Westchester Day School v. Village of Mamaroneck

Background:

For more than 50 years (since 1948), the Westchester Day School, a co-educational Jewish Orthodox elementary/middle school has provided educational services on its 26 acre site at 856 Orienta Avenue in Mamaroneck, New York. The curriculum includes both secular and Judaic subjects, and students study the Bible, Jewish history, law and ritual practice, language and culture. Daily activities include prayer and observance of Jewish holidays, practices and customs as part of the curriculum. Current enrollment approaches 500 students.

Of the four buildings on the property, two are quite old: the original three story Estate House, built in about 1897, and the Carriage House (a former horse stable) built in 1892. Most elementary/middle school classes are held in Wolfson Hall, built in the 1960s. A fourth building is occupied by the Westchester Hebrew High School (operated by a separate board of trustees, and unaffected by this case) and was built in 1979.

Enrollment at Westchester Day School has more than doubled since Wolfson Hall was built, but no meaningful new construction has taken place in nearly 40 years.

In 1998, the school commissioned an archeitectural firm specializing in school architecture to design a new building ("Gordon Hall"), that would connect the Estate House and the Carriage House. The new building's appearance would be "in harmony with the century old buildings it connects," meet zoning code requirements limiting it to 29 feet in height, and provide 44,000 square feet of new space. Gordon Hall would add 25 classrooms, a multipurpose room and a chapel where students and staff can pray. The new building would enable the school to decomission 13 classrooms in the Estate House, which were converted from living space and most of which are small, irregularly shaped, and ill-suited to classroom use. One of the largest rooms would become a library and study center. Plans also provide for reinforcing and strenthening the structural integrity of the Estate House, which are considered urgent given the age and condition of the building. The Estate House renovations cannot, however, begin until Gordon Hall is built and occupied, so that students can be completely removed.

Administrative Action:

In 1999, the school presented a plan to the village Board of Appeals for renovating the Carriage House for classroom use, and notified them that the school would be submitting a master plan for additional renovations and new construction.

On October 10, 2001 the school submitted an application for permission to undertake the project, which complied with all zoning regulations and required no variances or other special permission.

The Board of Appeals held hearings on the project proposal on November 1 and December 6, 2001 and on January 3 and February 7, 2002. Two things were significant about the February meeting: 1) the Board voted unanimously to issue a "negative declaration" under provisions of New York's State Environmental Quality Review Act (SEQRA), meaning that they determined that the project would not result in any significant adverse environmental impact; and 2) the Board responded to growing opposition from influential opponents in the tony neighborhood by delaying still further action on the permit application, and instead directed school officials to meet with neighbors to address their concerns.

The school mailed a detailed description of the project to more than 500 households in the area and invited residents to a February 27 tour of the of the property and presentation on the project. About 75 people attended. But at the next Board of Appeals meeting, on March 7, vocal opponents again appeared, and the Board again adjourned without taking action.

Finally, at their meeting on April 4, 2002, the Board began by holding a private executive session, after which the Board chairman handed school officials a memo he'd written recommending that the "negative declaration" on environmental impact should be rescinded. A month later, the Village's planing consultants advised the Board that certain modifications to the school's application would be responsive to community and Board concerns related to parking, traffic, drainage and a cap on enrollment. Within a few weeks, the school submitted an "addendum" to their application that adopted most of the consultants' recommendations, including, with great reluctance, a cap on elementary school enrollment.

The school's efforts were of no avail. On August 1, 2002 the Board of Appeals voted 3-2 to rescind its "negative declaration" and to issue instead a "positive declaration," the effect of which was to require the school to "undertake unnecessary, redundant, costly and time-consuming environmental studies and to prepare a full EIS (environmental impact statement)."

Legal Action:

On August 7, 2002, Westchester Day School filed suit in U.S. District Court for the Southern District of New York. On September 18, the Village moved to dismiss and the school cross-moved for partial summary judgment.

On December 4, U.S. District Judge William C. Conner granted the school's motion for partial summary judgment, holding that the "negative declaration" had not been properly rescinded, and was still in full force and effect. The Board of Appeals, "after extensive hearing and consideration, concluded that plaintiff's proposed improvements to its educational facility, would not have sufficient negative impact on the environment to warrant the delay and expense of an EIS. That conclusion was rescinded, not because of any change in the Project or any new evidence, but in response to belated public outcry. Such rescission did not satisfy the requirements of the applicable statute."

That nullified the EIS process, but in the meantime the school had incurred fees and expenses related to the EIS and the lawsuit totalling more than $250,000. The matter was now once again before the Board of Appeals.

Administrative Action - Part 2

On January 8, 2003 the Board held yet another hearing, but put off action for a month. Two days later, Judge Conner directed the Board to give the school a list of outstanding issues of concern that might stand in the way of approval of the special permit modification. The Board complied, and the school responded in writing. Several months later, on March 13, 2003, the Board of Appeals finally closed the public hearing process and began its deliberations, triggering a legal requirement that it render a decision within 62 days.

On the 61st day (May 13), without any public deliberation, a resolution denying the application in its entirety was adopted on a vote of 3-2.

Legal Action - Part 2

On May 29, 2003 Westchester Day School filed an amended complaint, charging the Village with violations of RLUIPA, the All Writs Act and the Civil Rights Act.

The Village challenged the constitutionality of RLUIPA

Decision

On September 5, 2003, Judge Conner issued an Opinion and Order that decided the case based entirely on RLUIPA. He was clearly reluctant to bring a federal court's power to bear in such a case:

"Initially, we are mindful of the general proscription that federal courts should not become zoning boards of appeal to review land use determinations. However, 'federal courts may exercise jurisdiction in zoning matters when local zoning decisions, such as here, infringe national interests protected by statute or by the constitution.' Defendants argue that plaintiff's motion for partial summary judgement should be denied on the grounds that RLUIPA is unconstitutional. We disagree."

Citing Freedom Baptist Church v. Township of Middletown, Cottonwood Christian Center v. Cypress Redevelopment Agency, (both Becket Fund cases) and Murphy v. Zoning Commission of Town of New Milford, Judge Connor upheld RLUIPA's constitutionality against every challenge:

• RLUIPA is a constitutional exercise of the Enforcement Clause of the Fourteenth Amendment. "To the extent that RLUIPA may cover a particular case that is not on all fours with an existing Supreme Court decision, 'it nevertheless constitutes the kind of congruent and, above all, proportional remedy Congress is empowered to adopt under § 5 of the Fourteenth Amendment.' In fact, the Supreme Court noted four years after City of Boerne that, 'congress is not limited to mere legislative repetition of this Court's constitutional jurisprudence,' but may also prohibit 'a somewhat broader swath of conduct.'"
  
  
• "RLUIPA is a permissible exercise of Congress's broad power to act under the Commerce Clause." And in this case, "plaintiff's activities in operating an orthodox Jewish day school is an economic endeavor within the meaning of the Commerce Clause."
  
  
• RLUIPA does not violate the Establishment Clause. "Defendants argue that RLUIPA fails under the Lemon Test. We disagree. The Lemon Test and the Establishment Clause call for neutrality. RLUIPA is neutral. It does not favor one religion over any other but applies equally to all religions."
  
  
• "RLUIPA is a valid enactment pursuant to Congress's powers under the Commerce Clause and Section 5 of the Fourteenth Amendment and therefore does not violate the Tenth Amendment."

Having established the constitutionality of RLUIPA, he turned to whether the school had made a prima facie case that the law had been violated. He found that it had, and that the Village could not meet the burden of demonstrating a compelling government interest for its actions.

"With respect to the issue of traffic intensity, the Court extensively discussed this issue in its prior Order, and concluded that it was not a sufficient reason for the ZBA's reversal of its negative declaration of environmental impact. . . In any event, traffic concerns have never been deemed compelling government interests. . . We find defendants' second concern, parking, even less compelling."

"We again emphasize our reluctance to act as a zoning board of appeals to review land use determinations. However, we are firmly convinced that defendants' complete denial of WDS's Application was not based on any compelling governmental interest or on a fair balancing of environmental concerns with the rights to WDS to the reasonable use of its property and that defendants' abrupt reversal of its prior approval and its 3-2 vote to deny plaintiff's Application was a reaction to belated public outcry. . ."

"We conclude that this denial is a substantial burden on plaintiff's exercise of religion because the modifications WDS seeks will enable it, for well into the foreseeable future, to more efficiently, effectively and most importantly, safely serve its student population and to fulfill its religious and educational mission."

"We are convinced that there are no issues of material fact requiring a trial," he concluded. "We therefore grant plaintiff's motion for partial summary judgment on its RLUIPA claim and in doing so annul and set aside the May 13, 2003 determination of the ZBA that denied the Application and order the immediate and unconditional issuance of WDS's special permit modification."

One business day after Judge Conner handed down his decision, on September 8, 2003, the Village appealed the case to the U.S. Circuit Court of Appeals for the Second Circuit, attacking RLUIPA's constitutionality and denying that it had imposed a substantial burden on the school.

On January 20, 2004, The Becket Fund for Religious Liberty, on behalf of itself and the Council for Christian Colleges and Universities and the Association of Christian Schools International, filed an amicus curiae brief (PDF format, 117K) with the Second Circuit. The brief addresses the "threshold question in this case," whether the Village "imposed a substantial burden on the School's religious exercise," and argues that "the appropriate standard for determining whether a burden is 'substantial' is to ask whether government action puts pressure on a religious institution to modify its religious behavior, or prevents it from engaging in religious conduct, in a way that is greater than a mere inconvenience."

In the Westchester Day School case, the brief argues, "application of this test to the undisputed facts readily supports the lower court's holding that denying a special use permit to the School for a chapel, modern classrooms for religious and secular instruction, and sufficient facilities to accommodate additional students seeking a Jewish education is no mere inconvenience, but instead substantially burdens the School's ability to carry out its religious mission."

The Becket Fund brief also explores in considerable detail the reasons why RLUIPA was a constitutional exercise of Congressional authority under §5 of the Fourteenth Amendment. "RLUIPA codifies current First and Fourteenth Amendment standards—based on overwhelming evidence in the legislative history demonstrating the need for better enforcement of those standards—and institutes eminently proportional remedies. Thus, by design, RLUIPA respects the Court's Enforcement Clause jurisprudence and falls squarely within the bounds of that enumerated power."

The case is currently set for oral argument during the week of March 1, 2004.

(Westchester Day School v. Village of Mamaroneck, et al., U.S. District Court for the Southern District of New York, case No. 02-CV-6291; U.S. Court of Appeals for the Second Circuit, case No. 03-9042)

Documents (note—several are very large PDF files):

Complaint (PDF format, 1.1MB)
Opinion and Order (PDF format, 913K)
Westchester Day School appellant's brief (PDF format, 1.8MB)
Becket Fund amicus brief (PDF format, 117K)

On September 27, 2004, the United States Court of Appeals for the Second Circuit handed down its decision on the case. Judge Leval vacated the lower court's grant of summary judgment, finding that there was not enough evidence to compel the judgment in Westchester Day School's favor. The case was remanded back to the U.S. District Court for the Southern District of New York.

Judge Leval made no comment on whether there was a compelling governmental interest involved. More facts needed to be gathered to make such a judgment, he said.

The lower court had found that the Village of Mamaroneck had completely denied the school's application. But Judge Leval argued that there was not enough evidence to support this conclusion--the school might still have had an application approved if it had made various changes to the original application.

The most serious of Judge Leval's findings were in his discussion of whether there was a "substantial burden on religious exercise" put on the school by the denial of its application. Not everything that takes place in a religious school is religious activity, he maintained. "Because the School delivers a secular and religious education in a religious environment, the [lower] court reasoned that any program of the School to improve its facilities in a manner that would improve the students’ overall educational experience would be protected by RLUIPA from the implementation of a land use regulation that would prevent its accomplishment," the judge wrote. He disagreed, saying he was concerned that such reasoning leads government to prefer religious schools over secular--both schools could have the same plan for expansion of secular education, and only the first would be protected under RLUIPA.

However, he did not address the question of whether RLUIPA was constitutional, saying, "We have no need to decide the question at this time." He decided to remand the case before getting to the constitutional claims.

Articles & News Items

• "Religious burden, Congressional authority key issues in Jewish school case," January 20, 2004
• "Westchester Day School Case Moves to 2nd Circuit," December 1, 2006