Fortress Bible Church v. Feiner, No. 10-3634 (2d Cir. 2012)
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This appeal concerned a longstanding land-use dispute between the Church and the Town over the Church's plan to build a worship facility and school on land that it owned within the Town. The Town appealed from the district court's holding that they violated the Church's rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq., as well as the First Amendment, the Equal Protection Clause, and New York constitutional and statutory law. The court concluded that the Town's arguments on appeal were without merit and concluded that the district court correctly applied the law, discerning no clear error in its factual findings. Accordingly, the court affirmed the judgment.
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10-3634-cv Fortress Bible Church v. Feiner 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 5 August Term 2011 (Argued: September 23, 2011 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Decided: September 24, 2012) Docket No. 10-3634-cv -----------------------------------------------------x FORTRESS BIBLE CHURCH, REVEREND DENNIS G. KARAMAN, Plaintiffs-Appellees, -- v. -PAUL J. FEINER, individually & in his official capacity as the Supervisor of the Town of Greenburgh, SONJA BROWN, in her official capacity as Councilwoman for the Town of Greenburgh, KEVIN MORGAN, in his official capacity as Councilman for the Town of Greenburgh, DIANA JUETTNER, in her official capacity as Councilwoman for the Town of Greenburgh, FRANCIS SHEEHAN, in his official capacity as Councilman for the Town of Greenburgh, TOWN BOARD OF GREENBURGH, THE TOWN BOARD OF THE TOWN OF GREENBURGH, TOWN OF GREENBURGH, THE TOWN OF GREENBURGH, Defendants-Appellants. -----------------------------------------------------x B e f o r e : WALKER, CHIN and LOHIER, Circuit Judges. Defendants-appellants Paul J. Feiner, Sonja Brown, Kevin 32 Morgan, Diana Juettner, Francis Sheehan, Town Board of 33 Greenburgh, the Town Board of the Town of Greenburgh, and the 34 Town of Greenburgh, appeal from a judgment of the United States 35 District Court for the Southern District of New York (Stephen C. 1 1 Robinson, Judge), holding that they had violated plaintiffs- 2 appellees rights under the Religious Land Use and 3 Institutionalized Persons Act as well as the First Amendment, the 4 Equal Protection Clause, and New York constitutional and 5 statutory law. 6 applied the law and discern no clear error in its factual 7 findings. 8 9 10 11 12 13 14 15 16 17 18 19 20 We conclude that the district court correctly AFFIRMED. ROBERT A. SPOLZINO (Joanna Topping, Cathleen Giannetta, on the brief), Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, New York, for Defendants-Appellants. DONNA E. FROSCO, Keane & Beane, P.C., White Plains, New York, for Plaintiffs-Appellees. JOHN M. WALKER, JR., Circuit Judge: This appeal concerns a longstanding land-use dispute between 21 plaintiff-appellee Fortress Bible Church ( the Church ) and 22 defendant-appellant Town of Greenburgh, New York ( the Town ) 23 over the Church s plan to build a worship facility and school on 24 land that it owned within the Town. 25 contentious administrative proceedings effectively preventing the 26 Church s project from going forward, the Church, along with its 27 pastor, plaintiff-appellee Reverend Dennis G. Karaman 28 ( Karaman ), sued the Town, its Town Board ( the Board ), and 29 several Board members (collectively the Town defendants ) in the 2 After a series of 1 United States District Court for the Southern District of New 2 York (Stephen C. Robinson, Judge). 3 of the Religious Land Use and Institutionalized Persons Act of 4 2000 ( RLUIPA ), 42 U.S.C. § 2000cc et seq., as well as of its 5 constitutional Free Exercise and Equal Protection rights, and 6 Article 78 of New York s Civil Procedure Law. 7 bench trial, the district court entered judgment for the 8 plaintiffs on all counts. 9 contentions: The Church alleged violations After a 26-day On appeal, the Town makes six (1) RLUIPA is by its terms inapplicable to the 10 environmental quality review process employed by the Town to 11 reject the proposal, (2) there was insufficient evidence that the 12 defendants had imposed a substantial burden on plaintiffs 13 religious exercise under RLUIPA, (3) plaintiffs class-of-one 14 Equal Protection claim is not viable because they have not 15 alleged a single comparator similarly situated in all respects, 16 (4) plaintiffs Free Exercise rights were not violated, (5) the 17 Town did not violate Article 78, and (6) the district court 18 lacked the authority to order the Town Zoning Board, a non-party, 19 to take any action with regard to the Church. 20 these contentions to be without merit and therefore AFFIRM the 21 decision of the district court. 3 We find all of 1 2 BACKGROUND Facts 3 In reviewing a judgment after a bench trial, we accept the 4 district court s factual findings unless they are clearly 5 erroneous. 6 33, 38-39 (2d Cir. 2009). 7 any of the district court s findings that are pertinent to this 8 appeal, we set forth the relevant facts as found by the district 9 court.1 10 See Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d Because we do not identify error in I. The Church s Proposal 11 Plaintiff Fortress Bible Church is a Pentecostal church 12 established in the 1940s. 13 organization with approximately 175 members. 14 worship activities, the Church runs Fortress Christian Academy 15 ( the School ), a private Christian school. 16 Karaman is the Church s pastor. 17 It is a tax-exempt religious In addition to its Plaintiff Dennis G. The Church is currently located in Mount Vernon, New York. 18 Its Mount Vernon facilities, however, are not adequate to 19 accommodate its religious practice. 20 purchased a parcel of land on Pomander Drive in the Town of 21 Greenburgh, New York, with the intention of building a larger 22 facility. 1 In 1998, the Church This parcel ( the Pomander Drive property ) was vacant A more comprehensive accounting of the facts can be found in the district court s thorough opinion. Fortress Bible Church v. Feiner, 734 F. Supp. 2d 409 (S.D.N.Y. 2010). 4 1 except for a small residence on one edge. 2 neighborhood includes residences, business offices, churches, and 3 major roads. 4 the Town of his intent to build a church and school on the 5 grounds, and stated that if the property was not suitable for 6 this purpose, he would not purchase it. 7 The surrounding Prior to purchasing the property, Karaman advised The Church sought to build a single structure on the 8 Pomander Drive property that would house a worship facility and a 9 school. The proposed church would accommodate 500 people and the 10 school would accommodate 150 students. 11 125 parking spaces and occupy 1.45 acres of the 6.53 acre plot. 12 To construct its proposed building, the Church required three 13 discretionary land use approvals from the Town: (1) site plan 14 approval from the Board, (2) a waiver of the landscaped parking 15 island requirement, and (3) a variance from the Town s Zoning 16 Board of Appeals ( the Zoning Board ) to allow the building to be 17 located closer to one side of the property. 18 proposal required discretionary government approval, it triggered 19 New York s State Environmental Quality Review Act ( SEQRA ), N.Y. 20 Comp. Codes R. & Regs. Tit. 6, §§ 617.2(b), 617.3(a) (requiring 21 environmental review process whenever government takes certain 22 discretionary action). 23 5 The structure would have Because the Church s 1 2 II. The SEQRA Review Process The SEQRA review process entails several stages. First, the 3 lead agency (in this case, the Board) must make an initial 4 determination of environmental significance. 5 617.6. 6 lead agency can issue a negative declaration, meaning there is no 7 potential for significant adverse environmental impact, or a 8 conditioned negative declaration, meaning that the potential for 9 adverse environmental impact can be mitigated by the agency. 6 N.Y.C.R.R. § If the environmental impact of the proposal is small, the § 10 617.7. 11 proposal has the potential for at least one significant adverse 12 environmental impact, the lead agency must issue a positive 13 declaration and require the applicant to submit an Environmental 14 Impact Statement ( EIS ) evaluating the environmental impact of 15 the project. 16 steps. 17 scope of the environmental impact), a draft EIS ( DEIS ), and a 18 final EIS ( FEIS ), and must seek feedback at each stage from the 19 public and approval from the lead agency. 20 Alternately, if the lead agency determines that the § 617.7. Preparation of an EIS involves several The applicant prepares a scoping document (outlining the §§ 617.8, 617.9. The Church submitted its initial proposal on or about 21 November 24, 1998. On January 27, 1999, the Church and its 22 consultants appeared at a Board work session to discuss the 23 application. 24 project s impact on local traffic and access to the property. The Board requested that the Church examine the 6 In 1 response, the Church hired consultants to perform a traffic study 2 of the area. 3 Department of Transportation ( NYSDOT ) and nearby residents. 4 or about January 17, 2000, the Church submitted a revised 5 proposal which included a comprehensive traffic study and 6 additional information about potential environmental impacts. 7 After reviewing the proposal, Anthony Russo ( Russo ), the Town 8 Planning Commissioner, believed that the Church had adequately 9 mitigated the Town s traffic concerns and advised the Board that 10 11 It also sought feedback from the New York State On it could issue a Conditioned Negative Declaration. On July 11, 2000, Karaman and other Church representatives 12 attended a work session with the Board. 13 defendant Town Supervisor Paul Feiner ( Feiner ) stated that he 14 was concerned with the Church s tax-exempt status and asked it to 15 donate a fire truck or make some other payment in lieu of taxes. 16 Other Board members commented to the effect that they did not 17 want the property to be used as a church. 18 donate a fire truck or make any other payment in lieu of taxes. 19 On July 19, 2000, the Board issued a positive declaration, 20 triggering the full SEQRA review process. 21 At the meeting, The Church declined to Over the next several years, the Church provided all of the 22 information required by the SEQRA process. It produced a scoping 23 document followed by a DEIS, which the Town accepted as complete 24 on October 24, 2001. The Town held hearings on the proposal on 7 1 December 12, 2001, and January 9, 2002. During this comment 2 period, NYSDOT submitted comments indicating its approval of the 3 Church s traffic study. 4 the Town continued to resist the project. 5 Karaman met with Feiner to discuss the review process. 6 asked what he could do to move the process along, and Feiner 7 responded that the Church could agree to make yearly financial 8 contributions to the fire department. 9 suggested to Russo on multiple occasions that he should stop or Despite the Church s efforts, however, On May 3, 2001, Karaman Another Board member 10 kill the project. 11 a new Planning Commissioner and retained consultants to analyze 12 the Church s proposal. 13 In early 2002, the Town replaced Russo with On April 5, 2002, after further consultation with Town 14 officials, the Church submitted a proposed FEIS. The Town 15 refused to discuss the project with the Church and refused to 16 move forward with the review process. 17 the DEIS and scoping document as complete, which would normally 18 finalize the universe of issues relevant to SEQRA review, the 19 Town began to request new information and raise new issues for 20 the Church to address. 21 information and attempted to meet the Town s demands. 22 summer of 2002, the Town stopped the review process altogether 23 due to the Church s refusal to reimburse it for certain disputed 24 fees the Town had incurred during the process. Despite having accepted The Church provided the requested 8 During the On January 17, 1 2003, the Church sent a letter to the Town summarizing its view 2 that the Town had inappropriately delayed its building 3 application despite its consistent efforts to meet the Town s 4 requests. 5 On February 25, 2003, the Town took the unusual step of 6 taking over preparation of the FEIS. 7 Church that it had done so until March 17, 2003. 8 the FEIS to include a number of additional problems with the 9 proposal, and did not consider the Church s input addressing 10 It did not notify the The Town edited those problems. 11 On June 11, 2003, the Church instituted this action. 12 alleged violations of RLUIPA and its rights under the First and 13 Fourteenth Amendments, as well as New York law, and sought an 14 order compelling the Town to complete SEQRA review and approve 15 the project. 16 It On April 14, 2004, the Town denied the Church s 17 application.2 18 primary reasons for rejecting the application as: 19 of a recently enacted steep slope zoning ordinance; (2) stress 20 on the police and fire departments; (3) retaining walls that 21 constituted an attractive nuisance; and (4) traffic and parking 22 problems. 2 In its findings statement the town stated its (1) violation The Town initially tried to adopt this findings statement on January 6, 2004, but the district court declared that statement void because it violated New York s Open Meetings Law. 9 1 2 III. The District Court Decision The district court conducted a bench trial over 26 non- 3 consecutive days between October 2006 and March 2007. On August 4 11, 2010, in a lengthy opinion containing 622 factual findings, 5 the district court found that the Town had violated the Church s 6 rights under RLUIPA, the Free Exercise Clauses of the First 7 Amendment and New York Constitution, the Equal Protection Clauses 8 of the Fourteenth Amendment and New York Constitution, and 9 Article 78 of New York s Civil Procedure Law. Fortress Bible 10 Church v. Feiner, 734 F. Supp. 2d 409, 522-23 (S.D.N.Y. 2010). 11 It found that the Town had acted in bad faith and had used the 12 SEQRA review process illegitimately as a way to block the 13 Church s proposal. 14 substantially burdened the Church by preventing it from moving to 15 an adequate facility, resulting in a violation of RLUIPA and the 16 Free Exercise Clause. 17 court also found an Equal Protection violation based on a class- 18 of-one theory. 19 Church had not presented a single comparator similarly situated 20 in all respects, it found the Church s comparators to be 21 sufficient with regard to each of the discrete issues cited by 22 the Town. 23 staff, including at least one Board member, had intentionally It therefore concluded that the Town had Id. at 496-508, 511-12. Id. at 513-17. The district While acknowledging that the Additionally, the district court found that Town 10 1 destroyed discoverable evidence despite specific instructions not 2 to do so. 3 The district court ordered broad relief: (1) it annulled 4 the positive declaration and findings statement; (2) it ordered 5 that the Church s 2000 site plan be deemed approved for SEQRA 6 purposes and enjoined any further SEQRA review; (3) it ordered 7 the Board to grant the Church a waiver from the landscaped 8 parking island requirement; (4) it ordered the Zoning Board to 9 grant a variance permitting a side building location; (5) it 10 ordered the Town to issue a building permit for the 2000 site 11 plan; (6) it enjoined the Town from taking any action that 12 unreasonably interferes with the Church s project; and (7) it 13 imposed $10,000 in sanctions for spoliation of evidence. 14 520-22. 15 additional information with regard to compensatory damages. 16 at 520-21. 17 appeals. Id. at The district court directed the parties to submit Judgment was entered on August 12, 2010. Id. The Town 18 19 20 DISCUSSION On appeal, the Town challenges the district court s holding 21 that it violated the Church s rights under RLUIPA, the First and 22 Fourteenth Amendments, the New York Constitution, and Article 78. 23 It also contends that the district court lacked any authority 24 over the Zoning Board, a non-party to this litigation. 11 1 We review a district court s conclusions of law after a 2 bench trial de novo and its findings of fact for clear error. 3 Reynolds v. Giuliani, 506 F.3d 183, 189 (2d Cir. 2007). 4 affirm on any ground appearing in the record. 5 Inc., v. Cuomo, 624 F.3d 38, 49 (2d Cir. 2010). 6 court s grant of injunctive relief is reviewed for abuse of 7 discretion. 8 of New York, 626 F.3d 667, 669 (2d Cir. 2010). We may Freedom Holdings, The district Third Church of Christ, Scientist, of N.Y.C. v. City 9 10 RLUIPA 11 A. 12 Applicability RLUIPA bars states from imposing or implementing a land use 13 regulation in a manner that imposes a substantial burden on a 14 person or institution s religious exercise unless it is the least 15 restrictive means of furthering a compelling state interest. 16 U.S.C. § 2000cc(a)(1). 17 zoning or landmarking law, or the application of such a law, that 18 limits or restricts a claimant s use or development of land. 19 2000cc-5(5). 20 inapplicable because SEQRA is not a land use regulation within 21 the meaning of the statute.3 3 42 A land use regulation is defined as a § Appellants contend that RLUIPA is entirely Though we agree that SEQRA itself The Church contends that the Town has waived this argument by not raising it during trial. The issue was raised before the district court in a post-trial brief, and was considered by the district court. It is therefore proper to consider this argument on appeal. See Quest Med., Inc. v. Apprill, 90 F.3d 1080, 1087 (5th Cir. 1996). 12 1 is not a zoning or landmarking law for purposes of RLUIPA, we 2 hold that when a government uses a statutory environmental review 3 process as the primary vehicle for making zoning decisions, those 4 decisions constitute the application of a zoning law and are 5 within the purview of RLUIPA.4 6 Environmental quality laws are designed to inject 7 environmental considerations into government decisionmaking and 8 minimize the adverse environmental impact of regulated actions. 9 See City Council of Watervliet v. Town Bd. of Colonie, 3 N.Y.3d 10 508, 515, 520 n.10 (2004). 11 the federal government with the National Environmental Policy Act 12 of 1969 ( NEPA ), Pub. L. 91-190, 83 Stat. 852 (1970) (codified 13 as amended at 42 U.S.C. § 4321 et seq.). See, Caleb W. 14 Christopher, Success by a Thousand Cuts: The Use of 15 Environmental Impact Assessment in Addressing Climate Change, 9 16 Vt. J. Envtl. L. 549, 552-53 (2008). 17 including New York, have enacted state government review laws 18 patterned after NEPA. 19 Quality Act, Cal. Pub. Res. Code § 21002.1 et seq. 20 21 This approach was first adopted by A number of states, See, e.g., California Environmental No court of appeals has yet addressed whether an environmental quality statute may constitute a zoning law under 4 The parties agree that no landmarking law was involved in this dispute. We therefore need only decide whether the SEQRA review process, as employed here, constituted the application of a zoning law. 13 1 RLUIPA.5 2 precisely, at its core it involves the division of a community 3 into zones based on like land use. 4 Playtime Theatres, Inc., 475 U.S. 41, 54-55 (1986); Daniel R. 5 Mandelker, Land Use Law, §§ 4.02-4.15 (5th ed. 2003); Patricia E. 6 Salkin, American Law of Zoning § 9.2 (5th ed. 2008). 7 little difficulty concluding that SEQRA itself is not a zoning 8 law within the meaning of RLUIPA. 9 the division of land into zones based on use. Although the purview of zoning is hard to delineate See City of Renton v. We have SEQRA is not concerned with It is focused on 10 minimizing the adverse environmental impact of a wide range of 11 discretionary government actions, many of which are totally 12 unrelated to zoning or land use.6 13 8-0105(4). 14 automatically implicate RLUIPA. 15 16 See N.Y. Envtl. Conserv. Law § Thus, the Town s use of the SEQRA process did not By its terms, however, RLUIPA also applies to the application of a zoning law. 42 U.S.C. § 2000cc-5(5). Although 5 The Ninth Circuit noted the question but declined to reach it in San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1036 (9th Cir. 2004). 6 Actions that trigger SEQRA include (i) projects or activities directly undertaken by any agency; or projects or activities supported in whole or part through contracts, grants, subsidies, loans, or other forms of funding assistance from one or more agencies; or projects or activities involving the issuance to a person of a lease, permit, license, certificate or other entitlement for use or permission to act by one or more agencies; [and] (ii) policy, regulations, and procedure-making. N.Y. Envtl. Conserv. Law § 8-0105(4). 14 1 SEQRA by itself is not a zoning law, in this case the Town used 2 the SEQRA review process as its vehicle for determining the 3 zoning issues related to the Church s land use proposal. 4 fact that these issues were addressed during the SEQRA review 5 process rather than the Town s normal zoning process does not 6 transform them into environmental quality issues. 7 conclude that, in these circumstances, the Town s actions during 8 the review process and its denial of the Church s proposal 9 constituted an application of its zoning laws sufficient to 10 11 The We therefore implicate RLUIPA for a number of reasons. First, the SEQRA review process was triggered because the 12 Church required three discretionary land use approvals from the 13 Town: (1) site plan approval, (2) a waiver of the landscaped 14 parking island requirement, and (3) a variance to allow the 15 building to be located closer to one side of the property. 16 approvals all relate to zoning and land use rather than 17 traditional environmental concerns. 18 v. Town of Surfside, 366 F.3d 1214, 1235 n.17 (11th Cir. 2004) 19 (citing regulations about building size and parking as run of 20 the mill zoning laws); cf. 6 N.Y.C.R.R. § 617.7(c)(1) (providing 21 examples of adverse environmental impacts under SEQRA). 22 Town had issued a Negative Declaration and foregone SEQRA review, 23 these three issues would have been treated by the Town as zoning 15 These See Midrash Sephardi, Inc. If the 1 questions and their outcome would have been subject to challenge 2 under RLUIPA. 3 Second, in its Town Code, the Town has intertwined the SEQRA 4 process with its zoning regulations.7 5 to SEQRA are contained in Part II of the Town Code, titled Land 6 Use. 7 . . shall be carried out, approved or funded by [a Town agency] 8 unless it has complied with [SEQRA]. 9 approval is required for a building permit. The regulations relating Section 200-6 of the Town Code states that [n]o action . Under § 285-55, site plan Since site plan 10 approval is a discretionary approval that triggers SEQRA, any 11 construction project will involve some level of SEQRA review. 12 a positive declaration is issued, the applicant will have to 13 proceed through the SEQRA process before addressing any zoning 14 issues, or resolve those issues during the SEQRA process. 15 N.Y.C.R.R. § 617.3(a); Town Code §§ 200-8 200-11 (describing 16 SEQRA review process that must be completed). If 6 17 Third, once the review process was underway, the Town 18 focused on zoning issues rather than traditional environmental 19 issues. 20 Although increased car traffic potentially raises environmental 21 concerns due to increased emissions, the district court s factual 22 findings make clear that the Town was concerned with the common 7 The Town s primary stated concern was increased traffic. The Town Code is available at http://www.ecode360.com/GR0237. 16 1 everyday annoyances associated with traffic, not with its 2 environmental impact. 3 line of sight for cars turning into the proposed property and the 4 adequacy of the Church s parking. 5 the project on the height of proposed retaining walls and the 6 alleged failure to comply with a steep slope ordinance. 7 are standard land use issues. 8 The Town s FEIS emphasized concerns about The Town also based denial of These Finally, to hold that RLUIPA is inapplicable to what amounts 9 to zoning actions taken in the context of a statutorily mandated 10 environmental quality review would allow towns to insulate zoning 11 decisions from RLUIPA review. 12 project s zoning details during a SEQRA review and completely 13 preempt its normal zoning process. 14 immune to RLUIPA challenge. 15 would allow a town to evade RLUIPA by what essentially amounts to 16 a re-characterization of its zoning decisions. 17 A town could negotiate all of a These decisions would then be We decline to endorse a process that Indeed, the Town s actions were to that effect 18 notwithstanding that RLUIPA was enacted while the SEQRA review 19 process was underway. 20 findings demonstrate that the Town disingenuously used SEQRA to 21 obstruct and ultimately deny the Church s project. 22 own Planning Commissioner (subsequently replaced by the Town) 23 believed that the alleged environmental impacts did not warrant a The district court s comprehensive 17 The Town s 1 positive declaration, but the Town initiated the SEQRA review 2 process anyway after the Church refused to accede to the Town s 3 demand that it donate a fire truck or provide some other payment 4 in lieu of taxes. 5 statement to kill the project on the basis of zoning concerns 6 despite the fact that there were no serious environmental 7 impacts. 8 regard to its decisions on zoning issues simply because it 9 decided them under the rubric of an environmental quality review 10 The Town then manipulated its SEQRA findings We decline to insulate the Town from liability with process. 11 To recap, in no sense do we believe that ordinary 12 environmental review considerations are subject to RLUIPA. 13 However, when a statutorily mandated environmental quality review 14 process serves as a vehicle to resolve zoning and land use 15 issues, the decision issued constitutes the imposition of a land 16 use regulation as that term is defined in RLUIPA. 17 § 2000cc(a)(1); 2000cc-5(5). 18 B. Substantial Burden See 42 U.S.C. 19 The Town also argues that, if RLUIPA does apply, the Church 20 was not substantially burdened within the meaning of the statute 21 because the Church had alternative means of building a new 22 facility. 23 suffered was an inability to build the exact structure it The Town contends that the only harm the Church 18 1 desired, which does not rise to the level of a substantial 2 burden. 3 district court s finding that the Church s current facilities 4 were inadequate to accommodate its religious practice and that 5 the Town was acting in bad faith and in hostility to the project 6 such that it would not have allowed the Church to build any 7 worship facility and school on the Pomander Drive Property. 8 Accordingly, we affirm the district court s holding that the 9 Town s actions during the SEQRA process substantially burdened 10 We find sufficient evidence in the record to support the the Church s religious practice. 11 RLUIPA prohibits a government from imposing a land use 12 regulation in a way that creates a substantial burden on the 13 religious exercise of an institution.8 14 A substantial burden is one that directly coerces the religious 15 institution to change its behavior. 16 Vill. of Mamaroneck, 504 F.3d 338, 349 (2d Cir. 2007) (emphasis 17 omitted). 18 religious exercise, and there must be a close nexus between the 19 two. 8 42 U.S.C. § 2000cc(a)(1). Westchester Day Sch. v. The burden must have more than a minimal impact on Id. 42 U.S.C. § 2000cc(b) also bars discrimination against a religious entity or treatment on unequal terms with nonreligious entities. The district court found a substantial burden and therefore did not reach the plaintiffs equal terms or discrimination RLUIPA claims. Fortress Bible Church, 734 F. Supp. 2d 409, 508-09. Since we affirm on the substantial burden claim, we too need not reach the claims for discrimination or unequal terms. 19 1 A denial of a religious institution s building application 2 is likely not a substantial burden if it leaves open the 3 possibility of modification and resubmission. 4 the town s stated willingness to consider another proposal is 5 disingenuous, a conditional denial may rise to the level of a 6 substantial burden. 7 arbitrary, capricious, unlawful, or taken in bad faith, a 8 substantial burden may be imposed because it appears that the 9 applicant may have been discriminated against on the basis of its Id. Id. However, if Moreover, when the town s actions are 10 status as a religious institution. 11 Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of 12 New Berlin, 396 F.3d 895, 900 (7th Cir. 2005). 13 Id. at 350-51; see also The district court credited Karaman s testimony that the 14 Church s Mount Vernon facility was not adequate to accommodate 15 its religious practice. 16 at 488-90. 17 unable to expand its membership, which it believes is a God-given 18 mission, host missionaries, perform full-immersion baptisms, or 19 perform altar calls, in which members of the congregation pray 20 at the altar. 21 Church was unable to adequately run a Christian school because 22 the School s present facilities did not have enough space to 23 accommodate handicapped students or higher-level subjects. Fortress Bible Church, 734 F. Supp. 2d Specifically, Karaman stated that the Church was Id. at 488-89. Karaman also testified that the 20 Id. 1 at 490-91. 2 that the Church was substantially burdened by its inability to 3 construct an adequate facility. 4 We identify no error in the district court s finding Similarly, we find no error in the district court s finding 5 that the Defendants purported willingness to consider a 6 modified plan [was] wholly disingenuous. 7 district court identified ample evidence that the Town wanted to 8 derail the Church s project after it refused to accede to its 9 demand for a payment in lieu of taxes, and that it had Id. at 502. The 10 manipulated the SEQRA process to that end. 11 Town continually rejected the Church s attempts to accommodate 12 its stated concerns. 13 court s finding that the Town s actions amounted to a complete 14 denial of the Church s ability to construct an adequate facility 15 rather than a rejection of a specific building proposal. 16 Westchester Day Sch., 504 F.3d at 349. 17 Additionally, the The record easily supports the district See Finally, we conclude, as the district court found based upon 18 ample evidence, that the burden on the Church was more than 19 minimal and that there was a close nexus between the Town s 20 denial of the project and the Church s inability to construct an 21 adequate facility. 22 501-08. 23 compelling interests were disingenuous, its actions violated Fortress Bible Church, 734 F. Supp. 2d at Because, as the district court found, the Town s stated 21 1 RLUIPA. Id. at 502-05, 508. Our conclusion that the Church was 2 substantially burdened is bolstered by the arbitrary, capricious, 3 and discriminatory nature of the Town s actions, taken in bad 4 faith. 5 attempted to extort from the Church a payment in lieu of taxes, 6 it ignored and then replaced its Planning Commissioner when he 7 advocated on the Church s behalf, and Town staff intentionally 8 destroyed relevant evidence. 9 finding regarding the Town s open hostility to the Church qua 10 church was not clear error; the record reflects comments from 11 members of the Board indicating that they were opposed to the 12 project because it was another church. 13 prevent the Church from building on its property relegated it to 14 facilities that were wholly inadequate to accommodate its 15 religious practice. 16 the Town violated the Church s rights under RLUIPA. Westchester Day Sch., 504 F.3d at 350-51. The Town Further, the district court s The Town s desire to We affirm the district court s finding that 17 18 19 Free Exercise The Town also challenges the district court s holding that 20 it violated the Church s First Amendment right to the Free 21 Exercise of Religion. 22 government actions that substantially burden the exercise of 23 sincerely held religious beliefs unless those actions are The First Amendment generally prohibits 22 1 narrowly tailored to advance a compelling government interest. 2 Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 3 574 (2d Cir. 2002). 4 strict scrutiny by reviewing courts. 5 government seeks to enforce a law that is neutral and of general 6 applicability, . . . it need only demonstrate a rational basis 7 for its enforcement. 8 494 U.S. 872, 879 (1990). In other words, such actions are subject to However, [w]here the Id.; see also Employment Div. v. Smith, 9 In this case, the district court applied strict scrutiny 10 and, referencing its RLUIPA analysis, concluded that the Town had 11 substantially burdened the Church s religious exercise and lacked 12 a compelling interest. 13 rational basis review, rather than strict scrutiny, is the 14 correct standard in this context because SEQRA is a neutral law 15 of general applicability. 16 scrutiny is appropriate because SEQRA review involves an 17 individualized assessment, thus placing it outside the purview of 18 Smith. 19 Hialeah, 508 U.S. 520, 537 (1993). 20 On appeal, the Town contends that The Church maintains that strict See Church of the Lukumi Babalu Aye, Inc. v. City of The Second Circuit has not specifically addressed whether 21 zoning decisions trigger rational basis review or strict 22 scrutiny. 23 held that zoning laws by their nature involve individualized Although some scattered district court decisions have 23 1 assessments and trigger strict scrutiny, see Cottonwood Christian 2 Ctr. v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1222- 3 23 (C.D. Cal. 2002); Freedom Baptist Church of Del. Cnty. v. Twp. 4 of Middletown, 204 F. Supp. 2d 857, 868 (E.D. Pa. 2002), the 5 majority of circuits that have addressed this question have 6 concluded that zoning laws with the opportunity for 7 individualized variances are neutral laws of general 8 applicability. 9 of Chicago, 342 F.3d 752, 764 (7th Cir. 2003); Cornerstone Bible See Civil Liberties for Urban Believers v. City 10 Church v. City of Hastings, 948 F.2d 464, 472 (8th Cir. 1991); 11 Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 12 651-55 (10th Cir. 2006); First Assembly of God of Naples, Fla., 13 Inc. v. Collier Cnty., 20 F.3d 419, 423-24 (11th Cir. 1994). 14 Similarly, this circuit has found a landmarking law to be 15 facially neutral despite the fact that it gave the government the 16 ability to designate historical districts, and therefore 17 entailed some measure of individual assessment. 18 & Members of Vestry of St. Bartholomew s Church v. City of New 19 York, 914 F.2d 348, 354-56 (2d Cir. 1990). Rector, Wardens, 20 We need not resolve here whether zoning variance decisions 21 challenged under the Free Exercise Clause are subject to strict 22 scrutiny or rational basis review because we conclude that on the 23 record before us there was no rational basis for the Town s 24 1 actions. The district court s holding was premised on its 2 finding that the Town had acted in bad faith and disingenuously 3 misused the SEQRA process to block the Church s project. 4 district court found as a factual matter that the reasons offered 5 by the Town for delaying and denying the project were pretextual 6 and concluded that the Town s witnesses were not credible. 7 Fortress Bible Church, 734 F. Supp. 2d at 491-94 (providing a 8 mere sampling of examples of non-credible testimony by Town 9 witnesses), 505-08 (explaining how each of the Town s stated The See 10 reasons was pretextual). 11 There is no basis to distrust the district court s finding that 12 the Town s proffered rational bases were not sincere and that it 13 was instead motivated solely by hostility toward the Church qua 14 church. 15 basis for delaying and denying the Church s project and therefore 16 violated the Church s Free Exercise rights.9 17 The record supports this conclusion. Accordingly, we conclude that the Town lacked a rational The Town also presses the argument that the Free Exercise 18 Clause is inapplicable to land use regulations. 19 decisions from several circuits holding that religious 9 It points to Appellants also challenge the district court s conclusion that they violated the parallel Free Exercise Clause in the New York Constitution. Under that clause, courts employ a balancing test to determine if the interference with religious exercise was unreasonable. Catholic Charities of Diocese of Albany v. Serio, 7 N.Y.3d 510, 525 (2006). For the reasons stated above, we conclude that the Town s interference with the Church s project was not reasonable and violated the New York Constitution. 25 1 institutions do not have a constitutional right to build wherever 2 they like. 3 City of Long Branch, 510 F.3d 253, 273-74 (3d Cir. 2007); 4 Lakewood, Ohio Congregation of Jehovah s Witnesses, Inc. v. City 5 of Lakewood, 699 F.2d 303, 306-07 (6th Cir. 1983). 6 cited by the Town are inapposite. 7 building was directly barred by town ordinance and the religious 8 institution sought individual relief from the general rule. 9 burden in this case resulted from the Town s disingenuous bad 10 faith efforts to stall and frustrate this particular Church s 11 construction plan, which was not itself barred by the Town s 12 zoning code. 13 Church, and the Church was forced to remain in an inadequate 14 facility for its duration. 15 See, e.g., Lighthouse Inst. for Evangelism, Inc. v. The cases In those cases, the proposed The The lengthy SEQRA review process was costly to the For these reasons, we affirm the district court s holding 16 that the Town violated the Church s First Amendment right to the 17 free exercise of religion. 18 19 20 Equal Protection The Town argues on appeal that the district court erred in 21 finding a violation of the Fourteenth Amendment s Equal 22 Protection Clause because the Church s class-of-one theory is 23 barred by Engquist v. Ore. Dep t of Agric., 553 U.S. 591 (2008), 26 1 and because the Church has not provided a single comparator 2 situated similarly to it in all respects. 3 The Equal Protection Clause has traditionally been applied 4 to governmental classifications that treat certain groups of 5 citizens differently than others. 6 Willowbrook v. Olech, 528 U.S. 562, 564 (2000), however, the 7 Supreme Court affirmed the existence of a class-of-one theory for 8 equal protection claims, under which a single individual can 9 claim a violation of her Equal Protection rights based on Id. at 601. In Village of 10 arbitrary disparate treatment. 11 to connect her property to the municipal water supply. 12 village had required a 15-foot easement from other property 13 owners who had sought to connect to the water supply, but 14 demanded a 33-foot easement from Olech. 15 recognized an Equal Protection claim where the plaintiff alleges 16 that she has been intentionally treated differently from others 17 similarly situated and that there is no rational basis for the 18 difference in treatment. 19 In Olech, a property owner sought The The Supreme Court Id. at 564. Eight years later, in Engquist, the Court clarified that a 20 class-of-one claim is not available in the public employment 21 context. 22 status in that context as a proprietor rather than a sovereign, 23 and the corresponding decrease in constitutional protections for It based its holding primarily on the government s 27 1 its employees. 2 that certain governmental functions that involve discretionary 3 decisionmaking are not suitable for class-of-one claims. 4 603-04. 5 553 U.S. at 598-99, 605-09. The Court also noted Id. at We have since held that Engquist does not bar all class-of- 6 one claims involving discretionary state action. 7 Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135 (2d Cir. 2010), we 8 recognized a class-of-one claim in the context of a state system 9 for issuing clinical testing laboratory permits. In Analytical We noted that 10 the state was acting as a sovereign rather than a proprieter, and 11 further observed that the licensing panel did not have complete 12 discretion because it operated within a regulatory framework, 13 held a mandatory hearing, and its decision could be challenged 14 under New York Civil Procedure Law Article 78. 15 Like Analytical Diagnostic Labs, this case presents a clear 16 standard against which departures can be easily assessed. See 17 Engquist, 553 U.S. at 602-03. 18 by regulation and the result can be challenged under Article 78. 19 Additionally, the Town was acting in its regulatory capacity as a 20 sovereign rather than as a proprieter; it was making decisions 21 about the ways in which property owners could use their land. 22 The evidence provided by the Church illustrates a disparity in The SEQRA review process is guided 28 1 treatment that cannot fairly be attributed to discretion. 2 class-of-one claim is thus cognizable in this context. 3 A The Town argues that, even if a class-of-one claim is 4 viable, the Church s evidence was not sufficient to establish 5 such a claim because it did not provide a single comparator 6 similarly situated in all respects, but instead presented 7 evidence of multiple projects that were each treated differently 8 with regard to a discrete issue. 9 one claim requires a plaintiff to show an extremely high degree We have held that a class-of- 10 of similarity between itself and its comparators. 11 Bd. for Skaneateles, 610 F.3d 55, 59-60 (2d Cir. 2010). 12 Church must establish that (i) no rational person could regard 13 the circumstances of the plaintiff to differ from those of a 14 comparator to a degree that would justify the differential 15 treatment on the basis of a legitimate government policy; and 16 (ii) the similarity in circumstances and difference in treatment 17 are sufficient to exclude the possibility that the defendants 18 acted on the basis of a mistake. 19 omitted). 20 Ruston v. Town The Id. at 60 (quotation marks The Church s use of multiple comparators is unusual, and 21 presents us with a matter of first impression. 22 however, that the Church s evidence of several other projects 23 treated differently with regard to discrete issues is sufficient 29 We conclude, 1 in this case to support a class-of-one claim. The purpose of 2 requiring sufficient similarity is to make sure that no 3 legitimate factor could explain the disparate treatment. 4 Neilson v. D Angelis, 409 F.3d 100, 105 (2d Cir. 2005) (noting 5 that purpose of comparator requirement is to provide an 6 inference that the plaintiff was intentionally singled out for 7 reasons that so lack any reasonable nexus with a legitimate 8 governmental policy that an improper purpose . . . is all but 9 certain ), overruled on other grounds, Appel v. Spiridon, 531 See 10 F.3d 138, 139-40 (2d Cir. 2008). 11 compared are discrete and not cumulative or affected by the 12 character of the project as a whole, multiple comparators are 13 sufficient so long as the issues being compared are so similar 14 that differential treatment with regard to them cannot be 15 explained by anything other than discrimination. 16 that there is sufficient evidence in the record to support the 17 Church s class-of-one claim. 18 Where, as here, the issues We conclude The principal reasons for denying the Church s application 19 cited in the Town s FEIS were violation of a recently enacted 20 steep slope zoning ordinance, stress on the police and fire 21 departments, retaining walls that constituted an attractive 22 nuisance, and traffic and parking problems. 23 Hackley School, located in a mixed-use neighborhood, to double 30 A proposal by the 1 its size, involved the same steep slope concerns as the Church s 2 proposal. 3 almost three years after the Church s proposal, and at that time, 4 the Town had yet to enact its steep slope ordinance. 5 considering the ordinance, the Town ordered a moratorium on steep 6 slope construction. 7 this moratorium, however, and then expedited review of the 8 proposal so that it was approved prior to adoption of the steep 9 slope ordinance. The Hackley School proposal was submitted in 2001, While It issued the Hackley School a waiver from Despite the fact that the Church s proposal was 10 submitted years earlier than the Hackley School s, the Town cited 11 the Church s failure to comply with the steep slope ordinance as 12 a basis for denying its proposal and never provided it with a 13 waiver or the option of expedited consideration. 14 The Hackley School proposal also involved retaining walls 15 comparable to those proposed by the Church. 16 did not raise retaining walls as a concern with the Hackley 17 School s application, it relied on the Church s proposed 18 retaining walls as a basis for denying the Church s application, 19 and did so even after the Church had offered to construct a fence 20 on top of its walls to eliminate any danger. 21 Although the Town Proposals by Union Baptist Church and the Solomon Schechter 22 School both failed to provide the amount of parking required by 23 Town ordinance. In both instances, however, the Town 31 1 accommodated the proposals by allowing the use of on-street 2 parking and approved the projects without requiring the mandated 3 number of spaces. 4 number of spaces, but the Town still cited parking concerns as a 5 reason for denying it and failed to offer any accommodation. 6 Finally, the Town s primary stated reason for issuing a The Church s proposal contained the required 7 positive declaration was increased traffic. However, a proposal 8 by LDC Properties, Inc., to build a commercial office building 9 near the same major intersection as the Church s proposal ( the 10 LOSCO proposal ) received a conditioned negative declaration even 11 though, according to the Town s own traffic consultant, it raised 12 the same traffic concerns as the Church s proposal.10 13 did not require the LOSCO proposers to take any steps to mitigate 14 these traffic concerns. 15 proposal was located close to the Pomander Drive property and 16 created similar vehicle and pedestrian traffic concerns. The Town Similarly, the Solomon Schechter School 10 The In fact, the Town appears to have been acutely aware of the overlapping traffic issues. The Deputy Town Attorney advised the Town Planning Commissioner that because of the comparisons that may be drawn between the Church and LOSCO, please be careful and conscious of potential issues in drafting . . . the determination of significance. . . . Remember that they have the same traffic consultant and be wary. Fortress Bible Church, 734 F. Supp. 2d at 476. 32 1 Town approved this application without requiring any steps from 2 the applicant to mitigate traffic.11 3 In short, the Church has presented overwhelming evidence 4 that its application was singled out by the Town for disparate 5 treatment. 6 features unique to that proposal, the Town has not explained how 7 those other features could have influenced discrete issues like 8 the adequacy of parking, the safety of retaining walls, or 9 increased traffic. Though each of the comparator projects involved We recognize that, where multiple reasons are 10 cited in support of a state actor s decision, it will usually be 11 difficult to establish a class-of-one claim. 12 here, a decision is based on several discrete concerns, and a 13 claimant presents evidence that comparators were treated 14 differently with regard to those specific concerns without any 15 plausible explanation for the disparity, such a claim can 16 succeed. 17 evidence demonstrates that the government s stated concerns were 18 pretextual. 19 Church has adequately established a class-of-one Equal Protection 20 claim. 11 However, where, as Further, such a claim is bolstered where, as here, the We affirm the district court s conclusion that the Additionally, for both LOSCO and the Solomon Schechter School, the Town analyzed the impact on traffic under the assumption that the Church s proposal had already been completed and was generating traffic. Yet it still approved the proposals without requiring any traffic mitigation. 33 1 2 Article 78 Under Article 78 of New York s Civil Procedure Law, a town s 3 SEQRA determination may be set aside when it is arbitrary, 4 capricious or unsupported by the evidence. 5 Planning Bd. of Southeast, 9 N.Y.3d 219, 232 (2007). 6 district court held that the Town s determination was not 7 supported by substantial evidence because the Town s stated 8 concerns were either unsupported or wholly fabricated. 9 Fortress Bible Church, 734 F. Supp. 2d at 519. Riverkeeper, Inc. v. The The Town contends 10 that its findings were rationally based on the findings of its 11 traffic consultant, and that the district court s decision was 12 therefore in error. 13 As we have previously discussed, the record contains ample 14 evidence to support the district court s conclusion that the 15 Town s actions were wholly disingenuous. 16 identify no error with the district court s decision to set aside 17 the Town s SEQRA determination. Accordingly, we 18 19 20 The District Court s Injunction Finally, the Town argues that the district court abused its 21 discretion in crafting its injunction because it was not 22 permitted to enjoin governmental determinations that have not 23 yet been made, Appellant s Br. at 37, and because it had no 34 1 authority to bind the Zoning Board, which was not a party to the 2 litigation. 3 We review a district court s grant of injunctive relief for 4 abuse of discretion. See Etuk v. Slattery, 936 F.2d 1433, 1443 5 (2d Cir. 1991). 6 framing an injunction. 7 ordered that the Church s 2000 site plan be deemed approved for 8 SEQRA purposes and enjoined any further SEQRA review; (2) ordered 9 the Board to grant the Church a waiver from the landscaped A district court has substantial freedom in Id. The district court s injunction: (1) 10 parking island requirement; (3) ordered the Zoning Board to grant 11 a variance permitting a side building location; (4) ordered the 12 Town to issue a building permit for the 2000 site plan; and (5) 13 enjoined the Town from taking any action that unreasonably 14 interferes with the Church s project. 15 With regard to its first argument, the Town relies on 16 Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010). 17 Geertson involved a suit against the Animal and Plant Health 18 Inspection Service ( APHIS ). 19 deregulate a certain species of genetically modified alfalfa. 20 The district court enjoined APHIS from fully deregulating the 21 alfalfa, and further issued an injunction preemptively barring 22 APHIS from implementing any partial deregulation plan. 23 Supreme Court held that the latter portion of the injunction was APHIS had decided to completely 35 The 1 an abuse of the district court s discretion because the 2 plaintiffs could file a new suit if APHIS actually attempted 3 partial deregulation and there was no evidence that partial 4 deregulation would cause the same irreparable harm as full 5 deregulation. Id. at 2760-61. 6 present case. The district court s injunction was specifically 7 tailored to the injury the Church had suffered and did not exceed 8 the district court s discretion. Geertson has no bearing on the 9 The Town also argues that the portion of the injunction 10 compelling the Zoning Board to grant a variance permitting a side 11 building location exceeded the district court s authority 12 because, under New York law, the Zoning Board is a separate 13 entity from the Town over which the district court had no 14 jurisdiction. 15 (1984) (town board has no authority to bind the town s zoning 16 board to a consent decree to which the zoning board was not a 17 party). 18 Town did not raise this objection before the district court and 19 has therefore waived it on appeal. 20 Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008). See Commco, Inc. v. Amelkin, 62 N.Y.2d 260, 265-68 We need not reach this question, however, because the 21 22 23 36 See In re Nortel Networks 1 CONCLUSION 2 For the reasons described above, the Town s arguments on 3 appeal are without merit and we conclude that the relief ordered 4 by the district court was within its discretion. 5 the district court is AFFIRMED. 37 The judgment of
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