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A federal case

Justice department joins Chabad zoning fight against Woodcliff Lake

Attorney General Jeff Sessions tells the Orthodox Union Advocacy Center’s Annual Leadership Mission that the Justice Department will sue Woodcliff Lake for denying a variance to Valley Chabad.
Attorney General Jeff Sessions tells the Orthodox Union Advocacy Center’s Annual Leadership Mission that the Justice Department will sue Woodcliff Lake for denying a variance to Valley Chabad.

Valley Chabad in Woodcliff Lake, which just celebrated its 18th anniversary, has been trying to expand for years. After its request for a zoning variance was voted down in 2016, it filed suit against the Borough of Woodcliff Lake. The case, in federal court, has been proceeding slowly. The two sides are now in the discovery process.

Now, that legal battle has been joined by a higher authority.

Last week, the Justice Department announced that it had filed its own suit against the Borough of Woodcliff Lake for illegally blocking Chabad’s plans for growth.

“We allege that over an eight-year period the town stopped every effort by the group to purchase an alternative worship site, and then denied it permission to expand on its property,” Attorney General Jeff Sessions told the Orthodox Union Advocacy Center’s Annual Leadership Mission last week, announcing the case. The case was filed under the 2000 Religious Land Use and Institutionalized Persons Act.

Mr. Sessions told the group that he was a senator when the law was passed. “I remember that Congress heard testimony that although Jews make up two percent of the population, they made up more that 20 percent of all reported zoning decisions. Sadly, that has not changed much. About 15 percent of our open RLUIPA investigations involve synagogues,” he said.

The lawsuit, like the private suit that preceded it, alleges that Woodcliff Lake repeatedly interfered with Valley Chabad’s efforts to expand both by sabotaging efforts to buy new properties and refusing to allow zoning variances to expand on its present property..

Woodcliff Lake, for its part, denies that there is any animus against Chabad.

“The Borough of Woodcliff Lake has in the past and will continue to welcome people of all faiths, including Valley Chabad,” Ronald Dario, the town’s attorney, wrote in an email to the Jewish Standard.

“We have in the past and will continue to cooperate with any investigation into the Borough’s policies and procedures. We maintain that our Borough is non-discriminatory and welcoming for people of all faiths.

“Lastly, we are saddened by the response of the Valley Chabad in their choice to take this action against our quiet New Jersey town, comprised of hard-working people of all faiths, that welcomed them into our community. We merely requested that they conform to the rules and regulations as required within our Borough borders.”

“We are confident that both Valley Chabad as well as the Justice Department will conclude that the evidence supports non-discriminatory actions of the Borough and the Zoning Board,” the email concluded.

For its part, however, the Justice Department has, in its filing, already reached a conclusion.

Its suit alleges that Woodcliff Lake has “prevented Valley Chabad from purchasing alternative sites in the Borough over an eight-year period, and then denied Valley Chabad’s efforts to expand on its current site, thus imposing a substantial burden on its religious exercise,” in violation of RLUIPA.

The Justice Department alleges that the borough has been motivated by religious animus against Chabad.

“In the early 2000s, the Valley Chabad community, through conversations between Rabbi Drizin and a Borough official, became aware of concerns that its presence would transform the Borough into a town similar to Monsey, New York,” the federal suit alleges. “The Borough official asked Rabbi Drizin for a letter that would explain how Valley Chabad differed from the religious community in Monsey.”

In 2006, according to the suit, Valley Chabad had contracted to purchase a larger property in Woodcliff Lake. Then a member of the Borough Council raised the idea of purchasing the property through eminent domain. Valley Chabad canceled the contract; Woodcliff Lake acquired the property.

In 2011, Valley Chabad was in negotiations with the owners of three adjacent properties. After it entered a contract to purchase one of them, the lawsuit contends that “the Borough expressed interest in creating a zoning overlay that would include the County Road Properties and permit the development of townhomes on those properties.”

The seller then canceled the contract, the borough passed an ordinance permitting townhouses, and townhouses were built on the properties.

In 2013, Valley Chabad entered a contract to buy another property. “We are Woodcliff Lake residents and we do not want the character of the town to change,” is how one council member responded to news of the planned purchase. The council voted to acquire the property and eventually did acquire it.

For its part, the town denies this alleged series of events.

“There is no evidence to support the claim that Borough officials did anything to interfere in the attempts by Valley Chabad to purchase other properties,” Mr. Dario, the borough’s attorney, wrote. “In fact, the Borough has attempted to assist Valley Chabad by identifying other larger plots that can easily accommodate their needs. For reasons unknown to the Borough, Valley Chabad has walked away from other projects and failed to entertain the idea of building on approved locations within the Borough, which were in conformity with the Borough’s land use regulations.”

However, the federal law suit contends that Chabad sought the necessary zoning variances to expand on their present property.

After several hearings, and revisions to their plans, their request to expand was unanimously rejected by the Zoning Board.

But, the lawsuit argues, “The variances requested by Valley Chabad in its variance application do not present a threat to any compelling governmental interest of the Borough.

“The Zoning Board did not use the least restrictive means of addressing its purported concerns about traffic, parking, erosion, flooding, and other supposed impacts when it denied Valley Chabad’s variance application.

“The Zoning Board could have approved Valley Chabad’s variance application with conditions that addressed the Borough’s purported concerns about traffic, parking, erosion, flooding, and other supposed impacts, but did not do so,” the federal lawsuit alleges.

The borough attorney disagreed: “The issue before us is not one of religious discrimination, but is strictly a matter of building size, in that Valley Chabad continues to demand the construction of a 17,000 sq. foot facility with seating for 400 plus congregants, on a single family home plot. The Borough’s Zoning Ordinance requires a three acre minimum for such a facility. The proposed Chabad location is for a property of less than half the required size. The fact that the zoning application required two dozen variances shows how ill suited the property is for their proposed use.”

What’s the likely impact of the federal government joining in the law suit?

“Usually it’s an eye-opener for the municipality,” Eric Rassbach said. Mr. Rassbach is vice president and senior counsel at the Becket Fund, a nonprofit organization specializing in litigating religious liberty claims — including zoning matters.

“Sometimes you see the municipality say, ‘We were wrong, we’ll stop that.’ Others view it as this grave insult to their dignity and really entrench themselves in their position,” he said.

Mr. Rassbach said RLUIPA cases “come up pretty much anywhere there’s a religious group that’s not as popular as other groups. The sort of church that has been there a long time usually doesn’t have a problem. The mosque that just moved in has more issues,” he said. A few years back, the Becket Fund fought for an Albanian mosque in Wayne.

Does a court case guarantee victory?

“They can go either way,” Mr. Rassbach said. “It depends a lot on the facts. They tend to be very fact-intensive cases. Sometimes the defendant can say, ‘We can’t allow this for X, Y, and Z reasons’ and they can put forth a decent reason. The local government is put to its proof. It can’t just speculate.”

In his remarks to the Orthodox Union, Mr. Sessions announced a new program, the Place to Worship Initiative, which aims to raise awareness about the legal rights of religious institutions under RLUIPA.

“I am hopeful that, as more people learn their rights, they will speak out where discrimination exists and prevent further discrimination from happening,” Mr. Sessions said.

Mr. Rassbach said that such education “might head off a lot of these disputes early on.”

“A lot of these localities do not realize they are bound by this federal civil rights statute and treat religious institutions like they do a lot of land use applicants. In a lot of municipalities, there are some people who enjoy the power of being able to say no to particular land use applicants. They’re very unused to seeing this sort of federal statute come in and say you have to treat this as something that is specially protected as opposed to a convenience store,” Mr. Rassbach said.

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