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Nike/Mosdos—Federal Judge Tosses Bias Claim Against the five Villages April 8, 2010 In the latest legal milestone in the ongoing odyssey of the Nike Base, U.S. District Judge Kenneth Karas has thrown out the religious discrimination lawsuit brought against the five villages that opposed the ASH (Adult Student Housing) project on Grandview Avenue. Karas’ dismissal was delivered in a written opinion dated March 31, 2010. The RLUIPA club that was wielded by the developers against the villages has been cast aside, Christopher St. Lawrence’s innovative ASH dispensation from zoning laws has been rebuked, and the judge found the charge that the residents "began to establish villages for the purpose of controlling who resided within each village" and to exclude the "increasing Orthodox and Hasidic Jewish population" was baseless.The Story So Far In Brief—In May of 1997, the religious corporation Mosdos Chofetz Chaim bought the 4.7 acres on Grandview Ave. known as the Nike Site. At the time, the property was under the jurisdiction of New Hempstead. With the demolition of the military buildings on site, the Village complained that the work was releasing lead and friable asbestos contamination. On June 2, 1997, Yeshiva Chofetz Chaim filed a lawsuit claiming that "New Hempstead had incorporated as a village in 1984 in order to ‘exercise control over zoning and planning and not accommodate the housing needs or religious practices of ultraOrthodox Jews.’" On December 14, 2000, Magistrate Judge Lisa Smith ordered a stipulation of settlement. The parties agreed that the Nike Site would be transferred from the jurisdiction of New Hempstead to Ramapo, including its zoning code. In 2001, Christopher St. Lawrence revised Ramapo’s Master Plan to allow for something he called Adult Student Housing zoning, which would allow enormous projects in the middle of single-family neighborhoods. He created four of these zones, which included Patrick Farm, the Nike Base, property on Highview Road, and a parcel on Route 306 opposite Brick Church Cemetery on which Zichron Menachem has proposed building 54 apartments with a yeshiva. ASH was enacted on June 14, 2004, and shortly thereafter, Mosdos applied for site plan approval for construction of an adult-student-housing facility on the Nike Base. On October 13, 2004, the villages of Chestnut Ridge, Montebello, Pomona, and Wesley Hills, along with two individual residents filed a proceeding in New York Supreme Court challenging ASH. The New York Supreme Court issued an unpublished decision rejecting the challenges to the ASH zoning law, but the court did hold that the Ramapo Town Board "had violated SEQRA (environmental review process) when it issued the negative declaration as to the Nike Site. The board had failed to take a hard look at several areas including increased density on the character of the surrounding community, the traffic impact, as well as the public sewer and water impacts." The next legal step of the Nike developers was to initiate a lawsuit against the villages and the individual mayors and boards for $100,000,000, claiming discrimination and violation of their first amendment rights. On July 7, 2008, the five villages, on their part, filed a Motion to Dismiss, and last week, Judge Karas dismissed the discrimination lawsuit. Cast of Characters—There are the developers, the Town of
Ramapo and the five villages. Developers: Rabbi Mayer Zaks, and Rabbi Aryeh Zaks, Mosdos Chofetz Chaim, Inc., Yeshiva Chofetz Chaim, Inc., and two individuals who seek residence at the development Rabbi James Berstein and Moshe Ambers. Villages: Wesley Hills, New Hempstead, Pomona, Chestnut Ridge, and Montebello. Judge Karas’ Decision to Dismiss the Mosdos Suit The attorney representing Pomona, Gregory Saracino of Milber Makris Plousadis & Seiden, noted that it took just over a year for Judge Karas to issue an order after the motion was argued in court. "Judge Karas obviously took a deep interest in this case," he said explaining that the 57-page document was thoroughly documented with case law from all over the country. In the first part of his written decision, Judge Karas dismissed the developers, the Zaks brothers. He wrote, "Aryeh Zaks and Meyer Zaks have failed to allege that they have personally suffered any injury from the delay in Mosdos’s ability to operate Kiryas Radin (Yeshiva on the Nike Site). For example, they do not allege that they intend to work, teach, or study at Kiryas Radin. While both these Plaintiffs generally allege that they are ‘religious leaders of the Yeshiva Chofetz Chaim, the Court is aware of no authority, and the Plaintiffs have cited none, that confers standing on the leaders of a religious corporation based on the religious corporation’s injury. They lack standing to pursue this action, and, accordingly, their claims are dismissed." In his conclusion, Judge Karas wrote: "Plaintiffs' allegations of religious discrimination and interference with their First Amendment rights fall into three main categories. First, Plaintiffs allege that certain Defendants filed a lawsuit in New York state court challenging the Plaintiffs' religious housing project because of environmental concerns. Plaintiffs allege that the environmental concerns were a "pretext," and that the real purpose of the lawsuit was to intimidate Plaintiffs and to prevent Plaintiffs from building their religious student housing project on account of Plaintiffs' religion. Next, Plaintiffs object to Defendants' zoning laws, alleging that the Defendant Villages were incorporated in order to "provide local zoning regulations inconsistent with the religious practices of the Orthodox and Hasidic Jewish communities." For example, Plaintiffs allege that New Hempstead Defendants adopted zoning regulations in order to "create enormous difficulty" for the Orthodox and Hasidic communities, that Pomona Defendants enacted restrictive zoning laws for the purpose of unfairly discriminating and restricting the religious assembly and speech of, the Jewish community, and that the other Defendants enacted similarly discriminatory zoning laws or aided in the effort to violate Plaintiffs' Constitutional and statutory rights. Lastly, Plaintiffs allege that New Hempstead Defendants made false representations to federal, state, and local government agencies regarding environmental contamination on Plaintiffs' property in order to "thwart the Yeshiva's development and religious use" of the property. Plaintiffs also allege that these false allegations "chill[ed] community relations and creat[ed] an environment of fear and hatred towards the Yeshiva and the local Hasidic community", and were part of a continuous pattern of action by Defendants to discriminate against Plaintiffs and to prevent the construction of their religious housing project." About the dismissal of the claims, attorney Saracino explains, "The court rejected the Yeshiva’s contention that the villages designed their zoning laws to keep the Orthodox Jewish Community out of the villages. Judge Karas held that ‘Plaintiffs have not adequately alleged a link between those zoning laws and their claimed injuries.’ I don’t think the court invented any new law here, but his Honor certainly clarified some perplexing legal concepts and cited strong legal authority from all over the nation." Doris Ulman, attorney representing Pomona and Chestnut Ridge, told The Journal News, "A motion to dismiss is very difficult to obtain in the federal court, because what it is saying is basically. . .this lawsuit is going to stop right now because plaintiffs have not alleged anything that is sufficient to go to trial." With Karas’ dismissal of the items in the lawsuit, she said, "It will be difficult for the plaintiffs to prosecute further action against the villages." When we asked Mr. Saracino whether he thought the Mosdos group would be back in court, he answered, "Absolutely—I believe that they will." But he added that it will be much more difficult for them in the next attempt, and he believes the outcome will be the same as that published by Judge Karas last week. (Full text of the Karas decision can be read here.)
Michael Castelluccio
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