SHIPP, District Judge.
This matter comes before the Court on Plaintiffs The Islamic Society of Basking Ridge ("ISBR") and Mohammad Ali Chaudry, Ph.D.'s ("Dr. Chaudry") (collectively, "Plaintiffs") Motion for Partial Judgment on the Pleadings. (ECF No. 29.) Defendants Township of Bernards ("Bernards Township" or "Township"),
This case requires the Court to examine a township planning board's denial of a Muslim congregation's site plan application to build a mosque. (See Compl. ¶ 1, ECF No. 1.) In the instant Motion, Plaintiffs challenge the Planning Board's decision on two bases: (1) Defendants' disparate application of an off-street parking requirement between Christian churches and Muslim mosques, pursuant to the Religious Land Use and Institutionalized Persons Act ("RLUIPA"); and (2) the purported unconstitutional vagueness of a parking ordinance ("Parking Ordinance") under the Federal and New Jersey Constitutions. After careful consideration, the Court determines that Plaintiffs are entitled to judgment on the pleadings with regard to both issues.
The Bernards Township Parking Ordinance sets forth a 3:1 ratio, between seats and parking spaces, as an acceptable standard for "churches." The Parking Ordinance, by reference, provides a definition of "churches" that includes mosques, yet Defendants have applied their own unsubstantiated interpretation that the term "churches" exclusively refers to Christian churches and not Muslim mosques. Based on their review of the application and relevant evidence, Defendants required ISBR to construct parking spaces far exceeding the 3:1 ratio afforded to Christian churches.
Defendants' rationale for their decision was primarily based on: (1) a 2010 informational report that set forth varying traffic needs depending on the type of religious institution at issue; and (2) testimony from an expert hired by a local community organization. Here, Plaintiffs' principle challenge arises from Defendants' initial determination that the 3:1 ratio for "churches" was a separate standard exclusively reserved for Christian churches. The method by which Defendants disparately treated ISBR's application — i.e., by incorporating a report — does not negate Plaintiffs' discrimination claim. Defendants' interpretation of the Parking Ordinance's text plainly distinguishes between houses of worship based on religious affiliation. Accordingly, Defendants' application of the Parking Ordinance violates RLUIPA's Nondiscrimination Provision, which strictly prohibits express discrimination on the basis of religion.
While local zoning boards generally retain substantial discretion in their ability to consider traffic, aesthetic, and other local community needs, RLUIPA codifies narrow exceptions that apply where a zoning board's conduct infringes upon First Amendment religious rights. Here, Plaintiffs have raised a valid challenge under one of RLUIPA's narrow, yet highly protective, provisions — the Nondiscrimination Provision. This Provision applies strict liability toward laws and the application of laws that lack neutrality and general applicability with regard to religion. Accordingly, the Court does not consider Defendants' attempt to justify their conduct as necessary to further the township's interest in regulating local traffic and parking. Viewing the pleadings in the light most favorable to Defendants, the Court, therefore, finds that Defendants' application of the Parking Ordinance's 3:1 ratio for "churches" constitutes impermissible discrimination on the basis of religion.
As to Plaintiffs' related assertion of unconstitutional vagueness, Plaintiffs identify provisions within the Parking Ordinance
According to Defendants, the challenged provisions are sufficiently clear because the Parking Ordinance sets forth a 3:1 ratio for "churches," and only permits discretion "to ensure that the parking demand will be accommodated by off-street spaces." Bernards Twp. Ord. § 21-22.1. Neither proffered standard, however, constitutes a guideline for measuring the need for off-street parking. Given that Plaintiffs' vagueness challenge arises from the Board's unlimited discretion to disregard the 3:1 ratio, the fact that the Parking Ordinance contains the 3:1 ratio is inconsequential. Similarly, the stated goal of ensuring sufficient off-street parking fails to provide any standard for measuring the amount of parking to require from applicants.
Defendants also contend that their discretion is sufficiently constrained by the requirement that Defendants accept, and base their decisions on, applicants' submitted evidence. Absent explicit criteria to determine applicants' parking needs, however, Defendants' assurances are illusory. Defendants retain unfettered discretion to disregard evidence adverse to their views and can require applicants to submit specific evidence that Defendants can later reference to justify discriminatory decisions. Accordingly, the Court determines that the challenged portions of the Parking Ordinance lack sufficient standards to prevent arbitrary and discriminatory enforcement.
For these reasons, the Court
This case arises from the purported religious discrimination by Bernards Township against a local Islamic society, ISBR, in connection with a site plan approval application to build a mosque. Defendants allegedly engaged in impermissible discriminatory conduct following receipt of ISBR's April 20, 2012 application, until they ultimately denied ISBR's application on January 19, 2016. (Compl. ¶¶ 15, 123; Answer ¶¶ 15, 62, 123.) In response, ISBR and its President, Dr. Chaudry, filed the instant eleven-count action arising under RLUIPA, the First, Fifth, and Fourteenth Amendments of the United States Constitution, and the New Jersey Constitution. (Compl. ¶¶ 308-80.)
The parties filed their respective pleadings and Plaintiffs now move for partial judgment on the pleadings as to Counts Three (on the issue of parking), Eight, and Ten. Count Three alleges that Defendants violated RLUIPA's prohibition against government entities "imposing or implementing land use regulations in a manner that discriminates against any assembly or institution on the basis of religion or religious denomination" ("Nondiscrimination Provision"). (Compl. ¶ 321.) Count Eight
On November 9, 2011, with the goal of building a mosque, Plaintiffs purchased a property ("Property") in the Liberty Corner
Located within various residential zones in the Township, there are at least ten houses of worship:
(Compl. ¶ 58; Answer ¶ 58.) Similar to ISBR's Property, seven
In anticipation of its application, ISBR shared its site plan with the nearby residents, and held two open houses to discuss its plan with the community. (Answer ¶ 60.) To prepare its application in compliance with the Board's requirements, ISBR solicited feedback from "the Board and certain engineering and planning staff' during a January 17, 2012 work session. (Compl. ¶ 61; Answer ¶ 61.) ISBR incorporated the information obtained from the work session, and decided to build a new structure to comply with certain setback requirements instead of renovating the existing structure. (Compl. ¶ 61; Answer ¶ 61.)
On April 20, 2012, ISBR applied for preliminary and final site plan approval, proposing the construction of a 4,252 square foot mosque on the Property. (Compl. ¶ 62; Answer ¶ 62.) The site plan proposed a building consisting of "a 1,594-square-foot prayer hall, a wudu room, a multipurpose room, an entry gallery, a kitchen, and an administrative office." (Compl. ¶ 62; Answer ¶ 62.) Additionally, the site plan provided for fifty parking spaces in light of the prayer hall's estimated occupancy of 150 people.
Prior to, and for the duration of ISBR's pending application, ISBR faced numerous instances of community opposition. In or around January 2012, for example, Dr. Chaudry reported that "an unknown individual knocked over and stomped on ISBR's mailbox."
Soon after ISBR submitted its application, the Board considered a proposed amendment to the Township's zoning ordinance.
As further indication of the community's opposition, numerous objectors opposed ISBR's application at the Board hearings.
ISBR's hearings before the Planning Board commenced on August 7, 2012, and continued until the denial of ISBR's application on December 8, 2015 — amounting to 39 hearings over a three-and-a-half year period, which is more than the Planning Board held for any previous applicant.
In particular, Plaintiffs' application was subjected to unprecedented individualized inquiry into its off-street parking needs. (Compl. ¶ 127; Answer ¶ 127.) Bernards Township Ordinance § 21-22.1 ("Parking Ordinance") (Pls.' Ex. 2, ECF No. 31-2) sets forth a schedule of "acceptable" parking standards for a variety of uses.
The word "churches" is not expressly defined in the Parking Ordinance. (Compl. ¶ 126; Answer ¶ 126.) The Parking Ordinance's operative definitions clause provides that words that are not expressly defined have the definitions set forth in Webster's Third New International Dictionary of the English Language (unabridged version) ("Webster's Dictionary"). (Compl. ¶ 126; Answer ¶ 126.) The Webster's Dictionary definition, therefore, applies. (Compl. ¶ 126; Answer 1126.) Because the
Prior to ISBR's application, the Planning Board applied the Parking Ordinance's 3:1 parking ratio for "churches" to every house of worship that applied for site plan approval, including two local synagogues. (Compl. ¶ 217; Answer ¶ 127.) Additionally, prior to ISBR's application, the Planning Board accommodated requests for fewer parking spaces than required by the Parking Ordinance — i.e. it issued downward variances. (Compl. ¶ 217; Answer ¶ 127.)
Given that ISBR's original site plan anticipated a maximum of 150 worshippers in its prayer hall, ISBR's application provided for fifty parking spaces — a 3:1 ratio between seats (prayer mats) and parking spaces. (Compl. ¶¶ 10,128; Answer ¶¶ 10,128.) As part of the review process for a development proposal, the Township Planner issues a review letter designed to inform the Board of required exceptions and variances an applicant needs from the applicable land use ordinances.
On August 7, 2012, the Board initiated public hearings on ISBR's application. (Compl. ¶ 131; Answer ¶ 131.) At the August 7, 2012 and September 4, 2012 hearings, Board members and community objectors questioned the future growth rate of ISBR's congregation in determining the mosque's expected occupancy. (Compl. ¶ 131; Answer ¶ 131.) In response, Dr. Chaudry stated that ISBR currently had
Following these hearings, Board Planner Banisch issued a revised October 25, 2012 memorandum on the issue of parking. (Compl. ¶ 136; Answer ¶ 136.) There, Mr. Banisch estimated the size of a Muslim prayer mat and calculated that 168 prayer mats could theoretically fit into the prayer hall.
(Compl. ¶¶ 138, 145; Answer ¶¶ 138, 145.)
Prior to ISBR's application, the Board had never applied ITE's parking rates to any house of worship's application for site plan approval. (Answer ¶ 139.) Notably, the ITE parking rates at issue were not published until 2010 and were, therefore, unavailable when houses of worship submitted proposed site plans to the Board prior to ISBR's application. (Id. ¶ 139.) Based on the requested submissions,
A week later, on December 21, 2012, BTCRD objectors asserted that the Parking Ordinance's 3:1 ratio for churches did not apply to ISBR's application "because a mosque is not a church." (Compl. ¶ 141; Answer ¶ 141.) BTCRD argued that the mosque-specific ratio in ITE's Parking Generation report required 110 spaces, which exceeded the 3:1 ratio. (Compl.
(Compl. ¶ 142; Answer ¶ 142.)
In support of the first position, the Board referenced the following language from the Parking Ordinance:
(Compl. ¶ 144; Answer ¶ 144.) Based on this provision, the Drill/Banisch Memo incorporated the ITE Parking Generation report's rate for mosques and calculated that ISBR must provide 110 parking spaces. (Compl. ¶ 145; Answer ¶ 145.) The Drill/Banisch Memo provided that ISBR could present alternative recommendations "based on a local parking study," and that the 110 parking space requirement would be reconsidered upon submission of evidence indicating otherwise. (Compl. ¶ 145; Answer ¶ 145.)
Accordingly, the Board requested that ISBR Traffic Engineer Henry Ney ("Mr. Ney") submit additional evidence on the issue of parking. (Compl. ¶ 146; Answer ¶ 146.) In response, Mr. Ney collected data from four different mosques on six different occasions and calculated the number of parking spaces. (Compl. ¶ 146; Answer ¶ 146.) From January to June 2013, ISBR presented supplemental parking studies and testimony with regard to ISBR's estimated parking needs.
In response, ISBR offered to split its weekly service into two separate services, similar to certain local churches.
In August 1995, Chabad Jewish Center ("Chabad"), which is located in a residential zone, applied for preliminary and final site plan approval to construct a forty-seat synagogue as an addition to an existing structure. (Compl. ¶ 244; Answer ¶ 244.) The Board promptly approved Chabad's application in less than three months, after two public hearings. (Compl. ¶ 244; Answer ¶ 244.)
Chabad's proposed site plan applied the Parking Ordinance's 3:1 ratio and provided seventeen parking spaces.
Years later, in November 2000, Chabad applied for site plan approvals regarding the addition of a 2,581 square foot clergy residence, an 18,126 square foot building for classrooms and offices, a 6,318 square foot 200-seat sanctuary, and a 175-seat social hall. (Compl. ¶ 249; Answer ¶ 249.) In less than six months, and after two public hearings, the Board approved Chabad's proposals. (Compl. ¶ 249; Answer ¶ 249.)
When evaluating Chabad's November 2000 site plan proposals, the Board applied the Parking Ordinance's 3:1 ratio to Chabad's proposed 200-seat sanctuary, multiple classrooms, and clergy residence, and required ninety-four parking spaces. (Compl. ¶ 250; Answer ¶ 250.) In applying the 3:1 ratio, the Board did not consider the proposed 175-seat social hall because Chabad testified that certain parts of the structure would not be simultaneously used. (Compl. ¶¶ 250-51; Answer ¶¶ 250-51.) Additionally, the Board considered
In or around November 1993, Congregation B'nai Israel ("B'nai Israel"), which is located in a residential zone, applied for preliminary and final site plan approval, proposing a 25,808 square foot complex consisting of a synagogue, religious school, and nursery school. (Compl. ¶ 257; Answer ¶ 257.) Within less than five months, the Board granted both preliminary and final site approval after two public hearings. (Compl. ¶ 257; Answer ¶ 257.)
Upon reviewing B'nai Israel's site plan, which proposed 745 seats,
The Board granted B'nai Israel's proposal for eighty parking spaces because "the proposed parking areas [are] constrained by the locations of the proposed septic field and of the wetlands area on the Property," such that "strict enforcement of the requirement regarding the number of parking spaces to be provided would be impracticable or would exact undue hardship." (Compl. ¶ 259; Answer ¶ 259.) Upon granting B'nai Israel's application, the Board recommended that B'nai Israel provide for a grass-covered overflow parking lawn. (Compl. ¶ 259; Answer ¶ 259.)
In or around 1998, Millington Baptist Church ("Millington"), which is located in a residential zone, applied for preliminary site plan approval proposing construction of a 67,390 square foot church with 1,200 seats, twenty-one Sunday School classrooms, and 403 parking spaces. (Compl. ¶ 269; Answer ¶ 269.) In October 2000,
In considering Millington's application, the Board applied the Parking Ordinance's 3:1 ratio for "churches." (Compl. ¶ 270; Answer ¶ 270.) "The Board did not perform an individualized analysis of Millington's actual parking need." (Compl. ¶ 270; Answer ¶ 270.) The Board, therefore, "treated Millington differently and better than ISBR in that the Board calculated parking for a house of worship using the 3:1 parking ratio set forth in the [Parking] [O]rdinance."
Years later, in or around 2007, Millington applied for preliminary and final site
In reviewing Millington's 2007 application, the Board noted that Millington's proposal for 157 parking spaces fell short of the 384 parking spaces required by the Parking Ordinance. (Compl. ¶ 274; Answer ¶ 274.)
Under Federal Rule of Civil Procedure 12(c), "judgment will not be granted unless the movant clearly establishes that no material issue of fact remains to be resolved and that [the movant] is entitled to judgment as a matter of law." Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008) (quoting Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988)). "[The Court] must view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Id. (quoting Jablonski, 863 F.2d at 290-91). "The assumption of truth does not apply, however, to legal conclusions couched as factual allegations ...." Bethea v. Roizman, No. 11-254, 2012 WL 4490759, at *5 (D.N.J. Sept. 27, 2012).
Specifically, where a plaintiff brings the motion for judgment on the pleadings, "the question for determination is whether on the undenied facts alleged in the complaint and assuming as true all the material allegations of fact in the answer, the plaintiff is entitled to judgment as a matter of law." United States v. Blumenthal, 315 F.2d 351, 352 (3d Cir. 1963). In other words, "the question is whether the facts alleged in the answer are material in the sense that, if proved, they will constitute a legal defense to the plaintiff's claim." Id. at 352-53.
Plaintiffs argue that the Planning Board discriminated against ISBR because, "[b]ut for ISBR's faith, it would not have been required to incorporate plans for a parking lot [that is] more than twice the size of what would be `acceptable' for a church or synagogue." (Pls.' Moving Br. 13, ECF No. 30.) Plaintiffs assert that Defendants, therefore, have admitted in their pleadings a violation of RLUIPA's
Under RLUIPA's Nondiscrimination Provision, Plaintiffs argue that "[i]nvidious motive is not a necessary element," but rather "[a]ll you need is that the state actor meant to single out a plaintiff because of the protected characteristic itself." (Id. at 15 (quoting Hassan v. City of New York, 804 F.3d 277, 297 (3d Cir. 2015)).) In applying this standard, Plaintiffs argue that it is sufficient to show that Defendants would not have applied the "different" parking standards to ISBR's application if Plaintiffs were not Muslim. (Id.)
Plaintiffs assert that the Parking Ordinance lays out a clear 3:1 ratio for houses of worship applying for site approval. (Id. at 17.) Plaintiffs further argue that Defendants admit to applying the 3:1 ratio to every house of worship since the Parking Ordinance was first adopted. (Id.) In contrast, Plaintiffs assert that Defendants admit that the 3:1 ratio was not applicable to "mosques," and instead only applied to "churches, auditoriums and theaters." (Id.) According to Plaintiffs, Defendants have admitted that they "subjected ISBR to an `individualized determination' based on an erroneous interpretation that had never been applied to any other applicant, only because the proposed establishment was not a [Christian] church, but a mosque." (Id.)
In anticipation of Defendants' reliance on the ITE Parking Generation report, Plaintiffs argue that Defendants only applied the ITE parking standards because ITE "explicitly distinguished among mosques, synagogues, and churches as to parking requirements." (Id.) Plaintiffs argue that the ITE Parking Generation report was the only known source that made the distinctions and that ITE's report does not provide governments with "a free pass to discriminate on the basis of religion." (Id. at 18.)
Plaintiffs further argue that Defendants had never "engage[d] in individualized determinations of parking need for any prior applicants." (Id.) "Rather, the Planning Board applied the Parking Ordinance's 3:1 ratio to a church (Millington) and two synagogues (B'nai Israel and Chabad), but not to ISBR." (Id.) Plaintiffs additionally argue that Defendants "admit that the Planning Board historically applied the 3:1 ratio to synagogues[,] despite [their] position with respect to ISBR's application that the word `church' in the [Parking] [O]rdinance refers only to Christian churches." (Id.)
In opposition, Defendants argue that RLUIPA requires Plaintiffs to identify "similarly situated comparators" to determine whether discrimination occurred under RLUIPA's Nondiscrimination Provision, as well as the Equal Terms Provision
In applying this standard, Defendants argue that they have not admitted to disparate application of the 3:1 parking ratio. (Id. at 22.) Defendants also argue that ISBR's application was the first instance in
Moreover, Defendants argue that the Parking Ordinance "recognizes that a specific use may generate a parking demand different from the schedule[,] thus requir[ing] testimony and documentation as to the anticipated parking demand." (Id. at 26.) Because the purpose of the Parking Ordinance is "to accurately assess the parking demand as to each specific use," Defendants assert that an evenhanded application of the Parking Ordinance would nevertheless result in different ratios depending on the specific application. (Id. at 27.) Specifically, Defendants argue that Plaintiffs have failed to identify similarly situated comparators because the comparator-applications identified by Plaintiffs pre-date ISBR's 2012 application and the 2010 ITE Parking Generation report. (Id. at 26.) Defendants additionally argue that the 3:1 ratio is specifically applicable to "churches," which have different traffic patterns than mosques or synagogues. (Id.)
Further, Defendants argue that requiring 107 spaces would permit ISBR's mosque to grow, because accepting ISBR's proposal of fifty or fifty-six spaces would limit additional people from attending worship service. (Id. at 29.) According to Defendants, Plaintiffs testified that congregants could find off-site parking but were unable to identify a specific location. (Id.)
Specifically, as to RLUIPA's Nondiscrimination Provision, Defendants argue that Plaintiffs must establish discriminatory intent. (Id. at 21.) Further, Defendants argue that Plaintiffs mischaracterize RLUIPA's Nondiscrimination Provision as "switching the burden of proof to the government after the plaintiff makes out a prima facie case." (Id. at 22.)
In applying the Nondiscrimination Provision, Defendants argue that Plaintiffs have failed to proffer direct or circumstantial evidence of discrimination or intent to discriminate based on religion. (Id. at 23.) Defendants assert that the pleadings show that "the Board treated all of the houses of worship the same in accordance with the standards in effect at the time." (Id.) According to Defendants, the ITE parking standards are authoritative and were updated in 2010 "to allow greater accuracy in determining parking requirements, and would be applied to any mosque, church or synagogue after that date." (Id.)
Defendants also argue that all applicants are "required to present evidence of anticipated parking demand." (Id. at 24.) Specifically, with regard to ISBR's application, Defendants state that they took testimony from ISBR Traffic Engineer Mr. Ney, who recommended "that the number of occupants should be divided by a factor of 1.35" to determine the parking need. (Id. at 25.) Moreover, Defendants note that the objector BTCRD's expert traffic engineer, Mr. Litwornia, recommended "that the number of occupants should be divided by a factor of 1.4." (Id.)
According to Defendants, "the Board gave more weight to Mr. Litwo[m]ia's opinion due to `the strengths and weaknesses of [Mr. Ney and Mr. Litwornia's] analyses' and decided that the required number of parking spaces was 107." (Id.) Defendants assert that "[i]t is the Board's prerogative to credit or discredit the expert opinions." (Id.) Defendants further argue that "[a]t all times the applicant
Next, in response to Plaintiffs' reliance on Hassan to argue the relevant standard for discriminatory intent, Defendants argue that Hassan is irrelevant because it did not involve the application of zoning ordinances. (Defs.' Opp'n Br. 27 (citing Hassan, 804 F.3d at 297).) In further response to Hassan, Defendants argue that even if Plaintiffs were not required to establish discriminatory intent, Plaintiffs have failed to establish disparate treatment. (Id. at 28.) Defendants also distinguish Plaintiffs' reliance on Fowler v. Rhode Island, by asserting that, unlike the government in Fowler, Defendants did not concede that they disparately treated ISBR. (Defs.' Opp'n Br. 27 (citing Fowler, 345 U.S. 67, 69, 73 S.Ct. 526, 97 S.Ct. 828 (1953)).)
In reply, Plaintiffs argue that Defendants admit that the 3:1 ratio should apply to mosques, when in fact the Planning Board refused to consider mosques as "churches" under the Parking Ordinance. (Pls.' Reply Br. 3, ECF No. 51.) Plaintiffs further argue that Defendants fail to dispute that they adopted a "mosque-specific methodology," which Defendants justify by relying on the ITE Parking Generation report. (Id. at 4.) According to Plaintiffs, Defendants admit that the Parking Generation report acknowledges that it is not authoritative and is merely an "informational guide." (Id.) Contrary to Defendants' arguments, Plaintiffs assert that New Jersey law does not view the ITE Parking Generation report as authoritative and that ISBR traffic engineer Mr. Ney only included the ITE-based calculations in his work at the Planning Board's direction. (Id.)
In response to Defendants' efforts to distinguish Hassan, Plaintiffs argue that Hassan supports the proposition that invidious purpose is not required to support a RLUIPA violation. (Id. at 5.) Plaintiffs argue that the instant matter, like Hassan, involves governmental policy decisions that are based on Plaintiffs' religious affiliation. (Id.)
Finally, with regard to Defendants' argument that Plaintiffs have failed to identify sufficient comparators, Plaintiffs argue that RLUIPA's Nondiscrimination Provision does not require comparators. (Id. at 6.) According to Plaintiffs, the Third Circuit only requires comparators under RLUIPA's Equal Terms Provision, and not the Nondiscrimination Provision. (Id. at 6-7.) Plaintiffs further assert that even if comparators were required, Chabad, B'nai Israel, and Millington are sufficient comparators. (Id. at 7-9.)
With regard to Counts Eight and Ten, Plaintiffs argue that certain provisions of the Parking Ordinance are unconstitutionally vague under the United States and New Jersey Constitutions. Specifically, Plaintiffs argue that the provisions in the Parking Ordinance permitting the Board to discretionarily raise parking requirements in excess of the 3:1 ratio affords the Planning Board unbridled discretion. (Pls.' Moving Br. 19.)
In support of their argument, Plaintiffs rely on Cunney v. Board of Trustees of Village of Grand View, N.Y., 660 F.3d 612 (2d Cir. 2011), and Bykofsky v. Borough of Middletown, 401 F.Supp. 1242 (M.D. Pa. 1975), as examples where similarly vague ordinances were found unconstitutional. (Pls.' Moving Br. 19-22.) Based on the case
In opposition, Defendants argue that the Parking Ordinance provides sufficient guidelines under the United States and New Jersey Constitutions. (Defs.' Opp'n Br. 31-40.) In support, Defendants state that the Parking Ordinance contains a "clear" objective: to "provide for parking demand by requiring off-street parking except as noted for residential development." (Id. (quoting Bernards Twp. Ord. § 21-22.1).) Defendants additionally cite to the Parking Ordinance's schedule of acceptable parking standards, which Defendants argue provides a 3:1 ratio for churches "but not mosques." (Id. at 33, 36, 38.) Further, Defendants contend that the more stringent vagueness test under Hoffman Estates does not apply because Hoffman Estates did not involve parking. (Id. at 37-38.)
Next, Defendants argue that an ordinance need not provide for all conceivable applications, "such as mosques," and that the Parking Ordinance's provision for accepting case-specific evidence from applicants constitutes a sufficient standard for unspecified uses. (Id. at 33-34.) Defendants also argue that the Parking Ordinance requires the Board to base its decision on applicants' case-specific evidence, thereby further limiting the Board's discretion. (Id. at 34-36.)
Defendants proceed to distinguish Plaintiffs' reliance on Cunney by arguing that the Second Circuit case did not involve parking needs. (Id. at 34-35.) Defendants further state that the ordinance in Cunney did not contain the necessary specifications, whereas the Parking Ordinance provides sufficient guidelines. (Id. at 35.) Defendants, however, do not elaborate on this point. (Id.) Defendants similarly argue that Bykofsky is inapplicable because it involved a penal ordinance and because it upheld portions of the ordinance as necessarily flexible. (Id. at 37.) Defendants additionally argue that the Parking Ordinance provides the Board with necessary flexibility and provides applicants adequate notice of what constitutes sufficient off-street parking. (Id. at 35.) For these propositions, Defendants cite the Parking Ordinance's procedure for permitting applicants to submit documentation and testimony. (Id. at 35-36.)
In reply, Plaintiffs assert that Defendants have failed to cite any precedent for permitting unbridled discretion in determining parking requirements. (Pls.' Reply Br. 11.) Finally, Plaintiffs respond that Defendants' reliance on the procedure for submitting applicants' evidence does not constitute a standard by which the Board must objectively determine off-street parking needs. (Id. at 11-12.)
The First Amicus Brief is submitted by "religious, legal, and civil liberties organizations concerned that [RLUIPA] be accurately interpreted and that constitutional rights be fully enforced." (First Amicus Br. 1, ECF No. 75.) The First Amicus Brief discusses RLUIPA's legislative history and relevant case law to argue that Congress's objective was to redress the very behavior giving rise to the instant matter. (See, e.g., id. at 4.) According to the First Amicus Brief, litigation trends "demonstrate that the number of RLUIPA cases involving mosques is disproportionate to the percentage of Muslims in the U.S. population." (Id.) On the merits, the First Amicus Brief supports Plaintiffs' arguments that Defendants violated RLUIPA's Nondiscrimination Provision and that the Parking Ordinance is unconstitutionally vague. (Id. at 5-15.)
The Second Amicus Brief consists of civil liberties and civil advocacy groups "that work to serve members of religious communities and bridge interfaith understanding." (Second Amicus Br. 1, ECF No. 76.) The Second Amicus Brief argues that Defendants' treatment of ISBR is indicative of a growing level of national and local anti-Muslim animus. (Id. at 3-5.) Additionally, the Second Amicus Brief describes multiple instances of alleged hate crimes directed toward Islamic houses of worship, and argues that "ISBR was a target of anti-Muslim hate crimes." (Id. at 5-7.)
The Second Amicus Brief also cites cases involving alleged overt acts of zoning-related anti-Muslim animus and examples of "pretextual zoning arguments," as evidence that "anti-Muslim RLUIPA cases continue[] to rise at an alarming rate." (Id. at 7-11.) Finally, the Second Amicus Brief asserts that "[r]eligious land-use matters are particularly relevant in New Jersey" because it is "the most densely populated state in the country, as well as one of the most racially, ethnically, and religiously diverse states." (Id. at 12.) In support, the Second Amicus Brief points toward other instances of alleged anti-Muslim animus based on discriminatory zoning practices in New Jersey. (Id. at 12-13.)
Congress passed RLUIPA upon finding that local zoning boards would use "vague and universally applicable reasons," such as traffic or aesthetics, to contrive widespread discrimination on the basis of religion.
Whereas the Substantial Burdens Provision "is directly responsive to the difficulty of proof' where zoning boards engage in individualized assessments, the Equal Terms and Nondiscrimination Provisions "enforce the Free Exercise Clause ... against [land use regulations]
When applying RLUIPA, courts "shall... construe[] [the statute] in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of [the statute] and the Constitution." 42 U.S.C. § 2000cc-3(g). Additionally, "[i]f a plaintiff produces prima facie evidence to support a claim alleging a violation
The Court first examines the text of the Parking Ordinance under RLUIPA. In pertinent part, the Parking Ordinance sets forth a schedule containing "[parking] standards acceptable to the Township." Bernards Twp. Ord. § 21-22.1a1. The schedule specifically sets forth a 3:1 ratio, between seats and parking spaces, for "[c]hurches, auditoriums, [and] theaters." Bernards Twp. Ord. § 21-22.1. The Purpose Section of the Township Ordinance provides: "[a]ny word or term not defined herein shall be used with a meaning as defined in Webster's Third New International Dictionary of the English Language, unabridged (or latest edition)." Bernards Twp. Ord. § 21-2. The Bernards Township Ordinance does not define the term "church." (Compl. ¶ 126; Answer ¶ 126.) According to Webster's Dictionary, "church" is defined as "a place of worship of any religion ([e.g.,] a Muslim [mosque])." (Compl. ¶ 126; Answer ¶ 126.)
Based on the applicable definition of "church," the Court finds that the Parking Ordinance's 3:1 ratio for "churches" applies to mosques.
In their Answer, Defendants insist, without explanation, that the Parking Ordinance's use of the term "churches" does not include mosques. (See Compl. ¶ 142; Answer ¶ 142.) When the Court specifically asked counsel for Defendants at oral argument whether the Parking Ordinance's 3:1 ratio for "churches" applies to mosques, counsel responded:
(Oral Arg. Tr. 34:6-12, Dec. 20, 2016.) In response to the Court's question,
Upon reviewing Section 21-10.4a3(g), the Court finds that Defendants' reference to the term "house of worship" is not pertinent to the Parking Ordinance's definition of "churches."
Upon reviewing the relevant provisions, the Court finds that the Parking Ordinance's 3:1 ratio applies to churches, synagogues, and mosques. Accordingly, the Parking Ordinance is neutral and generally applicable, and does not give rise to a facial violation of RLUIPA's Nondiscrimination Provision.
The Court next examines Defendants' application of the Parking Ordinance. Here, it is undisputed that Defendants interpreted the term "churches" to exclude mosques. According to Defendants' interpretation, the Parking Ordinance makes a clear distinction between Christian churches and Muslim mosques.
In setting forth their arguments, the parties disagree on four core issues: (1) the applicable standard of intent; (2) whether RLUIPA's Nondiscrimination Provision requires Plaintiffs to establish similarly situated comparators; (3) whether Plaintiffs' proffered comparators are similarly situated to Plaintiffs; and (4) whether Defendants' disparate treatment of Christian churches, Jewish synagogues, and Muslim mosques is based on religion, as opposed to some other legitimately distinguishing
Plaintiffs argue that Defendants' intent to apply the 3:1 ratio differently on the basis of religion is sufficient, regardless of whether Defendants possessed animosity toward a particular religious group. (Pls.' Moving Br. 15 (citing Hassan, 804 F.3d at 297-98).) Defendants argue that Plaintiffs fail to offer evidence of requisite intent, but Defendants do not further elaborate and do not directly confront Plaintiffs' reliance on Hassan.
Moreover, neither RLUIPA nor Third Circuit jurisprudence indicates a more rigorous intent requirement. As confirmed in their pleadings, Defendants' decision to exclude mosques from the Parking Ordinance's 3:1 ratio for "churches" was intentional. (See Compl. ¶ 142; Answer ¶ 142; Defs.' Opp'n Br. 26, 33; Oral Arg. Tr. 34:7-12.) Plaintiffs have accordingly satisfied the intent requirement and need not prove that Defendants harbored hostility toward Muslims under RLUIPA's Nondiscrimination Provision.
Generally, the Third Circuit requires similarly situated comparators under RLUIPA's Nondiscrimination Provision. Where a government expressly discriminates on the basis of religion, however, the Nondiscrimination Provision does not require a showing of similarly situated comparators. The instant case presents an example of express discrimination, thus precluding the need to identify specific comparators.
The Third Circuit's seminal case on RLUIPA's Equal Terms and Nondiscrimination Provisions is Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007). Lighthouse Institute arose under the Equal Terms Provision, and there, the Third Circuit established that both Provisions are subject to similar standards. See, e.g., id. at 263 (determining that neither the Equal Terms Provision nor the Nondiscrimination Provision requires a showing of substantial burden on religious exercise).
In Lighthouse Institute, the court cited legislative history that categorized both the Equal Terms and Nondiscrimination Provisions as "enforc[ing] the Free Exercise
In reply to Defendants' reliance on Lighthouse Institute, Plaintiffs argue that the Court should adopt the Second Circuit's analysis in Chabad because it is "`one of the few courts' to have examined the Non[d]iscrimination [P]rovision." (Pls.' Reply Br. 6.) In Chabad, the Second Circuit interpreted RLUIPA's Nondiscrimination Provision as not requiring comparators to establish a violation. See 768 F.3d at 199 (determining that analyzing comparators "is not necessary to establish a non-discrimination claim.... [and that a valid claim] may be proven without reference to a religious analogue"). Plaintiffs' rationale for adopting Chabad, however, is that Lighthouse Institute only required comparators for the Equal Terms Provision and that the Third Circuit has not otherwise interpreted the Nondiscrimination Provision. (Pls.' Reply Br. 6.) In light of the Court's reading of Lighthouse Institute, the Court adopts the Third Circuit's general requirement for comparators and declines to follow Chabad.
Defendants appropriately interpreted Lighthouse Institute as requiring comparators, yet they failed to recognize the implicit exception to the general rule where an ordinance, or the application of that ordinance, makes an express distinction on the basis of religion. In arriving at its conclusion that RLUIPA's Equal Terms and Nondiscrimination Provisions require comparators, the Lighthouse Institute court relied heavily on the Supreme Court's rationale in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). See Lighthouse Inst., 510 F.3d at 265 (citing Lukumi, 508 U.S. at 536-37, 113 S.Ct. 2217). According to Lukumi, comparators are necessary to determine whether a facially neutral and generally applicable law is designed to permit disparate
Lukumi explained that the Free Exercise Clause's protection is strongest where a law expressly "discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Id. at 532, 113 S.Ct. 2217. As an example, Lukumi cited the Supreme Court's decision in Fowler v. Rhode Island, where Rhode Island interpreted a facially neutral ordinance "to prohibit preaching in a public park by a Jehovah's Witness but to permit preaching during the course of a Catholic mass or Protestant church service." Lukumi, 508 U.S. at 533, 113 S.Ct. 2217 (citing Fowler, 345 U.S. at 67-70, 73 S.Ct. 526). In Fowler, the Supreme Court held that Rhode Island's interpretation of the ordinance was unconstitutional without analyzing specific comparators. 345 U.S. at 67-70, 73 S.Ct. 526. Accordingly, in reference to the conduct in Fowler, the Lukumi Court noted that a "law targeting religious beliefs as such is never permissible." Lukumi, 508 U.S. at 533, 113 S.Ct. 2217 (emphasis added).
The Supreme Court in Lukumi further explained that even where a law does not expressly require disparate treatment among religious groups, that law may nevertheless lack neutrality and general applicability. Id. The Supreme Court clarified that a law is not neutral "if the object of a law is to infringe upon or restrict practices because of their religious motivation." Id. Additionally, the Lukumi Court explained that a law lacks general applicability "when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation." Id. at 542-43, 113 S.Ct. 2217. Because a law may lack neutrality and general applicability even where it does not expressly discriminate on the basis of religion, Lukumi examined similarly situated comparators to determine whether a facially neutral and generally applicable law targeted religious conduct. Id. at 535-46, 113 S.Ct. 2217. Given the Court's reading of Lighthouse Institute's reliance on Lukumi, as equally implicating the Nondiscrimination Provision, the Court adopts the Third Circuit's general approach but nevertheless does not require Plaintiffs to identify specific comparators given the unique facts pled in the present case.
The facts before the Court better resemble the facially discriminatory application of the ordinance found in Fowler than the facially neutral application found in Lukumi. Similar to Fowler, Defendants interpret the Parking Ordinance as expressly applying a 3:1 ratio to Christian churches but not Muslim mosques. Here, comparators are unnecessary because the Parking Ordinance categorically treats places of worship differently on the basis of religion — there is no need to use comparators to determine whether the Board intended to make that distinction.
Defendants argue that, unlike the government in Fowler, Defendants never "conceded" that they disparately treated ISBR. (Defs.' Opp'n Br. 27.) The Court disagrees. Defendants have made numerous concessions regarding the explicit discriminatory application of the Parking Ordinance. Defendants have conceded, similar to Fowler, that they interpret the Parking Ordinance's 3:1 ratio for "churches" as applying to Christian churches but not Muslim mosques, despite the contrary definition afforded by the Ordinance. (Compl. ¶ 126; Answer ¶ 126.) Accordingly, Defendants' express disparate application of the Parking Ordinance on the basis of religion renders comparators unnecessary.
Even if, arguendo, the Third Circuit required comparators under the facts admitted by Defendants, the Court finds that Plaintiffs' proffered comparators are similarly situated to Plaintiffs. Both Lighthouse Institute and Lukumi explained that the standard for determining whether comparators are similarly situated depends on whether they "impact[] the city's declared goals in the same way" as the plaintiff, and not on whether the comparators "propose[] the same combination of uses." Lighthouse Inst., 510 F.3d at 264-65.
Chabad, B'nai Israel, and Millington (collectively, "proffered comparators") are religious institutions that applied for and received site plan approval in accordance with the Parking Ordinance's 3:1 ratio. The stated objective of the Parking Ordinance is "to provide for parking demand by requiring off-street parking." Bernards Twp. Ord. § 21-22.1a1. Each of the proffered comparators and ISBR are religious institutions whose congregations would generate traffic as a result of religious services. Therefore, the proffered comparators and ISBR similarly impact the Parking Ordinance's policy for providing off-street parking.
Defendants argue that the proffered comparators are dissimilar to Plaintiffs because: (1) their applications predated ISBR's application and the 2010 ITE parking standards; and (2) the comparators were not "mosques," which are treated differently under the Parking Ordinance due to "different traffic patterns, amounts of vehicles[,] and peak demand times." (Defs.' Opp'n Br. 25-26.)
Defendants' argument that the proffered comparators applied for site approval prior to the 2010 ITE parking standards is unpersuasive. Unlike the 2010 ITE parking standards, the Parking Ordinance's 3:1 ratio was already in effect when the proffered comparators applied for their respective site plan approvals. The method by which Defendants treated ISBR's application differently — i.e. by incorporating the 2010 ITE parking standards — is immaterial to determining whether the proffered comparators are similarly situated in relation to the Parking Ordinance.
Defendants also argue that the proffered comparators are not similarly situated because, unlike ISBR's application, the proffered comparators did not propose building Muslim mosques. (Id. at 26.) Notwithstanding
Viewing the pleadings in the light most favorable to Defendants, the Court finds that Defendants discriminatorily applied the Parking Ordinance on the basis of religion. In Fowler, as explained above, the State of Rhode Island conceded that it construed a facially neutral ordinance to permit certain religious services in a public park, but to prohibit meetings for Jehovah's Witnesses. See 345 U.S. at 69, 73 S.Ct. 526. The Supreme Court found that the concession was "fatal" to the State's case because "it plainly show[ed] that a religious service for Jehovah's Witnesses [was] treated differently than a religious service of some other sects." Id. Here, Defendants' interpretation of the Parking Ordinance is similarly fatal because it "amounts to the [Township] preferring some religious groups over [others]." Id.
Defendants' primary argument is that their decision to apply a 3:1 ratio to Christian churches and Jewish synagogues, but not to Muslim mosques, was based on legitimate differences in parking needs — not religion. Defendants base their rationale on an overarching concern that if the Court were to adopt Plaintiffs' interpretation of RLUIPA, it would "eviscerate[] the discretion of local planning boards and local zoning boards." (Oral Arg. Tr. 31:1-8.)
At oral argument, Plaintiffs asserted:
(Id. at 17:4-10.) Here, Plaintiffs' sweeping statement overreaches as to the "whole point of RLUIPA." While RLUIPA limits individualized determinations with regard to land-use regulation over religious institutions, RLUIPA does not entirely remove discretion from local zoning boards. See 146 Cong. Rec. S7,774-01, 2000 WL 1079346, at *S7777 ("It is important to note that RLUIPA does not provide a religious assembly with immunity from
Despite Defendants' well-placed concern, however, the instant matter arises under the Nondiscrimination Provision — not the Substantial Burdens Provision — which specifically targets land use regulations that are "not neutral and generally applicable." Lighthouse Inst., 510 F.3d at 264 (quoting 146 Cong. Rec. S7,774-01, 2000 WL 1079346, at *S7776). Here, Defendants' express discrimination on the basis of religion warrants the highest protection of the Free Exercise Clause, as codified in RLUIPA's Nondiscrimination Provision. Plaintiffs' most compelling claim under the Nondiscrimination Provision, therefore, is not that Defendants engaged in an impermissible individualized inquiry of ISBR, but that Defendants interpreted the Parking Ordinance to expressly distinguish treatment of Christian churches from Muslim mosques.
Defendants fail to recognize this distinction.
To argue that their application of the Parking Ordinance is legitimate, Defendants analyze Plaintiffs' proffered comparators. When determining whether Defendants engaged in impermissible disparate treatment on the basis of religion, the Court must examine "the comparators' relation to the aims of the regulation." Lighthouse Inst., 510 F.3d at 264-65. Where a municipality enforces an ordinance
Here, Defendants attempt to justify the treatment of ISBR's application, as it relates to parking, by asserting that they were striving to accurately determine the parking demand. The undisputed disparate treatment
Defendants further argue that they consistently "consider[] [all] applicants' evidence and documentation regarding parking demand." (Defs.' Opp'n Br. 23.) Defendants note that the Parking Ordinance requires all applicants to submit evidence in support of their applications and requires the Planning Board to base its decision on that evidence. (Id. at 24.) Accordingly, Defendants assert that they based their decision on the evidence ISBR submitted and that the evidence is what demonstrated a parking need greater than the 3:1 ratio set forth in the Parking Ordinance's standard for "churches." (Id. at 24-25, 27-28.) Even assuming, arguendo, that the new traffic data justifies the Board's belief as to why a variance from the 3:1 ratio would be inappropriate for ISBR, it fails to explain the Parking Ordinance's reference to
The alleged accuracy of the ITE parking standards
Under the Nondiscrimination Provision, however, the Third Circuit applies a "strict liability standard" — not a strict scrutiny standard. Lighthouse Inst., 510 F.3d at 268-69. Although focusing on the Equal Terms Provision in Lighthouse Institute, the Third Circuit pointed to its analysis of "substantial burden," which implicated both the Equal Terms and Nondiscrimination Provisions. Id. at 269. In doing so, the Third Circuit reasoned:
Id. (citing Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983)). The Court accordingly applies strict liability and does not consider Defendants' proffered justifications for its discriminatory application of the Parking Ordinance.
Finally, Defendants argue that they did not intend to treat ISBR's application differently on the basis that ISBR's congregation is Islamic. (Defs.' Opp'n Br. 23.) Defendants seem to be making a hyper-technical and immaterial argument. Even if Defendants did not intend to make a discriminatory decision based on the religious denomination of ISBR's congregation, as opposed to the religious denomination of the structure, Defendants unambiguously treated ISBR's application to build a Muslim mosque differently than applications for Christian churches and Jewish synagogues. Regardless of whether the intent focused on the denomination of the structure being built or the denomination of the congregation, the focus of the intent inquiry remains the disparate application of the Parking Ordinance based on religious affiliation. As established above, Defendants' application of the Parking Ordinance reflects sufficient intent to discriminate on the basis of religion.
For these reasons, the Court grants Plaintiffs' Motion for Partial Judgment on
"[B]oth the Federal and [New Jersey] Constitutions render vague laws unenforceable." New Jersey v. Cameron, 100 N.J. 586, 498 A.2d 1217, 1219 (1985). "[A] law that is challenged for facial vagueness is one that is assertedly impermissibly vague on all its applications." Id. at 1221; see also Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. 1186. To establish that a law is impermissibly vague under the Federal and New Jersey Constitutions, the law: (1) must fail to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly"; or (2) "if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them." Trade Waste Mgmt. Ass'n v. Hughey, 780 F.2d 221, 235 (3d Cir. 1985) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)); Cameron, 498 A.2d at 1219-20 (identifying the standards of vagueness under the Federal Constitution as shared by the New Jersey Constitution and relying heavily on the U.S. Supreme Court's analysis in Hoffman Estates). Here, only the second criterion is applicable because the Parking Ordinance does not make any act unlawful, as required under the first criterion. See Trade Waste Mgmt. Ass'n, 780 F.2d at 235.
The rationale for the second criterion is to prevent ad hoc and subjective resolution of policy matters "with the attendant dangers of arbitrary and discriminatory applications." Hoffman Estates, 455 U.S. at 498, 102 S.Ct. 1186 (quoting Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294). "These standards should not, of course, be mechanically applied." Id. "In a facial challenge to the ... vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Id. at 494, 102 S.Ct. 1186; Cameron, 498 A.2d at1220.
Specifically, in the context of zoning ordinances, "a municipality can exercise its general police powers to deal with the problems of traffic, parking, noise, constant activity, overcrowding, and the like so that the character of the residential neighborhood is preserved."
Here, the Parking Ordinance states:
Bernards Twp. Ord. § 21-22.1 (emphasis added). Plaintiffs challenge the vagueness of the italicized portions. (Pls.' Moving Br. 4.) The Parking Ordinance further provides that the parking requirement for "[c]hurches, auditoriums, [and] theaters [is:] [one] space for every [three] seats or [one] space for every [twenty-four] linear inches of pew space." Bernards Twp. Ord. § 21-22.1. Additionally, the applicable section of the Township Ordinance states: "[a]ny word or term not defined herein shall be used with a meaning as defined in Webster's Third New International Dictionary of the English Language, unabridged (or latest edition)." Township. Ord. § 21-2.
In evaluating a facial challenge, the Court first considers a defendant's limiting construction of the challenged ordinance. See Hoffman Estates, 455 U.S. at 495 n.5, 102 S.Ct. 1186 ("In evaluating a facial challenge to a state law, a Federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered."). Defendants, however, fail to provide any limiting construction and instead argue that the challenged provisions are plainly sufficient under the Federal and New Jersey Constitutions. According to Defendants, the schedule of enumerated standards, which includes the 3:1 ratio applied to "churches," provides sufficient standards of enforcement. (Defs.' Opp'n Br. 33.) Similarly, Defendants argue that the Parking Ordinance requires Defendants to base their decision on applicants' documentation and testimony in support of their applications. (Id. at 33-34.) Defendants also argue that the schedule need not include parking ratios for every conceivable use and that the Parking Ordinance does not include "mosques" in its schedule. (Id.)
Based on the pleadings and Defendants' admission to the Webster's Dictionary's definition of "church," the Court finds that the Parking Ordinance includes ISBR's proposed use and that the 3:1 ratio applies to ISBR's application. The Township's Ordinance expressly incorporates Webster's Dictionary's definitions to all terms not separately defined in the Ordinance, and "churches" is not separately defined. Bernards Twp. Ord. § 21-2. Defendants' insistence that the 3:1 ratio for "churches" does not apply to mosques is not supported by any elaboration or further explanation in Defendants' Answer or Opposition Brief. The mere fact that Defendants incorrectly believe that the Parking Ordinance's 3:1 ratio excludes mosques does not render the Parking Ordinance impermissibly vague.
Next, in light of the more stringent vagueness challenge applicable where an ordinance implicates constitutional rights, the Court separates the Parking Ordinance into two parts. First, the Parking Ordinance performs purely economic regulation to the extent that it regulates off-street parking demands for residential, commercial, industrial, and non-religious institutional uses. The purely economic nature of this section of the Parking Ordinance warrants a more lenient standard for vagueness.
Plaintiffs' vagueness claims, however, arise from the challenged provisions' application to "churches," which implicates the constitutional right of the Free Exercise of religion. The Court, therefore, must apply a more stringent test for vagueness. Here, the Parking Ordinance fails to provide sufficiently explicit criteria such that discriminatory ad hoc enforcement at the expense of the First Amendment could be prevented. Defendants' inability to proffer a limiting construction of the discretionary provisions in their opposition is indicative of the fact that none exists. Defendants merely restate the various provisions in the Ordinance and proffer conclusory arguments that the stated provisions provide sufficient standards. Accordingly, the Court finds the challenged provisions unconstitutionally vague as they relate to "churches."
The fact that the Planning Board must base its decision on the documentation and testimony presented by the applicant does not limit the Board's ability to enforce the Parking Ordinance in an arbitrary and discriminatory
Moreover, the Parking Ordinance does not limit the Board's ability to dictate the documentation and testimony that an applicant submits. Absent explicit standards, this further provides the Board with the ability to manipulate the evidence in the record because the Board can require the submission of specific evidence and then possesses the unlimited discretion to pick and choose what evidence it considers. Here, the Board argues that it was permitted to consider the ITE parking standards because Plaintiffs presented evidence on those standards. (Defs.' Opp'n Br. 36.) Defendants argue that this example, of having to make its decisions on evidence presented by Plaintiffs, demonstrates how the Parking Ordinance limits the Board's discretion. (Id.) Defendants admit, however, that Plaintiffs submitted evidence of ITE's Parking Generation report "[a]t the Board's request." (Compl. ¶ 140; Answer ¶ 140.) The Board's ability to request particular evidence under the Parking Ordinance, therefore, further trivializes any limitation on discretion imposed by the procedure for considering an applicant's evidence.
Next, the Parking Ordinance provides a 3:1 ratio for "churches[']" parking needs, stating that the ratio "represents [a] standard[] acceptable to the Township." Bernards Twp. Ord. § 21-22.1a1. Defendants argue that the 3:1 ratio constitutes a sufficient objective criterion for enforcement of the Parking Ordinance. (Defs.' Opp'n Br. 33.) The Board, however, possesses unbridled discretion to disregard the 3:1 ratio. The Parking Ordinance contains no indication for: (1) how and when the Board should alter the parking requirement; (2) what factors the Board considers; (3) how the Board weighs such factors against each other; or (4) any other objective means to determine a different parking requirement. The Parking Ordinance merely states that the purpose of altering the 3:1 ratio for a particular applicant must be "to ensure that the parking demand will be accommodated by off-street spaces." Bernards Twp. Ord. § 21-22.1a1(b). The Parking Ordinance, therefore, fails to provide sufficient objective guidelines for determining how many parking spaces the Board may require for any given applicant.
The Court further finds Plaintiffs' reliance on Cunney v. Board of Trustees of Village of Grand View, N.Y.,
Here, the Parking Ordinance's initial ratios are similarly rendered moot by the Board's blanket authority to change the requirement without abiding by any explicit standards. The lack of standards is further exemplified by the inconsistent methodologies applied by the Board. Additionally, the unbridled discretion afforded to the Board fails to comport with the Board's alleged purpose of precisely measuring parking demands. Defendants accordingly fail to identify any method by which an applicant would be able to predict the number of parking spaces the Board would require.
Similarly, in Bykofsky,
In contrast, the court upheld provisions in the ordinance permitting minors to be on the streets during the curfew time period "in a case of `reasonable necessity.'" Id. at 1249. The court explained that "reasonableness" was a well-defined legal standard, which was heavily applied to the Fourth Amendment, jury instructions, and numerous other contexts. Id. The court similarly noted that "necessity" was well defined in Supreme Court decisions and that, juxtaposed with the clear definition of
Here, the Parking Ordinance provides no such guidance as to whether a site plan provides for sufficient off-street parking, and leaves the Planning Board to its own predilections and beliefs. While Defendants cite to the general importance of "flexibility" in ordinances, they fail to explain why the particular unlimited flexibility they seek in the Parking Ordinance is necessary.
In sum, Defendants identify three limitations on the Board's discretion: (1) the requirement to base its decisions on documentation and testimony submitted by applicants; (2) the 3:1 ratio listed in the schedule of parking standards; and (3) the express goal of requiring sufficient off-street parking. Separately, at first glance, these distinct provisions seem to limit the Board's authority and discretion. Viewed together, however, the Parking Ordinance unambiguously provides the Planning Board with unbridled and unconstitutional discretion. See Cong. Rec. S7, 774-01 (documenting legislative history of RLUIPA and stating that when land use "codes permit churches only with individualized permission from the zoning board, ... [the] zoning boards [can] use that authority in discriminatory ways").
Specifically, the Parking Ordinance allows the Board to require additional parking spaces without having to abide by any specific guidelines as to what constitutes sufficient off-street parking. The Court, therefore, finds the challenged provisions unconstitutionally vague under the United States and New Jersey Constitutions, as applied to "churches."
Given the Court's finding of unconstitutionality, the Court looks to Bernards Township Ordinance § 21-1.3, which states:
The Court leaves intact the remainder of the Parking Ordinance, including the 3:1 ratio applicable to "churches," which includes mosques.
For the reasons set forth above, Plaintiffs' Motion for Partial Judgment on the Pleadings, as to Counts Three (only as to the issue of parking), Eight, and Ten, is
