Note:  Law clerk Joanna Lima assisted in drafting this blog post.

Courts have recently expanded what constitutes religious conduct. In particular, in Matter of Sullivan v. Board of Zoning Appeals of City of Albany, 144 A.D. 3d 1480 (3d Dep’t 2016), an appellate court ruled that the use of a portion of a church parsonage for a “home base” for up to 14 homeless individuals was a permissible use of a “house of worship.”

Respondent Bethany Reformed Church owned certain real property, including a sanctuary, an educational and social building, a parsonage, and a parking lot, all of which were located adjacent to petitioner’s property. The properties were located in a residential district, which permitted, among other uses “houses of worship.” The Code of the City of Albany defined “houses of worship” as “a structure or part of a structure used for worship or religious ceremonies.”

The Church advised the City of its desire to partner with a not-for-profit corporation to establish a “home base” for up to 14 homeless individuals who were not attending school, enrolled in training programs or working at their current jobs. The City’s Building Department told the Church that it needed a use variance or special use permit as the proposed use did not appear to be for a religious purpose.   The Church then sought an interpretation from the Board of Zoning Appeals as to whether this intended use was permitted within the zoning district. The Board found that the Church’s intended use was consistent with “the mission and actions of a house of worship…” and did not require a variance or special use permit.  Petitioner brought a proceeding to annul the Board’s determination.

The Supreme Court, County of Albany, did not agree with the Board’s interpretation and annulled the Board’s decision, finding that the proposed use for the parsonage was not reasonably consistent with the term, “house of worship.” The Church appealed.  The Appellate Division reversed the decision of the Supreme Court, noting that, generally, “a zoning board’s interpretation of a zoning law [] is afforded great deference and will only be disturbed if it is irrational or unreasonable.”  An exception to this standard is where the issue is a pure legal interpretation of the zoning law.  Moreover, where a term is not defined by a zoning law, courts can apply the term’s ordinary meaning and that “any ambiguity in the language employed must be resolved in favor of the property owner.”

The Third Department first explained the rules applicable to judicial deference of municipal decisions, whether the issue presented was fact-based warranting judicial deference to the Board’s interpretation or a pure legal question excepting such deference.  Interestingly, the Appellate Division did not apply these rules in its reversal of the lower court.  The Appellate Division held that, regardless of the analytical approach, the Board’s interpretation should be upheld.  The Court noted that the term “worship” was not defined in the applicable zoning law, so the Appellate Division chose to use its ordinary meaning. The Court, relying on the dictionary meaning of the term, determined that the ordinary meaning of “worship” is defined as “any form of religious devotion, ritual, or service showing reverence – especially with respect to a divine being or supernatural power” and also includes “an act of expressing such reverence.” Noting that previous courts have been flexible in their interpretation of religious uses under zoning ordinances and did not limit religious uses solely to mean a house of prayer, the Court found that services to homeless individuals constitute religious conduct because acts of charity play a significant role in religious worship.

mosqueOn 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.

FACTS

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.

DECISION

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.

CONCLUSION

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.