ST. JOSEPH'S KOREAN CATHOLIC CHURCH v. THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF ROCKLEIGH, et al.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6860-03T26860-03T2

A-6980-03T2

A-6982-03T2

ST. JOSEPH'S KOREAN CATHOLIC

CHURCH,

Plaintiff-Respondent,

v.

THE ZONING BOARD OF ADJUSTMENT

OF THE BOROUGH OF ROCKLEIGH and

MAYOR & COUNCIL OF THE BOROUGH

OF ROCKLEIGH,

Defendants-Appellants,

and

ELAINE PONTONE, GRAZIELLA MENDER,

BRUCE LIEBLICH, EDWARD COURY,

DOMINIC GRASSO, ROBERT FUELNER

and MICHAEL MALHAME,

Defendants.

_____________________________________________________

 

Argued February 14, 2006 - Decided May 16, 2006

Before Judges C.S. Fisher, Yannotti and Humphreys.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BER-L-4370-03.

Kenneth C. Dolecki argued the cause for appellant Planning Board of the Borough of Rockleigh in Docket No. A-6860-03T2.

William W. Northgrave argued the cause for appellants Mayor and Council of the Borough of Rockleigh in Docket No. A-6980-03T2 (McManimon & Scotland, attorneys; Mr. Northgate, on the brief).

Kathryn E. White argued the cause for appellant Planning Board of the Borough of Rockleigh in Docket No. A-6982-03T2 (Kaufman, Borgeest & Ryan, attorneys; Ms. White, on the brief).

David M. Watkins argued the cause for respondent.

PER CURIAM

In these consolidated appeals, we examine the trial court's determination that the Planning Board of the Borough of Rockleigh (the board) acted arbitrarily or capriciously when it denied the application of plaintiff St. Joseph's Korean Catholic Church for the variances needed to construct a house of worship on property in Rockleigh's business transitional zone. We reverse essentially because the judge mistakenly failed to give the board's decision the considerable deference to which it was entitled. We also reverse the judge's determination to award counsel fees to plaintiff based upon the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.A. 2000cc to 2000cc-5, because the board's decision did not substantially impair the religious exercise of plaintiff.

I

St. Joseph's Korean Catholic Church (plaintiff) is currently located in Demarest, where it has shared a building with another Catholic church for several years. Seeking its own location, plaintiff entered into a contract to purchase property located in Rockleigh's business transitional (BT) zone. The BT zone is defined as an area for "business administration buildings not for retail or manufacturing purposes."

Rockleigh is a small town, consisting of approximately 600 acres. As a result, its BT zone is quite small; indeed, the property that plaintiff contracted to purchase and upon which it seeks to erect a house of worship consists of all of Rockleigh's BT zone. Because the use which plaintiff intended to make of this property is not permitted in the BT zone, plaintiff was required to apply to the board for a special reasons use variance.

Specifically, plaintiff's proposed house of worship included, on the first floor, a worship hall, a fellowship hall, a warming kitchen, a chapel, and a rectory with living quarters, and, on the second floor, an upper level worship hall, a library, convent living quarters, and seventeen classrooms. The proposed worship hall would contain 570 seats for which plaintiff sought to provide 190 parking spaces. Additionally, four parking spaces were proposed for both a four-bedroom residence and a three-bedroom residence for permanent and visiting clergy.

In addition, plaintiff applied for a second special reasons variance for permission to have its proposed structure exceed the maximum height requirement by ten feet of the maximum height permitted. Plaintiff also applied for site plan approval, and the following bulk variances:

-- a building coverage variance of 11.7% because Section 88-7.1(B)(4)(e)(1) of the Rockleigh Municipal Code provides that the aggregate ground area of all buildings and structures on any lot in the BT zone may not exceed 10% of the total area of the premises.

-- an impervious lot coverage variance of 50.05% because Section 88-7.1(B)(4)(e)(2) provides that the aggregate improved land coverage on any lot in the BT zone, including buildings and other structures, loading areas, driveways, paved walkways and other paved areas, but excluding unpaved landscaped areas, may not exceed 40% of the premises.

-- a variance for a parking setback of 14 feet to the south of the subject property because Section 88-7.1(B)(2) requires a 25 foot setback from the business zone.

-- a variance for a parking setback of 35 feet to the east of the subject property because Section 88-7.1(B)(2) requires a 75 foot setback from the residential zone.

-- a variance for the location of accessory structures within the front yard setback required by Section 88-7.1(B)(2).

-- a variance for the location of accessory structures within the side yard setback required by Section 88-7.1(B)(2).

-- a variance for the location of accessory structures within the rear yard setback required by Section 88-7.1(B)(2).

Lastly, plaintiff sought a permit for the installation of the following signs:

-- a site directional sign identified as "S-1" on plaintiff's site plan.

-- six handicapped parking signs to be fixed near parking spaces on the southerly elevation of the proposed church.

-- five stop signs at various locations in the proposed parking area.

-- a site identification sign labeled "S-2" on the easterly side of the proposed access driveway.

The board conducted a public hearing regarding plaintiff's application over the course of eight days beginning on July 22, 2002 and ending on March 24, 2003. During the March 24, 2003 hearing, the board voted to deny plaintiff's application and memorialized its decision in a detailed written resolution dated May 6, 2003.

Plaintiff filed its complaint in lieu of prerogative writs on June 18, 2003. As the result of a case management conference, the judge entered an order on October 14, 2003, which severed the action into two parts: the first to deal with the question of whether the board's resolution denying plaintiff's application should be upheld, and the second to deal with the constitutional issues and damage claims contained in plaintiff's complaint and defendants' counterclaims.

The judge conducted a hearing regarding the first part of the case on December 19, 2003 and reserved decision. On January 20, 2004, the judge rendered a written decision and entered an order which reversed the board's determination and remanded to the board "for the purpose of . . . granting this application subject to such conditions as [the board] deems appropriate."

The trial of the second part of the case occurred on March 31, 2004. The judge heard the argument of counsel and refused to permit additional discovery as memorialized in an order also entered on March 31, 2004. On May 14, 2004, for reasons set forth in an oral opinion, the judge entered an order declaring that the board interfered with plaintiff's constitutional rights and violated the RLUIPA; as a result, the judge awarded plaintiff counsel fees and costs in the amount of $39,137.50.

Pursuant to the judge's earlier direction, the board began site plan approval hearings on March 22, 2004. The professional planner requested a $2,000 deposit for review services. This request was forwarded to plaintiff's counsel, who claimed the amount sought was exorbitant but would be paid under protest. The professional planner declined further involvement.

The trial judge then issued an order on June 9, 2004, which appointed a new planner to review the site plan and, further, directed that the planner's bills be paid within thirty days, that all parties cooperate, and that the planner's recommen-dations be discussed at the regularly scheduled meetings.

The board and its members moved for reconsideration, seeking an amendment of the May 14, 2004 order pursuant to R. 4:49-2. On July 27, 2004, the trial judge denied that motion by way of a written opinion. At the same time, the judge dismissed all claims against the individual board members.

Three appeals were filed, which collectively requested our review of the orders entered on October 14, 2003, January 20, 2004, March 31, 2004, June 9, 2004, and July 27, 2004.

II

We commence our examination into the sufficiency of the board's denial of plaintiff's application by acknowledging the board's entitlement to wide latitude and discretion in such matters. In Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965), the Court explained that local authorities possess "peculiar knowledge" and that in "highly controversial and oftentimes debatable zoning cases the courts must recognize that local officials . . . 'are undoubtedly the best equipped to pass initially on such applications for variance.'" See also Ward v. Scott, 16 N.J. 16, 23 (1954).

It is the municipality in which the Legislature has vested the discretion to make such decisions. As a result, a rebuttable presumption arises that the municipality has properly exercised its discretion. Harvard Enterprises, Inc. v. Bd. of Adj., Madison, 56 N.J. 362, 368 (1970). In addition, in Kramer, the Court reasoned that local authorities are most familiar with their own communities, thus further justifying the presumption that such boards act fairly, with proper motives, and for proper reasons. 45 N.J. at 296. Judges, therefore, must not substitute their judgment for that of a local board absent a determination that the action taken was arbitrary, capricious or unreasonable. Smart SMR of New York, Inc. v. Fair Lawn, Bd. of Adjust., 152 N.J. 309, 327 (1998).

In determining whether the board's decision was arbitrary, capricious or unreasonable, we start by ascertaining whether the board applied the correct legal standards. We are satisfied that it did. The board's actions were governed by N.J.S.A. 40:55D-70(d), which empowers such local bodies, in particular cases for special reasons, to:

grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure, . . . or (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. A variance under this subsection shall be granted only by affirmative vote of at least five members, in the case of a municipal board, or two-thirds of the full authorized membership, in the case of a regional board, pursuant to article 10 of this act.

If an application development requests one or more variances but not a variance for a purpose enumerated in subsection d. of this section, the decision on the requested variance or variances shall be rendered under subsection c. of this section.

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.

This statute requires that an applicant must satisfy both positive and negative criteria to be granted a use variance. Smart SMR, supra, 152 N.J. at 323.

The application of the positive criteria requires that the applicant establish "special reasons" for the grant of the variance. Sica v. Bd. of Adj., Wall Tp., 127 N.J. 152, 156 (1992). The applicant must establish that the variance can be granted without substantial detriment to the public good or substantial impairment to the intent and the purpose of the zone plan and zoning ordinance. Ibid. In this regard, it is important to recognize that our courts have distinguished "inherently beneficial" uses from other uses in examining variance applications. Smart SMR, supra, 152 N.J. at 323. That is, "if the use for which a variance is sought is not one that inherently serves the public good, the applicant must prove and the board must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." Medici v. BPR Co., 107 N.J. 1, 4 (1987). But, if the proposed use is "inherently beneficial," the applicant's burden of proof is significantly reduced. In fact, an inherently beneficial use presumptively satisfies the required positive criteria. Smart SMR, supra, 152 N.J. at 323. The negative criteria, however, do not depend on an enhanced quality of proof, and the status of a proposed use as inherently beneficial is not solely dispositive of the determination required by N.J.S.A. 40:55D-70(d). See Smart SMR, supra, 152 N.J. at 323-24; Sica, supra, 127 N.J. at 160-61. If the proposed use is inherently beneficial, the grant of the variance turns on the board's balancing of the positive and negative criteria. Smart SMR, supra, 152 N.J. at 324. The board should weigh the benefits of the variance against the detriment to the public good. Sica, supra, 127 N.J. at 163.

At the time the balancing test was established, the Court recognized that N.J.S.A. 40:55D-70(d) did not explicitly require the board to weigh the positive and negative criteria. Sica, supra, 127 N.J. at 164. Yet, the Court reasoned that "the need for balancing is implicit in the statutory requirement" that granting the variance must not constitute a substantial detriment to the public good. Ibid. Notably, only a "substan-tial" detriment precludes the grant of the variance. Ibid. Thus, "[f]airly read, the requirement that a detriment be substantial necessitates a balancing of positive and negative criteria." Ibid.

In Sica, the Court developed the following four-part procedure for considering the positive and negative criteria:

First, the board should identify the public interest at stake. Some uses are more compelling than others. . . .

Second, the [b]oard should identify the detrimental effect that will ensue from the grant of the variance. Certain effects, such as an increase in traffic, or "some tendency to impair residential character, utility or value," will usually attend any nonresidential use in a residential zone. When minimal, such an effect need not outweigh an inherently beneficial use that satisfies the positive criteria.

Third, in some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use. If so, the weight accorded the adverse effect should be reduced by the anticipated effect of those restrictions.

Fourth, the [b]oard should then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good. This balancing, "while properly making it more difficult for municipalities to exclude inherently beneficial uses permits such exclusion when the negative impact of the use is significant. It also preserves the right of the municipality to impose appropriate conditions upon such uses."

[127 N.J. at 165-66 (citations omitted).]

This test has essentially been codified by amendment to N.J.S.A. 40:55D-70, to which the Legislature added language emphasizing that even if the applicant proposes an inherently beneficial use, the negative criteria must be satisfied. Smart SMR, supra, 152 N.J. at 324.

Here, the board acknowledged that plaintiff's proposed use (a house of worship) constitutes an inherently beneficial use that satisfied the positive criteria. Accord House of Fire Christian Church v. Zoning Bd. of Adj., Clifton, 379 N.J. Super. 526, 535 (App. Div. 2005). Contrary to plaintiff's arguments, and as demonstrated by the authorities we have synopsized above, this conclusion does not end the inquiry. Instead, in determining whether to grant the use variance, the board was required to engage in the balancing test outlined in Sica. Thus, the board was obligated to identify the detrimental effects that would follow the granting of the use variance.

Of particular note is the fact that the proposed use was incompatible with the use for which the BT zone was created. The BT zone was established specifically to accommodate an office building that would operate during regular weekly business hours and generate little or no traffic or activity on weekends. Thus, the non-permitted use proposed by plaintiff would have the obvious effect of substantially impairing Rockleigh's master plan because it would consume its entire BT zone and eliminate that zone as the means for fulfilling the municipal purpose for which it was designed.

The board determined that the proposed house of worship "would result in substantially more traffic to and from the facility and on adjacent roadways during the evening hours and on weekends than would an office use that would not under ordinary circumstances be operating evenings and weekends." The board, however, also acknowledged that

this in and of itself may not be a substantial consideration for the [b]oard and the [b]oard does not necessarily rely heavily on this consideration, it is a fact that the [b]oard must take into consider-ation as this condition would have an adverse impact on the [r]esidential [z]one to which the subject property is adjacent during evening hours and on weekends when any traffic that may be generated by the permitted use of an office building would be minimal on Saturdays and virtually non-existent on Sundays.

It may be, as plaintiff argues, that an increase in traffic or impairment of residential character, when minimal, need not outweigh an inherently beneficial use. Here, however, we must assume that the board rightfully anticipated a more than minimal increase in traffic. For example, the board heard the testimony of an expert that the proposed church would generate approximately 477 trips on a Saturday whereas an office building would generate only 117 trips for the same time period. The board was entitled to not only credit this testimony but also rely upon its own peculiar knowledge, superior to that of our courts, of the impact that plaintiff's use of the property would have on traffic concerns in this small town. See Kramer, supra, 45 N.J. at 296.

In addition, the board heard and was also entitled to credit testimony that the proposed structure would be at full capacity the day it opened, which might eventually lead to an increased number of weekend services. The board observed that plaintiff did not adequately address how parking would be managed for special events or when the lot is at full capacity. Other testimony presented to the board indicated that the subject property is on a county road where no parking is permitted and the closest additional parking would be on residential streets half a mile away. These peculiar facts about the location of this property and how the municipality would be impacted by plaintiff's proposed project were entitled to considerable deference.

The third aspect of the Sica test requires a consideration of whether, when applied to this case, the traffic and parking problems could be reduced or ameliorated by the board's imposition of reasonable conditions. The board determined that, "due to the proposed use, location and physical constraints of the subject property, it is not possible to impose reasonable conditions to reduce prospective detrimental effects that will be created by the proposed use." The record amply supports this conclusion. There is no reasonable alternative location for the parking required due to the location of the property on a county road.

Fourth, Sica requires that the local board weigh the positive and negative criteria to determine whether granting the variance would cause a substantial detriment to the public good. 127 N.J. at 166. Admittedly, this balancing makes it more difficult for municipalities to exclude inherently beneficial uses, but allows such exclusion only if the negative impact is significant. Ibid. The proponent of an inherently beneficial use variance has the burden to prove that the public benefit will outweigh any impairment to the zone plan and zoning ordinance or detriment to the neighborhood. Stop & Shop Supermarket Co. v. Bd. of Adj., Springfield, 162 N.J. 418, 430 (2000). If the detrimental effects of an inherently beneficial use variance outweigh the public benefit, the municipality is authorized to deny the variance. Id. at 431.

Here, the board stated that in applying this balancing test, it determined that "the positive impact of this proposed inherently beneficial use is insufficient to outweigh the negative impacts that it would have on the surrounding area and the community, and that, conversely, the negative impacts far outweigh the proposed use[']s positive impact." The board determined that plaintiff did not meet the negative criteria burden. Indeed, the elimination of the entirety of its BT zone would constitute a substantial detriment and would impair the purpose of the zone plan.

In concluding that the board's decision was arbitrary, capricious and unreasonable, the trial judge relied heavily on his comparison of plaintiff's application with the 1996 application filed by Landmark Development Co., L.P. (Landmark). At that time, the board approved Landmark's application to construct a two-story office building on the same property; the proposed office building, which satisfied the requirements of the BT zone but required variances similar to those sought by plaintiff, was never built. In identifying numerous similarities between the Landmark application and plaintiff's application, the trial judge reasoned that the board acted arbitrarily in denying plaintiff's. Although there were similarities, we disagree with the great weight the judge placed on the fact that Landmark's application was granted, principally because there are substantial differences between the two applications.

Indeed, the most significant difference was that plaintiff required a special reasons use variance to build its house of worship in the BT zone; Landmark did not. Despite this highly important distinction, the trial judge mistakenly concluded that the only real difference he could discern between the two applications was that "the church wished to erect a cross, which would be six feet above the height requirement of 33 feet."

The trial judge also relied upon the fact that the square footage of the church was slightly less than Landmark's proposed office building and plaintiff proposed one less parking space than Landmark. Although true, the judge mistakenly failed to recognize that Landmark's anticipated use of the property greatly differed from plaintiff's and, thus, precluded a mathematical analysis of the bulk variances as a fair comparison between the two applications. In addition, the trial judge declared that "[m]uch was made of the fact that the municipality fears that this [h]ouse of [w]orship is already at capacity and that if growth continues in the future as it has in the past," then the parking and traffic problems created by the house of worship as presently anticipated will become an even greater problem in the future. The trial judge explained his dissatisfaction with the board's contentions regarding the property's parking needs, concluding that if these fears are realized, then they "can be addressed at that time." The trial court suggested that plaintiff would then have to find an alternate source of parking without violating any ordinances. He did not suggest any alternatives.

We conclude that the board's refusal to simply bury its head in the sand as to future consequences for this town if plaintiff's application was approved did not render its decision arbitrary or capricious -- far from it. That the board wisely and appropriately considered not only present concerns but attempted to anticipate future difficulties demonstrates that the board thoroughly examined and weighed all relevant factors and their present and future consequence for Rockleigh. Leaving these difficulties to future consideration, at which time the anticipated problems may prove insoluble, is not an attribute of good planning.

We are satisfied after carefully reviewing this voluminous record, that the judge essentially -- and mistakenly -- replaced the board's judgment with his own. Accordingly, the judgment under review cannot stand.

III

The board and the mayor and council of Rockleigh contend that the trial judge erred in awarding counsel fees to plaintiff based upon plaintiff's claim that the board's resolution violated the RLUIPA.

The RLUIPA sets forth the factors to be considered when determining whether the implementation or enforcement of a land use regulation imposes a substantial burden on the exercise of religion:

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 government interest; and

(B) is the least restrictive means of furthering that compelling govern-mental interest.

[42 U.S.C.A. 2000cc(a)(1).]

To demonstrate a violation of the RLUIPA, a plaintiff must make a prima facie showing that the land use regulation imposed a substantial burden on religious exercise. See Grace United Methodist Church v. City of Cheyenne, 235 F. Supp. 2d 1186, 1193 (D.Wyo. 2002). When that burden is met, the burden shifts to the local government to demonstrate that the land use regulation furthers a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. Ibid.; see also House of Fire Christian Church, supra, 379 N.J. Super. at 544-47.

In Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 760 (7th Cir. 2003) ("C.L.U.B."), cert. denied, 541 U.S. 1096, 124 S. Ct. 2816, 159 L. Ed. 2d 262 (2004), the court explained that the plaintiff must first demonstrate the actual imposition of a substantial burden on religious exercise. The RLUIPA does not expressly define "substantial burden," but its legislative history indicates it should be interpreted through a consideration of First Amendment jurisprudence. Ibid. For example, a "substantial burden" could include the effect of a regulation that "inhibits or constrains the use, building, or conversion of real property for the purpose of religious exercise." Ibid. In this regard, the court held that a "substantial burden" on religious exercise is one that "necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise -- including the use of real property for the purpose thereof within the regulated jurisdiction generally -- effectively impracticable." Id. at 761.

The religious group in C.L.U.B. asserted that the scarcity of affordable land in the requisite zone, among other things, imposed a substantial burden on religious exercise. Ibid. The court, nonetheless, found those issues to be incidental to any high-density urban land use and not a substantial burden. Ibid. Although the court recognized these issues contributed to the difficulties associated with the location in a large city, they did not substantially burden religious exercise or discourage churches from locating in the city. Ibid. In fact, the court found that the appellant church only faced the "harsh reality of the marketplace" that faces all land users. Ibid. Any other interpretation of the RLUIPA, the court held, would require municipalities to favor religious land uses rather than treat them equally. Id. at 762.

The court in Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004), cert. denied, 543 U.S. 1146, 125 S. Ct. 1295, 161 L. Ed. 2d 106 (2005), declined to adopt the C.L.U.B.'s definition of "substantial burden." The Midrash court did, however, conclude that to be a "substantial burden," the land use regulation must place more than an inconvenience on religious exercise. Ibid. Instead, a "substantial burden" is analogous to a significant pressure directly coercing "the religious adherent" to abstain from religious precepts or pressures conformity. Ibid.

Here, under either approach, plaintiff failed to sustain its burden that any of Rockleigh's land use ordinances or its board's decision to deny plaintiff's application, which we have upheld, constituted a substantial burden on its religious exercise. Plaintiff alleges that the existing zoning ordinance effectively precludes the construction of any houses of worship in Rockleigh. The trial court agreed with this contention, yet, it is clear that houses of worship are permitted conditional uses in the public zone. Therefore, plaintiff does not meet either of the "substantial burden" definitions contained in C.L.U.B. and Midrash.

The board's decision did not bear primary responsibility for rendering religious exercise "effectively impracticable." C.L.U.B., supra, 342 F.3d at 761. Rockleigh has explained that houses of worship are permitted in the public zone, and there is nothing in the record that persuades otherwise. Instead, any difficulties plaintiff may have in finding an alternate location in Rockleigh for its house of worship is a product of the marketplace and the geographic area in question.

Rockleigh consists of approximately 600 acres of land. As a result, it may be "inconvenient" for a church or many other types of businesses to find suitable property in Rockleigh's public zone. That does not mean, however, that by refusing to allow its BT zone to be wholly consumed by a non-permitted use that Rockleigh has substantially burdened plaintiff's right to exercise its religious beliefs. See Midrash, supra, 366 F.3d at 1227. As indicated in C.L.U.B., supra, 342 F.3d at 761, the scarcity of affordable land available for development does not impose a substantial burden on religion. Also, as we previously observed, the RLUIPA "does not provide religious institutions with immunity from land use regulation, nor does it relieve religious institutions from applying for variances, special permits or exceptions, hardship approval, or other relief provisions in land use regulations, where available without discrimination or unfair delay." House of Fire Christian Church, 379 N.J. Super. at 544 (quoting 146 Cong. Rec. S7774-01 at S7776 (July 27, 2000)(joint statement of Senators Hatch and Kennedy)). Just as the board was not permitted to impose a substantial burden on plaintiff's First Amendment rights neither was plaintiff exempted from Rockleigh's land use restrictions. See, e.g., Roman Catholic Diocese of Newark v. Bor. of Ho-Ho-Kus, 47 N.J. 211, 221 (1966) (Hall, J., concurring) ("Just because an institution is thought to be a good thing for the community is no reason to exempt it completely from restrictions designed to alleviate any baneful physical impact it may nonetheless exert in the interest of another aspect of the public good equally worthy of protection."). We additionally reject the importance plaintiff places in its allegation that it took four and a half years to find the subject property. The length and difficulty of that search does not transform the board's enforcement of its land use regulations into a constitutional deprivation or a violation of the RLUIPA. Again, that result is only the by-product of the marketplace and Rockleigh's diminutive size.

IV

For these reasons, we reverse the order of January 20, 2004, which had both vacated the board's resolution and remanded to the board with the direction that plaintiff's application be granted, and we remand for the entry of an order reinstating the board's May 6, 2003 resolution. We also reverse the May 14, 2004 order, which found a violation of RLUIPA and plaintiff's constitutional rights, and which awarded plaintiff counsel fees in the amount of $39,137.50. As a result of those determinations, we reverse the order of June 9, 2004, which appointed a professional planner over the board's objection, as well as all other orders implementing that relief. We do not retain jurisdiction.

 

Plaintiff's complaint inaccurately referred to the planning board as the zoning board of adjustment.

Although these authorities specifically refer to the deference that should be afforded boards of adjustment, the same standard should be applied to the board here. See N.J.S.A. 40:55D-25(c) ("In a municipality having a population of 15,000 or less, a nine-member planning board, if so provided by ordinance, shall exercise, to the same extent and subject to the same restrictions, all the powers of a board of adjustment. . . .").

Plaintiff has argued that it is essentially limited to building on the property in question because the public zone consists largely of property that is owned either by Rockleigh or the county and is unavailable. The record, however, is bereft of any evidence to suggest that plaintiff ever explored the acquisition or leasing of any property in the public zone or what would occur if it had. Accordingly, we reject plaintiff's contentions that limiting the construction of a church to the public zone constitutes a "substantial burden" on the exercise of religion but only because we find no factual evidence in the record to support the premise upon which that contention is based.

(continued)

(continued)

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A-6860-03T2

May 16, 2006