In a long awaited decision, on Wednesday the Second Circuit ruled that the denial of approvals for a religious school expansion by the Village of Mamaroneck constituted a substantial burden on the exercise of religion, that the record failed to demonstrated a compelling governmental interest for the denial – and even if the articulated compelling governmental interests were to be proven, the complete denial of the application was not the least restrictive means. Furthermore, the Second Circuit held that RLUIPA is constitutional.
The decision is the latest in a five year battle between the Village of Mamaroneck, NY and the Westchester Hebrew Day School over the construction of a new school building. The School first submitted an application to the zoning board for modification of its special use permit to enable it to proceed with a $12 million expansion project in October 2001. In February 2002, the Board voted unanimously to issue a negative declaration under the State Environmental Quality Review Act, meaning the project would have no significant environmental impacts. Following public opposition, the negative declaration was rescinded in August 2002. Rather than submit a full Environmental Impact Statement, the school commenced a lawsuit alleging that the rescission violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). Following a ruling by the District court in 2002 that the negative declaration was not properly rescinded, the zoning board held hearings on the merits of the application and denied the application in May 2003. The denial was based upon the impact of the project on traffic, concerns over parking and the intensity of the use, but these grounds were identified after the hearings, affording no opportunity for the School to respond. The District Court determined that the denial was not supported by evidence in the record. After a number of procedural issues decided by the District Court and the Circuit Court, following a seven-day bench trial in November 2005, the Court ordered the Village to issue the special permit, and the Village appealed.
The Second Circuit said that the expansion of a school building used for religious purposes constitutes an exercise of religion. The Court explained that the following uses, just because they may be proposed by a religious organization, might not constitute a “religious exercise:” a school gymnasium used soley for sporting activities; the building of a residence on school property for a headmaster; and the construction of additional office space for a school. None of these were at issue in this case.
With respect to substantial burden, the Second Circuit adopted the coercion test set forth in the 11th Circuit’s Midrashi opinion (366 F.3d 1214), stating that “when there has been a denial of a religious institution’s building application, courts appropriately speak of government action that directly coerces the religious institution to change its behavior, rather than government action that forces the religious entity to choose between religious precepts and government benefits.” The Court said that an absolute rejection of the proposed plan, as in this case, was different from a rejection of a submitted plan that left open the possibility of approval of a resubmission with modifications designed to address the cited problem. Whether a conditional approval will constitute a substantial burden will depend upon whether there is a “reasonable opportunity for the institution to submit a modified application, the denial does not place substantial pressure of it to change its behavior…”
The Court also noted that a substantial burden claim may exist where land use restrictions are imposed arbitrarily, capriciously or unlawfully. The Second Circuit noted that in this case, the Village Zoning Board acted unlawfully under New York State law because their decision was based on grounds “unrelated to the public’s health, safety or welfare.” In an attempt to show a compelling governmental interest, the Village raised traffic and parking concerns. While these are compelling governmental interests, in this case the Court found insufficient evidence in the record to prove these were legitimate concerns, beyond mere public opposition to the project.
Lastly, with respect to the Village’s actions, the Court determined that even if they could articulate a compelling governmental interest, the Village did not satisfy the least restrictive means requirement since their denial of the application was absolute. The Court relied on the District Court’s findings that the ZBA members were not credible when they testified that would give reasonable consideration to another application by the School. The Court said, “When the board’s expressed willingness to consider a modified proposal is insincere, we do not require an institution to file a modified proposal before determining that its religious exercise has been substantially burdened.” Furthermore, the Court observed that “The ZBA had the opportunity to approve the application subject to conditions, but refused to consider doing so.”
Concluding that the Village violated RLUIPA, the Second Circuit considered the constitutionality of the Act. The Court said RLUIPA does not violate the Commerce Clause (so long as the jurisdictional element is satisfied that there is a minimal effect on commerce), it does not run afoul of the Tenth Amendment (“We do not believe RLUIPA directly compels states to require or prohibit any particular acts. Instead, RLUIPA leaves it to each state to enact and enforce land use regulations as it deems appropriate so long as the state does not substantially burden religious exercise in the absence of a compelling interests achieved by the least restrictive means.”), and that it does not violate the Establishment Clause (“the principal primary effect of RLUIPA’s land use provisions neither advances nor inhibits religion.”).
Westchester Day School v. Village of Mamaroneck, 2007 WL 3011061 (C.A. 2 N.Y. 10/17/07).
