Since the Village zoning ordinance does not permit the burial of human remains within the Village, after acquiring a parcel of land the Roman Catholic Dioceses sought a zoning change from the Village to allow for the development of the land as a cemetery. The Village informed the Diocese that it would have to appear that a public hearing to prove the proposed change was in accord with the Village’s comprehensive plan, to which the Village responded that it could not discern any comprehensive plan and that such a requirement was merely pretext. A consulting firm, on retainer with the Village to provide planning assistance, issues a report to the Village opining that the Diocese’s proposed cemetery constituted a commercial enterprise or business use not in accord with the comprehensive plan. Following a public hearing, the Board denied the Diocese’s request, concluding that it was not a religious use of property but rather a “huge commercial operation outside of the Village’s framework.”
In a long history of protracted litigation, the state trial court determined that the use of the property by the Diocese for a cemetery did constitute a religious use. Later that year, the Village enacted amendments to the Code and appealed the order of the trial court. While the appellate court upheld the determination that the use of the land as a cemetery constituted a religious use, the appeals court also determined that such use was a Type I Action under SEQRA and that the board had to go through the SEQRA review process with respect to the application. Further, that court directed that a determination on the application “shall be made consistent with the preferential treatment afforded the religious use this property.”
The Diocese alleges that since that decision, the Village has “abused virtually every device and mechanism available to prevent development of the cemetery. Further, the Diocese claimed that the Board failed to act within the required 75 days on the Final Environmental Impact Statement, and that since there are only two parish cemeteries in the county and both are filled to capacity, many parishioners have been forced to choose burial in a non-Catholic cemetery.
Following the filing of the instant complaint in November 2009, in June of 2010 the Village adopted a resolution granting a special exception permit to the Diocese for use of the property as a cemetery/place of worship. The Diocese still takes issue with conditions imposed.
With respect to the Diocese’s Section 1983 claim against the Village planning consultants, the Court dismissed the claim since the consultant defendants did not act under color of law as they were merely providing advice and not engaging in decision making. Because the consultants did not act under color of state law, they are not subject to liability under the Religious Land Use and Institutionalized Persons Act which applies only to a “government” and under the definition section to be covered, a person would have to be “acting under color of State law…” 42 USC sec. 2000cc-5(4).
As to the Village’s claim that the Section 1983 and RLUIPA claims were time barred as they arise from actions in 2002, but the Diocese claimed that the complaint alleges a continuous violation. The Court noted that the Diocese commenced the action in November 2009 and therefore, only incidents that occurred after November 2006 are actionable pursuant to Sections 1983 and 1985 and only incidents that occurred after November 2005 are actionable pursuant to RLUIPA unless the Diocese can establish a continuing violation. The Court concluded that some of the claims were time barred, but others were permitted to proceed.
The Diocese’s Equal Protection claims were determined not yet ripe since there was not final action yet on the FEIS. Further, the court said that a municipal requirement for an EIA does not constitute sufficient delay so as to invoke the futility exception. Further, the Diocese’s First Amendment and RLUIPA claims against the Village were not yet ripe since the Diocese did not allege that it suffered “immediate injury” and had they pursued other administrative remedies (e.g., appeal to the ZBA), this might have further defined their injuries. Absent a final decision these claims were simply not ripe.
Roman Catholic Diocese of Rockville Centre, New York v Incorporated Village of Old Westbury, 2011 WL 666252 (E.D.N.Y. 2/14/2011)
