Rabbi Moshe Gourarie and the Chabad Jewish Center of Toms River Inc. (the “Center”) have sued the Township of Toms River, New Jersey, and the Township’s Zoning Board of Adjustment (“ZBA”) in the Federal District Court of New Jersey. The Center’s complaint is available here.
Rabbi Gourarie has run the Center from his home and garage on eight acres within the Township’s Conservation Residential Zone since 2011 (the “Property”). Prior to 2011, he operated the Center from a home he rented in another part of the Township. According to the complaint, the Property is bordered on three sides by non-residential uses. The Property is in a zone, however, that does not allow houses of worship by right or as a conditional use. In the complaint, the Center contends that under New Jersey law, a clergy residence or parsonage must be allowed in any zoning district, and that the Township cannot legally prevent small religious gatherings within a private residence.
According to the Center, the Property is primarily used as a residence, but is also used for small religious gatherings on Saturdays with between 10 to 15 people. The Property is also used to host occasional gatherings with an average of 12 people, various classes on topics within Judaism that attract an average of 10 people, and Hebrew school classes for five children. In December, 2015 the ZBA ruled that the Center had to obtain a use variance to continue operating from the Property. The Center’s ZBA application was filed after the Township cited Gourarie for eight zoning violations in 2014, including establishing a use not permitted and failure to obtain a development permit.
The complaint alleges significant anti-Semitic hostility in Toms River, including vandalism at a local playground where “burn the Jews” was etched on a piece of equipment. The complaint also cites pages of comments made by Township residents on media websites and Facebook as evidence of hostility towards Jewish individuals.
The complaint states that some residents have placed lawn signs on their properties reading: “Don’t Sell! Toms River Strong.” Residents in the North Dover section of Toms River claim that they have been the subject of high-pressure tactics by real estate agents seeking to buy property on behalf of Orthodox Jewish clients. The complaint alleges that the signs are part of a campaign to keep Ultra-Orthodox Jews out of Toms River. A neighboring town, Lakewood, has a large population of Ultra-Orthodox Jews and the Center claims that the Township has taken several discriminatory actions to keep the same population out of Toms River, including an ordinance limiting real estate canvassing.
The ZBA divided a review of the Center’s application into two phases: (1) to determine whether a variance is required; and (2) if a variance is required, whether it should be granted. After a public hearing, the ZBA concluded that the Center was a “House of Worship” because the Property was being utilized “for more than a casual prayer group.” The Center claims that the determination of use is a final determination under New Jersey law, making its claims ripe for judicial review. The Center also claims that it cannot afford to apply for a use variance. It therefore filed its lawsuit, claiming four counts in violation of RLUIPA (substantial burden, equal terms, nondiscrimination, and exclusion and limits), violation of the Federal Fair Housing Act, violation of its Constitutional rights to Free Exercise and Equal Protection, as well as violations of New Jersey law and the New Jersey Constitution.
Photo by Andy Clymer, Some rights reserved
