With expansion plans in flux, Kol Shofar throws down gauntlet

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In a sternly worded 16-page legal missive, Congregation Kol Shofar informed Tiburon’s Town Council that it expects its long-planned expansion project to meet approval — or the city will likely see Kol Shofar in court.

The council will hear from Kol Shofar and the neighborhood groups opposing the synagogue’s development Oct. 24, and is expected to make its ruling at a second hearing Nov. 15.

Prior to the first syllable of public commentary, however, the synagogue made a statement of its own Tuesday, Oct. 10 with the delivery of a legal letter penned by the Becket Fund for Religious Liberty, a national nonprofit legal institute describing itself as “dedicated to protecting the free expression of all religious traditions.”

The Becket Fund — which is currently suing the city of Alameda for $30 million on behalf of a Catholic school — claims that failure to greenlight Kol Shofar’s building plans would deny congregants the ability to properly worship God and be an imposition of their religious freedom.

The fund evoked the Religious Land Use and Institutionalized Persons Act, which passed through Congress with bipartisan support in 2000 and was signed into law by President Clinton. In addition to providing religious prisoners with the ability to demand acceptable food or don headgear and/or facial hair, the law is a powerful legal instrument in the hands of religious institutions engaged in land-use disputes.

“Denying Kol Shofar the ability to practice its religion as Kol Shofar sees fit could mean opening Tiburon to years of litigation and millions of dollars in damages and attorneys’ fees,” said Derek Gaubatz, director of litigation for the Becket Fund in a release circulated by the synagogue this week.

“And that could be the least of their worries. The Department of Justice may launch an investigation into the matter as they have in other such cases where RLUIPA is challenged, all because of a small band of disgruntled neighbors in Kol Shofar’s residential enclave.”

The Becket Fund’s letter claims a nixing of Kol Shofar’s plans would violate one of the very first stipulations put forth in RLUIPA:

“No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”

The fund also claims that Tiburon’s approval of Christian churches and schools in Kol Shofar’s vicinity to expand would demonstrate discrimination if Kol Shofar’s bid fails.

But when it comes to making threats of lawsuits, Tiburon’s Mayor Paul Smith recommends you take a number.

“Land-use matters in Tiburon are often contentious. There are often threats of litigation in these kinds of things whether they have to do with religious institutions or not,” he said.

What’s more, in the battle between Kol Shofar and its angry, activist neighbors, “both sides have made veiled threats that if it doesn’t go their way the town may be sued over it.”

Tiburon’s Planning Commission nixed Kol Shofar’s proposal in late May by a 4-1 vote. Heading into the meeting, Ron Brown, the synagogue’s immediate past president and a member of the building committee, told j. he didn’t expect the vote would go his way and was already anticipating a date with the Town Council.

Kol Shofar approached Becket around that time when, as Brown put it, “we could count the votes in the Planning Commission.”

Brown said Kol Shofar has compromised in the past — the plan voted down by the Planning Commission was “Alternative No. 7” — but he isn’t sure how much more conciliatory the synagogue is willing to be at this point.

In the past, the synagogue offered its neighbors an olive branch in the form of a schedule for its proposed 4,000-square- foot multipurpose building that would cut down on late-night events.

But if Kol Shofar opts to sue the city, and wins, Brown acknowledged “in theory, it’s true” that the time-use compromise could be junked and Kol Shofar could use the multipurpose room far more freely.

“You know, we didn’t want this fight. The neighbors and planning commission forced us into it,” he said.

“But, in the end, if we have to, we plan on asserting our rights.”

Joe Eskenazi

Joe Eskenazi is the managing editor at Mission Local. He is a former editor-at-large at San Francisco magazine, former columnist at SF Weekly and a former J. staff writer.