     10-3634-cv
     Fortress Bible Church v. Feiner
 1                          UNITED STATES COURT OF APPEALS

 2                               FOR THE SECOND CIRCUIT

 3

 4                                     August Term 2011

 5     (Argued: September 23, 2011                Decided: September 24, 2012)

 6                                Docket No. 10-3634-cv

 7   -----------------------------------------------------x
 8
 9   FORTRESS BIBLE CHURCH, REVEREND DENNIS G. KARAMAN,
10
11                Plaintiffs-Appellees,
12
13                             -- v. --
14
15   PAUL J. FEINER, individually & in his official capacity as the
16   Supervisor of the Town of Greenburgh, SONJA BROWN, in her
17   official capacity as Councilwoman for the Town of Greenburgh,
18   KEVIN MORGAN, in his official capacity as Councilman for the Town
19   of Greenburgh, DIANA JUETTNER, in her official capacity as
20   Councilwoman for the Town of Greenburgh, FRANCIS SHEEHAN, in his
21   official capacity as Councilman for the Town of Greenburgh, TOWN
22   BOARD OF GREENBURGH, THE TOWN BOARD OF THE TOWN OF GREENBURGH,
23   TOWN OF GREENBURGH, THE TOWN OF GREENBURGH,
24
25                Defendants-Appellants.
26
27
28   -----------------------------------------------------x
29
30   B e f o r e :       WALKER, CHIN and LOHIER, Circuit Judges.
31         Defendants-appellants Paul J. Feiner, Sonja Brown, Kevin

32   Morgan, Diana Juettner, Francis Sheehan, Town Board of

33   Greenburgh, the Town Board of the Town of Greenburgh, and the

34   Town of Greenburgh, appeal from a judgment of the United States

35   District Court for the Southern District of New York (Stephen C.
                                              1
 1   Robinson, Judge), holding that they had violated plaintiffs-

 2   appellees’ rights under the Religious Land Use and

 3   Institutionalized Persons Act as well as the First Amendment, the

 4   Equal Protection Clause, and New York constitutional and

 5   statutory law.   We conclude that the district court correctly

 6   applied the law and discern no clear error in its factual

 7   findings.   AFFIRMED.

 8                                  ROBERT A. SPOLZINO (Joanna Topping,
 9                                  Cathleen Giannetta, on the brief),
10                                  Wilson, Elser, Moskowitz, Edelman &
11                                  Dicker LLP, White Plains, New York,
12                                  for Defendants-Appellants.
13
14                                  DONNA E. FROSCO, Keane & Beane,
15                                  P.C., White Plains, New York, for
16                                  Plaintiffs-Appellees.
17
18
19   JOHN M. WALKER, JR., Circuit Judge:

20        This appeal concerns a longstanding land-use dispute between

21   plaintiff-appellee Fortress Bible Church (“the Church”) and

22   defendant-appellant Town of Greenburgh, New York (“the Town”)

23   over the Church’s plan to build a worship facility and school on

24   land that it owned within the Town.   After a series of

25   contentious administrative proceedings effectively preventing the

26   Church’s project from going forward, the Church, along with its

27   pastor, plaintiff-appellee Reverend Dennis G. Karaman

28   (“Karaman”), sued the Town, its Town Board (“the Board”), and

29   several Board members (collectively “the Town defendants”) in the

                                      2
 1   United States District Court for the Southern District of New

 2   York (Stephen C. Robinson, Judge).    The Church alleged violations

 3   of the Religious Land Use and Institutionalized Persons Act of

 4   2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., as well as of its

 5   constitutional Free Exercise and Equal Protection rights, and

 6   Article 78 of New York’s Civil Procedure Law.   After a 26-day

 7   bench trial, the district court entered judgment for the

 8   plaintiffs on all counts.   On appeal, the Town makes six

 9   contentions:   (1) RLUIPA is by its terms inapplicable to the

10   environmental quality review process employed by the Town to

11   reject the proposal, (2) there was insufficient evidence that the

12   defendants had imposed a substantial burden on plaintiffs’

13   religious exercise under RLUIPA, (3) plaintiffs’ class-of-one

14   Equal Protection claim is not viable because they have not

15   alleged a single comparator similarly situated in all respects,

16   (4) plaintiffs’ Free Exercise rights were not violated, (5) the

17   Town did not violate Article 78, and (6) the district court

18   lacked the authority to order the Town Zoning Board, a non-party,

19   to take any action with regard to the Church.   We find all of

20   these contentions to be without merit and therefore AFFIRM the

21   decision of the district court.




                                       3
 1                                 BACKGROUND


 2   Facts

 3           In reviewing a judgment after a bench trial, we accept the

 4   district court’s factual findings unless they are clearly

 5   erroneous.    See Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d

 6   33, 38-39 (2d Cir. 2009).    Because we do not identify error in

 7   any of the district court’s findings that are pertinent to this

 8   appeal, we set forth the relevant facts as found by the district

 9   court.1

10   I. The Church’s Proposal

11           Plaintiff Fortress Bible Church is a Pentecostal church

12   established in the 1940s.    It is a tax-exempt religious

13   organization with approximately 175 members.    In addition to its

14   worship activities, the Church runs Fortress Christian Academy

15   (“the School”), a private Christian school.    Plaintiff Dennis G.

16   Karaman is the Church’s pastor.

17           The Church is currently located in Mount Vernon, New York.

18   Its Mount Vernon facilities, however, are not adequate to

19   accommodate its religious practice.    In 1998, the Church

20   purchased a parcel of land on Pomander Drive in the Town of

21   Greenburgh, New York, with the intention of building a larger

22   facility.    This parcel (“the Pomander Drive property”) was vacant
     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
 1   except for a small residence on one edge.   The surrounding

 2   neighborhood includes residences, business offices, churches, and

 3   major roads.   Prior to purchasing the property, Karaman advised

 4   the Town of his intent to build a church and school on the

 5   grounds, and stated that if the property was not suitable for

 6   this purpose, he would not purchase it.

 7        The Church sought to build a single structure on the

 8   Pomander Drive property that would house a worship facility and a

 9   school.   The proposed church would accommodate 500 people and the

10   school would accommodate 150 students.    The structure would have

11   125 parking spaces and occupy 1.45 acres of the 6.53 acre plot.

12   To construct its proposed building, the Church required three

13   discretionary land use approvals from the Town: (1) site plan

14   approval from the Board, (2) a waiver of the landscaped parking

15   island requirement, and (3) a variance from the Town’s Zoning

16   Board of Appeals (“the Zoning Board”) to allow the building to be

17   located closer to one side of the property.   Because the Church’s

18   proposal required discretionary government approval, it triggered

19   New York’s State Environmental Quality Review Act (“SEQRA”), N.Y.

20   Comp. Codes R. & Regs. Tit. 6, §§ 617.2(b), 617.3(a) (requiring

21   environmental review process whenever government takes certain

22   discretionary action).

23



                                      5
 1   II. The SEQRA Review Process

 2        The SEQRA review process entails several stages.   First, the

 3   “lead agency” (in this case, the Board) must make an initial

 4   determination of environmental significance.   6 N.Y.C.R.R. §

 5   617.6.   If the environmental impact of the proposal is small, the

 6   lead agency can issue a negative declaration, meaning there is no

 7   potential for significant adverse environmental impact, or a

 8   conditioned negative declaration, meaning that the potential for

 9   adverse environmental impact can be mitigated by the agency.     §

10   617.7.   Alternately, if the lead agency determines that the

11   proposal has the potential for at least one significant adverse

12   environmental impact, the lead agency must issue a “positive

13   declaration” and require the applicant to submit an Environmental

14   Impact Statement (“EIS”) evaluating the environmental impact of

15   the project.   § 617.7.   Preparation of an EIS involves several

16   steps.   The applicant prepares a scoping document (outlining the

17   scope of the environmental impact), a draft EIS (“DEIS”), and a

18   final EIS (“FEIS”), and must seek feedback at each stage from the

19   public and approval from the lead agency.   §§ 617.8, 617.9.

20        The Church submitted its initial proposal on or about

21   November 24, 1998.   On January 27, 1999, the Church and its

22   consultants appeared at a Board work session to discuss the

23   application.   The Board requested that the Church examine the

24   project’s impact on local traffic and access to the property.      In
                                       6
 1   response, the Church hired consultants to perform a traffic study

 2   of the area.   It also sought feedback from the New York State

 3   Department of Transportation (“NYSDOT”) and nearby residents.    On

 4   or about January 17, 2000, the Church submitted a revised

 5   proposal which included a comprehensive traffic study and

 6   additional information about potential environmental impacts.

 7   After reviewing the proposal, Anthony Russo (“Russo”), the Town

 8   Planning Commissioner, believed that the Church had adequately

 9   mitigated the Town’s traffic concerns and advised the Board that

10   it could issue a Conditioned Negative Declaration.

11        On July 11, 2000, Karaman and other Church representatives

12   attended a work session with the Board.   At the meeting,

13   defendant Town Supervisor Paul Feiner (“Feiner”) stated that he

14   was concerned with the Church’s tax-exempt status and asked it to

15   donate a fire truck or make some other payment in lieu of taxes.

16   Other Board members commented to the effect that they did not

17   want the property to be used as a church.    The Church declined to

18   donate a fire truck or make any other payment in lieu of taxes.

19   On July 19, 2000, the Board issued a positive declaration,

20   triggering the full SEQRA review process.

21        Over the next several years, the Church provided all of the

22   information required by the SEQRA process.   It produced a scoping

23   document followed by a DEIS, which the Town accepted as complete

24   on October 24, 2001.   The Town held hearings on the proposal on
                                      7
 1   December 12, 2001, and January 9, 2002.   During this comment

 2   period, NYSDOT submitted comments indicating its approval of the

 3   Church’s traffic study.   Despite the Church’s efforts, however,

 4   the Town continued to resist the project.   On May 3, 2001,

 5   Karaman met with Feiner to discuss the review process.   Karaman

 6   asked what he could do to move the process along, and Feiner

 7   responded that the Church could agree to make yearly financial

 8   contributions to the fire department.   Another Board member

 9   suggested to Russo on multiple occasions that he should “stop” or

10   “kill” the project.   In early 2002, the Town replaced Russo with

11   a new Planning Commissioner and retained consultants to analyze

12   the Church’s proposal.

13        On April 5, 2002, after further consultation with Town

14   officials, the Church submitted a proposed FEIS.   The Town

15   refused to discuss the project with the Church and refused to

16   move forward with the review process.   Despite having accepted

17   the DEIS and scoping document as complete, which would normally

18   finalize the universe of issues relevant to SEQRA review, the

19   Town began to request new information and raise new issues for

20   the Church to address.    The Church provided the requested

21   information and attempted to meet the Town’s demands.    During the

22   summer of 2002, the Town stopped the review process altogether

23   due to the Church’s refusal to reimburse it for certain disputed

24   fees the Town had incurred during the process.   On January 17,
                                       8
 1   2003, the Church sent a letter to the Town summarizing its view

 2   that the Town had inappropriately delayed its building

 3   application despite its consistent efforts to meet the Town’s

 4   requests.

 5        On February 25, 2003, the Town took the unusual step of

 6   taking over preparation of the FEIS.   It did not notify the

 7   Church that it had done so until March 17, 2003.    The Town edited

 8   the FEIS to include a number of additional problems with the

 9   proposal, and did not consider the Church’s input addressing

10   those problems.

11        On June 11, 2003, the Church instituted this action.      It

12   alleged violations of RLUIPA and its rights under the First and

13   Fourteenth Amendments, as well as New York law, and sought an

14   order compelling the Town to complete SEQRA review and approve

15   the project.

16        On April 14, 2004, the Town denied the Church’s

17   application.2   In its findings statement the town stated its

18   primary reasons for rejecting the application as:   (1) violation

19   of a recently enacted “steep slope” zoning ordinance; (2) stress

20   on the police and fire departments; (3) retaining walls that

21   constituted an attractive nuisance; and (4) traffic and parking

22   problems.

     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
 1   III. The District Court Decision

 2        The district court conducted a bench trial over 26 non-

 3   consecutive days between October 2006 and March 2007.    On August

 4   11, 2010, in a lengthy opinion containing 622 factual findings,

 5   the district court found that the Town had violated the Church’s

 6   rights under RLUIPA, the Free Exercise Clauses of the First

 7   Amendment and New York Constitution, the Equal Protection Clauses

 8   of the Fourteenth Amendment and New York Constitution, and

 9   Article 78 of New York’s Civil Procedure Law.     Fortress Bible

10   Church v. Feiner, 734 F. Supp. 2d 409, 522-23 (S.D.N.Y. 2010).

11   It found that the Town had acted in bad faith and had used the

12   SEQRA review process illegitimately as a way to block the

13   Church’s proposal.   It therefore concluded that the Town had

14   substantially burdened the Church by preventing it from moving to

15   an adequate facility, resulting in a violation of RLUIPA and the

16   Free Exercise Clause.   Id. at 496-508, 511-12.    The district

17   court also found an Equal Protection violation based on a class-

18   of-one theory.   Id. at 513-17.    While acknowledging that the

19   Church had not presented a single comparator similarly situated

20   in all respects, it found the Church’s comparators to be

21   sufficient with regard to each of the discrete issues cited by

22   the Town.   Additionally, the district court found that Town

23   staff, including at least one Board member, had intentionally



                                       10
 1   destroyed discoverable evidence despite specific instructions not

 2   to do so.

 3        The district court ordered broad relief:    (1) it annulled

 4   the positive declaration and findings statement; (2) it ordered

 5   that the Church’s 2000 site plan be deemed approved for SEQRA

 6   purposes and enjoined any further SEQRA review; (3) it ordered

 7   the Board to grant the Church a waiver from the landscaped

 8   parking island requirement; (4) it ordered the Zoning Board to

 9   grant a variance permitting a side building location; (5) it

10   ordered the Town to issue a building permit for the 2000 site

11   plan; (6) it enjoined the Town from taking any action that

12   unreasonably interferes with the Church’s project; and (7) it

13   imposed $10,000 in sanctions for spoliation of evidence.   Id. at

14   520-22.    The district court directed the parties to submit

15   additional information with regard to compensatory damages.    Id.

16   at 520-21.   Judgment was entered on August 12, 2010.   The Town

17   appeals.

18

19                                DISCUSSION

20         On appeal, the Town challenges the district court’s holding

21   that it violated the Church’s rights under RLUIPA, the First and

22   Fourteenth Amendments, the New York Constitution, and Article 78.

23   It also contends that the district court lacked any authority

24   over the Zoning Board, a non-party to this litigation.
                                      11
 1         We review a district court’s conclusions of law after a

 2   bench trial de novo and its findings of fact for clear error.

 3   Reynolds v. Giuliani, 506 F.3d 183, 189 (2d Cir. 2007).     We may

 4   affirm on any ground appearing in the record.    Freedom Holdings,

 5   Inc., v. Cuomo, 624 F.3d 38, 49 (2d Cir. 2010).    The district

 6   court’s grant of injunctive relief is reviewed for abuse of

 7   discretion.    Third Church of Christ, Scientist, of N.Y.C. v. City

 8   of New York, 626 F.3d 667, 669 (2d Cir. 2010).

 9

10   RLUIPA

11   A.   Applicability

12         RLUIPA bars states from imposing or implementing a “land use

13   regulation” in a manner that imposes a substantial burden on a

14   person or institution’s religious exercise unless it is the least

15   restrictive means of furthering a compelling state interest.      42

16   U.S.C. § 2000cc(a)(1).   A “land use regulation” is defined as “a

17   zoning or landmarking law, or the application of such a law, that

18   limits or restricts a claimant’s use or development of land.”      §

19   2000cc-5(5).   Appellants contend that RLUIPA is entirely

20   inapplicable because SEQRA is not a land use regulation within

21   the meaning of the statute.3   Though we agree that SEQRA itself

     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
 1   is not a zoning or landmarking law for purposes of RLUIPA, we

 2   hold that when a government uses a statutory environmental review

 3   process as the primary vehicle for making zoning decisions, those

 4   decisions constitute the application of a zoning law and are

 5   within the purview of RLUIPA.4

 6        Environmental quality laws are designed to inject

 7   environmental considerations into government decisionmaking and

 8   minimize the adverse environmental impact of regulated actions.

 9   See City Council of Watervliet v. Town Bd. of Colonie, 3 N.Y.3d

10   508, 515, 520 n.10 (2004).   This approach was first adopted by

11   the federal government with the National Environmental Policy Act

12   of 1969 (“NEPA”), Pub. L. 91-190, 83 Stat. 852 (1970) (codified

13   as amended at 42 U.S.C. § 4321 et seq.).   See, Caleb W.

14   Christopher, Success by a Thousand Cuts:   The Use of

15   Environmental Impact Assessment in Addressing Climate Change, 9

16   Vt. J. Envtl. L. 549, 552-53 (2008).   A number of states,

17   including New York, have enacted state government review laws

18   patterned after NEPA.   See, e.g., California Environmental

19   Quality Act, Cal. Pub. Res. Code § 21002.1 et seq.

20        No court of appeals has yet addressed whether an

21   environmental quality statute may constitute a zoning law under



     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
 1   RLUIPA.5   Although the purview of “zoning” is hard to delineate

 2   precisely, at its core it involves the division of a community

 3   into zones based on like land use.    See City of Renton v.

 4   Playtime Theatres, Inc., 475 U.S. 41, 54-55 (1986); Daniel R.

 5   Mandelker, Land Use Law, §§ 4.02-4.15 (5th ed. 2003); Patricia E.

 6   Salkin, American Law of Zoning § 9.2 (5th ed. 2008).       We have

 7   little difficulty concluding that SEQRA itself is not a zoning

 8   law within the meaning of RLUIPA.    SEQRA is not concerned with

 9   the division of land into zones based on use.    It is focused on

10   minimizing the adverse environmental impact of a wide range of

11   discretionary government actions, many of which are totally

12   unrelated to zoning or land use.6    See N.Y. Envtl. Conserv. Law §

13   8-0105(4).   Thus, the Town’s use of the SEQRA process did not

14   automatically implicate RLUIPA.

15        By its terms, however, RLUIPA also applies to “the

16   application of” a zoning law.   42 U.S.C. § 2000cc-5(5).    Although


     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
 1   SEQRA by itself is not a zoning law, in this case the Town used

 2   the SEQRA review process as its vehicle for determining the

 3   zoning issues related to the Church’s land use proposal.   The

 4   fact that these issues were addressed during the SEQRA review

 5   process rather than the Town’s normal zoning process does not

 6   transform them into environmental quality issues.   We therefore

 7   conclude that, in these circumstances, the Town’s actions during

 8   the review process and its denial of the Church’s proposal

 9   constituted an application of its zoning laws sufficient to

10   implicate RLUIPA for a number of reasons.

11        First, the SEQRA review process was triggered because the

12   Church required three discretionary land use approvals from the

13   Town: (1) site plan approval, (2) a waiver of the landscaped

14   parking island requirement, and (3) a variance to allow the

15   building to be located closer to one side of the property.    These

16   approvals all relate to zoning and land use rather than

17   traditional environmental concerns.   See Midrash Sephardi, Inc.

18   v. Town of Surfside, 366 F.3d 1214, 1235 n.17 (11th Cir. 2004)

19   (citing regulations about building size and parking as “run of

20   the mill” zoning laws); cf. 6 N.Y.C.R.R. § 617.7(c)(1) (providing

21   examples of adverse environmental impacts under SEQRA).    If the

22   Town had issued a Negative Declaration and foregone SEQRA review,

23   these three issues would have been treated by the Town as zoning

                                    15
 1   questions and their outcome would have been subject to challenge

 2   under RLUIPA.

 3           Second, in its Town Code, the Town has intertwined the SEQRA

 4   process with its zoning regulations.7    The regulations relating

 5   to SEQRA are contained in Part II of the Town Code, titled “Land

 6   Use.”    Section 200-6 of the Town Code states that “[n]o action .

 7   . . shall be carried out, approved or funded by [a Town agency]

 8   unless it has complied with [SEQRA].”    Under § 285-55, site plan

 9   approval is required for a building permit.    Since site plan

10   approval is a discretionary approval that triggers SEQRA, any

11   construction project will involve some level of SEQRA review.       If

12   a positive declaration is issued, the applicant will have to

13   proceed through the SEQRA process before addressing any zoning

14   issues, or resolve those issues during the SEQRA process.       6

15   N.Y.C.R.R. § 617.3(a); Town Code §§ 200-8 – 200-11 (describing

16   SEQRA review process that must be completed).

17           Third, once the review process was underway, the Town

18   focused on zoning issues rather than traditional environmental

19   issues.    The Town’s primary stated concern was increased traffic.

20   Although increased car traffic potentially raises environmental

21   concerns due to increased emissions, the district court’s factual

22   findings make clear that the Town was concerned with the common

     7
         The Town Code is available at http://www.ecode360.com/GR0237.

                                       16
 1   everyday annoyances associated with traffic, not with its

 2   environmental impact.   The Town’s FEIS emphasized concerns about

 3   line of sight for cars turning into the proposed property and the

 4   adequacy of the Church’s parking.    The Town also based denial of

 5   the project on the height of proposed retaining walls and the

 6   alleged failure to comply with a steep slope ordinance.   These

 7   are standard land use issues.

 8        Finally, to hold that RLUIPA is inapplicable to what amounts

 9   to zoning actions taken in the context of a statutorily mandated

10   environmental quality review would allow towns to insulate zoning

11   decisions from RLUIPA review.   A town could negotiate all of a

12   project’s zoning details during a SEQRA review and completely

13   preempt its normal zoning process.   These decisions would then be

14   immune to RLUIPA challenge.   We decline to endorse a process that

15   would allow a town to evade RLUIPA by what essentially amounts to

16   a re-characterization of its zoning decisions.

17        Indeed, the Town’s actions were to that effect

18   notwithstanding that RLUIPA was enacted while the SEQRA review

19   process was underway.   The district court’s comprehensive

20   findings demonstrate that the Town disingenuously used SEQRA to

21   obstruct and ultimately deny the Church’s project.    The Town’s

22   own Planning Commissioner (subsequently replaced by the Town)

23   believed that the alleged environmental impacts did not warrant a

                                     17
 1   positive declaration, but the Town initiated the SEQRA review

 2   process anyway after the Church refused to accede to the Town’s

 3   demand that it donate a fire truck or provide some other payment

 4   in lieu of taxes.   The Town then manipulated its SEQRA findings

 5   statement to “kill” the project on the basis of zoning concerns

 6   despite the fact that there were no serious environmental

 7   impacts.    We decline to insulate the Town from liability with

 8   regard to its decisions on zoning issues simply because it

 9   decided them under the rubric of an environmental quality review

10   process.

11        To recap, in no sense do we believe that ordinary

12   environmental review considerations are subject to RLUIPA.

13   However, when a statutorily mandated environmental quality review

14   process serves as a vehicle to resolve zoning and land use

15   issues, the decision issued constitutes the imposition of a land

16   use regulation as that term is defined in RLUIPA.   See 42 U.S.C.

17   § 2000cc(a)(1); 2000cc-5(5).

18   B. Substantial Burden

19        The Town also argues that, if RLUIPA does apply, the Church

20   was not substantially burdened within the meaning of the statute

21   because the Church had alternative means of building a new

22   facility.   The Town contends that the only harm the Church

23   suffered was an inability to build the exact structure it

                                      18
 1   desired, which does not rise to the level of a substantial

 2   burden.   We find sufficient evidence in the record to support the

 3   district court’s finding that the Church’s current facilities

 4   were inadequate to accommodate its religious practice and that

 5   the Town was acting in bad faith and in hostility to the project

 6   such that it would not have allowed the Church to build any

 7   worship facility and school on the Pomander Drive Property.

 8   Accordingly, we affirm the district court’s holding that the

 9   Town’s actions during the SEQRA process substantially burdened

10   the Church’s religious practice.

11          RLUIPA prohibits a government from imposing a land use

12   regulation in a way that creates a substantial burden on the

13   religious exercise of an institution.8    42 U.S.C. § 2000cc(a)(1).

14   A substantial burden is one that “directly coerces the religious

15   institution to change its behavior.”     Westchester Day Sch. v.

16   Vill. of Mamaroneck, 504 F.3d 338, 349 (2d Cir. 2007) (emphasis

17   omitted).    The burden must have more than a minimal impact on

18   religious exercise, and there must be a close nexus between the

19   two.   Id.

     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
 1        A denial of a religious institution’s building application

 2   is likely not a substantial burden if it leaves open the

 3   possibility of modification and resubmission.    Id.   However, if

 4   the town’s stated willingness to consider another proposal is

 5   disingenuous, a conditional denial may rise to the level of a

 6   substantial burden.   Id.    Moreover, when the town’s actions are

 7   arbitrary, capricious, unlawful, or taken in bad faith, a

 8   substantial burden may be imposed because it appears that the

 9   applicant may have been discriminated against on the basis of its

10   status as a religious institution.     Id. at 350-51; see also

11   Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of

12   New Berlin, 396 F.3d 895, 900 (7th Cir. 2005).

13        The district court credited Karaman’s testimony that the

14   Church’s Mount Vernon facility was not adequate to accommodate

15   its religious practice.     Fortress Bible Church, 734 F. Supp. 2d

16   at 488-90.   Specifically, Karaman stated that the Church was

17   unable to expand its membership, which it believes is a God-given

18   mission, host missionaries, perform full-immersion baptisms, or

19   perform “altar calls,” in which members of the congregation pray

20   at the altar.   Id. at 488-89.    Karaman also testified that the

21   Church was unable to adequately run a Christian school because

22   the School’s present facilities did not have enough space to

23   accommodate handicapped students or higher-level subjects.       Id.

                                       20
 1   at 490-91.   We identify no error in the district court’s finding

 2   that the Church was substantially burdened by its inability to

 3   construct an adequate facility.

 4        Similarly, we find no error in the district court’s finding

 5   that the “Defendants’ purported willingness to consider a

 6   modified plan [was] wholly disingenuous.”    Id. at 502.   The

 7   district court identified ample evidence that the Town wanted to

 8   derail the Church’s project after it refused to accede to its

 9   demand for a payment in lieu of taxes, and that it had

10   manipulated the SEQRA process to that end.   Additionally, the

11   Town continually rejected the Church’s attempts to accommodate

12   its stated concerns.   The record easily supports the district

13   court’s finding that the Town’s actions amounted to a complete

14   denial of the Church’s ability to construct an adequate facility

15   rather than a rejection of a specific building proposal.    See

16   Westchester Day Sch., 504 F.3d at 349.

17        Finally, we conclude, as the district court found based upon

18   ample evidence, that the burden on the Church was more than

19   minimal and that there was a close nexus between the Town’s

20   denial of the project and the Church’s inability to construct an

21   adequate facility.   Fortress Bible Church, 734 F. Supp. 2d at

22   501-08.   Because, as the district court found, the Town’s stated

23   compelling interests were disingenuous, its actions violated

                                       21
 1   RLUIPA.   Id. at 502-05, 508.   Our conclusion that the Church was

 2   substantially burdened is bolstered by the arbitrary, capricious,

 3   and discriminatory nature of the Town’s actions, taken in bad

 4   faith.    Westchester Day Sch., 504 F.3d at 350-51.   The Town

 5   attempted to extort from the Church a payment in lieu of taxes,

 6   it ignored and then replaced its Planning Commissioner when he

 7   advocated on the Church’s behalf, and Town staff intentionally

 8   destroyed relevant evidence.    Further, the district court’s

 9   finding regarding the Town’s open hostility to the Church qua

10   church was not clear error; the record reflects comments from

11   members of the Board indicating that they were opposed to the

12   project because it was “another church.”   The Town’s desire to

13   prevent the Church from building on its property relegated it to

14   facilities that were wholly inadequate to accommodate its

15   religious practice.   We affirm the district court’s finding that

16   the Town violated the Church’s rights under RLUIPA.

17

18   Free Exercise

19        The Town also challenges the district court’s holding that

20   it violated the Church’s First Amendment right to the Free

21   Exercise of Religion.   The First Amendment generally prohibits

22   government actions that “substantially burden the exercise of

23   sincerely held religious beliefs” unless those actions are

                                      22
 1   narrowly tailored to advance a compelling government interest.

 2   Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570,

 3   574 (2d Cir. 2002).   In other words, such actions are subject to

 4   strict scrutiny by reviewing courts.   However, “[w]here the

 5   government seeks to enforce a law that is neutral and of general

 6   applicability, . . . it need only demonstrate a rational basis

 7   for its enforcement.”    Id.; see also Employment Div. v. Smith,

 8   494 U.S. 872, 879 (1990).

 9        In this case, the district court applied strict scrutiny

10   and, referencing its RLUIPA analysis, concluded that the Town had

11   substantially burdened the Church’s religious exercise and lacked

12   a compelling interest.   On appeal, the Town contends that

13   rational basis review, rather than strict scrutiny, is the

14   correct standard in this context because SEQRA is a neutral law

15   of general applicability.   The Church maintains that strict

16   scrutiny is appropriate because SEQRA review involves an

17   individualized assessment, thus placing it outside the purview of

18   Smith.   See Church of the Lukumi Babalu Aye, Inc. v. City of

19   Hialeah, 508 U.S. 520, 537 (1993).

20        The Second Circuit has not specifically addressed whether

21   zoning decisions trigger rational basis review or strict

22   scrutiny.   Although some scattered district court decisions have

23   held that zoning laws by their nature involve individualized

                                      23
 1   assessments and trigger strict scrutiny, see Cottonwood Christian

 2   Ctr. v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1222-

 3   23 (C.D. Cal. 2002); Freedom Baptist Church of Del. Cnty. v. Twp.

 4   of Middletown, 204 F. Supp. 2d 857, 868 (E.D. Pa. 2002), the

 5   majority of circuits that have addressed this question have

 6   concluded that zoning laws with the opportunity for

 7   individualized variances are neutral laws of general

 8   applicability.   See Civil Liberties for Urban Believers v. City

 9   of Chicago, 342 F.3d 752, 764 (7th Cir. 2003); Cornerstone Bible

10   Church v. City of Hastings, 948 F.2d 464, 472 (8th Cir. 1991);

11   Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643,

12   651-55 (10th Cir. 2006); First Assembly of God of Naples, Fla.,

13   Inc. v. Collier Cnty., 20 F.3d 419, 423-24 (11th Cir. 1994).

14   Similarly, this circuit has found a landmarking law to be

15   facially neutral despite the fact that it gave the government the

16   ability to designate “historical districts,” and therefore

17   entailed some measure of individual assessment.   Rector, Wardens,

18   & Members of Vestry of St. Bartholomew’s Church v. City of New

19   York, 914 F.2d 348, 354-56 (2d Cir. 1990).

20        We need not resolve here whether zoning variance decisions

21   challenged under the Free Exercise Clause are subject to strict

22   scrutiny or rational basis review because we conclude that on the

23   record before us there was no rational basis for the Town’s

                                     24
 1   actions.   The district court’s holding was premised on its

 2   finding that the Town had acted in bad faith and disingenuously

 3   misused the SEQRA process to block the Church’s project.   The

 4   district court found as a factual matter that the reasons offered

 5   by the Town for delaying and denying the project were pretextual

 6   and concluded that the Town’s witnesses were not credible.    See

 7   Fortress Bible Church, 734 F. Supp. 2d at 491-94 (providing a

 8   “mere sampling” of examples of non-credible testimony by Town

 9   witnesses), 505-08 (explaining how each of the Town’s stated

10   reasons was pretextual).   The record supports this conclusion.

11   There is no basis to distrust the district court’s finding that

12   the Town’s proffered rational bases were not sincere and that it

13   was instead motivated solely by hostility toward the Church qua

14   church.    Accordingly, we conclude that the Town lacked a rational

15   basis for delaying and denying the Church’s project and therefore

16   violated the Church’s Free Exercise rights.9

17        The Town also presses the argument that the Free Exercise

18   Clause is inapplicable to land use regulations.   It points to

19   decisions from several circuits holding that religious

     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
 1   institutions do not have a constitutional right to build wherever

 2   they like.   See, e.g., Lighthouse Inst. for Evangelism, Inc. v.

 3   City of Long Branch, 510 F.3d 253, 273-74 (3d Cir. 2007);

 4   Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City

 5   of Lakewood, 699 F.2d 303, 306-07 (6th Cir. 1983).    The cases

 6   cited by the Town are inapposite.    In those cases, the proposed

 7   building was directly barred by town ordinance and the religious

 8   institution sought individual relief from the general rule.    The

 9   burden in this case resulted from the Town’s disingenuous bad

10   faith efforts to stall and frustrate this particular Church’s

11   construction plan, which was not itself barred by the Town’s

12   zoning code.   The lengthy SEQRA review process was costly to the

13   Church, and the Church was forced to remain in an inadequate

14   facility for its duration.

15        For these reasons, we affirm the district court’s holding

16   that the Town violated the Church’s First Amendment right to the

17   free exercise of religion.

18

19   Equal Protection

20        The Town argues on appeal that the district court erred in

21   finding a violation of the Fourteenth Amendment’s Equal

22   Protection Clause because the Church’s class-of-one theory is

23   barred by Engquist v. Ore. Dep’t of Agric., 553 U.S. 591 (2008),

                                     26
 1   and because the Church has not provided a single comparator

 2   situated similarly to it in all respects.

 3        The Equal Protection Clause has traditionally been applied

 4   to governmental classifications that treat certain groups of

 5   citizens differently than others.     Id. at 601.   In Village of

 6   Willowbrook v. Olech, 528 U.S. 562, 564 (2000), however, the

 7   Supreme Court affirmed the existence of a class-of-one theory for

 8   equal protection claims, under which a single individual can

 9   claim a violation of her Equal Protection rights based on

10   arbitrary disparate treatment.   In Olech, a property owner sought

11   to connect her property to the municipal water supply.     The

12   village had required a 15-foot easement from other property

13   owners who had sought to connect to the water supply, but

14   demanded a 33-foot easement from Olech.    The Supreme Court

15   recognized an Equal Protection claim “where the plaintiff alleges

16   that she has been intentionally treated differently from others

17   similarly situated and that there is no rational basis for the

18   difference in treatment.”   Id. at 564.

19        Eight years later, in Engquist, the Court clarified that a

20   class-of-one claim is not available in the public employment

21   context.   It based its holding primarily on the government’s

22   status in that context as a proprietor rather than a sovereign,

23   and the corresponding decrease in constitutional protections for

                                      27
 1   its employees.   553 U.S. at 598-99, 605-09.   The Court also noted

 2   that certain governmental functions that involve discretionary

 3   decisionmaking are not suitable for class-of-one claims.    Id. at

 4   603-04.

 5        We have since held that Engquist does not bar all class-of-

 6   one claims involving discretionary state action.   In Analytical

 7   Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135 (2d Cir. 2010), we

 8   recognized a class-of-one claim in the context of a state system

 9   for issuing clinical testing laboratory permits.   We noted that

10   the state was acting as a sovereign rather than a proprieter, and

11   further observed that the licensing panel did not have complete

12   discretion because it operated within a regulatory framework,

13   held a mandatory hearing, and its decision could be challenged

14   under New York Civil Procedure Law Article 78.

15        Like Analytical Diagnostic Labs, this case presents a clear

16   standard against which departures can be easily assessed.   See

17   Engquist, 553 U.S. at 602-03.   The SEQRA review process is guided

18   by regulation and the result can be challenged under Article 78.

19   Additionally, the Town was acting in its regulatory capacity as a

20   sovereign rather than as a proprieter; it was making decisions

21   about the ways in which property owners could use their land.

22   The evidence provided by the Church illustrates a disparity in




                                     28
 1   treatment that cannot fairly be attributed to discretion.    A

 2   class-of-one claim is thus cognizable in this context.

 3        The Town argues that, even if a class-of-one claim is

 4   viable, the Church’s evidence was not sufficient to establish

 5   such a claim because it did not provide a single comparator

 6   similarly situated in all respects, but instead presented

 7   evidence of multiple projects that were each treated differently

 8   with regard to a discrete issue.    We have held that a class-of-

 9   one claim requires a plaintiff to show an extremely high degree

10   of similarity between itself and its comparators.   Ruston v. Town

11   Bd. for Skaneateles, 610 F.3d 55, 59-60 (2d Cir. 2010).     The

12   Church must establish that “(i) no rational person could regard

13   the circumstances of the plaintiff to differ from those of a

14   comparator to a degree that would justify the differential

15   treatment on the basis of a legitimate government policy; and

16   (ii) the similarity in circumstances and difference in treatment

17   are sufficient to exclude the possibility that the defendants

18   acted on the basis of a mistake.”   Id. at 60 (quotation marks

19   omitted).

20        The Church’s use of multiple comparators is unusual, and

21   presents us with a matter of first impression.   We conclude,

22   however, that the Church’s evidence of several other projects

23   treated differently with regard to discrete issues is sufficient

                                    29
 1   in this case to support a class-of-one claim.   The purpose of

 2   requiring sufficient similarity is to make sure that no

 3   legitimate factor could explain the disparate treatment.    See

 4   Neilson v. D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005) (noting

 5   that purpose of comparator requirement is to “provide an

 6   inference that the plaintiff was intentionally singled out for

 7   reasons that so lack any reasonable nexus with a legitimate

 8   governmental policy that an improper purpose . . . is all but

 9   certain”), overruled on other grounds, Appel v. Spiridon, 531

10   F.3d 138, 139-40 (2d Cir. 2008).    Where, as here, the issues

11   compared are discrete and not cumulative or affected by the

12   character of the project as a whole, multiple comparators are

13   sufficient so long as the issues being compared are so similar

14   that differential treatment with regard to them cannot be

15   explained by anything other than discrimination.   We conclude

16   that there is sufficient evidence in the record to support the

17   Church’s class-of-one claim.

18        The principal reasons for denying the Church’s application

19   cited in the Town’s FEIS were violation of a recently enacted

20   “steep slope” zoning ordinance, stress on the police and fire

21   departments, retaining walls that constituted an attractive

22   nuisance, and traffic and parking problems.   A proposal by the

23   Hackley School, located in a mixed-use neighborhood, to double

                                    30
 1   its size, involved the same steep slope concerns as the Church’s

 2   proposal.   The Hackley School proposal was submitted in 2001,

 3   almost three years after the Church’s proposal, and at that time,

 4   the Town had yet to enact its steep slope ordinance.      While

 5   considering the ordinance, the Town ordered a moratorium on steep

 6   slope construction.   It issued the Hackley School a waiver from

 7   this moratorium, however, and then expedited review of the

 8   proposal so that it was approved prior to adoption of the steep

 9   slope ordinance.   Despite the fact that the Church’s proposal was

10   submitted years earlier than the Hackley School’s, the Town cited

11   the Church’s failure to comply with the steep slope ordinance as

12   a basis for denying its proposal and never provided it with a

13   waiver or the option of expedited consideration.

14        The Hackley School proposal also involved retaining walls

15   comparable to those proposed by the Church.    Although the Town

16   did not raise retaining walls as a concern with the Hackley

17   School’s application, it relied on the Church’s proposed

18   retaining walls as a basis for denying the Church’s application,

19   and did so even after the Church had offered to construct a fence

20   on top of its walls to eliminate any danger.

21        Proposals by Union Baptist Church and the Solomon Schechter

22   School both failed to provide the amount of parking required by

23   Town ordinance.    In both instances, however, the Town

                                      31
 1   accommodated the proposals by allowing the use of on-street

 2   parking and approved the projects without requiring the mandated

 3   number of spaces.   The Church’s proposal contained the required

 4   number of spaces, but the Town still cited parking concerns as a

 5   reason for denying it and failed to offer any accommodation.

 6        Finally, the Town’s primary stated reason for issuing a

 7   positive declaration was increased traffic.   However, a proposal

 8   by LDC Properties, Inc., to build a commercial office building

 9   near the same major intersection as the Church’s proposal (“the

10   LOSCO proposal”) received a conditioned negative declaration even

11   though, according to the Town’s own traffic consultant, it raised

12   the same traffic concerns as the Church’s proposal.10   The Town

13   did not require the LOSCO proposers to take any steps to mitigate

14   these traffic concerns.   Similarly, the Solomon Schechter School

15   proposal was located close to the Pomander Drive property and

16   created similar vehicle and pedestrian traffic concerns.   The




     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
 1   Town approved this application without requiring any steps from

 2   the applicant to mitigate traffic.11

 3        In short, the Church has presented overwhelming evidence

 4   that its application was singled out by the Town for disparate

 5   treatment.    Though each of the comparator projects involved

 6   features unique to that proposal, the Town has not explained how

 7   those other features could have influenced discrete issues like

 8   the adequacy of parking, the safety of retaining walls, or

 9   increased traffic.   We recognize that, where multiple reasons are

10   cited in support of a state actor’s decision, it will usually be

11   difficult to establish a class-of-one claim.   However, where, as

12   here, a decision is based on several discrete concerns, and a

13   claimant presents evidence that comparators were treated

14   differently with regard to those specific concerns without any

15   plausible explanation for the disparity, such a claim can

16   succeed.   Further, such a claim is bolstered where, as here, the

17   evidence demonstrates that the government’s stated concerns were

18   pretextual.   We affirm the district court’s conclusion that the

19   Church has adequately established a class-of-one Equal Protection

20   claim.


     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
 1   Article 78

 2        Under Article 78 of New York’s Civil Procedure Law, a town’s

 3   SEQRA determination may be set aside when it is “arbitrary,

 4   capricious or unsupported by the evidence.”   Riverkeeper, Inc. v.

 5   Planning Bd. of Southeast, 9 N.Y.3d 219, 232 (2007).   The

 6   district court held that the Town’s determination was not

 7   supported by substantial evidence because the Town’s stated

 8   concerns were either “unsupported” or “wholly fabricated.”

 9   Fortress Bible Church, 734 F. Supp. 2d at 519.   The Town contends

10   that its findings were rationally based on the findings of its

11   traffic consultant, and that the district court’s decision was

12   therefore in error.

13        As we have previously discussed, the record contains ample

14   evidence to support the district court’s conclusion that the

15   Town’s actions were wholly disingenuous.   Accordingly, we

16   identify no error with the district court’s decision to set aside

17   the Town’s SEQRA determination.

18

19   The District Court’s Injunction

20        Finally, the Town argues that the district court abused its

21   discretion in crafting its injunction because it was not

22   permitted to enjoin “governmental determinations that have not

23   yet been made,” Appellant’s Br. at 37, and because it had no

                                       34
 1   authority to bind the Zoning Board, which was not a party to the

 2   litigation.

 3        We review a district court’s grant of injunctive relief for

 4   abuse of discretion.   See Etuk v. Slattery, 936 F.2d 1433, 1443

 5   (2d Cir. 1991).   A district court has substantial freedom in

 6   framing an injunction.   Id.   The district court’s injunction: (1)

 7   ordered that the Church’s 2000 site plan be deemed approved for

 8   SEQRA purposes and enjoined any further SEQRA review; (2) ordered

 9   the Board to grant the Church a waiver from the landscaped

10   parking island requirement; (3) ordered the Zoning Board to grant

11   a variance permitting a side building location; (4) ordered the

12   Town to issue a building permit for the 2000 site plan; and (5)

13   enjoined the Town from taking any action that unreasonably

14   interferes with the Church’s project.

15        With regard to its first argument, the Town relies on

16   Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010).

17   Geertson involved a suit against the Animal and Plant Health

18   Inspection Service (“APHIS”).    APHIS had decided to completely

19   deregulate a certain species of genetically modified alfalfa.

20   The district court enjoined APHIS from fully deregulating the

21   alfalfa, and further issued an injunction preemptively barring

22   APHIS from implementing any partial deregulation plan.   The

23   Supreme Court held that the latter portion of the injunction was

                                      35
 1   an abuse of the district court’s discretion because the

 2   plaintiffs could file a new suit if APHIS actually attempted

 3   partial deregulation and there was no evidence that partial

 4   deregulation would cause the same irreparable harm as full

 5   deregulation.   Id. at 2760-61.    Geertson has no bearing on the

 6   present case.   The district court’s injunction was specifically

 7   tailored to the injury the Church had suffered and did not exceed

 8   the district court’s discretion.

 9        The Town also argues that the portion of the injunction

10   compelling the Zoning Board to grant a variance permitting a side

11   building location exceeded the district court’s authority

12   because, under New York law, the Zoning Board is a separate

13   entity from the Town over which the district court had no

14   jurisdiction.   See Commco, Inc. v. Amelkin, 62 N.Y.2d 260, 265-68

15   (1984) (town board has no authority to bind the town’s zoning

16   board to a consent decree to which the zoning board was not a

17   party).   We need not reach this question, however, because the

18   Town did not raise this objection before the district court and

19   has therefore waived it on appeal.     See In re Nortel Networks

20   Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008).

21

22

23

                                       36
1                              CONCLUSION

2        For the reasons described above, the Town’s arguments on

3   appeal are without merit and we conclude that the relief ordered

4   by the district court was within its discretion.   The judgment of

5   the district court is AFFIRMED.




                                      37
