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Synagogue lawsuit claims University Heights violated religious freedom; mayor says he's enforcing building code

Jewish community upset by private investigator in front of University Heights Shul
Posted at 5:47 PM, Oct 24, 2021

UNIVERSITY HEIGHTS, Ohio — Representatives for a synagogue in University Heights have filed a federal lawsuit against the city amid a dispute over zoning and a controversial decision by officials to hire a private investigator to monitor their residential shul, or synagogue, during Rosh Hashanah services.

In September, the University Heights Jewish community expressed their concern and opposition to the city's decision to hire a private investigator in an unmarked SUV to park in front of their shul to make sure they were in compliance with occupancy limits. Two days after the incident, Rabbi Eric Frank addressed the concerns with council members at the University Heights City Council meeting.

Frank said the incident left mothers walking with their children to services in the neighborhood “deeply traumatized," and was a “huge concern."

But while some council members apologized to the Jewish community and said they didn't condone hiring a private investigator, University Heights Mayor Michael Dylan Brennan said he has immense respect for the Jewish community, and the move to post the private investigator was simply to ensure safety.

“First of all this is a house, this is not a commercial building, this is not a house of worship, this house does not fulfill the building standards set forth by the state. There are safety issues here, there are fire considerations here, we conducted an administrative search warrant back in April, there were live wires hanging from the ceiling of the house,” Brennan said. "This facility is not equipped with emergency exits to allow them to escape. We would like to come back to the negotiations table, we’d like to speak candidly and be able to craft a resolution.”

On Oct. 13, the synagogue, Rabbi Shnior Zalman Denciger and University Realty USA LLC filed a lawsuit in the U.S. District Court claiming that the City of University Heights is violating the shul's "right to free exercise of their religion guaranteed by the United States and Ohio Constitutions, RLUIPA, and Ohio common law."

Representatives for the synagogue, known as the Aleksander Shul, claim in the lawsuit that the city's land-use regulations effectively prevent any new house of worship from starting in the city and that the Aleksander Shul is the only place of worship for many in the city to exercise their religion, as it's within walking distance, and per the Orthodox Jewish belief, residents do not travel in cars on the Sabbath and need to walk to and from a shul three times every week, once on Friday evening, once on Saturday morning, and once on Saturday evening.

"The City, however, has taken various actions to shut down Orthodox Jewish shuls, including the Aleksander Shul, and the City’s zoning scheme makes it impossible to locate any parcel within the City where a place of worship can legally operate," the lawsuit states.

The lawsuit filed on behalf of the Aleksander Shul claims that it is not possible to start a new house of worship that is in compliance with city ordinances, specifically ordinances in Chapter 1274, because "places of worship can only attempt to locate in a very small number of lots within the City, and even then, they are only permitted if the City grants various variances, which are subject to unconstrained discretion and are therefore an unconstitutional prior restraint on Plaintiffs’ religious expression and exercise."

When looking at the city's requirements for houses of worship, the Aleksander Shul lawsuit noted that University Heights only allows them in three zoning districts after obtaining a "special use permit" under a code that "makes it impossible to operate a house of worship on any existing parcel in the City due to its restrictions."

Those restrictions, which the synagogue said include having frontage on one of six designated streets and having a minimum lot area of three acres, leave just three parcels that meet the criteria and none that meet the criteria and all of the requirements of Chapter 1274, the lawsuit states.

In the lawsuit, the synagogue states that University Heights' Orthodox Jewish community has grown in size and there is a need for more houses of worship, including the Aleksander Shul, and that the city's ordinances are preventing the community from being able to worship in the city.

The lawsuit addresses the city's stipulation allowing the operation of the shul to continue on a limited basis while it was expected to make "alternative arrangements" to move worship to a place that meets the city's ordinance requirements and that because the requirements are nearly impossible for them to meet.

Some of the restrictions placed on the Aleksander Shul include:

  • A 36-person capacity limit
  • Services permitted only on Shabbos and high holy days of Rosh Hashanah, Yom Kiper and Sukkot
  • Services not permitted on other days under any circumstance
  • Private investigator monitoring the shul

The synagogue requests that the city allow the Aleksander Shul to continue operations as a house of worship without the limitations of worship.

You can read the entire lawsuit here.

Mayor Brennan issued the following statement at the University Heights city council meeting on Oct. 18 in response to the federal lawsuit:

Last week, University Realty LLC and the Aleksander Shul defendants filed a lawsuit in federal court. The city was formally served today. The defendants asserted no new claims. They assert nothing that they had not already asserted last month in state court. The new filing was made in violation of our mutual agreement to mediate and to file no more court documents, other than those to extend the TRO [temporary restraining order] and formalize a mediation order, until after we have had a mediation. There was no deadline that necessitated the filing of this additional court action—the state court already has jurisdiction. I was disappointed that the Aleksander Shul defendants took this action, however, that does not change the city's position to seek mediation in an effort to bring this matter to resolution.

Since 2018, my administration has sought to bring to the table Rabbi Shnior Zalman Denciger and the Aleksander Shul stakeholders. They disregarded our overtures for a meeting until we brought charges against University Realty USA LLC in Shaker Housing Court in 2019. Then, and only then, did they meet with us for the first time in September of 2019. And eventually, they would go to our city planning commission where they missed their deadlines and requested repeatedly to be taken off the agenda in 2020.

I will not recount here the full timeline since then. Suffice it to state, the following has been consistent—Actions by the city and this administration have been calculated to bring the Aleksander Shul defendants to the table and to identify and resolve issues of public safety, including violations of the state building code and state fire code.

For nearly two years now, the city has been aware that the lower level that has been used as a library and assembly room for over 100 people has only one means of egress. The basement area, used as an assembly room, had no fire exit, no fire extinguishers, open flame and bowing exterior walls. As recently as this past summer, there were over 30 documented electrical violations, including dangling and exposed live wires. We learned this initially in April through the execution of an administrative search warrant. The house was then subject to an order to vacate by the building commission.

In spite of that order, Rabbi Denciger continued to hold daily meetings in a dangerous house, endangering members of the public who attended or otherwise entered the house. And during that time, the Aleksander Shul defendants pulled no permits and made no repairs. The stipulated TRO, among other things, required them to resolve those electrical violations, promoting public safety, before they could resume meeting in a limited capacity. They then pulled permits and made the electrical repairs. That didn't happen without our lawsuit in state court. Their refusal to act in their own self interest and in the interest of their congregation, and refusal to voluntarily resolve these housing and building code issues, necessitated the legal action taken by the city.

While the Aleksander Shul defendants have endeavored to re-frame this case as one regarding religious freedom, this is and remains a case not only about residential zoning, but about the state building code. This city may not, and can not, waive the building code. Having a certified building department, the state requires the city to enforce the building code. The city has a legal duty to enforce that code as a matter of law for reasons of public safety. When property owners do not respond to the city's letters or building department orders, that leaves the city with no recourse but to turn to the courts, as we do with all property owners who refuse to follow the code.

There was no legally necessary reason for naming me personally in a third-party complaint or filing a separate federal action against the city. Rather than legal, these acts are political, especially in consideration of the timing, and were meant to incite the community against me, as well as personally incite me and to offend me. Just as calling me an anti-Semite was meant to incite and offend me, as well as an effort to not only impugn my character and destroy my reputation, but in hopes that I would be so angry and offended that I would cause the city to abandon our efforts.

While I am offended, I remain undaunted. I will discharge my duty, my oath of office to support and defend the law, and I will make sure the city stays the course. Meanwhile, the Aleksander Shul defendants suggested a mediator, then rejected their own selection, then suggested another mediator who ultimately could not be scheduled, and now they're on their third suggested mediator and difficulties in scheduling continue. This could be viewed as an effort to run out the clock, but no matter who sits in this chair, the obligation to enforce the law comes with the office. We will mediate the case. If we don't, it won't be because the city didn't do what it could to bring the parties to the table.

A preliminary injunction hearing remains scheduled for Dec. 3 and Dec. 6. These have been rescheduled twice already to facilitate mediation. Eventually, the court will run out of patience and the hearing will proceed if mediation does not.

The law firm representing the Aleksander Shul issued the following statement:

Suit challenges oppressive zoning laws used to prevent Orthodox Jewish prayer
On October 13, 2021, Storzer & Associates, P.C. clients Aleksander Shul, Rabbi Shnior Zalman
Denciger, and University Realty USA, LLC, filed suit against the City of University Heights,
Ohio challenging city zoning regulations that effectively exclude houses of worship from the
City and treat religious institutions on less-than-equal terms than secular institutions. The
Complaint alleges violations of the First Amendment of the Constitution, the federal Religious
Land Use and Institutionalized Persons Act (“RLUIPA”) and Ohio law. The Aleksander Shul is
also represented by Ohio attorney John P. Slagter, Esq. of Tucker Ellis, LLP.

The Aleksander Shul has met at the home of Rabbi Denciger in University Heights since 2009,
when Rabbi Denciger began inviting his neighbors to join him to pray, study Torah, and
celebrate Jewish holidays according to the unique traditions of the Polish Chassidic sect known
as Aleksander. Prior to the Holocaust, Aleksander was one of the largest Chassidic sects in
Poland, with over 400 Aleksander synagogues. Today, the Aleksander Shul in University
Heights is one of the last remaining of its kind in the world.

The City filed criminal charges against the owner of the rabbi’s home for operating a house of
worship without a permit, resulting in almost $1,000,000 in fines. The city also filed a civil suit
seeking a permanent injunction to prohibit the Shul’s members from gathering at the property for
prayer. The Aleksander Shul filed a counterclaim, still pending in state court, alleging
discrimination by the City and the City’s Mayor, Michael Dylan Brennan.

The federal lawsuit against the City separately challenges the City’s code provisions that require
a highly discretionary special use permit and variances to operate any house of worship in the
City. Prayer groups such as the Aleksander Shul are considered by the City to be houses of
worship and are not permitted to gather without a special use permit, but secular uses, including
schools, assembly halls, libraries, community theaters, athletic fields, and stadiums are permitted
in various locations as of right without having to obtain a special use permit. The criteria to
obtain a special use permit for a house of worship are so restrictive that currently there is not a
single location in the entire City that satisfies them.

“University Heights’ ordinances are unconstitutional and contrary to federal and Ohio law,”
stated Roman P. Storzer, attorney for the Plaintiffs. “These ordinances deprive the Aleksander
Shul and other religious communities of their fundamental right to religious expression and
exercise.”

Storzer has been described by Religion Newswriters Association as “one of the country’s most
experienced litigators” in religious land use law, and has successfully represented Christian,
Jewish, Muslim, Hindu, Buddhist, Native American, Sikh and other religious organizations in
RLUIPA, Fair Housing Act,, and First Amendment cases throughout the nation. Eric W. Treene
is senior counsel with Storzer & Associates, and is the former Special Counsel for Religious
Discrimination for the Department of Justice.

Mr. Slagter, a partner at Tucker Ellis, LLP, is an Ohio attorney practicing in all facets of real
estate, including land use and zoning. He is actively involved in the real estate community on a
local and national level, and he is a frequent speaker, writer, and contributor on real estate and
land use issues.
In 2000, attorneys Storzer and Slagter successfully litigated the first RLUIPA case in the State of
Ohio.

RELATED: University Heights Jewish community upset by private investigator in front of University Heights shul

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