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July 24, 1984

CONGREGATION BETH YITZCHOK OF ROCKLAND, INC., Plaintiff, against TOWN OF RAMAPO, JOHN SENGSTACKEN, Individually and as Building Inspector for the Town of Ramapo, GORDON WREN, Individually and as Assistant Building Inspector for the Town of Ramapo and THE NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES, Defendants.

The opinion of the court was delivered by: HAIGHT


HAIGHT, District Judge:

 In this action, which came on by order to show cause, plaintiff Congregation Beth Yitzchok of Rockland, Inc. ("Beth Yitzchok") seeks to preliminarily enjoin defendant Town of Ramapo ("the Town") from enforcing certain municipal regulations that interfere with plaintiff's operation of a religious nursery school on the synagogue premises. Rabbi Meshulem Rottenberg is the spiritual leader of the congregation. Plaintiff allgeges that the actions of defendants are in violation of the First and Fourteenth Amendments of the United States Constitution and 42 U.S.C. ยง 1983.

 After a hearing before this Court, I denied plaintiff's application for a temporary restraining order and directed that the matter be more fully briefed before determination of the instant motion for a preliminary injunction. Subsequent thereto, several events have transpired. First, plaintiff withdrew its action against defendant New York State Department of Social Services. Second, in the hope of facilitating a resolution of this matter without recourse to further litigation, the Court convened a conference with the remaining parties to discuss what specific measures plaintiff would be required to take in order to enable its premises to be used as a synagogue and/or religious nursery school. That conference resulted in a further inspection of the synagogue premises by the Town of Ramapo and additional written submissions by both parties. Although this exercise helped to some extent to clarify the statutory framework of this action, it did not lead to the conciliation urged by the Court. Accordingly, I turn to a consideration of plaintiff's motion for injunctive relief.



 In April of 1983, plaintiff Beth Yitzchok purchased the premises at 61 College Road, Monsey, Rockland County, New York, for use as a synagogue and as the Rabbi's parsonage. Although, because of certain delays in clearing title, the property was not deeded to Beth Yitzchok until April, plaintiff actually took possession of the premises under a lease arrangement in July of 1982. In September of 1982, plaintiff commenced operation of a religious school for the teaching of Jewish laws and customs to children between the ages of three and five.(Rottenberg Aff. of Oct. 26, 1983, PP4-7).

 The nursery school operated apparently without incident until April 20, 1983, when the Town of Ramapo issued an order, signed by defendant Sengstacken, the town building inspector, citing plaintiff for violation of Section 140-10A of the Revised Code of the Town of Ramapo. That section provides as follows:

 "Section 140-10 Certificate of Occupancy and or use.

 "C. No change shall be made in the use or occupancy of a building or structure unless a Certificate of Occupancy authorizing the change of use shall have been issued. A change in use shall include, but not be limited to a change in or of the type, class, nature or scope of the goods, services or operation."

 Specifically, the order directed plaintiff to cease operation of the nursery school, that use being "neither in conformity with the Certificate of Occupancy nor a use accessory to said certificate." (Comp., Ex. A). The order further indicated that use of the building as a synagogue also violates the present Certificate of Occupancy. Id. Rabbi Rottenberg was served simultaneously with an appearance ticket directing him to appear before the Justice Court of the Town of Ramapo to answer the charge that his use of the premises violated the ordinance. (Comp., Ex. B). After trial, Rabbi Rottenberg was fined $125 and given a conditional discharge, the condition being that he not repeat the violation within the next six months. During this time period, Rabbi Rottenberg and Beth Yitzchok were also served with a second appearance ticket alleging the same violation, a charge that was later dismissed on the motion of the Town of Ramapo. (Rottenberg Aff. PP11-17). As a result of these events, plaintiff alleges that it has been forced to close its nursery school (id., P20) and, despite numerous attempts, has not been able to secure an acceptable new location for the school. (Id., P22).


 Plaintiff's Motion for a Preliminary Injunction

 In order to prevail on its motion for preliminary injunctive relief, plaintiff must demonstrate both irreparable harm and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation coupled with a balance of hardships tipping decidedly in its favor. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979); Mattel, Inc. v. Azrak-Hamway Intern, Inc., 724 F.2d 357, 359 (2d Cir. 1983). In order to utilize the less onerous "serious questions" prong of the above standard, a plaintiff must make the additional showing that the hardships it will suffer if the injunction does not issue far outweigh the hardships which would be visited upon defendants if the injunction is granted. Stated simply, "the equities must strongly favor the issuance of an injunction." Cavallaro by Cavallaro v. Ambach, 575 F. Supp. 171, 174 (W.D.N.Y. 1983).

 In the instant action, plaintiff seeks to enjoin defendant from enforcing various regulations allegedly applicable to plaintiff's use of its premises for a religious nursery school on the ground that such enforcement violates both the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The irreparable harm alleged is both constitutional and financial, the latter being the loss of approximately $15,000 in annual revenue from plaintiff's operation of a nursery school. Although this financial injury would appear to be wholly compensable in monetary damages, the constitutional deprivation alleged -- the loss of religious freedom entailed in termination of "a nursery school that teaches a unique Hassidic tradition" (Pl.Reply Br. at 4) -- presumably cannot be remedied monetarily.

 Even assuming however, that plaintiff could successfully demonstrate that, absent the issuance of a preliminary injunction, it would suffer irreparable constitutional injury, I am not satisfied that plaintiff has carried its burden with respect to the other essential predicate to injunctive relief: a likelihood of success on the merits or sufficiently serious questions going to the merits plus a decided tipping of the equities in plaintiff's favor. This is true with respect to both plaintiff's First and Fourteenth Amendment claims.

 Plaintiff's Free Exercise Claim

 In cases alleging violations of the Free Exercise Clause of the First Amendment, a court is obligated to consider and accommodate competing, constitutionally grounded interests: an individual's right to practice his or her religion freely and the state's interest in exercising its powers in pursuit of important governmental objectives. Clearly, if the explicit or implicit purpose of a law is to regulate religious beliefs, to impede the observance of all religions or a particular religion, or to discriminate invidiously between religions, that law cannot pass constitutional muster. Braunfeld v. Brown, 366 U.S. 599, 607, 6 L. Ed. 2d 563, 81 S. Ct. 1144 (1961); United States v. Middleton, 690 F.2d 820, 824 (11th Cir. 1982), cert. denied, 460 U.S. 1051, 103 S. Ct. 1497, 75 L. Ed. 2d 929 ...

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