current Mayor and Trustees, the Government acknowledges that it cannot point to any significant actions taken by them. However, the Government argues, in effect, that the Village was conceived in sin and cannot escape the taint of its illegitimate birth.
The Government arrives at its rather tenuous arguments by stringing together a series of earlier authorities. It argues first that elected officials cannot conceal their motivations by clever or subtle behavior, citing United States v. City of Black Jack, 508 F.2d 1179, 1184-85 (8th Cir. 1985). They cite Casa Marie, Inc. v. Superior Court of Puerto Rico for the District of Arecibo, 988 F.2d 252, 257 n.6 (1st Cir. 1993) for the proposition that the discriminatory use of zoning laws is contrary to the Fair Housing Act.
But, concerning home synagogues, there has been no substantial change from the zoning laws of Ramapo to Airmont and no applications even presented to its Planning Board. The Government notes that if a defendant ceases illegal conduct after the filing of a lawsuit challenging the conduct that the cessation of the illegality does not prevent the imposition of injunctive relief. United States v. Oregon Medical Society, 343 U.S. 326, 333, 96 L. Ed. 978, 72 S. Ct. 690 (1952) That is undoubtedly true. However, it assumes prior illegal conduct which, from the standpoint of the Village and its Trustees in their official capacity, has not been established.
Faced with this problem, the Government resorts to the claim that "an injunction may issue to prevent future wrong, although no right has yet been violated," citing Swift & Co. v. United States, 276 U.S. 311, 326, 72 L. Ed. 587, 48 S. Ct. 311 (1928). That language does appear in Swift but in a context totally different from this. In that case, the Government had sued Swift & Co. under the antitrust laws. The parties thereafter entered into a consent decree providing that the court could entertain, at any time thereafter, any application which the parties might make with respect to it. Four years later the defendant moved to vacate the consent decree, arguing that there had been no case or controversy sufficient to afford the court jurisdiction over the matter under Section 2, Article 3 of the Constitution when the consent decree was entered. It was in response to that argument that the court held that an injunction could issue to prevent future wrong although no right had yet been violated. That principle has nothing to do with the claims of the Government against the Village of Airmont which never entered into any consent decree.
Viewing the evidence in the light most favorable to the Government, we can foresee that the Planning Board and the Zoning Board of Appeals (to the extent the matter might be submitted to it) will not adopt the Ramapo interpretation of the home professional office exception.
It may also be true that the absence of actions by the Village and its officials adverse to Orthodox and Hasidic Jewish interests has been due in part to the existence of the three lawsuits. However, it may equally be true that, having learned the extreme costs of litigation from these lawsuits, the Village will have no interest in taking actions against residential synagogues or doing anything else which has an adverse effect on the availability of housing for Orthodox or Hasidic Jews. Clearly, if there is any action taken in the future which violates their rights, the United States Government and other plaintiffs will not be timorous about suing. Consequently, we see no basis or need for injunctive relief. Moreover, were we to grant injunctive relief, it would not be in the manner requested by the Government.
The Government's requests fall into three categories. The first part would enjoin the defendants from denying the constitutional and legal rights of persons on account of their religion. Such injunctive relief is unnecessary since it would be enjoining acts which are already illegal. The second portion of their request for injunctive relief concerns zoning code changes which are drafted in such a manner as to be obviously of benefit only to Orthodox Jews.
If the court were to draft zoning code changes with respect to residential houses of worship, the changes would not be confined to those favorable only to the Orthodox.
Finally, the third portion of the request seeks "other affirmative relief" which includes a requirement that the Village notify "in advance, counsel for the United States of all meetings of the Village Planning Board and Village Zoning Board of Appeals and . . . provide copies of the agendas of those meetings to counsel for the United States in advance of the meetings." The overwhelming majority of matters which come before Planning and Zoning Boards have nothing whatever to do with the rights of minority religious groups. To impose such a restriction would be egregious overkill. In addition, the Government seeks that the Village remove James Montone from his position as a member of the Village Planning Board "effective immediately." Mr. Montone is not a party to this litigation. Indeed, he was not even a witness in this case. To invoke such a remedy against him without notice or an opportunity to be heard would clearly be in violation of his rights.
The zoning laws are, of course, required to be accommodating of religious exercises. Moreover, if the zoning laws make the exercise of religion inaccessible to practioners they may amount to a violation of First Amendment rights. Islamic Center of Miss. v. Starkville, Miss., 840 F.2d 293 (5th Cir. 1988). However, the Government's request for injunctive relief would eliminate any restriction upon home synagogues, which could literally be opened in every Orthodox house. First Amendment rights are not so all consuming, and the common good requires that some religious practices must yield. United States v. Lee, 455 U.S. 252, 258-59, 71 L. Ed. 2d 127, 102 S. Ct. 1051 (1982). The free exercise of religion does not give worshipers a veto over government programs or regulations which do not prohibit free exercise of religion. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 452, 99 L. Ed. 2d 534, 108 S. Ct. 1319 (1987). A zoning code may require that a proposed church show that its use is compatible with the neighborhood, will not be detrimental to the health, safety and general welfare of the residents, and that the use will otherwise comply with the zoning code or a city's master plan. There is a strong interest in maintaining integrity of zoning schemes providing that they do not unduly impair the practice of religion. Christian Gospel Church, Inc. v. City and County of San Francisco, 896 F.2d 1221 (9th Cir. 1990).
Of course, a zoning regulation which has as its purpose the inhibition of the practice of religion may be unconstitutional on its face. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 124 L. Ed. 2d 472, 113 S. Ct. 2217 (1993). However, requirements limiting the construction of a house of worship do not necessarily restrict the practice of religion, which may be carried on in other locations. Messiah Baptist Church v. County of Jefferson, Colo., 859 F.2d 820, 825 (10th Cir. 1988) (noting that "building and owning a church is a desirable accessory of worship, not a fundamental tenet of the congregation's religious beliefs"). In this case there is evidence that the congregants have continued to assemble and worship even without approval of the Friedman synagogue and at other locations.
Appellate courts have specifically upheld zoning codes which prohibited the operation of Orthodox Jewish home synagogues which were located in a single family district. Grosz v. City of Miami Beach, Fla., 721 F.2d 729, 741 (11th Cir. 1983). There, the court balanced the cost to the government of making a zoning exception against the cost to the desired religious activity of conducting services in compliance with applicable zoning restrictions or relocating to a suitably zoned district. After noting that the zoning requirements were similar to regulations of place and manner of religious expression, which are permissible so long as the regulation is reasonable and there is no content classification, the court found the balancing test to favor the government. In Grosz, one-half of the city's residential zones were available for religious institutions. However, in other cases, zoning ordinances prohibiting construction of churches in residential neighborhoods have been upheld even though as little as 10% of the city was available for religious institutions. Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, Ohio, 699 F.2d 303 (6th Cir. 1983), cert. denied, 464 U.S. 815, 78 L. Ed. 2d 85, 104 S. Ct. 72 (1983). (The Court in that case also noted that the building of a church was not a fundamental tenet of the religion ordinance did not prevent the practice of religion, but merely created an indirect financial burden.)
The desires of Orthodox Jews in the Town of Ramapo have been before this court in the past. In Weiss v. Willow Tree Civic Ass'n, 467 F. Supp. 803 (S.D.N.Y. 1979), the late Judge Edward Weinfeld described the case as being essentially a local zoning dispute despite the variety of claims charging violation of the plaintiffs' federal statutory and constitutional rights. In Weiss, the plaintiffs were a congregation of Hasidic Jews who desired to establish a housing development on land in the Town of Ramapo and claimed, much as do the private plaintiffs here, that a civic association and its members conspired and acted to harrass and delay their application to the zoning authorities to permit the proposed housing development. The complaint alleged no state or municipal activity and all of the defendants were private parties -- which was the status of this case to the extent that it concerns events prior to the formation and operation of the Village of Airmont. As here, it was claimed that the Civic Association and its members acted jointly with the Town Supervisor, Herbert Reisman (who was originally a defendant in this action) to deprive the plaintiffs of their constitutional rights in a manner similar to that set forth here and dismissed earlier by the Court.
In addition to finding an absence of state action, Judge Weinfeld found
other considerations of more compelling force require dismissal of the complaint. A fair reading of [the complaint's] allegations makes it clear that plaintiffs' claims under Sections 1982, 1983 and 1985(3) are inextricably bound up with the defendants' exercise of First Amendment rights of assembly, petition and association.
467 F. Supp. at 816. As in this case, the plaintiffs argued that the First Amendment rights of the defendants must be ignored since their real motivation was to pressure town officials and harrass the plaintiffs. Judge Weinfeld rejected this argument stating that the protection of the First Amendment
does not depend on "motivation"; it depends on the nature of defendants' conduct. Defendants' activities described in the complaint fall squarely under the protection of the First Amendment's guarantees of citizens' rights "peaceably to assemble and to petition the Government for a redress of grievances." (Footnote omitted.)