MEMORANDUM OF DECISION ON VARIOUS MOTIONS
These consolidated actions arise from the denial by the Village of Suffern Zoning Board of Appeals*fn1 of an application for a zoning variance that would permit plaintiffs Bikur Cholim, Inc., Rabbi Simon Lauber and the Fellowship House of Suffern, Inc. (collectively "Bikur Cholim") to use their property in Suffern, New York as a guesthouse for observant Jewish visitors to Good Samaritan Hospital in Suffern.
Bikur Cholim, together with Malka Stern, Michael Lippman, Sara Halperin, Abraham Langsam and Jacob Levita (collectively "private plaintiffs"), commenced this action on December 23, 2005. The United States of America filed suit on September 26, 2006. These actions were then consolidated.
Now pending before the Court are (1) private plaintiffs' motion for a preliminary injunction (Doc. #4);*fn2 (2) private plaintiffs' second motion for a preliminary injunction (Doc. #17); (3) defendant Village of Suffern's motion to dismiss private plaintiffs' complaint and for a preliminary injunction (Doc. #23); (4) defendant's motion to dismiss the United States' complaint (Doc. #88; 7:06-cv-7713, Doc. #3); (5) the United States' motion for summary judgment or, in the alternative, for a preliminary injunction (Doc. #133); (6) defendant's motion for summary judgment (Doc. #142); and (7) private plaintiffs' motion to strike (Doc. #151).
Plaintiffs have brought this action pursuant to the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. ("RLUIPA"). The Court has jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and the pendent state claims pursuant to 28 U.S.C. § 1367. The United States is authorized to bring claims pursuant to 42 U.S.C. § 2000cc-2(f).
Because the relevant factual background is different for the motions to dismiss and the motions for summary judgment, the Court will review the facts and allegations pertinent to each separately.
A. Background on Motions to Dismiss
For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations of the complaint as true.
1. Private Plaintiffs' Amended Complaint (Doc. #22)
Plaintiff Bikur Cholim, Inc. is a New York not-for-profit corporation. Since 1988, it has sought to accommodate the religious exercise of Jewish families of patients at three hospitals, including Good Samaritan Hospital in Suffern. Plaintiff Rabbi Simon Lauber is the Founder and Executive Director of Bikur Cholim, Inc. Plaintiff Fellowship House of Suffern, Inc. owns the facility in Suffern and leases it to Bikur Cholim for ten dollars per month. The facility ("Shabbos House") is located at 5 Hillcrest Road in Suffern. Plaintiffs Malka Stern, Sara Halperin, Michael Lippman, Abraham Langsam and Jacob Levita are observant Jews who have used, currently use or expect to use the Shabbos House.
Jewish law prohibits travel on the Sabbath -- from sunset on Friday to sunset on Saturday. This prohibition includes a prohibition from operating, driving or riding in a motor vehicle. In addition, Jewish law prohibits using electricity or spending money on the Sabbath. These restrictions also apply to the approximately ten holy days throughout the Jewish year which have similar restrictions as the Sabbath.
Bikur cholim is a Jewish commandment to visit the sick. Observant Jews believe that bikur cholim is one of the most important commandments.
The Shabbos House provides overnight accommodations for those unable to travel on the Sabbath to visit patients at Good Samaritan Hospital. Its use is limited to Friday nights and the ten holy days. Bikur Cholim does not charge its guests for stays. Rabbi Lauber claims that the operation of this house is a fundamentally important aspect of his religious exercise and is motivated by his sincere religious beliefs. He further alleges that forcing him to discontinue his administration of the Shabbos House would substantially burden his religious exercise.
Private plaintiffs contend that some patients would not seek treatment were it not for Bikur Cholim's accommodation of their family members and visitors. Sabbath, holiday and daily prayers are held at the Shabbos House.
From 1998 until 2000, the Shabbos House was located at a different site in a residential neighborhood. It was then housed inside Good Samaritan Hospital until 2005 when it moved to its current location. On April 26, 2005, Village Code Enforcement Officer John Loniewski issued violation notices under Suffern's Building and Zoning Code section 205-3(A)(3) citing the presence of "cardboard boxes, garbage, pizza boxes, fast food wrappers and construction debris" on the porch. Loniewski also issued a notice violation under section 266-22(B) of the Building and Zoning Code for a "use not in compliance with the certificate of Occupancy on File," which certificate was issued for an "erect single family dwelling." On May 9, an Order to Remove Violation was issued for a May 6 use violation.
On July 7, 2005, Loniewski issued a violation under Building and Zoning Code section 205-3(A)(4) citing "old wood slats, paper bags, broken ceramic tiles and garbage," which, private plaintiffs contend, were being stored under the house's back porch. Loniewski also issued a violation notice under section 205-3(A)(5) for "overgrown bushes and shrubs" and "the lawn not ... mowed and many dead tree limbs." Private plaintiffs assert that the bushes were not overgrown and that the grass was newly planted and could not yet be mowed.
Private plaintiffs allege that while the Shabbos House was receiving property maintenance violations, the property at 7 Hillcrest Road was littered with debris and garbage and no violations were issued.
On July 12, Loniewski entered the Shabbos House by following a staff member. He issued a violation under section 404.4.1 of the New York Property Maintenance Code because there were too many beds in the master bedroom given the square footage of the room. On August 1, Loniewski issued a violation notice under section R317.1 of the New York Residential Code citing "no smoke alarms in the sleeping rooms formerly designated as the den and the dining room." All fines except for the one for the improper use violation were resolved in August 2005 by correction of the problem and payment of $2,500 in fines. The improper use violation was held in abeyance conditional upon the Shabbos House applying for a use variance before the Zoning Board of Appeals, which application occurred on August 1, 2005.
The Shabbos House is located in an "R-10" zoning district. Such zoning allows use by right of the property for one-family detached dwellings and places of worship. By special permit, the following are allowed in an R-10 district: public utility building substations, utility lines and poles serving 25 or more kilowatts; standpipes and water towers; public and private hospitals and sanitariums; convalescent and nursing homes; private membership clubs; public schools; colleges; dormitories accessory to schools; private and public elementary or secondary schools; nursery schools; daycare centers; and home occupations. Sections 266-2 and 266-33(F) permit dormitories in the R-10 zoning district "only as accessory uses to schools of general or religious instruction...." Bikur Cholim's use was not considered a "dormitory." There is no zoning district within Suffern that permits "transient/motel uses" or temporary accommodations. Private plaintiffs assert there is no other location within reasonable and safe walking distance that could house Good Samaritan Hospital patients or their family members and that there are no available alternate locations in Suffern where Bikur Cholim may locate the Shabbos House.
On August 2, 2005, Bikur Cholim submitted an application for a use variance to continue operating the Shabbos House in the R-10 zone. The application sought a variance from Suffern Zoning Law section 266-22(B) which states that "[o]nly those uses listed for each district as being permitted shall be permitted. Any use not specifically listed as being permitted shall be deemed to be prohibited." The application requested use of: a one family residence for overnight occupancy for up to 17 people, who are family members of the patients at Good Samaritan Hospital. Overnight occupancy will be limited to Fridays and approximately 10 Jewish Holiday days, when travel is not permitted. There is no charge for cover.... The accommodations are offered, without charge as a community service. This service is offered in conjunction with Good Samaritan Hospital....
Bikur Cholim asserts that it is willing to limit the occupancy of the Shabbos House to fourteen individuals. The application claims that the variance was necessary for a "community hardship."
Suffern defined Bikur Cholim's use as a "transient/motel use." There is no definition for "transient/motel use" in Suffern's Zoning Law. Under Zoning Law section 266-54(D)(3), the Village Board of Appeals may grant a use variance upon "a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship." To show such hardship under section 266-54(D)(3)(a), the applicant must demonstrate that: (1) it cannot realize a reasonable return, provided that the lack of return is substantial as demonstrated by competent financial evidence; (2) the alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood in which it is located; (3) the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) the alleged hardship has not been self-created." Section 266-54(D)(1) provides that the "Board of Appeals is authorized to vary or modify the strict letter of this Zoning Law where its literal interpretation would cause practical difficulties or unnecessary hardships in such manner as to observe the spirit of the law, secure public safety and welfare and do substantial justice." The Zoning Board of Appeals unanimously denied Bikur Cholim's application on November 17, 2005, which decision was filed with the Village Clerk on November 29.
Private plaintiffs bring claims under RLUIPA for substantial burden on religious exercise, 42 U.S.C. § 2000cc(a); for nondiscrimination, 42 U.S.C. § 2000cc(b)(2); for "equal terms," 42 U.S.C. § 2000cc(b)(1); and for "exclusion and limits," 42 U.S.C. § 2000cc(b)(3). They also assert that their rights under the Free Exercise and Free Association Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution were violated, and they assert claims under 42 U.S.C. § 1983. Finally, they allege that their rights under the New York State Constitution were violated. They seek declaratory and injunctive relief.
In its answer to private plaintiffs' amended complaint, defendant asserts a counterclaim that private plaintiffs' use of the property is an illegal use and a violation of Suffern Village Code chapters 162 and 205.
2. The United States' Complaint (7:06-cv-7713, Doc. #1)
The United States' complaint alleges that the Zoning Board's denial of Bikur Cholim's variance application and Suffern's enforcement of such denial constitute an imposition or implementation of a land use regulation within the meaning of RLUIPA, 42 U.S.C. § 2000cc(a)(1), and that such denial and enforcement substantially burden the religious exercise of Orthodox Jews who need to visit the sick at Good Samaritan hospital while observing religious proscriptions against driving on the Sabbath and other Holy Days. The United States further claims that such denial and enforcement of the Zoning Law do not further a compelling government interest, and even if they did, they are not the least restrictive means of doing so.
The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the grounds upon which the claim rests through factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). A plaintiff is obliged to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (applying flexible "plausibility standard" to Rule 8 pleading), rev'd on other grounds sub nom., Ashcroft v. Iqbal, 129 S.Ct. 1937.
For purposes of ruling on the motions to dismiss, the Court only reviews the pleadings and the exhibits to them. Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993). Additional facts submitted in a motion to dismiss, or exhibits thereto, are not reviewed by the Court at this stage. Further, the Court accepts as true all allegations of fact, but not conclusory statements of law. Ashcroft v. Iqbal, 129 S.Ct. at 1949 ("[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.").
1. Motion to Dismiss Private Plaintiffs' Amended Complaint
a. Whether Private Plaintiffs' Claims are Ripe
Defendant first argues that private plaintiffs' claim under RLUIPA is not ripe because Bikur Cholim's application for a variance before the Zoning Board offered perfunctory and insufficient evidence. Defendant also asserts that Bikur Cholim failed to appeal the Code Enforcement Officer's determination that its use was not permissible to the Zoning Board of Appeals. Instead, Bikur Cholim sought a use variance. Private plaintiffs argue in response that (1) their facial challenge to the zoning law has no finality requirement; (2) Bikur Cholim's citation for improper use became final once it did not appeal the citation to the Zoning Board of Appeals; (3) the Zoning Board of Appeals' denial of Bikur Cholim's use variance constitutes a final decision that may be challenged before this Court; (4) its proposed use would not meet a stated exception to the zoning law; (5) the adequacy of Bikur Cholim's variance application is irrelevant to the ripeness analysis; and (6) by seeking a preliminary injunction, defendant has made these issues ripe for adjudication.
The question of ripeness raises issues of Article III's case or controversy requirement as well as prudential limitations on the exercise of judicial authority. See Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 733 n.7 (1997). It requires a determination of whether the Court should defer until such time as the claims have matured into a more appropriate form before the Court. Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967).
In a land use case like this one, four factors are relevant to the ripeness analysis. Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985).*fn3 As the Court explained in Murphy v. New Milford Zoning Comm'n, 402 F.3d 342 (2d Cir. 2005):
First, ... requiring a claimant to obtain a final decision from a local land use authority aids in the development of a full record. Second, and relatedly, only if a property owner has exhausted the variance process will a court know precisely how a regulation will be applied to a particular parcel. Third, a variance might provide the relief the property owner seeks without requiring judicial entanglement in constitutional disputes. Thus, requiring a meaningful variance application as a prerequisite to federal litigation enforces the long-standing principle that disputes should be decided on non-constitutional grounds whenever possible. Finally..., federalism principles also buttress the finality requirement. Requiring a property owner to obtain a final, definitive position from zoning authorities evinces the judiciary's appreciation that land use disputes are uniquely matters of local concern more aptly suited for local resolution.
There are, however, exceptions to the rule of ripeness. Where an appeal to a zoning board would be futile, the plaintiff need not appeal to that board. Southview Assoc., Ltd. v. Bongartz, 980 F.2d 84, 98 (2d Cir. 1992); see also Murphy, 402 F.3d at 349 ("[A] property owner need not pursue such applications when a zoning agency ... has dug in its heels and made clear that all such applications will be denied."). In general, however, failure to seek a variance prevents a zoning decision from becoming ripe. Williamson, 473 U.S. at 190.
As to defendant's first argument in support of its claim that this controversy is not yet ripe -- that Bikur Cholim's application for a variance was perfunctory -- the merits of the Zoning Board's rejection of the application is not properly before the Court on a motion to dismiss. Whether the application was inadequate and properly dismissed on its merits or was adequate and was rejected in violation of RLUIPA is a fact-based question better suited for summary judgment. What matters at this stage is whether private plaintiffs adequately pleaded that their variance was denied. That, they did. See Amended Complaint ¶ 62.
The crux of defendant's claim that this case is not yet ripe is that Bikur Cholim did not appeal Loniewski's violation notice under Building and Zoning Code section 266-22(B) issued on April 26, 2005. The Court disagrees and finds Bikur Cholim's failure in this regard to be irrelevant. First, private plaintiffs claim that the violation was held in abeyance pending the application for a use variance. Second, and more importantly, after this violation, Bikur Cholim sought a use variance from the Zoning Board of Appeals, which was denied.
A case is ripe when the court "can look to a final, definitive position from a local authority to assess precisely how they can use their property." Murphy, 402 F.3d at 347. The Court can look at the Zoning Board of Appeals' decision as a definitive ruling on how Bikur Cholim can use its property. It is the denial of the application that serves as the basis for jurisdiction before the Court.
b. Whether Private Plaintiffs Have Sufficiently Alleged a Violation of RLUIPA
Defendant next moves for dismissal arguing that private plaintiffs have failed to allege a prima facie case of a violation under RLUIPA. RLUIPA prohibits a government from "impos[ing] or implement[ing] a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person ... or institution, unless the government demonstrates that imposition of the burden on that person ... or institution is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc(a)(1); Westchester Day Sch. v. Vill. of Mamaroneck, 386 F.3d 183, 186 (2d Cir. 2004) ("Westchester Day Sch. I"). "Religious exercise" is defined to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). "The use, building, or conversion of real property for the purpose of religious exercise shall be considered ... religious exercise." 42 U.S.C. § 2000cc-5(7)(B). "Religious exercise" under RLUIPA is to be defined broadly and "to the maximum extent permitted by the terms of this chapter and the Constitution." Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 347 (2d Cir. 2007) ("Westchester Day Sch. III"); 42 U.S.C. § 2000cc-3(g).
To state a claim for violation of RLUIPA, plaintiffs must present evidence that the land use regulation at issue as implemented: (1) imposes a substantial burden (2) on the "religious exercise" (3) of a person, institution, or assembly. 42 U.S.C. § 2000cc(a)(1); Westchester Day Sch. v. Vill. of Mamaroneck, 379 F. Supp. 2d 550, 555 (S.D.N.Y. 2005) ("Westchester Day Sch. II"); Murphy v. Zoning Comm'n of the Town of New Milford, 148 F.Supp. 2d 173, 187 (D. Conn. 2001). If plaintiffs are successful in making that prima facie showing, the burden shifts to the government to demonstrate that the regulation furthers a compelling governmental interest and is the least restrictive means of furthering that compelling interest. 42 U.S.C. § 2000cc(a)(1)(A-B).
Accepting the factual allegations of the amended complaint as true, the Court must conclude that private plaintiffs have established a prima facie claim under RLUIPA. First, they have sufficiently alleged that the denial of a use variance is a substantial burden to their practice of Orthodox Judaism. They claim that the inability to operate the Shabbos House burdens their religion in two ways. As to Rabbi Lauber, they claim that the commandment of bikur cholim requires him to operate the house. As to plaintiffs Stern, Lippman, Halpern, Langsam and Levita, private plaintiffs assert that their religion is substantially burdened by being forced to choose between observing the Sabbath and holidays and visiting the sick at Good Samaritan Hospital. They further allege that they are being discouraged from seeking treatment at Good Samaritan Hospital by the inability to find nearby accommodations.*fn4
As to the religious exercise prong, the Court of Appeals in Westchester Day Sch. III commented that the district court must examine whether a particular use by a religious organization was for a religious purpose, such as prayer, or a secular purpose, such as a gymnasium in a religious school. See Westchester Day Sch. III, 504 F.3d at 347-48. If the improvement or building is to be used for religious education or practice, land use regulations related to it could affect the land users' religious exercise. See id. at 348.
Here, private plaintiffs have sufficiently alleged that the Zoning Board's rejection of Bikur Cholim's use variance and defendant's enforcement of the Zoning Law served as burdens to their religious exercise as defined under RLUIPA. The allegations related to Rabbi Lauber's religious obligation to operate a facility to enable observant individuals to visit the sick on the Sabbath and holidays as well as the other individual plaintiff's obligations to observe the Sabbath while being able to visit their family members at Good Samaritan Hospital implicate their religious exercise. See Cathedral Church of the Intercessor v. Incorporated Vill. of Malverne, 2006 U.S. Dist. LEXIS 12842, *25-26 (E.D.N.Y. Mar. 6, 2006).
Finally, there is no dispute that private plaintiffs are persons and institutions under the law. Therefore, private plaintiffs have met their burden of showing a prima facie case under RLUIPA.
The Court notes defendant's argument that private plaintiff's proposed use is analogous to a group of individuals sharing a communal home. At this juncture, the Court only reviews the pleadings and takes factual allegations at their word. Whether defendant's actions support plaintiff's contention that the enforcement of the Zoning Law would constitute a substantial burden on private plaintiffs' religious exercise is not a question to be answered on a rule 12(b) motion to dismiss.
In addition, defendant argues that it has a compelling interest in enforcing its zoning regulations and in prohibiting transient uses such as private plaintiffs', it has used the least restrictive means of enforcing such regulations. This defense to a RLUIPA claim is not before the Court as the Court determines whether private plaintiffs have pleaded a prima facie case. The Court will address it below, when it analyzes the parties' summary judgment papers. Dismissal at this stage is inappropriate as to private plaintiffs' RLUIPA claim.
c. Private Plaintiffs' Free Association Claim
Defendant next moves to dismiss private plaintiffs' claim for a violation of their First Amendment rights to free association. The First Amendment provides that the government "shall make no law ... abridging ... the right of the people peaceably to assemble...." This protection embraces two types of associational rights: (1) intimate human relationships, and (2) association for purposes of engaging in protected speech. Roberts v. United States Jaycees, 468 U.S. 609, 617-618 (1984). It also includes the right to assemble for religious exercise. See Sanitation & Recycling Indus. v. City of New York, 107 F.3d 985, 996-997 (2d Cir. 1997).
Private plaintiffs adequately allege that they have been denied the right to assemble at the Shabbos House for religious exercises. The Court will therefore leave these plaintiffs to their proof and deny dismissal on this count. Again, whether the zoning regulations are neutral is not a question for this motion.
d. Private Plaintiffs' Equal Protection Claim
Defendant argues that private plaintiffs have failed to allege a claim under the Equal Protection Clause of the Fourteenth Amendment. In order to state such a claim, private plaintiffs must allege that they are (1) similarly situated to an entity (2) that was treated differently. Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 137 (3d Cir. 2002); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). To meet the first prong, plaintiffs must allege that they were similarly situated to property owners that sought a similar variance for a similar plot of land. Burke v. Town of E. Hampton, 2001 U.S. Dist. LEXIS 22505, *21-22 (E.D.N.Y. Mar. 16, 2001).
Private plaintiffs have made no allegations of similarly situated property owners to survive dismissal on this claim.*fn5 Economic Opportunity Comm'n of Nassau County, Inc. v. County of Nassau, 47 F. Supp. 2d 353, 370 (E.D.N.Y. 1999). Dismissal would thus be appropriate but for private plaintiffs' argument that the zoning law treats religious organizations unequally because it allows dormitories and nursery homes to operate through special permits, which are similar uses to Bikur Cholim's. Private plaintiffs' claim that the zoning law on its face violates their rights under the Equal Protection Clause is unsupported by ...