Real Estate Law

A Mosque, Open Space and Eminent Domain

United States District Court Judge Peter G. Sheridan issued an opinion on November 29 on a motion to amend the complaint in Albanian Associated Fund v. Township of Wayne. This case involves eminent domain, open space, and land use regulations in the context of proposed religious use, the building of a Muslim mosque on 11 acres in Wayne Township, New Jersey. Therefore, the Religious Land Use and Institutionalized Persons Act  of 2000 (RLUIPA) plays into the dispute as well. See 42 USC § 2000 cc (a) (1):

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.

There is a real fear among religious organizations that RLUIPA may not apply because it does not specifically mention the words “eminent domain.” Download the decisions in  St. Johns United Church of Christ v. City of Chicago  (U.S. Court of Appeals for the Seventh Circuit,2007) and Faith Temple Church v. Town of Brighton, 405 F. Supp. 250 (W.D.N.Y. 2005).

In Judge Sheridan's November 29 opinion, the court permitted the plaintiff to amend its complaint on eight counts and denied amendment on a new ninth count. The ninth count alleged violations of New Jersey’s Municipal Land Use Law (MLUL) which is the comprehensive statute governing land use applications and proceedings before zoning boards and boards of adjustment in the state (N.J.S.A. 40:55 D-1 et seq). The court barred the amendment based on the comprehensive system established under the MLUL and the N.J. Court Rules 4:69-1, which established a comprehensive non-jury procedure for plaintiffs contesting a municipal action.

The procedure established in the law and the court rules is consistent with the New Jersey Constitution Article IV § 6, Paragraph 2, which mandates uniform policies and procedures that any municipality must follow. Therefore, the court held the proper venue for plaintiff’s count 9 claim was before the New Jersey Superior Court in an action in lieu of prerogative writ.

In an earlier decision issued October 1, 2007, the court denied defendant Township of Wayne’s motion for summary judgment. The plaintiff’s application for a conditional use permit to construct a mosque on the property was pending when the township instituted eminent domain proceedings to acquire the property for open space. The township argued that eminent domain procedures are not covered by RLUIPA; the court disagreed.

This case presents many interesting issues which are not yet fully decided:
1. The protection afforded the property owner by RLUIPA versus the township’s stated desire to acquire the land for open space
2. The impact of the New Jersey Supreme Court decision in Mount Laurel v. Mipro Homes 188 NJ 535 (2007) which permits acquisition for open space even after local approvals were obtained for a 23-lot subdivision.

The facts developed at trial will determine whether the actions of the defendant were discriminatory, and as the court stated in its October opinion:

The circumstances of this case and the manner in which the plaintiffs' property was pursued, at the very least, supports an indication of discriminatory or improper purpose for which plaintiffs are entitled to inquire into the Council's motives in condemning the plaintiffs' property and raise the issue of credibility before the trier of fact.

Background information about the case can be found here and here.  Also, read the USDOJ amicus brief. here. 

From New Jersey Eminent Domain Law Blog posted 2007-12-05.