Ocean Township and Zoning Board Opposition To Preliminary Injunciton Motion - July 1 2016

Case 3:16-cv-00096-FLW-DEA Document 36 Filed 07/01/16 Page 1 of 55 PageID: 1810
19173 9 00270-I-IBM
By: Howard B. Mankoff, Esq.
Attorney I.D. No. 021971981
425 Eagle Rock Avenue, Suite 302
Roseland, NJ 07068
r m
g 973-618-0685
m 973-618-4100
an
3 hbmankoff@mdwcg. com
ATTORNEYS FOR DEFENDANT - Township of Ocean and Zoning Board of
Adjustment of the Township of Ocean
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY
YESHIVA GEDOLA nA'os YAAKOV,
INC. , a New Jersey nonprofit
corporation and ZEBRA
HOLDINGS II LLC, a New Jersey
Limited Liability Company,
CASE NO.: 3 : 16-cv~00096~FLW-DEA
Civil Action
Plaintiffs
v.
TOWNSHIP OF OCEAN, N.J. and

ZONING BOARD OF ADJUSTMENT OF
THE TOWNSHIP OF OCEAN,
Defendants
BRIEF IN OPPOSITION
TO MOTION FOR PRELIMINARY INJUNCTION
Howard B. Mankoff, Esq.

Of counsel and on the Brief
TABLE OF CONTENTS
PAGES
a
TABLE OF CONTENTS
TABLE OF AUTHORITIES
.ii, iii, iv, V
PRELIMINARY STATEMENT
no OOOOOOOQOODOOIO \ 1
.6
STATEMENT OF FACTS
ARGUMENT
u 000 no nun 09900990
POINT I
Plaintiffs are not likely to succeed on the merits
Of their constitutional and statutory claims
CONCLUSION
.22
TABLE OF AUTHORITIES
PAGES
FEDERAL CASES
Adhi Parasakthi Charitable v. Twp . of W. Pikeland,
721 F . Supp. 2 d 361, 386 (E.D. Pa . 2010)
.4, 24
Albanian Associated Fund v. Twp. of wayne,

2007 U.S. Dist. LEXIS 73176 I 24(D.N.J. Oct. 1, 2007)
29, 45
Affordable Recovery Hous. v. City of Blue

Island, 2012 U.S. Dist. LEXIS 97621
(N.D. Ill. July 13, 2012
Ol
. . .. . .. . . . . . - <
Al Falah Ctr. v. Twp. of Bridgewater, 2013 U.S.

Dist. LEXIS 190076, 36 (D.N.J. Sept. 30, 2013)
.30
Anshei Roosevelt, 338 Fed. Appx. at 218
.4 0
Bethel World Outreach Ministries v. Montgomery

County Council, 706 F.3d 548 (4th Cir. Md. 2013)
.31
Brown v. City of Pittsburgh, 586 F. 3d 263 (3d. Cir. 2009)
WM31
Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86,

90 (3d Cir. 1992)
.4
Christian Methodist Episcopal Church v. Montgomery,

2007 u.s. Dist. LEXIS 5133, 30-31 (D.s.c. Jan. 18, 2007) ...23, 30
Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520 (1993)
Church of Scientology of Ga., Inc. v. City of
Sandy springs, 843 F. Supp. 2d 1328, 1377 (N.D. Ga . 2012)
C.L.U.B.
.4 5
11404044
.30, 35
342 F.3d at 761)
Civil Liberties for Urban Believers v. City of

Chicago, 342 F.3d 752, 761(7uh Cir. Ill. 2003)
.26
Congregation Anshei Roosevelt v. Planning &

Zoning Bd., 338 Fed. Appx. 214 (3d Cir. 2009)
.29
ii
Congregation Kol Ami v. Abington Twp.
309 F.3d 120,
135 (3d Cir. 2002)
.25
Cutter v. Wilkinson, 544 U.S. 709 (2005)
.22
Employment Division, Department of Human

Resources of Oregon v. Smith, 494 U.S. 872 (1990)
.45
First Korean Church of N.Y. , Inc. v. Cheltenham

Twp. Zoning Hearing Bd., 2012 U.S. Dist. LEXIS 25968
.23, 24, 28
(E.D. Pa. Feb. 29, 2012)
Hope Rising Cmty. Church v. Municipality of

Penn Hills, 2015 U.S. Dist. LEXIS 160852, 12-13
(w.D. Pa. Oct. 28, 2015)
.27
Jordan v. Fox, Rothschild, O'Brien & Frankel I 20 F. 3d

1250 (Brd Cir. 1994)
....46
Kol Ami, 309 F.3d at 133
.40
Lighthouse Christian Ctr. , Inc. v. City of

Reading, 2006 U.S. Dist. LEXIS 52432, *16-21
(E.D. Pa. June 19, 2006)
.35
Lighthouse Inst. for Evangelism, Inc. v. City

of Long Branch, 100 Fed. Appx. 70
(3d Cir. n.J. 2004)
22, 29, 32
Listecki v. Official Committee of Unsecured

Creditors, 780 F.3d 731 (7th Cir. 2015)
.46
Living Water Church of God v Charter Twp. of

Meridian, 258 Fed Appx 729 (6& Cir. 2007)
.30
Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)
.4 6
Mcneil Nutritionals, LLC v. Heartland Sweeteners, LLC,

511 F.3d 350, 356(3d Cir. 2007)
.22
Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214, 1227 n.11 (11th Cir. Fla. 2004>
.35
Nat'i Endowment for the Arts v. Finley,

524 u.s. 569 (1998)
.31
Petra Presbyterian Church v. vill

489 F.3d 846 7th Cir. 2007)
of Northbrook,
.27
Rabbinical Coll. Of Tartikov v. vill. Of Pomona,

138 F. Supp. 3d. 352 (S.D. N.Y. 2015)
.23
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
.16
Roman Catholic Diocese of Rockville Ctr. v. Inc.

Vill. of Old Westbury, 2015 U.S. Dist. LEXIS 117808
(E.D.N.Y. Sept. 3, 2015) W
.4 0
Simon & Schuster, Inc. v. members of the

N.Y. State Crime Victims Bd., 502 U.S. 105 (1991)
.16, 17
Stuart Circle Parish v. Board of Zoning Appeals

of Richmond, 946 F. Supp. 1225 (E.D. Va. 1996)
Tartikof f ,
.30, 32, 46
2015 U.S. Dist. LEXIS 132714 I *170
United Broth. of Carpenters and Joiners of

America, Local 610, AFL-CIO v. Scott, 463 U.S
(1983)
.26
825
.31
United States v. Salerno, 481 U.S. 739 (1987)
Vision Church v. vill. of Long Grove, 468 F.3d

975, 998 (7th Cir. 2006) I1
W a s h i n g t o n v . K l e m , 4 9 7 F . 3 d 2 7 2 (3d Cir. 2007) m m
Westchester Day Sch. v. Vill. of Mamaroneck,

386 F.3d 183 (2d Cir. 2004)
.3o, 31
m
Zg
.29
FEDERAL RULES
.1
42 u.s.c. 1983
.1, 4, 23, 24, 25, 28, 45, 47
42 U.S.C. 2000CC
.1
42 U.S.C. 3604
iv
STATE CASES
Amerada Hess Corp. v. Burlington County Planning
Bd., 195 N.J. 616, 44 (n.J. 2008)
.33
Kali Bari v. Bd. of Adjustment, 271 N.J. Super.

241 (App. Div. 1994) "mmm
.3 9
Orloski v. Planning Bd. of Borough of Ship

Bottom, 226 N.J. Super. 666 (Law Div. 1988)
.3 9
STATE STATUTES
.13
40 n.J.s.A. 40:55D-'70 (d)
Defendants, the Township of Ocean and Zoning Board of

Adjustment of the Township of Ocean, by and through their
attorneys Marshall Dennehey warner Coleman and Goggin, submit
the foregoing Brief in Support of Answer to Plaintiffs' Motion
For Preliminary Injunction, and aver as follows.
PRELIMINARY STATEMENT
Plaintiffs
Yeshiva Gedola Na'os Yaakov's ["the Yeshiva"]
and property owner Zebra Holdings II LLC commenced this lawsuit

by Complaint filed on January 8, 2016 against Defendants, the
Township of Ocean and Zoning Board of Adjustment of the Township
of Ocean, asserting violations of civil rights protected by the
Free Exercise and Equal Protection Clauses of the United States
Constitution, 42 U.S.C. 1983, the Religious Land Use and
Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C.
2000cc et seq., the Fair Housing Act, 42 U.S.C. 3604 ("FHA") /
and the New Jersey Law against Discrimination.
(Complaint, 9
77-78>
Plaintiffs initially challenged the Board's December 1,

2015 Resolution denying the use variance application for a use
or "D" variance, to modify and use an existing school building
at 1515 Logan Road for a Talmudic Academy for 96 male boarding
students ages 18-22, which it was forced to issue when
Plaintiffs denied further extensions. (See Doc. No.
1,"Complaint,
11
and Pltf's Ex. R, "January 2016 Resolution") .
By
Order entered March 17 I 2016 I this Court remanded for additional

public hearings on April 5 and 25, 2016, directed the Board to
consider the request for a site variance and reinstate the
application for minor site plan approval for handicap access,
consider as a condition for approval that Applicant must apply
for site plan approval within six months of the adoption of the
Resolution if approved, and that the Board shall vote at the
April 25, 2016 hearing. (Doc. No. 25, "Order"; Pltf's Ex. A-1
and A-2 (Doc., Nos. 33-4 (n.T. 4/5/16) and 33~5 <n.T. 4/25/16)).
Following the hearings, the Board unanimously denied the

Yeshiva's Application by Resolution adopted on May 19, 2016,
(Pltf's Exhibit C, Doc. No. 31, "Resolution") . The Board found
that the benefits of granting the use variance were
substantially outweighed by the detriments, based the density of
the use and the inability to find satisf actory mitigation by way
of enforceable conditions, and that granting a use variance
would also substantially impair the intent and purpose of the
Zoning Ordinance or the Zoning Plan. (Id.
1191
9 I 46-47).
The Resolution and Ordinance represent zoning and planning

determinations, not religious discrimination and Plaintiffs'
case is based upon meritless and incendiary accusations of antiSemitism, not the f acts and law.
Ocean is a diverse welcoming
town which has houses of worship for many religions.
The record
is devoid of evidence that the Board was influenced by any

2
alleged anti-Semitic hostility or bias against the yeshiva or

Orthodox Jewish community.
The Board's decision was consistent
with the Ordinance accommodating the prior Deal Yeshiva and rezoning the property 13 years ago to allow 50 boarding students
under age 18, and concerns as to detrimental effect of a
concentration of adult boarding students on the surrounding
residential uses.
The Ordinance and the Board' s decision have
every valid justification based upon the Yeehiva's proposed

intensity of use of the under 3 acre property to board nearly
100 adult men age 18-22, 24/7 on the property, which is nearly
twice the number of persons previously allowed to stay
overnight, and the inability to mitigate the substantial
detrimental effect to the public good by way of enforceable
conditions. (Doc. No. 30 I
1111
46-47)
Plaintiffs use RLUIPA as a
sword, rather than a shield as intended, and the Board would not
have approved any dormitory on the subject property regardless
of the religion of the applicant.
Plaintiffs have now moved for injunctive relief "directing"
Defendants to cease enforcement of local ordinances; ordering
the Township to "process building, occupancy and any other
permits" so that the Yeshiva can begin its interior renovations
at the subject property at 1515 Logan Road, Ocean Township; and,
directing that the minor site plan be granted to install three
handicapped accessible ramps, and seek to use the property in
3
September 2016. (Doc. No. 33-1 "Moti on for Prel i mi nary

Injuncti on,
ul .
I
p. 2)
In ju n ct i v e re l i e f i s pre m at u re an d
ina ppropria te in lig ht of the nu m e rou s f a c tu a l is s u e s a nd

Plaintiffs' inability to satisfy the applicable standards, as
the y c a nnot de mons tra te a like lihood of s uc c e s s on the me rits , a

probabi l i t y of i rreparabl e h arm , or t h at t h e D ef en dan t s an d
p u b l i c w i l l n ot b e a d v e rs e l y a f f e c t e d b y a n i n j u n c t i on .
See
Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 90-91 (3d Ci r.
1992) |
Pl ai nti ffs cannot succeed on thei r "total excl usi on" cl ai m
be cau se t h e re i s n o l an d u se re gu l at i on t h at "t ot al l y e x cl u de s
re l i g i ou s a s s e m b l i e s f rom a j u ri s d i c t i on .
Il
4 2 US C S
2 0 0 0 c c (b) (3 ) (A) (e m pha s is a dde d) ; Ad hi P a ra s a k tz hi C h a r i t a b l e v .

Twp. of W. Pikeland, 721 F. Supp. 2d 361, 386-387 (E.D. Pa.
2010) (rel i gi ous use i s not "total l y excl uded" because a
conditional use permit i s required) .
Plaintiffs' claim that the
provi si on prohi bi ti ng boardi ng students over age 18 was adopted
to ta rg e t the Ha re di J e wis h c ommunity, ha s be e n thoroug hly

debunked by the Certification of Township Planner James Higgins
P la in tiffs ' "e q u a l te rm s "
a tta c he d he re to a s Exhibit "A")
cl ai m f ai l s, as they cannot show that any Townshi p regul ati on

treats a rel i gi ous assembl y on l ess than equal terms wi th a
nonrel i gi ous assembl y or i nsti tuti on that causes no l esser harm
to the i nterests the Townshi p's regul ati ons seek to advance, and
no adult boarding schools or dormitories
religious or
nonreligious - are permitted without a use variance. Plaintiffs

cannot succeed on their "substantial burden" claim as the mere
f act that the use variance was required and denied does not
establish this claim, there were other more suitable locations
for the density of students, and the age limitations (minors
under age 18) and density of overnight boarders (50) required by
the f acially neutral and neutrally applied Ordinance are

rationally related to the described legitimate governmental
objectives to promote the public health, safety, morals, and the
general welf are of its citizens, and are the least restrictive
means available. (See Higgins Cert. I H8-11) . Finally,
plaintiffs have not shown a likelihood of success on their

"discrimination" claims, i.e., that the Board's denial of the D1 use variance was substantially motivated by hostility to the
Yeshiva and Haredi Jews based on religious denomination or
violated the Constitution, RLUIPA or the FHA; the record is
devoid of evidence that the Board was motivated by any
discriminatory animus, and the Township has historically
accommodated and approved yeshivas at this same site, as well as
multiple synagogues, Jewish schools and community centers
throughout its boundaries.
STATEMENT OF FACTS
I.
THE TOWNSHIP OF OCEAN
The Township is an 11-square-mile diverse suburban

community located in Monmouth County, New Jersey.
The Township
has previously approved at least six synagogues, many of which

have schools, several independent religious schools, and a Shore
Area Mikvah (ritual bathing f acility).
Wilensky attached as Exhibit "B,
11
111i
(See Certification of
3-12) O
The Township has a
long history of approvals of religious uses by the Planning and

Zoning Boards for synagogues, churches, youth centers, and
schools for religious purposes, many of which were granted in
the past ten years.
(Id. I
1111
3-6, 10, 12-14).
These include
the original and additional approvals for the large Magen David
Congregation on Deal Road; approval of the orthodox synagogue,
the Sons of Israel congregation; approval of the Larchwood
Minyan, a small orthodox synagogue on Larchwood Avenue; approval
of the Synagogue of Oakhurst at Bauer and South Lincoln Avenue;
approval of the Deal Sephardic Network, a Jewish Community
Center for the Sephardic Community; and, approvals for various
schools
(rd. I
1111
5~11)
The current Yeshiva at the subject property was rezoned

with the approval of the Planning Board and Council to
accommodate the specific request of the prior owner, the Deal
Yeshiva, to allow boarding of up to 50 persons including staff
6
and students, up to 18 years of age.
(Wilensky Cert., 9913-15)
In 1997-1998 the Council also created a new zone to allow 80

staff and students grades 9-12, no older than 18 years of age,
overnight, on larger parcels of at least 7 acres.
(Wilensky
Cert., 913-14)i see LDO 21-51.30(b)(3).

11.
THE SUBJECT PROPERTY AND PROPOSED SCHOOL

A.
The proposed use
The Yeshiva is the "contract purchaser" of the property at

1515 Logan Road, Wanamassa, Block 216, Lot 19, in the R-4
Residential Zone.
(Complaint,
64)
The property is a 2.927
acre parcel with approximately 336 of frontage on Logan Road,

and improved with an existing two-story 17,714 square foot
structure that has been used for educational purposes.
(Complaint, 99 65, 66).
The current Yeshiva at Logan Road was
built in the 19505 and has operated as a Jewish Hillel School.

(Wilensky Cert., 913-14>.
It was purchased by the Deal Yeshiva,
which was granted rezoning to allow boarding of up to 50 persons

including staff and students, ages up to 18. (Id.) ; LDO 215l.30(c) (3)
The Yeshiva suggests that its proposed use for 96
students is less than the occupancy use, but conflates occupancy

with the Ordinance's 50 person limit.
The Yeshiva seeks to modify and use the existing school
building as a yeshiva gedola/Talmudic Academy for 96 adult male
boarding students, ages 18~22.
The Plaintiffs describe the

7
property as "uniquely suited" to its needs in Ocean Township.

(See Doc. No. 33~1, p. 6)
The Plaintiffs assert that it was
"the only property found" during a year-long search, but

provided no evidence that other suitable properties were not
available - indeed boarding of up to 80 (minor) students is
allowed in zone R-2. (See Doc. No. 33-1, p. 6)
Rabbi Lesin testified that locating this "ivory tower" in

Ocean rather than Lakewood was desirable to keep the students'
f amily and friends from distracting them from their studies

(See n.T. 2/24/15 attached as Exhibit "c")
However, not only
is Lakewood a mere 30 minutes away, but the Rabbi acknowledged

that only some students come from Lakewood, and others come from
Brooklyn, Monsey, Deal and Oakhurst. (Id., p. l7).
Plaintiffs represent that the surrounding community will

not be disturbed because students will not leave the building or
have any visitors, cannot have cars, and otherwise are strictly
regulated.
However, as expressed more fully below, Rabbi Lesin
conceded that these conditions are not legally enforceable

against the students and the Lakewood Yeshiva has been unable to
control its students or visitors on and off the facility- (Id. I
p. 27, 31, 47).
The inability to control adult students and
enforce such "conditions" was also the subject of the Higgins

Report and Planning Expert Ricci's testimony on April 25, 2016 I
as detailed below.
8
B.
The Yeshiva's alleged hardships
The Yeshiva now asserts in its second Motion for

Preliminary Injunction that its Lakewood, N.J. f acility has
living f acilities for only one-third of its students (previously
having argued one-half) . (See Doc. No. 30, p.4)
The yeshiva
also now asserts that its student body has
gI`OWI1 s i n c e t h e
Complaint and prior Motion for Preliminary
Injunction,
but to
the extent the Yeshiva now claims that this shows a greater need
for the f acilities, this "problem" is of the Yeshiva's own
making. (See Doc. 33-2, "Declaration of Rabbi Lesion, H H9 3-4)
The yeshiva states that its needs could be accommodated by

permitting some of its students to re-locate to 1515 Logan Rd
and that certain "minor" modifications can be completed before
September
2016 to comply with building code requirements.
Notably, the Yeshiva' s Motion does not assert that it is unable

to modify the current Lakewood f acility where it has been
operating.
Also, while the Plaintiffs contend that the Yeshiva
has been unable to receive licensure of accreditation, Rabbi

Lesin conceded that the Yeshiva could operate indefinitely
without being licensed and accredited in New Jersey.
(See Doc.
No. 33-1, p . 4; Def t's Ex. c, p. 5 0 ) .

111.
THE TOWNSHIP ORDINANCES
Ocean Township has a Comprehensive Land Development

Ordinance ("LDO") regulating land use.
9
(See LDO excerpts
attached as
Exhibit "Du)
The conditionally permitted use of
the subject property is a residential boarding school facility
for no more than 50 persons staying overnight, meaning students

from grades K-12 and under 18, and staff. (Wilensky Cert. I
13).
1i
The Yeshiva acknowledges that the property is surrounded
by residential neighborhoods, including single f amily

residences. (See Doc, No. 33-1, p. 6) ; see also testimony of
Objectors' Planning Expert p. Ricci, Doc. No. 33-4, p. 28) .
The property is located in the R-4 Medium Density singleFamily Zone which conditionally permits boarding schools and
religious uses. (Doc. No. 33-4, p. 28).
In accordance with 21-
26.1(a) I principal permitted uses are: (1) detached one-f amily

dwelling and (2) Family Day Care Homes and Section 21-26.1(b)
provides for cer tain accessory buildings.
Section 21-26.1(c)
lists uses which "are permitted subject to approval of the

Planning Board and the special conditions of this chapter" : (1)
Government buildings and services; (2) Public utility
installations; (3) Churches, synagogues, parish houses, and
similar religious uses; (4) Public schools, parochial schools
and boarding schools; (5) Senior citizen housing complex; (6)
Satellite antenna dishes greater than one (1) meter in diameter;
and, (7) Community Recreation Center.
LDO 21-26.1(c)
Section 21-51.30 addresses Public, parochial and Boarding

schools, and additional requirements for Boarding Schools in the
10
R-2 Zone and R-4 Zone are addressed in subsections (b) (3) and
(c) (3) respectively.
LDO 21~51,30(b)(c).1
Section 21-51.30(c>
states that " (a) No more than 50 persons, including but not
limited to staff and boarding students shall be permitted to

remain on site between the hours of 12 AM (midnight) and 6 AM"
and
Il
(b) Boarding students shall be in grades 9 thru 12 and in
no ease shall a boarding student be older than 18 years of age

at the beginning of the academic year. ll (LDO 21-51.30(c) (3).2
In his May 13, 2015 report, Township Planner James Higgins

explained the rationale for the age and number restrictions on
boarding students in the 1997 and 1998 amendment of the
Ordinance, which was read into the record in part at the April
25, 2016 hearing. (See Pltf's Ex. G; Def t's EX. A (Higgins'
Certification) I M
2-3, 6~11; Doc. No. 33-6, p. 55-64i May 2016
Resolution, 11 22-23) ) .3 As also stated in mr. Higgins'
1 The LDO defines a private or parochial school as one which

provides instruction from Kindergarten through grade 12. LDO,
p. 2-14. Under the LDO, a boarding school "shall mean a
parochial school which provides residence halls or dormitories
for boarding of students." LDO 21~51.30.
2 Plaintiffs assert that the limitation to 50 boarding students
is "unreasonable" but this specification was enacted pursuant to
a request from the prior yeshiva in accordance with legitimate
governmental objectives. (See Wilensky Cert. , 9 13; Higgins
Cer tif.,
7-11).
3 Plaintiffs disingenuously assert that Higgins' Report suggests
that the Ordinance was developed to thwart the Deal Yeshiva and
future yeshivas, when it f act Mr. Higgins' Certification stated
that he was quoted out of context and explained that the
Ordinance accommodated the Yeshiva (See Doc. No. 33-1, p. 7, n.
2; pltf's Ex. G; Higgins Cert., 99 3, 7-14).
11
certification, students over age 18 are prohibited because they

are no longer minors; there are concerns over the use and
parking of automobiles and disruptive effect; concern that there
was no way to require adult students to remain overnight; and,
that limiting the students to 50 "took into account the nature
of the site, the nature of the surrounding area, and the
zoning. "
(Higgins Cert. I
1111
In accordance with the LDO, the Yeshiva was required to

obtain a D-1 variance to use the property as proposed.
The use
for a private school for the study of the Talmud would certainly
be permitted in the cl, C2 and C3 zones throughout Ocean
Township, and while adult educational uses are permitted in the
Township, none of these permit the boarding of students.
(Wilensky Cert., 99 15, 16).
Iv.
THE ZONING BOARD AND APPROVAL PROCESS

A.
The approval process
Both the Planning Board and Zoning Board meet once each
month as statutorily required. (Wilensky Cert
Rule
IIIBRIII 1:3-1.'*
19-21) IO Board
Each applicant is given 45 minutes,
consistent with New Jersey law and other state and Monmouth
County boards.
BR 2:2-2.
The Board consists of seven regular
4 References to "BR" are to the Rules for Township of Ocean

Zoning Board of Adjustment" and to "RGO" are to the Revised
General Ordinances, which are attached hereto as Def t's Exhibits
E and F.
12
members plus alternates, all appointed volunteers
(Cert U
1111
22, 24); BR 1:1 et al, RGO 2-6-2. Five votes are required for
approval for a D variance, and the decision must be made within
120 days unless extensions are granted.
(Cert. I
1111 23, 85) f
BR
1:3-4; 40 n.J.s.A. 40:55D-70(d)(Powers), 40:55D-73 (Time for

Decision).
Special meetings are typically held in the Town
Hall, but af ter a capacity crowd attended the December 11, 2014
meeting, it was determined that the Board would have to meet at
a
larger venue for safety purposes. (Id., I| 26) .

B.
Prior applications by yeshivas
Plaintiffs inaccurately state that two prior yeshivas f aced

withdrew their applications "in the f ace of" community
hostility.
(Doc. no. 33~1, p. 9) . Rather, 2012 applicant Beth
Midrash of Asbury Park, was illegally operating at 1515 Logan

Road without any approvals; the applicant attended one board
meeting, there was not significant opposition, and the
application was withdrawn.
(Wilensky Cert. I 11 17) . The Yeshiva
of Ocean at Deal Road was located in a different area, had a

long history of operating without approvals and of numerous code
violations, there were multiple issues with the plans and
proposals, and withdrew its application. (Wilensky Cert. 11 18).
Pltf's Exhibit J, a flyer opposing the Deal Road application,
illustrates the numerous bases for opposition, including the
housing of 60 males in 2500 square feet of space, sharing three
13
toilets and showers, with no recreation f acilities or parking,

and describes the applicant's misrepresentations, previous
violations and disregard of Township regulations.
(Pl'cf's Ex
J) . plaintiffs also mischaracterize comments by former Board

member Ms. Silvia, who did not state that no yeshiva gedola
would ever be welcome in Ocean Township, but rather specifically
referred to the Deal Road applicant and concern over that
applicant's prior violations. (See Pltf's EX. L)
v.
THE YESHIVA' S APPLICATION AND TIMELINE OF EVENTS

A.
The Yeshiva's application
The Yeshiva contends that at an initial meeting on January

14, 2014, Township representatives gave "feedback, ll but no
indication that the site was inappropriate or land use approvals
would be not obtainable. (Doc. No. 33-1, 5)
However only 30-40
s t u d e n t s w e r e o r i g i n a l l y p r o p o s e d a t t h a t t i m e . (Wilensky Cert: '
11 34).
.r
On June 11, 2014 the Yeshiva's application was filed for
minor site plan approval with a D variance, for 96 students ages

18-22 boarding at the site.
(See Wilensky Cert., 9 38)
The
application was bifurcated on July 8, 2015, to seek approval of

the use only.
(Cert. I 9 67) . During the hearings, the Yeshiva
agreed to conditions, summarized by their counsel as:

elimination of the gym; only four students/bedroom; prohibiting
smoking, cell phones, visitors, pets and bringing vehicles to
schools; restricting students to school property; one overnight
14
supervisor; and pre-arranged transportation of students. (See

Doc. No. 3-6, p. 42)
B.
Timeline for the original hearings
Approximately 425 days/14 months elapsed between the time

the application for a use change was deemed complete and the
Board's December 1, 2015 vote.
(Wilensky Cert. I W
34-82).
is not unusual for building and construction applications to

extend well beyond the 120-day time period and applicants
typically allow extensions.
(1:d., 11 33)
The first hearings were held on October 23, 2014, November

13, 2014 and December 11, 2014 on regular meeting dates with the
customary 45-minute time limit. (Id., WH! 42-44).
The fourth and
fif th hearings were held on February 24, 2015 and May 18, 2015,
in the high school auditorium and lasted three hours. (Wilensky
Cert . I
1111
50 I 59).5
The sixth hearing of July 15, 2015 was at
the high school auditorium, but closed down by the fire marshal
because the room was over capacity.
(Id. I
11 7l) .
The seventh
hearing of September 30, 2015 lasted for three hours with

approximately 1,000 in attendance.
(Id. I 1174)
The
high
school gymnasium with overflow into the cafeteria was the only
location able to accommodate all interested persons.
5
(rd.I M
Use of the high school required substantially more scheduling

time including contacting the Board of Education, Board members,
Township professionals' and applicant's counsel for available
dates and obtain School Board approval. (Wilensky Cert. , HH 2729) .
15
31-32, 73).6
The eighth hearing was held on october 7, 2015.
(Id. 11 76)
The ninth and final hearing was held on December
1, 2015 and the Yeshiva completed its case, without leaving time
for cross~examination of its final witness by the public or for
the objectors to present evidence.
(Id. I M 70, 80).
Throughout the hearings, the objectors were permitted to

cross-examine the Yeshiva's witnesses.
BR 2:2-4(1). As une
April 5, and 24, 2016 hearings also showed, there were many
concerns about the Application, including the density and age of
the students on such a small property, and the potential
disturbance to the residential neighborhood by adults students,
over which the school and Township had no control . None of the
questions suggested the Board's or objectors' attempts to
prolong the hearing process, hostility or religious bias.
Plaintiffs cite comments made by unidentified members of the
public on social media and public websites, which are private
views and conceded that no similar comments were made at: the
first nine public hearings.7
Such comments are also irrelevant
6 This location required a video conferencing system costing the

Township S4, 500 per meeting and involved additional scheduling
issues around athletic events, meetings, and the use and
replacement of chairs from the middle school. (Wilensky Cert. , H
73).
7 Citizens have a constitutional right to express their views,
which the Township cannot discriminate against based on content,
even when city officials disagree with the views expressed.
R.A.V. v. city of St. Paul, 505 U.S. 377, 382 (1992); Simon &
16
as there is no evidence that the Board gave effect to any of the

alleged private biases. Plaintiffs also mischaracterize various
statements and materials, including the Board Chairman's
comments at the February 24, 2015 hearing which simply explained
to the objectors that there is a procedure in place and that the
public will all have the right to be heard at the correct time.
(See pltf's EX. s, p. 6)_8 The "No Dorms on Logan Road" group is
not associated with the Board or Township, and there is evidence
that any alleged "organized opposition" prolonged the hearing
process for improper motives, or could be attributed to, or
influenced Defendants.
c.
The Yeshiva's refusal to grant further extensions

and Board's Resolution of January 6, 2016
The Yeshiva concluded its case on December 1, 2015 without

the objectors having an opportunity to present their case, and
refused further reasonable continuances.
By Resolution dated
January 6, 2016, the Board denied the application for use (D-1)
variance without prejudice based upon the incomplete record and
its inability to weigh the positive and negative criteria to

schuster, Inc. v. members of the n. Y. State Crime Victims Bd.,
502 U.S. 105, 116 (1991).
8 Mayor siciliano' S Facebook comments about the community and
moral beliefs were made in the context of describing the
application process and relate to a different application
receiving opposition for what the objectors referred to as a
sexually oriented business. The Mayor's second Facebook comment
was in response to candidates who ran against the Mayor and his
slate in a past election, and the Mayor did not comment on the
application. (Pltf's Ex. AA, at 1-2).
17
appropriately render a decision. (Pltf's Ex. R, p.1,
1111
15-16 I
18-19)
VI.
THE LAWSUIT, REMAND HEARINGS AND MAY 2016 RESOLUTION
Following the January 2016 Resolution, the Yeshiva filed

this lawsuit suit on January 8, 2016, and filed a Motion for
Preliminary Injunction, which Defendants opposed.
filed a Motion to Dismiss
Def endantzs
This Court issued an Order remanding
this matter for two more hearings and ordered that the Yeshiva's
Application for minor site plan approval for handicap access be
considered as a condition for approval, and that that Applicant
must apply for site plan approval within six months of the
This
adoption of the Resolution if approved. (Doc. No. 25) .
Court also determined that the proposed use was inherently

beneficial. (See Doc. No. 33-4, p. 32).
At the April 4, 2016 hearing, certain objectors presented
the testimony of Planning Expert, Mr. Ricci.
Mr. Ricci
testified that the zoning Officer applied the less stringent

setback standards for institutional use in reviewing the
Yeshiva's application and "treated the religious aspects of this
application very f airly. ll (Doc. No. 33-4, p. 29-30) .
Mr. Ricci
explained that four-point balancing test set forth in Sica vs.

Board of Adjustment of the Township of Wall, 121 NJ. 152 (1992)
is applicable, and opined that the boarding aspect is not 100%

beneficial.
(Id,, p. 32-333).
The proposed size and intensity

18
of the proposed use will have a substantial negative impact on
the area, enforcement of all conditions largely lie with the

user, and it will be extremely difficult for the Township to
enforee the Yeshiva's stipulations, and is inconsistent with the
Township' s Master Plan in maintaining the character and value of
existing residential neighborhoods. (Id., p. 36-37, 40-43, 46-
47, 50, 63-64)

Various individuals also gave testimony or made comments at
the remand hearings.
The Yeshiva dismisses the objectors'
concerns as anti-Semitism, but again the record is devoid of

evidence that the Board's decision was based upon or influenced
by bias, and the hearings also do not reflect any anti-religious
comments.
Contrary to Plaintiffs' narrative of anti-Haredi
discrimination, a suggestion that the application be approved

for a lesser number of students was met with applause,
commenters were insulted by the Yeshiva's insinuation that they

were biased, and many opponents were themselves Jewish.
Doc. No. 33-5, p. 85, 107)
(See
Neighbors of the property testified
regarding noise concerns and the unacceptable noise from the

school from only 30 boarders.
(Id., p. 75,77, 86-93). Others
expressed concerns regarding parking on their property.

P~ 76~77)
(Id. I
Some commenters pointed out the Yeshiva'S
inconsistent representations, questioned their ability to

control students and vehicles, and noted the Yeshiva's disregard
19
(Id. I p .
for ordinances in the Lakewood illegal dormitory fire
111-112I 123-124).9
VII.
THE MAY 19, 2016 RESOLUTION
At the conclusion of the April 25, 2016 hearing, the Board

unanimously voted to deny the Application and adopted a
Resolution on May 19, 2016, (Resolution, Doc. No. 31).
Contrary
to Plaintiffs' Motion, the Board expressly held that the use is

inherently beneficial
(Resolution,
11 28).
The Sica balancing
test then required the Board to weigh the benefit against the
detriments of the use, and the Board was free to find that the
inherently beneficial use did not constitute a strong public
interest at stake under Sica. (Id. I
1111
29-30) .
The Board found
that "on balance...the benefits of granting the use variance are

substantially outweighed by the detriments for the reasons set
forth herein, " and that its determination "is not a reflection
on the religious use of the property, but solely based upon the
density of the use and the inability to find satisfactory
mitigation by way of enforceable conditions. Il (Id. ,
1111
46-47) .10
9 These comments referred to the illegal dormitory operated by

the Yeshiva in Lakewood near its existing f acility, which housed
27 students without approval, and which was destroyed by fire.
(See articles "Destroyed Lakewood Home..." Asbury Park Press,
March 3, 2016 attached as Def t's Exhibit "G," and "House in
Lakewood fire..."NJ.com, March 3, 2016, as Exhibit "H.")
M The Board noted that " [t]he positive impact of this type of
inherently beneficial use is limited to 21 additional students
which does not satisfy the first prong of Sica and the need can
20
The Board resolved that based upon its findings of fact, the
Applicant did not "establish[] special reasons cognizable by the
Board" and "the granting of a use variance for the use as
proposed would cause substantial detriment to the public good
and would substantially impair the intent and purpose of the
Zoning Ordinance or the Zoning Plan. "
(Id., p. 9). The Board's
findings and conclusion are supported by the evidence, including

the Higgins Report, the testimony of Mr. Ricci, and Rabbi
Lesin's various concession that the conditions are not legally
enforceable and that the Yeshiva has been unable to enforce
similar conditions at the Lakewood yeshiva
The Resolution
shows that the Board issued a nondiscriminatory land use

decision which was in conformity with Sica and statutory and
11
Constltutlonal
conslderatlons.
STANDARD FOR PRELIMINARY INJUNCTION

To prevail on a motion for a preliminary injunction, the
moving party must show: (1) the likelihood that the moving party
will succeed on the merits; (2) the extent to which the moving
party will suffer irreparable harm without injunctive relief;
(3) the extent to which the nonmoving party will suffer
continue to be serve at the Lakewood f acility." (Doc. No. 30 I 1i
45) .
u plaintiffs mischaracterize Chairman Goode's comments which are
not an "admission" that there was no compelling interest under
RLUIPA. (See Doc. No. 33-6, p. 67-68) . Nor was there anything
objectionable by the Resolution suggesting that the Yeshiva
could operate in Lakewood, where it has been operating.
21
irreparable harm if the injunction is issued; and (4) the public

interest .
Mcneil Nutritionals, LLC v. Heartland Sweeteners,
LLC, 511 F.3d 350, 356-357 (3d Cir. 2007) (citations omitted) ;
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch,

100 Fed. Appx. 70, 7 4 (3d Cir. N.J. 2004){"Lighthouse
I") (because of early stage at which motion for injunction was

considered, plaintiff did not "make the kind of f actual showing
necessary to establish a likelihood of success on the merits,"
and also did not show likelihood of success on f acial

challenge).
ARGUMENT
Plaintiffs' unsubstantiated claims of bias have been

thoroughly debunked and they cannot prevail on their
Constitutional and statutory claims on this record, nor have
they met the other requisites for a preliminary injunction.
Plaintiff's Motion should be denied for these reasons I and in
light of the numerous unresolved f actual issues in this case.
1.
PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF

THEIR CONSTITUTIONAL AND STATUTORY CLAIMS
A.
RLUIPA, the Free Exercise and Equal Protection

clauses
RLUIPA addresses land use regulations and the religious

rights of institutionalized persons.
Lighthouse Inst. for
Evangelism, Inc. v. city of Long Branch, 510 F.3d 253, 261 (3d
Cir. 2007) ("Light:house II") ( q u o t i n g C u t t e r v , W i l k i n s o n , 544
22
RLUIPA defines the terms "religious
U.S. 709 I 714 (2005)).
exercise" as encompassing "any exercise of religion, whether or

not compelled by, or central to, a system of religious
belief [ I ] ll including
ll
[t]he use, building, or conversion of real
property for the purpose of religious exercise[.] rr
First Korean
Church of n. Y. / Inc. v. Cheltenham Twp. Zoning Hearing Bd. , 2012

u.s. Dist. LEXIS 25968 (E.D. Pa. Feb. 29, 2012)(quoting 42
U.S.C. 2000-5(7)
RLUIPA does not allow a religious
institution to operate "wherever it so chooses, without regard

for zoning rules" and such a position is "simply unreasonable
and not supported by the statute or by the First Amendment.
11
Christian Methodist Episcopal Church v. Montgomery, 2007 U.s.

Dist. LEXIS 5133, 30-31 (D.s.c. Jan. 18, 2007).
Although a new
york court may have deemed housing for a rabbinical college to

be "religious exercise, II this has not been adopted by the Third
Circuit, and Rabbi Lesin agrees that the Yeshiva is not
rabbinical college, but rather an unlicensed, unaccredited
Talmudic school. (Def t's Ex. C, p. 50) ; see Congregation
R a b b i n i c a l Coll. Of Tar tikov v. Vill. Of pomona, 138 F. Supp.
3d. 352, 424 (S.D. N.Y. 2015).
B.
Plaintiffs' "Total Exclusion" claim
RLUIPA's "Total Exclusion" provision states as follows

(3) Exclusions and limits. No government
shall impose or implement a land use
regulation that-23
(A) totally excludes religious

assemblies from a jurisdiction;
42 Uscs 2000CC(b) (3)(A)
The "total exclusion" clause expressly refers to a land use
regulation that "totally excludes religious assemblies from a
jurisdiction.
11
42 uscs 2000cc(b) (3)(A) (emphasis added)
However, "religious assemblies" are not totally excluded from

Ocean Township.
Here, LDO 21-26.1(c)(3) specifically lists the
uses in the R~4 district as "Churches, synagogues, parish

houses, and similar religious uses" as "permitted subject to
approval of the Planning Board and the special conditions of
this chapter. ll
LDO 21-26.1(a), 21~51.30(c)(3). The LDO permits

Other zones,
schools and housing communities for adults.
including C-l, C-2 and C-3 Zones would allow use as a private
Talmudic school for the study of the Talmud.
(Wiiensky Cert., 9
16).
Here Plaintiffs required a D variance and cite no authority
supporting a "total exclusion" claim where a variance is
required, and the caselaw shows otherwise.
See First Korean,
2012 U.S. Dist. LEXIS 25968, *43~44 (where religious uses

permitted in other areas by special exception church was not
totally excluded from township) ; Adhi Parasakthi, 721 F. Supp.
2d at 386-387 (no total exclusion when conditional permit

required) .
Plaintiffs rely upon cases like the distinguishable
24
Tar tikov, 915 F. S u p p . 2 d a t 6 3 7 - 6 3 8
(s.D.n.y. 2 0 1 3 ) , w h e r e a
proposed rabbinical college required a change to the ordinances

via amendment, not a variance as here.
Indeed, "broad latitude" has been given to states and local
communities by the federal courts to determine their zoning
plans and that " ia] n e c e s s a r y c o r o l l a r y o f t h e e x t e n s i v e z o n i n g
authority bestowed upon local municipalities... is the authority

to make distinctions between different uses and to exclude some
uses within certain zones.
Congregation Kol Ami v. Abington
T w p . , 3 0 9 F . 3 d 1 2 0 , 135-136 (3d Cir. 2 0 0 2 ) .
The Third Circuit
Court acknowledges that "zoning is by its very design

discriminatory, and that, alone, does not render it invalid."
Id
Congress plainly did not intend to allow a per se "total
exclusion" violation where the proposed religious use is

available by permit or variance, and Plaintiffs are not likely
to succeed on their "total exclusion" claim.
c.
Plaintiffs' "Unreasonable Limitations" claim
RLUIPA's "Unreasonable Limitations" provision states as

follows :
(3) Exclusions and limits. No government

shall impose or implement a land use
regulation that... (B) unreasonably limits
religious assemblies, institutions, or
structures within a jurisdiction.
42 uscs 2000ce(b) (3) (B)
25
From the plain language of RLUIPA, section (b) (3) (B)
ll
[i]t:
is clear ...that the purpose of this provision is not to examine

the restrictions placed on individual landowners, but to prevent
municipalities from broadly limiting where religious entities
can locate . N
Church of Scientology of Ga. , I n c . v . C i t y o f
Sandy Springs, 843 F. supp- 2d 1328, 1377 (n.D. Ga. 2012)

The Township has not imposed regulations "broadly limiting"
where religious entities can locate.
Rather, as explained
previously, the LDO specifically allows such uses "subject to

approval of the Planning Board and the special conditions of
this chapter."
LDO 21-26.1(a) . Plaintiffs cannot show that the
LDO "unreasonably limits" religious "assemblies, institutions,

or structures."
Looking to the f actors considered in such claims, there is
no evidence of disparate treatment by the Defendants.
While
Plaintiffs complain of the cost, the expense of applying for a

use variance are not an "unreasonable limitation" in a RLUIPA
claim.
S e e C i v i l Liber ties for Urban Believers v. C i t y o f
Chicago, 3 4 2 F . 3 d 7 5 2 , 7 6 1 - 7 6 2 ( 7 t h C i r . I l l . 2003) (cost and
procedural requirements of use and development approval

processes did not impose substantial burden on religious
exercise)
1
J
Stuart Circle Parish v. Board of Zoning Appeals of
Richmond, 946 F. Supp. 1225, 1237 (E.D. Va. 1996).
Requiring a
conditional use permit is not an "unreasonable limitation" on

26
"religious assemblies, institutions, or structures within a

jurisdiction. ll
See Hope Rising Cmty. Church v. Municipality of
Penn Hills, 2015 U.S. Dist. LEXIS 160852, 12-13 (W.D. Pa. Oct.
28I 2015) ;Pet:ra Presbyterian Church v. vill. of Northbrook, 489

F.3d 846 I 851 (7th Cir. 2007) . Any entity that desired to use
the property as a boarding school for 96 adults would have
expended similar costs
In addition, there is no evidence that there are no
available sites, as Plaintiffs claim.
Throughout the Township
there are approximately six synagogues and multiple independent

Jewish schools I in addition to many religious entities and
schools of other denominations
There are other zones,
including C-1, C-2 and C-3 Zones would allow use as a private
Talmudic school for the study of the Talmud.
16).
(Wilensky Cert. I 9
Religious institutions are conditionally permitted in the
R-4 zone where the Yeshiva wants to locate with a density of 50

boarding students - however the Yeshiva insists upon twice that
many boarders
The R-2 zone allowing for 80 boarding students
on properties of seven acres or less, thus permits a density

Therefore Plaintiffs are wrong
similar to Plaintiffs' proposal
by claiming that the use was denied on grounds that would apply
everywhere in the Township .
Rather, it was the detrimental
effect on the surrounding residential neighborhood from the

substantial deviation from the ordinance by the Yeshiva's
27
extreme density of 96 boarders on a less~than three acre

property (33.13 persons/acre) , and the inability to enforce any
"conditions" concerning the conduct of the adult students. (See
Resolution)
Also, the age limitations in the ordinance are not a n
unreasonable limitation, and are related to a legitimate
governmental objective as explained in the Higgins Report and
Higgins Certification. The Yeshiva has not shown it is likely to

prevail on its "unreasonable limitations" claims, and at a
minimum, factual issues require that an injunction be denied.
D.
Plaintiffs' "Substantial Burden" claim
RLUIPA's "Substantial Burden'" provision states as follows

(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.
42 USCS 2000cc(a)
To succeed, the plaintiff must show
that a Zoning Board' s action was a substantial burden on

religious exercise, was not done in fur therance of a compelling
government
interest I and was not imposed in the least
28
restrictive manner
See Congregation Anshei Roosevelt: v.
Planning & Zoning Bd. , 338 Fed. Appx. 214, 218 (3d Cir
2009) (citing W e s t c h e s t e r D a y S c h . v. Vill. o f Mamaroneck, 386
F.3d 183
190 (2d Cir, 2004)>
RLUIPA does not include a definition of the term
"substantial burden" on religious exercise
The Third Circuit
previously deemed a substantial burden to be one that

"necessarily bears direct, primary, and fundamental
responsibility for rendering religious exercise...effectively
impracticable. ll
Lighthouse Inst. for Evangelism, Inc. v. City
of Long Beach, 100 F. Appx. 70, 77 (3d Cir. 2004) ("Lighthouse

I") (citations omitted)
In the subsequent Washington, the
Third Circuit stated that " 'substantial burden' should be

interpreted broadly, but in line with prior Supreme Court
precedent, " although defined the term in the context of the
"Institutionalized Persons" provision.
Washington v. Klem, 497
F.3d 272 I 280 (3d Cir. 2007) ; see Albanian Associated Fund v.
Twp. of Wayne, 2007 U.S. Dist. LEXIS 73176, 24-27 (D.n.J. Oct.
1 I 2007).
plaintiffs are unable to show that their religious
exercise is effectively impracticable or that the Yeshiva was

pressured to modify its beliefs.
There is no substantial burden based upon
the existence of zoning regulations, need to
obtain a variance, or cost
29
Plaintiffs claim a "substantial burden" on the basis that

the proposed use is "forbidden outright" in the Township.
However, land use restrictions do not constitute a substantial
burden under RLUIPA where they are "neutral and traceable to

municipal planning goals" and where there is no evidence that
government actions were taken because of religion.
Vision
Church v. vill. of Long Grove, 468 F.3d 975, 998-999 (7th Cir.
2006); christian Methodist, 2007 U.S. Dist. LEXIS,*30-31
Requiring the Yeshiva to apply for a use variance is not a

substantial burden.
where a zoning ordinance requires religious
institutions to go through a routine permit or variance

application process, such ordinances "do not run afoul of
RLUIPA. 11
Tartikoff,
2015 U.S. Dist. LEXIS 132714, *170.
Cost:
of the approval process and scarcity of property are do not

"render impracticable the use of real property...for religious
exercise I much less discourage churches from locating or
attempting to locate" at the desired location.
Al Falah Ctr.
v. Twp. of Bridgewater, 2013 U.S. Dist. LEXIS 190076, 36-37

(D.n.J. Sept. 30, 2013) (quoting c.L.u,B., 342 F.3d at 761).
Plaintiffs cite no cases where conditions as to age were

found to be a substantial burden.
Also, restrictions on the
student body size can be analogized to congregation or building

size restrictions, which do not violate the substantial burden
provision. See Living Water church of God v Char ter Twp. Of
30
Meridian, 258 Fed Appx 729 (6th Cir. 2007) (denial of permit: to
build larger f acility not substantial burden) ; Vision Church,
397 F. supp 2d 917, aff'd, 468 md 975 lr-,th Cir.),cert den, 128
s. ct 77 I (2007).
2.
The Ordinance is f acially neutral, there is

no evidence of discriminatory animus and
Plaintiffs were not targeted and were
treated f airly
The Ordinance is facially neutral and devoid of references

suggesting that i2 is aimed at religious uses only.
See Bethel
World Outreach Ministries v. Montgomery County Council, 706 F.3d

548 f 556 (4th Cir. Md. 2013) (statute must target plaintiff's
religious beliefs or practices)
Facial challenges are
'generally disf avored, ' because f acial invalidation is 'strong
Il
medicine ' that "has been employed by the [Supreme] Court

sparingly and only as a last resort."
nat 'l Endowment for the

A "successful f acial
Arts v. Finley, 524 u.s. 569, sao, (1998)
challenge requires the challenger to 'establish that no set of

circumstances exists under which the Act would be valid.
Brown v. City of pittsburgh, 586 F . 3d 263
1 Il
269 (sd. Cir. 2009)
(quoting United States v. Salerno, 481 U.S. 739, 745, (1987))
Use as a boarding school for 96 students age 18~22 is only one

of many uses not specifically permitted without a D~1 variance.
In the Free Exercise context, an ordinance is properly
considered as a neutral law of general applicability when
31
churches are only one of numerous uses which are not

specifically permitted uses and the purpose of the ordinance is
not aimed at speech, but rather at other governmental ends
Lighthouse I, 100 Fed. Appx. at 75-76.
See
Facially neutral permit
and variance requirements have been held to be a minimal

"burden" only, and not protected by RLUIPA.
Dist. LEXIS 132714
*170-172.
Tar tikov, 2015 U.S.
As addressed fur ther below, the
record established here that the requirement for approval for

the proposed boarding use was enacted to protect the Township's
compelling governmental interests - not speech - and there no
less restrictive means of serving the compelling interest behind
these requirements.
Plaintiffs also do not state a substantial burden argument
based upon their debunked claim that the Ordinance was developed
to target them based upon an out-of context comment by Township
Planner Higgins explaining his knowledge of the purpose of the
ordinance. (See Higgins Certification, HH 14-16) .
The
unrebutted evidence is that the Ordinance was developed years

ago to accommodate the specific request of the former yeshiva
and Township' S legitimate governmental concerns
Cer t. I
1111
7-16)
(Higgins
Nothing suggests that Haredi men are the
target of the ordinance, which was enacted and modified 15 years

Also, again, the
before the instant applieation.
Plaintiffs were treated f airly throughout the process, and

32
again, the Yeshiva proposed only 30-40 students at the initial

meeting with the Township representatives, but then tripled that
number to 96 in its actual Application. (Wilensky Cert. , 11 34)
3.
There was no substantial burden on the basis

of any delay
Also, any purported delay, uncertainty and expense with

regard to the initial hearings are attributable primarily to the
Yeshiva, and not to Defendants and were also inadvertent and
unintentional thus not a substantial burden.
See Amerada Hess
Corp. v. Burlington County Planning Bd. , 195 N.J. 616 I
2008) .12
44
(n.J.
The Yeshiva was not concerned about the 120~day
decision period when it granted extensions so that it could
present its own case in full.
The hearings were conducted in
accordance with the Board Rules and due process, were not
unjustifiably protracted or unf air to the Yeshiva which had the
opportunity to control hearing dates and present its full case.
see BR 2:2-4(d)-(j); see also Defendants' Brief in Opposition to
Motion for Preliminary Injunction, Doc. No. 22.
The Board's
reasoning, the unenforceability of the considered conditions I
12
The Yeshiva and its counsel repeatedly rejected hearing dates

in f avor of dates which were weeks or months later, submitted
incomplete applications and late payments, did not offer
alternative hearing locations, were unprepared, requested
additional hearings and time to provide missing information;
used the entire length of hearings for its experts' testimony,
and recalled experts for additional testimony. (Wilensky Cert. ,
11 45, 46, 61, 66-67, 73, 82; pltf's Ex. mm).
33
and the interests at stake are all clearly stated in the

Resolution and supported by the record.
4.
There is no substantial burden based upon

the Board's denial of a variance and the
claim of lack of suitable alternatives
The remand hearings were conducted in accordance with this

Court ' s Order and the mere f act that this Court deemed the use
beneficialI did not require the Board to grant the variance
under Sica, supra, contrary to any suggestions in Plaintiffs'
Motion
Plaintiffs also argue that under the Third Circuit's

nonprecedential decision in Anshei Roosevelt, and Second
Circuit:'s decision in Mamaroneck, the Board's denial and alleged
lack of alternatives preset a substantial burden.
However, i n
Anshei Roosevelt the board had not reached a decision and the
Third circuit held that that the factual record was
insufficiently developed to determine an effect on the
plaintiff's use
338 Fed. Appx. at 218-219
Plaintiffs cite
Mamaroneck, but the Third Circuit has not expressly adopted the
Second Circuit's "quick, feasible, and financially feasible" and
"complete/conditional" standards
See 504 F. 3d. at 351-352.
Moreover, although a variance for the subject property was

denied, the Yeshiva' S use can be obtained by varianee in other
areas of the Township, many of which are f ar more suitable fore
96 boarding students than the small parcel at 1515 Logan Road.
34
11 42).
(See Resolution,
The Plaintiffs' "perceived
unavailability of alternative space" within zoning districts

does not constitute a substantial burden within the meaning of
RLUIPA "as these difficulties are f aced by all land users, not
merely churches
11
Lighthouse Christian Ctr. , Inc. v. City of
Reading, 2006 U.S. Dist. LEXIS 52432, *16-21 (E.D. Pa. June 19 I
2006) , citing Midrash Sephardi, Inc. v. Town of Surfside, 366
342 F.3d
F.3d 1214, 1227 l'l.l1 (llth Cir. Fla. 2004) ; C.L.U.B. I
at; 76l~762.
The Plaintiffs also cannot show a substantial
burden on the mere basis that they believe that the Yeshiva
would be denied approval at a more suitable location."
5.
There was no substantial burden as any

conditions were unenforceable and
unrealistic conditions and the Board
properly applied the Sica balancing test
Plaintiffs also argue that the Board's refusal to place

conditions is the "ultimate burden,
11
citing Anshei Roosevelt
which does not support this proposition.
In addition, the
record shows that the Board considered the Yeshiva' S proposed

"self-policed" conditions, but found them to be unrealistic and
unenforceable.
The Board cited planning Expert Ricci's
testimony that the conditions were "difficult, if not

impossible, to enforce, thus, not being realistic conditions to
13 Again, the Township's R~2 zone allows 80 boarding students;
while a variance would still be required for 96 adult students,

this increase is f ar less drastic than one from 50 to 96
students. (See 33-5, p . 38).
35
reduce the adverse impact of the use, " and also noted that
cross-examination of the Rabbi and Yeshiva' s Planner questioned
credibility and the ability to enforce the conditions. (See
Resolution,
1111
9, 24, 16, 38).
As a result, the Board "did not
find that the conditions are sufficient to prevent adverse,

detrimental effects in that the only enforcement will be the
alleged expulsion of a student who violates Same and there is no
or at least a burdensome ability by the municipality to enforce
these conditions on adults, which the students will be at age 18
to 22
ll
and that the Township had no authority to limit the
students "from leaving the site at any time, day or night, nor
can they be prevented from using the nearby park and other
commercial f acilities."
(Resolution, 11 33-34)
Indeed Rabbi Lesin himself admitted that that the

"official" policy preventing students from leaving the grounds
would be enforced by threat of expulsion, but that students
could not legally be prevented from leaving the grounds
Ex. C , P . 27, 31).
(Def t's
As the Board noted, Rabbi Lesin also
admitted that the Lakewood Yeshiva has been unable to control

the same .students that will be housed in Ocean Township,
or
their visitors, on and off the f acility: "over there we can't

control the visitors and we can' t control where the students are
going.
11
(Id., p . 47; Resolution,
11 44))
36
The Board also found that testimony indicated that the

Lakewood yeshiva has difficulty in controlling the students,
they are permitted off campus, have been seen smoking around the
Academy and that recently a fire broke out in the house supplied
by Applicant which was being used as an illegal dormitory used
to house 27 student while under Rabbi Lesin's supervision." (See
Resolution, 11 43; Doc. No. 33-5, p. 123~124).
In addition, the
Board observed that Rabbi Lesin will not be on-site overnight

and will not be able to personally enforce the conditions
(Resolution,
11 39).
The Rabbi conceded that the 96 adult men
would be supervised overnight by only one person, a non-staff

member, who is "just someone that we will hire to watch the
students I
II
and who has no authority to expel students. (Def t's
Ex. c, p. 17, 48).
All of this went to the Rabbi's credibility.
The Board further found that
ll
[t] here is no way to prevent
the 96 students from using the exterior of the site and

congregating there at any time day or night and although not
intentional I prevent nearby residential neighbors from the
peaceful enjoyment of their property. (Resolution,
11 36)
M The credibility of the Rabbi as to control over his students

and compliance with local authorities was also brought into
question when he was questioned about the murder of a 16 year
old student in the Long Island Mestiva's dormitory in 1986. He
was confronted with a description of a quote by the Chief of
Detectives of the Nassau County Police Department that the Rabbi
and other staff members hampered that investigation. (See Def t's
Ex. C, p. 12-14, 51-55) . Over objection, the quote was not read
at the hearing, (Id., p. 52-54).
37
Indeed, the Rabbi testified that students can leave the

building, that all 96 congregate for studies/discussion until
11:15-midnight, and that there is no lights-out policy or any
policy preventing students from theoretically walking around the
grounds all night . (Def t's Ex. c, p. 36-37, 40, 44-45).
The
Board also stated that " [o}ther than limiting the parking spaces
on site I there is nothing to prevent a student from parking his
car on public streets in the area which parking is permitted at
all times and the Township cannot enforce the prohibition of
students having cars, nor their right to park on streets in the
area. ll (Resolution, 11 35) .15
This was supported by the Higgins
Report (and Certification) and Mr. Ricci's testimony

Also I as the Board found, enforcement of the conditions
"becomes a burden on the surrounding property owners and
municipality to enforce, and as such do not satisfy the third
prong of the Sica test
(Resolution, 11 41) .
Plaintiffs'
suggestion that the Township should be tasked with enforcing the

Yeshiva's students* violations is absurd, because the Township
cannot require the students to remain on school property or
prevent them from having vehicles, therefore plaintiffs reliance
M The Rabbi' s Declaration asserts that no students in the

Mestiva of Long Branch "drove automobiles to school, and we
never had a problem with this rule, " but did not state that the
students did not disobey rules regarding leaving the site,
visitors, congregating, smoking, cell~phones. (Doc. No. 33-2, M
8-9).
38
on Kali Bari v. Bd. of Adjustment, 271 n.J. super. 241 (App.

Div. 1994) is misplaced.
As set forth in Orloski v. Planning
Bd. of Borough of Ship Bottom, 226 N.J. Super. 666, 672 (Law
Div. 1988) "[t]o be valid, conditions must... (4) be reasonably
calculated to achieve some legitimate objective of the zoning

ordinance,
11
thus requiring that they be enforceable. (quoting 3
Rathkopf, The Law of zoning and Planning, 40.02 (4th ed.

1987))
Finally, the Board properly applied the Sica balancing test

in accordance with New Jersey law and held that the proposed use
was too intense for the site, that on balance, the benefits of
granting the ordinance are substantially outweighed by the
detriments I and that its determination was not a reflection on
the religious use, but solely based upon density and inability
to find satisf actory conditions, and the substantial impairment
of the intent and purpose of the Zoning Ordinance and Zoning
Plan. (Resolution,
1111
42, 46-47, p. 9)
Contrary to Plaintiffs'
motion, the decision was based upon evidence showing the clear
detrimental effect of the use, there is no evidence that
consideration of density was pretextual, or that certain
concerns or "fears" of residents were overvalued.
The stated
goals of the LDO "is to encourage the future development and

maintenance of this area as a residential use,
Il
and while
allows smaller lot sizes, it does not allow the excessive

39
intensity of use sought by the Yeshiva on those lots. See LDO

21-26
Again, the Yeshiva may have promised conditions, but the
Board could find from the evidence that they were unrealistic I
and their specifics were either enforceable or placed an undue
burden upon the Township and residents

The ordinances also represented the least
restrictive means of achieving a compelling
governmental interest.
E.
Even if, arguendo, Plaintiffs could show a substantial

burden, they cannot show that the Board' s action was not "done
in fur therance of a compelling government interest, and not
imposed in the least restrictive manner." See Anshei Roosevelt,
338 Fed. Appx. at 218. " [L]and use regulations must possess a
legitimate interest in promoting the public health, safety,
morals, and the general welf are of its citizens in order to pass
scrutiny. ll Kol Ami, 309 F.3d at: 133.
Resolution of a least
restrictive means issue "is an inherently f act-intensive

question.
11
R o m a n Catholic Diocese of Roekville Ctr. v. Inc.
Vill. of Old Westbury, 2015 U.S. Dist. LEXIS l1'7808 (E.D.N.Y,

Sept. 3, 2015)
For the reasons expressed infra, the Township's zoning

scheme was in furtherance of compelling government interests
imposed in the least restrictive manner, as shown by the text of
40
the LDO and evidence, including the Higgins Report, Higgins

Certification and Mr. Ricci's testimony.
The stated purpose of the R-4 Zone: "is to provide for
smaller lot sizes to meet the desires of a certain segment of
the population wo need and desire lower cost housing and to
zone the area in conformance wi&h existing lot sizes
The
provisions and regulations set forth herein encourage the future

development and maintenance of this area as a residential use
LDO 21-26
The Township had a compelling interest in
restricting the age and number of boarding school students,

based on concerns as to the detrimental effect on the
surrounding residential neighborhood, involving disruption,
noise
Cert: . I
traffic and parking, as described above. (See Higgins

9191
7-11) I1 LDO 21-51.30; Resolution, M
2o~23))
Mr. Ricci's testimony further clarified the compelling

government interest at stake and impact on that interest if the
use was granted.
He testified that the proposed size and
intensity of the use will have a substantial negative impact on
the area, enforcement of all conditions largely lie with the

user, and it will be extremely difficult for the Township to
enforce the Yeshiva's stipulations. (Doc. No. 33-5 I p. 50)016
The proposed use would "dramatically chang[e] the character and
M Mr. Ricci also testified that the Yeshiva had not presented
all information needed for an informed decision. (Id. , p. 35)
41
intensity of the use, " and the application is inconsistent with

the Township's Master Plan in maintaining the character and
value of existing residential neighborhoods . (Id., p . 36-37; s e e
Resolution,11 37)
As to intensity, Mr. Ricci opined that under the current
ordinance, a 10 acre lot would be required to board
approximately 100 individuals overnight no matter the
age, i n
the R-l, R1T, R-3/PRD, AR-3/PRD and R~7 zones. (Id., p. 37-38).
The R-2 zone permits up to 80 persons to board on seven acres or
less, the R4 zone permits up to 50 persons on 2 acres or more
Id., p . 38).
17
The magnitude of the deviation from the Ordinance
is substantial, as the Application proposes to double the

m a x i m u m number of persons anticipated for this area (R~4) which
is ll persons/acre, to a population density of 33.13

persons/acre. (Id., p . 37-38, 44).
Housing 97 persons in the at
four persons/room approximates only 50 sq. f t/person, the

smallest living accommodations Mr. Ricci ever witnesed. (Id.
45) .
*f
Because the use does not meet the required side yard
setback, the population intensity is "heavily felt" by

neighboring property and is only half the size required for that
N Mr. Ricci quoted Section 40I55D-70D, which states "No variance

relief may be granted under the terms if 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 impairing of the intent and purpose
of the zoning ordinanee." (Id., p. 40).
42
intensity
a "substantial departure from the municipal Master
Plan and zoning regulations. ll (Id., p. 45-46, 49) . As to the age

of the students, Mr. Ricci opined that Mr. Higgins' planning
letter shows clear legislative intent not to allow adults for
the expressed concerns relating to the inability to control
legal adults in a residential neighborhood, and opined that the
application, "as a result of its intensity and age of the
student population is 100% inconsistent with the legislative
intent and purpose of the zone plan.
ll
(Id, P
y
40-44.18
Also, the consideration is the use, not the applicant,

because as Mr. Higgins and Mr. Ricci described, parcels of land
may be transferred and a different operator may wish to use the
property with different parameters. (See May 19 Resolution, 11
24
40).
The evidence also shows that the Township' s restrictions as

to the number of boarding students and their age (minors) , is
the least restrictive means to further those compelling
interests
Again, the Ordinance specifying 50 boarders/staff,
from grades 9 to 12 was developed at the specific request of the
m mr. Ricci also testified that higher Jewish education is

provided in the "community nearby, " there will only be a minor
marginal increase in the number of religious education students
in the area, and this is not relevant to the community's ability
to employ reasonable standards to avoid substantial negative
impaets to the quality of its residents' lives; and, there are
concerns over environmental impact and parking issues. (Id. , p.
42-43, 46-47).
43
Deal yeshiva.
(Higgins Cert., 998-11)
In determining the
density of the students, nature of the site was considered, and

a 2. 9 acre site could be developed at a generous maximum for a
total population of 48, a more realistic population closer to
30)
(Higgins Cert
to minors
W 11) .
The students' age was restricted
because adult students "tend to own and drive
automobiles I
II
and the governing body "was concerned that a
concentration of young adults at such a f acility, with or

without car, would be disruptive to the surrounding residential
neighborhood, particularly if larger groups of students came and
lef t the facility late at night."
(Id.,
11 8)
In addition. the
Township could not legally require adult boarding students to

remain on site overnight, or overnight supervision.
(Id., 11 9)
Even if cars were prohibited on site, there was no way to

control off-site parking on local streets, the park, or
commercial parking lots which would impact local streets and
result in neighborhood disruptions
(rd. I 11 11).19
For all of the above reasons, the Board did not impose a
substantial burden on the Yeshiva as defined in this Circuit and
elsewhere I and its Resolution speaks for itself.
The Board' s
w The governing body also took into account the nature and the
surrounding area and zoning in arriving at the number of persons
staying overnight (50) , and considered f actors such as how many
single f amily dwellings and occupants the site could
accommodate. (Higgins Cert., 9 10) .
44
action was in furtherance of a compelling government interest,

and imposed in the least restrictive manner.
F.
The Plaintiffs' discrimination claims
Plaintiffs are unable to succeed on their Constitutional

and statutory discrimination claims
RLUIPA's non-
discrimination provision at section 2000cc(b) (2),"prohibits
land-use regulations that disfavor religious uses relative to

nonreligious uses."
19 I
Albanian, 2007 U.S. Dist. LEXIS 73176, 18-
Notably, "First Amendment rights of freedom of religion and
assembly do not give religious organizations a pass on zoning

regulations,"
Affordable Recovery Hous. v. City of Blue Island,
2012 U.S. Dist. LEXIS 97621 (N.D. Ill. July 13, 2012.
There is
no Free Exercise Clause violation where a burden on religious

exercise is the incidental effect of a neutral, generally
applicable, and otherwise valid regulation, and in such cases
the regulation need not be justified by a compelling

governmental interest
Employment: Division, Department of Human
Resources of Oregon v. smith, 494 u.s. 872 (1990) ; Church of the

Lukumi Eabalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
The record is completely devoid of evidence that the

Board's decision was motivated by discriminatory animus. Under
the Constitution and RLUIPA, the government is not coextensive
with the people, and the people do not establish government
purpose. In this case , the f acts show that to the extent there
45
were any statements of animus uttered, they were solely by

private actors. Lugar v. Edmondson Oil Co. , 457
u.s 922, 936
(1982) ; United Broth. of Carpenters and Joiners of America,
Local 610, AFL-CIO v. Scott, 463 U.S, 825, 832 (1983);Jordan v.

Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (3rd Cir
1994) ; Listecki v. Official Committee of Unsecured Creditors,
780 F.3d 731 (7th Cir. 2015) . None of the private comments cited
by Plaintiffs reflect the views of Township officials, or show
that the Township' s land use scheme or Board's conduct were
manipulated by "hostile" residents or motivated by anti~Semitic
or anti-Haredi Jewish animus
At the most I statements of
members of the public may raise a f actual issue as to whether

the local government shares the same views such that the
plaintiff shows a prima f acie case. See Tartikov, 915 F. Supp
2d at 616-617. The Plaintiffs' mischaracterization of various
comments has been previously discussed at length.
Plaintiffs utterly f ail to show that that the Defendants
discriminated against them by the imposition or implementation
of a land use regulation on the basis of religion, and any
f actual issues should be resolved by denying an injunction.
G.
Plaintiffs' "Equal Terms" claim
RLUIPA's Equal Terms provision provides that
rr
[n]o
government shall impose or implement a land use regulation in a

manner that treats a religious assembly or institution on less
46
than equal terms with a nonreligious assembly or institution."42

USCS 2000CC(b) (1)
A religious plaintiff under the Equal
Terms Provision must show: (1) it is a religious assembly or

institution, (2) subject to a land use regulation, which
regulation (3) treats the religious assembly on less than equal

terms with (4) a nonreligious assembly or institution (5) that
causes
no
advance 0 II
lesser harm to the interests
the regulation seeks to
Lighthouse II , at 270.
At a minimum, Plaintiffs cannot satisfy the last three

elements because they have not shown that any Township
regulation treats a religious assembly on less than equal terms
with a nonreligious assembly or institution that causes no
lesser harm to the interests the Township' s regulations seek to
advance 1
Therefore there is no "strict liability. ll
The zoning scheme, R-4 zone and Ordinance make no

distinction between religious and non-religious entities with
regard to the proposed use
The Township does not prohibit
religious schools for adults over age 18; use for a private
school for the study of the Talmud would be permitted in
elsewhere, including the Cl, C2 and C3 zones.
(Cert., 11 16).
none of the adult educational uses cited by Plaintiffs permit

the boarding of students regardless of whether they are
religious or non-religious,
(See Wilensky Cert.,
15)
Boarding of students over age 18 is not permitted by any

47
institution, secular or non-secular

2012 U.S. Dist. LEXIS 25968 *41-42.
See First Korean Church,
Nor is any religious or
nonreligious entity permitted to boarding over 50 minor students

in the R-2 zone.
The nonreligious uses argued by Plaintiffs are
not appropriate comparators

The point is that Plaintiffs cannot identify any similar
nonreligious assemblies and institutions operating as boarding
schools for adults students between the ages of 18-22, therefore

the Yeshiva cannot point to any which cause no lesser harm to
the Township's interests that the regulations - the R-4 zone and
the ordinance - seek to advance .
Plaintiff also f ails to take
the density of the use - 96 adult boarding students on less than

three acres - into account.
Plaintiffs have not shown that they are likely to succeed
on their "equal terms" claim or any of their claims, there are
numerous f actual issues, and Plaintiffs' Motion should be
denied .
H.
Plaintiffs will not suffer irreparable injury if

the injunction is denied
Plaintiffs have f ailed to show an irreparable injury on the

basis of any alleged deprivation of First Amendment freedoms or
violation of their rights under RLUIPA.
They can continue to
utilize their Lakewood facility just as they have been, and

their time-constraints are sel_-imposed.
48
I.
Granting preliminary relief will cause

irreparable harm to the Defendants and is
contrary to the public interest
Plaintiffs also f ailed to show that Defendants will not be

harmed if the injunctive relief is granted.
Defendants would be
required to expend substantial time and financial resources in

the permitting process so that construction could begin, despite
having denied the use and without the merits having been
resolved.
The public interest is also best served by denying
injunctive relief for these same reasons I and because the

proposed renovations will cause noise, traffic and other
disruption despite the denial of the use variance
CONCLUSION
For the above reasons I Defendants I the Township of Ocean
and Zoning Board of Adjustment oi the Township of Ocean,
respectfully request that this Honorable Court deny Plaintiffs'
Motion For Preliminary Injunction.
MARSHALL DENNEHEY WARNER
COLEMAN & GOGGIN
Attorneys for Defendant,
By: /s/ Howard B, Mankoff
HOWARD B. IVIANKOFF, ESQ.

Dated :
LEGAL/1o570a421.v1
49

Ocean Township and Zoning Board Opposition To Preliminary Injunciton Motion - July 1 2016

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Case 3:16-cv-00096-FLW-DEA Document 36 Filed 07/01/16 Page 1 of 55 PageID: 1810

IN THE UNITED STATES DISTRICT COURT

CASE NO.: 3 : 16-cv~00096~FLW-DEA

TOWNSHIP OF OCEAN, N.J. and

Howard B. Mankoff, Esq.

Case 3:16-cv-00096-FLW-DEA Document 36 Filed 07/01/16 Page 2 of 55 PageID: 1811

.ii, iii, iv, V

u 000 no nun 09900990

Case 3:16-cv-00096-FLW-DEA Document 36 Filed 07/01/16 Page 3 of 55 PageID: 1812

Albanian Associated Fund v. Twp. of wayne,

Affordable Recovery Hous. v. City of Blue

Al Falah Ctr. v. Twp. of Bridgewater, 2013 U.S.

Anshei Roosevelt, 338 Fed. Appx. at 218

Bethel World Outreach Ministries v. Montgomery

Brown v. City of Pittsburgh, 586 F. 3d 263 (3d. Cir. 2009)

Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86,

Christian Methodist Episcopal Church v. Montgomery,

Church of the Lukumi Babalu Aye, Inc. v. City

342 F.3d at 761)

Civil Liberties for Urban Believers v. City of

Congregation Anshei Roosevelt v. Planning &

Case 3:16-cv-00096-FLW-DEA Document 36 Filed 07/01/16 Page 4 of 55 PageID: 1813

Congregation Kol Ami v. Abington Twp.

309 F.3d 120,

135 (3d Cir. 2002)

Cutter v. Wilkinson, 544 U.S. 709 (2005)

Employment Division, Department of Human

First Korean Church of N.Y. , Inc. v. Cheltenham

Hope Rising Cmty. Church v. Municipality of

Jordan v. Fox, Rothschild, O'Brien & Frankel I 20 F. 3d

Kol Ami, 309 F.3d at 133

Lighthouse Christian Ctr. , Inc. v. City of

Lighthouse Inst. for Evangelism, Inc. v. City

Listecki v. Official Committee of Unsecured

Living Water Church of God v Charter Twp. of

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)

Mcneil Nutritionals, LLC v. Heartland Sweeteners, LLC,

Midrash Sephardi, Inc. v. Town of Surfside,

Nat'i Endowment for the Arts v. Finley,

Case 3:16-cv-00096-FLW-DEA Document 36 Filed 07/01/16 Page 5 of 55 PageID: 1814

Petra Presbyterian Church v. vill

Rabbinical Coll. Of Tartikov v. vill. Of Pomona,

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)

Roman Catholic Diocese of Rockville Ctr. v. Inc.

Simon & Schuster, Inc. v. members of the

Stuart Circle Parish v. Board of Zoning Appeals

2015 U.S. Dist. LEXIS 132714 I *170

United Broth. of Carpenters and Joiners of

United States v. Salerno, 481 U.S. 739 (1987)

Vision Church v. vill. of Long Grove, 468 F.3d

Westchester Day Sch. v. Vill. of Mamaroneck,

.1, 4, 23, 24, 25, 28, 45, 47

Case 3:16-cv-00096-FLW-DEA Document 36 Filed 07/01/16 Page 6 of 55 PageID: 1815

Kali Bari v. Bd. of Adjustment, 271 N.J. Super.

Orloski v. Planning Bd. of Borough of Ship

40 n.J.s.A. 40:55D-'70 (d)

Case 3:16-cv-00096-FLW-DEA Document 36 Filed 07/01/16 Page 7 of 55 PageID: 1816

Defendants, the Township of Ocean and Zoning Board of

Yeshiva Gedola Na'os Yaakov's ["the Yeshiva"]

and property owner Zebra Holdings II LLC commenced this lawsuit

and the New Jersey Law against Discrimination.

Plaintiffs initially challenged the Board's December 1,

and Pltf's Ex. R, "January 2016 Resolution") .