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41034.00103-HBM/LEGAL/LEGAL/105477085.v1MARSHALL DENNEHEY WARNER COLEMAN & GOGGINHoward B. Mankoff, Attorney No. 021971981425 Eagle Rock Avenue, Suite 302Roseland, NJ 07068973-618-4100 973-618-0685 hbmankoff@mdwcg.comATTORNEYS 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 COURTFOR 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
CASE NO.: 3:16-CV-01369-MAS-LHG
Civil Action
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
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 ………………………………………………………………………………………………………………………iTABLE OF AUTHORITIES ……………………………………………………………………………………ii, iii, iv
PRELIMINARY STATEMENT………………………………………………………………………………………………………………1
STATEMENT OF FACTS………………………………………………………………………………………………………………………4
LEGAL ARGUMENT………………………………………………………………………………………………………………………………16
POINT IStandard for judgment on the pleadings…………………………………………………16
POINT IIPlaintiffs failed to establish that the board's parking determination violated RLUIPA's non-descrimination provision, 42 U.S.C. § 2000CC(B)(2)………16
POINT IIITownship 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
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
1
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,
2
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
3
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
4
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 1 Even at the very first hearing, Plaintiffs' counsel raised RLUIPA and the unwarranted threat of a discrimination claim when the Planning Board asked legitimate questions about parking and the number of congregants anticipated. (See August 2012 transcript attached as Exhibit "A," p. 41-45; September 2012 transcript attached as Exhibit "B," p. 61)
5
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.
6
(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
2 Plaintiffs acknowledge that Mr. Ney's sources included the ITE's Parking Generations, 4th edition, which resulted in an estimate of 110 spaces. (ECF No. 30, p. 7).
7
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). 3 This Court can take judicial notice of the ITE 2010 revised parking standards, Parking Generation, 4th edition which are facts "not subject to reasonable dispute," because they "(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." See Fed.R.C.P. 201. Mr. Ney, plaintiff’s own expert, and other experts acknowledged that the ITE standards are authoritative, they are cited in the Drill/Banisch memo [ECF. No. 31-3], the Board utilized these standards in analyzing the parking requirements, and ITE standards have been accepted in the New Jersey courts as a recognized and reliable and authoritative source of data regarding traffic generation. (See portions of Parking Generation, 4th edition attached as Exhibit "C"); see also Kode Harbor Dev. Assoc. v. Atlantic County, 230 N.J. Super. 430, 436 (App. Div. 1989). The ITE provides under "Land Use: 562 Mosque" that average peak parking demand is on Friday, which at the 85th
percentile is 25.79 vehicles per 1,000 sq. ft gross floor area. (Exhibit A, p. 165). "Land Use: 560 Church" describes average peak parking demand on a Sunday, at the 85% percentile at 14.38 vehicles per 1,000 sq. ft. and .25 vehicles per seat, which is similar to the 3:1 ratio in the Ordinance regarding "churches." (Id., p. 159-161.) 4 An authoritative text is admissible in its own right. Jacober v. St. Peter’s Medical Center, 128 N.J. 475, 496 (1991).
8
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).
As the Drill/Banisch memo states, "all houses of worship are
treated the same under ordinance section 21-22.a.1 in that the
same requirement is applied to all house of worship applicants,
indeed for all uses in the Township. Specifically, the ordinance
requirement is submission of documentation and testimony by all
applicants for any and all uses proposed in the Township as to
the anticipated parking demand." (Id., p. 6 n. 6). Therefore,
the only thing shown by the evidence, is that the Board treated
ISBR the same as it would any house of worship under the
Ordinance, by appropriately considering the documentation and
testimony, including the current 2010 ITE standards specific to
9
traffic patterns relating to churches, mosques and synagogues.5
The 3:1 standard for “churches” is based on the average number of
people per car travelling to Sunday mass. By Plaintiffs' own
testimony, congregants attending the Friday afternoon service
would be coming from work, including Verizon, Verizon Wireless,
U.S. Healthcare, and “other companies that are here” (August
2012 Transcript, p. l44). Therefore, the underlying assumption
of three congregants per car would not apply per Plaintiffs' own
admission.
ISBR Traffic Engineer Ney collected additional parking data
and from January 2013 to June 2013, ISBR presented supplemental
parking studies and testimony that applying the ITE methodology
resulted in 70 parking spaces for ISBR. (ECF No. 15, ¶ 146). The
Board conducted a legitimate inquiry into the anticipated parking
demand as required by the Ordinance and nothing suggests that its
questioning was "designed to elicit higher numbers" as Plaintiffs
claim, rather than accurate parking numbers. (See ECF No 30, p.
9). The Board was free to question Mr. Ney about all relevant
issues, including the 100th percentile data in examining the
parking issue, and in any event, applied an analysis using less
than 100%. On June 4, 2013, the Board voted on ISBR's parking
5 The Board was aware that ISBR argued that certain parts of the Ordinance might be unconstitutional, not that it was (allegedly) unconstitutional, and the Drill/Banisch memo noted this was not the correct forum to argue its legality and the Board could not simply ignore the Ordinance. (ECF No. 31-3, p. 4).
10
requirement and its decision to require 107 parking spaces was
not an act of discrimination based upon religious faith, but one
of proper planning based upon the evidence and authoritative
traffic engineering standards.6
III. THE ISBR'S FAILURE TO PRESENT A DETAILED, CONFORMING SITE PLAN
The Board's decision requiring 107 spaces did not lay
"ground work" for the Board to deny ISBR preliminary and final
site plan approval. (ECF No. 15, ¶ 152). The 107 spaces required
meant an increase in pavement / impervious coverage and other
considerations, and ISBR worked to resolve the Board's drainage
concerns. (Id., ¶ 155). While ISBR submitted a revised plan with
107 parking spaces, a fully coordinated plan containing the
details required of a final site plan was never submitted, and
the plans that were submitted lacked the detail required. (Id., ¶
169).
Ultimately, the Board denied final approval because the plan
did not have sufficient details and for the specific issues
described in the Resolution. (Id., ¶ 171). Plaintiffs never
satisfied the required site plan standards during the subsequent
and extended hearings, stemming from the failure of the
6 The objectors' expert Mr. Litwornia presented a recommendation based upon a different metric of 107 parking spaces. (ECF No. 15, ¶ 149). The Board adopted a recommendation of 107 parking spaces, but not Mr. Litwornia's position in full. (Id., ¶ 150).
11
Plaintiffs' professionals to adequately address the issues that
the Board identified.
IV. THE BOARD'S RESOLUTION DENYING ISBR'S APPLICATION
On December 8, 2015 the Board voted to deny Plaintiffs'
application and the Resolution was adopted on January 19, 2016.
(See ECF No. 15-1). The reasons for the denial of both
preliminary approval and final approval are stated in the
Resolution. (Id.) Contrary to Plaintiffs’ false allegations of
discriminatory animus and intent, the Board's rationale was based
on the merits and as summarized in the April Resolution (but
detailed in the Resolution) those reasons were:
(1) the Board could not “specifically approve” as required by the site plan ordinance the proposed 7,500 square foot detention basin wholly within the 50-foot wide buffer because allowing such a large drainage improvement wholly within the buffer represents the exception swallowing the rule and defeats the very purpose of the buffer;
(2) the applicant failed to prove compliance with all of the landscaping requirements and fencing regulations established in the ordinance;
(3) contrary to ordinance requirements, the applicant failed to design internal traffic circulation to minimize the use of aisles serving parking area and the internal circulation system will not be able to handle access and circulation of fire trucks due to the parking lot aisle widths adjacent to the 90 degree parking stalls on the easterly side and westerly side of the site as well as to the rear
12
of the building being 24 feet wide, where the ordinance required them to be 26 feet wide, and the parking lot aisle adjacent to the westerly side of the building leading to the parking lot to the rear of the building being as narrow as 20 feet, where the ordinance requires parking lot aisles adjacent to any building to provide a travel lane with a minimum 24 feet clear width; and,
(4) ordinance compliant Stormwater drainage plans were not submitted to the Board for approval.
(ECF No. 26-1 ("April Resolution"), p. 2).
Critically, the Board recognized that while Plaintiffs
failed to provide a viable site plan compliant with the Township
site plan ordinance standards to date, there was nothing about
the property which would make it impossible for Plaintiffs to do
so. (Id., p. 1-2). However, Plaintiffs are determined to
litigate their false accusations of discriminatory treatment
rather than follow the process to obtain site plan approval.
V. APPLICATIONS BY PRIOR HOUSES OF WORSHIP PRE-DATED THE ISBR'S APPLICATION AND ITE'S 2010 REVISED PARKING GENERATION MANUAL, 4TH EDITION
Plaintiffs argue that the Board never applied the parking
standards utilized for ISBR's application to any other houses of
worship, which were instead subject to the 3:1 ratio. However, as
Defendants' Answer specifies, all of the applications that
Plaintiffs cite, pre-date the ISBR's 2012 application and 2010
ITE revised parking standards; the Millington Baptist Church
13
applied in 1999, the Chabad Jewish Center in 1995 and the
Congregation B'nai Israel in 1993. (ECF. No. 15, Id., ¶¶ 127,
139).7 Plaintiffs argue without citing any evidence, that no
"individualized analysis" was performed as to these other houses
of worship, and then contradict themselves by conceding that
Congregation B'nai Israel was given "downward relief" from the
3:1 ratio. The record shows that the Ordinance was applied
uniformly to all houses of worship including the ISBR, based upon
the traffic engineering standards at the time and evidence
presented to the Board.
VI. AMENDMENT OF THE ORDINANCE AND "APRIL RESOLUTION"
At the time of Plaintiffs’ initial application, houses of
worship were a permitted use in the R-2 zone. Subsequently, the
Bernards Township Committee, consistent with modern zoning norms,
amended the zoning ordinances to make houses of worship a
conditionally permitted use, knowing that the amended ordinance
7 Contrary to Plaintiff's Motion, Defendants denied that Board Planner David Banisch agreed that the proposal satisfied the Ordinance and noted that Banisch recommended an increase in the number of parking spaces at a later date. (ECF. No. 15, ¶ 129). While Defendants agreed that "Mr. Banisch issued a new parking memo on October 25, 2012," they deny, contrary to Plaintiffs' assertion, that Mr. Banisch ever conceded that 50 or 56 parking spaces were sufficient. (Id., ¶ 136). Defendants also did not "admit" that Township Planner David Schley did not advise of Township of the need for relief from the Ordinance; Defendants' Answer only admits "that in a letter dated August 3, 2012, David Schley noted the ISBR proposal included 50 parking spaces." (Id., ¶ 130).
14
would not apply to the application at issue. In a good-faith
effort to give the Plaintiffs every opportunity to resolve the
dispute by way of settlement, the Board passed the April
Resolution to extend the time to seek “rehearing.” (See ECF No.
26-1).
The April Resolution also detailed the history of the
application and its denial, and noted that a majority of the
Board members who voted on the application were on record as
either (1) favoring the application subject to the imposition of
conditions which would address the reasons for the denial or (2)
against the application but willing to vote for site plan
approval if changes addressing the reasons for denial were
implemented and a resubmission of site plans were made. (Id., at
p. 2). At the time of this writing, the Plaintiffs have chosen
not to resolve the dispute and to obtain the approval they
allegedly desire, but rather seek to quash the Resolution. (ECF
No. 26 ("Mot. to Quash").
LEGAL ARGUMENT
I. STANDARD FOR JUDGMENT ON THE PLEADINGS
A motion may be made for judgment on the pleadings in
accordance with Fed. R. Civ. P. 12(c) "[a]fter the pleadings are
closed—but early enough not to delay trial." Navigators
Specialty Ins. v. PharmaNet Dev. Grp., Inc., 2016 U.S. Dist.
15
LEXIS 40999, 4-5 (D.N.J. Mar. 29, 2016)(quoting Fed. R. Civ. P.
12(c)). The movant under Rule 12(c) "must show clearly that no
material issue of fact exists and that it is entitled to judgment
as a matter of law." Habayeb v. Butler, 2016 U.S. Dist. LEXIS
41866 (D.N.J. Mar. 29, 2016). In considering such a motion, the
court must view the facts alleged in the pleadings as true and
draw any inferences therefrom in the light most favorable to the
non-movant. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220
(3d Cir. 2005).
II. PLAINTIFFS FAILED TO ESTABLISH THAT THE BOARD'S PARKING DETERMINATION VIOLATED RLUIPA'S NON-DISCRIMINATION PROVISION, 42 U.S.C. § 2000CC(B)(2)
Plaintiffs are unable to establish that the Board's parking
determination as to the proposed mosque's parking requirement,
violated RLUIPA's non-discrimination provision. Plaintiffs'
Motion is based upon abject mischaracterization of Defendants'
Answer and as nonmovants, Defendants' Answer must be read in the
light most favorable to Defendants. Plaintiffs Motion is not
supported by the law, and fails to raise any genuine issue of
material fact as to their claims, much less show that "no
material issue of fact remains" such that they are entitled to
partial judgment on the pleadings. See Miles v. Lansdowne
Borough, 2012 U.S. Dist. LEXIS 169338, *24-25 (E.D. Pa. Nov. 29,
16
2012)( failure to raise genuine factual issue that non-
discrimination clause was violated).
A. RLUIPA's non-discrimination provision, 42 U.S.C. § 2000cc(b)(2)
The Religious Land Use and Institutionalized Persons Act of
2000 ("RLUIPA"), 42 U.S.C. § 2000cc et seq., was enacted to
protect religious institutions and the religious rights of
institutionalized persons from "government imposed burden." See
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510
F.3d 253, 261 (3d Cir. 2007)("Lighthouse II")(quoting Cutter v.
Wilkinson, 544 U.S. 709, 714 (2005)). RLUIPA does not allow a
religious institution to operate "wherever it so chooses, without
regard for zoning rules" and such a position is "simply
unreasonable and not supported by the statute or by the First
Amendment." See Christian Methodist Episcopal Church v.
Montgomery, 2007 U.S. Dist. LEXIS 5133, 30-31 (D.S.C. Jan. 18,
2007). Indeed, "[s]o long as a municipality applies its codes
uniformly and does not impose an unjustified substantial burden
on religious exercise, it may apply traditional zoning concerns –
such as regulations addressing traffic, hours of use, parking,
maximum capacity, intensity of use, setbacks, frontage – to
religious uses just as they are applied to any other land uses.”
Statement of the Department of Justice on the Land-Use Provisions
17
of the Religious Land Use and Institutionalized Persons Act
(RLUIPA, (December 2010), p. 3-4.
RLUIPA's non-discrimination provision at section 2000cc(b)
(2),"prohibits land-use regulations that disfavor religious uses
relative to nonreligious uses." Albanian Associated Fund v. Twp.
of Wayne, 2007 U.S. Dist. LEXIS 73176, 18-19 (D.N.J. Oct. 1,
2007)(quoting Lighthouse, 406 F. Supp. 2d 507, 514 (D.N.J.
2005)). Section 2000cc(b)provides in relevant part:
§ 2000cc. Protection of land use as religious exercise * * *(b) Discrimination and exclusion. (1) Equal terms. No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution. (2) Nondiscrimination. No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination. (3) Exclusions and limits. No government shall impose or implement a land use regulation that-- (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.
42 U.S.C. § 2000cc(b)(2)(emphasis added). A plaintiff must
show that: (1) it is an assembly or institution, (2) it is
subject to a land use regulation, (3) which has been imposed or
implemented in a manner that discriminates on the basis of
18
religion. See 42 U.S.C. § 2000cc(b)(2); Al Falah Ctr. v. Twp. of
Bridgewater, 2013 U.S. Dist. LEXIS 190076, *41 (D.N.J. Sept. 30,
2013). Plaintiffs have plainly failed to show that that they were
discriminated against by the imposition or implementation of a
land use regulation on the basis of religion or to otherwise
state a viable RLUIPA claim.
Case law on the non-discrimination provision is sparse in
the Third Circuit and other circuits and no standard has been
universally adopted in considering a nondiscrimination claim. The
Third Circuit "appears to treat" the equal terms and non-
discrimination subsections "as both incorporating the "similarly
situated" analysis." Albanian Associated, at *31-32 (emphasis
added), citing Lighthouse II, supra and Lighthouse Institute for
Evangelism v. City of Long Branch, 100 Fed. Appx. 70, 77 (3d Cir.
2004)("Lighthouse I"). In Lighthouse I, the Third Circuit held
that the religious entity "did not show a likelihood of success
on its non-discrimination because there was no indication on the
face of the statute that any distinction is drawn between
religious and secular assembly halls (or in any other category)"
and the plaintiff did not produce any other evidence to suggest
that the City had interpreted the ordinance as such. Lighthouse
I, at 77. Lighthouse II construed the "Equal Terms" provision to
"include neither a substantial burden nor a strict scrutiny
requirement," but to require "that the plaintiff show that it was
19
treated less well than a nonreligious comparator that had an
equivalent negative impact on the aims of the land-use
regulation," i.e., identification of a better-treated secular
comparator that is similarly situated in regard to the objectives
of the challenged regulation. Lighthouse II, 510 F.3d at 268,
270. The "Equal Terms" provision was construed to include
neither a substantial burden nor a strict scrutiny requirement,
but rather for the plaintiff to show "that it was treated less
well than a nonreligious comparator that had an equivalent
negative impact on the aims of the land-use regulation."
Lighthouse II, 510 F.3d at 264, 270.
Therefore, based upon Lighthouse I and II and district court
decisions like Albanian, the courts in the Third Circuit require
plaintiffs to provide evidence of a sufficient comparator
"similarly situated in regard to the objectives of the challenged
regulation" in order to prove discriminatory treatment. Id.; see
Albanian, at *33-34(where plaintiff identified similarly situated
applicant treated differently, a catholic hospital permitted to
develop land deemed environmentally sensitive, summary judgment
for defendant on the nondiscrimination claim was denied, and it
was for the fact- finder to analyze the township's intent to
determine if their actions were discriminatory.).
The Second Circuit, one of the few courts examining the
nondiscrimination provision, held that establishing a claim under
20
this clause requires evidence of a discriminatory intent. Chabad
Lubavitch of Litchfield County, Inc. v. Litchfield Historic Dist.
Comm'n, 768 F.3d 183, 198 (2d Cir. 2014)(stating that "the plain
text of the provision makes clear that, unlike the substantial
burden and equal terms provisions, evidence of discriminatory
intent is required to establish a claim."). The Court opined
that analysis of a nondiscrimination claim requires a "sensitive
inquiry into such circumstantial and direct evidence of intent as
may be available." 768 F.3d at 199 (quoting Village of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (U.S.
1977)). The Eleventh Circuit has identified three kinds of
statutory equal protection/nondiscrimination violations including
"a truly neutral statute that is selectively enforced against one
religious denomination as opposed to another." Church of
Scientology of Ga., Inc. v. City of Sandy Springs, 843 F. Supp.
2d 1328, 1360-1361 (N.D. Ga. 2012)(denying summary judgment on
non-discrimination claim based upon factual issues).
Finally, contrary to Plaintiffs' Motion, there is no
provision in 42 U.S.C. § 2000cc(b)(2)itself switching the burden
of proof to the government after the plaintiff makes out a prima
facie case under RLUIPA. (See ECF No. 30, p. 14).8 Nor does
Plaintiff cite any cases to show that the Third Circuit has 8 The Second Circuit has opined that "the plaintiff bears the initial burden of establishing a prima facie claim, after which the government bears the burden of persuasion on the elements of the nondiscrimination claim." Chabad Lubavitch, 768 F.3d at 198.
21
adopted a burden-shifting framework for RLUIPA nondiscrimination
claims.
B. Plaintiffs are unable to demonstrate any religious discrimination or discriminatory intent by the Board
Plaintiffs claim that the parking Ordinance was selectively
enforced and that Defendants' Answer admitted that the ISBR was
treated differently from other houses of worship.
First, Defendants did not make any such "admission," having
actually responded: "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 standard did not exist at the time." (ECF
No. 15 ("Answer"), ¶ 127)(emphasis added). Defendants' statement
was therefore qualified by the explanation that the current 2010
ITE parking standards were not in existence - thus could not be
applied - at the time that the other houses of worship cited by
Plaintiffs applied to the Board. Defendants' Answer also in no
way "admitted" that the ISBR was subjected to a "novel,
individualized parking requirement" because it was an Islamic
congregation, nor is there any evidence that the 3:1 ratio was
applied to the churches and synagogue without the Board also
considering the applicants' evidence and documentation regarding
parking demand.
22
Second, Plaintiffs provide no direct or circumstantial
evidence of discrimination or intent to treat the mosque
differently from the other houses of worship. Defendants did not
discriminate against the ISBR on the basis that it is an Islamic
congregation. The evidence shows that the Board treated all of
the houses of worship the same in accordance with the standards
in effect at the time. The ITE standards were not plucked from
some obscure source - they are objective, established traffic
engineering standards considered to be a reliable and
authoritative source by traffic engineers, including Plaintiff's
expert Mr. Ney, and by the New Jersey courts. Plaintiffs argue
disparate treatment because of their religion, but the ITE
standards are based upon the traffic patterns associated with the
specific use - not the religious faith. The ITE standards were
updated in 2010 in order to allow greater accuracy in determining
parking requirements, and would be applied to any mosque, church
or synagogue after that date. The mere fact that the ITE
standards resulted in Plaintiffs having to provide more parking
than if a 3:1 ratio was applied, does not establish that the
Board treated their religious activity any differently from that
of the earlier applicant houses of worship.
Third, the record shows that Defendants treated all houses
of worship alike in applying the Ordinance and determining the
parking requirements for each use. The Board's process in
23
applying Ordinance 21-22.1 is succinctly explained in the
Resolution as follows:
The Board notes that it formally voted during the June 4, 2013 hearing session on a motion to establish the number of parking spaces in accordance with ordinance section 21-22.1 which provides that, "since a specific use may generate a parking demand different from those enumerated below, documentation and testimony shall be presented to the Board as to the anticipated parking demand." The ordinance continues: "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 number of spaces in the future, or (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. 15, Resolution, p. 14 n. 4). Under the Ordinance,
mosques, churches and synagogues, and indeed applicants for any
use, are all required to present evidence of anticipated parking
demand. As to the ISBR's application and specific use, the Board
specified that it heard testimony from the ISBR's traffic
engineering expert Mr. Ney that the number of occupants should be
divided by a factor of l.35 to establish the number of spaces,
and objector BTCRD's expert traffic engineer Alexander Litwornia,
PE that the number of occupants should be divided by a factor of
1.4 to establish the number of spaces. (Id.). Ultimately, the
Board gave more weight to Mr. Litwomia's opinion due to "the
24
strengths and weaknesses of their analyses" and decided that the
required number of parking spaces was 107. (Id.).9 It is the
Board's prerogative to credit or discredit the expert opinions.
TSI E. Brunswick v. E. Brunswick Board of Adjustment, 215 N.J.
26, 46 (2013). At all times the applicant bears the burden of
proof on its application, and if the burden is not sustained the
board has no choice but to deny the application. Toll Bros, Inc.
v. Burlington County Freeholders, 194 N.J. 223, 255 (2008)
(quoting Cox and Koenig, New Jersey Zoning and Land Use
Administration (Gann 2015), section 18-4.1, p. 365).
Finally, in this circuit, Plaintiffs' nondiscrimination
claim based upon selective application of the Ordinance requires
proof that Plaintiffs were treated less well than religious
comparators similarly situated in regard to the objectives of the
Ordinance. Lighthouse II, supra. The objectives of Ordinance 21-
22.1 are to "provide for parking demand by requiring off-street
parking," the development plan must show the total number of off-
street parking spaces required for the use/combined use in the
application, and the Ordinance recognizes that a specific use may
generate a parking demand different from the schedule thus
requires testimony and documentation as to the anticipated
parking demand. (ECF No. 31-2, p. 1). Plaintiffs did not show
sufficiently similarly situated comparators with regard to the 9 These figures reflect a maximum occupancy of 150, as determined by the applicant's architectural expert Daniel Lincoln. (Id.).
25
objectives of the Ordinance to ascertain parking requirement
based upon parking demand. The three religious entitys'
applications all pre-date the ISBR's 2012 application and 2010
revised ITE parking standards, therefore cannot be similarly
situated in regard to the objectives of the Ordinance. In
addition, the two churches are not similarly situated because the
3:1 ratio was applicable to the two churches at the time because
it was specified in the Ordinance schedule for "churches," and
the churches would also have different traffic patterns, amounts
of vehicles and peak demand times. The synagogue is not similarly
situated because it would also have different traffic patterns
and parking demands than the proposed mosque, and the parking
requirements under a 3:1 ratio were adjusted downwards for the
synagogue.
There is also no evidence that the Board performed a
discriminatory individualized assessment as to the proposed
mosque. The purpose of the Ordinance is to accurately assess the
parking demand as to each specific use - religious or non-
religious - so that an adequate number of off-street parking
spaces can be determined. Applying the Ordinance to all houses
of worship evenhandedly does not mean that the same ratio of
parking spaces to worshippers will result, when the actual
parking demand for each use is shown to be different. The Board's
application of the Ordinance was evenhanded and Plaintiffs are
26
unable to establish a claim under RLUIPA's nondiscrimination
provision.
Plaintiffs cite to Hassan v. City of New York, 804 F.3d 277,
297 (3d Cir. 2015) which is inapposite as it does not involve the
application of zoning ordinances. Plaintiffs also rely upon
Fowler v. Rhode Island, 345 U.S. 67, 69 (U.S. 1953) in which the
government conceded that a religious service of Jehovah's
Witnesses was treated differently than other sects. Here there is
no such "concession" and no evidence of disparate treatment by
Defendants of one religion over another. The Board simply
considered objective engineering standards recognizing that a
specific use of the property - regardless of how that use is
labeled - generates additional vehicles. This is not
discrimination. There is also no evidence that the ISBR would
have been subject to a different or more favorable parking space
requirement had it been a different type of religious entity;
both the schedule in the Ordinance and the ITE standards are
guidelines, and the Board's decision was based upon the evidence
of the anticipated parking demand and considerations explained in
the Resolution.
Plaintiffs argue that proof of an invidious motive is not
necessary, citing Hassan, supra, 804 F.3d 277, 297-298 (3d Cir.
2015). However, even if, arguendo, the "motive" equation is
removed from the analysis, Plaintiffs have not shown an intent to
27
discriminate, or that the Board desired a result whereby a mosque
would be treated unequally because it is a mosque. The record
shows that Defendants did not single out the ISBR because of its
religious affiliation, but rather applied objective principles of
traffic engineering from an authoritative source which considered
the difference between use of property as churches, mosques and
synagogues and their associated traffic patterns. The standard
was not applied strictly or arbitrarily, and ISBR was also
invited to present additional evidence and studies as to their
parking requirements. The Board treated ISBR as it would any
house of worship or "use" under the Ordinance, by considering the
documentation, testimony and evidence, which included the
current, authoritative and use- specific ITE standards. The
Board’s decision to require 107 parking spaces was not an act of
discrimination, but one of proper planning. Allowing 107 spaces
even at the cost of more impervious cover and detriment to the
environment actually permitted a dramatic increase in the
intensity and ability of the applicant to worship as its
congregation grew or expanded. Had the Board accepted the initial
calculation of 50 or 56 parking spaces as proposed by plaintiff,
worship would have been inherently limited in perpetuity by the
50 or 56 spaces because of the unavailability of parking on the
County Road and in the surrounding neighborhood. Once the lot was
full, other congregants would have to turn away or,
28
alternatively, arrange for a cumbersome shuttle service.
Plaintiffs presented conflicting and inadequate testimony which
made it difficult to ascertain the size of the congregation. They
initially testified that parking and the fire code would limit
the size of the congregation and they would turn congregants away
if the parking lot was full. (September 4, 2012, p. 85-87).
Plaintiffs subsequently testified that congregants could park
offsite, but could not identify where. (Id., p. 60-63, 65, 72).
Plaintiffs also testified that they could hold additional
services or would use other rooms in the house of worship. (Id.,
p. 46, 86).10
In addition, impervious cover and intensity of worship would
have decreased - with 50 less parking spaces - to the benefit of
the neighbors. The Board did not do this and plaintiffs provide
no direct or circumstantial evidence of discrimination or intent
to treat the mosque differently from the other houses of worship.
Plaintiffs are also unable to establish that they were treated
less favorably than any similarly situated comparators, and they 10 Members of the Board were familiar with problems associated with inadequate onsite parking and the difficulties in enforcement post facto. At the time of the application, there was a well known problem with inadequate parking at a baseball complex which resulted in numerous complaints and a safety issue. Rather than respond piecemeal by ordinances restricting parking on streets, the Board attempted to ensure adequate parking on this and other applications. Testimony also revealed that movement of fire trucks might be impaired when traffic is queued at the 4 way intersection doors down from the site. (September 4, 2012, p. 87)
29
have not shown any discrimination or intent to discriminate and
cannot prove a nondiscrimination claim under section 2000cc(b)
(2).
Also, even if, arguendo, burden shifting provisions apply,
the Defendants have shown that the reasons for the allegedly
disparate treatment of ISBR were not pre-textual. At a minimum,
and construing the pleadings is the light most favorable to the
non-moving parties, the Defendants, the Defendants have raised
issues of genuine material fact such that this court cannot grant
judgment on the pleadings as to the nondiscrimination clause
claim. See Adhi Parasakthi Charitable v. Twp. of W. Pikeland, 721
F. Supp. 2d 361, 386 (E.D. Pa. 2010).
For the above reasons, Plaintiffs were unable to show a
violation of RLUIPA's nondiscrimination provision.
III. TOWNSHIP ORDINANCE § 21-22.1 IS NOT UNCONSTITUTIONAL
Plaintiffs further contend that the Board wielded Ordinance
21-22.1 as a "weapon" to discriminate against the ISBR, and that
the Ordinance is vague and bestows unlawful and unlimited
discretion upon the Planning Board. To the contrary, the
Ordinance serves the purpose of protecting applicants from
discriminatory or arbitrary decisions and clearly specifies the
standards and process used by the Board to evaluate the off-
street parking requirements of all applicants. The Board applied
30
these precise considerations and procedures in evaluating the
ISBR's parking requirement, as explained at length in the
Resolution.
A. The Parking Ordinance is not unconstitutional under the U.S. Constitution
The Third Circuit has identified two criteria for evaluating
a vagueness challenge under the due process clause:
First, a statute making conduct unlawful must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). Second, "if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them."
Trade Waste Management Asso. v. Hughey, 780 F.2d 221, 235
(3d Cir. 1985). A court ruling on a facial challenge "must
consider any limiting construction a state or municipality has
placed on a law, including any administrative interpretation and
implementation of that law." Contractors Ass'n v. City of
Philadelphia, 945 F.2d 1260, 1269 (3d Cir. 1991). The procedure
followed is at issue "since 'the courts will not invalidate a
statute on its face simply because it may be applied
unconstitutionally, but only if it cannot be applied consistently
with the Constitution.'" Id. (quoting Hohe v. Casey, 868 F.2d 69,
71 n. 2 (3d Cir. 1989)(further citations omitted). The issue of
whether an ordinance is unconstitutionally vague "cannot be
31
decided in a vacuum but must be made in light of its context and
with a firm understanding of its purpose," and "the
constitutional standard ...must not be mechanically applied."
DaPurificacao v. Zoning Bd. of Adjustment of Tp. of Union, 377
N.J. Super. 436, 443-444 (App.Div. 2005). The "crux" or key "of
a void-for-vagueness challenge under the Due Process Clause is a
lack of notice." Adhi Parasakthi Charitable v. Twp. of W.
Pikeland, 721 F. Supp. 2d 361, 380 (E.D. Pa. 2010). Finally, an
ordinance must contain a standard that can be objectively applied
to determine if the conduct at issue complied with the ordinance
and provides objective criteria that the board can apply in
determining the applications' compliance. Cunney v. Bd. of Trs.
of Grand View, 660 F. 3d 612, 622 (2d Circuit. 2011).
First, Ordinance § 21-22.1 is not unconstitutionally vague.
Plaintiffs argue that the Ordinance gives no specific notice of
how to design a parking plan that satisfied the Parking
Ordinance. To the contrary, the Ordinance "give[s]the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly." Trade Waste
Management Asso. v. Hughey, 780 F.2d at 235, citing Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972). The Ordinance clearly
states its objective: to "provide for parking demand by requiring
off-street parking except as noted for residential development"
(ECF. No. 31, 2, p. 1). It is sufficiently specific to provide
32
adequate notice to applicants as to what is required. This is
achieved through a schedule of "standards acceptable to the
Township" for certain enumerated residential and nonresidential
uses. (Id.) The schedule identifies parking space ratios for five
residential uses and approximately 18 non-residential uses
divided into commercial, industrial and institutional uses,
including "churches" (but not mosques). (Id.).
Although the Ordinance does not list parking ratios for all
conceivable uses, such as mosques, it provides that "[s]ince a
specific use may generate a parking demand different from those
enumerated below, documentation and testimony shall be presented
to the Board as to anticipated parking demand." (Id.) The
subsequent language that the Board "may...require that provision
be made for the construction of spaces in excess of those
required" is fully explained by, and subject to the previous
clauses. Therefore, the Ordinance makes it clear that this is
the standard to be applied by the Board to determine the parking
requirements for a proposed mosque, for example, i.e., that the
applicant would be required to submit documentation and testimony
to the Board as to their anticipated parking demand, which the
Board would then consider and rule upon. (Id.) The fact that the
Ordinance does not include parking requirements for all uses,
such as mosques, des not render it unconstitutionally vague; "it
is well understood that not all ordinances need attain the same
33
level of definitional clarity, nor can it be expected that an
ordinance will expressly provide for all possible lawful uses."
DaPurificacao, 377 N.J. Super. at 443-444, citing Tanis v.
Township of Hampton, 306 N.J. Super. 588, 602 (App. Div. 1997)
(noting "the impossibility of providing expressly by zoning
ordinance for every possible lawful use,")(quoting Town of Salem
v. Durrett, 125 N.H. 29, 480 A.2d 9, 10 (1984)).
Plaintiffs rely upon Cunney, supra, to argue that the
Ordinance here is unconstitutionally vague, but Cunney concerned
building height criteria, not the number of parking spaces
required, and failed to specify the location of an elevation
point to actually measure the building's height whereas the
Ordinance here contains the necessary specifications. Id. at
622. The Ordinance also permissibly provides the Board with the
necessary flexibility to make appropriate decisions, by
recognizing that a specific use may generate a parking demand
different from the enumerated standards. The standards for the
Board's analysis are clearly stated: the applicant presents
documentation and testimony as to the anticipated parking demand,
based upon which the Board can allow for a lesser number of
spaces or require construction of spaces in excess of those
identified in the Ordinance. (ECF No. 31-2, p. 1). Therefore,
applicants like the Plaintiffs are given adequate notice as to
how parking requirements will be determined and also as to the
34
parameters for the Board's exercise of its discretion.
Plaintiffs present no evidence to support their argument that the
Ordinance somehow did not put them on notice, and this claim is
belied by the record which shows that they were able to submit a
site plan and present supporting expert engineering testimony and
documentation on this issue. See Adhi Parasakth, 721 F. Supp. 2d
at 380. (The fact that the numbers supplied by the ISBR's experts
were not accepted by the Board does not render the Ordinance
unconstitutionally vague.
Second, the Ordinance did not vest the Board with arbitrary
power or an unfettered discretion to apply or enforce its
provisions. The Board's determination that more spaces were
needed was not an arbitrary exercise of discretion, but was based
upon the Ordinance and evidence and documentation presented by
the Plaintiffs and the objectors, including the authoritative ITE
parking standards. The Ordinance provides "explicit standards
for those who apply them" like the Board, and objective criteria
to determine an application's compliance. See Trade Waste, 780
F.2d at 235. The language in the Ordinance regarding use of the
schedule, and requiring the presentation and consideration of the
applicant's documentary and testimonial evidence, specifies the
method for the Board to exercise its discretion to treat the
facts of each application uniformly, "free from improper or
inappropriate considerations and from unfair discrimination." See
35
Comite Patriotico Cultural Puertorriqueno, Inc. v. Vas, 2008 U.S.
Dist. LEXIS 49090, *20-22 (D.N.J. June 26, 2008)(quoting Cox v.
New Hampshire, 312 U.S. 569, 576 (1941)). The Board's exercise
of discretion is constrained by both the schedule of parking
standards and the requirement that the Board consider the
documentation and testimony by the applicant as to anticipated
parking demand. (ECF No. 31-2, p. 1).
Plaintiffs also misplace their reliance on Bykofsky v.
Middletown, 401 F. Supp. 1242 (M.D. pa. 1975), affirmed without
opinion, 535 F. 2d 1245 (3d. Cir. 1976), cert denied, 429 U.S.
964 (1976) which involved a penal ordinance, much of which was
held not to be too vague. The only provisions found to be vague
were the phrases "normal...night-time activities" and "a minor
well along the road to maturity," because the ordinance did not
specify what is normal or what indicia of maturity was to be
used, therefore providing unbridled discretion. Id. at 1249.
Bykofsky did not find a provision permitting minors to be on the
streets in a case of "reasonable necessity" to be
unconstitutionally vague, and instead acknowledged that striking
this down would remove "a desirable flexibility that enables the
law to be applied in a rational manner to any given situation,
including circumstances not now foreseeable." 401 F. Supp. at
1249 (emphasis added). Ordinance § 21-22.1 is not a penal
ordinance, does not contain vague undefined standards as in
36
Bykofsky, and any "flexibility" found in the Ordinance is
appropriate and allows it to be applied to any proposed or
special use.
Plaintiffs argue that a "more strict vagueness test" applies
to statutes that affect First Amendment rights, citing Hoffman
Estates v. Flipside, 455 U.S. 489 (1982). However the Hoffman
ordinance did not involve parking, was held not to be vague, and
did not reach a substantial amount of constitutionally protected
conduct. Id. at 501-505. MAG Realty, LLC v. City of Gloucester
City, 2010 U.S. Dist. LEXIS 82035, *33, 54 (D.N.J. Aug. 12, 2010)
is also distinguishable as it involved a first amendment right
(erotic dancing) and was "indecipherable." The instant Ordinance
contains clearly specified terms and Plaintiffs cite no cases to
show that a parking ordinance is subject to the "more strict
vagueness test" applied when first amendment rights are
implicated.
The Ordinance also did not "abandon" a 3:1 ratio to apply an
individualized assessment as Plaintiffs charge, because, again,
the 3:1 ratio was identified in the schedule as applying to
"churches" - not mosques. For the above reasons, Plaintiffs
failed to show that the Ordinance as a whole, or any part of it
is unconstitutionally vague.
37
B. The Parking Ordinance is not unconstitutional under the New Jersey Constitution and none of it should be excised
The Ordinance is also not unconstitutional under the New
Jersey Constitution. Like all zoning ordinances, the Ordinance
"enjoys a presumption of validity," and "[t]he party attacking
the ordinance bears the burden of overcoming this presumption."
See Damurjian v. Board of Adjustment of the Tp. of Colts Neck,
299 N.J. Super. 84, 93 (App.Div. 1997). The Ordinance must be
liberally construed in favor of the municipality. See Twp. of
Pennsauken v. Schad, 160 N.J. 156, 171 (N.J. 1999).
The language in the Ordinance satisfies the requirement that
a zoning ordinance "must be clear and explicit in its terms,
setting forth adequate standards to prevent arbitrary and
indiscriminate interpretation and application by local
officials." J. D. Constr. Corp. v. Board of Adjustment, 119 N.J.
Super. 140, 149 (Law Div. 1972). Again, the Ordinance does not
grant the Board unbridled discretion, but specifically provides
that the Board must look to the schedule and consider the
applicant's documentation and evidence. These are sufficiently
clear standards to prevent subjective or arbitrary
determinations, provide workable guidelines for applicants, and
the Ordinance sets and provides courts with understandable
criteria to determine if the decision was arbitrary or
38
capricious. See Lionshead Woods Corp v. Kaplan Bros., 250 N.J.
Super. 535, 51 (Law. Div. 1991).
Plaintiffs rely upon Damurjian, supra, and Diocese of
Metuchen v. Piscataway Twp, 252 N.J. Super 525 (Law Div. 1991)
neither of which involved off-street parking ordinances.
Plaintiffs also cite to Associated Land & Invest. Corp. v. City
of Lyndhurst, 154 N.E.2d 435 (Ohio 1958), a non-binding Ohio
state case which involved undefined terms such as "reasonably
adequate" and "normal volume." No such undefined terms are at
issue with regard to Ordinance § 21-22.1, and it plainly contains
sufficient standards to guide the Board in exercising its
discretion.
Finally, all of Ordinance § 21-22.1 is constitutional and no
portions should be excised.
CONCLUSION
For the foregoing reasons, Defendants respectfully request
that this Honorable Court deny Plaintiff's Motion for Partial
Judgment on the Pleadings in its entirety.
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Respectfully submitted,
MARSHALL DENNEHEY WARNERCOLEMAN & GOGGIN
By: /s/ Howard B. MankoffHOWARD B. MANKOFF, ESQ.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
Dated: June 6, 2016
LEGAL/105487988.v1FOLDER 4 - PLEADINGS
40
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