18-0869-cv (L) Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 _____________ 4 5 August Term 2018 6 7 (Argued: April 18, 2019 | Decided: December 20, 2019) 8 9 Docket Nos. 18-0869-cv(L), 18-1062-cv(XAP) 10 11 CONGREGATION RABBINICAL COLLEGE OF TARTIKOV, INC., RABBI 12 MORDECHAI BABAD, RABBI WOLF BRIEF, RABBI HERMAN KAHANA, 13 RABBI MEIR MARGULIS, RABBI MEILECH MENCZER, RABBI JACOB 14 HERSHKOWITZ, RABBI CHAIM ROSENBERG, RABBI DAVID A. MENCZER, 15 16 Plaintiffs-Appellees-Cross-Appellants, 17 18 19 RABBI GERGELY NEUMAN, RABBI KOLEL BELZ, of Monsey, RABBI ARYEH 20 ROYDE, RABBI AKIVA POLLACK, 21 22 Plaintiffs, 23 24 -v.- 25 26 VILLAGE OF POMONA, NY, BOARD OF TRUSTEES OF THE VILLAGE OF 27 POMONA, NY, NICHOLAS L. SANDERSON, as Mayor, IAN BANKS, as 28 Trustee and in his official capacity, ALMA SANDERS-ROMAN, as Trustee and in 29 her official capacity, RITA LOUIE, as Trustee and in her official capacity, BRETT 30 YAGEL, as Trustee and in his official capacity, 31 32 33 Defendants-Appellants-Cross-Appellees. 34 35 _____________ 18-0869-cv (L) 2 Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona

1 2 Before: 3 WESLEY AND CHIN, Circuit Judges; and KAPLAN, District Judge.* 4 5 Congregation Rabbinical College of Tartikov, Inc. and future students 6 and faculty sued the Village of Pomona and several village officials, challenging four 7 amendments to the Village of Pomona’s zoning law as violations of federal and New 8 York law. Tartikov argued principally that Pomona adopted the challenged laws 9 based on religious animus against Tartikov. The United States District Court for the 10 Southern District of New York (Karas, J.) dismissed Tartikov’s complaint in part and 11 later resolved certain claims in the defendants’ favor on a motion for summary 12 judgment. The remaining claims proceeded to a bench trial, which concluded with 13 a verdict for Tartikov on those claims. The defendants appeal from the final 14 judgment, while Tartikov cross-appeals to challenge the earlier orders dismissing 15 certain of its claims and granting summary judgment to the defendants on others. 16 17 Tartikov lacks Article III standing to pursue some of its claims. We 18 VACATE the judgment with respect to those claims and REMAND with 19 instructions for dismissal. As to the remaining claims that went to trial, we 20 REVERSE the judgment to the extent the claims invoke two of the challenged laws, 21 but we AFFIRM insofar as the claims invoke the remaining two. Finally, we 22 AFFIRM with respect to the dismissal and summary judgment orders challenged 23 on cross-appeal. 24 25 _____________ 26 27 THOMAS J. DONLON, Robinson & Cole LLP, Stamford, CT (John F. X. 28 Peloso Jr., Robinson & Cole LLP, Stamford, CT; Marci A. 29 Hamilton, Washington Crossing, PA, on the brief), for Defendants- 30 Appellants-Cross-Appellees. 31

*

Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. 1 ROMAN STORZER, Washington, DC (Joseph A. Churgin, Donna C. Sobel, 2 Savad Churgin, Nanuet, NY; John G. Stepanovich, Stepanovich 3 Law, PLC, Virginia Beach, VA, on the brief), for Plaintiffs-Appellees- 4 Cross-Appellants. 5 6 _____________

7 KAPLAN, District Judge:

8 This case poses difficult and in some respects subtle questions.

9 Educational and religious institutions, as owners and users of real estate, are

10 generally subject to local land use regulation. But they play unique roles in our

11 society. Hence, our laws afford them some special treatment with respect to such

12 regulation. Moreover, religious institutions enjoy the protection of the First and

13 Fourteenth Amendments and federal legislation, each of which, in appropriate

14 circumstances, trumps local land use law.

15 Given the importance in our free society of education, religion, and the

16 usually legitimate desires of communities to regulate the manner in which the land

17 within their boundaries is developed and used, conflicts arise when these interests

18 come into tension. In resolving such conflicts, courts must differentiate among

19 opposition to proposed land uses based on (1) legitimate development concerns like

20 traffic volume, density, and sufficiency of municipal infrastructure, (2) bias against

21 the religious faith or practices of the developer or of likely residents of new 2

1 development, whether overt or hidden by legitimate-seeming pretext, and (3) mixed

2 motives. These appeals reflect one such conflict.

3 In 2004, Congregation Rabbinical College of Tartikov, Inc. (“TRC”)

4 purchased about 100 acres of land in the Village of Pomona, New York (“Pomona”

5 or the “Village”), a small suburban village of about 3,200 people. As its name

6 indicates, TRC hoped to use the property to build a school to educate rabbinical

7 judges. But TRC submitted no concrete development proposals nor sought any

8 zoning or construction approvals in the ensuing years.

9 In January 2007, a local group published an article purporting to reveal

10 that TRC’s plan was to build nine large apartment buildings to house 1,000 students

11 and their families – a total of as many as 4,500 people – as well as a school building.

12 This provoked local opposition. Soon after, the Village board enacted two

13 amendments to its land use laws limiting or outright prohibiting whatever

14 development TRC ultimately might seek to build.

15 TRC and future students and faculty (collectively, “Tartikov”) filed this

16 action against the Village and its board of trustees seeking to declare

17 unconstitutional the two amendments enacted after its plans became known. In

18 addition, it challenged two other amendments that had been passed earlier. After 3

1 a bench trial, the district court found that all four zoning law amendments were

2 tainted by religious animus, enjoined their enforcement, and entered a broad

3 injunction sweeping away or modifying for these plaintiffs New York State and local

4 laws that otherwise would apply. The Village challenges the decision below. Its

5 central contention is that the findings of religious animus were clearly erroneous.

6 Tartikov cross appeals from a number of pretrial rulings that limited the scope of its

7 claims.

8 After careful consideration of the extensive record, we decline to

9 overturn the district court’s findings that religious animus motivated the two zoning

10 amendments passed after the plaintiffs’ wishes became known and thus affirm the

11 injunction barring their enforcement. But we respectfully conclude that there was

12 insufficient evidence to support such a finding as to either of the two earlier zoning

13 amendments and therefore reverse that portion of the judgment. We conclude also

14 that the injunctive relief went further than was appropriate and modify those

15 aspects of the judgment as well. We affirm as to the cross-appeal.

16

17

18 4

1 FACTS

2 The governmental and legal context in which the amendments to the

3 Pomona zoning law ordinance were enacted is important to a full understanding of

4 this case. We therefore begin by sketching that framework.

5

6 I. The Context

7 A. Local Government in New York

8 New York State is home to over 1,600 local governments.1 The entire

9 state is divided among 62 counties, each of which has its own local government.2

10 Each of the 57 counties outside New York City is divided into towns and in some

11 instances one or more cities, each of which also has its own local government.3

12 There are, in addition, hundreds of villages throughout the state, some coextensive

13 with towns but most within larger towns. As is now a familiar motif, each has its

1

Division of Local Government Services, N.Y. DEP’T OF STATE, https://www.dos.ny.gov/lg/localgovs.html. 2

Id. 3

Id. 5

1 own government.4 Unlike counties, cities, and towns, New York’s villages “exist at

2 the discretion of [their] residents”; they “can be created or dissolved by local

3 initiative.”5 According to New York’s Department of State’s Division of Local

4 Government Services, one reason town residents might create a village is “a

5 difference in development philosophies of citizens and town officials.”6

6 Village governments draw their authority to enact and enforce zoning

7 regulations from numerous sources, including the Statute of Local Governments,7

8 the Municipal Home Rule Law,8 and the Village Law.9 A village exercises that

9 authority, as well as the authority to enact other legislation, through a board of

4

Id. 5

Id. 6

Id. 7

1 Patricia E. Salkin,

(hereinafter “Salkin”) (citing N.Y. STATUTE OF LOCAL GOVERNMENTS, § 10(6)). 8

Id. § 2:05 (citing

). 9

§§ 2:05, 2:07, 2:11 (citing

). Under the Municipal Home Rule Law, villages may amend and supersede the Village Law as it applies to them.

(citing N.Y. MUNICIPAL HOME RULE LAW § 10e(3)). 6

1 trustees,10 which typically consists of an elected mayor and four elected trustees.11

2 The Village Law gives a board of trustees the authority to regulate various aspects

3 of land use within its domain.12 When a board of trustees regulates land use, it is

4 obliged to follow a “comprehensive plan.”13 A comprehensive plan identifies the

5 goals, policies, and instruments for the short and long term growth and

6 development of the village.14

7

8 B. Local Zoning Ordinances and Other Land Use Controls

9 Village and other local governments in New York exercise their land

10 use authority through land use controls, the most common type of which is a zoning

11 ordinance.15 Zoning typically entails dividing a municipality’s entire territory into

10

. 11

§ 3-301. The board of trustees has the power to modify the number of trustee seats. Id. 12

Id. § 7-722. 13

Id. § 7-704. 14

Id. § 7-722(2)(a), (f)-(g). 15

Salkin § 1:10. 7

1 districts and imposing land use restrictions within them.16 Zoning ordinances can

2 achieve many goals related to community planning, among the most common of

3 which are prescribing minimum lot and maximum building sizes that control the

4 density of development and permitting or proscribing the use of land in each zoning

5 district for specific purposes such as agricultural, commercial, or residential.17

6 Numerous federal and state laws limit the exercise of land use control

7 powers.18 One important limitation is the New York State Environmental Quality

8 Review Act (“SEQRA”).19 SEQRA requires state agencies, including municipalities,

9 “to incorporate the consideration of environmental factors into the . . . planning,

10 review[,] and decision-making processes.”20 It requires that a municipality

11 considering a significant land use control ordinarily must prepare or request an

16

Id. 17

Id. §§ 6:04, 6:09, 6:11. 18

See generally Salkin ch. 3-5. 19

6

. 20

§ 617.1(c). 8

1 environmental impact statement (“EIS”) early in the planning process.21 An EIS is

2 a document that weighs the “social, economic[,] and environmental factors” of a

3 municipality’s proposed decision or regulation, which includes considering

4 alternative actions and mitigating factors.22 After completing an EIS, each agency

5 involved in the planning process must issue a findings statement that provides a

6 rationale for its decision in light of the EIS.23

7

8 C. Municipal Regulation of Land Used for Religious and Educational Purposes

9 Land use regulation becomes more complicated when affected property

10 belongs to religious or educational institutions – entities that, as noted previously,

11 enjoy certain legal rights unavailable to ordinary landowners. As TRC is a religious

12 educational institution, the terrain here is particularly rugged.

21

Id. A municipality need not prepare a full EIS if it makes or receives a negative declaration. See id. §§ 617.7, 617.12. A negative declaration is “a written determination by a lead agency that the implementation of the action as proposed will not result in any significant adverse environmental impacts.” Id. § 617.2(z). Negative declarations often are used with respect to minor development. 22

Id. § 617.2(n). 23

Id. § 617(p). 9

1 The New York Court of Appeals thoroughly surveyed this landscape

2 in Cornell University v. Bagnardi.24 Beginning with a history it deemed essential to

3 understanding the respective positions of religious schools and municipal land use

4 regulators, the court emphasized the “special treatment” that schools and churches

5 often have enjoyed “with respect to residential zoning ordinances.”25 This “favored

6 status,” which has included “expan[sion] into neighborhoods where nonconforming

7 uses would otherwise not have been allowed,” was unobjectionable in the nation’s

8 early years.26 But with growing populations and the advent of the automobile,

9 citizens began viewing schools – particularly universities, which were the subject of

10 the Bagnardi court’s discussion – as disturbances, rather than benefits to the

11 neighborhood.27 “With this change in attitude, courts were thrust into the role of

12 protecting [religious and] educational institutions from community hostility.”28

24

(1986). 25

. 26

. 27

28

10

1 New York courts did this in several ways. On occasion, they struck

2 down “[z]oning ordinances that imposed limitations on the construction of public

3 schools” or that interfered with the First Amendment rights of religious schools.29

4 On others, they “held that schools, public, parochial[,] and private, by their very

5 nature, singularly serve the public’s welfare and morals.”30 Accordingly, the New

6 York Court of Appeals has concluded that “the total exclusion of such institutions

7 from a residential district serves no end that is reasonably related to the morals,

8 health, welfare[,] and safety of the community.”31 “[T]otal exclusion is beyond the

9 scope of the localities’ zoning authority.”32

10 This did not mean that schools and religious institutions were exempt

11 from zoning rules – a result that would have “render[ed] municipalities powerless

12 in the face of a religious or educational institution’s proposed expansion, no matter

29

30

31

at 594 (citing Diocese of Rochester v. Planning Bd. of Town of Brighton,

(1956)). 32

11

1 how offensive, overpowering[,] or unsafe to a residential neighborhood.”33 Bagnardi

2 explained how local authorities should balance the competing interests at stake:

3 “The controlling consideration in reviewing the request of a school or 4 church for permission to expand into a residential area must always be 5 the over-all impact on the public’s welfare. Although the special 6 treatment afforded schools and churches stems from their presumed 7 beneficial effect on the community, there are many instances in which 8 a particular educational or religious use may actually detract from the 9 public’s health, safety, welfare[,] or morals. In those instances, the 10 institution may be properly denied. There is simply no conclusive 11 presumption that any religious or educational use automatically 12 outweighs its ill effects. The presumed beneficial effect may be 13 rebutted with evidence of a significant impact on traffic congestion, 14 property values, municipal services[,] and the like. 15 16 “Thus, educational and religious uses which would unarguably be 17 contrary to the public’s health, safety[,] or welfare need not be 18 permitted at all. . . . Such uses, which are clearly not what the court had 19 in mind when it stated that traffic and similar problems are outweighed 20 by the benefits a church or school brings, are unquestionably within the 21 municipality’s police power to exclude altogether. Even religious and 22 educational institutions must accommodate to factors directly relevant 23 to public health, safety[,] or welfare, inclusive of fire and similar 24 emergency risks, and traffic conditions insofar as they involve public 25 safety. 26 27 “Less extreme forms of expansion that are nonetheless obnoxious to the 28 community’s residents, of course, require a more balanced approach 29 than total exclusion. In Matter of Westchester Reform Temple v. Brown, the 30 court recognized that considerations which may wholly justify the 31 exclusion of commercial structures from residential areas may be

33

12

1 considered for the purpose of minimizing, insofar as practicable, the 2 impairment of surrounding areas or the danger of traffic hazards. A 3 special permit may be required and reasonable conditions directly 4 related to the public’s health, safety[,] and welfare may be imposed to 5 the same extent that they may be imposed on noneducational 6 applicants. Thus, a zoning ordinance may properly provide that the 7 granting of a special permit to churches or schools may be conditioned 8 on the effect the use would have on traffic congestion, property values, 9 municipal services, the general plan for development of the 10 community, etc. The requirement of a special permit application, 11 which entails disclosure of site plans, parking facilities, and other 12 features of the institution’s proposed use, is beneficial in that it affords 13 zoning boards an opportunity to weigh the proposed use in relation to 14 neighboring land uses and to cushion any adverse effects by the 15 imposition of conditions designed to mitigate them. These conditions, 16 if reasonably designed to counteract the deleterious effects on the 17 public’s welfare of a proposed religious or educational use should be 18 upheld by the courts, provided they do not, by their cost, magnitude[,] 19 or volume, operate indirectly to exclude such uses altogether.”34

20 The foregoing, of course, was an explication principally of New York

21 law, which is informed with respect to religious land use by constitutional principles

22 applicable to religious institutions. But to be absolutely clear, the Supremacy Clause

23 of the Constitution demands, as it always has done, that state law yield to the

24 imperatives of more demanding federal law including the First and Fourteenth

25 Amendments.

26

34

(citations, brackets, and quotation marks omitted). 13

1 II. Facts

2 A. Pomona and Its Zoning Ordinance

3 The Village of Pomona was incorporated in Rockland County, New

4 York in 1967.35 It is governed by a board of trustees, which consists of the mayor,

5 deputy mayor, and three trustees.36 At the times relevant here, the entire Village

6 was designated as an R-40 residential zoning district.37 Thus, the entire Village was

7 zoned to permit only single-family residential development on lots of at least 40,000

8 square feet.38

9

10

11

12

13

35

Joint Pretrial Order Stipulations of Fact ¶¶ 3, 8 [A-732-33]. 36

Id. ¶ 7 [A-733]. 37

Joint Pretrial Order Stipulations of Fact ¶ 5 [A-732]. 38

Ulman Affidavit [DX 2000] ¶ 5. 14

1 B. The Subject Property and Pomona’s Zoning Ordinance

2 1. Camp Dora and Yeshiva Spring Valley

3 The 100 acres at issue here are on the southwestern side of Pomona. For

4 years it had been the site of a summer camp known as Camp Dora.39 At some point

5 prior to December 1999 – the record does not indicate when – an entity named

6 Yeshiva Spring Valley (“YSV”) acquired the parcel.40 Initially, YSV continued

7 operating a summer camp on the site, but its goal was to build a yeshiva41 on the

8 property.42

9

10

11

39

Joint Pretrial Order Stipulations of Fact ¶¶ 3, 17 [A-732-33]. 40

Village of Pomona Planning Board Meeting Minutes, Dec. 15, 1999 at 34-35 [TE- 585-86]. 41

A yeshiva is a Jewish educational institution that educates students at the elementary, middle, and high school levels. Some, though not all, are Orthodox institutions. Orthodox Judaism is a branch of Judaism that teaches strict adherence to rabbinical interpretations of holy scripture. 42

Village of Pomona Planning Board Meeting Minutes, Dec. 15, 1999 at 35-36 [TE- 586-87]. 15

1 a. December 1999 Informal Planning Board Meeting

2 On December 15, 1999, a representative of YSV, Rabbi Fromowitz, met

3 with the Village planning board, the members of which then were Mel Cool, Alan

4 Lamer, Alma Roman, Joy Shulman, and Nik Winter.43 Also present was Mark

5 Healey, a representative of Frederick P. Clark Associates, Inc. (“FPC”), then the

6 Village’s planning consultant.44

7 YSV did not present the planning board with any specific building

8 plans or application. Rather, it made an informal presentation regarding the yeshiva

9 it hoped to apply to build in the future.45 Rabbi Fromowitz explained that YSV

10 wished to build a primary school for children in kindergarten through the eighth

11 grade and a preschool for younger children.46 The primary school would be

43

Id. at 1 [TE-583]. 44

See id.; Tr. Ulman Trial Testimony, 753:4-10 [A-1281]. 45

This mode of proceeding apparently is frequent in at least some areas in New York State. 46

Village of Pomona Planning Board Meeting Minutes, Dec. 15, 1999 at 33, 38 [TE- 584, 589]. 16

1 approximately 100,000 square feet47 and would accommodate roughly 800

2 students.48 The preschool building would be approximately 30,000 square feet49 and

3 include a large synagogue.50

4 During the meeting, Roman asked if YSV planned to build dormitories

5 at the schools. Rabbi Fromowitz answered that it did not. Roman repeated the

6 question twice more, mentioning a rumor “floating around” that YSV did intend to

7 build dormitories.51 Rabbi Fromowitz repeated that YSV had no such intention. He

8 explained that the development would be a primary school and that “[p]rimary

9 school children should be living at home.”52

47

Id. at 38 [TE-589]. 48

Id. 49

Id. 50

Id. at 40 [TE-591]. 51

Id. at 37 [TE-588]. 52

Id. 17

1 Planning board member Lamer asked the Rabbi if YSV had done traffic

2 studies.53 Rabbi Fromowitz replied that it had.54 Roman then asked if there would

3 be any other structures built on the property.55 Rabbi Fromowitz replied that “we

4 have no plans for further development. There’s nothing on the table that we are

5 planning at this moment. If there would be a future plan we would come before the

6 Planning Board once again for additional, you know, development. But I can’t tell

7 you right now of any other development because there is nothing, that we’re

8 planning at this point.”56

9 Mark Healey, the FPC representative, then interjected the following:

10 “Mr. Chairman, if I could offer some comments to the Board. I took a 11 look at the zoning for schools in the Village and they really stink, to put 12 it straight. The[] only requirement is that they have to have five acres 13 of land and the setbacks have to be twice what is ordinarily 14 required.[57] So that leaves an open question of issues that several

53

Id. at 40 [TE-591]. 54

Id. 55

Id. at 41 [TE-592]. 56

Id. 57

A “setback” is “[t]he minimum amount of space required between a lot line and a building line.” Setback, Bryan A. Garner, Black’s Law Dictionary (11th ed. 2019). 18

1 members of the Board brought up. What can happen in the future? It 2 looks okay now, but look at the property, it’s 100 acres and there’s a lot 3 of potential out there. So, I would recommend that perhaps the 4 applicant going back and doing more detailed plans, and doing a traffic 5 study and everything else for the Village to seriously consider looking 6 at it[s] requirements for schools and address such issues as perhaps, 7 more detailed or more tailored lot area requirements. It’s common to 8 have lot area based on the number of students. So you can have say 5 9 acres, and say you have to have another .1 acre per student. So you 10 wouldn’t restrict them from doing what they want to do but it would 11 assure the Village that they’re not going to go down the road and 12 develop a lot more in the future. Especially considering the 13 constrained nature of the site and also the constrained nature of the 14 surrounding road ways, in terms of traffic.”58

15 In response to Healey’s comments, the board chairman, Mel Cook, asked whether

16 YSV would have the ability to build an additional school in the future or if the

17 Village could “limit that.”59 Healey replied that the Village could not prohibit

18 building schools but could “put reasonable standards on their development and

19 operations.”60 He added that he thought the Village should consider changes to the

20 Village code for schools “from a planning perspective, in terms of property

58

Village of Pomona Planning Board Meeting Minutes, Dec. 15, 1999 at 41 [TE- 592]. 59

Id. at 42 [TE-593]. 60

Id. 19

1 constraints, traffic and what would be appropriate” for the Camp Dora property and

2 others in the Village.61

3 Following the meeting with Rabbi Fromowitz, FPC prepared several

4 memoranda for Mayor Herbert Marshall and the Village board of trustees

5 addressing the YSV proposal and recommending amendments to the Village zoning

6 law.62 FPC noted in a January 24, 2000 memorandum that “it quickly became

7 apparent” from a review of “the existing standards for schools in the Village’s

8 Zoning Law” that “the current standards for schools . . . are rather scant and would

9 not adequately control the total/future development of a school property.”63 The

10 memorandum continued:

11 “For example, based on the 10 percent maximum permitted building 12 coverage requirement the subject property[, i.e., YSV property, 13 formerly Camp Dora,] could theoretically be developed with over 14 800,000 square feet of floor space. While this amount of development 15 is highly unlikely due to the development constraints presented by the

61

Id. 62

Frederick P. Clark Associates, Inc., Memorandum re Proposed Primary School and Pre-School (YSV-Pomona) and the Village’s Zoning Regulations Regarding Schools, Jan. 24, 2000 [TE-283-85]. 63

Id. at 1 [TE-283]. 20

1 steep slopes and wetlands on the property, it does point out the 2 inadequacy of the current standards.”64

3 FPC recommended, among other things, making schools subject to special permit

4 approval by the board of trustees,65 revising lot area requirements, implementing

5 limits aimed at controlling development intensity, and changing the definition of

6 “school” to include preschools.66

7

8 b. December 2000 Board of Trustees Meeting

9 Eleven months later, Pomona trustees Ian Banks and Nick Sanderson,

10 Deputy Mayor Al Appel, and Mayor Herbert Marshall addressed these matters.67

64

Id. 65

A “special permit,” or “special-use permit,” “is permission to use property in a manner expressly permitted by a zoning ordinance although other zoning ordinances in effect would otherwise prohibit the use.” Salkin § 29:2. It is in effect an exception to the ordinance identified within the ordinance itself. It differs from a variance, which is an approved development that does not comply with an ordinance. Id. 66

Frederick P. Clark Associates, Inc., Memorandum re Proposed Primary School and Pre-School (YSV-Pomona) and the Village’s Zoning Regulations Regarding Schools, Jan. 24, 2000 at 1-2 [TE-283-84]. 67

One reasonably might infer that there had been discussion involving FPC, the Village board, and perhaps the planning board about possible amendments to the zoning ordinance in light of FPC’s recommendations to the planning board. The record, however, is silent on this. 21

1 On December 18, 2000, they considered whether the definition of “school” in any

2 new law should include both public and private schools, rather than private schools

3 alone, in light of their understanding that state law already regulated public

4 schools.68 They discussed also the recommendation to change schools from

5 “permitted uses” “to uses subject to special permit approval.”69 The group indicated

6 that adopting school-related changes to the Village code was a priority that it hoped

7 to accomplish within two months. Mayor Marshall stated also that the draft changes

8 then before them were “a starting point” that they “want[ed] to work on” because

9 “[t]his thing’s going to come in. They’re going to come in and we’re going to be

10 caught with our pants down if we don’t move. That’s why I want to make sure that

11 we’re moving ahead.”70 At the time of this meeting, and when the changes

12 discussed were enacted into law, there were no schools in the Village.71 The only

13 prospective school use was the YSV plan.

68

Village of Pomona Board of Trustees Meeting Minutes, Dec. 18, 2000 at 67-69 [TE- 296-98]. 69

Id. at 68 [TE-297]. 70

Id. at 69 [TE-298]. 71

Joint Pretrial Order Stipulations of Fact ¶ 11 [A-733]. 22

1 c. Local Law No. 1 of 2001

2 On January 22, 2001, the board of trustees adopted Local Law No. 1 of

3 2001 (the “2001 Law”).72 It defined “educational institutions” as kindergartens,

4 primary, and secondary schools that were operated and licensed under New York

5 law.73 It required also that schools obtain special permits from the board of trustees.

6 In addition, it changed the minimum lot size from 10 gross acres to 10 net acres plus

7 an additional .05 net acres per student.74

8

9

10

72

Id. ¶ 10 [A-733]. At the time, the members of the board were Mayor Herbert Marshall, Deputy Mayor Al Appel, and trustees Nick Sanderson, Ian Banks, and Alma Roman. See Village of Pomona Board of Trustees Meeting Minutes, Oct. 22, 2001 at 1 [TE-273]. 73

Local Law No. 1 of 2001, Jan. 22, 2001 [TE-1481-87]. 74

Id. “Net lot area” refers to total acreage exclusive of certain types of land. The concept is a product of overlay zoning, a practice by which a municipality “overlays” its zoning map with a separate map designed to protect an environmental area. See Robert J. Blackwell, Overlay Zoning, Performance Standards, and Environmental Protection After Nollan,

, 615 (1989). As defined in Pomona’s 2001 law, net lot area is calculated as acreage less submerged land, most land within utility or drainage easements, and certain land with unexcavated slopes. Local Law No. 1 of 2001, Jan. 22, 2001 [TE-1481-87]. 23

1 d. June 2001 Planning Board Meeting

2 In June 2001, YSV returned to the planning board with another informal

3 presentation. This time, YSV described an additional proposed structure – an

4 educational center for adults.75 The Village attorney questioned whether the

5 educational center would qualify as an “educational institution” under the new 2001

6 Law.76 The planning board and the YSV representative discussed also issues related

7 to wetlands, slopes, and road access.77 The YSV representative stated that YSV

8 would address these issues with the Village before submitting a formal application.78

9

10 e. The YSV Subdivision

11 Under Pomona’s subdivision regulations, subdivision of a parcel into

12 two or more lots requires the planning board’s approval before the applicant seeks

75

Village of Pomona Planning Board Meeting Transcript, June 20, 2001 at 51-52 [TE- 1609–10]. This aspect of the plan was subsequently removed. Village of Pomona Planning Board Meeting Transcript, Aug. 15, 2001 at 43 [TE-1350]. 76

Village of Pomona Planning Board Meeting Transcript, June 20, 2001 at 52-53 [TE- 1610-11]. 77

[TE-1612-17]. 78

[TE-1615-16]. 24

1 approval for a specific development plan on a subdivided lot.79 While its informal

2 approach concerning its yeshiva project was underway, YSV made a separate

3 presentation during an August 2001 hearing concerning a proposed subdivision of

4 the 100 acre property into 26 lots – 25 for single-family homes, and one large lot, not

5 a topic of the August 2001 hearing, for the yeshiva.80

6 A number of Pomona residents attended the planning board hearing

7 and commented on the YSV proposal. Two expressed anxiety over the Village’s

8 ability to control the large lot. One asked whether that lot later could be annexed “to

9 any of the other religious areas in the county” and thus prevent the Village from

10 exercising regulatory control over the property.81 The other asked whether Pomona

11 had laws stricter than those of the Town of Ramapo that would allow the Village to

12 determine whether and how the Camp Dora property could be developed, or

13 whether there were no such laws and that the school essentially was “a done deal.”82

79

Pomona Code § 118-2 [TE-714]. 80

Village of Pomona Planning Board Meeting Transcript, Aug. 15, 2001 at 29-30 [TE- 1336-37]. 81

Id. at 41 [TE-1348]. 82

Id. at 46 [TE-1353]. 25

1 2. TRC Buys the Property and the Village Adopts Local Law No. 5 of 2 2004 3 4 On August 31, 2004, YSV sold the property to TRC for approximately

5 $13 million.83 The parties stipulated below that the Village government did not

6 become aware of this transaction until November 2004.84 In the interim, however,

7 the board of trustees considered another amendment to the zoning ordinance.

8 On September 7, 2004, Village Attorney Doris Ulman made the

9 following recommendations to the board of trustees: (1) changing the definition of

10 “educational institution” to allow dormitories as a permitted accessory use, (2)

11 eliminating the requirement of a specific acreage per student, (3) removing

12 restrictions related to the location of schools on certain roads, and (4) limiting

13 dormitories to one such building per lot.85 The first recommendation would have

83

DX 1057, Deed of Sale, Rockland County, Aug. 31, 2004 [TE-1618]. YSV had paid approximately $1.65 million for the property, though there is no indication in the record of the year in which that occurred. Tr., Deposition of Nathan Fromowitz, 23:11-19 [A-449]. 84

Joint Pretrial Order Stipulations of Fact ¶ 15 [A-733]. 85

Doris F. Ulman, Memorandum re Proposed Amendment to Zoning Law in Relation to Schools, Sept. 7, 2004 [TE-1513-14]. The board consisted of Mayor Herbert Marshall, Deputy Mayor Nick Sanderson, and trustees Ian Banks, Alan Lamer, and Alma Roman. Village of Pomona Board of Trustees Meeting Minutes, Sept. 7, 2004 at 1 [TE-361]. 26

1 brought Pomona into compliance with state law – specifically, Bagnardi – requiring

2 that municipal zoning codes allow dormitories as an educational use of property.86

3 On September 27, 2004, the board adopted these recommendations by

4 enactment of Local Law No. 5 of 2004 (the “2004 Law”).87 Bound as we are by the

5 parties’ stipulation, we, like the court below, necessarily accept that it did so in

6 ignorance of TRC’s purchase of the property.

7 The 2004 Law liberalized certain provisions of Village law related to

8 educational institutions – including provisions of the 2001 Law. It expanded the

9 definition of “educational institution” to include college, graduate, and postgraduate

10 schools in addition to kindergarten, primary, and secondary schools.88 It recognized

11 also accreditation of schools “by the New York State Education Department or [a]

12 similar recognized accrediting agency.”89 Additionally, the 2004 Law defined a

13 “dormitory” as:

86

See Bagnardi,

. 87

Joint Pretrial Order Stipulations of Fact ¶ 24 [A-734]; Village of Pomona Board of Trustees Meeting Minutes, Sept. 27, 2004 [TE-374]. 88

Local Law No. 5 of 2004, Sept. 27, 2004 [TE-1488-91]. 89

Id. at 1 [TE-1488]. 27

1 “A building that is operated by a school located on the same lot and 2 which contains private or semi-private rooms which open to a common 3 hallway, which rooms are sleeping quarters for administrative staff, 4 faculty[,] or students. Communal dining, cooking, laundry, lounge[,] 5 and recreation facilities may be provided. Dormitory rooms shall not 6 contain separate cooking, dining[,] or housekeeping facilities except 7 that one dwelling unit with complete housekeeping facilities may be 8 provided for use of a Superintendent or supervisory staff for every fifty 9 dormitory rooms. Not more than one communal dining room shall be 10 provided in any building used for dormitory purposes. Single family, 11 two-family[,] and/or multi-family dwelling units other than as 12 described above shall not be considered to be dormitories or part of 13 dormitories.”90 14 15 According to Ulman, who drafted the law, this definition was based on laws in

16 Chestnut Ridge and Ramapo.91

17 Significantly, none of the changes effected by the 2004 Law would have

18 had any effect on the plans of YSV which, as far as the Board of Trustees knew, still

19 owned the property.

20

21 3. The Village’s Opposition to the Town of Ramapo’s Zoning Changes

22 Until now, we have focused on events relating to the old Camp Dora

23 that culminated with TRC’s acquisition of the property and the Village’s

90

Id. 91

Affidavit of Doris F. Ulman [07-cv-6304, DI 296] ¶ 47 [TE-1892]. 28

1 amendments to its zoning law. But there were related events going on during part

2 of the same time period that involved the Town of Ramapo’s zoning ordinance. As

3 these events bore also on the district court’s findings, we turn to them now.

4 Between 2002 and 2004, the Town of Ramapo, which governs areas

5 adjacent to Pomona, considered and passed a number of laws regulating or relevant

6 to land use.

7 In September 2002, Ramapo came out with a draft comprehensive plan

8 for development. The draft plan proposed, among other things, to “down zone” a

9 200-acre property called the Patrick Farm Property from 2-acre residential zoning,

10 or RR-80, to R-40 that would allow for “Planned Residential Development.”92 The

11 Patrick Farm Property is located on the southwest corner of Routes 202 and 306 –

12 across the road from the TRC property.

13 Rumors circulated that 1,500 to 2,000 units of multi-family housing

14 would be built on the Patrick Farm Property. To calm the rumors, the town

92

Office of the Mayor, Letter, Dec. 12, 2002 at 1 [TE-235]. A “planned residential development” is a provision of a zoning ordinance that permits a municipality to exempt certain types of development – frequently large-scale projects – from specified zoning requirements. See Eli Goldston & James H. Scheuer, Zoning of Planned Residential Developments, 73 HARV. L. REV. 241, 252-53 (1959). In some instances, their use may permit higher density as well as building types that otherwise would not be permitted. 29

1 supervisor,93 Christopher St. Lawrence, issued a statement to clarify that the draft

2 plan would allow only 220 residential units to be built there.94 But some of the

3 neighboring villages, including Pomona, were not reassured and sought to create

4 a new village where the Patrick Farm Property was located in order to remove it

5 from Ramapo’s jurisdiction and thus prevent the proposed down zoning.95 Mayor

6 Marshall was a proponent of this idea and vocal opponent of the draft

7 comprehensive plan.96 He emphasized that “[z]ero population growth should be a

8 major [objective of Ramapo’s comprehensive plan].”97 Notwithstanding such

93

A town supervisor is an elected officer who functions as the town treasurer and presides over town board meetings. See

, 29, 63. 94

Office of the Mayor, Letter, Dec. 12, 2002 at 1 [TE-235]. 95

[TE-236].

The Town of Ramapo “has no direct jurisdiction over village zoning.” DX 1008, Town of Ramapo Draft Comprehensive Plan (R-2040), Dec. 22, 2003 at 2 [TE-1474]. 96

See Office of the Mayor, Letter, Dec. 12, 2002 [TE-235-36]. 97

Office of the Mayor, Ramapo Comprehensive Plan DGEIS, Apr. 29, 2003 Comments at 2 [TE-379]. 30

1 opposition, the comprehensive plan was adopted on January 28, 2004.98 The new

2 village supported by Marshall did not come to pass.

3 In May 2004, the Village of Pomona and five other villages sued

4 Ramapo to set aside its comprehensive plan.99 Their petition stated that:

5 “Beginning in the 1990[s], the Town has attracted a burgeoning 6 Hassidic community, which has for the most part settled around the 7 central hub in Monsey and areas to the east of Monsey. 8 9 “This has caused development and political pressures in the Town to 10 increase its housing stock and infrastructure. 11 12 “The essence of the Comprehensive Plan and zoning proposals is to 13 significantly increase the housing densities and infrastructure along the 14 bordering areas of the Town to accommodate the existing and future 15 population increases in this area. 16 17 “It is not a rational development plan, and certainly did not take into 18 consideration the impacts such development would have on the 19 infrastructure and character of the Town’s bordering Villages.”100 20 21 The action sought to set aside the plan on the ground that it had been adopted in

22 violation of SEQRA.

98

In re Application of Village of Airmont, Verified Petition at 1, May 27, 2004 [TE-848]. 99

100

[TE-853-54]. 31

1 Shortly after the petition was filed, Ramapo adopted Local Law No. 9-

2 2004, which “permits married adult student multi-family high density housing in

3 most single-family residential zones throughout the unincorporated portion of the

4 Town of Ramapo” if that housing is an accessory use to a postsecondary educational

5 institution.101 Pomona and other villages again sued Ramapo on the grounds,

6 among others, that the law violated SEQRA and the Establishment Clause of the

7 First Amendment.102 And Mayor Marshall separately criticized the Ramapo town

8 board for “pandering to the special interest groups able to deliver the critically

9 important block vote [that] has become so essential to those seeking office in

10 Ramapo.”103

11

12

13

14

101

Village of Chestnut Ridge v. Town of Ramapo, Verified Petition and Complaint ¶ 7, Oct. 12, 2004 [TE-889]. 102

[TE-887-926]. 103

Newsletter of the Village of Pomona, THE VILLAGE GREEN (Jul. 2004) [TE-275]. 32

1 4. TRC’s Plans to Build a Rabbinical College

2 TRC was formed in August 2004 as a religious corporation.104 Its stated

3 purpose was, among other things, to “establish, maintain[,] and conduct a school for

4 the [study] of the holy Torah and to maintain classes for the teachings of the

5 customs, traditions[,] and mode of worship of the Jewish Orthodox faith.”105 It

6 intended to build and operate a rabbinical college in Rockland County to train a new

7 generation of rabbinical judges106 on the property it purchased from YSV in August

8 2004.107

9 According to Tartikov, TRC would be organized as a Torah

10 community,108 a community designed to isolate students from distractions and

104

TRC Certificate of Incorporation, Rockland County, New York, Aug. 5, 2004 (hereinafter “TRC Certificate of Incorporation”) [TE-1-2]. 105

[TE-2]. 106

Trial Declaration of Michael Tauber [07-cv-6304, DI 283] ¶ 11 [TE-1668]. 107

TRC Certificate of Incorporation at 3 [TE-4]. 108

A Torah community, or Bais Din community, is one in which students training to become rabbinical judges live with their families and study with other students, free from distractions presented by the outside world. See Tr., Tauber Trial Testimony, 69:9-70:8 [A-894-95]. 33

1 surround them only with others engaged in the same study.109 Students would

2 follow its planned program of study for approximately fifteen years before

3 becoming rabbinical judges.110 They would study from 6 a.m. until 10 p.m111 and live

4 on campus with their spouses and children.112 On-campus housing would allow

5 them to meet their religious obligations to their families.113 Due to the nature of its

6 program, TRC could not be accredited by the New York State Education Department

7 or the Association for Advanced Rabbinical and Talmudic Schools, the only

8 accrediting agencies relevant to TRC’s program of study.114

9 There is evidence that Pomona’s board of trustees learned a bit about

10 TRC’s plans as early as November 2004, when it became aware that TRC had

11 purchased the property. Most obviously, TRC’s name, which includes the phrase

109

Trial Declaration of Michael Tauber [07-cv-6304, DI 283] ¶ 56 [TE-1672]. 110

[TE-1669]. 111

[TE-1673]. 112

[TE-1672]. 113

114

[TE-1673-74]; Joint Pretrial Order Stipulations of Fact ¶ 2 [A-732]. 34

1 “Rabbinical College,” is not subtle about the purpose of TRC. Further, from

2 November 2004 until January 2007, the Village approved TRC’s tax-exempt status

3 twice,115 and the board of trustees discussed or planned to discuss TRC in nonpublic

4 meetings on ten separate occasions.116 There is evidence also that there were

5 “unsubstantiated rumors”117 that TRC planned to build a rabbinical college on the

6 property.118

7 These facts notwithstanding, there is no evidence that the board knew

8 any details about the planned rabbinical college before January 2007. In particular,

9 nothing in the record suggests that the board knew about the nature, length, or size

10 of the contemplated rabbinical college program, its anticipated on campus housing,

115

Joint Pretrial Order Stipulations of Fact ¶ 16 [A-733]. 116

Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona,

(S.D.N.Y. 2017).

Executive sessions, which are nonpublic, may be held to discuss matters of litigation. See Village of Pomona Board of Trustees Meeting Minutes, Feb. 12, 2007 at 6 [TE-247]; Tr., Ulman Trial Testimony, 850:22-851:3 [A-1349-50]. 117

Defendants’ Amended Responses to Certain of Plaintiffs’ Second Set of Interrogatories ¶ 20 Response [TE-693]. 118

Tr., Sanderson Trial Testimony, 463:12-20 [A-1104]. 35

1 the number of people who would reside on the site, or the duration of the planned

2 course of study.

3

4 5. Ulman Drafts the 2007 Laws

5 It was in this context that Ulman in late 2006 drafted what would

6 become Local Law No. 1 of 2007 (the “2007 Dormitory Law”) and Local Law No. 5

7 of 2007 (the “2007 Wetlands Law”) – the third and fourth challenged laws.119

8 The draft 2007 Dormitory Law would have (1) changed the acreage

9 requirement for educational institutions to a net of 10 acres without the prior

10 requirement of .05 additional net acres per student, (2) removed certain slopes from

11 the net lot area calculation, (3) prohibited dormitories from occupying more than 20

12 percent of the total square footage of all the buildings on a lot, and (4) set the

13 maximum height of a dormitory at 25 feet.120

14 Among other things, the draft 2007 Wetlands Law would have

15 prohibited “[e]recting any building or structure of any kind,” including roads and

119

See, e.g., December 11, 2006 Memorandum from Doris Ulman to Mayor and Board of Trustees 1 [TE-341] (sending the board a draft of the Wetlands Law). 120

Local Law No. 1 of 2007 [TE-1492-93]. 36

1 driveways, within 100 feet of the boundary of any wetland without a permit issued

2 by the board of trustees or planning board.121 A person could apply for a permit

3 only if the prohibitions in the law resulted in the “deprivation of [all] the reasonable

4 use of a property so as to constitute a de facto taking of such property.”122 The 100-

5 foot buffer, however, would not apply to “lots that are improved with single family

6 residences.”123 The permit and permit-approval procedures prescribed by the 2007

7 Wetlands Law are different from the special permit requirement and permit process

8 for educational uses under the 2001 Law.

9

10 6. December 18, 2006 Public Hearing re 2007 Laws

11 The board of trustees held a public hearing on what became the 2007

12 Dormitory Law on December 18, 2006. Paul Savad, the attorney for TRC, asked if

13 the proposed law was being considered due to his client’s intended use of its

121

Local Law No. 5 of 2007 at 3 [TE-1496]. 122

Id. at 5 (emphasis omitted, alteration in original) [TE-1498]. 123

Id. at 3 [TE-1496]. 37

1 property and what the law would accomplish for the Village.124 Marshall responded

2 that the intent was to “refine the existing law.”125 To give interested parties more

3 time to review the proposed law, the board continued the hearing to the next board

4 meeting on January 22, 2007.126 It set the extension hearing on the draft 2007

5 Wetlands Law for the same date.127 Before concluding matters on December 18,

6 however, the board held a closed executive session to discuss “matters of

7 litigation.”128 There is no record of the board’s discussion during that session,

8 though the agenda for the meeting indicates that the board planned to discuss the

9 TRC property.129

124

Village of Pomona Board of Trustees Meeting Minutes, Dec. 18, 2006 at 4 [TE- 261]. 125

Id. 126

Id. at 4-5 [TE-261-62]. 127

Id. at 9 [TE-266]. 128

Id. at 12 [TE-269]. 129

Village of Pomona Board of Trustees Meeting Agenda, Mayor’s Edition, Dec. 18, 2006 [TE-318]. Prior to TRC and YSV, the property was owned by Camp Dora. Joint Pretrial Order Stipulations of Fact ¶ 17 [A-733]. Village meeting agenda refer to the property by that name on at least several occasions. See, e.g., Board of Trustees Meeting Agenda, Tentative Working Edition, Oct. 16, 2006 [TE-226]. 38

1 7. Details of TRC’s Plans Emerge

2 On January 9, 2007, a political action group called Preserve Ramapo

3 published an article detailing plans for the TRC construction.130 Michael Castellucio

4 circulated the article to a Preserve Ramapo email list along with the following

5 message:

6 “This is not our usual update letter. We have posted an important 7 story that you will not find in other media including the Journal or 8 Channel 12. Plans are under way to build a ‘religious college’ in 9 Pomona at the end of Route 306 where it meets Route 202. On the 100 10 acres on the right side of the road a developer plans to put up an 11 apartment complex of 4 to 6-story buildings that will house 4,500 adult 12 students and their families. This campus will have 9 large apartment 13 buildings and a single, much smaller 3-story building that is the sole 14 school building. The formula used is the 90% apartments 10% school 15 of [Town of Ramapo Supervisor Christopher] St. Lawrence’s Adult 16 Student Housing Law. . . . 17 18 “Please forward this email, or send a link to the story to your neighbors 19 and friends. Residents need to know that the Adult Student Housing 20 complex on the old Nike site (Grandview Ave) was just the beginning 21 of a massive urbanization effort whose path was cleared by Supervisor 22 St. Lawrence and his Board.”131 23

130

PX 65, Email and Attachment, Jan. 9, 2007 [TE-163-65]. 131

Id. at 1 [TE-163]. 39

1 The article itself stated that TRC planned to build housing for 1,000 students –

2 together with their families totaling 4,500 residents.132 The plan involved parking

3 for 34 vehicles at the school building and 1,036 vehicles at the residence buildings.133

4 The article provided also the following background on the adult-student-housing

5 law:

6 “in [the Town of] Ramapo[, the Religious Land Use and 7 Institutionalized Persons Act (RLUIPA)] . . . was used by our town 8 board as the legal justification for its new Adult Student Housing Law 9 (ASH). Michael Klein, our town attorney, informed the town board 10 that under RLUIPA it could not prevent religious institutions from 11 creating ‘Adult Student Housing’ connected to schools providing ‘post- 12 secondary education.’ 13 14 “Rather than test the fairness and constitutionality of the RLUIPA law 15 in court, Supervisor St. Lawrence and his Board created a number of 16 ASH zones in Ramapo including the project on Grandview Ave. on the 17 old Nike site and numerous others. . . . 18 19 “By doing so, St. Lawrence and the Board have opened the floodgates 20 to urbanization with high-density, multi-story apartment complexes 21 masquerading as school campuses. 22

132

Id. at 2 [TE-164]. 133

Id. 40

1 “The only way out of this march over the cliff is for voters to clean 2 house this fall in the Ramapo elections, just as they did last fall in the 3 state and national elections.”134

4 On January 12, 2007, The Journal News, a local newspaper, published an

5 article entitled “Pomona to get rabbinical college plan.”135 It included an overview

6 of the scale of the project similar to the Preserve Ramapo article. In addition, it

7 quoted Savad as saying that the project was not a “dormitory city” but a rabbinical

8 college “for Orthodox Jews who desperately needed and are mandated by Jewish

9 law to go to the Jewish courts.”136

10

11 8. January 22, 2007 Public Hearing on the 2007 Dormitory Law

12 On January 22, 2007, the board continued the public hearing on the

13 draft 2007 Dormitory Law. Villagers voiced their opposition to the size and scale of

14 the rabbinical college as had been reported by Preserve Ramapo and The Journal

15 News despite repeated statements from Marshall that the exclusive purpose of the

134

Id. at 2-3 [TE-164-65]. 135

James Walsh, Pomona to Get Rabbinical College Plan, THE JOURNAL NEWS (Jan. 12, 2007) [TE-1129-30]. 136

Id. 41

1 hearing was to discuss changes to the law generally rather than to discuss any

2 specific property or project.137 Nevertheless, some villagers noted that an additional

3 4,500 people added to the Village’s population of 3,200 residents would “entirely

4 change the character” and “the politics of the [V]illage.”138 A volunteer firefighter

5 noted that there was no equipment to “handle six story buildings.”139 One

6 individual mentioned the pressure that the college would put on town

7 infrastructure.140 A number stressed that the rural character of the community was

8 a feature of Pomona they wished to preserve.141 And another described the adult

9 student housing in Ramapo on Grandview Avenue as a “monstrosity.”142

137

See, e.g., Tr., Village of Pomona Public Hearings on Local Law Amendment: Dormitories (continued), Local Law Amendment: Wetlands, Jan. 22, 2007, 30:18-25, 54:16-55:11 [TE-409, 433-34]. 138

Id. 10:3-11 [TE-389]. 139

Id. 11:21-12:2 [TE-390-91]. 140

Id. 14:24-15:12 [TE-393-94]. 141

See, e.g., id. 17:8-22 [TE-396]. 142

Id. 21:3-6 [TE-400]. 42

1 Some villagers voiced their opposition to the people who potentially

2 would reside on the property. One said that “there is a group who wants to take

3 over this village” and that he did not want to be

4 “responsible for paying the expenses of somebody else’s lifestyle, 5 whether you cloak it in religion, you cloak it in anything you want to 6 say, it just seems unfair that the burden should be placed on the people 7 who have lived in the village by other people who want to come in and 8 change the whole nature of the village.”143 9 10 Another stated that “it’s really funny how we’re talking about law, when you have

11 a group that breaks every law there is.”144

12 Two potential changes to the draft 2007 Dormitory Law – permission

13 to construct dormitories with two communal dining rooms and a height limit of 35

14 rather than 25 feet on dormitories – were discussed also. The change from 25 to 35

15 feet would have brought the height limit in line with the limit on all other buildings

16 in the Village. One villager noted, however, that many single-family homes and

17 other buildings in the Village had pitched, rather than flat roofs, as one would

143

Id. at 18:9-19:14 [TE-397-98]. 144

Id. 47:2-5 [TE-426]. 43

1 expect a dormitory to have.145 Applying a different height limit to dormitories

2 therefore would produce little or no inconsistency in the law.146 Another suggested

3 that the 35-foot limit should be measured from the existing rather than the proposed

4 grade of a property.147

5 At a certain point in the meeting, an individual stated that “it would be

6 nice to hear [the board] saying, hey, I know how you all feel.”148 He continued to

7 state that “in America, we have the sense of community. That’s our face. We’re

8 going to be another Kiryas Joel.[149] That’s why we are emotional.”150 The next three

145

Id. 66:1-11 [TE-445]. 146

Id. 147

Id. 68:14-69:10 [TE-447-48]. 148

Id. 56:11-12 [TE-435]. 149

Kiryas Joel is a village located within the Town of Monroe in Orange County, New York. It was incorporated in 1977 to serve as an enclave for followers of the Satmar Hasidic sect of Judaism and is populated almost exclusively by followers of that sect. See, e.g., Fernanda Santos, Reverberations of a Baby Boom, N.Y. TIMES (Aug. 27, 2006), https://www.nytimes.com/2006/08/27/nyregion/27orange.html. 150

Tr., Village of Pomona Public Hearings on Local Law Amendment: Dormitories (continued), Local Law Amendment: Wetlands, Jan. 22, 2007, 56:18-20 [TE-435]. 44

1 individuals to speak all commented on the emotion and frustration that villagers felt

2 as a result of the reports detailing TRC’s plans. Specifically, one individual said:

3 “The frustration that we have is that you knew of the press that had 4 come out, whether it be true or not. You knew that it was out there, 5 and you know we were very, very upset. I think what would have 6 helped us is if at the beginning of this meeting, you had said, this is 7 what is going on, we know that you’ve read this, we are here to protect 8 your interests, and the amendments to this law, this project, this 9 alleged project, with the alleged attorney who is allegedly sitting here, 10 produces it, that these amendments will defend us. If you had said that 11 in the beginning, I don’t think as many people would be as upset as 12 they are, because we don’t know where you stand.”151 13 14 Mayor Marshall replied:

15 “We sitting at this table have limitations that are placed on us as to 16 what we can say, and what we can’t say, because our attorney tells us 17 what we can say and what we can’t say. I can’t say what I feel – I can’t 18 – if I agree with you, I don’t agree with you, I don’t have that luxury of 19 being able to say that here. All that I can say is that every member of 20 this board works very, very hard to do what is best for this community. 21 You have your issues. Don’t assume because no one has gotten up and 22 said, wow, I agree with you, oh boy; don’t assume that because we 23 didn’t do that that we don’t agree. We may or we may not, but please 24 give us the benefit of the doubt. We have all been doing this – we work 25 very hard at what we do. We try and do what is best for the 26 community, but it’s our home. 27

151

Id. 58:4-18 [TE-437]. 45

1 “There are limitations under the law that restrict what we can say and 2 when we can say it.”152

3 Following the public hearing, the board briefly discussed the proposed

4 changes to the draft law. Trustee Lamer agreed with the point that dormitories were

5 more likely to have flat roofs and a 25-foot limit expressed the view therefore would

6 be appropriate.153 Trustee Banks said he thought that the limit should be consistent

7 with the limit on accessory uses, which was then 20 feet.154 Deputy Mayor

8 Sanderson concluded that the limit should be kept at 25 feet as in the draft law

9 proposed on December 18, 2006.155 He stated also that the board should keep the

10 provision in the December 18 draft that provided for one, not two, dining rooms.156

11 The board then adopted the 2007 Dormitory Law in the form originally prepared by

12 Ulman in 2006.157

152

Id. 58:20-59:13 [TE-437-38]. 153

Id. 76:12-18 [TE-455]. 154

Id. 76:23-77:6 [TE-455-56]. 155

Id. 77:8-19 [TE-456]. 156

Id. 157

Id. 78:18-80:20 [TE-457-59]. 46

1 9. January 22, 2007 Public Hearing on the Wetlands Law

2 Following a discussion of two items not subject to public hearing nor

3 transcribed, the board held a public hearing on the proposed 2007 Wetlands Law on

4 January 22.158 Savad objected to the law generally and on grounds specific to the

5 TRC property. He stated that the proposition that the proposed wetlands law was

6 designed to “fill a void created by federal law is incorrect and false . . . because the

7 vast majority of wetlands are under the present, current jurisdiction of the Army

8 Corps of Engineers and the [New York State Department of Environmental

9 Conservation, or] DEC.”159 Savad argued that the proposed law generally would be

10 “arbitrary and capricious,” “subjective,”160 “insidious,” and “not constitutional,” at

11 least insofar as it would add an additional 10 acres of the property to the 37 acres

12 already subject to DEC and federal wetlands jurisdiction, thus targeting and

13 preventing certain uses.161

158

Id. 80:23-82:12 [TE-459-61]. 159

Id. 84:24-85:7 [TE-463-64]. 160

Id. 85:20-23 [TE-464]. 161

Id. 86:12-87:7 [TE-465-66]. 47

1 A villager who spoke immediately afterward argued that the draft 2007

2 Wetlands Law indeed was needed to fill gaps in federal and state wetlands

3 regulations and provided an example of a developer who had damaged wetlands

4 on a property adjacent to Pomona. The developer had gone unpunished and the

5 damage unmitigated due to the limited jurisdiction, failings, and resource

6 constraints of the federal and state authorities.162 Another villager expressed

7 concern that his property would be affected negatively by the proposed law, which

8 he believed was “made specifically for, let’s just say, certain types of institutions

9 which I think is the reason for most of this.”163 He suggested that large parcels

10 should be treated differently than single-family homes.164

11

12

13

14

162

Id. 87:16-88:14 [TE-466-67]. 163

Id. at 93:1-3 [TE-472]. 164

Id. 93:4-6 [TE-472]. 48

1 10. February 12, 2007 Workshop Meeting

2 The public hearing on the draft 2007 Wetlands Law was continued to

3 February 26, 2007.165 On February 12, 2007, however, the board held a workshop to

4 discuss possible changes to the draft law. Each member of the board (with the

5 possible exception of Roman) had known for at least six years that there were

6 wetlands on the TRC property.166

7 At the workshop, Ulman ran through a list of recommendations from

8 the county.167 Subsequently, the board discussed the issue of what would happen

9 under the proposed law if a property owner wanted to extend an existing deck that

10 was within the buffer zone. Ulman noted that the building inspector in that event

11 would need to go to the property to determine if there were any wetlands that

165

Id. 97:1-8 [TE-476]. 166

Village of Pomona Board of Trustees Meeting Minutes, Oct. 22, 2001 [TE-273- 74]. 167

Tr., Village of Pomona Planning Board Workshop Meeting, Feb. 12, 2007, 4:8-6:3 [TE-492-94]. New York’s General Municipal Law mandates a county-level review for certain municipal land use actions, particularly those that may impact other municipalities or the county more generally. See

-l, 239-m, and 239-n. 49

1 would trigger the permit procedure in the law. Sanderson explained to Ulman that

2 the process would not work that way:

3 “[The building inspector] doesn’t have the time or the money, budget 4 wise, to go out and look at the site for somebody that wants to rebuild 5 their deck with three extra square feet in it. . . . 6 7 “He has to get a building permit to do it and the guy will look at the 8 site plan or the existing – the existing file and he’ll say, have you got a 9 proper – does the deck meet all of our codes? Yes. You got a building 10 permit.”168 11 12 Banks explained that the issue was a “problem of identifying and mapping the

13 existing wetlands or small wetlands all over the village.”169

14 Marshall noted that the law accomplished such mapping only for new

15 developments.170 After further back and forth, the board decided that it would

16 address at the next public hearing the issue of whether to apply the law to “new

17 additions and structures on existing developed property.”171

18

168

[TE-507-08]. 169

[TE-508]. 170

[TE-508-09]. 171

[TE-509, 515]. 50

1 11. Village Elections

2 The public hearing scheduled for February 26, 2007 was adjourned until

3 March 26, 2007.172 But on March 20, the Village held elections for the board of

4 trustees. Nick Sanderson, Brett Yagel, and Rita Louie ran as a slate.173 They

5 campaigned on a promise to stand up to the threat posed by TRC’s “huge

6 development that will include housing for thousands of adult students and their

7 families” that would “have real environmental and safety problems.”174 They

8 promised to fight TRC’s anticipated use of RLUIPA. They called RLUIPA

9 “fundamentally unfair” and its deployment “a hammer against our village.”175 And

10 they won: Sanderson became mayor, and Yagel and Louie each became a trustee.176

11 At the time they took up consideration of the draft 2007 Wetlands Law, at least

172

Village of Pomona Board of Trustees Meeting Minutes, Feb. 26, 2007 at 3 [TE-1361]. 173

PX 41, Sanderson, Louie, Yagel Campaign Flyer [TE-25]. Sanderson at the time was deputy mayor.

Louie and Yagel had no previous experience serving on the board of trustees.

174

175

176

Id.; Joint Pretrial Order Stipulations of Fact ¶ 22 [A-734]. 51

1 Sanderson177 and Yagel178 were aware of the presence of some wetlands on the TRC

2 property.

3

4 12. The Village Adopts the 2007 Wetlands Law

5 The Village adopted the 2007 Wetlands Law on April 23, 2007.179 It

6 exempted existing single-family homes.180

7

8 III. Procedural History

9 TRC never applied for a permit to build a rabbinical college on its

10 property. But Tartikov filed this action on July 10, 2007181 challenging the four

11 Pomona laws described above. It argued that the laws, facially and as applied,

177

Village of Pomona Board of Trustees Meeting Minutes, Oct. 22, 2001 [TE-273- 74]. 178

PX 69, Email, Jan. 11, 2007 at 1 [TE-168]. 179

Joint Pretrial Order Stipulations of Fact ¶ 26 [A-734]. 180

Local Law No. 5 of 2007 at 3 [TE-1496]. The exemption had no practical effect on existing homes, but may or may not have had implications for additions or modifications. 181

Complaint [07-cv-6304, DI 1]. 52

1 violated (1) the First and Fourteenth Amendments and their New York

2 constitutional counterparts, (2) the substantial burden, nondiscrimination, equal

3 terms, and exclusions and limits provisions of RLUIPA, (3) the Fair Housing Act

4 (“FHA”), and (4) New York statutory and common law.182

5 Pomona moved to dismiss on the grounds that Tartikov lacked

6 standing, its claims were not ripe, and it failed to state a claim for relief.183 The

7 district court granted the motion with respect to the as-applied challenges,

8 concluding that they were not ripe because TRC had not presented formally its

9 actual plans for the proposed rabbinical college nor made any application for a

10 special use permit, use variance, zoning amendment, or zone change.184 The court

11 concluded also that Tartikov’s claims under New York Civil Rights Law Section 40

12 were unripe.185 It denied the motion in all other respects relevant here.186

182

Second Amended Complaint [07-cv-6304, DI 27]. 183

Def. Mem. Motion to Dismiss [07-cv-6304, DI 37]. 184

Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona,

, 596–607 (S.D.N.Y. 2013). 185

. 186

53

1 Tartikov moved, and Pomona cross-moved, for summary judgment.

2 The district court granted summary judgment in favor of Pomona dismissing the

3 free speech claims.187 It otherwise denied the motions in all relevant respects.

4

5 After a ten-day bench trial, the district court ruled in favor of Tartikov

6 on the majority of its claims.188 Beginning with the Fourteenth Amendment claims,

7 the court found that the Village enacted each of the four challenged laws with a

8 discriminatory purpose against Tartikov based on its religious character and a desire

9 to prevent the growth of a Hasidic community in Pomona.189 Among other

10 evidence, the court focused on the timing of the laws, the Village’s litigation

11 opposing the Town of Ramapo’s comprehensive plan, the comments of villagers and

12 board members during the 2007 hearings, and several statements from Village

13 officials it regarded as indicating their prejudice against Tartikov.190 The court found

187

Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona,

(S.D.N.Y. 2015). 188

Tartikov,

. 189

. 190

. 54

1 also that the zoning law amendments had a discriminatory effect because they

2 prevented Tartikov from constructing the proposed rabbinical college.191 Thus

3 determining that the laws were subject to strict scrutiny, the court held that the

4 Village lacked a compelling state interest in enacting them and, in any case, the laws

5 were not narrowly tailored to serve any such interests.192 Based on these findings,

6 the court held also that the Village enacted the laws to discriminate against

7 Tartikov’s sincerely held religious beliefs and its associational rights.193

8 Treating the RLUIPA nondiscrimination claims as overlapping with the

9 equal protection claims, the court found for Tartikov on these claims, as well.194 It

10 found for Tartikov also on the claims under RLUIPA that the zoning law

11 amendments substantially burdened Tartikov’s religious exercise. The court held

12 that Tartikov demonstrated that its desire to build college facilities and multi-family

13 housing was motivated by its religious character, and that the zoning law

191

. 192

. 193

. 194

. 55

1 amendments would burden its planned construction substantially.195 However, the

2 court found for Pomona on the RLUIPA exclusions and limits and equal terms

3 claims. For the former, it found that while the amendments would exclude

4 Tartikov’s proposed religious use of its land, they would not, as an exclusions and

5 limits claim requires, totally exclude or unreasonably limit all religious assemblies,

6 institutions, or structures within the Village.196 As to the equal terms claims, the

7 court found that the zoning law amendments did not, as they must for the claim to

8 succeed, treat religious institutions differently than nonreligious institutions.197

9 The court held further that Pomona violated the FHA’s prohibition

10 against discriminatory housing policies and New York’s constitutional right to

11 freedom of worship largely in the same respects that it violated the U.S. Constitution

195

. 196

. 197

. 56

1 and RLUIPA.198 The court found for Pomona, however, on the New York common

2 law claims that the Village improperly had excluded multifamily housing.199

3 The district court entered judgment and a mandatory injunction on

4 March 1, 2018. Among other things, the court: (1) declared the four laws facially

5 invalid under the First and Fourteenth Amendments, (2) enjoined Pomona from

6 applying any of the provisions in those laws to the TRC property, (3) ordered

7 Pomona to “process any and all applications” filed by Tartikov without reference

8 to the provisions in the four laws and without “undue delay or religious

9 discrimination,” (4) directed Pomona to consider any proposed Tartikov

10 nonaccredited rabbinical college as a permitted use rather than one subject to any

11 special permit requirement, and any proposed Tartikov rabbinical college with

12 student-family-housing as a permitted use in the R-40 zoning district (one acre,

13 single-family residential), and (5) prohibited Pomona from enacting in the future

14 any provisions similar to those in the four challenged laws.200

198

. 199

. 200

Judgment and Mandatory Injunction [07-cv-6304, DI 356]. 57

1 Pomona appealed. Tartikov cross-appealed, asserting that the district

2 court erred in dismissing the as-applied challenges and in ruling for Pomona on the

3 RLUIPA equal terms and exclusions claims.

4

5 DISCUSSION

6 I. Standing

7 A federal court’s authority to adjudicate depends on whether the

8 plaintiff has standing to pursue its claims.201 The Supreme Court has construed

9 Article III to mean that a plaintiff must “have (1) suffered an injury in fact, (2) that

10 is fairly traceable to the challenged conduct of the defendant, and (3) that is likely

11 to be redressed by a favorable judicial decision.”202 An injury in fact sufficient to

12 confer standing is “an invasion of a legally protected interest” that is “concrete and

13 particularized” and “actual or imminent, not conjectural or hypothetical.”203 “[A]

201

MacDonald v. Safir,

(2d Cir. 2000); see also Melito v. Experian Marketing Solutions, Inc.,

(2d Cir. 2019) (“It is fundamental that we have an independent obligation to satisfy ourselves of the jurisdiction of this court and the court below.”) (quotation marks and citation omitted). 202

Melito,

(quoting Spokeo, Inc. v. Robins,

(2016)). 203

Lujan v. Defenders of Wildlife,

(1992) (quotation marks and citations omitted). 58

1 plaintiff must demonstrate standing for each claim he seeks to press and for each

2 form of relief that is sought.”204 Where an action involves multiple plaintiffs, Article

3 III is satisfied so long as at least one plaintiff – and not necessarily the same one –

4 has standing with respect to each claim.205

5 Tartikov’s claims fall into two distinct groups, each of which asserts a

6 different alleged injury.

7 Tartikov’s equal protection claims under the federal and New York

8 constitutions and its nondiscrimination and equal terms claims under RLUIPA all

9 are based on the alleged invasion of Tartikov’s right to be free from state

10 discrimination or unequal treatment under the law on the basis of religion. Its First

11 Amendment free exercise, free speech, and free association claims under the federal

12 and New York constitutions, RLUIPA substantial burden and exclusion and limits

13 claims, FHA claims, and common law claims related to the Berenson doctrine206 all

204

Town of Chester, N.Y. v. Laroe Estates, Inc.,

(2017). 205

. We therefore continue to treat TRC and its future students as a single entity for the purpose of our analysis. 206

This doctrine requires that “a zoning ordinance . . . [1] provide a properly balanced and well-ordered plan for the community, and . . . [2] adequately consider regional needs and requirements.” Cont’l Bldg. Co. v. Town of N. Salem,

(1995) (citing Berenson v. Town of New Castle,

(1975)). 59

1 rest on alleged infringement of the free exercise of its religion by regulation of the

2 use of its property. Whether Tartikov has standing to pursue each group of claims

3 turns on whether the alleged injury is an injury in fact for Article III purposes.207

4 The first group of claims is that the Village adopted the four challenged

5 laws at least in part for the purpose of discriminating against Tartikov on the basis

6 of religion and that those laws stigmatized the plaintiffs. “[S]tigmatizing members

7 of [a] disfavored group as innately inferior and therefore as less worthy participants

8 in the political community” – i.e., discrimination – is an actual and concrete injury

9 sufficient to confer standing.208 The “‘right invoked is that of equal treatment,’ [and]

10 the appropriate remedy is a mandate of equal treatment.”209 Tartikov thus has

11 standing to pursue equal protection claims under the Fourteenth Amendment of the

12 federal and New York constitutions as well as nondiscrimination and equal terms

13 claims under RLUIPA.

207

Tartikov pled also claims under New York Civil Rights Law Sections 40-c(1) and (2). The district court dismissed these claims as unripe prior to trial. See Tartikov,

. We therefore do not consider them here. 208

Heckler v. Mathews,

(1984) (quotation marks omitted). 209

(emphasis in original) (quoting Iowa-Des Moines Nat’l Bank v. Bennett,

(1931)). 60

1 But Tartikov’s second group of claims is different. It alleges that the

2 four challenged laws prevent it from building and operating a rabbinical college on

3 the property and thus interfere with its religious freedom. Tartikov, however, never

4 submitted a formal proposal for the building project, applied for a permit, or

5 engaged in any other conduct that would implicate or invoke the operation of the

6 challenged zoning laws. Whatever harm may arise from the application of the

7 zoning laws to TRC’s property is merely conjectural at this time. “[C]onjectural”

8 injuries do not suffice under Article III.210 We therefore lack jurisdiction over

9 Tartikov’s free exercise, free speech, and free association claims under the federal

10 and New York constitutions, RLUIPA substantial burden and exclusion and limits

11 claims, FHA claims, and common law claims related to the Berenson doctrine. We

12 vacate the judgment with respect to these claims and remand with instructions for

13 the district court to dismiss them.

14 We now turn to the remaining claims.

15

16

210

Lujan,

. 61

1 II. Equal Protection Claims211

2 “This Court has generally recognized three types of equal protection

3 violations: (1) a facially discriminatory law; (2) a facially neutral statute that was

4 adopted with a discriminatory intent and applied with a discriminatory effect . . . ;

5 and (3) a facially neutral law that is enforced in a discriminatory manner.”212 With

6 respect to each of the challenged laws, Tartikov focused, and the district court based

7 its holding, on the second theory.213

8 Discriminatory purpose “implies that the decisionmaker . . . selected or

9 reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in

211

The equal protection guarantees under the New York Constitution are coextensive with those under the U.S. Constitution. See, e.g., People v. Kern,

(1990). Consequently, the analysis that follows applies to Tartikov’s equal protection claims under the New York Constitution.

We need not address separately Tartikov’s RLUIPA nondiscrimination claim. RLUIPA’s nondiscrimination provision codifies the equal protection guarantees of the Fourteenth Amendment. Chabad Lubavitch of Litchfield County, Inc. v. Litchfield Historic Dist. Comm’n,

(2d Cir. 2014). Thus, our holdings with respect to the equal protection claims apply also to those claims. 212

Chabad Lubavitch,

. 213

Tartikov,

. 62

1 spite of,’ its adverse effects upon an identifiable group.”214 “Determining whether

2 invidious discriminatory purpose was a motivating factor demands a sensitive

3 inquiry into such circumstantial and direct evidence of intent as may be available.”215

4 This evidence may include “the series of events leading up to a land use decision,

5 the context in which the decision was made, whether the decision or decisionmaking

6 process departed from established norms, statements made by the decisionmaking

7 body and community members, reports issued by the decisionmaking body,

8 whether a discriminatory impact was foreseeable, and whether less discriminatory

9 avenues were available.”216

10 “In reviewing a district court’s decision in a bench trial, we review [its]

11 findings of fact for clear error[,] . . . its conclusions of law de novo,” and mixed

12 questions of law and fact de novo.217 Of particular relevance here, “[w]e review a

214

Pers. Adm’r of Mass. v. Feeney,

(1979); see also, e.g., Hayden v. Paterson,

(2d Cir. 2010) (same). 215

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

(1977). 216

Chabad Lubavitch,

. 217

White v. White Rose Food, a Div. of DiGiorgio Corp.,

, 178 (2d Cir. 2001). 63

1 district court’s finding of discrimination after a bench trial for clear error.”218

2 “[T]here is a strong presumption in favor of a trial court’s findings of fact if

3 supported by substantial evidence,” and “[w]e will not upset a factual finding unless

4 we are left with the definite and firm conviction that a mistake has been

5 committed.”219 That said, “we have not hesitated to find clear error ‘where the court

6 has failed to synthesize the evidence in a manner that accounts for conflicting

7 evidence or the gaps in a party’s evidentiary presentation.’”220

8 We consider the challenged laws in turn.

9

10 A. Local Law No. 1 of 2001

11 The district court found that the 2001 Law was motivated at least in part

12 by discriminatory animus based on: (1) the timing of the law in relation to YSV’s

13 informal proposal to build a yeshiva on the property and the fact that there were no

218

Mhany Mgmt., Inc. v. Cty. of Nassau,

(2d Cir. 2016). 219

White, 237 F.3d at 178 (quoting Travellers Int’l, A.G. v. Trans World Airlines, Inc.,

(2d Cir. 1994)); see also Anderson v. City of Bessemer,

(1985) (same). 220

Locurto v. Giuliani,

(2d Cir. 2006) (quoting Doe v. Menefee,

(2d Cir. 2004)). 64

1 schools in the Village at that time, (2) a comment made by FPC in a memorandum

2 (that specifically referenced YSV) stating that the zoning laws regarding schools

3 were “scant” and FPC’s comment at a planning board meeting that those laws

4 “really stink,” (3) a comment by Mayor Marshall during the same meeting that the

5 Village would be “caught with [its] pants down,” and (4) the Village’s supposed

6 reaction to earlier proposed projects – specifically, its opposition to the expansion

7 of an Orthodox Hasidic yeshiva, Bais Yaakov, in Ramapo in 1996 and its support for

8 an assisted-living facility. Reviewing as we must for clear error, these facts –

9 whether individually or taken together – are insufficient to support an inference that

10 the 2001 Law was enacted to discriminate against YSV in particular or Hasidic Jews

11 in general.

12 We agree with the district court that the timing of the 2001 Law was “in

13 direct response to YSV’s desire to build an Orthodox yeshiva on the Subject

14 Property.”221 But the Village’s choice to act in response to YSV’s informal proposal

15 says nothing of whether that choice was motivated by a positive, negative, or neutral

16 reaction to YSV, its religious character, or its project.

221

Tartikov,

. 65

1 YSV first approached the Village in 1999, through the informal

2 presentation described above, about building a yeshiva on the property. During the

3 meeting, its representative noted, in response to questions from Village

4 representatives, that YSV had conducted a traffic study, did not plan to build any

5 dormitories, and had no further development plans in mind. Mark Healey, the FPC

6 representative present at the meeting, then made the following comment:

7 “I took a look at the zoning for schools in the Village and they really 8 stink, to put it straight. The[] only requirement is that they have to 9 have five acres of land and the setbacks have to be twice what is 10 ordinarily required. So that leaves an open question of issues that 11 several members of the Board brought up. What can happen in the 12 future?”222 13 14 He went on to recommend that the Village “seriously consider looking at it[s]

15 requirements for schools and address such issues as perhaps, more detailed or more

16 tailored lot area requirements.”223 He stated also that the Village could craft

17 requirements that “wouldn’t restrict [YSV] from doing what they want to do but . . .

222

Village of Pomona Planning Board Meeting Minutes, Dec. 15, 1999 [TE-592]. 223

66

1 would assure the Village that they’re not going to go down the road and develop a

2 lot more in the future.”224

3 The district court relied on the two comments from Healey in finding

4 discriminatory animus. But these comments demonstrate an acceptance of YSV and

5 its proposal rather than any religious animus. The only negative implication, if there

6 was any, concerned the possibility of more intensive development in the future,

7 regardless of its nature or the identity of any future developer.

8 Of course, it theoretically is possible that Healy made these comments

9 to cover up discriminatory intent and that the board so understood them. If that

10 were so, the board’s receptiveness and responsiveness to Healey’s statements would

11 render the 2001 Law a violation of the Fourteenth Amendment. Moreover, if

12 discriminatory intent lurks within the background of a facially neutral decision,

13 courts are obliged to smoke it out.225 But there is no evidence on this record that

14 Healey harbored any relevant animus or intended the recommendations to serve as

15 cover for discriminatory goals. Nor is there evidence that the board understood his

16 comments to promote a forbidden end. Without evidence of discriminatory intent,

224

(emphasis added). 225

Arlington Heights,

. 67

1 we must look to the effects of the changes that FPC recommended to the Village to

2 determine how, if at all, they would have affected a formal YSV proposal, which was

3 the impetus for the board’s actions in this time period.

4 In its January 24, 2000 memorandum addressed to the Village board of

5 trustees, FPC recommended: (1) adding preschools to the list of authorized uses, (2)

6 subjecting schools to special permit approval, and (3) revising minimum lot size

7 requirements. The Village declined to adopt the first recommendation, as is evident

8 from the definition of “school” and “educational institution” in the 2001 Law. It

9 incorporated the second and third.

10 The record is devoid of evidence that could support an inference of

11 discriminatory intent in the Village’s decision not to move forward with the first

12 recommendation. Nothing in record suggests the Village had an invidious purpose

13 behind continuing to exclude preschools from the list of authorized uses.226 Nor

14 would the recommendation have had a discriminatory effect given that its definition

15 of “educational institution” applied to all schools equally. While YSV was the only

16 school at the time that owned property and intended to build in Pomona, the 2001

226

See Village of Pomona Board of Trustees Meeting Minutes, Dec. 18, 2000 [TE-290-98]. 68

1 Law would not have prevented YSV from applying for a special permit, nor would

2 it have excluded YSV from the Village. In fact, YSV itself indicated that its proposed

3 preschool was a smaller, subsidiary aspect of the project rather than its focus.227

4 The second and third recommendations require more analysis. To

5 begin, neither recommendation facially evidences discriminatory intent. In Bagnardi,

6 the New York Court of Appeals described the requirement of a special permit

7 application as “beneficial in that it affords zoning boards an opportunity to weigh

8 the proposed use in relation to neighboring land uses and to cushion any adverse

9 effects by the imposition of conditions designed to mitigate them.”228 An apt

10 example is a minimum lot size requirement, which can control “the effect the use

11 would have on . . . the general plan for development of the community.”229 The two

12 amendments under discussion thus were addressed to legitimate planning concerns.

13 And that is exactly what the evidence suggests the Village sought to do here.

14 Indeed, the FPC memorandum noted at the outset that “the current standards for

227

Village of Pomona Planning Board Meeting Minutes, Dec. 15, 1999 at 33, 38 [TE- 584, 589]. 228

Bagnardi,

. 229

69

1 schools [in the Village code] are rather scant and would not adequately control the

2 total/future development of a school property.”230

3 We must address also the statement Mayor Marshall made during the

4 December 18, 2000 board meeting. During that meeting, the Village attorney noted

5 that the draft 2001 Law under discussion was just that – a draft. Mayor Marshall

6 responded:

7 “Well, it’s a starting point, we want to work on it. This thing’s going 8 to come in. They’re going to come in and we’re going to be caught with 9 our pants down if we don’t move. That’s why I want to make sure that 10 we’re moving ahead. If you miss a meeting, no problem, you’re going 11 to be involved in the discussion any way, so. Okay, next item . . . .”231 12 13 From this statement and, in particular, the reference to the Village being

14 caught with its pants down, the district court attributed animus at least to Marshall.

15 But as so often is the case, context is everything. The starting point is Healy’s

16 recommendations and the reasons for them. He pointed out – and no one disputes

17 – that the Village had virtually no land use standards of any kind applicable to

230

Frederick P. Clark Associates, Inc., Memorandum re Proposed Primary School and Pre-School (YSV-Pomona) and the Village’s Zoning Regulations Regarding Schools, Jan. 24, 2000 [TE-283]. 231

Id. at 69 [TE-298]. 70

1 schools.232 It had merely a minimum lot size of 5 acres and required setbacks of only

2 twice those required for a single family house. But it was confronted with a

3 likelihood of near term development of a small part of a 100 acre parcel perhaps

4 followed in the future by efforts to develop the remainder of the property in

5 possibly more intensive ways. So the planning consultant recommended preparing

6 more detailed plans, doing a traffic study, and “seriously . . . looking at . . .

7 requirements for schools and address[ing] such issues as perhaps, more detailed or

8 more tailored lot area requirements.”233 He followed up with recommendations that

9 “wouldn’t restrict them [i.e., YSV] from doing what they want to do” but would take

10 appropriate account of possible later development especially in light of “the

11 constrained nature of the site and also the constrained nature of the surrounding

12 road ways, in terms of traffic.”234

13 Against that background, Marshall’s comment that “[t]his thing’s

14 [YSV’s proposal] is going to come in. They’re going to come in and we’re going to

232

Village of Pomona Planning Board Meeting Minutes, Dec. 15, 1999 at 41 [TE- 592]. 233

Id. 234

Id. 71

1 be caught with our pants down if we don’t move” is not reasonably construed as

2 betraying religious animus. In light of the fact that the recommended legislation

3 before the board at that point, as Healy had pointed out, “wouldn’t restrict” YSV

4 “from doing what they want to do,” it reflected agreement that action was

5 appropriate to protect against being “caught with our pants down” as respects

6 future development of the portion of the 100 acres that would not be developed

7 under the informal YSV proposal. It did not manifest religious animus toward YSV

8 in particular or Hasidic or others of the Jewish faith.

9 The district court relied also on the Village’s prior opposition to the

10 expansion of the Bais Yaakov yeshiva in 1996. But this evidence does not support

11 its finding either.

12 According to the minutes of a May 20, 1996 board of trustees meeting

13 discussing the yeshiva expansion:

14 “Mayor Klingher[] wrote the Town stating that too much of the 15 property was being utilized, the building was 50’ instead of 35’. The 16 approved Negative Declaration was rescinded. They plan to cover 55% 17 of the land instead of 25%. Parking requested was for fifty (50) spaces, 18 150 are needed. The Plan needs to be revised and changed again.”235 19

235

Village of Pomona Board of Trustees Meeting Minutes, May 20, 1996 at 7 [TE- 348]. 72

1 Later in the meeting, a member of the public “asked what she can do” about the Bais

2 Yaakov expansion plan.236 The mayor at the time responded “to get as many people

3 as she can to come out to the meetings. Also, they should retain an [a]ttorney to

4 represent them as a group.”237

5 This evidence does not support a finding of discriminatory animus.

6 Unlike TRC, the Bais Yaakov yeshiva already existed. Nothing in the record

7 suggests that the Village opposed its initial construction. As to the expansion

8 proposal, the evidence of record, according full appropriate deference to the district

9 court’s fact finding, does not support a conclusion that the Village was against

10 expanding the yeshiva, either entirely or in part, on religious grounds. The evidence

11 suggests only that the building was larger than the Village thought it should have

12 been,238 that the proposed land coverage would have been excessive, and that the

236

Id. at 8 [TE-349]. 237

Id. 238

It is unclear exactly what the reference to 50 feet rather than 35 feet actually meant. One possibility is that at some previous step in the process, Bais Yaakov had sought or obtained approval for a 35-foot building but that the yeshiva had switched to 50 feet. Of course, it is subject to a different interpretation as well – namely, that the building was simply too large of an expansion. As the latter is the view most favorable to plaintiffs, we accept it as fact for purposes of analysis. But it is insufficient evidence of prohibited animus. 73

1 proposed parking was insufficient. These all are permissible factors for municipal

2 regulators to consider. Likewise, the townsperson’s comment coupled with the

3 mayor’s response is too vague to permit an inference of animus.

4 The district court premised its animus holding also on the Village’s lack

5 of opposition in 1999 to an assisted-living facility to be built on the “Anna Mann”

6 Property. However, the record contains no evidence as to the size, resident

7 population, or scope of the proposed facility. Without such evidence, there is no

8 basis for comparing the yeshiva proposal with the assisted living facility.239

9 Having concluded that the evidence does not permit a finding of

10 discriminatory intent in the adoption of Local No. 1 of 2001, we must ask whether

11 the zoning law changes brought about by the 2001 Law have discriminatory effect.

12 The record does not support such a conclusion. The special permit requirement and

13 related conditions apply with equal force to any educational institution, religious or

14 secular, that might seek to build in Pomona. The fact that YSV was the only school

239

On cross-examination, Ulman testified that the yeshiva would have included “housing and a huge amount of development.” Tr., Ulman Trial Testimony, 809:25-810:3 [A-1320-21]. This statement is in apparent contradiction to Rabbi Fromowitz’s assertions that the yeshiva would not include dormitories. Village of Pomona Planning Board Meeting Minutes, Dec. 15, 1999 at 37 [TE-588]. Whatever the case may be, these scant details provide no basis for comparing the projects. 74

1 that hoped to build when the 2001 Law was passed does not render the

2 recommendations discriminatory because nothing in the record contradicts the

3 appropriateness of special permit and minimum lot size requirements to protect

4 against “traffic congestion,” overburdening “municipal services,” or damaging the

5 “general plan for development of the community.”240 Nor is there any evidence that

6 the recommendations, if adopted, would have prevented YSV from applying for a

7 special permit, caused the denial of such an application for any reason other than

8 unwillingness to comply with appropriate and reasonable conditions, or otherwise

9 thwart or exclude YSV from the Village.

10 We give great deference to the district court’s findings of fact. And we

11 are mindful that municipalities of Rockland County have faced significant

12 development pressure from Hasidic people in recent years. It is easy to see how bias

13 could play a role in influencing a municipality’s decision whether to allow a

14 religious institution to undertake a large construction project. But we must be

15 cognizant also that municipalities may resist development pressures for legitimate

16 reasons unrelated to discriminatory animus. Without direct evidence of intent, as

17 is the case here, divining a legislature’s motive is a difficult task – and one made

240

Bagnardi,

. 75

1 more difficult by the fact that bias may be implicit and decisions are supported often

2 by multiple rationales.

3

4 B. Local Law No. 5 of 2004

5 The district court relied on the following facts in finding that the 2004

6 Law was motivated by discriminatory animus: (1) the board of trustees passed a

7 resolution in January 2004 opposing any public officials who “abdicate their

8 responsibility of office by placing the politics of special interest groups and

9 individual developers ahead of the best interest of the people,” (2) the Village joined

10 others in a lawsuit against the Town of Ramapo in May 2004, which sought to strike

11 down Ramapo’s new comprehensive plan for failing to comply with SEQRA, (3)

12 following Ramapo’s adoption of an adult-student-housing law in June 2004, the

13 Village joined others in a separate action against Ramapo to strike down that new

14 law, (4) in opposing the Ramapo law, Mayor Marshall stated that Ramapo officials

15 were “pandering to the special interest groups able to deliver the critically important

16 block vote,” (5) YSV’s tax exempt status was denied for the first time in 2004, and (6)

17 the Village did not oppose an earlier Barr Laboratories project to construct an office

18 building. 76

1 As detailed above, the 2004 Law, which was based on Ulman’s

2 recommendations, in fact liberalized several features of the then existing zoning

3 law.241 It allowed dormitories, which had not been permitted under the 2001 Law.

4 It loosened accreditation requirements and added college, graduate, and

5 postgraduate schools to the definition of “educational institution[s]” – a change that

6 could have been made as an accommodation or response to YSV’s request in June

7 2001 to build an adult-education center on the property. And it eased some

8 restrictions related to acreage and road access. The 2004 Law added no new

9 restrictions and did nothing to tighten existing restrictions or requirements.

10 In other words, the 2004 Law would not have prevented YSV from

11 developing the Subject Property.

12 Nothing in the content or effect of the 2004 Law permits the inference

13 that it was motivated by animus. The district court found discriminatory animus in

14 the events leading up to the passage of the 2004 Law to support the inference that

15 it was motivated by bias against the Hasidim. It found that the 2004 Law was

16 intended to shore up the 2001 Law – possibly in danger of invalidation under

241

Local Law No. 5 of 2004, Sept. 27, 2004 [TE-1488-91]. 77

1 Bagnardi due to its exclusion of dormitories – in order to “prevent the spread of [the

2 Hasidim] into the Village.”242

3 As detailed above, in January 2004, the Town of Ramapo – which

4 contains part of the Village of Pomona – adopted a new comprehensive plan. The

5 Ramapo plan proposed a zoning change that would permit certain residential

6 development on the Patrick Farm Property, which is located across the street from

7 the YSV property. These changes had been under consideration since September

8 2002. In the interim, rumors had circulated that the Patrick Farm property would

9 be developed with hundreds if not thousands of units. Pomona and several other

10 villages petitioned a court to set aside the comprehensive plan as unlawful under

11 SEQRA. The villages’ arguments were based generally on the idea that the plan

12 failed adequately to consider the environmental and other impacts of the vastly

13 increased density of development projects it would authorize. The petition

14 mentioned the Hasidim only as an explanation of a source of the development

15 pressure: “[b]eginning in the 1990[s], the Town has attracted a burgeoning Hassidic

242

Tartikov,

. 78

1 community . . . [that] has caused development and political pressures in the Town

2 to increase its housing stock and infrastructure.”243

3 In June of the same year, Ramapo enacted Local Law No. 9-2004, which,

4 subject to issuance of a special permit, authorized adult-married-student housing

5 at postsecondary educational institutions. In October, before becoming aware that

6 TRC purchased the Subject Property, Pomona, three other villages, and a number

7 of individuals sued Ramapo and others to invalidate the law as a violation of

8 SEQRA and municipal law.244 They argued also that the law violated the

9 Establishment Clauses of the federal and New York constitutions based on certain

10 events prior to the enactment of the law.245 Specifically, Ramapo received a

11 comment from Yeshiva Chofetz Chaim of Radin that asked it to provide adult-

12 student housing for married students and their families while the married students

13 continued their postsecondary education. This allegedly was the only comment on

243

In re Application of Village of Airmont, Verified Petition ¶¶ 31-32, May 27, 2004 [TE- 853]. 244

Village of Chestnut Ridge v. Town of Ramapo, Verified Petition and Complaint, Oct. 12, 2004 [TE-887-926]. 245

Id. at 36 [TE-922]. 79

1 this topic.246 Ramapo eventually asserted that it would comply with the request.247

2 In addition, Ramapo provided in the final legislation a carve-out from a 500-foot

3 buffer requirement for adult-student-housing developments, a carve-out that was

4 uniquely applicable to one parcel in the Town of Ramapo – a parcel owned by

5 Yeshiva Chofetz Chaim.248 Consequently, in making their Establishment Clause

6 claims, Pomona and its co-plaintiffs stated that the adult-student-housing law was

7 passed “to secure for one religious community [the Orthodox Jewish community]

8 a unique and significant zoning benefit.”249

9 We note at the outset that, in order to state an Establishment Clause

10 claim, the Village and its co-plaintiffs had no choice but to reference the religion of

11 the group that stood to benefit from the challenged law. This and other references

12 to the Hasidim thus contain no suggestion of animus on their face.

246

Id. ¶ 57 [TE-897]. 247

Id. ¶ 60 [TE-898]. 248

Id. ¶¶ 114-16 [TE-907-08]; Affidavit of Jay B. Rosenstein ¶ 39 [TE-953-54]. 249

Village of Chestnut Ridge v. Town of Ramapo, Verified Petition and Complaint ¶ 215, Oct. 12, 2004 [TE-922]. 80

1 The issue then is whether the district court clearly erred by inferring

2 religious-based animus toward the Hasidim from the Village’s opposition to the

3 proposed Ramapo law that would have benefitted members of the Hasidic

4 community. Such opposition is related to legitimate land use concerns, free of any

5 religion-based hostility. Specifically, Tartikov was obliged to show that Pomona’s

6 opposition to the Ramapo legislation rested in significant part on religious animus

7 rather than permissible development concerns. The mere facts that (1) the

8 development was proposed by a Hasidic group and (2) Pomona opposed the

9 development are insufficient to support an inference of discriminatory intent.

10 The same is true for the district court’s finding with respect to the

11 January 2004 board resolution. The resolution expressed opposition toward

12 politicians who favored certain groups or developers. That those groups or

13 developers might have shared a common religious orientation does not, by itself,

14 suggest that religious animus was a “significant factor” in Pomona’s position. It was

15 clearly erroneous for the district court to conclude otherwise.

16 Mayor Marshall’s comment is subject to similar reasoning. The district

17 court clearly erred in relying on the “block vote” in finding animus because this

18 single instance of rhetoric made by one member of the board, completely divorced 81

1 from any discussion or proceeding related to the challenged 2004 Law, is insufficient

2 to support a finding that animus was a significant factor that motivated the board’s

3 decision to pass the 2004 Law. We again find insufficient evidence to support the

4 district court’s contrary conclusion.

5 That YSV was denied tax exempt status for the first time in 2004 is

6 similarly unconvincing. There is no indication that YSV lost its tax exempt status

7 because the Village harbored any religion-based animus. Furthermore, after TRC

8 purchased the Subject Property, the Village approved its tax exemption applications

9 in 2005 and 2006. The district court’s finding of discriminatory animus on this fact

10 was therefore clearly erroneous.

11 We turn finally to the evidence that Barr Laboratories, in proposing a

12 purportedly similar building project, received more favorable treatment than YSV.

13 In the years prior to the enactment of the 2004 law, Barr became interested in buying

14 a parcel in Pomona on which to build an office building and parking lot. The record

15 does not reveal the size of either. The Village board discussed the matter in May

16 2002. The minutes show that none of the trustees was “opposed . . . in concept” to

17 the proposal except Sanderson.250 But, as with the Anna Mann property, the record

250

Village of Pomona Board of Trustees Meeting Minutes, May 6, 2002 at 3 [TE-329]. 82

1 lacks sufficient information about Barr’s proposal for us to compare it to YSV’s

2 proposed yeshiva. Thus, the district court had no record basis for inferring

3 disparate treatment based on religion.

4 ***

5 This Court is entirely mindful of the broader context of this case.

6 On the one hand, we know that residents of suburban, exurban, and

7 urban communities often resist development pressure for a long list of

8 considerations. Some do not want change, population increases, more traffic, new

9 buildings, elimination of open green space, tall buildings blocking light, and a host

10 of other alterations of the patterns and circumstances of their lives. And citizens

11 have a perfect right to those views, to express them before boards and legislatures,

12 and to seek through the democratic and judicial processes results that accord with

13 their preferences as long as they do so honestly and without using the mechanisms

14 of government for the purpose of disadvantaging others for religious reasons.

15 The courts’ task is to view the evidence and come to a conclusion

16 whether religious bias played a significant role in the adoption of these laws.

17 The district court, which tried the case, has the predominant role in that

18 process. We have no doubt that it reached its conclusions after a careful and 83

1 conscientious review of the record. Insofar as the 2001 and 2004 Local Laws are

2 concerned, however, we have come to the “definite and firm conviction that a

3 mistake has been committed.”251 The record in this case reflects a simple story. YSV

4 explored with Pomona its plan to build a school on the Camp Dora property. There

5 was virtually no opposition to YSV’s plan. But its emergence, coupled with the

6 advice of the Village’s planning consultant, led to the realization that the Village’s

7 zoning laws did not adequately address permissible development for educational

8 purposes. Thus, the Village, after due consideration and before it knew that TRC

9 had purchased the Subject Property, passed the 2001 and 2004 local laws to address

10 that need. Those measures would not have impeded YSV’s planned project. They

11 looked to the future, to other as yet unknown educational developments, whether

12 on the unused portion of YSV’s property or elsewhere in the Village.

13 There simply is not enough evidence to permit a finding by a

14 preponderance of the evidence that the Village acted with discriminatory intent in

15 adopting the 2001 and 2004 local laws. Instead, the evidence suggests that legitimate

16 land use concerns precipitated the passage of these laws. We therefore find that the

17 district court clearly erred with respect to the 2001 Law and the 2004 Law. As will

251

Anderson,

. 84

1 appear, we reach a different conclusion with respect to the other laws at issue

2 here.252

3

4 C. Local Laws Nos. 1 and 5 of 2007

5 By 2007, the situation had changed drastically. There was public outcry

6 over the TRC proposal following news reports in January 2007 noting that the

7 rabbinical college would serve 1,000 students and the construction would include

8 multiple apartment buildings up to six stories high to house 4,500 residents. After

9 board elections in March 2007, Sanderson rose from deputy mayor to mayor and

10 Louie and Yagel, who had not previously served on the board, became trustees. All

11 three ran on a platform opposing the TRC project.

12 It is on this record, with these and still other significant facts not present

13 in 2001 and 2004, that the district court held that the board of trustees enacted the

14 2007 Dormitory and Wetlands Laws with discriminatory purpose.

15

252

Our conclusion that the district court erroneously found discriminatory effect suffices for reversal. See Arlington Heights,

(“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”). We therefore need not, and do not, address the court’s finding that the law had a discriminatory effect on Tartikov. 85

1 1. Discriminatory Purpose

2 The district court held that the 2007 Dormitory and Wetlands Laws

3 were motivated by discriminatory animus based on the following evidence: (1)

4 villager comments made at a January 22, 2007 public hearing on the draft 2007

5 Dormitory Law, (2) the absence of studies indicating the necessity or utility of the

6 2007 Wetlands Law combined with the Village’s knowledge that there were

7 wetlands on the property and the timing of the law’s adoption, (3) the exception for

8 single-family homes in the 2007 Wetlands Law, (4) the campaign promise of

9 Sanderson and Yagel and Louie to stop the threat of the TRC development, (5)

10 statements made by Sanderson, Louie, and Yagel “indicative of [Pomona’s]

11 prejudice against Tartikov and Orthodox/Hasidic Jews,”253 (6) statements made by

12 members of the community “express[ing] animus against Orthodox/Hasidic

13 Jews,”254 (7) the board’s rejection of proposals to increase the maximum height of

253

Tartikov,

. 254

. 86

1 dormitories and number of dining facilities allowed in the 2007 Dormitory Law, and

2 (8) the Village’s “behavior with respect to other proposed projects.”255

3 As these facts make plain, the 2007 Dormitory and Wetlands Laws were

4 enacted in a significantly different context than were the 2001 and 2004 Laws. These

5 differences are highly significant.

6 We begin with the laws themselves. The 2007 Dormitory Law and the

7 2007 Wetlands Law differ from the 2004 Law in that both 2007 Laws tightened,

8 rather than loosened, restrictions on building schools in the Village. For example,

9 it prohibited dormitories from occupying more than 20 percent of the total square

10 footage of all buildings on a lot. And it set a maximum height of 25 feet for any

11 dormitory building. The Wetlands Law prohibited building any structure within

12 100 feet of the boundary of any wetland without a permit. And it restricted the

13 persons who could apply for a permit to those who were deprived of all reasonable

14 use of their property, a sharp restriction of the trustees’ previous special permit

15 authority.

16 It is clear also that the board knew what TRC intended to do with the

17 property when it enacted the 2007 laws. True, there is scant evidence that the public

255

. 87

1 or the board knew any significant details about TRC’s plans or what its rabbinical

2 college might look like when the draft versions of the Dormitory and Wetlands Laws

3 were discussed at a public hearing on December 18, 2006. But that ignorance

4 dissolved on January 9, 2007 when Preserve Ramapo published an article describing

5 TRC’s plans for a rabbinical college that included housing for 4,500 adult students

6 and their families in buildings up to six stories high.

7 This context is crucial to understanding the board members’ thinking

8 when they enacted the laws. Having learned about the TRC project, many villagers

9 attended the extension of the December 18 hearing that took place on January 22,

10 2007. The purpose of this hearing, as Mayor Marshall repeatedly reminded

11 attendees, was to discuss the two proposed amendments to the Village zoning law,

12 and not whether the Village should or should not allow TRC to build the rabbinical

13 college that had not yet been proposed.256 But villager after villager spoke out

14 against the TRC project, and the hearing was characterized by “outbursts,” “shouts,”

15 and frequent interruptions.257 One villager complained that “there is no denying .

256

See, e.g., Tr., Village of Pomona Public Hearings on Local Law Amendment: Dormitories (continued), Local Law Amendment: Wetlands, Jan. 22, 2007, 13:10- 14:2 [TE-392]. 257

See, e.g., id. 20:12-20 [TE-399]; id. 21:9-22 [TE-400]. 88

1 . . what is going on here tonight is that there is a group who wants to take over this

2 [V]illage,” and that the rabbinical college would “totally change[] the entire concept

3 of the [V]illage,” forcing current villagers to “pay[] the expenses of somebody else’s

4 lifestyle.”258 Another found it “really funny how we’re talking about law, when you

5 have a group [the Hasidic community] that breaks every law there is.”259 Another

6 proclaimed that “[t]his is a disgrace. It is an absolute[] disgrace. You are in the

7 wrong town, and the wrong [V]illage. . . . If you allow this school to be brought to

8 this [V]illage, you’re going to destroy everything that everybody here worked for

9 all their life and I will never, ever, let that happen.”260 And yet another explained

10 that “in America, we have the sense of community. That’s our face. We’re going to

11 be another Kiryas Joel. That’s why we are emotional.”261

12 The villagers are not the only individuals who understood the

13 connection between TRC and the 2007 Dormitory and Wetlands Laws. The evidence

258

Id. 18:4-19:14 [TE-397-98]. 259

Id. 47:2-5 [TE-426]. 260

Id. 14:10-15:13 [TE-393-94]. 261

Id. 56:18-20 [TE-435]. 89

1 demonstrates that one board member hinted strongly to frustrated villagers that the

2 laws under consideration would prevent the TRC project or at least burden it

3 significantly. One villager asked Ulman bluntly whether she “feel[s] the new law

4 would make it more difficult for a project like this [i.e., TRC] anywhere in the area

5 to go through, or [whether she] feel[s] it would be less difficult for the project to go

6 through with the new laws.”262 The villager then asserted: “I think what everybody

7 is trying to say is we would like to make it tougher for these project[s] to go on,

8 rather than easier so if you can tell us how we can vote for that.”263 Ulman deflected

9 the question, but Trustee Lamer interjected: “You may have heard at the very

10 beginning [of the hearing] that Mr. Savad [TRC’s counsel] was complaining that

11 these amendments unfairly restrict some theoretical project that doesn’t exist, as far

12 as the [V]illage is concerned.”264 Lamer then reasserted: “Mr. Savad may believe

13 that these amendments unfairly restrict some theoretical project” before explaining

14 that the proposed amendments were “necessary to promote the public health, safety,

262

Id. 35:10-14 [TE-414]. 263

Id. 35:18-21 [TE-414]. 264

Id. 36:18-22 [TE-415]. 90

1 and welfare of the [V]illage . . . [a]nd that’s the reason why this proposal is before

2 us today.”265 It is reasonable to conclude that Trustee Lamer’s reminder that TRC

3 opposed the amendments permitted an inference, supported by the other evidence

4 we have cited, that the board was using facially neutral laws to discriminate against

5 the one entity it knew was hoping to build a school in Pomona

6 The board members were present for the hearing and heard the

7 villagers’ comments. And their private discussion following the conclusion of the

8 hearing demonstrates that those comments were on their minds. When discussing

9 the 2007 Dormitory Law, Trustee Lamer reasoned that the height restriction should

10 not be increased due to the differences between buildings with flat roofs such as

11 dormitories and buildings with pitched roofs such as single-family homes. He

12 stated also that one communal dining room “would be sufficient.”266 Trustee Banks

13 suggested reducing the maximum height to 20 feet to “be consistent with our law,

14 accessory use height is twenty feet.”267 Deputy Mayor Sanderson then said:

265

Id. 37:5-14 [TE-416]. 266

Id. 76:18-22 [TE-455]. 267

Id. 76:23-77:6 [TE-455-56]. 91

1 “Well, I think that based on the input from the public this evening, I 2 think it’s very clear that there is a great deal of concern about the 3 additional changes from the amendments that were first proposed on 4 December 18th. It’s my opinion that we should go back to the 5 December 18th amendments. We should cut out the two dining rooms 6 and go back to one. We should go back from 35 feet to 25 feet, which 7 is clearly more acceptable, and if we’re going to do that, we should 8 probably go back to 20 percent coverage instead of 25 percent, and 9 keep it the way it was at the first public hearing.”268 10 11 The board then voted to reject the proposed changes and adopted the 2007

12 Dormitory Law as it had been proposed at the December 18, 2006 meeting.

13 It is impossible for us to glean precisely how the board weighed the

14 villagers’ comments. But that is not our task on appeal. It is clear from Sanderson’s

15 statement that the comments influenced at least his decisionmaking process. Some

16 of those comments were susceptible to an inference of religious animus and hostility

17 toward the group that would be affected negatively by the 2007 Dormitory Law.

18 Viewing the record as a whole, including “the series of events” leading up to the

19 adoption of the 2007 Dormitory Law, the “context in which the decision[s]”

20 regarding the law were made, and “statements made by the decisionmaking body

21 and community members,”269 we cannot say that the district court clearly erred in

268

Id. 77:8-19 [TE-456]. 269

Chabad Lubavitch,

. 92

1 finding that religious animus was a “significant factor in the position taken by . . .

2 those to whom the decision-makers were knowingly responsive.”270 And this is so

3 notwithstanding that a proposal to add 4,500 new residents and multiple apartment

4 buildings to a small village of single family houses with a population of 3,200 almost

5 certainly would have provoked opposition regardless of any religious element.

6 We reach the same conclusion with respect to the 2007 Wetlands Law.

7 In finding discriminatory purpose, the district court relied on facts related to the

8 board’s decisionmaking process. These facts included the absence of any studies

9 conducted to determine the need for or most appropriate means of enacting

10 wetlands protection. The court relied also on comments made by villagers at the

11 January 22, 2007 hearing. We have concluded already that the board members, who

12 were present for that hearing and discussed the comments afterwards, were

13 responsive to those comments and the animus they embodied.

14 To be sure, there is little or no direct evidence of any personal religious

15 bias on the part of the trustees who passed these laws. But viewing the evidence in

270

Tartikov,

(quoting LeBlanc-Sternberg v. Fletcher,

(2d Cir. 1995)). 93

1 the holistic manner counseled by our precedent,271 we see no clear error in the

2 district court’s findings with respect to the 2007 Dormitory and Wetlands Laws.

3

4 2. Discriminatory Effect

5 The next and final question with regard to the 2007 Dormitory and

6 Wetlands laws is whether the district court clearly erred in holding that the laws had

7 a discriminatory effect on Tartikov.

8 For the 2007 Dormitory Law, the court based its discriminatory effect

9 finding on a finding that three provisions of the law would burden TRC’s planned

10 construction of dormitories unlawfully. The first two provisions were the exclusion

11 of multifamily dwelling units from the definition of “dormitory” and the prohibition

12 on separate cooking and dining areas. The court found that both restrictions

13 prohibited the types of residences TRC intended to build, which included “kitchens

14 in each residence so that students can diligently study . . . while also meeting their

15 religious obligations to their families.”272 The other offending provision was the 20

16 percent floor space restriction, which would limit dormitories to just 20,000 square

271

See Chabad Lubavitch,

. 272

Tartikov,

. 94

1 feet based on TRC’s planned 100,000 square feet of construction.273 Dormitories of

2 that size, the court calculated, could accommodate roughly 30 students and their

3 families – a number far short of what TRC had planned.274

4 Pomona appears to concede that Tartikov would face these burdens

5 because it advances no argument challenging the district court’s findings.275 It does,

6 however, fleetingly argue that the court erred by finding the 2007 Dormitory Law

7 would have had an effect sufficient for Tartikov to prevail on its RLUIPA

8 “substantial burden” claim.276 In that portion of its brief, it argues that the burdens

9 identified by the district court are insubstantial because students could live off

10 campus, TRC could buy more land, and living on campus was not essential to TRC’s

11 proposed Torah community.

273

274

275

Pomona Br. 52 n.18. 276

(“As [Tartikov] failed to [show discriminatory purpose], evidence on . . . discriminatory effect[] does not matter. Further, [Tartikov] failed to prove a substantial effect.”). We decline to draw any lines here for how much discriminatory effect suffices for an equal protection claim because that question is not close with respect to the 2007 Dormitory and Wetlands Laws. 95

1 Even if we were to credit these arguments, they would not persuade us

2 that the finding of discriminatory effect was clearly erroneous. There is sufficient

3 basis in the record to conclude, as the district court did, that on campus housing of

4 the nature Tartikov sought was important to the exercise of Tartikov’s faith because

5 it would allow students to be near their families while maintaining a diligent study

6 schedule. Further, Pomona has presented no evidence suggesting that the Village

7 and surrounding community had sufficient housing for 1,000 students and 3,500

8 additional family members to live within walking or even driving distance of the

9 TRC site without additional construction.

10 With regard to the 2007 Wetlands Law, the district court found that two

11 provisions working in tandem prevented construction of a TRC-like project

12 anywhere in Pomona. The 10 net acre minimum lot size for educational institutions

13 ensured that TRC’s lot was the only site in Pomona large enough for the proposed

14 college.277 And the required 100-foot buffer between constructed features and

15 wetlands guaranteed TRC could not build on the property, because the only suitable

277

. 96

1 location for a driveway fell within 100 feet of wetlands.278 While the 2007 Wetlands

2 Law allowed landowners who were deprived of all reasonable use of their property

3 to apply for a permit, the parties’ stipulated to the district court that TRC did not

4 qualify for a permit because its property could be put to reasonable use – though not

5 the use it desired.279

6 We find no error in the district court’s reasoning. Again in the context

7 of challenging the RLUIPA substantial burden finding, Pomona faults the district

8 court for not determining whether TRC could have regraded the property to comply

9 with the wetlands law without facing a substantial burden. Pomona points to no

10 facts suggesting that TRC could have constructed a driveway consistent with the

11 2007 Wetlands Law with or without regrading. Nor does it point to any evidence

12 that TRC could have constructed its proposed rabbinical college elsewhere in the

13 Village. Moreover, forcing TRC to regrade the property or buy new land – even if

14 doing so could have brought it into compliance with the 2007 Wetlands Law –

15 would have been a discriminatory effect of the law.

278

. 279

97

1 While the burden of showing discriminatory effect was on Tartikov

2 below, the burden of showing clear error here is on Pomona. It has not met this

3 burden. We find no error in the district court’s conclusion that the 2007 Dormitory

4 and Wetlands Laws had a discriminatory effect on Tartikov.

5

6 D. Remedy

7 The district court enjoined the Village from enforcing the offending

8 provisions of the four challenged laws against Tartikov. But its injunction went

9 much further than this. The court below prescribed how the Village must process

10 and review a possible application from TRC concerning its proposed rabbinical

11 college.280 Among other things, the injunction required the Village to exempt TRC

12 from any special permit or variance requirements, process its application

13 expeditiously, and perform “segmented review”281 of the application because “such

280

Special App. at 2-5. 281

“Segmentation means the division of the environmental review of an action such that various activities or stages are addressed under [state regulatory law] as though they were independent, unrelated activities, needing individual determinations of significance.” 6

(ah). 98

1 a review will be more protective of the environment.”282 The court also prohibited

2 the Village from enacting laws similar to the four challenged laws and retained

3 jurisdiction over “any and all additional remedies sought by [Tartikov] consistent

4 with” the judgment and injunctions.283 This relief goes too far.

5 Parts of the injunction conflict with state law. The requirement that the

6 agency tasked with reviewing any TRC application engage in segmented review

7 takes away authority that New York delegates to the reviewing agency.284 In

8 addition, the court’s requirement that the Village hold a public hearing within 62

9 days of receiving an application conflicts with the statutory time limit that, the

10 parties agree and we assume to be true, initiates the 62-day clock once an application

11 is complete.285

282

Special App. at 4. 283

. 284

See 6

(b); see also Arthur Ientilucci, Seqra: Down the Garden Path or Detour for Development, 6 ALB. L. ENVTL. OUTLOOK J. 102, 119-20 (2002) (noting an agency charged with reviewing an application determines whether segmented review is appropriate). 285

See Pomona Br. 52-53. 99

1 Moreover, much of the injunctive relief is speculative. TRC has not

2 submitted an application for its rabbinical college, and the Village has not taken any

3 action suggesting it would fail to follow the law in processing its application.286 The

4 injunction goes much further than is needed to remedy the injuries that Tartikov

5 actually suffered and that are the subject of this lawsuit.

6 We affirm insofar as the district court enjoined Tartikov from enforcing

7 the 2007 Wetlands and Dormitory Laws,287 but we vacate the majority of the

8 additional relief.288

9

10

286

Cf., e.g., Sterling Drug, Inc. v. Bayer AG,

(2d Cir. 1994) (finding it unnecessary to “fence in” a defendant with “a broad injunction” in light of its past activities when there was “no reason to believe” the defendant would fail to follow its legal obligations going forward); Galella v. Onassis,

(2d Cir. 1973) (modifying, among other things, a portion of an injunction prohibiting the plaintiff from coming within 50 yards of the defendant by reducing the distance to 25 feet, because the original injunction was “broader than is required to protect the defendant”). 287

The district court’s injunction focused on two specific provisions of the 2007 Dormitory Law. See Special App. 3. Our holding enjoins the Village from enforcing the entire law. 288

Specifically, we vacate decretal paragraphs 3-6, 7A-7I, 8-16, and 18-20. Special App. 1-6. 100

1 III. Tartikov’s Cross-Appeal

2 Tartikov challenges on cross-appeal the district court’s order dismissing

3 the as-applied challenges as unripe for consideration and the summary judgment

4 order in favor of Pomona on the RLUIPA equal terms and total exclusion provisions.

5 We address each in turn.

6

7 A. As-Applied Challenges

8 Having ruled on the scope of Tartikov’s standing to sue and affirmed

9 the judgment of the district court with respect to the 2007 Dormitory and Wetlands

10 Laws, the only question that remains is whether the court erred in holding that

11 Tartikov could not assert as-applied challenges to the 2001 and 2004 Laws under the

12 Equal Protection Clause or RLUIPA’s nondiscrimination or equal terms provisions.

13 To prove any as-applied claims under the Equal Protection Clause or RLUIPA’s

14 nondiscrimination and equal terms provisions, Tartikov would need to rely on the

15 same evidence of animus that purportedly supports its facial challenges. This

16 evidence, we have held, is insufficient with respect to the 2001 and 2004 Laws. The

17 as-applied claims therefore fail here for the same reason as the facial challenges.289

289

One additional issue is lurking in the background. TRC purchased the property 101

1 B. RLUIPA Equal Terms and Exclusion Claims

2 To prevail on an equal terms claim, a plaintiff must show that the

3 challenged law – by its terms or operation – actually differentiates between religious

4 and secular groups, not merely that it was enacted with the intent to adversely affect

5 the religious group.290 Here, the challenged laws are facially neutral and treat

6 religious and secular institutions equally. Tartikov has failed to make the necessary

7 showing.

8 The exclusion provision of RLUIPA forbids the total exclusion of

9 religious assemblies from a jurisdiction.291 The challenged laws do not totally

10 exclude all religious assemblies from Pomona. The district court correctly dismissed

11 these claims.

12

13

years after the 2001 Law was enacted. And while its purchase predates the 2004 Law, that law is effectively a more permissive version of the 2001 Law. Under these circumstances, buying into an injury in fact does not suffice for Article III standing. As we rest our holding on evidentiary grounds, however, we need not and do not rest our holding on this ground. 290

Chabad Lubavitch,

. 291

42 U.S.C. § 2000cc(b)(3)(A); see also Vision Church v. Village of Long Grove,

(7th Cir. 2006). 102

1 CONCLUSION

2 We AFFIRM the judgment insofar as it enjoins the Village from

3 enforcing the unconstitutional 2007 Dormitory and Wetlands Laws, but we

4 REVERSE with respect to 2001 and 2004 Laws and VACATE the relief that goes

5 beyond enjoining enforcement of the two unconstitutional laws.292 In addition, we

6 VACATE the portions of the judgment premised on claims for which Tartikov lacks

7 standing and REMAND for the district court to dismiss those claims.293 Lastly, we

8 AFFIRM the portions of the judgment challenged on cross-appeal.294

292

See note 288, supra. 293

Specifically, we refer here to the 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. 294

Specifically, we refer here to the as-applied challenges dismissed at the pleading stage and the RLUIPA equal terms and total exclusion claims resolved in the summary judgment order.