CONGREGATION KOLLEL, INC. et al v. TOWNSHIP OF HOWELL, N.J. et al

Filing 19

OPINION filed. Signed by Judge Freda L. Wolfson on 2/16/2017. (mps)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
CONGREGATION KOLLEL, INC., and
:
ZEBRA HOLDINGS II, LLC,
:
Civ. No. 16-2457 (FLW)
:
Plaintiffs,
:
:
v.
:
OPINION
:
TOWNSHIP OF HOWELL, N.J., and
:
HOWELL TOWNSHIP ZONING BOARD :
OF ADJUSTMENT,
:
:
Defendants.
:
____________________________________:
WOLFSON, District Judge:
Plaintiffs Congregation Kollel, Inc. (the “Kollel”) and Zebra Holdings II, LLC
(“Zebra”) (collectively, “Plaintiffs”), sought a land use permit from the Township of
Howell (the “Township”) and Howell Township Zoning Board of Adjustment (the
“Board”) (collectively, “Defendants”) to build and operate a Jewish educational facility.
Defendants denied Plaintiffs’ application, allegedly on the grounds that the type of facility
which Plaintiffs seek to erect is not permitted under the Township’s Zoning Ordinance.
Rather, Defendants instructed Plaintiffs to seek a variance under the applicable land use
provisions of the Ordinance. While Plaintiffs applied for a variance, they also brought the
instant suit challenging, inter alia, Defendants’ denial as burdensome, discriminatory and
unreasonable in violation of their constitutional rights, the Religious Land Use and
Institutionalized Persons Act of 2000, 42 U.S.C.§§ 2000c, et seq. (“RLUIPA”), the Fair
Housing Amendments Act (the “FHAA”), and the New Jersey Law Against Discrimination

(“NJLAD”). Indeed, underlying Plaintiffs’ claims is their accusation that Defendants’ land
use decision was based on a religious animus towards the Orthodox Jewish faith.
In the instant matter, Defendants move to dismiss the Complaint, not based on the
merits of the claims, but rather, on the doctrine of ripeness. In so moving, Defendants posit
that because the variance process has not concluded, Plaintiffs’ claims brought here are
premature. For the reasons explained below, Defendants’ motion to dismiss is GRANTED
in part and DENIED in part; in that regard, the Court finds that Plaintiffs’ federal claims,
i.e., Counts I-VIII, are ripe, and with respect to state law claims asserted in Counts X and
XI, the Court will exercise supplemental jurisdiction. However, Plaintiffs must exhaust
their administrative remedies as to Count IX, action in lieu of prerogative writ.
BACKGROUND
I.

The Planned Facilities
For the purpose of this dismissal motion, the Court will only recount relevant facts

from the Amended Complaint and take them as true. The Kollel is a religious organization
that promotes the advancement of the Orthodox Jewish faith and Talmudic studies.
Compl., ¶ 12. Currently, the Kollel owns and operates a higher Talmudic academy in
Lakewood, New Jersey, which has been in existence since 2005. In 2014, to expand its
educational facilities, the Kollel decided to include a mesivta 1 and a yeshiva gedola. 2 Id.
at ¶ 26. According to the Kollel’s plans, there would be 30 students in each year of the
three-year program at the yeshiva gedola, for a total of 90 students, who would live in

1

A mesivta is a religious educational facility that emphasizes Talmudic studies for
students that are of post-bar mitzvah age. Compl., ¶ 27.
2

The Kollel’s planned yeshiva gedola is a religious educational facility for Talmudic
studies for undergraduate-level students, between the ages of 18-22. Compl., ¶¶ 28, 34.
2

dormitories on-site, id. at ¶ 36, and there would be ten to thirteen full and part-time faculty
members. Id. at ¶ 45. The hours of operation of the school would be from 7:45 a.m. to
9:00 p.m., seven days a week. Id. at ¶ 49. Importantly, the planned yeshiva gedola would
house no separate synagogue and no worship services would be advertised. Id. at ¶ 51.
Because the Lakewood academy is at its capacity, in Spring 2015, the Kollel
determined that it would seek to expand its facilities in the Township of Howell. Compl.,
¶ 73. The Kollel proposes to construct a two-story, 17,240 square foot classroom building,
with a basement, in which to conduct Jewish studies; a two-story 19,186 square foot
dormitory building with a basement; and seven attached two-story townhouses to be used
for faculty housing. Id. at ¶ 98. A paved driveway will provide access to the site, and 41
off-street parking spaces are proposed. Id. at ¶ 99. Pursuant to that endeavor, Plaintiff
Zebra 3 purchased a 10.1-acre property located at 344 Ford Road 4 in the Township (the
“Ford Property”), 5 which is located within the “ARE-2” Zone. Id. at ¶ 79. According to
Plaintiffs, at the time the Ford Property was purchased, and until 2016, “educational
facilities” were a use permitted by right within the ARE-2 Zone in the Township. Id. at ¶
80.

And, the Property as proposed would be in character with the surrounding

3

In their Original Complaint, Plaintiffs improperly pled Zebra Holdings II, LLC as
Zebra Holdings, LLC. Plaintiffs corrected this mistake in their Amended Complaint.
4

Currently, the Ford Property is improved with a split-level single family residence,
a stone/gravel driveway, a wood deck and above-ground swimming pool and a large
chicken coop. Id. at ¶ 78.
5

According to the Complaint, the Kollel has a contract to purchase the Ford Property
from Zebra. Id. at ¶ 76.
3

neighborhood, which consists of residential, institutional, agricultural and nearby
commercial land uses. 6 Id. at ¶ 83.
II.

The Township’s Local Land Use Ordinance
The use of the Ford Property is subject to the Zoning Ordinance of the Township.

Section 188-50 of the Ordinance, entitled “Conformity to regulations required” provides,
“[n]o lands, lot or premises and no building or structure shall be used for any purpose other
than those permitted by Articles VIII through XI for the zone in which it is located.”
Compl., ¶ 102. Under the ARE-2 Zone, permitted principal uses as of right include
agricultural uses, single-family residential, municipal buildings, public recreation, group
homes and educational facilities. 7 Id. at ¶¶ 103-04. In addition, permitted accessory uses
in that zone include “Accessory uses customarily incidental and ancillary to a permitted
use” and “Home occupations.” Id. at ¶ 105. Permitted conditional uses are: House of
worship; community residences for the developmentally disabled and community shelters
for victims of domestic violence that contain more than six and fewer than 15 occupants;
and solar energy general facility. Id. at ¶ 106. Plaintiffs claim that their “proposed use is
an educational facility.” Id. at ¶ 110.

6

More specifically, Plaintiffs list the following educational institutions that are
purportedly located in the Township’s ARE-2 zoning district: Lil’ achievers Early
Childhood Center; Howell North Middle School; Howell Memorial Middle School;
Ardena School; Griebling School; Greenville School; Ramtown School; Howell Middle
School South; and the Coastal Learning Center.
7

On March 20, 2007, the Township adopted Ordinance No. O-07-09, which
permitted “Educational facilities” as a principal permitted use in the ARE-2 Zone. Compl.,
¶ 107. According to Plaintiffs, the Township made this amendment because, in 2006, the
Township was seeking funding for educational facilities from the State. Id. at ¶ 112.

4

Because the term “Educational Facility” is not defined by the Ordinance, as a
proposed definition, Plaintiffs cite to the New Jersey Educational Facilities Authority,
N.J.S.A. 18A:72A-1, et seq., which provides in relevant part:
a structure suitable for use as a dormitory, dining hall, student union,
administration building, academic building, library, laboratory, research
facility, classroom, athletic facility, health care facility, teaching hospital,
and parking maintenance storage or utility facility and other structures or
facilities related thereto or required or useful for the instruction of students
or the conducting of research or the operation of an institution for higher
education, and public libraries, and the necessary and usual attendant and
related facilities and equipment, but shall not include any facility used or to
be used for sectarian instruction or as a place for religious worship[.]
N.J.S.A. 18A:72A-3. The same provision defines a “Dormitory” as “a housing unit with
necessary and usual attendant and related facilities and equipment, and shall include a
dormitory of a public or private school, or of a public or private institution of higher
education.” Id. Plaintiffs contend that dormitories are educational facilities under the
State’s definition.
III.

The Kollel’s Land Use Application
In accordance with the Township’s Zoning Ordinance, on August 19, 2015, the

Kollel filed a Land Use Permit Application and concept plan with the Township,
Department of Community Development and Land Use, seeking confirmation that the
Kollel’s proposed educational facility is a permitted use within the ARE-2 Zone as set forth
in Section 118.69.1B(1)(b). Compl., ¶ 159. At the end of that month, the Township’s
Director of Land Use denied the application, determining that the while the non-residential
component of the proposed project was permitted, the student and faculty housing are not.
Id. at ¶ 161. Moreover, the Director determined that it is not permissible to erect four
principal structures as set forth by Plaintiffs’ concept plan. Id. at ¶ 164. Rather, only one

5

structure is permitted on a lot. Id. As a result of the denial, the Director indicated that the
Kollel must apply for a variance before the Township’s Board of Adjustment.
On September 18, 2015, pursuant to N.J.S.A. 40:55D-70a and 72a, the Kollel filed
an appeal of the August 31, 2015 decision to the Board on the basis that student and faculty
housing is part of the principal educational facility use of the Ford Property. Alternatively,
Plaintiffs propose that such housing is a permitted accessory use of the Property, and that
the planned four structures on the property constitute a permitted institutional building
complex. 8 Id. at ¶ 171. The Board scheduled a public hearing on December 21, 2015. Id.
at ¶ 184. The Kollel presented one witness at that hearing, Zev Rothschild, the President
of the Kollel, to describe the proposed educational facility use. Id. at ¶ 185. According to
Plaintiffs, the Board and its professionals were “irrationally hostile to the religious nature
of the proposed use, attempting to describe the use as a ‘synagogue’ rather than an
educational facility, which further demonstrated hostility toward the ultra-Orthodox
character of the [] Kollel.” Id. at ¶ 187. Plaintiffs further allege that the Board permitted
various members of the public to question the witness for the Kollel, despite the fact that
the Board was only ruling on a legal determination as to whether use was permitted in the
ARE-2 Zone. Id. at 194. The public, Plaintiffs aver, was significantly hostile towards the
Kollel and its application. Id. at ¶ 195.
The Board held a second hearing on February 29, 2016. At this hearing, the Kollel
presented the testimony of its professional planner, Andrew Janiw, to further explain the
use and the proposed student and faculty housing. Id. at ¶¶ 204-05. Plaintiffs allege that

8

As alternative relief, the Kollel applied for a variance pursuant to N.J.S.A. 40:55D70c. Compl., ¶ 172. That application is still pending.
6

the Board exhibited the same hostility towards Janiw, “based specifically on the religious
nature of [the Ford Property’s] use.” 9 Id. at ¶ 206. According to Plaintiff, Janiw was
subjected to contentious and inappropriate questioning by the Board and its Planner, which
demonstrated the Board’s “animus toward ultra-Orthodox Jews.” Id. at ¶ 224.
On March 28, 2016, the Board unanimously voted to uphold the Director’s denial,
and issued a Memorialization of Resolution. In its Resolution, the Board reasoned that the
State’s definition of “Educational Facility” that the Applicant sought to apply, “although
broadly permitting dormitories and structures relating to the operation of such facilities,
specifically excludes ‘any facility used or to be used for sectarian instruction or as a place
of religious worship.’” Resolution, dated March 28, 2016, p. 6. The Board also rejected
the Kollel’s application on the basis that the proposed dormitories and faculty housing are
not customary and incidental to an educational facility, and it is a “matter of semantics in
referring to the project as an educational facility.” Id. at p. 7. Indeed, according to the
Board, proposed dormitories are not permitted in ARE-2 Zone in the Township, see id. at
p. 8, nor do they fit within the exception as a public or institutional building complex.
Ultimately, the Board determined that “the proposal essentially consisted of a school, with
multi-family structures for students, and faculty and their families, which is clearly
prohibited in” in the ARE-2 Zone. Id. at p. 10.
On January 25, 2016, “Educational Facility” was removed as a permitted use within
the ARE-2 Zone by the Township. Compl., ¶ 120. According to Plaintiffs, the Township
adopted this amendment after Plaintiffs had applied for zoning approval because it was

9

Plaintiffs state in their Complaint that the Kollel would forego the faculty, but not
the student, housing if that was required to have the project approved. Id. at ¶ 213.
7

motivated by a religious animus towards ultra-Orthodox Jews in general, and Plaintiffs in
particular. Id. at ¶¶ 121-23.
IV.

The Amended Complaint
Before the variance process concluded, in July 2016, Plaintiffs filed the instant suit,

asserting eleven causes of action. Count I – Count IV assert that Defendants violated the
RLUIPA by illegally imposing land use regulations both on their face and as applied in a
manner that violates Plaintiffs’ religious exercise without using the least restrictive means
of achieving a compelling governmental interest. Compl., ¶¶ 303-309. Specifically, under
RLUIPA, Count I asserts that Defendants substantially burdened Plaintiffs’ religious
rights. On the same statutory basis, Count II accuses Defendants of discriminating against
Plaintiffs on the basis of religion and religious denomination. Id. at ¶ 305. In addition,
Count III alleges that Defendants’ implementation of the Township’s regulations in a
manner that “religious land uses them on terms that are less than equal to nonreligious
assembly and institutional land uses.” Id. at ¶ 307. Finally, Plaintiffs, in Count IV, aver
that Defendants’ land use determinations have totally excluded Plaintiffs’ “religious
assembly from within the jurisdiction” in violation of RLUIPA. Id. at ¶ 309.
Furthermore, Plaintiffs allege that Defendants’ conduct violated Plaintiffs’ rights
under: the FHAA (Count V); the First Amendment Free Exercise of Religion (Count VI),
and Freedom of Speech (Count VIII); Fourteenth Amendment’s Equal Protection clause
(Count VII); the NJLAD (Count X); and New Jersey Constitution’s Art. 1 ¶¶ 1, 3 (Count
XI). In addition to the aforementioned causes of action, Plaintiff seeks a prerogative writ
under N.J.S.A. § 40:55D-1, et seq. (Count IX). In connection with these Counts, Plaintiffs

8

ask for declaratory and injunctive relief, including the reversal of the decision of the Board,
compensatory damages, costs and attorney’s fees.
In the instant matter, Defendants move to dismiss Plaintiffs’ Complaint on the basis
that Plaintiffs’ federal claims are not ripe for this Court’s disposition. In particular,
Defendants posit that, because the variance process has not concluded, there exists no
actual case or controversy. I stress that Defendants did not move to dismiss Plaintiffs’
Complaint based on sufficiency of the pleadings. Therefore, the main question I am called
upon to decide is whether the doctrine of ripeness applies to preclude Plaintiffs’ federal
claims at this time.
DISCUSSION
I.

Standard of Review
To begin, when considering challenges to ripeness under Rule 12(b)(1), courts

apply the same standards that are used to resolve a motion under Rule 12(b)(6). See
Evanston Ins. Co. v. Layne Thomas Builders, Inc., 635 F. Supp. 2d 348, 352 (D. Del. 2009).
In reviewing a motion to dismiss on the pleadings, the court “accept[s] all factual
allegations as true, construe[s] the complaint in the light most favorable to the plaintiff,
and determine[s] whether, under any reasonable reading of the complaint, the plaintiff may
be entitled to relief.” Phillips v. Cnty of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)
(citation and quotations omitted). As such, a motion to dismiss for failure to state a claim
upon which relief can be granted does not attack the merits of the action but merely tests
the legal sufficiency of the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009) (internal quotations omitted); see also Fed. R. Civ. P. 8(a)(2) (“[a] pleading that
states a claim for relief . . . must contain a short and plain statement of the claim showing

9

the pleader is entitled to relief”). In other words, to survive a Fed R. Civ. P. 12(b)(6) motion
to dismiss for failure to state a claim, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Id. (quoting
Twombly, 550 U.S. at 570).
However, “the tenet that a court must accept as true all the allegations contained in
the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555). Plaintiff need not meet any particular “probability
requirement” but must show that there is “more than a sheer possibility that the defendant
has act unlawfully.” Id. (citing Twombly, 550 U.S. at 556). Moreover, “context matters in
notice pleading” and a complaint will fail to state a claim if the “factual detail in the claim
is so underdeveloped that it does not provide a defendant with the type of notice of a claim
which is contemplated by Rule 8.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d
Cir. 2008).
When presented with a motion to dismiss, the court should engage in a two-part
analysis. Fowler, 578 F.3d at 210. First, the court must separate the factual and legal
elements of each claim. Id. It “must accept all of the complaint’s well-pleaded facts as true,
but may disregard any legal conclusions.” Id. at 210-11 (citing Iqbal, 556 U.S. at 667).
Second, the court must determine whether the facts alleged are “sufficient to show that the
plaintiff has ‘a plausible claim for relief.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679). The
plausibility determination is a “context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. In other words,
for the plaintiff to prevail, the “complaint must do more than allege the plaintiff’s

10

entitlement to relief;” it must “‘show’ such an entitlement with its facts.” Fowler, 578 F.3d
at 211 (citing Phillips, 515 F.3d at 234-35); see Covington v. International Ass’n of
Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (“[A] claimant does not
have to ‘set out in detail the facts upon which he bases his claim.’ … The pleading standard
‘is not akin to a ‘probability requirement,” … to survive a motion to dismiss, a complaint
merely has to state a ‘plausible claim for relief.’” (Citations omitted)).
II.

Ripeness
As a general matter, ripeness is a jurisdictional inquiry, rooted in both the case or

controversy requirement of our Constitution's Article III and judge-made prudential
limitations on the exercise of judicial authority. Congregation Anshei Roosevelt v.
Planning & Zoning Bd., 338 Fed. Appx. 214, 216-17 (3d Cir. 2009); Murphy v. New
Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005) (citing Suitum v. Tahoe Reg'l
Planning Agency, 520 U.S. 725, 733 n.7 (1997)). The ripeness doctrine’s “basic rationale
is to prevent the courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements . . . .” Abbott Labs. v. Gardner, 387 U.S. 136, 148
(1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977); Phila. Fed'n
of Teachers v. Ridge, 150 F.3d 319, 323 (3d Cir. 1998). Ripeness, therefore, is “peculiarly
a question of timing” as cases may later become ready for adjudication even if deemed
premature on initial presentation. Reg'l Rail Reorganization Act Cases, 419 U.S. 102, 140
(1974).
“Determining whether a case is ripe requires [courts] to ‘evaluate both the fitness
of the issues for judicial decision and the hardship to the parties of withholding court
consideration.’” Murphy, 402 F.3d at 347 (citing Abbott Labs., 387 U.S. at 149). Indeed,

11

this two-prong inquiry incorporates both the doctrine's Article III and prudential
implications. The “fitness of the issues for judicial decision” prong recognizes the restraints
Article III places on federal courts. It requires a weighing of the sensitivity of the issues
presented and whether there exists a need for further factual development. See, e.g.,
Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581 25 (1985). The “hardshipto-the-parties” prong clearly injects prudential considerations, “requiring courts to gauge
the risk and severity of injury to a party that will result if the exercise of jurisdiction is
declined.” Murphy, 402 F.3d at 347 (citing Abbott Labs., 387 U.S. at 149).
The Supreme Court first developed specific ripeness requirements for land use
disputes in Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985). The Court devised a two-prong test for determining ripeness in
the context of land-use disputes. The first prong requires that “the government entity
charged with implementing the regulations has reached a final decision regarding the
application of the regulations to the property at issue.” Id. at 186. The second prong
requires that the plaintiff must have exhausted the state’s procedures for obtaining just
compensation for a taking. Id. at 194-95. While Williamson involved a challenge to a
regulatory taking, subsequent Third Circuit decisions have applied this ripeness reasoning
to land use disputes involving other constitutional claims. See, e.g., Congregation Anshei,
338 Fed. Appx. at 217 (citing Murphy, 402 F.3d at 350) (Free Exercise Clause and RLUIPA
claims); Taylor Inv., Ltd. v. Upper Darby Township, 983 F.2d 1285, 1291 (due process and
equal protection action under 42 U.S.C. § 1983); County Concrete Corp. v. Township of
Roxbury, 442 F.3d 159, 164 (3d Cir. 2006) (substantive due process and equal protection
claims).

Because constitutional claims in these cited-cases do not involve just

12

compensation, the second prong of Williamson does not apply. See Murphy, 402 F.3d at
349; Taylor Inv., 983 F.2d at 1291 (applying only the first prong of Williamson's ripeness
test to as-applied substantive due process and equal protection claims); Congregation
Anshei, 338 Fed. Appx. at 217 (applying only Williamson’s first prong to RLUIPA claims).
Analysis under the first prong of Williamson ensures that a claim is ripe because
“[o]nly once a ‘decision maker has arrived at a definitive position on the issue’ has a
property owner been inflicted with ‘an actual, concrete injury.’” County Concrete, 442 F.3d
at 159 (quoting Williamson, 473 U.S. at 192). The Third Circuit has advised that federal
courts should not “become super land-use boards of appeals” because “[l]and-use decisions
concern a variety of interests and persons” and “local authorities are in a better position
than the courts to assess the burdens and benefits of those varying interests.” Sameric Corp.
of Del. v. City of Philadelphia, 142 F.3d 582, 598 (3d Cir. 1998).
The Third Circuit has explained that that the finality requirement of the ripeness
inquiry: “(1) aids in the development of a full record; (2) provides the court with knowledge
as to how a regulation will be applied to a particular property; (3) may obviate the need for
the court to decide constitutional disputes if a local authority provides the relief sought;
and (4) shows the judiciary’s appreciation that land use disputes are uniquely matters of
local concern more aptly suited for local resolution.” Congregation Anshei, 338 Fed.
Appx. at 217 (citing Murphy, 402 F.3d at 348) (internal citations omitted).
Because the Court must undertake the ripeness inquiry as to each claim asserted in
the Complaint, I will address Plaintiffs’ claims separately, below.

13

A. The RLUIPA claims
In Counts I – IV, Plaintiffs accuse Defendants of violating RLUIPA by illegally
imposing land use regulations both on their face and as applied in a manner that violates
Plaintiffs’ religious exercise without using the least restrictive means of achieving a
compelling governmental interest. RLUIPA, “‘the latest of long-running congressional
efforts to accord religious exercise heightened protection from government-imposed
burden,’” addresses, among other things, land use regulations. Lighthouse Inst. for
Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 261 (3d Cir. 2007) (quoting Cutter
v. Wilkinson, 544 U.S. 709, 714 (2005)). The land-use section of the statute is divided into
two subsections, which provide:
(a) Substantial burdens.
(1) General rule.
No government shall impose or implement a land use regulation in
a manner that imposes a substantial burden on the religious exercise
of a person, including a religious assembly or institution, unless the
government demonstrates that imposition of the burden on that
person, assembly, or institution-(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling
governmental interest.
...
(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.

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(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(a), (b). “The use, building, or conversion of real property for the
purpose of religious exercise shall be considered . . . religious exercise.” Id. § 2000cc5(7)(A), (B).
1. Facial Challenge
Before examining the ripeness of the RLUIPA claims, I first address Plaintiffs’
assertion of a facial challenge to the Zoning Ordinance at issue. Plaintiffs spent a
significant portion of their opposition brief explaining that their Complaint contains several
facial challenges to the Zoning Ordinance. Essentially, underlying Plaintiffs’ challenge is
their contention that, because Defendants’ Resolution established that Plaintiffs’ proposed
religious educational facility, i.e., the mesivta and yeshiva gedola, is not permitted under
the Zoning Ordinance, boarding schools are effectively prohibited throughout the
Township. Based on that argument, Plaintiffs claim, for example, that Defendants violated
RLUIPA because they precluded the Kollel’s religious land use throughout the jurisdiction,
which amounts to a total exclusion of the use and a substantial burden on the Kollel’s
religious exercise. 10 I disagree.

10

In their Complaint, Plaintiffs reference Ordinance No. O-14-13, adopted by the
Township on May 20, 2014, which prohibited “schools with state-approved curricula” as
a permitted or conditional use within the ARE-2 zoning district. The Ordinance also
prohibited outright any “school”, as defined by the Ordinance, from having dormitory
housing, as well as imposed a requirement that those schools be licensed by State of New
Jersey. Compl., ¶¶ 137-41. However, because Plaintiffs applied for their land use permit
before the Board as an “Educational Facility” in ARE-2 Zone, on this motion, the Court
15

I note that because I find Plaintiffs’ claims are ripe on other grounds, see infra, I
will not exhaustively address Plaintiffs’ facial challenge arguments. But, suffice it to say,
the challenges Plaintiffs advance with regard to the Zoning Ordinance are more
appropriately categorized as “‘as-applied” challenges. A party asserting a facial challenge
“seeks to vindicate not only his own rights, but those of others who may also be adversely
impacted by the statute in question.’” CMR D.N. Corp. & Marina Towers Ltd. v. City of
Phila., 703 F.3d 612, 624 (3d Cir. 2013) (quoting City of Chi. v. Morales, 527 U.S. 41, 55
n.22 (1999)); Bruni v. City of Pittsburgh, 824 F.3d 353, 363 (3d Cir. 2016). In mounting
a facial challenge, the plaintiff does not seek to establish that the law cannot be applied to
him or her; rather, he or she must demonstrate that “no set of circumstances exists under
which the [challenged] Act would be valid.” United States v. Mitchell, 652 F.3d 387, 405
(3d Cir. 2011) (en banc) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
Because of the broad nature of facial challenges, the Supreme Court has repeatedly
admonished that they are disfavored and should be considered sparingly. See, e.g., Wash.
State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). This is so
because facial challenges seek to completely invalidate a law and because a ruling on the
constitutionality of all possible applications of a statute necessarily “rest[s] on speculation”
and invites the “premature interpretation of statutes.” Id. (internal citations omitted); CMR,
703 F.3d at 624.
Here, Plaintiffs’ claims do not meet these criteria or otherwise resemble a facial
attack on the Zoning Ordinance. First, as a general matter, Plaintiffs’ entire theory of the

will solely focus on this basis as it relates to Plaintiffs’ constitutional challenges. See
Plaintiffs’ Opp. Br., p. 32 (stating that as it relate to Ordinance O-14-13, “the Court need
not reach this issue, as the Kollel’s use is permitted as an “Educational Facility.”).
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case, at its core, is that Defendants’ erroneous interpretation of the term “Educational
Facility” as set forth in Section 118-69.1B(1)(b) of the Zoning Ordinance, and the attendant
accessory uses, was religiously motivated. Indeed, nowhere in Plaintiffs’ Complaint do
they claim that the enactment of the Zoning Ordinance, as a whole, could not be
constitutionally applied to any property. Second, Plaintiffs do not assert that Defendants’
interpretation of “Educational Facility” cannot be constitutionally applied under any
circumstances.

Instead, Plaintiffs’ religious-related claims refer to how Defendants’

decision on Plaintiffs’ land use application, alone, violates RLUIPA and Plaintiffs’
constitutional rights. See, e.g., Compl., ¶¶ 166-67 (Defendants’ determinations “were
motivated by hostility toward ultra-Orthodox Jews” and they were made “during a time of
significant hostility toward ultra-Orthodox Jews from the Howell Township community.”);
¶ 234 (“The Board also concluded that a dormitory was a ‘multi-family structure’ . . .
despite the clear inconsistency of this conclusion with the Township’s [Zoning
Ordinance].”); ¶ 237 (“The Board’s determination that the dormitory component of the
proposed use was a ‘multi-family structure’ was substantially motivated by hostility and
animus toward ultra-Orthodox Jews.”); ¶ 242 (“The Board’s determination that the
proposed use was not an institutional building complex resulted from the Board’s
responsiveness to the local Howell Township community, which possesses substantial
hostility and animus toward ultra-Orthodox Jews.”); ¶ 253 (“The Board’s attempt to redefine the Plaintiffs’ proposed educational facility as, alternatively, a ‘synagogue,’ ‘multifamily housing,’ and a ‘school,’ despite the clear inconsistency between the proposed use
and such other uses, was motivated by hostility and animus toward ultra-Orthodox Jews.”).
Importantly, no allegation in the Complaint explains why the ordinance cannot be

17

constitutionally applied under any circumstance; in fact, to the contrary, Plaintiffs aver that
Defendants’ reasoning in denying them the land use permit is inconsistent with the Zoning
Ordinance. See id. at ¶ 237; see Free Speech Coalition, Inc. v. AG United States, 825 F.3d
149, 168 (3d Cir. 2016) (“facial challenge attacks the statute itself, not a particular
application . . . .” (citations and quotations omitted)); Mitchell, 652 F.3d at 405 (“[a] party
asserting a facial challenge to a statute's constitutionality must show that the statute is
unconstitutional in all of its applications.” (internal quotations and citation omitted)).
Based on the Complaint, I find that Plaintiffs have characterized this case as seeking to
vindicate their own rights, not the rights of others, and therefore, I do not find that Plaintiffs
are facially challenging the Zoning Ordinance.
Nevertheless, I find Plaintiffs’ RLUIPA claims are ripe based on other grounds. I
turn, next, to that discussion.
2. Plaintiffs’ RLUIPA Claims are Ripe
Defendants argue that Plaintiffs’ federal claims, including those raised pursuant to
RLUIPA, are not ripe. In so arguing, Defendants primarily focus on the Second Circuit’s
decision in Murphy and the Third Circuit’s opinion in Congregation Anshei. According to
Defendants, based on the reasoning in those decisions, the Board’s denial here cannot be
construed as final, because Plaintiffs could have obtained adequate relief by means of a use
variance.

Defendants maintain that Plaintiffs would not be irreparably harmed by

proceeding with a variance hearing. I do not find Defendants’ position in this regard
persuasive, and to address their arguments, I turn to the relevant case law.
In Murphy, a homeowner couple, who held prayer group meetings in their home,
received a cease and desist order from their local land use authority. Without appealing the

18

decision to the local zoning board, the Murphys filed suit under RLUIPA. On appeal, the
town argued that the Murphys’ claims were not ripe. Examining this issue, the Second
Circuit discussed the Supreme Court’s decision in Williamson. Murphy, 402 F.3d at 34849. As explained above, the Second Circuit adopted Williamson’s finality rule in the
context of RLUIPA, which has been similarly adopted by the Third Circuit, and employed
a two-step inquiry to determine whether a land use decision is final. At the first step, the
circuit court examined whether the town’s action had inflicted an immediate injury on the
plaintiffs. Id. at 150. The court answered the question in the negative, reasoning:
To support their contention on this point the Murphys assert that New
Milford could have enforced the cease and desist order through civil fines
and imprisonment, as provided for in Connecticut General Statutes section
8-12. This statute, however, does not provide New Milford with any
arresting or fining power. Rather, section 8-12 merely provides a procedure
whereby New Milford would be required to bring an action in Connecticut
Superior Court to enforce the order. Under the statute the award of fines
and imprisonment can occur only after a legal proceeding is filed (a step
never taken here), zoning violations are proven and the trial court -- in
exercising its discretion -- believes that penalties are necessary to deter
future violations. New Milford, then, plainly lacked the enforcement
authority on which the claim of immediate hardship is premised.
Murphy, 402 F.3d at 351. The court then found that the Murphys could not have claimed
an immediate injury, because an appeal to the local zoning board would have stayed the
enforcement of the cease and desist letter. Id.
In the next step, the court analyzed whether the existing record clearly defined the
plaintiffs’ injury. Id. Ultimately, the court found that “the resolution of the constitutional
and statutory claims . . . hinge[s] on factual circumstances not yet fully developed.” Id. In
brief, the Second Circuit found a large number of unanswered factual questions in the case,
and concluded that an appeal to the zoning board would have likely produced a record more
conducive to resolution of the issues at hand, particularly since the zoning board would
19

have held a hearing “to find facts and to apply the pertinent zoning regulations.” Id. at 35152.
Applying Murphy’s two step-inquiry, the Third Circuit, in Congregation Anshei,
found that a RLUIPA claim was not ripe until the plaintiff synagogue had applied for a
variance and the zoning board had issued a definitive decision on that application. In
Congregation Anshei, plaintiff synagogue was constructed before the defendant borough
adopted any zoning regulations, but subsequent zoning ordinances designated the area in
which houses of worship are permitted as a conditional use. Congregation Anshei, 338
Fed. Appx. at 215. Because the synagogue was a pre-existing structure, it continued its
operation notwithstanding the failure to comply with an after-enacted zoning ordinance.
Id. Thereafter, the plaintiff entered into a contract with a Yeshiva that allowed the
Yeshiva to conduct study and worship activities on the property. After a resident
complained to the borough, a zoning officer found that the Yeshiva’s use was permitted
as it fell within the existing synagogue use. Id. That decision was appealed to the zoning
board and the board held public hearings. After its deliberation, the board adopted a
resolution overturning the decision of the zoning officer. The board found that a Yeshiva
can be a synagogue but “the problem is that from a land use perspective, Yeshiva has
resulted in a significant increase in the intensity of the use,” and that “[a] variance is
necessary since the Yeshiva is an expansion of an already nonconforming use.” Id. at
216. Without applying for a variance, the plaintiff filed suit in federal court.
The parties, before the Third Circuit, argued whether the board had made a final
determination, consistent with Williamson’s finality rule. Id. at 217. The Third Circuit
found that the board had not entered a final determination, because the plaintiff’s

20

argument “is based on the mistaken belief that the Board determined that the Yeshiva was
not a permitted use. It did not do so. Instead, the Board determined that it may be accurate
that the Yeshiva is a function of a house of worship, but the problem was that it resulted
in a significant increase in the intensify of that use, and therefore, a variance was
necessary to consider the effect on the neighborhood.” Id. In so finding, the Third Circuit
stressed that “the Board did not determine that the Yeshiva was not a house of worship
and thereby a violation of the ordinance. The Board’s resolution speaks only to its
determination that the Yeshiva represents an intensification of use requiring a variance.”
Id. Hinged upon this distinction, the Third Circuit explained that “the factual record is
not sufficiently developed to decide fully the RLUIPA claim . . . . If the Congregation .
. . appl[ies] for a variance, the Board would develop a record to determine the potential
effect of the use, and whether (and, if yes, to what extent) the use is permitted.” Id. at
218. Moreover, the Third Circuit found that the plaintiff had not suffered any immediate
injury because “it appears the Yeshiva is still operating at the synagogue.” Id. at 219.
Here, relying on Murphy and Congregation Anshei, Defendants argue that
Plaintiffs should be directed to apply for a variance before Plaintiffs’ claims are ripe.
Defendants reason that there is a clear benefit in having the Board determine whether
Plaintiffs satisfy the criteria for a use variance, which would provide Plaintiffs with all or
some of the relief that they requested, and would result in the development of a full
administrative record on the variance issue. I find Defendants’ arguments misplaced in
light of the Third Circuit’s decision in Congregation Anshei.
At the outset, I note that although the Third Circuit in Congregation Anshei did
not explicitly adopt the Second Circuit’s two-step approach in Murphy, the court

21

nevertheless based its decision on the questions of: (1) whether an immediate injury had
been sustained; and 2) whether further development of the factual record would result in
improvements in the administration of justice.
I first examine the nature of Plaintiffs’ RLUIPA claims. As I have discussed,
supra, each of Plaintiff’s RLUIPA claim is based on the Board’s interpretation of
“Educational Facility” and the attendant “Accessory Uses” in the Zoning Ordinance, and
the Board’s determination whether Plaintiffs’ proposed use is a permitted use in light of
those interpretations. See Compl., ¶ 303 (“Defendants have deprived and continue to
deprive the Plaintiffs of their right to the free exercise of religion, as secured by RLUIPA,
by imposing and implementing land use regulations . . . that places substantial burden on
Plaintiffs religious exercise without using the least restrictive means of achieving a
compelling governmental interest.” (Count I)); ¶ 305 (alleging that Defendants have
deprived Plaintiffs’ of their right to the free exercise of religion by discriminating against
them on the basis of religion in violation of RLUIPA (Count II)); ¶ 307 (alleging that
Defendants have deprived Plaintiffs of their right to the free exercise of religion by
applying land use regulations on terms that are less than equal to nonreligious assembly
and institutional land uses (Count III)); ¶ 309 (alleging that Defendants have deprived
Plaintiffs of their right to religious freedom by implementing land use regulations in a
manner that totally excludes their religious assembly from within the jurisdiction (Count
IV)).
Indeed, under the land use statutory scheme in New Jersey, the Board possesses
the authority to hear appeals by an interested party who had been affected by any decision
of an administrative officer of a municipality. See N.J.S.A. 40:55D-70a and -72a. The

22

Board is also tasked with the final authority to interpret a zoning ordinance. See id. at
70b. In this case, to make its determinations, the Board held two public hearings, wherein
the Board heard testimony from expert witnesses — presented by both parties — who
testified extensively as to the nature of the use proposed by Plaintiffs. Indeed, the Board
heard testimony regarding, inter alia, (1) the yeshiva gedola’s educational program; (2)
the manner in which Plaintiffs intended to run such a program, including the number of
students and staff, and the hours of operation; (3) various religious uses of the property;
(4) the definition of “Education Facility” as defined by the State of New Jersey and other
municipalities; and (5) the “accessory use” and “institutional building complex”
exception under the Zoning Ordinance.

Furthermore, the Board also heard public

objections by allowing the Township’s residents to voice their strong disagreements with
Plaintiffs’ proposed project.
Armed with the information from the hearings, the Board found that, while the
non-residential component of Plaintiffs’ proposed use was permitted, the proposed
dormitories and staff housing are not permitted in the ARE-2 Zone in the Township, nor
do they fit within the exception as a public or institutional building complex. Rather, the
Board determined that the proposal essentially consisted of a school, with multi-family
structures for students, and faculty and their families, which is prohibited in the ARE-2
zone.
Defendants argue that Plaintiffs must apply for a variance so that this Court would
have a fuller factual record. I disagree, because I find that the Board has already rendered
its final decision. In Congregation Anshei, while the Third Circuit held that in order for
the plaintiff’s RLUIPA claims there to be ripe, the plaintiff must apply for a variance so

23

that the board could issue a definitive position as to the extent the Yeshiva could operate
on the synagogue’s property. Congregation Anshei, 338 Fed. Appx. at 219. In that
regard, the board would develop a factual record to determine the potential effect of the
use and whether the use is permitted under the zoning scheme. Id. Here, the facts are
clearly distinguishable. The Board rendered a definitive decision that Plaintiffs’ proposed
use of an “Educational Facility” is not a permitted use. On that issue, no further
development of the factual record is necessary, since the Board considered substantial
evidence and came to its conclusion that Plaintiffs’ proposed use of the Ford Property is
inconsistent with the Zoning Ordinance. As the Third Circuit explained, the board, in
Congregation Anshei, did not make a determination that the Yeshiva in that case was a
permitted use. Rather, the board found that the Yeshiva is indeed a function of a house of
worship — a conditional use in the zone — and that the variance process was necessary
to consider the effect on the neighborhood. Id. at 216. This distinction is significant in
this case, because the Board, here, made a final determination that Plaintiffs’ proposed
use was not a permitted use as an “Educational Facility.” Indeed, in asking Plaintiffs to
apply for a variance, the Board would not be developing additional factual record on that
already-decided issue. Instead, the variance process, in this case, would only seek to
determine whether Plaintiffs’ proposed use could be permitted by the Board to depart
from the Ordinance’s requirements.

See Puleio v. North Brunswick Tp. Bd. of

Adjustment, 375 N.J. Super. 613, 619 (App. Div. 2005). Accordingly, I find that no
further record is necessary.
I also find that based on Plaintiffs’ theory of liability under RLUIPA, Plaintiffs
have suffered an immediate injury. This element is easily satisfied since Defendants,

24

based on Plaintiffs’ allegations, were motivated by a religious animus to deprive Plaintiffs
of their right to free exercise of religion by imposing land use regulations that violate
multiple sections of RLUIPA. If true, Defendants’ alleged discriminatory conduct has
caused an immediate and tangible injury; in that, Plaintiffs were prevented from erecting
a yeshiva gedola and mesivta on the Ford Property. In that regard, to subject Plaintiffs to
an additional variance process would only seek to amplify the harm. See Israelite Church
of God in Jesus Christ, Inc. v. City of Hackensack, No. 11-5960, 2012 U.S. Dist. LEXIS
112793, at *10-11 (D.N.J. Aug. 10, 2012)(finding that the complaint alleges an
immediate injury under the Williamson finality requirement, because it contains facts
which support a finding that the plaintiff church’s religious rights were burdened by the
defendant’s land use decision). In conclusion, I find Plaintiffs’ RLUIPA claims are ripe. 11
B. Fair Housing Amendments Act Claim
In Count V, Plaintiffs allege that Defendants have intentionally discriminated
against Plaintiffs by making housing unavailable within the Township in violation of the
FHAA, 42 U.S.C. § 3604(a). Indeed, FHAA makes it unlawful to refuse to sell or rent,
or otherwise make unavailable or deny, a dwelling to any person because of race, color,
religion, sex, familial status, or national origin. 42 U.S.C.S. § 3604(a). Without regard to
whether Plaintiffs have successfully pled a FHAA claim, Defendants argue that this claim
is not ripe as strong federal policy considerations require this Court to defer to the final
decision-making responsibilities of the local governmental authorities. In support of their

11

I note that both parties’ briefing presented merit-based arguments that are more
appropriate for a motion to dismiss for failure to state a claim or for summary judgment.
Because, on this motion, I am only deciding issues related to ripeness, I make no comments
on the sufficiency of Plaintiffs’ pleadings or whether Plaintiffs’ claims ultimately have
merit.
25

position, Defendants refer this Court to the Third Circuit’s decision in Lapid-Laurel v.
Zoning Bd. of Adjustment, 284 F.3d 442 (3d Cir. 2002). But, that case did not deal with
ripeness issues in the context of the FHAA. In fact, in that opinion, the Third Circuit
specifically stated that it was “not presented with and [did] not reach questions of ripeness
or exhaustion . . . .” Id. at 452 n.5. Rather, the Third Circuit determined that “courts
hearing reasonable accommodations challenges [in the context of FHAA] should
ordinarily limit their review to the administrative record” developed before the local land
use boards. See id. at 451.
I note that although the Third Circuit did not decide any ripeness issues in LapidLaurel, the court did, however, explain approvingly the Seventh Circuit’s approach to
determine ripeness questions in the context of FHAA. See id. at 452 n.5. In United States
v. Village of Palatine, 37 F.3d 1230 (7th Cir. 1994), the Seventh Circuit reviewed an FHAA
reasonable accommodations challenge to a local ordinance for which the plaintiff had not
sought a variance. While the court there held that the claim was not ripe, and that in
general, a city must be afforded the opportunity to make the requested accommodation, see
id. at 1233, the court, nevertheless, limited that ripeness rule to reasonable accommodations
claims, and noted that “if the plaintiff's claim were of discriminatory intent, rather than
failure to make a reasonable accommodation, the claim might well be presently ripe even
though [the plaintiff] has not sought a special use approval.” Id. at 1233 n.3.
Here, Plaintiffs’ FHAA claims are discrimination-based, i.e., religious animus.
Thus, once the Board has allegedly made the discriminatory decision that Plaintiffs’
proposed use is not a permitted use under the Zoning Ordinance, Plaintiffs’ FHAA claim
became ripe, and Plaintiffs are not required to seek a variance before bringing that claim.

26

See id. at 1233 n.3; Oxford House-A v. City of Univ. City, 87 F.3d 1022, 1024-25 (8th Cir.
1996); Torres v. Franklin Twp., No. 09-6282, 2011 U.S. Dist. LEXIS 148296, at *5 (D.N.J.
Dec. 22, 2011) (“while most [FHAA] reasonable accommodations claims must first be
presented to local land use boards, claims of discriminatory intent or discriminatory impact
are ripe even where approvals have not been sought.” (citations and quotations omitted));
United States v. City of New Orleans, No. 12-2011, 2012 U.S. Dist. LEXIS 173177, at *3,
*5 (E.D. La. Dec. 6, 2012) (holding that intentional discrimination claim under FHAA ripe
even though city defendant ultimately granted the variance).
C. § 1983 Claims
In Counts VI – VII, Plaintiffs assert § 1983 claims under the First Amendment Free
Exercise and Equal Protection Clauses of the Constitution. As I discussed, supra, the Third
Circuit has incorporated the Williamson finality rule to these types of constitutional claims.
See Congregation Anshei, 338 Fed. Appx. at 217 (adopting the Williamson finality rule to
Free Exercise Clause); Taylor Inv.,, 983 F.2d at 1291 (applying the finality rule to equal
protection claims under § 1983). Therefore, for the same reasons why Plaintiffs’ RLUIPA
claims are ripe, Counts VI and VIII are also ripe for litigation.
In Count VIII, Plaintiffs assert a First Amendment Free Speech claim. Plaintiffs
allege that in the absence of objective criteria and the definition of the term “Educational
Facility,” Defendants were “unconstitutionally afforded unbridled discretion during their
review of the Plaintiffs’ application to build and operate a mesivta and yeshiva gedola” on
the Ford Property. Compl., ¶ 322. In that regard, Plaintiffs allege that the manner in which
Defendants have applied the Zoning Ordinance “constitutes an impermissible prior
restraint on Plaintiffs’ protected religious expression under the First Amendment.” Id. at

27

¶ 323. To determine whether this claim is ripe, the Court must use a separate standard than
the Williamson finality rule. See Stockham Interests, LLC v. Borough of Morrisville, No.
08-3431, 2008 U.S. Dist. LEXIS 93152, at *13-14 (E.D. Pa. Nov. 12, 2008)(“the Third
Circuit has never subjected an ‘as applied’ free speech claim to the finality rule”).
The ripeness inquiry of a Free Speech claim requires a court to consider the
following factors: (1) “the parties are in a ‘sufficiently adversarial posture to be able to
present their positions vigorously,’” (2) “the facts of the case are ‘sufficiently developed
to provide the court with enough information on which to decide the matter conclusively,’”
and (3) “a party is 'genuinely aggrieved so as to avoid expenditure of judicial resources on
matters which have caused harm to no one.’” Khodara Envtl., Inc. v. Blakey, 376 F.3d 187,
196 (3d Cir. 2004) (quoting Peachlum v. City of York, 333 F.3d 429, 433-34 (3d Cir.
2003)). Speech regulations often pose special difficulties for parties wishing to a present
a live controversy, advanced in a “clean-cut and concrete form,” see Renne v. Geary, 501
U.S. 312, 322 (1991) (quoting Rescue Army v. Mun. Court of L.A., 331 U.S. 549, 584
(1947)). Therefore, First Amendment challenges require relaxation of the ripeness inquiry,
for “unconstitutional statutes or ordinances tend to chill protected expression among those
who forbear speaking because of the law’s very existence.” Peachlum, 333 F.3d at 435.
Here, Plaintiffs Free Speech claim clearly meets the relaxed ripeness inquiry. As
to the second and third factors, I have already determined, albeit in a different context, that
Plaintiffs have suffered an immediate injury and that the record is sufficiently developed
to assist the Court in adjudicating Plaintiffs’ claims. Consistent with those findings, I find
here, that Plaintiffs are genuinely aggrieved by the alleged actions of Defendants, and that
the facts of this case are substantially developed such that this Court has sufficient

28

information to adjudicate Plaintiffs’ Free Speech claim. Finally, as to the first factor, I find
that the parties are “sufficiently adversarial,” particularly since Plaintiffs allege that
Defendants harbor hostility towards the ultra-Orthodox Jewish faith. See Compl., ¶ 257.
Furthermore, because Plaintiffs’ non-First Amendment claims are intertwined with their
Free Speech claim, judicial economy concerns dictate that they all be handled together in
one proceeding. See Peachlum, 333 F.3d at 440 n.11.
D. State Law Claims
The bulk of Defendants’ ripeness arguments focuses on Plaintiffs’ federal claims.
As to Plaintiffs’ state law based claims, Defendants argue that because the federal claims
are not ripe, this Court should decline to exercise supplemental jurisdiction over the
remaining state claims, i.e., Count IX (Action in Lieu of Prerogative Writ); Count X (New
Jersey Law against Discrimination); and Count XI (New Jersey Constitution, Article 1, ¶¶
1, 3). Because I find Plaintiffs federal claims are ripe, I will exercise pendant jurisdiction
over Plaintiffs’ state law claims.
Finally, aside from their ripeness arguments, Defendants contend, in a cursory
manner, that Plaintiffs’ prerogative writ claim, i.e., Count IX, should be dismissed for
failure to exhaust administrative remedies, because Plaintiffs have not sought a variance.
Plaintiffs’ only response is that because they are mounting a facial challenge to the Zoning
Ordinance, they are exempted from applying for a variance before filing suit. 12
It is well-settled that in New Jersey, a landowner who wishes to challenge the
validity of an ordinance as applied must exhaust administrative remedies by seeking a
variance before initiating an action at law. Griepenburg v. Township of Ocean, 220 N.J.

12

I stress that neither party briefed this issue adequately.
29

239, 260-61 (2015).

New Jersey Court Rule 4:69-5 imposes a duty to exhaust

administrative remedies before initiating actions at law “[e]xcept where it is manifest that
the interest of justice requires otherwise.” This requirement is “a rule of practice designed
to allow administrative bodies to perform their statutory functions in an orderly manner
without preliminary interference from the courts.” Brunetti v. Borough of New Milford, 68
N.J. 576, 588 (1975). Hence, there is “a strong presumption favoring the requirement of
exhaustion of remedies.” Griepenburg, 220 N.J. at 261 (citations and quotations omitted).
Whether a plaintiff must exhaust administrative remedies by seeking a variance
generally turns on whether the plaintiff is challenging a zoning ordinance “as-applied” to
particular property or otherwise seeking to invalidate the ordinance in its entirety. See Deal
Gardens, Inc. v. Board of Trustees, 48 N.J. 492, 496-98 (1967).

As to the latter,

invalidation of an ordinance in its entirety commonly presents a question of law that does
not involve administrative expertise or review before it is adjudicated. As such, exhaustion
is not required. See Reeves v. Twp. of Marlboro, No. A-2781-10T4, 2012 N.J. Super.
Unpub. LEXIS 1398, at *11 (App. Div. Jun. 18, 2012). However, when the landowner
only claims that an ordinance is “arbitrary and unreasonable in its application to the owner's
land, and relief in that circumstance may be obtained from a local board of adjustment, the
trial court should ordinarily decline to adjudicate an attack upon the ordinance until after
the owner has exhausted his remedy to seek relief from the local board of adjustment[.]”
Conlon v. Bd. of Pub. Works, Paterson, 11 N.J. 363, 370 (1953).
Nevertheless, “[e]xceptions are made when the administrative remedies would be
futile, when irreparable harm would result, when jurisdiction of the agency is doubtful, or
when an overriding public interest calls for a prompt judicial decision.” N.J. Civil Serv.

30

Ass'n v. State, 88 N.J. 605, 613 (1982) (citing Garrow v. Elizabeth Gen. Hosp. &
Dispensary, 79 N.J. 549, 561 (1979)).
Here, under New Jersey law, Plaintiffs must exhaust their prerogative writ claim by
first seeking a variance before filing suit. In Count IX, Plaintiffs allege that “[t]he actions
of the Board were arbitrary, capricious, unreasonable and contrary to law.” Compl., ¶ 326.
Plaintiffs further complain that “[t]he decisions of the Board were based on conclusions
contrary to the weight of the evidence adduced at public hearings and the Board failed to
place its reasons for the denial on the record.” Id. at ¶ 336. Due to the nature of these
allegations, consistent with my prior findings, see supra, regarding Plaintiffs’ federal
claims, this prerogative writ similarly challenges the Zoning Ordinance as applied.
Accordingly, Plaintiffs’ argument on the exhaustion issue, i.e., that they are facially
challenging the Zoning Ordinance, is misplaced.
Next, as to the question whether Plaintiffs are exempted from exhaustion, I have no
basis to find, on this record, that Plaintiffs would not be compelled to apply for a variance.
Indeed, Plaintiffs did not present any evidence that either irreparable harm would result, or
that an overriding public interest calls for a prompt judicial decision. In fact, Plaintiffs do
not make any of those exemption-related arguments as to Count IX. Therefore, without
demonstrating any basis for exemption, Plaintiffs must proceed with the variance process
before filing their prerogative writ claim in court. I note that as to the other state law
claims, which are premised upon religious discrimination, exhaustion is not required under
state law, and similarly, no exhaustion requirements exist for the federal claims. Those
claims will proceed here.

31

CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part
and DENIED in part. The Court finds that Plaintiffs’ federal claims, i.e., Counts I-VIII,
are ripe, and with respect to state law claims asserted in Counts X and XI, the Court will
exercise supplemental jurisdiction. However, Plaintiffs must exhaust their administrative
remedies as to Count IX, action in lieu of prerogative writ; therefore, Count IX is dismissed
without prejudice.

Date: February 16, 2017

/s/ Freda L. Wolfson
FREDA L. WOLFSON, U.S.D.J.

32