INTERVIEW: Zoning in on Discrimination

By Reuvain Borchardt

Attorney Yehudah Buchweitz, who won a land-use ruling earlier this month on behalf of Ateres Bais Yaakov Academy of Rockland against the town of Clarkstown and Citizens United to Protect Our Neighborhood (“CUPON,” a group that opposes Orthodox Jewish expansion in New York), discusses his extensive pro bono work on religious-discrimination cases.

Buchweitz is a partner in the litigation department of Weil Gotshal & Manges LLP, an international law firm based in Manhattan, where he focuses on a wide spectrum of complex commercial litigation and arbitration. He has been ranked on various Top Lawyer lists by Chambers USA, Law360, Legal500, LMG Life Sciences and Benchmark Litigation.

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You recently won a ruling in the 2nd Circuit Court of Appeals for Ateres Bais Yaakov Academy of Rockland, against the town of Clarkstown and CUPON, which had sought to deny Ateres the right to build a school on an old church property it was trying to purchase. The district court had ruled that Ateres had not gone through all the necessary procedures yet to try to obtain zoning approval and therefore had no standing to sue Clarkstown and CUPON, but the 2nd Circuit overturned that ruling and said you did have standing to sue.

“Standing” is a technical legal issue, but this decision has important, far-reaching consequences because it gets rid of a dangerous blueprint that localities could have followed to discriminate against Jews.

Usually if someone discriminates against Jews illegally, you can sue them in court. But in the context of land-use disputes, courts have said you cannot sue unless you go through the municipal process and get a “final decision” from the town. Therefore, the key thing that this case turned on was whether there had been a final decision by Clarkstown’s Zoning Board of Appeals.

In our case, Clarkstown had kept Ateres in administrative limbo for a period of time. They delayed, delayed, delayed, told Ateres they needed to do this and needed to do that. Ultimately, because of the delays, Ateres lost financing and the deal fell apart before there was ever a decision by the Zoning Board of Appeals on Ateres’ land use application. The town essentially said, “Now Ateres has no application for zoning approval, the Zoning Board of Appeals never made a decision, so Ateres can’t sue us for thwarting their efforts to obtain approval to use the church property as a school.”

But we brought our suit on the basis of all the conduct that they did in meeting with CUPON and agitating people to lobby against zoning approval. The 2nd Circuit agreed with us even though there was no final ruling by the Zoning Board of Appeals on Ateres’ application: they looked at all the conduct, including the final letter that we got from a lawyer saying the Zoning Board will not be taking any further action, and even though it wasn’t a decision of the Zoning Board of Appeals on Ateres’ application itself, it was sufficiently final for us to have the right to bring a claim.

And that was the key thing, because with similar zoning issues in some of these municipalities, there can be endless delays before you ever get to a final ruling. We had that issue with Congregation Shomrei Torah of Passaic-Clifton, where they had years and years of proceedings. In the end, the delay ended up being part of the reason we were able to proceed with the case.

So it was important for us to get this decision on “finality” in this Clarkstown case, because it really impacts other situations. Otherwise, municipalities could take advantage of this. We know they watch us, they watch what we do in these cases, they watch what other people do in these cases, and they create playbooks based on it. Eliminating that kind of finality problem was very important, not just for this school but for others as well.

The 2nd Circuit ruled you have standing, but you haven’t won the case yet; you were just given the right to bring the actual lawsuit, that the town violated RLUIPA (the Religious Land Use and Institutionalized Persons Act) and that the town, Town Supervisor George Hoehmann, and CUPON committed tortious interference with contract.

Yes. We first brought this case years ago, and only now that we have this ruling from the 2nd Circuit can we go back into district court and proceed on the merits of the claims of RLUIPA, tortious interference with contract, and civil-rights claims.

Relatedly, a state appeals court recently held that Clarkstown illegally concealed documents from us that were harmful to their case, and ordered that the town pay for all related expenses incurred by Ateres.

You’ve done many of these religious land-use cases. We’ve seen this story repeat itself over and over in New Jersey and upstate New York. Typically, Orthodox Jews move into a town and are denied zoning approval for a yeshiva, a shul or an eruv. The Orthodox communities say this is antisemitism and an attempt to keep Jews out, while the towns say they are opposed to expansion and just want to maintain the suburban nature of the area. Is there anything to the claim that residents just want to maintain the quiet suburban town they’ve been living in for years? Or do you feel that in all these cases, it’s an antisemitic attempt to keep the Jews out?

In all the ones that we do, it’s the latter.

You need to look at the circumstances of each case. For example, in eruv cases, that has nothing to do with maintaining the nature of the town or traffic problems, etc. These lechis are little plastic strips on a utility pole, while there are other plastic strips on the same pole covering up wires, and you have no idea which one is the lechi andwhich one’s covering up a wire. When you oppose that, it’s really just that you don’t want Orthodox Jews to live in that community.

When you look at our case with Ateres, what was on this property that this school was trying to buy? It was a massive church that was there for a long time, and it had a school there. That congregation was getting smaller, and they wanted to sell their building and move someplace else. They have every right to do that, and they should be able to sell that to a religious school that wants to move in. You’re talking about something moving in that’s basically the same as what was there before — just a different religion. A disfavored religion. So there you know it’s religious animus.

It’s possible that if there’s some community that has poor zoning laws, and somebody’s trying to build a huge building in middle of a place that has tiny houses, maybe that would really be a zoning concern and not religious discrimination. But that’s not what’s happening in these cases that we’ve taken.

The other way to know the town’s intention is by the reaction in the communities. If the reaction of the community is, “We don’t want these people here; they’re bringing disease,” or all these other crazy things we’ve heard over the years, that tells you something, rather than if it were something like, “There’s not enough water.” Sometimes those are nonsense, but sometimes those are real, and that’s not the situation in any of these cases we’ve done.

The political leaders of these municipalities are usually more circumspect than the people on social media and at town hall meetings, who are often overtly antisemitic. Does the fact that some people say antisemitic things at a town hall meeting or on a social media page necessarily mean that the town leaders had those same discriminatory intentions when they, for example, refused to grant zoning variances?

The real question is, how do they react? There have been many municipalities that we’ve been involved with over the years that didn’t lead to big litigations where there were people who were saying terrible things, but the leaders of the municipality said, “I know my job. I’m not going to give in to this. I’m not going to allow this discrimination to happen.” Those people are great, and I’ve counseled a lot of people over the years on what to do in those kinds of circumstances.

In this Ateres case, the town supervisor not only convened meetings but actually went to CUPON and talked to them about what they should do. He even said, “We’re going to bring search warrants if we have to.” Search warrants for a school that wants to move into a church building? It’s crazy!

I was at one of these board meetings at a similar case in the town of Haverstraw, in Rockland County. The town supervisor, Howard Phillips, has been supportive of the Jewish community and has defended them despite rowdy crowds opposing the community at these meetings. (The Planning Board of Haverstraw voted against allowing a shul to be built on a private-home lot — until the town was sued for RLUIPA and constitutional violations. The town ultimately agreed to a settlement allowing the shul to be built with slight modifications to its original plans and reimbursing the congregation $235,000 for attorneys’ fees.)

We’re actually doing a case there: It was brought by the neighbors against the congregation, saying that RLUIPA is unconstitutional. They even accuse the congregation of being a nuisance!

Have there been lots of challenges to RLUIPA’s constitutionality?

There have been many over time. RLUIPA itself is a narrower version of prior legislation, the Religious Freedom Restoration Act (RFRA). That was deemed too broad, so they narrowed it to really just be about land use and institutionalized persons, which are two things that a lot of testimony was presented to Congress showing that there has been very significant discrimination over the years that merited these kinds of laws. There have been challenges on the institutionalized persons side and on the land-use side, but so far none of the challenges have succeeded.

I believe that in just about every case that not only you’ve taken, but the similar cases in New York and New Jersey, the Jewish community has eventually won, but often after protracted litigation. Why do all these municipalities continue with these legal fights even as they see that similar towns pretty much always lose their cases — and sometimes the attorneys general of New York and New Jersey file suits against the towns as well?

Yes, the attorney general of New Jersey has been great. He sued Mahwah in one of our eruv cases, and the front page of The Star-Ledger was basically comparing it to trying to keep African-Americans out of certain communities in the 1950s.

Regarding why the towns keep doing this: I think some of it is politics — even though they know they’re going to lose, they have to take certain positions in order to play to their base. That’s really unfortunate. First of all, it’s sad that that’s something that plays well. But also, I think that people should stand up to hate. There are a lot of examples of people who do that. Unfortunately, there are a lot of examples of people who don’t.

You grew up in a little Long Island town with an eruv, right?

Yeah, North Bellmore.

Was there a fight over that eruv?

No. That eruv went up in 1977 and is still up as far as I know. These communities in New York and New Jersey really grew in the ’80s and ’90s. Our eruv was one of the earlier ones, and we had great cooperation from at the time LILCO (Long Island Lighting Company), which later became LIPA (Long Island Power Authority), and the town officials. Now I live in New Rochelle, and it’s also all good.

Ninety-nine percent of eruvin are put up without any controversy. We did a calculation once that 24 out of the top 25 cities in America have an eruv; people don’t even realize it.

One of the times I was arguing in the 2nd Circuit in the Hamptons eruv case, one of the judges had been the mayor of West Hartford, Connecticut, in 1985 when they put up an eruv, and he’s the one who had signed the proclamation. He, of course, didn’t remember that, but that’s because it was not a big event. It was like, “Okay, these people want it, it doesn’t have any impact on anybody else, it’s a nice thing to do — no problem.”

Are there any RLUIPA or similar cases in the pipeline now that might get to the Supreme Court anytime soon? The current Court is considered more friendly toward religious rights than any other Court in generations.

There are a few procedural issues about religion in the courts now, including how you calculate damages, and what are potential things that you can get damages for. Right now, there are a few different courts that say you can’t get damages against the actual individuals who are responsible for RLUIPA violations. So that’s something that may get to the Supreme Court. I think that that’s the main kind of procedural issue. RLUIPA is two decades old. But, you know, a lot of the things that you get with RLUIPA you could also get with just the First Amendment, which was ratified in 1791!

RFRA and RLUIPA passed unanimously or nearly unanimously in each house of Congress and signed into law by President Bill Clinton. Do you believe that if there were a vote on religious-liberties laws today, so many Democrats would support it?

I hope so.

Let’s discuss some of your other religious-liberties cases. First, the Shabbos elevator case in Fort Lee.

It was a community of people from Long Island and other parts of New Jersey who had sold their homes, and now they’re retired and live in these apartments in a 32-story building. They stay for Shabbos, but for Yom Tov they go visit their kids in the Teaneck area. It’s an interesting community. Most of the people are between 60 and 90, and they live on all the different floors of this building. There was a Shabbos elevator that was promised, and eventually they got it. But then people got upset, and they took it away. And not only did they take it away, they also instructed the doormen that they weren’t allowed to press the button for these elderly people to get up to the 30th floor, which they had been doing for years and years before they even had a Shabbos elevator. So it was really, really punitive.

We filed suit under the federal Fair Housing Act, which has a prohibition against discriminating based on religion, and it also has an obligation to accommodate handicapped people. We had a bunch of folks who were handicapped and were entitled to an accommodation, and who were religious and were entitled to not be discriminated against.

People would come in from shul and stand there and wait for the doorman to press the elevator button for them, but the doorman would refuse. Then their non-Jewish neighbor would come up with groceries in both hands, and the doorman would press the button for them! It was really egregious. We sued for a preliminary injunction and they gave up right away, and the Shabbos elevator was restored. They also reached an agreement over our allegations that they had violated a separate New Jersey law against discrimination. Since all this, things have been running smoothly in the building for all residents.

You alluded to the Clifton case. Tell us about that.

Congregation Shomrei Torah of Passaic-Clifton was trying to build a shul, and it took them about 10 years to get through all sorts of different processes that were totally unnecessary. Some of it, of course, is necessary, with permits, etc., for a new building, but there is a line. Clifton started to require things that never should have been required or necessary, just to try to delay, delay, delay.

Ultimately, they did a lot of litigation in court with other counsel, they had to go up on appeal multiple times, and finally won and got their approval. And then they asked us to come in and pursue a RLUIPA claim against Clifton. We ended up winning a very large settlement: $2.5 million — which helped fund the building — and an agreement by Clifton to build a sidewalk near the shul.

You were also on the Hamptons eruv case, which you won after an eight-year legal battle.

They asked for an eruv in a friendly way, but it turned really bad. We ended up having to sue three different towns: Southampton, Westhampton Beach, and Quogue. Each one had its own separate, underlying process, and we ended up winning in multiple courts, federal and state. In the end, we won everything. The eruv has been up all these years, the town is the same, the people who need an eruv are happy and the people who don’t need it don’t notice any difference.

That set a lot of precedents on a few different legal issues.

You also mentioned Mahwah before. That was the Bergen Rockland Eruv Association case.

Yes. It was Mahwah, Upper Saddle River, and Montvale in New Jersey. There were some Jewish communities in Rockland County, New York, on the New Jersey border, whose eruv needed to dip into New Jersey ever so slightly. The Jewish community got agreements with utility owners Verizon and Orange & Rockland to put up the lechis on their poles, and each of those three towns tried to stop them.

At one point, I had to go into court for a temporary restraining order because they threatened to pull down all the lechis. I had been in Los Angeles. I flew in, we got to court on a Friday morning, and they gave up as soon as we got to court, based on our filings. They allowed it to stay up. Then we had to litigate that one over a number of years as well. Eventually, the eruv was permitted in all of those places. And again, the world didn’t come to an end.

Am I missing any of your other pro bono religious-liberties cases?

Those are all the public ones. But I’ll say that for every one of the public ones, there are three private ones where a dispute gets resolved before it has to become public. And the reason that happens is the strength of the public ones.

A few weeks ago, I was speaking at an eruv conference at the OU. A guy came up to me and said, “You’ve helped me all these years and you don’t even know it. Every time somebody tells me I can’t do something, I tell them to Google the words ‘Mahwah Weil Gotshal.’”

With all our discussion of your pro bono cases, you actually have a day job, litigating cases for companies worth billions of dollars. How much of your time is devoted to pro bono work?

I put in a lot of time to pro bono, and a lot more time to my billable clients. But we have big teams, a lot of people get involved, so when one lawyer is really busy on one matter, somebody else can fill in. People have been coming to us for years to work on these cases. We’ve ended up getting some great recruits out of it. And hopefully they’ve had a really good experience working on them.

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rborchardt@hamodia.com