OPINION AND ORDER
“This case presents the familiar conflict between the legal principle of non-discrimination and the political principle of not-in-my-backyard.” New Directions Treatment Servs. v. City of Reading,
I. Background
The Court assumes the following facts, largely drawn from Plaintiffs’ Second Amended Complaint, as true for purposes of the instant Motion. Plaintiffs have brought this action to challenge the aforementioned zoning ordinances adopted by Defendant Village of Pomona (the “Village”); Plaintiffs claim that the ordinances unlawfully prohibit Plaintiff Congregation Rabbinical College of Tartikov (the “Congregation”) from owning, holding, building,
A. The Parties
Plaintiffs are corporations and individuals affiliated with the Orthodox Jewish community, including various sects of the Hasidic community, all of whom allege an interest in the construction of a rabbinical college on the Subject Property. (Id. ¶¶ 24-27.) The Congregation, the owner of the Subject Property, is a religious corporation that was formed in 2004 with the aim of constructing a rabbinical college and related facilities on the Subject Property. (Id. ¶ 10.) Plaintiff Kolel Belz of Monsey (“Kolel Belz”) is a religious corporation that serves more than 200 families and purports to “represent! ] the interests of itself and the broader Orthodox community in actively seeking trained” rabbinical judges (“dayanim ”) to “conduct the activities of rabbinical courts.” (Id. ¶¶ 34-35.) Plaintiffs Rabbi Mordechai Babad (“M. Ba-bad”), Rabbi Wolf Brief, Rabbi Hermen Kahana, Rabbi Meir Margulis, Rabbi Gergely Neuman, Rabbi Meilech Menczer (“M. Menczer”), Rabbi Jacob Hershkowitz, Rabbi Chaim Rosenberg, Rabbi David A. Menczer (“D. Menczer”), and Rabbi Aryeh Royde (collectively, the “Individual Plaintiffs”) are trained Rabbis who seek to live and to teach and/or to study at the Congregation’s proposed rabbinical college. (Id. ¶¶ 11-20.) Defendants consist of the Village, its Mayor, Nicholas Sanderson, and the members of its Board of Trustees, Ian Banks, Alma Sanders Roman, Rita Louie, and Brett Yagel. (Id. ¶¶ 22-23.)
B. The Religious Significance of a Rabbinical College
According to Orthodox Jewish belief, Orthodox Jews are not permitted to resolve conflicts in the secular court system. (Id. ¶ 54.) Rather, the Orthodox Jewish religion requires that Orthodox Jews resolve conflicts in rabbinical courts before rabbinical judges applying Jewish law. (Id.) The Orthodox Jewish community therefore is obligated by religious belief to create rabbinical courts in every locale where Orthodox Jews live. (Id. ¶¶ 54-55.) Currently, however, because there are very few trained rabbinical judges in the United States, “there are only a very few Rabbinical [cjourts ... serving Orthodox Jews in the entire United States,” and those courts are “extremely overburdened.” (Id. ¶ 49.)
Plaintiffs allege that by building the rabbinical college, the Congregation seeks to ameliorate the “severe” shortage of trained rabbinical judges in the Orthodox Jewish community. (Id. ¶¶ 25, 33.) While several other rabbinical colleges exist in the United States, “[t]he existing [institutions] are insufficient to meet the need of students” who wish to become rabbinical judges and to train the number of “Rabbinical [j]udges needed to serve the Orthodox Jewish community.” (Id. ¶ 82.) Moreover, not all of the rabbinical colleges in the United States offer the “full course of study or religious environment” that the Congregation’s planned rabbinical college will offer. (Id.) Although Plaintiffs acknowledge that one rabbinical college already offers the same type of program that the Congregation’s rabbinical college plans to offer — Kollel Beth Yechiel Mechil of Tartikov, located in Brooklyn, New York — that “facility is extremely overcrowded and ... [i]ts doors have been shut for several years to new rabbis because of ... dire space limitations.” (Id. ¶ 48.)
C.The Congregation’s Planned Rabbinical College
The Congregation’s planned rabbinical college will be “devoted solely to religious
The academic format of the planned rabbinical college “is based upon strenuous religious study and prayer during the hours of 5:00 a.m. to 10:30 p.m., with meal breaks.” (Id. ¶ 60.) Plaintiffs believe that “it is essential for these students to live, study and pray in the same place in order to minimize outside influences and to intensify the religious learning experience.” (Id. ¶ 65.) In accord with Plaintiffs’ belief that “[r]esidential housing is essential to the training provided by” a rabbinical college, the Congregation’s rabbinical college will include housing for the rabbinical students. (Id. ¶ 64.) Such housing must accommodate families, as many students “will be married, some with young children.” (IcL ¶¶ 59, 66.)
Additionally, because “Orthodox Jews must pray three times per day, in morning, afternoon and evening services,” (id. ¶ 63), Plaintiffs allege that it is essential to their religious beliefs that the rabbinical college and the residential housing be close in proximity to synagogues (“shuts ”), (id.). Accordingly, the planned rabbinical college will include up to ten shuts to accommodate Orthodox Jews of all sects and traditions, including Ashkenazic, Sephardic, and other Hasidic and Orthodox sects. (Id. ¶ 68.)
The Congregation’s rabbinical college will also include four rabbinical courtrooms on campus, “which will be used to litigate and settle disputes, and as teaching facilities for students to become certified [r]abbinical [j]udges.” (Id. ¶ 69.) The campus will further house “multiple libraries, which will contain the books necessary for the educational program.” (Id. ¶ 70.)
While the Orthodox Jewish religion prescribes a rigorous program for the certification of rabbinical judges, Plaintiffs allege that no formal accreditation process exists for the program that will be offered by the rabbinical college. (Id. ¶¶ 105-06.)
D. The Subject Property
The Subject Property consists of a 100-acre tract of land located within the Village and also within the larger Town of Ramapo. (Id. ¶¶ 1, 73, 75.) The Congregation purchased the Subject Property in August 2004 with the intention of building thereon its rabbinical college and related facilities. (Id. ¶¶ 10, 73.) Around the same time, an “additional contiguous 30 acres was [sic] purchased by an affiliate of the Congregation to serve as a buffer between the [r]abbinical [c]ollege and the neighboring community.” (Id. ¶ 74.) Plaintiffs allege that “[t]he Subject Property is uniquely suited to meet the needs of the Congregation” in building the rabbinical college. (Id. ¶ 76.)
According to Plaintiffs, “the Subject Property is the only available parcel of land” that is both appropriately sized and situated in close proximity to the “religious infrastructure and population,” as required for a rabbinical college. (Id. ¶ 83.) Plaintiffs further allege that the Subject Property also is an appropriate location for the
E. The Village’s Land Use Ordinances
Plaintiffs claim that the Village’s land use ordinances prohibit the Congregation from building its rabbinical college on the Subject Property. (Id. ¶¶ 92-95.) First, Plaintiffs allege that the Village’s zoning laws generally prohibit the Congregation from building the rabbinical college itself. The entire Village, including the Subject Property, is designated as an “R-40 District,” which “requires a minimum of 40,-000 square feet per lot (approximately one acre) for the development of one-family homes,” (id. ¶ 88). See also Vill. of Pomona, N.Y.Code § 130-5. The Village’s Zoning Code permits a limited number of uses on land within the Village’s boundaries— e.g., one-family residences, houses of worship, libraries and museums, public parks and playgrounds. See Vill. of Pomona, N.Y.Code § 130-9(A). According to Plaintiffs, a rabbinical college could not qualify under any of the uses permitted by the Village. While the Village does grant, upon approval by either the Village Board of Trustees or the Village Board of Zoning Appeals, certain special use permits, Plaintiffs allege that a rabbinical college could not qualify as a special use under the other provisions of the Village’s zoning Code. (SAC ¶ 91.) Specifically, although Sections 130-4 and 130-10 of the Village Zoning Code empower the Board of Trustees to issue a special use permit for “educational institutions,” Plaintiffs allege that Section 130-4’s restricted definition of “educational institution” as “[a]ny private or religious ... school conducting a full-time curriculum of instruction a minimum of five days per week for seven months per year and accredited by the New York State Education Department or similar recognized accrediting agency,” Vill. of Pomona, N.Y.Code § 130-4 (emphasis added), prevents the rabbinical college from being permitted as a special use. (SAC ¶ 93.) Plaintiffs allege that no formal accreditation process exists for the rabbinical college, (id. ¶¶ 105-06), and thus claim that the rabbinical college cannot qualify under the Village’s land use ordinances as either a permitted use or a special use under Sections 130-9 and 130-10, (id. ¶ 95.)
Plaintiffs further allege that the Village’s land use ordinances prohibit the Congregation from building residential facilities requisite to its rabbinical college. Although the Subject Property consists of a 100-acre tract of land, it is considered a single “lot” under the Village’s zoning law. (Id. ¶ 89.)
Based on these provisions of the Village’s Zoning Code, Plaintiffs argue that “there is no question that the College’s proposed use is forbidden within the Village.” (Id. ¶ 111.)
F. The Village’s Environmental Regulations
In April 2007, the Village adopted a wetlands protection ordinance, which requires a 100-foot buffer around wetlands of 2,000 square feet or more. See Vill. of Pomona, N.Y.Code § 126-3(A). Plaintiffs contend that the Village enacted this law “specifically to prevent the Hasidic Jewish community from locating and obtaining housing within the Village.” (SAC ¶ 174.) Plaintiffs further allege that “the ... wetlands law ... exempts nearly every lot in the entire Village, except for the [Subject Property] (and perhaps a very few other uses, if any).” (Id. ¶ 169.) Accordingly, Plaintiffs challenge the law as “intended to restrict development of the [Subject Property], which contains 37 acres of wetlands.” (Id.H 171.)
G. Discriminatory Purpose
Plaintiffs allege that the Village adopted the challenged ordinances with the deliberate purpose of precluding construction of the rabbinical college. (Id. ¶¶ 156-159.) Specifically, Plaintiffs contend that the timing of the enactment of some of these zoning laws suggests discriminatory animus. For example, the Village’s definition of “educational institution” was amended one month after the Congregation’s August 2004 purchase of the Subject Property to require that a qualifying institution be “accredited by the New York State Department of Education or a similar recognized accrediting agency,” Vill. of Pomona, N.Y.Code § 130 — 4. (SAC ¶ 156.) Just a few months thereafter, in late 2004, the Village further amended its Zoning Code to exclude from its definition of “dormitory” any single-family, two-family and multifamily dwelling units, see Vill. of Pomona, N.Y.Code § 130-4, and to limit the number of dormitories per lot. (SAC ¶¶ 157-58.) In January 2007, the Village again amended its Zoning Code to limit the size of dormitory buildings — relative to the total square footage of all buildings on the
Plaintiffs further allege that the “ ‘Dormitory’ legislation [passed in 2007] was ... designed and enacted specifically to prevent the Hasidic Jewish community from residing and obtaining housing within the Village,” as evidenced in part by “[c]ommunity opposition ... through public comment at the hearing on the dormitory legislation.” (Id. ¶¶ 164-65.) Plaintiffs highlight the following comments, made by the Village’s then-Mayor, Herbert Marshall, in response to the community’s opposition as further evidence of the discriminatory motive behind the dormitory legislation:
Ladies and gentleman, let me say something. We sitting at this table have limitations that are placed on us as to what we can say, and what we can’t say, because our attorney tells us what we can say and what we can’t say. I can’t say what I feel — I can’t — if I agree with you, I don’t agree with you, I don’t have that luxury of being able to say that here. All that I can say is that every member of this board works very, very hard to do what is best for this community. You have your issues. Don’t assume because no one has gotten up and said, wow, I agree with you, oh boy; don’t assume that because we didn’t do that we don’t agree.
(Id. ¶ 166.)
Plaintiffs further allege that Mayor Sanderson and Trustees Yagel and Louie were elected to office based on campaign promises to “fight this plan” and “stand up to this threat,” ostensibly referring to the Congregation’s plan to build the rabbinical college. (Id. ¶ 178.) Plaintiffs also cite an article published in a local newspaper, the Journal-News, which stated that Mayor Sanderson defeated former Mayor Marshall “in a contest defined by land-use concerns sparked by plans for a rabbinical college.” (Id. ¶ 198.) Plaintiffs also allege that Trustees Yagel and Louie “expressly warned a civic association to be careful not to allow discriminatory statements to slip out.” (Id. ¶ 183.) Mayor Sanderson allegedly stated publicly in 2007 that “[t]he single most important issue facing the village at this time is the as yet un-proposed, but leaked, [r]abbinical [e]ollege development,” and that the Village should “maintain[ ] its cultural and religious diversity.” (Id. ¶ 180 (fourth alteration in original).) It is further alleged that, prior to his election, Mayor Sanderson “appeared in a campaign video [in which] he said that the [r]abbinical [c]ollege could not only ‘change the village,’ but could change ‘the makeup of the village,’ ” suggesting, in Plaintiffs’ view, his intention of “controlling the influx of Hasidic Jews into the Village.” (Id. ¶ 179.) Once Mayor Sanderson was elected, he allegedly stated “if they use RLUIPA to get us, we will fight,” further noting that “it would cost $1,000,000 to fight a RLUIPA challenge, and ... the funds could be raised over ‘3-5 years’ before a lawsuit would be filed.” (Id. ¶ 181, 184.)
In addition to these and other specific allegations concerning animus toward the rabbinical college, Plaintiffs also generally allege that there has been “[Community [h]ostility to Hasidic Jews” in the Village, which “played a significant role in the discriminatory actions undertaken by the Defendants and led directly to targeting of various Jewish uses of the Subject Property.” (Id. ¶ 186.) In support of this allegation, Plaintiffs cite various slurs and other offensive statements about Hasidic Jews made by members of the Village’s community. (Id. ¶¶ 188-95.) The various statements include an alleged statement by Doris Ulman, the Village’s Attorney, at a seminar on RLUIPA that “residents should not ‘cave into them and sell our
H. The Congregation Contacts the Village Regarding the Project
The Congregation does not allege that it submitted a formal application for the planned rabbinical college to the Village. Rather, the Village first became aware of the Congregation’s plan for the rabbinical college when a “hypothetical sketch plat ... was apparently leaked to the ‘Preserve Ramapo’ group,” a “local private organization that has” expressed concerns about “population growth in Ramapo’s Hasidic communities.” (Id. ¶¶ 175-76.) Plaintiffs allege that the Village amended its zoning laws in a discriminatory manner in 2004 and later in 2007 based on its knowledge from this leak of the Congregation’s plan to build the rabbinical college.
The Congregation reached out to the Village Board of Trustees and other Village representatives in March and April 2007 to discuss the project and whether it could “be accommodated by the Village.” (Id. ¶¶ 208-09.) After apparently receiving no response from the Village, counsel for the Congregation telephoned Ulman on May 9, 2007 to discuss the project. (Id. ¶ 210.) Counsel subsequently followed up on May 10, 2007 with two letters requesting a “[pjublic [mjeeting, for an informal design and technical review of a proposed project,” (id.), as is encouraged under the Village’s Zoning Code. See Vill. of Pomona, N.Y.Code § 130-28(E)(3) (“Applicants are encouraged to submit a preliminary, informal application and to discuss it with the appropriate permitting Board prior to formal submission of a complete and detailed special permit application.”). Ulman responded by letter on May 14, 2007, stating
I do not understand why you would request any meeting to discuss the design of a project that is illegal until you have applied for the required zone change. At no time did your letters or discussions with ••me suggest that a public meeting was requested to discuss the project. In my opinion, any meeting, public or private, would be premature.
(Defs.’ Ex. R; SAC ¶ 211.) On June 22, 2007, the Congregation contacted Mayor Sanderson, the Village Board of Trustees, and Ulman by letter, again suggesting a meeting to discuss the Congregation’s proposed project. (SAC ¶ 212.) The letter requested “that the Village of Pomona Board of Trustees exercise its authority under federal law to grant an exemption to a religious institution to allow for the construction of’ the rabbinical college. (Defs.’ Ex. S at 1; SAC ¶ 213.) On July 3, 2007, Mayor Sanderson responded to the Congregation by letter, stating that the Village “cannot grant your request to have the Board of Trustees exempt [the project] from the provisions of the Pomona Zoning Law” and that “the only remedy available for the [r]abbinical [c]ollege were [sic] legislative ones [sic].” (SAC ¶¶ 214-15.)
II. Discussion
A Standard of Review
1. Rule 12(b)(1)
“[A] federal court has subject-matter jurisdiction over a cause of action only when it ‘has authority to adjudicate the cause’ pressed in the complaint.” Singer v. Xipto, Inc.,
2. Rule 12(b)(6)
“On a Rule 12(b)(6) motion to dismiss a complaint, the court must accept a plaintiffs factual allegations as true and draw all reasonable inferences in [the plaintiffs] favor.” Gonzalez v. Caballero,
The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his [or her] ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
“A court presented with a motion to dismiss under both Fed.R.Civ.P. 12(b)(1) and 12(b)(6) must decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.” Homefront Org., Inc. v. Motz,
B. Justiciability
Defendants move to dismiss on the grounds that Plaintiffs lack standing to
1. Standing
The Court begins, as it must, with the question of Plaintiffs’ standing. See Pettus v. Morgenthau, 554 F.8d 293, 298 (2d Cir.2009) (“[Standing ... is intended to be a threshold issue at least tentatively decided at the outset of the litigation.”); Licensing by Paolo, Inc. v. Sinatra (In re Gucci),
Generally, “the ‘injury-in-fact’ requirement means that a plaintiff must have personally suffered an injury.” Huff,
As for causation, a plaintiff “satisfies] .the causation requirement if the complaint ‘averts] the existence of [an] intermediate link between the ... [challenged] regulations and the injury.’ ” Pac. Capital Bank,
Finally, the redressability requirement demands that there is a “ ‘non-speculative likelihood that the injury can be remedied by the requested relief.’ ” Coalition of Watershed Towns v. EPA,
a. The Congregation
The Congregation has shown that it has standing to challenge the ordinances
The Congregation also has met the other elements of Article III standing. The Congregation’s alleged injury is fairly traceable to Defendants, because the Congregation allegedly cannot build the rabbinical college or its accessory uses as a result of the challenged ordinances. See Pac. Capital Bank,
Further, the alleged injury is redressable through the requested relief, because invalidation of the challenged ordinances allegedly could allow the Congregation to build the rabbinical college and its accessory uses. Taking the allegations in the Second Amended Complaint as true, “the Subject Property is the only available parcel of land” that is both appropriately sized and appropriately situated in close proximity to the “religious infrastructure and population,” as required for a rabbinical college. (SAC ¶ 83.) Based on these allegations, there is a “non-speculative likelihood” that if the challenged ordinances were invalidated, the Congregation could build the rabbinical college on the property. See Watershed Towns,
b. The Individual Plaintiffs
The Individual Plaintiffs are trained Rabbis who seek to live and to teach and/or to study at the Congregation’s planned rabbinical college. (SAC ¶¶ 11-20.) Defendants contend that the Individual Plaintiffs cannot meet the injury-in-fact requirement because they are “yet-to-be admitted or enrolled students,” a yet-to-be hired Dean, and yet-to-be-hired lecturers who have “no basis to claim injury now,” before the school has been “approved or constructed-let alone opened its doors.” (Defs.’ Mem. 30.) Defendants’ argument is unavailing.
The Individual Plaintiffs assert that they have been prevented from studying, teaching, worshipping, and living at the rabbinical college by the challenged ordinances, which they allege discriminate against them based on their religion. (Pis.’ Mem. 23-24; SAC ¶¶ 156-159.) Contrary to Defendants’ argument that the Individual Plaintiffs are “yet-to-be admitted” or “yet-to-be hired,” the Individual Plaintiffs have submitted affidavits that, taken as true, demonstrate that each has been either offered a position at the rabbinical college or offered enrollment as a student at the rabbinical college once it opens.
Further, the Individual Plaintiffs’ alleged injury is both fairly traceable to Defendants and redressable by the Court. First, the Individual Plaintiffs’ inability to live and teach at the rabbinical college is caused by the challenged ordinances, which allegedly prevent the construction and operation of the rabbinical college and some of its accessory uses on the Subject Property. Second, taking the allegations in the Second Amended Complaint as true, there is at least a non-speculative likelihood that if the challenged ordinances were invalidated, the Congregation’s planned rabbinical college could be built, and the Individual Plaintiffs could study, work, and live on the Subject Property. Cf. Arlington Heights,
c. Kolel Belz
Plaintiff Kolel Belz is a religious corporation that serves more than 200 families of congregants and purports to “represent[ ] the interests of itself and the broader Orthodox community in actively seeking trained” rabbinical judges to “conduct the activities of rabbinical courts.” (SAC ¶¶ 34-35.) In support of its standing argument, Kolel Belz argues that it “will benefit from this litigation because it will have access to the services of rabbinical judges trained at the [rjabbinical [c]ollege.” (Pis.’ Mem. 24-25.) Defendants argue that Kolel Belz lacks standing to raise any of its claims on its own behalf or on behalf of the local Orthodox community. (Defs.’ Mem. 26-29.) For the following reasons, the Court agrees that Kolel Belz lacks standing to pursue this action.
Kolel Belz, “as an organization, is fully able to bring suit on its own behalf ‘for injuries it has sustained,’ ” Int’l Action Ctr. v. City of New York,
Nor has Kolel Belz provided the Court with any allegations from which the Court could conclude that members of the community cannot vindicate their own interests. To do so, Kolel Belz would need to establish that “some barrier or practical obstacle (e.g., third party is unidentifiable, lacks sufficient interest, or will suffer some sanction) prevents or deters the third party from asserting his or her own interest.” Benjamin v. Aroostook Med. Ctr., Inc.,
For these reasons, the Court finds that Plaintiff Kolel Belz lacks standing to bring this suit. Accordingly, its claims are dismissed without prejudice.
2. Ripeness
a. Facial Challenges
Plaintiffs have raised facial challenges to the legality of certain portions of the Village’s Zoning Code under the Equal Protection Clauses of both the Federal Constitution and the New York Constitution, as well as the Free Speech, Free Exercise, and Free Association Clauses of the First Amendment of the Federal Constitution and corollary protections in the New York Constitution, and under RLUIPA. Defendants summarily assert that Plaintiffs “facial challenge^] fail[] to meet the jurisdictional requirement[ ] of ripeness,” (Defs.’ Mem. 13), arguing that Plaintiffs should be required to participate “in the normal land use process,” (id.). Contrary to Defendants’ assertion, however, “ ‘facial’ challenges to regulations] are generally ripe the moment the challenged regulation or ordinance is passed.” Suitum v. Tahoe Reg’l Planning Agency,
Defendants further contend that Plaintiffs’ as-applied challenges to the Village’s zoning laws are not ripe for adjudication, because the Congregation failed “formally [to] present[ ][its] actual plans for the proposed [rjabbinical [c]ollege to the Village,” or to “ma[k]e any application for a special use permit, use variance, zoning amendment or zone change as required by the Village zoning laws.” (Defs.’ Mem. 12.) The Court agrees that Plaintiffs’ as-applied challenges under the Free Speech, Free Exercise, and Free Association Clauses of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the FHA, and RLUIPA, as well as Plaintiffs’ as-applied claims under New York state law, are unripe, and thus, the Court lacks subject matter jurisdiction over these claims.
“Ripeness is a doctrine rooted in both Article Ill’s case or controversy requirement and prudential limitations on the exercise of judicial authority.” Murphy v. New Milford Zoning Comm’n,
“Determining whether a case is ripe generally requires [courts] to ‘evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’ ” Murphy,
i. The Final Decision Requirement
“Building on the foregoing, the Supreme Court has developed specific ripeness requirements applicable to land use disputes.” Murphy,
Although this ripieness paradigm was originally developed by the Supreme Court in the context of a regulatory takings challenge, see Williamson,
The final decision requirement also applies to land use disputes arising under New York law. See Church of St. Paul & St. Andrew v. Barwick,
“A final decision exists when a development plan has been submitted, considered and rejected by the governmental entity with the power to implement zoning regulations.” S & R Dev. Estates, LLC v. Bass,
The Second Circuit has held that the final decision rule: (1) “aids in the development of a full record”; (2) ensures that a court “will ... know precisely how a regulation will be applied to a particular parcel”; (3) recognizes the possibility that, by granting a variance, the administrative body “might provide the relief the property owner seeks without requiring judicial entanglement in constitutional disputes”; and (4) “evinces the judiciary’s appreciation that land use disputes are uniquely matters of local concérn more aptly suited for local resolution.” Murphy,
In this case, there has been no final decision, as the Congregation has yet to submit a single formal application to the Village Board of Trustees for approval of the rabbinical college. This failure by Plaintiffs to file (or their decision not to file) any formal application for use of the Subject Property leaves Plaintiffs outside the boundaries of the final decision rule. See Guatay Christian Fellowship,
Plaintiffs suggest that, by adopting the challenged ordinances, Defendants have made a final decision to bar Plaintiffs from building the rabbinical college on the Subject Property. (Pis.’ Mem. 13-14.) Yet, Plaintiffs do not allege that Defendants have rejected any particular development plan that Plaintiffs have formally submitted to Defendants: Rather, Plaintiffs broadly charge that Defendants have been hostile to the idea of a rabbinical college ever since some information about the putative college leaked. Indeed, Plaintiffs assert that “Defendants’ conduct ... has been made in a total vacuum of any information about the plans for the [r]abbinical [c]ollege and without seeing any of the studies performed----” (SAC ¶ 185.) But, that void is the direct result of Plaintiffs’ decision not to make a formal application to the Village (complete with the necessary details about the use of the Subject Property). Instead of identifying a final decision by Defendants to reject a particular land development plan, Plaintiffs have cited only the zoning ordinances that they believe would bar them from building a rabbinical college — which ordinances they seek to invalidate, based on how they might be applied to the would-be college. Thus, it is Plaintiffs who are attempting “to address important and potentially complex constitutional and regulatory issues in a vacuum.” Kittay,
ii The Futility Exception
The Second Circuit has recognized a futility exception to the final decision requirement, cautioning that “the finality requirement [should not be] mechanically applied.” Murphy,
Plaintiffs contend that the futility exception is met here, because the Village officials “lack discretion to grant any administrative relief and have ‘dug in their heels’ against the Congregation.” (Pis.’ Mem. 16.) In particular, Plaintiffs claim that there is no way for them to obtain a land use permit to build a rabbinical college, because the re-written zoning laws bar any administrative relief, including zoning variances, special use permits, and administrative appeals. As such, Plaintiffs claim that the only way they can develop the Subject Property to construct a rabbinical college is through a legislative fix— for example, a text amendment to change the zoning laws.
As an initial matter, Plaintiffs’ position conflates the finality requirement with the exhaustion requirement. As the Supreme Court explained in Williamson:
The question whether administrative remedies must be exhausted is conceptually distinct, however, from the question whether an administrative action must be final before it is judicially renewable. While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.
Requiring one meaningful application ensures that local zoning authorities have at least one opportunity to consider how local regulations apply to a proposed use before the regulations are subject to judicial review. See Church v. City of Medina, No. 11-CV-0275,
Although [plaintiffs] opposed the rezoning of the subject properties between 1983 and 1985, they gave no indication at that time of how they might intend to develop the property if permitted to do so. They filed no meaningful applications for development of the property, for variances, or for any other form of relief before filing this federal complaint. To address this claim in this posture, federal courts would be required to guess what possible proposals [plaintiffs] might have filed with the City, and how the City might have responded to these imaginary applications.
S. Pac.,
Here, in the absence of a formal application, the particulars of the Congregation’s planned use remain abstract. For example, the Amended Complaint does not allege the size of the dormitories that Plaintiffs propose to build, and Plaintiffs have provided inconsistent representations on this point. (SAC ¶ 212 (alleging that Plaintiffs’ counsel “stated [in a letter to the Village’s Counsel] that [Plaintiffs would] seek a development for only 250 students”); Tr. of Oral Argument (“Tr.”) 63-64 (stating that the dormitories would house 250 students in the “first phase,” but that “there conceivably could be one-thousand units”).) Thus, the Court cannot know whether Plaintiffs may pursue development plans that could comport with some, even if not all, of the Village’s Zoning Code. See Executive 100, Inc. v. Martin County,
Plaintiffs contend that, notwithstanding their failure to submit a single application, rejection of their application is certain, because no Village official or entity has discretion to approve Plaintiffs’ proposed use of the Subject Property as a rabbinical college under the Village’s Zoning Code. (Pls.’ Mem. 17.) The Second Circuit has indeed noted that a plaintiff may be excused from pursuing all available administrative remedies if “a zoning agency lacks discretion to grant variances.” Murphy,
To be sure, courts have regularly found that the futility exception applies in instances where landowners could not, by law, obtain a variance under local zoning
However, just five years later, the Ninth Circuit confronted a challenge to a municipality’s general plan and water moratorium. See Kawaoka v. City of Arroyo Grande,
Furthermore, in the absence of even one meaningful application, the Court cannot conclude that the Village’s rejection of Plaintiffs’ application is virtually certain, as required to demonstrate futility. See Murphy,
Plaintiffs’ claims about the letters written by the Village attorney and Mayor Sanderson and the comments allegedly made by other Village officials, if true, are indeed troubling. But these individuals are not the only Village officials who would consider a formal application, if it were ever made. The fate of any formal proposal therefore remains an unanswered question. This conclusion finds support in the case law. For example, in Homefront, the court refused to excuse the plaintiffs failure to submit a single formal application based on the futility exception despite statements by the Mayor of the defendant Village that the “proposed project was ‘not happening in our town’ ” and that the defendants “would not permit plaintiffs to build anything on the [subject] property.”
Thus, the Court declines to speculate about the likelihood that the Village Board
Hi. Ripeness of'FHA Claims
Defendants do not appear specifically to challenge the ripeness of Plaintiffs’ claims under the FHA.
However, notwithstanding Plaintiffs’ view of LeBlanc-Stemberg, the lower courts within the Second Circuit have, since that decision, regularly held that the ripeness analysis derived from Williamson applies to as-applied FHA claims. See Jenkins v. Eaton, No. 08-CV-0713,
. Illustrative of these decisions is Woodfield Equities, L.L.C. v. Inc. Village of Patchogue,
The consensus view among the lower courts within the Second Circuit — that as-applied challenges under the FHA are not ripe unless the plaintiff has submitted at least one formal application for relief — is shared by courts outside our circuit. See, e.g., Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Scotch Plains,
Plaintiffs correctly note that a landowner asserting an as-applied FHA claim need not always “first pursue remedies under local zoning laws.” (Pls.’ Mem. 21.) Indeed, the Second Circuit has held that, by its terms, the FHA does not require a plaintiff to exhaust all local remedies before bringing an action in federal court. See Huntington,
However, as is true with Plaintiffs’ constitutional challenges to the zoning ordinances, the ripeness of Plaintiffs’ facial FHA challenges presents a different question. To the extent that Plaintiffs allege under the FHA that the Village adopted the challenged ordinances with a discriminatory purpose, those claims may proceed. See Jackson v. Okaloosa County,
Thus, Plaintiffs’ facial challenges under the FHA to the Village’s zoning ordinances are ripe for review.
C. Plaintiffs’Facial Challenges
Plaintiffs contend that the challenged ordinances facially violate the Equal Protection Clauses of both the Federal Consti
“A plaintiff making a facial claim faces an ‘uphill battle’ because ‘it is difficult to demonstrate that the mere enactment of a piece of legislation’ violates the plaintiffs constitutional rights.” Cranley v. Nat’l Life Ins. Co. of Vt.,
1. Relevance of Discriminatory Motive to Plaintiffs’ Facial Challenges
As a threshold matter, the Court considers Plaintiffs’ argument that the motive behind the enactment of the challenged ordinances is relevant to their facial challenges. Plaintiffs contend that in addition to examining the text of the challenged ordinances, the Court must also consider whether the ordinances were, “enacted with a discriminatory purpose ” to determine their facial validity. (Pis.’ Mem. 10 (emphasis in original).) In particular, Plaintiffs argue that the motivation behind the ordinances is relevant to their facial claims under the Equal Protection Clause, the Free Exercise Clause, and the Free Speech Clause. Defendants argue that the “subjective motivation” of those who enacted the challenged ordinances is irrelevant to the Court’s determination of the challenged ordinances’ facial validity.
Normally, courts treat “the actual intent or motive of the government decisionmakers [as] irrelevant to their inquiry.” Alan E. Brownstein, Illicit Legislative Motive in the Municipal Land Use Regulation Process, 57 U. Cin. L.Rev. 1, 1 (1988); see also Arlington Heights,
The difficulty of ascertaining legislative motivation is often cited as a reason why such inquiries normally are to be avoided. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
2. Equal Protection Claims
The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,
The Second Circuit has identified “three common methods” of “establish[ing] a violation of equal protection by intentional discrimination”: (1) identifying “a law that expressly classifies on the basis of race,” (2) identifying “a facially neutral law or policy that has been applied in an unlawfully discriminatory manner,” or (3) identifying “a facially neutral [law or] policy that has an adverse effect and that was motivated by discriminatory animus.” Id. (internal quotation marks omitted). Here, Plaintiffs cannot rely on the first method of proving discrimination, because the challenged ordinances are facially neutral with respect to religion (and race). Nor can Plaintiffs rely on the second method, because Plaintiffs’ as-applied challenges to the ordinances are not yet ripe for reasons already explained. Thus, to establish a claim for discrimination in violation of the Equal Protection Clause, Plaintiffs rely on the third method by claiming that the challenged ordinances, although facially neutral, “ha[ve] an adverse effect and ... [were] motivated by discriminatory animus.” Id. (internal quotation marks omitted); see also Washington v. Davis,
a. Discriminatory Purpose
Plaintiffs claim that the challenged ordinances were enacted with a discriminatory purpose. “Discriminatory purpose ‘implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.’ ” Hayden v. County of Nassau,
Here, Plaintiffs’ allegations are sufficient to allege discriminatory purpose. First, Plaintiffs pled that the timing of the enactment of one of the challenged ordinances demonstrates Defendants’ discriminatory animus. Indeed, Plaintiffs allege that one of the three challenged ordinances, Section 130-4 (defining educational institutions and dormitories), was enacted within months of the Congregation’s purchase of the Subject Property, (SAC ¶¶ 156-57). See Brady v. Town of Colchester,
Second, Plaintiffs’ allegations of racially charged public comments preceding the enactment of Sections 130-10 (limiting the size of dormitories pursuant to an educational use) and 126 (establishing wetland protections) suggests the existence of discriminatory motivation. For example, in response to racially charged public comments, the Village’s then-Mayor allegedly alluded to the discriminatory purpose behind the enactment of these ordinances by stating that:
We sitting at this table have limitations that are placed on us as to what we can say, and what we can’t say, because our attorney tells us what we can say and what we can’t say. I can’t say what I feel — I can’t — if I agree with you, I don’t agree with you, I don’t have that luxury of being able to say that here. All that I can say is that every member of this board works very, very hard to do what is best for this community. You have your issues. Don’t assume because no one has gotten up and said, wow, I agree with you, oh boy; don’t assume that because we didn’t do that[,] that we don’t agree.
(SAC ¶ 166.) And before the challenged ordinances were enacted, officials in the Village made numerous statements that raise an inference of discriminatory animus:
• Defendants Yagel and Louie “expressly warned a civic association to be careful not to allow discriminatory statements to slip out,” (id. ¶ 183);
• Defendant' Sanderson stated publicly that “[t]he single most important issue facing the village at this time is the as yet un-proposed, but leaked, [r]abbinieal [cjollege development,” that the Village should “maintain!] its cultural and religious diversity” and that “the [r]abbinical [cjollege could not only ‘change the village,’ but could change ‘the makeup of the village,’ ” (id. ¶¶ 179-80 (fourth alteration in original)); and
• Defendants Yagel, Louie, and Sanderson were elected to Village Office based on campaign promises to “fight this plan” and “stand up to this threat,” ostensibly referring to the Congregation’s plan to build the rabbinical college, (id. ¶ 177 (internal quotation marks omitted)).
At this stage in the litigation, these allegations are sufficient to establish Plaintiffs’ claim that the challenged ordinances were enacted with the purpose of discriminating against members of Orthodox and Hasidic Jewish communities. See LeBlanc-Sternberg,
b. Discriminatory Effect
In addition to plausibly alleging discriminatory intent, Plaintiffs must allege that the challenged ordinances have had an adverse effect to make out their Equal Protection claim. See Brown v. City of Oneonta,
Here, Plaintiffs’ core claim is that the challenged ordinances have had the foreseeable and adverse effect of prohibiting Plaintiffs from building a rabbinical college in the Village. (SAC ¶ 111.) For example, Plaintiffs allege that over the years, the Village has adopted a series of legal impediments to prevent “Jewish individuals and institutions from developing the [Sjubject [Pjroperty and other nearby properties, while permitting other development within the Village, including a large Hindu temple.” (Id. ¶ 120.) According to Plaintiffs, as their plans for the Subject Property evolved, the Village’s zoning ordinances also evolved to box out the possibility of a rabbinical college being built. For example, Plaintiffs allege that the Village adopted the dormitory ordinance (Section 130-4) precisely to “prevent Jewish rabbinical scholars, who generally are married with children, from obtaining housing in
Similarly, Plaintiffs allege that the zoning ordinance that requires educational institutions be “accredited by the New York State Education Department or similar recognized accrediting agency” has the intended effect of barring only a rabbinical college, because there is no “recognized accrediting agency” for such an institution. (Id. ¶ 225.) At the same time, this provision likely would not affect other educational institutions, which presumably are capable of receiving state accreditation. The result of this ordinance, according to Plaintiffs, is thus to bar only their efforts to build a rabbinical college. The same is true of the wetlands protection ordinance (Section 126), because, according to Plaintiffs, the exemptions in this provision have the effect of singling out the Plaintiffs’ property and preventing Plaintiffs from building the structures needed to support a rabbinical college. (Id. ¶¶ 169-171.)
While Defendants may dispute the assertion that Plaintiffs (or those in their subject class) have been adversely affected by the challenged zoning ordinances, and may otherwise argue that these restrictions serve compelling interests or are otherwise lawful, this is not the time to test those defenses. Bikur Cholim,
3. Free Exercise Claims
Plaintiffs argue that they have stated a claim for violation of their right to Free Exercise of religion, because they have alleged that the challenged ordinances were enacted with the purpose of discriminating against Plaintiffs’ religious exercise. The First Amendment to the Federal Constitution, applicable to the states through the Fourteenth Amendment, “prohibits the enactment of any law ‘prohibiting the free exercise’ of religion.” Bronx Household of Faith v. Cmty. Sch. Dist. No. 10,
It is not a violation of the Free Exercise Clause, however, to enforce a generally applicable rule, policy, or statute that incidentally burdens a religious practice, as long as the government can “demonstrate a rational basis for [the] enforcement” of the rule, policy, or statute, and the burden is only an incidental effect, rather than the object, of the law. Fifth Ave. Presbyterian Church v. City of New York,
“To determine the object of a law, [the Court] must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face.” Id. at 533,
Here, Plaintiffs have plausibly alleged that the challenged ordinances were enacted to “infringe upon or restrict practices because of their religious motivation.” Lukumi
Moreover, Plaintiffs allege that public comments preceding the enactment of the other two challenged ordinances, Sections 130-10 (limiting the size of dormitories pursuant to an educational use) and 126 (establishing rules for protections of wetlands), strongly suggest animosity toward the Orthodox and Hasidic Jewish sects of the Jewish religion. (SAC ¶ 166.) As discussed above, the then-Mayor’s response to these public comments tacitly recognized that discriminatory motives could be discerned in connection with enactment of the challenged ordinances. (Id.) Similarly, as noted above, Plaintiffs allege that members of the Village’s Board of Trustees, Defendants Yagel and Louie, “expressly warned a civic association to be careful not to allow discriminatory statements to slip out,” (id. ¶ 183), and the Village’s mayor, Defendant Sanderson, stated publicly before the enactment of these ordinances that “[t]he single most important issue facing the village at this time is the as yet unproposed, but leaked, [r]abbinical [c]ollege development,” that the Village should “maintain[ ] its cultural and religious diversity,” and that “the [r]abbinical [c]ollege could not only ‘change the village,’ but could change ‘the makeup of the village,’ ”
While it is of course debatable that the above-mentioned animosity to the rabbinical college stemmed from “legitimate concernís] ... for reasons quite apart from discrimination,” Lukumi,
Plaintiffs’ claim is fortified when the separate zoning ordinances are viewed together, rather than in isolation, as the Supreme Court has said is appropriate in this context. See id. at 539-40,
To be sure, these ordinances on their face do not distinguish between religious and secular facilities (let alone between Orthodox/Hasidic and non-Orthodox/Hasidic faeilities)-for example, both religious and secular educational institutions require state accreditation and are barred from having dormitories with separate kitchens. But, according to Plaintiffs, these other institutions are merely theoretical and consequently could not have been the real or even possible object of the ordinances. Thus, the only effect of these ordinances, and the only effect allegedly intended by Defendants, was to prevent Plaintiffs from building a rabbinical college. In particular, Plaintiffs claim that the Village adopted these ordinances to regulate characteristics unique to an Orthodox/Hasidic rabbinical college, in effect imposing a “religious gerrymander.” Lukumi,
The Court recognizes fully that Defendants dispute many of Plaintiffs’ factual assertions regarding the rationale for adopting these ordinances, and that they may tender evidence explaining the compelling (or rational) health, safety, and other public interest reasons for them. But these are fact-driven questions that will have to be addressed at another time. See Roman Catholic Diocese of Rockville Ctr.,
Jh Free Speech and Free Association Claims
Plaintiffs also claim that the challenged ordinances facially violate the Free Speech and Free Association Clauses of the First Amendment.
There are many layers to Plaintiffs’ Free Speech claim, very few of which were addressed by the Parties in the two pages they collectively included in their memoranda of law. For example, the Parties have devoted little to the critical questions of: (1) what “expressive conduct” Plaintiffs are engaging in, or might engage in, through the construction of a rabbinical college; (2) how the challenged ordinances regulate such expressive conduct; and (3) what standard of review should be applied to these regulations.
The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. Constitutionally protected speech includes, among other things, certain symbolic speech and expressive conduct. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,
The question of whether a regulation is content based is critical, because it informs the level of scrutiny the regulation should receive. Content-based restrictions are viewed as presumptively invalid and are subject to strict scrutiny. See United States v. Playboy Entm’t Grp., Inc.,
With these principles in mind, the Court turns to the question of whether Plaintiffs have substantiated their claim that the challenged ordinances facially violate their freedom of speech. The only issue addressed (and disputed) by the Parties is the extent to which Plaintiffs have sufficiently alleged that the challenged ordinances regulate protected speech.' Defendants argue that the only possible effect of the ordinances is to limit Plaintiffs’ construction of a rabbinical college, which Defendants assert is conduct that is not expressive. (Defs.’ Mem. 34.). In support of this position, Defendants cite two cases: San Jose Christian College v. City of Morgan Hill,
In San Jose Christian, the Ninth Circuit held that the zoning ordinance at issue in that case did “not at all prohibit the establishment of religiously-affiliated educational institutions.”
In Tenafly, plaintiffs were Orthodox Jewish residents who, consistent with religious convention, wanted to use eruvs to mark the outer boundaries of the home, which use would allow them to engage in certain activities on the Sabbath (e.g., pushing baby strollers).
In the end, the Court finds that Plaintiffs have plausibly (if barely) pled enough facts to establish that the rabbinical college would engage in and foster expressive conduct. In particular, Plaintiffs have alleged that they wish to construct and operate a rabbinical college to foster the expression of certain ideas among and between faculty members and students. As such, the communicative conduct will be more than just congregants’ worship-ping. See Kleindienst v. Mandel,
The Court recognizes that there is authority suggesting that zoning ordinances that restrict the locations of religious institutions do not necessarily regulate expressive conduct. See Merrimack Congregation of Jehovah’s Witnesses v. Town of Merrimack, No. 10-CV-581,
The Court also recognizes that there is authority suggesting that even if such zoning regulations could be viewed as regulating speech, they are content-neutral time, place, and manner restrictions that are subject to intermediate scrutiny. See Cornerstone Bible Church v. City of Hastings,
The First Amendment also protects the Freedom of Association. See
5. RLUIPA Claims
Plaintiffs further raise a facial challenge to Sections 130-4 (defining educational institutions and dormitories), 130-10 (limiting the size of dormitories pursuant to an educational use), and 126 (establishing wetlands protections) of the Village’s Code under RLUIPA.
“RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposéd burdens, consistent with [Supreme Court] precedents.”' Cutter v. Wilkinson,
“But in 1997, in City of Boerne v. Flores [,
RLUIPA provides certain protections for land use for religious exercise. See 42 U.S.C. § 2000ce. In particular, RLUIPA contains separate provisions (1) to protect religious persons, including religious assemblies or institutions, from land use regulations that substantially burden their free exercise of religion, see id. § 2000cc(a), and (2) to protect religious persons, including religious assemblies or institutions, from land use regulations that discriminate against them or exclude them on the basis of religion or religious denomination, see § -2000ee(b). Plaintiffs facially attack the challenged ordinances under both of these provisions. (Pis.’ Mem. 12.) Defendants argue that Plaintiffs’ facial challenges under RLUIPA should be dismissed as meritless. (Defs.’ Mem. 22.)
a. Substantial Burden
The Substantial Burden provision of RLUIPA
prohibits a governmental entity from applying a land use regulation “in a manner that imposes a substantial burden on the religious exercise of a person ... or institution, unless the government demonstrates that imposition of the burden ... is in furtherance of a compelling governmental interest; and ... [the burden imposed] is the least restrictive means of furthering that compelling governmental interest.”
Westchester Day Sch. v. Village of Mamaroneck (“Westchester I ”),
Plaintiffs posit that the challenged ordinances, because they have the intended effect of barring a rabbinical college, substantially burden their ability to engage in “religious study and prayer throughout the day and night, [and to live] in a communal facility that allows them to be fully immersed in their religious studies with their families, praying and learning groups, lecturers and fellow students — all contributing to the necessary religious environment.” (Pis.’ Mem. 29; SAC ¶¶ 60, 63, 68.) Defendants contend, in the first instance, that building a rabbinical college is not religious exercise under RLUIPA. (Defs.’ Mem. 36.) The Court is unpersuaded by Defendants’ claim, and concludes that Plaintiffs have sufficiently alleged that the rabbinical college and its accessory uses constitute “religious exercise” within the meaning of RLUIPA.
“The statute defines ‘religious exercise’ to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief,’ and provides further that ‘[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered ... religious exercise.’ ” Westchester I,
As a second line of attack on this cause of action, Defendants argue that the ordinances do not, on their face, impose a substantial burden on Plaintiffs’ exercise of religion. According to Defendants, a substantial burden requires “something more than an incidental effect on religious exer
RLUIPA does not itself define the phrase “substantial burden.” See Roman Catholic Bishop,
While RLUIPA does not exempt religious institutions from complying with facially neutral permit and variance applications procedures, it does protect such institutions from land use regulations that substantially affect their ability to use their property in the exercise of their religion. For example, courts have held that zoning ordinances, or zoning decisions, that significantly lessen the prospect of a religious institution’s being able to use the property to further its religious mission contravenes RLUIPA. See Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter,
Such burdens can come in many forms. For example, courts have held that zoning schemes which impose conditions on the use of the property, such as limitations on the size of the facilities to be used by the religious institution, can impose a substantial burden. See Roman Catholic Diocese,
Taking Plaintiffs’ allegations as true, the Court finds that Plaintiffs have plausibly made a case that Defendants’ actions impose a substantial burden on Plaintiffs’ religious exercise. First, while the challenged ordinances may be facially neutral, in the sense that they do not expressly single out the Subject Property or otherwise expressly ban the construction of a rabbinical college, for reasons described above in connection with Plaintiffs’ Free Exercise Clause claim, Plaintiffs have alleged that the combined effect (even a subtle one) of the challenged ordinances is to bar the construction of a rabbinical college, and only to do that. Indeed, based on the timing of the ordinances’ adoption and amendment, as well as the statements made by some of the Defendants regarding the rabbinical college, Plaintiffs have plausibly alleged that this was the purpose of these ordinances. The ordinances allegedly do not just restrict where a rabbinical college can be built, or the size and number of the structures that can make up the college, but in fact completely prevent Plaintiffs from building and running a rabbinical college at all in Pomona. If these allegations are true, then Plaintiffs have established a substantial burden. See Cottonwood,
Second, while it is true that Plaintiffs have not yet filed a variance or special use application to build a rabbinical college on the Subject Property, Plaintiffs have alleged (again, as described above) that the challenged ordinances do not allow for any special use certificates or variances. (SAC
b. Discrimination and Exclusion
Plaintiffs also raise a facial challenge to the Village’s zoning ordinances under each of the three subsections of the Discrimination and Exclusion provision of RLUIPA.
i. . Equal Terms
The Equal Terms provision of RLUIPA provides that “[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(l). This “statutory command ‘requires equal treatment of secular and religious assemblies and allows courts to determine whether a particular system of classifications adopted by a city subtly or covertly departs from requirements of neutrality and general applicability.’ ” Primera,
There are four elements of an Equal Terms violation: (1) the plaintiff must be a religious institution; (2) subject to a land use regulation; that (3) treats the religious institution on less than equal terms; with (4) a nonreligious institution. See Primera,
The Second Circuit has not yet identified the precise standard to analyze whether a plaintiff has adequately alleged an Equal Terms violation. See Third Church of Christ,
The approaches of [the] ... circuits to facial Equal Terms Clause challenges fall roughly into two camps. In one camp is the Eleventh Circuit, which treats all land use regulations that facially differentiate between religious and nonreligious institutions as violations of the Clause, but will nonetheless uphold such a regulation if it survives strictscrutiny review. The other camp includes the Third, Seventh, and Ninth Circuits. Those circuits hold that a violation of the Equal Terms Clause occurs only if a religious institution is treated less well than a similarly situated nonreligious comparator. The Third Circuit requires the comparator to be similarly situated as to the regulatory purpose. The Seventh and Ninth Circuits require a comparator that is similarly situated with respect to accepted zoning criteria.
Opulent Life,
But for the reasons provided in not dismissing Plaintiffs’ Equal Protection and Free Exercise claims, the Court concludes that Plaintiffs have pled facts sufficient to make out a “gerrymander” claim, which itself can also support an Equal Terms claim. See Primera,
ii. Nondiscrimination
Plaintiffs assert a facial challenge to the Village’s ordinances under RLUIPA’s Nondiscrimination provision, which pro
Very few courts have considered claims based on the Nondiscrimination provision of RLUIPA. However, based on the language of the two provisions and the case-law applying them, the elements of a Nondiscrimination claim differ little, if at all, from an Equal Terms claim. See Church of Scientology,
Hi Exclusions and Limits
Finally, Plaintiffs allege that the Village’s zoning ordinances on their face violate RLUIPA’s Exclusions and Limits provision by totally excluding a rabbinical college from the Village. This provision provides that “[n]o government shall impose or implement a land use regulation that ... (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.” 42 U.S.C. § 2000ec(b)(3). The purpose of this provision “is not to examine the restrictions placed on individual landowners, but to prevent municipalities from broadly limiting where religious entities can locate.” Adhi Parasakthi Charitable, Med., Educ., & Cultural Soc’y of N. Am. v. Township of West Pikeland,
The Court concludes that Plaintiffs have stated a claim based on their facial challenge under the Exclusions and Limits Provision. As noted, Plaintiffs have pled that the challenged ordinances prevent them-, as a matter of law, from building the rabbinical college (indeed, any rabbinical college) on the Subject Property or anywhere in Pomona. The Court recognizes Defendants’ point that Plaintiffs could seek to change the ordinances, via a text amendment, but this does not change the analysis. Plaintiffs have alleged facts plausibly establishing that any efforts to change the law will be time consuming and likely unsuccessful. And in any event, Plaintiffs have alleged that as now written, the challenged ordinances prevent Plaintiffs (or any Orthodox/Hasidic group) from building a viable rabbinical college in Pomona, and that this was the intended objective of Defendants. This is sufficient to make out a plausible Exclusions and Limits claim. See Rocky Mountain,
At oral argument, counsel for Defendants expressed concern that Plaintiffs were intending to build “Wake Forest University in Pomona.” (Tr. 5).
III. Conclusion
For the reasons discussed above, Defendants’ Motion is granted in part and denied in part. Plaintiff Kolel Betz is dismissed as a Plaintiff in this action without prejudice. The remaining Plaintiffs’ as-applied challenges under the Free Speech, Free Exercise, and Free Association Clauses of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and RLUIPA, as well as their as-applied claims under the New York Constitution and New York state law, are dismissed without prejudice as unripe. The Motion To Dismiss is denied as to the remaining claims. The Clerk of Court is respectfully directed to terminate the pending motion. (Dkt. No. 36.)
SO ORDERED.
Notes
. The challenged ordinances can be found in the Declaration accompanying Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion To Dismiss. They can also be found online at http://www.ecode360.com/ 12718511 and http://www.ecode360.com/ 12718574.
. Currently, the Subject Property contains "12-13 structures, including bungalows and other buildings used as an Orthodox Jewish summer camp.” (SAC ¶ 89.)
. In addition to these constitutional requirements, courts also apply "prudential principles” to determine whether a plaintiff has standing. Gladstone, Realtors v. Village of Bellwood,
. Defendants argue that the Congregation cannot meet the injury-in-fact requirement, because it has not submitted an application to the Village. (Defs.' Mem. 26.) However, there is authority that land use plaintiffs who have identified, and spent resources to develop, a specific project that is barred by local laws may, without more, still have standing to challenge those laws. See LeBlanc-Sternberg v. Fletcher,
. It is proper for the Court to consider these affidavits in deciding the instant Motion. See J.S. ex rel. N.S. v. Attica Cent. Schs.,
. " 'Under New York and federal law, an organization may sue as a representative of its members only if the members have standing to sue in their own right.’ ” Int’l Action Ctr., 522 F.Supp.2d at 694 (quoting Mid-Hudson,
. Given the general rule that facial challenges become ripe at the inception of the regulation or ordinance, see Suitum,
. Plaintiffs claim that the Second Circuit has "squarely decided the question of whether a pre-enforcement challenge to a facially neutral zoning ordinance under the First Amendment and the Fair Housing, Act is ripe.” (Pis.’ Mem. 13.) For this proposition, Plaintiffs cite the Second Circuit's decision in LeBlanc-Sternberg v. Fletcher,
. Courts have described the futility exception as being "narrow.” See Gilbert v. City of Cambridge,
. The process to obtain a text amendment in the Village appears to be the following: (1) The applicant files a petition for amendment describing the proposed changes with the Village Clerk — the Board of Trustees has discretion to decide whether to consider formally the proposed amendment; (2) if the proposed amendment is to be considered, the Board of Trustees must refer it to the appropriate Village entities and/or individuals for a review and report; (3) the Village Planning Board shall confer with the applicant and assist the applicant in revising its petition and resubmitting it to the Board of Trustees (and to the board, agency, or official to which it was referred by the Board of Trustees); (4) within 45 days of the referral or the resubmission, the Village Planning Board and the board, agency, or official to which the proposed amendment was referred shall report to the Board of Trustees regarding the advisability of the proposed amendment — failure to report within 45 days shall be construed as approval of the amendment; (5) the Village Attorney shall report to the Board of Trustees regarding the form of the amendment; and (6) the Board of Trustees shall give notice of a public • hearing and hold such public hearing Upon receipt of the reports and any revised amendment. See Vill. of Pomona, N.Y.Code §§ 130-35-130-41.
The process to obtain a special use permit appears to entail the following: (1) An applicant must submit a formal application describing, inter alia, the proposed use-the application will be considered by the Board of Trustees or the Zoning Board (depending on the proposed use); (2) the relevant board refers the application to the appropriate Village board, agency, or official for a review and report, due within 30 days of the referral; (3) within 62 days after the receipt of the completed application, a public hearing must
Defendants argue that the process of seeking a text amendment is akin to an administrative remedy that Plaintiffs could have, but have not, pursued. The Court need not resolve the question of whether seeking a text amendment is legislative as opposed -to an administrative act, because, in either case, Plaintiffs’ failure to submit one meaningful application thwarts their attempt to invoke the futility exception to the final decision rule.
. The Parties agree that the rabbinical college would not qualify for a special use permit if, as Plaintiffs allege, there exists no formal accreditation process for the rabbinical college, because the Village's Zoning Code allows special use permits to issue only to an accredited “educational institution,” see Vill. of Pomona, N.Y.Code § 130-4. (SAC ¶¶ 93, 95, 105-06.) Defendants have also accepted Plaintiffs' representation that the rabbinical college could not meet the Village’s criteria for granting a use variance, because Plaintiffs cannot show at least three of the six mandatory requirements for granting a variance, in particular (a) that “the property in question cannot yield a reasonable return if used only for a purpose allowed in that district!,] (b) [t]hat the plight of the owner is due to unique circumstances affecting the property which is the subject of the application and not to general conditions in the neighborhood!,]” and “(e) [t]hat the unnecessary hardship claimed as a ground for the variance has not been created by the owner.” (Pls.’ Mem. 18 n. 30 (quoting Vill. of Pomona, N.Y.Code § 130-28(D)(1)).) See United States v. Airmont, No. 05-CV-5520, slip op. at 8 n. 3 (S.D.N.Y. Nov. 12, 2008) (noting that a property owner’s failure to apply for a variance after its formal application was rejected was excused as futile where the property owner "would almost certainly be unable to establish the factors that it would be required to show to obtain a use variance”); cf. Bikur Cholim,
. Other courts have reached similar conclusions-i.e., that a land owner may claim futility if he or she has submitted a formal application to municipal officials, and if the applicable zoning laws bar any variances or other administrative remedies. See, e.g., Herrington,
. Plaintiffs' allegations about the cool reaction to their informal overtures to Village officials about the rabbinical college do not alter the analysis. See Loesel,
. Three theories of discrimination are available to a plaintiff alleging a violation of the FHA or Title II of the Americans with Disability Act ("ADA”): (1) intentional discrimination; (2) disparate impact; and (3) refusal to make a reasonable accommodation. See Tsombanidis v. W. Haven Fire Dep’t,
. In support of this proposition, the LeBlanc-Stemberg panel cited the Eighth Circuit’s decision in Park View Heights Corp. v. City of Black Jack,
To the extent Plaintiffs might suggest that Park View Heights stands for the proposition that a land use plaintiff can show that its FHA claims are ripe even without formalizing the land use development plan, they would be overreaching. First, Park View Heights was decided well before Williamson County, which has been interpreted to apply to a wide variety of land use claims, including the FHA. Indeed, the Eighth Circuit, notwithstanding its own holding in Park View Heights, has held that a plaintiff bringing a reasonable accommodation claim under the FHA must permit the municipality an opportunity to consider a formal application. See Oxford House-C v. City of St. Louis,
. The Second Circuit affirmed the denial of the preliminary injunction. See
. Moreover, because Defendants have not challenged Plaintiffs’ FHA claims as failing to state a claim under Rule 12(b)(6), those claims may proceed.
. Defendants contend that the above-mentioned principles, while applicable in the context of as-applied challenges, do not apply in the context of facial challenges. Specifically, Defendants argue that examining the actual motive behind the ordinances’ enactment is at odds with the standard by which facial challenges are judged, namely whether the plaintiff has "establish[ed] that no set of circumstances exists under which the [statute] would be valid.” Diaz v. Paterson,
Under the Salemo standard, Defendants argue, regardless of the actual bases for the
Nonetheless, these cases are distinguishable from the instant case, because none involved allegations of discriminatory animus grounded in race or religion. See Giusto,
. Because the equal protection provisions of the New York Constitution are interpreted consistently with the corollary provisions in the Federal Constitution, see People v. Kern,
. The free exercise provision of the New York Constitution, though not identical to the Free Exercise Clause of the Federal Constitution, likewise guarantees the right to free exercise of religion: "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind...." N.Y. Const. Art. I, § 3. The New York Court of Appeals has not decided whether the New York constitutional free exercise protection is to be interpreted coextensively with the Federal Free Exercise Clause. See New Creation Fellowship of Buffalo v. Town of Cheektowaga, No. 99-CV-0460,
However, the New York Court of Appeals has not adopted the rule of the United States Supreme Court (in Employment Division v. Smith), that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” 494 U.S.
. The corollary provisions to the First Amendment’s Free Speech and Free Association Clauses in the New York Constitution are interpreted consistently with the Federal Constitution. See Colandrea v. Town of Orangetown,
. With respect to their Free Speech claim, Plaintiffs assert that Defendants' actions have excluded Plaintiffs’ protected expressive activity "completely from the Village's jurisdiction,” that Defendants have treated religious expressive activity on less than equal terms with nonreligious expressive activity, that Defendants have regulated expression "on the basis of the character of the speaker,” and
With respect to their Free Association claim, Plaintiffs allege that Defendants have intruded "upon- the Plaintiffs' right to marriage, childbirth, the raising and education of children,” and that Defendants have intruded "upon the Plaintiffs' right to associate for purposes of protected expressive activity.” (Id. ¶ 257.)
. Strict scrutiny of content-based restrictions derives from the concern "that if the government were able 'to impose content-based burdens on speech,' it could ‘effectively drive certain ideas or viewpoints from the marketplace.’ " Hobbs v. County of Westchester,
. However, the Third Circuit held that the plaintiffs had established that the selective enforcement of the ordinance violated the Free Exercise Clause.
. In their opposition to Defendants’ Motion, Plaintiffs also contend that they have raised a "facial overbreadth challenge” to the challenged ordinances. (Pis.’Mem. 11.) “Under the First Amendment doctrine of overbreadth, a statute is invalid when it brings within its scope — and thus threatens to chill — conduct protected by the First Amendment.” United States v. Sattar,
Plaintiffs did not include any overbreadth claim in their Second Amended Complaint. Nor did they include any allegations that would support such a claim. For example, Plaintiffs have not made any specific allegations about the application of the challenged ordinances to protected activity that is beyond the scope of the regulation of the Subject Property. Indeed, rather than "chilling” Plaintiffs’ expressive conduct, the challenged ordinances allegedly prohibit such activity directly, by barring Plaintiffs from constructing a rabbinical college at all. Therefore, Defendants’ Motion is granted, without prejudice to Plaintiffs to amend, as to any overbreadth claim Plaintiffs might be deemed to have included in their Second Amended Complaint. See Calvary Christian Ctr. v. City of Fredericksburg,
. Other circuit courts have adopted a similar definition. See Midrash Sephardi, Inc. v. Town of Surfside,
. It again bears repeating that the Court is not finding that Defendants have violated the Substantial Burden component of RLUIPA, merely that Plaintiffs have adequately pled this claim. Of course; it remains to be seen if Plaintiffs will be able to substantiate this cause of action. See Chabad Lubavitch of Litchfield Cnty., Inc. v. Borough of Litchfield,
. The one exception is the precise application of the "similarly situated" requirement found in Equal Protection jurisprudence. See Third Church of Christ, Scientist, of N.Y.C. v. City of New York,
. A plaintiff bringing an Equal Terms claim need not establish that the challenged land use regulation imposed a substantial burden. See Centro Familiar Cristiano Buenas Nuevas v. City of Yuma,
. It bears noting that the Fifth Circuit does not buy the Second Circuit’s professed agnosticism. In Elijah Group, Inc. v. City of Leon Valley, the Fifth Circuit commented that while the Second Circuit, in Third Church, “attempted to avoid choosing among the other ... circuits’ tests, it concluded that the hotel was a valid comparator to the church because 'the Church’s and the hotels’ catering activities [are] similarly situated with regard to their legality under [the City's] law.' ’’
This Court is not as adept at reading between the lines as others, but defers to our Circuit when it states that is not adopting (or rejecting) any other court’s standard or test. And, in any event, the difference in the approaches of the various circuits is not dispositive here, as discussed below.
. Wake Forest University has just under 5,000 undergraduate students and a campus size of approximately 340 acres. See Wake Forest University, http://en.wikipedia-org^ wiki/W akeForest-University.