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Leblanc-Sternberg v. Fletcher
United States Court of Appeals
for the Second Circuit (1994)




In describing the post-litigation developments in these cases, the court below observed: "With respect to synagogues, nothing other than the passing of the zoning code ... has occurred which even remotely bears on the issue." 839 F.Supp. at 1063. The "passing" of the zoning code, however, bears substantially on the issues presented in this case, because it affords an opportunity to evaluate whether the Village of Airmont is prepared adequately to safeguard the religious rights asserted by the plaintiffs.

The Village of Airmont zoning code is similar to the Town of Ramapo's. However, "[v]iewing the evidence in the light most favorable to the Government, we can foresee that the Planning Board and the Zoning Board [of the Village of Airmont]... will not adopt the Ramapo interpretation of the home professional office exception." 839 F.Supp. at 1064 (footnote omitted). Stated otherwise, the court below foresaw that the Village of Airmont might well prohibit the use of homes as houses of worship.

Yet the prospect of an outright Village ban on home houses of worship did not faze the court. Nor did the Village code's insistence on two-acre lots for neighborhood places of worship in non-R15 zones. Relying primarily on several federal circuit court rulings, the court below concluded that a municipality's interest in maintaining the integrity of its zoning laws could outweigh the religious rights of persons seeking to establish non-conforming houses of worship, so long as "the practice of religion... may be carried on in other locations." Id. at 1065.

Agudath Israel submits that this conclusion was erroneous. There is, concededly, a body of case law that minimizes the free exercise of religion protections available to religious practitioners and religious institutions when their interests conflict with a municipality's zoning standards. But there is also a body of case law that places higher value on free exercise considerations, and requires non-health-and-safety related general zoning interests to yield when they burden religious practice. We believe that the First Amendment's free exercise clause, as well as the recently enacted Religious Freedom Restoration Act (RFRA), compel the conclusion that this latter view is the correct view; and we call upon this Court, which has long been a champion of religious liberty, to align the Second Circuit with "the majority position,... [which] gives considerable deference to religious uses." Pearlman, Zoning and the Location of Religious Establishments, 31 Catholic Lawyer 314 (1988).

The Applicable Free Exercise Standard

In its most recent pronouncement in the field of free exercise jurisprudence, Church of the Lukumi Babalu Aye v. City of Hialeah, 113 S. Ct. 2217 (1993), the Supreme Court summarized its current understanding of the First Amendment's protections:

"In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. Employment Div., Dept. of Human Resources of Oregon v. Smith, [494 U.S. 872 (1990)]... A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest." 113 S.Ct. at 2226.

"A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance 'interests of the highest order' and must be narrowly tailored in pursuit of those interests. [Citations omitted.] The compelling interest standard that we apply once a law fails to meet the Smith requirements is not 'water[ed] ... down' but 'really means what it says.' [Citation omitted.] A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases." Id. at 2233.

The Village of Airmont's zoning code, we submit, must be analyzed under this higher level of strict scrutiny. At issue on this appeal are zoning ordinances aimed directly at religious practices. The Village of Airmont has established a two-acre minimum for houses of worship in non-R15 zones; and has gone out of its way to adopt language in its home professional office zoning ordinance that differs from the language in the Ramapo code, allowing the inference that home houses of worship may not be permitted. These acts of government cannot fairly be deemed "neutral" or "generally applicable." They single out places of religious worship for distinctive treatment, and are therefore constitutionally permissible only if they are narrowly tailored to satisfy a compelling government interest.

Even if the zoning ordinances adopted by the Village of Airmont are deemed "neutral" and "generally applicable," thereby bringing them within the no free exercise protection rule of Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), they still must be analyzed under the compelling interest test. That is because the Religious Freedom Restoration Act, which was signed into law in November 1993, statutorily mandates strict scrutiny even in cases where religious exercise is burdened only incidentally by a neutral law of general applicability. The relevant section of RFRA, 42 U.S.C. 2000bb-1, reads as follows:

"(a) In general: Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception: Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person --

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest."

At least two federal district courts have already applied RFRA to cases involving conflicts between zoning laws and religious freedom. The first, Western Presbyterian Church v. Board of Zoning Adjustment of the District of Columbia, 849 F.Supp. 77 (D.D.C. 1994), relied on RFRA (as well as the First Amendment) to grant a preliminary injunction against the application of the D.C. zoning regulations in a manner that precluded the plaintiff church from feeding homeless persons in its church premises. The second, Celestial Church of Christ v. City of Chicago, 1994 WL 282304 (N.D. Ill.), expressly acknowledged the applicability of RFRA's compelling interest test in a case involving a church's challenge to a zoning ordinance requiring houses of worship to obtain special use permits for commercial districts. (The court did not have occasion to evaluate the merits of the challenge.)

The bottom line, therefore, is clear: Insofar as the Village of Airmont's zoning code substantially burdens religious exercise, it may do so only if it furthers a compelling governmental interest, and is narrowly tailored -- "the least restrictive means" -- to achieve that purpose.

The Substantiality of the Burden

The court below took the position that the burden on religious practice imposed by the Village of Airmont's zoning code was insubstantial. Relying on Messiah Baptist Church v. County of Jefferson, Colo., 859 F. 2d 820 (10th Cir. 1988), the decision below emphasized that the establishment of a house of worship -- as opposed to the act of prayer -- is not a fundamental tenet of religion. Thus, "requirements limiting the construction of a house of worship do not necessarily restrict the practice of religion, which may be carried on in other locations." 839 F.Supp. at 1065.

The view that local prohibitions against the establishment of houses of worship are not infringements on free exercise freedoms apparently had its genesis in Lakewood, Ohio Congregation of Jeohva's Witnesses v. City of Lakewood, Ohio, 699 F. 2d 303 (6th Cir.), cert. denied 464 U.S. 815 (1983), another case cited by the court below. At issue in Lakewood was the constitutionality of a city zoning ordinance prohibiting construction of houses of worship in virtually all residential districts, leaving only ten percent of the city available for such construction. The Sixth Circuit upheld the ordinance, finding that the building of a house of worship is a "purely secular act", entitled to no free exercise protection -- despite what the court characterized as the "indirect financial burden and a subjective aesthetic burden" the ordinance would concededly impose upon religious worshipers. 699 F. 2d 307.

Similarly, in Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir. 1983), also relied on by the court below, the Eleventh Circuit conceded that it did not "know the exact impact ... in terms of convenience, dollars or aesthetics, that a change of location would entail." It nonetheless concluded that a congregation that had been gathering for prayer services in an elderly rabbi's home, located in a residential area that prohibited houses of worship, could be compelled to relocate; the congregation "may conduct the required services in suitably zoned areas, either by securing another site away from their current house or by making their home elsewhere in the city." 721 F.2d at 739.

We urge this Court emphatically to reject the approach of Lakewood, Grosz and the other cases that attach no free exercise consequence to the costs imposed by zoning ordinances that severely restrict the permissibility of establishing houses of worship. As one commentator has noted, this approach would all but eviscerate religious freedom protections in the context of land use policy:

"One result of this refusal to examine the economics of the plaintiff's situation is that it raises the possibility of removing a religious group from the home of its leader when the group can afford no other place of worship...

"[T]he court [in Grosz] echoed Lakewood's belittling of the religious interests as a matter of 'convenience, dollars or aesthetics.' The use of this characterization significantly narrows the scope of religious protection in the land use area. Absent a religion whose beliefs center on the land itself, any religious use of land may, under this analysis, be defined as secular and denied protection. The result, in other words, is a per se rule against application of free exercise analysis to church land use controversies. [T]his result opens up the possibility of restrictive regulation of free exercise rights through the medium of land use ordinances." Note, Land Use Regulation and the Free Exercise Clause, 84 Colum. L. Rev. 1562, 1571-72 (1984) (footnotes omitted).

A more realistic approach, sensitive to the practical free exercise implications of zoning restrictions on houses of worship, was adopted by the Fifth Circuit in Islamic Center of Mississippi v. City of Starkville, Mississippi, 840 F. 2d 293 (5th Cir. 1988). Rejecting the contention that free exercise interests were not burdened through application of a zoning ordinance to prohibit the use of a residential facility as a prayer center for Islamic college students, the court noted:

"The district court's opinion and the City's brief both suggest that application of the zoning ordinance to the Islamic Center places no burden on it or its members because they can establish a mosque within walking distance of the campus outside the city limits or buy cars and ride to more distant places within the City. The suggestion is reminiscent of Anatole France's comment on the majestic equality of the law that forbids all men, the rich as well as the poor, to sleep under bridges, to beg in the streets, and to steal bread. Laws that make churches, synagogues, and mosques accessible only to those affluent enough to travel by private automobile obviously burden the exercise of religion by the poor, a class that includes many students. And a city may not escape the constitutional protection afforded against its actions by protesting that those who seek an activity it forbids may find it elsewhere. By making a mosque relatively inaccessible within the city limits to Muslims who lack automobile transportation, the City burdens their exercise of their religion." 840 F. 2d at 298 (footnotes omitted).

See also, e.g., Messiah Baptist Church v. County of Jefferson, State of Colorado, 859 F. 2d 820, 828-29 (10th Cir. 1988) (McKay, J. dissenting). ("Places of worship have in almost all religions been as integral to their religion as have Sunday School, preaching, hymn singing, prayer, and other forms of worship we have traditionally recognized as the 'exercise' of religion ... [W]hen government agencies seek to encumber the use of buildings for religious worship, they are, in fact, impinging on speech, assembly, and religious exercise through the use of zoning ordinances."); Community Synagogue v. Bates, 1 N.Y. 2d 445, 458 (1956) ("[I]f the municipality has the unfettered power to say that the 'precise spot' selected is not the right one, the municipality has the power to say eventually which is the proper 'precise spot.' That, we all can see, is the wrong solution. The men and women who left Scrooby for Leyden and eventually came to Plymouth in order to worship G-d where they wished and in their own way must have thought they had terminated the interference of public authorities with free and unhandicapped exercise of religion.").

These considerations, applied to the zoning code adopted by the Village of Airmont -- a code that permits houses of worship in non-R15 areas only on two acre properties, and foreseeably prohibits home houses of worship -- demonstrate the substantial burden the code would impose on the free exercise rights of Orthodox Jews.

Communal prayer is an integral part of Orthodox Jewish practice. Synagogues must be within walking distance, for it is prohibited to travel on the Sabbath or Holidays. There are, moreover, numerous traditions within Orthodoxy, with different customs, rituals and prayer services.

Small home synagogues afford Orthodox rabbis realistic opportunities to lead congregations, and afford Orthodox congregants an opportunity to worship under the religious direction of a rabbi of their choosing. Moreover, they afford these opportunities in a manner that is affordable. To totally ban them, and then to insist that congregations of different backgrounds and customs within Orthodoxy join together under the direction of one rabbi at one location after acquiring a two acre parcel, is to impose a significant burden on religious exercise. Yet that is what the Village of Airmont's zoning code would do. The happenstance that the Village authorities apparently have chosen not to enforce these code requirements during the pendency of this litigation -- a fact to which the court below attached great significance, 839 F.Supp. at 1063 -- in no way diminishes the restrictive authority the code confers upon them.

What is striking is that the court below acknowledged most of these factors, though it failed to accord them any legal weight. Thus, in commenting on the "reasons for the popularity of shteebles" (home houses of worship), the court stated:

"[S]ince the Orthodox cannot ride on the Sabbath, they prefer having their place of worship as near to their homes as possible. However, even in instances where a traditional free-standing synagogue (or 'shul') is within reasonable walking distance, the congregants of a particular rabbi often prefer continuing to worship with him at his home. Also, the cost per congregant is less to support a shteeble than a shul." 839 F.Supp. at 1057.

The court further noted the apparent availability of a two acre lot in Airmont "within reasonable walking distance of all these people but, for various reasons, including their adherence to two different rabbis, there has been no movement in that direction." 839 F.Supp. at 1063.

Contrary to the court's condescension, having a place of worship within walking distance is no mere "preference" for Orthodox Jews; it is an absolute prerequisite. Worshiping with a particular rabbi is also no mere "preference"; it is a fundamental aspect of religious freedom to be able to choose the clergyman under whose direction one wishes to worship and grow spiritually. If Orthodox residents of Airmont "adhere to two different rabbis," such adherence is at the core of free exercise values. Finally, the lower economic cost of establishing a small home house of worship is not merely a "reason for the popularity of shteebles"; for lower-income Orthodox Jews, who cannot afford to support a full-size congregation on a separate two acre plot, prohibiting home houses of worship effectively precludes them from joining the community.

To uphold the approach adopted by the court below would be to ignore the very real impositions on religious freedom imposed by the Village of Airmont. We urge this Court to adopt an approach more solicitous of free exercise values.

The Nature of the Governmental Interest

Courts that have evaluated the strength of the governmental interest in restricting the availability of houses of worship have spoken of a variety of factors. In Grosz, for example, the Eleventh Circuit recited some of the disruptions created by the presence of a home synagogue in a residential area of Miami Beach:

"Daily services usually cause no substantial disturbance to the neighborhood, but well-attended services have disturbed neighbors as a result of persons seeking directions to the Grosz shul, as a result of chanting and singing during the services, and as a result of the occasionally large congregations of worshippers at the property." 721 F.2d at 732.

Other concerns include increased traffic flow, parking problems, diminutions in adjacent property values, and occasional "disruptions and unpleasantness" such as those described by the court below, 839 F.Supp. at 1059.

As noted above, however, in order for a governmental body to justify imposing a substantial burden on religious exercise, the interest it seeks to pursue through such imposition must be "compelling"; and the imposition must be narrowly tailored, "the least restrictive means," of achieving that interest. The concerns typically recited in support of zoning restrictions on religious institutions do not, we submit, rise to the level of a compelling governmental interest.

We would support the formulation advanced by Chief Judge Breitel, concurring in Jewish Reconstructionist Synagogue of North Shore v. Incorporated Village of Roslyn Harbor, 38 N.Y. 2d 283, 291-92 (1975): "Fundamentally, the law should move in the direction of requiring even religious institutions to accommodate to factors directly relevant to public health, safety, or welfare, inclusive of fire and similar emergency risks, and traffic conditions insofar as they involve public safety." Those, we agree, are compelling governmental interests. Not so is government's interest in safeguarding neighbors against the minor inconveniences and disruptions of having a house of worship in the neighborhood.

The Village of Airmont's zoning code seeks to advance many interests -- some of them arguably compelling, many of them not. Because the code is not narrowly tailored to address the types of fundamental concerns identified by Chief Judge Breitel, it fails the test of free exercise. The ruling of the court below to the contrary is erroneous, and should be reversed.

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