Anash Inc v. Borough of Kingston

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

No. 25-1097

ANASH, INC. d/b/a Wyoming Valley Yeshiva;

RABBI SHIMON HELLINGER, individually and in

his capacity as an authorized representative of

Wyoming Valley Yeshiva and relevant

community members,

Appellants

v.

BOROUGH OF KINGSTON a/k/a Municipality of

Kingston; DAVID R. YEFKO, individually and in

his capacity as Zoning Officer for the

Municipality of Kingston; ROBERT SUCHOSKI,

individually and in his capacity as Code

Enforcement Officer for the Municipality of

Kingston

_____________________________

On Appeal from the U.S. District Court, M.D. Pa.

Judge Karoline Mehalchick, No. 3:24-cv-01955

Before: RESTREPO, PHIPPS, and MASCOTT, Circuit Judges

Argued: Jan. 22, 2026; Filed: July 30, 2026

_____________________________

OPINION OF THE COURT

PHIPPS, Circuit Judge.

After receiving complaints, a municipality investigated two

buildings located in a commercially zoned district for

violations of the municipality’s building code and its zoning

ordinance. Both buildings were owned by a Jewish rabbi. One

was used as a residence for boys and young men who were

studying and practicing their faith under the rabbi’s tutelage.

The other contained his office as well as rooms for prayer,

religious study, and religious instruction. The municipality

issued two notices of zoning-ordinance violations for each

property on the grounds that those uses were not permitted in

commercial districts. Then, on the day before Rosh Hashanah,

it obtained administrative search warrants, inspected the

properties, and immediately condemned them. The

municipality then refused to allow occupancy until the

buildings were compliant with both the building code and the

zoning ordinance. And although it recognized that there was

no quick or easy way to bring at least one of the buildings into

compliance with the zoning ordinance, the municipality

threatened fines of $500 for each day of non-compliance.

The rabbi and his congregation sued the municipality along

with its zoning and code enforcement officers on several

grounds in the District Court. Among their grievances were

multiple claims under RLUIPA, the Religious Land Use and

Institutionalized Persons Act of 2000, Pub. L. No. 106–274,

114 Stat. 803 (codified at 42 U.S.C. §§ 2000cc–2000cc-5).

Relying primarily on the RLUIPA claims, the rabbi and his

congregation moved for a preliminary injunction to allow them

to access and use the properties and to be free from

enforcement actions during the pendency of their suit. The

District Court denied that motion.

The rabbi and his congregation then initiated this

interlocutory appeal to challenge that order. For the reasons

below, we will REVERSE its order denying preliminary

injunctive relief and REMAND for further proceedings

consistent with this Opinion.

2

FACTUAL BACKGROUND

A. Kingston’s Zoning Laws Before 2023

The Municipality of Kingston is located in Luzerne County,

Pennsylvania, on the northwestern bank of the Susquehanna

River across from Wilkes-Barre.1 It has a land area of

2.15 square miles or 1376 acres. One of the principal arterial

roadways in Kingston is Pierce Street, which is approximately

one mile long and runs from its intersection with U.S. Route 11

(Wyoming Avenue) to its transition into the Veterans

Memorial Bridge, which crosses the Susquehanna.

Under the zoning ordinance adopted by Kingston’s Town

Council on July 11, 1977, some of the parcels abutting Pierce

Street were zoned as C-2 Districts. Those districts, also

referred to as ‘Community Commercial’ Districts, permitted

major retail establishments. Kingston, Pa., Mun. Code § 181-9

(1977). In addition, under the 1977 Zoning Ordinance, all uses

permitted in C-1 Districts, referred to as ‘Neighborhood

Commercial’ Districts, were permitted in C-2 Districts. Id.

Thus, because business and professional offices were

authorized in C-1 Districts, they were allowed in C-2 Districts.

Also permitted in C-1 Districts, and by extension in C-2

Districts, were ‘public uses,’ such as public schools, id.

§ 181-8, as well as ‘semi-public uses,’ defined as “[c]hurches,

Sunday schools, parochial schools, colleges, hospitals and

other institutions of an educational, religious, charitable or

1

Before it enacted a home rule charter that went into effect in

January 1976, see In re Petition to Recall Reese, 665 A.2d

1162, 1163 (Pa. 1995), Kingston was a borough, but with the

home rule charter, it became a municipality. See generally

1 Pa. Cons. Stat. § 1991 (defining ‘municipality’ as

encompassing but not being coextensive with a ‘borough’);

8 Pa. Cons. Stat. § 101.1 (same). Despite that formal

designation, Kingston still refers to itself as a borough. See,

e.g., The Borough of Kingston Home Page,

https://kingstonpa.org/ (last visited May 8, 2026).

3

philanthropic nature,” id. C-2 Districts were similarly

inclusive of uses permitted in residential districts: any use

authorized in a residential district was also allowed in a C-2

District. See id. § 181-12(B)–(C). And because single-family

dwellings were permitted in residential districts, they were

allowed in C-2 Districts. Id. § 181-8 (defining a ‘single-family

dwelling’ as “[a] detached building designated for or occupied

exclusively by one family and containing not more than one

dwelling unit”).

B. Rabbi Hellinger Founds the Wyoming Valley

Yeshiva in Kingston

An Orthodox Jewish rabbi, Shimon Hellinger, acquired

property in Kingston for his congregation, the Wyoming

Valley Yeshiva, which was formally incorporated as Anash,

Inc. In 2019, he purchased for $45,000 a property at 239 Pierce

Street in a C-2 District that included a house and 0.07 acres of

land. He received a certificate of occupancy from Kingston for

the property as a single-family dwelling. That certificate

indicated that single-family use was a conforming use within a

C-2 District and cautioned that “[a]ny changes in the use and

occupancy as designated above without approval of the Zoning

Administrator will automatically render this certificate null and

void.” Certificate of Occupancy (JA218). Rabbi Hellinger

used the house for religious group living for about ten

Orthodox Jewish young men who were his students and

members of his congregation and who used the property for

religious purposes such as group prayer. The residents did not

have to pay monthly rent, but some offered donations to offset

costs.

In 2021, Rabbi Hellinger purchased another property about

a tenth of a mile away, also in a C-2 District, for $134,000.

That 0.16-acre parcel, located at 44 Pierce Street, included a

two-story building with a small parking area in back. The

certificate of occupancy described its use as an “office space”

and also included the same admonition about changes in use

rendering the certificate null and void. Zoning Occupancy

4

Certificate (JA217). After acquiring this property, Rabbi

Hellinger used it for his rabbinical office, and also as a yeshiva

– a space devoted to prayer, religious study, and religious

instruction.

C. The Repeal and Replacement of the 1977

Zoning Ordinance

In 2023, Kingston hired consultants to design a new

comprehensive zoning ordinance. As explained by the chief

consultant, the 1977 Zoning Ordinance was “substandard and

not up to what the best practices are,” Kingston Pub. Hr’g

Tr. 20:23–24 (Mar. 6, 2023), so he proposed a “rewrite of [the]

entire [o]rdinance,” id. at 18:11–12.

Once prepared, the draft of the new ordinance, referred to

herein as the ‘2023 Zoning Ordinance,’ was subject to a public

comment period. During that review, the 2023 Zoning

Ordinance was discussed at a Town Council meeting on

March 6, 2023.

Kingston’s Zoning Officer spoke at that public meeting to

address “the key zoning map changes.” Id. at 14:3–4. He

identified some of the revisions that were designed to “ensure

that the entire property of each of the[] lots” abutting Pierce

Street were zoned commercial. Id. at 14:17–18.

The consultant who drafted the 2023 Zoning Ordinance

also spoke at the meeting. He explained that the 2023 Zoning

Ordinance created three classes of permitted use: “by right,

special exception or conditional use.” Id. at 21:20. A use

permitted by right in a zoning district would not require any

further approval. A use permitted by special exception would

require approval from the Kingston Zoning Hearing Board.

And because conditional use was reserved for “such

importance, a one-of-a-kind type of use,” it would be permitted

in a zoning district only upon approval by the Kingston Town

Council. Id. at 22:15–16.

5

That framework differed from the prior zoning ordinance’s

use of an inclusive approach in which every use permitted in

C-1 Districts or in residential districts would be permitted by

right in C-2 Districts. Consistent with its new method, the

2023 Zoning Ordinance included a table that indicated, for

each zone, whether a use would be permitted by right, by

special exception, as a conditional use, or not permitted at all.

Also, compared to its predecessor, the 2023 Zoning

Ordinance included a greater number of specifically defined

land uses. For instance, it provided that, in general, the term

‘rooming and/or boarding house’ meant “[a] residential

structure or portion thereof which contains rooms which are

rented or leased, with the occupants of said units being non-

transient, and utilizing said location as a legal place of

residence.” Municipality of Kingston, Pa., Zoning Ordinance

§ 203 (2023). That general definition was subject to specific

inclusions and exclusions, and one of the specific exclusions

stated that rooming houses did not include dormitories. See id.

Other than that reference to dormitories, however, the

proposed zoning ordinance did not mention, much less define,

the term ‘dormitory.’2 The 2023 Zoning Ordinance also

defined the term ‘school’ as dependent on state licensure: “[a]

facility that provides a curriculum of elementary and secondary

academic instruction, including kindergartens, elementary

schools, junior high schools, and high schools that are licensed

by the State and including schools which provide trade or

vocational training.” Id. (emphasis added).

On May 1, 2023, Kingston approved the 2023 Zoning

Ordinance. Its combination of a new zoning scheme and

revised definitions had a transformative impact on permitted

uses in C-2 Districts. Single-family dwellings (redefined as

2

At the time, other zoning codes besides Kingston’s had made

references to the term ‘dormitory,’ and it had also been defined

in other building codes. E.g., 2021 International Zoning Code

§ 202; 2021 International Building Code § 202.

6

‘one-family dwelling units’) and rooming houses were non-

permitted uses in C-2 Districts. Similarly, although both public

schools and parochial schools were previously permitted in

C-2 Districts (as public uses and semi-public uses,

respectively), ‘schools,’ as defined by the 2023 Zoning

Ordinance, were not permitted in C-2 Districts as of right but

rather were allowed only as conditional uses.

The degree of disruption from those and other changes was

reduced because the 2023 Zoning Ordinance included

grandfathering clauses. Under those provisions, uses of

property, referred to as ‘nonconforming uses’ that were

“lawfully in existence prior to the enactment of such

ordinance,” could be continued through a Certificate of

Nonconformance issued by the Zoning Officer. Id. The

2023 Zoning Ordinance generally limited the nonconforming-

use approval to a prior nonconforming use – such a prior use

could not justify a new, different nonconforming use on the

same property. Id. §§ 904, 907. But if a property subject to a

nonconforming-use exception was condemned, it had to be

restored “in conformity with uses permitted within the Zoning

District in which such structure is located.” Id. § 910.4.

D. Enforcement of the 2023 Zoning Ordinance

with Respect to the Pierce Street Properties

A few months after the 2023 Zoning Ordinance took effect,

a neighbor repeatedly complained to a member of the Town

Council that the 239 Pierce Street property was being used as

a dormitory and had “unsupervised young men living there.”

Prelim. Inj. Hr’g Tr. 108:15 (JA152). Kingston’s Municipal

Solicitor thought “it was important to take care of this problem

for Kingston.” Id. at 108:17–18 (JA152).

Kingston then began to address those issues. In September,

Kingston’s Code Enforcement Officer wrote to Rabbi

Hellinger with a request to discuss “several complaints and

concerns” that the 239 Pierce Street property was in violation

of Kingston’s Municipal Code and its Fire Code, collectively

7

referred to herein as the ‘Building Code.’ Letter from Robert

Suchoski, Code Enforcement Officer, Municipality of

Kingston, to Rabbi Hellinger (Sep. 13, 2023) (SA41); cf.

Kingston, Pa., Mun. Code §§ 60, 94, 116, 135. And in an

October 4 letter to Rabbi Hellinger’s attorney, the Municipal

Solicitor opined that the use of the 239 Pierce Street property

“as a dormitory is entirely illegal.” Letter from Harry P.

Mattern, Municipal Solicitor, Municipality of Kingston, to

David Schwager, Attorney for Rabbi Hellinger (Oct. 4, 2023)

(JA208). He further communicated that he did not “see any

way under the [2023 Zoning Ordinance] to quickly or easily

expand the use beyond that which has previously existed as a

single family residence.” Id. (JA209).

Rabbi Hellinger met with the Code Enforcement Officer

and the Municipal Solicitor later in October. During that

meeting, he described the religious practices of his

congregation, and he explained how he was using the property.

He perceived, however, that “there was no interest on their part

to try to work something out. They were just trying to get us

to stop and shut down.” Prelim. Inj. Hr’g Tr. 38:15–17 (JA82).

In correspondence dated March 19, 2024, the Municipal

Solicitor asked for a second meeting. The stated purpose of

that meeting was Building Code compliance, including a

request for inspection. Rabbi Hellinger and his attorney met

with the Municipal Solicitor, but Rabbi Hellinger was not

willing to permit Kingston to inspect the 239 Pierce Street

property.

On April 4, 2023, Kingston’s Zoning Officer issued a

Notice of Violation to Rabbi Hellinger for 239 Pierce Street. It

stated that the property was being used impermissibly as a

“rooming/boarding house,” which was not a permitted use in a

C-2 District under the 2023 Zoning Ordinance, and it ordered

him “to cease and desist the illegal use.” Notice of Violation –

239 Pierce St. (JA204). The notice also stated that “[t]here will

not be any follow-up requests regarding this situation,” and

8

that failure to comply within five business days would result in

the issuance of a citation. Id. (JA205).

That notice also outlined a process for Rabbi Hellinger to

bring his use of 239 Pierce Street into compliance with the

2023 Zoning Ordinance through the grandfathering provisions.

According to the Zoning Officer, Rabbi Hellinger would have

to apply to change 239 Pierce Street from “one nonconforming

use to another nonconforming use.” Id. (JA204). The Zoning

Officer forecasted that he would deny that application upon

receiving it, but then Rabbi Hellinger could apply for a Special

Exception from the Kingston Zoning Hearing Board. Id.

(JA204).

The next week, Kingston turned its attention to 44 Pierce

Street. On April 11, 2023, it issued a Notice of Violation for

that property, which declared that the property was being used

impermissibly as a ‘school.’ Because that was not an approved

conditional use in a C-2 District, it ordered Rabbi Hellinger to

cease and desist that use. As with the notice for 239 Pierce

Street, this notice outlined a process under the grandfathering

provisions for Rabbi Hellinger to bring his use of 44 Pierce

Street into zoning compliance.

After receiving those notices, Rabbi Hellinger did not

follow the processes proposed by the Zoning Officer, and he

continued to use the properties as he had been.

On August 22, 2024, Kingston issued Second Notices of

Violation for each property. Those notices declared that the

properties were being used illegally and, after recounting that

Rabbi Hellinger had refused to allow inspection of the

properties for Building Code violations, ordered that he

immediately cease and desist occupancy of them. The notice

for 239 Pierce Street changed the basis for the zoning

infraction; instead of claiming that the property was being

improperly used as a rooming/boarding house, it announced

that the property was being illegally used as a ‘dormitory’ – a

9

term not defined in the 2023 Zoning Ordinance. The notice for

44 Pierce Street relied on the same ground as before, the

assertion that the property was being used as a school.

Both notices emphasized that “[t]he Municipality of

Kingston reserves the right to pursue any and all legal options

afforded to them until you comply with this order.” 2d Notice

of Violation – 239 Pierce St. (JA206); 2d Notice of Violation

– 44 Pierce St. (SA82). Both notices further indicated that

“[c]itations have already been filed with the district

Magistrate’s Office.” 2d Notice of Violation – 239 Pierce St.

(JA206); 2d Notice of Violation – 44 Pierce St. (SA82). The

citation amount was $500, the maximum permitted, and each

notice indicated that Kingston would be issuing new citations

“on a daily basis” as long as the properties remained out of

compliance with the 2023 Zoning Ordinance. 2d Notice of

Violation – 239 Pierce St. (JA206); 2d Notice of Violation –

44 Pierce St. (SA82).

Rabbi Hellinger contacted the Magistrate’s Office and

learned that “there was no citation filed,” and thus “no

opportunity . . . to appeal.” Prelim. Inj. Hr’g Tr. 25:4, 8–9

(JA69). He continued to use both properties as he had been.

E. The Issuance of Administrative Search

Warrants and the Condemnation of the

Pierce Street Properties

On October 1, 2024, the day before Rosh Hashanah, which

commences the High Holy Days, Kingston applied for four

administrative warrants to search the Pierce Street properties –

two for Building Code violations and two for non-compliance

with the 2023 Zoning Ordinance.

Kingston’s Code Enforcement Officer submitted

applications for warrants to search both properties based on

identified Building Code violations. Also, for 44 Pierce Street,

the identified violations included the allegation that a mikvah

– a pool of water used for immersion as part of a purification

10

ritual – had been “installed in the basement without any

building permit being acquired.” Code Appl. for

Administrative Search Warrant of 44 Pierce St. (D.C. ECF

No. 1-13).

Kingston’s Zoning Officer submitted the zoning-based

warrant applications for both properties. For 239 Pierce Street,

he averred that the search was justified because the property

was being maintained as “a dormitory or boarding house in a

single-family residence in a C-2 [Z]one” and because Rabbi

Hellinger did not “allow inspection for safety or Code

[c]ompliance.”3 Zoning Appl. for Administrative Search

Warrant of 239 Pierce St. (D.C. ECF No. 1-10). His

application for a warrant to search 44 Pierce Street claimed a

zoning violation of “[m]aintaining a school in a C-2 Zone,” and

cited Rabbi Hellinger’s “[f]ailure to allow inspection for safety

or Code [c]ompliance.” Zoning Appl. for Administrative

Search Warrant of 44 Pierce St. (D.C. ECF No. 1-14).4

3

Kingston’s Zoning Officer also averred under penalty of

perjury, see 18 Pa. Cons. Stat. § 4904, that Kingston “has

received numerous complaints of many young children

residing in the property. No adult supervision is observed.”

Zoning Appl. for Administrative Search Warrant of 239 Pierce

St. (D.C. ECF No. 1-10) (emphasis added). Later, however, in

the course of this litigation, Kingston produced some of the

information it acquired as part of its investigation into the uses

of the 239 Pierce Street property, and those materials included

a surveillance photo with a date stamp of April 5, 2024, of a

man wearing a hat walking with two children. And, as

explained below, when the property was searched, there were

two adults on site at the time.

4

All four warrant applications also indicated that Rabbi

Hellinger had failed to register as a landlord as separately

required by the Municipal Code. See Kingston, Pa., Mun.

Code § 116-4(A) (2014). That Code provision applies to

properties occupied by a ‘tenant,’ defined as “[a]n individual

11

A magisterial district judge authorized all four search

warrants at 9:00 a.m. that day. The Code Enforcement Officer

and the Zoning Officer, accompanied by local police and other

Kingston officials, then began to execute the warrants. They

first went to 239 Pierce Steet, and upon their arrival, they

called Rabbi Hellinger to inform him that they would break

down the door unless he let them inside. Rabbi Hellinger

provided the access code to that building, and they began the

search. They encountered two adults, whom the police did not

allow to leave the property without providing identification.

They also found unattended hot plates, trash bags in

inappropriate locations, and an exposed but capped electrical

wire extending from a hole in the ceiling in one room.

Rabbi Hellinger also granted access to 44 Pierce Street.

The search of that property found uncovered and exposed holes

in the floor of the basement from the construction of the

mikvah.

After completing the searches, Kingston condemned the

Pierce Street properties through no-occupancy orders posted

on the front doors of both properties. In large type, both orders

declared the properties “unsafe for human occupancy or use,”

and both had illegible signatures above the Code Enforcement

Officer’s title. No-Occupancy Orders (D.C. ECF Nos. 1-11,

1-15). The notice for 239 Pierce Street did not identify the

ordinance or the section of the ordinance that served as the

basis for the condemnation, but it did include the handwritten

who resides in a residential rental unit, with whom a legal

relationship with the owner/landlord is established by a lease

or by the laws of the Commonwealth of Pennsylvania.” Id.

§ 116-3. The residents of 239 Pierce Street did not, however,

have leases and did not pay rent, and there has been no alleged

other source for such an owner/landlord relationship under the

other laws of the Commonwealth of Pennsylvania. Nor was

there any mention of tenants at the 44 Pierce Street property,

which was allegedly being used as a school.

12

description, “No Sprinklers, No Fire Extinguishers, No Egress

Signage, No Emergency Lights.” No-Occupancy Order –

239 Pierce St. (D.C. ECF No. 1-11). The notice for 44 Pierce

Street likewise did not provide the ordinance and section that

permitted the condemnation, but it did include the handwritten

annotations, “No Fire Extinguishers, No Emergency Lighting,

No Egress Signage, Open Electrical Issues, Not Allowed

[Illegible] for Usage.” No Occupancy Order – 44 Pierce St.

(D.C. ECF No. 1-15). Both orders declared it unlawful to enter

or occupy the buildings after 6:00 p.m. on October 1, 2024.

Rabbi Hellinger, his students, and his congregants

complied with those orders. The condemnation of the Pierce

Street properties disrupted the congregation’s religious

observance of Rosh Hashanah and the High Holy Days.

Rabbi Hellinger’s attorney contacted the Municipal

Solicitor for Kingston to request the reopening of the Pierce

Street properties. In a letter dated November 4, 2024, the

Solicitor responded that, after discussions with the Zoning

Officer, for the Pierce Street properties to be reopened, “it will

be necessary for Rabbi Hellinger to comply with the

[2023] Zoning Ordinance.” Letter from Harry P. Mattern,

Municipal Solicitor, Municipality of Kingston, to Alexander

M. Brunelle, Attorney for Rabbi Hellinger (Nov. 4, 2024)

(JA207).

The condemnation orders have remained in effect since

their issuance. Rabbi Hellinger has not been able to “hold

regular services,” Prelim. Inj. Hr’g Tr. 36:24 (JA80), or “lead

the congregation in a group manner,” id. at 39:5 (JA83). Some

congregants have left town. See id. at 39:5–6 (JA83). Others

“go [to religious services] elsewhere or they don’t go at all.”

Id. at 40:15–16 (JA84). And while there are still those who are

“not quick to give up [their] religion because [they’re] not able

to practice, . . . most of the congregation is not engaging.” Id.

at 39:20–22 (JA83).

13

PROCEDURAL HISTORY

On November 13, 2024, Rabbi Hellinger and Anash

initiated this suit in the District Court against Kingston, its

Zoning Officer, and its Code Enforcement Officer, collectively

referred to herein as ‘the Kingston Defendants.’

Thirteen of the claims in their 21-count complaint were

based on federal law. Four of those counts were brought under

RLUIPA, specifically for violations of its substantial-burden

provision, its equal-terms provision, its nondiscrimination

provision, and its exclusions-and-limits provision. See

42 U.S.C. § 2000cc(a)(1), (b)(1)–(3). The other federal claims

included allegations of a procedural-due-process violation,5

and the complaint also contained eight counts based on

Pennsylvania law.6

On December 2, 2024, Rabbi Hellinger and Anash moved

for a temporary restraining order and a preliminary injunction

based on their RLUIPA and procedural-due-process claims.

They sought to enjoin the Kingston Defendants in three ways:

(i) from enforcing the condemnation orders for the Pierce

Street properties; (ii) from taking adverse zoning or other

enforcement actions against the Pierce Street properties

5

The remaining federal claims consisted of one other statutory

claim under the Fair Housing Act, see 42 U.S.C. § 3604(a), and

several claims based on alleged violations of constitutional

rights (free exercise, free speech, free association, equal

protection, substantive due process, unreasonable search and

seizure, and civil conspiracy to interfere with those rights).

6

Those counts alleged violations of the Pennsylvania

Constitution, see Pa. Const. art. 1, §§ 3, 7, 20, 26, the

Pennsylvania Human Relations Act, see 43 Pa. Stat. § 953, and

the Pennsylvania Religious Freedom Protection Act, see 42 Pa.

Cons. Stat. § 7103, as well as for the torts of abuse of process,

tortious interference, defamation, public disclosure of private

facts, and negligent training and supervision.

14

without constitutionally adequate process; and (iii) from

discriminating against them based on their religious practices.

In exercising federal-question jurisdiction over those

claims, see 28 U.S.C. § 1331, the District Court denied the

requested temporary restraining order and scheduled an

evidentiary hearing on the preliminary injunction. At that

hearing, Rabbi Hellinger and another rabbi testified in favor of

the requested injunctive relief, and the Municipal Solicitor for

Kingston testified on behalf of the Kingston Defendants.

On December 19, 2024, the District Court denied the

motion for preliminary relief. The accompanying

memorandum opinion explained that Rabbi Hellinger and

Anash had failed to establish either a likelihood of success on

their claims or an irreparable harm. Anash, Inc. v. Borough of

Kingston, 2024 WL 5294369, at *3 (M.D. Pa. Dec. 19, 2024).

In reaching those conclusions, the District Court emphasized

that Rabbi Hellinger and Anash “have alternative locations,

albeit imperfect ones, at which they can host religious and

educational activities.” Id. at *5. In addition, the District Court

concluded that the balance of the hardships favored the

Kingston Defendants based on their interests in avoiding a

dilution in the effectiveness of the 2023 Zoning Ordinance

through “a loophole [that] would surely result in great harm to

local governments attempting to effectuate and promote safety

and health interests.” Id. at *11. The District Court also

determined that the public interest in safety favored the

Kingston Defendants based on four unsafe conditions

associated with the Pierce Street properties: (i) “exposed

electrical wires”; (ii) “trash and hot plates that are left out in

unfit locations, accessible to children without any clear adult

supervision”; (iii) the “construction of a Mikvah . . . [in a]

basement that opens into a large hole in the ground, without

stairs, [which] could certainly be considered a danger to the

children and younger adults living there”; and

(iv) “unsupervised children and potential fire and safety

hazards.” Id. at *10–11.

15

Through a notice of appeal, Rabbi Hellinger and Anash

invoked this Court’s interlocutory appellate jurisdiction over

denials of motions for preliminary injunctive relief. See

28 U.S.C. § 1292(a)(1). In challenging the District Court’s

order, they rely on three of their RLUIPA claims – those under

the substantial-burden, the equal-terms, and the exclusions-

and-limits provisions – as well as their procedural-due-process

claim.

In February 2026, after oral argument in this case, the

United States Department of Justice commenced a civil

enforcement action against Kingston based on allegations that

the 2023 Zoning Ordinance violates RLUIPA’s equal-terms

and exclusions-and-limits provisions, see 42 U.S.C.

§ 2000cc(b)(1), (3); see also id. § 2000cc-2(f) (“The United

States may bring an action for injunctive or declaratory relief

to enforce compliance with [RLUIPA].”). Kingston was on

notice of the Department of Justice’s investigation since June

2025, and it cooperated with the investigation. The same day

as the suit was filed, the Department of Justice and Kingston

submitted a consent motion to enter a presumptive four-year

consent decree, which the District Court approved two days

later. That decree enjoined Kingston in several ways and

provided Kingston 120 days to amend the 2023 Zoning

Ordinance in at least seven respects. Kingston’s Town Council

voted to adopt amendments to the 2023 Zoning Ordinance at a

meeting on July 7, 2026. The amendments were published,

and they have an expected effective date 30 days after

publication, which projects to be on or about August 15, 2026.

Even so, the Court has not received notice from either party

that the Kingston Defendants have restored access to the Pierce

Street properties.

DISCUSSION

A preliminary injunction preserves for the duration of a

case the status quo ante – the way things used to be before the

16

complained-of acts.7 Such preliminary relief is generally

allowed only as a prohibitory injunction,8 a form of in

personam equitable relief preventing parties to the litigation

from taking certain actions.9

7

See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)

(“The purpose of a preliminary injunction is merely to preserve

the relative positions of the parties until a trial on the merits

can be held.”); see also Fitzgerald v. Mountain Laurel Racing,

Inc., 607 F.2d 589, 604 n.24 (3d Cir. 1979) (explaining that an

order granting a preliminary injunction was drawn narrowly

such that it did not “extend[] beyond a period of time necessary

to preserve the status quo ante” (emphasis added)).

8

In the rarest and most extreme cases, and only upon

satisfaction of a “particularly heavy burden” and an

“indisputably clear” right to relief, this Court has permitted

preliminary relief in the form of a mandatory injunction. Hope

v. Warden York Cnty. Prison, 972 F.3d 310, 320 (3d Cir. 2020)

(first quoting Acierno v. New Castle County, 40 F.3d 645, 653

(3d Cir. 1994); then quoting Trinity Indus., Inc. v. Chi. Bridge

& Iron Co., 735 F.3d 131, 139 (3d Cir. 2013)). See, e.g., Kim

v. Hanlon, 99 F.4th 140, 147, 152 (3d Cir. 2024) (affirming a

mandatory preliminary injunction that required county clerks

to group candidates “by the offices for which they are running”

in a primary election); Amalgamated Transit Union Loc. 85 v.

Port Auth. of Allegheny Cnty., 39 F.4th 95, 101 (3d Cir. 2022)

(affirming a mandatory preliminary injunction that required an

employer to rescind its discipline of its employees); Osorio-

Martinez v. Att’y Gen., 893 F.3d 153, 178–79 (3d Cir. 2018)

(reversing the denial of a mandatory preliminary injunction to

require petitioners’ release from immigration detention).

9

Cf. Elliott v. Kiesewetter, 98 F.3d 47, 56 n.5 (3d Cir. 1996)

(“A non-party cannot be bound by the terms of an injunction

unless the non-party is found to be acting ‘in active concert or

participation’ with the party against whom injunctive relief is

sought” (quoting Fed. R. Civ. P. 65(d))).

17

As equitable relief, a preliminary injunction may not be

awarded as of right; rather it is dependent on the exercise of

judicial discretion. See Transcon. Gas Pipe Line Co. v. Pa.

Env’t Hearing Bd., 108 F.4th 144, 150 (3d Cir. 2024). That

discretion is guided by four considerations for which the

movant bears the burden of proof:

1. A reasonable probability of success on the

merits of the claim for which injunctive

relief is sought;

2. An irreparable harm in the absence of

preliminary injunctive relief;

3. A balancing of the equities associated

with the possibilities of harms to other

interested persons resulting from the grant

or denial of injunctive relief; and

4. An assessment of the public interest.

Erie Indem. Co. v. Stephenson, 157 F.4th 265, 275 (3d Cir.

2025) (quoting Transcon. Gas, 108 F.4th at 150); see also

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

The first two showings are necessary – a preliminary injunction

cannot be issued unless they are satisfied. See Transcon. Gas,

108 F.4th at 150. If they are, then all four factors bear on a

district court’s exercise of discretion in resolving the motion.

See id. at 150–51.10

10

In the context of a motion for a stay pending appeal, which

is governed by a similar four-factor analytical framework, the

third factor (balancing of the hardships) and the fourth factor

(weighing the public interest) “merge” when the federal

government is a party to the case. Nken v. Holder, 556 U.S.

418, 435 (2009). Even if that rule were applied outside of the

stay context, it would not have ready application to cases in

18

On appeal, a district court’s preliminary-injunction ruling

is reviewed de novo for questions of law, for clear error as to

factual findings, and for an abuse of discretion with respect to

the exercise of equitable discretion. See Erie Indem., 157 F.4th

at 276.11

Here, the requested injunctive relief is in response to the

Kingston Defendants’ enforcement of both the Building Code

and the 2023 Zoning Ordinance. Violations of the Building

Code were the stated reasons for originally condemning both

properties. And provisions in the 2023 Zoning Ordinance were

the grounds for the perpetuation of the condemnation orders,

the inability to quickly and easily permit the proposed exercise

of religion on the properties, and the threatened daily fines of

$500. Because the appropriateness of equitable relief may

depend on whether the challenged enforcement actions were

based on the Building Code or on the 2023 Zoning Ordinance,

the preliminary-injunction analysis is conducted separately for

the two sets of challenges.

A. Preliminary Injunctive Relief with Respect to

Enforcement of the Building Code

With respect to the enforcement of the Building Code,

Rabbi Hellinger and his congregation sought to preliminarily

enjoin the Kingston Defendants from maintaining the

condemnation orders for the Pierce Street properties. They did

so based on their RLUIPA substantial-burden claim.

which one of the parties is a municipal government because

municipal interests may diverge from or conflict with federal

interests. Thus, in cases not involving the federal government,

there is still value in balancing the hardships separately from

consideration of the public interest.

11

But cf. Camenisch, 451 U.S. at 395 (“[T]he findings of fact

and conclusions of law made by a court granting a preliminary

injunction are not binding at trial on the merits.”).

19

1. RLUIPA’s Land-Use Substantial-Burden

Provision

RLUIPA protects the use of real property for religious

exercise in several respects. See generally 42 U.S.C. § 2000cc.

Three of those land-use provisions apply to religious

assemblies, religious institutions, and/or religious structures.12

Another protects the religious exercise of persons – inclusive

of religious assemblies and institutions – from land use

regulations that substantially burden their religious exercise.

See id. § 2000cc(a)(1) (explicitly “including a religious

assembly or institution” in its definition of “a person”); see

also 1 U.S.C. § 1 (defining ‘person’ broadly); cf. Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. 682, 705–19 (2014)

(holding that, as a corporation was a ‘person’ under 1 U.S.C.

§ 1, it can exercise religion for purposes of the Religious

Freedom Restoration Act’s substantial-burden provision, see

42 U.S.C. § 2000bb-1(a)–(b)).

To redress violations of any of its protections, RLUIPA

provides a private cause of action against a ‘government,’

42 U.S.C. § 2000cc-2(a), defined broadly to include not only

states, counties, and municipalities but also persons acting

under color of state law, id. § 2000cc-5(4)(A); see also id.

§ 2000cc-2(a) (“A person may assert a violation of this chapter

as a claim or defense in a judicial proceeding and obtain

12

See 42 U.S.C. § 2000cc(b)(1) (prohibiting governments

from imposing a land use regulation that treats religious

assemblies or institutions on “less than equal terms with a

nonreligious assembly or institution”); id. § 2000cc(b)(2)

(prohibiting governments from imposing a land use regulation

that “discriminates against any assembly or institution on the

basis of religion or religious denomination”); id.

§ 2000cc(b)(3) (prohibiting governments from imposing a land

use regulation that “totally excludes religious assemblies from

a jurisdiction” or “unreasonably limits religious assemblies,

institutions, or structures within a jurisdiction”).

20

appropriate relief against a government.”). That private cause

of action is governed by a burden-shifting framework, which

starts with a RLUIPA plaintiff’s obligation to make a prima

facie showing of a violation of one of RLUIPA’s land-use

provisions (or of the Free Exercise Clause). See id.

§ 2000cc-2(b). A RLUIPA defendant may rebut a prima facie

case, but in doing so, it bears the burden of proof. See id.; see

also New Harvest Christian Fellowship v. City of Salinas,

29 F.4th 596, 601–02 (9th Cir. 2022) (explaining that once a

RLUIPA plaintiff “establishes that it has experienced a

substantial burden,” then “the burden shift[s] to the [defendant]

to show that its” imposition of that burden “is narrowly tailored

to accomplish a compelling governmental interest”).

For a substantial-burden claim under RLUIPA’s land-use

provisions, a prima facie case consists of three elements:

1. a land use regulation;13

2. that was imposed or implemented by a

government;14

3. in a manner that imposes a substantial

burden on the religious exercise of a

person, assembly, or institution.15

If a RLUIPA plaintiff makes those showings, then to avoid

liability, a RLUIPA defendant must “demonstrate” that

imposing the substantial burden:

13

See 42 U.S.C. § 2000cc(a)(1); see also id. § 2000cc-5(5)

(defining ‘land use regulation’).

14

See 42 U.S.C. § 2000cc(a)(1); see also id. § 2000cc-5(4)

(defining ‘government’).

15

See 42 U.S.C. § 2000cc(a)(1); see also id. § 2000cc-5(7)

(giving meaning to the term ‘religious exercise’).

21

(A) is in furtherance of a compelling

governmental interest; and

(B) is the least restrictive means of furthering

that compelling governmental interest.

42 U.S.C. § 2000cc(a)(1); see also id. § 2000cc-5(2) (defining

‘demonstrates’ as “meets the burdens of going forward with

the evidence and of persuasion”).

Applied here, for Rabbi Hellinger and Anash to have a

likelihood of success on the merits for their substantial-burden

claim, it must be likely that they can make a prima facie case

and that the Kingston Defendants cannot make at least one of

the counter-showings.

2. The Ability to Obtain Preliminary

Injunctive Relief from Building Code

Violations Under RLUIPA’s Land-Use

Substantial-Burden Provision

The first element of a prima facie case – a land use

regulation – poses an obstacle for Rabbi Hellinger and his

congregation. As defined by RLUIPA, the term ‘land use

regulation’ encompasses “zoning and landmarking law[s]”

without reference to building codes:

The term ‘land use regulation’ means a zoning or

landmarking law, or the application of such a

law, that limits or restricts a claimant’s use or

development of land (including a structure

affixed to land), if the claimant has an ownership,

leasehold, easement, servitude, or other property

interest in the regulated land or a contract or

option to acquire such an interest.

Id. § 2000cc-5(5). It may be that some provisions in a building

code, including Kingston’s, still govern zoning or landmarking

or constitute applications of zoning and landmarking laws, and

22

thus would be within RLUIPA’s definition of ‘land use

regulation.’16 But the identified provisions of the Building

Code on which the violations here were based – those for a lack

of sprinklers, fire extinguishers, egress signage, and

emergency lights, as well as for open electrical issues – apply

regardless of the zoning district or the landmarking status of

the buildings, and thus they do not qualify as land use

regulations within the scope of RLUIPA.

Rabbi Hellinger and his congregation therefore do not have

a likelihood of satisfying the first element of a prima facie case,

and hence they have no likelihood of success on the merits of

their substantial-burden claim with respect to the enforcement

of the Building Code. Consequently, it was not error for the

District Court to deny preliminary injunctive relief on that

ground. See Transcon. Gas, 108 F.4th at 150 (explaining that

16

Compare Redeemed Christian Church of God (Victory

Temple) Bowie v. Prince George’s County, 17 F.4th 497, 506–

09 (4th Cir. 2021) (holding that a county’s legislative

amendment to its “Water and Sewer Plan” was a ‘land use

regulation’ under RLUIPA because it “divide[d] the relevant

area into different categories, each of which impact[ed] land

use and restrict[ed] or permit[ted] a property’s development”),

and Fortress Bible Church v. Feiner, 694 F.3d 208, 215–18

(2d Cir. 2012) (holding that a town’s “environmental quality

statute,” though “by itself . . . not a zoning law,” fell within the

ambit of RLUIPA because “in this case the [t]own used the

[environmental quality statute] review process as its vehicle for

determining the zoning issues related to [a] [c]hurch’s land use

proposal”), with St. John’s United Church of Christ v. City of

Chicago, 502 F.3d 626, 641 (7th Cir. 2007) (holding that a

city’s exercise of eminent domain was not a ‘land use

regulation’ under RLUIPA), and Prater v. City of Burnside,

289 F.3d 417, 434 (6th Cir. 2002) (holding that a city’s

decision to develop a dedicated roadway pursuant to its

ownership interest in that property was not an imposition or

implementation of a ‘land use regulation’).

23

a showing of likelihood of success on the merits is a required

element for a preliminary injunction).

B. Preliminary Injunctive Relief with Respect to

the Enforcement of the 2023 Zoning

Ordinance as to the Pierce Street Properties

1. Likelihood of Success on the Merits

Rabbi Hellinger and his congregation also seek to enjoin

the Kingston Defendants from enforcing the 2023 Zoning

Ordinance against the Pierce Street properties on several

grounds. As far as RLUIPA violations, they claim that the

ordinance imposes a substantial burden on their religious

exercise, see 42 U.S.C. § 2000cc(a)(1); that it implements a

land use regulation for a religious assembly or institution on

less than equal terms than a nonreligious assembly or

institution, see id. § 2000cc(b)(1); and that it unreasonably

limits religious assemblies, institutions, and structures, see id.

§ 2000cc(b)(3)(B). They also rely on a procedural-due-process

claim.

For Rabbi Hellinger and Anash to have a likelihood of

success on the first of those claims – the substantial-burden

claim – it must be likely that they could make a prima facie

case and that the Kingston Defendants could not make at least

one of the counter-showings. See id. §§ 2000cc(a)(1),

2000cc-2(b).

a. The Prima Facie Showing

of a Substantial Burden

It is likely that Rabbi Hellinger and his congregation will

be able to establish a prima facie substantial-burden claim.

First, as to the land-use-regulation requirement, the

2023 Zoning Ordinance likely qualifies as a ‘land use

regulation’ under RLUIPA because it regulates zoning within

Kingston. See 42 U.S.C. § 2000cc-5(5).

24

Second, the requirement that the land use regulation be

imposed or implemented by a government is likely met. Each

of the Kingston Defendants is within RLUIPA’s definition of

‘government.’ See id. § 2000cc-5(4)(A). And their challenged

actions are based on the implementation of the 2023 Zoning

Ordinance – denying access to and use of the Pierce Street

properties by perpetuating the effect of the condemnation

orders, providing no quick and easy means of permitting the

exercise of religion on the properties, and threatening daily

citations of $500.

Third, it is likely that the implementation of the

2023 Zoning Ordinance substantially burdens Rabbi Hellinger

and his congregation’s religious exercise. The meaning of

‘substantial burden’ as used in RLUIPA’s prohibitions

regarding land use regulations presents a novel question for

this Circuit.17 By way of reference point, in Washington v.

17

Our sister circuits have taken a variety of approaches to the

substantial-burden standard in the context of land use

regulations. See, e.g., Roman Cath. Bishop of Springfield v.

City of Springfield, 724 F.3d 78, 94–97 (1st Cir. 2013) (using

a multi-factor functional approach to assess a substantial

burden); Westchester Day Sch. v. Village of Mamaroneck,

504 F.3d 338, 349–52 (2d Cir. 2007) (considering multiple

factors in connection with the substantial-burden standard,

including the feasibility of alternative locations); Bethel World

Outreach Ministries v. Montgomery Cnty. Council, 706 F.3d

548, 556 (4th Cir. 2013) (explaining that the substantial-

burden standard is satisfied by proof that a “government

regulation puts substantial pressure on [a plaintiff] to modify

its behavior”); Livingston Christian Schs. v. Genoa Charter

Township, 858 F.3d 996, 1003–05 (6th Cir. 2017) (requiring

“some degree of severity” for a burden “to be considered

‘substantial’” and also considering multiple other factors); C.L.

for Urb. Believers v. City of Chicago, 342 F.3d 752, 761

(7th Cir. 2003) (requiring that the land use regulation bear “a

direct, primary, and fundamental responsibility for rendering

25

Klem, 497 F.3d 272 (3d Cir. 2007), this Court gave meaning to

the term ‘substantial burden’ in the context of RLUIPA’s

protections for institutionalized persons. In doing so,

Washington recognized the separateness of the two substantial-

burden protections – those for institutionalized persons and

those for land use – and expressly stated that the land-use

protections were “not applicable” in the institutionalized

person context. Id. at 277. From there, Washington looked to

two Supreme Court decisions – Sherbert v. Verner, 374 U.S.

398 (1963), and Thomas v. Review Board of the Indiana

Employment Security Division, 450 U.S. 707 (1981) –

involving the denial of government-provided benefits based on

a sincerely held religious belief. Washington, 497 F.3d at 278–

79 (citing Sherbert, 374 U.S. at 404, 406 n.6, for its analysis of

the denial of unemployment benefits based on job discharge

stemming from sabbath observances, and Thomas, 450 U.S. at

religious exercise—including the use of real property for the

purpose thereof within the regulated jurisdiction generally—

effectively impracticable” for there to be a substantial burden);

Marianist Province of U.S. v. City of Kirkwood, 944 F.3d 996,

1001 (8th Cir. 2019) (holding that a burden was not substantial

when there were “feasible alternative locations for religious

exercise”); Guru Nanak Sikh Soc’y of Yuba City v. County of

Sutter, 456 F.3d 978, 988 (9th Cir. 2006) (“[F]or a land use

regulation to impose a ‘substantial burden,’ it must be

‘oppressive’ to a ‘significantly great’ extent.” (alteration in

original) (quoting S.J. Christian Coll. v. City of Morgan Hill,

360 F.3d 1024, 1034 (9th Cir. 2004))); Grace United

Methodist Church v. City of Cheyenne, 451 F.3d 643, 660 n.4,

661–63 (10th Cir. 2006) (holding that to be substantial, a

burden did not have to relate to “fundamental” religious

activities); Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214, 1227 (11th Cir. 2004) (explaining that to be

substantial, a burden “must place more than an inconvenience

on religious exercise,” and rather must involve “significant

pressure which directly coerces the religious adherent to

conform his or her behavior accordingly”).

26

717–18, for its analysis of the denial of unemployment benefits

stemming from an employee quitting due to refusal to produce

materials used in war).

Relying primarily on those two cases, Washington

identified two circumstances in which an institutionalized

person could experience a RLUIPA-protected substantial

burden on religious exercise. The first occurs when such a

person is “forced to choose between following the precepts of

his religion and forfeiting benefits otherwise generally

available to other inmates.” Id. at 280. The second takes place

when “the government puts substantial pressure on an adherent

to substantially modify his behavior and to violate his beliefs.”

Id.

Subsequently, in Holt v. Hobbs, 574 U.S. 352 (2015), the

Supreme Court adjudicated a RLUIPA substantial-burden

claim by an institutionalized person. It held that a prison policy

that required an inmate to “engage in conduct that seriously

violates [his] religious beliefs” was a substantial burden. Id. at

361 (alteration in original) (quoting Hobby Lobby, 573 U.S. at

720). That decision is consistent with the Washington

formulation in that they both focus on conflicts with an

inmate’s religious beliefs. But unlike this Court in

Washington, the Supreme Court did not explicitly confine the

substantial-burden claim for institutionalized persons to only

two situations. Id. at 361–62.

Nonetheless, Washington provides a reference point for

evaluating the meaning of ‘substantial burden’ in the context

of RLUIPA’s land-use protections. That is so because,

although they are not identical, RLUIPA’s institutionalized-

persons provisions and its land-use provisions both use a

substantial-burden standard subject to strict scrutiny. Compare

42 U.S.C. § 2000cc-1(a), with id. § 2000cc(a)(1). The

structural similarity allows the situations identified in

Washington under which RLUIPA protects religious beliefs of

institutionalized persons to be translated into the land-use

27

context by accounting for the differences between the two

statutory provisions. That may be done by extending the

protections for institutionalized persons to all persons –

including religious assemblies and institutions, see id.

§ 2000cc(a)(1) – and by linking those protections to the

imposition or implementation of a land use regulation, see id.

Doing so yields two substantial-burden scenarios – both related

to the protection of religious belief. The first occurs when a

person is forced to choose between following the precepts of

his religion and avoiding the effect of a land use regulation. Cf.

Washington, 497 F.3d at 280. The second occurs when a land

use regulation places substantial pressure on a person to

substantially modify his behavior in violation of his beliefs.

Cf. id. 18

18

The two Supreme Court cases relied on in Washington to

formulate the two-part definition of ‘substantial burden’ for

institutionalized persons do not pose any obstacle to a broader

understanding of the term ‘substantial burden’ in the land-use

context. Both of those cases – Sherbert and Thomas – involved

the denial of benefits based on actions inspired by religious

belief, and a land use regulation may substantially burden

religious exercise in different ways than the denial of benefits

may substantially burden religious exercise. See Bethel World

Outreach, 706 F.3d at 555 (contrasting the land-use context

with the institutionalized-persons context and observing that

“[e]ven government action preventing a religious organization

from building a church will rarely, if ever, force the

organization to violate its religious beliefs, because the

organization can usually locate its church elsewhere,” and thus

“requiring a religious organization to prove that a land use

regulation pressured it to violate its beliefs would be

tantamount to eliminating RLUIPA’s substantial burden

protection in the land use context”); cf. Westchester, 504 F.3d

at 348–49 (explaining that “in the context of land use, a

religious institution is not ordinarily faced with the same

28

There may be a temptation to conclude that those

protection-of-belief scenarios define the scope of RLUIPA’s

land-use substantial-burden protections. But RLUIPA shields

more than just religious beliefs; it protects ‘religious exercise,’

defined as “any exercise of religion” including the use of real

property for religious exercise. 42 U.S.C. § 2000cc-5(7)(A)–

(B); cf. generally Emp. Div., Dep’t of Hum. Res. of Or. v.

Smith, 494 U.S. 872, 887 (1990) (explaining that “the ‘exercise

of religion’ often involves not only belief and profession but

the performance of (or abstention from) physical acts”).

Furthermore, RLUIPA’s substantial-burden provision is

considerably broader for land use regulation than for

institutionalized persons in several respects. Compare

42 U.S.C. § 2000cc(a), with id. § 2000cc-1. As a baseline,

RLUIPA identifies two broad categories of permissible

applicability for its substantial-burden protections for

institutionalized persons: (i) for programs or activities that

have received federal financial assistance, see id.

§ 2000cc-1(b)(1), and (ii) for substantial burdens that affect

foreign, interstate, or tribal commerce, see id.

§ 2000cc-1(b)(2). In addition to those, RLUIPA includes a

third category of permissible application for its religious land-

use protections: in situations involving “individualized

assessments of the proposed uses for the property involved.”

Id. § 2000cc(a)(2)(C).19 Moreover, in the land-use context, the

substantial-burden provision is not limited to institutionalized

dilemma of choosing between religious precepts and

government benefits”).

19

The RLUIPA claims by Rabbi Hellinger and Anash are

within, if nothing else, that final category – individualized

assessments of proposed property uses, see 42 U.S.C.

§ 2000cc(a)(2)(C) – because they are traceable to the Kingston

Defendants’ individualized determinations of the 2023 Zoning

Ordinance’s applicability to the proposed uses of the Pierce

Street properties.

29

persons but instead applies to all ‘persons,’ which, as defined,

includes religious assemblies and institutions, id.

§ 2000cc(a)(1), as well as “corporations, companies,

associations, firms, partnerships, societies, and joint stock

companies,” 1 U.S.C. § 1; cf. Hobby Lobby, 573 U.S. at 707–

19.20

20

Rabbi Hellinger, as a natural person, constitutes a ‘person’

protected by RLUIPA. See 1 U.S.C. § 1; cf. Hobby Lobby,

573 U.S. at 707–09. And Anash constitutes an ‘assembly’

within the common and ordinary meaning of that term at the

time of RLUIPA’s enactment. See Assembly, Merriam–

Webster’s Dictionary of Law 34 (1st ed. 1996) (defining an

‘assembly’ in relevant part as “a company of persons collected

together in one place usu[ally] for some common purpose”);

Assembly, Webster’s New World College Dictionary 82 (3d ed.

1996) (defining an ‘assembly’ in relevant part as “a group of

persons gathered together, as for worship, instruction, or

entertainment”); see also Lighthouse Inst. for Evangelism, Inc.

v. City of Long Branch, 510 F.3d 253, 284 n.29 (3d Cir. 2007)

(Jordan, J., concurring in part and dissenting in part) (relying

on dictionary definitions to explain that an “‘assembly’ is

defined as ‘a company of persons gathered together for

deliberation and legislation, worship, or entertainment,’” or as

“[a] group of persons organized and united for some common

purpose” (alteration in original) (first quoting Assembly,

Merriam–Webster’s Collegiate Dictionary 69 (10th ed. 2002),

then quoting Assembly, Black’s Law Dictionary 111 (7th ed.

1999))); Tree of Life Christian Schs. v. City of Upper

Arlington, 905 F.3d 357, 378 (6th Cir. 2018) (Thapar, J.,

dissenting) (citing dictionary definitions to explain that an

“‘assembly’ is ‘[a] group of persons gathered together for a

common reason,’” or “a group of persons gathered together,

usually for a particular purpose, whether religious, political,

educational, or social” (alteration in original) (first quoting

American Heritage Dictionary of the English Language

(4th ed. 2000), then quoting Webster’s Encyclopedic

30

For those reasons, there is a strong textual basis for reading

RLUIPA’s substantial-burden protections for religious land

use more expansively than its substantial-burden protections

for institutionalized persons. Cf. 42 U.S.C. § 2000cc-3(g)

(instructing that RLUIPA “be construed in favor of a broad

protection of religious exercise, to the maximum extent

permitted by [its terms] and the Constitution”). And

RLUIPA’s text provides guideposts for assessing the

additional breadth of meaning for the term ‘substantial burden’

in the land-use context. It requires a burden on religious

exercise resulting from a government’s imposition or

implementation of a land use regulation. See id.

§ 2000cc(a)(1). The burden must be “substantial” as well, id.,

and that is primarily a question of degree, evaluated against the

backdrop of RLUIPA’s capacious definition of ‘religious

exercise,’ which includes “any exercise of religion” as well as

“the use, building, or conversion of real property for the

purpose of religious exercise,” id. § 2000cc-5(7)(A)–(B).

Thus, the greater the nexus between a land use regulation and

religious exercise, the greater the likelihood that the land use

regulation will substantially burden religious exercise.

Application of that principle in light of other provisions in

RLUIPA produces specific legal rules in at least three

scenarios. First, a land use regulation imposes a substantial

burden on religious exercise if it restricts access to real

property that is otherwise available for the proposed exercise

of religion.21 Second, a land use regulation – even one of

Unabridged Dictionary of the English Language (1996))). See

generally United States v. Adair, 38 F.4th 341, 350 (3d Cir.

2022) (“To discern the common ordinary meaning of [a] term[]

at the time of [a statute’s] promulgation, it is permissible to

consult contemporary dictionaries.”).

21

The limiting phrase ‘otherwise available for the proposed

exercise of religion’ accounts for the statutory terms ‘land use

regulation’ and ‘government.’ Because a substantial-burden

claim applies only to “land use regulation[s],” 42 U.S.C.

31

general applicability – imposes a substantial burden if it limits

the use of real property that is otherwise available for the

proposed exercise of religion so as to prevent the proposed

exercise of religion on the property. Third, even when the

imposition or implementation of a land use regulation does not

directly impede religious exercise, the land use regulation may

still impose a substantial burden if it has a significant adverse

effect on real property that is used or otherwise available for

§ 2000cc(a)(1), there is not a substantial burden under

RLUIPA when another source of law independently prevents

the use of the property for the proposed religious exercise. And

because RLUIPA covers only “government[s],” id., there is not

a substantial burden when non-governmental actors have and

exercise property rights to independently restrict a proposed

religious exercise. See Adderley v. Florida, 385 U.S. 39, 47

(1966) (“[A] private owner of property[] has power to preserve

the property under its control for the use to which it is lawfully

dedicated.”). Cf. Cedar Point Nursery v. Hassid, 594 U.S. 139,

149 (2021) (“The right to exclude is ‘one of the most treasured’

rights of property ownership.” (quoting Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435

(1982))). By contrast, the substantial-burden formulation

advanced by our dissenting colleague does not fully appreciate

that RLUIPA regulates “land use regulations” imposed by

“government[s],” 42 U.S.C. § 2000cc(a)(1), and that leads to

the erroneous conclusions that the substantial-burden analysis

may “consider[] the plaintiff’s ‘own actions,’” Dissent Op. at

5 (quoting Livingston Christian Schs., 858 F.3d at 1004), and

that it should examine “whether the plaintiff had a reasonable

expectation of religious land use or whether the plaintiff’s

burden was self-imposed,” id. at 4. RLUIPA protects the

exercise of religion, and it has no provisions for scrutinizing

the actions or expectations of persons seeking to exercise

religion. Unlike First Amendment jurisprudence, see, e.g.,

Frazee v. Ill. Dep’t of Emp. Sec., 489 U.S. 829, 833–34 (1989),

RLUIPA does not impose a sincerity-of-belief prerequisite for

its protections, see 42 U.S.C. §§ 2000cc–2000cc-5.

32

the proposed exercise of religion. Cf. Thomas, 450 U.S. at 718

(recognizing that “indirect” compulsion may still be a

substantial infringement on the exercise of religion).

Aspects of the claims brought by Rabbi Hellinger and his

congregation are within each of those three scenarios.

First, because Kingston relies on the stated non-compliance

of the Pierce Street properties with the 2023 Zoning Ordinance

as a means of perpetuating the condemnation orders, the

implementation of the 2023 Zoning Ordinance restricts access

to real property used for religious exercise and thus imposes a

substantial burden on religious exercise.

Second, because Kingston has taken the position that there

is no way to “quickly or easily” allow the use of 239 Pierce

Street for religious group living, the implementation of the

2023 Zoning Ordinance limits the use of real property in a way

that prevents religious exercise on that property. Letter from

Harry P. Mattern, Municipal Solicitor, Municipality of

Kingston, to David Schwager, Attorney for Rabbi Hellinger

(Oct. 4, 2023) (JA209).

Third, because Kingston relies on the 2023 Zoning

Ordinance as the basis for the threatened daily citations of $500

per Pierce Street property, the implementation of the

2023 Zoning Ordinance has a significant adverse effect on real

property used for religious exercise. The threat of daily

citations in any amount is an adverse effect. And here that

effect is likely significant. As a benchmark, the purchase price

of 239 Pierce Street in 2019 was $45,000 and the purchase

price of 44 Pierce Street in 2021 was $134,000. In light of

those figures, and even accounting for inflation, daily $500

fines would quickly amount to sizeable liability relative to the

approximate property values of the two properties. Hence, the

threatened $500 daily fines would likely have significant

adverse effects on the Pierce Street properties and

consequently be a substantial burden on Rabbi Hellinger and

33

his congregation. Cf. Hobby Lobby, 573 U.S. at 726

(concluding that a requirement to pay “an enormous sum of

money” for action in accordance with religious belief “clearly

imposes a substantial burden on those beliefs”).

For those reasons, Rabbi Hellinger and his congregation

have shown a likelihood that they will prove a prima facie case

for their substantial-burden claim.

b. The Burden Shift to the Kingston

Defendants

With that assessment, the analysis of the likelihood of

success of the substantial-burden claim depends on the

likelihood that the Kingston Defendants will make the requisite

counter-showings of a compelling governmental interest and

implementation through the least restrictive means. As used in

tandem in RLUIPA, ‘compelling governmental interest’ and

‘least restrictive means’ are specialized terms that implement

the strict-scrutiny standard used in constitutional law. See

Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch,

510 F.3d 253, 269 (3d Cir. 2007) (explaining that “the

[s]ubstantial [b]urden section includes a strict scrutiny

provision”).22

22

See also Centro Familiar Cristiano Buenas Nuevas v. City

of Yuma, 651 F.3d 1163, 1171 (9th Cir. 2011) (explaining that

“[t]he Constitutional phrases, ‘substantial burden,’

‘compelling governmental interest,’ and ‘least restrictive

means,’ are all included in the ‘substantial burden’ provision”

(citing 42 U.S.C. § 2000cc(a)(1))); Opulent Life Church v. City

of Holly Springs, 697 F.3d 279, 292 n.12 (5th Cir. 2012)

(stating in the context of a claim under RLUIPA’s equal-terms

provision, see 42 U.S.C. § 2000cc(b)(1), that “strict scrutiny is

the proper test for claims under the [s]ubstantial [b]urden

[c]lause” (citing 42 U.S.C. § 2000cc(a))); cf. Thomas, 450 U.S.

at 718–19 (determining that “[t]he state may justify an inroad

on religious liberty by showing that it is the least restrictive

34

The first of those terms, ‘compelling interest,’ refers to an

interest “of the highest order.” Wisconsin v. Yoder, 406 U.S.

205, 215 (1972). Such an interest, therefore, is greater than the

‘important interest’ required for intermediate or exacting

scrutiny and much greater than the ‘legitimate interest’

required for rational basis review.23

In light of that understanding, it is quite unlikely that the

Kingston Defendants will be able to demonstrate a compelling

interest for the substantial burdens at issue here: (i) the

prolonged condemnation of the Pierce Street properties based

on the 2023 Zoning Ordinance; (ii) Kingston’s inability to

quickly and easily allow use of 239 Pierce Street for religious

group living under the 2023 Zoning Ordinance; and (iii) the

imminent daily $500 fines for each Pierce Street property for

violations of the 2023 Zoning Ordinance.

means of achieving some compelling state interest” and that

“[n]either of the interests advanced is sufficiently compelling

to justify the burden” on religious liberty at issue).

23

See Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 607

(2021) (comparing strict scrutiny, where “the government must

adopt ‘the least restrictive means of achieving a compelling

state interest,’” to exacting scrutiny, which requires “a means

substantially related to a sufficiently important interest”

(quoting McCullen v. Coakley, 573 U.S. 464, 478 (2014)));

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439–

42 (1985) (characterizing the standard of review based on

‘compelling interest’ requirements as heightened compared

with those based on ‘important’ and ‘legitimate’ interests); cf.

Priests for Life v. HHS, 808 F.3d 1, 21 (D.C. Cir. 2015)

(Kavanaugh, J., dissenting from the denial of rehearing en

banc) (“No code or history book lists the Government’s

compelling interests. Rather, courts have developed those

interests over time, in common-law-like fashion.”).

35

First, it is unlikely that the Kingston Defendants will be

able to demonstrate a compelling governmental interest in

perpetuating the condemnation orders after the Building Code

violations have been remediated. A municipality’s interest in

land use regulation may be legitimate, and possibly important

or even compelling in some rare situations.24 But the

implementation of the 2023 Zoning Ordinance in a manner to

prevent access to and use of the Pierce Street properties once

they are compliant with the Building Code is not a “highest

order” governmental interest. Id. at 215. Therefore, the

Kingston Defendants are not likely to demonstrate a

compelling governmental interest in perpetuating the

condemnation orders.

Second, because they rely on the 2023 Zoning Ordinance

to deny Rabbi Hellinger and his congregation the ability to use

239 Pierce Street, the Kingston Defendants also have to show

a compelling governmental interest in the lack of a quick and

easy means for allowing the proposed – and previously

permitted – uses of the properties. Yet other than allusions to

24

Compare Whitton v. City of Gladstone, 54 F.3d 1400, 1408

(8th Cir. 1995) (“[A] municipality’s asserted interests in traffic

safety and aesthetics, while significant, have never been held

to be compelling.”), and Thai Meditation Ass’n of Ala., Inc. v.

City of Mobile, 83 F.4th 922, 929–31 (11th Cir. 2023)

(concluding, in a case that involved a RLUIPA substantial-

burden claim concerning a land use regulation as well as a state

law that “like RLUIPA, require[d] the government’s action to

satisfy strict scrutiny to survive review,” that for the state law,

a “generalized invocation[] of [a] government interest[] in

‘zoning’” is “insufficient to carry the government’s burden” to

show a compelling interest), with Redeemed Christian Church,

17 F.4th at 510 (explaining that a “compelling interest” is one

that implicates “the government’s paramount interest in

protecting physical or mental health, public safety, or public

welfare” (quoting Am. Life League, Inc. v. Reno, 47 F.3d 642,

655 (4th Cir. 1995))).

36

health and safety concerns, the Kingston Defendants do not

provide any justification for their predicted delays associated

with permitting religious group living on that property. In that

respect, too, they have failed to establish a compelling

governmental interest for their implementation of the

2023 Zoning Ordinance.25

Third, the Kingston Defendants’ interests in threatening

daily $500 citations for violations of the 2023 Zoning

Ordinance are likewise dubious. The stated basis for the

zoning violation with respect to 239 Pierce Street was a

moving target. Kingston started by asserting that the property

was used as a rooming/boarding house, and switched to insist

that the building was used as a dormitory. Neither works well.

Under the 2023 Zoning Ordinance, to be a ‘rooming and/or

boarding house,’ such a property “contains rooms which are

rented or leased,” Municipality of Kingston, Pa., Zoning

Ordinance § 203, but the residents of 239 Pierce Street did not

pay rent, and there is no evidence that they had leases, as they

were considered congregants rather than tenants. Moreover,

the 2023 Zoning Ordinance does not even define the term

‘dormitory,’ much less provide any zoning regulations with

respect to dormitories. Id. (showing no listing of ‘dormitory’

25

See Hobbs, 574 U.S. at 363 (explaining in the context of a

substantial-burden claim under RLUIPA’s protections for the

religious exercise of institutionalized persons that the

compelling interest test requires “application of the challenged

law ‘to the person’—the particular claimant whose sincere

exercise of religion is being substantially burdened” (quoting

Hobby Lobby, 573 U.S. at 726)); Westchester, 504 F.3d at 353

(explaining in the context of a RLUIPA substantial-burden

claim concerning a land use regulation that the government

must “show a compelling interest in imposing the burden on

religious exercise in the particular case at hand, not a

compelling interest in general” (citing Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 432

(2006))).

37

where such definition would be in alphabetical listing); see

also id. (providing the sole mention of ‘dormitory’ in

2023 Zoning Ordinance stating that it is excluded from the

definition of ‘rooming house’). As far as 44 Pierce Street, the

proposed citation was predicated on its use as a ‘school.’ But

as defined by the 2023 Zoning Ordinance, a school must be

licensed by the state. Id. And Kingston admitted that it knew

that the 44 Pierce Street property was not licensed by the

Commonwealth. It is therefore likely that 44 Pierce Street

could not meet the definition of a ‘school.’ Hence, the

rationales for the threatened daily citations are precarious –

much closer to illegitimate motives than compelling

governmental interests.26

26

In deciding that Rabbi Hellinger and his congregation were

not likely to succeed on the merits of their substantial-burden

claim, the District Court opined that Rabbi Hellinger had not

established religious animus or discriminatory intent by the

Kingston Defendants. Anash, 2024 WL 5294369, at *7. That

assessment appears to be based on the absence of direct

evidence, as the District Court did not consider the cumulative

significance of circumstantial evidence of animus or

discriminatory intent. That includes the unexplained change in

the designation of 239 Pierce Street from a rooming/boarding

house to a dormitory; the treatment of 239 Pierce Street as a

‘dormitory’ despite that term being undefined in the

2023 Zoning Ordinance; the treatment of 44 Pierce Street as a

‘school’ despite its inability to meet the definition of a ‘school’

in the 2023 Zoning Ordinance; the threat of daily fines in the

maximum allowed amount of $500 for non-compliance with

the 2023 Zoning Ordinance; the statement in the Zoning

Officer’s administrative search warrant for 239 Pierce Street

that no adult supervision was observed despite the

investigative file containing a photo of an adult walking with

two children; the assertions in each of the administrative

warrant applications that Rabbi Hellinger failed to register as a

landlord, despite the residents at 239 Pierce Street not meeting

38

One of the key justifications the District Court provided for

its contrary conclusion was the lack of evidence by Rabbi

Hellinger and Anash that other properties were unavailable as

living quarters for his congregant-students and for the purposes

of a yeshiva. Anash, 2024 WL 5294369, at *4–7. Without

Rabbi Hellinger or Anash disproving the feasibility of

alternative locations for their exercise of religion, the District

Court reasoned that the condemnation orders did not

substantially burden religious exercise. Id. at *7.

Our dissenting colleague also shares that view, see Dissent

Op. at 4, 6–7, but the feasible-alternative-locations rationale

cannot stand in light of RLUIPA. For context, there are several

reasons why governments may not want real property used for

religious exercise. Houses of worship may be exempt from

property taxes.27 Religious exercise may also be viewed as not

the relevant definition of ‘tenants,’ Kingston Mun. Code

§ 116-3, and despite the absence of evidence that anyone ever

resided at 44 Pierce Street; and the execution of the

administrative warrants and subsequent condemnation of the

Pierce Street properties on the day before Rosh Hashanah and

the commencement of the High Holy Days, cf. Josey v. John

R. Hollingsworth Corp., 996 F.2d 632, 639–41 (3d Cir. 1993)

(explaining in the context of a Title VII claim that the timing

of events “may raise an inference of discrimination”). Cf.

generally Westchester, 504 F.3d at 353 (recognizing that

“undue deference to the opposition of a small group of

neighbors” may lead to the imposition of a substantial burden

on religious exercise); Fortress Bible Church, 694 F.3d at 219

(acknowledging that actions taken in bad faith may impose a

substantial burden “because it appears that the applicant may

have been discriminated against on the basis of its status as a

religious institution”).

27

See Douglas Laycock & Luke W. Goodrich, RLUIPA:

Necessary, Modest, and Under-Enforced, 39 Fordham Urb.

L.J. 1021, 1021 (May 2012) (explaining that churches “are

unpopular with city officials because they are tax exempt”);

39

spurring job growth or generating commercial activity.28 And

religious exercise can strain infrastructure, such as by

increasing traffic and the demand for parking.29 In addition,

some residents may disfavor some forms of religious

exercise.30 But religious freedom was a value of this nation

see, e.g., 53 Pa. Cons. Stat. § 8812(a)(1) (exempting “[a]ll

churches, meetinghouses or other actual places of regularly

stated religious worship” from “all county, city, borough,

town, township, road, poor, county institution district and

school real estate taxes”).

28

See Laycock & Goodrich, 39 Fordham Urb. L.J. at 1032,

1036–37 (explaining that, “[a] new movie theater, grocery

store, or Walmart can expect at least some support from

residents who expect to patronize it, be employed by it, or gain

tax revenue from it,” but “the vast majority of residents know

they will never attend a proposed new church,” and

“[c]hurches also face opposition on the closely related ground

that they put a damper on commercial or entertainment

districts,” with the result being that “churches are unwanted in

rural and residential districts because they generate too much

traffic, and unwanted in commercial districts because they

generate too little”).

29

See Laycock & Goodrich, 39 Fordham Urb. L.J. at 1021

(explaining that churches “are unpopular in residential zones

because they allegedly generate too much traffic, noise, and

congestion”).

30

See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 525–28 (1993) (describing community-member

opposition to religious ritual animal sacrifice practiced in

Santeria, leading to ordinances limiting such practices);

Laycock & Goodrich, 39 Fordham Urb. L.J. at 1025–36

(explaining the roles of religious hostility and NIMBY (‘not in

my backyard’) resistance in the zoning context); see also id. at

1039–40 (“Th[e] widespread resistance to churches results in a

collective action problem. If one suburb is open to churches,

and its near neighbors are not, the open suburb may become

40

from its earliest origins. See Fulton v. City of Philadelphia,

593 U.S. 522, 572 (2021) (Alito, J., concurring in the

judgment) (explaining that, by the time of the First

Amendment’s adoption, “the right to religious liberty already

had a long, rich, and complex history in this country”). And

through RLUIPA’s land-use substantial-burden provision,

Congress codified a basic principle: except when the

implementation of a land use regulation satisfies strict scrutiny,

the choice of where the exercise of religion can take place

should be left to persons with rights of access to and use of real

property – not to zoning codes and landmarking laws

promulgated by governments. See 42 U.S.C. § 2000cc(a)(1);

see also id. § 2000cc-5(5) (defining the term ‘land use

regulation’ by reference to a claimant’s “ownership, leasehold,

easement, servitude, or other property interest in the regulated

land”).

Thus, in all but the most dire circumstances, a land use

regulation that prevents access to or use of real property for

religious exercise will contravene RLUIPA – regardless of the

presence of feasible alternative locations for the religious

exercise.31 And because a land use regulation must satisfy

overloaded. The perception is that too many churches will

move in, reducing the tax base and upsetting local residents.

Thus, the incentive is for every jurisdiction to exclude at least

as much as neighboring jurisdictions, and maybe a little

more.”).

31

Contra Westchester, 504 F.3d at 352 (considering “whether

there are quick, reliable, and financially feasible alternatives”

to meeting religious needs as part of the substantial-burden

analysis); Jesus Christ Is the Answer Ministries, Inc. v.

Baltimore County, 915 F.3d 256, 261 (4th Cir. 2019)

(explaining that, in circumstances where “an organization

acquires property expecting to use it for a religious purpose but

is prevented from doing so by the application of a zoning

ordinance,” there “usually” exists an “impediment to the

organization’s religious practice [that is] substantial” when

41

strict scrutiny in order to dictate where religious exercise may

take place, Rabbi Hellinger and his congregation did not need

to disprove the feasibility of alternative locations for the

exercise of their religion in order to show that their exercise of

religion was substantially burdened.

Without a likelihood of showing a compelling

governmental interest in the enforcement of the 2023 Zoning

Ordinance as to the Pierce Street properties, the prima facie

case is not likely to be rebutted, and it is not necessary to

engage in a least-restrictive-means analysis.

Even so, our dissenting colleague identifies another ground

on which he believes Rabbi Hellinger and his congregation

would not have a likelihood of success on the merits. He

opines that the case is unripe because Rabbi Hellinger and

Anash sued the Kingston Defendants prematurely. As he sees

it, they should not have sued until the Kingston Defendants had

“the organization must acquire a different property as a result,”

provided that “use of the property would serve an unmet

religious need” and “the restriction on religious use is absolute

rather than conditional”), as amended (Feb. 25, 2019);

Livingston Christian Schs., 858 F.3d at 1004 (considering the

feasibility of alternative locations as part of the substantial-

burden analysis); Edgewood High Sch. of the Sacred Heart,

Inc. v. City of Madison, 95 F.4th 1080, 1088 (7th Cir. 2024)

(explaining that “the availability of other adequate properties

to host religious activities may defeat a substantial burden

claim”); Marianist Province, 944 F.3d at 1001 (holding that

“requiring a religious institution to use feasible alternative

locations for religious exercise does not constitute a substantial

burden”); New Harvest, 29 F.4th at 602 (explaining that the

availability of alternative locations is “plainly relevant to the

substantial-burden inquiry”); Midrash, 366 F.3d at 1227 n.11

(holding that the absence of feasible alternative locations “does

not create a substantial burden within the meaning of

RLUIPA”).

42

an opportunity to make final determinations as to the

application of the 2023 Zoning Ordinance to the Pierce Street

properties. Dissent Op. at 9–11. But the Kingston Defendants

did make final determinations with respect to the Pierce Street

properties. They issued two condemnation orders, and after

concluding that there was no quick or easy way to bring the

properties into compliance, they threatened daily fines of $500.

More deeply, RLUIPA’s substantial-burden provision is not

contingent upon the formality of a final land-use

determination. Rather, that provision applies whenever a

“substantial burden is imposed in the implementation of a land

use regulation or system of land use regulations, under which

a government makes, or has in place formal or informal

procedures or practices that permit the government to make,

individualized assessments of the proposed uses for the

property involved.” 42 U.S.C. § 2000cc(a)(2)(C).

Even upon consideration of prudential ripeness,32 the

substantial-burden claim meets the requirements of (i) fitness

for judicial decision and (ii) hardship resulting from the

withholding of judicial review. See Stolt-Nielsen S.A. v.

AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010) (“In

evaluating a claim to determine whether it is ripe for judicial

review, we consider both ‘the fitness of the issues for judicial

decision’ and ‘the hardship of withholding court

consideration.’” (quoting Nat’l Park Hosp. Ass’n v. Dep’t of

Interior, 538 U.S. 803, 808 (2003))). The substantial-burden

claim is fit for judicial decision because it can be evaluated on

32

But cf. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167

(2014) (relying on Lexmark, Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 126 (2014), for the

proposition that prudential ripeness is “in some tension” with

a federal court’s virtually unflagging obligation to hear and

decide cases within its jurisdiction, but declining to address

“the continuing vitality of the prudential ripeness doctrine . . .

because the ‘fitness’ and ‘hardship’ factors [were] easily

satisfied”).

43

this record. And withholding review would result in a hardship

– the substantial burden on the exercise of religion.33

33

Our dissenting colleague also suggests that the appeal has

become moot by virtue of the consent decree, which provides

for the adoption of curative amendments to the 2023 Zoning

Ordinance. Dissent Op. at 8–9. But the record does not

support a mootness ruling. No party has moved to supplement

the record with evidence that Rabbi Hellinger and his

congregation have regained access to the Pierce Street

properties. Nor is the consent decree between the United States

and Kingston a certain panacea for the RLUIPA substantial-

burden claims at issue here as the suit initiated by the

Department of Justice did not include a substantial-burden

claim. And although amendments to the 2023 Zoning

Ordinance have recently been adopted by the Kingston Town

Council, they have not yet taken effect. Even then, mootness

would not be automatic because “a defendant’s voluntary

cessation of the complained-of conduct does not moot claims

for prospective relief unless that defendant meets the ‘heavy’

burden of establishing that ‘there is no reasonable expectation

that the wrong will be repeated,’” Lutter v. JNESO, 86 F.4th

111, 130 (3d Cir. 2023) (quoting United States v. W. T. Grant

Co., 345 U.S. 629, 633 (1953)), and that “interim relief or

events have completely and irrevocably eradicated the effects

of the alleged violation,” id. at 130–31 (quoting County of Los

Angeles v. Davis, 440 U.S. 625, 631 (1979)). Without those

showings necessary to overcome the voluntary-cessation

exception to mootness, resort to mootness is inappropriate.

Our dissenting colleague cites an out-of-circuit case for the

proposition that voluntary-cessation principles do not apply to

consent decrees. Dissent Op. at 9 (citing Env’t Conservation

Org. v. City of Dallas, 529 F.3d 519, 528 (5th Cir. 2008)). But

consent decrees are voluntarily entered into by the parties to a

case, see Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367,

378 (1992) (“A consent decree no doubt embodies an

agreement of the parties . . . .”), and this Court has not adopted

44

In sum, there is a likelihood that Rabbi Hellinger and his

congregation will succeed on the merits of their substantial-

burden claim. And because they seek the same or less-

encompassing preliminary injunctive relief with respect to

their other claims – those for violating RLUIPA’s equal-terms

and exclusions-and-limits provisions as well as for procedural

due process – it is unnecessary to evaluate the likelihood of

success of those claims.

2. Irreparable Harm

Rabbi Hellinger and his congregation demonstrated an

irreparable harm. They lost access to and use of real property

that was used for religious exercise, and as a result, the

congregation was no longer intact. When a government

deprives a person of access to or use of real property for which

that person has a right to access or use, the resulting injury

qualifies as irreparable harm. See Minard Run Oil Co. v. U.S.

Forest Serv., 670 F.3d 236, 256 (3d Cir. 2011), as amended

(Mar. 7, 2012) (“[W]here ‘interests involving real property are

at stake, preliminary injunctive relief can be particularly

appropriate because of the unique nature of the property

interest.’” (quoting RoDa Drilling Co. v. Siegal, 552 F.3d

1203, 1210 (10th Cir. 2009))); see also RoDa Drilling,

552 F.3d at 1211 (finding irreparable harm when a party

“provided all of the funds to purchase [a] property,” but was

“denied unfettered ownership of that property,” with the result

being that the party “cannot participate in the everyday

operations of its own interests, and the damages arising from

that denial are incalculable”).

Separately, the loss of religious freedom is itself an

irreparable harm. See Roman Cath. Diocese of Brooklyn v.

Cuomo, 592 U.S. 14, 19 (2020) (per curium) (“The loss of First

Amendment freedoms, for even minimal periods of time,

a rule excluding a consent decree entered in separate litigation

from scrutiny under voluntary-cessation principles.

45

unquestionably constitutes irreparable injury.” (quoting Elrod

v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion))). Thus,

here, where the implementation of the 2023 Zoning Ordinance

burdens religious instruction, communal prayer, religious

group living as well as the use of real property, Rabbi Hellinger

and his congregation have established an irreparable harm.

3. Balancing the Hardships

The third preliminary-injunction consideration involves

comparing the hardship a plaintiff would experience without

the injunction to the hardship that a defendant would

experience from compliance with the injunction. See ADP,

LLC v. Rafferty, 923 F.3d 113, 120 (3d Cir. 2019) (explaining

that the third consideration requires balancing “the relative

hardship that the grant or denial of an injunction would inflict

on the parties”); 11A Wright & Miller’s Federal Practice &

Procedure § 2948.2 (3d ed. Apr. 2026) (same). As far as the

hardship on Rabbi Hellinger and his congregation, without a

preliminary injunction, they cannot use the Pierce Street

properties for religious exercise, and Rabbi Hellinger’s ability

to maintain the fullness of his congregation is inhibited. If the

Kingston Defendants were enjoined from condemning the

Pierce Street properties, they would not be able to further their

interests in land use planning and regulation through the

enforcement of the 2023 Zoning Ordinance with respect to

those properties. But as explained above, that interest, at least

in this case, is not compelling – and it likely does not rise to

the level of an important governmental interest.34 Thus,

withholding injunctive relief would inflict a greater hardship

on Rabbi Hellinger and his congregation, who seek to practice

their religion through the use of the properties, than granting

injunctive relief would impose on the Kingston Defendants.

34

Cf. Whitton, 54 F.3d at 1408; Thai Meditation Ass’n,

83 F.4th at 929–31.

46

4. The Public Interest

When, as here, the relevant public interests are protected by

federal law as well as state or municipal law, the supremacy of

federal law guides the public-interest analysis. See generally

U.S. Const. art. VI, cl. 2 (Supremacy Clause). Accordingly,

the public interest is greatest in correcting unconstitutional

practices, next in addressing interests memorialized in federal

law, and then in remedying affronts to state laws and municipal

codes.35 Instead of recognizing that interests protected by

federal legislation take precedence over conflicting interests

preserved in state or municipal law, the District Court

evaluated the public interest solely from the municipal

perspective. Anash, 2024 WL 5294369, at *11–12. That was

error. The public interest favors vindicating RLUIPA’s

protections for Rabbi Hellinger and his congregation’s exercise

of religion over the enforcement of the 2023 Zoning

Ordinance. Cf. Ramirez v. Collier, 595 U.S. 411, 427, 433

(2022) (explaining that, in enacting RLUIPA, Congress

35

See Kim, 99 F.4th at 160 (“[R]emedying an unconstitutional

practice is always in the public interest.”); KalshiEX, LLC v.

Flaherty, 172 F.4th 220, 232 (3d Cir. 2026) (“If the Act

preempts New Jersey law, then the public interest is best served

by enforcing the Act.”); see also Roman Cath. Diocese of

Brooklyn, 592 U.S. at 19–20 (recognizing the strong public

interest in protecting the First Amendment’s guarantee of

religious liberty to assemble together for worship in the midst

of a public health crisis); Winter, 555 U.S. at 25–26 (explaining

that the “public interest in conducting [naval] training

exercises with active sonar under realistic conditions plainly

outweighs the interests advanced by the plaintiffs” in various

“ecological, scientific, and recreational interests” from

observing and studying wildlife); Virginian Ry. Co. v. Sys.

Fed’n No. 40, 300 U.S. 515, 552 (1937) (“The fact that

Congress has indicated its purpose . . . is in itself a declaration

of public interest and policy which should be persuasive in

inducing courts to give relief.”).

47

evidenced its view that there exists a strong interest in

protecting the First Amendment right to the free exercise of

religion).

5. The Discretionary Assessment

Although a preliminary injunction is not awarded as of

right, when all four factors favor granting the requested

injunction, it is quite likely that denying injunctive relief will

be an abuse of discretion. See Council of Alt. Pol. Parties v.

Hooks, 121 F.3d 876, 884 (3d Cir. 1997). In that situation, the

focus shifts away from the eligibility for injunctive relief to

instead its appropriate scope. See id. (defining the scope of a

preliminary injunction when all four factors have been met).

And here, the relevant requests for preliminary injunctive relief

– to prevent the perpetuation of the access and use restrictions

based on noncompliance with the 2023 Zoning Ordinance and

to enjoin daily $500 citations for violations of that ordinance –

align with the four-factor analysis. The District Court,

therefore, abused its discretion in denying those forms of relief.

As far as remedy, there are two means for an appellate court

to correct an erroneously denied preliminary injunction. The

first is an order reversing the denial and remanding with

instructions to grant the injunction. See 28 U.S.C. § 2106

(“The Supreme Court or any other court of appellate

jurisdiction may . . . remand the cause and direct the entry of

such appropriate judgment, decree, or order, or require such

further proceedings to be had as may be just under the

circumstances.”); see, e.g., FTC v. Penn State Hershey Med.

Ctr., 838 F.3d 327, 353–54 (3d Cir. 2016) (reversing the denial

of a motion for a preliminary injunction and remanding with

directions to the district court to enter a preliminary

injunction); Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700,

732 (3d Cir. 2004) (same). That approach has the virtues that

it does not require an appellate court to set the amount of

48

security needed for the preliminary injunction36 and it does not

deprive a district court of the ability to modify or dissolve the

preliminary injunction if justified by a change in

circumstances.37 The second approach is a reversal on terms

imposed by the appellate court. See 28 U.S.C. § 2106 (“The

Supreme Court or any other court of appellate jurisdiction may

affirm, modify, vacate, set aside or reverse any judgment,

decree, or order of a court lawfully brought before it for review

. . . .”). That approach, while permissible, is rarely, if ever,

used by this Court.

Between those two options, the appropriate remedy in this

case is a close call. The need for fact-finding by the District

Court as to the amount of security is not great because this

Court, like other appellate courts,38 recognizes a narrow

36

See Fed. R. Civ. P. 65(c) (“The court may issue a preliminary

injunction or a temporary restraining order only if the movant

gives security in an amount that the court considers proper to

pay the costs and damages sustained by any party found to have

been wrongfully enjoined or restrained.”); see also Hope,

972 F.3d at 322 (“Under Rule 65(c), the absence of a bond

precludes issuance of an injunction.”); Frank’s GMC Truck

Ctr., Inc. v. Gen. Motors Corp., 847 F.2d 100, 103 (3d Cir.

1988) (“While there are exceptions, the instances in which a

bond may not be required are so rare that the requirement is

almost mandatory.”).

37

Cf. 11A Wright & Miller’s Federal Practice & Procedure

§ 2947 (“A preliminary injunction remains in effect until a

final judgment is rendered or the complaint is dismissed, unless

it expires earlier by its own terms, or is modified, stayed, or

reversed.”).

38

See Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d

797, 803 n.8 (3d Cir. 1989) (“Other courts of appeal have held

that certain non-commercial and public interest cases may

require dispensing with the bond” (citations omitted)); see also

49

exception to the bond requirement based on consideration of

the equities and the potential hardships to the parties resulting

from waiving that requirement.39 From the record, this case

likely qualifies for the exception because the balance of the

hardships, both financial and otherwise, tilts heavily in favor

of Rabbi Hellinger and there is no monetary or undue hardship

on the Kingston Defendants for compliance with the

preliminary injunction. But while a preliminary injunction that

is strictly prohibitory may be less susceptible to modification

or dissolution by changed circumstances, this situation is

potentially dynamic. After oral argument in this case, the

United States Department of Justice separately sued Kingston

for RLUIPA violations, and in response, Kingston entered a

consent decree wherein it agreed to amend its 2023 Zoning

Ordinance. In light of the potential overlap between that

decree and the injunction in this case, it makes sense for the

District Court to have the ability to modify or dissolve the

injunction in this case if justified by changed circumstances.

Temple Univ. v. White, 941 F.2d 201, 219 n.26 (3d Cir. 1991)

(collecting cases).

39

See Temple Univ., 941 F.2d at 219–20 (deciding that, as the

moving party “was on the brink of financial ruin” while

“virtually no risk existed” for the opposing party in complying

with the ordered relief, “[t]he equities of potential hardships to

the parties, therefore, weighed in favor of waiving the bond

requirement”); see also Elliott, 98 F.3d at 59–60 (explaining

that this Court has a “recognized an exception to the Rule 65(c)

bond requirement,” albeit a “narrow” one, in circumstances

where “specific findings” demonstrate that “the balance of

these equities weighs overwhelmingly in favor of the party

seeking the injunction”); Zambelli Fireworks Mfg. Co. v.

Wood, 592 F.3d 412, 426 (3d Cir. 2010) (determining that

“discretion under Rule 65(c) to waive a bond requirement”

exists “in the exceptionally narrow circumstance where the

nature of the action necessarily precludes any monetary harm

to the defendant”).

50

Thus, the appropriate remedy here is a reversal of the order

denying the motion for preliminary injunction and a remand

with instructions for the District Court to set security in an

amount not to exceed $500 and to enter, on an expedited

basis,40 an order that preliminarily enjoins the Kingston

Defendants from (i) restricting access to and use of the Pierce

Street properties based on those properties’ actual or alleged

non-compliance with the 2023 Zoning Ordinance and

(ii) issuing daily $500 citations based on the Pierce Street

properties’ actual or alleged violations of 2023 Zoning

Ordinance.

CONCLUSION

For the above reasons, we will REVERSE the order of the

District Court denying the motion for preliminary injunctive

relief and REMAND for further proceedings consistent with this

Opinion.

40

See Kos Pharms., 369 F.3d at 732 (reversing and remanding

an order denying a preliminary injunction with instructions for

entry of a preliminary injunction on an expedited basis).

51

RESTREPO, Circuit Judge, dissenting.

The majority’s opinion contravenes a cohesive body of law

among our sister circuits interpreting the substantial burden

provision of the Religious Land Use and Institutionalized

Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc(a)(1).1

Commentators have described the courts as “coalesce[ing]

around a totality-of-the-circumstances test, examining whether

the government’s actions substantially inhibit religious

exercise, rather than merely inconveniencing it.” John

Kenneth Felter, A.B.A. Lit. Sec., Federal Claims Based on

Land Use Regulation, 13 Bus. & Com. Litig. Fed. Cts. §

149:44 (5th ed. 2025) (citation modified). But the majority

does not engage with this caselaw and merely offers in a

footnote the vague statement that “[o]ur sister circuits have

taken a variety of approaches,” followed by a string cite. Maj.

Op. 25 n.17.

Instead, the majority relies on RLUIPA’s separate

provisions governing prison inmates despite recognizing that

the substantial burden analysis in the prison context is “not

applicable” to RLUIPA land use cases. Maj. Op. 26 (quoting

Washington v. Klem, 497 F.3d 272, 277 (3d Cir. 2007)).

RLUIPA land use decisions uniformly caution against relying

on principles from prison cases because “land-use regulations

do not typically compel plaintiffs to ‘violate their beliefs’ in the

way that, for example, prison rules might require an inmate to

engage in conduct that goes against his or her religious tenets.”

Livingston Christian Schs. v. Genoa Charter Twp., 858 F.3d

1

Only the Fifth and Tenth Circuits have not precedentially

analyzed a land use regulation under RLUIPA’s substantial

burden provision. Cf. Grace United Methodist Church v. City

of Cheyenne, 451 F.3d 643, 660–63 (10th Cir. 2006)

(considering only whether the substantial burden provision

encompasses non-fundamental religious activities).

1

996, 1003–04 (6th Cir. 2017); see also Marianist Province of

United States v. City of Kirkwood, 944 F.3d 996, 1001 (8th Cir.

2019) (stating the court was “not swayed” by caselaw from the

prison context because land use plaintiff was “not being forced

to violate its religious beliefs”); Bethel World Outreach

Ministries v. Montgomery Cty. Council, 706 F.3d 548, 555 (4th

Cir. 2013) (rejecting application of substantial burden standard

in prison cases because “the Government lacks comparable

control in the land use context”).

The majority goes further afield, announcing its own

“specific legal rules” for RLUIPA land use cases. Maj. Op. 31.

The majority’s “legal rules” are anything but “specific,” as

evidenced by the majority’s sweeping conclusion that “in all

but the most dire circumstances, a land use regulation that

prevents access to or use of real property for religious exercise

will contravene RLUIPA.” Maj Op. 41. This approach not only

flouts the fact-intensive approach employed by eight circuits

but disregards our obligation to “tak[e] seriously the

requirement that a burden be ‘substantial’” in order to “avoid

an interpretation of RLUIPA that would exempt religious

institutions from all land-use regulations.” Livingston

Christian Schs., 858 F.3d at 1003; see also Roman Cath. Bishop

of Springfield v. City of Springfield, 724 F.3d 78, 96 (1st Cir.

2013) (recognizing that “RLUIPA does not mean that any land

use restriction on a religious organization imposes a substantial

burden—such a conclusion would stretch First Amendment

jurisprudence too far”).

The circuits have warned against a framework like the

majority’s that “effectively would be granting an automatic

exemption to religious organizations” and thus “usurp the role

of local governments” and improperly “favor religious uses

over secular uses.” Andon, LLC v. City of Newport News,

813 F.3d 510, 516 (4th Cir. 2016); see also Petra Presbyterian

Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir.

2007) (cautioning that “the requirement of substantial burden

is taken seriously” to avoid impermissibly “free[ing] religious

2

organizations from zoning restrictions of any kind”). The

majority’s approach also contravenes RLUIPA’s intent as

indicated by its plain language. As the Fourth Circuit has

explained: “By requiring that any substantial burden be

imposed by governmental action and by carefully balancing

individual rights and compelling governmental interests, the

language of RLUIPA demonstrates that Congress did not

intend for RLUIPA to undermine the legitimate role of local

governments in enacting and implementing land use

regulations.” Andon, 813 F.3d at 516.

Unlike the majority, I would follow the approach and

guidance of our sister circuits. The circuits consider two factors

that are particularly apposite here: (1) whether the plaintiff had

a reasonable expectation of religious land use or whether the

plaintiff’s burden was self-imposed; and (2) whether the

plaintiff had ready alternatives.

Under the first factor, it is relevant that Appellants knew the

properties were restricted in usage because “if a religious

institution acquires land knowing that it is subject to certain

restrictions, any burden resulting from those restrictions has

not been imposed by the government; but rather, the burden is

self-imposed.”2 Alive Church of the Nazarene, Inc. v. Prince

2

Contrary to the majority’s assertion, consideration of a

plaintiff’s conduct derives from RLUIPA’s limits, only

protecting against burdens that are substantial and result from

a “government . . . impos[ing] or implement[ing] a land use

regulation.” 42 U.S.C. § 2000cc(a)(1). To disregard a

plaintiff’s conduct would allow a plaintiff to “state a RLUIPA

substantial burden claim simply by alleging that it received an

adverse land use ruling.” Bethel World, 706 F.3d at 557 n.4.

Nor do I contend, as the majority charges, that RLUIPA has a

“sincerity-of-belief prerequisite.” Maj Op. 32 n.21. The inquiry

is not whether the plaintiff’s religious beliefs were reasonable

3

William Cnty., 59 F.4th 92, 106 (4th Cir. 2023); see also

Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield

Historic Dist. Comm’n, 768 F.3d 183, 196 (2d Cir. 2014)

(instructing district court to consider “whether the Chabad

reasonably believed it would be permitted to undertake its

proposed modifications when it purchased the property”);

Livingston Christian Schs., 858 F.3d at 1004 (recognizing that

when the plaintiff “obtained an interest in land without a

reasonable expectation of being able to use that land for

religious purposes,” it suffered no substantial burden when

land use regulations were enforced); Petra Presbyterian

Church, 489 F.3d at 851 (rejecting substantial burden claim

when plaintiff obtained property in industrial zone to use as a

place of worship despite knowing places of worship were

prohibited).

Upon purchase of the properties, Appellant Shimon

Hellinger knew that he could use the 44 Pierce property only

as an office space and the 239 Pierce property only as a single-

family home. Any changes to these uses without approval from

Appellee Borough of Kingston (the “Borough”) would

“automatically render” the certificates of occupancy for the

properties “null and void.” App. 217–18. Appellants, without

approval, began using 44 Pierce as a yeshiva and gathering

place for their congregation to pray and study together. They

used 239 Pierce to house the yeshiva attendees, housing as

many as ten or eleven students at one time with children as

young as thirteen living at the property. The Borough did not

“alter[] a legitimate, pre-existing expectation that a property

could be obtained for a particular land use,” and, therefore,

Appellants’ hardships are self-imposed burdens. Andon, 813

F.3d at 515.

or sincere, but whether the plaintiff reasonably expected to use

the property for religious purposes.

4

This first factor also considers the plaintiff’s “own actions,”

Livingston Christian Schs., 858 F.3d at 1004, including any

“unwillingness to modify its proposal in order to comply with

applicable zoning requirements,” Thai Meditation Ass’n of

Alabama, Inc. v. City of Mobile, 980 F.3d 821, 832 (11th Cir.

2020). See also St. Paul’s Found. v. Ives, 29 F.4th 32, 42–43

(1st Cir. 2022) (denying substantial burden claim where

plaintiff sought new use for property and was “unwilling to

confirm that the use designation . . . underlying the original

permit still applied”); New Harvest Christian Fellowship v.

City of Salinas, 29 F.4th 596, 602 (9th Cir. 2022) (rejecting

substantial burden claim where religious group “declined to

adopt the City’s proposed modification . . . or otherwise

reconfigure” the space). Over the course of a year, the Borough

sent Hellinger correspondence to schedule property

inspections and to explain the deficiencies in the use of the

properties and the process for addressing these deficiencies.

Hellinger did not respond or take any action to contest the

Borough’s position. Appellants’ dereliction weighs against the

substantial burden claim.

On the second factor, the substantial burden analysis

considers whether Appellants had alternative means of

carrying out their mission. See Marianist Province, 944 F.3d at

1001 (“We agree with other circuits that have concluded

requiring a religious institution to use feasible alternative

locations for religious exercise does not constitute a substantial

burden.”); Edgewood High Sch. of the Sacred Heart, Inc. v.

City of Madison, 95 F.4th 1080, 1088 (7th Cir. 2024)

(reiterating that “the availability of other adequate properties

to host religious activities may defeat a substantial burden

claim”); Chabad Lubavitch, 768 F.3d at 196 (directing district

court to consider “whether feasible alternatives existed for the

Chabad to exercise its faith”); Livingston Christian Schs., 858

F.3d at 1004 (identifying as a “helpful factor[]” whether the

plaintiff had a “feasible alternative location”); New Harvest,

29 F.4th at 604 (concluding that plaintiff’s access to other

locations “militate[s] against a finding of substantial burden”);

5

Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,

1228 (11th Cir. 2004) (holding that religious congregations

were not substantially burdened where they have “the

alternative of applying for a permit to operate only a few blocks

from their current location”). Here, importantly, after the

Borough deemed their properties unsafe for occupancy,

Appellants continued to operate at different locations. Rather

than engaging with the above precedent, the majority dismisses

the importance of alternative locations based on the

unsubstantiated justification that “there are several reasons

why governments may not want real property used for religious

exercise.” Maj. Op. 39.

Applying the proper totality-of-the-circumstances analysis

and weighing the factors other circuits consider would lead me

to affirm the District Court and hold that Appellants are

unlikely to succeed on their RLUIPA substantial burden claim.

***

Separate from the merits, this appeal fails on justiciability

grounds.

First, the majority runs afoul of the prohibition against

opinions “advising what the law would be upon a hypothetical

state of facts.” Chafin v. Chafin, 568 U.S. 165, 172 (2013)

(quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477

(1990)). In February 2026, the Department of Justice (“DOJ”)

and the Borough entered into a consent order requiring the

Borough to amend the 2023 Zoning Ordinance for the express

purpose of complying with RLUIPA. See Consent Order,

United States v. Borough of Kingston, No. 26-cv-00269 (M.D.

Pa. Feb. 6, 2026), Dkt. No. 4. The Borough approved the

zoning amendments on July 7, 2026. These amendments

resolve this case’s RLUIPA claims by permitting places of

worship, religious schools, and religious dormitories as of right

in all commercial districts and permitting such uses by special

exception in all residential districts. As this appeal solely

concerns the denial of injunctive relief, these amendments will

6

moot the appeal. See Lighthouse Inst. for Evangelism, Inc. v.

City of Long Branch, 510 F.3d 253, 260 (3d Cir. 2007)

(dismissing claims for injunctive relief under RLUIPA where

amendment “superseded the Ordinance in all relevant

respects,” and thus “mooted Lighthouse’s claims for injunctive

relief”).

The majority overlooks mootness under the pretense of

voluntary cessation. But our precedent establishes that where

zoning regulations are challenged as invalid, amendments

removing the challenged features moot claims for injunctive

relief; there is no voluntary cessation inquiry in these

scenarios. See id.; CMR D.N. Corp. v. City of Philadelphia,

703 F.3d 612, 628 (3d Cir. 2013) (holding that constitutional

claim regarding zoning ordinance was mooted by rescission of

ordinance’s height restriction). Moreover, it is not evident that

actions in response to a DOJ consent decree are voluntary. See

Env’t Conservation Org. v. City of Dallas, 529 F.3d 519, 528

(5th Cir. 2008) (“Far from voluntary, the City’s compliance . .

. has been compelled by an EPA enforcement action and the

resulting court-approved consent decree.”).

Additionally, the consent decree and ensuing amendments

bring the Borough under the ambit of RLUIPA’s safe harbor

provision, which enables the government to “avoid the

preemptive force” of RLUIPA “by changing the policy or

practice that results in a substantial burden on religious

exercise” or by “any other means that eliminates the substantial

burden.” 42 U.S.C. § 2000cc–3(e); see C.L. for Urb. Believers

v. City of Chicago, 342 F.3d 752, 762 (7th Cir. 2003) (holding

that, under the safe harbor provision, the “amendments to the

[zoning ordinance] render RLUIPA’s nondiscrimination

provision inapplicable”).

Second, the preliminary injunction seeks relief for

Appellants’ as-applied challenges—to reinstate Appellants to

their properties. To have a ripe claim in a land use case, zoning

authorities must have had “an opportunity to ‘arrive[] at a final,

7

definitive position regarding how [they] will apply the

regulations at issue to the particular land in question.’” Sameric

Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582,

597 (3d Cir. 1998) (alteration in original) (quoting Taylor Inv.,

Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1291 (3d Cir. 1993)).

Therefore, we have dismissed as unripe constitutional

claims based upon land use decisions because the plaintiffs

“did not give the locality an opportunity to make a final

determination regarding how to construe the applicable

ordinances and apply them to the particular property.” Id.; see

also Acierno v. Mitchell, 6 F.3d 970, 975–77 (3d Cir. 1993)

(holding constitutional claim premature where owner was

denied building permit but did not appeal the denial or seek a

variance); Taylor, 983 F.2d at 1292–93 (deeming claim unripe

where zoning officer revoked use permit and plaintiffs did not

reapply, appeal, or seek variance). There is no reason why the

same rationale should not apply to land use decisions under

RLUIPA and other circuits have reached the same conclusion

in analogous RLUIPA cases. See Grace Cmty. Church v. Lenox

Twp., 544 F.3d 609, 616 (6th Cir. 2008) (concluding RLUIPA

claims were premature where church made no attempts to

appeal special use permit revocation, complete the factual

record, or engage with zoning authorities); Murphy v. New

Milford Zoning Comm’n, 402 F.3d 342, 352 (2d Cir. 2005)

(deeming RLUIPA claims unripe because plaintiff failed to

seek a variance or appeal zoning commission’s violation notice

regarding prayer meetings held in plaintiff’s residence).

Here, as in the above decisions, Appellants did not engage

in the administrative process or take any efforts to appeal the

Borough’s determinations. Accordingly, we do not know how

the Borough would have actually applied the zoning ordinance.

Because the record is not sufficiently developed, a court cannot

8

properly adjudicate the merits of the as-applied claims that are

the subject of the preliminary injunction.3

For these reasons, I respectfully dissent.

Counsel for Appellants

Alexander M. Brunelle [Argued]

Counsel for Appellees

David J. MacMain

Stephen G. Rhoads [Argued]

3

Although the majority rejects these concerns because the text

of RLUIPA does not explicitly identify a ripeness requirement,

ripeness is a “prerequisite to all federal actions.” Peachlum v.

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

Presbytery of N.J. of Orthodox Presbyterian Church v. Florio,

40 F.3d 1454, 1462 (3d Cir. 1994)). Our Circuit has long

upheld the “importance of the finality requirement and our

reluctance to allow the courts to become super land-use boards

of appeals” in land use cases. Sameric, 142 F.3d at 598. The

weight of the RLUIPA caselaw says the same. See Guatay

Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 979

(9th Cir. 2011) (“All of the circuits to address this issue have

applied the final decision requirement to RLUIPA claims . . .

.”).

9