Federal Permission
RANDOLPH TWP. – A lawyer for the Chabad Jewish center said the constitutional right to freedom of religion trumps local zoning and state construction code laws.
The center is challenging zoning and construction codes so it can continue to religious services in the home of Rabbi Avraham Bechor on West Hanover Avenue.
Bechor was due to appear before Municipal Court Judge Ira Cohen on Wednesday, Feb. 1, to respond to summonses that had been issued by the township. Bechor did not speak but his new attorney, Ronald S. Heymann, told Judge Ira Cohen that his client intended to take the matter to trial.
Responding to several neighbor complaints of increased traffic and parking problems, Zoning Officer Barrie Krause issued a summons in December stating that Bechor’s home, constructed as a single-family dwelling, violates local zoning because it is being used as a place of assembly.
Construction Code Official Frank Howard said on Feb. 3 that Bechor’s home does not meet state code requirements for places of assembly, as it does not have sufficient firewalls, sprinkler systems, and handicap accessible bathrooms.
“Rabbi Bechor has the right to worship in his own home under the provisions of the (federal) Religious Lane Use and Institutional Persons Act (RULIPA),” said Heymann in an interview on Friday, Feb. 3. “The act prohibits any government from imposing any regulation, including assembly, unless they can demonstrate a compelling governmental interest, and any imposition has to be by the least restrictive method.”
Heymann said RULIPA was enacted in 2000, and there have been several court decisions in other jurisdictions that would favor his client.
Heymann referred to the case of Rabbi Konikov in Orlando, Fla. The 11th Circuit Court decided Konikov’s congregation, which had a schul at another location, could gather for worship at the Rabbi’s home because it was within walking distance of their homes and they had to honor orthodox restrictions against driving a vehicle on holy days.
“There was another case in Somerset involving a minister, with 35 members in his parish, holding church services in his home,” said Heymann. “The Superior Court said the congregation could worship in the minister’s home because Somerset’s ordinance was constitutionally vague.”
In addition to not complying with local and state building regulations, Bechor has been notified by the state Department of Environmental Protection (DEP) that he is in violation of the Freshwater Wetlands Protection Act as well.
The notice from the DEP, dated Jan. 25, was sent by certified mail to Bechor and the builder of his home, S&H Country Builders. It states that 4,200 square-feet of area of a deed restricted modified freshwater wetlands transition area is being used for parking vehicles, and that a copy of the approved deed restriction has not been submitted to the state.
Heymann said he will be meeting with representatives of the DEP to resolve any problems, stating that one of the problems is that motorists sometimes use a portion of the wetlands transition area to turn their vehicles around when coming off nearby Radtke Road.
Township Manager John Lovell said, however, the real problem lies in the parking of vehicles by congregants on the rabbi’s lawn.
DEP representatives could not be reached on Friday and Monday to verify which is correct.
“Parking is an issue,” said Heymann. “They cannot park on West Hanover Avenue because it is unsafe, but they can park on Mount Freedom Avenue.”
In a meeting in early December, township officials agreed that the holding of a “minion” or small religious counseling sessions did not violate regulations. A minion is a group of usually not more than 10 to 12 congregants.
Heymann compared the holding of other religious services to someone who has 25 friends who visit to watch a football game on a fairly regular basis.
“That would be allowed,” said Heymann. “There were three neighbor complaints about services at the Chabad, mostly about parking on nearby roads. The police investigated and verified the cars were parked legally.”
Even if the RULIPA legislation precludes enforcement of local zoning regulations against the Chabad, the issue of fire and safety code violations may remain.
Lovell said the township has been advised by the state that fire and building codes must be followed in order to have a place of assembly that is being used on a regular basis.
Randolph’s construction code official, Frank Howard, agreed with Lovell.
“We’re not concerned with zoning,” Howard said. “Our concern is life safety.”
Howard said S&H Country Builders had originally received local approval, variances, and even a DEP waiver to build a one-family residence on the property. When the home was nearly complete, the builder submitted revised plans that required tearing out the three garage doors that had already been installed, and combining the garage area with an adjacent family room into one, large room that encompassed half the lower floor.
The revised plan, filed in March 2005, states the combined area would be used as a “pool table/game room.” The plans also moved the kitchen from the first to the second floor.
Planning Director Darren Carney said in December that the township had questioned the builder as to the intended use of the property when the modified plan was filed, noting it was unusual for a new single-family home to have a second-floor kitchen and no garage.
In a letter dated July 6, 2005, Heymann advised the zoning officer, “Mr. Saltz is selling this property as a single-family residence which closing is scheduled to take place on Friday, July 8, 2005. The septic system as designed has been approved for a single-family residence. Rabbi Beckhur, his wife, and five children will be residing in this home following the closing.”
Lovell said a question remains of why the township was not informed of Chabad’s intended use of the property before closing.
Bechor and his attorneys planned to again meet with township officials and attorneys on Friday, Feb. 10, in the hope of reaching an agreement that will prevent further litigation. If not, the matter has been scheduled before Cohen at 7 p.m. on Wednesday, Feb. 15.
The center is challenging zoning and construction codes so it can continue to religious services in the home of Rabbi Avraham Bechor on West Hanover Avenue.
Bechor was due to appear before Municipal Court Judge Ira Cohen on Wednesday, Feb. 1, to respond to summonses that had been issued by the township. Bechor did not speak but his new attorney, Ronald S. Heymann, told Judge Ira Cohen that his client intended to take the matter to trial.
Responding to several neighbor complaints of increased traffic and parking problems, Zoning Officer Barrie Krause issued a summons in December stating that Bechor’s home, constructed as a single-family dwelling, violates local zoning because it is being used as a place of assembly.
Construction Code Official Frank Howard said on Feb. 3 that Bechor’s home does not meet state code requirements for places of assembly, as it does not have sufficient firewalls, sprinkler systems, and handicap accessible bathrooms.
“Rabbi Bechor has the right to worship in his own home under the provisions of the (federal) Religious Lane Use and Institutional Persons Act (RULIPA),” said Heymann in an interview on Friday, Feb. 3. “The act prohibits any government from imposing any regulation, including assembly, unless they can demonstrate a compelling governmental interest, and any imposition has to be by the least restrictive method.”
Heymann said RULIPA was enacted in 2000, and there have been several court decisions in other jurisdictions that would favor his client.
Heymann referred to the case of Rabbi Konikov in Orlando, Fla. The 11th Circuit Court decided Konikov’s congregation, which had a schul at another location, could gather for worship at the Rabbi’s home because it was within walking distance of their homes and they had to honor orthodox restrictions against driving a vehicle on holy days.
“There was another case in Somerset involving a minister, with 35 members in his parish, holding church services in his home,” said Heymann. “The Superior Court said the congregation could worship in the minister’s home because Somerset’s ordinance was constitutionally vague.”
In addition to not complying with local and state building regulations, Bechor has been notified by the state Department of Environmental Protection (DEP) that he is in violation of the Freshwater Wetlands Protection Act as well.
The notice from the DEP, dated Jan. 25, was sent by certified mail to Bechor and the builder of his home, S&H Country Builders. It states that 4,200 square-feet of area of a deed restricted modified freshwater wetlands transition area is being used for parking vehicles, and that a copy of the approved deed restriction has not been submitted to the state.
Heymann said he will be meeting with representatives of the DEP to resolve any problems, stating that one of the problems is that motorists sometimes use a portion of the wetlands transition area to turn their vehicles around when coming off nearby Radtke Road.
Township Manager John Lovell said, however, the real problem lies in the parking of vehicles by congregants on the rabbi’s lawn.
DEP representatives could not be reached on Friday and Monday to verify which is correct.
“Parking is an issue,” said Heymann. “They cannot park on West Hanover Avenue because it is unsafe, but they can park on Mount Freedom Avenue.”
In a meeting in early December, township officials agreed that the holding of a “minion” or small religious counseling sessions did not violate regulations. A minion is a group of usually not more than 10 to 12 congregants.
Heymann compared the holding of other religious services to someone who has 25 friends who visit to watch a football game on a fairly regular basis.
“That would be allowed,” said Heymann. “There were three neighbor complaints about services at the Chabad, mostly about parking on nearby roads. The police investigated and verified the cars were parked legally.”
Even if the RULIPA legislation precludes enforcement of local zoning regulations against the Chabad, the issue of fire and safety code violations may remain.
Lovell said the township has been advised by the state that fire and building codes must be followed in order to have a place of assembly that is being used on a regular basis.
Randolph’s construction code official, Frank Howard, agreed with Lovell.
“We’re not concerned with zoning,” Howard said. “Our concern is life safety.”
Howard said S&H Country Builders had originally received local approval, variances, and even a DEP waiver to build a one-family residence on the property. When the home was nearly complete, the builder submitted revised plans that required tearing out the three garage doors that had already been installed, and combining the garage area with an adjacent family room into one, large room that encompassed half the lower floor.
The revised plan, filed in March 2005, states the combined area would be used as a “pool table/game room.” The plans also moved the kitchen from the first to the second floor.
Planning Director Darren Carney said in December that the township had questioned the builder as to the intended use of the property when the modified plan was filed, noting it was unusual for a new single-family home to have a second-floor kitchen and no garage.
In a letter dated July 6, 2005, Heymann advised the zoning officer, “Mr. Saltz is selling this property as a single-family residence which closing is scheduled to take place on Friday, July 8, 2005. The septic system as designed has been approved for a single-family residence. Rabbi Beckhur, his wife, and five children will be residing in this home following the closing.”
Lovell said a question remains of why the township was not informed of Chabad’s intended use of the property before closing.
Bechor and his attorneys planned to again meet with township officials and attorneys on Friday, Feb. 10, in the hope of reaching an agreement that will prevent further litigation. If not, the matter has been scheduled before Cohen at 7 p.m. on Wednesday, Feb. 15.
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