The lot is just too small.
That was the decision of the Millburn Zoning Board of Adjustment last night, when they voted towards the end of a five and a half hour meeting last night at Millburn High School to deny Rabbi Bogomilsky’s application for a variance to build a 16,000 foot House of Worship for the Chai Center for Living Judaism in Short Hills on a lot combining 1 and 7 Jefferson Avenue last night. Current Millburn zoning regulations stipulate that a lot for a House of Worship must be three acres in size. While the board voted that several items classified as variances by objectors to the Chai Center, represented by lawyers for the Gamboni family, were not really variances, the vote that the three-acre size needed to be upheld in this case effectively nixed the application.
The board also rejected most of the alleged variances brought by the objectors to the proposal, focusing primarily on the three known variances in the Chai Center application. Chairman Joseph Steinberg rejected what he called the more “strenuous” objections made at earlier meetings. He was first to weigh in with this decision, after opening the meeting by calling the case the most complicated one he had ever had to deal with on the board.
It’s a victory for Save Millburn, a group of citizens opposed to the proposal, and for the Gamboni Family, which have opposed the Chai Center’s proposals from the beginning, as well as for many residents who spoke at the meeting. For the rabbi and his congregation, it is more likely just a break in the process, as they are almost certain to appeal the decision to a higher court.. As Rabbi Bogomilsky’s lawyer left, he indicated that this was probably the case. Asked if they will be going higher than Millburn Township, “oh yeah,” he said. The synagogue’s position, as indicated on its website, is that the Township of Millburn has improperly obstructed its attempts to open this center.
Most of the long meeting consisted of admitting public comment into the record; more than 40 people spoke. At the height of the meeting, it appeared as though 300-400 people were in the auditorium. At least 50 remained for the non-public part of the meeting, involving the Board’s deliberation and vote, “until the bitter end” as Steinberg called it, at 1 a.m.
Hearings on the application have been going on since 2009 (several of which have been reported on in Baristanet; see a report from August 2010 and November 2010), when Millburn Township settled out of court with Rabbi Bogomilsky, who was countersuing the Township following a suit brought by Millburn against the rabbi and his wife which asked for a permanent injunction to prevent prayers from taking place. The settlement reached then allowed the Chai Center to continue its practices while they filed the appropriate applications before the Board of Adjustment . At that time, the Rabbi’s lawyer Philip Pfeffer of Chadbourn & Parke LLP told the Millburn Item that the surveillance from the town on the property, including running background checks on visitors, was abusive.
At the opening of the meeting, Board member Roger Manshel made a surprise announcement to recuse himself from the board. Manshel received criticism at the last meeting when he said to the rabbi at the Jan. 31 meeting, “You have a differing view from everyone in this town and you do what you want to do anyway” (full disclosure: this reporter wrote a letter objecting to this reported statement to the Millburn Item, which also reported that at that meeting, a member of the public called Manshel a Hitler). Lawyers for both sides thanked him, and he left.
Public commentary had originally been scheduled for the last meeting, but had been put off until last night when the Jan. 31 meeting ran long. Board Chairman Joseph Steinberg informed the large crowd how the evening would go, that everyone speaking would need to sign in first and be held strictly to a three-minute time limit. Anyone represented by lawyers for either side could not be heard, nor could anyone on the governing body of the Chai Center. Lawyers for each side could the have 10 minutes for summation, after which the public portion of the meeting would be closed, although the public was invited to stay and listen as the Board debated and then voted. A court reporter took everyone’s oath and name, and recorded the entire evening.
“This is not a beauty contest or popularity contest,” Steinberg reminded the audience. “The federal and state laws and ordinances of the town have long since made the decision that it’s a good thing for a house of worship to move into the community, it’s a good thing. A religious institution is inherently beneficial to a community.” He pointed out that the board was a land use board, and nothing else. The variances asked for were the two front yard set backs, and a minimum three acre conditional use variance. The board would vote on the objectors’ deisgnation of several other items as variances.
Before the public comment began, the board heard a few questions from the public to the rabbi regarding his testimony, since there had been no time for that at the last meeting. To a Mr. Delanski of Cedar Street, who asked how the rabbi would feel if one of his neighbors proposed to build an enormous building “with a swimming pool and parking,” the rabbi replied that it depends who’s benefitting the proposal, but “I’m a Libertarian, so you’re asking the wrong guy.” He said that he believes people should have the freedom to do what they want to on their own property.
The bulk of the comments were from residents worried about the Chai Center’s impact on their neighborhood. Many people spoke about the bad traffic on Old Short Hills Road, which resident Nancy Wohlburckone said is really the “Livingston-Springfield Turnpike,” and how this would make it even worse. Many residents also spoke of the bad precedent that the board approving this variance would set. Tom Harte, of 48 Jefferson Avenue, said “this would be the beginning of the urbanization of the town,” and praised the township’s master plan. Applause for his statement was quickly silenced by Steinberg, who said “we will not have that tonight, on either side of the issue.”
Lynford Graham of Short Hills said that the plans for the Chai Center were strikingly similar to the Chai Tots Facility at 20 Millburn Avenue in Springfield. The facility was evicted in 2011 for non-payment of rent, he said, and a lawsuit is pending. He said that if a childcare facility was ever planned, it should have been studied, and hasn’t been. He put some photographs of that facility into the record.
Mike Becker, who works for the Concerned Millburn Association but is not one of their officers, wondered whether the Chai Center’s Millburn Avenue store, which is now in foreclosure, would move to the Chai Center on Jefferson Avenue. He also talked about precedences to other institutions to buildings that have inherently beneficial use, such as hospitals or day care centers. Like several other members of the public, and some of the Board when they voted, he pointed out that the rabbi knew about the three-acre rule when he bought the property.
Several people who attend the Chai Center spoke in support of the proposal.
David Gordon talked about the Chai Center as the spiritual home of his children for 13 years, and would like it to be an official spiritual home for Millburn. He pointed out that no new house of worship has been built here in more than 40 years. Residents of the town should know that numerous efforts had been made by the rabbi to find a location, that two other sites were attempted to be purchased prior to purchasing the one on Jefferson Avenue, and in both cases, township committee members interfered.
Later Tammie Roddner, who said she has been a member of Chai Center for three years, before that, was a member of B’nai Israel, also began talking about the Rabbi’s previous attempts to buy an appropriate site which she said had been blocked by members of the Township Committee (see the Chai Center’s description here). Steinberg interrupted her to say there was no such evidence before this board, but could only consider the land use issues before the board. She then said “this is a right to worship issue, masquerading as a land use issue,” and urged the Board to “set the past right, and end the acrimony.”
Harvey Berger pointed out that five houses of worship in town do not meet the three-acre rule in the community. Mitchell Halpern, who lives across the street from the Chai Center, said that the center was unlikely to affect traffic badly in the area, but that it is already bad. “If anybody lives in town trying to catch the 7:25 am train, that’s traffic.”
“The elephant in the living room is that if you deny the application, Millburn will be a place where no house of worship can be established,” said Matthew Sweetwood, who told Baristanet he is not a member of the Chai Center. “If this goes to the Supreme Court, it will be bad for the town and cost the township a lot of money. It doesn’t pass the smell test.”
Rabbi Bogomilsky said he is conferring with the lawyers as to what the next step is. Meanwhile, they will continue to hold services at the Chai Center, because the township had agreed not to interfere with any of their activities while the legal process was going on.
“If this goes to the Supreme Court, and it might, and it takes 10 years, the town’s agreement is that during that period of time they won’t enforce any zoning laws against any of our activities.” The township is currently attempting to void this agreement, but, said Bogomilsky, missed their court date to respond to his filing. Therefore they are asking the judge to dismiss the case as frivolous.
For the Millburn Zoning Board of Adjustment, the long night of hearings is finally over. For Millburn Township, the Chai Center remains an open question.