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November 30, 1979


The opinion of the court was delivered by: WERKER

This civil rights action brought pursuant to 42 U.S.C. § 1983 was commenced by plaintiff Holy Spirit Association for the Unification of World Christianity ("Unification Church") against the Town of New Castle ("New Castle"), the Zoning Board of Appeals of the Town of New Castle (the "Zoning Board"), Chairman of the Zoning Board, four of its members and the Building Inspector of New Castle. *fn1"

Plaintiff has moved by order to show cause for a preliminary injunction compelling the Zoning Board to issue a special use permit for the operation of a "religious retreat" on a 98 acre tract of land purchased by Unification Church in a residential zone. On November 21, 1979 a hearing on the application for a preliminary injunction was held before this court, and after hearing oral argument from both sides, this court denied plaintiff's motion. This opinion amplifies the reasons given at the hearing.

The principal facts are not in dispute and can be briefly stated as follows. In April 1979, plaintiff Unification Church acquired a tract of land from the Sisters of the Cenacle at a foreclosure sale in New Castle. The land was located in a residential zone, and under the applicable New Castle zoning ordinance, adopted in 1971, institutional uses are permitted in residential zones only by special permit.

 On July 7, 1979 plaintiff filed an application with the Zoning Board for permission to use its property as a "religious retreat center . . . to provide an environment in which a person might improve and experience . . . emotional and intellectual relationship with God . . . through prayer and a series of lectures setting forth the theology of the Church."

 The Zoning Board referred the application to the Planning Board for site plan approval which was granted on September 13, 1979. The Board determined that a draft environmental impact statement ("DEIS") was required under the State Environmental Quality Review Act ("SEQR"). The Board scheduled a series of regular and special meetings to consider the merits of plaintiff's application. Hearings were held on September 26, October 10, October 31 and November 19, 1979. The hearings are scheduled to continue. Plaintiff has not yet filed its DEIS which it has agreed to furnish on or before December 3, 1979, the date of the next scheduled special board meeting called to consider plaintiff's application.

 On November 14, plaintiff filed the within action in this court seeking (a) to declare the New Castle zoning ordinance unconstitutional on its face and as applied; (b) injunctive relief directing defendants to issue a special use permit; (c) demanding damages in excess of $ 1,000,000 against the Town of New Castle, its Building Inspector and the individual members of its Zoning Board; and (d) enjoining the Zoning Board from inquiring into the nature, theology, affiliations, finances, personnel, structure or other private aspects of the Unification Church. Coincident with the filing of the complaint, plaintiff moved for the injunctive relief which is the subject matter of this opinion.

 Plaintiff's moving papers seek mandatory injunctive relief which is not appropriate at this stage of the proceedings. The purpose of a preliminary injunction is to preserve the status quo between the parties pending a full hearing on the merits. Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356, 1360 (2d Cir. 1976). Preliminary injunctive relief is improper where it would give the plaintiff substantially all the ultimate relief it seeks. Id. at 1360. Accord Diversified Mortgage Investors v. U. S. Life Title Ins. Co. of New York, 544 F.2d 571, 576 (2d Cir. 1976).

 Furthermore, "mandatory injunctions . . . are not granted unless extreme or very serious damage will result." Clune v. Publishers' Association of New York City, 214 F. Supp. 520, 531 (S.D.N.Y.), aff'd on opinion below, 314 F.2d 343 (2d Cir. 1963).

 At the hearing, however, it appeared that plaintiff sought only to maintain the status quo. *fn2" Even if the lesser standards applied to prohibitory injunctions designed to preserve the status quo were applicable, plaintiff cannot sustain its burden. Preliminary injunctive relief in this Circuit calls for a showing of

(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.

 Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979).

 In order to satisfy the first prong of this test, the threatened irreparable harm must be actual and imminent and not remote and speculative. State of New York v. Nuclear Regulatory Commission, 550 F.2d 745 (2d Cir. 1977). Plaintiff premises its demand for injunctive relief upon the occurrence of events that may or may not transpire at some time in the future. Such claims fail to rise to the level of immediate and irreparable constitutional injury. There is no present threat of serious damage to plaintiff preventable only by this court's intervention. Neither the Zoning Board nor any of the other defendants has taken a single step causing plaintiff immediate or irreparable harm. The dispute is thus not yet ripe for determination.

 Similarly specious is plaintiff's claim of irreparable harm if the Zoning Board proceedings are allowed to continue. Plaintiff is not suffering any deprivation except that like every other land owner, it is not permitted to alter the use of its property without first seeking to comply with local law. Because of its claim to special constitutional status as a religious entity plaintiff complains that it is being subjected to an unconstitutional prior restraint by having to apply for a special institutional use permit. I find the principles of Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965), relied upon by plaintiff to support its contention to be inapposite. Plaintiff is not being denied the use of or access to its property for the exercise of its religious beliefs in violation of claimed first amendment rights. There is therefore no prior restraint. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976). The property in question was formerly owned by the Sisters of the Cenacle who used the property in the manner of a non-conforming use. That non-conforming use lapsed prior to the time plaintiff purchased the property. *fn3" The sole permitted use, therefore, was for single family residence. Under this permitted use, plaintiff may enjoy its first amendment rights to conduct its religious activities on the property and observe its religious beliefs. In Young v. American Mini Theatres, Inc. supra, the Supreme Court drew this distinction between unconstitutional limitation of access to first amendment expression and constitutional regulation thereof by zoning ordinance. The Court found that the latter involves no prior restraint. Id. at 71-73, 78-79.

 The second prong of the test requires either likelihood of success on the merits or sufficiently serious questions going to the merits of the moving party's cause of action. Plaintiff's complaint is predicated on the propositions that New Castle's zoning ordinance is unconstitutional both on its face and as applied. The first cause of action set forth in the complaint alleges that the zoning ordinance is violative of the first and fourteenth amendments because (1) "it fails to provide on its face an expeditious and time limited proceeding" for determination of special use permits; (2) "it purports to make convenience of the community a consideration for the granting of a permit for religious use"; and (3) it requires consideration of such factors as "harmony with the surrounding areas" and "conduciveness to development" for determination of special use permits. The second cause of action is predicated on the alternative proposition that the zoning ...

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