Holy Cross makes appeal a federal case

Attorney says board

By libby kesil
Staff Writer

Holy Cross makes
appeal a federal case
By libby kesil
Staff Writer

As expected, the Church of the Holy Cross has filed an appeal of the Red Bank Zoning Board of Adjustment’s decision denying its expansion plan.

The appeal was filed not in state court, where appeals of Zoning Board decisions are typically heard, but in federal District Court.

Rather than rely on interpretations of the state’s land use laws, the church is filing the appeal under the Religious Land Use and Institutionalized Persons Act of 2000, which states: "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" unless the government demonstrates a compelling interest for the regulation.

During the lengthy hearings on the proposal, church officials and their attorney, Bennett Stern, promised an appeal under the federal statute if the application was not approved.

As the board met to consider the church’s plan, Stern introduced the statute into the record of the proceedings and said that a denial would be a violation of the law.

Stern said the church filed the appeal in federal court as opposed to the state Court of Appeals because the case involves a federal statute.

He said that the Zoning Board "did not adhere to the statute."

Stern also said the board violated the First Amendment guarantee of free speech and the 14th Amendment guarantee of equal protection under federal law.

While making its decision based on the state’s land use statutes, the board did include consideration of the federal law in its decision.

The board determined that "the scope and effect of that law, being recently enacted, is somewhat unclear as the board has been advised there has been limited judicial interpretation."

On Oct. 15, 2002, the board denied the church’s application with a 6-1 vote.

Under the plan put forward, the church was seeking to build a 9,614-square-foot addition to its present building to increase seating in the main sanctuary from 292 to 600.

As it exists, the church is a building of 4,375 square feet.

The church also proposed a two-story addition to the school that would add 9,776 square feet of lot coverage to the site.

The existing school building has a 31,790-square-foot footprint.

Along with the new building, the plan called for changes to parking areas, playground areas, driveways and entranceways.

The parcel of land, which also contains a rectory and a barn, is roughly 7.5 acres.

In the denial, the board said expansion of the church’s facilities was not out of the question, but the proposed expansion presented "substantial overbuilding and accompanying problems and detriments." The board noted that granting approval would require numerous and substantial variances and design waivers in such critical points as building and lot coverage, buffers, parking and setbacks, in some cases exceeding borough zoning standards in excess of 300 to 500 percent.

According to Fred Andre, the borough’s zoning officer and Zoning Board secretary, the borough has retained the law firm McCarter & English, Newark, to handle the appeal. John Pendleton will be the attorney in charge.

Calls to Zoning Board attorney Bernard Reilly were not returned in time to be included in this story.