Lubavitch of Old Westbury, Inc. v. Vill. of Old Westbury

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LUBAVITCH OF OLD WESTBURY, INC. and RABBI AARON KONIKOV, Plaintiffs, v. INCORPORATED VILLAGE OF OLD WESTBURY, NEW YORK, Defendant.

No. 08-CV-5081 (GRB)(LGD)

United States District Court, E.D. New York

February 16, 2024

MEMORANDUM OF DECISION & ORDER

GARY R. BROWN, United States District Judge

According to the official history of the Incorporated Village of Old Westbury, the area was settled by Quakers, after which for “the next 225 years Old Westbury remained virtually isolated by choice from any contact with the outside world.”^[1] Then, according to Old Westbury's historical narrative, came the “Estates Era,” beginning in the 1890s, during which “new large estates were [sic] from prominent New York City families.”^[2] Following World War II, the story goes development in the region “ushered in the third and present way of life for Old Westbury which led to the breaking up of these large estates into two-acre residential subdivisions,” but then, “[i]n 1987, the Village up-zoned to four-acre residential properties.”^[3] Against the backdrop of this case, the Village's self-view proves curious.

The Village Board confers at public meetings and (presumably) executive sessions at the Village Hall, located at 1 Store Hill Road. At that address lies a multi-use facility that not only accommodates the needs of the Village Board, but also

(Image Omitted) Old Westbury Village Hall with integrated Post Office facility.

(Image Omitted) Police Vehicles at Village Hall

houses the Village's Police Department (which employs 35 individuals and includes a detective bureau, a patrol bureau and a communications center^[4]), Administration Building Building Department, Water Department, Justice Court Department of Public Works with a heavy

(Image Omitted) Public Works Equipment at Village Hall

(Image Omitted)

equipment yard,^[5] as well as several offices and warehouses and even a branch of the United States Post Office. Satellite imagery of the facilities reveals an impressive array of buildings, vehicles, mounds of construction material and ample parking spaces to accommodate the multitude of activities.

Thus the Village Hall represents a public epicenter, a hive of governmental, administrative, legal and community affairs. And all of this action takes place on a lot that consists of, according to Nassau County records, 7.63 acres of land.^[6] Nestled in that facility, though, the Village Board decided that to construct any kind of religious facility in the Village requires a minimum of 12 acres of land.^[7]

Somehow, that does not seem right.

Presently before the Court is a Report and Recommendation (“R&R”) of United States Magistrate Judge Lee G. Dunst providing recommendations regarding defendant's motion to dismiss the Second Amended Complaint (SAC) in this 16-year-old civil action, which represents the oldest matter on this Court's docket. The R&R^[8] describes the unacceptably long history of this case. See DE 188 (“R&R”) at 1-2. Even a cursory review of this woeful tale makes it plain that this matter must be moved forward with deliberate speed. First, however, the Court must consider the pending motion and Magistrate Judge Dunst's recommendations.^[9]

In reviewing a Report and Recommendation, the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Both parties have filed objections to the R&R, DE 192 and DE 193, thus requiring de novo review of the matters raised. See 28 U.S.C. § 636(b)(1)(c); Fed.R.Civ.P. 72(b)(3) (requiring de novo review after objections). Importantly, the R&R follows a thoughtful, thorough Memorandum and Order by the Honorable Denis R. Hurley, which permitted the filing of the SAC and reviewed many of the issues dispositive of the instant motions. See Lubavitch of Old Westbury, Inc. v. Inc. Vill. of Old Westbury, New York, No. 08-CV-5081 (DRH)(ARL), 2021 WL 4472852 (E.D.N.Y. Sept. 30, 2021) (Lubavitch I).^[10] In fact, Judge Hurley presents a thorough summary of the allegations of the 121-page SAC and an expertly-crafted overview of the procedural history of this matter, which are incorporated by reference herein.

Plaintiffs have filed objections solely to the recommendation concerning Count 3 of the Second Amended Complaint. See generally DE 193. Evidencing a predilection for overlitigation and elevation of form over substance, defendant objects to numerous recommendations, including recommendations that portions of its motion to dismiss should be granted. See generally DE 192. To the extent the parties have not filed specific objections to certain recommendations, those are reviewed under a clear error standard.

Facial Challenges and Ripeness of As-Applied Challenges to the Places of Worship Law

Defendant's primary objections, as well as much of the instant motions appear rooted in purported jurisdictional challenges based on ripeness, as well as continuing arguments as to whether plaintiffs have properly raised facial challenges to the POW Law. Following a de novo review, Judge Hurley persuasively and eloquently determined that “[t]he SAC challenges the POW Law as unconstitutional on its face and alleges injury independent of Defendants' handling of Plaintiffs' land-use application,” thereby averting any ripeness issue.^[11] Defendant, however, continues to press these arguments, even though Judge Hurley largely resolved these questions in his Memorandum and Order.

A. The Validity of Facial Challenges

On this motion, defendant endeavors to reargue the sufficiency of plaintiffs' allegations supporting a facial challenge to the POW Law, principally by relying on another district court opinion which, in a somewhat different context, found the POW Law facially neutral.^[12] DE 181-5 at 18 (citing Roman Catholic Diocese of Rockville Center v. Incorporated Village of Old Westbury, 128 F.Supp.3d 566 (E.D.N.Y. 2015)). With respect to this case, there are several distinguishing features and parts of the analysis with which this Court is forced to disagree.

First, in reaching its conclusion, the Roman Catholic Diocese decision accepted defendant's apparently unchallenged argument that, under the POW Law, “places of worship are treated the same as, or better than, not-for-profit schools, which are the only other institutions allowed in the Village's Residential Districts,” Roman Catholic Diocese, 128 F.Supp.3d at 583, an argument repeatedly made in this proceeding. See, e.g., 181-5 at 9 (“The POW Law imposed more stringent requirements for the development of non-profit schools.”). The argument proves misleading.^[13] The POW Law does include requisites for the development of private schools that are either coextensive or, in some instances, more restrictive than those imposed on places of worship in that amendment to its zoning code. See DE 181-4 (text of POW Zoning Amendment).

However, the comparison between the provisions applied to places of worship and private schools is solely a creation of the Board's action in formulating the POW Law-the Trustees could have, just as easily, created an amendment affecting the construction of religious edifices and, say, iron smelting facilities, which would have almost certainly created a favorable comparison. The Village's action in enacting contemporaneous amendments affecting religious institutions and private schools does not limit the universe of analysis of a facial challenge, as the POW Law is part of a larger, coherent zoning code regulating land use. A review of that zoning code reveals that the Village imposes less onerous requisites on landowners who opt to develop land for residential purposes, see Old Westbury, N.Y., Code § 216-13, a distinction that might be justifiable given that private residential uses and more public uses of land can implicate different concerns. However, the Village Code also provides far more generous provisions for many types of non-residential, commercial and public development. The Roman Catholic Diocese case, accepting the apparently unchallenged assertions by defendants, found that the POW Law “treats places of worship better than many other secular institutional uses, such as theaters, recreational clubs, membership organizations, and entertainment venues, which are not permitted in the Village at all.” See Roman Cath. Diocese, 128 F.Supp.3d at 583 (citing “Def. Opp. at 11.”). In fact, the Village's zoning code permits many types of non-residential development in its so-called “residential” zones and imposes seemingly more stringent requirements on religious uses than it does on professional offices, public schools, public utility facilities, farms, private and commercial horse stables,^[14] and the Village's own “municipal uses and purposes,” a few of which are described above. See Old Westbury, N.Y., Code §§ 216-11, -12; Tandon v. Newsom, 593 U.S. 61, 62 (2021) (“government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise”).

Roman Catholic Diocese also holds that “the POW Law must be analyzed in the context of New York State public policy.” 128 F.Supp.3d at 582. The decision suggests that “the enactment of the POW Law [ ] to ensure the development of these institutions in a manner consistent with the residential character of the Village and to mitigate the adverse impacts related to these institutional uses” was consistent with New York State public policy. See Id. However, a state court considering the POW Law noted that “in New York[,] as a matter of public policy religious uses of land are presumptively beneficial to the public.” McGann v. Inc....