Bernards Township, NJ. Wikimedia
Bernards Township, NJ. Wikimedia ()

Bernards Township has agreed to pay $3.25 million to settle litigation over its denial of an application to build a mosque.

On Monday the group made public the settlement terms in two separate suits filed under the Religious Land Use and Institutionalized Persons Act, one by the Islamic Society of Basking Ridge Inc. and the other by the U.S. Department of Justice. Both suits stem from the town planning board’s December 2015 decision denying a land use application by the Islamic Society for construction of a mosque.

The settlement with the Islamic Society of Basking Ridge is contingent on the town’s approval of the Muslim group’s plan for a mosque on a four-acre site. The terms also called for the town to pay $1.5 million to the Islamic Society and another $1.75 million for its legal fees and costs. Also under those terms, the town agreed to the appointment of former U.S. District Judge Joel Pisano, now with Walsh Pizzi O’Reilly Falanga in Newark, as a special master to resolve disputes over remaining regulatory approvals for the mosque project.

Also under the town’s settlement with the Islamic Society, Bernards Township agrees to hold a hearing where local residents can hear details of the settlement and make comments. Under terms of the settlement, “no commentary regarding Islam or Muslims will be permitted” at the hearing, the agreement states.

The settlement with the Department of Justice bars Bernards Township from implementing land use regulations in a manner that imposes a substantial burden on the exercise of religion, unless it can demonstrate that imposition of that burden imposes a compelling government interest and is accomplished in the least restrictive means possible. The Justice Department settlement also said Bernards Township could not treat a land use application from a religious institution differently from a nonreligious applicant and could not impose a different standard on a mosque than it did for a church or synagogue.

The DOJ settlement also calls for all members of the planning board, zoning board and township council and all building department employees, other than secretarial staff, to undergo training concerning the RLUIPA and to sign statements saying they understand the law and are aware that violations may result in legal action.

The Islamic Society of Basking Ridge sued Bernards Township in March 2016, and the Department of Justice filed its lawsuit in November 2016. A major point of dispute in the case was the number of parking spaces needed by the mosque—the township said 107 spaces were needed for a mosque that was designed to accommodate 150 worshipers, but the plaintiffs argued that the mosque was held to a different standard than other religious institutions. U.S. District Judge Michael Shipp ruled in favor of the Islamic Society of Basking Ridge on the parking dispute in December 2016. The town’s planning board denied approval in December 2015 after 39 public hearings that were marked by hostile comments from residents opposing the mosque.

A public relations consultant for Bernards Township, Michael Turner, issued a statement defending the town’s actions, saying the application denial was “based on legitimate land use and safety concerns, which plaintiffs refused to address.” The statement said the town disagrees with Shipp’s December 2016 decision on parking. The judge “focused on semantics rather than the specific needs of the institution,” the town’s statement said.

The statement from Bernards Township said the $3.25 million settlement would be paid by insurance, except for a deductible whose amount was not disclosed. Its decision to settle was motivated by the fee-shifting provision of the RLUIPA, the possibility that the plaintiff’s fees would exceed insurance coverage and the chance that coverage would be denied.

“With Judge Shipp as the presiding judge, and his honor’s decision on parking as well as his prior ruling on similar matters, the township believes settlement was the best option,” the Bernards Township statement said.

Bernards Township was represented by Hiram Carey of Robinson & Cole in Boston, who did not return a call requesting comment.

Acting U.S. Attorney William Fitzpatrick of the District of New Jersey said in a statement that the settlement would help ensure religious land use applicants get equal treatment.

“Bernards Township made decisions that treated the Islamic Society of Basking Ridge differently than other houses of worship,” Fitzpatrick said. “The settlement announced today corrects those decisions and ensures that members of this religious community have the same ability to practice their faith as all other religions.”

The Department of Justice was represented by assistant U.S. attorneys Michael Campion and Kelly Horan Florio and trial attorney Beth Pepper.

Adeel Mangi of Patterson Belknap Webb & Tyler, lead counsel for the Islamic Society of Basking Ridge, said in a statement, “Municipalities around the country should pay close attention to what happened in Bernards Township. The American Muslim community has the legal resources, the allies and the determination to stand up for its constitutional rights in court and will do so.”

Patterson Belknap will donate the attorney fees it recovers to charity, Mangi’s statement said. He was joined on the case by the firm’s Michael Buchanan and Muhammad Faridi.

The $3.25 million settlement by Bernards Township is less than the $5 million payment that nearby Bridgewater agreed to pay in 2014 to end another RLUIPA suit over a mosque that was denied approval. Also in the Bridgewater case, the settlement called for the township to purchase a parcel of land for $2.5 million for construction of the plaintiffs’ mosque, instead of the site the plaintiffs originally proposed. Shipp, who also presided over the Bridgewater mosque case, decided that case in favor of the plaintiffs in 2013. The township appealed the ruling to the U.S. Court of Appeals for the Third Circuit but dropped its appeal when it settled with the plaintiffs in 2014.

Land use applications involving mosques continue to be a hot-button subject in New Jersey, where the City of Bayonne was named in a May 25 RLUIPA suit in federal court by a Muslim group whose application to turn a dilapidated former warehouse into a mosque was denied.

The plaintiffs in the Bayonne case, a group called Bayonne Muslims and two individuals, are also represented by Patterson Belknap.