Roosevelt Planning Board overturns yeshiva decision
Executive vice president of Orthodox high school expresses disappointment
BY JENNIFER KOHLHEPP
Staff Writer

Roosevelt's Planning Board disagrees with its former zoning officer's decision that the local yeshiva is not violating borough ordinances.

In response to a September 2005 petition that was signed by more than 200 Roosevelt residents - which alleged that the yeshiva, an Orthodox Jewish high school operating out of the Homestead Lane synagogue, is violating borough ordinances - the Borough Council sent Zoning Officer Bob Francis to inspect the yeshiva on Sept. 23. Francis has since resigned as the borough's zoning officer.

Last October, Francis reported that he did not find the yeshiva to be in violation of any ordinances. When he looked at the school, he said, it had 12 students. He also reported that there was no residential use of the synagogue and that the house next door, or the parsonage, was being used by the yeshiva as an office.

In his report, Francis concluded that since the yeshiva is a religious institution, "it is allowed to have religious instruction."

He based his conclusion on a letter from Borough Attorney Ira Karasick. In the letter, Karasick stated that "the rights of a private school are the same as a public school, a permitted principal use in the R-40 zone, and therefore the community and board cannot deny them to conduct a yeshiva."

Roosevelt resident Bert Ellentuck, who lives next door to the yeshiva, appealed Francis' decision with the borough's Planning Board. The hearing on the appeal began on Dec. 15, but did not conclude until last week when, on Sept. 12, the board voted to overturn Francis' decision. Board member Lou Esakoff was the only member to vote against overturning the zoning officer's decision.

Hearing continues

Jane Rothfuss, the board's vice chairperson, presided over the standing-room-only hearing, as Chairperson Ralph Seligman had to recuse himself because he lives within 200 feet of the synagogue. Board members Michael Ticktin, Mayor Elsbeth "Beth" Battel and Councilman Michael Hamilton also recused themselves from the discussion.

Planning Board Attorney Michele Donato determined that board newcomers Alison Petrilla, Steven Yeger and Jaymie Kosa were all qualified to vote on the matter.

Donato informed the board that the question was whether the zoning officer was right in allowing the yeshiva to begin its operations without first appearing before the board to present its site plans.

Edward F. Liston Jr. represented Yeshiva Me'on Hatorah, of Riverdale, N.Y., during the hearing. The yeshiva signed a four-year lease last year with Congregation Anshei Roosevelt for use of the synagogue property. Yeshiva classes began for a group of first-year students in September 2005. This September, the yeshiva added another class of students, bringing the total to 34.

Expert testifies

Liston's co-council, Bruce Shoulson, of Lowenstein Sandler in Roseland, introduced Rabbi Zevulun Charlop, who is the Max and Marion Grill dean of Yeshiva University's Rabbi Isaac Elchanan Theological Seminary (RIETS) in New York City. Shoulson is an expert in Jewish law, tradition, customs and practices, according to Liston.

Charlop testified about what constitutes a house of worship in the Jewish faith. He said a yeshiva is a place where people congregate to study the Torah and pray three times a day. He said "almost every synagogue" has a house of study.

"A synagogue may not necessarily be a yeshiva, but a yeshiva is also a synagogue," Charlop said.

Attorney Ronald S. Gasiorowski, of Red Bank, represented the Roosevelt Preservation Association, which includes Ellentuck and some other borough residents. When Gasiorowski asked the rabbi if any members of Congregation Anshei Roosevelt attend the yeshiva, the rabbi said he had no knowledge of that. He also said he is not familiar with the relationship that Congregation Anshei Roosevelt has with Yeshiva Me'on Hatorah, but that congregations and yeshivas usually have their own corporate bodies.

Shul head testifies

Roosevelt resident Elly Shapiro, who is president of the Homestead Lane synagogue, also testified.

Yeger asked Shapiro how integral the yeshiva is to the synagogue.

Shapiro, who signed the lease with the yeshiva, said they are "one and the same." She said the yeshiva and the congregation have a "barter system" in which the yeshiva provides rabbinical services for the congregation in exchange for the use of the synagogue building.

When asked how the congregation has grown since the yeshiva started using the building, Shapiro said, "We have grown [by] a couple of members, but there were also members who dropped out."

There are currently about 49 members of the congregation, according to Shapiro.

Kosa asked Shapiro how she could call the synagogue and the yeshiva "one and the same" when there is a legal partition separating them, referring to the lease.

"We did that in order to protect the original members of the synagogue," Shapiro said. "We felt - the board and I - that for the first four years we would not have any members of the yeshiva serve on the board to allay fears."

Shapiro testified that the congregation and the yeshiva have not been able "to get to know one another and move forward" because there has been "so much legal stuff in the way."

When asked who is currently living in the parsonage, Shapiro testified that its residents are the rabbi and six junior rabbis who are students studying to be rabbis.

During her testimony, Shapiro also said that a community cannot tell a religious organization what to do.

"It's our synagogue," she said. "It was our decision to try to rejuvenate what was a dying congregation."

Public speaks out

During the public portion of the hearing, resident David Burdick told the board that he has seen a "tremendous change" in the use of the synagogue's property.

Ellentuck told the board that the preamble of the borough's zoning ordinance states that it was created to ensure the borough's proper growth, and so that residents can enjoy a quality of life. He said he believes the yeshiva is not working in conformance with the preamble or borough ordinances.

He said the synagogue is in use from 7:30 a.m. to midnight or 1 a.m. He said the synagogue's lights are always on and that cars are always parked near it along both sides of the street since the property does not have a parking lot.

"That doesn't qualify as proper use of the property," Ellentuck said. "It is an intensification of the use."

Ellentuck also addressed the fact that the borough had previously granted a nursery school a variance to operate out of the synagogue property. He said comparing the nursery school's use of the property to the yeshiva's use of it "is like comparing a marble to a bowling ball."

"The nursery school had shorter hours," Ellentuck said, "and when the students left the building, they were roped together.

"This school has 34 boys that are a hazard to themselves walking up the streets," he added. "They are nice boys, but they are a hazard to the community and to themselves."

Ellentuck said Roosevelt is a community of single-family houses on .5-acre lots.

"I do not think [the yeshiva's use of the property] is appropriate," he said. "I do not think it conforms to the zoning ordinance."

Liston argued that Ellentuck filed the appeal because he had previously asked the synagogue on many occasions since 1982 if he could purchase the vacant and wooded lot between his home and the synagogue.

"He has a predisposition because he couldn't purchase the lot," Liston said.

Shan Ellentuck, Bert's wife, told the board that her family tried to purchase the land for the purpose of maintaining it as an unused lot. She also pointed out to the board that the yeshiva's lease with Congregation Anshei Roosevelt automatically becomes a 25-year lease as soon as the yeshiva receives permission to operate on the property.

Roosevelt resident Melissa Branco said that prior to the yeshiva's use of the synagogue property, Homestead Lane "was a quiet street."

"Briefly," she said, "life on Homestead Lane is not pleasant anymore. Cars and vans are up and down the street starting at 7 a.m."

She said the yeshiva generates about 50 trips on average each day and said the school does not shut down until after 1 a.m. each night.

"The kids are living their lives, and I have no problem with them," she said. "I just don't want to live across the street from them. They need 10 acres and proper space to conduct their lives."

Resident June Ord told the board that someone from the borough should go back to the yeshiva now to see if it is still complying with borough ordinances. She also said that the borough will need more services for any type of growth.

Attorney conclusions

In summation, Liston said the synagogue and the yeshiva are a single entity by virtue of religious practice in the way in which they operate and where they operate. He argued that the present use of the property is a pre-existing, nonconforming use because the property is less than 2 acres, but township ordinances require houses of worship to have at least 2 acres.

"The municipal government may not deny or reasonably limit the religious use of land," Liston argued. "There was no change in the eyes of the law, and the zoning officer saw that to be true."

Liston also alleged that any reversal of the zoning officer's decision would be a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000. RLUIPA states that municipalities shall not impose or implement a land use regulation in a manner that imposes a substantial burden on religious exercise.

Liston told the board that if it overturns the zoning officer's decision, "the peril is a violation of federal law.

"There is nothing more central to our freedoms here," he said, "than the freedom to exercise religion."

Gasiorowski said he was a bit offended by Liston's comments.

"I resent the argument that in some way if the board reverses the zoning officer's decision, it is an act of anti-religion," he said. "All that happens if you reverse the decision is that the congregation and yeshiva would have to make a formal application before the borough's Planning Board for site plan approval."

Gasiorowski argued that there are currently two principal uses on the property, which borough ordinances do not allow. He told the board that a house of worship under the provisions of the borough's zoning ordinances is not a permitted use, but rather a conditional one.

According to municipal land use law, a conditional use is only permitted in part of a zoning district upon showing that such a use in a specific location will comply with the conditions and standards for the operation of such use as contained in the zoning ordinance and upon the issuance of authorization by the Planning Board.

"This never escapes being a conditional use," Gasiorowski said.

Donato instructed the board that Roosevelt ordinances state there can only be one principal use per lot. She said schools and houses of worship are allowed on 2-acre lots.

"This doesn't meet the conditions of use standards," Donato said. "It's rather clear on its face. That doesn't mean that the use is prohibited. It means some sort of review by the board is necessary."

Donato informed the board that nonconforming uses such as the synagogue "are not to be expanded."

"It's very, very clear in the law," she told the board. "Any changes in a use should be determined in requisite review of the board."

Board makes decision

When the board had its final say, Rothfuss voted to overturn Francis' decision.

"It is an increase in use of a conditional use," Rothfuss said, "and I think that's the problem.

"A use variance is needed to expand this conditional use," she added.

Yeger, who also voted to overturn Francis' decision, said he is troubled that Roosevelt only has one house of worship and that the zoning ordinance regards it as a conditional use.

"I'm not comfortable with the town saying that nothing can exist there," Yeger said, adding that he is also uncomfortable with the possibility of the yeshiva putting a dormitory there.

"This use seems to cry out for regulation," he said. "I would like to see them [yeshiva representatives] come before the board with their plans."

Esakoff, who cast the lone vote in favor of Francis' findings, said, "I am not in favor of or against the synagogue. I am in favor of the zoning law. I voted in favor of the zoning officer's findings."

Esakoff, who has served twice on the Planning Board and also served as the chair of the borough's former Zoning Board, said he based his decision on borough ordinance 23, which was adopted in 1947, and ordinance 97, which was adopted in 1979.

Esakoff said the latter ordinance, which determined that houses of worship are a conditional use in the borough, came after the construction of the synagogue in town.

"By that time, the synagogue was well established," he said. "I have to believe the building was grandfathered in ... it is grandfathered in so this synagogue does not fall under conditional use."

What next?

Josh Pruzansky, executive vice president of the yeshiva, said the yeshiva is disappointed with the board's decision.

"We are obviously disappointed," Pruzansky said, "and it stems from the fact that the zoning officer in consultation with the borough attorney found no issue with the yeshiva."

When asked what the yeshiva plans to do regarding the decision, Pruzansky said, "There is nothing we can do until the resolution is passed and memorialized."

When asked if the yeshiva would appeal the decision, Pruzansky said it is currently exploring all options.

"Together with our council we will make a decision," he said.

Shapiro also expressed disappointment in the board's decision. She said the congregation's board of trustees "basically feels that the original decision was a sound [one] based on existing zoning ordinances."

Shapiro invited members of the community to participate in the services.

The congregation's focus, she said, will remain to "have a viable synagogue in the town of Roosevelt with services held year-round."