41034.00103-HBM/LEGAL/LEGAL/105477085.v1
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN
Howard B. Mankoff, Attorney No. 021971981
425 Eagle Rock Avenue, Suite 302
Roseland, NJ 07068
(973-618-4100 7973-618-0685
ATTORNEYS FOR DEFENDANTS - Township Of Bernards, Bernards Township Planning Board, Bernards Township Committee, Barbara Kleinert, Jeffrey Plaza, Jim Baldassare, Jodi Alper, John Malay, Kathleen "Kippy" Piedici, Leon Harris, Paula Axt, Randy Santoro, Rich Moschello, Scott Ross, Carol Bianchi, Carolyn Gaziano, Thomas S. Russo, Jr. and John Carpenter
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TRENTON
** ELECTRONICALLY FILED **
THE ISLAMIC SOCIETY OF BASKING RIDGE and MOHAMMAD ALI CHAUDRY,Plaintiffs
v.
TOWNSHIP OF BERNARDS, BERNARDS TOWNSHIP PLANNING BOARD, BERNARDS TOWNSHIP COMMITTEE, BARBARA KLEINERT, in her official capacity, JEFFREY PAZA, in his official capacity, JIM BALDASSARE, in his official capacity, JODI ALPER, in her official capacity, JOHN MALAY, in his official capacity, KATHLEEN "KIPPY" PIEDICI, in her official capacity, LEON HARRIS, in his official capacity, PAULA AXT, in her official capacity, RANDY SANTORO, in his official capacity, RICH MOSCHELLO, in his official capacity, SCOTT ROSS, in his official capacity, CAROL BIANCHI, in her official capacity, CAROLYN GAZIANO, in her official capacity, THOMAS S. RUSSO, JR., in his official capacity, and JOHN CARPENTER, in his official capacity ,
Defendants / CASE NO.: 3:16-CV-01369-MAS-LHG
Civil Action
BRIEF IN OPPOSITION TO MOTION
FOR partial judgment on the pleadings
______
Howard B. Mankoff, Esq.
Of Counsel and on the Brief
Table of Contents
Page
TABLE OF CONTENTS ………………………………………………………………………………………………………………………i
TABLE OF AUTHORITIES ……………………………………………………………………………………ii, iii, iv
PRELIMINARY STATEMENT………………………………………………………………………………………………………………1
STATEMENT OF FACTS………………………………………………………………………………………………………………………4
LEGAL ARGUMENT………………………………………………………………………………………………………………………………16
POINT I
Standard for judgment on the pleadings…………………………………………………16
POINT II
Plaintiffs failed to establish that the board's
parking determination violated RLUIPA's
non-descrimination provision, 42 U.S.C. § 2000CC(B)(2)………16
POINT III
Township Ordinance § 21-22.1 is not unconstitutional……………31
CONCLUSION…………………………………………………………………………………………………………………………………………40
TABLE OF AUTHORITIES
FEDERAL CASES
Adhi Parasakthi Charitable v. Twp. of W. Pikeland,
721 F. Supp. 2d 361 (E.D. Pa. 2010)…………………………………………………30, 32, 35
Al Falah Ctr. v. Twp. of Bridgewater, 2013
U.S. Dist. LEXIS 190076(D. N.J. Sept. 30, 2013)………………………………………19
Albanian Associated Fund v. Twp. of Wayne, 2007 U.S.
Dist. LEXIS 73176 (D. N.J. Oct. 1, 2007)……………………………………18, 19, 20
Associated Land & Invest. Corp. v. City of Lyndhurst,
154 N.E. 2d 435 (Ohio 1958)……………………………………………………………………………………………39
Bykofsky v. Middletown, 401 F. Supp. 1242
(M.D. Pa. 1975)……………………………………………………………………………………………………………………………37
Chabad Lubavitch of Litchfield County, Inc.
v. Litchfield Historic Dist. Comm'n, 768
F. 3d 183 (2d Cir. 2014)…………………………………………………………………………………………21, 22
Christian Methodist Episcopal Church v. Montgomery,
2007 U.S. Dist. LEXIS 5133, (D.S.C. Jan. 18, 2007)………………………………17
Church of Scientology of Ga., Inc. v. City of Sandy
Springs, 843 F. Supp. 2d 1328 (N.D. Ga. 2012)……………………………………………21
Comite Patriotico Cultiral Puertorriqueno, Inc. v. Vas,
2008 U.S. Dist. LEXIS 49090 (D. N.J. June 26, 2008)……………………………36
Contractors Ass'n v. City of Philadelphia, 945 F. 2d
1260 (3d Cir. 1991)…………………………………………………………………………………………………………………32
Cox v. New Hampshire, 312 U.S. 569 (1941)………………………………………………………36
Cunney v. Bd. of Trs. of Grand View, 660 F. 3d
612 (2d Cir. 2011)…………………………………………………………………………………………………………33, 34
Cutter v. Wilkinson, 544 U.S. 709 (2005)…………………………………………………………17
Fowler v. Rhode Island, 345 U.S. 67 (U.S. 1953)………………………………………27
Grayned v. City of Rockford, 408 U.S. 104,
33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972)…………………………………………………31, 33
Habayeb v. Butler, 2016 U.S. Dist. LEXIS 41866
(D. N.J. Mar. 29, 2016)………………………………………………………………………………………………………16
Hoffman Estates v. Flipside, 455 U.S. 489 (1982)……………………………………37
Hasan v. City of New York, 804 F. 3d 277 (3d Cir. 2015)………27, 28
Hohe v. Casey, 868 F. 2d 69, 71 n. 2 (3d Cir. 1989(……………………………32
Lighthouse Inst. for Evangelism, Inc. v. City of
Long Branch, 510 F. 3d 253 (3d Cir. 2007)
("Lighthouse II")……………………………………………………………………………17, 18, 19, 20, 26
MAG Realty, LLC v. City of Gloucester City,
2010 U.S. Dist. LEXIS 82035
(D. N.J. Aug. 12, 2010)………………………………………………………………………………………………………38
Miles v. Lansdowne Borough, 2012 U.S. Dist.
LEXIS 169338(E.D. Pa. Nov. 29, 2012)……………………………………………………………………17
Navigators Specialty Ins. v. PharmaNet Dev. Grp.,
Inc., 2016 U.S. Dist. LEXIS 40999
(D. N.J. Mar. 29, 2016)………………………………………………………………………………………………………16
Sikirica v. Nationwide Ins. Co., 416 F.
(3d Cir. 2005)………………………………………………………………………………………………………………………………16
Village of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252 (U.S. 1977)……………………………………………………………………21
FEDERAL AUTHORITIES
42 U.S.C. §2000cc(b)(2)………………………………2, 16, 17, 18, 19, 22, 26, 30
Fed R. Civ. Pro. 12(c)…………………………………………………………………………………………………………16
Fed. R. Civ. Pro. 201………………………………………………………………………………………………………………8
OTHER AUTHORITIES
Ordinance § 21-22.1a.1.b…………………………………3, 6, 9, 24, 31, 33, 37, 40
Ordinance § 21-10.4.a.1.(c)………………………………………………………………………………………5, 7
STATE CASES
Damurjian v. Board of Adjustment of the Twp. of Colts,
Neck, 299 N.J. Super 84 (App. Div. 1997)………………………………………………38, 39
DaPurificacao v. Zoning Bd. of Adjustment of Twp.
of Union, 377 N.J. Super. 436 (App. Div. 2005)………………………………32, 34
J.D. Constr. Corp. v. Board of Adjustment, 119 N.J.
Super 140 (Law. Div. 1972)………………………………………………………………………………………………39
Jacober v. St. Peter's Medical Center,
128 N.J. 475 (1991)……………………………………………………………………………………………………………………9
Kode Harbor Dev. Assoc. v. Atlantic County, 230 N.J.
Super. 430 (App. Div. 1989)………………………………………………………………………………………………8
Lionshead Woods Corp. v. Kaplan Bros., 250 N.J.
Super 535 (Law. Div. 1991)………………………………………………………………………………………………39
Metuchen v. Piscataway Twp., 252 N.J. Super 525
(Law Div. 1991)……………………………………………………………………………………………………………………………39
Tanis v. Township of Hampton, 306 N.J. Super 588
(App. Div. 1997)…………………………………………………………………………………………………………………………34
Toll Bros. Inc. v. Burlington County Freeholders,
194 N.J. 223 (2008)…………………………………………………………………………………………………………………25
Town of Salem v. Durrett, 125 N.H. 29,
480 A. 2d 9, 10 (1984)…………………………………………………………………………………………………………34
Trade Waste Management Asso. v. Hughey, 780 F. 2d
221 (3d Cir. 1985)………………………………………………………………………………………………32, 33, 36
TSI E. Brunswick v. E. Brunswick Board of
Adjustment, 215 N.J. 26 (2014)……………………………………………………………………………………25
Twp. of Pennsauken v. Schad, 160 N.J. 156 (N.J. 1999)………………………39
iv
Defendants, Township Of Bernards, Bernards Township Planning Board (“Planning Board”), Bernards Township Committee, Barbara Kleinert, Jeffrey Plaza, Jim Baldassare, Jodi Alper, John Malay, Kathleen “Kippy” Piedici, Leon Harris, Paula Axt, Randy Santoro, Rich Moschello, Scott Ross, Carol Bianchi, Carolyn Gaziano, Thomas S. Russo, Jr. and John Carpenter respectfully submit this memorandum in opposition to the motion filed by the Plaintiffs for partial judgment on the pleadings.
For the reasons that follow, the Plaintiffs’ motion should be denied.
Preliminary Statement
This suit stems from the Plaintiffs' failure to obtain site-plan approval for a proposed mosque as a consequence of its serially deficient site plans. The record is devoid of evidence of discrimination, discriminatory intent or animus or, violation of Plaintiffs' constitutional or statutory rights. As explained in the Planning Board's Resolution denying approval, the property is simply inadequate to accommodate the proposed use as a mosque with an occupancy rate of 150 congregants. The Plaintiffs have declined to reduce the maximum occupancy, which would appreciably reduce the number of parking spaces required, reduce the impervious coverage, and help alleviate the site plan requirements standing in the way of approval. (See ECF No. 15-1, Exhibit-A ("Resolution"), p. 19).
Plaintiffs filed the instant Motion seeking partial judgment on the pleading on two grounds, both of which are premature and based upon a gross mischaracterization of the pleadings, evidence and law. Plaintiffs seek judgment as to the third, eighth and tenth causes of action in the Complaint, and a holding that Defendants are liable under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. §2000cc(b)(2)(nondiscrimination)for all appropriate relief including damages and equitable remedies.
First, Plaintiffs inaccurately contend that the Defendants admit facts in their Answer that constitute a violation of § 2000cc(b)(2). The linchpin of Plaintiffs' Motion is its mischaracterization of Defendants' Answer as an admission that the Board's parking determination was based upon Plaintiffs' religious faith and that a different individualized standard was applied to the mosque. Defendants' Answer actually provides: "It is admitted that the 3:1 parking ratio was applied to houses of worship which applied for site plan approval before the Islamic Center of Basking Ridge. This is because the revised ITE [Institute of Traffic Engineers] standard did not exist at the time." (ECF No. 15 ("Answer"), ¶ 127)(emphasis added). The Board appropriately accepted the current ITE Parking Generation Manual, 4th edition, 2010, which even Plaintiffs' engineering expert recognized as authoritative, and the other houses of worship referenced by Plaintiffs are not similarly situated comparators. (Id., ¶¶ 127, 139). The 3:1 parking ratio set forth in Ordinance § 21-22.1.a.1.b refers to "churches" and is not applicable to "mosques." Even Plaintiffs' own testimony, and other evidence submitted to the Board demonstrated that the two institutions generate different traffic patterns and numbers of cars. The standard applied under the Ordinance to all applications, is submission of documentation and testimony by applicants as to the anticipated parking demand. (See ECF No. 31-2 ("Ordinance")). Defendants have not admitted discriminatory intent or individualized treatment of the ISBR, there is no evidence supporting such an allegation, nor is consideration of the 2010 ITE traffic engineering standards in calculating parking demand for a mosque a violation of RLUIPA's non-discrimination clause.
Second, Plaintiffs erroneously argue that the parking determination was based upon certain clauses of Township Ordinance § 21-22.1 which are allegedly unconstitutional under the U.S. and New Jersey Constitutions. The language in the Ordinance, including that the Board "may...require that provision be made for the construction of spaces in excess of those required" by the 3:1 ratio, is not unconstitutionally vague and does not grant unbridled discretion to the Board. Plaintiffs also rely upon a narrow and erroneous interpretation of the case law in claiming that the Ordinance is unconstitutional.
There is no evidence or "admission" that the Board acted with any discriminatory intent or animus regarding the parking requirement and Plaintiffs are unable to even raise a genuine issue of material fact that the non-discrimination clause was violated. The Board properly and evenhandedly applied the Ordinance and its decision was appropriately based upon the occupancy, the ITE's current, authoritative engineering traffic standards, and the documentation, testimony and evidence regarding the anticipated parking demand for the use - not the ISBR's religious faith. The Ordinance is not unconstitutionally vague and provides sufficiently clear objective standards to prevent subjective and arbitrary determinations. At a minimum, however, genuine issues of material fact prevent partial judgment for Plaintiff.
Statement of facts
I. ISBR's Application to the Planning Board and for approval
This case stems from the ISBR's application to the Planning Board for preliminary and final site plan approval for proposed construction of a 4,252 square foot mosque and associated site improvements. (See ECF No. 1 (“Compl.”). At the time of the initial application, "houses of worship" were considered a permitted use under the Bernards Township zoning ordinance 21-10.4.a.1.(c) in the R-2 zone, which is the zone in which the subject property is situated. (See ECF No. 15-1, p. 2). The property did not meet all of the requirements of the Township's zoning ordinance or chapter 21, Article V, Development Regulations for a house of worship to be permitted in a residential zone as of right.
A public hearing before the Board commenced on August 21, 2012. (Id., p. 3).[1] While Defendants' Answer essentially agreed that more hearing sessions were held on this application than others, Defendants "den[ied]that the Planning Board regularly approves major site plan applications or major subdivisions in one or just a few meetings." (ECF. No. 15, ¶ 65). Notably, upon submission of a complete application for a site plan, the Board must grant or deny preliminary approval within forty-five days, except that the applicant may consent to extensions, and the Plaintiffs consented to all of the extensions to allow all of the hearing sessions to take place here. (Id., ¶ 37). The transcripts, which Plaintiffs refuse to provide, will show that Plaintiffs' stonewalling and failure to provide credible answers to various questions, including the number of congregants, was a significant factor in the number of hearings. Unfortunately, the Plaintiffs never satisfied the required site plan standards during the subsequent and extended hearing sessions, stemming from the failure of the Plaintiffs' professionals to adequately address the issues raised by the Board.
II. ISBR's failure to satisfy the off street parking standard
A. Township Ordinance § 21-22.1
The Board appropriately inquired into the expected occupancy of the mosque and there is no evidence that it was improperly influenced by the objectors. The ISBR's proposal was for an occupancy of 150 and one parking space for every three prayer mats, based upon the "1 space for every 3 seats" ratio for "churches" under Ordinance § 21-22.1.a. (ECF No. 15, ¶ 128; 31-2, p. 2). The Ordinance provides that "the development plan shall show the total number of off-street parking spaces required for the use or combination of uses indicated in the application." (ECF No. 31-2, p. 1 ("Ordinance"). The Ordinance further states:
Since a specific use may generate a parking demand different from those enumerated [in the schedule], documentation and testimony shall be presented to the Board as to the anticipated parking demand. Based upon such documentation and testimony, the Board may:
(a) Allow construction of a lesser number of spaces, provided that adequate provision is made for construction of the required spaces in the future.
(b) In the case of nonresidential uses, require that provision be made for the construction of spaces in excess of those required herein below, to ensure that the parking demand will be accommodated by off-street spaces.
(ECF No. 31-2, p. 1)(emphasis added). The Ordinance establishes a standard to be considered, not a requirement. (ECF No. 31-3 (Drill/Banisch Memo), p. 2). The Ordinance did not establish 3:1 as the parking standard for all houses of worship, but rather expressly refers to "churches, auditoriums and theaters" and provides for "1 space for every 3 seats or 1 space for every 24 linear inches of pew space." (ECF No. 31-2, p. 2). Plaintiffs' convoluted argument that a "mosque" is a "church" is contradicted by the plain language of the Ordinance, reference to seating or pew space (which mosques do not have), and would conflict with zoning ordinances such as 21-10.4.a.1.(c) which specifically refer to "houses of worship."
B. The January 3, 2013 Drill/Banisch Memo and parking determination
The Plaintiffs and objectors relied upon various traffic engineering standards, including the ITE parking standards which Plaintiffs' engineering expert Henry Ney identified as an authoritative source. (See ECF No. 31-3, p. 5-6,p. 7 n.7).[2]
In December of 2012, ISBR and the BTCRD objectors submitted letter briefs to Board Attorney Jonathan Drill concerning the applicable parking standard. ISBR's expert Mr. Ney testified that the ITE standards were authoritative, but ISBR took the position that the 3:1 parking ratio for churches applied to ISBR's plans. (ECF No. 15,¶ 140).[3] On January 3, 2013, Mr. Drill and Mr. Banisch issued a joint parking memo based upon the submissions of the ISBR and Objector BTCRD. (Id., ¶ 142; No. 31-3). [4] The Drill/Banisch memo notes that one of the "substantial changes" in the 4th edition of ITE's Parking Generation, is the addition of 16 new land use classifications, two of which are "Synagogue" and "Mosque." (ECF No. 31-3, p. 5; Exhibit C, p. 15). These changes "reflect the ITE's recognition that parking requirements for churches...should no longer apply to synagogues and mosques, each of which generates its own distinctive traffic patterns and numbers so each of which should not have (sic) its own distinctive parking requirements." (ECF No. 31-3, p. 6.)(emphasis added). The memo concluded that the Board should use the "85th percentile" date (25.79 spaces for every 1,000 sq. ft. of the gross floor area of the mosque, multiplied by 4.25 (representing the 4,252 square feet of proposed floor space), which yields a parking requirement of 110 spaces, unless the ISBR "presents cogent reasons to the contrary and/or a more detailed study related to the proposed mosque leading to another conclusion." (Id., p. 8).