Opinion

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

THIRD AVENUE ASSOCIATES, INC.,

Plaintiff,

Civil Action No. 25-03794 (GC) (TJB)

v.

MEMORANDUM OPINION

HOWELL TOWNSHIP et al.,

Defendants.

CASTNER, District Judge

THIS MATTER comes before the Court upon Defendant Howell Township’s Motion to

Dismiss Plaintiff Third Avenue Associates, Inc.’s Complaint (ECF No. 1) pursuant to Federal Rule

of Civil Procedure (Rule) 12(b)(6). (ECF No. 11.) Plaintiff opposed the Motion. (ECF No. 13.)

Howell Township did not file a reply. The Court has carefully reviewed the parties’ submissions

and decides the matter without oral argument pursuant to Rule 78(b) and Local Civil Rule 78.1(b).

For the reasons set forth below, and other good cause shown, Howell Township’s Motion is

GRANTED.

I. BACKGROUND

A. Factual Background1

Plaintiff is the contract purchaser of approximately 10.25 acres of mostly wooded,

undeveloped land in Howell Township. (ECF No. 1 ¶¶ 8, 10.) Plaintiff seeks to develop the land

1 On a motion to dismiss under Rule 12(b)(6), the Court must accept all facts as true, but

courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotations omitted).

into a Jewish cemetery. (Id. ¶¶ 12, 28.) On July 18, 2023, the governing body of Howell Township

adopted a resolution consenting to the establishment of a licensed cemetery on the property. (Id.

¶ 9.)2 Having obtained the consent of Howell Township, Plaintiff thereafter sought approval for

its proposed cemetery project from the Township of Howell Zoning Board (the Zoning Board).

(Id. ¶ 12.) Plaintiff’s application included requests for several variances and design waivers. (Id.

¶¶ 13-24.)3

The Zoning Board held public hearings in July 2024 and February 2025. (Id. ¶ 25.)

Plaintiff’s representative testified that burials at the proposed cemetery would be done in

accordance with Jewish laws, including by conducting “natural burials,” (i.e., without the use of

embalming fluids, vaults, or other chemical preservation). (See id. ¶¶ 27-30, 36.) Several experts

also testified in support of Plaintiff’s application. A toxicologist and water monitoring expert

“acknowledged the presence of risks but concluded that the remote risk of contamination to water

and residential wells” near the site of the proposed cemetery was “minimal and of no concern.”

(Id. ¶ 33.) Another expert, a licensed professional planner, testified that the proposed cemetery

would “promote[] the general welfare,” and that “the benefits outweigh[ed] the detriments.” (Id.

¶ 32.)

At the hearing, “[o]bjectors and [Zoning B]oard members expressed concern over the

absence of burial vaults and the potential for contamination from natural decomposition.”

(Id. ¶ 39.) According to Plaintiff, the Zoning Board’s skepticism of natural burials “was not based

2 New Jersey law provides that “[a] cemetery shall not be established or enlarged in any

municipality without first obtaining the consent of the municipality by resolution.” N.J. Stat. Ann.

§ 45:27-25(a).

3 The property at issue is located at Block 219, Lot 13 on the Howell Township tax map.

(ECF No. 1 ¶ 8.)

on competent scientific proof of harm, but rather on speculative concerns.” (Id. ¶ 40.) Plaintiff

also alleges that in considering Plaintiff’s application, the Zoning Board “relied upon information

obtained outside of the formal hearing record.” (Id. ¶ 41.) And despite Howell Township having

passed a resolution consenting to the establishment of a cemetery on the property, the Zoning

Board found the resolution “did not confer any weight.” (Id. ¶¶ 9, 43.)

The Zoning Board ultimately denied Plaintiff’s application, “finding that the proposed use

was not inherently beneficial, that the use does not promote the public good, and that the site was

not particularly suitable due to residential wells.” (Id. ¶ 48.)

B. Procedural Background

On May 3, 2025, Plaintiff filed its seven-count Complaint naming Howell Township and

the Zoning Board as Defendants. (Id.) In Count One, Plaintiff alleges a violation of the Religious

Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. (RLUIPA).4 In

Counts Two through Seven, Plaintiff alleges that the Zoning Board erred in various ways:

“Arbitrary, Capricious, and Unreasonable Denial” (Count Two); “Board Erred in Denying

Cemetery Use Where Governing Body Consented by Resolution” (Count Three); “Board Erred in

Denying Religious Cemetery Use Where Governing Body Consented by Resolution” (Count

Four); “Improper Reliance on Evidence Outside the Record” (Count Five); “Improper Legal

Guidance Regarding Governing Body Consent” (Count Six); and “Improper Request for

Additional Documentation During Deliberations” (Count Seven). Among other relief, Plaintiff

seeks compensatory and punitive damages, reversal of the Zoning Board’s denial of its application,

and attorneys’ fees and costs.

4 The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1367.

On June 12, 2025, Howell Township filed the instant Motion to Dismiss. (ECF No. 11.)

That same day, the Zoning Board filed an Answer. (ECF No. 12.)

II. LEGAL STANDARD

A. Rule 12(b)(6)

On a motion to dismiss for failure to state a claim upon which relief can be granted, courts

“accept the factual allegations in the complaint as true, draw all reasonable inferences in favor of

the plaintiff, and assess whether the complaint and the exhibits attached to it ‘contain enough facts

to state a claim to relief that is plausible on its face.’” Wilson v. USI Ins. Serv. LLC, 57 F.4th 131,

140 (3d Cir. 2023) (quoting Watters v. Bd. of Sch. Dirs. of Scranton, 975 F.3d 406, 412 (3d Cir.

2020)). “A claim is facially plausible ‘when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”

Clark v. Coupe, 55 F.4th 167, 178 (3d Cir. 2022) (quoting Mammana v. Fed. Bureau of Prisons,

934 F.3d 368, 372 (3d Cir. 2019)). When assessing the factual allegations in a complaint, courts

“disregard legal conclusions and recitals of the elements of a cause of action that are supported

only by mere conclusory statements.” Wilson, 57 F.4th at 140 (citing Oakwood Lab’ys LLC v.

Thanoo, 999 F.3d 892, 904 (3d Cir. 2021)). The defendant bringing a Rule 12(b)(6) motion bears

the burden of “showing that a complaint fails to state a claim.” In re Plavix Mktg., Sales Pracs. &

Prod. Liab. Litig. (No. II), 974 F.3d 228, 231 (3d Cir. 2020) (citing Davis v. Wells Fargo, 824 F.3d

333, 349 (3d Cir. 2016)).

In deciding a Rule 12(b)(6) motion, the court can only consider “the complaint, exhibits

attached to the complaint, matters of public record, as well as undisputedly authentic documents

if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223,

230 (3d Cir. 2010). A court may also consider any document “integral to or explicitly relied upon

in the complaint” when ruling on a motion to dismiss. In re Burlington Coat Factory Sec. Litig.,

114 F.3d 1410, 1426 (3d Cir. 1997).

III. DISCUSSION

The parties dispute whether the Complaint contains any plausible allegations against

Howell Township. The Court considers this argument first with regard to Plaintiff’s claims seeking

reversal of the Zoning Board’s decision, and second with regard to Plaintiff’s RLUIPA claim.

A. Reversal of the Zoning Board’s Application Denial (Counts Two through

Seven)

Plaintiff brings six separate claims seeking reversal of the Zoning Board’s denial of

Plaintiff’s application. Howell Township argues that Plaintiff fails to state a claim against it

because Plaintiff’s Complaint “contains no allegations of harm by the Township.” (ECF No. 11-1

at 4.5) According to Howell Township, the factual allegations in the Complaint make clear that

“the Township’s involvement in this matter occurred prior to the Zoning Board application.” (Id.)

Howell Township further argues that it should be dismissed because zoning boards are distinct

entities from municipal governing bodies, such that they exercise power “separate and apart from

a municipal governing body.” (Id. at 8.)

In opposition, Plaintiff disputes that Howell Township and the Zoning Board are distinct

legal entities. Plaintiff asserts that under New Jersey’s Municipal Land Use Law, N.J. Stat.

Ann. § 40:55D-1 et seq., “zoning boards of adjustment are created by ordinance, populated by

appointees of the governing body, and empowered solely through the municipality’s legislative

authority.” (ECF No. 13 at 16.) Thus, Plaintiff contends that the claims against Howell Township

are adequately pled because the Zoning Board acts as an instrumentality of Howell Township. (Id.

5 Page numbers for record cites (i.e., “ECF Nos.”) refer to the page numbers stamped by the

Court’s e-filing system and not the internal pagination of the parties.

at 17.) Plaintiff also asserts that Count Four—which seeks reversal of the Zoning Board’s decision

for failure to give proper weight to Howell Township’s resolution consenting to the establishment

of the cemetery—“was intended to assert liability against the Township in its role as the governing

body.” (Id.) However, Plaintiff concedes that “the original Complaint may have framed this count

primarily in terms of the Board’s conduct,” and Plaintiff states that it will file an amended

complaint. (Id.)

In New Jersey, “the authority to regulate land use is exercised by three separate municipal

bodies: the governing body, the planning board, and the zoning board of adjustment.” Matthews

v. Ehrmann, 2019 WL 692127, at *5 (N.J. Super. Ct. App. Div. Feb. 20, 2019) (emphasis added).

“Generally, the governing body establishes ordinances, the planning board creates an overall plan

for the municipality, and the zoning board of adjustment reviews individual permit applications

and grants or denies variances from the ordinances.” Id.

As relevant here, “zoning boards are independent quasi-judicial administrative bodies, and

their powers are authorized by statute.” 1840 P. Cheeseman Rd., LLC v. Twp. of Gloucester Zoning

Bd. of Adjustment, Civ. No. 16-01680, 2016 WL 7325470, at *4 (D.N.J. Dec. 16, 2016) (citing

Endreson v. Dover Twp. Zoning Bd. of Adjustment, 2009 WL 1066053, at *5 (N.J. Super. Ct. App.

Div. 2009)). Thus, courts have found that “zoning boards are ‘entities independent of the

governing body of the municipality.’” Id. (citing Lehrhaupt v. Flynn, 356 A.2d 35, 45 (N.J. Super.

Ct. App. Div. 1976), aff’d, 383 A.2d 428 (N.J. 1978)); see also Rogoff v. Tufariello, 255 A.2d 781,

784 (N.J. Super. Ct. App. Div. 1969) (“It is well established that a board of adjustment is an

independent administrative body, . . . whose powers stem directly from the zoning statute.”)

(internal citation omitted); Sansone Oldsmobile-Cadillac, Inc. v. Bd. of Adjustment of Borough of

Shrewsbury, 511 A.2d 748, 751 (N.J. Super. Ct. Law. Div. 1986) (“[A] zoning board of adjustment

is an independent administrative body acting in a quasi-judicial capacity.”); DeLuca v. Kahr Bros.,

407 A.2d 1285, 1287 (N.J. Super. Ct. Law. Div. 1979) (“[I]t must be recognized that each of the

defendant entities involved in the pending motion is autonomous. Once appointed by the township

governing body, the planning board and zoning board operate independently.”); Piscitelli v. Twp.

Comm. of Scotch Plains Twp., 248 A.2d 274, 277 (N.J. Super. Ct. Law. Div. 1968) (“In the exercise

of the powers conferred by the statute and the ordinance, the zoning board is not the agent of the

local governing body.”). It follows that “without any separate involvement with the events giving

rise to a plaintiff’s claims against a zoning board, a municipality cannot be held liable for the acts

of the zoning board.” 1840 P. Cheeseman Rd., 2016 WL 7325470, at *4.

Here, Plaintiff’s Complaint lacks any allegations of wrongful conduct undertaken by

Howell Township. New Jersey law provides that “[a] cemetery shall not be established or enlarged

in any municipality without first obtaining the consent of the municipality by resolution.” N.J.

Stat. Ann. § 45:27-25(a). The Complaint simply alleges that Howell Township approved such a

resolution. (See ECF No. 1 ¶¶ 9, 67.) Plaintiff challenges the Zoning Board’s subsequent denial

of Plaintiff’s application. (See, e.g., id. ¶¶ 65-69.) But Plaintiff does not allege that Howell

Township or its employees committed any wrongdoing in connection with the Zoning Board’s

denial. And, the denial of Plaintiff’s application was within the jurisdiction of the Zoning Board—

not Howell Township. See Najduch v. Twp. of Indep. Plan. Bd., 985 A.2d 663, 668 (N. J. Super.

Ct. App. Div. 2009) (“Where a use is not permitted by the zoning ordinance, [New Jersey law]

permits applicants to seek use variances from the board of adjustment. . . . This power is

exclusive. . . .”) (internal citation omitted); see also Abel v. Bd. of Works of City of Elizabeth, 164

A.2d 764, 772 (N.J. Super. Ct. App. Div. 1960) (noting that zoning boards are “invested with sole

jurisdiction to grant an exception or a variance” under New Jersey law).

At bottom, the Complaint provides no basis upon which Howell Township can be held

liable for the Zoning Board’s alleged errors in denying Plaintiff’s application. Cf. 1840 P.

Cheeseman Rd., 2016 WL 7325470, at *4 (allowing complaint to proceed against both the

township and the zoning board where the plaintiffs “alleged wrongs perpetrated by the [t]ownship

itself, separate from and in concert with the [z]oning [b]oard.”).

Accordingly, Counts Two through Seven are dismissed without prejudice as to Howell

Township.

B. RLUIPA (Count One)

Plaintiff also seeks damages and declaratory and injunctive relief under RLUIPA.

“Congress passed RLUIPA upon finding that local zoning boards would use ‘vague and universally

applicable reasons,’ such as traffic or aesthetics, to contrive widespread discrimination on the basis

of religion.” Islamic Soc’y of Basking Ridge v. Twp. of Bernards, 226 F. Supp. 3d 320, 341 (D.N.J.

2016). Among other things, RLUIPA “prohibits land use regulations that substantially burden the

exercise of religion unless the government action can survive a strict scrutiny analysis.” Id.

Plaintiff alleges that the Zoning Board’s denial of its application was “rooted in

disapproval of Plaintiff’s religiously mandated burial method,” and that such denial “has imposed

a substantial burden on Plaintiff’s religious exercise by preventing the development of a religious

cemetery aligned with these practices.” (ECF No. 1 ¶¶ 52-53.) Further, Plaintiff asserts that “[t]he

[Zoning] Board’s rejection of non-vaulted natural burial practices, absent scientific evidence of

harm or proof of environmental risk, contravenes RLUIPA’s prohibition on substantial burdens

imposed without sufficient justification.” (Id. ¶ 55.) Howell Township is not specifically

referenced in Count One, although one allegation states that “Defendants” failed to demonstrate

“any compelling governmental interest advanced by the denial, nor that denial was the least

restrictive means of achieving such an interest.” (Id. ¶ 54.)

Howell Township moves to dismiss Plaintiff’s RLUIPA claim for similar reasons as

Plaintiff’s state law claims. Specifically, Howell Township argues that the allegations in the

Complaint show that the Township did “precisely what Plaintiff asked [it] to do – it agreed to a

cemetery subject to Zoning Board approval.” (ECF No. 11-1 at 9.) Howell Township also asserts

that although “the prohibition in RLUIPA on government implementation of land use regulations

is cited, the Township did not impose or implement any such regulations against” Plaintiff. (Id.)

Plaintiff counters that Howell Township “is the only legally cognizable

defendant . . . because it is the municipal entity with both the legal authority to implement land use

policies and the financial capacity to remedy violations of federal law.” (ECF No. 13 at 15.)

Plaintiff contends that the “Zoning Board—comprised of appointed, unpaid volunteers—has

neither the financial authority nor the legal capacity to satisfy a judgment.” (Id. at 14.) Plaintiff

also argues that Howell Township should remain in this case under the plain language of RLUIPA.

(Id. at 13-14.) Nevertheless, Plaintiff acknowledges that this case “appears to present a matter of

first impression in New Jersey: whether both the zoning board of adjustment and the municipality

must be named in an action challenging a land use denial involving religious rights.” (Id. at 11.)

According to Plaintiff, Khan v. City of Paterson, Civ. No. 17-5006, 2019 WL 1552679

(D.N.J. Apr. 9, 2019), is the “only case that [Plaintiff] could find that addresses in any way whether

the municipality itself is liable for the acts of its land use board.” (ECF No. 13 at 5.) Plaintiff

characterizes Khan as involving an issue “very similar to the issue here, although somewhat in

reverse.” (Id.) In Khan, members of a board of adjustment brought civil rights claims against the

board and the city for allegedly harassing and removing them from the board based on their

religion. 2019 WL 1552679, at *1. Noting that “[a]dministrative arms of a municipality and the

municipality itself are treated as a single entity for purposes of [42 U.S.C.] § 1983,” the court

dismissed the board from the suit. Id. at *2. Although the plaintiffs argued that the board and the

city were separate entities, the court noted that the plaintiffs failed to cite any legal authority to

support that proposition. Id.

The Court finds that Khan is distinguishable from this case. First, Khan involved claims

under 42 U.S.C. § 1983, and thus Plaintiff acknowledges that the “arm of the city” doctrine applied

in Khan is “slightly peripheral in an academic sense to the issue here because it relates to whether

a subordinate governmental entity benefits from the immunities that the official governmental

entity enjoys.” (ECF No. 13 at 12.) Howell Township has not argued that it is immune—it simply

argues that Plaintiff’s Complaint contains no allegations against it. (See generally ECF No. 11-1.)

As a result, the Court is unpersuaded that Khan supports the broad proposition Plaintiff asks the

Court to adopt—that the “master governmental entity is the one that is responsible and is the proper

defendant in various forms of liability.” (ECF No. 13 at 12.) Second, the plaintiffs in Khan failed

to support their arguments concerning the independence of zoning boards under New Jersey law.

2019 WL 1552679, at *2. But as noted above, another court in this district has explained that

“without any separate involvement with the events giving rise to a plaintiff’s claims against a

zoning board, a municipality cannot be held liable for the acts of the zoning board.” 1840 P.

Cheeseman Rd., LLC, 2016 WL 7325470, at *4. The Court is unpersuaded that this statement

should not apply with equal force when religious rights are at issue. Third, while the plaintiffs in

Khan failed to successfully state a claim, the plaintiffs had attempted to allege wrongdoing on the

part of the city itself. 2019 WL 1552679, at *2-3. That stands in contrast with Plaintiff’s

Complaint, which contains no allegations of wrongdoing by Howell Township. (See generally

ECF No. 1.) At bottom, the Court finds that Khan does not support Plaintiff’s position.

Plaintiff also fails to support its argument that Howell Township must remain a party based

on the plain language of RLUIPA. In relevant part, RLUIPA provides that “[n]o government shall

impose or implement a land use regulation in a manner that imposes a substantial burden” on

religious exercise. 42 U.S.C. § 2000cc-1(a)(1). The statute further defines “government” as “a

State, county, municipality, or other governmental entity created under the authority of a State.”

42 U.S.C. § 2000cc-5(4). Although Plaintiff argues that Howell Township “is the governmental

‘entity’, and its board is included under that definition,” (ECF No. 13 at 13), Plaintiff does not

explain why the Zoning Board is not some “other governmental entity created under the authority

of a State.” See Silverman Grp. v. Morristown Plan. Bd., 2023 WL 2997949, at *5 (N.J. Super.

Ct. App. Div. Apr. 19, 2023) (“Because they are created by statute, planning and zoning boards

may exercise only those powers granted by statute.”) (citation modified).

Indeed, courts have noted that a zoning board may be liable under RLUIPA (and other civil

rights statutes). See Adam Cmty. Ctr. v. City of Troy, 381 F. Supp. 3d 887, 897 (E.D. Mich. 2019)

(“Defendants similarly fail to identify a single authority for the proposition that a city council or

municipal board cannot be sued for alleged RLUIPA violations. Such an argument stands in

contrast to the litany of cases against municipal entities alleging constitutional violations or claims

under RLUIPA.”) (emphasis added) (collecting cases); see also Jodeco, Inc. v. Hann, 674 F. Supp.

488, 499 (D.N.J. 1987) (finding that while individual members of a zoning board were immune

from the plaintiffs’ § 1983 claims, neither the zoning board nor the city were immune); Schiazza

v. Zoning Hearing Bd., Fairview Twp., York Cnty., Pa., 168 F. Supp. 2d 361, 373 (M.D. Pa. 2001)

(finding that a zoning board was an entity capable of being sued under § 1983). Again, since

Plaintiff’s factual allegations are directed solely towards the alleged misconduct of the Zoning

Board, the Court finds no basis to hold Howell Township liable. See 1840 P. Cheeseman Rd., 2016

WL 7325470, at *4. And Plaintiff provides no legal basis upon which the Court could conclude

that a judgment against the Zoning Board could not provide Plaintiff relief.

Accordingly, Count One of Plaintiff’s Complaint is dismissed without prejudice as against

Howell Township.

T¥. CONCLUSION

For the foregoing reasons, and other good cause shown, Howell Township’s Motion to

Dismiss (ECF No. 11) is GRANTED. Plaintiff will be granted leave to file an Amended

Complaint within thirty days to the extent it can cure the deficiencies identified herein. An

appropriate Order follows.

Dated: January _“_, 2026 Fons by har

GEORGETEE CASTNER

Yrytrn STATES DISTRICT JUDGE

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