In an important decision, the Second Circuit Court of Appeals has concluded that in some circumstances environmental review may amount to a zoning action within the reach of RLUIPA, particularly when there is evidence of bad faith on the part of a municipal agency.

A summary of the case. In 1998, Fortress Bible Church purchased property in the Town of Greenburgh, New York to construct a larger religious facility than it had been operating in Mount Vernon. The property, which consists of 6.53 acres, would have 125 parking spaces, occupying 1.45 acres. The proposed church would accommodate 500 people and its religious school was intended to enroll up to 150 students.

The Church required three discretionary land use approvals from the Town: (1) site plan approval; (2) a waiver of the landscaped parking island requirement; and (3) a variance to allow the structure to be located closer to one side of the property. New Yorks State Environmental Quality Review Act (SEQRA) was triggered because the Churchs proposal required discretionary government approval.

In January 2000, the Church submitted a comprehensive traffic study and other information about potential adverse environmental impacts caused by the proposal. The Towns Planning Commissioner advised the Board that the Church had adequately mitigated the Towns traffic concerns and that the Board could issue a conditioned negative declaration pursuant to SEQRA. The significance of the issuance of such a declaration is that no Environmental Impact Statement (EIS), which calls for several steps, would be required.

At a July 2000 work session meeting with the Board, town officials noted concern with the Churchs tax-exempt status and requested that it donate a fire truck or make some other payment in lieu of taxes. Some Board members stated that they did not want the proposed property to be used as a church. After the Church declined to donate a fire truck or make some other payment in lieu of taxes, the Board issued a positive declaration, triggering the SEQRA review process.

Over the next several years, the Church provided all information required by it under SEQRA. The New York Department of Transportation also submitted comments to approve of the Churchs traffic study. The Town, however, continued to resist the Church proposal and there was evidence that at least one Board member instructed the Towns Planning Commissioner to kill the project. Even after the Church submitted all information required by SEQRA, the Town began to request new information and assert new issues to be addressed by the Church. The Church provided this information as well, but the Town halted the review process. In an unusual move, the Town then took over preparation for the EIS without notifying the Church it had done so for almost a month. In so doing, the Town included several other problems with the Churchs proposal that the Church would be required to address.

In June 2003, the Church sued the Town alleging violations of RLUIPA, the First and Fourteenth Amendments, and New York law. In April 2004, the Town denied the Churchs application and cited the following reasons in rejecting the application: “(1) violation of a recently enacted steep slope zoning ordinance; (2) stress on the police and fire departments; (3) retaining walls that constituted an attractive nuisance; and (4) traffic and parking problems.” (Decision, p. 9).

The Federal District Court found that the Town had violated the Churchs rights under RLUIPA, the Free Exercise Clauses of the First Amendment and New York Constitution, and Article 78 of New Yorks Civil Procedure Law. In particular, the Court found that the Town substantially burdened the Churchs religious exercise by acting in bad faith and using the SEQRA review process as a way to block the Churchs proposal (Click Here to read the Federal District Courts decision of over 200 pages).

“The district court ordered broad relief: (1) it aned the positive declaration and findings statement; (2) it ordered that the Churchs 2000 site plan be deemed approved for SEQRA purposes and enjoined any further SEQRA review; (3) it ordered the Board to grant the church a waiver from the landscaped parking island requirement; (4) it ordered the Zoning Board to grant a variance permitting a side building location; (5) it ordered the Town to issue a building permit for the 2000 site plan (6) it enjoined the Town from taking any action that unreasonably interferes with the Churchs project; and (7) it imposed $10,000 in sanctions for spoliation of evidence. The district court directed the parties to submit additional information with regard to compensatory damages.” Id. at 11.

The Second Circuit affirmed: “Though we agree that SEQRA itself is not a zoning or landmarking law for purposes of RLUIPA, we hold that when a government uses a statutory environmental review process as the primary vehicle for making zoning decisions, those decisions constitute the application of a zoning law and are within the purview of RLUIPA.” Id. at 12.

“By its terms, however, RLUIPA also applies to the application of a zoning law. 42 U.S.C. 2000cc-5(5). Although SEQRA by itself is not a zoning law, in this case the Town used the SEQRA review process as its vehicle for determining the zoning issues related to the Churchs land use proposal. The fact that these issues were addressed during the SEQRA review process rather than the Towns normal zoning process does not transform them into environmental quality issues. We therefore conclude that, in these circumstances, the Towns actions during the review process and its denial of the Churchs proposal constituted an application of its zoning laws sufficient to implicate RLUIPA [because:]” (1) the SEQRA review process was triggered because the Church was required to obtain three discretionary land use approvals; (2) the Town intertwined the SEQRA review process with its zoning regulations; (3) when review was underway, the Town focused on zoning issues rather than traditional environmental issues; and (4) holding that RLUIPA is inapplicable to what amounts to zoning actions under statutorily mandated environmental review, such as SEQRA, would allow municipalities to insulate zoning decisions from claims of violations under RLUIPA. Id. at 14-15.

Importantly, the Second Circuit notes that its decision does not apply to all environmental reviews processes. Rather:

To recap, in no sense do we believe that ordinary environmental review considerations are subject to RLUIPA. However, when a statutory mandated environmental quality review process serves as a vehicle to resolve zoning and land use issues, the decision issued constitutes the imposition of a land use regulation as that term is defined in RLUIPA.

Id. at 18. Municipalities across the country that have mandatory environmental review as part of the zoning review process, such as the Town of Greenburgh, may wish to carefully review this decision to determine if their environmental review constitutes a land use regulation under RLUIPA. A copy of the decision can be found here.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

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Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.

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