GARDEN STATE ISLAMIC CENTER v. VINELAND et al, No. 1:2017cv01209 - Document 26 (D.N.J. 2018)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/12/2018. (rtm, )
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GARDEN STATE ISLAMIC CENTER v. VINELAND et al Doc. 26 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY GARDEN STATE ISLAMIC CENTER, : : : : : : : : : : : Plaintiff, v. CITY OF VINELAND, DALE J ONES, GARY LUGIANO, CARMEN DI GIORGIO, and J OHN and J ANE DOES 1-20 , Defendants. Hon. J oseph H. Rodriguez Civil Action No. 17-120 9 OPINION This m atter com es before the Court on Motion to Dism iss of Defendants Carm en Di Giorgio, Dale J ones, Gary Lugiano, and City of Vineland pursuant to Fed. R. Civ. P. 12 (b)(6). The United States of Am erica filed a Statem ent of Interest on Septem ber 5, 20 17. The Court granted the parties’ request to adjourn the m otion and set a briefing schedule. Oral argum ent was heard on March 14, 20 18. For the reasons stated on the record that day, as well as those set forth below, Defendants’ m otion is denied. I. Background Garden State Islam ic Center brings a claim against Defendants arising out of its construction of a m osque in Vineland, New J ersey. Garden State Islam ic Center (“GSIC”) is a New J ersey, not for profit, 50 1(c)(3) tax exem pt corporation, whose prim ary purpose is to receive, adm inister, invest and distribute funds for scientific, educational and charitable purposes. The Com plaint alleges that the Defendants engaged in unlawful discrim inatory practices to frustrate GSIC’s ability to exist through a series of predatory actions which continued from the approval of the construction of the GSIC building and m osque through GSIC’s present day existence in a m anner which 1 Dockets.Justia.com im pedes GSIC’s ability to serve its com m unity and dim inishes the use of the building. The Com plaint sets forth, in detail, the nature of the actions taken, which include withholding perm it approvals and a final certificate of occupancy in addition to assessing tax liens against GSIC, despite its exem ption as a religious institution. The City’s continued denial of the Certificate of Occupancy is allegedly related to GSIC exceeding the output contem plated by the septic system perm it. In general term s, the septic system perm it was granted based upon the inform ation included in the initial plans subm itted. Once GSIC was built, the City inspected GSIC and claim s it discovered that the building contained additional uses that were not previously identified in the approved original plans. The additional uses in the new plan and re-design of GSIC caused the contem plated water flow values to increase to a point where the com bined flow m andated New J ersey Departm ent of En vironm ental Protection scrutiny. In other words, because of the allegedly altered design and the City’s determ ination that the redesign increased the output of the septic-system , the City declared that it could not issue a Certificate of Occupancy until GSIC could secure a “flow determ ination” from the NJ DEP’s Bureau of Non-Point Pollution Control. Currently GSIC is operating in a lim ited m anner under the authority of a tem porary certificate of occupancy and the Defendants have not m oved to collect the assessm ent of taxes, but the tax bill rem ains due. Plaintiffs allege violations of the Religious Land Use and Institutionalized Persons Act of 20 0 0 (“RLUIPA”), 42 U.S.C. § 1983, the New J ersey Civil Rights Act and the New J ersey Law Against Discrim ination. Plaintiffs bring claim s under the Religious Land Use and Institutionalized Persons Act of 20 0 0 (“RLUIPA”), 42 U.S.C. §§ 20 0 0 cc et seq. (Counts I, II), and related claim s under 42 U.S.C. § 1983 for violations of the First and Fourteenth Am endm ents (Counts 2 IV, VI). Of the m any issues raised by the City in favor of dism issal, the principal issue to be decided is whether this m atter is ripe for adjudication in light of the City’s contention that GSIC has not exhausted its adm inistrative rem edy with the New J ersey Departm ent of Environm ental Protection (“NJ DEP”). II. Standards of Review A. Federal Rule of Civil Procedure 12 (b) (6) Under Rule 12(b)(6), a com plaint m ay be dism issed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a m otion to dism iss on the pleadings, courts “accept all factual allegations as true, construe the com plaint in the light m ost favorable to the plaintiff, and determ ine whether, under any reasonable reading of the com plaint, the plaintiff m ay be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 20 0 8) (quotations om itted). Under such a standard, the factual allegations set forth in a com plaint “m ust be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twom bly, 550 U.S. 544, 555 (20 0 7). Indeed, “the tenet that a court m ust accept as true all of the allegations contained in a com plaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9). “[A] com plaint m ust do m ore than allege the plaintiff's entitlem ent to relief. A com plaint has to ‘show’ such an entitlem ent with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 20 3, 211 (3d Cir. 20 0 9). B. The Religious Land Use and Institutionalized Persons Act of 20 0 0 , 42 U.S.C. § 20 0 0 cc et seq., “RLUIPA” Congress enacted RLUIPA “ ‘in order to provide very broad protection for religious liberty.’ ” Holt v. Hobbs, – – – U.S. – – – – , 135 S. Ct. 853, 859, 190 L.Ed.2d 747 (20 15) (quoting Burwell v. Hobby Lobby Stores, Inc., – – – U.S. – – – – , 134 S. Ct. 2751, 2760 , 189 L.Ed.2d 675 (20 14)). RLUIPA provides, in pertinent part: 3 No governm ent shall im pose or im plem ent a land use regulation in a m anner that im poses a substantial burden on the religious exercise of a person, including a religious assem bly or institution, unless the governm ent dem onstrates that im position of the burden on that person, assem bly, or institution ... (A) is in furtherance of a com pelling governm ental interest; and (B) is the least restrictive m eans of furthering that com pelling governm ental interest. 42 U.S.C. § 20 0 0 cc(a)(1). GSIC, as a plaintiff in a RLUIPA claim , “has the initial burden of dem onstrating that the land use regulation ‘actually im poses a substantial burden on religious exercise.” Muslim Ctr. of Som erset Cty., Inc. v. Borough of Som erville Zoning Bd. of Adjustm ent, No. SOM-L-1313-0 4, 20 0 6 WL 1344323, at *6 (N.J . Super. Ct. Law Div. May 16, 20 0 6). Upon such a showing, the burden shifts to the City to show that the challenged regulation “is in furtherance of a com pelling governm ental interest” and “is the least restrictive m eans of furthering” that interest. Id. Although RLUIPA does not define “substantial burden,” several courts note that “[t]he goal of the substantial burden provision is to com bat[ ] subtle form s of discrim ination by land use authorities that m ay occur when a state delegates essentially standardless discretion to nonprofessionals operating without procedural safeguards.” Hunt Valley Baptist Church v. Baltim ore County, Maryland, 20 17 WL 480 1542 at *24 (quoting Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Com m 'n, 768 F.3d 183, 196 (2d Cir. 20 14) (quoting Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 90 0 (7th Cir. 20 0 5)) (internal citations om itted)). The substantial burden claim “does not require a showing of discrim inatory governm ental conduct.” Andon, LLC v. City of Newport News, Va., 813 F.3d 510 , 514 (4th Cir. 20 16); Bethel World Outreach Ministries v. Montgom ery Cty. Council, 70 6 4 F.3d 548, 557 (4th Cir. 20 13) (recognizing that substantial burden provision protects against both discrim inatory and non-discriminatory conduct that im poses a substantial burden on religion). To state a substantial burden claim , a plaintiff “m ust show that a governm ent's im position of a regulation regarding land use, or application of such a regulation, caused a hardship that substantially affected the plaintiff's right of religious exercise.” Andon, 813 F.3d at 514; see also 146 Cong. Rec. S7, 774– 0 1, 20 0 0 WL 10 79346, at *S7777 (“It is im portant to note that RLUIPA does not provide a religious assem bly with im m unity from zoning regulation.”) Plaintiffs argue that “[i]nvidious m otive is not a necessary elem ent,” but rather “[a]ll you need is that the state actor m eant to single out a plaintiff because of the protected characteristic itself.” (Id. at 15 (quoting Hassan v. City of New York, 80 4 F.3d 277, 297 (3d Cir. 20 15)).) The land-use provisions of RLUIPA are structured to create a clear divide between claim s under section 2(a) (the Substantial Burdens section) and section 2(b) (the Discrim ination and Exclusion section, of which the Equal Term s [P]rovision [and also the Nondiscrim ination Provision are] a part). Since the Substantial Burden[s] section includes a strict scrutiny provision and the Discrim ination and Exclusion section does not, we conclude this “disparate exclusion” was part of the intent of Congress and not an oversight. Id. (citing Russello v. United States, 464 U.S. 16, 23, 10 4 S. Ct. 296, 78 L. Ed.2d 17 (1983)). RLUIPA's first section (“Substantial Burdens Provision”) prohibits land use regulations that substantially burden the exercise of religion unless the governm ent action can survive a strict scrutiny analysis. 42 U.S.C. § 20 0 0 cc(a)(1)– (2); see also Lighthouse Inst. for Evangelism , Inc. v. City of Long Branch, 510 F.3d 253, 269 (3d Cir. 20 0 7) (“[T]he Substantial Burden[s] section includes a strict scrutiny provision.”). The second section of RLUIPA prohibits discrim ination and im perm issible exclusion on the 5 basis of religion by prohibiting three distinct types of regulations: (1) land use regulations that treat a “religious assem bly or institution on less than equal term s with a nonreligious assem bly or institution” (“Equal Term s Provision”); (2) land use regulations that “discrim inate[ ] against any assem bly or institution on the basis of religion or religious denom ination” (“Nondiscrim ination Provision”); and (3) land use regulations that “totally exclude[ ] religious assem blies from a jurisdiction,” or “unreasonably lim it[ ] religious assem blies, institutions, or structures within a jurisdiction” (“Exclusions and Lim its Provision”). 42 U.S.C. § 20 0 0 cc(b)(1)– (3). Plaintiffs' instant Motion, as to Count Three, arises under the Nondiscrim ination Provision. Islam ic Soc'y of Basking Ridge v. Twp. of Bernards, 226 F. Supp. 3d 320 , 341 (D.N.J . 20 16). III. Analysis The Court finds that Plaintiff has m et its burden that this m atter is ripe for adjudication. Plaintiff’s com plaint alleges discrim ination the form of the im position of a land use regulation that im poses a substantial burden on GSIC’s religious exercise in violation RLUIPA, the New J ersey Law Against Discrim ination, the New J ersey Civil Rights Act, the First and Fourteenth Am endm ents, New J ersey Constitution, and New J ersey’s Municipal Land Law. See Com pl. Generally, Counts I-XI. A. Ripeness The Court first addresses the Defendants’ prim ary issue of whether the claim s are ripe for consideration. This inquiry considers whether the “conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93, 65 S. Ct. 1483, 1487, 89 L. Ed. 20 72 (1945). Whether a 6 case is ripe for justiciability is a prerequisite to the court’s exercise of jurisdiction. Nextel Com m unications of the Mid– Atlantic, Inc. v. City of Margate, 30 5 F.3d 188, 192 (3d Cir. 20 0 2). “The function of the ripeness doctrine is to determ ine whether a party has brought an action prem aturely, and counsels’ abstention until such tim e as a dispute is sufficiently concrete to satisfy the constitutional and prudential requirem ents of the doctrine.” Peachlum v. City of York, Pennsylvania, 333 F.3d 429, 433 (3d Cir. 20 0 3) (citations om itted). “The ripeness doctrine prevents judicial interference until an adm inistrative decision has been form alized and its effects felt in a concrete way by the challenging parties.” Lauderbaugh v. Hopewell Twp., 319 F.3d 568, 575 (3d Cir. 20 0 3). Plaintiff bears the burden of establishing that a m atter is ripe for adjudication by showing a specific present objective harm or the threat of specific future harm . Laird v. Tatum , 40 8 U.S. 1, 14 (1972). “A claim is not ripe for adjudication if it rests upon contingent future events that m ay not occur as anticipated, or indeed m ay not occur at all.” Texas v. United State, 523 U.S. 296, 30 0 (1998) (internal citations om itted). Here, Plaintiff m ust show that it has suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or im m inent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 50 4 U.S. 555, 560 (1992) (internal citations om itted). The ripeness argum ent here is intertwined with the Court’s consideration of the cognizability of Plaintiffs’ claim s under RLUIPA. The claim s are ripe because the Court concludes that the sewage perm itting issue, as plead, m akes out a claim that the perm it “issue” is really a pre-text for discrim ination. The fact that a final decision on the m erits of the water flow and sewage perm it has not been m ade because the m atter has been 7 referred for determ ination by the EPA does not render the discrim inatory use of that process by the City unripe. To the contrary, the issuance of a final decision being held in abeyance is the very essence of the claim : that the invocation of the process was done with intent to frustrate GSIC’s existence. In a factually sim ilar case, Cnty. of Culpeper, Virginia, 245 F. Supp. 3d at 764– 65, the district court considered the ripeness of a claim under RLUIPA where the Islam ic Center of Culpeper’s (ICC) attem pt to build a m osque was frustrated by a perm itting process. There, the town board had yet to issue a final decision on the perm it application on grounds that the perm it application was “insufficient[.]” United States v. Cty. of Culpeper, Virginia, 245 F. Supp. 3d 758, 764– 65 (W.D. Va. 20 17). The board further alleged that the deficiencies in the application m ade it “incum bent upon the ICC to resubm it an application (or explore som e other m ethod) rather than sue.” Id. The Court disagreed holding that the claim s were ripe despite the lack of a final decision in the actual perm it application because it was the disparate use of the application process that form ed the basis for the RLUIPA claim . In addition, the County’s argum ent was deem ed specious in light of the fact that it had previously stated on the record that the ICC's application did satisfy all state and local requirem ents. The court further noted as com pelling “the low showing required for perm it approval in the past; the historically high approval rate, including to other com m ercial and religious entities; the atypical delay in considering the ICC's initial application; the statem ents by County officials that the ICC's application received heightened scrutiny; the County Adm inistrator's prepared rem arks that the ICC's application satisfied state law and local practice, and; anti– Muslim com m ents and pressure directed at Board m em bers before their vote.” Id. at 765-66. 8 The district court concluded that the m atter was ripe because the process im pacted ICC’s ability to build a m osque and/ or caused “significant delay and added expense to that effort, either of which flowed from a purportedly discrim inatory decision that substantially burdens the ICC's religious exercise.” Id. “A reasonable fact-finder could conclude that the denial was not based on an insufficient application or other good-faith reasons, but rather on anti– Muslim prejudice that would not evaporate sim ply by resubm itting a new application.” Id. at 765 (citing Moore– King v. Cty. of Chesterfield, Va., 819 F.Supp.2d 60 4, 615– 17 (E.D. Va. 20 11) (explaining that William son County did not apply when facts indicated what would occur if plaintiff pursued additional procedures), aff'd, 70 8 F.3d 560 (4th Cir. 20 13); Bikur Cholim , Inc. v. Vill. of Suffern, 664 F.Supp.2d 267, 274– 75 (S.D.N.Y. 20 0 9) (holding that RLUIPA claim ant need not avail itself of additional procedures if they would be “futile” and that court need only locate “a final, definitive position from a local authority” for ripeness)). GSIC’s Com plaint sets forth an alm ost identical predicam ent as that faced by ICC in Culpeper. In support of its ripeness argum ent, GSIC proffers as follows: 1. No other secular or religious group has had these requirem ents im posed upon them by Vineland. 2. No other secular or religious group has had these water flow calculations im posed upon them as Vineland has im posed on GSIC. 3. No other secular or religious group has had their pre-approved septic perm it unilaterally rescinded after it was issued and after construction was com plete without an y due process. 4. No other secular or religious group has had their certificate of occupancy withheld in this fashion. 5. The water flow calculation requirem ents im posed by the Defendants is a novel way to use a land use regulation to unlawfully deny GSIC its lawful existence on the land. 6. In essence, Vineland was using false inform ation and discrim inatory 7. Indeed, a sim ilarly situated Christian Church was not subject to the sam e requirem ents, and in fact, received m ore favorable treatment. 9 8. Upon inform ation and belief, the Cum berland County Departm ent of Health has within the last 18 m onths approved a septic system for the “All The Nations Assem bly Church of God”, located at 659 Landis Avenue in Deerfield Township, Cum berland County, which is a substantially larger facility than GSIC’s house of worship/ religious education building that can seat 470 people, also contains classroom s, a nursery, offices and has an area identified as a “future kitchen” as indicated on the approved building plans for that church. 9. This Church based its septic flows on a calculation of 3 gallons per day, which calculation was accepted by the Cum berland County Departm ent of Health and this Church was thus not required to obtain a NJ PDES Perm it and a septic perm it was issued locally by the County. 10. This Church also has a full tim e nursery and daycare, kitchen, Sunday school, kitchen, and 50 0 m em bers, but was still adjudicated to have less than 2,0 0 0 gallons per day waste and perm itted to use a septic system without State involvem ent or waste m anagem ent system s. 11. GSIC, on the other hand, with less than half as m any occupants, no daily school or nursery, and a Sunday school attended by a handful of children, a sim ple warm ing kitchen, was determ ined by the Defendants have a water usage of over 3,0 0 0 gallons per day, requiring State involvem ent, a waste m anagem ent plan and treatm ent facility. See Com pl., ¶¶ 10 4-110 . For these reasons, GSIC claim s that the Defendants’ actions are discrim inatory in nature and are intended to prevent the GSIC from perm anently opening and operating its house of worship/ religious education building through the discrim inatory application of land use regulations, in violation of the Religious Land Use and Institutionalized Persons Act of 20 0 0 , 42 U.S.C. 20 0 0 cc, et seq. (“RLUIPA”) and the Constitutions of the United States and New J ersey. Plaintiff alleges that the City continually changed the requirements for the septic system , which they previously approved, for discrim inatory purposes. That claim exists independent of whether the City retains current jurisdiction over the alleged septic flow issue and is ripe for consideration. 10 B. The Com plaint Sets Forth a Cognizable Claim under RLUIPA There are several issues attendant with the Court’s consideration of whether the Com plaint sets forth a cognizable claim under RLUIPA. First, the Court finds that the City’s application of the sewage perm it process qualifies as a “land use” regulation that “lim its or restricts” GSIC’s functionality and use of its land within the m eaning of RLUIPA, 42 U.S.C. §20 0 0 cc-5(5). Under RLUIPA, a “land use regulation” is “a zoning or landm arking law ... that lim its or restricts a claim ant's use or developm ent of land (including a structure affixed to land), if the claim ant has a ... property interest in the regulated land ...” Id. at § 20 0 0 cc– 5(5). Thus, “a governm ent agency im plem ents a ‘land use regulation’ only when it acts pursuant to a ‘zoning or landm arking law’ that lim its the m anner in which a claim ant m ay develop or use property in which the claim ant has an interest.” Prater v. City of Burnside, 289 F.3d 417, 434 (6th Cir. 20 0 2). Second Baptist Church of Leechburg v. Gilpin Twp., Pennsylvania, 118 F. App'x 615, 617 (3d Cir. 20 0 4). Much like the facts set forth in Cnty. of Culpeper, Va., ---F. Supp.3d---, No. 160 0 0 83, 20 17 WL 1169767, the present Com plaint details that GSIC’s attem pt to build a m osque in the City was m et with procedural hurdles at every step. See Com pl. at ¶ 17. Initially, the site plan was rejected by the City’s Planning Board causing GSIC to initiate a lawsuit seeking the reversal of the denial. Id., ¶ 18. The litigation settled and on J anuary 12, 10 22, the final m ajor site plan was approved by the City. Id., ¶ 20 . The site plan contem plated “a three-level, 61,540 square foot house of worship consisting of: a) a 9,563.25 square foot basem ent level containing a bathroom , kitchen, m echanical room and storage space; b) a 30 ,30 4.45 square foot first floor level containing a m en’s prayer hall, wom en’s prayer halls, m ulti-purpose hall, library, m edia room s and various 11 m eeting room s and offices; and c) a 21,670 .45 square foot second floor level containing m ultiple lecture rooms, offices, a library, m eeting room and other m iscellaneous space on the Property (the “20 11 Site Plan Approval”).” Id., ¶ 20 . The seating capacity of GSIC accom m odated 220 persons. Id., ¶ 21. Before construction began, the param eters of the building were reduced by GSIC. GSIC sought and obtained an adm inistrative site plan approval from the City which rem oved the basem ent level all together and reduced the square footage of the floor plans significantly. Id., ¶ 23. This new site plan (the “20 12 Am ended Site Plan Approval”), is the blueprint of the building that actually exists today and, unlike the 65,140 square foot building approved in 20 11, the current building is only 8,393 square feet. Id., ¶ 24. Against this backdrop, the Com plaint alleges that the septic system issue was created out of whole cloth in an attem pt to frustrate GSIC’s existence and functionality. The septic system perm it the City issued as to the 20 11 Site Plan was designed to accom m odate a m axim um sanitary sewage flow capacity of 3,0 0 0 gallons per day. Id., ¶ 25. GSIC alleges that the current building’s anticipated sewage flow is estim ated to be approxim ately 150 0 gallons per day; far less than that approved by the City in 20 11. In late 20 12, GSIC’s contractor received an approval letter from the City advising that the septic system was “inspected and approved” as per the land use codes and regulations. Id., ¶ 27. After the City issued the tem porary certificate of occupancy, GSIC began, in early Spring 20 16, the process of pursuing perm its for an additional second floor level structure anticipated to have the sam e square footage of the existing building. Id., ¶¶ 2829. The uses identified for the addition are alleged to be sim ilar in usage to the 20 11 Site 12 Plan and consisted of several room s including locker and toilet room s, but no showers. Id., ¶¶ 31-34. However, GSIC received a letter from the City regarding the septic system for the addition. The findings of the City appeared to be grounded upon a m isunderstanding that the “original septic system was designed for a 50 0 seat m osque[]” and that the proposed locker room s included showers. Id., ¶¶ 33-37. The existing structure rem ained at a capacity of 220 seats despite the proposed addition, not 50 0 seats. The letter concludes by stating that the City “belie[ves] that the addition causes the original septic system design capacity to exceed that perm itted and required GSIC obtain a “flow determ ination” from the New J ersey Departm ent of Environm ental Protection’s Bureau of Non-Point Pollution Control.” Id., ¶ 38. Because of this determ ination, GSIC is unable to obtain a final Certificate of Occupancy, despite m any attem pts to disprove the City’s flow determ inations by providing evidence in the form of letters from industry professionals, com m on sense m ath applications, and blueprints showing that its septic system did not exceed 1,50 0 gallons 1 or exceed the use in the approved septic system for which the City issued a perm it. Id., ¶¶ 40 -43. GSIC and its contractors supplied proof that the building did not exceed the flow values which trigger State review. The City also engaged in m eetings and conversations related to the issue but did not include anyone on behalf of GSIC and, in these occurrences, continued to m ischaracterize significant facts related to the usage of the proposed space and the plans previously approved by the City in 20 11. Id., ¶¶ 48-53. 1 According to the Complaint, a flow of 2,ooo gallons triggers State review. 13 GSIC’s project architect David Manders’ letter to Vineland City Health Departm ent Director Dale J ones details the anom alies used by the City in its determ ination. In that e-m ail, Mr. Manders states: “There is a m isconception in these docum ents that needs to be rem edied, and it is as follows: What exists at the site is a two-story building with a footprint of 8,393.12 square feet. There is no basem ent. The first floor is finished and the applicant is seeking to finish the second floor. The num bers outlined in Gary Lugiano’s em ail of April 21, 20 16 do not reflect at all what is built or what the applicant has sought building departm ent approval for. The applicant is seeking approval to finish the second floor of this building only. If (and when) the applicant seeks to do additional construction, perm its and approvals will need to be obtained. Our position is sim ple…to determ ine if the septic system that was installed previously is sufficient to allow for the finishing of the second floor in conform ance with the docum ents prepared by our office. It is not the applicant’s desire to construct the 61,538.15 sf building noted in Gary’s em ail. While the approved site plan indicates a building of this m agnitude, the applicant has not sought approval for perm its to construct this building (which was projected to be accomplished in m ultiple phases and m ay or m ay not ever be built). The applicant fully realizes that any future applications for building additions will m ost likely require an upgrading of the current septic system . I would hope that this clarification finds its way to the NJ Departm ent of Environm ental Protection so that a determ ination can be m ade based on the actual conditions that exist and are proposed. As always, please do not hesitate to contact m e with any questions. Id., ¶ 57. Despite this letter, the City continued to challenge the flow calculations using erroneous inform ation in support of its conclusion that State review was warranted. GSIC argues that the m isinform ation upon which the City based its findings, coupled with the “arbitrary” flow calculations the City ascribed to the building evidence discrim ination in the form of a RLUIPA violation. GSIC contends it is being “held to higher standards for the septic system than was in the plans, previously approved by Vineland, sim ply to discrim inate against them and prohibit their lawful expansion. GSIC argues that the m isinform ation upon which the City based its findings, coupled with the 14 “arbitrary” flow calculations the City ascribed to the building evidence discrim ination in the form of a RLUIPA violation. Id., ¶¶ 53-56. By characterizing the flow calculations in a m anner which com pels State review, the City is forcing GSIC to incur additional expenses and engage in additional expenses associated with that process, delay the full enjoym ent of GSIC, and to keep GSIC under its thum b. Id., ¶¶ 69. Likewise, if GSIC does not challenge the State on review, the costs associated with the installation and m aintenance of a waste water treatm ent facility is a prohibitively expensive proposition which further serves to frustrate the GSIC’s utility. As a result, GCIS contends that the City’s tactics associated with the septic system perm it process in the land use of GCIS’s property is discrim inatory and burdensom e and evidences an effort to deny GSIC the perm its needed to grow their facility. Id., ¶¶ 70 -87. Construing the language of RLUIPA broadly, because the sewage regulation at issue is incorporated by reference into the City’s Land Use Ordinance, it qualifies as a zoning law. §425-1 to -371. To hold otherwise would put form over function. As in Cnty. of Culpeper, VA., the perm it here is granted as a m atter of course and was previously approved for a building of greater capacity and function. The County of Culpeper’s denial of a routine perm it left the district court with the im pression that the denial was based on religious hostility. In reaching its conclusion that the perm it in Culpeper fits within the am bit of RLUIPA as a zoning law, the district court highlighted “the text of RLUIPA, precedent from the Fourth Circuit and other courts, the structure of the County's own laws, and how the perm it process was (allegedly) used here to restrict property that otherwise allowed religious uses as of right.” Cnty. of Culpeper, Virginia, 245 F. Supp. 3d at 760 . 15 The perm it here is unlike the ordinance considered in Second Baptist Church of Leechburg v. Gilpin Twp., Pennsylvania, 118 F. App'x 615, 616 (3d Cir. 20 0 4) where the Third Circuit held that ordinance at issue did not “fall within the RLUIPA definition of a “land use regulation” because the m andatory sewer tap was not enacted pursuant to a zoning or landm arking law.” There, Gilpin Township Ordinance No. 53, com m only referred to as a “m andatory tap-in ordinance[,]” required all principal buildings located within one hundred fifty feet of any sewer of the sewage system to connect to the sewage system . The Second Baptist Church sued under RLUIPA arguing that the m andatory tap in ordinance was a zoning law which im perm issibly infringed on its right to exist. The Third Circuit rejected that argum ent on the basis that the Ordinance did not directly involve any zoning or landm arking considerations and, therefore, did not fall within RLUIPA even under broad term s. Second Baptist Church of Leechburg v. Gilpin Twp., Pennsylvania, 118 F. App'x 615, 617 (3d Cir. 20 0 4). Because the Ordinance was m andatory and not subject to zoning usages, the ordinance did not fall within RLUIPA’s broad protection. The Court finds unpersuasive the City’s application of Second Baptist Church of Leechburg, 118 F. App'x at 617 to the sewage perm it. The perm it at issue here is sim ilar to that considered by Cnty. of Culpeper, VA. in form and application. The m andatory nature of, and the lack of zoning considerations com m ensurate with, the “tap in” ordinance of Second Baptist Church of Leechburg renders that decision inapplicable to the present case. The Court finds that the sewage perm it issue is a zoning law subject to RLUIPA. On a m otion to dism iss pursuant to Fed. R. 12 (b)(6), the Court accepts as true all of the allegations contained in a com plaint which show an entitlem ent to relief. The 16 com plaint sufficiently sets forth facts dem onstrating that the Defendants application of the sewage perm itting process places a “substantial burden” on the Plaintiffs’ in violation of RLUIPA. The City’s m otion to dism iss is denied as to this claim . C. The Rem aining Claim s Defendants’ m otion to dism iss the rem aining constitutional claim s is denied. The Equal Protection Clause of the Fourteenth Am endm ent dem ands that no State shall “deny to any person within its jurisdiction the equal protection of the laws[.]” City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 20 2, 216 (1982); Artway v. Attorney General of New J ersey, 81 F.3d 1235, 1267 (3d Cir. 1996). The Equal Protection Clause prohibits “governm ental decisionm akers from treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 50 5 U.S. 1, 10 (1992). Put differently, the Clause ensures that persons sim ilarly situated are treated alike. City of Cleburne, Texas, 473 U.S. at 439. The Com plaint sufficiently sets forth facts which tend to show that GSIC was treated differently from other Christian buildings within the city lim its. Com p. at ¶¶ 10 2-110 . Giving all favorable inferences to Plaintiffs, there are sufficient facts plead dem onstrating that the Defendants intended to discrim inate. Village of Arlington Heights v. Metropolitan Housing Developm ent Corp., 429 U.S. 252, 264– 66 (1977); Washington v. Davis, 426 U.S. 229, 242, 244– 45 (1976). Defendants’ m otion to dism iss the Equal Protection Claim is denied. Defendants’ m otion to dism iss Plaintiffs’ First Am endm ent Right to the Free Exercise of Religion claim is denied for the sam e reasons set forth with respect to the denial of the m otion to dism iss Plaintiffs’ RLUIPA claim . RLUIPA provides “'greater protection' for religious liberty than is provided by the First Am endm ent.” Payne v. Doe, No. 15-2489, 20 16 WL 123624, at *4 (3d Cir. J an. 12, 20 16). For the sam e reasons 17 underscoring the Court’s decision with respect to the RLUIPA claim , Defendants’ Motion to dism iss the First Am endm ent claim and the related claim under the New J ersey Law Against Discrim ination, N.J .S.A. 10 -5-3 is denied. Defendants’ m otion to dism iss Plaintiffs’ due process claim s and the unlawful taxation claim is denied. As construed in a light m ost favorable to Plaintiffs, the Com plaint sets forth a cognizable claim under the Fourteenth Am endm ent for failure to provide notice and a hearing before Defendants revoked the perm it and sets forth an adequate foundation for the im proper assessm ent of taxes against a religious institution. The Com plaint sufficiently sets forth facts, which if believed, demonstrate that the Defendants’ insistence that NJ DEP review is necessary is a pretext for discrimination and a basis for Defendants’ to revoke the perm it without providing a hearing. In addition, according to the Com plaint, the assessm ent of taxes was levied for the year 20 15 because the Township, without notice, deem ed the structure “com pleted[,]” as defined by N.J .S.A. 54:4-63 et seq., because it was “substantially ready for the intended use for which a building or structure is constructed, im proved or converted.” N.J .S.A. 54:4-63-1; Com pl. ¶¶ 125-35. Plaintiffs argue that it applied for tax exem pt status as a religious organization and that even if it had not, the Defendants were aware of the religious affiliation prior to assessing taxes. Id. In addition, the Plaintiffs claim that the paradox of Defendants’ position—nam ely that it deem ed the structure “com plete” for tax purposes but continued to withhold a final Certificate of Occupancy— coupled with the fact that GSIC was the only religious organization in the township required to apply for the religious exem ption evidences discrim ination. Id. Defendants’ m otion to dism iss is denied. 18 IV. Conclusion For the reasons stated above, Defendants’ m otion to dism iss is denied. An appropriate Order shall issue. s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, United States District J udge 19
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