Challenge To Settlement In Mosque Zoning Case Is Dismissed

In Youkhanna v. City of Sterling Heights, (ED MI, Aug. 1, 2018), a Michigan federal district court dismissed a lawsuit challenging a consent decree approved by the Sterling Heights City Council growing out of a dispute over zoning approval for a mosque. (See prior posting.) The consent decree settled two related lawsuits-- one by the Islamic Center and one by the Department of Justice-- that alleged violations of RLUIPA and of the Islamic Center's free exercise rights.  An overcrowded and contentious City Council meeting preceded approval of the consent decree.  Rejecting the challenge to approval of the consent decree the court said in part:

The crux of Plaintiffs’ Complaint is that the approval of the Consent Judgment should be invalidated because the Council purportedly failed to abide by the City’s Zoning Code by neglecting to consider the discretionary standards set forth in § 25.02. Plaintiffs’ further assert that the Consent Judgment should be invalidated because the City did not comply with the notice requirements under the MZEA [Michigan Zoning Enabling Act]. Both of Plaintiffs’ arguments are without merit.

The court also rejected claims that the Michigan Open Meetings Act had been violated and that defendants' 1st, 4th and 14th Amendment rights had been infringed. The court said in part:

Plaintiffs claim their speech was impermissibly chilled when they and other audience members were limited to a two-minute speaking time, prevented from speaking critically of the Islamic faith, and removed from the meeting for being disruptive. However, ... [w]hen the government designates a limited public forum for speech, as is the case of a city council meeting, it may apply restrictions to the time, place, and manner of speech so long as those restrictions “are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”

The court had previously denied a preliminary injunction in the challenge.  Detroit News reports that defendants will appeal yesterday's ruling.

Meanwhile, according to AINA, another mosque controversy is on the horizon in Sterling Heights as a group of Pakistanis are moving ahead with plans to convert a former Lutheran church there into a mosque.

Muslim Group's Challenge To Landmark Designation Dismissed On Ripeness Grounds

In Islamic Community Center for Mid Westchester v. City of Yonkers Landmark Preservation Board, (2d Cir., July 6, 2018), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal for lack of ripeness of a suit brought by a Muslim community center.  The city had designated as a landmark the property which the organization (ICCMW) had purchased for use as a mosque.  The court ruled that ICCMW had failed to apply for the “certificate of appropriateness” that would, if granted, enable them to move ahead with construction despite the landmark designation.

Court Refuses To Dismiss Challenge To Town's Settlement Agreement On Mosque Construction

In Quick v. Township of Bernards, (D NJ, April 30, 2018), a New Jersey federal district court denied defendant's motion to dismiss a lawsuit challenging a settlement agreement entered by the Township of Bernards to settle a dispute over construction of a mosque in the Township.  Under the settlement agreement, a new Planning Board hearing on permitting construction of the mosque was to be held.  One of the stipulations, however, was that at the hearing "No commentary regarding Islam or Muslims will be permitted." (See prior posting).  Plaintiffs contend that this is an unconstitutional suppression of speech based on its content and viewpoint, is a prior restraint on speech, denies plaintiffs procedural due process, violates the Establishment Clause by favoring Islam over other religions, and violates the 1st Amendment's petition clause. New Jersey Law Journal reports on the decision.

Settlement Reached In NJ Mosque Zoning Lawsuit

Jersey Journal reported last week that a settlement has been reached in Bayonne Muslims v. City of  Bayonne, a RLUIPA lawsuit filed in New Jersey federal district court last May. (See prior posting.) Under the settlement, construction of a community center and mosque will be approved by Bayonne's Zoning Board after a revised application is filed and a public meeting is held.  The city will also pay $280,000 for plaintiff's attorneys' fees and an additional $120,000 in damages.

UPDATE: AP reported (March 13) that the Bayonne zoning board gave final approval to the project.

Quebec Court: Muslim Community Center Is Not "House of Worship"

The Globe and Mail reported yesterday that a Quebec Superior Court judge has ruled that a Muslim community center in a Montreal suburb is not a "house of worship". The city of Mascouche attempted to shut down the community center in a strip shopping mall on the ground that under zoning rules "houses of worship" are not permitted in the area. A room in the community center was used by men for prayer. The court said however that "prayers can be uttered in all places and not exclusively in a place of worship."

European Court Vindicates Critic of Anti-Muslim Political Remarks

In Case of GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland,  (ECHR, Jan. 9, 2018), the European Court of Human Rights in a Chamber Judgment held that the free speech rights of a civil rights organization were infringed when Swiss courts sanctioned it for a web posting calling remarks of a youth leader of a right wing party "verbal racism." The remarks were made in the context of a referendum on banning the building of minarets. A Swiss appellate court found that the web posting infringed the party leader's personality rights.  It required the organization to remove its web posting and replace it by the court's opinion. It also was required to pay legal and court costs. The ECHR held in part:

When assessing the impugned statements in the present case, it is first of all important to bear in mind the general background of the ongoing political debate in which both statements were made.

... Both B.K.’s speech and the applicant organisation’s article concerned a topic of intense public debate in Switzerland at the material time, which was the popular initiative against the construction of minarets, which was widely reported on in national and international media. The initiative, calling for a ban on the construction of minarets, was ultimately accepted by a referendum on 29 November 2009 and such a ban was included in the Swiss Constitution....

The Court reiterates that a distinction has to be made between private individuals and persons acting in a public context, as political or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures.... 

... B.K. had willingly exposed himself to public scrutiny by stating his political views and therefore had to show a higher degree of tolerance towards potential criticism of his statements by persons or organisations which did not share his views.

A Chamber Judgment may be appealed to the Grand Chamber.  the Court issued a press release summarizing the decision.  Law & Religion UK has more on the case.

Suit Over Mosque Settlement Remanded To State Court

Litigation over site plan approval for construction of a mosque in Bernards Township, New Jersey continues. In May, the Township reached settlements with the Islamic Society of Basking Ridge and with the U.S. Justice Department under which the Township will permit the mosque to be built. (See prior posting.) However, township residents continue to challenge the settlement. (See prior related posting.)  One of the suits contends that proper notice was not given of the meetings that approved the settlements.  That suit was originally filed in state court, but removed to federal court by defendants.  Now in Smith v. Township of Bernards, (D NJ, Nov. 29, 2017), the New Jersey federal court to which the case was removed has remanded the case to state court.  It found that the suit does not raise any federal law issue, even though one of the settlements was incorporated into a federal court order. Thomas More Law Center issued a press release announcing the court's decision.

Mosque's Property Tax Challenge Barred By Tax Injunction Act

In Islamic Center of Nashville v. Sate of Tennessee, (6th Cir., Sept. 20, 2017), the U.S. 6th Circuit court of Appeals held that the federal Tax Injunction Act (TIA) bars suit in federal court challenging Tennessee's application of its property tax exemption rules to property of an Islamic Center.  To finance construction of a new school, the Islamic Center entered a 5-year ijara agreement-- an Islamic financing method that relies on a temporary sale and lease-back arrangement with a bank to avoid borrowing at interest.  The county removed the property's tax exemption for the period that title was technically held in the bank's name.  The court held that because state law provides a plain, speedy, and efficient
alternative to federal court review of the county's assessment of taxes on the Islamic Center, that is the route that plaintiff must take. There is no special exception to the TIA for First Amendment claims.

RLUIPA Suits Over Mosque Construction Are Settled

The Justice Department announced yesterday that a settlement agreement (full text) has been reached in United States v. Bensalem Township, Pennsylvania, as well as in a private suit involving the same underlying facts. In the  suit, the Justice Department alleged that the township violated RLUIPA in denying a zoning variance to permit Bensalem Masjid to construct a mosque on property near a commercial area. (See prior posting.)  The agreements call for approval of use of the property and for the Township to amend its zoning ordinances so they are compliant with RLUIPA. Bucks County Courier Times reports on the settlement.

New Suit Challenges Settlement Agreement In Mosque Construction Dispute

As previously reported, in May a settlement was reached in a suit by the Islamic Society of Basking Ridge which charged RLUIPA violations, as well as violations of the 1st and 14th Amendments, in Bernards Township, New Jersey's refusal to grant site plan approval for construction of a mosque.  As part of the settlement agreement (full text), the parties agreed that a Planning Board hearing on the agreement and related mosque construction will be held, and that, among other things, at the hearing "No commentary regarding Islam or Muslims will be permitted." Now a federal lawsuit has been filed challenging this provision of the settlement agreement.  The complaint (full text) in Quick v. Township of Bernards, (D NJ, fled 7/31/2017) alleges that the commentary ban  suppresses speech based on its content; amounts to a prior restraint; violates the Establishment Clause by favoring Islam; and deprives township residents of procedural due process.  Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Preliminary Injunction Refused: Settlement In Mosque Zoning Dispute Stands

In Youkhanna v. City of Sterling Heights, (ED MI, June 28, 2017), a Michigan federal district court refused to issue a preliminary injunction to prevent enforcement of a consent judgment entered into by the city of Sterling Heights.  The consent judgment allows the American Islamic Community Center to construct a mosque on land in the city.  Plaintiffs live near the mosque site.  Some are Chaldean Christians form Iraq and one is an Assyrian Christian from Syria.  They allege that their religious groups in Iraq and Syria have been subjected to violence by ISIS.  The court held that plaintiffs had not shown a likelihood of success on their constitutional and statutory claims regarding the validity of the consent judgment and the conduct of the meeting at which it was approved. (See prior related posting.)

In Mosque's Factional Dispute, Ohio Court Orders Dissolution and Reincorporation

In State of Ohio ex. rel. DeWine v. Omar Ibn El Khattab Mosque, Inc., (OH App., June 22, 2017), an Ohio appeals court exercising its original jurisdiction in quo warranto actions granted the state attorney general a writ allowing him to pursue the dissolution of the non-profit corporation which operates a Columbus, Ohio mosque. The court further granted the attorney general authority to oversee the creation of a successor entity to take over the mosque.  Two factions had both claimed to represent the mosque, and were involved in five years of litigation over which of the successive boards is the legitimate governing body of the mosque. The court agreed with a magistrate who initially heard the case, saying:

Omar Mosque, Inc. has violated many statutory requirements of [the Ohio Non-Profit Corporation Law] ... in failing to maintain a record of its members from the period of 2007 through 2011... [and] the failure to conduct an annual or special meeting of voting members for the election of directors in either 2009 or 2010.

These basic statutory requirements that Omar Mosque, Inc. violated would protect a corporation from the confusion and internal paralysis that this case has shown resulted when an internal division arose. Without a defined voting membership, regular meetings, and up-to-date membership roster, the authority of the board, and thus the legitimacy of the corporation itself, is no longer supported through recordable action.

The court added:

In light of the stable management provided by the Reash/Brey respondents, and the Khan/Ball board's willingness to efface itself from the day-to-day operation of the mosque, the oversight of the trustees or a receiver in this case may be limited to resolution of the current corporate dysfunction and need not intrude into the religious affairs of the mosque.

City Settles With Muslim Group Over Zoning Denial

Journal Online reported this week that just days after settling with the Department of Justice (see prior posting), the city of  Des Plaines, Illinois entered a settlement agreement with the Society of American Bosnians and Herzegovinians.  The organization sued after it was denied a zoning change that would have allowed it to operate a mosque on property it wished to purchase.  Under the settlement, the city will pay the organization damages of $580,379.

Illinois City Settles DOJ's Suit Over Mosque Rezoning

The Justice Department yesterday announced a Settlement Agreement (full text) with the City of Des Plaines, Illinois, settling a RLUIPA lawsuit brought against the city.  The suit alleged that the city improperly denied a zoning request that would have allowed a Bosnian Muslim religious organization to use property it wished to purchase for religious and educational purposes.  A federal district court ruled against the city in in February in refusing to grant it summary judgment. (See prior posting.) Under the settlement agreement, the city will comply with RLUIPA in the future and will provide training on RLUIPA to its officials and employees. Meanwhile, the Muslim group has acquired an alternative location for its mosque.

Settlements Reached In New Jersey Mosque Zoning Cases

The Justice Department announced Tuesday that a settlement has been reached with Bernards Township, New Jersey in the the Justice Department's Religious Land Use and Institutionalized Persons Act lawsuit over the town's refusal to grant zoning approval for construction of a mosque by the Islamic Society of Basking Ridge. Under the agreement, the town will permit the mosque to be built.  It will also amend its zoning ordinances.  A $3.25 million settlement was also reached in a suit by the Islamic Society of Basking Ridge similarly charging RLUIPA violations, as well as violations of the 1st and 14th Amendments, in the Bernards Township's refusal to grant site plan approval. The Atlantic reports on the settlements.

Suit Challenges Zoning Denial For Mosque

A suit was filed in a New Jersey federal district court yesterday claiming that the Bayonne (NJ) zoning board violated RLUIPA as well as the U.S. and New Jersey constitutions in denying a Muslim religious congregation zoning approval for construction of a mosque. The complaint (full text) in Bayonne Muslims v. City of  Bayonne, (D NJ, filed 5/25/2017) alleges in part:

Plaintiffs applied to the Zoning Board for routine variances, which were needed to convert a decrepit, abandoned, and trash-strewn warehouse on a blighted street into a vibrant community mosque. Plaintiffs then endured years of bigotry and hate crime from those opposed to the mosque. Ultimately, the Zoning Board capitulated to the community’s anti-Muslim animus and denied the application. It did so even though it had previously granted indistinguishable variances to Christian churches. The Zoning Board violated both federal and state law to achieve its desired outcome.

Jersey Journal reports on the lawsuit.

City's Settlement of Mosque Litigation Challenged By New Lawsuit

As previously reported, last month the city of Sterling Heights, Michigan reached settlements in two related lawsuits challenging the city's denial of a land use application filed by an Islamic group that wants to construct a mosque on five adjoining lots in the city. Now several individuals have filed a federal lawsuit challenging the settlement.  The complaint (full text) in Youkhana v. City of Sterling Heights, (ED MI, filed 3/13/2017), seeks a declaration that the settlement is invalid and unenforceable. It contends that the city violated plaintiffs' 1st, 4th and 14th Amendment rights, including the Establishment Clause, in the procedures used at the City Council meeting considering the settlement.  It also claims a violation of the Michigan Open Meetings Act. the complaint describes the procedures used at the meeting as follows:

The City ... (1) adopted an ad hoc rule that limited speakers wanting to address the Consent Judgment agenda item to just 2 minutes, thereby severely limiting Plaintiffs’ right to express their views at this public hearing, even though the Mayor allowed other speakers addressing less controversial matters that evening to speak at great length; (2) prohibited certain views based on their content and viewpoint (i.e., no one was permitted to mention religion or even hint at it when discussing the Consent Judgment matter, and certainly no one was permitted to make any statement that might be deemed critical of Islam); (3) directed the City police to seize individuals and escort them out of the meeting if the Mayor opposed what they were saying about the Consent Judgment matter; and (4) ordered the citizens out of the public meeting when it came time to actually vote on the Consent Judgment.

Detroit News reports on the lawsuit.

Mosque Sues Over Denial of Sewage Permit

As previously reported, last December the U.S. Department of Justice filed suit against Culpeper County, Virginia alleging that it violated the Religious Land Use and Institutionalized Persons Act by denying a sewage permit application to the Islamic Center of Culpeper. Now the Islamic Center has filed its own lawsuit making similar allegations.  The complaint (full text) in Islamic Center of Culpeper v. County of Culpeper, Virginia, (WD VA, filed 3/9/2017) alleges:

The County of Culpeper ... has denied the Islamic Center of Culpeper... essential religious freedoms and equal protection under the law by refusing a “pump and haul” permit to enable ICC to construct a mosque on its own property. This Nation is founded on the principle that there will be religious freedom for all, but the County’s actions in this case violate that tenet by treating ICC differently than other similarly situated religious congregations.

WVIR reports on the lawsuit.

Settlements In Mosque's and DOJ's Suits Against Michigan City

Detroit Free Press reported yesterday that settlements have been reached in two related lawsuits against the city of Sterling Heights, Michigan over the city's denial of Special Approval Land Use application that would have allowed the American Islamic Community Center to construct a mosque on five adjoining lots in the city. One suit was brought by the Islamic Center, while the other was filed by the Department of Justice. (See prior posting.)  The settlement requires the city to allow the mosque to be built, but calls for the height of the mosque's dome and spires to be reduced by approximately two feet. No amplified outdoor sound-- including the Muslim call for prayer-- will be permitted.  Parking will be allowed only in the mosque's parking lot.  The financial arrangements in the Islamic Center's suit are unclear.  The settlement calls for the city to pay a $350,000 deductible to its insurance carrier. A Department of Justice press release yesterday says that the settlement also calls for the city to publicize its nondiscrimination policies, undergo RLUIPA training, and report periodically to the Department of Justice. The settlements must still be approved by the court.

New Jersey Mosque Wins Zoning Challenge

In Islamic Society of Basking Ridge v. Township of Bernards, (D NJ, Dec. 31, 2016), a New Jersey federal district court granted partial summary judgment to plaintiffs claiming religious discrimination by a township against an Islamic organization.  The court summarized its 57-page decision as follows:

This case requires the Court to examine a township planning board’s denial of a Muslim congregation’s site plan application to build a mosque.... Plaintiffs challenge the Planning Board’s decision on two bases: (1) Defendants’ disparate application of an off-street parking requirement between Christian churches and Muslim mosques, pursuant to the Religious Land Use and Institutionalized Persons Act...; and (2) the purported unconstitutional vagueness of a parking ordinance... under the Federal and New Jersey Constitutions. After careful consideration, the Court determines that Plaintiffs are entitled to judgment on the pleadings with regard to both issues.

NJ Advance Media reports on the decision.