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Rabbi Claims Clarkstown ZBA Discriminated Against Application For Home Expansion Based On Historic Animus Against Orthodox Jews
THE LEGAL BEAT
Rabbi Naftali Horowitz has filed a lawsuit in federal court claiming the denial of variances by the Clarkstown Zoning Board of Appeals (ZBA) that would have allowed the expansion of his home on a residential road in New City violated RLUIPA (Religious Land Use and Institutionalized Persons Act,) and denied his religious rights guaranteed by the U.S. Constitution, particularly his right to freely exercise his religion and right to associate with others seeking to worship at his home.
In March, the Town filed a motion to dismiss the lawsuit. It is also fighting allegations that the Zoning Board denial gives the plaintiff standing to challenge a local law that prohibits houses of worship on town roads.
A federal court will have to decide if it agrees with Horowitz, who believes he has a religious and legal right to expand his home to accommodate additional worshippers despite the bulk limitations in the local zoning code. Or a court may side with the town, and find that Clarkstown’s denial of variances to expand a residential home to accommodate additional religious practices contrary to the town code does not amount to a RLUIPA violation.
Rabbi Horowitz is not alone in his sharing his religious practice with neighbors.
Throughout Clarkstown, worshippers attend services and torah study in residential homes on quiet streets and in cul-de-sacs. In April, RCBJ reported on neighbors challenging such a practice on Pleasant Hill Drive in New City as disruptive to their suburban leafy idyll.
Rabbi Naftali resides on Center Lane in New City, a local town-owned road. In 2016, Clarkstown’s passed a law limiting non-residential uses in residential zones to county and state roads, and on those roads, the property must have at least 100 linear feet of frontage.
Rabbi Naftali’s home is not located on a county or state road. It is 2,900 square feet on a 15,000 square foot lot in Clarkstown’s R-15 residential zone.
Last year he applied for several variances to enlarge his house to make it more practical for 20 to 30 adults and their children to worship. He applied for a 1,447 square-foot addition to his 2,900 square-foot home. He needed ZBA variances because the design ran afoul of the zoning code’s bulk provisions. He sought variances to increase the “floor area ratio” (a zoning metric that limits the total usable floor space of a building relative to the size of its lot) from .23 to .41, an almost 80 percent increase; a side lot setback reduction from 20 feet to 14.9 feet; and maximum development coverage (absolute percentage of a parcel that can be occupied by roofed structures) from 23 percent to 37.8 percent.
His attorney said the requested variances were “substantial”.
After a hearing before the ZBA where the neighbors voiced both opposition and support, the ZBA denied the requested variances (though it did grant one variance for off-street parking), viewing the requests as too substantial for the character of the neighborhood and inviting Horowitz to reapply with a scaled down request. The ZBA also expressed concern about precedent and having to allow other residences in the area to supersize.
Rather than return with a modified plan, Horowitz filed a lawsuit last January charging that the denial amounted to religious discrimination under federal law.
More importantly he never applied for a variance from the town’s requirement that a house of worship must be situated on a county or state road, even though he has made this part of the lawsuit in federal court.
Horowitz claims he holds services in his home because “there is currently no Orthodox Jewish synagogue located within walking distance” of his home or the local orthodox Jewish community. He says, “the current layout of his home prevents him from fully engaging in his religious exercise.”
To argue his case, his attorney Joseph Churgin claims a history of religious animus toward Orthodox Jews in Clarkstown dating back several years to Clarkstown’s involvement with the acquisition of the Grace Baptist Church in Nanuet and the related settlement where Clarkstown paid $200,000 to settle claims made by Ateres Bais Yaakov Academy of Rockland under its RLUIPA suit.
The lawsuit also claims the town unnecessarily delayed his application before the ZBA, and the ZBA denied him the opportunity to modify his application before it was denied. Application delays can form the basis of a RLUIPA suit and federal law specifically prohibits local governments from improperly delaying land use applications to the detriment of religious organizations.
The town says Horowitz’s case was brought prematurely because he was invited to return to the ZBA with a scaled back plan, which he declined to do. The town says its land use decision is not final, even though the ZBA entered an order denying the variances Horowitz requested.
The town also says a two-month delay in hearing his variance application is not evidence of bias, that Horowitz is free to continue to practice his religion, and the town has not inhibited his practice nor is it required to facilitate its growth in its current location. The town says the code is applied without discriminatory intent and is applied even-handedly and according to the law – that its decisions are not arbitrary, capricious or tainted by bias.
The town also asserts that whatever happened more than six years ago at the Grace Baptist Church has no bearing on Horowitz’s application. The town’s ZBA was simply protecting the existing character of the neighborhood and not interfering with Horowitz’s religious practice or hindering his growth aspirations.
Clarkstown Fights To Defend Its Local Law Prohibiting Houses of Worship on Town Roads
As to the challenge to the local law that limits non-residential structures on the town’s residential roads in residential districts, the town says Horowitz hasn’t actually suffered any real injury from the law as he has neither applied to establish a house of worship at his home, nor has he applied for a necessary “use” variance that would exempt him from the local law.
The Town explained upon Local Law 5’s enactment that the law was meant to “(1) Preserve the suburban and remaining semi-rural character of the Town; (2) Develop zoning and building regulations that reduce or restrict odors, sounds, commercial traffic, light pollution and other negative environmental impacts on residential areas; and, (3) Expand initiatives to safeguard neighborhoods from inappropriately scaled development.”
In its motion to dismiss, the town said Horowitz does not allege “any future non-speculative injury regarding the local law and shouldn’t be allowed to challenge it.”
This is the first test of Local Law 5. Courts have consistently ruled that churches and other houses of worship cannot be entirely excluded from residential zones. The Religious Land Use and Institutionalized Persons Act (RLUIPA) prohibits local rules that substantially burden religious uses unless there’s a compelling interest and no less restrictive alternative.
The town argues that neither the town’s actions, its zoning code, nor its laws substantially burden Horowitz’s religious practices and any speculative injury is hypothetical.
Horowitz filed papers in opposition to the motion to dismiss, arguing the ZBA’s decision was final, and that the ZBA has “burdened Plaintiffs religious exercise by prohibiting Plaintiff from using his home for prayers with the local Orthodox Jewish community.” He “sincerely believes that he must provide a location to lead prayers for Jews that live in the area and that this location must be within walking distance of the attendees.”
His lawyers argue the “current layout and size of Rabbi Horowitz’ home imposes significant burdens on his religious exercise, and on those who pray with him” and the “current space is not large enough to accommodate all those who seek to pray with him.” He cannot engage in various forms of religious exercise without his proposed addition.
Horowitz is represented by Nanuet-based Savid Churgin and Washington-based Storzer & Green, PLLC. Clarkstown if represented by Wilson, Elser, Moskowitz, Edelman & Dicker, LLP.
A status conference is set before the court on July 22.
