The opinion of the court was delivered by: Sheridan, U.S.D.J.
This matter comes before the Court on a motion for summary judgment by defendant and a motion for partial summary judgment by plaintiff. For the reasons stated below, both motions are denied in their entirety.
Plaintiff, Albanian Associated Fund (collectively with Imam Arun Polozani referred to as "plaintiffs" or "the Mosque"), is an entity created for the purpose of establishing and maintaining a Mosque and to provide a place of public worship and prayer in accordance with the traditions of the Islamic religion. Currently, the congregation convenes at a facility located on River Street in Paterson, New Jersey. That property, purchased by plaintiffs in 1985, houses a 3,000 square foot facility that accommodates approximately 70 to 100 individuals. Over the years, the Mosque's congregation grew to approximately 200 families, 70% of which reside in the Township of Wayne (collectively with the Township of Wayne Planning Board referred to as the "Township"). According to the Imam, the current facilities are considered by plaintiffs to be inadequate because:
[t]he hall is not large enough to allow both men and women to pray; women are required to pray in the basement where they cannot face Mecca or see the Imam as is required by the religion; the women cannot engage in cleansing, a requirement for prayers; women could not participate in the holiday activities; the Mosque cannot offer youth activities; and funerals cannot be held at the Mosque.
As a result, on September 6, 2001, plaintiffs entered into a contract for the purchase of property known as Block 3517, Lot 40 on the Tax Map of the Township of Wayne, New Jersey. The eleven (11) acre property is located in a land use zone where a "house of worship" is a conditional use. This parcel is claimed by defendants to be defined by ordinance as "environmentally sensitive" because it consists almost entirely of rocky steep slopes. Plaintiffs dispute this contention, maintaining that the phrase "environmentally sensitive" is not defined by any Township ordinance. The property, which has always been undeveloped, was previously the subject of two variance applications, one for a residential subdivision in 1987 and the other by the North Haledon Nursing Home Association in April 1994. While the residential subdivision was granted, the variance sought by the North Haledon Nursing Home Associations was denied due to the Township Board of Adjustment's finding that "[t]he subject property is environmentally sensitive as defined by the Township Environmental [sic] containing steep slopes and soil consisting of bedrock within one and one-half feet of the surface and bedrock at the surface."
Defendants maintain that prior to plaintiffs' purchase of the subject property, in June 2001, mayoral hopeful, Scott Rumana, proposed an Open Space Plan as part of his campaign platform. According to campaign literature, Rumana, along with his campaign team, comprised of Councilman Christopher Vergano, Councilman Joseph Schweighardt, and Councilwoman Harriet Rossi, pledged that "[f]or our future [they] will fight to preserve precious open spaces." On June 26, 2001, Rumana was elected as Mayor. It was only after this proposal was introduced that plaintiffs contracted to purchase and, on October 5, 2001, subsequently closed on the subject property.
On October 17, 2002, plaintiffs submitted a Land Development Application with a Site Plan to develop the property as a religious facility. Representatives for the Mosque first appeared before the Defendant Planning Board on March 24, 2003. Since that time, plaintiffs' application has been revised, withdrawn, and resubmitted for several reasons including environmental issues regarding storm water management, height and fencing requirements, parking issues, and traffic concerns. Because the property is located between two county roads, the County of Passaic also retained jurisdiction to review and approve the plan for storm water drainage.
In November 2003, nearly two and a half years after the open space proposal was first introduced, and while plaintiff's site plan application remained pending before the Defendant Planning Board, the Township residents voted to approve the Open Space Referendum, which would put aside a portion of resident tax dollars to purchase and preserve open spaces. According to one councilman, the plaintiff's application to build its Mosque was one of the reasons that the entire Open Space Referendum was put on the ballot. Following voter approval, an Open Space Committee was formed on January 1, 2004, with the Mayor chairing the Committee. It is an ad hoc committee. The Committee, which retains no binding authority or voting power, was assembled solely to identify properties to be preserved for open spaces to the Township Council.*fn1 The Referendum charged the Committee with submitting a "prioritized list of properties to be acquired and/or properties from which development rights should be acquired" to the Council. Only after such a list had been compiled by the Committee and approved by the Council is the Council empowered to acquire any property for open space purposes. The Committee, however, never submitted a prioritized list of properties to be acquired, but rather provided a list of all undeveloped land in the Township. Certainly, with no intention of acquiring all open space in the Township, plaintiffs maintain, and the mayor admitted at his deposition, that the Committee pursued properties on an individualized property-by-property basis.
Defendants claim that at the third meeting of the Open Space Committee, on May 20, 2004, the subject property was identified as a candidate to be preserved. The record is void of any indication if or when the Township notified the Mosque that its property was subject to the Open Space Initiative. Plaintiffs, however, argue that nowhere in the minutes of the Open Space Committee was there a recommendation to acquire the Mosque's property. In fact, at the first two meetings of the Committee, there was no mention of the plaintiffs' property. While the Mosque's property was mentioned at the May 20, 2004 meeting, plaintiffs argue that it was never identified as a candidate or recommended for open space. At that meeting, according to plaintiffs, the Committee discussed the priorities for acquisition and listed other properties for acquisition.
On March 14, 2005, a public hearing was held where the Planning Board adopted the Open Space and Recreation Plan, which provided that "[a] preservation plan for the remaining undeveloped and environmentally sensitive parcels located within the Township is required in order to preserve those final tracts that, if developed, would severely impact the future quality of life of the Township's residents."
On January 18, 2006, the Council held a closed session meeting to discuss the subject property.*fn2 The exact subject matter of the session has been held privileged.*fn3 Plaintiffs maintain that it was at this closed meeting that defendants decided on the acquisition of the subject property. Believing that it had the requisite legal grounds to acquire the property via eminent domain, the plaintiffs' property was the subject of discussion at a January 26, 2006 Committee meeting. Plaintiffs contend that the mayor simply informed the Committee at this January 26, 2006 meeting that the Township was acquiring the property. On April 5, 2006, the Township passed Resolution 139 in furtherance of the Open Space and Recreation Plan, authorizing an appraisal report of the plaintiffs' property for use in condemnation proceedings. Defendants maintain that the Council focused only on the environmentally sensitive nature of the property and the fact that a development application was pending. According to defendants, the proposed structure and use had no bearing on the Council's decision.
Defendants point to the deposition testimony of several members of the Council to establish that the decision to acquire the property was not motivated by an improper purpose. Councilman Christopher Vergano testified that "it wasn't about them. It was the 10 acres of property. It could have been Our Lady of Consolation that owned the property. It wouldn't have mattered." Councilman Gerald Porter suggested that none of the members of the Council even knew the property belonged to plaintiffs. ("They didn't tell me it was the Albanian's or anything. None of us knew that."). Councilwoman Ann Mary O'Rourke offered the following:
Did I look at it having implications for the free exercise of religion? No, because at that time we were looking into the possibility of acquiring the property, so I did not look at it at all as being something where we were infringing on somebody's exercise of religion. I would look at it as if it was any organization, corporation, or anything at that point because it was just looking into the possibility of acquiring it.
Councilman Mario Ianelli testified that his decision had "nothing to do with the application being for a Mosque and everything to do with it being developed." Likewise, Councilman Benedict Martorana stated that "[t]he nature of the land use wasn't important, just the impacts on the land. There was no concern about the proposed use, no discussion on the proposed use, whether that was of any concern at all to the Committee." Councilmen Alan Purcell, Joseph Schweighardt, and Joseph Scuralli each testified that their decision to vote in favor of acquiring the land centered around the environmental concerns about the property. Councilman Joseph DiDonato stated that he voted to acquire the property because of flooding and parking conditions.
The Township offered plaintiffs compensation in the amount of $510,000. Additionally, according to the Township, alternative locations were suggested within the Township upon which plaintiffs may want to build its Mosque. Plaintiffs rejected the monetary compensation and found the alternative sites suggested by the Township to be unavailable. The Township advised plaintiffs that it would initiate condemnation proceedings.
On July 17, 2006, the Mosque filed the instant Verified Complaint and thereafter moved for a preliminary injunction seeking to "enjoin the defendants from taking any action under powers of eminent domain or otherwise interfering with plaintiffs' quiet enjoyment of their property...pending final disposition of this action." On November 1, 2006, the Court heard the motion for a preliminary injunction. In the course of that hearing, it was made apparent that despite approximately 102 properties identified for the Open Space and Recreation Plan, only the plaintiffs' property was being pursued through condemnation. As a result, the Court granted a preliminary injunction enjoining defendants from taking any action under powers of eminent domain pending final disposition of this action.*fn4 After postponing several scheduled hearings in which the Court sought testimony to determine whether the preliminary injunction should continue, the parties agreed to keep the injunction in place while the Court considered dispositive motions. Defendants filed a motion for summary judgment and plaintiffs have moved for partial summary judgment. The United States of America, Department of Justice, Civil Right Division, Housing and Civil Enforcement Section, was granted leave to file a brief as amicus curiae, which was submitted solely in support of plaintiffs' claim under RLUIPA, Section 2(b)(2).
At the outset, notwithstanding the extensive briefing, what is obvious from oral argument and a settlement conference is that the parties bitterly dispute the facts. Accordingly, the Court can not render a decision on the motions because of these factual and credibility issues which this Court can better judge through trial. These disputes include, but are not limited to:
a) whether reasonable alternative sites exist;
b) when and how the Mosque parcel was deemed "environmentally sensitive" and subject to eminent domain proceedings, or whether it was a method to quell community opposition to the development of the Mosque; and
c) whether the condemnation actually is a burden on the exercise of religion by members of the Mosque.
"Eminent domain is the power of the State to take private property for public use...It is a right founded on the law of necessity which is inherent in sovereignty and essential to the existence of government[.]" Township of W. Orange v. 769 Assocs., 172 N.J. 564, 571 (2002) (quoting State v. Lanza, 27 N.J. 516, 529 (1958)). "Generally, a government entity may take, or condemn, private property where it is essential for public use, and where just compensation has ...