U.S. District Judge Joseph Rodriguez/photo by Carmen Natale

A New Jersey federal judge has denied a motion by the city of Vineland and several local officials to dismiss a local Muslim group's suit claiming its efforts to establish a mosque are being strangled in red tape.

A suit over sewage permitting is ripe for adjudication under the Religious Land Use and Institutionalized Persons Act because it makes a claim that the purported issue is a pretext for discrimination, U.S. District Judge Joseph Rodriguez ruled Wednesday in Garden State Islamic Center v. City of Vineland.

RLUIPA suits involving mosques have been treacherous territory for other New Jersey municipalities in recent years. In February, Bayonne paid $400,000 to settle a suit claiming its denial of a zoning permit for a mosque was motivated by anti-Muslim bias. In 2017, Bernards Township agreed to a $3.25 million settlement over a mosque that was denied approval, and in 2014, Bridgewater agreed to a $5 million settlement in a similar case.

In the Vineland suit, the Garden State Islamic Center claims that the city is imposing a substantial burden on its religious practice, in violation of the RLUIPA, by withholding permit approvals and a final certificate of occupancy, and by assessing tax liens against the mosque despite its exemption as a religious institution.

The mosque is currently operating in a limited capacity under a temporary certificate of occupancy. Vineland has withheld the mosque's final certificate of occupancy based on an alleged sewer output in excess of the level contemplated in a permit, which was granted based on the information in the initial plans. But once the mosque was constructed, the city claims, an inspection revealed that the building contained additional uses that were not previously identified in the plans.

Vineland declared it could not issue a certificate of occupancy until the plaintiff could secure a “flow determination” from the state Department of Environmental Protection. And the city claimed that the suit is not ripe for adjudication because the center has not exhausted its administrative remedies with the DEP.

The center contended that its RLUIPA claim is ripe for adjudication, citing a Christian church that was granted local approval without the need to obtain a DEP permit. The All The Nations Assembly Church of God, with a full-time nursery school and day care center, and 500 members, was deemed to generate less than 2,000 gallons of waste per day, the center said. Meanwhile, the plaintiffs' mosque has less than half as many members and no daily nursery school or day care center, but was determined by the defendants to have a water use of 3,000 gallons per day, according to the suit.

Besides Vineland, the suit named as defendants Dale Jones, city health director; Gary Lugiano, senior registered environmental health specialist; and Carmen DiGiorgio, the city tax collector. In addition to RLUIPA, the plaintiff brought claims for equal protection, due process and unlawful taxation.

In his Wednesday decision, Rodriguez deemed the dispute ripe for adjudication under RLUIPA because the city's application of the septic system permit process qualifies as a land use regulation that limits or restricts the center's use of its property.

“By characterizing the flow calculations in a manner which compels state review, the city is forcing GSIC to incur additional expenses and engage in additional expenses associated with that process, delay the full enjoyment of GSIC, and to keep GSIC under its thumb,” Rodriguez wrote.

“Construing the language of RLUIPA broadly, because the sewage regulation at issue is incorporated by reference into the City's Land Use Ordinance, it qualifies as a zoning law. To hold otherwise would put form over function,” the judge wrote.

Rodriguez also denied the defendants' motion to dismiss the equal protection claims, finding that the plaintiffs' contention that they were treated differently than a Christian church was sufficient in alleging an intention to discriminate.

And the motion to dismiss a First Amendment free-exercise claim was denied for the same reason as dismissal of the RLUIPA claim was denied, since RLUIPA has been held to provide greater protection for religious liberty than the First Amendment, Rodriguez wrote.

The judge likewise denied the defendants' motion to dismiss the due process claims, since the complaint sets forth a cognizable claim under the Fourteenth Amendment for failure to provide notice and a hearing before the permit was revoked.

He also denied dismissal of the claim for unlawful taxation because the complaint “sets forth an adequate foundation for improper imposition of taxes against a religious institution.”

The U.S. Department of Justice submitted a statement of interest to the court, arguing that Vineland's application of sewer regulations in the case constituted the imposition of a land use regulation that limits the plaintiff's use of property under the definition of RLUIPA. But the Department of Justice said it took no position on whether the city had violated RLUIPA.

According to the suit, the center received site plan approval in 2011 for a mosque with 61,000 square feet of space on three levels, with a seating capacity for 220 people. Ultimately the mosque that was constructed had only 8,300 square feet on one level. The group was granted a temporary certificate of occupancy for that space, and in 2016 it sought permission to construct a second floor, also consisting of 8,300 square feet. The city claimed that the prior approval of the mosque's septic system design did not encompass the additional second-floor space, which the center is disputing.

The Garden State Islamic Center is represented by Aymen Aboushi of the Aboushi Law Firm in New York. He said in a statement, “It is clear that the City of Vineland treated the Garden State Islamic Center unfairly and in violation of the law. The Federal Court agrees that the Center has stated a claim for unlawful discrimination. We intend to vigorously pursue this matter until such time as the Center is treated fairly, and afforded its rights and religious liberties as guaranteed by the law.” 

William Harla of DeCotiis, Fitzpatrick, Cole & Giblin in Teaneck, who represents the Vineland defendants, said that the judge accepted factual assertions in the complaint as true when deciding the motion to dismiss, but Vineland “does not believe the complaint accurately reflects what happened.” He said the case will proceed to discovery and the city will “deal with it in the normal course.”