Congregation Anshei Roosevelt; Congregation Yeshivas Me’on Hatorah v. Planning

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3907
CONGREGATION ANSHEI ROOSEVELT;
CONGREGATION YESHIVAS ME’ON HATORAH
Appellants
v.
PLANNING AND ZONING BOARD OF THE BOROUGH OF ROOSEVELT;
MAYOR AND COUNCIL OF THE BOROUGH OF ROOSEVELT;
BOROUGH OF ROOSEVELT; ROOSEVELT PRESERVATION ASSOCIATION LLC;
JEFFREY ELLENTUCK; PEGGY MALKIN; STEVEN YEGER; JANE ROTHFUSS;
ALLISON PETRILLA; JAMES ALT
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-07-cv-04109)
District Judge: Honorable Garrett E. Brown, Jr.
Argued on July 7, 2009
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges
(Opinion filed: July 22, 2009)
Bruce D. Shoulson, Esquire (Argued)
Lowenstein & Sandler
65 Livingston Avenue
Roseland, NJ 07068-0000
Counsel for Appellants

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Howard D. Cohen, Esquire
Michael E. Sullivan, Esquire
Parker McCay
1009 Lenox Drive
Building Four East, Suite 102A
Lawrenceville, NJ 08648-0000
Marci A. Hamilton, Esquire (Argued)
36 Timber Knoll Drive
Washington Crossing, PA 18977-0000
Michele R. Donato, Esquire
106 Grand Central Avenue
P.O. box 145
Lavellette, NJ 08735
Counsel for Appellees
OPINION
AMBRO, Circuit Judge
Appellants Congregation Anshei Roosevelt (the “Congregation”) and
Congregation Yeshivas Me’On Hatorah (the “Yeshiva”) filed a complaint in the District
Court of New Jersey against, among others, the Borough of Roosevelt, New Jersey, its
Mayor and Council, and its Planning and Zoning Board. The complaint asserted
violations of the Religious Land Use and Institutionalized Persons Act of 2000
(“RLUIPA”), 42 U.S.C. § 2000cc et seq., and various claims arising under state law. The
Borough, the Mayor, the Council, and the Zoning Board moved to dismiss the complaint
as not ripe for judicial review. The District Court granted the motion and this appeal

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The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).1
We have appellate jurisdiction under 28 U.S.C. § 1291.
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followed. We conclude as well that the federal claims are not ripe for our review, and1
thus affirm the District Court’s dismissal.
Because we write solely for the parties, we recount only the facts relevant to our
analysis. The Congregation is located within the Borough, a small New Deal resettlement
community. The synagogue housing the Congregation was constructed before the
Borough adopted any zoning regulations, but subsequent zoning ordinances designated
the area as an R-40 Zone, in which houses of worship are permitted as conditional uses.
The synagogue does not meet all the necessary conditions for use. However, under the
New Jersey Municipal Land Use Law, a pre-existing structure may continue in use
notwithstanding its failure to comply with an after-enacted zoning ordinance. See N.J.
Stat. Ann. § 40:55D-68.
In 2005, the Congregation entered into an agreement with the Yeshiva. Pursuant
to the agreement, the Yeshiva would provide the Congregation with needed rabbinical
services, and the Congregation would allow the Yeshiva to conduct study and worship
activities at the synagogue. After the Yeshiva began operating on the property, a
neighbor complained to the zoning officer that the synagogue property was being used for
a private school in violation of the local ordinance. The zoning officer consulted with the
Borough attorney, who provided a written opinion that the Yeshiva’s use was

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The hearings were conducted on December 13, 2005, March 14, 2006, and2
September 12, 2006.
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comprehended within the existing synagogue use. The zoning officer thereafter ruled that
the Yeshiva could continue to operate on the property.
The Roosevelt Preservation Association, a concerned citizen’s group, appealed the
zoning officer’s decision to the Board, which subsequently held hearings. Rabbi2
Zevulun Charlop, an expert on Jewish religious practice, testified that: a Yeshiva is a
place where people congregate to study Torah and worship; a synagogue may not
necessarily be a Yeshiva, but a Yeshiva is part of a synagogue; and a synagogue serves as
a house of worship and of study. The Temple President testified that the residence on the
property was housing six rabbis in training. Objecting neighbors testified that there were
about 34 students enrolled in the Yeshiva and living in buildings throughout the Borough,
the students congregate on the property and the street in the evenings, and there are
numerous vehicles traveling to and from the synagogue on a daily basis.
On July 24, 2007, the Board adopted a resolution overturning the decision of the
zoning officer. It accepted Rabbi Charlop’s testimony that a Yeshiva can be a synagogue,
but went on as follows:
The argument that the Yeshiva is a function of a Jewish house of worship
may be accurate. The problem is that from a land use perspective, the
Yeshiva has resulted in a significant increase in the intensity of the use. A
variance is necessary since the Yeshiva is an expansion of an already
nonconforming use.

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The Board noted that although a house of worship may have religious classes, in
this instance the students were outside late at night, an activity that was not a religious
exercise. It determined that the Yeshiva was now a boarding school, with six junior
rabbis living in the residence and students residing in a home on another property. The
Board took note that the lease between the Yeshiva and the Congregation contained
provisions allowing for further expansion, and determined that “[m]unicipal overview of
such a proposal is necessary to protect the public health and safety and the integrity of the
zone plan.”
The Board determined that filing a variance application would not substantially
burden the Congregation and the Yeshiva. It noted that “[n]othing in the [] decision on
this appeal should be interpreted as being opposed to the establishment of the Yeshiva on
the property.” It concluded that “[t]he sole decision rendered is that land use approval is
required and the Zoning Officer erred in allowing the Yeshiva to be established without
such approvals. . . . [T]he Zoning Officer erred in that the proposal is a significant
intensification of the non-conforming use and should not have been allowed as of right
without any municipal review or approval.”
On appeal, the Congregation and the Yeshiva urge that the matter is ripe for
review because the Board’s decision was a final determination on: (1) the issue of
whether the Yeshiva is a house of worship use, and therefore is permitted as a pre-

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We exercise plenary review over the District Court’s dismissal of the complaint for3
failure to state a claim under Rule 12(b)(6). Jordan v. Fox, Rothschild, O’Brien &
Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). We must “‘accept all factual allegations as
true, construe the complaint in the light most favorable to the plaintiff, and determine
whether, under any reasonable reading of the complaint, the plaintiff may be entitled to
relief.’” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting
Pinker v. Roche Holdings Ltd, 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
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existing conditional use; and (2) the application of the zoning regulations to the property.3
Ripeness is a jurisdictional inquiry, rooted in both the case or controversy
requirement of our Constitution’s Article III and judge-made prudential limitations on the
exercise of judicial authority. Murphy v. New Milford Zoning Comm’n, 402 F.3d 342,
347 (2d Cir. 2005) (citing Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733 n.7
(1997)). The ripeness doctrine’s “basic rationale is to prevent the courts, through
avoidance of premature adjudication, from entangling themselves in abstract
disagreements . . . .” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), overruled on
other grounds, Califano v. Sanders, 430 U.S. 99 (1977).
In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985), the Supreme Court developed specific ripeness requirements
for land use disputes. It held that the takings claim at issue was “not ripe until the
government entity charged with implementing the regulations has reached a final decision
regarding the application of the regulations to the property at issue.” Id. at 186.
Subsequent decisions applied this ripeness requirement to land use disputes implicating
other constitutional claims. See Murphy, 402 F.3d at 350 (Free Exercise Clause and

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RLUIPA claims); Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285 (3d Cir. 1993)
(due process and equal protection action under 42 U.S.C. § 1983).
The Court in Murphy explained that the finality requirement of the ripeness
inquiry: (1) aids in the development of a full record; (2) provides the court with
knowledge as to how a regulation will be applied to a particular property; (3) may obviate
the need for the court to decide constitutional disputes if a local authority provides the
relief sought; and (4) shows “the judiciary’s appreciation that land use disputes are
uniquely matters of local concern more aptly suited for local resolution.” 402 F.3d at 348
(internal citations omitted).
The Congregation and the Yeshiva argue that there is a final determination by the
Board that the Yeshiva is not a house-of-worship use, and is therefore in violation of the
local zoning ordinance. The Congregation and the Yeshiva assert that the ordinance has
no application to the Yeshiva use because it is a component of the pre-existing and
protected house-of-worship use.
This argument, however, is based on the mistaken belief that the Board determined
that the Yeshiva was not a permitted use. It did not do so. Instead, the Board determined
that it “may be accurate” that the Yeshiva is a function of a house of worship, but the
problem was that it resulted in a significant increase in the intensity of that use and,
therefore, a variance was necessary to consider the effect on the neighborhood. See, e.g.,
Sterngrass v. Town of Woodbury, 433 F. Supp. 2d 351, 354-55 (S.D.N.Y. 2006)

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The Congregation and the Yeshiva argue that the Board’s Resolution was a final4
definitive position regarding how it will apply the regulations to the property because
when a board extensively considers a land use appeal, as it did here, a variance
application is not necessary.
In Murphy, the zoning officer issued a cease-and-desist order that the plaintiffs did
not appeal before filing a complaint alleging violations of the First Amendment and
RLUIPA. The Second Circuit Court determined that the claim was not ripe because the
plaintiffs did not appeal to the board. 402 F.3d at 352. It also noted that the failure to
apply for a variance deprived the court of any certainty as to what use the property would
be permitted. Id. at 353.
In Taylor, the plaintiffs’ use permit was revoked. We noted that the plaintiffs did
not reapply for the use permit, appeal the revocation, or seek a variance, but rather,
“instead of taking one of these actions,” challenged the revocation of the use permit under
the Fourteenth Amendment. 983 F.2d at 1289. Therefore, we held that the claims were
not ripe because the Township had not rendered a final decision regarding the permit
revocation. Id. at 1292.
While it is true that the plaintiffs in Murphy and Taylor did not seek any review of
an initial land use decision, as the Congregation did here, it does not necessarily follow
that a decision by a board on appeal is a final determination ripe for federal review. Nor
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(acknowledging that plaintiff had the right to continue existing non-conforming uses, but
not to expand or change the non-conforming uses). In short, the Board did not determine
that the Yeshiva was not a house of worship and thereby a violation of the ordinance.
The Board’s resolution speaks only to its determination that the Yeshiva represents an
intensification of use requiring a variance.
The Congregation and the Yeshiva also argue that there is a final determination by
the Board regarding the application of the regulations to the property at issue. We
consider whether the Board’s resolution was such a final determination, making the
RLUIPA claim ripe for review, by examining the facts and the claim in light of the four
considerations outlined by the Second Circuit Court in Murphy.4

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can we say that a variance application is always necessary to satisfy the finality
requirement. The cases are fact-specific.
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RLUIPA, “‘the latest of long-running congressional efforts to accord religious
exercise heightened protection from government-imposed burden,’” addresses, among
other things, land use regulations. Lighthouse Inst. for Evangelism, Inc. v. City of Long
Branch, 510 F.3d 253, 261 (3d Cir. 2007) (quoting Cutter v. Wilkinson, 544 U.S. 709, 714
(2005)). The land-use section of the statute is divided into two subsections, which
provide:
(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.
. . . . .
(b) Discrimination and exclusion
. . . . .
(2) Nondiscrimination
No government shall impose or implement a use regulation that
discriminates against any assembly or institution on the basis of
religion or religious denomination.
. . . . .
42 U.S.C. § 2000cc(a), (b). “The use, building, or conversion of real property for the

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purpose of religious exercise shall be considered . . . religious exercise.” Id.
§ 2000cc-5(7)(A), (B). A plaintiff asserting a claim under the RLUIPA substantial
burdens provision must show that the board’s action was a substantial burden on religious
exercise, was not done in furtherance of a compelling government interest, and not
imposed in the least restrictive manner. See Westchester Day Sch. v. Vill. of
Mamaroneck, 386 F.3d 183, 190 (2d Cir. 2004).
The factual record is not sufficiently developed to decide fully the RLUIPA claim
here, and the Board has not issued a definitive position as to the extent the Yeshiva can
operate on the synagogue property. If the Congregation and the Yeshiva apply for a
variance, the Board would develop a record to determine the potential effect of the use,
and whether (and, if yes, to what extent) the use is permitted. As the District Court noted,
this would allow the Board to collect information about the exact population of the
Yeshiva, the degree to which traffic increased, whether and how much time students
spend out on the streets, and the Yeshiva’s plans for growth. We do not have a record of
this currently before us. We also do not know how the Board will apply the zoning
ordinance to the synagogue property. The Board may decide to allow the Yeshiva to
operate fully, it may place some restrictions, or it may deny any operation of the Yeshiva
on the property.
Permitting the Board to reach a final determination on a variance application may
resolve the constitutional issues the Congregation alleges. For starters, it is not apparent

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The Congregation and the Yeshiva filed, on September 17, 2008, an action in lieu of5
prerogative writs in the Superior Court, Law Division, Monmouth County, New Jersey,
against the Board and the Roosevelt Preservation Association (the Borough is a third-
party defendant), appealing the decision of the Board. They argue that the decision of the
state court in this matter, which denied the Board’s motion to dismiss on res judicata and
ripeness grounds, confirms that the Board’s Resolution is a final position subject to
judicial review. See Congregation Anshei v. Board, No. MON-L-43086-08 (N.J. Super.
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that the Congregation has suffered any constitutional injury simply because it must apply
for a variance; indeed, it appears the Yeshiva is still operating at the synagogue. Put
simply, we do not know the extent, if any, of the Congregation’s alleged RLUIPA injury
without a final determination as to whether the Yeshiva will be permitted on the property.
We do not even have a complete record from which we can address and determine the
issue of whether there has been any burden on the Congregation and the Yeshiva, and
whether that burden is a result of a compelling government interest and is implemented in
the least restrictive means. See, e.g., Grace Cmty. Church v. Lenox Twp., 544 F.3d 609,
616 (6th Cir. 2008) (finding RLUIPA claim not ripe because record was devoid of efforts
by the church to complete the factual record, explain its position to the commission, or
appeal to the board).
Finally, we have stressed “the importance of the finality requirement and our
reluctance to allow the courts to become super land-use boards of appeals. Land-use
decisions concern a variety of interests and persons, and local authorities are in a better
position than the courts to assess the burdens and benefits of those varying interests.”
Sameric Corp. of Delaware, Inc., v. City of Phila., 142 F.3d 582, 598 (3d Cir. 1998).5

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Ct., Feb. 2, 2009) at A393. Whether the state-law claims are ripe under New Jersey law
is distinct from whether the federal claims are ripe for review. Thus, we do not consider
the state action to dispose of the issue before us. See MCI Telecomm. Corp. v.
Teleconcepts, Inc., 71 F.3d 1086, 1109 (3d Cir. 1995) (federal court looks to federal, not
state, law to determine jurisdiction).
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We thus affirm the District Court’s dismissal of the complaint.

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