The farm, dormant since about 2005, is one of a dwindling number of undeveloped lots in an area that has seen a spike in construction in recent years, especially of multi-family homes for Haredi, or ultra-Orthodox, Jews migrating from the increasingly crowded Lakewood.
In 2015, Haredi developers contracted to buy the land, planning to turn it into a development of about 100 townhouses, 80,000 square feet of commercial space and a 3,600-square-foot religious center. They were blocked by the government of Toms River, a town of 94,000 which has a growing Haredi community of about 700 families, according to a local Jewish group.
The town decided to purchase the partially forested plot itself, seizing it by eminent domain — a tactic it had used in 2014 to purchase another plot where an Orthodox developer had planned to build a synagogue. Toms River officials said they wanted to keep the old farm as open green space to balance out the town’s rapid growth, but the Haredi developers accused them of illegally discriminating against the burgeoning Orthodox community.
The lawsuit the developers filed last year was among a spate of similar cases in which Orthodox groups claim cities and towns in the New York area are being anti-Semitic in thwarting their plans for housing, schools and synagogues large and small. The suits are based on the Religious Land Use and Institutionalized Persons Act, a law known as RLUIPA that since its enactment in 2000 has helped religious groups including small Buddhist temples and evangelical mega-churches combat opposition to development projects.
For this story, the Forward reviewed over a dozen RLUIPA cases filed in New York and New Jersey over the past decade and spoke to ten experts and lawyers that have represented parties in these cases.
On Thursday, New York Attorney General Letitia James filed a motion to intervene in a long-running suit in which Hasidic developers have accused a town in Orange County of anti-Semitic intent in blocking their attempts to build hundreds of homes. The developers have filed suits at both a state court and in federal court.
“Blocking the construction of homes to prevent a religious group from living in a community is flat out discriminatory,” James said in a press release.
The Town of Chester & Orange Co have allegedly engaged in a campaign to stop members of the Jewish community from moving to Chester by blocking the construction of a housing development. Not on my watch: I’m intervening in a lawsuit to fight these clear acts of anti-Semitism.— NY AG James (@NewYorkStateAG) December 5, 2019
Toms River officials, as well as the Haredi developers, both declined requests for interviews or to answer specific questions about the case.
But Roman Storzer, a lawyer representing the developers, said: “There really is a significant targeting going on, where you have local municipalities actually passing laws to keep out what is usually Orthodox Jewish populations.”
Mr. Storzer’s firm has won or settled 10 RLUIPA cases for Orthodox clients in New York and New Jersey since 2014, adding three lawyers to handle such suits.
Tom’s River is familiar with the challenge. In 2018, a federal judge said the town was violating the law by requiring a local Chabad center to receive a variance to operate there, ordering the town to pay the Chabad $122,500 in legal fees and damages and prompting officials to hire Marci Hamilton, a scholar of religious liberty law at the University of Pennsylvania, as a consultant.
“It’s a very disruptive law,” said Hamilton, who has represented over a dozen towns across the country defending RLUIPA suits. “It literally cuts out the rest of the community, and makes the privileged place for religious landowners.”
The specter of anti-Semitism
The RLUIPA disputes are a mix of mundane zoning details and universal questions of belonging and discrimination. The law requires plaintiffs to prove that officials are acting with discriminatory animus against their religious group, though in many cases, just surfacing hateful comments that residents have made at public meetings or on social media have pressured governments to settle for large dollar amounts.
“On the one hand, you can’t hold a town council to everything that some crazy person in the audience says during the comment period,” said Howard Friedman, a retired law professor who runs a popular blog on religious liberties cases. “On the other hand, it appears that many of these boards are affected by the attitudes of the community, and they hold public hearings for exactly that reason: to get the input of the people involved.”
In Toms River, the complaint cites both a 2016 incident in which the town’s mayor called the growing Haredi presence “an invasion,” and even blunter comments from residents, including one referring to the Orthodox Jews as “stinkin cockroaches.”
“You may hear people talk about issues like traffic, or aesthetics, as pretextual justifications for denying such permits,” said Storzer, the lawyer for the plaintiffis. “Nearly always, you’ll see that such reasons were never used to deny Christian churches, other schools, other institutions that exist in the very same municipalities.”
The latest spate of cases focus on newer strategies towns have adopted that, lawyers for the plaintiffs argue, seem designed to specifically target particular aspects of ultra-Orthodox life. Jackson, near Toms River, for example, has been sued for enacting a rule preventing the building of schools with dormitories, which are the norm in such communities.
Toms River itself is currently considering reducing its current minimum lot size for houses of worship, a rule adopted in 2009, from 10 acres to two, to avoid RLUIPA suits. Orthodox Jews prefer smaller synagogues distributed throughout neighborhoods, since they cannot drive on Shabbat.
Experts are divided on whether the growth in RLUIPA disputes cases is related to a nationwide increase in anti-Semitic incidents, including the tide of attacks on visibly Orthodox Jews in Brooklyn, or if it is more likely about NIMBYism.
Marc Stern, the chief legal officer of the American Jewish Committee, said the zoning laws are different from the broad anti-Semitism evinced by people like David Duke, the former Klu Klux Klan leader, or Louis Farrakhan, leader of the Nation of Islam.
In some cases, Stern said, it’s simply that “the need in Orthodox communities for synagogues within walking distance clashes with people’s visions of more rural and more suburban communities.” In others, he said, he sees anti-Semitism that is “raw and ugly, and that’s actually not a bad thing when it surfaces, because you’ll almost always win the case.”
Among the disputes that tend to settle quickly are those involving eruvs, the unobtrusive string or wiring, often hung from telephone poles, that the Orthodox use to create a zone inside which they are permitted under Jewish law to carry things on the Sabbath and holidays.
“In an eruv case, there’s really no question that the only actual opposition is discrimination, because nobody is bothered by plastic strips on a pole that nobody knows is there,” said Yehudah Buchweitz, a lawyer who has represented several Jewish groups in such cases.
Lawyers for the towns defending the suits concede there can be instances of obvious anti-Semitism, but say that allegations of anti-Semitism are invoked much more frequently to browbeat municipalities into settling.
“The lawyers in these cases start name-calling really early on,” said Hamilton, the University of Pennsylvania professor hired by Toms River. “It changes the discourse, it alienates the neighbors, and it really does intimidate the local government.”
A shield or a cudgel?
RLUIPA disputes are difficult, if not impossible, to track, experts say, because they are brought in different federal courts and in many cases are settled before reaching the lawsuit stage. Yet seven lawyers and academic experts interviewed over the last few months said there has been a clear rise in RLUIPA activity nationwide, across religions.
“We only see the cases that go to court,” said Patricia Salkin, a professor at Touro Law School and a provost for the school, who studies land use law. “There are many more instances where groups will just hire a lawyer and tell the community that you’re violating our religious rights.”
Relatively few cases go to trial, but plaintiffs have won considerable settlements. Earlier this year, the town of Clifton, N.J., was ordered to pay $2.5 million to an Orthodox congregation that claimed their synagogue building project was excessively delayed. In Pomona, N.Y., a town of about 3,200, a rabbinical college is currently seeking $5.2 million in legal fee reimbursements after winning a suit that cleared the way for the development of its campus. Pomona’s 2018 budget was $2.8 million.
The town governments “don’t realize how strong the religious-liberty protections are,” said Keisha Russell, a lawyer for the Liberty First Institute, which is representing Hasidic Jews suing Airmont, a town near Monsey.
But avoiding RLUIPA actions is not so simple. Earlier this year, Chestnut Ridge, a town of about 8,000 near Monsey, changed a law that set the minimum lot size for a house of worship at five acres after an Orthodox group filed a RLUIPA suit against the town. Now a group of non-Orthodox residents, including some Jews, is suing the town board, saying that the rule change unfairly bowed to religious pressure.
Salkin, the land-use law professor, who is Jewish, saw this situation as a cautionary tale.
“As Jews, we have to work even harder to make peace with the community so we don’t have to live in an environment of anti-Semitism running amok,” she said, “just because we exercised our legal rights.”
In Toms River, too, there are divisions within the Orthodox communities about the egg-farm case. Members of the Toms River Jewish Community Coalition said that the local Orthodox currently have strong relationships with town officials, but that the developers who filed the lawsuit are from Lakewood, not locals.
“We’re not foolish enough to push ourselves into believing that were immune to anti-Semitism,” said Michael Waldner, a member of the coalition. “We’re just grateful that, at present, currently, Toms River is a friendly place to live in.”