Second Circuit Upholds RLUIPA Verdict Against the Town of Greenburgh

The Second Circuit's recent decision in Fortress Bible Church v. Feiner, 694 F.3d 208, establishes that the Religious Land Use and Institutionalized Persons Act (RLUIPA) applies to decisions made by municipalities in the course of New York's environmental review process. In a scathing decision after trial, then-Judge Stephen Robinson of the Southern District had ruled that the Town of Greenburgh, in Westchester County, violated RLUIPA when it made a finding under New York's State Environmental Quality Review Act (SEQRA) that the proposed construction of a church could not proceed. Fortress Bible Church v. Feiner, 734 F. Supp. 2d 409.

The district court reached this conclusion, in large part, by finding that the “majority” of the Town's witnesses lacked credibility. The court went so far as to find “not only the admitted destruction of probative evidence, but the existence of evidence relevant to the issues before this Court that Defendants never produced to Plaintiffs. Outrageously, Defendants attempted to enter such previously undisclosed documents into evidence during trial.” The court therefore held “that the conduct of Defendants warrants both an adverse inference based on spoliation of evidence and sanctions.”

The Town Appeals

Thereafter, the Town appealed to the Second Circuit. That court, in an opinion by Judge John Walker, affirmed the decision of the district court, which had ordered broad relief including: 1) annulling the previously adopted SEQRA findings statement; 2) ordering that the church's site plan be deemed approved for SEQRA purposes and barring any further SEQRA review; 3) ordering that certain landscaping and parking island requirements be waived; 4) directing the Zoning Board of Appeals to grant a requested variance; and 5) ordering the Town to issue a building permit. In addition, the district court enjoined the Town from further interference with the church's project and imposed sanctions for spoliation of evidence.

On appeal, the Town raised several issues, including the argument that since SEQRA is generally applicable to numerous categories of government actions, it is not a land-use regulation within the meaning of RLUIPA and therefore a SEQRA determination is not subject to RLUIPA. Initially the Court of Appeals agreed that ” '
SEQRA itself is not a zoning law within the meaning of RLUIPA. SEQRA is not concerned with the division of land into zones based on use. It is focused on minimizing the adverse environmental impact of a wide range of discretionary government actions, many of which are totally unrelated to zoning or land use. ' Thus, the Town's use of the SEQRA process did not automatically implicate RLUIPA.”

However, the court reached the conclusion that SEQRA, despite not being a land-use regulation, falls within the ambit of actions subject to RLUIPA because the latter addresses the “application” of land-use laws (42 U.S.C. ' 2000cc-5(5)). The Court of Appeals noted that while:

SEQRA by itself is not a zoning law, in this case the Town used the SEQRA review process as its vehicle for determining the zoning issues related to the Church's land use proposal. … to hold that RLUIPA is inapplicable to what amounts to zoning actions taken in the context of a statutorily mandated environmental quality review would allow towns to insulate zoning decisions from RLUIPA review. A town could negotiate all of a project's zoning details during a SEQRA review and completely preempt its normal zoning process. These decisions would then be immune to RLUIPA challenge. We decline to endorse a process that would allow a town to evade RLUIPA by what essentially amounts to a re-characterization of its zoning decisions.

Unimpressed

The court was equally unimpressed with the Town's argument that its actions did not place a substantial burden on religious exercise. Noting that the Town's actions were more than denial of a specific proposal but amounted to a complete denial of the ability to construct a church, the court emphasized the toxic fact pattern in this case:

Our conclusion that the Church was substantially burdened is bolstered by the arbitrary, capricious, and discriminatory nature of the Town's actions, taken in bad faith. ' The Town attempted to extort from the Church a payment in lieu of taxes, it ignored and then replaced its Planning Commissioner when he advocated on the Church's behalf, and Town staff intentionally destroyed relevant evidence.

In another facet of the opinion, the court upheld the district court's finding that the church was a “class of one” for purposes of its Equal Protection claim. The court analyzed other applications raised by the church as comparisons. In each instance, the court found that the Town had allowed development to move forward without addressing one or more of the same issues raised by the Town in its SEQRA review of the church's project. The court therefore concluded that, while the Town claimed its decision was based upon several specific issues, the church presented evidence that the comparison projects were treated differently by the Town with respect to the same issues or concerns. The court therefore held the Town did not have “any plausible explanation for the disparity,” and as a result the Equal Protection claim was proper.

Conclusion

This strongly worded decision continues to raise the bar for municipalities in reviewing applications by religious institutions. Clearly, municipalities must apply objective criteria to any land-use review or face the consequences.

Steven M. Silverberg, a member of this newsletter's Board of Editors, is a partner in Silverberg Zalantis LLP, where he concentrates his practice in municipal and land use law and related litigation. He blogs on related topics at http:/blog.szlawfirm.net/.

The Second Circuit's recent decision in Fortress Bible Church v. Feiner , 694 F.3d 208, establishes that the Religious Land Use and Institutionalized Persons Act (RLUIPA) applies to decisions made by municipalities in the course of New York's environmental review process. In a scathing decision after trial, then-Judge Stephen Robinson of the Southern District had ruled that the Town of Greenburgh, in Westchester County, violated RLUIPA when it made a finding under New York's State Environmental Quality Review Act (SEQRA) that the proposed construction of a church could not proceed. Fortress Bible Church v. Feiner , 734 F. Supp. 2d 409.

The district court reached this conclusion, in large part, by finding that the “majority” of the Town's witnesses lacked credibility. The court went so far as to find “not only the admitted destruction of probative evidence, but the existence of evidence relevant to the issues before this Court that Defendants never produced to Plaintiffs. Outrageously, Defendants attempted to enter such previously undisclosed documents into evidence during trial.” The court therefore held “that the conduct of Defendants warrants both an adverse inference based on spoliation of evidence and sanctions.”

The Town Appeals

Thereafter, the Town appealed to the Second Circuit. That court, in an opinion by Judge John Walker, affirmed the decision of the district court, which had ordered broad relief including: 1) annulling the previously adopted SEQRA findings statement; 2) ordering that the church's site plan be deemed approved for SEQRA purposes and barring any further SEQRA review; 3) ordering that certain landscaping and parking island requirements be waived; 4) directing the Zoning Board of Appeals to grant a requested variance; and 5) ordering the Town to issue a building permit. In addition, the district court enjoined the Town from further interference with the church's project and imposed sanctions for spoliation of evidence.

On appeal, the Town raised several issues, including the argument that since SEQRA is generally applicable to numerous categories of government actions, it is not a land-use regulation within the meaning of RLUIPA and therefore a SEQRA determination is not subject to RLUIPA. Initially the Court of Appeals agreed that ” '
SEQRA itself is not a zoning law within the meaning of RLUIPA. SEQRA is not concerned with the division of land into zones based on use. It is focused on minimizing the adverse environmental impact of a wide range of discretionary government actions, many of which are totally unrelated to zoning or land use. ' Thus, the Town's use of the SEQRA process did not automatically implicate RLUIPA.”

However, the court reached the conclusion that SEQRA, despite not being a land-use regulation, falls within the ambit of actions subject to RLUIPA because the latter addresses the “application” of land-use laws (42 U.S.C. ' 2000cc-5(5)). The Court of Appeals noted that while:

SEQRA by itself is not a zoning law, in this case the Town used the SEQRA review process as its vehicle for determining the zoning issues related to the Church's land use proposal. … to hold that RLUIPA is inapplicable to what amounts to zoning actions taken in the context of a statutorily mandated environmental quality review would allow towns to insulate zoning decisions from RLUIPA review. A town could negotiate all of a project's zoning details during a SEQRA review and completely preempt its normal zoning process. These decisions would then be immune to RLUIPA challenge. We decline to endorse a process that would allow a town to evade RLUIPA by what essentially amounts to a re-characterization of its zoning decisions.

Unimpressed

The court was equally unimpressed with the Town's argument that its actions did not place a substantial burden on religious exercise. Noting that the Town's actions were more than denial of a specific proposal but amounted to a complete denial of the ability to construct a church, the court emphasized the toxic fact pattern in this case:

Our conclusion that the Church was substantially burdened is bolstered by the arbitrary, capricious, and discriminatory nature of the Town's actions, taken in bad faith. ' The Town attempted to extort from the Church a payment in lieu of taxes, it ignored and then replaced its Planning Commissioner when he advocated on the Church's behalf, and Town staff intentionally destroyed relevant evidence.

In another facet of the opinion, the court upheld the district court's finding that the church was a “class of one” for purposes of its Equal Protection claim. The court analyzed other applications raised by the church as comparisons. In each instance, the court found that the Town had allowed development to move forward without addressing one or more of the same issues raised by the Town in its SEQRA review of the church's project. The court therefore concluded that, while the Town claimed its decision was based upon several specific issues, the church presented evidence that the comparison projects were treated differently by the Town with respect to the same issues or concerns. The court therefore held the Town did not have “any plausible explanation for the disparity,” and as a result the Equal Protection claim was proper.

Conclusion

This strongly worded decision continues to raise the bar for municipalities in reviewing applications by religious institutions. Clearly, municipalities must apply objective criteria to any land-use review or face the consequences.

Steven M. Silverberg, a member of this newsletter's Board of Editors, is a partner in Silverberg Zalantis LLP, where he concentrates his practice in municipal and land use law and related litigation. He blogs on related topics at http:/blog.szlawfirm.net/.