Westchester Day School, Plaintiff-Appellee, v. Village of Mamaroneck, The Board of Appeals of the Village of Mamaroneck, Mauro Gabriele, In his official capacity as member of the Board of Appeals of the Village of Mamaroneck, George Mgrditchian, In his official capacity as member of the Board of Appeals of the Village of Mamaroneck, Peter Jackson, In his official capacity as member of the Board of Appeals of the Village of Mamaroneck, Barry Weprin, In his official capacity as member of the Board of Appeals of the Village of Mamaroneck, Clark Neuringer, In his official capacity as member of the Board of Appeals of the Village of Mamaroneck and Antonio Vozza, In his official capacity as a former member of the Board of Appeals of the Village of Mamaroneck, Defendants-Appellants, United States of America, Intervenor-Defendant.
Docket No. 06-1464-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Argued December 1, 2006 Decided October 17, 2007
CARDAMONE, and RAGGI, Circuit Judges, and BERMAN, District Judge*.
August Term, 2006
Affirmed.
JOEL C. HAIMS, Morrison & Foerster LLP, New York, New York (Jack C. Auspitz, Morrison & Foerster LLP, New York, New York; Stanley D. Bernstein, Berstein Liebhard & Lifshitz, LLP, New York, New York, of counsel), for Plaintiff-Appellee.
KEVIN J. PLUNKETT, White Plains, New York (Robert Hermann, Darius P. Chafizadeh, Thacher Proffitt & Wood LLP, White Plains, New York; Joseph C. Messina, Lisa M. Fantino, Law Office of Joseph C. Messina, Mamaroneck, New York, of counsel), for Defendants-Appellants.
SARAH E. LIGHT, Assistant United States Attorney, New York, New York (Michael J. Garcia, United States Attorney, Sara L. Shudofsky, Assistant United States Attorney, Southern District of New York, New York, New York; Wan J. Kim, Assistant Attorney General, David K. Flynn, Eric W. Treene, Sarah E. Harrington, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., of counsel), for Intervenor-Defendant and Amicus Curiae the United States of America.
Derek L. Gaubatz, Washington, D.C. (Anthony R. Picarello, Jr., Lori E. Halstead, The Becket Fund for Religious Liberty, Washington, D.C., of counsel), filed a brief on behalf of the Becket Fund for Religious Liberty, the Association of Christian Schools International, and the Council for Christian Colleges and Universities as Amici Curiae.
The appeal before us is from a judgment entered March 3, 2006 in the United States District Court for the Southern District of New York (Conner, J.) that ordered the defendant Village of Mamaroneck to issue a permit to plaintiff Westchester Day School to proceed with the expansion of its facilities. For nearly 60 years Westchester Day School (plaintiff, WDS, day school, or school) has been operating an Orthodox Jewish co-educational day school with classes from pre-school to eighth grade. Believing it needed to expand, the school submitted construction plans to the Village of Mamaroneck and an application for the required special permit. When the village zoning board turned the application down, the present litigation ensued.
In the district court the school argued that the zoning board in denying its application for a permit violated the Religious Land Use and Institutionalized Persons Act (RLUIPA or Act),
BACKGROUND
A. Westchester Day School‘s Property
Westchester Day School is located in the Orienta Point neighborhood of the Village of Mamaroneck, Westchester County,
The school‘s buildings are far from typical. The original structures were built in the late nineteenth century, one as a summer home and another as a stable. The day school, which opened in 1948, renovated the summer home and the stable to create classrooms. The school constructed Wolfson Hall in the 1960s and in 1979 Westchester Hebrew High School, a separate entity from WDS, built a two-story high school building on the property. Thus, currently there are four principal buildings on the property: the summer home (Estate House or Castle), the stable (Carriage House), Wolfson Hall, and the high school building.
The Mamaroneck Village Code permits private schools to operate in “R-20 Districts” if the Zoning Board of Appeals of the Village of Mamaroneck (ZBA or zoning board) grants them a special permit. The property is in an R-20 district and WDS operates subject to obtaining such a permit which must be renewed every three years. Most recently the day school‘s permit was unanimously renewed on November 2, 2000, before the dispute giving rise to this litigation began. Several other schools are located in the vicinity of Orienta Point, including the Liberty Montessori School and Mamaroneck High School. Numerous large properties border the school property, including the Orienta
B. Westchester Day School‘s Aims
As a Jewish private school, Westchester Day School provides its students with a dual curriculum in Judaiс and general studies. Even general studies classes are taught so that religious and Judaic concepts are reinforced. In the nursery and kindergarten classes no distinction exists between Judaic and general studies; the dual curriculum is wholly integrated. In grades first through eighth, students spend roughly half their day on general subjects such as mathematics and social studies and half on Judaic studies that include the Bible, the Talmud, and Jewish history.
In an effort to provide the kind of synthesis between the Judaic and general studies for which the school aims, the curriculum of virtually all secular studies classes is permeated with religious aspects, and the general studies faculty actively collaborates with the Judaic studies faculty in arranging such a Jewish-themed curriculum. For example, the General Studies Curriculum Guide describes how social studies is taught in grades 6, 7, and 8, explaining that WDS tries “to develop an understanding of humanistic, philosophical thоught, the nature of cause and effect in history, and the application of ethical Judaic principles to history and daily life” (emphasis added). The Guide further notes that “[s]tudying the history of Eretz Yisrael [the land of Israel] has become an increasingly prominent
The school‘s physical education teachers confer daily with the administration to ensure that during physical education classes Jewish values are being inculcated in the students. This kind of integration of Jewish and general culture is made possible when a school actively and consciously designs integrated curricular and extracurricular activities on behalf of its student body. See Jack Bieler, Integration of Judaic and General Studies in the Modern Orthodox Day School, 54:4 Jewish Education 15 (1986), available at http://www.lookstein.org/integration/bieler.htm. Thus, the school strives to have every classroom used at times for religious purposes, whether or not the class is officially labeled Judaic. A Jewish day school like WDS exists, at least in part, because Orthodox Jews believe it is the parents’ duty to teach the Torah to their children. Since most Orthodox parents lack the time to fulfill this obligation fully, they seek out a school like WDS.
C. The Expansion Project
By 1998 WDS believed its current facilities inadequate to satisfy the school‘s needs. The district court‘s extensive findings reveal the day school‘s existing facilities are deficient and that its effectiveness in providing the education
In October 2001 the day school submitted to the zoning board an application for modification of its special permit to enable it to proceed with this $12 million expansion project. On February 7, 2002 the ZBA voted unanimously to issue a “negative declaration,” which constituted a finding that the project would have no significant adverse environmental impact and thus that consideration of the project could proceed. After the issuance of the negative declaration, a small but vocal group in the Mamaroneck community opposed the project. As a result of this public opposition, on August 1, 2002 the ZBA voted 3-2 to rescind the negative declaration. The effect of the rescission was to
D. Prior Legal Proceedings
Instead, the school commenced the instant litigation on August 7, 2002 contending the rescission of the negative declaration violated RLUIPA and was void under state law. The suit named as defendants the Village of Mamaroneck, its ZBA, and the members of the zoning board in their official capacities (collectively, the Village or defendant).
On December 4, 2002 the district court grantеd WDS‘s motion for partial summary judgment and held that the negative declaration had not been properly rescinded, and therefore remained in full force and effect. See Westchester Day Sch. v. Vill. of Mamaroneck, 236 F. Supp. 2d 349 (S.D.N.Y. 2002). The Village did not appeal this ruling. Instead, the ZBA proceeded to conduct additional public hearings to consider the merits of the application. The ZBA had the opportunity to approve the application subject to conditions intended to mitigate adverse effects on public health, safety, and welfare that might arise from the project. Rather, on May 13, 2003 the ZBA voted 3-2 to deny WDS‘s application in its entirety.
The stated reasons for the rejection included the effect the project would have on traffic and concerns with respect to parking and the intensity of use. Many of these grounds were conceived after the ZBA closed its hearing process, giving the school no opportunity to respond. The district court found the
On May 29, 2003 the school filed an amended complaint challenging the denial of its application. It asserted claims under RLUIPA,
A seven-day bench trial began on November 14, 2005 and resulted in the March 2006 judgment. The district court ordered the Village to issue WDS‘s special permit immediately, but reserved decision on damages and attorneys’ fees pending appellate review. See Westchester Day Sch. v. Vill. of Mamaroneck, 417 F. Supp. 2d 477 (S.D.N.Y. 2006). From this ruling the Village appeals.1
DISCUSSION
I Standard of Review
We review the district court‘s findings of fact for clear error and its conclusions of law de novo. See Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 323-24 (2d Cir. 2006).
II Application of RLUIPA
RLUIPA prohibits the government from imposing or implementing a land use regulation in a manner that
imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.
A. Religious Exercise
Religious exercise under RLUIPA is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”
Commenting at an earlier stage in this litigation on how to apply this standard, we expressed doubt as to whether RLUIPA immunized all conceivable improvements proposed by religious schools. That is to say, to get immunity from land use
On remand, the district court conducted the proper inquiry. It made careful factual findings that each room the school planned to build would be used at least in part for religious education and practice, finding that Gordon Hall and the other facilities renovated as part of the project, in whole and in all of their constituent parts, would be used for “religious education and practice.” In light of these findings, amply supported in the record, the expansion project is a “building [and] conversion of real property for the purpose of religious exercise” and thus is religious exercise under
Hence, we need not now demarcate the exact line at which a school expansion project comes to implicate RLUIPA. That line
B. Substantial Burden
Since substantial burden is a term of art in the Supreme Court‘s free exercise jurisprudence, we assume that Congress, by using it, planned to incorporate the cluster of ideas associated with the Court‘s use of it. See, e.g., Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1226 (11th Cir. 2004), cert. denied, 543 U.S. 1146 (2005) (“The Supreme Court‘s definition of ‘substantial burden’ within its free exercise cases is instructive in determining what Congress understood ‘substantial burden’ to mean in RLUIPA.“). But see San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) (applying dictionary meanings to define substantial burden as “something that is oppressive” and “considerable in quantity“). Further, RLUIPA‘s legislative history indicates that Congress intended the term substantial burden to be interpreted “by reference to Supreme Court jurisprudence.” 146 Cong. Rec. S7774, S7776 (2000).
Supreme Court precedents teach that a substantial burden on religious exercise exists when an individual is required to “choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion . . . on the other hand.” Sherbert v. Verner, 374 U.S. 398, 404 (1963). A number of courts use this
But in the context of land use, a religious institution is not ordinarily faced with the same dilemma of choosing between religious precepts and government benefits. When a municiрality denies a religious institution the right to expand its facilities, it is more difficult to speak of substantial pressure to change religious behavior, because in light of the denial the renovation simply cannot proceed. Accordingly, when there has been a denial of a religious institution‘s building application, courts appropriately speak of government action that directly coerces the religious institution to change its behavior, rather
Yet, when the denial of a religious institution‘s application to build is not absolute, such would not necessarily place substantial pressure on the institution to alter its behavior, since it could just as easily file a second application that remedies the problems in the first. As a consequence, as we said when this case was earlier before us, “rejection of a submitted plan, while leaving open the possibility of approval of a resubmission with modifications designed to address the cited problems, is less likely to constitute a ‘substantial burden’ than definitive rejection of the same plan, ruling out the possibility of approval of a modified proposal.” Westchester Day Sch., 386 F.3d at 188. Of course, a conditional denial may represent a substantial burden if the condition itself is a burden on free exercise, the required modifications are economically unfeasible, or where a zoning board‘s stated willingness to consider a modified plan is disingenuous. Id. at 188 n.3. However, in most cases, whether the denial of the application was absolute is important; if there is a reasonable
We recognize further that where the denial of an institution‘s application to build will have minimal impact on the institution‘s religious exercise, it does not constitute a substantial burden, even when the denial is definitive. There must exist a close nexus between the coerced or impeded conduct and the institution‘s religious exercise for such conduct to be a substantial burden on that religious exercise. Imagine, for example, a situation where a sсhool could easily rearrange existing classrooms to meet its religious needs in the face of a rejected application to renovate. In such case, the denial would not substantially threaten the institution‘s religious exercise, and there would be no substantial burden, even though the school was refused the opportunity to expand its facilities.
Note, however, that a burden need not be found insuperable to be held substantial. See Saints Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 901 (7th Cir. 2005). When the school has no ready alternatives, or where the alternatives require substantial “delay, uncertainty, and expense,” a complete denial of the school‘s application might be indicative of a substantial burden. See id.
We are, of course, mindful that the Supreme Court‘s free exercise jurisprudence signals caution in using effect alone to
This reasoning helps to explain why courts confronting free exercise challenges to zoning restrictions rarely find the substantial burden test satisfied even when the resulting effect is to completely prohibit a religious congregation from building a church on its own land. See Christian Gospel Church, Inc. v. City and County of S.F., 896 F.2d 1221, 1224 (9th Cir. 1990); Messiah Baptist Church v. County of Jefferson, 859 F.2d 820, 824-25 (10th Cir. 1988); Grosz v. City of Miami Beach, 721 F.2d 729, 739-40 (11th Cir. 1983); Lakewood, Ohio Congregation of Jehovah‘s Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 304 (6th Cir. 1983); cf. Islamic Ctr. of Miss., Inc. v. City of Starkville, 840 F.2d 293, 302-03 (5th Cir. 1988) (finding substantial burden where city intentionally discriminated against Muslims and ordinance “leaves no practical alternatives for establishing a mosque in the city limits“).
A number of our sister circuits have applied this same reasoning in construing RLUIPA‘s substantial burden requirement. For example, the Seventh Circuit has held that land use conditions do not constitute a substantial burden under RLUIPA where they are “neutral and traceable to municipal land planning goals” and where there is no evidence that government actions were taken “because [plaintiff] is a religious institution.” Vision Church v. Vill. of Long Grove, 468 F.3d 975, 998-99 (7th Cir. 2006). Similarly, the Ninth Circuit has held that no substantial burden was imposed, even where an ordinance “rendered [plaintiff] unable to provide education and/or worship” on its property, because the plaintiff was not “precluded from using other sites within the city” and because “there [is no] evidence that the City would not impose the same requirements on any other entity.” San Jose Christian Coll., 360 F.3d at 1035. The Eleventh Circuit has also ruled that “reasonable ‘run of the mill’ zoning considerations do not constitute substantial burdens.” Midrash Sephardi, 366 F.3d at 1227-28 & n.11.
The same reasoning that precludes a religious organization from demonstrating substantial burden in the neutral application
Accordingly, we deem it relevant to the evaluation of WDS‘s particular substantial burden claim that the district court expressly found that the zoning board‘s denial of the school‘s application was “arbitrary and capricious under New York law because the purported justifications set forth in the Resolution
As the New York Court of Appeals has made plain, a zoning board decision based on grounds “unrelated to the public‘s health, safety or welfare” is “beyond the scope of the municipality‘s police power, and, thus, impermissible.” Cornell Univ. v. Bagnardi, 68 N.Y.2d 583, 597 (1986). Even when a board considers permissible factors, the law demands that its analysis be supported by substantial evidence. Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 1002 (1997) (mem.). Moreover, under New York law, a municipality may not demand that a religious institution show that ”no ill effects will result from the proposed use in order to receive a special permit,” because such a requirement “fails to recognize that educational and religious uses ordinarily have inherent beneficial effects that must be weighed against their potential for harming the community.” Bagnardi, 68 N.Y.2d at 597.
The district court reasonаbly concluded that the ZBA failed to comply with these legal mandates in several respects. For example, the zoning board denied WDS‘s application based, in part, on an accusation that the school made “a willful attempt” to mislead the zoning board. In fact, the accusation was
While the arbitrary and unlawful nature of the ZBA denial of WDS‘s application supports WDS‘s claim that it has sustained a substantial burden, two other factors drawn from our earlier discussion must be considered in reaching such a burden determination: (1) whether there are quick, reliable, and
Here, the school could not have met its needs simply by reallocating space within its existing buildings. The architectural firm it hired determined that certain essential facilities would have to be incorporated into a new building, because not enough space remained in the existing buildings to accommodate the school‘s expanding needs. Further, experts hired by WDS determined that the planned location for Gordon Hall was the only site that would accommodate the new building. The answer to the first factor is there were not only no quick, reliable, or economically feasible alternatives, there were no alternatives at all.
In examining the second factor -- whether the Village‘s denial of the school‘s application was conditional or absolute -- we look at several matters: (a) whether the ZBA classified the denial as complete, (b) whether any required modification would
For any of the following reasons, we believe the denial of WDS‘s application was absolute. First, we observe that the ZBA could have approved the application subject to conditions intended to mitigate adverse effects on public health, safety, and welfare. Yet the ZBA chose instead to deny the application in its entirety. It is evident that in the eyes of the ZBA‘s members, the denial was final since all of them discarded their notes after voting on the application. Second, were WDS to prepare a modified proposal, it would have to begin the application process anew. This would have imposed so great an economic burden as to make the option unworkable. Third, the district court determined that ZBA members were not credible when they testified they would give reasonable consideration to another application by WDS. When the board‘s expressed willingness to cоnsider a modified proposal is insincere, we do not require an institution to file a modified proposal before determining that its religious exercise has been substantially burdened.
Consequently, we are persuaded that WDS has satisfied its burden in proving that there was no viable alternative to achieve its objectives, and we conclude that WDS‘s religious exercise was
C. Least Restrictive Means to Further a Compelling State Interest
Under RLUIPA, once a religious institution has demonstrated that its religious exercise has been substantially burdened, the burden of proof shifts to the municipality to prove it acted in furtherance of a compelling governmental interest and that its action is the least restrictive means of furthering that interest.
The district court‘s findings reveal the ZBA‘s stated reasons for denying the application were not substantiated by
Further, even were we to determine that there was a compelling state interest involved, the Village did not use the least restrictive means available to achieve that interest. The ZBA had the opportunity to approve the application subject to conditions, but refused to consider doing so.
III Constitutionality of RLUIPA
Given our conclusion that the ZBA violated RLUIPA by denying WDS‘s application, the question remains whether RLUIPA was constitutionally applied. The Village challenges RLUIPA on the grounds that it exceeds Congress’ Fourteenth Amendment (§ 5) and Commerce Clause powers and that the Act is unconstitutional under the Tenth Amendment and the Establishment Clause.
RLUIPA states that it only applies when (1) “the substantial burden is imposed in a program or activity that receives Federal financial assistancе . . . ,” (2) “the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes . . . ,” or (3) “the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the
By limiting RLUIPA‘s scope to cases that present one of these jurisdictional nexuses, Congress alternatively grounded RLUIPA, depending on the facts of a particular case, in the Spending Clause, the Commerce Clause, and § 5 of the Fourteenth Amendment. There is no claim here that the ZBA receives federal financial assistance, but WDS does assert both that the substantial burden on its religious exercise affects intеrstate commerce and that it is imposed through formal procedures that permit the government to make individualized assessments of the proposed uses for the property involved. Thus, we must examine whether RLUIPA is constitutionally applied under Congress’ Commerce Clause power or whether it is constitutionally applied under Congress’ power to create causes of action vindicating Fourteenth Amendment rights.
A. Congress’ Power Under the Commerce Clause
The Constitution grants Congress the power “[t]o regulate Commerce . . . among the several States.”
As the Supreme Court has made plain, the satisfaction of such a jurisdictional element -- common in both civil and
In this case, the district court found thе jurisdictional element satisfied by evidence that the construction of Gordon Hall, a 44,000 square-foot building with an estimated cost of $9 million, will affect interstate commerce. We identify no error in this conclusion. As we have recognized, the evidence
In light of our determination that RLUIPA‘s application in the present case is constitutional under the Commerce Clause, there is no need to consider or decide whether its application could be grounded alternatively in § 5 of the Fourteenth Amendment.
B. Tenth Amendment
The Tenth Amendment provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people.” As the Supreme Court has explained, “[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.” New York v. United States, 505 U.S. 144, 156 (1992). The power to regulate interstate commerce was delegated to Congress in the Constitution. Nonetheless, in New York, the Court said that even in situations where Congress has the power to pass laws requiring or prohibiting certain acts, it has no power “directly to compel the States to require or prohibit those acts.” Id. at 166. We do not believe RLUIPA directly compels states to require or
C. Establishment Clause
In determining whether a particular law violates the Establishment Clause, which provides in the First Amendment that “Congress shall make no law respecting an establishment of religion,”
Similarly, the principal or primary effect of RLUIPA‘s land use provisions neither advances nor inhibits religion. As the Supreme Court has explained, a law produces forbidden effects under Lemon if “the government itself has advanced religion
Finally, RLUIPA‘s land use provisions do not foster an excessive government entanglement with religion. Although the Village contends that RLUIPA fails every part of the Lemon test, it makes no argument that the land use provisions foster intolerable levels of interaction between church and state or the continuing involvement of one in the affairs of the other. Agostini v. Felton, 521 U.S. 203, 232-33 (1997); Walz v. Tax Comm‘n of N.Y., 397 U.S. 664, 674-75 (1970). Further, entanglement becomes excessive only when it advances or inhibits religion. Agostini, 521 U.S. at 233 (treating entanglement prong as aspect of effects prong under Lemon test); Skoros v. City of N.Y., 437 F.3d 1, 36 (2d Cir. 2006). RLUIPA cannot be said to advance religion simply by requiring that states not discriminate against or among religious institutions. See Midrash Sephardi, 366 F.3d at 1241.
Accordingly, we find that RLUIPA‘s land use provisions do not violate the Establishment Clause.
IV Jury Waiver
We turn finally to the question of whether defendant waived its right to trial by jury. Under
The Village declares its amended answer -- filed a year and a half after commencement of the suit -- raised new issues, and that it therefore had a right to demand a new trial on those issues. But its amended answer was identical to its initial answer except that it added a number of affirmative defenses not asserted earlier. The new affirmative defenses alleged that defendant‘s denial of WDS‘s application was not a complete denial, that it did not substantially burden WDS‘s free exercise of religion, that the denial was based on compelling state interests, and that RLUIPA if applied to WDS‘s activities is unconstitutional. By denying plaintiff‘s contrary allegations,
We are left with the Village‘s affirmative defense that RLUIPA if applied to WDS‘s activities would be unconstitutional. But the defendant was on notice that the court would be deciding all issues relating to the general dispute. The Village should reasonably have known at the time it initially waived its jury trial right that the constitutionality of RLUIPA could constitute a part of the dispute. Like an amended complaint that simply asserts new theories of recovery, an amended answer that asserts new defense theories based on the same facts does not reestablish the defendant‘s right to demand a jury trial. Hence, the district court correctly ruled the Village had not revived its right to such under
The Village also insists that the district court abused its discretion by not ordering a jury trial under
V All Writs Act and Supplemental State Law Claims
After determining the Village violated RLUIPA, the district court ordered the ZBA immediately and unconditionally to issue WDS‘s special permit modification. Such relief is proper under RLUIPA. See
CONCLUSION
Accordingly, for the foregoing reasons, the judgment of the district court is affirmed.