Anash Inc v. Borough of Kingston

UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT

No. 25-1097

ANASH, INC. d/b/a Wyoming Valley Yeshiva;
RABBI SHIMON HELLINGER, individually and in
his capacity as an authorized representative of
Wyoming Valley Yeshiva and relevant
community members,
Appellants

v.

BOROUGH OF KINGSTON a/k/a Municipality of
Kingston; DAVID R. YEFKO, individually and in
his capacity as Zoning Officer for the
Municipality of Kingston; ROBERT SUCHOSKI,
individually and in his capacity as Code
Enforcement Officer for the Municipality of
Kingston
_____________________________

On Appeal from the U.S. District Court, M.D. Pa.
Judge Karoline Mehalchick, No. 3:24-cv-01955

Before: RESTREPO, PHIPPS, and MASCOTT, Circuit Judges
Argued: Jan. 22, 2026; Filed: July 30, 2026
_____________________________

OPINION OF THE COURT

PHIPPS, Circuit Judge.
After receiving complaints, a municipality investigated two
buildings located in a commercially zoned district for
violations of the municipality’s building code and its zoning
ordinance. Both buildings were owned by a Jewish rabbi. One

2

was used as a residence for boys and young men who were
studying and practicing their faith under the rabbi’s tutelage.
The other contained his office as well as rooms for prayer,
religious study, and religious instruction. The municipality
issued two notices of zoning-ordinance violations for each
property on the grounds that those uses were not permitted in
commercial districts. Then, on the day before Rosh Hashanah,
it obtained administrative search warrants, inspected the
properties, and immediately condemned them. The
municipality then refused to allow occupancy until the
buildings were compliant with both the building code and the
zoning ordinance. And although it recognized that there was
no quick or easy way to bring at least one of the buildings into
compliance with the zoning ordinance, the municipality
threatened fines of $500 for each day of non-compliance.
The rabbi and his congregation sued the municipality along
with its zoning and code enforcement officers on several
grounds in the District Court. Among their grievances were
multiple claims under RLUIPA, the Religious Land Use and
Institutionalized Persons Act of 2000, Pub. L. No. 106–274,
114 Stat. 803 (codified at 42 U.S.C. §§ 2000cc–2000cc-5).
Relying primarily on the RLUIPA claims, the rabbi and his
congregation moved for a preliminary injunction to allow them
to access and use the properties and to be free from
enforcement actions during the pendency of their suit. The
District Court denied that motion.
The rabbi and his congregation then initiated this
interlocutory appeal to challenge that order. For the reasons
below, we will REVERSE its order denying preliminary
injunctive relief and REMAND for further proceedings
consistent with this Opinion.

3

FACTUAL BACKGROUND
A. Kingston’s Zoning Laws Before 2023
The Municipality of Kingston is located in Luzerne County,
Pennsylvania, on the northwestern bank of the Susquehanna
River across from Wilkes-Barre.
1
It has a land area of
2.15 square miles or 1376 acres. One of the principal arterial
roadways in Kingston is Pierce Street, which is approximately
one mile long and runs from its intersection with U.S. Route 11
(Wyoming Avenue) to its transition into the Veterans
Memorial Bridge, which crosses the Susquehanna.
Under the zoning ordinance adopted by Kingston’s Town
Council on July 11, 1977, some of the parcels abutting Pierce
Street were zoned as C-2 Districts. Those districts, also
referred to as ‘Community Commercial’ Districts, permitted
major retail establishments. Kingston, Pa., Mun. Code § 181-9
(1977). In addition, under the 1977 Zoning Ordinance, all uses
permitted in C-1 Districts, referred to as ‘Neighborhood
Commercial’ Districts, were permitted in C-2 Districts. Id.
Thus, because business and professional offices were
authorized in C-1 Districts, they were allowed in C-2 Districts.
Also permitted in C-1 Districts, and by extension in C-2
Districts, were ‘public uses,’ such as public schools, id.
§ 181-8, as well as ‘semi-public uses,’ defined as “[c]hurches,
Sunday schools, parochial schools, colleges, hospitals and
other institutions of an educational, religious, charitable or

1
Before it enacted a home rule charter that went into effect in
January 1976, see In re Petition to Recall Reese, 665 A.2d
1162, 1163 (Pa. 1995), Kingston was a borough, but with the
home rule charter, it became a municipality. See generally
1 Pa. Cons. Stat. § 1991 (defining ‘municipality’ as
encompassing but not being coextensive with a ‘borough’);
8 Pa. Cons. Stat. § 101.1 (same). Despite that formal
designation, Kingston still refers to itself as a borough. See,
e.g., The Borough of Kingston Home Page,
https://kingstonpa.org/ (last visited May 8, 2026).

4

philanthropic nature,” id. C-2 Districts were similarly
inclusive of uses permitted in residential districts: any use
authorized in a residential district was also allowed in a C-2
District. See id. § 181-12(B)–(C). And because single-family
dwellings were permitted in residential districts, they were
allowed in C-2 Districts. Id. § 181-8 (defining a ‘single-family
dwelling’ as “[a] detached building designated for or occupied
exclusively by one family and containing not more than one
dwelling unit”).
B. Rabbi Hellinger Founds the Wyoming Valley
Yeshiva in Kingston
An Orthodox Jewish rabbi, Shimon Hellinger, acquired
property in Kingston for his congregation, the Wyoming
Valley Yeshiva, which was formally incorporated as Anash,
Inc. In 2019, he purchased for $45,000 a property at 239 Pierce
Street in a C-2 District that included a house and 0.07 acres of
land. He received a certificate of occupancy from Kingston for
the property as a single-family dwelling. That certificate
indicated that single-family use was a conforming use within a
C-2 District and cautioned that “[a]ny changes in the use and
occupancy as designated above without approval of the Zoning
Administrator will automatically render this certificate null and
void.” Certificate of Occupancy (JA218). Rabbi Hellinger
used the house for religious group living for about ten
Orthodox Jewish young men who were his students and
members of his congregation and who used the property for
religious purposes such as group prayer. The residents did not
have to pay monthly rent, but some offered donations to offset
costs.
In 2021, Rabbi Hellinger purchased another property about
a tenth of a mile away, also in a C-2 District, for $134,000.
That 0.16-acre parcel, located at 44 Pierce Street, included a
two-story building with a small parking area in back. The
certificate of occupancy described its use as an “office space”
and also included the same admonition about changes in use
rendering the certificate null and void. Zoning Occupancy

5

Certificate (JA217). After acquiring this property, Rabbi
Hellinger used it for his rabbinical office, and also as a yeshiva
– a space devoted to prayer, religious study, and religious
instruction.
C. The Repeal and Replacement of the 1977
Zoning Ordinance
In 2023, Kingston hired consultants to design a new
comprehensive zoning ordinance. As explained by the chief
consultant, the 1977 Zoning Ordinance was “substandard and
not up to what the best practices are,” Kingston Pub. Hr’g
Tr. 20:23–24 (Mar. 6, 2023), so he proposed a “rewrite of [the]
entire [o]rdinance,” id. at 18:11–12.
Once prepared, the draft of the new ordinance, referred to
herein as the ‘2023 Zoning Ordinance,’ was subject to a public
comment period. During that review, the 2023 Zoning
Ordinance was discussed at a Town Council meeting on
March 6, 2023.
Kingston’s Zoning Officer spoke at that public meeting to
address “the key zoning map changes.” Id. at 14:3–4. He
identified some of the revisions that were designed to “ensure
that the entire property of each of the[] lots” abutting Pierce
Street were zoned commercial. Id. at 14:17–18.
The consultant who drafted the 2023 Zoning Ordinance
also spoke at the meeting. He explained that the 2023 Zoning
Ordinance created three classes of permitted use: “by right,
special exception or conditional use.” Id. at 21:20. A use
permitted by right in a zoning district would not require any
further approval. A use permitted by special exception would
require approval from the Kingston Zoning Hearing Board.
And because conditional use was reserved for “such
importance, a one-of-a-kind type of use,” it would be permitted
in a zoning district only upon approval by the Kingston Town
Council. Id. at 22:15–16.

6

That framework differed from the prior zoning ordinance’s
use of an inclusive approach in which every use permitted in
C-1 Districts or in residential districts would be permitted by
right in C-2 Districts. Consistent with its new method, the
2023 Zoning Ordinance included a table that indicated, for
each zone, whether a use would be permitted by right, by
special exception, as a conditional use, or not permitted at all.
Also, compared to its predecessor, the 2023 Zoning
Ordinance included a greater number of specifically defined
land uses. For instance, it provided that, in general, the term
‘rooming and/or boarding house’ meant “[a] residential
structure or portion thereof which contains rooms which are
rented or leased, with the occupants of said units being non-
transient, and utilizing said location as a legal place of
residence.” Municipality of Kingston, Pa., Zoning Ordinance
§ 203 (2023). That general definition was subject to specific
inclusions and exclusions, and one of the specific exclusions
stated that rooming houses did not include dormitories. See id.
Other than that reference to dormitories, however, the
proposed zoning ordinance did not mention, much less define,
the term ‘dormitory.’
2
The 2023 Zoning Ordinance also
defined the term ‘school’ as dependent on state licensure: “[a]
facility that provides a curriculum of elementary and secondary
academic instruction, including kindergartens, elementary
schools, junior high schools, and high schools that are licensed
by the State and including schools which provide trade or
vocational training.” Id. (emphasis added).
On May 1, 2023, Kingston approved the 2023 Zoning
Ordinance. Its combination of a new zoning scheme and
revised definitions had a transformative impact on permitted
uses in C-2 Districts. Single-family dwellings (redefined as

2
At the time, other zoning codes besides Kingston’s had made
references to the term ‘dormitory,’ and it had also been defined
in other building codes. E.g., 2021 International Zoning Code
§ 202; 2021 International Building Code § 202.

7

‘one-family dwelling units’) and rooming houses were non-
permitted uses in C-2 Districts. Similarly, although both public
schools and parochial schools were previously permitted in
C-2 Districts (as public uses and semi-public uses,
respectively), ‘schools,’ as defined by the 2023 Zoning
Ordinance, were not permitted in C-2 Districts as of right but
rather were allowed only as conditional uses.
The degree of disruption from those and other changes was
reduced because the 2023 Zoning Ordinance included
grandfathering clauses. Under those provisions, uses of
property, referred to as ‘nonconforming uses’ that were
“lawfully in existence prior to the enactment of such
ordinance,” could be continued through a Certificate of
Nonconformance issued by the Zoning Officer. Id. The
2023 Zoning Ordinance generally limited the nonconforming-
use approval to a prior nonconforming use – such a prior use
could not justify a new, different nonconforming use on the
same property. Id. §§ 904, 907. But if a property subject to a
nonconforming-use exception was condemned, it had to be
restored “in conformity with uses permitted within the Zoning
District in which such structure is located.” Id. § 910.4.
D. Enforcement of the 2023 Zoning Ordinance
with Respect to the Pierce Street Properties
A few months after the 2023 Zoning Ordinance took effect,
a neighbor repeatedly complained to a member of the Town
Council that the 239 Pierce Street property was being used as
a dormitory and had “unsupervised young men living there.”
Prelim. Inj. Hr’g Tr. 108:15 (JA152). Kingston’s Municipal
Solicitor thought “it was important to take care of this problem
for Kingston.” Id. at 108:17–18 (JA152).
Kingston then began to address those issues. In September,
Kingston’s Code Enforcement Officer wrote to Rabbi
Hellinger with a request to discuss “several complaints and
concerns” that the 239 Pierce Street property was in violation
of Kingston’s Municipal Code and its Fire Code, collectively

8

referred to herein as the ‘Building Code.’ Letter from Robert
Suchoski, Code Enforcement Officer, Municipality of
Kingston, to Rabbi Hellinger (Sep. 13, 2023) (SA41); cf.
Kingston, Pa., Mun. Code §§ 60, 94, 116, 135. And in an
October 4 letter to Rabbi Hellinger’s attorney, the Municipal
Solicitor opined that the use of the 239 Pierce Street property
“as a dormitory is entirely illegal.” Letter from Harry P.
Mattern, Municipal Solicitor, Municipality of Kingston, to
David Schwager, Attorney for Rabbi Hellinger (Oct. 4, 2023)
(JA208). He further communicated that he did not “see any
way under the [2023 Zoning Ordinance] to quickly or easily
expand the use beyond that which has previously existed as a
single family residence.” Id. (JA209).
Rabbi Hellinger met with the Code Enforcement Officer
and the Municipal Solicitor later in October. During that
meeting, he described the religious practices of his
congregation, and he explained how he was using the property.
He perceived, however, that “there was no interest on their part
to try to work something out. They were just trying to get us
to stop and shut down.” Prelim. Inj. Hr’g Tr. 38:15–17 (JA82).
In correspondence dated March 19, 2024, the Municipal
Solicitor asked for a second meeting. The stated purpose of
that meeting was Building Code compliance, including a
request for inspection. Rabbi Hellinger and his attorney met
with the Municipal Solicitor, but Rabbi Hellinger was not
willing to permit Kingston to inspect the 239 Pierce Street
property.
On April 4, 2023, Kingston’s Zoning Officer issued a
Notice of Violation to Rabbi Hellinger for 239 Pierce Street. It
stated that the property was being used impermissibly as a
“rooming/boarding house,” which was not a permitted use in a
C-2 District under the 2023 Zoning Ordinance, and it ordered
him “to cease and desist the illegal use.” Notice of Violation –
239 Pierce St. (JA204). The notice also stated that “[t]here will
not be any follow-up requests regarding this situation,” and

9

that failure to comply within five business days would result in
the issuance of a citation. Id. (JA205).
That notice also outlined a process for Rabbi Hellinger to
bring his use of 239 Pierce Street into compliance with the
2023 Zoning Ordinance through the grandfathering provisions.
According to the Zoning Officer, Rabbi Hellinger would have
to apply to change 239 Pierce Street from “one nonconforming
use to another nonconforming use.” Id. (JA204). The Zoning
Officer forecasted that he would deny that application upon
receiving it, but then Rabbi Hellinger could apply for a Special
Exception from the Kingston Zoning Hearing Board. Id.
(JA204).
The next week, Kingston turned its attention to 44 Pierce
Street. On April 11, 2023, it issued a Notice of Violation for
that property, which declared that the property was being used
impermissibly as a ‘school.’ Because that was not an approved
conditional use in a C-2 District, it ordered Rabbi Hellinger to
cease and desist that use. As with the notice for 239 Pierce
Street, this notice outlined a process under the grandfathering
provisions for Rabbi Hellinger to bring his use of 44 Pierce
Street into zoning compliance.
After receiving those notices, Rabbi Hellinger did not
follow the processes proposed by the Zoning Officer, and he
continued to use the properties as he had been.
On August 22, 2024, Kingston issued Second Notices of
Violation for each property. Those notices declared that the
properties were being used illegally and, after recounting that
Rabbi Hellinger had refused to allow inspection of the
properties for Building Code violations, ordered that he
immediately cease and desist occupancy of them. The notice
for 239 Pierce Street changed the basis for the zoning
infraction; instead of claiming that the property was being
improperly used as a rooming/boarding house, it announced
that the property was being illegally used as a ‘dormitory’ – a

10

term not defined in the 2023 Zoning Ordinance. The notice for
44 Pierce Street relied on the same ground as before, the
assertion that the property was being used as a school.
Both notices emphasized that “[t]he Municipality of
Kingston reserves the right to pursue any and all legal options
afforded to them until you comply with this order.” 2d Notice
of Violation – 239 Pierce St. (JA206); 2d Notice of Violation
– 44 Pierce St. (SA82). Both notices further indicated that
“[c]itations have already been filed with the district
Magistrate’s Office.” 2d Notice of Violation – 239 Pierce St.
(JA206); 2d Notice of Violation – 44 Pierce St. (SA82). The
citation amount was $500, the maximum permitted, and each
notice indicated that Kingston would be issuing new citations
“on a daily basis” as long as the properties remained out of
compliance with the 2023 Zoning Ordinance. 2d Notice of
Violation – 239 Pierce St. (JA206); 2d Notice of Violation –
44 Pierce St. (SA82).
Rabbi Hellinger contacted the Magistrate’s Office and
learned that “there was no citation filed,” and thus “no
opportunity . . . to appeal.” Prelim. Inj. Hr’g Tr. 25:4, 8–9
(JA69). He continued to use both properties as he had been.
E. The Issuance of Administrative Search
Warrants and the Condemnation of the
Pierce Street Properties
On October 1, 2024, the day before Rosh Hashanah, which
commences the High Holy Days, Kingston applied for four
administrative warrants to search the Pierce Street properties –
two for Building Code violations and two for non-compliance
with the 2023 Zoning Ordinance.
Kingston’s Code Enforcement Officer submitted
applications for warrants to search both properties based on
identified Building Code violations. Also, for 44 Pierce Street,
the identified violations included the allegation that a mikvah
– a pool of water used for immersion as part of a purification

11

ritual – had been “installed in the basement without any
building permit being acquired.” Code Appl. for
Administrative Search Warrant of 44 Pierce St. (D.C. ECF
No. 1-13).
Kingston’s Zoning Officer submitted the zoning-based
warrant applications for both properties. For 239 Pierce Street,
he averred that the search was justified because the property
was being maintained as “a dormitory or boarding house in a
single-family residence in a C-2 [Z]one” and because Rabbi
Hellinger did not “allow inspection for safety or Code
[c]ompliance.”
3
Zoning Appl. for Administrative Search
Warrant of 239 Pierce St. (D.C. ECF No. 1-10). His
application for a warrant to search 44 Pierce Street claimed a
zoning violation of “[m]aintaining a school in a C-2 Zone,” and
cited Rabbi Hellinger’s “[f]ailure to allow inspection for safety
or Code [c]ompliance.” Zoning Appl. for Administrative
Search Warrant of 44 Pierce St. (D.C. ECF No. 1-14).
4

3
Kingston’s Zoning Officer also averred under penalty of
perjury, see 18 Pa. Cons. Stat. § 4904, that Kingston “has
received numerous complaints of many young children
residing in the property. No adult supervision is observed.”
Zoning Appl. for Administrative Search Warrant of 239 Pierce
St. (D.C. ECF No. 1-10) (emphasis added). Later, however, in
the course of this litigation, Kingston produced some of the
information it acquired as part of its investigation into the uses
of the 239 Pierce Street property, and those materials included
a surveillance photo with a date stamp of April 5, 2024, of a
man wearing a hat walking with two children. And, as
explained below, when the property was searched, there were
two adults on site at the time.
4
All four warrant applications also indicated that Rabbi
Hellinger had failed to register as a landlord as separately
required by the Municipal Code. See Kingston, Pa., Mun.
Code § 116-4(A) (2014). That Code provision applies to
properties occupied by a ‘tenant,’ defined as “[a]n individual

12

A magisterial district judge authorized all four search
warrants at 9:00 a.m. that day. The Code Enforcement Officer
and the Zoning Officer, accompanied by local police and other
Kingston officials, then began to execute the warrants. They
first went to 239 Pierce Steet, and upon their arrival, they
called Rabbi Hellinger to inform him that they would break
down the door unless he let them inside. Rabbi Hellinger
provided the access code to that building, and they began the
search. They encountered two adults, whom the police did not
allow to leave the property without providing identification.
They also found unattended hot plates, trash bags in
inappropriate locations, and an exposed but capped electrical
wire extending from a hole in the ceiling in one room.
Rabbi Hellinger also granted access to 44 Pierce Street.
The search of that property found uncovered and exposed holes
in the floor of the basement from the construction of the
mikvah.
After completing the searches, Kingston condemned the
Pierce Street properties through no-occupancy orders posted
on the front doors of both properties. In large type, both orders
declared the properties “unsafe for human occupancy or use,”
and both had illegible signatures above the Code Enforcement
Officer’s title. No-Occupancy Orders (D.C. ECF Nos. 1-11,
1-15). The notice for 239 Pierce Street did not identify the
ordinance or the section of the ordinance that served as the
basis for the condemnation, but it did include the handwritten

who resides in a residential rental unit, with whom a legal
relationship with the owner/landlord is established by a lease
or by the laws of the Commonwealth of Pennsylvania.” Id.
§ 116-3. The residents of 239 Pierce Street did not, however,
have leases and did not pay rent, and there has been no alleged
other source for such an owner/landlord relationship under the
other laws of the Commonwealth of Pennsylvania. Nor was
there any mention of tenants at the 44 Pierce Street property,
which was allegedly being used as a school.

13

description, “No Sprinklers, No Fire Extinguishers, No Egress
Signage, No Emergency Lights.” No-Occupancy Order –
239 Pierce St. (D.C. ECF No. 1-11). The notice for 44 Pierce
Street likewise did not provide the ordinance and section that
permitted the condemnation, but it did include the handwritten
annotations, “No Fire Extinguishers, No Emergency Lighting,
No Egress Signage, Open Electrical Issues, Not Allowed
[Illegible] for Usage.” No Occupancy Order – 44 Pierce St.
(D.C. ECF No. 1-15). Both orders declared it unlawful to enter
or occupy the buildings after 6:00 p.m. on October 1, 2024.
Rabbi Hellinger, his students, and his congregants
complied with those orders. The condemnation of the Pierce
Street properties disrupted the congregation’s religious
observance of Rosh Hashanah and the High Holy Days.
Rabbi Hellinger’s attorney contacted the Municipal
Solicitor for Kingston to request the reopening of the Pierce
Street properties. In a letter dated November 4, 2024, the
Solicitor responded that, after discussions with the Zoning
Officer, for the Pierce Street properties to be reopened, “it will
be necessary for Rabbi Hellinger to comply with the
[2023] Zoning Ordinance.” Letter from Harry P. Mattern,
Municipal Solicitor, Municipality of Kingston, to Alexander
M. Brunelle, Attorney for Rabbi Hellinger (Nov. 4, 2024)
(JA207).
The condemnation orders have remained in effect since
their issuance. Rabbi Hellinger has not been able to “hold
regular services,” Prelim. Inj. Hr’g Tr. 36:24 (JA80), or “lead
the congregation in a group manner,” id. at 39:5 (JA83). Some
congregants have left town. See id. at 39:5–6 (JA83). Others
“go [to religious services] elsewhere or they don’t go at all.”
Id. at 40:15–16 (JA84). And while there are still those who are
“not quick to give up [their] religion because [they’re] not able
to practice, . . . most of the congregation is not engaging.” Id.
at 39:20–22 (JA83).

14

PROCEDURAL HISTORY
On November 13, 2024, Rabbi Hellinger and Anash
initiated this suit in the District Court against Kingston, its
Zoning Officer, and its Code Enforcement Officer, collectively
referred to herein as ‘the Kingston Defendants.’
Thirteen of the claims in their 21-count complaint were
based on federal law. Four of those counts were brought under
RLUIPA, specifically for violations of its substantial-burden
provision, its equal-terms provision, its nondiscrimination
provision, and its exclusions-and-limits provision. See
42 U.S.C. § 2000cc(a)(1), (b)(1)–(3). The other federal claims
included allegations of a procedural-due-process violation,
5

and the complaint also contained eight counts based on
Pennsylvania law.
6

On December 2, 2024, Rabbi Hellinger and Anash moved
for a temporary restraining order and a preliminary injunction
based on their RLUIPA and procedural-due-process claims.
They sought to enjoin the Kingston Defendants in three ways:
(i) from enforcing the condemnation orders for the Pierce
Street properties; (ii) from taking adverse zoning or other
enforcement actions against the Pierce Street properties

5
The remaining federal claims consisted of one other statutory
claim under the Fair Housing Act, see 42 U.S.C. § 3604(a), and
several claims based on alleged violations of constitutional
rights (free exercise, free speech, free association, equal
protection, substantive due process, unreasonable search and
seizure, and civil conspiracy to interfere with those rights).
6
Those counts alleged violations of the Pennsylvania
Constitution, see Pa. Const. art. 1, §§ 3, 7, 20, 26, the
Pennsylvania Human Relations Act, see 43 Pa. Stat. § 953, and
the Pennsylvania Religious Freedom Protection Act, see 42 Pa.
Cons. Stat. § 7103, as well as for the torts of abuse of process,
tortious interference, defamation, public disclosure of private
facts, and negligent training and supervision.

15

without constitutionally adequate process; and (iii) from
discriminating against them based on their religious practices.
In exercising federal-question jurisdiction over those
claims, see 28 U.S.C. § 1331, the District Court denied the
requested temporary restraining order and scheduled an
evidentiary hearing on the preliminary injunction. At that
hearing, Rabbi Hellinger and another rabbi testified in favor of
the requested injunctive relief, and the Municipal Solicitor for
Kingston testified on behalf of the Kingston Defendants.
On December 19, 2024, the District Court denied the
motion for preliminary relief. The accompanying
memorandum opinion explained that Rabbi Hellinger and
Anash had failed to establish either a likelihood of success on
their claims or an irreparable harm. Anash, Inc. v. Borough of
Kingston, 2024 WL 5294369, at *3 (M.D. Pa. Dec. 19, 2024).
In reaching those conclusions, the District Court emphasized
that Rabbi Hellinger and Anash “have alternative locations,
albeit imperfect ones, at which they can host religious and
educational activities.” Id. at *5. In addition, the District Court
concluded that the balance of the hardships favored the
Kingston Defendants based on their interests in avoiding a
dilution in the effectiveness of the 2023 Zoning Ordinance
through “a loophole [that] would surely result in great harm to
local governments attempting to effectuate and promote safety
and health interests.” Id. at *11. The District Court also
determined that the public interest in safety favored the
Kingston Defendants based on four unsafe conditions
associated with the Pierce Street properties: (i) “exposed
electrical wires”; (ii) “trash and hot plates that are left out in
unfit locations, accessible to children without any clear adult
supervision”; (iii) the “construction of a Mikvah . . . [in a]
basement that opens into a large hole in the ground, without
stairs, [which] could certainly be considered a danger to the
children and younger adults living there”; and
(iv) “unsupervised children and potential fire and safety
hazards.” Id. at *10–11.

16

Through a notice of appeal, Rabbi Hellinger and Anash
invoked this Court’s interlocutory appellate jurisdiction over
denials of motions for preliminary injunctive relief. See
28 U.S.C. § 1292(a)(1). In challenging the District Court’s
order, they rely on three of their RLUIPA claims – those under
the substantial-burden, the equal-terms, and the exclusions-
and-limits provisions – as well as their procedural-due-process
claim.
In February 2026, after oral argument in this case, the
United States Department of Justice commenced a civil
enforcement action against Kingston based on allegations that
the 2023 Zoning Ordinance violates RLUIPA’s equal-terms
and exclusions-and-limits provisions, see 42 U.S.C.
§ 2000cc(b)(1), (3); see also id. § 2000cc-2(f) (“The United
States may bring an action for injunctive or declaratory relief
to enforce compliance with [RLUIPA].”). Kingston was on
notice of the Department of Justice’s investigation since June
2025, and it cooperated with the investigation. The same day
as the suit was filed, the Department of Justice and Kingston
submitted a consent motion to enter a presumptive four-year
consent decree, which the District Court approved two days
later. That decree enjoined Kingston in several ways and
provided Kingston 120 days to amend the 2023 Zoning
Ordinance in at least seven respects. Kingston’s Town Council
voted to adopt amendments to the 2023 Zoning Ordinance at a
meeting on July 7, 2026. The amendments were published,
and they have an expected effective date 30 days after
publication, which projects to be on or about August 15, 2026.
Even so, the Court has not received notice from either party
that the Kingston Defendants have restored access to the Pierce
Street properties.
DISCUSSION
A preliminary injunction preserves for the duration of a
case the status quo ante – the way things used to be before the

17

complained-of acts.
7
Such preliminary relief is generally
allowed only as a prohibitory injunction,
8
a form of in
personam equitable relief preventing parties to the litigation
from taking certain actions.
9

7
See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)
(“The purpose of a preliminary injunction is merely to preserve
the relative positions of the parties until a trial on the merits
can be held.”); see also Fitzgerald v. Mountain Laurel Racing,
Inc., 607 F.2d 589, 604 n.24 (3d Cir. 1979) (explaining that an
order granting a preliminary injunction was drawn narrowly
such that it did not “extend[] beyond a period of time necessary
to preserve the status quo ante” (emphasis added)).
8
In the rarest and most extreme cases, and only upon
satisfaction of a “particularly heavy burden” and an
“indisputably clear” right to relief, this Court has permitted
preliminary relief in the form of a mandatory injunction. Hope
v. Warden York Cnty. Prison, 972 F.3d 310, 320 (3d Cir. 2020)
(first quoting Acierno v. New Castle County, 40 F.3d 645, 653
(3d Cir. 1994); then quoting Trinity Indus., Inc. v. Chi. Bridge
& Iron Co., 735 F.3d 131, 139 (3d Cir. 2013)). See, e.g., Kim
v. Hanlon, 99 F.4th 140, 147, 152 (3d Cir. 2024) (affirming a
mandatory preliminary injunction that required county clerks
to group candidates “by the offices for which they are running”
in a primary election); Amalgamated Transit Union Loc. 85 v.
Port Auth. of Allegheny Cnty., 39 F.4th 95, 101 (3d Cir. 2022)
(affirming a mandatory preliminary injunction that required an
employer to rescind its discipline of its employees); Osorio-
Martinez v. Att’y Gen., 893 F.3d 153, 178–79 (3d Cir. 2018)
(reversing the denial of a mandatory preliminary injunction to
require petitioners’ release from immigration detention).
9
Cf. Elliott v. Kiesewetter, 98 F.3d 47, 56 n.5 (3d Cir. 1996)
(“A non-party cannot be bound by the terms of an injunction
unless the non-party is found to be acting ‘in active concert or
participation’ with the party against whom injunctive relief is
sought” (quoting Fed. R. Civ. P. 65(d))).

18

As equitable relief, a preliminary injunction may not be
awarded as of right; rather it is dependent on the exercise of
judicial discretion. See Transcon. Gas Pipe Line Co. v. Pa.
Env’t Hearing Bd., 108 F.4th 144, 150 (3d Cir. 2024). That
discretion is guided by four considerations for which the
movant bears the burden of proof:
1. A reasonable probability of success on the
merits of the claim for which injunctive
relief is sought;
2. An irreparable harm in the absence of
preliminary injunctive relief;
3. A balancing of the equities associated
with the possibilities of harms to other
interested persons resulting from the grant
or denial of injunctive relief; and
4. An assessment of the public interest.
Erie Indem. Co. v. Stephenson, 157 F.4th 265, 275 (3d Cir.
2025) (quoting Transcon. Gas, 108 F.4th at 150); see also
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
The first two showings are necessary – a preliminary injunction
cannot be issued unless they are satisfied. See Transcon. Gas,
108 F.4th at 150. If they are, then all four factors bear on a
district court’s exercise of discretion in resolving the motion.
See id. at 150–51.
10

10
In the context of a motion for a stay pending appeal, which
is governed by a similar four-factor analytical framework, the
third factor (balancing of the hardships) and the fourth factor
(weighing the public interest) “merge” when the federal
government is a party to the case. Nken v. Holder, 556 U.S.
418, 435 (2009). Even if that rule were applied outside of the
stay context, it would not have ready application to cases in

19

On appeal, a district court’s preliminary-injunction ruling
is reviewed de novo for questions of law, for clear error as to
factual findings, and for an abuse of discretion with respect to
the exercise of equitable discretion. See Erie Indem., 157 F.4th
at 276.
11

Here, the requested injunctive relief is in response to the
Kingston Defendants’ enforcement of both the Building Code
and the 2023 Zoning Ordinance. Violations of the Building
Code were the stated reasons for originally condemning both
properties. And provisions in the 2023 Zoning Ordinance were
the grounds for the perpetuation of the condemnation orders,
the inability to quickly and easily permit the proposed exercise
of religion on the properties, and the threatened daily fines of
$500. Because the appropriateness of equitable relief may
depend on whether the challenged enforcement actions were
based on the Building Code or on the 2023 Zoning Ordinance,
the preliminary-injunction analysis is conducted separately for
the two sets of challenges.
A. Preliminary Injunctive Relief with Respect to
Enforcement of the Building Code
With respect to the enforcement of the Building Code,
Rabbi Hellinger and his congregation sought to preliminarily
enjoin the Kingston Defendants from maintaining the
condemnation orders for the Pierce Street properties. They did
so based on their RLUIPA substantial-burden claim.

which one of the parties is a municipal government because
municipal interests may diverge from or conflict with federal
interests. Thus, in cases not involving the federal government,
there is still value in balancing the hardships separately from
consideration of the public interest.
11
But cf. Camenisch, 451 U.S. at 395 (“[T]he findings of fact
and conclusions of law made by a court granting a preliminary
injunction are not binding at trial on the merits.”).

20

1. RLUIPA’s Land-Use Substantial-Burden
Provision
RLUIPA protects the use of real property for religious
exercise in several respects. See generally 42 U.S.C. § 2000cc.
Three of those land-use provisions apply to religious
assemblies, religious institutions, and/or religious structures.
12

Another protects the religious exercise of persons – inclusive
of religious assemblies and institutions – from land use
regulations that substantially burden their religious exercise.
See id. § 2000cc(a)(1) (explicitly “including a religious
assembly or institution” in its definition of “a person”); see
also 1 U.S.C. § 1 (defining ‘person’ broadly); cf. Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682, 705–19 (2014)
(holding that, as a corporation was a ‘person’ under 1 U.S.C.
§ 1, it can exercise religion for purposes of the Religious
Freedom Restoration Act’s substantial-burden provision, see
42 U.S.C. § 2000bb-1(a)–(b)).
To redress violations of any of its protections, RLUIPA
provides a private cause of action against a ‘government,’
42 U.S.C. § 2000cc-2(a), defined broadly to include not only
states, counties, and municipalities but also persons acting
under color of state law, id. § 2000cc-5(4)(A); see also id.
§ 2000cc-2(a) (“A person may assert a violation of this chapter
as a claim or defense in a judicial proceeding and obtain

12
See 42 U.S.C. § 2000cc(b)(1) (prohibiting governments
from imposing a land use regulation that treats religious
assemblies or institutions on “less than equal terms with a
nonreligious assembly or institution”); id. § 2000cc(b)(2)
(prohibiting governments from imposing a land use regulation
that “discriminates against any assembly or institution on the
basis of religion or religious denomination”); id.
§ 2000cc(b)(3) (prohibiting governments from imposing a land
use regulation that “totally excludes religious assemblies from
a jurisdiction” or “unreasonably limits religious assemblies,
institutions, or structures within a jurisdiction”).

21

appropriate relief against a government.”). That private cause
of action is governed by a burden-shifting framework, which
starts with a RLUIPA plaintiff’s obligation to make a prima
facie showing of a violation of one of RLUIPA’s land-use
provisions (or of the Free Exercise Clause). See id.
§ 2000cc-2(b). A RLUIPA defendant may rebut a prima facie
case, but in doing so, it bears the burden of proof. See id.; see
also New Harvest Christian Fellowship v. City of Salinas,
29 F.4th 596, 601–02 (9th Cir. 2022) (explaining that once a
RLUIPA plaintiff “establishes that it has experienced a
substantial burden,” then “the burden shift[s] to the [defendant]
to show that its” imposition of that burden “is narrowly tailored
to accomplish a compelling governmental interest”).
For a substantial-burden claim under RLUIPA’s land-use
provisions, a prima facie case consists of three elements:
1. a land use regulation;
13

2. that was imposed or implemented by a
government;
14

3. in a manner that imposes a substantial
burden on the religious exercise of a
person, assembly, or institution.
15

If a RLUIPA plaintiff makes those showings, then to avoid
liability, a RLUIPA defendant must “demonstrate” that
imposing the substantial burden:

13
See 42 U.S.C. § 2000cc(a)(1); see also id. § 2000cc-5(5)
(defining ‘land use regulation’).
14
See 42 U.S.C. § 2000cc(a)(1); see also id. § 2000cc-5(4)
(defining ‘government’).
15
See 42 U.S.C. § 2000cc(a)(1); see also id. § 2000cc-5(7)
(giving meaning to the term ‘religious exercise’).

22

(A) is in furtherance of a compelling
governmental interest; and
(B) is the least restrictive means of furthering
that compelling governmental interest.
42 U.S.C. § 2000cc(a)(1); see also id. § 2000cc-5(2) (defining
‘demonstrates’ as “meets the burdens of going forward with
the evidence and of persuasion”).
Applied here, for Rabbi Hellinger and Anash to have a
likelihood of success on the merits for their substantial-burden
claim, it must be likely that they can make a prima facie case
and that the Kingston Defendants cannot make at least one of
the counter-showings.
2. The Ability to Obtain Preliminary
Injunctive Relief from Building Code
Violations Under RLUIPA’s Land-Use
Substantial-Burden Provision
The first element of a prima facie case – a land use
regulation – poses an obstacle for Rabbi Hellinger and his
congregation. As defined by RLUIPA, the term ‘land use
regulation’ encompasses “zoning and landmarking law[s]”
without reference to building codes:
The term ‘land use regulation’ means a zoning or
landmarking law, or the application of such a
law, that limits or restricts a claimant’s use or
development of land (including a structure
affixed to land), if the claimant has an ownership,
leasehold, easement, servitude, or other property
interest in the regulated land or a contract or
option to acquire such an interest.
Id. § 2000cc-5(5). It may be that some provisions in a building
code, including Kingston’s, still govern zoning or landmarking
or constitute applications of zoning and landmarking laws, and

23

thus would be within RLUIPA’s definition of ‘land use
regulation.’
16
But the identified provisions of the Building
Code on which the violations here were based – those for a lack
of sprinklers, fire extinguishers, egress signage, and
emergency lights, as well as for open electrical issues – apply
regardless of the zoning district or the landmarking status of
the buildings, and thus they do not qualify as land use
regulations within the scope of RLUIPA.
Rabbi Hellinger and his congregation therefore do not have
a likelihood of satisfying the first element of a prima facie case,
and hence they have no likelihood of success on the merits of
their substantial-burden claim with respect to the enforcement
of the Building Code. Consequently, it was not error for the
District Court to deny preliminary injunctive relief on that
ground. See Transcon. Gas, 108 F.4th at 150 (explaining that

16
Compare Redeemed Christian Church of God (Victory
Temple) Bowie v. Prince George’s County, 17 F.4th 497, 506–
09 (4th Cir. 2021) (holding that a county’s legislative
amendment to its “Water and Sewer Plan” was a ‘land use
regulation’ under RLUIPA because it “divide[d] the relevant
area into different categories, each of which impact[ed] land
use and restrict[ed] or permit[ted] a property’s development”),
and Fortress Bible Church v. Feiner, 694 F.3d 208, 215–18
(2d Cir. 2012) (holding that a town’s “environmental quality
statute,” though “by itself . . . not a zoning law,” fell within the
ambit of RLUIPA because “in this case the [t]own used the
[environmental quality statute] review process as its vehicle for
determining the zoning issues related to [a] [c]hurch’s land use
proposal”), with St. John’s United Church of Christ v. City of
Chicago, 502 F.3d 626, 641 (7th Cir. 2007) (holding that a
city’s exercise of eminent domain was not a ‘land use
regulation’ under RLUIPA), and Prater v. City of Burnside,
289 F.3d 417, 434 (6th Cir. 2002) (holding that a city’s
decision to develop a dedicated roadway pursuant to its
ownership interest in that property was not an imposition or
implementation of a ‘land use regulation’).

24

a showing of likelihood of success on the merits is a required
element for a preliminary injunction).
B. Preliminary Injunctive Relief with Respect to
the Enforcement of the 2023 Zoning
Ordinance as to the Pierce Street Properties
1. Likelihood of Success on the Merits
Rabbi Hellinger and his congregation also seek to enjoin
the Kingston Defendants from enforcing the 2023 Zoning
Ordinance against the Pierce Street properties on several
grounds. As far as RLUIPA violations, they claim that the
ordinance imposes a substantial burden on their religious
exercise, see 42 U.S.C. § 2000cc(a)(1); that it implements a
land use regulation for a religious assembly or institution on
less than equal terms than a nonreligious assembly or
institution, see id. § 2000cc(b)(1); and that it unreasonably
limits religious assemblies, institutions, and structures, see id.
§ 2000cc(b)(3)(B). They also rely on a procedural-due-process
claim.
For Rabbi Hellinger and Anash to have a likelihood of
success on the first of those claims – the substantial-burden
claim – it must be likely that they could make a prima facie
case and that the Kingston Defendants could not make at least
one of the counter-showings. See id. §§ 2000cc(a)(1),
2000cc-2(b).
a. The Prima Facie Showing
of a Substantial Burden
It is likely that Rabbi Hellinger and his congregation will
be able to establish a prima facie substantial-burden claim.
First, as to the land-use-regulation requirement, the
2023 Zoning Ordinance likely qualifies as a ‘land use
regulation’ under RLUIPA because it regulates zoning within
Kingston. See 42 U.S.C. § 2000cc-5(5).

25

Second, the requirement that the land use regulation be
imposed or implemented by a government is likely met. Each
of the Kingston Defendants is within RLUIPA’s definition of
‘government.’ See id. § 2000cc-5(4)(A). And their challenged
actions are based on the implementation of the 2023 Zoning
Ordinance – denying access to and use of the Pierce Street
properties by perpetuating the effect of the condemnation
orders, providing no quick and easy means of permitting the
exercise of religion on the properties, and threatening daily
citations of $500.
Third, it is likely that the implementation of the
2023 Zoning Ordinance substantially burdens Rabbi Hellinger
and his congregation’s religious exercise. The meaning of
‘substantial burden’ as used in RLUIPA’s prohibitions
regarding land use regulations presents a novel question for
this Circuit.
17
By way of reference point, in Washington v.

17
Our sister circuits have taken a variety of approaches to the
substantial-burden standard in the context of land use
regulations. See, e.g., Roman Cath. Bishop of Springfield v.
City of Springfield, 724 F.3d 78, 94–97 (1st Cir. 2013) (using
a multi-factor functional approach to assess a substantial
burden); Westchester Day Sch. v. Village of Mamaroneck,
504 F.3d 338, 349–52 (2d Cir. 2007) (considering multiple
factors in connection with the substantial-burden standard,
including the feasibility of alternative locations); Bethel World
Outreach Ministries v. Montgomery Cnty. Council, 706 F.3d
548, 556 (4th Cir. 2013) (explaining that the substantial-
burden standard is satisfied by proof that a “government
regulation puts substantial pressure on [a plaintiff] to modify
its behavior”); Livingston Christian Schs. v. Genoa Charter
Township, 858 F.3d 996, 1003–05 (6th Cir. 2017) (requiring
“some degree of severity” for a burden “to be considered
‘substantial’” and also considering multiple other factors); C.L.
for Urb. Believers v. City of Chicago, 342 F.3d 752, 761
(7th Cir. 2003) (requiring that the land use regulation bear “a
direct, primary, and fundamental responsibility for rendering

26

Klem, 497 F.3d 272 (3d Cir. 2007), this Court gave meaning to
the term ‘substantial burden’ in the context of RLUIPA’s
protections for institutionalized persons. In doing so,
Washington recognized the separateness of the two substantial-
burden protections – those for institutionalized persons and
those for land use – and expressly stated that the land-use
protections were “not applicable” in the institutionalized
person context. Id. at 277. From there, Washington looked to
two Supreme Court decisions – Sherbert v. Verner, 374 U.S.
398 (1963), and Thomas v. Review Board of the Indiana
Employment Security Division, 450 U.S. 707 (1981) –
involving the denial of government-provided benefits based on
a sincerely held religious belief. Washington, 497 F.3d at 278–
79 (citing Sherbert, 374 U.S. at 404, 406 n.6, for its analysis of
the denial of unemployment benefits based on job discharge
stemming from sabbath observances, and Thomas, 450 U.S. at

religious exercise—including the use of real property for the
purpose thereof within the regulated jurisdiction generally—
effectively impracticable” for there to be a substantial burden);
Marianist Province of U.S. v. City of Kirkwood, 944 F.3d 996,
1001 (8th Cir. 2019) (holding that a burden was not substantial
when there were “feasible alternative locations for religious
exercise”); Guru Nanak Sikh Soc’y of Yuba City v. County of
Sutter, 456 F.3d 978, 988 (9th Cir. 2006) (“[F]or a land use
regulation to impose a ‘substantial burden,’ it must be
‘oppressive’ to a ‘significantly great’ extent.” (alteration in
original) (quoting S.J. Christian Coll. v. City of Morgan Hill,
360 F.3d 1024, 1034 (9th Cir. 2004))); Grace United
Methodist Church v. City of Cheyenne, 451 F.3d 643, 660 n.4,
661–63 (10th Cir. 2006) (holding that to be substantial, a
burden did not have to relate to “fundamental” religious
activities); Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214, 1227 (11th Cir. 2004) (explaining that to be
substantial, a burden “must place more than an inconvenience
on religious exercise,” and rather must involve “significant
pressure which directly coerces the religious adherent to
conform his or her behavior accordingly”).

27

717–18, for its analysis of the denial of unemployment benefits
stemming from an employee quitting due to refusal to produce
materials used in war).
Relying primarily on those two cases, Washington
identified two circumstances in which an institutionalized
person could experience a RLUIPA-protected substantial
burden on religious exercise. The first occurs when such a
person is “forced to choose between following the precepts of
his religion and forfeiting benefits otherwise generally
available to other inmates.” Id. at 280. The second takes place
when “the government puts substantial pressure on an adherent
to substantially modify his behavior and to violate his beliefs.”
Id.
Subsequently, in Holt v. Hobbs, 574 U.S. 352 (2015), the
Supreme Court adjudicated a RLUIPA substantial-burden
claim by an institutionalized person. It held that a prison policy
that required an inmate to “engage in conduct that seriously
violates [his] religious beliefs” was a substantial burden. Id. at
361 (alteration in original) (quoting Hobby Lobby, 573 U.S. at
720). That decision is consistent with the Washington
formulation in that they both focus on conflicts with an
inmate’s religious beliefs. But unlike this Court in
Washington, the Supreme Court did not explicitly confine the
substantial-burden claim for institutionalized persons to only
two situations. Id. at 361–62.
Nonetheless, Washington provides a reference point for
evaluating the meaning of ‘substantial burden’ in the context
of RLUIPA’s land-use protections. That is so because,
although they are not identical, RLUIPA’s institutionalized-
persons provisions and its land-use provisions both use a
substantial-burden standard subject to strict scrutiny. Compare
42 U.S.C. § 2000cc-1(a), with id. § 2000cc(a)(1). The
structural similarity allows the situations identified in
Washington under which RLUIPA protects religious beliefs of
institutionalized persons to be translated into the land-use

28

context by accounting for the differences between the two
statutory provisions. That may be done by extending the
protections for institutionalized persons to all persons –
including religious assemblies and institutions, see id.
§ 2000cc(a)(1) – and by linking those protections to the
imposition or implementation of a land use regulation, see id.
Doing so yields two substantial-burden scenarios – both related
to the protection of religious belief. The first occurs when a
person is forced to choose between following the precepts of
his religion and avoiding the effect of a land use regulation. Cf.
Washington, 497 F.3d at 280. The second occurs when a land
use regulation places substantial pressure on a person to
substantially modify his behavior in violation of his beliefs.
Cf. id.
18

18
The two Supreme Court cases relied on in Washington to
formulate the two-part definition of ‘substantial burden’ for
institutionalized persons do not pose any obstacle to a broader
understanding of the term ‘substantial burden’ in the land-use
context. Both of those cases – Sherbert and Thomas – involved
the denial of benefits based on actions inspired by religious
belief, and a land use regulation may substantially burden
religious exercise in different ways than the denial of benefits
may substantially burden religious exercise. See Bethel World
Outreach, 706 F.3d at 555 (contrasting the land-use context
with the institutionalized-persons context and observing that
“[e]ven government action preventing a religious organization
from building a church will rarely, if ever, force the
organization to violate its religious beliefs, because the
organization can usually locate its church elsewhere,” and thus
“requiring a religious organization to prove that a land use
regulation pressured it to violate its beliefs would be
tantamount to eliminating RLUIPA’s substantial burden
protection in the land use context”); cf. Westchester, 504 F.3d
at 348–49 (explaining that “in the context of land use, a
religious institution is not ordinarily faced with the same

29

There may be a temptation to conclude that those
protection-of-belief scenarios define the scope of RLUIPA’s
land-use substantial-burden protections. But RLUIPA shields
more than just religious beliefs; it protects ‘religious exercise,’
defined as “any exercise of religion” including the use of real
property for religious exercise. 42 U.S.C. § 2000cc-5(7)(A)–
(B); cf. generally Emp. Div., Dep’t of Hum. Res. of Or. v.
Smith, 494 U.S. 872, 887 (1990) (explaining that “the ‘exercise
of religion’ often involves not only belief and profession but
the performance of (or abstention from) physical acts”).
Furthermore, RLUIPA’s substantial-burden provision is
considerably broader for land use regulation than for
institutionalized persons in several respects. Compare
42 U.S.C. § 2000cc(a), with id. § 2000cc-1. As a baseline,
RLUIPA identifies two broad categories of permissible
applicability for its substantial-burden protections for
institutionalized persons: (i) for programs or activities that
have received federal financial assistance, see id.
§ 2000cc-1(b)(1), and (ii) for substantial burdens that affect
foreign, interstate, or tribal commerce, see id.
§ 2000cc-1(b)(2). In addition to those, RLUIPA includes a
third category of permissible application for its religious land-
use protections: in situations involving “individualized
assessments of the proposed uses for the property involved.”
Id. § 2000cc(a)(2)(C).
19
Moreover, in the land-use context, the
substantial-burden provision is not limited to institutionalized

dilemma of choosing between religious precepts and
government benefits”).
19
The RLUIPA claims by Rabbi Hellinger and Anash are
within, if nothing else, that final category – individualized
assessments of proposed property uses, see 42 U.S.C.
§ 2000cc(a)(2)(C) – because they are traceable to the Kingston
Defendants’ individualized determinations of the 2023 Zoning
Ordinance’s applicability to the proposed uses of the Pierce
Street properties.

30

persons but instead applies to all ‘persons,’ which, as defined,
includes religious assemblies and institutions, id.
§ 2000cc(a)(1), as well as “corporations, companies,
associations, firms, partnerships, societies, and joint stock
companies,” 1 U.S.C. § 1; cf. Hobby Lobby, 573 U.S. at 707–
19.
20

20
Rabbi Hellinger, as a natural person, constitutes a ‘person’
protected by RLUIPA. See 1 U.S.C. § 1; cf. Hobby Lobby,
573 U.S. at 707–09. And Anash constitutes an ‘assembly’
within the common and ordinary meaning of that term at the
time of RLUIPA’s enactment. See Assembly, Merriam–
Webster’s Dictionary of Law 34 (1st ed. 1996) (defining an
‘assembly’ in relevant part as “a company of persons collected
together in one place usu[ally] for some common purpose”);
Assembly, Webster’s New World College Dictionary 82 (3d ed.
1996) (defining an ‘assembly’ in relevant part as “a group of
persons gathered together, as for worship, instruction, or
entertainment”); see also Lighthouse Inst. for Evangelism, Inc.
v. City of Long Branch, 510 F.3d 253, 284 n.29 (3d Cir. 2007)
(Jordan, J., concurring in part and dissenting in part) (relying
on dictionary definitions to explain that an “‘assembly’ is
defined as ‘a company of persons gathered together for
deliberation and legislation, worship, or entertainment,’” or as
“[a] group of persons organized and united for some common
purpose” (alteration in original) (first quoting Assembly,
Merriam–Webster’s Collegiate Dictionary 69 (10th ed. 2002),
then quoting Assembly, Black’s Law Dictionary 111 (7th ed.
1999))); Tree of Life Christian Schs. v. City of Upper
Arlington, 905 F.3d 357, 378 (6th Cir. 2018) (Thapar, J.,
dissenting) (citing dictionary definitions to explain that an
“‘assembly’ is ‘[a] group of persons gathered together for a
common reason,’” or “a group of persons gathered together,
usually for a particular purpose, whether religious, political,
educational, or social” (alteration in original) (first quoting
American Heritage Dictionary of the English Language
(4th ed. 2000), then quoting Webster’s Encyclopedic

31

For those reasons, there is a strong textual basis for reading
RLUIPA’s substantial-burden protections for religious land
use more expansively than its substantial-burden protections
for institutionalized persons. Cf. 42 U.S.C. § 2000cc-3(g)
(instructing that RLUIPA “be construed in favor of a broad
protection of religious exercise, to the maximum extent
permitted by [its terms] and the Constitution”). And
RLUIPA’s text provides guideposts for assessing the
additional breadth of meaning for the term ‘substantial burden’
in the land-use context. It requires a burden on religious
exercise resulting from a government’s imposition or
implementation of a land use regulation. See id.
§ 2000cc(a)(1). The burden must be “substantial” as well, id.,
and that is primarily a question of degree, evaluated against the
backdrop of RLUIPA’s capacious definition of ‘religious
exercise,’ which includes “any exercise of religion” as well as
“the use, building, or conversion of real property for the
purpose of religious exercise,” id. § 2000cc-5(7)(A)–(B).
Thus, the greater the nexus between a land use regulation and
religious exercise, the greater the likelihood that the land use
regulation will substantially burden religious exercise.
Application of that principle in light of other provisions in
RLUIPA produces specific legal rules in at least three
scenarios. First, a land use regulation imposes a substantial
burden on religious exercise if it restricts access to real
property that is otherwise available for the proposed exercise
of religion.
21
Second, a land use regulation – even one of

Unabridged Dictionary of the English Language (1996))). See
generally United States v. Adair, 38 F.4th 341, 350 (3d Cir.
2022) (“To discern the common ordinary meaning of [a] term[]
at the time of [a statute’s] promulgation, it is permissible to
consult contemporary dictionaries.”).
21
The limiting phrase ‘otherwise available for the proposed
exercise of religion’ accounts for the statutory terms ‘land use
regulation’ and ‘government.’ Because a substantial-burden
claim applies only to “land use regulation[s],” 42 U.S.C.

32

general applicability – imposes a substantial burden if it limits
the use of real property that is otherwise available for the
proposed exercise of religion so as to prevent the proposed
exercise of religion on the property. Third, even when the
imposition or implementation of a land use regulation does not
directly impede religious exercise, the land use regulation may
still impose a substantial burden if it has a significant adverse
effect on real property that is used or otherwise available for

§ 2000cc(a)(1), there is not a substantial burden under
RLUIPA when another source of law independently prevents
the use of the property for the proposed religious exercise. And
because RLUIPA covers only “government[s],” id., there is not
a substantial burden when non-governmental actors have and
exercise property rights to independently restrict a proposed
religious exercise. See Adderley v. Florida, 385 U.S. 39, 47
(1966) (“[A] private owner of property[] has power to preserve
the property under its control for the use to which it is lawfully
dedicated.”). Cf. Cedar Point Nursery v. Hassid, 594 U.S. 139,
149 (2021) (“The right to exclude is ‘one of the most treasured’
rights of property ownership.” (quoting Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435
(1982))). By contrast, the substantial-burden formulation
advanced by our dissenting colleague does not fully appreciate
that RLUIPA regulates “land use regulations” imposed by
“government[s],” 42 U.S.C. § 2000cc(a)(1), and that leads to
the erroneous conclusions that the substantial-burden analysis
may “consider[] the plaintiff’s ‘own actions,’” Dissent Op. at
5 (quoting Livingston Christian Schs., 858 F.3d at 1004), and
that it should examine “whether the plaintiff had a reasonable
expectation of religious land use or whether the plaintiff’s
burden was self-imposed,” id. at 4. RLUIPA protects the
exercise of religion, and it has no provisions for scrutinizing
the actions or expectations of persons seeking to exercise
religion. Unlike First Amendment jurisprudence, see, e.g.,
Frazee v. Ill. Dep’t of Emp. Sec., 489 U.S. 829, 833–34 (1989),
RLUIPA does not impose a sincerity-of-belief prerequisite for
its protections, see 42 U.S.C. §§ 2000cc–2000cc-5.

33

the proposed exercise of religion. Cf. Thomas, 450 U.S. at 718
(recognizing that “indirect” compulsion may still be a
substantial infringement on the exercise of religion).
Aspects of the claims brought by Rabbi Hellinger and his
congregation are within each of those three scenarios.
First, because Kingston relies on the stated non-compliance
of the Pierce Street properties with the 2023 Zoning Ordinance
as a means of perpetuating the condemnation orders, the
implementation of the 2023 Zoning Ordinance restricts access
to real property used for religious exercise and thus imposes a
substantial burden on religious exercise.
Second, because Kingston has taken the position that there
is no way to “quickly or easily” allow the use of 239 Pierce
Street for religious group living, the implementation of the
2023 Zoning Ordinance limits the use of real property in a way
that prevents religious exercise on that property. Letter from
Harry P. Mattern, Municipal Solicitor, Municipality of
Kingston, to David Schwager, Attorney for Rabbi Hellinger
(Oct. 4, 2023) (JA209).
Third, because Kingston relies on the 2023 Zoning
Ordinance as the basis for the threatened daily citations of $500
per Pierce Street property, the implementation of the
2023 Zoning Ordinance has a significant adverse effect on real
property used for religious exercise. The threat of daily
citations in any amount is an adverse effect. And here that
effect is likely significant. As a benchmark, the purchase price
of 239 Pierce Street in 2019 was $45,000 and the purchase
price of 44 Pierce Street in 2021 was $134,000. In light of
those figures, and even accounting for inflation, daily $500
fines would quickly amount to sizeable liability relative to the
approximate property values of the two properties. Hence, the
threatened $500 daily fines would likely have significant
adverse effects on the Pierce Street properties and
consequently be a substantial burden on Rabbi Hellinger and

34

his congregation. Cf. Hobby Lobby, 573 U.S. at 726
(concluding that a requirement to pay “an enormous sum of
money” for action in accordance with religious belief “clearly
imposes a substantial burden on those beliefs”).
For those reasons, Rabbi Hellinger and his congregation
have shown a likelihood that they will prove a prima facie case
for their substantial-burden claim.
b. The Burden Shift to the Kingston
Defendants
With that assessment, the analysis of the likelihood of
success of the substantial-burden claim depends on the
likelihood that the Kingston Defendants will make the requisite
counter-showings of a compelling governmental interest and
implementation through the least restrictive means. As used in
tandem in RLUIPA, ‘compelling governmental interest’ and
‘least restrictive means’ are specialized terms that implement
the strict-scrutiny standard used in constitutional law. See
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch,
510 F.3d 253, 269 (3d Cir. 2007) (explaining that “the
[s]ubstantial [b]urden section includes a strict scrutiny
provision”).
22

22
See also Centro Familiar Cristiano Buenas Nuevas v. City
of Yuma, 651 F.3d 1163, 1171 (9th Cir. 2011) (explaining that
“[t]he Constitutional phrases, ‘substantial burden,’
‘compelling governmental interest,’ and ‘least restrictive
means,’ are all included in the ‘substantial burden’ provision”
(citing 42 U.S.C. § 2000cc(a)(1))); Opulent Life Church v. City
of Holly Springs, 697 F.3d 279, 292 n.12 (5th Cir. 2012)
(stating in the context of a claim under RLUIPA’s equal-terms
provision, see 42 U.S.C. § 2000cc(b)(1), that “strict scrutiny is
the proper test for claims under the [s]ubstantial [b]urden
[c]lause” (citing 42 U.S.C. § 2000cc(a))); cf. Thomas, 450 U.S.
at 718–19 (determining that “[t]he state may justify an inroad
on religious liberty by showing that it is the least restrictive

35

The first of those terms, ‘compelling interest,’ refers to an
interest “of the highest order.” Wisconsin v. Yoder, 406 U.S.
205, 215 (1972). Such an interest, therefore, is greater than the
‘important interest’ required for intermediate or exacting
scrutiny and much greater than the ‘legitimate interest’
required for rational basis review.
23

In light of that understanding, it is quite unlikely that the
Kingston Defendants will be able to demonstrate a compelling
interest for the substantial burdens at issue here: (i) the
prolonged condemnation of the Pierce Street properties based
on the 2023 Zoning Ordinance; (ii) Kingston’s inability to
quickly and easily allow use of 239 Pierce Street for religious
group living under the 2023 Zoning Ordinance; and (iii) the
imminent daily $500 fines for each Pierce Street property for
violations of the 2023 Zoning Ordinance.

means of achieving some compelling state interest” and that
“[n]either of the interests advanced is sufficiently compelling
to justify the burden” on religious liberty at issue).
23
See Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 607
(2021) (comparing strict scrutiny, where “the government must
adopt ‘the least restrictive means of achieving a compelling
state interest,’” to exacting scrutiny, which requires “a means
substantially related to a sufficiently important interest”
(quoting McCullen v. Coakley, 573 U.S. 464, 478 (2014)));
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439–
42 (1985) (characterizing the standard of review based on
‘compelling interest’ requirements as heightened compared
with those based on ‘important’ and ‘legitimate’ interests); cf.
Priests for Life v. HHS, 808 F.3d 1, 21 (D.C. Cir. 2015)
(Kavanaugh, J., dissenting from the denial of rehearing en
banc) (“No code or history book lists the Government’s
compelling interests. Rather, courts have developed those
interests over time, in common-law-like fashion.”).

36

First, it is unlikely that the Kingston Defendants will be
able to demonstrate a compelling governmental interest in
perpetuating the condemnation orders after the Building Code
violations have been remediated. A municipality’s interest in
land use regulation may be legitimate, and possibly important
or even compelling in some rare situations.
24
But the
implementation of the 2023 Zoning Ordinance in a manner to
prevent access to and use of the Pierce Street properties once
they are compliant with the Building Code is not a “highest
order” governmental interest. Id. at 215. Therefore, the
Kingston Defendants are not likely to demonstrate a
compelling governmental interest in perpetuating the
condemnation orders.
Second, because they rely on the 2023 Zoning Ordinance
to deny Rabbi Hellinger and his congregation the ability to use
239 Pierce Street, the Kingston Defendants also have to show
a compelling governmental interest in the lack of a quick and
easy means for allowing the proposed – and previously
permitted – uses of the properties. Yet other than allusions to

24
Compare Whitton v. City of Gladstone, 54 F.3d 1400, 1408
(8th Cir. 1995) (“[A] municipality’s asserted interests in traffic
safety and aesthetics, while significant, have never been held
to be compelling.”), and Thai Meditation Ass’n of Ala., Inc. v.
City of Mobile, 83 F.4th 922, 929–31 (11th Cir. 2023)
(concluding, in a case that involved a RLUIPA substantial-
burden claim concerning a land use regulation as well as a state
law that “like RLUIPA, require[d] the government’s action to
satisfy strict scrutiny to survive review,” that for the state law,
a “generalized invocation[] of [a] government interest[] in
‘zoning’” is “insufficient to carry the government’s burden” to
show a compelling interest), with Redeemed Christian Church,
17 F.4th at 510 (explaining that a “compelling interest” is one
that implicates “the government’s paramount interest in
protecting physical or mental health, public safety, or public
welfare” (quoting Am. Life League, Inc. v. Reno, 47 F.3d 642,
655 (4th Cir. 1995))).

37

health and safety concerns, the Kingston Defendants do not
provide any justification for their predicted delays associated
with permitting religious group living on that property. In that
respect, too, they have failed to establish a compelling
governmental interest for their implementation of the
2023 Zoning Ordinance.
25

Third, the Kingston Defendants’ interests in threatening
daily $500 citations for violations of the 2023 Zoning
Ordinance are likewise dubious. The stated basis for the
zoning violation with respect to 239 Pierce Street was a
moving target. Kingston started by asserting that the property
was used as a rooming/boarding house, and switched to insist
that the building was used as a dormitory. Neither works well.
Under the 2023 Zoning Ordinance, to be a ‘rooming and/or
boarding house,’ such a property “contains rooms which are
rented or leased,” Municipality of Kingston, Pa., Zoning
Ordinance § 203, but the residents of 239 Pierce Street did not
pay rent, and there is no evidence that they had leases, as they
were considered congregants rather than tenants. Moreover,
the 2023 Zoning Ordinance does not even define the term
‘dormitory,’ much less provide any zoning regulations with
respect to dormitories. Id. (showing no listing of ‘dormitory’

25
See Hobbs, 574 U.S. at 363 (explaining in the context of a
substantial-burden claim under RLUIPA’s protections for the
religious exercise of institutionalized persons that the
compelling interest test requires “application of the challenged
law ‘to the person’—the particular claimant whose sincere
exercise of religion is being substantially burdened” (quoting
Hobby Lobby, 573 U.S. at 726)); Westchester, 504 F.3d at 353
(explaining in the context of a RLUIPA substantial-burden
claim concerning a land use regulation that the government
must “show a compelling interest in imposing the burden on
religious exercise in the particular case at hand, not a
compelling interest in general” (citing Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 432
(2006))).

38

where such definition would be in alphabetical listing); see
also id. (providing the sole mention of ‘dormitory’ in
2023 Zoning Ordinance stating that it is excluded from the
definition of ‘rooming house’). As far as 44 Pierce Street, the
proposed citation was predicated on its use as a ‘school.’ But
as defined by the 2023 Zoning Ordinance, a school must be
licensed by the state. Id. And Kingston admitted that it knew
that the 44 Pierce Street property was not licensed by the
Commonwealth. It is therefore likely that 44 Pierce Street
could not meet the definition of a ‘school.’ Hence, the
rationales for the threatened daily citations are precarious –
much closer to illegitimate motives than compelling
governmental interests.
26

26
In deciding that Rabbi Hellinger and his congregation were
not likely to succeed on the merits of their substantial-burden
claim, the District Court opined that Rabbi Hellinger had not
established religious animus or discriminatory intent by the
Kingston Defendants. Anash, 2024 WL 5294369, at *7. That
assessment appears to be based on the absence of direct
evidence, as the District Court did not consider the cumulative
significance of circumstantial evidence of animus or
discriminatory intent. That includes the unexplained change in
the designation of 239 Pierce Street from a rooming/boarding
house to a dormitory; the treatment of 239 Pierce Street as a
‘dormitory’ despite that term being undefined in the
2023 Zoning Ordinance; the treatment of 44 Pierce Street as a
‘school’ despite its inability to meet the definition of a ‘school’
in the 2023 Zoning Ordinance; the threat of daily fines in the
maximum allowed amount of $500 for non-compliance with
the 2023 Zoning Ordinance; the statement in the Zoning
Officer’s administrative search warrant for 239 Pierce Street
that no adult supervision was observed despite the
investigative file containing a photo of an adult walking with
two children; the assertions in each of the administrative
warrant applications that Rabbi Hellinger failed to register as a
landlord, despite the residents at 239 Pierce Street not meeting

39

One of the key justifications the District Court provided for
its contrary conclusion was the lack of evidence by Rabbi
Hellinger and Anash that other properties were unavailable as
living quarters for his congregant-students and for the purposes
of a yeshiva. Anash, 2024 WL 5294369, at *4–7. Without
Rabbi Hellinger or Anash disproving the feasibility of
alternative locations for their exercise of religion, the District
Court reasoned that the condemnation orders did not
substantially burden religious exercise. Id. at *7.
Our dissenting colleague also shares that view, see Dissent
Op. at 4, 6–7, but the feasible-alternative-locations rationale
cannot stand in light of RLUIPA. For context, there are several
reasons why governments may not want real property used for
religious exercise. Houses of worship may be exempt from
property taxes.
27
Religious exercise may also be viewed as not

the relevant definition of ‘tenants,’ Kingston Mun. Code
§ 116-3, and despite the absence of evidence that anyone ever
resided at 44 Pierce Street; and the execution of the
administrative warrants and subsequent condemnation of the
Pierce Street properties on the day before Rosh Hashanah and
the commencement of the High Holy Days, cf. Josey v. John
R. Hollingsworth Corp., 996 F.2d 632, 639–41 (3d Cir. 1993)
(explaining in the context of a Title VII claim that the timing
of events “may raise an inference of discrimination”). Cf.
generally Westchester, 504 F.3d at 353 (recognizing that
“undue deference to the opposition of a small group of
neighbors” may lead to the imposition of a substantial burden
on religious exercise); Fortress Bible Church, 694 F.3d at 219
(acknowledging that actions taken in bad faith may impose a
substantial burden “because it appears that the applicant may
have been discriminated against on the basis of its status as a
religious institution”).
27
See Douglas Laycock & Luke W. Goodrich, RLUIPA:
Necessary, Modest, and Under-Enforced, 39 Fordham Urb.
L.J. 1021, 1021 (May 2012) (explaining that churches “are
unpopular with city officials because they are tax exempt”);

40

spurring job growth or generating commercial activity.
28
And
religious exercise can strain infrastructure, such as by
increasing traffic and the demand for parking.
29
In addition,
some residents may disfavor some forms of religious
exercise.
30
But religious freedom was a value of this nation

see, e.g., 53 Pa. Cons. Stat. § 8812(a)(1) (exempting “[a]ll
churches, meetinghouses or other actual places of regularly
stated religious worship” from “all county, city, borough,
town, township, road, poor, county institution district and
school real estate taxes”).
28
See Laycock & Goodrich, 39 Fordham Urb. L.J. at 1032,
1036–37 (explaining that, “[a] new movie theater, grocery
store, or Walmart can expect at least some support from
residents who expect to patronize it, be employed by it, or gain
tax revenue from it,” but “the vast majority of residents know
they will never attend a proposed new church,” and
“[c]hurches also face opposition on the closely related ground
that they put a damper on commercial or entertainment
districts,” with the result being that “churches are unwanted in
rural and residential districts because they generate too much
traffic, and unwanted in commercial districts because they
generate too little”).
29
See Laycock & Goodrich, 39 Fordham Urb. L.J. at 1021
(explaining that churches “are unpopular in residential zones
because they allegedly generate too much traffic, noise, and
congestion”).
30
See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 525–28 (1993) (describing community-member
opposition to religious ritual animal sacrifice practiced in
Santeria, leading to ordinances limiting such practices);
Laycock & Goodrich, 39 Fordham Urb. L.J. at 1025–36
(explaining the roles of religious hostility and NIMBY (‘not in
my backyard’) resistance in the zoning context); see also id. at
1039–40 (“Th[e] widespread resistance to churches results in a
collective action problem. If one suburb is open to churches,
and its near neighbors are not, the open suburb may become

41

from its earliest origins. See Fulton v. City of Philadelphia,
593 U.S. 522, 572 (2021) (Alito, J., concurring in the
judgment) (explaining that, by the time of the First
Amendment’s adoption, “the right to religious liberty already
had a long, rich, and complex history in this country”). And
through RLUIPA’s land-use substantial-burden provision,
Congress codified a basic principle: except when the
implementation of a land use regulation satisfies strict scrutiny,
the choice of where the exercise of religion can take place
should be left to persons with rights of access to and use of real
property – not to zoning codes and landmarking laws
promulgated by governments. See 42 U.S.C. § 2000cc(a)(1);
see also id. § 2000cc-5(5) (defining the term ‘land use
regulation’ by reference to a claimant’s “ownership, leasehold,
easement, servitude, or other property interest in the regulated
land”).
Thus, in all but the most dire circumstances, a land use
regulation that prevents access to or use of real property for
religious exercise will contravene RLUIPA – regardless of the
presence of feasible alternative locations for the religious
exercise.
31
And because a land use regulation must satisfy

overloaded. The perception is that too many churches will
move in, reducing the tax base and upsetting local residents.
Thus, the incentive is for every jurisdiction to exclude at least
as much as neighboring jurisdictions, and maybe a little
more.”).
31
Contra Westchester, 504 F.3d at 352 (considering “whether
there are quick, reliable, and financially feasible alternatives”
to meeting religious needs as part of the substantial-burden
analysis); Jesus Christ Is the Answer Ministries, Inc. v.
Baltimore County, 915 F.3d 256, 261 (4th Cir. 2019)
(explaining that, in circumstances where “an organization
acquires property expecting to use it for a religious purpose but
is prevented from doing so by the application of a zoning
ordinance,” there “usually” exists an “impediment to the
organization’s religious practice [that is] substantial” when

42

strict scrutiny in order to dictate where religious exercise may
take place, Rabbi Hellinger and his congregation did not need
to disprove the feasibility of alternative locations for the
exercise of their religion in order to show that their exercise of
religion was substantially burdened.
Without a likelihood of showing a compelling
governmental interest in the enforcement of the 2023 Zoning
Ordinance as to the Pierce Street properties, the prima facie
case is not likely to be rebutted, and it is not necessary to
engage in a least-restrictive-means analysis.
Even so, our dissenting colleague identifies another ground
on which he believes Rabbi Hellinger and his congregation
would not have a likelihood of success on the merits. He
opines that the case is unripe because Rabbi Hellinger and
Anash sued the Kingston Defendants prematurely. As he sees
it, they should not have sued until the Kingston Defendants had

“the organization must acquire a different property as a result,”
provided that “use of the property would serve an unmet
religious need” and “the restriction on religious use is absolute
rather than conditional”), as amended (Feb. 25, 2019);
Livingston Christian Schs., 858 F.3d at 1004 (considering the
feasibility of alternative locations as part of the substantial-
burden analysis); Edgewood High Sch. of the Sacred Heart,
Inc. v. City of Madison, 95 F.4th 1080, 1088 (7th Cir. 2024)
(explaining that “the availability of other adequate properties
to host religious activities may defeat a substantial burden
claim”); Marianist Province, 944 F.3d at 1001 (holding that
“requiring a religious institution to use feasible alternative
locations for religious exercise does not constitute a substantial
burden”); New Harvest, 29 F.4th at 602 (explaining that the
availability of alternative locations is “plainly relevant to the
substantial-burden inquiry”); Midrash, 366 F.3d at 1227 n.11
(holding that the absence of feasible alternative locations “does
not create a substantial burden within the meaning of
RLUIPA”).

43

an opportunity to make final determinations as to the
application of the 2023 Zoning Ordinance to the Pierce Street
properties. Dissent Op. at 9–11. But the Kingston Defendants
did make final determinations with respect to the Pierce Street
properties. They issued two condemnation orders, and after
concluding that there was no quick or easy way to bring the
properties into compliance, they threatened daily fines of $500.
More deeply, RLUIPA’s substantial-burden provision is not
contingent upon the formality of a final land-use
determination. Rather, that provision applies whenever a
“substantial burden is imposed in the implementation of a land
use regulation or system of land use regulations, under which
a government makes, or has in place formal or informal
procedures or practices that permit the government to make,
individualized assessments of the proposed uses for the
property involved.” 42 U.S.C. § 2000cc(a)(2)(C).
Even upon consideration of prudential ripeness,
32
the
substantial-burden claim meets the requirements of (i) fitness
for judicial decision and (ii) hardship resulting from the
withholding of judicial review. See Stolt-Nielsen S.A. v.
AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010) (“In
evaluating a claim to determine whether it is ripe for judicial
review, we consider both ‘the fitness of the issues for judicial
decision’ and ‘the hardship of withholding court
consideration.’” (quoting Nat’l Park Hosp. Ass’n v. Dep’t of
Interior, 538 U.S. 803, 808 (2003))). The substantial-burden
claim is fit for judicial decision because it can be evaluated on

32
But cf. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167
(2014) (relying on Lexmark, Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 126 (2014), for the
proposition that prudential ripeness is “in some tension” with
a federal court’s virtually unflagging obligation to hear and
decide cases within its jurisdiction, but declining to address
“the continuing vitality of the prudential ripeness doctrine . . .
because the ‘fitness’ and ‘hardship’ factors [were] easily
satisfied”).

44

this record. And withholding review would result in a hardship
– the substantial burden on the exercise of religion.
33

33
Our dissenting colleague also suggests that the appeal has
become moot by virtue of the consent decree, which provides
for the adoption of curative amendments to the 2023 Zoning
Ordinance. Dissent Op. at 8–9. But the record does not
support a mootness ruling. No party has moved to supplement
the record with evidence that Rabbi Hellinger and his
congregation have regained access to the Pierce Street
properties. Nor is the consent decree between the United States
and Kingston a certain panacea for the RLUIPA substantial-
burden claims at issue here as the suit initiated by the
Department of Justice did not include a substantial-burden
claim. And although amendments to the 2023 Zoning
Ordinance have recently been adopted by the Kingston Town
Council, they have not yet taken effect. Even then, mootness
would not be automatic because “a defendant’s voluntary
cessation of the complained-of conduct does not moot claims
for prospective relief unless that defendant meets the ‘heavy’
burden of establishing that ‘there is no reasonable expectation
that the wrong will be repeated,’” Lutter v. JNESO, 86 F.4th
111, 130 (3d Cir. 2023) (quoting United States v. W. T. Grant
Co., 345 U.S. 629, 633 (1953)), and that “interim relief or
events have completely and irrevocably eradicated the effects
of the alleged violation,” id. at 130–31 (quoting County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979)). Without those
showings necessary to overcome the voluntary-cessation
exception to mootness, resort to mootness is inappropriate.
Our dissenting colleague cites an out-of-circuit case for the
proposition that voluntary-cessation principles do not apply to
consent decrees. Dissent Op. at 9 (citing Env’t Conservation
Org. v. City of Dallas, 529 F.3d 519, 528 (5th Cir. 2008)). But
consent decrees are voluntarily entered into by the parties to a
case, see Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367,
378 (1992) (“A consent decree no doubt embodies an
agreement of the parties . . . .”), and this Court has not adopted

45

In sum, there is a likelihood that Rabbi Hellinger and his
congregation will succeed on the merits of their substantial-
burden claim. And because they seek the same or less-
encompassing preliminary injunctive relief with respect to
their other claims – those for violating RLUIPA’s equal-terms
and exclusions-and-limits provisions as well as for procedural
due process – it is unnecessary to evaluate the likelihood of
success of those claims.
2. Irreparable Harm
Rabbi Hellinger and his congregation demonstrated an
irreparable harm. They lost access to and use of real property
that was used for religious exercise, and as a result, the
congregation was no longer intact. When a government
deprives a person of access to or use of real property for which
that person has a right to access or use, the resulting injury
qualifies as irreparable harm. See Minard Run Oil Co. v. U.S.
Forest Serv., 670 F.3d 236, 256 (3d Cir. 2011), as amended
(Mar. 7, 2012) (“[W]here ‘interests involving real property are
at stake, preliminary injunctive relief can be particularly
appropriate because of the unique nature of the property
interest.’” (quoting RoDa Drilling Co. v. Siegal, 552 F.3d
1203, 1210 (10th Cir. 2009))); see also RoDa Drilling,
552 F.3d at 1211 (finding irreparable harm when a party
“provided all of the funds to purchase [a] property,” but was
“denied unfettered ownership of that property,” with the result
being that the party “cannot participate in the everyday
operations of its own interests, and the damages arising from
that denial are incalculable”).
Separately, the loss of religious freedom is itself an
irreparable harm. See Roman Cath. Diocese of Brooklyn v.
Cuomo, 592 U.S. 14, 19 (2020) (per curium) (“The loss of First
Amendment freedoms, for even minimal periods of time,

a rule excluding a consent decree entered in separate litigation
from scrutiny under voluntary-cessation principles.

46

unquestionably constitutes irreparable injury.” (quoting Elrod
v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion))). Thus,
here, where the implementation of the 2023 Zoning Ordinance
burdens religious instruction, communal prayer, religious
group living as well as the use of real property, Rabbi Hellinger
and his congregation have established an irreparable harm.
3. Balancing the Hardships
The third preliminary-injunction consideration involves
comparing the hardship a plaintiff would experience without
the injunction to the hardship that a defendant would
experience from compliance with the injunction. See ADP,
LLC v. Rafferty, 923 F.3d 113, 120 (3d Cir. 2019) (explaining
that the third consideration requires balancing “the relative
hardship that the grant or denial of an injunction would inflict
on the parties”); 11A Wright & Miller’s Federal Practice &
Procedure § 2948.2 (3d ed. Apr. 2026) (same). As far as the
hardship on Rabbi Hellinger and his congregation, without a
preliminary injunction, they cannot use the Pierce Street
properties for religious exercise, and Rabbi Hellinger’s ability
to maintain the fullness of his congregation is inhibited. If the
Kingston Defendants were enjoined from condemning the
Pierce Street properties, they would not be able to further their
interests in land use planning and regulation through the
enforcement of the 2023 Zoning Ordinance with respect to
those properties. But as explained above, that interest, at least
in this case, is not compelling – and it likely does not rise to
the level of an important governmental interest.
34
Thus,
withholding injunctive relief would inflict a greater hardship
on Rabbi Hellinger and his congregation, who seek to practice
their religion through the use of the properties, than granting
injunctive relief would impose on the Kingston Defendants.

34
Cf. Whitton, 54 F.3d at 1408; Thai Meditation Ass’n,
83 F.4th at 929–31.

47

4. The Public Interest
When, as here, the relevant public interests are protected by
federal law as well as state or municipal law, the supremacy of
federal law guides the public-interest analysis. See generally
U.S. Const. art. VI, cl. 2 (Supremacy Clause). Accordingly,
the public interest is greatest in correcting unconstitutional
practices, next in addressing interests memorialized in federal
law, and then in remedying affronts to state laws and municipal
codes.
35
Instead of recognizing that interests protected by
federal legislation take precedence over conflicting interests
preserved in state or municipal law, the District Court
evaluated the public interest solely from the municipal
perspective. Anash, 2024 WL 5294369, at *11–12. That was
error. The public interest favors vindicating RLUIPA’s
protections for Rabbi Hellinger and his congregation’s exercise
of religion over the enforcement of the 2023 Zoning
Ordinance. Cf. Ramirez v. Collier, 595 U.S. 411, 427, 433
(2022) (explaining that, in enacting RLUIPA, Congress

35
See Kim, 99 F.4th at 160 (“[R]emedying an unconstitutional
practice is always in the public interest.”); KalshiEX, LLC v.
Flaherty, 172 F.4th 220, 232 (3d Cir. 2026) (“If the Act
preempts New Jersey law, then the public interest is best served
by enforcing the Act.”); see also Roman Cath. Diocese of
Brooklyn, 592 U.S. at 19–20 (recognizing the strong public
interest in protecting the First Amendment’s guarantee of
religious liberty to assemble together for worship in the midst
of a public health crisis); Winter, 555 U.S. at 25–26 (explaining
that the “public interest in conducting [naval] training
exercises with active sonar under realistic conditions plainly
outweighs the interests advanced by the plaintiffs” in various
“ecological, scientific, and recreational interests” from
observing and studying wildlife); Virginian Ry. Co. v. Sys.
Fed’n No. 40, 300 U.S. 515, 552 (1937) (“The fact that
Congress has indicated its purpose . . . is in itself a declaration
of public interest and policy which should be persuasive in
inducing courts to give relief.”).

48

evidenced its view that there exists a strong interest in
protecting the First Amendment right to the free exercise of
religion).
5. The Discretionary Assessment
Although a preliminary injunction is not awarded as of
right, when all four factors favor granting the requested
injunction, it is quite likely that denying injunctive relief will
be an abuse of discretion. See Council of Alt. Pol. Parties v.
Hooks, 121 F.3d 876, 884 (3d Cir. 1997). In that situation, the
focus shifts away from the eligibility for injunctive relief to
instead its appropriate scope. See id. (defining the scope of a
preliminary injunction when all four factors have been met).
And here, the relevant requests for preliminary injunctive relief
– to prevent the perpetuation of the access and use restrictions
based on noncompliance with the 2023 Zoning Ordinance and
to enjoin daily $500 citations for violations of that ordinance –
align with the four-factor analysis. The District Court,
therefore, abused its discretion in denying those forms of relief.
As far as remedy, there are two means for an appellate court
to correct an erroneously denied preliminary injunction. The
first is an order reversing the denial and remanding with
instructions to grant the injunction. See 28 U.S.C. § 2106
(“The Supreme Court or any other court of appellate
jurisdiction may . . . remand the cause and direct the entry of
such appropriate judgment, decree, or order, or require such
further proceedings to be had as may be just under the
circumstances.”); see, e.g., FTC v. Penn State Hershey Med.
Ctr., 838 F.3d 327, 353–54 (3d Cir. 2016) (reversing the denial
of a motion for a preliminary injunction and remanding with
directions to the district court to enter a preliminary
injunction); Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700,
732 (3d Cir. 2004) (same). That approach has the virtues that
it does not require an appellate court to set the amount of

49

security needed for the preliminary injunction
36
and it does not
deprive a district court of the ability to modify or dissolve the
preliminary injunction if justified by a change in
circumstances.
37
The second approach is a reversal on terms
imposed by the appellate court. See 28 U.S.C. § 2106 (“The
Supreme Court or any other court of appellate jurisdiction may
affirm, modify, vacate, set aside or reverse any judgment,
decree, or order of a court lawfully brought before it for review
. . . .”). That approach, while permissible, is rarely, if ever,
used by this Court.
Between those two options, the appropriate remedy in this
case is a close call. The need for fact-finding by the District
Court as to the amount of security is not great because this
Court, like other appellate courts,
38
recognizes a narrow

36
See Fed. R. Civ. P. 65(c) (“The court may issue a preliminary
injunction or a temporary restraining order only if the movant
gives security in an amount that the court considers proper to
pay the costs and damages sustained by any party found to have
been wrongfully enjoined or restrained.”); see also Hope,
972 F.3d at 322 (“Under Rule 65(c), the absence of a bond
precludes issuance of an injunction.”); Frank’s GMC Truck
Ctr., Inc. v. Gen. Motors Corp., 847 F.2d 100, 103 (3d Cir.
1988) (“While there are exceptions, the instances in which a
bond may not be required are so rare that the requirement is
almost mandatory.”).
37
Cf. 11A Wright & Miller’s Federal Practice & Procedure
§ 2947 (“A preliminary injunction remains in effect until a
final judgment is rendered or the complaint is dismissed, unless
it expires earlier by its own terms, or is modified, stayed, or
reversed.”).
38
See Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d
797, 803 n.8 (3d Cir. 1989) (“Other courts of appeal have held
that certain non-commercial and public interest cases may
require dispensing with the bond” (citations omitted)); see also

50

exception to the bond requirement based on consideration of
the equities and the potential hardships to the parties resulting
from waiving that requirement.
39
From the record, this case
likely qualifies for the exception because the balance of the
hardships, both financial and otherwise, tilts heavily in favor
of Rabbi Hellinger and there is no monetary or undue hardship
on the Kingston Defendants for compliance with the
preliminary injunction. But while a preliminary injunction that
is strictly prohibitory may be less susceptible to modification
or dissolution by changed circumstances, this situation is
potentially dynamic. After oral argument in this case, the
United States Department of Justice separately sued Kingston
for RLUIPA violations, and in response, Kingston entered a
consent decree wherein it agreed to amend its 2023 Zoning
Ordinance. In light of the potential overlap between that
decree and the injunction in this case, it makes sense for the
District Court to have the ability to modify or dissolve the
injunction in this case if justified by changed circumstances.

Temple Univ. v. White, 941 F.2d 201, 219 n.26 (3d Cir. 1991)
(collecting cases).
39
See Temple Univ., 941 F.2d at 219–20 (deciding that, as the
moving party “was on the brink of financial ruin” while
“virtually no risk existed” for the opposing party in complying
with the ordered relief, “[t]he equities of potential hardships to
the parties, therefore, weighed in favor of waiving the bond
requirement”); see also Elliott, 98 F.3d at 59–60 (explaining
that this Court has a “recognized an exception to the Rule 65(c)
bond requirement,” albeit a “narrow” one, in circumstances
where “specific findings” demonstrate that “the balance of
these equities weighs overwhelmingly in favor of the party
seeking the injunction”); Zambelli Fireworks Mfg. Co. v.
Wood, 592 F.3d 412, 426 (3d Cir. 2010) (determining that
“discretion under Rule 65(c) to waive a bond requirement”
exists “in the exceptionally narrow circumstance where the
nature of the action necessarily precludes any monetary harm
to the defendant”).

51

Thus, the appropriate remedy here is a reversal of the order
denying the motion for preliminary injunction and a remand
with instructions for the District Court to set security in an
amount not to exceed $500 and to enter, on an expedited
basis,
40
an order that preliminarily enjoins the Kingston
Defendants from (i) restricting access to and use of the Pierce
Street properties based on those properties’ actual or alleged
non-compliance with the 2023 Zoning Ordinance and
(ii) issuing daily $500 citations based on the Pierce Street
properties’ actual or alleged violations of 2023 Zoning
Ordinance.
CONCLUSION
For the above reasons, we will REVERSE the order of the
District Court denying the motion for preliminary injunctive
relief and REMAND for further proceedings consistent with this
Opinion.

40
See Kos Pharms., 369 F.3d at 732 (reversing and remanding
an order denying a preliminary injunction with instructions for
entry of a preliminary injunction on an expedited basis).

1

RESTREPO, Circuit Judge, dissenting.

The majority’s opinion contravenes a cohesive body of law
among our sister circuits interpreting the substantial burden
provision of the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc(a)(1).
1

Commentators have described the courts as “coalesce[ing]
around a totality-of-the-circumstances test, examining whether
the government’s actions substantially inhibit religious
exercise, rather than merely inconveniencing it.” John
Kenneth Felter, A.B.A. Lit. Sec., Federal Claims Based on
Land Use Regulation, 13 Bus. & Com. Litig. Fed. Cts. §
149:44 (5th ed. 2025) (citation modified). But the majority
does not engage with this caselaw and merely offers in a
footnote the vague statement that “[o]ur sister circuits have
taken a variety of approaches,” followed by a string cite. Maj.
Op. 25 n.17.

Instead, the majority relies on RLUIPA’s separate
provisions governing prison inmates despite recognizing that
the substantial burden analysis in the prison context is “not
applicable” to RLUIPA land use cases. Maj. Op. 26 (quoting
Washington v. Klem, 497 F.3d 272, 277 (3d Cir. 2007)).
RLUIPA land use decisions uniformly caution against relying
on principles from prison cases because “land-use regulations
do not typically compel plaintiffs to ‘violate their beliefs’ in the
way that, for example, prison rules might require an inmate to
engage in conduct that goes against his or her religious tenets.”
Livingston Christian Schs. v. Genoa Charter Twp., 858 F.3d

1
Only the Fifth and Tenth Circuits have not precedentially
analyzed a land use regulation under RLUIPA’s substantial
burden provision. Cf. Grace United Methodist Church v. City
of Cheyenne, 451 F.3d 643, 660–63 (10th Cir. 2006)
(considering only whether the substantial burden provision
encompasses non-fundamental religious activities).

2

996, 1003–04 (6th Cir. 2017); see also Marianist Province of
United States v. City of Kirkwood, 944 F.3d 996, 1001 (8th Cir.
2019) (stating the court was “not swayed” by caselaw from the
prison context because land use plaintiff was “not being forced
to violate its religious beliefs”); Bethel World Outreach
Ministries v. Montgomery Cty. Council, 706 F.3d 548, 555 (4th
Cir. 2013) (rejecting application of substantial burden standard
in prison cases because “the Government lacks comparable
control in the land use context”).

The majority goes further afield, announcing its own
“specific legal rules” for RLUIPA land use cases. Maj. Op. 31.
The majority’s “legal rules” are anything but “specific,” as
evidenced by the majority’s sweeping conclusion that “in all
but the most dire circumstances, a land use regulation that
prevents access to or use of real property for religious exercise
will contravene RLUIPA.” Maj Op. 41. This approach not only
flouts the fact-intensive approach employed by eight circuits
but disregards our obligation to “tak[e] seriously the
requirement that a burden be ‘substantial’” in order to “avoid
an interpretation of RLUIPA that would exempt religious
institutions from all land-use regulations.” Livingston
Christian Schs., 858 F.3d at 1003; see also Roman Cath. Bishop
of Springfield v. City of Springfield, 724 F.3d 78, 96 (1st Cir.
2013) (recognizing that “RLUIPA does not mean that any land
use restriction on a religious organization imposes a substantial
burden—such a conclusion would stretch First Amendment
jurisprudence too far”).

The circuits have warned against a framework like the
majority’s that “effectively would be granting an automatic
exemption to religious organizations” and thus “usurp the role
of local governments” and improperly “favor religious uses
over secular uses.” Andon, LLC v. City of Newport News,
813 F.3d 510, 516 (4th Cir. 2016); see also Petra Presbyterian
Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir.
2007) (cautioning that “the requirement of substantial burden
is taken seriously” to avoid impermissibly “free[ing] religious

3

organizations from zoning restrictions of any kind”). The
majority’s approach also contravenes RLUIPA’s intent as
indicated by its plain language. As the Fourth Circuit has
explained: “By requiring that any substantial burden be
imposed by governmental action and by carefully balancing
individual rights and compelling governmental interests, the
language of RLUIPA demonstrates that Congress did not
intend for RLUIPA to undermine the legitimate role of local
governments in enacting and implementing land use
regulations.” Andon, 813 F.3d at 516.

Unlike the majority, I would follow the approach and
guidance of our sister circuits. The circuits consider two factors
that are particularly apposite here: (1) whether the plaintiff had
a reasonable expectation of religious land use or whether the
plaintiff’s burden was self-imposed; and (2) whether the
plaintiff had ready alternatives.

Under the first factor, it is relevant that Appellants knew the
properties were restricted in usage because “if a religious
institution acquires land knowing that it is subject to certain
restrictions, any burden resulting from those restrictions has
not been imposed by the government; but rather, the burden is
self-imposed.”
2
Alive Church of the Nazarene, Inc. v. Prince

2
Contrary to the majority’s assertion, consideration of a
plaintiff’s conduct derives from RLUIPA’s limits, only
protecting against burdens that are substantial and result from
a “government . . . impos[ing] or implement[ing] a land use
regulation.” 42 U.S.C. § 2000cc(a)(1). To disregard a
plaintiff’s conduct would allow a plaintiff to “state a RLUIPA
substantial burden claim simply by alleging that it received an
adverse land use ruling.” Bethel World, 706 F.3d at 557 n.4.
Nor do I contend, as the majority charges, that RLUIPA has a
“sincerity-of-belief prerequisite.” Maj Op. 32 n.21. The inquiry
is not whether the plaintiff’s religious beliefs were reasonable

4

William Cnty., 59 F.4th 92, 106 (4th Cir. 2023); see also
Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield
Historic Dist. Comm’n, 768 F.3d 183, 196 (2d Cir. 2014)
(instructing district court to consider “whether the Chabad
reasonably believed it would be permitted to undertake its
proposed modifications when it purchased the property”);
Livingston Christian Schs., 858 F.3d at 1004 (recognizing that
when the plaintiff “obtained an interest in land without a
reasonable expectation of being able to use that land for
religious purposes,” it suffered no substantial burden when
land use regulations were enforced); Petra Presbyterian
Church, 489 F.3d at 851 (rejecting substantial burden claim
when plaintiff obtained property in industrial zone to use as a
place of worship despite knowing places of worship were
prohibited).

Upon purchase of the properties, Appellant Shimon
Hellinger knew that he could use the 44 Pierce property only
as an office space and the 239 Pierce property only as a single-
family home. Any changes to these uses without approval from
Appellee Borough of Kingston (the “Borough”) would
“automatically render” the certificates of occupancy for the
properties “null and void.” App. 217–18. Appellants, without
approval, began using 44 Pierce as a yeshiva and gathering
place for their congregation to pray and study together. They
used 239 Pierce to house the yeshiva attendees, housing as
many as ten or eleven students at one time with children as
young as thirteen living at the property. The Borough did not
“alter[] a legitimate, pre-existing expectation that a property
could be obtained for a particular land use,” and, therefore,
Appellants’ hardships are self-imposed burdens. Andon, 813
F.3d at 515.

or sincere, but whether the plaintiff reasonably expected to use
the property for religious purposes.

5

This first factor also considers the plaintiff’s “own actions,”
Livingston Christian Schs., 858 F.3d at 1004, including any
“unwillingness to modify its proposal in order to comply with
applicable zoning requirements,” Thai Meditation Ass’n of
Alabama, Inc. v. City of Mobile, 980 F.3d 821, 832 (11th Cir.
2020). See also St. Paul’s Found. v. Ives, 29 F.4th 32, 42–43
(1st Cir. 2022) (denying substantial burden claim where
plaintiff sought new use for property and was “unwilling to
confirm that the use designation . . . underlying the original
permit still applied”); New Harvest Christian Fellowship v.
City of Salinas, 29 F.4th 596, 602 (9th Cir. 2022) (rejecting
substantial burden claim where religious group “declined to
adopt the City’s proposed modification . . . or otherwise
reconfigure” the space). Over the course of a year, the Borough
sent Hellinger correspondence to schedule property
inspections and to explain the deficiencies in the use of the
properties and the process for addressing these deficiencies.
Hellinger did not respond or take any action to contest the
Borough’s position. Appellants’ dereliction weighs against the
substantial burden claim.

On the second factor, the substantial burden analysis
considers whether Appellants had alternative means of
carrying out their mission. See Marianist Province, 944 F.3d at
1001 (“We agree with other circuits that have concluded
requiring a religious institution to use feasible alternative
locations for religious exercise does not constitute a substantial
burden.”); Edgewood High Sch. of the Sacred Heart, Inc. v.
City of Madison, 95 F.4th 1080, 1088 (7th Cir. 2024)
(reiterating that “the availability of other adequate properties
to host religious activities may defeat a substantial burden
claim”); Chabad Lubavitch, 768 F.3d at 196 (directing district
court to consider “whether feasible alternatives existed for the
Chabad to exercise its faith”); Livingston Christian Schs., 858
F.3d at 1004 (identifying as a “helpful factor[]” whether the
plaintiff had a “feasible alternative location”); New Harvest,
29 F.4th at 604 (concluding that plaintiff’s access to other
locations “militate[s] against a finding of substantial burden”);

6

Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,
1228 (11th Cir. 2004) (holding that religious congregations
were not substantially burdened where they have “the
alternative of applying for a permit to operate only a few blocks
from their current location”). Here, importantly, after the
Borough deemed their properties unsafe for occupancy,
Appellants continued to operate at different locations. Rather
than engaging with the above precedent, the majority dismisses
the importance of alternative locations based on the
unsubstantiated justification that “there are several reasons
why governments may not want real property used for religious
exercise.” Maj. Op. 39.

Applying the proper totality-of-the-circumstances analysis
and weighing the factors other circuits consider would lead me
to affirm the District Court and hold that Appellants are
unlikely to succeed on their RLUIPA substantial burden claim.

***
Separate from the merits, this appeal fails on justiciability
grounds.

First, the majority runs afoul of the prohibition against
opinions “advising what the law would be upon a hypothetical
state of facts.” Chafin v. Chafin, 568 U.S. 165, 172 (2013)
(quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477
(1990)). In February 2026, the Department of Justice (“DOJ”)
and the Borough entered into a consent order requiring the
Borough to amend the 2023 Zoning Ordinance for the express
purpose of complying with RLUIPA. See Consent Order,
United States v. Borough of Kingston, No. 26-cv-00269 (M.D.
Pa. Feb. 6, 2026), Dkt. No. 4. The Borough approved the
zoning amendments on July 7, 2026. These amendments
resolve this case’s RLUIPA claims by permitting places of
worship, religious schools, and religious dormitories as of right
in all commercial districts and permitting such uses by special
exception in all residential districts. As this appeal solely
concerns the denial of injunctive relief, these amendments will

7

moot the appeal. See Lighthouse Inst. for Evangelism, Inc. v.
City of Long Branch, 510 F.3d 253, 260 (3d Cir. 2007)
(dismissing claims for injunctive relief under RLUIPA where
amendment “superseded the Ordinance in all relevant
respects,” and thus “mooted Lighthouse’s claims for injunctive
relief”).

The majority overlooks mootness under the pretense of
voluntary cessation. But our precedent establishes that where
zoning regulations are challenged as invalid, amendments
removing the challenged features moot claims for injunctive
relief; there is no voluntary cessation inquiry in these
scenarios. See id.; CMR D.N. Corp. v. City of Philadelphia,
703 F.3d 612, 628 (3d Cir. 2013) (holding that constitutional
claim regarding zoning ordinance was mooted by rescission of
ordinance’s height restriction). Moreover, it is not evident that
actions in response to a DOJ consent decree are voluntary. See
Env’t Conservation Org. v. City of Dallas, 529 F.3d 519, 528
(5th Cir. 2008) (“Far from voluntary, the City’s compliance . .
. has been compelled by an EPA enforcement action and the
resulting court-approved consent decree.”).

Additionally, the consent decree and ensuing amendments
bring the Borough under the ambit of RLUIPA’s safe harbor
provision, which enables the government to “avoid the
preemptive force” of RLUIPA “by changing the policy or
practice that results in a substantial burden on religious
exercise” or by “any other means that eliminates the substantial
burden.” 42 U.S.C. § 2000cc–3(e); see C.L. for Urb. Believers
v. City of Chicago, 342 F.3d 752, 762 (7th Cir. 2003) (holding
that, under the safe harbor provision, the “amendments to the
[zoning ordinance] render RLUIPA’s nondiscrimination
provision inapplicable”).

Second, the preliminary injunction seeks relief for
Appellants’ as-applied challenges—to reinstate Appellants to
their properties. To have a ripe claim in a land use case, zoning
authorities must have had “an opportunity to ‘arrive[] at a final,

8

definitive position regarding how [they] will apply the
regulations at issue to the particular land in question.’” Sameric
Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582,
597 (3d Cir. 1998) (alteration in original) (quoting Taylor Inv.,
Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1291 (3d Cir. 1993)).

Therefore, we have dismissed as unripe constitutional
claims based upon land use decisions because the plaintiffs
“did not give the locality an opportunity to make a final
determination regarding how to construe the applicable
ordinances and apply them to the particular property.” Id.; see
also Acierno v. Mitchell, 6 F.3d 970, 975–77 (3d Cir. 1993)
(holding constitutional claim premature where owner was
denied building permit but did not appeal the denial or seek a
variance); Taylor, 983 F.2d at 1292–93 (deeming claim unripe
where zoning officer revoked use permit and plaintiffs did not
reapply, appeal, or seek variance). There is no reason why the
same rationale should not apply to land use decisions under
RLUIPA and other circuits have reached the same conclusion
in analogous RLUIPA cases. See Grace Cmty. Church v. Lenox
Twp., 544 F.3d 609, 616 (6th Cir. 2008) (concluding RLUIPA
claims were premature where church made no attempts to
appeal special use permit revocation, complete the factual
record, or engage with zoning authorities); Murphy v. New
Milford Zoning Comm’n, 402 F.3d 342, 352 (2d Cir. 2005)
(deeming RLUIPA claims unripe because plaintiff failed to
seek a variance or appeal zoning commission’s violation notice
regarding prayer meetings held in plaintiff’s residence).

Here, as in the above decisions, Appellants did not engage
in the administrative process or take any efforts to appeal the
Borough’s determinations. Accordingly, we do not know how
the Borough would have actually applied the zoning ordinance.
Because the record is not sufficiently developed, a court cannot

9

properly adjudicate the merits of the as-applied claims that are
the subject of the preliminary injunction
.3

For these reasons, I respectfully dissent.

Counsel for Appellants
Alexander M. Brunelle [Argued]

Counsel for Appellees
David J. MacMain
Stephen G. Rhoads [Argued]

3
Although the majority rejects these concerns because the text
of RLUIPA does not explicitly identify a ripeness requirement,
ripeness is a “prerequisite to all federal actions.” Peachlum v.
City of York, 333 F.3d 429, 433 (3d Cir. 2003) (quoting
Presbytery of N.J. of Orthodox Presbyterian Church v. Florio,
40 F.3d 1454, 1462 (3d Cir. 1994)). Our Circuit has long
upheld the “importance of the finality requirement and our
reluctance to allow the courts to become super land-use boards
of appeals” in land use cases. Sameric, 142 F.3d at 598. The
weight of the RLUIPA caselaw says the same. See Guatay
Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 979
(9th Cir. 2011) (“All of the circuits to address this issue have
applied the final decision requirement to RLUIPA claims . . .
.”).