Friends of Lubavitch v. Balt. Cnty.

• Citation: 421 F.Supp.3d 146
• Decision Date: 30 September 2019
• Docket Number: Civil Action No. GLR-18-3943
• Parties: FRIENDS OF LUBAVITCH, et al., Plaintiffs, v. BALTIMORE COUNTY, MARYLAND, et al., Defendants.
• Court: U.S. District Court — District of Maryland

421 F.Supp.3d 146

FRIENDS OF LUBAVITCH, et al., Plaintiffs,

v.BALTIMORE COUNTY, MARYLAND, et al., Defendants.

Civil Action No. GLR-18-3943

United States District Court, D. Maryland.

Signed September 30, 2019

Nathan Lewin, Lewin & Lewin, LLP, Washington, DC, for Plaintiffs.

James Reginald Benjamin, Jr, James J. Nolan, Jr, Baltimore County Office of Law, Jennifer Ryan Lazenby, Whiteford Taylor and Preston LLP, Towson, MD, Peter Woodward Sheehan Nelson Mullins Riley & Scarborough LLP, Aaron L. Casagrande, Harry S. Johnson, Howard Ross Feldman, Ioana Kastellorizios, Whiteford, Taylor & Preston LLP, Kevin M. Cox, Office of the Attorney General, Baltimore, MD, for Defendants.

MEMORANDUM OPINION

George L. Russell, III, United States District Judge

THIS MATTER is before the Court on Defendants Baltimore County, Maryland, Baltimore County Department of Planning ("Department of Planning"), and Baltimore County Board of Appeals's (the "Board of Appeals") (collectively, the "County") Motion to Dismiss (ECF No. 15) and Defendant Circuit Court for Baltimore County's (the "Circuit Court") Motion to Dismiss (ECF No. 20). The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the following reasons, the Court will grant the Motions.

I. BACKGROUND¹

Plaintiff Friends of Lubavitch, Inc. ("FoL") is a religious corporation that was formed to support the global Orthodox Jewish Chabad-Lubavitch movement in Maryland and which has helped establish Chabad centers, a rabbinical school, and a primary school. (Compl. ¶¶ 3, 23, ECF No. 1). Plaintiffs Rabbi Menachem Rivkin ("Rabbi Rivkin") and Sheina Rivkin (collectively, the "Rivkins") have administered one of those centers, the Towson Chabad House (the "Chabad House"), which has served Orthodox Jewish students or alumni of the nearby Towson University and Goucher College in Baltimore County, Maryland, including the eight other Individual Plaintiffs.² (Id. ¶¶ 4–13, 19). There are more than fifty such Chabad Houses in the United States, many of which serve as residences to their rabbis or schluchim, and many are zoned as residences or the local equivalent. (Id. ¶ 24).

In September 2008, FoL purchased the property at 14 Aigburth Road in Towson, Maryland (the "Property"), on which sat a 2,200-square-foot residence, intending to use it as a Chabad House, which would "provide Jewish religious hospitality and education" to local college students and residents. (Id. ¶¶ 18, 21). FoL picked the Property because it is approximately 1.7 miles from Goucher College and 700 feet from Towson University; Orthodox Jews cannot travel by automobile on the Sabbath, and the nearest Orthodox Jewish synagogue is 7.1 miles from the Property. (Id. ¶ 19). Beginning in 2008, the Rivkins posted a sign identifying the Property as the Chabad House and hosted students for kosher meals, prayer, and Jewish holidays. (Id. ¶¶ 25, 27). Within a few years, the popularity of the Chabad House increased such that FoL and the Rivkins decided to expand the building on the Property. (Id. ¶ 29).

In December 2011, Rabbi Rivkin met with several Baltimore County officials about the contemplated expansion (the "Expansion") of the Chabad House. (Id. ¶ 31). They told him to consult with his neighbors, which he did. (Id. ). In or about May 2014, FoL and Rabbi Rivkin obtained financing for the Expansion. (Id. ¶ 32). Thereafter, Rabbi Rivkin consulted with Baltimore County's Director of Permits, Approvals, and Inspections Arnold Jablon, who told Rabbi Rivkin that he would grant a building permit for the Expansion if the Chabad House qualified under local zoning laws as a synagogue. (Id. ). Even though FoL and the Rivkins did not intend to build a synagogue, in anticipation of the issuance of a building permit, FoL and the Rivkins held a public ground-breaking in June 2014. (Id. ¶¶ 34–35).

At some point thereafter, neighbors and other Towson residents opposed the Expansion, which would at least triple the building square footage on the Property. (Id. ¶ 36; Defs.' Mot. Dismiss Ex. C ["Court of Special Appeals Opinion"] at 1, 8, ECF No. 15-5). When Rabbi Rivkin sought to meet with Jablon in October 2014, Jablon refused. (Id. ¶ 37). In an effort to address neighbors' concerns, Rabbi Rivkin offered to reduce the height of the proposed Expansion and to make the front of the building appear more "residential." (Id. ¶ 38). Rabbi Rivkin made no formal request that the building on the Property qualify as a synagogue. (Id. ).

On January 29, 2015, the County issued a "Code Enforcement Correction Notice" (the "Notice") against the Chabad House, alleging that: (1) it was "an illegal House of Worship/ Religious Institution" that did not meet "the [residential transit area] requirements, the parking requirements and the Non Residential Principle Setback requirements" of the Baltimore County Zoning Regulations ("BCZR"); and (2) it was "a Community Building" that failed to have a "Special Exception Hearing." (Id. ¶ 39). Under the BCZR, "buildings for religious worship or other religious institutions" are permitted as a matter of right, whereas "community buildings" are only permitted by "special exception." BCZR §§ 1B01.1.A.3, C.4 (2019). The Notice was converted into a citation (the "Citation") on March 2, 2015. (Compl. ¶ 39). Jablon told Rabbi Rivkin and his attorney that they should request a hearing under BCZR § 500.7, which they then did. (Id. ¶ 42). Specifically, FoL petitioned for a special hearing "to confirm continued use of the subject property as a residential parsonage with an accessory use for religious worship and religious education." (Court of Special Appeals Opinion at 6).³ Administrative Law Judge John Beverungen ("ALJ Beverungen") presided over the hearing on June 19 and 25, 2015. (Compl. ¶ 42). At the hearing, Department of Planning Director Andrea Van Arsdale recommended the denial of FoL's petition because "it was operating a ‘community building,’ which would require a special exception." (Id. ¶ 43). On June 26, 2015, ALJ Beverungen ruled the Chabad House was not "a residential parsonage" because it was not attached to a house of worship and denied FoL's Petition. (Id. ¶ 45).⁴ On August 10, 2015, ALJ Beverungen denied Rabbi Rivkin's motion for reconsideration, noting that he had "no authority to insist that the Code Enforcement Bureau rescind a citation or correction notice issued by one of its inspectors." (Id. ). FoL did not appeal. (Defs.' Reply Ex. H ("Board of Appeals Decision") at 2, ECF No. 30-1).

On August 20, 2015, Rabbi Rivkin, through a letter from his attorney, asked the County "what specific objection(s) the County has to Rabbi and Mrs. Rivkin's submitting their building plans for review, comment and approval" so they could proceed with the Expansion. (Compl. ¶ 46). Jablon told Rabbi Rivkin that he would not permit the Expansion unless Rabbi Rivkin submitted another petition for a Section 500.7 hearing, which Rabbi Rivkin then did on behalf of FoL.⁵ (Id. ¶ 47). "The neighbors began filing complaints with County Code Enforcement. Citations were issued but went nowhere." Board of Appeals Decision at 3. The neighbors then filed their own petition, 16-308-SPH. Id. On March 31, 2016, ALJ Beverungen presided over a second hearing regarding the petitions, where Jablon and Van Arsdale opposed FoL's second petition because the Expansion would not "be solely for ‘additional living space for the family who resides therein’ " because the Rivkins also hosted meals for local Orthodox Jews at the Chabad House. (Compl. ¶ 49). Nevertheless, on April 6, 2016, ALJ Beverungen dismissed the neighbors' petition as premature and approved Rabbi Rivkin's application for the Expansion. (Id. ¶ 51; Court of Special Appeals Opinion at 7–8; Board of Appeals Decision at 4).⁶ On April 19, 2016, Rabbi Rivkin received a building permit for the Expansion, a 6,600-square-foot structure, and construction began on June 6, 2016. (Compl. ¶ 52; Court of Special Appeals Opinion at 8, 10).

On July 27, 2016, Rabbi Rivkin learned from a neighbor that a covenant (the "Covenant"), created in 1950 by the Property's deed, provided that its dwelling "shall have a setback equal to one-half of the total setbacks of the two houses erected on the lots adjoining to the East and West thereof, measured to the centre of said houses, exclusive of porches." (Compl. ¶ 53). Because halting construction and revising the plan for the Expansion would be very expensive, "construction continued pursuant to the building permit." (Id. ¶ 54).

On August 12, 2016, Robin Zoll, the Rivkins' next-door neighbor who had informed them of the Covenant, and the Aigburth Manor Association of Towson, Inc. ("the Neighbor Plaintiffs") sued FoL in the Circuit Court for Baltimore County to enforce the Covenant with respect to the Expansion. (Id. ¶ 56); see Zoll v. Friends of Lubavitch, Inc., No. 03-C-16-008420 (Cir. Ct. Balt. Cty. filed Aug. 12, 2016), http://casesearch.courts.state.md.us/casesearch/. On March 30 and 31, 2017, Circuit Court Judge Susan Souder presided over a bench trial regarding the Zoll lawsuit. (Compl. ¶ 57). Souder heard testimony regarding the community objection to the Expansion beginning in 2012 when it was first proposed, as well as about the Covenant. (Id. ¶ 58). On April 7, 2017, Judge Souder ruled that the Covenant applied and ordered the "removal" of the Expansion insofar as it violated the Covenant. (Id. ). FoL appealed. (See Id. ¶ 61).

Meanwhile, on October 27, 2016, the Board of Appeals began a de novo hearing on FoL's second petition (16-170-SPH) and the neighbors' petition (16-308-SPH). (Board of Appeals Decision at 4–5). The hearing was scheduled to continue on January 12, 2017, and on January 11, 2017, FoL dismissed its petition, and its counsel withdrew. (Id. at 5). Rabbi Rivkin did not appear to testify again, instead delivering a letter to the Board of Appeals in February 2017 that threatened a claim under the Religious Land...