Farhi v. Commissioners of Borough of Deal
| Decision Date | 19 July 1985 |
| Citation | 204 N.J.Super. 575,499 A.2d 559 |
| Parties | Isaac FARHI, Plaintiff, v. The COMMISSIONERS OF the BOROUGH OF DEAL; the Deal Town Clerk; the Borough of Deal; A Municipal Corporation, and the Board of Adjustment of the Borough of Deal, Defendants. |
| Court | New Jersey Superior Court |
Richard B. Ansell, Oakhurst, for plaintiff (Anschelewitz, Barr & Ansell, Oakhurst, attorneys).
Richard H. Mills, Asbury Park, for defendants (Lautman, Henderson & Mills, Asbury Park, attorneys).
This Court must resolve whether our State Constitution is violated when a municipal zoning ordinance, which excludes houses of worship, is enforced to prevent the gathering of religious worshipers in a private residence. The matter arises by verified complaint in lieu of prerogative writs with an order to show cause seeking temporary restraints. R. 4:69-1 et seq. Defendant municipal bodies were enjoined from issuing any summons or from otherwise prosecuting plaintiff or his invitees for assembling or praying at plaintiff's home pending final disposition of this matter. R. 4:69-3.
At a plenary hearing two witnesses, plaintiff and a municipal planning expert, testified on behalf of plaintiff. Another planning expert testified on behalf of defendants. The court also sat in appellate review of the record below which had been developed before both defendant municipal bodies. R. 4:69-1 et seq.
The material facts are not in dispute. Plaintiff Isaac Farhi is the record owner of a single-family dwelling at 258 Norwood Avenue, in the Borough of Deal, New Jersey. The home is a multi-level structure situated upon approximately one-quarter of an acre. Plaintiff's home contains a large living room, dining room, foyer, den and kitchen on the first floor and several bedrooms upstairs. A detached garage with a finished lot is also on the property. Plaintiff resides in his home with his wife and four children.
Plaintiff is a self-described educator employed at a local religious school and is a rabbi of the Sephardic Jewish faith. He asserts that functioning as a rabbi is secondary to that of his primary calling, a teacher. The religious principles of his faith require that its male adherents assemble for a brief daily prayer session as well as for regular Sabbath and Holy Day services. A quorum of ten participants is required to conduct these daily religious services. A synagogue is available for use by members of the sect, but is located approximately one mile to the north of Rabbi Farhi's home. This is quite significant because on the Sabbath and Holy Days, the faithful are precluded from the operation of any mechanical device. Members of the sect are therefore prohibited from driving an automobile to transport themselves to Sabbath or Holy Day religious services. In addition, a significant number of elderly congregants reside within a one-mile radius of Rabbi Farhi's residence. Since the precepts of their faith as well as their own bodily limitations place restrictions on the distances these congregants may travel to attend religious services, Rabbi Farhi has permitted the use of his own home as a gathering place for the performance of such services since June 1983.
Rabbi Farhi did not apply to either defendant municipal body for a use variance before permitting religious services in his home. Only after a town official issued him a municipal summons was an application made to the Deal Board of Adjustment for a use variance. That variance application was denied by the board on March 1, 1984. The appeal by Rabbi Farhi to the board of commissioners was denied on July 24, 1984. N.J.S.A. 40:55D-17.
It is evident that Rabbi Farhi has converted a portion of the main floor of his home for a specific use during these religious services. A room has been outfitted with much of the accouterments of a synagogue including a tabernacle, a Torah, a podium and several chairs. The Farhi home has even been identified in certain religious publications and by members of the religious community as the "Synagogue of South Deal." On any given Sabbath or Holy Day, there are between 15 and 25 congregants in the Farhi home, all of whom must arrive on foot. The daily prayer gatherings are not as well attended with most congregants arriving on foot but several arriving by car. On two occasions there were large assemblages, but such experience has apparently not reoccurred.
Defendants contend that the use by Rabbi Farhi of his home in this manner is a violation of both the 1967 and 1984 zoning ordinance which restricts the use of the property to a residential use; that the board of adjustment correctly interpreted both zoning ordinances in requiring that plaintiff seek a use variance; that the board of adjustment's determination that plaintiff was not entitled to a use variance was neither arbitrary nor capricious; that the board of commissioners' affirmance of the denial by the board of adjustment of Rabbi Farhi's use variance application was also neither arbitrary nor capricious; that plaintiff failed to establish a valid nonconforming use, and that defendants' acts are not violative of plaintiff's right to freely exercise his religious beliefs as guaranteed by the State and Federal Constitutions.
Plaintiff contends that both the 1967 and 1984 zoning ordinances are unconstitutional because they violate his right to freely exercise his religious beliefs as guaranteed by the State and Federal Constitutions; that both ordinances represent an improper exercise of police power; that assuming a variance was necessary, it should have been granted because the use inherently serves the public welfare and any negative criteria are overcome, and that the actions of defendants in denying the application were arbitrary and capricious since plaintiff's worship activities are an explicit, valid use, as well as one permitted in a residential zone.
The municipal ordinance in effect at the time this action was commenced was adopted in 1967. Under that ordinance plaintiff's home was located in district six. That zone limited the principal use of plaintiff's property to a residence.
18-6.2 Districts 2 to 7 inclusive and 9 and 11 Use Regulations. Within districts numbers 2 to 7 inclusive and 9 and 11, no business or profession of any kind shall be conducted or carried on and no building on premises shall be used for other than one of the following purposes:
a. A dwelling for one family or for one private, noncommercial housekeeping unit.
b. One greenhouse, not operated for profit and in which there is no display of products other than in growth, may be built or used on a plot as an accessory use to a one-family dwelling erected on the same plot. [Borough of Deal Ordinance § 18-6.2 (1967), emphasis supplied].
It is significant to note that the 1967 ordinance does not provide for the use of a church within any district of the Borough of Deal. The only way a church might exist in the borough is if it were constructed prior to December 28, 1922, the latest date from which a nonconforming use would be permitted. That ordinance stated:
18-4 Existing Nonconforming Buildings.
Except as hereinafter provided, no building or premises shall be used except in conformity with the provisions of this chapter which apply to the district in which it is located. However, any nonconforming use existing on December 28, 1922 may be continued, provided that the building or premises involved shall neither be altered nor enlarged unless the use shall be changed to a use permitted in the district. No nonconforming use, if once changed to a use permitted in the district in which it is located, shall ever be changed back to a nonconforming use. Nothing in this chapter shall prevent the restoration of a building destroyed less than 50% of its value, exclusive of the foundations, by fire, explosion, act of God, or act of the public enemy, subsequent to December 28, 1922 or shall prevent the continuance of the use of such building or part thereof as such use existed at the time of such destruction of such building or part thereof. Nothing in this chapter shall prevent the restoration of a wall declared unsafe by the building inspector. [Id. at § 18-4]
During the course of this litigation the 1967 zoning ordinance was amended. On January 5, 1984, the borough adopted a revised ordinance which places plaintiff's property within a newly created R-2 district, one of four such residential zones. Churches are still excluded except as a permitted conditional use in the R-4 district:
18-69. Regulations for R-1, R-2, R-3 and R-4 Residential Districts.
a. Purpose. The purpose of the R-1, R-2 and R-3 Districts is to recognize and preserve the existing pattern of detached dwellings. The purpose of the R-4 District is to recognize and preserve the existing pattern of small lot housing. The concepts of these residential districts is to allow the borough to provide a variety of housing responsive to market needs.
b. Principal uses.
(a) Single family dwellings in accordance with the standards set forth below:
* * *
* * *
d. Conditional uses.
* * *
* * *
(a) None.
(a) Churches or other places of worship. [Borough of Deal Ordinance § 18-69 (1984); emphasis supplied].
Our Supreme Court recently held both the New Jersey and the United States Constitutions preclude as impermissibly vague "a municipal zoning ordinance that excludes 'churches and similar places of worship' from a residential use district." State v. Cameron, 100 N.J. 586, 589, 498 A.2d 1217 (1985). The Cameron majority reasoned that the ordinance was constitutionally vague and unenforceable because it was "applied to prohibit a minister from temporarily using his home to hold a one-hour religious service each week for his congregation." Ibid....
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