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

| August 19, 2010

ground zero construction islam mosque

They'll have a front-row seat to Islam, too. (Antonio Rosario)

Marian Wang

ProPublica, Yesterday, 2:58 p.m.

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

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

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

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

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

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

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

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

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

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28 Responses for “Experts: Argue All You Want, Mosque Project Is on Firm Legal Ground”

  1. Billy says:

    Why is it still referenced as a “Mosque”? Let’s set the record straight. Isn’t it an Islamic Cultural Center, that will contain a prayer room, not a mosque? Much like the YMCA or a Jewish Community Center? Which is open to people of all faiths by the way.

  2. some guy says:

    I think the headline gets it wrong as it seems to me that is have never been about th legality of the “right” to build this muslim thing. It has been about is this spot right for such a thing??? In the name of respect and tolorance the muslims should find another place not so close. JMO

  3. devrie says:

    Some guy, equating Muslims to the attack of the WTC is stereotyping an entire religion based on the act of a group of radicals. We don’t keep churches away from certain organizations because a few groups of radiacl Christians bomb abortion clinics.

    Muslim Americans died during 9/11. Christians don’t own the devestation that happened during 9/11. Many people of different religions died that day. That’s America.

    Let us NOT set some sort of precedent where the government can intervene with ANY of our religious rights.

  4. Some guy says:

    At no point have I made the claim ALL muslims are part of what was done not to “Christians” but to AMERICA on 9/11. Nor have I said I want Government NOT to let this be done. Also to call them a group of radicals is not enuf. We must call themwhat they are muslim terrorist who belive that all should live and be what is their view of islam. If we can not say who a terrorist is or why they do what they do we will never be able to defend against or eliminate them. Do you think this was the only site in lower manhattan???

  5. Anita says:

    “In the name of respect and tolorance the muslims should find another place not so close.”

    And what will you say to those Muslim American families of the Muslim American victims of 9-11?

  6. some guy says:

    I would say the same to them as I always have. I am sorry for your loss.

  7. some guy says:

    On your second poit we did not have muslim Americans, Christian Americans, jewish Americans, or whatever “type” of Americans you woul call them to me they all where just AMERICANS. To the ones who did, planed,and paid for it they KILLED just plain old AMERICANS. And what did they all have in common could it have been their “religion” all muslims.

  8. devrie says:

    I guess I’m just trying to say that it isn’t fair to isolate Muslims (Islam is the second largest religion in the world) for an attack that occurd by a secular group that uses the religion for its own political aspirations.

    There must be a distinction made between Islam and Al Qaeda. Islam is not inherently evil, nor should we tolerate those who are biased against them. What many Muslims believe is not very different then what most Christians believe:

    So to say, “At no point have I made the claim ALL muslims are part of what was done not to “Christians” but to AMERICA on 9/11,” means you understand that Muslims are not the problem.

    It seems easy to put a group of people in a box with some people who’s values are obviously not good for the rest.

    Since the Muslims that want a Mosque are “Americans,” and we are concerned about what happend to “Americans,” then why not let them have a place of worship near Ground Zero? There’s a Catholic Church withing approximately the same distance from Ground Zero.

  9. kmedley says:

    I think John Stewart summed up the argument quite nicely, “Yes we can…. but should we”.

  10. Pierre Tristam says:

    kmedley, I take it you’re not implying that Stewart is on the side of those who’d prefer to see the Islamic Center built far from ground zero, are you? He’s made his thinking known pretty strongly against those who’d prevent the project from going forward where it’s planned. The clips are here.

  11. William says:

    So the idiocy continues unabated. Some questions suggest themselves:

    1. Why has there been no outrage at the fact there is a Mosque (not a community center) inside the Pentagon? Is this not also “Hallowed Ground” where 184 Americans lost their lives?

    2. Where is the rightous indignation from the pious, sanctimonious “Christians” (who, by the way are showing just how unlike Christ they really are) regarding the strip clubs, sex shops, and bars on this same plot of “Hallowed Ground”?

    3. If the Rev. Phelps and his radical band, who practice an inacurate and extremist version of Christianity can retain their 1st Amendment rights and not be seen as representative of mainstream christianity, why should the people of Islam who do not practice an inacurate and extremist version of Islam be required to surrender their 1st Amendment rights at the whim of the mob?

    The entire ugly episode, and the people whose heads are exploding over this (non)issue were taken to task by The Rude Pundit, who makes the point far more eloquently than I could:

    “If you’re not one of the crass politicians seeking to exploit the simpletons for your gain or a ratings-whore on Fox, you are a vile, hate-filled, unprincipled lump of shit who think that rights are only good when convenient for you, and you are too fucking lazy to fight for anything other than your prejudice and hatred.”

    “They hate us for our Freedoms!”

    Yeah, right.

  12. Bob K says:

    Why is it that when a few Catholic priests commit horrible acts on children, and a few higher ups cover it up, (and don’t get me wrong; IT”S WRONG,) the left jumps on the opportunity to convict the ENTIRE religion? Nowhere in the Bible does it advocate molesting children, and nowhere in Catholic and other Christian doctrines does it advocate it. However, when the Koran quite clearly advocates killing, taxing, and enslaving non-Muslims, and SOME Muslims actually carry these acts out, they are considered extremists, and the religion is given a complete pass?

    There is no “mosque” inside the Pentagon. There is a chapel where all religions are allowed to worship, including Muslims.

  13. starfyre says:

    that religion sucks

  14. William says:

    So we’re comparing the systematic nature of pedophilia among Catholic Priests to the actions of some radicalized Muslim extremists, and using this “argument” to slam the left for their condemnation (I must have missed that one, as I recall condemnation came from all corners) as well as condemn an entire religion for the actions of “SOME Muslims”. The entire argument is duplicitous on the face of it, the Apples and Oranges comparison of intellectual laziness, but let’s explore a little farther.

    I have not read the entire Quran, just skimmed over a couple of Sufis. Haven’t read the whole bible either. What I found was a striking similarity of message, as well as some of the same names. Adam. Noah. Moses. Jesus Christ. Yes, that one. You know, the one who wandered the lands of Palestine spreading the word of tolerance, inclusion, dignity, etc. You with me so far? OK.

    As I said, I’m certainly no expert on the Quran, but I do have several friends and acquaintances who are presently fasting in observance of Ramadan. When our conversations turn to current events, these folks express great dismay at the killing and hatred, which is always followed by the exclamation “how can Muslims do this to (fill in the blank here, as practically all denominations have shared this spot).” I’m not sure which Quran Bob K might be referring to, but it clearly is not the one these people adhere to. These same people identify themselves as devout mainstream Muslims.

    Where the Quran is regarded by the faithful as the true word of God, the Bible is more of a construct by committee, as directed by the emperor Constantine in the 4th century AD. The Quran speaks well of its relationship with the Gospel and Torah, and in practice, when the trade routes were opened there was intelligent and respectful discussion with Jews and Christians. This did not sit well with the Catholic Church, who loosed the Spanish Army on the region with a “convert or kill” mandate. Having stirred the proverbial Hornet’s nest, it then became necessary to deploy the Knights Templar to the region in order to protect the traveling Christians. It can be, and has been argued that our troubles in the region are as a direct result of the Crusades. My point here is that even a cursory examination of history shows the Roman Catholic Church to have a whole lot of blood on their hands. The “Big Priest, little boys” issue is merely the latest chapter in a story of depravity in the name of God. And yet, I don’t condemn them.

    Every religious movement has its charlatans and extremists who twist and turn the words to suit their own agenda. The Christian faith has the Westboro Baptist Church. Many Catholics and theologians consider Opus Dei a radical sect within Catholicism. Zionism has demonstrated its ideological differences with Orthodox Judaism. It is therefore logical to conclude that extremism exists within Islam as well. Considering that we are having this discussion in the first place exposes the lie that “the religion is given a complete pass.” If we are to paint with so broad a brush as to condemn and marginalize an entire religion based on the actions of a tiny minority, should we then not use the same brush on the other religions as well? After all, Dr. Tiller was killed in church, by a Christian.

    I stand corrected on the Pentagon Mosque issue, as the 2007 Washington Post piece I used as reference has been (correctly) taken to task. Aside from being willing to admit when I’m mistaken, I see a lesson here, that a place of worship can be shared equally without prejudice if we allow ourselves to be generous enough to respect human dignity. Sadly, the finger pointing, misinformation, mendacity, and the politicising of an issue that is clearly not political makes it virtually impossible to engage in reasoned discourse, with a corrupted mainstream media fanning the flames of hysteria, focused on the Missionary zeal of “ratings” as they pertain to monies charged per advertising second.

    starfyre says: “that religion sucks”

    I rest my case.

  15. Bob K says:

    William, I have not read the entire Koran either, but it is obvious to a “lazy” guy like me that it
    EXPLICITLY advocates the killing, taxiing, and enslavement of non-Muslims. I’m not going to quote it again here, but read my posts under other threads on this topic. I would be very interested to hear your Muslim friends take on some of those quotes. Chapter 9 seems particularly suspect. And once again, we can’t change history, and I’m more concerned about the present day and future. We can actually do something about that.

  16. Bob K says:

    “where the Quoran is regarded by the faithful as the true word of God.”

    If you will read the Quoran, you will realize just why so many are concerned, my friend.

  17. William says:

    I am not religious, and have no intention of arguing chapter and verse to establish whose invisible sky wizard really has the juice. I am only arguing that people have the right to worship (or not) as their faith moves them, as long as it is not destructive. I agree that our focus must be on the present and future, but it is difficult to see a bright future considering our present is dominated by fear, prejudice, hatred, and divisiveness spewed by an agitated, uninformed mob.

    Yesterday’s bright, shiny thing was those awful illegal immigrants. Today it is the location of a community center proposed by people of a major, acknowledged religion. No telling what next week’s news cycle will bring. What irritates me most about this “narrative” is the fact that it diverts the attention of the Plebes from the truly pressing issues of the day. How many people lost their jobs today? How many families lost their home today? How many of our fellow human beings suffered the indignity of medical issues with nowhere to turn today? How many American children went hungry today?

    Unless and until this “Christian” nation of ours shows compassion and empathy to our fellow travelers, why should I give a fuck about where someone wants to build a community center which in no way alters the stranglehold of our elite?

    The most sensible quote I’ve heard on the matter is: “There will be peace when the last politician is strangled by the entrails of the last priest.”

  18. Bob K says:

    My whole point is that the mob may not be as uninformed as you may think.

  19. William says:

    My whole point is that the mob is as uninformed, uneducated, indifferent, and distracted as I fear. And stupid. Did I mention stupid?

  20. Merrill says:

    This issue provides ample proof that (sadly) bigotry is alive and well in our country. None of those who oppose the Islamic Center at the suggested location have mentioned the Pussycat Lounge at 59 Murray Street, a strip joint as close to ground zero as the proposed Islamic Center. Why do you think that is? Would you guess that the strippers are in keeping with the sacred nature of this neighborhood while an Islamic Center desecrates the area?

  21. some guy says:

    I think the “why” of no one is saying that a strip club can not be where it is,is two fold. One it already is/was in that spot and second how many of the ones who did,planed,or gave financial or other suport to 9/11 where stripers??? Again for the ones who can or will not see . The point is NOT can Muslims build there it is SHOULD they. Build it a little more than just over 560 feet away build it not in line of site of where the trade center was build it not on a spot that was hit by parts of one plane. I say build ot but not in this spot YES they have every “right” to do so and I would defend that “right” but that is not what it is about to the people who do not want it in this spot. It is about showing some respect for the victoms the utter devistation that was done there to people,familys,NYC,and AMERICA as awhole all that is being asked is for some understanding and tillorance and find some other spot.

  22. William says:

    Find some other spot. Yeah, right.

    “Existing or proposed American mosques hundreds and even thousands of miles from ground zero, from Tennessee to Wisconsin to California, are now under siege.”

    It is not the spot of the community center that is the real issue here, it is how easily the mob has been brought to full-on Islamophobic hysteria by the likes of Pam Geller and her soulless ilk. It is the misdirection of the mob’s anger for cynical gain, and away from the true cause of the mob’s anger, having been fucked over by Wall Street, the mega-banks, and the corporate holy grail of maximized short-term profits.

    All this while our men and women in uniform are fighting and dying in Muslim lands. Winning hearts and minds.

    Wonder how this is all being perceived in the foreign media, especially outlets such as Al-Jazeera. Have we become so arrogant that we no longer care if we scream our own hypocrisy, at full throat, to the rest of the planet?

  23. William says:

    BTW, for my friends on the right who still fastidiously hold the “official” account of 9/11 as gospel, this article in Pat Buchanan’s “American Conservative” magazine might be of particular interest to you.

  24. some guy says:

    realy mosques under seige in America realy????

  25. Devrie says:

    I agree with William when he notes the remarkable similarities between Islam and Christianity. Leaving behind the bombed abortion clinics (The group Army of God), the Bible itself is very similar to the Quran in some of its messages.

    1. The Bible encourages us to spread Christianity world-wide.
    1.a. My daughter has been going to a Bible group called, “The Good News Club,” who’s sole mission is to evangelize young children, preferably ones whose families do not attend church, into Christianity.

    2. The Bible says that women cannot get divorces, and if they do, they can never remarry.

    3. The Bible forbids women to wear “men’s clothing,” which is why some Christian women only wear skirts.

    4. The Bible says women must remain silent in the church and remain submissive.

    5. The Bible says to stone women who are found not to be virgins at the time of her union with her husband.

    6. The Bible asks a father of a rebellious son to take him to the elders to be stoned to death as evil must be purged among us.

    7. The Bible has instructions for wiping out non-believers: Deuteronomy 7, 1-5

    “When the LORD your God brings you into the land you are entering to possess and drives out before you many nations — the Hittites, Girgashites, Amorites, Canaanites, Perizzites, Hivites and Jebusites, seven nations larger and stronger than you — 2 and when the LORD your God has delivered them over to you and you have defeated them, then you must destroy them totally. Make no treaty with them, and show them no mercy.

    Now, of course, we can say there are misinterpretations as to what these Bible verses meant and who they were directed toward; however, we cannot discount the number of Christian sects who’ve adhered to the notion that women are second to men, Etc. It’s the radicals who misuse or narrowly interpret the Bible in ways that scare others. Isn’t that true of Islam as well?

    Check out these website: (compares Christianity with Islam). A site devoted to all things Islam.

  26. William says:

    “Those who can convince you to believe in absurdities can convince you to commit atrocities.” – Voltaire

    “If a logical argument falls in a forest of deaf ears, will Glenn Beck’s head still explode?” – William

    Thanks for the links Devrie ;-)

  27. Boris says:

    Why aren’t conservative boycotting Fox News, Prince Alwaleed (an evil Muslim) is their second largest stakeholder, now that’s funny.

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