On December 31, 2016, U.S. District Judge Michael Shipp of the District of New Jersey authored a 57-page opinion granting partial summary judgment to plaintiffs, The Islamic Society of Basking Ridge (“Islamic Society”) holding that defendants, the Township of Bernards (“Bernards”), violated Islamic Society’s rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The Bernards Planning Board denied Islamic Society’s site plan application seeking to construct a mosque in a residential zone on the basis that (1) a mosque is not considered a church under Bernards’ zoning code and (2) Bernards’ parking ordinance was not adhered to.
In November 2011, Islamic Society purchased property in a residential section of Bernards with the intention of constructing a 4,252 square foot mosque on the property. The site plan called for 50 parking spaces based on estimated occupancy of 150 people. The parking spaces provided were in compliance with Bernards’ parking ordinance applicable to churches at a ratio of 3:1 .
Over the course of three and a half years, Islamic Society’s site plan application underwent 39 meetings and was subjected to intense neighborhood opposition and scrutiny. According to the decision, competing expert testimony was provided by parking experts and asserted that although Bernards does not, and has never, relied on the Institute of Transportation Engineers (“ITE”) Parking Generation data, Bernards required Islamic Society to apply the ITE data applicable to mosques, which estimated required parking spaces between 36 and 110. Bernards compromised at 107 parking spaces, when in fact, only 50 were required under Bernards accepted church parking ratio of 3:1.
The rationale for the increased parking requirement rested on Bernards’ determination that a mosque is not a church, despite the fact that Bernards’ zoning code does not state that a mosque is not considered a church. Bernards did not stop there. Bernards went on to say that only Christian places of worship are considered churches, and as a result thereof, not only was the 3:1 parking ratio not applicable to Islamic Society’s site plan application, but also, Bernards maintained discretion in reviewing Islamic Society’s application and essentially had unfettered discretion in determining parking requirements.
At the conclusion of all hearings and testimony, Bernards’ planning board denied the site plan application. Islamic Society commenced an action in federal court alleging violations under RLUIPA.
In granting partial summary judgment, the Court rejected Bernards’ position that mosques are not considered churches. In fact, the Court specifically stated that a mosque or any place of religious worship, whether a church or not, is protected under RLUIPA. Bernards’ unsupported determination that mosques are not considered churches violated Islamic Society’s rights under the Nondiscrimination Provision of RLUIPA.
Additionally, with respect to the increased parking, and Bernards’ position that it maintained unfettered discretion to determine parking requirements, the Court relied upon its determination that a mosque is entitled to the same protections as a church; as such, the Bernard parking ordinance ratio of 3:1 should have been applied equally to Islamic Society as it had historically been applied to Christian and Baptist churches and synagogues that were previously approved in Bernards. Further, the Christian, Baptist and Jewish places of worship were typically granted in less than six months, and in most instances, with less then four public hearings.
The decision in this 57-page case cannot be justly analyzed in a short blog post. Given the state of our country at this time, when it comes to freedom of religion and the consequences that we suffer as a result of our differing beliefs, it would be a worthwhile allocation of any land use attorney’s time to read this decision. If nothing else, it reminds us all that one of the basic tenets of our American freedoms is the freedom to be different and be accepted.