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December 24, 1991


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.

According to the complaint, roughly 23% of the population of Ramapo is Orthodox Jewish. (The total Jewish population is substantially higher.) Because on the Jewish Sabbath and on some religious holidays driving motor vehicles is prohibited for Orthodox Jews, they tend to live near their community places of worship so that they may gather to pray within safe walking distance of their homes.

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 1991).

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 be granted.

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 complaint.


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 privileges.

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 ...

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