Westchester Day School v. Vill. of Mamaroneck

06-1464-cv
Westchester Day School v. Vill. of Mamaroneck
UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2
3 _______________ 4
5 August Term, 2006 6
7 (Argued December 1, 2006 Decided October 17, 2007) 8
9 Docket No. 06-1464-cv 10
11 _______________ 12
13 Westchester Day School, 14
15 Plaintiff-Appellee, 16
17 v. 18
19 Village of Mamaroneck, The Board of Appeals of the Village of 20 Mamaroneck, Mauro Gabriele, In his official capacity as member of 21 the Board of Appeals of the Village of Mamaroneck, George 22 Mgrditchian, In his official capacity as member of the Board of 23 Appeals of the Village of Mamaroneck, Peter Jackson, In his 24 official capacity as member of the Board of Appeals of the 25 Village of Mamaroneck, Barry Weprin, In his official capacity as 26 member of the Board of Appeals of the Village of Mamaroneck, 27 Clark Neuringer, In his official capacity as member of the Board 28 of Appeals of the Village of Mamaroneck and Antonio Vozza, In his 29 official capacity as a former member of the Board of Appeals of 30 the Village of Mamaroneck, 31
32 Defendants-Appellants, 33
34 United States of America, 35
36 Intervenor-Defendant. 37
38 _______________ 39
40 Before: 41 CARDAMONE, and RAGGI, Circuit Judges, 42 and BERMAN, District Judge*. 43
44 _______________ 45
46
47 _______________ 48
49 * Hon. Richard M. Berman, United States District Judge for the 50 Southern District of New York, sitting by designation. 51

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_______________ 1
2 Defendant Village of Mamaroneck appeals from a judgment of 3 the United States District Court for the Southern District of New 4 York (Conner, J.) entered March 3, 2006, ruling that the Village 5 violated the Religious Land Use and Institutionalized Persons Act 6 by denying Westchester Day School a special permit to expand its 7 facilities. 8
9 Affirmed. 10
11 _______________ 12
13 JOEL C. HAIMS, Morrison & Foerster LLP, New York, New York (Jack 14 C. Auspitz, Morrison & Foerster LLP, New York, New York; 15 Stanley D. Bernstein, Berstein Liebhard & Lifshitz, LLP, New 16 York, New York, of counsel), for Plaintiff-Appellee. 17
18 KEVIN J. PLUNKETT, White Plains, New York (Robert Hermann, Darius 19 P. Chafizadeh, Thacher Proffitt & Wood LLP, White Plains, 20 New York; Joseph C. Messina, Lisa M. Fantino, Law Office of 21 Joseph C. Messina, Mamaroneck, New York, of counsel), for 22 Defendants-Appellants. 23
24 SARAH E. LIGHT, Assistant United States Attorney, New York, New 25 York (Michael J. Garcia, United States Attorney, Sara L. 26 Shudofsky, Assistant United States Attorney, Southern 27 District of New York, New York, New York; Wan J. Kim, 28 Assistant Attorney General, David K. Flynn, Eric W. Treene, 29 Sarah E. Harrington, U.S. Department of Justice, Civil 30 Rights Division, Appellate Section, Washington, D.C., of 31 counsel), for Intervenor-Defendant and Amicus Curiae the 32 United States of America. 33
34 _______________ 35
36
Derek L. Gaubatz, Washington, D.C. (Anthony R. Picarello, Jr., 37 Lori E. Halstead, The Becket Fund for Religious Liberty, 38 Washington, D.C., of counsel), filed a brief on behalf of 39 the Becket Fund for Religious Liberty, the Association of 40 Christian Schools International, and the Council for 41 Christian Colleges and Universities as Amici Curiae. 42
43 _______________ 44

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2
CARDAMONE, Circuit Judge: 1
The appeal before us is from a judgment entered March 3, 2
2006 in the United States District Court for the Southern 3
District of New York (Conner, J.) that ordered the defendant 4
Village of Mamaroneck to issue a permit to plaintiff Westchester 5
Day School to proceed with the expansion of its facilities. For 6
nearly 60 years Westchester Day School (plaintiff, WDS, day 7
school, or school) has been operating an Orthodox Jewish co- 8
educational day school with classes from pre-school to eighth 9
grade. Believing it needed to expand, the school submitted 10
construction plans to the Village of Mamaroneck and an 11
application for the required special permit. When the village 12
zoning board turned the application down, the present litigation 13
ensued. 14
In the district court the school argued that the zoning 15
board in denying its application for a permit violated the 16
Religious Land Use and Institutionalized Persons Act (RLUIPA or 17
Act), 42 U.S.C. § 2000cc et seq., by substantially burdening its 18
religious exercise without a compelling government interest to 19
justify its action. Following a bench trial, the district court 20
ordered the zoning board to approve the school's application, 21
agreeing that RLUIPA had been violated. 22
BACKGROUND 23
A. Westchester Day School's Property 24
Westchester Day School is located in the Orienta Point 25
neighborhood of the Village of Mamaroneck, Westchester County, 26

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3
New York. Its facilities are situated on 25.75 acres of largely 1
undeveloped land (property) owned by Westchester Religious 2
Institute. Westchester Religious Institute allows the school and 3
other entities to use the property. 4
The school's buildings are far from typical. The original 5
structures were built in the late nineteenth century, one as a 6
summer home and another as a stable. The day school, which 7
opened in 1948, renovated the summer home and the stable to 8
create classrooms. The school constructed Wolfson Hall in the 9
1960s and in 1979 Westchester Hebrew High School, a separate 10
entity from WDS, built a two-story high school building on the 11
property. Thus, currently there are four principal buildings on 12
the property: the summer home (Estate House or Castle), the 13
stable (Carriage House), Wolfson Hall, and the high school 14
building. 15
The Mamaroneck Village Code permits private schools to 16
operate in "R-20 Districts" if the Zoning Board of Appeals of the 17
Village of Mamaroneck (ZBA or zoning board) grants them a special 18
permit. The property is in an R-20 district and WDS operates 19
subject to obtaining such a permit which must be renewed every 20
three years. Most recently the day school's permit was 21
unanimously renewed on November 2, 2000, before the dispute 22
giving rise to this litigation began. Several other schools are 23
located in the vicinity of Orienta Point, including the Liberty 24
Montessori School and Mamaroneck High School. Numerous large 25
properties border the school property, including the Orienta 26

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4
Beach Club, the Beach Point Club, the Hampshire Country Club, and 1
several boat yards. 2
B. Westchester Day School's Aims 3
As a Jewish private school, Westchester Day School provides 4
its students with a dual curriculum in Judaic and general 5
studies. Even general studies classes are taught so that 6
religious and Judaic concepts are reinforced. In the nursery and 7
kindergarten classes no distinction exists between Judaic and 8
general studies; the dual curriculum is wholly integrated. In 9
grades first through eighth, students spend roughly half their 10
day on general subjects such as mathematics and social studies 11
and half on Judaic studies that include the Bible, the Talmud, 12
and Jewish history. 13
In an effort to provide the kind of synthesis between the 14
Judaic and general studies for which the school aims, the 15
curriculum of virtually all secular studies classes is permeated 16
with religious aspects, and the general studies faculty actively 17
collaborates with the Judaic studies faculty in arranging such a 18
Jewish-themed curriculum. For example, the General Studies 19
Curriculum Guide describes how social studies is taught in grades 20
6, 7, and 8, explaining that WDS tries "to develop an 21
understanding of humanistic, philosophical thought, the nature of 22
cause and effect in history, and the application of ethical 23
Judaic principles to history and daily life" (emphasis added). 24
The Guide further notes that "[s]tudying the history of Eretz 25
Yisrael [the land of Israel] has become an increasingly prominent 26

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5
feature of assemblies and social studies lessons." And, the 1
Guide's Science Curriculum Map notes that in science class first 2
graders are taught about "the world around them [and] the 3
seasonal changes and connections to the Jewish holidays" 4
(emphasis added). 5
The school's physical education teachers confer daily with 6
the administration to ensure that during physical education 7
classes Jewish values are being inculcated in the students. This 8
kind of integration of Jewish and general culture is made 9
possible when a school actively and consciously designs 10
integrated curricular and extracurricular activities on behalf of 11
its student body. See Jack Bieler, Integration of Judaic and 12
General Studies in the Modern Orthodox Day School, 54:4 Jewish 13
Education 15 (1986), available at http://www.lookstein.org/ 14
integration/bieler.htm. Thus, the school strives to have every 15
classroom used at times for religious purposes, whether or not 16
the class is officially labeled Judaic. A Jewish day school like 17
WDS exists, at least in part, because Orthodox Jews believe it is 18
the parents' duty to teach the Torah to their children. Since 19
most Orthodox parents lack the time to fulfill this obligation 20
fully, they seek out a school like WDS. 21
C. The Expansion Project 22
By 1998 WDS believed its current facilities inadequate to 23
satisfy the school's needs. The district court's extensive 24
findings reveal the day school's existing facilities are 25
deficient and that its effectiveness in providing the education 26

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6
Orthodox Judaism mandates has been significantly hindered as a 1
consequence. The school's enrollment has declined since 2001, a 2
trend the district court attributed in part to the zoning board's 3
actions. As a result of the deficiencies in its current 4
facilities the school engaged professional architects, land 5
planners, engineers, and an environmental consulting firm to 6
determine what new facilities were required. Based on these 7
professionals' recommendations, WDS decided to renovate Wolfson 8
Hall and the Castle and to construct a new building, Gordon Hall, 9
specifically designed to serve the existing student population. 10
The renovations would add 12 new classrooms; a learning center; 11
small-group instructional rooms; a multi-purpose room; therapy, 12
counseling, art and music rooms; and computer and science labs. 13
All of them were to be used from time to time for religious 14
education and practice. 15
In October 2001 the day school submitted to the zoning board 16
an application for modification of its special permit to enable 17
it to proceed with this $12 million expansion project. On 18
February 7, 2002 the ZBA voted unanimously to issue a "negative 19
declaration," which constituted a finding that the project would 20
have no significant adverse environmental impact and thus that 21
consideration of the project could proceed. After the issuance 22
of the negative declaration, a small but vocal group in the 23
Mamaroneck community opposed the project. As a result of this 24
public opposition, on August 1, 2002 the ZBA voted 3-2 to rescind 25
the negative declaration. The effect of the rescission was to 26

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7
require WDS to prepare and submit a full Environmental Impact 1
Statement. 2
D. Prior Legal Proceedings 3
Instead, the school commenced the instant litigation on 4
August 7, 2002 contending the rescission of the negative 5
declaration violated RLUIPA and was void under state law. The 6
suit named as defendants the Village of Mamaroneck, its ZBA, and 7
the members of the zoning board in their official capacities 8
(collectively, the Village or defendant). 9
On December 4, 2002 the district court granted WDS's motion 10
for partial summary judgment and held that the negative 11
declaration had not been properly rescinded, and therefore 12
remained in full force and effect. See Westchester Day Sch. v. 13
Vill. of Mamaroneck, 236 F. Supp. 2d 349 (S.D.N.Y. 2002). The 14
Village did not appeal this ruling. Instead, the ZBA proceeded 15
to conduct additional public hearings to consider the merits of 16
the application. The ZBA had the opportunity to approve the 17
application subject to conditions intended to mitigate adverse 18
effects on public health, safety, and welfare that might arise 19
from the project. Rather, on May 13, 2003 the ZBA voted 3-2 to 20
deny WDS's application in its entirety. 21
The stated reasons for the rejection included the effect the 22
project would have on traffic and concerns with respect to 23
parking and the intensity of use. Many of these grounds were 24
conceived after the ZBA closed its hearing process, giving the 25
school no opportunity to respond. The district court found the 26

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8
stated reasons for denying the application were not supported by 1
evidence in the public record before the ZBA, and were based on 2
several factual errors. It surmised that the application was in 3
fact denied because the ZBA gave undue deference to the public 4
opposition of the small but influential group of neighbors who 5
were against the school's expansion plans. It also noted that 6
the denial of the application would result in long delay of WDS's 7
efforts to remedy the gross inadequacies of its facilities, and 8
substantially increase construction costs. 9
On May 29, 2003 the school filed an amended complaint 10
challenging the denial of its application. It asserted claims 11
under RLUIPA, 42 U.S.C. § 1983, and the All Writs Act. Neither 12
party demanded a jury trial. WDS moved for partial summary 13
judgment, and on September 5, 2003 the district court granted 14
that motion, holding that the Village had violated RLUIPA. See 15
Westchester Day Sch. v. Vill. of Mamaroneck, 280 F. Supp. 2d 230 16
(S.D.N.Y. 2003). When the Village appealed, we vacated the 17
district court's order and remanded the case for further 18
proceedings. See Westchester Day Sch. v. Vill. of Mamaroneck, 19
386 F.3d 183 (2d Cir. 2004). After remand, the Village, for the 20
first time, demanded a jury trial, which the district court 21
denied. See Westchester Day Sch. v. Vill. of Mamaroneck, 363 F. 22
Supp. 2d 667 (S.D.N.Y. 2005). The Village moved for summary 23
judgment, which the trial court denied as to WDS's RLUIPA and All 24
Writs Act claims, but granted as to the school's claim under 42 25

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1 The United States, as intervenor and amicus curiae, and the
Becket Fund for Religious Liberty, the Association of Christian
Schools International, and the Council for Christian Colleges and
Universities, as amici curiae, filed briefs in support of
plaintiff.
9
U.S.C. § 1983. See Westchester Day Sch. v. Vill. of Mamaroneck, 1
379 F. Supp. 2d 550 (S.D.N.Y. 2005). 2
A seven-day bench trial began on November 14, 2005 and 3
resulted in the March 2006 judgment. The district court ordered 4
the Village to issue WDS's special permit immediately, but 5
reserved decision on damages and attorneys' fees pending 6
appellate review. See Westchester Day Sch. v. Vill. of 7
Mamaroneck, 417 F. Supp. 2d 477 (S.D.N.Y. 2006). From this 8
ruling the Village appeals.1
9
DISCUSSION 10
I Standard of Review 11
We review the district court's findings of fact for clear 12
error and its conclusions of law de novo. See Guiles ex rel. 13
Guiles v. Marineau, 461 F.3d 320, 323-24 (2d Cir. 2006). 14
II Application of RLUIPA 15
RLUIPA prohibits the government from imposing or 16
implementing a land use regulation in a manner that 17
imposes a substantial burden on the religious 18 exercise of a person, including a religious 19
assembly or institution, unless the 20 government demonstrates that imposition of 21 the burden on that person, assembly, or 22 institution (A) is in furtherance of a 23 compelling governmental interest; and (B) is 24 the least restrictive means of furthering 25 that compelling governmental interest. 26
27

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10
42 U.S.C. § 2000cc(a)(1). This provision applies only when the 1
substantial burden imposed (1) is in a program that receives 2
Federal financial assistance; (2) affects commerce with foreign 3
nations, among the several states, or with Indian tribes; or (3) 4
"is imposed in the implementation of a land use regulation or 5
system of land use regulations, under which a government makes, 6
or has in place formal or informal procedures or practices that 7
permit the government to make, individualized assessments of the 8
proposed uses for the property involved." 42 U.S.C. 9
§ 2000cc(a)(2). 10
A. Religious Exercise 11
Religious exercise under RLUIPA is defined as "any exercise 12
of religion, whether or not compelled by, or central to, a system 13
of religious belief." § 2000cc-5(7)(A). Further, using, 14
building, or converting real property for religious exercise 15
purposes is considered to be religious exercise under the 16
statute. § 2000cc-5(7)(B). To remove any remaining doubt 17
regarding how broadly Congress aimed to define religious 18
exercise, RLUIPA goes on to state that the Act's aim of 19
protecting religious exercise is to be construed broadly and "to 20
the maximum extent permitted by the terms of this chapter and the 21
Constitution." § 2000cc-3(g). 22
Commenting at an earlier stage in this litigation on how to 23
apply this standard, we expressed doubt as to whether RLUIPA 24
immunized all conceivable improvements proposed by religious 25
schools. That is to say, to get immunity from land use 26

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11
regulation, religious schools need to demonstrate more than that 1
the proposed improvement would enhance the overall experience of 2
its students. Westchester Day Sch., 386 F.3d at 189. For 3
example, if a religious school wishes to build a gymnasium to be 4
used exclusively for sporting activities, that kind of expansion 5
would not constitute religious exercise. Or, had the ZBA denied 6
the Westchester Religious Institute's 1986 request for a special 7
permit to construct a headmaster's residence on a portion of the 8
property, such a denial would not have implicated religious 9
exercise. Nor would the school's religious exercise have been 10
burdened by the denial of a permit to build more office space. 11
Accordingly, we suggested the district court consider whether the 12
proposed facilities were for a religious purpose rather than 13
simply whether the school was religiously-affiliated. Id. 14
On remand, the district court conducted the proper inquiry. 15
It made careful factual findings that each room the school 16
planned to build would be used at least in part for religious 17
education and practice, finding that Gordon Hall and the other 18
facilities renovated as part of the project, in whole and in all 19
of their constituent parts, would be used for "religious 20
education and practice." In light of these findings, amply 21
supported in the record, the expansion project is a "building 22
[and] conversion of real property for the purpose of religious 23
exercise" and thus is religious exercise under § 2000cc-5(7)(B). 24
Hence, we need not now demarcate the exact line at which a 25
school expansion project comes to implicate RLUIPA. That line 26

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12
exists somewhere between this case, where every classroom being 1
constructed will be used at some time for religious education, 2
and a case like the building of a headmaster's residence, where 3
religious education will not occur in the proposed expansion. 4
B. Substantial Burden 5
Since substantial burden is a term of art in the Supreme 6
Court's free exercise jurisprudence, we assume that Congress, by 7
using it, planned to incorporate the cluster of ideas associated 8
with the Court's use of it. See, e.g., Midrash Sephardi, Inc. v. 9
Town of Surfside, 366 F.3d 1214, 1226 (11th Cir. 2004), cert. 10
denied, 543 U.S. 1146 (2005) ("The Supreme Court's definition of 11
'substantial burden' within its free exercise cases is 12
instructive in determining what Congress understood 'substantial 13
burden' to mean in RLUIPA."). But see San Jose Christian Coll. 14
v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) 15
(applying dictionary meanings to define substantial burden as 16
"something that is oppressive" and "considerable in quantity"). 17
Further, RLUIPA's legislative history indicates that Congress 18
intended the term substantial burden to be interpreted "by 19
reference to Supreme Court jurisprudence." 146 Cong. Rec. S7774, 20
S7776 (2000). 21
Supreme Court precedents teach that a substantial burden on 22
religious exercise exists when an individual is required to 23
"choose between following the precepts of her religion and 24
forfeiting benefits, on the one hand, and abandoning one of the 25
precepts of her religion . . . on the other hand." Sherbert v. 26

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13
Verner, 374 U.S. 398, 404 (1963). A number of courts use this 1
standard as the starting point for determining what is a 2
substantial burden under RLUIPA. See, e.g., Lovelace v. Lee, 472 3
F.3d 174, 187 (4th Cir. 2006) (For RLUIPA purposes, a substantial 4
burden is something that "puts substantial pressure on an 5
adherent to modify his behavior."). In the context in which this 6
standard is typically applied -- for example, a state's denial of 7
unemployment compensation to a Jehovah's Witness who quit his job 8
because his religious beliefs prevented him from participating in 9
the production of war materials, see Thomas v. Review Bd. of Ind. 10
Employment Sec. Div., 450 U.S. 707, 709 (1981) -- it is not a 11
difficult standard to apply. By denying benefits to Jehovah's 12
Witnesses who follow their beliefs, the state puts undue pressure 13
on the adherents to alter their behavior and to violate their 14
beliefs in order to obtain government benefits, thereby imposing 15
a substantial burden on religious exercise. 16
But in the context of land use, a religious institution is 17
not ordinarily faced with the same dilemma of choosing between 18
religious precepts and government benefits. When a municipality 19
denies a religious institution the right to expand its 20
facilities, it is more difficult to speak of substantial pressure 21
to change religious behavior, because in light of the denial the 22
renovation simply cannot proceed. Accordingly, when there has 23
been a denial of a religious institution's building application, 24
courts appropriately speak of government action that directly 25
coerces the religious institution to change its behavior, rather 26

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14
than government action that forces the religious entity to choose 1
between religious precepts and government benefits. See, e.g., 2
Midrash Sephardi, 366 F.3d at 1227 ("[A] substantial burden is 3
akin to significant pressure which directly coerces the religious 4
adherent to conform his or her behavior accordingly."). Here, 5
WDS contends that the denial of its application in effect coerced 6
the day school to continue teaching in inadequate facilities, 7
thereby impeding its religious exercise. 8
Yet, when the denial of a religious institution's 9
application to build is not absolute, such would not necessarily 10
place substantial pressure on the institution to alter its 11
behavior, since it could just as easily file a second application 12
that remedies the problems in the first. As a consequence, as we 13
said when this case was earlier before us, "rejection of a 14
submitted plan, while leaving open the possibility of approval of 15
a resubmission with modifications designed to address the cited 16
problems, is less likely to constitute a 'substantial burden' 17
than definitive rejection of the same plan, ruling out the 18
possibility of approval of a modified proposal." Westchester Day 19
Sch., 386 F.3d at 188. Of course, a conditional denial may 20
represent a substantial burden if the condition itself is a 21
burden on free exercise, the required modifications are 22
economically unfeasible, or where a zoning board's stated 23
willingness to consider a modified plan is disingenuous. Id. at 24
188 n.3. However, in most cases, whether the denial of the 25
application was absolute is important; if there is a reasonable 26

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15
opportunity for the institution to submit a modified application, 1
the denial does not place substantial pressure on it to change 2
its behavior and thus does not constitute a substantial burden on 3
the free exercise of religion. 4
We recognize further that where the denial of an 5
institution's application to build will have minimal impact on 6
the institution's religious exercise, it does not constitute a 7
substantial burden, even when the denial is definitive. There 8
must exist a close nexus between the coerced or impeded conduct 9
and the institution's religious exercise for such conduct to be a 10
substantial burden on that religious exercise. Imagine, for 11
example, a situation where a school could easily rearrange 12
existing classrooms to meet its religious needs in the face of a 13
rejected application to renovate. In such case, the denial would 14
not substantially threaten the institution's religious exercise, 15
and there would be no substantial burden, even though the school 16
was refused the opportunity to expand its facilities. 17
Note, however, that a burden need not be found insuperable 18
to be held substantial. See Saints Constantine and Helen Greek 19
Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 901 20
(7th Cir. 2005). When the school has no ready alternatives, or 21
where the alternatives require substantial "delay, uncertainty, 22
and expense," a complete denial of the school's application might 23
be indicative of a substantial burden. See id. 24
We are, of course, mindful that the Supreme Court's free 25
exercise jurisprudence signals caution in using effect alone to 26

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16
determine substantial burden. See generally Lyng v. Nw. Indian 1
Cemetery Protective Ass'n, 485 U.S. 439, 451 (1988) (observing 2
that the "line between unconstitutional prohibitions on the free 3
exercise of religion and the legitimate conduct by government of 4
its own affairs . . . cannot depend on measuring the effects of a 5
governmental action on a religious objector's spiritual 6
development" (emphasis added)). This is because an effect 7
focused analysis may run up against the reality that "[t]he 8
freedom asserted by [some may] bring them into collision with 9
[the] rights asserted by" others and that "[i]t is such conflicts 10
which most frequently require intervention of the State to 11
determine where the rights of one end and those of another 12
begin." Braunfeld v. Brown, 366 U.S. 599, 604 (1961). 13
Accordingly, the Supreme Court has held that generally applicable 14
burdens, neutrally imposed, are not "substantial." See Jimmy 15
Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 389-91 16
(1990). 17
This reasoning helps to explain why courts confronting free 18
exercise challenges to zoning restrictions rarely find the 19
substantial burden test satisfied even when the resulting effect 20
is to completely prohibit a religious congregation from building 21
a church on its own land. See Christian Gospel Church, Inc. v. 22
City and County of S.F., 896 F.2d 1221, 1224 (9th Cir. 1990); 23
Messiah Baptist Church v. County of Jefferson, 859 F.2d 820, 824- 24
25 (10th Cir. 1988); Grosz v. City of Miami Beach, 721 F.2d 729, 25
739-40 (11th Cir. 1983); Lakewood, Ohio Congregation of Jehovah's 26

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17
Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 304 (6th Cir. 1
1983); cf. Islamic Ctr. of Miss., Inc. v. City of Starkville, 840 2
F.2d 293, 302-03 (5th Cir. 1988) (finding substantial burden 3
where city intentionally discriminated against Muslims and 4
ordinance "leaves no practical alternatives for establishing a 5
mosque in the city limits"). 6
A number of our sister circuits have applied this same 7
reasoning in construing RLUIPA's substantial burden requirement. 8
For example, the Seventh Circuit has held that land use 9
conditions do not constitute a substantial burden under RLUIPA 10
where they are "neutral and traceable to municipal land planning 11
goals" and where there is no evidence that government actions 12
were taken "because [plaintiff] is a religious institution." 13
Vision Church v. Vill. of Long Grove, 468 F.3d 975, 998-99 (7th 14
Cir. 2006). Similarly, the Ninth Circuit has held that no 15
substantial burden was imposed, even where an ordinance "rendered 16
[plaintiff] unable to provide education and/or worship" on its 17
property, because the plaintiff was not "precluded from using 18
other sites within the city" and because "there [is no] evidence 19
that the City would not impose the same requirements on any other 20
entity." San Jose Christian Coll., 360 F.3d at 1035. The 21
Eleventh Circuit has also ruled that "reasonable 'run of the 22
mill' zoning considerations do not constitute substantial 23
burdens." Midrash Sephardi, 366 F.3d at 1227-28 & n.11. 24
The same reasoning that precludes a religious organization 25
from demonstrating substantial burden in the neutral application 26

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18
of legitimate land use restrictions may, in fact, support a 1
substantial burden claim where land use restrictions are imposed 2
on the religious institution arbitrarily, capriciously, or 3
unlawfully. The arbitrary application of laws to religious 4
organizations may reflect bias or discrimination against 5
religion. Thus, in Saints Constantine and Helen, the Seventh 6
Circuit concluded that a substantial burden was demonstrated in 7
circumstances where the "decision maker cannot justify" the 8
challenged ruling and where "repeated legal errors by the City's 9
officials casts doubt on their good faith." 396 F.3d at 899-01. 10
Similarly, in Guru Nanak Sikh Soc'y v. County of Sutter, 456 F.3d 11
978, 989-91 (9th Cir. 2006), the Ninth Circuit held that a 12
substantial burden was shown where government officials 13
"inconsistently applied" specific policies and disregarded 14
relevant findings "without explanation." Where the arbitrary, 15
capricious, or unlawful nature of a defendant's challenged action 16
suggests that a religious institution received less than even- 17
handed treatment, the application of RLUIPA's substantial burden 18
provision usefully "backstops the explicit prohibition of 19
religious discrimination in the later section of the Act." 20
Saints Constantine and Helen, 396 F.3d at 900. 21
Accordingly, we deem it relevant to the evaluation of WDS's 22
particular substantial burden claim that the district court 23
expressly found that the zoning board's denial of the school's 24
application was "arbitrary and capricious under New York law 25
because the purported justifications set forth in the Resolution 26

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19
do not bear the necessary substantial relation to public health, 1
safety or welfare," and the zoning board's findings are not 2
supported by substantial evidence. Westchester Day Sch., 417 F. 3
Supp. 2d at 564. Although the Village disputes this finding, we 4
conclude that it is amply supported by both the law and the 5
record evidence. 6
As the New York Court of Appeals has made plain, a zoning 7
board decision based on grounds "unrelated to the public's 8
health, safety or welfare" is "beyond the scope of the 9
municipality's police power, and, thus, impermissible." Cornell 10
Univ. v. Bagnardi, 68 NY2d 583, 597 (1986). Even when a board 11
considers permissible factors, the law demands that its analysis 12
be supported by substantial evidence. Twin County Recycling 13
Corp. v. Yevoli, 90 NY2d 1000, 1002 (1997) (mem.). Moreover, 14
under New York law, a municipality may not demand that a 15
religious institution show that "no ill effects will result from 16
the proposed use in order to receive a special permit," because 17
such a requirement "fails to recognize that educational and 18
religious uses ordinarily have inherent beneficial effects that 19
must be weighed against their potential for harming the 20
community." Bagnardi, 68 NY2d at 597. 21
The district court reasonably concluded that the ZBA failed 22
to comply with these legal mandates in several respects. For 23
example, the zoning board denied WDS's application based, in 24
part, on an accusation that the school made "a willful attempt" 25
to mislead the zoning board. In fact, the accusation was 26

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20
unsupported by the evidence and based on the zoning board's own 1
error with respect to certain relevant facts. Westchester Day 2
Sch., 417 F. Supp. 2d at 531, 571. The ZBA's allegations of 3
deficiencies in the school's traffic study were also unsupported 4
by the evidence before it. See id. at 564-66. The concern about 5
lack of adequate parking was based on the zoning board's own 6
miscalculation. See id. at 567. Indeed, the ZBA impermissibly 7
based its decision on speculation about future expansion, without 8
a basis in fact. See id. at 568. In each of these instances, 9
the ZBA's assumptions were not only wrong; they were unsupported 10
by its own experts. See id. at 532, 566, 567, 569. Indeed, the 11
resolution drafted by the ZBA's consultants, which would have 12
approved WDS's application subject to conditions addressing 13
various ZBA concerns, was never circulated to the whole zoning 14
board before it issued the challenged denial. See id. at 569. 15
In sum, the record convincingly demonstrates that the zoning 16
decision in this case was characterized not simply by the 17
occasional errors that can attend the task of government but by 18
an arbitrary blindness to the facts. As the district court 19
correctly concluded, such a zoning ruling fails to comply with 20
New York law. 21
While the arbitrary and unlawful nature of the ZBA denial of 22
WDS's application supports WDS's claim that it has sustained a 23
substantial burden, two other factors drawn from our earlier 24
discussion must be considered in reaching such a burden 25
determination: (1) whether there are quick, reliable, and 26

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21
financially feasible alternatives WDS may utilize to meet its 1
religious needs absent its obtaining the construction permit; and 2
(2) whether the denial was conditional. These two considerations 3
matter for the same reason: when an institution has a ready 4
alternative -- be it an entirely different plan to meet the same 5
needs or the opportunity to try again in line with a zoning 6
board's recommendations -- its religious exercise has not been 7
substantially burdened. The plaintiff has the burden of 8
persuasion with respect to both factors. See § 2000cc-2 (putting 9
burden on plaintiff to prove that government's action 10
substantially burdened plaintiff's exercise of religion). 11
Here, the school could not have met its needs simply by 12
reallocating space within its existing buildings. The 13
architectural firm it hired determined that certain essential 14
facilities would have to be incorporated into a new building, 15
because not enough space remained in the existing buildings to 16
accommodate the school's expanding needs. Further, experts hired 17
by WDS determined that the planned location for Gordon Hall was 18
the only site that would accommodate the new building. The 19
answer to the first factor is there were not only no quick, 20
reliable, or economically feasible alternatives, there were no 21
alternatives at all. 22
In examining the second factor -- whether the Village's 23
denial of the school's application was conditional or absolute -- 24
we look at several matters: (a) whether the ZBA classified the 25
denial as complete, (b) whether any required modification would 26

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22
itself constitute a burden on religious exercise; (c) whether 1
cure of the problems noted by the ZBA would impose so great an 2
economic burden as to make amendment unworkable; and (d) whether 3
the ZBA's stated willingness to consider a modified proposal was 4
disingenuous. See Westchester Day Sch., 386 F.3d at 188 n.3. 5
For any of the following reasons, we believe the denial of 6
WDS's application was absolute. First, we observe that the ZBA 7
could have approved the application subject to conditions 8
intended to mitigate adverse effects on public health, safety, 9
and welfare. Yet the ZBA chose instead to deny the application 10
in its entirety. It is evident that in the eyes of the ZBA's 11
members, the denial was final since all of them discarded their 12
notes after voting on the application. Second, were WDS to 13
prepare a modified proposal, it would have to begin the 14
application process anew. This would have imposed so great an 15
economic burden as to make the option unworkable. Third, the 16
district court determined that ZBA members were not credible when 17
they testified they would give reasonable consideration to 18
another application by WDS. When the board's expressed 19
willingness to consider a modified proposal is insincere, we do 20
not require an institution to file a modified proposal before 21
determining that its religious exercise has been substantially 22
burdened. 23
Consequently, we are persuaded that WDS has satisfied its 24
burden in proving that there was no viable alternative to achieve 25
its objectives, and we conclude that WDS's religious exercise was 26

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23
substantially burdened by the ZBA's arbitrary and unlawful denial 1
of its application. 2
C. Least Restrictive Means to Further a 3 Compelling State Interest 4
5 Under RLUIPA, once a religious institution has demonstrated 6
that its religious exercise has been substantially burdened, the 7
burden of proof shifts to the municipality to prove it acted in 8
furtherance of a compelling governmental interest and that its 9
action is the least restrictive means of furthering that 10
interest. § 2000cc-2(b). Compelling state interests are 11
"interests of the highest order." Church of the Lukumi Babalu 12
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). The 13
Village claims that it has a compelling interest in enforcing 14
zoning regulations and ensuring residents' safety through traffic 15
regulations. However, it must show a compelling interest in 16
imposing the burden on religious exercise in the particular case 17
at hand, not a compelling interest in general. See, e.g., 18
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 19
U.S. 418, 432 (2006) ("Under the more focused inquiry required by 20
RFRA and the compelling interest test, the Government's mere 21
invocation of the general characteristics of Schedule I 22
substances . . . cannot carry the day. . . . [T]here is no 23
indication that Congress . . . considered the harms posed by the 24
particular use at issue here . . . ." (emphases added)). 25
The district court's findings reveal the ZBA's stated 26
reasons for denying the application were not substantiated by 27

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24
evidence in the record before it. The court stated the 1
application was denied not because of a compelling governmental 2
interest that would adversely impact public health, safety, or 3
welfare, but was denied because of undue deference to the 4
opposition of a small group of neighbors. 5
Further, even were we to determine that there was a 6
compelling state interest involved, the Village did not use the 7
least restrictive means available to achieve that interest. The 8
ZBA had the opportunity to approve the application subject to 9
conditions, but refused to consider doing so. 10
III Constitutionality of RLUIPA 11
Given our conclusion that the ZBA violated RLUIPA by denying 12
WDS's application, the question remains whether RLUIPA was 13
constitutionally applied. The Village challenges RLUIPA on the 14
grounds that it exceeds Congress' Fourteenth Amendment (§ 5) and 15
Commerce Clause powers and that the Act is unconstitutional under 16
the Tenth Amendment and the Establishment Clause. 17
RLUIPA states that it only applies when (1) "the substantial 18
burden is imposed in a program or activity that receives Federal 19
financial assistance . . . ," (2) "the substantial burden 20
affects, or removal of that substantial burden would affect, 21
commerce with foreign nations, among the several States, or with 22
Indian tribes . . . ," or (3) "the substantial burden is imposed 23
in the implementation of a land use regulation or system of land 24
use regulations, under which a government makes, or has in place 25
formal or informal procedures or practices that permit the 26

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25
government to make, individualized assessments of the proposed 1
uses for the property involved." § 2000cc(a)(2). 2
By limiting RLUIPA's scope to cases that present one of 3
these jurisdictional nexuses, Congress alternatively grounded 4
RLUIPA, depending on the facts of a particular case, in the 5
Spending Clause, the Commerce Clause, and § 5 of the Fourteenth 6
Amendment. There is no claim here that the ZBA receives federal 7
financial assistance, but WDS does assert both that the 8
substantial burden on its religious exercise affects interstate 9
commerce and that it is imposed through formal procedures that 10
permit the government to make individualized assessments of the 11
proposed uses for the property involved. Thus, we must examine 12
whether RLUIPA is constitutionally applied under Congress' 13
Commerce Clause power or whether it is constitutionally applied 14
under Congress' power to create causes of action vindicating 15
Fourteenth Amendment rights. 16
A. Congress' Power Under the Commerce Clause 17
The Constitution grants Congress the power "[t]o regulate 18
Commerce . . . among the several States." U.S. Const. art. I, 19
§ 8, cl. 3. As noted above, Congress made explicit reference to 20
this grant by limiting the application of RLUIPA to cases in 21
which, inter alia, "the substantial burden affects, or removal of 22
that substantial burden would affect, commerce . . . among the 23
several States." § 2000cc(a)(2)(B). 24
As the Supreme Court has made plain, the satisfaction of 25
such a jurisdictional element -- common in both civil and 26

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26
criminal cases -- is sufficient to validate the exercise of 1
congressional power because an interstate commerce nexus must be 2
demonstrated in each case for the statute in question to operate. 3
See United States v. Morrison, 529 U.S. 598, 611-12 (2000) ("Such 4
a jurisdictional element may establish that the enactment is in 5
pursuance of Congress' regulation of interstate commerce."); 6
United States v. Lopez, 514 U.S. 549, 561 (1995) (noting that 7
statute in question "contains no jurisdictional element which 8
would ensure, through case-by-case inquiry, that the [activity] 9
in question affects interstate commerce"). Following suit, this 10
Court has consistently upheld statutes under the Commerce Clause 11
on the basis of jurisdictional elements. See, e.g., United 12
States v. Griffith, 284 F.3d 338, 346-48 (2d Cir. 2002); United 13
States v. Santiago, 238 F.3d 213, 216 (2d Cir. 2001) (per 14
curiam). Consistent with this precedent, we now hold that, where 15
the relevant jurisdictional element is satisfied, RLUIPA 16
constitutes a valid exercise of congressional power under the 17
Commerce Clause. See, e.g., United States v. Maui County, 298 F. 18
Supp. 2d 1010, 1015 (D. Haw. 2003) (reaching same conclusion); 19
Freedom Baptist Church v. Twp. of Middletown, 204 F. Supp. 2d 20
857, 866-68 (E.D. Pa. 2002) (same). 21
In this case, the district court found the jurisdictional 22
element satisfied by evidence that the construction of Gordon 23
Hall, a 44,000 square-foot building with an estimated cost of 24
$9 million, will affect interstate commerce. We identify no 25
error in this conclusion. As we have recognized, the evidence 26

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27
need only demonstrate a minimal effect on commerce to satisfy the 1
jurisdictional element. See Griffith, 284 F.3d at 347. Further, 2
we have expressly noted that commercial building construction is 3
activity affecting interstate commerce. See Reich v. 4
Mashantucket Sand & Gravel, 95 F.3d 174, 181 (2d Cir. 1996) 5
("[C]onstruction efforts . . . have a direct effect on interstate 6
commerce."). 7
In light of our determination that RLUIPA's application in 8
the present case is constitutional under the Commerce Clause, 9
there is no need to consider or decide whether its application 10
could be grounded alternatively in § 5 of the Fourteenth 11
Amendment. 12
B. Tenth Amendment 13
The Tenth Amendment provides that "the powers not delegated 14
to the United States by the Constitution, nor prohibited by it to 15
the States, are reserved to the States respectively, or the 16
people." As the Supreme Court has explained, "[i]f a power is 17
delegated to Congress in the Constitution, the Tenth Amendment 18
expressly disclaims any reservation of that power to the States." 19
New York v. United States, 505 U.S. 144, 156 (1992). The power 20
to regulate interstate commerce was delegated to Congress in the 21
Constitution. Nonetheless, in New York, the Court said that even 22
in situations where Congress has the power to pass laws requiring 23
or prohibiting certain acts, it has no power "directly to compel 24
the States to require or prohibit those acts." Id. at 166. We 25
do not believe RLUIPA directly compels states to require or 26

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28
prohibit any particular acts. Instead, RLUIPA leaves it to each 1
state to enact and enforce land use regulations as it deems 2
appropriate so long as the state does not substantially burden 3
religious exercise in the absence of a compelling interest 4
achieved by the least restrictive means. 5
C. Establishment Clause 6
In determining whether a particular law violates the 7
Establishment Clause, which provides in the First Amendment that 8
"Congress shall make no law respecting an establishment of 9
religion," U.S. Const. amend. I, we examine the government 10
conduct at issue under the three-prong analysis articulated by 11
the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). 12
Under Lemon, government action that interacts with religion must: 13
(1) have a secular purpose, (2) have a principal effect that 14
neither advances nor inhibits religion, and (3) not bring about 15
an excessive government entanglement with religion. Id. at 612- 16
13. RLUIPA's land use provisions plainly have a secular purpose, 17
that is, the same secular purpose that RLUIPA's institutionalized 18
persons provisions have: to lift government-created burdens on 19
private religious exercise. See Cutter v. Wilkinson, 544 U.S. 20
709, 720 (2005). As the Supreme Court explained in Cutter, such 21
purpose is "compatible with the Establishment Clause." Id. 22
Similarly, the principal or primary effect of RLUIPA's land 23
use provisions neither advances nor inhibits religion. As the 24
Supreme Court has explained, a law produces forbidden effects 25
under Lemon if "the government itself has advanced religion 26

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29
through its own activities and influence." Corp. of Presiding 1
Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 2
483 U.S. 327, 337 (1987). Under RLUIPA, the government itself 3
does not advance religion; all RLUIPA does is permit religious 4
practitioners the free exercise of their religious beliefs 5
without being burdened unnecessarily by the government. 6
Finally, RLUIPA's land use provisions do not foster an 7
excessive government entanglement with religion. Although the 8
Village contends that RLUIPA fails every part of the Lemon test, 9
it makes no argument that the land use provisions foster 10
intolerable levels of interaction between church and state or the 11
continuing involvement of one in the affairs of the other. 12
Agostini v. Felton, 521 U.S. 203, 232-33 (1997); Walz v. Tax 13
Comm'n of N.Y., 397 U.S. 664, 674-75 (1970). Further, 14
entanglement becomes excessive only when it advances or inhibits 15
religion. Agostini, 521 U.S. at 233 (treating entanglement prong 16
as aspect of effects prong under Lemon test); Skoros v. City of 17
N.Y., 437 F.3d 1, 36 (2d Cir. 2006). RLUIPA cannot be said to 18
advance religion simply by requiring that states not discriminate 19
against or among religious institutions. See Midrash Sephardi, 20
366 F.3d at 1241. 21
Accordingly, we find that RLUIPA's land use provisions do 22
not violate the Establishment Clause. 23
IV Jury Waiver 24
We turn finally to the question of whether defendant waived 25
its right to trial by jury. Under Federal Rule of Civil 26

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30
Procedure 38(b), "[a]ny party may demand a trial by jury of any 1
issue triable of right by a jury." Failure to serve a demand 2
constitutes a waiver of that right. Fed. R. Civ. P. 38(d). 3
Here, the Village initially failed to demand a jury trial. A 4
litigant who has waived a jury may nonetheless demand one with 5
respect to new issues raised by later pleadings, unless the new 6
issues are simply "artful rephrasings" of existing issues. See 7
Rosen v. Dick, 639 F.2d 82, 94 (2d Cir. 1980). When the same 8
parties are the litigants before and after an amended pleading, 9
we are unlikely to find a new issue has been raised. Id. at 96. 10
An amended complaint asserting new theories of recovery, based on 11
the same facts as the original complaint, will not renew a 12
defendant's right to a jury trial when that right was waived with 13
respect to the original complaint. 8 James Wm. Moore, Moore's 14
Federal Practice § 38.50[8][d] (3d ed. 2006). 15
The Village declares its amended answer -- filed a year and 16
a half after commencement of the suit -- raised new issues, and 17
that it therefore had a right to demand a new trial on those 18
issues. But its amended answer was identical to its initial 19
answer except that it added a number of affirmative defenses not 20
asserted earlier. The new affirmative defenses alleged that 21
defendant's denial of WDS's application was not a complete 22
denial, that it did not substantially burden WDS's free exercise 23
of religion, that the denial was based on compelling state 24
interests, and that RLUIPA if applied to WDS's activities is 25
unconstitutional. By denying plaintiff's contrary allegations, 26

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31
the defendant had already raised the first three issues in its 1
initial answer. 2
We are left with the Village's affirmative defense that 3
RLUIPA if applied to WDS's activities would be unconstitutional. 4
But the defendant was on notice that the court would be deciding 5
all issues relating to the general dispute. The Village should 6
reasonably have known at the time it initially waived its jury 7
trial right that the constitutionality of RLUIPA could constitute 8
a part of the dispute. Like an amended complaint that simply 9
asserts new theories of recovery, an amended answer that asserts 10
new defense theories based on the same facts does not reestablish 11
the defendant's right to demand a jury trial. Hence, the 12
district court correctly ruled the Village had not revived its 13
right to such under Rule 38(b). 14
The Village also insists that the district court abused its 15
discretion by not ordering a jury trial under Rule 39(b). Rule 16
39(b) provides that "notwithstanding the failure of a party to 17
demand a jury . . . , the court in its discretion upon motion may 18
order a trial by a jury of any or all issues." We have ruled 19
that "inadvertence in failing to make a timely jury demand does 20
not warrant a favorable exercise of discretion under Rule 39(b)." 21
Noonan v. Cunard S.S. Co., 375 F.2d 69, 70 (2d Cir. 1967) 22
(Friendly, J.); see also Higgins v. Boeing Co., 526 F.2d 1004, 23
1006 n.2 (2d Cir. 1975) (per curiam) ("[D]espite the 24
discretionary language of Rule 39(b) some cause beyond mere 25
inadvertence must be shown to permit granting an untimely 26

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32
demand."). Here, the Village admits that it neglected to demand 1
a jury in June 2003. Accordingly, it was not an abuse of 2
discretion for the district court to deny the Village's 2004 3
request for a favorable exercise of its discretion under Rule 4
39(b). 5
V All Writs Act and Supplemental State Law Claims 6
After determining the Village violated RLUIPA, the district 7
court ordered the ZBA immediately and unconditionally to issue 8
WDS's special permit modification. Such relief is proper under 9
RLUIPA. See § 2000cc-2(a) (parties asserting RLUIPA claims may 10
obtain "appropriate relief" against a government). As a 11
consequence, there is no need for us to examine the alternative 12
bases the district court provided to justify this relief. 13
CONCLUSION 14
Accordingly, for the foregoing reasons, the judgment of the 15
district court is affirmed. 16

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