of Buildings refuse to grant such a certificate.
As to building permits, as distinguished from certificates of occupancy, Section 801 provides that "in no case shall a building permit be issued for the . . . alteration of any structure . . . until the proposed . . . alteration conforms to the provisions of this ordinance."
The defendants have taken the position in this case that the alterations sought in New Jersey Witnesses' March and June applications do not conform to the provisions of the ordinance because it was intended to put them to a use not permitted under the ordinance. This position was taken even though the very same alterations would be permitted if it were intended to continue the Stanley Theater's use as a commercial theater and convention hall.
In any event, defendants have taken the unambiguous position that the Stanley Theater as plaintiffs propose to use it is a house of worship and thus forbidden in the C-1 zone.
Plaintiffs advance the argument, which is not totally implausible, that the proposed use of the Stanley Theater does not convert it into a house of worship as defined by the Zoning Ordinance. Houses of worship are permitted in residential zones. They are defined as buildings for the assembly of members of a designated faith for religious instruction and worship of a deity. The definition contains examples, namely, a church, synagogue or temple. These examples suggest the kinds of structures which would be deemed houses of worship, each of which would be compatible with nearby residential use. A structure such as the Stanley Theater is not like the typical church, synagogue or temple. It would hardly be compatible with the neighboring residential use. If one were to accept defendants' interpretation of the ordinance, that the Stanley Theater as plaintiffs propose to use it is a house of worship, one might conclude that the Zoning Ordinance would permit a building having a 4,000-person capacity to be erected in any of Jersey City's residential zones.
While present building regulations might prevent the construction of a Stanley Theater in residential districts, the defendants point to other structures of a different design which have been built in residential districts and which can accommodate thousands of persons in convention-like conclaves.
While the defendants' interpretation of the ordinance seems eminently reasonable, plaintiffs' contentions raise the possibility at least that defendants' interpretation may not be the last word on the subject. That being the case, it might well be that a Pullman abstention will be in order before proceeding to a final hearing.
In the present posture of the case, however, I do not think Pullman abstention is justified. Plaintiffs seek very limited injunctive relief, namely, the issuance of permits to enable them to effect repairs and maintenance required to eliminate safety hazards and to preserve from deterioration and possible total loss a facility which they need to carry on various of their religious activities. Similar constitutional issues will have to be faced whether the Zoning Ordinance is interpreted to forbid plaintiffs' use of the building because it is a house of worship or whether the Zoning Ordinance is interpreted to forbid plaintiffs' use of the building not because it is a house of worship but because plaintiffs' use is of a religious nature.
Of course, if the municipal body or a State Court should conclude that the theater as used by the plaintiffs is not a house of worship and that plaintiffs may use it as they propose, the constitutional issues will be moot. However, if, in the meantime, plaintiffs' religious liberties are being infringed, this Court would have the obligation to provide protection pending a decision by the Board of Adjustment or the New Jersey Courts. New Jersey-Philadelphia, Presbytery Bible, Etc., v. New Jersey State Board, 654 F.2d 868, 885-886 (3d Cir. 1981).
When passing upon an application for preliminary injunctive relief a court must consider (i) the probability of the moving party ultimately prevailing on the merits, (ii) the likelihood of irreparable injury absent such relief, (iii) the harm to the non-moving party and third parties if relief were granted and, (iv) if relevant, the possibility of harm to the public, e.g., Delaware River Port Authority v. Transamerica Trailer Transport, Inc., 501 F.2d 917 (3d Cir. 1974).
The last three factors require only limited discussion. Plaintiffs are threatened with irreparable injury if the requested relief is denied. High in the pantheon of civil rights guaranteed by the United States Constitution is the right to be free of laws prohibiting the free exercise of religion or abridging freedom of speech. The degree of protection to which these rights are protected is spelled out in detail in Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). Here plaintiffs seek to practice, teach and proclaim their religious beliefs using a facility they consider to be well adapted to that purpose. The zoning Ordinance, as implemented by municipal officials, prohibits them from doing so. Absent a compelling state interest in this particular land use regulation, plaintiffs would be unlawfully deprived of an important liberty interest, a deprivation which constitutes irreparable injury.
Granting the limited relief plaintiffs now seek would in no way harm the defendants. Were the New Jersey Witnesses allowed to effect the intermediate electrical and plumbing repairs and improvements sought in the June applications, neither defendants nor third parties would be harmed in any way. The repairs and improvements do not convert the building itself to a non-conforming use. It remains a theater capable of use as a theater. The only differences are that deteriorated and dangerous equipment and materials are replaced with new conforming and safe equipment and materials, and additional electrical capabilities and plumbing fixtures will be installed. The risk lies with plaintiffs in that if they are wrong in their legal conclusions, they may never be permitted to use the theater for religious purposes and their expenditures for repairs may have been for naught.
Insofar as third parties and the public are concerned, it is in their interest that the repairs and renovations be made as soon as possible. The existing hazards are a continuing danger to the public and their removal would remove a threat to property and person.
Disposition of plaintiffs' application for preliminary injunctive relief must turn, therefore, on a consideration of plaintiffs' likelihood of succeeding on the merits.
Jehovah's Witnesses' practice of gathering in large groups for religious instruction and worship is in performance of their religious beliefs. This practice is protected by the First Amendment's free exercise clause made applicable to the states by the 14th Amendment. Indisputably, application of Jersey City's Zoning Ordinance prevents plaintiffs from freely exercising their religious beliefs. It is equally indisputable that not every governmental interference with religious practices is unconstitutional.
The permissible bounds of municipal zoning ordinances are set forth in Schad v. Mt. Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981). The Court stated:
"Where property interests are adversely affected by zoning, the courts generally have emphasized the breadth of municipal power to control land use and have sustained the regulation if it is rationally related to legitimate state concerns and does not deprive the owner of economically viable use of his property." At page 68.
However, the present case does not involve property interests. It involves important First Amendment rights. As to such rights the Supreme Court ruled:
". . . when a zoning law infringes upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial government interest." At page 68.
In such a case "the Court must not only assess the substantiality of the governmental interests asserted but also determine whether those interests could be served by means that would be less intrusive on activity protected by the First Amendment." Ibid at page 70.
Applying these criteria here, I conclude that plaintiffs are likely to establish at a final hearing that Jersey City's interpretation and application of its Zoning Ordinance unconstitutionally infringes plaintiffs' religious liberty interests in that such enforcement is not rationally related to legitimate state concerns and does not serve a substantial governmental interest.
There may well be circumstances in which a compelling public interest would justify prohibiting church construction in a particular zone. Perhaps such use would be incompatible with residential use in some situations, Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc., v. City of Lakewood, 699 F.2d 303 (6th Cir. 1983), but see Diocese of Rochester v. Planning Board, 1 N.Y. 2d 508, 136 N.E. 2d 827, 154 N.Y.S. 2d 849 (1956) Perhaps the danger to worshipers would be so great in a heavy industry zone that there would be a compelling state interest in preventing construction of houses of worship there. However, in the present case there is no factor of zoning significance which justifies prohibiting plaintiffs' proposed use of the Stanley Theater. The proposed physical appearance and physical structure of the theater is permitted by existing ordinance. Every use contemplated by plaintiffs is a use which the Zoning Ordinance would permit a commercial enterprise to engage in. The goal of Jersey City's master plan is to draw people from a wide area to the Journal Square area using the existing transportation facilities and providing customers for local merchants and other businesses. Plaintiffs' proposed use of the theater contributes to this goal. Not only persons from Jersey City but also people from surrounding areas would be drawn to the facility. They would undoubtedly make use of public transportation which serves Journal Square and they would undoubtedly patronize local merchants, hotels and other facilities while they were there. The fact that their presence was religiously rather than secularly motivated would seem to have absolutely no significance for zoning purposes.
While defendants' plans to rejuvenate the Journal Square area represents a compelling public interest, there is nothing to show that plaintiffs' proposed use of the theater would in any way interfere with implementation of the plan. Defendants suggest two reasons why allowing the use of the Stanley Theater for religious purposes would cause such interference.
First, the plaintiffs' use of the building would prevent acquisition of the site for an office building, high-rise apartment or other commercial use. However, there has been no showing either that there are no available sites in the C-1 zone for such uses or that any potential developer is unable or unwilling to proceed with the project in the C-1 zone by reason of plaintiffs' proposed use of the theater. Second, defendants assert the City will lose real estate taxes if the theater were converted to religious uses. This may be true, but it is questionable whether this is a proper zoning reason to forbid religious use of property. Further, even if it were to be considered there surely are other means to build the City's tax base so as to avoid impinging on activity protected by the First Amendment.
Generally, the cases upon which defendants rely support the imposition of reasonable regulations on the use of land and buildings by religious bodies, e.g., First Assembly of God against the City of Alexandria, Virginia, 739 F.2d 942 (4th Cir. 1984.) That is a far cry from absolute prohibition of religious use in a given zone, cf., St. John's Evangelical Lutheran Church v. Hoboken, 195 N.J. Super. 414, 479 A.2d 935 (Law Div. 1983).
On the basis of the evidence before me now, I conclude that it is unlikely that defendants will be able to meet either standard for evaluating a zoning ordinance. Plaintiffs' proposed use of the theater being precisely the kind of use contemplated in a C-1 zone, to forbid such use is not rationally related to legitimate municipal zoning concern. A fortiori forbidding plaintiffs' proposed religious use of the theater serves no substantial government interest. For a suggested different method of analysis leading, I believe, to the same result which I have reached in this case, see Note, Land Use Regulation and the Free Exercise Clause, 84 Col. L. Rev. 1562 (1984).
Plaintiffs urge that Schad suggests one further reason why plaintiffs are likely to prevail on the merits. The Zoning Ordinance under review in that case was found to be defective because it did not permit live entertainment, a form of expression protected by the First Amendment, in any part of the borough. Plaintiffs argue that in the present case the effect of Jersey City's interpretation of its Zoning Ordinance is to preclude Jehovah's Witnesses from conducting anywhere in the City circuit assemblies, a form of exercise of religion protected by the First Amendment.
The City authorities have ruled that the Stanley Theater, which was designed to accommodate gatherings of that size, may not be so used because buildings used for religious purposes are not allowed in any zone other than a residential zone. Further, it appears that the applicable ordinances would not permit a structure such as the Stanley Theater to be built and used in a residential zone. From this plaintiffs argue that there is no place in Jersey City where plaintiffs can acquire or erect a building in which they can carry on the religious activities proposed for the Stanley Theater. I do not believe that this argument is tenable. Even though a building having the physical configuration of the Stanley Theater could not be built in a residential zone, it appears that differently designed buildings in which plaintiffs' assemblies could be conducted may lawfully be built in residential zones under applicable ordinances.
Having concluded, however, that the plaintiffs have met the requirements for preliminary injunctive relief, an order will be entered requiring the plumbing and electrical permits be issued for the work described in the applications which the New Jersey Witnesses filed on June 21, 1984.
Plaintiffs seek no further relief at this time and I believe no further relief is appropriate now. If any party is of a view that any pending motions retain vitality in spite of today's rulings, the party may set such motion for hearing on the November 13th regular motion day.
Except for such motions, further proceedings in the action will be stayed on Pullman principles. This will give the Jersey City Board of Adjustment and the New Jersey courts an opportunity to determine the effect of the Board's failure to rule on plaintiffs' application to it and to construe the applicable provisions of the Jersey City Zoning Ordinance. Upon resolution of any viable pending motions the action will be administratively terminated with the right of any party to move to reopen for good cause.
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