HOUSTON HOUSE OF WORSHIP RUNS AFOUL OF DEED RESTRICTIONS

Orthodox Jewish congregation sues city of Houston over enforcement of deed restriction

 

By Jasper Scherer

 

Houston Chronicle

April 1, 2021

 

                                                                   Heimish of Houston's synagogue

 

An Orthodox Jewish congregation has sued the city after officials threatened to enforce a deed restriction that would require the group to move its synagogue.

The congregation, Heimish of Houston, accuses the city in a federal lawsuit of violating religious protection laws by selectively applying a deed restriction that only allows homes to be used for habitation in the southwest Houston neighborhood where Heimish members meet.

A city attorney sent Heimish a letter last July promising “further legal action,” including a daily fine of $1,000, if congregation members continued to meet at the single-family home it is using for a synogogue, according to Heimish’s petition filed last week in the U.S. District Court for the Southern District of Texas.

According to its court filing, Heimish was formed by members who left another Orthodox Jewish synagogue over “doctrinal issues” more than two years ago. The congregation has met in the subdivision of Brays Oaks ever since, with several members moving to the neighborhood so they could live within walking distance of the synagogue. Driving on Shabbat, the Jewish Sabbath, is prohibited in Orthodox Judaism.

The property also is located within an eruv, a geographic location in which those who practice Orthodox Judaism can carry objects — such as house keys or religious texts — that they otherwise would be prohibited from carrying outside the home.

“If it were forced to leave the property, Heimish would likely be unable to find another suitable location meeting these essential criteria,” the group’s lawsuit reads.

The lawsuit also contends that other businesses and houses of worship, including a Ghanaian church and a Samskriti cultural center, are allowed to operate in the same area.

Property records show the church address is a single-family home owned by a church elder, while the church itself is in a different neighborhood. Records also show the address listed for the cultural center is being used as a residence.

Shortly before receiving the letter from the city, Heimish also received notice last July from an attorney for the area homeowners association, the West Bellfort Property Owners Association, of its apparent violation of the deed restriction. The HOA board decided not to take action after hearing from Heimish’s rabbi at a board meeting, according to the lawsuit.

Mayor Sylvester Turner did not immediately respond to a request for comment. The city has yet to file a response to Heimish’s petition, according to court records.

Heimish contends that the city, by threatening to enforce the deed restriction, is violating a provision of the federal Religious Land Use and Institutionalized Persons Act that says 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 enforcement furthers a “compelling governmental interest” and is the “least restrictive means” of furthering the interest.

Heimish argued in its court filing that the city would not be furthering a “compelling governing interest” by applying the deed restriction and forcing Heimish to move.

The congregation argues that the city also is violating a similar provision of the Texas Religious Freedom Restoration Act, along with an anti-discrimination clause of the Fair Housing Act.

Vaughn James, a professor at Texas Tech University School of Law who specializes in religious law, said the city’s defense is weakened by the presence of other businesses nearby and its failure to take action against the synagogue until well after Heimish began practicing there.

James also said city officials will have to demonstrate that the synagogue presents some sort of problem to the area, and that they gave Heimish an opportunity to address the issue or pursued other solutions before enforcing the deed restriction.

“They’d have to show that, OK, this is residential and now you have a synagogue in there and it’s causing some problem, where you have traffic congestion, you have noise — which I don’t think a synagogue would cause — or you have kids running back and forth, or whatever,” James said.

Among the groups representing Heimish in the lawsuit is First Liberty Institute, a religious liberty law firm based in Plano. One of the attorneys on the case, Jeff Mateer, served as Attorney General Ken Paxton’s top aide before he resigned last October and joined six other high-ranking employees in accusing Paxton of abuse of office, bribery and improper influence. Mateer now serves as First Liberty Institute’s chief legal officer.

EDITOR'S NOTE: Among other restrictions, Orthodox Jews are forbidden to use any mode of transportation on the Sabbath ... sundown Friday to sundown Saturday.