Ateres Bais Yaakov Wins Appeal Against Clarkstown; Religious Liberties Case Proceeds

By Reuvain Borchardt

View of the church property that Ateres Bais Yaakov had sought to purchase in Nanuet, in the Town of Clarkstown, Rockland County, N.Y.

NEW YORK — An Orthodox Jewish school has won an appeal against Clarkstown, New York, allowing the school to proceed with a suit claiming that Clarkstown violated federal law when it denied the school a zoning permit — a denial the school alleged was motivated by “religious animus.”   

The U.S. Court of Appeals for the 2nd Circuit ruled last week that Ateres Bais Yaakov Academy of Rockland County (ABY) has standing to sue Clarkstown for its attempts to prevent ABY from purchasing a school building, overturning a district court decision that had said the school did not have standing to sue at this time.

In 2018, ABY entered into a contract to purchase Grace Baptist Church, a 30,000 square foot building with approximately 50 classrooms.

“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 ABY filed with the the 2nd Circuit, accusing town leadership of working “to prevent what they viewed as a ‘hostile invasion.’”

ABY 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 ABY financing by refusing to grant the regulatory approvals for purchase of the property.

ABY 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 ABY 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 ABY included phrases like “parasites,” “cult,” “infest[ing] the local river” and “#hopetheyallgetmeasles.”

Ultimately, 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 ABY, the town acquired the property and “then proposed amending its zoning laws to effectively foreclose building applications by religious groups like [ABY].”

ABY filed suit in 2020 against the town, Hoehmann, and CUPON, alleging 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 [ABY] 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 ABY lacked standing to sue them because the town had not in fact issued a negative zoning ruling against ABY, and because whatever harms ABY suffered could not be directly traceable to the town or Hoemann’s actions. Rather, the court ruled, ABY could pursue only its claim of tortious interference with contract, and only against CUPON and only in state court.

ABY appealed to the 2nd Circuit, arguing that 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,” and 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.”

ABY also argued that if the 2nd Circuit did not overturn the district court 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.

Last week, the 2nd Circuit agreed with ABY, overturning the district court decision and ruling that ABY in fact had standing to sue at this time.

“In declining review of ABY’s application, the ZBA (Zoning Board of Appeals) — representing the Town reached a decision that was sufficiently final,” wrote the three-judge panel. “Here, ABY plausibly alleges that it submitted a meaningful application for a variance to the ZBA after its Building Permit Application was denied on January 11, 2019,” (internal citations omitted).

“ABY also plausibly alleges that the ZBA issued a final decision by choosing not to adjudicate ABY’s appeal of this denial. Following that denial, the ZBA declined to respond to at least five letters urging it to schedule a hearing.  Further, ABY formally objected to Grace Church’s withdrawal from the sales contract, contending to the ZBA ‘that the Town’s interference was the direct cause of ABY losing its financing resources. Finally, on July 9, 2019, Town counsel wrote to ABY that the ZBA ‘will not entertain any appeal by [ABY] with respect to the [property].’ This letter made the ZBA’s position pellucid: it had reached a decision to dismiss ABY’s appeal … and it intended the decision to be final. At this point, there was nothing more ABY could have done … We conclude that the district court improperly dismissed ABY’s religious discrimination and civil rights claims.”

The court also ruled that all three defendants may indeed be sued in federal court for tortious interference with contract.

ABY “plausibly alleges that the Town Defendants took steps to frustrate its planned acquisition of the Grace Church property — steps that predictably prevented ABY from securing the regulatory approvals necessary to acquire the property, cut off ABY’s access to public and private financing, and led to Grace Church’s termination of the contract,” the court wrote.

“[ABY] plausibly alleged a causal connection between the Town Defendants’ actions and injurie that resulted from ABY’s lost contract. The district court therefore had subject matter jurisdiction to adjudicate ABY’s tortious interference claims against all Defendants on the merits.”

Now that the 2nd Circuit has ruled the case may proceed, it will return to district court, where it will be heard on the merits.

Defendant attorneys declined or did not respond to Hamodia’s requests for comment on the ruling.

Attorney Yehudah Buchweitz of the Weil Gotshal firm, lead counsel for ABY, said in a statement, “This case is unfortunately one of many instances where a municipality abuses its powers to try to keep religious minorities from moving in or practicing their religion freely. This is America and people should be permitted to live, worship and go to school wherever they choose, regardless of their religious affiliation. This is the latest in a decades long battle against anti-Semitism, in particular with respect to Orthodox Jews, and we will not stop in our efforts to try to stop religious discrimination.”

This case is the most recent 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. (Buchweitz and his team of pro-bono attorneys at Weil Gotshal have represented a number of these plaintiffs.)

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. Opponents of these permits say that allowing increased construction would lead to overdevelopment and change the suburban nature of the town, and that they are not trying to keep any particular group out of their town. 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.

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