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LEGAL BEAT
Ateres Bais Yaakov Academy of Rockland has filed its initial brief in its appeal against the Town of Clarkstown, Clarkstown Supervisor George Hoehmann and CUPON (Citizens United to Protect Our Neighborhoods), requesting the appeals court overturn the District Court’s dismissal of its case against the Town of Clarkstown and George Hoehmann.
In its original suit at the District Court in White Plains, Ateres claimed it was thwarted in its efforts in late 2018 and 2019 to acquire the Grace Baptist Church site in Nanuet for use as a girls Yeshiva. It accused Hoehmann, the town, and CUPON of a concerted effort to undermine its ability to close the then-pending contract – claiming defendants had worked together to derail the yeshiva’s financing, building permit, zoning application, and contract with the church.
The District Court in White Plains dismissed the complaint in July saying Ateres “did not have standing” to assert its claims because Grace Baptist Church terminated the contract before the Town had a chance to rule on its zoning application, and Ateres had not adequately protected itself in its contract with the seller.
Ateres appealed that dismissal to the Second Circuit, arguing the District Court wrongly dismissed the suit. It charged the allegations in the complaint sufficiently stated a RLUIPA (Religious Land Use and Institutionalized Persons Act) claim, and the loss of the contract was “plainly traceable” to the bad acts of the town and Hoehmann. It also argued the court wrongly relied on lack of a final decision by the Town of Clarkstown’s Zoning Board, because it was plain that no opinion would ever have been issued.
Ateres’s application was left in administrative limbo by the town until Grace Baptist Church ultimately terminated the contract.
In November 2019, the Town of Clarkstown’s council authorized the town to purchase the Grace Baptist Church in Nanuet for $4.5 million for “general municipal purposes.” The transaction closed in early 2020. There has been no development activity since the purchase was completed but the town has applied to the state for a $1 million grant for demolition of the decaying structures.
Ateres contracted with Grace Baptist Church to acquire the property in October 2018 for $4.3 million, and planned to close two months later. The buyer previously had tax-exempt financing approved for an alternative site, and requested Rockland County Economic Assistance Corporation (REAC) transfer the approvals to the Grace Baptist Church site. The REAC approved re-purposing the bonds pending a public hearing. Ateres also sought and received a commitment for alternative financing from a private lender.
According to the brief filed by Ateres, shortly after the contract was signed, Clarkstown held a public meeting where vocal opposition to the purchase for the girls’ yeshiva was robust, and at which time Hoehmann made public statements in opposition to the deal, including the threat of issuing “search warrants” if necessary.
The suit and now the appeal allege Hoehmann encouraged members of the community to oppose the REAC financing at the REAC’s scheduled public hearing. The suit also alleged that after the town’s public hearing, defendants worked together to “subvert the transaction and keep Ateres out of Nanuet.”
According to Ateres, it contracted to buy the church believing it could occupy the school “as-of-right” under existing zoning, operating in a manner similar to Grace Baptist Church. Although the property was zoned R-10 (residential), the church’s use predated the zoning code and was considered a “pre-existing non-conforming use” and was grandfathered. Ateres asserts Hoehmann publicly announced the denial of the building permit before the town’s building inspector made his determination denying Ateres’s ability to use the church as a school. Later, Ateres claimed the town’s Zoning Board put unreasonable obstacles in place to prevent it from ever having its application heard for a variance.
Meanwhile, purportedly under public pressure, the suit claims, the REAC canceled the public hearing on the bond financing, the alternative financier backed out, and Grace Baptist Church’s owners canceled the contract after granting several extensions to Ateres to close the deal.
Ateres filed two suits: an Article 78 case against the town, which was denied, and is currently under appeal, and a RLUIPA suit against the town, Hoehmann and CUPON in federal court.
Two organizations, Agudath Israel of America and the Anti-Defamation League support Ateres’s appeal and are filing amicus briefs with the appeals court.
Agudath Israel serves as an umbrella organization championing the needs of Orthodox community and has a strong interest in safeguarding religious liberties and ensuring that victims of religious discrimination can obtain adequate relief through the courts. It argues in its brief that the “finality test” used by the District Court sets a bad precedent where municipal governments perpetuate religious discrimination and can simply subvert applications by refusing to hear them. Requiring a “final” decision from town boards creates a vehicle for towns to delay and deny applications from religious organizations.
It says, “[w]ith alarmingly increasing frequency, municipalities have been utilizing and exploiting zoning laws and other land use ordinances to burden and exclude Orthodox Jews.” It also says that “[t]he allegations in the Amended Complaint of Ateres Bais Yaakov Academy of Rockland in this litigation describe a familiar pattern of discriminatory conduct by the town of Clarkstown and its officials, in which the religious group is prevented from completing its purchase of a desirable site with numerous thinly disguised pretexts.”
The Anti-Defamation League in its brief summarizes “the troubling pattern of anti-Orthodox exclusionary policy practices in New York and New Jersey localities” and notes how “the disturbing allegations in Clarkstown mirror the land-use actions taken by other municipalities in this region” that were the subject of other enforcement actions by the Department of Justice. It also details thinly-veiled, and sometimes openly antisemitic, threats and sentiment by the community related to Ateres’s attempted acquisition of Grace Baptist Church.
The town and Hoehmann next month will file an answer brief in response to allegations and errors claimed by Ateres.
