AL UMMAH COMMUNITY CENTER v. TEANECK

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

AL UMMAH COMMUNITY CENTER, AKA, Civ. No. 20-14181 (KM)(ESK)

AUCC FAMILY, EDUCATION AND FAITH

CENTER, a New Jersey Non-Profit

Corporation, RAY OF SUNSHINE OPINION

FOUNDATION, INC., a New Jersey Non-

Profit Corporation,

Plaintiffs,

v.

TEANECK, TEANECK ZONING BOARD OF

ADJUSTMENT, and its Members, HARVEY

ROSEN, DANIEL WETRIN, MONICA HONIS,

JENNIFER PRINCE, JERRY L. BARTA,

EDWARD MULLIGAN, ATIF REHMAN,

MARK MERMELSTEIN, ZEV GREEN,

JAMES BROWN, in their individual and

official capacities, DAN MELFI,

individually and in his official capacity,

ADAM MYSZKA, individually and in his

official capacity, and JOHN AND JANE

DOES 1-20, in their individual and official

capacities,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiffs Al Ummah Community Center, also known as AUCC Family,

Education, and Faith Center, and Ray of Sunshine Foundation, Inc.

(collectively, “AUCC”) initiated this action against the Township of Teaneck, the

Teaneck Zoning Board of Adjustment (“ZBA”), the individual members of the

ZBA, and two officials of the Township based on the allegedly discriminatory

treatment AUCC received when applying for a permit, and subsequently a

variance, to develop its property in Teaneck into an Islamic community center.

To date, AUCC has not received a permit, variance, or temporary certificate of

occupancy permitting it to use the property as a community center.

More than a year into the litigation, the Township passed an ordinance

that rezoned the property at issue (“the Ordinance”). When the local

proceedings took place, and when this action was filed, the property was in the

“Public Lands” zone—which permits schools, administrative facilities, parking

lots, libraries, and other public buildings or structures without any

restrictions, see Teaneck Code Sec. 33-24.23(b). Thereafter, however, it was

placed in a newly-created “Community Center Overlay District,” which

specifically permits privately-owned nonprofit community centers with certain

dimensional, density and bulk restrictions. (DE 94, Ex. A.)1 The only properties

located in the new zoning district are AUCC’s property and one other.

Following the adoption of the Ordinance, AUCC amended its complaint to

add factual allegations and a claim based on the rezoning, which it maintains

is discriminatory and retaliatory in nature. Now before the court are four

separate motions to dismiss the amended complaint, filed by the Township and

its named officials, Dan Melfi and Adam Myszka; the ZBA as an entity; Atif

Rehman, a member of the ZBA; and the remaining named ZBA members. For

the reasons set forth below, the motions to dismiss are GRANTED and the

amended complaint is dismissed without prejudice to amendment.

I. Background

A. Factual allegations

The plaintiffs are Islamic faith-based nonprofit organizations

incorporated in New Jersey. (Compl. ¶¶5-6.) They own a 2.25-acre property in

Teaneck, on which lies a two-story building that was once a public school. (Id.

¶¶16-17.) After the school was decommissioned, the property was sold to a

church and used as a house of worship, a religious school, and a daycare

1 Certain key items from the record will be abbreviated as follows:

DE = Docket entry number in this case

Compl. = Amended Complaint (DE 83)

facility. (Id. ¶¶21-22, 93.) AUCC purchased the property from the church and

now seeks to turn it into an Islamic community center that would include a

house of worship, a daycare facility, and other amenities. (Id. ¶¶25-27, 48.)

Beginning in 2018, AUCC met with Teaneck officials, including senior

zoning officer Dan Melfi, to discuss its proposed plans for the community

center. (Id. ¶¶29, 34.) AUCC alleges that it was “questioned significantly” about

the Islamic nature of the center and was encouraged by Township officials to

downplay the fact that it would be an Islamic center so as to not trigger

opposition from local residents. (Id. ¶¶30-37.) For instance, Melfi advised AUCC

to use an acronym for the center, rather than the full Arabic name. (Id.) AUCC

was also instructed to minimize the prayer space in the proposed plans and to

add a pool so that Teaneck’s swimming clubs and high school could use it to

practice and compete. (Id. ¶38.)

According to the amended complaint, before making a formal submission

to the Teaneck permit office, AUCC presented its proposed plans to Melfi and

other Township officials, who assured AUCC that the plans would be approved

without any issues. (Id. ¶42.) Yet, in September 2019, the formally submitted

plans were rejected on the grounds that ZBA approval was required and that a

permit could not be issued on a property with outstanding violations. (Id. ¶¶43,

61.)

AUCC asserts that a permit to develop the community center should

have been granted outright. At the time of denial, the property was located in

Teaneck’s Public Lands zone, which allows, among other uses, recreational

facilities. (Id. ¶¶48-50.) There are no dimensional, density, or bulk restrictions

in the Public Lands zone. (Id. ¶99.) See Teaneck Code Sec. 33-24.23(b). Thus,

AUCC asserts that it was not required by law to seek a use variance from the

ZBA, nor was it required to seek a variance from any dimensional, density, or

bulk restrictions. (Id. ¶62.) In addition, AUCC asserts that defendant Adam

Myszka, another Township official, collaborated with Melfi to issue frivolous

violations on the property and thereby manufacture a reason to deny the

permit application. (Id. ¶¶63-68.) Separately, AUCC alleges that Melfi further

attempted to prevent it from developing an Islamic community center by

determining that the center required 300 parking spaces—a number that

would be cost-prohibitive for AUCC. (Id. ¶45.)

Following the denial of the permit, AUCC applied to the ZBA for a

variance, and the ZBA held a number of public hearings on AUCC’s proposal.

(Id. ¶¶72, 76.) At these hearings, the ZBA allegedly encouraged the townspeople

in attendance “to continue asking questions without limit or care for how long

the questioning went on for, or whether or not the questions posed were

duplicative and therefore a waste of time.” (Id.) Despite the fact that the ZBA

normally limits the number of times an individual member of the public can

speak, it did not do so with regard to AUCC’s application and instead allowed

the same individuals to speak again and again, taking up substantial time at

the hearings. (Id. ¶¶79-81.)

In particular, AUCC alleges that it was repeatedly questioned about its

daycare curriculum and the prayer services it planned to hold at the center.

(Id. ¶¶78, 83.) One ZBA member, Atif Rehman, allegedly pointed out at a

hearing that the ZBA was handling AUCC’s application differently from other

applications it had considered in the past, including a “Semitic” application.

(Id. ¶¶79-80.)

AUCC asserts that the endless questioning and public opposition that

the ZBA permitted to be voiced at the hearings was a deliberate tactic to delay

ruling on the application. (Id. ¶¶200-203.) It was also intended to cause AUCC

to incur significant fees in the form of escrow funds; AUCC placed nearly

$35,000 in escrow with Teaneck to fund the application but was subsequently

asked to place an additional $25,000 in escrow after the initial sum was used

up. (Id. ¶¶160-163.) AUCC was told that if it did not fund the escrow account,

its application would no longer be considered. (Id.) Allegedly, no other entities

have been forced to pay these amounts to have their applications be heard. (Id.

¶¶163-167.)

According to the amended complaint, the ZBA denied AUCC’s application

on October 1, 2020. (Id. ¶225.) All of the named members of the ZBA, except

Atif Rehman, voted to deny the application. (Id. ¶226.) Because AUCC has not

been granted a temporary certificate of occupancy to use the existing building

as a community center, it has not been able to serve the Islamic community in

even in a limited capacity. (Id. ¶119-121.)

B. This litigation

AUCC commenced this action on October 9, 2020. (DE 1.) It

filed an amended complaint in March 2022 after the Ordinance was passed.

(DE 83.)

The amended complaint asserts fourteen claims arising under the New

Jersey Law Against Discrimination, the New Jersey Civil Rights Act, the New

Jersey Municipal Land Use Law, the federal Religious Land Use And

Institutionalized Persons Act (“RLUIPA”), and the New Jersey and United States

Constitutions. Among the forms of relief sought are compensatory and punitive

damages and an injunction granting AUCC the permits, variances, and

approvals it needs to operate the community center as proposed in its plans.

In May 2022, all defendants moved to dismiss the amended complaint.

Four separate motions to dismiss, with accompanying briefs, were filed by the

Township, Melfi, and Myszka; the ZBA as an entity; Atif Rehman; and the

remaining named ZBA members. (DE 94, 95, 96, 97.)

In support of their motions, all defendants argue that the plaintiffs’

claims are not ripe for review because the ZBA did not render a final decision

on AUCC’s application to develop the community center. (See, e.g., DE 94 at

14-17.) The ZBA members attached to their brief the ZBA’s October 1, 2020,

decision, which states that AUCC’s application was dismissed without

prejudice, rather than denied on the merits. (DE 95, Ex. U at 7.) According to

that decision, the ZBA held five hearings on AUCC’s application between

August 2019 and February 2020. (Id. at 1.) After the COVID-19 pandemic hit in

March 2020, AUCC consented to numerous extensions of the ZBA’s 120-day

deadline to act on the application. (Id. at 3.) See Teaneck Code Sec. 2-108. In

October 2020, however, AUCC refused to grant a subsequent extension or to

replenish its professional escrow account. (Id. at 7.) Rather than take no action

before the deadline, which would result in the application’s automatic

approval, the ZBA chose to dismiss without prejudice. (Id. at 4-6.) The decision

states that if AUCC refiles its application and remedies the deficiency in the

escrow account, the ZBA will again consider the application. (Id. at 6-7.)

The defendants thus argue that AUCC’s claims are unripe because there

has not been a final decision on the application, and that the Court therefore

lacks subject-matter jurisdiction over AUCC’s claims. See Fed. R. Civ. P.

12(b)(1). Rehman argues, as well, that the court lacks subject-matter

jurisdiction over AUCC’s claims because they have been mooted by the passage

of the Ordinance, which specifically designates a “community center” as a

permitted use in the zone where the property lies.

In addition to these jurisdictional arguments, all defendants move to

dismiss the amended complaint for failure to state a claim upon which relief

can be granted. See Fed. R. Civ. P. 12(b)(6). The defendants contend, among

other asserted deficiencies, that the complaint contains impermissible group

pleading, in that it sets forth allegations against the defendants as a group

without specifying which defendants engaged in what wrongful conduct.

The plaintiffs filed briefs in opposition to the four motions to dismiss in

July 2022. (DE 103, 104, 105, 106.) Later that month, all defendants except for

the ZBA as an entity filed briefs in reply (DE 111, 112, 113).

II. Discussion

A. Ripeness and Mootness

Under Article III of the United States Constitution, federal courts have

subject-matter jurisdiction only over matters involving “cases” or

“controversies.” U.S. Const. art. III, § 2. “Courts enforce the case-or-controversy

requirement through several justiciability doctrines that ‘cluster about Article

III,’” including the doctrines of ripeness and mootness. Toll Bros., Inc. v.

Township of Readington, 555 F.3d 131, 137 (3d Cir. 2009), quoting Allen v.

Wright, 468 U.S. 737, 750 (1984). Because they are jurisdictional in nature,

issues of ripeness and mootness are to be determined prior to any substantive

analysis on a motion to dismiss. See ISP Envtl. Servs., Inc. v. City of Linden, Civ.

No. 05-4249, 2007 WL 1302995, at *7 n.1 (D.N.J. May 3, 2007). If a court

determines that it lacks subject-matter jurisdiction over a matter, the matter

must be dismissed. See Fed. R. Civ. P. 12(h)(3).

1. Ripeness

“The ripeness doctrine serves to ‘determine whether a party has brought

an action prematurely and counsels abstention until such time as a dispute is

sufficiently concrete to satisfy the constitutional and prudential requirements

of the doctrine.’” Khodara Env't, Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir.

2004) (quoting Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir. 2003)).

Pursuant to the Supreme Court’s decision in Abbott Laboratories v. Gardner, a

court evaluating the ripeness of an action must consider (1) the fitness of the

issues for judicial decision and (2) the hardship to the parties of withholding

court consideration. 387 U.S. 136, 149 (1967), abrogated on other grounds by

Califano v. Sanders, 430 U.S. 99 (1977).

“For the fitness prong, ‘[t]he principal consideration is whether the record

is factually adequate to enable the court to make the necessary legal

determinations. The more that the question presented is purely one of law, and

the less that additional facts will aid the court in its inquiry, the more likely the

issue is to be ripe, and vice-versa.’” Kyle-Labell v. Selective Serv. Sys., 364 F.

Supp. 3d 394, 403 (D.N.J. 2019) (quoting Artway v. Attorney Gen. of State of

N.J., 81 F.3d 1235, 1249 (3d Cir. 1996)).

In the context of land use disputes, the Supreme Court has held that a

claim is not ripe until the government entity charged with implementing the

land use regulation has reached a final decision regarding the application of

the regulation to the property at issue. See Cnty. Concrete Corp. v. Town of

Roxbury, 442 F.3d 159, 164 (3d. Cir. 2006). This so-called “finality rule” serves

multiple purposes; it: “(1) aids in the development of a full record; (2) provides

the court with knowledge as to how a regulation will be applied to a particular

property; (3) may obviate the need for the court to decide constitutional

disputes if a local authority provides the relief sought; and (4) shows the

judiciary's appreciation that land use disputes are uniquely matters of local

concern more aptly suited for local resolution.” Congregation Anshei Roosevelt

v. Plan. & Zoning Bd. of Borough of Roosevelt, 338 F. App'x 214, 217 (3d Cir.

2009) (quotation omitted).

The finality rule was first applied by the Supreme Court in a case

involving an as-applied Just Compensation Takings claim under the Fifth

Amendment. See Williamson County Regional Planning Com. v. Hamilton Bank,

473 U.S. 172 (1985). In Williamson, the Court held that the property

developer’s Takings claim against a zoning board that had rejected the

developer’s proposal for a new subdivision was not ripe because the appeals

board had not acted. See id. at 186-194. Any takings claim, said the Court,

was not ripe until a variance was finally sought and denied. Id.2

In the Third Circuit, the finality rule applies not only to as-applied Just

Compensation Takings Claims, but also to “as-applied substantive due process

and equal protection claims ‘by property owners or tenants who have

challenged the denial of a permit by an initial decision-maker but failed to take

advantage of available, subsequent procedures.” Cnty. Concrete Corp., 442 F.3d

at 164, quoting Lauderbaugh v. Hopewell Twp., 319 F.3d 568, 574 (3d Cir.

2003). “Only once a ‘decision maker has arrived at a definitive position on the

issue’ has a property owner been inflicted with ‘an actual, concrete injury.’”

Cnty. Concrete Corp., supra, quoting Williamson, 473 U.S. at 192.

2 The requirement of finality is to be distinguished from that of exhaustion. The

Williamson Court held that the developer’s claims were unripe for a second reason:

The developer had not sought compensation for the alleged taking through the state’s

procedures for doing so. Knick v. Township of Scott, Pennsylvania, 139 S.Ct. 2162,

2169 (2019), citing Williamson, 473 U.S. at 194. That second holding of Williamson—

referred to as the “exhaustion requirement”—was overruled by the Court in Knick, but

Knick left the finality rule intact. See 139 S.Ct. at 2169 (“Knick does not question the

validity of [the] finality requirement, which is not at issue here.”)

“Th[e finality] rule does not apply, however, to facial attacks on a zoning

ordinance, i.e., a claim that the mere enactment of a regulation either

constitutes a taking without just compensation, or a substantive violation of

due process or equal protection.” Cnty. Concrete Corp., supra. “A final decision

is not necessary in that context because when a landowner makes a facial

challenge, he or she argues that any application of the regulation is

unconstitutional; for an as-applied challenge, the landowner is only attacking

the decision that applied the regulation to his or her property, not the

regulation in general.” Id. (Quotations omitted.)

2. Mootness

The mootness doctrine represents another approach to the question of

whether this is the appropriate time for judicial review. “The central question of

all mootness problems is whether changes in circumstances that prevailed at

the beginning of the litigation have forestalled any occasion for meaningful

relief.” Rendell v. Rumsfeld, 484 F.3d 236, 240 (3d Cir. 2007), quoting In re

Surrick, 338 F.3d 224, 230 (3d Cir. 2003). Thus, while the ripeness inquiry

considers whether there may be a better time for judicial review in the future,

the mootness inquiry asks whether the time for judicial review has passed

because the parties no longer possess a legally cognizable interest in the

outcome. See Rogin v. Bensalem Twp., 616 F.2d 680, 684 (3d Cir. 1980).

The Supreme Court has developed a two-pronged test for mootness. “A

case may become moot if (1) ‘it can be said with assurance that there is no

reasonable expectation . . .’ that the alleged violation will recur,’ and (2) ‘interim

relief or events have completely and irrevocably eradicated the effects of the

alleged violation.’” Id., quoting County of Los Angeles v. Davis, 440 U.S. 625,

631 (1979). “If a claim is based on a statute or ordinance that is amended after

the litigation has begun, the amendment may or may not moot the claim,

depending on the impact of the amendment.” Nextel Partners Inc. v. Kingston

Twp., 286 F.3d 687, 693 (3d Cir. 2002).

3. Analysis

The ripeness and mootness inquiries are intertwined in this case.

Particularly as to the injunctive relief sought, they both pertain to whether the

court should now review AUCC’s claims based on its application to the

Township and the ZBA for approval to develop the community center. The

defendants argue, on the one hand, that the claims are moot in relation to the

prior ZBA proceedings because (a) from when this action was filed through the

present day, the ZBA has not made a truly final decision on the application;

and (b) as of now, the newly enacted Ordinance has altered the zoning

regulations applicable to AUCC’s property, supplanting the prior standards

that governed the ZBA proceedings. Viewed through the lens of ripeness, on the

other hand, the claims going forward are allegedly not yet ripe because no local

body has yet addressed, let alone made any decision as to, the status of

AUCC’s application under the newly enacted Ordinance.

Before addressing these arguments, I note that the analysis may be

shaped by two background issues: first, whether AUCC’s proposed use of its

property as a community center was, in fact, a permitted use in the former

Public Lands zone, such that no use variance was required; and second,

whether the ZBA denied AUCC’s application for a variance on the merits or

merely dismissed it without prejudice.

At the motion to dismiss stage, a court must accept all factual allegations

in the complaint as true and construe the complaint in the light most favorable

to the plaintiff. U.S. ex rel. Wilkins v. United Health Grp., Inc., 659 F.3d 295,

302 (3d Cir. 2011). The court is not required, however, “to credit factual

allegations contradicted by indisputably authentic documents on which the

complaint relies.” See McGill v. Clements, No. 3:19-CV-01712, 2021 WL

232599, at *2 (M.D. Pa. Jan. 22, 2021), citing In re Washington Mut. Inc., 741

Fed. App'x 88, 91 n.3 (3d Cir. 2018).

In this instance, the complaint is grounded in part on the ZBA’s alleged

denial of AUCC’s application on October 1, 2020; hence, the court may

consider the undisputedly authentic decision of the ZBA, which the defendants

attached to their briefs.3 Because the ZBA’s decision makes it clear that

AUCC’s application was dismissed without prejudice, I will not credit the

allegation in the complaint that the application was ever formally and finally

denied.

I also will not credit the allegation that, under the then-prevailing zoning

classification, no use variance from the ZBA was required for AUCC’s proposed

community center. The Teaneck development regulations, of which I take

judicial notice, do not list community centers under the permitted uses in the

Public Lands zone. Although recreational facilities are allowed in the Public

Lands zone, AUCC emphasizes throughout its complaint that it sought to

create a religious community center with a range of amenities, including

recreational facilities. (See, e.g., Compl. ¶6.) Indeed, AUCC itself, in another

connection, accuses the defendants of “purposefully misconstru[ing] the Site as

a recreational and community facility, rather than the Religious Community

Center that it is.” (Id. ¶126.) It may be apparent, as AUCC says, that a variance

should have been granted, but it is not at all apparent that one was not

required.

With those understandings, I turn first to the issue of mootness. I

conclude that the passage of the Ordinance did not, or at least did not wholly,

moot AUCC’s claims. That a community center is an approved use in the newly

created zone, subject to various conditions, does not guarantee that AUCC will

receive the permits and approvals it seeks. While the rezoning may ease the

3 The defendants also attach to their briefs the transcripts of the multiple

hearings in front of the ZBA and urge the court to consider these transcripts in ruling

on the motions to dismiss. This I will not do. While “a document integral to or

explicitly relied upon in the complaint may be considered without converting the

motion to dismiss into one for summary judgment,” the transcripts are neither integral

to nor explicit relied on by the amended complaint. See Schmidt v. Skolas, 770 F.3d

241, 249 (3d Cir. 2014). I reach the same conclusion with regard to AUCC’s request

that I consider the transcript of the deposition of Atif Rehman; that transcript was not

referenced in any manner in the amended complaint (indeed, the deposition did not

take place until several months after the amended complaint was filed). (See, e.g., DE

104 at 19.) In short, this is the stuff of summary judgment; we are still at the pleading

stage.

process for AUCC, when I credit the allegations of the amended complaint (as I

must), it cannot “be said with assurance that there is no reasonable

expectation” that AUCC’s application could no longer be treated in a

discriminatory manner. Nextel Partners, 286 F.3d at 693. For example,

community center use is subject to dimensional, density, and bulk restrictions

in the newly created zone. Such restrictions, though facially neutral, might well

serve as a vehicle for discrimination (again, I here accept the allegations of the

complaint for purposes of argument). And it remains possible that an

application for a variance from these restrictions could be denied on a

discriminatory basis.4

Critically, AUCC does not now challenge the prior Teaneck zoning

regulations that applied to it before the adoption of the Ordinance. Rather,

AUCC challenges the actions of Township officials and the ZBA in considering

its application, and alleges that the discriminatory animus of the defendants

continues.

I turn to ripeness. That the ZBA did not deny AUCC’s application for a

variance does not quite settle the ripeness question. True, the application was

not finally and formally denied. AUCC argues, however, that it should not be

required to seek a final decision from the ZBA, because such an effort would be

futile. (See, e.g., DE 103 at 23-24.)

In Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 349 (2d Cir.

2005), the Second Circuit observed that there are various exceptions to the

finality rule that governs ripeness in land use cases. For instance, a property

owner “will be excused from obtaining a final decision if pursuing an appeal to

a zoning board of appeals or seeking a variance would be futile. That is, a

property owner need not pursue such applications when a zoning agency lacks

discretion to grant variances or has dug in its heels and made clear that all

such applications will be denied.” Id.

4 As I say, I focus here on the claim for prospective injunctive relief. There

remains a claim for damages based on the past alleged denial of AUCC’s constitutional

rights in the ZBA proceedings. See infra.

Here, AUCC argues that the futility exception should apply to relieve

AUCC of the requirement of a final decision. AUCC alleges that the ZBA

“process was a sham aimed at delaying and denying the application and

bleeding plaintiffs, a non-profit, of precious funds.” (Compl. ¶71.) That delay,

says AUCC, was achieved by such means as allowing members of the public to

ask endless questions at the hearings so as to waste time and require more

hearings to be scheduled. (Id. ¶¶81-82.) Moreover, during the course of the

hearings, the ZBA members “expressed outright hostility towards the Plaintiffs,

and indicated that they had pre-judged the application before it was complete.”

(Id. ¶207.) “Members of the [ZBA] made several comments indicating that there

was no legitimate consideration of the application, and the hearings were a

charade that would simply end in denial if the Plaintiffs could not be bled of

their funds first.” (Id. ¶208.)

AUCC alleges, then, that further proceedings before the ZBA would be

futile because all indications are that the ZBA will not treat AUCC fairly. As

signifiers of that unfairness, AUCC cites the alleged discriminatory treatment

that its application received from the ZBA, as well as the delay tactics and

requests for additional escrow funds. The intention, says AUCC, was to prevent

its Islamic community center from ever opening. Thus, AUCC argues, the lack

of a final decision from the ZBA does not render claims based on the

discriminatory use of the application process unripe. Rather, “the issuance of a

final decision being held in abeyance is the very essence of the claims.” Garden

State Islamic Ctr. v. City of Vineland, 358 F. Supp. 3d 377, 382 (D.N.J. 2018)

(RLUIPA claims based on city’s denial of certificate of occupancy for mosque

were for ripe for adjudication, even though final decision on merits of mosque’s

water flow and sewage permit had not been made, because process was used to

prevent mosque from permanently opening).

Were it not for the passage of the Ordinance, I might be inclined to agree

with AUCC on the ripeness issue. That Ordinance, however, presents an

additional wrinkle not present in the cited case law. This is not merely a case of

waiting in vain for the ZBA to change its mind. Rather, the Township seems to

have stepped in and taken back responsibility from the ZBA; it passed the

Ordinance, which changed the regulatory environment in a manner facially

favorable to AUCC’s application. Pursuant to the Ordinance, the property is

now located in the Community Center Overlay district, where community

center use is explicitly allowed. (DE 94, Ex. A.) It is thus more than possible

that a renewed application to the Township could result in the issuance of a

permit without any need to seek a use variance from the ZBA. AUCC has not

alleged facts sufficient to demonstrate that it would be futile to pursue this

path, which could circumvent the ZBA entirely.

AUCC’s frustration is palpable. It emphasizes in the amended complaint

that it has been “going through this process for years with no end in sight.”

(Compl. ¶213.) Adding insult to injury, the ZBA has demanded that AUCC put

up more money to fund its continued application process. (Id. ¶162.) The delay

and AUCC’s frustration, however, are hardly unique in the annals of local land

use regulation, and the process does seem to be at least potentially moving

ahead, on a revised legal basis.

AUCC has not demonstrated that withholding judicial review until AUCC

applies for a permit under the Ordinance would impose sufficient hardship

under the Abbott Laboratories ripeness test. In general, “[t]he burden of

participating in further administrative and judicial proceedings does not

constitute sufficient hardship for the purposes of ripeness.” NE Hub Partners,

L.P. v. CNG Transmission Corp., 239 F.3d 333, 345–46 (3d Cir. 2001) (quotation

omitted). As to the financial burden of the ZBA escrow, it appears from the

record that an escrow account is not required in order to apply for a permit

from the Township.

When it comes to ripeness, the critical question is “whether there might

be a better time to hear the case down the road.” See Israelite Church of God in

Jesus Christ, Inc. v. City of Hackensack, No. CIV.A. 11-5960, 2012 WL

3284054, at *4 (D.N.J. Aug. 10, 2012). Through passage of the Ordinance, the

Township has in effect reasserted its primacy and relegated the ZBA to the

back seat. To go forward on that basis, rather than attempting to dissect and

correct the prior ZBA proceedings, seems by far the better course. AUCC’s

sweeping claims for injunctive relief, as presented, would require the Court to

step into the shoes of the ZBA and grant all permits and approvals sought. A

far superior time to hear such a case would be after the AUCC has applied

anew to the Township under the Ordinance. Of course, it is still possible that

the Township could deny certain parts of the application, requiring AUCC to

involve the ZBA, but that possibility is precisely the point: AUCC’s claims for

injunctive relief rest upon the contingent future event of how the Township

would respond to its renewed application.5 It is at least plausible that the

Township enacted the Ordinance, not to stymie AUCC’s application, but to

relieve the impasse before the ZBA. Until AUCC applies, we will not know how

the new Ordinance affects its proposal. And it would make little sense for this

Court to preemptively state that such an application must be granted

irrespective of its content or its relation to these newly enacted standards.

The foregoing discussion has focused on the injunctive demand that the

Court mandate approval of AUCC’s application. AUCC’s claims for

compensatory and punitive damages based on the allegedly discriminatory

actions of Township officials and the ZBA members, however, stand on a

different footing. No final decision on the application is necessary with regard

to those damages claims, which would not be extinguished even by an eventual

grant of all necessary permits and approvals. See Israelite Church, 2012 WL

3284054, at *4 (RLUIPA claim for monetary damages based on zoning board’s

delay in granting church’s variance application was ripe even though variance

was eventually granted). Even if AUCC is eventually permitted to develop the

5 Far from on point, but suggestive, is a recent Third Circuit decision, Adorers of

the Blood of Christ v. Federal Energy Regulatory Commission, No. 21-2898, 2022 WL

16754137, at *10 (3d Cir. Nov. 8, 2022) (religious group’s claim against gas pipeline

company became ripe once federal agency tasked with issuing certificates to build

pipelines granted such a certificate to defendant). That case involved, inter alia,

doctrines of federal administrative law which do not apply here.

community center, it may still have a claim for damages incurred as a result of

the alleged discrimination detailed in the amended complaint.

In sum, I conclude that AUCC’s claims are moot insofar as they seek

injunctive relief in the form of reversal of the ZBA’s (non-)decision, and unripe

given the still-unknown effect of the new Ordinance. The claims are justiciable,

however, insofar as they seek compensatory and punitive damages for the

discrimination AUCC has already allegedly suffered during the application

process.

B. Failure to state a claim

I turn to the motions to dismiss the complaint under Fed. R. Civ. P.

12(b)(6) for failure to state a claim in accordance with federal pleading

standards. The motions will be granted, but only on the basis of the need to

amend the complaint to clarify which allegations and claims are asserted

against which defendants.

Under Federal Rule of Civil Procedure 8(a), a complaint must contain “a

short and plain statement of the claim showing that the pleader is entitled to

relief, in order to give the defendant fair notice of what the claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545

(2007) (quotation omitted). This rule “guard[s] against vague and ambiguous

complaints that impede either the defendants' receipt of adequate notice of the

claims asserted against them or their ability to form a responsive

pleading.” Parker v. Learn the Skills Corp., No. 03-6936, 2004 WL 2384993, at

*1 (E.D. Pa. Oct. 25, 2004), citing Schaedler v. Reading Eagle Publications,

Inc., 370 F.2d 795, 798 (3d Cir. 1967). If a complaint fails to meet the pleading

standard set by Rule 8(a), it may be challenged by a Rule 12(b)(6) motion to

dismiss.

“A complaint that contains ‘impermissibly vague group pleading’ will be

dismissed.” 8 Erie St. JC LLC v. City of Jersey City, No. 19-CV-9351, 2020 WL

2611540, at *3 (D.N.J. May 21, 2020) (quoting Falat v. County of Hunterdon,

No. 12-6804, 2013 WL 1163751, at *3 (D.N.J. Mar. 19, 2013)). Mere conclusory

allegations against defendants as a group are insufficient; “a plaintiff cannot

refer to all defendants ‘who occupied different positions and presumably had

distinct roles in the alleged misconduct’ without specifying which defendants

engaged in what wrongful conduct.’” 8 Erie St., supra (quoting Falat, supra).

Here, although AUCC does allege certain actions that were taken by

individual defendants, it refers to “the Defendants” as a group fairly frequently.

For instance, AUCC alleges that “the Defendants” waived numerous zoning

requirements to allow various secular projects to be developed while

“Defendants sought to impose . . . novel and ridiculous interpretations for

setback, parking, and other issues for the Islamic Center.” (Compl. ¶136.) As

another example, AUCC alleges that “the Defendants” have refused to grant it a

temporary certificate of occupancy (Id. ¶119), and that “the Defendants” denied

its request to build an ADA-compliant ramp and a round-about for safe

daycare drop-off. (Id. ¶142.)

While “[i]t may at times be appropriate and convenient for a pleading to

use the short-hand term ‘Defendants,’” it is impermissible to do so where, as

here, a complaint names 14 separate defendants (exclusive of John Doe

defendants), who occupied different positions and had distinct roles in the

alleged misconduct. Falat, 2013 WL 1163751, at *3. In such circumstances,

the plaintiffs “cannot merely state that ‘Defendants did x,’—they must

specifically allege which Defendants engaged in what wrongful conduct.” See id.

Otherwise, the defendants and the court are left to guess.

Similarly, every one of the complaint’s fourteen counts is asserted

against the “Defendants” as a group. Given that each count incorporates by

reference every allegation already made in the complaint (e.g., Compl. ¶278

(“Plaintiffs re-allege and incorporate herein by reference all paragraphs as if

alleged herein.”), it is unclear not only which defendants AUCC seeks relief

from on each count, but which factual allegations are intended to support each

claim for relief.

“It is not the Court's job,” or the defendants’, for that matter, “to

laboriously search the Complaint for factual assertions that could, in theory, be

used to support one legal claim or another.” Falat, 2013 WL 1163751, at *3.

Nor is it the responsibility of the defendants or the court to identify which

claims are being raised against which defendants. The complaint must clearly

spell out which legal claims are asserted against whom and which factual

allegations support each of those claims. Without such specificity, the

requirements of Fed. R. Civ. P. 8(a) are not met.

These are the kinds of pleading deficiencies that may often be easily

remedied by amendment, and insistence on clarity at this early stage will reap

benefits later on. Accordingly, I will dismiss the amended complaint without

prejudice to the filing of a second amended complaint.

III. Conclusion

The motions to dismiss (DE 94, 95, 96, 97) are GRANTED and the

amended complaint is dismissed in its entirety without prejudice. An

appropriate order will issue.

Dated: November 15, 2022

/s/ Kevin McNulty

______________________________

KEVIN MCNULTY

United States District Judge