Chabad Jewish Center can continue to operate in a home on Church Road after a federal judge ruled that Toms River wrongly required the Chabad to acquire a variance to operate in a residential zone.
U.S. District Court Judge Freda L. Wolfson said the township’s Board of Adjustment violated the federal Religious Land Use and Institutionalized Persons Act, the Fair Housing Act, and the U.S. Constitution in barring Rabbi Moshe Gourarie from operating the Chabad without a variance.
“I’d just like to say that our clients are very pleased with the result and look forward to many years of a productive relationship with the community in Toms River,” said Roman P. Storzer, of Storzer & Greene in New York and Washington, D.C., who represents the Chabad Jewish Center.
Wolfson also required Toms River to pay $122,500 to Gourarie, who operates the Chabad in his house. She also dismissed several pending zoning violations that the township had filed against Gourarie.
The judge’s ruling concludes a lengthy dispute that inflamed tensions between some longtime Toms River residents and Gourarie, who began operating the Chabad from his home in 2011.
Gourarie’s lawsuit, filed in March 2016, claimed the Chabad became a target for “anti-Semitic hostility” in spite of its “negligible land use effect on the local community and its existence at this location and another residential home in Toms River for 12 years without negative impacts.”
The suit, citing both state and federal civil rights protections, alleged the center had fallen victim to religious discrimination and arbitrary treatment.
The Religious Land Use Act prohibits governmental entities from implementing land-use regulations that impose “a substantial burden on the religious exercise of a person, including a religious assembly or institution,” unless the government can demonstrate that the regulations further “a compelling government interest.”
Zoning board hearing
More than 1,200 residents packed Toms River High School North in December 2015 for the first Board of Adjustment meeting on the Chabad. At the meeting, the zoning board ruled that Gourarie must seek a use variance to continue operating the Chabad.
During the more than four-hour hearing, residents questioned Gourarie about plans to expand the Chabad; they did not seem to believe his insistence that he would not expand it. They also expressed anger about the fact that the Church Road property was tax exempt.
On several occasions, supporters of the Chabad and audience members opposed to the application shouted and pointed fingers at each other.
Nearly 5,000 people signed an online petition opposing the Chabad application.
Also working against the town: statements and petitions online and in social media referring to ultra-Orthodox Jews and the Chabad’s use as “cockroaches,” “trash,” a “cult,” “he-brews and she-brews,” a “Jewish conspiracy,” “disgusting phonies,” a “joo school,” “damn Jews,” “dirty,” and a “disease.” Those statements and like comments were also part of the court record.
One Toms River resident said about the Chabad’s zoning request: “Keep these damn Jews out of Toms River. … There will be issues if this passes. … I promise.”
The lawsuit also noted comments by Mayor Thomas F. Kelaher in a 2016 interview with Bloomberg News in which the mayor described the aggressive tactics of some real estate solicitors operating in Toms River’s North Dover section as “like an invasion.”
Lakewood Mayor Menashe P. Miller demanded that Kelaher apologize for the comments, which the Toms River mayor insisted had been taken out of context.
Kelaher said that he had been quoting residents of North Dover, who he said referred to the number of real estate agents seeking to buy homes in the area as “an invasion” during a public hearing on a township ordinance aimed at limiting door-to-door real estate soliciting.
He said his words — and the Township Council’s adoption of an ordinance banning real estate soliciting in most of North Dover — were incorrectly labeled as anti-Semitism.
Storzer said the fines the township was ordered to pay will cover legal fees and “other damages suffered by the Chabad.”
Assistant Township Attorney Anthony Merlino noted the fine the township was required to pay will be covered by the Ocean County Joint Insurance Fund, of which Toms River is a member.
“This is a minimal amount when compared to the mid-seven figure judgments in other municipalities in North Jersey, such as Bernardsville and Bedminster, who were ordered to pay millions of dollars in similar litigation,” Merlino wrote in an email.
Merlino noted that current trends in this type of litigation have not been favorable for municipalities. The township has been negotiating with Gourarie to settle the lawsuit for more than a year.
Merlino said continuing to fight the lawsuit could have cost the township much more money, “with a devastating budgetary impact.”
Some limits placed on Chabad
The judge placed some limits on the Chabad’s operations: no more than 35 people will be allowed at the Church Road property for events held there, except for on six holidays — Sukkot, Simchas Torah, Pesach (Passover), Purim, Lag b’omer and Shavuot — when a maximum of 49 people will be permitted there.
No parking will be allowed on Church Road for Chabad events, and any sign placed on the Chabad property must comply with Toms River ordinances.
Gourarie previously operated the Chabad from a home he was renting on New Hampshire Avenue.
In 2011, Gourarie purchased a home on Church Road, where he has testified that he’s operated a Jewish community center and weekly prayer services, which draw about 15 to 20 people. A 2009 revision to the township’s zoning ordinance banned churches in the residential zone that includes Gourarie’s property.
Social media comments
Merlino said “the considerable social media chatter about the issue,” “created a presumption that the proceedings before the zoning board were tainted,” which further complicated the township’s defense of the lawsuit.
“Anyone who made or read those social media posts would have been subject to deposition or subpoena as part of the litigation to determine the extent, if any, they influenced the decisions challenged in this case,” Merlino wrote. “That was also a contributing factor to the judgment against the township.”