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Liberty Institute/Congregation Toras Chaim Brief

Liberty Institute/Congregation Toras Chaim Brief

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Published by Eric Nicholson
THe LIberty Institute argues against a temporary injunction that would shut down a living room synagogue in Far North Dallas.
THe LIberty Institute argues against a temporary injunction that would shut down a living room synagogue in Far North Dallas.

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Published by: Eric Nicholson on Apr 10, 2014
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06/30/2014

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CAUSE NO.
 429-04998-2013
-00IN THE MATTER OFDAVID R. SCHNEIDER,Plaintiff,vs.JUDITH D. GOTHELF, MARK B. GOTHELF,AND CONGREGATION TORAS CHAIM,INC.Defendants,andHIGHLANDS OF McKAMY IV andV COMMUNITY IMPROVEMENTASSOCIATION,Intervening Plaintiff,vs.JUDITH D. GOTHELF andMARK B GOTHELF,Defendants.§§§§§§§§§§§§§§§§§§§§§§§§§§§§IN THE DISTRICT COURTOF COLLIN COUNTY, TEXAS429
th
JUDICIAL DISTRICTDEFENDANTS’ OPPOSITION TO INTERVENOR HIGHLANDS OF McKAMY IV AND V COMMUNITY IMPROVEMENTASSOCIATION’S REQUEST FOR A TEMPORARY INJUNCTION
Filed: 4/7/2014 11:10:58 PM
 Andrea S. Thompson
District Clerk
Collin County, Texas
By Deborah Hill Deputy
 
D
EFENDANTS
O
PPOSITION TO
T
EMPORARY
I
NJUNCTION
 Page 2Without any supporting briefing, Intervenor Highlands of McKamy IV and VCommunity Improvement Association (“Intervenor” or “HOA”) asks this Court for a temporaryinjunction that would effectively end community religious practice for approximately 30 familiesof Orthodox Jews in far North Dallas. Since February 2011, with the HOA’s knowledge, the prayer and study activities of the Congregation Toras Chaim (the “Congregation”)
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have taken place primarily at two homes in the housing development over which the HOA has authority: theHighlands of McKamy IV and V (the “Highlands of McKamy”). From February 2011 untilAugust 4, 2013, the Congregation’s activities took place primarily at the home of its rabbi at7119 Bremerton Court, and since August 4, 2013, the same activities have taken place primarilyat 7103 Mumford Court, the home owned by Defendants Judith D. Gothelf and Mark B. Gothelf.The HOA has long known about these activities but did not oppose them until October 14, 2013.The sole purpose of a temporary injunction is to preserve the status quo. For this reasonalone, the Court should deny the HOA’s request for a temporary injunction because the statusquo is the Congregation carrying out its activities in homes within the Highlands of McKamy.Indeed, it has done so for over three years.The HOA’s request for a temporary injunction should also be denied because, fomultiple, independent reasons, it cannot show that it has a probable right to recover on its claimfor breach of the restrictive covenants:
 There has been no breach of the residential use covenant: 7103 MumfordCourt is used as a residence, and the Congregation’s activities there areconsistent with and incidental to the use of the home as a single familyresidence.
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The Congregation is not a proper Defendant in this case; it is not, nor ever has been, a home owner in theHighlands of McKamy. The Congregation therefore cannot be bound by the restrictive covenants at issue in thiscase. It has filed a no-evidence motion for summary judgment that is set for a hearing the same day as thetemporary injunction hearing.
 
D
EFENDANTS
O
PPOSITION TO
T
EMPORARY
I
NJUNCTION
 Page 3
 The HOA has waived its right to enforce the residential use restriction becauseit has not attempted to prevent other non-residential uses of homes within theHighlands of McKamy.
 The doctrine of laches bars the HOA’s claims because the HOA hasunreasonably delayed in challenging the Congregation’s activities, and theCongregation relied on the HOA’s non-opposition to its detriment.
 Interpreting the restrictive covenants to prevent the Congregation’s religiousactivities would violate the Texas Religious Freedom Restoration Act and theReligious Land Use and Institutionalized Persons Act because, among other reasons, it would place a substantial burden on the Congregation’s members’religious practice.For all of these reasons, Intervenor cannot prove a probable right to recover on its breach of therestrictive covenants claim.Finally, the balancing of the equities required for imposing a temporary injunctionweighs heavily against awarding injunctive relief here. The harm from issuing the HOA’s proposed injunction is severe and irreparable: the end of community religious practice for 30families of Orthodox Jews. And this harm is far worse than the claimed impact theCongregation’s activities have on the neighborhood: at most, three cars are parked in front of 7103 Mumford Court for its activities. The Court should thus deny the HOA’s request for atemporary injunction.
FACTUAL BACKGROUND
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The Congregation is a small community of Orthodox Jews in far North Dallas that has been in existence since 2007. There is only one other congregation of Orthodox Jews in theentire Dallas Fort Worth area that shares its particular outlook on the spiritual life: the Ohr HaTorah Shul, which is located approximately seven miles south of the Highlands of McKamy.While a member of the Ohr HaTorah Shul, Rabbi Yaakov Rich discovered that several families
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All of the facts in this opposition brief can be established by live testimony at the temporary injunction hearing if the Court permits witnesses to testify.

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