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December 4, 2002


The opinion of the court was delivered by: William Conner, United States District Judge.


Plaintiff Westchester Day School ("WDS"), brings this action against defendants Village of Mamaroneck, the Zoning Board of Appeals of the Village of Mamaroneck ("ZBA"), and Antonio Vozza. James Gaita, George Mgrditchian, Barry Weprin and Clark Neuringer, in their official capacity as members of the ZBA. Plaintiff seeks relief under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. ("RLUIPA"), as well as under 42 U.S.C. § 1983 alleging unlawful and unconstitutional burdens being imposed by defendants to obstruct the school's right to construct a new school building.

Defendants have moved to dismiss plaintiff's complaint pursuant to FED. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff has cross moved for partial summary judgment under FED. R. Civ. P. 56 on the issue of whether the actions taken by defendants at a meeting of the ZBA on August 1, 2002 are void and unenforceable. For the reasons discussed below, plaintiff's motion for partial summary judgment is granted, thereby rendering moot defendants' motion to dismiss.


Since 1948, WDS has held a special permit to operate an Orthodox Jewish day school on a 25.75-acre property in the Orienta Point neighborhood of the Village of Mamaroneck (the "Property"). (Hammerman Aff. ¶ 5.) In October 2001, WDS submitted an application for a modification of its special permit to allow it to construct a new classroom structure to connect two of the existing school buildings and to renovate two of the school buildings (the "Project"). (Id. ¶ 9.) Public hearings on the application were held by the ZBA between November 1, 2001 and February 7, 2002. During this time, the ZBA requested and received comments from professional planning and traffic engineering consultants as well as from various agencies. (Pl. Rule 56.1 Stmt. ¶ 68.) On December 6, 2001, the ZBA voted unanimously to designate itself as the "lead agency" on the Project for purposes of the State Environmental Quality Review Act ("SEQRA"). (Hammerman Aff. ¶ 6.) On February 7, 2002, the five member Board of Appeals voted unanimously to issue the school a "negative declaration" — a determination by the ZBA that no significant adverse environmental impacts will result and that no Environmental Impact Statement ("EIS") process is required. (Id. ¶ 17.)

Shortly thereafter, an outcry of community opposition arose and on April 4, 2002, the ZBA voted unanimously to hold a rehearing to review its "negative declaration" determination. During the rehearing period, additional public hearings were held. Plaintiff maintains that these hearings uncovered no new information relating to any significant adverse environmental impacts of the Project. (Complt. ¶ 5.) Defendants argue that new information was brought to the ZBA's attention that significantly affected its decision with respect to both the environmental impact of the Project and its effects on the public safety, specifically concerning congestion of an emergency evacuation route. (Defs. Mem. Supp. Mot. Dismiss at 23.) On August 1, 2002, the ZBA voted separately under both New York State Village Law and SEQRA to rescind the "negative declaration" and to issue a positive declaration, which would require WDS to prepare a full EIS prior to issuance of the special permit. (Pl. Rule 56.1 Stmt. ¶ 68.) Under SEQRA 6 NYCRR § 617.7(f), the ZBA voted three to two in favor of rescinding the "negative declaration." Under New York Village Law ("Village Law") § 7-712-a(12), the ZBA voted three to two against rescission. Pursuant to the SEQRA vote, the ZBA has taken the position that it has effectively rescinded the "negative declaration" and has required plaintiff to begin the EIS process.

The parties disagree as to whether Village Law or SEQRA governs the rescission of the "negative declaration." Plaintiff claims that the rescission by the ZBA of its "negative declaration" is void and unenforceable because the rehearing was held under the provisions of Village Law § 7 712-a(12) which requires a unanimous vote of all present members to effectively rescind a "negative declaration". Plaintiff further argues that even if the ZBA was acting under SEQRA, the vote was nevertheless unenforceable as there was no new information discovered nor were there any changes in circumstances not previously considered by the ZBA when it voted to issue the "negative declaration," as required under § 617.7(f).

Defendants claim that SEQRA governs the rescission of the "negative declaration" and therefore, a unanimous vote of the ZBA was not necessary in rescinding the "negative declaration" and issuing a positive declaration. (Defs. Mem. Supp. Mot. Dismiss at 17.) Additionally, defendants argue that they acted in accordance with SEQRA provision 617.7(f) because new information was brought to the ZBA's attention that significantly impacted its decision to issue the "negative declaration." (Id. at 23.)

As the Court's decision on plaintiff's summary judgment motion may be dispositive with respect to defendants' motion to dismiss, the Court will first address plaintiff's motion.*fn1


I. Summary Judgment Standard

Plaintiff moves for partial summary judgment pursuant to FED. R. Ciy. P. 56. Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file. together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 254 (E.D.N.Y. 1999). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Ticali, 41 F. Supp.2d at 254. In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See Anderson, 477 U.S. at 255. Summary judgment is warranted when the nonmovant has no evidentiary support for an essential element on which it bears the burden of proof. Celotex, 477 U.S. at 322-23; Silver v. City Univ. of N.Y., 947 F.2d 1021, 1022 (2d Cir. 1991).

II. Village Law v. SEQRA

Plaintiff claims that Village Law § 7-712-a(12) governs the rescission of the "negative declaration" and therefore the ZBA's three-to-two vote in favor of rescission at the August 1, 2002 meeting failed to satisfy the provision s unanimous vote requirement, rendering void the ZBA's subsequent issuance of a positive declaration. (Pl. Mem. Supp. Summ. J. at 1-2.) Defendants argue that SEQRA § 617.7(f) governs. According to defendants, because this section does not mention a voting requirement, a majority vote was ...

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