by Robert Wiener
NJJN Staff Writer

May 7, 2009

A longstanding zoning dispute between the Chabad movement’s Chai Center and the Millburn township government appears to be heading for court.

In legal documents filed in February, the township alleged that Rabbi Mendel Bogomilsky and his wife, Rivkah, violated local ordinances forbidding them from using their private home as a synagogue.

In response, the Bogomilskys filed a lengthy counterclaim in Essex County Chancery Court in March.

They charge Millburn officials with religious discrimination, denial of due process, placing “substantial burdens” on them, and a “conspiracy for the purpose of depriving the Bogomilskys of their constitutional rights.”

The focal point of the dispute is the Bogomilskys’ home on the corner of Old Short Hills Road and Jefferson Avenue. Their webpage and a synagogue listing in New Jersey Jewish News submitted by the Bogomilskys refer to the address as the “Chai Center of Millburn/Short Hills” and the “Shul at Short Hills.”

The building serves as headquarters for the couple’s outreach activities, which include a Hebrew school program, holiday celebrations, and other social and educational events.

The town is seeking to stop the rabbi from holding prayer services there on weekdays as well as services on festivals, Shabbat, and the High Holy Days, alleging that such practices violate local zoning laws.

“It is more than a rabbi having minyans with his minions,” said Michael Kates, the Hackensack attorney representing the township, punning on the Hebrew term for a prayer quorum. “It is an institutional use when you’re…advertising services in the Jewish press, when you’re having speakers through public advertising, when you have congregants supporting memberships and organized activities correlating to religious holidays and religious study.

“It has a membership and all the trappings of organized religion,” said Kates.

Although the Bogomilskys’ Manhattan attorney, Philip Pfeffer, declined a NJJN request to visit the property or speak with his clients, both Pfeffer and his opposing counsel discussed the case in separate telephone interviews.

“There is plenty of case law that stands for the position that if someone is using their residence as an ancillary use to host prayer groups, it is clear that a municipal authority cannot impose or try to control their rule of what goes on in the privacy of their home,” said Pfeffer.

“If the rabbi was just inviting people over with the same level of frequency for meals or to discuss Kant and Nietzsche, or to watch football, basketball, baseball, soccer, or hockey, there is nothing they could do about it,” Pfeffer added. “But suddenly, because they break out a siddur and read from a Torah, the town says it can control that behavior and regulate it. That is fundamentally unconstitutional.”

Kates disagreed.

“If the religious observances happen with regularity, I don’t think it’s any different from an educational institution having to comply with local ordinances because of the volume of people in the house.” There are safety factors and police factors here that come into play when you have a group-gathering use as distinguished from a single-family residence.”

Rabbi Steven Bayar of the Conservative Congregation B’nai Israel, president of the Clergy Association of Millburn and Short Hills, sides with the township.

The Bogomilskys “told the town it is not a synagogue and yet they put out a bulletin that declares they are holding synagogue activities. What do you expect members of the township to think?” said Bayar.

“The manner in which Rabbi Bogomilsky is going about this is divisive,” he added. “What I am doing by defending the town is also divisive. But I happen to think the town is right, and he is personally suing people who don’t deserve to be sued.”

Gray areas

Marc Stern, legal counsel for the American Jewish Congress and an expert on church and state issues, said the case law is divided in cases like this, particularly surrounding the federal Religious Land Use and Institutionalized Persons Act. Known as RLUIPA, the statute was designed to give houses of worship some relief from “substantial burdens” imposed by local laws.

“Houses of worship do not have a blanket exemption from housing procedures. They are required to go through the process, even if the town has announced in advance it is futile,” Stern told NJJN.

But Stern also pointed to an underlying question raised in litigation in Michigan and Connecticut.

“If a town allows a weekly poker party of 20 people and enforces nothing against those who run the poker parties, can it then turn around and enforce the rules against people who gather to pray?” he said. “The answer seems to be ‘no,’ although it is not entirely clear. The case law is a little divided.”

To his mind, Stern said, “Bogomilsky may be in a situation where he could win on the merits, but he may not be free to ignore the procedures.”

Stern suspects that Bogomilsky, like many other clergy who conduct services in their private homes, “wants to avoid several years of zoning fights.”

Said Stern: “If you think about all the expense of the environmental work and the traffic survey, it is no longer just about filing some paper. In a society that has legal procedures, it comes at a very real cost to congregations.”

In the meantime, the township’s attorneys must file a response to the Bogomilsky complaint, then begin a lengthy process of depositions and discovery unless both sides reach a settlement.

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