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



In rejecting the plaintiffs' Fair Housing claim, the court below determined that the evidence failed to show discriminatory intent in the formation of the Village of Airmont, or in the steps taken by the Village since its formation. Rather, the court asserted, the defendants were motivated by their "dissatisfaction with the Town [of Ramapo]'s lax zoning" -- just as other groups were so dissatisfied, and as a result founded other independent villages within Ramapo. 389 F.Supp. at 1063.

The Disparate Impact Doctrine

Putting aside for the moment the court's factual determination with respect to motivation, we submit that the court misapprehended the applicable legal standard by which to judge plaintiffs' Fair Housing claim. In Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988), this Court held that a municipality's housing policies that have a disparately adverse impact on a particular group establish a prima facie case of Fair Housing discrimination even absent evidence of intentional discrimination.

The precise motivation of those who founded the Village of Airmont is thus ultimately of little moment; whether they sought to enforce "strict zoning" specifically because they hoped thereby to discourage Orthodox Jews from moving into the community, or because they sought to take steps to preserve the character of the community, is legally beside the point. The bottom line remains that "strict zoning" with respect to houses of worship -- zoning laws that prohibit the use of private residences as houses of worship, and impose expansive space requirements on neighborhood houses of worship that make compliance with the zoning laws prohibitively expensive for small congregations -- has a disparate impact upon religious practitioners, and especially Orthodox Jews.

The court below was thus wrong to compare these cases to Weiss v. Willow Tree Civic Association, 467 F.Supp. 803 (S.D.N.Y. 1979), in which "the late Judge Edward Weinfeld described the case as being essentially a local zoning dispute despite the variety of claims charging violation of the plaintiff's federal statutory and constitutional rights." 839 F.Supp. at 1066. Weiss involved a dispute over the application of neutral zoning laws, having nothing to do with houses of worship, to a proposed housing development that was owned by Orthodox Jews. The issue was whether a private civic association's opposition to the housing development constituted a violation of the developers' civil rights. At issue here, in contrast, is the establishment of a Village and the adoption of a broad zoning policy designed to impose substantial restrictions on houses of worship, a policy that has as an especially adverse impact on one particular religious community.

In short, this is no "local zoning dispute." The court below was wrong to treat it as such, and wrong to disregard the disparate impact defendants' zoning code has on Orthodox Jews.

Anti-Orthodox Bias

We submit, moreover, that the court below was wrong to conclude that the evidence was insufficient to establish intentional discrimination. In its recitation of the history leading up to the formation of the Village of Airmont, the court duly noted the steps taken by members of the Airmont Civic Association to oppose the establishment of Rabbi Sternberg's home house of worship and Rabbi Friedman's synagogue, 839 F.Supp. at 1059; the stationing of persons outside Rabbi Sternberg's home to count the number of congregants entering his home for prayer services, 839 F.Supp. at 1060; and the resignation of several early members of the Civic Association because they "had begun to suspect that Fletcher's vehement opposition to residential houses of worship was not caused solely by the usual zoning concerns, but had an anti-Orthodox underlay to it." 839 F.Supp. at 1061.

Yet in the face of these clear findings, the court made the following astonishing observation:

"The plaintiffs contend that the Village of Airmont has developed a reputation as a community hostile to Orthodox and Hasidic Jews. If it has, it is largely the result of these three lawsuits brought against it by the various plaintiffs and the extensive publicity plaintiffs have intentionally generated." 839 F.Supp. at 1063.

The court went on to observe that the evidence did not suggest "any substantial difference between the people of Airmont and other Ramapo residents who spearheaded separate movements to incorporate villages within the Town." Id. That may be so -- in which case the problem exposed by these lawsuits extends far beyond the boundaries of Airmont.

Indeed, Ramapo Town Supervisor Herbert Reisman apparently agrees that if there is any difference between Airmont and other communities in the town of Ramapo that have formed their own villages, it is a difference of degree rather than of kind. Shortly after the Sternberg plaintiffs filed their lawsuit, Mr. Reisman was quoted in The New York Times:

"In the early 1980's, Mr. Reisman said, some residents of two other areas of Ramapo began 'the village movement' that many people say is intended to exclude Orthodox Jews. Those areas, Wesley Hills and New Hempstead, formed separate villages after a Hasidic sect bought land in both places, which are north of Central Monsey....

"'The motivation of some people is that they do not want the ultra-Orthodox or the Hasidim to move in,' he said....

"Airmont, though, represents a break from the past, Mr. Reisman said. 'The spokespeople for the village of Airmont have been more blunt in what they say publicly,' he said." (Orthodox Jews Battle Neighbors in a Zoning War, New York Times, June 3, 1991.)

We are loathe to make this observation, but the failure of the court below to discern any anti-Orthodox animus in the Ramapo village movement, and especially in the circumstances surrounding the formation of the Village of Airmont, can perhaps best be understood by reviewing certain aspects of the decision below that may betray the court's own attitude toward Orthodox Jews.

In its opening section, the decision below finds it "necessary" to provide "some discussion of Judaism, its divisions and practices." 839 F.Supp. at 1055. In so doing, the court recites a number of purported facts that cast Orthodox Jews -- indeed, Orthodox Judaism -- in an unfavorable light. For example: "Judaism, like many ancient religions, appears male oriented. Indeed, if Orthodox Jews have children at home, on Friday night women are expected to be preparing meals rather than attending worship service." 839 F.Supp. at 1055-56 n.1. "During Orthodox services, the men cannot see the women, who are kept segregated at the back. One Orthodox witness testified that it is improper for an Orthodox male to hear any woman sing other than his wife. In a Reform temple, the congregation is not gender segregated and, indeed, both the Rabbi and Cantor can be women." 839 F.Supp. at 1056 n.2. "Orthodox witnesses in this case refer to the Conservatives and Reform Jews as 'not observant' and 'as assimilated.'" 839 F.Supp. at 1056. These purported facts have absolutely nothing to do with the issues raised in this case -- except, ironically, to the extent that they reflect and reinforce negative stereotypes about Orthodox Jews.

The court further belittled the legitimate and serious concerns raised by the facts of this case. Most notably, the court pooh-poohed the outrageous actions of Airmont residents in posting themselves outside Rabbi Sternberg's home synagogue to count the congregants arriving for prayer services, finding itself unable to characterize this gross act of intimidation and harassment as anything more than "no doubt annoying to Rabbi Sternberg and his congregation" -- while hastening to add that "they did not in any way impair the conducting of services or other proceedings by the Rabbi at the Sternberg home." 839 F.Supp at 1060.

The decision below is thus not only wrong as a matter of law; it is hurtful and offensive. Like the circumstances surrounding the formation of the Village of Airmont, the decision appears to be infected with a lack of sensitivity toward Orthodox Jews and their religious needs -- a lack of sensitivity bordering on outright animus.

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