Toms River Council OKs Zoning Changes Approved By Justice Dept.

TOMS RIVER, NJ — The Toms River Township Council approved an ordinance Tuesday night to finalize a settlement with the U.S. Department of Justice over the township's zoning for houses of worship.

The zoning ordinance makes a number of changes, most notably reducing the minimum acreage for a house of worship to 2 acres from 10 acres, rolling back the town's zoning ordinance to what it had been prior to a change in 2017, township attorney Anthony Merlino said.

The zoning ordinance changes satisfy a settlement of a lawsuit by the Justice Department, which said Toms River violated the Religious Land Use and Institutionalized Persons Act when it changed the zoning for houses of worship to 10 acres.

"The jump in the law from 2 to 10 created the discrimination," said Marci Hamilton, an attorney and professor at the University of Pennsylvania who is the preeminent expert in RLUIPA in the country.

"This would have been at least a $10 million fine," Hamilton said, noting that the township would have had to pay all the attorneys' fees, for both the township and the Justice Department, in the lawsuit. "Toms River cut this off before it became ridiculously expensive."

Hamilton said the change doesn't guarantee that zoning denials won't prevent disgruntled zoning applicants from filing lawsuits, but will withstand the challenges.

"This is a good set of principles on the books that are defensible again and again," Hamilton said.

Councilman Dan Rodrick voted against the ordinance. He has repeatedly opposed the settlement and has repeatedly used the 2-acre zoning change as a basis to claim in his election campaigning that the town is headed for "Lakewood-style development," a reference to extensive development in Lakewood due to the significant increase in the Orthodox Jewish population — a reference that has drawn criticisms of antisemitism.

Rodrick also claimed Mayor Maurice Hill had flip-flopped on the zoning, citing a letter from 2019 by Hill, parts of which Rodrick read. Hill, after the meeting, said the letter in question had been sent in response to questions of whether such a change was going to be presented to the Land Use Committee. The issue was never presented to the land use committee, Hill said.

Merlino said if Toms River had continued to fight it, the township would have been on the hook to pay all of the costs associated with the lawsuit if Toms River lost, because the township's insurance carrier said it would not cover the cost of the lawsuit.

The ordinance approval leaves Toms River to resolve two federal civil rights lawsuits that were filed by private citizens.

Toms River had the 2-acre minimum lot size in place from 1974 until 2017. Of the 30 houses of worship in the township, 22 of them are on property that is 2 acres or less. They cannot be built in residential zones unless the property is bounded by a state or county road, and then they must comply with other zoning requirements, including parking and other issues.

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