On March 27, 2015, the Southern District of New York granted summary judgment in favor of all defendants in the consolidated action Bernstein v. Wesley Hills, 08-CV-156; 12-CV-8856 (KMK), (the “Wesley Hills” Action). The court’s 76-page decision begins with a recitation of the long procedural history of the case and the separate 2004 action filed by four Villages within the Town of Ramapo: the Village of Wesley Hills, the Village of Chestnut Ridge, the Village of Montebello, and the Village of Pomona (the “Chestnut Ridge Action”). In the Wesley Hills Action, the plaintiffs (religious corporations and individuals affiliated with the Chofetz Chaim sect of Orthodox Judaism) claim the Villages (that were plaintiffs in Chestnut Hill Action) discriminated against them in attempting to stop development of a proposed religious educational center and multi-family housing development, and in allegedly colluding to bring the Chestnut Ridge Action.

The Chestnut Ridge Action

The Chestnut Ridge Action was filed after the Town of Ramapo issued a negative declaration under the State Environmental Quality Review Act (“SEQRA”) for development plans prepared by a predecessor to a Wesley Hills plaintiff, which included a religious school, community center, and 60 units of multi-family housing. The development, known as Kiryas Radin, was proposed to be built on the former U.S. Army Nike Ajax antiaircraft missile site (Nike Battery NY-99) operational from 1956 to 1963 (the “Nike Site”). The Chestnut Ridge Action also concerned the Villages’ challenges to the Town of Ramapo’s adoption of an Adult Student Housing Law (“ASHL”), which allowed more-dense housing development if accessory to a postsecondary educational use. The ASHL increased the development potential of the Nike Site, which under the previous single-family residential zoning was limited to eight housing units.

In the Chestnut Ridge Action, the trial court granted the plaintiffs a preliminary injunction to prevent the Kiryas Radin development. However, the Chestnut Ridge plaintiffs were unable to post the court-mandated financial assurance and the developers proceeded to complete the project. Two years later, the New York State Appellate Division considered the case (appealed based on the Villages’ standing) and issued another injunction that prohibited the occupation of Kiryas Radin. On remand, the lower court dismissed all charges based on adoption of the ASHL but found that Ramapo violated SEQRA when it failed to take a “hard look” at the potential environmental impacts of Kiryas Radin. Ramapo appealed that decision and the Appellate Division reversed the court’s SEQRA finding and dismissed all of the plaintiffs’ claims without ruling on the Chestnut Ridge defendants’ counterclaims.

The Wesley Hills Action

In the Wesley Hills decision, the court explains that “[t]he heart of Plaintiffs’ case is their allegation that Defendants colluded to file the Chestnut Ridge action….” Therefore, the court determined that the Wesley Hills plaintiffs’ claims were dependent on whether there was an equal protections violation. The Wesley Hills defendants would have to show that the Chestnut Ridge plaintiffs (now the Wesley Hills defendants) did not bring legal challenges against development projects that were not run by members of the Hasidic community but similar in all other material respects. Since filing the Chestnut Ridge Action was a protected First Amendment activity, the Wesley Hills defendants (formerly the Chestnut Hill plaintiffs) were entitled to qualified immunity unless their actions violated the Equal Protection Clause.also b/c I comments on your last post a

As an initial matter, the court dismissed the Wesley Hills plaintiffs’ contention that the Second Circuit’s decision in, Fortress Bible Church v. Feiner, 694 F. 3d 208 (2d Cir. 2012) (discussed here) eliminated the requirement that plaintiffs provide evidence of a similarly situated comparator if defendants inappropriately employed SEQRA. The court did not agree, holding that Fortress Bible considered the question of when SEQRA review constitutes the implementation of a land use regulation under RLUIPA, and did not consider or in any way limit Defendants’ qualified immunity when pursuing First Amendment-protected activity.

As to the merits of the equal protection claim, the court found that the Wesley Hills plaintiffs failed to present any evidence of a comparator development “similarly situated in all material respects” to Kiryas Radin. On that basis alone, plaintiffs’ equal protect claims failed. The court, however, also found that the Wesley Hills plaintiffs failed to raise an issue of material fact with respect to the Villages’ discriminatory intent, although the court did not question the sincerity of plaintiffs’ allegations:

Having lived and worked with residents and officials from the Villages during these many years, Plaintiffs firmly believe that they have been targeted because of their religious beliefs, even if they cannot point to discriminatory statements by Defendants. The Court is sympathetic: who would know better than the Parties in this case whether the current dispute is a product of the decades-long tension between the Hasidic community and the Villages of Ramapo? However, the Court’s role in evaluating competing motions for summary judgment is not to take the Plaintiffs (or Defendants) at their word, however sure Plaintiffs might be; rather, the Court must evaluate the evidence, if any, in support of their claims. Because Plaintiffs have offered almost no evidence in support of their claims, and certainly not enough to raise a contested issue of material fact, the Court must grant summary judgment in favor of Defendants.

Finally, the court considered the Wesley Hills plaintiffs’ substantial burden [§2000cc(a)(1)] and nondiscrimination [§2000cc(b)(2)] RLUIPA claims, which were initially raised as counterclaims in the Chestnut Ridge Action. Applicability of these RLUIPA claims, however, hinged on two questions: (1) in filing the Chestnut Ridge Action, did the Defendants “impose or implement” a land use regulation, and (2) if not, did Defendants take a “government action” in violation of RLUIPA? The court answered each question in the negative, finding that the application of RLUIPA did not reach so far. Since Ramapo was the “involved agency” (as defined by SEQRA) that actually implemented and controlled SEQRA review of Kiryas Radin, it was the only entity that could have “implemented” such regulation, as opposed to the individual village defendants. Because Congress made no mention of “enforcing” or “litigation relating to” land use regulation in the text of RLUIPA, the court reasoned that its holding was consistent with the intent and plain language of RLUIPA. Likewise, the court did not find that RLUIPA’s mention of a “government practice” under the section of that statute that governs judicial relief [§2000cc-2] could be interpreted to define a distinct cause of action. The use of the term “government practice” in §2000cc-2 merely refers to the types of violations outlined in §2000cc.

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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.

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.