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Which Wins - 'Planning' or 'Piety'?

How planning boards are losing future control of their zoning laws.

In Windsor, Colorado, the Town Board decided that because of a dispute over the height of church steeples it would need to have a work session to discuss the Religious Land Use and Institutionalized Persons Act (RLUIPA).

RLUIPA states:  No local government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution unless the government demonstrates that imposition of the burden on that person, assembly, or institution, is in furtherance of a compelling governmental interest.

This Act has grave consequences for the application of the zoning laws in Rockland County. Simply stated a religious group can take a municipality into court claiming discrimination about a zoning variance it was not granted and the municipality must pay for the plaintiff's legal fees (which can be millions of dollars) if the municapality loses. Several variance requests from religious institutions came before the Windsor Town Board that dealt with steeple heights which exceeded the town's current height restrictions.  Windsor Now reports:

The Church of Jesus Christ of Latter-day Saints received approval to construct a 64-foot steeple. However, the town denied a request by Our Lady of the Valley Catholic Church for a 65-foot bell tower.  John Frey, town attorney, said the issue has become a heated one in many municipalities, and there are a large number of lawsuits revolving around RLUIPA.

Frey told the board Windsor hasn't had any problems yet, but they should be proactive.  “We can make life a lot easier and we can protect the town by making the changes that I think we need to make to the code with regard to compliance with RLUIPA,” Frey said.

Litchfield County in Connecticut has decided to take the risk of opposing a RLUIPA challenge in court but many villages and hamlets can not.  In the March 17, 2012 issue of the Hartford Courant appears an article that should sound alarm bells to every planning board in Rockland County.  The article describes how Chabad Lubavitch, a branch of Hasidism, is heading towards an appeal to the U.S. Supreme Court over a zoning dispute in Litchfield County.  The article states:

“This dispute involving religion and the character of the historic Town Green is likely to continue with the decision by a religious group to fight a court order that denies its application to build a synagogue and community center near the Green on West Street. Chabad Lubavitch has filed notice in federal court that it is appealing a federal judge's dismissal in February of its lawsuit. The group claimed that it was the victim of religious discrimination when the Borough of Litchfield, the Borough's Historic District Commission and others denied the application.

The conservative religious group has been fighting for years to expand on property it purchased in 2006 at 85 West Street. Chabad's property now contains a 140-year old, Victorian brick home. The Victorian, known in town as the Deming House, was rezoned from residential to commercial in 1971. Chabad has proposed to remodel and add substantially to the home to accommodate what it describes as places of worship, areas for religious education, space for children's' preschool and youth activities, libraries for Jewish texts, housing for Rabbi Joseph Eisenbach and his family and a guest apartment.

Litchfield and Chabad disagree about the size of the building project, as well as whether it would fit with the character of other buildings around the green.  Eisenbach said Saturday night he wants build a religious center with a footprint of about 4,700 square feet. Litchfield, in its filings in court, said the project would consist of a total of nearly 20,000 square feet.

Chabad and Eisenbach sued in 2009, charging discrimination and the denial by Litchfield of its religious freedom, among other things, after the borough denied its application to expand the Deming House. The borough and its historic district commission said the denial was based on their belief that the expansion did not comply with historic district building codes. The National Park Service calls the Litchfield green "probably the finest surviving example of a typical late 18th century New England town."

Chabad filed notice in federal court late last week that it would appeal Hall's ruling to the U.S 2nd Circuit Court of Appeals in New York.”

All Planning Board, and Zoning Appeals Board members should attend a screening of the documentary film America's Holy War which shows the consequences of the RLUIPA Statute to Rockland County as it pertains to the proposed development of Patrick Farm in Ramapo. Complicating the enforcement of zoning codes when challenged through RLUIPA is the fact that planning boards and ZBAs have permitted variances to be issued on land use questions which will come back to haunt them.  The practice in Clarkstown is that two people, the Building Inspector and Zoning Administrator, are the ones who are responsible for interpreting the zoning local law and sometimes they take a myopic view of the consequences of their interpretations of the law. This means that Planning Boards look only at a single tree, take the advice of two lumberjacks, and fail to realize that the whole forest around them is about to burst into flames.

For example, in a , the developer bought a tax lot he knew was not zoned for the sale of gasoline adjacent to a tax lot which he already owned and that is zoned Local Shopping LS but has a nonconforming use to sell gasoline. The developer is applying for variances to permit use of the newly purchased tax lot to sell gasoline with the nonconforming use being transferred to the new tax lot.  

This is a recipe for the Clarkstown Planning Board to surrender all control over the Town’s future application of its zoning laws under RLUIPA.  That one variance which benefits the developer (and which may also bring the Town one slightly increased rateable) will, sooner or later, come back to haunt the Planning Board when a religious group seeks to have a nonconforming variance granted from a small tax lot it already owns to say a 30 acre adjacent tax lot that it has just purchased and this request is denied. The Planning Board will be rendered powerless when faced with the threat of a RLUIPA lawsuit because of the previous precedent set in this one relatively simple case.

Fortunately for Litchfield County it has been adamant about the enforcement of its zoning code as it pertains to historical properties and so has established numerous precedents by refusing variances for non-religious organizations as well as the one now winding its way through the legal system.  This case may go to the Supreme Court and if Litchfield County loses, it will have to pay all of the legal expenses of Chabad Lubavitch.

America's Holy War which was filmed over a four-year period, much of it in Rockland County, asks several questions. Was RLUIPA necessary?  Has it achieved what lawmakers intended?   What are the social and environmental consequences of a Statute which, in practice, subjugates all planning and environmental laws on the books? "It's not just about Ramapo," said documentary maker Anne MacGregor. "It's about the impact of this law for communities across America."

According to the Journal News:

The act was signed into law in 2000 by President Bill Clinton after heavy lobbying by religious rights groups. The goal of the law was to protect individuals, houses of worship and other religious institutions from discrimination in zoning regulations. Supporters of the law said it ensured that religious groups were not discriminated against. But critics insisted that the law gave religious groups the ability to bypass local zoning regulations.

In Rockland, many of the cases involve Ramapo's large Jewish population. Airmont, a village in Ramapo, lost an RLUIPA case involving a plan filed by a Jewish congregation to build a school and 170-student dormitory, along with 30 apartments for faculty and married students, on 19 acres along Hillside Avenue. The case cost the tiny village nearly half a million dollars in legal fees.

Another case involved efforts by a Monsey group to open a house on Hillcrest Road to allow observant Jewish families to stay overnight during the sabbath while visiting patients at Good Samaritan Hospital. In her documentary, MacGregor focuses on many of the Rockland cases, including the fight by Congregation Rabbinical College of Tartikov, which wants to build a rabbinical college with dormitories on a 130-acre site off Routes 202 and 306 in Pomona.

"There are a cluster of RLUIPA cases in Ramapo and it seemed like a good place to start telling the story” MacGregor said.

Those “cluster of RLUIPA cases” will eventually spring up throughout Rockland County leaving Planning Boards and ZBAs powerless because of past decisions they made playing fast and loose with their zoning codes at the whim of commercial developers.

Before it is too late members of Planning Boards need to stop taking only the advice of their local building inspectors and zoning administrators and heed the advice provided by America's Holy War.  I recommend that the Clarkstown Town Board and its Planning Board follow the lead of the Town of Windsor and protect Clarkstown by making whatever changes are required to strengthen the zoning code with regard to compliance with RLUIPA.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

commonsense March 30, 2012 at 11:55 AM
Thank you Mr. Hull. Clarkstown better get this right.
Maureen March 30, 2012 at 12:03 PM
Agree, Commonsense. Oh so true!!    The Journal News says that developers see Planning Boards as their personal ATMs http://www.lohud.com/article/99999999/WATCHDOG/399990186/Developers-bet-rezoning-properties-boost-value-by-millions?odyssey=mod|newswell|text|Frontpage|s and they "count on the  ignorance of residents, while elected officials seem to have no problem ignoring zoning laws soon after they are adopted."    That's elected officialdom in action! That's why it is said that you can't fight City Hall.   Patrick Farm became a “fast-tracked” application and the elected robots in Ramapo voted in a block on every issue with not one person dissenting despite all objections to the residents who live there.   Who are we to criticize North Korea? As for Bardonia the law on nonconforming uses will not be interpreted as the drafters intended but what developers and their friends in local government want it to be.  Clarkstown may sadly put this developer's needs before the safety of the elementary school children about 100 yards away. Yep!  North Korea!
Watchdog March 30, 2012 at 01:16 PM
Many times in Clarkstown even the Zoning Board is bypassed as homes officially zoned as one-family homes are turned into two family homes without Zoning Board approval. These are taxed as two family homes, listed as two family homes on the Town records, work turning it into a two family home is inspected by the Building Inspector and a C of O is issued for the completed work. These homes are in an officially zoned R-30 one familiy areas and remain one family homes, must be sold as a one family home but are used as two family homes, many times turned into rental , boarding house properties or used for businesses.. The owners continue to receive STAR exemptions as if they lived in the home and the Town of Clarkstown does nothing about it.
George C March 30, 2012 at 01:30 PM
When you make contributions to certain people in charge, you get a pass. Follow the money. How else does someone get 1 million dollars in campaign contributions for being supervisor of a small town?
Watchdog March 30, 2012 at 03:18 PM
Rockand County is essentially DOOMED. Unless we eliminate career politicians like Cornell, Schoenberger, St Lawrence and Vanderhoef and career party leaders like Lettre and Reda we have more of the same. THERE IS NO HOPE. Voters are apathetic and politicians know it. It is a game of GIMME for the BLOC voters as well as the UNIONS. Both of these groups control elections and are BROTHERS IN SOLIDARITY. UNIONS and the BLOC vote as ONE, as brothers to get what they want and NOTHING is in the cards to change that. WE ARE DOOMED.
Maureen March 31, 2012 at 12:42 PM
George - You might follow this link  http://blog.szlawfirm.net/zoning_and_land_use_law/rluipa/ I wonder if it the Town of Clarkstown and its Planning Board and Zoning Board of Appeals are doing the same thing?  I'm not impressed by their legal counsel! Note in the August 16, 2010 case how the 'wheeling and dealing' got the Town into trouble. "During a meeting in July 2000 the Court found that the Town Supervisor said that half the issue was traffic and the other half was the tax exempt status of the Church. The Supervisor then suggested that the Church either donate a fire truck or make some other payment to the Town in lieu of taxes. In fact, the Court noted that the Supervisor testified that the tax exempt status of the Church was “hampering or hindering” the approval. The Court also noted testimony by the then planning commissioner that he was instructed by at least one member of the Town Board to “help stop the project or kill the project” as the council person did not want another church in the Town. The Church refused to make a “donation” to the Town." This is the type of behavior that we see in the TOC. Watchdog - If you are correct about one-family homes being used as two-family homes then RLUIPA will soon be on the TOC's doorstep. Stupid is as Stupid does!
Watchdog March 31, 2012 at 02:23 PM
Maureen, as an illustration, the home in Nanuet at 48 Oakland Place is officially a one family home, taxed as a two family home, work duly approved by The TOC Building Inspector and has a license issued by NYS for a group Day Care with the approval of the TOC. The owner Dora Gutman dies not live there but receives the STAR exemption. She can house 16 kids in this High Ranch, all clumped together I imagine. Hard to believe but the TOC saud it was OK. She is allowed to operate this Day Care without any comment by the TOC about the history of police calls involving drugs and children as well as Pit Bulls attacking People including a NYC cop who had tO discharge his weapon. My neighbor and his wife were nearly attacked and except for the NYC cop they would have been attacked. PATCH wrote about this. She still owns these Dangerous Pit Bulls and has brought them to this residence time and time again after being given a slap on the wrist by Gromack and his crew. This problem started years ago when it was permitted to operate as a 2family rental. Had they not been permitted to make it into a 2 family we would not have these problems.
Michael N. Hull April 02, 2012 at 02:40 PM
This information from the Rockland County Times is not exactly RLUIPA but the same 'religious' arguments are being made. http://www.rocklandtimes.com/2012/03/29/ramapo-redistricting-lawsuit/ I quote: "Residents in the Town of Ramapo brought a lawsuit against the State of NY last week alleging that new redistricting in the town is religiously biased and violates the state constitution. The main argument of the lawsuit cites article III, section 5 of the Constitution of New York State which reads, “No Town, except a Town having more than a ration of apportionment and one half over, and no block in a city inclosed by streets or public ways, shall be divided in the formation of assembly districts…” The Town of Ramapo has three assembly districts, (94, 95, and 96). District 95  represents the heavily Chasidic Jewish villages of Kaser and New Square. The new redistricting would still leave Ramapo with three assembly districts but now the villages of Kaser and New Square would have their own districts. The suit argues that the existing and proposed assembly lines violate the “one person, one vote” provision of the Equal Protection Claus Fourteenth Amendment to the Constitution of the United States. It also alleges that as a result of failing to assign a single assembly district to the Town of Ramapo, the voting power of residents has been diminished without due process of law."

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