Posted by: Patricia Salkin | November 12, 2012

Fed. Dist. Ct. in N.Y. Grants Summary Judgment in favor of Town as Plaintiff’s RLUIPA Claims on Ripness Grounds for Failure to Appeal to ZBA

Plaintiffs, Yechiel Mechel Twersky and Pinchas Twersky, initiated this action under 42 U.S.C. § 1983, the Religious Land Use and Institutionalized Persons Act (hereinafter “RLUIPA”) and New York State Law.  Plaintiffs’ claim their religious rights were violated when the Town of Hempstead refused to grant them building permits to construct an ohel over their father’s grave.  Following discovery, both parties cross-moved for summary judgment.  The United States District Court, Eastern District of New York, granted summary judgment in favor of the Town defendants and defendant-intervenors Yitzchok Twersky and Duvid Twersky.  The court likewise denied the plaintiffs’ motion for summary judgment.

This case revolves around a dispute within the Twersky family.  In 1928, a burial plot was purchased by Isaac Twersky.  Upon Isaac’s death, the plot was passed on to his three sons – Aaron, David, and Mordecai.  Due to a rift in the family, David and Mordecai were no longer on speaking terms when David died in 2001.  Mordecai passed away in 2007.  Following their deaths, the burial plot was left to the children of David and Mordecai, who each left behind seven children.  Following David’s death, plaintiffs (Davis’s sons) wanted to build an ohel over his grave.  After speaking with the cemetery, plaintiffs became aware that they would need the consent of Mordecai to build the ohul, as he was co-owner.  Mordecai refused, and the plaintiffs’ plan was shelved until 2007.  In March of 2008, Duvid, Mordecai’s son, noticed the construction of the ohul, and like his father, Duvid did not approve.  Duvid notified the Town, which issued a stop work order because a building permit was not obtained.  The Town notified the cemetery that construction could not be reinitiated until the cemetery signed the permit application.  The cemetery refused to sign the application because the Mordecai branch of the family would not consent to the construction.  As a result, a building permit was not granted by the Town, and the plaintiffs filed suit against the Town.  Yitzchok and Duvid Twersky intervened as defendants.

The Town asserted that the plaintiffs’ RLUIPA and First Amendment claims should be dismissed because they are not ripe for review.  In determining whether a land use case is ripe for review, the court looks to the finality of the local decision, exhaustion of administrative remedies, whether the issuance of a variance would provide the relief sought, and whether the principles of federalism further support the requirement of finality.  A showing of futility will excuse the finality requirement.  The court declined to analyze ripeness under the more lenient First Amendment standard, as the plaintiffs’ could not show immediate injury, and a more complete record would further define the plaintiffs’ injury.

The District Court determined the plaintiffs’ First Amendment and RLUIPA claims were not ripe for review, as the plaintiffs failed to obtain a final and dispositive decision on the building permit requirements.  Rejecting the plaintiffs’ argument to the contrary, the court found that since the building inspector made an interpretation of the Town Code when requiring the plaintiffs to obtain the cemetery’s authorization, the plaintiffs should have sought an appeal from the Town of Hempstead Zoning Board of Appeals (hereinafter “ZBA”).  Appealing to the ZBA would have resulted in a final decision, provided a full record for review, and would exhausted administrative remedies.  In addition, the court determined that the principles of federalism supported the requirement of finality, as the Town ZBA is better situated to interpret the Town’s zoning language.

The court then addressed the plaintiffs’ claim that appeal to the ZBA would be futile.  In order to make a showing of futility, the petitioner must show the municipal body lacked authority over the matter “or has dug in its heels and made clear that all such applications will be denied.”  In addition, an appeal will not be required where the local appellate authority “‘sits purely as a remedial body’ and is not empowered to participate in the decision making.”  The court found the plaintiffs failed to show the ZBA lacked authority, had dug in its heals, or was purely a remedial body.  Thus, the court found the plaintiffs were not excused from filing an appeal before the ZBA.  As a result, the court granted summary judgment in favor of the defendants.

Having dismissed the plaintiffs’ federal law claims, the court declined to exercise supplemental jurisdiction over the state law claims.

Twersky v. Town of Hempstead, 2012 WL 4928901 (E.D.N.Y., Oct. 16, 2012).

The opinion can be accessed here.


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