Airmont Agrees to Roll Back Zoning Provisions  that Allegedly Discriminate Against Orthodox Jews

By Hamodia Staff

The Justice Department on Friday announced the entry of a consent decree with the Village of Airmont in Rockland County, N.Y., to reform zoning provisions that allegedly discriminated against Orthodox Jews.

The consent decree rolls back zoning provisions enacted in 2018 by increasing the amount of space in private homes that can be used as residential places of worship and removes restrictions upon whom residents are allowed to invite into their own homes to pray, and eliminating the use of an arbitrary, drawn-out application process designed to delay and effectively deny permits for even minor alterations to private houses. 

Airmont had previously consented to entry of a preliminary injunction in 2021, barring enforcement of these zoning code provisions.  The Consent Decree makes this prohibition permanent.

Friday’s entry of the consent decree is the latest step in a fight between the federal government and Airmont’s alleged religious discrimination going back more than three decades.

“The U.S. Attorney’s Office first sued Airmont in 1991, alleging that its founders had formed the village for the purpose of excluding Orthodox Jews from its boundaries by, among other things, adopting zoning policies that would preclude Orthodox Jews from using their homes for prayer services,” according to a Justice Department press release Friday announcing the consent decree. “Following extensive litigation, including a jury verdict finding that Airmont engaged in discrimination, the U.S. District Court entered a judgment in 1996 barring the Village from engaging in discrimination and requiring the Village to create a new zoning classification ― Residential Places of Worship, or RPWs.  The United States was again compelled to sue Airmont in 2005, when the village denied an application to build a yeshiva on the ground that its zoning code prohibited residential student housing, even while allowing other building projects with similar group residential components, such as sleepaway camps, hotels, and nursing homes.  That lawsuit ended with a consent decree in 2011 requiring Airmont to amend its zoning code to permit educational institutions with accessory housing.

“Once the 2011 consent decree expired, however, a new political movement called “Preserve Airmont” won Village elections and, in February 2017, instituted a moratorium on all development pending consideration of a revision of its zoning code.  When the moratorium ended, the Preserve Airmont administration enacted a new zoning code in 2018, which, in violation of the 1996 court judgment, removed RPWs from Airmont’s zoning code altogether, created a new category of “residential places of assembly” (or “RPAs”), which were “permitted by special permit” only, and imposed an onerous and restrictive review process for such permit applications.  Following the filing of a lawsuit by private religious entities alleging that the 2018 zoning code was infringing upon their religious liberty … the U.S. Attorney’s Office conducted its own investigation, filed papers with the Court in the Ridnik case in 2019, and filed its third lawsuit against Airmont on December 2, 2020, obtaining a preliminary injunction on March 14, 2021,” which was made permanent on Friday.

Damian Williams, U.S. Attorney for the Southern District of New York, said in a statement, “When religious intolerance poses a threat to the unity of this nation of many faiths and traditions, it is vital to stand up for the First Amendment right to freedom of worship.  While we are pleased that Airmont has agreed to settle this matter, the fact that this is the third time we have sued the village over similar concerns demonstrates that this office will be ever vigilant in protecting the rights of religious minorities.” 

Under the terms of the consent decree, Airmont:

• Must not impose any or implement any land use restriction in a manner that imposes a substantial burden on the religious exercise of any person, including a religious assembly or institution, unless the Village can demonstrate that the imposition of that burden furthers a compelling government interest and is the least restrictive means of furthering that compelling government interest;
• Shall neither impose nor implement any land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution; nor shall impose nor implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination;
• Must restore RPWs as a recognized land use category permitted as of right in all residential districts and may not enforce contrary provisions of local law enacted in 2018 that removed RPWs as a recognized of-right use from its zoning code;
• Must restore in full zoning provisions protecting the right to residential worship imposed by the 1996 Court-entered final judgment, including those provisions AIRMONT removed from its code in 2018;    
• Must ensure that all applications for RPWs that are 49% or less of the total floor area of the residence are reviewed and approved on an expedited basis without public hearing; and
• May not adjudicate applications for RPWs that are 49% or less of the total floor area of the residence under the terms of the burdensome site development regulations enacted in 2018.

This is the latest in a string of religious-land-use cases that have arisen in various towns in upstate New York and in New Jersey.

Typically, the cases are brought after the towns deny the Jews permits to erect a school, a shul or an eruv. 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. More broadly, some residents complain that allowing increased construction would lead to overdevelopment and change the suburban nature of the areas. But 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.

In nearly all these suits, the Orthodox communities have either won or received favorable settlements, but often only after protracted and acrimonious legal battles, which often include the intervention of the Justice Department or state attorney general.

View the consent decree here