Congregation Rabbinical College of Tartikov, Inc. et al v. Village of Pomona et al
Filing
207
OPINION & ORDER: The Court grants summary judgment to Defendants as to Plaintiffs' Free Speech and corresponding Article 1, § 8 New York Constitution claims, and the Court grants summary judgment to Plaintiffs on Defendants' affirm ative defenses noted herein. The Court denies summary judgment to all Parties as to all other claims, grants Plaintiffs' Motion for Sanctions, and grants Defendants' Motion to Strike in part. The Clerk of the Court is respectfully directed to terminate the pending motions. (Dkt. Nos. 137, 140, 195.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/29/2015) (lnl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CONGREGATION RABBINICAL COLLEGE
OF TARTIKOV, INC., RABBI MORDECHAI
BABAD, RABBI WOLF BRIEF, RABBI HERMEN
KAHANA, RABBI MEIR MARGULIS, RABBI
AKIVA POLLACK, RABBI MEILECH MENCZER,
RABBI JOSEPH HERSHKOWITZ, RABBI CHAIM
ROSENBERG, and RABBI DAVID A. MENCZER,
Plaintiffs,
-v-
Case No. 07-CV-6304 (KMK)
OPINION & ORDER
VILLAGE OF POMONA, BOARD OF TRUSTEES
OF THE VILLAGE OF POMONA, NICHOLAS
SANDERSON, as Mayor, IAN BANKS, as Trustee,
ALMA SANDERS-ROMAN, as Trustee, RITA
LOUIE, as Trustee, and BRETT YAGEL, as Trustee,
Defendants.
Appearances:
Paul Savad, Esq.
Joseph Allan Churgin, Esq.
Susan E. Cooper, Esq.
Savad, Churgin
Nanuet, New York
Counsel for Plaintiffs
Roman P. Storzer, Esq.
Storzer & Greene, P.L.L.C.
Washington, D.C.
Counsel for Plaintiffs
Donna Corby Sobel, Esq.
Furgang & Adwar, L.L.P.
West Nyack, NY
Counsel for Plaintiffs
John George Stepanovich, Esq.
Lentz, Stepanovich & Bergethon, P.L.C.
Virginia Beach, Virginia
Counsel for Plaintiffs
Robert Leo Greene, Esq.
Law Office of Robert L. Greene
New York, NY
Counsel for Plaintiffs
Andrea Donovan Napp, Esq.
Amanda E. Gordon, Esq.
James A. Wade, Esq.
Robinson & Cole LLP
Hartford, CT
Counsel for Defendants
John Francis Xavier Peloso, Jr., Esq.
Robinson & Cole LLP
Stamford, CT
Counsel for Defendants
Joseph L. Clasen, Esq.
Robinson & Cole LLP
New York, NY
Counsel for Defendants
Marci A. Hamilton, Esq.
The Law Office of Marci Hamilton
Washington Crossing, PA
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiffs bring challenges to certain zoning and environmental ordinances enacted by
Defendant Village of Pomona (the “Village”), alleging they are unlawful under the First and
Fourteenth Amendments of the United States Constitution, the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., the Fair Housing
Act (“FHA”), 42 U.S.C. § 3601 et seq., New York Civil Rights Law § 40-c(1) and (2), §§ 3, 8, 9
and 11 of the New York State Constitution, and New York common law. Specifically, Plaintiffs
2
challenge the enactment and enforcement of portions of the Village of Pomona, New York Code
(“Village Code”) §§ 130–4 (defining educational institutions and dormitories) (“Accreditation
Law”), 130-10(F)(12) (limiting the size of dormitories) (together with the definition of
“dormitory” in § 130–4, the “Dormitory Law”), and 126 (establishing wetlands protections)
(“Wetlands Law”) (together, the “Challenged Laws”).1 Plaintiffs move for Summary Judgment
on several of their claims and Defendants’ affirmative defenses, and for sanctions due to the
spoliation of evidence. Defendants cross-move for Summary Judgment on all of Plaintiffs’
claims, and for certain evidence to be stricken from the record. For the reasons discussed below,
the Court grants summary judgment to Defendants on Plaintiffs’ Free Speech and New York
Common law claims, grants summary judgment to Plaintiffs on Defendants’ affirmative
defenses, denies summary judgment to all Parties as to all other claims, grants Plaintiffs’ Motion
for Sanctions as discussed below, and grants Defendants’ Motion to Strike in part.
I. Background
The Court assumes familiarity with the basic allegations of Plaintiffs’ Second Amended
Complaint, (Second Am. Compl. (“SAC”) (Dkt. No. 27)), as discussed in the Court’s January 7,
2013 Opinion and Order, (Dkt. No. 53.) See Congregation Rabbinical Coll. of Tartikov, Inc. v.
Vill. of Pomona, 915 F. Supp. 2d 574, 607 (S.D.N.Y. 2013) (“2013 Opinion and Order”). In
short, Plaintiffs bring this Action alleging that the Challenged Laws prohibit the owning,
holding, building, and operation of a rabbinical college within the Village (the “Village”). (SAC
1
Full versions of the Challenged Laws can be found attached to the Ulman Affidavit.
(Dkt. No. 145.) They can also be found online at http://www.ecode360.com/12718511
(Wetlands Law) and http://www.ecode360.com/12718574 (Accreditation Law and Dormitory
Law).
3
¶ 1.) While Plaintiffs specifically claim that the Challenged Laws prohibit Plaintiff
Congregation Rabbinical College of Tartikov (the “Congregation”) from building its planned
rabbinical college on a 100-acre tract (the “Subject Property”) located in the Village and owned
by the Congregation, the Court dismissed Plaintiffs’ as-applied challenges, as well as their New
York Civil Rights Law § 40–c claim, in its 2013 Opinion and Order. Congregation Tartikov,
915 F. Supp. 2d at 607. It is for this reason that Plaintiffs now proceed based solely on facial
challenges to the Challenged Laws. The Court briefly reviews the salient factual background
below.
A. Factual Background2
1. The Parties
Plaintiffs are a corporation and individuals affiliated with the Orthodox Jewish
community, including various sects of the Hasidic community, all of whom allege an interest in
the construction of a rabbinical college on the Subject Property. (Pls.’ Rule 56.1 Statement of
Material Facts in Supp. of Pls.’ Mot. for Summ. J. (“Pls.’ 56.1”) ¶¶ 1, 88, 90, 92, 94–95, 97, 525
(Dkt. No. 139).) The Congregation, officially “the Rabbinical College of Tartikov, Inc.,” the
owner of the Subject Property, is a religious corporation that was formed on August 1, 2004. (Id.
¶¶ 1, 69–70, 101; Defs.’ Response Pursuant to Local Rule 56.1(b) to Pls.’ Statement of Material
Facts (“Defs.’ Counter 56.1”) ¶ 121 (Dkt. No. 175) (citing Aff. of Amanda E. Gordon (“Gordon
Aff.”) Ex. 18 (Certificate of Incorporation) (Dkt. No. 150); see also Defs.’ Local Rule 56.1(a)
Statement in Supp. of their Mot. for Summ. J. (“Defs.’ 56.1) ¶ 5 (Dkt. No. 142).) At the time of
The following facts are derived from undisputed portions of the Parties’ Rule 56.1
Statements, unless otherwise noted. The Court has reviewed the evidence offered in support of
certain disputed statements, as noted, where applicable, below.
4
2
incorporation, the Congregation’s trustees included Chaim Babad (“C. Babad”), who indirectly
financed the Congregation at least in part, Abraham Halberstam, Naftali Babad, Samuel
Chimmel, Michael Tauber (“Tauber”), and Asher Mandel. (Defs.’ 56.1 ¶¶ 6, 10; Pls.’ Opp’n to
Defs.’ Local Rule 56.1 Statement of Facts (“Pls.’ Counter 56.1”) ¶ 6 (Dkt. No. 176) (citing
Gordon Aff. Ex. 18).) Plaintiffs Rabbi Mordechai Babad (“M. Babad”), Rabbi Wolf Brief (“W.
Brief”), Rabbi Hermen Kahana (“H. Kahana”), Rabbi Meir Margulis (“M. Margulis”), Rabbi
Akiva Pollack (“A. Pollack”), Rabbi Meilech Menczer (“M. Menczer”), Rabbi Jacob
Hershkowitz (“J. Hershkowitz”), Rabbi Chaim Rosenberg (“C. Rosenbenberg”), and Rabbi
David A. Menczer (“D. Menczer”) (collectively, the “Individual Plaintiffs”) are rabbis who seek
to live, teach, and/or study at the Congregation’s proposed rabbinical college. (Defs.’ 56.1 ¶ 14;
see also Pls.’ 56.1 ¶¶ 88, 90, 92, 94–95, 97.) Defendants consist of the Village, its Board of
Trustees, its current Mayor Brett Yagel (“Mayor Yagel”), its former mayor and Trustee Nicholas
Sanderson (“Former Mayor Sanderson”), and other members of its Board of Trustees—Ian
Banks (“Banks”), Alma Sanders Roman (“Roman”), and Rita Louie (“Louie”)—each sued in his
or her official capacity. (Defs.’ 56.1 ¶¶ 1, 3–4.)
2. Rabbinical Colleges
According to Orthodox Jewish belief, Orthodox Jews are not permitted to resolve
conflicts in the secular court system, but rather must have their conflicts adjudicated in rabbinical
courts, before rabbinical judges applying Jewish law. (Pls.’ 56.1 ¶¶ 49, 52.) For this reason,
Orthodox Jews require rabbinical courts sufficiently proximate to their homes. (See id. ¶ 51.)
However, there are very few rabbinical judges, and very few rabbinical courts, in the United
States today, and those courts are overburdened. (See id. ¶¶ 50–51, 59–61.)
5
In response to this growing need, the Congregation’s proposed rabbinical college would
enroll students, at no charge, who have completed a “high school level program in the Talmud”
and who are deemed qualified by M. Babad, some of whom have already received offers of
admission. (Id. ¶¶ 550, 552–53, 555, 558; Defs.’ Counter 56.1 ¶ 555 (citing Decl. of Paul Savad
in Supp. of Pls.’ Mot. for Summ. J. (“Savad Decl.”) Ex. 29 (M. Babad Tr.) 133 (Dkt. No. 155));
Defs.’ 56.1 ¶ 51). The rabbinical college would therefore have no entrance examination, written
examination, or written criteria for admission. (Pls.’ 56.1 ¶ 551; Defs.’ 56.1 ¶¶ 37, 39–40.) For
13 to 15 years, between 6:00 a.m. and 10:30 p.m. on Sunday through Thursday and in study
sessions on Friday and Saturday, the students would study the four books, or “divisions,” of the
Shulchan Aruch, a compellation of Jewish laws of the Orthodox Hasidic tradition. (See Pls.’
56.1 ¶¶ 36–37, 65–66, 68, 528, 531, 537.) Of central importance here, Plaintiffs “believe that
Jewish men are religiously obligated to marry at a young age and have large families,” (id. ¶ 38),
that “Judaism . . . directs [them] to dwell among a community that is directed to the Torah,” (id.
¶ 44), and that “Jewish males [must] . . . learn the Torah day and night,” (id. ¶ 46). Accordingly,
Plaintiffs believe that students of the proposed rabbinical college must live, study, and pray in
the same place, full-time, in a “Torah Community” separated from the outside world, which in
turn requires that their education be free and that multi-family housing be available such that
students can live with their families. (Id. ¶¶ 71–74; 450 (citing, inter alia, Decl. of Meilech
Menczer ¶ 55 (Dkt. No. 147), 499 (citing, inter alia, Savad Decl. Ex. 27 (M. Tauber Tr.) 84),
539–540, 559, 562.) The proposed rabbinical college would therefore include “somewhere
between 50 and 250 units of housing, which will be apartments that have 3 or 4 bedrooms,
ranging in size from 1800-2000 square feet.” (Defs.’ 56.1 ¶ 44.) The rabbinical college would
6
also include at least four rabbinical courtrooms, ritual baths (“mikvahs”), synagogues, and
multiple libraries. (Pls.’ 56.1 ¶¶ 513, 518.)3
While there are three other schools that currently train rabbinical judges in the area,
namely Kollel Belz and Mechon L' Horoya near Monsey, NY and Kollel Beth Yechiel Mechil of
Tartikov in Brooklyn, NY, the Congregation’s proposed rabbinical college is the only one that
offers an immersive Torah Community, which enables the college to train full-time rabbinical
judges. (See id. ¶¶ 565, (citing, inter alia, Savad Ex. 34 (Steven Resnicoff Dep. Tr.) 19–22),
568–71; Defs.’ Counter 56.1 ¶ 570–71.) Plaintiffs also contend that Kollel Belz and Mechon
L’Horoya “only teach certain sections of the Shulchan Aruch,” that Kollel Beth Yechiel Mechil
of Tartikov “does not have the same program” as the proposed rabbinical college, and that none
of the three schools has on-campus housing essential to “the Torah Community environment that
Plaintiffs believe” is necessary for the course of study to be offered and “essential to [the]
exercise their religious belief[s].” (See Pls.’ 56.1 ¶¶ 563, 568–571; Pls.’ Counter 56.1 ¶¶ 55,
58.)4
Beyond the Torah Community being part of Plaintiffs’ “religious belief,” (Pls.’ 56.1 ¶
539), Plaintiffs allege a variety of benefits attendant to studying in a Torah Community,
including the ability to study day and night, to isolate oneself from outside influences, and to
study all four books of the Shulchan Aruch. (See, e.g., Pls.’ 56.1 ¶¶ 449–457, 459–469, 473,
529–30, 655; Defs.’ 56.1 ¶ 49.) Defendants dispute the necessity of a Torah community, as well
as the purported need for libraries and mikvahs on campus. (Defs.’ Counter 56.1 ¶¶ 449–457,
459–469, 473, 516, 520; Defs.’ 56.1 ¶ 46.)
3
4
Kollell Beth Yechiel Mechil of Tartikov also has no synagogue, libraries, or mikvah on
campus. (Defs.’ 56.1 ¶¶ 62–64.) Moreover, J. Hershkowitz and C. Rosenberg aver that their
studies at Kollel Belz “will not allow [them] to become a full-time rabbinical judge[s]” because
they cannot “learn the entire four categories of Jewish Law” at Kollel Belz. (Decl. of Jacob
Hershkowitz ¶¶ 42, 44 (Dkt. No. 146); Decl. of Chaim Rosenberg ¶¶ 44–46 (Dkt. No. 149).)
It is not clear from the record how different the programs at these other schools are from
the putative rabbinical college in this case. Tauber, for example, characterized Mechon
7
As of the date of this Opinion and Order, the Congregation has not yet provided a formal
plan for, or submitted an application to the Village seeking to construct, their proposed rabbinical
college; only a “preliminary concept plan” exists. (Defs.’ 56.1 ¶¶ 19, 22; Pls.’ Counter 56.1 ¶
22.) Additionally, the proposed curriculum at this point consists only of a document prepared at
Tauber’s request (he thought that his “‘counsel wanted to see [the curriculum] in writing,’”) by
M. Menczer, which only includes class names and “reflects the religious source of the studies,”
namely the four “divisions” of the Shulchan Aruch. (Defs.’ 56.1 ¶¶ 26–28; Gordon Aff. Ex. 10
(M. Tauber Dep. Tr.) 22–23 (explaining that M. Tauber asked M. Menczer to prepare the
curriculum, and that there is no other document describing “what a specialized kollel” is);
Gordon Aff. Ex. 21 (proposed curriculum).) Additionally, the Congregation has not hired any
teachers, the would-be dean has done “[n]othing” thus far, and the Congregation does not yet
know how many students will attend the rabbinical college. (Defs.’ 56.1 ¶¶ 34–35 (citing
Gordon Aff. Ex. 2 (M. Babad Depo.) 83), 66.)
3. Chronology of the Challenged Laws
The Village, incorporated in 1967, adopted a master plan in 1974 which it updated in
1997 “to maintain the low density residential character of the Village” in response to rapid
growth. (Defs.’ 56.1 ¶¶ 1, 73–76 (internal quotation marks omitted) (quoting Aff. of Doris
Ulman (“Ulman Aff.”) Ex. 17 (1997 Master Plan Update) 17 (Dkt. No. 145).) Around the same
L’Horoya Kollel Beth Yechiel Mechil of Tartikov as providing “the same course of study” as
that of the proposed rabbinical college and noted that a student at Kollel Beth Yechiel Mechil of
Tartikov can “get the same studies done” as a student at the proposed rabbinical college. (Savad
Decl. Ex. 27 (Tauber Dep. Tr.) 44, 46.)
8
time, in May 1996, the Village Attorney, then Ruben Ortenberg, advised residents to contact the
Town of Ramapo to object to the expansion of an Orthodox Hasidic school, whose development
the Village had challenged in court and had been “involved [with] for two years” at the time.
(See Pls.’ 56.1 ¶ 376; Savad Decl. Ex. 187 (May 20, 1996 Board of Trustees meeting minutes), at
7–8.)
At a December 1999 Village Planning Board meeting, Yeshiva Spring Valley, in an
“informal appearance,” laid out plans to build a Yeshiva on the Subject Property. (Id. ¶ 121;
Defs.’ Counter 56.1 ¶ 121.)5 That same month, the Village’s planning consultant, Mark A.
Haley (“Haley”), reviewed the zoning provisions of the Village Code “in conjunction with”
Yeshiva Spring Valley’s appearance. (Defs.’ 56.1 ¶ 92.) Subsequently, in January 2000, he
circulated a memorandum entitled “Proposed Primary School and Pre-School ([Yeshiva Spring
Valley] Pomona) and the Village Zoning Regulations regarding schools,” noting the existence of
only “scant” regulations on schools and recommending that the Village amend the pertinent
laws. (Pls.’ 56.1 ¶ 123; Defs.’ 56.1 ¶ 94; Pls.’ Counter 56.1 ¶ 94 (citing Ulman Aff. Ex. 28
(memorandum)).) Haley and the Village Attorney subsequently drafted Local Law 1 of 2001
and “included many of the recommendations from the January[] 2000 memos by the Village
Planner.” (Pls.’ 56.1 ¶ 124.)6
5
Yeshiva Spring Valley had been granted tax exempt status that year, and in subsequent
years through 2003. (Pls.’ 56.1 ¶ 324; Defs’ Counter 56.1 ¶ 324.)
Yeshiva Spring Valley only filed a formal application for a “25-lot single-family
residential development,” together with a Yeshiva, in June 2001. (Defs.’ 56.1 ¶ 104.) It
subsequently failed to submit an environmental study required for a New York State
Environmental Equality Review Act determination. (Id.)
6
It bears noting that there were no schools in the Village at the time. (See Pls.’ 56.1 ¶
129.)
9
On January 22, 2001, following a public hearing, the Board of Trustees adopted Local
Law 1 of 2001. (Defs.’ 56.1 ¶¶ 96, 98.) Local Law 1, in relevant part, defined educational
institution, for the first time, as “[a]ny school or other organization or institution conducting a
regularly scheduled comprehensive curriculum of academic and/or alternative vocational
instruction similar to that furnished by kindergartens, primary[,] or second schools and operating
under the Education Law of New York State, and duly licensed by the State of New York,” and
subjected such institutions to certain restrictions under the special permit approval process,
including minimum net lot area, maximum development intensity, frontage, access, set back,
parking, and noise guidelines. Local Law 1 of 2001, as codified at Village Code §§ 130-4, 130–
10. (See also Defs.’ 56.1 ¶¶ 88–90; Ulman Aff. Exs. 1 (Local Law 1 of 2001), 7 (Village Code §
130-4), 10 (Village Code § 130-10).)
In March of the same year, then-Mayor Herbert Marshall (“Mayor Marshall”)
emphasized in a letter that nothing could be done to prevent the construction of a group home
facility in the Village and that it “must be treated no different[ly] than any other residences or
planned residences within the community” because residents “simply do not have the right to
choose who [their] neighbors will be.” (Savad Decl. Ex. 184 (Open Letter from Mayor Marshall
(March 5, 2001).) Additionally, in May 2002, all but one Village Trustee expressed no objection
to the concept of Barr Laboratories’ constructing an office building with parking in the Village.
(Savad Decl. Ex. 176 (May 21, 2002 Board of Trustees meeting minutes) 3.)
Starting in 2003, Village Attorney Doris Ulman (“Ulman”), who was appointed in July of
that year, “began to review the Village laws” and recommended that further amendments be
10
made due to “deficiencies or inaccuracies in the laws.” (Defs.’ 56.1 ¶ 106–07.)7 That same year,
at a February 17, 2003 Board of Trustees Meeting, the Board of Trustees determined not to
weigh in on a neighboring municipality’s open space proposal because it “could not tell another
municipality how to spend [its] money or what to do with [its] property.” (Savad Decl. Ex. 188
(Feb. 17, 2003 Board of Trustees meeting minutes) 4.)
Subsequently, on August 17, 2004, the same year in which the Village denied Yeshiva
Spring Valley tax exempt status for the first time, (Pls.’ 56.1 ¶ 324), the Congregation purchased
the Subject Property from Yeshiva Spring Valley, (Defs.’ 56.1 ¶ 17.)8 The Subject Property is a
100-acre parcel located in the Village at the intersection of Route 202 and Route 306, and zoned,
like the rest of the Village, as an R-40 district (40,000 square feet per lot for the development of
single-family homes), (id. ¶¶ 4, 99.) It is the only property that the Congregation owns, (Pls.’
56.1 ¶ 106 (citing Savad Ex. Ex. 31 (C. Babad Dep. Tr.) 76–78)), and appears to be the only
available parcel suitable for Plaintiffs’ proposed rabbinical college under Village law, (id. ¶ 616
(citing Decl. of Barbara B. Beall (“Beall Decl.”) ¶ 16 (Dkt. No. 153)).) In June of that same
7
In the interim, namely from December 2002 through 2004, the Parties dispute whether
the Board of Trustees actively supported the incorporation of Ladentown, which Plaintiffs
contend was a response to the proposed development of adult student housing for the Orthodox
Hasidic Jewish community at a site called Patrick Farms, (see Pls.’ 56.1 ¶¶ 136, 313, 368–72;
Defs.’ Counter 56.1 ¶¶ 136, 313, 368–72), though the Parties agree that Ulman “performed free
legal work for the appeal regarding the efforts to incorporate Ladentown,” (Pls.’ 56.1 ¶ 373.)
8
The Parties dispute the exact day on which the Subject Property was purchased in
August. Plaintiffs’ claim it was purchased on August 4, 2004, (Pls.’ 56.1 ¶ 101), while
Defendants contend it was purchased on August 17, 2004, (Defs.’ Counter 56.1 ¶ 101 (citing
Savad Decl. Ex. 291).) Plaintiffs admit their error in their Counter Rule 56.1 Statement. (Pls.’
Counter 56.1 ¶ 17.)
Additionally, while the Village denied Yeshiva Spring Valley tax exempt status in 2004,
the local Humane Society did receive a tax exemption despite not having “timely filed its
application for exemption.” (Pls.’ 56.1 ¶ 380.)
11
year, the Village filed suit to challenge the Town of Ramapo’s Adult Student Housing Law
(“ASHL”). (Pls.’ 56.1 ¶¶ 138, 360.)9
On September 7, 2004, Ulman presented the Board of Trustees with her
recommendations for amendments to the zoning law pertaining to educational institutions, which
addressed removing the half-acre-per-student lot area requirement, adding a provision allowing
dormitories, clarifying the definition of educational institution, and removing the requirement
that educational institutions be on a state or county road. (Defs.’ 56.1 ¶¶ 110, 112; Pls.’ Counter
56.1 ¶ 113.) Subsequently, on September 27, 2004, following a public hearing, the Board of
Trustees adopted Local Law 5 of 2004, (Defs.’ 56.1 ¶¶ 114, 116), which, in relevant part, redefined “educational institution” as “[a]ny private or religious elementary, junior high or high
school, college, graduate[,] or post-graduate school conducting a full-time curriculum of
instruction . . . accredited by the New York State Education Department or similar recognized
accrediting agency,” and amended the minimum lot area, frontage, access, setback, and
screening guidelines, Local Law 5 of 2004, as codified at Village Code § 130-4. (See also Defs’
56.1 ¶¶ 105, 122; Ulman Aff. Exs. 2 (Local Law 5 of 2004), 7 (Village Code § 130–4).)
Local Law 5 also addressed dormitories, providing that “[a] dormitory is permitted as an
accessory use to an educational use and that there shall be not more than one dormitory building
on a lot,” Local Law 5 of 2004, as codified at Village Code § 130-10(F)(12). (See also Defs.’
56.1 ¶ 117; Ulman Aff. Exs. 2, 10). It further defined a dormitory as “a building . . . [which
The Adult Student Housing Law “permits married, adult, student, multi-family, highdensity housing in single-family residential zones . . . in the unincorporated portion of Ramapo.”
Vill. of Chestnut Ridge v. Town of Ramapo, No. 07-CV-9278, 2008 WL 4525753, at *1
(S.D.N.Y. Sept. 30, 2008).
12
9
contains] sleeping quarters for administrative staff, faculty[,] or students,” and provided that
“[d]ormitory rooms shall not contain separate cooking, dining[,] or housekeeping facilities
except that one dwelling unit with completed housekeeping facilities may be provided for a use
of a Superintendent or supervisory staff for every fifty dormitory rooms.” Local Law 5 of 2004,
as codified at Village Code § 130–4. (See also Ulman Aff. Exs. 2, 10.) Local Law 5 also
explicitly provided that “[s]ingle-family, two-family, and/or multi-family dwelling units other
than as described above shall not be considered to be dormitories or part of dormitories.” Local
Law 5 of 2004, as codified at Village Code § 130–4. (See also Defs.’ 56.1 ¶ 118; Ulman Aff.
Exs. 2, 10.)
The Village learned that the Congregation had purchased the subject property, and, in
general, that it would be used as a rabbinical college in November 2004. (Pls.’ 56.1 ¶¶ 148–49;
Defs.’ 56.1 ¶ 17.)10 The Village subsequently, in late 2005 or 2006, learned of the
Congregation’s actual development plans for the Subject Property. (See Pls.’ 56.1 ¶¶ 152–53.)
Nonetheless, the Village approved the Congregation’s tax exemption applications in both years.
(Id. ¶ 322.)
On December 11, 2006, Ulman, after reviewing the wetlands laws of Chestnut Ridge,
New Hempstead, and South Nyack, and the New York State Environmental Conservation Law,
distributed a memo to Mayor Marshall discussing a proposed Wetlands law. (Id. ¶ 183; Defs.’
56.1 ¶ 151.) On December 18, 2006, the Board of Trustees held a public hearing entitled
10
On November 8 of that year, the Village resolved not to oppose an agricultural project
outside the Village because it was the “policy of the village” not to comment on projects that did
“not directly affect the Village.” (Pls.’ 56.1 ¶ 37; Savad Decl. Ex. 185 (Board of Trustees
Meeting Agenda) 2.)
13
“Amending the Zoning Law of the Village of Pomona in Relation to Dormitory Buildings,” at
which a proposed law regarding dormitories was to be discussed. (Pls.’ 56.1 ¶ 157; Defs.’
Counter 56.1 ¶ 157; Defs.’ 56.1 ¶ 133.) The Board of Trustees adjourned discussion of the
proposed local law, at the request of Plaintiffs’ counsel, to the next board meeting. (Defs.’ 56.1 ¶
134.) Early the next year, on January 9, 2007, Preserve Ramapo, a political action group in the
region, leaked tentative plans for the Congregation’s proposed rabbinical college to the public.
(See Defs.’ 56.1 ¶ 135; Pls.’ Counter 56.1 ¶ 135; see also Pls.’ 56.1 ¶ 158; Defs.’ Counter 56.1 ¶
158.). A week later, on January 14, 2007, an article in The Journal News reported that the
proposed rabbinical college would bring 4,500 additional residents to the Village. (Defs.’ 56.1 ¶
137.)
Subsequently, on January 22, 2007, the Board of Trustees held another hearing on the
proposed law regulating dormitories and on the proposed law regarding wetlands, but most
public comments “were aimed at the plans for the proposed rabbinical college.” (Pls.’ 56.1 ¶
159; Defs.’ 56.1 ¶ 140.) For the first time, the Congregation had a videographer and court
reporter record and transcribe the meeting. (Defs.’ 56.1 ¶ 141.)11
After the hearing, the Village adopted Local Law 1 of 2007, (Defs.’ 56.1 ¶ 142), which
provided, in relevant part, that “[a] dormitory building shall not occupy more than twenty (20)
percent of the total square footage of all buildings on the lot,” Local Law 1 of 2007, as codified
at Village Code § 130-10(F)(12). (See also Defs.’ 56.1 ¶ 143; Ulman Aff. Exs. 3, 16.)12 The
The Village also denied the Congregation’s application for tax exempt status that year.
(Id. ¶ 323.)
11
12
There remained no schools in the Village at the time. (Pls.’ 56.1 ¶ 172.)
14
Board of Trustees extended the public hearing on the proposed wetlands law because it “had not
yet received a response from [the] Rockland County Planning Department.” (Defs.’ 56.1 ¶ 153.)
In the interim, from January 2007 through March 2007, Plaintiffs allege that Mayor Marshall
campaigned for reelection as Mayor on a slate with Alan Lamer, who ran for reelection as
Trustee, and Former Mayor Sanderson ran for Mayor on a slate with Yagel and Louie, who were
running for election as Trustees. (Pl.’s 56.1 ¶ 269.)13 The proposed rabbinical college “was a
significant issue” during the campaign, and Sanderson, Yagel, and Louie promised “they would
fight the rabbinical college.” (Id. ¶¶ 273, 276.)
On February 26, 2007, the Board of Trustees continued its public hearing on the proposed
wetlands law, which was attended by Plaintiffs’ attorney, Susan Cooper, who requested that the
public be given “further opportunity” to comment. (Defs.’ 56.1 ¶¶ 154–55.) In response, the
Board of Trustees held another public hearing on the proposed wetlands law on March 26, 2007.
(Id. ¶¶ 156–57.) On April 23, 2007, the Board of Trustees adopted Local Law 5 of 2007, (id. ¶
158), which added a chapter to Village Law pertaining to wetlands and provided, in relevant part,
and except for certain exceptions that are inapplicable here, that
it shall be unlawful to conduct, directly or indirectly, any of the following
activities upon any wetland . . . or within 100 feet of the boundary of any wetland
. . . unless a permit is issued therefor . . . (A) [a]ny form of draining dredging,
excavation[,] or removal of material, except removal of debris or refuse[;] (B)
[a]ny form of depositing of any material such as but not limited to soil, rock,
debris, concrete, garbage, chemicals, etc.[;] (C) [e]recting any building or
structure of any kind, roads, driveways, the driving of pilings or placing of any
other restrictions, whether or not they change the ebb and flow of water[;] (D)
13
While Plaintiffs fail, pursuant to Local Rule 56.1, to support this statement with
admissible evidence, Defendants admit its contents in its responses to subsequent statements.
(See Defs.’ Counter 56.1 ¶¶ 273 (admitting timing of campaign), 270 (admitting that Mayor
Marshall served as Mayor, and Alan Lamer as Trustee, during the campaign), 274 (admitting that
Sanderson, Louie, and Yagel ran on a ticket together).
15
[i]nstalling a septic tank, running a sewer outfall, discharging sewage treatment
effluent or other liquid waste into or so as to drain into any wetland, water body[,]
or watercourse[;] (E) [a]ny other activity which substantially impairs any of the
several functions served by wetlands . . . .
Local Law 5 of 2007, codified at Village Code § 126-3(A). (See also Defs.’ 56.1 ¶ 159; Ulman
Aff. Exs. 4–5.) The law further provided that “[t]he aforesaid one-hundred-foot buffer . . . shall
not apply to lots that are improved with single-family residences.” Local Law 5 of 2007,
codified at Village Code § 126-3(D). (See also Defs.’ 56.1 ¶ 160; Ulman Aff. Exs. 4–5.) Soon
thereafter, in a May 9, 2007 email, Former Mayor Sanderson indicated her opposition to an
Orthodox middle school proposed to be constructed near the Village, noting that it did “not
sound good” and encouraging others to attend public hearings on the matter. (Pls.’ 56.1 ¶ 375
(citing Savad Decl. Ex. 11 (Sanderson Dep. Tr.) 224–26)); Savad Ex. 170 (May 9, 2007 email).)
Both prior to and after the passage of the Wetlands Law, the Congregation sent letters to
the Village regarding its plans for the proposed rabbinical college, specifically on March 28,
April 25, and June 22, 2007, and Susan Cooper spoke about the Congregation’s plans at a Board
of Trustees meeting on April 12, 2007. (Pls.’ 56.1 ¶ 409.) While what requests those letters and
statements contained, and whether they constituted a proper application for a meeting, is in
dispute, (see Defs.’ Counter 56.1 ¶ 409–10), the Parties agree that the Congregation was never
granted any type of meeting to discuss its proposal, (Pls.’ 56.1 ¶ 411). Nonetheless, in May
2007, the Congregation held a meeting “to present information to the public about the proposed
rabbinical college,” and Village officials appear to have, on a few occasions, encouraged
residents not to attend. (Pls.’ 56.1 ¶¶ 429–30, 432–34; Defs.’ Counter 56.1 ¶¶ 432–33.)
16
4. The Impact of the Challenged Laws
Plaintiffs allege that, collectively, the Challenged Laws prevent the construction of the
rabbinical college in the Village. Because the entire Village, as noted, is zoned R-40, the Village
Code permits only a limited number of land uses in the normal course, namely houses, libraries,
museums, public parks, and playgrounds, see Village Code § 130-9, and, by special use permit,
some other developments, including educational institutions, see Village Code § 130-10(F), and
houses of worship, see Village Code §130-10(G).14 Plaintiffs contend that their rabbinical
college is foreclosed by the Challenged Laws because (1) the Accreditation Law requires that
educational institutions be “accredited by the New York State Education Department or similar
recognized accreditation agency” and Plaintiffs’ rabbinical college allegedly cannot be
accredited, (2) the Dormitory Law excludes rooms that “contain separate cooking, dining or
housekeeping facilities” as well as “single-family, two-family, and/or multifamily dwelling
units,” constrains dormitory use to administrative staff, faculty, and students, and limits
dormitory construction to 20% “of the total square footage of all buildings on the lot,” which
effectively bar Plaintiffs from building the housing they desire, and (3) the Wetlands Law
requires a 100-foot buffer around wetlands of 2,000 square feet or more on properties not
improved with single family homes, which renders it impossible for Plaintiffs’ to build a suitable
access road to the rabbinical college on the Subject Property, the only available property on
which an educational institution can be built in the Village. (See Mem. of Law in Supp. of Pls.’
Mot. for Summ. J. (“Pls.’ Mem.”) 4–9, 18 (Dkt. No. 138).) Plaintiffs also allege that the
14
As noted, R-40 refers to residential district zoning, requiring a minimum of 40,000
square feet per lot. (See Pls.’ 56.1 ¶ 4.) See also Village Code § 130-5.
17
Congregation cannot obtain a variance for its hoped-for use, (id. at 8), and that the Challenged
Laws were motivated by discrimination, (id. at 4.) Accordingly, as limited by the Court’s 2013
Opinion and Order, Plaintiffs seek a declaratory judgment finding the Challenged Laws
unconstitutional and illegal. (SAC 64.)
B. Procedural History
Plaintiffs’ filed their first Complaint on July 10, 2007, (Dkt. No. 1), and then filed an
Amended Complaint on July 30, 2007, (Dkt. No. 12). Plaintiffs filed a Second Amended
Complaint on November 19, 2007, (Dkt. No. 27).15 Defendants filed a Motion to Dismiss, (Dkt.
No. 36), which the Court granted in part in an Opinion and Order dated January 7, 2013, (Dkt.
No. 53).
Following discovery, the Court held a pre-motion conference on October 27, 2014, (see
Dkt. (minute entry for Oct. 27, 2014)), at which the Court adopted a Scheduling Order for
summary judgment motions, (Dkt. No. 135). Pursuant to that Order, Plaintiffs filed their Motion
for Partial Summary Judgment and associated documents, (Dkt. Nos. 137–139, 143–144, 146–
149, 151–155), and Defendants filed their Motion for Summary Judgment and associated
documents, (Dkt. Nos. 140–142, 145, 150), on January 22, 2015. Pursuant to an extension of
time granted by the Court, (see Dkt. Nos. 163, 187), the Parties filed opposition papers on April
2, 2015, (Dkt. Nos. 167–173, 175–76), and replies on May 21, 2015, (Dkt. Nos. 190, 193).
Defendants also filed their Counter Statement to Plaintiffs’ Supplemental Rule 56.1 Statement on
May 21, 2015. (Dkt. No. 194.) Additionally, pursuant to an extension of time granted by the
15
Plaintiffs appear to have filed an identical version of their Second Amendment
Complaint on two occasions. (See Dkt. Nos. 27, 28.)
18
Court, (Dkt. No. 166), the United States of America (“United States”) filed a Motion to Intervene
and a brief defending the constitutionality of RLUIPA on April 23, 2015, (Dkt. Nos. 182–183),
which Motion the Court granted on April 24, 2015, (Dkt. No. 184).
On April 27, 2015, the Court held a pre-motion conference on Plaintiffs’ putative motion
for sanctions for spoliation of evidence. (See Dkt. (minute entry for April, 27, 2015).) Pursuant
to a Scheduling Order of the same date, (Dkt. No. 185), and an extension of time granted by the
Court, (Dkt. No. 189), Plaintiffs filed their Motion for Sanctions and associated documents on
June 3, 2015, (Dkt. Nos. 195–197). Defendants filed their Opposition and associated documents
on July 1, 2015, (Dkt. Nos. 200–204), and Plaintiffs filed their Reply on July 15, 2015, (Dkt. No.
205). The Court held Oral Argument on the pending Summary Judgment Motions on July 8,
2015. (See Dkt. (minute entry for July 8, 2015).)
II. Discussion
A. Standard of Review
Summary judgment is appropriate where the movant shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.
2014) (same). “In determining whether summary judgment is appropriate,” a court must
“construe the facts in the light most favorable to the non-moving party and . . . resolve all
ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper
Saddle River. v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014)
(same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute
19
exists.” Vt. Teddy Bear Co.. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also
Aurora Comm. Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2
(S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on the
nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to
the trier of fact on an essential element of the nonmovant’s claim,” in which case “the
nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue
of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse
Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alterations and internal quotation marks
omitted). Further, “[t]o survive a [summary judgment] motion . . . , [a non-movant] need[s] to
create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to
‘come forward with specific facts showing that there is a genuine issue for trial,’” Wrobel v. Cty.
of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co..
v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), and “cannot rely on the mere allegations or
denials contained in the pleadings,” Walker v. City of N.Y., No. 11-CV-2941, 2014 WL 1244778,
at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted).
“On a motion for summary judgment, a fact is material if it might affect the outcome of
the suit under the governing law.” Royal Crown Day Care, LLC v. Dep’t of Health & Mental
Hygiene of City of N.Y., 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At
summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess
whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks
omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No.
1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Accordingly, “[a]
20
[party] opposing a motion for summary judgment must lay bare his proof in evidentiary form and
raise an issue of fact sufficient to send to the jury.” Weiss v. La Suisse, Société D’Assurances
Sur La Vie, 293 F. Supp. 2d 397, 408 (S.D.N.Y. 2003) (internal quotation marks omitted). A
court’s goal should, therefore, be “‘to isolate and dispose of factually unsupported claims.’”
Geneva Pharm. Tech. Corp. v. Barr Labs., Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)); see also Schatzki v. Weiser Capital
Mgmt., LLC, No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same).
B. Analysis
1. Standing
The Court begins, as it did in the 2013 Opinion and Order, with the threshold issue of
standing. See Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009) (“[S]tanding . . . is
intended to be a threshold issue at least tentatively decided at the outset of the litigation.”).
Defendants argue that Plaintiffs lack standing to challenge two of the Challenged Laws: the
Dormitory Law and the Wetlands Law. (See Defs.’ Mem. of Law in Supp. of Their Mot. for
Summ. J. (“Defs.’ Mem.”) 11–14 (Dkt. No. 141).)
Generally, under Article III, to obtain retrospective relief, a plaintiff must show (1) that
he or she suffered an injury in fact which is concrete and particularized and actual or imminent,
(2) that the injury is fairly traceable to the alleged unlawful conduct of the defendant, and (3) that
it is likely that the injury will be redressed by a favorable federal court decision. See Marcavage
v. The City of N.Y., 689 F.3d 98, 103 (2d Cir. 2012) (citing Lujan v. Defs. of Wildlife, 504 U.S.
555, 560–61 (1992)); see also Pac. Capital Bank, N.A. v. Conn., 542 F.3d 341, 350 (2d Cir.
2008) (“[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered
21
an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision.” (alteration in original) (quoting Friends of the Earth, Inc. v. Laidlaw
Envt’l. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). Additionally, “[t]o establish standing
to obtain prospective relief,” e.g., declaratory relief, “a plaintiff must show a likelihood that he
will be injured in the future,” Carver v. City of N.Y., 621 F.3d 221, 228 (2d Cir. 2010) (internal
quotation marks omitted); see also Abidor v. Napolitano, 990 F. Supp. 2d 260, 272 (E.D.N.Y.
2013) (“An action for declaratory judgment does not provide an occasion for addressing a claim
of alleged injury based on speculation as to conduct which may or may not occur at some
unspecified future date.”), “[t]hat is, a plaintiff must demonstrate a certainly impending future
injury,” and to do so, “a plaintiff cannot rely solely on past injuries; rather, the plaintiff must
establish how he or she will be injured prospectively and that injury would be prevented by the
equitable relief sought,” Marcavage, 689 F.3d at 103. As indicated above, each of these factors
“must be supported in the same way as any other matter on which . . . Plaintiff bears the burden
of proof.” Lujan, 504 U.S. at 561.
In addition to the requirements of Article III, there are also prudential limits on standing.
See Lerman v. Bd. of Elections, 232 F.3d 135, 143 (2d Cir. 2000) (“The question of standing
encompasses both constitutional and prudential considerations.”). Generally, a plaintiff may not
“rest his claim to relief on the legal rights or interest of third parties.” Warth v. Seldin, 422 U.S.
490, 499 (1975). In the First Amendment context, however, “litigants . . . are permitted to
challenge a statute not because their own rights . . . are violated, but because of a judicial
22
prediction or assumption that the statute’s very existence may cause others not before the court
to refrain from constitutionally protected [conduct].” Va. v. Am. Booksellers Assn., 484 U.S.
383, 392–93 (1988) (internal quotation marks omitted). More specifically, while “[t]he issue of
whether a facial challenge may be entertained is one prudential consideration . . . . ,” Lerman,
232 F.3d at 143, in the First Amendment context a plaintiff “need only demonstrate a substantial
risk that application of the provision will lead to the suppression” of First Amendment rights, id.
at 144 (internal quotation marks omitted); see also Dickerson v. Napolitano, 604 F.3d 732, 742
(2d Cir. 2010) (“[T]he plaintiff is allowed to challenge a law that may be legitimately applied to
his or her own expressive conduct if the law has the potential to infringe unconstitutionally on
the expressive conduct of others.”); Roman Catholic Archdiocese of N.Y. v. Sebelius, 907 F.
Supp. 2d 310, 322 (E.D.N.Y. 2012) (noting, with respect to standing in a facial challenge to
statute on free exercise grounds, that “‘[a] plaintiff bringing a pre-enforcement facial challenge
against a statute need not demonstrate a certainty that it will be prosecuted under the statute to
show injury, but only that it has an actual and well-founded fear that the law will be enforced
against it’”) (some internal quotation marks omitted) (quoting Vt. Right to Life Comm., Inc. v.
Sorrell, 221 F.3d 376, 382 (2d Cir. 2000)); Savago v. Vill. of New Paltz, 214 F. Supp. 2d 252,
254 (N.D.N.Y. 2002) (“Exceptions . . . in the First Amendment context allow a plaintiff to
challenge a law on its face on the grounds that it is content-based [and] that it might chill the
First Amendment rights not only of the plaintiff, but of others before the court.”).
In its 2013 Opinion and Order, the Court held that the Congregation “ha[d] shown that it
ha[d] standing to challenge the ordinances at issue because, accepting as true the allegations in
the Second Amended Complaint, the Congregation ha[d] alleged a particularized injury that
23
would be redressed if the Court granted the requested relief.” Tartikov, 915 F. Supp. 2d at 591.
While it remains “the burden of the party invoking federal jurisdiction to establish standing,”
Lujan, 504 U.S. at 561, the Court cannot merely rely on the allegations of the Second Amended
Complaint at this stage of the case. Rather, “[t]o defend against summary judgment for lack of
standing, . . . [P]laintiff must set forth by affidavit or other evidence specific facts supporting
standing . . . .” N. Res. Def. Council, Inc. v. U.S. Food and Drug Admin., 710 F.3d 71, 79 (2d
Cir. 2013) (internal quotation marks omitted).
The Court previously found standing on the basis of five separate allegations in the
Second Amended Complaint, namely:
(1) the Congregation owns the Subject Property; (2) it purchased the Subject
Property with the intention of building a rabbinical college thereon; (3) it already
has begun to develop plans to build the rabbinical college; (4) the Subject Property
is subject to [§§] 130–4, 130–9, and 130–10 of the Village Zoning Code, as well as
[§] 126 (the Village's wetlands ordinance), which on their face prohibit
unaccredited educational institutions and some of the Congregation's planned
accessory uses; and (5) those provisions were enacted unlawfully to prevent the
Congregation from building its rabbinical college.
Tartikov, 915 F. Supp. 3d at 61. As outlined above, there is no dispute among the Parties as to
the first and third allegations, that the Congregation owns the Subject Property and has at least
begun to develop plans to build a rabbinical college, though the extent of that development is in
dispute, (compare Defs.’ 56.1 ¶¶ 26–27, with Pls.’ Counter 56.1 ¶¶ 26–27 (discussing the state of
the curriculum)), and Defendants have offered no evidence to rebut Plaintiffs’ second allegation,
which is supported by evidence, that the Congregation purchased the Subject Property to build a
rabbinical college. (See Pls.’ 56.1 ¶ 102 (citing Decl. of Michael Tauber (“Tauber Decl”) ¶ 3
24
(Dkt. No. 148)).)16 Moreover, Plaintiffs need not prove the fifth allegation—that the provisions
were enacted to prevent the rabbinical college from being built—in order to establish standing to
challenge them. See Chabad Lubavitch v. Borough of Litchfield, 796 F. Supp. 2d 333, 338 (D.
Conn. 2011) (holding that religious corporation which owned property had standing to challenge
zoning ordinance); cf. Lamar Advert. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365,
373–75 (2d Cir. 2004) (finding that standing requirements were satisfied where an ordinance
prevented the plaintiff from building certain signs); M.J. Entm’t Enter. v. City of Mount Vernon,
234 F. Supp. 2d 306, 310 (S.D.N.Y. 2002) (determining that the plaintiff had established
standing with respect to one claim where the challenged ordinance kept the plaintiff from
“offer[ing] topless dancing as entertainment at its business establishment”). Accordingly, the
central question is whether the Challenged Laws apply to, and foreclose, the Congregation’s
planned rabbinical college.
With regard to the Dormitory Law, Defendants argue that while the Challenged Laws
permit dormitories as accessory uses to an educational use, (Defs.’ Mem. 12 (citing Local Law 5
of 2014 and Local Law 1 of 2007)), “[a]s a matter of law, the housing aspect of Plaintiffs’
hypothetical plan is not an accessory use, because it is so disproportionate to the educational use
that it cannot be subordinate or incidental,” (id. at 11.) In support, Defendants cite two dated
cases in which state courts held that certain land uses were not accessory uses because they were
not “naturally and normally incidental to the main use of the premises.” (Id. at 12 (citing Ames
In response, (see Defs.’ Counter 56.1 ¶102), Defendants cite only the Congregation’s
Certification of Incorporation, which does not mention the Subject Property but does indicate
that the Congregation was incorporated “[t]o establish, maintain[,] and conduct a school . . . of
the holy Torah and to maintain classes for the teachings of the customs, traditions[,] and mode of
worship of the Jewish Orthodox faith,” (Gordon Aff. Ex. 18, at unnumbered 2.)
25
16
v. Palma, 384 N.Y.S.2d 587, 587 (App Div. 1976) and Town Hall, Inc. v. Tax Comm’n, 234
N.Y.S.2d 760, 761 (App. Div. 1962).) Defendants also cite the deposition of C. Babad as
evidence that housing, rather than education, was the primary purpose of the proposed
residences. (Id. at 13 (citing Savad Decl. Ex. 31 (C. Babad Dep. Tr.) 102 (“Because if we come
in with 250 families—and lucky they only can have one child a year, but can you imagine if they
. . . have two a year? Probably in the next ten years we’ll have several thousand of them over
there.”)).)
The Village Code contains no language proclaiming that certain uses cannot be because
of their size, but rather defines accessory as “[a] use which is customarily incidental and
subordinate to the principal permitted use on the lot and located on the same lot therewith . . . .”
Village Code § 130–4. Defendants’ cases likewise do not stand for the proposition that the mere
size of a proposed use, either in absolute terms or in proportion to other uses, renders it nonaccessory. Rather, as the court in Ames put it, “[a]n accessory use that is too large for an
applicant’s proven needs ceases to be naturally and normally incidental to the main use of the
premises,” 384 N.Y.S.2d at 587 (emphasis added); see also Town Hall, Inc. v. Tax Comm’n of
City of N.Y., 234 N.Y.S.2d 760, 761 (App. Div. 1962) (finding that a clubhouse was not an
accessory use to an educational institution not because of its size, but because “the exhibits
which detailed the record of events held in the club [made] it manifestly clear that such use was
the dominant one and that the use for educational purposes was merely incidental”). As
Plaintiffs point out, there is ample case law indicating that the size of a development is not
dispositive to whether it is accessory. See, e.g., Mamaroneck Beach & Yacht Club, Inc. v.
Zoning Bd. of Appeals of Vill. of Mamaroneck, 862 N.Y.S.2d 81, 85 (App. Div. 2008) (“The
26
[zoning board of appeals], in engrafting area requirements upon provisions defining a permissive
accessory use, based upon the square footage of other building structures on the property,”
namely by ruling that a structure that constituted more than 50% of total building square footage
on the property could not be an accessory use, “was irrational and unreasonable.”). Rather, what
matters is the size of the accessory use relative to the need for that use. See De Mott v. Notey,
143 N.E.2d 804, 806 (App. Div. 1957) (finding that use of two out of three buildings as
dwellings was permissible accessory use to hospital because “[i]t is . . . generally known . . . that
hospitals customarily provide living accommodations for at least some of their personnel”).
The evidence in the record is sufficient to establish standing as to the Dormitory Law.
Plaintiffs contend, repeatedly, that they intend, and need, to build family housing for students of
the proposed rabbinical college, and that such housing will only be used by students, faculty, and
their families. (See Pl.’s 56.1 ¶¶ 457, 459–62, 465–67, 471–73, 489–491 (discussing need for
such housing); see also ¶ 486 (“The housing component of the rabbinical college is only for
students (and teachers) who are committed to the full-time religious training program along with
their families, as well as one or two caretakers of the subject property.”); ¶ 497 (noting that,
when the Congregation was formed, “the understanding was that the planned rabbinical college
would be only for students (and teachers) committed to the full-time program, along with their
families”); ¶¶ 493–495 (discussing need for family housing with housekeeping, cooking, and
dining facilities); ¶¶ 603–614 (discussing how the Dormitory Law prohibits plaintiffs’ desired
housing).) While some of the families living in the proposed dormitories may be large,
potentially requiring the construction of large facilities, that fact does not make their size
disproportionate, as a matter of law, to their need. See Assoc. of Zone A & B Homeowners
27
Subsidiary, Inc. v. Zoning Bd. of App. of City of Long Beach, 749 N.Y.S.2d 68 (App. Div. 2002)
(“Educational institutions are generally permitted to engage in activities and locate on their
property facilities for such social, recreational, athletic, and other accessory uses as are
reasonably associated with their educational purpose.” (internal quotation marks omitted)).
While Defendants may maintain that this is not Plaintiffs’ true motive, the question of whether
Plaintiffs intend the housing to serve only the rabbinical college, or the Orthodox Hasidic
community generally, is, at most, a question of material fact for the jury. But, viewing the facts
in favor of the Plaintiffs, as non-movants on this issue, Defendants’ argument falls short.
Additionally, the question of whether the housing at issue here is actually an accessory
use is beside the point. The Dormitory Law, in concert with other Village laws, including the
Challenged Laws, prevent Plaintiffs from building the family housing they seek as part of their
rabbinical college. The Dormitory Law, specifically, prohibits any sort of housing as part of an
educational institution that is not defined as a “dormitory” in that statute. See Village Code §
130-9. Because the Dormitory Law explicitly precludes housing for students with families,
housing that comprises greater than 20% of building square footage on the property at issue, or
the building of separate cooking or housekeeping facilities, it is an insurmountable barrier to
Plaintiffs’ rabbinical college as currently conceived, regardless of how “accessory use” is
defined. (See Mem. of Law in Opp’n to Defs.’ Mot. for Summ. J. (“Pls.’ Opp’n”) 5–6 (Dkt. No.
167).)17 Thus, the merits of Plaintiffs’ challenge to the Dormitory Law notwithstanding,
Plaintiffs’ have provided sufficient evidence to indicate that the Dormitory Law, on its face,
In fact, Plaintiffs contend that the dormitories are not an “accessory” use at all, but
rather a component of the primary use: the rabbinical college itself. (See Pls.’ Mem. 6 n.7.)
17
28
forecloses Plaintiffs’ proposed rabbinical college, or any educational institution that may seek
include housing for families of students, and therefore Plaintiffs have standing to levy a facial
challenge against it.
With regard to the Wetlands Law, Defendants argue that “[t]here is no evidence the
wetlands local law applies to any or some of the wetlands on the Subject Property because
Plaintiffs have provided no wetlands studies of this property that would identify wetlands
covered by the local wetlands law.” (Defs.’ Mem. of Law in Opp’n to Pls.’ Partial Mot. for
Summ. J. (“Defs.’ Opp’n”) 27 (Dkt. No. 170).) Plaintiffs do, however, produce at least some
evidence of wetlands on the Property, (see Beall Decl. ¶¶ 281–84, 287, 289 (discussing wetlands
on property in the context of state and federal regulations), Ex. H (indicating the existence of
wetlands on the east side of the property, and a stream on the west side of the property); Ex. I
(same); Ex. T (property map identifying wetlands); see also Aff. of Amanda E. Gordon (“Second
Gordon Aff.”) Ex. A (Report of Charles J. Voorhis) at 63 (Dkt. No. 173) (indicating the
existence of wetlands on the Subject Property)), which Defendants do not rebut.18 Plaintiffs are
therefore permitted to bring a facial challenge against the Wetlands Law, and there is therefore
no basis to grant summary judgment to Defendants on standing grounds.
2. Ripeness
Defendants also contend that Plaintiffs’ challenge is unripe because Plaintiffs never
submitted a formal application related to the proposed rabbinical college. (See, e.g., Defs.’
Mem. 14 (“Plaintiffs’ claims are not ripe . . . because they never filed an application . . . .”);
18
The Court below addresses the question of whether the Wetlands Law changed the
regulatory environment with respect to Subject Property.
29
Defs.’ Opp’n 4 n.6 (“[T]he dormitory regulations and wetlands regulations are beyond this
Court’s jurisdiction due to a lack of standing and ripeness.”); id. at 26 (“Plaintiffs lack standing
on the wetlands regulation, as discovery has shown that their attack on them is unripe and a
claim at this point is merely speculative. Therefore, the Court lacks jurisdiction over the
wetlands provisions, even as to a facial challenge.”).) For the reasons stated in the Court’s 2013
Opinion and Order, which is unaffected by the evidence adduced after that Opinion and Order
was issued, Plaintiffs’ facial challenges, by virtue of being facial challenges, are ripe and have
been ripe from “‘the moment the [Challenged laws] [were] passed.’” Tartikov, 915 F. Supp. 2d
at 595 (quoting Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 736 n.10 (1997)); see
also S. Lyme Prop. Owners Ass’n, Inc. v. Town of Old Lyme, 539 F. Supp. 2d 524, 536 (D. Conn.
2008) (“[F]acial challenges are generally ripe the moment the challenged regulation or ordinance
is passed.” (internal quotation marks omitted)); Ecogen, LLC v. Town of Italy, 438 F. Supp. 2d
149, 155 (W.D.N.Y. 2006) (“[F]acial challenges to legislative acts are ripe by their very nature.”
(internal quotation marks omitted)).
In a similar vein, Defendants suggest that Plaintiffs’ RLUIPA substantial burden claim is
unripe because Plaintiffs have not filed an application, meaning the Village has not yet
“impose[d]” the Challenged Laws on them. (See Defs.’ Mem. 36–37.) Plaintiffs disagree,
noting that the inclusion of “implement” in the statute suggests that “impose” has a different
meaning and is analogous to “enact.” (See Pls.’ Mem. 10–11.) The Court agrees with Plaintiffs:
a substantial burden can be imposed by the mere enactment of legislation. See Elijah Group,
Inc. v. City of Leon Valley, 643 F.3d 419, 422 (5th Cir. 2011) (“When we focus on the text of the
Clause, we read it as prohibiting the government from ‘imposing,’ i.e., enacting, a facially
30
discriminatory ordinance or ‘implementing,’ i.e. enforcing a[n ordinance].”); Roman Catholic
Diocese, 2012 WL 1392365, at *8 (upholding facial challenge to zoning law because the plaintiff
had adequately alleged that the “conditions imposed by the [law] would significantly restrict the
[plaintiff’s] use of their [p]roperty for religious burial purposes”). Accordingly, Plaintiffs’ facial
challenges are ripe for adjudication.
3. Spoliation
a. Factual Background
Plaintiffs, in their Motion for Sanctions, request that the Court sanction Defendants for
destroying a Facebook post (the “Facebook Post”) written by Louie and related text messages
between Mayor Yagel and Louie, and for failing to produce “the non-destroyed portion of those
texts,” which Plaintiffs allege contained relevant evidence. (Pls.’ Mem. of Law in Supp. of Pls.’
Mot. for Sanctions Due to Spoliation of Evidence (“Pls.’ Sanctions Mem.”) 2 (Dkt. No. 196).)
In May 2013, Louie posted a comment on her personal Facebook page noting her
disapproval of an all-male gathering of Hasidic/Orthodox Jews, though without directly
referencing their religion. (Defs.’ Mem. of Law in Opp’n to Pls.’ Mot. for Sanctions Due to
Spoliation of Evidence (“Defs.’ Sanctions Opp’n”) 1–2 (Dkt. No. 200).)19 Thereafter, following
an angry text message exchange between Mayor Yagel and Louie, Louie deleted the Facebook
post. (Id. at 2; see also Decl. of Brett Yagel (“Yagel Sanctions Decl.”) ¶ 19 (Dkt. No. 202)
Louie claims that, as a women’s rights activist, she objected to an “all-male gathering
being held at a municipal facility, where women were not permitted to attend,” and that she did
not think it the Facebook post was relevant to the this Action. (See Decl. of Rita J. Louie
(“Louie Sanctions Decl.”) ¶¶ 14–17 (Dkt. No. 201); see also Defs.’ Sanctions Opp’n 2.)
19
31
(referencing “any text message”).)20 In March 2015, Mayor Yagel posted a comment on his
personal Facebook page about a Rockland County Times newspaper article. (Pls.’ Sanctions
Mem. 2.) Mayor Yagel’s comment stated, in relevant part:
FACT: Rita Louie, while still a Trustee, posted on Facebook, inappropriately,
about an ‘ALL MALE gathering’ at the Provident Bank Ballpark. Especially
given the lawsuit which the Village of Pomona is involved with and the NATION
[sic] IMPLICATIONS it could have. i.e., federal law potentially being struck
down as unconstitutional, just as it’s [sic] predecessor (RFA) was. Total lapse in
reason and judgment. Here [sic] explanation (have the text still Rita), on
medication and I’ve removed it. And if a vacancy should occur (post this village
election), how could anyone in their right mind (i.e. New Mayor), consider this
person as a viable candidate to fill an [sic] trustee unexpired (his), given their
predisposition to making such blatant and inappropriate remarks.
(Decl. of Paul Savad in Supp. of Pls.’ Mot. for Sanctions Due to Spoliation of Evidence (“Savad
Suppl. Decl.”) Ex. 1 (Comment) (Dkt. No. 197).)
After learning that Louie had made such remarks, Plaintiffs requested “all responsive
social media posts and comments,” including Louie’s Facebook post and the text of the post the
Mayor Yagel indicated that he retained. (See Savad Suppl. Decl. Ex. 2 (Mar. 19, 2015 email
demanding production).) Defendants responded they were unable to produce the Facebook post
because Mayor Yagel did not have a copy and produced a partial copy of text messages
discussing the post. (Id. Ex. 3 (Mar. 25, 2015 letter from Andrea Donovan Napp to Donna
Sobel, Esq. describing disclosures).) The text messages contained the following exchange:
[Mayor Yagel]: Is it your position to cause damage to the village? Someone just
sen[t] me a screenshot of your Facebook post! If it is your intent to jeopardize
target . . . then you are succeeding and may cause us to loose! [sic] You should
consider . . . .
Mayor Yagel avers that he did not believe the post “reflected a religious animus” or
was relevant to the instant Action but that he was worried that the post would be
mischaracterized as anti-Semitic by Plaintiffs. (Yagel Sanctions Decl. ¶¶ 16–17.)
32
20
[Louie]: A little over the top but I understand your anger. All taken down and I
reviewed all my accounts to make sure there are no other unfortunate mistakes.
But no, I don’t think I should consider resigning.
[Mayor Yagel]: I am so angry now that my heads [sic] about to pop. Their
lawyers will use everything. Remember the case in NJ where the federal judge
ruled that comments made by a public official in a non official [sic] setting led
him to decide potential prejudice even though there was no final ruling but based
on prior witness testimony. We have too much riding on this case for you to
jeopardize it. Everything is fair game in the lawsuit. Judge Karas is watching this
case . . . publicly commenting on an all male [sic] gathering when it’s related to a
religious entity, is not good!
(Savad Suppl. Decl. Ex. 4.) Plaintiffs allege that a portion of the text message is missing after
Mayor Yagel writes “[y]ou should consider,” (Pls.’ Sanctions Mem. 4), though Louie’s response
at least suggests that Mayor Yagel encouraged Louie to consider resigning, (Savad Suppl. Decl.
Ex. 4; see also Defs.’ Sanctions Opp’n 10 n.11), as Mayor Yagel himself avers, (Yagel Sanctions
Decl. ¶ 20). Plaintiffs nonetheless allege that Defendants intentionally destroyed the Facebook
post, and failed to retain a complete set of the texts. (Pls.’ Sanctions Mem. 5.)21
Plaintiffs further allege that Mayor Yagel lied about his preservation of this evidence
when he certified, on July 3, 2013, only two months after the exchange at issue, and in response
to Plaintiffs’ interrogatories, that Defendants preserved “all potentially relevant” electronic
screen images. (Pls.’ Sanctions Mem. 5; Savad Suppl. Decl. Ex. 5 at 4 (interrogatory), 19
(verification).) In response, Yagel avers that he did not think the Facebook post was relevant to
the instant action. (See Yagel Sanctions Decl. ¶ 26.)22
21
Additionally, on the basis of these texts, and the fact that they were sent on Friday,
May 10, Plaintiffs determined that the exchange occurred on Friday, May 10, 2013. (Pls.’
Sanctions Mem 4 n.2.)
22
The Court does not take a position on whether Yagel intentionally lied when making
this certification. As discussed below, even if Yagel did not believe the evidence was relevant,
33
b. Applicable Law
“Spoliation is the destruction or significant alteration of evidence, or the failure to
preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”
Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001) (internal quotation
marks omitted). While “[c]ourts cannot and do not expect that a party can meet a standard of
perfection,” Pension Comm. of the Univ. of Montreal Pension Plan v. Bank of Am. Sec. LLC, 685
F. Supp. 2d 456, 461 (S.D.N.Y. 2010), abrogated on other grounds, Chin v. Port Auth., 685 F.3d
136 (2d Cir. 2012), sanctions serve to “(1) deter[] parties from destroying evidence; (2) plac[e]
the risk of an erroneous evaluation of the content of the destroyed evidence on the party
responsible for its destruction; and (3) restor[e] the party harmed by the loss of evidence helpful
to its case to where the party would have been in the absence of spoliation.” Id. at 469 (internal
quotation marks omitted). A spoliation sanction is appropriate where “(1) . . . the party having
control over the evidence had an obligation to preserve it at the time it was destroyed; (2) . . . the
records were destroyed with a culpable state of mind; and (3) . . . the destroyed evidence was
relevant to the party’s claim or defense such that a reasonable trier of fact could find that it
would support that claim or defense.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306
F.3d 99, 108 (2d Cir. 2002) (internal quotation marks omitted). “[D]etermining the proper
sanction to impose for spoliation is ‘confined to the sound discretion of the trial judge . . . and is
assessed on a case-by-case basis.’” Adorno v. Port Auth., 258 F.R.D. 217, 227 (S.D.N.Y. 2009)
(quoting Fujitsu Ltd. V. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001)).
his bad faith is evidenced by the fact that, as he explained in his Facebook post, he still sought
ensure that Plaintiffs did not discover it.
34
c. Application
As to the first element, the duty to preserve, an obligation to preserve evidence “usually
arises when a party has notice that the evidence is relevant to litigation . . . but also on occasion
in other circumstances, as for example when the party should have known that the evidence may
be relevant to future litigation.” Byrnie, 243 F.3d at 107 (internal quotation marks omitted); see
also Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) (same). Indeed, “[w]hile a
litigant is under no duty to keep or retain every document in its possession, once a party
reasonably anticipates litigation, it must suspend its routine document retention/destruction
policy and put in place a litigation hold to ensure the preservation of relevant documents.”
Adorno, 258 F.R.D. at 227 (alterations and internal quotation marks omitted); see also Gren v.
McClendon, 262 F.R.D. 284, 289 (S.D.N.Y. 2009) (describing this time as “the point where
relevant individuals anticipate becoming parties in imminent litigation”); Zubulake v. UBS
Warburg, LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (noting that the duty to preserve evidence
“attache[s] at the time that litigation was reasonably anticipated”). “Relevant documents are
those that a party should reasonably know are relevant in the action, reasonably calculated to
lead to the discovery of admissible evidence, reasonably likely to be requested during discovery
and/or are the subject of a pending discovery request.” Adorno, 258 F.R.D. at 217 (alterations
and internal quotation marks omitted).
It is clear that Defendants were under an obligation to preserve the Facebook post and
related text messages as of the date of the Facebook post: May 10, 2013. This action was filed in
July 10, 2007, (see Dkt No.1), and there was a litigation hold in place as of August 29, 2007,
nearly six years before the comment at issue was posted, (see Savad Suppl. Decl. Ex. 11 (Aug.
35
29, 2007 letter from Former Mayor Sanderson to village officials re: litigation hold)). The
Facebook post is also subject to the litigation hold because it appears to reference a gathering of
individuals with the same religious observance as the Plaintiffs in this Action, who allege that
Louie, among others, discriminated against them. Indeed, Mayor Yagel’s strong reaction to the
post is suggestive not only of the obligation to preserve the post and related text messages but
also of their relevance.
As to the second element, culpable state of mind, “at times [the Second Circuit has]
required a party to have intentionally destroyed evidence; at other times [the Second Circuit has]
required action in bad faith; and at other times [the Second Circuit] has allowed an adverse
inference based on gross negligence” and, accordingly, “a case by case approach [is]
appropriate.” Byrnie, 243 F.3d at 107–08; see also id. at 109 (noting that “intentional destruction
of documents in the face of a duty to retain those documents is adequate” to show a “culpable
state of mind”). In other words, “the culpable state of mind factor is satisfied by a showing that
the evidence was destroyed knowingly, even without intent to breach a duty to preserve it, or
negligently.” Residential Funding, 306 F.3d at 108 (emphasis, alterations, and internal quotation
marks omitted).23 Gross negligence, in this context, is “the failure to exercise even that care
23
The Court recognizes that a recent amendment to Federal Rule of Civil Procedure 37,
subdivision (e) provides that
If electronically stored information that should have been preserved in the
anticipation or conduct of litigation is lost because a party failed to take
reasonable steps to preserve it, and it cannot be restored or replaced through
additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information,
may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive
another party of the information's use in the litigation may:
36
which a careless person would use,” Harkabi v. SanDisk Corp., 275 F.R.D. 414, 419 (S.D.N.Y.
2010) (internal quotation marks omitted), and “[o]nce the duty to preserve attaches, any
destruction of documents is, at a minimum, negligent.” Zubulake, 220 F.R.D. at 220; see also
Orbit One Comm’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 438 (S.D.N.Y. 2010) (“In this
circuit, a culpable state of mind for purposes of spoliation inference includes ordinary
negligence.” (internal quotation marks omitted); see also Residential Funding, 306 F.3d at 108
(“[The] sanction [of an adverse inference] should be available even for the negligent destruction
of documents if that is necessary to further the remedial purpose of the inference.”).
Here, the culpable state of mind element is met. Mayor Yagel clearly stated his concern
about the Court or Plaintiffs learning about Louie’s Facebook post in his comment, and in
response Louie deleted the post. Indeed, rather than seek to preserve the post or any other
relevant social media, Louie assured Mayor Yagel that she had “reviewed all [her] accounts to
make sure there [were] no other unfortunate mistakes.” (Savad Suppl. Decl. Ex. 4.) While
Defendants emphasize the fact that Mayor Yagel did not recognize the “significance” of Louie’s
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information
was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
While the amendment, as Defendants admit, does not take effect until December 1, 2015, (Defs.’
Sanctions Opp’n 8 n.10), it would “abrogate Residential Funding insofar as it holds that
sanctions may be appropriate in instances where evidence is negligently destroyed.” Sekisui Am.
Corp. v. Hart, 945 F. Supp. 2d 494, 503 n.51 (S.D.N.Y. 2013) (discussing an earlier version of
the proposed amendment). Therefore, to impose any remedy beyond one that merely “cure[s]”
any “prejudice,” the Court would have to find an “intent to deprive.” Because the amendment is
not yet effective, the Court need not follow the rule here, but the Court notes that, as explained
below, it nonetheless finds that Defendants had the requisite intent to deprive Plaintiffs of the
evidence at issue.
37
statement that she had deleted the post, (see Defs.’ Sanctions Opp’n 9), neither that detail nor the
fact that Mayor Yagel “continued to castigate” Louie means that Mayor Yagel did not instigate
the destruction of the evidence; his tirade may have been aimed at preventing Louie from posting
similar comments in the future, (id. at 9). Assuming Mayor Yagel’s concern about the post truly
was rooted in his “perception that Plaintiffs would . . . have[] twisted any incidental reference to
Orthodox/Hasidic Jews into something far more nefarious,” that alone not only demonstrates that
Mayor Yagel did not want Plaintiffs to obtain the Facebook post but also, as the text messages
make clear, suggests that Mayor Yagel was concerned about the Court learning about the post as
well. (Id. at 9–10; see also Reply Mem. of Law in Supp. of Pls.’ Mot. for Sanctions Due to
Spoliation of Evidence (“Pls.’ Sanctions Reply”) 3 (Dkt. No. 205).) Thus, regardless of whether
there was actually a “conspiracy” between Mayor Yagel and Louie to destroy the Facebook post,
(see Defs.’ Sanctions Opp’n 10), this is the rare case where bad faith, and a clear intent to
deprive Plaintiffs of the evidence at issue, is sufficiently clear from the face of the record.
As to the third element, “[t]he burden of proving that evidence would have been relevant
to a party’s claims or defense is proportional to the mens rea of the party who destroyed the
evidence, and where the party destroyed the evidence due to ordinary negligence [as opposed to
bad faith], the burden falls on the prejudiced party to produce some evidence suggesting that a
document or documents relevant to substantiating his claim would have been included among the
destroyed files.” Williams v. N.Y.C. Transit Auth., No. 10-CV-882, 2011 WL 5024280, at *8
(E.D.N.Y. Oct. 29, 2011) (emphasis and internal quotation marks omitted). “To satisfy this
burden, the innocent party may provide sufficient evidence that would tend to show that the lost
documents would have been favorable to [its] case.” Id. (internal quotation marks omitted); see
38
also Adorno, 258 F.R.D. at 228 (“Although the burden placed on the moving party to show that
the lost evidence would have been favorable to it ought not be too onerous, . . . when the
culpable party was negligent, there must be extrinsic evidence to demonstrate that the destroyed
evidence was relevant and would have been unfavorable to the destroying party.” (citations and
internal quotation marks omitted)).
Because the Court has found that Defendants’ destruction of evidence was in bad faith,
there is a presumption that the evidence was relevant. See Residential Funding 306 F.3d at 109
(“Where a party destroys evidence in bad faith, that bad faith alone is sufficient circumstantial
evidence from which a reasonable fact finder could conclude that the missing evidence was
unfavorable to that party.”); Chan v. Triple 8 Palace, Inc., No. 03-CV-6048, 2005 WL 1925579,
at *8 (S.D.N.Y. Aug. 11, 2005) (same). However, even if the presumption of relevance did not
apply, the Facebook post and text messages are plainly relevant to Plaintiffs’ discrimination
claims because any subsequent discriminatory animus may indicate a pattern of discrimination,
cf. Arlington Heights, 429 U.S. at 266 (noting propriety of considering “circumstantial” evidence
and the relevance of a “pattern” of discrimination), or whether seeking a text amendment to (or
variance from) the Challenged Laws would be futile, see, e.g., Westchester Day Sch. v. Vill. of
Mamaroneck (“WDS II”), 504 F.3d 288, 349, 352 (2d Cir. 2007) (“WDS II”).24
Facebook posts are regularly produced in litigation as evidence of a party’s thoughts and
actions, see, e.g., Reid v. Ingerman Smith LLP, No. 12-CV-307, 2012 WL 6720752, at *1
Defendants assert that this argument “holds no sway in this case,” but they do not
explain why. (Defs.’ Sanctions Opp’n 14.) As discussed below, and as explained by Plaintiffs in
their Reply, (see Pls.’ Sanctions Reply 7–8), whether Plaintiffs’ efforts to obtain a text
amendment would be futile is a material fact in this Action.
24
39
(E.D.N.Y. Dec. 27, 2012) (ordering such posts produced), and, as Plaintiffs point out, (Pls.’
Sanctions Mem. 9), the post at issue here is responsive to Plaintiffs’ Document Request No. 53
which sought, among other things, all “documents concerning statements . . . concerning Jews,
Hasidic Jews[,] and Orthodox Jews[] including, but not limited to, all blogs [and] on-line
forums,” (Savad Suppl. Decl. Ex. 13).25 In fact, Defendants previously produced a Facebook
post from the day after the offending post. (See id. Ex. 15 at unnumbered 1.)26 Likewise, the
texts are responsive to Plaintiff’s Document Request No. 45, which sought, among other things
“documents including . . . correspondence [and] notes . . . concerning communications by or with
the Village Board and/or its Members . . . concerning the Subject Property and/or the proposed
Rabbinical College.” (Id. Ex. 13.) Moreover, as noted above, the relevance of the evidence is
confirmed by Mayor Yagel’s response to the Facebook Post, particularly given he noted that it
“may cause [Defendants] to loose [sic].” (Id. Ex. 4.) Accordingly, the Court finds that sanctions
of some type are warranted for Defendants destruction of—and failure to produce—this
evidence.27
Defendants’ assertion that the Facebook post is not covered by Plaintiffs’ Document
Request No. 53 is not credible. (See Defs.’ Sanctions Opp’n 14–15.) The fact that the
individuals at issue in Louie’s post are Hasidic and/or Orthodox Jews does, by its very nature,
render it a comment “concerning” Hasidic and/or Orthodox Jews.
25
Defendants’ assertion that the text messages are not covered by Plaintiffs’ Document
Request No. 45 also is not credible. (See Defs.’ Spoliation Opp’n 15.) By virtue of referencing
how Plaintiffs may use the post to show discriminatory animus in the passage of the Challenged
Laws to prevent the construction of the proposed rabbinical college, they clearly relate to the
proposed rabbinical college.
26
27
While Defendants suggest that Magistrate Judge George A. Yanthis limited production
of post-2007 materials to those pertinent to the Village’s interest in passing the Challenged
Laws, (see Defs.’ Sanctions Opp’n 15), the Court’s reading of Judge Yanthis’s Order is that it
40
d. Appropriate Sanction
“[A] district court has broad discretion in crafting a proper sanction for spoliation,” which
should “serve the prophylactic, punitive, and remedial rationales underlying the spoliation
doctrine.” West v. Goodyear Tire and Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). In so
doing, “[a] court should impose the least harsh sanction that can provide an adequate remedy.”
Hawley v. Msphasis Corp., 302 F.R.D. 37, 46 (S.D.N.Y. 2014) (internal quotation marks
omitted); see also Regulatory Fundamentals Grp. v. Governance Risk Mgmt. Compliance, No.
13-CV-2493, 2014 WL 3844796, at *15 (S.D.N.Y. Aug. 5, 2014) (noting that “a court should
always impose the least harsh sanction that can provide an adequate remedy.”). In other words,
it “should be designed to: (1) deter parties from engaging in spoliation; (2) place the risk of an
erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced
party to the same position he would have been in absent the wrongful destruction of evidence by
the opposing party.” West, 167 F.3d at 776. “In determining whether to impose severe
sanctions, such as the entry of a default judgment or an adverse inference instruction, the Court
must assess whether the requesting party suffered prejudice as a result of the loss or withholding
of evidence.” F.D.I.C. v. Horn, No. 12-CV-5958, 2015 WL 1529824, at *15 (E.D.N.Y. Mar. 31,
2015) (internal quotation marks omitted).
Plaintiffs contend that Defendants’ behavior warrants “‘severe disciplinary measures.’”
(Pls.’ Sanctions Mem. 14 (quoting Metro. Opera Ass’n Inc. v. Local 100 Hotel employees &
Rest. Emps. Int’l Union, 212 F.R.D. 178, 219 (S.D.N.Y. 2003)).) They argue that “[a]ny
did not place limits on document requests that were previously in place, (see generally Decl. of
Andrea Donovan Napp (“Napp Sanctions Decl.”) Ex. 2 (transcript) (Dkt. No. 204)).
41
sanction short of a terminating sanction would ‘fail to account for the prejudice or to sufficiently
penalize [Defendants] or deter others,’” (id. at 14 (quoting Regulatory Fundamental, 2014 WL
3844796, at *16), and that striking Defendants’ Answer and affirmative defenses, together with
entering judgment for Plaintiffs, is “appropriate,” (id.). Plaintiffs also maintain that even if this
specific instance of Defendants’ misconduct is insufficient to justify severe sanctions, considered
together with Defendants’ other acts of spoliation, severe sanctions are warranted. (See id. at
15.) Such misconduct allegedly includes failure to forensically image or preserve all
electronically-stored information, failure to timely inform the individual Defendants of the
litigation hold, and the deletion of comments from the minutes of a key meeting (and the failure
to provide a copy of the minutes after those comments were restored). (Pls.’ Sanctions Mem.
15–20.)28
While the Court recognizes that terminating sanctions may be appropriate “if there is a
showing of willfulness, bad faith, or fault on the part of the sanctioned party,” West, 167 F.3d at
779, such sanctions are most appropriate in “extreme circumstances, usually after consideration
of alternative, less drastic sanctions,” id. The Court finds, therefore, that while there is bad faith
here, the circumstances of the case are not sufficiently “extreme” to justify a terminating
sanction, particularly in light of the fact that, as Defendants suggest, this is the only instance of
While the Court ultimately finds consideration of the alleged “pattern” of misconduct
unnecessary in determining the appropriate sanction for the primary misconduct alleged in
Plaintiffs’ Motion, the other allegations Plaintiffs make are (a) not raised as independent grounds
for sanctions, (b) suspect given, as Defendants point out, if Plaintiffs were concerned about
Defendants’ behavior, “they should have raised [the] concern in the spring of 2013 or, at the
latest[,] in the summer of 2014,” when they were first aware of these issues, (Defs.’ Sanctions
Opp’n 18), and (c) satisfactorily explained by Defendants, with the possible exception of
Defendants’ delay in issuing the litigation hold (which Plaintiffs have not demonstrated was
prejudicial), (see id. at 19–23).
42
28
clear bad faith in what has been a case involving voluminous discovery. (See Defs.’ Sanctions
Opp’n 24.) Less drastic sanctions are sufficient in this case, as discussed below. See West, 167
F.3d at 780 (finding terminating sanctions were inappropriate because the district judge could
have instructed the jury to presume the conclusions the spoliated evidence would have been used
to establish and precluded the guilty party from offering contrary evidence).
As an alternative to terminating sanctions, Plaintiffs argue that Defendants should “be
precluded from offering any evidence that Local Law 1 of 2007 and Local Law 5 of 2007 were
not passed with discriminatory animus” and that “the jury should be given an averse inference
instruction” on this issue. (Pls.’ Sanctions Mem. 20.) Plaintiffs also ask that Defendants be
precluded from offering evidence that a text amendment would be considered or that the
Defendants’ interests were not pre-textual, and that the jury should be given an adverse inference
instruction on this issue as well. (See id. at 21.) Plaintiffs maintain that any lesser sanction
would be insufficient. (See id. at 22.)
An adverse inference is “an extreme sanction and should not be imposed lightly.”
Treppel v. Biovail Corp., 249 F.R.D. 111, 120 (S.D.N.Y. 2008); Zubulake, 220 F.R.D. at 219
(“In practice, an adverse inference instruction often ends litigation—it is too difficult a hurdle for
the spoliator to overcome.”). And because Plaintiffs are “free to explore at trial the issue of
records being [lost], without an adverse inference charge, certainly during cross-examination or
for impeachment purposes,” Horn, 2015 WL 1529824, at *16, Defendants are likely to “feel the
impact of this issue at trial in any event, even without an adverse inference,” id. Nonetheless,
“[t]he sanction of an adverse inference may be appropriate in some cases involving the negligent
destruction of evidence because each party should bear the risk of its own negligence.”
43
Residential Funding Corp., 306 F.3d at 108; see also Linde v. Arab Bank, PLC, 269 F.R.D. 186,
204 (E.D.N.Y. 2010) (precluding evidence); Zubulake, 229 F.R.D. at 436–37 (giving an adverse
inference instruction for willful destruction of emails).
The Court finds such a limited sanction justified here. While, as noted above, there is
sufficient evidence of bad faith to justify an adverse inference sanction, even if Defendants were
only grossly negligent, such conduct is sufficient for the imposition of an adverse inference
sanction. See Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 268–69 (2d Cir. 1999) (noting
that adverse inference and issue preclusion are appropriate sanctions for gross negligence, even
when there is no evidence of bad faith or willfulness); Augstein v. Leslie, No. 11-CV-7512, 2012
WL 4928914, at *5–6 (S.D.N.Y. Oct. 17, 2012) (imposing adverse inference sanction due to “at
least negligent” destruction of hard drive); Chan, 2005 WL 1925579, at *7 (“A showing of gross
negligence is plainly enough to justify sanctions at least as serious as an adverse inference.”);
Shaffer v. RWP Grp., Inc., 169 F.R.D. 19, 26 (E.D.N.Y. 1996) (providing adverse inference
sanction where the defendants destroyed document without finding of willfulness or bad faith).
Because Defendants concealed—and failed to disclose—the relevant Facebook post and
potentially a portion of the accompanying text messages, the jury will be instructed that it may
infer that the contents of the Facebook Post indicated discriminatory animus towards the Hasidic
Jewish population. Defendants also will be precluded from offering evidence to rebut that
specific inference, though they can still present evidence to indicate that the Challenged Laws
were not adopted for discriminatory reasons.
These sanctions are sufficient, as they give Plaintiffs the most powerful inference the jury
could draw from the spoliated evidence, without rebuttal, thereby serving the remedial, punitive,
44
and deterrent purposes of sanctions. See Kronisch, 150 F.3d at 126 (providing adverse
presumption instruction); Daval Steel Prods. v M/V Fakredine, 951 F.2d 1357, 1366 (2d Cir.
1991) (barring party from presenting evidence opposing claim at issue). Any greater sanction
(with the exception of an award of fees, as discussed below)—for example, precluding any
evidence on discriminatory animus of the Challenged Laws at all—would be functionally
equivalent to a terminating sanction in this case, as discriminatory animus is one of the critical
factual contentions at issue, and therefore would be “[in]congruent with the [Defendants’] degree
of culpability.” See Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 288
(S.D.N.Y. 2009); cf. West, 167 F.3d at 780 (suggesting sanctions but leaving their precise form
“to the sound discretion” of the district judge on remand). Indeed, because the portions of the
text messages have “permit[ted] [Plaintiffs] to determine the substance of the” deleted post, see
Miller v. Time-Warner Commc’ns. Inc., No. 07-CV-7286, 1999 WL 749528, at *2 (S.D.N.Y.
Sept. 22, 2009) (noting that the moving party was not prejudiced because it could determine the
substance of an erased writing), an adverse inference instruction is sufficient to address any
prejudice.
Plaintiffs’ request for attorneys’ fees and costs is also warranted. Attorneys’ fees and
costs “may be appropriate to punish the offending party for its actions or to deter the litigant's
conduct, sending the message that egregious conduct will not be tolerated.” Doe v. Norwalk
Community Coll., 248 F.R.D. 372, 381 (D. Conn. 2007) (brackets and internal quotation marks
omitted). Because Defendants appear to have acted in bad faith, the Court awards Plaintiffs the
attorneys’ fees incurred in connection with its Motion for Sanctions. See Dorchester Fin.
Holdings Corp. v. Banco BRJ S.A., 304 F.R.D. 178, 185 (S.D.N.Y. 2014) (“To fully correct the
45
prejudice to [the defendant] from [the plaintiff’s] spoliation, the [c]ourt also orders [the
defendant] to pay [the plaintiff’s] reasonable attorney’s fees and costs in connection with this
spoliation dispute.”).29
3. Plaintiffs’ Rule 56.1 Statements
Local Rules 56.1(a) and (d) require that a moving party file “a separate, short[,] and
concise statement . . . of the material facts to which the moving party contends there is no
genuine issue to be tried,” “followed by citation to evidence.” The purpose of these rules is “to
streamline the consideration of summary judgment motions by freeing district courts from the
need to hunt through voluminous records without guidance from the parties.” Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001). Accordingly, a Rule 56.1 statement “is
not itself a vehicle for making factual assertions that are otherwise unsupported in the record.”
Id. For that reason, “where the record does not support the assertions in a Local 56.1 statement,
those assertions [are] disregarded and the record reviewed independently.” Id.; see also Baity v.
Kralik, 51 F. Supp. 3d 414, 419 (S.D.N.Y. 2014) (finding statements “lack[ing] citations to
admissible evidence” to violate Local Rule 56.1 and Federal Rule of Civil Procedure 56); id. at
*3 (disregarding facts “not supported by citations to admissible evidence in the record”).
Similarly, the Court can also disregard legal conclusions or unsubstantiated opinions in a Local
Rule 56.1 statement. See Am Gen. Life Ins. Co. v. Diana Spira 2005 Irrevocable Life Ins. Trust,
No. 08-CV-6843, 2014 WL 6694502, at *1 (S.D.N.Y. Nov. 25, 2014) (“The Court grants [the
[plaintiff’s] motion to strike as to argumentative statements in the [56.1 statement] and as to
Plaintiffs have until October 31, 2015 to submit evidence of the attorneys’ fees they
seek. Defendants will have two weeks from the date of Plaintiffs’ submission to respond.
29
46
purported factual statements which are unsupported by any citation to the record.”); Epstein v.
Kemper Ins. Co., 210 F. Supp. 2d 308, 314 (S.D.N.Y. 2012) (“Statements in an affidavit or Rule
56.1 statement are inappropriate if they are not based on personal knowledge, contain
inadmissible hearsay, are conclusory or argumentative, or do not cite to supporting evidence.”);
Simmons v. Woodycrest Ctr. For Human Dev., Inc., No. 10-CV-5193, 2011 WL 855942, at *1
n.1 (S.D.N.Y. Mar. 9, 2011) (disregarding portions of the defendants’ Rule 56.1 statement
consisting of legal conclusions or “gross distortions of the summary judgment record”).
Defendants devote nearly half of their Opposition to the contention that Plaintiffs’ Rule
56.1 Statements should be stricken or disregarded. Among other things, Defendants contend that
Plaintiffs’ 56.1 Statements are “nothing short of abusive” and consist of a “voluminous
compendium of assertions, accompanied by opinion-laden declarations, that read[] more like a
complaint, containing allegations, mischaracterizations, opinions[,] and legal conclusions.”
(Defs.’ Opp’n 3.) Indeed, Defendants suggest that Plaintiffs filed their lengthy Rule 56.1
Statements intentionally, using their allegedly deep coffers to “outlast” the Village. (See Defs.’
Opp’n 4 (citing Savad Decl. Ex. 31(C. Babad Dep. Tr.) 107).) Defendants ask that the Court
“us[e] its discretion to strike Plaintiffs’ Statement[s] of Facts in [their] entirety or, alternatively,
consider[] only those paragraphs containing truly undisputed facts, as contemplated by the Local
Rules and the well-developed body of case law.” (Id. at 5.) The Court will take up each of the
flaws that Defendants identify in Plaintiffs’ Rule 56.1 Statements in turn.
First, Defendants are correct that Plaintiffs’ Rule 56.1 Statements are certainly not “short
and concise.” As Defendants point out, Plaintiffs’ main Rule 56.1 Statement is 998 paragraphs
long and is supported by 11 declarations and 370 exhibits. (Id. at 1.) Plaintiffs also submitted a
47
Supplemental Rule 56.1 Statement at the end of their Counter Rule 56.1 Statement, sporting an
additional 43 paragraphs (one of which contains 31 subparagraphs) and 88 additional exhibits.
(See Pls.’ Counter 56.1; Decl. of Paul Savad in Opp’n to Defs.’ Mot. for Summ. J. (Dkt. No.
169).) Plaintiffs’ prolixity is therefore pronounced, and worsened by redundancy; many of the
paragraphs in Plaintiff’s Rule 56.1 Statements are repetitive, some to the point that they are
nearly identical to paragraphs that precede them. (Compare, e.g., Pls.’ 56.1 ¶ 489 (“Housing is
required for the rabbinical college use.”) with id. ¶ 492 (“Providing housing on campus is critical
to the success of the proposed rabbinical college program.”); id. ¶ 50 (“A backlog of cases often
forces Orthodox Jews involved in disputes to go to secular courts.”) with id. ¶ 631 (“The backlog
in religious courts forces Orthodox and Hasidic Jews to go to secular courts.”)). Moreover,
Plaintiffs’ Rule 56.1 Statements should likely have included more paragraphs, as Defendants are
correct that some paragraphs contain multiple factual assertions, which appears to violate the
spirit, if not the explicit text, of Local Rule 56.1. (See, e.g., ¶ 140 (“The Village rushed Local
Law 5 through the legislative process and failed to comply with many required formalities. The
resolution passing Local Law 5 of 2004 did not contain a SEQRA resolution. There were no
studies for Local Law 5 of 2004. The Village does not have any records to suggest that there
was a New York General Municipal Law review of Local Law 5 of 2004.” (citations omitted)).)
Defendants are also correct that some of the statements appear malformed such that they are
difficult to understand, (see, e.g., id. ¶¶ 342 (“Rita Louie, Nick Sanderson”), 384 (“This was
done despite the Village’s knowledge of RLUIPA, since at least 2004 and was proposed by the
Village Board one month after Tartikov was first mentioned RLUIPA at January, 2007
meeting.”), whereas others appear to still contain drafting notes, (see, e.g., ¶ 641 (containing, as
48
explanatory parentheticals, “good quotes re: serving god,” “would take 50 years currently,” and
“don’t live forever”)).
Of course, Plaintiffs are correct that the mere fact that a Local Rule 56.1 statement is
lengthy does not render it in violation of the Rule, see, e.g., Capitol Records, LLC v. Vimeo,
LLC, 972 F. Supp. 2d 500, 509 (S.D.N.Y. 2013) (denying motion to strike and finding that a
“ninety-page, 403-paragraph 56.1 statement” was not “unduly lengthy in light of the numerous
an complex issues raised . . . and the large body of evidence”), and they attempt to justify the
length of their Rule 56.1 Statements on the basis of the volume of discovery and, in particular,
“Defendants’ ‘kitchen sink’ approach” represented by their summary judgment Motion on all
fourteen of Plaintiffs’ causes of action. (Reply Mem. of Law in Supp. of Pls.’ Mot. for Summ. J.
(“Pls.’ Reply”) 7 (Dkt. No. 190).) Even in light of those considerations, Plaintiffs’ Rule 56.1
Statements are unnecessarily lengthy, due especially to the inclusion of redundant or
incomprehensible facts, as discussed above. The Court will disregard all such repetitive or
incomprehensible statements but notes that doing so does not alter the Court’s evaluation of the
pending Motions. Cf. UPS Store, Inc. v. Hagan, — F. Supp. 3d —, 2015 WL 1456654, at *1–*2
(S.D.N.Y. Mar. 24, 2015) (noting that Local Rule 56.1 is designed to “fashion a pragmatic
solution aimed at advancing [the] litigation”).
Second, Defendants contend that Plaintiffs’ Rule 56.1 Statements are “composed
primarily of assertions that are neither relevant nor material to Plaintiffs’ summary judgment
motion.” (Defs. Opp’n 7.) Certainly, “[f]actual disputes which are irrelevant or unnecessary” to
the claims at issue “will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Defendants contend that because Plaintiffs’ facial challenges, by definition, do not
49
address the application of the Challenged Laws to Plaintiffs specifically, but rather look to the
legality of the local laws themselves, “[h]undreds of . . . paragraphs [that] contain statements that
relate specifically to Plaintiffs’ religious practices or the hypothetical development they have
broadly outlined” should be disregarded. (Defs.’ Opp’n 8–9.) As discussed in the next section,
the Court finds that a least some of these factual statements—particularly as they relate to
Plaintiffs’ plans for the rabbinical college and its relationship to Plaintiffs’ religious beliefs—are
relevant to Plaintiffs’ facial claims. The Court therefore declines to make a blanket ruling on the
relevance of Plaintiffs’ Rule 56.1 Statements, although it will, as a matter of course, not consider
irrelevant facts because they are, by nature, not pertinent to the case.
Third, Defendants contend that Plaintiffs’ Rule 56.1 Statements are “replete with
argument, mischaracterizations[,] [and/]or opinions to which Plaintiffs cannot reasonably have
expected Defendants to agree.” (Id. at 9.) Defendants cite a list of facts Plaintiffs represented as
undisputed, many of which, the Court agrees, are clearly in dispute. (See, e.g., Pls.’ 56.1 ¶¶ 580
(“The Village prohibits Plaintiffs’ religious land use . . . by right or by special permit within its
jurisdiction.”), 972 (“Existing Village regulations sufficiently protect the Village’s interest in the
water supply.”).) The Court will not consider these facts as undisputed, though it declines to
outline specifically which paragraphs are implicated because Defendants have indicated their
opposition to them in their Counter Rule 56.1 Statements, meaning they are, for purposes of the
instant motion, disputed.
Fourth, Defendants contend that Plaintiffs’ Rule 56.1 Statements contain improper legal
conclusions. The Court agrees. (See, e.g., Pls.’ 56.1 ¶¶ 483 (“The Village is a ‘jurisdiction,’ and
both the Village and the Board of Trustees are ‘governments’ under RLUIPA.”); 526 (“Shuls,
50
libraries, courtrooms, and classrooms constitute religious exercise and religious land use.”
(italics omitted)).) Even some of the headings to sections of Plaintiffs’ Rule 56.1 Statements
contain impermissible argument or legal conclusion. (See, e.g., id. at 40 (“The Village’s
Targeting of Orthodox/Hasidic Jews and Their Property.”).) As noted above, the Court will
disregard such statements.
Fifth, Defendants contend that certain statements do not support the propositions for
which they are asserted. The Court agrees that, in some circumstances, Plaintiffs’ claims are not
supported by the evidence cited, (see, e.g., id. ¶ 501 (asserting that Defendants have “no facts to
indicate that Plaintiffs’ religious beliefs concerning the need to live with their families are not
sincere,” citing pages of an exhibit that do not exist); id. ¶ 793 (asserting that Defendants had “no
studies or reports demonstrating a need for laws regulating educational institutions in order to
protect its traffic interests” and incorrectly citing Savad Declaration Exhibit 312 rather than
Exhibit 310 for this proposition, the latter of which only indicates that Defendant had no “formal
studies or reports establishing a need for controlling traffic” at the time) (emphasis added)), or
are not accompanied by citations to evidence at all, (see, e.g., id. ¶ 269 (containing no citation to
the record to support assertions about the campaign for the Village Board of Trustees)).
However, as noted above, and as with any other disputed statements of material fact, the Court
will consider the sources for the claims made in dueling Rule 56.1 Statements when they are
disputed, rather than rely on the Rule 56.1 Statements themselves, so there is no need to
separately strike or disregard these statements.
Overall, Defendants claim that the infirmities in Plaintiff’s Rule 56.1 Statements have
“prejudiced” them because they have had to “expend countless hours and considerable sums in
51
order to fashion and appropriate response,” including “verify[ing] each and every one of the 998
‘facts’ asserted.” (Defs’ Opp’n 11–12.) Defendants accordingly ask that the Court strike or
disregard the entirety of Plaintiffs’ Rule 56.1 Statements or, at least, “only consider those
assertions that are properly included pursuant to Local Rule 56.1(a).” (Id. at 12.)
The Court is sympathetic to Defendants’ concerns. Plaintiffs’ Rule 56.1 Statements are
redundant and contrary to the letter and spirit of Local Rule 56.1. Further, Plaintiffs make little
attempt to justify the length of their Rule 56.1 Statements or to respond to the other infirmities
Defendants identified, except as already explained above. (Pls.’ Reply 6–9.) Rather, Plaintiffs
argue that the remedy is “not . . . to strike the statement, but to simply disregard the faulty
sections.” (Pls.’ Reply 18 (citing, inter alia, Ross Univ. Sch. of Med., Ltd. v. Brooklyn-Queens
Health Care, Inc., No. 09-CV-1410, 2012 WL 6091570, at *6 (E.D.N.Y. Dec. 7, 2012), adopted
in part by 2013 WL 1334271 (E.D.N.Y. Mar. 28, 2013)).) The Court agrees that Defendants’
proposed sanction is too severe. Accordingly, the Court will, as outlined above, disregard the
portions of Plaintiffs’ Rule 56.1 Statements that are not compliant with Local Rule 56.1. The
Court also denies Defendants’ request for attorneys’ fees, which is only made in passing in a
footnote, (see Defs.’ Opp’n. 5 n.10), because the Court finds that Plaintiffs’ transgressions are
relatively minor.30
30
There is also a unique issue with Plaintiffs’ Supplemental Rule 56.1 Statement,
namely that it references a large number of statements posted anonymously on websites and
blogs. (See Pls.’ Counter 56.1 97–110 (Pls.’ Suppl. Statement of Facts (“Pls.’ Suppl. 56.1”)) ¶
4.) Because the speaker in each of those anonymous statements is unidentifiable, it is not clear if
the statements at issue can be traced to anyone affiliated with the Village. The Court therefore
finds them irrelevant and will disregard them.
Additionally, in their Reply, Plaintiffs argue that Defendants did not meet their
“obligations” in opposing Plaintiffs’ Rule 56.1 Statements, such that large portions of it should
be deemed admitted. (Pls.’ Reply 4.) Plaintiffs fault Defendants for “reciting verbatim the
52
4. Admissibility of Declarations
a. Legal Standard for Expert Opinions
Defendants lodge several specific challenges to Plaintiffs’ experts. They contend that
“[a]ll but one of Plaintiffs’ expert declarations should be stricken in their entirety, or the
indicated portions disregarded, and the corresponding Statement of Fact paragraphs disregarded
as well.” (Defs.’ Opp’n 12.)
An expert may offer testimony to assist the factfinder in “understand[ing] unfamiliar
terms and concepts.” United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991).31 Federal
Rule of Evidence 702 provides that a witness qualified as an expert may only provide such
testimony if
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
The proponent of expert testimony has the burden of establishing these elements by a
preponderance of the evidence. See United States v. Cruz, 363 F.3d 187, 192 (2d Cir. 2004).
evidence already relied upon by Plaintiffs and/or recharacterizing or restating the cited evidence,
including adding irrelevant facts or legal arguments.” (Id.) While Defendants are under no
obligation to cite different evidence in support of their counter-statements—indeed, they may
simply maintain that the evidence cited by Plaintiffs does not support the proposition in the
statement at issue—the Court, as discussed below, will discount any statements it deems
irrelevant or that constitute legal argument.
31
For example, an expert may testify about the relevant statutory or regulatory
framework. See, e.g., Bilzerian, 926 F.2d at 1294–95 (assisting with federal securities
regulation); In re Fosamax Prods. Liab. Litig., 645 F. Supp. 2d 164, 190–91 (S.D.N.Y. 2009)
(assisting with FDA regulations).
53
The district court must “ensure[] that an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand,” Daubert v. Merrell Dow Pharm., 509 U.S. 579, 800 (1993),
by applying the elements of Rule 702, as well as the relevance standard in Rule 401, see
Amorgianos v. Amtrak, 303 F.3d 256, 265 (2d Cir. 2002) (“In fulfilling this gatekeeping role, the
trial court should look to the standards or Rule 401 in analyzing whether proffered expert
testimony is relevant . . . . and whether the proffered testimony has a sufficiently reliable
foundation to permit it to be considered.” (internal quotation marks omitted)).
“Rule 26 of the Federal Rules of Civil Procedure requires all expert witnesses to submit a
written report that includes a complete statement of all opinions the witness will express[,] the
basis and reasons for them[,] [and] the facts or data considered by the witness in forming them.”
Morrit v. Stryker Corp., No. 07-CV-2319, 2011 WL 3876960, at *5 (E.D.N.Y. Sept. 1, 2011)
(internal quotation marks omitted). Further, Rule 47(c)(1) “provides that a party who fails to
provide information required by Rule 26(a) is not permitted to use that information . . . to supply
evidence on a motion . . . unless the failure was substantially justified or . . . harmless.” Id.; see
also Commercial Data Servers., Inc. v. IBM, 262 F. Supp. 2d 50, 61 (S.D.N.Y. 2003) (“[A] party
that without substantial justification fails to disclose information required by Rule 26(a) . . . is
not, unless such failure is harmless, permitted to use as evidence . . . . on a motion any witness or
information not so disclosed.”). Such a prohibition does not extend to new facts and
“evidentiary details.” See Cedar Petrochem., Inc. v. Dongbu Hannong Chem. Co., Ltd., 769 F.
Supp. 2d 269, 279 (S.D.N.Y. 2011). Accordingly, if a party fails to offer a satisfactory reason
for failing to comply with Rule 26, that fact “weighs very strongly in favor of preclusion.”
Morrit, 2011 WL 3876960, at *6; see also Prendergast v. Hobart Corp., No. 04-CV-4132, 2010
54
WL 3199699, at *5 (E.D.N.Y. Aug. 12, 2010) (finding that the “[p]laintiff had ample time for
expert discovery in this case and has provided no justification for her failure to disclose the
opinions in [the expert’s] affidavit with his expert report or during his deposition,” and that
“[t]he opinions set forth for the first time in [the expert’s] affidavit are therefore properly
stricken on this ground alone.”).
“Because the purpose of summary judgment is to weed out cases in which there is no
genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a
matter of law, it is appropriate for district courts to decide questions regarding the admissibility
of evidence on summary judgment,” where the Court must exercise this “gatekeeper” role.
Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (citations, footnotes, and internal quotation
marks omitted). “Districts courts have broad discretion in determining how to ascertain whether
proffered expert testimony is admissible.” Berk v. St. Vincent’s Hosp. and Medical Ctr., 380 F.
Supp. 2d 334, 351 (S.D.N.Y. 2005). Nonetheless, excluding expert testimony is a “drastic
remedy,” RMED Int’l, Inc. v. Sloan’s Supermarkets, Inc., No. 94-CV-5587, 2002 WL 31780188,
at *3 (S.D.N.Y. Dec. 11, 2002), and should be used sparingly, “even when there has not been
strict compliance with Rule 26,” because exclusion “may at times tend to frustrate the Federal
Rules’ overarching objective of doing substantial justice to litigants.” Scientific Components
Corp. v. Sirenza Microdevices, Inc., No. 03-CV-1851, 2008 WL 4911440, at *4 (E.D.N.Y. Nov.
13, 2008).
b. Application to Experts
Defendants first contend that the declarations prepared by Plaintiffs’ Wetlands, Traffic,
Planning, and Architecture Experts—Barbara Beall (“Beall”), William Fitzpatrick
55
(“Fitzpatrick”), Alan Weinstein (“Weinstein), and Susannah Drake (“Drake”)—should be
stricken because they are irrelevant to a facial challenge. (See Defs.’ Opp’n 14.)
Before proceeding to the specific challenges to each expert, two overall contentions are
worth addressing. First, as described in the next section, the Court finds Defendants’ contention
that the experts’ findings “would only be relevant [to] an as-applied challenge,” (id.), to be
without merit. The effect of the Challenged Laws on Plaintiffs is not only relevant to their
discrimination claims, but is also suggestive of the degree to which the Challenged Laws may
affect other religious groups. The Court therefore denies Defendants’ relevance challenge.32
Second, Defendants contend that the declarations at issue contain opinions not disclosed in the
expert reports, as required by Rule 26. (See Defs.’ Opp’n 13–14.) In support of this claim,
Defendants only identify paragraphs which they claim were not disclosed. Plaintiffs contest
Defendants’ claim, arguing that “[e]ach opinion stated by the expert witnesses was disclosed to
the Defendants in either the initial or rebuttal reports,” citing supporting evidence and contending
that some of the supposedly new opinions just contain new facts or elaborations on previously
disclosed opinions. (Pls.’ Reply 12–13 (citing Reply Decl. of Paul Savad in Supp. of Pls.’ Mot.
for Summ. J. (“Savad Reply Decl.”) Ex. 417 (documenting disclosures) (Dkt. No. 191).) The
Court is satisfied that Plaintiffs disclosed the reports at issue and therefore denies Defendants’
Rule-26-based challenge. (See, e.g., Beall Decl. ¶¶ 16, 19 (discussing, in paragraph 19, Ulman’s
statement that there may be another lot in the Village that is larger than 10 acres, which is an
elaboration on Beall’s previously-disclosed opinion, embodied in paragraph 16, that “there are
The same applies to Defendants’ relevance challenge to the declarations of the
individual Plaintiffs and that of Plaintiffs’ expert, Steven H. Resnicoff, an expert in Jewish
religion and law.
56
32
no other available vacant lots within the Village of Pomona that could support an educational
institution besides the Subject [Property]”).)
Regarding specific expert opinions, Defendants first challenge the Beall Declaration,
Plaintiffs’ wetlands expert, on a few grounds. First, Defendant contends that Beall discusses
matters beyond her expertise, including “the Village’s Master Plan, the utility of the SEQRA
process, and the Village’s laws related to Educational Institutions and Dormitories.” (Defs.’
Opp’n 15 (citations omitted).) While Defendants’ discussion of this issue is rather flippant, the
Court agrees that Beall does, at times, venture past her area of expertise in her declaration. (See,
e.g., Beall Decl. ¶ 231 (declaring that “automotive repair schools [and] driving schools . . . . can
be accredited by various accrediting bodies”). The Court will disregard those statements in
considering the pending Motions for Summary Judgment, without prejudice to Defendants’
renewing their Motion to Strike. See Takeda Chem. Industr., Ltd. v. Mylan Labs., Inc., Nos. 03CV-8253 et al., 2006 WL 44053, at *2 (S.D.N.Y. Jan. 9, 2006) (striking portions of expert’s
opinion that “fall far outside the realm” of his “area of . . . expertise”).
Second, Defendants contend that Beall improperly offers “legal conclusions and policy
analysis.” (Defs.’ Opp’n 16.). The Court is not convinced that Beall cannot engage in “policy
analysis” related to wetlands use, nor does the mere use of legal jargon, or reference to laws that
govern wetlands use, render an opinion a “legal conclusion.” Therefore, the vast majority of
Beall’s opinions are admissible. However, the Court will exclude any statements that cross the
line from policy analysis to pure legal conclusions, such as when Beall only interprets the
applicable law itself. (See, e.g., Beall Decl. ¶¶ 113–122 (stating, and explaining, legal
conclusion that the Wetlands Law was not necessary for the Village to comply with federal or
57
statute statutory requirements); ¶ 257 (“The Village has the authority to complete an EIS review
under SEQRA for an educational institutional project.”).) See Jones v. Midland Funding, LLC,
616 F. Supp. 2d 224, 227 (D. Conn. 2009) (“An expert should not be permitted to express an
opinion that is merely an interpretation of federal statutes or regulations, as that is the sole
province of the [c]ourt.” (brackets and internal quotation marks omitted)). This holding is again
without prejudice to Defendants’ renewing their Motion To Strike.
Third, Defendants contend that the Beall Declaration “should be stricken or disregarded
in substantial part because it is based on speculation and/or lacks any reliable methodology.”
(Defs.’ Opp’n 16.) Defendants allege, more specifically, that Beall “makes sweeping statements
with little or no support,” and “purports to apply methodologies that are unreliable at best,” e.g.,
identifying wetlands by looking at aerial photos and maps. (Defs.’ Opp’n 17.) While the Court
will consider the evidence cited—which properly may, as Plaintiffs point out, be personal
knowledge, (see Pls.’ Reply 11); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150
(1999) (noting that expert testimony may be based on “personal knowledge or experience”)—to
assess the probative value of Beall’s testimony, Defendants’ fleeting challenge to Beall’s
conclusions and methodology, without evidence or support for that challenge beyond citation to
a couple of paragraphs in the Beall Declaration, is unsubstantiated. See Teva Pharmaceuticals
USA, Inc. v. Sandoz, Inc., 749 F. Supp. 2d 130, 132 (S.D.N.Y. 2010) (denying motion for
summary judgment in part because challenge to expert’s methods consisted of “nothing more
than attorney argument,” and the “[d]efendants did not offer the opinion of a single expert
discrediting or casting doubt on [the expert’s] methodology”). Further, given Beall has
identified support for her conclusions throughout her report, the Court finds that her opinions are
58
admissible, and that Defendants’ objections, at best, go to weight. See Amorgianos, 303 F.3d at
267 (“Where an expert otherwise reliably utilizes ... methods to reach a conclusion, lack of
textual support may go to the weight, not the admissibility[,] of the expert’s testimony.”);
Cohalan v. Genie Indus., Inc., No. 10–CV–2415, 2013 WL 829150, at *5 (S.D.N.Y. Mar. 1,
2013) (“‘Disputes as to the strength of [an expert’s] credentials, faults in his use of different
etiology as a methodology, or lack of textual authority for his opinion, go to the weight, not the
admissibility of his testimony.’” (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d
Cir.1995))); Quiles v. Bradford–White Corp., No. 10–CV–0747, 2012 WL 1355262, at *3
(N.D.N.Y. Apr. 18, 2012) (“‘[G]aps or inconsistencies' in an expert's reasoning, or arguments
that an expert's conclusions are wrong, ‘go to the weight of the evidence, not to its
admissibility.’”) (quoting Campbell v. Metro. Prop. and Cas. Ins. Co., 239 F.3d 179, 186 (2d
Cir. 2001)); CIT Group/Bus. Credit, Inc. v. Graco Fishing and Rental Tools, Inc., 815 F. Supp.
2d 673, 676 (S.D.N.Y. 2011) (“Questions about the . . . sufficiency of the evidence upon which
the expert relied . . . are for cross-examination.”); see also MBIA Ins. Corp. v. Patriarch Partners
VIII, LLC, No. 09–CV–3255, 2012 WL 2568972, at * 15 (S.D.N.Y. July 3, 2012) (“Indeed, most
objections to expert testimony are related only to the weight of the evidence, not its
admissibility.”). Accordingly, Defendants’ Motion to Strike the Beall Declaration is denied in its
entirety without prejudice.
Defendants next challenge the Declaration of Fitzpatrick, Plaintiffs’ traffic expert.
According to Defendants, Fitzpatrick’s opinions are “entirely unsupported” because Plaintiffs’
rabbinical college is hypothetical, and because Plaintiffs “have not provided any site plans,
estimated traffic volumes, attendance or population estimates[,] or any other information that
59
might in some way substantiate his analysis.” (Defs.’ Opp’n 17.) Defendants provide no support
for the contention that Fitzpatrick is required to rely on previously provided reports on traffic
volumes and population estimates, nor do they levy specific challenges to the particular
conclusion that Fitzpatrick draws. See Astra Aktiebolag v. Andrx Pharm., Inc., 222 F. Supp. 2d
423, 491 (S.D.N.Y. 2002) (denying motion to strike portions of expert’s testimony and report
because “[p]ursuant to Rule 703, an expert may rely on any facts or data ‘of a type reasonably
relied upon by experts in the particular field,’ including facts, data, and opinions that are
otherwise inadmissible. There is no requirement that an expert must run his own tests.”).
Moreover, Fitzpatrick’s opinions appear to be, for the most part, supported. (See, e.g., Decl. of
William D. Fitzpatrick ¶¶ 35 (citing aerial view of intersection in support of its description), 49
(noting that “the basis in professional traffic engineering for estimating traffic generation for a
site . . . is the proper application of the Institute of Transportation Engineering (ITS) published
database”), 54 (describing ITS database methodology); 120–173 (describing University/College
ITS database reference, and assessing traffic impact under a variety of conditions) (Dkt. No.
152).) The Court accordingly denies Defendants’ Motion to Strike the Fitzpatrick Declaration,
without prejudice.
Defendants also challenge the Declaration of Weinstein, Plaintiffs’ planning expert,
“because it contains conclusions of law, conclusory expert opinions not supported by appropriate
evidence, expert opinions not previously disclosed . . . . , and opinions not relevant to a facial
challenge.” (Defs.’ Mem. 18) The Court agrees in part. While the Court finds that Weinstein’s
opinions were previously disclosed, even if they have changed slightly from their initial form,
(see Defs.’ Opp’n Ex. D (noting, for example, that Weinstein’s initial expert report indicated that
60
38 New York jurisdictions have an accreditation requirement, and that Weinstein’s Declaration
changed that number to five); see also Newell Puerto Rico, Ltd. v. Rubbermaid Inc., 20 F.3d 15,
22 (1st Cir. 1994) (finding that “[i]t is not unusual for experts to make changes in their opinions
and revise their analyses and reports frequently in preparation for, and sometimes even during, a
trial”), and that, as discussed below, Weinstein’s opinions that are specific to the proposed
rabbinical college are still relevant to Plaintiffs’ facial challenge, (see, e.g., Decl. of Alan C.
Weinstein ¶ 34 (Dkt. No. 143) (noting that dormitory space is especially important for the
proposed rabbinical college because “of the length of the program of instruction”), the
declaration does contain several unsupported opinions and improper legal conclusions. For
example, with respect to the former, Weinstein’s discussion of the proposed rabbinical college’s
“focused curriculum and mode of instruction” only cites unidentified “information . . . received
from Michael Tauber.” (Id. ¶ 29). With respect to legal conclusions, Weinstein improperly
determines that the Challenged Laws prohibit the construction of a rabbinical college, (see, e.g.,
id. ¶ 10 (concluding that the Accreditation Law “totally exclude[s]” “an unaccredited [r]abbinical
[c]ollege”)) and defines an “accessory use” as “one that is subordinate and incidental to the
primary use,” (id. ¶ 50). The Court will disregard such unsupported statements or legal
conclusions. Once again, this ruling is without prejudice to Defendants’ renewing their Motion
to Strike.
Defendants also challenge the Declaration of Drake, Plaintiffs’ Architecture expert,
arguing that it “fails to meet the required evidentiary standards under Daubert.” (Defs.’ Mem.
19.) Defendants specifically contend that the Drake Declaration “gives no indication that
[Drake] has ever had any experience . . . with a rabbinical college, a Torah Community, or, for
61
that matter, any type of religious institution of higher education,” and that she also “has no idea
of the nature, size, shape, capacity[,] or intended location of any of the structure that Plaintiffs
intend to build at the subject site,” and if the proposed rabbinical college is at all comparable to
the universities she uses as comparators. (Id. at 20–21.) The Court disagrees. While Defendants
are correct that Drake has no information about the exact plans for the rabbinical college, it is
entirely within the scope of her expertise to opine, based on her knowledge of the field and her
investigation of the Subject Property, on ways in which the community impact of a rabbinical
college may be minimized. Indeed, two of the paragraphs that Defendants specifically identify
as flawed proceed in precisely this way; Drake opines that a rabbinical college can be built in a
way that is sensitive to the surrounding community, (see Declaration of Susannah C. Drake ¶ 15
(Dkt. No. 154)), and provides examples of how that can be achieved, e.g., by using building
materials that blend into the surrounding landscape, (see id. ¶ 21). Accordingly, the Court will
not strike the Drake Declaration on this basis, without prejudice to Defendants’ renewing their
Motion to Strike.
c. Tauber Declaration
Relatedly, Defendants challenge the Declaration of M. Tauber, “Tartikov’s principal,” on
several grounds, including relevance and the inclusion of opinion testimony, information beyond
Tauber’s personal knowledge, and legal conclusions. (Defs.’ Mem. 22–23.) The same standards
with regard to legal conclusions and opinions apply to his Declaration, and personal knowledge
is required for admissibility. See DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (“[W]here a
party relies on affidavits . . . to establish facts, the statements ‘must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is
62
competent to testify on the matters stated.’” (quoting Fed. R. Civ. P. 56(c)(4)) (citing Fed. R.
Evid. 602)); Sellers v. M.C. Floor Crafters, Inc,, 842 F.2d 639, 643 (2d Cir. 1988) (“Rule 56
requires a motion for summary judgment to be supported with affidavits based on personal
knowledge.”); Baity, 51 F. Supp. 3d at 419 (disregarding “statements not based on [the]
[p]laintiff’s personal knowledge”); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 163112, at *5
(S.D.N.Y. Jan. 24, 2007) (“The test for admissibility is whether a reasonable trier of fact could
believe the witness had personal knowledge.” (internal quotation marks omitted)).
While the relevance challenge is meritless for the reasons discussed below, Defendant is
correct that there are inadmissible statements in the Tauber Declaration. It contains statements
that are unsupported by personal knowledge, (see, e.g., Tauber Decl. ¶ 7 (Dkt. No. 148) (“Every
student who will attend the [r]abbinical college is compelled by his religious beliefs to pursue
this study.”)), statements that are unhelpful lay opinion, (see id. ¶ 14 (“I know that there is a
great shortage of qualified rabbinical judges who can resolve issues according to the true
meaning of our religious laws.”), and statements that are improper legal conclusions, (see id. ¶
41 (explaining that the process for “a zone/text amendment or variance . . . is a long and
discretionary process”)). The Court will disregard such statements, but otherwise not strike the
Declaration. This ruling is, once again, without prejudice to Defendants’ refiling their Motion to
Strike.
5. Governing Standards for a Facial Challenge
As the Court previously noted, “[f]acial invalidation is, manifestly, strong medicine that
has been employed by [courts] sparingly and only as a last resort,” wherein a plaintiff has a
“heavy burden in advancing her claim.” Nat’l Endowment for the Arts v. Finley, 524 U.S. 569,
63
580 (1998) (internal quotation marks omitted); see also Cranley v. Nat’l Life Ins. Co. of Vt., 318
F.3d 105, 110 (2d Cir. 2003) (“A plaintiff making a facial claim faces an uphill battle because it
is difficult to demonstrate that the mere enactment of a piece of legislation violates the plaintiff’s
constitutional rights.”). The oft-cited standard for facial challenges is derived from dicta in
United States v. Salerno, 481 U.S. 739 (1987), wherein Chief Justice Rehnquist wrote that “the
challenger must establish that no set of circumstances exists under which the [challenged law]
would be valid.” Id. at 745. Defendants spill substantial ink pressing the Salerno formulation in
their briefing, arguing that Plaintiffs need to show that the Challenged Laws are unconstitutional
“in all applications.” (Defs.’ Mem. 7; see also Defs.’ Opp’n 1 (“It is well-established that the
inquiry in a facial challenge, as opposed to an as-applied challenge, is whether the challenged
provisions are ever capable of constitutional application.”); id. at 8 (“Rather, the crux of the
inquiry in this straightforward facial challenge is whether the challenged laws can ever be
capable of constitutional application.”). It is for this reason that Defendants often contend that
Plaintiffs’ “religious practices” and “the specifications of their still-hypothetical rabbinical
college” are “immaterial and irrelevant,” (Defs.’ Opp’n 1; see also id. at 9 (contending that facts
about “Plaintiffs’ religious practices or the hypothetical development they have broadly
outlined” are “not relevant or material to the discussion, which should focus on the
circumstances surrounding the consideration and passage of the Code Provisions.”), arguing that
facial challenges “do not take into account the facts and circumstances of particular plaintiffs,”
(id. at 8). Defendants do recognize an exception for facial challenges made pursuant to the Free
Exercise Clause, “when a facially neutral law targets a particular religious entity,” (id. (citing,
inter alia, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 544 (1993)), but they
64
argue that such exception does not apply in this case, (id.; see also id. at 24 (“The Lukami
exception to the entrenched facial challenge doctrine has no purchase [sic] in this case because
none of the challenged laws burden Plaintiffs’ hypothetical plan and they do not burden other
developers’ actions, religious or not.”)).
As this Court previously explained, Defendants are correct that “[a] facial challenge is
one that addresses not the application of an ordinance to a particular set of plaintiffs, but the
legality of the ordinance itself.” Tartikov, 915 F. Supp. 2d at 611 (brackets, alterations, and
internal quotation marks omitted). And, despite criticism among commentators and some courts,
there is a substantial body of case law that indicates the Salerno standard remains controlling, at
least insofar as the standard’s inverse is true: a law must have a “plainly legitimate sweep” to be
constitutional. See, e.g., Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
449 (2008) (applying this standard); United States v. Decastro, 682 F.3d 160, 168 (2d Cir. 2012)
(noting that a party making a facial challenge must show that “no set of circumstances exists
under which the statute would be valid, i.e., that the law is unconstitutional in all of its
applications, or at least that it lacks a plainly legitimate sweep” (internal quotation marks and
brackets omitted)); see also United States v. Booker, 543 U.S. 220, 275 (2005) (“[I]t is
abundantly clear that the fact that a statute, or any provision of a statute, is unconstitutional in a
portion of its applications does not render the statute or provision invalid . . . .”).
However, there are exceptions to the Salerno standard. First, it plainly does not apply to
First Amendment claims. See United States v. Farhane, 634 F.3d 127, 138–39 (2d Cir. 2011)
(acknowledging that the Salerno standard is not be applicable to First Amendment claims);
Lerman, 232 F.3d at 144 (“Salerno, however, does not apply to this case, in which the plaintiffs
65
assert the violation of rights protected by the First Amendment.”); see also Finley, 524 U.S. at
580 (“To prevail [on a facial challenge], respondents must demonstrate a substantial risk that
application of the provision will lead to the suppression of speech.”). Second, in its 2013
Opinion and Order, the Court found that the Salerno line of cases is distinguishable from the
instant case because no case in the Salerno line “involved allegations of discriminatory animus
grounded in race or religion.” Tartikov, 915 F. Supp. at 613 n.18. Thus, the Court noted that the
Salerno test would be met if the Challenged Laws violate Plaintiffs’ Equal Protection or Free
Exercise rights because “a law that violates the Equal Protection Clause or the Free Exercise
Clause will be invalid when applied under any conceivable circumstance, even if it can be
justified by a conceivably benign motive.” Id.33 This ruling is law of the case, see Brentwood
Pain & Rehab. Servs., P.C. v. Allstate Ins. Co., 508 F. Supp. 2d 278, 288 (S.D.N.Y. 2007) (citing
In re PCH Assocs., 949 F.3d 585, 592 (2d Cir. 1991)); see also United States v. Plugh, 648 F.3d
118, 123 (2d Cir. 2011) (explaining that “[a]s a general matter . . . [a court should] adhere to its
own decision at an earlier stage of the litigation” (internal quotation marks omitted)), and
Defendants have failed to point to any “extraordinary circumstances” justifying its
33
The Court also found motive to be relevant to Plaintiffs’ facial challenges, which
Defendants do not contest at this stage of the litigation. See Tartikov, 915 F. Supp. 2d at 611–14;
see also Santa Fe Independent Sch. Distr. v. Doe, 530 U.S. 290, 317 (2000) (noting that it is
proper for courts to examine the purpose of a law when facially challenged); Meats, Inc. v.
Weiss, 294 F.3d 415, 425 (2d Cir. 2002) (same); cf. Gray v. City of Valley Park, Mo., No. 07CV-881, 2008 WL 294294, at *19 n.26 (E.D. Mo. Jan. 31, 2008) (noting that a facial challenge
may be based on the theory that an ordinance was “passed with discriminatory intent”); Nev.
Fair Hous. Ctr., Inc. v. Clark County, 565 F. Supp. 2d 1178, 1187 (D. Nev. 2008) (noting that
while “legislative motive is irrelevant to a facial challenge . . . evidence of some intent to
disadvantage a class of people makes the determination of the basis for the overt disparate
treatment much easier”). But see Estvanko v. City of Perry, No. 09-CV-137, 2010 WL 4812996,
at *3 (M.D. Ga. Nov. 17, 2010) (“When a facial challenge is made, the motive of the drafters of
the ordinance is irrelevant.”)
66
reconsideration, see N. River Ins. Co. v. Phila. Reins. Corp., 63 F.3d 160, 165 (2d Cir. 1995)
(noting that a court should be “loathe to revisit an earlier decision in the absence of extraordinary
circumstances” (internal quotation marks omitted)); Bellezza v. Holland, No. 09-CV-8434, 2011
WL 2848141, at *3 (S.D.N.Y. July 12, 2011) (defining extraordinary circumstances as “cogent
or compelling reasons not to [follow the earlier decision], such as an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error to prevent
manifest injustice” (internal quotation marks omitted)). Further, there is ample precedent
supporting the Court’s ruling, including some cases suggesting that Salerno is no longer the
governing standard for facial challenges at all. See City of Chicago v. Morales, 527 U.S. 41, 54
n.2 (1999) (plurality opinion) (“To the extent we have articulated a clear standard for facial
challenges, it is not the Salerno formulation, which has never been the decisive factor in any
decision of this Court, including Salerno itself . . . “); Farrell v. Burke, 449 F.3d 470, 496 n.12
(2d Cir. 2006) (“[I]t appears that the Supreme Court might decline to apply the ‘impermissibly
vague in all applications’ standard for facial challenges wherever fundamental rights are at stake,
not merely in those cases where First Amendment rights are at stake.”); accord Doe v. City of
Albuquerque, 667 F.3d 1111, 1124 (10th Cir. 2012) (“The idea that the Supreme Court applies
the ‘no set of circumstances’ test to every facial challenge is simply a fiction, readily dispelled
by a plethora of Supreme Court authority.” (collecting cases)); A Woman’s Choice-East Side
Women’s Clinic v. Newman, 305 F.3d 684, 687 (7th Cir. 2002) (finding that the Salerno test is a
“suggestion” and that it “must give way” to more recent Supreme Court precedent (internal
quotation marks omitted) (citing, inter alia, Sternberg v. Carhart, 540 U.S. 914 (2000))); cf.
United States v. Frandsen, 212 F.3d 1231, 1235 n.3 (11th Cir. 2000) (explaining that the Salerno
67
test “has been subject to a heated debate in the Supreme Court, where it has not been consistently
followed”); Inturri v. City of Hartford, 365 F. Supp. 2d 240, 253 n.13 (D. Conn. 2005)
(“Although in some limited situations a facial challenge to a statute that does not implicate the
First Amendment may be brought, there is considerable disagreement as to what standard would
be applied.”).34 But see S.D. Myers, Inc. v. City and Cty. of S.F., 253 F.3d 461 (9th Cir. 2001)
(“While we have held that Casey overruled Salerno in the context of facial challenges to abortion
statutes, we will not reject Salerno in other contexts until a majority of the Supreme Court
clearly directs us to do so.” (citation and internal quotation marks omitted)); United States v.
Arzberger, 592 F. Supp. 2d 590, 599 (S.D.N.Y. 2008) (noting that Salerno, despite criticism,
remains “the basis for evaluating facial constitutional challenges in the Second Circuit”).
Third, in the context of the Free Exercise Clause, despite Defendants’ claim to the
contrary, Church of the Lukumi Babalu Aye, Inc. v. City Hialeah, 508 U.S. 520 (1993), offers an
alternate, directly applicable standard to apply, as it provides that “government, in pursuit of
legitimate interests, cannot in a selective manner impose burdens on conduct motivated by
religious belief.” Id. at 543. See also Cent. Rabbinical Congress v. N.Y. City Dep’t of Health &
Mental Hygiene, 763 F.3d 183, 196 (2d Cir. 2014) (“But where some purposeful and exclusive
regulation exists—where the object of the law is itself the regulation of religious conduct—the
law is subject to heightened scrutiny, and not to rational basis review.”); Commack Self-Serv.
Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 220 (2d Cir. 2012) (applying this standard to a
As the Tenth Circuit explained, even after Salerno, the Supreme Court “has repeatedly
considered facial challenges simply by applying the relevant constitutional test to the challenged
statute without attempting to conjure up whether or not there is a hypothetical situation in which
application of the statute might be valid.” Doe, 667 F.3d at 1124.
68
34
facial challenge under the Free Exercise Clause). Accordingly, Salerno is not the appropriate
standard to apply here.
More generally, based on broader principles of constitutional analysis, Plaintiffs’
experience is also appropriately the backbone of their constitutional claims. In general, “[t]he
proper focus of constitutional inquiry is the group for whom the law is a restriction.” Planned
Parenthood of SE Pa. v. Casey, 505 U.S. 844, 894 (1992); see also Al Falah Ctr. v. Twp. of
Bridgewater, No. 11-CV-2391, Slip Op. at 12–14 (D.N.J. Sept. 30, 2013) (denying summary
judgment to the defendants on First and Fourteenth Amendment facial challenges based on the
challenged law’s impact on the plaintiff and the defendant’s motivation for passing that law).
Here, the effect of the Challenged Laws on Plaintiffs is relevant to determining whether the
Challenged Laws were discriminatory under the Equal Protection Clause and/or targeted at
religious practice under Lukumi (and the Free Exercise Clause), and may be suggestive of the
effect they have on other religious groups. Moreover, given the Court “must be careful not to go
beyond the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’
cases,” Wash. State Grange, 552 U.S. at 449–50, Plaintiffs’ experience is especially important as
a source of evidence on the constitutionality of the Challenged Laws, see Doe, 667 F.3d at 1123–
24, 1127–28 (analyzing, in the context of a facial challenge, the particular circumstances of the
plaintiffs and noting that it is proper to “appl[y] the appropriate constitutional test to the
restriction at issue,” rather than “conjur[ing] up whether or not there is a hypothetical situation in
which application of the statute might be valid”); Cty. Concrete Corp v. Town of Roxbury, 442
F.3d 159, 167 (3d Cir. 2006) (finding allegations that the defendant township “knew exactly how
[the] appellants intended to use their land and passed [an] [o]rdinance specifically tailored to
69
prevent that use” to constitute a ripe facial challenge to that ordinance); Dibbs v. Hillsborough
Cty., 67 F. Supp. 3d 1340, 1349–50 (M.D. Fla. 2014) (“A property owner makes a facial
challenge by claiming that a municipality knew exactly how he intended to use his property and
passed an ordinance specifically tailored to prevent that use.” (internal quotation marks
omitted)); Cornell Cos., Inc., v. Borough of New Morgan, 512 F. Supp. 2d 238, 258 (E.D. Pa.
2007) (“The basis of an EPC facial challenge is that the mere enactment of the ordinances
violates the EPC because it treats the plaintiff’s property differently than other similarly situated
landowners.”).
Of course, this does not mean that an extended discussion of Jewish Law, the nature of a
Torah Community, or the Congregation’s history, among other things, necessarily are dispositive
in this case. As discussed above, the unwieldiness of Plaintiffs’ Rule 56.1 Statement is partially
due to the repetitive inclusion of facts of this sort, which may or may not even be relevant to an
as-applied challenge. Nonetheless, Defendants err in their wholesale dismissal of facts specific
to Plaintiffs’ experience, because it is that experience that may be the only way for the Court or a
fact-finder to determine whether the Challenged Laws are facially constitutional.
6. Equal Protection (Claim 4)
In their Fourth Claim, Plaintiffs allege that Defendants have violated the Equal Protection
Clause of the Fourteenth Amendment. (See SAC ¶¶ 260–63.) The Equal Protection Clause “is
essentially a direction that all persons similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see also Harlen Assocs. v. Inc. Vill.
of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (same). “Plaintiffs challenging . . . facially neutral
laws on equal protection grounds bear the burden of making out a prima facie case of
70
discriminatory purpose.” Pyke v. Cuomo, 567 F.3d 74, 78 (2d Cir. 2009); see also Tartikov, 915
F. Supp. 2d 574, 614 (“To prove an equal protection violation, claimants must prove purposeful
discrimination by a government actor, directed at a suspect class, such as a racial group, or a
religion.” (citations and internal quotation marks omitted)). If Plaintiffs make such a showing,
the government action at issue is “subject to strict judicial scrutiny,” such that the law may be
upheld only if it “further[s] a compelling state interest and [is] narrowly tailored to accomplish
[that] purpose.” Pyke, 567 F.3d at 77.
Plaintiffs may establish an equal protection violation by identifying (1) “a law that
expressly classifies on the basis of race,” (2) “a facially neutral law or policy that has been
applied in an unlawfully discriminatory manner,” or (3) “a facially neutral [law or] policy that
has an adverse effect and that was motivated by discriminatory animus.” Id. As the Court
previously held, Plaintiffs rely on the third method here. See Tartikov, 915 F. Supp. 2d at 615;
see also Jana-Rock Constr., Inc. v. N.Y.S. Dep’t of Econ. Dec., 438 F.3d 195, 204 (2d Cir. 2006)
(noting that the Equal Protection Clause is violated, unless justified by strict scrutiny, when
government action is “motivated by discriminatory animus and its application results in
discriminatory effect” (citations omitted)).
a. Discriminatory Purpose
“Discriminatory purpose implies that the decisionmaker . . . selected or reaffirmed a
particular course of action at least in part because of, not merely in spite of, its adverse effects
upon an identifiable group.” Hayden v. Cty. of Nassau, 180 F.3d 42, 50 (2d Cir. 1999) (internal
quotation marks omitted). Though the desire to discriminate need not be the sole motivating
factor, see Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)
71
(“Rarely can it be said that a legislature or administrative body operating under a broad mandate
made a decision motivated solely by a single concern, or even that a particular purpose was the
‘dominant’ or ‘primary’ one.”), a plaintiff will only “be permitted to take his case to trial if he
proffers evidence that strongly indicates that discrimination was a significant reason for a public
body’s actions and the defendant body, or its members, fails to counter that evidence with its
own clear evidence that a majority acted with permissible motives,” Cine SK8, Inc. v. Town of
Henrietta, 507 F.3d 778, 786 (2d Cir. 2007). “Determining whether invidious discriminatory
purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.” Arlington Heights, 429 U.S. at 266 (internal quotation
marks omitted). In assessing discriminatory intent in the land use context, courts consider “the
series of events leading up to a land use decision, the context in which the decision was made,
whether the decision or decisionmkaing process departed from established norms, statements
made by the decisionmaking body and community members, reports issued by the
decisionmaking body, whether a discriminatory impact was foreseeable, and whether less
discriminatory avenues were available.” Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield
Historic Dist. Comm’n, 768 F.3d 183, 199 (2d Cir. 2014); see also id. (“Discriminatory intent
may be inferred from the totality of the circumstances,” including “historical background” and
“contemporary statements made by the decision-making body,” or “by showing that animus
against the protected group was a significant factor in the position taken by the municipal
decision-makers themselves or by those to whom the decision-makers were knowingly
responsive.”); LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995) (same); United
States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1221 (2d Cir. 1987) (explaining that “[i]ntent to
72
discriminate may be established in a number of ways,” and may be “inferred from the totality of
the relevant facts,” including “historical background . . . particularly if it reveals a series of
official actions taken for invidious purposes; [and] the specific sequence of events leading up to
the challenged decision, such as zoning changes for a given site enacted upon . . . learning of [the
plaintiff’s] plans for . . . construction” (alterations and internal quotation marks omitted) (quoting
Arlington Heights, 429 U.S. at 267–68)). However, Plaintiffs cannot rely on mere conclusory
allegations to establish this element of their Equal Protection claim. See Tiraco v. N.Y.S. Bd. of
Elections, 963 F. Supp. 2d 184 (E.D.N.Y. Aug. 7, 2013) (“[The] [p]laintiff’s conclusory
allegations likewise fail to state a viable Fourteenth Amendment equal protection claim.”); 33
Seminary LLC v. City of Binghamton, 869 F. Supp. 2d 282, 310 (N.D.N.Y. 2012) (finding the
plaintiff’s allegations insufficient because they were “wholly conclusory”).
There is ample evidence in the record to make the question of discriminatory purpose a
disputed fact. First, there is the timing of the Challenged Laws. With regard to the Accreditation
Law, the relevant provisions of which were adopted in January 2001 and amended in September
2004, while the Parties dispute exactly what the nexus of the relevant local laws was, they agree
that, in January 2000, the Village Planner circulated memos entitled “Proposed Primary School
and Pre-School ([Yeshiva Spring Valley] Pomona) and the Village Zoning Regulations regarding
Schools,” recommending that the Village adopt zoning laws for schools, which were otherwise
“scant.” (Pls.’ 56.1 ¶¶ 123–24.) Mayor Marshall at the time stated, in the context of the
Accreditation Law, that “[t]hey[],” presumably the Orthodox Jews behind the Yeshiva, “[are]
going to come in and we’re going to be caught with our pants down if we don’t move.” (Pls.’
56.1 ¶ 126 (citing Savad Decl. Ex. 3 (Marshall Tr.) 96–98).) Additionally, in 2004, the year that
73
the Accreditation Law was amended, Yeshiva Spring Valley had its tax-exempt status denied for
the first time, the Congregation purchased the Subject Property, and the Village participated in a
lawsuit filed to challenge Ramapo’s adoption of the ASHL. (Pls.’ 56.1 ¶¶ 4, 99, 138, 324, 360;
Defs.’ 56.1 ¶¶ 138.) Moreover, while Ulman indicated that the Accreditation Law was passed to
“strengthen the Village’s control over schools,” (Pls.’ 56.1 ¶ 144; Defs.’ Counter 56.1 ¶ 144),
since 2001 there have been no schools or higher education institutions of any kind in the Village,
(Pls.’ 56.1 ¶ 143). Also in 2004, the Village passed a resolution noting that the Board of
Trustees “opposes in the strongest possible terms any public officials who abdicate their
responsibility of office by placing the politics of special interest groups and individual
developers ahead of the best interest of the people they are committed to serve.” (Savad Decl.
Ex. 179 (Jan. 26, 2004 Board of Trustees meeting minutes), at 2–3) Ulman admitted that
Orthodox Hasidic Jews are one such special interest group. (See Savad Decl. Ex. 15 (Ulman
Decl.) 979.) Therefore, even if Defendants were not aware until November of 2004 that the
Congregation had purchased the Subject Property and that it would be used for a rabbinical
college, (see Pls.’ 56.1 ¶¶ 148–49), the evidence suggests that Defendants were at least aware of
the growth of Orthodox/Hasidic community in Ramapo prior to that time, and that this
community may have sought to expand in the Village through educational institutions, at the
time of the passage of the relevant portions of the Accreditation Law in January 2001, as
amended in September 2004.
With regard to the Dormitory Law, the relevant provisions of which were adopted in
September 2004 and January 2007 at the aforementioned January 22, 2007 meeting, Mayor
Marshall reported that there was “a hostility” among attendees “engendered from [an] article in
74
The Journal News regarding the Tartikov project,” (Pls.’ 56.1 ¶ 161 (citing Savad Decl. Ex. 3
(Marshall Tr.) 176 (“There were several meetings during my time that were nasty, this was one
of them”); Defs.’ Counter 56.1 ¶ 161; see generally Savad Decl. Ex. 78 (Jan. 22, 2007 Meeting
Transcript).)35 One meeting attendee noted that he or she had heard that the Congregation’s
proposal was for “rabbinical students and their families,” and sought a way prevent institutions
from being “flooded with family members and children, and all of that sort.” (Id. at 69–70
(emphasis added).) Mayor Marshall indicated, in response, that the “[a]ccessory use” provision
of the Dormitory Law “addresses that to some degree.” (Id. at 71.) Another meeting attendee,
who appears to live just outside the Village, stated, in reference to the Congregation’s apparent
plan, that “[e]veryone should understand that this is not going to happen, and we’re not going to
let it happen. Let’s stop it now. [Multiple shouts of ‘Stop it now!’] Their counsel is here to
protect their interests. We’re here, the people who live in this village, to protect our interests,
okay.” (Id. at 21.) Yet another attendee specifically indicated that because the rabbinical college
“would entirely change the character . . . . [and] politics of the village . . . . there has to be a
solution through the zoning laws that prohibits such a large number of people being within one
property, and one institution.” (Id. at 10.)36 Therefore, the evidence at the very least indicates
35
The Court recognizes that Defendants note the first portion of the Dormitory Law was
passed before Defendants became aware of the Congregation’s purchase of the subject property
in November 2004. (Defs.’ Mem. 27; see also Pls.’ 56.1 ¶ 148–49; Defs.’ 56.1 ¶ 116.) This fact,
however, does not place Plaintiffs’ equal protection claim outside of the zone of disputed facts.
36
As laid out below in the context of comments made outside of this particular meeting,
contrary to Defendants’ objections, statements by community members, even if not a part of the
decisionmaking body, are relevant in assessing discriminatory purpose, see Tsombanidis v. West
Haven Fire Dep’t, 352 F.3d 565, 580 (2d Cir. 2003) (directing the district court to consider
whether private citizens’ “hostility motivated the [municipality] in initiating . . . its . . . efforts”
on remand); LeBlanc Sternberg, 67 F.3d at 425 (“Discriminatory intent may [be demonstrated]
75
that the Dormitory Law was passed at a time at which there was great hostility towards the
Orthodox Jews in the community or, at the very least, hostility to the construction of a large
school of the type that Plaintiffs sought, namely one with on-campus family housing.
The Wetlands Law, the relevant provisions of which were adopted in April 2007, was
first considered at the aforementioned January 22, 2007 meeting. (Pls.’ 56.1 ¶ 173; Defs.’
Counter 56.1 ¶ 173.) The Village did not conduct any studies prior to the adoption of the law to
determine where the Village’s wetlands were, what threats they faced, or how best to protect
them, (Pls.’ 56.1 ¶ 190; Defs.’ Counter 56.1 ¶ 190), though Mayor Marshall was generally aware
of the existence of Wetlands on the Subject Property at the time, (Pls.’ 56.1 ¶ 180; Defs.’
Counter 56.1 ¶ 180). Nonetheless, between the January meeting and the passage of the Wetlands
Law, Trustees Sanderson, Louie, and Yagel indicated in campaign materials that voters needed
to “stand up to the threat” that the Congregation posed, further stating “[y]ou need to vote for a
team that is prepared to stand up to this threat of using the fundamentally unfair RLUIPA statute
as a hammer against our village.” (Pls. 56.1 ¶ 275; Defs.’ Counter 56.1 ¶ 275.) Trustee
Sanderson also specifically indicated in a campaign video that the rabbinical college “could
completely change the village and the make-up of the village,” (Pls.’ 56.1 ¶ 279 (citing Savad
Decl. 17 (Sanderson Tr.) 125–128); Defs.’ Counter 56.1 ¶ 279), and each candidate also more
generally campaigned on a platform to “keep Pomona Pomona,” which Trustee Louie indicated
. . . by showing that animus against the protected group was a significant factor in the position
taken by . . . those to whom the decision-makers were knowingly responsive.” (internal quotation
marks omitted)), particularly to the extent that Village officials were aware of these comments,
(see Pls.’ 56.1 ¶¶ 220–223; see also id. ¶¶ 248, 251, 253–54, 256, 258 (indicating the Village
officials took public comments into account.) Therefore, unlike the statements on websites and
blogs discussed above, these statements are not offered for the truth, but rather to demonstrate
that such statements were made to, or in the presence of, Defendants.
76
meant to “keep Pomona the village that it is and not change it,” (Pls.’ 56.1 ¶ 294 (citing Savad
Decl. Ex. 9 (Louie Tr.) 156). In fact, the campaign materials for all three candidates indicated
that “the single most important issue facing the village is clearly the Tartikov development.”
(Pls.’ 56.1 ¶ 274; Defs.’ Counter 56.1 ¶ 274.) Accordingly, as was the case with the Dormitory
Law, the Wetlands Law was passed at a time when there was intense focus on the proposed
rabbinical college but when no studies or analysis had been conducted of the needs, or nature, of
wetlands in the Village. The juxtaposition of these facts supports Plaintiffs’ claim that
Defendants adopted the Wetlands Law as a pre-textual means to unlawfully target Plaintiffs’
land use plans for the Subject Property.
Second, in addition to some of the suggestive comments described above, a number of
arguably discriminatory comments made by Village officials and community members prior to
the passage of the Challenged Laws suggest animus towards the Hasidic Jewish community.37
See Yeshiva Chofetz Chaim Radin Inc. v. Vill. of New Hempstead by its Bd. of Tr., 98 F. Supp. 2d
347, 355 (S.D.N.Y. 2000) (holding that “discriminatory comments by the [m]ayor . . . present
grounds for allowing a jury to judge the credibility, and motivation, of the [m]ayor . . . as well as
37
Of note, a number of the statements Plaintiffs cite do not indicate discriminatory
animus, but rather indicate the degree of opposition to the rabbinical college, or indicate that the
reason for the opposition was (and is) the rabbinical college’s size. (Compare, e.g., Pls’. 56.1 ¶
231 (noting that Lynn Yagel stated “there is no hope for Rockland County due to RLUIPA
development” with Savad Decl. Ex. 11 (L Yagel Tr.) 127 (noting that the statement referred to
“overdevelopment”).) While these statements are relevant to whether the rabbinical college was
targeted, they do not themselves reveal a discriminatory purpose. Nonetheless, there is enough
other evidence to suggest a discriminatory motive to send this case to a jury to determine if the
Challenged Laws were motivated by discriminatory animus.
77
the motivation that can be attributed to the [v]illage itself in passing the disputed provisions”).
These statements are undisputed as described below:
Village Planning Board Chairperson Melvin Cook, who admittedly was not employed
by the Village until after the Challenged Laws were adopted, indicated that “[s]ome
of us see the Rabbinical College as the beginnings of another restricted religious
community similar to New Square,” (Pls.’ 56.1 ¶ 211 (citing, inter alia, Savad Decl.
Ex. 1 (Cook Dep. Tr.) 102); Defs.’ Counter 56.1 ¶ 211), which Cook called a “tribal
ghetto” of ultra-orthodox Jews, (Pls.’ 56.1 ¶ 111 (citing Savad Decl. Ex. 1, at 89–
90)). Cook indicated that the increased number of Orthodox Hasidic Jews hurt the
community because of their adverse effect on the school systems and diversity in
Ramapo. (Pls.’ 56.1 ¶ 296 (citing Savad Decl. Ex. 1, at 79–80 (“I felt [the increase in
Ultra Orthodox Jews] has hurt the community and it certainly affected the school
systems in Ramapo.”)); Defs.’ Counter 56.1 ¶ 296.)38
Village Clerk Leslie Sanderson indicated that if “rampant rumors” about “how many
people” the rabbinical college would bring in “were true[,] it would usurp the Village,
perhaps the Village Board and the amount of people that live there.” (Pls.’ 56.1 ¶ 214
(citing Savad Decl. Ex. 11 (Sanderson Dep. Tr.) 200); Defs.’ Counter 56.1 ¶ 214.)
A published letter to the editor of The Journal News, which Defendants admit was
authored at least in part by Trustee Yagel, contended that “[t]o say that a virtual minicity within the village—that will house thousands of homogenous individuals who
can control village elections—is ‘natural’ in any way is simply not true.” (Pls.’ 56.1
¶ 215; Defs.’ Counter 56.1 ¶ 215 (citing Savad Decl. Ex. 150 (published letter)).)
Trustee Yagel was also quoted in a New York Times article as saying that it is
“disgusting” that the Congregation was “trying to create this mini city in our village.”
(Pls.’ 56.1 ¶ 246 (citing Savad Decl. Ex. 4 (B. Yagel Tr.) 245–46; id. Ex. 112); Defs.’
Counter 56.1 ¶ 246.)
The Court disagrees with Defendants’ assertion that Cook’s motives are irrelevant
because he was not employed by the Village when the laws were passed. The Village’s
perception of the Hasidic community after the passage of the Challenged Laws is at least
circumstantial evidence that is suggestive of the Villages’ prior views. Cf. Arlington Heights,
429 U.S. at 266 (noting propriety of considering “circumstantial evidence” and the relevance of a
“pattern” of discrimination).
Additionally, Plaintiffs contend that references to “diversity” are “code for keeping
Hasidic and Orthodox Jews out of the Village because the people making these statements know
that there are few Orthodox Jews and no Hasidic Jews in the Village.” See McWright v.
Alexander, 982 F.2d 222, 228 (7th Cir. 1992) (indicating that neutral terms of this sort can be
facially discriminatory when put into context).
78
38
Village resident Robert Prol sent a letter to Mayor Sanderson and Trustees Yagel,
Banks, and Louie less than a year before he was appointed to the Village planning
board, stating, “[t]here is only one outcome acceptable to the community, and that is
to maintain our fair zoning laws and the way of life we have all invested in.” (Pls.’
56.1 ¶¶ 234–35 (citing, inter alia, Savad Decl. Ex. 2 (Prol Dep. Tr.) 123–24); Defs.’
Counter 56.1 ¶ 234.) Trustee Louie responded by admitting “[i]t’s a little unsettling
what’s going on, but we are sure we can maintain our zoning laws in Pomona and
keep our neighborhood rural and diverse.” (Pls.’ 56.1 ¶ 236 (citing Savad Decl. Ex. 9
(Louie Dep. Tr.) 221–26).) Robert Prol also referred to the Congregation as “trying
to force their slum on everyone else,” though he later clarified that by “slum” he
meant that the “density level . . . would [result in] lots of garbage and packages and
everything else all over the place.” (Pls.’ 56.1 ¶ 244; Defs.’ Counter 56.1 ¶ 244
(citing Savad Decl. Ex. 2, at 86, 92).) A year after Robert Prol sent the
aforementioned letter, Mayor Sanderson appointed him to the planning board. (Pls.’
56.1 ¶ 235.)
Trustee Sanderson, in an email to Trustee Yagel, provided draft language for an email
blast that included the need to “defeat any developers who plan to take over our
village and our area.” (Id. ¶ 281 (citing Savad Decl. Ex. 9 (Louie Dep. Tr.) 115–
116)); Defs.’ Counter 56.1 ¶ 281.) Trustee Sanderson also publicly stated that the
Village needed to “maintain[] its cultural and religious diversity,” (Pls.’ 56.1 ¶ 284
(citing Savad Decl. Ex. 310 (Request for Admission) Response No. 106)), and
highlighted her concern about the Orthodox Hasidic “bloc vote” because of its impact
on the Ramapo School District, (see Pls.’ 56.1 ¶ 295 (citing, inter alia, Savad Decl.
Ex. 11 (Sanderson Dep. Tr.) 155–56); Defs.’ Counter 56.1 ¶ 295.)
Trustee Louie emailed a Village resident indicating that a goal of hers was to
“[m]aintain[] the demographic makeup of the village the way it is.” (Pls.’ 56.1 ¶ 307
(citing Savad Decl. Ex. 9 (Louie Dep. Tr.) 139–140); Defs.’ Counter 56.1 ¶ 307.)
The aforementioned Facebook post and related text messages between Mayor Yagel
and Louie, concerning a gathering of Hasidic Jews at Provident Bank Ballpark, (see
Savad Suppl. Decl. Ex. 1), and the associated adverse inference sanction.
It is worth noting that all of these statements were made despite evidence of an attempt to take
care not to make incriminating statements, as Mayor Marshall indicated at the aforementioned
January 22, 2007 meeting:
Ladies and gentleman, let me say something. We sitting at this table have
limitations that are placed on us as to what we can say and what we can’t say,
because our attorney tells us what we can say and what we can’t. I can’t say what
I feel, I can’t. If I agree with you, if I don’t agree with you, I don’t have the
79
luxury of being able to say that here. All I can say is that every member of this
board works very, very hard to do what is best for this community. You have
your issues. Don’t assume because no one has gotten up and said, wow, I agree
with you, oh boy; don’t assume that because we didn’t do that we don’t agree.
We may or may not, but please give us the benefit of the doubt.
(Pls.’ 56.1 ¶ 416 (citing, inter alia, Savad Decl. Ex. 78, at 58); see also, Pls.’ 56.1 ¶ 422 (noting
that in advance of a meeting, “Trustee Yagel warned Mayor Sanderson and Trustee Louie that
they ‘[m]ust be very careful about what we say. Don’t know who’s in the audience. Savad
might show up again.”) (citing, inter alia, Savad Decl. Ex. 105 (email from Yagel)); id. ¶ 425
(“Trustee Yagel stated that the residents should make sure that when they speak in public that
they don’t speak in a discriminatory manner because that can be construed as ‘the village is
discriminating.’” (quoting Savad Decl. Ex. 239 (Affidavit of Laura M. Kramer) ¶ 10) (citing
Savad Decl. Ex. 4, at 189–90); Defs.’ 56.1 ¶ 425 (clarifying this statement).)
Third, the Village’s behavior with respect to other proposed projects is suggestive. For
example, Trustee Sanderson opposed an Orthodox middle school on property outside the town in
May 2007, indicating that it did “not sound good” and encouraging others to attend public
hearings. (Pls.’ 56.1 ¶ 375 (citing Savad Decl. Ex. 11 (Sanderson Dep. Tr.) 224–26).)
Additionally, as early as 1996, the Village Attorney, then Ruben Ortenberg, advised residents to
contact the Town of Ramapo to object to the expansion of an Orthodox Hasidic school. (Pls.’
56.1 ¶ 376.) At the same time, the Village did not challenge a variety of secular development
projects of equal size that may have “threatened” the Village in the same way. (See, e.g., Pls.’
56.1 ¶¶ 381 (noting support for concept of Barr Laboratories office building); 399 (noting that
Mayor Marshall encouraged the Village to accept the construction group homes and that
residents “simply [did] not have the right to choose who [their] neighbors [would] be”).) Cf.
80
LeBlanc-Sternberg, 67 F.3d at 431 (finding relevant that the municipality “cited potential traffic
and noise problems among their reasons for opposing home synagogues but tolerated existing
traffic and noise caused by secular uses”).39
Of course, not all of the facts demonstrate discriminatory motives. Many of the
statements post-date the laws in question, and some reflect concern about over-development of
property in the Village. (See Defs.’ Mem. of Law in Reply to Pls.’ Opp’n to Defs.’ Mot. for
Summ. J. (“Defs.’ Reply”) 6 (Dkt. No. 193).) And the Village, in the past, has shown a
willingness in other contexts to facilitate religious land use. (See, e.g., id. at 7–8 (noting that
Local Law 2 of 2007 for the first time allowed single-family residents to be used as houses of
worship, as requested by ultra-Orthodox, Hasidic communities).) Taken together, though, in the
light most favorable to the non-movant Plaintiffs, and given the unique burden the Challenged
Laws place on Plaintiffs, there is sufficient evidence for a reasonable jury to conclude that the
Challenge Laws were passed with a discriminatory purpose.40
b. Discriminatory Effect
Plaintiffs also allege that the Challenged Laws had a discriminatory effect on them. In
establishing discriminatory effect, Plaintiffs are not “obligated to show a better treated, similarly
Plaintiffs also indicate that the Village challenged other Yeshivas, (Pls.’ 56.1 ¶¶ 360,
363, 376; Pls.’ Supplemental 56.1 ¶¶ 23–25), yet did not challenge a large agricultural operation
because it did not want to “get involved” in other villages’ affairs, (Pls.’ 56.1 377–78.) In fact,
in one instance, the Village did not object to an assisted living facility located just outside the
Village yet encouraged residents to oppose a Yeshiva on the same property when proposed. (Pls.
56.1 ¶¶ 374–75, 401.)
39
Because the evidence above is sufficient for Plaintiffs’ claim to survive summary
judgment, the Court need not consider the claim that the Village is closely entwined with the
Preserve Ramapo organization.
40
81
situated group of individuals.” Pyke, 258 F.3d at 110 (holding that a plaintiff who “alleges that a
facially neutral statute or policy with an adverse effect was motivated by discriminatory animus
[] is not obligated to show a better treated, similarly situated group of individuals of a different
race in order to establish a claim of denial of equal protection.”). Indeed, the cases “recognize[]
that a government that sets out to discriminate intentionally in its enforcement of some neutral
law or policy will rarely if ever fail to achieve its purpose.” Doe v. Vill. of Mamaroneck, 462 F.
Supp. 2d 520, 546 (S.D.N.Y. 2006).
Plaintiffs have established, at the very least, that whether the Challenged Laws prohibit
the building of a rabbinical college is an issue of material fact. Defendants offer a defense of the
Challenged Laws but devote no more than a few conclusory paragraphs to the “neutral
purpose[s]” of each law. (See, e.g., Defs.’ Mem. 45.) To the extent Defendants offer a
substantive defense, it is addressed in the context of the relevant law below.
First, with respect to the Accreditation Law, educational institutions are, in general,
permitted in the Village, provided those who intend to build the institution obtain a special
permit. See, e.g., Defs.’ Counter 56.1 ¶ 579 (citing Village Code § 130-10(F)). However,
unaccredited educational institutions are not permitted under any circumstances, because an
educational institution is defined by Village law as one that is “accredited by the New York State
Education Department or similar recognized accrediting agency,” Village Code § 130–4. (See
also Pls.’ 56.1 ¶¶ 580–81; Defs.’ Counter 56.1 ¶¶ 580–81.) Plaintiffs present expert testimony
indicating that their proposed rabbinical college cannot be accredited by any New York State
body, which Defendants do not rebut with any evidence of their own. (See Pls.’ 56.1 ¶¶ 583–84,
591; Defs.’ Counter 56.1 ¶¶ 583–84, 591.) In fact, Defendants do not dispute that “[t]o be
82
accredited” at all, an educational institution has to first be in existence and fully operational,
(Pls.’ 56.1 ¶ 590; Defs.’ Counter 56.1 ¶ 590), placing Plaintiffs, and likely any other group that
sought to build an educational institution in the Village, in a catch-22: they cannot build a
rabbinical college unless it is accredited, and they cannot have their rabbinical college accredited
until it is built, (see Pls.’ 56.1 ¶ 588–9; Defs.’ Counter 56.1 ¶ 589–89; Savad Decl. Ex. 16
(Preston Green Dep. Tr.) 49, 89–90 (noting that the relevant accredited bodies require
institutions to be operational)). Indeed, the rabbinical college could not even be accredited by
the Association of Advanced Rabbinical and Talmudic Schools (“AARTS”), a body designed to
accredit schools like the proposed rabbinical college, absent changes to its curriculum and the
rabbinical college being operational. (See Savad Decl. Ex. 16 (Green Tr.) 89–90; Gordon Aff.
Ex. 15 (Preston Green Witness Report) at 20–21.) To that end, the Accreditation Law at least
arguably prevents Plaintiffs from building their proposed rabbinical college.
Second, with regard to the Dormitory Law, the Village Code explicitly provides that
“single-family, two-family[,] and/or multifamily dwelling units . . . shall not be considered to be
dormitories or part of dormitories.” Village Code § 130–4. (See also Pls.’ 56.1 ¶ 603.)
Dormitories likewise cannot “contain separate cooking, dining or housekeeping facilities” and
cannot “occupy more than 20% of the total square footage of all buildings on the lot.” Village
Code §§ 130-4, 130-10(F)(12). (See also Pls.’ 56.1 ¶¶ 610, 695.) These prohibitions arguably
render it impossible for Plaintiffs, who, by religious belief, have obligations to their families that
can only be fulfilled by living with them, (see Pls.’ 56.1 ¶¶ 42 (noting that Jewish law imposes
“conjugal duties upon a husband and wife”), 493 (noting that students must “live with their
families in order to raise their family in a religious environment”); Defs.’ Counter 56.1 ¶¶ 42,
83
493), and who allegedly can best complete the course of study by remaining on school grounds,
(see, e.g., Pls.’ 56.1 ¶¶ 72 (noting that rabbinical college will be a “Torah Community” and will
“involve[] intensive learning interaction, day and night, among the students, teachers[,] and
lecturers,” 455–56 (noting that students must “exile [themselves] into a Torah Community”);
Defs.’ Counter 56.1 ¶¶ 455–56), to complete their studies at the proposed rabbinical college.
While it is for the jury to decide the authenticity of Plaintiffs’ beliefs—and the degree that such
Torah Community with multi-family housing is necessary to achieve them, which is Defendants’
central dispute with these contentions—there is sufficient evidence to conclude that the
Dormitory Law has a disparate impact on Plaintiffs.41
Third, with regard to the Wetlands Law, two provisions, working in concert, have the
apparent effect of barring construction of the rabbinical college in the Village. First, Village law
provides that “[t]he minimum lot area for an educational institution” is 10 acres. Village Code §
130-10(F)(1)(a). (See also Pls.’ 56.1 ¶ 14; Defs.’ 56.1 ¶ 14.) Plaintiffs argue, with sufficient
evidentiary support, that the Subject Property is the only such non-government-owned property
in the Village, meaning it is the only location where which the proposed rabbinical college can
be built. (Pls.’ 56.1 ¶ 616 (citing Beall Decl. ¶¶ 15–19).)42 Second, the Wetlands Law itself
Defendants allege, in response, that the “dormitory regulations expanded opportunities
for dormitories and were enacted for the neutral purpose of conforming the village code with
New York case law.” (Defs.’ Mem. 46.) First, the fact that dormitory use was permitted in such
a way as to carve out Plaintiffs’ plan for dormitories at the proposed rabbinical college means it
has a discriminatory effect; by design, some individuals benefitted, while Plaintiffs, because of
their professed religious beliefs, did not. Second, Plaintiffs dispute that dormitories were not
permitted in the Village under New York law prior to the passage of the law. (See Pls.’ 56.1 ¶
132; Defs.’ Counter 56.1 ¶ 132 (citing Savad Decl. Ex. 13 (Ulman Dep. Tr.) 303–304.)
41
None of the evidence cited contradicts Plaintiffs’ statement, though, as noted above,
this is arguably outside the scope of Plaintiffs’ Wetlands Experts’ field of knowledge.
84
42
defined wetlands as “all lands and waters of the Village of Pomona . . . which have a contiguous
area of at least 2,000 square feet” which contain, or are enclosed by, certain submerged
vegetation, or that otherwise contain “poorly drained soils.” Village Code § 126-2. “[W]ithin
100 feet of the boundary” of such lands, or of any water course or “water body,” defined as a
“body of standing water which is not dry more than three months of the year . . . and which,
when wet, is customarily more than 500 square feet in water surface area,” it is unlawful, unless
with a permit issued by the Board of Trustees or the Planning Board, to, in relevant part,
“[e]rect[] any building or structure of any kind,” including “roads [or] driveway,” without a
permit. Id. § 126-3. The Wetlands Law also exempts properties improved by single-family
homes, rendering the Subject Property only one of a handful of the 1,156 parcels in the Village
affected by the law. Village Code § 126–3(D). (See also Beall Decl. ¶¶ 151–53).43
Plaintiffs have proffered evidence of the existence of wetlands on the Subject Property,
specifically wetlands covering the vast majority of the west side of the property abutting Route
306. (See Beall Decl. ¶ 280 & Ex. T (survey map of the Subject Property).) Based on a survey
map, it appears that a driveway cuts between the wetlands on the Subject Property. (See id. Ex.
T; see also Pls.’ 56.1 ¶¶ 618–620 (discussing wetlands on the Subject Property and their impact);
Beall Decl. ¶¶ 280–89 (discussing wetlands on property in the context of state and federal
regulations), Ex. T (property map identifying wetlands) (Dkt. No. 153); Tauber Decl ¶ 28
43
Defendants contend that the exception only applies to pre-existing single-family
homes. (See Defs.’ Mem. 30.) However, the plain language of the Wetlands Law does not
contain such a qualifier. See Village Code § 126-3(D) (“The aforesaid one-hundred-foot buffer
in which regulated activities are not permitted to take place shall not apply to lots that are
improved with single-family residences.” (emphasis added)).
85
(averring that the Wetlands Law renders the Subject Property inaccessible); Second Gordon Aff.
Ex. A, at 61–63 (maps identifying wetlands on property).) Plaintiffs, however, offer evidence
that “the current access road” would have “to be improved” in order to be usable for the
proposed rabbinical college because there is “no other practicable access location for the
Property,” but that cannot be completed because the current driveway falls within 100 feet of the
wetlands. (Tauber Decl. ¶ 5.) Plaintiffs have also proffered evidence, which Defendants do not
rebut with any evidence of their own, that the Village was aware of the existence of wetlands on
the Subject Property, (see Pls.’ 56.1 ¶ 180 (noting that Mayor Marshall knew there were
wetlands on the property; Defs.’ 56.1 ¶ 180), such that it is plausible that Defendants targeted the
rabbinical college with the Wetlands Law.
Two issues remain unresolved by the record, however. First, it is not clear from the
record why Plaintiffs cannot build an entirely new entrance road off of Route 202, which is not
abutted by wetlands.44 Second, it is not clear to what extent the area between the wetlands is
otherwise regulated by state and federal law. In her Declaration, Beall, Plaintiffs’ wetlands
expert, notes that “[t]he wetlands on the west side of the Property would, at a minimum, be
regulated by the Corps of Engineers, as noted on the map by the comment ‘ACOE wetlands.’”
(Beall Decl. ¶ 283.)45 Plaintiffs further suggest, in their Rule 56.1 Statement, that “99% of
Plaintiffs indicate that “[a]ccess from the Property to Route 202 is impracticable
because of the existence of steep slopes, wetlands, and wetland buffers,” but the only evidence
they cite is the M. Tauber Declaration. (Pls.’ 56.1 ¶ 621.) M. Tauber, however, as discussed
above, is an expert neither on environmental topography nor Village law, and as such this
evidence is insufficient.
44
An Environmental and Planning Analysis by one of Plaintiffs’ experts indicates that
federal regulation of wetlands ends at the wetlands themselves, suggesting there is no buffer
86
45
mapped aquatic resources” in the village are currently regulated by the Corps of Engineers and
80% are regulated by the N[Y]SDEC, (Pls.’ 56.1 ¶ 870 (citing Beall Decl. ¶¶ 100–101)), and that
“development near the wetlands on the [S]ubject Property would be regulated by the NYSDEC,”
(Pls.’ 56.1 ¶ 906 (citing Beall Decl. ¶¶ 282–85)), which, according to an analysis prepared by
one of Plaintiffs’ experts, requires a permit for “activity within 100 feet of NYS designated
wetlands,” (Second Gordon Aff. Ex. A, at 8; see also id. at 27 (noting that the Wetlands Law is
“critical and necessary and is in keeping with municipal functions in New York State as well as
other national wetland protection interests,” and that “it mirrors the NYSDEC provisions for a
100 foot jurisdiction area”); Exs. H (indicating the existence of a NYSDEC-regulated stream on
the west side of the property). If the wetlands at issue are already regulated by state and federal
law in the same way as that provided for in the Wetlands Law, then it is unclear what, if any,
unique impact the Wetlands Law has on the proposed rabbinical college.46 In this regard, it is
noteworthy that Defendants claim that the Wetlands Law was intended to protect “wetlands in
the Village that fell between the cracks and were not regulated by the state or the federal
government.” (Defs.’ Mem. 30; see also Defs.’ 56.1 ¶ 161 (citing, inter alia Gordon Aff. Ex. 12
(Ulman Dep. Tr.) 461.) The testimony cited, however, is unsupported by evidence and, more
importantly, does not establish that the wetlands on the Subject Property were not already subject
to federal or state regulation. Defendants also argue, in conclusory fashion, that “there is no
requirement under federal law. (Second Gordon Aff. Ex. A, at 8; see also Defs.’ Mem. 30
(citing Savad. Decl. Ex. 313, at 461) (noting that there is no federal buffer requirement).)
46
Based on exhibits to the aforementioned report, there are certainly state and federally
regulated wetlands in the Village, though it is not clear whether they fall in the Subject Property
or not. (Second Gordon Aff. Ex. A, at 61–63.)
87
evidence that the wetlands local law has any effect whatsoever on the [P]roperty” because no
study had been done. (Defs.’ Mem. 46.) However, as stated above, the only evidence on this
issue is advanced by Plaintiffs. Therefore, Defendants are not entitled to summary judgment as
to the Wetlands Law on Plaintiffs’ Equal Protection claim.47
In response to the fact that the Challenged Laws appear to have a discriminatory effect on
Plaintiffs’ proposed rabbinical college, Defendants assert that Plaintiffs could potentially build a
rabbinical college “through a zone change [or] a text amendment,” see Village Code § 130-35
(power to amend), a “use variance,” see Village Code § 130-28(D) (variances), or a “special use
permit,” see Village Code § 130-10, through which the Parties can work together “to bring to
fruition something that is legal and beneficial to all involved,” (see, e.g., Defs.’ Mem 3, 34–35,
41, 42.) First, as the Court previously noted, a zone change or text amendment is a “legislative
process” that “Plaintiffs allege would be cumbersome and, given the hostility of Defendants,
fraught with indefinite delay and uncertainty.” Tartikov, 915 F. Supp. 2d at 633. (See also
Savad Decl. Ex. 313 (Hearing Tr.) 94 (Ulman admitting that Plaintiffs “would need an
amendment to one of [the Village’s] laws” to build the rabbinical college).) While Plaintiffs
offer only minimal evidence to support their contention that process would be as cumbersome as
they claim, (see Tauber Decl. ¶ 41), given the aforementioned evidence of discriminatory
animus, and the fact that the decision to grant an amendment is a matter of Village discretion,
47
In their Opposition, Defendants claim that because Plaintiffs have not challenged the
Village’s R-40 zoning they could not have built the rabbinical college anyway. (Defs.’ Opp’n
29.) The special use permitting process, as described below, provides for educational institutions
“subject to special permit approval.” See Village Code § 130-10(F). The problem is that the
Challenged Laws impose conditions on qualifying as an acceptable educational institution and on
development near wetlands more generally, which are conditions that Plaintiffs allege the
proposed rabbinical college cannot meet.
88
(see Savad Decl. Ex. 313, at 19; see also Pls.’ 56.1 ¶¶ 657, 662; Defs.’ Counter 56.1 ¶¶ 657,
662), Plaintiffs have a viable claim that seeking a zoning change or text amendment would be a
futile exercise, see Grace Church of North Cty. v. City of San Diego, 555 F. Supp. 2d 1126, 1138
(S.D. Cal. 2008) (granting summary judgment to plaintiff based on evidence that plaintiff had no
“reasonable expectation that any application for an extension” to use its property would be
granted), or at the very least would be fraught with delay, which may harm, or even completely
undermine, Plaintiffs’ ability to construct the proposed rabbinical college. Second, with regard
to applying for a variance, Ulman made clear that the Congregation would not have been granted
a variance even had it applied, (see Pls. 56.1 ¶ 626; Defs.’ Counter 56.1 ¶ 626; see also Pls.’
Opp’n 17 (citing Savad Decl. Ex. 313, at 19 (“I agreed that it would be wasteful for them to
apply for a variance.”))), suggesting that such an application would also be futile. Third,
Plaintiffs are unable to obtain a special use permit for the rabbinical college, the mechanism by
which houses of worship and educational institutions are approved in the Village, because, as
discussed, the Challenged Laws impose conditions on special use permits by limiting what
qualifies as an “educational institution,” see Village Code § 130-10(F); see also Tartikov, 915 F.
Supp. 2d at 604 (“[I]t is undisputed that the Village’s zoning authorities would not have the
discretion to issue a special use permit for an unaccredited institution or to issue certain
variances under the Village’s Zoning code.”), and by restricting development on or near
wetlands, see Village Code § 126-3. Accordingly, at a minimum, there is enough evidence to
89
suggest that whether Plaintiffs can successfully obtain a change in the Challenged Laws, or
variance from them, is a question of fact subject to a resolution by a fact-finder.48
c. Strict Scrutiny
If Plaintiffs are able to prove that the Challenged Laws were passed with a discriminatory
purpose and have a discriminatory effect, strict scrutiny would apply. See United States v.
Bannister, 786 F. Supp. 2d 617, 664 (E.D.N.Y. 2011) (“In cases involving alleged racial
discrimination, once a discriminatory purpose and a discriminatory effect are shown, the law is
subject to strict scrutiny.”) While the Challenged Laws may be justifiable under a rational basis
test, they do not survive strict scrutiny.
A compelling state interest involves “some substantial threat to public safety, peace[,] or
order,” Sherbert v. Verner, 374 U.S. 398, 403 (1963), and includes only “interest of the highest
order,” WDS II, 503 F.3d at 353, and the “gravest abuses,” Sherbert, 374 U.S. at 408. Given this
high bar, courts have held that “[a]esthetics,” traffic, and “community character” are normally
not compelling interests. See Westchester Day Sch. v. Vill. Of Mamaroneck, 417 F. Supp. 2d
477, 554 (S.D.N.Y. 2006) (“[T]he visual impact of the [p]roject does not implicate a compelling
government interest.”), aff’d, 504 F.3d 338 (2007); Clear Channel Outdoor, Inc. v. Town Bd. of
Town of Windham, 352 F. Supp. 2d 297, 304 (N.D.N.Y. 2005) (“[W]hile aesthetics and traffic
safety are regularly found to be substantial enough government interests to support a contentneutral regulation, those interests are rarely compelling enough to support a content-based
regulation.”); XXL of Ohio, Inc. v. City of Broadview Heights, 341 F. Supp. 2d 765, 789–90
48
While the Parties do not explicitly address the issue, the same analysis applies to the
prospect of the Congregation obtaining a permit to build an access road within the buffer area of
the wetlands on the west side of the Subject Property, pursuant to Village Code § 126–3.
90
(N.D. Ohio 2004) (holding that aesthetics and neighborhood preservation are not sufficiently
compelling interests to withstand strict scrutiny analysis); Cottonwood Christian Ctr. v. Cypress
Redevelopment Agency, 218 F. Supp. 2d 1203, 1227–28 (C.D. Cal. 2002) (noting that “aesthetic
harm” is not “compelling”); Knoeffler v. Town of Mamakating, 87 F. Supp. 2d 322, 330
(S.D.N.Y. 2000) (“Even where the government has declared a policy of promoting aesthetics and
traffic safety, . . . restrictions intended to accomplish those interests have failed to pass strict
scrutiny and have been struck down.”).
Defendants contend that the Challenged Laws were passed “to retain [the Village’s] rural
and residential character” and because of a “lack of enthusiasm for high-intensity development.”
(Defs.’ Mem. 23.) With regard to the specific Challenged Laws: first, Defendants contend that
the Dormitory Law was passed to “minimize[] the impact of a non-residential use in a singlefamily district,” including the effect on traffic and storm-water systems,” (id. at 25), and to
comply with state law, (id. at 24–25).49 Defendants also claim they have a “compelling interest
in adding permission to have dormitories as accessory uses to educational uses and a compelling
Specifically, Defendants contend that the Dormitory Law was passed “in response to
requirements in case law.” (Defs.’ 56.1 ¶ 124.) The Village determined that the district court in
Congregation Mischknols Lavier Yakov, Inc. v. Bd. of Tr. of Vill. of Airmont, No. 02-CV-5642
(S.D.N.Y. filed July 19, 2002) “indicated that dormitories could not be prohibited in relation to
an educational use,” and that the New York Court of Appeals in Cornell Univ. v. Bagnardi, 503
N.E.2d 509 (App. Div. 1986), “discussed the special status afforded to educational institutions in
land use cases and set forth the factors to be considered by local governments when reviewing
applications for such uses.” (Defs.’ 56.1 ¶ 124.) Therefore, Defendants contend that the Village
changed its “per-student” lot area requirement to ensure that “the entire educational institution
requirement [would not be] declared unconstitutional.” (Id. ¶ 125.) Defendants further contend
that they adopted the accreditation requirement in order to “create a distinction between an
educational institution bearing the special status, required by the New York Court of Appeals,
and a commercial-type educational use, such as an automotive school[,] which is not protected
by the special status standard,” and the village “preferred to avoid commercial-type educational
land use in Pomona.” (Id. ¶ 126.)
91
49
interest in further expanding opportunities for schools to have dormitories by shifting the
calculus from a per-student analysis to one that is based on land use,” (id. at 26). Second,
Defendants maintain that the Wetlands Law was passed to protect wetlands that were not
otherwise protected by state and federal law, (Defs.’ Mem. 30), “to protect property and
infrastructures that can be severely damaged by severe storms if not properly protected through
appropriate oversight and control of wetlands,” (id. at 29), i.e., “to make sure they were not
destroyed, for the health, safety, and welfare of all the residents,” (id. at 31 (internal quotation
marks omitted)), and to “protect[] the waterways and prevent[] flooding,” (id. at 32). Third, with
regard to the Accreditation Law, Defendants allege that Local Law 1 of 2001 was passed so that
educational institutions would require a special permit and so that their “density and impacts on
adjoining properties would be regulated,” (id. at 32–33), and that the definition of educational
institution was expanded with Local Law 5 of 2004 to ensure it “allowed accreditation from a
broader, generic entity,” (id. at 33). Defendants further contend that the “intent behind the
definition [of educational institution] and the accreditation requirement was to ensure that only
those educational uses consistent with a residential and rural area would be permitted, and that
inconsistent uses would not, e.g., automotive or other trade schools.” (Id. at 33.)
These explanations are insufficient to justify granting summary judgment to Defendants.
In general, as discussed above, the stated aesthetic and community character rationales are
generally not compelling state interests, and Defendants have not demonstrated that these
interests are so overwhelming or gravely threatened by the institutions such as the proposed
rabbinical college to render them compelling. Defendants cite only one case suggesting
otherwise, Murphy v. Zoning Comm’n of Town of New Milford, 148 F. Supp. 2d 173 (D. Conn.
92
2001), which at best only cites contradictory precedent, see id. at 189–90. Further, specifically
with regard to the Dormitory Law, while certain aspects of the law may be justified by a need to
comply with other laws, Defendants offer no defense of the scope of the restrictions it contains
(for example, its ban on separate cooking, dining, or housekeeping facilities). And, specifically
with regard to the Wetlands Law, while there is some evidence to suggest a need for a wetlands
law, (see, e.g., Aff. of Amanda Gordon Ex. A, at 27 (noting that the Wetlands law is “critical and
necessary and is in keeping with municipal functions in New York State as well as other national
wetland protection interests”), Defendants offer no evidence beyond Ulman’s testimony, (see
Defs.’ Mem. 30–31), as to the nature of the threat to wetlands and the extent to which the
Village’s wetlands were not already protected by state and federal law.
Nonetheless, even if the Challenged Laws were justified by compelling interests, they
would still fail to pass strict scrutiny because they are not narrowly tailored to serve those
interests. See Turner Broad. Sys. Inc. v. F.C.C., 512 U.S. 622, 664 (1994) (noting that a
municipality must show “that the regulation will in fact alleviate [claimed] harms in a direct and
material way”). When “[t]he proffered objectives are not pursued with respect to analogous nonreligious conduct, and those interests could be achieved by narrower ordinances that burdened
religious conduct to a far lesser degree[,] [then] [t]he absence of narrow tailoring suffices to
establish the invalidity of the actions.” Lukumi, 508 U.S. at 546; Jana-Rock Constr., Inc. v.
N.Y.S. Dep’t of Econ. Dev., 438 F.3d 195, 210 (2d Cir. 2006) (“Strict scrutiny is applied in order
to determine whether the harm stemming from a particular decision . . . is justified”).50 There are
50
Of note, Plaintiff repeatedly cites Holt v. Hobbs, 135 S. Ct. 853 (2015) as governing
Plaintiff’s facial challenge. (See Pls.’ Mem. 34 (citing Holt, 135 S. Ct. at 863 (noting that
RLUIPA “requires the Government to demonstrate that the compelling interest test is satisfied
93
a variety of reasons why the Challenged Laws arguably fail this test, as implied by the prior
discussion of discriminatory effect. Nonetheless, the Court recounts a few below.
First, Defendants have admitted that a generalized restriction on the intensity and size of
development would serve all of its allegedly compelling interests. (See Pls.’ 56.1 ¶ 709; Defs.’
Counter 56.1 ¶ 709.) While, as noted above, this is just the sort of generalized interest that does
not justify a burden on religious exercise, see Gonzales, 546 U.S. at 438, it also demonstrates
that there is no reason that Plaintiffs’ development implicates these interests more than any other
development.
Second, as noted above in the context of the Wetlands Law, Defendants admit that they
commissioned no studies or experts when examining the need for the Challenged Laws,
suggesting the allegedly compelling interests may be an “afterthought effort to bolster a flimsily
supported decision,” Westchester Day School, 417 F. Supp. 2d at 554, or “contrived for the sole
purpose of rationalizing the” Village’s decisions, Fortress Bible Church v. Feiner, 734 F. Supp.
2d 409, 505 (S.D.N.Y. 2010), aff’d by 694 F.3d 208 (2d Cir. 2012). (See also Pls. Mem. 35
(discussing the lack of evidence generally), 38 (discussing the lack of evidence for traffic
concerns), 45 (discussing the lack of evidence for noise concerns); Pls.’ 56.1 ¶¶ 742, 749, 821.)
through application of the challenged law to the person” (internal quotation marks omitted)).)
While that case concerned facial hair, it did not concern a facial challenge, or even a
constitutional challenge at all, and therefore does not provide the proper standard to apply to
facial challenges rooted in constitutional rights, despite Plaintiffs’ insistence otherwise. See
Holt, 136 S. Ct. 843, 859 (“We hold that the Department’s policy, as applied in this case,
violates the Religious Land Use and Institutionalized Persons Act of 2000 . . . .” (emphasis
added)); Snodgrass v. Robinson, No. 14-CV-269, 2015 WL 4743986, at *9, *11 (W.D. Va. Aug.
10, 2015) (applying Holt only to the Plaintiff’s as-applied challenge but not to his facial
challenge).
94
Third, Village law already provides “several layers of regulation” to protect the interests
at issue through operation of the special permit process for educational institutions. (Pl.’s Mem.
36.) First, the Village Code provides that the Board of Trustees may, “impose . . . restrictions
and regulations” on educational institutions to “minimize traffic hazards, impairment of the use,
enjoyment or value of property in the surrounding area, or generally protect the health, safety[,]
and welfare of the neighborhood.” (Id. at 37 (internal quotation marks omitted).) See also
Village Code § 130–10(F). Second, the Zoning Board of Appeals, in approving individual
special use permit applications, may impose “reasonable conditions and restrictions as are
directly related to and incidental to the proposed special use permit.” (Pls.’ Mem. 37 (internal
quotation marks omitted).) See also Village Code § 130–28(E)(1). Third, the permitting Board
may attach “additional conditions and safeguards . . . to ensure initial and continual conformance
to all applicable standards and requirements” including “[t]he location and size of the special
permit use, nature and intensity of the operations involved in it or conducted in connection with
it,” and ensuring that the use does not “change . . . the character of the neighborhood.” (Pls.’
Mem. 37 (internal quotation marks omitted).) See also Village Code § 130–28(E)(6). Fourth,
the Village Planning Board can “impose such reasonable conditions and restrictions as are
directly related to and incidental to a proposed site plan,” and cannot approve a site plan unless it
takes into account “public health, safety[,] and general welfare” with respect to traffic, parking,
and other aspects of development, (Pls.’ Mem. 37 (internal quotation marks omitted). See also
Village Code § 119-3(B). Furthermore, as alluded to above, Article 24 of the New York State
Environmental Conservation Law requires permitting from the New York State Department of
Environmental Conservation for activity within 100 feet of designated wetlands and wetlands
95
that are “part of [the] ‘waters of the United States’ are federally protected” by the River and
Harbors Act of 1899 and the Clean Water Act, administered by the Army Corps of Engineers.
(Second Gordon Aff. Ex. A, at 8; Pls.’ Mem. 50–51.) It is not clear from the record the extent to
which the wetlands on the Subject Property are covered by these laws. Accordingly, it is unclear
what compelling interests the Challenged Laws uniquely serve.
Fourth, specifically with regard to traffic, while it is not always foreclosed as a
compelling interest, see Westchester Day Sch. v. Vill. of Mamaroneck, 386 F.3d 183, 191 (2d
Cir. 2004) (“WDS I”) (“We know of no controlling authority, either in the Supreme Court or any
circuit[,] holding that traffic problems are incapable of being deemed compelling.”), Defendants’
only evidence connecting the Challenged Laws to alleviating traffic concerns is that “all
dwelling units, by their nature, generate traffic.” (Pls.’ Mem. 41 (citing Pls.’ 56.1 ¶ 791).) This
explanation is insufficient, particularly given, among other reasons, there is evidence that the
proposed rabbinical college would be largely self-contained, generating little to no traffic at all.
(See Pls.’ 56.1 ¶¶ 805–06; Pls.’ Mem. 43.) See also Congregation Etz Chaim v. City of L.A.,
Civ. No. 10-1587, 2011 WL 12472550, at *7 (C.D. Cal. July 11, 2011) (granting summary
judgment to the plaintiff where the defendant city “present[ed] no evidence that any traffic or
parking concerns actually existed, nor that such concerns could not be mitigated in such a way as
to allow the Congregation’s use at the subject property” (internal quotation marks omitted).)
Fifth, there is no reason to believe, nor any evidence indicating, that accredited schools
have a lesser impact on traffic, aesthetics, or any other interest Defendants claim, as compared to
unaccredited schools. (See Decl. of William D. Fitzpatrick ¶ 65 (Dkt. No. 152) (“[T]raffic
generation will be the same for an accredited facility and a non-accredited facility with an equal
96
number of students.”.) Nor do Defendants offer any evidence that automobile schools are not
capable of being accredited. (See Pls.’ 56.1 ¶ 759 (asserting that automobile schools can be
accredited).) Regardless, given there are no accredited—or unaccredited—schools in the
Village, it is difficult to understand why accreditation suddenly became a concern for the
Village, unless considered in light of the growth of the Orthodox Hasidic community in the
Pomona area and the proposed rabbinical college. (Pls.’ 56.1 ¶ 723.) See Cottonwood Christian
Ctr. v. Cypress Redev. Agency, 218 F. Supp. 2d 1203, 1225 (C.D. Cal. 2002) (“At first blush, the
[defendant] [c]ity’s concern about blighting rings hollow. Why had the [defendant], so
complacent before [the plaintiff] purchased the [subject] [p]roperty, suddenly burst into action?
. . . [T]he activity suggests that the [defendant] was simply trying to keep [the plaintiff] out of the
[c]ity, or at least from the use of its own land.”). The same issue applies to the Dormitory Law,
as Defendants do not make clear why dormitories with kitchens or housekeeping facilities pose
any greater threat to the environment or character of the Village than more traditional, studentonly dormitories.
What all of these concerns make clear is that the justification for the discriminatory effect
of the Challenged Laws is hardly beyond dispute. The laws are structured such that they
arguably carve out Plaintiffs’ use with questionable reasons for doing so, and general claims that
the Challenged Laws are “reasonable limitations so that the expansion in the use would be
consistent with the rural and residential character of the community,” (Defs.’ Mem. 27), are
insufficient. Accordingly, the Court finds that Plaintiffs’ Equal Protection Claim survives
summary judgment.
97
5. Free Exercise (Claim 1)
Plaintiffs also bring a claim under the Free Exercise Clause of the First Amendment. The
First Amendment, which is applicable to the States by operation of the Fourteenth Amendment,
“prohibits the enactment of any law prohibiting the free exercise of religion.” Bronx House of
Faith v. Cmty. Sch. Distr. No. 10, 127 F.3d 207, 216 (2d Cir. 1997) (internal quotation marks
omitted); see also Hosanna-Tabor Evangelical Lutheran Church and Sch. v. E.E.O.C., 132 S. Ct.
694, 702 (2012) (“The First Amendment provides, in part that ‘Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof.’”). “At a
minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates
against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for
religious reasons.” Lukumi, 508 U.S. at 532 (alteration omitted); see also Commack, 680 F.3d at
210 (same). It is not a violation of the Free Exercise Clause, however, to enforce a generally
applicable rule, policy, or statute that incidentally burdens a religious practice, as long as the
government can “demonstrate a rational basis for [the] enforcement” of the rule, policy, or
statute, and the burden is only an incidental effect, rather than the object, of the law. Fifth Ave.
Presbyterian Church v. City of N.Y., 293 F.3d 570, 574 (2d Cir. 2002); see also Emp’t. Div.,
Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 878–79 (1990) (explaining that enforcement
of a neutral law of general applicability does not offend the Free Exercise Clause), superseded by
statute on other grounds, 42 U.S.C. § 2000bb et seq., as recognized by Holt v. Hobbs, 135 S. Ct.
at 859.
Thus, to state a free exercise claim under the aforementioned Lukumi standard, a plaintiff
must establish that “the object of [the challenged] law is to infringe upon or restrict practices
98
because of their religious motivation,” or that the law’s “purpose . . . is the suppression of
religion or religious conduct.” Lukumi, 508 U.S. at 533. Such a law is subject to strict scrutiny
review, and it “will survive strict scrutiny only in rare cases.” Id. at 546; see also Smith, 494 U.S.
at 890 (noting that a facially neutral, generally applicable law is only subject to rationality
review); Fifth Ave., 293 F.3d at 574 (noting rational basis review applies when a burden on
religion is incidental to, rather than the object of, the law at issue).
“To determine the object of a law, [the Court] must begin with its text, for the minimum
requirement of neutrality is that a law not discriminate on its face.” Lukumi, 508 U.S. at 533.
But, even if neutral on its face, a law may still run afoul of the Free Exercise Clause if it “targets
religious conduct for distinctive treatment.” Id. at 534 (“Facial neutrality is not determinative.”).
As the Supreme Court has cautioned, the Free Exercise Clause “forbids subtle departures from
neutrality,” Gillette v. United States, 401 U.S. 437, 452 (1971), and “covert suppression of
particular religious beliefs,” Bowen, 476 U.S. at 703; see also Lukumi, 508 U.S. at 534 (“Official
action that targets religious conduct for distinctive treatment cannot be shielded by mere
compliance with the requirement of facial neutrality. The Free Exercise Clause protects against
governmental hostility which is masked, as well as overt.”). In this regard, courts may find
“guidance” in Equal Protection jurisprudence, which, among other things, requires consideration
of direct and circumstantial evidence regarding the goals of those who enacted the law in
question. Lukumi, 508 U.S. at 540. Indeed, “[r]elevant evidence includes . . . the historical
background of the decision under challenge, the specific series of events leading to the
enactment or official policy in question, and the legislative or administrative history, including
contemporaneous statements made by the decisionmaking body.” Id. Another measure of a
99
law’s object is the temporal proximity between the perceived land use and the adoption of the
regulation of that use. See Vision Church v. Vill. of Long Grove, 468 F.3d 975, 999 (7th Cir.
2006) (suggesting that the “temporal proximity between [the plaintiff’s] dispute with the
[defendant] [v]illage over a special use permit and the enactment of the [o]rdinance” at issue was
evidence of the purpose of the ordinance). Based on these factors, “if the object of a law is to
infringe upon or restrict practice because of their religious motivation, the law is not neutral.”
Lukumi, 508 U.S. at 533.
As the Court indicated in its 2013 Opinion and Order, “it is . . . debatable that the abovementioned animosity to the rabbinical college stemmed from ‘legitimate concern[s] . . . for
reasons quite apart from discrimination.’” Tartikov, 915 F. Supp. 2d at 621 (alterations in
original) (quoting Lukumi, 508 U.S. at 535). The question here, then, is whether the record
reveals a nefarious motive for the Challenged Laws. Before reaching that question, however, the
Court notes that Defendants contend once again, in the context of Plaintiffs’ free exercise claim,
that housing is not eligible for free exercise protection because it is not a religious use. (See,
e.g., Defs.’ Mem. 2.) However, at least in the context of RLUIPA, the Court has already found
that “the building of rabbinical college,” of which student housing would be a part, “falls
squarely within [the] definition of ‘religious exercise,’” and that “the multi-family dormitories
that [Plaintiffs] seek to build are intended to facilitate religious exercise.” Tartikov, 915 F. Supp.
2d at 629. The same analysis is applicable here. Because the definition of religious exercise is
quite broad, see WDS I, 386 F.3d at 186 (holding that religious exercise is “any exercise of
religion, whether or not compelled by, or central to, a system of religious belief” and that “the
use, building, or conversion of real property for the purpose of religious exercise shall be
100
considered . . . religious exercise.”), accessory housing, and particularly accessory housing that is
intended to be the center of religious learning and teaching, is arguably religious exercise, see
WDS II, 504 F.3d at 348 (noting that the correct inquiry to determine whether an educational
facility is covered as “religious exercise” by RLUIPA is whether it “would be used at least in
part for religious education and practice”); see also Fifth Ave, 293 F.3d at 574–75 (finding
provision of a location for homeless to sleep to be religious exercise); Candlehouse, Inc. v. Town
of Vestal, No. 11-CV-93, 2013 WL 1867114, at *18 (N.D.N.Y. May 3, 2003) (noting that there
was sufficient evidence to support a finding that the residential component of a religious ministry
for substance abuse to be religious exercise); Bikur Cholim, 664 F. Supp. 2d at 276 (holding that
operation “of a facility to enable observant individuals to visit the sick on the Sabbath and
holidays as well as the other individual plaintiff’s [sic] obligations to observe the Sabbath while
being able to visit their family members at [a nearby hospital] implicates their religious
exercise”). Thus, there is sufficient evidence in the record to conclude that the housing at issue
here is “inextricably integrated with, and necessary for [Plaintiffs’] ability to provide, religious
education and practice, i.e., engage in ‘religious exercise.’” Westchester Day Sch., 417 F. Supp.
2d at 545–46. Accordingly, the rabbinical college, in its entirety, is at least arguably deserving
of free-exercise protections.
At the outset, as discussed in the next section in more detail, the Court notes that each of
the Challenged Laws is facially neutral. As Defendants repeatedly point out, and as the Court
previously found, the Challenged Laws, on their face, apply to all development projects and
educational institutions. Tartikov, 915 F. Supp. 2d at 621; see also id. at 615 (“[T]he Challenged
Laws are facially neutral with respect to religion (and race).”). Accordingly, absent any other
101
evidence, only intermediate scrutiny would apply. (See Pls.’ Mem. 27.) See also Turner Broad.,
512 U.S. at 662 (noting that “the intermediate level of scrutiny [is] applicable to content-neutral
restrictions that impose an incidental burden on speech”); Mastrovincenzo v. City of N.Y., 435
F.3d 78, 98 (2d Cir. 2006) (“Regulations that . . . are . . . content-neutral . . . trigger intermediate,
rather than strict, scrutiny.”); Hobbs v. Cty. of Westchester, 397 F.3d 133, 149 (2d Cir. 2005)
(“[A] less stringent test—applying ‘intermediate scrutiny’—is applicable to regulations of
expressive activity that are not based on content.”). However, as discussed above, Plaintiffs have
offered sufficient evidence to raise a question of material fact as to whether the Challenged Laws
were passed with a discriminatory purpose—to infringe on Plaintiffs’ free exercise of religious
beliefs. This renders the Challenged Laws non-neutral and therefore subject to strict scrutiny.
See Lukumi, 508 U.S. at 533 (“[I]f the object of a law is to infringe upon or restrict practices
because of their religious motivation, the law is not neutral.”). And, for the reasons discussed in
the previous section, a reasonable jury could find that the Challenged Laws do not pass strict
scrutiny. Accordingly, summary judgment is denied as to Plaintiffs’ free exercise claim.
6. Free Speech (Claim 2)
In their second cause of action, Plaintiffs allege that the Challenged Laws violate
Plaintiffs’ right to free speech under the First Amendment. Plaintiffs move for summary
judgment “to the extent that [the] claim[] does not involve issues of discriminatory motivation,”
(Pls.’ Mem. 4), and Defendants cross-move for summary judgment.
“When conducting First Amendment [free speech] analysis, courts examine challenged
governmental regulations to discern whether they are content based or content neutral since ‘the
scope of protection for speech generally depends on whether the restriction is imposed because
102
of the content of the speech.’” Bd. of Managers of Soho Int’l Arts Condo. v. City of N.Y., No. 01CV-1226, 2004 WL 1982520, at *10 (S.D.N.Y. Sept. 8, 2004) (quoting Universal City Studios,
Inc. v. Corley, 273 F.3d 429, 450 (2d Cir. 2001)). Indeed, this inquiry is “critical, because it
informs the level of scrutiny the regulation should receive. Content-based restrictions are viewed
as presumptively invalid and are subject to strict scrutiny.” Tartikov, 915 F. Supp. 2d at 623.
Generally, if a law is content-based, “strict scrutiny applies and the municipality must
show that the regulation is necessary to serve a compelling state interest and that it is narrowly
drawn to achieve that end.” Sugarman v. Vill. of Chester, 192 F. Supp. 2d 282, 291–92
(S.D.N.Y. 2002) (internal quotation marks omitted); see also Reed v. Town of Gilbert, 135 S. Ct.
2218, 2226 (2015) (“Content-based laws . . . are presumptively unconstitutional and may be
justified only if the government proves that they are narrowly tailored to serve compelling state
interests.”). By contrast, content-neutral restrictions are subject to intermediate scrutiny,
whereby “the government may impose reasonable time, place[,] and manner restrictions on
speech as long as they are content neutral, narrowly tailored to serve a significant government
interest[,] and leave open ‘ample channels for communication.’” Sugarman, 192 F. Supp. 2d at
292 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)); see also Vincenty v.
Bloomberg, 476 F.3d 74, 84 (2d Cir. 2007) (“The appropriate standard by which to evaluate the
constitutionality of a content-neutral regulation that imposes only an incidental burden on speech
is the intermediate level of scrutiny.”); Lusk v. Vill. of Cold Spring, 475 F.3d 480, 495 n.16
(2007) (“Content-neutral criteria for political and other signage that are sufficiently objective and
precise, and that permit residents to engage in some form of spontaneous speech, have been held
to be constitutionally permissible.”). Of note, “[t]he First Amendment’s hostility to content103
based regulation extends not only to restrictions on particular viewpoints, but also to prohibition
of public discussion on an entire topic.” Consol. Edison Co., Inc. v. Publ. Serv. Comm’n, 447
U.S. 530, 537 (1980); Hobbs, 397 F.3d at 148 (same).
“The principal inquiry in determining content neutrality . . . is whether the government
has adopted a regulation of speech because of disagreement with the message it conveys . . . . A
regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it
has an incidental effect on some speakers or messages but not others.” Ward, 491 U.S. at 791;
Tunick v. Safir, 209 F.3d 67, 91 (2d Cir. 2000) (same). “Government regulation of speech is
content based if a law applies to particular speech because of the topic discussed or message
expressed.” Reed, 135 S. Ct. at 2227. “As a general rule, laws that by their terms distinguish
favored speech from disfavored speech on the basis of the ideas or views expressed are content
based,” Turner Broad., 512 U.S. at 643. In other words, “[a]n ordinance is content-based when
the content of the speech determines whether the ordinance applies,” Sugarman, 192 F. Supp. 2d
at 292. By contrast, “government regulation of expressive activity is content neutral so long as it
is justified without reference to the content of the regulated speech.” Time Warner, 729 F.3d at
155 (emphasis and internal quotation marks omitted).
As noted above, each of the challenged laws is facially neutral as to content. See
Tartikov, 915 F. Supp. 2d at 621. See also id. at 615 (“[T]he Challenged Laws are facially
neutral with respect to religion (and race).”). However, because there is a question of material
fact as to whether the laws were passed with a discriminatory purpose, it is unclear if
intermediate or strict scrutiny applies. See Lukumi, 508 U.S. at 533 (“[I]f the object of a law is
to infringe upon or restrict practices because of their religious motivation, the law is not
104
neutral.”). The Court need not reach this issue with respect to Plaintiffs’ free speech claim,
however, because it finds that Plaintiffs’ have not established that they have a viable free speech
claim.
The Court previously held that Plaintiffs had barely “pled enough facts to establish that
the rabbinical college would engage in and foster expressive conduct.” Tartikov, 915 F. Supp.
2d at 625; see also Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) (discussing the “First
Amendment right to ‘receive information and ideas’”). The Court also noted that while simply
limiting potential locations of the proposed rabbinical college in the Village would likely not
violate the Free Speech Clause of the First Amendment, see Merrimack Congregation of
Jehovah’s Witnesses v. Town of Merrimack, No. 10–CV–581, 2011 WL 1236133, at *4 (D.N.H.
Mar. 31, 2011) (“Courts have held that, absent other expressive conduct, limitations on the
geographical location of a religious institution do not implicate the right to free expression under
the First Amendment.”); Grace Church of Roaring Fork Valley v. Bd. of Cty. Comm’n. of Pitkin
Cty., 742 F. Supp. 2d 1156, 1167 (D. Colo. 2010) (noting that “denial of the [plaintiff’s] proposal
to build a worship facility at a particular location did not improperly regulate the [plaintiff’s]
dissemination of its religious message”); see also Christian Coll. v. City of Morgan Hill, 360
F.3d 1024, 1037 (9th Cir. 2004) (finding town’s refusal to rezone site designated for hospital to
religious affiliated college did not violate the Free Speech Clause); Town of Islip v. Caviglia, 540
N.E.2d 215, 222 (App. Div. 1989) (finding zoning ordinance that limited the location of certain
land uses did not violate the plaintiff’s free speech rights), here the Challenged Laws arguably
prevent Plaintiffs from building the rabbinical college anywhere in the Village, see Tartikov, 915
F. Supp. 2d at 626. The Court thus focuses not on whether the Challenged Laws prevent the
105
construction of a rabbinical college, but rather on whether the act of constructing a rabbinical
college is free speech at all.
Defendants, citing the same two cases they cited at the motion to dismiss stage, see id. at
624, contend that constructing a rabbinical college is not an act of free speech but instead only
implicates the Free Exercise Clause, (see Defs.’ Mem. 52 (“[T]he act of building a house of
worship, let alone a religious school[,] does not implicate the Free Speech Clause; instead, courts
analyze zoning regulations limiting such construction under the Free Exercise Clause, which
addresses religiously motivated conduct.” (citing Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly,
309 F.3d 144, 163 (3d Cir. 2002) (finding that “the act of erecting a wall separating the interior
of a building from the secular world” does not constitute speech); San Jose Christian College v.
City of Morgan Hill, 360 F.3d at 1032 (9th Cir. 2004) (finding religious college’s desire to
educate was not speech)). Plaintiffs, by contrast, encourage a broad view of the concept of
speech, claiming, in principal, that the proposed rabbinical college is designed to “foster the
expression of certain ideas among and between faculty members and students.” Tartikov, 915 F.
Supp. 2d at 625; see also Adhi Parasakthi Charitable, Med., Edu., and Cultural Soc’y v. Twp. of
West Pikeland, 721 F. Supp. 2d 361, 374 (E.D. Pa. 2010) (“The act of worshipping . . . inherently
communicates something to others about that individual’s views on society, life, and other more
philosophical subjects . . . . [T]he use of the land as a place of worship allows an individual’s
conduct to communicate these thoughts with other members of the congregation.”); id. at 372
(“Expressive conduct will constitute protected speech if the conduct is imbued with elements of
communication, given the factual context of the conduct.” (internal quotation marks omitted)).
106
The case law supports a broad view of what can be considered speech. See, e.g.,
Kleindienst, 408 U.S. at 762–63 (discussing “First Amendment right to receive information and
ideas”); Bd. of Tr. of SUNY v. Fox, 492 U.S. 469, 473–74 (1989) (finding “Tupperware parties”
to be speech); Adhi Parasakthi, 721 F. Supp. 2d at 372, 374 (noting that an “act of worship is
communicative,” and that it must be “imbued with elements of communication”). Indeed, the
word “speech” itself in the First Amendment “is not construed literally, or even limited to the use
of words.” Tenafly, 309 F.3d at 158. Further, the Court previously distinguished the two cases
Defendants cite—San Jose Christian and Tenafly. Tartikov, 915 F. Supp. 2d at 624–25. San
Jose is distinguishable because, unlike the plaintiff in that case, Plaintiffs here alleged that the
Village’s action was motivated by discrimination. Id. at 624. Plaintiffs, as discussed above, now
have evidence supporting this allegation, and so the case remains distinguishable. Tenafly is also
distinguishable, as the court in that case found that construction of a religious boundary “did not
communicate any idea or message; rather, it served only a ‘purely functional purpose.’”
Tartikov, 915 F. Supp. 2d at 625 (quoting Tenafly, 309 F.3d at 164). The construction of the
boundary “allowed [Orthodox Jews] to engage in certain activities on the Sabbath” that were
“‘otherwise forbidden,’” e.g., pushing baby strollers. Id. at 624–25 (quoting Tenafly, 309 F.3d at
152, 162). By contrast, the construction of the rabbinical college does not just enable Orthodox
Jews to practice everyday activities in ways that are consistent with their religion, but rather
directly enables religious education and worship. The question is, then, whether an action that
facilitates speech can be an act of speech itself.
On the basis of Plaintiffs’ pleadings, the Court previously answered this question in the
affirmative. Now that evidence has been gathered and provided to the Court, however, the Court
107
is persuaded that the fact that building a rabbinical college might enable religious speech does
not render its construction speech itself. See Adhi Parasakthi, 721 F. Supp. 2d at 373–74 (“[I]n
the absence of evidence supporting a contrary conclusion, the building of a place of worship will
not be considered expressive conduct protected by the Free Speech Clause.”); cf. City Council of
L.A. v. Taxpayers for Vincent, 466 U.S. 789, 814 (1984) (“[T]he mere fact that government
property can be used as a vehicle for communication does not mean that the Constitution
requires such uses to be permitted.”). On this point, the Third Circuit has bluntly explained that
if “every religious group that wanted to challenge a zoning regulation preventing them from
constructing a house of worship could” claim a violation of free speech, it would be “so
astonishing that [the Third Circuit is] unaware of any court—or even law review article—that
has suggested it.” Tenafly, 309 F.3d at 163; see also id. (“Otherwise, the act of constructing
houses of worship would implicate the Free Speech Clause, whereas courts consistently analyze
the constitutionality of zoning regulations limiting such construction under the Free Exercise
Clause, not the Free Speech Clause.”).51 While Plaintiffs have offered evidence as to the
expressive conduct they hope to engage in after the rabbinical college is built, Plaintiffs have not
offered “any evidence to attempt to show that the building itself will convey some attitude or
belief,” Adhi Parasakthi, 721 F. Supp. 2d at 374, nor have they made any argument or showing
The Tenafly court made clear that “courts consistently analyze the constitutionality of
zoning regulations limiting [the] construction of houses of worship under the Free Exercise
Clause, not the Free Speech Clause.” Tenafly, 309 F.3d at 163 (citing City of Boerne v. Flores,
521 U.S. 507, 534 (1997); Messiah Baptist Church v. Cty. of Jefferson, 859 F.2d 820, 823–26
(10th Cir. 1988); Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v. City of
Lakewood, 699 F.2d 303, 307–08 (6th Cir. 1983); Church of Jesus Christ of Latter–Day Saints v.
Jefferson Cty., 741 F. Supp. 1522, 1527–34 (N.D. Ala. 1990)).
51
108
that the building of a rabbinical college is an “indispensable instrument[] of effective public
speech,” Saia v. People of State of N.Y., 334 U.S. 558, 561 (1948). Therefore, the Court “cannot
find any violation of the First Amendment’s Free Speech Clause.” Adhi Parasakthi, 721 F.
Supp. 2d at 374. Accordingly, the Court grants Summary Judgment to Defendants on Plaintiffs’
free speech claim and denies Plaintiffs’ Motion for Summary Judgment as to this claim.52
7. Free Association (Claim 3)
In their third cause of action, Plaintiffs allege that the Challenged Laws violate Plaintiffs’
right to free exercise of religion under the First Amendment. As with Plaintiffs’ Free Speech
claim, Plaintiffs’ once again move for summary judgment insofar as the claim does not involve
discriminatory motivation, (Pls.’ Mem. 4), and Defendants cross-move for summary judgment.
In addition to Freedom of Speech, the First Amendment also protects the Freedom of
Association. See Baird v. State Bar of Ariz., 401 U.S. 1, 6 (1971). The Supreme Court has
“identified two types of ‘freedom of association’ that merit constitutional protection: (i) ‘choices
to enter into and maintain certain intimate human relationships’ and (ii) association ‘for the
purpose of engaging in those activities protected by the First Amendment.’” URI Student Senate
In Adhi Parasakthi, the court found that the plaintiffs’ desire to use land for worship
and an annual religious festival was protected by the First Amendment. 721 F. Supp. 2d at 374.
Here, however, Plaintiffs, offer no evidence that they intend to use the land for any other
expressive activity that is foreclosed by the Challenged Laws. Rather, all of the claimed speech
is contingent on construction of the rabbinical college.
52
Plaintiffs also suggest that, if the Court accepts Defendants’ argument that the laws can
simply be amended, the Challenged Laws are a prior restraint on speech because they afford
unbridled discretion to Defendants. (See Pls.’ Opp’n 20–22; Defs.’ Opp’n 35–36.) The Court
need not address this argument because Plaintiffs’ have failed to establish a viable free speech
claim. See Adhi Parasakthi, 721 F. Supp. 2d at 374 (rejecting claim that defendant town’s
conduct was a “prior restraint” because the construction of a Hindu temple was not speech).
109
v. Town of Narragansett, 631 F.3d 1, 12–13 (1st Cir. 2011) (quoting Roberts v. U.S. Jaycees, 468
U.S. 609, 617–18 (1984)); see also Sanitation & Recycling Indus., Inc. v. City of N.Y., 107 F.3d
985, 995–96 (2d Cir. 1997) (same); AK Tournament Play, Inc. v. Town of Wallkill, No. 09–CV–
10579, 2011 WL 197216, at *2 (S.D.N.Y. Jan. 19, 2011) (same).
In evaluating a free association claim, “[t]he first question . . . is whether and to what
extent [the] defendants’ actions burdened that right.” Tabbaa v. Chertoff, 509 F.3d 89, 100 (2d
Cir. 2007). “To be cognizable, the interference with associational rights must be direct and
substantial or significant,” rather than simply make it “more difficult” for Plaintiffs “to exercise
their freedom of association.” Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 228 (1996) (internal
quotation marks omitted). Plaintiffs contend that they seek to “pass[] knowledge from teacher
and mentor to student, student to student, and student to children . . . throughout all the facilities
of the proposed rabbinical college.” (Pls. Opp’n 22 (citing Tabbaa, 509 F.3d at 101 (discussing
protected right of expression “through association at” an Islamic conference).) The connection is
more direct than with respect to Plaintiffs’ free speech rights; Plaintiffs’ arguably cannot
associate at all in the context of their rabbinical studies, see Tartikov, 915 F. Supp. 2d at 627,
because the venue of that association—the rabbinical college—is arguably foreclosed by the
Challenged Laws. Indeed, even if Plaintiffs could “associate” elsewhere, the locational burden is
sufficient to state a claim, see LeBlanc-Sternberg, 781 F. Supp. at 269 (finding that the plaintiffs
had standing to bring a free association claim when they alleged that the defendant village
incorporated “to prevent the Orthodox Jewish community from establishing a synagogue in the
village,” causing other Orthodox Jews to “hesitate[] to move into the [] area.”).
110
“Having found a cognizable burden,” the second question is “the appropriate level of
scrutiny to employ in evaluating [the] defendants’ actions.” Tabbaa, 509 F.3d at 102. “[A]n
infringement on associational rights is not unconstitutional so long as it serves compelling state
interests, unrelated to the suppression of ideas, that cannot be achieved through means
significantly restrictive of associational freedoms.” Id. (brackets and internal quotation marks
omitted). As discussed above, taking the facts in the light that is most favorable to Plaintiffs, a
reasonably jury could conclude that Defendants’ stated interests are not compelling, and that the
Challenged Laws are not narrowly tailored to serve those interests. On the other hand, as
discussed in the next section, taking the facts in the light most favorable to Defendants, it is
plausible that the Challenged Laws do not burden Plaintiffs’ associational rights because they
arguably may still build, and associate at, a rabbinical college in the Village, just not one of the
exact design they desire. That is an issue for a jury, and not the Court, to sort out. Accordingly,
summary judgment is denied to both Parties as to this claim.
8. RLUIPA Claims
a. Substantial Burden (Claim 5)
i. Substance of Claim
In their fifth claim, Plaintiffs assert that Defendants have violated RLUIPA by unlawfully
imposing a substantial burden on their religion. The Parties have filed Cross-Motions for
summary judgment on this claim.
The Substantial Burden provision of RLUIPA
prohibits a governmental entity from applying a land use regulation “in a manner
that imposes a substantial burden on the religious exercise of a person . . . or
institution, unless the government demonstrates that imposition of the burden . . .
is in furtherance of a compelling governmental interest; and . . . [the burden
111
imposed] is the least restrictive means of furthering that compelling governmental
interest.”
WDS I, 386 F.3d at 189 (alterations in original) (quoting § 2000cc(a)(1)); see also Fortress Bible,
694 F.3d at 218–19. This provision “backstops the explicit prohibition of religious
discrimination in the later section of [RLUIPA], much as the disparate-impact theory of
employment discrimination backstops the prohibition of intentional discrimination.” Sts.
Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 900 (7th
Cir. 2005). Thus, for example, “[i]f a land use decision . . . imposes a substantial burden on
religious exercise . . . and the decision maker cannot justify it, the inference arises that hostility
to religion, or more likely to a particular sect, influenced the decision.” Id.
“The statute defines ‘religious exercise’ to include ‘any exercise of religion, whether or
not compelled by, or central to, a system of religious belief,’ and provides further that ‘[t]he use,
building, or conversion of real property for the purpose of religious exercise shall be considered
. . . religious exercise.’” WDS I, 386 F.3d at 186 (alterations in original) (quoting 42 U.S.C. §
2000cc–5(7)(A), (B)); see also Sts. Constantine & Helen, 396 F.3d at 900 (same). “Religious
exercise” under RLUIPA is defined broadly “‘to the maximum extent permitted by the terms of
this chapter and the Constitution.’” WDS II, 504 F.3d at 347 (quoting 42 U.S.C. § 2000cc–3(g));
see also Bikur Cholim, 664 F.Supp.2d at 275, 288 (same). On this basis, the Court previously
found that “the building of a rabbinical college, with the alleged purpose of training rabbinical
judges for religious courts,” together with the multi-family dormitories, “falls squarely within
this definition of ‘religious exercise.’” Tartikov, 915 F. Supp. 2d at 629; see also id. (“[T]he
multi-family dormitories that [Plaintiffs] seek to build are intended to facilitate religious
exercise, thus bringing this accessory use within RLUIPA’s protections.”). Particularly in light
112
of the Court’s discussion of the religious aspect of the proposed multi-family housing above, the
Court sees no reason to disturb this ruling. Cf. Yonkers Racing Corp. v. City of Yonkers, 858
F.2d 855, 869–70 (2d Cir. 1988) (“Seminary grounds . . . form an ‘apron’ of quietude . . . and
contribute to the ‘atmosphere of quiet reflection’ essential to the ‘academic, spiritual,
psychological[,] and pastoral preparation of young men for the priesthood.”). Accordingly,
Plaintiffs’ desire to build the proposed rabbinical college is a religious exercise.
While RLUIPA does not itself define the phrase “substantial burden,” the Second Circuit
has held that a land use regulation constitutes a “substantial burden” within the meaning of
RLUIPA if it “directly coerces the religious institution to change its behavior.” WDS II, 504
F.3d at 349 (emphasis in original). “The burden must have more than a minimal impact on
religious exercise, and there must be a close nexus between the two.” Fortress Bible, 694 F.3d at
219. Among the types of burdens the courts have found to be minimal, and hence not protected
by RLUIPA, are facially neutral permit and variance requirements. Thus, courts have regularly
found that zoning ordinances that merely require religious institutions to go through a routine
permit or variance application process do not run afoul of RLUIPA. See, e.g., id. (“A denial of a
religious institution’s building application is likely not a substantial burden if it leaves open the
possibility of modification and resubmission.”); Konikov v. Orange Cty., 410 F.3d 1317, 1323
(11th Cir. 2005) (“[R]equiring applications for variances, special permits, or other relief
provisions [does] not offend RLUIPA’s goals.”); San Jose, 360 F.3d at 1035–36 (holding that a
city’s requirement that the plaintiff refile a “complete ” permit application did not constitute a
substantial burden); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761–62
(7th Cir. 2003) (“CLUB”) (finding that “the scarcity of affordable land available for development
113
in R zones, along with the costs, procedural requirements, and inherent political aspects of the
Special Use, Map Amendment, and Planned Development approval processes” did not impose
substantial burden on religious institutions); Roman Catholic Bishop of Springfield v. City of
Springfield, 760 F. Supp. 2d 172, 187 (D. Mass. 2011) (finding that a routine application process
did not violate RLUIPA), vacated in part on other grounds, 724 F.3d 78 (1st Cir. 2013); Hale O
Kaula Church v. Maui Planning Comm'n, 229 F. Supp. 2d 1056, 1071 (D. Haw. 2002) (holding
that laws requiring special use permits did not impose a substantial burden on religious
institution). Indeed, to exempt religious institutions from the normal permit/variance process
would result in favoring these institutions, something which neither RLUIPA nor the Free
Exercise Clause more generally require (and which the Establishment Clause might prohibit).
See CLUB, 342 F.3d at 762 (“Otherwise, compliance with RLUIPA would require municipal
governments not merely to treat religious land uses on an equal footing with nonreligious land
uses, but rather to favor them in the form of an outright exemption from land-use regulations . . .
. [N]o such free pass for religious land uses masquerades among the legitimate protections
RLUIPA affords to religious exercise.”); WDS I, 386 F.3d at 189 (“As a legislative
accommodation of religion, RLUIPA occupies a treacherous narrow zone between the Free
Exercise Clause, which seeks to assure that government does not interfere with the exercise of
religion, and the Establishment Clause, which prohibits the government from becoming entwined
with religion in a manner that would express preference for one religion over another, or religion
over irreligion.”).
While RLUIPA does not exempt religious institutions from complying with facially
neutral permit and variance applications procedures, it does not wholly exempt zoning laws from
114
scrutiny. Rather, RLUIPA protects religious institutions from land use regulations that
substantially affect their ability to use their property in the exercise of their religion. See
Fortress Bible, 694 F.3d at 218 (“[T]o hold that PLUIPA 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 . . . . [The court] decline[s] to
endorse a process that would allow a town to evade RLUIPA by what essentially amounts to a
re-characterization of its zoning decisions.”). For example, courts have held zoning ordinances,
or zoning decisions, that significantly lessen the prospect of a religious institution’s being able to
use the property to further its religious mission contravene RLUIPA. See Guru Nanak Sikh
Soc’y of Yuba City v. Cty. of Sutter, 456 F.3d 978, 992 (9th Cir. 2006) (holding that the
defendant county’s two denials of variance permits, under the circumstances, had “to a
significantly great extent lessened the prospect of [the religious institution] being able to
construct a temple in the future,” thus imposing a “substantial burden” on the religious
institution’s “religious exercise”); Roman Catholic Diocese of Rockville Centre v. Inc. Vill. of
Old Westbury, No. 09-CV-5195, 2012 WL 1392365, at *8 (E.D.N.Y. Apr. 23, 2012) (upholding
plaintiff’s facial challenge to zoning law because plaintiff had adequately alleged that the
“conditions imposed by the [law] would significantly restrict the [plaintiff’s] use of their
Property for religious burial purposes”). Courts have also held that zoning schemes that impose
conditions on the use of the property, such as limitations on the size of the facilities that can
permissibly be used by the religious institution, can impose a substantial burden. See Chabad
Lubavitch, 796 F. Supp. 2d at 343 (finding substantial burden allegations sufficient based on
claims that municipality limited plaintiff’s expansion to an area 17,000 square feet smaller than
115
plaintiff proposed, and describing that “if [the plaintiff] conformed its plans to the
[municipality’s] specification, it would need to sacrifice a good portion of the spaces that it
believes is necessary to the exercise of its religion”); Cathedral Church of the Intercessor v. Inc.
Vill. of Malverne, No. 02–CV–2989, 2006 WL 572855, at *8 (E.D.N.Y. Mar. 6, 2006) (finding
plaintiff adequately alleged substantial burden, where space limits imposed by the defendants
“constrained” the ability of the church’s parishioners to “observe or participate” in religious
services).
Courts have likewise found a substantial burden requirement where municipal zoning
schemes impose significant “delay, uncertainty, and expense.” Sts. Constantine & Helen, 396
F.3d at 901; see also WDS II, 504 F.3d at 349 (noting that a complete denial of a religious
institution’s zoning application which results in substantial “delay, uncertainty, and expense” can
be a substantial burden); Grace Church, 555 F. Supp. 2d at 1137–39 (finding that the plaintiff
had established a substantial burden based on the uncertainty and expense resulting from the
municipality’s zoning regulations and from municipal officials’ consistent hostility toward
plaintiff in their review of plaintiff's land use applications). In one recent case, the Second
Circuit even held that when a municipality’s “willingness to consider [a] proposal is
disingenuous, a conditional denial may rise to the level of a substantial burden,” Fortress Bible,
694 F.3d at 219, and “when [a] town’s actions are arbitrary, capricious, unlawful, or taken in bad
faith, a substantial burden may be imposed because it appears that the [religious institution] may
have been discriminated against on the basis of its status as a religious institution,” id. In sum,
“a complete denial” of a religious institution’s intended or applied-for use of its property “is not
necessary for the Court to find that the government regulation . . . impose[s] a substantial burden
116
on religious exercise.” Cathedral Church, 2006 WL 572855, at *8; see also Sts. Constantine &
Helen, 396 F.3d at 899–900 (finding that to establish substantial burden, a religious group need
not “show that there was no other parcel of land on which it could build its church”);
Westchester Day Sch. v. Vill. of Mamaroneck, 379 F. Supp. 2d 550, 556–57 (S.D.N.Y. 2005)
(same).
The Court’s analysis of the discriminatory effect prong of Plaintiffs’ Equal Protection
claim, and the Court’s discussion of Plaintiffs’ Free Exercise claim, see WDS II, 504 F.3d at
348–49 (noting that the test for a substantial burden is guided by Free Exercise jurisprudence),
apply here. While unnecessary to establish a substantial burden, see Tartikov, 815 F. Supp. 2d at
632, Plaintiffs have offered sufficient evidence to at least suggest that the combined effect of the
Challenged Laws is to completely bar the construction of a rabbinical college of the type desired
by Plaintiffs, namely one with the desired curriculum that includes multi-family housing. (See
Pls.’ Mem. 16–17 (citing, inter alia, WDS II, 504 F.3d at 349 (noting a substantial burden exists
when there is no “reasonable opportunity” for a modified application that would suffice).) See
also Roman Catholic Diocese, 2012 WL 1392365, at *8 (E.D.N.Y. Apr. 23, 2012) (granting
motion to amend complaint bringing facial challenge to zoning ordinance, based on the
conclusion that plaintiff had adequately alleged the ordinance imposed a substantial burden by,
among other things, reducing the portion of the property that could be used for religious purposes
and requiring plaintiff to meet certain groundwater testing and landscaping requirements);
Cottonwood, 218 F. Supp. 2d at 1226 (“Preventing a church from building a worship site
fundamentally inhibits its ability to practice its religion.”); cf. Town of Mount Pleasant v. Legion
of Christ, Index No. 14047/97, 2003 WL 23515112, at *5 (N.Y. Sup. Ct. 2003) (finding that
117
defendant’s “option of violating the law or abandoning an important part of its mission” was
“untenable”). Likewise, Plaintiffs have offered sufficient evidence to suggest that the
Challenged Laws were passed with a discriminatory motive. See Fortress Bible, 694 F.3d at
219; WDS II, 504 F.3d at 351–52. Accordingly, Plaintiffs have established an issue of material
fact as to whether the Challenged Laws place a substantial burden on their religious exercise in
violation of RLUIPA. See Tartikov, 915 F. Supp. 2d at 632 (noting that if “[t]he ordinances . . .
in fact completely prevent Plaintiffs from building and running a rabbinical college at all in
Pomona,” then “Plaintiffs have established a substantial burden”).
Further, as discussed above, Defendants have failed to demonstrate as a matter of law that
their passage of the Challenged Laws was justified by compelling state interests and that the laws
were the least restrictive means of furthering those interests. See 42 U.S.C. § 2000cc(a)(1). The
fact that Defendants may, in general, allow other religious and educational uses in the Village is
irrelevant. See Hobbs, 135 S. Ct. at 862 (finding “the availability of alternative means of
practicing religion” irrelevant under RLUIPA). Indeed, it is the religious entity, and not the
Village, that has the right to determine its religious exercise, and RLUIPA protection is “not
limited to beliefs which are shared by all of the members of a religious sect.” Id. at 863 (internal
quotation marks omitted). Accordingly, Defendants are not entitled to summary judgment on
Plaintiffs’ substantial burden claim.
The question of whether Plaintiffs’ are entitled to summary judgment on their substantial
burden claim is a closer one. Certainly, “religious institutions do not have a constitutional right
to build wherever they like.” Fortress Bible, 694 F.3d at 221. Nonetheless, in the Court’s view,
the core of Plaintiffs’ substantial burden claim has two parts: (a) is the proposed rabbinical
118
college, exactly as proposed with libraries, mikvahs, student housing, etc., essential to their
religious exercise, and (b) if not, can Plaintiffs build a rabbinical college that is sufficient to meet
their needs within the confines of the Challenged Laws?
With regard to the necessity of building a rabbinical college exactly as proposed (to the
extent Plaintiffs have even offered a proposal), as discussed above, there are three other
rabbinical colleges in the general area: Kollel Belz, Mechon L’Horoya, and Kollel Beth Yechiel
Mechil of Tartikov. (Pls.’ 56.1 ¶¶ 563–571; Pls.’ Counter 56.1 ¶ 57; see also Savad Decl. Ex. 34
(Resnicoff Dep. Tr.) 19–22 (noting that “Tartikov in Brooklyn and Mechon L’Hoyroa” train
rabbinical judges” but students do not live on campus).) As outlined, however, there are several
differences between the programs at these schools and that which is proposed by the
Congregation. Kollel Belz and Mechon L' Horoya “only teach[] certain sections of the Shulchan
Aruch,” which two individual Plaintiffs contend means these schools cannot train full-time
rabbis, while Kollel Beth Yechiel Mechil of Tartikov simply “has a different program.” Kollel
Belz and Kollel Beth Yechiel Mechil of Tartikov have no libraries or mikvahs on campus (and
Kollel Beth Yechiel Mechil of Tartikov lacks a synagogue), and none of the three schools has
on-campus housing, meaning none can provide the Torah Community envisioned by the
Congregation. (Pls.’ 56.1 ¶¶ 569–572; Defs.’ 56.1 ¶¶ 62–64; Pls.’ Counter 56.1 ¶¶ 55, 58; Decl.
of Jacob Hershkowitz ¶¶ 42–50 (Dkt. No. 146); Decl. of Chaim Rosenberg ¶¶ 44–50 (Dkt. No.
149).) Plaintiffs contend that these differences not only mean that the proposed rabbinical
college would offer a higher quality education and offer the only way to study the full Shulchan
Aruch, but also that a rabbinical college as proposed by Plaintiffs is essential to the exercise of
their religious beliefs. (See Pls.’ 56.1 ¶¶ 449–473, 489, 655; Pls.’ Counter 56.1 ¶ 49).
119
Defendants, of course, contest these claims. They allege that Plaintiffs have not
articulated any religious belief that requires a Torah Community, never mind a rabbinical college
that has mikvahs on campus. (Defs.’ 56.1 ¶ 46; Pls.’ Counter 56.1 ¶¶ 49, 516, 520.) They also
repeatedly cite a portion of the deposition of M. Menczer in which he admits that it is possible to
“study to become a rabbinical judge in a synagogue” without being immersed in a Torah
Community, though M. Menczer also makes clear that to be a “Great Torah scholar,” a student
has to “dedicate [himself] to a certain kind of study program, study day and night, [he has] to
surround [himself] [with] Torah students, and [he has] to exclude [himself] from all worldly
pleasures, all distractions,” and that this is a “requirement” under Jewish law, even though not
necessary to ordination as a rabbi. (Savad Decl. Ex. 26 (M. Menczer Dep. Tr.) 88–90.) Given
Plaintiffs do not allege a complete lack of ordained rabbis in the region, and other schools do
produce rabbinical judges—even if they are not “Great Torah scholars” or full-time rabbinical
judges—whether Plaintiffs require a rabbinical college exactly as proposed is at least a disputed
issue of fact. Based on the credibility of witnesses at trial, a reasonable jury may find that a
Torah Community, while ideal, is not essential to Plaintiffs’ exercise of their religious beliefs,
and that training a number of part-time rabbis would be sufficient to meet the Plaintiffs’ need for
rabbinical judges in the Pomona area, such that the Challenged Laws do not impose a substantial
burden.53
Plaintiffs allege that M. Babad is “one of the few [rabbinical] judges fully trained in all
four books of the Shulchan Aruch. (Pls.’ 56.1 ¶ 553.) While, on the one hand, this suggests that
there may be a lack of adequately fully trained rabbinical judges, it also suggests that the training
that most rabbinical judges receive is in less than the full Shulchan Aruch, implying that training
in the full Shulchan Aruch is unnecessary.
120
53
In this context, it is worth noting that the precise contours of the rabbinical college the
Congregation proposes is far from clear. The only curriculum document, as noted above, was
prepared by a student apparently due to the existence of the instant Action, (see Defs.’ 56.1 ¶¶
26–28; Pls.’ Counter 56.1 ¶¶ 26–28; Gordon Aff. Ex. 10, at 23; see also Gordon Aff. Ex. 21
(proposed curriculum)), and it provides no specific information about the anticipated
curriculum—the Shulchan Aruch—beyond the names of a series of classes (e.g., “Kosher Diet,”
“Prayer,” “Renting, Leasing & Borrowing”), (see Gordon Aff Ex. 22). Additionally, there is no
architectural plan for the rabbinical college contained in the record beyond a “preliminary
concept plan,” (Defs.’ 56.1 ¶¶ 19, 22; Pls.’ Counter 56.1 ¶ 22), nor has any such plan been
formally submitted to the Village for approval, (see Savad Decl. Ex. 27, at 120). Unsurprisingly,
therefore, no teachers have been hired, and the dean admits having done “nothing” so far to
begin the hiring process. (See Defs.’ 56.1 ¶¶ 14, 34–35, 66.) Accordingly, it is difficult for the
Court to determine, before sending the case to a jury, that the Congregation’s vision for a
rabbinical college, while perhaps a vision they hope to pursue, is essential to the exercise of
specific religious beliefs, such that an inability to build that college campus is a substantial
burden.
Of course, even if Plaintiffs cannot prove that their proposed rabbinical college is
essential to their religious exercise, if no rabbinical college of any kind is compatible with the
Challenged Laws, then the Challenged Laws may unlawfully impose a substantial burden. With
regard to the Dormitory Law, it is clear, as outlined, that three other rabbinical colleges in the
area train students without on-campus housing. Therefore, the Dormitory Law arguably is not a
substantial burden on the operation of a rabbinical college. With regard to the Accreditation
121
Law, as discussed above, it is undisputed that the proposed rabbinical college as currently
proposed cannot be accredited by the State of New York or AARTS because, among other
reasons, it is not a degree-granting institution and is not yet operational. (See Pls.’ 56.1 ¶¶ 580–
81, 583–84. 591; Defs.’ Counter 56.1 ¶¶ 580–81, 590.) Nonetheless, Plaintiffs’ expert makes
clear that, at least in general “a higher education institution that trains Rabbinical Judges can be
accredited.” (Gordon Aff. Ex. 15 (Preston Green Expert report), at 18.) Indeed, the expert
makes clear that, with modifications to the proposed rabbinical college curriculum and admission
requirements, the proposed rabbinical college could at least be accredited by AARTS (though the
college would still need to be operational first). (See Pls.’ 56.1 ¶ 594, 596, 598–99, 601–02;
Savad Decl. Ex. 16 (Green Dep. Tr.) at 89–90; Gordon Aff. Ex. 15 (Preston Green Witness
Report) 20–21.) In fact, Plaintiffs’ expert’s suggestion is along these lines:
[I]f the educational institution meets all other criteria for accreditation, Pomona
can grant Tartikov a conditional use variance that would permit the school to
become operational on the condition that the school obtain accreditation in a
reasonable time from the Board of Regents or similar accrediting body. Failure to
obtain accreditation could result in the variance[] being annulled and set aside.
(Gordon Aff. Ex. 15, at 20.) Accordingly, the Court cannot conclude, as a matter of law, that the
Accreditation Law prevents the construction of a rabbinical college in the Village.
With regard to the Wetlands Law, as discussed above, Plaintiffs have offered evidence of
the existence of wetlands covering the west side of the Subject Property along Route 306 and
that the access road that runs through the west side would have to be improved for the proposed
rabbinical college to be usable. (See Beall Decl. ¶ 280 & Ex. T (survey map of the Subject
Property); Tauber Decl. ¶¶ 5, 28; see also Pls.’ 56.1 ¶ 180 (indicating that Mayor Marshall was
generally aware of the existence of wetlands on the Subject Property); Defs.’ Counter 56.1 ¶ 180
122
(same).) However, as noted above, there are holes in Plaintiffs’ claim that the Wetlands Law
imposes a substantial burden, namely (a) a lack of evidence that Plaintiffs cannot build an access
road through the other side of the property, from Route 202, and (b) the possibility that the
Wetlands Law is duplicative of state and federal regulations. If the Wetlands Law does not
prevent the construction of an access road, or otherwise does not create an additional burden
beyond that created by state and federal law, then it does not impose a substantial burden on
Plaintiffs’ religious exercise.
Accordingly, because a series of disputed material facts remain as to (a) the exact form
the rabbinical college must take in order to be sufficient for Plaintiffs’ exercise of religion, and
(b) to what extent the Challenged Laws alone make it difficult (or impossible) to build a
rabbinical college in the Village, summary judgment is denied to Plaintiffs on their substantial
burden claim.
ii. Constitutional Challenge
Defendants also challenge the constitutionality of RLUIPA’s substantial burden
provision. (Defs.’ Mem. 54–59.) While the courts, as the United States points out, normally
avoid addressing constitutional questions when possible, see Allstate Ins. Co. v. Serio, 261 F.3d
143, 149–50 (2d Cir. 2001) (“It is axiomatic that the federal courts should, where possible, avoid
reaching constitutional questions.”); see also Slack v. McDanie, 529 U.S. 472, 485 (2000)
(articulating this rule), because the Court has found that Plaintiffs’ substantial burden claim
survives summary judgment the Court must address the merits of Defendants’ constitutional
challenge. Plaintiffs, as well as Intervenor United States, oppose Defendants’ claim.
123
Defendants contend that the substantial burden provision is unconstitutional on its face
because it “distort[s] the relationship between the local and state governments and the federal
government in violation of settled federalism principles,” relying on the “Tenth Amendment’s
limitations on Article I power,” and further argue that the provision is “beyond the power of
Congress, a violation of the separation of powers, and the Establishment Clause.” (Defs.’ Mem.
55 (citing Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 135–36 (3d Cir. 2002)
(“[L]and use law is one of the bastions of local control, largely free of federal intervention.”); id.
at 57). In support of their contention, Defendants cite, among other cases, Gorieb v. Fox, 274
U.S 603 (1927), for the proposition that “[s]tate legislatures and city councils, who deal with the
situation from a practical standpoint, are better qualified than the courts to determine the
necessity, character, and degree of regulation which . . . new and perplexing conditions require;
and their conclusion should not be disturbed by the courts,” id. at 608. Second, Defendants
contend that the “RLUIPA formula . . . does not regulate land use principles per se, but rather
never uses a constitutional standard of review to reduce the effect of state and local land use law
across the board,” further asserting that “Congress never considered actual land use issues, such
as the importance or value of residential neighborhoods, setbacks, parking and traffic concerns,
density, property values, or aesthetics,” when debating RLUIPA’s merits. (Defs.’ Mem. 56
(emphasis omitted).) Third, Defendants note that the Supreme Court has explicitly reserved
judgment on the constitutionality of RLUIPA’s land use provisions, Cutter v. Wilkinson, 544
U.S. 709, (2005), id. 716 n.3 (“Section 2 of RLUIPA is not at issue here. We therefore express
no view on the validity of that part of the Act.”), and limited the scope of RLUIPA in Sossamon
124
v. Tex., 131 S. Ct. 1651 (2011), see id. at 1656–57.54 Fourth and finally, in support of their
Establishment Clause challenge, Defendants contend that RLUIPA unconstitutionally “grant[s]
religious developers a privilege and financial advantages that no other developer can obtain.”
(Defs.’ Mem. 58 (citing, inter alia, Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 14 (1989); Bronx
Household of Faith v. Bd. of Educ., 750 F.3d 184, 207–09 (2d Cir. 2014)).
In response, Plaintiffs rely, in principal, on the Second Circuit’s decision in WDS II. (See
Pls. Opp’n 57.) In that case, the Second Circuit held, among other things, that RLUIPA does not
violate the Tenth Amendment because it “leaves it to each state to enact and enforce land use
regulations as it deems appropriate so long as the state does not substantially burden religious
exercise in the absence of a compelling interest achieved by the least restrictive means,” WDS II,
504 F.3d at 354–55, and that “RLUIPA’s land use provisions do not violate the [E]stablishment
[C]lause,” id. at 355. Defendants do not address this holding, which the Court is required to
follow. See Fernandes v. Johnson, No. 12-CV-2774, 2013 WL 796542, at *3 (S.D.N.Y. Mar. 5,
2013) (“This [c]ourt must follow binding Second Circuit precedent unless a subsequent decision
of the Supreme Court so undermines it that it will almost inevitably be overruled by the Second
Circuit.” (brackets and internal quotation marks omitted)); see also Fortress Bible, 734 F. Supp.
2d at 509 (finding that RLUIPA does not violate the Establishment Clause because “the Second
Defendants also contend that RLUIPA was passed illegally, noting that “[i]t was not
passed unanimously,” and that it was enacted “negligently or intentionally without reference to
the most relevant Supreme Court doctrine in derogation of federalism.” (Defs.’ Mem. 58.)
However, there is certainly no requirement that Congress must pass legislation unanimously, see
Skaggs v. Carle, 110 F.3d 831, 841 (D.C. Cir. 1997) (“[T]he framers positively concluded that a
simple ‘majority vote’ was sufficient for the passage of legislation in Congress.”), nor is there
any authority suggesting that Congress must reference any particular “Supreme Court doctrine”
in the legislative process or that failing to do so is a violation of federalism, cf. WDS II, 504 F.3d
at 354–55 (finding that RLUIPA does not violate the 10th Amendment).
125
54
Circuit has held that RLUIPA’s land use provisions . . . do not violate the Establishment
Clause”). Moreover, as the United States points out in its brief, the precedents that Defendants
cite do not support their claims. For example, in Gorieb, the Supreme Court only noted that
local land use decisions “should not be disturbed by the courts, unless clearly arbitrary and
unreasonable,” 274 U.S. at 608, not that Congress could not legislate in this field, (see Br. of the
United States of Am. in Intervention in Defense of the Religious Land Use and Institutionalized
Persons Act of 2000 (“USA Br.”) 17 (Dkt. No. 183).) Likewise, in Congregation Kol Ami, the
court rejected the defendants’ challenge to RLUIPA. (See USA Br. 18 (citing 309 F.3d 120).)
See also Congregation Kol Ami v. Abington Twp., No. 01-CV-1919, 2004 WL 1837037, at *9–
15 (E.D. Pa. Aug. 17, 2004).
Additionally, Plaintiffs properly characterize Defendants’ theory of unconstitutionality as
relying only on the proposition that “local governments engage in land use regulation” and that
“Congress is powerless to regulate in that sphere,” which Plaintiffs correctly point out would
“render innumerable federal statutes” that affect local land use unconstitutional, including the
Americans with Disabilities Act, Fair Housing Act, and Clean Water Act. (Pls.’ Opp’n 57–58.)
See also United States v. Maui Cty., 298 F. Supp. 2d 1010, 1015 (D. Haw. 2003) (“Although
RLUIPA does ‘intrude’ to some extent on local land use decisions, there is nothing about it that
violates principles of federalism . . . if the federal statute is otherwise grounded in the
Constitution. RLUIPA is not federal zoning of [local] land; it is federal enforcement of federal
rights.”). Plaintiffs further argue that RLUIPA’s substantial burden provision has a jurisdictional
limitation, providing that it can only be applied when the government action affects interstate
commerce, is imposed in a program that receives federal funding, or in a circumstance where
126
individualized assessments of the property are involved. (Pls.’ Opp’n 58 (citing 42 U.S.C. §
2000cc(a)(2)).) The substantial burden provision is thus grounded as a proper exercise of
Congress’s power under the Spending Clause, Commerce Clause, and § 5 of the Fourteenth
Amendment, see WDS II, 504 F.3d at 354 (“[T]he Supreme Court has made plain [that] the
satisfaction of [] a jurisdictional element . . . is sufficient to validate the exercise of congressional
power because an interstate commerce nexus must be demonstrated in each case for the statute in
question to operate.”); see also Fortress Bible, 734 F. Supp. 2d at 509 (“By limiting RLUIPA’s
scope to cases that present one of these jurisdictional nexuses, Congress alternatively grounded
RLUIPA, depending on the facts of a particular case, in the Spending Clause, the Commerce
Clause, and § 5 of the Fourteenth Amendment.”).55
Defendants do not respond to either of these contentions, nor do they claim that any of
the jurisdictional elements of RLUIPA’s substantial burden provision is not met here; they only
indicate that they “stand by their facial challenge” in their reply. (Defs.’ Reply 19.)
Accordingly, the Court finds that the governing case law supports the conclusion that RLUIPA,
because of its jurisdictional provision and as has already been determined by the Second Circuit,
constitutes a proper constitutional exercise of Congress’ power and does not run afoul of any
constitutional provisions. See Sossamon, 131 S. Ct. at 1664 (“Though the Court reserves the
55
It is also worth noting that Plaintiffs at least make an argument, however tenuous, as to
why the proposed rabbinical college would affect interstate commerce, which Defendants do not
rebut, (see Pls.’ Mem. 9 (“Plaintiffs’ use and development of the Subject Property
unquestionably meets this criteria.” (citing Chabad Lubavitch, 768 F.3d at 183, 192 (construction
of religious facility meets jurisdictional element); WDS II., 504 F.3d at 354 (“[C]ommercial
building construction is activity affecting interstate commerce.”), such that the application of
RLUIPA’s substantial burden provision in these circumstances is constitutional under the
Commerce Clause, see WDS II, 504 F.3d at 354–55.
127
general question whether RLUIPA is a valid exercise of Congress’ power under the Spending
Clause, there is apparently no disagreement among the Federal Courts of Appeals.”); see also
Sossamon v. Lone Star State of Tex., 560 F.3d 316, 328, n.34 (5th Cir. 2009) (“Every circuit to
consider whether RLUIPA is Spending Clause legislation has concluded that it is constitutional
under at least that power.”).
Apart from their facial challenge, Defendants also contend that, as applied, the substantial
burden provision is unconstitutional because, more than asking the court to “‘become [a] super
land-use board[] of appeals,’” (Defs.’ Mem. 59 (quoting Sameric Corp. v. City of Phila., 142
F.3d 582, 598 (3d Cir. 1998)), “the Court is being asked to step into the shoes of the original
land-use board, to abandon the local laws regarding housing, and to sua sponte grant permission
for their hypothetical plan.” According to Defendants, “it is difficult to overstate the steepness
of the slippery slope.” (Id.) In their Reply, Defendants further allege that, as applied in this
case, RLUIPA’s substantial burden provision would violate the Due Process clause, (Defs.’
Reply 20 (citing League of Residential Neighborhood Advocates v. City of L.A., 498 F.3d at
1052, 1053)), though the explanation and authority for this claim is missing from Defendants’
submissions.
In response, Plaintiffs insist that they do not seek the Court’s approval of their plan
without proceeding through the applicable approval process, but rather seek only “the right to
apply.” (Pls.’ Opp’n 59.) While this does not appear to be exactly true, given, in their Second
Amended Complaint, Plaintiffs sought a declaratory judgment directing the Village to “grant
[Plaintiffs’] site plan final approval for a [r]abbinical [c]ollege and directing the Building
Inspector to issue a building permit for up to 250 residential units,” (SAC 68), this ground for
128
relief is unripe because there is no pending application before the Village. It is in this vein that
the United States argues, convincingly, that ripeness provides sufficient protection of
Defendants’ federalism interests because it “affords local officials an opportunity to adjudicate
an application before the dispute may be brought to federal court,” as embodied in the Court’s
finding that Plaintiffs’ as-applied challenges were unripe in its 2013 Opinion and Order. (USA
Br. 22 (citing Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 348 (2d Cir. 2005).)
Indeed, simply striking down the Challenged Laws (as opposed to directing acceptance of
Plaintiffs’ proposed rabbinical college) would not force the Village to make particular land use
decisions or “short circuit its land use decision-making process,” but rather would require the
Village to craft new land use laws that are consistent with the requirements of federal law (and,
of course, the Constitution). (Id. at 23.)
At its core, the Court finds that Defendants’ fleeting as-applied challenge, which does not
appear to be meaningfully different from its facial challenge, is wanting of legal authority. See
Lima v. Hatsuhana of USA, Inc., No. 13-CV-3389, 2014 WL 177412 (S.D.N.Y. Jan. 16, 2014)
(“Issues mentioned in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” (alteration omitted)). The Court agrees with the United
States that, as limited by the Court’s 2013 Opinion and Order, a finding in favor of Plaintiffs
does not “require the imposition of a housing development on Pomona in contravention of the
zoning on the property without the applicant having to file an application or pursue ordinary land
us procedures.” (Defs.’ Reply 20.) Indeed, as noted “religious institutions do not have a
constitutional right to build wherever they like,” Fortress Bible, 694 F.3d at 221, and
invalidation of the Challenged Laws is not tantamount to a finding that Plaintiffs should “prevail
129
in their quest to build a rabbinical college on the Subject Property,” Tartikov, 915 F. Supp. 2d at
623; see also id. at 638 (“This ruling is not tantamount to saying that Plaintiffs will be able to
build a rabbinical college, let alone one that is the size or structure [of] their liking.”).
Accordingly, Defendants’ as applied challenge is denied.
b. Discrimination and Exclusion
i. Equal Terms (Claim 6)
In their sixth claim, Plaintiffs assert that Defendants have violated RLUIPA by
unlawfully imposing a land use regulation that treats the proposed rabbinical college on less than
equal terms with nonreligious institutions. Unlike Plaintiffs’ other RLUIPA claims, only
Defendants have moved for summary judgment on this claim. (See Pls.’ Mem. 4.) The Equal
Terms provision of RLUIPA provides that “[n]o government shall impose or implement a land
use regulation in a manner that treats a religious assembly or institution on less than equal terms
with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1). This “statutory
command ‘requires equal treatment of secular and religious assemblies and allows courts to
determine whether a particular system of classifications adopted by a city subtly or covertly
departs from requirements of neutrality and general applicability.’” Primera Iglesia Bautista
Hispana of Boca Raton, Inc. v. Broward Cty., 450 F.3d 1295, 1307 (11th Cir. 2006) (brackets
omitted) (emphasis in original) (quoting Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d
1214, 1232 (11th Cir. 2004)). As with the Substantial Burden component of RLUIPA, the
meaning of the Equal Terms section is far from clear, see Guru Nanak, 326 F. Supp. 2d at 1154
(asserting that this section “is even less clear” than the “substantial burden” section), but the
courts have determined that the “substantial burden and nondiscrimination provisions are
130
operatively independent of one another,” CLUB, 342 F.3d at 762. Moreover, some courts have
concluded that the nondiscrimination provisions of RLUIPA, which include the Equal Terms
provision, “codify existing Equal Protection Clause and Free Exercise Clause jurisprudence.”
Petra Presbyterian Church v. Vill. of Northbrook, No. 03–CV–1936, 2003 WL 22048089, at *11
(N.D. Ill. Aug. 29, 2003); accord Guru Nanak, 326 F. Supp. 2d at 1155; Freedom Baptist
Church of Del. nty. v. Twp. of Middletown, 204 F. Supp. 2d 857, 869 (E.D. Pa. 2002).
As the Court explained in its 2013 Opinion and Order, there are four fundamental
elements of an Equal Terms claim: (1) the plaintiff must be a religious institution; (2) subject to a
land use regulation; that (3) treats the religious institution on less than equal terms; with (4) a
nonreligious institution. See Primera, 450 F.3d at 1307–08; Tartikov, 915 F. Supp. at 634; see
also Chabad Lubavitch, 768 F.3d at 197 (noting that a plaintiff must produce prima facie
evidence of “unequal treatment”). As far as how to prove an “equal terms” claim, however,
“[d]ivision exists” among the Federal Circuits as to “whether the . . . provision invariably
requires evidence of a ‘similarly situated’ secular comparator . . . and, where such evidence is
necessary, on what ground the comparison much be made.” Chabad Lubavitch, 768 F.3d at 196;
see also Lighthouse Inst. for Evangelism, Inc., v. City of Long Branch, 510 F.3d 253, 266 (3rd
Cir. 2007) (“[A] regulation will violate the Equal Terms provision only if it treats religious
assemblies or institutions less well that secular assemblies or institutions that are similarly
situated as to the regulatory purpose.” (emphasis omitted)); River of Life Kingdom Ministries v.
Vill. of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010) (summarizing various approaches and
advocating a focus on zoning criteria rather than regulatory purpose). The Second Circuit has
thus far “declined to define ‘the precise outlines of what it takes to be a valid comparator under
131
RLUIPA’s equal-terms provision.’” Chabad Lubavitch, 768 F.3d at 197 (citing Third Church of
Christ, Scientist v. City of N.Y., 626 F.3d 667, 669 (2d Cir. 2010)).
With that division in mind, the consensus among courts is that there are three distinct
kinds of Equal Terms violations: (i) a statute that facially differentiates between religious and
secular assemblies or institutions; (ii) a facially neutral statute that is nevertheless
“gerrymandered” to place a burden solely on religious, as opposed to secular, assemblies or
institutions; and (iii) a truly neutral statute that is selectively enforced against religious, as
opposed to secular, assemblies or institutions. See Primera, 450 F.3d at 1308; accord Vision
Church, 468 F.3d at 1003 (following same analysis); Church of Scientology of Ga., Inc. v. City of
Sandy Springs, 843 F. Supp. 2d 1328, 1361 (N.D. Ga. 2012) (same); Covenant Christian
Ministries, Inc. v. City of Marietta, No. 06–CV–1994, 2008 WL 8866408, at *13 (N.D. Ga. Mar.
31, 2008) (same); Family Life Church v. City of Elgin, 561 F. Supp. 2d 978, 989 (N.D. Ill. 2008)
(same).
While, as discussed above, the Challenged Laws are facially neutral, the Court previously
found that Plaintiffs had only stated a “gerrymander” claim, and Plaintiffs have not provided any
evidence—or advanced any claim—to support a different theory here. Tartikov, 915 F. Supp. 2d
at 636. While Defendants contend that Plaintiffs’ failure to offer evidence of “‘a secular
comparator that is similarly situated as to the regulatory purpose of the regulation in question,’”
sinks Plaintiffs’ Equal Terms claim, (Defs.’ Mem. 49 (quoting Lighthouse, 510 F.3d at 264), as
the Court previously found, a gerrymander claim does not require the pleading of comparators.
See Lukumi, 508 U.S. at 535 (defining “religious gerrymander” as “an impermissible attempt to
target [a group] and their religious practices” (internal quotation marks omitted)); Tartikov, 915
132
F. Supp. 2d at 636 (discussing allegations of intent that support a gerrymander claim).
Therefore, as discussed above in the context of Plaintiffs’ Equal Protection and Free Exercise
Claims, which are codified in RLUIPA’s Equal Terms provision, id. at 633, the evidence, taken
in a light most favorably to Plaintiffs, provides sufficient support to the contention that
Defendants engaged in a religious gerrymander, as it suggests that Defendants used the
Challenged Laws to uniquely restrict the ability of Plaintiffs to build their rabbinical college in
the Village. Accordingly, summary judgment is denied.
ii. Nondiscrimination (Claim 7)
The Court denies summary judgment to Defendants’ on Plaintiffs’ Nondiscrimination
claim “for the same reasons” as its Equal Terms claim because “the elements of a
Nondiscrimination claim differ little, if at all, from an Equal Terms claim.” Tartikov, 915 F.
Supp. 2d at 636.
iii. Exclusions and Limits (Claims 8–9)
The exclusions and limits provision of RLUIPA provides that “[n]o government shall
impose or implement a land use regulation that . . . (A) totally excludes religious assemblies
from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures
within a jurisdiction.” 42 U.S.C. § 2000cc(b)(3). The purpose of this provision “is not to
examine the restrictions placed on individual landowners, but to prevent municipalities from
broadly limiting where religious entities can locate.” Adhi Parasakthi, 721 F. Supp. 2d at 387;
accord Rocky Mountain Christian Church v. Bd. of Cty. Comm’rs, 613 F.3d 1229, 1238 (10th
Cir. 2010) (noting that district court’s jury instruction properly required plaintiff to establish that
the county’s “regulation, as applied or implemented, has the effect of depriving both [plaintiff]
133
and other religious institutions or assemblies of reasonable opportunities to practice their
religion, including the use and construction of structures, within [the defendant] [c]ounty”
(internal quotation marks omitted)).
As noted above, it is at least arguable that the effect of the Challenged Laws is to
completely exclude the rabbinical college from the Village and that pursuing a text amendment
or the like is futile. See Rocky Mountain, 613 F.3d at 1238 (upholding jury’s verdict for
RLUIPA plaintiff based, in part, on evidence that county official stated that it would allow only a
100–seat synagogue because “there will never be another mega church . . . in Boulder County,”
and on testimony that another congregation ran out of money going through the defendant
county’s special use application process (alteration in original) (internal quotation marks
omitted)); see also Tartikov, 915 F. Supp. 2d at 637–38 (denying motion to dismiss as to this
claim). However, as discussed in the context of Plaintiffs’ substantial burden claim, Plaintiffs
have failed to offer sufficient evidence to establish as a matter of law that the rabbinical college,
as theoretically proposed, is essential to Plaintiffs’ religious exercise or that the effect of the
Challenged laws is to completely exclude the construction of any rabbinical college in the
Village. Accordingly, summary judgment is denied as to this claim.
10. Remaining Claims/Defenses
a. Fair Housing Act (Claims 11 and 12)
The FHA “prohibits governmental agencies from implementing or enforcing housing
policies in a discriminatory manner.” Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 573
(2d Cir. 2003). Under the FHA, “it shall be unlawful [t]o . . . make unavailable . . . a dwelling to
any person because of race [or] color.” 42 U.S.C. § 3604(a); see also Orange Lake Assocs., Inc.
134
v. Kirkpatrick, 21 F.3d 1214, 1227 (2d Cir. 1994) (same). Because, as discussed above,
Plaintiffs have sufficiently raised an issue of material fact as to whether “the Village adopted the
Challenged Laws with a discriminatory purpose,” namely to prevent the construction of the
rabbinical college and its associated housing, Tartikov, 915 F. Supp. 2d at 610, their FHA claims
also survive summary judgment, see Ryan v. Ramsey, 936 F. Supp. 417, 427 (S.D. Tx. 1996)
(denying summary judgment on FHA claim because there were “outstanding issues of material
fact” as to discriminatory intent, namely whether “a jury could have reasonably inferred that race
was a significant factor in the defendants’ decision”). It also bears noting that in light of the
Supreme Court’s recent decision in Tex. Dep’t of Housing and Cmty. Affairs v. Inclusive Cmty.
Project, 135 S. Ct. 2507 (2015), Plaintiffs’ Fair Housing Act claim would also survive on a
theory of disparate impact, see id. at 2525 (“The Court holds that disparate-impact claims are
cognizable under the Fair Housing Act . . . . “); see also LeBlanc-Sternberg, 67 F.3d at 425 (“An
FHA violation may be established on a theory of disparate impact or one of disparate
treatment.”), because Plaintiffs have raised an issue of material fact as to whether the facially
neutral Challenged Laws have a “significantly adverse or disproportionate impact on persons of
a particular type,” namely by preventing a subsection of the Orthodox Hasidic community from
building a rabbinical college, Tsombanidis, 352 F.3d at 574.
b. Berenson (New York Common Law) (Claim 14)
Plaintiffs allege that Defendants violated the Berenson doctrine by “not consider[ing] the
present regional housing needs of the region in which the Village is located, and that such
regional housing needs are not otherwise adequately provided for,” namely those “in need of
adult student housing or those who can only afford low or moderate income housing in the
135
Village and in the region in which the Village is located.” (SAC ¶¶ 292–94.) Accordingly,
Plaintiffs contend that Defendants “either acted for an exclusionary purpose, or the Zoning Code
. . . brought about an exclusionary effect.” (Id. ¶ 295.) They call on the Court to direct
Defendants “to provide a comprehensive zoning plan to meet the regional needs and the
requirements of the Jewish community seeking religious education, and to provide for multifamily housing that can provide affordable housing to Plaintiffs and others who seek religious
educational opportunities within the Village.” (Id. ¶ 297.)
Berenson provides that “[i]n determining the validity of an ordinance excluding
multifamily housing as a permitted use, [the court] must consider the general purposes which the
concept of zoning seeks to serve. The primary goal of a zoning ordinance must be to provide for
the development of a balanced, cohesive community which will make efficient use of the town’s
available land.” Berenson v. Town of New Castle, 341 N.E.2d 236, 241 (N.Y. 1975). Under
Berenson, a board passing a zoning ordinance must (1) have “provided a properly balanced and
well[-]ordered plan for the community,” and (2) “in enacting a zoning ordinance, [given]
consideration . . . to regional needs and requirements,” including “not only the general welfare of
the residents of the zoning township, but . . . also . . . the effect of the ordinance on the
neighboring communities.” Id. at 242; see also Cont’l Bldg. Co. v. Town of N. Salem, 625
N.Y.S.2d 700, 703 (App. Div. 1995) (same). Accordingly, “a zoning ordinance enacted for a
statutorily permitted purpose will be invalidated only if it is demonstrated that it actually was
enacted for an improper purpose or if it was enacted without giving proper regard to local and
regional housing needs and has an exclusionary effect.” Robert E. Kurzius, Inc. v. Inc. Vill. of
136
Upper Brookville, 414 N.E.2d 680, 683 (App. Div. 1980) (internal quotation marks omitted)
(emphasis added)); Cont’l Bldg. Co., 625 N.Y.S.2d at 703 (same).
Defendants are correct that “discovery has uncovered no facts showing there are regional
needs for fair housing.” (Defs.’ Mem. 54.) Indeed, the only evidence that Plaintiffs identify, in a
single paragraph supporting their Berenson claim, is a fact that they claim Defendants admit: a
need for affordable, multifamily housing in the Village’s Master Plan. (Pls. Opp’n 57 (citing
Pls.’ 56.1 ¶ 26).) However, Defendants explicitly dispute this “fact,” (Defs.’ Counter 56.1 ¶ 26),
and Plaintiffs overstate the evidence: Ulman only indicated in her deposition that “multi-family
housing [w]as something to be looked at for future use within the Village,” (Savad Decl. Ex. 12,
at 180–81), that the Master Plan itself only notes a need for “housing to accommodate an aging
population and small families” (Savad Decl. Ex. 151 (Village of Pomona Master Plan Update)
21 (emphasis added)), and that it would be “inappropriate” to “increase[] development density”
in order to create “affordable housing,” (id. at 22). In fact, Defendants argue in their Reply that
there is adequate multi-family housing nearby in Ramapo and in the region, (Defs.’ Reply 19
(citing Pls.’ 56.1 ¶ 138)), though, granted, the only evidence offered for that assertion is the
existence of the ASHL.56 Nonetheless, the Court concludes that there is insufficient evidence in
the record to suggest that the Village failed to give consideration to regional housing needs when
passing the Challenged Laws or that there is a general need for multi-family housing in the
region.
56
Defendants reliance on this law is ironic, given they challenged the ASHL upon its
adoption. (See Pl.’s 56.1 ¶ 138.)
137
As discussed above, however, the Berenson test is disjunctive. Cf. N. Shore Unitarian
Universalist Soc., Inc. v. Inc. Vill. of Upper Brookville, 493 N.Y.S.2d 564, 567 (App. Div. 1985)
(“In sum, [the] plaintiff has failed to show that the ordinance in question was enacted with an
exclusionary purpose, or that it ignored local or regional housing needs.” (emphasis added)).
Therefore, even though Plaintiffs have failed to demonstrate that the Challenged Laws were
“enacted without giving proper regard to local and regional housing needs and has an
exclusionary effect,” there is, as discussed extensively in this Opinion and Order, sufficient
evidence for a reasonable jury to conclude that the Village enacted the Challenged Laws for an
improper exclusionary purpose, namely to discriminate against the Hasidic Jewish community.
Therefore, the Court denies Defendants’ Motion as to Plaintiffs’ Berenson claim.
c. Remaining State Claim
The only remaining claim is claim 10 (Article 1 §§ 3, 8, 9 and 11 of the New York State
Constitution), which concerns freedom of worship, assembly, and equal protection. (SAC ¶¶
274–75.)57 The Parties cross-move for summary judgment on this claim. Defendants contend
that these claims should be resolved according to the same (or similar) standards as the
corresponding federal claims. (See Defs.’ Mem. at 18–19 n.14 (seeking summary judgment on §
3 claim), 44 n.28 (seeking summary judgment on § 11 and New York Civil Rights Law claims
(citing, inter alia, Hayut v. State Univ. of N.Y., 352 F.3d 733, 754–55 (2d Cir. 2003) (applying
Equal Protection clause analysis to Article 1, § 11 claim)), 53 n.30 (seeking summary judgment
57
The Court previously dismissed Plaintiffs’ New York Civil Rights Law § 40–c claim
(claim 11) as unripe, and, despite discussing that claim in the motion papers, (see Defs.’ Mem.
44 n.28; Pls.’ Opp’n 26), neither Party has offered any reason for the Court to re-examine that
ruling here. See Tartikov, 915 F. Supp. 2d at 607.
138
on § 8 and § 9 claims (citing Tartikov, 915 F. Supp. 3d at 623 (“The corollary provisions for the
First Amendment’s Free Speech and Free Association Clauses in the New York Constitution are
interpreted consistently with the Federal Constitution.”)).) Plaintiffs appear to agree, and first
pair their analysis of their § 3 claim with their RLUIPA substantial burden claim, noting that,
“like RLUIPA, this provision[] applies to ‘incidental burdens’ on religious exercise.” (Pls.’
Mem. 10 (citing Tartikov, 915 F. Supp. 2d at 619 n.20).) They do so for good reason, as “in
analyzing a state free exercise claim, ‘when the State imposes an incidental burden on the right
to free exercise of religion,’ the courts are to consider the ‘interest advanced by the legislation
that imposes the burden,’ and then ‘the respective interests must be balanced to determine
whether the incidental burdening is justified.’” Tartikov, 915 F. Supp. 2d at 618 n.20 (quoting
Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 466 (N.Y. 2006)).
Accordingly, for the same reason that the Court denied summary judgment on Plaintiffs’
RLUIPA substantial burden claim—namely failure to establish a burden on the exercise of
religion as a matter of law—the Court also denies summary judgment on Plaintiffs’ § 3 claim.
Plaintiffs also pair their analysis of their § 8 claim with their Free Speech claim, noting
that the New York Constitution “provides additional protection for expression and expressive
activity.” (Pls.’ Mem. 27.) As noted in the Court’s 2013 Opinion and Order, and as Defendants
point out, “the corollary provisions for the First Amendment’s Free Speech and Free Association
Clauses in the New York Constitution,” namely §§ 8 and 9, “are interpreted consistently with the
Federal Constitution,” Tartikov, 915 F. Supp. 3d at 623, and accordingly the Court resolves those
claims in the same way. Therefore, for the same reasons as those discussed above, the Court
grants summary judgment to Defendants as to Plaintiffs’ § 8 claim because Plaintiffs have failed
139
to show that the construction of a rabbinical college constitutes an exercise of free speech, but
denies summary judgment to both Parties as to Plaintiffs’§ 9 claim (free association).58
Additionally, because the “equal protection provisions of the New York Constitution are
interpreted consistently with the corollary provisions of the Federal Constitution,” Tartikov, 915
F. Supp. 2d at 615 n.19 (citing People v. Kern, 554 N.E.2d 1235, 1240–41 (App. Div. 1990), for
the reasons stated above, the Court denies summary judgment to Defendants as to Plaintiffs’ § 11
claim.
d. Affirmative Defenses
Plaintiffs also move for “summary judgment dismissing Defendants’ affirmative
defenses.” (Pls.’ Mem. 57.) Defendants concede that their third, fourth, seventh, eighth, ninth,
tenth, eleventh, twelfth, thirteenth, fifteenth, seventeenth, eighteenth, nineteenth, twenty-third,
twenty-fourth, and twenty-fifth affirmative defenses can be dismissed. (See Defs.’ Opp’n 41–
46.) Likewise, Defendants’ first (failure to state a claim), second (standing), fifth (lack of case or
controversy), sixteenth (constitutionality of RLUIPA), twenty-sixth (failure to assert facial
challenge), and twenty-seventh (residential or housing use is not an exercise of religion or
religion use) defenses have already been addressed, and explicitly or implicitly rejected, in this
Opinion and Order and the Court’s 2013 Opinion and Order. (See Defs.’ Answer (Dkt. No. 55);
see also Defs.’ Opp’n 41 n.26 (noting that Defendants’ affirmative defenses were stated in the
Answer filed as Docket Number 55).) Accordingly, the only affirmative defenses that remain in
While Plaintiffs cite O’Neill v. Oakgrove Const., Inc., 523 N.E.2d 277 (N.Y. 1988), for
the proposition that § 8 is “more expansive” than the First Amendment, id. at 531 (Kaye, J.,
concurring), the portion of the opinion cited is the concurrence, and there is no authority in that
opinion for determining that the building of a rabbinical college is speech.
140
58
dispute are Defendants’ sixth (failure to exhaust), fourteenth (unclean hands), and twentieth,
twenty-first, and twenty-second (immunity).
Regarding exhaustion, Plaintiffs argue that “[e]xhaustion is not required where the
questions presented include facial challenges to legislation, or for claims brought under 42
U.S.C. § 1983.” (Pls.’ Mem. 60 (citing Oesterich v. Selective Serv. Bd., 393 U.S. 233, 234
(1966); Karaebel v. N.Y. City Dep’t of Hous. Pres.and Dev., 959 F.3d 395, 404 (2d Cir. 1992)).
Defendants, in response, contend that Oesterich is inapplicable here, that, in general, “a party
must exhaust his administrative remedies before seeking judicial review,” (Defs.’ Opp’n 43
(citing Gonzalez v. Perrill, 919 F.2d 1, 2 (2d Cir. 1990))), and that exhaustion is distinct from
ripeness, (id. (citing Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172,
193 (1985), superseded by statute on other grounds, 47 U.S.C. § 332(c)(7)(B)(v), as stated in
Sprint Spectrum L.P. v. City of Carmel, 361 F.3d 998, 1004 (7th Cir. 2004))). Specifically,
Defendants rely heavily on the Second Circuit’s decision in Murphy v. New Milford Zoning
Comm’n, 402 F.3d 342 (2d Cir. 2005), in which the court required the plaintiffs to apply to a
local zoning board of appeals prior to proceeding with their lawsuit because “the resolution of
the constitutional and statutory claims . . . hinge[d] on factual circumstances not yet fully
developed,” id. at 351
The Court concludes that exhaustion is not required for Plaintiffs’ remaining claims, as
the overwhelming weight of authority indicates that exhaustion is not required for facial
challenges. See Lamar, 356 F.3d at 374 (explaining that “[the plaintiff] need not have first
sought and been denied any permit prior to filing a facial challenge”); MacDonald v. Safir, 206
F.3d 183, 189 (2d Cir. 2000) (“[T]here is no need for a party actually to apply or to request a
141
permit in order to bring a facial challenge to an ordinance (or parts of it) . . . .”). Indeed, as
Plaintiffs argue, it is not even clear what administrative review procedures Plaintiffs should have
sought before bringing their challenge, or what “adverse decision” there was to review at all.
(See Pls.’ Reply. at 30.) Accordingly, “because defendants have the burden of raising an
affirmative defense in their answer and establishing it . . . on a motion for summary judgment,”
Reach Music Pub. Inc. v. Warner/Chappell Music, Inc., No. 09-CV-5580, 2009 WL 3496115, at
*2 (S.D.N.Y. Oct. 23, 2009) (brackets and internal quotation marks omitted), and Defendants
have not met their burden here, summary judgment is granted to Plaintiffs as to this affirmative
defense.
Regarding unclean hands, Plaintiffs contend that the defense only applies “where the
misconduct alleged as the basis for the defense ‘has immediate and necessary relation to the
equity that [the plaintiff] seeks in respect of the matter in litigation.’” (Pls.’ Mem. 58–59
(quoting Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 245 (1933)). Plaintiffs also
argue that “[t]here is no evidence that Plaintiffs engaged in an unconscionable act” or that any
such act “had an immediate and necessary relation to the Plaintiffs’ sought relief.” (Pls.’ Mem.
59.) Defendants respond that the application of the doctrine is subject to the discretion of the
district court, and that there is evidence in the record supporting the claim that the rabbinical
college “is a deceptive front for a scheme to develop high density housing,” namely that there are
no definite construction plans and the curriculum for the school was developed only by one
putative student. (Defs.’ Opp’n 42 (citing Aris-Isotoner Gloves, Inc. v. Berkshire Fashions, Inc.,
792 F. Supp. 969, 970 (S.D.N.Y. 1992)). As noted above, there are certainly disputed facts as to
the degree to which the rabbinical college has been seriously planned. (See, e.g., Defs.’ 56.1 ¶¶
142
25–36; Pls.’ Counter 56.1 ¶¶ 25–36.) However, Defendants have offered no evidence to suggest
that Plaintiffs have no interest in building a rabbinical college. The central question in this case
is not Plaintiffs’ sincerity, but rather whether Plaintiffs’ right to build their rabbinical college has
been violated. Accordingly, the Court grants summary judgment to Plaintiffs on Defendants’
unclean hands affirmative defense.
Regarding immunity from damages, Plaintiffs contend that because they do not seek
monetary damages, Defendants’ affirmative defenses based on claims of immunity from
damages fail. (Pls.’ Mem. 60.) In response, Defendants argue that the defenses—absolute
immunity and qualified immunity—do not bar only damages claims. (Defs.’ Mem. 60.) This is
only half-correct. While absolute immunity bars claims for damages and injunctive relief, see
Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999) (“Absolute immunity bars not only [the
plaintiff’s] § 1983 claim for damages but also his claim for injunctive relief.”), but not
prospective declaratory relief, See B.d.S. v. Southold Union Free Sch. Distr., Nos. 08-CV-1319,
08-CV-1364, 2009 WL 1875942, at *20 (E.D.N.Y. June 24, 2009) (“[T]he doctrine of absolute
immunity does not extend to claims for declaratory relief based upon continuing violations of
federal law.”), qualified immunity only bars damages claims, see Sudler v. City of N.Y., 689 F.3d
159, 177 (2d Cir. 2012) (“[Q]ualified immunity does not bar actions for declaratory or injunctive
relief.” (alteration and internal quotation marks omitted)).
Keeping this framework in mind, Defendants’ immunity-based affirmative defenses fail
for two reasons. First, Plaintiffs are suing the individual Defendants in their official capacities,
and therefore they are not entitled to any immunity that the Village does not also possess,
meaning they cannot claim qualified or absolute immunity. See Shubert v. City of Rye, 775 F.
143
Supp. 2d 689, 699 (S.D.N.Y. 2011) (“[A] public official named as a defendant in his or her
official capacity in a § 1983 action is not entitled to personal immunity defenses, but only the
immunities available to the government entity, and it is well settled that a municipal entity has no
claim to such immunity from § 1983 liability.” (citation omitted)); see also Johnson ex rel.
Johnson v. Bd. of Educ. of Albion Centr. Sch. Dist., No. 02-CV-115, 2003 WL 23350123, at *2
(W.D.N.Y. Oct. 16, 2003) (“[The defendant] may not claim the defense of qualified immunity
because he was sued in his official capacity.”); cf. Ying Jing Gan v. City of N.Y., 996 F.2d 522,
529 (2d Cir. 1993) (“To the extent that a state official is sued for damages in his official capacity,
such a suit is deemed to be a suit against the state, and the official is entitled to invoke the
Eleventh Amendment immunity belonging to the state.”). Second, because, as explained above,
qualified immunity only apples to damages claims, that defense is inapplicable here.
Accordingly, the Court grants summary judgment to Plaintiffs on the immunity affirmative
defenses.59
III. Conclusion
The Court grants summary judgment to Defendants as to Plaintiffs’ Free Speech and
corresponding Article 1, § 8 New York Constitution claims, and the Court grants summary
judgment to Plaintiffs on Defendants’ affirmative defenses noted herein. The Court denies
summary judgment to all Parties as to all other claims, grants Plaintiffs’ Motion for Sanctions,
59
Defendants argue that, if the Court strikes any of the affirmative defenses, particularly
Defendants’ standing, lack of case or controversy, and failure to assert a facial challenge
defenses, “there is a body of case law holding that . . . [they] will be treated as waived.” (Defs.’
Mem. 44.) Because the Court does not strike any of Defendants’ affirmative defenses, but
instead grants summary judgment on them, there is no waiver concern here.
144
and grants Defendants' Motion to Strike in part. The Clerk of the Court is respectfully directed
to terminate the pending motions . (Dkt. Nos . 137, 140, 195 .)
SO ORDERED.
Dated:
September 29, 2015
White Plains, New York
/
145
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?