 42 U.S.C. § 3604(a). Thus, once the Board allegedly made the discriminatory decision that Plaintiffs’ proposed use was not a permitted use under the Zoning Ordinance, Plaintiffs’ FHAA claim became ripe, and Plaintiffs were not required to seek a variance before bringing that claim. Likewise, the court held Plaintiffs’ § 1983 claims under the First Amendment Free Exercise and Equal Protection Clauses of the Constitution to be ripe for the same reason.

As a final matter, the court held Plaintiffs’ prerogative writ claim should be dismissed for failure to exhaust administrative remedies, because Plaintiffs brought an as-applied challenge and has not sought a variance. Additionally, Plaintiffs did not present any evidence that either irreparable harm would result, or that an overriding public interest called for a prompt judicial decision.

Congregation Kollel, Inc. et al v. Township of Howell, N.J. et al. Civ. No. 16-2457 (FLW)

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