The opinion of the court was delivered by: Goettel, District Judge:
Racial and religious intolerance have long been endemic in
our nation. While progress has been made during this century,
these scourges have not disappeared. Newspapers daily chronicle
overt acts of hatred such as cross burnings on the lawns of
black families, swastikas painted on the walls of synagogues
and racial epithets flying between mobs of angry people. More
subtle, but equally invidious, are actions taken in the name of
community interest, protected by our political system, which
draw upon the prejudices of the electorate, effectively
institutionalizing the hatred and bigotry we deplore as a
nation. This case presents the question of whether such
intolerance led to the incorporation of a village in order to
facilitate the enactment of zoning which would effectively
exclude Orthodox Jews from residence.
The Village of Airmont (the "Village" or "Airmont")
encompasses approximately five square miles on the southern
border of the Town of Ramapo in Rockland County, New York. Its
incorporation in April 1991 is the most recent sign of a
"village movement" within the Township which has apparently
been animated by the desire of local residents to exert control
over their immediate living area. The Town currently has eleven
incorporated villages within its borders. An incorporated
village controls the tax base within its boundaries and has the
authority to execute its own zoning laws, run schools, operate
police, fire, water and sewage departments and regulate the use
of the streets.
Plaintiffs in this case are Orthodox Jewish residents of a
development called Park Avenue Estates. The nearest Orthodox
synagogue is located over a mile away but even if plaintiffs
were able to safely walk that distance, they cannot join that
congregation because additional membership would take the
synagogue above its legal capacity. Accordingly, Rabbi
Sternberg applied to the Ramapo Zoning Board for permission to
establish a professional home office in a portion of his
residence, where, among other uses, the Orthodox Jewish
residents of his neighborhood could gather for worship. Such
uses are permitted with some restrictions in the Town of Ramapo
and permission was granted. It is the usage of Rabbi
Sternberg's home as a place of worship for eight local families
that, plaintiffs contend, lies at the heart of this suit.
The events relevant to this action began in 1986, when a
group of citizens formed an organization known as the Airmont
Civic Association ("ACA"). Plaintiffs allege that the express
purpose behind the formation of ACA was to form a village and
elect ACA members to office in order to impose strict zoning
which would exclude, discourage and prevent Orthodox Jewish
residential neighborhoods from developing in Airmont. All of
the Airmont defendants*fn1 joined and were active in ACA over
the course of time. Plaintiffs claim that anti-Orthodox
sentiments were expressed at ACA meetings and that ACA became
known as an organization dedicated to excluding Orthodox Jews
from Airmont. In furtherance of that goal, plaintiffs assert
that ACA members openly opposed the formation of Jewish houses
of worship in the Airmont area, publicly voiced their
opposition to Orthodox Jewish families moving into the village
area, and at times monitored attendance at local synagogues
which the attenders reportedly found intimidating.
Around the same time that ACA became active in local matters,
a group of citizens signed a petition to incorporate Airmont.
ACA supported the incorporation and indeed it appears that the
incorporation movement was driven by ACA and its activities.
Plaintiffs allege that ACA and defendants Cucolo, Kendrick, and
Layne, in concert with others, were responsible for drawing
village boundaries which would further their exclusionary goal.
A hearing regarding incorporation was held on April 1, 1987
and the Ramapo Town Supervisor, defendant Herbert Reisman,
approved the petition after determining that it complied with
state law. After a court challenge, a referendum was held in
January 1989 in which the incorporation was approved by over
70% of the voters. Another court challenge to the village's
incorporation failed and the Secretary of State signed the
certification of incorporation for the Village on April 10,
1991. A Village Clerk was appointed and election of village
officials was scheduled for May 16, 1991. In an attempt to
preempt the functioning of the village, plaintiffs filed this
complaint and by order to show cause, moved for a preliminary
injunction seeking to enjoin the election. See
LeBlanc-Sternberg v. Fletcher, 763 F. Supp. 1246 (S.D.N Y
The injunction was denied on the grounds that plaintiffs had
not made an adequate showing of irreparable harm, id., 763
F. Supp. at 1251-52, and the election took place as scheduled.
The entire ACA
slate of candidates was elected*fn2 despite two other slates
of candidates being presented. No zoning laws have yet been
adopted by the Village although Airmont is obligated to pass
its own code by February.*fn3
Before us now is a motion by defendants Kendrick, Fletcher,
Kane, Cuculo, Vertullo, Layne, ACA and the Village of Airmont
("the Airmont defendants") to dismiss the second amended
complaint. They argue that there is no justiciable controversy
with respect to the first amendment and fair housing claims
because plaintiffs lack standing and that, in any event, those
claims are not ripe. They also contend that the defendants'
actions are fully immunized by the first amendment and that
plaintiffs have failed to state a claim upon which relief can
On a motion pursuant to Federal Rule of Civil Procedure
12(b)(6), the complaint's claims are taken "at face value,"
California Motor Transport Co. v. Trucking Unlimited,
404 U.S. 508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642 (1972), and
dismissal is warranted only if "it appears beyond doubt that
plaintiff can prove no set of facts in support of his claim
which would entitled him to relief." Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). With these
standards in mind, we turn to examine the sufficiency of the
At the outset, we must address the contention by the
individual Airmont defendants and ACA that their actions in
seeking incorporation of Airmont are protected by the first
amendment right to "petition the Government for a redress of
grievances." U.S. Const., Amend. I.
Villages are voluntary corporations organized by the action
of their own inhabitants for their own local benefit.
Nassau County v. Lincer, 165 Misc. 909, 3 N.Y.S.2d 327, rev'd
on other grounds, 254 A.D. 746, 254 A.D. 760, 4 N.Y.S.2d 77
(1938). In New York, incorporation begins with a petition
signed by local residents which contains a minimal amount of
information such as the basis on which the petition is signed.
N Y Village Law § 2-202(1)(b)(1) (McKinney 1973 and Supp.
1991). After satisfaction of notice provisions, id. § 2-204, a
hearing is held to determine the sufficiency of the petition.
The Town Supervisor, within his or her discretion, determines
the legal sufficiency of the petition which can then be
challenged through an article 78 proceeding. Id. § 2-210. After
approval by the Supervisor, an election is held — if the
incorporation is approved by the majority of the affected
residents, the state comptroller certifies the incorporation.
These procedures were followed in the incorporation of Airmont.
Thus, defendants maintain that in circulating the petition,
advocating for the incorporation and voting for its passage in
the election, they were doing nothing more than petitioning for
redress of grievances in exercise of their first amendment
The right to petition is fundamental to the very idea of a
republican form of government. United States v. Cruikshank, 92
U.S. (2 Otto) 542, 552, 23 L.Ed. 588 (1875). Indeed, this right
is "among the most precious of the liberties safeguarded by the
Bill of Rights . . . [and is] intimately connected, both in
origin and in purpose, with the other First Amendment rights of
free speech and free press." United Mine Workers of America,
District 12 v. Illinois State Bar Association, 389 U.S. 217,
222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426 (1967).
The safeguards of the first amendment are not contingent upon
the nature of the views expressed. "[T]he Constitution protects
expression and association without regard to the race, creed,
or political or religious affiliation of the members of the
group which invokes its shield, or to the truth, popularity, or
social utility of the ideas and beliefs which are offered."
N.A.A.C.P. v. Button, 371 U.S. 415, 444-45, 83 S.Ct. 328, 344,
9 L.Ed.2d 405 (1963). See also New York Times v. Sullivan,
376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964)
("Debate on public issues should be uninhibited, robust and
wide-open and . . . it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks."); Weiss v. Willow Tree
Civic Ass'n, 467 F. Supp. 803, 818 (S.D.N.Y. 1979) ("[People]
have every right to band together for the advancement of
beliefs and ideas, however unpalatable the ideas or whatever
the underlying motive."). Moreover, the protection of the first
amendment is available regardless of the motivation or intent
underlying the speech. Eastern Railroad Presidents Conference
v. Noerr Motor Freight, 365 U.S. 127, 139, 81 S.Ct. 523, 530, 5
L.Ed.2d 464 (1964). Thus, although the plaintiffs contend that
discriminatory intent underlay the Airmont defendants' petition
for incorporation, the defendants suggest that such activity is
nevertheless protected. In their view, the chain of events
initiated by the petition of the Airmont defendants and other
residents is nothing more than the democratic process resulting
in the transformation of government.
Resort to administrative, legislative, political or judicial
processes is protected by the first amendment so long as the
petitioner is concerned with obtaining relief afforded by the
system. City of Columbia v. Omni Outdoor Advertising, Inc., ___
U.S. ___, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991); California
Motor Transport. Co. v. Trucking Unlimited, 404 U.S. 508, 92
S.Ct. 609, 30 L.Ed.2d 642 (1972); Noerr, 365 U.S. 127, 81 S.Ct.
523. Even if the seeking of relief is animated by malevolence
or self-interest, the first amendment protects the right to
petition of the person whose activities are genuinely aimed at
procuring favorable government action. Omni, 111 S.Ct. at 1354
(quoting Allied Tube & Conduit Corp. v. Indian Head, Inc.,
486 U.S. 492, 500 n. 4, 108 S.Ct. 1931, 1937 n. 4, 100 L.Ed.2d 497
(1988)). On the other hand, if ...