Posted by: Patricia Salkin | January 19, 2020

Second Circuit Court of Appeals Holds Village Ordinances Had a Discriminatory Effect on Orthodox Rabbinical College

This post was authored by Matthew Loeser, Esq.

In 2004, Congregation Rabbinical College of Tartikov, Inc. (“TRC”) purchased approximately 100 acres of land in the Village of Pomona, a small suburban village of about 3,200 people. In 2007, a local group published an article purporting to reveal that TRC’s plan was to build nine large apartment buildings to house 1,000 students and their families, for a capacity of 4,500 people, as well as a school building. In response, the Village board enacted two amendments to its land use laws limiting or outright prohibiting whatever development TRC ultimately might seek to build. TRC and future students and faculty (collectively, “Tartikov”) filed this action against the Village and its board of trustees, and sought to declare these two amendments unconstitutional. Tartikov also challenged two other amendments that had been passed earlier. After a bench trial, the district court found that all four zoning law amendments were tainted by religious animus, enjoined their enforcement, and entered a broad injunction sweeping away or modifying New York State and local laws that otherwise would apply. The Village appealed this decision.

At the outset, the court addressed the matter of standing. First, Tartikov’s equal protection claims under the federal and New York constitutions and its nondiscrimination and equal terms claims under RLUIPA were all based on the alleged invasion of Tartikov’s right to be free from state discrimination or unequal treatment under the law on the basis of religion. The court found “stigmatizing members of a disfavored group as innately inferior and therefore as less worthy participants in the political community” was an actual and concrete injury sufficient to confer standing. Thus, Tartikov had standing to pursue equal protection claims under the Fourteenth Amendment of the federal and New York constitutions as well as nondiscrimination and equal terms claims under RLUIPA. Next, Tartikov’s First Amendment free exercise, free speech, and free association claims under the federal and New York constitutions, RLUIPA substantial burden and exclusion and limits claims, FHA claims, and common law claims related to the Berenson doctrine all arose from the alleged infringement of the free exercise of its religion by regulation of the use of its property. However, because Tartikov never submitted a formal proposal for the building project, applied for a permit, or engaged in any other conduct that would implicate or invoke the operation of the challenged zoning laws, the court lacked jurisdiction over this second group of claims.

While the court agreed with the district court that the timing of the 2001 Law was “in direct response to YSV’s desire to build an Orthodox yeshiva on the Subject Property,” it found the Village’s choice to act in response to YSV’s informal proposal did not speak as to whether that choice was motivated by a positive, negative, or neutral reaction to YSV, its religious character, or its project. Mark Healey, the FPC representative present at the meeting regarding Local Law No. 1 of 2001, stated the Village could craft requirements that “wouldn’t restrict [YSV] from doing what they want to do but … would assure the Village that they’re not going to go down the road and develop a lot more in the future.” The district court premised its animus holding also on the Village’s lack of opposition in 1999 to an assisted-living facility to be built on the “Anna Mann” property; however, the record did not contain any evidence as to the size, resident population, or scope of the proposed facility. As such, there was no basis for comparing the yeshiva proposal with the assisted living facility. The court next found that Local Law No. 5 of 2004, in fact liberalized several features of the then existing zoning law by: allowing dormitories, easing some restrictions related to acreage and road access, and not adding any new restrictions and did nothing to tighten existing restrictions or requirements. Accordingly, the court reversed the finding of discriminatory animus as to these two Local Laws.

Regarding the Local Laws Nos. 1 and 5, passed in 2007, the court first noted that by this time Sanderson rose from deputy mayor to mayor and Louie and Yagel, who had not previously served on the board, became trustees. All three of these individuals ran on a platform opposing the TRC project. Additionally, the 2007 Dormitory Law and the 2007 Wetlands Law differed from the 2004 Law in that both 2007 Laws tightened, rather than loosened, restrictions on building schools in the Village. Viewing the record as a whole, including “the series of events” leading up to the adoption of the 2007 Dormitory Law, the “context in which the decisions” regarding the law were made, and “statements made by the decision making body and community members,” the court declined to find that the district court clearly erred in finding that religious animus was a “significant factor in the position taken by those to whom the decision-makers were knowingly responsive.” Thus, notwithstanding that there was little or no direct evidence of any personal religious bias on the part of the trustees who passed these laws, the court found no clear error in the district court’s findings with respect to the 2007 Dormitory and Wetlands Laws.

The court next analyzed whether the district court clearly erred in holding that the 2007 Dormitory and Wetlands laws had a discriminatory effect on Tartikov. The court found there was sufficient basis in the record to conclude that on-campus housing of the nature Tartikov sought was important to the exercise of Tartikov’s faith as it would allow students to be near their families while maintaining a diligent study schedule. As to the 2007 Wetlands Law, the district court found that its two provisions working in tandem prevented construction of a TRC-like project anywhere in Pomona. Specifically, the 10 net acre minimum lot size for educational institutions ensured that TRC’s lot was the only site in Pomona large enough for the proposed college, and the required 100-foot buffer between constructed features and wetlands guaranteed TRC could not build on the property, since the only suitable location for a driveway fell within 100 feet of wetlands. Accordingly, the court upheld the district court’s holding that the 2007 Dormitory and Wetlands Laws had a discriminatory effect on Tartikov.

As to the remedy imposed by the district court, the injunction required the Village to exempt TRC from any special permit or variance requirements, process its application expeditiously, and perform “segmented review” of the application because “such a review will be more protective of the environment.” The district court also prohibited the Village from enacting laws similar to the four challenged laws and retained jurisdiction over any and all additional remedies sought by Tartikov consistent with the judgment and injunctions. Here, however, the requirement that the agency tasked with reviewing any TRC application engage in segmented review would take away authority that New York delegates to the reviewing agency. Moreover, much of the injunctive relief was purely speculative as TRC had not yet submitted an application for its rabbinical college, and the Village had not taken any action suggesting it would fail to follow the law in processing its application. Accordingly, the court affirmed the enjoinment from enforcing the 2007 Wetlands and Dormitory Laws, but vacated the majority of the additional relief imposed by the district court.

Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, 945 F.3d 83 (2nd Cir. CA 2019)


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Categories

%d bloggers like this: