Millburn Township will always be home to my family. We moved to Florida in 1999 from Short Hills, but have kept in touch with many close friends and family in Millburn and Short Hills these past 13 years. In 1994, I ran for Millburn Township Committee – as a Democrat. (Running for Township Committee in 1994 as a Democrat truly reflects the love I had for the Township.) I also had the pleasure of practicing law for several years at a firm in Short Hills. While living in first Millburn and then Short Hills, my family never missed a Forth of July celebration or Halloween parade.
It is with profound sadness that I learned this morning (February 14th) that the Millburn Zoning Board denied the Chai Center’s application for a variance very early this morning. Rabbi and Mrs. Bogomilsky became a much welcomed, valuable asset to the Township long before I moved to Florida. Their struggle to establish a Jewish institution within the Township has been made unduly troublesome and difficult, and has become needlessly costly for both the Chai Center and the Township. This is unfortunate.
Part of the charm of Millburn is the way in which houses of worship are peppered throughout the community.
The February 14th ruling forces the Chai Center to look to the Federal Courts for assistance under the law known as The Religious Land Use and Institutionalized Persons Act, or RLUIPA. In very simple terms, this Federal law limits a municipal government’s right to impose land use regulations in a manner that burdens exercise of religion. Since Federal law takes precedent over municipal codes and state law, a court’s ruling applying RLUIPA would be controlling over the Zoning Board. Importantly, under a RLUIPA claim, the courts have the authority to award attorneys fees.
Litigation such as this can have a protracted and expensive life cycle. It may also have the detrimental effect of polarizing a community. For a RLUIPA claim, a Zoning Board’s decision is just the first step setting the stage for further litigation. Residents may not realize this and believe that a Zoning Board’s decision brings with it a sense of finality. Not so with a RLUIPA claim, and the Township attorney is likely keenly aware of this.
As an attorney, I typically take offense to commentary on cases such as “the only ones who win are the lawyers.” However, considering the totality of the facts and applicable law governing this issue, the Chai Center has a real RLUIPA claim. At the end of the day, they may ultimately prevail at much unneeded expense that could be borne by the Township.
I hope that the Township recognizes the February 13th/14th decision for what it truly is, an opportunity to sit with the Chai Center and forge a mutually agreeable resolution. If that does not happen, I have no doubt that there will come a day that this letter will be presented at a Township Committee meeting and someone will ask why this issue was not properly addressed and reasonably settled before things truly got out of control.
Daniel A. Kaskel, Esq.