Congregation Rabbinical College of Tartikov, Inc. et al v. Village of Pomona et al

Filing 333

OPINION & ORDER: For the foregoing reasons, the Court holds that Plaintiffs have established violations of the First and Fourteenth Amendments of the United States Constitution, certain provisions of RLUIPA, the FHA, and §§ 3, 9, and 11 of the New York State Constitution. Plaintiffs are directed to submit a proposed judgment within 30 days of the date of this Opinion that is consistent with the Court's ruling. Defendants have 15 days to respond. SO ORDERED. (Signed by Judge Kenneth M. Karas on 12/7/2017) (mml)

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
MEILECH MENCZER, RABBI JACOB
HERSHKOWITZ, RABBI CHAIM ROSENBERG,
and RABBI DAVID A. MENCZER,
Plaintiffs,
-v-

OPINION & ORDER

VILLAGE OF POMONA, NY, BOARD OF
TRUSTEES OF THE VILLAGE OF POMONA, NY,
NICHOLAS SANDERSON, as Mayor, IAN BANKS,
ALMA SANDERS-ROMAN, RITA LOUIE, and
BRETT YAGEL, as Trustees and in their official
capacities,
Defendants.

Appearances:
Paul Savad, Esq.
Savad, Churgin, Attorneys at Law
Nanuet, New York
Counsel for Plaintiffs
Roman P. Storzer, Esq.
Storzer & Greene, P.L.L.C.
Washington, D.C.
Counsel for Plaintiffs
Donna C. Sobel, Esq.
Furgang & Adwar, L.L.P.
West Nyack, NY
Counsel for Plaintiffs

No. 07-CV-6304 (KMK)

Terry A. Rice, Esq.
Rice & Amon
Suffern, NY
Counsel for Plaintiffs
John G. Stepanovich, Esq.
Stepanovich Law P.L.C.
Virginia Beach, VA
Counsel for Plaintiffs
Andrea D. Napp, Esq.
John F. X. Peloso, Jr., Esq.
Karla Chaffee, Esq.
Thomas J. Donlon, Esq.
Robinson & Cole LLP
Hartford, CT
Stamford, CT
Boston, MA
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:
Plaintiff Rabbinical College of Tartikov, Inc. (“Tartikov”) is the owner of an
approximately 100-acre parcel of land (the “Subject Property”) located within the Village of
Pomona (the “Village”), upon which it seeks to build a rabbinical college that, in addition to
providing all of the facilities necessary to train rabbinical judges, will include housing for its
students and their families. Plaintiffs, which include Tartikov and its future students and faculty,
challenge certain zoning and environmental ordinances enacted by the Village, alleging that 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., §§ 3, 9, and 11 of the New York

2

State Constitution, and New York common law. Specifically, Plaintiffs seek to enjoin the
enforcement of portions of the Village of Pomona, New York Code (“Village Code”) §§ 130-4
(defining educational institutions and dormitories) (the “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) (the “Wetlands Law,” and
together, the “Challenged Laws”).1 Beginning in May and ending in June 2017, the Court
conducted a 10-day bench trial. On September 7, 2017, the Court heard closing statements. (See
Dkt. (entry for September 7, 2017).) What follows are the Court’s findings of fact and
conclusions of law.
I. Background
A. Factual Background
The facts leading up to the passage of the Challenged Laws are largely undisputed. The
dispute lies in whether the reasons given for their adoption are lawful.
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. Plaintiffs Rabbi Mordechai
Babad, Rabbi Wolf Brief, Rabbi Hermen Kahana, Rabbi Meir Margulis, Rabbi Meilech
Menczer, Rabbi Jacob Hershkowitz, Rabbi Chaim Rosenberg, and Rabbi David A. Menczer

1

Full versions of the Challenged Laws can be found online. See Village of Pomona, NY,
Chapter 126: Wetlands Protection, http://www.ecode360.com/12718511 (last visited Nov. 20,
2017) (Wetlands Law); Village of Pomona, NY, Chapter 130: Zoning,
http://www.ecode360.com/12718574 (last visited Nov. 20, 2017) (Accreditation Law and
Dormitory Law).
3

(with Chaim Rosenberg, Jacob Hershkowitz, and Meilech Menczer defined as the “Students”)
are rabbis who seek to live, teach, and/or study at Tartikov’s proposed rabbinical college.2
Tartikov was formed in 2004. (See Pl.’s Ex. 1, at RC_00002809.) At the time of
incorporation, Tartikov’s trustees included Chaim Babad, who indirectly financed Tartikov,
Michael Tauber (“Tauber”), and four other individuals. (See id. at RC_00002810.) The
corporation was formed, among other reasons, “[t]o promote the religious, intellectual, moral,
and social welfare among its members and their families,” “[t]o establish, maintain and conduct a
school for the [study] of the holy Torah and to maintain classes for the teachings of the customs,
traditions and mode of worship of the Jewish Orthodox faith,” and “[t]o aid and assist worthy
indigent members of the corporation with loans and housing.” (Id. at RC_00002807–08.)
Tauber explained that Tartikov was formed to “establish[] a rabbinical college in Rockland
County, New York in order to provide a religious learning and living community to train [a] new
generation of students to become full-time rabbinical judges.” (Pl.’s Ex. 1500 (“Tauber Decl.”)
¶ 11; see also Pl.’s Ex. 1506 ¶ 10).) In August 2004, Tartikov purchased the Subject Property
for approximately $13 million dollars. (See Trial Tr. 364, 896.) The Subject Property is the only
parcel of land owned by Tartikov, (see Tauber Decl. ¶ 40), but a related entity owns an additional
30 acres of property within the Village, all of which abut the Subject Property, (see Trial Tr.
128.)
Defendants consist of the Village, its Board of Trustees (or “Board”), its current Mayor
Brett Yagel (“Yagel”), (see Trial Tr. 707), its former mayor and Trustee Nicholas Sanderson
(“Sanderson”), and other current and former members of its Board of Trustees—Ian Banks

2

Rabbi Gergely Neuman, Rabbi Aryeh Royde, and Kolel Belz of Monsey are no longer
parties to this Action.
4

(“Banks”), Alma Sanders Roman (“Roman”), and Rita Louie (“Louie”)—each sued in his or her
official capacity.3 Each of the individual Defendants voted to amend or adopt one or more of the
Challenged Laws.
2. Individual Plaintiffs’ Religious Beliefs & Tartikov’s Proposed College
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 (bais din) before rabbinical judges (dayanim or dayan) applying Jewish law. (See Pls.’
Post-Trial Proposed Findings of Fact (“Pls.’ FOF”) ¶¶ 31, 33, 34 (Dkt. No. 326).) Presently,
however, Plaintiffs have observed that the rabbinical courts in the United States are
overburdened because there are not enough qualified rabbinical judges, forcing
Orthodox/Hasidic Jews to go to secular courts to resolve their disputes. (See id. ¶¶ 38, 40.) To
help alleviate this backlog, the Students are seeking to become full-time rabbinical judges trained
in all four books of the Shulchan Aruch, a compilation of Jewish laws of the Orthodox Hasidic
tradition, also known as the Code of Jewish Law. (See id. ¶¶ 20, 42.) They currently are
enrolled at Kollel Belz in Monsey, New York, (see id. ¶¶ 21–23), but Kollel Belz does not offer
a “complete” program on the Shulchan Aruch, (Pl.’s Ex. 1503 (“Jacob Hershkowitz Decl.”)
¶ 38), leading to their desire to enroll at Tartikov’s rabbinical college.
Tartikov’s rabbinical program will focus specifically on all four books of the Shulchan
Aruch, (see Pls.’ FOF ¶ 41), which means that Tartikov will be considered a “specialized kollel,”
(id. ¶ 44 (internal quotation marks omitted)). Compared to a regular kollel, where students spend

3

Sanderson served as a member of the Board of Trustees from 1998-2007, and was
mayor from 2007-2011. (See Trial Tr. 460.) Banks has served on the Board since 1997 and
remains a member to this day. (See id. at 562.) Roman served on the Board for approximately
16 years, some period of which is relevant to this Action. (See id. at 569.) Louie served on the
Board from approximately 2007-2012. (See id. at 676–77.)
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their time studying anything related to Jewish law, students at Tartikov will specialize in a
“directed and intense study” of the Shulchan Aruch. (Pls.’ Ex. 1502 (“Mordechai Babad Decl.”)
¶ 49.) Tartikov estimates that its proposed program will take approximately 13 to 15 years to
complete because its students must master thousands of religious texts and commentaries, and
certain aspects of secular law. (See Pls.’ FOF ¶¶ 48, 53, 57.) During this period of study, the
students will be required to “spend their days from about 6 a.m. until about 10 p.m. . . . in study,
in observation of judges, [and] in collegial examination of the issues that are presented by their
studies.” (Tauber Decl. ¶ 69.) Students will break from their studies only “as is required to
fulfill the other religious obligations in daily life for an Orthodox Jew.” (See id.) No other
rabbinical college in the United States offers this type of program, (see Pls.’ FOF ¶ 51), but one
institution in Israel offers one similar to it, (see id. ¶ 52).
Admission to the program will be based on interviews conducted by Tartikov’s future
dean, Mordechai Babad, who will review the applicants’ backgrounds and assess their
knowledge of Jewish law. (See id. ¶ 94; Tauber Decl. ¶ 60.) Admission will also be conditioned
on completing a high school level program in the Talmud. (See Tauber Decl. ¶ 60.) The
Students and David Menczer have satisfied these conditions and will be admitted into the college
when it opens. (See Mordechai Babad Decl. ¶ 50.)
Student progress will be measured by regular testing. (See Tauber Decl. ¶ 51.) Some
students also may undergo an oral examination to determine whether they are qualified to serve
as rabbinical judges. (See id.) If a student passed that examination, the rabbi conducting it will
give the student a smicha, which signifies that the student has accomplished proficiency in an
area of Jewish law. (See Pls.’ FOF ¶¶ 88, 91.) The smicha is not a degree recognized by the

6

New York State Board of Regents (the “Board of Regents”), (see id. ¶ 90), and Tartikov does not
plan on offering any degree recognized by that body, (see Pls.’ Ex. 1507 (“Kinser Decl.”) ¶ 29).
As part of the program, Tartikov plans to construct and foster the development of a Torah
community, i.e., on-campus housing where its students and their families can live, so that the
students can study from 6 a.m. until 10 p.m., (see Tauber Decl. ¶ 69), and also meet their
religious obligations to their families. (See id. ¶ 19; Pls.’ Ex. 1501 (“Chaim Rosenberg Decl.”)
¶ 52; Pls.’ FOF ¶ 62.) Jewish law requires that Tartikov’s students live with their families, (see
Chaim Rosenberg Decl. ¶ 55; Jacob Hershkowitz Decl. ¶ 86(n); Pls.’ Ex. 1504 (“Meilech
Menczer Decl.”) ¶ 38(n)), and teach their children the Torah, (see Trial Tr. 197). Jewish law also
requires men to marry at a young age and have large families, and imposes conjugal duties upon
a husband and wife while forbidding them from engaging in any family planning or using birth
control. (See Pls.’ FOF ¶¶ 24, 25.)
The purpose of a Torah community is to isolate the students from the distractions of the
outside world, permitting them to devote themselves to the study of Jewish law. (See Pls.’ FOF
¶ 69.) The Students have professed that they are motivated by their religious beliefs to live in
such a community. (See Chaim Rosenberg Decl. ¶ 54 (“My religious beliefs motivate me to be
part of such a Torah community.”); Jacob Hershkowitz Decl. ¶ 49 (“To become a rabbinical
judge, I must participate in a program that teaches Shulchan Aruch, and do so in a community of
like-minded students and teachers, what we refer to as a Torah community.”); Meilech Menczer
Decl. ¶ 46 (“My religious beliefs motivate me to become part of this Torah Community’s living,
learning, and worshipping environment as proposed by the Congregation Rabbinical College of
Tartikov.”).) Their belief is grounded in religious texts that, for example, direct Jews to “[e]xile
yourself to a place of Torah.” (Pls.’ Ex. 1508 (“Resnicoff Decl.”) ¶ 70 (internal quotation marks

7

omitted).) Without on-campus housing, Tartikov believes that its program will fail, (see Pls.’
FOF ¶ 66), in part because two other kollels in the area that do not have on-campus housing or a
Torah community—Kollel Belz and Mechon L’Hoyora—have been unsuccessful in producing
rabbinical judges trained in all four books of the Shulchan Aruch, (see id. ¶ 70).
In addition to housing, Tartikov’s facilities will include classrooms, study halls,
courtrooms, a library, one or more shuls, and a facility to house a mikvah. (See Tauber Decl.
¶ 61.) The library will hold the “[t]housands of studies and commentaries” that discuss and
explain the Shulchan Aruch. (Id. ¶ 65.) The mikvahs, or ritual baths, will be provided out of
religious necessity. (See Pls.’ FOF ¶ 85.) One or more shuls will be constructed so that
everyone on campus can pray together. (See Tauber Decl. ¶ 22.)
As proposed, Tartikov’s rabbinical college cannot be accredited by the Board of Regents
or any other accrediting body. It cannot be accredited by the Board of Regents because it will
not offer a degree recognized by that body and educational institutions cannot be accredited by
the Board of Regents until they are fully operational. (See Kinser Decl. ¶¶ 29, 41; Trial Tr. 446.)
The college cannot be accredited by the Association of Advanced Rabbinical and Talmudic
Schools, the accrediting agency for Jewish educational institutions, because it plans to admit
students without an admissions test, will not offer a broad enough curriculum, and must be in
existence for at least two years before it can be accredited. (See Pls.’ Ex. 2; Trial Tr. 447–49.)
Little else is known about the structures, curriculum, or features of Tartikov’s rabbinical
college because it has not provided a formal plan for, or submitted an application to the Village
seeking to construct, their proposed rabbinical college.

8

3. Chronology of the Challenged Laws
The Village, incorporated in 1967, adopted a Master Plan in 1974 which it updated in
1997. (See Joint Pretrial Order Stipulations of Fact ¶ 8 (Dkt. No. 257).) It first adopted zoning
laws in 1968, (see Defs.’ Ex. 2000 (“Ulman Aff.”) ¶ 6), which were designed to preserve and
enhance the rural residential character of the Village, (see id.). Since its inception, the Village
has been designated as an R-40 residential zoning district. (See id. ¶ 5; Defs.’ Proposed PostTrial Findings of Fact (“Defs.’ FOF”) ¶ 1 (Dkt. No. 324).) The R-40 designation requires that
there be a minimum of 40,000 square feet per lot. (See Ulman Aff. ¶ 5.) One-family residences,
public utilities rights-of-way, libraries and museums, public parks and playground, and
agricultural pursuits are permitted land uses as of right. (See Joint Pretrial Order Stipulations of
Fact ¶ 6.)4
On December 15, 1999, Yeshiva Spring Valley (“YSV”) made an informal appearance
before the Village’s Planning Board regarding its desire to build a yeshiva on the Subject
Property. (See Pls.’ FOF ¶ 127.) During the meeting, a representative from Frederick P. Clark
Associates Inc. (“FPC”), the Village’s planner, noted that the Village’s zoning laws for schools
“really stink” and recommended that the laws be updated. (See id. ¶ 128; Trial Tr. 799.) One
month later, FPC circulated memoranda entitled “YSV-Pomona (Primary School and PreSchool),” and “Proposed Primary School and Pre-School (YSV Pomona) and the Village’s
Zoning Regulations regarding schools,” both of which noted the existence of only “scant”
regulations for schools and recommended that the Village amend the pertinent laws. (Pls.’ Exs.

The Parties originally stipulated that “houses of worship” are also permitted as of right
within the Village, (see Joint Pretrial Order Stipulations of Fact ¶ 6), but agreed at oral argument
that this stipulation was incorrect. House of worship are special permit uses. See Village Code
§ 130-10(G).
4

9

111, 130; see also Pls.’ FOF ¶ 129.)5 These recommendations spurred the creation of Local Law
No. 1 of 2001, a law designed to regulate educational institutions. While discussing a rough
draft of the law, the Mayor of the Village at the time, Herbert Marshall (“Marshall”), stated:
“This thing’s going to come in. They’re going to come in and we’re going to be caught with our
pants down if we don’t move. That’s why I want to make sure that we’re moving ahead.” (Pls.’
Ex. 114, at 69.)6
On January 22, 2001, following a public hearing, the Board of Trustees adopted Local
Law No. 1 of 2001. (See Pls.’ FOF ¶ 130; Defs.’ FOF ¶ 114.) As relevant here, the law 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 secondary 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. (See Defs.’ Ex. 1010 (“Local Law No. 1 of
2001”), as codified at Village Code §§ 130-4, 130-10.) For example, the law imposed a
minimum net lot area of 10 acres, “plus an additional 0.05 acres for each pupil enrolled.” (Id.
§ 4(F)(1)(a).) The Board of Trustees passed the law because it sought to have educational
institutions as special permit uses rather than uses as of right and to set standards by which such
uses would be regulated. (See Ulman Aff. ¶ 25.) Following the passage of Local Law No. 1 of

5

There were no schools in the Village in 2001. (See Joint Pretrial Order Stipulations of
Fact ¶ 11.)
6

Marshall served as mayor from 1998 until 2007. (See Trial Tr. 586.)
10

2001, YSV determined that it was impossible for it to build the yeshiva it wanted on the Subject
Property, (see Nathan Fromowitz Dep. 60), and eventually built the yeshiva outside of the
Village, (see id. at 14–15).
In December 2002, Marshall spoke on behalf of the Village at a community meeting to
support the formation of the Village of Ladentown. (See generally Pls.’ Ex. 94.) The Village of
Ladentown was proposed in opposition to the Town of Ramapo’s (“Ramapo”) September 2002
Draft Comprehensive Plan, which sought to re-zone a 200-acre parcel of land known as the
Patrick Farm Property. (See id. at 1.) The plan specifically contemplated the development of
multi-family housing for adult students on the property. (See id.; Trial Tr. 729.) Marshall stated
that Ramapo’s plan reflected its decision to “support the special agenda of a small but vocal
group of citizens who would prefer replacing our trees with apartment buildings, our wetlands
with asphalt, and our wildlife with traffic.” (Pls.’ Ex. 94, at 1.)
In May 2004, the Village filed a lawsuit against Ramapo seeking to set aside Ramapo’s
Comprehensive Plan for failing to comply with the New York State Environmental Quality
Review Act (“SEQRA”). (See generally Pls.’ Ex. 155.) The petition noted that Ramapo
“attracted a burgeoning Hassidic community,” which “caused development and political
pressures in the Town to increase its housing stock and infrastructure.” (Id. ¶¶ 31–32.)
On June 15, 2004, Ramapo adopted the Adult Student Housing Law (“ASHL”) which
permitted married adult student multi-family housing for Orthodox/Hasidic Jews in residential
zones throughout the unincorporated portion of Ramapo. (See Pls.’ Ex. 156 ¶¶ 7, 133.)7 On

The ASHL “permits married, adult, student, multi-family, high-density housing in
single-family residential zones . . . in the unincorporated portion of Ramapo.” Village of
Chestnut Ridge v. Town of Ramapo, No. 07-CV-9278, 2008 WL 4525753, at *1 (S.D.N.Y. Sept.
30, 2008).
7

11

June 28, 2004, the Board of Trustees voted to challenge the ASHL. (See id. ¶ 27.) The petition,
which was filed in October 2004, noted that the law was passed “to secure for one religious
community a unique and significant zoning benefit.” (Id. ¶ 215.) Marshall strongly opposed the
ASHL, stating that Ramapo officials “were pandering to the special interest groups able to
deliver the critically important block vote.” (Pls.’ Ex. 109, at POM0013281.) The “block vote”
Marshall was referring to was the Orthodox Jewish vote out of New Square, New York. (See
Trial Tr. 619.)
During the summer of 2004, the Board of Trustees discussed amending the laws relating
to educational institutions. (See Ulman Aff. ¶ 42.)8 On September 7, 2004, Village Attorney
Doris Ulman (“Ulman”) provided formal recommendations to the Board regarding which
provisions should be amended. (See id.; Defs.’ Ex. 1016.) Ulman recommended removing the
.05 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. (See Defs.’ Ex. 1016.) These recommendations served as the bases
for Local Law No. 5 of 2004. As relevant here, Local Law No. 5 of 2004 re-defined
“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.
(Defs.’ Ex. 1011 (“Local Law No. 5 of 2004”) §§ 1, 4–5, as codified at Village Code §§ 130-4,
130-10 (emphasis added).) The minimum lot area was changed to 10 acres—omitting the “net

8

There were no schools or institutions of higher education located in the Village in 2004.
(See Joint Pretrial Order Stipulations of Fact ¶ 14.)
12

lot” requirement—and the .05 acre-per-student requirement was eliminated. (See id. § 4.) The
law also included a provision permitting the development of dormitories:
A building that is operated by a school located on the same lot and which contains
private or semi-private rooms which open to a common hallway, which rooms are
sleeping quarters for administrative staff, faculty or students. Communal dining,
cooking, laundry, lounge and recreation facilities may be provided. Dormitory
rooms shall not contain separate cooking, dining or housekeeping facilities except
that one dwelling unit with complete housekeeping facilities may be provided for
use of a Superintendent or supervisory staff for every fifty dormitory rooms. Not
more than one communal dining room shall be provided in any building used for
dormitory purposes. Single 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.
(Id. § 2.) Ulman based this definition on the laws in Chestnut Ridge and Ramapo, (see Ulman
Aff. ¶ 46), both of which provide that dormitories “shall not contain separate cooking” facilities,
(Defs.’ Ex. 1017, at 2; Defs.’ Ex. 1018, at XVIII-12.)9 The Board of Trustees adopted Local
Law No. 5 of 2004 on September 27, 2004. (See Joint Pretrial Order Stipulations of Fact ¶ 24.)
Prior to the adoption of Local Law No. 5 of 2004, dormitories were not permitted in the
Village. (See Ulman Aff. ¶ 38.)10 Ulman said she drafted the law to authorize schools to build
dormitories to house their students on campus, (see id. ¶ 39), to comply with “recent case law
developments in New York State,” (id. ¶ 48), and to fix “inconsistencies and vagueness” in the
existing laws, (see id. ¶ 52). For example, the code provided different accreditation requirements
for “schools” and “educational institutions.” (See id.) Schools had to be approved by the Board

There also is some confusion as to who drafted Chestnut Ridge’s definition for
“dormitory.” The definition dates back to 1987, (see Ulman Aff. ¶ 47), but Ulman testified at
trial that that she “probably” wrote “Local Law 6 of 2001 in Chestnut Ridge limiting student
housing to define dormitories,” (Trial Tr. 871). It is unclear what this means. In any event, even
if Chestnut Ridge’s “dormitory” definition dates back to 1987, Ulman served as a consultant to
Chestnut Ridge when it was drafted. (See Trial Tr. 827.)
9

10

However, Ulman admitted that it is unconstitutional to prohibit educational institutions
from building dormitories. (See Trial Tr. 836.)
13

of Regents or the New York State Department of Education. (See id.) Educational institutions
were required to be licensed by the State of New York. (See id.) The Village Code was
amended to remove the definition for “school” and clarify that educational institutions could be
approved by the New York State Education Department or similar accrediting body. (See id.)
The accreditation requirement was not completely eliminated from the Village Code because
Ulman wanted to prevent certain institutions that might call themselves schools from building in
the Village. (See id. ¶ 51.) Ulman believed that these changes would make it easier for
applicants and Village officials to understand the laws applicable to educational institutions.
(See id. ¶ 52.)
The Village learned that Tartikov had purchased the Subject Property at least as early as
November 2004. (See Joint Pretrial Order Stipulations of Fact ¶ 15.) In 2005 and 2006, the
Village approved Tartikov’s tax exemption applications. (See id. ¶ 16.) Ten board meeting
agendas from July 2006 through December 2006 reflect that the Board planned to discuss
Tartikov in executive session. (See Pls.’ Exs. 80, 83, 85, 87, 89–92, 119–20.)11 The agendas do
not provide the basis upon which the Board determined that executive session was necessary, but
minutes from the September 25 and December 18, 2016 Board meetings reveal that the Board
closed the meeting to the public to discuss “matters of litigation.” (See Pls.’ Ex. 105, at 12; see
also Pls.’ Ex. 121, at 6.) During some of these same Board meetings, certain of the Challenged
Laws were discussed. (See Pls.’ Ex. 115, at 5 (Board of Trustees minutes from November 27,
2006, noting that Ulman distributed proposed laws relating to dormitory buildings and houses of

The meeting agendas reflect that “Camp Dora” was to be discussed in executive
session. Camp Dora was the owner of the Subject Property prior to YSV. (See Joint Pretrial
Order Stipulations of Fact ¶ 17.)
11

14

worship); Pls.’ Ex. 121, at 5 (Board of Trustees minutes from September 25, 2006, noting that
Ulman was working on a “local law revision for wetlands”).)
As Village Counsel, Ulman regularly reviewed the Village Code and made
recommendations to the Board of Trustees regarding additions and amendments. (See Defs.’
FOF ¶¶ 132, 134.) In 2006, Ulman determined that the code provisions relating to dormitories
needed to be amended, so she drafted Local Law No. 1 of 2007. (Id.) As relevant here, the law:
(1) requires an educational institution to have a net lot area of 10 acres; (2) removes certain
slopes from net lot area calculations; (3) provides that “[a] dormitory building shall not occupy
more than twenty (20) percent of the total square footage of all buildings on the lot”; and (4)
provides that the maximum height for a dormitory building is 25 feet. (Defs.’ Ex. 1012 (“Local
Law No. 1 of 2007”), as codified at Village Code § 130-10(F).) Ulman testified that the law was
designed to make clear that a dormitory use is an accessory use to a principal educational use, to
clarify that Local Law No. 5 of 2004 imposed “net” lot area requirements rather than “lot area”
requirements, and to remove references to “school” that had inadvertently been left in the code
after the definition for school was deleted in 2004. (See Ulman Aff. ¶ 54; Local Law No. 5 of
2004.)
On December 18, 2006, the Board of Trustees held a public hearing on Local Law No. 1
of 2007. (See Ulman Aff. ¶ 55; Defs.’ Ex. 1041, at 4.)12 During the hearing, an attorney for
Tartikov, Paul Savad (“Savad”), asked the Board of Trustees to delay voting on the law until the
next Board meeting. (See Defs.’ FOF ¶ 135.) The Board agreed to continue discussing the law
at the Board meeting scheduled for January 22, 2007. (See id.)

12

There were no educational institutions in the Village at this time. (See Joint Pretrial
Order Stipulations of Fact ¶ 20.) Additionally, the Village denied Tartikov’s tax exemption
application for 2007. (See Pls.’ Ex. 146 ¶ 91.)
15

Before the Board held its next meeting, on January 9, 2007, Preserve Ramapo, a political
action group in the region, leaked tentative plans for Tartikov’s proposed rabbinical college to
the public. (See Pls.’ Ex. 65.) The leaked information stated that Tartikov was planning to build
“1,800 square feet” residences that would house 4,500 people. (Id. at POM0013256.) Shortly
thereafter, The Journal News published an article referencing Preserve Ramapo’s disclosure and
adding additional information. (See Pls.’ Ex. 157.) Savad is quoted in the article as stating that
the rabbinical college would house 1,000 rabbis and their families. (See id. at RC_1634.) Ulman
learned about Tartikov’s plan for the Subject Property from reading the article in The Journal
News. (See Ulman Aff. ¶ 57.)
On January 22, 2007, the Board of Trustees held a public hearing on Local Law No. 1 of
2007, during which it passed the law. (See Pls.’ FOF ¶¶ 148–49; Defs.’ FOF ¶¶ 138, 148.) The
turnout was overwhelming, (see Pls.’ FOF ¶ 235), likely because of the information that was
leaked by Preserve Ramapo and contained in The Journal News article. During the hearing, the
Board considered changing the height limitation for dormitories from 25 feet to 35 feet. Ulman
stated that the proposed change would make dormitories consistent with all other uses in the
Village Code. (See Joint Pretrial Order Stipulations of Fact ¶ 18.) The Board also considered
increasing the number of permitted dining halls from one to two. (See Pls.’ Ex. 137, at 45.)
After receiving input from the largely hostile audience, the Board decided to keep the height
limitation at 25 feet and declined to increase the number of dining halls. (See Joint Pretrial Order
Stipulations of Fact ¶ 19; Pls.’ Ex. 137, at 77 (Sanderson stating that “based on the input from
the public this evening, I think . . . [w]e should cut out the two dining rooms and go back to
one”); Trial Tr. 633 (Marshall testifying that increasing the height limit “was rejected based on
the comments from the—from the citizenry who attended”); Local Law No. 1 of 2007 § 3.)

16

Many of the people who spoke during the hearing expressed opposition to Tartikov’s
proposal, as they understood it based on the rumors that were circulating. Many of the
comments focused on the size of the project and its effect on the Village, rather than the fact that
it was being proposed by Orthodox/Hasidic Jews. (See, e.g., Pls.’ Ex. 137, at 10–11 (“I urge you
not to allow that type of housing that’s being discussed in that law. I don’t think the area calls
for it. The village is too small, and I don’t think that we should have that kind of housing
anywhere in the village.”).) However, comments related to the religious nature of Tartikov’s
proposal and its proposed student body. (See, e.g., id. at 47 (“You know, let me ask you one
thing, it’s really funny how we’re talking about law, when you have a group that breaks every
law there is, and we are talking about law.”); id. at 56 (“You know in America, we have the
sense of community. That’s our face. We’re going to be another Kiryas Joel [a Hasidic
community]. That’s why we are emotional. You can get into the environmental impact and all
that. That’s all I have to say.”).) Approximately half-way through the meeting, in an attempt to
calm the audience, Marshall stated:
Ladies and gentlemen, 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 say. I can’t say
what I feel—I can’t—if I agree with you, I don’t agree with you, I don’t have that
luxury of being able to say that here. All that I can say is that every member of this
board works very, very hard to do what is best for this community. You you’re
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 that we don’t agree.
We may or we may not, but please give us the benefit of the doubt. We have all
been doing this—we work very hard at what we do. We try and do what is best for
the community, but it’s our home.
(Id. at 58–59.)
Around this same time, the Board of Trustees was considering whether to adopt a
wetlands protection law. The Village had considered adopting a similar law in 1998, but

17

ultimately decided against it. (See Ulman Aff. ¶ 92.) In December 2006, Ulman created a first
draft and circulated it to the Board. (See Pls.’ Ex. 123.) As originally proposed, the law
prohibited certain development activities from occurring on all properties in the Village within
100 feet of the boundary of any wetland, water body, or watercourse, unless a permit was issued
by the Board of Trustees. (See id. §§ 126-3, 126-5.) Ulman claims that the law was drafted
because the Board was concerned about wetlands in the Village that were not regulated by the
state or federal governments. (See Ulman Aff. ¶ 68.) Ulman drafted the law after reviewing
wetlands laws from other villages and a wetlands study prepared for Westchester County, New
York. (See id. ¶ 71.) The idea for the 100-foot buffer zone was taken directly from the New
York State Environmental Conservation Law, which requires a permit from the New York State
Department of Environmental Conservation for any proposed disturbance within 100 feet of
regulated wetlands. (See id. ¶ 68.) Ulman believed that the law would protect the health, safety,
and welfare of Village residents. (See id. ¶ 69.)
Before the Board voted on the proposed wetlands law, Village residents began
campaigning to become or remain members of the Board. Sanderson, Yagel, and Louie ran
together on a slate in the March 2007 Village election. (See Pls.’ FOF ¶ 275.) A major piece of
their platform was opposition to Tartikov’s development of the Subject Property. (Id. ¶ 276.)
One campaign flier stated:
This year it is imperative that all village residents vote for leadership that have an
unwavering long-term commitment to the Village.
We are, according to the lawyers for the Rabbinical College of Tartikoff who have
purchased land on Route 306 in the village, going to be faced with a proposal for a
huge development that will include housing for thousands of adult students and
their families. Their lawyers have not been shy to point out that they will use every
legal avenue to pursue their plans, including the federal statute RLUIPA.

18

From what we know of the plan as it has been leaked to the public, it will have real
environmental and safety problems; compelling interests that will allow the village
to fight this plan, if and when presented to the Village Board.
You 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. A team that
is in it for the long term, and one that has already prepared themselves with a
strategy to fight for Pomona.
(Pls.’ Ex. 41.) This same flier states that “[t]he single most important issue facing the Village is
clearly the Tartikoff development.” (Id.) Sanderson, Yagel, and Louie vowed to “vigorously
defend [the Village’s] land use codes and regulations.” (Id.) A second flier reiterated these same
concerns and made the same promises. (See Pls.’ Ex. 42, at 2.) In a campaign video, Sanderson
stated that Tartikov “could completely change the village and the make-up of the village.” (Pls.’
Ex. 47, at 1.) Shortly before the election, Yagel and Louie drafted a submission for The Journal
News editorial page, (see Pls.’ FOF ¶ 286), stating their opposition to Tartikov’s proposal and
noting that “a virtual mini-city within the village[] that will house thousands of homogenous
individuals” was not a “‘natural’ progression” for the Village. (Pls.’ Ex. 17.) Yagel was also
quoted in the New York Times describing Plaintiff’s plans for the Subject Property as
“disgusting.” (Pls.’ Ex. 169, at 1 (internal quotation marks omitted).)13 Sanderson, Yagel, and
Louie won the March 2007 election. (Joint Pretrial Order Stipulations of Fact ¶ 22.)
The wetlands protection law that ultimately was adopted by the Board on April 23,
2007—Local Law No. 5 of 2007—includes an exemption for lots improved with single family
homes. (See Defs.’ Ex. 1013 (“Local Law No. 5 of 2007”), as codified at Village Code § 126-

The full quote from the New York Times is as follows: “‘The attorney who represents
the developer and owner of the property appears ready to file a lawsuit without knowing what the
codes for the village are,’ said one resident, Brett Yagel. ‘It’s pretty disgusting. They’re trying to
create this minicity in our village, and push out people who’ve put their heart and soul into the
community for years.’” (Pls.’ Ex. 169, at 1.)
13

19

3(D) (“The aforesaid 100 foot buffer in which regulated activities are not permitted to take place
shall not apply to lots that are improved with single family residences.”).) As relevant here, the
law prohibits certain activities within “100 feet of the boundary of any wetland, water body or
watercourse unless a permit is issued therefor by the Board of Trustees or the Planning Board.”
(Village Code § 126-3.) To obtain a permit, the landowner must show that the law “results in a
deprivation of the reasonable use of a property so as to constitute a de facto taking of such
property.” (Id. § 126-5.) Prior to its passage, the Village and members of the Board of Trustees
knew that there were wetlands located on the Subject Property. (See Trial Tr. 670 (Marshall
stating that he knew there were wetlands on the Subject Property prior to 2007); Pls.’ Ex. 69, at 1
(email from Yagel discussing the presence of wetlands on the Subject Property); Pls.’ Ex. 104, at
1 (Marshall noting, in January 2002, that there are wetlands on the Subject Property); Pls.’ Ex.
107, at 2 (October 22, 2001 Board meeting minutes noting that Marshall “stressed” that YSV
needed to protect the wetlands located on the Subject Property); Pls.’ Ex. 141, at 20 (1997
Update to the Village’s Master Plan noting that the Subject Property contains “part of a large
State-regulated wetland”).
4. The Impact of the Challenged Laws
Collectively, the Challenged Laws prevent the construction of Tartikov’s rabbinical
college in the Village. Because the entire Village 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). The Accreditation Law bars the construction of the
rabbinical college because Tartikov, as proposed, cannot be accredited by any accrediting body.

20

(See Kinser Decl. ¶ 29; Trial Tr. 446–51.) The Dormitory Law also presents several challenges
for Tartikov’s proposed development. The prohibitions on student family housing and separate
cooking, housekeeping, and dining facilities preclude the rabbinical college from being built in
the Village. Limiting housing to 20% of the total square footage of other buildings on the
Subject Property is also problematic because Tartikov seeks to provide housing in excess of this
limitation. The Wetlands Law restricts Tartikov’s use of the Subject Property because the
location of the driveway onto the property falls within the 100-foot buffer mandated by that law.
(See Trial Tr. 1018.) An access road cannot be built in any other location because of the
presence of wetlands and steep slopes, which would require significant regrading. (See id. at
781, 1017–18; Pls.’ Ex. 1510 (“Beall Decl.”) ¶¶ 264–65.)
Moreover, Tartikov cannot obtain a variance to develop its rabbinical college because
“State law requires an applicant who applies for a use variance to prove that there is no other
economic use for the property” and this would be “impossible” for Tartikov to prove. (Ulman
Aff. ¶ 80.) Another possible way for Tartikov to build its rabbinical college would be for it to
apply for an amendment to the zoning laws. (See id. ¶ 87.)14 However, the Board of Trustees is
not required to consider a petition for a text amendment, (see Trial Tr. 783), and any such
amendment would be subject to the full SEQRA review process, (see Trial Tr. 877).
B. Procedural Background
Plaintiffs filed their first Complaint on July 10, 2007, (see Dkt. No. 1), and then filed an
Amended Complaint on July 30, 2007, (see Dkt. No. 12). Plaintiffs filed a Second Amended

Ulman has suggested that Tartikov can apply for a “zone change,” (Ulman Aff. ¶ 87),
but a zone change would require an amendment to the zoning law, (see Trial Tr. 786).
14

21

Complaint on November 19, 2007. (See 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 4, 2013.
See Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, 915 F. Supp. 2d
574 (S.D.N.Y. 2013) (“Tartikov I”).
Following the close of discovery, Plaintiffs filed a Motion for Partial Summary
Judgment, (see Dkt. No. 137), and Defendants filed a Motion for Summary Judgment, (see Dkt.
No. 140), on January 22, 2015. The Court granted in part and denied in part both motions. See
Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, 138 F. Supp. 3d 352
(S.D.N.Y. 2015) (“Tartikov II”).
On May 15, 2017, the Court held the final pretrial conference and the bench trial
commenced. The trial lasted 10 days and the Court heard testimony from 23 witnesses.16
Pursuant to the Court’s direction at the conclusion of the trial, the Parties submitted their posttrial memoranda and accompanying papers on August 7, 2017. (See Dkt. Nos. 323–29.) The
Court heard closing statements on September 7, 2017.
II. Discussion
The issue before the Court is whether Tartikov’s permit application to build its rabbinical
college should be governed by the standards set forth in the Challenged Laws. Plaintiffs argue
that the Court should enjoin Defendants from enforcing the Challenged Laws because they are
discriminatory and substantially burden their religious exercise. Defendants assert that the laws
were passed for legitimate reasons and do not burden the creation of a run-of-the-mill rabbinical

15

Plaintiffs appear to have filed an identical version of their Second Amendment
Complaint on two occasions. (See Dkt. Nos. 27, 28.)
At the Court’s direction, the direct testimony of each party’s witnesses was done by
way of affidavit.
16

22

college. Any burden, Defendants claim, results from the fact that Tartikov seeks to build a
“rabbinical college extraordinaire.” The primary source of Defendants’ opposition to Tartikov’s
proposed use is that it will include housing for its students and their families. Indeed, it appears
that they challenge little else about Tartikov’s proposal. Defendants are particularly concerned
that providing housing for students and their families will overburden the Village’s infrastructure
and detract from its rural character. A secondary source of Defendants’ opposition rests in their
severe distrust of Plaintiffs’ motives. Defendants are adamant that Plaintiffs’ primary wish is not
to build a rabbinical college, but rather a housing complex for Orthodox/Hasidic Jews and their
families dressed as a college. Although the Court finds no support for Defendants’ mistrust of
Plaintiffs’ motives, the Court is sympathetic to Defendants’ concerns about the size and scope of
Tartikov’s proposed development. Ultimately, however, the Court concludes that Defendants
enacted the Challenged Laws to prevent the spread of the Orthodox/Hasidic community into the
Village, and in certain respects, to specifically target the Subject Property and Tartikov. This
holding is based on the context in which the laws were adopted and the unsatisfactory and
incredible reasons presented for their adoption. The Court takes no position on what Plaintiffs
may build upon the Subject Property. The Court’s ruling is limited only to the fact that
Tartikov’s putative permit application need not comport with the requirements imposed by the
Challenged Laws.
A. The Standard Applicable to Facial Challenges
Because Tartikov has not applied for a permit to build a rabbinical college on the Subject
Property, Plaintiffs are limited to challenging only the facial validity of the Challenged Laws.
See Tartikov I, 915 F. Supp. 2d at 596–607 (dismissing the plaintiffs’ as applied challenge
because they failed to submit a single proposal). “Facial invalidation is, manifestly, strong

23

medicine that has been employed by [courts] sparingly and only as a last resort,” wherein a
plaintiff has a “heavy burden in advancing [his or her] claim.” Nat’l Endowment for the Arts v.
Finley, 524 U.S. 569, 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.” (internal quotation marks omitted)). The
oft-cited standard for facial challenges is derived from dicta in United States v. Salerno, 481 U.S.
739 (1987), wherein then-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. In
Tartikov II, the Court determined that this standard is inapplicable to Plaintiffs’ claims. See 138
F. Supp. 3d at 403–07. The Court provided several reasons for this holding.
First, the Court concluded that Salerno does not apply to First Amendment claims. See
id. at 404; 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.”); United States v. Farhane, 634 F.3d 127, 138–39 (2d Cir. 2011) (acknowledging that
the Salerno standard is not applicable to First Amendment claims); Lerman v. Bd. of Elections in
City of N.Y., 232 F.3d 135, 144 (2d Cir. 2000) (“Salerno, however, does not apply to this case, in
which the plaintiffs assert the violation of rights protected by the First Amendment.”). Second,
relying on rulings made in Tartikov I, the Court echoed that the Salerno line of cases was
“distinguishable from the instant case because no case in the Salerno line involved allegations of
discriminatory animus grounded in race or religion.” Tartikov II, 138 F. Supp. 3d at 404
(internal quotation marks omitted). Thus, the Court reiterated that “the Salerno test would be
met if the Challenged Laws violate Plaintiffs’ Equal Protection or Free Exercise rights because ‘a

24

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. (quoting Tartikov I, 915 F. Supp. 2d at 613 n.18). Third, the Court held that, in the
context of the Free Exercise Clause, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993), offered an alternate and directly applicable standard to apply. Tartikov II,
138 F. Supp. 3d. at 406. Lukumi provides that “government, in pursuit of legitimate interests,
cannot in a selective manner impose burdens only on conduct motivated by religious belief.”
508 U.S. at 543; see also Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012,
2019 (2017) (“The Free Exercise Clause ‘protect[s] religious observers against unequal
treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special
disabilities’ based on their ‘religious status’” (quoting Lukumi, 508 U.S. at 533, 542)); Cent.
Rabbinical Congress v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 196 (2d Cir.
2014) (“[W]here 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.”); id. (noting that the “burdens” of the challenged regulation fell “on only a
particular religious group—and in fact exclusively on members of one particular subset of that
religious group”); Commack Self-Serv. Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 210 (2d Cir.
2012) (applying this standard to a facial challenge under the Free Exercise Clause).
In reliance on this body of law, the Court concluded that 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.”
Tartikov II, 138 F. Supp. 3d at 406. The Court will adhere to this ruling because Plaintiffs’

25

experience serves as an important source of evidence on the question of the constitutionality of
the Challenged Laws. See Doe v. City of Albuquerque, 667 F.3d 1111, 1123–24 (10th Cir. 2012)
(rejecting application of Salerno and 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.
Township 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 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 ordinance violates the EPC because it treats the plaintiff’s property differently than other
similarly situated landowners.”).
B. Substantive Liability
Plaintiffs assert that the Challenged Laws violate the First and Fourteenth Amendments
of the United States Constitution, RLUIPA, the FHA, §§ 3, 9, and 11 of the New York State
Constitution, and New York common law. Although there is substantial overlap between many
of Plaintiffs’ claims, the Court will address each of them in turn.

26

1. Equal Protection—Fourteenth Amendment
The Equal Protection Clause of the Fourteenth Amendment “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).17 “Plaintiffs challenging . . . facially neutral laws on equal protection grounds
bear the burden of making out a prima facie case of discriminatory purpose.” Pyke v. Cuomo,
567 F.3d 74, 78 (2d Cir. 2009) (“Pyke II”) (internal quotation marks omitted); see also Tartikov
I, 915 F. Supp. 2d at 615 (“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 II, 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. at 76 (internal
quotation marks omitted); see also Jana-Rock Constr., Inc. v. N.Y.S. Dep’t of Econ. Dev., 438
F.3d 195, 204 (2d Cir. 2006) (noting that the Equal Protection Clause is violated, unless justified

17

Because the equal protection provisions of the New York Constitution are interpreted
consistently with the corollary provisions in the federal Constitution, see People v. Kern, 554
N.E.2d 1235, 1240 (N.Y. 1990) (holding that the guarantee of equal protection under the New
York Constitution is co-extensive with that of the federal Constitution); People v. McCray, 443
N.E.2d 915, 919 (N.Y. 1982) (“[O]ur State constitutional equal protection clause is no more
broad in coverage than its Federal prototype.” (citation omitted)), the Court addresses both
challenges here.
27

by strict scrutiny, when government action is “motivated by discriminatory animus and its
application results in discriminatory effect” (internal quotation marks omitted)). As the Court
previously held, Plaintiffs rely on the third method here. See Tartikov I, 915 F. Supp. 2d at 615.
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. County of Nassau, 180 F.3d 42, 50 (2d Cir. 1999)
(internal quotation marks and emphasis omitted). Though the desire to discriminate need not be
the sole motivating factor, see Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 265 (1977) (“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.”), it must be “a significant reason for a public
body’s actions,” 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
decisionmaking 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 LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir.

28

1995) (“Discriminatory intent may be inferred from the totality of the circumstances,” including
“historical background” and “contemporary statements by members of 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 decisionmakers were knowingly responsive.” (internal quotation marks omitted)); United States v.
Yonkers Bd. of Educ., 837 F.2d 1181, 1221 (2d Cir. 1987) (explaining that “[i]ntent to
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)).
Judged against this standard, the evidence and testimony presented during trial proves
that Defendants passed the Challenged Laws with a discriminatory purpose. First, the timing of
each of the Challenged Laws is suspect, to say the least. The Accreditation Law, the relevant
provisions of which were adopted in January 2001 (Local Law No. of 2001) and amended in
September 2004 (Local Law No. 5 of 2004), was enacted in direct response to YSV’s desire to
build an Orthodox yeshiva on the Subject Property. During an informal presentation made by
YSV to the Village’s Planning Board on December 15, 1999, FPC advised the Village that its
zoning laws for schools “really stink.” (Pls.’ FOF ¶¶ 127–28.) One month later, FPC circulated
memoranda entitled “YSV-Pomona (Primary School and Pre-School),” and “Proposed Primary
School and Pre-School (YSV Pomona) and the Village Zoning Regulations regarding schools,”
both of which noted the existence of only “scant” regulations on schools and recommended that
the Village amend the pertinent laws. (Pls.’ Exs. 111, 130; see also Pls.’ FOF ¶ 129.) Both

29

memoranda specifically mention YSV and make reference to YSV’s development plans. (See
Pls.’ Ex. 111, at 1 (“As the Village Board may know, the Planning Board has recently been
approached regarding a proposed 100,000 square foot, 2-story primary school and a 35,000
square foot, 1-story pre-school on the 100-acre Camp Dora Golding property.”); Ex. 130, at
POM0004316 (“We have reviewed the Narrative Summary and the Preliminary Master Plan
Study . . . in connection with the [YSV-Pomona] project.”).) The timing of these
recommendations is significant because there were no other schools located in the Village in
2001. (See Joint Pretrial Order Stipulations of Fact ¶ 11.) At the time, Marshall noted that the
Board need to move quickly because “[t]hey[],” meaning YSV, “[are] going to come in” and the
Board of Trustees was “going to be caught with [its] pants down.” (Pls.’ Ex. 114, at 69.)
Then, in 2004, the year in which Local Law No. 5 of 2004 was passed, Defendants took a
number of actions which are indicative of discriminatory purpose. In January 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.” (Pls.’ Ex. 126, at 7.) The “block vote of the Orthodox Hasidic Jews” is
such a special interest group. (Trial Tr. 820.) In May 2004, the Village filed a lawsuit against
Ramapo seeking to set aside Ramapo’s Comprehensive Plan for failing to comply with SEQRA.
(See generally Pls.’ Ex. 155.) Of particular note, the petition asserted that Ramapo “attracted a
burgeoning Hassidic community,” which “caused development and political pressures in the
Town to increase its housing stock and infrastructure.” (Id. ¶¶ 31–32.) After Ramapo adopted
the ASHL in June 2004, the Village voted to challenge that law. (See Pls.’ Ex. 156 ¶ 27.) The
petition stated that the ASHL was passed “to secure for one religious community a unique and

30

significant zoning benefit.” (Id. ¶ 215.) Although this petition does not specifically name this
“religious community,” it is clear the petition is referring to Orthodox/Hasidic Jews. (See id.
¶ 38 (alleging that Yeshiva Chofetz Chaim of Radin was the owner of two of the properties on
which adult student housing was proposed); id. ¶ 141 (noting that the ASHL “was proposed
specifically in response to the request from a religious group for multi-family housing . . . to
house married adult students and their families”).) Marshall strongly opposed the ASHL, stating
that Ramapo officials “were pandering to the special interest groups able to deliver the critically
important block vote,” (Pls.’ Ex. 109, at POM0013281), i.e., the Orthodox Jewish vote out of
New Square, New York, (see Trial Tr. 619). Also during 2004, YSV had its tax-exempt status
denied for the first time, (see Joint Pretrial Order Stipulations of Fact ¶ 12), and Tartikov
purchased the Subject Property, (see Defs.’ Ex. 1057). Although there is no evidence that
Defendants were aware that Tartikov purchased the Subject Property until November 2004, (see
Joint Pretrial Order Stipulations of Fact ¶ 15), Defendants were aware of the growth of the
Orthodox/Hasidic community in Ramapo and sought to prevent the spread of that community
into the Village. Significantly, as noted, there were no schools within the Village in 2004. (See
id. ¶ 14.)
With regard to the Dormitory Law, the relevant provisions of which were adopted in
September 2004 (Local Law No. 5 of 2004) and January 2007 (Local Law No. 1 of 2007), the
evidence of discriminatory purpose is even stronger. The Village opposed Ramapo’s ASHL, and
then, to prevent the spread of Orthodox/Hasidic adult student housing into the Village, the Board
of Trustees adopted Local Law No. 5 of 2004, which prohibits “[s]ingle family, two-family
and/or multi-family dwelling units,” (Local Law No. 5 of 2004 § 2), housing similar to that
permitted under the ASHL. Moreover, Local Law No. 1 of 2007, which amended provisions of

31

the Dormitory Law, was passed during a contentious Board of Trustees meeting. Village
residents were vehemently opposed to what they believed to be Tartikov’s development,
although the information they learned came from Preserve Ramapo. (See Pls.’ Ex. 65.) Many of
the attendees’ comments focused on the nature and size of the development, but some of the
attendees were opposed to the development because it was proposed by Orthodox/Hasidic Jews.
One attendee noted that he or she had heard that Tartikov’s proposal was for “rabbinical students
and their families,” and sought a way to prevent institutions from being “flooded with family
members and children, and all of that sort.” (Pls.’ Ex. 137, at 70 (emphasis added).)18 Marshall
indicated, in response, that the “[a]ccessory use” provision of the Dormitory Law “addresses that
to some degree.” (Id. at 71.) Another attendee stated, in reference to Tartikov’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 was fearful that the Village would turn into another “Kiryas
Joel,” a Hasidic community located in the Town of Monroe. (Id. at 56.) The Village’s actions
and the statements made by the attendees at the Board meeting reveal a fear that Tartikov, and its
students, were going to take over the Village and change its “character” and “politics.” (Id. at
10.) Although the opposition from the public was not overtly discriminatory, these statements
support a finding of discriminatory animus. See Mhany Mgmt., Inc. v. County of Nassau, 819
F.3d 581, 608–09 (2d Cir. 2016) (noting that comments about the “flavor” and “character” of a
village, although “not overtly race-based” could be “code words for racial animus” (internal
quotation marks omitted)).

18

The transcript does not identify the gender of the attendee.
32

The Wetlands Law, the relevant provisions of which were adopted in April 2007 (Local
Law No. 5 of 2007), was enacted despite the fact that there is no evidence that the Village
conducted 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. Village officials did, however, know
there were wetlands located on the Subject Property before the law was adopted, (see Trial Tr.
670 (Marshall stating that he knew there were wetlands on the Subject Property prior to 2007);
Pls.’ Ex. 69, at 1 (email from Yagel discussing the presence of wetlands on the Subject
Property); Pls.’ Ex. 104, at 1 (Marshall noting, in January 2002, that there are wetlands on the
Subject Property); Pls.’ Ex. 107, at 2 (October 22, 2001 Board meeting minutes noting that
Marshall “stressed” that YSV needed to protect the wetlands located on the Subject Property);
Pls.’ Ex. 141, at 20 (1997 Update to the Village’s Master Plan noting that the Subject Property
contains “part of a large State-regulated wetland”)), indicating that this law was designed to
prevent Tartikov from building its proposed rabbinical college. Further evidence that the Village
passed the Wetlands Law to target Tartikov is found in the scope of the law’s provisions. The
law exempts from its coverage residences improved with single family residences. See Village
Code § 126-3(D) (“The aforesaid [100] foot buffer in which regulated activities are not permitted
to take place shall not apply to lots that are improved with single-family residences.”) In the
Village, there are 1,156 parcels of land, with 285 of them located within 100 feet of mapped
wetlands. (See Beall Decl. ¶ 180.) Of those 285 parcels, 240 of them are improved with single
family residences, leaving a maximum of 45 parcels subject to regulation. (See id. ¶¶ 180–81.)
The fact that the Subject Property just so happens to be one of the 45 parcels subject to
regulation is telling. Also troubling is the Village’s decision to adopt a law relating to wetlands
in 2007, after it learned of Tartikov’s proposed use, despite the fact that it considered passing a

33

similar law in the 1990s. (See Ulman Aff. ¶ 92.) It was not until Tartikov came along that such
a law became “necessary” to prevent the unidentified risks to the Village’s unidentified wetlands.
The Court need not rely solely on this circumstantial evidence to conclude that the
Wetlands Law was conceived of and passed with a discriminatory purpose. Village officials
explicitly stated their intent to thwart Tartikov’s plans. Between the time the Wetlands Law was
first proposed and the time that it was adopted, Sanderson, Louie, and Yagel indicated in
campaign materials that voters needed to “stand up to the threat” that Tartikov 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.’ Ex. 41.)
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.’ Ex. 47, at 1 (emphasis
added).) The campaign materials for all three candidates indicated that “the single most
important issue facing the village [was] clearly the Tartiko[v] development.” (Pls.’ Ex. 41.)
Sanderson, Louie, and Yagel won the election in March 2007, (see Joint Pretrial Order
Stipulations of Fact ¶ 22), and, at least, Yagel and Louie voted in favor of passing the Wetlands
Law, (see Defs.’ Post-Trial Brief (“Defs.’ Mem.”) 19 (Dkt. No. 323)).
In addition to these comments, Plaintiffs have identified a number of other statements by
Village officials indicative of Defendants’ prejudice against Tartikov and Orthodox/Hasidic
Jews, see Yeshiva Chofetz Chaim Radin, Inc. v. Village of New Hempstead, 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 the
motivation that can be attributed to the [v]illage itself in passing the disputed provisions”),
including:

34



In February 2007, Yagel and Louie authored a letter to The Journal News
stating that “a virtual mini-city within the village . . . that will house thousands
of homogenous individuals” was not a “natural” progression for the Village.
(Pls.’ Ex. 17 (internal quotation marks omitted).) Yagel was also quoted in the
New York Times stating that it was “disgusting” that Tartikov was “trying to
create [a] mini city in our village.” (Pls.’ Ex. 169, at 1 (internal quotation marks
omitted).)19



Sanderson has publicly stated that the Village should “maintain[] its cultural
and religious diversity.” (Pls.’ Ex. 146 ¶ 106 (internal quotation marks
omitted).) However, Sanderson is unaware whether any Hasidic Jews live in
the Village. (See Trial Tr. 559.)



Leslie Sanderson, who served as Village Clerk, testified that she was worried
Tartikov would “usurp” the Village and Board of Trustees. (Trial Tr. 543.)



Louie made a Facebook post which indicated discriminatory animus towards
the Orthodox/Hasidic Jewish population. (See Pls.’ Ex. 72.) See Tartikov II,
138 F. Supp. 3d at 392–93.

Significantly, these statements were made despite Defendants’ efforts to refrain from publicly
making disparaging or discriminatory comments. (See Pls.’ Ex. 13, at 1 (email from Yagel to
Louie and Sanderson noting that they “[m]ust be very careful about what we say” because they
“[d]on’t know who is in the audience”); Pls.’ Ex. 146 ¶¶ 110–11 (admitting that Louie and Yagel
told “everyone” at a Pomona Civic Association meeting that they “must be careful about their
statements”).)
Members of the community also expressed animus against Orthodox/Hasidic Jews. Mel
Cook, a Village resident who served on the Village’s Planning Board from 1998-2003, (Melvin
Cook Dep. (“Cook Dep.”) 17), wrote to The Journal News and corresponded with Village
officials about his views on Tartikov and Orthodox/Hasidic Jews, (see Pls.’ FOF ¶ 306; Pls.’

19

Defendants take solace in the fact that these statements were admitted as exhibits, but
not for the truth of the matters asserted. However, these statements were offered, and admitted,
not for their truth, but because they reveal Yagel’s and Louie’s animus toward Tartikov and
Orthodox/Hasidic Jews.
35

Exs. 38, 54). With specific reference to Tartikov, Cook stated that “[i]f it looks like a duck,
walks like a duck and quacks like a duck, it’s an ultra-Orthodox housing project,” (Cook Dep. 99
(internal quotation marks omitted)), that he saw the rabbinical college as “another restricted
religious community similar to New Square,” (id. at 102 (internal quotation marks omitted)), and
described New Square as a “tribal ghetto,” (see id. at 89–90). Robert Prol, another Village
resident, made similarly disparaging comments about Tartikov. Prol stated that Tartikov would
be a “slum,” (Robert Prol Dep. (“Prol Dep.”) 92 (internal quotation marks omitted)), referred to
the Babad family as the “baBad” family, (Pls.’ Ex. 20), and sent emails to Village officials
stating that the Village should fight Tartikov’s proposal, (see Prol Dep. 31–32; Pls.’ Ex. 20). In
spite of his expressed opposition to Tartikov’s development, Sanderson appointed Prol to the
Village’s Planning Board in May 2008. (See Prol Dep. 13.) Prol’s and Cook’s comments are in
addition to the negative sentiment expressed by village residents.20 During his campaign,
Sanderson met with hundreds of residents who were opposed to Tartikov’s project. (See Trial
Tr. 472.)
Of course, statements by Village residents can be attributed to the Board of Trustees only
if the Board was aware of these sentiments and was responsive to the displayed animus. See
Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 580 (2d Cir. 2003) (noting that the
“hostility [of neighborhood residents] motivated the [municipality] in initiating and continuing
its enforcement efforts”); LeBlanc-Sternberg, 67 F.3d at 425 (explaining that discriminatory
intent may be demonstrated “by showing that animus against the protected group was a

20

Plaintiffs have identified a number of anonymous comments posted on the Internet in
support of their claim that the community opposed Orthodox/Hasidic developments. (See Pls.’
FOF ¶ 300.) These comments do reveal a bias against the Orthodox/Hasidic community, but the
Court places little reliance on them because they are not attributed to Village residents or
officials.
36

significant factor in the position taken by . . . those to whom the decision-makers were
knowingly responsive.” (internal quotation marks omitted)). The evidence adduced at trial
reveals that Defendants were aware of the residents’ animus and acted on that animus. In one
instance, based on public comments made during the January 22, 2007 meeting—the meeting
during which Local Law No. 1 of 2007 was passed—the Board voted to impose a 25-foot height
restriction on dormitories, even though no other building in the Village is subject to a 25-foot
height limitation. (See Trial Tr. 633 (Marshall testifying that increasing the height limitation
“was rejected based on the comments from the—from the citizenry who attended”).) Based on
comments made during that same meeting, the Board rejected a proposal to increase the number
of dining halls permitted in dormitories from one to two. (See Pls.’ Ex. 137, at 77 (Sanderson
stating that “based on the input from the public this evening, I think . . . [w]e should cut out the
two dining rooms and go back to one”).) Marshall also strongly implied his agreement with the
sentiment expressed during this meeting. (See id. at 58–59 (“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 say. I can’t say what I feel—I can’t—if I
agree with you, I don’t agree with you, I don’t have that luxury of being able to say that here.”).)
Aside from the January 22, 2007 meeting, the members of the Board testified that they take into
consideration residents’ opinions when voting on laws, (see Pls.’ FOF ¶ 326), and Sanderson,
Yagel, and Louie created their campaign literature and platform to be responsive to the public’s
concerns, i.e., by stating that they would “fight” against Tartikov, (Pls.’ Ex. 41). They carried
through on this promise by voting in favor of Local Law No. 5 of 2007. Additionally, certain
Trustees aligned themselves with Preserve Ramapo, the group that opposed Tartikov’s

37

development and leaked its plans to the public. (See, e.g., Trial Tr. 499–500 (Sanderson
testifying that his campaign slate had close ties to Preserve Ramapo).)
Finally, Defendants’ behavior with respect to other proposed projects is indicative of
their intent to thwart the expansion of the Orthodox/Hasidic community. The Village has a
demonstrated history of opposing various Orthodox/Hasidic Jewish land uses near the Village.
As early as 1996, the Village opposed the expansion of Bais Yaakov, an Orthodox Hasidic
yeshiva in Ramapo. (See Pls.’ Ex. 125, at 7.) The Village wrote a letter in opposition to the
expansion, attended a Ramapo meeting and read an opposition statement, challenged the
expansion in court, and encouraged Village residents to object to the expansion. (See id. at 7–8;
see also Trial Tr. 808 (Ulman affirming that the Village encouraged opposition to the expansion
of Bais Yaakov).) In 1999, the Village did not object to the “Anna Mann” property becoming an
assisted living facility, but then when it was later proposed that the property be used for a
yeshiva, the Village did oppose the development. (See Trial Tr. 802.) In 2004, as noted above,
the Village opposed Ramapo’s Comprehensive Plan and the ASHL. (See Pls.’ FOF ¶¶ 136–38,
141.) The Village also expressed opposition to the development of three yeshivot outside of the
Village. (See Trial Tr. 808–11.)
The Village does not, however, have this same history of opposition when it comes to
non-Orthodox/Hasidic land uses. In 2001, Marshall informed residents that they had to accept
group homes within the Village because such land uses were protected under the FHA. (See
Trial Tr. 614.)21 In May 2002, the Board, with the exception of one Trustee, informally
approved Barr Laboratories’ purchase of land within the Village to erect an office building, even

21

The Village did not provide similar instructions with regard to RLUIPA. Instead, it
passed a resolution in February 2007 asking Congress to revisit the law. (See Pls.’ Ex. 58.)
38

though the land was zoned residential. (See Pls.’ Ex. 124, at POM0002022.) Furthermore, on
the same day it adopted Local Law No. 1 of 2007, the Board voted in favor of applying for funds
to create a senior citizen center within the Village. (See Pls.’s Ex. 75, at POM0016278.) Ulman
testified that the Village has “consistently opposed high-intensity development,” (Ulman Aff.
¶ 16), as a means of showing that the Village opposes large developments regardless of who
proposes them, but the fact remains that the Village has consistently opposed proposals by
Orthodox/Hasidic Jews.
Not all of the evidence, however, points in favor of finding that Defendants acted with a
discriminatory purpose. Some of the outrage directed toward Tartikov was premised on the size
and scope of its proposed development. Based on what is currently known, which is very little
because Tartikov has not revealed the full plan for the Subject Property, Tartikov’s proposal has
the potential to add thousands of residents to a village that has a current population of
approximately 3,000. See Village of Pomona, About The Village,
http://www.pomonavillage.com/about.html (last visited Nov. 11, 2017). Nonetheless, given the
totality of the credible evidence, the Court concludes that discriminatory purpose was “a
significant reason for [Defendants’] actions,” Cine SK8, 507 F.3d at 786. There is no escaping
the fact that the events leading up to the enactment of the Challenged Laws, the context in which
they were adopted, the Village’s specific focus on opposing Orthodox/Hasidic development in
and around the Village, and the public statements of Village officials and residents, to which the
officials were responsive, all reveal that Defendants passed the Challenged Laws to thwart the
spread of the Orthodox/Hasidic Jewish community into the Village.

39

b. Discriminatory Effect
In establishing discriminatory effect, Plaintiffs are not “obligated to show a better treated,
similarly situated group of individuals.” Pyke v. Cuomo, 258 F.3d 107, 110 (2d Cir. 2001)
(“Pyke I”) (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 courts “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).
At trial, Plaintiffs demonstrated that Defendants’ animus hit its mark; the Challenged
Laws prohibit Plaintiffs from constructing the type of rabbinical college they seek to obtain.
First, with respect to the Accreditation Law, educational institutions are, in general, permitted in
the Village, provided that those who wish to build an educational institution first obtain a special
use permit. See Village Code § 130-10(F). Unaccredited educational institutions, however, are
not permitted under any circumstances, because “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. There is no dispute that Tartikov’s
proposed rabbinical college cannot be accredited by any accrediting body. (See Kinser Decl.
¶ 29; Trial Tr. 446–51.) Indeed, Defendants’ expert witness on accreditation requirements,
Preston Green, focused on the steps Tartikov could take to modify its plan so as to qualify for
accreditation. (See id. 452.) The proposed modifications were painted as easy fixes, but fail to
resolve the largest impediment to Plaintiffs’ proposal—the rabbinical college cannot be
accredited until it is operational, (see id. (“So the first step it would have to do is to be in the

40

position where it could be operational . . . .”)), but it cannot become operational under the
Accreditation Law until it is accredited. At the end of the day, no matter what Tartikov does to
its curriculum or admissions standards, it cannot be accredited without first being operational.
Thus, the Accreditation Law blocks Tartikov from building a rabbinical college within the
Village.
Second, with regard to the Dormitory Law, the Village Code explicitly provides that
“[s]ingle-family, two-family[,] and/or multifamily dwelling units . . . shall not be considered to
be dormitories or part of dormitories.” Village Code § 130-4 (defining “dormitory”).
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). These provisions were designed to prevent the spread of
Orthodox/Hasidic adult student housing into the Village and they achieve their desired effect.
Tartikov seeks to erect family housing on the Subject Property with kitchens in each residence so
that students can diligently study the Shulchan Aruch while also meeting their religious
obligations to their families. (See Pls.’ FOF ¶¶ 24–25, 69.) The definition for “dormitory”
prohibits these types of residences because separate cooking and dining facilities are prohibited.
See Village Code § 130-4. The 20% floor space limitation on dormitories is similarly
problematic because, to comply with the Property Maintenance Code of New York, Plaintiffs
would have to construct residences that are at least 700 square feet. (See Pls.’ Ex. 1512
(“Weinstein Decl.”) ¶ 30.) Thus, even if Plaintiffs were to build a campus consisting of
academic buildings totaling 100,000 square feet, the Dormitory Law’s 20% floor space
restriction would permit a dormitory only 20,000 square feet in size—enough to accommodate
roughly 30 students and their families. On its face, the Dormitory Law does not prohibit student

41

housing within the Village—reflecting the ingenuity of Defendants’ actions—but when one digs
deeper, it is evident that the law was designed to block the exact type of housing Tartikov seeks
to construct.
Finally, with regard to the Wetlands Law, two provisions, working together, bar
construction of the rabbinical college in the Village. First, Village law provides that “[t]he
minimum lot area for an educational institution” is “a net lot area of 10 acres.” Village Code
§ 130-10(F)(1)(a). The only non-government-owned property available in the Village that can
accommodate an educational institution is the Subject Property. (See Trial Tr. 310 (“Well, I
knew [the] Tartikov site was the only 100-acre site or only site large enough to build an actual
campus based on the zoning. I think you need a 10-acre site, it’s the only site available.”).)22
Second, the Wetlands Law itself defines 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 watercourse
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 to, in relevant part, “[e]rect[] any building or structure of any kind,”
including “roads [or] driveways,” without a permit. Id. § 126-3(A)(3), (B). Exempted from the
permit requirement, however, are properties improved by single family homes, see id. § 126-

Defendants “do not agree that the [Subject] Property is the only” property suitable in
the Village for an educational intuition, (Defs.’ Mem. 35), but have not cited any evidence to
support this assertion. If another property exists in the Village that meets the minimum “net lot
area of 10 acres,” Defendants have not identified it.
22

42

3(D), meaning that only approximately 45 parcels are subject to regulation. (See Beall Decl.
¶¶ 180–81.) And of those regulated parcels, 20 of them are vacant lots. (See id. ¶ 181.)
The 100-foot buffer imposed on the regulated parcels, of which the Subject Property is
one, prevents the construction of the rabbinical college because the only suitable location for the
driveway onto the property falls within 100 feet of regulated wetlands. (See Trial Tr. 1017–18
(Barbara Beall (“Beall”) confirming that there are wetlands located within 100 feet of the current
driveway).) No other location is feasible because of the existence of other wetlands and steep
slopes on the property. (See Trial Tr. 781 (Ulman confirming the existence of “steep slopes” on
the “easterly side of the property”); Beall Decl. ¶ 250 (“The existing driveway, and any new
driveway providing access to Route 306 on the west side of the [Subject] Property would be
within the WPL’s 100 foot wetland buffer.”); id. ¶ 265 (“Any driveway access to Route 202
would require significant regrading of the slopes.”).) Of course, Plaintiffs could apply for a
permit to modify the existing driveway, but Plaintiffs would need to show that the Wetlands Law
“results in a deprivation of the reasonable use of [the] property so as to constitute a de facto
taking.” Village Code § 126-5. Tartikov cannot meet this standard; the Parties have stipulated
that “Tartikov cannot establish that the Challenged Laws have deprived it of economically
reasonable use or value of the Subject Property, as it may be developed with single family
residences.” (Joint Pretrial Order Stipulations of Law ¶ 18 (Dkt. No. 257); see also Ulman Aff.
¶ 80 (stating that it would be “impossible” for Plaintiffs to prove “that there is no other economic
use for the property”).)
Accordingly, Plaintiffs have carried their burden and established by a preponderance of
the evidence that the Challenged Laws “ha[ve] an adverse effect and . . . [were] motivated by
discriminatory animus.” Pyke II, 567 F.3d at 77 (internal quotation marks omitted).

43

c. Strict Scrutiny—Compelling Interest
Because Plaintiffs have carried their burden of establishing a prima facie case, strict
scrutiny applies to the Challenged Laws. 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.”). Thus,
Defendants bear the burden of proving that the Challenged Laws are “narrowly tailored measures
that further compelling governmental interests.” Johnson v. California, 543 U.S. 499, 505
(2005) (internal quotation marks omitted). 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 “interests of the highest order,” Westchester Day Sch. v. Village of
Mamaroneck, 504 F.3d 338, 353 (2d Cir. 2007) (“WDS II”) (internal quotation marks omitted),
and the “gravest abuses,” Sherbert, 374 U.S. at 406.
At summary judgment, the Court concluded that the Challenged Laws do not survive
strict scrutiny because the interests Defendants have offered justifying their adoption are not
compelling. See Tartikov II, 138 F. Supp. 3d at 418 (“While the Challenged Laws may be
justifiable under a rational basis test, they do not survive strict scrutiny.”); see also id. at 420
(“[T]he 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.”); id. (“[W]ith 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 . . . .”); id. (“[W]ith regard to the Wetlands Law, while there is some
evidence to suggest a need for a wetlands law, . . . Defendants offer no evidence beyond Ulman’s

44

testimony . . . .”). Defendants have not presented any evidence or made any argument regarding
whether the Challenged Laws can survive strict scrutiny. (See generally Defs.’ Mem.) Their
arguments focus entirely on whether Plaintiffs have established a prima facie case of
discrimination. Defendants do, however, offer several justifications for the Challenged Laws.
Although none of these justifications rises to the level of a compelling governmental interest, the
Court will address each of them in turn. Before doing that, the Court notes that Defendants
commissioned no studies or experts when examining the compelling need for the Challenged
Laws, suggesting that any proffered interests are an “afterthought effort to bolster a flimsily
supported decision,” Westchester Day Sch. v. Village of Mamaroneck, 417 F. Supp. 2d 477, 554
(S.D.N.Y. 2006), 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) (“Fortress Bible I”),
aff’d, 694 F.3d 208 (2d Cir. 2012).
i. Local Law No. 1 of 2001
Local Law No. 1 of 2001 was enacted because the Board of Trustees “wanted to have
educational institutions as special permit uses rather than as of right, and to set up standards by
which density and impacts on adjoining properties would be regulated.” (Ulman Aff. ¶ 25.) In
support of this justification, Marshall testified that he was “very much in favor of . . . Yeshiva
Spring Valley” and thought that YSV’s proposal was “the best possible use of” the Subject
Property. (See Trial Tr. 650.) Defendants further contend that Local Law No. 1 could not have
been designed to discriminate against YSV because “[h]ad YSV filed an application and had a
site plan approved prior to the enactment of Local [Law No.] 1 of 2001, the previous law, not
Local Law [No.] 1 of 2001, would have applied to YSV’s application.” (Ulman Aff. ¶ 31; see

45

also Defs. Mem. 11 n.8 (citing Exeter Bldg. Corp. v. Town of Newburgh, 980 N.Y.S.2d 154
(App. Div. 2014)).)
The Court does not credit these justifications or the testimony that was offered in support
of them. As a general matter, Defendants’ understanding of what law would have applied to
YSV’s application is incorrect. Their argument is premised on a faulty understanding of the
doctrine of vested rights, which “is implicated when a property owner seeks to . . . initiate the use
of property . . . in a way that was permissible before enactment of amendment of a zoning
ordinance but would not be permitted under a new zoning law.” Exeter Bldg. Corp., 980
N.Y.S.2d at 158–59. “[A] vested right can be acquired when, pursuant to a legally issued permit,
the landowner demonstrates a commitment to the purpose for which the permit was granted by
effecting substantial changes and incurring substantial expenses to further the development.”
Id. at 159 (emphasis added) (internal quotation marks omitted). The landowner’s reliance on the
existing zoning law “must be so substantial that the municipal action results in serious loss
rendering the improvements essentially valueless.” Id. (internal quotation marks omitted). There
is absolutely no evidence in the record that YSV had made substantial changes to the property or
incurred substantial expenses before Local Law No. 1 was adopted. In fact, the record reveals
the opposite. YSV had not even filed an application before the law was adopted. (See Ulman
Aff. ¶ 29.) Thus, YSV’s application likely would have been subject to the amended provisions
of the Village’s laws.
A second reason the Court does not credit Defendants’ justifications is that they largely
ignore the context in which the law was passed. The only reason the Village made educational
institutions special permit uses was because of YSV’s informal presentation to the Board in
December 1999. (See Pls.’ FOF ¶ 127.) That presentation precipitated a series of events that

46

culminated in the adoption of Local Law No. 1 of 2001, a law which ultimately prevented YSV
from building a yeshiva in the Village. (See Fromowitz Dep. 59–62.)23
Thus, Defendants have failed to offer a credible, non-discriminatory justification for
enacting this local law.
ii. Local Law No. 5 of 2004
Ulman, who became Village Attorney in July 2003, (Ulman Aff. ¶ 1), drafted Local Law
No. 5 of 2004, (see id. ¶ 90). Ulman testified that the “purpose” of this law was to: (1) remove
the .05 acre-per-student requirement for educational institutions imposed by Local Law No. 1 of
2001; (2) permit dormitories within the Village; (3) clarify the definition of “educational
institution” and remove the definition for “school”; and (4) remove the requirement that
educational institutions be located on state or county roads. (See id. ¶ 40.)24 Ulman explained
that prior to the enactment of this law, dormitories were prohibited in the Village, (see id. ¶ 38),
and that she copied the definition for “dormitory” from laws passed in Ramapo and Chestnut
Ridge, (see id. ¶ 47), which similarly do not permit kitchens in dormitories, (see id. ¶ 46; see also
Defs.’ Ex. 1017, at 2 (Ramapo’s definition for “dormitory”); Defs.’ Ex. 1018, at XVIII-12

23

Defendants argue that Fromowitz was unable to identify a single instance in which a
Village official opposed YSV’s proposal, but Defendants overlook the obvious instance in which
Village officials did just that—the passage of Local Law No. 1 of 2001. YSV proposed a school
for 1,000 students. (See Fromowitz Dep. 59.) Local Law No. 1 imposed a minimum lot
requirement of 10 acres, with an additional .05 acres per student, but subtracted from the total
acreage steep slopes and certain wetlands. (See Local Law No. 1 of 2001 § 4.) After all of the
excluded areas were subtracted from the total acreage of the Subject Property, the law made it
“impossible” for YSV to build the proposed yeshiva. (See Fromowitz Dep. 60.)
Ulman described the acreage-per-student requirement as a “half-acre requirement,” but
this is incorrect. (Id. ¶ 40.) Local Law No. 1 of 2001 mandated that educational institutions
have a minimum net lot area of 10 acres and additional “0.05 acre for each pupil enrolled.”
(Local Law No. 1 of 2001.)
24

47

(Chestnut Ridge’s definition for “dormitory”).25 Ulman also claimed that the inclusion of
provisions regarding dormitories was motivated by “recent case law developments in New York
State.” (Ulman Aff. ¶ 48 (citing Congregation Mischknois Lavier Yakov Inc. v. Board of
Trustees of Village of Airmont, No. 02-CV-5642 (S.D.N.Y. filed July 19, 2002); Diocese of
Rochester v. Planning Bd. of the Town of Brighton, 136 N.E.2d 827 (N.Y. 1956); and Cornell
Univ. v. Bagnardi, 503 N.E.2d 509 (N.Y. 1986)).) According to Ulman, these cases indicated
that the Village could not prohibit educational institutions from constructing dormitories on
campus. (See id.)
Local Law No. 5 of 2004 is also the law that amended the accreditation requirements
such that educational institutions must be accredited by “the New York State Education
Department or similar recognized accrediting agency.” (See Local Law No. 5 of 2004 § 1.) The
purpose of this amendment purportedly was to clarify an inconsistency in the Village code, (see
Ulman Aff. ¶ 52), which mandated that “schools” be approved by the New York State Board of
Regents or the New York State Education Department, while “educational institutions” had to be
licensed by New York State, (see Local Law No. 1 of 2001 §§ 1–2). By eliminating the
definition for “schools,” and broadening the universe of accrediting agencies, Ulman believed
that she was making it easier for applicants to understand the Village’s zoning requirements.
(Ulman Aff. ¶ 52.)

Ulman testified that “the laws in Chestnut Ridge, Ramapo and Orangetown and many
other municipalities do not permit kitchens in dormitories.” (See Ulman Aff. ¶ 46.) Tellingly,
Ulman has identified only three other jurisdictions that do not permit kitchens in dormitories.
Also significant is the fact that Defendants have admitted as exhibits only the code provisions for
Chestnut Ridge and Ramapo. The Court has independently reviewed the code for Orangetown
and finds no provision similar to that which the Village adopted. Orangetown does have a
provision regulating dormitories, but that provision does not prohibit separate cooking or dining
facilities. See Town of Orangetown Code § 43-8.2.
25

48

The Court finds some of Ulman’s testimony on these matters credible. For example, the
Court has no reason to doubt that removing the definition for “school,” and the duplicative and
inconsistent accreditation requirements imposed by that definition, made the Village Code easier
to understand. In other respects, however, the Court does not credit Ulman’s stated justifications
for Local Law No. 5 of 2004. First, Ulman testified that none of the stated justifications required
the Village to ban multi-family housing. (See Trial Tr. 835.) Second, by “recent” developments
in case law, Ulman refers to cases decided in 1956 and 1986 and one filed in 2002. (See Ulman
Aff. ¶ 48.) The case filed in 2002 would have been “recent,” but Ulman’s inclusion of cases
decided decades before Local Law No. 5 of 2004 was under consideration shows a willingness to
stretch the truth and detracts from her overall credibility. Third, although the amendment to the
accreditation provision expanded the universe of accrediting bodies, the purpose of the
accreditation requirement was to regulate “commercial-type training schools, . . . such as
automotive . . . [and] driving schools,” (Trial Tr. 898), which can be accredited, (see Kinser
Decl. ¶ 10). In any event, Ulman offered no testimony, and Defendants have offered no
evidence, that the Village was about to be besieged by such trade schools or otherwise explained
the timing of the promulgation of this requirement. Finally, Ulman’s reliance on the similarities
between Local Law No. 5 and Ramapo’s laws relating to dormitories is misplaced. Ramapo’s
zoning laws do prohibit individual kitchens within dormitories, (Defs.’ Ex. 1017, at 2), but
Ramapo’s ASHL, which the Village actually opposed, contemplates the existence of adult
student housing. See Village of Chestnut Ridge v. Town of Ramapo, No. 07-CV-9278, 2008 WL
4525753, at *1 (S.D.N.Y. Sept. 30, 2008) (noting that the ASHL “permits married, adult,
student, multi-family, high-density housing in single-family residential zones . . . in the

49

unincorporated portion of Ramapo.”). The Village does not have a similar provision permitting
such housing.
Setting aside the testimony described above, Defendants point to other evidence that they
argue proves that Local Law No. 5 of 2004 was passed for legitimate reasons. (See Defs.’ Mem.
14–15.) The law was originally discussed by the Board of Trustees during the summer of 2004,
(see Ulman Aff. ¶ 41), several months before the Village learned in November 2004 that
Tartikov purchased the Subject Property, (see Joint Pretrial Order Stipulations of Fact ¶ 15), and
years before the Village learned of Tartikov’s plans for the property, (see Ulman Aff. ¶ 57).
Furthermore, the Trustees who voted in favor of the law—Marshall, Sanderson, Roman, and
Alan Lamer (“Lamer”), (see Pls.’ Ex. 131, at POM0000432)—testified that they would not
condone discriminatory behavior, (see Trial Tr. 521 (Sanderson stating that he has “no animus
towards [Orthodox/Hasidic Jews] at all”); id. at 574 (Roman, an African American woman,
stating that her community has been “fighting discrimination” since 1865 and that she would not
engage in discriminatory behavior); id. at 668 (Marshall testifying that he is Jewish and finds
“any allegation of anti-Semitism” to be “repugnant”); id. at 736 (Lamer stating that his decision
to vote in favor of Local Law No. 1 of 2007 was not “motivated by any desire to keep Tartikov
from building a school within the Village”)).
The flaw in Defendants’ reasoning is that Local Law No. 5 of 2004 was not adopted in a
vacuum; other events that occurred around the time of adoption undercut Defendants’ position.
For example, the same Board that voted in favor of Local Law No. 5 and disclaimed a
discriminatory purpose also voted to challenge Ramapo’s ASHL because it was allegedly passed
“to secure for one religious community a unique and significant zoning benefit.” (Pls.’ Ex. 156
¶¶ 27, 215.) That religious community was Orthodox/Hasidic Jews. It is unsurprising, then, that

50

Local Law No. 5 was designed to prohibit the exact same type of multi-family housing permitted
under the Ramapo ASHL. Additionally, while Defendants have highlighted favorable testimony
from the Trustees that voted in favor of Local Law No. 5, they overlook other damaging
testimony indicative of discriminatory animus. For example, in June 2004, Marshall stated that
officials in Ramapo were “pandering to the special interest groups able to deliver the critically
important block vote,” (Pls.’ Ex. 109, at POM0013281), in reference to the Orthodox Jewish
community, (see Trial Tr. 619). In another example, during his campaign for mayor in 2007,
Sanderson stated that Tartikov “could completely change the village and the make-up of the
village.” (Pls.’ Ex. 47, at 1 (emphasis added).) There is no evidence that Roman and Lamer
made similar statements, but they were Trustees when the Board took concrete steps to prevent
the spread of the Orthodox/Hasidic community into the Village.
Thus, while Defendants’ proffered justifications for enacting Local Law No. 5 of 2004
are not entirely incredible, the Court finds that discriminatory purpose was “a significant reason
for [Defendants’] actions,” Cine SK8, 507 F.3d at 786.
iii. Local Law No. 1 of 2007
Ulman drafted Local Law No. 1 of 2007 “to address errors, inconsistencies and
vagueness issues in relation to the previously enacted educational institution and dormitory
laws.” (Ulman Aff. ¶ 53.) The law was originally presented to the Board of Trustees in
December 2006. (See id. ¶ 55.) Ulman testified that she did not learn about Tartikov’s proposal
until January 2007, (see id. ¶ 57), and thus Defendants contend that the law was not drafted to
discriminate against Plaintiffs.
The Court credits only part of Ulman’s testimony on this matter. Ulman may not have
been aware of Tartikov’s specific plan, but Ulman and the Board of Trustees were preparing to

51

oppose Tartikov’s use of the Subject Property before January 2007. Between July 2006 and
December 2006, the Board of Trustees was scheduled to meet ten times in executive session to
discuss Tartikov. (See Pls.’ Exs. 80, 83, 85, 87, 89–92, 119–20.) In New York, a public body
may conduct an executive session for the following reasons:
a. matters which will imperil public safety if disclosed;
b. any matter which may disclose the identity of a law enforcement agent or
informer;
c. information relating to current or future investigation or prosecution of a
criminal offense which would imperil effective law enforcement if disclosed;
d. discussions regarding proposed, pending or current litigation;
e. collective negotiations pursuant to article fourteen of the civil service law;
f. the medical, financial, credit or employment history of a particular person or
corporation, or matters leading to the appointment, employment, promotion,
demotion, discipline, suspension, dismissal or removal of a particular person or
corporation;
g. the preparation, grading or administration of examinations; and
h. the proposed acquisition, sale or lease of real property or the proposed
acquisition of securities, or sale or exchange of securities held by such public
body, but only when publicity would substantially affect the value thereof.
N.Y. Public Officers Law § 105. When pressed during oral argument about which exception is
applicable here, Defendants had no answer. The only exception that seems plausible is the
exception for litigation. However, Ulman submitted an affidavit earlier in this Action stating that
she first sensed that the Village could have a dispute with Tartikov in January 2007, (see Decl. of
Doris F. Ulman, Esq. ¶ 16 (Dkt. No. 203) (“At or around [January 2007], as Village Attorney, I
sensed the possibility that the Village may have a dispute with Plaintiffs in the future regarding
their stated intentions. I do not recall discussing this feeling, which was nothing more than a
suspicion, with anyone in January 2007.”)), making that exception inapplicable. Defendants’
fallback position is that Plaintiffs have proffered only meeting agendas, which only prove that
the Board planned to discuss Tartikov, not that it actually discussed Tartikov. Plaintiffs do not
know what was actually discussed during the executive sessions because anything discussed

52

during those portions of the Board meetings is privileged. (See Trial Tr. 852.) The only way for
the Court to know for sure what happened is for Defendants to waive the privilege. They have
not done so, as is their right. The Court can only draw one conclusion from this refusal—
Defendants discussed Tartikov and the ways in which they could limit Tartikov’s use of the
Subject Property during executive sessions from July 2006 through December 2006. Ulman’s
testimony that she did not know how Tartikov planned to use the Subject Property until January
2007 is therefore unpersuasive. Regardless of when Ulman learned of the specifics of Tartikov’s
plan, the Board was preparing to oppose Plaintiff’s use of the property as early as July 2006.
Moreover, Ulman’s stated justifications also do not explain why she added the provision
mandating that a “dormitory building shall not occupy more than 20% of the total square footage
of all buildings on the lot.” Village Code § 130-10(F)(12). The addition of this provision goes
well beyond fixing errors and inconsistencies, but instead imposed substantial restrictions on
Tartikov’s ability to build student housing sufficient to support the rabbinical college.
Defendants spend little time addressing these issues. Instead, they contend that Plaintiffs
worked behind the scenes to incite an atmosphere of hostility to make it appear as though
Defendants were targeting Plaintiffs. (See Defs.’ Mem. 17.) Specifically, Defendants focus on
the events leading up to the January 22, 2007 Board meeting. The Board was initially scheduled
to vote on Local Law No. 1 of 2007 on December 18, 2006, but Savad asked that the hearing on
the law be adjourned. (See Defs.’ Ex. 1041, at 4.) Then, on January 12, 2007, The Journal News
ran the article describing the size and scope of Tartikov’s proposal. (See Pls. Ex. 157.) The
article, attributing the figures to Savad, stated that the rabbinical college would house 1,000
rabbis and their families. (See id. at RC1634.) Defendants imply that Plaintiffs, with the help of
Savad, leaked the plans to the public to incite opposition to Tartikov’s proposal. As evidence of

53

this scheme, Defendants point to the fact that Savad hired a stenographer and videographer to
attend the January 22, 2007 meeting. (See Ulman Aff. ¶ 60.) Defendants construct an interesting
theory, but that is all that it is. They have no evidence to back it up. In any event, none of this
theorizing changes in any way the overwhelming evidence of discriminatory animus, or the fact
that this law served no compelling interests.
iv. Local Law No. 5 of 2007
Ulman drafted Local Law No. 5 of 2007 because “the Board was concerned about
wetlands in the Village that were not regulated by the State or federal government.” (Id. ¶ 68.)
She copied “the 100 foot buffer requirement in th[is] . . . [l]aw from the New York State
Environmental Conservation Law, which requires a permit from the NYDEC for any proposed
disturbance within 100 feet of any NYDEC regulated wetlands.” (Id.) In addition to reviewing
these regulations, Ulman “consulted a wetlands study prepared for Westchester County, NY . . .
and reviewed the wetlands laws of the villages of Chestnut Ridge, New Hempstead, and South
Nyack.” (Id. ¶ 71.) She further explained that “additional events . . . make it clear that the
Village had to enact this legislation,” i.e., “Hurricanes Floyd and Irene and super storm Sandy.”
(Id. ¶ 73.) Ulman believed that the Wetlands Law “would protect the health, safety, and welfare
of Village residents.” (Id. ¶ 69.)
There are several issues with Ulman’s testimony that detract from her credibility, thus
yielding the conclusion that none of the stated justifications holds any water. First, the Village
did not adopt the Wetlands Law until 2007, even though the idea of adopting such a law dates
back to 1997. (See Trial Tr. 1227–28.) Apparently, the Village’s wetlands were not at risk until
after Tartikov appeared on the scene. The Court finds this coincidence very suspicious. See
Cottonwood Christian Ctr. v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1225 (C.D.

54

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.”).
Second, there is no evidence that a regulatory void in fact existed prior to the enactment
of this law. Beall, Plaintiffs’ expert on wetlands science, testified that “federal and state wetland
regulations covered over 99% of all aquatic resources within the Village prior to the passage of
the [Wetlands Law].” (Beall Decl. ¶ 51; id. ¶ 58 (noting that “99% of the . . . mapped wetlands
in the Village” are regulated by the Corps of Engineers under the Clean Water Act); id. ¶ 59
(noting that “80%” of “the total acreage of . . . mapped wetlands in the Village . . . are regulated
by the NYSDEC under Article 24”). This testimony is unrebutted. Charles Voorhis,
Defendants’ expert on environmental planning, did not do “a full inventory of wetlands in the
[V]illage,” and therefore was unaware of any wetlands that were not protected by state or federal
law. (Trial Tr. 1275.) The only possible void filled by the Wetlands Law is that it imposes a
100-foot buffer around all wetlands, while federal and state law do not. (See id. at 1290.)
However, there is no evidence about whether this gap is significant because the Village did not
commission a study to determine whether unprotected wetlands existed in the Village or whether
the Wetlands Law was tailored to protect those areas.
Third, Ulman identified “Hurricanes Floyd and Irene” and “super storm Sandy” as events
that justified the passage of the Wetlands Law, but the timing of these events further reinforce
the conclusion that the law was passed to thwart Tartikov’s proposal. (Ulman Aff. ¶ 73.)
Hurricane Floyd occurred in 1999. See Andrew C. Revkin, The Big Storm: The Northern
Suburbs, The New York Times (Sept. 18, 1999),

55

http://www.nytimes.com/1999/09/18/nyregion/the-big-storm-the-northern-suburbs-lost-livesruined-homes-and-close-calls.html?mcubz=1. No explanation has been proffered for why the
Village waited almost a decade after that hurricane to enact legislation regulating wetlands. The
obvious explanation is that the Village did not deem it necessary. Hurricane Irene occurred in
2011 and Superstorm Sandy occurred in 2012, postdating the passage of the Wetlands Law by
several years. Defendants cannot rely on these events to justify a law that was passed in 2007.
Even if Defendants are relying on these events merely to show that the Village’s wetlands have
the potential to damage the Village and thus needed to be regulated, Defendants have not
explained whether the Wetlands Law prevented or lessened the damage that Hurricane Irene and
Superstorm Sandy would have caused without regulation.
Finally, the Wetlands Law states that the “protection of all wetlands is vital to the health,
safety and welfare of all persons,” Village Code § 126-1, yet exempts from its coverage “lots that
are improved with single-family residences,” id. § 126-3(D), effectively rendering the law
toothless. Out of over 1,000 parcels of land in the Village, only 285 of them are located within
100 feet of protected wetlands. (See Beall Decl. ¶ 180.) Of those 285 regulated parcels, 240 of
them are improved with single family residences. (See id. ¶ 181.) Thus, at most, 45 parcels are
subject to the law’s restrictions. By its own terms, the exception swallows the rule.
Despite Defendants’ failure to credibly explain why the Wetlands Law was adopted, they
have proffered other evidence that indicates, on its face, that the Board of Trustees adopted the
Wetlands Law for legitimate, non-discriminatory reasons. Defendants contend that the law was
not enacted to prevent Tartikov from developing a college because Ulman had “no knowledge of
what, if any, wetlands were on the [Subject] Property” at the time the law was drafted. (Defs.’
Mem. 19; see also Ulman Aff. ¶ 70 (“While the [Subject] Property is legally subject to this, the

56

Law was not prepared or enacted with the [Subject] Property in mind. I can say this because, as
I have stated, I drafted the law and when I drafted it, I had no knowledge of what, if any,
wetlands were on the property.”).) Even if Ulman did not know whether there were wetlands on
the Subject Property (which is dubious, at best), other Village officials did know that there were
wetlands on the property. Marshall made reference to wetlands on the Subject Property as early
as 2001, (see Pls.’ Ex. 107, at 2 (October 22, 2001 meeting minutes noting that Marshall
“stressed” that Yeshiva Spring Valley needed to protect the wetlands located on the Subject
Property)), and acknowledged during trial that he knew prior to 2007 that there were wetlands on
the property, (see Trial Tr. 670). Although Marshall was voted out of office before the Board of
Trustees voted on the Wetlands Law, he was the mayor during the drafting process. (See id. at
670–71; Ulman Aff. ¶ 74.) Yagel, who was elected to the Board in March 2007, discussed the
presence of wetlands on the property in January 2007. (See Pls.’ Ex. 69, at 1, 3.) And, the 1997
Village Master Plan Update contains a large diagram showing that there are wetlands on the
property. (See Pls.’ Ex. 141, at Fig. 1.)
Defendants also cite to the testimony of Sanderson, Yagel, and Louie to argue that the
Wetlands Law was not meant to discriminate against Tartikov. (See Defs.’ Mem. 19.)
Sanderson testified that the law was not passed with the intention of keeping Tartikov out of the
Village. (See Trial Tr. 521.) The Court does not credit this testimony because Sanderson ran for
mayor on a platform that included a promise to fight to keep Tartikov from developing the
Subject Property and expressed concerns about the “make-up” of the Village changing if
Tartikov were to build on the property. (See Pls.’ Ex. 41; Pls.’ Ex. 47, at 1.) Yagel similarly
testified that the Wetlands Law was not adopted to prevent Tartikov from building a rabbinical
college, (see Trial Tr. 728), and also that he was unaware of the existence of wetlands on the

57

property, (see id. at 727). The Court does not credit this testimony, and in one respect, it is false.
The Court does not credit Yagel’s testimony that the law was not adopted to discriminate against
Tartikov because Yagel made discriminatory comments leading up to the adoption of the law.
For example, in early 2007, Yagel co-authored a letter to The Journal News stating that “a virtual
mini-city within the village . . . that will house thousands of homogenous individuals” was not a
“natural” progression for the Village, (Pls.’ Ex. 17 (internal quotation marks omitted)), and was
quoted in the New York Times saying that it was “disgusting” that Tartikov was “trying to create
this minicity in our village,” (see Pls. Ex. 169, at 1 (internal quotation marks omitted)). The
Court does not credit the remainder of Yagel’s testimony because it is demonstrably false. As
indicated in the preceding paragraph, Yagel discussed the existence of wetlands on the Subject
Property in January 2007. (See Pls.’ Ex. 69, at 1, 3.) Finally, Louie testified that the Wetlands
Law was “absolutely not” enacted to prevent Tartikov from developing the property. (See Trial
Tr. 703.) For similar reasons as those provided for Yagel, the Court does not credit this
testimony. For example, Louie was a co-author of the letter to The Journal News. (See Pls.’ Ex.
17.)
In light of Defendants’ failure to provide any credible justification for the passage of the
Wetlands Law, or even explain what purpose it serves, the Court is left to conclude that the law
was enacted to thwart Tartikov’s proposed rabbinical college.
d. Strict Scrutiny—Narrowly Tailored
Even if Defendants had proffered evidence proving that the Challenged Laws were
justified by compelling interests, the Challenged Laws 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

58

in fact alleviate [claimed] harms in a direct and material way”). When “[t]he proffered
objectives are not pursued with respect to analogous non-religious conduct, and those interests
could be achieved by narrower ordinances that burdened religion 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., 438 F.3d at 210 (“Strict scrutiny is applied in order to
determine whether the harm stemming from a particular decision . . . is justified.”).
The Challenged Laws are not narrowly tailored because the Village Code already
provides several layers of regulation through which Defendants could limit the development of
the Subject Property. Before an educational institution can be built in the Village, the developer
must obtain a special permit from the Board of Trustees, see Village Code § 130-10(F), obtain
site plan approval from the Village Planning Board, see id., and go through the Village’s
architectural review process, see id. § 3-4(a) (“The [Board of Architectural Review] shall review
all applications for building permits for nonresidential construction . . . .”). All special permit
uses are subject to two standards: (1) those generally applicable to all special permit uses, and (2)
those specifically required for the special permit use at issue. Village Code § 130-28(E).
All special permit uses are subject to the conditions set forth in Village Code § 13028(E)(6). This provision permits the Board of Trustees to “attach all such additional conditions
and safeguards to any special permit as are, in its opinion, necessary to ensure initial and
continual conformance to all applicable standards and requirements,” including:
a) The location and size of the special permit use, nature and intensity of the
operations involved in it or conducted in connection with it, the size of the site
in relation to it and the location of the site with respect to streets giving access
to it are such that it will be in harmony with the appropriate and orderly
development of the area in which it is located.
b) The location, nature and height of buildings, walls and fences and the nature
and extent of existing or proposed plantings on the site are such that the special
59

permit use will not hinder or discourage the appropriate development and use
of adjacent land and buildings.
c) Operations in connection with any special permit use will not be more
objectionable to nearby properties by reason of noise, traffic, fumes, vibration
or other characteristics than would be the operations of permitted uses not
requiring a special permit.
Id. § 130-28(E)(6)(a)–(c). The special permit provisions applicable to educational institutions
allow the Board of Trustees to impose additional conditions on the issuance of a special permit,
including:
(9) The Board of Trustees may impose such restrictions and regulations which
would avoid or 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 and to otherwise implement the purpose and
intent of this chapter.
(10) The location and size of the use, the nature and intensity of operations involved
in or conducted in connection therewith, its site layout and its relation to access
streets shall be such that both pedestrian and vehicular traffic to and from the
use and the assembly of persons in connection therewith shall not be
hazardous.
(11) The location and height of buildings, the location, nature and height of walls
and fences and the nature and extent of landscaping on the site shall be such
that the use will not hinder or discourage the development and use of adjacent
land and buildings.
Id. § 130-10(F)(9)–(11). Defendants have not offered a credible explanation as to why these
provisions are incapable of restricting the development of the Subject Property in the way they
seek.26

Ulman testified that the Village “does not have the ability to control the size of an
educational institution through the special permit application process unless the zoning law has a
limitation (as the Village Local Laws do).” (Ulman Aff. ¶ 77.) This testimony is vague and
conclusory and belied by the code provisions discussed above. See Village Code § 13028(E)(6)(a) (authorizing the Board of Trustees to place restrictions on the “location and size” of
special permit uses).
26

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Moreover, during the site plan review process, the Planning Board has the “authority to
impose such reasonable conditions and restrictions as are directly related to and incidental to a
proposed site plan.” Id. § 119-3(B)(1). No site plan can be approved unless the Planning Board
finds that “the proposed activity and manner in which it is to be accomplished are in accordance
with the purpose and findings set forth in this chapter,” and that “the proposed activity and the
manner in which it is to be accomplished will not adversely affect the preservation and
protection of existing wetlands, water bodies, watercourses and floodplains.” Id. § 119-3(A)(1),
(3). The Planning Board must also “take into consideration the public health, safety and general
welfare and shall set appropriate conditions and safeguards which are in harmony with the
general purpose and intent of this chapter.” Id. § 119-5(D).
These Village Code provisions are not the only restriction on Plaintiffs’ development of
the Subject Property. An application to establish an educational institution in the Village also
would likely be subject to SEQRA, (see Trial Tr. 1242), which is “an overall environmental
review process,” (Defs.’ Ex. 2002 ¶ 97). SEQRA review can address environmental impacts on
wetlands and water pollution, plant life and wildlife, floodplains, stormwater, air quality, noise,
population concentration, distribution and growth, existing community character, and human
health impacts. (See Trial Tr. 1243–44; Beall Decl. ¶¶ 134, 140; Pls. Ex. 200.) Furthermore, as
alluded to above, 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, (see Ulman Aff. ¶ 68), and wetlands that qualify as “Waters of the United
States” are federally protected by the Clean Water Act, (Beall Decl. ¶ 89).
Plaintiffs do not dispute that they are subject to all of these regulations. During oral
argument, they went so far as to suggest one condition that Defendants may wish to consider:

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conditioning the issuance of a special permit on a requirement that only students and their
families live on Tartikov’s campus. This suggestion is significant because it directly addresses
Defendants’ concern that Plaintiffs are secretly planning to build a housing project for
Orthodox/Hasidic Jews. Defendants have not explained why this type of condition would not
resolve their concerns. Additionally, Defendants have not explained why only accredited
schools and traditional student-only dormitories are preferable to unaccredited schools and
nontraditional dormitories, or how they pose greater threats to the Village. Without this
information, the Challenged Laws do not survive strict scrutiny review.
2. RLUIPA’s Substantial Burden Provision
a. Jurisdiction
Plaintiffs assert that Defendants must be enjoined from enforcing the Challenged Laws
because the laws substantially burden their religious exercise in violation of RLUIPA.
Defendants contend that the Court is without jurisdiction to address this claim because Plaintiffs
have not established the applicability any of the jurisdictional prerequisites necessary to litigate a
substantial burden challenge. (See Defs.’ Mem. 27–29.) The substantial burden provision of
RLUIPA provides:
No government shall impose or implement a land use regulation in a manner that
imposes a substantial burden on the religious exercise of a person, including a
religious assembly or institution, unless the government demonstrates that
imposition of the burden on that person, assembly, or institution—
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. § 2000cc(a)(1). This provision
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
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institution, unless the government demonstrates that imposition of the burden . . .
is in furtherance of a compelling governmental interest; and . . . [the burden
imposed] is the least restrictive means of furthering that compelling governmental
interest.”
Westchester Day Sch. v. Village of Mamaroneck, 386 F.3d 183, 186 (2d Cir. 2004) (“WDS I”)
(alterations in original) (quoting 42 U.S.C. § 2000cc(a)(1)); see also Fortress Bible Church v.
Feiner, 694 F.3d 208, 218–19 (2d Cir. 2012) (“Fortress Bible II”). It serves to “backstop[] the
explicit prohibition of religious discrimination in [a] 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).
The protections afforded by the substantial burden provision are triggered only if one of
three conditions are met:
(A) the substantial burden is imposed in a program or activity that receives Federal
financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would
affect, commerce with foreign nations, among the several States, or with Indian
tribes, even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in the implementation of a land use regulation
or system of land use regulations, under which a government makes, or has in place
formal or informal procedures or practices that permit the government to make,
individualized assessments of the proposed uses for the property involved.
42 U.S.C. § 2000cc(a)(2). “To establish a claim, a plaintiff bears the burden of demonstrating
that at least one of these predicates applies . . . .” Chabad Lubavitch, 768 F.3d at 192.
Defendants argue that Plaintiffs have not satisfied any of these jurisdictional
prerequisites, devoting most of their attention to subsection (a)(2)(C). (See Defs.’ Mem. 28.)
That subsection requires that the substantial burden be “imposed in the implementation of a land
use regulation.” 42 U.S.C. § 2000cc(a)(2)(C) (emphasis added). “[T]his predicate is satisfied
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when the ‘government may take into account the particular details of an applicant’s proposed use
of land when deciding to permit or deny that use.’” Chabad Lubavitch, 768 F.3d at 193 (quoting
Guru Nanak Sikh Soc’y of Yuba City v. County of Sutter, 456 F.3d 978, 986 (9th Cir. 2006)). In
Guru Nanak, the Ninth Circuit explained:
By its own terms, it appears that RLUIPA does not apply directly to land use
regulations, such as the [z]oning [c]ode here, which typically are written in general
and neutral terms. However, when the [z]oning [c]ode is applied to grant or deny
a certain use to a particular parcel of land, that application is an ‘implementation’
under 42 U.S.C. § 2000cc[(a)](2)(C).
456 F.3d at 987 (emphasis added). Under this reading of subsection (a)(2)(C), Plaintiffs cannot
sustain a substantial burden challenge because the zoning laws have not been “applied to grant or
deny” Tartikov’s proposed use of the Subject Property. Id.
Plaintiffs mount no opposition to this interpretation of subsection (a)(2)(C). They instead
rely on subsection (a)(2)(B) to argue that the Court has jurisdiction to hear their substantial
burden claim. (See Pls.’ Post-Trial Mem. of Law (“Pls.’ Mem.”) 8 n.6 (Dkt. No. 329).) That
provision applies where “the substantial burden affects, or removal of that substantial burden
would affect, commerce . . . among the several states . . . .” 42 U.S.C. 2000cc(a)(2)(B).
Defendants argue that this provision is inapplicable here because “the effect, if any, of
[Tartikov’s] hypothetical proposal on commerce is speculative and incalculable.” (Defs.’ Mem.
28.)
The basis for Plaintiffs’ argument is that “commercial building construction is activity
affecting interstate commerce.” WDS II, 504 F.3d at 354. In Chabad Lubavitch, the Second
Circuit noted that the construction of a “17,000-square-foot addition” to a property “almost
certainly renders RLUIPA applicable under the interstate commerce predicate.” 768 F.3d at 192
n.6. Plaintiffs have not proffered any evidence about the square footage of the buildings

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necessary for their proposed college, but Tartikov seeks to build “classrooms, study halls,
courtrooms, a library, residences, . . . one or more shuls, and a facility to house a mikvah.”
(Tauber Decl. ¶ 61.) The square footage of these facilities is likely to total in the thousands. To
build these facilities, Tartikov intends to hire contractors and purchase all of the supplies
necessary for their construction. (See id. ¶ 84.) The Court has no reason to doubt that the
construction of these buildings constitutes “commercial building construction.” WDS II, 504
F.3d at 354. Accordingly, the Court has jurisdiction to hear Plaintiffs’ substantial burden claim.
Although not challenged by Defendants at this stage, as the Court has previously ruled on
this issue, see Tartikov II, 138 F. Supp. 3d at 385, the Court notes that while the Challenged
Laws have not been “imposed in the implementation” of a land use regulation, as that phrase is
used in subsection (a)(2)(C), the laws were “impose[d]” on Plaintiffs for purposes of subsection
(a)(1). The difference being that subsection (a)(1) does not require that the burden be imposed in
the implementation of a land use regulation; it requires that the burden be “impose[d] or
implement[ed].” See Elijah Grp., 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 discriminatory ordinance or ‘implementing,’ i.e., enforcing a
facially neutral ordinance in a discriminatory manner.”); Roman Catholic Diocese of Rockville
Centre v. Incorporated Village of Old Westbury, No. 09-CV-5195, 2012 WL 1392365, at *8
(E.D.N.Y. Apr. 23, 2012) (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”).

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b. Substantial Burden on Religious Exercise
To establish a substantial burden claim, Plaintiffs “bear[] the burden of demonstrating,”
Chabad Lubavitch, 768 F.3d at 192, that the “government . . . impose[d] . . . a land use
regulation” on the Subject Property “in a manner that imposes a substantial burden” on their
“religious exercise.” 42 U.S.C. § 2000cc(a)(1); see also id. § 2000cc-2(b) (“[T]he plaintiff shall
bear the burden of persuasion on whether the law (including a regulation) or government practice
that is challenged by the claim substantially burdens the plaintiff’s exercise of religion.”). “The
burden then shifts to the defendant to demonstrate that it acted in furtherance of a compelling
governmental interest and that its action is the least restrictive means of furthering that interest.”
Chabad Lubavitch, 768 F.3d at 192 (internal quotation marks omitted). The Parties have
stipulated that the Village and the mayor and trustees of the Village are a “government,” and that
the Challenged Law are “land use regulations.” (See Joint Pretrial Order Stipulations of Law
¶¶ 1–8.) The Court’s focus, then, is on whether Plaintiffs’ “religious exercise” has been
“substantial[ly] burden[ed].” 42 U.S.C. § 2000cc(a)(1).
i. Plaintiffs’ Religious Exercise & its Sincerity
RLUIPA “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, Inc. v. Village of Suffern, 664 F. Supp. 2d 267, 275, 288 (S.D.N.Y. 2009)

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(same). It is not for the Court to say that Plaintiffs’ “religious beliefs are mistaken or
insubstantial. Instead, [the Court’s] narrow function in this context is to determine whether the
line drawn reflects an honest conviction.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,
2779 (2014) (alteration and internal quotation marks omitted); see also Patrick v. LeFevre, 745
F.2d 153, 157 (2d Cir. 1984) (“Sincerity analysis seeks to determine an adherent’s good faith in
the expression of religious belief . . . [and] provides a rational means of differentiating between
those beliefs that are held as a matter of conscience and those that are animated by motives of
deception and fraud.”).
Upon the Subject Property, Tartikov intends to construct “classrooms, study halls,
courtrooms, a library, residences, . . . one or more shuls, and a facility to house a mikvah.”
(Tauber Decl. ¶ 61.) Tartikov does not seek to provide just any type of residences; rather, it
seeks to provide multi-family housing to accommodate the rabbinical students and their families.
Neither Defendants nor the Court question the sincerity of Plaintiffs’ beliefs as they relate to the
necessity for classrooms, study halls, courtrooms, a library, shuls, and a mikvah on the Subject
Property. Defendants do, however, challenge the sincerity of Plaintiffs desire to build multifamily housing. (See Defs.’ Mem. 30 (“The evidence demonstrates that the requirement of
multifamily housing on the campus of a rabbinical college is not a sincerely held religious
belief.”).)
The Students are each motivated by their religious beliefs to become full-time rabbinical
judges qualified in all four books of the Shulchan Aruch. (Pls.’ FOF ¶ 20 (citing Chaim
Rosenberg Decl. ¶¶ 14–18, 21; Meilech Menczer Decl. ¶¶ 18–19, 35, 51–52; Jacob Hershkowitz
Decl. ¶¶ 48, 49, 57, 92, 100).) They further believe that the Torah commands them to study the
Torah day and night. (See Pls.’ FOF ¶ 27; Chaim Rosenberg Decl. ¶ 14; M. Babad Decl. ¶¶ 14–

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17; Jacob Hershkowitz Decl. ¶¶ 18–20; Meilech Menczer Decl. ¶¶ 14–15; Resnicoff Decl. ¶ 30–
31, 33–38.) Any unjustified detraction from Torah study is a sin, known as bitul Torah.
(Meilech Menczer Decl. ¶ 15.) To avoid bitul Torah, Tartikov wants to build a Torah
community—a community that exists nowhere else in the United States, (see Pls.’ FOF ¶ 51), the
purpose of which is to isolate the students from the distractions of the outside world, permitting
them to devote themselves to the study of Jewish law, (see Pls.’ FOF ¶ 69; Resnicoff Decl.
¶¶ 68–70). Living in such a community facilitates the learning experience because the students
live among their fellow students and teachers. (See Tauber Decl. ¶ 25.) The desire to create this
type of community is grounded in religious texts that, for example, direct Jews to “[e]xile
yourself to a place of Torah.” (Resnicoff Decl. ¶ 70 (internal quotation marks omitted).) A
second motivation for Plaintiffs’ desire for on-campus housing is that they believe the rabbinical
college would otherwise be unsuccessful in training judges versed in the four books of the
Shulchan Aruch. (See Tauber Decl. ¶ 56 (“[O]ur prior experiences have confirmed that the effort
that we plan to undertake cannot succeed if students are not living together with like-minded
students and their families.”).) Tauber explained that over the past 30 years students at two other
kollels in the area have not been successful in finishing all four books. (See Trial Tr. 69.)
Tartikov believes that the only way to fix this problem is to create a Torah community. (See id.
at 69–70.)
By themselves, these religious beliefs would justify the existence of student housing on
the Subject Property. The necessity for family housing is explained by other of Plaintiffs’
beliefs. Jewish law requires men to live with their families. (See Chaim Rosenberg Decl. ¶ 55
(“According to my religious beliefs, I must live with my family.”); Jacob Hershkowitz Decl.
¶ 86(n) (“Jews are obligated to live with [their] family.”); Meilech Menczer Decl. ¶ 38(n)

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(same).) Jewish men are also required to marry at a young age, have large families, and teach
their children the Torah. (See Trial Tr. 197; Pls.’ FOF ¶¶ 24–25.) Thus:
Only by [students] being able to live in a Torah Community, a Bais Din community
where they live together with their families on-site where the entire community
who lives there together are immersed 24/7 into the Torah studies all of them
together with their rabbis, with their mentors, where they are always there together
studying, all of them learning the same Shulchan Aruch, all together, full-time,
they’re fully supported by their families, by their wives, their children, being all
together they’re not distracted, they’re not in any way falling, dropping out because
the circumstances of the family does not allow it, therefore, by them—in addition
to the religious beliefs, where it’s so many times mentioned in our text in the Torah,
the importance of living in the Torah Community, in addition to that, those who
don’t live in a Torah Community cannot immerse themselves 24/7 into the Torah
studies and they’re losing out time because of that which those who don’t live there
and don’t live that kind of a lifestyle do not fulfill their full religious beliefs, they
cannot, they don’t have the ability sometimes. If they can’t, they can’t. Our goal
is, and we strongly believe that this is the only way, not only for them to be able to
fulfill their religious beliefs, but this is the only way it’s going to get them to
accomplish what we’re looking for them to accomplish. To be able to stay on for
15, 16 [years], sometimes more as needed to complete everything and to be able to
become certified judges.
(Trial Tr. 69–70.) As a matter of religious faith, the Students are motivated to live in this type of
community. (See Chaim Rosenberg Decl. ¶ 54 (“My religious beliefs motivate me to be part of
such a Torah community.”); Jacob Hershkowitz Decl. ¶ 49 (“To become a rabbinical judge, I
must participate in a program that teaches Shulchan Aruch, and do so in a community of likeminded students and teachers, what we refer to as a Torah community.”); Meilech Menczer Decl.
¶ 46 (“My religious beliefs motivate me to become part of this Torah Community’s living,
learning, and worshipping environment as proposed by the Congregation Rabbinical College of
Tartikov.”).)
Defendants argue that having family housing on a rabbinical college campus is not a
religious belief, citing testimony offered by the Students and Tauber. (See Defs.’ Mem. 30–32.)
For example, Jacob Hershkowitz and Chaim Rosenberg testified that traveling from off-campus

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housing to campus is not bitul Torah. (See Trial Tr. 167 (Chaim Rosenberg affirming that “the
time [he] spend[s] going back and forth to the kollel is justifiable time”); id. at 235–36 (Jacob
Hershkowitz affirming that he is “not committing a sin when [he] travel[s] to and from the
kollel”).) Chaim Rosenberg also testified that someone building a kollel without on-campus
housing would get “rewarded” for building the kollel because “[n]ot everybody has the means.”
(Id. at 168.) Furthermore, Tauber testified that he does not believe that “Tartikov students are
religiously obligated to live in multifamily housing,” (id. at 128), and Meilech Menczer stated
that his religion does not require him to live in multi-family housing because “there’s no
requirement how housing should be,” (id. at 278).
The Court sees two problems with Defendants’ argument. First, it is based on a
misstatement of Tartikov’s proposal. Defendants are fixated on the provision of student family
housing, but completely ignore the other aspects of Tartikov’s plan. It is not simply to build
multi-family housing within the Village for Orthodox/Hasidic Jews, it is to build on-campus
housing for rabbinical students and their families in a manner consistent with Jewish law and the
Students’ beliefs. The purpose of the housing is to facilitate religious exercise, bringing it within
RLUIPA’s protections. See 42 U.S.C. § 2000cc-5(7)(B) (“The use, building, or conversion of
real property for the purpose of religious exercise shall be considered to be religious exercise of
the person or entity that uses or intends to use the property for that purpose.”); see also Fifth Ave.
Presbyterian Church v. City of New York, 293 F.3d 570, 574–75 (2d Cir. 2002) (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, 2013) (noting that there
was sufficient evidence at the summary judgment phase to create a dispute of fact as to whether
the residential component of a religious ministry for substance abuse was part of the plaintiff’s

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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] implicate[s] their religious exercise”); Mintz v. Roman
Catholic Bishop of Springfield, 424 F. Supp. 2d 309, 319 (D. Mass. 2006) (holding that a
church’s proposed development of a “parish center” that would “house an office for religious
education[,] and . . . serve as a meeting place for the parish council . . . [and as] the locus of
small gatherings related to church services” constituted “religious exercise” under RLUIPA).
Second, the testimony upon which Defendants rely is of little value. Focusing on
whether it is bitul Torah to travel from off-campus housing to campus ignores all of the other
aspects of Tartikov’s proposed Torah community. Tartikov is not seeking to create on-campus
housing to cut down on travel time, but rather to create a particular type of living and learning
community—one that is free from the distractions of the outside world and permits students to
focus on studying to Torah day and night, while surrounded by like-minded individuals. (See
Pls.’ FOF ¶¶ 27, 69; Tauber Decl. ¶ 25.) Tauber’s and Meilech Menczer’s testimony that
Tartikov’s students are not religiously required to live in “multifamily housing” is similarly of
little value. (See Trial Tr. 128, 278.) Defendants place too much reliance on it because the Court
understands this testimony to mean exactly what the witnesses stated—there is no religious
obligation to live in “multifamily housing.” Plaintiffs, however, have professed a sincere
religious belief based on religious doctrine to live on campus with their families, whether that

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housing be “multifamily” or otherwise. Meilech Menczer summed it up best: “there’s no
requirement how housing should be.” (Id. at 278.)27
Defendants also cite the actions of Students to cast doubt upon the sincerity of their
beliefs. (See Defs.’ Mem. 32.) The Students are all currently enrolled at Kollel Belz, which does
not provide on-campus housing. (See Trial Tr. 165, 167, 228, 234, 266.) The implication of this
testimony is that the Students do not sincerely believe that on-campus housing is necessary
because they do not currently live on-campus or in a Torah community. The Court does not see
it this way. The Students are studying the Torah at Kollel Belz because they have no other
option. They cannot study in a Torah community because no such community exists within the
United States. (See Pls.’ FOF ¶ 51.) Defendants also focus on the fact that three of Tartikov’s
trustees were able to study all four books of the Shulchan Aruch without living in on-campus
family housing, (see Trial Tr. 98), and that Tauber admitted that “if someone wishes to or he has
the will and he can pull through the whole program, he can get the studies done,” (id. at 93; see
also id. at 273 (Meilech Menczer stating that “in order to become a rabbinical judge, there’s no
requirement the way you have to study”).) This testimony reveals that there may be other ways
to become conversant in the Shulchan Aruch, but does not discredit the Students’ beliefs that
they “have to live in a Torah community in order to study, to succeed in the studies to become a
rabbinical judge.” (Trial Tr. 273.) The effectiveness of these alternative avenues also is in
serious doubt because over the past 30 years, students studying at the kollel at which the three
Tartikov trustees studied have not successfully completed all four books of the Shulchan Aruch.

The Court notes that this interpretation of the Students’ and Tauber’s testimony is
supported by the fact that during trial it was evident that English is not their first language.
When these witnesses said that multi-family housing was not required, they were not saying that
they are not required to live with their families on campus.
27

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(Trial Tr. 69; see also id. 439 (“[T]he[] other programs in America are not designed . . . to create
people who really know Jewish law.”).) Plaintiffs blame that failure on the absence of a Torah
community, the purpose of which is to facilitate the learning environment. (See id. at 439
(“[T]he reason why the[] [students] have to live together with them, the other students, and with
the teachers, is because they learn from the other students and they really learn from the
teachers.”).)
Accordingly, the Court concludes that Plaintiffs’ religious beliefs regarding the Torah
community are sincere.
ii. The Burden Imposed by the Challenged Laws
RLUIPA does not itself define the phrase “substantial burden,” but 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 348–49. “The burden must have more than a minimal impact on religious exercise, and
there must be a close nexus between the two.” Fortress Bible II, 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 County, 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 Christian Coll. v. City of Morgan Hill, 360 F.3d 1024,
1035 (9th Cir. 2004) (holding that a city’s requirement that the plaintiff refile a “complete ”

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permit application did not constitute a substantial burden (emphasis omitted)); 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 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); 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
scrutiny. Rather, RLUIPA protects religious institutions from land use regulations that

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substantially affect their ability to use their property in the sincere exercise of their religion. See
Fortress Bible II, 694 F.3d at 218 (“[T]o hold that RLUIPA is inapplicable to what amounts to
zoning actions taken in the context of a statutorily mandated environmental quality review would
allow towns to insulate zoning decisions from RLUIPA review. . . . [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 can contravene RLUIPA. See, e.g., Guru Nanak,
456 F.3d at 992 (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,
2012 WL 1392365, at *8 (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 [p]roperty for religious burial purposes”). 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, also may impose a substantial burden. See
Cathedral Church of the Intercessor v. Inc. Village of Malverne, No. 02-CV-2989, 2006 WL
572855, at *8 (E.D.N.Y. Mar. 6, 2006) (finding that the plaintiff adequately alleged a 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 likewise have found a substantial burden where municipal zoning schemes impose
significant “delay, uncertainty, and expense.” Sts. Constantine & Helen, 396 F.3d at 901; see

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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 (internal quotation marks omitted)); Grace Church of N. Cty. v. City of San Diego, 555 F.
Supp. 2d 1126, 1137–39 (S.D. Cal. 2008) (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
the plaintiff’s land use applications). In one recent case, the Second Circuit 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 II, 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 on religious exercise.” Cathedral
Church, 2006 WL 572855, at *8; see also Sts. Constantine & Helen, 396 F.3d at 899–901
(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. Village of
Mamaroneck, 379 F. Supp. 2d 550, 556–57 (S.D.N.Y. 2005) (same).
The Second Circuit has not provided an exhaustive list of factors to be considered in
determining whether a substantial burden has been imposed. Relevant considerations, however,
include “whether the law is neutral and generally applicable,” the arbitrary and unlawful nature
of defendant’s conduct, “whether feasible alternatives exist[] for [the plaintiff] to exercise its
faith,” and whether the plaintiff “reasonably believed” it would be able to undertake its proposal

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“when it purchased the property.” See Chabad Lubavitch, 768 F.3d at 195–96; see also Roman
Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 96–97 (1st Cir. 2013) (listing
factors courts have considered relevant when determining whether a land use restriction imposes
a substantial burden).
Taken together, the Challenged Laws substantially burden Plaintiffs’ religious exercise in
several ways. The Accreditation Law prevents Tartikov from building a rabbinical college
within the Village because only accredited educational institutions are eligible for special use
permits, see Village Code § 130-4, and Tartikov cannot be accredited by any accrediting body,
(see Trial Tr. 446–51; Kinser Decl. ¶¶ 29, 41; Pls.’ Ex. 2.) Defendants argue that this issue is
easily fixable and therefore does not present a substantial burden. (See Defs.’ Mem. 39–42.) In
some respects, this argument is appealing. Tartikov could make some changes that put it on the
road to accreditation. (See Trial Tr. 453–57.) For example, Tartikov was informed that it cannot
be accredited by the Association of Advanced Rabbinical and Talmudic Schools because its
proposed curriculum is not broad enough and it would need to offer an admissions test. (See
Pls.’ Ex. 2.) Likewise, Tartikov cannot be accredited by the Board of Regents because it does
not plan to award a degree recognized by that body. (See Kinser Decl. ¶ 29.) Plaintiffs have not
explained why Tartikov cannot offer an admissions test or what burden Tartikov would suffer if
it had to change its curriculum to offer a wider array of programs. Indeed, Plaintiffs have taken
the questionable position that they do not have to make any changes to their rabbinical program,
no matter how insubstantial the burden. (See Trial Tr. 116 (“There was no discussion about
changing the curriculum, our curriculum is what it is, and were are not going to change the
purpose of our curriculum of certifying the judges for the four volumes of the Shulchan Aruch to
be accredited . . . .”).) This cannot be the case, as RLUIPA requires that Plaintiffs demonstrate a

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substantial burden; Tartikov cannot hide behind RLUIPA to avoid making insubstantial changes.
At the very least, offering an admissions test appears to represent an insubstantial change, as
Plaintiffs have not provided a religious basis for Tartikov’s decision to admit students without
any such examination.
Defendants’ argument, however, suffers from a fatal flaw. Tartikov must be operational
before it can be accredited, but Tartikov cannot become operational until it obtains a special use
permit, which requires accreditation. (See Trial Tr. 452.) Therefore, even if Tartikov changed
its curriculum and instituted an admissions test, it cannot be accredited. Defendants contend that
Plaintiffs could seek provisional accreditation to overcome this problem, explaining that the
American Bar Association regularly grants provisional accreditation to law schools, (Defs.’
Mem. 41 & n.41), but there is no evidence that Plaintiffs can pursue that avenue here. Indeed,
Defendants offer no proof that Plaintiffs could seek provisional accreditation from the Board of
Regents, the Association of Advanced Rabbinical and Talmudic Schools, or any other body that
accredits rabbinical colleges. Accordingly, the Court concludes that the Accreditation Law
imposes a substantial burden of Plaintiffs’ religious exercise. This holding is significant because
it does not require the Court to examine any of the peculiarities of Tartikov’s proposal, i.e., the
creation of a Torah community. Indeed, Defendants argue repeatedly that the issue in this case
“is whether Plaintiffs have demonstrated that the [Challenged] Laws impose a substantial burden
on their wish to build a rabbinical college in Pomona.” (Defs.’ Mem. 44.) Thus, even under
Defendants’ understanding of the issues presented in the case, Plaintiffs have demonstrated a
substantial burden because they cannot build a rabbinical college on any parcel of land within the
Village.

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The Dormitory Law similarly presents a substantial burden on Plaintiffs’ use of the
Subject Property, because the law prohibits dormitories from occupying more than 20% of the
total square footage of all of the educational institution’s buildings and prohibits the
development of “multi-family dwelling units” with separate “cooking, dining or housekeeping
facilities.” Village Code §§ 130-4, 130-10(F)(12). Defendants contend that the 20% square
footage limitation on dormitories does not represent a substantial burden because Plaintiffs need
only increase the size of the academic buildings on the campus to increase the capacity of the
dormitory building. (See Defs.’ Mem. 36–37.) Plaintiffs concede that the 20% restriction does
not represent a total prohibition of their proposed use, as Plaintiffs could construct a dormitory
building, but argue that the limitation renders their use effectively impracticable. (Pls.’ Mem.
16.) The Court agrees with Plaintiffs; this size limitation places a substantial burden on
Plaintiffs’ religious exercise because it prevents them from building a Torah community. See
Cathedral Church, 2006 WL 572855, at *8 (“[A] complete denial . . . is not necessary for the
Court to find that the government regulation . . . impose[s] a substantial burden on religious
exercise.”). As discussed above in the context of Plaintiffs’ equal protection claim, Plaintiffs
would have to build academic buildings totaling 100,000 square feet to house roughly 30
students.28 However, Plaintiffs do not seek to build 100,000 square feet of academic buildings
because academic buildings for small colleges typically cover no more than 30,000 to 45,000

28

In their Post-Trial Proposed Findings of Fact, Plaintiffs state that the Challenged Laws
restrict the number of students that could be housed at Tartikov’s rabbinical college to
approximately 6 to 8 students. (See Pls.’ FOF ¶ 396.) This assertion finds no support in the
record. The 20% housing space restriction is tied to the size of the other buildings on the
property. No evidence was offered about the size of the other buildings that are going to be built
upon the Subject Property.
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square feet. (Pls.’ Ex. 1505 ( ¶ 45.) Thus, the Dormitory Law needlessly requires Tartikov to
construct academic buildings far in excess of its need to achieve its intended purpose.
Defendants argue that the prohibition on multi-family housing does not place a
substantial burden on Plaintiffs’ religious exercise because Plaintiffs have “feasible alternatives”
available to them. (Defs.’s Mem. 38 (quoting Chabad Lubavitch, 768 F.3d at 196).) During
trial, Tauber testified that a “subagent” of Tartikov, Pomona 306 LLC, was formed to purchase
other property in the Village, including 30 acres of property abutting the Subject Property upon
which 14 single family homes are built. (See Trial Tr. 128.) Tauber also testified that Tartikov
currently has 10 prospective students. (See id. at 79.) Defendants argue that these 10 students
could live in the single family residences owned by Pomona 306 LLC and thus Tartikov has all
of the housing it presently needs. (See Defs.’ Mem. 38.)29 The Court does not consider this
arrangement to be feasible. Although Tartikov presently has 10 students, it is burdensome to
limit Tartikov’s student body to 14.30 Defendants’ argument is also premised on its belief that
the Dormitory Law is otherwise valid. As discussed above, and as will be discussed in further
detail below, the Dormitory Law represents a substantial burden because of its discriminatory

29

Defendants also argue that Tartikov could subdivide the Subject Property and build
single family residences to house the students. (See Defs.’ Mem. 38.) The problem with this
argument is that it would not result in the quantity of homes that Defendants imply because even
though the Subject Property is approximately 100 acres, Tartikov needs at least 10 acres to
comply with the minimum lot area requirements for educational institutions, see Village Code
§ 130-10(F)(1)(a), and would additionally have to subtract the area for wetlands, steep slopes,
and utility easements, see id. § 118-25(C).
The Court assumes that Defendants’ response to this argument would be that Plaintiffs
could continue buying property in the Village as needed. The Court concludes that this
arrangement is not a feasible alternative. Tartikov owns sufficient land upon which it can build
the on-campus housing it seeks. Defendants’ passage of laws designed to target multi-family
housing for Orthodox/Hasidic Jews imposes a substantial burden on Plaintiffs religious exercise.
But for this burden, Plaintiffs could apply for a permit to build what they seek without the need
to buy yet more property.
30

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purpose. See Chabad Lubavitch, 768 F.3d at 195 (noting that the Second Circuit considers many
factors in determining whether a challenged action imposes a substantial burden, including “the
‘arbitrary and unlawful nature’ of [the] defendant’s conduct” (quoting WDS II, 504 F.3d at 352)).
Along these same lines, Defendants argue that the prohibition on multi-family housing
does not impose a burden of Tartikov’s proposed rabbinical college because Plaintiffs’ do not
need a Torah community on campus to have a successful rabbinical college. (See Defs.’ Mem.
42–43.) In WDS II, the Second Circuit “expressed doubt as to whether RLUIPA immunize[s] all
conceivable improvements by religious schools.” 504 F.3d at 347. To receive protection from
RLUIPA “religious schools need to demonstrate more than that the proposed improvement
would enhance the overall experience of its students.” Id. The Second Circuit cited gymnasiums
used “exclusively for sporting activities” and a headmaster’s residence as examples of
improvements that may fall outside of RLUIPA’s protections. Id. Thus, Tartikov must show
that on-campus housing will be “used at least in part for religious education and practice.” Id. at
348.
Defendants argue that Plaintiffs cannot meet this standard, citing the aforementioned
testimony of certain witnesses explaining and highlighting the differences between Tartikov’s
rabbinical college and a Torah community. Also, Chaim Rosenberg testified that “[t]here’s no
requirement to—in order to become a rabbinical judge, there’s no requirement the way you have
to study.” (Trial Tr. 273.) Mordechai Babad, Tartikov’s proposed dean, described a Torah
community as the “ideal” learning environment, but he was able to become a qualified rabbinical
judge without living in such a community. (Id. at 213–14.) Tauber testified that living in a
Torah community “has nothing to do with . . . Tartikov about the judges.” (See id. at 95.) The
Students also testified that they cannot study the Torah at home by themselves. (See id. at 184

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(Chaim Rosenberg affirming that he cannot “study to become a rabbinical judge at home”); id. at
244 (Jacob Hershkowitz stating that he cannot study at home “without . . . students and
teachers”); id. at 285 (Meilech Menczer explaining that the study of Torah “usually takes place
with a study partner”).) Defendants take this testimony to mean that Tartikov can build a
rabbinical college without a Torah community.
While rabbinical colleges can and do exist without on-campus housing, Defendants’
argument ignores the sincere religious purpose that the Torah community will serve here.
Tartikov’s students will not study at home by themselves because that is not how
Orthodox/Hasidic Jews study the Torah. Meilech Menczer explained that the study of the Torah
is usually done in study groups where “everybody has a partner.” (Id. at 286.) The study of the
Torah also “depends heavily on immersing oneself in a community of Torah scholars.”
(Resnicoff Decl. ¶ 75.) The provision of on-campus housing is a means to serve these ends.
And while Tartikov’s students are not required to study the Torah in any particular way, they
sincerely believe that they have to live in a Torah community to “succeed in the study to become
a rabbinical judge.” (Trial Tr. 274.) Accordingly, Plaintiffs have made the connection between
their religious exercise and the provision of on-campus housing and have demonstrated that the
Dormitory Law substantially burdens that religious exercise by banning student family housing
outright.
With respect to the Wetlands Law, the 100-foot buffer prohibits Tartikov from building a
driveway onto the campus because the location in which the driveway must be located falls
within 100 feet of regulated wetlands. (See Trial Tr. 1018; Beall Decl. ¶ 250.) This law would
not be problematic if Tartikov’s rabbinical college could be built elsewhere in the Village, but
the Subject Property is the only vacant, non-government owned parcel large enough to satisfy the

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minimum net lot requirement of 10 acres for educational institutions. (See Trial Tr. 310.)
Defendants, ignoring the problem with the driveway, argue that Plaintiffs can build a rabbinical
college on the Subject Property without running afoul of the Wetlands Law. (See Defs.’ Mem.
37.) This argument is beside the point, as it is undisputed that a rabbinical college could be built
upon the Subject Property but for the need for a new driveway. (See Trial Tr. 1012 (Beall
testifying that the rabbinical college “would have no impacts on the wetlands but for the access
drive”)).
Defendants’ second argument is stronger. They contend that any burden on Plaintiffs’
religious exercise existed before the passage of the Wetlands Law because the wetlands on the
Subject Property were already regulated by federal and state law. (See Defs.’ Mem. 37; see also
Trial Tr. 981 (Beall testifying that 99% of the Village’s wetlands are regulated by state and local
law).) The problem, however, is that the standard for receiving a permit under the Wetlands Law
is much more stringent than under federal and state law. A permit applicant under the Wetlands
Law must show that the law “results in a deprivation of the reasonable use of a property so as to
constitute a de facto taking.” Village Code § 126-5. The “taking” requirement does not exist
under federal or state law. See 40 C.F.R. § 230.10 (setting forth the standard for the issuance of
a permit under § 404 of the Clean Water Act as precluding permit “if there is a practicable
alternative to the proposed discharge which would have less adverse impact on the aquatic
discharge, so long as the alternative does not have other significant adverse environmental
consequences”); N.Y. Comp. Codes R. & Regs. tit. 6, § 665.7 (2017) (setting standards for
permit issuance, including “weighing of need against benefits”). (See also Beall Decl. ¶¶ 60
(describing NYSDEC regulations covering wetland areas in the Village), 123 (“The Village’s
standard is unlike any other standard I have reviewed in other wetlands regulation in New York

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State.”).) It is undisputed that Tartikov cannot establish that “the Challenged Laws have
deprived it of economically reasonable use or value of the Subject Property, as it may be
developed with single family residences.” (Joint Pretrial Order Stipulations of Law ¶ 18.)
Accordingly, the Court concludes that the Wetlands Law imposes a substantial burden on
Plaintiffs’ religious exercise.
Defendants offer one other alternative means of alleviating these burdens, arguing that
Plaintiffs could seek a text amendment or a zone change, but have done neither. (See Defs.’
Mem. 41.) Before addressing the merits of this argument, one clarification is necessary. Text
amendments and zone changes are the same thing. A zone change requires an amendment to the
zoning law. (See Trial Tr. 786.) Therefore, no matter what Defendants want to call the process,
Defendants contend that Plaintiffs cannot succeed on a substantial burden claim until they
request an amendment to the Village Code.
Turning to the merits, the Board of Trustees is the body responsible for determining
whether to amend the zoning laws and the Board is not required to consider a petition for a text
amendment. (See Trial Tr. 783.) The amendment process thus leaves Plaintiffs at the mercy of
the same body that has a now-proven history of discriminating against them. This history
demonstrates that a zoning amendment does not represent a feasible solution. See Grace
Church, 555 F. Supp. 2d at 1138 (granting summary judgment to the plaintiff based on evidence
that the plaintiff had “no reasonable expectation that any application for an extension” to use its
property would be granted).
The discriminatory nature of the Challenged Laws bolsters Plaintiffs’ substantial burden
claim. See Fortress Bible II, 694 F.3d at 219 (“[W]hen the town’s actions are arbitrary,
capricious, unlawful, or taken in bad faith, a substantial burden may be imposed because it

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appears that the applicant may have been discriminated against on the basis of its status as a
religious institution.”); WDS II, 504 F.3d at 350 (“The arbitrary application of laws to religious
organizations may reflect bias or discrimination against religion.”); id. at 351 (“Where the
arbitrary, capricious, or unlawful nature of a defendant’s challenged action suggests that a
religious institution received less than even-handed treatment, the application of RLUIPA’s
substantial burden provision usefully backstops the explicit prohibition of religious
discrimination in the later section of the Act.” (internal quotation marks omitted)); see also Sts.
Constantine & Helen, 396 F.3d at 900 (“If 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 a particular sect, influenced the decision.”). As discussed
above, Defendants have failed to offer a credible justification for the Challenged Laws,
suggesting that their only purpose was to single out Tartikov and other Orthodox/Hasidic land
uses.
There is one consideration, however, that weighs against finding that all of the
Challenged Laws impose a substantial burden. The Second Circuit has instructed district courts
to consider whether a plaintiff “reasonably believed it would be permitted to undertake its
proposed modifications when it purchased the [relevant] property.” Chabad Lubavitch, 768 F.3d
at 196. Plaintiffs proffer an interesting interpretation of what restrictions were in place prior to
Tartikov’s purchase of the Subject Property. (See Pls.’ Mem. 17–18.) They argue that only
certain building coverage and floor area restrictions were in place, but that otherwise, Tartikov’s
proposed use would have been permitted prior to the adoption of Local Law No. 5 of 2004,
which is the first law that placed restrictions on dormitories. (See id.; Local Law No. 5 of 2004.)
Plaintiffs’ understanding of the restrictions in place prior to its purchase of the Subject Property

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in August 2004 is incorrect. Educational institutions have been subject to an accreditation
requirement since at least 2001. Local Law No. 1 of 2001 mandated that all educational
institutions be “duly licensed by the State of New York.” (Local Law No. 1 of 2001 § 2.)31 The
accreditation requirement was amended after Tartikov purchased the property, but the
amendment broadened the number of accrediting bodies from which Tartikov could seek
accreditation, arguably lessening the burden imposed by the original requirement. See Local
Law No. 5 of 2004 § 1 (requiring that educational institutions be “accredited by the New York
State Education Department or similar recognized accrediting agency”). During trial, Tauber
admitted that he was not aware “that educational institutions had to be duly licensed by New
York State” until after he purchased the property and that he has never spoken to a New York
State official about accreditation. (Trial Tr. 112–13.) Moreover, even if the accreditation
requirement was imposed in 2004 shortly after Tartikov purchased the property, there is no
evidence that Tartikov, or anyone associated with Tartikov, examined the accreditation
requirements until January 2007, when Tauber met with a representative from the Association of
Advanced Rabbinical and Talmudic Schools. (See Pls.’ Ex. 2.) Therefore, Tartikov’s supposed
belief in 2004 that it could build an unaccredited rabbinical college within the Village should not
have been free of doubt. Even setting aside the accreditation requirement, there is no evidence
about what Tauber and Tartikov reasonably believed could be built on the Subject Property
because no one examined the zoning restrictions placed on the Subject Property until after
Tartikov purchased the land. (See Trial Tr. 104–08.)

31

The Court reiterates that Local Law No. 1. of 2001 was adopted after town officials
learned about YSV’s plans to build a school. (See Pls.’ Exs. 111, 130 (FPC memoranda
regarding updates to the Village Code in light of YSV’s proposal).)
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In the absence of other evidence, this deficiency may have been fatal. See Petra
Presbyterian Church v. Village of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007) (“Having
decided to go ahead and purchase the property outright after it knew that the permit would be
denied, [the plaintiff] assumed the risk of having to sell the property and find an alternative site
for its church should the denial be upheld . . . just like any other religious organization that
wanted to build in the industrial zone.”). However, all of the Challenged Laws were passed for a
discriminatory purpose and they bar completely Tartikov’s rabbinical college from the Village.
See id. (“Any such organization would have to show that a paucity of other land available for
churches made the exclusion from the industrial zone a substantial burden to it.”); Bethel World
Outreach Ministries v. Montgomery Cty. Council, 706 F.3d 548, 558 (4th Cir. 2013) (“[W]e find
it significant that the County has completely prevented [the plaintiff] from building any church
on its property, rather than simply imposing limitations on a new building.”). Therefore, the
Court concludes that Plaintiffs have carried their burden of showing that the Challenged Laws
substantially burden their religious exercise.
iii. Compelling Governmental Interest & Least Restrictive Means
Plaintiffs having carried their burden, Defendants must demonstrate that the Challenged
Laws were adopted “in furtherance of a compelling governmental interest” and that they were
“the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C.
§ 2000cc(a)(1)(A)–(B); see also Chabad Lubavitch, 768 F.3d at 192 (same). For the same
reasons discussed above in the context of Plaintiffs’ equal protection claim, Defendants have
failed to carry their burden. Defendants have proffered no compelling governmental interest
justifying the Challenged Laws. Even more fundamentally, Defendants have not proffered a
credible justification for their passage. Had Defendants shown a compelling governmental

87

interest, their defense nonetheless would have failed because the Challenged Laws are not the
least restrictive means of achieving their desired goals. Defendants are able to limit the size and
scope of Plaintiffs’ use through other provisions in the Village Code. Before Plaintiffs can build
any rabbinical college, they must obtain a special permit from the Board of Trustees, see Village
Code § 130-10(F), obtain site plan approval from the Village Planning Board, see id., and go
through the Village’s architectural review process, see id. § 3-4(a). Defendants have not credibly
explained why these processes are inadequate to protect any interests that they seek to protect.
Accordingly, the Court concludes that Plaintiffs have proven a violation of RLUIPA’s
substantial burden provision.
3. Free Exercise
Plaintiffs contend that the Challenged Laws burden the free exercise of their religion.
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 Household 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., 565 U.S. 171, 181 (2012) (“The First Amendment provides, in part, that Congress
shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof.” (internal quotation marks omitted)). “Because the free exercise of religion means, first
and foremost, the right to believe and profess whatever religious doctrine one desires, courts are
not permitted to inquire into the centrality of a professed belief to the adherent’s religion or to
question its validity in determining whether a religious practice exists.” Fifth Ave. Presbyterian
Church, 293 F.3d at 574 (alteration and internal quotation marks omitted). “An individual
claiming violation of free exercise rights need only demonstrate that the beliefs professed are

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sincerely held and in the individual’s own scheme of things, religious.” Id. (internal quotation
marks omitted).
“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; see also Trinity Lutheran Church,
137 S. Ct. at 2019 (“The Free Exercise Clause protects religious observers against unequal
treatment and subjects to the strictest scrutiny laws that target the religious for special disabilities
based on their religious status.” (alteration and internal quotation marks omitted)). 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, 293 F.3d at
574; 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, 42 U.S.C. § 2000bb et seq., as recognized by Holt v.
Hobbs, 135 S. Ct. 853, 859 (2015). 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 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. A
plaintiff alleging such a “religious gerrymandering” claim, “must be able to show the absence of
a neutral, secular basis for the lines [the] government has drawn.” Commack Self-Serv., 680 F.3d
at 211 (emphasis and internal quotation marks omitted).

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“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,” id. (internal quotation marks omitted), and “covert suppression of particular religious
beliefs,” Bowen v. Roy, 476 U.S. 693, 703 (1986); 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 “both 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 [of the basis for a law] 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 members of the decisionmaking body.”
Id. Another measure of a 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. Village 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 practices because of their religious motivation,
the law is not neutral.” Lukumi, 508 U.S. at 533.

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As the Court has previously held, each of the Challenged Laws is facially neutral.
Tartikov I, 915 F. Supp. 2d at 621; see also id. at 615 (“[T]he challenged ordinances are facially
neutral with respect to religion (and race).”). Therefore, absent evidence of discriminatory
intent, only intermediate scrutiny would apply. See 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 New York, 435 F.3d 78, 98 (2d Cir.
2006) (“Regulations that . . . are . . . content-neutral . . . trigger intermediate, rather than strict,
scrutiny.”); Hobbs v. County 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.”). Also, the Parties agree that to succeed on this claim
Plaintiffs must show that their religious beliefs are sincerely held, that the Challenged Laws
burden Plaintiffs’ religious practice, and that the Challenged Laws were enacted to infringe upon
or restrict religious practices because of their religious motivation. (See Pls.’ Mem. 23; Defs.’
Mem. 45.)32
Plaintiffs have satisfied each of the elements necessary to mandate strict scrutiny review.
First, the Court has already explained the underpinnings of Plaintiffs’ religious beliefs and
concluded that those beliefs are sincerely held. Second, as the Court discussed in relation to
Plaintiffs’ RLUIPA substantial burden claim, the burden imposed by the Challenged Laws is
substantial. Finally, drawing “guidance” from the discussion regarding Plaintiffs’ equal

32

The Parties disagree on the extent to which the Challenged Laws must burden
Plaintiffs’ religious exercise. Defendants argue that the burden must be “substantial.” (Defs.’
Mem. 45.) Plaintiffs, on the other hand, argue that any burden is sufficient. (See Pls.’ Proposed
Conclusions of Law (“Pls.’ COL”) ¶ 16 (Dkt. No. 328).) The Court need not resolve this dispute
because, as discussed above, the Challenged Laws impose a substantial burden of Plaintiffs’
religious exercise.
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protection claim, Lukumi, 508 U.S. at 540, the Court holds that the laws were enacted to infringe
upon religious practices because of their religious motivation.
The Court will briefly reiterate certain of its findings in response to specific arguments
raised by Defendants. Defendants argue that “laws regarding educational institutions first were
enacted because the pre[-]2001 laws were lacking—they were ‘scant’—[and] did not address the
upsurge in development that was occurring in Pomona as noted in the [Village’s] Master Plan.”
(Defs.’ Mem. 46.) The Court does not credit this argument because it overlooks the context in
which Local Law No. 1 of 2001 was passed. Defendants have not cited to any evidence
indicating that the Board of Trustees was concerned with an “upsurge” in development. Rather,
the only evidence proffered on this issue shows that Local Law No. 1 of 2001 was passed in
response to YSV’s informal presentation regarding its desire to build a yeshiva on the Subject
Property. (See Pls.’ Exs. 111, 130 (FPC memoranda regarding updates to the Village Code in
light of YSV’s proposal).) There was certainly no “upsurge” regarding the development of
schools within the Village because none exist, (see Joint Pretrial Order Stipulations of Fact ¶ 27
(“No Educational Institutions existed within the Village in 2001, in 2004, in 2007, or
presently.”)), and the only institution seeking to build a school within the Village at the time
Local Law No. 1 of 2001 was passed was YSV, (see Trial Tr. 594). Therefore, the purported
increase in development does little to rebut the inference of discrimination that arises from the
context in which the laws regarding educational institutions were first passed.
Defendants next argue that the other local laws were adopted to “address[]
inconsistencies and case law requirements,” (Defs.’ Mem. 46), relying on Ulman’s testimony,
(see Ulman Aff. ¶¶ 48–55). As explained above, the Court credits very little of Ulman’s

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testimony on these matters. None of Ulman’s proffered justifications detracts from the strength
of Plaintiffs’ case.
Finally, Defendants argue that the Wetlands Law was adopted “to protect wetlands not
subject to Federal or State wetland regulations” and “had been under consideration by the
Village for many years.” (Defs.’ Mem. 46.) The last piece of this argument is particularly
harmful to Defendants’ position. The fact that the Wetlands Law was under consideration dating
back to the 1990s, but was not adopted until after Defendants were aware of Tartikov’s desired
use for the Subject Property, is proof that the law was designed to single out Plaintiffs’ religious
practices. Moreover, Beall’s testimony that there was no meaningful regulatory gap between
federal and state regulations went unrebutted at trial. (See Beall Decl. ¶ 60.) Accordingly, the
reasons behind the Wetlands Law do not support a finding that it serves a neutral, secular
purpose.
As Plaintiffs have carried their burden of showing that the Challenged Laws were passed
to infringe on religious practices because of their religious motivation, the burden shifts to
Defendants to show that the laws are “narrowly tailored” to “further a compelling state interest.”
Pyke II, 567 F.3d at 77. Defendants have not done so, as discussed at length earlier.
Accordingly, Plaintiffs have proven a violation of the Free Exercise Clause.
4. Free Association
In addition to the freedom of exercise, the First Amendment protects the freedom of
association. See Baird v. State Bar of Ariz., 401 U.S. 1, 6 (1971).33 The Supreme Court has

Because the Parties agree that the corollary provision to the First Amendment’s Free
Association clause in the New York Constitution is interpreted consistently with the federal
Constitution, the Court addresses both Plaintiffs’ state and federal free association claims here.
(See Pls.’ COL ¶ 18; Defs.’ Proposed Conclusions of Law (“Defs.’ COL”) 16 ¶ 5 (Dkt. No.
279).) See also Tartikov I, 915 F. Supp. 2d at 622 n.21.
33

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“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
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 New York, 107
F.3d 985, 995–96 (2d Cir. 1997) (same); AK Tournament Play, Inc. v. Town of Wallkill, No. 09CV-10579, 2011 WL 197216, at *2 (S.D.N.Y. Jan. 19, 2011) (same).
In evaluating Plaintiffs’ free association claim, “[t]he first question . . . is whether and to
what extent [D]efendants’ actions burdened” Plaintiffs’ right to associate for the purpose of
engaging in those activities protected by the First Amendment, Tabbaa v. Chertoff, 509 F.3d 89,
101 (2d Cir. 2007), “such as speech, assembly, redress of grievances, and the exercise of
religion,” see NYC C.L.A.S.H., Inc. v. City of New York, 315 F. Supp. 2d 461, 472 (S.D.N.Y.
2004). “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 (2d Cir. 1996)
(internal quotation marks omitted). Plaintiffs meet this burden here, as the Challenged Laws
directly and substantially interfere with Plaintiffs’ associational rights because the laws bar
completely Tartikov’s rabbinical college from the Village. Defendants disagree with this
conclusion, arguing that any interference posed by the Challenged Laws is insignificant because
“[t]he laws do not prohibit Tartikov from building classrooms and study halls for . . . students to
associate with teachers and each other.” (Defs.’ Mem. 52.) However, Defendants’ argument is
factually incorrect because the Village Code requires that Tartikov be accredited before it may
obtain a special use permit, which cannot happen under the challenged laws. Defendants offer

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no rebuttal to the challenge posed by the accreditation requirement. Setting aside this issue, even
if Tartikov could be accredited, the prohibition on student family housing likewise represents a
substantial burden for all of the reasons discussed above—Plaintiffs sincerely believe that a
Torah community serves as a necessary part of their rabbinical college and religious exercise.
The Challenged Laws present insurmountable obstacles to Plaintiffs achieving their desired
community.
“Having found a cognizable burden,” the second question is “the appropriate level of
scrutiny to employ in evaluating [D]efendants’ 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 less restrictive of associational freedoms.” Id. (alteration and internal quotation
marks omitted). As already discussed at length, Defendants have not proffered a compelling
state interest to justify the adoption of the Challenged Laws. Accordingly, Plaintiffs’ have
established a Free Association claim.
5. RLUIPA Exclusions and Limits
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). Plaintiffs assert claims under both the total
exclusion and the unreasonable limitations prongs.
The Parties disagree on the appropriate frame of reference for the Court to utilize in
determining whether the Challenged Laws totally exclude religious assemblies from the Village.
Defendants argue that Plaintiffs must “prove that the [Challenged] Laws totally exclude religious

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assemblies from the entire Village.” (Defs.’ Mem. 49.) Plaintiffs, on the other hand, argue that
the appropriate frame of reference is Plaintiffs’ total exclusion from the Village. (See “Pls.’
COL” ¶ 100 (“To prove a violation of RLUIPA’s [t]otal [e]xclusion provision, the Plaintiffs
must produce prima facie evidence demonstrating that the Challenged Laws completely exclude
the Plaintiffs from the Village.”).) Plaintiffs’ interpretation of the total exclusion provision finds
no support in the law.34 To succeed on a total exclusion claim, Plaintiffs must demonstrate that
the Village has totally excluded all religious assemblies from the Village. See Vision Church,
468 F.3d at 989–90 (holding that the total exclusion provision applies “only to the complete and
total exclusion of activity or expression” and that the defendant did not “completely or totally
exclude[] religious assemblies from its jurisdiction”); Miles v. Lansdowne Borough, No. 11-CV1913, 2012 WL 5960874, at *9 (E.D. Pa. Nov. 29, 2012) (“There is no evidence that [the
defendant] imposed or implemented a land use regulation that totally excludes religious
assemblies from its borders . . . .” (emphasis added)); Adhi Parasakthi Charitable, Med., Educ.,
and Cultural Soc’y v. Township of West Pikeland, 721 F. Supp. 2d 361, 386–87 (E.D. Pa. 2010)
(noting that the plaintiff’s religious use was not totally excluded and that the defendant’s zoning
ordinance “d[id] not operate as a total exclusion upon religious land use” (emphasis added));
House Where Jesus Shines, Inc. v. City of Bellmead, No. 08-CV-117, 2009 WL 10669584, at *5
(W.D. Tex. Sept. 11, 2009) (noting that under the total exclusion clause a defendant is
“prohibited from imposing or implementing a land use regulation that completely excludes
religious assemblies from [its] jurisdiction”).35 While Plaintiffs’ proposed religious use is

34

To the extent the Court indicated otherwise in Tartikov I or II, it has reconsidered its
earlier position.
35

Plaintiffs cite Vision Church as supportive of their position, including the following
parenthetical: “(classifying Schad as addressing an ordinance [that] completely prohibit[ed] the
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excluded from the Village, there is no evidence that other religious institutions are similarly
excluded. The evidence actually indicates the opposite—there currently are “three houses of
worship” in the Village. (See Trial Tr. 760.) Accordingly, Plaintiffs have not established a
violation of RLUIPA’s total exclusion provision.
The Parties likewise disagree over the appropriate frame of reference with respect to
Plaintiffs’ unreasonable limitations claim. (See Pls.’ COL ¶ 106 (“To prove a violation of
RLUIPA’s [u]nreasonable [l]imitations provision, the Plaintiffs must produce prima facie
evidence demonstrating that the Challenged Laws have the effect of depriving Plaintiffs or any
rabbinical college of reasonable opportunities to practice their religion, including the use and
construction of structures, with the Village.”); Defs.’ Mem. 49 (“To prove the RLUIPA
unreasonable limitations claim, . . . Plaintiffs must show that the [Challenged] Laws
unreasonably limit religious assemblies, institutions and structures across the Village.”).) “From
the plain language of the statute it is clear that the purpose of this subsection 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 the plaintiff to establish that the
county’s “regulation, as applied or implemented, ha[d] the effect of depriving both [the plaintiff]
and other religious institutions or assemblies of reasonable opportunities to practice their

expressive conduct at issue. . . . The same is true of section 2(b)(3)(A) of RLUIPA.).” (Pls.’
COL ¶ 102 (alterations in original) (internal quotation marks omitted).) However, this quotation
is inaccurate. Plaintiffs have misattributed language quoted by the court in a parenthetical to the
court itself. See Vision Church, 468 F.3d at 989.
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religion, including the use and construction of structures, within [the defendant] [c]ounty”
(internal quotation marks omitted)).
The Court is unaware of any case, and Plaintiffs do not cite to one, holding that the Court
should consider only the plaintiff’s use or the use of similarly situated entities in determining
whether the unreasonable limitation clause has been violated. (See Pls.’ COL ¶ 106.) In Adhi
Parasakthi, the court mentioned the plaintiff’s proposed use for a parcel of land, but ultimately
concluded that the plaintiff did not demonstrate that the defendant “broadly limit[ed] where
religious entities c[ould] locate.” 721 F. Supp. 2d at 387. In Vision Church, the court focused on
the ability of churches to locate within the defendant village, but ultimately concluded that
churches were not unreasonably limited and therefore did not consider whether other religious
institutions were unreasonably limited. 468 F.3d at 990. Given the lack of directly applicable
precedent, the Court will rely on the plain meaning of RLUIPA’s text. The unreasonable
limitation clause prohibits a government from “unreasonably limit[ing] religious assemblies,
institutions, or structures within [its] jurisdiction.” 42 U.S.C. § 2000cc(b)(3)(B). Nothing in this
provision suggests that the Court should constrain its focus to Plaintiffs’ proposed use and the
uses of similarly situated entities. The question, then, is whether the Village’s zoning ordinance
unreasonably limits religious institutions within its jurisdiction.
No evidence was offered during trial regarding the limitations placed generally on
religious assemblies, institutions, or structures. Plaintiffs’ proposed rabbinical college is
excluded, but only because of its unique nature and the way that the Challenged Laws were
crafted, i.e., in a way tailored to prevent Plaintiffs’ use. Indeed, this has been a theme of
Plaintiffs’ case. Houses of worship are designated as special permit uses, (see Village Code
§ 130-10(G)), but Plaintiffs have offered no evidence that this places any real limitation on their

98

location within the Village. And, as already noted, there are three houses of worship within the
Village already. (See Trial Tr. 760.) Plaintiffs also are mistaken about the evidence relevant to
an unreasonable limitations claim. They argue that the Wetlands Law is “hardly . . . reasonable”
because it does not apply to “98.4% of the parcels in Pomona,” (see Pls.’ Mem. 20 (internal
quotation marks omitted)), but this information is irrelevant. If the Wetlands Law does not apply
to 98.4% of parcels, the location of religious institutions on those parcels is not unreasonably
limited. Plaintiffs offer only evidence about the limitations placed on the Subject Property when
the relevant question is the limitations placed on all religious uses within the Village’s
jurisdiction. See 42 U.S.C. § 2000cc(b)(3)(B) (barring governments from unreasonably limiting
religious structures “within a jurisdiction” (emphasis added)). Essentially, Plaintiffs brief this
claim as if it should be treated similar to a substantial burden claim. That is not the case. See
Adhi Parasakthi, 721 F. Supp. 2d at 387 (noting that the unreasonable limitation provision was
designed “to prevent municipalities from broadly limiting where religious entities can locate”).
The unreasonable limitations provision does not mandate that the Village have a reasonable
zoning ordinance; it requires only that the zoning ordinance in place not unreasonably limit
religious uses. As Plaintiffs have failed to present evidence on the way in which religious uses
were otherwise limited by the Village’s zoning ordinance, they have failed to establish an
unreasonable limitations claim.
6. RLUIPA Nondiscrimination
RLUIPA’s nondiscrimination provision provides that “[n]o government shall impose or
implement a land use regulation that discriminates against any assembly or institution on the
basis of religion or religious denomination.” 42 U.S.C. § 2000cc(b)(2). Defendants concede that
“Plaintiffs must provide the same proof required under an Equal Protection claim” to succeed on

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an RLUIPA nondiscrimination claim. (See Defs.’ COL 12 ¶ 1.) Plaintiffs bear the “initial
burden of establishing a prima facie claim, after which [Defendants] bear[] the burden of
persuasion on the elements of the nondiscrimination claim.” See Chabad Lubavitch, 768 F.3d at
198. Because Plaintiffs have established an equal protection violation, they also have established
a violation of RLUIPA’s nondiscrimination provision.
7. RLUIPA Equal Terms
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 County, 450 F.3d 1295, 1307 (11th Cir. 2006)
(alterations and internal quotation marks omitted). As with the substantial burden component of
RLUIPA, the meaning of the equal terms section is far from clear, see Guru Nanak Sikh Soc’y of
Yuba City v. County of Sutter, 326 F. Supp. 2d 1140, 1154 (E.D. Cal. 2003) (asserting that this
section “is even less clear” than the “substantial burden” section), aff’d, 456 F.3d 978 (9th Cir.
2006), but courts have determined that the “substantial burden and nondiscrimination provisions
are 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. Village of Northbrook, No. 03-CV-1936, 2003 WL 22048089, at
*11 (N.D. Ill. Aug. 29, 2003), adopted by 2004 WL 442630 (N.D. Ill. March 8, 2004); accord

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Guru Nanak, 326 F. Supp. 2d at 1155; Freedom Baptist Church of Del. Cty. v. Twp. of
Middletown, 204 F. Supp. 2d 857, 869 (E.D. Pa. 2002).
An equal terms claim has four elements: “(1) the plaintiff must be a religious assembly or
institution; (2) subject to a land use regulation, that (3) treats the religious assembly on less than
equal terms, with (4) a nonreligious assembly or institution.” See Primera, 450 F.3d at 1307; see
also Chabad Lubavitch, 768 F.3d at 197 (noting that a plaintiff must produce prima facie
evidence of “unequal treatment” (emphasis and internal quotation marks omitted)). The
Eleventh Circuit has “discern[ed]” three kinds of equal terms violations:
(1) a statute that facially differentiates between religious and nonreligious
assemblies or institutions; (2) a facially neutral statute that is nevertheless
‘gerrymandered’ to place a burden solely on religious, as opposed to nonreligious,
assemblies or institutions; or (3) a truly neutral statute that is selectively enforced
against religious, as opposed to nonreligious[,] assemblies or institutions.
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); Family Life Church v. City of Elgin, 561 F. Supp. 2d 978, 989 (N.D. Ill. 2008)
(same). Plaintiffs assert that the first (“Primera Type 1 Cases”) and second (“Primera Type 2
Cases”) categories are applicable here. (See Pls.’ Mem. 54–55.)
In Primera Type 1 Cases, the Court is concerned with “facial discrimination.” Primera,
450 F.3d at 1308. Plaintiffs assert that the Challenged Laws facially differentiate between its
proposed use and the use of other nonreligious institutions, such as libraries, museums, and
recreational facilities, but the Court is unpersuaded. Plaintiffs believe that Tartikov is treated
differently than museums and libraries because Tartikov is subject to two area requirements
while libraries and museums are not subject to any specific building coverage requirements.
(See Pls.’ Mem. 55 (“‘Libraries’ and ‘Museums’ are not subject to any specific building

101

coverage or floor area limitation . . . .” (emphasis added)).) However, they are only partially
correct. The Village Code limits maximum building coverage for educational institutions to 10%
of the net lot area of a property and maximum total floor area to 20% of the net lot area. See
Village Code § 130-10(F)(2)(a)–(b). Museums and libraries are not subject to any explicit floor
coverage limitation, (see Weinstein Decl. ¶ 81), but are subject to a maximum lot coverage
restriction, see Village Code § 130-12(I) (“In order to ensure the maximum coverage of a lot
with vegetation, the prevention of over development of lots, to minimize the adverse visual
impacts and to minimize negative impacts of stormwater runoff, there is hereby established a
maximum lot coverage of 15%.”). Plaintiffs refer to this limitation as an “impervious surface
coverage limitation,” (Pls.’s Mem. 55), but they offer no support for this description. Indeed,
their own expert admits that museums and libraries are “subject to the 15% lot coverage
limitation in Village Code § 130-12 I.” (Weinstein Decl. ¶¶ 77–78 (emphasis added).)
Plaintiffs also assert that Tartikov is treated differently than museums and libraries
because Tartikov must obtain a special use permit to operate within the Village while those other
uses are permitted as of right, citing Centro Familiar Cristiano Buenas Nuevas v. City of Yuma,
651 F.3d 1163 (9th Cir. 2011). (See Pls.’ Mem. 56.) In a parenthetical, Plaintiffs state that
Centro stands for the proposition that the “requirement of having to obtain a conditional use
permit, while other nonreligious assembly were permitted by right, was by itself an Equal Terms
violation.” (Id.) This is not how the Court interprets Centro. In Centro, the Ninth Circuit held
that the defendant city’s code violated the equal terms provision because it required all “religious
assemblies” to obtain a conditional use permit, but did not require “similarly situated secular
membership assemblies to do the same.” 651 F.3d at 1175.

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In the Village, all educational institutions are subject to the special permit requirement
and building and floor area restrictions and all libraries and museums are subject to the lot
coverage limitation. See Village Code §§ 130(10)(F), 130(12). It does not matter whether those
institutions are religious or secular. Plaintiffs mistakenly believe that Primera Type 1 Cases are
concerned with the limitations placed on the Subject Property in comparison to limitations
placed on other uses within the Village. Their belief is incorrect because the key question is
whether the Village’s zoning ordinance “facially differentiates between religious and
nonreligious assemblies or institutions.” Primera, 450 F.3d at 1308 (emphases added). There is
no proof that the Village’s zoning ordinances do that. All Plaintiffs have established is that the
Village Code treats educational institutions differently than libraries and museums. Accordingly,
Plaintiffs have not established a violation of the equal terms provision on this ground.
Plaintiffs argue next that this is a Primera Type 2 Case because the Village’s zoning
ordinance is “‘gerrymandered’ to place a burden solely on religious, as opposed to secular,
assemblies or institutions.” (Pls.’ Mem. 57.) To succeed on this type of claim, Plaintiffs must
“show that the challenged zoning regulation separates permissible from impermissible
assemblies or institutions in a way that burdens ‘almost only’ religious uses.” Primera, 450 F.3d
at 1309.36 Plaintiffs contend that the 20% restriction on student housing space treats religious

36

In Tartikov II, the Court denied summary judgment on this claim because Plaintiffs had
proffered sufficient evidence that Defendants had “engaged in a religious gerrymander,”
focusing on the fact that the evidence suggested that “Defendants used the Challenged Laws to
uniquely restrict the ability of Plaintiffs to build their rabbinical college in the Village.” 138 F.
Supp. 3d at 442. Upon further reflection, this may not have been the appropriate standard. The
Court relied on evidence that Defendants discriminated against Plaintiffs in adopting the
Challenged Laws, but Primera suggests that the focus should be on whether the challenged
zoning ordinance “burdens almost only religious institutions,” 450 F.3d at 1309 (internal
quotation marks omitted), placing the focus on the effect of the ordinance rather than on whether
the ordinance was adopted to discriminate against the plaintiff. This distinction makes sense. If
discrimination against the plaintiff is sufficient to establish an equal terms violation, RLUIPA’s
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educational institutions worse than nonreligious ones because the “vast majority of colleges and
universities that offer 100% housing for their students are religious in nature.” (Pls.’ Mem. 58.)
See also Village Code § 130-10(F)(12) (“A dormitory building shall not occupy more than 20%
of the total square footage of all buildings on the lot.”). What the vast majority of religious
colleges do, however, is not evidence that the 20% restriction places a limitation on that practice.
As far as the Court knows, those colleges could both offer housing to 100% of their students and
comply with the 20% housing space restriction. In any event, this requirement applies to
religious and secular educational institutions. Accordingly, Plaintiffs have not established an
equal terms violation.
8. Fair Housing Act
The FHA “prohibit[s] governmental entities from implementing or enforcing housing
policies in a discriminatory manner.” Tsombanidis, 352 F.3d at 573. The Act itself make it
unlawful to “otherwise make unavailable . . . a dwelling to any person because of race, color,
religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a).37 “The phrase ‘otherwise
make unavailable’ has been interpreted to reach a wide variety of discriminatory housing
practices, including discriminatory zoning restrictions.” LeBlanc-Sternberg, 67 F.3d at 424.

nondiscrimination clause could be rendered superfluous, violating the maxim that effect be given
to all of a statute’s provisions. See Corley v. United States, 556 U.S. 303, 314 (2009) (noting
that “one of the most basic interpretive canons” of statutory construction is that “a statute should
be construed so that effect is given to all of its provisions, so that no part will be inoperative or
superfluous, void or insignificant” (alteration and internal quotation marks omitted)).
It is undisputed that Tartikov’s student family housing qualifies as a dwelling under the
FHA. See 42 U.S.C. § 3602(b) (defining “[d]welling” to include “any building, structure, or
portion thereof which is occupied as, or designed or intended for occupancy as, a residence by
one or more families”).
37

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A plaintiff can establish a violation of the FHA by proving discrimination in the form of:
(1) “disparate treatment or intentional discrimination” or (2) “disparate impact of a law.” Human
Res. Research & Mgmt. Grp., Inc. v. County of Suffolk, 687 F. Supp. 2d 237, 254 (E.D.N.Y.
2010); see also Tex. Dep’t of Housing and Cmty. Affairs v. Inclusive Cmty. Project, 135 S. Ct.
2507, 2525 (2015) (“The Court holds that disparate-impact claims are cognizable under the Fair
Housing Act . . . “); LeBlanc-Sternberg, 67 F.3d at 425 (“An FHA violation may be established
on a theory of disparate impact or one of disparate treatment.”). “To establish a prime facie case
of intentional discrimination under the FHA, plaintiffs must present evidence that animus against
the protected group was a significant factor in the position taken by the municipal decisionmakers themselves or by those to whom the decision-makers were knowingly responsive.”
Human Res. Research, 687 F. Supp. 2d at 254 (internal quotation marks omitted). Relevant
considerations for “discerning a racially discriminatory intent include the historical background
of the decision particularly if it reveals a series of official actions taken for invidious purposes,
departures from the normal procedural sequence, substantive departures, and the legislative or
administrative history especially where there are contemporary statements by members of the
decisionmaking body, minutes of its meetings, or reports.” Mhany Mgmt., 819 F.3d at 606
(alterations, citations, and internal quotation marks omitted).
“After the plaintiff has established a prima facie case, the burden then must shift to the
defendant to articulate some legitimate, nondiscriminatory reason for the action.” Harris v.
Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999). If the defendant proffers such a reason, the burden
shifts back to the plaintiff to show that he or she has “been the victim of intentional
discrimination, either directly by persuading the court that a discriminatory reason more likely
motivated the defendant or indirectly by showing that the defendant’s proffered explanation is

105

unworthy of credence.” Id. (alterations and internal quotation marks omitted); see also Mhany
Mgmt., 819 F.3d at 613 (“If a defendant meets its burden of production, the sole remaining issue
is discrimination vel non. The plaintiffs must prove that the defendants intentionally
discriminated against them on a prohibited ground.” (alteration and internal quotation marks
omitted)).
The considerations relevant to whether Defendants acted with discriminatory intent are
the same as those the Court has already considered in connection with Plaintiffs’ equal protection
claim. The Court need not rehash them here. Plaintiffs have established that discriminatory
animus was a significant factor in the passage of the Challenged Laws. Focusing on the housing
aspect of the Challenged Laws specifically, Defendants first adopted the laws prohibiting student
family housing in direct response to Ramapo’s decision to enact the ASHL, crafting Local Law
No. 5 of 2004 to prohibit the student family housing contemplated by the ASHL. Marshall was
particularly displeased with the ASHL, stating that Ramapo officials passed the law to cater to
the Orthodox Jewish vote. (See Trial Tr. 619; Pls.’ Ex. 109, at POM0013281.) Then, as more
information became available about Tartikov’s intended use for the Subject Property, Defendants
supported and passed additional laws placing even more hurdles in front of Plaintiffs.38

38

The allocation of burdens for a disparate impact claim are slightly different than those
applicable to disparate treatment claims. First, a plaintiff “must . . . establish a prima facie case
by showing, (1) the occurrence of certain outwardly neutral practices, and (2) a significantly
adverse or disproportionate impact on persons of a particular type produced by the defendant’s
facially neutral acts or practices.” Mhany Mgmt., 819 F.3d at 617 (internal quotation marks
omitted). The defendant may rebut the prima facie case by “proving that the challenged practice
is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the . . .
defendant.” Id. (internal quotation marks omitted). “[I]f the defendant meets its burden, the
burden of proof shifts back to the plaintiff to show that the substantial, legitimate,
nondiscriminatory interests supporting the challenged practice could be served by another
practice that has a less discriminatory effect.” Id. (internal quotation marks omitted). Because
Plaintiffs have established a disparate treatment claim, the Court declines to consider whether the
same evidence also is sufficient to establish a disparate impact claim.
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Because Plaintiffs have carried their initial burden, Defendants must come forward with
“legitimate, nondiscriminatory reason[s] for the[ir] action[s].” Harris, 183 F.3d at 1051. None
of the reasons Defendants proffer for adopting the Challenged Laws is legitimate. As discussed
above, the Court credits very little of Ulman’s testimony about what motivated the adoption of
the laws. Plaintiffs have proven that their intended purpose was to thwart the development of the
rabbinical college because it was proposed by Orthodox/Hasidic Jews. Accordingly, Plaintiffs
have established a violation of 42 U.S.C. § 3604.
The FHA also makes it unlawful “to coerce, intimidate, threaten, or interfere with any
person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on
account of his having aided or encouraged any other person in the exercise or enjoyment of, any
right granted or protected” by the FHA. 42 U.S.C. § 3617. The implementing regulations
interpret § 3617 to cover “[t]hreatening, intimidating or interfering with persons in their
enjoyment of a dwelling because of the race, color, religion, sex, handicap, familial status, or
national origin of such persons, or of visitors or associates of such persons.” 24 C.F.R.
§ 100.400(c)(2). To establish a § 3617 claim, Plaintiffs “must demonstrate (1) that they aided or
encouraged members of a protected class in the exercise or enjoyment of their FHA rights, and
(2) that as a result of their actions, they suffered coercion, intimidation, threats, interference or
retaliation.” Wentworth v. Hedson, 493 F. Supp. 2d 559, 565 (E.D.N.Y. 2007); see also United
States v. Weisz, 914 F. Supp. 1050, 1054 (S.D.N.Y. 1996) (“[T]o bring a claim within § 3617, a
plaintiff must allege conduct on the part of a defendant which in some way or other implicates
the concerns expressed by Congress in the FHA. If it were otherwise, the FHA would federalize
any dispute involving residences and people who live in them.”). Plaintiffs’ proof is sufficient to
establish a violation of § 3617 because Defendants have piled on layers of regulation to interfere

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with Plaintiffs’ use of the Subject Property. Indeed, Defendants’ principal purpose in enacting
the Challenged Laws was to prohibit Plaintiffs from building dwellings on the property.
9. New York Constitutional Right to Freedom of Worship
The New York State Constitution provides that “[t]he free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall forever be allowed
in this state to all humankind . . . .” N.Y. Const. Art I, § 3. The New York Court of Appeals has
held, in analyzing a state free exercise claim, that “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.” Catholic Charities of Diocese of
Albany v. Serio, 859 N.E.2d 459, 466 (N.Y. 2006) (alteration and internal quotation marks
omitted); see also Fortress Bible II, 694 F.3d at 221 n.9 (noting that New York state courts
“employ a balancing test to determine if the interference with religious exercise was
unreasonable”). As discussed above, the burden imposed on Plaintiffs’ religious exercise is
substantial. Therefore, Defendants interests must be equally substantial. Defendants fall short of
the mark because their stated interests and justifications for the Challenged Laws do not hold up
to scrutiny. Moreover, Defendants can achieve many of their goals through other avenues, such
as imposing size restrictions on the issuance of a special permit. Accordingly, balancing the
burden imposed on Plaintiffs’ religious exercise against the interests advanced by the Challenged
Laws, the Court concludes that Defendants have violated the New York State Constitution.
10. Berenson
Plaintiffs contend that Defendants’ zoning ordinance must be set aside because it violates
the standard established by the New York Court of Appeals in Berenson v. Town of New Castle,

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341 N.E.2d 236 (N.Y. 1975). In Berenson, the plaintiffs filed a declaratory judgment action
attacking the “validity of the [z]oning [o]rdinance of the Town of New Castle in its entirety on
the ground that the ordinance exclude[d] multifamily housing from the list of permitted uses.”
Id. at 238. The court established a two-part test for determining whether an ordinance
“excluding multifamily housing as a permitted use” is valid. Id. at 241–42. “The first branch of
the test . . . is simply whether the board has provided a properly balanced and well ordered plan
for the community.” Id. at 242. The second requirement is that, “in enacting a zoning
ordinance,” the town or village board must give “consideration . . . to regional needs and
requirements.” Id. The court noted that “a town need not permit a use solely for the sake of the
people of the region if regional needs are presently provided for in an adequate manner.” Id. at
242–43.
In Tartikov II, the Court stated that there are two ways to prove a Berenson violation: (1)
by showing that the town’s or village’s zoning ordinance was enacted with an exclusionary
purpose, or (2) that it ignored local or regional housing needs. See 138 F. Supp. 3d at 444–45.
The Court concluded that summary judgment was inappropriate on this claim because, although
Plaintiffs failed to demonstrate that the Challenged Laws were enacted without giving proper
regard to local and regional housing needs, there was “sufficient evidence for a reasonable jury
to conclude that the Village enacted the Challenged Laws for an improper exclusionary
purpose.” Id. at 445. In reaching this conclusion, the Court focused on the Challenged Laws
rather than the Village’s Zoning Code as a whole. But, the issue before the Court in Berenson
was the validity of “the [z]oning [o]rdinance of the Town of New Castle” and the town’s
decision to exclude “multifamily residential housing from the list of permitted uses.” Berenson,
341 N.E.2d at 238. While no Party directly addresses the Court’s approach in their papers, the

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Court finds it significant that Plaintiffs’ papers focus on the Village’s Zoning Code rather than
the Challenged Laws themselves in addressing their Berenson claim. (See Pls.’ Mem. 59 (“With
respect to the second Berenson prong, the appropriate inquiry is whether the zoning ordinance on
its face allows the construction of sufficient housing to meet the town’s share of the region’s
housing needs. Here, Plaintiffs established that Pomona’s zoning scheme is impermissible
pursuant to New York law because its exclusionary scheme was enacted for an improper,
discriminatory purpose and, consequently, is invalid.” (emphases added) (internal quotation
marks omitted)).) Certain provisions of the Village’s zoning ordinance were enacted for a
discriminatory purpose, i.e., the Challenged Laws, but no evidence was introduced proving that
the zoning scheme itself was enacted for an improper purpose. Nor is there any evidence that the
Board of Trustees failed to consider regional housing needs in adopting the Village’s zoning
ordinance. Indeed, Ulman testified that the Village has always believed that it is in “compliance
with the regional requirements of housing.” (Trial Tr. 922.) Therefore, Plaintiffs have not
established a Berenson violation.
C. The Appropriate Remedy
Plaintiffs’ seek an order enjoining the enforcement of the Challenged Laws such that
Tartikov will be permitted to “apply for a special permit and site plan not subject to the
challenged provisions.” (Pls.’ Mem. 60.) The Court finds that this is an appropriate and
adequate remedy. Cf. United States v. City of New York, 717 F.3d 72, 95(2d Cir. 2013) (“Once
liability for racial discrimination has been established, a district court has the duty to render a
decree that will eliminate the discretionary effects of past discrimination and prevent like
discrimination in the future.”) Plaintiffs shall submit a proposed judgment consistent with the
Court’s rulings within 30 days from the date of this Opinion. Within 15 days of Plaintiffs’

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submission, Defendants may file a letter specifying its position on the proposed judgment. The
Court will review the submissions and enter the judgment forthwith.
Plaintiffs also ask that the Court appoint a federal monitor to oversee all future
proceedings. “This Court has broad discretion to appoint a compliance monitor as a form of
equitable remedy.” See U.S. Commodity Futures Trading Comm’n v. Deutsch Bank AG, 16-CV6544, 2016 WL 6136664, at *2 (S.D.N.Y. Oct. 20, 2016); see also United States v. Yonkers Bd.
of Educ., 29 F.3d 40, 44 (2d Cir. 1994) (“The power of the federal courts to appoint special
masters to monitor compliance with their remedial orders is well established.”). The Court holds
that the appointment of a monitor is not warranted in this case. The only issue before the Court
is whether Tartikov’s special use permit should be subject to the Challenged Laws. The Court
has held that Defendants cannot enforce the Challenged Laws against Tartikov. The onus is now
on Plaintiffs to submit an application to the appropriate body. The Court finds it inappropriate to
insert a federal monitor into the permit application process. “[F]ederal courts should not become
zoning boards of appeal.” Harlen Assocs., 273 F.3d at 505. “State courts are better equipped in
this arena” and “principles of federalism” dictate that the Court should refrain for interfering
unnecessarily in the application process. Id. (internal quotation marks omitted). Accordingly,
Plaintiffs’ request is denied.

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III. Conclusion
For the foregoing reasons, the Court holds that Plaintiffs have established violations of
the First and Fourteenth Amendments of the United States Constitution, certain provisions of
RLUIPA, the FHA, and§§ 3, 9, and 11 of the New York State Constitution. Plaintiffs are
directed to submit a proposed judgment within 30 days of the date of this Opinion that is
consistent with the Court's ruling. Defendants have I 5 days to respond.
SO ORDERED.

:f ,

2017
Dated: December
White Plains, New York

United States District Judge

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