RLUIPA Safe harbor Does Not Extend to Claims for Monetary Damages

 In Bair Brucha Inc. v. Township of Toms River, New Jersey, (D NJ, Feb. 29, 2024), a New Jersey federal district court granted plaintiffs judgment on the pleadings on their RLUIPA and Free Exercise challenges to discriminatory land use regulations that prevented their construction of a synagogue.  Plaintiffs claimed that Toms River had engaged in an orchestrated effort to prevent the growth of the Orthodox Jewish population in the town. Subsequent to the filing of this lawsuit, the township amended its zoning regulations in a settlement of a RLUIPA suit brought by the Justice Department. Plaintiffs did not deny that their original regulations violated the Equal Terms and the Exclusion and Limits provisions of RLUIPA. However, they contended that since the zoning ordinances have subsequently been amended, the township is covered by the safe harbor provision in RLUIPA that shields a local government from the preemptive force of RLUIPA if it subsequently amends its land use regulations to remove the burdensome or discriminatory provisions. The court held that the safe harbor provision does not extend to claims for monetary damages incurred before the township took corrective action.

Also finding a violation of the Free Exercise clause, the court concluded that the land use regulations were neither neutral nor generally applicable and that antisemitic animus was a motivating factor behind the land use regulations.

Synagogue Can Move Ahead With Damage Claim for Zoning Denial

In Khal Anshei Tallymawr, Inc. v. Township of Toms River, New Jersey, (D NJ, Dec. 3, 2021), a New Jersey federal district court allowed an Orthodox Jewish congregation to move ahead with its free exercise, RLUIPA, equal protection and state law claims for damages growing out of the zoning denial of a permit to construct a synagogue in an area zoned rural residential. However, since subsequently the challenged regulations have been amended to permit houses of worship as conditional uses in residential zones, the court denied prospective relief while plaintiff determines whether the zoning board will now permit the construction. The zoning amendments were enacted pursuant to the settlement of a RLUIPA lawsuit brought by the Department of Justice. (See prior posting.)

Justice Department Announces Settlement of RLUIPA Suit Against New Jersey Town

The Department of Justice announced yesterday that it has filed a proposed consent decree reflecting an agreement with the Township of Toms River, New Jersey. If approved by the court the decree will settle a RLUIPA lawsuit that was filed against the Township:

The complaint alleges that since 2009, Toms River has enacted a series of revisions to its zoning code—including a ten-acre parcel minimum requirement—which greatly reduced both the number of zoning districts in which houses of worship can locate and the number of sites available for houses of worship. These restrictions have had a particular impact on the Township’s Orthodox Jewish population, who, because of their faith and religious traditions, tend to worship at small houses of worship which they walk to and from on the Sabbath and holidays.....

As part of the consent decree, the Township will revise its zoning code to: reduce the minimum acreage required for a house of worship ... to two acres; allow houses of worship as-of-right in certain zoning districts; allow smaller houses of worship to be located on minor collector roads; and treat houses of worship on comparable terms to nonreligious places of assembly....

Settlement Order Entered In Chabad's Dispute With New Jersey Town

After lengthy mediation, a settlement has been reached in a lawsuit filed in 2016 by Chabad Jewish Center of Toms River, New Jersey and Rabbi Moshe Gourarie challenging Toms River's refusal to allow a Chabad Center to operate out of a large home and garage on 8 acres purchased by Gourarie in 2011. (See prior posting.)  An Order reflecting the settlement was entered in February (Chabad Jewish Center of Toms River, Inc. v. Township of Toms River, (D NJ, Feb. 5, 2018), but the settlement is just now being publicized.  As reported by Toms River Patch:

Rabbi Moshe Gourarie will be permitted to continue to hold religious gatherings at the Chabad's Church Road location, with certain stipulations.... Toms River Township must pay $122,500 to cover the Chabad's attorneys' fees, and an investigation by the federal Department of Justice into the township's zoning practices has been dropped.

Among the stipulations in the settlement are a limit of 35 individuals (in addition to family members) for most gatherings at the Center, with that number going up to 49 for six specific holidays each year.

Chabad Center Sues New Jersey Town Claiming Discrimination

A lawsuit was filed in a New Jersey federal district court yesterday by the Chabad Jewish Center of Toms River, New Jersey and Rabbi Moshe Gourarie. The suit claims that the town violated plaintiffs' free exercise and equal protection rights by refusing permission for the Chabad Center, which usually attracts fewer than 15 people, to operate out of a large home and garage on 8 acres on Church Road purchased by Gourarie in 2011. As reported by NJ Advance Media:

The town changed the zoning of that section of Church Road in 2009 to ban churches from operating there and since then, the township has engaged in a systematic practice of discrimination against ultra-Orthodox Jews and are seeking to have them contained in neighboring Lakewood where there is a large population of Orthodox Jews, the complaint contends....

In claiming discrimination, the suit notes that the zone permits activities at the adjacent American Legion, a church, Ocean County College, the county fire academy and other sites that are not residential uses.

(See prior related posting.) [Thanks to Steven H. Sholk for the lead.]

Housing Crunch For Orthodox Jews In New Jersey Places Focus On Real Estate Practices [UPDATED]

AP reported yesterday on the influx of ultra-Orthodox Jews into the town of Lakewood, New Jersey and surrounding communities.  AP reports that the influx is of Hasidic Jews, but as a commenter on Twitter to an earlier version of this post points out, the Jews in Lakewood, and the yeshiva that attracts them are largely in the Orthodox Lithuanian Jewish ("Yeshivish") tradition, not Hasidic. Nevertheless here is AP's report:

A housing crunch in Lakewood, home to one of the nation’s largest populations of Hasidic Jews, has triggered what residents of neighboring communities say are overly aggressive, all-hours solicitations from agents looking to find homes for the rapidly growing Jewish community.

The complaints have prompted towns, including Toms River, to update their “no-knock” rules and related laws, adding real estate inquiries to measures that already limit when soliciting can occur and allow residents to bar solicitations.

But Jewish leaders and others say the no-knock laws unfairly target Orthodox Jews and those seeking to help them find houses. Many current residents came to the community to study at one of the largest yeshivas in the world and eventually settled down....

On the other hand, some of the solicitation activity is reminiscent of the kind of activity that led to the federal Fair Housing Act's ban on "blockbusting."  42 USC Sec. 3604(e) makes it illegal:

For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin.

AP describes one homeowner's experience:

James Jackson didn’t want to sell his home but thanked the black-suited man for his interest anyway.

That’s when the man put his hand on Jackson’s shoulder and told him he might want to reconsider. Many of his neighbors in the New Jersey shore town of Toms River, the man said, already planned to sell to Jewish buyers like those he represented.

“He asked me why I would want to live in a Hasidic neighborhood if I wasn’t Hasidic,” Jackson recalled. “He asked if I would really be happy, if it would be in my family’s best interests.”

Camp Counselor Seeks To Withdraw Guilty Plea In Sex Assault Case, Claiming Pressure From Orthodox Jewish Community Led To Plea

In Toms River, New Jersey yesterday, a state Superior Court judge heard testimony in connection with the motion by former Orthodox Jewish camp counselor Yosef Kolko to withdraw his guilty plea to charges of sexual assault against a boy when the boy was 11 and 12 years old.  According to the Asbury Park Press, Kolko claims he was the target of a campaign in the Lakewood (NJ) Orthodox Jewish community to pressure him to plead guilty in order to avoid the negative publicity for the community that would come with a trial. Witnesses for Kolko say the campaign involved a combination of vivid descriptions of what prison would be like, and an offer of $100,000 and a job when he got out of jail if he plead guilty. Kolko steadfastly maintained his innocence until he decided to plead guilty while the trial was under way.

Disclosure To Jewish Religious Court Waives Privilege As To Information From Social Worker

A Toms River, New Jersey state Superior Court judge last week ruled that former yeshiva teacher Yosef Kolko, who has been criminally charged with sexual assault on an 11-year old boy, has waived the confidentiality of statements he made to a social worker. The Asbury Park Press reports the details.  Originally the victim's father reported the assault to a Bet Din (Jewish religious court) which employed a Brooklyn social worker to interview Kolko to determine whether the charges were credible.  Kolko signed a waiver allowing information from the interview to be reported to the Bet Din.  Now state court judge Francis R. Hodgson has ruled that this amounted to a waiver of the privilege that would otherwise attach to the information. The judge said in part: "I think that it is not a small factor to be considered that [the Bet Din] is a parallel justice system ... within a closed community."

NJ Judge Orders Halt To Jewish Services In Renovated Condo

In Toms River, New Jersey, according to APP, a state Superior Court judge on Friday ordered at least a temporary halt to to Orthodox Jewish prayer gatherings at a home that is part of a local condominium development. A Country Place filed suit in February against condo owner Anna Kahan, alleging that she violated the condo association rules by renovating without permission and using her unit for non-residential purposes. Kahan's attorney charges selective enforcement of the rules. Primarily elderly handicapped residents who cannot walk to another synagogue have been using the unit. The number of Orthodox Jews purchasing condo units in the development has been increasing. The judge ordered the halt so an engineer could inspect the renovations that had been done to see if a wall that had been removed supported other parts of the structure. Neighbors who object to the condo use say it violates the character of the neighborhood.