Professor Kate Shaw’s Texas Law Review article Beyond the Bully Pulpit won the American Constitution Society’s Cudahy Award on Regulatory and Administrative Law. Seventh Circuit Judge David Hamilton presented her paper at the ACS National Convention in early June. Congratulations to Professor Shaw!
May 17, 2014 LoHud/The Journal News - In the struggle between religious freedom and the right to protect your neighborhood, taxpayers in the Lower Hudson Valley have lost more than they have won battling religious-based developments.
And the cost of resisting faith-based building can be steep. In the case of Greenburgh, which fought for about a decade with Fortress Bible Church over its plan to build a 500-seat chapel and school for 150 students, the town is paying a $6.5 million settlement after the courts found it had violated the church's constitutional rights and a federal law known as RLUIPA.
Several municipalities in Westchester and Rockland counties have failed to fend off challenges invoking the Religious Land Use and Institutionalized Persons Act — which is intended to guard against discrimination in zoning laws — and other protections. Those cases have racked up millions in legal fees and to settle claims brought by religious organizations trying to build in the region.
"For most elected representatives in this day and age of tight budgets, they're afraid of having to finance these cases all the way to the Supreme Court," said Marci Hamilton, the chair in public law at Yeshiva University's Benjamin N. Cardozo School of Law who specializes in religious freedom issues. "So this clearly unconstitutional law keeps rolling around the courts and wreaking havoc in residential neighborhoods."
The costs for municipalities to fight land-use lawsuits related to religious development have increased significantly since Congress enacted RLUIPA in 2000, legal experts say. Part of the reason is plaintiffs can collect attorney's fees and, in some cases, receive damages for delayed cost of construction.
Greenburgh is now among a cadre of communities nationally that have fought RLUIPA and lost. In the town's case, the courts found officials had acted in bad faith and illegitimately used the environmental review process as a way to block the church's proposal. Supervisor Paul Feiner notably took issue with the church's tax-exempt status and asked Fortress Bible to donate a firetruck as its application was being considered.
Now taxpayers in Greenburgh's unincorporated section are expected to foot the settlement, at least $1 million of which the town says is covered by insurance. Those taxpayers will likely be on the hook for yearly payments that equate to roughly one percent of the unincorporated section's annual tax levy over 10 years starting in 2015, as the town pays back what was borrowed to cover the settlement.
That expense could endanger the town's ability to stay within the state-mandated tax cap without cutting services or spending, though Feiner says the town remains committed to not busting it.
Nicholas Ward-Willis, the lead attorney for Fortress Bible, a nondenominational congregation that recently moved to Tarrytown, said the Greenburgh case demonstrates what happens when a municipality "goes bad" and ignores the facts and law. The settlement is believed to be the largest ever paid by a municipality in an RLUIPA case, according to his law firm, Keane & Beane.
"(Greenburgh) did everything wrong here," Ward-Willis said. "You had witnesses who weren't credible and a supervisor who was directing the town attorney to find ways to deny the application. It's a big lesson and I think most municipalities will learn from the lesson. It's also an expensive one."
Feiner has maintained that Fortress Bible's plan to build a chapel on the proposed location is dangerous because cars approaching the site would come over a hill and wouldn't have time to stop before the church's entrance. He has also called on Congress to amend RLUIPA to provide local governments with an avenue to independently review traffic safety concerns.
"I feel that we were fighting very hard to protect the safety of residents," Feiner said. "The fact that nothing has happened on that property for years, maybe some lives have been saved. Maybe there would have been accidents. Maybe there would have been tragedies."
Residents living near the wooded parcel where the church would be built off the Sprain Brook Parkway have also objected to the project as being out of scale for the neighborhood.
"I'm opposed because there's going to be a lot more traffic," said Ellen Isenberg, who lives with her boyfriend in a house down the street from the property. "It's a residential neighborhood and so quiet and peaceful. If they start blasting away, that will also bring out all the wildlife."
Mamaroneck's costly case
Greenburgh has company when it comes to being on the losing end of an RLUIPA case. The Village of Mamaroneck agreed in 2008 to pay $4.75 million to a Jewish day school, and doled out a combined $989,264 to three outside law firms that represented the village in the case.
Mamaroneck officials say they were not aware of any cuts or reductions in services as a result of the settlement, the largest in village history. The cost to repay bonds taken out to cover the settlement were worked into the village's finances, which have included about $1.14 million in principal and interest payments since 2009. A former village mayor blamed the settlement as part of the reason behind a 4.3 percent tax hike in 2008-09.
"Whenever you have anything like this where people put you in a situation where you have to use money to get out of it, you're taking money away from other priorities," said Kathy Savolt, who was part of the village board that signed the settlement. "You just had to clear the decks and move on."
The Westchester Day School did not respond to requests for comment.
When it comes to RLUIPA, municipalities have resources to fight these cases, including insurance, though intentional wrongdoing is not covered, legal experts say. There are also communities that have successfully repelled claims in cases that often require years to resolve.
Chicago prevailed after an association of 40 churches got together and argued that the city's zoning laws violated the U.S. Constitution and RLUIPA. So did New Milford, Connecticut, which objected when a couple began hosting prayer group meetings in their home on Sunday afternoons.
The courts aren't in agreement when it comes to whether damages should be awarded under RLUIPA. But the violation of a religious organization's constitutional rights opens up a municipality to the risk of paying millions.
Pomona v. rabbinical college
The Village of Pomona is trying to join the list of communities that have come out on the winning end. It has been in federal court with the Congregation Rabbinical College of Tartikov since the religious organization sued in 2007, arguing the village's land-use regulations and conduct prohibited the construction and operation of a rabbinical college on a 130-acre site.
With a population of about 3,000, Pomona had spent at least $1.5 million in legal fees as of March to fend off Tartikov's challenge. Those bills have required Pomona to bolster its finances with a property-tax hike of 70 percent implemented in 2008-09. Another double-digit tax increase is expected for 2014-15 to help keep up with payments.
Hamilton, who also represents Pomona, said the village is fighting an attempt to impose multifamily housing under the umbrella of RLUIPA in a zone where only single-family homes are permitted.
"I hope members of Congress are paying attention to what they have brought on a very tiny village," Hamilton said. "It's only RLUIPA that makes this possible."
The expanding Orthodox Jewish population has brought the specter of RLUIPA to many proposed developments in the Ramapo area. The conflict between accommodating those needs and upholding local zoning codes has played out in courts and neighborhoods across the town and its villages.
Some taxpayers, including Richard Sumner, 75, said they stand behind the village because if they don't, the character of the single-family-home community could be gone for good.
"This has been relatively a rural area. It would be nice if it could stay that way," said Sumner, who moved to the village about 20 years ago. "Our taxes are going up by $400 to $500 to just make the payment for the lawyers. We don't mind paying that."
Paul Savad, an attorney representing Tartikov, said the congregation has also spent "seven figures" to continue its fight over something "that should be worked out."
"This religious use in 100 acres should be allowed. That's my opinion," Savad said. "I believe the only reason it's not is because who the applicant is."
Savad, who also successfully represented another religious organization in an RLUIPA case filed against the Village of Suffern, compared nationwide court battles over the law with the ones in the 1960s over the Civil Rights Act.
"There was a government fighting, people suing — a huge amount of expense was spent until eventually the courts, over a period of years, straightened this all out and clarified exactly the intent of the Congress passing the civil rights law. This is also happening and will happen in RLUIPA," Savad said.
He added: "I think eventually, there will be a well-settled body of law that will make this type of expense lessened. ... We're literally the pioneers. The villages, municipalities are pioneers unwittingly."
Bill Clinton signed the Religious Land Use and Institutionalized Persons Act into law. It was passed unanimously by Congress in 2000.
• The land-use provisions of Religious Land Use and Institutionalized Persons Act protect individuals, houses of worship and other religious institutions from discrimination in zoning laws.
• The institutionalized persons provisions require that state and local institutions not place arbitrary or unnecessary restrictions on religious practice.
By the numbers
$6.5 million: cost of Greenburgh's 2013 settlement
$4.75 million: cost of Mamaroneck's 2008 settlement
$450,000 in legal fees and $10,000 civil penalty: Cost of Airmont's case
$1.5 million: Pomona's legal feesin ongoing case
$200,000: Suffern's legal fees from 2010 settlement