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Farhi v. Commissioners

Decided: July 19, 1985.

ISAAC FARHI, PLAINTIFF,
v.
THE COMMISSIONERS OF THE BOROUGH OF DEAL; THE DEAL TOWN CLERK; THE BOROUGH OF DEAL; A MUNICIPAL CORPORATION, AND THE BOARD OF ADJUSTMENT OF THE BOROUGH OF DEAL, DEFENDANTS



Selikoff, J.s.c.

Selikoff

This Court must resolve whether our State Constitution is violated when a municipal zoning ordinance, which excludes houses of worship, is enforced to prevent the gathering of religious worshipers in a private residence. The matter arises by verified complaint in lieu of prerogative writs with an order to show cause seeking temporary restraints. R. 4:69-1 et seq. Defendant municipal bodies were enjoined from issuing any summons or from otherwise prosecuting plaintiff or his invitees for assembling or praying at plaintiff's home pending final disposition of this matter. R. 4:69-3.

At a plenary hearing two witnesses, plaintiff and a municipal planning expert, testified on behalf of plaintiff. Another planning expert testified on behalf of defendants. The court also sat in appellate review of the record below which had been developed before both defendant municipal bodies. R. 4:69-1 et seq.

The material facts are not in dispute. Plaintiff Isaac Farhi is the record owner of a single-family dwelling at 258 Norwood Avenue, in the Borough of Deal, New Jersey. The home is a multi-level structure situated upon approximately one-quarter of an acre. Plaintiff's home contains a large living room, dining room, foyer, den and kitchen on the first floor and several bedrooms upstairs. A detached garage with a finished lot is also on the property. Plaintiff resides in his home with his wife and four children.

Plaintiff is a self-described educator employed at a local religious school and is a rabbi of the Sephardic Jewish faith. He asserts that functioning as a rabbi is secondary to that of

his primary calling, a teacher. The religious principles of his faith require that its male adherents assemble for a brief daily prayer session as well as for regular Sabbath and Holy Day services. A quorum of ten participants is required to conduct these daily religious services. A synagogue is available for use by members of the sect, but is located approximately one mile to the north of Rabbi Farhi's home. This is quite significant because on the Sabbath and Holy Days, the faithful are precluded from the operation of any mechanical device. Members of the sect are therefore prohibited from driving an automobile to transport themselves to Sabbath or Holy Day religious services. In addition, a significant number of elderly congregants reside within a one-mile radius of Rabbi Farhi's residence. Since the precepts of their faith as well as their own bodily limitations place restrictions on the distances these congregants may travel to attend religious services, Rabbi Farhi has permitted the use of his own home as a gathering place for the performance of such services since June 1983.

Rabbi Farhi did not apply to either defendant municipal body for a use variance before permitting religious services in his home. Only after a town official issued him a municipal summons was an application made to the Deal Board of Adjustment for a use variance. That variance application was denied by the board on March 1, 1984. The appeal by Rabbi Farhi to the board of commissioners was denied on July 24, 1984. N.J.S.A. 40:55D-17.

It is evident that Rabbi Farhi has converted a portion of the main floor of his home for a specific use during these religious services. A room has been outfitted with much of the accouterments of a synagogue including a tabernacle, a Torah, a podium and several chairs. The Farhi home has even been identified in certain religious publications and by members of the religious community as the "Synagogue of South Deal." On any given Sabbath or Holy Day, there are between 15 and 25 congregants in the Farhi home, all of whom must arrive on foot. The daily prayer gatherings are not as well attended,

with most congregants arriving on foot but several arriving by car. On two occasions there were large assemblages, but such experience has apparently not reoccurred.

Defendants contend that the use by Rabbi Farhi of his home in this manner is a violation of both the 1967 and 1984 zoning ordinance which restricts the use of the property to a residential use; that the board of adjustment correctly interpreted both zoning ordinances in requiring that plaintiff seek a use variance; that the board of adjustment's determination that plaintiff was not entitled to a use variance was neither arbitrary nor capricious; that the board of commissioners' affirmance of the denial by the board of adjustment of Rabbi Farhi's use variance application was also neither arbitrary nor capricious; that plaintiff failed to establish a valid nonconforming use, and that defendants' acts are not violative of plaintiff's right to freely exercise his religious beliefs as guaranteed by the State and Federal Constitutions.

Plaintiff contends that both the 1967 and 1984 zoning ordinances are unconstitutional because they violate his right to freely exercise his religious beliefs as guaranteed by the State and Federal Constitutions; that both ordinances represent an improper exercise of police power; that assuming a variance was necessary, it should have been granted because the use inherently serves the public welfare and any negative criteria are overcome, and that the actions of defendants in denying the application were arbitrary and capricious since plaintiff's worship activities are an explicit, valid use, as well as one permitted in a residential zone.

The municipal ordinance in effect at the time this action was commenced was adopted in 1967. Under that ordinance plaintiff's home was located in district six. That zone limited the principal use of plaintiff's property to a residence.

18-6.2 Districts 2 to 7 inclusive and 9 and 11 Use Regulations. Within districts numbers 2 to 7 inclusive and 9 and 11, no business or profession of any kind shall be conducted or carried on and no building on premises shall ...


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