Are Mosque Denials a Sign of Anti-Muslim Bias?

Recent media coverage of two Virginia mosque permit proceedings repeats charges of local bigotry and bias directed at the Islamic organizations. At the same time, news reports featured the same accusations, this time originating from a New Jersey federal judge’s ruling against Bernards Township zoning officials and residents. In all of these cases, the proceedings involved a mosque application to build in a residential or quasi-residential area.  

Yet case studies suggest that other priorities may be compelling the residents and municipal officials in the neighborhoods where complex mosque applications are being filed.

For example, in 2011 the city council in Bloomington, Minnesota readily approved an application for the Al Farooq Youth and Family Center (now known as Dar al Farooq) to purchase and occupy a school facility with gym from a Christian organization. The application described a community center with a place of assembly and a private school and day care. Dar al Farooq submissions and testimony committed to maximum attendance of two hundred participants during the most popular Eid services. Based upon these terms, the council agreed to a conditional use permit with few restrictions other than those that would prevent street parking.

The city council could have taken the real-time description of wide-ranging activities presented on DAF’s own website into account. Contrary to public testimony, attendance was immediately hundreds higher than promised, parking consistently overflowed onto neighborhood streets, and unapproved activities were added including advertised university classes and an administrative office. Five years later, these complaints, and more, persist. Events still run late into the night with hundreds of cars coming and going for services throughout the night during month-long Ramadan observances.

The vital questions in mosque cases are: do community members have valid concerns regarding unique mosque practices, and are they right to expect that these questions will be addressed during the hearing process? As with any religious application to site a facility, it should not be a surprise that residents are anxious to know the levels and intensity of activities coming to their neighborhoods. 

When all of societal, familial, and religious life is centered in the mosque complex, there will be a number of daily activities with comings and goings that overlap or occur in rapid succession. The entire month of Ramadan may entail burdensome traffic and heavily attended events. But most conflicts occur over traffic for the peak Friday prayer service that is held during the workday on Fridays. Attendees for this peak weekday service are more likely to arrive solo as they come from work, delivery routes, or taxi services. The fact that this meeting is on a Friday often implicates traffic and congestion concerns related to nearby school schedules. It is reasonable to expect that these traffic and parking plans will need to be considered. Residents are right to want reliable answers and to expect a use permit that protects residential interests as well as religious siting rights.

Delicate balancing is required to avoid discriminatory results and many local land use planners are not prepared to administer the legally complicated proceedings. Some local officials are volunteers and most are part-time. Many are not educated to competently address the complex and technical regulatory issues underlying religious applications. Behind the officials on the dais are municipal attorneys and municipal insurance carriers that caution against risking these difficult and costly lawsuits.

A federal law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA) was designed to aid religious organizations that were not getting a fair shake at city hall. This law, as passed in 2000, makes it very difficult for municipalities to “substantially burden” religious applicants and they may not discriminate between faith groups or favor secular assemblies over religious ones.

As a force multiplier for Muslim applicants, the DOJ has intervened in response to Islamic complaints of even “subtle, hard-to-prove discrimination” at an unprecedented rate over the last eight years.

In keeping with the DOJ’s focus on expanding legal discrimination theory, an Obama-appointed judge who ruled against Bernards Township in the New Jersey case, determined that the religious basis for the core complaint excused the usual requirement to justify his findings with comparative examples that would demonstrate discrimination. This was, as he acknowledged in his written opinion, a departure from controlling appellate precedent. He also concluded that he was not required to prove that officials intended to discriminate.

There is understandable tension between federal religious facility siting protections and the state zoning authority that vests local officials with the responsibility to protect the “quiet, use and enjoyment” rights of residential homeowners. Complying with federal and state law -- while still fulfilling the civic duty to protect homeowner interests -- requires careful documentation and evenhanded application of ordinances in the permitting process.

Most importantly, the entire process, including the all-important final permit and terms, demands accurate testimony from the applicant. For both of the Virginia proceedings noted above, zoning officials and community members investigated external sources to learn that there were many more activities planned for the mosque site than indicated on the application. All permit allowances and enforcement mechanisms, including potential revocation of the permit, will rely on the level of precision that informs the final agreement.

Whether the religious land use application is Islamic, Christian, or Jewish, municipalities should establish a broad line of informed questions. Officials should tailor ordinances to flexibly adapt to unique applicant usage patterns. For example, in the interest of addressing traffic and parking concerns in an evenhanded way, some localities have implemented a trip count methodology to regulate the numbers of entries to a specified parking lot during the highest traffic residential periods.

Rather than reflexive complaints that diligent inquiries on behalf of neighborhood residents into traffic, sewer, parking, and occupancy loads are a cover for discrimination, Islamic applicants might first focus on the accurate testimony needed for a respectful relationship with zoning officials and concerned residents. Like the fences that make good neighbors in some cases, facts and realistic expectations are essential to a working three-way contract between local government, the neighborhood, and a busy socio-religious complex.

Karen Lugo, constitutional lawyer, and author of Mosques in America: A Guide to Accountable Permit Hearings and Continuing Citizen Oversight.