In the late 1990’s, Fortress Bible Church purchased a six and a half acre parcel within the Town of Greenburgh (NY) for the purpose of constructing a facility that could adequately house its growing congregation and school. In order for the Town to grant approval, it would need to make a discretionary determination, which triggered the application of the New York State Environmental Quality Review Act (hereinafter “SEQRA”). Fortress submitted a proposal, met the Town’s traffic and environmental concerns, and the Planning Commissioner advised that the Town Board could issue a Conditioned Negative Declaration, meaning adverse environmental impacts could be mitigated by the lead agency, and an Environmental Impact Statement would not be required. Later, the Town Supervisor stated he was troubled by the tax exempt status of Fortress and sought the donation of a fire truck or a payment-in-lieu of taxes. Fortress refused and the Board issued a positive declaration, triggering the full SEQRA review process.
Fortress complied with the requirements of the SEQRA review process, submitted all the information needed, the New York Department of Transportation approved of Fortress’ traffic study, yet the process stalled. Town officials indicated they wished to “kill” the project, and it would only be saved by yearly financial contributions to the fire department. The Town continued to add new issues to the SEQRA process, which is uncommon, and Fortress provided the necessary information. The Town stopped the process all together when it claimed Fortress failed to reimburse the Town for related expenses. Later, “the Town took the unusual step of taking over preparation of the [Final Environmental Impact Study]. It did not notify the Church that it had done so . . ..” The Town then added additional issues to the document. Fortress responded by filing this action. The Town then denied the Fortress’ application finding it violated the “recently enacted ‘steep slope’ zoning ordinance,” it would stress police and fire services, the site’s retaining walls would constitute an attractive nuisance, and there would be traffic and parking issues.
The District Court found the Town violated Fortress’ rights under The Religious Land Use and Institutionalized Persons Act (RLUIPA), the Federal and New York Free Exercise Clauses and Equal Protection Clauses. The District Court found the Town used SEQRA in bad faith, creating a substantial burden in violation of RLUIPA and the Free Exercise Clauses. The court also found a violation of Fortress’ Equal Protection rights under a class-of-one theory. In addition, the court found a Town Board member “destroyed discoverable evidence despite specific instructions not to do so.” The District Court granted broad relief, amounting to a complete approval of the project, with the necessary permits and variances, and a $10,000 sanction.
The Second Circuit first addressed the Town’s appeal concerning the RLUIPA claim. RLUIPA requires that land use regulations not impose a substantial burden on the exercise of religion, unless the regulation is the least restrictive means to further a compelling governmental interest. The Second Circuit found that although SEQRA itself is not a land use regulation, its application by officials in this case was, and thus the use of SEQRA in this matter invoked RLUIPA protections. RLUIPA applied because SEQRA was used to address zoning concerns, the Town code has “intertwined” SEQRA with its zoning regulations, and the Town officials used the SEQRA process to address zoning issues– as opposed to environmental. Furthermore, the court found it would be bad policy to exempt SEQRA review from RLUIPA protections, as localities could insulate their decisions from RLUIPA by cloaking their acts under the SEQRA banner. This determination created precedent, as no federal Court of Appeals had addressed whether environmental review statutes can be considered land use regulations under RLUIPA.
Once the court found RLUIPA applied, it had no difficulty finding a violation thereof. The court found the Town’s use of SEQRA was “disingenuous.” The court determined it was only used – after the Planning Commissioner found it was unnecessary – because the Town wanted to kill the project due to its tax exempt status and lack of willingness to “donate” equipment or money.
The Second Circuit affirmed the finding of a substantial burden on the basis that Fortress had outgrown its current facility (expansion is the church’s God-given mission), the Town acted in “bad faith and in hostility,” and would not permit Fortress to build on the proposed site. The court found the burden on Fortress was more than minimal and there was a close nexus between the denial of the application and Fortress’ inability to construct an adequate building. Although the court agreed that where there is a “possibility of modification and resubmission,” a substantial burden will likely not be found, that principal does not apply where there the locality acts in bad faith or discriminates on the basis of religion, as was the case here. The court found that resubmission to the Town would be futile, given the Town’s refusal to accept Fortress’ accommodations to Town concerns, as well as the Town’s repeated attempts to derail the project.
Next, the court addressed the Town’s claim that it did not violate the Free Exercise Clauses of the federal and New York constitutions. The Town asserted that the District Court should have used the rational basis standard of review rather than the more taxing strict scrutiny standard of review. The Second Circuit stated that it has yet to conclude what standard of review would be applicable in this type of case, and refused to provide an answer at this time because it would be ineffectual. This was because regardless of the standard used, the Town could not prevail, as its reasons for dismissal were pretextual, it acted with hostility, and the District Court found the Town’s witnesses lacked credibility. Simply put, the Town did not even have a rational basis.
The Town next asserted that the District Court committed an error in finding an Equal Protection violation, because Fortress’ class-of-one theory was barred by a 2008 Supreme Court case and Fortress failed to show an adequate similarly situated use. The court stated that the Supreme Court case of Engquist may bar a class-of-one case where the state is acting in another role than the Sovereign, such as an employer. In this line of cases, the court looks to the discretion afforded to the state actor and the procedures that apply to the decision making process. Given that SEQRA provides a review process, the locality is acting as a sovereign, and this decision involved discretion, the court found the class-of-one theory was not barred.
The Second Circuit also found Fortress provided sufficient similarly situated uses to succeed on the claim. This issue was of first impression, as Fortress submitted the treatment of different applicants concerning discrete issues, rather than making a showing of near identical comparators. The court found this tactic sufficient in this case, stating, “Where, as here, the issues compared are discrete and not cumulative or affected by the character of the project as a whole, multiple comparators are sufficient so long as the issues being compared are so similar that differential treatment with regard to them cannot be explained by anything other than discrimination.” Thus, the Second Circuit affirmed the District Court on this claim, as well, finding Fortress met this newly minted standard.
The Second Circuit also affirmed the District Court’s finding that Article 78 provided Fortress with relief. Article 78 provides that a local decision can be overturned where “arbitrary, capricious and unsupported by the evidence.” Given that both courts found the SEQRA determination to be disingenuous, pretextual and illegitimate, the Second Circuit found it was unsupported by the evidence.
Lastly, the Second Circuit addressed the Town’s claim that the District Court abused its discretion because the injunction bound the Zoning Board, which was not a party to the action, and enjoined local decisions that have yet to be made. Concerning the Zoning Board issue, the court refused to address it because it was waived, as it was not brought up as an objection to the District Court. As to the former argument, the Second Circuit found the District Court injunction was specifically tailored and did not exceed the court’s discretion.
Fortress Bible Church v. Feiner, No. 10-3634-cv, 2012 WL 4335158 (2nd Cir., Sept. 24, 2012).
The opinion can be accessed here.