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41034.00103-HBM/LEGAL/LEGAL/105477085.v1 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Howard B. Mankoff, Attorney No. 021971981 425 Eagle Rock Avenue, Suite 302 Roseland, NJ 07068 973-618-4100 973-618-0685 [email protected] ATTORNEYS FOR DEFENDANTS - Township Of Bernards, Bernards Township Planning Board, Bernards Township Committee, Barbara Kleinert, Jeffrey Plaza, Jim Baldassare, Jodi Alper, John Malay, Kathleen "Kippy" Piedici, Leon Harris, Paula Axt, Randy Santoro, Rich Moschello, Scott Ross, Carol Bianchi, Carolyn Gaziano, Thomas S. Russo, Jr. and John Carpenter UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY TRENTON ** ELECTRONICALLY FILED ** THE ISLAMIC SOCIETY OF BASKING RIDGE and MOHAMMAD ALI CHAUDRY, Plaintiff s v. TOWNSHIP OF BERNARDS, BERNARDS TOWNSHIP PLANNING BOARD, BERNARDS TOWNSHIP COMMITTEE, BARBARA KLEINERT, in her official capacity, JEFFREY PAZA, in his official capacity, JIM BALDASSARE, in his official capacity, JODI ALPER, in her official capacity, JOHN MALAY, in his official capacity, KATHLEEN CASE NO.: 3:16-CV-01369-MAS-LHG Civil Action

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41034.00103-HBM/LEGAL/LEGAL/105477085.v1MARSHALL DENNEHEY WARNER COLEMAN & GOGGINHoward B. Mankoff, Attorney No. 021971981425 Eagle Rock Avenue, Suite 302Roseland, NJ 07068973-618-4100 973-618-0685 [email protected] FOR DEFENDANTS - Township Of Bernards, Bernards Township Planning Board, Bernards Township Committee, Barbara Kleinert, Jeffrey Plaza, Jim Baldassare, Jodi Alper, John Malay, Kathleen "Kippy" Piedici, Leon Harris, Paula Axt, Randy Santoro, Rich Moschello, Scott Ross, Carol Bianchi, Carolyn Gaziano, Thomas S. Russo, Jr. and John Carpenter

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW JERSEY

TRENTON** ELECTRONICALLY FILED **

THE ISLAMIC SOCIETY OF BASKING RIDGE and MOHAMMAD ALI CHAUDRY,

Plaintiffs

v.

TOWNSHIP OF BERNARDS, BERNARDS TOWNSHIP PLANNING BOARD, BERNARDS TOWNSHIP COMMITTEE, BARBARA KLEINERT, in her official capacity, JEFFREY PAZA, in his official capacity, JIM BALDASSARE, in his official capacity, JODI ALPER, in her official capacity, JOHN MALAY, in his official capacity, KATHLEEN "KIPPY" PIEDICI, in her official capacity, LEON HARRIS, in his official capacity, PAULA AXT, in her official capacity, RANDY SANTORO, in his official capacity, RICH MOSCHELLO, in his official capacity, SCOTT

CASE NO.: 3:16-CV-01369-MAS-LHG

Civil Action

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ROSS, in his official capacity, CAROL BIANCHI, in her official capacity, CAROLYN GAZIANO, in her official capacity, THOMAS S. RUSSO, JR., in his official capacity, and JOHN CARPENTER, in his official capacity ,

Defendants

BRIEF IN OPPOSITION TO MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS

________________________________________________________________

Howard B. Mankoff, Esq.Of Counsel and on the Brief

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ………………………………………………………………………………………………………………………iTABLE OF AUTHORITIES ……………………………………………………………………………………ii, iii, iv

PRELIMINARY STATEMENT………………………………………………………………………………………………………………1

STATEMENT OF FACTS………………………………………………………………………………………………………………………4

LEGAL ARGUMENT………………………………………………………………………………………………………………………………16

POINT IStandard for judgment on the pleadings…………………………………………………16

POINT IIPlaintiffs failed to establish that the board's parking determination violated RLUIPA's non-descrimination provision, 42 U.S.C. § 2000CC(B)(2)………16

POINT IIITownship Ordinance § 21-22.1 is not unconstitutional……………31

CONCLUSION…………………………………………………………………………………………………………………………………………40

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TABLE OF AUTHORITIES

FEDERAL CASES

Adhi Parasakthi Charitable v. Twp. of W. Pikeland, 721 F. Supp. 2d 361 (E.D. Pa. 2010)…………………………………………………30, 32, 35

Al Falah Ctr. v. Twp. of Bridgewater, 2013 U.S. Dist. LEXIS 190076(D. N.J. Sept. 30, 2013)………………………………………19

Albanian Associated Fund v. Twp. of Wayne, 2007 U.S. Dist. LEXIS 73176 (D. N.J. Oct. 1, 2007)……………………………………18, 19, 20

Associated Land & Invest. Corp. v. City of Lyndhurst, 154 N.E. 2d 435 (Ohio 1958)……………………………………………………………………………………………39

Bykofsky v. Middletown, 401 F. Supp. 1242 (M.D. Pa. 1975)……………………………………………………………………………………………………………………………37

Chabad Lubavitch of Litchfield County, Inc. v. Litchfield Historic Dist. Comm'n, 768 F. 3d 183 (2d Cir. 2014)…………………………………………………………………………………………21, 22

Christian Methodist Episcopal Church v. Montgomery, 2007 U.S. Dist. LEXIS 5133, (D.S.C. Jan. 18, 2007)………………………………17

Church of Scientology of Ga., Inc. v. City of Sandy Springs, 843 F. Supp. 2d 1328 (N.D. Ga. 2012)……………………………………………21

Comite Patriotico Cultiral Puertorriqueno, Inc. v. Vas, 2008 U.S. Dist. LEXIS 49090 (D. N.J. June 26, 2008)……………………………36

Contractors Ass'n v. City of Philadelphia, 945 F. 2d 1260 (3d Cir. 1991)…………………………………………………………………………………………………………………32

Cox v. New Hampshire, 312 U.S. 569 (1941)………………………………………………………36

Cunney v. Bd. of Trs. of Grand View, 660 F. 3d 612 (2d Cir. 2011)…………………………………………………………………………………………………………33, 34

Cutter v. Wilkinson, 544 U.S. 709 (2005)…………………………………………………………17

Fowler v. Rhode Island, 345 U.S. 67 (U.S. 1953)………………………………………27

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Grayned v. City of Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972)…………………………………………………31, 33

Habayeb v. Butler, 2016 U.S. Dist. LEXIS 41866(D. N.J. Mar. 29, 2016)………………………………………………………………………………………………………16

Hoffman Estates v. Flipside, 455 U.S. 489 (1982)……………………………………37

Hasan v. City of New York, 804 F. 3d 277 (3d Cir. 2015)………27, 28

Hohe v. Casey, 868 F. 2d 69, 71 n. 2 (3d Cir. 1989(……………………………32

Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F. 3d 253 (3d Cir. 2007)("Lighthouse II")……………………………………………………………………………17, 18, 19, 20, 26

MAG Realty, LLC v. City of Gloucester City, 2010 U.S. Dist. LEXIS 82035 (D. N.J. Aug. 12, 2010)………………………………………………………………………………………………………38

Miles v. Lansdowne Borough, 2012 U.S. Dist. LEXIS 169338(E.D. Pa. Nov. 29, 2012)……………………………………………………………………17

Navigators Specialty Ins. v. PharmaNet Dev. Grp., Inc., 2016 U.S. Dist. LEXIS 40999(D. N.J. Mar. 29, 2016)………………………………………………………………………………………………………16

Sikirica v. Nationwide Ins. Co., 416 F. (3d Cir. 2005)………………………………………………………………………………………………………………………………16

Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (U.S. 1977)……………………………………………………………………21

FEDERAL AUTHORITIES

42 U.S.C. §2000cc(b)(2)………………………………2, 16, 17, 18, 19, 22, 26, 30

Fed R. Civ. Pro. 12(c)…………………………………………………………………………………………………………16

Fed. R. Civ. Pro. 201………………………………………………………………………………………………………………8

OTHER AUTHORITIES

Ordinance § 21-22.1a.1.b…………………………………3, 6, 9, 24, 31, 33, 37, 40

Ordinance § 21-10.4.a.1.(c)………………………………………………………………………………………5, 7

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STATE CASES

Damurjian v. Board of Adjustment of the Twp. of Colts, Neck, 299 N.J. Super 84 (App. Div. 1997)………………………………………………38, 39

DaPurificacao v. Zoning Bd. of Adjustment of Twp. of Union, 377 N.J. Super. 436 (App. Div. 2005)………………………………32, 34

J.D. Constr. Corp. v. Board of Adjustment, 119 N.J. Super 140 (Law. Div. 1972)………………………………………………………………………………………………39

Jacober v. St. Peter's Medical Center, 128 N.J. 475 (1991)……………………………………………………………………………………………………………………9

Kode Harbor Dev. Assoc. v. Atlantic County, 230 N.J. Super. 430 (App. Div. 1989)………………………………………………………………………………………………8

Lionshead Woods Corp. v. Kaplan Bros., 250 N.J. Super 535 (Law. Div. 1991)………………………………………………………………………………………………39

Metuchen v. Piscataway Twp., 252 N.J. Super 525 (Law Div. 1991)……………………………………………………………………………………………………………………………39

Tanis v. Township of Hampton, 306 N.J. Super 588 (App. Div. 1997)…………………………………………………………………………………………………………………………34

Toll Bros. Inc. v. Burlington County Freeholders, 194 N.J. 223 (2008)…………………………………………………………………………………………………………………25

Town of Salem v. Durrett, 125 N.H. 29, 480 A. 2d 9, 10 (1984)…………………………………………………………………………………………………………34

Trade Waste Management Asso. v. Hughey, 780 F. 2d 221 (3d Cir. 1985)………………………………………………………………………………………………32, 33, 36

TSI E. Brunswick v. E. Brunswick Board of Adjustment, 215 N.J. 26 (2014)……………………………………………………………………………………25

Twp. of Pennsauken v. Schad, 160 N.J. 156 (N.J. 1999)………………………39

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Defendants, Township Of Bernards, Bernards Township Planning

Board (“Planning Board”), Bernards Township Committee, Barbara

Kleinert, Jeffrey Plaza, Jim Baldassare, Jodi Alper, John Malay,

Kathleen “Kippy” Piedici, Leon Harris, Paula Axt, Randy Santoro,

Rich Moschello, Scott Ross, Carol Bianchi, Carolyn Gaziano,

Thomas S. Russo, Jr. and John Carpenter respectfully submit this

memorandum in opposition to the motion filed by the Plaintiffs

for partial judgment on the pleadings.

For the reasons that follow, the Plaintiffs’ motion should

be denied.

PRELIMINARY STATEMENT

This suit stems from the Plaintiffs' failure to obtain site-

plan approval for a proposed mosque as a consequence of its

serially deficient site plans. The record is devoid of evidence

of discrimination, discriminatory intent or animus or, violation

of Plaintiffs' constitutional or statutory rights. As explained

in the Planning Board's Resolution denying approval, the property

is simply inadequate to accommodate the proposed use as a mosque

with an occupancy rate of 150 congregants. The Plaintiffs have

declined to reduce the maximum occupancy, which would appreciably

reduce the number of parking spaces required, reduce the

impervious coverage, and help alleviate the site plan

1

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requirements standing in the way of approval. (See ECF No. 15-1,

Exhibit-A ("Resolution"), p. 19).

Plaintiffs filed the instant Motion seeking partial judgment

on the pleading on two grounds, both of which are premature and

based upon a gross mischaracterization of the pleadings, evidence

and law. Plaintiffs seek judgment as to the third, eighth and

tenth causes of action in the Complaint, and a holding that

Defendants are liable under the Religious Land Use and

Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C.

§2000cc(b)(2)(nondiscrimination)for all appropriate relief

including damages and equitable remedies.

First, Plaintiffs inaccurately contend that the Defendants

admit facts in their Answer that constitute a violation of §

2000cc(b)(2). The linchpin of Plaintiffs' Motion is its

mischaracterization of Defendants' Answer as an admission that

the Board's parking determination was based upon Plaintiffs'

religious faith and that a different individualized standard was

applied to the mosque. Defendants' Answer actually provides: "It

is admitted that the 3:1 parking ratio was applied to houses of

worship which applied for site plan approval before the Islamic

Center of Basking Ridge. This is because the revised ITE

[Institute of Traffic Engineers] standard did not exist at the

time." (ECF No. 15 ("Answer"), ¶ 127)(emphasis added). The Board

appropriately accepted the current ITE Parking Generation Manual,

2

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4th edition, 2010, which even Plaintiffs' engineering expert

recognized as authoritative, and the other houses of worship

referenced by Plaintiffs are not similarly situated comparators.

(Id., ¶¶ 127, 139). The 3:1 parking ratio set forth in Ordinance

§ 21-22.1.a.1.b refers to "churches" and is not applicable to

"mosques." Even Plaintiffs' own testimony, and other evidence

submitted to the Board demonstrated that the two institutions

generate different traffic patterns and numbers of cars. The

standard applied under the Ordinance to all applications, is

submission of documentation and testimony by applicants as to the

anticipated parking demand. (See ECF No. 31-2 ("Ordinance")).

Defendants have not admitted discriminatory intent or

individualized treatment of the ISBR, there is no evidence

supporting such an allegation, nor is consideration of the 2010

ITE traffic engineering standards in calculating parking demand

for a mosque a violation of RLUIPA's non-discrimination clause.

Second, Plaintiffs erroneously argue that the parking

determination was based upon certain clauses of Township

Ordinance § 21-22.1 which are allegedly unconstitutional under

the U.S. and New Jersey Constitutions. The language in the

Ordinance, including that the Board "may...require that provision

be made for the construction of spaces in excess of those

required" by the 3:1 ratio, is not unconstitutionally vague and

does not grant unbridled discretion to the Board. Plaintiffs

3

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also rely upon a narrow and erroneous interpretation of the case

law in claiming that the Ordinance is unconstitutional.

There is no evidence or "admission" that the Board acted

with any discriminatory intent or animus regarding the parking

requirement and Plaintiffs are unable to even raise a genuine

issue of material fact that the non-discrimination clause was

violated. The Board properly and evenhandedly applied the

Ordinance and its decision was appropriately based upon the

occupancy, the ITE's current, authoritative engineering traffic

standards, and the documentation, testimony and evidence

regarding the anticipated parking demand for the use - not the

ISBR's religious faith. The Ordinance is not unconstitutionally

vague and provides sufficiently clear objective standards to

prevent subjective and arbitrary determinations. At a minimum,

however, genuine issues of material fact prevent partial judgment

for Plaintiff.

STATEMENT OF FACTS

I. ISBR'S APPLICATION TO THE PLANNING BOARD AND FOR APPROVAL

This case stems from the ISBR's application to the Planning

Board for preliminary and final site plan approval for proposed

construction of a 4,252 square foot mosque and associated site

improvements. (See ECF No. 1 (“Compl.”). At the time of the

initial application, "houses of worship" were considered a

4

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permitted use under the Bernards Township zoning ordinance 21-

10.4.a.1.(c) in the R-2 zone, which is the zone in which the

subject property is situated. (See ECF No. 15-1, p. 2). The

property did not meet all of the requirements of the Township's

zoning ordinance or chapter 21, Article V, Development

Regulations for a house of worship to be permitted in a

residential zone as of right.

A public hearing before the Board commenced on August 21,

2012. (Id., p. 3).1 While Defendants' Answer essentially agreed

that more hearing sessions were held on this application than

others, Defendants "den[ied]that the Planning Board regularly

approves major site plan applications or major subdivisions in

one or just a few meetings." (ECF. No. 15, ¶ 65). Notably, upon

submission of a complete application for a site plan, the Board

must grant or deny preliminary approval within forty-five days,

except that the applicant may consent to extensions, and the

Plaintiffs consented to all of the extensions to allow all of the

hearing sessions to take place here. (Id., ¶ 37). The

transcripts, which Plaintiffs refuse to provide, will show that

Plaintiffs' stonewalling and failure to provide credible answers

to various questions, including the number of congregants, was a 1 Even at the very first hearing, Plaintiffs' counsel raised RLUIPA and the unwarranted threat of a discrimination claim when the Planning Board asked legitimate questions about parking and the number of congregants anticipated. (See August 2012 transcript attached as Exhibit "A," p. 41-45; September 2012 transcript attached as Exhibit "B," p. 61)

5

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significant factor in the number of hearings. Unfortunately, the

Plaintiffs never satisfied the required site plan standards

during the subsequent and extended hearing sessions, stemming

from the failure of the Plaintiffs' professionals to adequately

address the issues raised by the Board.

II. ISBR'S FAILURE TO SATISFY THE OFF STREET PARKING STANDARD

A. Township Ordinance § 21-22.1

The Board appropriately inquired into the expected occupancy

of the mosque and there is no evidence that it was improperly

influenced by the objectors. The ISBR's proposal was for an

occupancy of 150 and one parking space for every three prayer

mats, based upon the "1 space for every 3 seats" ratio for

"churches" under Ordinance § 21-22.1.a. (ECF No. 15, ¶ 128; 31-2,

p. 2). The Ordinance provides that "the development plan shall

show the total number of off-street parking spaces required for

the use or combination of uses indicated in the application."

(ECF No. 31-2, p. 1 ("Ordinance"). The Ordinance further states:

Since a specific use may generate a parking demand different from those enumerated [in the schedule], documentation and testimony shall be presented to the Board as to the anticipated parking demand. Based upon such documentation and testimony, the Board may:

(a) Allow construction of a lesser number of spaces, provided that adequate provision is made for construction of the required spaces in the future.

6

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(b) In the case of nonresidential uses, require that provision be made for the construction of spaces in excess of those required herein below, to ensure that the parking demand will be accommodated by off-street spaces.

(ECF No. 31-2, p. 1)(emphasis added). The Ordinance

establishes a standard to be considered, not a requirement. (ECF

No. 31-3 (Drill/Banisch Memo), p. 2). The Ordinance did not

establish 3:1 as the parking standard for all houses of worship,

but rather expressly refers to "churches, auditoriums and

theaters" and provides for "1 space for every 3 seats or 1 space

for every 24 linear inches of pew space." (ECF No. 31-2, p. 2).

Plaintiffs' convoluted argument that a "mosque" is a "church" is

contradicted by the plain language of the Ordinance, reference to

seating or pew space (which mosques do not have), and would

conflict with zoning ordinances such as 21-10.4.a.1.(c) which

specifically refer to "houses of worship."

B. The January 3, 2013 Drill/Banisch Memo and parking determination

The Plaintiffs and objectors relied upon various traffic

engineering standards, including the ITE parking standards which

Plaintiffs' engineering expert Henry Ney identified as an

authoritative source. (See ECF No. 31-3, p. 5-6,p. 7 n.7).2

2 Plaintiffs acknowledge that Mr. Ney's sources included the ITE's Parking Generations, 4th edition, which resulted in an estimate of 110 spaces. (ECF No. 30, p. 7).

7

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In December of 2012, ISBR and the BTCRD objectors submitted

letter briefs to Board Attorney Jonathan Drill concerning the

applicable parking standard. ISBR's expert Mr. Ney testified

that the ITE standards were authoritative, but ISBR took the

position that the 3:1 parking ratio for churches applied to

ISBR's plans. (ECF No. 15,¶ 140).3 On January 3, 2013, Mr. Drill

and Mr. Banisch issued a joint parking memo based upon the

submissions of the ISBR and Objector BTCRD. (Id., ¶ 142; No. 31-

3). 4 The Drill/Banisch memo notes that one of the "substantial

changes" in the 4th edition of ITE's Parking Generation, is the

addition of 16 new land use classifications, two of which are

"Synagogue" and "Mosque." (ECF No. 31-3, p. 5; Exhibit C, p. 15). 3 This Court can take judicial notice of the ITE 2010 revised parking standards, Parking Generation, 4th edition which are facts "not subject to reasonable dispute," because they "(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." See Fed.R.C.P. 201. Mr. Ney, plaintiff’s own expert, and other experts acknowledged that the ITE standards are authoritative, they are cited in the Drill/Banisch memo [ECF. No. 31-3], the Board utilized these standards in analyzing the parking requirements, and ITE standards have been accepted in the New Jersey courts as a recognized and reliable and authoritative source of data regarding traffic generation. (See portions of Parking Generation, 4th edition attached as Exhibit "C"); see also Kode Harbor Dev. Assoc. v. Atlantic County, 230 N.J. Super. 430, 436 (App. Div. 1989). The ITE provides under "Land Use: 562 Mosque" that average peak parking demand is on Friday, which at the 85th

percentile is 25.79 vehicles per 1,000 sq. ft gross floor area. (Exhibit A, p. 165). "Land Use: 560 Church" describes average peak parking demand on a Sunday, at the 85% percentile at 14.38 vehicles per 1,000 sq. ft. and .25 vehicles per seat, which is similar to the 3:1 ratio in the Ordinance regarding "churches." (Id., p. 159-161.) 4 An authoritative text is admissible in its own right. Jacober v. St. Peter’s Medical Center, 128 N.J. 475, 496 (1991).

8

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These changes "reflect the ITE's recognition that parking

requirements for churches...should no longer apply to synagogues

and mosques, each of which generates its own distinctive traffic

patterns and numbers so each of which should not have (sic) its

own distinctive parking requirements." (ECF No. 31-3, p. 6.)

(emphasis added). The memo concluded that the Board should use

the "85th percentile" date (25.79 spaces for every 1,000 sq. ft.

of the gross floor area of the mosque, multiplied by 4.25

(representing the 4,252 square feet of proposed floor space),

which yields a parking requirement of 110 spaces, unless the ISBR

"presents cogent reasons to the contrary and/or a more detailed

study related to the proposed mosque leading to another

conclusion." (Id., p. 8).

As the Drill/Banisch memo states, "all houses of worship are

treated the same under ordinance section 21-22.a.1 in that the

same requirement is applied to all house of worship applicants,

indeed for all uses in the Township. Specifically, the ordinance

requirement is submission of documentation and testimony by all

applicants for any and all uses proposed in the Township as to

the anticipated parking demand." (Id., p. 6 n. 6). Therefore,

the only thing shown by the evidence, is that the Board treated

ISBR the same as it would any house of worship under the

Ordinance, by appropriately considering the documentation and

testimony, including the current 2010 ITE standards specific to

9

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traffic patterns relating to churches, mosques and synagogues.5

The 3:1 standard for “churches” is based on the average number of

people per car travelling to Sunday mass. By Plaintiffs' own

testimony, congregants attending the Friday afternoon service

would be coming from work, including Verizon, Verizon Wireless,

U.S. Healthcare, and “other companies that are here” (August

2012 Transcript, p. l44). Therefore, the underlying assumption

of three congregants per car would not apply per Plaintiffs' own

admission.

ISBR Traffic Engineer Ney collected additional parking data

and from January 2013 to June 2013, ISBR presented supplemental

parking studies and testimony that applying the ITE methodology

resulted in 70 parking spaces for ISBR. (ECF No. 15, ¶ 146). The

Board conducted a legitimate inquiry into the anticipated parking

demand as required by the Ordinance and nothing suggests that its

questioning was "designed to elicit higher numbers" as Plaintiffs

claim, rather than accurate parking numbers. (See ECF No 30, p.

9). The Board was free to question Mr. Ney about all relevant

issues, including the 100th percentile data in examining the

parking issue, and in any event, applied an analysis using less

than 100%. On June 4, 2013, the Board voted on ISBR's parking

5 The Board was aware that ISBR argued that certain parts of the Ordinance might be unconstitutional, not that it was (allegedly) unconstitutional, and the Drill/Banisch memo noted this was not the correct forum to argue its legality and the Board could not simply ignore the Ordinance. (ECF No. 31-3, p. 4).

10

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requirement and its decision to require 107 parking spaces was

not an act of discrimination based upon religious faith, but one

of proper planning based upon the evidence and authoritative

traffic engineering standards.6

III. THE ISBR'S FAILURE TO PRESENT A DETAILED, CONFORMING SITE PLAN

The Board's decision requiring 107 spaces did not lay

"ground work" for the Board to deny ISBR preliminary and final

site plan approval. (ECF No. 15, ¶ 152). The 107 spaces required

meant an increase in pavement / impervious coverage and other

considerations, and ISBR worked to resolve the Board's drainage

concerns. (Id., ¶ 155). While ISBR submitted a revised plan with

107 parking spaces, a fully coordinated plan containing the

details required of a final site plan was never submitted, and

the plans that were submitted lacked the detail required. (Id., ¶

169).

Ultimately, the Board denied final approval because the plan

did not have sufficient details and for the specific issues

described in the Resolution. (Id., ¶ 171). Plaintiffs never

satisfied the required site plan standards during the subsequent

and extended hearings, stemming from the failure of the

6 The objectors' expert Mr. Litwornia presented a recommendation based upon a different metric of 107 parking spaces. (ECF No. 15, ¶ 149). The Board adopted a recommendation of 107 parking spaces, but not Mr. Litwornia's position in full. (Id., ¶ 150).

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Plaintiffs' professionals to adequately address the issues that

the Board identified.

IV. THE BOARD'S RESOLUTION DENYING ISBR'S APPLICATION

On December 8, 2015 the Board voted to deny Plaintiffs'

application and the Resolution was adopted on January 19, 2016.

(See ECF No. 15-1). The reasons for the denial of both

preliminary approval and final approval are stated in the

Resolution. (Id.) Contrary to Plaintiffs’ false allegations of

discriminatory animus and intent, the Board's rationale was based

on the merits and as summarized in the April Resolution (but

detailed in the Resolution) those reasons were:

(1) the Board could not “specifically approve” as required by the site plan ordinance the proposed 7,500 square foot detention basin wholly within the 50-foot wide buffer because allowing such a large drainage improvement wholly within the buffer represents the exception swallowing the rule and defeats the very purpose of the buffer;

(2) the applicant failed to prove compliance with all of the landscaping requirements and fencing regulations established in the ordinance;

(3) contrary to ordinance requirements, the applicant failed to design internal traffic circulation to minimize the use of aisles serving parking area and the internal circulation system will not be able to handle access and circulation of fire trucks due to the parking lot aisle widths adjacent to the 90 degree parking stalls on the easterly side and westerly side of the site as well as to the rear

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of the building being 24 feet wide, where the ordinance required them to be 26 feet wide, and the parking lot aisle adjacent to the westerly side of the building leading to the parking lot to the rear of the building being as narrow as 20 feet, where the ordinance requires parking lot aisles adjacent to any building to provide a travel lane with a minimum 24 feet clear width; and,

(4) ordinance compliant Stormwater drainage plans were not submitted to the Board for approval.

(ECF No. 26-1 ("April Resolution"), p. 2).

Critically, the Board recognized that while Plaintiffs

failed to provide a viable site plan compliant with the Township

site plan ordinance standards to date, there was nothing about

the property which would make it impossible for Plaintiffs to do

so. (Id., p. 1-2). However, Plaintiffs are determined to

litigate their false accusations of discriminatory treatment

rather than follow the process to obtain site plan approval.

V. APPLICATIONS BY PRIOR HOUSES OF WORSHIP PRE-DATED THE ISBR'S APPLICATION AND ITE'S 2010 REVISED PARKING GENERATION MANUAL, 4TH EDITION

Plaintiffs argue that the Board never applied the parking

standards utilized for ISBR's application to any other houses of

worship, which were instead subject to the 3:1 ratio. However, as

Defendants' Answer specifies, all of the applications that

Plaintiffs cite, pre-date the ISBR's 2012 application and 2010

ITE revised parking standards; the Millington Baptist Church

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applied in 1999, the Chabad Jewish Center in 1995 and the

Congregation B'nai Israel in 1993. (ECF. No. 15, Id., ¶¶ 127,

139).7 Plaintiffs argue without citing any evidence, that no

"individualized analysis" was performed as to these other houses

of worship, and then contradict themselves by conceding that

Congregation B'nai Israel was given "downward relief" from the

3:1 ratio. The record shows that the Ordinance was applied

uniformly to all houses of worship including the ISBR, based upon

the traffic engineering standards at the time and evidence

presented to the Board.

VI. AMENDMENT OF THE ORDINANCE AND "APRIL RESOLUTION"

At the time of Plaintiffs’ initial application, houses of

worship were a permitted use in the R-2 zone. Subsequently, the

Bernards Township Committee, consistent with modern zoning norms,

amended the zoning ordinances to make houses of worship a

conditionally permitted use, knowing that the amended ordinance

7 Contrary to Plaintiff's Motion, Defendants denied that Board Planner David Banisch agreed that the proposal satisfied the Ordinance and noted that Banisch recommended an increase in the number of parking spaces at a later date. (ECF. No. 15, ¶ 129). While Defendants agreed that "Mr. Banisch issued a new parking memo on October 25, 2012," they deny, contrary to Plaintiffs' assertion, that Mr. Banisch ever conceded that 50 or 56 parking spaces were sufficient. (Id., ¶ 136). Defendants also did not "admit" that Township Planner David Schley did not advise of Township of the need for relief from the Ordinance; Defendants' Answer only admits "that in a letter dated August 3, 2012, David Schley noted the ISBR proposal included 50 parking spaces." (Id., ¶ 130).

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would not apply to the application at issue. In a good-faith

effort to give the Plaintiffs every opportunity to resolve the

dispute by way of settlement, the Board passed the April

Resolution to extend the time to seek “rehearing.” (See ECF No.

26-1).

The April Resolution also detailed the history of the

application and its denial, and noted that a majority of the

Board members who voted on the application were on record as

either (1) favoring the application subject to the imposition of

conditions which would address the reasons for the denial or (2)

against the application but willing to vote for site plan

approval if changes addressing the reasons for denial were

implemented and a resubmission of site plans were made. (Id., at

p. 2). At the time of this writing, the Plaintiffs have chosen

not to resolve the dispute and to obtain the approval they

allegedly desire, but rather seek to quash the Resolution. (ECF

No. 26 ("Mot. to Quash").

LEGAL ARGUMENT

I. STANDARD FOR JUDGMENT ON THE PLEADINGS

A motion may be made for judgment on the pleadings in

accordance with Fed. R. Civ. P. 12(c) "[a]fter the pleadings are

closed—but early enough not to delay trial." Navigators

Specialty Ins. v. PharmaNet Dev. Grp., Inc., 2016 U.S. Dist.

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LEXIS 40999, 4-5 (D.N.J. Mar. 29, 2016)(quoting Fed. R. Civ. P.

12(c)). The movant under Rule 12(c) "must show clearly that no

material issue of fact exists and that it is entitled to judgment

as a matter of law." Habayeb v. Butler, 2016 U.S. Dist. LEXIS

41866 (D.N.J. Mar. 29, 2016). In considering such a motion, the

court must view the facts alleged in the pleadings as true and

draw any inferences therefrom in the light most favorable to the

non-movant. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220

(3d Cir. 2005).

II. PLAINTIFFS FAILED TO ESTABLISH THAT THE BOARD'S PARKING DETERMINATION VIOLATED RLUIPA'S NON-DISCRIMINATION PROVISION, 42 U.S.C. § 2000CC(B)(2)

Plaintiffs are unable to establish that the Board's parking

determination as to the proposed mosque's parking requirement,

violated RLUIPA's non-discrimination provision. Plaintiffs'

Motion is based upon abject mischaracterization of Defendants'

Answer and as nonmovants, Defendants' Answer must be read in the

light most favorable to Defendants. Plaintiffs Motion is not

supported by the law, and fails to raise any genuine issue of

material fact as to their claims, much less show that "no

material issue of fact remains" such that they are entitled to

partial judgment on the pleadings. See Miles v. Lansdowne

Borough, 2012 U.S. Dist. LEXIS 169338, *24-25 (E.D. Pa. Nov. 29,

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2012)( failure to raise genuine factual issue that non-

discrimination clause was violated).

A. RLUIPA's non-discrimination provision, 42 U.S.C. § 2000cc(b)(2)

The Religious Land Use and Institutionalized Persons Act of

2000 ("RLUIPA"), 42 U.S.C. § 2000cc et seq., was enacted to

protect religious institutions and the religious rights of

institutionalized persons from "government imposed burden." See

Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510

F.3d 253, 261 (3d Cir. 2007)("Lighthouse II")(quoting Cutter v.

Wilkinson, 544 U.S. 709, 714 (2005)). 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." See Christian Methodist Episcopal Church v.

Montgomery, 2007 U.S. Dist. LEXIS 5133, 30-31 (D.S.C. Jan. 18,

2007). Indeed, "[s]o long as a municipality applies its codes

uniformly and does not impose an unjustified substantial burden

on religious exercise, it may apply traditional zoning concerns –

such as regulations addressing traffic, hours of use, parking,

maximum capacity, intensity of use, setbacks, frontage – to

religious uses just as they are applied to any other land uses.”

Statement of the Department of Justice on the Land-Use Provisions

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of the Religious Land Use and Institutionalized Persons Act

(RLUIPA, (December 2010), p. 3-4.

RLUIPA's non-discrimination provision at section 2000cc(b)

(2),"prohibits land-use regulations that disfavor religious uses

relative to nonreligious uses." Albanian Associated Fund v. Twp.

of Wayne, 2007 U.S. Dist. LEXIS 73176, 18-19 (D.N.J. Oct. 1,

2007)(quoting Lighthouse, 406 F. Supp. 2d 507, 514 (D.N.J.

2005)). Section 2000cc(b)provides in relevant part:

§ 2000cc.  Protection of land use as religious exercise * * *(b) Discrimination and exclusion.   (1) Equal terms. No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.   (2) Nondiscrimination. No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.   (3) Exclusions and limits. No government shall impose or implement a land use regulation that--      (A) totally excludes religious assemblies from a jurisdiction; or      (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

42 U.S.C. § 2000cc(b)(2)(emphasis added). A plaintiff must

show that: (1) it is an assembly or institution, (2) it is

subject to a land use regulation, (3) which has been imposed or

implemented in a manner that discriminates on the basis of

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religion. See 42 U.S.C. § 2000cc(b)(2); Al Falah Ctr. v. Twp. of

Bridgewater, 2013 U.S. Dist. LEXIS 190076, *41 (D.N.J. Sept. 30,

2013). Plaintiffs have plainly failed to show that that they were

discriminated against by the imposition or implementation of a

land use regulation on the basis of religion or to otherwise

state a viable RLUIPA claim.

Case law on the non-discrimination provision is sparse in

the Third Circuit and other circuits and no standard has been

universally adopted in considering a nondiscrimination claim. The

Third Circuit "appears to treat" the equal terms and non-

discrimination subsections "as both incorporating the "similarly

situated" analysis." Albanian Associated, at *31-32 (emphasis

added), citing Lighthouse II, supra and Lighthouse Institute for

Evangelism v. City of Long Branch, 100 Fed. Appx. 70, 77 (3d Cir.

2004)("Lighthouse I"). In Lighthouse I, the Third Circuit held

that the religious entity "did not show a likelihood of success

on its non-discrimination because there was no indication on the

face of the statute that any distinction is drawn between

religious and secular assembly halls (or in any other category)"

and the plaintiff did not produce any other evidence to suggest

that the City had interpreted the ordinance as such. Lighthouse

I, at 77. Lighthouse II construed the "Equal Terms" provision to

"include neither a substantial burden nor a strict scrutiny

requirement," but to require "that the plaintiff show that it was

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treated less well than a nonreligious comparator that had an

equivalent negative impact on the aims of the land-use

regulation," i.e., identification of a better-treated secular

comparator that is similarly situated in regard to the objectives

of the challenged regulation. Lighthouse II, 510 F.3d at 268,

270. The "Equal Terms" provision was construed to include

neither a substantial burden nor a strict scrutiny requirement,

but rather for the plaintiff to show "that it was treated less

well than a nonreligious comparator that had an equivalent

negative impact on the aims of the land-use regulation."

Lighthouse II, 510 F.3d at 264, 270.

Therefore, based upon Lighthouse I and II and district court

decisions like Albanian, the courts in the Third Circuit require

plaintiffs to provide evidence of a sufficient comparator

"similarly situated in regard to the objectives of the challenged

regulation" in order to prove discriminatory treatment. Id.; see

Albanian, at *33-34(where plaintiff identified similarly situated

applicant treated differently, a catholic hospital permitted to

develop land deemed environmentally sensitive, summary judgment

for defendant on the nondiscrimination claim was denied, and it

was for the fact- finder to analyze the township's intent to

determine if their actions were discriminatory.).

The Second Circuit, one of the few courts examining the

nondiscrimination provision, held that establishing a claim under

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this clause requires evidence of a discriminatory intent. Chabad

Lubavitch of Litchfield County, Inc. v. Litchfield Historic Dist.

Comm'n, 768 F.3d 183, 198 (2d Cir. 2014)(stating that "the plain

text of the provision makes clear that, unlike the substantial

burden and equal terms provisions, evidence of discriminatory

intent is required to establish a claim."). The Court opined

that analysis of a nondiscrimination claim requires a "sensitive

inquiry into such circumstantial and direct evidence of intent as

may be available." 768 F.3d at 199 (quoting Village of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (U.S.

1977)). The Eleventh Circuit has identified three kinds of

statutory equal protection/nondiscrimination violations including

"a truly neutral statute that is selectively enforced against one

religious denomination as opposed to another." Church of

Scientology of Ga., Inc. v. City of Sandy Springs, 843 F. Supp.

2d 1328, 1360-1361 (N.D. Ga. 2012)(denying summary judgment on

non-discrimination claim based upon factual issues).

Finally, contrary to Plaintiffs' Motion, there is no

provision in 42 U.S.C. § 2000cc(b)(2)itself switching the burden

of proof to the government after the plaintiff makes out a prima

facie case under RLUIPA. (See ECF No. 30, p. 14).8 Nor does

Plaintiff cite any cases to show that the Third Circuit has 8 The Second Circuit has opined that "the plaintiff bears the initial burden of establishing a prima facie claim, after which the government bears the burden of persuasion on the elements of the nondiscrimination claim." Chabad Lubavitch, 768 F.3d at 198.

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adopted a burden-shifting framework for RLUIPA nondiscrimination

claims.

B. Plaintiffs are unable to demonstrate any religious discrimination or discriminatory intent by the Board

Plaintiffs claim that the parking Ordinance was selectively

enforced and that Defendants' Answer admitted that the ISBR was

treated differently from other houses of worship.

First, Defendants did not make any such "admission," having

actually responded: "It is admitted that the 3:1 parking ratio

was applied to houses of worship which applied for site plan

approval before the Islamic Center of Basking Ridge. This is

because the revised ITE standard did not exist at the time." (ECF

No. 15 ("Answer"), ¶ 127)(emphasis added). Defendants' statement

was therefore qualified by the explanation that the current 2010

ITE parking standards were not in existence - thus could not be

applied - at the time that the other houses of worship cited by

Plaintiffs applied to the Board. Defendants' Answer also in no

way "admitted" that the ISBR was subjected to a "novel,

individualized parking requirement" because it was an Islamic

congregation, nor is there any evidence that the 3:1 ratio was

applied to the churches and synagogue without the Board also

considering the applicants' evidence and documentation regarding

parking demand.

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Second, Plaintiffs provide no direct or circumstantial

evidence of discrimination or intent to treat the mosque

differently from the other houses of worship. Defendants did not

discriminate against the ISBR on the basis that it is an Islamic

congregation. The evidence shows that the Board treated all of

the houses of worship the same in accordance with the standards

in effect at the time. The ITE standards were not plucked from

some obscure source - they are objective, established traffic

engineering standards considered to be a reliable and

authoritative source by traffic engineers, including Plaintiff's

expert Mr. Ney, and by the New Jersey courts. Plaintiffs argue

disparate treatment because of their religion, but the ITE

standards are based upon the traffic patterns associated with the

specific use - not the religious faith. The ITE standards were

updated in 2010 in order to allow greater accuracy in determining

parking requirements, and would be applied to any mosque, church

or synagogue after that date. The mere fact that the ITE

standards resulted in Plaintiffs having to provide more parking

than if a 3:1 ratio was applied, does not establish that the

Board treated their religious activity any differently from that

of the earlier applicant houses of worship.

Third, the record shows that Defendants treated all houses

of worship alike in applying the Ordinance and determining the

parking requirements for each use. The Board's process in

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applying Ordinance 21-22.1 is succinctly explained in the

Resolution as follows:

The Board notes that it formally voted during the June 4, 2013 hearing session on a motion to establish the number of parking spaces in accordance with ordinance section 21-22.1 which provides that, "since a specific use may generate a parking demand different from those enumerated below, documentation and testimony shall be presented to the Board as to the anticipated parking demand." The ordinance continues: "Based upon such documentation and testimony, the Board may: (a) allow construction of a lesser number of spaces, provided that adequate provision is made for construction of the required number of spaces in the future, or (b) in the case of nonresidential uses, require that provision be made for the construction of spaces in excess of those required herein below, to ensure that the parking demand will be accommodated by off-street spaces."

(ECF No. 15, Resolution, p. 14 n. 4). Under the Ordinance,

mosques, churches and synagogues, and indeed applicants for any

use, are all required to present evidence of anticipated parking

demand. As to the ISBR's application and specific use, the Board

specified that it heard testimony from the ISBR's traffic

engineering expert Mr. Ney that the number of occupants should be

divided by a factor of l.35 to establish the number of spaces,

and objector BTCRD's expert traffic engineer Alexander Litwornia,

PE that the number of occupants should be divided by a factor of

1.4 to establish the number of spaces. (Id.). Ultimately, the

Board gave more weight to Mr. Litwomia's opinion due to "the

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strengths and weaknesses of their analyses" and decided that the

required number of parking spaces was 107. (Id.).9 It is the

Board's prerogative to credit or discredit the expert opinions.

TSI E. Brunswick v. E. Brunswick Board of Adjustment, 215 N.J.

26, 46 (2013). At all times the applicant bears the burden of

proof on its application, and if the burden is not sustained the

board has no choice but to deny the application. Toll Bros, Inc.

v. Burlington County Freeholders, 194 N.J. 223, 255 (2008)

(quoting Cox and Koenig, New Jersey Zoning and Land Use

Administration (Gann 2015), section 18-4.1, p. 365).

Finally, in this circuit, Plaintiffs' nondiscrimination

claim based upon selective application of the Ordinance requires

proof that Plaintiffs were treated less well than religious

comparators similarly situated in regard to the objectives of the

Ordinance. Lighthouse II, supra. The objectives of Ordinance 21-

22.1 are to "provide for parking demand by requiring off-street

parking," the development plan must show the total number of off-

street parking spaces required for the use/combined use in the

application, and the Ordinance recognizes that a specific use may

generate a parking demand different from the schedule thus

requires testimony and documentation as to the anticipated

parking demand. (ECF No. 31-2, p. 1). Plaintiffs did not show

sufficiently similarly situated comparators with regard to the 9 These figures reflect a maximum occupancy of 150, as determined by the applicant's architectural expert Daniel Lincoln. (Id.).

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objectives of the Ordinance to ascertain parking requirement

based upon parking demand. The three religious entitys'

applications all pre-date the ISBR's 2012 application and 2010

revised ITE parking standards, therefore cannot be similarly

situated in regard to the objectives of the Ordinance. In

addition, the two churches are not similarly situated because the

3:1 ratio was applicable to the two churches at the time because

it was specified in the Ordinance schedule for "churches," and

the churches would also have different traffic patterns, amounts

of vehicles and peak demand times. The synagogue is not similarly

situated because it would also have different traffic patterns

and parking demands than the proposed mosque, and the parking

requirements under a 3:1 ratio were adjusted downwards for the

synagogue.

There is also no evidence that the Board performed a

discriminatory individualized assessment as to the proposed

mosque. The purpose of the Ordinance is to accurately assess the

parking demand as to each specific use - religious or non-

religious - so that an adequate number of off-street parking

spaces can be determined. Applying the Ordinance to all houses

of worship evenhandedly does not mean that the same ratio of

parking spaces to worshippers will result, when the actual

parking demand for each use is shown to be different. The Board's

application of the Ordinance was evenhanded and Plaintiffs are

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unable to establish a claim under RLUIPA's nondiscrimination

provision.

Plaintiffs cite to Hassan v. City of New York, 804 F.3d 277,

297 (3d Cir. 2015) which is inapposite as it does not involve the

application of zoning ordinances. Plaintiffs also rely upon

Fowler v. Rhode Island, 345 U.S. 67, 69 (U.S. 1953) in which the

government conceded that a religious service of Jehovah's

Witnesses was treated differently than other sects. Here there is

no such "concession" and no evidence of disparate treatment by

Defendants of one religion over another. The Board simply

considered objective engineering standards recognizing that a

specific use of the property - regardless of how that use is

labeled - generates additional vehicles. This is not

discrimination. There is also no evidence that the ISBR would

have been subject to a different or more favorable parking space

requirement had it been a different type of religious entity;

both the schedule in the Ordinance and the ITE standards are

guidelines, and the Board's decision was based upon the evidence

of the anticipated parking demand and considerations explained in

the Resolution.

Plaintiffs argue that proof of an invidious motive is not

necessary, citing Hassan, supra, 804 F.3d 277, 297-298 (3d Cir.

2015). However, even if, arguendo, the "motive" equation is

removed from the analysis, Plaintiffs have not shown an intent to

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discriminate, or that the Board desired a result whereby a mosque

would be treated unequally because it is a mosque. The record

shows that Defendants did not single out the ISBR because of its

religious affiliation, but rather applied objective principles of

traffic engineering from an authoritative source which considered

the difference between use of property as churches, mosques and

synagogues and their associated traffic patterns. The standard

was not applied strictly or arbitrarily, and ISBR was also

invited to present additional evidence and studies as to their

parking requirements. The Board treated ISBR as it would any

house of worship or "use" under the Ordinance, by considering the

documentation, testimony and evidence, which included the

current, authoritative and use- specific ITE standards. The

Board’s decision to require 107 parking spaces was not an act of

discrimination, but one of proper planning. Allowing 107 spaces

even at the cost of more impervious cover and detriment to the

environment actually permitted a dramatic increase in the

intensity and ability of the applicant to worship as its

congregation grew or expanded. Had the Board accepted the initial

calculation of 50 or 56 parking spaces as proposed by plaintiff,

worship would have been inherently limited in perpetuity by the

50 or 56 spaces because of the unavailability of parking on the

County Road and in the surrounding neighborhood. Once the lot was

full, other congregants would have to turn away or,

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alternatively, arrange for a cumbersome shuttle service.

Plaintiffs presented conflicting and inadequate testimony which

made it difficult to ascertain the size of the congregation. They

initially testified that parking and the fire code would limit

the size of the congregation and they would turn congregants away

if the parking lot was full. (September 4, 2012, p. 85-87).

Plaintiffs subsequently testified that congregants could park

offsite, but could not identify where. (Id., p. 60-63, 65, 72).

Plaintiffs also testified that they could hold additional

services or would use other rooms in the house of worship. (Id.,

p. 46, 86).10

In addition, impervious cover and intensity of worship would

have decreased - with 50 less parking spaces - to the benefit of

the neighbors. The Board did not do this and plaintiffs provide

no direct or circumstantial evidence of discrimination or intent

to treat the mosque differently from the other houses of worship.

Plaintiffs are also unable to establish that they were treated

less favorably than any similarly situated comparators, and they 10 Members of the Board were familiar with problems associated with inadequate onsite parking and the difficulties in enforcement post facto. At the time of the application, there was a well known problem with inadequate parking at a baseball complex which resulted in numerous complaints and a safety issue. Rather than respond piecemeal by ordinances restricting parking on streets, the Board attempted to ensure adequate parking on this and other applications. Testimony also revealed that movement of fire trucks might be impaired when traffic is queued at the 4 way intersection doors down from the site. (September 4, 2012, p. 87)

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have not shown any discrimination or intent to discriminate and

cannot prove a nondiscrimination claim under section 2000cc(b)

(2).

Also, even if, arguendo, burden shifting provisions apply,

the Defendants have shown that the reasons for the allegedly

disparate treatment of ISBR were not pre-textual. At a minimum,

and construing the pleadings is the light most favorable to the

non-moving parties, the Defendants, the Defendants have raised

issues of genuine material fact such that this court cannot grant

judgment on the pleadings as to the nondiscrimination clause

claim. See Adhi Parasakthi Charitable v. Twp. of W. Pikeland, 721

F. Supp. 2d 361, 386 (E.D. Pa. 2010).

For the above reasons, Plaintiffs were unable to show a

violation of RLUIPA's nondiscrimination provision.

III. TOWNSHIP ORDINANCE § 21-22.1 IS NOT UNCONSTITUTIONAL

Plaintiffs further contend that the Board wielded Ordinance

21-22.1 as a "weapon" to discriminate against the ISBR, and that

the Ordinance is vague and bestows unlawful and unlimited

discretion upon the Planning Board. To the contrary, the

Ordinance serves the purpose of protecting applicants from

discriminatory or arbitrary decisions and clearly specifies the

standards and process used by the Board to evaluate the off-

street parking requirements of all applicants. The Board applied

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these precise considerations and procedures in evaluating the

ISBR's parking requirement, as explained at length in the

Resolution.

A. The Parking Ordinance is not unconstitutional under the U.S. Constitution

The Third Circuit has identified two criteria for evaluating

a vagueness challenge under the due process clause:

First, a statute making conduct unlawful must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). Second, "if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them."

Trade Waste Management Asso. v. Hughey, 780 F.2d 221, 235

(3d Cir. 1985). A court ruling on a facial challenge "must

consider any limiting construction a state or municipality has

placed on a law, including any administrative interpretation and

implementation of that law." Contractors Ass'n v. City of

Philadelphia, 945 F.2d 1260, 1269 (3d Cir. 1991). The procedure

followed is at issue "since 'the courts will not invalidate a

statute on its face simply because it may be applied

unconstitutionally, but only if it cannot be applied consistently

with the Constitution.'" Id. (quoting Hohe v. Casey, 868 F.2d 69,

71 n. 2 (3d Cir. 1989)(further citations omitted). The issue of

whether an ordinance is unconstitutionally vague "cannot be

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decided in a vacuum but must be made in light of its context and

with a firm understanding of its purpose," and "the

constitutional standard ...must not be mechanically applied."

DaPurificacao v. Zoning Bd. of Adjustment of Tp. of Union, 377

N.J. Super. 436, 443-444 (App.Div. 2005). The "crux" or key "of

a void-for-vagueness challenge under the Due Process Clause is a

lack of notice." Adhi Parasakthi Charitable v. Twp. of W.

Pikeland, 721 F. Supp. 2d 361, 380 (E.D. Pa. 2010). Finally, an

ordinance must contain a standard that can be objectively applied

to determine if the conduct at issue complied with the ordinance

and provides objective criteria that the board can apply in

determining the applications' compliance. Cunney v. Bd. of Trs.

of Grand View, 660 F. 3d 612, 622 (2d Circuit. 2011).

First, Ordinance § 21-22.1 is not unconstitutionally vague.

Plaintiffs argue that the Ordinance gives no specific notice of

how to design a parking plan that satisfied the Parking

Ordinance. To the contrary, the Ordinance "give[s]the person of

ordinary intelligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly." Trade Waste

Management Asso. v. Hughey, 780 F.2d at 235, citing Grayned v.

City of Rockford, 408 U.S. 104, 108 (1972). The Ordinance clearly

states its objective: to "provide for parking demand by requiring

off-street parking except as noted for residential development"

(ECF. No. 31, 2, p. 1). It is sufficiently specific to provide

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adequate notice to applicants as to what is required. This is

achieved through a schedule of "standards acceptable to the

Township" for certain enumerated residential and nonresidential

uses. (Id.) The schedule identifies parking space ratios for five

residential uses and approximately 18 non-residential uses

divided into commercial, industrial and institutional uses,

including "churches" (but not mosques). (Id.).

Although the Ordinance does not list parking ratios for all

conceivable uses, such as mosques, it provides that "[s]ince a

specific use may generate a parking demand different from those

enumerated below, documentation and testimony shall be presented

to the Board as to anticipated parking demand." (Id.) The

subsequent language that the Board "may...require that provision

be made for the construction of spaces in excess of those

required" is fully explained by, and subject to the previous

clauses. Therefore, the Ordinance makes it clear that this is

the standard to be applied by the Board to determine the parking

requirements for a proposed mosque, for example, i.e., that the

applicant would be required to submit documentation and testimony

to the Board as to their anticipated parking demand, which the

Board would then consider and rule upon. (Id.) The fact that the

Ordinance does not include parking requirements for all uses,

such as mosques, des not render it unconstitutionally vague; "it

is well understood that not all ordinances need attain the same

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level of definitional clarity, nor can it be expected that an

ordinance will expressly provide for all possible lawful uses."

DaPurificacao, 377 N.J. Super. at 443-444, citing Tanis v.

Township of Hampton, 306 N.J. Super. 588, 602 (App. Div. 1997)

(noting "the impossibility of providing expressly by zoning

ordinance for every possible lawful use,")(quoting Town of Salem

v. Durrett, 125 N.H. 29, 480 A.2d 9, 10 (1984)).

Plaintiffs rely upon Cunney, supra, to argue that the

Ordinance here is unconstitutionally vague, but Cunney concerned

building height criteria, not the number of parking spaces

required, and failed to specify the location of an elevation

point to actually measure the building's height whereas the

Ordinance here contains the necessary specifications. Id. at

622. The Ordinance also permissibly provides the Board with the

necessary flexibility to make appropriate decisions, by

recognizing that a specific use may generate a parking demand

different from the enumerated standards. The standards for the

Board's analysis are clearly stated: the applicant presents

documentation and testimony as to the anticipated parking demand,

based upon which the Board can allow for a lesser number of

spaces or require construction of spaces in excess of those

identified in the Ordinance. (ECF No. 31-2, p. 1). Therefore,

applicants like the Plaintiffs are given adequate notice as to

how parking requirements will be determined and also as to the

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parameters for the Board's exercise of its discretion.

Plaintiffs present no evidence to support their argument that the

Ordinance somehow did not put them on notice, and this claim is

belied by the record which shows that they were able to submit a

site plan and present supporting expert engineering testimony and

documentation on this issue. See Adhi Parasakth, 721 F. Supp. 2d

at 380. (The fact that the numbers supplied by the ISBR's experts

were not accepted by the Board does not render the Ordinance

unconstitutionally vague.

Second, the Ordinance did not vest the Board with arbitrary

power or an unfettered discretion to apply or enforce its

provisions. The Board's determination that more spaces were

needed was not an arbitrary exercise of discretion, but was based

upon the Ordinance and evidence and documentation presented by

the Plaintiffs and the objectors, including the authoritative ITE

parking standards. The Ordinance provides "explicit standards

for those who apply them" like the Board, and objective criteria

to determine an application's compliance. See Trade Waste, 780

F.2d at 235. The language in the Ordinance regarding use of the

schedule, and requiring the presentation and consideration of the

applicant's documentary and testimonial evidence, specifies the

method for the Board to exercise its discretion to treat the

facts of each application uniformly, "free from improper or

inappropriate considerations and from unfair discrimination." See

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Comite Patriotico Cultural Puertorriqueno, Inc. v. Vas, 2008 U.S.

Dist. LEXIS 49090, *20-22 (D.N.J. June 26, 2008)(quoting Cox v.

New Hampshire, 312 U.S. 569, 576 (1941)). The Board's exercise

of discretion is constrained by both the schedule of parking

standards and the requirement that the Board consider the

documentation and testimony by the applicant as to anticipated

parking demand. (ECF No. 31-2, p. 1).

Plaintiffs also misplace their reliance on Bykofsky v.

Middletown, 401 F. Supp. 1242 (M.D. pa. 1975), affirmed without

opinion, 535 F. 2d 1245 (3d. Cir. 1976), cert denied, 429 U.S.

964 (1976) which involved a penal ordinance, much of which was

held not to be too vague. The only provisions found to be vague

were the phrases "normal...night-time activities" and "a minor

well along the road to maturity," because the ordinance did not

specify what is normal or what indicia of maturity was to be

used, therefore providing unbridled discretion. Id. at 1249.

Bykofsky did not find a provision permitting minors to be on the

streets in a case of "reasonable necessity" to be

unconstitutionally vague, and instead acknowledged that striking

this down would remove "a desirable flexibility that enables the

law to be applied in a rational manner to any given situation,

including circumstances not now foreseeable." 401 F. Supp. at

1249 (emphasis added). Ordinance § 21-22.1 is not a penal

ordinance, does not contain vague undefined standards as in

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Bykofsky, and any "flexibility" found in the Ordinance is

appropriate and allows it to be applied to any proposed or

special use.

Plaintiffs argue that a "more strict vagueness test" applies

to statutes that affect First Amendment rights, citing Hoffman

Estates v. Flipside, 455 U.S. 489 (1982). However the Hoffman

ordinance did not involve parking, was held not to be vague, and

did not reach a substantial amount of constitutionally protected

conduct. Id. at 501-505. MAG Realty, LLC v. City of Gloucester

City, 2010 U.S. Dist. LEXIS 82035, *33, 54 (D.N.J. Aug. 12, 2010)

is also distinguishable as it involved a first amendment right

(erotic dancing) and was "indecipherable." The instant Ordinance

contains clearly specified terms and Plaintiffs cite no cases to

show that a parking ordinance is subject to the "more strict

vagueness test" applied when first amendment rights are

implicated.

The Ordinance also did not "abandon" a 3:1 ratio to apply an

individualized assessment as Plaintiffs charge, because, again,

the 3:1 ratio was identified in the schedule as applying to

"churches" - not mosques. For the above reasons, Plaintiffs

failed to show that the Ordinance as a whole, or any part of it

is unconstitutionally vague.

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B. The Parking Ordinance is not unconstitutional under the New Jersey Constitution and none of it should be excised

The Ordinance is also not unconstitutional under the New

Jersey Constitution. Like all zoning ordinances, the Ordinance

"enjoys a presumption of validity," and "[t]he party attacking

the ordinance bears the burden of overcoming this presumption."

See Damurjian v. Board of Adjustment of the Tp. of Colts Neck,

299 N.J. Super. 84, 93 (App.Div. 1997). The Ordinance must be

liberally construed in favor of the municipality. See Twp. of

Pennsauken v. Schad, 160 N.J. 156, 171 (N.J. 1999).

The language in the Ordinance satisfies the requirement that

a zoning ordinance "must be clear and explicit in its terms,

setting forth adequate standards to prevent arbitrary and

indiscriminate interpretation and application by local

officials." J. D. Constr. Corp. v. Board of Adjustment, 119 N.J.

Super. 140, 149 (Law Div. 1972). Again, the Ordinance does not

grant the Board unbridled discretion, but specifically provides

that the Board must look to the schedule and consider the

applicant's documentation and evidence. These are sufficiently

clear standards to prevent subjective or arbitrary

determinations, provide workable guidelines for applicants, and

the Ordinance sets and provides courts with understandable

criteria to determine if the decision was arbitrary or

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capricious. See Lionshead Woods Corp v. Kaplan Bros., 250 N.J.

Super. 535, 51 (Law. Div. 1991).

Plaintiffs rely upon Damurjian, supra, and Diocese of

Metuchen v. Piscataway Twp, 252 N.J. Super 525 (Law Div. 1991)

neither of which involved off-street parking ordinances.

Plaintiffs also cite to Associated Land & Invest. Corp. v. City

of Lyndhurst, 154 N.E.2d 435 (Ohio 1958), a non-binding Ohio

state case which involved undefined terms such as "reasonably

adequate" and "normal volume." No such undefined terms are at

issue with regard to Ordinance § 21-22.1, and it plainly contains

sufficient standards to guide the Board in exercising its

discretion.

Finally, all of Ordinance § 21-22.1 is constitutional and no

portions should be excised.

CONCLUSION

For the foregoing reasons, Defendants respectfully request

that this Honorable Court deny Plaintiff's Motion for Partial

Judgment on the Pleadings in its entirety.

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Respectfully submitted,

MARSHALL DENNEHEY WARNERCOLEMAN & GOGGIN

By: /s/ Howard B. MankoffHOWARD B. MANKOFF, ESQ.Attorneys for Defendants, Township Of Bernards, Bernards Township Planning Board, Bernards Township Committee, Barbara Kleinert, Jeffrey Plaza, Jim Baldassare, Jodi Alper , John Malay, Kathleen “Kippy” Piedici, Leon Harris, Paula Axt, Randy Santoro, Rich Moschello, Scott Ross, Carol Bianchi, Carolyn Gaziano, Thomas S. Russo, Jr. and John Carpenter

Dated: June 6, 2016

LEGAL/105487988.v1FOLDER 4 - PLEADINGS

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