Fortress Bible Church v. Feiner

1
10-3634-cv
Fortress Bible Church v. Feiner
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term 2011 4
(Argued: September 23, 2011 Decided: September 24, 2012) 5
Docket No. 10-3634-cv 6
-----------------------------------------------------x 7
8
FORTRESS BIBLE CHURCH, REVEREND DENNIS G. KARAMAN, 9
10
Plaintiffs-Appellees, 11
12
-- v. -- 13
14
PAUL J. FEINER, individually & in his official capacity as the 15
Supervisor of the Town of Greenburgh, SONJA BROWN, in her 16
official capacity as Councilwoman for the Town of Greenburgh, 17
KEVIN MORGAN, in his official capacity as Councilman for the Town 18
of Greenburgh, DIANA JUETTNER, in her official capacity as 19
Councilwoman for the Town of Greenburgh, FRANCIS SHEEHAN, in his 20
official capacity as Councilman for the Town of Greenburgh, TOWN 21
BOARD OF GREENBURGH, THE TOWN BOARD OF THE TOWN OF GREENBURGH, 22
TOWN OF GREENBURGH, THE TOWN OF GREENBURGH, 23
24
Defendants-Appellants. 25
26
27
-----------------------------------------------------x 28
29
B e f o r e : WALKER, CHIN and LOHIER, Circuit Judges. 30
Defendants-appellants Paul J. Feiner, Sonja Brown, Kevin 31
Morgan, Diana Juettner, Francis Sheehan, Town Board of 32
Greenburgh, the Town Board of the Town of Greenburgh, and the 33
Town of Greenburgh, appeal from a judgment of the United States 34
District Court for the Southern District of New York (Stephen C. 35

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2
Robinson, Judge), holding that they had violated plaintiffs- 1
appellees’ rights under the Religious Land Use and 2
Institutionalized Persons Act as well as the First Amendment, the 3
Equal Protection Clause, and New York constitutional and 4
statutory law. We conclude that the district court correctly 5
applied the law and discern no clear error in its factual 6
findings. AFFIRMED. 7
ROBERT A. SPOLZINO (Joanna Topping, 8
Cathleen Giannetta, on the brief), 9
Wilson, Elser, Moskowitz, Edelman & 10
Dicker LLP, White Plains, New York, 11
for Defendants-Appellants. 12
13
DONNA E. FROSCO, Keane & Beane, 14
P.C., White Plains, New York, for 15
Plaintiffs-Appellees. 16
17
18
JOHN M. WALKER, JR., Circuit Judge: 19
This appeal concerns a longstanding land-use dispute between 20
plaintiff-appellee Fortress Bible Church (“the Church”) and 21
defendant-appellant Town of Greenburgh, New York (“the Town”) 22
over the Church’s plan to build a worship facility and school on 23
land that it owned within the Town. After a series of 24
contentious administrative proceedings effectively preventing the 25
Church’s project from going forward, the Church, along with its 26
pastor, plaintiff-appellee Reverend Dennis G. Karaman 27
(“Karaman”), sued the Town, its Town Board (“the Board”), and 28
several Board members (collectively “the Town defendants”) in the 29

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3
United States District Court for the Southern District of New 1
York (Stephen C. Robinson, Judge). The Church alleged violations 2
of the Religious Land Use and Institutionalized Persons Act of 3
2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., as well as of its 4
constitutional Free Exercise and Equal Protection rights, and 5
Article 78 of New York’s Civil Procedure Law. After a 26-day 6
bench trial, the district court entered judgment for the 7
plaintiffs on all counts. On appeal, the Town makes six 8
contentions: (1) RLUIPA is by its terms inapplicable to the 9
environmental quality review process employed by the Town to 10
reject the proposal, (2) there was insufficient evidence that the 11
defendants had imposed a substantial burden on plaintiffs’ 12
religious exercise under RLUIPA, (3) plaintiffs’ class-of-one 13
Equal Protection claim is not viable because they have not 14
alleged a single comparator similarly situated in all respects, 15
(4) plaintiffs’ Free Exercise rights were not violated, (5) the 16
Town did not violate Article 78, and (6) the district court 17
lacked the authority to order the Town Zoning Board, a non-party, 18
to take any action with regard to the Church. We find all of 19
these contentions to be without merit and therefore AFFIRM the 20
decision of the district court. 21

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1 A more comprehensive accounting of the facts can be found in
the district court’s thorough opinion. Fortress Bible Church v.
Feiner, 734 F. Supp. 2d 409 (S.D.N.Y. 2010).
4
BACKGROUND 1
Facts 2
In reviewing a judgment after a bench trial, we accept the 3
district court’s factual findings unless they are clearly 4
erroneous. See Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d 5
33, 38-39 (2d Cir. 2009). Because we do not identify error in 6
any of the district court’s findings that are pertinent to this 7
appeal, we set forth the relevant facts as found by the district 8
court. 1
9
I. The Church’s Proposal 10
Plaintiff Fortress Bible Church is a Pentecostal church 11
established in the 1940s. It is a tax-exempt religious 12
organization with approximately 175 members. In addition to its 13
worship activities, the Church runs Fortress Christian Academy 14
(“the School”), a private Christian school. Plaintiff Dennis G. 15
Karaman is the Church’s pastor. 16
The Church is currently located in Mount Vernon, New York. 17
Its Mount Vernon facilities, however, are not adequate to 18
accommodate its religious practice. In 1998, the Church 19
purchased a parcel of land on Pomander Drive in the Town of 20
Greenburgh, New York, with the intention of building a larger 21
facility. This parcel (“the Pomander Drive property”) was vacant 22

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5
except for a small residence on one edge. The surrounding 1
neighborhood includes residences, business offices, churches, and 2
major roads. Prior to purchasing the property, Karaman advised 3
the Town of his intent to build a church and school on the 4
grounds, and stated that if the property was not suitable for 5
this purpose, he would not purchase it. 6
The Church sought to build a single structure on the 7
Pomander Drive property that would house a worship facility and a 8
school. The proposed church would accommodate 500 people and the 9
school would accommodate 150 students. The structure would have 10
125 parking spaces and occupy 1.45 acres of the 6.53 acre plot. 11
To construct its proposed building, the Church required three 12
discretionary land use approvals from the Town: (1) site plan 13
approval from the Board, (2) a waiver of the landscaped parking 14
island requirement, and (3) a variance from the Town’s Zoning 15
Board of Appeals (“the Zoning Board”) to allow the building to be 16
located closer to one side of the property. Because the Church’s 17
proposal required discretionary government approval, it triggered 18
New York’s State Environmental Quality Review Act (“SEQRA”), N.Y. 19
Comp. Codes R. & Regs. Tit. 6, §§ 617.2(b), 617.3(a) (requiring 20
environmental review process whenever government takes certain 21
discretionary action). 22
23

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6
II. The SEQRA Review Process 1
The SEQRA review process entails several stages. First, the 2
“lead agency” (in this case, the Board) must make an initial 3
determination of environmental significance. 6 N.Y.C.R.R. § 4
617.6. If the environmental impact of the proposal is small, the 5
lead agency can issue a negative declaration, meaning there is no 6
potential for significant adverse environmental impact, or a 7
conditioned negative declaration, meaning that the potential for 8
adverse environmental impact can be mitigated by the agency. § 9
617.7. Alternately, if the lead agency determines that the 10
proposal has the potential for at least one significant adverse 11
environmental impact, the lead agency must issue a “positive 12
declaration” and require the applicant to submit an Environmental 13
Impact Statement (“EIS”) evaluating the environmental impact of 14
the project. § 617.7. Preparation of an EIS involves several 15
steps. The applicant prepares a scoping document (outlining the 16
scope of the environmental impact), a draft EIS (“DEIS”), and a 17
final EIS (“FEIS”), and must seek feedback at each stage from the 18
public and approval from the lead agency. §§ 617.8, 617.9. 19
The Church submitted its initial proposal on or about 20
November 24, 1998. On January 27, 1999, the Church and its 21
consultants appeared at a Board work session to discuss the 22
application. The Board requested that the Church examine the 23
project’s impact on local traffic and access to the property. In 24

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7
response, the Church hired consultants to perform a traffic study 1
of the area. It also sought feedback from the New York State 2
Department of Transportation (“NYSDOT”) and nearby residents. On 3
or about January 17, 2000, the Church submitted a revised 4
proposal which included a comprehensive traffic study and 5
additional information about potential environmental impacts. 6
After reviewing the proposal, Anthony Russo (“Russo”), the Town 7
Planning Commissioner, believed that the Church had adequately 8
mitigated the Town’s traffic concerns and advised the Board that 9
it could issue a Conditioned Negative Declaration. 10
On July 11, 2000, Karaman and other Church representatives 11
attended a work session with the Board. At the meeting, 12
defendant Town Supervisor Paul Feiner (“Feiner”) stated that he 13
was concerned with the Church’s tax-exempt status and asked it to 14
donate a fire truck or make some other payment in lieu of taxes. 15
Other Board members commented to the effect that they did not 16
want the property to be used as a church. The Church declined to 17
donate a fire truck or make any other payment in lieu of taxes. 18
On July 19, 2000, the Board issued a positive declaration, 19
triggering the full SEQRA review process. 20
Over the next several years, the Church provided all of the 21
information required by the SEQRA process. It produced a scoping 22
document followed by a DEIS, which the Town accepted as complete 23
on October 24, 2001. The Town held hearings on the proposal on 24

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8
December 12, 2001, and January 9, 2002. During this comment 1
period, NYSDOT submitted comments indicating its approval of the 2
Church’s traffic study. Despite the Church’s efforts, however, 3
the Town continued to resist the project. On May 3, 2001, 4
Karaman met with Feiner to discuss the review process. Karaman 5
asked what he could do to move the process along, and Feiner 6
responded that the Church could agree to make yearly financial 7
contributions to the fire department. Another Board member 8
suggested to Russo on multiple occasions that he should “stop” or 9
“kill” the project. In early 2002, the Town replaced Russo with 10
a new Planning Commissioner and retained consultants to analyze 11
the Church’s proposal. 12
On April 5, 2002, after further consultation with Town 13
officials, the Church submitted a proposed FEIS. The Town 14
refused to discuss the project with the Church and refused to 15
move forward with the review process. Despite having accepted 16
the DEIS and scoping document as complete, which would normally 17
finalize the universe of issues relevant to SEQRA review, the 18
Town began to request new information and raise new issues for 19
the Church to address. The Church provided the requested 20
information and attempted to meet the Town’s demands. During the 21
summer of 2002, the Town stopped the review process altogether 22
due to the Church’s refusal to reimburse it for certain disputed 23
fees the Town had incurred during the process. On January 17, 24

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2 The Town initially tried to adopt this findings statement on
January 6, 2004, but the district court declared that statement
void because it violated New York’s Open Meetings Law.
9
2003, the Church sent a letter to the Town summarizing its view 1
that the Town had inappropriately delayed its building 2
application despite its consistent efforts to meet the Town’s 3
requests. 4
On February 25, 2003, the Town took the unusual step of 5
taking over preparation of the FEIS. It did not notify the 6
Church that it had done so until March 17, 2003. The Town edited 7
the FEIS to include a number of additional problems with the 8
proposal, and did not consider the Church’s input addressing 9
those problems. 10
On June 11, 2003, the Church instituted this action. It 11
alleged violations of RLUIPA and its rights under the First and 12
Fourteenth Amendments, as well as New York law, and sought an 13
order compelling the Town to complete SEQRA review and approve 14
the project. 15
On April 14, 2004, the Town denied the Church’s 16
application. 2 In its findings statement the town stated its 17
primary reasons for rejecting the application as: (1) violation 18
of a recently enacted “steep slope” zoning ordinance; (2) stress 19
on the police and fire departments; (3) retaining walls that 20
constituted an attractive nuisance; and (4) traffic and parking 21
problems. 22

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10
III. The District Court Decision 1
The district court conducted a bench trial over 26 non- 2
consecutive days between October 2006 and March 2007. On August 3
11, 2010, in a lengthy opinion containing 622 factual findings, 4
the district court found that the Town had violated the Church’s 5
rights under RLUIPA, the Free Exercise Clauses of the First 6
Amendment and New York Constitution, the Equal Protection Clauses 7
of the Fourteenth Amendment and New York Constitution, and 8
Article 78 of New York’s Civil Procedure Law. Fortress Bible 9
Church v. Feiner, 734 F. Supp. 2d 409, 522-23 (S.D.N.Y. 2010). 10
It found that the Town had acted in bad faith and had used the 11
SEQRA review process illegitimately as a way to block the 12
Church’s proposal. It therefore concluded that the Town had 13
substantially burdened the Church by preventing it from moving to 14
an adequate facility, resulting in a violation of RLUIPA and the 15
Free Exercise Clause. Id. at 496-508, 511-12. The district 16
court also found an Equal Protection violation based on a class- 17
of-one theory. Id. at 513-17. While acknowledging that the 18
Church had not presented a single comparator similarly situated 19
in all respects, it found the Church’s comparators to be 20
sufficient with regard to each of the discrete issues cited by 21
the Town. Additionally, the district court found that Town 22
staff, including at least one Board member, had intentionally 23

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11
destroyed discoverable evidence despite specific instructions not 1
to do so. 2
The district court ordered broad relief: (1) it annulled 3
the positive declaration and findings statement; (2) it ordered 4
that the Church’s 2000 site plan be deemed approved for SEQRA 5
purposes and enjoined any further SEQRA review; (3) it ordered 6
the Board to grant the Church a waiver from the landscaped 7
parking island requirement; (4) it ordered the Zoning Board to 8
grant a variance permitting a side building location; (5) it 9
ordered the Town to issue a building permit for the 2000 site 10
plan; (6) it enjoined the Town from taking any action that 11
unreasonably interferes with the Church’s project; and (7) it 12
imposed $10,000 in sanctions for spoliation of evidence. Id. at 13
520-22. The district court directed the parties to submit 14
additional information with regard to compensatory damages. Id. 15
at 520-21. Judgment was entered on August 12, 2010. The Town 16
appeals. 17
18
DISCUSSION 19
On appeal, the Town challenges the district court’s holding 20
that it violated the Church’s rights under RLUIPA, the First and 21
Fourteenth Amendments, the New York Constitution, and Article 78. 22
It also contends that the district court lacked any authority 23
over the Zoning Board, a non-party to this litigation. 24

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3 The Church contends that the Town has waived this argument by
not raising it during trial. The issue was raised before the
district court in a post-trial brief, and was considered by the
district court. It is therefore proper to consider this argument
on appeal. See Quest Med., Inc. v. Apprill, 90 F.3d 1080, 1087
(5th Cir. 1996).
12
We review a district court’s conclusions of law after a 1
bench trial de novo and its findings of fact for clear error. 2
Reynolds v. Giuliani, 506 F.3d 183, 189 (2d Cir. 2007). We may 3
affirm on any ground appearing in the record. Freedom Holdings, 4
Inc., v. Cuomo, 624 F.3d 38, 49 (2d Cir. 2010). The district 5
court’s grant of injunctive relief is reviewed for abuse of 6
discretion. Third Church of Christ, Scientist, of N.Y.C. v. City 7
of New York, 626 F.3d 667, 669 (2d Cir. 2010). 8
9
RLUIPA 10
A. Applicability 11
RLUIPA bars states from imposing or implementing a “land use 12
regulation” in a manner that imposes a substantial burden on a 13
person or institution’s religious exercise unless it is the least 14
restrictive means of furthering a compelling state interest. 42 15
U.S.C. § 2000cc(a)(1). A “land use regulation” is defined as “a 16
zoning or landmarking law, or the application of such a law, that 17
limits or restricts a claimant’s use or development of land.” § 18
2000cc-5(5). Appellants contend that RLUIPA is entirely 19
inapplicable because SEQRA is not a land use regulation within 20
the meaning of the statute. 3 Though we agree that SEQRA itself 21

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4 The parties agree that no landmarking law was involved in this
dispute. We therefore need only decide whether the SEQRA review
process, as employed here, constituted the application of a
zoning law.
13
is not a zoning or landmarking law for purposes of RLUIPA, we 1
hold that when a government uses a statutory environmental review 2
process as the primary vehicle for making zoning decisions, those 3
decisions constitute the application of a zoning law and are 4
within the purview of RLUIPA. 4
5
Environmental quality laws are designed to inject 6
environmental considerations into government decisionmaking and 7
minimize the adverse environmental impact of regulated actions. 8
See City Council of Watervliet v. Town Bd. of Colonie, 3 N.Y.3d 9
508, 515, 520 n.10 (2004). This approach was first adopted by 10
the federal government with the National Environmental Policy Act 11
of 1969 (“NEPA”), Pub. L. 91-190, 83 Stat. 852 (1970) (codified 12
as amended at 42 U.S.C. § 4321 et seq.). See, Caleb W. 13
Christopher, Success by a Thousand Cuts: The Use of 14
Environmental Impact Assessment in Addressing Climate Change, 9 15
Vt. J. Envtl. L. 549, 552-53 (2008). A number of states, 16
including New York, have enacted state government review laws 17
patterned after NEPA. See, e.g., California Environmental 18
Quality Act, Cal. Pub. Res. Code § 21002.1 et seq. 19
No court of appeals has yet addressed whether an 20
environmental quality statute may constitute a zoning law under 21

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5 The Ninth Circuit noted the question but declined to reach it
in San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d
1024, 1036 (9th Cir. 2004).
6 “Actions” that trigger SEQRA include “(i) projects or
activities directly undertaken by any agency; or projects or
activities supported in whole or part through contracts, grants,
subsidies, loans, or other forms of funding assistance from one
or more agencies; or projects or activities involving the
issuance to a person of a lease, permit, license, certificate or
other entitlement for use or permission to act by one or more
agencies; [and] (ii) policy, regulations, and procedure-making.”
N.Y. Envtl. Conserv. Law § 8-0105(4).
14
RLUIPA. 5 Although the purview of “zoning” is hard to delineate 1
precisely, at its core it involves the division of a community 2
into zones based on like land use. See City of Renton v. 3
Playtime Theatres, Inc., 475 U.S. 41, 54-55 (1986); Daniel R. 4
Mandelker, Land Use Law, §§ 4.02-4.15 (5th ed. 2003); Patricia E. 5
Salkin, American Law of Zoning § 9.2 (5th ed. 2008). We have 6
little difficulty concluding that SEQRA itself is not a zoning 7
law within the meaning of RLUIPA. SEQRA is not concerned with 8
the division of land into zones based on use. It is focused on 9
minimizing the adverse environmental impact of a wide range of 10
discretionary government actions, many of which are totally 11
unrelated to zoning or land use. 6 See N.Y. Envtl. Conserv. Law § 12
8-0105(4). Thus, the Town’s use of the SEQRA process did not 13
automatically implicate RLUIPA. 14
By its terms, however, RLUIPA also applies to “the 15
application of” a zoning law. 42 U.S.C. § 2000cc-5(5). Although 16

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15
SEQRA by itself is not a zoning law, in this case the Town used 1
the SEQRA review process as its vehicle for determining the 2
zoning issues related to the Church’s land use proposal. The 3
fact that these issues were addressed during the SEQRA review 4
process rather than the Town’s normal zoning process does not 5
transform them into environmental quality issues. We therefore 6
conclude that, in these circumstances, the Town’s actions during 7
the review process and its denial of the Church’s proposal 8
constituted an application of its zoning laws sufficient to 9
implicate RLUIPA for a number of reasons. 10
First, the SEQRA review process was triggered because the 11
Church required three discretionary land use approvals from the 12
Town: (1) site plan approval, (2) a waiver of the landscaped 13
parking island requirement, and (3) a variance to allow the 14
building to be located closer to one side of the property. These 15
approvals all relate to zoning and land use rather than 16
traditional environmental concerns. See Midrash Sephardi, Inc. 17
v. Town of Surfside, 366 F.3d 1214, 1235 n.17 (11th Cir. 2004) 18
(citing regulations about building size and parking as “run of 19
the mill” zoning laws); cf. 6 N.Y.C.R.R. § 617.7(c)(1) (providing 20
examples of adverse environmental impacts under SEQRA). If the 21
Town had issued a Negative Declaration and foregone SEQRA review, 22
these three issues would have been treated by the Town as zoning 23

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7 The Town Code is available at http://www.ecode360.com/GR0237.
16
questions and their outcome would have been subject to challenge 1
under RLUIPA. 2
Second, in its Town Code, the Town has intertwined the SEQRA 3
process with its zoning regulations. 7 The regulations relating 4
to SEQRA are contained in Part II of the Town Code, titled “Land 5
Use.” Section 200-6 of the Town Code states that “[n]o action . 6
. . shall be carried out, approved or funded by [a Town agency] 7
unless it has complied with [SEQRA].” Under § 285-55, site plan 8
approval is required for a building permit. Since site plan 9
approval is a discretionary approval that triggers SEQRA, any 10
construction project will involve some level of SEQRA review. If 11
a positive declaration is issued, the applicant will have to 12
proceed through the SEQRA process before addressing any zoning 13
issues, or resolve those issues during the SEQRA process. 6 14
N.Y.C.R.R. § 617.3(a); Town Code §§ 200-8 – 200-11 (describing 15
SEQRA review process that must be completed). 16
Third, once the review process was underway, the Town 17
focused on zoning issues rather than traditional environmental 18
issues. The Town’s primary stated concern was increased traffic. 19
Although increased car traffic potentially raises environmental 20
concerns due to increased emissions, the district court’s factual 21
findings make clear that the Town was concerned with the common 22

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17
everyday annoyances associated with traffic, not with its 1
environmental impact. The Town’s FEIS emphasized concerns about 2
line of sight for cars turning into the proposed property and the 3
adequacy of the Church’s parking. The Town also based denial of 4
the project on the height of proposed retaining walls and the 5
alleged failure to comply with a steep slope ordinance. These 6
are standard land use issues. 7
Finally, to hold that RLUIPA is inapplicable to what amounts 8
to zoning actions taken in the context of a statutorily mandated 9
environmental quality review would allow towns to insulate zoning 10
decisions from RLUIPA review. A town could negotiate all of a 11
project’s zoning details during a SEQRA review and completely 12
preempt its normal zoning process. These decisions would then be 13
immune to RLUIPA challenge. We decline to endorse a process that 14
would allow a town to evade RLUIPA by what essentially amounts to 15
a re-characterization of its zoning decisions. 16
Indeed, the Town’s actions were to that effect 17
notwithstanding that RLUIPA was enacted while the SEQRA review 18
process was underway. The district court’s comprehensive 19
findings demonstrate that the Town disingenuously used SEQRA to 20
obstruct and ultimately deny the Church’s project. The Town’s 21
own Planning Commissioner (subsequently replaced by the Town) 22
believed that the alleged environmental impacts did not warrant a 23

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18
positive declaration, but the Town initiated the SEQRA review 1
process anyway after the Church refused to accede to the Town’s 2
demand that it donate a fire truck or provide some other payment 3
in lieu of taxes. The Town then manipulated its SEQRA findings 4
statement to “kill” the project on the basis of zoning concerns 5
despite the fact that there were no serious environmental 6
impacts. We decline to insulate the Town from liability with 7
regard to its decisions on zoning issues simply because it 8
decided them under the rubric of an environmental quality review 9
process. 10
To recap, in no sense do we believe that ordinary 11
environmental review considerations are subject to RLUIPA. 12
However, when a statutorily mandated environmental quality review 13
process serves as a vehicle to resolve zoning and land use 14
issues, the decision issued constitutes the imposition of a land 15
use regulation as that term is defined in RLUIPA. See 42 U.S.C. 16
§ 2000cc(a)(1); 2000cc-5(5). 17
B. Substantial Burden 18
The Town also argues that, if RLUIPA does apply, the Church 19
was not substantially burdened within the meaning of the statute 20
because the Church had alternative means of building a new 21
facility. The Town contends that the only harm the Church 22
suffered was an inability to build the exact structure it 23

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8 42 U.S.C. § 2000cc(b) also bars discrimination against a
religious entity or treatment on unequal terms with nonreligious
entities. The district court found a substantial burden and
therefore did not reach the plaintiffs’ equal terms or
discrimination RLUIPA claims. Fortress Bible Church, 734 F.
Supp. 2d 409, 508-09. Since we affirm on the substantial burden
claim, we too need not reach the claims for discrimination or
unequal terms.
19
desired, which does not rise to the level of a substantial 1
burden. We find sufficient evidence in the record to support the 2
district court’s finding that the Church’s current facilities 3
were inadequate to accommodate its religious practice and that 4
the Town was acting in bad faith and in hostility to the project 5
such that it would not have allowed the Church to build any 6
worship facility and school on the Pomander Drive Property. 7
Accordingly, we affirm the district court’s holding that the 8
Town’s actions during the SEQRA process substantially burdened 9
the Church’s religious practice. 10
RLUIPA prohibits a government from imposing a land use 11
regulation in a way that creates a substantial burden on the 12
religious exercise of an institution. 8 42 U.S.C. § 2000cc(a)(1). 13
A substantial burden is one that “directly coerces the religious 14
institution to change its behavior.” Westchester Day Sch. v. 15
Vill. of Mamaroneck, 504 F.3d 338, 349 (2d Cir. 2007) (emphasis 16
omitted). The burden must have more than a minimal impact on 17
religious exercise, and there must be a close nexus between the 18
two. Id. 19

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20
A denial of a religious institution’s building application 1
is likely not a substantial burden if it leaves open the 2
possibility of modification and resubmission. Id. However, if 3
the town’s stated willingness to consider another proposal is 4
disingenuous, a conditional denial may rise to the level of a 5
substantial burden. Id. Moreover, when the town’s actions are 6
arbitrary, capricious, unlawful, or taken in bad faith, a 7
substantial burden may be imposed because it appears that the 8
applicant may have been discriminated against on the basis of its 9
status as a religious institution. Id. at 350-51; see also 10
Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of 11
New Berlin, 396 F.3d 895, 900 (7th Cir. 2005). 12
The district court credited Karaman’s testimony that the 13
Church’s Mount Vernon facility was not adequate to accommodate 14
its religious practice. Fortress Bible Church, 734 F. Supp. 2d 15
at 488-90. Specifically, Karaman stated that the Church was 16
unable to expand its membership, which it believes is a God-given 17
mission, host missionaries, perform full-immersion baptisms, or 18
perform “altar calls,” in which members of the congregation pray 19
at the altar. Id. at 488-89. Karaman also testified that the 20
Church was unable to adequately run a Christian school because 21
the School’s present facilities did not have enough space to 22
accommodate handicapped students or higher-level subjects. Id. 23

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21
at 490-91. We identify no error in the district court’s finding 1
that the Church was substantially burdened by its inability to 2
construct an adequate facility. 3
Similarly, we find no error in the district court’s finding 4
that the “Defendants’ purported willingness to consider a 5
modified plan [was] wholly disingenuous.” Id. at 502. The 6
district court identified ample evidence that the Town wanted to 7
derail the Church’s project after it refused to accede to its 8
demand for a payment in lieu of taxes, and that it had 9
manipulated the SEQRA process to that end. Additionally, the 10
Town continually rejected the Church’s attempts to accommodate 11
its stated concerns. The record easily supports the district 12
court’s finding that the Town’s actions amounted to a complete 13
denial of the Church’s ability to construct an adequate facility 14
rather than a rejection of a specific building proposal. See 15
Westchester Day Sch., 504 F.3d at 349. 16
Finally, we conclude, as the district court found based upon 17
ample evidence, that the burden on the Church was more than 18
minimal and that there was a close nexus between the Town’s 19
denial of the project and the Church’s inability to construct an 20
adequate facility. Fortress Bible Church, 734 F. Supp. 2d at 21
501-08. Because, as the district court found, the Town’s stated 22
compelling interests were disingenuous, its actions violated 23

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22
RLUIPA. Id. at 502-05, 508. Our conclusion that the Church was 1
substantially burdened is bolstered by the arbitrary, capricious, 2
and discriminatory nature of the Town’s actions, taken in bad 3
faith. Westchester Day Sch., 504 F.3d at 350-51. The Town 4
attempted to extort from the Church a payment in lieu of taxes, 5
it ignored and then replaced its Planning Commissioner when he 6
advocated on the Church’s behalf, and Town staff intentionally 7
destroyed relevant evidence. Further, the district court’s 8
finding regarding the Town’s open hostility to the Church qua 9
church was not clear error; the record reflects comments from 10
members of the Board indicating that they were opposed to the 11
project because it was “another church.” The Town’s desire to 12
prevent the Church from building on its property relegated it to 13
facilities that were wholly inadequate to accommodate its 14
religious practice. We affirm the district court’s finding that 15
the Town violated the Church’s rights under RLUIPA. 16
17
Free Exercise 18
The Town also challenges the district court’s holding that 19
it violated the Church’s First Amendment right to the Free 20
Exercise of Religion. The First Amendment generally prohibits 21
government actions that “substantially burden the exercise of 22
sincerely held religious beliefs” unless those actions are 23

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23
narrowly tailored to advance a compelling government interest. 1
Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 2
574 (2d Cir. 2002). In other words, such actions are subject to 3
strict scrutiny by reviewing courts. However, “[w]here the 4
government seeks to enforce a law that is neutral and of general 5
applicability, . . . it need only demonstrate a rational basis 6
for its enforcement.” Id.; see also Employment Div. v. Smith, 7
494 U.S. 872, 879 (1990). 8
In this case, the district court applied strict scrutiny 9
and, referencing its RLUIPA analysis, concluded that the Town had 10
substantially burdened the Church’s religious exercise and lacked 11
a compelling interest. On appeal, the Town contends that 12
rational basis review, rather than strict scrutiny, is the 13
correct standard in this context because SEQRA is a neutral law 14
of general applicability. The Church maintains that strict 15
scrutiny is appropriate because SEQRA review involves an 16
individualized assessment, thus placing it outside the purview of 17
Smith. See Church of the Lukumi Babalu Aye, Inc. v. City of 18
Hialeah, 508 U.S. 520, 537 (1993). 19
The Second Circuit has not specifically addressed whether 20
zoning decisions trigger rational basis review or strict 21
scrutiny. Although some scattered district court decisions have 22
held that zoning laws by their nature involve individualized 23

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24
assessments and trigger strict scrutiny, see Cottonwood Christian 1
Ctr. v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1222- 2
23 (C.D. Cal. 2002); Freedom Baptist Church of Del. Cnty. v. Twp. 3
of Middletown, 204 F. Supp. 2d 857, 868 (E.D. Pa. 2002), the 4
majority of circuits that have addressed this question have 5
concluded that zoning laws with the opportunity for 6
individualized variances are neutral laws of general 7
applicability. See Civil Liberties for Urban Believers v. City 8
of Chicago, 342 F.3d 752, 764 (7th Cir. 2003); Cornerstone Bible 9
Church v. City of Hastings, 948 F.2d 464, 472 (8th Cir. 1991); 10
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 11
651-55 (10th Cir. 2006); First Assembly of God of Naples, Fla., 12
Inc. v. Collier Cnty., 20 F.3d 419, 423-24 (11th Cir. 1994). 13
Similarly, this circuit has found a landmarking law to be 14
facially neutral despite the fact that it gave the government the 15
ability to designate “historical districts,” and therefore 16
entailed some measure of individual assessment. Rector, Wardens, 17
& Members of Vestry of St. Bartholomew’s Church v. City of New 18
York, 914 F.2d 348, 354-56 (2d Cir. 1990). 19
We need not resolve here whether zoning variance decisions 20
challenged under the Free Exercise Clause are subject to strict 21
scrutiny or rational basis review because we conclude that on the 22
record before us there was no rational basis for the Town’s 23

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9 Appellants also challenge the district court’s conclusion that
they violated the parallel Free Exercise Clause in the New York
Constitution. Under that clause, courts employ a balancing test
to determine if the interference with religious exercise was
unreasonable. Catholic Charities of Diocese of Albany v. Serio,
7 N.Y.3d 510, 525 (2006). For the reasons stated above, we
conclude that the Town’s interference with the Church’s project
was not reasonable and violated the New York Constitution.
25
actions. The district court’s holding was premised on its 1
finding that the Town had acted in bad faith and disingenuously 2
misused the SEQRA process to block the Church’s project. The 3
district court found as a factual matter that the reasons offered 4
by the Town for delaying and denying the project were pretextual 5
and concluded that the Town’s witnesses were not credible. See 6
Fortress Bible Church, 734 F. Supp. 2d at 491-94 (providing a 7
“mere sampling” of examples of non-credible testimony by Town 8
witnesses), 505-08 (explaining how each of the Town’s stated 9
reasons was pretextual). The record supports this conclusion. 10
There is no basis to distrust the district court’s finding that 11
the Town’s proffered rational bases were not sincere and that it 12
was instead motivated solely by hostility toward the Church qua 13
church. Accordingly, we conclude that the Town lacked a rational 14
basis for delaying and denying the Church’s project and therefore 15
violated the Church’s Free Exercise rights. 9
16
The Town also presses the argument that the Free Exercise 17
Clause is inapplicable to land use regulations. It points to 18
decisions from several circuits holding that religious 19

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26
institutions do not have a constitutional right to build wherever 1
they like. See, e.g., Lighthouse Inst. for Evangelism, Inc. v. 2
City of Long Branch, 510 F.3d 253, 273-74 (3d Cir. 2007); 3
Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City 4
of Lakewood, 699 F.2d 303, 306-07 (6th Cir. 1983). The cases 5
cited by the Town are inapposite. In those cases, the proposed 6
building was directly barred by town ordinance and the religious 7
institution sought individual relief from the general rule. The 8
burden in this case resulted from the Town’s disingenuous bad 9
faith efforts to stall and frustrate this particular Church’s 10
construction plan, which was not itself barred by the Town’s 11
zoning code. The lengthy SEQRA review process was costly to the 12
Church, and the Church was forced to remain in an inadequate 13
facility for its duration. 14
For these reasons, we affirm the district court’s holding 15
that the Town violated the Church’s First Amendment right to the 16
free exercise of religion. 17
18
Equal Protection 19
The Town argues on appeal that the district court erred in 20
finding a violation of the Fourteenth Amendment’s Equal 21
Protection Clause because the Church’s class-of-one theory is 22
barred by Engquist v. Ore. Dep’t of Agric., 553 U.S. 591 (2008), 23

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27
and because the Church has not provided a single comparator 1
situated similarly to it in all respects. 2
The Equal Protection Clause has traditionally been applied 3
to governmental classifications that treat certain groups of 4
citizens differently than others. Id. at 601. In Village of 5
Willowbrook v. Olech, 528 U.S. 562, 564 (2000), however, the 6
Supreme Court affirmed the existence of a class-of-one theory for 7
equal protection claims, under which a single individual can 8
claim a violation of her Equal Protection rights based on 9
arbitrary disparate treatment. In Olech, a property owner sought 10
to connect her property to the municipal water supply. The 11
village had required a 15-foot easement from other property 12
owners who had sought to connect to the water supply, but 13
demanded a 33-foot easement from Olech. The Supreme Court 14
recognized an Equal Protection claim “where the plaintiff alleges 15
that she has been intentionally treated differently from others 16
similarly situated and that there is no rational basis for the 17
difference in treatment.” Id. at 564. 18
Eight years later, in Engquist, the Court clarified that a 19
class-of-one claim is not available in the public employment 20
context. It based its holding primarily on the government’s 21
status in that context as a proprietor rather than a sovereign, 22
and the corresponding decrease in constitutional protections for 23

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28
its employees. 553 U.S. at 598-99, 605-09. The Court also noted 1
that certain governmental functions that involve discretionary 2
decisionmaking are not suitable for class-of-one claims. Id. at 3
603-04. 4
We have since held that Engquist does not bar all class-of- 5
one claims involving discretionary state action. In Analytical 6
Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135 (2d Cir. 2010), we 7
recognized a class-of-one claim in the context of a state system 8
for issuing clinical testing laboratory permits. We noted that 9
the state was acting as a sovereign rather than a proprieter, and 10
further observed that the licensing panel did not have complete 11
discretion because it operated within a regulatory framework, 12
held a mandatory hearing, and its decision could be challenged 13
under New York Civil Procedure Law Article 78. 14
Like Analytical Diagnostic Labs, this case presents a clear 15
standard against which departures can be easily assessed. See 16
Engquist, 553 U.S. at 602-03. The SEQRA review process is guided 17
by regulation and the result can be challenged under Article 78. 18
Additionally, the Town was acting in its regulatory capacity as a 19
sovereign rather than as a proprieter; it was making decisions 20
about the ways in which property owners could use their land. 21
The evidence provided by the Church illustrates a disparity in 22

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29
treatment that cannot fairly be attributed to discretion. A 1
class-of-one claim is thus cognizable in this context. 2
The Town argues that, even if a class-of-one claim is 3
viable, the Church’s evidence was not sufficient to establish 4
such a claim because it did not provide a single comparator 5
similarly situated in all respects, but instead presented 6
evidence of multiple projects that were each treated differently 7
with regard to a discrete issue. We have held that a class-of- 8
one claim requires a plaintiff to show an extremely high degree 9
of similarity between itself and its comparators. Ruston v. Town 10
Bd. for Skaneateles, 610 F.3d 55, 59-60 (2d Cir. 2010). The 11
Church must establish that “(i) no rational person could regard 12
the circumstances of the plaintiff to differ from those of a 13
comparator to a degree that would justify the differential 14
treatment on the basis of a legitimate government policy; and 15
(ii) the similarity in circumstances and difference in treatment 16
are sufficient to exclude the possibility that the defendants 17
acted on the basis of a mistake.” Id. at 60 (quotation marks 18
omitted). 19
The Church’s use of multiple comparators is unusual, and 20
presents us with a matter of first impression. We conclude, 21
however, that the Church’s evidence of several other projects 22
treated differently with regard to discrete issues is sufficient 23

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30
in this case to support a class-of-one claim. The purpose of 1
requiring sufficient similarity is to make sure that no 2
legitimate factor could explain the disparate treatment. See 3
Neilson v. D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005) (noting 4
that purpose of comparator requirement is to “provide an 5
inference that the plaintiff was intentionally singled out for 6
reasons that so lack any reasonable nexus with a legitimate 7
governmental policy that an improper purpose . . . is all but 8
certain”), overruled on other grounds, Appel v. Spiridon, 531 9
F.3d 138, 139-40 (2d Cir. 2008). Where, as here, the issues 10
compared are discrete and not cumulative or affected by the 11
character of the project as a whole, multiple comparators are 12
sufficient so long as the issues being compared are so similar 13
that differential treatment with regard to them cannot be 14
explained by anything other than discrimination. We conclude 15
that there is sufficient evidence in the record to support the 16
Church’s class-of-one claim. 17
The principal reasons for denying the Church’s application 18
cited in the Town’s FEIS were violation of a recently enacted 19
“steep slope” zoning ordinance, stress on the police and fire 20
departments, retaining walls that constituted an attractive 21
nuisance, and traffic and parking problems. A proposal by the 22
Hackley School, located in a mixed-use neighborhood, to double 23

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31
its size, involved the same steep slope concerns as the Church’s 1
proposal. The Hackley School proposal was submitted in 2001, 2
almost three years after the Church’s proposal, and at that time, 3
the Town had yet to enact its steep slope ordinance. While 4
considering the ordinance, the Town ordered a moratorium on steep 5
slope construction. It issued the Hackley School a waiver from 6
this moratorium, however, and then expedited review of the 7
proposal so that it was approved prior to adoption of the steep 8
slope ordinance. Despite the fact that the Church’s proposal was 9
submitted years earlier than the Hackley School’s, the Town cited 10
the Church’s failure to comply with the steep slope ordinance as 11
a basis for denying its proposal and never provided it with a 12
waiver or the option of expedited consideration. 13
The Hackley School proposal also involved retaining walls 14
comparable to those proposed by the Church. Although the Town 15
did not raise retaining walls as a concern with the Hackley 16
School’s application, it relied on the Church’s proposed 17
retaining walls as a basis for denying the Church’s application, 18
and did so even after the Church had offered to construct a fence 19
on top of its walls to eliminate any danger. 20
Proposals by Union Baptist Church and the Solomon Schechter 21
School both failed to provide the amount of parking required by 22
Town ordinance. In both instances, however, the Town 23

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10 In fact, the Town appears to have been acutely aware of the
overlapping traffic issues. The Deputy Town Attorney advised the
Town Planning Commissioner that because of “the comparisons that
may be drawn” between the Church and LOSCO, “please be careful
and conscious of potential issues in drafting . . . the
determination of significance. . . . Remember that they have the
same traffic consultant and be wary.” Fortress Bible Church, 734
F. Supp. 2d at 476.
32
accommodated the proposals by allowing the use of on-street 1
parking and approved the projects without requiring the mandated 2
number of spaces. The Church’s proposal contained the required 3
number of spaces, but the Town still cited parking concerns as a 4
reason for denying it and failed to offer any accommodation. 5
Finally, the Town’s primary stated reason for issuing a 6
positive declaration was increased traffic. However, a proposal 7
by LDC Properties, Inc., to build a commercial office building 8
near the same major intersection as the Church’s proposal (“the 9
LOSCO proposal”) received a conditioned negative declaration even 10
though, according to the Town’s own traffic consultant, it raised 11
the same traffic concerns as the Church’s proposal. 10 The Town 12
did not require the LOSCO proposers to take any steps to mitigate 13
these traffic concerns. Similarly, the Solomon Schechter School 14
proposal was located close to the Pomander Drive property and 15
created similar vehicle and pedestrian traffic concerns. The 16

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11 Additionally, for both LOSCO and the Solomon Schechter School,
the Town analyzed the impact on traffic under the assumption that
the Church’s proposal had already been completed and was
generating traffic. Yet it still approved the proposals without
requiring any traffic mitigation.
33
Town approved this application without requiring any steps from 1
the applicant to mitigate traffic. 11
2
In short, the Church has presented overwhelming evidence 3
that its application was singled out by the Town for disparate 4
treatment. Though each of the comparator projects involved 5
features unique to that proposal, the Town has not explained how 6
those other features could have influenced discrete issues like 7
the adequacy of parking, the safety of retaining walls, or 8
increased traffic. We recognize that, where multiple reasons are 9
cited in support of a state actor’s decision, it will usually be 10
difficult to establish a class-of-one claim. However, where, as 11
here, a decision is based on several discrete concerns, and a 12
claimant presents evidence that comparators were treated 13
differently with regard to those specific concerns without any 14
plausible explanation for the disparity, such a claim can 15
succeed. Further, such a claim is bolstered where, as here, the 16
evidence demonstrates that the government’s stated concerns were 17
pretextual. We affirm the district court’s conclusion that the 18
Church has adequately established a class-of-one Equal Protection 19
claim. 20

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34
Article 78 1
Under Article 78 of New York’s Civil Procedure Law, a town’s 2
SEQRA determination may be set aside when it is “arbitrary, 3
capricious or unsupported by the evidence.” Riverkeeper, Inc. v. 4
Planning Bd. of Southeast, 9 N.Y.3d 219, 232 (2007). The 5
district court held that the Town’s determination was not 6
supported by substantial evidence because the Town’s stated 7
concerns were either “unsupported” or “wholly fabricated.” 8
Fortress Bible Church, 734 F. Supp. 2d at 519. The Town contends 9
that its findings were rationally based on the findings of its 10
traffic consultant, and that the district court’s decision was 11
therefore in error. 12
As we have previously discussed, the record contains ample 13
evidence to support the district court’s conclusion that the 14
Town’s actions were wholly disingenuous. Accordingly, we 15
identify no error with the district court’s decision to set aside 16
the Town’s SEQRA determination. 17
18
The District Court’s Injunction 19
Finally, the Town argues that the district court abused its 20
discretion in crafting its injunction because it was not 21
permitted to enjoin “governmental determinations that have not 22
yet been made,” Appellant’s Br. at 37, and because it had no 23

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35
authority to bind the Zoning Board, which was not a party to the 1
litigation. 2
We review a district court’s grant of injunctive relief for 3
abuse of discretion. See Etuk v. Slattery, 936 F.2d 1433, 1443 4
(2d Cir. 1991). A district court has substantial freedom in 5
framing an injunction. Id. The district court’s injunction: (1) 6
ordered that the Church’s 2000 site plan be deemed approved for 7
SEQRA purposes and enjoined any further SEQRA review; (2) ordered 8
the Board to grant the Church a waiver from the landscaped 9
parking island requirement; (3) ordered the Zoning Board to grant 10
a variance permitting a side building location; (4) ordered the 11
Town to issue a building permit for the 2000 site plan; and (5) 12
enjoined the Town from taking any action that unreasonably 13
interferes with the Church’s project. 14
With regard to its first argument, the Town relies on 15
Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010). 16
Geertson involved a suit against the Animal and Plant Health 17
Inspection Service (“APHIS”). APHIS had decided to completely 18
deregulate a certain species of genetically modified alfalfa. 19
The district court enjoined APHIS from fully deregulating the 20
alfalfa, and further issued an injunction preemptively barring 21
APHIS from implementing any partial deregulation plan. The 22
Supreme Court held that the latter portion of the injunction was 23

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36
an abuse of the district court’s discretion because the 1
plaintiffs could file a new suit if APHIS actually attempted 2
partial deregulation and there was no evidence that partial 3
deregulation would cause the same irreparable harm as full 4
deregulation. Id. at 2760-61. Geertson has no bearing on the 5
present case. The district court’s injunction was specifically 6
tailored to the injury the Church had suffered and did not exceed 7
the district court’s discretion. 8
The Town also argues that the portion of the injunction 9
compelling the Zoning Board to grant a variance permitting a side 10
building location exceeded the district court’s authority 11
because, under New York law, the Zoning Board is a separate 12
entity from the Town over which the district court had no 13
jurisdiction. See Commco, Inc. v. Amelkin, 62 N.Y.2d 260, 265-68 14
(1984) (town board has no authority to bind the town’s zoning 15
board to a consent decree to which the zoning board was not a 16
party). We need not reach this question, however, because the 17
Town did not raise this objection before the district court and 18
has therefore waived it on appeal. See In re Nortel Networks 19
Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008). 20
21
22
23

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37
CONCLUSION 1
For the reasons described above, the Town’s arguments on 2
appeal are without merit and we conclude that the relief ordered 3
by the district court was within its discretion. The judgment of 4
the district court is AFFIRMED. 5

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