Rockland Orthodox School Appealing Court Ruling Accuses Clarkstown of ‘Religious Animus’

By Reuvain Borchardt

NEW YORK — Ateres Bais Yaakov Academy is appealing a court’s dismissal of its suit against Clarkstown, arguing that the town, “motivated by religious animus,” successfully prevented Ateres from acquiring a property for use as a Jewish school.

The Rockland County school, currently located in the nearby town of Ramapo, entered into a contract in 2018 with a Baptist church in Clarkstown to purchase its property.

“But the establishment of an Orthodox Jewish institution did not sit well with Clarkstown, its elected officials, and a notoriously anti-Semitic group of ‘citizen advocates’ called Citizens United to Protect Our Neighborhood (CUPON),” according to the appeal Ateres filed late last month in the U.S. Court of Appeals for the 2nd Circuit, accusing town leadership of working “to prevent what they viewed as a ‘hostile invasion.’”

Ateres says it attempted to complete the transaction by applying for zoning approval, securing an informal commitment of public bond financing, and obtaining a commitment from a private bank as an alternative source of funding. But Town Supervisor George Hoehmann and other town officials and members of CUPON conspired to deny Ateres financing by denying the regulatory approvals for purchase of the property.

The allegations in this article are made in Ateres court filings, and by Ateres attorney Yehudah Buchweitz of the Weil Gotshal firm in an interview with Hamodia. The defendant attorneys either declined to speak with Hamodia about the case or did not immediately respond to Hamodia’s requests to discuss the case.

At a public board meeting in November 2018 held shortly after Ateres and the church entered into the agreement, Ateres alleges in its court filing, town supervisor George Hoehmann “announced that the Town would deploy every weapon in its arsenal to tank the transaction: he stressed that the transaction would ‘NOT occur in the Town of Clarkstown without ALL approvals,’ that he would issue ‘search warrants if necessary,’ and that the Town itself would try to purchase the Property.” Hoehmann, and others who would soon organize CUPON, told community members to express their opposition to the bond-issuing agency — which, under pressure, ultimately canceled Ateres’s bond hearing.

Buchweitz says the town then repeatedly hindered and delayed the zoning review process.

“They were putting us into administrative purgatory,” says Buchweitz. “They delayed and delayed and required more things.”

Ateres alleges that “CUPON’s attorney coached [CUPON members] including Supervisor Hoehmann, on how to disguise their religious animus as ‘facially neutral,’” in an attempt to avoid accusations of religious discrimination.

But some Clarkstown residents made their intentions clear. At the public board meeting in November 2018, video posted by The Yeshiva World shows some attendees shouting while Ateres Dean Rabbi Aaron Fink presented his school’s plan; a portion of the crowd engaged in a walkout, with one person bluntly yelling, “We don’t want you.”

Comments posted online by Clarkstown residents opposed to Ateres included phrases like “parasites,” “cult,” “infest[ing] the local river” and “#hopetheyallgetmeasles”.

According to Ateres, pressure and regulatory delays by Hoehmann and other town leaders and members of CUPON finally succeeded, as the deal fell apart before the town ever issued a final zoning ruling: the bank revoked its letter of intent to finance the deal, the church terminated its agreement to sell the property to Ateres, the town acquired the property and “then proposed amending its zoning laws to effectively foreclose building applications by religious groups like Ateres.”

In February 2020, Ateres filed suit in federal district court, against the town, Hoehmann, and CUPON. The suit alleged various civil-rights claims against the parties, including a violation by the town of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits government from applying a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person or institution. The suit also alleged tortious interference with contract by all three defendants, saying they had engaged in a scheme “to prevent [Ateres] from executing its obligation under the contract to purchase the Property” by hindering its attempts to secure financing and regulatory approvals to complete the transaction.  

But the district court dismissed the claims against the town and Hoehmann, saying Ateres lacked standing to sue them because the town had not in fact issued a negative zoning ruling against Ateres, and because whatever harms Ateres suffered could not be directly traceable to the town or Hoemann’s actions. Rather, the court ruled, Ateres could pursue only its tortious interference with contract, and only against CUPON in state court.

In the appeal filed late last month in the 2nd Circuit Court of Appeals, Ateres argues the district court erred in dismissing the case.

Ateres says that its inability to purchase the school property is traceable to the defendants’ actions, saying it suffered “injuries, in the form of both stigma and economic loss — when the Town discriminated against it, prevented it from securing regulatory approval, and encouraged [the church] and the potential financiers to terminate their dealings with Ateres.”

While the town did not in fact issue a final negative zoning ruling against the school, it “manipulate[ed] [the] zoning process out of discriminatory animus to avoid a final decision,” Ateres alleges, arguing that awaiting a final decision “would be futile because the Town Defendants made clear — through their hostility, obstruction, and delay — that all such applications will be denied.”

Ateres also says that if the appellate court does not overturn the lower court’s ruling, it would effectively be providing a playbook for municipalities seeking to discriminate against disfavored religious groups: as long as the municipality doesn’t issue a final negative ruling against the group, the municipality could delay and hinder a transaction until it falls apart.

Clarkstown Town Attorney Craig Johns told Hamodia he would not comment on pending litigation, except to issue this statement: “The town feels that the U.S. district court reached an appropriate decision and believes that further litigation by the plaintiff is frivolous.”

An emailed request for comment sent Monday to defendant attorneys John Flannery and Eliza Scheibel was not immediately answered.

This is the latest RLUIPA-related case that has arisen in various towns in upstate New York and in New Jersey, as Orthodox Jews have moved into the towns for the first time.

Typically, the cases arise after the towns deny the Jews permits to erect an eruv, a school or a shul. The town leaders, and the residents who support them, refuse these permits on the grounds that they violate local laws — and sometimes the towns enact new zoning laws as Orthodox populations grow and these permits are sought. Some residents complain that allowing increased construction would lead to overdevelopment and change the suburban nature of the areas. The Orthodox communities allege that the residents are engaging in thinly veiled, or at times overt, antisemitic rhetoric and actions, passing and enforcing laws that serve to restrict Orthodox growth.

“Over the past two decades, as Orthodox Jewish communities have looked for space to practice their faith in our region, ADL has been monitoring a disturbing rise in antisemitic animus, sometimes in the form of harassment and violence, and other times manifesting in more systemic and insidious ways, including in how municipalities have used zoning laws and other land use ordinances to burden and exclude Orthodox Jews,” said Scott Richman, Regional Directorof the New York/New Jersey division of the ADL, which filed an amicus brief on behalf of Ateres.

“Although RLUIPA was passed specifically to combat this kind of discrimination by local officials, municipalities continue to violate the law,” Agudath Israel of America says in an amicus brief filed on behalf of Ateres. “A slew of RLUIPA claims reveal a similar pattern of conduct by municipalities and their officials: associating with vociferous and overtly discriminatory resident groups opposed to Orthodox Jews using or developing property; placating these groups by applying zoning ordinances in a discriminatory manner; often purchasing desirable sites to prevent use by Orthodox Jews; and offering pretextual excuses for such discrimination.”

In nearly all these suits, the Orthodox communities have either won or received favorable settlements, but often only after protracted and acrimonious legal battles — at times after state attorneys general or the U.S. Justice Department have stepped in and filed civil-rights suits against the municipalities.

Buchweitz himself has led pro bono teams of Weil Gotshal attorneys, winning or receiving favorable settlements, in a number of these cases in New York and New Jersey, including an eruv case in the Hamptons, an eruv case involving three Orthodox communities in New Jersey, and a RLUIPA case for a Jewish congregation in Clifton, New Jersey.

Ateres’ appellate brief is available here

Aguath Israel’s amicus brief is available here

ADL’s amicus brief is available here

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rborchardt@hamodia.com