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Midrash Sephardi v. Town of Surfside

The original federal complaint in this case was filed on June 4, 1999 by Midrash Sephardi and Young Israel of Bal Harbor, two small Orthodox Jewish congregations formed in the 1990s. Both were meeting in space on the second floor of a bank building at 9592 Harding Avenue in Surfside's B-1 zoning district. The dispute had began on May 28, 1999 in state court, when Surfside sought to enjoin the congregations from using the premises as synagogues and enforce $1,000 a day fines.

Surfside permits churches and synagogues in only one of the town's eight zoning districts (RD-1, two-family residential), and even there only after issuance of a Conditional Use Permit (CUP). Initially, plaintiffs challenged the constitutionality of the portion of the ordinance setting out procedures for obtaining a CUP, but the challenge was dismissed for lack of standing. (They had not applied for a CUP, on grounds that there was "a substantial likelihood that it will be enforced against the plaintiffs based on Surfside's conduct to date.")

Religious assembly uses are prohibited in the other seven zoning districts, even though other private clubs and other non-religious assembly uses are permitted. In an order issued on July 13, 2000, the court held that the zoning ordinance was facially neutral and that there was no evidence of discriminatory purpose or intent in creation of the code, and dismissed the plaintiff's equal protection claim.

On September 20, 2000, plaintiffs asked for the court's leave to amend their pleadings to include an additional claim based on RLUIPA, which was not actually signed into law by President Clinton until two days later, on the 22nd. Magistrate Stephen T. Brown denied the motion on October 2, but later, on November 15, granted a motion for reconsideration of the order and allowed the addition of the RLUIPA claim.

On December 8, 2000, Surfside filed a notice that it intended to challenge the constitutionality of RLUIPA, and the U.S. Department of Justice intervened in the case to defend the statute on February 16, 2001. Proceedings dragged on for many months, and cross motions for summary judgment were filed.

On January 3, 2003, Judge Brown granted Surfside's motion for summary judgment on the Free Exercise and Equal Protection claims, finding that there was no intentional discrimination in the enactment of the zoning ordinance. But he refused to grant the motion for summary judgment on the RLUIPA claim, saying "the Court finds that there are issues of fact with respect to whether plaintiffs are 'similarly situated' to a private club, or any other non-commercial uses with respect to which they claim they are being treated equally," and thus entitled to relief under RLUIPA's equal terms provision. A hearing was scheduled on the question.

On April 4, 2003,Surfside asked Judge Brown to withdraw his notice for a hearing on the "similarly situated" issue, and on May 19, he did just that, holding that "differential treatment of houses of worship" from private clubs was reasonable. He cited a deposition from a "professional planner, who testified, in sum, that generally houses of worship do not contribute to the economic vitality of these [business and tourist] districts, in the manner that the other uses do."

On June 5, Judge Brown issued an order granting Surfside's request for an injunction against the congregations, and on July 8 he issued a permanent injunction, to be effective in 90 days (on Yom Kipur!), barring them from "occupying or operating synagogues or houses of worship" in the B-1 and RT-1 districts and at the bank building. On September 18, he denied a motion for a stay pending appeal.

Plaintiffs appealed the case to the 11th U.S. Circuit Court of Appeals, and on October 3, 2003 the 11th Circuit issued a stay of the lower court injunction.

On November 24, 2003, The Becket Fund for Religious Liberty filed an amicus curiae brief with the 11th Circuit, focusing on the question of "whether RLUIPA and the Constitution permit a city to treat religious assembly land uses (e.g., synagogues) worse than a myriad of secular assembly land uses (e.g., private clubs and lodge halls, theaters, cinemas, health clubs, music studios and schools)."

The Becket Fund brief noted that "this legal question may be rephrased as follows:

"The answer under both RLUIPA and the Constitution to all of these questions is no."

Oral arguments before the Eleventh Circuit have been scheduled for January 13, 2004.

Midrash Sephardi is represented by attorney Simon Schwarz, of Miami. Young Israel of Bar Harbour is represented by Nathan and Alyza Lewin, of Washington, D.C. (Midrash Sephardi, et al. v. Town of Surfside, et al., U.S. District Court for the Southern District of Florida, Case # 99-cv-1566; U.S. Court of Appeals for the Eleventh Circuit, No. 03-13858-C)

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