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Fortress Bible Church, Reverend Dennis G. Karaman v. Paul J. Feiner

September 24, 2012


The opinion of the court was delivered by: John M. Walker, Jr., Circuit Judge:


Fortress Bible Church v. Feiner

Argued: September 23, 2011

Before : WALKER, CHIN and LOHIER, Circuit Judges.

Defendants-appellants Paul J. Feiner, Sonja Brown, Kevin 32 Morgan, Diana Juettner, Francis Sheehan, Town Board of 33 Greenburgh, the Town Board of the Town of Greenburgh, and the 34 Town of Greenburgh, appeal from a judgment of the United States 35 District Court for the Southern District of New York (Stephen C. 1 1 Robinson, Judge), holding that they had violated plaintiffs- 2 appellees' rights under the Religious Land Use and 3 Institutionalized Persons Act as well as the First Amendment, the 4 Equal Protection Clause, and New York constitutional and 5 statutory law. We conclude that the district court correctly 6 applied the law and discern no clear error in its factual 7 findings.


This appeal concerns a longstanding land-use dispute between 21 plaintiff-appellee Fortress Bible Church ("the Church") and 22 defendant-appellant Town of Greenburgh, New York ("the Town") 23 over the Church's plan to build a worship facility and school on 24 land that it owned within the Town. After a series of 25 contentious administrative proceedings effectively preventing the 26 Church's project from going forward, the Church, along with its 27 pastor, plaintiff-appellee Reverend Dennis G. Karaman 28 ("Karaman"), sued the Town, its Town Board ("the Board"), and 29 several Board members (collectively "the Town defendants") in the 1 United States District Court for the Southern District of New 2 York (Stephen C. Robinson, Judge). The Church alleged violations 3 of the Religious Land Use and Institutionalized Persons Act of 4 2000 ("RLUIPA"), 42 U.S.C. § 2000cc et seq., as well as of its 5 constitutional Free Exercise and Equal Protection rights, and 6 Article 78 of New York's Civil Procedure Law. After a 26-day 7 bench trial, the district court entered judgment for the 8 plaintiffs on all counts. On appeal, the Town makes six 9 contentions: (1) RLUIPA is by its terms inapplicable to the 10 environmental quality review process employed by the Town to 11 reject the proposal, (2) there was insufficient evidence that the 12 defendants had imposed a substantial burden on plaintiffs' 13 religious exercise under RLUIPA, (3) plaintiffs' class-of-one 14 Equal Protection claim is not viable because they have not 15 alleged a single comparator similarly situated in all respects, 16 (4) plaintiffs' Free Exercise rights were not violated, (5) the 17 Town did not violate Article 78, and (6) the district court 18 lacked the authority to order the Town Zoning Board, a non-party, 19 to take any action with regard to the Church. We find all of 20 these contentions to be without merit and therefore AFFIRM the 21 decision of the district court.



3 In reviewing a judgment after a bench trial, we accept the 4 district court's factual findings unless they are clearly 5 erroneous. See Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d 6 33, 38-39 (2d Cir. 2009). Because we do not identify error in 7 any of the district court's findings that are pertinent to this 8 appeal, we set forth the relevant facts as found by the district 9 court.*fn1

I. The Church's Proposal

Plaintiff Fortress Bible Church is a Pentecostal church 12 established in the 1940s. It is a tax-exempt religious 13 organization with approximately 175 members. In addition to its 14 worship activities, the Church runs Fortress Christian Academy 15 ("the School"), a private Christian school. Plaintiff Dennis G. 16 Karaman is the Church's pastor.

17 The Church is currently located in Mount Vernon, New York. 18 Its Mount Vernon facilities, however, are not adequate to 19 accommodate its religious practice. In 1998, the Church 20 purchased a parcel of land on Pomander Drive in the Town of 21 Greenburgh, New York, with the intention of building a larger 22 facility. This parcel ("the Pomander Drive property") was vacant 1 except for a small residence on one edge. The surrounding 2 neighborhood includes residences, business offices, churches, and 3 major roads. Prior to purchasing the property, Karaman advised 4 the Town of his intent to build a church and school on the 5 grounds, and stated that if the property was not suitable for 6 this purpose, he would not purchase it.

7 The Church sought to build a single structure on the 8 Pomander Drive property that would house a worship facility and a 9 school. The proposed church would accommodate 500 people and the 10 school would accommodate 150 students. The structure would have 11 125 parking spaces and occupy 1.45 acres of the 6.53 acre plot. 12 To construct its proposed building, the Church required three 13 discretionary land use approvals from the Town: (1) site plan 14 approval from the Board, (2) a waiver of the landscaped parking 15 island requirement, and (3) a variance from the Town's Zoning 16 Board of Appeals ("the Zoning Board") to allow the building to be 17 located closer to one side of the property. Because the Church's 18 proposal required discretionary government approval, it triggered 19 New York's State Environmental Quality Review Act ("SEQRA"), N.Y. 20 Comp. Codes R. & Regs. Tit. 6, §§ 617.2(b), 617.3(a) (requiring 21 environmental review process whenever government takes certain 22 discretionary action).

II. The SEQRA Review Process

The SEQRA review process entails several stages. First, the 3 "lead agency" (in this case, the Board) must make an initial 4 determination of environmental significance. 6 N.Y.C.R.R. § 5 617.6. If the environmental impact of the proposal is small, the 6 lead agency can issue a negative declaration, meaning there is no 7 potential for significant adverse environmental impact, or a 8 conditioned negative declaration, meaning that the potential for 9 adverse environmental impact can be mitigated by the agency. § 10 617.7. Alternately, if the lead agency determines that the 11 proposal has the potential for at least one significant adverse 12 environmental impact, the lead agency must issue a "positive 13 declaration" and require the applicant to submit an Environmental 14 Impact Statement ("EIS") evaluating the environmental impact of 15 the project. § 617.7. Preparation of an EIS involves several 16 steps. The applicant prepares a scoping document (outlining the 17 scope of the environmental impact), a draft EIS ("DEIS"), and a 18 final EIS ("FEIS"), and must seek feedback at each stage from the 19 public and approval from the lead agency. §§ 617.8, 617.9.

20 The Church submitted its initial proposal on or about 21 November 24, 1998. On January 27, 1999, the Church and its 22 consultants appeared at a Board work session to discuss the 23 application. The Board requested that the Church examine the 24 project's impact on local traffic and access to the property. In 1 response, the Church hired consultants to perform a traffic study 2 of the area. It also sought feedback from the New York State 3 Department of Transportation ("NYSDOT") and nearby residents.

On 4 or about January 17, 2000, the Church submitted a revised 5 proposal which included a comprehensive traffic study and 6 additional information about potential environmental impacts. 7 After reviewing the proposal, Anthony Russo ("Russo"), the Town 8 Planning Commissioner, believed that the Church had adequately 9 mitigated the Town's traffic concerns and advised the Board that 10 it could issue a Conditioned Negative Declaration.

11 On July 11, 2000, Karaman and other Church representatives 12 attended a work session with the Board. At the meeting, 13 defendant Town Supervisor Paul Feiner ("Feiner") stated that he 14 was concerned with the Church's tax-exempt status and asked it to 15 donate a fire truck or make some other payment in lieu of taxes. 16 Other Board members commented to the effect that they did not 17 want the property to be used as a church. The Church declined to 18 donate a fire truck or make any other payment in lieu of taxes.

19 On July 19, 2000, the Board issued a positive declaration, 20 triggering the full SEQRA review process. 21 Over the next several years, the Church provided all of the 22 information required by the SEQRA process. It produced a scoping 23 document followed by a DEIS, which the Town accepted as complete 24 on October 24, 2001. The Town held hearings on the proposal on 1 December 12, 2001, and January 9, 2002.

During this comment 2 period, NYSDOT submitted comments indicating its approval of the 3 Church's traffic study. Despite the Church's efforts, however, 4 the Town continued to resist the project. On May 3, 2001, 5 Karaman met with Feiner to discuss the review process. Karaman 6 asked what he could do to move the process along, and Feiner 7 responded that the Church could agree to make yearly financial 8 contributions to the fire department. Another Board member 9 suggested to Russo on multiple occasions that he should "stop" or 10 "kill" the project. In early 2002, the Town replaced Russo with 11 a new Planning Commissioner and retained consultants to analyze 12 the Church's proposal.

13 On April 5, 2002, after further consultation with Town 14 officials, the Church submitted a proposed FEIS. The Town 15 refused to discuss the project with the Church and refused to 16 move forward with the review process. Despite having accepted 17 the DEIS and scoping document as complete, which would normally 18 finalize the universe of issues relevant to SEQRA review, the 19 Town began to request new information and raise new issues for 20 the Church to address. The Church provided the requested 21 information and attempted to meet the Town's demands. During the 22 summer of 2002, the Town stopped the review process altogether 23 due to the Church's refusal to reimburse it for certain disputed 24 fees the Town had incurred during the process. On January 17, 1 2003, the Church sent a letter to the Town summarizing its view 2 that the Town had inappropriately delayed its building 3 application despite its consistent efforts to meet the Town's 4 requests.

5 On February 25, 2003, the Town took the unusual step of 6 taking over preparation of the FEIS. It did not notify the 7 Church that it had done so until March 17, 2003. The Town edited 8 the FEIS to include a number of additional problems with the 9 proposal, and did not consider the Church's input addressing 10 those problems.

11 On June 11, 2003, the Church instituted this action. It 12 alleged violations of RLUIPA and its rights under the First and 13 Fourteenth Amendments, as well as New York law, and sought an 14 order compelling the Town to complete SEQRA review and approve 15 the project.

16 On April 14, 2004, the Town denied the Church's 17 application.*fn2 In its findings statement the town stated its 18 primary reasons for rejecting the application as: (1) violation 19 of a recently enacted "steep slope" zoning ordinance; (2) stress 20 on the police and fire departments; (3) retaining walls that 21 constituted an attractive nuisance; and (4) traffic and parking 22 problems.

III. The District Court Decision

The district court conducted a bench trial over 26 non- 3 consecutive days between October 2006 and March 2007. On August 4 11, 2010, in a lengthy opinion containing 622 factual findings, 5 the district court found that the Town had violated the Church's 6 rights under RLUIPA, the Free Exercise Clauses of the First 7 Amendment and New York Constitution, the Equal Protection Clauses 8 of the Fourteenth Amendment and New York Constitution, and 9 Article 78 of New York's Civil Procedure Law. Fortress Bible 10 Church v. Feiner, 734 F. Supp. 2d 409, 522-23 (S.D.N.Y. 2010). 11 It found that the Town had acted in bad faith and had used the 12 SEQRA review process illegitimately as a way to block the 13 Church's proposal. It therefore concluded that the Town had 14 substantially burdened the Church by preventing it from moving to 15 an adequate facility, resulting in a violation of RLUIPA and the 16 Free Exercise Clause. Id. at 496-508, 511-12. The district 17 court also found an Equal Protection violation based on a class- 18 of-one theory. Id. at 513-17. While acknowledging that the 19 Church had not presented a single comparator similarly situated 20 in all respects, it found the Church's comparators to be 21 sufficient with regard to each of the discrete issues cited by 22 the Town. Additionally, the district court found that Town 23 staff, including at least one Board member, had intentionally 1 destroyed discoverable evidence despite specific instructions not 2 to do so.

3 The district court ordered broad relief: (1) it annulled 4 the positive declaration and findings statement; (2) it ordered 5 that the Church's 2000 site plan be deemed approved for SEQRA 6 purposes and enjoined any further SEQRA review; (3) it ordered 7 the Board to grant the Church a waiver from the landscaped 8 parking island requirement; (4) it ordered the Zoning Board to 9 grant a variance permitting a side building location; (5) it 10 ordered the Town to issue a building permit for the 2000 site 11 plan; (6) it enjoined the Town from taking any action that 12 unreasonably interferes with the Church's project; and (7) it 13 imposed $10,000 in sanctions for spoliation of evidence. Id. at 14 520-22. The ...

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