New York Zoning and Municipal Law Blog
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.