Mimesis Law
19 February 2017

In New Jersey, A Long-Overdue Mosque Will Finally Be Built

January 9, 2017 (Fault Lines) – Mohammad Ali Chaudry, a retired financier, is the current president of the Islamic Society of Basking Ridge. Five years ago, he and his 60-some fellow congregants decided to build a mosque in Bernards Township, a wealthy village of 25,000 residents in north-central New Jersey where Chaudry had previously served as mayor. The plan was for their new house of worship to ultimately accommodate up to 150 attendees for Friday services.

There was nothing especially odd about the proposal – except, of course, for the fact that Chaudry and his Society were freely choosing to invest money in New Jersey. But Bernards Township’s planning board found it very odd indeed. So odd, in fact, that they tried their hand at one of the oldest bureaucratic tricks in the book.

Instead of waving ISBR’s proposal through, like they’d always done with submissions for Christian churches and the town’s two synagogues, they sent the Society back to the drawing board with changes they had to make and then, when they returned, demanded changes to the changes. They kept the scam going for three and a half years and 39 hearings, vastly more than any other applicant had to endure. Not only that, but they devised a diabolical trap for the Muslim invaders in the form of parking requirements.

When ISBR submitted its original plan to the board, the only rule Bernards Township had to govern how much parking space they needed to provide was a provision in the local zoning ordinance. The rule says that for “[c]hurches, auditoriums and theaters,” “1 space for every 3 seats or 1 space for every 24 linear inches of pew space” is sufficient. Because Chaudry and his Society hoped to one day cater to 150 congregants, their plan provided for 50 parking spaces, more than twice as many as would have been necessary at the time. The piece of land they purchased for three-quarters of a million dollars was also located and sized with this in mind.

But when the time came for the board to take up ISBR’s submission, they decided to get smart. A couple months after the first of the 39 hearings had gone by, the excellently-named Board Planner, Mr. Banisch, wrote a memorandum in which he calculated that ISBR’s proposed mosque, designed for 150 worshippers, could theoretically fit up to 168 prayer mats.

Using this minor discrepancy as an excuse, Banisch and the rest of the board demanded further submissions from ISBR, allegedly to help them determine whether a different parking-to-seats ratio would be more appropriate in the case of their mosque. (Never mind, of course, that the zoning ordinance only provided for one.)

The board specifically requested a copy of a 2010 report from the Institute of Transportation Engineers. The ITE report was an “Informational guide to planners and designers” that included volunteer-gathered information on how much parking space mosques typically use. What’s more, the report explicitly said that none of its findings should be treated as authoritative or recommendations on what to do.

But Bernards Township decided to treat it like one of the Ten Commandments. Using the report as a crutch, the board ordered ISBR to perform new parking-ratio calculations that took the new data into account. And when the results came in, they allowed the town to demand that the Society come up with 110 (!) parking spaces – more than twice as much as the most generous estimate of ISBR’s future needs let them ask for under the zoning ordinance.

The only problem was that the ordinance, which provides for a simple congregants-to-parking-spaces ratio, didn’t allow the planning board to use random reports to order the Muslims around. So when the law doesn’t let you do something, and you really want to do it, and you’re a very important board made up of very official people who have a very important mission in mind, what do you do? Why, make up your own law, of course!

Board Planner Banisch and the board’s attorney, Jonathan Drill, wrote another memo in which they “set forth” the following legal positions:

  1. The zoning ordinance requires the board to “engage in an individualized analysis of every applicant’s parking need, regardless of the ratios set forth in the ordinance” [i.e. they can ignore the ratios at will]. To their credit, they were able to point to some language in the ordinance to back up their claim.
  2. When the ordinance said “churches,” it meant Christian churches. Mosques don’t count!

Faced with this chicanery, ISBR made a good-faith effort to comply. It offered, for instance, to split its Friday services into two parts to relieve congestion. When the township rejected that plan, the Society went back to the drawing board and ultimately came up with a proposal that included 107 parking spaces, or very nearly as many as Banisch & Co. wanted. Obviously, even that wasn’t good enough, and the board ultimately denied ISBR’s application for a building permit on January 19, 2016.

So Chaudry and his fellow congregants sued in federal court. The matter attracted its fair share of attention; a number of civil-rights organizations worked together to submit two amicus-curiae briefs in favor of the plaintiffs. (The ACLU was also involved.) And on New Year’s Eve, U.S. District Judge Michael Shipp thoroughly kicked Bernards Township’s ass when he granted ISBR’s motion for partial judgment on the pleadings.

In Judge Shipp’s extremely thorough, 57-page opinion, it emerges that while defendants thought they were so goddamn smart, they were really only half smart. Congress, anticipating exactly this kind of discriminatory abuse of zoning rules by local governments, unanimously passed RLUIPA, the Religious Land Use and Institutionalized Persons Act, back in 2000. The Nondiscrimination Provision of the act precludes planning boards and their ilk from expressly discriminating on the basis of religion when imposing requirements on applicants.

Unfortunately for Bernards Township, Chaudry & Co. had no trouble proving that was what its planning board was doing. After all, Banisch and Drill’s memo explicitly said they were interpreting the ordinance’s 3:1 ratio to apply only to Christian churches. The more or less excellent reasons excuses the township offered for doing so and holding Muslims to a different standard were of no interest: in the judge’s opinion, no amount of data from transportation-engineer reports could overcome the reality of the board’s discriminatory conduct.

ISBR also prevailed on a related claim, that the part of the township’s zoning ordinance governing parking was unconstitutionally vague insofar as it allowed the planning board to do what it said it would in Part 1 of its memo (i.e., ignore the 3:1 ratio at will.) Judge Shipp agreed in full, holding that the ordinance impermissibly let the likes of Banisch and Drill do whatever they liked.

While we’re at it, the opinion also held that the planning board was wrong to interpret “churches” to mean Christians only. It turns out Bernards Township’s zoning ordinance doesn’t bother to itself define much of the language it uses. Instead, it imports its definitions from, of all things, Webster’s dictionary (Third International Edition,) and Webster’s definition of “church” encompasses mosques.

The result is a comprehensive defeat for the forces of petty, authoritarian, bigoted bureaucracy, and a well-deserved victory for Chaudry and the Islamic Society. It’s deeply unfortunate that it took five years and untold sums of money to get to this point. But the outcome is indisputably the right one. And when the new mosque goes up along Basking Ridge, Bernards Township’s residents should rest easy knowing that such vigorous defenders of people’s constitutional rights have chosen to worship there.

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  • bacchys
    9 January 2017 at 1:28 pm - Reply

    It’s only the right outcome if the Islamic Society has been recompensed for their legal fees. Otherwise, it’s a partially right outcome.

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