Posted On: March 31, 2006

Mamaroneck to Appeal RLUIPA Decision

The Village of Mamaroneck has indicated that it will be appealing the recent decision of the United States District Court, which found that the Village had violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it denied an application to expand the Westchester Day School (see our March 8, 2006 post for a summary of the decision). As reported in the media ( the Day School has indicated it will be seeking five million dollars in damages, including attorney fees. The Village has reportedly spent more than eight hundred thousand dollars on its attorneys. The next step will be the Second Circuit Court of Appeals which has already seen the case once before. Previously, the Circuit Court reversed a finding in favor of the Day School declaring that the District Court should have conducted a trial before finding for the Day School. The recent decision was made after trial.

Posted On: March 25, 2006

Freedom of Information Law Continues to be an Issue in New York

It has been a year since amendments to the State Freedom of Information Law required that government agencies in New York provide a specific date by which records shall be provided to the public. Under the amendment to the Public Officers Law, if records cannot be provided within twenty business days, the party requesting the records must be given a date by which the records shall be provided. But as noted in the popular media ( lack of responsiveness by government agencies continues to be an ongoing issue.

One solution that has passed the New York State Assembly and is pending in the Senate is to give some teeth to the penalty for failure to comply with the law by making it easier to recover attorney fees by those who successfully sue to obtain public information ( Under the present law a court must find that the records sought were of interest to the general public. Under the proposed law fees shall be awarded if the court finds there was no reasonable basis for denying access to the records regardless of the nature of the records. Apparently the hope is that this will encourage government agencies to be more responsive and less arbitrary in delaying and denying access to public records.

Posted On: March 18, 2006

Court Rejects SEQRA Negative Declararion

On March 14, 2006 the Appellate Division Second Department rejected the issuance of a Negative Declaration under SEQRA in the case Matter of Avy v. Town of Amenia. In upholding the findings of the State Supreme Court, the Appellate Division found that by approving an amendment to the local zoning ordinance, which would have allowed an automobile repair service on a lot previously zoned residential, the Amenia Town Board, as lead agency, failed to take the required “hard look” at all the potentially significant environmental impacts.

Despite the fact that the Town Board spent about a year and a half “reviewing” this proposal the Court noted that the EAF for the project identified fourteen areas of potentially large impacts including removal of 1.65 acres of vegetation, 3000 cubic yards of material, storm water runoff, odors, noise and endangered flora and fauna. While the Board held public hearings it never required more than a revised Environmental Assessment Form (EAF). The Court found the Board failed to adequately address the potential impacts on a vital aquifer, the removal of substantial vegetation and the potential impacts upon endangered flora and fauna.

In the past courts have held that an EAF can provide sufficient information to allow a negative declaration in some circumstances. Yet, the clear message here is that, when there are multiple areas of potentially large impacts, it is safer to spend a year and a half preparing and reviewing an environmental impact statement than spending a year and a half trying to avoid preparing one. At the end of the day, the requirement of a “hard look” at environmental impacts before issuing a negative declaration is still the rule.

Posted On: March 6, 2006

Summary of Westchester Day School RLUIPA Decision

In applying RLUIPA to the decision by the Village of Mamaroneck Zoning Board of Appeals that denied a special permit to the Westchester Day School, the District Court responded to criticism contained in an earlier decision by the Second Circuit Court of Appeals which remanded the District Court’s finding of an RLUIPA violation. Judge Connor found that the Zoning Board not only violated RLUIPA but violated the long standing rule under New York Law favoring both religious and educational uses.

Finding that the denial of the special permit substantially burdened the religious exercise of the Day School, the Court noted that under RLUIPA once there is a substantial burden on religious exercise the burden of proof shifts to the Zoning Board to demonstrate that the denial was in furtherance of a compelling state interest. The Court found that the Zoning Board had based its denial on claims of potential adverse impacts on traffic, parking, local property values and aesthetics. However, the Court determined that the traffic concerns were based upon the lay opinion of members of the Board and particularly the chair who admitted during trial that he had misunderstood several significant portions of the study. The Court repeatedly pointed out that the Board’s own traffic experts had not questioned the traffic study submitted by the school. As to parking it was pointed out by the Court that the School had actually reduced the number of parking spaces based upon recommendations by the Village and could have provided additional spaces if needed. The Court questioned the conclusions regarding property values and aesthetics and determined that even if such impacts existed they did not rise to a compelling state interest, which is required to defeat a RLUIPA claim.

The Second Circuit had remanded the original decision of the District Court on a motion for summary judgment finding that there were questions of fact and also suggesting that the District Court’s application of RLUIPA might be over broad. Therefore the decision was rendered after a seven day bench trial. Apparently in an effort to give the Second Circuit a basis for upholding its decision, even if the Second Circuit questioned the application of RLUIPA, the Court pointed out that New York case law favors both educational and religious uses. It therefore found that under New York Law the Day School qualified for consideration of the recognized beneficial effects as either a religious or an educational use and the Zoning Board had failed to establish a basis for denying the special permit use. It also noted that New York Law favors accommodating such uses and the record demonstrated that even were there concerns with respect to the application the Zoning Board could have approved the application with appropriate mitigating conditions.

Posted On: March 4, 2006

RLUIPA Applied in Westchester Day School Case

The long awaited decision in the case of the Westchester Day School v.The Village of Mamaroneck Zoning Board of Appeals has been issued by Judge Connor of the U.S. District Court of the Southern District of New York. In a 160 page decision Judge Connor found that the Zoning Board had placed a substantial burden on religious exercise by placing restrictions on the enlargement of the school facilities.

The case is reported in the media at Counsel to the Village has already expressed an intention to appeal. We will have further comment on the decision, after we have had an opportunity to study the entire decision.