     06-1464-cv
     Westchester Day School v. Vill. of Mamaroneck



 1                                       UNITED STATES COURT OF APPEALS
 2                                           FOR THE SECOND CIRCUIT
 3
 4                                                      _______________
 5
 6                                                     August Term, 2006
 7
 8         (Argued December 1, 2006                                 Decided October 17, 2007)
 9
10                                                   Docket No. 06-1464-cv
11
12                                                      _______________
13
14                                              Westchester Day School,
15
16                                                                 Plaintiff-Appellee,
17
18                                                            v.
19
20   Village of Mamaroneck, The Board of Appeals of the Village of
21   Mamaroneck, Mauro Gabriele, In his official capacity as member of
22   the Board of Appeals of the Village of Mamaroneck, George
23   Mgrditchian, In his official capacity as member of the Board of
24   Appeals of the Village of Mamaroneck, Peter Jackson, In his
25   official capacity as member of the Board of Appeals of the
26   Village of Mamaroneck, Barry Weprin, In his official capacity as
27   member of the Board of Appeals of the Village of Mamaroneck,
28   Clark Neuringer, In his official capacity as member of the Board
29   of Appeals of the Village of Mamaroneck and Antonio Vozza, In his
30   official capacity as a former member of the Board of Appeals of
31   the Village of Mamaroneck,
32
33                                                                 Defendants-Appellants,
34
35                                            United States of America,
36
37                                                                 Intervenor-Defendant.
38
39                                                      _______________
40
41   Before:
42                                CARDAMONE, and RAGGI, Circuit Judges,
43                                     and BERMAN, District Judge*.
44
45                                                      _______________
46
47
48   _______________
49
50   *         Hon. Richard M. Berman, United States District Judge for the
51             Southern District of New York, sitting by designation.
 1                            _______________
 2
 3        Defendant Village of Mamaroneck appeals from a judgment of
 4   the United States District Court for the Southern District of New
 5   York (Conner, J.) entered March 3, 2006, ruling that the Village
 6   violated the Religious Land Use and Institutionalized Persons Act
 7   by denying Westchester Day School a special permit to expand its
 8   facilities.
 9
10        Affirmed.
11
12                            _______________
13
14   JOEL C. HAIMS, Morrison & Foerster LLP, New York, New York (Jack
15        C. Auspitz, Morrison & Foerster LLP, New York, New York;
16        Stanley D. Bernstein, Berstein Liebhard & Lifshitz, LLP, New
17        York, New York, of counsel), for Plaintiff-Appellee.
18
19   KEVIN J. PLUNKETT, White Plains, New York (Robert Hermann, Darius
20        P. Chafizadeh, Thacher Proffitt & Wood LLP, White Plains,
21        New York; Joseph C. Messina, Lisa M. Fantino, Law Office of
22        Joseph C. Messina, Mamaroneck, New York, of counsel), for
23        Defendants-Appellants.
24
25   SARAH E. LIGHT, Assistant United States Attorney, New York, New
26        York (Michael J. Garcia, United States Attorney, Sara L.
27        Shudofsky, Assistant United States Attorney, Southern
28        District of New York, New York, New York; Wan J. Kim,
29        Assistant Attorney General, David K. Flynn, Eric W. Treene,
30        Sarah E. Harrington, U.S. Department of Justice, Civil
31        Rights Division, Appellate Section, Washington, D.C., of
32        counsel), for Intervenor-Defendant and Amicus Curiae the
33        United States of America.
34
35                            _______________
36
37   Derek L. Gaubatz, Washington, D.C. (Anthony R. Picarello, Jr.,
38        Lori E. Halstead, The Becket Fund for Religious Liberty,
39        Washington, D.C., of counsel), filed a brief on behalf of
40        the Becket Fund for Religious Liberty, the Association of
41        Christian Schools International, and the Council for
42        Christian Colleges and Universities as Amici Curiae.
43
44                            _______________
1    CARDAMONE, Circuit Judge:

2         The appeal before us is from a judgment entered March 3,

3    2006 in the United States District Court for the Southern

4    District of New York (Conner, J.) that ordered the defendant

5    Village of Mamaroneck to issue a permit to plaintiff Westchester

6    Day School to proceed with the expansion of its facilities.     For

7    nearly 60 years Westchester Day School (plaintiff, WDS, day

8    school, or school) has been operating an Orthodox Jewish co-
9    educational day school with classes from pre-school to eighth

10   grade.    Believing it needed to expand, the school submitted

11   construction plans to the Village of Mamaroneck and an

12   application for the required special permit.    When the village

13   zoning board turned the application down, the present litigation

14   ensued.

15        In the district court the school argued that the zoning

16   board in denying its application for a permit violated the

17   Religious Land Use and Institutionalized Persons Act (RLUIPA or
18   Act), 42 U.S.C. § 2000cc et seq., by substantially burdening its

19   religious exercise without a compelling government interest to

20   justify its action.    Following a bench trial, the district court

21   ordered the zoning board to approve the school's application,

22   agreeing that RLUIPA had been violated.

23                                 BACKGROUND

24                   A.   Westchester Day School's Property

25        Westchester Day School is located in the Orienta Point

26   neighborhood of the Village of Mamaroneck, Westchester County,

                                        2
1    New York.    Its facilities are situated on 25.75 acres of largely

2    undeveloped land (property) owned by Westchester Religious

3    Institute.   Westchester Religious Institute allows the school and

4    other entities to use the property.

5         The school's buildings are far from typical.    The original

6    structures were built in the late nineteenth century, one as a

7    summer home and another as a stable.    The day school, which

8    opened in 1948, renovated the summer home and the stable to
9    create classrooms.   The school constructed Wolfson Hall in the

10   1960s and in 1979 Westchester Hebrew High School, a separate

11   entity from WDS, built a two-story high school building on the

12   property.    Thus, currently there are four principal buildings on

13   the property:   the summer home (Estate House or Castle), the

14   stable (Carriage House), Wolfson Hall, and the high school

15   building.

16        The Mamaroneck Village Code permits private schools to

17   operate in "R-20 Districts" if the Zoning Board of Appeals of the
18   Village of Mamaroneck (ZBA or zoning board) grants them a special

19   permit.   The property is in an R-20 district and WDS operates

20   subject to obtaining such a permit which must be renewed every

21   three years.    Most recently the day school's permit was

22   unanimously renewed on November 2, 2000, before the dispute

23   giving rise to this litigation began.    Several other schools are

24   located in the vicinity of Orienta Point, including the Liberty

25   Montessori School and Mamaroneck High School.    Numerous large

26   properties border the school property, including the Orienta

                                       3
1    Beach Club, the Beach Point Club, the Hampshire Country Club, and

2    several boat yards.

3                     B.   Westchester Day School's Aims

4         As a Jewish private school, Westchester Day School provides

5    its students with a dual curriculum in Judaic and general

6    studies.   Even general studies classes are taught so that

7    religious and Judaic concepts are reinforced.   In the nursery and

8    kindergarten classes no distinction exists between Judaic and
9    general studies; the dual curriculum is wholly integrated.     In

10   grades first through eighth, students spend roughly half their

11   day on general subjects such as mathematics and social studies

12   and half on Judaic studies that include the Bible, the Talmud,

13   and Jewish history.

14        In an effort to provide the kind of synthesis between the

15   Judaic and general studies for which the school aims, the

16   curriculum of virtually all secular studies classes is permeated

17   with religious aspects, and the general studies faculty actively
18   collaborates with the Judaic studies faculty in arranging such a

19   Jewish-themed curriculum.   For example, the General Studies

20   Curriculum Guide describes how social studies is taught in grades

21   6, 7, and 8, explaining that WDS tries "to develop an

22   understanding of humanistic, philosophical thought, the nature of

23   cause and effect in history, and the application of ethical

24   Judaic principles to history and daily life" (emphasis added).

25   The Guide further notes that "[s]tudying the history of Eretz

26   Yisrael [the land of Israel] has become an increasingly prominent

                                       4
1    feature of assemblies and social studies lessons."   And, the

2    Guide's Science Curriculum Map notes that in science class first

3    graders are taught about "the world around them [and] the

4    seasonal changes and connections to the Jewish holidays"

5    (emphasis added).

6         The school's physical education teachers confer daily with

7    the administration to ensure that during physical education

8    classes Jewish values are being inculcated in the students.     This
9    kind of integration of Jewish and general culture is made

10   possible when a school actively and consciously designs

11   integrated curricular and extracurricular activities on behalf of

12   its student body.   See Jack Bieler, Integration of Judaic and

13   General Studies in the Modern Orthodox Day School, 54:4 Jewish

14   Education 15 (1986), available at http://www.lookstein.org/

15   integration/bieler.htm.   Thus, the school strives to have every

16   classroom used at times for religious purposes, whether or not

17   the class is officially labeled Judaic.   A Jewish day school like
18   WDS exists, at least in part, because Orthodox Jews believe it is

19   the parents' duty to teach the Torah to their children.    Since

20   most Orthodox parents lack the time to fulfill this obligation

21   fully, they seek out a school like WDS.

22                        C.   The Expansion Project

23        By 1998 WDS believed its current facilities inadequate to

24   satisfy the school's needs.   The district court's extensive

25   findings reveal the day school's existing facilities are

26   deficient and that its effectiveness in providing the education

                                       5
1    Orthodox Judaism mandates has been significantly hindered as a

2    consequence.   The school's enrollment has declined since 2001, a

3    trend the district court attributed in part to the zoning board's

4    actions.   As a result of the deficiencies in its current

5    facilities the school engaged professional architects, land

6    planners, engineers, and an environmental consulting firm to

7    determine what new facilities were required.   Based on these

8    professionals' recommendations, WDS decided to renovate Wolfson
9    Hall and the Castle and to construct a new building, Gordon Hall,

10   specifically designed to serve the existing student population.

11   The renovations would add 12 new classrooms; a learning center;

12   small-group instructional rooms; a multi-purpose room; therapy,

13   counseling, art and music rooms; and computer and science labs.

14   All of them were to be used from time to time for religious

15   education and practice.

16        In October 2001 the day school submitted to the zoning board

17   an application for modification of its special permit to enable
18   it to proceed with this $12 million expansion project.   On

19   February 7, 2002 the ZBA voted unanimously to issue a "negative

20   declaration," which constituted a finding that the project would

21   have no significant adverse environmental impact and thus that

22   consideration of the project could proceed.    After the issuance

23   of the negative declaration, a small but vocal group in the

24   Mamaroneck community opposed the project.   As a result of this

25   public opposition, on August 1, 2002 the ZBA voted 3-2 to rescind

26   the negative declaration.   The effect of the rescission was to

                                      6
1    require WDS to prepare and submit a full Environmental Impact

2    Statement.

3                         D.   Prior Legal Proceedings

4         Instead, the school commenced the instant litigation on

5    August 7, 2002 contending the rescission of the negative

6    declaration violated RLUIPA and was void under state law.     The

7    suit named as defendants the Village of Mamaroneck, its ZBA, and

8    the members of the zoning board in their official capacities
9    (collectively, the Village or defendant).

10        On December 4, 2002 the district court granted WDS's motion

11   for partial summary judgment and held that the negative

12   declaration had not been properly rescinded, and therefore

13   remained in full force and effect.      See Westchester Day Sch. v.

14   Vill. of Mamaroneck, 236 F. Supp. 2d 349 (S.D.N.Y. 2002).      The

15   Village did not appeal this ruling.     Instead, the ZBA proceeded

16   to conduct additional public hearings to consider the merits of

17   the application.    The ZBA had the opportunity to approve the
18   application subject to conditions intended to mitigate adverse

19   effects on public health, safety, and welfare that might arise

20   from the project.   Rather, on May 13, 2003 the ZBA voted 3-2 to

21   deny WDS's application in its entirety.

22        The stated reasons for the rejection included the effect the

23   project would have on traffic and concerns with respect to

24   parking and the intensity of use.      Many of these grounds were

25   conceived after the ZBA closed its hearing process, giving the

26   school no opportunity to respond.      The district court found the

                                        7
1    stated reasons for denying the application were not supported by

2    evidence in the public record before the ZBA, and were based on

3    several factual errors.   It surmised that the application was in

4    fact denied because the ZBA gave undue deference to the public

5    opposition of the small but influential group of neighbors who

6    were against the school's expansion plans.   It also noted that

7    the denial of the application would result in long delay of WDS's

8    efforts to remedy the gross inadequacies of its facilities, and
9    substantially increase construction costs.

10        On May 29, 2003 the school filed an amended complaint

11   challenging the denial of its application.   It asserted claims

12   under RLUIPA, 42 U.S.C. § 1983, and the All Writs Act.   Neither

13   party demanded a jury trial.    WDS moved for partial summary

14   judgment, and on September 5, 2003 the district court granted

15   that motion, holding that the Village had violated RLUIPA.      See

16   Westchester Day Sch. v. Vill. of Mamaroneck, 280 F. Supp. 2d 230

17   (S.D.N.Y. 2003).   When the Village appealed, we vacated the
18   district court's order and remanded the case for further

19   proceedings.   See Westchester Day Sch. v. Vill. of Mamaroneck,

20   386 F.3d 183 (2d Cir. 2004).    After remand, the Village, for the

21   first time, demanded a jury trial, which the district court

22   denied.   See Westchester Day Sch. v. Vill. of Mamaroneck, 363 F.

23   Supp. 2d 667 (S.D.N.Y. 2005).   The Village moved for summary

24   judgment, which the trial court denied as to WDS's RLUIPA and All

25   Writs Act claims, but granted as to the school's claim under 42



                                       8
1    U.S.C. § 1983.   See Westchester Day Sch. v. Vill. of Mamaroneck,

2    379 F. Supp. 2d 550 (S.D.N.Y. 2005).

3         A seven-day bench trial began on November 14, 2005 and

4    resulted in the March 2006 judgment.       The district court ordered

5    the Village to issue WDS's special permit immediately, but

6    reserved decision on damages and attorneys' fees pending

7    appellate review.   See Westchester Day Sch. v. Vill. of

8    Mamaroneck, 417 F. Supp. 2d 477 (S.D.N.Y. 2006).       From this
9    ruling the Village appeals.1

10                                 DISCUSSION

11                          I    Standard of Review

12        We review the district court's findings of fact for clear

13   error and its conclusions of law de novo.        See Guiles ex rel.

14   Guiles v. Marineau, 461 F.3d 320, 323-24 (2d Cir. 2006).

15                        II    Application of RLUIPA

16        RLUIPA prohibits the government from imposing or

17   implementing a land use regulation in a manner that
18             imposes a substantial burden on the religious
19             exercise of a person, including a religious
20             assembly or institution, unless the
21             government demonstrates that imposition of
22             the burden on that person, assembly, or
23             institution (A) is in furtherance of a
24             compelling governmental interest; and (B) is
25             the least restrictive means of furthering
26             that compelling governmental interest.
27


     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
1    42 U.S.C. § 2000cc(a)(1).     This provision applies only when the

2    substantial burden imposed (1) is in a program that receives

3    Federal financial assistance; (2) affects commerce with foreign

4    nations, among the several states, or with Indian tribes; or (3)

5    "is imposed in the implementation of a land use regulation or

6    system of land use regulations, under which a government makes,

7    or has in place formal or informal procedures or practices that

8    permit the government to make, individualized assessments of the
9    proposed uses for the property involved."     42 U.S.C.

10   § 2000cc(a)(2).

11                           A.   Religious Exercise

12        Religious exercise under RLUIPA is defined as "any exercise

13   of religion, whether or not compelled by, or central to, a system

14   of religious belief."    § 2000cc-5(7)(A).   Further, using,

15   building, or converting real property for religious exercise

16   purposes is considered to be religious exercise under the

17   statute.   § 2000cc-5(7)(B).    To remove any remaining doubt
18   regarding how broadly Congress aimed to define religious

19   exercise, RLUIPA goes on to state that the Act's aim of

20   protecting religious exercise is to be construed broadly and "to

21   the maximum extent permitted by the terms of this chapter and the

22   Constitution."    § 2000cc-3(g).

23        Commenting at an earlier stage in this litigation on how to

24   apply this standard, we expressed doubt as to whether RLUIPA

25   immunized all conceivable improvements proposed by religious

26   schools.   That is to say, to get immunity from land use

                                        10
1    regulation, religious schools need to demonstrate more than that

2    the proposed improvement would enhance the overall experience of

3    its students.   Westchester Day Sch., 386 F.3d at 189.   For

4    example, if a religious school wishes to build a gymnasium to be

5    used exclusively for sporting activities, that kind of expansion

6    would not constitute religious exercise.   Or, had the ZBA denied

7    the Westchester Religious Institute's 1986 request for a special

8    permit to construct a headmaster's residence on a portion of the
9    property, such a denial would not have implicated religious

10   exercise.   Nor would the school's religious exercise have been

11   burdened by the denial of a permit to build more office space.

12   Accordingly, we suggested the district court consider whether the

13   proposed facilities were for a religious purpose rather than

14   simply whether the school was religiously-affiliated.    Id.

15        On remand, the district court conducted the proper inquiry.

16   It made careful factual findings that each room the school

17   planned to build would be used at least in part for religious
18   education and practice, finding that Gordon Hall and the other

19   facilities renovated as part of the project, in whole and in all

20   of their constituent parts, would be used for "religious

21   education and practice."   In light of these findings, amply

22   supported in the record, the expansion project is a "building

23   [and] conversion of real property for the purpose of religious

24   exercise" and thus is religious exercise under § 2000cc-5(7)(B).

25        Hence, we need not now demarcate the exact line at which a

26   school expansion project comes to implicate RLUIPA.   That line

                                     11
1    exists somewhere between this case, where every classroom being

2    constructed will be used at some time for religious education,

3    and a case like the building of a headmaster's residence, where

4    religious education will not occur in the proposed expansion.

5                         B.   Substantial Burden

6         Since substantial burden is a term of art in the Supreme

7    Court's free exercise jurisprudence, we assume that Congress, by

8    using it, planned to incorporate the cluster of ideas associated
9    with the Court's use of it.     See, e.g., Midrash Sephardi, Inc. v.

10   Town of Surfside, 366 F.3d 1214, 1226 (11th Cir. 2004), cert.

11   denied, 543 U.S. 1146 (2005) ("The Supreme Court's definition of

12   'substantial burden' within its free exercise cases is

13   instructive in determining what Congress understood 'substantial

14   burden' to mean in RLUIPA.").    But see San Jose Christian Coll.

15   v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)

16   (applying dictionary meanings to define substantial burden as

17   "something that is oppressive" and "considerable in quantity").
18   Further, RLUIPA's legislative history indicates that Congress

19   intended the term substantial burden to be interpreted "by

20   reference to Supreme Court jurisprudence."     146 Cong. Rec. S7774,

21   S7776 (2000).

22        Supreme Court precedents teach that a substantial burden on

23   religious exercise exists when an individual is required to

24   "choose between following the precepts of her religion and

25   forfeiting benefits, on the one hand, and abandoning one of the

26   precepts of her religion . . . on the other hand."     Sherbert v.

                                       12
1    Verner, 374 U.S. 398, 404 (1963).    A number of courts use this

2    standard as the starting point for determining what is a

3    substantial burden under RLUIPA.     See, e.g., Lovelace v. Lee, 472

4    F.3d 174, 187 (4th Cir. 2006) (For RLUIPA purposes, a substantial

5    burden is something that "puts substantial pressure on an

6    adherent to modify his behavior.").    In the context in which this

7    standard is typically applied -- for example, a state's denial of

8    unemployment compensation to a Jehovah's Witness who quit his job
9    because his religious beliefs prevented him from participating in

10   the production of war materials, see Thomas v. Review Bd. of Ind.

11   Employment Sec. Div., 450 U.S. 707, 709 (1981) -- it is not a

12   difficult standard to apply.   By denying benefits to Jehovah's

13   Witnesses who follow their beliefs, the state puts undue pressure

14   on the adherents to alter their behavior and to violate their

15   beliefs in order to obtain government benefits, thereby imposing

16   a substantial burden on religious exercise.

17        But in the context of land use, a religious institution is
18   not ordinarily faced with the same dilemma of choosing between

19   religious precepts and government benefits.    When a municipality

20   denies a religious institution the right to expand its

21   facilities, it is more difficult to speak of substantial pressure

22   to change religious behavior, because in light of the denial the

23   renovation simply cannot proceed.    Accordingly, when there has

24   been a denial of a religious institution's building application,

25   courts appropriately speak of government action that directly

26   coerces the religious institution to change its behavior, rather

                                     13
1    than government action that forces the religious entity to choose

2    between religious precepts and government benefits.   See, e.g.,

3    Midrash Sephardi, 366 F.3d at 1227 ("[A] substantial burden is

4    akin to significant pressure which directly coerces the religious

5    adherent to conform his or her behavior accordingly.").    Here,

6    WDS contends that the denial of its application in effect coerced

7    the day school to continue teaching in inadequate facilities,

8    thereby impeding its religious exercise.
9         Yet, when the denial of a religious institution's

10   application to build is not absolute, such would not necessarily

11   place substantial pressure on the institution to alter its

12   behavior, since it could just as easily file a second application

13   that remedies the problems in the first.   As a consequence, as we

14   said when this case was earlier before us, "rejection of a

15   submitted plan, while leaving open the possibility of approval of

16   a resubmission with modifications designed to address the cited

17   problems, is less likely to constitute a 'substantial burden'
18   than definitive rejection of the same plan, ruling out the

19   possibility of approval of a modified proposal."   Westchester Day

20   Sch., 386 F.3d at 188.   Of course, a conditional denial may

21   represent a substantial burden if the condition itself is a

22   burden on free exercise, the required modifications are

23   economically unfeasible, or where a zoning board's stated

24   willingness to consider a modified plan is disingenuous.     Id. at

25   188 n.3.   However, in most cases, whether the denial of the

26   application was absolute is important; if there is a reasonable

                                     14
1    opportunity for the institution to submit a modified application,

2    the denial does not place substantial pressure on it to change

3    its behavior and thus does not constitute a substantial burden on

4    the free exercise of religion.

5         We recognize further that where the denial of an

6    institution's application to build will have minimal impact on

7    the institution's religious exercise, it does not constitute a

8    substantial burden, even when the denial is definitive.      There
9    must exist a close nexus between the coerced or impeded conduct

10   and the institution's religious exercise for such conduct to be a

11   substantial burden on that religious exercise.       Imagine, for

12   example, a situation where a school could easily rearrange

13   existing classrooms to meet its religious needs in the face of a

14   rejected application to renovate.     In such case, the denial would

15   not substantially threaten the institution's religious exercise,

16   and there would be no substantial burden, even though the school

17   was refused the opportunity to expand its facilities.
18        Note, however, that a burden need not be found insuperable

19   to be held substantial.   See Saints Constantine and Helen Greek

20   Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 901

21   (7th Cir. 2005).   When the school has no ready alternatives, or

22   where the alternatives require substantial "delay, uncertainty,

23   and expense," a complete denial of the school's application might

24   be indicative of a substantial burden.     See id.

25        We are, of course, mindful that the Supreme Court's free

26   exercise jurisprudence signals caution in using effect alone to

                                      15
1    determine substantial burden.     See generally Lyng v. Nw. Indian

2    Cemetery Protective Ass'n, 485 U.S. 439, 451 (1988) (observing

3    that the "line between unconstitutional prohibitions on the free

4    exercise of religion and the legitimate conduct by government of

5    its own affairs . . . cannot depend on measuring the effects of a

6    governmental action on a religious objector's spiritual

7    development" (emphasis added)).    This is because an effect

8    focused analysis may run up against the reality that "[t]he
9    freedom asserted by [some may] bring them into collision with

10   [the] rights asserted by" others and that "[i]t is such conflicts

11   which most frequently require intervention of the State to

12   determine where the rights of one end and those of another

13   begin."   Braunfeld v. Brown, 366 U.S. 599, 604 (1961).

14   Accordingly, the Supreme Court has held that generally applicable

15   burdens, neutrally imposed, are not "substantial."    See Jimmy

16   Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 389-91

17   (1990).
18        This reasoning helps to explain why courts confronting free

19   exercise challenges to zoning restrictions rarely find the

20   substantial burden test satisfied even when the resulting effect

21   is to completely prohibit a religious congregation from building

22   a church on its own land.   See Christian Gospel Church, Inc. v.

23   City and County of S.F., 896 F.2d 1221, 1224 (9th Cir. 1990);

24   Messiah Baptist Church v. County of Jefferson, 859 F.2d 820, 824-

25   25 (10th Cir. 1988); Grosz v. City of Miami Beach, 721 F.2d 729,

26   739-40 (11th Cir. 1983); Lakewood, Ohio Congregation of Jehovah's

                                       16
1    Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 304 (6th Cir.

2    1983); cf. Islamic Ctr. of Miss., Inc. v. City of Starkville, 840

3    F.2d 293, 302-03 (5th Cir. 1988) (finding substantial burden

4    where city intentionally discriminated against Muslims and

5    ordinance "leaves no practical alternatives for establishing a

6    mosque in the city limits").

7         A number of our sister circuits have applied this same

8    reasoning in construing RLUIPA's substantial burden requirement.
9    For example, the Seventh Circuit has held that land use

10   conditions do not constitute a substantial burden under RLUIPA

11   where they are "neutral and traceable to municipal land planning

12   goals" and where there is no evidence that government actions

13   were taken "because [plaintiff] is a religious institution."

14   Vision Church v. Vill. of Long Grove, 468 F.3d 975, 998-99 (7th

15   Cir. 2006).    Similarly, the Ninth Circuit has held that no

16   substantial burden was imposed, even where an ordinance "rendered

17   [plaintiff] unable to provide education and/or worship" on its
18   property, because the plaintiff was not "precluded from using

19   other sites within the city" and because "there [is no] evidence

20   that the City would not impose the same requirements on any other

21   entity."    San Jose Christian Coll., 360 F.3d at 1035.   The

22   Eleventh Circuit has also ruled that "reasonable 'run of the

23   mill' zoning considerations do not constitute substantial

24   burdens."     Midrash Sephardi, 366 F.3d at 1227-28 & n.11.

25        The same reasoning that precludes a religious organization

26   from demonstrating substantial burden in the neutral application

                                       17
1    of legitimate land use restrictions may, in fact, support a

2    substantial burden claim where land use restrictions are imposed

3    on the religious institution arbitrarily, capriciously, or

4    unlawfully.   The arbitrary application of laws to religious

5    organizations may reflect bias or discrimination against

6    religion.   Thus, in Saints Constantine and Helen, the Seventh

7    Circuit concluded that a substantial burden was demonstrated in

8    circumstances where the "decision maker cannot justify" the
9    challenged ruling and where "repeated legal errors by the City's

10   officials casts doubt on their good faith."   396 F.3d at 899-01.

11   Similarly, in Guru Nanak Sikh Soc'y v. County of Sutter, 456 F.3d

12   978, 989-91 (9th Cir. 2006), the Ninth Circuit held that a

13   substantial burden was shown where government officials

14   "inconsistently applied" specific policies and disregarded

15   relevant findings "without explanation."   Where the arbitrary,

16   capricious, or unlawful nature of a defendant's challenged action

17   suggests that a religious institution received less than even-
18   handed treatment, the application of RLUIPA's substantial burden

19   provision usefully "backstops the explicit prohibition of

20   religious discrimination in the later section of the Act."

21   Saints Constantine and Helen, 396 F.3d at 900.

22        Accordingly, we deem it relevant to the evaluation of WDS's

23   particular substantial burden claim that the district court

24   expressly found that the zoning board's denial of the school's

25   application was "arbitrary and capricious under New York law

26   because the purported justifications set forth in the Resolution

                                     18
1    do not bear the necessary substantial relation to public health,

2    safety or welfare," and the zoning board's findings are not

3    supported by substantial evidence.   Westchester Day Sch., 417 F.

4    Supp. 2d at 564.   Although the Village disputes this finding, we

5    conclude that it is amply supported by both the law and the

6    record evidence.

7         As the New York Court of Appeals has made plain, a zoning

8    board decision based on grounds "unrelated to the public's
9    health, safety or welfare" is "beyond the scope of the

10   municipality's police power, and, thus, impermissible."      Cornell

11   Univ. v. Bagnardi, 68 NY2d 583, 597 (1986).    Even when a board

12   considers permissible factors, the law demands that its analysis

13   be supported by substantial evidence.     Twin County Recycling

14   Corp. v. Yevoli, 90 NY2d 1000, 1002 (1997) (mem.).    Moreover,

15   under New York law, a municipality may not demand that a

16   religious institution show that "no ill effects will result from

17   the proposed use in order to receive a special permit," because
18   such a requirement "fails to recognize that educational and

19   religious uses ordinarily have inherent beneficial effects that

20   must be weighed against their potential for harming the

21   community."   Bagnardi, 68 NY2d at 597.

22        The district court reasonably concluded that the ZBA failed

23   to comply with these legal mandates in several respects.     For

24   example, the zoning board denied WDS's application based, in

25   part, on an accusation that the school made "a willful attempt"

26   to mislead the zoning board.   In fact, the accusation was

                                     19
1    unsupported by the evidence and based on the zoning board's own

2    error with respect to certain relevant facts.      Westchester Day

3    Sch., 417 F. Supp. 2d at 531, 571.     The ZBA's allegations of

4    deficiencies in the school's traffic study were also unsupported

5    by the evidence before it.    See id. at 564-66.    The concern about

6    lack of adequate parking was based on the zoning board's own

7    miscalculation.    See id. at 567.    Indeed, the ZBA impermissibly

8    based its decision on speculation about future expansion, without
9    a basis in fact.    See id. at 568.    In each of these instances,

10   the ZBA's assumptions were not only wrong; they were unsupported

11   by its own experts.    See id. at 532, 566, 567, 569.   Indeed, the

12   resolution drafted by the ZBA's consultants, which would have

13   approved WDS's application subject to conditions addressing

14   various ZBA concerns, was never circulated to the whole zoning

15   board before it issued the challenged denial.      See id. at 569.

16   In sum, the record convincingly demonstrates that the zoning

17   decision in this case was characterized not simply by the
18   occasional errors that can attend the task of government but by

19   an arbitrary blindness to the facts.     As the district court

20   correctly concluded, such a zoning ruling fails to comply with

21   New York law.

22        While the arbitrary and unlawful nature of the ZBA denial of

23   WDS's application supports WDS's claim that it has sustained a

24   substantial burden, two other factors drawn from our earlier

25   discussion must be considered in reaching such a burden

26   determination:    (1) whether there are quick, reliable, and

                                      20
1    financially feasible alternatives WDS may utilize to meet its

2    religious needs absent its obtaining the construction permit; and

3    (2) whether the denial was conditional.    These two considerations

4    matter for the same reason:   when an institution has a ready

5    alternative -- be it an entirely different plan to meet the same

6    needs or the opportunity to try again in line with a zoning

7    board's recommendations -- its religious exercise has not been

8    substantially burdened.   The plaintiff has the burden of
9    persuasion with respect to both factors.    See § 2000cc-2 (putting

10   burden on plaintiff to prove that government's action

11   substantially burdened plaintiff's exercise of religion).

12        Here, the school could not have met its needs simply by

13   reallocating space within its existing buildings.   The

14   architectural firm it hired determined that certain essential

15   facilities would have to be incorporated into a new building,

16   because not enough space remained in the existing buildings to

17   accommodate the school's expanding needs.   Further, experts hired
18   by WDS determined that the planned location for Gordon Hall was

19   the only site that would accommodate the new building.    The

20   answer to the first factor is there were not only no quick,

21   reliable, or economically feasible alternatives, there were no

22   alternatives at all.

23        In examining the second factor -- whether the Village's

24   denial of the school's application was conditional or absolute --

25   we look at several matters:   (a) whether the ZBA classified the

26   denial as complete, (b) whether any required modification would

                                     21
1    itself constitute a burden on religious exercise; (c) whether

2    cure of the problems noted by the ZBA would impose so great an

3    economic burden as to make amendment unworkable; and (d) whether

4    the ZBA's stated willingness to consider a modified proposal was

5    disingenuous.    See Westchester Day Sch., 386 F.3d at 188 n.3.

6         For any of the following reasons, we believe the denial of

7    WDS's application was absolute.    First, we observe that the ZBA

8    could have approved the application subject to conditions
9    intended to mitigate adverse effects on public health, safety,

10   and welfare.    Yet the ZBA chose instead to deny the application

11   in its entirety.   It is evident that in the eyes of the ZBA's

12   members, the denial was final since all of them discarded their

13   notes after voting on the application.   Second, were WDS to

14   prepare a modified proposal, it would have to begin the

15   application process anew.   This would have imposed so great an

16   economic burden as to make the option unworkable.   Third, the

17   district court determined that ZBA members were not credible when
18   they testified they would give reasonable consideration to

19   another application by WDS.   When the board's expressed

20   willingness to consider a modified proposal is insincere, we do

21   not require an institution to file a modified proposal before

22   determining that its religious exercise has been substantially

23   burdened.

24        Consequently, we are persuaded that WDS has satisfied its

25   burden in proving that there was no viable alternative to achieve

26   its objectives, and we conclude that WDS's religious exercise was

                                       22
1    substantially burdened by the ZBA's arbitrary and unlawful denial

2    of its application.

3                   C.   Least Restrictive Means to Further a
4                            Compelling State Interest
5
6         Under RLUIPA, once a religious institution has demonstrated

7    that its religious exercise has been substantially burdened, the

8    burden of proof shifts to the municipality to prove it acted in

9    furtherance of a compelling governmental interest and that its
10   action is the least restrictive means of furthering that

11   interest.   § 2000cc-2(b).    Compelling state interests are

12   "interests of the highest order."       Church of the Lukumi Babalu

13   Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).        The

14   Village claims that it has a compelling interest in enforcing

15   zoning regulations and ensuring residents' safety through traffic

16   regulations.    However, it must show a compelling interest in

17   imposing the burden on religious exercise in the particular case

18   at hand, not a compelling interest in general.       See, e.g.,

19   Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546
20   U.S. 418, 432 (2006) ("Under the more focused inquiry required by

21   RFRA and the compelling interest test, the Government's mere

22   invocation of the general characteristics of Schedule I

23   substances . . . cannot carry the day. . . . [T]here is no

24   indication that Congress . . . considered the harms posed by the

25   particular use at issue here . . . ." (emphases added)).

26        The district court's findings reveal the ZBA's stated

27   reasons for denying the application were not substantiated by


                                        23
1    evidence in the record before it.    The court stated the

2    application was denied not because of a compelling governmental

3    interest that would adversely impact public health, safety, or

4    welfare, but was denied because of undue deference to the

5    opposition of a small group of neighbors.

6         Further, even were we to determine that there was a

7    compelling state interest involved, the Village did not use the

8    least restrictive means available to achieve that interest.    The
9    ZBA had the opportunity to approve the application subject to

10   conditions, but refused to consider doing so.

11                   III   Constitutionality of RLUIPA

12        Given our conclusion that the ZBA violated RLUIPA by denying

13   WDS's application, the question remains whether RLUIPA was

14   constitutionally applied.   The Village challenges RLUIPA on the

15   grounds that it exceeds Congress' Fourteenth Amendment (§ 5) and

16   Commerce Clause powers and that the Act is unconstitutional under

17   the Tenth Amendment and the Establishment Clause.
18        RLUIPA states that it only applies when (1) "the substantial

19   burden is imposed in a program or activity that receives Federal

20   financial assistance . . . ," (2) "the substantial burden

21   affects, or removal of that substantial burden would affect,

22   commerce with foreign nations, among the several States, or with

23   Indian tribes . . . ," or (3) "the substantial burden is imposed

24   in the implementation of a land use regulation or system of land

25   use regulations, under which a government makes, or has in place

26   formal or informal procedures or practices that permit the

                                     24
1    government to make, individualized assessments of the proposed

2    uses for the property involved."         § 2000cc(a)(2).

3         By limiting RLUIPA's scope to cases that present one of

4    these jurisdictional nexuses, Congress alternatively grounded

5    RLUIPA, depending on the facts of a particular case, in the

6    Spending Clause, the Commerce Clause, and § 5 of the Fourteenth

7    Amendment.    There is no claim here that the ZBA receives federal

8    financial assistance, but WDS does assert both that the
9    substantial burden on its religious exercise affects interstate

10   commerce and that it is imposed through formal procedures that

11   permit the government to make individualized assessments of the

12   proposed uses for the property involved.         Thus, we must examine

13   whether RLUIPA is constitutionally applied under Congress'

14   Commerce Clause power or whether it is constitutionally applied

15   under Congress' power to create causes of action vindicating

16   Fourteenth Amendment rights.

17                A.    Congress' Power Under the Commerce Clause
18        The Constitution grants Congress the power "[t]o regulate

19   Commerce . . . among the several States."         U.S. Const. art. I,

20   § 8, cl. 3.       As noted above, Congress made explicit reference to

21   this grant by limiting the application of RLUIPA to cases in

22   which, inter alia, "the substantial burden affects, or removal of

23   that substantial burden would affect, commerce . . . among the

24   several States."      § 2000cc(a)(2)(B).

25        As the Supreme Court has made plain, the satisfaction of

26   such a jurisdictional element -- common in both civil and

                                         25
1    criminal cases -- is sufficient to validate the exercise of

2    congressional power because an interstate commerce nexus must be

3    demonstrated in each case for the statute in question to operate.

4    See United States v. Morrison, 529 U.S. 598, 611-12 (2000) ("Such

5    a jurisdictional element may establish that the enactment is in

6    pursuance of Congress' regulation of interstate commerce.");

7    United States v. Lopez, 514 U.S. 549, 561 (1995) (noting that

8    statute in question "contains no jurisdictional element which
9    would ensure, through case-by-case inquiry, that the [activity]

10   in question affects interstate commerce").    Following suit, this

11   Court has consistently upheld statutes under the Commerce Clause

12   on the basis of jurisdictional elements.     See, e.g., United

13   States v. Griffith, 284 F.3d 338, 346-48 (2d Cir. 2002); United

14   States v. Santiago, 238 F.3d 213, 216 (2d Cir. 2001) (per

15   curiam).   Consistent with this precedent, we now hold that, where

16   the relevant jurisdictional element is satisfied, RLUIPA

17   constitutes a valid exercise of congressional power under the
18   Commerce Clause.   See, e.g., United States v. Maui County, 298 F.

19   Supp. 2d 1010, 1015 (D. Haw. 2003) (reaching same conclusion);

20   Freedom Baptist Church v. Twp. of Middletown, 204 F. Supp. 2d

21   857, 866-68 (E.D. Pa. 2002) (same).

22        In this case, the district court found the jurisdictional

23   element satisfied by evidence that the construction of Gordon

24   Hall, a 44,000 square-foot building with an estimated cost of

25   $9 million, will affect interstate commerce.    We identify no

26   error in this conclusion.   As we have recognized, the evidence

                                     26
1    need only demonstrate a minimal effect on commerce to satisfy the

2    jurisdictional element.        See Griffith, 284 F.3d at 347.    Further,

3    we have expressly noted that commercial building construction is

4    activity affecting interstate commerce.        See Reich v.

5    Mashantucket Sand & Gravel, 95 F.3d 174, 181 (2d Cir. 1996)

6    ("[C]onstruction efforts . . . have a direct effect on interstate

7    commerce.").

8         In light of our determination that RLUIPA's application in
9    the present case is constitutional under the Commerce Clause,

10   there is no need to consider or decide whether its application

11   could be grounded alternatively in § 5 of the Fourteenth

12   Amendment.

13                             B.    Tenth Amendment

14        The Tenth Amendment provides that "the powers not delegated

15   to the United States by the Constitution, nor prohibited by it to

16   the States, are reserved to the States respectively, or the

17   people."   As the Supreme Court has explained, "[i]f a power is
18   delegated to Congress in the Constitution, the Tenth Amendment

19   expressly disclaims any reservation of that power to the States."

20   New York v. United States, 505 U.S. 144, 156 (1992).          The power

21   to regulate interstate commerce was delegated to Congress in the

22   Constitution.   Nonetheless, in New York, the Court said that even

23   in situations where Congress has the power to pass laws requiring

24   or prohibiting certain acts, it has no power "directly to compel

25   the States to require or prohibit those acts."        Id. at 166.    We

26   do not believe RLUIPA directly compels states to require or

                                          27
1    prohibit any particular acts.    Instead, RLUIPA leaves it to each

2    state to enact and enforce land use regulations as it deems

3    appropriate so long as the state does not substantially burden

4    religious exercise in the absence of a compelling interest

5    achieved by the least restrictive means.

6                         C.    Establishment Clause

7          In determining whether a particular law violates the

8    Establishment Clause, which provides in the First Amendment that
9    "Congress shall make no law respecting an establishment of

10   religion," U.S. Const. amend. I, we examine the government

11   conduct at issue under the three-prong analysis articulated by

12   the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971).

13   Under Lemon, government action that interacts with religion must:

14   (1) have a secular purpose, (2) have a principal effect that

15   neither advances nor inhibits religion, and (3) not bring about

16   an excessive government entanglement with religion.    Id. at 612-

17   13.   RLUIPA's land use provisions plainly have a secular purpose,
18   that is, the same secular purpose that RLUIPA's institutionalized

19   persons provisions have:    to lift government-created burdens on

20   private religious exercise.     See Cutter v. Wilkinson, 544 U.S.

21   709, 720 (2005).   As the Supreme Court explained in Cutter, such

22   purpose is "compatible with the Establishment Clause."    Id.

23         Similarly, the principal or primary effect of RLUIPA's land

24   use provisions neither advances nor inhibits religion.    As the

25   Supreme Court has explained, a law produces forbidden effects

26   under Lemon if "the government itself has advanced religion

                                       28
1    through its own activities and influence."       Corp. of Presiding

2    Bishop of Church of Jesus Christ of Latter-day Saints v. Amos,

3    483 U.S. 327, 337 (1987).    Under RLUIPA, the government itself

4    does not advance religion; all RLUIPA does is permit religious

5    practitioners the free exercise of their religious beliefs

6    without being burdened unnecessarily by the government.

7         Finally, RLUIPA's land use provisions do not foster an

8    excessive government entanglement with religion.      Although the
9    Village contends that RLUIPA fails every part of the Lemon test,

10   it makes no argument that the land use provisions foster

11   intolerable levels of interaction between church and state or the

12   continuing involvement of one in the affairs of the other.

13   Agostini v. Felton, 521 U.S. 203, 232-33 (1997); Walz v. Tax

14   Comm'n of N.Y., 397 U.S. 664, 674-75 (1970).      Further,

15   entanglement becomes excessive only when it advances or inhibits

16   religion.   Agostini, 521 U.S. at 233 (treating entanglement prong

17   as aspect of effects prong under Lemon test); Skoros v. City of
18   N.Y., 437 F.3d 1, 36 (2d Cir. 2006).      RLUIPA cannot be said to

19   advance religion simply by requiring that states not discriminate

20   against or among religious institutions.       See Midrash Sephardi,

21   366 F.3d at 1241.

22        Accordingly, we find that RLUIPA's land use provisions do

23   not violate the Establishment Clause.

24                               IV   Jury Waiver

25        We turn finally to the question of whether defendant waived

26   its right to trial by jury.      Under Federal Rule of Civil

                                        29
1    Procedure 38(b), "[a]ny party may demand a trial by jury of any

2    issue triable of right by a jury."    Failure to serve a demand

3    constitutes a waiver of that right.   Fed. R. Civ. P. 38(d).

4    Here, the Village initially failed to demand a jury trial.     A

5    litigant who has waived a jury may nonetheless demand one with

6    respect to new issues raised by later pleadings, unless the new

7    issues are simply "artful rephrasings" of existing issues.      See

8    Rosen v. Dick, 639 F.2d 82, 94 (2d Cir. 1980).    When the same
9    parties are the litigants before and after an amended pleading,

10   we are unlikely to find a new issue has been raised.    Id. at 96.

11   An amended complaint asserting new theories of recovery, based on

12   the same facts as the original complaint, will not renew a

13   defendant's right to a jury trial when that right was waived with

14   respect to the original complaint.    8 James Wm. Moore, Moore's

15   Federal Practice § 38.50[8][d] (3d ed. 2006).

16        The Village declares its amended answer -- filed a year and

17   a half after commencement of the suit -- raised new issues, and
18   that it therefore had a right to demand a new trial on those

19   issues.   But its amended answer was identical to its initial

20   answer except that it added a number of affirmative defenses not

21   asserted earlier.   The new affirmative defenses alleged that

22   defendant's denial of WDS's application was not a complete

23   denial, that it did not substantially burden WDS's free exercise

24   of religion, that the denial was based on compelling state

25   interests, and that RLUIPA if applied to WDS's activities is

26   unconstitutional.   By denying plaintiff's contrary allegations,

                                     30
1    the defendant had already raised the first three issues in its

2    initial answer.

3         We are left with the Village's affirmative defense that

4    RLUIPA if applied to WDS's activities would be unconstitutional.

5    But the defendant was on notice that the court would be deciding

6    all issues relating to the general dispute.   The Village should

7    reasonably have known at the time it initially waived its jury

8    trial right that the constitutionality of RLUIPA could constitute
9    a part of the dispute.   Like an amended complaint that simply

10   asserts new theories of recovery, an amended answer that asserts

11   new defense theories based on the same facts does not reestablish

12   the defendant's right to demand a jury trial.    Hence, the

13   district court correctly ruled the Village had not revived its

14   right to such under Rule 38(b).

15        The Village also insists that the district court abused its

16   discretion by not ordering a jury trial under Rule 39(b).     Rule

17   39(b) provides that "notwithstanding the failure of a party to
18   demand a jury . . . , the court in its discretion upon motion may

19   order a trial by a jury of any or all issues."    We have ruled

20   that "inadvertence in failing to make a timely jury demand does

21   not warrant a favorable exercise of discretion under Rule 39(b)."

22   Noonan v. Cunard S.S. Co., 375 F.2d 69, 70 (2d Cir. 1967)

23   (Friendly, J.); see also Higgins v. Boeing Co., 526 F.2d 1004,

24   1006 n.2 (2d Cir. 1975) (per curiam) ("[D]espite the

25   discretionary language of Rule 39(b) some cause beyond mere

26   inadvertence must be shown to permit granting an untimely

                                       31
1    demand.").      Here, the Village admits that it neglected to demand

2    a jury in June 2003.      Accordingly, it was not an abuse of

3    discretion for the district court to deny the Village's 2004

4    request for a favorable exercise of its discretion under Rule

5    39(b).

6              V    All Writs Act and Supplemental State Law Claims

7         After determining the Village violated RLUIPA, the district

8    court ordered the ZBA immediately and unconditionally to issue
9    WDS's special permit modification.       Such relief is proper under

10   RLUIPA.       See § 2000cc-2(a) (parties asserting RLUIPA claims may

11   obtain "appropriate relief" against a government).      As a

12   consequence, there is no need for us to examine the alternative

13   bases the district court provided to justify this relief.

14                                   CONCLUSION

15        Accordingly, for the foregoing reasons, the judgment of the

16   district court is affirmed.




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