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The Roman Catholic Diocese of Rockville Centre, New York v. Theincorporated Village of Old Westbury

April 23, 2012


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiff The Roman Catholic Diocese of Rockville Centre, New York ("plaintiff" or "the Diocese") asserts claims pursuant to the Religious Land Use & Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. ("RLUIPA") as well as 42 U.S.C. § 1983 for violations of its First and Fourteenth Amendment rights. By Memorandum & Order dated February 14, 2011, the Court dismissed a large portion of the original Complaint but granted the Diocese leave to move to amend (the "February 2011 Decision"). Presently before the Court is the Diocese's motion to amend its Complaint as against defendants The Incorporated Village of Old Westbury (the "Village"), The Board of Trustees of the Incorporated Village of Old Westbury (the "Board"), Mayor Fred Carrillo, Trustee Harvey Blau, Trustee Steven Greenberg, Trustee Harvey Simpson, Trustee Michael Wolf (collectively, the "Trustees"), and Michael Maltino ("Maltino") (collectively, "defendants") pursuant to Federal Rule of Civil Procedure 15(a) and (d). For the reasons set forth, the motion is granted in part and denied in part.


The following facts are taken from the proposed Amended and Supplemental Complaint ("Am. Compl."), including the voluminous exhibits attached thereto,*fn1 and are presumed true for purposes of this motion.

The Diocese is a nonprofit religious corporation organized under the laws of the State of New York. The Village encompasses approximately twelve square miles of land in Nassau County, New York. The Board is the legislative and governing body of the Village and is comprised of the Mayor and four Trustees. Maltino has been employed by the Village since at least April 2009 as the Superintendent of Buildings and Public Works.

I. The Property

In 1993, the Diocese entered into a contract with Old Westbury Farm, Inc. (which is not a party to this action) to purchase approximately ninety-seven acres of land located within the Village (the "Property"). The transaction never closed and the federal government ultimately took title to the Property from Old Westbury Farm, Inc. through a forfeiture proceeding. In March 1995, the Diocese acquired the Property from the federal government and is currently the sole fee owner.

As early as 1993, the Diocese learned of a Village land use ordinance that did not permit the use of land within the Village for the burial of human remains. At the Village's instruction, sometime in 1993 the Diocese submitted an application to the Board for a zoning change with respect to its planned development of the Property as the Queen of Peace Cemetery ("Queen of Peace"). In early April 1995, after the Diocese acquired title to the Property, it asked the Village to proceed with its consideration of the Diocese's request for the required zone change and a special use permit. In May 1995, the Village informed the Diocese that it would be required to present its proposed development plan at a public hearing "to prove" that the development of Queen of Peace "is in accord with the comprehensive plan of the Village." (Am. Compl. ¶ 55.) The Diocese alleges that "[a]s of May 1995, there was no such thing as a discernible and objective comprehensive plan adopted or adhered to by the Village," and that "the uncertainties and subjectivity of any comprehensive plan were used by the Village as a pretext." (Id. ¶¶ 56, 57.) After a public hearing held on November 30, 1995, the Board took a formal vote on March 18, 1996 and denied the Diocese's application, concluding that the proposed Queen of Peace was not a religious use of real property, but would be a "huge commercial operation outside the Village's framework." (Id. ¶ 62A.)

II. The State Court Action and the Enactment of the POW Law

In 1996, the Diocese commenced what would ultimately become a long and protracted litigation that went back and forth between the New York State Supreme Court, Nassau County (the "State Supreme Court") and the Appellate Division, Second Department (the "Appellate Division") to challenge the Village's zoning ordinance and the Board's denial of the Diocese's application to develop Queen of Peace (the "State Court Action").

A non-jury declaratory judgment action was tried before the State Supreme Court to "determine whether plaintiffs' proposed [Queen of Peace project] . . . would constitute a religious use of property entitling plaintiffs to additional considerations and accommodations under defendants' Zoning Code." (Am. Compl., Ex. 3 at 1.) In an Order dated November 9, 2000, the State Supreme Court determined that the Diocese's proposed use of the Property to develop a cemetery "constituted conduct for a religious purpose." (Id. at 22.) Therefore, the court annulled the Board's denial of the Diocese's application for a special use permit and remitted the matter to the Board "for issuance of said permit" consistent with its opinion. (Id. at 26-27.) That ruling was made part of a Judgment entered on January 16, 2001. (Id. at 28-30.)

Less than three months later, on March 19, 2001, the Village enacted certain amendments to the Village Code, which the parties refer to as the "Places of Worship Law" or "POW Law".

(Am. Compl., Ex. 4.)*fn2 Plaintiff characterizes the POW Law as "impos[ing] unconstitutional restrictions, including onerous set-back requirements, which specifically single out, target, and attempt to prevent or restrain the religious use of property in the Village." (Am. Compl. ¶ 71.) The POW Law provides that: "Places of worship . . . are permitted in the B-4, B-B and B Residence Districts as a special exception, upon approval of the Village Board of Trustees and subject to [various] conditions," including setback requirements*fn3 and restrictions on building height, automatic sprinklers, and fencing. (Am. Compl., Ex. 4.)

Meanwhile, the Village appealed the State Supreme Court's November 9, 2000 Order and entry of judgment. On April 15, 2002, the Appellate Division upheld the trial court's determination that the Diocese's proposed use of the Property was a "religious use," but found that the "trial court erred in directing the defendant Board . . . to issue a special permit to the Diocese upon remittitur." (Am. Compl., Ex. 3 at McGann v. Inc. Vill. of Old Westbury, 293 A.D.2d 581, 583 (2d Dep't 2002).) The Appellate Division found that the Diocese's proposed development of Queen of Peace qualified as a type I action under the State Environmental Quality Review Act ("SEQRA") and, therefore, carried a presumption that such development would likely result in a significant adverse environmental impact. (Id. at 583-84.) The court found that an Environmental Impact Statement ("EIS") might be necessary. (Id. at 584.) Therefore, the Appellate Division remanded the matter to the Board to determine the environmental impact of the Diocese's proposed development of Queen of Peace "including examination under SEQRA of the effect of any possible mitigating measures." (Id.) The court further directed that "[a] determination on the plaintiffs' application shall be consistent with the preferential treatment afforded the religious use of this property." (Id.) On September 10, 2002, the New York Court of Appeals dismissed an appeal from the Appellate Division's April 15, 2002 Order. (Am. Compl., Ex. 3.)

III. The SEQRA Process

In late November 2002, the Diocese requested that the Village begin the SEQRA process as required by the Appellate Division. The Diocese alleges that between 2002 and June 2010, defendants "abused virtually every device and mechanism available to prevent the development of Queen of Peace . . . ." (Am. Compl. ¶ 84.) In particular, the Diocese asserts that defendants "repeatedly and continually used, misused and applied [SEQRA] in a disparate and discriminatory manner . . . to delay without justification the consideration and approval of the Diocese's application to develop Queen of Peace, and . . . to add as much as possible to the Diocese's expenditures in connection with that process." (Id. ¶ 97.) For example, the Diocese contends that defendants: (1) made "misrepresent[ations] [to] and purposely deceived the Diocese so that it would make concessions that were not required for approval of the Diocese's application as to Queen of Peace" (id. ¶ 89)*fn4 ; (2) required repeated soil and groundwater testing of the Property "with the hope of achieving results adverse to the Diocese" (id. ¶ 97C); (3) attempted to require the Diocese to "fund psychiatric or psychological testing to ascertain the effects, if any, of someone's viewing a cemetery from the perspective of a passerby on an adjoining road," even though defendants knew that "SEQRA applies only to the environment, [and not to] human psychiatric or psychological matters" (id. ¶ 97D); (4) "withheld from the Diocese for months, and in one instance close to a year, documents and reports that address[ed] what the Defendants purport to be material aspects of the Diocese's application" (id. ¶ 97G); (5) demanded that the Diocese "continue to pay [Village-retained] attorneys['] . . . fees and expenses" even though that amount has exceeded the $100,000 cap imposed by Village Local Law § 103.4 (id. ¶ 99); and (6) "refused to act on the Final Environmental Impact Statement (or "FEIS") submitted by the Diocese on July 1, 2009 . . . within the time authorized by applicable law" (id. ¶ 97H).

IV. Warrantless Searches of the Property

In April 2009, Maltino, "who holds himself out as having police power within the Village," conducted "one or more warrantless searches" of the Property. (Id. ¶ 100.) The Diocese contends that these searches were conducted "to harass the Diocese in retaliation for continuing to insist that the long-abandoned structures on its Property had no historic value, and in an attempt to compel the Diocese to maintain them so that a pretextual historic significance concern would continue to require attention and the expenditure of resources to address same by the Diocese." (Id.)

V. Plaintiff's Allegations of Defendants' Animus and Hostility

The Diocese alleges that defendants' "improper animus" towards it has been evident since 1995, when the Village attempted to stymy the Diocese's efforts to hold an All Souls Day Mass on the Property. According to the Diocese, the Village took the "ridiculous position" that the Diocese needed to obtain a building permit from the Village's Board of Zoning Appeals to hold the Mass in a tent on the Property. (Id. ¶¶ 103, 104.) The Diocese asserts that since then, defendants "have repeatedly expressed discriminatory attitudes and views regarding the Diocese['s] proposed development of its Property for religious use." (Id. ¶ 105.) In May 1999, defendant Blau, then the Mayor of the Village, stated that "'a cemetery will never be built on [the] property,' . . . because he disbelieved . . . that a Roman Catholic cemetery such as Queen of Peace [ ] constitute[d] actual and sincere religious land use." (Id. ¶ 105 & Ex. 15 ¶ 4.) Between 2002 and 2004, "Village representatives repeatedly expressed hostility towards" the Queen of Peace proposal by "deliberately down-zon[ing]" the Property to induce the Diocese to abandon the project, and by referring to the cemetery as a "'parasite.'" (Id. ¶¶ 106-08 & Ex. 6 ¶¶ 10-11 & Ex. 16 ¶ 3.)

VI. The Resolution

The original Complaint was filed on November 30, 2009 and approximately one month later, on December 21, 2009, the Village "finally adopted its own version of the FEIS." (Id. ¶ 113.)*fn5 Based on information contained in the FEIS, the Board issued a "Statement of Findings" pursuant to SEQRA on April 19, 2010. In June 2010, the Board adopted a "Resolution Granting a Special Exception Permit and Related Variances to the Roman Catholic Diocese of Rockville Centre Authorizing the Use of Certain Property Within the Village of Old Westbury as a Place of Worship/Cemetery" (the "Resolution"). (Am. Compl., Ex. 21.)

The Diocese alleges that the Resolution "imposes onerous and restrictive conditions" upon its development of Queen of Peace, and that such conditions are "impractical" and make the project "unjustifiably more expensive." (Am. Compl. ¶ 118.) According to the Diocese, defendants imposed these restrictive conditions "with the hope . . . that the Diocese would be forced to abandon its development of the Property for religious use and failing that to limit it as much as possible." (Id. ¶ 119.)

The Resolution includes, inter alia, the following provisions to which the Diocese objects: (1) setback requirements around both the perimeter of the Property (150 feet) and the pond on the Property (75 feet), which "reduce the property available to the Diocese [for burial purposes]" and are "significantly more restrictive than the requirements imposed by the Village for secular land uses," such as golf courses, polo grounds, and a public garden (id. ¶ 121A); (2) a requirement that the Diocese place a perimeter maintenance roadway outside the 150-foot perimeter setback, which further reduces the area available to the Diocese for burial purposes (id. ¶ 121B); (3) a requirement that the Diocese "retain and pay in perpetuity a third-party to maintain the landscaping at Queen of Peace" even though the defendants knew that "the Diocese maintains an experienced landscape maintenance staff at the Holy Rood Cemetery" located less than one mile away (id. ¶ 121C); (4) the Diocese's special exception permit authorized by the Resolution expires every five years unless the Diocese applies for and obtains a renewal from the Village and Board (id. ¶ 121E); (5) deed restrictions (id. ¶ 121H); and (6) required "pre-development" and "perpetual monitoring of groundwater" for nitrates with a standard that "is materially more restrictive than the groundwater nitrate concentration standard adopted by New York State" (id. ¶ 121J).

VII. The February 2011 Decision

The original Complaint, which, as noted above, was filed prior to the Board's adoption of the Resolution, asserted claims pursuant to RLUIPA and Sections 1983, 1985 and 1986.*fn6 The crux of the allegations related to: (1) the defendants' conduct beginning at the time the Diocese initiated communications with the Village regarding development of Queen of Peace in 1993 through the conclusion of the State Court Action, (2) the enactment of the POW Law, and (3) defendants' alleged improper delay of the SEQRA process and refusal to issue a FEIS. In the February 2011 Decision, the Court dismissed as time-barred the Diocese's RLUIPA and Section 1983 claims based upon defendants' pre-2002 conduct (including the Board's denial of the Diocese's 1996 application for a special use permit and defendants' alleged wrongdoing in connection with the State Court Action). (Feb. 2011 Decision at 27-28.) The Court also dismissed the Diocese's RLUIPA and Section 1983 claims based upon defendants' alleged misuse of the SEQRA process, finding such claims unripe for review because "at the time the Complaint was filed, the Board had not yet made a decision to approve or deny the Diocese's application for a special use permit to develop Queen of Peace." (Id. at 35.) Although the Court reviewed the parties' letter submissions describing the Board's adoption of the Resolution, it concluded that: "To the extent that the ...

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