Twersky v. Town of Hempstead (E.D.N.Y. 2012) involves the construction of an ohel in a Jewish cemetery. “An ohel is a stand-alone structure customarily built over the graves of righteous scholars and leaders of the Hassidic Jewish community,” such as a rabbi of great stature. (Opinion at 2). In their complaint, Plaintiffs state of an ohel: “Besides being incumbent upon the decedent’s children to honor their father in accordance with Jewish tradition and law, it is a religious duty to build an appropriate ohel to properly respect a great community, spiritual and religious leader like Grand Rabbi David Twersky.” Plaintiffs’ RLUIPA and First Amendment claims concerning the construction of an ohel in a Jewish cemetery, however, were dismissed as not ripe for review due to their failure to exhaust all administrative remedies.

Background

“In 1928, Isaac Twersky purchased a burial plot (the “Twersky Plot”) at the Beth David Cemetery (the “Cemetery”). When Isaac Twersky died, the ownership of the Twersky plot passed to his three sons — Aaron Twersky, David Twersky and Mordecai Twersky. Beginning in the 1960s, a rift formed within the Twersky family, as a result of which, David Twersky and Mordecai Twersky were no longer speaking at the end of their lives. David Twersky died in 2001 and Mordecai Twersky died in 2007. The Twersky Plot is now owned by the seven children of David Twersky and the seven children of Mordecai Twersky. Plaintiffs Yechiel Mechel Twersky and Pinchas Twersky are the sons of David Twersky, and Intervenors Yitzchok Twersky and Duvid Twersky are the sons of Mordecai Twersky . . .

“After David Twersky died, Plaintiffs wished to build an ohel over his grave. In 2001, Plaintiffs met with Warren Rosen, President of the Cemetery, to discuss building the ohel. On February 22, 2001, S. Greenbaum Monuments sent documents to Rosen regarding the proposed ohel. Rosen provided S. Greenbaum Monuments with a ‘Foundation Order Correction List,’ which indicated that notarized permission must be obtained from Mordecai Twersky, the heirs of Aaron Twersky and the heirs of David Twersky. Mordecai Twersky, father of the Intervenors, advised Rosen that he objected to the ohel . . .

“In 2007, Plaintiffs began building the ohel. In March of 2008, Intervenor Duvid Twersky’s brother visited the Cemetery and saw the partially-built walls of the ohel. The Intervenors, like their father Mordecai Twersky, objected to the building of the ohel. On March 17, 2008, Intervenor Duvid Twersky wrote a letter to Raymond Schwarz, Supervisor of Inspection Services at the Town Building Department, advising him that a structure was being built on a burial plot without his consent, as a co-owner. Schwarz asked Charles Vollmer, an inspector with the Town Building Department, to go to the Cemetery and inspect the structure. Schwarz determined that a building permit was necessary because the ohel would be open to the public and people were likely to assemble within the ohel. On March 20, 2008, Schwarz issued a ‘Stop Work Order’ on construction of the ohel. Schwarz sent a letter to the Cemetery advising it of the Stop Work Order and informing the Cemetery that if the plot owners wished to file a building permit, the Cemetery would have to sign the application, as property owner. Rosen advised the Town that the Cemetery would sign the application if all the plot owners consented to the building of the ohel. On April 19, 2008, Intervenor Duvid Twersky wrote a letter to Rosen stating that his co-ownership of the burial plot was being violated by the construction of the ohel because the Intervenors did not consent to the construction . . .

“Around May 6, 2008, Plaintiffs submitted a building permit application, but the application was not signed by the Cemetery. Mark Schwarz, a Building Plans Examiner for the Town Building Department and brother of Raymond Schwarz, reviewed Plaintiffs’ application and issued a Planning Department Objection Sheet. The objection sheet indicated that ‘[a]n authorized member . . . of the cemetery must sign the application.’ No further review of the application was conducted. On June 9, 2008, the Town informed Plaintiffs that a variance was necessary in order to continue construction of the ohel. In February 2009, the Town notified Plaintiffs that a variance was not actually required. However, Plaintiffs were informed that they needed, among other things, to ‘[p]rovide a completed application signed by the property owner and notarized.’ On January 13, 2009 and July 19, 2010, a Department of Buildings’ Notice of Violation was generated due to the inactivity on Plaintiffs’ application.” (Opinion at 2-4).

Thereafter, Plaintiffs sued under RLUIPA and the First Amendment, alleging that the Town’s refusal to consider their building permit application without the Cemetery’s signature substantially burdened their religious exercise. Plaintiffs also claimed that the Intervenors violated their property rights under New York state law.

The Ripeness Doctrine

A court is without jurisdiction to consider a claim unless the claim is ripe for review. If a claim is not ripe for review, it must be dismissed. A plaintiff need not exhaust all administrative remedies if doing so would prove futile or where the zoning board of appeals “sits purely as a remedial body.”

In determining whether a land use case is ripe for review, courts examine four factors: “(1) whether the requirement that the plaintiff ‘obtain a final decision from a local land use authority aids in the development of a full record;’ (2) whether the property owner has exhausted the variance process; (3) whether ‘a variance might provide the relief the property owner seeks without requiring judicial entanglement in constitutional disputes;’ and (4) whether federalism principles further support a requirement of finality.” (Opinion at 5).

The District Court concluded that Plaintiffs should have appealed to the zoning board of appeals Schwarz’s interpretation that the building code required Plaintiffs to obtain the Cemetery’s signature. The Court found that appealing to the zoning board would also aid in the development of a full record and would help clarify whether the Cemetery’s signature “was required pursuant to a neutral town policy, or was, instead, a requirement invented by Schwarz.”

As for the second and third factors, the record is not clear as to whether Plaintiffs could have obtained the relief they sought through an area variance. Plaintiffs did not pursue an area variance. “[E]ven if a variance was not possible, Plaintiffs had an administrative remedy available that they did not pursue.”

The Court also concluded that “federalism principles weigh in favor of a requirement of finality,” reasoning that the zoning board is best suited to interpret the Town’s building code. Plaintiffs failed to establish that an appeal to the zoning board would prove futile.

The court in Twersky declined to apply the more relaxed First Amendment ripeness inquiry because Plaintiffs failed to demonstrate that (1) they suffered an immediate injury and (2) an appeal to the zoning board of appeals would not further define their alleged injuries. In so doing, the Court found that, in this case, memorialization of individuals does not constitute an immediate injury. The Court also declined to consider Plaintiffs’ state court claims. To read this decision, click 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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