Justice Dept. Threatens To Sue Toms River Over 10-Acre Zoning

TOMS RIVER, NJ — Under threat of a federal lawsuit, the Toms River Township Council has authorized its attorneys to sit down with the Justice Department to seek a resolution to charges that its zoning ordinances "unreasonably limit religious exercise."

The township was notified of the potential litigation Sept. 17 in a letter from the Justice Department that was read aloud at the council meeting Tuesday night.

The letter (read it in full below) said an investigation into Toms River's zoning practices found the zoning requirement for a 10-acre parcel for a house of worship would "unreasonably limit" and "substantially burden religious exercise" for Orthodox Jews "and others who worship in small settings, travel on foot to attend houses of worship because of sincerely held religious beliefs, and have minimal need for parcels with large acreage."

It gave the township until Sept. 29 to agree to negotiate a settlement before a federal lawsuit is filed. The council voted 6-1 to authorize attorney Marci A. Hamilton, who specializes in land use issues and the federal Religious Land Use and Institutionalized Persons Act, to engage in those negotiations.

Councilwoman Laurie Huryk, who sits on the council's land use committee, said the negotiations are important to limit how much the issue costs Toms River, as well as giving the town some say in the zoning.

Other towns that have been sued by the Justice Department have paid out settlements in the millions of dollars, Assistant Township Attorney Anthony Merlino said. North Jersey towns have come under scrutiny over zoning issues and religious conflicts, as have some in New York state.

Bernards Township was ordered to pay $3.25 million in damages after it was sued for denying an application for construction of a mosque and for changing zoning rules after the application was filed by the Islamic Society of Basking Ridge. (RELATED: Mosque Will Be Built In Basking Ridge, Town Must Pay $3.25M)

Not negotiating "would result in the federal government dictating how we rezone our town," Huryk said.

Councilman Dan Rodrick voted no because the township is not being sued at this time, and accused the rest of the council and Mayor Maurice Hill of breaking promises to voters over the zoning for houses of worship.

"This is to have a discussion of what they would like to see and what Toms River would like to see," Council President Maria Maruca said. "Once we get to court, we lose that ability."

Toms River's zoning ordinances have been under a microscope since April 2016, when the Justice Department first requested documents and records in the wake of a federal discrimination lawsuit filed by Rabbi Moshe Gourarie of Chabad Jewish Center of Toms River after the zoning board denied his request to hold religious services at his home without a variance.

Zoning in the North Dover section has been contentious for several years, as open space has been turned into hundreds of homes in areas surrounding Lakewood. The tensions have been heightened by conflicts between the Orthodox Jewish community and non-Jews, resulting in what Gourarie's lawsuit called "a rising tide of anti-Semitism among the Toms River government and population."

Gourarie's lawsuit alleging discrimination under the Religious Land Use and Institutionalized Persons Act ("RLUIPA") and the Fair Housing Act was settled in April 2018. Federal Judge Freda Wolfson issued a judgment in favor of the Chabad that cost the township $122,500, and the Justice Department closed its investigation in the wake of the settlement.

But in December 2018, after then-Attorney General Jeff Sessions announced a sharper focus on issues surrounding the federal religious land use statutes, the Justice Department reopened the investigation in Toms River.

Ensuing discussions in the council's land use committee became a significant issue during the mayoral campaign last September, when a rough draft was circulated of an ordinance proposal to reduce zoning on houses of worship to 2 acres. It set off a firestorm of accusations that Mayor Maurice Hill, then still a councilmember, was being overly influenced by members of the Orthodox Jewish community.

Huryk at the time said the rough draft of the ordinance was just a draft and was nowhere near ready to move forward.

All discussions of the zoning ordinance were tabled after the controversy erupted until 2020 by then-Council President George Wittmann, who chose not to seek re-election in 2019.

Toms River officials, in a news release following Tuesday's council meeting, said Hamilton had been in communication with the Justice Department in February 2019 about potential changes to the zoning acreage, including a series of proposals that included reducing the 10-acre minimum to 7 acres minimum.

The letter last week was "the first substantive response to the township" since the investigation was reopened, town officials said. The threat of a federal lawsuit was unexpected.

The Justice Department, in the letter, said Toms River will have to make "significant changes that address the needs of Orthodox Jews and others who worship in small settings, travel on foot to attend houses of worship because of sincerely held religious beliefs, and have minimal need for parcels with large acreage."

It also said that just "revising the township’s zoning ordinance to such that houses of worship require 7 or more acres is insufficient to remedy the township’s violations of RLUIPA."

Rodrick insisted the township should wait until a lawsuit is filed before acting. He also accused the council and Hill of lying to residents over the issue, saying they promised the zoning would not change, and accusing them of acting secretly to make changes.

"We have an impending federal suit," Huryk said. "It's not Mayor Hill's plan. ... We have a letter that the attorney general has been authorized to sue Toms River."

"There was no conspiracy. There was no machination about secretly changing things," she said.

In the written statement, Toms River officials said the town "has made significant strides toward greater religious inclusivity and views this opportunity as a way of furthering those important interests for all residents."

"By opting for collaboration over confrontation, the Township will be able to ensure that any amendments that might be necessary to satisfy the Township's obligations under RLUIPA will still further the goals of responsible development, public safety, and quality of life," the statement said. "Reaching a mutually agreeable and responsible accord with the Justice Department, if possible, is a far more prudent approach than potentially costly and protracted litigation."

You can read the letter in full here:

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