Posted by: Patricia Salkin | May 1, 2015

Fed. Dist. Court in NY Holds Suit by “Interested,” Neighboring Municipalities to Enforce SEQRA Requirements Does Not “Impose or Implement” a Land Use Regulation or Constitute a “Government Practice” and does not Violate RLUIPA

Editor’s Note: Thanks to the RLUIPA Defense Blog for this post: 

On March 27, 2015, the Southern District of New York granted summary judgment in favor of all defendants in the consolidated action Bernstein v. Wesley Hills, 08-CV-156; 12-CV-8856 (KMK), (the “Wesley Hills” Action). The court’s 76-page decision begins with a recitation of the long procedural history of the case and the separate 2004 action filed by four Villages within the Town of Ramapo: the Village of Wesley Hills, the Village of Chestnut Ridge, the Village of Montebello, and the Village of Pomona (the “Chestnut Ridge Action”). In the Wesley Hills Action, the plaintiffs (religious corporations and individuals affiliated with the Chofetz Chaim sect of Orthodox Judaism) claim the Villages (that were plaintiffs in Chestnut Hill Action) discriminated against them in attempting to stop development of a proposed religious educational center and multi-family housing development, and in allegedly colluding to bring the Chestnut Ridge Action.

 The Chestnut Ridge Action

The Chestnut Ridge Action was filed after the Town of Ramapo issued a negative declaration under the State Environmental Quality Review Act (“SEQRA”) for development plans prepared by a predecessor to a Wesley Hills plaintiff, which included a religious school, community center, and 60 units of multi-family housing. The development, known as Kiryas Radin, was proposed to be built on the former U.S. Army Nike Ajax antiaircraft missile site (Nike Battery NY-99) operational from 1956 to 1963 (the “Nike Site”). The Chestnut Ridge Action also concerned the Villages’ challenges to the Town of Ramapo’s adoption of an Adult Student Housing Law (“ASHL”), which allowed more-dense housing development if accessory to a postsecondary educational use. The ASHL increased the development potential of the Nike Site, which under the previous single-family residential zoning was limited to eight housing units.

 In the Chestnut Ridge Action, the trial court granted the plaintiffs a preliminary injunction to prevent the Kiryas Radin development. However, the Chestnut Ridge plaintiffs were unable to post the court-mandated financial assurance and the developers proceeded to complete the project. Two years later, the New York State Appellate Division considered the case (appealed based on the Villages’ standing) and issued another injunction that prohibited the occupation of Kiryas Radin. On remand, the lower court dismissed all charges based on adoption of the ASHL but found that Ramapo violated SEQRA when it failed to take a “hard look” at the potential environmental impacts of Kiryas Radin. Ramapo appealed that decision and the Appellate Division reversed the court’s SEQRA finding and dismissed all of the plaintiffs’ claims without ruling on the Chestnut Ridge defendants’ counterclaims.

 The Wesley Hills Action

 In the Wesley Hills decision, the court explains that “[t]he heart of Plaintiffs’ case is their allegation that Defendants colluded to file the Chestnut Ridge action….” Therefore, the court determined that the Wesley Hills plaintiffs’ claims were dependent on whether there was an equal protections violation. The Wesley Hills defendants would have to show that the Chestnut Ridge plaintiffs (now the Wesley Hills defendants) did not bring legal challenges against development projects that were not run by members of the Hasidic community but similar in all other material respects. Since filing the Chestnut Ridge Action was a protected First Amendment activity, the Wesley Hills defendants (formerly the Chestnut Hill plaintiffs) were entitled to qualified immunity unless their actions violated the Equal Protection Clause.also b/c I comments on your last post a

 As an initial matter, the court dismissed the Wesley Hills plaintiffs’ contention that the Second Circuit’s decision in, Fortress Bible Church v. Feiner, 694 F. 3d 208 (2d Cir. 2012) (discussed here) eliminated the requirement that plaintiffs provide evidence of a similarly situated comparator if defendants inappropriately employed SEQRA. The court did not agree, holding that Fortress Bible considered the question of when SEQRA review constitutes the implementation of a land use regulation under RLUIPA, and did not consider or in any way limit Defendants’ qualified immunity when pursuing First Amendment-protected activity.

 As to the merits of the equal protection claim, the court found that the Wesley Hills plaintiffs failed to present any evidence of a comparator development “similarly situated in all material respects” to Kiryas Radin. On that basis alone, plaintiffs’ equal protect claims failed. The court, however, also found that the Wesley Hills plaintiffs failed to raise an issue of material fact with respect to the Villages’ discriminatory intent, although the court did not question the sincerity of plaintiffs’ allegations:

 “Having lived and worked with residents and officials from the Villages during these many years, Plaintiffs firmly believe that they have been targeted because of their religious beliefs, even if they cannot point to discriminatory statements by Defendants. The Court is sympathetic: who would know better than the Parties in this case whether the current dispute is a product of the decades-long tension between the Hasidic community and the Villages of Ramapo? However, the Court’s role in evaluating competing motions for summary judgment is not to take the Plaintiffs (or Defendants) at their word, however sure Plaintiffs might be; rather, the Court must evaluate the evidence, if any, in support of their claims. Because Plaintiffs have offered almost no evidence in support of their claims, and certainly not enough to raise a contested issue of material fact, the Court must grant summary judgment in favor of Defendants.”

Finally, the court considered the Wesley Hills plaintiffs’ substantial burden [§2000cc(a)(1)] and nondiscrimination [§2000cc(b)(2)] RLUIPA claims, which were initially raised as counterclaims in the Chestnut Ridge Action. Applicability of these RLUIPA claims, however, hinged on two questions: (1) in filing the Chestnut Ridge Action, did the Defendants “impose or implement” a land use regulation, and (2) if not, did Defendants take a “government action” in violation of RLUIPA? The court answered each question in the negative, finding that the application of RLUIPA did not reach so far. Since Ramapo was the “involved agency” (as defined by SEQRA) that actually implemented and controlled SEQRA review of Kiryas Radin, it was the only entity that could have “implemented” such regulation, as opposed to the individual village defendants. Because Congress made no mention of “enforcing” or “litigation relating to” land use regulation in the text of RLUIPA, the court reasoned that its holding was consistent with the intent and plain language of RLUIPA. Likewise, the court did not find that RLUIPA’s mention of a “government practice” under the section of that statute that governs judicial relief [§2000cc-2] could be interpreted to define a distinct cause of action. The use of the term “government practice” in §2000cc-2 merely refers to the types of violations outlined in §2000cc.

 Bernstein v Village of Wesley Hills, 2015 WL 1399993 (SDNY 3/27/2015)

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