The opinion of the court was delivered by: Walls, District Judge
This matter is before the Court on defendant City of Long Branch's motion for summary judgment and plaintiffs Lighthouse Institute for Evangelism and Reverend Ken Brown's (collectively "the Mission" or "plaintiffs") cross-motion for summary judgment on their claims under the Religious Land Use and Institutionalized Persons Act ("RLUIPA). The Court heard oral argument on December 7, 2005. Plaintiffs' cross-motion for summary judgment is denied; Long Branch's motion for summary judgment is granted.
FACTS AND PROCEDURAL HISTORY*fn1
On June 8, 2000, plaintiffs filed a Complaint in Lieu of Prerogative Writ in Monmouth County Law Division. Defendants removed it to this Court. On September 22, 2000, President Clinton signed the RLUIPA into law. Plaintiffs then filed an Amended Verified Complaint on October 23, 2000, which added a claim under RLUIPA. On April 7, 2003 this Court denied Plaintiffs' requests for injunctive relief and summary judgment on its facial challenge to Long Branch's zoning Ordinance 20-6.13 (the "Ordinance"). The Court also granted summary judgment to defendants on the Mission's "as-applied" constitutional claims on ripeness and failure to exhaust administrative remedies grounds. On June 25, 2004, the Third Circuit upheld this Court's decision denying injunctive relief. The parties reinstated the dismissed constitutional claims by consent agreement on July 8, 2004. Plaintiffs filed a Second Amended Complaint on July 26, 2004.
The Mission is a New Jersey nonprofit corporation formed in 1991. Its stated purpose is to administer teachings of the bible to its congregation, operate a ministry school and operate benevolent services and agencies to the community. Compl. at ¶ 1. It currently owns the property at 162 Broadway in Long Branch. Plaintiff Reverend Kevin Brown resides at 162 Broadway and is the Mission's presiding minister. Before moving to 162 Broadway, the Mission operated a soup kitchen across the street at 159 Broadway.
The Property at 162 Broadway in Long Branch ("the Property") is located within a C-1 Commercial District designated by the Ordinance, then amended to Ordinance § 345.30. Under this Ordinance, a church is not listed as a "permitted use" within a C-1 Commercial District. Section 20-6.13(a)(3) specifically lists other permissible uses which plaintiffs term "assembly," including "Assembly hall, bowling alley, and motion picture theater." Other uses permitted include restaurants, colleges, municipal buildings, parks, playgrounds, health spas, gyms, barber shops, and beauty salons. Plaintiffs applied to use the property as a church, but their application was denied.
In October, 2002, the City of Long Branch passed an amended redevelopment ordinance 47-02 ("Redevelopment Ordinance") pursuant to N.J.S.A. 40A:12A-l, the "Local Redevelopment and Housing Law." Ordinance 47-02 is significant because it officially includes plaintiffs' property, 162 Broadway, Block 283, Lot 9 in the "City of Long Branch Broadway Redevelopment Program."
Under N.J.S.A.. 40A: 12A-4, the City of Long Branch became empowered as the governing body. The City and City Planning Board acted in accordance with this statute and the "Broadway Corridor" which includes plaintiffs property, was declared to be an area in need of rehabilitation, under N.J.S.A. 40A:12A-5. When the ordinance declaring the Broadway Corridor to be subject to a redevelopment plan was passed in October of 2002, plaintiffs did not challenge the Ordinance either as to its constitutionality or it being arbitrary, capricious and unreasonable.
Once the ordinance was adopted pursuant to N.J.S.A. 40A: 12A-7(c), the redevelopment plan superceded "applicable provisions of the development regulations of the municipality or constitutes an overlay zoning district within the redevelopment area. When the redevelopment plan supersedes any provision of the development regulations, the ordinance adopting the redevelopment plan shall contain an explicit amendment to the zoning district map included in the zoning ordinance." N.J.S.A. 40A: 12A-7(c). Neither this Court, not the Third Circuit was asked to address the constitutionality of this new ordinance.
Facts Relating to Long Branch
Plaintiffs contend their application for a permit has been thwarted purposely by Long Branch's Planning Board (the "Board") by deliberately allowing the application to languish. They claim that the Board stalled the application with technical requests, failed to place the application on its agenda when those requests were fulfilled and failed to consider the Mission's request for a waiver of the fee application on the basis of its non-profit status. Plaintiffs also claim that by not granting use, the Board prevented the Mission from obtaining its tax exemption. Furthermore, plaintiffs allege that the Board has "harassed" and "intimidated" both the Mission and Reverend Brown, by issuance of various summonses for alleged code violations.
The Second Amended Complaint states the following claims against Long Branch: (1) Prerogative Writ-Mandamus under New Jersey R.4:69-1, which seeks injunctive and equitable relief, as well as compensatory and consequential damages (Count I); (2) violation of the Free Exercise Clause of the First Amendment and of Article I, para. 3 of the New Jersey Constitution under 42 U.S.C. § 1983 (Counts II-III); (3) violation of the Establishment Clause of the First Amendment and Article I, section 4 of the New Jersey Constitution under § 1983 (Count IV); (4) violation of the Equal Protection Clause of the Fourteenth Amendment under § 1983 (Count V); (5) violation of substantive Due Process rights under the Fourteenth Amendment and 1983 (Count VI); (6) discriminatory use of zoning power in violation of the First, Fifth and Fourteenth Amendments (Count VII); (7) discriminatory use of zoning power in violation of article I, sections 1, 3, 4, 5, 18 and 20 of the New Jersey Constitution (Count VIII); (8) violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq. (Count IX); (9) violation of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (Count XIII); (10) statutory and constitutional challenges to the Redevelopment Ordinance (Count VIV).
On April 7, 2003, this Court dismissed Counts II-IX and XIII of Plaintiff's Amended Complaint, without prejudice, on ripeness grounds and directed plaintiffs to exhaust administrative remedies. The Court incorporates by reference the factual background described in its April 7th Opinion.
Reverend Brown states that after the Court's April 7, 2003 dismissal, he went to City Planner Carl Turner for purposes of determining the administrative review process in light of the new Redevelopment Program. Plaintiffs sought guidance from the Long Branch City Council, which oversees the Redevelopment Program. City Administrator Howard Woolley provided plaintiffs with Long Branch's "Oceanfront-Broadway Redevelopment Program RFQ/RFP" manual.
After reviewing the Request For Qualification/Request For Proposal ("RFQ/RFP") manual, plaintiffs submitted an RFQ application*fn2 seeking a waiver of the prohibition of church use at 162 Broadway and a designation of plaintiffs as the developer for 162 Broadway. By letter dated December 23, 2003, Long Branch's Special Redevelopment Counsel, Peter A. Buchsbaum, Esq., notified plaintiffs that their RFQ Application had been rejected.
Defendants argue that plaintiffs allowed the Redevelopment Ordinance to become effective in October 2002, and approximately a year later, filed for developer status by submitting an application which demanded uses not permitted under the redevelopment ordinance. The application was rejected on December 23, 2003. After plaintiffs' application was rejected, the next step was to appeal to the Mayor and Council, the governing body of a municipality, and request a hearing on the amendment of the Plan to authorize the requested uses. See N.J.S.A. 40A: 12A-7. In accordance with the statute, plaintiffs appealed the rejection on April 19, 2004. Administrative hearings were held before the Long Branch City Council on May 11, 2004. The Council voted unanimously to deny the plaintiffs' request to approve their requested uses and amend the Redevelopment Plan to allow churches.
I. Standard for Summary Judgment
"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 31, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v American Tel. & Tel. Long Lines, 794 F.2d 8609, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists only if the evidence presented would enable a reasonable jury to return a verdict for the non-movant. See Anderson, 477 U.S. at 248. Summary judgment must be granted if no reasonable trier of fact could find for the non-moving party. See id. at 249.
To defeat summary judgment, an issue of fact in dispute must be one which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claims. See Anderson, 477 U.S. at 248. The non-moving party may not defeat summary judgment by simply resting on the argument that the record contains facts sufficient to support his claims. See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1995); O'Donnell v. U.S., 891 F.2d 1079, 1082 (3d Cir. 1989). Rather, the non-moving party must go beyond the pleadings and, by affidavits or other evidence, designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324; Fed. R. Civ. P. 56(e). Such affidavits must be based "on personal knowledge," establish "such facts which would be admissible," and "show affirmatively that the affiant is competent to testify in all matters stated therein." Maldonado v. Ramirez, 757 F.2d 48, 50 (3d Cir. 1985); see also 6 J. Moore, W. Taggert & J. Wicker Moore's Federal Practice § 56.22 (2d ed. 1985). "[C]onclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972); see also First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Gostin v. Nelson, 363 F.2d 371 (3d Cir. 1966).
Long Branch initially suggests that plaintiffs claims regarding the original Ordinance are moot now that the Redevelopment Ordinance has superceded it. However, the original Ordinance is not mooted here, where plaintiffs seek compensatory damages sustained by the allegedly unconstitutional nature of the ordinance. Nextel West Corp. v. Unity Township, 282 F.3d 257, 262-63 (3d Cir. 2002).
III. Statutory Challenge (RLUIPA)
The Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq., was passed by Congress in 2000, mainly in response to concerns that land use regulations were increasingly being utilized to discriminate against religious institutions. The RLUIPA, which has withstood numerous constitutional challenges, has two particular provisions at issue in this case. First, the RLUIPA has a substantial burden provision that requires land-use regulations that substantially burden religious exercise to be the least restrictive means of advancing a compelling governmental interest. Second, the Act has a nondiscrimination provision, which prohibits land-use regulations that disfavors religious uses relative to non-religious uses. Specifically, the Act provides:
(1) General rule: No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that ...