FORTRESS BIBLE CHURCH v. FEINER

ancial assistance, even if the burden results from a rule of general applicability;

(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or

(C) 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 government to make, individualized assessments of the proposed uses for the property involved.

42 U.S.C. § 2000cc(a)(2).

Plaintiffs contend that they have established jurisdictional prerequisites pursuant to 42 U.S.C. §§ 2000cc(a)(2)(B) and (C). Defendants argue that Plaintiffs have not established either prerequisite because the evidence adduced at trial does not demonstrate that interstate commerce would be affected and because the SEQRA review was not conducted pursuant to a land use regulation within the meaning of RLUIPA. See Def. Post-Trial Mem. at Proposed Conclusion of Law ¶¶ 1-18, 171-75. The Court finds that Plaintiffs have established both prerequisites.

Plaintiffs have proven that the development of, eventual operation of, and eventual activities to be performed at the Pomander Drive property will affect interstate commerce. See 42 U.S.C. § 2000cc(a)(2)(B). For example, Plaintiffs have demonstrated that construction of the Fortress Bible Church project will affect interstate commerce, such as through use of architects located in North Dakota. Numerous courts, as well as Congress, have recognized that construction projects often impact interstate commerce. See Reich v. Mashantucket Sand Gravel, 95 F.3d 174, 181 (2d Cir. 1996) ("construction efforts . . . have a direct effect on interstate commerce"); Westchester Day School v. Village of Mamaroneck (" Westchester Day School VI"), 417 F.Supp.2d 477, 541 (S.D.N.Y. 2006); Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1221 (C.D.Cal. 2002) ("construction of the church will affect a large quantity of construction workers, construction materials, transportation vehicles and commercial financial transactions, all of which affect commerce"); 146 CONG. REC. S7774-01, S7775 (July 27, 2000) (impact on interstate commerce "will most commonly be proved by showing that the burden prevents a specific economic transaction in commerce, such as a construction project."). In addition, Plaintiffs have established that the activities at the Pomander Drive property will include the Church's continued support of missionary efforts both in the United States and abroad, thereby affecting interstate and international commerce.

Plaintiffs have also demonstrated that the Town Board's SEQRA review and determination involved "a land use regulation or system of land use regulations . . . that permit the government to make[] individualized assessments." 42 U.S.C. § 2000cc(a)(2)(C). Defendants argue that SEQRA is not a land use regulation as contemplated under RLUIPA, but rather a statewide regulatory framework that includes procedural requirements and criteria to determine whether a proposed action may have a significant adverse environmental impact. See Def. Post-Trial Mem. at Proposed Conclusion of Law ¶ 5 ( citing 6 N.Y.C.R.R. § 617.1(e)). According to Defendants, their actions in reviewing the environmental impacts associated with the Fortress Bible Church project, accepting the December 2003 FEIS as complete, and adopting the SEQRA resolution, were not made pursuant to any land use regulation. See id. ¶¶ 6-10. This Court disagrees. RLUIPA defines land use regulation as a zoning or landmarking law, or the application of such law that limits or restricts a claimant's use or development of land. See 42 U.S.C. § 2000cc-5(5). It is beyond cavil that the application of SEQRA can limit or restrict a claimant's use or development of land — indeed, it is exactly because application of SEQRA restricted Plaintiffs' use and development of the Pomander Drive property that the instant litigation arose. That SEQRA is drafted in terms of providing a "framework" does not negate its ultimate consequences.

Defendants further argue that the SEQRA review did not constitute an individualized assessment. See Def. Post-Trial Mem. at Proposed Conclusion of Law ¶¶ 147 n. 61. Again, the Court disagrees. "[T]he determination of whether the governmental action is an individualized assessment depends on whether the decision was subjective in nature." Westchester Day School VI, 417 F.Supp.2d at 541-42 (internal quotations and citations omitted). Where the law at issue is a neutral one of general applicability, its application to particular facts can constitute an individualized assessment, particularly where "the application does not involve a mere numerical or mechanistic assessment, but one involving criteria that are at least partially subjective." Id. In evaluating RLUIPA claims, courts have repeatedly found that special use permit and variance applications depend on individualized assessments. See, e.g., Living Water Church of God v. Charter Township of Meridian, 384 F.Supp.2d 1123, 1130-31 (W.D. Mich. 2005), rev'd on other grounds, 258 Fed App'x 729 (6th Cir. 2007) (denial of special use permit where determination based on criteria that were, in part, subjective considered an "individualized assessment"); Castle Hills First Baptist Church v. City of Castle Hills, 2004 WL 546792, at *15 (W.D. Tex. Mar. 17, 2004) ("Zoning, and the special use permit application process specifically, inherently depend upon a system of individualized assessment."); Guru Nanak Sikh Society of Yuba City v. County of Sutter, 326 F.Supp.2d 1140, 1160 n. 10 (E.D. Cal. 2003), aff'd, 456 F.3d 978 (9th Cir. 2006) ("It is . . . beyond cavil that zoning decisions such as the [conditional use permit application] at issue in this case are properly described as `individualized assessments.'"); Cottonwood, 218 F.Supp.2d at 1222 (denial of conditional use permit constitutes "individualized assessment"). The application process at issue was similarly individualized. The Town had no mechanistic

assessments in place for evaluating the Church's application, but rather relied on the subjective opinions of nonprofessional Town Board members and a multitude of consultants — many of whom offered opinions inconsistent with those that they had previously provided to the Town — regarding whether they considered the Church's proposed plan and mitigation measures to be adequate. Further, the significant evidence indicating that the Church's application was treated differently from other comparable applications itself demonstrates that the Town's assessment was individualized.

2. Religious Exercise

RLUIPA broadly defines "religious exercise" as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief," including "[t]he use, building, or conversion of real property for the purpose of religious exercise." 42 U.S.C. § 2000cc-5(7)(A). That is, RLUIPA does not protect buildings or structures per se, but rather protects their use for the purpose of religious exercise. See 42 U.S.C. § 2000cc-5(7)(B); see also Guru Nanak, 326 F.Supp.2d at 1151. Thus, the Second Circuit has observed that "not every activity carried out by a religious entity or individual constitutes a `religious exercise.'" Westchester Day School v. Village of Mamaroneck (" Westchester Day School III"), 386 F.3d 183, 190 n. 4 (2d Cir. 2004) ( quoting 146 CONG. REC. S7774-01, S7776 (July 27, 2000)). Instead, RLUIPA requires inquiring "whether the facilities to be constructed [are] to be devoted to a religious purpose." Id. at 189. Such religious purpose need not implicate "core religious practice," Guru Nanak, 326 F.Supp.2d at 1151, or "an integral part of one's faith," Living Water, 384 F.Supp.2d at 1129.

While the Second Circuit has not clarified the meaning of "devoted," courts within the Circuit have interpreted it to require a "careful, fact-sensitive balancing of secular purposes and religious purposes in relation to the spaces being constructed, as opposed to a strict requirement of exclusive use for religious purposes, which would be inconsistent with the text and legislative history of RLUIPA." Westchester Day School VI, 417 F.Supp.2d at 544. Accordingly, courts have held that "[w]here a building is to be used for the purpose of `religious exercise,' the building is not denied protection under RLUIPA merely because it includes certain facilities that are not at all times themselves devoted to, but are inextricably integrated with and reasonably necessary to facilitate, such `religious exercise.'" Id.; see also Living Water, 384 F.Supp.2d at 1133 (holding, after bench trial, that the plaintiff's proposed use of building including classrooms, sanctuary, gymnasium, offices and meeting rooms for a religiously oriented school and other ministries of the church constituted religious exercise). At the same time, RLUIPA "cannot be so broad as to protect any construction plan merely because an institution pursues a religious mission." Westchester Day School VI, 417 F.Supp.2d at 543.

The evidence presented at trial established that Plaintiffs' proposed use of the Pomander Drive property, including the operation of the school, will be devoted to religious purposes. Plaintiffs' proposed facility is a single structure that will house both the church and school and will include a sanctuary, offices, library, kitchen, classrooms, and a gymnasium. The proposed facility will host prayer, religious ceremonies, fellowships, visiting ministries, religious education, and other religious activities. For example, the sanctuary will be used for, inter alia, performing Baptisms and alter calls. Reverend Karaman testified regarding the religious significance of these activities to the Church and its congregants. Also, a pre-existing single-family house on the Pomander Drive property will be used as the parsonage for the Church.

The school, Fortress Christian Academy, likewise will be devoted to religious purposes. The school is dedicated to teaching the Bible and Christian values. Students pledge allegiance not only to the flag of the United States, but also to the Christian flag and to the Bible. The Bible is fully integrated into the school's curriculum, including both academic and physical education. Defendants contend that the teaching of religious education in classrooms and auxiliary rooms that are also used for the education of students in wholly secular subjects does not rise to the level of devotion required to establish religious exercise. This Court, however, credits Reverend Karaman's testimony that the Bible is integrated into all secular subjects taught at the school, including mathematics, history, science, and art. Reverend Karaman also testified that the proposed gymnasium will be used, in addition to teaching physical education, among other purposes, to host youth meetings and fellowships. Further, religious education and discipling are important aspects of the Church's religious principles.

Mindful that the Second Circuit has cautioned district courts to "consider whether the proposed facilities [are] for a religious purpose rather than simply whether the school [is] religiously-affiliated," the Court has no hesitation finding that the proposed facility has religious purpose and will enable Church members to engage in religious exercise. See Westchester Day School v. Village of Mamaroneck (" Westchester Day School VII"), 504 F.3d 338, 348 (2d Cir. 2007) (The line where a school construction project implicates RLUIPA "exists somewhere between this case, where every classroom being constructed will be used at some time for religious education, and a case like the building of a headmaster's residence, where religious education will not occur in the proposed expansion.); see also Living Water, 384 F.Supp.2d at 1129-30 (holding, after bench trial, that "Plaintiff's use of the proposed facility for a religious oriented school and for other ministries of the church constitutes religious exercise."); Castle Hills, 2004 WL 546792, at *8 (denial of special use permit application "to allow the use of existing fourth floor space for classrooms" for private Christian school constituted RLUIPA violation). Even if certain of the school's activities are considered to be secular, as Defendants

argue they are, given the substantial evidence regarding the intended religious uses for the facility, this Court does not believe that such limited secular activities would be sufficient to bar a finding of religious exercise. See Westchester Day School VI, 417 F.Supp.2d at 544 ("We do not read the Second Circuit's expressed concerns to bar a finding of religious exercise where facilities are used for both religious and secular purposes."). A significant portion of Plaintiffs' proposed facilities will be devoted to religious practice and education or are inextricably integrated with the Church's ability to provide religious education and practice — i.e. to engage in religious exercise. See Westchester Day School VI, 417 F.Supp.2d at 545-46 (where certain aspects of the religious school facility would not be devoted exclusively to religious education and practice, the plaintiff had nonetheless demonstrated religious exercise because the "major portion of the proposed facilities will be used for religious education and practice or are inextricably integrated with, and necessary for [the school's] ability to provide, religious education and practice"). Accordingly, this Court concludes that Plaintiffs' use of the proposed facility constitutes religious exercise within the meaning of RLUIPA.

3. Substantial Burden

RLUIPA purposely does not define "substantial burden." Rather, the legislative history indicates that Congress intended the term substantial burden to be interpreted "by reference to Supreme Court jurisprudence." Westchester Day School VII, 504 F.3d at 348 ( citing 146 Cong. Rec. S7774, S7776 (2000)). Under Supreme Court precedents, "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." Id. ( citing Sherbert v. Verner, 374 U.S. 398, 404 (1963)). In the context of land use applications, however, "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 than government action that forces the religious entity to choose between religious precepts and governmental benefits." Id. at 349 In evaluating whether Plaintiffs' religious exercise has been substantially burdened, the Court must evaluate both the nature of the denial and the effect of the denial on the religious institution. Id. The Second Circuit has also considered relevant when a court finds that denial of an application was "arbitrary and capricious under New York law." Id. at 351.

Here, Plaintiffs claim that the denial of their application in effect coerced the Church and Reverend Karaman to continue their religious practice in inadequate facilities, thereby impeding its religious exercise.

a. Nature of the Denial

In evaluating the nature of the denial, the Second Circuit has explained that:

[R]ejection 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. 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. However, in most cases, whether the denial of the application was absolute is important; if there is a reasonable opportunity for the institution to submit a modified application, the denial does not place substantial pressure on it to change its behavior and thus does not constitute a substantial burden on the free exercise of religion.

Westchester Day School VII, 504 F.3d at 349 (quotations and citations omitted).

Defendants contend that their denial of the Fortress Bible Church application was not complete because Plaintiffs could have submitted a modified proposal that mitigated the environmental impacts of the project delineated in the December 2003 FEIS and SEQRA Resolution. Defendants argue that the evidence at trial indicated that they were willing to consider and encouraged the Church to submit a modified plan addressing the Town's concerns regarding safety and traffic, specifically, a scaled down proposal. Defendants further claim that because a modified plan, such as a scaled down proposal, could be approved by the Town Board and satisfy the Church's needs, Plaintiffs cannot demonstrate a substantial burden.

This Court finds Defendants' purported willingness to consider a modified plan to be wholly disingenuous. As more fully described in the Findings of Fact, Plaintiffs submitted revised proposals and additional information to Defendants on numerous occasions. Defendants' response on each occasion was to request more information, often requesting information that they already possessed. The evidence at trial establishes that Plaintiffs agreed to implement, at their own expense, every mitigation measure requested by Defendants. Such measures included widening Dobbs Ferry Road near the location of the Church's proposed access driveway, creating a left turn lane into the Pomander Drive property, installing a traffic signal at the driveway entrance, and coordinating the proposed traffic signal with existing traffic signals to facilitate the flow of traffic. Notwithstanding these proposed measures, Defendants' Findings Statement — which contains numerous errors of which Town Board members were aware, but failed to correct — states that no mitigation is possible. In making such a finding, Defendants ignored feedback from their own consultants that the project's potential environmental impacts could be mitigated.

While the Town's past treatment of the Church's application strongly suggests that the Town would not act in good faith in considering a modified proposal, the Court need look no further than the admissions of Town Board members themselves to be certain that the Town would not act in good faith. First, Supervisor Feiner admitted that he instructed Town staff, including the Town Attorney and the Town's consultants, to identify ways in which the Town Board could vote against the Church's proposal in light of RLUIPA. Second, Councilwoman Weinberg instructed Town Planning Commissioner Russo to "kill the project" on more than one occasion, with the first time dating back to as early as 2000. Councilwoman Juettner expressed her emphatic agreement with that directive. Third, Deputy Town Attorney Insardi admitted that Defendants had identified the outcome that they wished to achieve and prepared the FEIS in a manner to support that outcome.

The evidence at trial established that the Town, in fact, did act to "kill the project." For example, Defendants deleted from the FEIS specific mitigation measures offered by the Church, such as the use of traffic monitors, traffic cones, valet parking, use of Pomander Drive as an alternative point of access/egress, and coordinating services with surrounding religious and educational entities to reduce traffic impacts. Defendants also omitted from the FEIS Plaintiffs' proposed installation of a fence upon certain retaining walls, a safety measure which was suggested by the Town's engineering consultant and approved by the Town's building inspector. In addition, in a draft memorandum dated October 17, 2002, from Turner to the Town, Deputy Town Attorney Insardi eliminated language by which Town Planning Consultant Turner stated his willingness to meet with the Church.

Given the overwhelming evidence of Defendants' intentional delay, hostility, and bias toward the Church's application, the Court finds that any purported willingness by the Town Board to consider a modified proposal is insincere. Under such circumstances, the Church is not required to file a modified application and the Court finds that the Church's religious exercise was substantially burdened by the Town's arbitrary and unlawful denial of its application. See Westchester Day School VII, 504 F.3d at 352-53.

b. Effect of the Denial

Even if the denial is definitive, "[t]here 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." Westchester Day School VII, 504 F.3d at 349. However, because "the Supreme Court's free exercise jurisprudence signals caution in using effect alone to determine substantial burden," it typically is not sufficient to show that a religious institution has been prevented from building a church on its own land. Id. at 349. A substantial burden claim may be established, though, "where land use restrictions are imposed on the religious institution arbitrarily, capriciously, or unlawfully." Id. at 350 ; see also Sts. Constantine and Helen, 396 F.3d at 899-901 (substantial burden was demonstrated in circumstances where the "decision maker cannot justify" the challenged ruling); Guru Nanak Sikh, 456 F.3d 978, 989-91 (9th Cir. 2006) (substantial burden was demonstrated where government officials "inconsistently applied" specific policies and disregarded relevant findings "without explanation"). Where such a claim is established, the Second Circuit has directed courts to also consider "(1) whether there are quick, reliable, and financially feasible alternatives [that the religious institution] may utilize to meet its religious needs absent its obtaining the construction permit; and (2) whether the denial was conditional." Westchester Day School VII, 504 F.3d at 352. The Second Circuit explained that "when an institution has a ready alternative — be it an entirely different plan to meet the same needs or the opportunity to try again in line with a zoning board's recommendations — its religious exercise has not been substantially burdened." Id. The plaintiff has the burden of persuasion with respect to all of these factors. See 42 U.S.C. § 2000cc-2.

A close nexus exists between the Town denying the Church's application to construct its new facility and the Church's religious exercise. This Court credits Reverend Karaman's testimony regarding the ways in which the limitations of the Church's current facility have impeded his and his congregants' religious practice. Reverend Karaman testified that the inadequacies of the current facility have prevented the Church from performing tasks that it believes are mandated by God, including expanding the Church's membership and discipling to more members. Reverend Karaman also testified that the size limitations of the current facility have impeded the Church's ability to perform certain religious practices, to host visiting missionaries, and to teach certain subjects and accommodate handicapped students in its school. Thus, the Church's lack of adequate space is significantly curtailing its religious activities and preventing Plaintiffs from fulfilling their religious mandate. By precluding the construction of a much needed facility, Defendants significantly interfered with the Church's ability to exercise its religion. See, e.g., Cottonwood, 218 F.Supp.2d at 1212 (substantial burden may exist where, inter alia, the "physical constraints of its current facility also limit [plaintiff's] ability to conduct many of its different programs" and "to conduct outreach to potential new members").

That the Church was prevented from building a new facility on the Pomander Drive property does not itself establish a substantial burden under RLUIPA. Nor does this Court's finding, set forth below at Part IV.d.ii, that Defendants imposed land use restrictions unlawfully, in violation of New York law. Such a finding does, however, lend support to Plaintiffs' substantial burden claim. See Westchester Day School VII, 504 F.3d at 351.

Having found a close nexus and that the land use restriction was imposed arbitrarily, capriciously, or unlawfully, the Court next considers whether there are "quick, reliable, and financially feasible alternatives" that the Church may use and whether the Town's denial was conditional. Defendants have conceded that the current Church facility is inadequate. Nevertheless, Defendants argue that Fortress Bible Church's students, faculty, and congregants are able to practice their religious beliefs at their current facility in Mount Vernon or in a smaller facility on the Pomander Drive property. Defendants claim that the size of the congregation and the student enrollment are accommodated in the Church's current facility and could likewise be accommodated in a smaller facility on the Pomander Drive property. They further argue that limitations in the current facility can be alleviated through means other than construction of the Church's proposed facility. For example, Defendants claim that the inability to perform baptisms in the winter can be alleviated through means other than construction of the Church's proposed facility, even if it is "inconvenient."

This Court rejects Defendants' argument that alternatives exist such that the Town's denial of the application does not constitute a substantial burden. As discussed above, this Court has already found that the Church's current facility is inadequate to enable the Church to engage in religious exercise. Given the nature of the inadequacies, this Court does not find that remaining in the Church's current facility constitutes a satisfactory alternative. The current facility's limitations are more than mere "inconvenienc[es]," as Defendants have characterized them. Nor does the possibility of the Church submitting a proposal for a smaller facility on the Pomander Drive property constitute a satisfactory alternative. As discussed above, the Court has already found that any purported willingness by the Town to consider a proposal by the Church for a smaller facility is disingenuous. However, even if the Court had any confidence that the Town would fairly consider such an application, the application would be subject to the Town's lengthy review process and all of the economic hardships the process entails. Such a process cannot be considered "quick, reliable, and financially feasible." See Westchester Day School VII, 504 F.3d at 352 ("[W]ere WDS to prepare a modified proposal, it would have to begin the application process anew.). For the same reason that submitting a scaled down proposal does not constitute a satisfactory alternative — i.e. that the Town's purported willingness to consider such an application is disingenuous — the Court does not consider the Town's denial to be conditional. See Westchester Day School VII, 504 F.3d at 352 (one factor courts should consider in examining whether denial of an application was conditional is whether the Town's "stated willingness to consider a modified proposal was disingenuous").

Thus, Plaintiffs have satisfied their burden of demonstrating that Defendants' denial of Fortress Bible Church's land use application imposes a substantial burden on Plaintiffs' religious exercise. Because this Court finds that Defendants' denial of Fortress Bible Church's land use application imposes a substantial burden on Plaintiffs' religious exercise, the burden shifts to Defendants to prove that denial of the application was (i) necessary to further a compelling governmental interest, and (ii) the least restrictive means of furthering that compelling interest. See 42 U.S.C. § 2000cc(a)(1); 42 U.S.C. § 2000cc-2(b); Westchester Day School III, 386 F.3d at 186, 190; Murphy, 148 F.Supp.2d at 187; Guru Nanak, 326 F.Supp.2d at 1154.

4. Compelling Government Interest

The Second Circuit has not previously considered what constitutes a compelling governmental interest under RLUIPA, and has held only that such interests are "interests of the highest order. See Jova v. Smith, 582 F.3d 410, 415 (2d Cir. 2009). The Supreme Court, however, has observed that compelling governmental interests are those that protect public health, safety, or welfare. See Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."); Sherbert, 374 U.S. at 406 ("[I]n this highly sensitive constitutional area, `only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.'"). The compelling interest standard is the "most demanding test known to constitutional law." City of Boerne v. Flores, 521 U.S. 507, 534 (1997).

Defendants contend that, in denying the SEQRA application, the Town acted to protect the health, safety, and welfare of Town residents because the plan: (i) creates unsafe traffic conditions in and around the property; (ii) contains inadequate parking; (iii) fails to comply with Town Code steep slope requirements; (iv) creates a public nuisance which endangers the safety of children; (v) poses adverse impacts to the Town's police and fire resources; (vi) created concerns among the project's neighbors. Plaintiffs argue that Defendants have not established that these were "compelling governmental interests" sufficient to justify the Town's denial of the application.

As described below, this Court finds that Defendants have not demonstrated any compelling governmental interests sufficient to justify the Town's denial of the Church's SEQRA application. To the contrary, the evidence presented at trial established that Defendants' purported concerns were contrived for the sole purpose of rationalizing the Town's denial of the SEQRA application.

a. Traffic

The Findings Statement adopted by the Town states that "The Lead Agency Finds that presently there is no means to mitigate the adverse traffic impacts associated with the proposed project." Evidence at trial indicated that this statement was wholly unsupported. First, the Town's Findings Statement attributes a number of concerns to Police Chief Kapica and Fire Fire Chief Mauro. However, neither Chief Kapica nor Chief Mauro were provided with an opportunity to review or to comment upon the conclusions attributed to them in the Findings

Statement. In fact, both reached conclusions that contradicted those attributed to them. At trial, Police Chief Kapica testified that he disagreed with the Town's conclusion that it was impossible to adequately mitigate traffic impacts associated with the Fortress Bible Church project. Fire Chief Mauro testified he had some concerns about traffic generated by the school during weekdays, however, he admitted that he had not reviewed any of the traffic impact studies regarding that traffic or the mitigation measures proposed by the Church, and therefore could not accurately assess the impacts of the project. Second, the Town approved two other land use projects in close geographic proximity to the Church, thereby belying the Town's purported traffic concerns. That the Town's traffic concerns were exaggerated — if not completely fabricated — is indicated by the Town's approval of the LOSCO project without requiring LOSCO to perform any of the traffic mitigation measures that it had required of the Church. Notably, the LOSCO application contained traffic analyses that assumed that the Fortress Bible Church project had already been constructed. That is, the Town approved the LOSCO project assuming that additional traffic would be generated by both LOSCO and the Church, but not requiring LOSCO to perform any traffic mitigation. Third, the Town's own planning commissioner, Russo, believed, as early as October 2001, that the Church "had a good traffic mitigation plan" and was "going to provide the proper mitigation to offset their impact." Fourth, Town Traffic Consultant Maris manipulated the traffic analysis included in the Town's FEIS, such that it reflected longer traffic queues and delays at the intersection of the project site than would otherwise be expected. In fact, the Church's traffic consultant performed a traffic analysis indicating that, under the Church's proposal for an actuated traffic light, delays would not increase following construction of the Church's proposed facility. At trial, Maris admitted that he had changed the Town's proposal, even though he believed that a pre-timed light would not be acceptable to NYSDOT. He did not offer any explanation for the change. This Court cannot fathom any reason for making such a change, particularly knowing that NYSDOT would not approve, except to create queuing and delay problems.

Thus, this Court finds that the evidence presented at trial indicates that Defendants' concerns regarding traffic safety were manufactured to justify denying Plaintiffs' SEQRA application. Even if Defendants' concerns are considered reasonable, however, Plaintiffs have offered adequate mitigation for potential adverse traffic impacts resulting from construction of its proposed facility. Indeed, the Town's own witnesses conceded as much. Thus, this Court finds that the Town's purported concerns about traffic safety do not constitute compelling governmental interests.

b. Parking

Defendants also claim that parking concerns justified denying the Church's SEQRA application. As with the Town's expressed concerns about traffic, the evidence at trial demonstrated that the Town's concerns were contrived. First, the Greenburgh Town Code specifies the number of parking spaces required for churches. The Church's proposal complies with the Town Code requirements — in fact, it provides more than the required number of parking spaces. Nevertheless, the Church responded to the Town's purported parking concerns by proposing alternatives with additional parking spaces. Second, Town Traffic Consultant Maris raised concerns about the types of parking on which the Church's proposal relied. He objected to the use of both "dead end" and "drive aisle" parking. However, many other locations within the Town of Greenburgh have both dead end and drive aisle parking areas, many with heavier daily use than is expected at the proposed Church facility. Also, Maris himself has submitted at least one application to the Town that included the use of dead end parking. He has also served

as the Town's traffic consultant on a project, the LOSCO project, on which the Town approved the use of drive aisle parking. Third, the Church proposed various mitigation measures to alleviate potential adverse impacts of their parking proposal, including the use of parking monitors, cones, and valet parking. The Town, without justification, removed references from its FEIS to these proposed measures.

In light of the evidence, this Court does not consider the Town's purported concerns about parking to constitute compelling governmental interests.

c. Steep Slopes

The Findings Statement states that "a significant variance" would be required for the Church's project because it did not comply with the Town's Steep Slope Ordinance, codified at Section 285-39 of the Zoning Ordinance of the Town of Greenburgh. Once again, the evidence indicates that the Town's purported concerns were manufactured. First, at trial, Town Planning Consultant Turner could not identify who made the determination that a variance was required, nor could he identify any portion of the Town Code requiring such a variance. He nevertheless insisted that the conclusion that a variance was required was accurate. The Court granted him time to find support for the conclusion and granted him permission to speak with any person and/or to review any document that might assist him. After four and one-half days, Turner still was unable to provide any legal justification for the Town's determination that a variance was required. Second, Town Planning Consultant Doneit admitted that the statement of law, calculations, and conclusions in the Findings Statement regarding impervious surface area were inaccurate. Third, Russo testified that he recalled a conversation with Feingold of AKRF regarding using the Steep Slopes Ordinance as "one way to stop the Fortress Bible project."

This Court does not consider the Town's expressed concerns about steep slopes to constitute compelling governmental interests.

d. Retaining Walls

The Findings Statement states that "The Lead Agency finds that the proposed retaining walls are an attractive nuisance and are not safe. If children or pets wander into the property they may easily fall and seriously injure themselves, or worse." The concern about retaining walls was not a genuine concern, as admitted by the Town's own witnesses. The Church proposed installing a six-foot high chain link fence along the top of the retailing wall as a safety measure. Town Building Inspector Lucido testified that he was familiar with other sites in Greenburgh where fences were placed on retaining walls to ensure safety and considered the Church's proposal to install such a fence to be a satisfactory mitigation measure. Deputy Town Attorney Insardi also admitted that, by the time the Findings Statement was prepared, there was no longer a safety concern regarding the retaining walls. Nevertheless, she reviewed the contrary conclusion in the Findings Statement and did not object to its inclusion.

Given the Church's proposed fence and the views of the Town's own witnesses, the Town's concern that the retaining walls posed a safety hazard are not compelling.

e. Police and Fire Resources

The Findings Statement concludes that the Church's proposed facility would burden police and fire resources. This conclusion, however, is not supported by the evidence offered at trial. Police Chief Kapica testified he believed that the presence of the Church on the Pomander Drive property would have a de minimus effect on the police department's resources. As early as 1998, Fire Chief Mauro indicated that he had "no exceptions" to the Church's proposed plan. He later expressed some concerns about the traffic generated by the site but, as discussed above, he had not reviewed any of the traffic impact studies and was not familiar with any of the Church's proposed traffic mitigation measures. Upon learning of certain of these mitigation measures, Fire Chief Mauro agreed that they would help alleviate his concerns. Fire Chief Mauro also testified that he believed the construction of the Church's proposed facility would require that four additional firefighters be added to the Fairview Fire District. He could not identify any other land use development within the district that would require the addition of four firefighters.

In light of Chief Kapica's and Chief Mauro's testimony, this Court finds that any burdens to police and fire resources resulting from the Church's proposed project would be minimal. As such, the Town's concerns about the burdens to police and fire resources do not constitute compelling governmental interests.

f. Residents' Concerns

Defendants contend that Greenburgh residents questioned the proposed project's size, impacts to traffic and safety, impacts to police and fire resources, aesthetic impacts, and impacts to steep slopes. Defendants claim that they relied upon these concerns, as well as the recommendations of their professional consultants, during the Town's evaluation process. Even if residents genuinely were concerned about these issues, the evidence at trial demonstrates that none of them created actual problems. The complaints of residents who are not fully informed do not themselves constitute compelling governmental interests.

5. Least Restrictive Means

Because this Court finds that Defendants have not demonstrated a compelling governmental interest for the denial of the Church's SEQRA application, the Court need not address whether Defendants utilized the least restrictive means to address those interests.

6. Conclusion

Plaintiffs established that the denial of its application substantially burdened its religious exercise and that Defendants failed to demonstrate a compelling governmental interest for that denial, therefore, this Court holds that Defendants' denial violates Section 2(a)(1) of RLUIPA.

ii. Equal Terms Claims

Section 2(b)(1) of RLUIPA, the Equal Terms provision, provides that "[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." See 42 U.S.C. § 2000cc(b)(1).

Having found a clear violation of Section 2(a)(1), as a result of which Plaintiffs are entitled to relief under RLUIPA, this Court need not address whether Plaintiffs are also entitled to relief under Section 2(b)(1).

iii. Nondiscrimination Claims

Section 2(b)(2) of RLUIPA, the Nondiscrimination provision, provides that "[n]o government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination." See 42 U.S.C. § 2000cc(b)(2).

Having found a clear violation of Section 2(a)(1), as a result of which Plaintiffs are entitled to relief under RLUIPA, this Court need not address whether Plaintiffs are also entitled to relief under Section 2(b)(2).

iv. Constitutionality of RLUIPA

Defendants challenge the facial constitutionality of RLUIPA, arguing that Congress exceeded its power in enacting the statute and that the statute violates the Tenth Amendment and the First Amendment Establishment Clause.

1. Congress's Power to Enact RLUIPA

As discussed above, RLUIPA only applies when certain jurisdictional bases are satisfied:

(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;

(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or

(C) 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 government to make, individualized assessments of the proposed uses for the property involved.

42 U.S.C. § 2000cc(a)(2). 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. See Westchester Day School VII, 504 F.3d at 353.

This Court has found that Plaintiffs established both that the substantial burden on its religious exercise affects interstate commerce and that the substantial burden is imposed through formal procedures that permit the government to make individualized assessments of the proposed uses for the property involved. See Part IV.a.i.3. Therefore, the Court must examine whether RLUIPA is constitutionally applied under either Congress's Commerce Clause power or Congress's enforcement power under § 5 of the Fourteenth Amendment. See Westchester Day School VII, 504 F.3d at 353.

a. Congress's Power Under the Commerce Clause

The Commerce Clause grants Congress the power "[t]o regulate Commerce . . . among the several States." U.S. CONST. art I., § 8, cl. 3. Congress explicitly referenced this grant by limiting the application of RLUIPA to cases in which, inter alia, "the substantial burden affects, or removal of that substantial burden would affect, commerce . . . among the several States." 42 U.S.C. § 2000cc(a)(2)(B).

As the Supreme Court has made clear, because an interstate commerce nexus must be demonstrated in each case for the statute at issue to operate, satisfaction of such a jurisdictional element is sufficient to validate the exercise of congressional power. See Westchester Day School VII, 504 F.3d at 354 ( citing United States v. Morrison, 529 U.S. 598, 611-12 (2000) ("Such a jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce."); United States v. Lopez, 514 U.S. 549, 561 (1995) (noting that statute in question "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the [activity] in question affects interstate commerce")). Accordingly, the Second Circuit has held that, "where the relevant jurisdictional element is satisfied, RLUIPA constitutes a valid exercise of congressional power under the Commerce Clause." Westchester Day School VII, 504 F.3d at 354.

As discussed above, Plaintiffs' proposed project will affect interstate commerce. See Part IV.a.i.1. Thus, RLUIPA's application in the instant case is constitutional under the Commerce Clause. See Westchester Day School VII, 504 F.3d at 354.

b. Congress's Enforcement Power Under § 5 of the Fourteenth Amendment

Having found that application of RLUIPA in the instant case is constitutional under the Commerce Clause, the Court need not consider whether its application could be grounded alternatively in § 5 of the Fourteenth Amendment. See Westchester Day School VII, 504 F.3d at 354.

2. 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." U.S. CONST. amend. X. 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 Constitution delegates to Congress the power to regulate interstate commerce. See U.S. CONST. art I., § 8, cl. 3. However, Congress has no power "directly to compel the States to require or prohibit" particular acts. See New York, 505 U.S. at 166.

Defendants argue that RLUIPA is unconstitutional under the Tenth Amendment. See Def. Post-Trial Mem. at Proposed Conclusion of Law ¶¶ 190-93. Since Defendants submitted to the Court their Proposed Conclusions of Law, the Second Circuit has held that RLUIPA does not directly compel states to require or prohibit any particular acts, and therefore, does not violate the Tenth Amendment. See Westchester Day School VII, 504 F.3d at 355.

3. First Amendment Establishment Clause

The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion." U.S. CONST. amend. I. In determining whether a particular law violates the Establishment Clause, courts must examine the conduct at issue under the three-prong analysis articulated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). See Westchester Day School VII, 504 F.3d at 355. "Under Lemon, government action that interacts with religion must: (1) have a secular purpose; (2) have a principal effect that neither advances nor inhibits religion; and (3) not bring about an excessive government entanglement with religion. See id. ( citing Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)).

Defendants argue that RLUIPA fails the Lemon test and, thus, is unconstitutional under the Establishment Clause. See Def. Post-Trial Mem. at Proposed Conclusion of Law ¶¶ 194-200. Since Defendants submitted to the Court their Proposed Conclusions of Law, the Second Circuit has held that RLUIPA's land use provisions satisfy the Lemon test, and therefore, do not violate the Establishment Clause. See Westchester Day School VII, 504 F.3d at 355-56.

b. 42 U.S.C. § 1983 42 U.S.C. § 1983 provides that a person cannot, under color of state law, deprive another person of rights secured by the Constitution or the laws of the United States. See 42 U.S.C. § 1983. Section 1983 does not itself provide substantive rights, but rather offers "a method for vindicating federal rights elsewhere conferred." Baker v. McCollan, 443 U.S. 137, 145 n. 3 (1979).

The predicate for Plaintiffs' § 1983 claims are asserted violations of the Free Exercise, Free Speech, and Free Association Clauses of the First Amendment and the Equal Protection and Procedural Due Process Clauses of the Fourteenth Amendment.

i. Liability Under 42 U.S.C. § 1983

1. Municipal Defendants and Individual Defendants in their Official Capacities

A municipality can be held liable only if the alleged unconstitutional action implements an official "policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Monell v. Department of Social Services, 436 U.S. 658, 694 (1978) (quotations omitted). Where an official "has final authority over significant matters involving the exercise of discretion," his choices represent government policy. Rookard v. Health Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983). "An official has final authority if his decisions, at the time they are made, for practical or legal reasons constitute the municipality's final decisions." Id. Proof of policy-making authority requires evidence of the official's scope of employment and his role within the municipality. Id.

The Town, through the Town Board, acted as the final decisionmaker in processing the Church's SEQRA application under New York State and Town of Greenburgh laws. The Town designated itself Lead Agency and possessed final authority regarding various decisions throughout the SEQRA review process including, ultimately, whether to grant or deny the Church's application. Thus, the Town, Town Board, and Town Board members (including Supervisor Feiner) sued in their official capacities, may be held liable under 42 U.S.C. § 1983.

2. Supervisor Feiner in His Individual Capacity

Although Plaintiffs brought this action against Supervisor Feiner in both his individual and official capacities, Plaintiffs' Post-Trial Statement does not address the legal or factual basis on which Supervisor Feiner should be held liable in his individual capacity, nor argue why he is not entitled to qualified immunity. Thus, this Court considers the claims against Supervisor Feiner in his individual capacity to have been withdrawn.

ii. First Amendment

1. Free Exercise

The Free Exercise Clause of the First Amendment provides that "Congress shall make no law . . . prohibiting the free exercise" of religion. U.S. CONST. amend. I. The Free Exercise Clause, which has been applied to the states through the Fourteenth Amendment, "requires government respect for, and noninterference with, the religious beliefs and practices of our Nation's people." Cutter v. Wilkinson, 544 U.S. 709, 719 (2005).

The appropriate standard of review for analyzing claims under the First Amendment's Free Exercise Clause depends upon the facts of the particular case. A strict scrutiny standard of review is appropriate in situations that involve "individualized governmental assessment[s]." Cottonwood, 218 F.Supp.2d at 1222-24. A strict scrutiny analysis is also appropriate where "[g]overnment enforcement of laws or policies . . . substantially burden the exercise of sincerely held religious beliefs." Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 574 (2d Cir. 2000) ( citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) and Sherbert v. Verner, 374 U.S. 398, 402-03 (1963)). "Where the government seeks to enforce a law that is neutral and of general applicability, however, then it need only demonstrate a rational basis for its enforcement, even if enforcement of the law incidentally burdens religious practices." Id. ( citing Church of the Lukumi Babalu Aye, 508 U.S. at 531, and Employment Div., Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 878-79 (1990)).

Here, strict scrutiny analysis is appropriate. This Court has already found, in evaluating Plaintiffs' RLUIPA claims, that the Town's treatment of the Church's SEQRA application constituted an "individualized governmental assessment[]." See Part IV.a.i.1. Strict scrutiny is also appropriate because the Town's SEQRA enforcement substantially burdened the exercise of Plaintiffs' sincerely held religious beliefs. The Court has already found, also in evaluating Plaintiffs' RLUIPA claims, that the Town placed a substantial burden on the exercise of Plaintiffs' religious beliefs. See Part IV.a.i.3. As discussed above, the substantial burden analysis under RLUIPA derives from First Amendment First Exercise jurisprudence. See Part IV.a.i.3. Accordingly, this Court's substantial burden analysis under RLUIPA applies with equal force to the analysis under the Free Exercise Clause. Further, this Court has no doubt that the Church's, as well as Reverend Karaman's, religious beliefs are sincerely held.

Under a strict scrutiny analysis, "a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests." Fifth Ave. Presbyterian Church, 293 F.3d 570 at 574 ( citing Church of the Lukumi Babalu Aye, 508 U.S. at 546 (internal quotations omitted)). This test, of course, is the same as the one this Court has already conducted under Section 2(a)(1) of RLUIPA. Thus, this Court's conclusion that the substantial burden to Plaintiffs' religious exercise was not justified by a compelling governmental interest applies equally to Plaintiffs' Free Exercise claims.

Accordingly, because the denial of Plaintiffs' application substantially burdened their religious exercise and Defendants failed to demonstrate a compelling governmental interest for that denial, this Court holds that Defendants violated the First Amendment Free Exercise Clause.

2. Free Speech

The Free Speech Clause of the First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend I. The general principle of the First Amendment is that it "forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others." Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984).

Plaintiffs allege that Defendants deprived them of their right to free speech by discriminating against them based on the religious nature of their expression, inhibiting their right to freely express their faith to their worshippers and the community unreasonable, and applying land use regulations in a manner to delay, obstruct, and unreasonably deny Plaintiffs the ability to use their Property for expressive purposes. See Sec. Amend. Compl. ¶¶ 116-119. Plaintiffs claims here are, in essence, the same as their claims under the First Amendment Free Exercise Clause, and indeed, are better construed as such. The Court considers Plaintiffs' claims here to have been intrinsically and completely addressed by the above Free Exercise analysis.

Accordingly, Plaintiffs' claims under the First Amendment Free Speech Clause are dismissed.

3. Free Assembly

Although Plaintiffs alleged a Freedom of Assembly claim under the First Amendment, see Sec. Amend. Compl. ¶¶ 123-25, they did not address the claim in their Post-Trial Statement. Accordingly, this Court considers the claim to have been withdrawn.

iii. Fourteenth Amendment

1. Equal Protection

The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. The Equal Protection Clause is "essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). To prevail on an Equal Protection claim, a plaintiff must show (1) treatment different from similarly situated individuals; and (2) that "such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007) (quotations omitted). Alternatively, a plaintiff may establish an Equal Protection claim by showing that (1) "[it] has been intentionally treated differently from others similarly situated," and (2) "there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

Plaintiffs have not offered evidence of another SEQRA application that this Court considers to be on all fours with Fortress Bible Church's application. They have, however, provided numerous examples of applications that are similar to the Church's in size, scope, and certain relevant conditions. These applications reflect instances in which the Town considered and approved, at least conditionally, the exact conditions it claimed justified denial of the Church's application. Taken together, the Town's treatment of these applications compared with its treatment of the Church's application portray a deliberate effort by the Town to thwart the Church's application.

a. Similarly Situated

This Court reviews below those applications it considers to be similarly situated to Fortress Bible Church's application, based on size, scope, geographic location, and the presence of specific relevant conditions. Applications for which evidence was presented at trial but that are not reviewed are those that this Court does not consider to be similarly situated to the Church's application.

i. LOSCO: Traffic Concerns

The LOSCO building application proposed construction of an 18,180 square foot two-story office building. The proposed LOSCO site is located less than one mile from the Pomander Drive property, at the intersection of West Hartsdale Avenue/Dobbs Ferry Road/Knollwood Road, the same intersection involved at the Pomander Drive property. In evaluating the LOSCO application, the town studied traffic conditions at this intersection and relied upon many of the same individuals involved in reviewing the Fortress Bible Church application. The Town ultimately adopted a Conditioned Negative Declaration, thereby determining that that the LOSCO project would not have a significant effect on the environment and a DEIS would not be required.

The LOSCO application is notable for the Town's treatment of traffic conditions, the issue it repeatedly identified as its primary concern with Fortress Bible Church's application. On both applications, the Town evaluated traffic at the intersection of Dobbs Ferry Road and West Hartsdale Avenue. In reviewing LOSCO's application, the Town assumed that the Fortress Bible Church's project had been completed and was generating traffic. That is, the Town assumed that traffic at the intersection would include the traffic that already existed, as well as the new traffic generated by both the Fortress and LOSCO projects. The police department expressed concerns regarding the flow of traffic at the intersection. Nevertheless, the Town issued a Conditional Negative Declaration without requiring LOSCO to make any improvements to the intersection. On the Fortress Bible Church application, on the other hand, the Town concluded that traffic at the intersection required the Church to perform mitigation measures. The Church proposed numerous such measures. Nevertheless, the Town refused to issue a Conditional Negative Declaration, largely based on its traffic concerns. At trial, Traffic Consultant Maris admitted that the problems he required Fortress Bible Church to "eliminate" also existed for the LOSCO project. The Town has offered no explanation for its decision to require Fortress Bible Church, but not LOSCO, to mitigate traffic concerns at the intersection. The Town's differential treatment is particularly difficult to comprehend given that the Town's traffic analyses assumed worse traffic conditions on the LOSCO application.

ii. Union Baptist Church: Parking Concerns

Union Baptist Church, a religious institution located in Greenburgh, submitted to the Town a site plan application involving an expansion from an existing 8,000 square foot church to an approximately 40,000 square foot facility. Union Baptist Church's proposal required (i) a determination of significance by the Lead Agency under SEQRA; (ii) site plan approval by the Town Board; and (iii) a variance for its proposed parking plan. The Town Board declared itself to be Lead Agency for purposes of the SEQRA review and ultimately issued a Negative Declaration on the application.

The Town's treatment of Union Baptist Church's and Fortress Bible Church's parking proposals differed markedly. The Union Baptist Church application proposed parking that was inadequate under the Town Code — the proposal included only 57 spaces, though the Town Code required 287. Accordingly, Union Baptist Church proposed off-site parking arrangements for the remaining 230 spaces, including on the street and at locations across a four lane highway. Much of this parking was limited to the Sunday mid-day time period, i.e. during services, and subject to a one year lease. Police Chief Kapica did not consider the proposal to be safe, nor did the Town's traffic consultant or planning commissioner consider it to be adequate. Rather than requiring Union Baptist Church to comply with the Town's parking ordinance and mitigate its parking concerns, however, the Town approved Union Baptist Church's proposal. In contrast, Fortress Bible Church's application, and all of its proposed modifications, met or exceeded the number of parking spaces required under the Town Code. The Town nevertheless expressed concern about the amount of parking included in Fortress Bible Church's proposal. Fortress Bible Church responded by proposing alternatives that contained additional on-site parking. Even after Fortress Bible Church offered these alternatives, the Town expressed dissatisfaction with the proposed parking. The Town did not, however, suggest or examine the feasibility of off-site parking, even after it assumed preparation of the FEIS. A commercial shopping center located approximately one-half mile from the Pomander Drive property might have been suitable for off-site parking. The Town's different responses to their parking concerns may be explained by their attitudes toward the projects. Supervisor Feiner "enthusiastically" supported the Union Baptist Church project, even, at one point, making it a personal goal to get the application

approved in the year 2004. On the other hand, the Town wanted to "kill" the Fortress Bible Church project.

iii. Solomon Schechter School: Traffic and Parking Concerns

Solomon Schechter School, a Jewish Day School, submitted an application for site plan approval on October 19, 1998. The proposed, and eventually constructed, facility consists of a 129,324 square foot middle/high school to accommodate a maximum of 675 students in Grades 6 through 12. The site is located in a mixed use neighborhood, within one-half mile of the Pomander Drive property and is accessed from West Hartsdale Road. The Town Board was the Lead Agency for purposes of SEQRA review of the Solomon Schechter School application. The Town Board ultimately granted site approval.

The Town treated the Solomon Schechter School application differently from the Fortress Bible Church application in a number of ways. As on the LOSCO application, the Town analyzed traffic conditions, including at the Dobbs Ferry Road/West Hartsdale intersection, as though the Church's facility had been completed. Nevertheless, the Town did not require Solomon Schechter School to mitigate traffic concerns. As discussed in comparison to the LOSCO application, the Town did require Fortress Bible Church to perform traffic mitigation and identified traffic concerns as the primary reason for denying the Church's application.

The Solomon Schechter School application, like the Union Baptist Church application, also proposed inadequate parking. The Town's Findings Statement on the Solomon Schechter School application noted that the proposed parking met the Town Code requirements, but that there would be certain times during the year when extra parking would be needed. The Town permitted the school to place overflow parking off-site at an adjacent school and to make other

accommodations. As discussed in comparison to the Union Baptist Church application, the Town expressed concern about the parking proposed by Fortress Bible Church. The Church revised its proposal and created alternatives with additional parking. At no point, however, did the Town offer to accommodate other parking solutions for the Church.

The Town's treatment of the two applications also differed in the Town's willingness to facilitate the application process. On the Solomon Schechter School application, the Town met with the Solomon Schechter School applicant on multiple occasions. The Town also referred the Solomon Schechter School DEIS and site plan to the Town Planning Board for a report and recommendation. The Town granted site plan approval following concurrent environmental and site plan review and a public hearing on the site plan. On the Fortress Bible Church application, the Town explicitly instructed its staff and consultants to refrain from meeting with the Church or its consultants. The Town also refused to make a referral to the Town Planning Board or to hold a hearing on the Fortress Bible Church application, despite multiple requests from the Church.

The Town offered no explanation at trial for the differences in this treatment of the two projects.

iv. The Hackley School: Steep Slope and Retaining Wall Concerns

The Hackley School is situated on approximately 285 acres of land, most of which is located in the Town of Greenburgh. It is located in a mixed use neighborhood. The Hackley School submitted an application for amended site plan approval for redevelopment of the land on February 13, 2001, seeking to significantly expand the school. The proposed expansion project provided for a net increase of more than 75,000 square feet of new buildings (in two phases) and proposed construction of new roads, parking facilities, storm water drainage infrastructures, and four new buildings. The Town Board acted as Lead Agency on the application and the application involved many of the same consultants as those involved with the Fortress Bible Church application. The Town Board ultimately approved the Hackley School's proposal.

Although both the Hackley School and Fortress Bible Church applications were submitted before the Town adopted its Steep Slope Ordinance, the Town manipulated the application processes such that only Fortress Bible Church was required to comply with the Steep Slope Ordinance. The Hackley School proposed construction on steep slopes in a manner that would not have complied with the Steep Slope Ordinance. The Town granted the Hackley School a waiver from its moratorium on development on steep slopes and also expedited review of the application such that it was granted eight days before the Town adopted the Steep Slope Ordinance, thereby exempting the school from complying with the Ordinance in the first phase of its development. In reviewing the Fortress Bible Church application, the Town stalled the review process such that the Ordinance went into effect before it issued a decision on the Church's application. The Town then relied upon the Church's non-compliance with the Ordinance as grounds upon which to deny its application. At trial, Defense witnesses were unable to explain how the Church's proposal failed to comply with the Steep Slope Ordinance.

The Hackley School application also involved retaining walls, including at least one wall that was fifteen to twenty feet high with a linear distance of more than one thousand feet. The Town did not express any concerns regarding the schools retaining walls. On the Church's application, however, the Town identified the site's retaining walls as a safety hazard. The Church proposed placing a fence on top of the retaining wall, a measure which the Town considered to resolve the safety concerns. Nevertheless, the Town's Findings Statement

identified safety concerns relating to the retaining walls as a basis upon which to deny the Church's application. When confronted at trial with the Town's inconsistent treatment of the applications' retaining walls, Supervisor Feiner attempted to claim that the retaining walls created only a minor issue that could be "solved." Such an assertion was in direct contravention of the Town's Findings Statement.

v. Avalon Green: Concerns Regarding the Threat of Litigation

Avalon Green, a multi-family townhouse developed proposed in the Town of Greenburgh, submitted a site plan involving that required preparation of an EIS and a special permit. The Town Board was the Lead Agency and also had approval authority for issuance of the site plan and the special permit. Avalon Green threatened to, and in fact did, commence litigation on its application.

At trial, the Town attributed its refusal to meet with Fortress Bible Church representatives and consultants during the SEQRA process as due to concerns that the Church had threatened litigation regarding the application. On the Avalon Green project, however, the Town met with Avalon Green representatives not only after there existed a threat of litigation, but even after Avalon Green had actually commenced litigation. The Town has not offered any explanation regarding why it responded to the Church's, but not Avalon Green's, application by refusing to meet with the applicant and its representatives.

b. Basis for Differential Treatment

Having found that similarly situated institutions were treated differently than Fortress Bible Church, this Court must consider whether such differential treatment is supported by a rational justification or based on impermissible discrimination. This Court cannot find any rational basis for the consistency with which the Town identified concerns that purportedly justified denying the Church's application but did not justify denying other applications — especially given that those applications often involved the exact same conditions or conditions, such as traffic congestion concerns, that were actually less problematic under the Church's application.

Because this Court finds that the Town's treatment was not supported by a rational justification, it need not consider whether it was based upon impermissible discrimination.

c. Conclusion

Plaintiffs have proven that similarly situated institutions were treated differently than Plaintiffs, without any rational basis. Therefore, Defendants have violated Plaintiffs' Fourteenth Amendment Equal Protection rights.

2. Procedural Due Process

Plaintiffs mistakenly interpret this Court's May 4, 2006, summary judgment decision as dismissing Defendants' Fourteenth Amendment procedural Due Process claims. See Pl. Post-Trial Mem. at 8 ("By Decision dated May 4, 2006, the Court denied Defendants' motion for summary judgment, except with respect to a single cause of action alleging denial of procedural and substantive due process."). The decision, however, neither considered nor dismissed Plaintiffs' procedural Due Process claims. See Summ. J. Decision at 13, 17 (May 4, 2006) ("For the reasons stated above, Defendants' motions for summary judgment on Plaintiffs RLUIPA, Free Exercise, Freedom of Speech, Freedom of Association and Equal Protection claims are DENIED, as is the Town's motion for summary judgment on all of Plaintiffs' § 1983 claims, and Defendants' motion for summary judgment on Plaintiffs' substantive due process claim is

GRANTED."). Nevertheless, because Plaintiffs did not address the claim in their Post-Trial Statement, this Court considers the claims to have been withdrawn.

c. New York State Constitution

i. Free Exercise

The New York State Constitution provides that "[t]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind." N.Y. CONST. art. I, § 3. This state constitutional provision is comparable to the First Amendment Free Exercise Clause of the Federal Constitution.

It is well established that a state constitutional claim may be broader, but not narrower, than a federal constitutional claim. See, e.g., People v. Kohl, 72 N.Y.2d 191, 210 (N.Y. 1988) ("The guarantees of the Federal Constitution, as construed by the Supreme Court, represent only the minimum level of individual rights which no state may disregard. The protections provided by the New York State Constitution may well be broader. . . ."); see also Festa v. New York City Department of Consumer Affairs, 820 N.Y.S.2d 452 (N.Y. Sup. 2006) ("The function of the comparable provisions of the State Constitution, if they are not to be considered purely redundant, is to supplement those rights to meet the needs and expectations of the particular State."). Thus, having already found that Defendants violated Plaintiffs' Free Exercise rights under the United States Constitution, see Part IV.b.ii.1, the Court necessarily finds that Defendants also have violated Plaintiffs' Free Exercise rights under the New York State Constitution.

ii. Free Speech

The Free Speech Clause of the New York State Constitution provides that "[e]very citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." N.Y. CONST. art. I, § 8. This state constitutional provision is comparable to the First Amendment Free Speech Clause of the Federal Constitution.

Plaintiffs' Free Speech claims under the New York State Constitution, like their Free Speech claims under the Federal Constitution, are better construed as Free Exercise claims. Having found that Plaintiffs' asserted Free Speech claims were encompassed within the Court's First Amendment Free Exercise analysis, the Court dismisses Plaintiffs' claims under the Free Speech Clause of the New York State Constitution.

iii. Free Assembly

Although Plaintiffs alleged a Freedom of Assembly claim under Article I, Section 9 of the New York State Constitution, see Sec. Amend. Compl. ¶¶ 126-28, they did not address the claim in their Post-Trial Statement. Accordingly, this Court considers the claim to have been withdrawn.

iv. Equal Protection

The New York State Constitution provides that "[n]o person shall be denied the equal protection of the laws of this state or any subdivision thereof" and that "[n]o person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state." N.Y. CONST. art. I, § 11. This state constitutional provision is comparable to the Fourteenth Amendment Equal Protection Clause of the Federal Constitution.

As with Plaintiffs' Free Exercise claims under the New York and Federal Constitutions, see Part IV.b.ii.1; Part IV.c.i, having already found that Defendants violated Plaintiffs' Equal Protection rights under the United States Constitution, see Part IV.b.iii.1, the Court also finds that Defendants have violated Plaintiffs' Equal Protection rights under the New York State Constitution. See United Fence Guard Rail Corp. v. Cuomo, 878 F.2d 588, 592 (2d Cir. 1989) ("We observe, as the Appellate Division did, that analysis under the federal and New York State constitutions is the same for purposes of equal protection."); see also Sanchez v. Turner, No. 00 Civ. 1674, 2002 WL 1343754, at *11 n. 13 (S.D.N.Y. June 19, 2002) ("Accordingly, the Court's decision with respect to plaintiffs' Fourteenth Amendment [Equal Protection] claim applies equally to the claim under the New York State Constitution.").

v. Procedural Due Process

As with Plaintiffs' procedural Due Process claims under the Fourteenth Amendment, see Part IV.b.iii.2, because Plaintiffs have not briefed their procedural Due Process claims under New York State Constitution, this Court considers the claims to have been withdrawn.

d. New York State Law Claims

i. N.Y. C.P.L.R. Article 78

Judicial review of a lead agency's SEQRA determination is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination "was affected by an error of law or was arbitrary and capricious or an abuse of discretion." See Matter of Gernatt Asphalt Products v. Town of Sardinia, 87 N.Y.2d 668, 688, 642 N.Y.S.2d 164, 176 (N.Y. 1996). Substantively, the role of the court is "to determine whether the agency took a `hard look' at the proposed project and made a `reasoned elaboration' of the basis for its determination. WEOK Broadcasting Corp. v. Planning Bd. of Town of Lloyd, 79 N.Y.2d 373, 383 (N.Y. 1992). "Where an agency fails to take the requisite hard look and make a reasoned elaboration, or its determination is affected by an error of law, or its decision was not rational, or is arbitrary and capricious or not supported by substantial evidence, the agency's determination may be annulled." Id. Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" or "the kind of evidence on which responsible persons are accustomed to rely in serious affairs." Id.

As discussed above, Defendants contend that the Town denied the Church's application because its proposal: (i) creates unsafe traffic conditions in and around the property; (ii) poses adverse impacts to the Town's police and fire resources; (iii) creates problems related to steep slopes and impervious surface coverage; (iv) creates a public nuisance which endangers the safety of children; and (5) raises various concerns among the property's neighbors. This Court has already found, in evaluating Plaintiffs' RLUIPA claims, that the Town's purported concerns were unsupported, if not wholly fabricated. Without implying that the standards under RLUIPA and Article 78 are the same, this Court finds it unnecessary to repeat here its analysis regarding the Town's purported concerns. For the same reasons that those concerns do not constitute compelling governmental interests under RLUIPA, neither are they supported by substantial evidence under New York law.

Accordingly, this Court finds that the Town's SEQRA determination was not supported by substantial evidence and, therefore, should be annulled.

V. RELIEF

a. Injunctive Relief

Where a RLUIPA violation has occurred, RLUIPA provides for "appropriate relief against a government." 42 U.S.C. § 2000cc-2(a). It is readily apparent that injunctive relief constitutes "appropriate relief" under RLUIPA. See Guru Nanak, 326 F.Supp.2d at 1161-62 (E.D.Ca. 2003). Thus, Plaintiffs are entitled to injunctive relief for Defendants' violations of Section 2(a)(1) of RLUIPA.

Plaintiffs are likewise entitled to injunctive relief for Defendants' violations of 42 U.S.C. § 1983. See Mitchum v. Foster, 407 U.S. 225, 242-43 (1972).

Accordingly, the Court hereby annuls and sets aside: (i) the Positive Declaration issued by the Town Board on July 19, 2000; (ii) the FEIS issued by the Town Board on December 1, 2003; and (iii) the Findings Statement adopted by the Town Board on April 14, 2004.

The Court orders that the Fortress Bible Church's January 2000 site plan (EAF) application is deemed approved for purposes of SEQRA and that there shall be no further SEQRA review by the Town or its Boards (including, but not limited to, the Town Board and the Zoning Board of Appeals).

The Court further orders that: (i) within sixty days of the date of this Opinion and Order, the Town Board shall adopt a resolution approving the Church's January 2000 site plan (EAF) (Joint Exh. 11(e)), pursuant to Town Law § 276, subject to reasonable and customary conditions and updated to comply with New York State Department of Environmental Conservation Phase II stormwater regulations; (ii) within sixty days of the date of this Opinion and Order, the Town Board shall adopt a resolution granting the Church a waiver from the requirement of having a landscaped parking island every fifteen spaces; (iii) within sixty days of the date of this Opinion and Order, the Town, by its Zoning Board of Appeals, shall adopt a resolution granting the Church's application for a side yard variance subject to reasonable and customary conditions; and (iv) within ninety days of this Opinion and Order, the Town, by its Building Department, shall issue a building permit for the Church's January 2000 site plan (EAF), as modified to comply with New York State Department of Environmental conservation Phase II stormwater regulations, and subject to any reasonable and customary conditions or requirements.

Defendants are hereby enjoined and restrained from taking any action that unreasonably delays or interferes with any of the foregoing directives.

b. Compensatory Damages

Courts are divided on the issue of whether the "appropriate relief" available under RLUIPA extends to monetary damages. Compare Madison v. Commonwealth of Virginia, 474 F.3d 118, 131-32 (4th Cir. 2006) (monetary damages are not available under RLUIPA) with Smith v. Allen, 502 F.3d 1255, 1265 (11th Cir. 2007) (monetary damages are available under RLUIPA). The Second Circuit has not yet resolved the issue. "The operative issue is whether New York, in accepting federal funds pursuant to RLUIPA, has waived sovereign immunity as to money damages." See Pugh v. Goord, 571 F.Supp.2d 477, 507 (S.D.N.Y. 2008). The Supreme Court has held that a state's sovereign immunity will be waived only when "(1) Congress evince[s] a clear and unequivocal intent to hold the States liable in federal court; and then (2) a state voluntarily engage[s] in that particular activity." Id. at 509 ( citing Close v. State of New York, 125 F.3d 31, 39 (2d Cir. 1997).

Courts within this Circuit have found that "the term `appropriate relief against government' makes no mention of compensatory or other damages, and thus is insufficient to provide the unambiguous waiver necessary for a finding that New York, by accepting federal funds, waived its right to sovereign immunity on claims for money damages under RLUIPA." Id. at 509; see also Bock v. Gold, No. 05 Civ. 151, 2008 WL 345890, at *6 (D.Vt. Feb. 7, 2008) ("Unlike 42 U.S.C. § 1983 which explicitly creates `an action at law', RLUIPA only creates an action for `appropriate relief' which is at best an ambiguous extension to monetary claims."). This Court agrees and therefore finds that Plaintiffs are not entitled to monetary damages under RLUIPA.

Plaintiffs are, however, entitled to compensatory damages under 42 U.S.C. § 1983. Indeed, "the basic purpose of § 1983 damages is to compensate persons for injuries that are caused by the deprivation of constitutional rights." Memphis Community School District v. Stachura, 477 U.S. 299, 307 (1986) (internal quotations omitted).

Plaintiffs are instructed to submit to the Court a separate application, including supporting documentation, setting forth the amount they believe to constitute appropriate compensatory relief. The application shall include documentation supporting the following costs: (i) increased construction costs incurred as a result of delays; (ii) increased traffic improvement costs incurred as a result of delays; (iii) reimbursement for excessive SEQRA fees; (iv) consultants' fees incurred as a result of the Positive Declaration; (v) attorneys' fees and costs incurred as a result of Defendants' violation of Open Meetings Law § 107, which this Court found Defendants to have violated in its March 29, 2004, order; and (vi) costs incurred as a result of this litigation. Plaintiffs may also submit a request for any other compensation to which they believe they are entitled. Unless otherwise set forth in this Opinion and Order or in the March 29, 2004, order, this request for documentation should not be construed as the Court deeming that specific requests for compensatory relief are appropriate.

Although Plaintiffs have submitted documentation regarding much of this information, the information before the Court is not complete.

c. Sanctions

The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation. See Fujitsu Limited v. Federal Express Corporation, 247 F.3d 423, 436 (2d Cir. 2001). Once a court has concluded that a party was under an obligation to preserve the evidence that it destroyed, the court must then consider whether the evidence was intentionally destroyed and the likely contents of that evidence. See id. "The determination of an appropriate sanction for spoliation, if any, is confined to the sound discretion of the trial judge and is assessed on a case-by-case basis." Id. (citations omitted). The Second Circuit has observed that its "case-by-case approach to the failure to produce relevant evidence seems to be working." Id.

The record is replete with evidence regarding Defendants' intentional destruction of evidence and disregard for discovery obligations. For example, Councilwoman Weinberg admitted that she intentionally discarded documents subject to discovery in this matter. At trial, she initially claimed that she was never advised to refrain from destroyed and discarding documents. However, as her deposition transcript reflects, she was advised by Plaintiffs' counsel at her deposition to refrain from destroying documents in her possession. Despite counsel's explicit instruction, subsequent to the deposition, Councilwoman Weinberg discarded documents. She admitted that the documents she discarded concerned the Church's application.

Deputy Town Attorney Insardi, an attorney with almost twenty years of criminal and civil litigation experience, testified that she did not place a litigation hold or in any way advise Town staff and consultants to retain documents related to the Church's application, despite her claim that she believed the Church had threatened litigation as early as May 2002. In January 2005, after commencement of this litigation, Deputy Town Attorney Insardi was deposed pursuant to an Order of this Court on the specific topic of Defendants' failure to produce certain electronic documents. Even after the deposition, she did not advise anyone at the Town that Defendants were required to preserve evidence. Given her position as a Deputy Town Attorney, Insardi's failure to advise Town staff and consultants of their discovery obligations is inconceivable and troubling. Supervisor Feiner, also a licensed attorney (albeit a non-practicing one), testified that he did not refrain from destroying documents, even though he anticipated litigation in this matter as early as December 2001.

Because the Town did not instruct its staff and consultants to retain documents, evidence likely relevant and probative to this litigation was destroyed. For instance, Town Traffic Consultant Maris testified that he electronically wrote over draft conceptual plans on the Church's project that he prepared for the Town. As a result, alternatives and draft alternatives were destroyed. Likewise, Town Planning Commissioner Stellato discarded all of his notes from meetings concerning the Church's application.

In addition to destroying evidence and not placing the appropriate litigation hold on documents in the Town's possession, Defendants failed to produce certain evidence to Plaintiffs. Such was made clear at trial when Defendants attempted to enter into evidence correspondence between Deputy Town Attorney Insardi and Town Traffic Consultant Maris, which had been undisclosed until the evening before the evidence was offered at trial. That the correspondence was between Insardi and Maris renders the incident particularly egregious, being that it should have been produced separately from each of their files. Defendants' failure to produce such a document raises concerns that there exist additional internal Town Documents that Defendants have never produced, in contravention of their discovery obligations.

Defendants' blatant disregard for its discovery obligations under the Civil Rules of Procedure compels this Court to hereby sanction Defendants in the amount of $10,000 for their spoliation of evidence and failure to comply with their discovery obligations under the Civil Rules of Procedure.

VI. CONCLUSION

For the foregoing reasons, the Court concludes that Defendants have violated Section 2(a)(2) of RLUIPA, the First Amendment Free Exercise Clause, the Fourtcenth Amendment Equal Protection Clause, the Free Exercise Clause of the New York Constitution, the Equal Protection Clause of the New York Constitution, and Article 78 of the N.Y. CPLR.

It is so ordered.

Dated: White Blains, New York

August 11, 2010