The West Valley Muslim Association’s effort to secure extended hours for worship at its 16769 Farley Rd. mosque, particularly during Ramadan, has now reached the highest court in the land—in the form of a reference cited multiple times in a case that’s poised to set national precedent.
A Los Gatan article on the topic has been cited in multiple submissions to the US Supreme Court, which is preparing to mull the land use provisions of a federal civil rights law (“The Religious Land Use and Institutionalized Persons Act” aka “RLUIPA”) for the first time ever.
The piece published April 1, titled, “Jewish residents rally with Muslim community for Los Gatos mosque permit modification,” was included in the petitioner’s merits brief, on Aug. 31, as well as amicus briefs on April 10 and Sept. 8, in Daniel Grand v. City of University Heights, Ohio.
In that case, an Orthodox Jew named Daniel Grand sought to hold small religious gatherings in his home, but received a cease-and-desist order from the City, which told him he couldn’t hold such assemblies without a special use permit. Grand, whose faith requires a minyan (a quorum of at least ten adult males) for prayer, has been unable to secure a final decision in the matter and contends he faced a hostile process.
“I was just doing searches on the internet, trying to find discussions of this sort of thing,” said Sean Dutton, of Birmingham, Mich.-based Kienbaum Hardy Viviano Pelton & Forrest PLC, who filed the “friend of the court” arguments, commenting on how the newspaper’s reporting surfaced. “Governments are pulling this nonsense all over the place.”
Dutton filed his first brief on behalf of Islam & Religious Freedom Action Team of the Religious Freedom Institute, as well as the Jewish Coalition for Religious Liberty.
For the second, he represented the Religious Freedom Institute, the American Hindu Coalition, the Muslim Political Affairs Council, Masjid Muhammad, New York Yearly Meeting of the Religious Society of Friends, International Society for Krishna Consciousness, Inc., the Coalition of Virtue, and the American Muslim League.
Dutton noted Grand originally filed his petition “pro se”—without a lawyer.
“The US Supreme Court requested a response from the City,” he said. “When they did that, this case got hot.”
Grand is now represented by big-time law firm Orrick, Herrington & Sutcliffe, including E. Joshua Rosenkranz, who has argued more than 20 cases before the Supreme Court.
Rosenkranz also cited the same Los Gatan article in his brief, characterizing the situation as, “a mosque, already approved for prayer gatherings, that wanted to add pre-dawn and late-evening prayers and extend hours during Ramadan”.
It took Los Gatos Planning Commission several hearings to pass a conditional use permit with a series of restrictions that neither the mosque nor the Farley Road Neighborhood Coalition were happy with. The delay was in part due to Town staff determining that proposed conditions would likely violate RLUIPA. The neighbors urged the Town to conduct additional noise surveys during Ramadan.
Both sides appealed the Planning Commission’s CUP approval (with revised conditions) to Council, which has so far continued the item twice. Council has also met in closed session about possible litigation related to the mosque decision. Staff recently suggested the matter could be sent back down for another hearing at Planning Commission.
Starting in 2020, the mosque was allowed to operate until 11pm for 30 days during Ramadan, with no set morning hours restrictions. The new CUP expanded the hours of operations to 1.5 hours before sunrise and to 10:30pm, seven days a week; and during the 30-day month of Ramadan, 1.5 hours before sunrise to 11:30pm when the sunset is prior to 7:30pm, or until 12am when the sunset is after 7:30pm.
Neighbors say WVMA is asking for too much.
Al Daryan, 73, has lived on Farley Road for 26.5 years.
“They cause a lot of commotion by asking for extended hours and then asking for using the facility for a lot of events,” he said. “It’s unfair to residents.”
Daryan, who identifies as a non-practicing Muslim, grew up across a narrow alley from a mosque in Tehran, the capital of Iran. “They would finish their services by 9:30(pm),” he said. “People would have to go to work the next day.”
He says a few people have moved into the neighborhood recently to be closer to the Los Gatos Islamic Center.
He’s mainly concerned about the safety, noise and traffic impacts, though he says he and his wife live a few houses down, so their sleep hasn’t been affected by light or other disturbances.
“Now your friends have to go look for parking,” he said, describing the situation during the busiest hours.
He says he’d like to see the mosque be more accommodating of the residents.
“If you want to live in harmony, you do some stuff for the neighbors,” he said. “It’s not just talk. You have to show in actions.”
Daryan says he’s glad the Supreme Court is taking up the religious freedom law.
“I think there are some lose ends in RLUIPA,” he said. “Now a lot of people are taking advantage of it. It needs to be revisited in a federal level.”
However, Dutton says the decision in this case isn’t likely to address Daryan’s concerns.
“The Grand case is actually very narrow,” he said, but added, “I think it would have a direct effect on the WVMA case.”
That’s because the Supreme Court is looking at whether or not litigants have to wait for a final land use decision before they’re able to sue, or if governments can avoid legal action by continuing to delay, he says.
“I do think that the court is likely to rule in Mr. Grand’s favor,” Dutton said. “But I’ve been burned before, and I’m not a gambling man.”
