December 18, 2013

Record RLUIPA Settlement

The Town of Greenburgh has agreed to pay a reported record setting 6.5 million dollars to settle the RLUIPA claims of Fortress Bible Church. The long saga of the claims against the Town of Greenburgh (located in Westchester County, New York), which we have reported at length in this Blog, reached a settlement on December 16 when the Town Board approved the settlement with only 1 million of the 6.5 million dollar settlement covered by insurance.

The case arose out of the request by Fortress Bible for approval to construct a new church on property it acquired in the Town. The Town engaged in a lengthy SEQRA review only to reject the application. Once Fortress Bible brought suit the Town made a number of claims, including that SEQRA was not a land use regulation within the meaning of RLUIPA. After a bench trial, the Town's claims were rejected and the Federal District Court found the Town had, among other things, violated RLUIPA. On appeal to the Second Circuit Court of Appeals, that court, in affirming the District court, stated:

"The Town’s own Planning Commissioner (subsequently replaced by the Town) believed that the alleged environmental impacts did not warrant a positive declaration, but the Town initiated the SEQRA review process anyway after the Church refused to accede to the Town’s demand that it donate a fire truck or provide some other payment in lieu of taxes. The Town then manipulated its SEQRA findings statement to “kill” the project on the basis of zoning concerns despite the fact that there were no serious environmental impacts. We decline to insulate the Town from liability with regard to its decisions on zoning issues simply because it decided them under the rubric of an environmental quality review process."

With a hearing on damages scheduled, the Town and Fortress Bible have now reached a settlement.

Thanks to Nick Ward-Willis of Keane and Beane, who was one of the attorneys representing the Church, for keeping my up to date on the status of this matter over the last several years.

-Steven Silverberg

September 24, 2012

Second Circuit Affirms Finding of RLUIPA Violation

The Second Circuit Court of Appeals affirmed the decision of the U.S. District Court for the Southern District of New York finding that the Town of Greenburgh had violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) in its handling of an application for land use approvals by a church. In Fortress Bible Church v. Feiner (10-3634-cv), the Circuit Court affirmed the District Court which had " ordered broad relief: (1) it annulled the positive declaration and findings statement; (2) it ordered that the Church’s 2000 site plan be deemed approved for SEQRA purposes and enjoined any further SEQRA review; (3) it ordered the Board to grant the Church a waiver from the landscaped parking island requirement; (4) it ordered the Zoning Board to grant a variance permitting a side building location; (5) it ordered the Town to issue a building permit for the 2000 site plan; (6) it enjoined the Town from taking any action that unreasonably interferes with the Church’s project; and (7) it imposed $10,000 in sanctions for spoliation of evidence."

For a detailed discussion of the facts and the District Court's findings see our August 2010 Blog post on that decision.

In its appeal, the Town raised several arguments: "(1) RLUIPA is by its terms inapplicable to the environmental quality review process employed by the Town to reject the proposal, (2) there was insufficient evidence that the defendants had imposed a substantial burden on plaintiffs’ religious exercise under RLUIPA, (3) plaintiffs’ class-of-one Equal Protection claim is not viable because they have not alleged a single comparator similarly situated in all respects, (4) plaintiffs’ Free Exercise rights were not violated, (5) the Town did not violate Article 78, and (6) the district court lacked the authority to order the Town Zoning Board, a non-party, to take any action with regard to the Church."

The Court, in affirming, concluded all of these contentions are "without merit."

Perhaps the most interesting argument was that SEQRA is not a "land use regulation" and therefore does not implicate RLUIPA. However, the Court found that although: "we agree that SEQRA itself is not a zoning or landmarking law for purposes of RLUIPA, we hold that when a government uses a statutory environmental review process as the primary vehicle for making zoning decisions, those decisions constitute the application of a zoning law and are within the purview of RLUIPA."

Noting that no circuit has yet addressed this issue, the Court went on to say:

"We have little difficulty concluding that SEQRA itself is not a zoning law within the meaning of RLUIPA. SEQRA is not concerned with the division of land into zones based on use. It is focused on minimizing the adverse environmental impact of a wide range of discretionary government actions, many of which are totally unrelated to zoning or land use.6 See N.Y. Envtl. Conserv. Law § 8-0105(4). Thus, the Town’s use of the SEQRA process did not automatically implicate RLUIPA. By its terms, however, RLUIPA also applies to “the application of” a zoning law. 42 U.S.C. § 2000cc-5(5). Although SEQRA by itself is not a zoning law, in this case the Town used the SEQRA review process as its vehicle for determining the zoning issues related to the Church’s land use proposal....to hold that RLUIPA is inapplicable to what amounts to zoning actions taken in the context of a statutorily mandated environmental quality review would allow towns to insulate zoning decisions from RLUIPA review. A town could negotiate all of a project’s zoning details during a SEQRA review and completely preempt its normal zoning process. These decisions would then be immune to RLUIPA challenge. We decline to endorse a process that would allow a town to evade RLUIPA by what essentially amounts to a re-characterization of its zoning decisions."

In demonstrating how a bad fact pattern can be fatal to any argument, the Court went on to note:

"The Town’s own Planning Commissioner (subsequently replaced by the Town) believed that the alleged environmental impacts did not warrant a positive declaration, but the Town initiated the SEQRA review process anyway after the Church refused to accede to the Town’s demand that it donate a fire truck or provide some other payment in lieu of taxes. The Town then manipulated its SEQRA findings statement to “kill” the project on the basis of zoning concerns despite the fact that there were no serious environmental impacts. We decline to insulate the Town from liability with regard to its decisions on zoning issues simply because it decided them under the rubric of an environmental quality review process."

In addressing the Town's argument that the SEQRA determination was not a substantial burden on the congregation as a different building could be built on the site, citing its own conclusions in another Westchester RLUPA case, the Court held:

"The record easily supports the district court’s finding that the Town’s actions amounted to a complete denial of the Church’s ability to construct an adequate facility rather than a rejection of a specific building proposal. See Westchester Day Sch., 504 F.3d at 349. Finally, we conclude, as the district court found based upon ample evidence, that the burden on the Church was more than minimal and that there was a close nexus between the Town’s denial of the project and the Church’s inability to construct an adequate facility. Fortress Bible Church, 734 F. Supp. 2d at 501-08. Because, as the district court found, the Town’s stated compelling interests were disingenuous, its actions violated RLUIPA. Id. at 502-05, 508. Our conclusion that the Church was substantially burdened is bolstered by the arbitrary, capricious, and discriminatory nature of the Town’s actions, taken in bad faith. Westchester Day Sch., 504 F.3d at 350-51. The Town attempted to extort from the Church a payment in lieu of taxes, it ignored and then replaced its Planning Commissioner when he advocated on the Church’s behalf, and Town staff intentionally destroyed relevant evidence."

In arguing that the District Court erred in finding that the Town had violated the Church's First Amendment Right to Free Exercise, the Town argued that the court should have applied a rational basis test rather than a strict scrutiny test. The Court declined to set a bright line rule on the applicable test in zoning cases stating instead: " we conclude that on the record before us there was no rational basis for the Town’s actions. The district court’s holding was premised on its finding that the Town had acted in bad faith and disingenuously misused the SEQRA process to block the Church’s project....Accordingly, we conclude that the Town lacked a rational basis for delaying and denying the Church’s project and therefore violated the Church’s Free Exercise rights."

On the Church's Equal Protection argument, the Court noted the need for a "high degree of similarity" when, as here, there is an argument that the Church is a class of one. The Court noted:

"The Church’s use of multiple comparators is unusual, and presents us with a matter of first impression. We conclude, however, that the Church’s evidence of several other projects treated differently with regard to discrete issues is sufficient in this case to support a class-of-one claim. The purpose of requiring sufficient similarity is to make sure that no legitimate factor could explain the disparate treatment....Where, as here, the issues compared are discrete and not cumulative or affected by the character of the project as a whole, multiple comparators are sufficient so long as the issues being compared are so similar that differential treatment with regard to them cannot be explained by anything other than discrimination. We conclude that there is sufficient evidence in the record to support the Church’s class-of-one claim."

The Court went on to analyze the other applications, raised as comparison by the Church, noting in each instance that the Town had allowed development to move forward without addressing one or more of the same issues raised by the Town in its SEQRA review of the Church's project. The Court therefore concluded: "where, as here, a decision is based on several discrete concerns, and a claimant presents evidence that comparators were treated differently with regard to those specific concerns without any plausible explanation for the disparity, such a claim can succeed."

Finally, the Court conclude that the Article 78 relief was properly granted due to the arbitrary nature of the Town's actions and that the injunctive relief was "specifically tailored to the injury the Church had suffered" and was therefore reasonable. The Court declined to address the issue of relief against the non-party Zoning Board of Appeals, because that issue had not been raised below.

-Steven Silverberg

August 16, 2010

Court Finds Westchester Town Violated RLUIPA and Overturns SEQRA Findings

In a 206 page decision, the U.S. District Court for the Southern District of New York found the Town of Greenburgh had violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it refused to grant a church permission to build a new building, for what the court termed “contrived” reasons. In Fortress Bible Church v. Feiner, the Court found, contrary to the claim of the Town, that the State Environmental Quality Review Act (SEQRA) constitutes an individualized assessment of a land use application, that the review falls within the RLUIPA definition of land use regulation as the application of SEQRA “can limit or restrict a claimant’s use or development of land” and that the actions of the Town in issuing findings pursuant to SEQRA, which limited the use of the Church’s property, constitute a “substantial burden” on religious exercise under RLUIPA.

The Court was no doubt brought to this conclusion in large part by its finding that the “majority” of the Town’s witnesses were lacking in credibility. The Court went so far as to find “not only the admitted destruction of probative evidence, but the existence of evidence relevant to the issues before this Court that Defendants never produced to Plaintiffs. Outrageously, Defendants attempted to enter such previously undisclosed documents into evidence during trial.” The Court therefore held “that the conduct of Defendants warrants both an adverse inference based on spoliation of evidence and sanctions.”

The Court reviewed the history of RLUIPA and its purpose to “protect against inter alia ‘subtle forms of discrimination.’” It then went on to note that under RLUIPA, once a plaintiff demonstrates that conduct in implementing a land use regulation imposes a substantial burden upon religious exercise, the burden shifts to the defendant to demonstrate that the burden imposed is “in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.” The Court found that the activities at issue fall within the jurisdiction of RLUIPA noting that a number of courts have held that construction of a church implicates interstate commerce. It further found that since the activities of the church will support missionary efforts that too implicate interstate and international commerce.

In reviewing the record, the Court noted that initially the Town’s then planning commissioner indicated he thought the Town could issue a conditioned negative declaration under SEQRA which would provide for implementation of certain mitigation measures to address traffic concerns. By doing this it would not have been necessary to undertake further environmental review. But during a meeting in July 2000 the Court found that the Town Supervisor said that half the issue was traffic and the other half was the tax exempt status of the Church. The Supervisor then suggested that the Church either donate a fire truck or make some other payment to the Town in lieu of taxes. In fact, the Court noted that the Supervisor testified that the tax exempt status of the Church was “hampering or hindering” the approval. The Court also noted testimony by the then planning commissioner that he was instructed by at least one member of the Town Board to “help stop the project or kill the project” as the council person did not want another church in the Town. The Church refused to make a “donation” to the Town.

Thereafter, the Town Board, as lead agency under SEQRA, issued a positive declaration requiring the preparation of a Draft Environmental Impact Statement (DEIS), although the Court found that it was not warranted as the Church had “mitigated all identified potential adverse impacts.”

“The Court finds that the Town used the SEQRA process and the issuance of a Positive Declaration punitively because of the Church’s refusal to make a significant donation of value or monetary payment to the Town because of certain Town Board members’ desire to delay the project and increase the expense of the SEQRA process for the Church.”

The Court then went through a review of the lengthy SEQRA process which included the Town’s firing and hiring multiple consultants, the fees charged for the review by the multiple consultants and the Town’s decision to take over the preparation of the FEIS after it had been started by the Church. As for the FEIS prepared by the Town, the Court stated the “FEIS written by the Town is replete with errors, gratuitous comments and revisions intended to cast the project in the worst light possible.” Subsequently, the Town Board adopted a SEQRA findings statement which the Court also found to be unsupported by the record.

In concluding that the facilities at issue will be devoted to religious purposes, the court found that the facilities will either be devoted to religious practice and education “or are inextricably integrated with the Church’s ability to provide religious education and practice…” Then in determining that the actions of the Town constitute a substantial burden on religious practice, the Court rejected the claims by the Town that the Church could have addressed the concerns of the Town and ultimately received approval of a scaled back project. First, the Court noted that the Church had already agreed to every mitigation measure proposed by the Town and that the Town’s own findings statement concluded “no mitigation is possible.” But the Court went on to note:

“While the Town’s past treatment of the Church’s application strongly suggests that the
Town would not act in good faith in considering a modified proposal, the Court need look no
further than the admissions of Town Board members themselves to be certain that the Town would not act in good faith….Given the overwhelming evidence of Defendants’ intentional delay, hostility, and bias toward the Church’s application, the Court finds that any purported willingness by the Town Board to consider a modified proposal is insincere. Under such circumstances, the Church is not required to file a modified application and the Court finds that the Church’s religious exercise was substantially burdened by the Town’s arbitrary and unlawful denial of its application.”

In analyzing the effect of the denial, the Court noted that the Plaintiff has the burden of proving that there is a substantial burden by demonstrating that the actions denying the construction of the church building were arbitrary and capricious and there is no readily available alternative. The Court held that the Church had demonstrated a nexus between the denial and its religious exercise through testimony which proved that the Church currently lacks adequate facilities and the inability to construct the new building interferes with its religious practices. The Court held that the actions of the Town in issuing the SEQRA findings lacked validity and concluded that neither the use of the Church’s current facilities nor a further application to the Town provided a “satisfactory alternative.” The Court further held that even were the Town willing to give fair consideration to another proposal the time and expense that would be incurred are not “quick, reliable and financially feasible.”

Next the Court turned to what constitutes a compelling government interest in the context of RLUIPA, noting that the Supreme Court has held that such interests are those which “protect public health, safety and welfare.” The Town had argued that the proposed project implicated compelling government interest because (1) it impacted traffic, (2) provided inadequate parking, (3) violated the Town’s steep slope ordinance, (4) created retaining walls that were a public nuisance, (5) impacts police and fire resources and (6) “created concerns among the project’s neighbors.”

In a detailed analysis of each of these “interests” the Court concluded: “this Court finds that Defendants have not demonstrated any compelling governmental interests sufficient to justify the Town’s denial of the Church’s SEQRA application. To the contrary, the evidence presented at trial established that Defendants’ purported concerns were contrived for the sole purpose of rationalizing the Town’s denial of the SEQRA application.”

After determining that the Church had established a substantial burden and the Town had failed to demonstrate a compelling government interest the Court declined to address the other RLUIPA claims raised by the Church. The Court also addressed the constitutional issues raised by the Town and concluded that the application of RLUIPA is constitutional under the commerce clause because of the impact on interstate commerce. The Court rejected the other constitutional claims of the Town based upon the holding in the Westchester Day School case decided by the Second Circuit after the trial of this case.

On the issue of liability pursuant to 42 USC 1983 the Court held:

(1) The Town Board and the members of the Town Board are liable in their official capacity; and
(2) It considered the claims of individual liability against the Supervisor to be withdrawn

The Court also concluded that the Plaintiffs First Amendment Free Exercise rights were violated and that other similarly situated applicants were treated differently without rational justification, thus demonstrating a violation of Plaintiffs’ Fourteenth Amendment right to equal protection. The Court also found equivalent violations of the New York Constitution.

In fashioning relief, the Court annulled the positive declaration and SEQRA findings statement and ordered that the site plan be processed without further SEQRA review. The Court further ordered that all approvals be granted within sixty days (site plan, variances etc.) with reasonable and customary conditions and that within ninety days a building permit shall be issued. Defendants were enjoined from taking any action “that unreasonably delays or interferes with any of the foregoing directives.”

The Court did however conclude that RLUIPA is ambiguous on the issue of whether relief can include damages and therefore concluded there can be no monetary damages under RLUIPA. However, it did conclude that there are compensatory damages available under 42 U.S.C. 1983 and instructed Plaintiffs to submit information on increased construction costs, attorneys’ fees, consultants’ fees and other potential compensatory damages. Finally, the Court sanctioned the Defendants $10,000 for their discovery violations.

Thank you to Nick Ward-Willis, Esq., one of the attorneys representing the Plaintiffs, for bringing this decision to our attention.

-Steven Silverberg


May 23, 2010

Circuit Court Finds Boulder County Violated RLUIPA

Last week the Tenth Circuit Court of Appeals found a RLUIPA violation based upon a denial of a special permit to expand a church. In Rocky Mountain Christian Church v. Board of County Commissioners of Boulder County Colorado the Circuit Court overturned the denial of a special permit application to significantly expand an existing church on the grounds that (1) the Church (RMCC) was not treated on equal terms with other applicants, (2) a substantial burden had been placed on the Church and (3) unreasonable limitations were placed upon the Church's proposed expansion.

Significantly, the County had a long standing comprehensive plan which sought to maintain the rural character of the County. The legislation which implemented the comprehensive plan required a special permit for any project with an occupancy of 100 or more people in an Agricultural District. The criteria for the special permit had both objective (height requirements) and subjective (compatibility) criteria. The proposed application met the threshold requirements for a special permit and ultimately sought "a 28,000 square foot gymnasium, a 6,500 square foot chapel, expanding the school building by 57,500 square feet, gallery space connecting the buildings,and an expansion of the main worship building’s seating capacity by 150 seats." The review by the County staff found compliance with the objective criteria but also found the project to be "incompatible with the surrounding area, an over-intensive use of the land, likely to cause undue traffic congestion, and likely detrimental to the welfare of the residents of Boulder County."

The Circuit Court found that the staff had modified its methodology for determining if a proposal was over-intensive. The usual criteria was based upon a calculation of whether the expansion resulted in 50% or more of the property being covered by buildings and parking. The Court noted, in this case the coverage was only 35%, yet there was a determination by staff that the proposal was "over-intensive." However, rather than using the coverage criteria, County staff determined the proposal was over-intensive because it doubled the church's square footage and significantly increased parking. In reciting the facts, the Circuit Court made a point of noting that one of the Commissioners greeted a consultant for the Church privately before the public hearing stating "you can bring in your Christians now." The final decision permitted the 150 seat expansion and 10,000 square foot building to replace the modular building but denied the balance of the application.

The Church sued under RLUIPA. A jury found for the Church on the substantial burden, equal terms and unreasonable limitations claims but failed to award any damages. The District Court then issued a permanent injunction directing issuance of the special permit.

The County appealed the decision, including the injunction and further argued that if the Court found the substantial burden provisions of RLUIPA had been violated that the law should be declared unconstitutional both on its face and as applied in this case.

On the issue of equal terms the County argued that evidence of a similar application of the Dawson School, which was approved, was not really a similar application. The Court however found that while the projects were not identical "the many substantial similarities allow for a reasonable jury to conclude that RMCC and Dawson School were similarly situated." The County argued in the alternative that it had an affirmative defense that "a generally applicable law that is rationally related to a legitimate governmental interest cannot violate the equal terms provision." The Court rejected that defense in this case and found: "evidence at trial was sufficient to demonstrate the County applied the zoning ordinance non-neutrally. As noted above, the Church was treated less favorably than Dawson School, a similarly situated comparator. Further, there was evidence the County singled out the Church for adverse treatment in “processing” and “determining” its application. For example, the County applied a less advantageous method to calculate whether the Church’s proposed use was over-intensive, and treated the Church’s application as a new application, even though it was an existing use. .... As a result, if an affirmative defense to the equal terms provision exists, only a strict scrutiny defense would apply here. The County has not argued that it should enjoy a strict scrutiny defense to the equal terms provision, and thus the argument is waived."

The Court then went on to review evidence as to whether the County placed unreasonable limitations on religious uses. Included in the evidence was information about other religious groups that either had been discouraged to not apply or, in one case, a group that ran out of money during the review process. The Court also found evidence of "disparate treatment" of the Church in the application process and concluded that there was adequate evidence to support the jury's verdict. The Court went on to decline to address the substantial burden issue in view of its findings upholding the determination on the basis of equal terms and unreasonable limitations.

The Court also found that the County had not adequately preserved its constitutional challenges on the issues of equal terms and unreasonable limitations. Therefore, the Court held it was not necessary to address the constitutional challenge to the substantial burden provisions of the statute, finding instead that the "district court based the permanent injunction on all three RLUIPA counts. Because the jury’s verdicts on the equal terms and unreasonable limitations claims are sufficient to support the injunction, we do not address the constitutionality of RLUIPA’s substantial burden provision."

Finally, the Court concluded that the permanent injunction granting the entire application was not overly broad. This is rather interesting because the proposal by the Church was based upon a projection of potential needs over the next twenty years and the County argued it was therefore not necessary to approve the entire application. Yet, the Court concluded that not granting the relief would require the Church to address its expansion in a "piecemeal fashion."

-Steven Silverberg

January 1, 2010

Seventh Circuit Decides Two Substantial Burden Claims Under RLUIPA

In a decision addressing two separate claims of substantial burden under the Religious Land Use and Institutionalized Persons Act (RLUIPA) the Seventh Circuit Court of Appeals reached two different conclusions as to the effects of municipal actions on religious groups. In World Outreach Center v. City of Chicago and Trinity Evangelical Lutheran Church v. City of Peoria, the court held that World Outreach Center had been substantially burdened but that Trinity Evangelical Church had not.

In the World Outreach case the district court had dismissed the action. The building at issue contains mainly recreational and living quarters with some space for religious service. However, the circuit court found that the building's uses were all in furtherance of the religious mission of the organization. Before being purchased the building had been operated as a YMCA for many years and included renting out 168 single room occupancy (SRO) units. During the 80 years of operation by the YMCA the City never required a special permit. Rather the building's use was considered legal nonconforming as it was legal when established and subsequent changes in zoning regulations requiring a special permit for such use did not change its status. Under the Chicago zoning code the legal nonconforming status runs with the land and is not changed by changes in ownership.

However, World Outreach was required to apply for a license to operate the SRO units and the City took the position that it would not issue the SRO licenses without World Outreach first obtaining a special permit. This was despite the fact that the YMCA was issued SRO licenses without being required to apply for the special permit, even after the zoning was changed to require a special permit for the use.

At the instigation of an alderman who was seeking to help a developer acquire the property, the City then rezoned the property to a district which did not even permit SRO as a special permit use. The City continued to insist that a special permit was needed and brought a suit claiming the special permit was required but could not be issued due to the new zoning. The City then voluntarily discontinued the lawsuit but continued, without giving a reason, to deny the SRO license. When Hurricane Katrina struck FEMA contracted to rent 150 of the rooms for a year but the City continued to refuse the SRO licenses.

In April, 2006 World Outreach commenced this action and in August, 2006, without requiring the special permit, the City issued the SRO licenses. The court noted "World Outreach was impeded in its religious mission of providing living facilities to homeless and other needy people and incurred substantial legal expenses as well. It seeks damages, having abandoned its claim for injunctive relief when the City finally issued the SRO license that it had applied for two years earlier."

While the district court dismissed the action on what is essentially as exhaustion of administrative remedies ground-failure to seek the special permit from the zoning board- the circuit court points out the futility of such an application under all of the circumstances and disposes of that argument. Instead the circuit court held the "burden imposed on a small religious organization catering to the poor was substantial (for burden is relative to the weakness of the burdened) ...and there was no possible justification for it."

Interestingly, the court found that the discrimination against World Outreach was not motivated by religious views but rather an attempt by a Chicago alderman to help a developer, who supported the alderman, to acquire the property. The court found that anyone, irrespective of religion would have been discriminated against because of the intent to aid the developer to acquire the site. Yet, the court still held that the equal protection clause is also implicated stating "a deliberate, irrational discrimination, even if it is against one person (or other entity) rather than a group, is actionable under the equal protection clause. . ...That is one of the claims that World Outreach alleges; the claim is supported by the allegations of the complaint; and so it should not have been dismissed. It has nothing to do with religion, but so what?"

The second case, decided as part of the same decision, involves a RLUIPA claim by Trinity Evangelical Lutheran Church against the City of Peoria regarding a parcel the church purchased next to its existing church. A neighborhood group later applied to the City to have the building on the adjacent property designated a landmark. The landmark designation was granted. When the church sought to demolish the building to build a new center it was denied permission, due to the landmark status.

The Church brought a RLUIPA action claiming a substantial burden, The district court granted summary judgment to the City. The circuit court noted that the issue of substantial burden is a factual question "substantiality is a relative term—whether a given burden is substantial depends on its magnitude in relation to the needs and resources of the religious organization in question."

The court then went on to affirm the dismissal noting that the burden on the church is modest not substantial. The court found that the burden would only be substantial if the church had no alternative. But, in this case there is a market for the property and the church can sell the property and use the proceeds to construct its center on other property owned by the church. The court went on to note that the City conceded that the center could be built on the empty lot owned by the church and the court went on to state:

"We imagine that the real purpose of this litigation is to extract a commitment from the City to allow Trinity to build the family-life center on the empty lot, and so viewed the suit has succeeded."

-Steven Silverberg

January 15, 2008

Village Settles RLUIPA Case With Westchester Day School

After a five year struggle in the Courts, the Village of Mamaroneck settled the RLUIPA claim of the Westchester Day School by agreeing to pay 4.75 million dollars in three installments. After the Village lost in the Second Circuit Court of Appeals this law firm was brought in to handle the case and evaluate the claim by the Day School for an estimated 22 million dollars in damages, including over three million dollars in attorneys fees. The Village Board voted last night to settle the case and approval of the settlement by the Day School Board is expected later this week. See our earlier Blogs about the decisions in the case under the topic heading RLUIPA.

For what others think about the case and the settlement see: http://harringtononline.blogspot.com/

December 17, 2007

Steven Silverberg Interviewed Concerning RLUIPA

Our partner, Steven Silverberg was quoted extensively today in a Westchester Business Journal Article concerning the Religious Land Use and Institutionalized Persons Act (RLUIPA) which can be read at http://www.westchestercountybusiness.com/archive/121707/1217070004.php4. Citing the large number of cases that have been brought against municipalities the article notes: “I think it’s gotten out of balance at this point,” Silverberg said. “There should be a way to provide balance, to protect religious groups but not give them a bludgeon to beat municipalities into submission.”

October 17, 2007

Second Circuit Rules RLUIPA Applies to Westchester Day School

In a significant decision regarding the application and interpretation of the Religious Land Use and Institutionalized Persons Act (RLUIPA) the Second Circuit Court of Appeals today affirmed the Southern District (Connor, J.) in finding that the Zoning Board of Appeals of the Village of Mamaroneck violated RLUIPA by denying a special permit to the Westchester Day School (see our March 6, 2006 Blog on the earlier decision).

The School is a Jewish day school which has been in existence for 60 years and applied for a modification of its special permit in order to construct a new classroom building. In upholding the District Court the Second Circuit, which had avoided ruling on the constitutionality of RLUIPA previously, held that the statute is constitutional.

In response to the argument that RLUIPA violates the Establishment Clause the Court held: “RLUIPA cannot be said to advance religion simply by requiring that states not discriminate against or among religious institutions.” The Court further found that RLUIPA was properly applied under the authority of the Commerce Clause as the 44,000 square foot nine million dollar building proposed to be constructed by the School implicated interstate commerce. The Court noted that even if the impact upon interstate commerce is minimal it is sufficient to meet that jurisdictional element.

The Court also held that the Tenth Amendment is not violated as RLUIPA does not compel states to take a particular action and they may still enact their own land use regulations. Finally, the Court declined to reach the issue of the application of the Fourteenth Amendment or the State causes of action.

The full text of the decision can be found at:
http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTE0NjQtY3Zfb3BuLnBkZg==/06-1464-cv_opn.pdf#xml=http://10.213.23.

June 26, 2006

Court Declines to Apply RLUIPA But Upholds Religious Organization’s Use of Lot Zoned for Conference and Training Facilities

New York’s highest court declined to apply the Religious Land Use and Institutionalized Persons Act (RLUIPA) in finding a religious institution’s use of a lot zoned for “conference and training facilities” is permitted under local zoning. In Town of Mount Pleasant v. Legion of Christ, Inc., the Town appealed an Appellate Division decision, which held that the Legion’s use complied with the Town’s Code, and that the Town’s interpretation of the Code as prohibiting the Legion’s use violated RLUIPA. The Court of Appeals affirmed the holding that the Legion’s use is permitted by the Town’s Code, but did not reach the RLUIPA claim.

The Town argued that because the Legion offered a two-year course of study, rather than shorter-term courses as the lot’s previous owner had, the Legion’s use of the parcel is more accurately described as a college or seminary than as a conference and training center. The Court rejected the Town’s argument, reasoning that the Code does not specify a time limit for visitors to the lot. The Court noted that the Code prohibits “hotel or restaurant” use, but reasoned that this indicates that the town seeks to prohibit shorter-term, rather than longer-term guests.

Further, the Court held that it did not have to decide RLUIPA questions raised in the lower court because the action was instituted before RLUIPA was enacted and the issue of whether the Legion’s use was permissible under the Town’s Code did not require a determination under RLUIPA.

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 (http://www.thejournalnews.com/apps/pbcs.dll/article?AID=/20060331/NEWS02/603310336/1018) 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.

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.

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 http://www.thejournalnews.com/apps/pbcs.dll/article?AID=/20060304/NEWS02/603040340/1026/NEWS10. 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.

January 9, 2006

Village of Suffern Sued Under RLUIPA

The Village of Suffern New York has been sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA) by an Orthodox Jewish group that maintains a home for Orthodox Jews visiting relatives and friends at nearby Good Samaritan Hospital. The group, which was denied a use variance, has received several violations for activities that are not conforming to the single family residence zone. The property is used to house Orthodox Jews, whose religious observance does not permit them to drive on the Sabbath, so that they may stay overnight and walk to the hospital in order to visit the sick. The group complains that the Village’s actions substantially interfere with their religious exercise, which commands them to visit the sick but also not to drive on the Sabbath.

December 2, 2005

When Does RLUIPA Prevent Review of Land Use Applications?

The Appellate Division of the State Supreme Court ruled this summer that the Legion of Christ, Inc., a religious organization that operates a private college, must comply with local zoning. The court held the Religious Land Use and Institutionialized Persons Act (RLUIPA) was not violated by requiring a religious organization, operating a private college, to follow the same land use application process as a secular organization.

This is similar to the issues being raised in the case presently being heard in the United States District Court for the Southern District of New York involving the Westchester Day School and the Village of Mamaroneck. The non-jury trial revolves around an application that has been pending for approximately four years to allow for the expansion of a day school operated by a religious group. The group claims that the failure to approve the expansion of the school substantially effects religious practice. The Village claims that the school seeks to enlarge in order to deliver secular classes and that these secular activities are not protected by RLUIPA.

Whatever the outcome the matter is likely to find its way to a higher court.