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Grand Rabbi Yechiel Mechel Twerksy and Pinchas Twersky v. Town of Hempstead

October 16, 2012


The opinion of the court was delivered by: Margo K. Brodie, United States District Judge:


Plaintiffs Yechiel Mechel Twersky and Pinchas Twersky filed the above-captioned action against Defendants Town of Hempstead and Town of Hempstead Building Department (the "Town Defendants") pursuant to 42 U.S.C. § 1983, the Federal Religious Land Use and Institutionalized Persons Act ("RLUIPA") and New York state law. Yitzchok Twersky and Duvid Twersky (the "Intervenors") filed a motion to intervene, which was granted by Judge Spatt.*fn1 Plaintiff then filed an Amended Complaint to bring a claim against the Intervenors for interference with property rights under New York state law. All parties moved for summary judgment. The Court heard argument on August 7, 2012. For the reasons set forth below, the motions for summary judgment filed by the Town Defendants and Intervenors are granted and the motion for summary judgment filed by Plaintiff is denied.


This action is, at its core, a family dispute. In 1928, Isaac Twersky purchased a burial plot (the "Twersky Plot") at the Beth David Cemetery (the "Cemetery"). (Town Def. 56.1 ¶ 12.) When Isaac Twersky died, the ownership of the Twersky plot passed to his three sons - Aaron Twersky, David Twersky and Mordecai Twersky. Id. at ¶ 13. Beginning in the 1960s, a rift formed within the Twersky family, as a result of which, David Twersky and Mordecai Twersky were no longer speaking at the end of their lives. (Pl. 56.1 ¶ 49; Pl. Summ. J. Mem. 7--8.) David Twersky died in 2001 and Mordecai Twersky died in 2007. (Pl. 56.1 ¶ 6.) The Twersky Plot is now owned by the seven children of David Twersky and the seven children of Mordecai Twersky.*fn2 (Town Def. 56.1 ¶ 14; Pl. Summ. J. Mem. 5.) Plaintiffs Yechiel Mechel Twersky and Pinchas Twersky are the sons of David Twersky, and Intervenors Yitzchok Twersky and Duvid Twersky are the sons of Mordecai Twersky. (Town Def. 56.1 ¶¶ 10--11.)

After David Twersky died, Plaintiffs wished to build an ohel over his grave. An ohel is a "stand-alone structure customarily built over the graves of righteous scholars and leaders of the Hassidic Jewish community." (Pl. Summ. J. Mem. 5.) According to Plaintiffs, "[u]nder Jewish tradition and law as interpreted by the Skwere Hassidic community, a structure known as an ohel is customarily built over the grave of a rabbi of great stature and respect in the Jewish community." Id. In 2001, Plaintiffs met with Warren Rosen, President of the Cemetery, to discuss building the ohel. (Town Def. 56.1 ¶ 23.) On February 22, 2001, S. Greenbaum Monuments sent documents to Rosen regarding the proposed ohel. Id. at ¶ 24. Rosen provided S. Greenbaum Monuments with a "Foundation Order Correction List," which indicated that notarized permission must be obtained from Mordecai Twersky, the heirs of Aaron Twersky and the heirs of David Twersky. Id. at ¶ 25. Mordecai Twersky, father of the Intervenors, advised Rosen that he objected to the ohel. Id. at ¶¶ 38, 49.

In 2007, Plaintiffs began building the ohel. (Pl. Summ. J. Mem. 11.) In March of 2008, Intervenor Duvid Twersky's brother visited the Cemetery and saw the partially-built walls of the ohel. (Town Def. 56.1 ¶ 50.) The Intervenors, like their father Mordecai Twersky, objected to the building of the ohel. Id. at ¶ 55. On March 17, 2008, Intervenor Duvid Twersky wrote a letter to Raymond Schwarz, Supervisor of Inspection Services at the Town Building Department, advising him that a structure was being built on a burial plot without his consent, as a co-owner. Id. Schwarz asked Charles Vollmer, an inspector with the Town Building Department, to go to the Cemetery and inspect the structure. Id. at ¶ 64. Schwarz determined that a building permit was necessary because the ohel would be open to the public and people were likely to assemble within the ohel.*fn3 Id. at ¶¶ 60, 66. On March 20, 2008, Schwarz issued a "Stop Work Order" on construction of the ohel. Id. at ¶ 68. Schwarz sent a letter to the Cemetery advising it of the Stop Work Order and informing the Cemetery that if the plot owners wished to file a building permit, the Cemetery would have to sign the application, as property owner. Id. at ¶ 71. Rosen advised the Town that the Cemetery would sign the application if all the plot owners consented to the building of the ohel. Id. at ¶ 57. On April 19, 2008, Intervenor Duvid Twersky wrote a letter to Rosen stating that his co-ownership of the burial plot was being violated by the construction of the ohel because the Intervenors did not consent to the construction. Id. at ¶ 56.

Around May 6, 2008, Plaintiffs submitted a building permit application, but the application was not signed by the Cemetery. Id. at ¶ 44. Mark Schwarz, a Building Plans Examiner for the Town Building Department and brother of Raymond Schwarz, reviewed Plaintiffs' application and issued a Planning Department Objection Sheet. (Pl. Summ. J. Mem. 14; Declaration of Donna A. Napolitano ("Napolitano Decl.") Ex. V at 1.) The objection sheet indicated that "[a]n authorized member . . . of the cemetery must sign the application." (Napolitano Decl. Ex. V at 1.) No further review of the application was conducted. Id. On June 9, 2008, the Town informed Plaintiffs that a variance was necessary in order to continue construction of the ohel. (Town Def. 56.1 ¶ 81.) In February 2009, the Town notified Plaintiffs that a variance was not actually required. Id. at ¶ 82. However, Plaintiffs were informed that they needed, among other things, to "[p]rovide a completed application signed by the property owner and notarized." (Napolitano Decl. Ex. V at 2.) On January 13, 2009 and July 19, 2010, a Department of Buildings' Notice of Violation was generated due to the inactivity on Plaintiffs' application. (Town Def. 56.1 ¶¶ 74--75.)

Plaintiffs then filed the instant action alleging violations of Plaintiffs' rights under the First Amendment, RLUIPA*fn4 and Article 78, as a result of the Town Defendants refusal to consider their building permit application without the Cemetery's signature. Plaintiffs also argue that the Intervenors have interfered with their property rights in violation of New York state law. Discovery is now complete and all parties have moved for summary judgment.


a.Federal Law Claims

The Town Defendants argue that Plaintiffs' First Amendment and RLUIPA claims are not ripe. Ripeness is a jurisdictional inquiry, and courts are obliged to consider the ripeness issue first. Island Park, LLC v. CSX Transp., 559 F.3d 96, 110 (2d Cir. 2009); Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005). The court "must presume that [it] cannot entertain [a plaintiff's] claims 'unless the contrary appears affirmatively from the record.'" Murphy, 402 F.3d at 347(quoting Renne v. Geary, 501 U.S. 312, 316 (1991)). In a land use dispute, the plaintiff has a "high burden" of proving that the court "can look to a final, definitive position from a local authority to assess precisely how they can use their property." Id. In determining whether a case is ripe, the court is to "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. (quoting Abbot Labs. v. Gardner, 387 U.S. 136, 149 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).

The Second Circuit has articulated four factors for the court to consider in assessing whether a case is ripe in the context of land use disputes: (1) whether a requirement that the plaintiff "obtain a final decision from a local land use authority aids in the development of a full record;" (2) whether the property owner has exhausted the variance process; (3) whether "a variance might provide the relief the property owner seeks without requiring judicial entanglement in constitutional disputes;" and (4) whether federalism principles further support a requirement of finality. Id. at 348 (citing Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 187, 190 (1985)); see also Lost Trail LLC v. Town of Weston, 289 F. App'x 443, 445 (2d Cir. 2008) (summary order) ("Absent such final determinations, any review of plaintiff's constitutional claims would proceed without: (1) development of a full record, (2) precise demonstration of how local regulations will be applied to particular property, (3) resolution of whether a variance or subdivision approval might provide the relief plaintiff seeks, and thus (4) would risk undue interference in matters of local concern more aptly suited for local resolution." (citations and internal quotations omitted)). Nevertheless, a plaintiff "will be excused from obtaining a final decision if pursuing an appeal to a zoning board of appeals or seeking a variance would be futile." Murphy, 402 F.3d at 349.

The Second Circuit has held that it is not "necessary to distinguish the RLUIPA claim from the First Amendment Free Exercise claim when it comes to our ripeness inquiry." Id. at 350. However, "in the First Amendment context, the ripeness doctrine is somewhat relaxed." Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 90 (2d Cir. 2002). The court must, therefore, conduct a preliminary inquiry to determine whether or not the ripeness analysis should be applied: (1) whether the plaintiffs experienced an immediate injury as a result of the defendants' actions, and (2) whether requiring the plaintiffs to pursue additional administrative remedies would further define their alleged injuries. Murphy, 402 F.3d at 350--51 (citing Dougherty, 282 F.3d at 90); see also Roman Catholic Diocese of Rockville Ctr., N.Y. v. Inc. Vill. of Old Westbury, No. 09 Civ. 5195, 2011 WL 666252, at *19 (E.D.N.Y. Feb. 14, 2011) (the court must first determine whether application of the ripeness test is appropriate).

The Court finds that the four-factor ripeness analysis should be applied in the instant action. First, Plaintiffs have failed to demonstrate that they experienced an immediate injury as a result of the Town Defendants' actions. Plaintiffs claim that they suffered an immediate injury by the refusal to process their permit application because they are prevented from memorializing their father. (Pl. Opp'n Summ. J. 4.) However, courts have repeatedly rejected claims of "immediate injury" based on a defendant's refusal to grant or process a building permit. See Roman Catholic Diocese of Rockville Centre, N.Y., 2011 WL 666252, at *19 (finding no immediate injury where "no decision had been rendered either approving or denying the [plaintiff's] special permit application"); Osborne v. Fernandez, No. 06 Civ. 4127, 2009 WL 884697, at *5 (S.D.N.Y. Mar. 31, 2009), aff'd, 414 F. App'x 350 (2d Cir. 2011) (rejecting the plaintiffs' claim of alleged injury based on the alleged "delay and bad faith in the processing of their application and loss of desired use of their property"). If a plaintiff were able to establish an immediate injury as soon as his or her permit application was denied, even though he or she had not exhausted the appeals or variance process, the finality requirement would be meaningless. The Court finds that Plaintiffs have failed to allege an "immediate injury" because the only injury alleged is the "loss of desired use of their property" as a result of the refusal to process their building permit application. Osborne, 2009 WL 884697, at *5. Second, as discussed in more detail below, an appeal to the zoning board will more clearly define Plaintiffs' alleged injuries - i.e. whether the ...

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