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Experts: Argue All You Want, Mosque Project on Firm Legal Ground

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Construction at ground zero (Dan Nguyen/ProPublica).

For all the anger, political strategizing and stabs in the heart that the plans to build a Muslim community center near ground zero may have brought about, land-use and zoning experts say opponents of the project have very little legal basis on which to rest their argument.

The discussion draws in First Amendment arguments about the constitutional right to freely practice religion. But on a more basic level, the community center must adhere to zoning laws, as none other than Rush Limbaugh has noted.

On zoning, here’s what New York University law professor Rick Hills had to say about the proposed site, 45 Park Place in lower Manhattan, two blocks from ground zero:

Focus for a moment on basic rule of law: 45 Park Place is located in a C6-4 zoning classification ("General Central Commercial") where houses of worship are allowed "as of right." Assuming that this particular proposed house of worship meets the setback, height, and bulk requirements of the Lower Manhattan special zoning district, the city's denial of a zoning compliance permit would be flagrantly ultra vires: Building inspectors, after all, cannot simply fabricate a new "honor-the-9/11-dead" zoning district on the spot.

The New York City Department of Planning confirmed with me that the proposal is “as of right,” meaning it “complies with all applicable zoning regulations and does not require discretionary action" to get approval. (What The New York Times described as a “local zoning dispute” was an effort by some to get the city’s Landmarks Preservation Commission to designate the building now at the site—previously an old Burlington Coat Factory—as a landmark, to prevent it from being torn down and replaced by the proposed Islamic center.)

Other land-use experts pointed out that if the city were to try to block the mosque based on zoning, its actions could be illegal based on a federal law that was passed unanimously by both houses of a Republican Congress in 2000.

“If the City of New York denies the zoning approval sought for this site, it will blatantly violate [the Religious Land Use and Institutionalized Persons Act] and expose the city to one whopping lawsuit that is extremely likely to succeed,” as Chicago attorney Dan Lauber told Chicago Sun-Times columnist Lynn Sweet. "A federal law adopted by a Republican Congress makes the denial the Republicans seek blatantly illegal."

Several high-profile opponents of the mosque plan—including the American Center for Law and Justice and the Anti-Defamation League—have in the past defended the Religious Land Use and Institutionalized Persons Act, arguing that it “protects religious land uses from discrimination."

Marci Hamilton, a professor at Benjamin N. Cardozo School of Law, is opposed to the federal land zoning law, saying it “has been a hammer that has been held by one religious developer after another.” In her view, the First Amendment is sufficient to “plainly prohibit” such discrimination against the mosque project. She admitted, however, that if the zoning law serves to protect the project, it “might, this once, actually be doing justice."

Why do you so-called journalists keep calling it a mosque?
IT’S A COMMUNITY CENTER MODELED AFTER THE YMCA. A mosque is to be contained therein,but you who support the right for it to be built only hurt the cause your trying to lend support to by following the misguided narrative that a mosque is the issue.

When then outcome of this debate is so very heavily dependent on how accurate we are with the truth of what this is really all about, how persistent we are in drilling that message through?

Surely not as persistent as the opposition is in erroneously referring to the building of a community center as a mosque!

Why do you so-called journalists keep calling it a mosque?

IT’S A COMMUNITY CENTER MODELED AFTER THE YMCA. A mosque is to be contained therein,but you who support the right for it to be built only hurt the cause your trying to lend support to by following the misguided narrative that a mosque is the issue.

When then outcome of this debate is so very heavily dependent on how accurate we are with the truth of what this is really all about, how persistent we are in drilling that message through?

Surely not as persistent as the opposition is in erroneously referring to the building of a community center as a mosque!

Michele Moore

Aug. 17, 2010, 9:20 p.m.

Once again Pres Obama did know what he was talking about… how good it is to hear that the law rules!!

Michele Moore

Aug. 17, 2010, 9:59 p.m.

Again Pres Obama did know what he was talking about!  Someone took the time to find out the truth… the law rules!!

This article totally misses the point.  No one is questioning the legality.  What people are questioning is the wisdom and motivation behind this proposed location.  They are also questioning the funding of this project and the beliefs of the Imam Rauf who is pushing this project.  He believes the U.S. is responsible for 911 and wants to implement Sharia law in the U.S.  What’s troubling is that the State Dept. is funding this fellow’s fund-raising trips overseas and this administration supports this?!?!  This is tolerance run amok.

Ok, How bout this. Not once in the Obama speech about the mosqe did he mention the people who lost there lives in that building or how much of a horriffic event it was on that day. Not once!! He only talked about how we need to uphold the 1st amendment because that was the right thing to do. Hey didnt show any sympany for those familys that lost family member or even friends that day. As a christian i woulnt build anything there other than a mimorial. And as christans, we need to stantd up and say “Hey!! that ist the right thing to do.” That is holy ground!!. No matter if its a jew, hindew, islamic or christan person that lost there life that day. What Obama needs do is build a mimorrial on that ground like for peal harbor. Or even build something like the vietnam wall for all the people who lost there lives that day. Because it was an attact aginst America!!That would be the right thing to do. Anything else is obsurd. But it honestly wouldnt surprise me if the just so happened to build a Wal-Mart there. Hey I just say it is

This article outlines the arguments perfectly.  I am emotionally tied to the WTC and recognize that I am not an impartial judge when it comes to how this land should be used.  However, I do see the larger good that our constitution represents.  Approval of the mosque must be based soley on the fact that it complies with all applicable federal and local regulations.  To do otherwise, threatens the foundation of our civil society.

What we need to do is build a mimorial there for all those people who lost there lives. Build one just as we did with Peal Harbor.

William Hattarq

Aug. 19, 2010, 9:45 a.m.

Mr. Walker,
Tolerance run amok? Really? So I take it that you strike just the right balance of religious and racial intolerance that our country needs?

Why even HAVE historic designation, planning, zoning or any of the other MANY different legal processes that MOST development projects HAVE to have before they can begin, when Marian and her experts can cut all the red tape for us and just say, “Build it!”

Patrick McCormick

Aug. 19, 2010, 1:03 p.m.

The Fight Over the Mosque…Morally Right and Legally Wrong vs Legally right and Morally wrong.

Pat McCormick

The various News Feeds carry hundreds of stories daily concerned with the construction of this Mosque near the site of the 9/11 attack. There are two basic sides to the argument. Dozens of political figures have added their voices to one side or another. Everyone has an opinion. It has the potential for a second tragedy at ground zero.

The Press and the Politicians fan the fires of hatred for their own selfish reasons. The winner will be nobody; nobody will win anything. In the end, our Constitutional ideals will be diminished and the memory of the dead will be tarnished. The Mosque will stand as a monument to the pain caused by the attack and the benefit to its members will be minimized.

Our emotions blind us. We have engaged in a fight that can have no clear winner. The best thing that could happen would be for the builders to move the project to another location. The worst thing that could happen would be for our government to force a change in location.

We are like a pack of dogs chasing our tails while the important issues of the day are pushed aside by the frenzy. People in America are hungry and homeless. Jobs are scarce. Our debts are high. The economy wobbles and the environment suffers. We have become a dysfunctional society in a land of plenty.

We need to make some serious changes before our foundation crumbles. Although our situation is precarious, it is not hopeless. We still have the potential to realize the American Dream. We just need to open our eyes and reach for it… together.

We all know the drill, “United We Stand, Divided We Fall. One Nation Under God, With Liberty and Justice For All”.

Edward Campbell

Aug. 19, 2010, 2:44 p.m.

It’s also going, according to my understanding to be a Sunni mosque which means that it’s no really going to be inclusive of all Islam let alone truly interfaith.  Some folks in the Muslim community are opposing the project on the grounds that a 13 story building is not modest enough.

Not only that, its going to cause a lot of security concerns for the Muslim community that operates the facility since they are going to obliged to keep the wrong kind of Islam out.  That means the Muslim community is going to be forced to spy on itself.

That’s a huge concern and is something which has been going on at mosques allover the country.  Not only has the muslim community been subjected to highy intrusive govermentspying, but people within the Muslim community began pointing the finger at one another andinforming against each other.

Furthermore, I’m not aware that there are any plans to help the local poor, like a soup kitchen or a homeless shelter in the manner a number of Christian organizations do.  Which means it, like most mosques in the United States be discriminatory aganst the poor in general.  Islam is not known for helping its own let alone the mix of poverty stricken folks your likely to find in Lower Manhattan.

The Muslim community should try to do something positive for the community, but sadly it’s really headed down the path of modelling itself after Zionism and becomeing very defensive, paranoid, and hostile.

But the real crimiinals who follow the teachings of Osama bin Laden and the like, will burow themselves very deeply into an organization like that as they have done elsewhere in the United States and one of the ways they do that is quite simply by positioning themselve on point in vetting everyone who goes in and out the door.

I don’t think the issue is really about discrimination against Muslims, but more to do with very real security concerns, concerns that are held by many Muslims themselves.

If they sought a modest Masjid and some kind of charity associated with it I might be more inclined to support the idea.  But the plan really looks like an agandizement of wealth, provocative, and unsafe.

Scott Schuster

Aug. 20, 2010, 12:13 a.m.

I agree with kalifani6 and have grown tired of the media referring to the proposed building as a mosque.  Actually, to my knowledge this Islamic Community Center won’t even house a mosque, but a multifaith chapel.  Why do some of you believe this needs to be the site of a 9/11 memorial?  Yes the building was damaged durring the attacks, but how many other buildings were as well?  If you’re going to apply “damaged as a result of the 9/11 attacks” as the standard for a place to build the memorial, apply it fairly and reasonably.  Anything short of that seems like thinly veiled xenophobia, instead of the patriotism and compassion for those lost and their families you make claim to.  I’m pro memorial, but at ground zero, not two blocks away where this is to be built.  However, you’re covered anyway because before they were even asked to do so, Imam Rauf and the cordoba initiative had decided to build a memorial on site.

Imam Rauf is a moderate Muslim and by no means desires to implement sharia law in the U.S.  He’s written extensively about the need for tolerance within Islam and has denounced extremism and terrorism at every turn.  When asked on 60 minutes if he considered the U.S. government and its policies an accessory to what occurred on 9/11, he said he does.  Something that our own Central Intelligence Agency (CIA) agrees with, applying the term “Blow Back” to the attacks.  Again, apply your standards fairly.  If his statement is cause for outrage, then be outraged by the CIA as well. 

‎“We’re being attacked simply and only for not knowing our place; not being sufficiently sorry for a crime we didn’t commit. It’s like we need to assume some collective guilt for 9/11 and act accordingly.” -an American Muslim on opposition to the proposal to build an Islamic Community Center two blocks from ground zero.

By all means, build the Mosque. How long will it take before some tea bagger flies an airplane into it?

From reading most of the comments related to this article it is obvious that there is a concerted effort of anti-Muslim extremists that will do anything they can do to prevent the expression of religious and cultural freedom.  This freedom is a cornerstone of American society. 

Luckily these people will fail.  Our great nation must welcome and respect all people of differing faiths.

So, it would be illegal for the City to block this?  Get real, Cities take properties by Eminent Domain all the time.  All they have to do is decide they have a ‘greater need’ for it.  But since they denied the application as a “historic landmark” site - when others on the block were approved, it is apparent this FIX was in from the beginning.  Why hasn’t the Greek Orthodox chuch destroyed on 911 rebuilt yet? Because the City is blocking them with requirements, restrictions and demands.  Follow the money trail from the City CounciL (re historic site denial).  THIS BULL WILL TRACK RIGHT BACK TO THE MUSLIM IN THE WHITE HOUSE!!  This Imam has a history with Obama (he wrote the forward for the book written by Obama’s “spiritual leader”), further evidenced by the fact that Imam is on our GOV’T PAYROLL - like all others being bribed/rewarded by Obummer.  IMPEACH!!!!!!

Mark P. Kessinger

Aug. 24, 2010, 4:59 a.m.

s brennan suggests NYC should take the property by eminent domain.  That would mean, of course, that the city would have to pay for it.  But the city has no particular need for it.  Why should NYC taxpayers foot the bill for the rest of the country’s paranoid hysteria?

what’s a mosque?

Marian-

Great article, but on the second to last paragraph you meant proponents not opponents right?  I am not a stickler for these types of things but in this case I think it changes the context. (could be wrong)

“Several high-profile opponents of the mosque plan—including the American Center for Law and Justice [13] and the Anti-Defamation League [14]—...”


I believe that it is “anti-american” to be against freedom of religion.

at the pentagon they have a place of worship where there disaster happened !! they are planning a memorial place where the plane went down in pa. !! but no memorial where the world trade center was !!???!!! and a mosque being built around the corner from the wtc ,the same people who did this to our country ??? some people didnt even have a body to bury !! but they cant have a place to remember there loved ones !! but people who support terrorism and the sharia law are allowed to do what ever they see fit but the actual people of the united states of america have to suffer !! this is not about laws its about having decency to the survivors first responders and the people who lost there live and the people who lost there loved ones !! WAKE UP PEOPLE !!! look up islamaberg ny see what u find and its not the only one in the u.s. either !! i guess terrorism falls in the catagory of religion !!

Edward Campbell

Aug. 29, 2010, 9:45 a.m.

It’s a $100 million dollar monument to someone’s personal wealth that no self-respecting Muslim will ever attend on account of that.

It will also be a huge security risk for both the Muslim community and for the greater NYC community and the nation wherein no serious Muslim will feel comfortable on account of that fact.

And furthermore, poor people, especially the homeless, will not even be allowed into per the usual oppression of that category in the United States but will be exasperated since wealth Muslims who agradize themselves in this manner HATE the poor as seen in Saudia Arabia where no election has ever been held and slavery is still legal.  And I do not over emphasize the fact that the poor are HATED by these kinds of people.

It will be a tourist trap frequented only by Muslim dupes and the type of people who build these sorts thing.

In short, more offensive to Muslims than the average New Yorker who opposes it.

Rasheed Knowles

Aug. 30, 2010, 12:11 a.m.

@Edward Campbell “It’s a $100 million dollar monument to someone’s personal wealth that no self-respecting Muslim will ever attend on account of that…..In short, more offensive to Muslims than the average New Yorker who opposes it.”

Hah! That’s all the more reason NOT to oppose it.
Isn’t every friggin’ tower a monument of some 1’s personal wealth? @ least it will provide some American working class folk some jobs.
I despise,Imperialist values coming from all angles, not just in regard to Saudi Arabia.But that’s no excuse to get yourself riled up on an obvious ploy to distract & detract from the EVERYDAY PROBLEMS of massive debt,poverty,& unemployment here. Of all those protesting this tower’s construction—how many are facing those very same issues & how many stand to profit from this massive state of delusion that it’s the ‘other guy’s’ fault.Not the majority, that’s for damm sure.

Rasheed Knowles

Aug. 30, 2010, 12:17 a.m.

@Michele Moore
Non-Sequiter:
Lol…funny how easy it is to end up posting the same reply twice on this site…Get it togetha ProPub. Posting a comment here is like shooting in the dark.

If is only a YMCA like community center then it’s not a general house of worship, and it doesn’t get a free pass through on zoning, and it doesn’t qualify for RLUIPA protections. But this is all doesn’t matter, this publicity stunt will net the developer a 300-400% profit when he DOES sell the property, allowing Imam Rauf (the most famous nobody in the world) about 20 million to build a half way decent Mosque, so he doesn’t have to pray in a cellar thats two blacks away.

Edward Campbell

Sep. 29, 2010, 6:04 p.m.

No, the very good reason for opposing it on Muslim grounds is the fact that it’s ostentation to the point of insult seeing that no homeless person will be allowed into it.  And have we forgotten or become brainwashed into believing that there are FOUR branched of Islam?  (not six?)

It’s a bin Laden trophy Mosque and seeing how he has managed to blow-up so many Mosques and turn all Muslims who oppose him into “human shields” this tripe passing for a Mosque ought to be more than simply opposed, its founder ought to be arrested.

Liberals truly ARE stupid, if every time one opposes terrorist in our midst we’re just called hate criminals.  But these people, I mean THOSE people really are what New Yorkers are accusing them of, don’t bow down to the bin Laden lie that this is about freedom of religion.  Bin Laden doesn’t believe in freedom of religion or any other kind of freedom by American standards.

http://edwardcampbellmedia.blogspot.com

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