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A federal appeals court panel has unanimously ruled that an ordinance of a Florida town prohibiting churches and synagogues from locating in its downtown business district — where private clubs are allowed — violates the federal Religious Land Use and Institutionalized Persons Act. The 11th U.S. Circuit Court of Appeals issued the ruling this week, reversing a magistrate’s summary judgment in favor of the town of Surfside, which is located north of Miami Beach. The case is Midrash Sephardi Inc. v. Town of Surfside. “The Surfside zoning ordinance’s definition of private club comports with a natural and ordinary understanding of ‘assembly’ as a group gathered for a common purpose,” said Judge Charles R. Wilson, writing for a three-judge panel of the 11th Circuit. The case pitted Surfside’s interest in preserving its zoning code against the desire of two Jewish synagogues, Young Israel and Midrash Sephardi, to locate their facilities in the downtown business district. When the suit was filed in 1999, the two synagogues had facilities about one block from the downtown district. The synagogues made First Amendment claims to religious freedom, as well as claims that the town’s zoning code violated the Florida Religious Freedom Restoration Act of 1998 and the federal Religious Land Use and Institutionalized Persons Act, passed by Congress in 2000. Orthodox and ultraorthodox synagogues like Midrash Sephardi and Young Israel prefer to locate within walking distance of the homes of their members because orthodox Jewish tradition bars driving on Sabbath and the Jewish high holidays. The case spawned three federal lawsuits and an eviction action in Miami-Dade Circuit Court by a bank that has leased space to one of the synagogues. Attorneys for Young Israel of Bal Harbour and Midrash Sephardi could not be reached for comment. Steven Ginsburg, the lawyer for the town of Surfside and a partner at Adorno & Yoss in Miami, said the ruling disappoints him and that the town is considering an appeal. “The whole reason this has come this far is that these people from Bal Harbour and Bay Harbor Islands don’t want to walk an extra block,” Ginsburg said. But if Surfside does not appeal the ruling, all it will have to do to keep houses of worship out of the business district is amend its zoning code to also prohibit private, nonsecular clubs — of which there currently are none in the district, Ginsburg said. That is under consideration. The Surfside litigation began in 1999 before the federal RLUIP Act became law. Initially, the suit was filed under the Florida Religious Freedom Restoration Act of 1998, which allows governments to substantially burden the free exercise of religion if necessary to serve a compelling government interest. The Surfside City Commission even had penalties for violating the ordinance: $500 fines or 60 days in jail. U.S. Magistrate Stephen Brown, who sits in Miami, allowed the plaintiffs to amend their complaint to use the federal law. U.S. Assistant Attorney General Alexander Acosta filed a brief in the case supporting the synagogues. He did not return calls for comment. Ginsburg said Surfside, population 4,909, fought to keep the religious facilities outside its two-block business district for economic reasons. “You can’t discriminate against religions, so if we let one religion open its doors in a two-block business district, you can’t deny others, which means you can completely destroy your economic base because you’re going to have a variety of noncommercial interests in a limited area,” he said. “Religious organizations are zoned one block away,” he added, “so you don’t sacrifice the needs of many for the preference of a few.” In July 2000, Magistrate Brown ruled that Surfside was allowed to prohibit churches and synagogues from locating in its central business district even though it allowed private clubs to do so because houses of worship are different. They don’t generate business, and their changing schedules can conflict with business interests. On appeal, the 11th Circuit panel rejected the plaintiffs’ claim that the Surfside zoning ordinance violates constitutional equal protection provisions since the congregants can attend services just one block from Surfside’s business district, where houses of worship are allowed. But the panel found that under the federal statute, the town could not prohibit the synagogues from locating in the business district. “Like churches and synagogues, private clubs are places in which groups or individuals dedicated to similar purposes — whether social, educational, recreational, or otherwise — can meet together to pursue their interests,” Judge Wilson wrote. “We conclude therefore that churches and synagogues, as well as private clubs and lodges, fall within the natural perimeter of ‘assembly or institution.’”

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